Sterkina v. The Regents of
the University
of Cal
Filed 6/29/12
Sterkina v. The Regents of the University of Cal. CA1/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION THREE
SOFIYA STERKINA,
Plaintiff and
Appellant,
v.
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Defendant and
Respondent.
A131675
(San Francisco County
Super. Ct. No. CGC10498334)
This is an appeal from judgment
following the dismissal with prejudice of plaintiff Sofiya Sterkina’s third
amended complaint against defendant The Regents of the University of California
(Regents). Sterkina’s third amended
complaint purported to set forth a professional negligence claim for
hands of three dentists who performed dental work on her on behalf of the
University of California at San Francisco (UCSF) Hospital Dentistry/General
Practice Residency.
title="">[1] The trial court sustained defendant’s
demurrer to the third amended complaint without leave to amend after concluding
Sterkina’s claims were time-barred. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sterkina received dental treatment
from several dentists affiliated with the UCSF Hospital Dentistry/General
Practice Residency between February 2008 and February or March
2009. Over one year later, on
April 2, 2010, Sterkina filed this medical malpractice lawsuit alleging
that she sustained serious injuries, including
headaches and weakness, as a result of negligent dental treatment she
received from three of the dentists who cared for her during this time period –
to wit, Doctors Wadell, Harrington and Azizi (collectively, the UCSF
dentists).
Specifically, Sterkina alleges she
visited Dr. Wadell at least twice in February 2008 for “T#2
treatment.â€
title="">[2] Immediately following her second appointment
with Dr. Wadell, which occurred approximately two weeks after her first
appointment on February 21, 2008, Sterkina
experienced “deep interference under the gum of T#2,†causing her “terrible
pain, sleepless nights.â€
A few months later, on or about April 9, 2008, Sterkina received dental
treatment from Dr. Harrington that included prepping one of her teeth
for a prefabricated crown. According to
Sterkina, towards the end of this treatment, which lasted about three and a
half hours, Sterkina “felt weakness, headache.â€
Then, once Sterkina arrived home, she experienced “terrible pain,
. . . sleepless nights, [and] giddiness.â€
Around this time, in March and
April of 2008, Sterkina also received dental treatment from
Dr. Azizi, which she describes as “T#30 endo treatment.â€
of dizziness.†As a result, Sterkina
alleged she had to cancel a May 8, 2008 follow-up
appointment with Dr. Azizi, and was instead seen by him on May 27, 2008.
title="">[4]
As previously mentioned, Sterkina
initially filed this professional negligence lawsuit on April 2, 2010. In her original complaint,
Sterkina failed to properly name the parties.
As such, she filed an amended complaint on June 18, 2010, to which the Regents demurred.
On August 31,
2010, the trial court sustained the
Regents’ demurrer to the first amended complaint with 10-days leave to amend,
advising Sterkina that “[she] must plead what portion of her treatment gives
rise to a cause of action in negligence and what injury she has incurred. Plaintiff must also state the dates of the
alleged negligence and when she first suspected the negligence.†However, Sterkina failed to heed the trial
court’s advisement in drafting her second amended complaint, leading to the
court’s order sustaining the Regents’ second demurrer, again with 10-days leave
to amend, on November 9,
2010.
On November 18, 2010, Sterkina filed the operative complaint that is the subject of this
appeal – to wit, her third amended complaint.
In this complaint, Sterkina included an allegation that she did not
suspect negligence in connection with her dental work “until or after April 3, 2009.†The Regents again
demurred, and the matter was heard February 9, 2011. In sustaining this
demurrer, the trial court offered the following explanation:
“Ms. Sterkina,
I understand that your complaint is that you are alleging that you received
some dental work and that based on that dental work you have had problems. The problem is that you have failed to file
this in a timely manner from the time that it was discovered that you had these
problems and it was based on your dentistry, and that’s the reason why I have
sustained the demurrer is because you’ve not filed this in time.â€
When Sterkina insisted to the trial
court she first suspected negligence on or after April 3, 2009, rather than immediately after her treatment, the trial court
pointed out that such allegation was belied by other facts in her complaint, a
flaw fatal to her case:
“The problem is
that there are facts in your complaint which indicate that you actually were
aware of the problems much earlier than that and that it was from the fact that
you had this dental work, and so that belies the fact that you didn’t know
until more recently.â€
Subsequently, the trial court
entered a written order sustaining the demurer to the third amended complaint
and dismissed the case with prejudice, thereby implicitly finding the
complaint’s defect was not reasonably curable by way of amendment. Judgment was then entered in favor of the
Regents, leading to this timely appeal.
DISCUSSION
Sterkina argues on appeal that the
trial court erred in finding her claim time-barred as a matter of law,
insisting she filed suit within a year of first suspecting the UCSF dentists’
negligence. In doing so, she
acknowledges that her injuries surfaced shortly after the UCSF dentists’
treatment, but claims she believed they were “only [the] result of her body
reaction on [sic] the treatment†and thus did not trigger the running of the
statute of limitations. The following
well-established legal principles govern our review of her contention.
