Opinion
D082198
02-20-2024
EMILIO GUEVARA, Plaintiff and Appellant, v. SHERLY SOHAL et al., Defendants and Respondents
The Reyes Law Firm and Luis F. Reyes for Plaintiff and Appellant. Brian P. Kamel & Associates, Brian P. Kamel, and Yee Lam for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside, Super. Ct. No. RIC2004128, Chad W. Firetag, Judge.
The Reyes Law Firm and Luis F. Reyes for Plaintiff and Appellant.
Brian P. Kamel & Associates, Brian P. Kamel, and Yee Lam for Defendants and Respondents.
McCONNELL, P. J.
I
INTRODUCTION
Plaintiff Emilio Guevara appeals from the entry of judgment after a grant of summary judgment in favor of defendants Dr. Sherly Sohal, D.D.S., and Sohal and Pham Dental Corp. (hereafter, Perris Modern Dentistry).
Guevara argues the trial court erred in finding the one-year statute of limitations set forth in Code of Civil Procedure section 340.5 barred his dental malpractice lawsuit against the defendants as a matter of law. We agree. Therefore, we reverse the judgment.
Further undesignated statutory references are to the Code of Civil Procedure.
II
BACKGROUND
Because this is an appeal from a grant of summary judgment in favor of the defendants, "our account of the facts is presented in the light most favorable to the nonmoving party below, in this case [Guevara], and assumes that, for purposes of our analysis, [Guevara's] version of all disputed facts is the correct one." (Birchstein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999.)
A. Factual Background
On November 3, 2017, Guevara went to Perris Modern Dentistry to have a crown on one of his teeth recemented. There, he was treated by Dr. Sohal. Dr. Sohal examined Guevara and determined his existing crowns were temporary crowns that were in need of replacement. She also observed that his prior dental care provider over-prepared his teeth and his teeth had poor margins and retention. Dr. Sohal took photographs and radiographs of his teeth and informed him of the need to replace his temporary crowns with permanent ones. She also advised him his teeth had a guarded prognosis- i.e., a less than 50% chance they would respond successfully to treatment- given their over-prepared condition and their inadequate margins and retention.
Guevara presented with inflamed gums at his initial appointment as well. According to Guevara's patient charts, Dr. Sohal diagnosed him with moderate gum inflammation and Type II periodontal disease-essentially, moderate periodontal disease. Dr. Sohal treated Guevara's gum inflammation with an antiseptic oral rinse and advised him he needed to improve his oral hygiene. She also removed Guevara's temporary crowns, took impressions for permanent crowns, and placed new temporary crowns over his teeth. Dr. Sohal implanted the permanent crowns during two followup appointments on November 8 and November 15, 2017.
Periodontal means, "Pertaining to, or involving, the tissue surrounding a tooth." (J.E. Schmidt, Attorneys' Dictionary of Medicine (2023) Periodontal.)
On February 12, 2018, Guevara returned to Perris Modern Dentistry complaining of tender and bleeding gums. On that date, he was diagnosed with chronic moderate to severe periodontal disease. A dental hygienist recommended laser treatment to heal Guevara's gums, but he declined the recommendation and stated that he wished to speak with his insurance carrier. In a follow-up appointment, Dr. Sohal advised Guevara he had poor oral hygiene and needed treatment for his periodontal issues, which threatened the remainder of his dental treatment.
Guevara ultimately underwent subgingival scaling and root planing procedures to treat his periodontal disease on April 4 and April 6, 2018. However, he continued to exhibit bleeding gums and inflamed gum tissue over the course of three follow-up appointments. During one of those appointments, the dental hygienist "noted that [Guevara] had poor oral hygiene and heavy bleeding around his gums due to his poor oral hygiene."
