Rembert v. CedarsSinaiMedicalCenter

Filed 8/25/08 Rembert v. Cedars Sinai Medical Center 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm H. Mackey, Judge. Affirmed.

Alfonso Rembert, in pro. per., for Plaintiff and Appellant.

Pivo, Halbreich, Martin, Wilson & Amo, Kenneth R. Pivo and Myra A. Firth for Defendant and Respondent.

Plaintiff Alfonso Rembert appeals from the judgment of dismissal following the trial courts sustaining without leave to amend the demurrer filed by defendant Cedars-Sinai Medical Center (Cedars). We affirm.

BACKGROUND

Plaintiff represented himself in the trial court, and continues to do so in this appeal. On June 5, 2006, plaintiff filed a complaint against Cedars on a Judicial Council form purporting to allege a cause of action for intentional tort. The only supporting allegation, repeated in various iterations, was that he was denied treatment by Cedars, causing him immeasurable physical and psychological pain and suffering.

On June 23, 2006, plaintiff filed a first amended complaint (FAC). The clerks transcript on appeal fails to contain a copy of the FAC. It appears that the FAC listed three causes of action: general negligence, intentional tort, and strict liability. Cedars filed a demurrer and motion to strike the FAC. According to the demurrer and the motion to strike, the FAC alleged that plaintiff went to Cedars in September 2002 to seek medical treatment for facial lacerations. After being examined by an in-house psychiatrist, he was admitted as a psychiatric patient for severe depression. While awaiting transport to the in-patient psychiatric ward, he went into a lounge area near the emergency room, where he picked up a mirror sitting on a desk. An agent of Cedars accused him of stealing the mirror, which resulted in his incarceration for two years. Plaintiff alleged that he was denied his right to medical treatment of his facial lacerations and psychiatric treatment due to the willful acts of Cedars and its agents.

Cedars demurred on the ground that the FAC sounded in medical negligence, and that plaintiffs claim was barred by the applicable statute of limitations, Code of Civil Procedure section 340.5.[1] The demurrer and motion to strike were set for hearing on September 11, 2006.

On August 28, 2006, plaintiff filed an ex parte application seeking a continuance of the hearing. In the application, plaintiff asserted that he was a low income, homeless individual with a psychiatric disability [and with] very limited telephone access and resources in general. He sought a continuance of the hearing on the demurrer and motion to strike for 30 days to obtain counsel. In his supporting declaration, he stated that the strain of the case was too much for him to handle, and he was currently undergoing tests at a Veterans healthcare facility in Long Beach to determine his competency to represent himself. He stated that before filing his complaint he had contacted approximately 18 law firms, all of which declined to represent him. Since filing his complaint, he had unsuccessfully contacted approximately 9 additional law firms and had exhausted the lawyer referral lists provided by various non-profit agencies. He was currently going through the yellow pages but felt confident that if [he] had an additional 30 days, [he] would manage to find counsel and preserve [his] legal rights.

Cedars opposed the request for a continuance, arguing (among other things) that there was no reasonable possibility that plaintiff would be able to obtain counsel, or that the flaws in FAC could be cured.

In response to Cedars opposition, plaintiff filed a 17-page declaration in which he stated, in substance, that he had recently discovered that two medical reports in his records from Cedars falsely stated that he received medical services, including a CT scan. Plaintiff stated: I am declaring that I was never given a CT-scan of any kind by [Cedars]. As a matter of fact, with the exception of taking my vital signs, absolutely no medical treatment was given to me by [Cedars] for the seriously urgent facial and head injuries, along with the gravely emergency psychiatric condition that I was enduring while seeking medical care at the defendants hospital. Attached to the declaration were copies of the two purportedly false medical reports, and a computer-generated report from a staff psychiatrist at the Veterans health facility in Long Beach dated September 6, 2006. The psychiatrists report noted that plaintiff complained of stress from representing himself. The report stated that plaintiff has been stable but still with stress and anxiety. Due to his condition, he would not be able to work at this time let alone represent himself in legal matters. Plaintiff asserted that based on this new evidence, he would be able to obtain legal representation if given an additional 30 days.

In addition to his lengthy declaration, plaintiff filed, on a Judicial Council form, a Request for Accommodations by Persons with Disabilities. On the form, plaintiff wrote that he needed a 30-day continuance because he had come close to a nervous breakdown.

