Deptula v. Friedman CA2/4

Filed 5/31/23 Deptula v. Friedman CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CARA DEPTULA, B321383
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 21STCV41594)
v.
LAUREN FRIEDMAN,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, William A. Crowfoot, Judge. Affirmed.
Cara Deptula, in pro. per., for Plaintiff and Appellant.
Wood, Smith, Henning & Berman, Ryan Deane, Trent G.
Leaf for Defendant and Respondent.
INTRODUCTION
Appellant Cara Deptula alleged she was injured by dental
work performed by respondent Lauren Friedman. Deptula’s last
treatment from Friedman was in October 2019, and Deptula
alleged she was aware of her injuries and their cause by October
2020. Deptula sued Friedman for medical malpractice more than
a year later, in November 2021. Friedman demurred, asserting
that Deptula’s claim was time-barred under Code of Civil
Procedure, section 340.5,1 which provides that a medical
malpractice action must be filed within three years after the date
of injury or one year after the plaintiff discovers the injury,
whichever occurs first. Relying on Deptula’s express allegation
that she had discovered her injuries and their cause in October
2020, the superior court sustained Friedman’s demurrer without
leave to amend. Deptula appealed.
We affirm. Deptula alleged she was aware of her injuries
and their cause in October 2020. We assume the truth of that
allegation. Deptula filed her lawsuit over a year later, in
November 2021. Deptula’s claim is therefore time-barred under
section 340.5.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
On November 12, 2021, Deptula, acting in propria persona,
filed a complaint for medical malpractice. She stated that her
allegations arose from “medical malpractice as pertains to her
dental care services received by Plaintiff between 2017 and 2019 .
. . which caused her to lose teeth unnecessarily and suffer various
unnecessary medical ailments.” Deptula’s allegations included
1All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
that Friedman prescribed root canals for teeth that were not
infected; overprescribed antibiotics; recommended that a crown
remain off an infected tooth so it could drain; installed crowns
that lasted only two weeks; neglected to tell Deptula she had
infections; and withheld dental records from Deptula and her
new dentist. Deptula alleged she suffered headaches, jaw pain,
earaches, and face pain, and that the prescription of long-term
antibiotics caused multiple, ongoing health problems. She
alleged she could not work as a result of her health issues, which
also caused her to lose a school scholarship.
Regarding the timing of her injuries, Deptula alleged that
“[a]ll damages occurred over a short period of six months between
March – October of 2019.” She alleged she was in pain for
several months, and at the time of her last appointment with
Friedman on October 5, 2019, she had pain on both sides of her
mouth. She alleged that “[a]fter [Deptula] saw Friedman in
October 2019, she knew she had to see another dentist” because
she was “in severe pain and the doctor yet told her nothing was
wrong.” Deptula alleged that she “got even more physically ill in
November of 2019.”
Deptula alleged that her new dentist “found the infection at
the first appointment in January 2020,” and Deptula’s “pain
continued until the tooth was pulled” by the new dentist on
January 20, 2020. In October 2020, she discovered “that her
sickness was due to 3 infections left in her mouth and ignored by
Friedman as well as the over prescription of 4 rounds of
antibiotics over 40 days.” She alleged, “It was in October [2020]
that plaintiff realized that the antibiotics along with the
infections had brought out all these severe [health] issues.”
Deptula further alleged, “The actual Date of full discovery of
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damages was October of 2020 with more damages being seen and
understood in March 2021.” She also stated, “The cause of these
injuries was discovered in late 2020, when Plaintiff sought other
medical insights from doctors on previous prescriptions and
treatments done by” Friedman.
Deptula alleged that she began requesting her dental
records from Friedman in December 2019, but Friedman refused
to provide the records. Deptula alleged that she received most of
her records by May 2020, after she sought the assistance of the
state Dental Board. She attached a notice of intent to sue dated
February 1, 2021, which she had served on Friedman.2 Deptula
sought $266,000 in damages, as well as punitive damages.
