Case Name: Emilio Carrillo v. County of Santa Clara
Case No.: 19CV342118

Plaintiff Emilio Carrillo (“Plaintiff”) alleges that while he was an inmate at the Elmwood Correctional Facility in Milpitas, California operated by Defendant County of Santa Clara (“County”), negligent medical care provided by a nurse at the facility (the “popping” and draining of a blister on the bottom of his right foot over his objections) resulted in infection and the development of gangrene. Plaintiff was admitted to the Santa Clara Valley Medical Center on December 20, 2017 where his right foot was amputated. Plaintiff was discharged from the medical center “on or around” December 31, 2017.

Plaintiff’s original complaint was filed on January 18, 2019, stating claims for professional medical negligence and battery. It did not allege compliance with the Government Claims Act or provide an explanation for its filing more than a year after the injury caused by the alleged medical negligence. Plaintiff’s operative First Amended Complaint (“FAC”) was filed on June 7, 2019, stating a single claim for professional medical negligence. The FAC alleges (at ¶5) that Plaintiff filed a notice of claim with the County on June 18, 2018 which was rejected on July 19, 2018. It also alleged for the first time that “in or around April, 2018, Plaintiff went to the Mexican Consulate located in San Jose to obtain some guidance on immigration matters. While at the consulate, the subject of his right foot amputation came up. Plaintiff became informed and on that basis believed that the actions of DOE 1 [the nurse at the facility] were the cause of his gangrene and septic shock, which resulted in the amputation of his right foot.” (FAC at ¶14.)

Currently before the Court is the County’s demurrer to the FAC.

Request for Judicial Notice
In support of the demurrer the County requests judicial notice of two documents, copies of which are attached as exhibits A and B to the request, pursuant to Evidence Code §452(c) (official acts). Exhibit A is a copy of the notice of claim filed by Plaintiff with County on June 18, 2018. It identifies the date of the incident or loss as “12/20/2017 to 12/31/2017” and describes the loss as follows: “Claimant’s left foot was amputated as a result of inadequate medical care by the County’s agents and employees.” Exhibit B is a copy of the County’s Notice of Rejection of Plaintiff’s claim dated July 19, 2018.

The Notice of Rejection (exhibit B) is clearly an official act of the County and notice is GRANTED under §452(c). Plaintiff’s notice of claim (exhibit A) is not an official act of the County but judicial notice is still GRANTED as when a complaint asserts compliance with the Gov. Claims Act, the Court may take judicial notice of records which may show whether claims requirements were complied with. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376.) The Court only takes notice of the existence of those documents and not the statements therein if the truth of those statements is reasonably subject to dispute. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.)

Demurer to FAC
The Court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) Where a demurrer is to an amended complaint, the Court “may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making contradictory averments, in a superseding, amended pleading.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 [internal quotations omitted].)

Allegations are not accepted as true on demurrer if they contradict or are inconsistent with facts judicially noticed. (See Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474 [rejecting allegation contradicted by judicially noticed facts].) “While inconsistent theories of recovery are permitted, a pleader cannot blow hot and cold as to the facts positively stated.” (Manti v. Gunari (1970) 5 Cal.App.3d 442, 449, internal citation omitted. See also Witkin, California Evidence (4th Ed., 2000) 1 Judicial Notice §3(3) [“It has long been established in California that allegations in a pleading contrary to judicially noticed facts will be ineffectual; i.e., judicial notice operates against the pleader.”])

The County demurrers to the FAC’s professional medical negligence claim on three grounds: 1) that it fails to state sufficient facts; 2) that it is barred by the one year statute of limitations set forth in Code of Civil Procedure (“CCP”) §340.5, and 3) that the County is immune from liability for injuries to a prisoner under Government Code §844.6. (See Notice of Demurrer and Demurrer at p. 2:2-8.) In its memorandum of points & authorities the County focuses on the latter two arguments, arguing that the claim fails to state sufficient facts because it is time-barred and/or the County has statutory immunity.

Statute of Limitations—CCP §340.5.
“A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995.) The running of the statute must appear clearly and affirmatively from the dates alleged—it is not enough that the complaint might be barred. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42.) Generally, the limitations period starts running when the last element of a cause of action is complete.” (NBCUniversal Media, LLC v. Super. Ct. (2014) 225 Cal.App.4th 1222, 1231.)

CCP §340.5 sets the limitations period for an action asserting professional negligence by a health care provider as either 3 years from the injury or 1 year from discovery of the injury. The one-year statute of limitations 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.” CCP §340.5 “sets forth two alternative 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.” (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.)

“[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.”])

Here the County argues that it is readily apparent from the FAC that Plaintiff knew of his injury and its alleged negligent cause as soon as it occurred as Plaintiff “alleges that his blister became infected within three days of being popped, and he developed gangrene, went into septic shock, and was admitted to Santa Clara Valley Medical Center on December 20, 2017 where his foot was amputated. (FAC ¶11.) Plaintiff thus concedes that the nurse’s alleged negligence resulted in injury on December 20, 2017 at the very latest. Plaintiff’s Government Claim also alleges an injury date of December 20, 2017, when his foot was amputated ‘as a result of inadequate medical care.’ (RJN, Ex. A.) . . . Thus, by the allegations of his own complaint, December 20, 2017 is set as the date of accrual for plaintiff’s professional negligence claim and the date from which the one-year statute of limitations begins.” (County Memo of P&As at p. 9:1-11.)

