Oldenkamp v. Sabo

Filed 10/4/06 Oldenkamp v. Sabo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Frederick Mandabach, Judge. Affirmed.

Hodge and Bartoumian, Stanley W. Hodge, and Arshak Bartoumian, for Plaintiff and Appellant.

Davis, Grass, Goldstein & Housouer, and Tom M. Allen, for Defendant and Respondent Victor Sabo.

Murchison & Cumming, Edmund G. Farrell III, and Dan L. Longo, for Defendant and Respondent Desert Knolls Convalescent Hospital.

Plaintiff Leeann Oldenkamp (Oldenkamp) sued defendants Victor Sabo, M.D. (Sabo), and Desert Knolls Convalescent Hospital (Desert Knolls), for wrongful death and elder abuse,^[1] arising out of the July 2001 death of her mother, Beverly Van Dorin (Van Dorin). The trial court granted defendants’ motion for summary judgment on the ground that Oldenkamp’s lawsuit was barred by the applicable statute of limitations. (Code Civ. Proc.,^[2] § 340.5.) On appeal from the ensuing judgment, Oldenkamp insists that the statute was tolled when, in April 2002, she complained to the Medical Board of California (the Board) that Sabo had falsified her mother’s death certificate, and that the filing of her complaint on December 8, 2003, i.e., nearly six months after the Board filed an accusation against Sabo, was within the one-year limitation period. Alternatively, she argues defendants, by reason of their conduct (some of which she contends was criminal in nature), should be estopped from asserting the statute as a defense. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In late June 2001, Van Dorin underwent a surgical procedure on her right elbow. On July 1, she was admitted to Desert Knolls to convalesce; Sabo was her attending physician. On July 9, she was transferred by ambulance to Desert Valley Hospital in Victorville. When Oldenkamp arrived shortly thereafter, she was informed by an emergency room nurse that Van Dorin, upon her arrival from Desert Knolls, was in an unclean condition, that she was being scrubbed, and that treatment could not begin until she had been cleaned up. In Oldenkamp’s presence, the nurse removed the gauze which had been “stuffed” into the incision in Van Dorin’s elbow. This revealed a severe infection, which Oldenkamp said the nurse told her had “apparently result[ed] from lack of attention after surgical stitches had broken.” The nurse purportedly told Oldenkamp that Van Dorin’s condition “‘was the worst thing she had ever seen,’” that the wound on her arm demonstrated “‘horrible neglect,’“ and that Oldenkamp should contact someone about it. Van Dorin died two days later.

On April 23, 2002, Oldenkamp lodged with the Board a complaint, the preparation of which had been completed around October or November 2001. In essence, the complaint alleged that Sabo failed to state on Van Dorin’s death certificate that “her cause of death on July 11, 2001, was a staphylococcus infection. Incorrectly, only natural causes were shown.” The complaint further alleged that Sabo had cautioned Oldenkamp and other family members of the highly infectious nature of Van Dorin’s staphylococcus infection, stating that they should avoid any contact with Van Dorin, and that unless the antibiotic was successful in combating the infection, Van Dorin was not expected to survive. Based thereon, Oldenkamp “contend[ed] that the omission of staphylococcus infection as the cause of [Van Dorin’s] death must have been deliberate by Dr. Sabo.” The complaint further alleged that because “‘natural causes’” was shown as the cause of death, “recourse for negligence would be difficult to pursue even if it had been considered. This was discussed with legal counsel.” In conclusion, Oldenkamp stated: “Please help me correct the official death record of [Van Dorin] to indicate the cause of death was staphylococcus infection.” Along with the complaint, Oldenkamp had apparently enclosed copies of the death certificate and other medical records.

On June 26, 2003, the Board filed an accusation against Sabo with regard to three different patients, including Van Dorin. As for Van Dorin, the accusation alleged that Sabo was subject to disciplinary action for unprofessional conduct in caring for and treating Van Dorin (1) in failing to follow and manage her day-to-day care, to and including the post-surgical condition of her elbow, and coordinating such follow-up with the orthopedic surgeon who performed the surgery; (2) in failing to recognize the serious consequences of not monitoring Van Dorin’s wound care; and (3) in failing to list on the death certificate “‘acute septic shock’” as a cause of death, as he did in signing Van Dorin’s hospital death summary, an “intentional omission,” the result of which “was an inaccurate vital medical and legal record relating to this patient.”^[3]

