Case Number: BC696023 Hearing Date: October 01, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINTL; SUSTAINED WITH LEAVE TO AMEND

I. BACKGROUND

On March 1, 2018, plaintiff Ronald Fisher (“Plaintiff”) filed a complaint against defendants Long Beach Memorial Medical Center, (“Long Beach Memorial”), M Jay Jazayeri MD Inc., M Jay Jazayeri (“Jazayeri”), and Does 1 to 250 alleging a cause of action for medical negligence and professional negligence. On May 29, 2018, Plaintiff filed a first amended complaint (“FAC”).

The FAC alleges that: (1) On May 17, 2016, Plaintiff underwent a hip removal surgery at Long Beach Memorial, which was performed by Jazayeri. (FAC ¶¶ 1, 12); (2) Plaintiff woke up after the surgery on May 18, 2016, and noticed that he could not feel anything below his knee on his left leg/foot. (Id. ¶ 15); (3) Plaintiff began to suffer from a condition called drop foot which Plaintiff was told was a result of damage to the sciatic nerve. (Id.); (4) In November 2016, Plaintiff was seen by a neurologist who concluded that Jazayeri severed Plaintiff’s sciatic nerve during the hip surgery. (Id. ¶ 16); and (5) On December 1, 2017, Plaintiff caused notice of intent to sue letters to be sent to the defendants. (Id. ¶ 8.)

On August 24, 2018, Long Beach Memorial filed a demurrer. On September 18, 2018, Plaintiff filed an opposition.

II. LEGAL STANDARD

“A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment . . . .’” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325 (internal citations omitted).)

III. DISCUSSION

a. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike 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. (CCP §§ 430.41 and 435.5.) The Court notes that Long Beach Memorial has complied with the meet and confer requirement. (See Decl. Khan.)

b. Statute of Limitations

Long Beach Memorial contends Plaintiff’s claims are barred by the one year statute of limitations pursuant to Code of Civil Procedure section 340.5. Specifically, Long Beach Memorial argues that Plaintiff was aware of his injury and its negligent cause on May 18, 2016, when he could not feel anything below his knee on his left leg/foot. Long Beach Memorial argues that at the very least Plaintiff was on notice of his injury and its negligent cause in November 2016 when a neurologist informed him that Jazayeri had severed his sciatic nerve during this hip surgery. Thus, Long Beach Memorial argues that since Plaintiff did not commence this action until March 1, 2018, Plaintiff’s action is time barred.

Plaintiff opposes on the ground that he did not suspect that defendant’s negligence was the cause of his medical condition until December 14, 2016. Plaintiff argues that following his surgery, he was told by Jazayeri that the surgery went well and that Plaintiff would make a full recovery provided that he followed a physical therapy plan. Plaintiff further argues that on July 24, 2016, Plaintiff fractured his left femur and was led to believe that his fracture was the reason his left foot was not recovering from the surgery. Furthermore, Plaintiff argues that it was not until December 14, 2016, when Plaintiff consulted with a neurologist, that he was told that the likely cause of his inability to feel his left foot was because of his hip surgery. The opposition also states that the dates alleged in the first amended complaint are not accurate in part because Plaintiff did not review the complaint or the FAC before the documents were filed with the Court.

Code of Civil Procedure § 340.5 mandates that an action for injury or death against a health care provider based on alleged professional negligence must be commenced within three years after the date of injury or one year after the plaintiff discovers or should have discovered the injury with reasonable diligence, whichever comes first. The statute emphasizes that “[i]n no event shall the time for commencement of legal action exceed three years unless tolled for one of three specific reasons (fraud, intentional concealment, or presence of a foreign body). (CCP § 340.5.)

A plaintiff’s action may be time-barred by the one-year limitation period, which begins when the plaintiff discovers both her injury and its negligent cause. (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189.) “The patient is charged with presumptive knowledge of his negligent injury, and statute commences to run, once he has notice or information of circumstances to put reasonable person on inquiry, or has opportunity to obtain knowledge from sources open to his investigation.” (Artal v. Allen (2003) 111 Cal.App.4th 273, 279 (internal citations omitted).)

