Judge: Daniel M. Crowley, Case: 20STCV05619, Date: 2022-10-19 Tentative Ruling
Case Number: 20STCV05619 Hearing Date: October 19, 2022 Dept: 28
Defendant Estate of Lawrence Door, M.D.’s Demurrer without Motion to Strike
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On February 13, 2020, Plaintiff Sally Faal (“Plaintiff”) filed this action against Defendant Lawrence Dorr, MD (“Dorr”). Plaintiff later amended the complaint to include Defendants Keck Medicine of USC (“Keck”), Henry Mayo Newhall Memorial Hospital, LLC (“HM”) and Estate of Lawrence Dorr, M.D. (“Estate”).
On September 21, 2022, the Estate filed a Demurrer to be heard on October 19, 2022.
There is no currently scheduled trial date.
PARTY’S REQUESTS
Estate requests the Court sustain the demurrer, without leave to amend, on the basis that the Complaint is time-barred under the statute of limitations.
LEGAL STANDARD
CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)
According to CCP § 340.5, “[I]n 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. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.”
DISCUSSION
Plaintiff’s complaint alleges that Dorr provided negligent medical care to Plaintiff from December 2017 to January 2018 via a series of surgeries to repair Plaintiff’s hip.
In bringing a cause of action for injury against a health care provider, a complaint must be brought within three years of the date of injury, or one year after the Plaintiff should have discovered the injury. The Estate alleges that because Plaintiff’s complaint does not specify when Plaintiff became aware of the injury, the date of discovery should be January 2018, when the surgeries were finished.
The Court agrees that Plaintiff’s complaint does not state when Plaintiff discovered her injuries. This could mean that Plaintiff’s complaint is potentially barred by the statute of limitations if she should have discovered this information prior to February 13, 2019. The Court sustains the demurrer, with leave to amend, as Plaintiff could potentially amend this issue.
CONCLUSION
Defendant Estate of Lawrence Door, M.D.’s Demurrer without Motion to Strike is SUSTAINED, with 30 days leave to amend.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.