Case Number: EC061845 Hearing Date: November 07, 2014 Dept: B
NOTICE: Department B will be dark on November 7, 2014. Please review the following tentative ruling. If you wish to have oral argument, please contact opposing counsel and agree upon one of the following dates for argument: November 21 or December 5. Then, please send an email to lmcfarlane@lacourt.org stating your case number, the agreed upon date for argument, and which party will give notice. The email must be received by 4:30 p.m. on November 7, 2014, or the Court’s tentative ruling will be the ruling and order of the Court. You may also send an email if you submit to the tentative ruling.
TENTATIVE RULING:
Demurrer
The Complaint alleges that the Defendant provided reconstructive surgery to the Plaintiff after a mastectomy. The Plaintiff suffered personal injuries because the Defendant’s medical treatment fell below the standard of care.
Further, the Defendant showed photographs of the Plaintiff’s breasts to her family without her consent. The Plaintiff suffered personal injuries from this invasion of her privacy. The Causes of action in the Third Amended Complaint are for: 1) Medical Malpractice and 2) Invasion of Privacy
This hearing concerns the demurrer filed by the Defendant, Lawton Tang.
1. Demurrer to Second Cause of Action for Invasion of Privacy
This cause of action is based on the claim that the Defendant invaded her privacy by taking photographs of her breasts and then showing them to her family. This is a cause of action based on the theory that the invasion of privacy occurred through the public disclosure of private information.
The Defendant argues that the claim is barred by the statute of limitations. Where the dates alleged in the complaint show the action is barred by the statute of limitations, a demurrer lies. Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300. A one-year statute of limitations applies to claims related to a violation of the California Constitutional right to privacy. Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal. App. 3d 310, 313.
The Plaintiff alleges in paragraph 13 that the Defendant performed the medical procedure on October 23, 2012. In paragraph 14, the Plaintiff alleges that after the procedure was complete, the Defendant spoke to the family and offered to show “his finished product”, i.e., the result of the reconstructive procedure that replaced the Plaintiff’s breasts. This indicates that the invasion of privacy occurred on October 23, 2012.
However, the Plaintiff has pleaded facts to demonstrate that the discovery rule applies and tolls the statute of limitations. When the dates in the complaint show that the action is barred by the statute of limitations, a party may plead that the accrual of a cause of action was delayed because the party did not discover the claim. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 808. The party must specifically plead the following facts:
1) the time and manner of discovery; and
2) the inability to have made earlier discovery despite reasonable diligence.
Id.
A review of the Plaintiff’s Third Amended Complaint reveals that in paragraph 20, the Plaintiff alleges that “several months later”, the Plaintiff was informed by her cousin what the Defendant had showed to her and to additional individuals present for the October 23, 2012 procedure. The Plaintiff also alleges in paragraph 20 that “immediately after hearing about this”, the Plaintiff contacted all of her family members and confirmed the story. In paragraph 21, the Plaintiff alleges that this occurred in March of 2013 and that she could not have discovered the Defendant’s conduct earlier because 1) she was heavily sedated when the photographs were shown and discussed and 2) no one talked about it until her cousin disclosed it.
These allegations identify the time and manner of discovery, i.e., March of 2013 through the statements of her cousin. Further, the allegations identify the Plaintiff’s inability to have made earlier discovery despite reasonable diligence, i.e., that she was sedated at the time of the alleged invasion of privacy and that no one had disclosed it to her until her cousin did.
The Plaintiff’s allegations indicate that the discovery rule tolled the statute of limitations until March 2013. The Plaintiff had one year, or until March of 2014, to file her Complaint. A review of the Court file reveals that the Plaintiff filed her Complaint on December 16, 2013. Since this was before the one-year time period had ended, the dates in the pleadings show that the action was not barred by the statute of limitations.
Accordingly, there are no grounds for a demurrer based on statute of limitations because the Plaintiff pleaded sufficient specific facts to demonstrate that the discovery rule applies to her claim.
The Defendant then argues that the Plaintiff consented to the disclosure of the photographs of her breasts to her family. The Defendant requests that the Court take judicial notice of a “Patient Photograph Authorization and Consent”. The Court denies this request because there are no grounds under CCP section 451 or 452 to take judicial notice of an agreement between the parties.
Further, even if the Court takes judicial notice of the consent form, it does not contain any language consenting to the release of the photographs to her family. Instead, in paragraph 2, the Plaintiff consented to the release of medical photographs for “professional medical purposes deemed appropriate”. Paragraph 2 identifies examples of “professional medical purposes” as public or commercial television, electronic digital networks, for purposes of medical education, patient education, lay publication, or during lectures to medical or lay groups.
The Defendant argues that the publication to the family members was a publication to a lay group. However, the Defendant does not address the requirement that the release be for “professional medical purposes deemed appropriate.” It cannot be determined from the pleadings that the Defendant’s alleged showing of the photographs to the Plaintiff’s family for the purpose of showing “his finished product” falls within the consent to the release for “professional medical purposes deemed appropriate”. Instead, this will be a question of fact for the trier-of-fact to determine.
Therefore, the Court overrules the demurrer to the second cause of action.