Opinion
D071993
10-31-2018
EDUARDO FLORES, Plaintiff and Appellant, v. SHARP GROSSMONT HOSPITAL, Defendant and Respondent.
Eduardo Flores, in pro. per., for Plaintiff and Appellant. Lotz, Doggett & Rawers, Jeffrey S. Doggett and Patrick F. Higle for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00039735-CU-MM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Reversed and remanded with directions. Eduardo Flores, in pro. per., for Plaintiff and Appellant. Lotz, Doggett & Rawers, Jeffrey S. Doggett and Patrick F. Higle for Defendant and Respondent.
Eduardo Flores sued Sharp Grossmont Hospital (Sharp) seeking to recover for injuries suffered during a surgery. The court granted Sharp's motion for judgment on the pleadings, finding Flores's claims were untimely under the one-year limitations period for medical malpractice actions. (Code Civ. Proc., § 340.5.) We determine Flores met his appellate burden to show a reasonable possibility he can amend his complaint to show the limitations period was tolled during his claimed incapacity. (See § 352.) We thus reverse with directions. To satisfy his pleading burden on remand, Flores must allege facts (1) specifying the nature of Sharp's alleged wrongdoing and breach of duty owed to him; (2) describing the nature of his claimed incapacity and the time period he claims he was incapacitated; and (3) showing his claim was timely under applicable tolling principles.
All further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Original Complaint
On November 14, 2016, Flores (representing himself) filed a superior court complaint against Sharp, alleging a single cause of action of "Medical Malpractice—Wrong diagnoses." In an attachment, Flores alleged the following:
Flores also named Dr. Marc Kobernick, but Dr. Kobernick has never appeared in the action and is not part of this appeal.
"On 6-25-2008 I went to the [Kaiser] emergency room in La Mesa in which they did an EKG cardiogram and they told me I was having a heart attack in which they sent me to the Sharp Grossmont Hospital ER. At that time they did [a] catheterization exam so they can see my heart[']s condition and other various exams. Just a few minutes have passed and Dr. came in with some papers for me to sign and then he said to me he was going to do a surgery. I then asked him what kind of surgery and he said he was going to open up my chest in which I refused. He then said to me that I can die any minute and I still refused. After that I don't remember what happened. I've gone to the hospital in many occasions to ask for the report of the
ambulance, catherization, and the final report of the Dr. and it has been denied to me.Flores signed and dated this statement on October 11, 2016.
"On 9-11-2011 I had a head trauma caused by a robbery . . . in which it caused for me to get hematomas in my head which should have been removed. On 4-25-2014 I went to the clinic San Diego Cardiac Center to have an evaluation before surgery and I told the Dr. Hoagland that Sharp Grossmont Hospital had the results of the AKG cardiogram and a catheterization that had been done in 2008 and they didn't find anything. And because of that they gave me the wrong diagnostic so I decided to get the surgery [during] which I died twice, with me needing to be revived each time. On 6-9-14 that's the day I went into surgery. I went to surgery because I was diagnosed on low risk for cardiac complications, despite my history of heart trouble. (please see exhibit page[s] 1-3)
"The diagnos[i]s was wrong.
"Sharp Grossmont Hospital doesn't want to help me and they don't want to take responsibility and they refuse to give me any information."
Flores attached several documents to the complaint.
First, he attached a notice by neurosurgeon Dr. Scott Leary, stating surgery was scheduled on June 9, 2014 at Scripps Memorial Hospital (the notice does not identify the patient, but we assume the patient is Flores).
Second, he attached a three-page report from cardiologist Dr. Peter Hoagland, on San Diego Cardiac Center letterhead. The report states that Dr. Hoagland saw Flores on April 25, 2014 for "surgical clearance" and "palpitations and [an] abnormal stress test." Dr. Hoagland noted that Flores had certain abnormal results in tests (e.g., treadmill, EKG) and certain permanent conditions (e.g., chest discomfort, palpitations), but stated that he "did not uncover any signifi[c]ant heart disease." In the final section of the report (titled Plan Discussion), Dr. Hoagland opined that Flores's "risk of a cardiac complication from neurosur[g]ery is low. No further cardiology follow up is planned unless he gets worse."
