Bui v. Hoang

 

 

 

 

 

 

 

 

 

 

Filed 10/3/13  Bui v. Hoang CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SIXTH
APPELLATE DISTRICT

 

 
>

VIEN T. BUI,   Plaintiff and Appellant,             v.   BICH-LIEN THI HOANG,             Defendant and Respondent.

H038182      (Santa Clara County      Super. Ct. No. CV161914)

 

            Vien T.
Bui, in consolidated actions filed in early 2010, sued various parties for
dental work performed on him at a clinic over a nine-month period concluding in
November 2008.  One of those parties,
Lien Hoang, a licensed dentist,href="#_ftn1"
name="_ftnref1" title="">[1] moved
successfully for summary judgment on
dual grounds:  (1) Bui could not
establish all essential elements of his claim for professional negligence; and
(2) his suit was time-barred.  At the
time it granted summary judgment, the court also denied Bui’s motion to amend
his complaint to add new causes of action against Hoang. 

            In Bui’s
appeal from the judgment entered against him, he claims that the court, in
granting summary judgment, incorrectly applied the href="http://www.mcmillanlaw.com/">statute of limitations for medical
malpractice, Code of Civil Procedure section 340.5, to conclude that his suit
was time-barred.href="#_ftn2" name="_ftnref2"
title="">[2]  He argues that there were a number of legal
theories other than professional negligence that were reasonably contemplated
in the complaint for which section 340.5 was inapplicable.  He contends further that, in any event, the
court erred by selecting an arbitrary date in June 2008 as the commencement
date of the statute of limitations under section 340.5.  Lastly, he asserts that the court abused its
discretion in denying his motion for leave to amend his complaint. 

            We conclude
that the court properly granted summary judgment on the ground that Bui’s
pleaded claim was time-barred, and that the court did not abuse its discretion
in denying Bui leave to amend.  We will
therefore affirm the judgment.

FACTUAL BACKGROUND

I.          Hoang’s Professional
Background

Hoang is a dentist licensed to
practice dentistry in href="http://www.adrservices.org/neutrals/frederick-mandabach.php">California.  As of 2008, she performed dentistry under her
own business license at a facility on Senter Road
in San José that was leased to
Hi-Tech Dental, Inc. (Hi-Tech).  Pursuant
to a written sublease agreement, Hoang rented a dental suite, equipment, and
supplies at the Senter Road
facility.  She was not an employee of
Hi-Tech and took no direction from that entity. 
Hoang was paid directly by her patients and their insurers and received
all of the income for patients she treated. 
She also paid for her own professional liability insurance; the
insurance policy was in her name.  At no
time did Hoang employ Kim Trang Nguyen, a dental assistant, nor did Nguyen ever
employ Hoang. 

II.         Bui’s Account of Dental
Treatment He Received

According to Bui’s deposition
testimony, his first appointment at Hi-Tech was in approximately February 2008,
when he was first examined by dental assistant Nguyen.  During his first visit, he filled out a
patient information form that included patient history information, which was
signed and dated February 12, 2008.  He indicated that he was experiencing a
problem with his upper denture in that it did not fit well and was “not very
stable . . ., not comfortable.” 

Also according to Bui’s deposition
testimony, in approximately May 2008, he went to Hi-Tech to be fitted for a new
upper denture by Nguyen.href="#_ftn3"
name="_ftnref3" title="">[3]  He also had teeth extracted that day.  The fitting of the new denture was
uneventful, and Bui left the office wearing it. 
The denture was temporary; he wore it three or four weeks.  After later receiving four mini-implants, he
no longer wore the denture.  No dental
professional ever criticized the denture, and Bui experienced no problems with
it. 

In his declaration filed in
opposition to the summary judgment motion, Bui stated that, at Nguyen’s
recommendation, he had three upper teeth extracted by another dentist.  Sometime after the extraction, he saw a
different dentist, Frank Tran, who placed four mini-implants in Bui’s upper
jaw.  Bui returned a short time later for
the fitting of a new denture by Nguyen. 
As Bui described in his declaration: 
“She attempted to place the new denture on the implants.  The new denture immediately became lodged in
my mouth.  [Nguyen] first tried to yank
it out with the dental pick in her hands. 
This was extremely painful.  It
would not come out.  She next picked up
the dental drill that was next to the chair and began to drill it out.  This went on for over forty-five
minutes.  I was in extreme pain the
entire time; I was so scared and did not know what was going on. . . . Finally
the denture came out.  Then she fixed the
damaged denture for me to use while waiting for her to order the second new
denture.  I asked [Nguyen] why the
denture got stuck.  She told me that Dr.
Tran forgot to put the housings on top of the mini-implants and that the
housing acted like a cap of a bottle, if they are set, the dentures snap in and
out.” 

Bui declared further that he
returned after the second new denture was available and after Tran inserted
housings on the mini-implants.  In
response to being told that Nguyen had blamed him for the prior new denture
becoming stuck, Tran told Bui that it was Nguyen’s fault.  Nguyen placed the second new denture, but
soon thereafter, the mini-implants began falling out and he could not wear the
second new denture; he ultimately was fitted by Nguyen with the prior, damaged
denture with unsatisfactory results.  Bui
declared:  “Dr. Tran could not put more
implants in because I had lost bone.  I
complained to [Nguyen] and she said to me, ^[‘]Mr. Bui_[,]
you have two implants and that is better than none.^[’]  I was very hurt by these words and her lack
of caring.” 

