Opinion
B299116
04-27-2021
MICHAEL BERLIN, Plaintiff and Appellant, v. TERRENCE T. KIM, et al., Defendants and Respondents.
Steiner & Libo and Leonard Steiner for Plaintiff and Appellant. Leibl, Miretsky & Mosely, Kathryn S.M. Mosely and Lee M. Moulin for Defendants and Respondents Cedars-Sinai Medical Center and Debraj Mukherjee. Fraser Watson & Croutch and Daniel K. Dik for Defendants and Respondents J. Patrick Johnson, and The Spine Center, A Medical Group, Inc. Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson and Vanessa M. Domenichelli; Reback, McAndrews, Blessey, Thomas McAndrews and Elizabeth Ann Neri for Defendant and Respondent Terrence T. Kim.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC686426) APPEAL from judgments of the Superior Court of Los Angeles County, Anthony J. Mohr, Judge. Affirmed. Steiner & Libo and Leonard Steiner for Plaintiff and Appellant. Leibl, Miretsky & Mosely, Kathryn S.M. Mosely and Lee M. Moulin for Defendants and Respondents Cedars-Sinai Medical Center and Debraj Mukherjee. Fraser Watson & Croutch and Daniel K. Dik for Defendants and Respondents J. Patrick Johnson, and The Spine Center, A Medical Group, Inc. Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson and Vanessa M. Domenichelli; Reback, McAndrews, Blessey, Thomas McAndrews and Elizabeth Ann Neri for Defendant and Respondent Terrence T. Kim.
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Plaintiff and appellant Michael Berlin, M.D. (plaintiff) sued defendants and respondents Terence Kim, M.D. (Dr. Kim), Debraj Mukherjee, M.D. (Dr. Mukherjee), J. Patrick Johnson, M.D. (Dr. Johnson), Cedars-Sinai Medical Center (Cedars-Sinai), and The Spine Center, A Medical Group, Inc. (Spine Center) for fraud relating to a spinal surgery performed on plaintiff in 2014. Plaintiff alleges that defendants failed to perform an element of the spine surgery to which he had consented, and then fraudulently concealed that failure by representing to plaintiff that the full surgery had been performed. Plaintiff alleges that he did not learn of the limited nature of the surgery and defendants' fraudulent concealment until March 2016, when a second surgery was performed by a different surgeon.
Although plaintiff is a medical doctor, it is his role as the plaintiff in this action that is relevant to this opinion. In an effort to avoid confusion, and intending no disrespect, we will refer to Dr. Berlin simply as "plaintiff."
Defendants demurred on a variety of grounds, including (as to Dr. Kim, Dr. Mukherjee, and Cedars-Sinai) that plaintiff's fraud claim was barred by the applicable statute of limitations. The trial court sustained defendants' demurrers, and we affirm. Although plaintiff has styled his cause of action as a fraud claim, the claim is "based upon" defendants' alleged professional negligence, and thus it is governed by the Medical Injury Compensation Reform Act's (MICRA) one-year statute of limitations. (Code Civ. Proc., § 340.5). Because plaintiff filed the present action more than one year after he allegedly learned of the limited nature of his surgery, the action is time-barred.
All subsequent undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Background
Consistent with the applicable standard of review, the following statement is drawn from the facts alleged in the operative complaint. (See Discussion, § I, post.)
In 2013 or 2014, plaintiff consulted with Dr. Johnson and Dr. Kim about severe pain in his back and right leg, which was accompanied by intermittent numbness, tingling, and weakness in his right foot. Dr. Johnson recommended that plaintiff undergo spine surgery—specifically, foraminotomies (widening of the bony passages through which the lumbar nerve roots exit the spine) at L4-5 and L5-S1, bilateral lumbar laminectomies (removal of bone from the back of the spine to decompress the central spinal canal) from L3 to L5, and fusion of the L3 and L4 vertebral bodies.
Plaintiff consented to the surgery, which Dr. Johnson, Dr. Kim, and Dr. Mukherjee performed on April 8, 2014. The surgeons' post-surgical notes state, among other things, that they performed foraminotomies at L4-5 and L5-S1, completely decompressing the exiting right L4 and L5 nerve roots.
