Peterson v. Dein

Filed 10/25/06 Peterson v. Dein 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Sacramento)

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Plaintiff Arthur D. Peterson appeals from a judgment of dismissal entered after the trial court sustained without leave to amend a demurrer to his complaint for medical malpractice against defendant Dr. John R. Dein. The demurrer was sustained on the basis of the statute of limitations. (Code Civ. Proc., § 340.5.) Plaintiff, who has proceeded throughout the litigation in propria persona and acknowledges that he is “not strong on Points and Authorities,[ ]Statutes or Codes of Civil Procedure,” contends the court erred in ruling that the action is barred by the statute of limitations.

We have reviewed the appellate record and conclude that the demurrer was properly sustained. Therefore, we must affirm the judgment of dismissal. When, as here, “a complaint shows on its face that an action is barred by the statute of limitations, the use of the demurrer to dispose of that action without additional trial court, attorney, or litigant time and effort is an efficient, appropriate, and well-accepted procedure. [Citation.] Plaintiff’s status as a party appearing in propria persona does not provide any basis for attacking the demurrer procedure; such a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)

BACKGROUND

Since we are called upon to review the sufficiency of a complaint against a demurrer, we accept the material facts that are properly pleaded in the complaint and also consider matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We do not accept any allegations that are conclusory, ineffectual, or improperly pleaded. (Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 121.) And, other than matters that may be judicially noticed, we do not consider any factual claims that are not set forth in the complaint. (Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862.)

In this light, plaintiff’s complaint makes the following allegations:

In early 2002, Dr. Pasquale Montesano, a spinal surgeon, advised plaintiff, who was in his mid-70’s, that he needed an operation to fuse lumber vertebrae. Because plaintiff had a history of cardiac problems, Montesano said that before the operation, plaintiff would have to obtain clearance from his cardiologist, Dr. Nick Majetich.

Dr. Majetich discovered significant vein and artery blockage. In March 2002, Majetich attempted a drill-out heart catherization. The operation was unsuccessful, and plaintiff suffered a mild stroke. Majetich referred plaintiff to defendant, Dr. Dein, a thoracic surgeon.

On April 8, 2002, defendant performed what plaintiff describes as a five-way bypass operation. The operation was successful with respect to plaintiff’s cardiac issues, but left him with serious damage to his right arm, hand, and fingers. Plaintiff asserts that he suffers from constant pain from spasms, lack of grip, numbness, and an inability to do the things he would like to accomplish. On a follow-up to the operation, plaintiff saw physician assistant R. Bonacci on May 7, 2002, and was told the problem would clear up in six to eight months.

In July 2002, plaintiff suffered a severe stroke and was hospitalized for four days. He recovered.

In August 2002, Dr. Montesano performed the vertebrae fusion operation. The operation was successful, and plaintiff asserts it was unrelated to his arm, hand, and finger problems.

From September 2002 to February 2003, plaintiff saw a number of medical care providers with respect to his arm, hand, and finger problem. Dr. Floyd David, a family practitioner, referred plaintiff to Dr. Asish Goshal, a neurologist. Goshal recommended an ulnar nerve transposition operation to alleviate the pain from the heart operation done by defendant. Plaintiff attempted to get a second opinion from Dr. John A. Schafer, a neurologist who had previously treated plaintiff. Schafer referred plaintiff to Dr. John Agee, a surgeon-neurologist. Plaintiff saw Agee in early January 2003, but the visit was unproductive because Agee said that he could do nothing helpful to alleviate the problem.

In the meantime, plaintiff contacted defendant to ask what could be done to address plaintiff’s problem. Defendant “seemed to feel that everything was ‘FINE’” and “that he needed more room to work within [plaintiff’s] chest cavity--therefore the chest had to be opened wider--thereby causing damage to [plaintiff’s] ULNAR, [ ]MEDIAL AND RADIAL NERVES IN [PLAINTIFF’S] RIGHT BRACHIAL PLEXUS COMPLEX. These nerves were either bruised, stretched or impinged . . . .”

Dr. Schafer, with a possible assist from defendant, arranged for Dr. Robert M. Szabo to do an ulnar nerve transposition, which was performed on April 1, 2003. During the operation, Szabo was assisted by Dr. Robert H. Allen and another physician, possibly Dr. Johnson. The only effect of the operation was “to make a few Doctors and their assistants wealthier and cause [plaintiff] more pain and suffering.”

