Motion for Leave in JUAN CASTRO ET AL VS KEVIN SUK M D ET AL| Trellis.Law

On June 18, 2018 a Motion,Ex Parte was filed involving a dispute between Castro Graciela, Castro Juan, and Michael Samuel M.D. Inc., Retina Institute Of California, Retina Institute Of California Medical Group Doe 5, San Gabriel Ambulatory Surgery Center L., Suk Kevin M.D., Tom S. Chang M.D. Inc., for civil in the District Court of Los Angeles County.

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Electronically FILED by Superior Court of California, County of Los Angeles on 01/20/2021 03:44 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Scott,Deputy Clerk

1 Jacob I. Mojarro (SBN 289339)
MOJARRO LAW, P.C.
2 612 West Whittier Boulevard
Montebello, California 90640
3 Telephone: (323) 767-8500
Facsimile: (323) 767-8501
4
Attorneys for Plaintiffs
5 JUAN CASTRO and GRACIELA CASTRO

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF LOS ANGELES, BURBANK COURTHOUSE

10 JUAN CASTRO, an individual; and GRACIELA Case No. BC710866
CASTRO, an individual,
11
Plaintiffs PLAINTFF’S MOTION FOR LEAVE TO
12 FILE A AMENDED COMPLAINT
vs
13 Date: February 11, 2021
KEVIN SUK, M.D. an individual; TOM S. CHANG Time: 1:30pm
14 M.D., INC., a California Corporation, d.b.a. RETINA Dept.: A
INSTITUTE OF CALIFORNIA; MICHAEL
15 SAMUEL M.D., INC., a California Corporation, Original Complaint Filed 06/18/2018
d.b.a. RETINA INSTITUTE OF CALIFORNIA; SAN Amended Complaint Filed 12/11/2019
16 GABRIEL AMBULATORY SURGERY CENTER,
L.P., a California Limited Partnership; and DOES 1-
17 10, inclusive, RES ID: 156209857274
18
Defendants
19

20
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
21
PLEASE TAKE NOTICE that on February 11, 2021 at 1:30pm, or as soon thereafter as this
22
matter may be heard, in Department A of the above-entitled court located at 300 East Olive, Burbank,
23
CA 91502, Plaintiffs and JUAN CASTRO (“CASTRO”) and GRACIELA CASTRO (collectively with
24
CASTRO as “Plaintiffs”) will and hereby does move the Court for leave to file a Second Amended
25
Complaint (“2AC”) alleging new alter ego allegations.
26
This Motion shall be based on this Notice, the proceeding memorandum of points and authorities
27
in support thereof, the [Proposed] Second Amended Complaint attached hereto as Exhibit A; and the
28

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1
31 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
1 Declaration of Jacob I. Mojarro concurrently filed herewith, the files and records in this action, and any
2 other further oral and documentary evidence as may be presented at the hearing.
3

4 Dated. January 20, 2020
5 MOJARRO LAW, P.C.

7
.
8 Jacob I. Mojarro
Attorney for Plaintiffs
9 JUAN CASTRO AND GRACIELA CASTRO
10

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2
31 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 On September 11, 2020, the deposition of Defendant Kevin Suk M.D. (“SUK”) was held.
4 Pursuant to compelling further deposition responses, the following facts were discovered.
5 Per SUK’s testimony, he is a partner in Retina Institute of California (“RETINA”), and also owns
6 shares in San Gabriel Ambulatory Surgery Center LP (“SGASC”). Both of these entities are named as
7 Defendants in this lawsuit.
8 SUK further testified that all members of SGASC sold their shares to Acuity Eye Group
9 (“ACUITY”), making ACUITY the owner of SGASC.
10 Both Acuity Eye Group and Retina Institute of California are the registered trademarks of
11 California Clinic Management LLC (“CCM”). Because ACUITY acquired all shares of SGASC, this
12 suggests that CCM is the actual owner of SGASC, as well as any liability SGASC may have accrued.
13 SGASC registered a general partner named CHW/USP San Gabriel GP, LLC in 2003 (“San
14 Gabriel GP”). However, San Gabriel GP has not been active since 2009, and pursuant to public records
15 documents, SGASC has not amended the partnership to account for the inactivity of their partner.
16 Additionally, SUK testified that the Medical Board licenses for Acuity and SGASC are both for
17 fictitious businesses.
18 II. HISTORY OF AMENDMENTS
19 Plaintiffs filed the initial complaint in this matter on June 18, 2018. On December 11, 2019,
20 Plaintiff amended the complaint of their own volition due to the fact that per SUK’s testimony, new facts
21 and circumstances have come to light, which necessitate the amending of the First Amended Complaint
22 to properly address the liability of the various parties.
23 III. PROPOSED AMENDMENTS
24 1. Retina Institute of California Medical Group has been named as a Defendant on page 2, paragraph 4,
25 lines 5 through 17.
26 2. Defendant San Gabriel Ambulatory Surgery Center, L.P. (“SGASC”) has been reclassified as a
27 dissolved limited partnership, and its party information now references SGASC’s former general
28

