memorandum of points and authorities in support of motion of defendant

Cal. Super. - 1st Dist.October 29, 2021

3 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VANESSA L. EFREMSKY, ESQ. (State Bar No. 195973); vefremsky@dndmlawyers.com SONJA M. DAHL, ESQ. (State Bar No. 130970); sdahl@dndmlawyers.com DONNELLY NELSON DEPOLO MURRAY & EFREMSKY A Professional Corporation 201 North Civic Drive, Suite 239 Walnut Creek, CA 94596 Tel. No. (925) 287-8181 Fax No. (925) 287-8188 Attorneys for Defendant THE REGENTS OF THE UNIVERSITY OF CALIFORNIA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ALEXANDRA VUKSICH, Plaintiff, vs. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; MARCO PATTI, M.D.; and JAMES OSTROFF, M.D., and Does 1-50, inclusive, Defendants. Case No. CGC-18-572081 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA FOR SUMMARY JUDGMENT Date: June 17, 2020 Time: 9:30 a.m. Dept.: 302 Reservation No. 03270617-08 Complaint Filed: December 13, 2018 Trial: July 20, 2020 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 04/01/2020 Clerk of the Court BY: DAVID YUEN Deputy Clerk 4 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION. .................................................................................................................. 6 II. STATEMENT OF FACTS....................................................................................................... 6 III. DISCUSSION ........................................................................................................................ 9 A. BURDEN OF PROOF/STANDARD FOR DECISION ON SUMMARY JUDGMENT. .............................................................................................................. 9 B. EXPLANATION OF THE STATUTE OF LIMITATIONS IN THIS CASE. ................... 10 C. COMMENCEMENT OF THE ONE-YEAR STATUTE OCCURS WITH “DISCOVERY.” ......................................................................................................... 10 1. Actual suspicion. ........................................................................................... 11 2. Constructive suspicion. ................................................................................. 12 D. “DISCOVERY” OCCURRED IN THIS CASE IN 2011. .............................................. 13 E. ONCE “DISCOVERY” OCCURS, FAILURE TO DISCLOSE IS NOT RELEVANT. ............................................................................................................. 14 F. THE SECTION 364 90-DAY NOTICE HAD NO EFFECT UPON THE STATUTE OF LIMITATIONS. ................................................................................... 15 IV. CONCLUSION ..................................................................................................................... 15 5 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826............................................................... 10, 11 Ashworth v. Memorial Hosp. (1988) 206 Cal.App.3d 1046 .............................................................. 15 Barber v. Superior Court (1991) 234 Cal.App.3d 1076 .................................................................... 15 Bennett v. Shahhal (1999) 75 Cal.App.4th 384 ................................................................................ 16 Bernson v. Browning-Ferris Industries of California (1994) 7 Cal.4th 926, 932 ................................ 13 Christ v. Lipsitz (1979) 99 Cal.App.3d 894 ....................................................................................... 14 Dolan v. Borelli (1993) 13 Cal.App.4th 816 ................................................................................ 12, 15 Eriksson v. Nunnink (2011) 191 Cal.App.4th 826 ............................................................................ 11 Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797 .......................................................... 12, 15 Graham v. Hansen (1982) 128 Cal.App.3d 965 ................................................................... 13, 14, 15 Gutierrez v. Mofid (1985) 39 Cal.3d 892 .......................................................................................... 13 Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 ................................................................. 12, 13, 14, 15 Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990................................................... 10 Kleefeld v. Superior Court (1994) 25 Cal.App.4th 1680 ................................................................... 13 Knowles v. Superior Court (2004) 118 Cal.App.4th 1290 ................................................................. 