Judge: Lynette Gridiron Winston, Case: 22PSCV03044, Date: 2023-09-27 Tentative Ruling

Case Number: 22PSCV03044    Hearing Date: September 27, 2023    Dept: 6

CASE NAME: Thomas Weeber v. Emanate Health Intercommunity Hospital, et al.

Defendant Emanate Health’s Demurrer to Plaintiff’s Second Amended Complaint

TENTATIVE RULING
The demurrer of Defendant Emanate Health is SUSTAINED without leave to amend.

Defendant Emanate Health is ordered to give notice and provide proof of service of same within five calendar days.

BACKGROUND
On December 27, 2022, Plaintiff Thomas Weeber (Plaintiff) filed this action against Defendants Emanate Health Intercommunity Hospital, Emanate Health Medical Care Foundation (collectively, Emanate Health) and Does 1 through 100. On July 6, 2023, after the Court sustained a demurrer to the First Amended Complaint (FAC), Plaintiff filed the operative Second Amended Complaint (SAC), alleging the sole cause of action for negligence – medical malpractice.

On August 8, 2023, Defendant Emanate Health filed a demurrer to the SAC. On September 12, 2023, Plaintiff opposed the demurrer. On September 19, 2023, Emanate Health replied.

MEET AND CONFER
The Court finds Defendant’s meet and confer efforts to be sufficient. (Code Civ. Proc., § 430.41, subd. (a); Hayati Decl., ¶¶ 10-12, Exs. A, B.)

LEGAL STANDARD
A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id., 116 Cal.App.4th at p. 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

OBJECTION
The Court OVERRULES Defendant’s objections to the Declaration of Thomas Weeber, as the Court does not rely on that declaration in reaching its decision herein. Such information is outside the scope of a demurrer since it is not contained within the complaint or otherwise subject to judicial notice. (Blank, supra, 39 Cal.3d at p. 318.)

DISCUSSION
Sole Cause of Action for Negligence – Medical Malpractice

To plead a cause of action for medical malpractice, the plaintiff must allege facts showing: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 238 fn.3; Turpin v. Sortini (1982) 31 Cal.3d 220, 229–230.) “In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]’ [Citation.]” (Comm. for Green Foothills v. Santa Clara Cnty. Bd. of Supervisors (2010) 48 Cal.4th 32, 42) [internal citations omitted].

Emanate Health demurs to the SAC on the grounds that it is time-barred under Code of Civil Procedure section 340.5, which reads as follows:

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. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.

(Code Civ. Proc., § 340.5, subd. (a)) [italics added].

Emanate Health contends Plaintiff’s medical malpractice claim is time-barred, as evidenced by the allegations of the SAC. Specifically, Emanate Health contends Plaintiff was aware of his alleged injury on July 15, 2021 or very soon afterwards. (SAC, ¶ 21.) However, Plaintiff did not serve his Notice of Intent to Sue Letter until September 29, 2022, more than 14 months after the alleged incident, (SAC, Ex. A), and did not file the lawsuit until December 27, 2022, more than 17 months after the alleged incident.[1]

In opposition, Plaintiff contends his claim is not time-barred because he alleged in the SAC that he lacked capacity from the time of the incident until approximately January 1, 2022. (SAC, ¶¶ 13-18.) [2] More specifically, Plaintiff alleges he lacked the mental capacity to file suit during that period, and that such lack of mental capacity tolled the statute of limitations based on Code of Civil Procedure section 352, subdivision (a). (SAC, ¶ 13.) Code of Civil Procedure section 352, subdivision (a) provides that, “[i]f a person entitled to bring an action… is, at the time the cause of action accrued either under the age of majority or lacking the legal capacity to make decisions, the time of the disability is not part of the time limited for the commencement of the action.” (Code Civ. Proc., § 352.) The Court disagrees.

Although not raised by Emanate Health in its moving papers or reply, Code of Civil Procedure section 352 does not toll the statute of limitations set forth in Code of Civil Procedure section 340.5. “Section 352, however, is a general tolling statute that is inapplicable to MICRA actions governed by section 340.5. ‘There is no evidence of a legislative intent ... to allow exceptions other than those listed in section 340.5. All indications of intent are to the contrary. The legislative enumeration of certain exceptions by necessary implication excludes all other exceptions. [Citation.]’” (Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 392, quoting Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, 320 and citing Woods v. Young, (1991) 53 Cal.3d 315, 324–325; see also Bennett, supra, 75 Cal.App.4th at p. 392 fn. 5 [“Under section 340.5, the limitations period may be tolled upon proof of fraud, concealment or the presence of a foreign body.”]) As such, Plaintiff’s allegations of incapacity are irrelevant because incapacity is not a permitted basis for tolling Code of Civil Procedure section 340.5. (See Id., at p. 392.) Thus, the Court has no other choice but to conclude that Plaintiff’s claim is time-barred since Plaintiff discovered his alleged injury on July 15, 2021, (see FAC, ¶¶ 13-18), but Plaintiff did not file suit until December 27, 2022, i.e., more than one year after the injury occurred and was discovered.

Plaintiff argues in the opposition that the serving of the Notice of Intent to Sue tolled the statute of limitations for 90 days per Woods. (Opp., pp. 6:26-7:4.) However, the 90-day tolling applies only when the Notice of Intent to Sue is served within the last 90 days of the one-year statute of limitations of Code of Civil Procedure section 340.5. (Woods, supra, 53 Cal.3d at pp. 325-326.) Plaintiff did not serve the Notice of Intent to Sue until September 29, 2022, which was more than one year after the injury occurred on July 15, 2021. (SAC, Ex. A.) Additionally, for the reasons set forth above, Plaintiff’s alleged incapacity did not toll the statute of limitations, so the Notice of Intent to Sue letter was not filed within the last 90 days to trigger any tolling per Woods. Thus, Plaintiff’s Notice of Intent to Sue letter did not toll the statute of limitations for 90 days.

Accordingly, the SAC fails to state a cause of action for medical malpractice on the grounds that it is time-barred under Code of Civil Procedure section 340.5. As it stands, there is no amendment Plaintiff can allege that would resolve the defects contained in the SAC. Therefore, the Court SUSTAINS the demurrer without leave to amend.

CONCLUSION
The Court SUSTAINS the demurrer of Defendant Emanate Health without leave to amend.

Defendant Emanate Health is ordered to give notice and provide proof of service of same within five calendar days.

[1] Defendant also argues that Plaintiff had capacity during the period in question and cites to Plaintiff’s medical records as evidence. (Hayati Decl., ¶14, Ex. C.) However, the Court does not consider this evidence because it is outside the scope of the SAC and cannot be considered in ruling on a demurrer. Notwithstanding, this is ultimately a non-issue given the basis for the Court’s decision herein, and the Court declines to consider Defendant’s arguments regarding Plaintiff’s capacity.

[2] Plaintiff’s opposition argues he lacked mental capacity between July 15, 2021 and March 2022 (Opp., p. 3:18-19, but the SAC clearly alleges the period of his purported incapacity ended on approximately January 1, 2022. (SAC, ¶¶ 13-18.)