Plaintiff asserts: “On April 8, 2002, when I entered Mercy San Juan Hospital for this operation by Dr. Dein and his Group; MY RIGHT ARM, HAND AND ALL FINGERS ON MY HAND WERE STRONG, PAIN-FREE AND FULLY OPERATIONAL, but two days later while trying to recover from my overall pain and numb feelings from anesthesia, I told my wife that my right arm, hand and fingers were painful, yet somewhat numb and I had no strength. It has been all downhill ever since.”

Plaintiff filed his medical malpractice complaint on April 8, 2005, three years after the operation performed by defendant. In addition to the care providers previously mentioned, plaintiff identified as “Associate Doctors” Allen S. Morris, Frank N. Slachman, Steven J. Rossiter, Peter S. Carruth, as well as physician assistant Scott Harper. However, plaintiff did not name any of these persons as a defendant and did not explain what interaction that they may have had with plaintiff.

Defendant demurred on the basis of the statute of limitations. (Code Civ. Proc., § 340.5.) The trial court sustained the demurrer without leave to amend and later entered a judgment of dismissal.

DISCUSSION

I

Code of Civil Procedure section 340.5 states in pertinent 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 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.”

Under the statute, the one-year period for commencing an action begins to run when the plaintiff has information that would put a reasonable person on inquiry--in other words, when reasonably founded suspicions have been aroused. (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823; see also Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-897.) The plaintiff need not be aware of the specific facts necessary to establish the claim. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.) “So long as a suspicion exists, it is clear that the plaintiff must go find the facts; [he] cannot wait for the facts to find [him].” (Ibid.) Ignorance of the legal remedy or the legal theories underlying the cause of action is irrelevant. (Gutierrez v. Mofid, supra, 39 Cal.3d at p. 898.)

It is readily apparent from the allegations in plaintiff’s complaint that within days of the operation on April 8, 2002, plaintiff was fully aware of his injury and has continuously attributed the injury to defendant’s performance of the operation. Therefore, this action, commenced three years later, is barred by the one-year limitation period of Code of Civil Procedure section 340.5.

Plaintiff appears to believe that the one-year period and the three-year period stated in the statute are alternative periods for commencing an action. Thus, plaintiff asserts that if he alleges fraud or intentional concealment, he can disregard the one-year limitation and is subject solely to the three-year period.

This is an incorrect view of the statute. By its plain language, the statute requires that an action for medical negligence must be commenced within one year after the plaintiff discovers or, through the use of reasonable diligence should have discovered, the injury and within three years of the injury. (Gutierrez v. Mofid, supra, 39 Cal.3d at p. 896.) The three-year period may be tolled upon proof of fraud or intentional concealment, but the one-year period is not tolled. (Ibid.; see also Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 100-101; Graham v. Hansen (1982) 128 Cal.App.3d 965, 974.)

Moreover, the tolling rule applicable to the three-year period, by its very nature, could have no effect on the one-year period. While it is well established that fraud or intentional concealment of the facts by a defendant will toll the statute of limitations, it is equally well established that conduct of the defendant does not excuse a lack of diligence on the part of the plaintiff. Thus, once a plaintiff has notice of a potential claim, i.e., the plaintiff is aware of facts sufficient to give rise to a reasonable suspicion of wrongdoing, then the fraudulent concealment rule has no further application regardless of the lengths to which the defendant has gone to conceal the wrongs. (Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 890-891; Barber v. Superior Court (1991) 234 Cal.App.3d 1076, 1083.) Accordingly, the circumstances that will start the running of the one-year limitation period of Code of Civil Procedure section 340.5 will simultaneously terminate any ability of the plaintiff to rely upon fraud or intentional concealment to toll the limitations period.

In any event, plaintiff has not sufficiently alleged fraud or intentional concealment by defendant.

After setting forth the chronology of events up to the ulnar nerve transposition by Dr. Szabo on April 1, 2003, plaintiff states: “Is this timing a coincidence or just excellent planning by a group of professionals attempting to protect each other[‘]s reputation and bank accounts??? I firmly believe there has been fraudulent and intentional concealment of the dire results of my injuries from Dr. Dein’s bypass operation to include any and all of the Doctors, Physician Assistants and any Nurses and John or Jane Does listed and/or unknowns on the opening page.”