Third, Flores attached a copy of graphs allegedly showing results from a test conducted by Sharp on June 25, 2008. Marked on the first graph is a note stating "Abnormal ECG 'Unconfirmed.' "
Fourth, he attached documents showing that on February 24, 2014, he requested Sharp to provide records of his June 25, 2008 treatment for his heart problems. Specifically, the request stated "I want final report and what was done in [Sharp's] operating room when I refused the surgery."
Fifth, he attached a witness subpoena directing him to appear in court in June 2012 pertaining to a criminal action.
First Amended Complaint
Three days after filing the original complaint, Flores filed an amended complaint against the same defendants, adding "Fail[ure] to access to my Medical Records" as a cause of action (in addition to medical malpractice). Although Flores did not physically attach the documents included with his original complaint, it appears he intended to do so (by stating "plesce seea attachment" [sic]). He did not add any new factual allegations in this amended complaint.
Motion for Judgment on the Pleadings
After filing an answer, Sharp moved for judgment on the pleadings, arguing the amended complaint was untimely under the one-year period applicable to medical malpractice actions. (See § 340.5.) Relying on Flores's allegations in his original complaint, Sharp maintained that the cause of action accrued no later than Flores's surgery date (June 9, 2014) because Flores alleged that during that surgery, he had severe complications allegedly resulting from his heart condition that had been allegedly misdiagnosed by Sharp. Sharp argued: "Given that the date of accrual of Plaintiff's cause of action was June 9, 2014, Plaintiff had one year from that date to file his medical malpractice lawsuit under [section] 340.5," and by waiting more than two years (November 2016), Flores "did not file his suit timely."
In opposing the motion, Flores clarified that his malpractice claim was based on his decision to undergo his June 2014 surgery "thinking that [he] was safe," but Dr. Hoagland "gave me the wrong diagnostics." He explained that in 2008, he had been told by emergency room doctors that one of his heart valves was failing, but he refused surgery. He said that on April 24, 2014, "I received the result from Doctor Hoagland (Cardiologist) and he requested an AKG and a catherization to Sharp . . . that was done in 2008, and he found nothing, so he gave me the wrong diagnostics on April 24, 2014 Plan Discussion. Complication from surgery is low. So I took the surgery on June 9th, 2014 with Dr. Leary thinking that I was safe, and because of that surgery I died twice of a stroke, and respiratory failure and a lot of issues that resulted from that, which are irrever[sible]."
Flores also said that in "2014, 2015 and half 2016, I lost my memory, and I was in recuperation therapy." He said that in early December 2016, he went to Sharp to obtain a copy of his medical records, but the administration "called the security on me" and "escorted me all the way to the parking lot." He also said that he went back to Sharp's medical records office several days later, but the office refused to give him his medical records. Flores said he was seeking to "find out the truth" with respect to what happened to him in 2008 regarding his heart condition.
In reply, Sharp noted that it was difficult to tell from Flores's opposition whether he was alleging negligence by Sharp or by Dr. Hoagland (who was not a defendant or alleged to be Sharp's employee or agent) with respect to the alleged misdiagnosis. But Sharp argued that even assuming Flores had alleged a valid malpractice claim against Sharp, the complaint—filed more than 29 months after his June 2014 surgery—was untimely under section 340.5. In response to Flores's assertion that he was unable to obtain his Sharp medical records, Sharp stated that the fact Flores "waited until December 2016 to attempt to gather his medical records does not save his claim from the statute of limitations."
After an unreported hearing, the court granted Sharp's motion for judgment on the pleadings. Viewing the amended complaint together with the original complaint, the court's written order stated: "The most recent date pled in the complaint is June 9, 2014. . . . According to the complaint, on June 9, 2014, plaintiff underwent a surgical procedure where he 'died twice, with me needing to be revived each time', and plaintiff underwent the surgical procedure due to Sharp's . . . diagnosis that he 'was on low risk for cardiac complications' which was 'wrong.' [¶] As such, the medical malpractice claim advanced in plaintiff's amended complaint accrued no later than June 9, 2014, and he had 1 year from that date to file his medical malpractice lawsuit under . . . section 340.5. June 9, 2014 is the latest date that plaintiff discovered, or should have discovered through reasonable diligence, that Sharp's . . . diagnosis was incorrect. The complaint was filed more than 2 years later, on November 14, 2016. . . . Plaintiff failed to file a timely lawsuit." The court also denied Flores's request for leave to amend, stating Flores "has the burden to show in what manner he can amend the amended complaint and how the amendment will change the legal effect of the pleading. . . . He makes no effort to comply with this requirement. . . . "
On Flores's cause of action for failure to "access" his medical records, the court stated that Flores "provides no authority that this is a legally cognizable claim," and "[d]efense counsel, who represents only physicians, hospitals and medical groups, assures the court there is no such legal claim." The court also noted that defense counsel represented that he "undertook to conduct a thorough search for records not already turned over to plaintiff."