Bui testified that he does not
“know who Dr. Hoang is,” and that he knew of no facts supporting his allegation
that Hoang supervised Nguyen while the latter treated Bui at Hi-Tech.  Likewise, in his declaration signed
approximately one and one-half years after his deposition, Bui stated that he
“was never treated by or introduced to Lien Hoang” and only became aware of her
later when he received a copy of his dental records. 

III.       Hoang’s Account of Dental
Treatment She Provided 

According to Hoang’s declaration,
which was based in part upon her review of Bui’s dental chart, she treated Bui
on three separate 2008 visits, on February 16, April 25, and May 9.  During the first visit, Bui complained about
a loose or unstable upper partial denture, which Hoang confirmed during her
examination.  She suggested one option
would be to replace the upper partial denture if it was more than five years
old.  Bui favored that option if the new
denture would be covered by insurance; Hoang told him that it would be
covered.  

Hoang declared further that on
April 25, 2008, she obtained an impression from Bui for a new full upper
denture.  Two weeks later on May 9, she
placed into Bui’s mouth the new upper denture that had been produced by a
dental laboratory.  She did so after
Bui’s upper teeth were extracted the same day by Micaela Balaban, another
dentist.  Thereafter, although Hoang had
advised Bui to return to the office for an adjustment to the denture after the
swelling from the teeth extraction had subsided, he did not do so, and Hoang
never saw Bui after May 9, 2008.  She
never received any complaints from Bui about the upper denture. 

IV.       Records of Bui’s Dental
Treatment

Bui’s dental records show that he received
treatment at Hi-Tech from February 16, 2008, to November 14, 2008.  The records also reflect two written consents
to treatment signed by Bui:  (1) a
consent dated April 5, 2008, which included initialed paragraphs that
concerned, inter alia, Bui’s consent to the selection and use of medications
and anesthetics, and his consent to tooth extraction; and (2) a consent dated
June 13, 2008, authorizing Tran to perform href="http://www.sandiegohealthdirectory.com/">implant surgery. 

 
                                  PROCEDURAL
BACKGROUND

On January 22, 2010, Bui filed a
complaint in Superior Court, case number 110-CV161914, against Nguyen and
Hi-Tech.  He alleged seven causes of
action, captioned as intentional misrepresentation, battery, false imprisonment,
fraud (concealment), unfair business practices, intentional infliction of
emotional distress, and negligence. 

On February 11, 2010, Bui filed a
second complaint against Hoang and others, captioned as one for href="http://www.sandiegohealthdirectory.com/">“dental negligence,” in
Superior Court case number 110-CV163603. 
(Capitalization and emphasis omitted.) 
The complaint alleged separate dental negligence claims against Hoang,
and two other dentists affiliated with Hi-Tech, Tran and Balaban.href="#_ftn4" name="_ftnref4" title="">[4]  Before responses were filed by the defendants
in that case, Bui filed a first amended complaint (the Complaint), which was
captioned as one for “dental negligence and fraud.”  (Capitalization and emphasis omitted.)  Bui alleged in the Complaint that Hoang was
“employed with or contract[ed] with Hi[-]Tech.” 
He alleged further that his dental records reflected that between
February and April 2008, Hoang treated him or supervised treating him, and that
Hoang billed Bui’s insurance for services. 
But Bui also alleged “that he never saw, met, or received treatment by”
Hoang.  Bui alleged further that between
February and April 2008, he was treated by a person (unspecified in the
Complaint) who was not a dentist and who “caus[ed] him grave pain.”  Bui alleged that he reasonably believed that
Hoang was supervising this person, and that because of her superior knowledge
as a dentist, she should not have allowed this person to diagnose or treat
him. 

Hoang filed a demurrer to the fraud
cause of action of the Complaint and a motion to strike certain allegations,
including the prayer for punitive damages. 
The court sustained the demurrer on the basis that it failed to state
facts sufficient to constitute a cause of action for fraud and granted the
motion to strike the prayer for punitive damages.  The court granted Bui 10 days’ leave to
amend.  There is nothing in the record
evidencing that Bui thereafter filed an amended complaint relative to the fraud
claim.

Pursuant to the parties’
stipulation, the court in July 2010 ordered the two Superior Court actions
(case numbers 110-CV161914 and 110-CV163603) consolidated. 

In October 2011, Hoang moved for
summary judgment, or, in the alternative, for summary adjudication.  Bui opposed the motion.  Before filing his opposition, Bui filed a
motion to amend his complaint, which was opposed by Hoang.href="#_ftn5" name="_ftnref5" title="">[5] 

The motion for summary judgment and
motion to amend were scheduled for hearing on January 24, 2012.  The court adopted its tentative rulings with
respect to both motions, which tentative rulings were not contested.  In those rulings, the court granted Hoang’s
motion for summary judgment and denied Bui’s motion to amend.  Formal orders on both motions were thereafter
entered, and a judgment was entered in favor of Hoang.  Bui filed a timely appeal. 

