PATRICIO MONROY VS SANTO TOMAS DENTAL GROUP, AN UNKNOWN ENTITY TYPE

Tentative Rulings

Case Number: 22BBCV00456 Hearing Date: March 10, 2023 Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR ORDER GRANTING RELIEF FROM DISMISSAL

ALLEGATIONS:

Patricio Monroy (“Plaintiff”) filed suit against Santo Tomas Dental Group (“Defendant”) alleging damages from dental work received in October of 2019. On June 23, 2022, Plaintiff filed the initial Complaint, and then filed his first amended complaint (“FAC”). The FAC contains causes of action for (1) Medical Malpractice, (2) Negligent Infliction of Emotional Distress, (3) Breach of Contract, (4) Battery, and (5) Violations of Cal. Bus. Prof. Code 17200.

HISTORY:

On December 9, 2022, the Court received a request for dismissal from Plaintiff as to the entire complaint. On December 15, 2022, the Court received a substitution of attorney for Plaintiff, reflecting that Plaintiff is now in this suit pro per. On February 6, 2023, Defendant filed its opposition to Plaintiff’s motion granting relief from dismissal. The Court notes that this was filed four days prior to Plaintiff filing the motion. On February 10, 2023, Plaintiff filed his motion. On February 27, 2023, Defendant re-filed its opposition.

ANALYSIS:

I. LEGAL STANDARD

Plaintiff seeks relief pursuant to Code of Civil Procedure 473(b). C.C.P. 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson supra, 32 Cal. App. 5th 166, at 173.) The discretionary provision of C.C.P. 473(b), in pertinent part, reads as follows:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…

The mandatory provision of C.C.P. 473 reads, in pertinent part, as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

The general underlying purpose of section 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Under this statute, an application for relief must be made within six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought, and it must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P., 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) A “mistake” justifying relief may be either a mistake of fact or a mistake of law. (u (2002) 96 Cal.App.4th 1357, 1368. A mistake sufficient to vacate a dismissal may be found where a party, under some erroneous conviction, does an act he would not do but for the erroneous conviction. (Id. at 1369.)

II. MERITS

Plaintiff asks that the court vacate the December 9, 2022 dismissal on grounds of attorney mistake. Plaintiff claims that prior to the dismissal he conferred with his counsel who informed him they intended to file for voluntary dismissal out of concern Defendant would file a motion to strike the FAC as a sham pleading. (Mot. pg. 3.) Plaintiff explains the timeline of the case as follows:

Plaintiff wrote the dental board in February of 2021

Plaintiff sought a second professional opinion in July of 2021, where he first learned of the medical malpractice

Plaintiff’s counsel filed the original Complaint in October 2021, referencing the February 2021 letter as the first time Plaintiff learned of the medical malpractice

Plaintiff’s counsel filed the First Amended Complaint but voiced that they believed the pleading would be struck down as a “sham pleading”

Plaintiff’s counsel informed him of the intent to file the dismissal, Plaintiff did not fully understand

Plaintiff’s counsel filed the dismissal

Plaintiff then informed his counsel that he wanted to continue the suit and act as his own attorney

Plaintiff submits his own declaration alongside the motion attesting to the inadvertent dismissal, but no affidavit from his prior counsel is submitted.

Defendant argues that Plaintiff produced insufficient evidence to show mistake, and Plaintiff’s declaration simply shows that Plaintiff conferred with his former counsel, counsel decided to file the dismissal, and then Plaintiff later had a change of heart. Defendant argues that Plaintiff’s decision to continue the litigation does not constitute a mistake under C.C.P. 473.

The Court finds that the mandatory provision of C.C.P. 473(b) does not apply to Plaintiff’s request for relief. Jackson v. Kaiser Foundation Hospitals, Inc., 32 Cal. App. 5th 166, concerned a case very similar to this one where an attorney advised voluntary dismissal without prejudice. The court in Jackson found that because plaintiff’s dismissal was voluntary and without prejudice that it did not equate procedurally to a default, and thus did not fall under the mandatory relief provision. (Id.) Here, Plaintiff’s dismissal was voluntary and without prejudice. As such, the Court analyzes whether relief from Plaintiff’s dismissal is available on a discretionary basis.