B. Demurrer, opposition, and reply
Friedman filed a demurrer asserting that Deptula failed to
state facts sufficient to constitute a cause of action because her
claims were time-barred.3 (§ 430.10, subd. (e).) Friedman noted
that for medical malpractice, “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.” (§ 340.5.) Friedman stated that according to Deptula’s
complaint, she was aware of her injuries and their cause no later
than January 2020, when she began seeing a different dentist,
was informed about her tooth infections, and experienced relief
2 Under section 364, subdivision (a), a plaintiff may not
commence a medical malpractice action “unless the defendant
has been given at least 90 days’ prior notice of the intention to
commence the action.”
3 Freidman also filed a motion to strike, which was deemed
moot after the court sustained the demurrer without leave to
amend. The motion to strike is not at issue in this appeal.
4
after an infected tooth was pulled. Friedman asserted the statute
of limitations on Deptula’s claim therefore expired in January
2021—before Deptula filed her complaint in November 2021.
Friedman noted that under the Judicial Council’s
Emergency Rule 9(a),4 statutes of limitation were tolled from
April 6, 2020 to October 1, 2020 due to the Covid-19 pandemic.
Friedman argued that this would extend the January 2021
limitation period into July 2021—which was still several months
before Deptula filed her complaint.
Friedman further acknowledged that in a medical
malpractice action, when a notice of intent to sue under section
364 “is served within 90 days of the expiration of the applicable
statute of limitations, the time for the commencement of the
action shall be extended 90 days from the service of the notice.”
(§ 364, subd. (d).) Here, however, Deptula served her notice of
intent to sue on February 1, 2021, which was not within 90 days
of the expiration of the statute of limitations, so this exception
did not apply.
In her opposition to the demurrer, Deptula stated that
Friedman was attempting to have the court “concoct its own date
of discovery as January 2020,” when “[t]he complaint states that
injuries were discovered in October 2020, with additional injuries
discovered through March 2021.” She stated that this date of
discovery, along with the six months’ tolling in Emergency Rule
9(a), rendered her November 2021 complaint timely. Deptula
asserted that Friedman delayed in providing Deptula’s records to
4 “Notwithstanding any other law, the statutes of
limitations and repose for civil causes of action that exceed 180
days are tolled from April 6, 2020, until October 1, 2020.” (Cal.
Rules of Court, Appen. I, Emergency Rule 9(a).)
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her, and the “mere identification of infections by a new dentist” in
January 2020 was “not enough to hold defendant responsible
without dental records from defendant.” Deptula stated that
“later in 2020” she sought legal advice regarding suing Friedman,
and the “[a]ttorneys advised [her] not to file suit until records
were obtained.” She attached a letter from an attorney, which
noted that the attorney and Deptula discussed the matter in
December 2020 and January 2021, but the attorney would not
take the case without reviewing medical records first. Deptula
asserted that Friedman’s “various HIPAA violations” involved
“concealment and delay of providing dental records” to Deptula,
which supported tolling the statute of limitations.
In her reply, Friedman argued that if Deptula discovered
her damages in October 2020, as alleged in the complaint and the
opposition, the tolling of Emergency Rule 9(a) did not apply,
because the statute of limitations did not begin to run until
sometime in October 2020—after the emergency tolling period
had ended. Friedman also disputed Deptula’s claim that the
discovery of her injuries was not complete until she received
medical records or knew of all her alleged damages, noting that a
plaintiff “discovers the cause of action when [she] at least
suspects a factual basis . . . for its elements, even if [she] lacks
knowledge thereof . . . .” (Norgart v. Upjohn Co. (1999) 21 Cal.4th
383, 397 (Norgart).) Friedman asserted that it made no
difference that an attorney told Deptula that she should wait
until she received medical records, because discovery of an injury
cannot be delayed based on the advice of counsel. (Gutierrez v.
Mofid (1985) 39 Cal.3d 892, 895 (Gutierrez).)
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C. Court ruling
The court issued a tentative ruling sustaining the
demurrer. There is no reporter’s transcript of the hearing in the
record on appeal. Following the hearing, the court adopted its
tentative ruling.
The court noted that under section 340.5, a medical
malpractice action must be brought within three years after the
date of injury or one year after the plaintiff discovers the injury,
whichever occurs first. The court stated that Deptula’s “litany of
facts shows that she knew as of January 2020 that [Friedman]
had done ‘something wrong’” based on her symptoms and
information from the new dentist. The court continued, “But
even if [Deptula] only discovered her damages by October 31,
2020 at the latest, . . . [she] did not file this action until
November 12, 2021, which is outside the one-year statute of
limitations period.” The court further found that Deptula’s
reliance on counsel’s advice regarding obtaining medical records
did not extend the limitations period. The court therefore
sustained the demurrer without leave to amend, and dismissed
the action.
