Case Name:   Rodriguez v. County of Santa Clara, et al. 

Case No.:       1-14-CV-262377

Defendant County of Santa Clara (“Defendant”) demurs to the First Amended Complaint (“FAC”) of plaintiff Josefina Rodriguez (“Plaintiff”) on the ground that it fails to state facts sufficient to constitute a cause of action.

Defendant’s request for judicial notice is DENIED.  Defendant seeks judicial notice for the purpose of taking judicial notice of facts asserted in certain documents.  However, a court cannot take judicial notice of hearsay statements in documents.  (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)  As explained by one court,

[t]aking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.  On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint.  A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.  The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.

(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113-114, internal citations and quotation marks omitted.)

Plaintiff alleges that Plaintiff’s son, Armando Cruz (“Cruz”), suffered from an extremely rare condition, Arginase Deficiency, which required strict adherence to dietary restrictions.  (FAC, ¶ 8.)  In October 2012, Cruz received medical care and treatment at Santa Clara Valley Medical Center for a condition unrelated to his Arginase Deficiency.  (FAC, ¶ 11.)  During his treatment, Cruz’s treating health care providers knew or should have known of his Arginase Deficiency, and that deviation from the strict dietary conditions associated with the deficiency would put Cruz at substantial risk of injury or death.  (FAC, ¶ 11.)  On October 20, 2012, the defendants gave or permitted to be served to Cruz a protein-rich sandwich that was a substantial deviation from his strict dietary restrictions.  (FAC, ¶ 12.)  This resulted in his death.  (FAC, ¶ 14.)

Defendant argues that Plaintiff cannot maintain her claim because she did not present a timely claim in compliance with the Government Claims Act and did not obtain relief from the Court to file a late claim.  Generally, claims for money or damages against a local public entity must be presented to the entity prior to the initiation of litigation.  (Gov. Code, § 905.)  A claim relating to a cause of action for death or for injury to person or to personal property or growing crops must be presented not later than six months after the accrual of the cause of action.  (Gov. Code, § 911.2.)  When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.  (Gov. Code, § 911.4.)  The application must be presented to the public entity within a reasonable time not to exceed one year after the accrual of the cause of action and must state the reason for the delay in presenting the claim.  (Ibid.)

Plaintiff alleges she filed a claim on October 22, 2013.  (FAC, ¶ 15.)  Defendant contends the claim was late because it was filed more than six months after Cruz’s death on October 20, 2012.  In response, Plaintiff argues that her cause of action for medical malpractice did not accrue until she became suspicious of malpractice in October 2013.  Plaintiff is essentially arguing that the cause of action accrued later because of delayed discovery.

Under the delayed discovery rule, a cause of action accrues when the plaintiff either (1) actually discovers the injury and its negligent cause, or (2) could have discovered the injury and cause through the exercise of reasonable diligence.  (Mangini v. Aerojet-General Corp. (1991) 230 Cal. App. 3d 1125, 1150.)  A plaintiff seeking 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.  (Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal. 4th 623, 638.)

Plaintiff alleges that she discovered the cause of death on August 26, 2013, when the Office of the Medical Examiner-Coroner mailed a letter to her stating that the postmortem examination had been completed and the cause of action was the recent consumption of a high protein sandwich during hospitalization while on a restricted diet for Arginase Deficiency.  (FAC, ¶ 14.)  While this potentially could support Plaintiff’s argument of delayed discovery, Plaintiff does not specifically plead facts to show her inability to have made earlier discovery despite reasonable diligence.  Consequently, the allegations of the FAC do not show compliance with the Government Claims Act.  Defendant’s demurrer to the FAC is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.