Objections Evidence Declarations in Opposition to Motion to Strike

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ARI LAW, P.C. Ali A. Aalaei, State Bar No. 254713 Bo Zeng, State Bar No. 281626 22 Battery Street, Suite #1000 San Francisco, CA 94111 Telephone: 415-357-3600 Fax: 415-357-3604

Attorneys for Plaintiff, Dr. Randal Pham

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

UNLIMITED JURISDICTION

RANDAL PHAM, an individual,

Plaintiff,

vs.

JENNY LEE, an individual; AL YIN LEE, an individual; and DOES 1-10 inclusive.

Defendants.

) ) CASE NO. 1-12-CV-228332 ) ) PLAINTIFF'S OBJECTIONS TO ) DEFENDANTS'EVIDENCE ) ) Date: December 13,2012 ) Time: 9:00 a.m. ) Dept.: 8 ) Judge: Han. Peter Kirwan ) ) ) )

Case No. 1-12-CV-228332: Plaintiffs Objections to Defendants' Evidence

Pursuant to Cal. Rules of Court 3.1354, Plaintiff Dr. Randal Pham submits the following

2 Objections to Evidence in support of its Opposition to Defendants' Special Motion to Strike and Motion

3 for Judgment on the Pleadings. Defendants' declarations are inadmissible due to hearsay, speculation,

4 contradictions, relevance, unreliability, and lack of personal knowledge. See Gilbert v. Sykes (2007)

5 147 Cal. App. 4th 13; 26 ("[D]eclarations that Jack foundation or personal knowledge, or that are

6 argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.").

7 In fact, defendants' declarations do not even make a statement that they each have personal knowledge

8 regarding the facts in the declaration.

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10 I. GROUNDS FOR PLAINTIFF'S OBJECTIONS

11 Plaintiff objects on the following grounds:

12 • Hearsay (Cal. Ev. Code§ 1200)

13 • Lack of Personal Knowledge (Cal. Ev. Code§ 702)

14 • Irrelevant (Cal. Ev. Code§ 210 and §350-351)

15 • Opinion, Conclusion, Speculation (Cal. Ev. Code § 800 and § 803)

16 • Confusing, Prejudicial, or otherwise Unreliable (Cal. Ev. Code §352)

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OBJECTIONS TO EVIDENCE

Materials Objected To

Dec!. of Daniel Watts,~ 7, Exhibits D, F, G, H, I, L, M, N, P, Q, R, SandT. All of these exhibits relate to Plaintiffs alleged attendance at seminars, positions within an organization, advertisements, endorsements. and other work-related activities.

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Grounds for Objection

Hearsay (Cal. Ev. Code§ 1200). All of these exhibits are based on a Google search (see Dec!. of D. Watts,~ 3), and based on unauthenticated and unreliable evidence. The exhibits are hearsay, and it is unclear who wrote, designed, or created the website containing the exhibit. Some of the website pages are undated and may have been created many years ago without update. The Google search of"Randal Pham" and may not be reliable because they are all Internet searches and Randal Pham may be a popular name.


The court should not consider evidence that is unreliable. See Kulshrestha v. First Union

2 Commercial Corp. Internet evidence must be properly authenticated. See C.R. v. Tenet

3 Healthcare Corp. (2009) I 69 Cal. App. 4th I 094, I I 0 I ("[T]he trial court denied

4 plaintiffs judicial notice request on the ground the Web site documents were not authenticated"); Knapp v. Doherty (2004)

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6 I 23 Cal. App. 4th 76, I 02 ("[T]he Internet information was clearly objectionable

7 hearsay."). Internet webpages may change over time, and Daniel Watts provides Internet links on his declaration without describing 8

9 when he accessed those links or what versions he is referring to.

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Irrelevant (Cal. Ev. Code§ 2IO and §350-351). Plaintiffs general professional

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12 activities as a doctor are not relevant, especially when some of them occurred many

13 years ago. For example, simply being allegedly listed as a director of a company is unrelated to defamation or his status as a 14

15 public figure. In addition, giving a single talk or lecture is not relevant to being a public

16 figure. Advertising·of one's business is not relevant to one's status as a public figure. See Vegod Corp. v. Am. Broad. Cos. (I979) 25 17

18 Cal. 3d 763, 769; Carver v Bonds (2005) 135 Cal. App. 4th 328, 353.

19 2. Dec!. of Daniel Watts, 'II 7, Exhibits E, J, Irrelevant (Cal. Ev. Code§ 210 and §350-K, and 0. All of these exhibits allegedly 351). Plaintiffs publications are not relevant. relate to Plaintiffs publications. Two of these publications are articles written 20

21 in 2002. Furthermore, these publications appear to be of a very specific field and

22 published in scientific journals and have nothing to do with the issues in this case.

3. Decl. of Daniel Watts, 'lf7(d)-(e), Exhibit Violation of Cal Rules of Court, Rule 23

24 E and F. 3. I I I O(g). These exhibits are in a foreign language. Exhibit F is almost entirely foreign

25 and Exhibit E contains parts in a foreign language. Cal Rules of Court, Rule 3.11 IO(g) provides that "[e]xhibits written in a foreign 26

27 language must be accompanied by an English translation, certified under oath by a

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qualified interpreter." Defendants did not provide a translation. As such, the exhibits at

2 issue are confusing as well as unreliable and should be excluded under Cal. Ev. Code§

3 352.

4. Dec!. of Daniel Watts,~ 4. Lack of Personal Knowledge (Cal. Ev. Code§ 4 "Plaintiff has posted a video of himself 702). Defendants' counsel Watts lacks

talking about his business, along with personal knowledge as to who posted the other information promoting his business video or information and merely speculates

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6 on that page." that plaintiff did. Any user can create a Yelp page and add content to the page.

7 5. Dec!. of Daniel Watts,~ 7(a)-7(t): Lack of Personal Knowledge (Cal. Ev. Code§ 702). Defendants' counsel Watts lacks

The entire paragraph is not reproduced personal knowledge as to Pham's activities. 8

9 due to length. Paragraph 7(a)-7(t) includes, for example: Opinion, Conclusion, Speculation (Cal. Ev.

10 Code § 800 and § 803 ). Watts speculates "Randall Pham endorses Karyn Sinunu." based on the referenced exhibits and greatly !d. at 7(a). mischaracterizes them. For example, Watts

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12 alleges that Plaintiff publishes a blog, but the "Pham publishes a public blog." Id. at link is a review website and does not indicate

13 7(d). who wrote the blog posts or even who created the review page. Watts alleges that Pham

"Pham owns and operates Vietnamese owns and operates a web radio company, but 14

15 Web Radio, Inc., a for-profit Texas media the exhibit referenced only allegedly lists that corporation" Id. at 7(f). Plaintiff is a director, without any indication

16 of whether he is also the owner or operator "Pham has published multiple video and without any indication of when this advertisements" Id. at 7(m). occurred. Watts asserts that Plaintiff is a talk

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18 show host, but the exhibit referenced is a "Pham is a talk show host." Id. at 7(q). profile page of a forum user that merely states

19 "Host/MC with Dr Randall Pham."

20 Irrelevant (Cal. Ev. Code§ 210 and §350-

21 351). Finally, Plaintiff's attendance at seminars, positions held within an

22 organization, endorsements, and advertisements are not relevant to the matter.

23 6. Dec!. of Daniel Watts,~ 7(u)-7(w). These Irrelevant (Cal. Ev. Code§ 210 and §350-

24 three sub-paragraphs deal with three cases 351). Whether Plaintiff has been sued for in which Plaintiff was allegedly sued for medical malpractice is not relevant because

25 medical mal-practice. those are private matters allegedly regarding Plaintiffs examining abilities with other patients. Furthermore, two of the cases 26

27 occurred in 2000 and 200 I, over ten years ago and are not relevant.

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Case No. 1-12-CV-228332: Plaintiff's Objections to Defendants' Evidence

7. Dec!. of Daniel Watts, 'lf7(x). Lack of Personal Knowledge (Cal. Ev. Code§ "Defendants request the court take judicial 702). Opinion, Conclusion, Speculation (Cal.

2 notice that Ph am promotes himself by Ev. Code § 800 and§ 803). Watts lacks publishing online videos and has been personal knowledge regarding if or how Pham

3 recognized by media throughout the Bay "promotes himself' or whether he has Area and the nation: "lectured extensively." Daniel Watt's other

4 http://www.yelp.com/biz/randal-pham- comments relating to being "recognized" are md-facs-san-jose speculation. http://doctorbase.com/blog/rpham2/article

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6 /8668 Dr. Pham claims to have lectured Irrelevant (Cal. Ev. Code § 210 and §350-extensively both in the US and abroad. He 351). Whether Plaintiff"claims to" have

7 claims to have received numerous national received awards is not relevant. The two and international awards." links are to review websites, and also not

relevant with regard to the statements made 8

9 by Daniel Watts in this paragraph. 8. Dec!. of Daniel Watts, 1[8. Irrelevant (Cal. Ev. Code§ 210 and §350-

10 "Defendants request the court take judicial 35 I). The number of Yelp users is not notice that Yelp claims an average relevant and potentially misleading since none of 78 million monthly unique visitors to or very few of them may be viewing

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12 the Y elp.com site and that 'Every Plaintiff's information. Furthermore, whether business owner (or manager) can setup a a business owner "can" setup a free account is

13 free account to post photos and not relevant and misleading because anyone message her [sic] customers."' or any user can setup a Yelp account for the

business. 14

15 9. Dec!. of Alvin Lee, 'If 3: Lack of Personal Knowledge (Cal. Ev. Code§ "Instead, my grandmother has never been 702). Opinion, Conclusion, Speculation (Cal.

