JOSE NUNEZ VS HEALTH NET INC ET AL

Tentative Rulings

Case Number: BC688713    Hearing Date: February 18, 2020    Dept: 61

Defendant Dignity Health’s Demurrer to the Third Amended Complaint is OVERRULED and its Motion to Strike is DENIED. Defendant to answer within 20 days.

1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

Dignity once again demurs to the Fourth Cause of Action for Negligence on the grounds that it is time-barred and uncertain.

Code of Civil Procedure § 335.1 creates a two-year limitations period for personal injury actions. Here, the relevant incident occurred between August 31, 2016 and November 28, 2016, as Nunez’s surgery was delayed, causing him blindness. (FAC ¶¶ 21–23.) Because the FAC naming Dignity was filed in May 2019, more than two years after November 28, 2016, Dignity argues that the claim is time-barred. (Demurrer at p. 8.)

Nunez responds that the claim against Dignity relates back to the filing of the original complaint in December 2017, within the two-year period, and that his claim against Dignity relates back to this earlier filing date. (Opposition at p. 5.)

An amended complaint is considered a new action for purposes of the statute of limitations only if the claims do not relate back to an earlier, timely-filed complaint. Under the relation-back doctrine, an amendment relates back to the original complaint if the amendment: (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action.

(Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch (2011) 195 Cal.App.4th 265, 276–77, citations and quotation marks omitted.) Here, because the allegations against Dignity relate to the same conduct that underlies Nunez’s original claims — Dignity is alleged to have withheld access to its facilities, further delaying the surgery (TAC ¶ 19) — they may relate back to the original complaint.[1]

But Dignity argues that relation back is not available because the SAC fails to plead with particularity when or how Nunez discovered Dignity’s alleged responsibility for his injury. (Demurrer at p. 11–13.) This was the argument that the court embraced on Dignity’s last demurrer. Nunez responds that the delayed discovery rule does not apply to amended complaints that add new defendants, effectively as Doe defendants under Code of Civil Procedure § 474. (Opposition at p. 6.)

Dignity further argues that Nunez cannot benefit from section 474 because Dignity was added as a wholesale new defendant in the FAC, not substituted in for a fictitious “Doe.” (Demurrer at pp. 10–12.) But this is not fatal to Nunez’s claim here, because a failure to comply “with the party substitution requirements of section 474” is “a procedural defect” which courts may overlook if the plaintiff “would [have been] . . . permitted to allege that [the added defendant] is a defendant substituted for a fictitious Doe defendant named in her original complaint.” (See Woo v. Superior Court (1999) 75 Cal.App.4^th 169, 177.)

It is “well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries.” (General Motors corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593–94.)

Nunez alleges that he only discovered Dignity’s involvement in the case in Spring 2019. (TAC ¶ 19.) This mere allegation was all the SAC contained, but Nunez now clarifies that it was in the deposition of Angeles IPA’s person most knowledgeable that he first learned “how dignity was involved in causing the eye surgery delay.” (TAC ¶ 19.) Although delayed discovery to overcome a facially time-barred claim must be pleaded with specificity (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4^th 797, 808) the court determines that Nunez has rectified this defect by these additional pleaded facts.

Dignity finally argues that the TAC does not plead the specific hospital that was contracted to provide a facility for Nunez’s retina surgery. (Demurrer at pp. 13–14.) But this argument is grounded on Dignity’s fact-based assertion that “it is more likely that a Dignity Health entity hospital,” and not Dignity itself, that “is responsible” for Nunez’s alleged delay. (Demurrer at pp. 13–14.) But this argument requires analysis beyond the pleadings or judicially noticeable materials, and the TAC is not otherwise ambiguous as to the source of Dignity’s alleged liability.

The Demurrer is therefore OVERRULED. Because the motion to strike rests on identical arguments, it is also DENIED.