Bugden v. Siems

Filed 8/29/06 Bugden v. Siems CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Paul Gutman, Judge. Reversed and remanded with directions.

Law Offices of Ruel Walker, W. Ruel Walker; The Albini Law Group and Dianna L. Albini for Plaintiffs and Appellants.

Reback, McAndrews & Kjar, Robert C. Reback and David J. Rubaum for Defendant and Respondent.

____________________________________

This is a medical malpractice case against several doctors. The trial court granted one doctor’s motion for summary adjudication of issues (finding the plaintiff’s negligence claim was barred by limitations), then judicially noticed that ruling and the facts underlying it to support an order granting another doctor’s motion for judgment on the pleadings. This appeal challenges the judgment on the pleadings. We reverse.

FACTS

A.

In June or July 1999, Glenn Bugden consulted Jack Lebby, O.D., about laser surgery to correct his eyesight. Dr. Lebby referred Bugden to Thomas Tooma, M.D., who at first advised against the surgery because his examination revealed keratoconus (thinning of the cornea), a contraindication for laser surgery, but then noted his initial misdiagnosis after consulting with Dr. Lebby. In November, Jon Siems, M.D., performed the surgery. Bugden’s vision initially improved, but began to deteriorate about six weeks after the surgery. Drs. Lebby, Tooma, and Siems reassured Bugden, stating that deterioration was “common” and that any continuing problem could be fixed with an “enhancement” or by a new “touch up” laser treatment.

Bugden’s doctor-patient relationship with Drs. Lebby, Tooma, and Siems continued until December 2001, at which time Bugden moved from California to Boston. In 2002, Bugden learned from a Boston ophthalmologist that he should not have had laser surgery in the first place and that additional surgery would not correct his vision.

B.

In November 2002, Bugden sued Dr. Siems, Dr. Tooma (and others who are not parties to this appeal) for damages for medical malpractice. Bugden filed a second amended complaint in March 2003, alleging delayed discovery and that he did not discover the cause of his injury until August 2002.[1]

In July 2004, Dr. Tooma moved for summary judgment or, alternatively, summary adjudication, contending among other things that Bugden’s negligence claim was barred by the one year statute of limitations, Code of Civil Procedure section 340.5.[2] The gist of Dr. Tooma’s motion was that, by January 2001 at the latest (when Bugden told Dr. Utnehmer, a partner of Dr. Siems, that Dr. Tooma had told him (when he sought a second opinion) that his corneas were too thin for the enhancement), Bugden knew his injuries were caused by Dr. Tooma’s negligence. Bugden’s request for additional time to conduct discovery was granted and the hearing on the summary judgment motion was postponed.

Before Dr. Tooma’s motion was heard, Bugden amended his complaint a number of times and finally filed a seventh amended complaint in October 2004 in which he alleged a cause of action for fraud as well as one for professional negligence. Drs. Siems and Tooma answered, denying Bugden’s allegations and raising a number of affirmative defenses, including the one year statute of limitations.

In December 2004, Bugden filed his opposition to Dr. Tooma’s pending summary judgment motion. In February 2005, the trial court granted Dr. Tooma’s summary adjudication motion, finding that, by January 16, 2001, Bugden knew or should have known about the injury and Dr. Tooma’s negligence and that Bugden’s negligence cause of action thus had to be filed no later than January 16, 2002 (it was not filed until November 15, 2002). This order left the fraud cause of action pending against Dr. Tooma (and did not affect the causes of action alleged against Dr. Siems).

In April 2005, Dr. Siems moved for judgment on the pleadings, claiming Bugden’s negligence cause of action was time barred as established by the trial court’s prior “judicial determination“ -- the ruling in favor of Dr. Tooma (which Dr. Siems asked the trial court to judicially notice). Bugden opposed the motion contending that, in ruling on a motion for judgment on the pleadings, the trial court had to accept the truth of Bugden’s allegations and could not judicially notice the truth of a prior ruling against a different doctor.

The trial court, acknowledging that the motion and its ruling were predicated on the earlier ruling, granted the motion and entered a judgment on the pleadings in favor of Dr. Siems. Bugden appeals.[3]

DISCUSSION

Bugden contends the trial court impermissibly relied on Dr. Tooma’s summary adjudication order and the evidence underlying it in ruling on Dr. Siems’s motion for judgment on the pleadings. We agree.

Although a trial court may judicially notice the existence of an order or finding of fact (Evid. Code, §§ 452, 453; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145), it may not notice the truth of the acts underlying an order or finding of fact because “neither a finding of fact made after a contested adversary hearing nor a finding of fact made after any other type of hearing can be indisputably deemed to have been a correct finding.” (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1568.) Even if the trial court’s summary adjudication order vis-à -vis Dr. Tooma was correct, the court nevertheless erred in judicially noticing that order and the facts underlying it in granting Dr. Siems’s motion for judgment on the pleadings. (§ 438, subds. (b), (c)(1)(B)(ii), (d).)

Instead of responding to this point, Dr. Siems misconstrues Bugden’s appeal as a challenge to the trial court’s nonappealable summary adjudication ruling in favor of Dr. Tooma and responds to arguments that are not made by Bugden. As a result, there is nothing in Dr. Siems’s brief to address the fundamental flaw in the trial court’s order, or to suggest that there is a basis independent of judicial notice to support the trial court’s ruling.[4]

Because the seventh amended complaint does not show on its face that it is barred by limitations -- to the contrary, it alleges delayed discovery to August 2002 -- Dr. Siems’s motion for judgment on the pleadings should have been denied. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516; Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.)

DISPOSITION

The judgment of dismissal is reversed, and the cause is remanded to the trial court with directions to enter a new order denying Dr. Siems’s motion for judgment on the pleadings. Bugden is entitled to his costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

[1] To be precise, Dr. Tooma was added in the second amended complaint, as was a loss of consortium cause of action by Bugden’s wife, Janet McTaggart. McTaggart is included in our references to Bugden.

[2] Undesignated section references are to the Code of Civil Procedure.

[3] The trial court stayed the proceedings against the other defendants while this appeal was pending.

[4] As Bugden’s lawyer commented at the hearing on the motion for judgment on the pleadings, had he understood that Dr. Tooma’s summary adjudication motion “was going to adjudge the statute of limitations applicable not only to Dr. Tooma but to the acts of every single . . . defendant[], [he] would have brought an entirely different defense to that motion.”