Simmons v. James






Filed 9/26/11 Simmons v. James CA2/4





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

LISA SIMMONS, Plaintiff and Appellant, v. BARBARA ANN JAMES, Defendant and Respondent.

B222165 (Los Angeles County Super. Ct. No. BC403841)

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph E. DiLoreto, Judge. Affirmed.
Leon A. Victor & Associates and Leon A. Victor for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Michael B. Magloff, Caroline E. Chan; Ford, Walker, Haggerty & Behar, William C. Haggerty and Katherine M. Harwood for Defendant and Respondent.


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INTRODUCTION
Lisa Simmons appeals from an order granting a motion for summary judgment in favor of her former dentist, Dr. Barbara Ann James. She contends the superior court erred when it concluded her claims against Dr. James were barred by the applicable statute of limitations. We affirm.^[1]

FACTUAL AND PROCEDURAL HISTORY
I. Complaint
On December 12, 2008, Simmons filed a complaint for damages in Los Angeles Superior Court. She thereafter filed a first amended complaint (FAC). In the FAC, Simmons alleged she was injured as a result of Dr. James’s professional negligence, lack of reasonable disclosure, and fraudulent misrepresentation.
It is undisputed that Simmons was a patient of Dr. James and that Dr. James performed a root canal procedure on Simmons’s tooth no. 19 on December 5, 2006. According to Simmons, Dr. James told her the dental problems with tooth no. 19 could be corrected by a root canal and crowning procedure. The FAC alleged that “[Dr.] James . . . represented that she was familiar and experienced with these procedures, and that [tooth no. 19] would not need to be extracted as long as [Simmons] underwent the respective . . . procedures.” According to Simmons, Dr. James made these representations knowing they were false. It was also alleged that Dr. James “failed to make a reasonable disclosure of the information necessary for [Simmons] to make an intelligent and informed choice about the care and treatment that [Dr. James] proposed for and administered to her.”
After the procedure, Simmons complained of pain in the area around the tooth, but was allegedly informed by Dr. James that the pain was “normal and to be expected.” Simmons further alleged that when she “demanded attention and requested to be seen by [Dr.] James, the doctor refused to see her, and further refused to speak to [her] or discuss her pain.” Simmons also alleged she “has no medical background, education, or training and had no means to discover any misconduct, negligence, or culpability” of Dr. James.
II. Motion for Summary Judgment
On September 15, 2009, Dr. James filed a motion for summary judgment, or in the alternative, summary adjudication (MSJ). In her motion, Dr. James contended that Simmons’s claims against her were barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.5.^[2] She argued Simmons knew and was aware of the facts giving rise to the claims in the FAC by no later than December 5, 2007, more than a year before she filed her complaint.
In her deposition, Simmons testified that on December 5, 2007 -- approximately one year after Dr. James performed the root canal on tooth no. 19 -- she consulted a dentist, Dr. Michael Alkov, who advised her that she had an “abscess as big as a baseball” in tooth no. 19. That same day, Simmons saw another dentist, Dr. Mitra, who told her the abscess was caused by an incomplete root canal. Dr. Mitra informed Simmons that the dentist who performed the root canal should have placed filling material all the way to the top of the root, but tooth no. 19 had filling material only halfway to the top.
According to Simmons’s declaration, 10 days after consulting Dr. Alkov and Dr. Mitra, she was forced to go to the emergency room because of extreme pain in her mouth. Two days later, she filed a grievance with Delta Dental, her insurance company, complaining of “negligence, incompetence, and unprofessional conduct involving root canal treatments performed by [Dr.] Barbara Ann James, D.D.S.” On or about January 3, 2008, Dr. Aivaz completed the root canal procedure on tooth no. 19 by drilling to the apex and filling the canal to the top of the root. Dr. James argued that in light of Simmons’s consultations with Dr. Alkov and Dr. Mitra, she knew of the allegedly negligent treatment by Dr. James no later than December 5, 2007.
Simmons filed an opposition to the MSJ, contending that the delayed discovery rule applied to her case because she did not know the incomplete root canal procedure constituted negligent care. According to Simmons, “Dr. James ha[d] testified that her reason for not drilling to the apex [of tooth no. 19] was due to the calcification that had formed” in tooth no. 19. Simmons contended she did not know that the decision not to drill to the apex was negligent until she was informed by Dr Aivaz on the date of her second root canal (January 3, 2008) that calcification did not prevent a complete root canal procedure. Neither Simmons nor Dr. James testified that Dr. James mentioned calcification in tooth no. 19 to Simmons on December 5, 2006. Simmons also contended the statute of limitations should be tolled because Dr. James intentionally concealed from her the fact that the root canal was not completed.
Dr. James filed a reply in which she contended: (1) that Simmons “‘discover[ed], or through reasonable diligence should have discovered,” that Dr. James was negligent when Simmons was informed by Dr. Mitra on December 5, 2007 that the root canal treatment was improperly performed; and (2) that the tolling due to intentional concealment did not apply to the one-year statute of limitations in section 340.5.
The trial court held a hearing on the MSJ. The court informed the parties that its tentative ruling was to deny the MSJ, deny summary adjudication as to the professional negligence and lack of informed consent claims, and grant summary adjudication on the fraud claim. After listening to arguments, the trial court changed its tentative ruling, concluding that at the point a doctor actually told Simmons about the negligent cause of her injury, “there’s not much speculation at that point.” The trial court also noted that on December 17, 2007, less than two weeks after being advised by Dr. Mitra that the original root canal procedure had been improperly performed, Simmons filed a complaint with her dental insurance company, accusing Dr. James of negligence. The court concluded that Simmons had sufficient information to be put on “reasonable notice that something’s wrong and she apparently [wrote] it down.”^[3]
On December 17, 2009, the superior court issued a minute order granting Dr. James’s MSJ on the grounds stated in the motion. Simmons timely filed an appeal.

