Preview
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
Ak WN
COD Mm ND
1
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
DAVID F. BEACH, ESQ. (SBN 127135)
ANNE C. D’ARCY, ESQ. (SBN 232948)
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ, LLP
438 First Street, Fourth Floor
Santa Rosa, CA 95401
Telephone: (707) 525-8800
Facsimile: (707) 545-8242
Attorney for Defendants
BEVERLY HEALTHCARE-CALIFORNIA,
INC. dba GOLDEN LIVINGCENTER —
FRESNO; BEVERLY HEALTHCARE —
CALIFORNIA, INC. dba GOLDEN
LIVINGCENTER — CLOVIS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO
JOSIE MAE BROWN, individually, CASE No. 17CECG04065
Plaintiff, Unlimited Civil Action
Assigned to Hon. Jeffrey Y. Hamilton
DEFENDANTS BEVERLY HEALTHCARE-
CALIFORNIA, INC. dba GOLDEN
LIVINGCENTER-FRESNO AND
BEVERLY HEALTHCARE-CALIFORNIA,
INC. dba GOLDEN LIVINGCENTER—
CLOVIS’ REPLY TO PLAINTIFF’S
OPPOSITION TO DEMURRER TO THE
COMPLAINT
[C.C.P.§§430.10(e); 340.5; 335.1]
Hearing: November 28, 2018
Time: 3:30 p.m.
Dept.: 501
vs.
BEVERLY HEALTHCARE-CALIFORNIA, INC.
dba GOLDEN LIVINGCENTER — FRESNO;
BEVERLY HEALTHCARE, INC. dba GOLDEN
LIVINGCENTER — CLOVIS, and DOES 1
through 200, inclusive,
Defendants.
Complaint Filed: November 27, 2017
Doe Amendment filed: April 18, 2018
Trial Date: Not Set
Eee
Note: Golden LivingCenter Fresno and Golden LivingCenter Clovis demur on the grounds
of the applicable statutes of limitation. Points not raised in moving papers but raised in opposition,
e.g., the element of ratification and the merits of the Health & Safety 1430(b) action, are not before
the court at this time and therefore are not addressed in reply.
A. Some of Plaintiff’s claims against Golden LivingCenter-Clovis and all claims
against Golden LivingCenter-Fresno are time barred on the face of the Complaint.
Only the complaint against Golden LivingCenter Clovis can be cured by
1
DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO
AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY
TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINT.PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
CU wm NDNA
in
12
13
14
15
16
17
18
19
20
2
22
23
24
25
26
27
28
amendment, provided Plaintiff’s claims are brought within the statutes of
limitation.
Golden LivingCenter Fresno’s demurrer should be sustained without leave to amend.
Plaintiff's claims against Golden LivingCenter-Fresno necessarily accrued during her residence at
that facility, which was, according to the Complaint, “before April 2013.” Plaintiff JOSIE MAE
BROWN filed her Complaint for elder abuse, Violation of Patient’s Rights (Health & Safety Code
§1430(b)) and Professional Negligence on November 27, 2017, four years and seven months after
April 2013. Plaintiff alleges: “While under the care and treatment of GLC-FRESNO, BROWN
suffered a broken leg due to the lack of care provided by GLC-FRESNO staff.” (Complaint 16)
“Tn April 2013, BROWN was transferred to GLC-CLOVIS.” (Complaint 17)
The Complaint against Golden LivingCenter-Fresno is barred on its face by the applicable
statutes of limitation as to all three causes of action, specifically Plaintiffs broken leg allegedly
incurred at Golden LivingCenter-Fresno before April 2013.
Plaintiff's claims against Golden LivingCenter-Clovis, where she resided from April 2013
until GL transferred operations in December 2016 are time-barred in part.
B. The claims for professional negligence against GLC-Fresno and GLC-Clovis are
barred on the face of the Complaint filed 11/27/17 by the applicable 1-
year/maximum 3-year statute of limitation, Code of Civil Procedure section 340.5.
Golden LivingCenter-Fresno and Golden LivingCenter-Clovis were “health facilities”
subject to MICRA and C.C.P §340.5. Plaintiff alleges she broke her leg at Golden LivingCenter-
Fresno “due to lack of care.”
Plaintiff alleges she was transferred to Golden Living Clovis in April 2013. The second
cause of action for professional negligence is barred by the 1-year/3-year outer limitations statute
of limitation for professional negligence, C.C.P. 340.5, on the face of the Complaint as to Golden
LivingCenter-Fresno and as to the initial residence at Clovis which commenced in April 2013.
Plaintiff may be granted leave to amend the Complaint provided she brings her claims against
Golden LivingCenter-Clovis only and brings them within the 1/yr/max. 3-yr.and 2/yr statues of
limitations for professional negligence, violation of patient’s rights and elder abuse in that period
2
DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO
AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY
TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINTPERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
10
11
12
13
14
15
16
17
18
19
20
21
22
3
24
25
26
27
28
of the GLC-Clovis residence prior to Golden Living’s transfer of operations in December 2016.