13 Mock v. Santa Monica Hosp. (1960) 187 Cal.App.2d 57 .................................................................. 14 Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 ................................................................................... 12 Reid v. Google, Inc. (2010) 50 Cal.4th 512 ...................................................................................... 10 Rose v. Fife (1989) 207 Cal.App.3d 760 .......................................................................................... 14 Sanchez v. South Hoover Hosp. (1976) 18 Cal.3d 93...................................................................... 15 Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319 ........................................................ 11 Woods v. Young (1991) 53 Cal.3d 315 ............................................................................................ 15 Statutes Cal. Code Civ. Proc. § 340.5 ........................................................................................................... 11 Cal. Code Civ. Proc. § 364(d) .......................................................................................................... 15 Cal. Code Civ. Proc. §312 ............................................................................................................... 11 6 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION. This is an action for medical negligence. Plaintiff, Alexandra Vuksich, underwent a gastrointestinal surgical procedure in the year 2000, after which she suffered a number of concerning and puzzling symptoms. Several years later, she asked her gastroenterologist whether he thought something could have been left behind in her abdomen at the time of the operation. He said no. Shortly thereafter, a diagnosis was made that explained the symptoms and made sense to Ms. Vuksich. In 2011, Ms. Vuksich had just experienced a disabling eruption of symptoms, and had seen an imaging study report mentioning a “foreign object” in her abdomen. She wrote an email to her primary care physician, stating her suspicion that her ongoing symptomatology was due to something untoward happening during her 2000 operation, and mentioning that she had seen a CT scan report describing an “unidentified foreign object” in her abdomen. However, Ms. Vuksich elected not to investigate further. In November 2017, the foreign object was discussed during a visit to plaintiff’s urologist, and it was removed soon after. This lawsuit followed. Defendant now moves for summary judgment because under California law, the statute of limitations commenced to run in 2011, when the plaintiff “suspected” that “someone had done something wrong” during the 2000 procedure, and she had seen an imaging study mentioning a possible foreign object, and she linked both of these suspicions to her symptomatology that had become a “glaring problem” after the procedure. II. STATEMENT OF FACTS Plaintiff alleges a single claim of medical negligence against the Regents of the University of California based upon her discovery of a foreign object left behind within her abdomen during abdominal surgery performed at UCSF Medical Center in the year 2000. [UMF No. 1] In the year 2000, Alexandra Vuksich was suffering from severe gastrointestinal symptoms including almost nightly vomiting and almost constant acid reflux. [UMF No. 2] Dr. Marco Patti performed a Nissen fundoplication operation upon Ms. Vuksich on May 3, 2000 at the University of 7 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California San Francisco Medical Center. [UMF No. 3] Before the operation, Dr. Patti explained the risk and benefits of the procedure to Ms. Vuksich. [UMF No. 4] After a period of time of healing from the surgery itself, Ms. Vuksich noticed several concerning new symptoms, including a sensation that she had to urinate all the time, ataxia, heart palpitations, fatigue and nausea. She also found that exercise now resulted in abdominal pain, and she was no longer able to do sit-ups; she had previously been able to do 50 sit-ups per day. [UMF No. 5] Ms. Vuksich took these complaints to her gastroenterologist at UCSF, Dr. Ostroff, for investigation on multiple occasions. Dr. Ostroff ordered imaging studies, and checked the patient’s’ previously-existing liver hemangiomas and pancreatic cyst. He told her the tests found nothing wrong, and he had no explanation for her symptoms. [UMF No. 6] Ms. Vuksich’s primary care physician, Dr. Julian, had her symptoms thoroughly checked out from a cardiac standpoint, and she underwent full