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31 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
1 partner, CHW/USP San Gabriel Surgery Centers, LLC, which has been a cancelled entity within the
2 state of California since 2009. Page 2, paragraph 5, lines 18 through 22.
3 3. Trilogy Eye Medical Group, Inc. d.b.a. Acuity Eye Group has been named as a Defendant. Page 2,
4 paragraph 7, lines 26 through 28.
5 4. California Clinic Management LLC (“CCM”) has been named as a Defendant. Page 3, paragraph 8,
6 lines 1 through 3.
7 5. Allegations regarding CCM’s ownership of the trademarks for both Acuity Eye Group and Retina
8 Institute of California have been added to the parties section. Page 3, paragraph 9, lines 4 through 6.
9 6. Allegations regarding the sale of SGASC’s shares to Acuity Eye Group have been added to the
10 parties section. Page 3, paragraph 9, lines 4 through 6.
11 7. A section pertaining to alter ego allegations has been added. Page 3, paragraphs 13, , lines 24 through
12 28, and page 4, paragraphs 14 through 17, lines 1 through 13.
13 8. The Second cause of action for Res Ipsa Loquitur Negligence has been amended to be alleged against
14 all Defendants. Page 6, paragraphs 37-38, lines 20 through 28, and page 7, paragraphs 39 through 42,
15 lines 1 through 12.
16 9. The third cause of action for Lack of Informed Consent has been amended to be alleged against Suk
17 and Retina Institute. Page 7, paragraphs 43-47, lines 15 through 28, and page 8, paragraph 48, lines 1
18 through 2.
19 10. A Fifth cause of action for Negligent Infliction of Emotional Distress has been added and alleged
20 against all Defendants. Page 9, paragraphs 58-65, lines 1-28, and page 10, paragraph 66, lines 1
21 through 2.
22 11. Other, minor clerical changes to accommodate for the aforementioned substantive changes to the
23 existing allegations.
24 ARGUMENT
25 IV. MOTION FOR LEAVE TO AMEND ARE LIBERALLY GRANTED BY COURTS
26 The Court may grant leave to amend a pleading at any time to achieve substantial justice.
27 Pursuant to Code of Civil Procedure §473(a) “The court may, in furtherance of justice, and on any terms
28 as may be proper, allow a party to amend any pleading…”, emphasis added. CCP §576 states, “Any
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31 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
1 judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such
2 terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”
3 California judicial policy favors permitting amendments to pleadings. See Nestle v. Santa Monitca (1972)
4 6. Cal.3d 920, 939 (nothing “the general rule…of liberal allowance of amendments”); Mabie v. Hyatt
5 (1998) 61 Cal. App.4th 581, 596 (“If discovery and investigation develop factual grounds justifying a
6 timely amendment to a pleading, leave to amend must be liberally granted”); see also Berman v.
7 Bromberg (1997) 56 Cal.App.4th 936, 945 (right to amend pleadings “to correct inadvertent
8 misstatements of facts or erroneous allegations of terms”).
9 The policy favoring leave to amend is so strong that it is an abuse of discretion to deny an
10 amendment unless the adverse party can show meaningful prejudice, such as the running of the statute of
11 limitations, trial delay, the loss of critical evidence, or added preparation costs. Atkinson v. Elk Corp.
12 (2003) 109 Cal.App.4th 739, 761; Solit v. Taokai Bank, Ltd. (1999) 68 Cal.App.4th 1435, 1448. Absent a
13 showing of such prejudice, delay alone is not grounds for denial of a motion to amend. See Kittredge
14 Sports Co. v. Superior Ct. (1989) 213 Cal.App.3d 1045, 1048; Higgins v. Del Faro (1981) 123
15 Cal.App.3d 558, 563-65.
16 V. NEW CIRCUMSTANCES REQUIRE THE MOVING PARTY TO AMEND THE
17 COMPLAINT
18 SUK’s testimony has shed new light on the relationship between the corporate entity defendants
19 that have been named in this matter. More specifically, per SUK’s testimony, the various parties names
20 as defendants in this matter, person and nonperson, are more entwined than Plaintiff had initially
21 realized.
22 Plaintiff’s botched surgery was performed by SUK at SGASC. Logically, liability would be
23 accrued by both parties in this instance. However, all shares in SGASC are currently owned by Acuity
24 Eye Group, meaning that ACUITY bears liability for SGASC’s conduct. Furthermore, ACUITY is a
25 registered trademark of California Clinic Management LLC. Thus, per the chain of ownership establishd
26 by SUK’s testimony, liability from SGASC’s actions would pass from SGASC to ACUITY to this as of
27 yet unnamed entity, California Clinic management LLC (“CCM”). This necessitates the naming of
28 CCM as an interested party in the instant action.
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31 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
1 VI. PLAINTIFFS WILL BE UNFAIRLY PREJUDICED IF LEAVE IS NOT GRANTED FOR
2 THE PROPOSED AMENDMENTS
3 Defendants have shown that they will dissolve entities and change ownership to avoid liability.
4 Amendments for alter ego allegations are necessary for Plaintiff’s to enforce any award for relief
5 obtained in this matter
6