The ex parte application was heard on September 8, 2006. At the hearing, the court ruled that plaintiffs evidence of false medical records and of inability to represent himself because of stress and anxiety did not constitute good cause to continue the hearing for plaintiff to obtain an attorney. The court stated, however, that plaintiff could present his evidence of false medical reports at the hearing on the demurrer and motion to strike.

The demurrer and motion to strike were heard on September 11, 2006. Before the hearing, plaintiff filed another lengthy declaration in which he complained that he was entitled to a continuance to obtain counsel. He accused the court of conspiring with Cedars to violate his rights.

At the September 11 hearing, the court provided the parties with a written tentative ruling on the demurrer. The tentative ruling is not part of the record on appeal, but it apparently sustained the demurrer without leave to amend on the ground that the FAC was barred by the statute of limitations. The court explained to plaintiff that it had read his most recent declaration, that the written ruling was tentative only, and that the court was inviting plaintiff to comment.

Plaintiff stated that he had been incarcerated for two years and had been unable to file a complaint. The court asked plaintiff to state his complaint against Cedars. Plaintiff stated: My complaint is that they falsely accused me of taking the mirror when I was already admitted as a psych patient, and that they orchestrated me being incarcerated, and . . . I didnt put it in the complaint because I just discovered that they falsified documents claiming that they gave me CAT Scans which was totally fabricated. Plaintiff described his claims against Cedars as medical malpractice and negligence. Under further questioning by the court, plaintiff stated that factual basis of his claims happened in September of 2002 and that he had not filed his first complaint until June 2006. Plaintiff stated that he was released from custody on June 5, 2004.

The court then asked Cedars attorney to state her position, but plaintiff insisted on being heard further. He stated that he had attorneys that was interested in taking [his] case based on [his] new evidence, and that he had an appointment with an attorney tomorrow. However, he conceded that he had not paid any money to an attorney and that no attorney had agreed to appear.

The court then tried to turn plaintiffs attention to the statute of limitations issue. Plaintiff argued that he had recently been diagnosed with post-traumatic stress disorder and that the statute of limitations time dont start to run until the person actually feels the effect of the defendant[s] negligence. Plaintiff then asked the court for its reasons for having denied him a continuance. The court explained that it did not believe a continuance had been warranted because plaintiff had been looking for an attorney for six months and the court wanted to address the merits of the case. Plaintiff then repeatedly interrupted the court as the court attempted to hear from Cedars counsel. When the court explained to plaintiff that the statute of limitations began running in 2002, plaintiff stated, I cant take this no more. He then lay on the floor kicking and crying, I cant take this no more. . . . Help me, Momma.

The court took a recess, and when proceedings resumed, stated that plaintiff was outside the courtroom speaking to a bailiff and refused to return. Shortly afterward the bailiff stated on the record that plaintiff was adamantly refusing to come back into the courtroom, and that physical force would have to be used to bring him back. The court ruled that plaintiff had willfully absented himself from the hearing on the tentative ruling, which was to sustain the demurrer without leave to amend. The court noted that it was attempting to elicit from him why he felt he had a good cause of action. The court stated that it had given him an opportunity to state his position, but that plaintiffs new evidence was not relevant to curing the statute of limitations problem.

After hearing from Cedars counsel, the court sustained the demurrer without leave to amend, and took the motion to strike off calendar. The court concluded that plaintiffs general negligence claim was barred by the two-year limitation period of section 335.1; that his intentional tort claim sounded in professional negligence and was barred by the one- and three-year limitations periods of section 340.5; and that his strict liability claim failed to allege facts to fall within the strict liability doctrine, which applies only in product liability cases. The court noted that plaintiff obviously has severe mental problems, but he was very responsive and alert up to the time [of] my indication that I might sustain the demurrer without leave to amend.

Following the courts entry of judgment of dismissal, plaintiff timely appealed.

DISCUSSION

On appeal, plaintiffs makes two primary contentions: (1) the trial court erred in denying plaintiff a continuance of the hearing on Cedars demurrer to the FAC; and (2) the trial court erred in concluding the FAC was barred by the statute of limitations.

As we have noted, the clerks transcript does not include a copy of the FAC. Plaintiff (as appellant) has the burden of providing a sufficient record on appeal, and his failure to provide a copy of the FAC might be deemed a forfeiture of his contentions on appeal. (See Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) Nonetheless, because there appears to be no dispute between the parties as to the relevant facts, we will address plaintiffs contentions on the merits.

