Filed 4/6/20 Renfro v. Chen CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CHRISTOPHER RENFRO,

Plaintiff and Appellant,

v.

KAI-LIEH CHEN,

Defendant and Respondent.

F076083

(Super. Ct. No. VCU267257)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Bret D. Hillman, Judge.

Christopher Renfro, in pro. per., for Plaintiff and Appellant.

White Canepa, Mark B. Canepa and Daniel A. Martin, for Plaintiff and Respondent.

-ooOoo-

After he was injured at work, plaintiff Christopher Renfro went to defendant doctor Kai-Lieh Chen on October 17, 2014, for a nerve conduction study. Renfro alleges Chen fraudulently conducted the study and manipulated the test results to show no nerve damage in an effort to appease the insurance company and remain on the company’s doctor referral list. Renfro alleges it was not until over a year later that he underwent a second and third nerve conduction study and learned he in fact had nerve damage.

On October 17, 2016, Renfro filed his initial complaint against Chen, alleging several causes of action including battery and fraud. Demurrers were ultimately sustained as to all causes of action without leave to amend on statute of limitations grounds. On appeal, Renfro challenges the trial court’s sustaining of the demurrers to the fraud and battery causes of action.

We first conclude Renfro forfeited his right to appeal the sustaining of the demurrer to his battery claim, and we therefore do not consider the merits of his appeal relating to that cause of action.

As to the fraud cause of action, Code of Civil Procedure section 340.5 provides the time for commencing a medical malpractice 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.” Here, it appears on the face of Renfro’s pleadings he was aware of his injuries and their wrongful cause on October 17, 2014, the day of the nerve conduction study. Consequently, Renfro’s fraud claim is barred by the statute of limitations, and we affirm the dismissal of that cause of action on that ground.

FACTS

Initial Complaint

Renfro has represented himself throughout this litigation. On October 17, 2016, he filed his initial complaint alleging several causes of action against Chen, including for battery and fraud. He alleged that on or about October 17, 2014, he went to Chen’s office for a nerve conduction study after a workplace injury where he “cut his ulnar nerve in his right hand.” Renfro and Chen discussed Renfro’s injury at Chen’s office, and Chen explained the test would “hurt a little.” Renfro signed consent forms with the understanding Chen would stop the test if Renfro became too uncomfortable.

Chen performed the test with an apparatus that looked like a “white bike break” [sic] that sent “electroits [sic] through his system” to test if there was proper “nerve reception.” Renfro described the test initially as “quite painful but tolerated.” Chen then moved the test to Renfro’s right wrist, and the procedure became “very very painful.” Chen “turned his machine up; checked it several times and began to shock and electrocute [Renfro] with his instrument.”

“At one point [Chen] climbed up with his body somehow around the hand and told [Renfro] to quite [sic] down and it would only take a little while more.” Chen “was possessed as he put his arms and legs around [Renfro’s] arm to shock it.” Renfro told Chen to stop the test and said his hand was “feeling burnt by the procedure.” Renfro continued to feel burning pain in his hands for several months to a year after the procedure. Chen’s findings from the study were that “there was no nerve damage to [Renfro’s] right hand and that he showed no signs of carp[a]l tunnel or any other injury or disease in his arm or body.”

In November 2015 and April 2016, Renfro underwent MRIs and other nerve conduction studies which proved Chen’s test was “100% false.” In total, three other doctors have concluded Chen’s test was false. These later tests showed damage to Renfro’s ulnar nerve “[t]o the point [he] has been found to be a 30% disability.”

Renfro alleged Chen conducted a false nerve conduction study to produce a result of no nerve damage in order to “appease the insurance company.” He claimed he was damaged by having to wait several months for the insurance company to authorize another nerve conduction study. He also claimed he could not get approved surgery until after he underwent another nerve conduction study, but he did not allege whether he had had surgery yet.

First Amended Complaint and First Demurrer

The original complaint was filed on October 17, 2016. On November 22, 2016, Renfro filed his first amended complaint containing the same general allegations. Chen filed a demurrer to all causes of action on several grounds, including that all claims were barred by the one-year statute of limitations period of section 340.5, and Renfro filed an opposition.

