Opinion
E045444.
6-25-2009
ESTELLA PELAYO et al., Plaintiffs and Appellants, v. INTERIM HEALTHCARE, INC. et al., Defendants and Respondents.
Law Offices of Maro Burunsuzyan, Maro Burunsuzyan; Veatch Carlson and Dawn M. Flores-Oster for Plaintiffs and Appellants. Law Offices of James R. Rogers, Bridgette A. Webster, and Keith E. Zwillinger for Defendants and Respondents.
Not to be Published in Official Reports
I. INTRODUCTION
Plaintiffs and appellants Estella Pelayo and Jose Aguilar (plaintiffs) appeal from dismissal of their complaint after the trial court sustained the demurrer of defendants and respondents Interim Healthcare, Inc. and Beverly Declouitt (defendants) to plaintiffs second amended complaint without leave to amend. Plaintiffs contend their complaint was not barred by the one-year statute of limitations applicable to medical malpractice actions because (1) they adequately pleaded delayed discovery; (2) they adequately pleaded fraudulent concealment; (3) they adequately pleaded legal disability; (4) their pleading was not sham; and (5) they were not provided an adequate opportunity to explain inconsistencies in their pleadings. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Plaintiffs filed their original complaint on June 13, 2006, for medical malpractice, wrongful death, and negligent infliction of emotional distress. The complaint alleged that plaintiffs had contracted with defendant Interim Healthcare, Inc. to provide nursing services to their daughter (decedent), and pursuant to that contract, Declouitt provided in-home nursing care to decedent. Plaintiffs alleged that on May 28, 2005, "defendants failed to adequately monitor, care and treat" decedent by "failing to properly use and monitor the respiratory/ventilation equipment," resulting in decedents death. In their cause of action for intentional infliction of emotional distress, plaintiffs alleged they were present during defendants wrongful acts and that plaintiffs "believed that [d]efendants wrongful act was causing injury to their daughter. As a result thereof, [p]laintiffs suffered serious emotional distress beyond that which would be anticipated in a disinterested witness, and which was not an abnormal response to the circumstances."
The original complaint gave the date as May 27, 2005, which plaintiffs state was a typographical error; all other pleadings refer to the pertinent date as May 28, and we will therefore use that date throughout this opinion.
Defendants filed a demurrer to the original complaint on the ground the statute of limitations under Code of Civil Procedure section 340.5 had run. Defendants requested the trial court to take judicial notice of decedents death certificate, which showed decedent had died on May 31, 2005. Before the hearing on the demurrer, plaintiffs dismissed their cause of action for negligent infliction of emotional distress. Thereafter, the trial court sustained the demurrer but permitted plaintiffs to amend their complaint.
All further statutory references are to the Code of Civil Procedure.
Plaintiffs filed a first amended complaint (FAC) on May 10, 2007, for medical malpractice and wrongful death. The FAC repeated the allegations of the original complaint that defendants had failed to properly use or monitor respiratory/ventilation equipment, and added that "[o]n May 28, 2005, although plaintiffs observed [d]efendants perform a procedure differently and they believed their daughter was injured thereby[,] plaintiffs did not and could not suspect or discover the negligent cause of said injury until . . . June 30, 2005." The FAC also alleged that plaintiffs were present "during the performance of [d]efendants conduct as alleged hereinabove and hereinbelow."
Defendants filed a demurrer to the FAC on statute of limitations grounds. In opposition, plaintiffs provided their counsels declaration stating that certain allegations of the original complaint had been included in error. The trial court found counsels explanation inadequate and sustained the demurrer, but again granted plaintiffs leave to amend.
Plaintiffs filed a second amended complaint (SAC) for medical malpractice and wrongful death on September 12, 2007. The SAC, like the earlier complaints, alleged that defendants failed to properly use or monitor respiratory/ventilation equipment. Like the FAC, the SAC alleged that on May 28, 2005, plaintiffs had "observed [d]efendants perform a procedure differently and they believed their daughter was injured thereby," but that they "did not and could not suspect or discover the negligent cause of said injury until . . . June 30, 2005."
The SAC included allegations that "prior to the filing of the within complaint, three years had not elapsed from the date of injury, and a period of less than one calendar year[] had elapsed after plaintiff[s] first learned, or had a reasonable opportunity to learn," that their injuries were a proximate result of defendants negligent acts or omissions. The SAC further alleged that defendants knew of their negligence and that it had caused decedents death, but had intentionally and fraudulently failed to disclose those facts to plaintiffs, thus tolling the statute of limitations under section 340.5.
