Judge: Frank M. Tavelman, Case: 24NNCV01718, Date: 2024-08-30 Tentative Ruling

Case Number: 24NNCV01718    Hearing Date: August 30, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Beryl Bai (Plaintiff) brings this action against John C. Chao, D.D.S. dba Alhambra Dental Group (Defendant). Plaintiff alleges that she was seriously injured by Defendant’s negligent dental treatment from 2018 to 2021. Plaintiff’s Complaint states causes of action for (1) Medical Negligence and (2) Elder Abuse.

Defendant now demurs to each cause of action on grounds that they are barred by the applicable statute of limitations and fail to state sufficient facts. Plaintiff opposes the demur.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 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. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at 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 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 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 without leave to amend 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.)

II.                 MERITS

Meet and Confer

C.C.P. § 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Yousefi Decl. ¶ 2.)

Facts

In or about January 2018, Plaintiff visited Defendant’s clinic at Alhambra Dental Group for dental work. (Compl. ¶ 46.) Plaintiff sought treatment for receding gums and two loose teeth. (Id.) Plaintiff alleges Defendant required $18,000 in payment before beginning any work. (Compl. ¶ 48.) Plaintiff alleges that Defendant diagnosed her with a periodontal disease requiring laser treatment, but that Defendant is not a licensed periodontist. (Compl. ¶ 49.) Plaintiff alleges that she underwent the treatment plan and paid $27,300 for the services. (Id.) Plaintiff asserts that she continued to treat with Defendant through 2021. (Compl. ¶ 50.)

In 2022 Plaintiff sought treatment from a periodontist given her persistent symptoms with her teeth and gums. (Compl. ¶ 60.) Plaintiff alleges that it was during this consultation she realized Defendant’s negligence. (Compl. ¶ 61.) In January 2024, Plaintiff treated with a dentistry expert and was diagnosed with Temporomandibular Joint (TMJ) and Obstructive Sleep Apnea (OSA). (Compl. ¶ 64.) Plaintiff alleges she was never diagnosed by Defendant with TMJ or OSA. (Compl. ¶ 47)

First COA – Medical Negligence – Overruled

Defendant demurrers to this cause of action on grounds that it is barred by the applicable statute of limitations. “The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action…In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316.) For Defendant to succeed in his demurrer, he must demonstrate that the cause of action is necessarily barred by the relevant statute of limitations on the face of the Complaint. 

C.C.P. § 340.5 provides in relevant part:

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.

Defendant argues that Plaintiff’s cause of action is barred under either measure in C.C.P § 340.5. This suit was filed on May 21, 2024, more than three years from the injury or one year from discovery. Plaintiff argues that her claim is not entirely barred because the statute of limitations has not run out on her claims relating to TMJ and OSA. Plaintiff’s argument on this front is persuasive. 

The term injury for purposes of section 340.5 refers to the damaging effect of the alleged wrongful act and not to the act itself. The injury is not necessarily the ultimate harm suffered, but instead occurs at ‘the point at which appreciable harm is first manifested. An injury manifests when damage is evidenced in some significant fashion; when the damage has clearly surfaced and is noticeable. Because the three-year limitations period accrues at the time of injury, it is the surfacing of appreciable harm that marks the beginning of the three-year period.

(Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 779 [internal citations and quotation marks omitted].)

For purposes of the one-year period, discovery of the injury means the plaintiff has discovered both his or her injury and its negligent cause. The plaintiff need not be aware of either the specific facts or the actual negligent cause of the injury. If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated.

(Id. [internal citations and quotation marks omitted].)

Plaintiff’s argument that she only “discovered” her injury related to the failure to diagnose TMJ and OSA comports with the factual allegations of her Complaint. Plaintiff alleges that her teeth began to protrude forward and give her a neanderthal like appearance. (Compl. ¶ 56.) Plaintiff does not ascribe a date for when she first noticed this. Plaintiff also alleges that during her 2021 periodontist consultation, she realized Defendant’s negligence because she was told that any dental work performed on a patient with gum disease would be ineffective. (Compl. ¶ 61.)

On its face Plaintiff’s Complaint does not definitively indicate that her discovery of the TMJ and OSA related injuries was outside of the statute of limitations. Plaintiff’s Complaint does not affirmatively indicate that the 2022 periodontist consultation had anything to do with her lower teeth protrusion. Plaintiff only alleges that she was diagnosed with TMJ and OSA in 2024 and thereafter became aware of Defendant’s negligence in not diagnosing her.

The Court stresses that on demurrer, the facts in a pleading must be strictly construed in favor of Plaintiff. This demurrer is not concerned with whether Plaintiff’s claims may be barred, it is concerned with where they are necessarily barred on the face of the Complaint. Plaintiff’s factual pleadings do not definitively establish that her claim is barred by the applicable statute of limitations. Whether Plaintiff’s claims will survive more substantive dispositive motions remains to be seen.

Accordingly, the demurrer to the first cause of action is OVERRULED.

Second COA –Elder Abuse – Sustained with Leave to Amend

Plaintiff’s argument in opposition speaks to financial Elder Abuse which was not alleged in the complaint, but rather physical Elder Abuse was. She does not state such a cause of action in her Complaint. Plaintiff’s second cause of action is for Elder Abuse under Welf. & Inst. Code § 15610.07 (hereinafter physical Elder Abuse), which is a separate and distinct claim from one for financial Elder Abuse brought under Welf. & Inst. Code § 15610.30(a). This distinction is crucial because the two claims have separate statutes of limitations and separate pleading elements. As will be discussed below, the Court finds any potential claim for physical Elder Abuse would be barred by the applicable statute of limitations.  

The Court notes that Plaintiff does not plead her age, an essential element to a claim for elder abuse. The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a 'person residing in this state, 65 years of age or older.' (Welf. & Inst. Code § 15610.27.) Nowhere in the Complaint does Plaintiff plead that she is 65 years or older. Nor does The only allegation speaking to Plaintiff’s age is that she “was substantially more vulnerable than other members of the public…because of her age and physical condition.” (Compl. ¶ 95.) This is allegation is insufficient to allege that Plaintiff is over the age of 65.

Plaintiff’s cause of action is subject to demurrer on grounds of failure to plead her age alone. Regardless, the Court finds further analysis concerning the statute of limitations.   

When considering a Demurrer, the Court focuses solely on what is alleged in the operative complaint, not additional facts asserted in the opposition that are not in the Complaint.  A cause of action for physical Elder Abuse has a two-year limitations period. (Benun v. Superior Court (2004) 123 Cal.App.4th 113 [holding that the statute of limitations for assault/battery are facially applicable to a cause of action under Welf. & Inst. Code § 15610.07].) As Plaintiff last treated with Defendant in 2021, her 2024 appears necessarily time barred.  Nonetheless, based on what was presented in the Complaint, the Court believes that Plaintiff may be able to amend to properly allege an Elder Abuse cause of action.  Therefore, leave to amend will be granted.

The demurrer to the second cause of action is SUSTAINED with 20 days’ leave to amend.

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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 

John C. Chao, D.D.S. dba Alhambra Dental Group’s Demurrer came on regularly for hearing on August 30, 2024, 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 TO THE FIRST CAUSE OF ACTION IS OVERRULED.

THE DEMURRER TO THE SECOND CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE. 

IT IS SO ORDERED. 

DATE:  August 30, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles