Opinion
D071737
06-21-2018
MANUEL ALVAREZ, Plaintiff and Appellant, v. PAUL JOSEPH GIRARD, Defendant and Respondent.
Manuel Alvarez, in pro. per., for Plaintiff and Appellant. Lotz, Doggett & Rawers, Thomas E. Lotz and Jennifer L. Kuzman for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00000638-CU-MM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed. Manuel Alvarez, in pro. per., for Plaintiff and Appellant. Lotz, Doggett & Rawers, Thomas E. Lotz and Jennifer L. Kuzman for Defendant and Respondent.
Plaintiff Manuel Alvarez appeals a summary judgment entered against him in his medical malpractice action against defendant Paul Joseph Girard, M.D. (Girard). Alvarez contends that the trial court erred by granting Girard's motion for summary judgment. Because Alvarez has not carried his burden on appeal to present comprehensible, substantive legal argument showing the trial court erred, we conclude he has waived or forfeited that contention and, in any event, has not persuaded us the court erred.
FACTUAL AND PROCEDURAL BACKGROUND
On or about January 25, 2014, while in Tijuana, Mexico, Alvarez sustained a gunshot wound to his left upper leg that fractured his femur and hip. Surgery was performed at a Tijuana hospital to stop the bleeding. He remained there for two weeks until he apparently refused further treatment and was discharged. After Alvarez crossed the border into the United States, an ambulance transferred him to Scripps Mercy Hospital Chula Vista.
On February 9, Alvarez was transferred to UC San Diego Medical Center (UCSD). At that time, his leg appeared to be infected. On February 11, Girard, an orthopedic surgeon, performed surgery on Alvarez, apparently inserting a metal rod and other hardware in his femur. On February 14, Alvarez was discharged.
On February 24, experiencing leg swelling and numbness, Alvarez went to UCSD's emergency room and was admitted to its trauma ICU. Later that day, Girard performed a second surgical procedure on him, consisting of an excisional debridement of his left hip wound and evacuation of a hematoma in his left thigh. Thereafter, Alvarez underwent multiple irrigation and debridement procedures, many of which were performed by Girard, to combat his infections.
On January 11, 2016, Alvarez, in propria persona, filed a complaint against Girard alleging one cause of action for general negligence. In particular, he alleged Girard negligently implanted a contaminated metal rod in his femur, which caused his infections and subsequent injuries. On May 9, Alvarez filed a first amended complaint, alleging causes of action against Girard for: (1) medical malpractice; (2) breach of contract; and (3) fraud.
Although the first amended complaint appeared to also allege a cause of action for breach of fiduciary duty, that cause of action was apparently considered by the parties and the trial court to be part of Alvarez's second cause of action for breach of contract.
Girard filed a motion for summary judgment or, in the alternative, summary adjudication of causes of action. In support of his motion, he submitted a declaration from Michael Bongiovanni, M.D. (Bongiovanni), his medical expert, and a separate statement of undisputed material facts, and lodged various exhibits. Girard argued there were no triable issues of material fact that precluded summary judgment because, inter alia, he submitted an expert declaration establishing that the care and treatment that he provided to Alvarez met the standard of care and, alternatively, all of the causes of action were barred by the applicable one-year statute of limitations (i.e., Code Civ. Proc., § 340.5). Bongiovanni declared that it was his professional opinion that Girard's care and treatment of Alvarez "was within the standard of care and that there is no evidence to suggest that the post-operative wound infection was caused or contributed to by any negligent surgical care provided by [Girard] during any of his surgeries." He further declared: "I have no reason to believe that the ongoing infections suffered by [Alvarez] . . . were caused by the . . . hardware placed by [Girard] at the time he surgically repaired [Alvarez's] femur fracture or at any subsequent time. [¶] . . . Although [Alvarez] did suffer from ongoing infections, . . . the source of the infection is likely from the original gunshot wound on January 25, 2014, and/or the delay in treatment for 17 days as well as [Alvarez's] chronic [noncompliance] with medical advice and repeatedly leaving medical facilities AMA (against medical advice)."
All statutory references are to the Code of Civil Procedure unless otherwise specified.