8 VII. CONCLUSION
9 Based on the foregoing reasons, Plaintiff respectfully requests that the Court grant leave for
10 Plaintiff to file their Amended Complaint.
11

12 Dated. January 20, 2021
13 MOJARRO LAW, P.C.

15
.
16 Jacob I. Mojarro
Attorney for Plaintiffs
17

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4
31 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
1

9
10

15 EXHIBIT A
16

28
1 Jacob I. Mojarro (SBN 289339)
MOJARRO LAW, P.C.
2 612 West Whittier Boulevard
Montebello, California 90640
3 Telephone: (323) 767-8500
Facsimile: (323) 767-8501
4
Attorney for Plaintiffs,
5 JUAN CASTRO and GRACIELA CASTRO
6

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES, CENTRAL DISTRICT
10 JUAN CASTRO, an individual; and GRACIELA Case No. BC710866
CASTRO, an individual,
11
[PROPOSED] COMPLAINT FOR DAMAGES
12 Plaintiffs,
1. MEDICAL NEGLIGENCE
13 vs. 2. RES ISPA LOQUITOR NEGLIGENCE
3. LACK OF INFORMED CONSENT
14 4. LOSS OF CONSORTIUM
KEVIN SUK, M.D. an individual; TOM S. 5. NEGLIGENT INFLECTION OF
15 CHANG M.D., INC., a California Corporation, EMOTIONAL DISTRESS
d.b.a. RETINA INSTITUTE OF CALIFORNIA;
16 MICHAEL SAMUEL M.D., INC., a California
Corporation, d.b.a. RETINA INSTITUTE OF JURY TRIAL DEMANDED
17 CALIFORNIA; SAN GABRIEL
AMBULATORY SURGERY CENTER, L.P., a
18 California Limited Partnership; RETINA
INSTIUTE OF CALIFORNIA MEDICAL
19 GROUP, a California Partnership; TRILOGY
EYE MEDICAL GROUP, INC, a California
20 Corporation; CALFORNIA CLINIC
MANAGEMENT LLC, a California Limited
21 Liability Company and DOES 1-100, inclusive,
22
Defendants.
23

