Judge: David B. Gelfound, Case: 24CHCV01544, Date: 2024-11-19 Tentative Ruling

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Case Number: 24CHCV01544    Hearing Date: November 19, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER

Motion filed: 10/17/24

MOVING PARTY: Defendants Audley Osbourne, M.D. and Andrew Behesnilian, M.D.

RESPONDING PARTY: Plaintiff Arlene Aleman 

NOTICE: OK.

RELIEF REQUESTED: An order sustaining Defendants Audley Osbourne, M.D. and Andrew Behesnilian, M.D.’s Demurrer to Plaintiff’s Complaint.

TENTATIVE RULING: The Demurrer is OVERRULED.

BACKGROUND

On April 25, 2024, Plaintiff Arlene Aleman (“Plaintiff” or “Aleman”) filed a Complaint against Defendants Providence Holy Cross Medical Center, Audley Osbourne, M.D. (“Osbourne”), Brandon Hawkins, M.D., Brian Lee, M.D. (“Lee”), Andrew Behesnilian, M.D. (“Behesnilian”), Henry Shih, M.D. (“Shih”), and Does 1 to 20, alleging two causes of action: (1) Medical Malpractice, and (2) Medical Battery. On August 23, 2024, Plaintiff submitted an Amendment to Complaint, correcting the name of Defendant Brandon Hawkins, M.D. to John Hawkins, M.D. (“Hawkins”). Subsequently, Defendant Lee filed his Answer to the Complaint on October 9, 2024.

On October 17, 2024, Defendants Osbourne and Behesnilian (“Demurring Defendants”) filed the instant Demurrer (the “Demurrer”). Subsequently, Plaintiff filed her Opposition to the Demurrer on November 5, 2024, and Demurring Defendants filed their Reply on November 12, 2024.

ANALYSIS

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against them. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law[.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

A.    Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of the following matters:

1.      Request for Judicial Notice (“RJN”) No. 1: Confirmation of Plaintiff’s filing of the Complaint, dated April 22, 2024 (RJN Ex. “A.”)

2.      RJN No. 2: Confirmation of Plaintiff’s filing of the Complaint, dated April 23, 2024 (RJN Ex. “B.”)

3.      RJN No. 3: Confirmation of Plaintiff’s filing of the Complaint, dated April 24, 2024 (RJN Ex. “C.”)

Evidence Code section 452 provides, in pertinent part, “Judicial notice may be taken of the following matters: ... (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

            Accordingly, the Court GRANTS RJN Nos. 1, 2, and 3.

B.     Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., § 430.41, subd. (a)(4).)

Here, Demurring Defendants’ counsel, Kevin P. Miller (“Miller”), declares that Demurring Defendants sent a letter to Plaintiff’s counsel, Shirley Kenninger, outlining the grounds for the Demurrer. (Miller ¶ 3.) Despite the exchange of correspondence, the parties were unable to reach an agreement. (Ibid.)

The Court acknowledges the parties’ efforts to meet and confer; however, the Demurring Defendants’ chosen method, corresponding through letters, is insufficient to satisfy the requirements for an in-person of telephonic meet and confer, as mandated by the Code of Civil Procedure section 430.41, subdivision (a).

Nevertheless, the Court will proceed to examine the merits of the Demurrer, pursuant to Code of Civil Procedure section 430.41, subdivision (a)(4).

C.    Statute of Limitations

Code of Civil Procedure section 340.15 provides, in pertinent 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. 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.”

Demurring Defendants argue that Plaintiff’s Complaint is time-barred because (1) the one-year statute of limitations applies to this case, and (2) Plaintiff’s filing of the Complaint on April 24, 2024, exceeded the one-year time limit from the April 20, 2023, the date of the alleged tortious action. (Dem. at p. 5.)