Alvarez opposed Girard's motion for summary judgment, but apparently did not respond to each of Girard's asserted undisputed material facts and did not submit his own statement of disputed material facts. In support of his opposition, Alvarez submitted, inter alia, a letter from the Medical Board of California (Board), dated May 18, 2016, responding to his complaint against Girard. That letter stated in part:
"Your complaint against Dr. Girard and the related medical records were reviewed by the Board's medical consultant to determine whether a departure from the standard of practice could be identified.Nevertheless, the Board's medical consultant concluded Girard's care and treatment of Alvarez did not warrant further investigation or action. Accordingly, the Board closed the case.
"In your complaint you indicated that Dr. Girard performed surgery that resulted in severe infection, additional procedures and the inability to walk.
"According to our medical consultant's findings the care and treatment provided by Dr. Girard represented a departure from the standard of care."
Girard filed a reply to Alvarez's opposition, arguing that Alvarez had failed to raise a question of fact regarding whether Girard's care and treatment of him met the standard of care because the Board's letter was not a declaration by a properly qualified expert and therefore Alvarez failed to submit sufficient evidence rebutting Bongiovanni's declaration that Girard's care and treatment of Alvarez met the standard of care. Girard also argued that Alvarez had not submitted any admissible evidence raising a triable issue of fact regarding the expiration of his causes of action based on the applicable one-year statute of limitations.
The trial court granted Girard's motion for summary judgment. First, the court sustained Girard's evidentiary objections to Alvarez's submission of the Board's letter dated May 18, 2016. Because Alvarez had not submitted any admissible expert opinion evidence to rebut Bongiovanni's opinions that Girard complied with the standard of care and was not a cause of harm to Alvarez, the court concluded there were no triable issues of material fact on those issues and Alvarez's professional negligence cause of action failed. The court additionally concluded section 340.5's statute of limitations applied to bar that cause of action because Alvarez first suspected on February 24, 2014, that there had been negligence in his care and treatment by Girard, but he did not file his complaint until January 11, 2016, more than one year thereafter. Because Alvarez's breach of contract and fraud causes of action arose out of the same basic allegations as his professional negligence cause of action, the court concluded those causes of action also failed. It further concluded his breach of contract cause of action was also barred by section 340.5's statute of limitations.
On December 30, 2016, the trial court entered judgment for Girard. Alvarez timely filed a notice of appeal.
DISCUSSION
I
Presumption of Correctness and Appellant's Burden on Appeal
A trial court's judgment or order is presumed to be correct. In Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557 (Denham), the court stated: "[I]t is settled that: 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown [by the appellant]. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Id. at p. 564.)
"The burden of affirmatively demonstrating error is on the appellant." (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971 (Fundamental).) "An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. . . . It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).) "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived. [Citations.]" (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone); see People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [if brief does not contain legal argument with citation of authorities on contention raised, court may treat it as waived].)
"Where a point is merely asserted by [appellant] without any [substantive] argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783 (Ham).) "Issues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 (Jones); see Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 (Landry) ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 (Ochoa) [contention was deemed waived because "[a]ppellant did not formulate a coherent legal argument nor did she cite any supporting authority"]; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 (Colores) ["The dearth of true legal analysis in her appellate briefs amounts to a waiver of the [contention] and we treat it as such."].) Appellants acting in propria persona are held to the same standards as those represented by counsel. (See, e.g., City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819.)
II
Waiver of Appellate Contentions
Girard asserts, and we agree, that Alvarez has waived his appellate contentions by failing to present any coherent or comprehensible, substantive legal arguments supported by citations to the record and legal authorities. In particular, he has not presented any coherent, substantive arguments or analyses showing that the trial court erred by concluding there were no triable issues of material fact on Alvarez's causes of action and that Girard was entitled to summary judgment. The legal argument section of his appellant's opening brief consists of four pages of incoherent and incomprehensible references to the Board's letter, which the trial court excluded, and Girard's discovery responses. His brief does not present any substantive legal argument showing the court erred by excluding the Board's letter or concluding there were no triable issues of material fact regarding Girard's care and treatment or the application of section 340.5's statute of limitations. Accordingly, we conclude Alvarez has waived his appellate contentions. (Benach, supra, 149 Cal.App.4th at p. 852; Falcone, supra, 164 Cal.App.4th at p. 830; Stanley, supra, 10 Cal.4th at p. 793; Ham, supra, 7 Cal.App.3d at p. 783; Jones, supra, 26 Cal.App.4th at p. 99; Landry, supra, 39 Cal.App.4th at pp. 699-700; Ochoa, supra, 61 Cal.App.4th at p. 1488, fn. 3; Colores, supra, 105 Cal.App.4th at p. 1301, fn. 2.)
