Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. 06CECG02927, Alan M. Simpson, Judge.
Janice Lingenfelter, in pro. per., for Plaintiff and Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, Lawrence E. Wayte and Daniel L. Wainwright for Defendant and Respondent.
OPINION
DAWSON, J.
Appellant Janice Lingenfelter contends the superior court erred in sustaining a demurrer to her causes of action against respondent Susan Winter, M.D., a physician who treated her deceased son, Levi. Appellant asserted causes of action for defamation, infliction of emotional distress, deprivation of constitutional rights, and wrongful death based on medical malpractice.
We conclude that appellant’s pleadings failed to allege sufficient facts to state a valid cause of action. We reject appellant’s argument that a medical malpractice action brought by an adult for the wrongful death of a minor is subject to the three-year limitations period in Code of Civil Procedure section 340.5. Instead, we conclude that the one-year limitations period for adults applies to appellant’s medical malpractice claim. Also, the two-year limitations period applicable to personal injury claims applies to her other causes of action. Under these limitations periods, appellant’s claims are time-barred. Finally, appellant has not demonstrated how her pleadings could be amended to make them timely or cure other deficiencies identified by the superior court.
All subsequent statutory references are to the Code of Civil Procedure unless stated otherwise.
Therefore, the superior court did not err in sustaining the demurrer without leave to amend. The judgment will be affirmed.
FACTS AND PROCEEDINGS
Judicial Notice
Initially, we note that appellant sued Fresno County for the wrongful death of her son and other alleged wrongs in Fresno Superior Court case No. 04CECG03409. That lawsuit reached this court as Lingenfelter v. County of Fresno, No. F050021. The appeal resulted in a partially published opinion. (Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198 [remanded for further proceedings concerning appellant’s claims for infliction of emotional distress].)
By letter dated April 11, 2008, we notified the parties that we proposed to take judicial notice of the appellate record in Lingenfelter v. County of Fresno, No. F050021 and gave them an opportunity to submit comments or objections. (See Evid. Code §§ 455 & 459, subd. (c) [notice and opportunity to respond to reviewing court’s proposal regarding judicial notice].) Respondent indicated she had no objection. Appellant made no response.
As a result, on May 2, 2008, this court filed an order stating it was taking judicial notice of the appellate record in Lingenfelter v. County of Fresno, No. F050021.
Accordingly, the facts set forth in this opinion are taken from allegations made in appellant’s pleadings and her briefs as well as documents subject to our order for judicial notice.
The factual allegations in appellant’s pleadings are deemed to be true for purposes of this appeal. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [when reviewing a demurrer, facts alleged are accepted as true even if improbable].)
We interpret the assertions of fact made in appellant’s briefing and not included in her pleadings as her statement of what she could have alleged had she been given further leave to amend her complaint.
Summary of Allegations
Appellant filed her initial complaint against respondent and Jeanette Howard on September 1, 2006. Respondent was Levi’s primary care physician and made the main medical decisions regarding his care. Howard and her husband were Levi’s foster parents.
Howard and her husband were Levi’s legal guardians for 13 of the 17 years of his life. (Lingenfelter v. County of Fresno, supra, 154 Cal.App.4th at p. 202, fn. 2.) Howard is not a party to this appeal; she obtained a judgment in her favor on January 31, 2007.
The complaint alleged that Levi died while in foster care and under the medical care of respondent. Appellant asserted that respondent and Howard were responsible for his death. The complaint included claims for negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and wrongful death based on medical malpractice.
Levi was born on May 28, 1986, and died on September 15, 2003. Levi had health problems from the time of his birth. Fresno County Child Protective Service (CPS) became involved with the health care of Levi, and he was in CPS custody most of his life. Respondent was one of the doctors that CPS involved in his health care, and she became Levi’s primary care physician.
Appellant contends that respondent intentionally and maliciously abused Levi by treating him with Polycitra-K, ignored the diagnosis of another doctor that Levi suffered from pancreatitis, and fixated on her own diagnosis of Lowe Syndrome. Appellant also contends that respondent perjured herself in dependency proceedings involving Levi when respondent testified that she did not know the other doctor and was unaware of the diagnosis of pancreatitis.
Appellant alleged that (1) respondent worked and testified against appellant to deprive her of custody of Levi, (2) respondent’s action caused her custodial rights to Levi to be taken from her, and (3) the loss of custody caused her emotional distress.
Demurrers and Amended Pleadings
Respondent filed a demurrer asserting that the complaint failed to allege sufficient facts to state a cause of action, the complaint was uncertain, and the complaint was time-barred under section 340.5.