The SAC further alleged that after decedents death on May 31, 2005, plaintiffs were under a legal disability as defined in section 352, such that they were incapacitated following decedents death. The SAC alleged they were not on notice of defendants negligence, and there was not sufficient information available to them to put a reasonable person on inquiry notice. The SAC alleged that between June 14 and 30, 2005, plaintiffs learned of defendants negligence and intentional concealment from another nonparty family member. The SAC alleged that on June 30, 2005, plaintiffs learned, through consulting counsel, that they might have a cause of action against defendants. The SAC alleged that before June 30, 2005, plaintiffs did not, and could not, through reasonable diligence, have discovered the facts constituting their cause of action because defendants intentionally concealed their negligence, and plaintiffs reasonably relied on defendants intentional concealment and misrepresentations.
Defendants demurred to the SAC on statute of limitations grounds, and the trial court sustained the demurrer without leave to amend. The trial court found plaintiffs had not properly pleaded delayed discovery, and their attempt to plead legal incapacity failed. The trial court held the complaint was barred by the one-year statute of limitations under section 340.5.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Standard of Review
When the trial court sustains a demurrer without leave to amend, on appeal, "[w]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse." (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)
In filing an amended complaint after a demurrer has been sustained, the plaintiff may not avoid the defects of the earlier pleadings "by omitting facts that made the earlier pleadings defective or alleging new facts inconsistent with the allegations of the earlier pleadings." (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384 [when a plaintiff pleads inconsistent facts without explaining the inconsistency, the court reads into the amended complaint the facts alleged in the superseded complaint].) Another court has stated the rule as follows: "A litigant should not be allowed to abuse the privilege of amendment. If the amended pleading is only a sham, and it is apparent that no cause of action can truthfully be stated, the court should disregard that pleading." (Avalon Painting Co. v. Alert Lbr. Co. (1965) 234 Cal.App.2d 178, 184.)
B. Applicable Statute of Limitations
Section 340.5 provides: "In an action for injury or death against a health care provider based upon such persons 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." The trial court took judicial notice of decedents death certificate, which indicates decedent died on May 31, 2005. Plaintiffs contend their original complaint, filed on June 19, 2006, was not barred by the one-year statute of limitations applicable to medical malpractice actions because their discovery of their cause of action was delayed, defendants fraudulently concealed their negligence, and plaintiffs were suffering from a legal disability that tolled the statute of limitations.
C. Delayed Discovery
Plaintiffs contend they adequately pleaded delayed discovery, and their original complaint was therefore timely filed.
The limitations period begins to run when the plaintiff suspects or should suspect he or she has been wronged, or stated another way, when "the plaintiff `"`has notice or information of circumstances to put a reasonable person on inquiry . . . ."" (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.) "[I]t is the discovery of facts, not their legal significance, that starts the statute." (Id. at p. 1113.)
Plaintiffs alleged they "discovered the facts constituting their cause of action on or around June 30, 2005 when they sought . . . to ascertain from counsel whether the defendants had engaged in any negligent act which resulted in injury." However, in alleging that they learned through consulting with counsel "that there may exist a cause or causes of action against the defendants," plaintiffs merely alleged, in effect, that they learned the legal significance of the facts already known to them.
As our Supreme Court explained in Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897 and 898, "[T]he uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim. [Citations.] It is irrelevant that the plaintiff is ignorant of . . . the legal theories underlying his cause of action. Thus, if one has suffered appreciable harm and knows or suspects that . . . blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period." We conclude, therefore, that plaintiffs failed to adequately allege delayed discovery.
D. Fraudulent Concealment
Plaintiffs also contend that they adequately pleaded fraudulent concealment such that the statute of limitations was tolled. With respect to fraudulent concealment, plaintiffs alleged that defendants "knew of their own negligence, and the relationship between the negligence and [decedents] death, and intentionally failed to disclose those facts to the plaintiffs, thereby depriving plaintiffs from having a reasonable opportunity to learn of said negligent conduct, acts, and cause of [decedents] death."
Fraudulent concealment is a judicially created doctrine under which the defendants fraud in concealing a cause of action tolls the statute of limitations. (Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 890.) Ordinarily, a cause of action for wrongful death accrues on the death of the decedent. However, the statute of limitations may be tolled "if the plaintiff establishes the defendant fraudulently concealed facts that would have led him to discover his potential cause of action." (Barker v. Brown & Williamson Tobacco Corp. (2001) 88 Cal.App.4th 42, 50.)