On October 19, 2018, Guevara returned to Perris Modern Dentistry and asked Dr. Sohal to remove the permanent crown she had implanted on one of his teeth because the tooth was causing him pain. According to Guevara's charts, Dr. Sohal saw "nothing wrong" with the crown, but she nonetheless removed it. She reminded him he had poor oral hygiene, his gums were still red and inflamed, and he needed to brush and floss his teeth more often.
At a follow-up appointment a few days later, a different dentist at Perris Modern Dentistry cemented a temporary crown on the tooth that had caused Guevara pain. However, the crown broke soon after and the dentist who placed the crown determined the tooth underneath the crown was fractured, could not be saved, and required extraction.
On October 26, 2018, Guevara came back to Perris Modern Dentistry for what would turn out to be his last appointment there. Guevara reported he was experiencing pain and facial swelling from a gum infection. However, Dr. Sohal refused to treat him. The parties present differing accounts as to why she refused treatment. In a declaration filed with the defendants' motion for summary judgment, Dr. Sohal averred that Guevara asked for a bridge to be placed over one of his teeth and she told him it would not be a good option due to his periodontal issues. She stated Guevara "became rude and disrespectful and was asked to leave the office due to his behavior." Guevara's patient charts tell the same story. Guevara, on the other hand, testified in a deposition that, "simply they said no"-"[t]hey didn't want to see [him]," so he "didn't go back to that office."
After he was turned away from Perris Modern Dentistry, Guevara sought same-day emergency treatment for his pain and swelling at Riverside Medical Clinic. According to Guevara, medical professionals there diagnosed him with a "strong infection" and prescribed him antibiotics.
Guevara sought further treatment from another dental care provider, Borrego Health, which diagnosed him with moderate to severe periodontal disease on February 4, 2019.
B. Procedural Background
On May 19, 2020, Guevara served Perris Modern Dentistry and Dr. Sohal by mail with a notice of intention to file a negligence action.
On October 14, 2020, Guevara initiated the present lawsuit against the defendants. After demurrers were filed and sustained, the operative second amended complaint asserted causes of action for dental malpractice and lack of informed consent. The complaint alleged the defendants improperly placed permanent crowns on his teeth before treating his periodontal disease (i.e., improper sequencing of treatment) and they placed anatomically incorrect crowns on his teeth. The complaint alleged the defendants also failed to obtain Guevara's informed consent to place the permanent crowns because they did not disclose to him the high probability the treatment would fail due to his periodontal disease. According to the complaint, the defendants' misconduct caused Guevara to suffer from "additional inflammation" and "persistent pain and bleeding [in his] mouth and [around his] teeth," and to incur out-of-pocket medical costs.
On May 20, 2022, the defendants filed and personally served Guevara with a motion for summary judgment. They asserted: (1) the causes of action were barred by the one-year statute of limitations set forth in section 340.5, because Guevara knew of his injury-or through the use of reasonable diligence should have discovered his injury-by October 26, 2018, but he did not file suit until October 14, 2020; (2) the undisputed facts established the defendants' conduct did not fall below the applicable standard of care and did not cause Guevara's injuries; and (3) the undisputed facts showed Guevara consented to placement of the permanent crowns and a prudent person in his position would have consented to the dental treatment he received.
On July 25, 2022, Guevara opposed the motion for summary judgment. He argued his causes of action were timely because he did not know about his injury-and could not have known about the injury-on October 26, 2018, the last date he went to Perris Modern Dentistry. Further, he asserted genuine issues of material fact existed as to whether the defendants' conduct fell below the standard of care, whether their conduct injured him, and whether he gave his informed consent for treatment.
On August 4, 2022, the defendants filed a reply in support of their motion for summary judgment.
On August 9, 2022, the court held the summary judgment hearing and granted summary judgment based on the defendants' statute of limitations defense. The court found both that Guevara subjectively knew of his injury and its cause-and that an objectively reasonable person in Guevara's position would have known of the injury and its cause-by no later than October 26, 2018. Therefore, Guevara's lawsuit-filed nearly two years later-was barred by the one-year statute of limitations. The court did not address the defendants' other summary judgment arguments. Guevara timely appealed the ensuing judgment.