In the months following the April 8, 2014 surgery, plaintiff continued to suffer pain, numbness, and weakness in his right leg and foot. In July 2015, he consulted with Dr. Esa-Pekka Palvimaki, a neurosurgeon in Finland, who recommended that plaintiff undergo a second surgery. Plaintiff alleges that during the course of that surgery, which was performed on March 17, 2016, Dr. Palvimaki discovered defendants had not performed the right L4-5 and L5-S1 foraminotomies or decompressed the right L4 and L5 nerve roots, as they had represented.
II.
The Prior Action
A. Complaint
Plaintiff filed a medical negligence action (BC612484) against Dr. Johnson and Cedars-Sinai in March 2016 (the prior action). The operative first amended complaint, filed in August 2016, alleged that Dr. Johnson had used an improper surgical technique—namely, excessive bone removal—which caused plaintiff pain and an abnormal gait.
In September 2016, plaintiff dismissed Cedars-Sinai with prejudice. Subsequently, in August 2017, plaintiff amended his complaint by substituting Spine Center for a Doe defendant.
In 2018, Spine Center moved for summary judgment, urging that the August 2017 amendment did not relate back to the filing of the original complaint, and thus the claim against it was time-barred. The trial court granted summary judgment for Spine Center; a different panel of this division reversed, concluding that a triable issue of material fact existed regarding plaintiff's knowledge of Spine Center's existence at the time he filed his original complaint. (Berlin v. Johnson (Dec. 10, 2019, B291929) [nonpub. opn.].)
During the pendency of the present appeal, the trial court again granted summary judgment for Spine Center. Plaintiff's appeal from that judgment remains pending.
B. Motion For Summary Judgment
Dr. Johnson moved for summary judgment. In support, he submitted the expert declaration of Dr. William Taylor, who opined that, to a reasonable medical probability, Drs. Johnson and Kim exercised their surgical judgment within the standard of care and did not remove excessive bone from plaintiff's spine.
In opposition, plaintiff submitted the declaration of Dr. Palvimaki, who opined, based on a postoperative MRI dated December 29, 2015, that a "right L5 distal foraminotomy had not been performed or had not been successfully performed, as the foraminal stenosis and far lateral hernia as well as the foraminal aspect of the facet joint appear similar in the postoperative MRI compared to the preoperative MRI." Plaintiff also submitted the expert declaration of radiologist Dr. Daniel Powers, who opined, based on his review of the relevant MRI and CT images, that to a reasonable degree of medical certainty, "[t]he right L5-S1 facet joint does not appear to have surgical changes to it and the right L5-S1 neuroforamina still remains stenotic due to the disc space narrowing, bony spurring and encroaching disc extension, which is visibly compressing the exiting L5 nerve, looking identical to that of its pre-operative state."
On November 30, 2017, the trial court granted summary judgment for Dr. Johnson. The court concluded that Dr. Johnson had satisfied his initial summary judgment burden, and plaintiff had failed to demonstrate triable issues as to Dr. Johnson's alleged failure to comply with the applicable standard of care. The court explained as follows:
"Neither the declaration of Dr. Palvimaki nor of Dr. Powers provides any opinions or testimony regarding the standard of care to which Dr. Johnson was subject when he operated on [plaintiff]. Dr. Powers only states that, based on his review of the MRI and CT images, there is no difference in appearance between [plaintiff's] right L5-S1 facet joint from before and after surgery. . . . The significance of this observation is not explained in that declaration. [¶] Dr. Palvimaki likewise does not describe what the operative standard of care is, from what source he derives his knowledge of it, or whether Dr. Johnson's conduct in operating on [plaintiff] fell below that standard. . . . Accordingly, [plaintiff's expert declarations are] insufficient to establish a triable issue of fact as to whether Dr. Johnson breached the applicable standard of care.
"However, [plaintiff] argues that Dr. Palvimaki testifie[d] that there was another potential breach of the standard of care when he describes how the 'right L5 foraminotomy' purportedly performed by Dr. Johnson in his operation actually 'had not been performed or had not been successfully performed.'. . . However, [Dr.] Palvimaki describes this possibility in isolation, and does not attribute it to a breach of any standard of care. . . . Neither Dr. Palvimaki nor Dr. Powers goes on to opine about the standard of care or causation. Without more, this evidence does not create a triable issue of material fact as to Dr. Johnson's breach of the standard of care, or to the causation of [plaintiff's] injury. . . .