16 finished with an appointment with Pham Ev. Code § 800 and § 803). The declaration in less than two hours. Pham sometimes does not state or set forth how Alvin Lee has even takes two and a half hours to personal knowledge regarding the length of

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18 complete an 'hour-long' appointment. the appointment when he is not the patient When Pham takes two hours to finish a and merely "drops off' his grandmother. The

19 one-hour appointment, he sometimes grandmother could have finished early and makes my grandmother wait in the waited in the waiting room before she was waiting room for up to 70 minutes after picked up some time later.

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21 her appointment time." 10. Dec!. of Alvin Lee, 'lf6: Opinion, Conclusion, Speculation (Cal. Ev.

22 "There are almost never any empty seats Code§ 800 and§ 803). in there because the waiting room is so Alvin Lee speculates that Pham overbooked crowded. It is always packed, and I have merely because people were sitting in the

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24 seen on several different occasions people waiting room. Alvin Lee is also speculating in the waiting room waiting for a long that the people he saw are waiting to see

25 time to see Pham because Pham has Plaintiff, when they could be waiting for overbooked his appointments." relatives or sitting there waiting for dilation

drops to take effect. 26

27 Lack of Personal Knowledge (Cal. Ev. Code§

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Dec!. of Alvin Lee,~ 7: "When Pham charged my father $199 for supposedly 'prescription'

I " eyeg asses ....

Dec!. ofAlvin Lee,~ 7: "! conducted a search using Google and discovered that the eyeglasses were sold without a prescription by many retailers, such as Walmart. I found an identical pair of these dr(\gstore eyeglasses."

Dec!. of Alvin Lee, ~ 8: "My father has told me that he heard other patients complaining about Pham charging prescription prices for nonprescription eyeglasses."

Dec!. of Jenny Lee, ~ 5, Exhibit A-1 (pg. 4). ..

15. Dec!. ofJenny Lee,~ 2: "Despite arriving on time, she has had to

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702). 'The declaration says that "Pham has overbooked," but does not state or set forth how Alvin Lee has personal knowledge regarding Plaintiffs patient schedules or medical practice, which accommodates walkin patients. See Dec!. of D. Watts,~ 4, Exhibit A (Yelp page for Plaintiff says "By Appointment Only: No") .. Lack of Personal Knowledge (Cal. Ev. Code§ 702). The declaration does not state or set forth how Alvin Lee has personal knowledge regarding what Plaintiff charged Young Lee for. This statement is speculation regarding what was charged. In actuality, the $199.00 charge is for both Plaintiffs services and the glasses. Opinion, Conclusion, Speculation (Cal. Ev. Code § 800 and § 803 ). The statement is conclusory in assuming that the "eyeglasses" were the same or otherwise "identical." Alvin Lee also speculates that Walmart sells that brand of eyeglasses.

Irrelevant(Cal. Ev. Code§ 210 and §350-351 ). This statement is also not reliable or relevant in comparing specially recommended glasses by an ophthalmologist following an eye exam to glasses found on the Internet. Hearsay {Cal. Ev. Code § 1200). This statement contains inadmissible hearsay regarding the statements of "other patients" and statements made by the "father."

The statement is also vague and ambiguous as to whar"other patients." Hearsay (Cal. Ev. Code § 1200). This exhibit appears to contain allegations written by Jenny Lee in a BBB complaint involving hearsay statements from Young Lee.

Lack of Personal Knowledge (Cal. Ev. Code§ 702). Jenny Lee does not have personal knowledge of the allegations regarding Young Lee and Plaintiff described in this exhibit. Lack of Personal Knowledge (Cal. Ev. Code§ 702). The declaration does not state or set


wait for at least 45 minutes after her forth how Jenny Lee has personal knowledge appointment time each time. Sometimes regarding the length of the appointment when

2 she has to wait even longer. The time she she merely "drops off' her grandmother. In actually spends meeting with Pham is fact, Jenny Lee specifically admits that this is

3 usually no longer than 30 minutes." all a beliefbased on what Young Lee and Chinh Thi Truong have told her. Dec!. of J.

4 Lee, '1[6 ("Because of my father's and

5 grandmother's experiences with Pham, I believed (and still believe) ... ").

6 The statement is also vague and ambiguous as

7 to exactly which visits are in dispute and the

8 dates of those visits.

16. Dec!. of Jenny Lee, '1[2: Hearsay (Cal. Ev. Code § 1200). This 9 "My grandma has explained to me that statement contains inadmissible hearsay

every patient she has met at Pham 's office regarding the statements of other "patients" 10 also has to wait this long for their and statements made by the "grandma."

II scheduled appointments."

Lack of Personal Knowledge (Cal. Ev. Code§ 12 702). The declaration does not state or set

forth how Jenny Lee has personal knowledge 13 regarding how long other patients had to wait.

14 This statement is vague and ambiguous as to "every patient." The grandmother (Chinh Thi

15 Truong) does not address this issue in her declaration.

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17 The statement is also vague and ambiguous as to exactly which visits are in dispute.

18 17. Dec!. of Jenny Lee, '1[3: Hearsay (Cal. Ev. Code§ 1200). This "While sitting in the waiting room, statement contains inadmissible hearsay

19 [Young Lee] has heard patients describing regarding statements made by other "patients"

20 their frustrations with Pham's wait times .. and by Young Lee. The other patients said that Pham

21 consistently overbooked his appointment Lack of Personal Knowledge (Cal. Ev. Code§ times. He also overheard a conversation 702). The declaration does not state or set

22 between a patient and her son about forth how Jenny Lee has personal knowledge

23 having charged her prescription prices for regarding the "other patients." over-the-counter eyeglasses."

24 The statement is also vague and ambiguous as to exactly which visits are in dispute.

15 18. Dec!. of Jenny Lee, '1[4: Lack of Personal Knowledge (Cal. Ev. Code§

26 "When Pham charged my father $199 for 702). The declaration does not state or set supposedly 'prescription' forth how Jenny Lee has personal knowledge eyeglasses .... " regarding what Plaintiff charged Young Lee 27

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Opinion, Conclusion, Speculation (Cal. Ev.

2 Code § 800 and§ 803). This statement is speculation regarding what the charge is for.

3 In fact, the $199.00 charge is for both Plaintiff's services and the glasses.

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Jenny Lee is not an ophthalmologist and there is no indication that she consulted with one

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6 regarding what are the differences between prescription and non-prescription glasses. In

7 fact, it may be unclear what prescription and non-prescription glasses look like to those not trained in the field. Jenny Lee merely

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9 assumed and speculated that Plaintiff allegedly sold glasses of a certain type based

10 on the look of the glasses. 19. Dec!. of Jenny Lee, '1[6: Opinion, Conclusion, Speculation (Cal. Ev.

"Because of my father's and Code § 800 and § 803). Jenny Lee's beliefs II

12 grandmother's experiences with Pham, I are speculation. She is not Plaintiff's patient believed (and still believe) that: (I) Pham and was not present during any of the

13 has fraudulently sold cheap over-the- examinations with Plaintiff. Jenny Lee is counter reading glasses to his patients as if speculating regarding Plaintiff's intent and the the glasses were high-value prescription extent of any alleged fraud based on hearsay.

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15 eyewear; (2) Pham intentionally overbooks his patients to get more money; Lack of Personal Knowledge (Cal. Ev. Code§

16 (3) Pham has done these acts on several 702). Jenny Lee lacks personal knowledge to occasions, indicating a systematic and formulate the beliefs described. Jenny Lee intentional pattern of ahuse; ( 4) Pham does not have personal knowledge over what

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18 commits these acts because he serves Plaintiff charged his patients for, what primarily elderly and Vietnamese- Plaintiff's patient schedules are, or how

19 speaking clientele who are susceptible to Plaintiff interacts with other patients. schemes like Pham' s because of their age and status as immigrants."

