Judge: Gary I. Micon, Case: 25CHCV00111, Date: 2025-03-27 Tentative Ruling

Case Number: 25CHCV00111    Hearing Date: March 27, 2025    Dept: F43

Dept. F43

Date: 03-27-25

Case # 25CHCV00111, Herrera v. Henry Mayo Newhall Memorial Hospital

Trial Date: None set.

DEMURRER

MOVING PARTY: Defendant Henry Mayo Newhall Memorial Hospital

RESPONDING PARTY: Plaintiff Esperanza Herrera

RELIEF REQUESTED

Order sustaining demurrer to plaintiff’s complaint.

RULING: Demurrer is sustained without leave to amend.

SUMMARY OF ACTION

Plaintiff Esperanza Herrera (Plaintiff) filed this case against defendant Henry Mayo Newhall Memorial Hospital (Defendant) on January 13, 2025.  Plaintiff alleges that between January 7, 2024 and January 9, 2024, she was a patient in Defendant and Defendant’s employees’ care.  Plaintiff suffers from Alzheimer’s dementia and sustained injuries when Defendant’s employees left her alone.  Plaintiff alleges a single negligence cause of action.

Plaintiff’s complaint states that the statute of limitations for filing this case was tolled until January 13, 2025.  Due to uncontrolled fires, Plaintiff’s attorney’s office was closed on January 7, 2025 and reopened on January 13, 2025.

Defendant filed a demurrer to the complaint on February 20, 2025 asserting that the complaint is barred by the statute of limitations.  Plaintiff opposes noting she served a 90-day notice pursuant to Code of Civil Procedure section 364 on Defendant.  No reply has been filed.

MEET AND CONFER

Before filing a demurrer, the parties must meet and confer “in person, by telephone, or by video conference.”  (Code Civ. Proc., § 430.41, subd. (a).)  The moving party must file and serve a meet and confer declaration stating either: (1) the means by which the parties met and conferred, that the parties did not reach an agreement resolving the issues raised in the demurrer; or (2) that the party who filed the pleading subject to the demurrer failed to respond to the meet and confer request or failed to meet and confer in good faith.  (Code Civ. Proc., §§ 430.41, subd. (a)(3).)  Defense counsel sent Plaintiff’s counsel a meet and confer letter on February 11, 2025.  (Declaration of Jeffrey A. Rector, ¶ 3.)  counsel met and conferred telephonically on February 12th but did not reach an agreement.  (Rector Dec., ¶ 4.)

ANALYSIS

A¿ party may respond to a pleading against it by demurrer based on any single or combination of eight enumerated grounds, including¿that¿“the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.”  (Code Civ. Proc., § 430.10, subds. (e), (f).)  The grounds for demurring must be 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.)  “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.)  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.)

            First Cause of Action: Negligence

Defendant demurs to the first cause of action asserting that Plaintiff’s claims are barred by the one-year statute of limitations in Code of Civil Procedure section 340.5.

“A defendant may demur to a complaint on the basis of the statute of limitations when it is clear from the face of the complaint that the action is time-barred.”  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412 [citing Code Civ. Proc., § 430.30, subd. (a)].)

Defendant contends that under Thomas v. Gilliland, equitable tolling does not apply to section 340.5’s one-year statute of limitations unless the plaintiff has alternate remedies and has acted in good faith.  (Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434.)  Plaintiff did not have any alternate remedies to filing this case in the California Superior Court, and Plaintiff’s claim is the singular pursuit of a medical malpractice action.  Therefore, the court should sustain Defendant’s demurrer.

The statute of limitations for claims arising from a healthcare provider’s negligence is three (3) years after the date of the injury or one (1) year after the date of discovery, whichever occurs first.  (Code Civ. Proc., § 340.5; see also Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 699.)

The complaint establishes that Plaintiff’s claim accrued on January 9, 2024 when she sustained injuries.  Plaintiff alleges that she suffers from Alzheimer’s dementia, that she should not be left alone, and that Defendant’s nursing employees knew leaving her alone would create a risk of injury.  (Compl., ¶ 6.)  While Plaintiff was a patient in Defendant’s care on January 9, 2024, Plaintiff was left alone, got out of bed unassisted to go to the bathroom, and fell and broke her wrist, which required surgery and follow-up care.  (Ibid.)  One year from January 9, 2024 is January 9, 2025, and Plaintiff had until January 8, 2025 to file a complaint.

