Opinion
B189326
12-6-2006
YELENA MANUKYAN, et al., Plaintiffs and Appellants, v. HOMEIRA FIROOZEH, D.D.S., et al., Defendants and Respondents.
Milan Moacanin and Laura M. Neelley for Plaintiffs and Appellants Yelena Manukyan and Alfred Abelyon. Ford, Walker, Haggerty & Behar, Mitchell D. Kaylor and Jay D. Brown for Defendants and Respondents Homeira Firoozeh, D.D.S., doing business as Sunland Dental Care and Manvash Emani-Sadr, D.D.S., doing business as Sunland Dental Care.
INTRODUCTION
On March 4, 2004, plaintiffs and appellants Yelena Manukyan and Alfred Abelyon (together plaintiffs) brought an action against defendants and respondents Homeira Firoozeh, D.D.S., Manvash Emani-Sadr, D.D.S., and Sunland Dental Care (collectively defendants) in which Manukyan asserted a cause of action for dental malpractice against defendants, and Manukyan and her husband, Abelyon, asserted a cause of action for loss of consortium against defendants. Defendants obtained summary judgment against plaintiffs on the ground that plaintiffs action was barred by the statute of limitations set forth in Code of Civil Procedure section 340.5 (section 340.5). Plaintiffs appeal from the judgment. Because there is a factual dispute over when Manukyan suspected or reasonably should have suspected her injuries resulted from malpractice, we reverse the judgment.
The record contains various spellings of this defendants first and last names. For consistency, we adopt the spelling used by Dr. Emani-Sadrs attorneys.
BACKGROUND
In their separate statement of undisputed material facts in support of their motion for summary judgment, defendants set forth what they assert are the following relevant undisputed facts.
Apparently to challenge Manukyans credibility, defendants claim, as one of their undisputed material facts, that Manukyan offered money to a former employee of defendants if the former employee testified falsely against them. Defendants do not state the nature of the proposed false testimony and fail to explain how such alleged conduct by Manukyan is relevant to the running of the statute of limitations in a motion for summary judgment. Plaintiffs dispute this claimed undisputed fact, relying in part on Manukyans denial in her declaration that she offered a Sunland Dental Care employee money to testify falsely against Drs. Firoozeh and Emani-Sadr. Even if plaintiffs did not dispute defendants asserted undisputed fact, the matter of Manukyans credibility is not a proper subject for a summary judgment motion. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [a witnesss credibility is a factual determination not appropriate for a court to consider at the summary judgment stage].)
Manukyan began receiving dental treatment from defendants on January 3, 1994. Defendants treated Manukyan on several occasions between January 3, 1994, and 1996. Defendants did not see Manukyan from 1996 through February 4, 2004. Manukyans treatment allegedly became "peculiar" in 2000, 2001, and 2002. Defendants last saw Manukyan on February 4, 2003. When Manukyan saw defendants in February 2003, she was "in a lot of pain" and asked why they did not "correct the problem." Plaintiffs filed their complaint on March 4, 2004.
This undisputed fact appears to contain a typographical error in that it refers to 2004 rather than 2003 and otherwise misstates Dr. Firoozehs testimony. In the cited testimony, Dr. Firoozeh testified that they did not see Manukyan "From 96 to 2003" and makes no reference to the February 4 date.
Plaintiffs dispute defendants asserted undisputed fact that they did not see Manukyan from 1996 through February 4, 2004, relying on Manukyans declaration in which she declared a recollection of having seen defendants for treatment once in 1998, twice in 1999 and 2000, three times in 2001, four times in 2002, and in February, March, and April in 2003; and on Manukyans deposition testimony that she regularly consulted at Sunland Dental Care between November 1996 and February 2003. Plaintiffs also dispute that Manukyan last saw defendants on February 4, 2003. In opposition to this asserted fact, Manukyan cites Dr. Firoozehs deposition testimony and her own declaration. Those excerpted portions of Dr. Firoozehs deposition testimony do not support plaintiffs position. In her declaration, Manukyan declares that Dr. Emani-Sadr prescribed her Amoxicillin on February 11, 2003, and that she went to Sunland Dental Care for treatment at the end of March 2003 and in the middle of April 2003. Plaintiffs submitted a copy of the prescription with their opposition to defendants motion for summary judgment.
In plaintiffs "Statement of Undisputed Material Facts," plaintiffs state, among other things, that the dentists at Sunland Dental Care convinced Manukyan that they would make her look "prettier." Manukyan testified in her deposition that when she first went to Sunland Dental Care in 1994 concerning a tooth, she was told that her teeth had been fixed "poorly" and that the dentists at Sunland Dental Care could make them look "much prettier." Initially, Manukyan declined, but "they" were persistent and she eventually agreed to the treatment, and the same day "they took it all out."
Under Code of Civil Procedure section 437c, subdivision (b)(3), a party opposing a motion for summary judgment is to file a separate statement responding to each of the material facts the moving party contends is undisputed, and is to add any additional material facts the opposing party contends are "disputed." We construe plaintiffs addition of additional "undisputed" as opposed to "disputed" material facts in their separate statement as complying with this subdivision.
