Judge Lynette Gridiron Winston, Case Number: 24PSCV01171, Date: 2024-10-14 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 24PSCV01171, Date: 2024-10-14 Tentative Ruling

Case Number: 24PSCV01171 Hearing Date: October 14, 2024 Dept: 6

CASE NAME: Maria Munguia aka Nena Munguia v. St. Judge Heritage Medical Group, et al.

Defendants Eric Joo-Hyung Lee, M.D. and Yoko Takashima Bean, M.D.’s Demurrer to Plaintiff Maria Munguia’s First Amended Complaint

TENTATIVE RULING

The Court OVERRULES the demurrer of Defendants Eric Joo-Hyung Lee, M.D. and Yoko Takashima Bean to Plaintiff Maria Mungia’s First Amended Complaint. Defendants Eric Joo-Hyung Lee, M.D. and Yoko Takashima Bean must file an answer to the First Amended Complaint within 20 days of the Court’s order.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a medical malpractice action. On April 12, 2024, plaintiff Maria Munguia aka Nena Munguia (Plaintiff) filed this action against defendants St. Jude Heritage Medical Group (St. Jude), Thomas Clayton Hughes, M.D. (Hughes), Eric Joo-Hyung Lee, M.D. (Lee), Yoko Takashima Bean, M.D. (Bean) (collectively, Defendants), alleging the sole cause of action for medical negligence. On August 13, 2024, Plaintiff filed the operative First Amended Complaint (FAC), alleging the same cause of action against the same Defendants. On September 9, 2024, Hughes answered the FAC.

On September 12, 2024, Lee and Bean (collectively, Moving Parties) demurred to the FAC. On October 1, 2024, Plaintiff opposed the demurrer. On October 7, 2024, Moving Parties replied.

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 (Donabedian).) 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. at pp. 993-994.)

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 pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); 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, 1046-1047.)

DISCUSSION

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), Moving Parties were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Moving Parties’ efforts to meet and confer sufficient. (Lee Decl., ¶ 4.)

First Cause of Action – Medical Negligence

To state a cause of action for medical negligence, the plaintiff must allege facts demonstrating, “’(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.’ [Citation.]” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 238.)

“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.” (Code Civ. Proc., § 340.5, subd. (a).)

“One of the primary functions of the demurrer is to filter out actions which lack substantial basis without the time and labor of trial. Where the complaint discloses that the statute of limitations bars the action, the general demurrer has long been held an appropriate means to assert such a facial defect. [Citations.]” (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) “While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer. [Citations.]” (United W. Med. Centers v. Superior Ct. (1996) 42 Cal.App.4th 500, 505, italics added.)

Moving Parties demur to the First Cause of Action for medical negligence on the grounds that it fails to state a cause of action because it is barred by the statute of limitations. Moving Parties contend Plaintiff was on inquiry notice by March 13, 2023, when she had surgery for cancer and became aware that she had cancer possibly due to the alleged failures of Moving Parties and other physicians to diagnose Plaintiff’s cancer, but Plaintiff did not file this action until more than one year later on April 12, 2024. Moving Parties contend that Plaintiff’s claim she did not discover the results from the June 4, 2021 ultrasound until May 16, 2023, does not reset the statute of limitations. Moving Parties contend that before May 16, 2023, Plaintiff underwent multiple surgeries and had been diagnosed with cancer, so she knew she had cancer by that time. Moving Parties contend it is implausible Plaintiff would not have been aware given the pathology report from January 25, 2023, which revealed cancer in Plaintiff’s right ovary, the same ovary which had been visualized during the earlier ultrasound.

Moving Parties also contend that Plaintiff continued to receive treatment at St. Jude following the June 4, 2021 ultrasound, so she had multiple opportunities to inquire, especially during the period between January 25, 2023 and May 13, 2023, in which Plaintiff received treatments. Moving Parties contend it is unreasonable that information regarding the prior ultrasound test results would not have been communicated to Plaintiff during this time period. Moving Parties also contend that the FAC only alleges having served the notice of intent to commence action under Code of Civil Procedure section 364 on St. Jude, and that there is no allegation of the notice of intent having been served on Moving Parties.

In opposition, Plaintiff contends her claim is timely and subject to the delayed discovery rule. Plaintiff contends that the FAC alleges Plaintiff did not know the results of her June 4, 2021 ultrasound until speaking with her primary care physician on May 16, 2023, and therefore did not suspect any wrongdoing regarding before then. Plaintiff contends she had no reason to suspect Moving Parties were at fault until she learned about a test result that her cancer may have developed two years earlier and that a diagnostic test two years early may have showed the cancer. Plaintiff also contends merely learning of the cancer diagnosis is insufficient to put her on notice of her doctors’ negligence. Plaintiff further contends the demurrer improperly assumes Plaintiff was aware that her right ovary was visualized in the June 4, 2021 ultrasound, and that a healthcare provider informed her of her ultrasound report before her May 16, 2023 appointment.

The Court does not find the FAC alleges facts clearly demonstrating Plaintiff’s claim is time-barred. Whether a cause of action is barred by the statute of limitations is usually a question of fact, which is generally not suitable for demurrer. (Carloss v. Cnty. of Alameda (2015) 242 Cal.App.4th 116, 123; M.F. v. Pac. Pearl Hotel Mgmt. LLC (2017) 16 Cal.App.5th 693, 703.) The FAC alleges that Plaintiff learned of her cancer diagnosis on January 25, 2023. (FAC, ¶ 15.) The FAC then alleges Plaintiff underwent surgery for her cancer on March 13, 2024, and that she subsequently received chemotherapy and radiation therapy. (FAC, ¶ 16.) The Court agrees with Plaintiff that merely being diagnosed with cancer and undergoing surgery by themselves do not clearly show that Plaintiff knew or had reason to suspect Moving Parties’ alleged failures with respect to the June 4, 2021 ultrasound. The clearest demonstration of Plaintiff’s discovery of these alleged failures is when Plaintiff’s primary care physician purportedly advised her on May 16, 2023, of the results of her June 4, 2021 ultrasound, which showed an ovarian cyst. (FAC, ¶ 17.)

The Court also agrees with Plaintiff that Moving Parties are improperly assuming Plaintiff must have talked with other physicians at St. Jude during the period in question that would have apprised her of Moving Parties’ purported negligence, as there is nothing in the FAC alleging any facts to support that inference. (See FAC, ¶¶ 8-19; Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Donabedian, supra, 116 Cal.App.4th at p. 994; see also Code Civ. Proc., § 452 [“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”]) Additionally, regarding service of the notice of intent to commence action per Code of Civil Procedure section 364, Moving Parties did not cite any authority, nor is the Court aware of any authority, that requires the complaint to allege such compliance. Thus, whether Plaintiff alleged compliance with Code of Civil Procedure section 364 as it pertains to Moving Parties is ultimately not dispositive for purposes of this demurrer.

Based on the foregoing, the Court OVERRULES the demurrer.

CONCLUSION

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.