III DISCUSSION
A. Legal Principles
The moving" 'defendant has the initial burden on summary judgment to show that undisputed facts establish an affirmative defense. [Citation.] Once the defendant meets that burden, the burden shifts to the plaintiff to show a triable issue of material fact regarding the defense. [Citation.] We review the evidence in the light most favorable to the [nonmoving] plaintiff. [Citation.] Although application of the statute of limitations is normally a question of fact, the question becomes one of law when the evidence is susceptible of only one reasonable conclusion.'" (Vera v. REL-BC, LLC (2021) 66 Cal.App.5th 57, 64 (Vera), quoting Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 778; see Brewer v. Remington (2020) 46 Cal.App.5th 14, 28 (Brewer) [whether a claim is barred by the statute of limitations is" 'normally a question of fact.' ... 'However, whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law.' "].)
" 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.]" 'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'" '" (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1249-1250; see Vera,, supra, 66 Cal.App.5th at p. 64 [" 'We review the grant of summary judgment de novo and decide independently whether the parties have met their burdens and whether there are triable issues of material fact.' "].)
B. A Genuine Issue of Fact Exists Concerning Whether the Action is Timely
Guevara contends the trial court erred when it granted summary judgment for the defense because a genuine issue of material fact exists concerning whether his lawsuit is timely under section 340.5. For reasons we shall explain, we agree with Guevara.
1. Applicable Limitation Period
"Statutes of limitations 'protect defendants from the stale claims of dilatory plaintiffs' by' "prescrib[ing] the periods beyond which" a plaintiff may not bring a cause of action.' [Citation.] 'The statute of limitations operates in an action as an affirmative defense.'" (Kernan v. Regents of University of California (2022) 83 Cal.App.5th 675, 680 (Kernan).)
Both sides to this appeal agree Guevara's causes of action are subject to the statute of limitations codified in section 340.5. Section 340.5, a provision of the Medical Injury Compensation Reform Act of 1975 (MICRA), provides in relevant part as follows, "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." (§ 340.5.) Under section 340.5, the earlier of two possible limitation periods will apply-(1) three years from the date of the injury; or (2) one year from the date the plaintiff subjectively discovers-or an objectively reasonable person would have discovered-the injury. "[T]he term 'injury,' as used in section 340.5, means both 'a person's physical condition and its "negligent cause." '" (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.)
"Under the one-year limitation period of section 340.5, the plaintiff must bring suit within one year after he or she discovers, or should have discovered, his or her injury. However, a plaintiff need not be aware of either the specific facts or the actual negligent cause of the injury. [Citation.] If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated. [Citation.] When this occurs, the 'patient is charged with "presumptive" knowledge of his negligent injury ....'" (Brewer, supra, 46 Cal.App.5th at p. 24; see Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290 ["The one-year limitation period of section 340.5 is a codification of the discovery rule, under which a cause of action accrues when the plaintiff is aware, or reasonably should be aware, of 'injury,' a term of art which means 'both the negligent cause and the damaging effect of the alleged wrongful act.' "].)
The parties do not dispute that Guevara's lawsuit would be timely if the applicable limitation period is three years, measured from the date of the injury. They also appear to agree that the lawsuit would be untimely if the one-year limitation period applies and began running on October 26, 2018- the last date Guevara visited Perris Modern Dentistry. Thus, our task is to determine whether, as a matter of law, Guevara subjectively knew of his injury as of October 26, 2018, or alternatively, whether a reasonable person in Guevara's position would have known of the injury as of that date.
2. Subjective Prong
The trial court found, as a matter of law, that Guevara subjectively knew of his injury and suspected the defendants of wrongdoing by October 26, 2018, the date he last sought treatment from Perris Modern Dentistry. Several factors compel us to conclude otherwise.
