Filed 9/15/26 Gurovich v. West Hills Surgical Center CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DMITRY GUROVICH, B342789
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV39823)
v.
WEST HILLS SURGICAL
CENTER, LTD.,
Defendant and Respondent.
APPEAL from a judgment and orders of the Superior Court
of Los Angeles County, Valerie Salkin, Judge. Affirmed in part
and reversed in part.
Kowal Law Group, Timothy M. Kowal, Teddy T. Davis,
Ryan Merker; Law Office of Joseph M. Kar and Joseph M. Kar for
Plaintiff and Appellant.
Theodora Oringher, Todd C. Theodora, Adam G. Wentland,
Deanna Rafla-Yuan and Anthony F. Witteman for Defendant and
Respondent.
__________________________
Dmitry Gurovich appeals from a judgment entered after
the court granted West Hills Surgical Center, Ltd.’s (West Hills)
motion for summary judgment. Gurovich underwent a
colonoscopy at West Hills. He claims that during the procedure,
his doctor performed a “hemorrhoidal banding” procedure despite
Gurovich’s previous oral refusal to consent to it. Gurovich
contends he suffered serious physical and emotional harm as a
result.
Gurovich sued the doctor for negligence and battery. More
than two years later, at the doctor’s deposition, Gurovich learned
that the doctor was not a board-certified gastroenterologist as he
had believed. Gurovich sought leave to add several “hospital-
defendants,” including West Hills, alleging they had
misrepresented the doctor was board-certified or specialized in
gastroenterology. Based on these alleged misrepresentations he
sought to amend his complaint to add causes of action against
West Hills (and the other defendants) for negligence/negligent
infliction of emotional distress, battery, fraud, and a violation of
the Consumer Legal Remedies Act (CLRA). He also sought to
plead punitive damages claims against all the defendants, but
because they were health care providers, he had to satisfy Code of
Civil Procedure section 425.131 by demonstrating a substantial
probability of success on the punitive damages claims in order to
obtain leave to add them.
The trial court concluded Gurovich did not satisfy section
425.13 and thus could not plead a claim for punitive damages or
fraud allegations against the hospital-defendants. Yet despite
the court’s ruling, Gurovich filed a second amended complaint
1 Undesignated statutory references are to the Code of Civil
Procedure.
2
that included a fraud cause of action against West Hills. West
Hills demurred to the fraud cause of action (and all other causes
of action, arguing they were all based on the fraud allegations) on
the ground they were not pleaded with the requisite specificity.
The trial court sua sponte struck the fraud claim as
“improperly pleaded,” without addressing the demurrer to that
claim. The court granted the demurrer to the CLRA cause of
action because it depended on the stricken fraud cause of action.
The court denied leave to amend the fraud and CLRA causes of
action. The court overruled the demurrer to the negligence and
battery claims but subsequently granted summary judgment on
those two remaining claims, concluding they were barred by the
relevant statutes of limitation.
We conclude the trial court properly granted West Hills’s
motion for summary judgment on the negligence and battery
causes of action. With respect to the court’s denial of leave to add
a fraud cause of action against West Hills, we conclude it applied
the wrong legal standard, and therefore erred in denying
Gurovich’s motion for leave to amend to add a fraud claim. While
Gurovich’s subsequently-pleaded fraud claim and CLRA claim
were properly dismissed because they were inadequately pleaded
and subject to West Hills’s demurrer, leave to amend must be
granted because there is a reasonable possibility that Gurovich
can plead viable fraud and CLRA claims.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Surgery
In August 2019, Gurovich underwent a colonoscopy
performed by Dr. Calin Arimie at West Hills. Arimie had also
performed a colonoscopy on Gurovich in 2009. West Hills is an
ambulatory surgery center in West Hills, California, with more
3
than 90 participating physicians and partners who provide
treatment in various specialties, including gastroenterology.
On the morning of his scheduled colonoscopy, Gurovich
signed a West Hills form titled “Informed Consent to Treat and
Disclose Information.” The form stated Gurovich consented to
“the performance of operations and procedures in addition to or
different from those now planned whether or not arising from
presently foreseen conditions, which the doctor named below or
his associates or assistants may consider necessary or advisable
during the operation or procedures. I voluntarily request Dr.
CALIN ARIMIE as my physician, and such associates, technical
assistance and other health care providers as they may deem
necessary, to treat my condition. I understand that the following
surgical, medical, and/or diagnostic procedures are planned for
me and I voluntarily consent and authorize those procedures:
COLONOSCOPY AND ESOPHAGOGASTRODUODENOSCOPY
WITH POSSIBLE BIOPSY, POSSIBLE POLYPECTOMY,
POSSIBLE ELECTROCAUTERY, POSSIBLE INJECTION,
POSSIBLE DILATION, POSSIBLE BANDING AND POSSIBLE
FOREIGN BODY REMOVAL.”
Gurovich contends that at his initial appointment with
Arimie in June 2019, he had expressly refused to consent to a
specific procedure known as hemorrhoidal banding. Despite that
refusal, Arimie performed hemorrhoidal banding during the
colonoscopy.
Gurovich asserts that when he awoke after the procedure,
he “immediately noticed severe and massive pain in and around
anus [sic] and rectum.” He asked a nurse why he was
experiencing so much pain, and she told him that Arimie had
banded seven hemorrhoids. Gurovich contends the procedure
4
exceeded the scope of his consent. He asserts the procedure left
him with permanent injuries and disfigurement as well as severe
emotional distress.