The court also stated it had granted Sharp's motion to quash all of Flores's deposition subpoenas, after considering the issues at a hearing several days earlier.
The court later signed a settled statement drafted by Sharp, essentially reiterating the contents of the court's minute order granting the motion. The settled statement did not contain information as to what occurred during the oral hearing on the motion.
In his appeal, Flores challenges the court's order granting Sharp's motion for judgment on the pleadings and the court's rulings on the deposition subpoenas. The record on appeal consists of a clerk's transcript, the settled statement, numerous documents attached to Flores's augmentation requests (see part III below), and documents from the superior court file, which this court added to the record on its own motion (after providing notice to both parties).
DISCUSSION
I. Judgment on the Pleadings
A. Governing Standards
A defendant is entitled to a judgment on the pleadings when the complaint fails to allege facts sufficient to state a cause of action. (§ 438, subd. (c)(3)(B)(ii); People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777 (Harris).) "A pleading which on its face is barred by the statute of limitations does not state a viable cause of action and is subject to judgment on the pleadings." (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440.)
We independently review a court's ruling on the motion, and apply the same standards as on a demurrer review. (Harris, supra, 59 Cal.4th at p. 777.) We accept as true all properly alleged material facts, but not deductions, contentions, or conclusions of law or fact. (Ibid.) We additionally consider matters subject to judicial notice, materials attached to the complaint, and evidence that the court considered without objection. (Estate of Dayan (2016) 5 Cal.App.5th 29, 40; Stone Street Capital, LLC v. California State Lottery Com. (2008) 165 Cal.App.4th 109, 116.)
In reviewing the court's refusal to permit an amendment, we are governed by an abuse-of-discretion standard. (Monsanto Co. v. Office of Environmental Health Hazard Assessment (2018) 22 Cal.App.5th 534, 544-545.) The court abuses its discretion if there is a reasonable possibility an amendment would cure the defects. (Ibid.; Minnick v. Automotive Creations, Inc. (2017) 13 Cal.App.5th 1000, 1004.) To show an abuse of discretion, the "appellant has the burden to identify specific facts showing the complaint can be amended to state a viable cause of action." (Minnick, at p. 1004.) "An appellant can meet this burden by identifying new facts or theories on appeal." (Ibid.; § 472c, subd. (a); Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044 (Sanowicz); Connerly v. State v. California (2014) 229 Cal.App.4th 457, 460-461 (Connerly); see City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746 (City of Stockton).)
B. Medical Malpractice Claim
1. Liability
In a medical malpractice action, the plaintiff must establish: (1) the duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the physician's negligence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
In the court below, Sharp noted it appeared to be unclear whether Flores was asserting that Sharp was negligent or whether Dr. Hoagland (who was not a defendant or alleged to be Sharp's employee or agent) was negligent. We agree there is uncertainty as to the precise nature of Sharp's alleged negligence. But Sharp did not move for judgment on the pleadings on this ground, nor did it argue or make any suggestion in its appellate briefs that Flores's pleading deficiencies on Sharp's liability for the alleged malpractice is an alternate basis for the judgment on the pleadings. Accordingly, we assume for purposes of this appeal only that Flores has pled the elements of a viable medical malpractice claim against Sharp.
2. Statute of Limitations
Section 340.5 sets forth the deadline for filing a medical malpractice action. It states in relevant 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 . . . ." (Italics added.)
Under this statute, "the patient must bring his suit within one year after he discovers, or should have discovered, his 'injury.' " (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.) "Possession of 'presumptive' as well as 'actual' knowledge will commence the running of the statute. The applicable principle has been expressed as follows: 'when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation . . . the statute commences to run.' " (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101.) Therefore, "when the patient's 'reasonably founded suspicions [have been aroused],' and she has actually 'become alerted to the necessity for investigation and pursuit of her remedies,' the one-year period for suit begins." (Gutierrez, at p. 897; accord, Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 (Fox).)