cardiac workups, including numerous treadmill tests. No abnormalities were found. [UMF No. 7] Ms. Vuksich felt that Dr. Ostroff always went to the same tests, which showed nothing, and he became dismissive of her symptoms. She felt that Dr. Julian was genuinely trying to figure out what was causing her symptoms, ordering whatever she could think of in order to explain the symptoms. [UMF No. 8] After several years of evaluations of her new symptomatology with no answers, Ms. Vuksich asked Dr. Ostroff if something could have been left behind inside her abdomen during Dr. Patti’s surgery in 2000. [UMF No. 9] Dr. Ostroff said he did not think anything had been left behind by Dr. Patti, but Ms. Vuksich was not satisfied with that response, so she asked to be referred to a different doctor. Dr. Ostroff referred Ms. Vuksich to Dr. Terdimann. [UMF No. 10] Ms. Vuksich saw Dr. Terdimann on April 29, 2003. At the time of her visit with Dr. Terdimann, she had been experiencing chronic symptoms including epigastric discomfort, cramping and diarrhea and a feeling of fullness in her throat, with occasional vomiting. Dr. Terdimann noted that the abdominal symptoms were associated with a much larger set of symptoms, including headache and flushing on one half of her face and nose, extreme fatigue, lightheadedness, chills on one side of her body, and very cold extremities. [UMF No. 11] Dr. Terdimann told Ms. Vuksich he had just been to a medical conference where they were discussing abdominal migraines. He wondered if that 8 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 could explain her symptoms. He referred Ms. Vuksich to a neurologist who specialized in migraines. [UMF No. 12] On June 23, 2003, Ms. Vuksich saw Neil Raskin, M.D., a UCSF neurologist, who took an extensive medical history going all the way back into childhood. Dr. Raskin said he believed the diagnosis of abdominal migraines explained her symptoms. He told Ms. Vuksich that the abdominal migraines could not be prevented, but they could be mitigated. This diagnosis made sense to Ms. Vuksich. [UMF No. 13] Dr. Raskin prescribed a number of medications, whose side effects Ms. Vuksich was unhappy with. Over time, Ms. Vuksich found medications that seemed to mitigate the symptoms when they began. From that point on, she concluded that her symptomatology was due to migraines and stopped trying to find other help for those symptoms. [UMF No. 14] After this, Ms. Vuksich would occasionally see Dr. Ostroff with abdominal complaints, and he would evaluate her condition and be unable to offer any causative agent other than what had already been discussed with other healthcare providers. [UMF No. 15] In July 2011, Ms. Vuksich was notified of a new online system for patients called “MyChart.” Using this online portal, patients could log into their account and view various test results, request appointments, and communicate with their healthcare providers. [UMF No. 16] In November 2011, Ms. Vuksich had an email exchange with her primary care physician, Dr. Julian, at UCSF through the online portal. Ms. Vuksich told Dr. Julian that since the fundoplication in 2000, she had been experiencing a “pinching” in her abdomen followed by lightheadedness, sometimes even causing her to pass out. She asked if these symptoms could be “connected to” the fundoplication surgery she had undergone in 2000, because that was when her symptoms had become a “glaring problem.” [UMF No. 17] In the email exchange, Ms. Vuksich also said she had seen a CT scan report that mentioned an “unidentified foreign object” in her abdomen. She “saw this could be a connected thing,” and wondered if there were a foreign object in her abdomen, whether it could also be connected to her symptoms. [UMF No. 18] Although Ms. Vuksich’s primary care physician offered additional follow-up, Ms. Vuksich decided not to follow through with any further investigation at that time. [UMF No. 19] // 9 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On November 1, 2017, during an office visit in the urology department for her annual kidney stone checkup, Ms. Vuksich discussed a recent imaging report of a “foreign object” in her abdomen. That same day, the urologist, Dr. Stoller, confirmed that imaging showed a foreign object in her abdomen. He recommended that it be removed and Ms. Vuksich was referred that same day to Dr. Carter in general surgery. [UMF No. 20] Ms. Vuksich saw surgeon Jonathan Carter, M.D. in his office on November 3, 2017. Dr. Carter recommended removal of the foreign body and a hiatal hernia repair. [UMF No. 21] Dr. Carter removed the “foreign object,” and also performed a necessary repair of the fundoplication, on January 18, 2018. [UMF No. 22] Ms. Vuksich’s counsel provided a CCP Section 364 Notice to UCSF Medical Center on or about September 19, 2018. [UMF No. 23] Plaintiff’s Complaint was filed on December 13, 2008. Defendant asserted an affirmative defense based upon the statute of limitations. [UMF No. 24] III. DISCUSSION A. BURDEN OF PROOF/STANDARD FOR DECISION ON SUMMARY JUDGMENT. A defendant filing a motion for summary judgment has the “burden of persuasion” that one or more elements of the cause of action “cannot be established,” or that “there is a complete defense.