Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC332447. James R. Dunn, Judge.
Peter Vidikan, in pro per, for Plaintiff and Appellant.
Callahan, Thompson, Sherman & Caudill, LLP and Christopher Zopatti for Defendant and Respondent.
CHANEY, J.
Plaintiff Dr. Peter Vidikan suffered through a horrendous home remodel. In addition to suing various contractors and other participants in the remodel nightmare, Dr. Vidikan sued his longtime therapist, Dr. Mason Sommers, who had (during the course of Dr. Vidikan’s therapy) a close personal and business relationship with the individual responsible for designing and managing the remodel. Of his 22 causes of action, Dr. Vidikan alleged three against Dr. Sommers, all of which sound in professional negligence.
The trial court granted summary judgment in favor of Dr. Sommers. The court held the medical malpractice statute of limitations embodied in Code of Civil Procedure, section 340.5 (“section 340.5”) barred the claims against Dr. Sommers. Dr. Vidikan appealed and we affirm.
As this is an appeal from a summary judgment, we take the background facts from the second amended complaint and the documents submitted in support of and in opposition to summary judgment. We accept as true the facts supported by the losing party’s evidence and the reasonable inferences from them. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148.) We resolve evidentiary ambiguities or doubts in favor of the losing party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
For approximately six years, Dr. Vidikan, a dermatologist, saw Dr. Sommers, a psychologist, for bi-weekly psychotherapy sessions.
1. Office Remodel
During the course of his treatment with Dr. Sommers, Dr. Vidikan relocated his dermatology practice. At Dr. Sommers’s recommendation, Dr. Vidikan hired Gregory Gill to decorate the new dermatology office. After the office remodel had begun, Dr. Vidikan discovered that Dr. Sommers and Gill were best friends. Dr. Sommers also told Dr. Vidikan that he (Dr. Sommers) bought cars from Gill and worked on projects, including a home remodel, with Gill. In light of the close relationship between Dr. Sommers and Gill, Dr. Vidikan was aware—at least on a “gut level”—that if anything happened with Gill, it would affect his therapy with Dr. Sommers.
2. Home Remodel and Termination of Therapy
Sometime after the office remodel, Gill proposed remodeling Dr. Vidikan’s home and Dr. Vidikan hired him to do the project. Although Dr. Vidikan was concerned that Dr. Sommers’s close friendship with Gill might cause problems in therapy, Dr. Sommers assured Dr. Vidikan that there would be no problems.
Unfortunately, the home remodel became a nightmare for Dr. Vidikan. Among other things, the project took much longer than anticipated and Dr. Vidikan was required to move out of his house. In addition, most of his personal belongings (many of which were irreplaceable) were lost after Gill (without Dr. Vidikan’s knowledge or approval) removed them from the house, stored them at a storage facility, then failed to pay the storage fee, prompting the storage facility to dispose of them.
During much of the home remodel, Dr. Vidikan continued his therapy sessions with Dr. Sommers. As the remodel became more and more disastrous, it became the subject of many of the therapy sessions. Dr. Vidikan grew increasingly upset, confused and angry, however, with Dr. Sommers’s response (or lack of a response) to his concerns and anxiety over the home remodel. At his deposition, Dr. Vidikan stated that his therapy sessions with Dr. Sommers “became inappropriate... in the latter half of 2001 and had to do with [Dr. Sommers’s] unresponsiveness....” He explained Dr. Sommers’s unresponsiveness as “[v]erbal unresponsiveness, emotional unavailability, lack of facial expression, lack of validation, lack of acknowledging that I was in the room.” When Dr. Vidikan would raise the remodel in therapy, Dr. Sommers would have “[n]o answer, no verbal response, no facial movement, [and] occasionally his eyes were shut. He looked like he was sleeping.” This was disconcerting to Dr. Vidikan because Dr. Sommers normally was proactive and helpful.
Dr. Vidikan stated that Dr. Sommers “impaired” him. In particular, Dr. Vidikan stated he had “difficulty concentrating,” was “easy to anger” and had “regular anxiety.” He also said he “lost a tremendous amount of confidence in myself, in my ability, and in my own perceptions as well as in my ability to have relationships with people.” As to his growing anger, Dr. Vidikan said it was “like a raw nerve that’s painful, that’s triggered easily. That’s triggered with less than normal amount of stimulus.” Dr. Vidikan felt like Dr. Sommers was fanning the flames. In December 2001, Dr. Vidikan told Dr. Sommers “it was as if [Gill] was raping me and... Dr. Sommers was holding me down to allow it to happen.”