The amended complaint on its face shows that Flores's medical malpractice cause of action was untimely. Flores alleged that Sharp committed professional negligence by failing to accurately diagnose his heart condition (or provide the appropriate documents to Dr. Hoagland to permit a proper diagnosis), and Flores was thereby injured when he underwent the "wrong" neurosurgery on June 9, 2014. On that date (June 9, 2014), Flores claims he "died twice," and suffered a stroke and other negative side effects, including "respiratory failure." At that point, Flores's injuries from the claimed malpractice occurred and were apparent, and thus his cause of action began to accrue. Because he waited more than two years to file his action, the court properly found the claim—as alleged—was time-barred.
On appeal, Flores requests the opportunity to amend his claim to allege facts showing tolling or that he did not reasonably discover the cause of action until late 2016. Sharp counters that Flores did not raise these arguments in the trial court, and therefore he forfeited his right to raise them on appeal.
Sharp correctly states the general rule. (See Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 920, fn. 3; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [" ' " 'fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal' " ' "].) But this rule does not apply to the appellate review of an order denying a plaintiff leave to amend a pleading. (City of Stockton, supra 42 Cal.4th at p. 747; Sanowicz, supra, 234 Cal.App.4th at p. 1044; Connerly, supra, 229 Cal.App.4th at p. 460-461.) "Contrary to long-standing rules generally precluding a party from changing the theory of the case on appeal [citations], a plaintiff may propose new facts or theories to show the complaint can be amended to state a cause of action, thereby showing the trial court 'abused its discretion' (§ 472c, subd. (a)) in not granting leave to amend. [To prevail on this argument,] [t]he plaintiff 'must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.' " (Connerly, at p. 460, fn. omitted; accord Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153-1154; Dey v. Continental Central Credit (2008) 170 Cal.App.4th 721, 731.)
On appeal, Flores argues he should be given the opportunity to amend his complaint to allege facts showing the statute of limitations had been tolled by his "incapacity" in 2014 through 2016. In his written papers below, Flores did not specifically ask to amend on this ground, but did note that "[o]n 2014 and 2015 and half 2016, I lost my memory, and I was in recuperation therapy."
In his appellate brief, Flores asserts that "[t]he statu[t]e of limitations did not . . . begin to run until [he] had learned to talk again and care for daily bodily functions and how to walk, which was ongoing until the end of 2016." He says that after the June 9, 2014 surgery, he "lost the ability to walk, speak and to acknowledge the events in his life." He states that he "was incapacitated for almost three years up to and including the time he filed his complaint," and claims that he "had to relearn how to walk and speak." He argues that the "trial court judge should have made a determination of whether the statute of limitations was tolled by [his] sever[e] cognitive impairments that were caused by the surgery that is related to the malpractice claim."
Under section 352, a limitations accrual is tolled during a person's incapacity. Section 352, subdivision (a) states: "If a person entitled to bring an action . . . is, at the time the cause of action accrued either under the age of majority or lacking the legal capacity to make decisions, the time of the disability is not part of the time limited for the commencement of the action." For purposes of this tolling provision, a plaintiff lacks capacity if he or she is " 'incapable of caring for his [or her] property or transacting business or understanding the nature or effects of his [or her] acts . . . .' " (Alcott Rehab. Hosp. v. Superior Court (2001) 93 Cal.App.4th 94, 101 (Alcott); Feeley v. S. Pac. Transp. Co. (1991) 234 Cal.App.3d 949, 951-953; Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562, 571; Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 231.) The tolling continues until the plaintiff is restored to competency. (Feeley, at p. 952.)
These courts were interpreting the prior version of the statute that contained the word "insane" instead of "legal incapacity." But this wording change was a technical amendment and not intended to alter the statutory meaning. (See Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1847 (2013-2014 Reg. Sess.) as amended Apr. 22, 2014.) --------
Section 352's tolling provision applies to extend section 340.5's one-year limitations period applicable to medical malpractice actions. (Alcott, supra, 93 Cal.App.4th at pp. 99-106; see Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928, 931-935 (Belton); Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 642-644 (Kaplan).) Although this court suggested in dicta a different rule almost 20 years ago in Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 392 (Bennett), we are satisfied based on current authority that section 352 tolling can apply to extend the one-year limitations rule in section 340.5.