25 Plaintiffs JUAN CASTRO and GRACIELA CASTRO allege as follows:
26 PARTIES
27 1. Plaintiff JUAN CASTRO (“JUAN”) is a resident of the County of Los Angeles, State of
28 California.
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31 [PROPOSED] SECOND AMENDED COMPLAINT
1 2. Plaintiff GRACIELA CASTRO (“GRACIELA” and collectively with JUAN as “PLAINTIFFS”)
2 is a resident of the County of Los Angeles, State of California.
3 3. PLAINTIFFS are informed and believes and thereon alleges that Defendant KEVIN SUK, M.D.
4 (“SUK”) is an individual residing in the state of California, County of Los Angeles.
5 4. PLAINTIFFS are informed and believes and thereon alleges that Defendant TOM S. CHANG
6 M.D. INC., d.b.a. RETINA INSTITUTE OF CALIFORNIA (“CHANG INC.”) is a corporation doing
7 business in the State of California, County of Los Angeles. PLAINTIFFS are informed and believes and
8 thereon alleges that Defendant TOM S. CHANG M.D. INC., d.b.a. RETINA INSTITUTE OF
9 CALIFORNIA (collectively with CHANG INC as “CHANG”) is an individual doing business as
10 CHANG, INC, in the State of California, County of Los Angeles. PLAINTIFFS are informed and
11 believes and thereon alleges that Defendant MICHAEL SAMUEL MD. INC doing business as RETINA
12 INSTITUTE OF CALIFORNIA (“SAMUEL” ) is a corporation doing business in the State of
13 California, County of Los Angeles. PLAINTIFFS are informed and believes and thereon alleges that
14 Defendant RETINA INSTITUTE OF CALIFORNIA MEDICAL GROUP (“RIC”) was and is a
15 California partnership consisting of CHANG and SAMUEL, among others (RIC collectively with
16 CHANG and SAMUELS and unknown partners as “RETINA”) and doing business as RETINA
17 INSTITUTE OF CALIFORNIA.
18 5. PLAINTIFFS are informed and believes and thereon alleges that Defendant SAN GABRIEL
19 AMBULATORY SURGERY CENTER, L.P. (“SGASC”) is a dissolved Limited Partnership, whose
20 general partner CHW/USP SAN GABRIEL SURGERY CENTERS, LLC, has been cancelled entity
21 with the California Secretary of State since April 2009. SGASC continues to doing business in the State
22 of California, County of Los Angeles.
23 6. PLAINTIFFS are informed and believes and thereon alleges that all relevant times stated herein
24 the owners/partners of SGASC are the same as the owners/partners of RIC and all liability to SGASC,
25 as a dissolved entity, revert back to the owners and partners.
26 7. PLAINTIFFS are informed and believe and thereon allege that Defendant TRILOGY EYE
27 MEDICAL GROUP, INC, d.b.a. ACUITY EYE GROUP (“ACUITY”) is a corporation doing business
28 in the State of California, County of Los Angeles.
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31 [PROPOSED] SECOND AMENDED COMPLAINT
1 8. PLAINTIFFS are informed and believe and thereon allege that Defendant CALIFORNIA
2 CLINIC MANAGEMENT LLC (“CCM”) is a limited liability company doing business in the State of
3 California, County of Los Angeles.
4 9. Upon information and belief, CCM owns the trademarks for both ACUITY EYE GROUP and
5 RETINA INSTITUTE OF CALIFORNIA, and conducts business in the state of California under both
6 names.
7 10. Upon information and belief, all owners of SGASC sold their shares to ACUITY, making CCM
8 the owner of SGASC at all times relevant to this matter by way of CCM’s ownership of the ACUITY
9 trademark.
10 11. PLAINTIFFS are ignorant of the true names and capacities of Defendants DOES 1 through 100,
11 whether individual, corporate, associate, or otherwise, and therefore sue these defendants by such
12 fictitious names. PLAINTIFFS will amend this complaint to allege their true names and capacities when
13 ascertained. PLAINTIFFS are informed and believes and thereon alleges that each of these fictitiously
14 named Doe Defendants is responsible in some manner for the occurrences herein alleged and
15 proximately caused injury and damages to PLAINTIFFS are herein alleged.
16 12. PLAINTIFFS are informed and believes and thereon alleges, that each of the DEFENDANTS are
17 and were at all times relevant to this action, an agent, servant, employee, partner, joint venture, parent
18 corporation, sister corporation and/or alter-ego of the remaining DEFENDANTS, and, in doing the things
19 herein alleged, was acting within the course and scope of that relationship. PLAINTIFFS are further
20 informed and believes, and thereon alleges, that each of the DEFENDANTS herein gave consent to,
21 ratified, and/or authorized the acts alleged herein, of each of the remaining DEFENDANTS, except as
22 may be hereinafter otherwise specifically alleged.
23 ALTER EGO ALLEGATIONS
24 13. CCM owns the trademarks to both ACUITY and RETINA, and conducts business under both
25 business names in the state of California. CCM, ACUITY and RETINA share the same officers,
26 directors, and principals (including but not limited to shared interests owned by CHANG), as well as the
27 same business address and location. At all times relevant hereto, there is and was such a unity of interest
28 of ownership of Defendants CCM, ACUITY, and RETINA that their separate legal identities are
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31 [PROPOSED] SECOND AMENDED COMPLAINT
1 merged, and all persons form a single enterprise that there would be an inequitable result if the wrongful
2 conduct herein described is treated as being performed by one.
3 14. Upon information and belief, CHANG formed or caused to be formed CCM, ACUITY and
4 RETINA to be sister companies and a single joint enterprise. At all times relevant to this matter,
5 CHANG has played management roles in CCM, ACUITY, and RETINA.
6 15. On information and belief, ACUITY acquired ownership of SGASC, rendering the joint
7 enterprise as de facto owner of SGASC.
8 16. Upon information and belief, CCM is a joint enterprise with ACUITY and RETINA and said
9 joint enterprise successor in interest and bears direct liability for misconduct and negligence by SGASC.
10 17. At all times relevant hereto, ACUITY and RETINA are and were the alter egos of CCM, and
11 there exists, and at all relevant times herein has existed, a unity of interest and ownership between
12 Defendants such that any separateness between them has ceased to exist in that each Defendant
13 completely controlled, dominated, managed, and operated the other Defendants to suit his convenience.
14 FACTUAL ALLEGATIONS
15 18. At all times mentioned in this complaint, Defendants SUK, RETINA, SGASC and DOES 1
16 through 100 (collectively “DEFENDANTS”) were and are physicians and surgeons or other health care
17 providers duly licensed to practice medicine in the State of California.
18 19. This case arises from DEFENDANT’S medical negligence in the handling of a surgical procedure
19 to JUAN’s left eye, which resulted in JUAN contracting methicillin-resistant Staphylococcus aureus
20 (MRSA), a dangerous bacterial infection known to be caused by surgical neglect or a failure to follow
21 disinfection and sterilization protocol prior to surgery. The contracting of MRSA further resulted in the
22 permanent loss and removal of JUAN’s left eye on June 27, 2017.
23 20. Prior to the surgery, JUAN had been referred to SUK and RETINA INSTIUTE to treat a vitreous
24 hemorrhage affecting vision in JUAN’s left eye.
25 21. JUAN meet with SUK who advised that a surgical vitrectomy was the only option to remove the
26 vitreous hemorrhage and treat JUAN’s condition. SUK told JUAN that the vitrectomy was a “simple”
27 operation and the only requirement was for JUAN to complete a Pre-Operation Evaluation.
28

