Case Name: Robert Maura v. Prince G. Daniels, D.D.S., et al.
Case No.: 2015-1-CV-279322

This is an action for alleged Medical (Dental) Malpractice arising out of the removal of a wisdom tooth. The original (form) complaint was filed on April 13, 2015. The operative First Amended Complaint (“FAC”), also a form complaint, was filed on September 14, 2015. It states a single cause of action for Medical Malpractice/Personal Injury. The narrative attachment states in pertinent part that “[o]n or about January 13, 2014, Plaintiff went to Defendants’ facility for dental surgery. . . . During the surgery, Defendants had an untrained assistant assist with the surgery. During the subject surgery, Defendants had small children playing in the surgery room distracting the surgery team. . . . During the surgery Defendants put a hole in Plaintiff’s tongue.” Currently before the Court is the motion for summary judgment by Defendant Dr. Daniels (“Defendant”) asserting that Plaintiff’s claim is time-barred under Code of Civil Procedure (“CCP”) §340.5.

Defendant’s request for judicial notice of two documents is GRANTED in part and DENIED in part. Notice of exhibit G to the declaration of Defense Counsel Aaron Schultz, a file-endorsed copy of the original complaint, is GRANTED pursuant to Evid. Code §452(d). Notice of D to the Schultz Declaration is DENIED as the document is not file-endorsed. On its own motion the Court takes judicial notice of the file-endorsed copy of the FAC present in the Court’s file. Both documents are noticed only as to their existence and filing dates, and not as to the truth of their contents.

Plaintiff’s request for judicial notice is also GRANTED in part and DENIED in part. The request for a copy of a calendar for the month of April 2015 (exhibit 4 to the declaration of Plaintiff’s Counsel Aaron Markowitz) is GRANTED pursuant to Evid. Code §452(h). Judicial Notice of a prior filing by Defendant (ex. 5 to the Markowitz declaration) is DENIED. A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.) While Plaintiff may submit the earlier filing as evidence, only its existence and filing date could be judicially noticed, and both are irrelevant to the material issue before the Court.

The pleadings limit the issues presented for summary judgment and such a motion may not be granted or denied on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) There are no allegations of delayed discovery in either the original complaint or the FAC.

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The opposing party may be bound by admissions made in deposition testimony or responses to interrogatories or RFAs: “[W]hen discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried . . ,’ controverting affidavits submitted . . . may be disregarded.” (See D’Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 21.)

A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) A defendant moving for summary judgment need address only the issues raised by the complaint. Summary Judgment cannot be denied on grounds not raised by the pleadings. (Bostrim v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664.)

Defendant’s MSJ is GRANTED as follows. The one-year statute under CCP §340.5 is triggered when “the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” Defendant has presented admissible evidence (Plaintiff’s medical records and deposition testimony, exhibits A, B and E to the Schultz declaration) establishing that the procedure performed on Plaintiff by Defendant took place on Jan. 3, 2014, and not Jan. 13, 2014 as alleged in the original complaint and operative FAC and as also asserted in Plaintiff Counsel’s November 13, 2014 notice of intent to sue letter. Defendant’s evidence also establishes that Plaintiff knew of his specific injury (a hole or cut in his tongue) by no later than January 10, 2014 and by that same time suspected that Defendant was responsible for the injury. Also, the other acts of malpractice alleged in the original complaint and the FAC—having an untrained assistant and having children present in the room during the wisdom tooth extraction—are things Plaintiff would have to have been aware of the day of the procedure, which the evidence clearly shows was Jan. 3, 2014. Defendant has thus met his initial burden to show that Plaintiff’s claim accrued by Jan. 10, 2014 and that, even taking the 90 day extension triggered by the Notice of Intent to Sue letter (pursuant to CCP §364(d)) into account, the limitations period expired on April 10, 2015 before the original complaint was filed.

When the burden shifts Plaintiff is unable to raise any triable issues of material fact. Plaintiff does not dispute any of Defendant’s 15 Undisputed Material Facts. The opposition argues that Plaintiff did not have actual knowledge that Defendant had injured him until Jan. 11, 2014. Actual knowledge of the identity of the person(s) who injured a plaintiff is not the determinative factor. The one-year statute under CCP §340.5 is triggered when “the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” Plaintiff has not alleged delayed discovery and so cannot rely on that theory. Even if it had been alleged the result would be the same based on the evidence submitted by Defendant. “[A] claim accrues and the statute of limitations begins to run upon the occurrence of the last event essential to the cause of action, even if the plaintiff is unaware that a cause of action exists. The infliction of actual and appreciable harm will commence the limitations period. However, the discovery rule postpones commencement of the limitation period until the plaintiff discovers or should have discovered the facts essential to his cause of action. Under this rule, possession of ‘presumptive’ as well as ‘actual’ knowledge will commence the running of the statute. A plaintiff is charged with ‘presumptive’ knowledge so as to commence the running of the statute once he or she 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.” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 979-980, internal citations and punctuation omitted. See also Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 [“Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.”]) Defendant’s evidence shows that Plaintiff knew of his injury and suspected Defendant was responsible for it by Jan. 10, 2014.