Carrillo v. County of Santa Clara

Filed 3/14/23 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
EMILIO CARRILLO, B322810
Plaintiff and Appellant, (Santa Clara County
Super. Ct. No. 19CV342118)
v.
ORDER MODIFYING
COUNTY OF SANTA CLARA, OPINION
Defendant and Respondent. [NO CHANGE IN
JUDGMENT]
THE COURT*
It is ordered that the opinion filed March 13, 2023 be
modified as follows:
On page one, on the caption page, as to the Santa Clara
County Superior Court case number, replace the case number
“19CV43225” with “19CV342118” .
The modification does not change the judgment.
________________________________________________________
__________
COLLINS, ACTING P.J. CURREY, J.
*SCADUTO, J.
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
2
Filed 3/13/23 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
EMILIO CARRILLO, B322810
Plaintiff and Appellant, (Santa Clara County
Super. Ct. No. 19CV43225)
v.
COUNTY OF SANTA CLARA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Santa Clara County, Mark H. Pierce, Judge. Affirmed.
Law Office of Bobby Lau and Babach “Bobby” Lau for
Plaintiff and Appellant.
James R. Williams, County Counsel (Santa Clara) and
Kim H. Hara, Deputy County Counsel, for Defendant and
Respondent.
INTRODUCTION
Appellant Emilio Carrillo appeals from a judgment of
dismissal of his medical negligence claim against respondent
County of Santa Clara after the trial court sustained the
County’s demurrer without leave to amend on statute of
limitations grounds. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Carrillo Sues the County for Medical
Negligence
On January 18, 2019, Carrillo sued the County and
Does 1 through 50 for medical negligence and battery.
Carrillo withdrew the battery claim when he filed a first
amended complaint on June 7, 2019. In the FAC, Carrillo
alleged that, in December 2017, while in the custody of the
County’s Department of Corrections, he developed a “large
blister on the bottom of his right foot.” A County nurse
identified in the complaint as Doe 1 “popped” the blister over
his objection while he was restrained, resulting in an “open
and exposed wound.” Within three days, the wound became
infected, and Carrillo developed gangrene, became febrile,
and went into septic shock. He was admitted to Santa Clara
Valley Medical Center, where his right foot was amputated
on December 20, 2017, “[d]ue to the damage from the
infection and its related symptoms.”
In April 2018, he visited the Mexican Consulate in San
Jose to obtain guidance on immigration matters. While
2
there, “the subject of his right foot amputation came up” and
Carrillo “‘became informed and on that basis believed’” that
the nurse’s treatment of his blister caused the gangrene and
septic shock, which in turn led to the amputation. On June
18, 2018, he presented a “Notice of Claim” to the County for
medical negligence, which the County rejected on July 19,
2018. Carrillo filed his initial complaint on January 18,
2019, one day shy of six months after that rejection.
B. The County Demurs
On July 12, 2019, the County demurred to Carrillo’s
FAC. The County argued that Carrillo’s medical negligence
claim was time-barred, citing Code of Civil Procedure section
340.5 (MICRA),1 which provides that a plaintiff must file
suit “within 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.” (Code Civ. Proc., § 340.5.) Because Carrillo’s
foot was amputated on December 20, 2017, the County
argued he was required to file suit no later than December
20, 2018, making his January 18, 2019, complaint untimely.
The County characterized as irrelevant Carrillo’s
assertion that he did not begin to suspect medical negligence
was the cause of his injury until April 2018, as there could
be “no question but that a reasonable person having his foot
1 MICRA is the Medical Injury Compensation Reform Act.
(Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1199
(Anson).)
3
amputated under such circumstances would necessarily be
on notice that something was wrong.” The County also
argued that MICRA’s one-year limitations period was not
extended by Government Code section 945.6 (the
Government Claims Act), which provides that “any suit
brought against a public entity on a cause of action for which
a [pre-filing] claim is required to be presented” to the public
entity must be filed within six months after the public
entity’s rejection of the claim. The County argued that, for
his claim against the County to be timely, Carrillo was
required to satisfy the deadlines in both statutes.
