Sanders v. Madden CA2/7

Filed 1/11/23 Sanders v. Madden CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JASMIN SANDERS, B316082
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV43958)
HEATHER MADDEN et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Bernie LaForteza, Judge. Reversed and remanded with
directions.
Law Offices of Chris Connolly and Chris Connolly for
Plaintiff and Appellant.
Wallace, Brown & Schwartz, George M. Wallace and Lisa J.
Brown for Defendants and Appellants Joyce Lee and Heather
Madden.
Lewis Brisbois Bisgaard & Smith, Raul L. Martinez and
Timothy R. Windham for Defendant and Respondent Access
Specialty Animal Hospital.
_________________
Dennis, Monireh Anvary’s cat and comfort animal, died
after being treated by Joyce Lee, D.V.M. and Heather Madden,
D.V.M. at Access Specialty Animal Hospital. Alleging the
veterinarians had failed to follow her instruction not to use flea
control medication, administered other unauthorized medicine
and intentionally misrepresented Dennis’s deteriorating
condition to induce Anvary to leave the cat at Access Hospital for
further treatment, Anvary sued Dr. Lee, Dr. Madden and Access
Hospital for trespass to chattel, conversion and deceit in an
amended complaint that omitted the cause of action for
negligence alleged in Anvary’s original pleading.
The trial court dismissed Anvary’s case after sustaining
demurrers without leave to amend, ruling Code of Civil
Procedure section 340, subdivision (c)’s one-year statute of
limitations for claims of veterinary malpractice barred each of
Anvary’s causes of action.1 We reverse and remand with
directions for the trial court to enter a new order sustaining
1 Code of Civil Procedure section 340, subdivision (c),
provides, in part, an action must be commenced within one year
“against any person who boards or feeds an animal or fowl or who
engages in the practice of veterinary medicine as defined in
Section 4826 of the Business and Professions Code for that
person’s neglect resulting in injury or death to an animal or fowl
in the course of boarding or feeding the animal or fowl or in the
course of the practice of veterinary medicine on that animal or
fowl.”
2
without leave to amend the demurrers to the causes of action for
trespass to chattel and conversion but overruling the demurrers
to Anvary’s cause of action for deceit (fraud).
FACTUAL AND PROCEDURAL BACKGROUND
1. Anvary’s Complaint and First Amended Complaint
Dennis died in the early morning of December 7, 2017 after
being treated for approximately 18 hours by Dr. Lee and
Dr. Madden at Access Hospital. On December 6, 2019 Anvary
sued the two veterinarians and Access Hospital, alleging in an
unverified complaint causes of action for general negligence,
trespass to chattel, conversion and deceit.
Drs. Lee and Madden and Access Hospital demurred and
moved to strike portions of the original complaint, arguing in
part all four causes of action were barred by the one-year
limitations period governing suits against veterinarians for the
injury or death of an animal under their care. Rather than
defend her original complaint, on June 12, 2020 Anvary filed a
first amended complaint, omitting the cause of action for
negligence and reasserting her causes of action for trespass to
chattel, conversion and deceit.
In support of her claims Anvary alleged she brought Dennis
to Access Hospital at 8:00 a.m. on December 6, 2017 because the
cat had been unable to urinate for a day and had a cold. Dr. Lee,
the attending veterinarian, told Anvary the cat had a urinary
obstruction and would need to be hospitalized for three days to
have the obstruction removed.
As alleged in the first amended complaint, Anvary asked
Dr. Lee not to administer any unnecessary drugs to Dennis,
especially flea control medication, because the cat had suffered a
seizure in the past after being given flea medicine. Dr. Lee
3
responded the flea medication used at Access Hospital was safe
and would not harm Dennis. Anvary then pointed out there were
warning labels on flea medication stating it should not be given
to sick cats and repeated she did not want any flea medication
given to Dennis. Anvary left Dennis at Access Hospital, paying a
$2,300 deposit for Dennis’s care before departing.
At 11:00 a.m. Anvary called the hospital and was told by
Dr. Lee that the urinary obstruction had been caused by a
mucous plug on the tip of the cat’s penis that had been wiped off,
permitting Dennis to urinate. However, Dr. Lee advised Anvary
that Dennis needed to remain hospitalized for three days to have
his kidney numbers lowered. (Those numbers, Dr. Lee explained,
had increased due to the urinary tract obstruction.) During the
remainder of the day Anvary called Access Hospital multiple
times and came to the hospital during visiting hours. She was
told, at the direction of Dr. Lee and Dr. Madden, that they were
making “great progress” with Dennis’s kidney numbers and the
cat was “doing great.”
