Opinion
F085506
11-26-2024
MARTIN MCLAUGHLIN, Plaintiff and Appellant, v. SAN JOAQUIN COMMUNITY HOSPITAL, Defendant and Respondent.
Martin McLaughlin, in pro. per., for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza and Nicole F. DeVanon; White Canepa and Karen J. Ray, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BCV-22-100099 Thomas S. Clark, Judge.
Martin McLaughlin, in pro. per., for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza and Nicole F. DeVanon; White Canepa and Karen J. Ray, for Defendant and Respondent.
OPINION
THE COURT [*]
Plaintiff Martin McLaughlin filed a medical malpractice action against San Joaquin Community Hospital doing business as Adventist Health Bakersfield (SJCH). The trial court sustained SJCH's demurrer to McLaughlin's first amended complaint, without leave to amend. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
McLaughlin has been incarcerated in state prison since 1993 and is serving a sentence of life without the possibility of parole.
McLaughlin initiated this action on January 13, 2022, by filing a complaint against SJCH in the Kern County Superior Court. The complaint alleged "general negligence" and "intentional tort" causes of action, in relation to care and treatment McLaughlin received while a state prisoner and a patient at SJCH for a surgery (removal of an abscess on his right cheek) that took place on June 14, 2019. The complaint alleged that two days after McLaughlin underwent the surgery on June 16, 2019, an "infectious disease doctor" at the hospital informed him he had contracted "healthcare associated" methicillin-resistant staphylococcus aureus (MRSA) in connection with the surgery. McLaughlin was then quarantined and another surgery was performed to place a peripherally inserted central catheter line (PICC line) in his left bicep. The complaint sought $125,000 in compensatory damages, as well as punitive damages, for the infection contracted by McLaughlin.
On April 21, 2022, SJCH filed a demurrer and a motion to strike McLaughlin's initial complaint. The demurrer stated: "This Demurrer is brought because the first cause of action for 'general negligence' is actually based on claims of professional negligence and is time-barred by the one-year statute of limitations of Code of Civil Procedure section 340.5." The demurrer noted that under Civil Code section 3333.1, subdivision (c), SJCH is a health care provider. The demurrer further stated: "This Demurrer also is brought because the second cause of action for 'intentional tort' is fatally uncertain. On the [relevant] page of the Judicial Council form Complaint, Plaintiff checked the boxes for 'general negligence' and 'intentional tort' as causes of action. However, Plaintiff only attached a Judicial Council cause of action form for 'general negligence.' Since there are no allegations of intentional conduct in the cause of action form for 'general negligence' or anywhere in the body of Plaintiff's form Complaint, the second cause of action fails to state sufficient facts to constitute a cause of action against Defendant." (Underscoring omitted.)
The Demurrer added: "Professional negligence is defined as '[a] negligent act [or] omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrong death..' (Code Civ. Proc., § 340.5; Unruh-Haxton v. Regents of the University of California (2008) 162 Cal.App.4th 343, 353; Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514.)"
Civil Code section 3333.1, subdivision (c) provides: (1)" 'Health care provider' means .. any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code."
In support of its demurrer, SJCH filed a request for the court to take judicial notice of the following facts: (1) the date of filing of the complaint; (2) McLaughlin's status as an inmate serving a sentence of life without the possibility of parole; and (3) the operating license (for a general acute care hospital) issued to SJCH by the California Department of Public Health.
SJCH concurrently filed a motion to strike which sought to strike the check mark on McLaughlin's form complaint for the intentional tort cause of action, as well as McLaughlin's respective requests for $125,000 in compensatory damages and punitive damages.
The trial court heard these matters on June 2, 2022. McLaughlin did not file any opposition papers; nor did he appear at the hearing. The trial court granted SJCH's request for judicial notice. The court also sustained the demurrer and granted the motion to strike. McLaughlin was given leave to amend his complaint.
