Filed 1/7/20 LaBarre v. Regents of the University of Cal. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

—-

JANET LABARRE,

Plaintiff and Appellant,

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA et al.,

Defendants and Respondents.

C088088

(Super. Ct. No. CV17366)

On October 27, 2015, defendant Scott Katzman, D.V.M., performed a laryngeal “tie-forward” surgery on plaintiff Janet LaBarre’s horse. On December 3, 2015, Dr. Katzman performed a second surgery to undo the first surgery. On March 14, 2017, LaBarre filed this action against the veterinarian and his employer, the Regents of the University of California. The trial court granted defendants’ motion for summary judgment on the basis that LaBarre’s causes of action were barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340, subdivision (c). Because LaBarre has failed to demonstrate any of her causes of action were not barred, we will affirm the judgment.

I. BACKGROUND

In September 2015, LaBarre brought her Arabian Palomino horse, Romeo, to the Veterinary Medical Teaching Hospital at the University of California, Davis for evaluation of the problem of food coming through his nostrils. Dr. Katman diagnosed the problem as dysphagia. Romeo was otherwise healthy. Katzman performed the tie-forward surgery on Romeo on October 27, 2015. The surgery made Romeo’s dysphagia dramatically worse. On November 17, 2015, LaBarre sent Katzman a text message: “Unfortunately Romeo’s tie[-]forward surgery seems to have failed. Despite your assurances that worst case scenario would be no benefit, it seems to be worse.” LaBarre and Katzman continued to correspond, and LaBarre stated she would “like this procedure reversed as soon as possible.” LaBarre said she “would expect this to be a no-charge procedure given the worst case scenario outcome we discussed was no change/no improvement.”

On November 23, 2015, Dr. Katzman wrote, “you have to understand though, like the tie[-]forward procedure, this may not fix [Romeo]. It may not even get him back to where he was before surgery. Hopefully it will. I’m gonna scope his throat before and after surgery, but I’ll cover the cost for that.” On the same day, LaBarre emailed another veterinarian, Dr. Miller: “Unfortunately the surgery failed to improve [Romeo] and in fact has made him dramatically worse despite Dr. Katzman’s assurances that worst case scenario was no change. He wants to perform a procedure now to undo the surgery and is now denying he said worst case scenario was no change!” LaBarre asked Dr. Miller whether she should “let them do this? [Romeo] is in danger of getting pneumonia with the amount of fluid and food now coming out of both nostrils. What a disastrous mess. I am just heartbroken I ever let them work on him when the original condition was so mild.” Dr. Miller responded, “[w]hat a nightmare. I have heard of this happening on some of these surgeries- and yes I absolutely think that it needs to be corrected surgically for Romeo to have some quality of life.” Dr. Miller suggested LaBarre take Romeo to a surgeon who does more upper airway surgeries and gave two recommendations.

On December 3, 2015, Dr. Katzman performed a second surgery to undo the tie-forward. This involved cutting the suture holding Romeo’s larynx in a more forward location.

Four days later, LaBarre emailed Dr. Miller again. LaBarre wrote, “You mentioned when we were talking at the barn that you’d heard of other tie-forward surgeries that had failed and caused worsened food infiltrating the nasal cavity. How would I track down some evidence for that happening? I did take Romeo back to have the cord cut to release the pressure. He is recovering again[,] but I think he’s been permanently ruined.” Dr. Miller responded, in part, “that is just a known fact about those surgeries.”

On February 19, 2016, LaBarre posted a video on the internet in which she described Romeo as “so ruined” and stated she would have to put him down if she could not get enough money to send him to a specialist. LaBarre said, “I’m in touch with a lawyer. I’m gonna be meeting with a lawyer to try and get at least restitution for what they did to him.”

On February 24, 2016, LaBarre emailed another veterinarian: “I had Romeo out to UC Davis where he underwent the dynamic scope and a small amount of food was observed leaking through his small palate while he ate. A vet there recommended a tie-forward procedure as a potential way to cure this with almost no downside risk. Would you offer an opinion on this?” The veterinarian responded, “It’s a pretty straightforward procedure – but it still requires general anesthesia and a rehab period of [about] 8 weeks – I haven’t had any fail but I know they can – it’s not terrible if they do fail the horses often do end up making noise in that situation. Is he having complications from the food leaking?”

LaBarre filed her original complaint in this action on March 14, 2017.

Defendants filed a motion for summary judgment with respect to LaBarre’s third amended complaint on the grounds that the causes of action therein—(1) veterinary negligence and (2) fraudulent inducement—were barred by the statute of limitations set forth in section 340, subdivision (c). Alternatively, defendants argued summary adjudication should be granted as to LaBarre’s second cause of action because there were no triable issues of fact to establish a cause of action for fraudulent inducement.

