Case Name: Tabiolo, et al. v. County of Santa Clara, et al.
Case No.: 2015-1-CV-282838

This is a medical malpractice case initiated by plaintiffs Rischel Tabiolo (“Rischel”), Justine Tabiolo (“Justine”), and Renee Tabiolo (collectively “Plaintiffs”) against defendants County of Santa Clara (“County”), Santa Clara Valley Medical Center (“SCVMC”), Michael Jones, M.D. (“Jones”), Marcelina Behnam Curry, M.D., Carl Kirsch, M.D., Angeline Joscon, M.D. (“Joscon”), and Hwa Te Anderson Tsai, M.D (collectively “Defendants”).

According to the complaint (“Complaint”), Julio Tabiolo (“Decedent”) went to SCVMC on April 3, 2014 to receive medical care for generalized body aches and limited range of motion. (Complaint, ¶ 9.) Renee Tabiolo (“Renee”), Decedent’s widow, informed Jones and Joscon, his treating physicians at that time, that he experienced whiteness of his hands and feet earlier that day. (Ibid.) Despite these symptoms, Jones and Joscon diagnosed Decedent with psoriatic arthritis, prescribed him a steroid, and sent him home. (Id. at ¶ 10.)

The next day, Decedent returned to SCVMC and complained of leg pain, arm pain, and extremity weakness. (Complaint, ¶ 11.)
Decedent stated his muscle pain worsened after taking the steroid and his hands had turned white again. (Ibid.) Additionally, his bilateral rectus muscles were extremely weak and he was unable to ambulate. (Ibid.) SCVMC admitted Decedent for further evaluation. (Ibid.) Decedent’s condition was unstable and progressively declined. (Id. at ¶ 12.) Defendants ordered Decedent to undergo an MRI scan, during which he went into cardiac arrest. (Ibid.) His condition worsened thereafter, and he died on April 9, 2014. (Ibid.)

At the time of Decedent’s death, Plaintiffs had no reason to suspect Defendants’ negligence attributed to his death. (Complaint, ¶ 13.) Plaintiffs only suspected wrongdoing on October 9, 2014, after they obtained Decedent’s medical records and had them reviewed by an outside physician, who informed them his death was a result of Defendants’ negligence. (Ibid.)

On April 9, 2015, “[c]laims for medical malpractice against defendants were filed with Santa Clara County on behalf of plaintiffs[.]” (Complaint, ¶ 14.) That same day, Plaintiffs filed an application to present a late claim with the County, explaining they had no reason to suspect negligence until after October 9, 2014. (Ibid.) On April 17, 2015, “defendants” sent Plaintiffs a notice of return without action, declining to accept or deny the medical malpractice claim for failure to submit them within six months of Decedent’s death, and a notice of denial of application to present the late claim. (Id. at ¶ 15.)

Plaintiffs, who are family members of Decedent, assert three causes of action for wrongful death, “survival action,” and negligent infliction of emotional distress.

Defendants now move for summary judgment of the Complaint or, in the alternative, summary adjudication of their seventeenth affirmative defense, failure to comply with the Government Claims Act.

I. Objections

In opposition, Plaintiffs filed written objections to portions of Defendants’ evidence. California Rules of Court, rule 3.1354 requires a party submitting written evidentiary objections to submit them with a proposed order, which must include a place for the court to indicate if it sustained or overruled each objection and a place for the signature of the judge. Plaintiffs failed to comply with this rule as they did not submit a proposed order. For that reason alone, the Court need not rule on the objections. (See Vineyard Spring Estates v. Superior Court (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].) Further, even assuming the evidence is admissible, Defendants fail to satisfy their burden in proving the claim is untimely for the reasons stated below. Therefore, the Court declines to rule on Plaintiffs’ objections.

II. Summary Judgment

A. Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit[.]” (Code Civ. Proc., § 437c, subd. (a)(1).) An action has no merit if the defendant can show one or more of the elements of a cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (o)(1)-(2).) This is traditionally accomplished by presenting evidence that negates “a necessary element of the plaintiff’s case.” (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334.) The defendant may also demonstrate that an essential element cannot be established by presenting “evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.)

A defendant moving for summary judgment bears the initial burden of showing the action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2); see also Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132.) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.” (Ibid.; see also Code Civ. Proc., § 437c, subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
B. Discussion
Defendants argue the instant action is barred by Plaintiffs’ failure to comply with the six-month claim presentation deadline set forth in Government Code section 911.2.