Deptula timely appealed.
DISCUSSION
A. Legal standards
“A demurrer tests the legal sufficiency of the factual
allegations in a complaint.” (Ivanoff v. Bank of America, N.A.
(2017) 9 Cal.App.5th 719, 725.) On appeal after a demurrer has
been sustained, we determine de novo whether the complaint
states facts sufficient to constitute a cause of action. (Loeffler v.
Target Corp. (2014) 58 Cal.4th 1081, 1100.) We “‘assume the
truth of the complaint’s properly pleaded or implied factual
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allegations.’” (Ibid.) “On appeal, a plaintiff bears the burden of
demonstrating that the trial court erroneously sustained the
demurrer as a matter of law.” (Williams v. Sacramento River
Cats Baseball Club, LLC (2019) 40 Cal.App.5th 280, 286.)
As stated above, a medical malpractice action must be
brought 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.” (§ 340.5.) The relevant question in this appeal is when
Deptula discovered, or reasonably should have discovered, the
injury. The term “injury” in section 340.5 refers to both the
physical condition and its negligent cause. (Gutierrez, supra, 39
Cal.3d at p. 896.) “Thus, once a patient knows, or by reasonable
diligence should have known, that [she] has been harmed
through professional negligence, [she] has one year to bring [a]
suit.” (Ibid.)
B. Analysis
Deptula asserts in her opening brief that she was “made
aware that . . . Friedman was to blame for” her injuries “in
October 2020.” This comports with her complaint, which alleged,
“The actual Date of full discovery of damages was October of 2020
with more damages being seen and understood in March 2021.”
We must “accept as true all the material allegations of the
complaint” (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039,
1049, fn.2), and therefore Deptula had one year from the date of
discovery to file suit, until October 2021. Because she did not file
her complaint until November 12, 2021, her cause of action is
untimely.
The six-month tolling period imposed by Emergency Rule
9(a) has no effect on Deptula’s claim. Emergency Rule 9(a) tolled
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statutes of limitations “from April 6 to October 1, 2020.” Because
Deptula alleged that she discovered her cause of action sometime
in October 2020, the statute of limitations began to run either on
the very last day of the tolling period (October 1) or outside the
tolling period altogether. Either way, her complaint, filed
November 12, 2021, was untimely.
Deptula asserts that because she is not a doctor, she should
not be expected to know the cause of her injuries, especially in
light of Friedman’s delays in providing Deptula’s dental records,
which “were needed in order to determine whether the
treatments [Friedman] provided were legally sound.” Deptula
suggests that Friedman’s withholding of her dental records could
be construed as “fraud or intentional concealment.” Indeed, the
second sentence of section 340.5 allows the three-year statute of
limitations to be tolled for fraud or intentional concealment.5
However, “the second sentence applies only to the three-year
maximum, not also to the one-year period.” (Belton v. Bowers
Ambulance Service (1999) 20 Cal.4th 928, 932.)
Moreover, whether Deptula obtained her dental records has
no effect on the accrual of her claim. “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.) As long as Deptula had a reasonable basis to
5 The second sentence of section 340.5 reads, “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.”
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sue, there was no need to gather specific evidence before filing
her complaint. “A plaintiff need not be aware of the specific
‘facts’ necessary to establish the claim; that is a process
contemplated by pretrial discovery.” (Ibid.) “Thus, when the
patient’s ‘reasonably founded suspicions [have been aroused],’
and she has actually ‘become alerted to the necessity for
investigation and pursuit of her remedies,’ the one-year period for
suit begins.” (Gutierrez, supra, 39 Cal.3d at p. 897.) The
complaint makes clear that Deptula knew of her injuries and
their cause no later than October 2020.