In support of her opposition to the motion, LaBarre submitted a declaration explaining, “[b]y February 2016, I believed it was likely Romeo had been ruined because of undisclosed risks of a properly performed procedure. However, I still did not believe that Dr. Katzman had acted below the standard of care in connection with his veterinary care of Romeo. I did not know or suspect that the procedure was not even medically indicated. I did not know that the second procedure had been performed negligently. From December 2016 through May 2016, I only believed that Romeo had received a medically indicated procedure that had failed, that the reversal had also failed, and that I had not been informed of risks accompanying a [medically] indicated and properly performed procedure. I did not begin to suspect otherwise until May 2016, and only discovered the facts regarding Dr. Katzman’s negligence after that.”

The trial court asked for supplemental briefing, explaining LaBarre “alleges multiple acts of veterinary malpractice, that defendants failed to seek informed consent and recommended surgery without determining an actual diagnoses requiring surgery, recommended a surgery inappropriate for the conditions found, and [did] not tak[e] appropriate remedial steps when it was apparent that the initial surgery failed. (Third Amended Complaint, ¶ 28.) Should the timeliness of [LaBarre]’s complaint be determined with respect to each individual act of alleged malpractice such that any lack of timeliness with respect to discovery of one act of wrongdoing does not bar a finding of timeliness with respect to any other act of malpractice? Alternatively, did [LaBarre]’s discovery that defendants failed to seek informed consent commence the running of the statute of limitations as to all acts of alleged malpractice?”

After the parties submitted supplemental briefing, and the court conducted a hearing, the court granted the motion: “Defendants have established that there is a complete defense to the first cause of action for veterinary negligence and the second cause of action for fraud in the inducement. [Citations.] The facts establish that [LaBarre] should have suspected that a type of wrongdoing had caused her injury before March 14, 2016. [Citation.] [¶] As the gravamen of both claims is the failure to correctly apprise [LaBarre] of the risks of surgery, the same statute of limitations bars [LaBarre]’s second cause of action for fraud in the inducement.” The court also granted two of defendants’ evidentiary objections.

The trial court entered judgment in favor of defendants, and LaBarre filed a timely appeal.

II. DISCUSSION

A. Standard of Review

We begin by summarizing several principles that govern the grant and review of summary judgment motions under section 437c.

“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; see also § 437c, subd. (c).) “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ ” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.)

A defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; see also § 437c, subd. (p)(2).) The defendant “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) Once the defendant meets its initial burden, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Ibid.)

We must also keep in mind “ ‘[a] judgment or order of the lower court is presumed correct’ ” and “ ‘error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “Under this principle, [appellant] bear[s] the burden of establishing error on appeal, even though [respondent] had the burden of proving its right to summary judgment before the trial court. [Citation.] For this reason, our review is limited to contentions adequately raised in the [appellant’s] briefs.” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 645.) In particular, “ ‘[t]he reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.’ [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal. [Citation.] If no citation ‘is furnished on a particular point, the court may treat it as waived.’ ” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Additionally, “a separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion. In an appellate brief, an assertion of fact should be followed by a citation to the page(s) of the record containing the supporting evidence,” not merely to the separate statement. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.) With these principles in mind, we will turn to the issues raised by LaBarre.

B. First Cause of Action

LaBarre argues the trial court erred in concluding her first cause of action was barred because there was a triable issue of fact regarding when she discovered the first surgery was not medically indicated and the second surgery was negligently performed. We note as a threshold matter that this argument suffers from a simple and fatal defect. LaBarre never cites the operative complaint. As we have explained, the pleadings “ ‘set the boundaries of the issues to be resolved at summary judgment.’ ” (Conroy v. Regents of University of California, supra, 45 Cal.4th at p. 1250.) LaBarre cannot demonstrate the trial court erred in dismissing a cause of action based on the statute of limitations without showing us what the basis of the cause of action actually was.

Even if we were to overlook this defect temporarily, LaBarre admits the statute of limitations for her first cause of action is set forth in section 340, subdivision (c). It provides that “[w]ithin one year [a plaintiff must commence] [¶]. . . [¶] [a]n action . . . against any person . . . who engages in the practice of veterinary medicine . . . , for that person’s neglect resulting in injury or death to an animal . . . in the course of the practice of veterinary medicine on that animal . . . .” (§ 340, subd (c).)

The general rule is that an action accrues on the date of injury. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 (Jolly).) There is no dispute that Romeo’s injury arose more than a year before LaBarre filed her complaint. LaBarre argues that, under the discovery rule, her first cause of action did not accrue until she was aware of the cause of the injury to Romeo. In fact, under this exception to the general rule of accrual, it is not necessary that a plaintiff be aware of “the specific causal mechanism by which he or she has been injured.” (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1298.) Rather, under the discovery rule, “the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly, supra, at p. 1110.) “Wrong” is not used in a technical sense, “but rather in accordance with its ‘lay understanding.’ ” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398.) “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. 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, supra, at p. 1111.) Thus, “[t]he discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) In other words, “a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light.” (Id. at p. 808.)