The Government Tort Claims Act (the “Tort Claims Act”), Gov. Code section 810, et seq., establishes certain conditions precedent to the filing of a lawsuit against a public entity. (Williams v. Horvath (1976) 16 Cal.3d 834, 842.) Under the Tort Claims Act, a person may not sue a public entity for death or for injury to person unless he or she first presented a written claim to the public entity within sixth months following the accrual of the claim. (Gov. Code, § 911.2; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) The claims asserted in the Complaint are subject to this requirement as they are predicated on Decedent’s death.

“The date of accrual of a cause of action marks the starting point for calculating the claims presentation period.” (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 508; Gov. Code, § 901.) “Accrual of the cause of action for purposes of the government claims statute is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants.” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208-209.) Code of Civil Procedure section 340.5 (“Section 340.5”) establishes the limitations period for “any action for injury or death against a health care provider based upon such person’s alleged professional negligence.” The statute of limitations commences “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.” (Code Civ. Proc., § 340.5.) It is well established that the term “injury” as used in Section 340.5 means “both a person’s physical condition and its negligent cause.” (Davis v. Marin (2000) 80 Cal.App.4th 380, 385.)

In the Complaint, Plaintiffs plead the rule of delayed discovery, which is codified in Section 340.5, asserting that they did not discover Defendants’ purported negligence until October 9, 2014, when a physician reviewed Decedent’s medical records. (Complaint, ¶ 13.) Under the rule of delayed discovery, 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 … 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 fact to find her.

(Jolly v. Eli Lilly Co. (1988) 44 Cal.3d 1103, 1110-1111.) A plaintiff who suspects 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 the cause of action when the investigation would have brought such information to light.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808-809.) Critically, “a person need not know of the actual negligent cause of an injury; the mere suspicion of negligence suffices to trigger the limitation period.” (Knowles v. Superior Court (2006) 118 Cal.App.4th 1290, 1296, original italics (“Knowles”).)

Defendants present several alternative dates upon which the causes of action accrued: April 16, 2014, May 4, 2014, May 6, 2014, June 17, 2014, June 27, 2014, and September 12, 2014. Defendants argue that since the latest possible day the causes of action could have accrued was September 12, 2014, Plaintiffs were required to present it no later than six months after that date or February 12, 2015. Defendants state Plaintiffs did not present their claim until April 9, 2015. Consequently, Defendants contend the claims were not timely submitted. Defendants argue they are thus entitled to summary judgment.

As a threshold matter, in opposition, Plaintiffs contend the date on which the claim accrued is an issue of fact for the jury and should not be decided on summary judgment. In support, Plaintiffs cite three cases in which the appellate court stated summary judgment of the complaint was not proper in those circumstances. For instance, in Enfield v. Hunt (1979) 91 Cal.App.3d 417, the court observed that “[w]hen there has been a belated discovery of the cause of action . . . ., [t]he drastic remedy of summary judgment may not be granted unless reasonable minds can draw only one conclusion from the evidence.” (Enfield v. Hunt (1979) 91 Cal.App.3d 417, 419-420.) The court determined in that instance that reasonable minds could differ as to whether the evidence reflected reasonable diligence. (Id. at pp. 423-424.) Thus, it held summary judgment was inappropriate. (Ibid.) As such, the court did not hold that courts are precluded from evaluating accrual on summary judgment. Moreover, any number of cases have been disposed of on summary judgment based on the statute of limitations or Tort Claims Act. (See, e.g., Torres v. County of Los Angeles (1989) 209 Cal.App.3d 325, 337; NBC Universal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1232-34.) In any event, Defendants’ arguments that the claim accrued prior to any of their proposed dates are meritless for the reasons stated below.

1. April 16, 2014

Defendants contend that by April 16, Plaintiffs knew the following facts: (1) Justine thought the diagnosis of arthritis was “strange” (UMF No. 2); (2) Decedent’s condition worsened and Justine thought her mother communicated the condition was “more than just arthritis” (UMF No. 4); (3) Renee was told Decedent died of sepsis (UMF No. 12); (4) Renee stated “white palms are a cardinal sign of sepsis”; (5) later, in a medical grievance letter, Renee stated white palms are a sign of sepsis and they were not given the proper attention (UMF No. 52); (6) Plaintiffs suspected a connection between the removal of support or intravenous fluid (“I.V.”) during the MRI and Decedent’s cardiac arrest; (7) Riel Sarno, M.D. (“Dr. Sarno”), Renee’s brother, suspected SCVMC overlooked something during the April 3 hospital visit (UMF No. 7); and (8) based on her recollection of the second hospital visit, Renee believed SCVMC did not timely administer insulin to Decedent. Based on these facts, Defendants assert Plaintiffs suspected negligence by April 16.