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21 20. Dec!. of Young Lee (entire declaration): The Court should not consider evidence that is unreliable. See Kulshrestha v. First Union

22 Commercial Corp., (2004) 33 Cal. 4th 601, 606-608 (describing how reliability is important in the fact-finding process). This 23

24 entire declaration is unreliable because, on information and belief, Young Lee's English

25 is limited and may not fluent in English. In fact, Jenny Lee herself makes this admission and suggests that a translator may be needed. 26

27 See Def. Mtn. to Strike, Dec!. of D. Watts, Exhibit A-1 ("[Young Lee's] English is

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8 Case No. 1-12-CV-228332: Plaintiff's Objections to Defendants' Evidence

limited ... Should I just translate it for him."). Young Lee states that he "heard

2 patients describing their frustrations ... other patients said that ... I have heard on at least

3 one occasion a patient and her son complaining." Dec!. of Young Lee,~ 10.

4 These statements are not only inadmissible hearsay, but also unreliable because of his limited English. The declarations do not

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6 address any interpretation issues nor how he understood the words written in the

7 declaration. Without an interpreter, the declarant may lack competency. See Brown v. Ransweiler (2009) 171 Cal. App. 4th 516,

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9 529 ("[C]ompetency must be shown in the supporting and opposing affidavits and

10 declarations."). 21. Dec!. of Young Lee,~ 7: Hearsay (Cal. Ev. Code§ 1200). This

"When I showed the glasses to friends and statement contains inadmissible hearsay II

12 family, they remarked that the glasses regarding statements made by "friends and were not prescription, but were instead family."

13 common drugstore glasses that normally cost less than $15 at Walgreens. My son, Lack of Personal Knowledge (Cal. Ev. Code§ Alvin Lee, did a google search for the 702). The declaration does not state or set

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15 glasses and found the exact pair for sale . forth how Young Lee has personal knowledge on Amazon for less than $16." regarding what Alvin Lee did.

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Opinion, Conclusion, Speculation (Cal. Ev. Code § 800 and § 803 ). The statement is also

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18 conclusory in using the term "exact pair." The remarks made by "friends and family"

19 are opinions and speculation regarding what Walgreens actually sells.

22. Dec!. of Young Lee, ~ I 0: Lack of Personal Knowledge (Cal. Ev. Code§ 20

21 "Pham is consistently late for our 702). This statement is vague and ambiguous appointments." as to who "our" refers to. The declaration

22 does not state or set forth how Young Lee has personal knowledge regarding other individuals' appointments. 23

24 23. Dec!. of Young Lee, ~ I 0: Hearsay (Cal. Ev. Code § 1200). This "The other patients said that Pham statement contains inadmissible hearsay

25 consistently overbooked his appointment regarding statements made by "other times. I have heard on at least one patients." occasion a patient and her son

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27 complaining about Pham charging them prescription prices for over-the counter

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9 Case No. 1-12-CV-228332: Plaintiffs Objections to Defendants' Evidence

eyeglasses." 24. Dec!. of Young Lee, "iJ I 0: Lack of Personal Knowledge (Cal. Ev. Code§

2 "Attached as Exhibit 2 are true and correct 702). Conclusion, Speculation (Cal. Ev. Code copies of my credit card statements § 800 and§ 803). The declaration does not

3 reflecting a charge of $199 for the over- state or set forth how Young Lee has personal the-counter eyeglasses, $50 for the knowledge regarding what Plaintiff c!.drged appointment with Pham, and a $199 Young Lee for. 4

refund for those eyeglasses." Opinion, Con-:' .:sion, Speculation (Cal. Ev.

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6 Codt> ~ 6u0 and § 803 ). This statement is . :.peculation regarding the charge. In actuality,

the $199.00 charge is for both Plaintiffs 7

services and the glasses. This statement mischaracterizes what Exhibit 2 shows.

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9 Exhibit 2 merely shows two charges from "Aesthetic & Refractive San Jose CA," one

10 for $199 and one for $50. As such, the statement is false with regards to what Young Lee's credit card statements actually show.

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12 25. Dec!. of Young Lee, '1!13: Opinion, Conclusion, Speculation (Cal. Ev. "Attached as Exhibit 3 is a true and Code § 800 and § 803). This statement is

13 correct copy of the Amazon.com listing conclusory (and false) in stating that the for over-the-counter 'Foster Grant' glasses are of the same model and type. reading glasses. The reading glasses Exhibit I and 3 of Young Lee's own

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15 listed on this advertisement for less than declaration show that this statement is false. . $1 0 are the same model and type as the Exhibit I shows that the glasses are labeled

16 pair that Pham sold to me for $199." "Richard HG 1010000" (the picture is a bit blurry). See Dec!. of Young Lee, "jJII, Exhibit I. On the other hand, Exhibit 3 shows

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18 glasses of a completely different brand called "Foster Grant" with size 1.75 and model

19 number R116A. See Dec!. of Young Lee, "iJ 13, Exhibit 3. As such, the statement at issue is confusing as well as unreliable and should

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21 be excluded under Cal. Ev. Code§ 352. 26. Dec!. of Chinh Thi Truong (entire This entire declaration is unreliable because,

22 declaration): on information and belief, Chinh Thi Truong is not fluent in English. The declarations do not address any interpretation issues nor how

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24 she understood the words written in the declaration. Without an interpreter, the

25 declarant may lack competency. See Brown v. Ransweiler(2009) 171 Cal. App. 4th 516, 529 ("[C]ompetency must be shown in the 26

27 supporting and opposing affidavits and declarations.").

28 JO

Case No. l-12-CV-228332: Plaintiffs Objections to Defendants' Evidence

2 III. CONCLUSION

3 For the reasons set forth above, plaintiff Randal Pham requests that the Court sustain the

4 foregoing objections.

Respectfully submi !ted,

By: A~ Ari Law, P.C. Attorney for Plaintiff Randal Pham

II Case No. 1-12-CV-228332: Plaintiffs Objections to Defendants' Evidence

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ARI LAW, P.C. Ali A. Aalaei, State Bar No. 254713 Bo Zeng, State Bar No. 281626 22 Battery Street, Suite # 1000 San Francisco, CA 94111 Telephone: 415-357-3600 Fax: 415-357-3602

Attorneys for Plaintiff Randal Pham.





Plaintiff,

vs.

JENNY LEE, an individual; ALVIN LEE, an individual; and DOES I -I 0 inclusive.

Defendants.

) ) Case No. 1- I 2-CV -228332 ) ) DECLARATION OF RANDAL PHAM, ) M.D., IN SUPPORT OF OPPOSITION TO ) SPECIAL MOTION TO STRIKE ) ) Date: December 13, 2012 ) Time: 9:00 a.m. ) Dept.: 8 ) Judge: Hon. Peter Kirwan ) ) )

Case No. 1-12-CV-228332: Declaration of Randal Pham, M.D.

I, Randal Pham, declare as follows:

2 I. I am the plaintiff in this case. I am a board certified ophthalmologist and surgeon

3 practicing in San Jose with over eighteen years of expe!'ience.

4 2. I have examined the business records relating to my medical practice and I have personal

5 knowledge of all facts staled in this declaration, unless stated upon information and belief, and if called

6 to testifY, l could and would testify competently thereto.

7 3. l do not oYerbook my patients every single day. I did not overbook my patients

8 scheduled for March 27,2012.

9 4. Young Lee was one of my patients. Young Lee made an appointment with my medical

to practice for March 27,2012, at 2:30pm.

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12 3:44pm.

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6.

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OJ). March 27,2012, Young Lee arrived for his scheduled appointment at approximately

I never told Young Lee that I would sell him eyeglasses alone for $200 ot' for $199.

My business charged $199 to Young Lee for eyeglasses and services rendered.

I do not have a criminal record and have never been arrested, convicted, or otherwise

16 involved in atty criminal activity.

17 9. My office accommodates walk-in patients and patients who are late for their

18 appointments.

19 I declare under penalty ofpe1jury under the Jaws of the state ofCalifomia that the foregoing is

20 true and correct.

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n Dated: II (3 o /I L

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By: Randal Pham

2 ?Q Case No. 1·12-CV -228332: Declaration of Randal Pham, M.D.

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ARI LAW, P.C. Ali A. Aalaei, State Bar No. 2~47I3 Bo Zeng, State Bar No. 28I626 22 Battery Street. Suite # 1000 San Francisco, CA 94111 Telephone: 415-357-3600 Fax: 415-357-3602

Attorneys for Plaimirf'Randal Pham




RANDAL PHAM. an individual.

Plaintiff

vs.

JENNY LEE. an individual. AL YIN LEE. an individual. DOES I- I 0 inclusive.

Defendants.

) ) Case No. I -12-CV -228332 ) ) DECLARATION OF DAVID W. PARKE II, ) M.D., IN SUPPORT OF OPPOSITION TO ) SPECIAL MOTION TO STRIKE ) ) Date: December 13,2012 ) Time: 9:00a.m. ) Dept.: 8 ) Judge: Hon. Peter Kirwan ) ) )

) )

Case No. 1-12-CV-228332: Declaration of David W. Parke II. M.D.

I, David W. Parke II, M.D., the undersigned declare:

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3 I. I am the Executive Vice President and CEO of the Academy, the world's largest ophthalmology

4 organization, with 30,000 members and offices in San Francisco and Washington, D.C. The Academy i

5 the principal source of educational materials and programs for ophthalmologists as well as the

6 profession's voice from Washington to the World Health Organization.