In any event, assuming arguendo Alvarez has not waived his appellate contentions, we conclude that his appellate arguments are vague and conclusory and therefore he has not carried his burden on appeal by his failure to present any persuasive substantive argument or analysis showing the trial court erred as he contends. (Denham, supra, 2 Cal.3d at p. 564; Fundamental, supra, 28 Cal.App.4th at p. 971; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105 [conclusory claims did not persuade appellate court].)
III
Order Granting Girard's Motion for Summary Judgment
Assuming arguendo Alvarez has not waived his contentions on appeal, we nevertheless conclude the trial court did not err by granting Girard's motion for summary judgment. A. Summary judgment standard of review.
Summary judgment is appropriate when all of the papers submitted by the parties show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) A defendant who moves for summary judgment has the initial burden of showing each alleged cause of action is without merit. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A defendant can meet that burden by showing one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action. (§ 437c, subd. (p)(2).) If the defendant makes such a showing, the burden shifts to the plaintiff to produce evidence to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.; Aguilar, at pp. 849-851.) If the plaintiff fails to meet that burden, the motion for summary judgment will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 (Saelzler).)
On appeal from a summary judgment, we independently determine whether a triable issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) In so doing, "we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his or] her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler, supra, 25 Cal.4th at p. 768.) Regarding a trial court's evidentiary rulings on a motion for summary judgment, there is a split of authority on the question of whether we apply the de novo or abuse of discretion standard of review. (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368; cf. Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335 [abuse of discretion standard] with Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451 [de novo standard].) However, we need not address that split of authority because, under either standard of review, we conclude post that the trial court properly excluded the Board's letter dated May 18, 2016. B. Medical malpractice/professional negligence cause of action.
In moving for summary adjudication of Alvarez's first cause of action for medical malpractice, Girard argued that Alvarez could not establish either that Girard's care and treatment of him fell below the applicable standard of care or that any negligent care and treatment by Girard caused him harm. In support of his argument, Girard submitted Bongiovanni's declaration, as quoted ante, stating his professional opinion that Girard's care and treatment of Alvarez was within the standard of care and that there was no evidence to suggest that Alvarez's postoperative wound infection was caused in part by any negligent care provided by Girard. Bongiovanni further declared that he did not believe that Alvarez's infections were caused by the hardware that Girard surgically placed in his femur, and that the likely source of the infection was Alvarez's original gunshot wound on January 25, 2014, the delay in treatment for 17 days, and/or his noncompliance with medical advice. Girard alternatively argued that section 340.5's one-year statute of limitations barred Alvarez's cause of action for medical malpractice/professional negligence because Alvarez first suspected Girard was negligent on February 24, 2014, but did not file his action until January 11, 2016.
In a medical malpractice or professional negligence action against a physician, the plaintiff must establish: (1) the duty of the physician to use such skill, prudence, and diligence as other members of his or her profession commonly possess and exercise (i.e., the applicable standard of care); (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the physician's negligence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) "The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman." (Sinz v. Owens (1949) 33 Cal.2d 749, 753, cited with approval in Landeros v. Flood (1976) 17 Cal.3d 399, 410.) "If the evidence as to the requisite due care is uncontroverted, the trial court may properly address the question as a matter of law and proceed to a consideration of the defendant's alleged negligence." (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000 (Flowers).) In particular, if the plaintiff fails to submit expert opinion evidence rebutting the defendant's expert opinion evidence that the defendant did not breach the applicable standard of care, the defendant is entitled to summary judgment. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844 (Jambazian); Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412 (Willard) ["plaintiff's failure to submit the declaration of an expert in opposition to either motion for summary judgment is fatal to this appeal from the negligence count"].)
Based on our independent review of the record, we conclude Girard carried his initial burden in moving for summary judgment to show that Alvarez could not establish that he (Girard) had been negligent in his care and treatment of Alvarez. Girard submitted the declaration of Bongiovanni, his medical expert, stating his professional opinion that Girard's care and treatment of Alvarez was within the standard of care and that there was no evidence to suggest that Alvarez's postoperative wound infection was caused in part by any negligent care provided by Girard. Bongiovanni further declared that he did not believe that Alvarez's infections were caused by the hardware that Girard surgically placed in his femur, and that the likely source of the infection was Alvarez's original gunshot wound on January 25, 2014, the delay in treatment for 17 days, and/or his noncompliance with medical advice. Therefore, Girard presented expert opinion evidence showing that he was not negligent in caring for Alvarez and that Alvarez's harm was not caused by any negligent care by Girard.