The superior court ruled on the demurrer on November 8, 2006. The superior court (1) overruled the demurrer to the extent that it relied on the statute of limitations, (2) and treated the demurrer as a motion to strike the prayer for punitive damages, and (3) granted the motion to strike.
On November 16, 2006, appellant filed an amended complaint for damages. The amended complaint alleged that respondent committed medical malpractice that caused the death of Levi. It alleged that the medicine prescribed by respondent, Polycitra-K, was harmful to Levi, and the many years of forced treatment injured him and caused his death. It also alleged respondent (1) “used a genetic label to take away personal rights [of appellant] such as freedom and consent” and (2) defamed appellant “by means of genetic labeling and humiliation .…”
Respondent filed a demurrer to the amended complaint, contending that it (1) was time-barred under section 340.5, (2) failed to state facts sufficient to constitute a cause of action regarding the deprivation of appellant’s personal rights, (3) failed to state facts sufficient to constitute a cause of action for defamation, and (4) was uncertain in its references to personal rights and defamation.
On January 30, 2007, the superior court sustained the demurrer on the grounds that appellant’s claim for wrongful death caused by medical malpractice was time-barred and she failed to adequately allege a claim for defamation or violation of constitutional rights. The superior court granted appellant leave to amend with respect to her apparent claims for defamation and violation of constitutional rights.
Appellant filed a second amended complaint on February 9, 2007. The second amended complaint alleged that appellant “made her claim January 20, 2004,” and that it was subject to an appeal to this court. The second amended complaint also alleged that appellant did know when her son died; she knew when he was buried, and she attended the funeral.
The appeal was decided six months later. (Lingenfelter v. County of Fresno, supra, 154 Cal.App.4th 198 [opn. filed Aug. 16, 2007].)
The information in these allegations from the second amended complaint can be expanded by documents included in the appellate record in case No. F050021, of which we have taken judicial notice.
Appellant’s reference to a claim made on January 20, 2004, concerns two form documents titled “CLAIM FOR DAMAGES County of Fresno” that appellant completed and filed with the County of Fresno on January 20, 2004. One of the forms asserted that appellant was damaged on September 17, 2003, by the threat of a social worker’s when she requested that the date of Levi’s funeral be changed to Saturday or the funeral be postponed so that she could make arrangements for an autopsy. The form also asserted that appellant requested an autopsy in a September 18, 2003, letter to the juvenile court.
The other form claimed appellant was damaged on September 15, 2003, when the foster parents with whom Levi resided made his funeral arrangements before appellant was notified, and appellant was not given any rights to make decisions concerning the body.
Whether appellant or Levi’s legal guardians held the right to dispose of his body presents an issue of statutory construction that has not been addressed in a published opinion. (Compare Health & Saf. Code, § 1530.6 [foster parents having legal custody of a child “may give the same legal consent for that child as a parent”] with Health & Saf. Code, § 7100 [identifies who holds the “right to control the disposition of the remains of a deceased person”] & Ross v. Forest Lawn Memorial Park (1984) 153 Cal.App.3d 988, 993-994 [right to control the remains of deceased minor vested in surviving mother under Health & Saf. Code, § 7100].)
The fact that appellant signed and filed these two claim forms demonstrates that she knew of Levi’s death no later than September 17, 2003, when she and the social worker discussed postponing the funeral.
On April 5, 2007, the superior court tentatively ruled that it would sustain respondent’s demurrer to the entire second amended complaint without leave to amend. The tentative ruling stated that appellant failed to state a claim for deprivation of her constitutional rights because she failed to allege that respondent “was ‘clothed with the authority of state law’ at the time of the incidents alleged in the complaint. [Citation.]” It also concluded that appellant had failed to adequately allege facts supporting a claim for defamation. The superior court also considered and rejected other legal theories of recovery.
On April 19, 2007, the superior court entered an order sustaining respondent’s demurrer and dismissing appellant’s case with prejudice. Notice of entry of this order was filed on April 26, 2007.
Appellant filed notices of appeal on April 2, 2007, and June 1, 2007.
DISCUSSION
I. Standard of Review
A. General Demurrers
An order sustaining a general demurrer without leave to amend is reviewed by an appellate court under the following standard:
“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
In reviewing the facts alleged to determine if a cause of action has been stated, the reviewing court also may consider all facts that are properly the subject of judicial notice. (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305; see § 430.70 [judicial notice and demurrer].)
Appellate courts affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the superior court’s stated reasons. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967.)
B. Standards for Self-representing Parties
The pleadings and motions filed by appellant in the trial court are subject to the standards generally applied by California courts in civil litigation. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284-1285 [self-representing litigants are not exempt from statutes or court rules governing procedure].)