7 2. Prior to assuming this role in 2009, I served for 17 years as president and CEO of the Dean

8 McGee Eye Institute and Edward L. Gaylord professor and chair of the department of ophthalmology in

9 the University of Oklahoma College of Medicine. At the time I left, the McGee Eye Institute had more

1 o than 300 faculty and staff and ranked among the top institutions nationally in terms of NIH vision

11 research grant support.

12 3. A practicing ophthalmologist with subspecialty focus in retina/vitreous, I served as president of

13 the Academy in 2008. I am a fellow of the Academy and received its Honor Award in 1989, its Senior

14 Achievement Award in 1998 and its LifeAchievement Honor Award in 2009.

15 4. A graduate of Phillips Exeter Academy, Stanford University .and an AOA graduate of the Baylor

16 College of Medicine, I completed residency training at Baylor College of Medicine, serving as chief

17 resident. I then completed two years of fellowship training in diseases and surgery of the retina and

18 vitreous. My professional and scholarly activities have focused on that subspecialty and on medical

19 education and biomedical organiz~tionalleadership and development.

20 5. I have held leadership positions on multiple professional boards. I am a founding member of

21 MedEncentive, a company integrating evidence-based medicine into an innovative incentive system

22 while decreasing total system costs. I also serve on the board of directors of the Ophthalmic Mutual

23 Insurance Company and previously chaired the board of.directors of the Academic Physicians Insurance

24 Company and ofMedem, Inc., a San Francisco-based Internet health care company. My other past

25 medical leadership positions have included serving as president of the Association of University

26 Professors of Ophthalmology and director of the American Board of Ophthalmology.

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28 2 DECLARATION OF DAVID W. PARKE II, M.D.

6. I have served on the editorial board of two ophthalmic journals and was executive editor of the

2 American Journal of Ophthalmology. I have received numerous biomedical research grants and was

3 awarded the Dean's Award for Distinguished Medical Service at the University of Oklahoma. I have

4 lectured widely on topics in retinal diseases and surgery, academic professional development, medical

5 liability insurance and medical organizational leadership and management. I am recognized in Who's

6 Who in America, Who's Who in the World and Best Doctors in America. In 2009, I was elected to

7 Academia Ophthalmologica Internationalis, an international body limited to 60 active members

8 committed to global vision research, education and service.

9 7. Based on my years of experience as a practicing ophthalmologist, my years as an ophthalmic

10 educator and head of one of the nation's largest eye hospitals, my experience in credentialing of

11 ophthalmologists, my editorial duties, research and publications for academic, peer-reviewed journals of

12 ophthalmology, and my leadership as President and now CEO of the American Academy of

13 Ophthalmology, I can state that unequivocally that refraction, that is the determining the refractive

14 condition of the eye, by measuring its ability to refract light that enters it so as to form an image on the

15 retina, is within the scope and practice of ophthalmology. All medical graduates who pursue the

16 specialty of ophthalmology through a residency program, study refraction to learn how to correct vision

17 through lenses. Ophthalmologists are trained to perform refraction and to prescribe and dispense glasses

18 or contact lenses, and these services are within their scope of practice.

19

20 I declare under penalty of perjury under the laws of the State of California that the foregoing is


22

23 Executed on October 24, 2012, in San Francisco, California.

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25 By:

26 David W. Parke II, M.D.

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28 3

DECLARATION OF DAVID W. PARKE II, M.D.

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ARI LAW, P.C. Ali A. Aalaei, State Bar No. 254 713 Bo Zeng, State Bar No. 281626 22 Battery Street, Suite # 1000 San Francisco, CA 94111 Telephone: 415-357-3600 Fax: 415-357-3602

Attorneys for Plaintiff Dr. Randal Pham



UNLIMITED JURJSDICTION


Plaintiff,

vs.


Defendants.

) ) Case No. 1-12-CV-228332 ) ) DECLARATION OF DEBRA PHAIRAS IN ) SUPPORT OF OPPOSITION TO SPECIAL ) MOTION TO STRIKE ) ) Date: December 13,2012 ) Time: 9:00 a.m. ) Dept.: 8 ) Judge: Han. Peter Kirwan ) ) )

Case No. 1-12-CV-228332: Declaration of Debra Phairas

I, Debra Phairas, declare as follows:

2 I. I have personal knowledge of all facts stated in this declaration, unless stated upon

3 information and belief, and if called to testify, I could and would testify competently thereto. I am not a

4 party to this litigation and have no interest in the outcome of this litigation.

5 2. I am the president of Practice & Liability Consultants, LLC, a medical practice

6 management consulting firm based in San Francisco, CA. The firm has worked with over 1,600

7 medical practices since 1985, the majority of which are practices comprised often or fewer physicians.

8 The firm has consulted and advised physicians on all aspects of medical practices, including but not

9 limited to financial, operations, productivity, scheduling, personnel, practice valuations, mergers, and

1 o other aspects of practice management.

II 3. I am a nationally recognized physician practice management expert. I have presented

12 numerous seminars and workshops on the subject. I have been qualified and served as an expert

13 witness for both plaintiffs and defendants with regards to medical practices for physicians and hospitals.

14 I am also a credentialed consultant with the American Academy of Ophthalmologists, the professional

15 association of ophthalmologists.

16 4. On or around October 6, 2012, I personally inspected plaintiff Dr. Randal Pham's

17 medical practice, including but not limited to his patient schedules. I also inspected twenty-four (24)

18 patient day schedules over the last few years with different days of the week. I signed a confidential

19 HIP AA compliant agreement to protect patient confidentiality.

20 5. I compared plaintiff Dr. Pham's medical practice to the most respected sources of

21 physician data relating to medical practices in the United States. The comparison data is collected from

22 the Medical Group Management Association, the National Society of Certified Healthcare Business

23 Consultants, America Medical Group Association, Practice Support Resources, Inc., Western Region

24 (PSR), arid.Medscape. The comparison data is utilized by physician practices, hospitals, foundations,

25 and consultants to compare physician productivity to norms.

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?Q

6. Dr. Pham's practice accommodates walk-in patients, and walk-in patients occur more

often with the Asian population in the San Jose area due to various transportation issues and language

2

Declaration of Debra Phairas Case No. 1-12-CV-228332

barriers. Dr. Pham does not charge for patient no-shows or cancellations, whereas the majority of

2 physicians do so.

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4

7.

8.

Ophthalmologists, unlike some other fields of medicine, have high patient volumes.

Dr. Pham works six ( 6) days a week or an average offorty-eight ( 48) hours per week

5 including surgery. This is more hours per week than the average ophthalmologist would work and

6 places Dr. Pham in the high mean to 75% ofMedscape data for hours worked per week.

7 9. Dr. Pham starts most patient appointment days at 8:15a.m. and typically ends the

8 appointments at 5:30p.m. Most ophthalmologists will start their appointments at 9:00a.m. and end

9 their appointments at 4:45 p.m. Dr. Pham works more hours and more days per week than the average

10 ophthalmologist.

II 10. I inspected twenty-four day schedules of patients from 2005-2012, with the heaviest

12 concentration of schedules from 2011. On average, Dr. Pham saw 159.42 patients per week, which is at

13 the 90% level of production for ophthalmologists, according to the Medscape data of ophthalmologists

14 used in my calculation, which is usual and customary for ophthalmologists and especially for

15 ophthalmologists who work longer hours. Dr. Pham spent an average of9.98 minutes per patient,

16 which is within the norm, according to my findings. On some days, Dr. Pham will spend an average of

17 23 - 28 minutes per patient.

18 11. Dr. Pharo's medical practice follows and is within published norms for visits per week

19 and the amount of time spent per patient. I can conclude unequivocally that Dr. Pham has not

20 overbooked patients in a way that deviates from the norm of the industry and that his medical practice

21 follows the accepted norms within the industry. Additionally, I can conclude, based on Dr. Pham's

22 patient schedules, that Dr. Pham has not overbooked his patients every single day.

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24 I declare under penalty of perjury under the laws of the state of California that the foregoing is


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27 Dated: f I I f)_i r:.,£-2 -28

?Q

By:

3

Declaration of Debra Phairas Case No. 1-12-CV-228332

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ARILAW,P.C. Ali A. Aalaei, State Bar No. 254 713 Bo Zeng, State Bar No. 281626 22 Battery Street, Suite # 1000 San Francisco, CA 94111 Telephone: 415-357-3600 Fax: 415-357-3602

Attorneys for Plaintiff," Dr. Randal Pham





Plaintiff,

vs.

JENNY LEE, an individual; ALVIN LEE, an individual; and DOES 1-10 inclusive.

Defendants.

