Filed 11/8/18 Turner v. Palo Alto Medical Foundation Group, Inc. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DAVID TURNER, Plaintiff and Appellant, v. PALO ALTO MEDICAL FOUNDATION GROUP, INC., ET AL., Defendants and Respondents.

H044586 (Santa Cruz County Super. Ct. No. 16CV00101)

In January 2016, David Turner, proceeding as a self-represented litigant, sued Dr. Thomas J. Welle, D.O. and Palo Alto Medical Foundation Group, Inc. (“Palo Alto”), for violation of the Americans With Disability Act (“ADA”), and medical malpractice associated with treatment of a shoulder condition. The trial court sustained Welle’s and Palo Alto’s demurrer to the second amended complaint without leave to amend on the grounds that it fails to allege facts sufficient to state a cause of action, it is uncertain, and the claims are time barred by the one-year statute of limitations. (Code of Civil Procedure § 340.5.)[1] We affirm the judgment.

1. STATEMENT OF THE CASE

Turner filed his initial complaint against Welle, Palo Alto, Dr. Rosemarie Hendrix, Dr. Paul Berman and the County of Santa Cruz Health Services Agency for medical malpractice on January 15, 2016.[2] Turner sought compensatory and punitive damages. The gravamen of the complaint was that the defendants failed to order proper diagnostic tests, and refused to operate on his shoulder when he requested it.

On June 24, 2016, Welle and Palo Alto filed a demurrer on the grounds that the complaint failed to allege facts sufficient to state a cause of action (§ 430.10, subd. (e)), was uncertain (§ 430.10, subd. (f)), and the claim for medical malpractice was time barred by the one-year statute of limitations (§ 340.5.). Welle and Palo Alto also filed a motion to strike Turner’s request for punitive damages. On August 8, 2016, prior to the hearing on the demurrer, Turner filed a first amended complaint that he did not serve on Welle or Palo Alto.

The trial court sustained Welle’s and Palo Alto’s demurrer to the complaint on August 17, 2016, on the grounds that it failed to allege facts sufficient to state a cause of action, was uncertain and was barred by the one-year statute of limitations. (§ 340.5.) The court deemed the motion to strike Turner’s request for punitive damages moot based on its ruling sustaining the demurrer.

On September 14, 2016, Turner filed a second amended complaint, but did not serve it on Welle or Palo Alto. On November 16, 2016, the court denied Turner’s motion to file a third amended complaint, and ordered that he serve the second amended complaint on all defendants by December 16, 2016.

On December 12, 2016, Welle and Palo Alto filed a demurrer to the second amended complaint that is the subject of this appeal. This second demurrer asserted grounds identical to those of the original demurrer, i.e., that the second amended complaint failed to allege facts sufficient to state a cause of action, was uncertain, and was time-barred by the one-year statute of limitations. (§ 340.5.)

The court sustained Welle’s and Palo Alto’s demurrer to the second amended complaint without leave to amend and entered judgment in favor of Welle and Palo Alto on February 1, 2017. Turner filed a timely notice of appeal on April 13, 2017.

2. DISCUSSION

1. Standard of Review

The standard of review governing an appeal from the judgment after the trial court sustains a demurrer without leave to amend is well established. “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)

2. ADA

Turner’s first cause of action in the second amended complaint is for violation of Title III of the ADA. This title states a general rule of nondiscrimination in public accommodations: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182 (a).) An individual is disabled for the purposes of the ADA if the person has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; [has] a record of such an impairment; or [is] regarded as having such an impairment.” (42 U.S.C. § 12102 (1)(A)-(C).)

To state a claim for violation of Title III of the ADA, a plaintiff must allege that he or she was discriminated against based on his disability in the use or enjoyment of the services of a public accommodation. Here, Turner’s allegations of his disability in the first cause of action are vague. He alleges: “Plaintiff disability is a learning disability dyslexia as child, encephalopathy resulting in cognitive impairment as proximate result of chemical sprays. Plaintiff has dual disability physical ending September 2016 and mental disability limit the tolling statue [sic] of limitations, which county body politic has immunities by state codified law and thus malpractice.” Turner further alleges: “Defendant Thomas J. Welle D.O. medical plan would have resulted in plaintiff disability, substantial disability inability in activity and working.”

Turner fails to state how his disability “substantially limits one or more major life activities.” (42 U.S.C. § 12102 (1)(A)-(C).) In addition, Turner does not allege how Welle’s or Palo Alto’s actions limited his ability to enjoy the services or use of a public accommodation as required under Title III of the ADA. The trial court properly sustained Welle’s and Palo Alto’s demurrer based on Turner’s failure to state a claim for violation of the ADA.