First, although evidence was submitted tending to show that Guevara's periodontal disease and its side effects (e.g., pain, inflammation, and bleeding) persisted-and perhaps even worsened-over the course of his relationship with Perris Modern Dentistry, there was also evidence that the defendants repeatedly attributed Guevara's condition to his actions, as opposed to their own negligence. Specifically, Dr. Sohal submitted a declaration in which she averred that she told Guevara during at least three appointments-including his first appointment-that he had poor oral hygiene and needed to brush and floss his teeth more often. Moreover, according to Dr. Sohal's declaration and Guevara's patient charts, the dental hygienist who treated Guevara during one of his periodontal maintenance appointments expressly "noted that he had poor oral hygiene and heavy bleeding around his gums due to his poor oral hygiene." (Italics added.) From this evidence, a rational fact finder could conclude that Guevara believed or suspected his poor oral hygiene-rather than the defendants' negligence or wrongdoing-caused his continued and/or aggravated periodontal disease throughout the course of his treatment, up to and including the date of his last visit with Perris Modern Dentistry.
Second, Guevara returned to Perris Modern Dentistry, time and again, between November 3, 2017, and October 26, 2018-even as his periodontal disease persisted. According to Dr. Sohal's declaration and Guevara's patient charts, he even sought treatment from the defendants on October 26, 2018, the date the defendants would have us conclude that he suspected them of wrongdoing. "A reasonable trier of fact could infer from these actions that [Guevara] continued to trust the [defendants] even after learning of [his aggravated periodontal disease], undermining defendant[s'] contention that [Guevara] subjectively suspected" the defendants of wrongdoing. (Kernan, supra, 83 Cal.App.5th at p. 683.)
Third, there was evidence that Perris Modern Dentistry unilaterally terminated its relationship with Guevara on October 26, 2018, instead of Guevara ending the relationship with Perris Modern Dentistry (because, for example, he suspected the defendants of negligent or wrongful conduct). In Dr. Sohal's declaration, she averred that Guevara returned to Perris Modern Dentistry on October 26, 2018, and she treated him on that date. According to Dr. Sohal, Guevara "wanted to have a bridge placed" over an area in his mouth that had a fractured tooth in it, but she "informed him that given his periodontal issues, a bridge would not be a good option." Dr. Sohal stated that Guevara became "rude and disrespectful," and he "was asked to leave the office due to his behavior." (Italics added.) Guevara's patient charts similarly indicate that the defendants-not Guevara-terminated the parties' relationship. In a chart entry dated October 26, 2018, Dr. Sohal stated, "[P]t wants [bridge.] informed pt that [bridge] is not good option .... pt is being disrespectful to manager and doctor. pt advised to leave the office[.] pt is threatening not to leave the office and call police if we need to. [¶] pt said he will sue us." (Italics added.)
From this evidence, a reasonable fact finder could conclude Guevara did not end his relationship with the defendants based on any knowledge or suspicion of their wrongdoing or negligence; rather, the defendants ended their relationship with Guevara based on his rude and disrespectful behavior towards Dr. Sohal and her staff. Because a rational fact finder could conclude the termination of the parties' relationship had nothing to do with Guevara knowing or suspecting defendants' wrongdoing or negligence, the dissolution of the parties' relationship does not prove, as a matter of law, that Guevara subjectively knew or suspected the defendants' alleged negligence on October 26, 2018, when the parties' relationship ended.
Fourth, no evidence was submitted to the trial court establishing that Guevara ever requested or obtained treatment from another dental provider because he suspected the defendants of wrongful or negligent conduct. Along similar lines, no evidence was submitted showing that any dental care provider ever told Guevara the defendants acted negligently or wrongfully, or that his periodontal disease and its side effects had continued for an unusually long period of time. In fact, Guevara testified at his deposition that no one from Borrego Health (the dental care provider he saw after Perris Modern Dentistry) ever told him the treatment he received from Perris Modern Dentistry was "wrong." This evidence bolsters our conclusion that reasonable minds could differ as to whether Guevara knew of his injury and the defendants' wrongdoing by October 26, 2018. (See Brewer, supra, 46 Cal.App.5th at p. 29 [triable issue of fact precluded summary judgment, in part, because "no one told [the patient] ... the spinal surgery [performed by the defendant] should not have been delayed"]; see also Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1198 [genuine issue of material fact precluded summary judgment in medical malpractice case where, as here, there was no evidence any health care professional told the patient he needed different treatment because his symptoms had persisted too long].)