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 853. When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [. . .], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff “does not possess and cannot reasonably obtain, needed evidence.” Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, quoting Aguilar, supra, 25 Cal.4th at 854. The trial court must consider all of the evidence and all of the reasonable inferences therefrom, but may not weigh the evidence “as though it were sitting as the trier of fact.” Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540-541, quoting Aguilar, supra, 25 Cal.4th at 856. Even though the court may not weigh the evidence, “it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact. [. . .] In so doing, it does not decide on 10 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any finding of its own, but simply decides what finding such a trier of fact could make for itself.” Aguilar, supra, 25 Cal.4th at 856 (emphasis in original). When a defendant seeks to establish that it is entitled to summary judgment based upon the affirmative defense of the statute of limitations, it has the burden to show that the undisputed facts support the affirmative defense. Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856; Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 322. B. EXPLANATION OF THE STATUTE OF LIMITATIONS IN THIS CASE. The statute of limitations for a medical negligence claim is Code of Civil Procedure section 340.5, which 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. Cal. Code Civ. Proc. § 340.5 (emphasis added). The operation here occurred in the year 2000. Plaintiff’s claim would be barred under both the three-year and one-year elements of the statute, but for the allegations of intentional concealment and the presence of the foreign body, both of which toll the commencement of the statute of limitations under Section 340.5. However, once a plaintiff “discovers” her claim, the statute of limitations no longer tolls because her claim is no longer hidden. Since the plaintiff “discovered” her claim, i.e., “suspected” that “someone did something wrong” and thereby caused her injuries, in 2011, the statute of limitations began to run in 2011, and her claim is now time-barred. C. COMMENCEMENT OF THE ONE-YEAR STATUTE OCCURS WITH “DISCOVERY.” The statute of limitations for all causes of action commences to run upon “accrual.” Cal. Code Civ. Proc. §312. // // 11 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Actual suspicion. As the California Supreme Court has explained, a cause of action accrues upon a plaintiff’s “discovery” that he or she has been injured through wrongdoing. The “discovery” rule was stated succinctly in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103. “Under the discovery rule, the statute of limitations begins to run when the Plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” Id., at 1110. As the Supreme Court explained, “In this context, ‘wrong,’ ‘wrongdoing,’ and ‘wrongful’ are used in their lay understanding,” not in some technical sense. Id., at 1110, n.7. The Jolly “discovery” rule applies in medical malpractice actions subject to Cal. Code of Civil Procedure Section 340.5. Dolan v. Borelli (1993) 13 Cal.App.4th 816, 823-824. The Jolly rule was reaffirmed in Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, when the California Supreme Court once again stated that the statute of limitations begins to run “when, simply put, [a plaintiff] at least ‘suspects . . . that someone has done something wrong’ to him . . ., ‘wrong’ being used, not in any technical sense, but rather in accordance with its ‘lay understanding’”. Id., at 397-398. More recently in Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, the California Supreme Court once again reaffirmed this test, and emphasized that the test for “discovery” should be analyzed in a common sense manner: A plaintiff has “reason to discover” a cause of