Opinion
B226817
08-05-2011
RAMIRO POLANCO MENDEZ et al., Plaintiffs and Appellants, v. GEORGE GATHONI et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PC046592)
A patient with a cognitive disorder leaped from a hospital window and sustained serious injuries. He claims that the hospital or its agents negligently failed to supervise him when he was suicidal. The trial court dismissed two defendants from the patient's lawsuit on the grounds that the complaint is barred by the statute of limitations for medical negligence. (Code Civ. Proc., § 340.5.)
All undesignated statutory references in this opinion are to the Code of Civil Procedure.
Based on additional facts newly raised on appeal, we reverse the dismissal orders. Plaintiff must be allowed leave to amend his complaint to allege that he was unconscious—and unable to transact business or understand the nature or effect of his acts—for over a month following his injury. The statute of limitations was tolled during plaintiff's period of mental disability. (§ 352, subd. (a).)
FACTS
The facts are taken from the complaint: we must assume the truth of its allegations. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)
On September 26, 2008, Ramiro A. Polanco Mendez was an inpatient at Olive View-UCLA Medical Center (the Hospital), a facility operated by the County of Los Angeles (the County). Polanco was at the Hospital "for psychiatric evaluation due to altered mental state and his report that he believed himself to be at risk for suicide." He was diagnosed with a cognitive disorder and placed on a 14-day psychiatric hold, under one-on-one observation for his safety. While improperly supervised by the Hospital's "employees and/or agents [Polanco] was allowed to jump from a hospital window, causing severe injury to his person, including closed head trauma, subdural hematoma, brain damage, crushed feet and ankles, multiple fractures, and ruptured stomach."
The complaint alleges that fictitious "Doe" defendants are "nursing assistants, licensed vocational nurses, registered nurses, physicians and/or independent[ly] contracted medical personnel holding themselves out to be duly licensed to practice nursing, medical and related nursing and medical services in the State of California . . . ." Doe 1 is an "observation nurse" and Doe 2 is the "employer of" Doe 1.
PROCEDURAL HISTORY
After the County rejected his government claim, Polanco and his wife filed suit on October 6, 2009. The complaint asserts causes of action for medical negligence and loss of consortium arising from defendants' failure to properly supervise Polanco while he was a patient receiving psychiatric treatment. On October 13, 2009, Polanco amended the complaint to name respondent George Gothoni as "Doe 1," and respondent HRN Services, Inc., as "Doe 2."
Respondents demurred to the complaint, asserting that the action is barred by the one-year statute of limitations applicable to claims of medical negligence. Polanco replied that the Doe amendment related back in time to the filing of the original complaint. The trial court sustained the demurrer without leave to amend.
Polanco filed a motion for reconsideration regarding Gothoni's employment status. He noted that the County contracted with HRN Services to provide Gothoni as a "nursing sitter" at the hospital, to ensure that Polanco did not attempt suicide, and argued that Gothoni was a public employee—working under County supervision—on the day that Polanco was injured. The court denied reconsideration and signed orders dismissing respondents from the case. The appeal from the dismissal orders is timely.
Polanco's lawsuit was timely filed against the County, which is not a party to the demurrer or this appeal. Gothoni's status as a "special employee" of the County seems likely to arise as an issue this litigation.
DISCUSSION
1. Appeal and Review
Appeal lies from dismissal orders after demurrers are sustained without leave to amend. (§§ 581d, 904.1, subd. (a)(1); Serra Canyon Co. v. California Coastal Com. (2004) 120 Cal.App.4th 663, 667.) We review de novo the ruling on the demurrer, exercising our independent judgment to determine whether a cause of action has been stated as a matter of law. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.) The trial court's refusal to grant leave to amend and its denial of Polanco's motion for reconsideration are reviewed for an abuse of discretion. (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43-44; Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)
2. Facial Examination of Polanco's Complaint
Section 340.5 is the statute of limitations that applies to claims for negligence against a health care provider. Plaintiffs in a medical negligence case "discover" a cause of action upon learning the facts essential to the claim and "at least suspect that a type of wrongdoing has injured them." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807; Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1545.) The cause of action accrues "even if the plaintiff does not have reason to suspect the defendant's identity" because identity is not an element of a cause of action. (Fox v. Ethicon, supra, 35 Cal.4th at p. 807.)
It states, in pertinent part, "In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person."
The facts essential to Polanco's claim are the following: (1) Polanco was placed on suicide watch at the Hospital; (2) respondents observation nurse and the nurse's employer were hired to monitor Polanco to ensure his safety; (3) respondents left Polanco unattended; (4) while unattended, Polanco attempted suicide by leaping from a hospital window; and (5) Polanco suffered appreciable harm from his fall. Polanco's injury— meaning the negligent cause and the damaging effect of the alleged wrongful act—was manifest on the day it occurred, September 26, 2008. Polanco's complaint was filed more than one year later, on October 6, 2009. The complaint appears on its face to be barred by the statute of limitations, as to respondents, because it was filed more than one year after Polanco discovered his injury. It is unimportant that Polanco did not know respondents' identity: his claim would still accrue on the date of injury.
3. Motion for Reconsideration
In his opposition to the demurrer, Polanco repeatedly referred to respondents as "independent contractors." Polanco "had no way to know . . . that they weren't County of Los Angeles employees. . . . Plaintiffs did not learn the names or independent legal culpability of Defendants as independent contractors until October 12, 2009." In his motion for reconsideration, Polanco took a starkly different tack. Repudiating his former stance, Polanco claimed that "Defendant Gothoni is a public employee and the Court wrongfully accepted Defendant's bold assertion that Defendant Gothoni was an independent contractor at the time of the subject incident without any judicial analysis of the facts of employment." Polanco reasoned that because Gothoni was a public employee, and Polanco made a timely claim against the County, his claim against Gothoni is timely. The trial court protested that "you argued in opposition to the [demurrer] . . . that he was an independent contractor; right? And now you're arguing that he's a public employee."
