Judge: Donald F. Gaffney, Case: Salvatore v. Lee MD, Date: 2023-08-16 Tentative Ruling
TENTATIVE RULING:
For the reasons set forth below, Defendants Pacific Cardiovascular Associates Medical Group Inc., Los Alamitos Internal Medical Group Inc. dba Los Alamitos Cardiovascular Medical Group, and Robert S. Lee, M.D.’s Demurrer to the Complaint is SUSTAINED, with leave to amend, and the Motion to Strike is DENIED as moot.
A. Statement of Law - Demurrer
“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: … (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.” (Code Civ. Proc., § 430.10, subds. (e) & (f)[1]; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action stated therein].)
“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (§ 430.40, subd. (a).) “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” (§ 430.60.)
A demurrer challenges the sufficiency of a pleading by raising questions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) As such, the only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility the defect can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318.) On the other hand, “a trial court does not abuse its discretion by sustaining a general demurrer without leave to amend if it appears from the complaint that under the applicable substantive law there is no reasonable possibility that an amendment could cure the complaint’s defect.” (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486.)
In ruling on a demurrer, the trial court must accept as true all material facts properly pleaded in plaintiff’s petition, disregarding only conclusions of law and allegations contrary to judicially noticed facts. (Burt v. County of Orange (2004) 120 Cal.App.4th 273, 277.) All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief under any possible legal theory. (Woods v. Superior Court (1981) 28 Cal.3d 668, 673.) In evaluating the demurrer, the trial court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Blank, supra, 39 Cal.3d at p. 318.) “‘A general demurrer admits the truth of all material factual allegations in the complaint [citation]; … the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.’ [Citations.]” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 936; see Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 245 [proof of damages].)
B. Statement of Law – Motion to Strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof….” (§ 435.) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (§ 436.)
“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (§ 437, subd. (a).)
C. Defendants Adequately Met and Conferred Prior to Filing the Demurrer and Motion to Strike
Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer, to see whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (§ 430.41, subd. (a).) The demurring party is required to meet and confer with the opposing party at least five days before the date the responsive pleading is due. (§ 430.41, subd. (a)(2).) As part of the meet-and-confer process, the demurring party “shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (§ 430.41, subd. (a)(2).)
“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (§ 435.5, subd. (a).) “As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.” (§ 435.5, subd. (a)(1).)
The meet-and-confer declaration shall state “the means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer,” or “[t]hat the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (§ 430.41, subd. (a)(3).) However, “[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. (§ 430.41, subd. (a)(4); Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 356; Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 515.)
“The moving party shall file and serve with the motion to strike a declaration stating either of the following: (A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike. (B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (§ 435.5, subd. (a)(3).) However, “[a] determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.” (§ 435.5, subd. (a)(4).)
On April 10, 2023, Defendants e-mailed Plaintiffs, and they outlined the deficiencies in the Complaint. (Declaration of David J. Masutani, ¶ 3.) On April 24, 2023, Defendants’ counsel telephonically met and conferred with Siobhan Salvatore, but the parties were unable to reach a resolution. (Masutani Declaration, ¶ 4.) Thus, the Court finds Defendants adequately met and conferred prior to filing their Demurrer and Motion to Strike.
a. The Complaint, as Pled, is Time-Barred
Under the Medical Injury Compensation Reform Act (MICRA) (Civ. Code, § 3333.2), “an action for injury or death against a health care provider based upon such person’s alleged professional negligence” must be brought within “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.” (Code Civ. Proc., § 340.5.) “[T]he special statute of limitations for professional negligence actions against health care providers applies only to actions alleging injury suffered as a result of negligence in rendering the professional services that hospitals and others provide by virtue of being health care professionals: that is, the provision of medical care to patients.” (Flores v. Presbyterian Intercommunity Hosp. (2016) 63 Cal.4th 75, 88.)
Courts have unanimously held that the limitations period does not begin to run until the plaintiff reasonably suspects professional negligence by the health care provider. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102-103; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110; accord, Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398; Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 289-290; Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391; see Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189 [one-year limitations period does not begin to run until plaintiff discovers both injury and negligent cause].) Courts “‘do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, [it] look[s] to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.’ [Citation.]” (Arroyo, supra, 225 Cal.App.4th at pp. 290-291.)
However, the statute of limitations in professional medical malpractice cases is tolled by 90 days when the plaintiff gives the health care provider notice, in the last 90 days of the limitation period, of its intent to sue the health care provider[2]. (Code Civ. Proc., § 364, subds. (a) & (d); Davis v. Marin (2000) 80 Cal.App.4th 380, 385.) “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (Code Civ. Proc., § 364, subd. (d).) “No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered,” and electronic service constitutes an acceptable means of service. (Code Civ. Proc., § 364, subds. (b) & (c); Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 178; Code Civ. Proc., § 1010.6; see Jones v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 307 [service by fax complies with section 364].) However, the alleged failure to provide proper notice of the intent to sue does not bar the malpractice action. (Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 268-269; Rosado v. Alameida (S.D. Cal. 2007) 497 F.Supp.2d 1179, 1195.)
“The one-year limitations period for medical malpractice—no shorter than the period applicable to personal injury suits in general—begins to run upon discovery, actual or constructive, of an ‘injury,’ that is, an abnormal condition and its negligent cause. The period expires inexorably one year later, and the Legislature has made no provision for relief on general grounds of ‘excusable neglect’ to file suit on time. In other words, in medical malpractice cases we must examine whether plaintiff exercised ‘reasonable diligence’ in discovering his ‘injury,’ but the malpractice limitations statute forecloses a more general inquiry whether he was nonetheless diligent in bringing his action.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 902; accord, Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1562-1563; see Hanooka, supra, 22 Cal.App.4th at p. 1562 [“the one-year period is not subject to extension”].)