In response, Plaintiff concedes that the one-year time limit applies; however, she contends that the filing deadline should be April 22, 2024, and her April 24, 2024 filing should be considered as timely, since her previous filings on April 22, and 23, 2024, were all rejected for clerical errors. (Opp’n. at p. 2.)

The Court turns to examine the issue of timeliness.

1)      Filing Deadline

Pursuant to Code of Civil Procedure section 12, “[t]he time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded. (Code Civ. Proc., § 12, see also Cal. Rules of Court, rule 1.10(a).)

“If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, “holiday” means all day on Saturdays, all holidays specified in Section 135 and, to the extent provided in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.” (Code Civ. Proc., § 12, subd. (a).)

The California Supreme Court has held that “[Code of Civil Procedure] section 12, [subdivision] (a) applies to statutes of limitation in general. [Citation]” (Deleon v. Bay Area Rapid Transit Dist. (1983) 33 Cal.3d 456, 461.)

Here, the Complaint alleges that the tortious action for both causes of action took place on April 20, 2023. (Compl. ¶¶ 10, 12.) Applying the one-year statute of limitations, the filing deadline became April 20, 2024, per Code of Civil Procedure section 340.15. Since April 20, 2024,  fell on a Saturday, the deadline for filing the Complaint is extended to the next nonholiday day, Monday, April 22, 2024. (Code Civ. Proc., § 12, subd. (a).)

Accordingly, the Court agrees with Plaintiff’s assessment that the filing deadline for the Complaint was April 22, 2024.

The Court next considers whether statutory tolling applies in situations where, like here, the Complaint filed on the deadline was rejected due to clerical errors.

2)      Statutory Tolling

Code of Civil Procedure section 1010.6 governs the electronic service and filing of documents. “A trial court may adopt local rules permitting electronic filing of documents....  Any document received electronically by the court between 12:00 a.m. and 11:59:59 p.m. on a court day shall be deemed filed on that court day. Any document that is received electronically on a noncourt day shall be deemed filed on the next court day.” (Code Civ. Proc., § 1010.6, subd. (e)(3).)

Additionally, California Rules of Court rule 2.253(b)(6) provides: “The effective date of filing any document received electronically is prescribed by Code of Civil Procedure section 1010.6. This provision concerns only the effective date of filing. Any document that is received electronically must be processed and satisfy all other legal filing requirements to be filed as an official court record.” (Underlines added.) The underlined language warns that mere receipt of a document does not mean it will be filed. The document may be rejected due to errors or failure to pay required filing fees.

            Significantly, Code of Civil Procedure section 1010.6, subdivision (e)(4)(E), states, “If the clerk of the court does not file a complaint or cross complaint because the complaint or cross complaint does not comply with applicable filing requirements or the required filing fee has not been paid, any statute of limitations applicable to the causes of action alleged in the complaint or cross complaint shall be tolled for the period beginning on the date on which the court received the document and as shown on the confirmation of receipt described in subparagraph (A), through the later of either the date on which the clerk of the court sent the notice of rejection described in subparagraph (C) or the date on which the electronic filing service provider or electronic filing manager sent the notice of rejection as described in subparagraph (D), plus one additional day if the complaint or cross complaint is subsequently submitted in a form that corrects the errors which caused the document to be rejected. The party filing the complaint or cross complaint shall not make any change to the complaint or cross complaint other than those required to correct the errors which caused the document to be rejected.” (Underlines added.)

Here, Plaintiff submitted evidence demonstrating that she first filed the Complaint electronically on April 22, 2024, via the vendor Green Filing. (RJN Ex. “A.”) This filing was rejected by the Court clerk for clerical errors (Opp’n. at p. 2.) Plaintiff subsequently attempted to file the Complaint electronically on April 23, and 24, 2024, (RJN Ex. “B”), and her April 24, 2024 filing was ultimately accepted by the Court, with a Notice of Confirmation of Electronic Filing generated the following day, April 25, 2024. (RJN Ex. “C.”)

