Opinion
G060189
12-21-2022
NAZILA SAFAVI, Plaintiff and Appellant, v. KRISTEN RITZAU et al., Defendants and Respondents
The Appellate Law Firm, Beragere Allen-Blaine, Aaron Myers, and Mark Kuntze for Plaintiff and Appellant. Ford, Walker, Haggerty &Behar, James D. Savage, Jennie L. Hertzog, and Ashley S. Loeb for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2019-01065460, Gregory H. Lewis, Judge. Affirmed.
The Appellate Law Firm, Beragere Allen-Blaine, Aaron Myers, and Mark Kuntze for Plaintiff and Appellant.
Ford, Walker, Haggerty &Behar, James D. Savage, Jennie L. Hertzog, and Ashley S. Loeb for Defendants and Respondents.
OPINION
GOETHALS, J.
Nazila Safavi sued her dentist, Kristen Ritzau, D.D.S., and Dr. Ritzau's practice for malpractice and related claims arising from injuries Safavi allegedly sustained from the negligent placement of dental crowns. The dentist moved for summary judgment, asserting Safavi's claims were time-barred by the one-year limitations period applicable to professional negligence claims against healthcare providers (see Code Civ. Proc., § 340.5). The trial court agreed, granted the dentist's motion, and entered judgment against Safavi.
All further statutory references are to this code.
We affirm. The parties agree section 340.5's one-year limitations is applicable here; that statutory period begins to run when the plaintiff discovers or reasonably should have discovered that someone's wrongdoing likely caused his or her injury. In this case, the undisputed facts establish that Safavi knew of her injury in 2017 and suspected her dentist was to blame, yet she waited until 2019 to file her complaint. Since Safavi failed to present any evidence establishing a triable issue of material fact regarding her compliance with the statute of limitations, summary judgment was proper.
FACTS
Dr. Ritzau is a dentist. She is also the owner of Kristen Ritzau, D.D.S., Inc., doing business as Shoreline Dental Studio (Shoreline).
Safavi received dental treatment at Shoreline from June 2016 through February 2018. In addition to routine checkups and cleanings, Safavi's treatment included the placement of three crowns: the crown on tooth No. 18 was placed in June 2016; the crown on tooth No. 31 was placed in November 2016; and the crown on tooth No. 19 was placed in February 2017.
In February 2017, Safavi began to experience significant pain in her mouth, and she had the sensation that her teeth were misaligned. By April 2017, she concluded her "symptoms had been caused by something the [dentist] did wrong," and she posted a negative review on Yelp criticizing the care she received at Shoreline. After speaking with Dr. Ritzau, Safavi agreed to take down the review and return to Shoreline for additional treatment. Safavi nonetheless continued to believe Dr. Ritzau and Shoreline were to blame for her discomfort.
In May and June 2017, Shoreline replaced the crown on tooth No. 31, but
Safavi continued to experience pain. Safavi decided not to attend an October 2017 appointment at Shoreline because, in her words, she had "lost faith in the treatment [Shoreline was] providing."
Safavi's final visit to Shoreline was in February 2018 for a checkup and cleaning. She did not return to Shoreline for any further treatment.
Safavi asserts in her supplemental briefing that she received care at Shoreline until August 2018, but the record belies that assertion. Safavi alleged in her first amended complaint that her last visit to Shoreline was in February 2018. Also, Safavi did not dispute fact Nos. 8 or 46 in Defendants' separate statement of undisputed facts (SSUF), which state that "Plaintiff received dental treatment at Shoreline from June 2016 to February 2018," "Plaintiff's final office visit was on February 23, 2018," and "Plaintiff did not return to Shoreline for further treatment after that date."
In November 2018, Safavi sought a second opinion from another dentist, who advised her that the negligent care she had received at Shoreline was the cause of her injuries.
In January 2019, Safavi served Shoreline with a notice of intent to sue under section 364. She filed a complaint against Dr. Ritzau and Shoreline (collectively, Defendants) in April 2019, asserting Defendants had placed the crowns improperly and caused injuries to her teeth, jaw, muscles, and face. In her first amended complaint, Safavi alleges causes of action against Defendants for professional negligence and lack of informed consent. Defendants raised the statute of limitations as an affirmative defense in their answer.
Section 364 requires that before commencing an action based upon a healthcare provider's professional negligence, the plaintiff must give the defendant at least 90 days' notice of his or her intent to sue.
Although the caption of Safavi's first amended complaint describes her second cause of action as one for "Lack of Informed Consent (Medical Battery)," she concedes in her supplemental briefing that this cause of action is for lack of informed consent, not medical battery. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 [discussing distinction between those two claims].)
After conducting some written discovery and taking Safavi's deposition, Defendants moved for summary judgment, arguing among other things that Safavi's claims were barred by the statute of limitations, section 340.5. Safavi opposed the motion, but her memorandum of points and authorities did not address the statute of limitations issue and instead focused exclusively on the question of causation.
The trial court found Safavi's claims were time-barred, granted Defendants' motion, and entered judgment for Defendants. Safavi appealed.
DISCUSSION
"A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. [Citation.] The defendant can meet that burden by either showing the plaintiff cannot establish one or more elements of his or her cause of action or there is a complete defense to the claim." (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889 (Carlsen).) "The expiration of the applicable statute of limitations is one such complete defense." (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 965.) "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).)