On January 24, 2017, the trial court sustained the demurrer to all causes of action. The demurrer was sustained as to the battery claim without leave to amend on statute of limitations grounds, and was sustained as to the fraud cause of action with leave to amend on the ground the complaint did not detail any of the essential elements of fraud. This order was mailed to the parties on January 27. Renfro filed a motion to reconsider the order sustaining the first demurrer, which the court denied on March 7. Notice of the order denying this motion was also mailed on March 7.

Second Amended Complaint

On March 13, Renfro filed his second amended complaint alleging a single cause of action for fraud. He alleged he was sent to Chen’s office on or about October 17, 2014, for a nerve conduction study “to test the nerve damage sustained in a fall were [sic] he had a deep laceration.” He told Chen that doctors were unsure if the “complete numbness” he was experiencing was acute or chronic, and the doctors felt his nerve “may just be compressed and cutting off the feeling to his hand.” Renfro told Chen his private doctor “felt the injury had caused swelling that pinched the nerve causing loss of felling [sic] to his right arm.”

Chen began the study on Renfro’s left side. Chen used a needle and “a bike brake looking white bar” to send “light shocks” throughout Renfro’s left side and around his neck area. This initial testing consisted of “two jolts,” and the results were displayed in graph charts on a computer monitor.

Chen moved to test Renfro’s right side and Renfro noticed the amount of electricity being used increased. By the time Chen reached the bottom of Renfro’s arm, he had conducted between four and eight tests. Chen would delete the results after each test and then retest, and the amount of electricity used continuously increased. Renfro experienced severe pain and asked Chen to stop the test, but Chen did not stop. Instead, Chen “positioned his body around Renfro’s arm and then began several more test[s] on his hand/wrist area.” Renfro told Chen to stop and “complained severely.” Chen “tested, deleted; tested, deleted, re-tested (was told to stop by Renfro), deleted, and only after extreme voltage and pain, kept the score on the computer that was used to test Renfro and apply it to his case study.” Renfro watched as Chen “changed results several times on the screen and retested.” The electrical shocks “cooked Renfro’s hand, burned it, and caused a suspected fracture to the fifth metacarpal.” Renfro “was traumatized, emotional [sic] distressed, and shocked at the procedure,” and continued to feel burning pain in his hand after the procedure.

Chen’s report indicated no nerve damage. However, Renfro still had no feeling in a particular spot on his hand. Renfro underwent two more nerve conduction studies, one in November 2015 and one in April 2016, which indicated mild to moderate nerve damage.

Renfro alleged Chen used an aggressive method of testing to produce a reading from the machine that would conceal Renfro’s nerve damage. Chen concealed the injury to appease the insurance company and to remain on the company’s “recommendations list.” Renfro alleged: “As a result of Chen’s fraud, [Renfro] still suffers pain in his right hand in the fifth metacarpal and his surgery was put off for a year and half due to Chen’s false and manipulated report.”

Second Demurrer

On April 14, Chen filed a demurrer to Renfro’s second amended complaint on several grounds, including that section 340.5’s one-year provision barred the fraud claim. Renfro filed an opposition. On May 23, the trial court sustained the demurrer on section 340.5 grounds, and the order was mailed to the parties on May 24. On June 20, a judgment of dismissal of the second amended complaint only was entered, and Renfro was served with the judgment by Chen’s counsel via mail on June 26. The judgment was prepared by Chen’s counsel and read in relevant part as follows: “Pursuant to the Court’s order dated May 23, 2017, sustaining the Demurrer of [Chen] to the Second Amended Complaint of Plaintiff Christopher Renfro, without leave to amend. [¶] IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiff’s Second Amended Complaint is dismissed with prejudice as to [Chen] and that judgment be entered in favor of [Chen][.]”

Notice of Appeal

On July 21, Renfro filed a notice of appeal. He did not check the specific box on the notice indicating he was appealing from a “judgment of dismissal after an order sustaining a demurrer.” Instead, he checked the box for “other,” and said he was appealing the following: “Judgment on demurrer 5/23/2017 and demurrer sustained on cause of action for fraud; and relief from dismissal filed by clerk on 6/20/17.” Renfro attached to the notice of appeal the May 23 order sustaining the second demurrer but did not attach either the judgment of dismissal or the January 24 order sustaining the first demurrer.

On September 25, 2018, Renfro filed a motion to augment seeking permission to amend his notice of appeal to include a challenge to the January 24 order. This court denied that motion on October 17, 2018. Seven days later, on October 24, 2018, Renfro filed a motion to amend his notice of appeal to include a challenge to the January 24 order which was substantively identical to the motion to augment. We deferred ruling on the motion pending consideration of this appeal on the merits.