Denial of a Continuance

Plaintiff first contends that the court erred in denying him a continuance of the hearing on the demurrer and motion to strike. According to plaintiff, this is the main reason the trial courts decision should be reversed. We find no abuse of discretion in the trial courts ruling denying a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170 [power to grant continuance lies within trial courts discretion, and ruling will not be set aside unless it exceeds the bounds of reason under all the circumstances].)

Plaintiff wanted a continuance to obtain counsel. However, before filing his complaint he had unsuccessfully contacted approximately 18 law firms to represent him, and after filing his complaint had unsuccessfully contacted approximately 9 more. He had also exhausted the lawyer referrals provided by various non-profit agencies, and at the time of the September 8, 2006 hearing was going through the yellow pages to find a lawyer. On this evidence, the trial court reasonably concluded at the September 8 hearing that there was no reasonable likelihood that plaintiff could obtain a lawyer within the 30-day period requested.

Further, the trial court reasonably concluded that the situation had not changed three days later at the September 11, 2006 hearing on Cedars demurrer. At that hearing, plaintiff stated that he had attorneys that was interested in taking [his] case based on [his] new evidence of purportedly false medical reports in his file at Cedars, and that he had an appointment with an attorney tomorrow. However, he conceded that he had not paid any money to an attorney and that no attorney had agreed to appear. Given plaintiffs longstanding inability to obtain counsel, the court reasonably concluded that plaintiffs assertion that certain unnamed attorneys were interested in the case and that he had an appointment with one the next day was not sufficient cause to continue the September 11 hearing.

Finally, the court was also reasonable in declining to continue the case based on plaintiffs asserted stress and anxiety in representing himself. At the September 11 hearing, plaintiff argued that he was mentally unable to represent himself based on the stress of handling his own case. He submitted a computer-generated report dated September 6, 2006, from a psychiatrist at the Veterans health facility in Long Beach which stated that plaintiff complained of stress from representing himself, and that plaintiff has been stable but still with stress and anxiety. Due to his condition, he would not be able to work at this time let alone represent himself in legal matters.

However, despite the psychiatrists opinion, plaintiff filed an ex parte application for a continuance on August 28, and a 17-page declaration on September 8, both of which contained factual assertions and legal arguments in support of his request. He submitted copies of the two allegedly false medical reports, as well as the psychiatrists report. He also filed a Request for Accommodations by Persons with Disabilities on a Judicial Council form. For the September 11 hearing, he filed an 11-page declaration, again containing factual assertions and legal arguments. As noted by the trial court, plaintiff obviously has severe mental problems, but at the September 11 hearing he was very responsive and alert until it became clear that the court was likely going to sustain the demurrer without leave to amend.

On this record, the court reasonably concluded that plaintiffs mental state did not prevent him from preparing and submitting documents in support of his case and did not prevent him for making his oral presentation. The court also reasonably concluded that plaintiff willfully disrupted and absented himself from the hearing.[2] We conclude that the court acted reasonably in denying a continuance.

Statute of Limitations

Plaintiff presents no argument challenging the trial courts sustaining of Cedars demurrer to his cause of action for strict liability. The trial court ruled that the claim failed to allege facts sufficient to fall within the doctrine of strict liability, because that doctrine applies in products liability actions based on manufacturing or design defects or a failure to warn of hazards. (See Anderson v. Owens-Corning Fiberglass Corp. (1991) 53 Cal.3d 987, 995.) Thus, although plaintiffs contentions are difficult to follow, it appears that he challenges only the trial courts rulings with respect to the statute of limitations as to his causes of action for general negligence and intentional tort.

When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaints properly pleaded or implied factual allegations. [Citation.] . . . . In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.] If the trial court has sustained the demurer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. (Schifando v. City of Los Angeles(2003) 31 Cal.4th 1074, 1081 (Schifando).)

Because plaintiff has failed to provide a copy of the FAC in the record on appeal, we take the alleged facts of plaintiffs claims from the summary provided in Cedars demurrer and motion to strike, and from plaintiffs comments in the trial court. According to these sources, plaintiff alleged that in September 2002 he sought medical treatment from Cedars for facial lacerations. After being examined by an in-house psychiatrist, he was admitted as a psychiatric patient for severe depression. While awaiting transport to the in-patient psychiatric ward, he went into a lounge area near the emergency room, where he picked up a mirror sitting on a desk. An agent of Cedars accused him of stealing the mirror, which resulted in his incarceration for two years. He was released from custody on June 5, 2004, and filed his initial complaint against Cedars two years later on June 5, 2006.