To invoke fraud or intentional concealment to toll the statute of limitations, plaintiff must point to conduct by the defendant rather than third persons. (Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 898-900; Barber v. Superior Court, supra, 234 Cal.App.3d at pp. 1083-1084.) Plaintiff alleges he contacted defendant sometime between September 2002 and the ulnar nerve transposition on April 1, 2003, and that defendant said “he needed more room to work within [plaintiff’s] chest cavity--therefore the chest had to be opened wider--thereby causing damage to [plaintiff’s] ULNAR,[ ]MEDIAL AND RADIAL NERVES IN [PLAINTIFF’S] RIGHT BRACHIAL PLEXUS COMPLEX. These nerves were either bruised, stretched or impinged . . . .” This information provided to plaintiff by defendant more than two years before the action was commenced was sufficient to start the running of the one-year limitation period.

Plaintiff believes the statute of limitations did not begin to run until June 17, 2004, because until that time he was seeking a cure for his injury. However, the statute of limitations began when plaintiff suffered appreciable and actual harm, and it was not tolled while he sought treatment for the injury. (Davies v. Krasna (1975) 14 Cal.3d 502, 514; Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at pp. 102-103.)

Since the allegations of the complaint unequivocally establish that the action is time-barred, the trial court properly sustained the demurrer. (Barton v. New United Motor Manufacturing, Inc., supra, 43 Cal.App.4th at p. 1210.) And because the facts in the complaint demonstrate that, as a matter of law, the action is barred by the statute of limitations, the court properly denied leave to amend the complaint. (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1030-1031.)

II

Plaintiff makes a number of assertions to the effect that he was treated unfairly in the trial court.

Plaintiff repeatedly claims opposing counsel were dishonest and lied about matters. But he makes only two record references in support of this claim.

First, he refers to a declaration of counsel, submitted with the demurrer, in which counsel declared: “On May 6, 2005, my office had a telephone conversation with Plaintiff . . . in an informal attempt to resolve this matter. No resolution was achieved.” Plaintiff calls this “big fat LIES.” He asserts the conversation covered only the demurrer, and there was no discussion of resolving the case.

Plaintiff misinterprets the declaration. Counsel did not claim to have tried to settle the case on the merits. Reasonably interpreted, all counsel declared was that plaintiff was informed of the demurrer and was given the opportunity to avoid further proceedings by dismissing the case. We perceive nothing dishonest in the declaration.

Second, plaintiff points to the defense reply to plaintiff’s opposition to the demurrer, wherein counsel noted the complaint alleges defendant told plaintiff there was damage to plaintiff’s ulnar, medial, and radial nerves in the right brachial plexus complex by bruising, stretching, or impinging the nerves. That assertion was taken directly from the allegations of plaintiff’s complaint. There was nothing dishonest in counsel’s act of noting the factual allegations of the complaint in support of the demurrer.

Plaintiff makes numerous unsupported assertions about the trial judge. He claims the judge must have had ex parte communications with defendant, and he accuses the judge of being friendly to the defense lawyers, of being dishonest, and of engaging in a cover-up. Plaintiff also repeatedly refers to Proposition 22, asserting it had an effect on the outcome of this case.

Plaintiff provides no support whatsoever for his attacks on the judge’s integrity. And plaintiff provides no information that would suggest the Proposition 22 case had anything to do with this case. Proposition 22, adopted at the Primary Election on March 7, 2000, added section 308.5 to the Family Code to specify “[o]nly marriage between a man and a woman is valid or recognized in California.” After the Legislature enacted a domestic partners law, certain persons commenced litigation seeking a determination that the law was invalid in light of Proposition 22. (Knight v. Superior Court (2005) 128 Cal.App.4th 14, 17.) The judge who ruled on the demurrer to plaintiff’s complaint is the judge who ruled on the Proposition 22 case. He upheld the domestic partners law; this court unanimously upheld that decision; and the Supreme Court denied review. (Id. at p. 32.)

Plaintiff asserts that during the hearing on demurrer, the judge interrupted him and did not allow him sufficient “testimony time.” However, argument on demurrer is not the time for testimony; it is the time for argument focused on the sufficiency of the allegations of the complaint. A trial court has the authority, and the duty, to control the proceedings so that the matter can be fairly and expeditiously resolved. (Code Civ. Proc., §§ 128, subd. (a), 177.) Moreover, because plaintiff did not include a reporter’s transcript in the appellate record, we are unable to review the oral proceedings of the hearing on the demurrer. Consequently, plaintiff has failed to carry his appellate burden of establishing error.

DISPOSITION

The judgment is affirmed.

SCOTLAND , P.J.

We concur:

HULL , J.

CANTIL-SAKAUYE , J.

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