In Bennett, we relied on Fogarty v. Superior Court (1981) 117 Cal.App.3d 316. (Bennett, supra, 75 Cal.App.4th at p. 392.) However, Fogarty interpreted only that portion of section 340.5 pertaining to the three-year period: "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) presence of a foreign body . . . ." (§ 340.5; see Fogarty, at p. 319.) As explained by our high court, the " '[i]n no event' " language interpreted in Fogarty applies only to the three-year limitation period and not the one-year tolling period contained in section 340.5. (Belton, supra, 20 Cal.4th at p. 931; see Alcott, supra, 93 Cal.App.4th at p. 105; Kaplan, supra, 162 Cal.App.4th at pp. 642-644.) Accordingly, courts following Belton have held tolling statutes, including the incompetency tolling provision in section 352, apply in health care cases to toll the one-year, but not the three-year, tolling rule. (Alcott, at pp. 101-106; Kaplan, at pp. 642-644.) Thus, section 352 "compels tolling of the one-year limitation period . . . [while] a plaintiff is" incapacitated, but no longer than the three-year outside limit. (Alcott, at p. 104.)
Flores's allegations support that he filed the complaint in November 2016, within three years of the claimed injuries (June 2014), and thus section 352 potentially applies to extend the one-year period set forth in section 340.5. Further, based on Flores's assertions on appeal, he may be able to allege facts triggering section 352's tolling. He claims the surgery left him incompetent without basic physical or cognitive skills through the middle or end of 2016. If Flores can in good faith allege specific facts showing his condition precluded him from caring for his property and transacting business affairs, and/or understanding the nature of his acts, until he filed his complaint, he may be able to avoid a dismissal at the pleading stage. We thus remand to provide Flores with the opportunity to allege facts showing tolling under section 352.
This determination comports with our strong policies favoring liberal amendment of pleadings, disposition of cases on their substantial merits, and resolution of all disputed matters between the parties. (See Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158 ["California courts have 'a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.' "]; Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530 ["it is a rare case in which 'a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case' "].)
For purposes of guidance on remand, we recognize Flores's pleadings and written submissions are unclear as to the precise conduct by Sharp that is alleged to be negligent, particularly whether the alleged negligence occurred in 2008 or 2014 or 2016, and when Flores allegedly suffered injury from this negligence. Thus, to satisfy his pleading burden on remand, Flores has the obligation to additionally allege the specific wrongdoing allegedly committed by Sharp and when Flores was allegedly injured by this wrongdoing.
We also briefly address Flores's alternate argument that he should be permitted to amend to allege that the statute of limitations was tolled by Sharp's "fraudulent concealment of [his] medical records."
A statute of limitations on a medical malpractice action is tolled if the defendant fraudulently concealed facts that would have led the plaintiff to discover a potential cause of action. (§ 340.5.) But once the plaintiff has inquiry notice of the cause of action, the tolling ceases even if the defendant has continued to conceal relevant facts. (See Barker v. Brown & Williamson Tobacco Corp. (2001) 88 Cal.App.4th 42, 49-51.) At this point, the plaintiff's failure to pursue his or her claim can no longer be attributed to defendant's fraudulent acts, and the statute is no longer tolled. (Ibid.; see Doe v. Roman Catholic Bishop of Sacramento (2010) 189 Cal.App.4th 1423, 1432; Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453, 1460; Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, 130-131.)
Flores states in his briefs that he "found out about the negligence and misdiagnoses when he requested his medical records from San Diego Cardiac Center" in November 2016. Assuming the truth of this statement, it negates Flores's assertion that Sharp's alleged fraudulent concealment of his medical records precluded him from making an earlier discovery of the negligence (assuming his incompetency theory is not valid). Flores has not stated, nor is there any suggestion in the materials below, that the San Diego Cardiac Center withheld documents from him or refused to provide him with the cardiac report from his April 2014 visit. The fact that Flores admits he could have obtained the information necessary to learn about the negligence by reviewing the April 2014 cardiologist's report demonstrates he was on inquiry notice after that visit when he underwent the surgery. (See Fox, supra, 35 Cal.4th at pp. 807-808 [a plaintiff is "charged with presumptive knowledge of an injury" by having " ' " 'the opportunity to obtain knowledge from sources open to [its] investigation' " ' "].)
