Case Name: Doe v. State of California, et al.
Case No.: 1-13-CV-239762

Currently before the Court is the demurrer of defendant the California Department of Health Care Services (“CDHCS”) to the First Amended Complaint (“FAC”) of plaintiff “Jane Doe” (“Plaintiff”).

The demurrer is SUSTAINED without leave to amend on the ground that Plaintiff fails to state a cause of action because her claims are barred by the statute of limitations.

According to the allegations of the FAC, on October 1999, Plaintiff was negligently advised by County of Santa Clara (the “County”) and Kaiser Foundation Health Plan (“Kaiser”) employees that she could not enroll in Kaiser Medi-Cal, and in detrimental reliance on this advice, she refrained from joining Santa Clara Family Health Plan (“SCFHP”) and continued to pay for individual Kaiser coverage through February 2011. (See FAC, attachment “10”.) Beginning in May 2011, Plaintiff diligently attempted to get Kaiser Medi-Cal, and on November 1, 2011, she was enrolled in Medi-Cal with SCFHP but not with Kaiser. (Id.) After appealing the denial of coverage with regards to Kaiser, she was notified on December 27, 2011, that she was enrolled in Kaiser Medi-Cal with SCFHP, retroactive to December 1, 2011. (Id.) Plaintiff alleges that, in October 1999, she was wrongfully excluded from Kaiser’s policy or practice of allowing Medi-Cal enrollment of Kaiser members, and did not discover this until March 15, 2012. (Id.)

Plaintiff’s claims arise out of an alleged October 1999 negligent misrepresentation regarding her ability to enroll in Kaiser Medi-Cal. Plaintiff alleges that she received notice of her ultimate enrollment in Kaiser Medi-Cal on or about December 27, 2011, and that on March 15, 2012, she learned about the “State Medi-Cal Boilerplate” contract that existed and was in force in 1999, which provides that she had a right to continue her established relationship with Kaiser under Medi-Cal. However, Plaintiff further alleges that she “diligently attempted to get Kaiser Medi-Cal… [b]eginning in May 2011.” As discussed in the Court’s prior order sustaining the demurrer of the County and the Santa Clara County Health Authority without leave to amend, the complaint thus admits that Plaintiff was not diligent in obtaining facts related to the enrollment of Kaiser Medi-Cal from October 1999 to May 2011. Consequently, the delayed discovery rule should not be applied to the accrual of Plaintiff’s claims, and the Court finds that her claims accrued in 1999. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398 [“the plaintiff discovers the cause of action … when, simply put, he at least ‘suspects . . . that someone has done something wrong’ to him, ‘wrong’ being used, not in any technical sense, but rather in accordance with its ‘lay understanding’”], internal citations omitted; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111 [“[o]nce the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit”].) Plaintiff’s claims are thus barred by the statute of limitations. To the extent Plaintiff seeks to bring a section 1983 cause of action, “[t]he statute of limitations for section 1983 actions is the state’s personal injury statute [of limitations]” (Doe By and Through Doe v. Petaluma City School Dist. (N.D. Cal. 1993) 830 F.Supp. 1560, 1566), which is two years in California (see CCP, § 335.1). (See also Board of Regents of University of State of N. Y. v. Tomanio (1980) 446 U.S. 478, 483-484 [state statute of limitations governing analogous causes of action is borrowed for 1983 claims].) Thus, Plaintiff’s section 1983 claims are barred by the statute of limitations on the basis of their October 1999 accrual date, given that this action was filed more than two years after October 1999. Further, any state law claims are also barred by the statute of limitations in light of the more than 10 years that have passed since the event giving rise to Plaintiff’s claim.

Plaintiff argues that the statute of limitations on her claims was tolled because she was not given written notice of the reasons she did not qualify for Kaiser Medi-Cal. In support of this argument, Plaintiff cites Morales v. McMahon (1990) 223 Cal.App.3d 184, 186, which discusses federal regulations that impose requirements upon the state when it intends to take “‘adverse action’ as to certain benefits (such as reducing or ending payments to the recipient).” Here, however, Plaintiff does not allege that CDHCS or any other agency affiliated with the State of California took any adverse action with respect to her benefits; rather, she alleges that the County and Kaiser negligently advised her that she did not qualify for Kaiser Medi-Cal. Plaintiff’s argument is thus unavailing.

Consequently, Plaintiff has failed to state a claim against CDHCS. Nor does it appear reasonably likely that Plaintiff can amend her FAC to state such a claim. As discussed above, Plaintiff admits in the FAC that she did not attempt to obtain facts related to her eligibility for enrollment in Kaiser Medi-Cal until 2011, and she does not argue in her opposition that she would be able to plead facts establishing her diligence in investigating her claim in an amended complaint. CDHCS’s demurrer is consequently sustained without leave to amend. (See Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542 [“absent an effective request for leave to amend in specified ways,” it is an abuse of discretion to deny leave to amend “only if a potentially effective amendment were both apparent and consistent with the plaintiff’s theory of the case”]; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1387 [“An order sustaining a demurrer without leave to amend will constitute an abuse of discretion if there is any reasonable possibility that the defect can be cured by an amendment.”], italics original, internal quotations and citations omitted; Goodman v. Kennedy (1976) 18 Cal. 3d 335, 349 [“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”], quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; Hendy v. Losse (1991) 54 Cal. 3d 723, 742 [“the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”].)

The Court will prepare the order. After Defendants serve notice of entry of the order sustaining demurrer, Defendants shall prepare a proposed judgment of dismissal.