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31 [PROPOSED] SECOND AMENDED COMPLAINT
1 22. At no point did DEFENDANTS, or any of them, inform JUAN of the risk of infection from
2 MRSA or any other infection that poses a risk during surgery.
3 23. On June 14, 2017, JUAN underwent a vitrectomy at SGASC to remove the vitreous hemorrhage
4 from his left eye. The procedure was performed by SUK, from the RETINA INSTITUE.
5 24. The following day, JUAN began to experience pain in his left eye and went to see SUK at the
6 RETINA INSTIUTE offices in Pasadena to treat his pain.
7 25. Despite the known risk of infection that may occur during surgery, SUK and the RETINA
8 INSTITUTE failed to diagnose or treat any possible infection that would be affecting JUAN’s eye.
9 Rather SUK and RETINA INSTITUTE merely told JUAN to sleep with the head of his bed elevated and
10 return for a follow-up appointment in one week.
11 26. JUAN’s pain only increased with significant swelling and mucous discharge in the left eye.
12 JUAN’s pain became unbearable and it necessitated for him seek emergency treatment at the Kaiser
13 Permanente Downey Medical Center (“Kaiser”) on June 18, 2017, where he was admitted same day.
14 27. Initial tests performed at Kaiser evidenced that JUAN had a high white blood cell count
15 indicating an infection had possibly developed. It was subsequently determined that there was a MRSA
16 infection in the interior on the left eye, which required JUAN to be transferred to UCLA Medical Center
17 on June 23, 2017.
18 28. JUAN was hospitalized at UCLA Medical Center from June 23, 2017 to June 27, 2017 for
19 unsuccessful antibiotic treatment and the eventual surgical removal of his eye to stop the infection of
20 MRSA from spreading to his brain.
21 29. On November 13, 2017, PLAINTIFFS provided DEFENDANTS with notice of JUAN’S claims
22 pursuant to Code of Civil Procedure § 364 et seq.
23 FIRST CAUSE OF ACTION
24 MEDICAL NEGLIGENCE - AGAINST ALL DEFENDANTS
25 30. PLAINTIFFS re-alleges and incorporates herein paragraphs 1 through 20, of this complaint, as
26 though fully set forth.
27