) ) CASE NO. 1-12-CV-228332 ) ) DECLARATION OF BO ZENG IN ) SUPPORT OF OPPOSITION TO MOTION ) TOSTRIKE ) ) Date: December 13,2012 ) Time: 9:00 a.m. ) Dept.: 8 ) Judge: Hon. Peter Kirwan ) ) ) )

Case No. 1-12-CV-228332: Declaration ofBo Zeng

I, Bo Zeng, declare as follows:

2 I. I am a member in good standing with the State Bar of California and I am employed as a

3 attorney with Ari Law, P.C., located at 22 Battery Street, Suite #1000, San Francisco, CA 941 I I. My

4 law office has been retained as counsel for plaintiff Randal Pham.

5 2. I have personal knowledge of all facts stated in this declaration, unless stated upon

6 information and belief, and if called to testify, I could and would testify competently thereto.

7 3. Attached hereto as Exhibit I is a true and correct copy of the main front page of a Yelp

8 Review webpage for Randal Pham, MD, FACS on July 27,2012. I took the screenshot of this webpage

9 on July 27, 20 I 2 at I O:OOam by saving the web page in a portable document format (pdf).

10 4. Attached hereto as Exhibit 2 is a true and correct copy of an Insider Pages webpage for

1 1 Randal T. Pham, MD. I took the.screenshot of this webpage on November 29, 2012 at !2:28pm by

1 2 saving the webpage in a portable document format (pdf).

13 5. Attached hereto as Exhibit 3 is a true and correct copy of a Yelp Review webpage for

14 Randal Pham, MD, FACS showing the reviews that have been removed for violating Yelp's Content

15 Guidelines or Terms of Service. I took the screenshot of this webpage on November 29,2012 at

16 !2:26pm by saving the webpage in a portable document format (pdf).

17

18 I declare under penalty of perjury under the laws of the state of California that the foregoing is

1 9 true and correct.

20

21 Dated: By:

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2 Case No. 1-12-CV-228332: Declaration ofBo Zeng

I ~" yeP"""'

Randall"ham, MD, FACS 5 reviews

Category: Cosmetic Surgeons

455 O'Connor Dr

San Jose, CA95128

(408) 998-1818

http:fllasernews.com/

By Appointment Only; No

5 reviews for Randal Pham, MD, FACS

5 reviews In English

Tiffany K Cupertino, CA

Yelp Sponsor

I just love Dr. Pham. 1 know he loves his work, and cares about his patients I am veryhappywilh the excellent results t have always had with Dr. Pham. Nanette, the office manager is on top of everything, and very alert. Vinh is very good at his job, and good with people.! will definitely continue seeing Dr. Pham.

Alvin L Davis, CA

312912012

I've taken my gi'andmother here multiple times for her appointments and needless to say, this place frustrates me greatly. Theyoverbook every single day to maximize how inuch money they make In a day. They told me it shouldn't take more than an hour, but in the end I missed an appointment I had because I ended up waiting for 2.5 hours. This has happened on multiple occasions which I see as very unprofessional. The reason for setting an appointment is to make sure you don't waste tifne waitlng.Sure all of the patient are mostly senior citizens that don't mind waiting for hours because they can interact and socialize with the countless others who have been waiting, but what about the people who take them there and are forced to walt.

If you schedule an appointment for 4:30 and aren't seen until6, there is deflnitelysomethlng wrong with your scheduling system. I highly suggest that you fix that problem. A free clinic moves faster than this place.

Jenny V San Jose, CA

6/2612012

He's a crook. Stay away.

KinYTI)' N San Diego. CA

1 had an excellent experience with Dr. Pham. He made me feel comfortable. my procedures were well planned out, he was made available every time I needed him-- pretty much every step of the way he held my hand through, whether it was in hysteria or inquisition or fear. My sister however, went to him for the same procedures. VVith the full knowledge \hall had referred my own sister to him, he dropped the ball on her. He not only rushed through her procedure, he misinformed her in telling her that her procedure would be a one-time deal when in reality it became a three-time deal, it did not heal the way we wanted, and he has requested for a ONE YEAR EXTENSION to complete the work he was supposed to have been able to get done in ONE BRISK PROCEDURE. He gets 3 stars,

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MarcMZare,MD i.1'~::;J~-. 7 reviews

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" ... to make sure that I understood the surgery and recovery."

Uu Plastic Surgery IJDOQD 9 reviews San Jose, CA

TonyH Pham, MD aaaaa 2 reviews San Jose, CA

Michael J Choi, MD oaaao 1 review Santa Clara, CA

ll Dr. Craig Creasman l.wlUOflG:f 11 reviews "I had a breast augmentation with Dr."

-===-People VIewed This After Searching For ...

Cosmetic Surgeons San Jose

Laser Resurfacing san Jose

Cosmetic Surgery San Jose

c!

because he drd a good job on me.

Rwong!an N Santa Clara. CA

81412010

I absolutely agree with 3 previous reviews; Dr. Pham is a wonderful cosmelic and laser surgeon. 1 had a laser resurfacing offull face in December 2009, and I found that I was in a good hand during his procedure. His skill performance was so excellencent that I had no any fear and felt very comfortable. The reason why until now I want to share my experience because I want to make sure I've got as a satisfied result as I'd e><pected. Dr. Pham offered me a very special fee for my surgery, so 1 didn't have a big debt after my cosmetic surgery and felt completely happy. Mer over six months, many of my friends and my relatives were surprised to see me much more different since my skin face now looks more smooth and less deep pores as I had before. They told me !hall now look more pretty and younger under the new skin face. Honestly, my skin face wi1f be perfect If I have some more money to go back to see Dr. Pham again to have laser resurfacing one more time. Afryway, I still confident to refer my friends and my relative to Or. Pham whenever I see they need his help. Also, his staffs are so wondertul; friendly, professional and helpful.

(2 Filtered)

About This Business Provided by business

Specialties Dr. Ph am is committed to helping each and every patient achieve their reconstruclive and ophthalmic plastic surgery goals. He is a leading ophthalmologist in San Jose, California (CA) and specializes in ophthalmic plastic and reconstructive surgery. He specializes in laser cataract surgery, laser eyelid surgery, skin surgery. facial skin enhancement. rhinoplasty, botox injections, acne scars, and lip lines removal.

Dr. Pham is the first ophthalmologist and oculofacial plastic surgeon to receive the Bast Clinical Science Award by the American Society for Laser Medicine and Surgery. V\1\lh more than 18 years of experience as an ophthalmologist in San Jose, CA. Dr. Pham has the experience and knowledge to treat a wide range of issues.

Meet the Business Owner: Randal P. Dr. Randal Pham Is the first surgeon of Vietnamese origin inducted into the prestigious American Society of Ophthalmic Plastic and Reconstructive Surgery. He is certified by the American Board of Ophthalmology. He is the first ophthalmologist and oculofacial plastic surgeon to receive the Best Clinical Science Award by the American Society for Laser Medicine and Surgery.

Dr. Randal Pham graduated Phi Beta Kappa from UC Berkeley in Biochemistry. He_obtalned his M.D. degree with excellent citation from UCSF. He Is the first Vietnamese American appointed to the faculty of the Department of Ophthalmology of the School of Medicine at Stanford University.

He finished his resldencytralnlng in ophthalmology at r.Jietrohealth St Luke!Case Western Reserve University In Cleveland and completed a fellowship In ophthalmic and facial plastic surgeries at Cimarron Eye Center In Oklahoma City. Dr. Pham holds membership in many prestigious professional associations and societies.

Flag as inappropriate

Best of Yelp: San Jose· Cosmetic Surgeons Saef./Jore

Sa·-~ .. cse. C.t,. > Jcc:c ·::: > C::-:1·; ·ta TC"CIJ·S·:s >Randal T. Pharn. MD

Randal T. Pham, MD 408-998-8109

45::'· O>eonnr.>r Dril•e S<m Jr.;~ e. CA 9:'-1 :.:8

~cmdol- ;:,hew··~ .v.) :opec.iCllize~- in Ophthalr·toi09':' ortd ho~. 2L yems of experience. i.J Ltke ~ De the first of VOlt:· fnend!; to like lht,;:.

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6 Reviews Removed for VIolating our Content Guidelines or Terms of Service

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ARI LAW, P.C. Ali A. Aalaei, State Bar No. 254713 Bo Zeng, State Bar No. 281626 . 22 Battery Street, Suite # 1000 San Francisco, CA 94111 Telephone: 415-357-3600 Fax: 415-357-3602

Attorneys for Plaint!{{, Dr. Randal Pham





Plaintiff,

vs.


Defendants.

