Lopez v. Dodd

Filed 10/19/06 Lopez v. Dodd CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Plaintiffs Sylvia and Terry Lopez sued Philip Dodd, M.D., and Lodi Memorial Hospital for medical negligence and loss of consortium following Mrs. Lopez’s surgery in July 2001. The trial court granted summary judgment in favor of Lodi Memorial Hospital (the Hospital) in January 2005, concluding that plaintiffs’ action was barred by the one-year statute of limitations. (Code Civ. Proc., § 340.5.)^[1] Plaintiffs did not appeal from the judgment entered on that ruling. Five months later, Dr. Dodd successfully moved for summary judgment, arguing: (1) the judgment in favor of the Hospital applied equally to him under principles of collateral estoppel; and (2) there was no triable issue of fact with regard to plaintiffs’ actual and constructive knowledge of their injury more than one year before they gave notice of intent to file their complaint.

On appeal, plaintiffs contend the judgment in favor of the Hospital is no bar to their action against Dr. Dodd and the trial court erred in taking judicial notice of the truth of its earlier finding. Plaintiffs also argue a triable issue of material fact exists as to when the cause of action accrued against Dr. Dodd. Even if we were to agree with plaintiffs that there is a triable issue of fact regarding the time of discovery, we conclude the court was bound by its earlier ruling that plaintiffs’ claims were barred by the one-year statute of limitations. Accordingly, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On July 19, 2001, Dr. Dodd performed a hysterectomy on Mrs. Lopez. The morning after surgery, Mrs. Lopez experienced back pain from her armpit to her hip on the right side. Mr. Lopez agreed his wife began complaining of back pain after the procedure. According to Mrs. Lopez, the pain continued at a level of “over 10” on a scale of one to 10, and was not impacted by Tylenol while she was in the hospital. Mrs. Lopez had never experienced any type of back pain before the hysterectomy. The pain continued at a level of more than “10” during the four weeks following the surgery. When Mrs. Lopez reported the back pain to Dr. Dodd, he reassured her it was normal post-operative pain and prescribed Vicodin.

About four weeks after the surgery, Mrs. Lopez experienced liquid leaking from her vagina. The leakage occurred when she stood up, coughed, sneezed, sat down or bent over. According to Mrs. Lopez, she had never experienced leakage of urine before her hysterectomy. She went back to see Dr. Dodd.

During the office visit, Dr. Dodd placed dye in Mrs. Lopez’s bladder and tampons in her vagina to determine if the dye leaked onto the tampons. He told Mrs. Lopez he did not know what was wrong and referred her to Dr. Thomas A. Sorbera, a urologist, the same day. Mrs. Lopez understood she was going to see Dr. Sorbera about the leakage problem. Sorbera surgically inserted a stent on August 20, 2001, which stopped the leakage and somewhat alleviated the pain Mrs. Lopez was experiencing. Mrs. Lopez did not discuss the cause of her pain with Dr. Sorbera and he gave her no reason to suspect it was a result of something Dr. Dodd had done wrong during the hysterectomy.

On January 9, 2002, Mr. and Mrs. Lopez saw Dr. Harvey Hashimoto, Mrs. Lopez’s primary care physician. They asked Dr. Hashimoto to refer them to another urologist for a second opinion. Dr. Hashimoto stated Mrs. Lopez indicated to him that she and her husband “were not sure if perhaps the ureter was damaged during the original hysterectomy.” They told Dr. Hashimoto that Dr. Dodd was “evasive on this issue.” When questioned in his deposition, Dr. Hashimoto indicated he recorded the statements plaintiffs made to him during the office visit in his chart notes which were prepared within one week of the actual visit.

Mrs. Lopez stated in a declaration filed in response to Dr. Dodd’s motion that she had no medical education, training or experience. Additionally, she relied on and trusted Dr. Dodd while he was her physician. Mrs. Lopez disputed Dr. Hashimoto’s account of what was said at the January 9, 2002, appointment, and stated she did “not recall discussing any possible damage to [her] ureter . . . with Dr. Hashimoto.”

Dr. Hashimoto referred Mrs. Lopez to Dr. Peter Garbeff, whom she saw on February 7, 2002. At that appointment, Mrs. Lopez was advised for the first time that something might be wrong with one of her kidneys as a result of the hysterectomy. Only then did she suspect her medical problems resulted from something Dr. Dodd had done wrong.