As relevant to the issue regarding the notice of appeal, we note that Renfro’s opening brief and reply brief both contain argument pertaining to the January 24 order.

DISCUSSION

We first address the issue of forfeiture of Renfro’s right to challenge the January 24 order sustaining the first demurrer as to the battery cause of action without leave to amend. We conclude Renfro forfeited this right because his notice of appeal specified he was challenging only the May 23 order sustaining the second demurrer to the fraud cause of action.

We next address his challenge to the trial court’s sustaining of the demurrer to the fraud cause of action. We conclude the trial court correctly sustained the demurrer because the fraud claim was time barred by the one-year provision of section 340.5. We also conclude the trial court was correct not to grant leave to amend.

I. Forfeiture

Chen argues Renfro’s appeal is limited to the challenge of the trial court’s order sustaining the second demurrer, which was the demurrer to the fraud cause of action. Renfro asserts the order sustaining the first demurrer was omitted from the notice of appeal due to his own mistake or inadvertence and urges this court to not limit his appeal. We conclude Renfro’s appeal is limited to his challenge of the sustaining of the second demurrer.

First, we want to be clear the January 24 order sustaining the first demurrer —as well as the subsequent order denying Renfro’s reconsideration motion—was an interlocutory order and not immediately appealable. Section 904.1 provides, in relevant part: “An appeal … may be taken from … “a judgment” other than “an interlocutory judgment ….” This provision effectively codifies the common law “one final judgment rule,” which is that an appeal lies only from a final judgment that terminates the trial court proceedings by completely disposing of the matter in controversy. (Griset v. Fair Political Practices Comm’n (2001) 25 Cal.4th 688, 697.)

The order sustaining the first demurrer did not dispose of the matter in controversy because the fraud and strict liability claims remained, and therefore it was not immediately appealable. The order became appealable on June 26 which was the day the June 20 judgment of dismissal was served on Renfro. (Cal. Rules of Court, rule 8.104; § 1013.) Renfro had 60 days from that date of mailing to file a notice of appeal, and he filed his notice on July 21 well within the time limit. There is thus no question his notice of appeal was timely filed. The issue is whether the notice of appeal limited his appeal to challenging only the May 23 order sustaining the second demurrer.

In determining whether Renfro’s appeal is limited to challenging the May 23 order, we must first evaluate whether the judgment of dismissal is “severable”: “The well recognized rule is that there may be an appeal from a part of a judgment only if that part is severable. [Citations.] Where portions of a judgment are truly severable, the appellate court is without jurisdiction to consider the parts from which no appeal has been taken. [Citations.] And the appellate court will consider the portion before it independently of the other parts. [Citations.] Modification or reversal of the portion of the judgment from which the appeal has been taken has no effect upon the other portions.” (American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 216 (American Enterprise).)

“ ‘[I]n order to be severable, and therefore [separately] appealable, any determination of the issue so settled by the judgment … must not affect the determination of the remaining issues whether such judgment on appeal is reversed or affirmed …. Perhaps another way of saying it would be that the judgment is severable when the original determination of those issues by the trial court and reflected in the judgment or any determination which could be made as the result of an appeal cannot affect the determination of the remaining issues of the suit ….’ ” (American Enterprise, supra, 39 Cal.2d at p. 217.)

An appeal to only a part of a “severable” judgment is called a “partial appeal.” (Eisenberg, Civ. Practice Guide: Civil Appeals and Writs (Rutter Group 2019), § 2:312.) If a partial appeal is taken to a nonseverable judgment, the judgment is still reviewable in its entirety; that is, the Court of Appeal has jurisdiction to review not only the specific portion appealed but also the “interdependent” nonappealed portions. (Gonzales v. R.J. Novick Const. Co. (1978) 20 Cal.3d 798, 805 (Gonzales).)

Here, the judgment of dismissal was severable because the January 24 and May 23 orders were completely independent of each other. After the several causes of action subject to the first demurrer were dismissed without prejudice, the fraud and strict liability causes of action could, and did, proceed unaffected as if the dismissed causes of action were never filed at all. Reversal of either order would not “require a reconsideration of the whole case in the court below.” (Gonzales, supra, 20 Cal.3d at p. 805.)