“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.” (Jolly, supra, 44 Cal.3d at p. 1112.)

Here, the uncontradicted facts are susceptible of only one legitimate inference—LaBarre suspected her horse had been injured by wrongdoing by February 2016. By February 19, 2016, LaBarre thought her horse was ruined and that she could get restitution. In her declaration, LaBarre states she only thought it was likely Romeo was ruined because of undisclosed risks of a properly performed procedure. This is a type of wrongdoing. In fact, it is a type of professional negligence. (Cobbs v. Grant (1972) 8 Cal.3d 229, 240-241; Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 349.) The authorities relied upon by LaBarre are unavailing because the record is clear that she suspected wrongdoing caused her horse’s injuries by February 2016. The question posed by this case—and not the authorities upon which LaBarre relies—is whether that suspicion of wrongdoing is sufficient to bar her cause of action entirely. As to that question, LaBarre essentially seeks to avoid application of the statute of limitations on the grounds that she was not aware of other types of negligence (that may or may not have been alleged in the operative complaint): But “the essential inquiry is when did [the plaintiff] suspect [the defendant] was negligent, not when did she learn precisely how he was negligent.” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824.)

Norgart v. Upjohn Co., supra, 21 Cal.4th 383 is instructive. A woman’s father suspected his daughter’s suicide was attributable to some other person or cause. At around the time of her death, “he ‘thought’ that ‘there had to be some reason, other than just herself, that would cause her to commit suicide,’ that ‘there had to be some other force or action upon her that caused her to commit suicide . . . .’ He therefore impliedly admitted . . . that he ‘suspect[ed] . . . that someone ha[d] done something wrong’ to cause her death.” (Id. at p. 406.) The father later believed either the woman’s husband was abusing her or her psychiatrist had been professionally negligent in her care. (Ibid.) The court held that the decedent’s family’s causes of action for wrongful death accrued at least by this point even though they had not focused on defendant manufacturer specifically. (Id. at pp. 405-406.) Norgart compels the conclusion that LaBarre’s first cause of action accrued by February 2016 even though her legal theory for recovery may have been expanding.

LaBarre cites to Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384 (Kitzig), but that case differs in significant respects from the present one. The court in Kitzig held the statute of limitations set forth in section 340.5 did not begin to run on the plaintiff’s claims against her former dentist when she sought a second opinion while continuing her dentist-patient relationship with the defendant. (Kitzig, supra, at pp. 1387, 1391.) The plaintiff was “ ‘suspicious’ ” the defendant may have done something wrong because she had a hole in her sinus, and water and bubbles were coming out of it. (Id. at p. 1392.) A second dentist examined plaintiff and reassured her the hole was not a significant issue and that everything was fine. (Ibid.) The court of appeal explained these suspicions did not pertain to the injury for which the plaintiff later sought recovery. (Ibid.) Additionally, the court held “it is not the law that a person who obtains a second medical opinion while under the care of her personal physician and the second physician confirms that her physician is ‘doing nothing wrong’ and then she continues her treatment with her physician, is under an obligation—as a matter of law—to bring suit within one year. Although the subjective prong of the discovery rule requires merely a suspicion ‘ “that someone has done something wrong” to him’ [citation], a patient ‘is fully entitled to rely upon the physician’s professional skill and judgment while under his care, and has little choice but to do so.’ ” (Id. at p. 1393.) In the instant case, LaBarre has failed to demonstrate she pled a cause of action related to a wholly separate injury from the one that raised her suspicions. Additionally, LaBarre sought multiple second opinions, but they did not alleviate her suspicions. Her declaration is clear that her suspicions persisted, and her arguments on appeal are based on the scope of those suspicions. Kitzig is inapposite.

LaBarre’s reliance on Kilburn v. Pineda (1982) 137 Cal.App.3d 1046 (Kilburn) is equally misplaced. In that action for medical malpractice, the superior court found the statute of limitations set forth in section 340.5 began to run on the date the patient discharged her doctor, who had performed several ineffectual operations to relieve her back pain. (Kilburn, supra, at p. 1048.) The evidence showed the operations were more painful than the doctor had indicated, the doctor told the patient that he should have fused her back, and the patient discharged the doctor after he refused to send an ambulance or admit her to the hospital. (Id. at pp. 1048-1049.)

