Judge: Richard S. Whitney, Case: 37-2022-00043627-CU-PO-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00043627-CU-PO-CTL AKRIDGE VS POWAY HEALTHCARE CENTER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANTS POPLAR HOLDINGS, LLC dba POWAY HEALTHCARE CENTER AND PLUM HEALTHCARE GROUP, LLC'S DEMURRER TO PLAINTIFF'S COMPLAINT is OVERRULED.

Defendants POPLAR HOLDINGS, LLC dba POWAY HEALTHCARE CENTER and PLUM HEALTHCARE GROUP, LLC ('Defendants') demur to the second cause of action in Plaintiff SUE AKRIDGE, individually and as successor in interest to decedent, GEORGIA McWILLIAMS's ('Decedent') ('Plaintiff') complaint as being barred by the statute of limitations and uncertain. It is undisputed CCP section 340.5 is the applicable statute of limitations as to the second cause of action.

'We 'accept as true not only those facts alleged in the complaint but also facts that may be implied or inferred from those expressly alleged.'' (Munoz v. Patel (2022) 81 Cal.App.5th 761, 771.) ' ' 'Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' ' ' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) 'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] 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.' (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232 [Citation and quotes omitted].) 'This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense.' (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.) CCP section 340.5 provides, in 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...

(Code Civ. Proc., § 340.5.) Under Code of Civil Procedure section 340.5's discovery rule, 'the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing ....' (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110 [245 Cal.Rptr. 658, 751 P.2d 923]; see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398 [87 Cal.Rptr.2d 453, 981 P.2d 79].) This rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. (Jolly v. Eli Lilly & Co., Calendar No.: Event ID:  TENTATIVE RULINGS

2963526  64 CASE NUMBER: CASE TITLE:  AKRIDGE VS POWAY HEALTHCARE CENTER [IMAGED]  37-2022-00043627-CU-PO-CTL supra, 44 Cal.3d at p. 1110.) The first to occur under these two tests begins the limitations period.

(Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.) Here, Plaintiff alleges: There is a delayed accrual of Plaintiff's claim due to the fact that Plaintiff did not know of, nor in the exercise of reasonable diligence could have discovered that Defendants' staff's neglect and negligent acts and omissions caused Decedent's injuries and eventual death until after Plaintiff's attorney first spoke with an attorney about her mom's injuries that she suffered at POWAY on or about October 13, 2022. Plaintiff performed a reasonable investigation into the cause of her mother's injury and death, however, none of Ms. McWilliams' medical providers were able to answer Plaintiffs questions as to what caused her mother's bedsore, falls and death on November 12, 2020.... Here, Plaintiff could not have discovered all necessary facts essential to her causes of action until after first speaking with her attorney on or about October 13, 2022.

(Complaint, ¶ 60.) Defendants cite Carrillo v. County of Santa Clara (2023) 89 Cal.App.5th 227 for support. The trial court, with whom the Court of Appeal agreed, stated: the 'FAC's allegations make clear that Plaintiff actually believed by the end of December 2017 that his injury ... was caused by the nurse's popping of the blister on his foot, satisfying the subjective test for triggering the one-year statute of limitations under CCP 340.5' and because the 'FAC's allegations also satisfy the objective test for triggering the one-year statute of limitations, as a reasonable person suffering Plaintiff's injury would have suspected by the end of December 2017 that medical care provided by the nurse before the infection developed had something to do with the injury and that reasonable person would have been on inquiry notice by the end of December 2017.' (Id. at 231–232.) Here, the Court cannot conclude that Plaintiff clearly believed that some conduct on the part of Defendants' staff caused Decedent's injuries and/or death. Rather, Plaintiff alleges she inquired and did not receive an answer about 'what caused her mother's bedsore, falls and death on November 12, 2020.' Reading the allegations as a whole does not support that the subjective test of CCP section 340.5, as a matter of law, has been satisfied.

Defendants contend the allegations of delayed discovery are insufficient.

In order to rely on the discovery rule for delayed accrual of a cause of action, '[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, 86 Cal.Rptr.2d 645.) In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to 'show diligence'; 'conclusory allegations will not withstand demurrer.' (Ibid.) (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light.

(Id. at 808–809.) Calendar No.: Event ID:  TENTATIVE RULINGS

2963526  64 CASE NUMBER: CASE TITLE:  AKRIDGE VS POWAY HEALTHCARE CENTER [IMAGED]  37-2022-00043627-CU-PO-CTL The Court finds Plaintiff's allegations are sufficient as to delayed discovery. Plaintiff alleges she 'performed a reasonable investigation into the cause of her mother's injury and death, however, none of Ms. McWilliams' medical providers were able to answer Plaintiff's questions as to what caused her mother's bedsore, falls and death on November 12, 2020.' (Complaint, ¶ 60.) While it may be possible that further discovery will reveal that Plaintiff had good reason to be suspicious enough after speaking with the staff to continue investigating, the Court cannot conclude that Plaintiff's actions were objectively unreasonable under the circumstances alleged. Plaintiff could have spoken to the attorney 'just in case' to ask if anything could be done even where the causes of the bedsore, falls and death were unknown.

The demurrer overruled.

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