Judge: Cynthia A Freeland, Case: 37-2022-00041480-CU-MM-NC, Date: 2023-12-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 28, 2023

12/29/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Medical Malpractice Demurrer / Motion to Strike 37-2022-00041480-CU-MM-NC LOGSDON VS. CURRY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Notice - Other, 10/30/2023

Defendant North Coast Surgery Center, Ltd. dba North Coast Surgery Center ('Defendant')'s demurrer to Plaintiff Joyce Logsdon ('Plaintiff')'s Complaint is sustained.

Defendant's Request for Judicial Notice ('RJN') is granted as to Exhibit A to Defendant's Notice of Lodgment ('NOL'). Defendant RJN is denied as to Exhibits B-D to Defendant's NOL.

A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

The demurrer to the first cause of action for medical negligence is sustained. The court construes Plaintiff's lack of opposition as a concession of the demurrer's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the Complaint, on its face, demonstrates that Plaintiff's medical negligence claim is time-barred by the applicable statute of limitations.

More specifically, California Code of Civil Procedure ('CCP') § 340.5 provides, in relevant part, that: 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.

Cal. Code Civ. P. § 340.5. '[O]nce a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, he has one year to bring his suit.' Gutierrez v. Mofid (1985) 39 Cal. 3d 892, 896. 'A patient is charged with 'presumptive' knowledge of his negligent injury, and the statute of limitations commences to run, once he has 'notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation ....'' Carrillo v. County of Santa Clara (2023) 89 Cal. App. 5th 227, Calendar No.: Event ID:  TENTATIVE RULINGS

3046066 CASE NUMBER: CASE TITLE:  LOGSDON VS. CURRY [IMAGED]  37-2022-00041480-CU-MM-NC 234-235 (quoting Gutierrez, 39 Cal. 3d at 896-897).

The Complaint alleges that on April 20, 2021, Plaintiff presented to Defendant's facility for a routine Left Lumbar L1/L2 and L2/L3 transformational epidural steroid injection (the 'Procedure'). See Complaint, ¶ 12. Defendant Dr. Jason Curry performed the Procedure using fluoroscopy to release the arthritis in Plaintiff's back and to aid in her left lumbar radiculopathy. Ibid. During the Procedure, Plaintiff indicated that something was not right as she instantly felt tightness below her breastbone as well as partial paralysis. Ibid., ¶¶ 14-16. Following the Procedure, medical providers for Defendant asked that Plaintiff get up from the procedure table, but she could not do so. Ibid., ¶ 17. Plaintiff's legs were weak, and she was unable to roll over and hold her body erect on her own. Ibid., ¶ 18. As a result, Plaintiff could no longer ambulate or climb stairs and was thus unable to return home. Ibid., ¶ 19. Thereafter, Plaintiff had to return to the hospital for an additional six days and, later, endured an additional two-month stay at Tri-City Medical Center. Ibid., ¶¶ 19-20. Upon her discharge, Plaintiff was no longer able to live independently and now requires a 24-hour caregiver. Ibid., ¶ 20. On April 19, 2022, Plaintiff served Defendant with her intention to commence this action pursuant to CCP § 364. Ibid., ¶ 9. On October 14, 2022, nearly eighteen months after the Procedure, Plaintiff commenced this action by filing a Complaint against Defendant and Dr. Curry for medical negligence and vicarious liability. See Defendant's NOL, Ex. A; ROA No. 1. Based on the foregoing, the court finds that Plaintiff failed to commence this action within one year of when, according to the allegations set forth in the Complaint, she learned of the injuries giving rise to the lawsuit (even after accounting for 90-day notice period set forth in CCP § 364).

Accordingly, the court sustains the demurrer to the first cause of action without leave to amend as Plaintiff, in failing to oppose the demurrer, has failed to demonstrate a reasonable possibility that the foregoing, deficiencies can be cured by amendment. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

In light of the foregoing, the court sustains the demurrer without leave to amend. Defendant is directed to submit a proposed Judgment consistent with this ruling within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 29, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 29, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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