"On the separate issue of whether Dr. Palvimaki's declaration can be used to rebut Dr. Taylor's declaration without defining the standard of care, . . [i]t is true that a narrow exception to the expert testimony requirement in medical malpractice cases exists where the 'conduct required by the particular circumstances is within the common knowledge of the layman,' such as where a surgeon leaves a scalpel in the body of a patient. . . . If [plaintiff] ha[d] created a triable issue of fact as to whether Dr. Johnson actually performed the procedure he said he would perform, then potentially expert testimony would not be necessary to conclude that Dr. Johnson was negligent (assuming causation).
"However, this was not Dr. Palvimaki's full opinion. Rather he opined that either Dr. Johnson did not perform the procedure or did not perform it . . . 'successfully.' This opinion has the same deficiency discussed above of not stating the applicable standard of care by which Dr. Palvimaki is assessing whether the foraminotomy was performed 'successfully.' Moreover, the court agrees with Dr. Johnson that the operation was a complex, multi-level, multi-technique procedure for which a layperson could not determine whether the foraminotomy was successful. . . . Thus, the determination of whether the foraminotomy was successfully performed is not [a case where] . . . '. . . the jury may infer negligence without the aid of an expert.' . . . [¶] . . . [¶]
"[Finally,] although Dr. Palvimaki testified that the 'right L5 distal foraminotomy had not been performed or had not been successfully performed,' neither Dr. Palvimaki nor any other expert testified to whether this conduct had contributed in any respect to [plaintiff's] injuries. [Plaintiff] argues that Dr. Johnson's purported 'failure to release the pressure on the nerve roots . . . caused [plaintiff] to undergo a second remedial surgery.' But [plaintiff] has offered no expert testimony to establish this fact, even from Dr. Palvimaki, who performed the second surgery.
"The court therefore finds that [plaintiff] has not produced substantial responsive evidence showing the existence of a triable issue of fact as to whether Dr. Johnson's purported negligence caused his injuries." (Italics added.)
Judgment for Dr. Johnson was entered on December 7, 2017. Plaintiff appealed, and this court affirmed the judgment on October 16, 2019. (Berlin v. Johnson (Oct. 16, 2019, B288003) [nonpub. opn.].)
III.
The Present Action
A. Operative Complaint
On December 11, 2017, plaintiff filed the present action against Dr. Johnson, Dr. Kim, Dr. Mukherjee, Cedars-Sinai, and Spine Center. The operative amended complaint (complaint) alleged that the defendant doctors recommended, and then claimed to have performed, foraminotomies at L4-5 and L5-S1. Specifically, the defendants' post-surgical notes and progress notes "repeatedly . . . stated that they performed extensive right L4-5 and L5-S1 proximal and distal foraminotomies, completely decompressing the exiting right L4 and L5 nerve roots, describing in detail how these procedures were done." In fact, "Dr. Johnson, Dr. Kim, and Dr. Mukherjee had materially misrepresented the nature and extent of the surgery they had performed on [plaintiff] on April 8, 2014," and specifically failed to disclose that "the right L4-5 and L5-S1 foraminotomies had not been performed and that the right L4 and L5 nerve roots had not been decompressed." These alleged misrepresentations, which were discovered when plaintiff underwent a second spine surgery performed by Dr. Palvimaki on March 17, 2016, were alleged to give rise to a cause of action for fraud by deceit or concealment.
B. Demurrers
All defendants demurred to the complaint. Defendants asserted that plaintiff's fraud claim was precluded by res judicata and collateral estoppel (all defendants), was time-barred by section 340.5 (Cedars-Sinai, Dr. Mukherjee, and Dr. Kim), and did not adequately plead the elements of fraud (Dr. Johnson and Spine Center).
Plaintiff's combined opposition asserted that the present action was not barred by res judicata or collateral estoppel because the appeal from the summary judgment for Dr. Johnson in the prior action was still pending, and thus it could not have preclusive effect; the summary judgment for Dr. Johnson could not have preclusive effect with regard to any of the other defendants; and plaintiff's voluntary dismissal of Cedars-Sinai from the prior action was not entitled to preclusive effect. Plaintiff also asserted that his claim was not subject to section 340.5 because it alleged fraud, not medical negligence, and his complaint adequately pled the elements of fraud.