B. Gurovich’s Initial Complaints and Motion for Leave To File
a Second Amended Complaint
In October 2020, Gurovich sued Arimie and inSite
Digestive Health Care2 (formerly known as Southern California
Gastroenterology Associates) for negligence and battery based on
Arimie’s performance of the hemorrhoidal banding procedure
without Gurovich’s consent.
In March 2023, Gurovich moved for leave to file an
amended complaint, seeking for the first time to add West Hills
and Doctor A Plus Inc. as defendants and to add causes of action
against all the defendants for “negligence/NIED” (i.e., negligent
infliction of emotional distress), battery, fraudulent
misrepresentation, and a CLRA violation. Gurovich asserted
that, during Arimie’s deposition in January 2023, he learned for
the first time that Arimie had never been a board-certified
gastroenterologist.
Gurovich’s motion stated, “Had the Defendants [including
West Hills] not lied about the doctor’s true qualifications and told
Plaintiff the truth, Mr. Gurovich would never have consented and
would have gone elsewhere. [Citation.] Defendants knew that
and had an obligation [to] validate the credentials but
perpetuated the lie instead. Learning of Defendant Arimie’s false
qualification and being duped into believing he was being seen by
a double board certified specialist caused extreme emotional
2 InSite is a general partnership of physicians, including
Arimie and his alleged alter ego corporation, Doctor A Plus Inc.
5
distress to Plaintiff as alleged and delayed discovery of the new
causes of action/counts and the additional parties.”
Gurovich’s attorney submitted a declaration attaching “true
and correct copies” of several websites, including “West Hills
Surgical Center’s webpage for Calin Arimie, MD.”3 The website
PDF did not include a URL, but displayed the West Hills Surgical
Center logo, Arimie’s name, and the word “Gastroenterology”
beneath his name. The website also listed “Gastroenterology” as
a “Specialty.”
The motion also sought to add a claim for punitive damages
against all the defendants. It asserted Gurovich met his burden
under section 425.13 to show a substantial probability of
prevailing on his punitive damages claim “given the outright
public fraud employed to drive unsuspecting patients and the
public to believe Defendant Arimie was a specialist dual board
certified when he never ever was.”
The proposed amended complaint alleged that, from 2012
onward, Arimie, Doctor A Plus Inc., inSite, and West Hills “hired,
retained, instructed, and/or otherwise allowed or ratified” public
statements falsely holding out Arimie as a gastroenterology
specialist and dual-board-certified physician in internal medicine
and gastroenterology, as well as a member of the American
Gastroenterological Association (AGA) and American College of
Gastroenterology (ACG). The fraud cause of action alleged that,
3 The declaration supporting Gurovich’s motion also attached
a copy of “West Hills Hospital and Medical Center webpage for
Calin Arimie MD,” which stated Arimie had a “Specialty” in
“Gastroenterology.” However, Gurovich presented no evidence
that this was the same entity as defendant West Hills Surgical
Center.
6
from 2012 onward, the “defendants” made these
misrepresentations to the public and prospective patients
through websites, press releases, social media, advertising,
marketing, promotions, and word of mouth. Gurovich claimed he
“heard and/or read these representations on the websites
https://www.findatopdoc.com/doctor/8136624-Calin-Arimie-
gastroenterologist-Los-Angeles-California-91307,
www.insitedigestive.com, https://westhillssurgicalcenter.com/, as
well as heard them from his father prior to him passing away.”
Gurovich alleged the representations were false because
Arimie was not double-board-certified, was not board-certified in
gastroenterology, had allowed his internal-medicine certification
to lapse, was not a gastroenterology specialist or
gastroenterologist, and was not a member of the AGA or ACG,
but was instead “a medical doctor [who] merely limits his practice
area to gastroenterology.” He further claimed that the
defendants knew the representations were false and intended to
induce patients to rely on them. “Plaintiff was fraudulently
induced to undergo unwanted and unauthorized medical
procedures and screening, to give consent thereto based on fraud
and the deception hereinabove alleged that he would not have
otherwise agreed to or permitted.” If he “had known the actual
facts, he would not have taken such action, would not have even
been a patient of any of the Defendants and would have gone
elsewhere.” In a declaration, Gurovich described reading that
Arimie was double-board-certified on the inSite website but did
not mention West Hills’s website.
Gurovich’s CLRA claim was based on the same alleged
misrepresentations as his fraud claim.
7
In May 2023, the trial court granted Gurovich’s motion for
leave to amend except ordered him to omit the allegations of
fraud and the claims for punitive damages against the hospital-
defendants. (The fraud allegations and punitive damages claims
against Arimie were permitted.) The court found “Gurovich fails
to meet the requirements under … section 425.13 because he has
not shown a substantial probability of success on the merits of his
punitive damages claims against the hospital-defendants.” The
court reasoned Gurovich did not show he had a substantial
probability of succeeding on the merits of his fraud claim against
the defendants other than Arimie because he had not shown that
any of the hospital-defendants “affirmatively misrepresented or
concealed any fact regarding Arimie’s certification status.” The
court concluded Gurovich had not shown that these defendants
intended to induce his reliance on the alleged misrepresentations
or that he relied on those websites in selecting Arimie as his
physician. The court further concluded Gurovich failed to show a
substantial probability that he could prove the hospital-
defendants acted maliciously or oppressively. The court ordered
Gurovich to file his “Second Amended Complaint without
allegations of fraud and punitive damages” against any of the
hospital-defendants, including West Hills.
