Case Name:   Lonna Lawrence v. Stanford Hospital and Clinics, et al.

Case No.:       1-13-CV-252041

Defendants Stanford Hospital and Clinics (“Stanford”) and Joseph B. Shrager, M.D. (“Shrager”) (collectively, “Defendants”) move for judgment on the pleadings as to each cause of action asserted in the complaint of plaintiff Lonna Lawrence (“Plaintiff”) on the ground that Plaintiff fails to allege facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)

Request for Judicial Notice

Defendants request that the Court take judicial notice of Plaintiff’s responses to request for production of documents, set one, propounded by Defendants, and a series of emails produced by Defendants in response to this request for production of documents. Defendants base their request on Evidence Code, section 452, subdivision (h).

Defendants contend that the Court may take judicial notice of the request for production of documents and the emails produced because the court may take judicial notice of admissions and concessions by the plaintiff that are inconsistent with the allegations of the pleadings. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) This argument is not persuasive.

Here, the documents at issue do not constitute admissions or concessions. Instead, the emails are merely documents responsive to the request for production of documents. Thus, there is no indication that they are not reasonably subject to dispute and easily verified. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145 [“Judicial notice under Evidence Code section 452, subdivision (h) is intended to cover facts which are not reasonably subject to dispute and are easily verified.”].) In addition, to the extent that Defendants contend that these emails form a contract to toll the statute of limitations, the existence and terms of a contract between private parties cannot be established by judicial notice under section 452, subdivision (h). (See Gould, supra, 31 Cal.App.4th at pp. 1145-1146 [to determine the existence and meaning of the contract, the court would have to engage in the kind of fact-finding appropriate for a trial on the merits].)

In its reply brief, Stanford asserts for the first time that the Court should take judicial notice of the emails because, when a written contract is alleged, the terms of the contract must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (See Harris v. Rudin, Richman & Appel [“Harris”] (1999) 74 Cal.App.4th 299, 306.) As an initial matter, Stanford does not explain why it delayed until the filing of the reply brief to bring this argument to the attention of the Court. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010 (“The salutary rule is that points raised in the reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”].) In any case, Stanford’s reliance on Harris, supra, is misplaced. Harris stands for the proposition that “[i]f the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris, supra, 74 Cal.App.4th at p. 306.) Here, the action is not based on the alleged breach of a written contract. Accordingly, Harris is not applicable.

Based on the foregoing, Defendants’ request for judicial notice is DENIED.

Shrager’s Motion for Judgment on the Pleadings

On May 5, 2014, Shrager was dismissed from the action with prejudice. Accordingly, his motion for judgment on the pleadings is MOOT.

The First Cause of Action for Professional Negligence

Stanford moves for judgment on the pleadings as to the first cause of action for professional negligence solely on the ground that the cause of action is barred by the statute of limitations. It contends that the parties entered into an agreement to toll the statute of limitations until August 7, 2013. As Plaintiff did not file her complaint until August 27, 2013, Stanford reasons that her cause of action for professional negligence is barred. In opposition, Plaintiff argues that she properly alleged that the parties entered into an agreement to toll the statute of limitations “for a defined period,” and therefore, it is not clear from the face of the complaint that the action is barred by the statute of limitations. Plaintiff’s argument is meritorious.

Here, the face of the complaint indicates that the parties have agreed to toll the statute of limitations for some unspecified period of time. (See Compl., p. 2:14-15.)    Thus, the action may be barred if the statute of limitations and the tolling agreement expired prior to the filing of the complaint. On the other hand, it is possible that the action may not be barred because the tolling agreement had not expired prior to the filing of the complaint or the tolling agreement expired, but the statute of limitations itself had not expired. (See Woods v. Young (1991) 53 Cal.3d 315, 326 fn. 3 [“Tolling may be analogized to a clock that is stopped and then restarted. Whatever period of time that remained when the clock is stopped is available when the clock is restarted, that is, when the tolling period has ended.”].) Stanford therefore fails to demonstrate as a matter of law that the action is barred by the statute of limitations. (See Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324 [“The running of the statute [of limitations] must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred.”].) Accordingly, the motion for judgment on the pleading as to the first cause of action in the complaint is DENIED.

The Second and Third Causes of Action for General Negligence and Negligent Hiring, Retention and Supervision

In her opposition, Plaintiff agrees to dismiss the second and third causes of action for general negligence and negligent hiring, retention and supervision. Accordingly, the motion for judgment on the pleadings as to the second and third causes of action is GRANTED WITHOUT LEAVE TO AMEND.