Approximately 18 hours after bringing Dennis to Access
Hospital (that is, at approximately 4:00 a.m. on December 7,
2017), Dr. Madden’s assistant told Anvary her cat’s body
temperature had dropped suddenly. Anvary, now believing the
hospital staff had been lying to her all along concerning Dennis’s
condition, immediately went to the hospital to pick up the cat and
take him to a different clinic. When the assistant brought the cat
out, he appeared comatose; but the assistant assured Anvary,
despite how Dennis looked, the cat’s body temperature had
returned to normal and he was again doing great. Shortly after
Anvary left the hospital with Dennis, the cat began having
seizures. He died an hour later.
4
Anvary alleged she learned from the hospital’s medical and
itemized billing records that Dennis had been given two doses of
flea medication, subsequently suffered a seizure as a result, and
was then given an overdose of antiseizure medication by
Dr. Madden. In addition, the records indicated Dennis started to
vomit after being medicated at the hospital and was treated with
anti-nausea medication rather than being evaluated for a drug
overdose or drug allergy.
Anvary alleged Drs. Lee and Madden and Access Hospital
held themselves out as experts in the examination and treatment
of cats and, as such, owed her a duty to administer to Dennis the
proper dosages of medication and not to use flea medication or
any other medication that was not necessary to treat his infection
and kidney issues. They also owed her a duty to truthfully advise
her of the medications being administered and inform her of
Dennis’s reaction to the medication. According to Anvary, Dennis
died as a result of Drs. Lee and Madden and Access Hospital’s
improper and unnecessary treatment and care. The
administration of unauthorized medications, as well as the
misrepresentations concealing Dennis’s true condition, Anvary
averred, was intentional. Further, she alleged, the
misrepresentations about Dennis’s condition and failure to
accurately disclose the true situation were intended to, and did,
induce Anvary to keep Dennis at the hospital, thereby incurring
additional costs.
2. The Renewed Demurrers
Access Hospital and Drs. Lee and Madden again demurred
and moved to strike portions of the amended complaint. Access
Hospital argued all three causes of action arose out of a claim for
veterinary malpractice and were barred by the governing one-
5
year statute of limitations. The hospital also argued the facts
alleged in the first amended complaint failed to state causes of
action for trespass to personal property, conversion or fraud. The
motion to strike was directed to Anvary’s allegations in support of
her prayer for punitive damages and for emotional distress and
other noneconomic damages, which Access Hospital asserted
were not recoverable in a veterinary malpractice action.
Drs. Lee and Madden similarly argued Anvary’s claims
were subject to the one-year statute of limitations in section 340,
subdivision (c),2 and that the first amended complaint failed to
allege facts sufficient for a cause of action for trespass to chattel
or conversion. The veterinarians also asserted Anvary had not
alleged the elements of deceit (fraud) with the requisite
particularity. Their motion to strike was directed to the
allegations of punitive damages.
Anvary filed oppositions to the demurrers and motions to
strike, and the defendants filed reply memoranda. After multiple
continuances and procedural mishaps, the court ultimately heard
Access Hospital’s demurrer on May 27, 2021 and Drs. Lee and
Madden’s on August 30, 2021.
3. The Trial Court Orders Sustaining the Demurrers
Without Leave To Amend
The court sustained Access Hospital’s demurrer without
leave to amend, ruling the lawsuit was time-barred under
section 340, subdivision (c). Explaining it was undisputed
Anvary’s claims arose out of veterinary treatment, the court
agreed with Access Hospital that all three causes of action “sound
in professional malpractice because the cat received the wrong
2 Statutory references are to the Code of Civil Procedure
unless otherwise stated.
6
medication and/or too much medication.” While acknowledging
Anvary could pursue her claims under alternate theories, the
court ruled the underlying allegations were insufficient to state
intentional torts with longer statutes of limitation “outside of the
context of the veterinary treatment that was given.” The court
rejected Anvary’s argument her complaint was timely under the
doctrine of delayed discovery or tolling based on her receipt of the
medical billing records after Dennis’s death, noting Anvary had
not alleged when she received the records or why she could not
have obtained them earlier than she did. In addition, the court
found Anvary was on inquiry notice of the alleged malpractice
when the animal’s injuries were first observed.