On September 12, 2022, McLaughlin filed a first amended complaint (FAC). As for defendants, the FAC named, "San Joaquin Community Hospital, specifically Mark Jefferey Loewen, Jennifer Wolff, Amber Elise Harmon, Michael Brandon Freeman, Steven Fogel." The FAC alleged a single cause of action for "general negligence," essentially advancing a medical negligence theory (see below), and sought compensatory and punitive damages. The FAC alleged that McLaughlin was admitted to SJCH on June 11, 2019, for an abscess on his right cheek; his blood was drawn and was negative for MRSA; and he was examined by Mark Jefferey Loewen and sent for surgery.
The FAC alleged McLaughlin underwent surgery to remove the abscess on his cheek, on June 14, 2019. More specifically, the FAC stated: "Defendant Jennifer Wolff performed both pre and post operation anesthesia with assistance from Defendant Amber Elise Harmon. Defendant Michael Brandon Freeman performed the surgery on plaintiff's face." The FAC alleged that McLaughlin thereafter contracted MRSA, as a result of the surgery, in his surgical wound. Specifically, the FAC alleged that McLaughlin's medical records showed he had a" 'surgical site infection,'" which indicated "that these three defendants' actions caused plaintiff to be infected with [MRSA]." The FAC also alleged that defendant Steven Fogel, SJCH's medical director at the time, was responsible for the unhealthy conditions that resulted in McLaughlin's MRSA infection. Various medical records were attached to the FAC as Exhibits A and B. In contrast to the original complaint, the FAC omitted mention that McLaughlin was first informed on June 16, 2019, that he had contracted MRSA at the hospital (albeit the records attached to the FAC made clear that McLaughlin was diagnosed with MRSA during his hospital stay). The FAC again sought $125,000 in compensatory damages, as well as punitive damages.
On October 7, 2022, SJCH filed a demurrer to McLaughlin's FAC as well as a motion to strike McLaughlin's respective requests for $125,000 in damages and punitive damages and the exhibits attached to the FAC. SJCH's demurrer again posited that McLaughlin's FAC was barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.5. Specifically, the demurrer stated: "The First Cause of Action for 'General Negligence' is actually based on claims of professional negligence and is barred by the statute of limitations of Code of Civil Procedure section 340.5, and therefore the cause of action fails to state facts sufficient to constitute a cause of action against Defendant Hospital."
SJCH also filed a request for judicial notice in support of its demurrer and motion to strike. SJCH requested the court to take judicial notice of, inter alia, the court's order granting SJCH's prior request for judicial notice; McLaughlin's status as an inmate serving a sentence of life without the possibility of parole; and the operating license (for a general acute care hospital) issued to SJCH by the California Department of Public Health.
The trial court heard the matter on November 10, 2022. After hearing from the parties, the trial court sustained SJCH's demurrer to McLaughlin's FAC without leave to amend. The court granted SJCH's requests for judicial notice and found the FAC was time barred under Code of Civil Procedure section 340.5. Specifically, the court stated the demurrer was sustained because the FAC was "time-barred pursuant to [Code of Civil Procedure] section 340.5 and fail[ed] to state facts sufficient to constitute a cause of action."
The court further stated:
"In addition, the court also takes judicial notice of Plaintiff's original complaint, which included harmful allegations that Plaintiff impermissibly seeks to omit from the First Amended Complaint, namely, the allegation that Plaintiff had surgery on 06/14/2019 to remove an abscess and two days later an infectious disease doctor came to see Plaintiff in the recovery room and told him he had contracted a methicillin resistant staphylococcus aureus (MRSA) infection. This allegation admits that Plaintiff discovered the injury of which he complains on 06/16/19, yet did not file his original Complaint in this action until 01/13/22.
"While Plaintiff was previously given an opportunity to amend, the First Amended Complaint did not allege any facts that would overcome the bar of the one-year statute of limitations of [Code of Civil Procedure] section 340.5, and Defendant is correct that 'the tolling provision [of Code of Civil Procedure section 352.1] has been interpreted to apply to all prisoners except those subject to a life sentence without the possibility of parole.' (Brooks v. Mercy Hospital (2016) 1 Cal.App.5th 1, 3.) Plaintiff is a prisoner for life without the possibility of parole. Therefore, Defendant's Demurrer is sustained without further leave to amend."