The Court finds that based on the allegations in the FAC, the statute of limitations on Plaintiff’s claim began to run either on May 18, 2016 or November 2016, because a reasonable person would have been on notice of Plaintiff’s injury and its negligence cause in light of the various events that took place.

The FAC alleges that on May 17, 2016, Plaintiff underwent hip surgery. (FAC ¶ 12.) The FAC further alleges that Plaintiff woke up after the surgery on May 18, 2016, and noticed that he could not feel anything below his knee on his left leg/foot. (Id. ¶ 15.) Following the surgery, Plaintiff began to suffer from a condition called drop foot which Plaintiff was told was a result of damage to the sciatic nerve. (Id.) Finally, the FAC alleges that in November 2016, Plaintiff was seen by a neurologist who concluded that Jazayeri severed Plaintiff’s sciatic nerve during the hip surgery. (Id. ¶ 16)

Accordingly, based on the allegations in the FAC, as of May 18, 2016, or at the latest starting in November 2016, Plaintiff was presumptively on notice of the injury and the alleged negligent conduct of the defendants and the statute of limitations commenced to run. (See Artal v. Allen (2003) 111 Cal.App.4th 273, 279.) Plaintiff did not file the lawsuit until March 1, 2018, more than a year later. As such, the Court finds that Plaintiff’s claims against Long Beach Memorial are time barred by the one year limitations period pursuant to Code of Civil Procedure section 340.5.

The Court acknowledges that generally the question of when there has been a belated discovery of the cause of action, especially in malpractice cases, is essentially a question of fact, and it is only where reasonable minds can draw but one conclusion from the evidence that the question becomes a matter of law. (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1188–1189 [internal quotations omitted.].) However, here based on the unambiguous allegations in the FAC, reasonable minds can only come to the conclusion that Plaintiff discovered both her injury and its negligent cause at the latest in November 2016, when Plaintiff was seen by a neurologist who, after examining Plaintiff, concluded that Jazayeri severed Plaintiff’s sciatic nerve during Plaintiff’s hip surgery. (FAC ¶ 16.) Thus, since this action was not filed until March 1, 2018, Plaintiff’s claims based on the allegations in the FAC are time barred.

The Court notes that the opposition argues that Plaintiff was lead to believe that Plaintiff’s hip surgery went well and that Plaintiff would make a full recovery provided that he followed a physical therapy plan. However, no such allegations are made in the FAC.

The Court additionally notes that the opposition argues that the dates in the FAC are incorrect and that Plaintiff did not visit the neurologist until December 14, 2016. (Opposition at 4:19-25.) However, for demurrer purposes, the Court solely looks at the face of the pleadings and judicially noticed facts. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Since the Court has not taken judicial notice of any extrinsic matter, the Court only looks to the face of the FAC which states that Plaintiff was seen by the neurologist in November 2016. (FAC ¶ 16.)

Finally, the Court notes that based on the allegations in the FAC, Plaintiff cannot invoke the 90-day extension pursuant to Code of Civil Procedures Section 364(d). Section 364(d) provides that if the notice of intent to sue a healthcare provider is served within ninety (90) days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended ninety (90) days from the service of the notice. (Davis v. Marin (2000) 80 Cal.App.4th 380, 385.) Since the FAC alleges that Plaintiff consulted the neurologist in November 2016, the statute of limitations period expired at the latest on November 30, 2017. However, since Plaintiff did not serve his notice of intent to sue until December 1, 2017 (FAC ¶ 9), the 90-day extension afforded by Code of Civil Procedure section 364(d) does not apply.

Thus, Long Beach Memorial’s demurrer to the FAC is SUSTAINED. In light of the arguments made in the opposition, Plaintiff is granted twenty days’ leave to amend. With regard to leave to amend, the Court notes that under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425–26.) Thus, in amending the FAC, the Court stresses the importance of fully explaining any allegations in a second amended complaint that are contradictory to allegations in the FAC.

Parties who intend to submit on this tentative must send an email to the Court at sscdept7@lacourt.org as directed by the instructions provided on the Court website at www.lacourt.org.

Moving Party is ordered to give notice.