Gurovich filed the second amended complaint that same
day but did not remove the fraud allegations as the court had
ordered.
C. West Hills’s Demurrer
In July 2023, West Hills demurred to the second amended
complaint, arguing that although each cause of action sounded in
fraud, none was pleaded with the specificity required for a fraud
claim.
8
In December 2023, the trial court overruled the demurrer
as to the first and second causes of action for negligence and
battery. But on its own motion and without leave to amend, the
court struck Gurovich’s third cause of action for fraud. While
noting the complaint failed to identify “any single statement by
[West Hills] or its representatives which was false,” the court
indicated it did not need to address “the insufficiency of Plaintiff’s
fraud allegations” because it had “already considered the issue of
whether Plaintiff shall be allowed to plead a fraud cause of action
against [the hospital-defendants].” Because the court “already
specifically declined to extend to Plaintiff leave to amend his
pleadings to state a fraud cause of action” based on Gurovich’s
failure to show a substantial probability of success on the merits,
the fraud cause of action “constitute[d] an improperly pleaded
matter.” The court therefore struck Gurovich’s cause of action for
fraud against the hospital-defendants “pursuant to its authority
to strike out an improperly asserted matter in any pleading.”
The court also sustained, without leave to amend, the
demurrer to Gurovich’s cause of action for violation of the CLRA.
The court reasoned, “Because Plaintiff’s CLRA cause of action
sounds in fraud and is reliant on Plaintiff’s [fraud] cause of
action, the CLRA claim is without factual support and cannot
proceed.”
D. West Hills’s Summary Judgment Motion
In July 2024, West Hills filed a motion for summary
judgment on the two remaining causes of action,
negligence/negligent infliction of emotional distress and battery,
in part arguing both claims were barred by the applicable
statutes of limitations.
9
West Hills proffered evidence Gurovich did not add it as a
defendant until May 2023, more than three years after his
colonoscopy in August 2019. Because the statute of limitations
for a negligence claim against a healthcare provider is three
years (§ 340.5) and for battery is two years (§ 335.1), West Hills
asserted both claims were time-barred.
In opposition, Gurovich submitted a declaration in which
he stated that when he awoke from the colonoscopy procedure on
August 2, 2019, he “immediately noticed severe and massive pain
in and around anus [sic] and rectum.” He asked a nurse why he
was in so much pain, and the nurse explained that Arimie
banded seven hemorrhoids, which Gurovich contends was beyond
the scope of his consent.
However, Gurovich argued the statute of limitations did
not begin to run until January 2023, when he first learned at
Arimie’s deposition that Arimie “was a fake certified doctor, and
that [West Hills] engaged in conduct to promote that doctor’s fake
credentials and encourage that misconduct.” Gurovich contended
that under the delayed discovery rule, the claims did not accrue
until West Hills’s wrongdoing was uncovered in 2023.
The trial court granted West Hills’s motion. The court
rejected the application of the delayed discovery rule to the
negligence cause of action that was governed by the statute of
limitations in section 340.5. The court concluded the statute of
limitations was three years from the date of injury or one year
after the date of discovery, “ ‘whichever occurs first.’ ” The court
concluded three years “had already elapsed from the date of
Plaintiff’s injury before Plaintiff filed his claim against West
Hills. Plaintiff cannot rely on the delayed discovery rule to save
his cause of action because the 3-year date had already ‘occurred
10
first.’ ” The court noted Gurovich had made no argument and
presented no evidence to show one of the limited tolling
exceptions under section 340.5 applied.
The court concluded the battery cause of action was also
barred by the two-year statute of limitations under section 335.1,
and Gurovich had not shown “any grounds for claiming delayed
discovery” of this claim. The court reasoned Gurovich’s battery
claim against West Hills stemmed from the offensive touching
Gurovich alleged Arimie committed against him. The court relied
on Gurovich’s declaration, which confirmed that in August 2019
he “immediately knew and understood that the banding
procedure had been performed when he woke up from surgery,
thus commencing his limitations period.” Thus, the statute of
limitations was not extended by the discovery rule, and his claim
accrued in August 2019.
Gurovich timely appealed from the judgment entered in
favor of West Hills.
DISCUSSION
A. The Court Did Not Err in Granting West Hills’s Motion for
Summary Judgment on the Negligence and Battery Claims
Based on Statute of Limitations Grounds
1. Summary judgment standards and standard of
review
We review summary judgment rulings de novo. (Gonzalez
v. Mathis (2021) 12 Cal.5th 29, 39.) In so doing, we “ ‘liberally
construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of
that party.’ ” (Ibid.) “Summary judgment is appropriate only
‘where no triable issue of material fact exists and the moving
11
party is entitled to judgment as a matter of law.’ ” (Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607,
618; see § 437c, subds. (c) & (f).) “ ‘The plaintiff ... shall not rely
upon the allegations or denials of its pleadings to show that a
triable issue of material fact exists but, instead, shall set forth
the specific facts showing that a triable issue of material fact
exists as to the cause of action or a defense thereto.’ ” (Casarez v.
Irigoyen Farms, Inc. (2025) 114 Cal.App.5th 873, 881; see § 437c,
subd. (p)(2).)
