Keowen v. Regents of the University of California

Filed 10/2/07 Keowen v. Regents of the University of California CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Paul G. Flynn, Judge. Affirmed.

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Maureen Keowen, in pro. per., for Plaintiff and Appellant.

Fonda & Fraser and Peter M. Fonda for Defendant and Respondent.

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Maureen Keowen sued the Regents of the University of California formedical malpractice and negligently hiring and training Dr. Larry Ford. The Regents demurred on the ground that both claims were barred by the statute of limitations. The trial court sustained the demurrer without leave to amend, and Keowen appeals. We affirm.

BACKGROUND

From 1989 through November 1994, Keowen was a patient at the UCLA Medical School and was treated by Dr. Ford. On March 22, 2005, she filed suit alleging that while she was Dr. Fords patient, he introduced bio-toxins into her body by means of a tongue depressor. Keowen also claimed that after Dr. Ford performed a complete medical and gynecological examination on her, she developed mold like symptoms, cancer, tuberculosis type symptoms, fatigue, cyst, kidney and other infections, cellulites, and mastitis in her breasts, thyroid problems, among other health problems. Further, she alleged that she suffered for years from mistaken diagnoses, mistakenly applied medical procedures, mistakenly administered cancer chemotherapy, medications, failure to properly diagnos[e] and treat the unknown bio-toxin illness and other unknown illnesses.

The Regents demurred to Keowens First Amended Complaint^[1]on the ground that her claims were time barred pursuant to section 340.5 of the Code of Civil Procedure.^[2] In her declaration filed in opposition to the Regents demurrer, Keowen stated that in November 2002, she viewed a 60 Minutes television program about Dr. Ford, which led her to suspect malpractice. She further stated that she then began her investigation regarding her malpractice claim by contacting the detective who was interviewed on the 60 Minutes program.

The trial court sustained the demurrer without leave to amend, concluding that Keowens claims were barred by the statute of limitations. Keowen moved for reconsideration, but the trial court denied the motion. Keowen timely appealed from the judgment of dismissal.

STANDARD OF REVIEW

When reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, an appellate court must assume the truth of the complaints properly pleaded or implied factual allegations. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The court must also consider judicially noticed matters (ibid.), and the court may itself take judicial notice under Evidence Code sections 452 and 459 (Sacramento Brewing Co. v. Desmond, Miller & Desmond (1999) 75 Cal.App.4th 1082, 1085, fn. 3).

If the demurrer was sustained without leave to amend, the reviewing court must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) If an amendment could cure the defect, then the trial court committed a reversible abuse of discretion; otherwise it did not. (Ibid.) The plaintiff has the burden of proving that an amendment would cure the defect. (Ibid.)

DISCUSSION

The sole issue on appeal is whether the trial court properly sustained the Regents demurrer without leave to amend. The applicable limitations period for claims alleging professional negligence against a health care provider is set forth in section 340.5. It provides that 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. ( 340.5.) The three-year period, however, may be 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. ( 340.5.)

The one-year limitation period starts to run when the plaintiff actually discovers, or should have discovered, the alleged injury and its negligent cause. (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 758-759.) The plaintiff should have discovered the injury and its negligent cause if she has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to [her] investigation . . . . (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-897, quoting Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101.)

The three-year limitation period provides an outer limit that terminates all malpractice liability after three years, and which starts to run on the date the plaintiff becomes aware of the physical manifestation of her injury. (Hills v. Aronsohn, supra, 152 Cal.App.3d at pp.759, 762) This event may occur even without the knowledge that negligence was the cause of the injury. (Id. at p. 762.)

In reviewing the trial courts ruling, we may judicially notice Keowens declaration. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The statements from Keowens declaration regarding the 60 Minutes program show that she discovered her alleged injury and its allegedly negligent cause no later than November 2002. Keowen has not attempted to retract those statements either in her motion for reconsideration or in her briefs on appeal. Because she filed suit on March 22, 2005, over two years after discovery of the allegedly negligent cause of her injury, the trial court properly concluded that Keowens claims were barred by the one-year limitation period in section 340.5. We therefore need not decide whether she also exceeded the three-year limitation period.

Keowen argues that the foreign bodies tolling provision in section 340.5 applies to the one-year limitation period and either extends the period to three years or tolls it indefinitely. Assuming for the sake of argument that the tolling provision does apply to the one-year period, the tolling would have ended in November 2002, when Keowen saw the 60 Minutes program that led her to suspect malpractice. (Cf. Barber v. Superior Court (1991) 234 Cal.App.3d 1076, 1083 [fraudulent concealment does not toll the statute of limitations if the plaintiff is on notice of a potential claim].)

Additionally, Keowen argues that the trial court abused its discretion when it refused to grant her leave to amend. She asserts that she should be permitted to amend her complaint to include allegations that Dr. Ford placed foreign bodies in her body. Such allegations would not, however, save her claims from being time barred under section 340.5, for the reasons we have already explained. Keowen therefore has not carried her burden of showing that she could cure the defects in her first amended complaint if granted leave to amend. Accordingly, the trial court did not abuse its discretion in sustaining the demurrer without leave to amend.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P.J.

JACKSON, J.^*

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^[1] It appears that the first time Keowen filed a first amended complaint, it was stricken by the court. On January 9, 2006, Keowen filed a new first amended complaint, which is the subject of the Regents demurrer and Keowens appeal.

^[2] All subsequent statutory references are to the Code of Civil Procedure.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)