Case Number: BC662004 Hearing Date: June 15, 2018 Dept: A

Facciano v Facciano

MOTION FOR SUMMARY JUDGMENT

Calendar:

4

Case No.:

BC662004

Hearing Date:

6/15/18

Action Filed:

5/18/17

Trial Date:

Not set

MP: Defendant Jennifer Vineyard, D.O.

RP: Plaintiff Joseph F. Facciano, Jr.

SUMMARY OF COMPLAINT:

Plaintiff Joseph J. Facciano, Jr. (“Plaintiff”) brings this action on behalf of his mother Blanca R. Facciano, who is deceased (“Decedent”). Plaintiff alleges that Decedent, an elder adult, was a patient at Defendant Windsor Gardens Healthcare (“Windsor”) from February 22, 2016 to March 2, 2016; and was a patient of Defendant Trinity Care Hospice (“Trinity”) from March 2, 2016 up to her death on March 5, 2016. Plaintiff alleges that Defendants and their employees/agents failed to meet the standard of care with respect to Decedent. As to Defendants Andrew and Pauline Facciano (Plaintiff’s siblings), Plaintiff alleges that they made a healthcare decision to transfer Decedent into hospice and thereafter administered lethal doses of morphine to her.

The complaint was filed on May 18, 2017. The first amended complaint was filed December 20, 2017. The second amended complaint (“SAC”), filed March 15, 2018, alleges causes of action for:

(1) wrongful death by negligence all Defendants except Andrew and Pauline Facciano;

(2) survival action by negligence all Defendants except Andrew and Pauline Facciano;

(3) lack of informed consent all Defendants except Andrew and Pauline Facciano;

(4) medical battery all Defendants except Andrew and Pauline Facciano;

(5) negligence against Andrew and Pauline Facciano;

(6) elder abuse against Andrew and Pauline Facciano;

(7) fraudulent concealment against Andrew and Pauline Facciano;

(8) constructive fraud against Andrew and Pauline Facciano;

(9) breach of fiduciary duty against Andrew and Pauline Facciano;

(10) wrongful death against Andrew and Pauline Facciano; and

(11) conspiracy against Andrew and Pauline Facciano.

RELIEF REQUESTED:

Dr. Vineyard moves for summary judgment on the entire action brought against her on the ground that the action is barred by the statute of limitations set forth in CCP §340.5.

DISCUSSION:

CCP §364 provides, “No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” (CCP §364(a).) “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (CCP §364(d).)

CCP §340.5 provides the statute of limitations period against healthcare providers:

“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 support of the motion, Dr. Vineyard provides evidence that on March 4, 2016 at 12:00 p.m., Plaintiff visited Decedent and noted she was doing fine, but received a phone call from Andrew Facciano at 7:00 p.m. that Decedent was about to die. (Fact 1.) On March 5, 2016 at 1:00 a.m., Andrew Facciano advised Plaintiff over phone that Decedent had died. (Fact 2.)

On February 22, 2017, Plaintiff’s counsel sent a Notice of Intent to File Action for Professional Negligence to “Jennifer Vineyard, M.D., 4101 Torrance Blvd., Torrance, CA 90503.” (Fact 2.) Dr. Vineyard states that she has not used an address listed at 4101 Torrance Blvd., Torrance, CA 90503 and it has never been her business address. (Fact 4.) She states that this appears to be the address for Providence Little Company of Mary Medical Center, of which Dr. Vineyard has never held staff privileges. (Fact 5.) Rather, Dr. Vineyard’s listed address with the Osteopathic Medical Board of California is Providence Trinity Care at 5315 Torrance Blvd., Suite B-1, Torrance, CA 90503. (Fact 3.)

Pursuant to CCP §340.5, the time for the commencement of this action ran 1 year after Plaintiff discovered the injury. As Decedent passed away on March 5, 2016 and Plaintiff was aware of the injury that date, Plaintiff had 1 year to commence this action (i.e., by March 5, 2017). The action was filed on May 18, 2017 (Fact 6), which is untimely unless the statute of limitations period has been extended.

The period to commence an action may be extended 90 days from the service of the notice of intention to commence an action. (See CCP §364.) The Notice was sent to Dr. Vineyard on February 22, 2017 at 4101 Torrance Blvd., Torrance, CA 90503. If proper, this would extend the time to commence this action to May 23, 2017. However, Dr. Vineyard declares that she has never used this address for the Osteopathic Medical Board of California or any other source because it has never been her business address.

