Case Name:   Deborah Ali v. Santa Clara Sports Therapy, et al.

 

Case No.:       1-14-CV-267221

 

Demurrer by Defendants Santa Clara Sports Therapy and Physical Rehabilitation Network to Complaint of Plaintiff Deborah Ali

 

On June 27, 2014, Plaintiff filed a complaint against Defendants Santa Clara Sports Therapy (“SCST”) and Physical Rehabilitation Network (“PRN”) asserting a single cause of action for general negligence.  She alleges that on July 9, 2012, while using therapy apparatus at SCST, “the apparatus became dislodged on mounting and came off ceiling and hit Plaintiff in the head [causing] a concussion and loss of memory and proper eyesight in left eye. Plaintiff is now prevented from driving and has to suffer expenses from home care.” (Complaint, ¶GN-1.)

 

 

On October 3, 2014, Defendants filed this demurrer to Plaintiff’s complaint. On October 22, 2014, Plaintiff filed opposition. On October 24, 2014, Defendants filed a reply brief.  On October 30, 2014, Plaintiff filed a “Response to Defendant’s Reply” which is not authorized by the Code of Civil Procedure or by leave of court and which the court has not considered.

 

Discussion

 

“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.)  Defendants contend Plaintiff’s complaint is barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.5, which states:

 

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. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.

 

For the purposes of this section:

 

(1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider;

 

(2) “Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

 

Defendants asserts that they come within the definition of “health care provider” since they provide physical therapy pursuant to Business and Professions Code sections 2600 et seq.  According to Defendants, for statute of limitations purposes, Plaintiff’s allegations fall squarely within the definition of “professional negligence” under Code of Civil Procedure section 340.5.  “Under that definition, the test is not whether the situation calls for a high or a low level of skill, or whether a high or low level of skill was actually employed, but rather the test is whether the negligent act occurred in the rendering of services for which the health care provider is licensed. When a seriously ill person is left unattended and unrestrained on a bed or gurney, the negligent act is a breach of the hospital’s duty as a hospital to provide appropriate care and a safe environment for its patients.” (Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 57; see also Bellamy v. Appellate Department (1996) 50 Cal.App.4^th 797 (for determining whether the complaint was timely, the claim arising from a fall off an x-ray table was considered professional negligence).)

 

According to Defendants, the negligent act occurred in the course of rendering professional services as Plaintiff alleges her injury occurred “while using therapy apparatus” on July 9, 2012, and Plaintiff knew of the injury on that date. Defendants contend that since Plaintiff did not file her complaint until more than one year later, the complaint is barred.

 

In opposition, Plaintiff concedes that Murillo and Bellamy “adhere to the intent of” section 340.5 (Opposition, at 5:16-17) and declines to distinguish either case.  Plaintiff argues instead that “more recent cases” show that the Murillo/Bellamy rule “is incorrect”.  (Id., at 5:17-18.)  However, the case on which Plaintiff principally relies in this regard, Flores v. Presbyterian Intercommunity Hospital (2013) 213 Cal.App.4th 1386, has been superseded by grant of review and is not citable. (See Cal. Rules of Court, rule 8.1115, subdivision (e)(1)—“an opinion is no longer published if the Supreme Court grants review.”)

 

Plaintiff also relies upon the decision in Johnson v. Chiu (2011) 199 Cal.App.4th 775 (Johnson), which does not address the statute of limitations. In Johnson, plaintiff Johnson brought a complaint against Dr. John T. Chiu for medical malpractice and negligent maintenance of the laser machine that malfunctioned during a skin treatment, causing her injury. Johnson asserted three causes of action: (1) medical malpractice against Dr. Chiu; (2) strict products liability against Doe defendants; (3) negligent maintenance against Doe defendants. Dr. Chiu filed a motion for summary judgment. “The day before plaintiff filed her opposition to the motion for summary judgment, she amended the  complaint to allege Chiu as one of the Does in the third cause of action for negligent maintenance.” (Johnson, supra, 199 Cal.App.4th at p. 778.)  The trial court treated the motion as one for summary adjudication and granted summary adjudication of the first cause of action, but denied with regard to the third cause of action. Dr. Chiu filed an answer to the third cause of action and filed a subsequent motion for summary judgment, which the court denied on the basis that Dr. Chiu did not carry his burden of proof. The matter went to trial and Dr. Chiu sought dismissal of the third cause of action by use of a motion in limine. The trial court granted the motion in limine and Johnson appealed.

 

On appeal, the Johnson court reversed. In explaining, the Johnson court distinguished Flowers, supra, 8 Cal.4th 992, a case where a patient fell off a gurney when a nurse left one of the guard rails down.  The plaintiff in Flowers brought claims for general negligence and premises liability.  The trial court in Flowers granted defendants summary judgment.  The appellate court in Flowers reversed finding professional negligence had been negated, but the pleadings were broad enough to encompass ordinary negligence as well.  The Supreme Court in Flowers reversed the appellate court.  “The Court of Appeal majority erroneously premised their result on a perceived conceptual distinction between ‘ordinary’ and ‘professional’ negligence, which in their view differentiates separate and independent theories of liability even when based on the same facts asserted by the same plaintiff.”  (Johnson, supra, 199 Cal.App.4th at pp. 781 – 782 citing Flowers, supra, 8 Cal.4th at pp. 996 – 997.)

 

The Johnson court distinguished Flowers on the basis that the negligence in Flowers consisted of one act (failure to raise a guardrail on a gurney) whereas the negligence in Johnson consisted of two separate acts (Dr. Chiu’s treatment of Johnson and Dr. Chiu’s failure to repair and maintain the laser machine).

 

Here, Plaintiff contends her allegations encompass two separate acts of negligence: (1) defendants’ negligent provision of therapeutic services and (2) defendants’ negligent maintenance of the apparatus.  It is Plaintiff’s position that the second act qualifies as ordinary negligence and would not be barred by Code of Civil Procedure section 340.5.

 

Plaintiff’s allegations do not presently consist of two separate and distinct acts of negligence.  Nowhere in the complaint does Plaintiff allege defendants negligently maintained the apparatus.  Plaintiff’s complaint alleges that “while using therapy apparatus[,] the apparatus became dislodged on mounting and came off ceiling and hit Plaintiff in the head cause [sic] a concussion and loss of memory and proper eyesight in left eye.”  Even if liberally construed, this allegation does not assert negligent maintenance.

 

Accordingly, the demurrer on the ground that the pleading does not state facts sufficient to constitute a cause of action, i.e., is barred by the statute of limitations, is SUSTAINED with 10 days’ leave to amend.