An order sustaining a demurrer
is reviewed de novo. 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. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff. [Citation.]†(Blank v. Kirwan (1985) 39 Cal.3d 311,
318. See also
Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 957.)
Here,
the trial court sustained the Regents’ demurrer to Sterkina’s third amended
complaint without leave to amend after finding her in violation of the statute
of limitations set forth in Code of Civil Procedure section 340.5 (section
340.5). This
statute, the applicability of which is not challenged, provides in relevant
part that, in a personal injury action against a
health care provider for alleged professional negligence, the time for the
commencement of the 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.â€
complied with the latter part of this statute, which is also known as the
“discovery rule.†We thus must determine
whether Sterkina’s filing of her action on April 2, 2010 occurred within
one year of the date she “discover[ed], or through the use of reasonable
diligence should have discovered,†her alleged injuries. (§ 340.5.) We, like the trial court, conclude her filing
did not meet this deadline for the reasons that follow.
“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.’ (McKelvey v. Boeing
North American, Inc. (1999) 74 Cal.App.4th 151, 160 [86 Cal.Rptr.2d 645].) In assessing the sufficiency of the allegations of
delayed discovery, the court places the burden on the plaintiff to “show
diligenceâ€; “conclusory allegations will not withstand demurrer.’ (Ibid.)†(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) “Simply put, in order to employ the discovery rule to delay accrual of a
cause of action, a potential plaintiff who suspects that an injury has been
wrongfully caused must conduct a reasonable investigation of all potential
causes of that injury. If such an investigation would have disclosed a factual
basis for a cause of action, the statute of limitations begins to run on that
cause of action when the investigation would have brought such information to
light.â€
title="">[6] (Id.
at pp. 808-809 [emphasis added].)
Turning
now to the record, we find unavoidable the conclusion that Sterkina had reason
to – and likely did – suspect that the UCSF dentists’ treatment caused her
injuries shortly after she received the treatment, such that the statute of
limitations set forth in section 340.5 began to run well before April 3,
2009, the date she now claims she first suspected negligence. For example, as set forth above, the
operative complaint alleges Sterkina was injured on or around the following
dates: February 2008 (Dr. Waddell), April 9, 2008
(Dr. Harrington), and March through May 2008 (Dr. Azizi). Specifically, with respect to
Dr. Wadell’s treatment of her T#2, Sterkina
experienced “deep interference under the gum of T#2,†causing her “terrible
pain, sleepless nights†immediately
following her second appointment with him.
Further, according to the complaint, this second appointment with
Dr. Wadell occurred approximately two weeks after her first appointment on
February 21, 2008.
With respect to Dr. Harrington,
Sterkina was treated on or about April 9, 2008. According to Sterkina, towards the end of
this treatment, which included prepping one of her teeth for a prefabricated
crown and lasted about three and a half hours, she “felt weakness,
headache.†Further, once Sterkina
arrived home, she experienced “terrible pain, . . . sleepless nights,
[and] giddiness.â€
Finally, with respect to
Dr. Azizi, who provided “T#30 endo treatment†in March and April of
2008, Sterkina alleges having “very heavy bleeding, before it very severe
episode of dizziness†on May 7, 2008, prompting her to cancel a
May 8, 2008 follow-up appointment.
These
undisputed facts relating to Sterkina’s discovery of injuries in the time
period of February to May 2008 render her professional negligence
claim untimely as a matter of law.
(§ 340.5.) Simply put,
Sterkina’s injuries should have alerted her to
possible wrongdoing by the dentists, triggering her duty to conduct a
reasonable investigation of all potential causes of those injuries. Such investigation, we conclude, would have
disclosed a factual basis for her cause of action long before April 3,
2009, the date she claims to have first suspected negligence. “Pursuant
to the plain language of section 340.5, it is the discovery of ‘the injury,’
rather than the discovery of a particular defendant’s negligence, that triggers
the limitations period.†(
Accordingly, for the reasons
stated, we agree with the trial court that Sterkina’s claim is time-barred as a
matter of law. Moreover, Sterkina has made no effort to meet
her burden to prove there is a reasonable possibility that she could cure this
timeliness defect if given a fourth opportunity to amend her complaint. (Blank v. Kirwan, supra, 39 Cal.3d at
p. 318; see also Angie M. v.
Superior Court (1995) 37 Cal.App.4th 1217, 1227 [“Liberality of permitting
amendment is the rule, if a fair opportunity to correct the defect has not been
givenâ€].) As such, the trial court
properly exercised its discretion in sustaining the demurrer to her third
amended complaint without leave to amend.
University of California, supra, 151 Cal.App.4th at p. 175 [“ ‘[t]he trial court has wide discretion in allowing the
amendment of any pleading [citations], [and] as a matter of policy the ruling
of the trial court in such matters will be upheld unless a manifest or gross
abuse of discretion is shown’ â€].)
DISPOSITION
The judgment is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] English is not the
first language of Sterkina, who is proceeding in propria persona. As a result, statements set forth in
Sterkina’s court documents are at times lost in translation, although the gist
of her claim is well understood.
a reference to the tooth numbering system recognized by the dental profession,
which identifies T#2 as the second molar on the upper right side of a person’s
mouth.