As a consequence, we apply “ ‘the general principle that an appeal from a distinct and independent part of a judgment does not bring up the other parts for review in the appellate court ….’ ” (Gonzales, supra, 20 Cal.3d at p. 805.) Applying this principle, we conclude Renfro has forfeited his right to appellate review of the January 24 order sustaining the first demurrer. This opinion is thus limited to review of the portion of the May 23 order sustaining the second demurrer as to the fraud cause of action only.

Renfro contends his omission of the January 24 order from his notice of appeal was the result of his own mistake and inadvertence, and he urges us to allow him to amend his notice of appeal to include a challenge to that order. It is true we must liberally construe a notice of appeal in favor of its sufficiency (Cal. Rules of Court, rule 8.100(a)(2)). A notice of appeal also shall be “ ‘liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ ” (In re Joshua S. (2007) 41 Cal.4th 261, 272.)

However, there are limits to our ability to liberally construe a notice of appeal. “The policy of liberally construing a notice of appeal in favor of its sufficiency [citation] does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all.” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.) “[I]t is well ‘beyond liberal construction’ to view an appeal from one order as an appeal from a ‘further and different order.’ [Citation.] ‘Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed.’ [Citation.] ‘The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only … one of two separate appealable judgments or orders.’ ” (Baker v. Castaldi (2015) 235 Cal.App.4th 218, 225-226.) Therefore, when a notice of appeal manifests a “ ‘clear and unmistakable’ ” intent to appeal only from one order, we cannot liberally construe the notice to apply to a different, omitted order. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625, quoting Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91-92; accord, Ellis v. Ellis (2015) 235 Cal.App.4th 837, 846 [declining to liberally construe notice of appeal to include corrected judgment “where every indication in the record” showed appellant only intended to appeal from original judgment].)

As indicated ante, Renfro’s notice of appeal makes no mention of the January 24 order sustaining the first demurrer. Instead, the notice expressly states he intended to appeal solely the portion of the May 23 order sustaining the second demurrer as to the fraud cause of action. Renfro also only attached the May 23 order to the notice of appeal. Renfro could have indicated on his notice of appeal that he was appealing from the judgment of dismissal, but he did not.

II. Demurrer to the Fraud Cause of Action

Renfro contends the trial court erred by sustaining the demurrer to his fraud cause of action on the ground it was time barred by the one-year provision of section 340.5’s statute of limitations. While Chen argues section 340.5’s one-year provision for Renfro’s fraud claim began to run on the date of the nerve conduction study, Renfro contends the provision did not begin to run until over a year later when Renfro learned from a second doctor that he in fact had nerve damage. We agree with Chen the one-year statute of limitations for the fraud cause of action began to run on the date the nerve conduction study was performed and conclude that cause of action is time barred.

A. Grounds for Demurrer

Under section 430.30, subdivision (a), when “any ground for objection to a complaint … appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” The statute of limitations is a “ground for objection to a complaint” for purposes of this provision and, therefore, may be raised in a demurrer. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 493.)

Generally, an order sustaining a demurrer on statute of limitations grounds is subject to de novo review on appeal. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) The untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed before an appellate court will affirm an order sustaining the demurrer. (Id. at p. 42.) Allegations in the complaint showing the claim might be barred are not enough. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

B. General Principles Governing Statutes of Limitation

Statutes of limitation prescribe the length of time a plaintiff is given to bring suit or be barred from doing so. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 (Aryeh).) Generally, the limitations period “runs from the moment a claim accrues.” (Ibid.; § 312 [action must be “commenced within the periods prescribed in this title, after the cause of action shall have accrued”].) California follows the “ ‘last element’ ” accrual rule, which provides the statute of limitations runs from the occurrence of the last element essential to the cause of action. (Aryeh, supra, at p. 1191.) Our Supreme Court has described the essential elements for statute of limitations purposes as “ ‘wrongdoing, harm, and causation.’ ” (Ibid.)

The foregoing general rules are subject to a handful of modifications and equitable exceptions that alter the initial accrual of a cause of action, the subsequent running of the limitations period, or both. (Aryeh, supra, 55 Cal.4th at p. 1192.) These exceptions and modifications include the discovery rule, equitable tolling, equitable estoppel, the continuing violation doctrine, the theory of continuous accrual, and waiver. (Ibid.)

The delayed discovery rule postpones the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) Accordingly, the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have uncovered a factual basis for the particular cause of action. (Id. at p. 803.)

