Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG04-164478
Richman, J.
Claude Cooper brought this action against five defendants: physicians Steven A. Stanten and Arthur Stanten, and First Surgical Consultants, Inc. (together the Stanten defendants), and physician Chi Lee and Berkeley Urological Associates Medical Group, Inc. (together the Lee defendants). The action was for medical malpractice and constructive fraud relating to diagnosis and treatment Cooper had undergone. Cooper appeals a judgment of dismissal and a judgment of costs issued after the court sustained, without leave to amend, demurrers to his third amended complaint. We affirm the judgment.
Cooper represents himself on appeal, as he did below. The Lee and Stanten defendants have filed separate respondents’ briefs, and Cooper has filed none in reply. The record consists of the chronologically ordered original court file (Cal. Rules of Court, rules 8.120(a)(C) & 8.128(b)(2); all further rule references are to that source.), and a reporter’s transcript.
I. BACKGROUND
Cooper filed his original complaint on July 8, 2004, and demurrers by each defendant group, based in part on the statute of limitations and lack of specificity, were sustained with leave to amend in March 2005. First and second amended complaints met the same fate in June and August rulings later in 2005, the latter one narrowing the causes of action to negligence and constructive fraud. On September 12, 2005, Cooper filed his third amended complaint (TAC), which asserts each tort against each of the defendant groups, and we summarize the pertinent allegations in that manner.
A. The Stanten Defendants.
1. Professional negligence (first cause of action).
Cooper employed the Stanten defendants in March 2001 for a hernia repair and, relying on their skill and learning as medical practitioners, had the surgery on April 11 of that year at Summit Hospital in Oakland. He was rendered unconscious throughout, by anesthetic, but alleges that they failed to exercise proper care and skill. As a proximate result, he was harmed and “concerned” immediately after surgery and prior to hospital discharge about the “large size of his scrotum,” which increased further after release and then through five monthly office visits. This led him, in late August, to seek another doctor and have a CT scan at Summit Hospital that revealed a “large right hydrocele,” which was confirmed by an ultrasound examination on September 4, 2001.
A hydrocele is, as the pleading suggests, “an accumulation of serous fluid in a sacculated cavity esp. the scrotum.” (Webster’s 3d New Internat. Dict. (2002) 1108.)
Looking ahead in the TAC, we read that Cooper underwent further surgery on October 11, 2001, a “right hydrocelectomy” at Alta Bates Hospital, in Berkeley, under the care of the Lee defendants. Negligence on their part required further surgery, at Mt. Zion Hospital in San Francisco, on January 25, 2002, a second right hydrocelectomy and a “right orchiectomy.”
Orchiectomy is the “excision of a testis.” (Webster’s 3d New Internat. Dict., supra, 1587.) It is not alleged that the Lee or Stanten defendants played any role in the surgery at Mt. Zion Hospital in January 2002.
The TAC identifies Cooper’s last contact with the Stanten defendants as an office visit on August 16, 2001, but states that, as a proximate result of their negligence, Cooper years later “suffered separate and distinct injuries beginning in August 2003, namely loss of feeling in groin and pubic area and loss of sexual desire and sexual function”; further, and also “since August, 2003,” he suffered “additional injuries of severe shock to his nervous system, emotional distress, and other injuries, the exact nature and extent of which are presently unknown . . . .”
This action not having been filed until July 2004, Cooper tries to overcome the one-year-from-discovery limitation period (Code Civ. Proc., § 340.5) by alleging: “[The] injuries herein alleged are separate and distinct injuries from any other injuries to plaintiff as a result of defendants’ negligence and said injuries suffered by plaintiff as a result of defendants’ negligence beginning in August, 2[00]3, namely loss of feeling in groin and pubic area and loss of sexual desire and sexual function were not discovered by plaintiff earlier because plaintiff did not have the injuries earlier.”
All unspecified further section references are to the Code of Civil Procedure.
2. Constructive fraud (second cause of action).
Constructive fraud rests on the doctor-patient fiduciary relationship between the Stanten defendants and Cooper, and these defendants having told Cooper, when he asked “ ‘what was wrong’ ” and voiced concern about his scrotum, first in the hospital and later at each monthly visit through August 2001, that this was “normal after hernia surgery and after a few months” would recede. Cooper alleges on information and belief that those representations were knowingly false, that defendants concealed from him that he “in fact had a hydrocele,” and did so intending or knowing that it would induce his reliance. Cooper further alleges that he did rely, and therefore did not seek other medical advice until August 2001, thereby causing his condition to worsen and require correction through the surgeries he underwent. He reiterates here the further proximate “separate and distinct injuries” that began in August 2003—lost feeling in the groin and pubic area, and lost sexual desire and function,” plus added “severe shock to his nervous system, emotional distress, and other injuries . . . .”