Similarly, under the rules of procedure applied in this court, a self-representing litigant is treated like any other party and, therefore, is subject to the same rules of appellate procedure as parties represented by an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [appellant representing self on appeal must follow correct rules of procedure].)
C. General Requirements of Appellate Practice
A general principle of appellate practice is that an “order of the lower court is presumed correct.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This general principle means that (1) “‘[a]ll intendments and presumptions are indulged to support [the order] on matters as to which the record is silent’” (ibid.) and (2) the appellant must affirmatively show error occurred (ibid.). In the context of a demurrer, an appellant bears the burden of demonstrating the superior court erroneously sustained the demurrer. (Smith v. County of Kern (1993) 20 Cal.App.4th 1826, 1829-1830.)
To affirmatively show that error occurred, an “appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] … [C]onclusory claims of error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
The proper way to cite authority and facts in the record is addressed in rule 8.204(a)(1) of the California Rules of Court. That rule states that each appellate brief must “support each point by argument and, if possible, by citation of authority; and [¶] … [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Rule 8.204(a)(1)(B) & (C).)
All further references to rules are to the California Rules of Court unless stated otherwise.
II. Failure to Comply with Rule 8.204
Respondent contends that appellant’s opening brief is defective because it does not comply with the requirement of rule 8.204(a). This contention is accurate; appellant has not complied with rule 8.204.
Based on the headings in her opening brief, it appears that appellant contends she has stated claims for (1) intentional negligence, (2) medical malpractice resulting in wrongful death, (3) punitive damages, (4) negligent and intentional infliction of emotional distress, (5) wrongful death, and (6) defamation related to a hereditary disorder. The assertions of fact made in her opening brief are not supported by citations to where those facts appear in the record. In our review of the opening brief, we were unable to locate a single citation to the clerk’s transcript.
We conclude that the failure of appellant to comply with rule 8.204 and support her arguments with citations to the record provides one ground for affirming the superior court order.
Next, we will consider the six claims identified by the headings in appellant’s opening brief as well as a loss of consortium claim and her arguments for why the superior court committed reversible error.
III. General Principles Regarding Statute of Limitations
Once a plaintiff’s cause of action has accrued, the plaintiff must commence a lawsuit within the period of time specified by the applicable statute of limitations. (§ 312; see Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 (Fox).) The failure to meet this requirement causes the claim to be time-barred.
“Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’ [Citations.] An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.] [¶] 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.’ [Citations.] Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” (Fox, supra, 35 Cal.4th at pp. 806-807.)
IV. Failure to State a Cognizable Cause of Action
A. Wrongful Death Based on Medical Malpractice
Section 340.5 contains the statute of limitations applicable to claims for medical malpractice. That section provides that the action shall be commenced within three years following the date of injury or one year after the plaintiff discovers the injury, whichever first occurs. With certain exceptions, “[a]ctions by a minor shall be commenced within three years from the date of the alleged wrongful act .…” (§ 340.5.)
In the context of a wrongful death action, the injury is the wrongfully caused death. (Larcher v. Wanless (1976) 18 Cal.3d 646, 659.) Therefore the date of injury is the date of death. (Ibid.)
1. Superior court’s application of statute of limitations
The superior court took judicial notice of the complaint that appellant filed against the County of Fresno and the fact the complaint was filed on November 24, 2004. The superior court inferred that, at a minimum, appellant was aware of her son’s death since November 24, 2004, and probably since January 20, 2004. Based on the date of November 24, 2004, the superior court concluded that appellant’s claim would be time-barred if her lawsuit against respondent was not filed by at least November 24, 2005. Because the initial complaint against respondent was not filed until September 1, 2006, the superior court concluded that appellant’s wrongful death claim based on medical malpractice was time-barred.
2. Appellant’s claim of error
Appellant’s opening brief asserts that the plain language of section 340.5 gives minors at least three years to bring an action. Her brief also asserts “that the statute of limitations applicable to minors in section 340.5 governs their actions both as victims of medical malpractice and as heirs of victim adult heirs of medical malpractice victims [citation].” (Boldface omitted.) Appellant’s reply brief asserts that the “statute of limitations is three years when it comes to the case of a minor, alive or dead, not as the Respondent is trying to argue .…” (Underscoring and some capitalization omitted.)
3. Analysis
Appellant’s claim of error raises a question of statutory interpretation. Questions of statutory interpretation are questions of law subject to this court’s independent review. (Twedt v. Franklin (2003) 109 Cal.App.4th 413, 417.)