Because it sustained the demurrer based on the statute of
limitations, the court did not consider Access Hospital’s challenge
to the individual causes of action. Concluding Anvary could not
amend the complaint to state claims that did not sound in
veterinary malpractice, the court denied leave to amend. The
motion to strike was denied as moot.
Several months later, in a ruling that mirrored the order
sustaining Access Hospital’s demurrer without leave to amend,
the court sustained the demurrer of Drs. Lee and Madden and
denied their motion to strike as moot.
A judgment of dismissal was entered in favor of Access
Hospital on August 20, 2021 and in favor of Dr. Lee and
Dr. Madden on August 30, 2021. Anvary filed timely notices of
appeal.3
3 Anvary passed away at some point while her appeal was
pending. On December 5, 2022, after briefing was completed and
oral argument scheduled for this court’s January 2023 calendar,
Jasmin Sanders moved to substitute for Anvary as the personal
7
DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We independently review the trial
court’s ruling on a demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action or
discloses a complete defense. (Mathews v. Becerra (2019)
8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017)
4 Cal.5th 145, 162.) We assume the truth of the properly pleaded
factual allegations, facts that reasonably can be inferred from
those expressly pleaded and matters of which judicial notice has
been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20;
accord, Centinela Freeman Emergency Medical Associates v.
Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010;
Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
A demurrer based on an affirmative defense is properly
sustained when the face of the complaint and matters judicially
noticed clearly disclose the defense or bar to recovery.
(See Favila v. Katten Muchin Rosenman LLP (2010)
188 Cal.App.4th 189, 224; see also Stella v. Asset Management
Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; Marina Tenants
Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d
122, 130-132.) If “‘the complaint’s allegations or judicially
noticeable facts reveal the existence of an affirmative defense, the
“plaintiff must ‘plead around’ the defense, by alleging specific
facts that would avoid the apparent defense. Absent such
allegations, the complaint is subject to demurrer for failure to
representative of Anvary’s estate. We granted the motion. For
simplicity, however, we refer to Anvary throughout our opinion.
8
state a cause of action.”’” (Esparza v. County of Los Angeles
(2014) 224 Cal.App.4th 452, 459.)
We affirm the judgment if it is correct on any ground stated
in the demurrer, regardless of the trial court’s stated reasons
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967;
Las Lomas Land Co., LLC v. City of Los Angeles (2009)
177 Cal.App.4th 837, 848), but liberally construe the pleading
with a view to substantial justice between the parties. (§ 452;
Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726;
see Schifando v. City of Los Angeles, supra, 31 Cal.4th at
p. 1081.)
“‘Where the complaint is defective, “[i]n the furtherance of
justice great liberality should be exercised in permitting a
plaintiff to amend his [or her] complaint.”’” (Aubry v. Tri-City
Hospital Dist., supra, 2 Cal.4th at p. 970.) A plaintiff may
demonstrate for the first time to the reviewing court how a
complaint can be amended to cure the defect. (§ 472c, subd. (a)
[“[w]hen any court makes an order sustaining a demurrer
without leave to amend the question as to whether or not such
court abused its discretion in making such an order is open on
appeal even though no request to amend such pleading was
made”]; see Sierra Palms Homeowners Assn. v. Metro Gold Line
Foothill Extension Construction Authority (2018) 19 Cal.App.5th
1127, 1132 [plaintiff may carry burden of proving an amendment
would cure a legal defect for the first time on appeal]; Rubenstein
v. The Gap, Inc. (2017) 14 Cal.App.5th 870, 881 [“‘[w]hile such a
showing can be made for the first time to the reviewing court
[citation], it must be made’”].)
9
2. Dr. Lee’s and Dr. Madden’s Alleged Mistreatment of
Dennis Occurred in the Course of the Practice of
Veterinary Medicine
Although conceding a one-year statute of limitations
governs an action against a veterinarian for neglect causing the
injury or death of an animal “in the course of the practice of
veterinary medicine on that animal” (§ 340, subd. (c)), Anvary
contends giving Dennis flea control medication (contrary to her
instructions not to do so) was an ancillary grooming act, not the
practice of veterinary medicine, and thus outside the scope of
section 340, subdivision (c). This argument reads both the
governing statute and her own pleading far too narrowly.