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31 [PROPOSED] SECOND AMENDED COMPLAINT
1 31. JUAN sought DEFENDNANT for the purpose of receiving medical care and treatments for
2 valuable consideration. These DEFENDANTS, and each of them, agreed to provide medical care,
3 treatments, and examinations to Plaintiff in return for valuable consideration.
4 32. DEFENDANTS undertook the care and treatment of JUAN and rendered professional services in
5 order to treat JUAN’s vision condition through a surgical vitrectomy.
6 33. At the time and place of JUAN’s surgery, DEFENDANTS, and each of them, failed to exercise
7 the proper degree of knowledge and skill, and so negligently, carelessly, recklessly and wantonly failed
8 to adequately and properly treat JUAN, resulting in a painful MRSA infection to JUAN’s operated eye.
9 34. In particular, DEFENDANTS failed to fully inform JUAN of the risk of infection that could
10 result from a surgical vitrectomy, failed to take the proper precautions to assure that a MRSA infection
11 would not be contracted by JUAN during his surgery, and failed to immediately diagnose and treat a
12 MRSA infection after JUAN gave notice of pain caused by this infection.
13 35. As result, JUAN required extended hospitalization until it was determined that the JUAN’s eyes
14 would need to be removed.
15 36. As a direct and proximate result of the negligence, carelessness, recklessness, wantonness and
16 unlawfulness of defendants, and each of them, providing medical care and the resulting incident, as
17 aforesaid, JUAN sustained severe and serious injury to his person, all to JUAN’s damage in a sum within
18 the jurisdiction of this Court and to be shown according to proof.
19

20 SECOND CAUSE OF ACTION
21 RES IPSA LOQUITUR NEGLIGENCE –AGAINST ALL DEFENDANT
22 37. PLAINTIFFS re-alleges and incorporates herein paragraphs 1 through 27, of this complaint, as
23 though fully set forth.
24 38. At all times herein mentioned DEFENDANTS knew, or in the exercise of ordinary and
25 reasonable care should have known that the surgical procedure being performed on JUAN carried the risk
26 of bacterial or staph infection and had a duty to take all precautions to minimize the possibility of the
27 patient contracting such an infection.
28

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31 [PROPOSED] SECOND AMENDED COMPLAINT
1 39. The infection of MRSA to JUAN’s inner left eye during a surgical vitrectomy could not have
2 occurred unless there was medical negligence during the operation or a failure to take proper precautions
3 in the process of operating upon JUAN’s left eye.
4 40. At all times during the surgical vitrectomy, JUAN was under the care and control of defendants,
5 SUK, RETINA INSTITUTE, and SGASC, and the surgical team assisting and performing the operation
6 who are named as DOES 1-5.
7 41. JUAN was under general anesthesia during the surgical procedure. Accordingly, he could not
8 have caused or contributed to DEFENDANT’s negligence during the surgery or in the failure to take
9 proper precautions in the process of surgery.
10 42. As a direct and proximate result of DEFENDANT’S negligence and carelessness, JUAN suffered
11 a severe infection and was hospitalized for an extended period of time, which further resulted in JUAN
12 being forced to have his left eye removed in order to prevent the infection from spreading to his brain.
13 THIRD CAUSE OF ACTION
14 LACK OF INFORMED CONSENT – AGAINST SUK AND RETINA INSTITUTE
15 43. PLAINTIFFS re-allege and incorporates herein paragraphs 1 through 33, of this complaint, as
16 though fully set forth.
17 44. Prior to the vitrectomy, SUK and RETINA INSTITURE had only informed JUAN that the
18 surgery was “simple”, and JUAN’s only option to remove the vitreous hemorrhage.
19 45. At no point did DEFENDANTS inform JUAN that the procedure carried the risk of infection, nor
20 did SUK obtain any form of written consent from JUAN confirming his understanding of such risks.
21 46. Defendants SUK, RETINA INSTITUTE, SGASC and DOES 5-6, failed to make a reasonable
22 disclosure to the patient of the choices of available treatment and the potential dangers inherent in each.
23 47. JUAN’s consent for the vitrectomy was obtained based on his understanding that the procedure
24 was a simple one, and that it was his only option. Had DEFENDANTS adequately informed JUAN of all
25 the significant risks involved with the surgical procedure, then a reasonable person in JUAN’s position
26 would not have so consented to undergo a procedure that could potentially result in a life-threatening
27 infection and would have first explored other options to cure his vitreous hemorrhage.
28