Plaintiff concedes that she filed her complaint after the one-year statute of limitations expired on January 9, 2025.  (Compl., ¶ 8.)  Plaintiff alleges that Defendant received timely notice that Plaintiff was making a claim for her injuries because the parties were negotiating leading up to Plaintiff’s filing of the complaint.  (Ibid.) 

Before commencing an action based upon health care provider’s professional negligence, the plaintiff must serve a notice of intent to sue on defendant at least 90-days’ before plaintiff files the action.  (Code Civ. Proc., § 364, subd. (a).)  The notice must include (1) the legal basis of the claim and (2) the type of loss sustained, including with specificity the nature of the injuries suffered.  (Code Civ. Proc., § 364, subd. (b).)  If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time to file the case is extended 90 days from the day the notice is served.  (Code Civ. Proc., § 364, subd. (d).); Kumari v. The Hospital Committee for the Livermore-Pleasanton Areas (2017) 13 Cal.App.5th 306, 315 [quoting Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 390].)

The complaint is silent on whether and when Plaintiff served a notice of intent on Defendant, but Defendant attaches a copy of the notice to its demurrer.  (Rector Dec., Exh. A.)

However, Plaintiff argues that the court has discretion to toll the statute of limitations until Monday, January 13, 2025 because Plaintiff did not file a late complaint in bad faith.  Plaintiff’s complaint alleges that the January 2025 fires caused her attorney’s law offices to close and that the office was without power from January 7, 2025 until the office reopened on Monday, January 13, 2025.  (Compl., ¶ 8.)

Under the equitable tolling doctrine, the “plaintiff must pursue a claim in a timely manner or demonstrate that he or she was prevented from doing so by improper action of the court or the defendants.”  (Scharer v. San Luis Rey Equine Hospital, Inc. (2012) 204 Cal.App.4th 421, 431.)  The doctrine does not apply in cases where the original complaint is defective.  (Id. at p. 430.)

Courts apply the equitable tolling doctrine, where necessary, to “ensure fundamental practicality and fairness.”  (Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 555-56.)  The doctrine applies “[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.  Thus, it may apply where one action stands to lessen the harm that is the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason.”  (McDonald v. Antelope Valley Cmty. Coll. Dist. (2008) 45 Cal.4th 88, 99 [internal citations omitted]; see also Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434 [holding that plaintiff had not alternate remedies when bringing a singular medical malpractice action].).) 

A plaintiff seeking equitable tolling, as to a subsequent case filed, must show (1) timely notice to defendants; (2) lack of prejudice to defendants in gathering evidence to defend; and (3) good faith and reasonable conduct by plaintiffs.”  (Long, supra, 33 Cal.App.5th at p. 555.)  “Where a claim is time-barred on its face, the plaintiff must specifically plead facts that would support equitable tolling.”  (Ibid.)

Defendant argues that under Thomas v. Gilliland, equitable tolling cannot toll the one-year statute of limitations in a medical negligence action because Plaintiff did not have any alternate remedies to filing this case, and because Plaintiff’s claim is the singular pursuit of a medical malpractice claim.  Defendant states that that the Thomas cases discussion of lack of good faith is dicta.  (See Thomas, supra, 95 Cal.App.4th at pp. 434-37.)

Plaintiff responds that the Thomas holding implies that equitable tolling can apply to toll the one-year statute of limitations in medical malpractice cases if the facts and evidence support it.  Plaintiff asserts that her 90-day notice of intent is an alternate remedy for resolving this medical malpractice case that can only be filed in the California Superior.  Plaintiff does not provide legal authority to support this assertion.  Plaintiff attempts to distinguish her case from the Thomas plaintiff noting that the Thomas plaintiff had filed his complaint, failed to serve the complaint, dismissed the complaint, and then refiled the case two years later.  Further, unlike the Thomas complaint, Plaintiff’s Complaint contains allegations that support equitable tolling.  (See Compl., ¶ 8.)

