Filed 8/17/26 Kim v. Son CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
YOUNG KI KIM,
Plaintiff and Appellant, G066332
v. (Super. Ct. No. 30-2024-
01423705)
DON SON, M.D. INC., et al.,
OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County,
Deborah C. Servino, Judge. Affirmed.
Young Ki Kim, in pro. per.
Schmid & Voiles, Michael C. Ting, Nazanin Houshyar, and
Denise H. Greer, for Defendants and Respondents.
Young Ki Kim appeals from a judgment of dismissal following the
trial court’s order sustaining a demurrer to his first amended complaint
(FAC) against respondents Don Son, M.D., and Don Son, M.D., Inc.
(collectively defendants). The court concluded Kim’s claims were barred by
the statute of limitations set forth in Code of Civil Procedure section 340.5
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(section 340.5). On appeal, Kim contends the statute of limitations was tolled
because of defendants’ alleged concealment of his medical records. As
discussed below, we conclude Kim was on notice of his claims more than one
year before he filed his complaint and the lack of medical records did not
entitle him to tolling of the statute of limitations. His complaint was
untimely. Kim also contends the court abused its discretion in failing to
provide him leave to amend. We reject this contention because Kim does not
suggest any facts which would render his complaint timely. Accordingly, we
affirm.
STATEMENT OF THE CASE
On September 9, 2024, Kim filed a complaint for medical
negligence against defendants. The complaint is not in the appellate record.
Defendants demurred to the complaint on the basis of the statute
of limitations. The demurrer and all related pleadings, including Kim’s
opposition, are not in the record.
On April 18, 2025, the trial court sustained the demurrer with
leave to amend. In its written ruling, the court summarized the complaint as
follows: In his September 9, 2024 complaint, Kim “alleges he was injured by
Defendants’ malpractice during a colonoscopy on September 12, 2022, at
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All further statutory references are to the Code of Civil
Procedure.
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which time he was immediately made aware of Defendants’ actions and his
own injury by . . . Son’s statements and [his] own pain. That same day, [Kim]
continued to be in great pain while waiting at the ER due to Defendants’
failure to [request] an ambulance . . . . The [c]omplaint further alleges . . . Son
gave [Kim] antibiotics, prescribed to someone else, that gave him an allergic
reaction, and [Kim] was aware of all this no later than September 24, 2022.
[¶] In October 2022, . . . Son failed to return [Kim’s] calls seeking medical
help. . . . And by March 2, 2023, [Kim] learned he had developed a hernia and
underwent further surgery . . . All of this took place more than a year before
[Kim] filed the [c]omplaint.”
The trial court noted defendants demurred on the ground that
the complaint was barred by the statute of limitations set forth in section
340.5. The statute provides the limitations period for a medical malpractice
claim is three years from the date of injury or one year after the plaintiff
discovers or should have discovered the injury, whichever comes first. (§
340.5.) The court determined the complaint alleges Kim “discovered his
injuries and had, at least, a suspicion of wrongdoing immediately or within
days of Defendants’ [negligent] actions.” It concluded that given those
allegations, “his claims are barred by the statute of limitations.” The court,
however, granted Kim 15 days to amend the complaint to cure the defect.
In response, on April 30, 2025, Kim filed the FAC. The FAC
alleged that Kim “did not discover the permanent nature and disabling
extent of his injuries until March 2024, and he filed this action within one
year thereafter, satisfying the applicable limitations period.”
Defendants demurred to the FAC. The demurrer and all related
pleadings are not in the record. Additionally, the record does not contain any
hearing transcript.
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On November 19, 2025, a judgment of dismissal in favor of
defendants was entered. The judgment stated that on October 31, 2025, the
trial court sustained the demurrer to the FAC pursuant to the one-year
statute of limitations in section 340.5. The court’s order sustaining this
demurrer is not in the record.
On December 15, 2025, Kim timely noticed an appeal from the
November 19, 2025 judgment.
DISCUSSION
“In reviewing the sufficiency of a complaint against a general
demurrer, we are guided by long-settled rules. ‘We treat the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law. [Citation.] We also consider matters which may
be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context. [Citation.]
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; if not, there has been no
abuse of discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.)
Here, the demurrer to the FAC was sustained on the basis of the
statute of limitations set forth in section 340.5. The statute provides that “[i]n
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
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discovered, the injury, whichever occurs first.” (§ 340.5.) “‘The defense of
statute of limitations may be asserted by general demurrer if the complaint
shows on its face that the statute bars the action.’” (E-Fab, Inc. v.
Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) “Resolution of
the statute of limitations issue is normally a question of fact.” (Fox v. Ethicon
Endo–Surgery, Inc. (2005) 35 Cal.4th 797, 810.) “However, whenever
reasonable minds can draw only one conclusion from the evidence, the
question becomes one of law.” (Snow v. A.H. Robins Co. (1985) 165
Cal.App.3d 120, 128.)
Kim contends the trial court erroneously applied section 340.5
because it failed to consider delayed discovery, equitable tolling, and Son’s
concealment of critical medical records. He argues that Son’s failure to
provide “complete medical records, including the video recording,” tolled the
statute of limitations because those records were “necessary to determine
how the injury occurred.” As an initial matter, Kim has not shown he raised
this issue in his opposition to the demurrer. He does not reference any record
citation, including any allegations in the FAC supporting this contention.
Accordingly, it is forfeited. (See Thompson v. Ioane (2017) 11 Cal.App.5th
1180, 1192 [appellant “did not raise any of these arguments below in
opposition to [the] demurrer; as such, she forfeited them”].)
Even if not forfeited, we would reject the contention. Under
section 340.5, “regardless of extenuating circumstances, the patient must
bring his suit within one year after he discovers, or should have discovered,
his ‘injury.’” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896 (Gutierrez).) “‘[T]he
term “injury,” as used in section 340.5, means both “a person’s physical
condition and its ‘negligent cause.’”’ [Citation.] The word ‘injury’ for purposes
of section 340.5 is a term of art that ‘refer[s] to the damaging effect of the
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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 “appreciable harm” [is] first manifested.’” (Brewer v. Remington (2020)
46 Cal.App.5th 14, 24.) “Possession of ‘presumptive’ as well as ‘actual’
knowledge will commence the running of the statute. The applicable principle
has been expressed as follows: ‘when the plaintiff has notice or information of
circumstances to put a reasonable person on inquiry, or has the opportunity to
obtain knowledge from sources open to his investigation . . . the statute
commences to run.’” (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93,
101.) Therefore, “when the patient’s ‘reasonably founded suspicions [have
been aroused],’ and [he] has actually ‘become alerted to the necessity for
investigation and pursuit of [his] remedies,’ the one-year period for suit
begins.” (Gutierrez, at p. 897.)
Here, the FAC alleges Kim “felt excruciating pain” during the
colonoscopy. Son immediately told Kim that “something went wrong.” The
FAC further alleged that on September 16, 2022, Son came to Kim’s house
and admitted his mistake. Kim began suffering symptoms such as
involuntary bowels and urinary incontinence, and in December 2022, was
diagnosed with a hernia, “allegedly arising from the perforation and/or
subsequent surgery.” Based on these allegations, Kim was aware of his injury
and Son’s conduct more than a year before he filed his complaint. The fact
Kim did not have his complete medical records is irrelevant. (See Massey v.
Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 699 [“[T]he
limitations period begins to run, not when medical records are obtained, but
when one suspects, or reasonably should suspect, that he has been injured in
some wrongful way”].) Moreover, defendants’ alleged intentional concealment
of Kim’s medical records would not toll the one-year discovery provision in
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section 340.5. (See Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824
[“concealment is an exception to the three-year, not one-year, limitations
period in section 340.5”]; cf. Barber v. Superior Court (1991) 234 Cal.App.3d
1076, 1083 [“fraudulent concealment tolling provision “‘“does not come into
play, whatever the lengths to which a defendant has gone to conceal his
wrongs, if a plaintiff is on notice of a potential claim’””].) Thus, the FAC is
untimely pursuant to section 340.5.
Kim faults the trial court for failing to provide him leave to
amend the FAC. However, he does not identify any additional facts he can
allege to refute the conclusion his claims are time-barred as a matter of law.
As discussed above, allegations that defendants concealed his complete
medical records are insufficient. (See Schifando v. City of Los Angeles (2003)
31 Cal.4th 1074, 1081 [“The plaintiff has the burden of proving that an
amendment would cure the defect”].) Accordingly, defendants’ demurrer to
the FAC was properly sustained without leave to amend.
DISPOSITION
The judgment is affirmed.
DELANEY, J.
WE CONCUR:
MOORE, ACTING P. J.
GOODING, J.
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