On appeal, Polanco continues to falsely blame respondents for misleading the trial court into believing that Gathoni was an independent contractor. In fact, Polanco was the party who boldly asserted that respondents were "independent contractors" in his opposition to the demurrer. In ruling on the demurrer, the trial court unsurprisingly accepted Polanco's insistent characterization of respondents as independent contractors.
The trial court did not abuse its discretion by denying Polanco's motion for reconsideration. Polanco's "new" factual allegation (Gothoni is a County employee) is in direct opposition to his "old" factual allegation (Gothoni is an employee of HRN). As a rule, a party may not plead one set of facts in the complaint, then seek leave to file an amended complaint with contradictory facts, unless there is clear evidence that the earlier pleading is the result of mistake or inadvertence. (Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 386; Treager v. Friedman (1947) 79 Cal.App.2d 151, 172.) While Polanco may have made a mistake in his original pleading, there was no satisfactory explanation why he failed to rectify the mistake earlier when he knew all along that Gothoni was working at a County facility. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) Polanco only gave a new interpretation to previously available facts, which is not a "new" fact for purposes of reconsideration. (Id. at p. 213; § 1008.)
A party may, within 10 days of an order, apply to the court for reconsideration "based upon new or different facts, circumstances, or law." (§ 1008, subd. (a).)
4. New Contentions on Appeal
In his brief, Polanco offers new facts and theories to avoid the statutory time bar, and seeks leave to amend the complaint to allege the new facts. Respondents argue that Polanco waived the claims by failing to raise them in the trial court. The waiver argument is misplaced. A proposed amendment to the complaint is an issue that is "open on appeal even though no request to amend" the pleading was made in the trial court. (§ 472c, subd. (a); City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746; Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.)
"[L]eave to amend is properly granted where resolution of the legal issues does not foreclose the possibility that the plaintiff may supply necessary factual allegations. [Citation.] If the plaintiff has not had an opportunity to amend in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment." (City of Stockton v. Superior Court, supra, 42 Cal.4th at p. 747.) The appellate brief must spell out how an amendment can cure a defect or change the legal effect of the pleading. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Long v. Century Indemnity Co. (2008) 163 Cal.App.4th 1460, 1467-1468; People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112.) That showing "can be made for the first time to the reviewing court." (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711; Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153-1154.)
Polanco proposes to allege that he was in an unconscious and unresponsive state until October 30, 2008, as a result of brain injuries sustained in his fall at the Hospital. He contends that the statute of limitations was tolled during his month of unconsciousness, meaning that the period for filing his complaint would not end until October 30, 2009. The complaint filed on October 6, 2009 and the Doe amendment filed on October 13, 2009, fall within the statute of limitations, if tolled.
Polanco's tolling theory is supported by case law. When a person is "insane" at the time of injury, the mental disability tolls the statute of limitations. (§ 352, subd. (a).) Someone suffering a mental derangement who is incapable of transacting business or understanding the nature or effect of his or her acts is "insane" within the meaning of section 352. (Pearl v. Pearl (1918) 177 Cal. 303, 307; Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562, 571; DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1027.) If the plaintiff's mental disability is caused by the defendant's medical malpractice, the tolling continues until plaintiff is restored to sanity. (Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 230-232 [physician's negligence caused plaintiff's brain damage, tolling the statute of limitations for over two months while plaintiff was mentally disabled].) The disability must exist when the cause of action accrues. (§ 357.)
The tolling provision covers individuals who sustain head injuries rendering them unconscious or incompetent. If a plaintiff is attacked, struck on the head and rendered unconscious for 12 days, his complaint filed one year and one day after the attack is timely, because the statute of limitations was tolled during the plaintiff's 12 days of incapacity. (Feeley v. Southern Pacific Transportation Co. (1991) 234 Cal.App.3d 949, 951-953 [finding that "unconsciousness is 'insan[ity]' for purposes of section 352"].) Similarly, a plaintiff rendered incompetent by a stroke may invoke the tolling provision of section 352 in an action for medical negligence. (Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 96.)
Based on a misreading of Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, respondents argue that "a plaintiff's incompetence does not toll the statute of limitations period for medical malpractice actions, which is governed exclusively by Code of Civil Procedure section 340.5." Respondents are simply wrong. The insanity tolling provision in section 352 does apply in health care negligence cases, and it "compels tolling of the one-year limitation period . . . when a plaintiff is insane." (Alcott Rehabilitation Hospital v. Superior Court, supra, 93 Cal.App.4th at pp. 103-104, relying on Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928, which applied the imprisonment tolling provision of section 352.1 to a health care negligence case.) The Fogerty case only limits application of tolling provisions when the three-year maximum period for filing medical negligence cases is in play, i.e., the second sentence of section 340.5. (Belton v. Bowers, supra, 20 Cal.4th at pp. 931-932.) The three-year maximum period is not in play here; rather, only the one-year date of the discovery provision is at issue.
Polanco must be afforded an opportunity to amend his pleading to allege that he was unconscious, comatose, or mentally incapacitated at the time of injury, such that he was unable to transact business or understand the nature or effect of his acts. This new allegation allows the complaint to survive demurrer on the statute of limitations issue, because section 340.5 was tolled during Polanco's period of mental incapacity, and he filed his complaint within one year after his incapacity ended. Polanco must eventually prove the truth of this allegation, but not at this stage of the proceeding.
DISPOSITION
The judgment (orders of dismissal) is reversed, and the case is remanded for further proceedings, including the filing of an amended complaint. Polanco may recover his costs on appeal from respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.