Judge Audra Mori, Case 21STCV13472 2022-09-26 Tentative Ruling

On April 8, 2021, Plaintiff Tetiana Mishchenko (“Plaintiff”) filed this action against Defendant Ksenia Prokopyeva (“Defendant”), erroneously and additionally sued as d/b/a Aesthetic Skin Care, for injuries relating to a Botox treatment to Plaintiff’s forehead that Plaintiff alleges Defendant negligently performed. The operative First Amended Complaint (“FAC”) alleges a single cause of action for negligence. Plaintiff alleges that she was a customer of Defendant’s skin care business on March 5, 2019, when Defendant negligently provided Botox injections to Plaintiff. (FAC ¶¶ 7-8.) Plaintiff allegedly did not discover and could not have discovered the negligent act of Defendant until or about September 10, 2019, when Plaintiff sought medical care and treatment for her injuries, and that Plaintiff sought treatment until August 20, 2021.

Defendant demurs to the FAC arguing Plaintiff’s claims are barred by the applicable statute of limitations. Plaintiff opposes the demurrer, and Defendant filed a reply.

Defendant contends that pursuant to ruling on Defendant’s demurrer to the complaint, it has already been determined that Plaintiff’s claims against Defendant are governed by CCP § 340.5, and that because Plaintiff concedes she discovered her injuries on or about September 10, 2019, Plaintiff’s claims are barred by the statute of limitations under CCP § 340.5. Further, Defendant asserts that Plaintiff in response to Defendant’s request for admissions has admitted that she communicated her alleged injury to Defendant on March 5, 2019. Defendant avers that as a result, Plaintiff’s claim is bared by the statute of limitations and cannot be cured to state a claim against Defendant.

In opposition, Plaintiff argues that the FAC does not allege anywhere that Defendant is a health care provider. Rather, Plaintiff argues that Defendant has a cosmetic skin care business and is unlikely to be licensed under any of the relevant acts. Plaintiff argues that the FAC properly alleges that Plaintiff did not discover her injuries and defendant’s negligence until September 10, 2019. Additionally, Plaintiff argues that the statute of limitations was extended pursuant to Emergency Rule 9, so the complaint was properly two years and 34 days after the incident.

In reply, Defendant avers that Plaintiff’s claims are barred by the applicable statute of limitations, as Plaintiff admits she discovered her injury on April 2, 2019, and even if the allegations in the FAC are taken as true, Plaintiff’s complaint is untimely based on Plaintiff’s claim she discovered her injuries on September 10, 2019. Defendant does not argue or provide judicially noticeable evidence that Defendant is a licensed health care provider.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Sarkesians Decl. ¶ 5.)

Defendant requests the court take judicial notice of Defendant’s requests for admissions (“RFAs”), set one, and Plaintiff’s responses to the RFAs. (Demurrer Request for Judicial Notice Exhs. A-B.) It is true that a court may take judicial notice of a party's admissions or concessions, but only in cases where the admission ‘can not reasonably be controverted,’ such as in answers to interrogatories or requests for admission, or in affidavits and declarations filed on the party's behalf.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.)

CCP § 340.5 states, “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

“ ‘Health care provider’ means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.” (Id. § 340.5(1).)

On or about March 5, 2019, Plaintiff was a customer and business invitee of Defendants' cosmetic skin care business located at 14545 Friar Street, #200, Van Nuys (City of Los Angeles), California 91411. At said time and place, Defendants, and each of them, undertook to, and did, provide Botox injections to Plaintiff.

At said time and place, Defendants, and each of them, so negligently provided such Botox injections so as to proximately cause the injuries and damages hereinafter alleged.

Plaintiff did not discover, and in the exercise of reasonable care, could not have discovered the negligent acts of Defendants, and each of them, or the fact of her injury therefrom, or the cause of her injuries and symptoms, until on or about September 10, 2019 when Plaintiff sought medical care and treatment for her injuries .Plaintiff sought treatment until August 20,2021 and only at that time that she realize the negligence when the treatment did not correct the injury. At no time prior to said medical consultation was Plaintiff aware that the negligent acts of Defendants, and each of them, had caused Plaintiff to be injured.

Defendant avers that FAC against Defendant is barred by the statute of limitations under CCP § 340.5 because Plaintiff is asserting claims for professional negligence against Defendant. In making this argument, Defendant greatly relies on the ruling to Defendant’s demurrer to the original complaint, which was issued by a Commissioner presiding in Department 31 at the time, who heard and ruled on the demurrer. (Min. Order May 10, 2022.)

