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APPEAL from a judgment of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Affirmed. Russell Rubin for Plaintiff and Appellant. Kamel & Maxwell, Brian P. Kamel, John T. Maxwell, and Marissa F. Feinstein for Defendant and Respondent Donald M. Brown. Law Offices of Robert B. Zaro, John J. Sillis, and Robert B. Zaro for Defendant and Respondent Eugene Kim. > In this dental malpractice action, the trial court granted defendants’ motions for summary judgment based on the expiration of the one-year statute of limitations under Code of Civil Procedure section 340.5.[1] Plaintiff contends on appeal that there are triable issues of material fact concerning the date on which she knew or should have known of her injury. Finding no triable issues of material fact, we affirm. On October 29, 2007, plaintiff and appellant Sandjery Ruffin filed a dental malpractice lawsuit against defendants and respondents Donald M. Brown, D.D.S., doing business as Children’s Dental Building (erroneously sued as Donald M. Brown Children’s Dental), and Eugene Kim, D.D.S. (sued as Doe 1). The complaint alleged that on June 27, 2006, Dr. Kim negligently injected plaintiff with an anesthesia (Lidocaine) that he knew or should have known would cause her to suffer a severe allergic reaction. As a result of receiving the anesthesia, plaintiff allegedly suffered seizures and other injuries. The record is undisputed that before the June 27, 2006 incident, plaintiff had informed defendants on several occasions, and at least twice in writing, that she was allergic to Lidocaine. It is also undisputed that defendants had noted plaintiff’s allergy to Lidocaine in her dental records. Defendants separately moved for summary judgment based on the expiration of the one-year statute of limitations under section 340.5, which applies to actions “for injury or death against a health care provider based upon such person’s alleged professional negligence.” (§ 340.5.) The statute provides that the complaint must be filed within “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.) Defendants argued that in this case, the one-year statute applied because, according to plaintiff’s deposition testimony, she knew within moments of receiving the anesthetic that Dr. Kim had injected her with Lidocaine.[2] Defendants contended that even assuming the one-year limitations period was extended by 90 days under section 364, subdivision (d), the complaint was still untimely.[3] In opposition, plaintiff argued that the one-year period did not necessarily commence when she received the injection, because there is evidence that she was unaware that she had been given Lidocaine until she obtained her dental records from defendants in February 2007. She relied on her purportedly conflicting testimony that, on the one hand, she had an immediate awareness of being injected with Lidocaine, and, on the other hand, she had a seizure-related memory problem that lasted until Halloween 2006. Plaintiff argued that in light of her memory problem, a jury could reasonably infer that she did not discover that she had been injected with Lidocaine until she saw her dental chart in February 2007. Given her purportedly conflicting testimony, plaintiff contended that the record failed to establish that the statute of limitations had commenced, as a matter of law, when she received the injection. The trial court granted both motions for summary judgment. It found plaintiff’s testimony regarding her memory loss insufficient to contradict her testimony “that she had actual knowledge that [L]idocaine had been administered to her on June 27, 2006. . . . Plaintiff’s counsel’s argument that she had memory loss problems, etc. is not supported by plaintiff’s declaration or expert opinion. Even if the expiration of the statute of limitations was extended by 90 days by the serving of her notice of intent to sue letter on June 22, 2007, the limitations period expired on September 25, 2007. The complaint was filed 37 days late.” In these consolidated appeals from the judgment, plaintiff argues that triable issues of material fact exist as to the date on which she knew or should have known of her injury. DISCUSSION A summary judgment motion “shall be granted if all papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (§ 437c, subd. (c).) In moving for summary judgment, a defendant has met his burden of showing the action has no merit by demonstrating that one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Once the moving party’s burden is met, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) For this purpose, the plaintiff must provide evidence that is substantial and more than mere speculation to establish a triable issue of material fact. ( Cal.App.4th 151, 163.) Our review of the grant of summary judgment is de novo, and “we must view the evidence in a light favorable to plaintiff as the losing party.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Plaintiff contends that the one-year limitations period did not commence until she “obtained the information that she was in fact injected with Lidocaine, as it would have been inappropriate to file suit before that information was confirmed.” She argues that summary judgment was inappropriate because her deposition, which was taken after her memory had returned, is silent as to the date on which she remembered being injected with Lidocaine. Defendants respond that because the evidence is undisputed that plaintiff knew that her injury was caused by wrongdoing on June 27, 2006, the limitations period began to run on that date and was not tolled until her medical records were obtained. (See Massey v. Mercy statute of limitations began to run when plaintiff had a suspicion of wrongdoing, and not when she obtained her medical records. Under the discovery rule, the one-year limitations period commences when the plaintiff suspects or should suspect that her injury was caused by wrongdoing: “[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 v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111; Rose v. Fife (1989) 207 Cal.App.3d 760, 771 [“the one-year period begins to run when the plaintiff injury was caused by wrongdoing, i.e., that someone had done something wrong to her”].) In this case, the record is undisputed that plaintiff had a suspicion of wrongdoing on the date that she received the injection. Even assuming that when she received the injection, plaintiff was unaware that the drug was Lidocaine, plaintiff knew that she had been given an injection of some kind that caused her to suffer seizures. Under the law, this was sufficient to place plaintiff on inquiry notice on the date of the incident, and she was required to file suit within one year of that date. The summary judgment is affirmed. Defendants are awarded their costs. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS SUZUKAWA, J. We concur: WILLHITE, Acting P.J. MANELLA, J. Publication Courtesy of San Diego County Legal Resource Directory. Analysis and review provided by El Cajon Property line attorney. San Diego Case Information provided by www.fearnotlaw.com id=ftn1> [1] All further statutory references are to Code of Civil Procedure. Section 340.5 provides in relevant part: “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. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” id=ftn2> [2] Plaintiff testified that she first learned of her allergy to Lidocaine when she had her first allergic reaction to the drug in her 20’s. She testified that on June 27, 2006, she told the receptionist that she was allergic to Lidocaine, and had asked Dr. Kim, “‘That’s not Lidocaine, right’ And he said, ‘Let go and I — let me just — don’t grab my hand.’ And he says, ‘Just open, it will be okay.’ And he injected me on one side. And then, he put another one and then the assistant came in.” From her prior allergic reaction, plaintiff immediately knew “what was going to happen and I started crying. [¶] . . . [¶] . . . I sat there for a minute. I couldn’t move . . . I knew what had happened . . . I couldn’t respond and I had tears in my eyes; and he was about to drill, but my head just kind of, like, flopped. . . . I . . . started tasting, like metal — my mouth. And then, I believe after that I had a seizure.” Plaintiff heard a lot of screaming and then heard “the paramedics talking to the doctor.” The paramedics “were quite angry. They asked him for the vials that he gave me and he gave them to them, and he said, ‘Right here. What is this in the chart It says — why would you give her something that she can’t have. So she has an allergy . . . .” Based on the conversation between Dr. Kim and the paramedics, plaintiff understood that Dr. Kim had given her Lidocaine: “Q Okay. And the doctor admitted that he gave you Lidocaine at that point [¶] A Yes. [¶] Q And you heard him say that [¶] A Yes. [¶] Q You knew the doctor was not supposed to give you Lidocaine, correct [¶] A Yes.” After being taken to the emergency room, plaintiff remembered nothing until she found herself in a different hospital room four days later. id=ftn3> [3] Section 364 provides in relevant part: “(a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action. [¶] (b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. [¶] . . . [¶] (d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” |
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