As discussed, in her first amended complaint Anvary
alleged not only that the defendants treated Dennis with flea
control medication notwithstanding her instructions but also
that, after the cat had a seizure, administered an overdose of
antiseizure medication and improperly treated Dennis with anti-
nausea medication. It was this combination of improper and
unnecessary treatment, Anvary alleged, that caused Dennis’s
death.4 Accepting Anvary’s characterization that treating a cat
with flea medication is a nonprofessional activity, even if
performed at a veterinary hospital, what she alleged as the basis
4 For example, in paragraphs 13 and 14 Anvary alleged that
the antiseizure medication given to Dennis at the hospital, in
addition to being far too large a dose, should not have been given
to a cat with high kidney numbers and “was also not supposed to
follow an anti-nausea medication or a pain medication (both of
which drugs had been administered to the plaintiff’s cat by the
hospital earlier that day) and could trigger a loss of liver function
as a consequence.”
10
for her claims against Drs. Lee and Madden and Access Hospital
was unquestionably the practice of veterinary medicine.
More fundamentally, Anvary’s cramped interpretation of
the scope of section 340, subdivision (c), is based on a
misunderstanding of the case law construing analogous
section 340.5, part of the Medical Injury Compensation Reform
Act (MICRA), which specifies the limitations period for personal
injury actions “against a health care provider based upon such
person’s alleged professional negligence.”5 As Anvary states,
relying upon Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, not
every negligent action by a health care provider will be
considered professional negligence subject to MICRA. In Aldana
the defendant, a paramedic supervisor, was driving a pickup
truck to the location of an injured victim to oversee responding
emergency medical technicians and provide any necessary
assistance. En route the supervisor failed to make a complete
stop at a red light and collided with the plaintiff’s vehicle. (Id. at
pp. 4-6.) Division Six of this court held driving to the third party
5 Code of Civil Procedure section 340.5, subdivision (1),
defines a “health care provider” to include any person licensed or
certified pursuant to Division 2 of the Business and Professions
Code, Healing Arts, as do other provisions of MICRA (e.g., Code
Civ. Proc., § 364; Civ. Code, § 3333.2). Business and Professions
Code sections 4825 requiring a license to practice veterinary
medicine in California, 4826 defining the practice of veterinary
medicine, and 4846 prescribing the requirements to obtain a
license to practice veterinary medicine, are all part of Division 2.
Thus, veterinarians are health care providers within the meaning
of MICRA. (Vazquez de Mercado v. Superior Court (2007)
148 Cal.App.4th 711, 714 [“veterinarians fall within the
provisions of MICRA”].)
11
victim did not constitute “professional services,” a task requiring
“no particular medical skills” and the plaintiff’s personal injury
action was not barred by MICRA’s one-year-from-date-of-
discovery limitations period. (Id. at p. 7.)
Anvary omits from her opening brief’s discussion of the
proper interpretation of professional negligence under MICRA
Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th
75 (Flores), in which the Supreme Court explained, although the
phrase “professional services” ordinarily means services that can
be judged against the skills commonly possessed by other
members of the profession, “this does not mean that section 340.5
applies only to those specific tasks that require advanced medical
skills and training. A medical professional or other hospital staff
member 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.” (Id.
at p. 85.)6
The issue in determining whether a negligent act is one of
professional negligence under section 340.5, the Flores Court
held, is whether it “was reasonably required to treat or
accommodate a physical or mental condition of the patient.”
(Flores, supra, 63 Cal.4th at p. 88; see Mitchell v. Los Robles
Regional Medical Center (2021) 71 Cal.App.5th 291, 298
6 Flores alleged she was injured when the latch on the rail on
her hospital bed malfunctioned. (Flores, supra, 63 Cal.4th at
p. 89.) The Supreme Court held the MICRA statute of limitations
applied because a doctor had made a medical decision that the
rails on Flores’s bed be raised and her injuries resulted from the
negligent maintenance of equipment integrally related to her
medical diagnosis and treatment. (Ibid.)
12
[section 340.5 applied to personal injury action brought by
emergency room patient who fell when allowed to walk to the
restroom unattended; “[w]e recognize that accompanying
someone to the restroom is not a sophisticated medical procedure.
