Judge Holly J. Fujie, Case 22STCV03785 2023-05-09 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.

MOVING PARTIES: Defendants Sylvia Arcos, O.D. and Sylvia Arcos, O.D., APC (collectively, the “Arcos Defendants”); Harold J. Katzman, M.D., Inc.; K.M. Murata, O.D.; Harold J. Katzman, M.D.; L.A. Eye Realty Company, LLC (collectively, “Moving Defendants”)

The Court has considered the moving, opposition and reply papers. On May 3, 2023, Plaintniff filed a supplemental opposition declaration. The Court finds that this filing constitutes a surreply which is not expressly authorized under California Code of Civil Procedure (“CCP”) or California Rules of Court (“CRC”). (See CCP § 1005; CRC, r. 3.113(d).) The Court exercises its discretion and declines to consider Plaintiff’s surreply. (See Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 703.)

This action, which was initiated on January 31, 2022, arises out of alleged wrongdoing that occurred during an optometrist’s appointment. The currently operative first amended complaint (the “FAC”) alleges: (1) fraud by intentional misrepresentation; (2) negligence; (3) intentional infliction of emotional distress; (4) negligent hiring, supervision or retention of employee; (5) negligence – respondeat superior; (6) personal injury; (7) medical malpractice; (8) civil conspiracy; (9) unjust enrichment; and (10) conversion.

In relevant part, the FAC alleges: On January 31, 2020, Plaintiff received an eye examination from an optometrist located at the facility associated with Moving Defendants to receive a new prescription and new eyeglasses. (FAC ¶ 1.) Plaintiff began experiencing severe eye pains and headaches a couple of days after receiving a new prescription and purchasing new glasses from Moving Defendants. (See id.) On February 17, 2020, when he visited another optometrist’s office to receive a second opinion, Plaintiff learned that Moving Defendants filled his prescription incorrectly. (FAC at p. 4.) On February 20, 2020, Plaintiff sent Moving Defendants notice of his intention to sue in accordance with CCP section 364.

On April 10, 2023, Moving Defendants collectively filed a demurrer (the “Demurrer”) to the FAC on the grounds that the FAC fails to state sufficient facts to constitute a cause of action and is uncertain. On April 10, 2023, the Arcos Defendants separately filed another demurrer the “Arcos Demurrer”) on the grounds that the FAC fails to state sufficient facts to constitute a cause of action and is uncertain.[1] The Arcos Demurrer raises the argument that the FAC fails to state facts to constitute any cause of action because Plaintiff’s claims are all barred by the statute of limitations.[2] Moving Defendants collectively filed a joinder to the Arcos Demurrer on April 14, 2023 (the “Joinder”). The Joinder specifies that it is based on all arguments, including the statute of limitations argument, raised in the Arcos Demurrer and that Moving Defendants collectively seek the relief sought in the Arcos Demurrer.

As a preliminary matter, the Court finds that Joinder is sufficient, and that Moving Defendants have therefore collectively asserted that Plaintiff’s claims are time-barred. (See Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-61.)

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) While the allegations of a complaint must be accepted as true for purposes of demurrer, the facts appearing in exhibits attached to the complaint will also be accepted as true, and, if contrary to the allegations in the pleading, will be given precedence. (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1145-46.) A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrers for uncertainty are disfavored. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Id.)

As a preliminary matter, there is no cause of action in California for unjust enrichment. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) The Court therefore SUSTAINS the Demurrers to the ninth cause of action without leave to amend.

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. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) For the bar of the statute of limitations to be properly raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint. (Id. at 1315-16.) To determine whether the statute of limitations bars a complaint, the court analyzes: (1) which statute of limitations governs the plaintiff’s claims; and (2) when the cause of action began to accrue. (Id. at 1316.)

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.)

Moving Defendants contend that Plaintiff’s medical malpractice claim is barred by the statute of limitations set forth in CCP section 340.5 and the remainder of the claims alleged in the FAC are likewise time-barred because they all arise out of the same conduct as the medical malpractice claim.

The Court agrees that Plaintiff’s medical malpractice claim is time-barred on its face. Plaintiff was aware of his injury by February 20, 2020 at the very latest, but did not file this action until January 31, 2022. Even considering the tolling provisions of CRC, Emergency Rule 9 and CCP section 364, Plaintiff failed to timely assert a claim based on professional negligence after he became aware of his alleged injury. There does not appear to be a reasonable possibility that Plaintiff will be able to plead around this defect in an amended pleading. The Court therefore SUSTAINS the Demurrers to the seventh cause of action without leave to amend. (See Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 746.)

CCP section 340.5, which is part of the Medical Injury Compensation Reform Act (“MICRA”), limits its applicability to actions based upon the professional negligence of a health care provider. (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 346.) Each provision includes the same definition of the phrase professional negligence: “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death... .” (Id. at 346-47.) Despite the apparent clarity of this definition, applying it may pose difficulties because additional claims often arise out of the same facts that support a professional negligence claim, including claims for battery, products liability, premise liability, fraud, breach of contract, and intentional or negligent infliction of emotional distress. (Id. at 347.) Indeed, because acts supporting a negligence cause of action might also support a cause of action for an intentional tort, the Supreme Court has not limited application of MICRA provisions to causes of action that are based solely on a negligent act or omission as provided in MICRA's definition of professional negligence. (Id.)

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. (Id.) 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 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.)

The FAC alleges numerous causes of action, arising in both negligence and tort, against numerous parties. The specific factual allegations of the FAC are sparse yet repetitive, and as alleged, it is unclear whether the majority of Plaintiff’s claims arise out of the alleged medical malpractice or are based on facts which are distinct from Moving Defendants’ allegedly negligent act in the performance of medical services. This lack of clarity renders the remainder of Plaintiff’s claims ambiguous.

This ambiguity is particularly glaring in the causes of action which sound in negligence, but also extends to the tort claims. Claims sounding in fraud must be pleaded with specificity, and the FAC fails to allege sufficiently specific facts to allege misrepresentation against Moving Defendants individually or collectively. (See Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472.) The factual allegations are also insufficient to ascertain a basis for an intentional infliction of emotional distress claim. (See Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.) Further, the subject of the conversion claim appears to be money, but the FAC does not allege an identifiable sum, and the FAC’s overall ambiguity extends to the alleged “wrongfulness” of Moving Defendants’ conduct. (See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491; Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 233-34.).

The Court therefore SUSTAINS the Demurrers to the first through sixth, eighth, and tenth causes of action second with 20 days leave to amend. If Plaintiff files an amended pleading that is successfully challenged by an ensuing demurrer, the Court will consider denying Plaintiff further leave to amend.

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.

[1] The Court refers to the Demurrer and the Arcos Demurrer collectively as the “Demurrers.”

[2] Moving Defendants’ collective Demurrer does raise arguments concerning the timeliness of Plaintiff’s claims.