"Once the defendant meets [its initial] burden, the burden shifts to the plaintiff to present evidence establishing a triable issue exists on one or more material facts." (Carlsen, supra, 227 Cal.App.4th at p. 889.) "'[T]o meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists ...."'" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
A motion for summary judgment is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) We review a grant of summary judgment de novo. (Nava v. Saddleback Memorial Medical Center (2016) 4 Cal.App.5th 285, 289.)
The parties agree the statute of limitations applicable to both claims is section 340.5, which sets forth the limitations period applicable to professional negligence claims against dentists. (See also Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391 ["section 340.5 sets forth the applicable statute of limitations for dental malpractice"]; Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 698 [section 340.5 applies to negligence claims based on medical acts performed without consent].)
Medical battery claims, by comparison, are subject to a two-year statute of limitations. (See § 335.1; Daley v. Regents of University of California (2019) 39 Cal.App.5th 595, 602-606.) As noted, however, Safavi conceded in her supplemental briefing that her second cause of action is for lack of informed consent, not medical battery, and thus is subject to section 340.5.
Section 340.5 provides that a plaintiff must commence his or her action "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 plaintiff "must satisfy the requirements of both the one-year and the three-year limitations periods." (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189.) It is undisputed that Safavi filed this action within three years of the dental procedures that allegedly caused her injuries, so only the one-year limitations period is at issue.
In evaluating the time at which a claimant "discover[ed], or through the use of reasonable diligence should have discovered, the injur[ies]" giving rise to her complaint (§ 340.5), our analysis is guided by the discovery rule articulated by the Supreme Court in Jolly, supra, 44 Cal.3d 1103. (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1299 (Knowles) ["it is well established that Jolly's discussion of the discovery rule applies to actions involving section 340.5"].)
Under that standard, "the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.... [T]he limitations period begins once the plaintiff '"'has notice or information of circumstances to put a reasonable person on inquiry ....'"' [Citations.] A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. 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." (Jolly, supra, 44 Cal.3d at pp. 1110-1111.)
Applying that rule here, we conclude Safavi's claims are time-barred under section 340.5 because she suspected her injury was caused by Defendants' wrongdoing as early as 2017, but did not file her lawsuit until 2019. It is undisputed that Defendants placed the crowns on teeth Nos. 18, 19, and 31 between June 2016 and February 2017; Safavi began to experience pain as a result of that treatment by February 2017; by April 2017, Safavi had come to believe her symptoms were caused by something Defendants had done wrong, as demonstrated by her negative Yelp review posted on April 5, 2017; although Safavi agreed to return to Shoreline for additional treatment in June 2017, she continued to believe Defendants were to blame for her discomfort and other symptoms; and Safavi had lost faith in Defendants' treatment by October 2017. Safavi did not serve her intent to sue or file her complaint until 2019, well over a year after she began to suspect her injury was caused by Defendants' wrongdoing. Her claims are therefore time-barred.
In her verified response to Dr. Ritzau's special interrogatory asking Safavi to state the date she first became aware of each injury she experienced as a result of the defendant's care or treatment, Safavi responded "February 2017."
Safavi did not dispute SSUF fact No. 33, which states, "Plaintiff wrote [the Yelp] review because she believed her symptoms had been caused by something the defendants did wrong during their treatment."
Safavi did not dispute SSUF fact No. 35, which states, "Even though she agreed to come into the office [after April 2017], plaintiff still believed the defendants were to blame for her complaints."
Safavi testified at deposition that she decided not to go to her October 2017 appointment because she had "lost faith in the treatment that they were providing," and she did not dispute SSUF fact No. 43 to that effect.
Safavi insists the limitations period did not begin to run until November 2018 when she obtained a second opinion from another dentist and learned the treatment she had received at Shoreline was substandard. However, "courts have rejected the argument that the limitations period does not begin to run until a plaintiff learns the specific causal mechanism by which he or she has been injured." (Knowles, supra, 118 Cal.App.4th at p. 1298.) The plaintiff "need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period." (Id. at p. 1295.) Here, the record unequivocally establishes that in 2017, Safavi suspected Defendants had acted negligently; that suspicion triggered the running of the limitations period.
Safavi alternatively contends she held off on filing a lawsuit based on Defendants' April 2017 assurances that her issues could be resolved through additional treatment, and Defendants are therefore equitably estopped from asserting the statute of limitations as a defense. (See DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe &Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59 [estoppel applies '"where the conduct of one side has induced the other to take such a position that it would be injured if the first should be permitted to repudiate its acts"'].) However, Safavi cites nothing in the record to support her contention that she relied on any statements by Defendants, and as best we can tell, she never raised that argument in the trial court. Accordingly, we treat that argument as forfeited. (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548 [""'theories not raised in the trial court cannot be asserted for the first time on appeal'""]; WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 ["we may decide that the appellant has forfeited a point urged on appeal when it is not supported by accurate citations to the record"]; Zimmerman, Rosenfeld, Gersh &Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1488 ["appellate court can deem an argument raised in an appeal from a grant of summary judgment waived if it was not raised below and requires consideration of new factual questions"].)
Even if Safavi had properly raised that argument below and presented evidence that she relied on Defendants' April 2017 assurances, her claims would still be time-barred. As noted above, Safavi does not dispute she had lost faith in Defendants' treatment by October 2017. Thus, the limitations period expired no later than October 2018, long before Safavi filed her complaint.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
WE CONCUR: O'LEARY, P. J., BEDSWORTH, J.