Like fraud, fraudulent concealment must be pleaded with specificity. "Because fraud is the basis of the estoppel, the same pleading and proof is required in the fraud cases, i.e., the plaintiff must show (a) the substantive elements of fraud, and (b) an excuse for late discovery of the facts." (Snapp & Associates Ins. Services, Inc. v. Robertson, supra, 96 Cal.App.4th at p. 890.) "With respect to the fraud itself, `[w]here there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud sufficient to entitle the party injured thereby to an action. [Citations.]" (Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 900.) Thus, as with any cause of action for fraud, general pleading of the legal conclusion of fraud is insufficient. (Id. at p. 901.) Rather, "`[e]very element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect." (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, superseded by statute on other grounds as stated in Californians for Disability Rights v. Mervyns, LLC (2006) 39 Cal.4th 223, 227.) "`"This particularity requirement necessitates pleading facts which `show how, when, where, to whom, and by what means the representations were tendered." [Citation.]" (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) Similarly, "the mere assertion of `reliance is insufficient. The plaintiff must allege the specifics of his or her reliance on the misrepresentation to show a bona fide claim of actual reliance." (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)
Under these standards, the SAC fails to plead fraud with specificity sufficient to state a cause of action. Plaintiffs failed to allege how, when, where, to whom, and by what means defendants alleged fraudulent representations were made (Robinson Helicopter Co., Inc. v. Dana Corp., supra, 34 Cal.4th at p. 993), and they failed to allege any specifics of their reliance (Cadlo v. Owens-Illinois, Inc., supra, 125 Cal.App.4th at p. 519). We conclude plaintiffs have failed to adequately allege fraudulent concealment.
E. Legal Disability
Plaintiffs contend they adequately pleaded legal disability sufficient to toll the statute of limitations. In the SAC, plaintiffs alleged they were legally incapacitated following decedents death. Specifically, plaintiffs alleged that after May 31, 2005, they were "in a state of shock, grief, dismay, mourning and severe emotional distress, such that they were incapacitated, and incapable of caring for themselves, conducting business affairs or understanding the nature or effects of their own, or others acts."
Section 352, subdivision (a) provides: "If a person entitled to bring an action . . . is, at the time the cause of action accrued . . . insane, the time of the disability is not part of the time limited for the commencement of the action." For purposes of section 352, the term "insane" means "a condition of mental derangement which renders the sufferer incapable of caring for his property or transacting business, or understanding the nature or effects of his acts." (Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562, 571.) A legal disability, such as infancy or insanity, "deprives a party of the right to come into court." (Hagan v. Fairfield (1961) 194 Cal.App.2d 240, 245.) In Feeley v. Southern Pacific Transportation Co. (1991) 234 Cal.App.3d 949, for example, the court held that the plaintiff was "insane" within the meaning of section 352 when he had been rendered unconscious after the assault that formed the basis for his lawsuit, and the statute of limitations was tolled during the 12 days he remained unconscious. (Feeley v. Southern Pacific Transportation Co., supra, at pp. 951-953.)
Here, plaintiffs alleged, in effect, that they were suffering from profound grief after the death of their child. We must agree with the trial court, however, that "shock, grief, dismay, mourning and severe emotional distress," even if profound, do not constitute legal insanity within the meaning of section 352 so as to toll the statute of limitations.
F. Sham Pleading Doctrine
In their original complaint, plaintiffs alleged a cause of action for negligent infliction of emotional distress. Plaintiffs alleged they had been present during defendants "wrongful acts" and "believed that [d]efendants wrongful act was causing injury to their daughter." However, plaintiffs dismissed that cause of action before the hearing on defendants demurrer to the original complaint.
The trial court sustained defendants demurrer to the SAC on the ground of the sham pleading doctrine, stating it was clear from the prior pleadings and the SAC that plaintiffs suspected wrongdoing in late May 2005. Plaintiffs contend the sham pleading doctrine did not apply to the SAC. They argue the allegations of the original pleading were not inconsistent with the allegations of the SAC, that they were not provided an adequate opportunity to explain inconsistencies, and that they provided a reasonable explanation for the amended pleadings.
1. The Sham Pleading Doctrine
As a general rule, a demurrer assumes that all factual allegations of the complaint are true. However, an exception applies when "a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings. [Citations.] In these circumstances, the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint." (Owens v. Kings Supermarket, supra, 198 Cal.App.3d at p. 384.) In Sanai v. Saltz (2009) 170 Cal.App.4th 746, 768, the court reiterated that the explanation must consist of "`"very satisfactory evidence" upon which it is "clearly shown that the earlier pleading is the result of mistake or inadvertence.""
2. Inconsistency Between Original and Amended Pleadings
Plaintiffs contend the original complaint was not in fact inconsistent with the SAC. They argue their allegation in the original complaint that they "believed that [d]efendants wrongful act was causing injury to their daughter" "never specifie[d] the date to which the allegation is specifically tied[.]" (Bolding omitted.)
We disagree with plaintiffs interpretation. The original allegation was that plaintiffs believed defendants wrongful act "was causing" injury to their daughter. The use of the progressive tense ("was causing") unambiguously indicated that plaintiffs belief was contemporaneous with their observation of defendants allegedly wrongful acts, even though no specific date was alleged in the same paragraph. Contrary to plaintiffs position, therefore, the pleadings were in fact inconsistent.