As aptly stated by Plaintiffs in opposition, these facts do not reflect that each plaintiff had reason to suspect negligence. First and foremost, there are three individual Plaintiffs in this action and the evidence does not demonstrate all three shared the same knowledge of certain facts. The Court will thus address the knowledge of the three Plaintiffs separately.

As to Renee, Defendants misstate what the evidence shows she knew or suspected as of April 16. For example, Defendants insist information in a grievance letter authored by Renee on October 30, 2014 establishes she knew white palms were a sign of sepsis and SCVMC incorrectly administered insulin prior to April 16. (See Bisbee Decl., Exh. N.) However, the letter does not state when Renee discovered that information. Instead, the letter merely reflects her conclusions in October 2014, after she consulted a medical professional, as to what occurred during Decedent’s emergency visits. Thus, the grievance letter does not establish she knew white palms were a sign of sepsis or that insulin was incorrectly administered prior to April 16. In addition, there is no evidence reflecting Dr. Sarno told Renee prior to April 16 of his suspicions as to what occurred during Decedent’s emergency. As such, the fact Dr. Sarno had any suspicions does not mean Renee shared them.

The evidence presented actually establishes that prior to April 16 Renee: (1) communicated information to Justine, which led her to understand the condition was more than arthritis (UMF No. 4); (2) knew Decedent died from sepsis (UMF No. 12); (3) was understood by Justine to say white hands are a cardinal sign of sepsis; and (4) communicated to Rischel information about Decedent’s condition, which led her to believe a lack of support or lack of IV caused him to become unstable (UMF No. 21).

There is no evidence demonstrating Renee suspected negligence prior to April 16. The fact Renee knew Decedent died of sepsis, and not arthritis, does not mean she suspected any wrongdoing. Further, it is unclear what Renee actually believed as the testimony is from her daughters and based on their impressions of what she communicated. The testimony reflecting Decedent’s condition was not arthritis and that there may have been a lack of support during the MRI is from the depositions of Justine and Rischel, not Renee. Thus, the evidence reflects the daughter’s impressions of Renee’s knowledge. There is no cited testimony from Renee herself as to what suspicions she had about Defendants’ wrongdoing at this time. It is therefore unclear what she knew and whether she suspected a basis for negligence at this point.

While the facts relating to Renee’s purported knowledge are scant, the facts relating to the knowledge of Rischel and Justine are even more meager. With respect to Rischel, she testified she was curious as to what happened and whether the lack of “support” during the MRI caused Decedent to be unstable based on information conveyed by her mother. (UMF Nos. 21-22.) As to Justine, the evidence represents she thought it was strange Decedent had arthritis. (UMF No. 2.) Being curious about the cause of Decedent’s death and thinking the diagnosis is strange, without nothing more, do not establish that both individuals suspected Defendants acted negligently in treating their father.
In sum, Defendants fail to show Plaintiffs suspected wrongdoing prior to April 16.

2. May 4, 2014

Defendants next argue the claim accrued by May 4, 2014. As to Renee, Defendants contend she requested Decedent’s medical records to see what “was supposed to be done” on her brother’s advice. (See UMF Nos. 25, 28.) However, requesting the medical records and asking her brother to examine them does not establish Renee suspected Defendants’ negligence. Renee stated she requested the records because she “wasn’t sure how they did things in the hospital” and thought “down the road [she] might look at it.” (Bisbee Decl., Exh. A, p. 182: li. 21- p. 183: li. 16.) There is no evidence suggesting she requested the records because she suspected negligence. With respect to Rischel, Defendants present testimony stating she reviewed a textbook around one month after Decedent’s death to learn what sepsis is and how it is treated. (UMF No. 24.) A desire to learn about the illness that killed her father does not represent she suspected negligence or any wrongdoing on the part of Defendants. Defendants present no additional evidence reflecting Justine found out any additional facts as to her father’s death. Therefore, Defendants do not establish Plaintiffs suspected wrongdoing by May 4.
3. May 6, 2014
Defendants assert if the claim did not accrue by May 4, it accrued by May 6. Defendants point to the fact Renee picked up Decedent’s medical records on May 5 and verified they included all “dates” and “tests.” (UMF Nos. 34-35.) Defendants contend Renee already had all of the facts forming the basis for this cause of action, i.e. knowledge that Decedent’s hands were white, and thus the review of the medical records would have revealed medical negligence. This argument is not well-taken. The testimony presented by Defendants reveals Renee testified she reviewed the medical records when she picked them up in order to insure none were missing. (See UMF No. 34.) There is no testimony reflecting she read all the records at that instant or in detail to lead her to suspect negligence. In addition, there are no new facts introduced relative to the knowledge of Justine or Rischel. Thus, Defendants fail to establish all three Plaintiffs suspected negligence as of May 6.