B. The Lee Defendants.
1. Professional negligence (third cause of action).
The Lee defendants, holding themselves out as having the skills, learning and abilities of professional medical practitioners, and owing a duty to perform that way, were employed by Cooper on September 14, 2001, to perform a hydrocelectomy, and performed the surgery a month later, on October 11. Cooper was under anesthetic, unconscious, and these defendants allegedly performed negligently during and after the surgery, proximately causing him injury.
Again, in an effort to escape the one-year-from-discovery limitation, Cooper alleges that he has suffered, since August 2003, “separate and distinct injuries” of lost feeling in the groin and pubic area, and lost sexual desire and function, plus “additional injuries of severe shock to his nervous system, emotional distress, and other injuries . . . .” He again alleges that he did not experience until August 2003, and therefore did not discover until then, these further injuries.
2. Constructive fraud (fourth cause of action).
Constructive fraud against the Lee defendants rests on a doctor-patient fiduciary relationship and the concomitant duty to disclose. Cooper alleges these defendants misrepresented their skill and ability to perform this surgery and induced his reasonable reliance to allow it to occur. Immediately following the surgery, Cooper was concerned about the “large size of his scrotum,” and the Lee defendants told him that this would “go away” and go “back to normal,” and that he had “nothing to worry about.” They prescribed an “ultra sound” on November 6, 2001, that showed that he “still had a very large right hydrocele,” thus showing that the October 11 surgery had been “a complete failure.” On January 25, 2002, he was “forced to undergo” the second right hydrocelectomy and right orchiectomy at Mt. Zion Hospital, to correct the problem. He alleges on information and belief that their representations were false, and made knowingly so as to induce his reliance.
As a further “direct and proximate result,” Cooper once again claims “separate and distinct injuries,” beginning in August 2003, of lost feeling in the groin and pubic area, and lost sexual desire and function. This did not occur before, and therefore was not discovered by him, until then. Also since then, he had suffered “additional injuries of severe shock . . . emotional distress, and other injuries . . . .”
C. The Ruling and Judgments.
Demurrers to the TAC were heard on October 25, 2005, with the court taking the matters under submission. The next day, the court issued a detailed, thorough four-page order sustaining the demurrers without leave to amend. The court rested its decision, for all causes of action, on the one-year-from-discovery statute of limitations in section 340.5. (Fn. 4, ante.) It rejected the notion that later injuries beginning in August 2003 could save the action, having explained at the hearing that it was retreating from contrary language in the court’s previous demurrer order.
A judgment of dismissal was filed on December 2, 2005, and a “judgment of costs,” filed January 18, 2006, granted all defendants code costs “according to proof.” On February 6, 2006, Cooper filed notice of appeal specifying a challenge to both judgments.
II. DISCUSSION
A. The Timeliness of the Dismissal Appeal
The Lee defendants urge at the outset that we must dismiss the appeal of the dismissal judgment, for lack of jurisdiction. This is based on the record showing that the Lee defendants served Cooper with notice of entry of that judgment on December 6, 2005, thus starting the normal 60-day filing period (Cal. Rules of Court, rule 8.104(a)(2)), and that Cooper did not file his notice of appeal until February 6, 2006, 62 days later. Cooper has filed no reply brief or other response, but we conclude that dismissal is not warranted.
We judicially notice from the calendar (People v. Malone (1931) 213 Cal. 406, 407) that the 60th day following notice of entry of judgment was a Saturday. Saturday being a holiday for purposes of calculating the time (Cal. Rules of Court, rule 8.60(a); Code Civ. Proc., §§ 12-12b), Cooper’s notice of appeal filed on the next non-holiday, Monday February 6, 2005, was timely. (Estate of Drummond (2007) 149 Cal.App.4th 46, 50, fn. 1; Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1680, fn. 6.) We deny the request for dismissal.