On December 8, 2003, Oldenkamp filed her complaint against defendants. However, the complaint itself is not a part of the record on appeal. Nor, with the exception of defendants’ summary judgment motion and Oldenkamp’s opposition to that motion, does the record contain the other documents filed in this matter, including Desert Knolls’s motion to strike and demurrer filed January 12, 2004; Sabo’s motion to strike and demurrer filed February 4, 2004; order filed March 25, 2004, sustaining demurrers as to fraud and elder abuse causes of action and granting Oldenkamp 30 days leave to amend; first amended complaint filed April 26, 2004; Sabo’s and Desert Knolls’s motions to strike and demurrers as to each cause of action in the first amended complaint, filed May 11 and 26, 2004, respectively; and order filed August 19, 2004, setting forth court’s ruling on submitted matter as to demurrers and motions to strike.^[4] Oldenkamp did not thereafter amend her first amended complaint.

Based upon her conversations with the emergency room nurse and her own observations, Oldenkamp subsequently admitted (at her December 2004 deposition) that prior to April 23, 2002, the date on which she filed her complaint with the Board, she believed that something was wrong with the treatment her mother had received and that the treatment resulted in her mother’s death.

On February 2, 2005, Desert Knolls filed its motion for summary judgment; Sabo filed a joinder on March 14, 2005. The motion was made on the ground the complaint was barred as to each cause of action in that it was filed more than two years after Oldenkamp became aware of the underlying claim. (§ 340.5.) Oldenkamp opposed the motion, claiming, in essence, that the statute of limitations was tolled until she received the accusation from the Board. Alternatively, she claimed that defendants should be estopped from asserting the statute of limitations as a defense because of their “unethical, immoral, and criminal conduct.” The matter was heard on May 2, 2005, and by order issued the following day, the court granted the motion. This order, which apparently encompassed written findings, is not part of the record, nor is the judgment which was filed on August 15, 2005. Oldenkamp’s notice of appeal was filed September 13, 2005.

DISCUSSION

A. Standard of review.

The purpose of summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citations.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844 (Aguilar).) A defendant’s summary judgment motion should be granted if no triable issue exists as to any material fact and the defendant is entitled to judgment as a matter of law. (§ 437c, subd. (c).) The defendant’s burden is met by producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it. Once that has been accomplished, the burden shifts to the plaintiff to show, by producing evidence of specific facts that a triable issue of material fact exists as to the cause of action or the defense. (Aguilar, supra, 25 Cal.4th at pp. 849-851, 854-855.) The evidence of the moving party should be strictly construed, and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

On appeal from a summary judgment, our review is de novo, which means that we independently review the evidence submitted. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In so doing we apply the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.)

B. Applicable statutes of limitations.

Section 340.5 states, in pertinent part: “In 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, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.”

Under the discovery rule, “‘the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing . . . .’ [Citations.] This rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. [Citation.] The first to occur under these two tests begins the limitations period.” (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.)

“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. [Citation.] (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly).)

“Under the statute of limitations, a plaintiff must bring a cause of action within the limitations period applicable thereto after accrual of the cause of action. [Citations.] The general rule for defining the accrual of a cause of action sets the date as the time ‘when, under the substantive law, the wrongful act is done,’ or the wrongful result occurs, and the consequent ‘liability arises.’ [Citation.] In other words, it sets the date as the time when the cause of action is complete with all of its elements [citations]--the elements being generically referred to by sets of terms such as ‘wrongdoing’ or ‘wrongful conduct,’ ‘cause’ or ‘causation,’ and ‘harm’ or ‘injury’ [citations]. An exception to the general rule for defining the accrual of a cause of action--indeed the ‘most important’ one--is the discovery rule. [Citation.] It may be expressed by the Legislature or implied by the courts. [Citation.] It postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)

“Under Jolly . . . the plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof-when, simply put, he at least ‘suspects . . . that someone has done something wrong’ to him [citation], ‘wrong’ being used, not in any technical sense, but rather in accordance with its ‘lay understanding’ [citation]. He has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements. [Citation.] He has reason to suspect when he has ‘”’”notice or information of circumstances to put a reasonable person on inquiry“’”’ [citation]; he need not know the ‘specific “facts” necessary to establish’ the cause of action; rather he may seek to learn such facts through the ‘process contemplated by pretrial discovery’; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place-he ‘cannot wait for’ them ‘to find’ him and ‘sit on’ his ‘rights’; he ‘must go find’ them himself if he can and ‘file suit’ if he does [citation].” (Norgart v. Upjohn Co., supra, 21 Cal.4th at pp. 397-398, fns. omitted.)

