Hirzallah v. The Regents of the University of Cal. CA4/3 ( 2021 )


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  • Filed 5/24/21 Hirzallah v. The Regents of the University of Cal. CA4/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION THREE
    KHALED HIRZALLAH,
    Plaintiff and Appellant,                                           G058914
    v.                                                            (Super. Ct. No. 30-2019-01047434)
    THE REGENTS OF THE UNIVERSITY                                           OPINION
    OF CALIFORNIA et al.,
    Defendants and Respondents.
    Appeal from a judgment of the Superior Court of Orange County, Theodore
    R. Howard, Judge. Affirmed.
    Law Office of Carson Newton, Carson Newton; Law Office of Gene J.
    Goldsman and Gene J. Goldsman for Plaintiff and Appellant.
    Cole Pedroza, Kenneth R. Pedroza, Michael A. Carlin; Carroll, Kelly,
    Trotter, Franzen, McBride & Peabody and Steven J. Wysocky for Defendants and
    Respondents.
    Plaintiff Khaled Hirzallah appeals from a judgment entered against him
    after the trial court sustained the defendants’ demurrer to the operative complaint with
    leave to amend and plaintiff failed to file an amended complaint within the time allowed.
    Plaintiff argues the trial court erred by applying a one-year statute of limitations under
    Code of Civil Procedure section 340.5 (section 340.5) to his causes of action instead of a
    longer statute of limitations because plaintiff’s claims do not arise from defendants’
    provision of professional services as health care providers. We disagree and affirm.
    FACTS
    On August 15, 2017, plaintiff was a patient at the University of California
    Irvine’s Medical Center. Plaintiff was sent to an exam room, in which he lay down on
    the exam room table. Dr. Tan Nguyen opened the door of the room, striking plaintiff and
    injuring him.
    On January 29, 2019, plaintiff sued the Regents of the University of
    California and Nguyen (defendants), alleging causes of action for negligence and
    premises liability. Defendants demurred, arguing plaintiff’s causes of action were barred
    by section 340.5, which imposes a one-year statute of limitations on causes of action for
    professional negligence against health care professionals. The court sustained the
    demurrer with leave to amend.
    Plaintiff filed a first amended complaint, which added various new
    defendants (not parties to this appeal), as well as causes of action for negligent
    construction and breach of implied and express warranties of fitness. Defendants
    demurred again, raising the same statute of limitations argument, as well as certain other
    arguments specific to the new causes of action, which do not relate to this appeal. The
    trial court sustained the demurrer as to all causes of action, again finding section 340.5
    barred the negligence and premises liability causes of action, but granted plaintiff a
    second chance to amend.
    2
    Plaintiff failed to file a second amended complaint within the period
    granted by the court and the court dismissed the action as to defendants.
    DISCUSSION
    On appeal, plaintiff raises only one issue: whether the trial court properly
    applied section 340.5 to his causes of action for negligence and premises liability. When
    a plaintiff appeals from a judgment of dismissal entered after a demurrer is sustained, we
    “review the complaint de novo to determine whether the complaint alleges facts sufficient
    to state a cause of action under any legal theory or to determine whether the trial court
    erroneously sustained the demurrer as a matter of law.” (Aguilera v. Heiman (2009) 
    174 Cal.App.4th 590
    , 595.)
    Section 340.5 applies to the “professional negligence” of a “health care
    provider.” “Professional negligence” is defined as “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,
    subd. (2).) In many cases, as in this one, the principal point of dispute is whether the
    negligent act or omission occurred “in the rendering of professional services.”
    Plaintiff argues this case is on all fours with Johnson v. Open Door
    Community Health Centers (2017) 
    15 Cal.App.5th 153
     (Johnson). In Johnson, the
    plaintiff tripped over a scale while leaving a community health clinic, suffering serious
    injuries. (Johnson, at p. 156.) The plaintiff sued almost two years later. (Ibid.) The
    defendant sought summary judgment, arguing section 340.5 applied and the plaintiff’s
    claim was time-barred. (Ibid.) The trial court agreed, entering summary judgment in
    favor of the defendant because the plaintiff suffered her injuries while in the course of
    obtaining medical treatment, and the injuries were caused by equipment used to diagnose
    and treat medical conditions. (Id. at p. 157.)
    3
    The Court of Appeal reversed based upon the distinction between injuries
    caused by “the rendering of professional services,” as required by section 340.5, and
    those caused by ordinary negligence, such that the ordinary two-year statute of
    limitations for personal injury would apply. (Johnson, supra, 15 Cal.App.5th at p. 158.)
    The distinction turns on the nature of the duty alleged to be violated by the provider: is
    the duty a “professional obligation[] . . . in the rendering of medical care to . . . patients;”
    or is it an obligation owed “simply by virtue of operating facilities open to the public, to
    maintain their premises in a manner that preserves the well-being and safety of all users”?
    (Id. at p. 159.) If the duty is a professional obligation owed to patients, then section
    340.5 applies. If not, section 340.5 does not apply.
    The Court of Appeal in Johnson concluded the duty to avoid obstructing an
    exit path from the building with a trip hazard was the latter sort of duty, owed not just to
    patients but to all users of the facility. (Johnson, supra, 15 Cal.App.5th at p. 160.)
    Accordingly, the court concluded section 340.5 did not apply.
    In dicta, the Johnson court also described two hypothetical situations with