The question of statutory interpretation posed in this case is whether appellant’s wrongful death action against respondent is an “[a]ction[] by a minor” for purposes of the third sentence of section 340.5. If it is, then the three-year period for filing the action applies.
In the context of wrongful death actions, the phrase “action by a minor” has been construed to apply to a claim asserted by a minor for the wrongful death of a parent. (See Washington v. Nelson (1979) 100 Cal.App.3d 47, 53 [minor son’s claim was time-barred because minor did not make it within three years of father’s death; widow’s claim filed within one year of death was timely].) This interpretation was based on the principle that each heir holds a separate interest in the decedent’s life and suffers a separate loss by reason of the death. (Cross v. Pacific Gas & Electric Co. (1964) 60 Cal.2d 690, 692.) “Accordingly, each heir should be regarded as having a personal and separate cause of action.” (Ibid.) In Cross, the court allowed the wrongful death claims of decedent’s minor children to proceed even though the statute of limitations barred the mother’s claim. (Id. at p. 694.)
In this case, the heir asserting the wrongful death claim is appellant. Appellant is an adult, not a minor. Therefore, this lawsuit is not an “action by a minor” for purposes of section 340.5. Consequently, the three-year statute of limitations applicable to minors does not apply to appellant’s claim for wrongful death. Instead, the one-year statute of limitations applies.
The claim form appellant filed with the County of Fresno establishes that she discovered Levi’s death no later than September 17, 2003. Accordingly, the one-year statute of limitations expired on September 17, 2004, almost two years before the initial complaint against respondent was filed.
Consequently, we conclude that appellant’s wrongful death action is time-barred and the superior court correctly sustained the demurrer as to that claim.
B. Infliction of Emotional Distress
1. Appellant’s theory of recovery
Appellant’s opening brief refers to “the cause of Professional Negligence including Negligent Intentional Emotional Distress. The damage and ultimate outcome of these actions were wrongful death of Levi Lingenfelter.” Appellant’s opening brief asserts the following facts are the basis for her infliction of emotional distress claim. Levi was tortured by the regime respondent imposed, which did not treat his pancreatitis and used Polycitra-K medicine. The Polycitra-K did not allow Levi to have an appetite or to digest his food properly. When Levi died, he weighed between 80 and 90 pounds. Appellant and Levi’s “siblings had to stand by for a total of 13 years and endure this shameful treatment until the time of his death.”
2. Respondent’s contentions
Respondent contends that there is no independent tort for negligent infliction of emotional distress because it rests on the tort of negligence. Here, respondent contends that the claim for emotional distress is essentially a claim for professional negligence and that the professional negligence claim is barred by the statute of limitations.
3. Analysis
In this case, there are three separate factors that affect how the legal theory or theories of recovery for infliction of emotional distress are characterized. The first factor concerns whether the claim is based on actions of the respondent that involved providing professional health care services or involved other conduct. The second factor concerns whether appellant experienced the emotional distress based on her role as a bystander witness or as a direct victim. (See Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [“bystander witness” theory and “direct victim’ theory of infliction of emotional distress].) The third variable concerns whether the wrongful act or omission was intentional or negligent.
Regardless of how these three factors are combined, there are only two statutes of limitations that potentially apply to the claim or claims appellant is asserting.
If the claim is characterized as alleging professional negligence by respondent that resulted in the wrongful death of Levi, then the one-year statute of limitations contained in section 340.5 will apply. That type of claim, like the more general claim for medical malpractice discussed in part IV.A.3, ante, is time-barred.
Alternatively, if the claim is based on conduct other than respondent’s misdiagnosing and mistreating the medical condition of Levi, then the claim is covered by the two-year statute of limitations set forth in section 335.1. Section 335.1 provides: “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” The court in Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444 applied the two-year period set forth in section 335.1 to a claim for intentional infliction of emotional distress. (Pugliese, at p. 1450.) The reference to “neglect of another” in the statute means that it also applies to claims for negligent infliction of emotional distress.
None of the conduct attributed to respondent in appellant’s pleadings occurred during the two years preceding the filing of her initial complaint on September 1, 2006. Instead, it appears to have predated Levi’s death in September 2003. Furthermore, appellant has not demonstrated that she is capable of amending her second amended complaint to allege that any wrongful or negligent conduct by respondent that caused her emotional distress occurred during the two-year period before she filed her initial complaint.
Therefore, even under the most favorable statute of limitations period that could be applied to her claim—the two-year period of section 335.1—all of the reasonably possible variations of appellant’s claim for emotional distress are time-barred.
