Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PC20070611
SIMS, J.Plaintiff James H. Cole appeals a judgment of dismissal entered after the trial court sustained without leave to amend the demurrers of defendants Rajiv Pathak and Marshall Medical Center (Marshall Medical). Cole contends the trial court erred by determining his complaint to be barred by the doctrine of res judicata and by the statute of limitations for fraud. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The prior action
In February 2005, Cole filed an action in propria persona against Pathak and Marshall Medical for medical malpractice. Cole’s complaint alleged he was taken to Marshall Medical after he was injured in a car accident on May 14, 2000. On May 17, 2000, he returned to Marshall Medical, complaining of pain and weakness in his left leg. Pathak, a physician, examined Cole and concluded he suffered an aggravation of preexisting spinal problems. About a month later, Cole returned to the emergency room with severe pain in his left side and nausea from pain medications. He was discharged with an anti-nausea medication.
In December 2000, Cole suffered a stroke and returned to the Marshall Medical emergency room. In June 2002, Cole went back to the emergency room with symptoms indicating another stroke. The treating physician concluded the symptoms were caused by hypertension, changed Cole’s prescriptions, and discharged him.
In August 2002, Cole had a heart attack. After his admission to Marshall Medical, he was transferred to Sutter Memorial Hospital for cardiac study. During his hospitalization, Cole learned that he might have had a stroke at the time of his car accident and his heart problems might also be related to the accident trauma.
Cole underwent more cardiac testing at Marshall Medical in October 2002. He did not learn the result of the testing until October 2004. Cole’s wife met with Pathak shortly thereafter to discuss the test results but was referred to a cardiologist for answers to her questions. After that meeting, Cole was unable to secure another appointment with Pathak.
In February 2005, Cole filed a complaint against Pathak and Marshall Medical, alleging medical malpractice, intentional and negligent infliction of emotional distress, and abandonment of care by Pathak. In April 2006, the trial court granted defendants’ motions for summary judgment on grounds that Cole’s claims were barred by the statute of limitations, failed to produce evidence of medical malpractice, and lacked evidence to show Pathak abandoned Cole’s treatment.
Cole appealed the summary judgments, and we affirmed. (Cole v. Marshall Medical Center (June 1, 2007, C053066 & C053344) [nonpub. opn.].)
The Present Action
In October 2007, Cole filed the present action in propria persona against Pathak and Marshall Medical for fraud, false representation, deceit, concealment, and “prejudice.”
The complaint focuses on the same medical treatments and injuries that were the subject of the prior action. The current complaint alleges Cole was taken to Marshall Medical after a car accident on May 14, 2000. Between May 14, 2000, and August 5, 2002, he was readmitted at Marshall Medical on multiple occasions with complaints of chest pain and stroke-like symptoms.
The injuries he sustained in 2000 could have been diagnosed by cardiac catheterization. Pathak and Marshall Medical concealed their inability to perform cardiac catheterization.
On August 7, 2002, Cole was admitted at Sutter Memorial Hospital for further cardiac study. The cardiologist concluded Cole suffered a traumatic myocardial infarction in 2000, and two strokes between 2000 and 2002.
Pathak and Marshall Medical separately demurred on grounds of res judicata, failure to state a cause of action, and that the statute of limitations for fraud barred the action. The trial court took judicial notice of the documents in Cole’s prior case against Pathak and Marshall Medical. On March 24, 2008, the trial court sustained the demurrers without leave to amend.
Cole filed a notice of appeal from judgment of dismissal on April 28, 2008. Judgment, however, was not entered until two days later.
None of the parties addresses the premature filing of Cole’s notice of appeal. Instead, the parties brief the issues of res judicata and statute of limitations. We exercise our discretion to deem the notice of appeal – which correctly identifies the nature of the judgment being appealed – as if filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(e)(2); undesignated rule references are to the California Rules of Court.)
STANDARD OF REVIEW
In an appeal from a judgment sustaining a demurrer, we independently review whether the complaint states a cause of action. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111 (Fremont Indem. Co.).) “We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice 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. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)” (Freemont Indem. Co., supra, at p. 111.)
DISCUSSION
I
Res Judicata
Cole argues the present case differs sufficiently from his first action to preclude the doctrine of res judicata from applying. He contends the current complaint’s causes of action for fraud, false representation, deceit, and concealment do not overlap with the medical malpractice claims in the former action. We disagree.