action when he or she has “reason at least to suspect a factual basis for its elements.” In so using the term “elements,” we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them. Fox, supra, 35 Cal.4th at 807. To “suspect” wrongdoing, a plaintiff need not have a full understanding of exactly what went wrong, or have marshalled the facts necessary to prevail at trial. All that is necessary is a suspicion that “someone” has done “something” wrong, and he has been injured thereby. A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit 12 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her. Jolly, supra, 44 Cal.3d at 1110-1111 (internal citations and quotations omitted; emphasis added). Accord, Bernson v. Browning-Ferris Industries of California (1994) 7 Cal.4th 926, 932 (a plaintiff “generally need not know the exact manner in which their injures were ‘effected’” for the statute of limitations to commence running). “It is a plaintiff’s suspicion of negligence, rather than an expert’s opinion that negligence occurred, that triggers the limitation period.” Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1300 (emphasis in original). The plaintiff need not know “the precise manner in which a wrongdoer was negligent” or even the “actual negligent cause” of the injury in order for the statute of limitations to begin running. Id., at 1295, 1298. California courts “have rejected the argument that the limitations period does not begin to run until a plaintiff learns the specific causal mechanism by which he or she has been injured.” Id., at 1298. Moreover, “[o]nce a plaintiff actually has the requisite suspicion, the statute of limitations commences to run. It is not tolled by efforts to learn more about the matter short of filing suit.” Knowles, supra, 118 Cal.App.4th at 1300, quoting Kleefeld v. Superior Court (1994) 25 Cal.App.4th 1680, 1684 (emphasis added). 2. Constructive suspicion. The statute of limitations also begins to run when the plaintiff “has notice or information of circumstances to put a reasonable person on inquiry,” even if the plaintiff does not actually suspect medical malpractice. Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896-897 (emphasis added). “[C]onstructive knowledge will commence the running of the statute of limitations, even though it may not have occurred to plaintiff to bring suit until she had discussed the situation with her attorney.” Graham v. Hansen (1982) 128 Cal.App.3d 965, 973. When a person has “information with respect to [the] injury and its negligent cause sufficient to place a reasonable person on inquiry as to the probability of actionable conduct on the part of defendants,” the statute of limitations commences to run even in the absence of actual suspicion. Id., at 973 (emphasis added). Constructive knowledge occurs when a “prudent person would believe . . . there was cause for an investigation for the purpose of determining whether there was fault on the part of the surgeons. . . .” Mock v. 13 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Santa Monica Hosp. (1960) 187 Cal.App.2d 57, 66. Facts and events which inform a person that something is wrong, or should be looked into, are usually recognizable by the ordinary person. . . . It is the occurrence of some such cognizable event rather than knowledge of its legal significance that starts the running of the statute of limitations. Graham, supra, 128 Cal.App.3d at 974 (emphasis added). The plaintiff need not “know of the facts which constitute the wrongful conduct.” All that is necessary is that the plaintiff is aware of facts that would make a reasonable person “suspect” that “someone did something wrong.” Rose v. Fife (1989) 207 Cal.App.3d 760, 771. “The reasonableness of a delayed discovery is usually a question of fact but may be a question of law when the . . . facts are susceptible to only one legitimate inference.” Christ v. Lipsitz (1979) 99 Cal.App.3d 894, 898. Accord, Jolly, supra, 44 Cal.3d at 1112 (when the uncontradicted facts are “susceptible to only one legitimate inference,” summary judgment on the issue of statute of limitations is proper.) D. “DISCOVERY” OCCURRED IN THIS CASE IN 2011. In this case, the plaintiff had experienced a puzzling set of concerning new symptoms after the operation in 2000. She even wondered whether a foreign object had been left behind in her abdomen as early as early as 2003, but the diagnosis of abdominal migraines provided a reasonable explanation for her symptoms in her mind. However, in 2011, she read a CT scan report mentioning the presence of a “foreign object” in her abdomen, and