“Given the judiciary's core power to decide controversies between parties, a trial court retains the authority to alter or amend its own rulings in the same case, whether made by the same judge or by his or her predecessor. Any other restriction would directly and materially impair and defeat the court's most basic functions, exercising its discretion to rule upon controversies between the parties and ensuring the orderly administration of justice. A court could not operate successfully under the requirement of infallibility in its interim rulings.” (In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1577-78, internal quotations and citations omitted.)[1] “Trial court judges are required to follow the United States and California Constitutions, California statutory law, the law as declared by the appellate courts of this state [Citation.] as well as any “law of the case” as declared by the appellate court. But they are not bound by rulings made … by a previous trial court judge. Trial court judges are independent judicial officers. They have both the right and the duty, consistent with their oaths of office, to exercise their best judgment, not to abandon it to previous trial court rulings.” (People v. Sons (2008) 164 Cal.App.4th 90, 100; see also Timm v. McCartney (1935) 9 Cal.App.2d 230, 232-33 [a trial judge is not bound to follow the ruling of another on a demurrer]; accord. Provience v. Valley Clerks Trust Fund (1984) 163 Cal.App.3d 249, 256 [The doctrine of law of the case applies only to Supreme Court or Court of Appeal opinions; no comparable effect is given to trial court rulings.].)

Furthermore, the May 10, 2022, concerned Plaintiff’s original complaint, not Plaintiff’s FAC and the allegations therein. The function of a demurrer is to test the pleadings alone; any ruling on a demurrer tests nothing more than the relevant pleading itself. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Accordingly, there is nothing in the ruling to the demurrer to the complaint that restrains this Court from analyzing and ruling on the instant demurrer to the FAC.

As Plaintiff contends, while the FAC alleges that Defendant provided Botox injections to Plaintiff, the FAC does not include any allegations regarding whether Defendant was licensed under statutes specified in CCP § 340.1.[2] In determining whether CCP § 340.1 applies, the issue becomes whether the Medical Injury Compensation Reform Act (“MICRA”) applies to Defendant. MICRA applies to health care providers sued for medical malpractice or professional negligence. (CCP §§340.5, 364; Flores v. Presbyterian Intercommunity Hosp. (2016) 63 Cal.4th 75, 81.) MICRA defines “health care provider” as certain licensed or certified persons, “and any [licensed] clinic, health dispensary, or health facility.” (Code Civ. Proc., § 340.5; Bus. & Prof. Code, § 6146(c)(2).)

Although Defendant contends that Plaintiff is asserting a claim for professional negligence, and that the applicable statute of limitations for a such claim against Defendant is governed by CCP § 340.5, Defendant submits no judicially noticeable evidence to suggest that Defendant was licensed under the statutes specified in CCP § 340.5, or that an exception applicable to Defendant exists. (See Chosak v. Alameda County Medical Center (2007) 153 Cal.App.4th 549, 561-62 [the “health care provider” definition in CCP § 340.5 reasonably includes persons who are “lawfully practicing pursuant to an exception to a licensing or certificate requirement.”].) Defendant cites no authority showing that MICRA and CCP § 340.5 applies to Defendant in this matter, if Defendant was not licensed at the time of the injury alleged herein. (See e.g. Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1419-21 [finding MICRA does not apply to non-licensed persons or non-licensed entities]; accord. Waters v. Bourhis (1985) 40 Cal.3d 424, 436 [MICRA inapplicable when a provider operates in a capacity for which he or she is not licensed].)

Because the licensing status of Defendant is not pled in the FAC, and Defendant does not otherwise submit judicially noticeable evidence regarding such, the Court cannot determine at this stage of the proceedings whether MICRA, and thus, CCP § 340.5, applies to Plaintiff’s claims against Defendant or not.

If the statute of limitations under CCP § 340.5 does not apply to Defendant, the statute of limitations under CCP § 335.1 would apply to Plaintiff’s personal injury claims against Defendant. CCP § 335.1 provides that the statute of limitations for “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” is two years.

Based on the allegations in the FAC that Plaintiff was not aware of Defendant’s negligent acts until September 10, 2019, this would mean that Plaintiff’s complaint was timely filed on April 8, 2021. Similarly, to the extent Defendant contends the judicially noticeable evidence shows Plaintiff was aware of her alleged injury on April 2, 2019, Plaintiff’s complaint would be timely pursuant to CCP § 335.1 and Emergency Rule 9.

Judicial Council Emergency Rule 9, enacted in response to the Covid-19 pandemic, provides, “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” The effect of tolling is that the limitations period stops running during the tolling event, and begins to run again when the tolling event has concluded. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) The time period between April 6, 2020, and October 1, 2020, is 178 days. 178 days after April 2, 2021, assuming this is the date that the statute of limitations would have originally expired under CCP § 340.5 if it began to run on April 2, 2019, was Monday, September 27, 2021. Plaintiff, therefore, would have timely filed this action on April 8, 2021.

Hon. Audra Mori

Judge of the Superior Court

[1] In In re Marriage of Nicolas, there was a change in the judicial officer presiding over the case, and the appellate court affirmed the second judge’s rulings even though they were at odds with the first judge’s rulings on the same type of motion. 186 Cal.App.4th at 1577-78. In reaching its determination that the trial court maintains its authority to alter its own rulings upon a change in presiding judicial officers, the Court of Appeals reasoned that a miscarriage of justice results where a court is unable to correct its own perceived legal errors. (Id. at 1578, quoting Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105.)

[2] The May 10, 2022 Order does not address any allegations regarding Defendant being licensed under the relevant provisions, or lack of such allegations, in ruling on the demurrer.