In defending the trial court's determination that Guevara knew of, or suspected, the defendants' negligence as of October 26, 2018, the defendants claim the undisputed evidence showed that Guevara "terminated his treatment with the [defendants] due to their wrongdoing." But, as discussed, there is a genuine dispute concerning the reason why the defendants and Guevara ended their relationship. As noted, Dr. Sohal averred that the defendants ended their relationship with Guevara due to his rude and disrespectful behavior-evidence that undercuts the defendants' assertion that the evidence showed, as a matter of law, that Guevara ended the relationship with the defendants based on their alleged wrongdoing.
In support of their argument that Guevara terminated his relationship with the defendants based on their wrongdoing, the defendants rely on deposition testimony from Guevara. In relevant part, he testified as follows:
"Q. When you left Perris Modern on that last day had you made a decision that you were not going to return to Perris Modern?
A. Of course.
Q. Was that because you thought they were wrong in not treating your infection?
A. Of course."
However, this deposition testimony, even standing in isolation, does not establish that Guevara necessarily knew, or suspected, that the defendants negligently sequenced his dental treatment or placed anatomically incorrect permanent crowns on his teeth. A fact finder could reasonably infer that-by agreeing the defendants were "wrong" not to treat his infection "on that last day"-Guevara simply meant that the defendants were "wrong" in refusing to treat him altogether and turning him away due to his behavior issues on October 26, 2018. Because Guevara could have meant that he believed it was "wrong" of the defendants to refuse him treatment-conduct that is wholly unrelated to the negligence and lack of informed consent causes of action- Guevara's ambiguous deposition testimony does not establish, as a matter of law, that he knew of, or suspected, the defendants' negligence or wrongdoing when he stopped seeking treatment from them on October 26, 2018.
3. Objective Prong
Similar considerations lead us to conclude the trial court erred in finding, as a matter of law, that a reasonable person in Guevara's position would have been on notice of the defendants' negligence or wrongdoing by October 26, 2018. In short, a genuine issue of fact exists as to whether a reasonable person would have suspected wrongdoing or negligence on October 26, 2018, because there was evidence that the defendants continuously attributed Guevara's periodontic condition to his oral hygiene habits, there was evidence that the defendants single-handedly terminated the relationship with Guevara due to his behavioral issues, and there was no evidence that any dental care provider ever told Guevara the defendants' wrongdoing caused or aggravated his periodontal disease.
The defendants argue a reasonable person would have been on inquiry notice of their alleged negligence or wrongdoing by October 26, 2018, because, according to the defendants, that was when Guevara received his first gum disease diagnosis. The defendants point to deposition testimony from Guevara in which he stated that no one from Perris Modern ever told him he had gum disease. According to the defendants, the gum disease diagnosis Guevara received from Riverside Medical Center on October 26, 2018, placed him "on notice to find the facts as to why he was suffering [this] gum infection[] after [the defendants'] treatment."
