Judge: Teresa A. Beaudet, Case: 22STCV22757, Date: 2023-08-07 Tentative Ruling

Case Number: 22STCV22757    Hearing Date: December 21, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

            Plaintiff Joseph Vincent Ruiz, in pro per (“Plaintiff”) filed this action on July 15, 2022 against Defendant Menyoli Michael Malafa, M.D. Plaintiff filed the operative First Amended Complaint (“FAC”) on August 1, 2022 against Defendants Menyoli Michael Malafa, M.D., Luigi F. Galloni, M.D. (“Galloni”), and Galloni Enterprises Medical Corporation (“Galloni Enterprises”). The FAC alleges one cause of action for medical negligence. 

Galloni and Galloni Enterprises (jointly, the “Galloni Defendants”) now demur to Plaintiff’s sole cause of action for medical negligence. The Galloni Defendants also move to strike portions of the FAC. No opposition to the demurrer or motion to strike was filed.

Request for Judicial Notice

            The Court grants the Galloni Defendants’ request for judicial notice of California Rules of Court, Emergency rule 9. The Court notes that the Galloni Defendants do not attach the referenced “Circulating Order No. CO-20-09 adopted by the Judicial Council of California on May 29, 2020” such that it is unclear what specific Order the Galloni Defendants seek judicial notice of. Thus, the Court denies the Galloni Defendants’ request for judicial notice as to this item.

            The Court grants the Galloni Defendants’ request for judicial notice that “90 days before March 30, 2022, was December 30, 2021” and that “2 days after March 30, 2022, is April 1, 2022.” The Court denies the Galloni Defendants’ request for judicial notice “[t]hat there are 366 days from March 30, 2021 to March 30, 2022.”

Demurrer

A.    Legal Standard

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

B.     Allegations of the FAC

In the FAC, Plaintiff alleges that he fell and injured his right index finger in early July 2019. (FAC, ¶ 10.) Plaintiff waited two to three days to seek medical care, which he ultimately did at “BHC.” (FAC, ¶ 10.) BHC assigned Plaintiff to Malafa of Galloni Enterprises. (FAC, ¶ 10.) The injury was diagnosed as a right index finger bone fracture. (FAC, ¶ 10.) 

On July 11, 2019, Malafa performed surgery on Plaintiff’s finger, inserting two pins into the finger, that reached from the tip to the base. (FAC, ¶ 11.) Within days of the surgery, Plaintiff told Malafa that he was concerned that his finger was infected. (FAC, ¶ 12.) Plaintiff’s finger was red, swollen, and oozing fluid, and Plaintiff was in extreme pain. (FAC, ¶ 12.) Malafa assured Plaintiff that the reaction was normal, and that the bone was reacting to the pins. (FAC, ¶ 13.) Malafa never gave Plaintiff any antibiotics or pain medications. (FAC, ¶ 13.)

In or about late August 2019, Malafa removed the pins. (FAC, ¶ 14.) Malafa said that Plaintiff’s finger was infected and that he would prescribe oral antibiotics and pain medication, but he did not before the end of that visit. (FAC, ¶ 14.) Plaintiff went back to Galloni Enterprises the next day (Friday) for the prescriptions, but was told that Malafa had not left any prescriptions and that they could not help Plaintiff. (FAC, ¶ 14.) Plaintiff came back to Galloni Enterprises the following Monday and was told that Malafa had gone on vacation. (FAC, ¶ 14.) Galloni told Plaintiff that he “did not want to touch Plaintiff’s finger or he would end up being responsible for it.” (FAC, ¶ 14.) Plaintiff alleges that he “never saw Defendant Malafa again.” (FAC, ¶ 15.)

Plaintiff alleges that “[a]bout a week after Defendant Galloni told Plaintiff that he could not help him, Defendant Galloni summoned Plaintiff to his office and took over care of Plaintiff’s finger. Defendant Galloni insisted Plaintiff immediately be admitted to the hospital, cautioning Plaintiff that he could lose his finger, hand or life if he did not act.” (FAC, ¶ 16.)