Carrillo opposed the demurrer. He argued that the
applicable statute of limitations was MICRA’s “‘outside date’
of three years” and that, in any case, his claim was timely
because “he was not reasonably informed about the
manifestation of the injury and its negligent cause until in or
around April[] 2018 after he visited the Mexican Consulate.”
C. The Court Sustains the Demurrer
In November 2019, the court sustained the County’s
demurrer without leave to amend. Citing Roberts v. County
of Los Angeles (2009) 175 Cal.App.4th 474 (Roberts), the
court held that “[t]he Government Claims Act[’]s filing
deadlines and limitations period do not supplant the CCP
340.5 limitations periods with respect to malpractice actions
against government entity health care providers” and that a
“plaintiff must comply with both statutes within the
applicable CCP 340.5 limitations period (one year or three
4
years).” The court additionally found that the time to file
suit began to run no later than when Carrillo’s foot was
amputated on December 20, 2017. The court reasoned that
MICRA’s one-year statute of limitations applied both
because the “FAC’s allegations make clear that Plaintiff
actually believed by the end of December 2017 that his
injury . . . was caused by the nurse’s popping of the blister on
his foot, satisfying the subjective test for triggering the one-
year statute of limitations under CCP 340.5” and because
the “FAC’s allegations also satisfy the objective test for
triggering the one-year statute of limitations, as a
reasonable person suffering Plaintiff’s injury would have
suspected by the end of December 2017 that medical care
provided by the nurse before the infection developed had
something to do with the injury and that reasonable person
would have been on inquiry notice by the end of December
2017.”
The trial court rejected Carrillo’s contention that the
time to bring suit did not begin to run until he visited the
Mexican Consulate in April 2018. The court concluded that
Carrillo could not “credibly argue that he had no reason to
suspect wrongdoing or a need to investigate the very obvious
amputation of his foot” and that there could be “no question
but that a reasonable person having his foot amputated
under such circumstances would necessarily be on notice
that something was wrong.”
After the court entered judgment in the County’s favor,
Carrillo timely appealed. In August 2022, the Supreme
5
Court transferred the appeal from the Sixth Appellate
District to the Second Appellate District.
DISCUSSION
A. Carrillo Was Required to Meet the Deadlines
Set Forth in Both Code of Civil Procedure
Section 340.5 and Government Code Section
945.6
Carrillo contends the trial court erred in sustaining the
demurrer because the applicable statute of limitations is
three years when both MICRA and section 945.6 apply, not
one year. Except in circumstances inapplicable here, “any
suit brought against a public entity on a cause of action for
which a claim is required to be presented” must be brought
within six months after the County’s rejection of the claim.
(Gov. Code, § 945.6, subd. (a)(1).)2 Additionally, under
MICRA, a plaintiff alleging medical negligence must file suit
within “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.” (Code Civ. Proc., § 340.5.) As to the one-year
limitations period, MICRA “sets forth two alternate tests for
triggering the limitations period: (1) a subjective test
requiring actual suspicion by the plaintiff that the injury
was caused by wrongdoing; and (2) an objective test
2 Undesignated statutory references are to the Government
Code.
6
requiring a showing that a reasonable person would have
suspected the injury was caused by wrongdoing.” (Kitzig v.
Nordquist (2000) 81 Cal.App.4th 1384, 1391.)
Carrillo contends the trial court misread Roberts and
argues that Roberts held that, where both section 945.6 and
MICRA apply, the applicable limitations period is three
years. We disagree.