DISCUSSION
The trial court granted summary judgment because it determined that Simmons’ claims were barred by the statute of limitations in section 340.5. We independently review the superior court’s order, “liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
Section 340.5 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 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 . . . .”
Section 340.5 defines “professional negligence” as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.”
Simmons’s claims fall within the scope of section 340.5 as they involve allegedly negligent acts (the fraudulent misrepresentations about Dr. James’s competence and the efficacy of the root canal procedure and performance of the procedure) or omissions to act (the lack of informed consent). (See, e.g., Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1200 [applicable statute of limitations for lack of informed consent claim is section 340.5].) Thus, a three-year limitations period on the claims began to run from the date of the injury, and a one-year limitations period ran from the date of discovery of the injury. (§ 340.5) Under section 340.5, Simmons was required to file her claims before either limitations period expired. In granting the MSJ, the trial court concluded the claims were untimely under the one-year limitations period in section 340.5.
On appeal, Simmons contends the superior court erred in granting summary judgment because: (1) “disputed facts exist as to when [she] discovered her injuries were caused by the negligence of Dr. James”; and (2) Simmons was misled by Dr. James, who intentionally withheld information about the root canal treatment. We address each contention in turn.
Simmons contends that although she “was informed of the infection in her tooth and that the root canal was filled half way,” “the record does not connect this information to negligent treatment or Dr. James’[s] lack of care.” We disagree that Simmons could not be deemed to have notice of Dr. James’s alleged malpractice as of December 5, 2007. “[A] plaintiff need not know the precise manner in which a wrongdoer was negligent in order to discover his or her injury, within the meaning of section 340.5.” (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1298.) Rather, “‘[w]hen a plaintiff has information which would put a reasonable person on inquiry, when a plaintiff’s “reasonably founded suspicions [have been] aroused” and the plaintiff has “become alerted to the necessity for investigation and pursuit of her remedies,” the one-year period commences.’” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824 (Dolan), quoting Rose v. Fife (1989) 207 Cal.App.3d 760, 768.)
It is undisputed that on December 5, 2007, Simmons learned (1) that she had a very bad infection in tooth no. 19, and (2) that the cause of the infection was the fact that in her root canal procedure the preceding year, the canal had been filled only halfway. Dr. Mitra went so far as to tell Simmons that the doctor who performed the root canal “should have placed filling material all the way to the top of [the] root.” (Italics added.) Simmons already knew that Dr. James had performed the root canal and that she had been suffering from pain in tooth no. 19 for months after the procedure. On this record, Simmons should have “‘“become alerted to the necessity for investigation and pursuit of her remedies”’” against Dr. James on December 5, 2007. It was not necessary that she know the precise reason Dr. James had not performed the root canal properly to be deemed to have discovered the injury on that date. It was sufficient that she was advised that the source of her injury was the December 2006 root canal procedure and that the procedure was improperly performed. Accordingly, there were no triable or disputed issues of fact as to the date that Simmons discovered or should have discovered her injuries were caused by Dr. James’s alleged negligence.
We also conclude the alleged fraudulent misrepresentations by Dr. James did not toll the one-year limitations period. Section 340.5 provides that fraud or intentional concealment would toll the three-year limitations period. However, fraud and intentional concealment are exceptions “to the three-year, not one-year, limitations period in section 340.5.” (Dolan, supra, 13 Cal.App.4th at p. 824.) As explained above, the one-year limitations period applies here, and the alleged fraudulent misrepresentations would not toll that limitations period.
In sum, Simmons discovered, or through reasonable diligence should have discovered, that she was injured by Dr. James’s alleged negligence no later than December 5, 2007. In order for her complaint to be timely, Simmons was required to file it before December 5, 2008. As the complaint was filed on December 12, 2008, her claims were untimely.
DISPOSITION
The superior court’s order is affirmed. Costs are awarded to respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



MANELLA, J.

We concur:



WILLHITE, Acting P. J.



SUZUKAWA, J.

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