    subtle distinctions from the facts in Johnson. The Johnson court wrote “[h]ad [the
    plaintiff] alleged that [the clinic’s] failure to properly calibrate the scale resulted in
    inaccurate information and inappropriate medical care, any resulting claim would almost
    certainly be subject to [section 340.5].” (Johnson, supra, 15 Cal.App.5th at p. 160.) And
    “[h]ad [the plaintiff] alleged the improper placement of the scale caused her to fall off the
    scale and injure herself, [section 340.5] might apply.” (Ibid.)
    The facts of the present case are distinguishable from Johnson in precisely
    the way the Johnson court contemplated. Plaintiff here alleges the improper placement of
    the exam table caused his injuries while he was lying on the exam table, analogously to
    the Johnson court’s hypothetical in which the plaintiff fell off the scale. Johnson
    therefore provides us little guidance, as the Johnson court wrote only that, under these
    circumstances, section 340.5 “might” apply. (Johnson, supra, 15 Cal.App.5th at p. 160.)
    4
    Instead, we turn to our Supreme Court’s decision in Flores v. Presbyterian
    Intercommunity Hospital (2016) 
    63 Cal.4th 75
     (Flores), which laid out the governing
    principles and analytical framework utilized by the Court of Appeal in Johnson. In
    Flores, the plaintiff was attempting to rise from her hospital bed when a bedrail collapsed
    and she fell to the floor. (Flores, at p. 79.) She sued the hospital just under two years
    later. (Ibid.) The defendant demurred, citing section 340.5. (Flores, at p. 80.) The trial
    court sustained the demurrer, but the Court of Appeal reversed, and the Supreme Court
    granted review to determine “whether negligence in the use or maintenance of hospital
    equipment or premises qualifies as professional negligence,” subject to section 340.5.
    (Flores, at p. 84.)
    Before the Supreme Court, the plaintiff argued section 340.5’s reference to
    “professional services” meant “‘services involving a job requiring a particularized degree
    of medical skill.’” (Flores, supra, 63 Cal.4th at p. 84.) The defendant, meanwhile,
    argued any negligent act or omission in maintaining its equipment or premises was within
    the scope of “professional services,” because all such acts are governed by “the statutory
    and regulatory licensing requirements for hospitals.” (Id. at p. 85.)
    The Supreme Court settled on a rule between these two positions. (Flores,
    supra, 63 Cal.4th at p. 85.) The Supreme Court rejected the plaintiff’s argument that
    rendering “professional services” necessarily requires the application of professional
    skill. (Ibid.) The court listed three examples of situations not involving professional
    skills, in which the negligent act nonetheless occurred while the defendant was rendering
    professional services. (Id. at pp. 85-86.) The last of these involved a patient falling from
    a rolling X-ray table after it was negligently left unsecured. (Ibid.) This was not a mere
    hypothetical—the Supreme Court cited (with apparent approval) Bellamy v. Appellate
    Department (1996) 
    50 Cal.App.4th 797
     (Bellamy), in which the Court of Appeal actually
    analyzed those facts and concluded they constituted negligence in the rendering of
    professional services. (Ibid.)
    5
    Bellamy, in turn, relied on the fact that “[p]eople do not commonly mount
    X-ray tables in hospitals except for a radiological examination or therapy” to conclude
    the alleged negligence arose “‘in the rendering of professional services.’” (Bellamy,
    supra, 50 Cal.App.4th at pp. 805-806.) The court explained “the hospital was rendering
    professional services to [the plaintiff] in taking X-rays and she would not have been
    injured by falling off the X-ray table but for receiving those services.” (Id. at p. 806.)
    We cannot find, and plaintiff does not propose, a meaningful distinction
    between the facts of Bellamy (which Flores said involved professional services) and the
    facts of the present case. Plaintiff mounted the exam table for the purpose of being
    examined by Nguyen and would not have been injured but for receiving those services.
    Plaintiff was injured because the table was negligently placed, but defendants’ duty to
    place the table properly is owed only to those likely to mount the table and be injured—
    namely, patients.
    Plaintiff’s contention that opening a door or placing a table safely with
    respect to the door takes no professional skill is irrelevant. As the Supreme Court noted
    in Flores, “[a] medical professional . . . may commit a negligent act in rendering medical
    care, thereby causing a patient’s injury, even where no particular medical skills were
    required to complete the task at hand.” (Flores, supra, 63 Cal.4th at p. 85.) That is what
    happened here, according to the facts alleged in plaintiff’s first amended complaint.
    Plaintiff’s contention that anyone (including persons other than a doctor)
    could have opened the door that injured plaintiff is also irrelevant. The Supreme Court in
    Flores noted that negligently disconnecting a patient’s ventilator occurred in the
    rendering of professional services “‘regardless of whether separation was caused by the
    ill-considered decision of a physician or the accidental bump of a janitor’s broom.’”
    (Flores, supra, 63 Cal.4th at p. 85.) And it makes no difference that plaintiff has alleged
    premises liability in addition to his cause of action for negligence; the plaintiff in Flores
    did the same, and this was no bar to application of section 340.5. (Flores, at pp. 79-80.)
    6
    Consequently, we conclude section 340.5 applies and defendants’ demurrer
    was properly sustained.
    DISPOSITION
    The judgment is affirmed. Defendants shall recover costs on appeal.
    THOMPSON, J.
    WE CONCUR:
    O’LEARY, P. J.
    MOORE, J.
    7
    

Document Info

Docket Number: G058914

Filed Date: 5/24/2021

Precedential Status: Non-Precedential

Modified Date: 5/24/2021