As contended by Cedars (and not contradicted by plaintiff), the substance of plaintiffs claims is that Cedars negligently failed to provide medical treatment for his facial lacerations and psychiatric treatment for his mental problems. This claim relies on Cedars duty to use reasonable care in treating its patients. Thus, whether entitled general negligence or intentional tort, it is a claim for professional negligence by a health care provider, and, as such, the relevant statute of limitations is found in section 340.5. (David M. v. BeverlyHospital(2005) 131 Cal.App.4th 1272, 1281.)[3] Plaintiff does not contend that any other statute of limitations applies.

Under section 340.5, a plaintiff must commence the action either within three years after the date of his injury, or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. The one-year period of section 340.5 begins when plaintiff is aware of both the physical manifestation of the injury and its negligent cause. (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 822.) It is well established that, [t]he term injury, as used in section 340.5, means both a persons physical condition and its negligent cause. [Citation.] However, a person need not know of the actual negligent cause of an injury; mere suspicion of negligence suffices to trigger the limitation period. (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.)

Here, the facts as alleged by plaintiff show that he was aware of the physical manifestation of his injury in September 2002 when he went to Cedars suffering from facial lacerations and mental distress, was falsely accused of stealing a mirror, and, upon being taken into police custody, was denied treatment for the facial lacerations and mental problems. Thus, in September 2002 he necessarily knew he was suffering harm from his facial lacerations and mental distress, and knew, or reasonably should have known, of its negligent cause Cedars denial of treatment and releasing him into the custody of the police based on its false report of theft. Therefore, the one-year period commenced in September 2002. Because plaintiff did not file his initial complaint until June 2006, his professional negligence claim is barred by the one-year provision of section 340.5.

In the alternative, plaintiffs professional negligence claim was barred by the three-year limitation period, under which the claim must be brought within three years from the date of injury, even if plaintiff was excusably unaware of the underlying facts. (See 3 Witkin, Cal. Procedure (4th ed. 1996) Actions,  536, p. 676.) Plaintiff appears to contend that his claim did not accrue in September 2002 because he did not appreciate the full extent of his mental injury until some unspecified later time. However, for purposes of the three-year limitation period, injury is deemed to occur at the point at which appreciable harm was first manifested. (Brown v. Blieberg (1982) 32 Cal.3d 426, 437, fn. 8.) Under the facts as portrayed by plaintiff, appreciable harm was first manifested in September 2002 when plaintiff, suffering from facial lacerations and mental distress, was allegedly falsely arrested and denied treatment. Thus, under the three-year limitation period, his injury occurred in September 2002, and he was required to commence his action within three years thereafter in September 2005. However, he failed to do so until June 2006. Therefore, the action is barred by the three-year period.

It appears that plaintiff is contending that he should have been allowed to amend the complaint to plead facts showing that the limitations period was tolled by fraud or intentional concealment. It is plaintiffs burden to demonstrate how the complaint might be amended to avoid the bar of the statute of limitations. (Schifando, supra, 31 Cal.4th at p. 1081.)[4] The limitations period of section 340.5 may be tolled by the defendants fraud or intentional concealment. (See fn. 3, ante.) Here, the alleged fraud or concealment is that Cedars personnel falsely wrote in medical reports that Cedars provided certain medical treatment that plaintiff asserts he did not receive. However, plaintiff does not explain how the supposed false reports misled him into delaying his action, and it is apparent that they did not. Thus, Cedars supposed fraud or intentional concealment provides no basis for tolling. (See Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 890 [general theory is that fraud tolls limitation period to prevent defendant from taking advantage of wrongdoing in misleading plaintiff]; see also McNall v. Summers (1994) 25 Cal.App.4th 1300, 1311-1312.)

Petitioner also appears to contend that the limitation period was tolled by his incarceration ( 352.1) and his insanity ( 352). Neither of these theories saves plaintiffs action.

First, it has been held that while incarceration under section 352.1 and insanity under section 352 can toll the one-year limitation period of section 340.5, they cannot toll the three-year period. (Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928, 931 [incarceration]; Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 101, 105-106 [insanity] (Alcott).) As we have noted, plaintiff did not commence his action with three years of the date of injury as required by section 340.5. Therefore, his action is barred by the three-year period, regardless of whether his alleged incarceration or insanity might toll the one-year period.