On January 22, 2003, plaintiffs served the Hospital and Dr. Dodd with their notice of intention to commence action. The notice recited that “This action will be based on (but not necessarily limited to) the failure to properly care for, treat, diagnose and prescribe for Sylvia Lopez. Such inadequate care and treatment caused Sylvia Lopez to suffer from significant and persistent injuries secondary to surgery which was performed in July, 2001; the injuries caused by such care include, but are not limited to, kidney damage. Sylvia and Terry Lopez first learned in February, 2002, of such kidney damage having been caused by the July, 2001, surgery.”

The complaint, filed April 22, 2003, alleged causes of action for professional negligence and loss of consortium against the Hospital and Dr. Dodd. The complaint specifically alleges that “[p]rior to, subsequent to and including July, 2001, the defendants, and each of them, were negligent and careless in and about the medical prescription for care, treatment and diagnosis of plaintiff SYLVIA LOPEZ, and negligently and carelessly treated, diagnosed and prescribed for her, and carelessly failed and omitted to properly prescribe for, care, treat and diagnose her.” Plaintiffs repeated their claim that Mrs. Lopez was advised for the first time in February 2002 “of facts which caused her to suspect that professional negligence may have been committed by the defendants herein.”

The Hospital moved for summary judgment on two grounds: (1) that plaintiffs’ claims were barred because the one-year statute of limitations began to run on January 9, 2002, at the time of Mrs. Lopez’s appointment with Dr. Hashimoto; and (2) that the evidence showed the Hospital employees acted in accordance with the applicable standard of care. Plaintiffs challenged Dr. Hashimoto’s version of his conversation with plaintiffs. Mrs. Lopez stated that she could not recall discussing any possible damage to her ureter with Dr. Hashimoto. She also maintained the date of discovery was a question of fact for the jury.

The court made the following findings in its January 11, 2005, order granting the Hospital’s motion for summary judgment based on the statute of limitations claim: “If plaintiff SYLVIA LOPEZ’S testimony is believed, she had inquiry notice of possible wrongdoing as early as July 20, 2001, the day after the hysterectomy surgery, and most definitely by January 9, 2002.” The court relied on Dr. Hashimoto’s testimony that Mrs. Lopez “told him that she was not sure if perhaps the ureter was damaged during the original hysterectomy,” noting that Mrs. Lopez “is unable to dispute this admission because she testified that she could not recall anything about this first visit with Dr. Hashimoto.” Plaintiffs did not appeal from the judgment entered in favor of the Hospital.

Dr. Dodd moved for summary judgment in June 2005, citing the same facts the Hospital had cited in its successful motion. He also requested judicial notice of the judgment on the Hospital’s motion and argued the judgment applied equally to Dr. Dodd under principles of res judicata and collateral estoppel. In response, plaintiffs argued that Mrs. Lopez’s declaration controverted Dr. Hashimoto’s account of his January 9, 2002, conversation with plaintiffs, and the date of discovery was a question of fact for the jury. In addition, plaintiffs suggested Mrs. Lopez’s continuing relationship with Dr. Dodd tolled the statute of limitations. They also objected to the scope of Dr. Dodd’s request for judicial notice.

The court granted Dr. Dodd’s request for judicial notice, including “the finding as a matter of law, that the statute of limitations expired as to Defendant Lodi Memorial as of January 9, 2002 upon Plaintiff’s constructive notice of injury and wrongdoing.” It also ruled that “[r]egardless of whether the court accepts the ruling and findings in the prior motion by Defendant Lodi Memorial or whether it makes an independent review of the evidence as it applies to Dr. Dodd as the moving defendant, the fact remains, based on the evidence before the court, Plaintiffs had constructive notice of the injury and wrongdoing . . . no later that [sic] January 9, 2002, which would trigger the statue of limitations to begin.” It found “no evidence which supports a tolling argument based on a continuing Doctor-Patient relationship.”

This appeal ensued.

DISCUSSION

I

Standard of Review

Familiar principles govern our review of the court’s grant of summary judgment in favor of Dr. Dodd. On motion for summary judgment, “[a] defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (§ 437c, subd. (c).)

On a motion for summary judgment “any adverse party may oppose the motion, and, ‘where appropriate,’ must present evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

On appeal, we review the trial court’s grant of summary judgment de novo, focusing on the ruling, not the rationale. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) “In independently reviewing a motion for summary judgment, we apply the same three-step analysis used by the superior court. We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent’s claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue. [Citation.] Because of the drastic nature of the summary judgment procedure and the importance of safeguarding the adverse party’s right to a trial, the moving party must make a strong showing. His affidavits are strictly construed and the opposing party’s are liberally construed. [Citation.]” (Ibid.)