C. Inadequacy of appellate record.

Before addressing the merits of this appeal, we must comment on the inadequacy of the appellate record furnished by Oldenkamp. As indicated earlier in this opinion, the only documents requested by Oldenkamp for inclusion in the record were those pertaining to defendants’ motion for summary judgment and her opposition; not even the order granting summary judgment, which apparently sets forth the court’s findings, is included.

Although in reviewing the judgment we conduct a de novo review, it is nonetheless essential for the appellant to present a complete record. As Sabo points out, the failure to do so compels us to presume that everything missing from the record supports the court’s order granting summary judgment. Indeed, because there is an inadequate record, we must presume any matters that could have been presented to support the trial court’s judgment were in fact presented, and may affirm the trial court’s determination on that basis. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127 [where summary judgment was granted on ground statute of limitations barred action for legal malpractice, and underlying complaint was absent from record, court would not second-guess trial court’s determination that action was barred].) In any event, having reviewed the record in the form presented to us, we conclude that the judgment must be affirmed.

D. Trial court properly granted summary judgment.

Oldenkamp is adamant that discovery of her cause of action did not accrue until the Board acted on her complaint. Citing Jolly, supra, 44 Cal.3d at p. 110 [rule under section 340.5 sets forth two alternative tests--subjective and objective; the latter requires a showing that a reasonable person would have suspected the injury was caused by wrongdoing], she contends her cause of action did not accrue until she was apprised by the Board that the causation element of a cause of action for medical malpractice indeed existed, i.e., when she learned that her mother’s death certificate had been falsified by defendants.^[5]

Oldenkamp’s attempt to distinguish Kleefeld v. Superior Court (1994) 25 Cal.App.4th 1680 (Kleefeld), upon which defendants rely, is unavailing. Kleefeld involved a patient who died in October 1990 of a ruptured aortic aneurysm. Five days after her death, her husband contacted the Board of Chiropractic Examiners expressing his concern that Dr. Kleefeld, his wife’s chiropractor, may have excessively treated his wife. In January 1991, in an interview with a Board investigator, the husband expressed his view that his wife’s death might have been caused by Dr. Kleefeld’s inappropriate treatment. Dr. Kleefeld was ultimately disciplined. On October 21, 2003, two years after his wife’s death, the husband filed a malpractice action against Dr. Kleefeld.

Dr. Kleefeld’s motion for summary judgment was denied, the trial court having found a triable issue of fact existed as to whether the husband “used reasonable diligence in ascertaining if care given by [Dr. Kleefeld] was within the standard of care and as to whether [the husband] could have known of sufficient facts prior to August 30, 1991, when he was informed of the Board’s decision disciplining [Dr. Kleefeld].” (Kleefeld, supra, 25 Cal.App.4th at p. 1683.) The Court of Appeal issued a writ, concluding that the husband “suspected that there was wrongdoing on the part of [Dr. Kleefeld] at the time of his wife’s death or shortly thereafter. His own deposition testimony and his actions in contacting the Board establish his suspicions. The one-year limitation had long run before he filed his action and [Dr. Kleefeld] is entitled to summary judgment.” (Id. at p. 1685.) The court explained: “[A] plaintiff’s diligence after he has become suspicious of wrongdoing is not relevant to the running of the statute of limitations. Diligence is only relevant to determine [whether] he should have suspected wrongdoing. Once a plaintiff actually has the requisite suspicion, the statute of limitations commences to run. It is not tolled by efforts to learn more about the matter short of filing suit. ‘[R]egardless of extenuating circumstances, the patient must bring his suit within one year after he discovers, or should have discovered, his “injury.” [Citation.]” (Id. at p. 1684.)

The Kleefeld court later explained: “We are not concerned with defining the nature of the ‘injury’ or with plaintiff’s knowledge of the fact of death. We are only concerned with the time when plaintiff became suspicious that the cause of death might be related to [Dr. Kleefeld’s] treatment. Plaintiff acknowledged that these suspicions occurred at or soon after the date of death. The one-year limitation commenced at that time and clearly had run well before the commencement of the action two years later. It was not tolled while the Board looked into plaintiff’s concerns about defendant’s treatment. There is no tolling provision in the one-year limitation, not even for fraud or concealment, much less for the pursuit of evidence of negligence. [Citation.]” (Kleefeld, supra, 25 Cal.App.4th at pp.1684-1685; italics added.)