C. Section 340.5

Section 340.5 establishes the statute of limitations in medical malpractice lawsuits. It reads 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, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.”

Under the plain wording of section 340.5, the shorter of the two limitation periods determines whether the action is timely filed. (Ngo v. County of Los Angeles (1989) 207 Cal.App.3d 946, 948.) Stated another way, “[a] plaintiff in a medical malpractice action must satisfy the requirements of both the one-year and the three-year limitations periods.” (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189.) However, the second sentence of section 340.5, which addresses situations in which the commencement of an action is tolled, applies only to the three-year period. (Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928, 934.)

1. Section 340.5’s Applicability to Renfro’s Fraud Cause of Action

The trial court determined in its May 23 order that section 340.5 applied to Renfro’s fraud cause of action, stating that “case law has extended the time restrictions of section 340.5 to causes of action for intentional torts committed by [a] health care provider that arise out of the same treatment provided to the patient/plaintiff that would be the basis for his or her medical malpractice claim.” Chen cites to Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, which held that claims challenging how a doctor performs his professional services are subject to section 340.5. Renfro does not contest the trial court’s determination that section 340.5 applies to his fraud cause of action. Indeed, his argument on appeal is not that section 340.5 was inapplicable to the fraud cause of action, but that section 340.5’s one-year provision did not begin to run until over a year after Chen’s nerve conduction study. We apply section 340.5 to our analysis of the demurrer to the fraud cause of action.

2. Commencement of the Statute of Limitations

“The one-year limitation period of section 340.5 is a codification of the discovery rule, under which a cause of action accrues when the plaintiff is aware, or reasonably should be aware, of ‘injury,’ a term of art which means ‘both the negligent cause and the damaging effect of the alleged wrongful act.’ ” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290.) A cause of action will accrue when the plaintiff had reason to suspect their injury was caused by wrongdoing, not when they get confirmation from a second test that they are injured. “So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111 (Jolly).)

Renfro alleged his injuries from Chen’s fraudulent study consisted of longstanding pain in his right hand in his fifth metacarpal as well as a year and half delay in being approved for surgery. It is unclear whether Renfro has yet undergone surgery. In any event, Renfro had reason to suspect his “injury”—that is, his pain and delay in surgery—were the result of Chen’s fraud.

Renfro was experiencing “complete numbness” in his hand prior to the nerve conduction study and was told by his primary doctor he may have nerve damage, which means the possibility of nerve damage should have been in Renfro’s contemplation before visiting Chen’s office. During the test, Renfro watched Chen delete the test results several times, which should have prompted Renfro to suspect something was amiss. Renfro also alleged Chen appeared to be “possessed” as he “climbed up” onto Renfro during the study, and Renfro left feeling “traumatized” and “shocked.” The deletion of the test results coupled with the outrageous way the study was conducted should have led him to suspect the test was fraudulently conducted and the tests were manipulated to indicate no nerve damage when in fact there was damage. Said differently, Renfro had reason to question the integrity of the test results.

While Renfro may not have known for certain he had nerve damage until over a year later when he underwent a second nerve conduction study, he had reason to suspect Chen’s study was fraudulent and in turn had a duty to act on his suspicion and not wait for the facts to find him. (Jolly, supra, 44 Cal.3d at 1111; see also Arroyo, supra, 225 Cal.App.4th at pp. 294-295 [it is a plaintiff’s suspicion of wrongdoing, rather than an expert’s opinion, that triggers the one-year limitation period of section 340.5].) Renfro also knew he could not be approved for surgery with Chen’s results indicating no nerve damage, which should have given Renfro additional reason to act urgently to confirm Chen’s fraud.

We conclude Renfro had reason to suspect Chen’s fraudulent acts on the date of the nerve conduction study, and in turn conclude the one-year statute of limitations provision of section 340.5 began to run on that day. Renfro’s initial complaint was not filed until approximately two years thereafter, and accordingly his fraud cause of action is time barred. Renfro also was properly not afforded leave to amend because he cannot possibly amend his complaint to avoid the statute of limitations.

DISPOSITION

The judgment is affirmed. Respondent is awarded his costs on appeal. Renfro’s October 24, 2018 motion to amend his appeal is denied.

SNAUFFER, J.

WE CONCUR:

FRANSON, Acting P.J.

SMITH, J.