But that is not determinative. Section 340.5 applies to more than
tasks that ‘require advanced medical skills and training’”].) An
act reasonably related to the treatment being provided, the
Supreme Court explained, “implicates a duty that the hospital
owes to a patient by virtue of being a health care provider,” and
MICRA applies. (Flores, at p. 88.)
Anvary misses the point when she argues in her reply brief
that giving Dennis flea control medicine was not necessary or
integrally related to his treatment at Access Hospital, as required
by Flores to constitute professional negligence, because she had
not brought him to the hospital to resolve a flea problem. Anvary
may not have thought it necessary. But Anvary’s pleading
established that Dr. Lee did, as evidenced by her allegation that,
after Anvary asked that Dennis not be given flea medication,
Dr. Lee responded by saying the medication used at Access
Hospital was safe and would not harm the cat—a clear statement
that Dr. Lee intended to administer the medication (either to
treat Dennis or protect other animals at the hospital from a flea
infestation or both). Even if not part of the treatment of the
particular ailments that prompted Anvary to bring Dennis to
Access Hospital, nothing in her first amended complaint indicates
treating the cat for fleas, let alone administering the other
medication given Dennis on December 6 and 7, 2017, was
anything other than a normal part of the practice of veterinary
13
medicine at the hospital, implicating the duty it owed to Anvary
as a health care provider.7
3. Anvary’s Causes of Action for Trespass to Chattel and
Conversion Are Predicated on the Veterinarians’
Negligence and Barred by the One-year Statute of
Limitations
“To determine the statute of limitations which applies to a
cause of action it is necessary to identify the nature of the cause
of action, i.e., the ‘gravamen’ of the cause of action. [Citations.]
‘[T]he nature of the right sued upon and not the form of action
nor the relief demanded determines the applicability of the
statute of limitations.’” (Hensler v. City of Glendale (1994)
8 Cal.4th 1, 22-23; accord, Sznyter v. Malone (2007)
155 Cal.App.4th 1152, 1161; see Burchell v. Faculty Physicians &
Surgeons etc. (2020) 54 Cal.App.5th 515, 523 [When a plaintiff
seeks to evade the restrictions of MICRA by asserting only
seemingly non-MICRA causes of action, “the court must
determine whether a cause of action framed as something other
than medical malpractice is nevertheless based on a health care
provider’s professional negligence . . . . The focus of the court’s
analysis must be on ‘the nature or gravamen of the claim, not the
label or form of action the plaintiff selects’”]; Unruh-Haxton v.
Regents of University of California (2008) 162 Cal.App.4th 343,
353 [same].)
7 In addition, because it was anticipated that Dennis would
be kept at Access Hospital for three days, administering flea
control medication, even if not necessary for his medical
treatment, is properly viewed as occurring during the course of
boarding the animal within the meaning of section 340,
subdivision (c).
14
Anvary’s allegations that Drs. Lee and Madden and Access
Hospital wrongfully exercised dominion over Dennis, her
personal property—constituting the tort of conversion8—and
injured her through their intentional interference with her
possession of Dennis—the tort of trespass to chattel9—are
predicated, as was her original cause of action for negligence, on
8 “Conversion is an ‘ancient theory of recovery’ with roots in
the common law action of trover. [Citations.] ‘This action
originated at an early date as a remedy against the finder of lost
goods who refused to return them to the owner but instead
‘converted’ them to his own use.’ [Citation.] Over time, the
action was extended to cases involving ‘dispossession, or . . .
withholding possession by others than finders.’ [Citation.]
Today, the tort of conversion is understood more generally as ‘the
wrongful exercise of dominion over personal property of another.’
[Citations.] [¶] As it has developed in California, the tort
comprises three elements: ‘(a) plaintiff’s ownership or right to
possession of personal property, (b) defendant’s disposition of
property in a manner inconsistent with plaintiff's property rights,
and (c) resulting damages.’ [Citations.] Notably absent from this
formula is any element of wrongful intent or motive; in
California, conversion is a ‘strict liability tort.’” (Voris v. Lampert
(2019) 7 Cal.5th 1141, 1150; see Fong v. East West Bank (2018)
19 Cal.App.5th 224, 231 [conversion is the wrongful exercise of
dominion over the property of another].)