Deptula further contends that any delay in filing was based
on advice from the attorney who “told her she must wait for
dental records before filing the lawsuit.” However, advice from
an attorney cannot extend the statute of limitations. The
Supreme Court considered a similar argument in Gutierrez,
supra, 39 Cal.3d 892. There, in December 1978 the plaintiff
authorized a surgery to diagnose abdominal pain and remove a
tumor on her appendix; she awoke to find that the surgeons had
done a complete hysterectomy. (Id. at p. 895.) The plaintiff
immediately felt the surgeons had done something wrong to her,
but an attorney she consulted “told her there was ‘no provable
malpractice.’” (Id. at p. 896.) After consulting a second law firm,
the plaintiff filed a malpractice action in November 1980. (Ibid.)
The plaintiff acknowledged that her claim was filed more than a
year after she knew of her injury and suspected malpractice, but
she argued that “her prompt consultation with an attorney
prevented her from learning the ‘negligent cause’ of her condition
. . . since the lawyer told her she had no legal claim.” (Id. at p.
897.)
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The Supreme Court rejected this argument. It stated that
under the statute of limitations in section 340.5, “[i]t is irrelevant
that the plaintiff is ignorant of [the] legal remedy or the legal
theories underlying [her] cause of action. Thus, if one has
suffered appreciable harm and knows or suspects that
professional blundering is its cause, the fact that an attorney has
not yet advised [her] does not postpone commencement of the
limitations period.” (Gutierrez, supra, 39 Cal.3d at p. 898.) The
court reiterated, “we are not persuaded that reliance on an
attorney’s advice postpones the time of ‘discovery,’ thus extending
the limitations period applicable to one who had already come to
suspect [she] is a victim of malpractice.” (Ibid.)
The same is true here. Deptula’s complaint makes clear
that she suspected her injury was caused by Friedman’s
wrongdoing no later than October 2020. The statute of
limitations began running then—not when Deptula sought or
received advice about how to proceed with a lawsuit.6
Deptula asserts in the alternative that the three-year
limitation in section 340.5 should apply instead of the one-year
6 Deptula also suggests, “At worst, [the] attorney who
advised [Deptula] could be held responsible under California
Code of Civil Procedure 473 b.” Section 473, subdivision (b),
allows a court to “relieve a party or his or her legal representative
from a judgment . . . taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect.” Deptula
neither filed an application for relief under section 473 nor
asserted this argument in her opposition below, so this
contention has been forfeited. (Kern County Dept. of Child
Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038
[“It is axiomatic that arguments not raised in the trial court are
forfeited on appeal”].)
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limitation. She argues, “[T]his case was filed within the three
year period permitted by [section] 340.5 so it should not be
necessary for [Deptula] to prove why she did or did not file within
one year.” However, section 340.5 states that an action must be
brought within three years of the injury or one year of discovery,
“whichever occurs first.” The last possible date of injury was
October 5, 2019 (the last date of Friedman’s treatment),
triggering a three-year limitation date of October 4, 2022.
Deptula discovered the injury in October 2020, triggering a one-
year limitation date sometime in October 2021. The one-year
limitation date—October 2021—”occurs first,” so that limitation
applies under section 340.5.
Deptula also argues that she sent an intent-to-sue notice to
Friedman in February 2021, which “caused equitable tolling of
the statute of limitations.” Section 364, subdivision (d) states
that an intent-to-sue notice may toll the statute of limitations
“[i]f the notice is served within 90 days of the expiration of the
applicable statute of limitations.” Here, the February 1, 2021
intent-to-sue letter was not served within 90 days of the
expiration of the statute of limitations period (October 2021). An
intent-to-sue notice served before the last 90 days of the
limitation period does not toll the statute of limitations. (Woods v.
Young (1991) 53 Cal.3d 315, 325.) Deptula cites no other
authority suggesting that an intent-to-sue notice may otherwise
toll the limitations period.
Many of Deptula’s arguments boil down to a contention
that it is unfair to apply the one-year limitation period to her
claim without considering “mitigating factors.” However, a
statute of limitations reflects a “balance the Legislature struck
between a plaintiff’s interest in pursuing a meritorious claim and
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the public policy interests in prompt assertion of known claims.
The courts may not shift that balance by devising expedients that
extend or toll the limitations period.” (Jordache Enterprises, Inc.
v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 756
[discussing section 340.6].)
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING, P.J.
We concur:
MORI, J.
ZUKIN, J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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