C. Deprivation of Constitutional Rights
Appellant’s opening brief asserts that the actions of respondent deprived Levi of his constitutionally protected rights of life and liberty. Thus, it appears that appellant is attempting to assert a claim under the federal Civil Rights Act (42 U.S.C. § 1983). Such claims may be pursued in either state or federal court. (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 173, fn. 10.)
Section 1983 of 42 United States Code provides, in pertinent part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .…”
Federal statutes provide no limitations period for civil rights claims. Therefore, the statute of limitations applicable to a state law personal injury action governs claims brought under 42 United States Code section 1983. (Wilson v. Garcia (1985) 471 U.S. 261, 270 [state law governs length of limitations period for 42 U.S.C. § 1983 claims].) As a result, California’s personal injury statute of limitations generally is applicable to claims brought under 42 United States Code section 1983. (Taylor v. Regents of Univ. of Cal. (9th Cir. 1993) 993 F.2d 710, 711.) That statute of limitations, which is set forth in section 335.1, provides for a two-year limitation period. (See 2 Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2007) ¶ 5:125, p. 5-97 [California’s two-year statute ordinarily applies to civil rights actions].)
None of the allegations in appellant’s pleadings and or the assertions in her briefing indicates that any deprivation of a constitutional right (whether the right was hers or Levi’s right to life or liberty) occurred during the two-year period prior to the filing of her initial complaint against respondent. Furthermore, the allegations in the pleadings cannot be interpreted to reasonably infer that a deprivation of a constitutional right occurred during that period.
Therefore, appellant has failed to state sufficient facts to constitute a valid cause of action for deprivation of constitutional rights and, further, has failed to demonstrate how her pleadings could be amended to state such a cause of action.
D. Intentional Negligence
Appellant’s opening brief’s uses the heading “Intentional Negligence” and the discussion under this heading does not state clearly what claim she is trying to assert. It appears to be a different label for her wrongful death claim or her constitutional rights claim.
Regardless of the nature of the claim—whether it is an intentional tort or a claim of negligence—the longest statute of limitations that could apply is the two-year statute in section 335.1.
As indicated in our earlier discussion, none of appellant’s allegations state or imply that an intentional or negligent act of respondent occurred within the two-year period preceding the filing of appellant’s initial complaint. Accordingly, appellant has failed to state a claim that is timely.
E. Loss of Consortium
The superior court interpreted appellant’s second amended complaint as attempting to set forth a claim for loss of consortium. The superior court stated that appellant could not state such a claim because, under California law, a parent cannot recover damages for loss of consortium after the death of a child. (Baxter v. Superior Court (1977) 19 Cal.3d 461, 463 [rejecting claim for damages by parents for loss of a child’s filial affection and society].)
The superior court accurately set forth California law. A parent is precluded from recovering damages for the loss of a child’s consortium. (Trear v. Sills (1999) 69 Cal.App.4th 1341, 1348, fn. 18.) Therefore, we conclude that appellant may not assert a claim for damages based on her loss of Levi’s consortium.
F. Defamation
The tort of defamation “involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Citations.]” (Ringler Associates, Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.)
When the defamatory statement is made in writing, Witkin advises that “the complaint should set the matter out verbatim, either in the body or as an attached exhibit.” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 695, p. 155.) Although appellant’s opening brief references letters written by respondent, appellant has not quoted the allegedly defamatory statements and has not attached a copy of the letters to her pleading.
In California, a one-year statute of limitations applies to claims for defamation. (§ 340, subd. (c) [actions for libel and slander].) All of appellant’s allegations regarding things respondent said or wrote relate to matters that occurred before Levi’s death. None of the allegations mentions an untruthful statement that occurred during the one-year period before the complaint was filed. Furthermore, appellant has not demonstrated that she could amend her pleading to allege an untruthful statement was made during that period.
Therefore, appellant has failed to demonstrate that the superior court committed error in concluding that she failed to state a valid claim for defamation.
G. Punitive Damages
The superior court struck the request for punitive damages in appellant’s initial complaint on the ground that a plaintiff may not include a prayer for punitive damages in a complaint for professional negligence against a health care provider “unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” (§ 425.13, subd. (a).)
Appellant’s opening brief asserts that her claim for punitive damages involves oppressive and malicious conduct related to her claims other than the professional negligence of respondent.
In parts IV.B through IV.F, ante, we concluded that appellant failed to state a valid cause of action under those other legal theories of recovery. Therefore, we must conclude that she no longer has a cause of action to support her request for punitive damages.
DISPOSITION
The judgment is affirmed. Respondent shall recover her costs on appeal.
WE CONCUR: LEVY, Acting P.J., KANE, J.