The court denied SJCH's concurrent motion to strike as moot. This appeal followed.
DISCUSSION
I. Trial Court Properly Sustained Demurrer on Statute of Limitations Grounds
A. Standard of Review
An order sustaining a demurrer is reviewed de novo to determine whether the complaint states a cause of action. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) On appeal, we" 'treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.'" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) An exception to this principle applies when a plaintiff alleges facts that contradict an earlier version of a complaint in an effort to avoid defects in his or her claim. In that case, under the so-called "sham pleading doctrine," a reviewing court may take judicial notice of the prior pleading and disregard inconsistent allegations in the amended complaint unless the plaintiff provides a satisfactory explanation for the change. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426; see Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1109 [sham pleading doctrine applies to both verified and unverified complaints].)
When a complaint contains allegations that are fatal to a cause of action, a plaintiff cannot avoid those defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier. (Hendy v. Losse (1991) 54 Cal.3d 723, 742-743; Pierce v. Lyman, supra, 1 Cal.App.4th at p. 1109; Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447 [if an amended complaint contradicts facts pleaded in an earlier complaint, "we will take judicial notice of the earlier complaints and disregard inconsistent allegations, absent an explanation for the inconsistency"].)
Additionally, "[a] demurrer is directed to the face of the complaint and related matters subject to judicial notice." (Moore et al., Cal. Civil Practice-Procedure (2021) § 9:1.) "Therefore, in ruling on a demurrer, a court may take judicial notice of admissions or inconsistent statements by plaintiff in earlier pleadings in the same lawsuit ... and may disregard conflicting factual allegations in the complaint." (Edmon &Karnow, Cal. Practice Guide: Civil Procedure Before Trial (2021) § 7:47.) "Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)
The trial court's ruling sustaining a demurrer will be upheld if the demurrer could have been properly sustained on any ground. (Edmon &Karnow, Cal. Practice Guide: Civil Procedure Before Trial, supra, § 7:149.1; Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 994; Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)
When a demurrer is sustained without leave to amend, we review the denial of leave for abuse of discretion. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1469.) It is an abuse of discretion for the trial court to sustain a demurrer without leave to amend "if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action." (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711; see Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) "To prove such abuse of discretion, however, the plaintiff must demonstrate how the complaint can be amended. [Citation.] While such a showing can be made for the first time to the reviewing court [citation], it must be made." (Smith, at p. 711.) "To satisfy that burden on appeal, a plaintiff 'must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.'" (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).)
B. The Parties' Contentions on Appeal
The argument section of McLaughlin's opening brief consists of one short paragraph, without adequate development of his argument or citations to the record and appropriate authorities. The opening brief simply states: "The trial court erred by sustaining Defendant/Respondent's Demurrer, because the COVID 19 Pandemic clearly hindered Appellant/Plaintiff's ability to file this suit in a timely manner. This extraordinary circumstance prevented a party acting with reasonable diligence from complying with a time limit. See Walker v. Jastremski [(2005)] 430 F.3d 560 (2d. Cir. 2005) and Bridgeway Corp. v. Citibank, N.A. [(2001)] 132 F.Supp.2d 297, 303 (S.D.N.Y. 2001)." McLaughlin seeks reversal of the judgment.
SJCH appears in this matter as defendant and respondent. SJCH states in its responsive brief: "McLaughlin's complaint was filed well after the expiration of the one-year statute of limitations set forth in Code of Civil Procedure section 340.5. This point is clearly made by McLaughlin's admission that he learned he contracted MRSA on June 16, 2019, and yet did not file suit until January 13, 2022. [Citation.] '[F]or a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed.' (Austin v. Medicis (2018) 21 Cal.App.5th 577, 585, citations omitted; Code Civ. Proc., § 430.30, subd. (a).) In this case, the untimeliness of McLaughlin's suit appears on the face of the complaint and in matters judicially noticed by the court."