The Court does find that Plaintiff has shown mistake within the meaning of the discretionary provision of C.C.P. 473(b). As previously stated, a mistake justifying relief from dismissal under C.C.P. 473(b) can be one of either fact or law. (H.D. Arnaiz, LTD v. County of San Joaquin (2002) 96 Cal.App.4th 1357.) Here, Plaintiff states that he met with his prior counsel who informed him of their intent to dismiss the case. (Monroy Decl. 4.) Plaintiff then states that “After having the discussion about dismissal and reading their reasons I decided that I did not want the lawsuit dismissed…” (Id. at 5.) Plaintiff’s states that by the time he had reached this decision, the dismissal had already been filed. (Id.) The Court finds that this declaration is sufficient to show that a mistake occurred within the meaning of C.C.P. 473. Plaintiff stated he knew his prior counsel intended to file for dismissal, but that he misunderstood them at the time they spoke on the phone. (Motion pg. 2.) Plaintiff received an email containing his prior counsel’s reason for dismissal and decided that he did not want to dismiss the case (Id.) With Plaintiff’s explanation, the Court is satisfied as to his misunderstanding and finds that the dismissal was entered by mistake.

Defendant argues in opposition that no mistake occurred here. Plaintiff cites to Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 140, in stating that ignorance of legal matters or failure to properly represent oneself does not constitute mistake under the statute. The Court notes that Hopkins, plaintiff was an attorney representing himself. The court in Hopkins found that plaintiff was aware of the facts constituting his case and presented no misconception upon which a mistake of law could be founded. (Id. at 1413.) Further, the plaintiff in Hopkins was seeking relief from a judgment entered against him, not a dismissal filed of his own accord. As such, the Court finds the situation in Hopkins to be distinct from this case.

Defendant also argues that granting of this motion would be futile as Plaintiff’s claims are ultimately time barred. The Court acknowledges that Defendant’s arguments as to the statute of limitations and to the consistency of Plaintiff’s pleadings may be legitimate; however, given that the purpose of C.C.P. 473(b) is to promote adjudication on the merits, the Court finds it would be inappropriate to rely on these arguments in the instant motion. (Even Zohar supra, 61 Cal.4th 830.)

III. CONCLUSION

The Court GRANTS the motion for order granting relief from dismissal.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Patricio Monroy’s Motion for Order Granting Relief from Dismissal came on regularly for hearing on March 10, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR ORDER GRANTING RELIEF FROM DISMISSAL IS GRANTED.

PLAINTIFF TO GIVE NOTICE, UNLESS ALL PARTIES WAIVED NOTICE.

IT IS SO ORDERED.

DATE: March 10, 2023

F.M. TAVELMAN, Judge

Superior Court of California

County of Los Angeles

Case Number: 22BBCV00456 Hearing Date: September 16, 2022 Dept: A

22BBCV00456

DEMURRER AND MOTION TO STRIKE

ALLEGATIONS:

Patricio Monroy ("Plaintiff") filed suit against Evan Farr, D.D.S. dba Santo Tomas Dental Group, erroneously sued as Santo Tomas Dental Group, (“Defendant”), alleging that Defendant was negligent in performing tooth extractions on Plaintiff, which resulted in Plaintiff’s injuries. Plaintiff received treatment beginning in October 2019 and continued through 2020.

Plaintiff filed a Complaint on June 23, 2022, alleging the following five causes of action: (1) Medical Malpractice; (2) Negligent Infliction of Emotional Distress; (3) Breach of Contract; (4) Battery; and (5) Violation of Business and Professions Code 17200.

HISTORY:

The Court received the Demurrer filed by Defendant on August 15, 2022; the opposition filed by Plaintiff on September 1, 2022; and the reply filed by Defendant on September 9, 2022.

The Court received the Motion to Strike filed by Defendants on August 15, 2022. The Court has not received any opposition or reply.

RELIEF REQUESTED:

Defendant demurs to the entire Complaint on the ground that it is untimely. Defendant individually demurs to each cause of action raised in the Complaint on your

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Defendant move to strike the following portions of the Complaint:

1. Paragraph 48, Complaint, p. 7:6-7, stating: “Under Civil Code of Procedure 1021.5, et seq[.], Plaintiff also requests his reasonable Attorney’s fees in the court’s discretion.”

2. Prayer of Plaintiff’s Complaint in which he seeks attorneys’ fees pursuant to Civil Code of Procedure 1021.5. Complaint, p. 7:16 Prayer, 5; and

3. Prayer of Plaintiff’s Complaint in which he seeks punitive damages. Complaint, p. 7:15, Prayer, 4

ANALYSIS:

Demurrer

I. LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (CCP 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to CCP 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

II. MEET AND CONFER

CCP 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least five days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP 430.41(a)(4); CCP 435.5(a)(4).)