The defendants' argument is unconvincing. Although Guevara testified that the defendants never told him about his gum disease, other evidence tended to show the exact opposite-that Guevara was diagnosed with gum disease throughout, and even before, the parties' relationship. Guevara provided the court with his Riverside Medical Center medical records, which showed that medical professionals there diagnosed him with gingival disease on April 27, 2017-before he went to Perris Modern Dentistry. Guevara also provided the court with his Perris Modern Dentistry patient records, which state that the defendants diagnosed him with Perio Type II (moderate periodontal disease) at his first appointment on November 3, 2017. Further, on his patient charts, a dental hygienist from Perris Modern Dentistry stated she explained to Guevara that his ongoing symptoms were "from infection." Moreover, Dr. Sohal stated in her declaration that she personally "informed [Guevara] he had poor oral hygiene and generalized moderate to severe periodontitis ...." Thus, there is, at the very least, a genuine issue of material fact as to when Guevara received his first gum disease diagnosis. Insofar as the evidence tends to establish that Guevara's gum disease merely persisted during the defendants' treatment-rather than arising during, and as a result of, the defendants' treatment-the mere persistence of his condition, "without more, does not trigger the statute of limitations as a matter of law." (Brewer, supra, 46 Cal.App.5th at p. 29.)
The defendants also claim a reasonable person would have been on notice of their asserted wrongdoing or negligence by October 26, 2018, because Guevara has admitted that he was not suffering from certain side effects from his gum infection (e.g., pain and bleeding gums) before he treated with the defendants, yet he was suffering from these side effects after he treated with the defendants. The defendants argue the onset or worsening of infection-related symptoms would, as a matter of law, put a reasonably prudent person on presumptive notice of the negligent cause and damaging effect of the defendants' allegedly wrongful acts.
In his opposition to the motion for summary judgment, Guevara stated that his, "periodontal situation was not addressed until he returned to the Perris Modern office on 2/12/2018 complaining of bleeding gums that were tender to the touch. [He] had not complained of bleeding gums until this date ...." Similarly, in Guevara's deposition, he testified that he did not experience pain or bleeding gums until he went to Perris Modern Dentistry for his second appointment on February 12, 2018.
We disagree. On the facts presented, reasonable minds could differ on whether the development of new side effects or the exacerbation of existing ones during the course of treatment would put an objectively reasonable person on presumptive notice." 'The best medical treatment sometimes fails, or requires long and difficult recuperation, or produces bad side effects.' [Citation.] 'The mere fact that [a treatment] does not produce hoped-for results does not signify negligence and will not cause commencement of the statutory period.'" (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 13911392; see Brewer, supra, 46 Cal.App.5th at p. 26 ["unsatisfactory outcomes or naturally occurring side effects are not necessarily sufficient as a matter of law to place a person on inquiry notice of a defendant's wrongdoing"].)
Here, there was evidence the defendants told Guevara his ongoing or worsening symptoms were the result of his own poor hygiene. There was also evidence the dental hygienist who treated Guevara recommended that he undergo laser gum treatment to address his gum infection on February 12, 2018, but he declined the recommendation. A rational fact finder could conclude that a reasonable person in Guevara's position would attribute his persistent symptoms-or his new ones-to causal factors other than the defendants' alleged wrongdoing, such as Guevara's poor hygiene and his apparent failure to follow the defendants' recommended methods of treatment. Since a rational fact finder could make such a finding, we conclude the trial court erred in finding, as a matter of law, that an objectively reasonable person in Guevara's position would necessarily suspect or know of the defendants' alleged wrongdoing as of October 26, 2018.
Because reasonable minds could differ on whether a reasonable person would know of the defendants' wrongdoing by October 26, 2018, and whether Guevara suspected the defendants of wrongdoing as of that date, the trial court erred in finding that the one-year statute of limitations codified in section 340.5 barred Guevara's lawsuit as a matter of law.
In light of our determination that there exists a genuine issue of fact concerning the timeliness of Guevara's lawsuit, we do not reach Guevara's alternative argument that the grant of summary judgment was improper because the defendants noticed the summary judgment hearing for less than 30 days before the trial date, in violation of section 437c, subdivision (a)(3).
IV
DISPOSITION
The judgment is reversed. Appellant Emilio Guevara is entitled to his costs on appeal.
WE CONCUR: BUCHANAN, J., KELETY, J.