Judge: John J. Kralik, Case: 24NNCV06547, Date: 2025-03-14 Tentative Ruling
Case Number: 24NNCV06547 Hearing Date: March 14, 2025 Dept: NCB
North
Central District
|
anna griffard, Plaintiff, v. comfort care
dental, inc., et
al., Defendants. |
Case No.: 24NNCV06547 Hearing Date: March 14, 2025 [TENTATIVE]
order RE: demurrer |
BACKGROUND
A.
Allegations
Plaintiff Anna Griffard (“Plaintiff”) alleges
that on April 6, 2023, she visited Defendant Comfort Care Dental, Inc. (“CCD”),
Dr. Tom Varujan Shanakian, and Dr. Robert Tingilian, and underwent dental
procedures at their office. Plaintiff
alleges that during her April 6, 2023 visit, Dr. Shanakian and his staff
removed a wisdom tooth, but Dr. Shanakian lost his grip and forced a large
metal device into Plaintiff’s upper jaw and teeth resulting in immediate
injuries and damages, including severe nerve damage and other medical issues.
The complaint, filed December 16, 2024,
alleges causes of action for: (1) dental malpractice/negligence; and (2)
negligent training, retention, supervision, and hiring.
B.
Motion on Calendar
On February 6, 2025, Defendant
Robert Tingilian, DDS (“Dr. Tingilian”) filed a demurrer to the complaint.
On March 7, 2025, Dr. Tingilian
filed a reply brief.
On March 11, 2025, Plaintiff filed
an opposition brief. It appears that
Plaintiff had served the opposition on Dr. Tingilian, such he was able
to prepare and file a reply brief with the Court. It was not until after the reply was filed
that Plaintiff (a self-represented litigant) filed the opposition papers
with the Court.
DISCUSSION
Dr.
Tingilian demurs to the entirety of the complaint as barred by the one-year
statute of limitations, pursuant to CCP § 340.5.
CCP § 340.5 states 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. In no event
shall the time for commencement of legal action exceed three years unless
tolled for any of the following: (1) upon proof of fraud, (2) intentional
concealment, or (3) the presence of a foreign body, which has no therapeutic or
diagnostic purpose or effect, in the person of the injured person.
(CCP § 340.5.)
CCP § 364(d) states: “If the notice [of
intention to commence an action against a health care provider for professional
negligence] is served within 90 days of the expiration of the applicable
statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the
notice.”
Dr.
Tingilian argues that the complaint alleges an injury that occurred on April 6,
2023, but the complaint was filed on December 16, 2024, which is over a year
from when the alleged injury occurred. He
acknowledges that Plaintiff sent him a notice of intention to sue letter (which
was not attached to the complaint), and argues that even if considering the
90-day tolling/extension period, the action was filed more than 1 year and 90
days after the alleged incident occurred.
In
the complaint, Plaintiff alleges: “On or about April 6, 2023, as plaintiff
was at her dental visit receiving dental treatment at Comfort Care Dental from
Dr. Shanakian and his staff to remove a wisdom tooth, Dr. Shanakian lost his
grip and forced a large metal device into plaintiff’s upper jaw and teeth resulting
in immediate injuries and damages including, but not limited to, severe nerve
damage and other medical issues.”
(Compl., ¶12 [emphasis added].)
Based on the allegations of the
complaint, it appears that Plaintiff’s action is time-barred as she alleges she
presented at CCD for a dental procedure on April 6, 2023 and experienced
immediate injuries and damages to her upper jaw and teeth. Taking into account 1 year from the date of
the incident, plus 90 days for tolling, Plaintiff should have filed her action
by latest July 5, 2024. However, she
filed the action on December 16, 2024.
In opposition, Plaintiff argues that
at her April 6, 2023 visit, Dr. Shanakian lost his grip on the dental forceps,
resulting in her teeth becoming fractured and resulting in vascular nerve
compression of trigeminal nerve, and that she diligently tried to discover the
facts of her injury for the next 6 visits over a 16-month period from April 6,
2023 to July 5, 2024. (Opp. at
p.4.) She argues that she complained of
pain at every visit but was provided with fraudulent misrepresentations each
time, thus delaying the discovery of her injuries. (Id.)
She argues that she did not discover the injury until August 19, 2024
when she visited an endodontist. (Id.
at p.5.)
Plaintiff’s opposition brief
includes extrinsic facts that were not alleged in the complaint. The demurrer tests the pleading alone and not
the evidence or other extrinsic matters which do not appear on the face of the
pleading or cannot be properly inferred from the factual allegations of the
complaint. (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983)
145 Cal.App.3d 496, 499.) Plaintiff
argues that these facts show that Defendants engaged in fraudulent concealment
such that the delayed discovery rule applies.
However, even by Plaintiff’s own opposition arguments, she was aware of
her injury on April 6, 2023 when the forceps hit her mouth and impacted her
teeth, which resulted in her making 6 additional visits. Nevertheless, the Court will allow Plaintiff
one opportunity to amend the complaint to allege facts supporting fraudulent
concealment or facts to show that her action is not barred by the statute of
limitations.
CONCLUSION AND
ORDER
Defendant Robert
Tingilian, DDS’s demurrer to the complaint is sustained with 20 days leave to
amend.
Defendant shall
provide notice of this order.
DATED: March 14, 2025 ___________________________
John
J. Kralik
Judge
of the Superior Court