The trial court sustained all three demurrers without leave to amend on February 21, 2021, based on "all the case law, all the reasons set forth in the moving papers by all the parties." Judgments were entered for Dr. Johnson and Spine Center on February 22, 2019, for Cedars-Sinai and Dr. Mukherjee on March 4, 2019, and for Dr. Kim on May 15, 2019. Plaintiff timely appealed.
DISCUSSION
Plaintiff contends the trial court erred in sustaining the demurrers because (1) the present action was commenced within the applicable statute of limitations; (2) the fraud cause of action was not barred by res judicata or collateral estoppel; and (3) the complaint adequately pled fraud.
As we discuss, section 340.5 provides the statute of limitations that governs the present action. Because plaintiff did not file this action within the limitations periods set forth in section 340.5—i.e., within "one year after the plaintiff discover[ed] . . . [his] injury" (§ 340.5)—the action is time-barred. The trial court thus properly sustained the demurrers without leave to amend.
I.
Standard of Review
"When a demurrer is sustained by the trial court, we review the complaint de novo to determine whether, as a matter of law, the complaint states facts sufficient to constitute a cause of action. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Reading the complaint as a whole and giving it a reasonable interpretation, we treat all material facts properly pleaded as true. (Ibid.) The plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action and overcoming all of the legal grounds on which the trial court sustained the demurrer, and if the defendant negates any essential element, we will affirm the order sustaining the demurrer as to the cause of action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880.) We will affirm if there is any ground on which the demurrer can properly be sustained, whether or not the trial court relied on proper grounds or the defendant asserted a proper ground in the trial court proceedings. (Id. at p. 880, fn. 10.)
"A trial court has discretion to sustain a demurrer with or without leave to amend. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.) If we determine that the plaintiff has met its burden to demonstrate that a reasonable possibility exists that the defect can be cured by amendment of the pleading, then the trial court has abused its discretion in denying leave to amend and we reverse the denial. (Ibid.) Otherwise, we affirm the judgment on the basis that the trial court has not abused its discretion. (Ibid.)" (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.)
II.
Plaintiff's Fraud Cause of Action is Time-Barred
Defendants urged in the trial court, and contend on appeal, that although plaintiff's claim is captioned as a fraud claim, it is "based upon" professional negligence. Defendants assert that plaintiff's fraud claim thus is time-barred by section 340.5, which governs claims "against a health care provider based upon such person's alleged professional negligence."
Plaintiff contends that his claim is not "based upon" defendants' negligence, but instead alleges "post-surgical fraud in failing to inform [plaintiff] that they had not actually performed the foraminotomies they stated that they performed." Thus, plaintiff urges, his claim is governed by the three-year statute of limitations of section 338, subdivision (d), not the one-year statute of limitations of section 340.5.
Section 338, subdivision (d), provides: "[The periods prescribed for the commencement of actions are as follows:] Within three years: . . . (d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake."
As we discuss, plaintiff's current fraud claim is "based upon" a claim of professional negligence and, accordingly, it is subject to the statute of limitations set forth in section 340.5. Because plaintiff filed the present action more than a year after learning of the facts giving rise to his claim, his action is time-barred.
A. Statutory Language
Section 340.5 is part of MICRA, which the Legislature enacted in 1975 in response to a "medical malpractice crisis." (Perry v. Shaw (2001) 88 Cal.App.4th 658, 667; Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 346 (Larson).) Section 340.5 provides that the time to commence an action "for injury or death against a health care provider based upon such person's alleged professional negligence" is either 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." (§ 340.5, italics added.)
MICRA included not only section 340.5, which shortened the limitations period for malpractice actions, "but also several other provisions that abolished the collateral source rule (Civ. Code, § 3333.1), limited noneconomic damages to $250,000 (Civ. Code, § 3333.2), authorized periodic payments of future damages without the plaintiff's consent (Code Civ. Proc., § 667.7), limited the contingency fees attorneys could charge (Bus. & Prof. Code, § 6146), authorized arbitration agreements in medical services contracts (Code Civ. Proc., § 1295), and required prior notice to health care providers before a malpractice action may be commenced (Code Civ. Proc., § 364)." (Larson, supra, 230 Cal.App.4th at p. 346.)
For purposes of section 340.5, "professional negligence" "means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." (§ 340.5.)
