Judge: John C. Gastelum, Case: 22-01249542, Date: 2023-12-07 Tentative Ruling

Motion for Summary Judgment and/or SAI

Tentative Ruling:  Defendants Noreen N. Tran, D.D.S. and All Brite Dental’s requests for judicial notice is GRANTED.

Defendants’ evidentiary objection to Plaintiff’s declaration:  (1-3) Overruled

Defendant’s evidentiary objection to Ivan Cisneros’s declaration:  (1-3) Sustained

Defendants’ motion for summary adjudication is GRANTED.

A defendant can satisfy his initial burden of proof on summary judgment by showing a complete defense to the plaintiff’s cause of action, e.g., it is barred by the statute of limitations.  (Code Civ. Proc., § 437c(p)(2); Selvidge v. Tang (2018) 20 Cal.App.5th 1279, 1283.)  If the defendant makes a sufficient showing, the burden shifts to the plaintiff to produce sufficient evidence to raise a triable issue of fact as to the defense asserted.  (Code Civ. Proc., § 437c(p)(2).)

“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.” (Code Civ. Proc., § 340.5 (MICRA).) 

“The term ‘injury’ for purposes of section 340.5 ‘ “refer[s] to the damaging effect of the alleged wrongful act and not to the act itself.” [Citation.] The injury is not necessarily the ultimate harm suffered, but instead occurs at “the point at which ‘appreciable harm’ [is] first manifested.” ’ [Citation.] An injury manifests when damage is ‘evidenced in some significant fashion; when the damage has clearly surfaced and is noticeable.’ [Citation.]… 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.’ [Citation.] The plaintiff ‘need not be aware of either the specific facts or the actual negligent cause of the injury. [Citation.] If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated.’ [Citation.]” (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 779.) 

“As to the one-year limitations period, MICRA ‘sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing.’ [Citation.]”  (Carrillo v. County of Santa Clara (2023) 89 Cal.App.5th 227, 232.)  “The first to occur under these two tests begins the limitations period.” (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.)

Under the subjective test, the plaintiff need only suspect someone has done something wrong, which does not require the plaintiff to know the specific facts (e.g., medical cause, diagnosis) necessary to establish a medical negligence claim. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398; Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.)  A plaintiff has presumptive knowledge of the negligent injury once he has “ ‘notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation.’ ” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.)

“While the reasonableness of a delayed discovery is ordinarily a question of fact, the issue presents a question of law when the evidence establishes beyond dispute that the plaintiff has failed to bring the action within one year after notice of its existence. [Citations.]”  (Graham v. Hansen (1982) 128 Cal.App.3d 965, 972; see Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1188-1189.)

Here, the parties do not dispute that:  (1) Plaintiff treated with Defendants on October 12, 2020, October 16, 2020, November 5, 2020, and November 23, 2020, during which a bridge and temporary veneers were placed, and she did not return for permanent veneers; (2) after Plaintiff’s last visit with Defendants, she began having “a lot of sensitivity” to her teeth immediately afterwards and that she believed the sensitivity she experienced was “not normal”; (3) Plaintiff never had issues with teeth sensitivity before she had temporary veneers placed by Defendants; (4) Plaintiff claims that the sensitivity was the result of something that Defendant Tran did; (5) also after the last visit, Plaintiff immediately began experiencing numbness in the top middle portion of her mouth from corner to corner; (6) Plaintiff never had experienced the type of numbness she began to experience after her last visit with Defendants; (7) on November 24, 2020, Plaintiff went to Dr. Ngo at Harbour Dental; (8) she went to Harbour Dental to compare the “damage” to her teeth; (9) Plaintiff’s temporary veneers had broken and she began experiencing “a lot” of pain.  [Opp. SS, UF 4-6, 8-10, 14-21, 25; 28-30]

Defendants argue the statute of limitation began to run no later than November 24, 2020 and her single cause of action for medical negligence is barred because she did not file her complaint until March 11, 2022.

Plaintiff argues there is a triable issue of fact as to when the statute of limitations began.  She asserts it was not until her initial consultation with Dr. Tahir Khan on December 19, 2020 that she discovered Defendants had committed medical malpractice.  On that date, Dr. Khan informed Plaintiff that Defendants had over-reduced her 9 and 10 teeth such that veneers were no longer a possibility and she would have to go with crowns instead.  Plaintiff served her notice of intent to commence action on December 13, 2021 on Defendants.  Under Code of Civil Procedure section 364(d), that notice extended her time to file her complaint by 90 days and Plaintiff timely filed her complaint on March 11, 2022.

Plaintiff filed two declarations and submitted additional material facts to show:  (1) After Plaintiff’s final visit with Defendants, she began feeling sensitivity in her teeth but figured it was a result of the treatment provided and caused by the veneer implantation process; (2) after several sessions with Defendants, Plaintiff grew dissatisfied and was not “secure” in the quality of treatments she was receiving so with the help of her son, she sought an estimate from Dr. Ngo on November 24, 2020 to repair a broken temporary veneer; (3) Plaintiff opted not to proceed at Harbour Dental because of the cost; (4) on December 19, 2020, Plaintiff went to Dr. Tahir Khan; (5) during that visit, Plaintiff discovered that Defendants had committed medical malpractice; (6) Dr. Khan told her that, due to over-reduction of her 9 and 10 teeth, veneers were no longer a possibility and she would have to go with crowns instead; and (7) Plaintiff served an intent to commence legal action on Defendants on December 13, 2021.  [Opp. SS, Add. UF 36-38, 40]

Plaintiff’s submission of additional facts and evidence does not change the result.  The undisputed facts show Plaintiff experienced sensitivity she did not believe was normal immediately after her last visit with Defendants on November 23, 2020, sensitivity that she had never experienced before.  Plaintiff claimed the sensitivity she experienced was the result of something Defendant Tran did.  Furthermore, the next day, Plaintiff went to Harbour Dental to compare the damage to her teeth, as her temporary veneers had broken and she began experiencing “a lot” of pain.  Those undisputed facts show that Plaintiff had actual suspicion that her injury was caused by Defendants’ wrongdoing by November 24, 2020.  Plaintiff’s assertion that she did not discover Defendants’ malpractice until her consultation with Dr. Khan on December 19, 2020 does not change the fact that she was aware of the facts on November 23rd and 24th, 2020 that placed her on notice.  Plaintiff did not file her complaint until March 11, 2022.  As such, her sole cause of action for medical negligence is barred by the one-year statute of limitations under Code of Civil Procedure section 340.5.  The motion for summary adjudication is GRANTED.

Defendants shall give notice of ruling.