Case Name:   Rodriguez v. County of Santa Clara, et al. 

Case No.:       1-14-CV-262377

Defendant County of Santa Clara (“Defendant”) demurs to the Second Amended Complaint (“SAC”) of plaintiff Josefina Rodriguez (“Plaintiff”) on the ground that it fails to state facts sufficient to constitute a cause of action.

Defendant’s request for judicial notice is GRANTED.  (Evid. Code, § 452, subds. (c), (d), (h).)

Plaintiff alleges that Plaintiff’s son, Armando Cruz (“Cruz”), suffered from an extremely rare condition, Arginase Deficiency, which required strict adherence to dietary restrictions.  (SAC, ¶ 8.)  In October 2012, Cruz received medical care and treatment at Santa Clara Valley Medical Center due to abdominal pain, nausea, and vomiting.  (SAC, ¶ 11.)  During his treatment, Cruz’s treating health care providers knew or should have known of his Arginase Deficiency, and that deviation from the strict dietary conditions associated with the deficiency would put Cruz at substantial risk of injury or death.  (SAC, ¶ 21.)  On or before October 20, 2012, the defendants gave or permitted to be served to Cruz a protein-rich sandwich that was a substantial deviation from his strict dietary restrictions.  (SAC, ¶ 22.)  This resulted in his death.  (SAC, ¶ 25.)

Defendant argues that Plaintiff cannot maintain her claim because she did not present a timely claim in compliance with the Government Claims Act and did not obtain relief from the Court to file a late claim.  Generally, claims for money or damages against a local public entity must be presented to the entity prior to the initiation of litigation.  (Gov. Code, § 905.)  A claim relating to a cause of action for death or for injury to person or to personal property or growing crops must be presented not later than six months after the accrual of the cause of action.  (Gov. Code, § 911.2.)  When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.  (Gov. Code, § 911.4.)  The application must be presented to the public entity within a reasonable time not to exceed one year after the accrual of the cause of action and must state the reason for the delay in presenting the claim.  (Ibid.)

Plaintiff alleges she filed a claim on October 22, 2013.  (SAC, ¶ 16.)  Defendant contends the claim was late because it was filed more than six months after Cruz’s death on October 20, 2012.  In response, Plaintiff argues that her cause of action for medical malpractice did not accrue until she became suspicious of malpractice.  Plaintiff is essentially arguing that the cause of action accrued later because of delayed discovery.

Generally, under the delayed discovery rule, a cause of action accrues when the plaintiff either (1) actually discovers the injury and its negligent cause, or (2) could have discovered the injury and cause through the exercise of reasonable diligence.  (Mangini v. Aerojet-General Corp. (1991) 230 Cal. App. 3d 1125, 1150.)  This Court previously found that Plaintiff had not sufficiently alleged delayed discovery because she did not allege her inability to have made earlier discovery despite reasonable diligence.  As pointed out by Plaintiff, however, a party’s duty to begin investigation of the cause of an injury is triggered by the party’s suspicion of wrongdoing.  (See Kitzig v. Nordquist (2000) 81 Cal. App. 4th 1384, 1391 [“[The delayed discovery] rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing.”]; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 1110 [“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.”].)
In the SAC, Plaintiff now alleges that she did not suspect that Cruz’s dietary restrictions were not followed or that his death may have been related to a failure by Defendant to follow the dietary restrictions.  (SAC, ¶ 12.)  She had no suspicion that any negligent medical care may have caused her son’s death.  (SAC, ¶ 15.)  She had no reason for suspicion until she received a “Notice of Completion of Post-Mortem Examination” on August 26, 2013, which stated the cause of death was the recent consumption of a high-protein sandwich while on a restricted diet due to Cruz’s medical condition.  (SAC, ¶ 14.)  Plaintiff’s allegations are sufficient for pleading purposes to show that she had no actual suspicion or any reason to suspect that negligence had been involved in Cruz’s death.  Defendant argues that a reasonable person would have had cause for suspicion under these circumstances.  However, as argued by Plaintiff, Cruz had preexisting medical issues, so it would not necessarily be suspicious that he would die while undergoing medical treatment.  As stated by one case:

The best medical treatment sometimes fails, or requires long and difficult recuperation, or produces bad side effects.  The mere fact that an operation does not produce hoped-for results does not signify negligence and will not cause commencement of the statutory period.

(Kitzig v. Nordquist, supra, 81 Cal. App. 4th at pp. 1391-1392, citations and quotation marks omitted.)

The Court finds that Plaintiff has sufficiently alleged delayed discovery such that the statute of limitations would not have begun to accrue until August 26, 2013.  Consequently, Plaintiff’s filing of a claim with Defendant on October 22, 2013, was timely.  Accordingly, Defendant’s demurrer is OVERRULED.