Manukyan states that she returned to Sunland Dental Care between November 1996 and February 2003 to have her bridge fixed and that she continued treating at Sunland Dental Care through April 2003. On February 11, 2003, Dr. Emani-Sadr prescribed Amoxicillin to Manukyan. When the Amoxicillin did not work, Manukyan sought a second opinion from Dr. Sarkis Damargim, a general dentist who referred her to Dr. Raffi Margossian for further evaluation. According to Dr. Margossians deposition testimony, he saw Manukyan on February 25, 2003, and Manukyan complained of pain and swelling that had begun one month prior. There is no indication one way or the other whether Dr. Margossian orally described to Manukyan her condition or how it was caused.
Dr. Margossian prepared a report concerning Manukyan dated April 14, 2003. According to the report, "Examination and x-ray revealed multiple broken down non-restorable dentition." In the report, Dr. Margossian suggests a treatment plan that would take approximately 18 months to complete. Manukyan states that she first saw Dr. Margossians report in June 2003. According to Manukyans declaration, Manukyan did not realize the extent of the deteriorating condition of her teeth and suspect that the dentists at Sunland Dental Care had done a "bad job" until she reviewed Dr. Margossians report. Manukyan did not suspect malpractice until June 2003 because the dentists at Sunland Dental Care convinced her that they would make her look prettier and assured her that everything would be fine and she relied on their representation. Manukyan considered herself to be a patient of Sunland Dental Care until June 2003 and picked up her file from defendants on June 23, 2003.
The trial court granted summary judgment for the following reasons:
"On page 26 of her deposition testimony, plaintiff admitted that she stopped treatment with defendants in February 2003. (Exh. B, p. 26, l. 1-5.) On page 47 of her transcript, plaintiff states that she was "in a lot of pain" when she came to the office in February 2003 and that she specifically asked, `Why dont you correct the problem?
"Moreover, she thought it odd that no one spoke to her about the x-rays that were taken and, as a result, she `decided to come out of there. (Exh. B, p. 47, l. 19 — p. 48, l. 1.) That plaintiff knew of her `problem and its cause before February 2003 is evidenced by her testimony on page 48. There, beginning on line 7 to the end of the excerpt, plaintiff testified that she `was having trouble and [she] would go in and nothing was getting done, towards the end. In other words, plaintiff knew prior to February 4, 2003, that `nothing was getting done. Since she was coming to defendants prior to February 2003 to have something `done and `nothing was getting done, plaintiff clearly knew in and before February 2003 — not just suspected — that the services being provided were not curing the alleged discomfort in her mouth."
DISCUSSION
I. Standard of Review
"We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 .) We make `an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 .) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)" (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)
II. The Statute of Limitations
"`"Statutes of limitation . . . are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." (Wood v. Elling Corp. (1977) 20 Cal.3d 353, 362 [142 Cal.Rptr. 696, 572 P.2d 755], quoting Telegraphers v. Ry. Express Agency (1944) 321 U.S. 342, 348 [88 L.Ed. 788, 792, 64 S.Ct. 582]; see also American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538, 554 [38 L.Ed.2d 713, 727, 94 S.Ct. 756], rehg. den., 415 U.S. 952 [39 L.Ed.2d 568, 94 S.Ct. 1477]; Davies [v. Krasna (1975)] 14 Cal.3d [502,] 512.) Limitations statutes afford repose by giving security and stability to human affairs. (Valley Circle Estates v. VTN Consolidated, Inc. (1983) 33 Cal.3d 604, 615 [189 Cal.Rptr. 871, 659, P.2d 1160]; Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 787 [157 Cal.Rptr. 392, 598 P.2d 45].)" (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898-899.)
Section 340.5 provides, in pertinent part, "In an action for injury or death against a health care provider based upon such persons 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."
A. Three-Year Limitations Period
In their motion for summary judgment, defendants argued that the three-year after-date-of-injury limitations period in section 340.5 barred plaintiffs claim concerning treatment that ended in 1996. This argument appears based on defendants asserted undisputed fact that they did not see Manukyan from 1996 through February 4, 2003. Plaintiffs dispute that asserted undisputed fact. In Manukyans declaration, she declared a recollection of having seen defendants for treatment once in 1998, twice in 1999 and 2000, three times in 2001, four times in 2002, and in February, March, and April in 2003. In Manukyans deposition testimony, she testified that she regularly consulted at Sunland Dental Care between November 1996 and February 2003. The trial court did not grant summary judgment based on this argument, and defendants do not renew it on appeal. Defendants failure to obtain a ruling in the trial court and failure to address this issue on appeal forfeits this argument as a basis for affirming the judgment. In addition, the factual dispute over whether defendants treated Manukyan between 1996 and 2003 also would bar summary judgment on this ground.
