1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF CALIFORNIA 4 5 Thomas Rainey and Judy Rainey, Case No.: 19-cv-1650-L-AGS Co-Conservators, on behalf of 6 COLLEEN GAROT, ORDER DENYING MOTION TO 7 DISMISS PLAINTIFF’S FOURTH Plaintiff, AMENDED COMPLAINT 8 v. 9 [ECF No. 149] COUNTY OF SAN DIEGO et al., 10 Defendants. 11 12 Pending before the Court is Defendant Dr. Quoc Tran’s motion to dismiss Plaintiff 13 Colleen Garot’s fourth amended complaint pursuant to California Civil Procedure Code 14 § 340.5 and Federal Rule of Civil Procedure 12(c). (ECF No. 149.) Ms. Garot opposed 15 the motion, (ECF No. 155), and Dr. Tran replied, (ECF No. 157). The Court decides the 16 matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For 17 the reasons stated below, Dr. Tran’s motion to dismiss is denied. 18 I. BACKGROUND 19 According to the fourth amended complaint, (ECF No. 53), on April 13, 2018, 20 Plaintiff Colleen Garot was arrested and taken to county jail. (ECF No. 53, at 8.) At the 21 time of her arrest, Ms. Garot displayed a black eye and forehead abrasions. (Id.) Early 22 the next morning on April 14, Ms. Garot reported that she had fallen some time in the 23 night and “lost consciousness.” (Id. at 9.) Medical staff noted a bump on the back of her 24 head as well as signs of disorientation. (Id.) At about 11 p.m. that night, Ms. Garot was 25 examined by Defendant Dr. Quoc Tran who noted her multiple facial bruises and left-eye 26 swelling along with “chronic unsteady gait” and tremors. (Id.) Dr. Tran sent Ms. Garot 27 back to her cell with orders to stay on the lower bunk and “continue to monitor.” (Id.) 28 Over the next 36 hours, Ms. Garot’s condition deteriorated: she hallucinated a cowboy 1 and believed a dragonfly was on her arm. (Id. at 10–11.) At about 6:30 a.m. on April 16, 2 2018, she was observed walking around her cell naked and trying to climb the wall. (Id. 3 at 11.) Around 11:20 a.m., Ms. Garot suffered a seizure and was taken to the emergency 4 room, where she was diagnosed with a skull fracture, encephalopathy after traumatic 5 brain injury, and a subdural hematoma. (Id.) She is now completely incapacitated. (Id.) 6 On November 13, 2020, Ms. Garot filed her fourth amended complaint which 7 described Dr. Tran’s April 14, 2018 examination and made two claims against him: one 8 for “deliberate indifference to a substantial risk of harm to health and safety” under 42 9 U.S.C. § 1983 and one for professional negligence under California law. (See ECF No. 10 53.) Dr. Tran now moves to dismiss only the professional-negligence claim, on the sole 11 basis that it is barred by the statute of limitations. 12 II. LEGAL STANDARD 13 “After the pleadings are closed—but early enough not to delay trial—a party may 14 move for judgment on the pleadings.”1 Fed. R. Civ. P. 12(c). “Judgment on the 15 pleadings is properly granted when, accepting all factual allegations in the complaint as 16 true, there is no issue of material fact in dispute, and the moving party is entitled to 17 judgment as a matter of law.” Chavez, 683 F.3d at 1108 (citing Fleming v. Pickard, 581 18 F.3d 922, 925 (9th Cir. 2009)). Specifically, “[a] claim may be dismissed [under Rule 19 12(c)] on the ground that it is barred by the applicable statute of limitations only when 20 ‘the running of the statute is apparent on the face of the complaint.’” Von Saher v. 21 Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting 22 Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). 23 24 25 26 1 Dr. Tran characterizes the present motion as a motion to dismiss despite filing after pleadings have 27 closed. (See ECF No. 149-1.) But Federal Rule of Civil Procedure 12(h)(2)(B) allows a motion to dismiss to be raised by a Rule 12(c) motion, and the analysis under both is “substantially identical.” 28 1 DISCUSSION 2 The applicable limitation to Ms. Garot’s professional negligence claim is “three 3 || years after the date of injury or one year after the plaintiff discovers, or through the use of 4 ||reasonable diligence should have discovered, the injury, whichever occurs first.” Cal. 5 || Civ. Proc. Code § 340.5; see also Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 109-10 6 || (1945) (holding that the state statute of limitations applies to state claims in federal 7 || court). 8 The events giving rise to the present action took place on April 14, 2018, and the 9 || operative complaint was filed on November 13, 2020, roughly two and a half years later. 10 ||(ECF No. 53.) Dr. Tran argues that Ms. Garot made it clear in her complaint that she was 11 aware of the treatment he provided and was therefore aware of her injury, giving her one 12 || year from the date of treatment to file her claim. (ECF No. 149-1, at 4.) But under 13 section 340.5, a claim filed within three years of the injury may be timely depending on 14 || the plaintiff's knowledge and diligence. The Court is not in a position to make factual 15 || determinations regarding Ms. Garot’s knowledge and diligence at this juncture. Thus, the 16 |/untimeliness of Ms. Garot’s claim, filed less than three years after her treatment from Dr. 17 || Tran, is not apparent on the face of the complaint. Accordingly, Dr. Tran’s motion to 18 || dismiss is denied. 19 |TV. CONCLUSION 20 For the reasons stated above, Dr. Tran’s motion to dismiss is DENIED. 21 IT IS SO ORDERED. 22 23 || Dated: December 2, 2022 25 H . James Lorenz, United States District Judge 26 27 28