“The statute of limitations operates in an action as an
affirmative defense.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th
383, 396; see Gutierrez v. Tostado (2025) 18 Cal.5th 222, 231.)
“The defendant bears the initial burden of proving the plaintiff’s
claims are barred by the applicable statute of limitations.
[Citations.] Thereafter, the burden shifts to the plaintiff to
demonstrate the plaintiff’s claims survive based on one or more
nonstatutory exceptions to the basic limitations period, if
applicable.” (Garst v. Tehama County Flood Control & Water
Conservation Dist. (2026) 121 Cal.App.5th 507, 523; accord, Aryeh
v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197
(Aryeh); Glue-Fold, Inc. v. Slautterback Corp. (2000)
82 Cal.App.4th 1018, 1030; see § 437c, subd. (p)(2)).) “ ‘The
application of the statute of limitations on undisputed facts is a
purely legal question [citation]; accordingly, we review the [trial
court’s] rulings de novo.’ ” (Garst, at p. 523; accord, Filosa v.
Alagappan (2020) 59 Cal.App.5th 772, 778 (Filosa) [“Although
application of the statute of limitations is normally a question of
fact, the question becomes one of law when the evidence is
susceptible of only one reasonable conclusion.”].)
12
2. The negligence cause of action is untimely under
section 340.5
Section 340.5, part of the Medical Injury Compensation
Reform Act (MICRA, Stats. 1975, 2d. Ex. Sess. 1975-1976, § 1),
provides the statute of limitations applicable to Gurovich’s
negligence claim: “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.”4 “[T]o
avoid the bar of the statute of limitation, his action must have
been brought on the earlier date of three years after his injury or
one year after he discovered the injury.” (Filosa, supra,
59 Cal.App.5th at p. 778.) Thus, “[i]rrespective of the one-year
provision of section 340.5, its three-year provision ‘provides an
outer limit which terminates all malpractice liability and it
commences to run when the patient is aware of the physical
manifestations of her injury without regard to awareness of the
negligent cause.’ ” (Artal v. Allen (2003) 111 Cal.App.4th 273,
282, italics omitted; accord, Nichols v. Alghannam (2026)
118 Cal.App.5th 726, 734 (Nichols).)
4 Section 340.5 further provides: “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.” In opposing summary judgment, Gurovich did
not assert that any of these tolling provisions applied to extend
the statute of limitations. Accordingly, he has forfeited the
argument.
13
Gurovich contends the trial court erred in granting
summary judgment on his negligence claim against West Hills on
the ground that it was time-barred under section 340.5. The
court determined there was no factual dispute that the date of
Gurovich’s injury was more than three years before he added
West Hills as a defendant. The trial court was correct.
Gurovich’s “negligence/NIED” claim against West Hills
(and all the other defendants) alleges their conduct “fell below the
common and professional standards of care … in the manner of
advertising, marketing, and/or promotion of Defendant Arimie,
which lured Plaintiff by misleading him and deprived Plaintiff of
the right to accurate advance knowledge” to allow him to give
proper informed consent to the surgical procedure that occurred
on August 2, 2019. As a result, Gurovich was permanently
injured and disfigured and suffered damages and severe
emotional distress.5
West Hills met its initial burden to demonstrate the claim
was time-barred under section 340.5. West Hills pointed to the
allegations in the second amended complaint that Gurovich
suffered injuries on August 2, 2019, when Arimie performed the
procedure to which Gurovich had not consented. (See Minish v.
Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456 [“A
defendant may rely on judicial admissions in moving for
summary judgment.”]; Castillo v. Barrera (2007) 146 Cal.App.4th
1317, 1324 [“ ‘A defendant moving for summary judgment may
5 The complaint also alleges that the other defendants (but
not West Hills) were liable for negligence because their conduct
fell below the ordinary standard of care by allowing, performing,
assisting or otherwise providing services or facilities for the
medical procedure that exceeded the scope of Gurovich’s consent.
14
rely on the allegations contained in the plaintiff’s complaint,
which constitute judicial admissions. As such they are conclusive
concessions of the truth of a matter and have the effect of
removing it from the issues.’ ”].) Gurovich did not file his
complaint against West Hills until May 8, 2023, more than “three
years after the date of injury.” (§ 340.5.)
The burden therefore shifted to Gurovich to identify a
triable issue of material fact on whether Gurovich sued West
Hills within three years of the “date of injury.” (See § 437c,
subd. (p)(2).) Gurovich did not satisfy that burden.
In his declaration submitted in opposition to the summary
judgment motion, Gurovich stated that when he awoke from the
colonoscopy, he “immediately noticed severe and massive pain in
and around anus [sic] and rectum.” He asked a nurse why he
was in so much pain, and the nurse told him that Arimie had
banded seven hemorrhoids. As the trial court found, Gurovich’s
proffered evidence only supported the determination his injury
occurred on the date of the 2019 procedure.
Gurovich asserts West Hills’s false advertisements were a
negligent cause of his disfigurement, pain, and emotional distress
resulting from the surgical procedure. He contends West Hills
deceptively induced his consent by falsely promoting Arimie as a
double-board-certified physician specializing in gastroenterology.
He asserts he did not discover those misrepresentations until
January 2023; thus, he contends, his negligence claim did not
accrue until then.