Dr. Vidikan testified that, by January 2002, he knew his rising and easily triggered anger was not normal. On one occasion, in late-December 2001 or early-January 2002, while driving home from a therapy session with Dr. Sommers, Dr. Vidikan was so angry he fleetingly thought of running over pedestrians. He realized such anger was not normal and that his therapy was not going well. He stated that, at that point, “something was really wrong and I at the very least needed to take a break from therapy.”
In that same time frame (late 2001, early 2002), Dr. Vidikan realized therapy was no longer therapeutic. Dr. Vidikan stated that he knew on a “gut” level “something was being provoked in therapy that was making me more depressed, more angry, more hostile, difficult to work with. It was making me difficult to conduct business.... I was having difficulty with relationships and it was all tied in with the therapy. And that was a visceral gut feeling, not a thinking process.” In approximately January 2002, Dr. Vidikan believed Dr. Sommers had been negligent (although not necessarily in a legal sense) with respect to his treatment and care.
In March 2002, Dr. Vidikan terminated his therapy sessions with Dr. Sommers.
3. June and December 2004 Meetings
In June or July 2004, Dr. Vidikan met with Dr. Sommers at a coffee house. They discussed how Dr. Vidikan’s therapy had ended and how he had been angry because he was not getting the therapy he needed. Dr. Sommers apologized.
In December 2004, the two met again at a coffee house. Dr. Sommers revealed for the first time that, during the course of Dr. Vidikan’s therapy, Dr. Sommers had loaned substantial amounts of money to Gill and had worked with Gill on real estate ventures. Thus, Dr. Vidikan did not know the full extent of Dr. Sommers’s relationship or involvement with Gill until after the home remodel was well underway and after Dr. Vidikan had ended his therapy with Dr. Sommers. Dr. Vidikan was devastated and traumatized upon learning in December 2004 of Sommers’s business relationship with Gill. He was unable to return to work, avoided all social interaction and eventually sold his medical practice.
4. Dr. Vidikan’s Lawsuit
On April 26, 2005, Dr. Vidikan sued Dr. Sommers, Gill and others. As against Dr. Sommers, the operative complaint alleges causes of action for professional negligence, fraudulent omission, and negligent infliction of emotional distress. Only these causes of action are relevant here.
The record before us does not include a “filed” stamped copy of either the original or the operative complaint. Nonetheless, we accept that Dr. Vidikan filed his original complaint on April 26, 2005. The parties do not dispute that date and the transcript of the hearing on the motion for summary judgment and trial court docket indicate that Dr. Vidikan filed his original complaint on that date. Similarly, we accept that the un-stamped copy of Dr. Vidikan’s second amended complaint, which was lodged as an exhibit in support of Dr. Sommers’s motion for summary judgment, is an accurate copy of the second amended complaint filed with the trial court. Both parties cite to that document as the operative complaint.
Dr. Sommers filed a motion for summary judgment arguing that the statute of limitations contained in Code of Civil Procedure, section 340.5 barred Dr. Vidikan’s claims against him. Dr. Sommers also moved for summary adjudication as to each cause of action, claiming each was barred by the statute of limitations and that Dr. Vidikan could not prove essential elements of each claim. The trial court granted summary judgment, finding the statute of limitations barred Dr. Vidikan’s claims against Dr. Sommers. Dr. Vidikan appeals.
Discussion
1. Standard of Review
Code of Civil Procedure section 437c requires the trial court to grant summary judgment if the papers submitted on the motion show that “there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) There is a genuine issue of material fact only if, in accordance with the applicable standard of proof, a reasonable trier of fact could find the underlying fact in favor of the party opposing the motion. (Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367, 1371.)
We review the trial court’s entry of summary judgment de novo and independently review the record to determine if summary judgment is merited. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In reviewing a summary judgment, we review the prevailing party’s papers strictly and the losing party’s papers liberally. (Mammoth Mountain Ski Area v. Graham, supra, 135 Cal.App.4th at p. 1370.) We accept as true the facts supported by the losing party’s evidence and the reasonable inferences from them. (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 148.) We resolve evidentiary ambiguities or doubts in favor of the losing party. (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768.)
2. Code of Civil Procedure, Section 340.5
Section 340.5 provides a one-year and a three-year statute of limitations for claims of professional negligence against health care providers. “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... in the person of the injured person.” (§ 340.5, emphasis added.) “Professional negligence” is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services [for which the provider is licensed], which act or omission is the proximate cause of a personal injury or wrongful death....” (§ 340.5, subd. (2).)