3. Applicability of Factual Allegations to All Causes of Action
Plaintiffs further contend their allegation in the original complaint that they "believed that [d]efendants wrongful act was causing injury to their daughter," "pertained only to the . . . cause of action for negligent infliction of emotional distress, and was not meant to constitute a generalized allegation relative to the accrual of the statute of limitations."
Again, we disagree with plaintiffs position. We are aware of no law—and plaintiffs have cited none—that factual allegations of a complaint may be deemed to apply only to a single cause of action. Rather, it is well established that "`[w]hile inconsistent theories of recovery are permitted [citation], a pleader cannot blow hot and cold as to the facts positively stated." (Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146.)
4. Plaintiffs Failure to Explain the Inconsistency
In opposition to the demurrer to the FAC, plaintiffs counsel provided a declaration attempting to explain the inconsistencies in the pleadings. The declaration stated that counsel had erred by including paragraphs 30 and 31 in the original complaint. The declaration stated that counsel had intended "to plead a generic Negligent Infliction of Emotional Distress Cause of Action consistent with the liberal rules of pleading under the laws of the State of California. The Third Cause of Action in plaintiffs complaint was not based on specific facts I received directly from plaintiffs regarding their beliefs or suspicions of wrongdoing on the part of defendants in providing health care to . . . decedent." The declaration further stated that, in alleging in the original complaint that plaintiffs had been present during defendants wrongful acts and that plaintiffs believed defendants wrongful act was causing injury to decedent, counsel erred, and he had intended "to meet the `contemporaneousness prong of a negligent infliction of emotional distress claim. It was never [his] intent to suggest that the plaintiffs had knowledge of the causal connection as between defendant[s] wrongdoing and the plaintiffs injury."
Paragraph 30 stated that "[p]laintiffs were present during [d]efendants wrongful acts as described above." Those "wrongful acts" included defendants failure to properly use and monitor the respiratory/ventilation equipment.
Paragraph 31 alleged that "[p]laintiffs believed that [d]efendants wrongful act was causing injury to their daughter," and, as a result, they suffered serious emotional distress.
Plaintiffs contend they provided a reasonable explanation for amending their pleadings and cite a number of cases in which courts held that the sham pleading doctrine does not apply when the plaintiff has satisfactorily explained inconsistencies. However, the proffered explanation did not constitute the required showing of "`very satisfactory evidence" upon which it was "`clearly shown that the earlier pleading [was] the result of mistake or inadvertence." (American Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, 879.) Notably, counsels declaration did not state that the facts pleaded were not true, but rather that the allegations were not based on "specific facts [he] received directly from plaintiffs" and that the allegations were not intended to suggest that plaintiffs had knowledge of a causal connection between defendants conduct and plaintiffs injury.
We conclude the trial court did not abuse its discretion in refusing to allow plaintiffs a third attempt to amend their pleading.
5. Adequate Opportunity to Explain Inconsistencies
In their opening brief, plaintiffs assert the trial court was asked to provide them "the opportunity to `correct ambiguous statements of fact, . . . but it failed to do so." In their reply brief, plaintiffs expand on their argument that they were never afforded an adequate opportunity to explain changes in their pleadings, and the trial court should have permitted such explanation up to and including the time of trial.
The record belies plaintiffs argument that they were denied an adequate opportunity to explain inconsistencies in their pleadings. At the hearing on the demurrer to the original complaint, the trial court raised the sham pleading issue: "If the plaintiffs do amend their complaint to allege[] a delayed discovery, the defendants can again demur[] and request the Court take judicial notice of prior pleadings. And the Court can then resolve whether the allegations of a delayed discovery were a sham pleading. Theyre probably going to have some difficulty getting around it."
At the hearing on the demurrer to the FAC, the court observed: "In the original complaint, of which the Court takes judicial notice, the plaintiffs allege that they were present when defendant did wrongful acts, and they believed at the time such acts were causing injury to their daughter. The amended complaint may not now contradict such an admission." The court reiterated that plaintiffs were required to explain, in their pleading, why they could not discover the negligent cause of injury until June 30 when they had previously alleged they had "observed tortious acts causing injury over a month earlier." The court noted that although plaintiffs counsel argued he had drafted the original complaint without information from plaintiffs, that explanation was insufficient.
Plaintiffs also argue that even if their pleadings were inconsistent, that fact created only an evidentiary issue unsuitable for resolution at the demurrer stage. We disagree. The law is well established that "`[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. [Citation.] [Citations.]" (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.)
IV. DISPOSITION
The judgment is affirmed. Costs shall be awarded to defendants and respondents.
We concur:
McKINSTER, J.
RICHLI, J.