II

Collateral Estoppel

The pivotal issue in this case is whether the court erred in ruling that its earlier judgment finding the plaintiffs’ action against the Hospital was barred by the one-year statute of limitations also barred relitigation of the merits of the statute of limitations defense raised by Dr. Dodd.

“Collateral estoppel bars a party to an action, or one in privity, from subsequently relitigating issues actually litigated and finally decided against it in the earlier action. [Citations.]” (United States Golf Ass'n v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 615.) “[A] party will be collaterally estopped from relitigating an issue only if (1) the issue decided in a prior adjudication is identical with that presented in the action in question; and (2) there was a final judgment on the merits; and (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication. [Citation.]” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 874 (Clemmer), italics omitted; accord, Kilroy v. State of California (2004) 119 Cal.App.4th 140, 149 (Kilroy).) If these requirements are met, a court’s ruling on the applicability of the statute of limitations as to one defendant extends to the remaining defendants in the same action. (McClain v. Rush (1989) 216 Cal.App.3d 18, 25-26, 28-29 (McClain).)

“‘The party asserting collateral estoppel bears the burden of establishing these requirements.’ [Citations.] Even if these threshold requirements are established, res judicata will not be applied ‘if injustice would result or if the public interest requires that relitigation not be foreclosed.’ [Citation.]” (Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 181.) Moreover, due process requires that in addition to being a party or in privity with a party to the prior action, “the circumstances must have been such that the party to be estopped should reasonably have expected to be bound by the prior adjudication. [Citation.]” (Clemmer, supra, 22 Cal.3d at p. 875.)

Here, both motions for summary judgment raised the statute of limitations defense under section 340.5. Under that statute, a plaintiff is deemed to have “discovered“ his or her injuries and set the statute of limitations in motion when the plaintiff “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. . . .” (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101-103, italics omitted.) “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. . . . 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 v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111, fn. omitted.) “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.]” (Id. at p. 1112; see Graham v. Hansen (1982) 128 Cal.App.3d 965, 972.)

We begin by rejecting plaintiffs’ argument that the court erred in taking judicial notice of the factual findings regarding the time of discovery contained in the January 2005 order granting summary judgment for the Hospital. In support of this argument, plaintiffs quote Kilroy, where this court explained that, “‘The court may in its discretion take judicial notice of any court record in the United States. (Evid. Code, § 451.) This includes any orders, findings of facts and conclusions of law, and judgments within court records. [Citations.] However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. [Citation.]’” (Kilroy, supra, 119 Cal.App.4th at p. 145, italics added.) In Kilroy, plaintiffs sought use of a federal judge’s factual findings made in an order suppressing evidence as a basis for denying summary judgment. However, later in the opinion, we clarified that limitations on judicial notice do not bar the use of factual findings for purposes of collateral estoppel. “We agree . . . that factual findings in a prior judicial opinion are not a proper subject of judicial notice. However, that does not end our inquiry. ‘Whether a factual finding is true is a different question than whether the truth of that factual finding may or may not be subsequently litigated a second time. The doctrines of res judicata and collateral estoppel will, when they apply, serve to bar relitigation of a factual dispute even in those instances where the factual dispute was erroneously decided in favor of a party who did not testify truthfully.’ [Citation.] In other words, even though a factual finding in a prior judicial decision may not establish the truth of that fact for purposes of judicial notice, the finding itself may be a proper subject of judicial notice if it has a res judicata or collateral estoppel effect in a subsequent action.“ (Id. at p. 148, italics added.)

Next, plaintiffs contend that even if the prior factual findings were properly before the court, Dr. Dodd failed to establish the requirements for applying collateral estoppel. First, plaintiffs argue the issue regarding when they discovered or should have discovered Dr. Dodd’s negligence was not the same issue as the issue presented in the Hospital’s motion for summary judgment. Plaintiffs fail, however, to factually distinguish between Dr. Dodd’s alleged negligence and the Hospital’s alleged negligence. No facts are alleged to suggest plaintiffs knew or should have known of the Hospital’s negligence at a different time than when they were placed on inquiry notice of Dr. Dodd’s negligence. And as we explained, a plaintiff need not be aware of the specific facts necessary to establish a claim. (Jolly, supra, 44 Cal.3d at p. 1111.) Instead, “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.” (Id. at p. 1110, italics added, fn. omitted.)