DISCUSSION

I.          >The Summary Judgment Order

            A.        Summary Judgment and
Standard of Review

“The purpose of the law of summary
judgment is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.” 
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843 (Aguilar).)  As such, the summary judgment statute,
section 437c, “provides a particularly suitable means to test the sufficiency
of the plaintiff’s prima facie case and/or of the defendant’s [defense].”  (Caldwell
v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)  A summary judgment motion must demonstrate
that “material facts” are undisputed.  (§
437c, subd. (b)(1).)  “The materiality of
a disputed fact is measured by the pleadings.” 
(Conroy v. Regents of University
of California (2009) 45 Cal.4th 1244, 1250; see also >Metromedia, Inc. v. City of San Diego (1980)
26 Cal.3d 848, 885, revd. on other grounds Metromedia,
Inc. v. City of San Diego (1981) 453 U.S. 490.)

The moving party “bears the burden
of persuasion that there is no triable issue of material fact and that he [or
she] is entitled to judgment as a matter of law.”  (Aguilar,
supra, 25 Cal.4th at p. 850, fn.
omitted.)  A defendant moving for summary
judgment must “show[ ] that one or more elements of the cause of action . . .
cannot be established [by the plaintiff], or that there is a complete defense
to that cause of action.”  (§ 437c, subd.
(p)(2); see also Aguilar, at p.
853.)  A defendant meets his or her
burden by presenting affirmative evidence that negates an essential element of
the plaintiff’s claim.  (>Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334.)  Alternatively, a
defendant meets his or her burden by submitting evidence “that the plaintiff
does not possess, and cannot reasonably obtain, needed evidence” supporting an
essential element of its claim.  (>Aguilar, at p. 855.)  Where the summary judgment motion is based
upon an affirmative defense, “ ‘the defendant has the initial burden to show
that undisputed facts support each element of the affirmative defense.’
[Citations.]”  (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284,
289.)

Since summary judgment motions
involve pure questions of law, we review independently the granting of summary
judgment to ascertain whether there is a triable issue of material fact
justifying reinstatement of the action. 
(Wiener v. Southcoast Childcare
Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)  In doing so, we “consider[] all of the
evidence the parties offered in connection with the motion (except that which
the court properly excluded) and the uncontradicted inferences the evidence reasonably
supports.  [Citation.]”  (Merrill
v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

In our independent review of the
granting of summary judgment, we conduct the same three-step procedure employed
by the trial court.  First, “we identify
the issues framed by the pleadings because the court’s sole function on a
motion for summary judgment is to determine whether there is a ‘triable issue
as to any material fact’ (§ 437c, subd. (c)), and to be ‘material’ a fact
must relate to some claim or defense in
issue under the pleadings. 
[Citation.]”  (>Zavala v. Arce (1997) 58
Cal.App.4th 915, 926.)  Second, we
examine the motion to determine whether it establishes facts justifying
judgment in the moving party’s favor.  (>Chavez v. Carpenter, >supra, 91 Cal.App.4th at p. 1438.)  Third, we scrutinize the opposition—assuming
movant has met its initial burden—to “decide whether the opposing party has
demonstrated the existence of a triable, material fact issue [to defeat summary
judgment].  [Citation.]”  (Ibid.;
see also Burroughs v. Precision Airmotive
Corp. (2000) 78 Cal.App.4th 681, 688.) 
We need not defer to the trial court and are not bound by the reasons in
its summary judgment ruling; we review the ruling of the trial court, not its
rationale.  (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

Summary judgment may in an
appropriate case be based upon moving party-defendant’s establishing its
defense of the statute of limitations. 
“While resolution of the statute of limitations issue is normally a
question of fact, where the uncontradicted facts established through discovery
are susceptible of only one legitimate inference, summary judgment is
proper.  [Citation.]” (>Jolly v. Eli Lilly & Co. (1988) 44
Cal.3d 1103, 1112 (Jolly); see also >Clark v. Baxter Healthcare Corp. (2000)
83 Cal.App.4th 1048, 1054-1055.)  “ ‘It
is a question of law whether a case or a portion of a case is barred by the
statute of limitations, and we are not bound by the trial court’s determination
and instead conduct a de novo review.  [Citation.]’  [Citations.]” 
(Sahadi v. Scheaffer (2007)
155 Cal.App.4th 704, 713-714.) 

            B.        Parties’ Contentions

In challenging the order granting
summary judgment, Bui asserts that the court erred by accepting Hoang’s
evidence that she in fact treated him and thereby rejected Bui’s conflicting
evidence that Hoang provided no such treatment. 
Acceptance of the moving party’s evidence, Bui argues, is contrary to
the requirement that the court accept as true for purposes of summary judgment
the evidence offered by the party opposing the motion.  (See Sada
v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138,
148.)  He contends that “[o]nly by
accepting [Hoang’s] evidence [that she treated Bui] could the court have
concluded” that section 340.5 was the applicable statute of limitations for his
claims.  He argues that Hoang’s motion
addressed only a claim of “medical negligence” and that there were a number of
theories besides that claim that were “ ‘reasonably contemplated’ from the
factual allegations” pleaded in the Complaint. 
He contends that the limitation of actions for medical negligence
(including dental malpractice) provided in section 340.5 did not apply to these
other legal theories. 