In Roberts, the plaintiff suffered severe brain damage
while receiving care from a medical center operated by the
County of Los Angeles. (Roberts, supra, 175 Cal.App.4th at
477.) The plaintiff’s family was informed of the injury the
day it occurred. (Ibid.) After conservators were appointed
for the plaintiff more than three years later, they presented
a timely claim under the Government Claims Act, which was
subsequently rejected. (Id. at 478.) Within six months of the
rejection, but more than four years after the injury, the
conservators brought a medical negligence claim against the
County of Los Angeles. (Ibid.) The trial court granted the
county’s summary judgment motion on statute of limitations
grounds. (Id. at 477–478.)
Our colleagues in Division Three affirmed. (Roberts,
supra, 175 Cal.App.4th at 477.) In so doing, they rejected
the plaintiff’s argument that section 945.6 effectively
extended the time to bring suit under MICRA, holding that
the statutes could and should both be given effect. (Id. at
480–481.) The court stated in Roberts that MICRA’s three-
year limitations period was “the outer limit by which a
lawsuit must be filed against a public health care provider.”
7
(Id. at 481.) The court explained that, “[t]his way[,] MICRA
can apply to public health care providers without conflicting
with the Government Claims Act. By the same token,
plaintiffs can comply with the section 945.6 limitations
period without running afoul of Code of Civil Procedure
section 340.5’s three-year limit.” (Ibid.)
Carrillo argues that, because Roberts did not state the
claim therein was barred by MICRA’s one-year statute of
limitations, it stands for the proposition that MICRA’s three-
year limitations period governs when both MICRA and
section 945.6 apply. But the plaintiff in Roberts filed suit
outside the three-year limitations period, so the court had no
need to consider or decide whether MICRA’s one-year
statute of limitations applied. Carrillo concedes that “the 1-
year deadline . . . in section 340.5 was not mentioned” in
Roberts. “‘It is axiomatic that cases are not authority for
propositions not considered.’” (In re Marriage of Cornejo
(1996) 13 Cal.4th 381, 388.)
Moreover, Roberts stated that, for claims against a
public entity, where both MICRA and section 945.6 are
applicable, the goal is to “‘harmonize the law’” and “‘avoid an
interpretation that requires one statute to be ignored.’”
(Roberts, supra, 175 Cal.App.4th at 480; see also id. at 484
[“[I]t would be incongruous if plaintiff were allowed to invoke
the tolling provisions of the Government Claims Act, which
was intended by the Legislature to limit actions against
public entities, to escape the effect of the statute of
limitations of another statute with a similar goal”]; accord,
8
Anson, supra, 202 Cal.App.3d at 1199, 1202 [MICRA and
section 945.6 stand on “equal footing”].) Interpreting
Roberts as Carrillo urges would necessitate ignoring the
portion of MICRA requiring a lawsuit to be filed within three
years after the injury “or [within] one year after the plaintiff
discovers, or through the use of reasonable diligence should
have discovered, the injury, whichever occurs first.” (Code
Civ. Proc., § 340.5.) We hold that, here, where both section
945.6 and MICRA apply, Carrillo was obligated to meet the
deadlines set forth in both statutes.
B. The Allegations of the FAC Do Not Support a
Delayed Discovery Exception to the One-Year
Statute of Limitations
Carrillo alleged in the FAC that it was upon visiting
the Mexican Consulate for “guidance on immigration
matters” in or around April 2018 that he “became informed
and on that basis believed that the actions of [the County
nurse] were the cause of his gangrene and septic shock,
which resulted in the amputation of his right foot.” He
argues on appeal that the trial court “abused its discretion
by making a credibility judgment” when it rejected Carrillo’s
argument that his suit was timely because he alleged he did
not form the “requisite suspicion of negligent cause” until he
visited the Mexican Consulate in April 2018. It is true that
a demurrer admits the truth of all material facts properly
pleaded. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35
Cal.4th 797, 810.) Here, however, the alleged timing of
9
when Carrillo began to suspect the nurse’s actions caused
his injury is not dispositive of the time when the statute of
limitations began to run on his medical negligence claim.
