Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2009-00091672 CU-CR-CTL, Charles R. Hayes, Judge.
NARES, J.
Patrick W. Barnes, in propria persona, sued Scripps Mercy Hospital Chula Vista (Scripps) and others, asserting he suffered injuries as a result of a heart imaging stress test performed at Scripps on June 15, 2007. He filed a complaint on June 12, 2009. On October 26, 2009, he also filed a peremptory challenge against the judge assigned to the case, the Honorable Charles R. Hayes.
Scripps asserts that plaintiff erroneously sued it under this name, and its true name is Scripps Health dba Scripps Mercy Hospital - Chula Vista.
Scripps demurred, asserting (1) the complaint was barred by the statute of limitations, and (2) Barnes had no standing to bring an action for medical fraud or unauthorized use of federally regulated medication. Barnes filed no opposition to the motion and did not appear at the demurrer hearing. The court sustained the demurrer and entered judgment in favor of Scripps.
The court denied the peremptory challenge against Judge Hayes as being untimely.
On appeal, Barnes asserts the court erred in sustaining the demurrer because (1) the statute of limitations was tolled while he pursued an action in federal court, and (2) he did not discover his injuries until May 2009 and filed the complaint within one year of that date. He asserts the court erred in denying his peremptory challenge, claiming his challenge was timely. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
Barnes's complaint alleged causes of action for medical malpractice, failure to diagnose, failure to treat, Medi-Cal fraud and "unauthorized use of federally regulated medication (radiation)."
Barnes alleges that on June 15, 2007, he was at Scripps to have a heart imaging stress test. At the time of the procedure, Barnes observed a Scripps nurse's assistant "pushing downward on a plunger at the top of the tube containing the Radioactive [Medication]." He further alleged that "immediately after being injected with the Computer Generated Radioactive Medication which traveled through the syringe, earlier inserted, on [his] left hand" he "went into shock." Barnes alleged that he "remembers the room began to get dark with star[s] throughout the Radiology Lab, " and his "last thought he remember[ed] was ("I'M GOING TO DIE NOW")...."
Barnes alleged that he was released that evening and, while leaving, he "noticed all of his teeth were loose as if they were going to fall-out. Along with a pain similar [to] what you'd think a knife or a sharp object would feel like, in the lower abdomen area." He further alleged that "shortly after leaving the hospital on the evening of June 15, 2007 and upon arriv[ing] at the 2800 block of University Ave, [he] went into shock from pain associated with the examination at [Scripps] in the Radiology Lab and collapsed onto the sidewalk."
He alleged that "for the following three weeks the scenarios explained above... continued; except for ADDITIONAL symptoms that were being experienced, such as RADIATION PROCTITIS accompanied with pain, shock, internal bleeding, external bleeding, continual angina, confusion, Suicidal ideation, delirium."
He alleged that he received treatment from a doctor in Tijuana, and "after a little over two months symptoms started healing, bodily function [] returned...."
B. The Demurrer
In response to the complaint, Scripps filed a demurrer asserting (1) the complaint was barred by the statute of limitations as set forth in Code of Civil Procedure section 340.5, and (2) he had no standing to bring an action for "medical fraud" or unauthorized use of federally regulated medication.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
The demurrer was to be heard on September 4, 2009. On September 4, at Barnes's request, the court continued the hearing to October 16, 2009.
Barnes filed no opposition to the motion and on October 13, 2009, Scripps filed a notice of waiver of opposition. On October 16, 2009, the court continued the hearing to November 20, 2009. Barnes did not file any opposition, and Scripps again filed a notice of waiver of opposition.
On November 20, 2009, the court again continued the hearing until January 8, 2010. Barnes filed no opposition, and Scripps again filed a notice of waiver of opposition.
At the hearing on January 8, 2010, Barnes did not appear in court. The court sustained the demurrer without leave to amend: "[Scripps's] unopposed demurrer is sustained without leave to amend. The Complaint is barred by the applicable statute of limitations and plaintiff [Barnes] lacks standing to bring a claim for medical fraud or unauthorized use of federally regulated medications."
C. The Peremptory Challenges
Barnes's case was originally assigned to the Honorable Yuri Hofmann. On July 31, 2009, Scripps filed a peremptory challenge to Judge Hofmann. The challenge was granted and the case was reassigned to the Honorable Charles R. Hayes.
On October 26, 2009, after the hearing on Scripps's demurrer was continued for a second time, Barnes filed a peremptory challenge against Judge Hayes. It was denied as untimely.