she had only undergone one abdominal operation. She was still experiencing rather severe symptoms that had become a “glaring problem” after the operation in 2000, and was questioning whether something that occurred in the operation could be causing her symptoms. At this time, she was clearly on notice that there could be a “foreign object” in her abdomen. And she clearly suspected that her ongoing symptoms were linked to the 2000 operation. Despite her physician offering further workup, she elected not to pursue the matter further. [I]n order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations 14 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 begins to run on that cause of action when the investigation would have brought such information to light. Fox, supra, 35 Cal.4th at 808-809. “A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” Dolan, supra, 13 Cal.App.4th at 822. “So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” Jolly, supra, 44 Cal.3d at 1111 (emphasis added). Here, plaintiff did not conduct any sort of investigation despite her suspicions. Her cause of action is therefore barred. E. ONCE “DISCOVERY” OCCURS, FAILURE TO DISCLOSE IS NOT RELEVANT. Once the plaintiff either suspects that someone did something wrong, or has reason to suspect, the statute of limitations commences to run. The statute of limitations does not thereafter toll due to alleged nondisclosure or concealment by the defendant. Sanchez v. South Hoover Hosp. (1976) 18 Cal.3d 93, 97-101. Accord, Graham, supra, 128 Cal.App.3d at 974-975; Barber v. Superior Court (1991) 234 Cal.App.3d 1076, 1083-1084. Even when the case involves “foreign body” tolling, once “discovery” of the foreign body occurs, tolling stops. Ashworth v. Memorial Hosp. (1988) 206 Cal.App.3d 1046, 1051 (“we hold the statutory “foreign body exception” delays the start of the medical malpractice statute of limitations (Code Civ.Proc., § 340.5) until the patient discovers or through reasonable diligence would have discovered the “foreign body” itself and its role as the negligent cause of her suffering.”) Here, once the plaintiff saw the reference to the “foreign body” in a CT scan report, she was on notice of its existence. She clearly stated her suspicion that something that occurred in her 2000 fundoplication was the cause of her symptoms, and she knew that the 2000 operation was the only abdominal surgery she had undergone. No one contradicted her suspicion, dissuaded her from investigating or in any way discouraged her from moving forward. Her physician suggested two possible modes of investigating, and the plaintiff elected not to move forward. Under these circumstances, the statute of limitations commenced to run, despite the “foreign body” tolling exception. // // 15 CGC-18-572081: NOTICE OF MOTION AND MOTION OF DEFENDANT REGENTS FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 190-10879/SMD/490725.doc D O N N EL LY N EL SO N D EP O LO M U R R A Y & E FR EM SK Y A P ro fe ss io na l C or po ra tio n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. THE SECTION 364 90-DAY NOTICE HAD NO EFFECT UPON THE STATUTE OF LIMITATIONS. When a Section 364 notice is served within the last 90 days of the running of the statute of limitations, it extends the applicable statute of limitations by a period of 90 days. When it is served at any other time, it has no effect upon the running of the statute. Cal. Code Civ. Proc. § 364(d); Woods v. Young (1991) 53 Cal.3d 315, 319 (“We hold that the 1-year statute of limitations is tolled for 90 days when the plaintiff gives the notice of intent to sue in the last 90 days of the limitations period, but that the running of the statutory period is not otherwise affected by service of the notice.”); Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 390 (same). Since the 90-day notice here was not served within the last 90 days of the running of the statute of limitations, it did not extend the statute of limitations. IV. CONCLUSION Based upon the foregoing, Defendant asserts that the Plaintiff’s claim for negligence is time- barred as a matter of law, because the one-year statute of limitations commenced to run in 2011, and any alleged tolling of the statute of limitations due to intentional concealment and/or the presence of a foreign body ended at that time. Defendant Regents of the University of California therefore requests that its motion for summary judgment be GRANTED. Dated: April 1, 2020 DONNELLY NELSON DEPOLO MURRAY & EFREMSKY By: /s/ Sonja M. Dahl, Esq. SONJA M. DAHL Attorneys for Defendant THE REGENTS OF THE UNIVERSITY OF CALIFORNIA