B. The Sustaining of the Demurrer
In reviewing a demurrer, we give the complaint a reasonable interpretation and treat the demurrer as admitting all material facts properly pleaded. We do not, however, assume the truth of contentions, deductions, or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 (Aubry).) We read the complaint as a whole and all of its parts in context (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125), and imply or infer facts from those expressly alleged. (Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918; Estate of Lind (1989) 209 Cal.App.3d 1424, 1430.) We affirm if any ground offered in support of the demurrer was well taken but find error if the plaintiff has stated a cause of action under any possible legal theory. (Aubry, supra, at p. 967.) We review independently whether a cause of action is stated. (Smiley v. Citibank (1995) 11 Cal.4th 138, 146.)
1. Professional Negligence
The elements of a cause of action for professional negligence are: (1) the duty to exercise skill generally possessed by those in the profession, (2) a breach of that duty, (3) a proximate causal connection between the negligent conduct and resulting injury, and (4) actual loss or damage resulting from the professional’s negligence. (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230; Budd v. Nixen (1971) 6 Cal.3d 195, 200.)
For purposes of demurrer, there is no dispute about the sufficiency of allegations of duty, breach of duty, causation and injury, but the timing of the injury was crucial to the statute of limitations. Under such a statute, time commences to run when a cause of action accrues, that is, when the cause of action is complete with all of its elements. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Section 340.5 provides up to three years to commence an action, but not more than “one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first . . . .” (Fn. 4, ante).
Consistent with the “should have discovered” language, the section specifically tolls the three-year period during periods of proven “fraud” or “intentional concealment.” (Fn. 4, ante). “When a complaint shows on its face that an action is barred by the statute of limitations, the use of the demurrer to dispose of that action without additional trial court, attorney, or litigant time and effort is an efficient, appropriate, and well-accepted procedure. [Citation.]” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) It is a plaintiff’s burden to plead facts sufficient to establish tolling, including how, if he lacked actual knowledge, he used proper diligence yet still remained unaware of facts giving him constructive notice. (Tarke v. Bingham (1898) 123 Cal. 163, 165-166; Lady Washington C. Co. v. Wood (1896) 113 Cal. 482, 486-487; McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, fn. 11).
Cooper underwent hernia surgery in April 2001 and remained under the Stanten defendants’ care into August of that year, alarmed from the start about swelling of his scrotum, but repeatedly assured that this was normal and nothing to worry about. He doubted these assurances enough to seek independent medical evaluation (from the Lee defendants) starting in late August, and continued under the Lee defendants’ care through corrective surgery, the first hydrocelectomy, in October 2001. Then he underwent further corrective surgery—the second hydrocelectomy and an orchiectomy—in January 2002, evidently under the care of one or more unnamed other medical practitioners. Cooper’s allegations therefore show that he suspected injury from negligent care under the Stanten defendants since the first hydrocelectomy and, at the very latest, by the second corrective surgery, in January 2002. Even that last date was two and one-half years before he filed his original complaint, in July 2004, and was well beyond the one-year-from-discovery period of section 340.5. The TAC also shows no further medical treatment or advice from the Stanten defendants after August 2001.
What the TAC offers as tolling for this 30-month gap is that, sometime in August 2003—arguably just under the one-year mark if this restarted the tolling—Cooper began experiencing “separate and distinct injuries” of lost feeling in the groin and lost sexual desire or function, plus “additional injuries” of severe shock and emotional distress, none of which he had previously been aware. As the trial court implicitly reasoned, however, the issue is not whether there were “additional” or “separate and distinct” kinds of harm starting in August 2003, but whether harm was already manifest and actionable by January 2003. The TAC clearly alleges that serious harm was already manifest by then, with two resulting hydrocelectomies and a surgical removal of one testis. “A malpractice action may not be pursued piecemeal. ‘ “As a general rule, where an injury, although slight, is sustained in consequence of the wrongful act of another, . . . the statute of limitations attaches at once. It is not material that all the damages [resulting] from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. . . .” ’ [Citation.] ‘The long-standing rule in California is that a single tort can be the foundation for but one claim for damages. [Citation.] Accordingly, if the statute of limitations bars an action based upon harm immediately caused by defendant’s wrongdoing, a separate cause of action based on a subsequent harm arising from that wrongdoing would normally amount to splitting a cause of action. [Citation.]” (Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 391-392.)
Cooper’s cited cases do not establish any apt exception. This is not a case where initial injuries were only nominal or insubstantial, as in Davies v. Krasna (1975) 14 Cal.3d 502, 513-514, or Zambrano v. Dorough (1986) 179 Cal.App.3d 169, 172-174, distinguished in DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1021-1023. The corrective surgeries were clearly substantial. This is also not a case where initial, temporary injuries from a drug lacked any scientific support for the drug being a causative factor, thus rendering an early action futile. (Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316, 320-327 [summary judgment].) This was a case of allegedly negligent surgery having serious and early consequences.