Bui argues further that even if the
court correctly determined that section 340.5 applied to the Complaint, it
improperly found that Bui’s claims were time-barred because it selected an
incorrect commencement date (June 2008) for the statute of limitations.  He contends that this June 2008 date was
based upon the date that dental assistant Nguyen’s treatment resulted in
causing the new full upper denture over the implants to become lodged in his
mouth, and that “[i]n order to rule that this event triggered the statute as to
Dr. Hoang’s liability, the court had to conclude that there was a link between
the denture that Dr. Hoang allegedly delivered on May 9, 2008_[,] and
the triggering event.”  Because, Bui
argues, there was no such link, the June 2008 date selected by the court was
improper.  He also asserts that the
dental work performed on him at Hi-Tech was a single course of treatment and
that the statute of limitations therefore commenced to run “sometime after the
date [he] was told by [Nguyen] that he must be satisfied with the results
obtained [from the treatment] even if less than promised.”  

Hoang responds that summary
judgment was proper.  First, she asserts
that there was no triable issue of fact evidencing that she was negligent in
her treatment of Bui, and therefore the court properly granted summary judgment
on that ground.  Second, she argues that
the court properly found the case was time-barred.  Under section 340.5 (she contends), Bui was
required to bring suit within one year of the date he discovered or reasonably
should have discovered his injury, and that here, he knew he had been injured
at the time of the June 2008 appointment when Nguyen caused the new full upper
denture over the implants to become lodged in his mouth. 

            C.        Summary
Judgment Was Properly Granted

                        1.         Section
340.5 Applies to Bui’s Claim

Under section 340.5, a party
asserting a claim against a health care provider for professional negligence
must bring suit within three years of the injury or not more than one year
after the plaintiff discovers, or in the exercise of reasonable diligence
should have discovered, the injury, whichever occurs first.href="#_ftn6" name="_ftnref6" title="">[6]  The limitation of actions provisions of
section 340.5 apply to malpractice claims against dentists.  (Kitzig
v. Nordquist (2000) 81 Cal.App.4th 1384, 1391 (Kitzig).)

We must evaluate first whether the
trial court correctly held that section 340.5 was applicable to Bui’s
Complaint.  As Bui acknowledges, “[t]o
determine the statute of limitations which applies to a cause of action it is
necessary to identify the nature of the cause of action, i.e., the ‘gravamen’
of the cause of action. 
[Citations.]  ‘[T]he nature of the
right sued upon and not the form of action nor the relief demanded determines
the applicability of the statute of limitations under our code.’  [Citation.]” 
(Hensler v. City of Glendale (1994)
8 Cal.4th 1, 22-23 (Hensler).)  Stated otherwise, the relevant question for a
statute of limitations inquiry is a determination of “the primary interest
invaded by defendant’s wrongful conduct. [Citation.]”  (Barton
v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1207 (>Barton).) 

The sole claim alleged against
Hoang in the Complainthref="#_ftn7"
name="_ftnref7" title="">[7] was
captioned as one for “dental negligence.” 
(Capitalization and emphasis omitted.) 
Bui alleged that Hoang was a dentist licensed by the State of California
to practice dentistry, and that she held “herself out to possess that degree of
skill, ability, and learning common to prudent practitioners practicing
dentistry” in this state.  He alleged
further that, although he “maintains that he never saw, met, or received
treatment by [Hoang],” his dental records from Hi-Tech showed that she treated
him or supervised in treating him for dental problems between February and
April 2008, and that she billed his insurance for those alleged services.  Bui alleged that (1) between February and
April 2008, he was diagnosed, treated, and examined by a non-dentist who “used
dental instruments on [him,] causing him grave pain”; (2) the non-dentist’s and
Hoang’s respective names or initials appear adjacent to each other on Bui’s
records, indicating that Hoang “sign[ed] off on” treatment performed upon him;
(3) because of her superior training, Hoang “knew, or in the exercise of
reasonable diligence, should have known, of her negligence, misconduct, and
culpability” in that “[s]he should not have allowed the non-dentist to treat,
diagnos[e], or use dental instruments on [Bui]”; (4) he “was injured in body,
including but not limited to, pain cause by a drill handled by a non-dentist
under the direction and supervision of [Hoang]”; and (5) he “has incurred and
will continue to incur dental and related medical expense in treating the
injuries caused by [Hoang’s] negligence.” 


It is clear that the gravamen of
the Complaint was a claim of dental negligence. 
The right of Bui to be free from injury resulting from the negligent
treatment, diagnosis and care by dental professionals was “the primary interest
invaded by defendant’s wrongful conduct. 
[Citation.]”  (>Barton, supra, 43 Cal.App.4th at p. 1207.) 


Bui, however, argues that the
gravamen of the Complaint was not “professional negligence[; rather, it was]
facilitating dental treatment by an unlicensed person.”  He contends that a number of other legal
theories are “ ‘reasonably contemplated’ from the factual allegations” in the
Complaint.  He argues that these other
legal theories—which he identifies as ordinary negligence, false imprisonment,
civil conspiracy to conceal the unlawful practice of dentistry, breach of fiduciary
duty, aiding and abetting fraudulent concealment, and vicarious liability for
Nguyen’s wrongful acts—have limitations periods other than section 340.5.href="#_ftn8" name="_ftnref8" title="">[8]  We disagree with Bui’s contention.