Thomas v. Gilliland is factually distinct from this case.  There, plaintiff filed a medical malpractice suit three months after he discovered his injuries but voluntarily dismissed the case without prejudice 22 months later.  (Thomas, supra, 95 Cal.App.4th 427, 430.)  The day plaintiff dismissed the case, plaintiff filed a second complaint which was identical to the first complaint.  (Ibid.)  Plaintiff did not serve defendant until five months later.  (Ibid.)  Defendant demurred to the second complaint asserting the second complaint was time-barred.  (Ibid.)  Plaintiff argued that his timely filing of the first complaint tolled the statute of limitations.  (Ibid.)  However, the second complaint contained no allegations supporting a claim for equitable tolling.  (Id. at p. 433.)  The trial court held that the equitable tolling doctrine did not apply because plaintiff did not have any alternate remedies—because his claim was a singular medical malpractice action—and plaintiff did not act reasonably or with any good faith when he dismissed his first complaint, filed a second identical complaint after the statute of limitations had expired, and then waited five months to serve Defendant.  (Id. at p. 435.)  Further, plaintiff did not contact defense counsel about any issues with the first complaint or state that he was having problems with his case. (Ibid.) The trial court sustained the demurrer, and the Court of Appeal affirmed.

Unlike the Thomas, Plaintiff has filed only one complaint which includes allegations about equitable tolling and the California fires that led to Plaintiff’s untimely Complaint.  (See Compl. ¶ 8.)  However, Plaintiff fails to state alternate remedies or that the court or Defendant’s misconduct prevented her from filing a timely complaint. Plaintiff’s 90-day notice of intent is not an alternate remedy because the section 364 notice of intent is a prerequisite to seeking a remedy.  (See Scharer v. San Luis Rey Equine Hospital, Inc. (2012) 2024 Cal.App.4th 421, 431.)  Plaintiff does not point to any other “alternate” remedies.

Plaintiff asserts that Defendant will not suffer prejudice because Defendant allegedly investigated Plaintiff’s claim and should have obtained the information needed to defend this case.  (Compl., ¶ 8.) Based on Plaintiff’s April 2024 notice and Plaintiff’s allegations that the parties were negotiating during the January 2025 California fires, Defendant knew about Plaintiff’s intent to sue at least eight months before Plaintiff filed her Complaint.  Defendant does not directly address the prejudice issue.

Next, Plaintiff attempts to show she acted in good faith by alleging she filed her untimely complaint because during the January 2025 California fires, her attorney was locked out of his office without power.  (Compl., ¶ 8.)  However, Plaintiff does not demonstrate that she was prevented from filing her complaint due to improper conduct by either the court or Defendant. (Scharer, supra, 204 Cal.App.4th at p. 431.)  Additionally, a review of the notice of intent letter attached to Defendant’s demurrer indicates that the allegations in the Complaint are not much different from the April 2024 Notice of Intent.

The Complaint is also lacks any allegations showing Plaintiff’s diligent actions between the date of the Notice of Intent and January 7, 2025.  Plaintiff states that negotiations occurred during the January 2025 fires, but neither the Complaint nor Plaintiff’s opposition point to specific actions Plaintiff or her counsel took before January 7, 2025.  (Compl., ¶ 8.)

Although the court could find good faith in Plaintiff’s immediate filing of the complaint on January 13th, Plaintiff fails to demonstrate the other elements of equitable tolling including that alternate remedies were available.

Finally, Defendant argues that the court cannot grant leave to amend because the only amendment Plaintiff could make—adding the date Plaintiff served the notice of intent on Defendant—would not cure the statute of limitations issue because the notice of intent was served on April 16, 2024, over six months before the one-year statute of limitations expired.  (See Rector Dec., Exh. A, p. 1.)

The court agrees that based on the allegations in the Complaint and the notice of intent, an amendment cannot cure the statute of limitations issue.

Accordingly, Defendant’s demurrer to the Complaint is sustained without leave to amend.

CONCLUSION

Defendant’s demurrer to the Complaint is sustained without leave to amend.

Defendant to give notice.