Plaintiffs cite Sanchez in support of their argument that the issues in Dr. Dodd’s motion for summary judgment were different from the issues before the court in the earlier motion. They argue that because Mrs. Lopez continued to be treated by Dr. Dodd and was entitled to rely on his professional skill and judgment while under his care, “the degree of diligence required . . . in ferreting out and learning of the negligent causes of [her] condition [was] diminished.” (Sanchez, supra, 18 Cal.3d at p. 102.) The difficulty with this argument is that plaintiffs provided no evidence that Dr. Dodd continued to advise or treat Mrs. Lopez for the leakage problem after he referred her to Dr. Sorbera in August 2001. In ruling on the motions for summary judgment, the court relied on facts up to and including Mrs. Lopez’s January 7, 2002, appointment with Dr. Hashimoto, her primary care physician.

On the question of identity of issues, plaintiffs also claim the Hospital was “only a secondary defendant with respect to any malpractice committed during surgery.” However, plaintiffs’ complaint, which “delimit[s] the scope of the issues” on summary judgment (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381), is not that specific. It simply alleges that “[p]rior to, subsequent to and including July, 2001, the defendants, and each of them, were negligent and careless in and about the medical prescription for care, treatment and diagnosis of plaintiff SYLVIA LOPEZ, and negligently and carelessly treated, diagnosed and prescribed for her, and carelessly failed and omitted to properly prescribe for, care, treat and diagnose her.” (Italics added.)

Citing Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77 (Johnson), and Koch v. Rodlin Enterprises (1990) 223 Cal.App.3d 1591, 1595-1596 (Koch), plaintiffs assert that the judgment in favor of the Hospital was not a judgment on the merits because it was based on the statute of limitations. These cases hold that termination of a legal action on grounds of laches or the statute of limitations is considered a technical or procedural, not a substantive, termination, and does not foreclose later consideration of the merits of the underlying action. (Johnson, supra, 24 Cal.4th at p. 77, Koch, supra, 223 Cal.App.3d at p. 1596.) They do not, however, apply to the circumstances of the case before us. Here, the merit of the statute of limitations defense was litigated in the Hospital’s summary judgment motion and was at issue in Dr. Dodd’s motion for summary judgment; the merit of the underlying negligence claim was not at issue in Dr. Dodd’s motion.

Finally, plaintiffs argue that allowing the judgment in favor of the Hospital to operate as collateral estoppel as to Dr. Dodd “would be highly unfair and would not serve the fundamental principals [sic] of collateral estoppel.” They argue collateral estoppel does not apply where the party sought to be estopped “‘did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.’ [Citation.]” (Long Beach Grand Prix Assn. v. Hunt (1994) 25 Cal.App.4th 1195, 1202.) Plaintiffs maintain they had “little incentive to oppose Lodi Memorial’s motion for summary judgment and almost no incentive to appeal it” because Lodi Memorial was considered a minor player. However, plaintiff’s argument is unsupported by the record. They opposed the Hospital’s motion with the same arguments and facts used in their opposition to Dr. Dodd’s motion. Plaintiffs do not argue they did not expect to be bound by the prior adjudication. (See Clemmer, supra, 22 Cal.3d at p. 875.)^[3]

Based on the foregoing, we conclude collateral estoppel applies and the prior judgment in favor of the Hospital bars relitigation of the statute of limitations issue raised in Dr. Dodd’s motion. Accordingly, the court did not err in granting summary judgment in favor of Dr. Dodd.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 27(a)(4).)

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P.J.

SIMS , J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1] Hereafter, undesignated statutory references are to the Code of Civil Procedure. Section 340.5 reads in part: “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 three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled” for reasons inapplicable in this case. (Italics added.)

^[2] We take the facts relating to plaintiffs’ alleged injury from the parties’ separate statements of undisputed material facts. We also summarize the parties’ arguments for and against summary judgment, and the rationale for the trial court’s rulings, as relevant to the question whether collateral estoppel applies.

^[3] Plaintiffs also contend the trial court’s order granting summary judgment in favor of the Hospital did not satisfy the statutory requirement of section 437c, subdivision (g) that it “specifically refer to the evidence offered by plaintiffs in opposition to Lodi Memorial’s motion.” Because plaintiffs claim no prejudice from this claimed error in form, we do not address it in our discussion of collateral estoppel.