Opinion
H044146
08-09-2018
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CV279322)
Plaintiff Robert Maura contends that the trial court erred in granting summary judgment on statute of limitations grounds and dismissing his malpractice action against defendant Prince G. Daniels, D.D.S. Maura claims that the limitations period did not begin to run when he learned on January 10, 2014 that there was a hole in his tongue but only the following day, January 11, when he visited Daniels and learned that Daniels had caused the injury. Since his action was timely if it accrued on January 11 rather than January 10, he maintains that the judgment must be reversed. We agree with Maura and reverse the judgment.
Maura also claims that the limitations period did not commence to run until January 11, 2014 because he remained under Daniels's continuous treatment and that the trial court erred in denying him leave to amend to expressly allege delayed discovery. Because we conclude that the undisputed facts did not show that the cause of action accrued prior to January 11, we need not address these issues.
I. Standard of Review
"Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo." (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210.) "While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly).) When the defendant moves for summary judgment on statute of limitations grounds, the defendant bears both the initial burden of production and the burden of persuasion that the limitations period has expired. (Code Civ. Proc., § 437c, subd. (p)(2).) The "initial burden of production [requires the defendant] to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
Subsequent statutory references are to the Code of Civil Procedure.
II. Applicable Statute of Limitations
"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.) "[T]he term 'injury,' as used in determining the date of accrual of a cause of action, 'means both "a person's physical condition and its 'negligent cause.' " ' [Citation.] Thus, physical injury alone is often insufficient to trigger the statute of limitations." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 815, fn. 2 (Fox).)
The limitations period does not begin to run until the plaintiff discovers or should have discovered the cause of action. "The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. [Citation.] A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her. [Citation.]" (Jolly, supra, 44 Cal.3d 1103, 1109, fn. omitted.) "Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Id. at p. 1111.)
III. Undisputed Facts
The parties agreed that these facts, which were set forth in Daniels's separate statement, were undisputed.
Daniels extracted a wisdom tooth from Maura's mouth on January 3, 2014. After the surgery, Maura experienced significant pain in his mouth and tongue. Maura saw Daniels for a post-operative follow-up appointment on January 6. At that visit, Daniels told Maura that he was healing and should see Daniels again in a few days. Maura continued to be in a lot of pain, and he began to notice that the pain was coming from his tongue.
On January 10, 2014, Maura went to see his primary care physician, Dr. Daniel Chyu, who took a picture of the injury to Maura's tongue and showed it to Maura. Maura went to see Daniels the next day, January 11, "to confront him." At the time of the January 11 visit, Maura suspected Daniels had done something wrong.
IV. Maura's Additional Facts
Maura did not dispute any of the undisputed facts in Daniels's separate statement. Maura's separate statement added several additional facts, which Maura alleged were undisputed. When Maura saw Chyu at around 5:00 p.m. on January 10, 2014, he did not know that anything had happened to his tongue. Chyu told Maura that he did not know how the injury had occurred. He believed it could have been caused by Maura biting his tongue or by Daniels doing something. At the time that Maura went to see Daniels on January 11, he did not know how the injury to his tongue had occurred. He learned that Daniels had injured his tongue only on January 11, when Daniels admitted having done so.
This latter fact was a disputed one. Maura testified at his deposition that Daniels looked at the hole in Maura's tongue and admitted that he had "nicked" Maura's tongue when he was trying to extract Maura's tooth. Daniels testified at his deposition that he told Maura "I never cut his tongue."
V. Proceedings Below
On November 13, 2014, Maura sent to Daniels a notice of intent to sue (§ 364), thereby extending the one-year limitations period by 90 days. (Woods v. Young (1991) 53 Cal.3d 315, 328.) He filed his original complaint on April 13, 2015.
The notice of intent, the original complaint, and the first amended complaint, which was filed in September 2015, all inaccurately alleged that the dental surgery had taken place on January 13, 2014.
Daniels moved for summary judgment on the ground that Maura's cause of action was barred by the one-year statute of limitations set forth in section 340.5. Daniels argued (inconsistently) that Maura's cause of action had accrued "on or before January 11, 2014" and that the accrual had occurred "on or before January 10, 2014."