Because Girard met his initial burden in moving for summary judgment, the burden then shifted to Alvarez to produce evidence rebutting Girard's expert opinion evidence and thereby make a prima facie showing of the existence of a triable issue of material fact on the element of Girard's alleged professional negligence (i.e., whether his conduct fell below the applicable standard of care). (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-851; Jambazian, supra, 25 Cal.App.4th at p. 844; Willard, supra, 121 Cal.App.3d at p. 412.) However, Alvarez failed to meet that burden. Alvarez did not submit any admissible expert opinion evidence on the question of Girard's alleged negligence. As noted ante, the trial court sustained Girard's evidentiary objections to Alvarez's submission of the Board's letter dated May 18, 2016, in opposition to Girard's motion for summary judgment. Although Alvarez does not expressly assert on appeal that the court erred by so doing, we nevertheless conclude the court properly sustained Girard's objections. The Board's letter refers, at most, to a review conducted by an unnamed medical consultant who purportedly concluded the care and treatment that Girard provided to Alvarez "represented a departure from the standard of care." That evidence constituted inadmissible hearsay of an unidentified, out-of-court declarant that was "offered to prove the truth of the matter stated." (Evid. Code, § 1200.) Furthermore, even if the Board's medical consultant had been identified in its letter, Alvarez did not submit any evidence showing that the consultant had the proper qualifications to testify as an expert on the subject of Girard's alleged negligence in this case. (Id., § 720, subd. (a).) In particular, Alvarez did not present any evidence establishing that the consultant had the requisite special knowledge, skill, experience, training or education regarding the appropriate care in the surgical implantation of metal rods or other hardware in a patient's legs. (Cf. Moore v. Belt (1949) 34 Cal.2d 525, 531-532 (Moore) [autopsy surgeon who did not practice urology or conduct genito-urinary examinations was not qualified to opine on cause of urinary tract infections].)
Absent a declaration by the Board's medical consultant or other admissible evidence establishing his or her qualifications to render an expert opinion on Girard's alleged negligence in the circumstances of this case, the opinion of the Board's medical consultant was inadmissible on the question of whether Girard was negligent in his care and treatment of Alvarez. (Evid. Code, § 720, subd. (a); Moore, supra, 34 Cal.2d at pp. 531-532.) Therefore, the trial court correctly sustained Girard's objections to the Board's letter submitted by Alvarez in opposition to Girard's motion for summary judgment. Because that evidence was properly excluded and Alvarez does not cite, and we are unaware of, any other admissible evidence submitted by Alvarez to rebut the expert opinion evidence submitted by Girard, Alvarez failed to carry his burden to produce expert opinion evidence making a prima facie showing of the existence of a triable issue of material fact on the question of whether Girard was negligent in his care and treatment of him (i.e., whether Girard's conduct fell below the applicable standard of care). Accordingly, because Girard submitted uncontradicted evidence showing he was not negligent in his care and treatment of Alvarez, the court correctly concluded that there was no triable issue of material fact on that element of Alvarez's cause of action for medical malpractice/professional negligence and that Girard was entitled to summary judgment on that cause of action. (§ 437c, subd. (c); Flowers, supra, 8 Cal.4th at p. 1000; Aguilar, supra, 25 Cal.4th at pp. 849-851; Jambazian, supra, 25 Cal.App.4th at p. 844; Willard, supra, 121 Cal.App.3d at p. 412.)
To the extent Alvarez may argue that his own declaration rebutted the expert opinion evidence submitted by Girard and created a triable issue of material fact, we reject that argument and conclude Alvarez's declaration was inadmissible on the issue of Girard's alleged professional negligence for the same reasons as was the medical consultant's opinion expressed in the Board's letter.
Furthermore, the trial court also properly granted Girard's motion for summary adjudication of Alvarez's cause of action for medical malpractice/professional negligence based on the alternative ground that section 340.5's statute of limitations barred that cause of action. Section 340.5 provides 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. . . ." (Italics added.) Accordingly, "regardless of extenuating circumstances, the patient must bring his suit within one year after he discovers, or should have discovered, his 'injury.' " (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896 (Gutierrez).) "Possession of 'presumptive' as well as 'actual' knowledge will commence the running of the statute. The applicable principle has been expressed as follows: 'when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation . . . the statute commences to run.' [Citation.]" (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 101 (Sanchez).) Therefore, "when the patient's 'reasonably founded suspicions [have been aroused],' and she has actually 'become alerted to the necessity for investigation and pursuit of her remedies,' the one-year period for suit begins." (Gutierrez, at p. 897.)