In any event, he cannot plead facts showing that incarceration or insanity would make his action timely under the one-year period. Section 352.1 provides in relevant part that a plaintiff who is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years. ( 352.1, subd. (a).) Here, as we have noted, plaintiffs cause of action accrued in September 2002. Plaintiff informed the trial court that he was released from custody on June 5, 2004. Therefore, under section 352.1, the one-year period was tolled until his release date, and he was required to commence his action within one year thereafter in June 2005. However, he did not commence the action until June 2006. Therefore, the tolling provision of section 352.1 does not make plaintiffs action timely under the one-year limitation period of section 340.5.

Similarly, section 352 is of no aid to plaintiff as against the bar of the one-year period. Section 352, subdivision (a), provides in relevant part that [i]f a person entitled to bring an action . . . is, at the time the cause of action accrued . . . insane, the time of the disability is not part of the time limited for the commencement of the action. [A] plaintiff is insane if incapable of caring for his [or her] property or transacting business or understanding the nature or effects of his [or her] acts. (Alcott, supra, 93 Cal.App.4th at p. 101.)

Here, plaintiff fails to present any facts showing that he met the legal definition of insanity for purposes of section 352. On appeal, he asserts that after his arrest for the alleged theft of the mirror, he was committed to Patton State Hospital for two years. Even if his commitment to Patton State Hospital suggests that he could allege facts that would toll the limitations period for insanity, he was released on June 5, 2004. He presents no evidence showing that he was insane upon release. On appeal, he claims that after his release, he was diagnosed with posttraumatic stress disorder. However, that diagnosis is insufficient to show that he could successfully amend to allege tolling under section 352. (See Snyder v. Boy Scouts of America, Inc. (1988) 205 Cal.App.3d 1318, 1324 [plaintiffs alleged posttraumatic syndrome does not constitute insanity under section 352].) Therefore, even if tolled under section 352, the one-year period of section 340.5 commenced no later than plaintiffs release from Patton State Hospital on June 5, 2004, and expired one year later in June 2005. Plaintiff did not commence his action until June 5, 2006, and therefore it is barred under the one-year provision of section 340.5.[5]

Finally, plaintiff appears to assert that the limitations period should be equitably tolled. However, he fails to set forth any facts that would support the doctrine of equitable tolling. (See Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 650 [equitable tolling applies where, inter alia, plaintiff with several legal remedies pursues one in good faith to lessen damage].)

We conclude that plaintiffs action is barred by both the one- and three-year limitations periods of section 340.5, and that plaintiff has failed to demonstrate that his FAC can be amended to cure the defects. Therefore, the trial court did not abuse its discretion in sustaining Cedars demurrer without leave to amend.

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DISPOSITION

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1] All further section references are to the Code of Civil Procedure.

[2] Plaintiff also contends that the court failed to rule on his Request for Accommodations by Persons with Disabilities. However, this document was in the nature of a request to continue the September 11 hearing. As we have stated, the trial court did not err in denying a continuance.

[3] Section 340.5 provides in relevant part: In an action for injury or death against a health care provider based upon such persons 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 . . . .

For the purposes of this section:

(1) Health care provider means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. Health care provider includes the legal representatives of a health care provider;

(2) Professional negligence means 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.

[4] Plaintiff asserts that the trial court would not permit him to argue theories of tolling. However, plaintiff disrupted the hearing on the demurrer, was escorted out of the courtroom, and refused to return. His inability to argue these theories was thus a result of his misbehavior and willful absenting himself from the proceeding. His behavior calls into question whether we should entertain these theories on appeal. Nonetheless, we consider them.

[5] Insofar as the facts alleged by plaintiff might be construed as asserting a claim for defamation based on Cedars alleged false report of theft, such a claim would be barred by the one-year limitation period of section 340, subdivision (c). A claim for defamation against Cedars (if any) accrued when the allegedly false statement was published in September 2002. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247.) Any tolling of the one-year limitation period for incarceration ( 352.1) or insanity ( 352) would not save a defamation claim, for the same reasons it would not save his claim for professional negligence under the one-year limitation period of section 340.5.

To the extent plaintiff might be arguing that he should have been allowed to amend to plead a claim for malicious prosecution based on Cedars allegedly false theft report and his subsequent prosecution, we note that he has not presented any evidence showing that the criminal action was terminated in his favor. Without such evidence, he cannot maintain a malicious prosecution action. (See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,  477, p. 703.)