The County further argues that the FAC’s allegations undeniably establish that CCP §340.5’s one-year limitations period applies. “Specifically, plaintiff alleges that the amputation was set in motion by an earlier series of wrongful acts, including the nurse’s popping of his blister over his objection while he was restrained. (FAC ¶¶8, 9.) Within days, plaintiff alleges, the improperly-exposed blister became infected and he developed gangrene, became febrile, and went into septic shock. (FAC ¶¶9, 11.) These symptoms led to his admission to the hospital on December 20, 2017 and his foot amputation that same day. (FAC ¶11.) Against the backdrop of these facts, plaintiff cannot credibly argue that he had no reason to suspect wrongdoing or a need to investigate the very obvious amputation of his foot. In other words, his FAC sets forth the alleged causation, and makes clear that he was aware that the purportedly unauthorized treatment (the nurse popping his foot blister) and the purported consequent outcome (the amputation of that same foot) all occurred in December 2017. There can be no question but that a reasonable person having his foot amputated under such circumstances would necessarily be on notice that something was wrong. And it is presumed that he would have acted diligently to discover the cause of his injury at that time.” (County P&As at p. 10:22-11:7.)

Plaintiff has two responses to this argument. First, he claims that the Government Claims Act, specifically Gov. Code §§ 9459.6 and 950.6 “provide that a suit against a public entity or employees must be filed within six months after a claim for damages is rejected by the public entity. These statutes ‘trump’ section 340.5.” (Opp. at p. 5:6-7.) In other words, Plaintiff asserts that so long as the lawsuit is filed within six months of the public entity’s denial of a claim and within three years of the date of the injury, the lawsuit is timely even if the pled facts clearly make the CCP §340.5 one-year limitations period applicable. Under Plaintiff’s statutory interpretation, the one-year limitation period can never apply in a lawsuit against a public entity.

Second, Plaintiff argues that even if CCP §340.5 applies, this lawsuit is timely under the three-year limitations period because the allegation in the FAC at ¶14 establishes that “the elements of the physical condition and the negligent cause were not discovered until April 2018.” (Opp. at p. 8:7-8.)

The Court finds the County’s arguments more persuasive on this issue and the demurrer on the basis that the CCP §340.5 one-year limitations period applies and bars Plaintiff’s claim is SUSTAINED.

The one-year limitations period was triggered, under both the subjective and objective tests, by no later than the end of December 2017. The FAC’s allegations make clear that Plaintiff actually believed by the end of December 2017 that his injury (the infection and subsequent amputation of his foot) 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. 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. Accordingly, Plaintiff’s professional medical negligence claim was already time-barred when the original complaint was filed on January 18, 2019.

The Government Claims Act’s filing deadlines and limitations period do not supplant the CCP §340.5 limitations periods with respect to malpractice actions against government entity health care providers as Plaintiff claims. A plaintiff must comply with both statutes within the applicable CCP §340.5 limitations period (one year or three years). “Our Supreme Court has stated that [CCP] section 340.5 was ‘intended to cover all personal injury claims arising from medical malpractice’ . . . Therefore, while Government Code section 945.6 generally applies to public entities, [CCP] section 340.5 applies to all health care providers, both public and private.” (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, 482-483 [internal citations omitted, emphasis in original, brackets added].) “[I]t would be incongruous if plaintiff were allowed to invoke the tolling provisions of the Government Claims Act, which was intended by the Legislature to limit actions against public entities, to escape the effect of the statute of limitations of another statute with a similar goal, and thus be permitted to bring her action. Allowing plaintiff here to bring her lawsuit beyond the MICRA deadline because of the tolling provision in the Government Claims Act would violate the well-established authorities prohibiting tolling of MICRA’s deadlines for reasons outside of Code of Civil Procedure section 340.5 itself.” (Id. at p. 484 [internal citations omitted, emphasis in original].) The fact that the Roberts decision involved CCP §340.5’s three year statute of limitations does not make its reasoning inapplicable to the present facts as Plaintiff argues, or support an argument that the Government Claims Act does “trump” the CCP §340.5 one-year limitations period. Whichever CCP §340.5 limitations period applies to the pled facts is not extended by the Government Claims Act provisions allowing six months to bring a lawsuit after a claim is rejected by a public entity. To adopt Plaintiff’s statutory interpretation would effectively mean that the CCP §340.5 one-year limitations period never applies to a medical negligence claim against a government entity, an absurd result that is contrary to California authority.

None of the decisions cited by Plaintiff in the Opposition (including the Roberts decision) support the argument that a plaintiff with actual knowledge of his/her injury and its claimed negligent cause can “trump” the one-year limitations period set forth in CCP § 340.5 by filing a notice of government claim during that one year period such that the time to file a lawsuit after a rejection of that claim provided by the Government Claims Act extends beyond the one-year deadline established by CCP §340.5.

In addition to the FAC’s allegations establishing that Plaintiff knew of his injury and suspected it was the product of negligent medical treatment by no later than the end of December 2017, the allegation in the FAC at ¶14 does not adequately allege delayed discovery.

“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.’ 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.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808, internal citations omitted, emphasis added.) To be entitled to the benefit of the delayed discovery rule a plaintiff must specifically plead the time and manner of discovery and show the following: 1) Plaintiff had an excuse for late discovery; 2) Plaintiff was not at fault in discovering facts late; 3) Plaintiff did not have actual or presumptive knowledge to be put on inquiry; 4) Plaintiff was unable to make earlier discovery despite reasonable diligence. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1319, 1324-1325.)

As the claim is, based on the allegations of the FAC, time-barred under CCP §340.5’s one-year statute of limitations leave to amend is DENIED as futile.

The Court notes that Plaintiff in his opposition does not request leave to amend, or present any possible amendment. Plaintiff bears the burden of proving an amendment would cure the defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; see also Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112 fn. 8 [“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”])

As the Court has sustained the demurrer on statute of limitations grounds, it is not necessary for it to address the County’s statutory immunity argument.