SJCH appears to be the only defendant to make an appearance in the case, which indicates that SJCH was the only defendant served by McLaughlin in this matter.
SJCH's responsive brief further
"McLaughlin's complaint and FAC alleged a cause of action for general negligence based upon the alleged negligence of McLaughlin's treating physicians. [Citation.] To determine which statute of limitations governs a given cause of action, the court must 'identify the nature of the cause of action, i.e., the "gravamen" of the cause of action,' by figuring out what 'primary right' is at issue. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412.) The 'form or label of the cause of action or the relief demanded' is largely immaterial to the determination of which statute of limitations applies. (Ibid.)
"The gravamen of plaintiff's negligence cause of action is medical malpractice. Specifically, McLaughlin's complaint alleged professional negligence by physicians during their care and treatment of him. Professional negligence is defined as 'a negligent act .. by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury....' (Code Civ. Proc., § 340.5.) As such, McLaughlin's claims are governed by Code of Civil Procedure section 340.5 (hereinafter referred to as '340.5').
"340.5 states '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 . one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.' Thus McLaughlin had one year from the date of discovery to commence his medical malpractice action against SJCH. [¶ ] . [¶ ]
"McLaughlin's complaint filed on January 13, 2022 contained the following allegation: [¶ ] ..the surgery was postponed until 6/14/19, after the surgery I was placed in a recovery room next to another prisoner I believe the day was Friday, then on Sunday morning two days later an infectious disease doctor comes in the recovery room and tells me I have contracted Healthcare Associated Methicillin-resistant Staphylococcus aureus or MRSA.' [Citation.]
"Pursuant to 340.5 McLaughlin had one year from June 16, 2019, to file suit against SJCH for the alleged medical malpractice. The initial complaint was not filed until January 13, 2022, well after the statute of limitations had expired. [Citations.] Notwithstanding the clear untimeliness of McLaughlin's complaint, the trial court granted him leave to amend after the initial demurrer.
"In his amended complaint McLaughlin attempted to avoid the statute of limitations by omitting any reference to when he learned that he had contracted MRSA. However, '[u]nder the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.' (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343-344, punctuation omitted.) Accordingly, the trial court properly disregarded McLaughlin's attempt to remove the date of discovery from his amended pleading. [Citation.]
"Indeed, despite McLaughlin's attempt to amend the complaint, it remained clear that he failed to timely file his claim for medical malpractice. As a result, the trial court did not err in sustaining the demurrer and did not abuse its discretion in denying leave to amend as any such amendment would have been futile."
McLaughlin filed a one-paragraph reply brief. The reply brief states, in part:
"The respondents brief argues that appellant tried or tries to omit when appellant learned that he had contracted (MRSA) when clearly in the original complaint as with the first amended complaint appellant said that he was admitted on 6/11/2019 and the (MRSA) was discovered on 6/14/2019 after the surgery which was done at DEFENDANTS hospital, therefore this argument fails."
C. Analysis
Based on the parties' briefs and the record on appeal, we agree with SJCH that the gravamen of McLaughlin's complaint against SJCH is medical negligence in relation to the surgery conducted at the hospital to remove an abscess from McLaughlin's right cheek-which site became infected with MRSA in connection with the surgery. (Unruh-Haxton v. Regents of the University of California, supra, 162 Cal.App.4th at p. 353 [" '[W]hen a cause of action is asserted against a health care provider on a legal theory other than medical malpractice, the courts must determine whether it is nevertheless based on the "professional negligence" of the health care provider so as to trigger MICRA [the Medical Injury Compensation Reform Act].' "].)