9 “Under California law, trespass to chattels ‘lies where an
intentional interference with the possession of personal property
has proximately caused injury.’” (Intel Corp. v. Hamidi (2003)
30 Cal.4th 1342, 1350-1351, italics omitted.) The elements of a
cause of action for trespass to chattel are the plaintiff’s
possession of the property, the defendant’s intentional
interference with the plaintiff’s use of the property without the
plaintiff's consent and damages. (Thrifty-Tel, Inc. v. Bezenek
(1996) 46 Cal.App.4th 1559, 1566-1567.)
15
the defendants’ breach of their duty of care as health care
professionals when diagnosing and treating Dennis. That is, it
was the veterinarians’ “neglect” in the course of their practice of
veterinary medicine, albeit in the form of affirmative acts that
proved to be injurious rather than omissions, that allegedly
constituted wrongful interference with Anvary’s use of her
personal property.10 As such, section 340, subdivision (c)’s one-
year limitations period, not the three-year period in section 338,
subdivision (c)(1), for actions for taking, detaining or injuring
goods or chattel, applies to Anvary’s claims for conversion and
trespass to chattel.
Anvary contends section 340, subdivision (c), is inapplicable
to the causes of action alleged in her first amended complaint
because they are predicated on Dr. Lee’s and Dr. Madden’s
intentional acts, not their “neglect.” Anvary’s argument posits a
false dichotomy between intentional or purposeful acts and
negligent ones, incorrectly suggesting an action based on neglect
only lies for accidental (unintended) conduct. Plainly that is not
so: “Negligence is either the omission of a person to do something
which an ordinarily prudent person would have done under given
circumstances or the doing of something which an ordinarily
prudent person would not have done under such circumstances.”
(Acqua Vista Homeowners Assn. v. MWI, Inc. (2017)
7 Cal.App.5th 1129, 1157; internal quotation marks omitted];
accord, Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 507; see
10 Although we have some doubt whether Anvary stated facts
sufficient to constitute causes of action for conversion and
trespass to chattel, because we affirm the trial court’s rulings
based on the statute of limitations as to these two causes of
action, we need not address that additional argument.
16
CACI No. 401 [“[a] person can be negligent by acting or failing to
act”]; cf. American Internat. Bank v. Fidelity & Deposit Co. (1996)
49 Cal.App.4th 1558, 1573 [“‘[n]egligent’ and ‘accidental’ are not
synonymous”].) It is the failure to use reasonable care, not the
unintended or inadvertent nature of the underlying conduct, that
makes an act negligent. (See Acqua Vista Homeowners Assn., at
p. 1157.)
Driving a car fast is intentional conduct, for example, but
driving too fast for existing weather and road conditions
constitutes negligence because it breaches the driver’s duty of
care, just as parking a car in an unsafe location, while
intentional, may be the basis for an action in negligence. (See,
e.g., Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 768.)
Similarly, prescribing or administering medications that turn out
to be unnecessary or in the wrong dosage, although intentional,
would be actionable only if the physician’s or veterinarian’s
conduct violated the applicable standard of care—that is, when
based on professional negligence.11 Anvary recognized as much in
her original complaint where, after describing the intentional
administration of flea control medicine and other unnecessary
11 In contrast, deliberately striking a dog with a bat would not
be intentional conduct that breached a duty of care; if not
otherwise justified, it is intentional misconduct (wrongful
intentional conduct). (See, e.g., Plotnik v. Meihaus (2012)
208 Cal.App.4th 1590, 1605-1607 [trespass to personal property
cause of action based on defendant attacking plaintiffs’ dog with
a bat]; see also Unruh-Haxton v. Regents of University of
California, supra, 162 Cal.App.4th at p. 355 [allegations of
stealing and then selling a person’s genetic material for financial
gain implicate wrongful intentional conduct, not merely
professional negligence].)
17
medication while Dennis was being treated at Access Hospital,
she nonetheless alleged it was the negligent care of Dennis by
Drs. Lee and Madden that led to the cat’s death.
4. Anvary Is Not Entitled to the Benefit of the Delayed
Discovery Rule
“The limitations period, the period in which a plaintiff must
bring suit or be barred, runs from the moment a claim accrues.”
(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185,
1191.) Traditionally, a claim accrues “‘“when [it] is complete with
all of its elements”—those elements being wrongdoing, harm, and
causation.’” (Ibid.; accord, Howard Jarvis Taxpayers Assn. v. City
of La Habra (2001) 25 Cal.4th 809, 815.) “This is [known as] the
‘last element’ accrual rule.” (Aryeh, at p. 1191.)