Plaintiff was admitted to the emergency room under Galloni’s care. (FAC, ¶ 17.) Plaintiff alleges that “[w]hen Plaintiff was released from the hospital, he had a PICC line inserted, which ultimately resulted in another infection. Nurses visited Plaintiff at home, further infusing him with antibiotics through the PICC line. Ultimately the infection in the finger was cleared, but Plaintiff’s finger and hand were deformed, and he was in constant, excruciating pain.” (FAC, ¶ 19.)

            Plaintiff alleges that “BHC” referred Plaintiff to Dr. Chen, an orthopedic surgeon. (FAC, ¶ 21.) “Dr. Chen advised that Plaintiff either could live with the pain or have the finger amputated.” (FAC, ¶ 21.) “Dr. Chen amputated Plaintiff’s right index finger on March 30, 2021.” (FAC, ¶ 22.) Plaintiff alleges that “[s]ince the accident and surgery, Plaintiff remains in tremendous pain, and does not do much because of the pain, the physical limitations and the depression that has come with the change in his circumstances.” (FAC, ¶ 25.)

C.     First Cause of Action for Medical Negligence

In support of the first cause of action for medical negligence, Plaintiff alleges that “Malafa’s and Defendant Galloni’s conduct did not rise to the level of the standard of care required of an orthopedic surgeon; it was medically negligent.” (FAC, ¶ 28.) Plaintiff alleges that “Malafa’s and Defendant Galloni’s medical negligence was a substantial factor in causing Plaintiff’s harm.” (FAC, ¶ 30.)

In the demurrer, the Galloni Defendants assert that Plaintiff’s first cause of action is barred by the statute of limitations.

As an initial matter, the Galloni Defendants assert that “Plaintiff’s FAC does not relate back to the filing date of the original complaint, and the statute of limitations is applied as of the FAC filing date—August 1, 2022.” (Demurrer at p. 10:5-7.)

The Galloni Defendants cite to Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176, where the Court of Appeal noted that “[t]he general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Internal citations omitted.)

The Woo Court also noted that “[a] further and nonprocedural requirement for application of the section 474 relation-back doctrine is that Zarabi must have been genuinely ignorant of Woo’s identity at the time she filed her original complaint…The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. However, if the plaintiff is actually ignorant of the defendant’s identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff’s negligence.” (Woo v. Superior Court, supra, 75 Cal.App.4th at p. 177 [internal citations omitted].) The Galloni Defendants assert that “[h]ere, Plaintiff has not satisfied the requirements of Code of Civil Procedure § 474 permitting substitution of new defendants for ‘Doe’ defendants in his FAC because Plaintiff was not genuinely ‘ignorant of the name of [the] defendant[s]’ at the time the original complaint was filed on July 15, 2022.” (Demurrer at p. 9:7-10.) The Galloni Defendants note that “Galloni Enterprises” “Dr. Galloni” and are referenced in the original Complaint. (See Compl., ¶¶ 2, 8, 12, 14, 15, 16.)

As set forth above, Plaintiff did not file any opposition to the demurrer and thus does not assert that he was “genuinely ignorant of [the Galloni Defendants’] identity at the time [Plaintiff] filed [his] original complaint.” (Woo v. Superior Court, supra, 75 Cal.App.4th at p. 177.) Plaintiff does not dispute that the FAC does not relate back to the filing date of the original complaint as to the Galloni Defendants, or that the statute of limitations should be applied as of the date the FAC was filed.

The Galloni Defendants assert that Plaintiff’s sole cause of action is barred by Code of Civil Procedure section 340.5, which provides in pertinent part that “[i]n 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.”

The Galloni Defendants also cite to Code of Civil Procedure section 364, which provides that “[n]o action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” (Code Civ. Proc., § 364, subd. (a).) Pursuant to Code of Civil Procedure section 364, subdivision (d), “[i]f the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” In the FAC, Plaintiff alleges that “Defendants were timely served with a Notice of Intent to Sue for Medical Negligence.” (FAC, ¶ 9.)