Accordingly, Dr. Vineyard has upheld her initial burden in summary judgment showing that the statute of limitations on Plaintiff’s claim against her expired and she was not properly served with the Notice such that the period to bring this lawsuit against her was not extended. The burden shifts to Plaintiff to raise a triable issue of material fact.

In opposition, Plaintiff relies on Derderian v. Dietrick (1997) 56 Cal.App.4th 892, 900 to argues that he can comply with the CCP §364 notice requirement by relying on the patient’s firsthand knowledge of visits to the physician’s office, current listings, and advertisements in professional and telephone directories and available on-line legal and medical research providers. These are all considered generally reliable sources for determining where section 364 notice may be directed. (Id.) However, any doubt about those or other sources may be resolved by resorting to the public record of California’s medical board where physician’s current addresses are maintained. (Id.; see also Selvidge v. Tang (2018) 20 Cal.App.5th 1279, 1284 [stating that when a plaintiff mails a notice of intent to file an action to the address a medical professional provided to the medical board for the purposes of receiving mail, he or she has provided adequate notice].)

Plaintiff provides evidence that he found the 4101 Torrance Blvd. address for Dr. Vineyard’s place of business online using the DocFindy website. (Pl.’s Fact 4-5.) However, Plaintiff fails to provide any facts regarding the trustworthiness of this website, the purpose of the website, and/or whether this constitutes Dr. Vineyard’s online advertisement to the public.

Plaintiff also argues that his process server, Carlos Canas, had difficulty serving Dr. Vineyard with the summons and complaint. Canas states that he attempted to serve Dr. Vineyard at multiple addresses, including 5315 Torrance Bvld. and 4101 Torrance Blvd., but was told she no longer worked at either of these locations. (Opp. at Ex. 2 [Carlos Canas Decl.], Ex. 2-A.) However, difficulty of service of the summons and complaint has no bearing on service of the notice of intention to commence an action pursuant to CCP §364. The Court also notes that Canas attempted to serve Dr. Vineyard around July and August of 2017, which is months after the CCP §364 Notice was purportedly served on Dr. Vineyard by mail in February 2017. Thus, Canas’ declaration regarding service of the summons and complaint is irrelevant and does not raise a triable issue of material fact regarding whether the CCP §364 Notice was properly served.

Rather, as stated in Derderian, any doubts about a physician’s address may be resolved by resorting to the public record of California’s medical board. Dr. Vineyard declares that she has used the address 5315 Torrance Blvd., Ste. B-1, Torrance CA 90503 since or before February 22, 2017, which is the address listed in public record via the Osteopathic Medical Board of California website. (Vineyard Decl., ¶2.) Plaintiff has not raised a triable issue of material fact showing otherwise.

Plaintiff’s next argument is that he took “adequate steps” to achieve actual notice, as described in Selvidge v. Tang (2018) 20 Cal.App.5th 1279. In Selvidge, the Court of Appeal found that plaintiffs took adequate steps to achieve actual notice on physician when they mailed the notice to the address defendant identified to the medical board. (Supra, 20 Cal.App.5th at 1286.) CCP §364(c) states that notice may be served in a manner prescribed by Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 of the Code of Civil Procedure. Courts have presumed actual notice when a plaintiff mailed a notice of intent to the defendant in strict compliance with CCP §1013’s mailing provisions. (Id. at 1284.) Here, Plaintiff served the Notice on Dr. Vineyard by mail, but at an address that was not listed on the medical board. (See Mot. at Ex. 5.) This does not constitute “adequate steps” to achieve actual notice as contemplated by Selvidge.

For the reasons above, Plaintiff has not raised a triable issue of material fact regarding whether he properly served the Notice of Intent to File Action on Dr. Vineyard. Thus, where the “[defendant] doctor[] did not receive actual notice pursuant to section 364, subdivision (a), [plaintiff] cannot take advantage of the 90-day extension period provided by section 364, subdivision (d).” (Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1560.) This is because CCP §336(a) is intended to promote pre-litigation settlement, which can only be effectuated if the healthcare provider received actual notice (id.)—in this case, Dr. Vineyard did not receive actual notice.

Thus, the Court will grant the motion for summary judgment as Dr. Vineyard has upheld her initial burden in summary judgment and Plaintiff has failed to raise a triable issue of material fact.

RULING:

Grant the motion for summary judgment of Defendants Dr. Vineyard.