Oldenkamp attempts to distinguish Kleefeld on the ground that her Board complaint alleged Sabo had falsified the death certificate in order to conceal her mother’s cause of death. She argues: “She could only [be] held to have had a reasonable belief of the causation element of her cause of action when the Medical Board informed her that, indeed, Dr. Sabo had falsified the death certificate. One simply cannot believe something that is hidden. Notice by the Medical Board caused the cause of action in this case to accrue.” Thus, she argues the complaint to the Board in Kleefeld actually indicated that the doctor had done something to cause the decedent’s death, whereas here, the complaint to the Board merely questioned the accuracy of the death certificate, and that until the Board investigated the matter, Oldenkamp could not have reasonably known if there was any wrongdoing.

The premise upon which Oldenkamp bases her argument is flawed. Simply stated, nowhere in her brief does she set forth any rationale or explanation for her position the Board’s approval was needed before she pursued an action against defendants. Nor could she. Indeed, one thing has nothing to do with the other. Moreover, as indicated above, Oldenkamp’s complaint to the Medical Board ostensibly was not construed as being limited to the accuracy of the death certificate. This is evidenced by the scope of the Board’s accusation, which also alleged that Sabo had failed to provide proper care and treatment for Van Dorin.

Two other cases cited by Desert Knolls lend further support to the trial court’s decision. Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, involved a wife who suspected medical negligence shortly after her husband’s death in November 2000. In November 2001 she and her two children filed a wrongful death action against the hospital and two surgeons who repaired the decedent’s abdominal aortic aneurysm. While that case was pending, the plaintiffs consulted with another doctor, who said that another physician (Knowles) who had performed a different procedure to treat the decedent’s renal stenosis the day before the surgery, “may have done something during the renal stenting procedure that caused internal bleeding.” (Id. at p. 1294.) On November 6, 2002, the plaintiffs filed a separate wrongful death action against Knowles. After the trial court denied Knowles’s motion for summary judgment, the Court of Appeal issued a writ vacating the order. Noting that the plaintiffs had admitted they suspected medical negligence immediately following the decedent’s death, the court said: “These admissions establish as a matter of law that shortly after [decedent’s] death, [the plaintiffs] each ‘suspect[ed] . . . that someone ha[d] done something wrong’ to cause his death. [Citation.] Therefore, [the plaintiffs] all discovered their wrongful death claims shortly after November 24, 2000.” (Id. at p. 1298.) The court further stated: “It is well established that, ‘[t]he term “injury,” as used in section 340.5, means both a person’s 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. [Citations.]” (Id. at p. 1295.)

And in Dolan v. Borelli (1993) 13 Cal.App 4th 816, a patient who underwent surgery to eliminate pain resulting from carpal tunnel syndrome was informed by her physician that she should be pain-free within 60 days. When the pain continued beyond that period, she believed that the surgery had been performed improperly and thus consulted another doctor. A second surgery was performed, during which the negligence of the first physician was disclosed. On appeal from a summary judgment, the patient argued that the statute began to run from the date of the second surgery. Rejecting that position, the Court of Appeal concluded that “the essential inquiry is when did [the patient] suspect [the first physician] was negligent, not when did she learn precisely how he was negligent.” (Id. at p. 824.)

Applying the foregoing principles to this case, there can be no question that Oldenkamp suspected in July 2001 that her mother had received negligent treatment while under defendants’ care. Oldenkamp’s contention that the statute was tolled because she was unaware of her rights due to the inaccuracy of the death certificate is contrary to law. She admitted that she knew something was wrong after talking to the emergency room nurse the day her mother arrived at Desert Valley Hospital. In her complaint to the Board, she states, in essence, that she was informed that her mother likely had a staphylococcus infection, which was later confirmed; that Sabo informed her that unless the administered antibiotic was successful in combating the infection, her mother would not survive; that the omission of the staphylococcus infection as to the cause of death must have been deliberate by Sabo; and that she had discussed with counsel that recourse for negligence would be difficult to pursue because the death certificate showed death from “natural causes.” That the Board did not act upon her complaint until the following June has no bearing on her awareness of a claim of negligence at the time of her mother’s admission to Desert Valley--and even after the Board acted, Oldenkamp waited another six months before filing her lawsuit. Defendant Desert Knolls perhaps sums it up best when it asserts that “[h]ow [Oldenkamp] can argue . . . that the facts necessary to commence this action were not within [her] knowledge until she received some assurances from the Medical Board that the cause of death was indeed staphylococcus is beyond belief.”