Cooper cites the trial court having accepted, in an earlier demurrer ruling, that distinct injuries might toll the statute, but the correctness of the prior ruling is not before us and, in any event, gives Cooper no cause to complain. Indeed, it may have given him a further chance to amend.
The negligence claim against the Stanten defendants is accordingly barred by section 340.5. The section provides for tolling during periods of fraud or intentional concealment (see fn. 4, ante), but the only tolling allegations of fraud or concealment by the Stanten defendants involved periods ending, at the latest, in August 2001, when they ceased treating and reassuring him. This is the very latest that tolling could have lasted (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 108-109, fn. 5 [ongoing relationship is not enough alone to establish the proof of fraud or intentional concealment as required for tolling by § 340.5]), and it was years short of compensating for the late commencement of this action.
Similarly barred is the professional negligence claim against the Lee defendants. Their alleged role in treating Cooper was the first hydrocelectomy, performed in October 2001, and some unspecified period of post-operative treatment that certainly ended no later than January 2002. The TAC alleges that the first hydroceletomy was negligently performed so that it had to be corrected by a repeated hydrocelectomy and, by that time, an orchiectomy as well, both in January 2002 (evidently by other physicians). We uphold the trial court’s conclusion that, under the allegations of the TAC, Cooper by then either knew, or had reason to suspect, that the Lee defendants’ negligence had caused or contributed to his losses, and this constituted substantial injury occurring years before the alleged “additional” or “separate and distinct” harm that arose starting in August 2003. Again, as with the Stanten defendants, alleged fraud or concealment by the Lee defendants provided at best, under the terms of section 340.5, tolling only so long as he remained under their care. Since his treatment by them ended before January 2002, such tolling could not remedy the problem of waiting another 30 months to commence this action.
2. Constructive Fraud
Cooper alleges that each defendant group committed constructive fraud by concealment or nondisclosure during the existence of a fiduciary physician-patient relationship. By this, Cooper seeks to bring himself within section 338. Section 338 prescribes a three-year period for: “(d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” The trial court concluded, however, that these claims were likewise governed and barred by the one-year limitation period of section 340.5. We agree.
“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 under our code.’ [Citation.]” (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22-23.) A claim of professional negligence in this context rests on the special nature of the physician-patient relationship. The law imposes a “duty not merely to perform . . . work with ordinary care but to use the skill, prudence, and diligence commonly exercised by practitioners of [that] profession” (Neel v. Magan, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 188), and does so mindful, for example, that physicians operate on unconscious clients who “cannot be expected to know the relative medical merits of alternative anesthetics.” (Ibid.) Intrinsic to that same relationship is a fiduciary duty, the bedrock of constructive fraud, to make full and fair disclosure to the patient of all facts materially affecting his or her rights and interests. (Garlock v. Cole (1962) 199 Cal.App.2d 11, 15.) Therefore, it has long been held that when a malpractice plaintiff tries to recast a failure to disclose the nature and extent of injuries as deceit, the one-year statute applies, rather than the three-year statute for fraud. (Ibid.; Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 227.)
Cooper’s fraud allegations against the Stanten defendants are that when he asked “ ‘what was wrong’ ” and voiced concern about his swollen scrotum, first in the hospital and then at every monthly visit, he was told that this was “normal after hernia surgery and after a few months” would recede. He alleges that they intentionally concealed that he “in fact had a hydrocele.” We cannot meaningfully distinguish these facts from a precedent from our own division: Tell v. Taylor (1961) 191 Cal.App.2d 266. The plaintiff in Tell alleged negligent diagnosis and treatment for a fractured hip, including that the defendant “continually assured her and her husband that she would be all right and sustain no permanent injury; that even after [X-rays] revealed the fracture, he told her not to worry about the future and that her bone would knit and heal in due course of time, and all she had to do was to be patient and wait.” (Id. at p. 269.) We rejected her argument that the three-year statute applied to her cause of action for deceit: “Rather, even though the plaintiff alleges false representations on the part of the physician or fraudulent concealment, our courts have always treated the action as one for malpractice [citations].” (Id. at p. 271.)