The one-year and three-year limitations periods are different in an important respect. The one-year limitations period begins to run when the plaintiff is aware of both the injury and the negligent cause of the injury. (Marriage and Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1652; Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1545.) The three-year limitations period begins running, however, from the date of injury alone, even if the plaintiff is unaware of its cause. (Marriage and Family Center, supra, 228 Cal.App.3d at p. 1652; see also Brown v. Bleiberg (1982) 32 Cal.3d 426, 432.) Prior to this current two-tiered structure, the limitations period for professional negligence was one year and ran from the date the plaintiff discovered, or reasonably should have discovered, the injury and its negligent cause. (See Marriage and Family Center, supra, 228 Cal.App.3d at p. 1652.) Under the old limitations period, the running of the statute could be deferred indefinitely. (Ibid.) Thus, in an effort to impose an outside cap on such actions, our Legislature created a two-tiered structure, with the outer limit being four years (now three years) from the date of injury, regardless of discovery of the cause of injury. (Brown v. Bleiberg, supra, 32 Cal.3d at p. 432; Marriage and Family Center, supra, 228 Cal.App.3d at p. 1652.)
The parties do not dispute that section 340.5 applies to Dr. Vidikan’s claims against Dr. Sommers. The gravamen of Dr. Vidikan’s claims against Dr. Sommers is professional negligence as that phrase is defined in section 340.5. And Dr. Sommers is a “health care provider” for purposes of section 340.5. (§ 340.5, subd. (1) [health care providers include any person licensed under Division 2 of the Business and Professions Code, including psychologists such as Dr. Sommers].)
The parties dispute (a) when the section 340.5 statute of limitations began to run, and (b) whether Dr. Sommers’s conduct tolled the statute of limitations. We address each issue in turn.
a. Trigger
Dr. Vidikan argues the statute of limitations did not begin to run until December 2004, when he learned for the first time that, during the course of his therapy, Dr. Sommers had made significant loans to, and participated in real estate ventures with, Gill. Dr. Vidikan claims that, upon learning of Dr. Sommers’s business relationship with Gill, Dr. Vidikan suffered his “most serious injury” and first suspected medical malpractice.
In contrast, Dr. Sommers argues the statute of limitations was triggered no later than March 2002, when Dr. Vidikan terminated therapy with Dr. Sommers after realizing on a “gut” level that therapy was making him more depressed, angry and hostile, making it difficult for him to work, and creating difficulties in his relationships. If Dr. Sommers is correct, Dr. Vidikan’s claims of professional negligence are time-barred (unless a tolling provision applies) because he filed his complaint in April 2005—more than three years after the limitations period began to run. We agree with Dr. Sommers’s analysis.
Although it is undisputed that Dr. Vidikan suffered tremendously after learning of Dr. Sommers’s business relationship with Gill, Dr. Vidikan’s position misses the relevant inquiry. For purposes of section 340.5, an injury occurs “at the point at which ‘appreciable harm’ was first manifested.” (Brown v. Bleiberg, supra, 32 Cal.3d at p. 437, fn. 8.) Thus, the three-year limitations period is triggered when “the plaintiff suffers appreciable harm or [at] the point in time at which appreciable harm is first manifested. These are not alternative events but simply two ways of describing the phenomenon of ‘injury’ within the meaning of section 340.5.” (McNall v. Summers (1994) 25 Cal.App.4th 1300, 1309. See also Garabet v. Superior Court, supra, 151 Cal.App.4th at p. 1545 [“once there is a manifestation of the injury in some significant way, the three-year limitations period begins to accrue”].)
Here, undisputed facts establish that Dr. Vidikan’s injury occurred—or appreciable harm was manifest—no later than March 2002. Beginning in late-December 2001, Dr. Vidikan began feeling distressed and extremely angry because Dr. Sommers would not respond when Dr. Vidikan raised problems he was having with the home remodel. This affected Dr. Vidikan personally and professionally.