B. Application of Section 340 .5 to Intentional Tort Claims
Although section 340.5 facially applies to professional negligence actions, it is not limited to such actions. Our Supreme Court has said that in the context of actions by patients against their health care providers, there often is considerable overlap between intentional and negligent causes of action. (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.) Accordingly, "[b]ecause acts supporting a negligence cause of action might also support a cause of action for an intentional tort, [the court has] not limited application of MICRA provisions to causes of action that are based solely on a 'negligent act or omission' as provided in these statutes." (Ibid.) Instead, it has held that an action for damages may "arise out of" or be "based on" the professional negligence of a health care provider, even if such action is characterized as an intentional tort. (Id. at p. 191.)
Because of the overlap between negligent and intentional torts in the healthcare context, plaintiffs sometimes "will choose to assert intentional torts . . . hoping to evade the restrictions of MICRA." (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 653 (Unruh-Haxton).) Thus, 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. "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. [Citation.] 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." (Larson, supra, 230 Cal.App.4th at p. 347.)
The court considered whether an intentional tort claim was "based upon" professional negligence, and thus was subject to section 340.5, in Larson, supra, 230 Cal.App.4th 336. There, the plaintiff alleged causes of action for battery and intentional infliction of emotional distress against an anesthesiologist who allegedly grabbed and twisted the plaintiff's arm, pried open his mouth, and pushed and pulled on plaintiff's face and head during surgery. The anesthesiologist demurred, contending that section 340.5's one-year statute of limitations applied, and thus the plaintiff's claims were time-barred. The plaintiff urged, instead, that the two-year statute of limitations generally applicable to personal injury claims governed because he alleged intentional torts, not negligence.
The trial court sustained the anesthesiologist's demurrer, and the Court of Appeal affirmed. It noted that the plaintiff alleged the defendant, a physician, injured him in the course of administering anesthetic prior to and during a surgery to which plaintiff had consented, "by forcefully grabbing and twisting his arm while conducting a preoperative checkup, and by prying open [the plaintiff's] mouth and violently punching, lifting, and pushing [the plaintiff's] face as he put on the mask to administer anesthesia." (Larson, supra, 230 Cal.App.4th at p. 351.) These claims were subject to section 340.5 because, fundamentally, they "challenge the manner in which [the defendant] rendered the professional health care services he was hired to perform; they do not allege intentional torts committed for an ulterior purpose." (Id. at p. 351.) The court explained: "[T]he complaints in [the plaintiff's prior negligence action], and the allegations of the operative complaint, show [the plaintiff's] claims are based on how [the defendant] performed his preoperative checkup and how he administered anesthesia. [The plaintiff] alleges [the defendant] performed some of the tasks 'forcefully' and 'violently,' but those self-serving characterizations are merely attempts to avoid MICRA and the restrictions it imposes on all medical malpractice claims. Despite [the plaintiff's] characterizations, the nature of the acts on which he bases his claims form part of the professional health care services [the defendant] rendered as an anesthesiologist. [The plaintiff] simply claims [the defendant] performed his professional services in an unnecessarily harsh and forceful manner, which amounts to a claim [the defendant] failed to meet the applicable standard of care in rendering his services." (Id. at pp. 351-352.)
The court similarly concluded in Weinstock v. Eissler (1964) 224 Cal.App.2d 212 (Weinstock). There, the plaintiff alleged that he had consented to a cerebral angiogram, but not to a spinal tap. The defendant doctors nonetheless allegedly performed both procedures, and then failed to disclose the spinal tap in plaintiff's medical records in order to conceal from plaintiff "the fact that a spinal tap was performed," as well as "the negligence with which the cerebral angiogram and spinal tap were performed." (Id. at p. 217.) Based on his resulting injuries, the plaintiff asserted causes of action for medical malpractice, battery, and deceit. (Id. at pp. 217-220.)
The defendants demurred, and the trial court sustained the demurrer, concluding that the plaintiff's claims were time-barred. (Weinstock, supra, 224 Cal.App.2d. at pp. 222-225.) The Court of Appeal agreed that the one-year statute of limitations applicable to plaintiff's medical malpractice claim also applied to his intentional tort claims for battery and deceit. It explained: "The one-year statute of limitations is applicable even where, as here, the plaintiff-patient alleges a cause of action for deceit based on the physician's false representations or fraudulent concealment of the nature and extent of the injury. Such a cause of action has always been treated as one for malpractice." (Id. at p. 227; see also Tell v. Taylor (1961) 191 Cal.App.2d 266, 271 ["[A]ppellant has cited no authority in this state or elsewhere to indicate that it is possible to extend the statute of limitations in a personal injury action by bringing it on a theory of fraud. Rather, even though the plaintiff alleges false representations on the part of the physician or fraudulent concealment, our courts have always treated the action as one for malpractice"].)