Accordingly, although Flores has met his appellate burden to establish a basis for an amendment for tolling on an incompetency theory, he did not meet this burden on a fraudulent-concealment theory.
C. Failure to Permit Access to Medical Records
In his amended complaint, Flores referred to a cause of action for "Failer [sic] to access to my medical records." It is unclear from the pleadings whether this is a separate cause of action or whether it is part of his medical malpractice cause of action. There are no specific factual allegations asserted as a basis for this claim in the pleading.
Although Sharp did not specifically include this claim in moving for judgment on the pleadings, a trial court has the authority to grant a judgment on the pleadings on its own motion. (§ 438, subd. (b)(2); see Camacho v Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1396.) The court here did so, concluding this medical-records claim did not state a viable cause of action under California law.
Because Flores does not specifically challenge this ruling on appeal and/or provide any factual or legal basis supporting this cause of action, we find no error in the court's conclusion. (See Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656.) "[T]he trial court's judgment is presumed to be correct, and the appellant has the burden to prove otherwise by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited." (Id. at p. 655.) In the context of an appeal following a dismissal based on pleading deficiencies, this means the appellant must not only explain the legal basis for the cause of action but that he or she must also cite the particular facts alleged in the complaint which, if found to be true, would support the cause of action.
II. Deposition Subpoenas
In his appellate submissions, Flores challenges the court's rulings granting Sharp's motion to quash his deposition subpoenas seeking to depose various Sharp employees and third party witnesses. Because Flores does not provide valid legal grounds to establish trial court error with respect to the subpoenas, we find the challenges to be without merit.
In reaching this conclusion, we note that Sharp's objections to these subpoenas were made primarily on procedural grounds. If the case moves past the pleading stage, Flores will have the full opportunity to conduct discovery, including depositions, upon compliance with statutes and court rules governing such discovery requests.
We also note that Flores's focus on the deposition subpoenas appears to reflect a misunderstanding of the nature of a motion for judgment on the pleadings. Each of Flores's subpoenas requested the witness appear at the hearing on the motion for judgment on the pleadings. At various points in his appellate brief, Flores claims it is unfair the court dismissed his action before allowing him to present evidence.
However, in ruling on a motion for judgment on the pleadings, the court does not evaluate whether the parties have evidence to support their claims. The court considers only whether there is a legal basis for the plaintiff's claims assuming the facts alleged in his or her pleadings are true. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100.) If the alleged facts would support a cause of action under a legal theory, the motion for judgment on the pleadings must be denied and the matter then proceeds to the evidentiary phase of the litigation. However, if the factual allegations would not support a viable cause of action even if the plaintiff could prove those facts, the plaintiff could not prevail at trial as a matter of law. In this circumstance, a trial would be unnecessary and the case would be properly dismissed at the pleading stage.
III. Additional Arguments
Flores argues in various portions of his appellate submissions that he was not given the opportunity to present oral argument in opposition to Sharp's motions. The argument is unsupported by the appellate record. In its order granting the motion for judgment on the pleadings, the court specifically stated that the "court heard extensive argument from both sides" on the issues before it. Additionally, the court's order and earlier minute order state that both parties were present at the hearing on Sharp's ex parte application to quash the subpoenas. We are bound by these statements absent a showing they were erroneous. There is no such showing.
During the appellate briefing process, Flores filed numerous requests to augment the record. The presiding justice ruled on several of these requests, and we adhere to those rulings. With respect to the requests deferred to the merits panel, we grant each of these requests, but consider the evidence only to the extent it is relevant and admissible to the issues before us. We note Flores seeks primarily to add documents that pertain to his deposition subpoenas. We have reviewed these documents, but conclude they do not show the court erred in granting Sharp's motion to quash the subpoenas.
DISPOSITION
The court is ordered to vacate the order and judgment granting Sharp's motion for judgment on the pleadings, and to enter a new order allowing Flores to amend the complaint to add a tolling theory based on his claimed incompetency under Code of Civil Procedure section 352 and to allege facts identifying Sharp's alleged wrongdoing and when he was allegedly injured by this wrongdoing. The order quashing the deposition subpoenas is affirmed. Respondent to bear appellant's costs on appeal.
HALLER, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.