Judge: Lee W. Tsao, Case: 23NWCV00212, Date: 2023-10-25 Tentative Ruling

Case Number: 23NWCV00212    Hearing Date: November 9, 2023    Dept: C

PADILLA v. FLORES

CASE NO.:  23NWCV00212

HEARING:  11/09/23

#7

Defendant ESTRELLA FLORES, D.D.S.’s unopposed Demurrer to Plaintiff’s Complaint is SUSTAINED without leave to amend.

Moving Party to give notice.

No Opposition filed as of November 6, 2023.

Defendant ESRELLA FLORES, D.D.S. generally demurs to the only cause of action in the Complaint.

On January 23, 2023, Plaintiff Marcel Padilla (“Plaintiff”) filed this Complaint for Dental Malpractice against Defendants ESTRELLA FLORES, D.D.S, and DOWNEY SMILE CENTER. Plaintiff alleges that Defendant Flores, while working at Downey Smile, negligently broke his tooth while extracting it.

Defendant Flores argues that Plaintiff’s claim is barred by the statute of limitations because the Complaint was filed more than one year after the discovery o the injury. “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.)

Here, Plaintiff alleges that he “Sent a notice of his intention to commence action based upon Defendants[‘] negligence” on January 27, 2021. Thus, it is evident from the face of the Complaint that Plaintiff discovered his injury by January 27, 2021 and had until January 27, 2022 to file his Complaint.

Plaintiff untimely filed his Complaint on January 23, 2023. Therefore, Plaintiff’s Complaint is barred by the statute of limitations.

The unopposed Demurrer is SUSTAINED without leave to amend.