Cooper relies on a later decision by this division, Nelson v. Gaunt (1981) 125 Cal.App.3d 623, which distinguished the above-cited cases and upheld a jury trial judgment for plaintiff based on both malpractice and fraud. Important distinctions were that the plaintiff had sought elective surgery—breast augmentation—rather than treatment for illness or injury (id. at pp. 632-633), and that the defendant had committed egregious intentional fraud that precluded knowing consent. (Id. at pp. 634-635). He had injected her with silicone without telling her what he was using and knowing, after an arrest just months earlier for the same unauthorized practice, that it was unapproved. (Id. at pp. 629-630, 635.) Nelson held narrowly: “[W]here, as here, a physician knowingly and intentionally represents that he can administer safely a substance that, in fact, can be administered only under restrictions and controls of state or federal authority, and he administers that substance without the requisite permit and without informing the patient of the restrictions and dangers, the patient can maintain an action for fraud as well as malpractice.” (Id. at p. 636.)
Cooper’s case bears scant resemblance to Nelson. The alleged treatment here was for needed surgical repair of a hernia and involved only concealment or nondisclosure akin to ordinary professional negligence. There was no intentional and unlicensed use of unauthorized substances or failure to disclose the use of them.
Constructive fraud allegations against the Lee defendants are very similar and hence likewise barred by the one-year statute. Cooper alleges that the Lee defendants misrepresented their skill and ability to perform the hydrocelectomy to induce his consent and, when he afterward voiced concern about the still-large size of his scrotum, told him that this would “go away” and go “back to normal,” and that he had “nothing to worry about.” The only difference in these allegations is that the Lee defendants misrepresented their skill and ability to perform the hydrocelectomy, in order to induce his consent. Such an assurance of adequate skill and ability, however, is necessarily implicit in every cause of action for professional negligence (Turpin v. Sortini, supra, 31 Cal.3d at pp. 229-230; Budd v. Nixen, supra, 6 Cal.3d at p. 200); simply recasting it as an affirmative assurance does not change the gravamen of the cause of action.
The demurrers were properly sustained.
The three cases cited by Cooper in his additonal authority filed March 12, 2008, and stressed by him at oral argument, do not help him overcome the demurrer. One holds that the duty of full and fair disclosure during an ongoing doctor-patient relationship forestalled a plaintiff’s constructive notice of injury. (Bowman v. McPheeters (1947) 77 Cal.App.2d 795, 800-801.) The TAC here shows actual notice of injury well beyond one year prior to filing.
C. The Denial of Leave to Amend
We review deferentially, for abuse of discretion, whether leave to amend should have been granted (Aubry, supra, 2 Cal.4th at pp. 970-971; Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501). It is an abuse of discretion to sustain a demurrer without leave to amend if a plaintiff shows a reasonable possibility that any defect can be cured by amendment (Aubry, supra, at p. 967), but the burden is on the plaintiff to make that showing (Blank v. Kirwan (1985) 39 Cal.3d 311, 318).
Cooper has not suggested how he might further amend to cure the deficiencies. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302 & fn. 2.) No abuse of discretion appears.
D. The Costs Judgment Appeal
Cooper’s notice of appeal specifies, beyond the dismissal judgment, that it challenges the later judgment of January 18, 2006 awarding costs. That judgment, we note, was for defense costs “according to proof,” and was followed by an “Amended Judgment of Costs” of $1,214.00 to the Lee defendants on February 6. Cooper’s notice of appeal, filed that same day, does not mention the amended judgment, but assuming for sake of argument that we should liberally construe the notice as applying to the amended judgment (rule 8.100(a)(2)), the problem for Cooper is that his briefing, while mentioning his appeal from the costs judgment and asking that we reversed it, raises no argument distinct from his challenges to the underlying dismissal.
Having found no error in the dismissal, and lacking any separate argument against the costs judgment, we affirm the costs judgment as well. Error is not shown.
III. CONCLUSION
The judgments of dismissal and costs are affirmed.
We concur: Kline, P.J., Lambden, J.
Section 340.5 provides in part: “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, 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. 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. . . . .”
There is no dispute that all defendants are health care providers within the meaning of the statute.
Another holds that such a duty supported fraud where doctors who had treated a patient for breast cancer concealed from her the fact, later revealed by a pathology report, that she did not have breast cancer, causing her to suffer for two years with the belief that she had a fatal disease. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 743-744, 748.) Here, as noted, Cooper simply tries to recast ordinary professional negligence into terms of concealment of ineptitude.
The final case holds that custodial elder abuse is, by legislative design, a “separate and distinct cause of action” that does not fall within the limitations periods for ordinary professional negligence. (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 124.) Cooper does not allege custodial elder abuse.