The court reached a different result in Unruh-Haxton, supra, 162 Cal.App.4th 343. There, the plaintiffs were patients who had been treated for infertility in the late 1980's by two doctors at a clinic owned and operated by the Regents. After the fertility procedures, the doctors told some of the plaintiffs that their eggs were unsuitable for fertilization, and others that their eggs had been fertilized and the pre-embryos frozen for future use. Many years later, the Regents learned that the doctors had stolen eggs and pre-embryos from patients of the fertility clinic, including the plaintiffs, had sold some of the genetic material for research, and had implanted some of the pre-embryos in other women. (Id. at p. 350.) The Regents promised to notify all potential victims, but did not contact the plaintiffs. (Id. at pp. 349-352.)
Sometime after 2000, but within one year of learning that they had been victims of the doctors' scheme, the plaintiffs sued the Regents for a variety of intentional torts, including fraud, conversion, and intentional infliction of emotional distress. (Unruh-Haxton, supra, 162 Cal.App.4th at pp. 356-357.) The trial court sustained the Regents' demurrers, concluding that the plaintiffs' claims were based on professional negligence and, thus, were time-barred under section 340.5. (Unruh-Haxton, at p. 349.) The Court of Appeal reversed in part, concluding that section 340.5 did not apply to the plaintiffs' intentional tort claims. The court noted that "[n]one of the patients assert the egg harvesting medical procedures fell below the standard of care;" instead, "it is the intentional and malicious quest to steal genetic material that is the focus of the lawsuit." (Unruh-Haxton, at pp. 355-356.) Such allegations "of stealing and then selling a person's genetic material for financial gain is an intentional act of egregious abuse." (Id. at p. 355.) Accordingly, "[i]t would be inconsistent with the letter and spirit of the statutory scheme to hold allegations of intentional fraud, emotional distress, and stealing are really just another form of professional negligence. . . . [W]e have no reason to conclude the 'Legislature intended to exempt intentional wrongdoers from liability by treating such conduct as though it had been nothing more than mere negligence.' " (Id. at p. 356.)
C. Section 340.5 Applies to Plaintiff's Fraud Claim
As the foregoing discussion makes clear, the fundamental difference between Larson and Weinstock, on the one hand, and Unruh-Haxton, on the other, is the overlap between alleged negligent and intentional misconduct. In both Larson and Weinstock, the alleged intentional tort claims, like the underlying negligent tort claims, challenged the manner in which the defendants rendered the health care services they had been hired to perform. The intentional tort claims, thus, were "based upon"—i.e., were inextricably intertwined with—medical negligence claims because the same facts gave rise to both kinds of claims. In Unruh-Haxton, in contrast, the plaintiffs did not challenge the manner in which the contracted-for services were rendered; to the contrary, as the court noted, none of the plaintiffs alleged that the medical procedures performed by the defendants fell below the standard of care. Nor was medical negligence a necessary predicate to the plaintiffs' intentional tort claims: The theft of the plaintiffs' genetic material and pre-embryos was tortious even if the performance of the fertility procedures was within the standard of care. As such, the plaintiffs' intentional tort claims were "qualitatively different than" professional negligence. (Unruh-Haxton, supra, 162 Cal.App.4th at p. 353, citing Perry v. Shaw (2001) 88 Cal.App.4th 658, 663-664.)
In the present case, as in Larson and Weinstock—and unlike Unruh-Haxton—plaintiffs' fraud claim is "based upon" professional negligence because it relies on the same facts as, and is inextricably intertwined with, plaintiff's professional negligence claim. The operative complaint alleges that plaintiff consented to have defendants operate on his lumbar spine to relieve his back pain, and defendants purported to do so. Assertedly, however, defendants failed to widen the bony passages through which the lumbar nerve roots exit his spine at L4-5 and L5-S1, and further failed to disclose the omission. Although plaintiff now characterizes his claim as one for intentional concealment, his prior negligence action was based on the same underlying action—i.e., defendants' failure to "perform[] the [r]ight L5 distal foraminotomy." Thus, as in Larson and Weinstock, and as distinct from Unruh-Haxton, the alleged fraud cannot be separated from the alleged professional negligence because the information alleged to have been concealed from plaintiff is the alleged negligence itself.
