Filed 2/22/18 Page v. Mission Hospital CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

MARJORIE PAGE,

Plaintiff and Appellant,

v.

MISSION HOSPITAL,

Defendant and Respondent.

G054142

(Super. Ct. No. 30-2015-00789538)

ORDER MODIFYING OPINION AND
DENYING REHEARING; NO
CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on February 1, 2018, be modified as follows:
On page 8, delete the first full paragraph, beginning “At oral argument,” and replace it with the following:
At oral argument on appeal, Page suggested that she could amend her complaint to allege that her husband Gregory Page concealed from her facts regarding her injury. This argument fails for at least two reasons. First, “concealment is an exception to the three-year, not one-year, limitations period in section 340.5.” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824.) As explained ante, this case is governed by the one-year limitations period. Second, concealment by Page’s husband does not implicate Mission Hospital in wrongdoing. Relevant to the second point, Page filed a petition for rehearing of our opinion, to which she attached declarations from her husband stating: “The communication of Plaintiff’s mental health was decided in concealment from her in a private room between the physician and spouse. The treatment and actual order of a takedown was between the physician and registered nurse in a location unknown to the spouse and the plaintiff.” Even if these facts were pled in an amended complaint, they do not address the issue of when Page discovered or could reasonably have discovered her injury, and thus could not extend the statute of limitations. Therefore, even if Page had made these allegations, there would have been no error in the order sustaining the demurrer without leave to amend.

The petition for rehearing is DENIED.



FYBEL, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.


Filed 2/1/18 Page v. Mission Hospital CA4/3 (unmodified opinión)





NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

FOURTH APPELLATE DISTRICT

DIVISION THREE


MARJORIE PAGE,

Plaintiff and Appellant,

v.

MISSION HOSPITAL,

Defendant and Respondent.


G054142

(Super. Ct. No. 30-2015-00789538)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James Di Cesare, Judge. Affirmed. Request for Judicial Notice. Granted in part and denied in part.
Marjorie Page, in pro. per., for Plaintiff and Appellant.
Brobeck, West, Borges, Rosa & Douville, John E. West, Dina L. Taulli and Curtis C. Holmes II for Defendant and Respondent.
* * *
INTRODUCTION
Marjorie Page sued Mission Hospital for battery and intentional infliction of emotional distress. Page was injured when Mission Hospital employees subdued her and shackled her to a gurney when a physician determined Page needed a psychiatric evaluation and treatment. The trial court sustained a demurrer to Page’s second amended complaint without leave to amend. We affirm.
Page’s complaint was subject to the statute of limitations of Code of Civil Procedure section 340.5, which requires that an action arising out of an injury caused by the professional negligence of a healthcare provider be filed within three years of the date of the injury, or one year from the date the plaintiff discovers or reasonably could have discovered the injury, whichever comes first. In this case, the one-year-from-discovery date occurred before the three-year-from-injury date, so that is the applicable statute of limitations. Page discovered the cause of her injury more than one year before filing her lawsuit, meaning the limitations period had run before the complaint was filed; the trial court properly sustained the demurrer.
Page fails to show it is reasonably possible that she could amend her complaint to avoid the statute of limitations’ bar. Therefore, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY
Page appeared at the emergency room of Mission Hospital on September 21, 2011, seeking pain medication for relief of insomnia and arthritis. The attending physician refused to prescribe pain medication for Page, at which time Page decided to leave. The attending physician, however, determined Page needed to be placed on a Welfare and Institutions Code section 5150 hold (a 5150 hold), and instructed Mission Hospital employees to prevent Page from leaving. Those employees performed what Page describes as a “takedown procedure,” and shackled her to a hospital gurney. After Page was released from Mission Hospital on September 24, she began suffering pain in her neck, wrists, and ankles.
About three and a half years later, on May 27, 2015, Page filed a complaint against Mission Hospital and the attending physician for battery, emotional distress, negligence, and false imprisonment. Mission Hospital’s demurrer to that complaint was sustained with 25 days’ leave to amend on the ground that all of Page’s causes of action were barred by the applicable statute of limitations. Page filed a first amended complaint from which she removed the cause of action for false imprisonment, and to which she added allegations explaining why the statute of limitations should be tolled on all of her remaining causes of action. The trial court again sustained Mission Hospital’s demurrer to the amended complaint because it was barred by the statute of limitations. The court granted Page a final 30 days’ leave to amend.
Page’s second amended complaint alleged only causes of action for battery and intentional infliction of emotional distress. Based on the statute of limitations, the trial court sustained Mission Hospital’s demurrer to the second amended complaint, this time without leave to amend. Judgment in favor of Mission Hospital, and against Page, was entered on August 4, 2016.
After entry of the judgment, Page filed a motion for reconsideration, which the trial court denied on the ground it lacked jurisdiction to consider the motion after entry of judgment. The court noted in its minute order that even if it were to consider the motion for reconsideration on its merits, it would deny the motion.
Page filed a notice of appeal from the judgment.