Although by March 2002 Dr. Vidikan was aware of his abnormal anger and growing aggravation and distress, he claims this was insufficient to trigger the statute of limitations because he was unaware of the negligent cause of his injury, which he did not discover until December 2004. While this may be true, it is not relevant to the running of the three-year limitations period, which begins to run from the date of injury alone. (Marriage and Family Center, supra, 228 Cal.App.3d at p. 1652.) The undisputed evidence puts that date somewhere in late-2001 or early 2002, and at the latest March, 2002. As the trial court explained, in order for Dr. Vidikan to get past the three-year limitations period, he would have to take the untenable position that he suffered no harm prior to the 2004 meeting. Thus, because he suffered injury no later than March 2002 and he filed his complaint in April 2005, we conclude Dr. Vidikan cannot escape the bar of section 340.5.
b. Tolling
For the first time on appeal, Dr. Vidikan argues the statute of limitations was tolled because Dr. Sommers intentionally concealed his professional negligence. Although a claim otherwise barred by section 340.5 may be saved under the tolling provisions of that section, Dr. Vidikan failed to raise this issue below. In fact, counsel for Dr. Vidikan did not raise the issue even after the trial court asked about it. At the hearing on Dr. Sommers’s motion for summary judgment, the trial court noted “I don’t see where anyone is seeking tolling aspects of this motion. If that’s the case, then you need to point that out to me - - those would be ‘proof of fraud, intentional concealment or presence of foreign body.’ None of those are alleged in this case.” Counsel for Dr. Vidikan did not correct the court or otherwise claim he was raising any of those aspects of tolling. Because the issue was not raised below, we will not consider it for the first time on appeal. (Havstad v. Fidelity National Title Insurance Co. (1997) 58 Cal.App.4th 654, 661 [“‘“possible theories that were not fully developed or factually presented to the trial court cannot create a ‘triable issue’ on appeal”’”].)
Although Dr. Vidikan claims the issue was raised below (albeit “buried” and “not headline[d]”), we do not agree. To support his position that tolling by intentional concealment was raised below, Dr. Vidikan points to a page from his brief in opposition to summary judgment, his separate statement of disputed facts in opposition to summary judgment, and his amended complaint. Those documents, however, do not address tolling and intentional concealment. Rather, they address Dr. Vidikan’s position that, while he was in therapy, Dr. Sommers failed to disclose that, in addition to a close friendship, he and Gill also had a significant business relationship.
Intentional concealment requires more than nondisclosure or lack of informed consent. (Trantafello v. Medical Center of Tarzana (1986) 182 Cal.App.3d 315, 321.) “‘Concealment which will avoid the statute [of limitations] must go beyond mere silence. It must be something done to prevent discovery …. Concealment must be the result of positive acts. Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry.’” (Phelps v. Grady (1914) 168 Cal. 73, 78.) The plaintiff must provide specific proof of “affirmative acts [of concealment] by the health care provider rather than mere omission or exercise of poor judgment.” (Wallace v. Hibner (1985) 171 Cal.App.3d 1042, 1050.) And when an intentional concealment claim is based on what the healthcare provider did not tell the plaintiff, the plaintiff must show that the provider knowingly misrepresented a fact to the plaintiff. (Trantafello v. Medical Center of Tarzana, supra, 182 Cal.App.3d at p. 321; see also McNall v. Summers, supra, 25 Cal.App.4th at pp. 1311-1312.)
Because these factual issues were not raised below, we decline to address them for the first time on appeal.
3. Ineffective Representation
In his reply brief on appeal, Dr. Vidikan claims his representation below was ineffective. Dr. Vidikan claims that, without his knowledge or consent, his attorney did not attend the summary judgment hearing, but instead sent a substitute attorney in his place. Dr. Vidikan argues the substitute attorney was not familiar with the case and inaccurately and inadequately represented his position. Although we express no opinion on whether Dr. Vidikan has a valid claim against his trial counsel, this appeal is not the appropriate forum for raising the issue. Dr. Vidikan cites no authority for the proposition that we can or should address it here.
4. Augmenting the Record
Also in his reply brief, Dr. Vidikan asks us to augment the record on appeal to include excerpts from Dr. Sommers’s deposition, on which Dr. Vidikan relied below. We deny this request. A party seeking to augment the record on appeal must file a separate motion, which Dr. Vidikan did not do, and we decline to augment the record on our own motion. (Cal. Rules of Court, rule 8.155(a).)
In any event, we conclude the deposition excerpts are not necessary to our decision. Dr. Vidikan’s separate statement of disputed facts cites Dr. Sommers’s deposition for two points only, neither of which alters our conclusion here. First, Dr. Vidikan’s separate statement of disputed facts states Dr. Sommers testified that he loaned Gill significant amounts of money. Second, the separate statement indicates Dr. Sommers testified that he participated in real estate projects with Gill. Dr. Vidikan claims he was unaware of these facts until December 2004. As explained above, however, because Dr. Vidikan’s injury manifested itself no later than March 2002, his discovery of these additional facts is irrelevant to the statute of limitations analysis.
Disposition
The judgment is affirmed.
We concur: MALLANO, P. J., JOHNSON, J.