DISCUSSION
I. THE DEMURRER
A. Failure To File Opposition
Because Barnes failed to file any opposition to the demurrer, the court was entitled to consider that lack of opposition to be an admission the motion was meritorious. (See Super. Ct. San Diego County, Local Rules, rule 3.2.1(c)(5) ["[F]ailure of the responding party to serve and file points and authorities within the time permitted without good cause may be considered by the court as an admission the motion is meritorious."].) Further, by failing to oppose the motion, Barnes has failed to preserve a challenge to the sustaining of the demurrer for appeal. (In re Carrie W. (2003) 110 Cal.App.4th 746, 755; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13.) This is particularly true in a case such as this where the court continued the hearing four times and Barnes still failed to file any opposition.
In Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, the plaintiff opposed the demurrer on the merits, but failed to request leave to amend. The court sustained the demurrer without leave to amend. The Court of Appeal held that even though no request for leave to amend was made to the trial court, the plaintiff could attempt to show for the first time on appeal that the complaint could be amended to state a valid claim. (Id. at p. 1072.) That case did not involve the situation we are presented with here, where Barnes failed to file any opposition to the demurrer.
Moreover, even if we were to reach the merits of this appeal, we would conclude the court did not err in sustaining Scripps's demurrer as Barnes's complaint is barred by the statute of limitations.
Scripps asserts we should dismiss the appeal because Barnes's opening brief was filed one day late. However, such a dismissal is only discretionary. (Cal. Rules of Court, rule 8.220.) Moreover, a request that an appeal be dismissed for failure to timely file a brief will be denied where the brief is already on file at the time the request is made. (Peak v. Nicholson (1943) 61 Cal.App.2d 355, 358-359.) Accordingly, we decline Scripps's request that we dismiss this appeal on this ground.
B. Merits
Section 340.5 provides in 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."
From the face of Barnes's complaint it is clear that he was aware of his alleged injuries on the date he was treated, June 15, 2007. Thus, the statute of limitations expired on June 15, 2008. This action was filed on June 12, 2009, and is therefore time-barred.
Barnes asserts that the statute of limitations should be tolled because he first mistakenly filed his action in the United States District Court for the Southern District of California, on June 12, 2008, and that court dismissed his case for a lack of jurisdiction on October 2, 2008. However, Barnes provides no evidence that he filed an action in federal court. Moreover, while the statute of limitations is tolled in some instances while a plaintiff pursues an action in federal court (see Addison v. California (1978) 21 Cal.3d 313, 319), such is not the case where the federal court is without jurisdiction. (See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 742, pp. 970-971.)
Further, such an action only tolls the limitations period "while the claim is pending [in federal court] and for a period of 30 days after it is dismissed...." (28 U.S.C. § 1367(d).) Thus, the action would have been tolled only for an additional five months, making the complaint due no later than March of 2009. Thus, the pendency of Barnes's federal action does not save his claims from the statute of limitations.
Barnes also asserts he could not have discovered, through reasonable diligence, his most serious injuries until he was treated in May 2009 at the Irvine Medical Center in Orange County, California, for radiation injury to the brain. However, Barnes did not raise this claim before the trial court and has thus forfeited the right to raise it on appeal. (In re Carrie W., supra, 110 Cal.App.4th at p. 755.) Further, the only "evidence" of this alleged treatment is an exhibit he attaches to his opening brief that states he was detained in May 2009 for an inpatient psychiatric hospitalization. It says nothing about treatment for radiation injury to the brain. Further, this exhibit is outside the record on appeal and we therefore may not consider it. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1174.)
Barnes last requests that we consider his "endless inquiries with Attorney's [sic] in this matter." However, Barnes does not explain the relevance of these purported inquiries to Scripps's statute of limitations defense.
The court did not err in sustaining Scripps's demurrer based upon the applicable statute of limitation.
II. PEREMPTORY CHALLENGE
Barnes also asserts that his peremptory challenge against Judge Hayes was improperly denied as untimely. This contention is unavailing.
Where a case is assigned to a judge for all purposes, i.e., in a "direct calendar" court such as the Superior Court of San Diego County, and the case is later reassigned to another judge, the peremptory challenge to the second judge "must be filed within 15 days of receiving notice of a change in the individual calendar judge assigned to the case." (Motion Picture & TV Fund Hosp. v. Superior Court (2001) 88 Cal.App.4th 488, 494.)
The record does not contain any formal notice of reassignment. However, Barnes was on notice at the latest when he was served with Scripps's demurrer on September 17, 2009, which on its face indicated the case was reassigned to Judge Hayes. He did not file his peremptory challenge against Judge Hayes until October 26, 2009, and it thus was untimely.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: McCONNELL, P. J.AARON, J.