Judge: Frank M. Tavelman, Case: 22BBCV00456, Date: 2022-09-16 Tentative Ruling

Case Number: 22BBCV00456    Hearing Date: September 16, 2022    Dept: A

22BBCV00456

DEMURRER AND MOTION TO STRIKE

ALLEGATIONS:

Patricio Monroy ("Plaintiff") filed suit against Evan Farr, D.D.S. dba Santo Tomas Dental Group, erroneously sued as Santo Tomas Dental Group, (“Defendant”), alleging that Defendant was negligent in performing tooth extractions on Plaintiff, which resulted in Plaintiff’s injuries. Plaintiff received treatment beginning in October 2019 and continued through 2020.

Plaintiff filed a Complaint on June 23, 2022, alleging the following five causes of action: (1) Medical Malpractice; (2) Negligent Infliction of Emotional Distress; (3) Breach of Contract; (4) Battery; and (5) Violation of Business and Professions Code § 17200.

HISTORY:

The Court received the Demurrer filed by Defendant on August 15, 2022; the opposition filed by Plaintiff on September 1, 2022; and the reply filed by Defendant on September 9, 2022.

The Court received the Motion to Strike filed by Defendants on August 15, 2022. The Court has not received any opposition or reply.

RELIEF REQUESTED:

Defendant demurs to the entire Complaint on the ground that it is untimely. Defendant individually demurs to each cause of action raised in the Complaint on your

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Defendant move to strike the following portions of the Complaint:

1.      Paragraph 48, Complaint, p. 7:6-7, stating: “Under Civil Code of Procedure 1021.5, et seq[.], Plaintiff also requests his reasonable Attorney’s fees in the court’s discretion.”

2.      Prayer of Plaintiff’s Complaint in which he seeks attorneys’ fees pursuant to Civil Code of Procedure § 1021.5. Complaint, p. 7:16 Prayer, ¶ 5; and

3.      Prayer of Plaintiff’s Complaint in which he seeks punitive damages. Complaint, p. 7:15, Prayer, ¶ 4

ANALYSIS:

Demurrer

I.          LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to CCP §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

II.        MEET AND CONFER

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least five days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP §§ 430.41(a)(4); CCP 435.5(a)(4).)

Although Defendant contends that the email correspondence between the parties satisfied the meet and confer requirement (Beale Decl. ¶¶ 2-3, Exh. A), CCP § 430.41 explicitly states that it must be done by telephone or in person. Email correspondence or letters does not satisfy this procedural requirement. Nevertheless, the Court will proceed to address the merits of the demurrer despite this deficiency. (CCP § 430.41(a)(4).) The Court cautions the parties that a code-compliant meet and confer effort is required for each demurrer and motion to strike on subsequent pleadings.

III.       MERITS

A.    Statute of Limitations

Defendant argues that the entire action is time-barred by the applicable statute of limitations. In its demurrer Defendants first address the first cause of action for medical malpractice under this argument before addressing the remaining claims. The Court shall take each argument in turn.

                                            i.            Whether the First Cause of Action for Medical Malpractice is Time-Barred

Defendant demurs to the first cause of action for medical malpractice on the ground that it is time-barred.

The statute of limitations for a medical malpractice is “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 occur first.” (CCP § 340.5.) “Once 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.) “[W]here the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies.” (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.)

Under CCP § 364, “No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.” (CCP § 364(a).) “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.” (CCP § 364(d).)

Here, Defendant argues, based on the allegations of the Complaint, Plaintiff became aware of his claims against Defendant as early as December 2020 or as late as February 2021 when the first letter of intent to sue was served. (Demurrer at pg. 8.) Thus, Defendant reasons that any claim for medical malpractice should have been filed in or around February 2022 at the latest, not June 23, 2022. (Id., CCP § 340.5.) Defendant further argues that the tolling provision provided under Emergency Rule 9(a) is either inapplicable under the circumstances or fails to make Plaintiff’s claim timely. (Demurrer at pp. 8-9.)

In opposition, Plaintiff argues that, under Emergency Rule 9, the deadline for him to file his complaint was extended to August 2022. (Opposition at pp. 5-6.)

In reply, Defendant argues that Plaintiff misapplies Emergency Rule 9 because Defendant asserts that the tolling provision only applies if the cause of action accrued before or during the relevant period, i.e. between April 6, 2020 and October 1, 2020. (Reply at pg. 2.) As alleged in the Complaint, Defendant argues that the Plaintiff’s claim did not accrue until as late as February 2021, which is beyond the relevant period afforded by Emergency Rule 9. (Id.)

Upon review of the arguments, the Court finds that Emergency Rule 9 is inapplicable in this instance. Emergency Rule 9 provides, “[n]otwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020. Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020.” (CRC, Emergency Rule 9(a)-(b).) Thus, this tolling provision would have applied to the three-year statute of limitation provided under CCP § 340.5, if the injury occurred as early as November 2019 when Plaintiff first began treatment with Defendant. (Compl. ¶ 16.) However, the Complaint specifically alleges that Plaintiff became aware of the damage caused by Defendant’s dental work by late 2020. (Compl. ¶ 19.) For the purposes here and to read the Complaint in the light most favorable to Plaintiff, the Court shall assume “late 2020” means “December 2020.”