Maura's opposition to Daniels's motion asserted that Maura had not been aware that the hole in his tongue had a "negligent cause" until he saw Daniels on January 11, 2014, so his cause of action did not accrue until January 11. Maura also argued that the cause of action did not accrue until February 11, because Daniels was continuing to treat Maura.
Maura testified at his deposition that he did not return to Daniels after the January 11, 2014 appointment, but Daniels testified at his deposition that Maura "treated with" him until February 11, 2014. Neither party included these facts in a separate statement. Daniels's records for Maura showed that he treated Maura on January 16 and February 11.
Daniels's reply argued: "Plaintiff did not receive any new information on the 11th that he did not have on the 10th. The only logical inference is that since Plaintiff believed that Dr. Daniels had done something wrong by the 11th, Plaintiff formed that belief at the latest when Dr. Chyue [sic] showed him the injury to his tongue on January 10th." Daniels also maintained in his reply that the continuous treatment rule did not apply to the one-year statute of limitations.
The trial court granted Daniels's motion. It concluded that Daniels had met his initial burden by showing that Maura "knew of his specific injury (a hole or cut in his tongue) by no later than January 10, 2014 and by that same time suspected that [Daniels] was responsible for the injury." The court concluded that the limitations period began to run when Maura had "notice or information of circumstances to put a reasonable person on inquiry, or ha[d] the opportunity to obtain knowledge from sources open to his investigation." The court found that it was undisputed that Maura suspected Daniels of wrongdoing on January 10, so the limitations period began to run on that day, rather than the following day. The court entered a judgment of dismissal, and Maura timely filed a notice of appeal from the judgment.
Maura's trial counsel had sought leave to amend to expressly allege delayed discovery, but he admitted that he had no new facts to allege. The trial court denied the request and also ruled that express delayed discovery allegations would not have made any difference. --------
VI. Analysis
"[S]tatutes of limitation do not begin to run until a cause of action accrues." (Fox, supra, 35 Cal.4th at p. 806.) "An important exception to the general rule of accrual is the 'discovery rule,' which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citation.] [¶] A plaintiff has reason to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements.' " (Fox, at p. 807.) "[A]ccrual of a cause of action [is] contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause." (Fox, at p. 808.) "The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. . . . In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation." (Fox, at pp. 807-808.) "[A] potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light." (Fox, at pp. 808-809.)
Daniels established in support of his motion that Maura learned of his physical injury on January 10, 2014 and that by January 11 Maura suspected Daniels of having caused the injury. However, none of his undisputed facts established that Maura was aware of or should have been aware of Daniels's wrongdoing on January 10. Instead, Daniels relies on what he deems "[t]he only logical inference" from these facts. In Daniels's view, because Maura "did not receive any new information" between January 10 and January 11, it necessarily follows that Maura was aware or should have been aware of Daniels's wrongdoing on January 10.
The problem with Daniels's reliance on an inference is that it is not the "only" reasonable inference that could be drawn. "[S]ummary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact." (§ 437c, subd. (c).) In his opposition to Daniels's motion, Maura presented evidence that his state of knowledge prior to January 11 did nothing more than raise the possibility that Daniels could have caused his injury. Where a plaintiff knows only that wrongdoing is one possible cause of an injury, he has a duty to promptly and diligently investigate the matter. However, the cause of action does not accrue when a plaintiff learns that wrongdoing is a possible cause but only when a prompt and diligent investigation would have disclosed that wrongdoing was the cause of the injury. (Fox, supra, 35 Cal.4th at pp. 808-809.) Here, plaintiff first learned of his physical injury at around 5 p.m. on January 10 and knew no more than that wrongdoing was a possible cause. The very next day, he went to see Daniels and learned that wrongdoing was in fact the cause of his injury. It is hard to imagine a more prompt and diligent investigation than the one conducted by Maura. Under these circumstances, a reasonable trier of fact could conclude that Maura's cause of action did not accrue until January 11. Consequently, the superior court erred in granting summary judgment on statute of limitations grounds.
VII. Disposition
The judgment is reversed, and the matter is remanded with directions to vacate the order granting summary judgment and to enter a new order denying the motion for summary judgment.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.