The Complaint plainly is one for
dental negligence and was captioned as such by Bui himself.  Because “the pleadings set the boundaries of
the issues to be resolved at summary judgment” (Oakland Raiders v. National Football League (2005) 131
Cal.App.4th 621, 648 (Oakland
Raiders)), and “the plaintiff cannot bring up new, unpleaded issues in his
or her opposing papers [citation]” (Government
Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn.
4), we reject Bui’s attempt to have the allegations of the Complaint treated as
something they are not.  

Furthermore, even were we to credit
Bui’s contention that the Complaint may be fairly read to include claims other
than for dental negligence, these other purported claims do not change the fact
that the gravamen of the Complaint is professional negligence.  Sahadi
v. Scheaffer, supra, 155
Cal.App.4th 704 is instructive.  There,
the plaintiffs alleged a claim of malpractice against accountants, but also
asserted other related claims against the professionals.  We held: 
“The two-year statute of limitations prescribed by section 339, subdivision
(1) applies to actions for accounting malpractice.  [Citations.] 
And where the gravamen of the case is accounting negligence, the
two-year statute is applicable, notwithstanding the existence of other claims
against the professionals, such as misrepresentation, for which a different
statute of limitations might otherwise apply. 
[Citation.]”  (>Id. at pp. 714-715; see also >Hydro-Mill Co., Inc. v. Hayward, Tilton and
Rolapp Ins. (2004) 115 Cal.App.4th 1145, 1159 (Hydro-Mill) [because gravamen of suit against insurance broker was
professional negligence, the plaintiff could not “prolong the limitations
period by invoking a fiduciary theory of liability”].) 

Similarly, in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 400-401 (Carter),
the plaintiffs, children of a deceased patient, sued a hospital and a skilled
nursing facility for elder abuse, willful misconduct, and wrongful death.  The trial court sustained the hospital’s
demurrer to the complaint without leave to amend.  (Id.
at pp. 402-403.)  On review, the
appellate court concluded, inter alia, that the demurrer to the willful
misconduct cause of action was properly sustained without leave to amend
because it was time-barred.  (>Id. at pp. 412-414.)  It held the gravamen of the purported cause
of action for willful misconduct was a survivor action under section 377.20,
subdivision (a) for professional negligence. 
(Carter, at p. 413.)  As such, the claim was governed by the
statute of limitations for medical malpractice actions, section 340.5 (>Carter, at p. 413), and the court held
that because the plaintiffs suspected wrongdoing at the time of their father’s
death in August 2008, their failure to file suit within one year thereafter
resulted in the suit being untimely.  (>Id. at p. 414.) 

The unasserted claims that Bui
contends are “ â€˜reasonably contemplated’ ” from the allegations of the
Complaint—a contention we assume to be true only for purposes of this
analysis—are based upon an underlying claim that Bui was injured as a result of
dental negligence from treatment performed by Nguyen.  Regardless of whether Hoang actually treated
Bui, his claim against Hoang is based upon her affiliation with Hi-Tech and her
alleged connection with Nguyen,href="#_ftn9"
name="_ftnref9" title="">[9] who Bui
alleges directly caused him injury through her diagnosis, treatment, and
examination of him, and her “use[ of] dental instruments on [him, that]
caus[ed] him grave pain.” 

Therefore, similar to >Carter, supra, 198 Cal.App.4th 396, in which the willful misconduct claim
was deemed a claim for medical malpractice, the gravamen of the Complaint
against Hoang, regardless of how Bui may now characterize its allegations, is a
claim for professional negligence. 
Accordingly, the court correctly determined that section 340.5, the
statute of limitations applicable for dental malpractice claims (>Kitzig, supra, 81 Cal.App.4th at p. 1391), applied to Bui’s Complaint. 

                        2.>         Bui’s
Complaint Was Barred under Section 340.5

As noted, a dental negligence suit
under section 340.5 must be filed within three years of the injury or not more
than one year after the plaintiff discovers, or in the exercise of reasonable
diligence should have discovered, the injury, whichever occurs first.  “The patient is charged with ‘presumptive’
knowledge of his negligent
injury, and the statute commences to run, once he has ‘ “notice or
information of circumstances to put a reasonable person on inquiry, or has the
opportunity to obtain knowledge from sources open to his investigation . .
. .” ’  [Citations.]  Thus, when the patient’s ‘reasonably founded
suspicions [have been aroused],’ and [he or] she has actually ‘become alerted
to the necessity for investigation and pursuit of [his or] her remedies,’ the
one-year period for suit begins. 
[Citation.]”  (>Gutierrez v. Mofid (1985) 39 Cal.3d 892,
896-897.)  “A plaintiff need not be aware
of the specific ‘facts’ necessary to establish the claim; that is a process
contemplated by pretrial discovery.  Once
the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue,
she must decide whether to file suit or sit on her rights.  So long as a suspicion exists, it is clear
that the plaintiff must go find the facts; she cannot wait for the facts to
find her.”  (Jolly, supra, 44 Cal.3d
at p. 1111; see also Norgart v. Upjohn
Co. (1999) 21 Cal.4th 383, 397-398 (Norgart).)