" 'Professional negligence' means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed." (Civ. Code, § 3333.1, subd. (c)(2).) Here, the injury in question occurred in the course of provision of medical treatment to McLaughlin at SJCH and any alleged wrongful acts occurred in connection with such treatment. Thus, the alleged wrongful acts were done "in the rendering of professional services .. for which the health care provider is licensed." (Civ. Code, § 3333.1, subd. (c)(2).) Negligent hiring and supervision of medical personnel also is considered professional negligence. (So v. Shin (2013) 212 Cal.App.4th 652, 668.) In sum, the MICRA legislation and statute of limitations applies here.
Code of Civil Procedure section 340.5 states that the limitations period for professional negligence actions against health care providers is "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." (Code Civ. Proc., § 340.5.) "Thus, regardless of extenuating circumstances, 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.)
Here, there is no dispute that McLaughlin was informed around June 16, 2019, that his surgical wound was infected with MRSA. Accordingly, the one-year limitations period of Code of Civil Procedure section 340.5 applies. Indeed, McLaughlin does not dispute or attempt to refute SJCH's contentions that the present matter is in effect a professional negligence action subject to the one-year statute of limitation under Code of Civil Procedure section 340.5. Since McLaughlin did not file the complaint initiating this action until January 13, 2022, his compliant is time barred under Code of Civil Procedure section 340.5.
Furthermore, even if the cause of action did not sound in professional negligence and MICRA did not apply, the statute of limitations for general negligence is two years. (Code Civ. Proc., § 335.1.) The complaint was filed more than two years after the alleged wrongful conduct and was therefore time barred under Code of Civil Procedure section 335.1 as well.
II. Tolling of the Statute of Limitations is Either Not Applicable or Does Not Change the Outcome
A. COVID-19 Pandemic and the Judicial Council's Emergency Rule 9
In his reply brief, McLaughlin states: "The respondent brief seems to rely on several cases that predate the covid 19 pandemic, nor does the respondents brief refute any of the direct evidence appellant introduced to this very court showing how 'for prisoners' the covid 19 pandemic was far more restrictive, and as soon as appellant received the opportunity[,] he filed suit."
For its part, SJCH addressed the import of the COVID-19 pandemic as follows:
"During the COVID-19 pandemic, Emergency Rule 9 was adopted which provided for a tolling of the statute of limitations. Emergency rule 9, subdivision (a) states, 'Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020." (Emergency rule, 9.)
"Pursuant to Emergency Rule 9, McLaughlin was provided an additional six months to file his complaint, and had until December 16, 2020, to do so. McLaughlin, however, did not file his complaint until January 13, 2022, more than one year after the expiration of the statute of limitations (even including the additional time granted under Rule 9).
"Therefore, the trial court correctly determined that McLaughlin's claim was time barred."
SJCH correctly notes that the Judicial Council adopted Emergency rule 9 in response to the COVID 19 pandemic. Emergency rule 9 provided:" 'Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.'" (People v. Financial Casualty &Surety, Inc. (2021) 73 Cal.App.5th 33, 39.) Accordingly, Emergency rule 9 does not help McLaughlin here.
B. Tolling for State Prison Inmates
Code of Civil Procedure section 352.1, subdivision (a) states: "If a person entitled to bring an action ... is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not part of the time limited for the commencement of the action, not to exceed two years." Since McLaughlin is serving a sentence of life without the possibility of parole, the tolling afforded by Code of Civil Procedure section 352.1, subdivision (a) is not applicable to him. (Haning et al., Cal. Practice Guide: Personal Injury (2024) § 5-B, ¶ 5:142.2 ["plaintiffs imprisoned for life without possibility of parole are excluded from § 352.1(a) tolling"]; Brooks v. Mercy Hosp., supra, 1 Cal.App.5th at pp. 5-7 [prisoners sentenced to life without possibility of parole are excluded from tolling provision of § 352.1, subd. (a)]; accord, 3 Witkin, Cal. Procedure, Actions (6th ed. 2024) § 758(3)].)