Cole also asserts a cause of action for “prejudice,” which he defines as “a failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored.” Cole cites no authority recognizing such a cause of action. For lack of authority, we deem his argument on this issue to be forfeited. (Rule 8.204 (a)(1)(B) and (C); People v. Stanley (1995) 10 Cal.4th 764, 793 [failure to cite authority forfeits appellate review].)
A
The doctrine of res judicata bars a second lawsuit between the same parties regarding the same primary right. As the California Supreme Court has explained, “The primary right theory is a theory of code pleading that has long been followed in California. It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. (McKee v. Dodd (1908) 152 Cal. 637, 641.) The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) A pleading that states the violation of one primary right in two causes of action contravenes the rule against ‘splitting’ a cause of action. (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894-895.)
“As far as its content is concerned, the primary right is simply the plaintiff's right to be free from the particular injury suffered. (Slater v. Blackwood, supra, 15 Cal.3d at p. 795.) It must therefore be distinguished from the legal theory on which liability for that injury is premised: ‘Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.’ (Ibid.)” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682.)
The primary right doctrine applies when “1) the issues decided in the prior adjudication are identical with those presented in the later action; 2) there was a final judgment on the merits in the prior action; and 3) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication.” (Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Assn (1998) 60 Cal.App.4th 1053, 1065.)
Here, all three criteria are met for the application of res judicata. First, both cases involve the same primary right: Cole’s right to remain free of deficient medical care by Pathak at Marshall Medical in treating ailments attributable to the car accident in May 2000. Second, the prior case resulted in a final judgment. Third, the parties in this case are the same as in the prior action. Pathak and Marshall Medical are defendants to a complaint filed by Cole.
Although Cole emphasizes concealment in his current complaint, his new causes of action merely assert different legal theories for holding the same defendants liable for breach of the duty of care giving rise to the same injuries. The present action seeks vindication of the same primary right as Cole’s prior case and is therefore barred by the doctrine of res judicata. Accordingly, the trial court did not err in sustaining defendants’ demurrers without leave to amend.
B
Cole argues his claims for fraud are based on facts which he discovered after the original litigation commenced. By reformulating his legal theories, Cole seeks to avoid the bar imposed by the statute of limitations. We reject his argument because Cole previously litigated the issues he now claims to be new.
The statute of limitations for an action based on fraud, false representation, deceit, or concealment is three years. (Code Civ. Proc., § 338, subd. (d).) However, the action does not accrue “until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Ibid.) “The courts interpret discovery in this context to mean not when the plaintiff became aware of the specific wrong alleged, but when the plaintiff suspected or should have suspected that an injury was caused by wrongdoing. The statute of limitations begins to run when the plaintiff has information which would put a reasonable person on inquiry.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373-1374.)
Here, the facts Cole asserts as newly discovered were ones that he relied upon in the prior litigation. His current complaint relies on an August 2002 letter from Dr. Malcolm McHenry and an articulation of standards of care set forth by the Joint Commission Accreditation Health Care Organization. Cole alleges no concealment of McHenry’s letter to him. Instead, Cole presented Dr. McHenry’s diagnosis as evidence in the prior action.
The summary judgment ruling in the prior case mentions Cole’s reliance on the Joint Commission on Accreditations of Health Organizations document that Cole’s complaint in the present case implies to be newly discovered evidence. Cole litigated the prior action in reliance on the two documents he now claims to support a cause of action he did not discover until March 2005 – after the filing of his prior action.
The three-year statute of limitations for fraud commenced no later than December 2002, when he suspected medical malpractice. A “‘presumptive’ knowledge is inferred when the patient becomes aware of facts which would put a reasonable person on inquiry, or the patient's suspicions are aroused and she is alerted to the need for investigation.” (Barber v. Superior Court (1991) 234 Cal.App.3d 1076, 1082-1083.)
Cole’s admitted suspicions of malpractice in December 2002 render the complaint filed in this case in February 2008 untimely. His claims are barred by the statute of limitations. (Code Civ. Proc., § 338, subd. (d).) In the prior case, the trial court noted that Cole argued “purported concealment delayed discovery beyond May 13, 2003, when [Cole] admits he suspected his medical care providers, including defendant Marshall [Medical], had done something wrong in his treatment.” Cole raises the same issue of intentional concealment in the present case.