Plaintiff contends that the present case is analogous to Unruh-Haxton because "nowhere in the [complaints in his prior action] is there even a hint or a suggestion as to the facts which are the basis for the [operative complaint in the present action], i.e., that the defendant doctors fraudulently concealed from [plaintiff], post-surgery, that they had not performed the foraminotomies they represented they had performed." In fact, although the operative complaint in the prior action did not allege that the foraminotomies were not performed, that allegation was central to plaintiff's opposition to defendants' motions for summary judgment. As we have described, plaintiff contended in opposition to summary judgment "that there was another potential breach of the standard of care [because] the 'right L5 foraminotomy' purportedly performed by Dr. Johnson in his operation actually 'had not been performed or had not been successfully performed.' " Thus, although the alleged failure to perform foraminotomies was not alleged in plaintiff's negligence complaint, it was actively litigated in the prior action.
Moreover, because section 340.5 applies to claims "based upon" professional negligence, the question before us is not whether professional negligence is, or has been, separately alleged, but instead whether plaintiff's fraud claim is "based upon" professional negligence. (See Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514 ["a plaintiff hoping to evade the restrictions of MICRA may choose to assert only seemingly non-MICRA causes of action"].) Manifestly, a claim may be "based upon" professional negligence even if such negligence has never been the subject of a lawsuit. Our inquiry, therefore, is not whether the present case is identical to plaintiff's prior negligence action, but instead whether it is grounded in, or intertwined with, professional negligence
Finally, plaintiff contends that his fraud claim is not subject to section 340.5 because "the claim against the doctor defendants is not based upon their 'professional negligence' in the operation they performed on [plaintiff], but rather is based upon the doctor defendants' post-surgical fraud in failing to inform [plaintiff] that they had not actually performed the foraminotomies they stated that they performed." As we have said, a claim does not avoid the MICRA statute of limitations simply by asserting a physician's failure to disclose his own medical negligence. Plaintiff's attempt to recast his negligence action as one for intentional fraud, therefore, does not entitle him to a lengthier statute of limitations.
D. Plaintiff's Fraud Claim Is Barred by Section 340 .5
Having concluded that section 340.5 applies to plaintiff's fraud claim, we now consider whether that claim is time-barred. As we have said, section 340.5 provides that an action based upon defendants' professional negligence must be brought within three years of 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 the present case, plaintiff alleges that Dr. Palvimaki discovered during plaintiff's second spine surgery on March 17, 2016 "that the right L4-5 and L5-S1 foraminotomies had not been performed and that the right L4 and L5 nerve roots had not been decompressed," and "so informed [plaintiff] of his findings shortly after the March 17, 2016 surgery." Plaintiff did not file the present action until December 11, 2017, well more than a year after learning of the alleged misrepresentations. Accordingly, plaintiff's fraud claim is time-barred, and defendants' demurrers were properly sustained. And, because plaintiff has not demonstrated that he can allege a timely claim, the trial court properly denied plaintiff leave to amend his complaint.
Plaintiff contends that even if his action is time-barred, the trial court nonetheless erred by sustaining the demurrer as to Dr. Johnson and Spine Center based on the statute of limitations because Dr. Johnson and Spine Center did not demur on that ground. Plaintiff is correct that Dr. Johnson's and Spine Center's demurrer did not contend that the present action is barred by the statute of limitations. Nonetheless, "[w]e will affirm if there is any ground on which the demurrer can properly be sustained, whether or not the trial court relied on proper grounds or the defendant asserted a proper ground in the trial court proceedings." (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031; see also Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 880, fn. 10 ["If another proper ground for sustaining the demurrer exists, this court will still affirm the demurrers even if the trial court relied on an improper ground, whether or not the defendants asserted the proper ground in the trial court"].) This is so because it would serve no purpose to send back to the trial court an action that would be subject to a demurrer immediately on remand. Accordingly, because the demurrers would have been properly sustained as to all defendants on statute of limitations grounds, we will affirm the orders sustaining the demurrers and the resulting judgments as to Dr. Johnson and Spine Center, as well as to the other defendants.
Having so concluded, we need not consider the alternative grounds raised in defendants' demurrers and on appeal.
DISPOSITION
The judgments are affirmed. Defendants are awarded their appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.