C. Equitable Tolling
Equitable tolling also does not apply here. Equitable tolling of statutes of limitation "is a judicially created, nonstatutory doctrine." (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) Courts have applied the doctrine "in carefully considered situations to prevent the unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice." (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) "Where applicable, the doctrine will 'suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.'" (McDonald at p. 99.) "[T]he party invoking equitable tolling bears the burden of proving its applicability." (Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 555.)
"[A]pplication of the doctrine of equitable tolling requires timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff." (Addison v. State of California (1978) 21 Cal.3d 313, 319 (Addison).) For example, courts have employed the doctrine of equitable tolling when, among other required elements, the plaintiff reasonably and in good faith pursues other legal remedies. Thus, "the statute of limitations on a personal injury action is tolled while [the] plaintiff asserts a workers' compensation remedy against [the] defendant." (Addison at p. 318.) Addison explains: "It is fundamental that the primary purpose of statutes of limitation is to prevent the assertion of stale claims by plaintiffs who have failed to file their action until evidence is no longer fresh and witnesses are no longer available. '[T]he right to be free of stale claims in time comes to prevail over the right to prosecute them.' [Citations.] The statutes, accordingly, serve a distinct public purpose, preventing the assertion of demands which through the unexcused lapse of time, have been rendered difficult or impossible to defend. However, courts have adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage." (Addison at p. 317.)
In his opening brief, McLaughlin contends the COVID 19 pandemic "hindered" his "ability to file [this] suit in a timely manner." However, as discussed above, the applicable statute of limitations here was tolled under the Judicial Council's Emergency rule 9 to account for hardships engendered by the pandemic. McLaughlin does not explain precisely how the pandemic precluded him from timely filing his complaint despite the tolling afforded by Emergency rule 9.
The two cases McLaughlin cites in this context-Walker v. Jastremski, supra, 430 F.3d 560 and Bridgeway Corp. v. Citibank, N.A., supra, 132 F.Supp.2d 297-are unavailing. Walker v. Jastremski held that a pro se prisoner was not entitled to equitable tolling of limitations period on federal civil rights claims based on his late receipt of court documents that he had requested shortly before expiration of the applicable limitations period. Walker v. Jastremski found the documents were not necessary to file a legally sufficient claim as the relevant facts were already within the prisoner's knowledge, and the prisoner's faulty memory and his misplacement of his copy of the documents were not grounds for equitable tolling. (Walker v. Jastremski at p. 564.) Walker v. Jastremski clarified: "We have applied equitable tolling only in 'rare and exceptional circumstances,' where we found that 'extraordinary circumstances' prevented a party from timely performing a required act, and the party 'acted with reasonable diligence throughout the period he [sought] to toll.'" (Ibid.)
In Bridgeway Corp. v. Citibank, N.A., the statutes of limitations on the claims for breach of contract, fraud, and unjust enrichment brought by the plaintiff, a bank depositor, were equitably tolled during the period that the plaintiff had diligently prosecuted claims before a foreign tribunal and sought to enforce the foreign judgment in the United States. (See Bridgeway Corp. v. Citibank, N.A., supra, 132 F.Supp.2d at pp. 303-304.) Bridgeway Corp. v. Citibank, N.A. is distinguishable from the present matter.
III. Conclusion
We affirm the trial court's order sustaining SJCH's demurrer to the FAC. Moreover, McLaughlin has not demonstrated there is a reasonable probability he can amend the FAC to allege any cause of action. Accordingly, we detect no abuse of discretion in the trial court's denial of further leave to amend.
SJCH contends, in its responsive brief, that "McLaughlin's opening brief suffers from numerous procedural defects, the most notable of which is his failure to cite to the record in support of the statements contained in his brief." SJCH notes that "[i]f an opening brief fails to make appropriate references to the record in support of the points urged on appeal, the appellate court may consider those points waived or forfeited." In light of our disposition in this matter, we need not address SJCH's contentions regarding any deficiencies in McLaughlin's opening brief.
DISPOSITION
The judgment is affirmed. Each side to bear its own costs on appeal.
[*] Before Smith, Acting P. J., Meehan, J. and Snauffer, J.