The appellate court reversed, concluding there was “insufficient evidence to support the finding that [the patient] knew, or should have known, of the cause of her injuries earlier than a year before the filing of this case.” (Kilburn, supra, 137 Cal.App.3d at p. 1050.) The court explained, in part, that the patient’s pain, after being told the procedure would be painless, did not support the finding the patient was on notice of malpractice by her doctor because even where an operation leads to rare or unforeseen injuries, malpractice will not be inferred. (Id. at p. 1049.)

Romeo suffered from injuries that LaBarre did not foresee, but, unlike in Kilburn, the record is clear that LaBarre thought this formed the basis for an action against defendants. Kilburn is also a pre-Jolly case. It focuses on when the plaintiffs “had actual or constructive knowledge of malpractice.” (Kilburn, supra, 137 Cal.App.3d at p. 1050.) Here we are concerned with only the suspicion of wrongdoing. (Jolly, supra, 44 Cal.3d at p. 1110.) Further, we note that none of cases on which Kilburn relied involved a statute of limitations defense. Instead, their issue was whether the evidence was sufficient to support liability. (Kilburn, supra, at p. 1049.) That is a different question than whether a suspicion of one type of wrongdoing bars a cause of action based on another type of wrongdoing.

It is true that “a diligent plaintiff’s investigation may only disclose an action for one type of tort (e.g., medical malpractice) and facts supporting an entirely different type of tort action (e.g., products liability) may, through no fault of the plaintiff, only come to light at a later date. Although both claims seek to redress the same physical injury to the plaintiff, they are based on two distinct types of wrongdoing and should be treated separately in that regard.” (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at pp. 814-815.) However, even where this concept applies, “[a] plaintiff seeking to utilize the discovery rule must plead facts to show his or her inability to have discovered the necessary information earlier despite reasonable diligence.” (Id. at p. 815.) LaBarre provides no indication she did so. She has failed to demonstrate the trial court erred in dismissing her first cause of action.

C. Second Cause of Action

“To determine the statute of limitations which applies to a cause of action it is necessary to identify the nature of the cause of action, i.e., the ‘gravamen’ of the cause of action. [Citations.] ‘[T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations under our code.’ ” (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22-23.)

LaBarre argues “[t]he trial court wrongly found that the gravamen of the claim for fraudulent inducement was malpractice.” She does not cite the trial court’s order in support of this ruling. It states more particularly that “the gravamen of both claims is the failure to correctly apprise [LaBarre] of the risks of surgery.” Regardless, LaBarre again fails to cite to the operative complaint in support of her argument, and again this oversight is fatal to her ability to demonstrate error on appeal. Put differently, she cannot persuade us the trial court incorrectly assessed the gravamen of a cause of action without any reference to the cause of action.

The only citations to the record LaBarre offers are citations to her own separate statement of facts in the context of arguing she only agreed to the surgery in reliance on Dr. Katzman’s false assurances that it was essentially risk free. The citations she provides do not fully support her statements and are also not to any underlying evidence. From this, we cannot conclude either that LaBarre’s second cause of action has any merit or that the trial court’s determination that the gravamen of the claim is the failure to correctly apprise LaBarre of the risks of surgery is erroneous. The claim she describes is one for malpractice. (See Tell v. Taylor (1961) 191 Cal.App.2d 266, 271 [“even though the plaintiff alleges false representations on the part of the physician or fraudulent concealment, our courts have always treated the action as one for malpractice”]; see also Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 227 [malpractice statute of limitations applies to allegation of deceit in physician’s failure to disclose the nature and extent of plaintiff’s injuries].) LaBarre’s protestations that Katzman was “acting in a different capacity when he made misrepresentations to LaBarre to induce her to allow [him] to perform surgery on Romeo” are unavailing. Whether or not he was also acting in his capacity as a professor appears to be irrelevant to determining the gravamen of the second cause of action. Katzman’s motivation to commit fraud would not alter the nature of the cause of action or prevent his statements concerning the risks of surgery from being made in the course of the practice of veterinary medicine. LaBarre has failed to demonstrate the trial court erred in dismissing her second cause of action.

D. Evidentiary Rulings

LaBarre argues we should reverse the two instances in which the trial court sustained one of defendants’ evidentiary objections. As to the first ruling, LaBarre’s opening brief cites only the ruling and not the underlying evidence or defendants’ objections. This is insufficient to demonstrate error. As to the second ruling, LaBarre’s opening brief again fails to cite defendants’ objections, but she does cite the underlying evidence. Regardless, because this evidence has no bearing on our resolution of the appeal, we need not reach the issue of whether the evidence was properly excluded. (Swanson v. State Farm General Ins. Co. (2013) 219 Cal.App.4th 1153, 1165, fn. 11.)

III. DISPOSITION

The judgment is affirmed. Respondents the Regents of the University of California and Scott Katzman shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

RENNER, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

DUARTE, J.