“ ‘The term “injury” for purposes of section 340.5 “ ‘refer[s]
to the damaging effect of the alleged wrongful act and not to the
act itself.’ [Citation.] The injury is not necessarily the ultimate
harm suffered, but instead occurs at ‘the point at which
15
“appreciable harm” [is] first manifested.’ ” [Citation.] An injury
manifests when damage is “evidenced in some significant fashion;
when the damage has clearly surfaced and is noticeable.” ’ ”
(Nichols, supra, 118 Cal.App.5th at p. 734.) “Because the three-
year limitations period accrues at the time of injury, it is the
surfacing of appreciable harm that marks the beginning of the
three-year period.” (Filosa, supra, 59 Cal.App.5th at p. 779; see
Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762 [“the event
which activates the three-year limitations period is the moment
the plaintiff discovers the harm caused by the alleged
negligence”].)
The three-year limitations period was triggered when
Gurovich first felt the effects of the surgery to which he did not
consent. According to his declaration, and as Gurovich concedes
on appeal, that happened when he woke up from the procedure in
August 2019. Under section 340.5, the accrual date was not the
date he discovered that West Hills’s alleged deception was one of
the negligent causes. (Nichols, supra, 118 Cal.App.5th at p. 734;
Hills v. Aronsohn, supra, 152 Cal.App.3d at p. 761 [unless one of
the tolling exceptions to § 340.5 applies, “the three-year outside
limitations period is commenced regardless of a patient’s belated
discovery of her injury”].) “The inescapable conclusion is that
[Gurovich] suffered the damaging effects of the malpractice more
than three years before filing suit. Accordingly, the motion for
summary judgment was properly granted.” (Hills, at p. 763.)
3. The battery cause of action is time-barred under
section 335.1
The statute of limitations for battery is two years. (§ 335.1;
see Daley v. Regents of University of California (2019)
39 Cal.App.5th 595, 602.) The trial court concluded there was no
16
triable issue that the claims against West Hills were filed more
than two years after the cause of action accrued, rejecting
Gurovich’s argument there was a triable issue that the delayed
discovery rule applied to delay accrual of the claim.
The battery cause of action in the second amended
complaint alleges West Hills and the other defendants “battered”
Gurovich by “baiting” him with the false promotions of Arimie “to
fraudulently obtain [Gurovich’s] oral consent … and then
switching the scope of consent” to include unauthorized
procedures.6 The complaint alleges that, due to this battery,
Gurovich “suffered … general and special damages, and severe
emotional distress, and is believed to be permanently injured to
his health and wellbeing.”
“A medical battery occurs where ‘a doctor obtains consent of
the patient to perform one type of treatment and subsequently
performs a substantially different treatment for which consent
was not obtained.’ ” (So v. Shin (2013) 212 Cal.App.4th 652, 669;
accord, Doe v. Kachru (2025) 115 Cal.App.5th 175, 18.)7 “The
6 Gurovich also alleged the other defendants (not West Hills)
committed battery by “allowing, performing, assisting in or
otherwise providing services or facilities for the colonoscopy
procedure to Plaintiff, which exceeded the scope of consent …
such that instead seven internal hemorrhoids were banded
during the procedure without consent.”
7 Intentional conduct such as that alleged by Gurovich likely
falls outside MICRA’s definition of “professional negligence” and
thus is not subject to the limitations period under section 340.5.
(See Doe v. Kachru, supra, 115 Cal.App.5th at pp. 187-190;
Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th
336, 347-352; see also Cobbs v. Grant (1972) 8 Cal.3d 229, 239-
241; Perry v. Shaw (2001) 88 Cal.App.4th 658, 663-664.) But
17
essential elements of a cause of action for battery are:
(1) defendant touched plaintiff, or caused plaintiff to be touched,
with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by
defendant’s conduct; and (4) a reasonable person in plaintiff’s
position would have been offended by the touching.” (So, at
p. 669.)
Gurovich’s battery claim against West Hills thus
necessarily alleges that West Hills’s conduct caused Gurovich to
be touched by Arimie, and that Gurovich was harmed by the
touching. It appears Gurovich asserts that West Hills’s alleged
deceptive representations about Arimie’s qualifications are the
conduct that caused Gurovich to be touched. As the trial court
concluded, logically the claimed injury must be from the touching
in August 2019.
The limitations period for battery begins to run when the
cause of action accrues. (Daley, supra, 39 Cal.App.5th at p. 603.)
“Generally, a cause of action accrues ‘ “when, under the
substantive law, the wrongful act is done,” or the wrongful result
occurs, and the consequent “liability arises.” ’ ” (Ibid.)
Gurovich asserts that the battery cause of action accrued
not at the time of the injury, but rather when he learned in
January 2023 that Arimie was not a board-certified specialist in
gastroenterology and that West Hills had deceived him on this
point. “As an exception to the general rule of accrual … the
discovery rule ‘postpones accrual of a cause of action until the
plaintiff discovers, or has reason to discover, the cause of action.’
assuming arguendo that section 340.5 applies, Gurovich’s battery
claim would be time-barred under section 340.5 for the same
reason as his negligence claim.