For instance, in >Gray v. Reeves (1977) 76 Cal.App.3d 567,
571 (Gray), the defendant physician
prescribed prednisone in 1968 for the plaintiff-patient’s infectious hepatitis,
and he later developed a degenerative hip disease.  He testified in deposition that he was told
by the defendant in January 1971 (the last time the physician saw him) that the
disease “was ‘probably caused’ by the prednisone.”  (Ibid.)  The plaintiff also testified that between
February and May 1971, he had “ ‘felt that Dr. Reeves had done something
wrong.’ ”  (Id. at p. 573.)  The
plaintiff had corrective surgery in May 1971, but did not file his negligence
suit against the physician until August 1973. 
(Id. at p. 571.)  The appellate court, applying section 340.5,
held that the defendant had established by summary judgment that the
malpractice action was time-barred because it was filed more than one year
after the plaintiff discovered (or in the exercise of reasonable diligence
should have discovered) his injury and its negligent cause.  (Gray,
at p. 576.)  The court reasoned:  “Here Gray knew he was suffering from
deterioration of the hip socket, a malady different from what he was being
treated for. . . . He does not deny the cause of the injury was explained to
him on January 29, 1971, and he clearly understood the drug prednisone had
probably caused the problem.  He also
knew at that time Reeves was the only one who had prescribed the drug . . . [¶]
We believe this is enough to put Gray on notice an injury had occurred and the
drug Reeves prescribed was the actionable cause.  That the drug was negligently prescribed was
a matter constructively within Gray’s knowledge and he is chargeable with
knowledge of the fact.  In any event,
however, Gray admitted in the deposition that he knew Reeves had been wrong in
the prescribing of the drug and he knew that before May 1971 when he was
operated on . . . Clearly, the statute of limitations began to run on that
date.”  (Id. at p. 577, fn. omitted; see also Gutierrez v. Mofid, supra,
39 Cal.3d at p. 898 [“if one has suffered appreciable harm and knows or
suspects that professional blundering is its cause, the fact that an attorney
has not yet advised him does not postpone commencement of the limitations
period”].) 

Here, although Bui provided very
few definitive dates in either his deposition or in his opposition to the
summary judgment motion, he acknowledged that his treatment at Hi-Tech began in
February 2008.href="#_ftn10" name="_ftnref10"
title="">[10]  It is also undisputed that his upper teeth
were extracted by another dentist in May 2008; he received an upper denture on
May 9, 2008, a procedure about which he had no complaints; and Tran performed
implant surgery on Bui on June 13, 2008. 
Bui likewise did not dispute that a key event as alleged in both his
complaint against Nguyen and Hi-Tech and in his Complaint against Hoang—that a
new full upper denture became lodged in Bui’s mouth and had to be pried out,
causing extreme pain—occurred on or about June 27, 2008, more than 19 months
before Bui filed suit against Hoang. 
Lastly, Bui’s dental records reflected that his last treatment at
Hi-Tech occurred in November 2008, and Bui did not dispute this fact; in fact,
he admitted it in pleadings filed below. 


It is plain that the signal event
that resulted in the commencement of the one-year limitations period under
section 340.5 was the June 27, 2008 appointment with dental assistant
Nguyen.  Bui describes this dramatic incidenthref="#_ftn11" name="_ftnref11" title="">[11] as one
in which the new full upper denture became lodged in his mouth immediately;
that Nguyen took various measures—ones that were “extremely painful” to him—to
try to dislodge the denture, including attempting to “yank it out with [a]
dental pick” and later using a dental drill. 
Bui declared that he was “in extreme pain the entire” 45 minutes-plus
that the denture was stuck.  He also
declared that blame for the problem, according to what Nguyen told him at the
time, rested with Tran.  We conclude that
these facts, uncontroverted by moving party, were sufficient to give Bui, at
the very least, “ ‘presumptive’ knowledge of his negligent injury . . . [such
that his] ‘reasonably founded suspicions [have been aroused],’ [thereby
resulting in the commencement of the] one-year period for suit . . .”  (Gutierrez
v. Mofid, supra, 39 Cal.3d at pp.
896-897.) 

But even were we to conclude that
the statute of limitations was not triggered by Nguyen’s treatment and lodging
of the new full upper denture in Bui’s mouth on June 27, 2008, it is
uncontroverted that any dental treatment of Bui occurring at Hi-Tech ceased by
the end of November 2008.  In his
declaration, Bui stated that there were several office visits after June 27, in
which (1) Tran told Bui that it was Nguyen’s fault that the prior new denture
had become stuck; (2) a second new denture was placed by Nguyen, but the
procedure was unsuccessful because his mini-implants fell out shortly
afterward; (3) he was then fitted by Nguyen with the prior, damaged denture
with unsatisfactory results; and (4) he complained to Nguyen about the implant
and new denture procedure being unsuccessful, and he was “very hurt by
[Nguyen’s response] and her lack of caring.” 
Based upon this undisputed evidence—indeed, evidence presented by Bui,
himself—the one-year statute of limitations under section 340.5 commenced no
later than November 30, 2008 (if not earlier on June 27).  By the time his implant and denture treatment
at Hi-Tech had concluded by the end of November 2008, Bui knew (or reasonably
should have known) that he had been injured and knew or “suspect[ed] that
professional blundering [was] its cause.” 
(Gutierrez v. Mofid, >supra, 39 Cal.3d at p. 898.)  Yet Bui did not file his Complaint until
February 11, 2010.