3. Medical Malpractice

Turner’s second cause of action in his second amended complaint is for medical malpractice. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

The allegations against Welle stem from medical treatment of Turner’s self-described “rotor cuff tear.” In the second amended complaint, Turner alleges that in April, May and June of 2015, he consulted with Welle for treatment of his shoulder condition, “[i]ncluding, but not limited to full thickness rotor cuff tear surgical repair of the supraspinatus and bicep long head tendon surgery reconnection to bone . . . .” Turner further alleges that Welle “carelessly and negligently . . . cared and treated [him] . . . . Including but not limited to improper surgical repair of full thickness rotor cuff tear of the ruptured supraspinatus tendon . . . .” The second amended complaint contains many other vague and confusing allegations about his condition and medical treatment.

Turner fails to allege the necessary elements to state a cause of action against Welle for medical malpractice. He does not allege specific facts to define the professional standard of care, and does not allege specific facts of how Welle breached that standard. In addition, Turner fails to allege specific facts of how Welle’s actions are causally connected to any harm that he suffered. Turner alleges no facts regarding Palo Alto’s actions in relation to his health condition and treatment. The trial court properly sustained Welle’s and Palo Alto’s demurrer based on Tuner’s failure to state a cause of action for medical malpractice.

4. Statute of Limitations

The statute of limitations for claims of medical malpractice is “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 any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” (§ 340.5.)

In Turner’s original complaint, he alleged that Welle “refused to reattach the biceps tendon, part of the surgical operation procedure in reconnecting the ruptured supraspinous tendon.” He further alleged that “defendants’ [sic] delayed the surgery from December, 2014 to Nor Cal Ortho Inc., surgeon successful operation, [sic] . . . . defendant malpractice was refusing to reconnecting the biceps during surgery.” The original complaint indicates that the alleged negligent conduct occurred in December 2014 and the complaint was filed on January 15, 2016, more than one year later. Turner’s allegations in the original complaint demonstrate that he was aware of the negligence when it occurred in December 2014, causing the one-year statute of limitations to run from that time. Therefore, the action as alleged in the original complaint is barred by the statute of limitations. (§ 340.5.)

In an attempt to cure the statute of limitations defect in the original complaint, Turner further asserted in the second amended complaint that he consulted with Welle in April, May and July of 2015 for the treatment of his “rotor cuff tear surgical repair of the supraspinatus and bicep long head tendon surgery reconnection to bone . . . .” Turner further alleged: “At all times mentioned herein, plaintiff did not know, and did not reasonably have grounds upon which to know, that the medical care described herein above was negligent and otherwise careless and improper, and that said care proximately caused said injuries ‘atrophy of tendon and muscles,’. . . until August 19, 2015 where Ortho Nor Cal surgeon agreed on operation on [p]laintiff successfully.”

The original complaint alleged that the negligence occurred in December 2014, and the second amended complaint alleges that Turner did not know that the medical care he had received was negligent and that it had caused his injury until August 19, 2015. “In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 809.) The second amended complaint does not contain any explanation for the delay between the negligent conduct that occurred in 2014 and Turner’s alleged discovery of it in 2015. Turner does not state that he investigated the circumstances of his injury, nor does he assert that he could not have reasonably discovered the negligent conduct prior to the expiration of the one-year statute of limitations in December 2015.

Turner’s second amended complaint does not cure the statute of limitations defect in the original complaint. Therefore, the action is barred by the one-year statute of limitations. (§ 340.5.)

5. Uncertainty

Section 430.10 establishes that a pleading that is uncertain is subject to demurrer, defining “uncertain” to include “ambiguous and unintelligible.” (§ 430.10, subd. (f).) A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “Essentially the problem is one of fairness in pleading so as to give the defendant such notice by the complaint that he may prepare his case. [Citation.]” (Wise v. Southern Pacific Company (1963) 223 Cal.App.2d 50, 63.)

Turner’s allegations in the second amended complaint are largely unintelligible. While Turner states that he consulted Welle for medical treatment of his shoulder condition, he does not allege any clear facts describing what Welle actually did to cause him harm, or how Welle discriminated against Turner based on a disability. Moreover, Turner does not state any clear facts as to Palo Alto’s actions or inactions affecting his treatment. Based on the uncertainty of the second amended complaint, it is not possible for Welle or Palo Alto to reasonably respond to it. The trial court properly sustained Welle’s and Palo Alto’s demurrer based on uncertainty.

6. Leave to Amend

The court sustained Welle’s and Palo Alto’s demurrer to the second amended complaint without leave to amend. Prior to this order, the court gave Turner the opportunity to amend his complaint, and he failed to cure the identified deficiencies. Turner did not meet his burden of proving that there is a reasonable possibility that the defects in the second amended complaint can be cured by amendment. (See, Blank, supra, 39 Cal.3d at p. 318.) We find that the trial court did not abuse its discretion in sustaining the demurrer without leave to amend.

3. DISPOSITION

The judgment is affirmed.