Filed 4/20/17 Chiesa v. Mark Twain St. Joseph’s Hospital CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Calaveras)
----




DONNA CHIESA,

Plaintiff and Appellant,

v.

MARK TWAIN ST. JOSEPH’S HOSPITAL et al.,

Defendants and Respondents.


C078510

(Super. Ct. No. 13CV39458)


This appeal arises out of a wrongful death medical malpractice action brought by Donna Chiesa against Dignity Health doing business as Mark Twain St. Joseph’s Hospital (the Hospital) on grounds the Hospital negligently caused the death of her mother, Sarah V. McDowell. The trial court granted the Hospital’s motion for summary judgment on grounds Chiesa filed her complaint after the one-year statute of limitations imposed by Code of Civil Procedure section 340.5 (section 340.5) had elapsed.
On appeal, Chiesa contends she did not discover the grounds for her medical malpractice case until she was notified by a law firm she had retained to bring an action against her sister for elder abuse.
We conclude the trial court correctly determined Chiesa’s expressions of concern about the medical care her mother was receiving, her ordering of an autopsy, and consultation with law firms all sufficed to trigger the running of the one-year statute of limitations. By waiting more than a year to file her complaint, Chiesa missed the statute of limitations imposed by section 340.5. Accordingly, we affirm the judgment.
BACKGROUND
Complaint
On July 22, 2013, Chiesa filed a wrongful death medical malpractice complaint alleging the Hospital negligently caused the death of her mother, McDowell. An amended complaint was filed on September 24, 2013. The amended complaint alleged the following: In February 2012, McDowell was admitted to the Hospital for lower abdominal pain and having fecal matter exiting through her mouth. According to the amended complaint, “The medical treatment of the deceased was such that the correctable medical condition and problems which were minor in nature at the start, but left untreated in a proper, professional and consistent manner lead to the torturous and painful death of the deceased. [¶] The deceased died in May 2012, due to the gastrointestinal condition that the defendant failed to take seriously and treat properly.”
The amended complaint also alleges the treating physician “ordered and had administered to the patient morphine in doses that were high enough that the deceased suffered side effects from this medication” and the Hospital “actually performed a surgical procedure on the patient, but failed to treat the serious condition of the deceased’s colon and bowel problem, which was blatantly ignored during the surgical procedure for the appendectomy.”
Motion for Summary Judgment
In August 2014, the Hospital moved for summary judgment on grounds Chiesa’s action was barred by section 340.5’s one-year statute of limitations and her claims lacked merit. In support of the motion, the Hospital submitted a statement of undisputed facts that included the following:
On April 20, 2012, McDowell arrived by ambulance at the Hospital with complaints of abdominal pain. The next day, McDowell had surgery and was intended to be returned to intensive care. At some point within the first two days of McDowell’s admission, Chiesa complained to a nurse about the care her mother was receiving.
Because McDowell’s condition did not improve, she underwent a second surgery on April 24, 2012. McDowell’s condition still did not improve and she underwent a third surgery on April 27, 2012. McDowell died on May 6, 2012.
On May 16, 2012, Chiesa retained American Medical Forensic Specialists to conduct an autopsy and toxicology test on McDowell’s body as well as review her medical records. To ensure the autopsy could be conducted, Chiesa sent an e-mail to the funeral home holding McDowell’s body. Chiesa’s e-mail instructed the funeral home not to cremate the body and noted Chiesa had “pending questions about [her] mother’s death.” To this end, Chiesa had “retained a couple of law firms” with the intention of pursuing the matter by “aggressive legal means.”
Opposition
Chiesa filed an opposition to the motion for summary judgment in which she argued she did not know “of any wrongdoing on the part of defendant until such time as [she] was notified” in November 2012. Chiesa’s opposition does not identify who notified her in November 2012, nor was the opposition accompanied by a separate statement of facts.
Summary Judgment
In January 2015, the trial court granted the Hospital’s motion for summary judgment on grounds Chiesa did not file her complaint within the statute of limitations period provided by section 340.5. The trial court found Chiesa “clearly had suspicions within days of her mother’s death.”
From the judgment of dismissal, Chiesa appeals.
DISCUSSION
Chiesa does not dispute the one-year statute of limitations imposed by section 340.5 applies to her causes of action. Instead, she argues the Hospital, in moving for summary judgment, erroneously “relied on an email that spoke of a history of elder abuse which [Chiesa] did not have with the [Hospital] and therefore there was no necessity to investigate elder abuse or negligence on the part of [the Hospital].” Chiesa asserts her “suspicion that the sister Lorna McDowell had killed the mother” explained the purpose behind the e-mail. We conclude the trial court properly granted the Hospital’s motion for summary judgment.
A.
Standard of Review
In an appeal from a judgment entered after an order granting summary judgment, we apply the independent standard of review. (Vebr v. Culp (2015) 241 Cal.App.4th 1044, 1050.) “A motion for summary judgment is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) ‘ “The moving party bears the burden of showing the court that the plaintiff ‘has not established, and cannot reasonably expect to establish, a prima facie case. . . .’ [Citation.]” [Citation.] “[O]nce a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action. . . .’ [Citations.]” [Citation.]’ (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)” (Vebr, at pp. 1050–1051.)
B.
Section 340.5
In pertinent part, section 340.5 provides: “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be . . . one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury . . . .”
As to the discovery rule, the California Supreme Court has explained that “the statute of limitations begins to run when the plaintiff suspects or should suspect that her [or his] injury was caused by wrongdoing, that someone has done something wrong to her [or him] . . . . [T]he limitations period begins once the plaintiff ‘ “ ‘has notice or information of circumstances to put a reasonable person on inquiry. . . .’ ” ’ [Citations.] 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 [or he] must decide whether to file suit or sit on her [or his] rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she [or he] cannot wait for the facts to find her [or him].” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110–1011, fn. omitted.)
Under section 340.5, there are “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. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110.) The first to occur under these two tests begins the limitations period.” (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.)
C.
Running of the Statute of Limitations
The uncontradicted statement of facts introduced by the Hospital in support of its motion for summary judgment supports the trial court’s conclusion the statute of limitations began to run by June 6, 2012. By June 6, 2012, Chiesa had retained a medical forensics company to conduct an autopsy and toxicology test on her mother’s body. Chiesa then notified the funeral home that held her mother’s body that it should delay cremation to allow for the autopsy because she had “pending questions about [her] mother’s death.” The autopsy was conducted on May 19, 2012. By that time, Chiesa had already “retained a couple of law firms” with the intent to bring an action for medical negligence in the treatment of her mother by the Hospital. On June 6, 2012, Chiesa received the death certificate that listed her mother’s cause of death.
These undisputed facts establish Chiesa demonstrated actual suspicion of wrongdoing by the Hospital, conducted an investigation by paying for an autopsy, and even consulted with legal counsel by June 6, 2012. Chiesa delayed for more than one year before filing her complaint on July 22, 2013. By that time, her action was barred under section 340.5. Consequently, the trial court properly granted the Hospital’s motion for summary judgment.
DISPOSITION
The judgment is affirmed. Dignity Health doing business as Mark Twain St. Joseph’s Hospital shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)



/s/
HOCH, J.


We concur:



/s/
HULL, Acting P. J.



/s/
RENNER, J.