Case Number: 19STCV12226 Hearing Date: June 06, 2019 Dept: 4A

Demurrer without Motion to Strike

Having considered the demurring papers, the Court rules as follows. No opposition was filed.

BACKGROUND

On June 15, 2018, Plaintiff Angel Osornio (“Plaintiff”) filed a complaint against Defendant Playa Vista Medical Center (“Defendant”) alleging medical negligence, fraud, infliction of emotional distress, and a breach of contract for a failure to perform a proper examination of Plaintiff during a January 9, 2013 urgent care visit.

On May 5, 2019, Defendant filed a demurrer to Plaintiff’ complaint due to lapses in various statutes of limitations, a failure to plead sufficient facts to state Plaintiff’s causes of action, and for uncertainty.

Trial is set for December 13, 2019.

PARTY’S REQUEST

Defendant requests that the Court sustain its demurrer because all of Plaintiff’s causes of action are barred by the relevant statute of limitations, are uncertain, and fail to plead facts to constitute a cause of action.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code of Civ. Proc. § 430.41.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

DISCUSSION

Meet and Confer

The Court finds Hannah R. Dunn, Esq.’s declaration sufficient to satisfy the requirements of California Code of Civil Procedure section 430.41. (Dunn Decl., ¶ 6.)

Medical Negligence

The statute of limitations for a cause of action for medical negligence is either three years from the date of the injury or one year after the plaintiff discovers or should have discovered the injury, whichever occurs first. (Code Civ. Proc. § 340.5.)

Plaintiff alleges that Defendant’s doctor conducted a substandard medical examination and recorded unsupported information and findings in the medical records during an urgent care appointment on January 9, 2013. (Compl., pp. 1-2, 4.) Accordingly, the alleged negligent acts that caused Plaintiff’s harm are Defendant’s doctor’s failure to perform a proper exam and make accurate records of his findings on January 9, 2013. (Ibid.)

The Court agrees with Defendant that Plaintiff’s medical negligence cause of action is barred by the relevant statute of limitations. Even after construing the pleadings liberally, the latest date in which Plaintiff could have alleged this medical negligence cause of action would have been January 9, 2016. Plaintiff filed his complaint more than two and a half years later.

Accordingly, Plaintiff’s cause of action for medical negligence is barred by the statute of limitations set forth in California Code of Civil Procedure section 340.5.

Fraud

“The elements of [intentional] fraud . . . are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 (quotations and citation omitted).) A plaintiff must bring a cause of action for intentional fraud within three years of when the plaintiff either discovers or should have discovered the facts giving rise to the cause of action for intentional fraud. (Code Civ. Proc. § 338, subd. (d); Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-809.)

For a negligent misrepresentation, a plaintiff must prove there has been (1) a “misrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with the intent to induce another’s reliance on the fact misrepresented;” (2) “ignorance of the truth;” (3) justifiable reliance on the misrepresentation by the party to whom it was directed;” and (4) “resulting damage.” (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154 (quotations and citation omitted).) A plaintiff must bring a cause of action for a negligent misrepresentation within two years of when the plaintiff either discovers or should have discovered the facts giving rise to the cause of action for the negligent misrepresentation. (E-Fab Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1317-1319.)

Plaintiff alleges on page three of the complaint that Defendant is liable for “fraud misrepresentation.” Plaintiff states that the January 9, 2013 urgent care visit report included a variety of ailments that Plaintiff denied having, but Plaintiff denies being asked questions that would draw Plaintiff’s denials. (Motion, pp. 1-2.) When viewed liberally and in context, it can be inferred that Plaintiff alleges that these representations constituted fraud.

Defendant argues that Plaintiff either knew or should have known of any alleged fraud on the day of the January 9, 2013 urgent care visit because, as the complaint indicates, Plaintiff had experienced chronic problems dating two years back and Plaintiff was not referred to specialist. (Demurrer, p. 7:2-7:6.) The Court is unpersuaded. These facts do not indicate that Plaintiff was on notice of the facts giving rise to intentional fraud or a negligent misrepresentation. As such, the Court declines to find that the statute of limitations bars Plaintiff’s cause of action for intentional fraud or a negligent misrepresentation.

That being said, Plaintiff fails to plead other facts essential to a cause of action for either intentional fraud or a negligent misrepresentation. Namely, there are no factual allegations that Defendant’s doctor drafted the report with a knowledge of the falsity of the statements or with an intent to induce reliance, that Plaintiff relied on the report, or that Defendant’s doctor did not have a reasonable ground for believing the statements to be true.

As such, sufficient facts have not been plead to state a cause of action for either intentional fraud or a negligent misrepresentation.

Infliction of Emotional Distress

A plaintiff must bring a cause of action for intentional infliction of emotional distress within two years of when the plaintiff suffers severe emotional distress from the defendant’s outrageous conduct. (Wassmann v. South Orange County Community College District (2018) 14 Cal.App.5th 825, 852-853.) A plaintiff must bring a cause of action for negligent infliction of emotional distress within two years of when the injurious event. (Code Civ. Proc. § 335.1; Campanano v. California Medical Center (1995) 38 Cal.App.4th 1322, 1328-1330 (applying the prior statute of limitations for negligent infliction of emotional distress causes of action that provided a one-year limitations period).)

The Court need not consider whether Plaintiff has stated sufficient facts for a cause of action of intentional infliction of emotional distress because it is uncertain as to whether this cause of action is being alleged. The only indication that such a cause of action is being alleged is Plaintiff’s statement that his cause of action against Defendant is for “Infictory Emotional Distress.” Defendant is left to guess whether Plaintiff is alleging a cause of action for intentional infliction of emotional distress, a cause of action for negligent infliction of emotional distress, or seeking damages for mental injuries. As such, the complaint is uncertain as to what causes of action are being alleged relating to Plaintiff’s emotional distress.

Plaintiff alleges Defendant’s doctor’s failure to treat Plaintiff at the January 9, 2013 urgent care visit caused Plaintiff harm. (Compl., p. 4.) As such, Plaintiff had until January 9, 2015 to bring a cause of action for either negligent or intentional infliction of emotional distress. Plaintiff failed to do so. Thus, these claims are barred by their respective statutes of limitations.

Therefore, Plaintiff’s intentional and negligent infliction of emotional distress claims do not state sufficient facts to allege a cause of action and are barred by the relevant statutes of limitations.

Breach of Contract

Defendant argues that it is unclear whether Plaintiff indicated on the civil case cover sheet associated with Plaintiff’s complaint that Plaintiff is alleging a breach of contract. However, the civil coversheet filed with the Court on June 15, 2018 clearly does not indicate a breach of contract cause of action is alleged. The text of the complaint also does not indicate a breach of contract is alleged. As such, the Court declines to analyze Defendant’s argument regarding such a claim.

CONCLUSION

Defendant’s demurrer is SUSTAINED with 20 days’ leave to amend.

Defendant is ordered to give notice.