An exception to the general rule of accrual is the delayed
discovery rule, “which postpones accrual of a cause of action until
the plaintiff discovers, or has reason to discover, the cause of
action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,
807.) “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.” (Jolly v. Eli Lilly & Co. (1988)
44 Cal.3d 1103, 1110.) In other words, the limitations period
begins “‘once the plaintiff has notice or information of
circumstances to put a reasonable person on inquiry. [Citation.]
Subjective suspicion is not required. If a person becomes aware
of facts which would make a reasonably prudent person
suspicious, he or she has a duty to investigate further and is
charged with knowledge of matters which would have been
revealed by such an investigation.’” (McCoy v. Gustafson (2009)
18
180 Cal.App.4th 56, 108; accord, Fox, at pp. 807-808; Alexander v.
Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251.)
“In order to rely on the discovery rule for delayed accrual of
a cause of action, ‘[a] plaintiff whose complaint shows on its face
that his claim would be barred without the benefit of the
discovery rule must specifically plead facts to show (1) the time
and manner of discovery and (2) the inability to have made
earlier discovery despite reasonable diligence.’” (Fox v. Ethicon
Endo-Surgery, Inc., supra, 35 Cal.4th at p. 808.) “When a
plaintiff reasonably should have discovered facts for purposes of
the accrual of a cause of action or application of the delayed
discovery rule is generally a question of fact, properly decided as
a matter of law only if the evidence . . . can support only one
reasonable conclusion.” (Stella v. Asset Management Consultants,
Inc., supra, 8 Cal.App.5th at p. 193; accord, Broberg v. The
Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912,
921.)
Conflating the rules for demurring based on an affirmative
defense—matters on the face of the complaint or subject to
judicial notice must clearly bar recovery—and those for pleading
the applicability of the delayed discovery rule, Anvary
erroneously contends, because the date of her discovery of the
facts underlying her claims was not directly alleged in the first
amended complaint, the demurrers based on the statute of
limitations should have been denied.
The first amended complaint alleged that mistreatment of
Dennis by Drs. Lee and Madden and Access Hospital on
December 6 and 7, 2017 caused Dennis’s death on December 7,
2017, establishing on its face the accrual of Anvary’s causes of
action more than a year before Anvary filed her original
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complaint absent properly pleaded facts supporting application of
the delayed discovery rule. Anvary failed to carry that pleading
burden.
While Anvary’s first amended complaint implied she did
not learn of the improper administration of medication until she
reviewed medical and billing records, she pleaded neither the
time of discovery (when she first received those records) nor her
inability to discover the underlying facts earlier than she did,
both of which are required for the delayed discovery rule to apply.
To the contrary, Anvary alleged she learned the hospital had
been lying to her about Dennis’s condition before she picked up
the cat at 4:00 a.m. on December 7, 2017, information that was
sufficient, when coupled with the cat’s death later that morning,
to put her on notice that further inquiry was necessary. (See Fox
v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 807 [“[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’”];
see also Stella v. Asset Management Consultants, Inc., supra,8 Cal.App.5th at p. 193 [pleading failed as a matter of law to
support application of the delayed discovery rule because
allegations showed plaintiff did not exercise reasonable
diligence].)12
5. Anvary Pleaded a Distinct Cause of Action for Fraud
Subject to a Three-year Statute of Limitations
“‘The elements of fraud, which give rise to the tort action
for deceit, are (a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or
12 Anvary has never sought leave to amend to address delayed
discovery or suggested she was unaware of the facts supporting
her claims more than a year before filing her lawsuit.
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‘scienter’); (c) intent to defraud, i.e., to induce reliance;
(d) justifiable reliance; and (e) resulting damage.’” (Lazar v.
Superior Court (1996) 12 Cal.4th 631, 638.)
Anvary’s cause of action for deceit (fraud), unlike her
causes of action for conversion and trespass to chattel, was not
predicated solely on allegations that Drs. Lee and Madden and
Access Hospital provided improper care and treatment to Dennis.