Based on these records, the Court finds that Plaintiff’s initial filing was received by the Court on April 22, 2024. Although it was rejected due to clerical errors, statutory tolling applies under Code of Civil Procedure section 1010.6, subdivision (e)(4)(E), which addresses this precise issue.

Since the Court has determined that the filing deadline was April 22, 2024, it concludes that Plaintiff’s initial filing on April 22, 2024, met the filing deadline. Therefore, the Complaint is not barred by the statute of limitations.

Accordingly, the Court OVERRULES the Demurrer on this ground.   

D.    Second Cause of Action – Medical Battery

Demurring Defendants argue, in the alternative, that the Second Cause of Action is subject to Demurrer because Plaintiff has failed to plead sufficient facts to state the cause of action. (Dem. at p. 6.)

“There are three elements to a claim for medical battery under a violation of conditional consent: the patient must show his consent was conditional; the doctor intentionally violated the condition while providing treatment; and the patient suffered harm as a result of the doctor's violation of the condition. [Citation.]” (Conte v. Girard Orthopedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269.) Further, “[w]here a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 239.)

Here, Demurring Defendants assert that Plaintiff consent to the robotic surgery extended to the insertion of a “different tube” and argue that this insertion did not amount to a “substantially different” procedure. (Dem. at p. 7.) The Court finds this argument unpersuasive.

In the Complaint, Plaintiff alleges a clear condition of her consent that the procedure would be performed with functional robotic equipment, as advised by Defendant Osbourne following an unsuccessful prior surgery. (Compl. ¶ 9 [“In February of 2023 Defendant Audley Osbourne M.D. scheduled the surgery at Encino Outpatient Surgical Center.... After the surgery the Defendant Audley Osbourne M.D. informed the Plaintiff that he was only able to remove one kidney stone. Defendant Audley Osbourne M.D. explained to the Plaintiff that the other kidney stone was too large and in a location where it was lodged in such a way that it would require a special type of equipment ... a Robotic piece of equipment.”]) This condition appears essential to Plaintiff’s consent to the procedure.

Moreover, according to the Complaint, Defendant Osbourne discovered during the procedure that the robotic equipment had a broken lens. Despite this, he proceeded by inserting a second tube to attempt stone removal, even though Plaintiff had expressly consented to a robotic procedure. (Compl. ¶ 15 [“... Audley Osbourne MD, proceeded to attempt to remove the kidney stone a second time by placing another tube in the Plaintiff while she was sedated. This occurred when the first attempted procedure could not be completed due to the broken lens on the robotic equipment. Defendant Audley Osbourne MD. knew that the robotic equipment could not be used after he had attempted to use it only to discover the lens was broken so he then proceeded to attempt to remove the stone by putting in another tube which was unsuccessful.”]) This alleged action – performing a procedure by inserting a second tube while the robotic equipment has broken lens and could not be used – may be reasonably inferred to exceed the scope of Plaintiff’s consent.

Additionally, when construing the allegation liberally and assuming the facts as true, as is required in reviewing a demurrer, the Court finds that Plaintiff’s consent was conditioned upon the functional use of the robotic equipment. Therefore, whether the procedure, as actually conducted, constituted a violation of Plaintiff’s consent or fell outside the scope of her consent presents a mere triable issue, and does not affect the Court’s finding of the sufficiency of Plaintiff’s allegations, as discussed above.

Accordingly, the Court finds that Demurring Defendants have failed to meet their required burden to show that the Second Cause of Action is insufficiently stated.

            Therefore, the Court OVERRULES the Demurrer on this ground.

CONCLUSION

Defendants Audley Osbourne, M.D. and Andrew Behesnilian, M.D.’s Demurrer to the Complaint is OVERRULED.

Defendants Audley Osbourne, M.D. and Andrew Behesnilian, M.D. are ordered to serve and file their Answers to the Complaint within 30 days.

Moving party to give notice.