Generally speaking, a cause of action accrues at the
time when the cause of action is complete with all of its
elements. (Fox v. Ethicon Endo-Surgery, supra, 35 Cal.4th
797 at 806). The “discovery rule” is an exception to this
general rule and postpones accrual of a cause of action until
the plaintiff discovers, or has reason to discover, the cause of
action. (Id. at 807.) 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. (Id. at 808.) In assessing the sufficiency of the
allegations of delayed discovery, the court places the burden
on the plaintiff to show diligence. (Ibid.) Conclusory
allegations will not withstand demurrer. (Ibid.)
“[O]nce a patient knows, or by reasonable diligence
should have known, that he has been harmed through
professional negligence, he has one year to bring his suit.”
(Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896 (Gutierrez).) A
patient “is charged with ‘presumptive’ knowledge of his
negligent injury, and the statute commences to run, once he
has ‘“notice or information of circumstances to put a
reasonable person on inquiry, or has the opportunity to
obtain knowledge from sources open to his
10
investigation . . . .”’” (Id. at 896–897.) “It is irrelevant that
the plaintiff is ignorant of his legal remedy or the legal
theories underlying his cause of action.” (Id. at 898.)
Here, the trial court concluded that the “FAC sets forth
the alleged causation and makes clear that [Carrillo] was
aware that the purportedly unauthorized treatment (the
nurse popping his foot blister) and the purported consequent
outcome (the amputation of that same foot) all occurred in
December 2017.” Carrillo argues that the court improperly
disbelieved his allegation that, despite the temporal
proximity of the nurse’s actions and his amputation, he did
not begin to suspect a connection between those events until
April 2018. But, as the trial court concluded, Carrillo failed
in the FAC to plead specific facts to show he could not have
earlier made this discovery, even with reasonable diligence.
(Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at 808,
815.)
Moreover, Carrillo sidesteps the trial court’s
freestanding conclusion that he was, at a minimum, on
“inquiry notice” by the end of December 2017. (Gutierrez,
supra, 39 Cal.3d at 896–898; see also Kitzig v. Nordquist,
supra, 81 Cal.App.4th at 1391.) By failing to address the
court’s conclusion that a reasonable person would have been
prompted to investigate by the time of the amputation,
Carrillo has forfeited any argument that the court erred in
so concluding. (Wall Street Network, Ltd. v. New York Times
Co. (2008) 164 Cal.App.4th 1171, 1177.) Even if he had not,
we find no error in the trial court’s conclusion that, by the
11
time of the amputation “a reasonable person having his foot
amputated under such circumstances would necessarily be
on notice that something was wrong and . . . would have
acted diligently to discover the cause of his injury at that
time.”3 (See Saliter v. Pierce Brothers Mortuaries (1978) 81
Cal.App.3d 292, 299–300 [where allegations bearing on issue
of whether plaintiff was on inquiry notice would support only
one legitimate inference, question is one of law that may be
resolved on demurrer].)
Because Carrillo filed his suit more than a year after
his amputation, the trial court did not err in sustaining the
County’s demurrer on statute of limitations grounds.4
3 This court need not decide the propriety of the trial court’s
conclusion that the allegations of the FAC show that Carrillo
subjectively had the requisite knowledge more than a year before
he filed his complaint. (See Excelsior College v. Board of
Registered Nursing (2006) 136 Cal.App.4th 1218, 1237, fn. 3
[“Since we uphold the trial court’s ruling on the first basis for
demurrer, we need not address this second argument”].)
4 The County also demurred on immunity grounds under
Government Code section 844.6, subdivision (a)(2), which
provides that a public entity is not liable for an injury to a
prisoner. Because the trial court sustained the demurrer on
statute of limitations grounds, it declined to reach this issue.
Because we affirm the trial court’s order sustaining the demurrer
on statute of limitations grounds, this court need not reach the
immunity issue, either.
12
DISPOSITION
The judgment is affirmed. Respondent is awarded its
costs on appeal.
CERTIFIED FOR PUBLICATION
SCADUTO, J. *
We concur:
COLLINS, Acting P.J.
CURREY, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
13