In the demurrer, the Galloni Defendants assert that “as Plaintiff alleges that his right index finger was amputated on March 30, 2021, the statute of limitations began to run on that date, and the last date for Plaintiff to file suit—absent effective service of a notice of intent to sue within the final 90 days of the limitations period—was March 30, 2022.” (Demurrer at p. 11:9-12.) The Galloni Defendants assert that “the last 90 days of the limitations period would have begun on December 30, 2021. As a result, Plaintiff would have had to serve his notice of intent to sue between December 30, 2021, and March 30, 2022, to effectively toll the limitations period by 90 days. This was not done. Therefore, the statute of limitations expired on March 30, 2022.” (Demurrer at p. 11:14-17.) The Galloni Defendants assert that Plaintiff served his notice of intent to sue on April 1, 2022. The Court notes that the Galloni Defendants appear to rely on evidence in support of this assertion (Deane Decl., ¶ 3, Ex. A), as opposed to any allegation of the FAC. The Galloni Defendants do not cite any legal authority demonstrating that this is appropriate at the demurrer stage. The Court notes that “[t]he purpose of a demurrer is to test the legal sufficiency of a pleading, not to test the¿evidence or other extrinsic matters.” (McHugh v. Howard (1958) 165 Cal.App.2d 169, 173-174.) 

The Galloni Defendants also assert that Plaintiff discovered his injury on March 30, 2021. As set forth above, Plaintiff alleges that “Dr. Chen amputated Plaintiff’s right index finger on March 30, 2021.” (FAC, ¶ 22.) As also discussed above, Code of Civil Procedure section 340.5 provides in pertinent part that “[i]n 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.”

The Galloni Defendants assert that “the Code of Civil Procedure § 340.5 one-year time period began to run on March 30, 2021. Plaintiff did not file his original complaint, including a single cause of action for Medical Negligence, until July 15, 2022. Moreover, Plaintiff did not file his FAC for Medical Negligence until August 1, 2022. Therefore, Plaintiff’s FAC, and its sole cause of action for Medical Negligence, are barred by Code of Civil Procedure § 340.5.” (Demurrer at p. 12:27-13:3.)

As set forth above, Plaintiff did not file any opposition to the demurrer, and thus does not dispute the Galloni Defendants’ assertion that Plaintiff’s sole cause of action is time-barred. In addition, even if the one-year statute of limitations set forth in Code of Civil Procedure section 340.5 was extended by 90 days pursuant to Code of Civil Procedure section 364, 90 days after March 30, 2022 is June 28, 2022. As discussed, the original Complaint was not filed until July 15, 2022. In addition, the Galloni Defendants were first named as defendants in the FAC, which was filed on August 1, 2022. As discussed, Plaintiff does not dispute the Galloni Defendants’ assertion that the FAC does not relate back to the filing of the original Complaint.

In light of the foregoing, the Court sustains the Galloni Defendants’ demurrer to Plaintiff’s first cause of action for medical negligence.

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Motion to Strike

A court may strike any “¿irrelevant, false, or improper matter inserted in any pleading¿” or all or any part of a pleading “¿not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿” (¿Code Civ. Proc., § 436¿.) “¿The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.¿” (¿Code Civ. Proc., § 437¿.)¿¿ 

The Galloni Defendants move to strike portions of the FAC. (See Notice of Motion at p. 2:6-17.) Because the Court sustains the Galloni Defendants’ demurrer to the sole cause of action of the FAC, the Court denies the Galloni Defendants’ motion to strike as moot.¿ 

Conclusion  

Based on the foregoing, the Galloni Defendants’ demurrer to the first cause of action for medical negligence is sustained, with leave to amend. The Galloni Defendants’ motion to strike is denied as moot.  

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this order. ¿ 

The Galloni Defendants are ordered to give notice of this order.   

DATED:  December 21, 2023                        ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court