Although Defendant contends that the email correspondence between the parties satisfied the meet and confer requirement (Beale Decl. 2-3, Exh. A), CCP 430.41 explicitly states that it must be done by telephone or in person. Email correspondence or letters does not satisfy this procedural requirement. Nevertheless, the Court will proceed to address the merits of the demurrer despite this deficiency. (CCP 430.41(a)(4).) The Court cautions the parties that a code-compliant meet and confer effort is required for each demurrer and motion to strike on subsequent pleadings.

III. MERITS

A. Statute of Limitations

Defendant argues that the entire action is time-barred by the applicable statute of limitations. In its demurrer Defendants first address the first cause of action for medical malpractice under this argument before addressing the remaining claims. The Court shall take each argument in turn.

i. Whether the First Cause of Action for Medical Malpractice is Time-Barred

Defendant demurs to the first cause of action for medical malpractice on the ground that it is time-barred.

The statute of limitations for a medical malpractice is “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 occur first.” (CCP 340.5.) “Once a patient knows, or by reasonable diligence should have known, that [he] has been harmed through professional negligence, [he] has one year to bring [his] suit.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.) “[W]here the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies.” (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.)

Under CCP 364, “No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.” (CCP 364(a).) “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” (CCP 364(d).)

Here, Defendant argues, based on the allegations of the Complaint, Plaintiff became aware of his claims against Defendant as early as December 2020 or as late as February 2021 when the first letter of intent to sue was served. (Demurrer at pg. 8.) Thus, Defendant reasons that any claim for medical malpractice should have been filed in or around February 2022 at the latest, not June 23, 2022. (Id., CCP 340.5.) Defendant further argues that the tolling provision provided under Emergency Rule 9(a) is either inapplicable under the circumstances or fails to make Plaintiff’s claim timely. (Demurrer at pp. 8-9.)

In opposition, Plaintiff argues that, under Emergency Rule 9, the deadline for him to file his complaint was extended to August 2022. (Opposition at pp. 5-6.)

In reply, Defendant argues that Plaintiff misapplies Emergency Rule 9 because Defendant asserts that the tolling provision only applies if the cause of action accrued before or during the relevant period, i.e. between April 6, 2020 and October 1, 2020. (Reply at pg. 2.) As alleged in the Complaint, Defendant argues that the Plaintiff’s claim did not accrue until as late as February 2021, which is beyond the relevant period afforded by Emergency Rule 9. (Id.)

Upon review of the arguments, the Court finds that Emergency Rule 9 is inapplicable in this instance. Emergency Rule 9 provides, “[n]otwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020. Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020.” (CRC, Emergency Rule 9(a)-(b).) Thus, this tolling provision would have applied to the three-year statute of limitation provided under CCP 340.5, if the injury occurred as early as November 2019 when Plaintiff first began treatment with Defendant. (Compl. 16.) However, the Complaint specifically alleges that Plaintiff became aware of the damage caused by Defendant’s dental work by late 2020. (Compl. 19.) For the purposes here and to read the Complaint in the light most favorable to Plaintiff, the Court shall assume “late 2020” means “December 2020.”

In Plaintiff’s opposition, he contends that he was unable to receive “a proper determination [of his injury] until even after his February 2021 letter.” (Opposition at pg. 6.) However, this statement is in complete contradiction with the allegations made in the Complaint. As alleged, “Plaintiff sought a second opinion of his condition in late 2020 and was told his jaw had been damaged by Defendant.” (Compl. 19.) It is immaterial that Plaintiff received a third and fourth opinion in March and May 2021, respectively, when a notice to sue under CCP 364(d) was served in February 2021. (Compl. 20-21, 24.) Thus, the Court finds it questionable that Plaintiff did not receive a “proper determination” of his injury until after February 2021 when he was informed as early as late 2020 that his jaw was damaged by Defendant. (Compl. 19.) Thus, Plaintiff’s injury accrued in December 2020 when he first discovered it, which was long after the tolling period under Emergency Rule 9. (CCP 340.5.)

Moreover, because the right to sue notice was served in February 2021—two months after the discovery of his injury, the 90 day extension provided under CCP 364(d) does not apply because the notice was not served within 90 days of the expiration of the statute of limitations. It is immaterial that a second notice was sent on September 1, 2021 when Plaintiff retained new counsel. (Opposition at pg. 3.)

