Valenzuela v. Cher

Filed 7/13/06 Valenzuela v. Cher CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Richard P. Niedorf, Judge. Affirmed.

Law Offices of James H. Carlin, Law Offices of Chan & Strutynski, and James H. Carlin, for Plaintiff and Appellant.

Gittler & Bradford and Bruce N. Miller for Defendant and Respondent.

_____________________

Josephine Valenzuela appeals from the judgment entered against her on her complaint against Dr. John Cher, after Dr. Cher's statute of limitations demurrer was sustained.

Facts[1]

The first amended complaint brought causes of action for professional negligence and negligent infliction of emotional distress. It alleged that on September 4, 2000, Dr. Cher performed a tummy tuck surgery on appellant. In October, she noticed an infection at the surgical site. Dr. Cher performed a corrective surgery on December 12, 2002. In February, due to continuing problems, appellant consulted a Dr. Johnson. On February 28, 2002, Dr. Johnson performed a third surgery, to correct problems arising from the first surgery. On March 14, 2003, during a follow-up appointment, Dr. Johnson "first voiced the opinion that led Plaintiff Valenzuela later to develop a suspicion that Dr. Cher's surgery and treatment of her was below the standard of care." On September 4, 2003,[2] appellant sent Dr. Cher a Notice of Intent to Sue pursuant to Code of Civil Procedure^[3] section 364. She sent additional notices on October 14, 2003 and February 18, 2004. Also on February 18, 2004, she sent a notice to the Medical Board of California, under former section 364.1. Appellant filed her complaint on June 1, 2004.

Respondent demurred, contending that appellant's claim was barred by the statute of limitations because it was filed more than one year after she discovered, or should have discovered, her injury. (§ 340.5.) The trial court sustained the demurrer and dismissed the case. The order of dismissal was on January 18, 2005 and notice of entry of dismissal was on January 20, 2005. On February 3, 2005, appellant moved for a new trial. The trial court denied the motion.

Discussion

Section 340.5 provides that the time for commencement of an action such as this one, "against a health care provider based upon such person's alleged professional negligence," 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 comes first."

Appellant argues that her injury was caused by use of the wrong sutures and was a hidden defect, so that accrual of the cause of action was postponed until she had suffered additional damages. We agree with respondent that the statute of limitations began to run no later than March 14, 2003.

In appellant's first amended complaint she stated "[o]n or about 3-14-03 Plaintiff Valenzuela had a follow-up with Dr. Johnson. At that time Dr. Johnson first voiced the opinion that led Plaintiff Valenzuela later to develop a suspicion that Dr. Cher's surgery and treatment of her was below the standard of care." This statement is subject to an inference that the date by which appellant discovered the injury, or should have, was later than March 14, 2003. However, in appellant's opposition to respondent's demurrer, she stated "[i]n the case at hand, as pleaded, discovery occurred March 14, 2003 . . . ."

"The courts . . . will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. [Citations.] [¶] Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Appellant discovered her injury on March 14, 2003, and had until March 14, 2004 to file her complaint. The complaint was not filed until June, and was untimely.

We now turn to the crux of appellant's argument, that her notice of intent to sue, sent on February 18, 2004 to both respondent, pursuant to section 364, and to the California Medical Board, under section 364.1, tolled the one year statute of limitations for at least 90 days.

We begin with appellant's February 18 notice to respondent, and find no tolling. Under section 364, "[n]o action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action," and "[i]f the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice." (§ 364, subds. (a) and (d).)

However, the relevant notice is the first notice. Subsequent notices within 90 days of the expiration of the statute of limitations do not toll or extend the statute. (Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 387.) "[A] second 90-day notice of the intent to bring suit does not toll the 1-year limitations period." (Ibid) Appellant sent her first notice to respondent on September 4, 2003. It was not sent "within 90 days of the expiration of the applicable statute of limitations," and thus has no effect on that statute. Under section 364, subdivision (d), "the 1-year statute of limitations is tolled for 90 days when the plaintiff gives the notice of intent to sue in the last 90 days of the limitations period, but . . . the running of the statutory period is not otherwise affected by service of the notice." (Woods v. Young (1991) 53 Cal.3d 315, 319.)

As to appellant's notice to the Medical Board, the relevant statute is not section 364, but former section 364.1, which provided, in full, that:

"No action based upon the professional negligence of a physician or surgeon or doctor of podiatric medicine may be commenced unless the 90-day prior notice required by Section 364 is also sent to the Medical Board of California or the Board of Podiatric Medicine, as applicable, at the same time it is sent to the defendant. The Medical Board of California or the Board of Podiatric Medicine shall maintain the notice as a confidential part of a potential investigation file."