18
[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.” ’ [Citation.] Under this standard, accrual does not
wait until the plaintiff knows facts supporting each specific legal
element of the cause of action; it occurs when the plaintiff has
‘reason to at least suspect that a type of wrongdoing has injured
them.’ [Citation.] ‘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.’ ” (Daley,
supra, 39 Cal.App.5th at p. 603; see Aryeh, supra, 55 Cal.4th at
p. 1192 [the discovery rule, where applicable, “ ‘postpones accrual
of a cause of action until the plaintiff discovers, or has reason to
discover, the cause of action’ ”].)
However, Gurovich did not proffer facts to raise a triable
issue that the discovery rule applied to extend the statute of
limitations for his battery claim. In his opposition brief and
separate statement, Gurovich did not point to evidence of any
representation made by West Hills regarding Arimie’s credentials
or evidence that he relied on such a representation. (If Gurovich
did not rely on a representation by West Hills about Arimie’s
credentials, such a representation could not have “caused [him] to
be touched” (So v. Shin, supra, 212 Cal.App.4th at p. 669), i.e.,
caused him to consent to undergo a surgical procedure performed
by Arimie.) He relies solely on his declaration stating that prior
to Arimie’s deposition in January 2023 he had no reason to doubt
that Arimie was board-certified, and he had relied on what he
read about Arimie’s credentials on the website of another
defendant, inSite. Without baseline facts about when he
discovered a misrepresentation by West Hills, there is no
19
evidence from which a factfinder could conclude that Gurovich
could not have discovered any sooner that West Hills had
committed wrongdoing that led to his injury. In the absence of
such evidence, the “delayed discovery rule” does not come into
play. (See Glue-Fold, Inc. v. Slautterback Corp., supra,
82 Cal.App.4th at pp. 1030-1031 [summary judgment properly
granted in favor of defendant where plaintiff failed to proffer
evidence that could trigger delayed discovery rule; evidence failed
to show “precisely how or when” defendant learned of
wrongdoing, and plaintiff provided no evidence from which to
conclude plaintiff “exercised reasonable diligence in
investigating, or that earlier efforts would have been fruitless”].)8
Gurovich failed to raise a triable issue that the discovery
rule applied. Accordingly, summary judgment was appropriately
granted because Gurovich’s battery claim is time-barred under
section 335.1’s two-year deadline.
8 Not only did Gurovich fail to proffer facts to raise a triable
issue, but the second amended complaint is insufficiently pleaded
to permit Gurovich to rely on the delayed discovery rule. “In
order to rely on the discovery rule for delayed accrual of a cause
of action, ‘[a] plaintiff whose complaint shows on its face that his
claim would be barred without the benefit of the discovery rule
must specifically plead facts to show (1) the time and manner of
discovery and (2) the inability to have made earlier discovery
despite reasonable diligence.’ ” (Fox v. Ethicon Endo-Surgery,
Inc. (2005) 35 Cal.4th 797, 808.)
20
B. The Court Erred in Concluding Section 425.13 Barred
Gurovich from Pleading a Fraud Cause of Action Against
West Hills
1. Applicable law and standard of review
The court may “in its discretion, after notice to the adverse
party, allow, upon any terms as may be just, an amendment to
any pleading.” (§ 473, subd. (a)(1).) We review a ruling on a
request to amend a pleading for abuse of discretion. (Schifando
v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Jo Redland
Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th
142, 161-162.)
“It is well established that ‘California courts “have a policy
of great liberality in allowing amendments at any stage of the
proceeding so as to dispose of cases upon their substantial merits
where the authorization does not prejudice the substantial rights
of others.” [Citation.] Indeed, “it is a rare case in which ‘a court
will be justified in refusing a party leave to amend his [or her]
pleading so that he [or she] may properly present his [or her]
case.’ ” [Citation.]’ [Citation.] Thus, absent a showing of
prejudice to the adverse party, the rule of great liberality in
allowing amendment of pleadings will prevail.” (Board of
Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.)
“The trial court abuses its discretion if it denies leave to amend
when there is a reasonable possibility the defect in the pleading
could be cured by amendment.” (Bettencourt v. Hennessy
Industries, Inc. (2012) 205 Cal.App.4th 1103, 1111.) Gurovich’s
challenge also raises purely legal questions, which we review de
novo. (Aryeh, supra, 55 Cal.4th at [p. 1191; Randy’s Trucking,
Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 832.)
21
2. The trial court applied the wrong legal standard in
evaluating Gurovich’s request to amend to add a
fraud cause of action against West Hills
Gurovich contends the court applied the wrong legal
standard in determining whether to permit him to add a fraud
claim against West Hills by amended complaint. He asserts the
court improperly ruled he could not add a fraud claim because he
did not demonstrate a “substantial probability” of prevailing on
the claim, when the “substantial probability” test in section
425.13 applies only to the question of whether a plaintiff will be
permitted to plead a claim for punitive damages against a health
care provider. We agree.
Section 425.13, subdivision (a)9, “requires plaintiffs in an
action arising from the professional negligence of a licensed
health care provider to obtain a court order before including a
9 Section 425.13, subdivision (a), provides, “In any action for
damages arising out of the professional negligence of a health
care provider, no claim for punitive damages shall be included in
a complaint or other pleading unless the court enters an order
allowing an amended pleading that includes a claim for punitive
damages to be filed. The court may allow the filing of an
amended pleading claiming punitive damages on a motion by the
party seeking the amended pleading and on the basis of the
supporting and opposing affidavits presented that the plaintiff
has established that there is a substantial probability that the
plaintiff will prevail on the claim pursuant to Section 3294 of the
Civil Code. The court shall not grant a motion allowing the filing
of an amended pleading that includes a claim for punitive
damages if the motion for such an order is not filed within two
years after the complaint or initial pleading is filed or not less
than nine months before the date the matter is first set for trial,
whichever is earlier.”