In this case, the evidence submitted on Girard's motion for summary judgment clearly shows that Alvarez knew of both his injury and Girard's suspected professional negligence no later than February 22, 2014. Girard requested that Alvarez answer certain special interrogatories, including special interrogatory No. 11 that asked: "Please indicate the date where [sic] you felt suspected that there had been negligence in your care and treatment by Dr. Girard." In response to that special interrogatory, Alvarez answered: "February 22, 2014 [sic]." Because Alvarez admitted that on February 22, 2014 (or, as noted ante, no later than February 24, 2014), he suspected Girard had been negligent in his care or treatment of him resulting in an injury and the record shows Alvarez did not file the instant action until more than one year later (i.e., on January 11, 2016), the trial court correctly concluded that Alvarez's cause of action for medical malpractice/professional negligence was barred by section 340.5's statute of limitations. (Gutierrez, supra, 39 Cal.3d at p. 897; Sanchez, supra, 18 Cal.3d at p. 101.) C. Breach of contract cause of action.
Based on our review of the record on appeal, it is possible Alvarez intended to instead answer February 24, 2014, which was the date on which he returned to UCSD and underwent a second procedure. Regardless of whether the actual date on which he first suspected Girard acted negligently was February 22 or February 24, Alvarez's action was clearly filed more than one year later (i.e., on January 11, 2016).
In moving for summary adjudication of Alvarez's second cause of action for breach of contract, Girard argued that claim was based on the allegation that he had implanted a contaminated metal rod in Alvarez's femur that caused Alvarez's injury/infections. Girard further argued that because he submitted Bongiovanni's declaration stating that he had not implanted a contaminated metal rod in Alvarez and had not caused Alvarez's infections and Alvarez failed to rebut that declaration, it was undisputed that Girard's conduct did not cause Alvarez's injury and therefore Girard was entitled to summary adjudication as a matter of law. Girard alternatively argued that section 340.5's one-year statute of limitations barred Alvarez's cause of action for breach of contract because the gravamen of that cause of action was Girard's alleged medical malpractice/professional negligence in implanting a contaminated metal rod in his femur and Alvarez first suspected Girard was negligent on February 24, 2014, but did not file his action until January 11, 2016.
Based on our review of Alvarez's first amended complaint, we conclude that his breach of contract cause of action was necessarily premised on his allegation that Girard implanted a contaminated metal rod in his femur. However, in support of Girard's motion for summary judgment, Bongiovanni declared that he did not believe that Alvarez's infections were caused by the hardware that Girard surgically placed in his femur and that the likely source of the infection was instead Alvarez's original gunshot wound on January 25, 2014, the delay in treatment for 17 days, and/or his noncompliance with medical advice. Also in support of his motion for summary judgment, Girard submitted his own declaration in which he stated: "I did not use contaminated hardware," and "[t]he equipment is sterile and sterile techniques were followed during these surgical procedures." By submitting that evidence, Girard met his initial burden to show that Alvarez could not establish the elements of a breach of a contract and causation, and therefore the burden then shifted to Alvarez to produce evidence rebutting Girard's evidence. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-851.) However, we, like the trial court, conclude that Alvarez, in opposing the motion for summary judgment, failed to produce any evidence to rebut the declarations of Bongiovanni and Girard that Girard did not, in fact, implant a contaminated metal rod in Alvarez's femur and that his infections were likely caused by other factors (e.g., Alvarez's original gunshot wound on January 25, 2014, the delay in treatment for 17 days, and/or his noncompliance with medical advice). Therefore, Alvarez did not meet his burden to produce evidence to establish the existence of a triable issue of material fact on his breach of contract claim that was based on Girard's alleged implantation of a contaminated metal rod in his femur. Accordingly, Girard was entitled to summary adjudication of the cause of action for breach of contract. (§ 437c, subd. (c); Aguilar, at pp. 849-851.)