Unlike section 364, this statute does not include a tolling period, and to the extent that appellant argues that one should be implied, we disagree. Section 364.1 does not have an independent tolling provision which parallels that found in section 364(d). Section 364.1 does reference section 364, but it does not import that statute's tolling provision.

If the Legislature meant to include a tolling provision in section 364.1, it would have included one, or made it clear that section 364, subdivisions (d)'s tolling provision was imported. The Legislature did neither. We will not read a provision into a statute which the Legislature did not place there. (See People v. Harper (2003) 109 Cal.App.4th 520, 524 (quoting Western/California Ltd. v. Dry Creek Joint Elementary School Dist. (1996) 50 Cal.App.4th 1461, 1488); Warmington Old Town Associates v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 857.)

Appellant's next argument is based on the contention that section 356 applies to section 364.1. Section 356 provides that "[w]hen the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action." She contends that under section 356, she was allowed 90 days of tolling, and up to 180 days of the notice, to commence her action. She further contends that Woods v. Young, supra, 53 Cal.3d 315, which found that section 356 did not apply to section 364, has no effect on section 364.1 and is in any event wrongly decided.[4]

Prior to Woods, supra, several cases had held, variously, that section 356 extended the section 364 tolling period by 90 to 180 days, or by 90 days only. (Woods v. Young, supra, 53 Cal.3d at p. 320.) Woods found that "[t]he anomalies created by applying the tolling provision of section 356 to section 364 suggest that when the Legislature enacted MICRA it did not intend section 356, a non-MICRA provision, to apply to section 364." (Id. at p. 324.) The Court also found that its conclusion was supported by the rule that a later, more specific statute controls over an earlier, general statute, and by the presence of section 365 in the MICRA statutory scheme. That statute provides that "[f]ailure to comply with this chapter shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein. However, failure to comply with such provisions by any attorney at law shall be grounds for professional discipline and the State Bar of California shall investigate and take appropriate action in any such cases brought to its attention."

Appellant is correct that Woods did not consider section 364.1, which had not been enacted when Woods was decided. Further, given the absence of a tolling period in section 364.1, the anomalies created by application of section 356 to section 364 would not be created if section 356 was applied to section 364.1. We nonetheless agree with respondent that section 356 did not provide appellant with any additional time.

Section 364.1 provides that notice must be sent to the Medical Board at the same time it is sent to the doctor. Thus, a plaintiff in compliance with section 364.1 will have the benefit of any tolling he or she is entitled to under section 364. Given that Legislative scheme, we cannot find that a plaintiff, such as appellant here, who does not comply with section 364.1, and who does not notify the Medical Board until well after the doctor receives notice, is nonetheless entitled to a tolling of the statute of limitations.

Plaintiff may not create a tolling period by the expedient of sending a second notice to the doctor at the time notice is sent to the Medical Board. Any other holding would defeat the Legislative scheme. Application of section 356 to a late-filed section 364.1 notice would create a tolling period analogous to that found in section 364, subdivision (d), even though the express Legislative intent is to the contrary: section 364.1 includes a tolling provision because the Legislature intended a tolling for notice to the doctor. The absence of a similar provision in section 364.1 means that the Legislature did not intend a separate tolling for notice to the Medical Board.

Finally, appellant argues that the trial court abused its discretion by refusing to hear her motion for a new trial. Appellant's grounds for the motion were the following: (1) insufficiency of the evidence to justify the verdict, the verdict is against law; (2) error in law, occurring at the proceeding and excepted to by plaintiffs. The trial court denied the motion as untimely and improper, based on a belief that a motion for a new trial could not follow a demurrer.

As appellant asserts, a ruling on demurrer may be challenged by a motion for new trial. (See Green v. Del-Camp Inv., Inc. (1961) 193 Cal.App.2d 479, 481; Carney v. Simmonds (1957) 49 Cal.2d 84, 88. Further, the motion was timely, as it was filed within fifteen days of the Notice of Entry of Dismissal, pursuant to section 659. However, any error was harmless. The motion for a new trial simply repeated appellant's previous arguments asserted in opposition to the demurrer which, we note, are the same arguments she makes before this court. (See Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1387.) The trial court would have reached the same conclusion if it had heard the merits of the claim. It is the conclusion we reach: the complaint was barred by the statute of limitations.

In her reply brief, appellant also makes an argument under section 473, contending that the "good cause" exception can be applied to section 364.1. We do not consider arguments raised for the first time in a reply brief. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1] "When reviewing a judgment dismissing a complaint after a demurrer is sustained without leave to amend, courts must assume the truth of the complaint's properly pleaded or implied factual allegations." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

[2] That date is found in appellant's opposition to respondent's demurrer. Respondent's request that we take judicial notice of the document is granted.

[3] All further statutory references are to that Code.

[4] This last contention we do not consider. Woods is a decision of our Supreme Court, and is binding on us. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 454.)