Furthermore, Plaintiff appears to make the argument that a two-year statute of limitations under negligence under CCP 335.1 should apply. (Opposition at pg. 7, relying on So v. Shin (2013) 212 Cal.App.4th 652, 666-667.) However, the Court does not find this argument persuasive. So v Shin stands for the proposition that a medical malpractice claim can be treated as ordinary negligence, as opposed to professional negligence, when the actions are not taken “for the purpose of delivering medical care to a patient.” (So, supra, 212 Cal.App.4th at pg. 667.) The Complaint directly alleges that Defendant’s action in providing medical care fell below the applicable care. (Compl. 18-20.) Thus, the two-year statute of limitations for ordinary negligence does not apply.

Accordingly, because Plaintiff failed to file his complaint within one year of discovery his injury as required under CCP 340.5, the first cause of action for medical malpractice is time-barred and the Court sustains the demurrer to the first cause of action without leave to amend.

ii. Whether the Remaining Causes of Action are Time-Barred

Defendant also demurs to the second through fifth causes of action on the ground that they are also time-barred.

“When a plaintiff asserts a claim against a health care provider on a legal theory other than professional negligence, courts must determine whether the claim is nonetheless based on the health care provider's professional negligence, which would require application of MICRA.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347.) “To make that determination, courts must examine not only the legal theory alleged, but also the nature of the health care provider's alleged conduct and the legislative history of the MICRA provision at issue.” (Id.) “When, as here, the question presented concerns which limitations period applies, courts also must focus on the nature or gravamen of the claim, not the label or form of action the plaintiff selects.” (Id.)

Defendant argues that Plaintiff’s claims for negligent infliction of emotional distress, breach of contract, battery, and violation of Business and Professions Code 17200 are derived from Plaintiff’s medical malpractice claim. (Demurrer at pp. 9-10.) Thus, Defendant reasons that because, the medical malpractice claim is time-barred so are the remaining causes of action. (Demurrer at pg. 10, relying on Larson, supra, 230 Cal.App.4th at 347.)

In opposition, Plaintiff fails to directly address this argument. Instead, Plaintiff contends that the remaining causes of action are still timely because their respective statute of limitations have not expired. (Opposition at pp. 7-8.) However, the Court does not find this argument persuasive. As in Larson, the statute of limitations under MICRA applies to other claims where the alleged conduct arises from professional negligence. (Larson, supra, 230 Cal.App.4th at 351.)

Upon review of the Complaint, it is clear that the remaining causes of action premised on Defendant’s rendering of his professional services. For instance, in the second cause of action, it is alleged that Defendant owed Plaintiff a duty as a medical professional not to injure Plaintiff and the injury was caused because Defendant “so neg negligently and carelessly performed the work.” (Compl. 24-26.) Similarly, the third cause of action for breach of contract alleges that Defendant failed to perform the services as agreed upon. (Compl. 32-34.) As for the fourth cause of action for battery, it is alleged that Defendant intentionally performed to work on Plaintiff in a negligent manner, which resulted in a non-consensual offensive contact with Plaintiff. (Compl. 37.) Lastly, as for the fifth cause of action for violation of the Business and Professions Code 17200, it is alleged that Defendant engaged in an unlawful business practice of misrepresenting Defendant’s competency in performing the services rendered. (Compl. 42-45.)

Consequently, based on these allegations, these remaining causes of action are inseparable from the first cause of action for medical malpractice. Therefore, the one-year statute of limitations under CCP 340.5 applies to the second through fifth cause of action.

Accordingly, because the second through fifth causes of action are premised on the performance of health care services provided by Defendant and the first cause of action for medical malpractice is time-barred, the Court sustains the demurrers to the second through fifth causes of action as they are also time-barred.

IV. CONCLUSION

The Court thus sustains the demurrer as to the Complaint without leave to amend because each claim is time-barred. In the interest of judicial economy, the Court declines to address Defendant’s remaining arguments that the causes of action have been insufficiently pleaded.

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Motion to Strike

Because the Court has sustained Defendant’s demurrer in its entirety, the Court denies as moot Defendant’s motion to strike.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Evan Farr D.D.S. Inc. dba Santo Tomas Dental Group’s Demurrer and Motion to Strike came on regularly for hearing on September 16, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED IN ITS ENTIRETY WITHOUT LEAVE TO AMEND.

THE MOTION TO STRIKE IS DENIED AS MOOT.

IT IS SO ORDERED.

DATE: September 16, 2022

F.M. TAVELMAN, Judge

Superior Court of California

County of Los Angeles