In Plaintiff’s opposition, he contends that he was unable to receive “a proper determination [of his injury] until even after his February 2021 letter.” (Opposition at pg. 6.) However, this statement is in complete contradiction with the allegations made in the Complaint. As alleged, “Plaintiff sought a second opinion of his condition in late 2020 and was told his jaw had been damaged by Defendant.” (Compl. ¶ 19.) It is immaterial that Plaintiff received a third and fourth opinion in March and May 2021, respectively, when a notice to sue under CCP § 364(d) was served in February 2021. (Compl. ¶ 20-21, 24.) Thus, the Court finds it questionable that Plaintiff did not receive a “proper determination” of his injury until after February 2021 when he was informed as early as late 2020 that his jaw was damaged by Defendant. (Compl. ¶ 19.) Thus, Plaintiff’s injury accrued in December 2020 when he first discovered it, which was long after the tolling period under Emergency Rule 9. (CCP § 340.5.)

Moreover, because the right to sue notice was served in February 2021—two months after the discovery of his injury, the 90 day extension provided under CCP § 364(d) does not apply because the notice was not served within 90 days of the expiration of the statute of limitations. It is immaterial that a second notice was sent on September 1, 2021 when Plaintiff retained new counsel. (Opposition at pg. 3.)

Furthermore, Plaintiff appears to make the argument that a two-year statute of limitations under negligence under CCP 335.1 should apply. (Opposition at pg. 7, relying on So v. Shin (2013) 212 Cal.App.4th 652, 666-667.) However, the Court does not find this argument persuasive. So v Shin stands for the proposition that a medical malpractice claim can be treated as ordinary negligence, as opposed to professional negligence, when the actions are not taken “for the purpose of delivering medical care to a patient.” (So, supra, 212 Cal.App.4th at pg. 667.) The Complaint directly alleges that Defendant’s action in providing medical care fell below the applicable care. (Compl. ¶¶ 18-20.) Thus, the two-year statute of limitations for ordinary negligence does not apply.

Accordingly, because Plaintiff failed to file his complaint within one year of discovery his injury as required under CCP § 340.5, the first cause of action for medical malpractice is time-barred and the Court sustains the demurrer to the first cause of action without leave to amend.

                                          ii.            Whether the Remaining Causes of Action are Time-Barred

Defendant also demurs to the second through fifth causes of action on the ground that they are also time-barred.

“When a plaintiff asserts a claim against a health care provider on a legal theory other than professional negligence, courts must determine whether the claim is nonetheless based on the health care provider's professional negligence, which would require application of MICRA.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347.) “To make that determination, courts must examine not only the legal theory alleged, but also the nature of the health care provider's alleged conduct and the legislative history of the MICRA provision at issue.” (Id.) “When, as here, the question presented concerns which limitations period applies, courts also must focus on the nature or gravamen of the claim, not the label or form of action the plaintiff selects.” (Id.)

Defendant argues that Plaintiff’s claims for negligent infliction of emotional distress, breach of contract, battery, and violation of Business and Professions Code § 17200 are derived from Plaintiff’s medical malpractice claim. (Demurrer at pp. 9-10.) Thus, Defendant reasons that because, the medical malpractice claim is time-barred so are the remaining causes of action. (Demurrer at pg. 10, relying on Larson, supra, 230 Cal.App.4th at  347.) 

In opposition, Plaintiff fails to directly address this argument. Instead, Plaintiff contends that the remaining causes of action are still timely because their respective statute of limitations have not expired. (Opposition at pp. 7-8.) However, the Court does not find this argument persuasive. As in Larson, the statute of limitations under MICRA applies to other claims where the alleged conduct arises from professional negligence. (Larson, supra, 230 Cal.App.4th at 351.)

Upon review of the Complaint, it is clear that the remaining causes of action premised on Defendant’s rendering of his professional services. For instance, in the second cause of action, it is alleged that Defendant owed Plaintiff a duty as a medical professional not to injure Plaintiff and the injury was caused because Defendant “so neg negligently and carelessly performed the work.” (Compl. ¶¶ 24-26.) Similarly, the third cause of action for breach of contract alleges that Defendant failed to perform the services as agreed upon. (Compl. ¶¶ 32-34.) As for the fourth cause of action for battery, it is alleged that Defendant intentionally performed to work on Plaintiff in a negligent manner, which resulted in a non-consensual offensive contact with Plaintiff. (Compl. ¶ 37.) Lastly, as for the fifth cause of action for violation of the Business and Professions Code § 17200, it is alleged that Defendant engaged in an unlawful business practice of misrepresenting Defendant’s competency in performing the services rendered. (Compl. ¶¶ 42-45.)

Consequently, based on these allegations, these remaining causes of action are inseparable from the first cause of action for medical malpractice. Therefore, the one-year statute of limitations under CCP § 340.5 applies to the second through fifth cause of action.

Accordingly, because the second through fifth causes of action are premised on the performance of health care services provided by Defendant and the first cause of action for medical malpractice is time-barred, the Court sustains the demurrers to the second through fifth causes of action as they are also time-barred.

IV.       CONCLUSION

The Court thus sustains the demurrer as to the Complaint without leave to amend because each claim is time-barred. In the interest of judicial economy, the Court declines to address Defendant’s remaining arguments that the causes of action have been insufficiently pleaded.

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Motion to Strike

Because the Court has sustained Defendant’s demurrer in its entirety, the Court denies as moot Defendant’s motion to strike.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Evan Farr D.D.S. Inc. dba Santo Tomas Dental Group’s Demurrer and Motion to Strike came on regularly for hearing on September 16, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED IN ITS ENTIRETY WITHOUT LEAVE TO AMEND.

THE MOTION TO STRIKE IS DENIED AS MOOT.

IT IS SO ORDERED.

DATE:  September 16, 2022                          _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles