Judge: Curtis A. Kin, Case: 22STCV28224, Date: 2023-02-23 Tentative Ruling

Case Number: 22STCV28224    Hearing Date: February 23, 2023    Dept: 72

DEMURRER

Date:               2/23/23 (9:30 AM)

Case:               Seung Il Lee v. Huy Quang Hoang et al. (22STCV28224)

TENTATIVE RULING:

Defendant Huy Quang Hoang, M.D.’s Demurrer to Complaint is SUSTAINED.

Defendant Huy Quang Hoang, M.D. asserts that the negligence cause of action is barred by the statute of limitations. It is undisputed that the statute of limitations set forth in CCP § 340.5 applies. “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.” (CCP § 340.5.)

Plaintiff Seung Il Lee alleges negligence related to Hoang’s performance of a mycotoxin test on August 13, 2019. Three years from August 13, 2019 is August 13, 2022. The Complaint was filed on August 30, 2022, more than three years after the alleged date of injury.

Plaintiff allegedly discovered the negligence on July 17, 2021. One year from July 17, 2021 is July 17, 2022. The Complaint was filed on August 30, 2022, more than one year after the alleged date of discovery of the injury.

Regardless of whether a one-year or three-year statute of limitations applies, the negligence cause of action against defendant Hoang is time-barred.

Plaintiff argues that the statute of limitations was tolled by service of a notice of intent to commence the action, pursuant to CCP § 364(a). (See CCP § 364(d).) However, “[i]n a demurrer, the court considers only the four corners of the complaint, as well as matters that may be judicially noticed, and assumes the truth of the allegations in the pleading.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Complaint contains no allegations regarding service of any notice of intent letter. Further, plaintiff has not demonstrated that the date of service of the notice of intent letter is judicially noticeable. Accordingly, plaintiff may not rely on the service of any notice of intent letter to demonstrate that the Complaint was timely filed.

“[A] demurrer based on an affirmative defense [such as the statute of limitations] will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.”  (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.) For the foregoing reasons, the Complaint is time-barred on its face. The demurrer is SUSTAINED. 

Ten (10) days to amend the negligence cause of action asserted against defendant Hoang and to add a cause of action for fraud against defendant Hoang.