Nor is there merit to Oldenkamp’s contention that the statute of limitations for dependent adult abuse was tolled until she learned of the Board’s accusation against Sabo. Elder abuse claims are governed by section 335.1, which provides that an action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another, must be filed within two years. (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1515-1516.) However, as defendants point out, at the time of Van Dorin’s death, section 335.1 was not in effect, and the one-year statute under former section 340(3) had already run. Moreover, section 335.1 has no retroactive application. (Krupnick v. Duke Energy Morro Bay, L.L.C. (2004) 115 Cal.App.4th 1026, 1028.) And in any event, even if section 335.1 did apply, the two-year statute would have run on July 10, 2003--two years after the cessation of Van Dorin’s care and treatment just prior to her death.

Additionally, as Sabo aptly notes, regardless of who advised Oldenkamp that a wrongful death lawsuit could not be maintained due to the inaccuracy of the death certificate, wrong advice given after a plaintiff suspects negligence does not postpone the statute of limitations. (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 899.) In Gutierrez, a patient argued that the accrual period was tolled because she consulted with an attorney who told her she did not have a viable malpractice claim. Her contention was rejected, the court holding that under the discovery rule “the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his [or her] claim.” (Id. at p. 897.) Thus, there was no reason to depart from this rule where “despite plaintiff’s discovery of the facts constituting his [or her] claim, and without defendant’s fault,” an attorney dissuades the plaintiff from filing suit. (Id. at p. 899.)^[6]

E. Doctrine of equitable estoppel does not apply.

As an alternative argument, Oldenkamp contends that defendants should be estopped^[7] from asserting a statute of limitations defense by reason of Sabo’s conduct in falsifying Van Dorin’s death certificate. Citing various sections of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.), she asserts: “Dr. Sabo is a fiduciary who has a duty to disclose even unpleasant or personally compromising facts to his patient and her family. Moreover, [he] is the caretaker of a dependent person, a specially protected class of persons. Finally, he has a statutory duty to report neglect or abuse, not conceal it. [Defendants] chose, instead of living up to their legal obligations, to conceal the fact that their conduct caused [] Van Dorin’s death.

They did this by falsifying [] Van Dorin’s death certificate. In doing so they violated obligations established by case law and also their statutory duty as mandated reporters of abuse or neglect. They are now estopped from asserting the statute of limitations as a defense in this matter.”

“The doctrine of equitable estoppel is based on the theory that a party who by his declarations or conduct misleads another to his prejudice should be estopped from obtaining the benefits of his misconduct. [Citation.] Under appropriate circumstances equitable estoppel will preclude a defendant from pleading the bar of the statute of limitations where the plaintiff was induced to refrain from bringing a timely action by the fraud, misrepresentation or deceptions of defendant. [Citations.] A defendant should not be permitted to lull his adversary into a false sense of security, cause the bar of the statute of limitations to occur and then plead in defense the delay occasioned by his own conduct. [Citations.]” (Kleinecke v. Montecito Water Dist. (1983) 147 Cal.App.3d 240, 245.)

The general doctrine of equitable estoppel has been codified in Evidence Code section 623, which provides: “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” Thus, where the delay in commencing an action is induced by the defendant’s conduct, the defendant cannot avail himself of it as a defense. (Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1152-1153.) However, “[t]he defendant’s statement or conduct must amount to a misrepresentation bearing on the necessity of bringing a timely suit; the defendant’s mere denial of legal liability does not set up an estoppel. [Citations.]” (Lantzy v. Centrex Homes (2003) 31 Cal.4th 363, 384, fn. 18.)