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31 [PROPOSED] SECOND AMENDED COMPLAINT
1 48. As a direct and legal result of the foregoing, JUAN was hospitalized for an extended period of
2 time and suffered the permanent removal of his left eye.
3 FOUTH CAUSE OF ACTION
4 LOSS OF CONSORTIUM – AGAINST ALL DEFENDANTS
5 49. PLAINTIFFS re-alleges and incorporates herein paragraphs 1 through 39, of this complaint, as
6 though fully set forth.
7 50. On June 14, 2017, and at all times relevant to this complaint, JUAN and GRACIELA were
8 husband and wife.
9 51. As a further legal result of the conduct of DEFENDANTS, and each of them, and the resulting
10 injury of JUAN, GRACIELA has been deprived of JUAN’s services as her husband.
11 52. Before JUAN suffered his injury, he was able to and did perform all the duties of a husband,
12 including providing love, companionship, affection, society, sexual relations, moral support, solace and
13 assistance in maintain and operating the home to GRACIELA.
14 53. Due to the injury he suffered, JUAN is incapable of performing everyday tasks such as driving
15 himself, or operating independently outside their home, forcing GRACIELA to resign from her position
16 as security guard and care for his needs full time.
17 54. Furthermore, JUAN has suffered severe depression, which has resulted in a general loss in his
18 enjoyment of life, and consequently, has made it difficult for him to be emotionally intimate with
19 GRACIELA.
20 55. Finally, since the loss of his eye JUAN and GRACIELA have been incapable of engaging in
21 sexual relations due to the emotional and physical discomfort JUAN’s injury causes him.
22 56. By reason of said injuries suffered and sustained by JUAN, GRACIELA has been deprived of the
23 love, companionship, affection, society, sexual relations, and solace of her husband, all to her further
24 damage.
25 57. GRACIELLA is informed and believes and thereon alleges that the injury to her husband are of a
26 permanent nature, and she will continue to be deprived of his consortium for the foreseeable future, all to
27 her further damage in an amount to be shown according to proof.
28 //
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31 [PROPOSED] SECOND AMENDED COMPLAINT
1 FIFTH CAUSE OF ACTION
2 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS – AGAINST ALL DEFENDANTS
3 58. PLAINTIFFS re-alleges and incorporates herein paragraphs 1 through 58, of this complaint, as
4 though fully set forth.
5 59. At all times herein mentioned DEFENDANTS knew, or in the exercise of ordinary and
6 reasonable care should have known that the surgical procedure being performed on JUAN carried the risk
7 of bacterial or staph infection and had a duty to take all precautions to minimize the possibility of the
8 patient contracting such an infection.
9 60. The infection of MRSA to JUAN’s inner left eye during a surgical vitrectomy could not have
10 occurred unless there was medical negligence during the operation or a failure to take proper precautions
11 in the process of operating upon JUAN’s left eye.
12 61. At all times during the surgical vitrectomy, JUAN was under the care and control of defendants,
13 SUK, RETINA INSTITUTE, and SGASC, and the surgical team assisting and performing the operation
14 who are named as DOES 1-5.
15 62. JUAN was under general anesthesia during the surgical procedure. Accordingly, he could not
16 have caused or contributed to DEFENDANT’s negligence during the surgery or in the failure to take
17 proper precautions in the process of surgery.
18 63. As a direct and proximate result of DEFENDANT’S negligence and carelessness, JUAN suffered
19 a severe infection and was hospitalized for an extended period of time, which further resulted in JUAN
20 being forced to submit to the removal of his left eye in order to prevent the infection from spreading to
21 his brain.
22 64. As a result of his injury, JUAN is incapable of performing everyday tasks such as driving a car or
23 operating independently outside his home, forcing GRACIELA to resign from her position as security
24 guard and care for his needs full time.
25 65. JUAN’s injury has irreparably changed the quality of his life. Following his injury, JUAN has
26 suffered severe depression stemming from the burden he feels his new lifestyle has placed upon his
27 family, which has resulted in a emotional distress and a general loss in his enjoyment of life.
28