In Hanooka, the Court of Appeal for Division 2 of the Second District held plaintiffs “cannot extend the medical malpractice statute of limitations, section 340.5, by applying section 473 to the notice provision of section 364. Section 340.5 makes no provision for an extension of a limitations period on a showing of good cause, or specifically under section 473. Indeed, section 340.5 prohibits tolling beyond the three-year period except in particular circumstances, and no tolling is provided at all for the one-year period following discovery. Section 364, which contains a limitations period requiring 90 days’ notice prior to commencing a medical malpractice action, should likewise not be susceptible to extension as it is contained within title 2 of the Code of Civil Procedure (“Time of Commencing Actions”) and inexorably impacts upon the limitations period of section 340.5. ‘Unknown defendants’ are the only exception to section 364’s notice requirements; there is no exception for good cause shown, and accordingly application of section 473 is precluded. We conclude that applying section 473 to section 340.5 through section 364 would create a ‘loophole’ not envisioned by the Legislature.” (Hanooka, supra, 22 Cal.App.4th at p. 1563; see Jackson v. Doe (2011) 192 Cal.App.4th 742, 755, Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 344, and Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927, 931 [acknowledging section 473 of the Code of Civil Procedure does not afford relief from a dismissal caused by plaintiff’s failure to comply with the statute of limitations in a medical malpractice action].)
In their Complaint, Plaintiffs twice admit they were aware of the medical negligence no later than December 10, 2021 (Complaint, page 7:36, 8:59-8:63.) Despite this knowledge, Plaintiffs did not file their Complaint until December 27, 2022. This was untimely.
In their Complaint, Plaintiffs explain they attempted to file their Complaint on December 10, 2022, but the Complaint was rejected. They also allege they resubmitted the Complaint on December 12, 2022. First, they do not explain why, despite claiming they resubmitted the Complaint on December 12, 2022, it was not filed until 15 days later. More importantly, the one-year statute of limitations is not tolled due to Plaintiffs’ mistake, inadvertence or excusable neglect, such as their contention that they “were provided some incorrect forms and incomplete information…..” (Response, 5:12-5:15.)
While Plaintiffs did not file their Complaint within one year of December 10, 2021, the one-year statute of limitations might be tolled if they gave Defendants at least 90 days’ prior notice of the intention to commence the action. (Code Civ. Proc., § 364, subd. (a).) However, there are no allegations in the Complaint that Plaintiffs gave such notice, although it is plausible this was a mere oversight.
Since there is a possibility of successfully amending the Complaint, the Court sustains the Demurrer, with leave to amend.
Plaintiffs also argue in their Response that “it could be argued that the first day the Plaintiff’s had a clear understanding of the erred procedure and results of the two procedures … came during an appointment with Dr. Fernando Mendoza on October 4, 2022….” (Response, 6:9-6:15.)
The Court rejects this argument, as the law is clear the limitations period begins to run when the Plaintiffs reasonably suspected professional negligence by the healthcare provider. (Sanchez, supra, 18 Cal.3d at pp. 102-103.) It is not when the professional negligence is confirmed. In addition, while Plaintiffs allege in their Complaint that Carmen Salvatore saw a cardiologist on October 4, 2022, there is no allegation that this was the date Plaintiff reasonably suspected Defendants’ professional negligence.
In fact, after their December 10, 2021, discovery of Defendants’ potential professional negligence, Plaintiffs requested his medical records from Defendants. (Complaint, page 8:70-8:72.) This contradicts Plaintiffs’ theory that the statute of limitations did not begin to run until October 4, 2022.
b. Plaintiffs’ Complaint is for Medical Negligence, Not General Negligence
In their Response, Plaintiffs argue “Interpretation of the law and case law provided does not eliminate Negligence and Malpractice….” While Plaintiffs’ Response could have been better pled, Plaintiffs seem to argue their Complaint could sound in both general and professional negligence.
A party cannot evade the limitations of MICRA by asserting non-MICRA causes of action, as “‘the courts must determine whether it is nevertheless based on the “professional negligence” of the health care provider so as to trigger MICRA.’” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 353; Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514.) Courts “must focus on the nature or gravamen of the claim, not the label or form of action the plaintiff selects.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347.) Causes of action that challenge the manner in which the professional rendered health care services, and that do not allege "some collateral course of conduct pursued for [the professional’s] own gain or gratification,” are subject to MICRA. (Id. at p. 352.)
Here, it is clear from the allegations of the Complaint that Carmen Salvatore has alleged a cause of action for Professional Negligence, while Siobhan Salvatore might have a Loss of Consortium claim. As pled, “the focus of [Plaintiffs’] claims concern the manner in which [Defendants] rendered [their] professional services …, not some collateral course of conduct pursued for [Defendants’] own gain or gratification.” (Larson, supra, 230 Cal.App.4th at p. 352.)
E. The Motion to Strike is Moot
Since the Court sustains the Demurrer with leave to amend, the Motion to Strike is denied as moot.
Should Plaintiffs desire to file an amended complaint that addresses the issues in this ruling, Plaintiffs shall file and serve the amended complaint within 30 days of service of the notice of ruling.
Defendants to give notice.