Citing a string of cases in which the doctrine of equitable estoppel was applied to preclude various defendants from asserting a statute of limitations defense, she contends defendants, “by their crimes,^[[8]] kept [her] from discovery that the death certificate was indeed [] false.” However, in so doing, she takes out of context various rules of law for which those cases stand. For example, she cites Stafford v. Shultz (1954) 42 Cal.2d 767 for the proposition that “[a] defendant, who by fraud or deceit conceals material facts and by misrepresentations hinders plaintiff from bringing action within the statutory period, is estopped [from] taking advantage of his own wrong.” This, she argues, is a rule which is “designed for conduct exactly like that engaged in by [defendants.]” Her argument fails. Even if it could be established that Sabo intentionally misrepresented the cause of death on Van Dorin’s death certificate, we cannot say, on the record before us, that Sabo’s conduct reasonably--and deliberately--induced Oldenkamp to delay filing her lawsuit, as is required for equitable estoppel. Rather, Oldenkamp contends only that “the preparation of a falsified public document, a death certificate, presented an obstacle to her presentation of a claim to the courts.” That Oldenkamp chose to view the status of the death certificate as an obstacle to filing a timely lawsuit was her own doing. More importantly, we fail to see how Sabo’s conduct in allegedly falsifying the death certificate could have had any “bearing on the necessity of bringing a timely suit.” (Lantzy v. Centrex Homes, supra, 31 Cal.4th at p. 384, fn. 18.) That is, there must be a nexus between the defendant’s alleged conduct and the plaintiff’s need to file a timely suit. Simply put, here there is none, and Oldenkamp has not convinced us otherwise.

DISPOSITION

The judgment is affirmed. Defendants are entitled to costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P.J.

/s/ HOLLENHORST

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] The original complaint apparently included a cause of action for fraud. As discussed herein, Oldenkamp has provided an inadequate record, which does not include either her complaint or her subsequent first amended complaint. Nonetheless, it appears the cause of action for fraud was eliminated after defendants’ demurrers were sustained with leave to amend and Oldenkamp failed to amend as to her fraud allegations. Desert Knolls informs us that the first amended complaint deleted the cause of action for fraud.

^[2] All further statutory references will be to the Code of Civil Procedure unless otherwise indicated.

^[3] It should be noted that although Oldenkamp purportedly complained to the Medical Board because of the falsification of the death certificate, the Board’s accusation against Sabo also alleges incidents of unprofessional conduct in caring for and treating Van Dorin.

^[4] Pursuant to this order, which appears in the record only as an exhibit to Desert Knolls’s summary judgment motion, the court overruled the demurrers made on the basis of the statute of limitations on the ground that the statutory bar was not shown on the face of the complaint; sustained Desert Knolls’s demurrer to the fraud cause of action, and granted 30 days leave to amend; overruled Desert Knolls’s and Sabo’s demurrers to the elder abuse cause of action; granted the motion to strike a portion of the prayer to the fraud cause of action, and granted 30 days leave to amend; and denied the motion to strike one of the paragraphs of the first amended complaint. As far as we can tell, Oldenkamp did not file another amended complaint.

^[5] It is curious that Oldenkamp takes the position that upon the filing of the Board’s accusation she learned that the death certificate had been falsified. In fact, the accusation merely asserts that Sabo is “subject to disciplinary action” because “the hospital death summary and the official death certificate should have been identical, and they were not.”

^[6] Of course, a plaintiff does have a remedy under such circumstances. As the Gutierrez court explained: “It is well settled that an attorney is liable for malpractice when his negligent investigation, advice, or conduct of the client’s affairs results in loss of the client’s meritorious claim. [Citation.] A legal malpractice suit is the traditional means of resolving allegations that an attorney’s misconduct caused a claim to become barred by the statute of limitations. [Citations.] By this means, the attorney who caused the delay, rather than the ‘innocent’ defendant, is charged with its consequences.” (Gutierrez v. Mofid, supra, 39 Cal.3d at p. 900.)

^[7] Oldenkamp raised this issue in the trial court. However, because we are not privy to the court’s order granting summary judgment, we do not know the basis for its decision or whether it considered Oldenkamp’s estoppel theory. Nor do we know if she pleaded facts in her complaint to support such a theory. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 886, p. 345.)

^[8] She further asserts that defendants’ conduct was criminal in nature in that failure to report neglect or abuse is a misdemeanor under Welfare and Institutions Code section 15630, subdivision (h); failure to furnish correct information affecting a death certificate is a misdemeanor under Health and Safety Code section 103775; and making or filing a false death certificate is a felony under Health and Safety Code section 103800.