B. One-Year Limitations Period
"Under Code of Civil Procedure section 340.5s discovery rule, `the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing . . . (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110 [245 Cal.Rptr. 658, 751 P.2d 923]; see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398 [87 Cal.Rptr.2d 453, 981 P.2d 79].) This rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110.) The first to occur under these two tests begins the limitations period." (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.)
"The `discovery exception applicable to malpractice is premised upon special considerations surrounding that tort which diminish the force of the defendants argument that he is entitled to the early protection of the statutory bar. In many cases, the harm caused by medical malpractice is not immediately apparent. The best medical treatment sometimes fails, or requires long and difficult recuperation, or produces bad side effects. Thus, even if a patient is unhappy with his condition, he may not suspect he has been wronged. Lacking medical knowledge, he may reasonably rely upon his negligent physicians soothing disclaimers. [Citation.] For these and other reasons, one often has no prompt means of learning that he has been hurt by professional negligence." (Gutierrez v. Mofid, supra, 39 Cal.3d at p. 899.)
Defendants contend that the one-year statute of limitations began to run on Manukyans malpractice claim no later than February 2003 by which time Manukyan knew or suspected that her treatment by defendants was defective, and had run by the filing of plaintiffs complaint on March 4, 2004. In support of this contention, they rely on Manukyans deposition testimony that her treatment became peculiar in 2000, 2001, and 2002, and "thats why I decided to come out of there;" her deposition testimony that she was "in a lot of pain" when she was treated in February 2003 and she asked "Why dont you correct the problem;" and her deposition testimony that she stopped treatment with Sunland Dental Care in February 2003.
The evidence fails to prove conclusively that Manukyan suspected or reasonably should have suspected negligence by February 4, 2003, or by some other time outside of the limitations period. According to plaintiffs evidence, Manukyan continued to receive treatment from defendants after February 4, 2003. Dr. Emani-Sadr prescribed Amoxicillin to Manukyan on February 11, 2003. Then, when the Amoxicillin did not work, Manukyan sought a second opinion from Dr. Damargim who referred her to Dr. Margossian. Manukyan saw Dr. Margossian on February 25, 2003. Manukyan complained of pain and swelling that had begun one month prior. Dr. Margossians report and suggested treatment plan concerning Manukyan was dated April 14, 2003. Manukyan states that she did not see the report until June 2003. According to Manukyan, she did not suspect malpractice prior to reviewing Dr. Margossians report. There is no indication as to whether Dr. Margossian made any oral statements to Manukyan regarding her condition prior to his report. Although it is arguable that her suspicions should have been aroused, we cannot make that determination on this record.
Manukyans evidence is consistent with the conclusion that she did not suspect malpractice until June 2003. A reasonable juror could conclude that Manukyan did not suspect malpractice until June 2003 based on the fact that she did not pick up her file from defendants until June 23, 2003. If Manukyan suspected that defendants committed malpractice prior to February 2003 or by February 4, 2003 — the date she visited defendants and was "in a lot of pain" — then it is reasonable to assume that she would have picked up her file in February 2003 or shortly thereafter and that because Manukyan did not pick up her file until June 23, 2003, she did not suspect malpractice until shortly before she picked up her file.
When Manukyan sought a second opinion during arguably ongoing medical treatment, she engaged in an accepted practice. (Kitzig v. Nordquist, supra, 81 Cal.App.4th at p. 1393 ["Holding that seeking a second opinion necessarily triggers a malpractice statute of limitations whenever a patient is motivated by a possible suspicion—however momentary—that her doctor was `doing something wrong would hinder a patients ability to obtain the best medical care"].) Because seeking a second opinion is an accepted practice, a reasonable juror could conclude that a reasonable person would not suspect malpractice prior to receiving the second opinion. Dr. Margossians report and suggested treatment plan (or second opinion) was dated April 14, 2003, and Manukyan claimed she did not see the report until June 2003 — both dates within the one-year limitations period.
Manukyans use of the word "peculiar" to describe her treatment in her deposition testimony does not, as a matter of law, establish that Manukyan suspected malpractice thus triggering the statute of limitations prior to February 4, 2003. Manukyan testified through an interpreter and it is unclear what she meant when she used that word. When Manukyan testified in her deposition that her treatment was peculiar in 2000, 2001, and 2002, defendants failed to ask follow up questions to determine if she was stating her belief as of 2000, 2001, and 2002 that defendants were providing negligently deficient care.
Based on the evidence now in the record, reasonable minds could differ over whether the evidence shows that Manukyan suspected or reasonably should have suspected that the source of her injury was dental malpractice. We express no opinion on how this issue should be resolved. There is a substantial discrepancy in the evidence as to what occurred over a lengthy period of time. Thus, there is a triable issue of material fact concerning the date that the statute of limitations began to run, and, accordingly, we reverse the judgment.
DISPOSITION
The judgment is reversed. Plaintiffs are awarded their costs on appeal.
We Concur:
TURNER, P. J.
KRIEGLER, J.