In addition, we, like the trial court, further conclude section 340.5's statute of limitations barred the cause of action for breach of contract. Although the statute of limitations for breach of contract actions generally is either two years for oral contracts (§ 339) or four years for written contracts (§ 337), those statutes of limitations do not apply if the gravamen of the claim is not, in fact, a breach of contract but instead another claim (e.g., negligence). "To determine the statute of limitations which applies to a cause of action it is necessary to identify the nature of the cause of action, i.e., the 'gravamen' of the cause of action. [Citations.] '[T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations under our code.' [Citation.]" (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22-23; see Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347 (Larson) ["When . . . 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."].) Based on our review of Alvarez's first amended complaint, we conclude the gravamen of his second cause of action was not for breach of a contract, but instead for injuries suffered based on Girard's alleged negligent implantation of a contaminated metal rod in his femur. Therefore, section 340.5's one-year statute of limitations applies to Alvarez's second cause of action and, as discussed ante, bars that cause of action because Alvarez did not file his action within one year of suspecting Girard had caused his injury by allegedly implanting a contaminated metal rod in his femur. Accordingly, Girard is entitled to summary adjudication on Alvarez's second cause of action on the alternative ground that section 340.5's statute of limitations barred that cause of action. (§ 437c, subd. (c); Aguilar, supra, 25 Cal.4th at pp. 849-851; cf. Larson, at pp. 350-352.) D. Fraud cause of action.
In moving for summary adjudication of Alvarez's third cause of action for fraud, Girard similarly argued that claim was based on the allegation that he had implanted a contaminated metal rod in Alvarez's femur that caused Alvarez's injury/infections. Girard further argued that because he submitted Bongiovanni's declaration stating that he had not implanted a contaminated metal rod in Alvarez and had not caused Alvarez's infections and Alvarez failed to rebut that declaration, it was undisputed that Girard did not commit fraud by concealing implantation of a contaminated metal rod and therefore Girard was entitled to summary adjudication as a matter of law. Girard alternatively argued that section 340.5's one-year statute of limitations barred Alvarez's cause of action for fraud because the gravamen of that cause of action was Girard's alleged medical malpractice/professional negligence in implanting a contaminated metal rod in his femur and Alvarez first suspected Girard was negligent on February 24, 2014, but did not file his action until January 11, 2016.
Based on our review of Alvarez's first amended complaint, we conclude that his fraud cause of action was necessarily premised on his allegation that Girard implanted a contaminated metal rod in his femur. By submitting the declarations of Bongiovanni and Girard, Girard met his initial burden to show that Alvarez could not establish the elements of fraudulent concealment and causation, and therefore the burden then shifted to Alvarez to produce evidence rebutting Girard's evidence. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-851.) However, we, like the trial court, conclude that Alvarez, in opposing the motion for summary judgment, failed to produce any evidence to rebut Girard's evidence that he did not, in fact, implant a contaminated metal rod in Alvarez's femur and that his infections were likely caused by other factors (e.g., Alvarez's original gunshot wound on January 25, 2014, the delay in treatment for 17 days, and/or his noncompliance with medical advice). Therefore, as we concluded ante regarding his first and second causes of action, Alvarez did not meet his burden to produce evidence to establish the existence of a triable issue of material fact on his fraud claim that was based on Girard's alleged implantation of a contaminated metal rod in his femur. Accordingly, Girard was entitled to summary adjudication of the cause of action for fraud. (§ 437c, subd. (c); Aguilar, at pp. 849-851.)
In addition, we further conclude section 340.5's statute of limitations barred the cause of action for fraud. Based on our review of Alvarez's first amended complaint, we conclude the gravamen of his third cause of action was not for fraud, but instead for injuries suffered based on Girard's alleged negligent implantation of a contaminated metal rod in his femur. Therefore, section 340.5's one-year statute of limitations applies to Alvarez's third cause of action and, as discussed ante, bars that cause of action because Alvarez did not file his action within one year of suspecting Girard had caused his injury by allegedly implanting a contaminated metal rod in his femur. Accordingly, Girard is entitled to summary adjudication on Alvarez's third cause of action on the alternative ground that section 340.5's statute of limitations barred that cause of action. (§ 437c, subd. (c); Aguilar, supra, 25 Cal.4th at pp. 849-851; cf. Larson, supra, 230 Cal.App.4th at pp. 350-352.) Because we conclude Girard was entitled to summary adjudication of all of Alvarez's causes of action, the trial court correctly granted Girard's motion for summary judgment. (§ 437c, subd. (c).)
DISPOSITION
The judgment is affirmed. Defendant to recover his costs on appeal.
McCONNELL, P. J. WE CONCUR: O'ROURKE, J. DATO, J.