Moreover, the fact that Bui may
have been ignorant of certain details supporting a claim of negligent treatment
at the time his dental treatment terminated does not prevent the limitations
period from commencing.  For example, in >Dolan v. Borelli (1993) 13 Cal.App.4th
816, 820 (Dolan), the plaintiff had
hand surgery for carpal tunnel syndrome, and the surgeon told Dolan that she
should be pain-free within 60 days after the surgery.  She was still experiencing pain after that
time period, and she then believed that the surgery had been performed
improperly.  (Ibid.)  She later consulted another physician, who
performed a second surgery, at which time the precise nature of the first
surgeon’s malpractice was ascertained.  (>Ibid.)  The appellate court
rejected the plaintiff’s contention that the limitations period under section
340.5 did not commence until after the second surgery, reasoning:  “[T]he essential inquiry is when did [the
patient] suspect [the first doctor] was negligent, not when did she learn
precisely how he was negligent.”  (>Dolan, at p. 824; see also >Knowles v. Superior Court (2004) 118
Cal.App.4th 1290, 1298 (Knowles).) 

Lastly, we
reject Bui’s claim that the statute of limitations did not commence until
sometime after his dental treatment terminated, i.e., at the time when he
discovered that Hoang had allegedly falsely claimed to Bui’s insurer that she
had treated him.href="#_ftn12" name="_ftnref12"
title="">[12]  It is not the discovery of the person
committing the alleged wrong that triggers the statute; it is the knowledge
(actual or constructive) of the claim that controls.  “[T]he plaintiff may discover, or have reason
to discover, the cause of action even if he does not suspect, or have reason to
suspect, the identity of the defendant. 
[Citation.]  That is because the
identity of the defendant is not an element of any cause of action.  [Citation.] 
It follows that failure to discover, or have reason to discover, the
identity of the defendant does not postpone the accrual of a cause of action,
whereas a like failure concerning the cause of action itself does.”  (Norgart,
supra, 21 Cal.4th at p. 399, fn.
omitted; see also Knowles, >supra, 118 Cal.App.4th at p. 1299.)

The commencement date of the
one-year statute of limitations under section 340.5 was June 27, 2008, or, at
the latest, November 30, 2008.  Because
Bui failed to bring suit against Hoang until February 11, 2010, the action was
time-barred.  Therefore, the court
properly granted summary judgment on this basis.href="#_ftn13" name="_ftnref13" title="">[13] 

II.         >The Motion to Amend the Complaint

            A.        Background
and Contentions

After Hoang filed her summary
judgment motion, Bui filed a motion to amend his complaint.  Citing the liberal policy of allowing
pleading amendments (see Huff v. Wilkins (2006)
138 Cal.App.4th 732, 746 (Huff)),
Bui argued that Hoang would not be prejudiced by the amendment and that the new
theories of liability in the proposed second amended complaint were based upon
the same underlying facts alleged when the action was initiated.  Hoang opposed the motion to amend, contending
that the motion (1) failed to identify any reasons for the amendment; (2) was
untimely; (3) was prejudicial to Hoang because, inter alia, the proposed
amended pleading included a prayer for punitive damages; and (4) would
needlessly cause the continuance of trial and further cost to all parties
resulting from the additional discovery required to address the additional
claims. 

The motion to amend was denied by
the court.  It concluded, inter alia,
that the new claims asserted in the proposed second amended complaint were
time-barred. 

Bui argues that the court abused
its discretion in denying the motion to amend. 
He argues that the proposed amended pleading “sought to clarify the
pleadings and add theories of liability.” 
He urges that, contrary to the trial court’s finding, the new causes of
action in the proposed second amended complaint were not time-barred because
section 340.5 was inapplicable to those claims. 
Hoang responds that the court did not abuse its discretion in denying
leave to amend because the proposed claims for battery and negligence per se
were time-barred under section 340.5, the unfair trade practices claim was
meritless on its face, and, in any event, Bui failed to offer any excuse for
his delay in seeking leave to amend. 

            B.        Court’s
Denial of Leave to Amend Was Not an Abuse of Discretion

“ ‘ “[T]he trial court has wide
discretion in allowing the amendment of any pleading [citations], [and] as a
matter of policy the ruling of the trial court in such matters will be upheld
unless a manifest or gross abuse of discretion is shown.  [Citations.]” ’  [Citations.] 
Courts must apply a policy of great liberality in permitting amendments
to the complaint at any stage of the proceedings, up to and including trial,
when no prejudice is shown to the adverse party.  [Citation.]  However, ‘ “even if a good amendment is
proposed in proper form, unwarranted delay in presenting it may—of itself—be a
valid reason for denial.” ’  [Citation.]  [¶]  .
. . Leave to amend is properly denied when the facts are undisputed and as a
substantive matter no liability exists under the plaintiff’s new theory.  [Citation.]” 
(Huff, supra, 138 Cal.App.4th at p. 746.)  “Although there is a strong policy in favor
of liberal allowance of amendments, the trial court’s discretion will not be
disturbed on appeal unless it clearly has been abused.  [Citation.] 
. . . [I]f the proposed amendment fails to state a cause of action, it
is proper to deny leave to amend. 
[Citation.]”  (>Foxborough v. Van Atta (1994) 26
Cal.App.4th 217, 230; see also Oakland
Raiders, supra, 131
Cal.App.4th at p. 654 [court properly denied leave to amend sought after
granting of summary adjudication motion, where proposed new claims “were
without merit as a matter of law”].)  And
the trial court may properly deny leave to amend when the claim alleged in the
proposed pleading is time-barred.  (>Foxborough v. Van Atta, at p. 231; see
also Dominguez v. City of Alhambra
(1981) 118 Cal.App.3d 237, 243.)