) ) CASE NO. 1-12-CV-228332 ) ) [PROPOSED) ORDER DENYING ) DEFENDANTS' SPECIAL MOTION TO ) STRIKE AND MOTION FOR JUDGMENT ) ON THE PLEADINGS ) ) Date: December 13, 2012 ) Time: 9:00 a.m. ) Dept.: 8 ) Judge: Hon. Peter Kirwan ) ) )

Case No. 1-12-CV-228332: [Proposed] Order Denying Defendants' Mot. to Strike and Mot. For Judgment on the Pleadings

Defendants Jenny Lee and Alvin Lee's special motion to strike and motion for judgment on the

2 pleadings came on regularly for hearing on December 13, 2012 at 9:00a.m. in Department 8 of the

3 above-entitled court. Ali Aalaei, of Ari Law, P.C., appeared on behalf of plaintiff Randal Pham. Daniel

4 Watts appeared on behalf of defendants Jenny Lee and Alvin Lee.

5 The Court, having considered the declarations and other documents in support of and in

6 opposition of the motion, having heard the arguments of counsel, and being advised in the matter, it

7 appears to the satisfaction of this Comi that there is good cause, and that this is a proper case, for the

8 following order:

9 DENIED. Defendants Jenny Lee and Alvin Lee's special motion to strike and motion for

1 o judgment on the pleadings is denied.

II

12 Dated:

13 Judge of the Superior Court

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2 Case No. 1-12-CV-228332: [Proposed] Order Denying Defendants' Mot. to Strike and Mot. For Judgment on the Pleadings

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ARI LAW, P.C. Ali A. Aalaei, State Bar No. 254713 Bo Zeng, State Bar No. 28 I 626 22 Battery Street, Suite #1000 San Francisco, CA 94I I I Telephone: 4I 5-357-3600 Fax: 415-357-3602

Attorneys for Plaintiff. Dr. Randal Pham




RANDAL PHAM, an individu&l,

Plaintiff,

vs.

JENNY LEE, an individual; ALVIN LEE, an individual; and DOES I- I 0 inclusive.

Defendants.

) ) CASE NO. I-12-CV-228332 ) ) [PROPOSED) ORDER SUSTAINING

. ) PLAINTIFF'S OBJECTIONS TO ) DEFENDANTS' EVIDENCE )

. ) Date: December 13,2012 ) Time: 9:00 a.m. ) Dept.: 8 ) Judge: Hon. Peter Kirwan ) ) ) )

Case No. 1-12-CV-228332: (Proposed] Order Sustaining Plaintiffs Objections to Defendants' Evidence

Defendants Jenny Lee a11d Alvin Lee's motion to strike and motion for judgment on the

2 pleadings came on regularly for hearing on December 13,2012 at 9:00a.m. in Department 8 of the

3 above-entitled court. Ali Aalaei, of Ari Law, P.C., appeared on behalf of plaintiff Randal Pham. Danie

4 Watts appeared on behalf of defendants Jenny Lee and Alvin Lee.

5 Plaintiff Randal Pham objected to the evidence presented by defendants Jenny Lee and Alvin

6 Lee.

7 The Court, having considered the declarations and other documents in support of and in

s opposition of the motion, having heard the arguments of counsel, and being advised in the matter, it

9 appears to the satisfaction of this Court that there is good cause, and that this is a proper case, for the

1 o following order:

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Materials Objected To

Dec!. of Daniel Watts, ~ 7, Exhibits D, F. G, H, I, L, M, N, P, Q, R, SandT. All of these exhibits relate to Plaintiff's alleged attendance at seminars, positions within an organization, advertisements, endorsements, and other workrelated activities.

Grounds for Objection

Hearsay (Cal. Ev. Code § 1200). All of these exhibits are based on a Google search (see Decl. of D. Watts, ~ 3 ), and based on unauthenticated and unreliable evidence. The exhibits are hearsay, and it is unclear who wrote, designed, or created the website containing the exhibit. Some of the website pages are undated and may have been created many years ago without update. The Google search of

. "Randal Pham" and may not be reliable because they are all· Internet searches and Randal Pham may be a popular name. The court should not consider evidence that is unreliable.

· See Kulshrestha v. First Union Commercial Com. Internet evidence must be properly authenticated. See C.R. v. Tenet Healthcare Com. (2009) 169 Cal. App. 4th 1094, 1101 ("[T]he trial court denied plaintiffs judicial notice request on the ground the Web site documents were not authenticated"); Knapp v. Doherty

2

Ruling

Sustained:

Overruled:

Case No. 1-12-CV-228332: [Proposed] Order Sustaining Plaintiffs Objections to Defendants' Evidence

(2004) 123 Cal. App. 4th 76, 102 ("[T]he Internet information was

2 clearly objectionable hearsay."). Internet webpages may change over

3 time, and Daniel Watts provides Internet links on his declaration

4 without describing when he accessed those links or what versions he is referring to.

5

6 Irrelevant (Cal. Ev. Code§ 210 and

7 §350-351). Plaintiff's general professional activities as a doctor are not relevant, especially when some of I

8

9 them occurred many years ago. For example, simply being allegedly listed

10 as a director of a company is unrelated to defamation or his status as a public figure. In addition, giving a single

II

12 talk or lecture is not relevant to being a public figure. Advertising of one's

13 business is not relevant to one's status as a public figure. See Vegod Corp. v. Am. Broad. Cos. (1979) 25 Cal. 3d

14

15 763, 769; Carver v Bonds (2005) 135 Cal. App. 4th 328, 353.

16 2. Dec!. of Daniel Watts, '1!7, Irrelevant (Cal. Ev. Code§ 210 and Sustained: --Exhibits E, J, K, and 0. All of §350-351). Plaintiff's publications are these exhibits allegedly relate to not relevant. Two of these Overruled: --

17

18 Plaintiff's publications. publications are articles written in 2002. Furthermore, these publications

19 appear to be of a very specific field and published in scientific journals and have nothing to do with the issues :w

21 in this case. 3. Dec!. of Daniel Watts, '1!7( d)- Violation of Cal Rules of Court, Rule Sustained: --

22 (e), Exhibit E and F. 3.1110(g). These exhibits are in a foreign language. Exhibit F is almost Overruled: --entirely foreign and Exhibit E contains 23

24 parts in a foreign language. Cal Rules of Court, Rule 3 .Ill O(g) provides that

25 "[ e ]xhibits written in a foreign language must be accompanied by an English translation, certified under 26

27 oath by a qualified interpreter." Defendants did not provide a

28

3

Case No. 1-12-CV -228332: [Proposed] Order Sustaining Plaintiffs Objections to Defendants' Evidence

translation. As such, the exhibits at issue are confusing as well as

2 unreliable and should be excluded under Cal. Ev. Code§ 352.

4. Dec!. of Daniel Watts,~ 4. Lack of Personal Knowledge (Cal. Ev. Sustained: ---3

"Plaintiff has posted a video of Code§ 702). Defendants' counsel himself talking about his Watts lacks personal knowledge as to Overruled: --

4

business, along with other who posted the video or information information promoting his and merely speculates that plaintiff

5

6 business on that page." did. Any user can create a Yelp page and add content to the page.

7 5. Dec!. of Daniel Watts,~ 7(a)- Lack of Personal Knowledge (Cal. Ev. Sustained: --7(t): Code§ 702). Defendants' counsel

Watts lacks personal knowledge as to Overruled: --8

9 The entire paragraph is not Pham's activities. reproduced due to length. Paragraph 7(a)-7(t) includes, for Opinion, Conclusion, Speculation 10

example: (CaL Ev. Code§ 800 and § 803). Watts speculates based on the

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12 "Randall Pham endorses Karyn referenced exhibits and greatly Sinunu." Id. at 7(a). mischaracterizes them. For example,

13 Watts alleges that Plaintiff publishes a "Pham publishes a public blog." blog, but the link is a review website Id. at 7(d). and does not indicate who wrote the

14

15 blog posts or even who created the "Pham owns and operates review page._ Watts alleges that Pham

16 Vietnamese Web Radio, Inc., a owns and operates a web radio for-profit Texas media company, but the exhibit referenced corporation" ld. at 7(f). only allegedly lists that Plaintiff is a

17

18 director, without any indication of "Pham has published multiple whether he is also the owner or

19 video advertisements" Id. at operator and without any indication of 7(m). when this occurred. Watts asserts that

Plaintiff is a talk show host, but the 20

21 "Pham is a talk show host." I d. exhibit referenced is a profile page of at 7(q). a forum user that merely states

22 "Host/MC with Dr Randall Pham."

23 Irrelevant (Cal. Ev. Code § 210 and

24 §350-351). Finally, Plaintiff's attendance at seminars, positions held

25 within an organization, endorsements, and advertisements are not relevant to the matter.

26

6. Dec!. of Daniel Watts,~ 7(u)- Irrelevant (Cal. Ev. Code§ 210 and Sustained: --27 7 ( w). These three sub- §350-351 ). Whether Plaintiff has

28 4


paragraphs deal with three cases been sued for medical malpractice is Overruled: --in which Plaintiff was allegedly not relevant because those are private

2 sued for medical mal-practice. matters allegedly regarding Plaintiffs examining abilities with other patients.

3 Furthermore, two ofthe cases occurred in 2000 and 200 I, over ten

4 years ago and are not relevant. 7. Dec!. of Daniel Watts, 'iJ7(x). Lack of Personal Knowledge (Cal. Ev. Sustained: --

"Defendants request the court Code § 702). Opinion, Conclusion, 5

6 take judicial notice that Pham Speculation (Cal. Ev. Code § 800 and Overruled: --promotes himself by publishing § 803). Watts lacks personal online videos and has been knowledge regarding if or how Pham 7

recognized by media throughout "promotes himself' or whether he has the Bay Area and the nation: "lectured extensively." Daniel Watt's

8

9 http://www.yelp.com/biz/randal other comments relating to being -pham-md-facs-san-jose "recognized" are speculation.