In our prior decision, we held Cole’s allegation of concealment by defendants did not toll the statute of limitations. As we explained, “The plaintiff asserts that the ‘concealment’ of the results of the October 2002 diagnostic tests and the other information purportedly attesting to the inadequacies of the defendants in treating stroke and cardiac patients delayed his discovery of facts putting him on notice of purported negligence on their part. However, this alleged concealment did not deter him from concluding that he should bring action against the defendants. Indeed, by April 2003 his attorney was already in possession of the cardiologist's deposition opinion that the accident was a cause of the strokes as a result of damage to his heart that should have been detected in May 2000. Whatever the probative value of the additional evidence, it relates only to proof of the plaintiff's case, not an awareness of a potential actionable wrong (a distinction the plaintiff does not appreciate).... The plaintiff therefore fails to establish any causal connection between this alleged concealment of facts and the failure to file a timely complaint.” (Cole v. Marshall Medical Center, supra, C053066 & C053344, italics added.)
Cole denies that his suspicions regarding the concealment of deficient medical care provided by Pathak and Marshall Medical triggered the period to file suit. In support, he cites Hills v. Aronsohn (1984) 152 Cal.App.3d 753 (Hills) and Artal v. Allen (2003) 111 Cal.App.4th 273 (Artal). Neither case helps his position.
Hills involved negligent injection of silicone into the patient’s breasts, which caused soreness and lumps. (Hills, supra, 152 Cal.App.3d at p. 756.) Not until the patient underwent a mastectomy did she learn the cause of her suffering. (Id. at p. 760.) Because the cause of her ailment could not have been discovered without surgery, the Hills court held that the statute of limitations did not begin to run until her surgery. (Ibid.)
Artal also involved an instance of medical malpractice that could not have been discovered without surgery. (Artal, supra, 111 Cal.App.4th at p. 276.) The patient in Artal suffered complications from an improperly performed intubation during a prior surgery. Thereafter, she sought help from at least 20 medical specialists – none of whom were able to determine the cause of her pain. (Id. at p. 281.) As her diligent efforts showed, she could not have discovered that the prior intubation had caused her injury without exploratory surgery. (Ibid.) As in Hills, the Artal court concluded that the statute of limitations did not begin to run until the plaintiff could have discovered the cause of the injury. (Ibid.) The Artal court explained, “requiring a plaintiff to sue while still ignorant of her injury and its negligent cause would require a plaintiff to bring a lawsuit without any objective basis for believing that malpractice had occurred.” (Ibid.)
In this case, Cole is not suing for an injury discoverable only by surgery or other invasive procedure. Instead, his second lawsuit alleges fraud, deceit, and concealment based on evidence he possessed at the time of his first lawsuit. Moreover, Cole referred to that evidence in advancing claims of concealment in his prior suit. (Cole v. Marshall Medical Center, supra, C053066 & C053344.) Cole’s actual knowledge of the basis for his claims of fraud, deceit, and concealment renders Hills and Artal inapposite.
We conclude that the primary right in both cases is identical, and bars the second action on grounds of res judicata. Even apart from res judicata, Cole’s second case is barred by the three-year statute of limitations applying to his current causes of action. Accordingly, the trial court properly entered judgments of dismissal in favor of Pathak and Marshall Medical.
II
Dismissal Without Leave to Amend
Cole contends the trial court erred in sustaining the demurrers without leave to amend. Cole acknowledges he bears the burden of demonstrating that a proper amendment can be made. To this end, Cole merely repeats he discovered the intentional concealment of his mistreatment by Pathak and Marshall Medical after filing his prior action.
A plaintiff cannot satisfy the burden to demonstrate the ability to amend a complaint to state a valid cause of action simply by asserting such ability. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) “Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend.” (Id. at p. 44.)
As we have already explained, the primary right asserted in both of Cole’s cases concerns the same right to be free of deficient care for injuries sustained in his car accident. In the prior action, Cole had the opportunity to litigate his causes of action for the violation of that right, and actually litigated the issue of concealment of defendants’ inability to conduct cardiac catheterization. He cannot recast a previously litigated primary right into new causes of action. Cole has not demonstrated how he can amend the complaint to cure the res judicata and statute of limitations problems that are fatal to his current causes of action.
The trial court did not err in denying Cole leave to amend.
DISPOSITION
The judgment is affirmed. Pathak and Marshall Medical Center shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur: SCOTLAND, P. J., BUTZ, J.