22
claim for punitive damages in the complaint. Section 425.13[,
subdivision] (a) applies to intentional torts as well as negligence
causes of action.” (Country Villa Claremont Healthcare Center,
Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 431-432;
accord, Central Pathology Service Medical Clinic, Inc. v. Superior
Court (1992) 3 Cal.4th 181, 192 (Central Pathology).) “For the
punitive damages claim to be included in the complaint, there
must be a finding of substantial evidence that the defendant is
liable under Civil Code section 3294,” the provision that governs
when punitive damages are allowable. (Country Villa, at p. 432.)
The trial court denied Gurovich’s request to add a fraud
claim against West Hills because he “fail[ed] to meet the
requirements under … section 425.13 because he has not shown a
substantial probability of success on the merits of his punitive
damages claims against the hospital-defendants.” However,
section 425.13 does not require a plaintiff to show a substantial
probability of success on the merits to add a substantive claim.
The statute provides that “no claim for punitive damages shall be
included in a complaint or other pleading unless the court enters
an order allowing an amended pleading that includes a claim for
punitive damages to be filed.” (§ 425.13, subd. (a), italics added.)
It requires that showing only to add a claim for punitive
damages, not to assert a cause of action that supports a claim for
punitive damages.
West Hills responds by relying on cases establishing that,
for example, a fraud cause of action “arises out of professional
negligence” within the meaning of section 425.13. (See Central
Pathology, supra, 3 Cal.4th at pp. 192-193; Divino Plastic
Surgery, Inc. v. Superior Court (2022) 78 Cal.App.5th 972, 985.)
But those cases do not establish that section 425.13 governs
23
whether a plaintiff may plead the substantive claim itself. They
establish only that, when a fraud claim arises out of professional
negligence, section 425.13 applies to a request for punitive
damages based on that claim. In other words, the statute
regulates the remedy, not the cause of action. Thus, section
425.13 may require a plaintiff to obtain leave before adding a
punitive damages claim, but it does not require the plaintiff to
satisfy the statute’s “substantial probability” standard before
asserting the underlying fraud claim.10
C. Gurovich’s Fraud and CLRA Claims Were Properly
Dismissed, but Gurovich Must Be Granted Leave To Amend
His Claims
As discussed, after the trial court ruled that Gurovich had
to omit fraud allegations from his second amended complaint,
Gurovich included a fraud cause of action in that complaint
anyway. West Hills demurred to the cause of action (as well as
the other causes of action), but the court struck the fraud claim
sua sponte because the court had already ordered it could not
proceed. The court therefore did not rule on West Hills’s
demurrer to the fraud claim.
10 We reject West Hills’s contention Gurovich forfeited the
argument that section 425.13 applies only to punitive damages
and not to the fraud or CLRA causes of action by failing to object
to the superior court’s tentative ruling and by failing to include a
transcript of proceedings despite a court reporter transcribing the
argument. Gurovich preserved the issue by requesting leave to
amend to include a fraud claim. Further, the court’s written
order denying leave to amend provides a sufficient record for us
to evaluate the bases for the court’s ruling.
24
As we have concluded, the court erred in striking the fraud
claim. And because the court used its striking of the fraud claim
as the basis for sustaining the demurrer to the CLRA claim, the
court dismissed the CLRA claim for an unsound reason.
However, we now consider whether West Hills’s demurrer to the
fraud and CLRA claims nevertheless should have been granted.
(See Committee to Relocate Marilyn v. City of Palm Springs
(2023) 88 Cal.App.5th 607, 622 [“ ‘ “In considering a trial court’s
order sustaining a demurrer without leave to amend, ‘ “we review
the trial court’s result for error, and not its legal reasoning.” ’ ”
[Citation.] We “ ‘affirm the judgment if it is correct on any
theory.” ’ ”]; Iloh v. Regents of University of California (2023)
87 Cal.App.5th 513, 529 [“we consider only the trial court’s
ruling, not its reasoning; we affirm a challenged order if it is
correct on any theory”].)
“A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We … determine de novo whether the
complaint alleges facts sufficient to state a cause of action or
discloses a complete defense. [Citations.] We assume the truth
of the properly pleaded factual allegations, facts that reasonably
can be inferred from those expressly pleaded and matters of
which judicial notice has been taken.” (Ivanoff v. Bank of
America, N.A. (2017) 9 Cal.App.5th 719, 725; see Roy Allan
Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th
505, 512.) We do not assume to be true “ ‘mere contentions,
deductions, or conclusions of law.’ ” (New Livable California v.
Association of Bay Area Governments (2020) 59 Cal.App.5th 709,
714.)
25
1. The fraud cause of action against West Hills was not
pleaded with sufficient particularity
West Hills demurred to the second amended complaint on
the basis that Gurovich’s claims were not pleaded with the
required particularity.