10 http://doctorbase.com/blog/rpha m2/article/8668 Dr. Pham Irrelevant (Cal. Ev. Code§ 210 and claims to have lectured §350-351 ). Whether Plaintiff "claims

II

12 extensively both in the US and to" have received awards is not abroad. He claims to have relevant. The two links are to review

13 received numerous national and websites, and also not relevant with international awards." regard to the statements made by

Daniel Watts in this paragraph. 14

15 8. Dec!. of Daniel Watts, 'iJ8. Irrelevant (Cal. Ev. Code§ 210 and Sustained: --"Defendants request the court §350-351 ). The number of Yelp users take judicial notice that Yelp is not relevant and potentially Overruled: --

16

claims an average misleading since none or very few of of 78 million monthly unique them may be viewing Plaintiffs

17

18 visitors to the Yelp.com site and information. Furthermore, whether a that 'Every business owner "can" setup a free

19 business owner (or manager) account is not relevant and misleading can setup a free account to post because anyone or any user can setup photos and a Yelp account for the business.

20

21 message her [sic] customers.!" 9. Dec!. of Alvin Lee, 'II 3: Lack of Personal Knowledge (Cal. Ev. Sustained: --

22 "Instead, my grandmother has Code § 702). Opinion, Conclusion, never been finished with an Speculation (Cal. Ev. Code § 800 and Overruled: --appointment with Pham in less § 803). The declaration does not state

23

24 than two hours. Pham or set forth how Alvin Lee has sometimes even takes two and a personal knowledge regarding the

25 half hours to complete an 'hour- length of the appointment when he is long' appointment. When Pham not the patient and merely "drops off' takes two hours to finish a one- his grandmother. The grandmother

26

27 hour appointment, he could have finished early and waited sometimes makes my in the waiting room before she was

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grandmother wait in the waiting room for up to 70 minutes after her appointment time." Dec!. of Alvin Lee, ~ 6: "There are almost never any empty seats in there because the waiting room is so crowded. It is always packed, and I have seen on several different occasions people in the waiting room waiting for a long time to see Pham because Pham has overbooked his appointments."

Dec!. of Alvin Lee, ~ 7: "When Pham charged my father $199 for supposedly 'prescription·

I , eyeg asses ....

Dec!. of Alvin Lee,~ 7: "I conducted a search using Google and discovered that the eyeglasses were sold without a prescription by many retailers, such as Walmart. I found an identical pair of these drugstore eyeglasses."

picked up some time later.

Opinion, Conclusion, Speculation (Cal. Ev. Code§ 800 and § 803). Alvin Lee speculates that Pham overbooked merely because people were sitting in the waiting room. Alvin Lee is also speculating that the people he saw are waiting to see Plaintiff, when they could be waiting for relatives or sitting there waiting for dilation drops to take effect.

Lack of Personal Knowledge (Cal. Ev. Code § 702). The declaration says that "Pham has overbooked," but does not state or set forth how Alvin Lee has personal knowledge regarding Plaintiff's patient schedules or medical practice, which accommodates walk-in patients. See Dec!. of D. Watts,~ 4, Exhibit A (Yelp page for Plaintiff says "By Appointment Only: No"). . Lack of Personal Knowledge (Cal. Ev. Code § 702). The declaration does not state or set forth how Alvin Lee has personal knowledge regarding what Plaintiff charged Young Lee for. This statement is speculation regarding what was charged. In actuality, the $199.00 charge is for both Plaintiff's services and the glasses. Opinion, Conclusion, Speculation (Cal. Ev. Code § 800 and § 803). The statement is conclusory in assuming that the "eyeglasses" were the same or otherwise "identical." Alvin Lee also speculates that Walmart sells that brand of eyeglasses.

Irrelevant (Cal. Ev. Code § 210 and §350-351 ). This statement is also not reliable or relevant in comparing specially recommended glasses by an

6

Sustained:

Overruled:

Sustained:

Overruled:

Sustained:

Overruled:


ophthalmologist following an eye exam to glasses found on the Internet.

2 13. Dec!. of Alvin Lee, 'II 8: Hearsay (Cal. Ev. Code§ 1200). This Sustained: --"My father has told me that he . statement contains inadmissible heard other patients hearsay regarding the statements of Overruled: --3

complaining about Pham "other patients" and statements made charging prescription prices for by the "father." 4

non-prescription eyeglasses." The statement is also vague and

5

6 ambiguous as to what "other patients." 14. Dec!. of Jenny Lee, 'II 5, Exhibit Hearsay (Cal. Ev. Code§ 1200). This Sustained: --

A-1 (pg. 4). exhibit appears to contain allegations 7

written by Jenny Lee in a BBB Overruled: --complaint involving hearsay

8

9 statements from Young Lee.

10 Lack of Personal Knowledge (Cal. Ev. Code § 702). Jenny Lee does not have personal knowledge of the allegations

I I

12 regarding Young Lee and Plaintiff described in this exhibit.

15. Dec!. of Jenny Lee, 'IJ2: Lack of Personal Knowledge (Cal. Ev. Sustained: --13

"Despite arriving o.n time, she Code § 702). The declaration does not has had to wait for at least 45 state or set forth how Jenny Lee has Overruled: --

14

I 5 minutes after her appointment personal knowledge regarding the time each time. Sometimes she length of the appointment when she

16 has to wait even longer. The merely "drops off" her grandmother. time she actually spends In fact, Jenny Lee specifically admits meeting with Pham is usually that this is all a beliefbased on what

17

I 8 no longer than 30 minutes." Young Lee and Chinh Thi Truong have told her. Dec!. of J. Lee, 'II 6

19 ("Because of my father's and grandmother's experiences with Pham, I believed (and still believe) ...

20

21 ").

22 The statement is also vague and ambiguous as to exactly which visits are in dispute and the dates of those

23

24 visits. 16. Dec!. of Jenny Lee, 'IJ2: Hearsay (Cal. Ev. Code § 1200). This Sustained: --

25 "My grand.ma has explained to statement contains inadmissible me that every patient she has hearsay regarding the statements of Overruled: --met at Pham' s office also has to other "patients" and statements made

26

27 wait this long for their by the "grandma." scheduled appointments."

28

7


Lack of Personal Knowledge (Cal. Ev. Code § 702). The declaration does not

2 state or set forth how Jenny Lee has personal knowledge regarding how

3 long other patients had to wait. This statement is vague and ambiguous as

4 to "every patient." The grandmother (Chinh Thi Truong) does not address this issue in her declaration.

5

6 The statement is also vague and

7 ambiguous as to exactly which visits are in dispute.

17. Dec!. of Jenny Lee,~ 3: Hearsay (Cal. Ev. Code§ 1200). This Sustained: --8

9 "While sitting in the waiting statement contains inadmissible room, [Young Lee] has heard hearsay regarding statements made by Overruled: --

10 patients describing their other "patients" and by Young Lee. frustrations with Pham's wait times. The other patients said Lack of Personal Knowledge (Cal. Ev.

II

12 that Pham consistently Code § 702). The declaration does not overbooked his appointment state or set forth how Jenny Lee has

13 times. He also overheard a personal knowledge regarding the conversation between a patient "other patients." and her son about having

14

15 charged her prescription prices The statement is also vague and for over-the-counter ambiguous as to exactly which visits

16 eyeglasses." are in dispute. 18. Dec!. of Jenny Lee, ~ 4: Lack of Personal Knowledge (Cal. Ev. Sustained: --

"When Pham charged my father Code § 702). The declaration does not 17

$199 for supposedly state or set forth how Jenny Lee has Overruled: --18 'prescription' personal knowledge regarding what

19 eyeglasses .... " Plaintiff charged Young Lee for.

20 Opinion, Conclusion, Speculation

21 (Cal. Ev. Code§ 800 and § 803). This statement is speculation regarding

. 12 what the charge is for. In fact, the $199.00 charge is for both Plaintiffs services and the glasses.

23

24 Jenny Lee is not an ophthalmologist

25 and there is no indication that she consulted with one regarding what are the differences between prescription 26

27 and non-prescription glasses. In fact, it may be unclear what prescription

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8

Case No. 1-12-CV-228332: [Proposed] Order Sustaining Plaintifrs Objections to Defendants' Evidence

and non-prescription glasses look like to those not trained in the field. Jenny

2 Lee merely assumed and speculated that Plaintiff allegedly sold glasses of

3 a certain type based on the look of the glasses.