Although Anvary alleged the defendants repeatedly
misrepresented Dennis’s condition when she called to check on
his status “to cover up their wrongdoings” and claims that
misinformation prevented her from possibly saving the cat’s life
by taking him to a different clinic—allegations closely linked to
those for veterinary malpractice—she also alleged
misrepresentations were knowingly made to persuade her to keep
Dennis at Access Hospital, avoiding a demand for a refund of her
initial deposit, and with the intention of causing her to incur
additional costs. Those allegations of fraud for financial gain fall
outside the scope of section 340, subdivision (c), and instead are
governed by section 338, subdivision (d)’s three-year limitations
period. The claim for deceit is not time-barred.
6. Anvary Adequately Alleged Her Fraud Cause of Action
“[F]raud must be pled specifically; general and conclusory
allegations do not suffice. Thus the policy of liberal construction
of the pleadings . . . will not ordinarily be invoked to sustain a
pleading defective in any material respect. [¶] This particularity
requirement necessitates pleading facts which show how, when,
where, to whom, and by what means the representations were
tendered.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004)
34 Cal.4th 979, 993 [cleaned up]; accord, Lazar v. Superior Court,
supra, 12 Cal.4th at p. 645 [“A plaintiff’s burden in asserting a
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fraud claim against a corporate employer is even greater. In such
a case, the plaintiff must ‘allege the names of the persons who
made the allegedly fraudulent representations, their authority to
speak, to whom they spoke, what they said or wrote, and when it
was said or written’”].) “However, ‘the requirement of specificity
is relaxed when the allegations indicate that “the defendant must
necessarily possess full information concerning the facts of the
controversy” [citations] or “when the facts lie more in the
knowledge of the”’ defendant.” (Orcilla v. Big Sur, Inc. (2016)
244 Cal.App.4th 982, 1008.)
In their demurrers Drs. Lee and Madden and Access
Hospital argued Anvary failed to sufficiently and specifically
plead the necessary elements of her cause of action for fraud.
The trial court did not reach this issue because it ruled the fraud
cause of action was subject to, and barred by, section 340,
subdivision (c)’s one-year statute of limitations.
Access Hospital presses this point on appeal, emphasizing
that Anvary failed to allege to whom she spoke during her status
update telephone calls and whether that person was a technician,
assistant or doctor. The hospital also argues Anvary failed to
properly allege reliance and causation and asserts the various
misrepresentations alleged by Anvary were all nonactionable
statements of medical opinion regarding Dennis’s condition.
Although she did not identify the speaker(s), Anvary
alleged the misleading status updates were made at the direction
of Drs. Lee and Madden, they were intentionally false and she
believed and reasonably relied upon them in allowing Dennis to
remain at Access Hospital. No greater specificity is required at
the pleading stage, particularly since those conversations all took
place during a brief 18-hour time span and it is likely Access
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Hospital will have records indicating which staff members were
on duty during that time, even if not the names of the individuals
who spoke with Anvary. And the contention the challenged
statements were nonactionable clinical assessments, an
argument only vaguely alluded to in the trial court, is not
persuasive: Under the circumstances as alleged by Anvary,
statements of opinion may be actionable. (See Brakke v.
Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769
[fraud claim may be based on opinion “‘(1) where a party holds
himself out to be specially qualified and the other party is so
situated that he may reasonably rely upon the former’s superior
knowledge; (2) where the opinion is by a fiduciary or other
trusted person; [or] (3) where a party states his opinion as an
existing fact or as implying facts which justify a belief in the
truth of the opinion’”]; Borba v. Thomas (1977) 70 Cal.App.3d
144, 152 [same].)
Although Anvary’s claim of fraud for financial gain (rather
than to cover-up veterinary malpractice) is adequately pleaded,
greater detail concerning the material facts Anvary contends
were intentionally concealed or suppressed to induce her to leave
Dennis at Access Hospital, as well as additional information
concerning the affirmative misrepresentations made to her and
the identity of the individuals she spoke to on December 6 and 7,
2017, would benefit the parties and the trial court. Whether
Anvary choses to provide that information in a second amended
complaint or in discovery responses, however, is a decision for her
and her counsel.
DISPOSITION
The orders of dismissal are reversed. The cause is
remanded with instruction to the trial court to vacate its orders
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sustaining the demurrers without leave to amend, to enter new
orders sustaining without leaving to amend the demurrers to the
causes of action for trespass to chattel and conversion and
overruling the demurrers to the cause of action for deceit, and for
further proceedings not inconsistent with this opinion. The
parties are to bear their own costs on appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
HOWARD, J.*
* Judge of the Marin County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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