DISCUSSION
I.
STANDARD OF REVIEW
We independently review the ruling on a demurrer and determine de novo whether the pleading alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We assume the truth of the properly pleaded factual allegations, attachments to the complaint, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice can and has been taken. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We construe the pleading in a reasonable manner and read the allegations in context. (Ibid.) “We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court’s stated reasons. [Citation.]” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 848.)
When a demurrer 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.)

II.
PAGE’S CAUSES OF ACTION WERE BARRED, ON THEIR FACE,
BY THE APPLICABLE STATUTE OF LIMITATIONS.
An action for personal injury “caused by the wrongful act or neglect of another” is generally subject to a two-year statute of limitations. (§ 335.1.) A one-year/three-year statute of limitations applies, however, when the injury is caused by the professional negligence of a health care provider: “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 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. . . . [¶] For the purposes of this section: [¶] . . . [¶] (2) ‘Professional negligence’ means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (§ 340.5.)
The statute of limitations of section 340.5 applies in this case because the alleged negligence and/or battery by the Mission Hospital employees was based on the rendering of professional services—the placement of Page under a 5150 hold by the attending emergency room physician. (See Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 89 [negligence in the maintenance or use of a bedrail was integrally related to the plaintiff’s medical diagnosis and treatment when the treating physician ordered that the bedrail be raised]; Nava v. Saddleback Memorial Medical Center (2016) 4 Cal.App.5th 285, 292 [negligence in the use or maintenance of the gurney from which the plaintiff fell was integrally related to his medical diagnosis or treatment because transfer necessitating use of the gurney was subject to a medical professional’s directive].)
Page alleges she was admitted to Mission Hospital’s emergency department to obtain medical care and treatment. She further alleges she was prevented from leaving the emergency department and was placed on a 5150 hold. Both causes of action in the second amended complaint arise directly out of the attending physician’s order to Mission Hospital employees to restrain Page and prevent her from exiting the hospital, and from Page’s claim that she received medical care and treatment while in the hospital without her consent. As we will explain, Page’s complaint was not timely filed.
As to the discovery of the injury, Page’s second amended complaint alleges that on “May 1, 2013 [she was] made aware that the pain to her neck was caused by cervical C5-C6 and C6-C7 disk damage and the significance that it was likely attributed to the forceful takedown.” Therefore, no later than May 1, 2013, Page discovered her injury, and the one-year statute of limitations began to run. Page’s complaint was not filed until May 27, 2015, more than two years later, after the expiration of that limitations period.
Thus, the one-year-from-discovery statute of limitations expired on May 1, 2014. In addition, the three-year-from-injury statute of limitations would have expired September 21, 2014. Because section 340.5 requires us to apply “whichever [limitations period] occurs first,” we need not address Page’s arguments that the three-year statute of limitations applied and should have been tolled due to Mission Hospital’s fraud.