19. Dec!. of Jenny Lee, ~ 6: Opinion, Conclusion, Speculation Sustained: --4

"Because of my father's and (Cal. Ev. Code§ 800 and § 803). grandmother's experiences with Jenny Lee's beliefs are speculation. Overruled: --

5

6 Pham, I believed (and still She is not Plaintiffs patient and was believe) that: (I) Pham has not present during any of the

7 fraudulently sold cheap over- examinations with Plaintiff. Jenny the-counter reading glasses to Lee is speculating regarding Plaintiffs his patients as if the glasses intent and the extent of any alleged

8

9 were high-value prescription fraud based on hearsay. eyewear; (2) Pham intentionally

10 overbooks his patients to get Lack of Personal Knowledge (Cal. Ev. more money; (3) Pham has Code § 702). Jenny Lee lacks done these acts on several personal knowledge to formulate the

II

12 occasions, indicating a beliefs described. Jenny Lee does not systematic and intentional have personal knowledge over what

13 pattern of abuse; ( 4) Pham Plaintiff charged his patients for, what commits these acts because he Plaintiffs patient schedules are, or serves primarily elderly and how Plaintiff interacts with other

14

15 Vietnamese-speaking clientele patients. who are susceptible to schemes

16 like Pham' s because oftheir age and status as immigrants."

20. Dec!. of Young Lee (entire The Court should not consider Sustained: --17

18 declaration): evidence that is unreliable. See Kulshrestha v. First Union Overruled: --

19 Commercial Com., (2004) 33 Cal. 4th 60 I, 606-608 (describing how reliability is important in the fact-

20

21 finding process). This entire declaration is unreliable because, on

22 information and belief, Young Lee's English is limited and may not fluent in English. In fact, Jenny Lee herself

23

24 makes this admission and suggests that a translator may be needed. See

25 Def. Mtn. to Strike, Dec!. of D. Watts, Exhibit A -I ("[Young Lee's] English is limited ... Should I just translate it 26

27 for him."). Young Lee states that he "heard patients describing their

28 9


frustrations ... other patients said that ... I have heard on at least one

2 occasion a patient and her son complaining." Dec!. of Young Lee, ~

3 I 0. These statements are not only inadmissible hearsay, but also

4 unreliable because of his limited English. The declarations do not address any interpretation issues nor

5

6 how he understood the words written in the declaration. Without an

7 interpreter, the declarant may lack competency. See Brown v. Ransweiler (2009) 171 Cal. App. 4th

8

9 516, 529 ("[C)ompetency must be shown in the supporting and opposing

10 . affidavits and declarations.") . 21. Dec!. of Young Lee,~ 7: Hearsay (Cal. Ev. Code § 1200). This Sustained:

-~

"When I showed the glasses to statement contains inadmissible II

12 friends and family, they hearsay regarding statements made by Overruled: -~

remarked that the glasses were "friends and family." 13 not prescription, but were

instead common drugstore Lack of Personal Knowledge (Cal. Ev. glasses that normally cost less Code § 702). The declaration does not

14

15 than $15 at Walgreens. My son, state or set forth how Young Lee has Alvin Lee, dicj a google search personal knowledge regarding what

16 for the glasses and found the Alvin Lee did. exact pair for sale on Amazon for less than $16." Opinion, Conclusion, Speculation

17

18 (Cal. Ev. Code § 800 and § 803). The statement is also conclusory in using

19 the term "exact pair." The remarks made by "friends and family" are opinions and speculation regarding

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21 what W a! greens actually sells. 22. Dec!. of Young Lee,~ 10: Lack of Personal Knowledge (Cal. Ev. Sustained: ---

22 "Pham is consistently late for Code § 702). This statement is vague our appointments." and ambiguous as to who "our" refers Overruled:

-~

to. The declaration does not state or 23

24 set forth how Young Lee has personal knowledge regarding other

25 individuals' appointments. 23. Dec!. of Young Lee, ~ I 0: Hearsay (Cal. Ev. Code§ 1200). This Sustained:

-~

"The other patients said that statement contains inadmissible 26

Pham consistently overbooked hearsay regarding statements made by Overruled: -~ 27

his appointment times. I have "other patients." 28

10

Case No. 1-12-CV -228332: [Proposed] Order Sustaining Plaintiff's Objections to Defendants' Evidence

heard on at least one occasion a patient and her son complaining

2 about Pham charging them prescription prices for over-the

3 counter eyeglasses." 24. Dec!. of Young Lee, '1[10: Lack of Personal Knowledge (Cal. Ev. Sustained: --

"Attached as Exhibit 2 are true Code § 702). Conclusion, Speculation 4

and correct copies of my credit (Cal. Ev. Code§ 800 and § 803). The Overruled: --card statements reflecting a declaration does not state or set forth

5

6 charge of $199 for the over-the- how Young Lee has personal counter eyeglasses, $50 for the knowledge regarding what Plaintiff appointment with Pham, and a charged Young Lee for. 7

$199 refund for those eyeglasses." Opinion, Conclusion, Speculation

8

9 (Cal. Ev. Code§ 800 and§ 803). This statement is speculation regarding the

10 charge. In actuality, the $199.00 charge is for both Plaintiff's services and the glasses. This statement

II

12 mischaracterizes what Exhibit 2 shows. Exhibit 2 merely shows two

13 charges from "Aesthetic & Refractive San Jose CA," one for $199 and one for $50. As such, the statement is

14

15 false with regards to what Young Lee's credit card statements actually

16 show. 25. Dec!. of Young Lee, '1[13: Opinion, Conclusion, Speculation Sustained: --

"Attached as Exhibit 3 is a true (Cal. Ev. Code § 800 and § 803). This 17

and correct copy of the statement is conclusory (and false) in Overruled: --18 Amazon.com listing for over- stating that the glasses are of the same

19 the-counter 'Foster Grant' model and type. Exhibit I and 3 of reading glasses. The reading Young Lee's own declaration show glasses listed on this that this statement is false. Exhibit I

20

21 advertisement for less than $10 shows that the glasses are labeled are the same model and type as "Richard HG 1010000" (the picture is

22 the pair that Pham sold to me a bit blurry). See Dec!. of Young Lee, for $199." '1[11, Exhibit I. On the other hand,

Exhibit 3 shows glasses of a 23

24 completely different brand called "Foster Grant" with size I. 75 and

25 model number R 116A. See Dec!. of Young Lee, '1[13, Exhibit 3. As such, the statement at issue is confusing as

26

27 well as unreliable and should be excluded under Cal. Ev. Code§ 352.

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II Case No. 1-12-CV-228332: [Proposed] Order Sustaining Plaintiffs Objections to Defendants' Evidence

26. Dec!. of Chinh Thi Truong This entire declaration is unreliable Sustained: ---

(entire declaration): because, on information and belief,

2 Chinh Thi Truong is not fluent in Overruled: --English. The declarations do not

3 address any interpretation issues nor how she understood the words written

4 in the declaration. Without an interpreter, the declarant may lack competency. See Brown v.

5

6 Ransweiler (2009) 171 Cal. App. 4th 516, 529 ("[C]ompetency must be

7 shown in the supporting and opposing

8 affidavits and declarations.").

9

Dated: Judge of the Superior Court

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CERTIFICATE OF SERVICE

I am over the age of eighteen years and not a party to the within cause; my business address is 22 Batterv Street. Suite "1 000. San Francisco. CA. 94I II. I hereby certify that on the date set forth below. I serv~d a true and correct copy of the following:

PLAINTIFF'S OPPOSITION TO DEFENDANTS' SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE §425.16 AND OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS.

PLAINTIFF'S OBJECTIONS TO DEFENDANTS' EVIDENCE

DECLARATION OF RANDAL PHAM, M.D., IN SUPPORT OF OPPOSITION TO SPECIAL MOTION TO STRIKE

DECLARATION OF DAVIU W. PARKE II, M.D., IN SUPPORT OF OPPOSITION TO SPECIAL MOTION TO STRIKE

DECLARATION OF DEBRA PHAIRAS IN SUPPORT OF OPPOSITION TO SPECIAL MOTION TO STRrKE

DECLARATION OF BO ZENG IN SUPPORT OF OPPOSITION TO SPECIAL MOTION TO STRIKE

(PROPOSED] ORDER DENYING DEFENDANTS' MOTION TO STRIKE AND MOTION FOR JUDGMENT ON THE PLEADINGS

[PROPOSED] ORDER SUSTAINING PLAINTIFF'S OBJECTIONS TO DEFENDANTS' EVIDENCE

On counsel and the parties in said cause via the method indicated below.

Daniel Watts I 051 Poplar St.

Chico. CA 95926

..lL By oven1ight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the person at the address above. I placed the envelope or package for collectio:> and overnight delivery at an office or a regularly utilized drop box ofthe overnight delivery carrier.

I declare under penalty of pet:jury that the foregoing is true and_,correct, and that this declaration was executed on November 30. 2012 at San Francisco. California; . <'

''·.__./.~-... /<t/ = .. ~/- ' -

/ Bo Zen<> •. "'

Case No. 1-12-CV-228332: Proof of Service

Documents

Objections Evidence Declarations in Opposition to Motion to Strike