To state a cause of action for fraud, a plaintiff must allege
“ ‘(a) misrepresentation (false representation, concealment, or
nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent
to defraud, i.e., to induce reliance; (d) justifiable reliance; and
(e) resulting damage.’ ” (Lazar v. Superior Court (1996)
12 Cal.4th 631, 638; see Amiodarone Cases (2022) 84 Cal.App.5th
1091, 1109.) Each element “must be pled specifically; general
and conclusory allegations do not suffice.” (Lazar, at p. 645; see
Amiodarone Cases, at p. 1109.) “ ‘ “This particularity
requirement necessitates pleading facts which ‘show how, when,
where, to whom, and by what means the representations were
tendered.’ ” ’ ” (Robinson Helicopter Co., Inc. v. Dana Corp.
(2004) 34 Cal.4th 979, 993 (Robinson Helicopter); see Amiodarone
Cases, at p. 1109; see also Wilhelm v. Pray, Price, Williams &
Russell (1986) 186 Cal.App.3d 1324, 1331 [“the allegations in a
fraud action need not be liberally construed”].)
Gurovich’s second amended complaint generally grouped
the defendants together, alleging “Defendants” made
representations on websites, social media, press releases, and
through other advertising and marketing portraying Arimie as a
“double or dual board certified medical doctor” and a “specialist.”
It alleged Gurovich heard or read these representations on
various websites, including
“https://westhillssurgicalcenter.com/,” “[o]n or before June 26,
2019.”
26
These allegations are insufficiently specific. The complaint
does not identify any particular representation made by West
Hills, when West Hills made it, where it appeared (beyond citing
West Hills’s general URL), or how and when Gurovich
encountered it. The allegations thus lack the requisite
specificity. (See Amiodarone Cases, supra, 84 Cal.App.5th at
p. 1111 [fraud claim could not survive demurrer because it lacked
specifics about when or how physicians were influenced by
allegedly false statements by FDA].) As the trial court noted, the
second amended complaint failed to identify “any single
statement by [West Hills] or its representatives which was false.”
In other words, Gurovich did not plead the “ ‘ “facts which ‘show
how, when, where, to whom, and by what means the
representations were tendered.’ ” ’ ” (Robinson Helicopter, supra,
34 Cal.4th at p. 993.) Thus, Gurovich’s fraud cause of action
against West Hills was not pleaded with the required specificity
and was properly dismissed.
2. The CLRA cause of action was not pleaded with
reasonable particularity
The analysis is similar for Gurovich’s CLRA cause of action.
“The CLRA defines as unlawful certain ‘unfair methods of
competition and unfair or deceptive acts ... undertaken by any
person in a transaction intended to result or that results in the
sale ... of goods or services to any consumer.’ (Civ. Code, § 1770,
subd. (a).)” (Amiodarone Cases, supra, 84 Cal.App.5th at
p. 1116.) “An individual seeking to recover damages under the
CLRA based on a misrepresentation must prove, among other
things, actual injury. ‘Relief under the CLRA is specifically
limited to those who suffer damage, making causation a
necessary element of proof.’ [Citation.] ‘Accordingly, “plaintiffs
27
in a CLRA action [must] show not only that a defendant’s conduct
was deceptive but that the deception caused them harm.” ’ ”
(Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545,
1556.) Although a CLRA claim is “subject to a more lenient
standard for pleading than a fraud claim” (Amiodarone Cases, at
p. 1115), it “must be stated with reasonable particularity,” a
pleading standard that is more demanding than the “general
rule” requiring that the complaint merely “ ‘set forth the ultimate
facts constituting the cause of action’ ” (Gutierrez v. Carmax Auto
Superstores California (2018) 19 Cal.App.5th 1234, 1261).
Gurovich’s CLRA claim was based on the same alleged
misrepresentations as his fraud claim. He did not plead the
claim with “reasonable particularity.” As discussed, he grouped
the defendants together despite their different roles and different
advertisements, and he failed to identify any alleged
misrepresentation made specifically by West Hills. Further, he
failed to allege that he relied on any West Hills
misrepresentation, when a required element of the claim is that
West Hills’s deception have caused him harm. (See Bower v.
AT&T Mobility, LLC, supra, 196 Cal.App.4th at p. 1556.) Thus,
Gurovich’s CLRA claim was properly dismissed because it was
not pleaded with reasonable particularity.
3. Gurovich is entitled to leave to amend his fraud and
CLRA causes of action
As discussed, regardless of the trial court’s reasoning, we
conclude the trial court properly dismissed Gurovich’s fraud and
CLRA causes of action because they were inadequately pleaded.
However, we conclude the court erred in denying Gurovich leave
to amend. There is “a reasonable possibility the defect in the
pleading could be cured by amendment” (Bettencourt v. Hennessy
28
Industries, Inc., supra, 205 Cal.App.4th at p. 1111) to allege
“ ‘ “facts which ‘show how, when, where, to whom, and by what
means the alleged representations were tendered’ ” ’ ” by West
Hills (Robinson Helicopter, supra, 34 Cal.4th at p. 993). To state
a fraud claim, Gurovich must also plead with specificity that
West Hills had knowledge of the falsity of the misrepresentations
and intended to defraud its patients, that Gurovich justifiably
relied on those misrepresentations, and that such reliance caused
Gurovich to suffer harm. (See Lazar v. Superior Court, supra,
12 Cal.4th at p. 638.)
DISPOSITION
The judgment is reversed. On remand, the court is directed
to vacate its order denying Gurovich leave to amend his fraud
and CLRA causes of action. The court’s rulings are otherwise
affirmed. The parties shall bear their own costs on appeal.
STONE, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
29