4. June 17, 2014

Defendants alternatively contend the claim accrued by June 17 because, by that date, Dr. Sarno received Decedent’s medical records. (UMF No. 40.) Defendants, however, do not explain why this fact establishes Plaintiffs’ suspicion of wrongdoing. Instead, Defendants only state Dr. Sarno need not have actually reviewed the records by that date because an expert opinion is not necessary to trigger accrual so long as the plaintiff suspects wrongdoing. While it is true an expert opinion is not necessary for a malpractice claim to accrue (see Knowles, supra, 118 Cal.App.4th at 1300), Defendants still do not establish Plaintiffs suspected wrongdoing in the first instance. The fact Dr. Sarno received the medical records does not speak to Plaintiffs’ suspicion of negligence. As such, Defendants do not establish Plaintiffs suspected negligence as of June 17.

5. June 27, 2014

For context, Dr. Sarno was on vacation sometime between June 17 and June 27. Defendants contend the causes of action accrued by June 27 because, when Dr. Sarno returned from his trip, he learned Plaintiffs had “more questions” about SCVMC’s care. Defendants cite to testimony from Dr. Sarno in support. However, Defendants misstate Dr. Sarno’s testimony. Dr. Sarno specifically testified that at some point in time, he told Renee it was hard for him to offer an opinion as to whether Decedent should have been treated differently. (Bisbee Decl., Exh. C, p. 90: lis. 3-13.) Dr. Sarno could not remember when that conversation took place or what was exactly said. (Ibid.) In addition, Defendants state “Plaintiffs” had more questions, but the testimony reveals Dr. Sarno was only speaking about a conversation he had with Renee. Rischel and Justine do not appear anywhere in this testimony. Thus, the testimony does not establish Plaintiffs had any additional suspicion prior to June 27. Defendants thus fail to demonstrate Plaintiffs suspected negligence prior to June 27.

6. September 12, 2014

Defendants contend that as of September 12, 2014, a reasonable person would have further investigated Decedent’s death. Defendants point to the fact that on September 12, 2014, Renee saw Dr. Sarno at a family reunion. (UMF No. 46.) On September 12, Dr. Sarno had already received Decedent’s medical records and had been in possession of them since approximately June 2014. Defendants contend the family reunion was one of many opportunities where Renee could have inquired as to Dr. Sarno’s investigation into Decedent’s death. Further, Defendants state there is no other alleged information Plaintiffs received between this date and October 9, when they supposedly first suspected wrongdoing. At this point, Renee had nearly forty telephone calls with her brother and, if she were diligent, would have asked him to inquire further into SCVMC’s actions.

This argument is not well-taken. There is insufficient evidence reflecting Plaintiffs suspected or had reason to suspect Defendants’ negligence. The only difference between September 12 and the prior proposed accrual dates is that Renee met with her brother at a family reunion. It is not apparent how this event changes the circumstances to such a degree that Renee then had reason to suspect negligence. There is also no evidence reflecting they discussed the case at that time. There is additionally insufficient evidence establishing Plaintiffs were not reasonably diligent in pursuing their investigation as they requested the records and were seeking to have them reviewed. Further, Defendants provide no legal authority supporting their argument that Plaintiffs’ behavior clearly reflects a lack of diligence. As such, they fail to demonstrate Plaintiffs either suspected negligence or failed to diligently investigate any wrongdoing.

7. Conclusion

In sum, Defendants do not demonstrate Plaintiffs suspected wrongdoing prior to October 9, 2014. As a result, they fail to show the causes of action accrued prior to October 9, 2014. Therefore, Defendants fail to satisfy their initial burden that Plaintiffs cannot prove compliance with the Tort Claims Act. The motion for summary judgment is thus DENIED.

III. Summary Adjudication

In the alternative, Defendants move for summary adjudication of the seventeenth affirmative defense, the Tort Claims Act.

A party may move for summary adjudication of an affirmative defense in the alternative to a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(1); see also Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 236.) “A summary adjudication works the same way [as a motion for summary judgment], except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint.” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464.)

Defendants do not independently discuss the merits of their alternative motion for summary adjudication and thus it appears they advance the same arguments relative to their motion for summary judgment. For the reasons stated above, Defendants fail to establish Plaintiffs’ noncompliance with the Tort Claims Act. Therefore, the alternative motion for summary adjudication of the seventeenth affirmative defense of the Tort Claims Act is DENIED.

The Court will prepare the order.