Judge: Holly J. Fujie, Case: 19STCV21752, Date: 2023-01-20 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 19STCV21752    Hearing Date: January 20, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS ACTION

MOVING PARTY: Plaintiff/Cross-Defendant Museum Center Surgery Group, Inc. (“MCSG”)

RESPONDING PARTY: Defendant/Cross-Complainant Samari Doby (“Doby”)

The Court has considered the moving, opposition and reply papers.

BACKGROUND

            On June 21, 2019, MCSG filed a complaint (the “Complaint”) alleging breach of contract.  On September 3, 2019, Doby filed a cross-complaint (the “XC”) alleging professional negligence (medical malpractice).

The XC alleges: Doby received medical care from MCSG beginning on November 2, 2016.  (XC ¶¶ 7-8.)  On or after December 4, 2018, Doby discovered that MCSG caused him injury and harm.  (XC ¶ 13.)

MCSG filed a motion for summary judgment (the “Motion”) to the XC on the grounds that Doby’s medical malpractice claim is barred by the statute of limitations.

REQUEST FOR JUDICIAL NOTICE

            Doby’s Request for Judicial Notice is GRANTED.

DISCUSSION

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  California Code of Civil Procedure (“CCP”) section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense.  (CCP § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 

MCSG argues that Doby’s medical malpractice claim is barred by the statute of limitations. 

Statute of Limitations

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.  (CCP § 340.5.)  The one-year limitation period of CCP section 340.5 is a codification of the discovery rule, under which a cause of action accrues when the plaintiff is aware, or reasonably should be aware, of “injury,” a term of art which means “both the negligent cause and the damaging effect of the alleged wrongful act.”  (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290.)  In general, 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.   (Barber v. Superior Court (1991) 234 Cal.App.3d 1076, 1082.  The plaintiff need not be aware of either the specific facts or the actual negligent cause of the injury.  (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 779.)  If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated.  (Id.)

MCSG provides evidence that it performed a lumbar discectomy surgery on Doby on November 2, 2016.  (Separate Statement of Undisputed Material Facts (“UMF”) 2.)  The alleged act that forms the basis of the claims in the XC occurred on November 11, 2016, when Doby fell backwards from a stool while seeing a doctor at MCSG after the surgery.  (UMF 3-4.) 

During his deposition on December 17, 2021, Doby testified that in the days after his surgery, he felt like he was healing.  (See Declaration of Arthur Aaronson (“Aaronson Decl.”) ¶ 4, Exhibit 1 at 61:18-19.)  After falling from the stool on November 11, 2016, Doby started to feel like he was not getting any better.  (Id. at 61:21-22.)  Doby testified that the fall was devastating to him because it was potentially a set-back on his healing progress.  (Id. at 53:1-6.)  Doby testified that he felt like he injured himself at the time of the fall.  (Id. at 59:1.)

The Court finds that MCSG has satisfied its burden to show no triable issues of material fact as to whether Doby knew or should have known of his injury.  In the opposition (the “Opposition”), Doby presents evidence that before his surgery, he had been advised that the surgery may not provide 100 percent relief and that it may take years to recover from the surgery.  (See Additional Material Fact (“AMF”) 5; Declaration of Samari Doby (“Doby Decl.”) ¶ 4.)  Although he felt pain when he fell on November 11, 2016, because he had been advised of a prolonged recovery period, Doby did not suspect that the fall would exacerbate or inhibit his recovery from the surgery.  (See AMF 4-6.)  Doby did not learn that his November 11, 2016 fall was the reason that he did not fully heal from his surgery until he saw another doctor in December 2018.  (AMF 7-8.) 

Although Doby’s Opposition presents evidence that Doby did not connect his November 11, 2018 fall with his ongoing injuries, the Opposition does not present evidence that raises a triable issue of fact regarding when Doby’s injury occurred or when he was on notice that it may have had a damaging effect on his recovery.  Doby’s deposition testimony provides that he experienced pain when he fell and that he felt that his recovery from the surgery stalled after the fall.  The Court finds that Doby’s medical malpractice claim is barred by CCP 340.5.  The Court therefore GRANTS the Motion.

            Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

       Dated this 20th day of January 2023