III.
PAGE DID NOT SHOW A REASONABLE POSSIBILITY THAT THE DEFECTS IN HER COMPLAINT COULD BE CURED BY FURTHER AMENDMENT.
Page argues that she should have been given one final opportunity to amend her complaint, although she fails to provide any specific facts she could allege that would remove this case from the one-year-from-discovery statute of limitations of section 340.5.
Page contends discovery had not ended and she was in the process of obtaining witnesses. Because a demurrer tests the allegations of the complaint, the status of discovery was not relevant to the trial court’s analysis.
Page also contends, citing section 430.41, that she had an absolute right to amend her complaint one more time. “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.” (§ 430.41, subd. (e)(1).) A prohibition on more than three amendments without an offer of additional facts does not equate to a guarantee of the right to amend a complaint three times.
Page specifically argues that she could have amended her complaint to allege delayed discovery of her injuries. But Page fails to set forth any facts that are not already in the second amended complaint that would extend the statute of limitations. To the contrary, her appellate briefs argue the date of discovery is the date we have used, ante. In particular, Page argues in her reply brief on appeal: “Second, Defendant aggressively argued that Plaintiff knew the extent of her injuries upon leaving Mission Hospital on September 24, 2011, when actually the extent of the injury damages was not known by Plaintiff until Dr. Eli Baron, neurosurgeon, explained and recommended surgery on 5/1/2013. Thus, Plaintiff sets 5/1/2013 as the Discovery Date.”
At oral argument on appeal, Page suggested that she could amend her complaint to allege that her husband Gregory Page concealed from her facts regarding her injury. This argument fails for at least two reasons. First, “concealment is an exception to the three-year, not one-year, limitations period in section 340.5.” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824.) As explained ante, this case is governed by the one-year limitations period. Second, concealment by Page’s husband does not implicate Mission Hospital in wrongdoing.

IV.
THE ALLEGED EXISTENCE OF EXPERT EVIDENCE SUPPORTING PAGE’S CLAIMS OF INJURY DOES NOT AFFECT THE TRIAL COURT’S RULING THAT THE STATUTE OF LIMITATIONS BARRED PAGE’S CAUSES OF ACTION.
Page attached to her appellate brief a statement by a specialist in martial arts, opining as to how Page might have suffered an injury at Mission Hospital on September 21, 2011. We have no need to address the admissibility or weight of this “evidence” because it has no impact on the sole issue before us on appeal—whether Page’s causes of action are barred by the applicable statute of limitations.

V.
THE TRIAL COURT DID NOT ERR IN AWARDING COSTS TO MISSION HOSPITAL.
Page argues that, in the interests of justice, the trial court should not have awarded Mission Hospital its costs as the prevailing party.
Mission Hospital was unquestionably the prevailing party in the litigation, having obtained dismissal of all of Page’s claims (§ 1032, subd. (a)(4)), and therefore was “entitled as a matter of right to recover costs” (id., subd. (b)). The costs requested in Mission Hospital’s memorandum of costs were all authorized by statute. (§ 1033.5, subd. (a).)

VI.
REQUEST FOR JUDICIAL NOTICE
Page submitted a request for judicial notice of the following exhibits:
1. Minute Order, filed on June 9, 2016, Page v. Mission Hospital, case No. 30-2015-00789538.
2. Supplemental Brief, filed on May 13, 2016, Page v. Mission Hospital, case No. 30-2015-00789538.
3. Reply to Defendant’s Opposition to Supplemental Brief, filed on May 24, 2016, Page v. Mission Hospital, case No. 30-2015-00789538.
4. Quotation from Ashcraft v. King (1991) 228 Cal.App.3d 604.
5. Quotation from Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962.
6. Quotation from Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797.
7. Quotation from McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88.
8. Quotation from Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674.
9. Civil Code section 1710.
Exhibit Nos. 1, 2, and 3 are records of a court of this state and are proper matters for judicial notice. (Evid. Code, §§ 452, subd. (d)(1), 459.) We will take judicial notice of these documents, although we do not take judicial notice of the truth of their contents. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194.)
Exhibit Nos. 4, 5, 6, 7, and 8 are quotations from various California cases. While we must take judicial notice of the decisional authority of this state (Evid. Code, §§ 451, subd. (a), 459), we will not take judicial notice of single selected quotations from those authorities. We have given due consideration to all of the legal authority properly cited and relied on by Page.
Exhibit No. 9 is statutory authority of this state, of which we must take judicial notice. (Evid. Code, §§ 451, subd. (a), 459.)
None of the statutory and decisional authority listed in the request for judicial notice was cited in Page’s opening appellate brief, and only one (the Fox case) was cited in Page’s reply brief. We believe that the request for judicial notice may be an attempt to submit impermissible supplemental briefing to this court. Before the request for judicial notice was filed, Page requested leave to file a supplemental brief; this court denied her request.




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



FYBEL, ACTING P.J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.