Judge Lynne M. Hobbs, Case Number: 22STCV15814, Date: 2023-09-18 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV15814, Date: 2023-09-18 Tentative Ruling

Case Number: 22STCV15814 Hearing Date: February 21, 2024 Dept: 30

ASHLEY MARTINEZ vs FALCK USA, INC.

TENTATIVE

Defendant’s motion for summary judgment is GRANTED. Plaintiff is permitted to bring a noticed motion seeking leave to amend within 10 days of this order. Moving party is ordered to give notice.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Discussion

As framed by the complaint, this case arises out of Plaintiff’s fall from a gurney while being transported to the hospital.

Defendant moves for summary judgment, or in the alternative, summary adjudication based solely on statute of limitations grounds. Defendant argues this action arises out of medical negligence, which is subject to a one-year statute of limitations. The incident occurred on May 16, 2020, but Plaintiff did not file the complaint until May 12, 2022. Even

if accounting for the tolling of the statute of limitations due to Emergency Rule 9, the case should have been filed at the latest in October of 2021.

A personal injury action generally must be filed within two years of the date of the injury. (Code Civ. Proc., § 335.1.) However, “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.) “‘Professional negligence’ means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (Code Civ. Proc., § 340.5, subd. (2).)

Defendant argues this action is actually for medical malpractice. “The act of operating an ambulance to transport a patient to or from a medical facility is encompassed in the term ‘professional negligence.’” (Canister v. Emergency Ambulance Service (2008) 160 Cal.App.4th 388, 404.) Furthermore, even though Plaintiff’s first cause of action is pleaded as one of gross negligence, the alleged conduct of the medical provider is determinative as to whether the claim is based on negligence or professional negligence. (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514.) In this instance, because Defendant’s employees were transporting Plaintiff to a hospital, their alleged negligent acts would comprise a claim for professional negligence. (Canister, supra, 160 Cal.App.4th at pg. 404.)

Defendant also presents evidence that Plaintiff admitted he discovered his injuries immediately, and thus, the one-year statute of limitations applies. “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 1110.) The term “injury,” as used in California Code of Civil Procedure section 340.5, means both a person’s physical condition and its negligent cause. Thus, once a patient knows, or by reasonable diligence should have known, that he has been harmed through professional negligence, he has one year to bring his suit. The patient is charged with “presumptive” knowledge of his negligent injury, and the statute commences to run, 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, 896-897.) A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for the elements of the cause of action. (Fox v. Ethicon Edo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) “In so using the term ‘elements,’ we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether plaintiffs have reason at least to suspect that a type of wrongdoing has injured them.” (Ibid.) Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, he or she must decide whether to file suit or sit on his or her rights. (Id. at 769.)

During Plaintiff’s January 18, 2023 deposition, Plaintiff testified that he started feeling pain and discomfort immediately after the subject incident. (Martinez Depo., 45:1-13.) The pain resulting from the May 16, 2020 fall became worse approximately one or two weeks later, when he found himself having difficulty sleeping due to the pain. (Id.) On May 21, 2020, the Thursday following the incident, Martinez reported his injuries related to the fall from the gurney to his supervisor Margarita De Jesus. (Id., 41:8-42:4.) Martinez told De Jesus exactly what happened and De Jesus said “Oh my god. That’s just negligence of them to do something like that.” (Id., 41:17-42:7.) Martinez also testified that when he first spoke with Ms. De Jesus, he knew he was injured, since he couldn't move [his] hand in a proper manner." (Id., 42:17-21.)

The Court finds Defendant has met its initial burden of showing this action is governed by Section 340.5 and the one-year statute of limitations because Plaintiff fell from the gurney, which is a circumstance that would put a reasonable person on notice of neglect, and because he stated he felt pain immediately. As such, he discovered his injuries on the date they occurred. The evidence also shows that at the latest, Plaintiff discovered his injury a week later, when he reported his injuries to his supervisor, as he stated his hand could not move in a proper manner, and she told him that this constituted negligence. This put Plaintiff on inquiry notice. The burden shifts to Plaintiff to show a triable issue of fact exists.

Plaintiff argues he was a dependent adult, dependent upon the defendants. Plaintiff was restrained and strapped to the gurney and was not capable of acting in his behalf at the time of the fall. However, Plaintiff cites to the complaint for this assertion. The allegations of the operative complaint alone cannot defeat a motion for summary judgment (Union Bank v. Los Angeles County Superior Court (1995) 31 Cal. App. 4th 573, 589-92.) In his separate statement Plaintiff also cites to his responses to discovery, without citing to any specific portion of the discovery, and without admitting any such discovery. As such, Plaintiff fails to present any evidence for this assertion. Not only that, but the complaint does not allege that Plaintiff was a dependent adult.

As a result, Plaintiff has failed to show a triable issue of material fact exists as to whether he was receiving professional services and does not dispute that he was aware of the injury on the date of the incident. Therefore, the action is governed by the one-year statute of limitations set forth in Section 340.5.

Leave to Amend

“If either party wishes the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, it may request¿leave to amend.” (Bostrom v. County of San Bernardino¿(1995) 35 Cal.App.4th 1654, 1663-64.) “Such requests are routinely and liberally granted.” (Id. at 1664.)

Plaintiff requests leave to amend the complaint in order to allege a cause of action for Dependent Adult Abuse. The Court will allow Plaintiff to bring a noticed motion seeking leave to amend.