30
9
31 [PROPOSED] SECOND AMENDED COMPLAINT
1 66. JUAN’s emotion distress was a direct result of the injury caused by DEFENDANTS’ negligent
2 conduct.
3 PRAYER
4 WHEREFORE, PLAINTIFFS prays for judgment from DEFENDANTS and each of them as
5 follows:
6 1. For general, special, actual and compensatory damages in the sum according to proof at the
7 time of trial;
8 2. For loss of earnings, both past and future, and loss of financial support and services, and other
9 economic damages in an amount according to proof at the time of trial;
10 3. For loss of society, sexual relations, love, comfort, affection;
11 4. For cost of suit, including expert witness fees, incurred herein;
12 5. For all other relief that the court deems fair and proper.
13

30
10
31 [PROPOSED] SECOND AMENDED COMPLAINT
1 Dated: January __, 2021 MOJARRO LAW, P.C.

4 Jacob I. Mojarro
Attorney for PLAINTIFFS
5 JUAN CASTRO & GRACIELA CASTRO

30
11
31 [PROPOSED] SECOND AMENDED COMPLAINT
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not
a party to the within action; my business address is 612 W. Whittier Blvd, Montebello, CA 90640.
4
I hereby certify that on January 20, 2021 I served the foregoing document(s) described as:
5
PLAINTFF’S MOTION FOR LEAVE TO FILE A AMENDED COMPLAINT
6
on the parties in this action by placing copies thereof enclosed in sealed envelopes, unless otherwise
7 indicated, addressed as follows and delivered in the manner stated below:
8 Gregory D. Were Karen Bocker
Reback, McAndrews & Blessey, LLP Giovanneillo Law Group
9 1230 Rosecrans Ave, Suite 450 One Point Drive, Suite 300
Manhattan Beach, CA 90266 Brea, CA 92821
10 gwerre@rmblawyer.com kab@giolawgroup.com
11

13
__X__ (By Hand Delivery) I caused such envelope or documents to be delivered by hand personally, or by an
14 authorized courier or messenger service, to the office of the addressee the same day.

17
I declare under penalty of perjury under the laws of the State of California that the above is true
18 and correct. Executed this 20TH day of January 2021 at Montebello, California.

21 __________________________________
22 Joselyn Gutierrez
23

2
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Case Info

Judge

Georgina T. Rizk Track Judge’s New Case

Case No.

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Document Filed Date

January 20, 2021

Case Filing Date

June 18, 2018

County

Parties

CASTRO GRACIELA Plaintiff
CASTRO JUAN Plaintiff
MICHAEL SAMUEL M.D. INC. Defendant
MOJARRO JACOB ISAAC ESQ. Attorneys for Plaintiffs
PELTEKCI HELEN ESQ. Attorneys for Defendants
RETINA INSTITUTE OF CALIFORNIA Defendant
RETINA INSTITUTE OF CALIFORNIA MEDICAL GROUP DOE 5 Defendant
SAN GABRIEL AMBULATORY SURGERY CENTER L. Defendant
SUK KEVIN M.D. Defendant
TOM S. CHANG M.D. INC. Defendant
WERRE GREGORY DALE ESQ. Attorneys for Defendants
Alexander Giovanniello Attorneys for Defendants
Karen Bocker Attorneys for Defendants
Alexandra Muehl Attorney
Alexandra Maurer Attorney
Gregory Dale Attorney
Erik Bressler Attorneys for Defendants

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Motion,Ex Parte: JUAN CASTRO ET AL VS KEVIN SUK M D ET AL

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