Judge Thomas Falls, Case 22PSCV00017 2023-01-10 Tentative Ruling

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Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

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Responding Party: UNOPPOSED as of 01/04 at 8:15 AM (due 14 days before hearing [CCP 437c(b)(2)], which is 12/19/2022; therefore, any opposition would be grossly untimely and not considered).

Defendant Irwindale Industrial Clinic’s MOTION FOR SUMMARY JUDGMENT is GRANTED.

This is a negligence case. Plaintiff Leticia Valdez (“Plaintiff”) alleges the following against Defendants FS Solutions Inc., Defendant Irwindale Industrial Clinic (“Defendant Irwindale”), and Does 1 through 20 (collectively, “Defendants”):[1] Plaintiff worked for Keolis Transit America, Inc. as a bus driver. Keolis asked Plaintiff to take a random drug test. Kelois was under contract and in-privity of contract with Defendants for Defendants to perform drug testing on Keolis’s employees. Despite Plaintiff never using illegal drugs, Plaintiff’s drug test came back positive for cocaine. She was terminated from her position. During the time of the drug test, there was another male at the clinic. Additionally, Plaintiff claims that she was given one urine container, but that the clinic’s employees informed Plaintiff that Plaintiff had two urine containers. Plaintiff’s negligence cause of action against Defendants is based upon her allegation that Defendants failed to “safely manage and process Plaintiff’s urine sample for drug testing.”[2]

On February 23, 2022, Defendant Irwindale Industrial Clinic (“Defendant”) filed a Demurrer with a Motion to Strike, which the court sustained and overruled in part.

On July 8, 2022, Defendant Irwindale filed a demurrer as to the 3^rd cause of action for breach of contract, which the court sustained without leave to amend. Therefore, for purposes of the MSJ, the only two operative causes of action are for (1) General Negligence and (2) NIED.

On October 25, 2022, Defendant Irwindale filed the instant Motion for Summary Judgment.[3]

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

A moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at p. 849.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).)

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; see also Hinesley, supra, 135 Cal.App.4th at p. 294 [The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”].) In determining whether the papers show that there is a triable issue as to any material fact, the court shall consider all of the evidence set forth in the moving papers, except that as to which objections have been made and sustained, and all inferences reasonable deducible from such evidence. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

Defendant moves for summary judgment on Plaintiff’s causes of action for Negligence and Negligent Infliction of Emotional Distress (“NIED”) on the following basis: (1) Medical Negligence is barred by the applicable statute of limitations; (2) the care and treatment rendered complied at all times with the applicable standard of care; (3) that nothing the Defendant did or did not do was, to a reasonable degree of medical probability, the proximate or legal cause of Plaintiff’s injuries; and (4) that Plaintiff cannot meet the elements of the cause of action for NIED, whether plead as “bystander” Negligent Infliction of Emotional Distress or “direct victim” NIED. (Motion p. 2.)

At the outset, Defendant Irwindale argues that Plaintiff’s general negligence cause of action sounds more in Professional Negligence or Medical Negligence because Defendant Irwindale is a medical corporation[4]—a determination of which affects the statute of limitations.

Examples of health care providers include a tissue bank (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145); a medical group comprised of licensed medical practitioners who provide direct medical services to patients (Palmer v. Superior Court (2002) 103 Cal.App.4th 953), a sperm bank (Johnson v. Superior Court (2002) 101 Cal.App.4th 869); and an entity governed by a group of representative physicians (Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 942.)

Here Defendant Irwindale offers the following evidence to support its contention that it is a health care provider:

i. Irwindale Industrial Medical Clinic is (1) a privately owned occupational healthcare practice and

ii. In April 2020, Irwindale Industrial Medical Clinic specialized in occupational medicine which included many aspects of patient treatment and evaluation, including random urine drug testing for municipalities and their corporate partners such as Keolis Transit America, Inc. (“Keolis”).

Effectively, the declaration Dr. Jack Feldsher, who was the Medical Director and co-owner of Irwindale Industrial Medical Clinic, supports a finding that Defendant was a medical group comprised of licensed medical practitioners who provide direct medical services to patients such that it is a health care provider.

Accordingly, as a health care provider, the court agrees that Plaintiff’s first cause of action entitled “General Negligence” to more properly be a cause of action for “Professional Negligence” or “Medical Negligence.”

CCP section 340.5 sets forth the applicable statute of limitations when a plaintiff files suit against a health care provider based upon its alleged professional negligence. The statute provides that “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.” As for the definition of professional negligence, it “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 (2).)

Here, the professional medical services rendered by Defendant occurred on April 28, 2020. (FAC ¶10.) On May 6, 2020, she was terminated from her job for the positive drug test. (FAC ¶14.) Accordingly, it is on May 6, 2020 that Plaintiff discovered, or through the use of reasonable diligence should have discovered, that she had been harmed by Defendant Irwindale’s purported negligence. After all, Plaintiff claims she does not use narcotics and she alleges various facts about the day of to argue that there was a mix-up in the samples such that the positive result would have been the result of negligence. One year from May 6, 2020 is May 6, 2021. However, Plaintiff did not file suit until January 10, 2022. Not only does the untimely filing render her negligence cause of action time barred, but also the NIED cause of action as that too is predicated upon professional negligence.

Therefore, as Plaintiff filed an untimely complaint, the court agrees with Defendant that her entire action is time barred.

[1] As explained in the MSJ, the sample was picked up by Lab Corp and provided to co-defendant FS Solutions, Inc., a private corporation separate and distinct from Defendant, which contracted with the Department of Transportation to medically review drug tests. (Motion p. 1.)

[2] Though not clear from the face of the complaint, the basis of Plaintiff’s action is that there was a mix-up in the samples between hers and another individual at the clinic.

[3] The motion is only for summary judgment, not summary adjudication.

[4] (See Motion p. 8 [“For the reasons set forth, the court must find that for purposes of the facts alleged in Plaintiff’s operative First Amended Complaint, Defendant was a medical corporation providing regular medical services to its patient population, including Plaintiff.”]) (emphasis added).

[5] Here, the only definition at issue is whether Defendant Irwindale is “any person licensed or certified pursuant to Division 2” because Defendant has not argued that it is a clinic, health dispensary, or health facility nor are there allegations that Defendant is an osteopath or a chiropractor.