We agree with the trial court that
the proposed second amended complaint alleged claims that were
time-barred.  As we have discussed, (see
pt. I.C.1, ante), we ascertain the
applicable statute of limitations by determining “the ‘gravamen’ of the cause
of action.  [Citations.]”  (Hensler,
supra, 8 Cal.4th at pp
22-23.)  Here, the three proposed new
causes of action were identified by Bui as claims for unfair trade practices in
violation of the unfair competition law, Business and Professions Code section
17200 (the UCL claim); negligence per se; and battery.href="#_ftn14" name="_ftnref14" title="">[14]  In the UCL claim, Bui alleged that Hoang
engaged in unlawful practices “by enabling and facilitating the practice of
dentistry by a non-dentist.”  He alleged,
inter alia, that Hoang engaged in unprofessional conduct as a dentist by
“knowingly permit[ting] grossly negligent treatment by a dental hygienist
[Nguyen]”; she “was in effect the front man [sic] for [Nguyen’s] multiple acts of unlicensed practice of
dentistry,” including Nguyen’s actions during the June 27, 2008 appointment;
and that Nguyen’s “acts[, which] harmed, in the extreme, [Bui]” would not have
occurred, “but for Dr. Hoang’s willful neglect of her professional
responsibility.”  Bui alleged as part of
the proposed negligence per se claim that Hoang “aided and abetted the
unlicensed practice of [Nguyen and Hi-Tech]”; he was injured as a direct result
of Hoang’s “multiple acts of unlawful and unprofessional conduct” because
Nguyen would not have otherwise treated him; and Hoang’s alleged conduct was
not allowed under her dentistry license. 
And Bui alleged in the proposed battery claim that Nguyen caused a
denture to become lodged in his mouth, and she “yanked on it and when that
didn’t work, used an electric dental appliance to free the denture,” procedures
that were “grossly negligent” and “extremely painful”; and Hoang was “vicariously
liable for this battery as she enabled [Nguyen’s] unauthorized practice of
dentistry.” 

The gravamen of each of the three
proposed causes of action was dental negligence.  As we discussed in connection with Bui’s
contention that his unasserted claims in the Complaint precluded summary
judgment (see pt. I.C.1., ante), the
UCL, battery and negligence per se claims in the proposed Second Amended
Complaint are all based upon an underlying claim that Bui was injured as a
result of negligence stemming from dental treatment performed by Nguyen.  His claims against Hoang are founded upon her
professional acts and omissions as a dentist and her affiliation with
Hi-Tech.  Therefore, regardless of the
form of the action, the nature of the right sued upon is the determinative
question.  (Hydro-Mill, supra, 115
Cal.App.4th at p. 1159.)  Here, the
nature of the right sued upon was Bui’s status as a patient, the actions taken
toward him in the treatment of his dental problems, and the injuries he
allegedly sustained as a result of that treatment.  Bui cannot, therefore, escape the limitations
provisions of section 340.5 governing href="http://www.sandiegohealthdirectory.com/">dental malpractice claims by
attempting to cast those claims under different forms of action.  (See, e.g., Carter, supra, 198
Cal.App.4th 396, 413 [gravamen of willful misconduct claim against hospital was
survivor action for professional negligence]; Sahadi v. Scheaffer, supra,
155 Cal.App.4th at pp. 714-715 [misrepresentation claim against accountants
governed by statute of limitations for accounting negligence]; >Stoll v. Superior Court (1992) 9
Cal.App.4th 1362, 1368 [breach of fiduciary duty claim against attorney
governed by attorney malpractice statute of limitations].)  

As we have discussed (see pt.
I.C.2., ante), Bui’s claim for dental
negligence in the Complaint was barred by the applicable statute of
limitations, section 340.5.  Because the
new claims alleged in the proposed second amended complaint were governed by
the same statute and were thus also time-barred, the court did not abuse its
discretion in denying the motion for leave to amend.  (Foxborough
v. Van Atta, supra, 26
Cal.App.4th at p. 231.)



DISPOSITION

The judgment entered on the
underlying orders granting summary judgment and denying Bui’s motion for leave
to amend is affirmed.

 

 

 

 

 

 

 

                                                                                                           
               
      

                                                                                    Márquez,
J.

 

 

 

 

WE
CONCUR:

 

 

 

 

                                          
                      

        Elia, Acting P.J.

 

 

 

 

 

 

 

 

 

                                        
                        

        Bamattre-Manoukian, J.