Code of Civil Procedure section 340.5, the special statute of limitations for professional
negligence actions against health care providers, applies only to actions alleging injury suffered
because of negligence in rendering the professional services that hospitals and others provide by
being health care professionals: that is, the provision of medical care to patients. (Flores v.
Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88:
MICRA [in 1975-1976] amended section 340.5 to shorten the outer limitations period [for
late discovery] from four years to three. It expanded the coverage of the provision to
include not only actions against medical professionals and hospitals “as ... employer [s]” of
such persons (Code Civ. Proc., former § 340.5), but also actions against “‘[h]ealth care
provider[s],”” generally, which it defined to include any licensed “clinic, health dispensary,
or health facility” (§ 340.5, subd. (1)). Finally, and as particularly relevant here, it amended
the description of covered claims, stating that the special limitations period applies to “an
action for injury or death against a health care provider based upon such person's alleged
professional negligence.” (§ 340.5.) MICRA also supplied, for the first time, a definition of
ar
the term “professional negligence”: “a negligent act or omission to act by a health care
provider in the rendering of professional services, which act or omission is the proximate
cause of a personal injury or wrongful death, provided that such services are within the
scope of services for which the provider is licensed and which are not within any restriction
imposed by the licensing agency or licensed hospital.” (§ 340.5, subd. (2).) (Flores, supra at
p. 82.
C. Code of Civil Procedure section 352 is a general tolling statute that is inapplicable
to MICRA actions governed by section 340.5 as to the maximum 3-yr. SOL.
“There is no evidence of a legislative intent ... to allow exceptions other than those listed in
section 340.5. All indications of intent are to the contrary. The legislative enumeration of certain
exceptions by necessary implication excludes all other exceptions. [Citations.]” Bennett v. Shahhal
(1999) 75 Cal.App.4th 384, 392.
Plaintiff provides no authority for the statement that “under Code of Civil Procedure §352,
Plaintiffs action is tolled up to an including Plaintiffs death, which has not occurred.” On the
contrary, the pertinent provisions of section 340.5 are:
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
[fraud, intentional concealment, or presence in the injured person of a foreign body
with no therapeutic or diagnostic purpose]” (Benun v. Superior Court (2004) 123
Cal.App.4th 113, 120.) [Emphasis added.] (See also Belton v. Bowers Ambulance Service
3
DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO
AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY
TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINTPERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
SCO Mm NIN DH BR WN HS
NY NN NY NY NY NNN BS Be Be ee ew ew ew
oN DA A BKB NH KF SO we NA DAA RF WN |
(1999) 20 Cal. 4'" 928 holds a prisoner’s time to sue a health care provider can be extended
by incarceration up to the maximum three-year period contained in Code Civ. Proc., §
340.5.
Plaintiff, Ms. Brown, has filed suit on her own behalf, but now seeks the benefits from
C.C.P. §352 tolling for insanity. Setting aside the issue of her legal incapacity to sue, which can be
easily cured by appointment of a Guardian ad litem, she may not extend the maximum 3-year
statute for professional negligence. (See Alcott Rehabilitation Hospital v. Superior Court (2001) 93
Cal.App.4th 94; [Patient’s insanity tolled one-year statute of limitations on patient’s claims against
nursing home for medical malpractice and for elder abuse and neglect, assuming claims for elder
abuse and neglect were controlled by the one-year statute applicable to health care providers, even
though a guardian ad litem was directing patient’s medical care and had power of attorney.])
Code of Civil Procedure sections 340.5 and 352 can easily be reconciled. The text of Code
of Civil Procedure section 340.5 does not expressly negate the application of the insanity
provision in Code of Civil Procedure section 352 in health care cases. Further, the purpose
of Code of Civil Procedure section 340.5 does not prohibit tolling the one-year statute of
limitations, when the plaintiff is insane. The proper interpretation of the language in the
second sentence of Code of Civil Procedure section 340.5 and the only reasonable
application of the rationale of Belton, compels tolling of the one-year limitation period
under Code of Civil Procedure section 352 when a plaintiff is insane. (Alcott Id., at
p.103-104.)
“[N]o tolling provisions outside of MICRA can extend the three-year maximum time period
that section 340.5 establishes.” (Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928, 931.)
The action must be filed within the maximum 3-year statute of section 340.5.
According to the Complaint, Ms. Brown broke her leg at Golden LivingCenter-Fresno
before she was transferred to Golden LivingCenter-Clovis in April 2013. The Complaint, filed
November 27, 2017, was filed more than four years after Ms. Brown broke her leg at Golden
LivingCenter-Fresno and more than four years after April 2013, when Ms. Brown was transferred
to Golden LivingCenter-Clovis.
“The defense of statute of limitations may be asserted by general demurrer if the complaint
shows on its face that the statute bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007)
153 Cal.App.4th 1308, 1315.) “The application of the statute of limitations on undisputed facts is a
purely legal question.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.)
In ruling on a demurrer on statute of limitation grounds:
4
DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO
AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY
TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINTPERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
SCO m NIN DH BF Ww NY
NN NN NY NY NN KY BS Bee ee ewe ewe ew
eo I~DA BH NH =F SO wM I DAA KR WN EG
(1)[T]rial and appellate courts treat the demurrer as admitting all material facts properly
pleaded and (2) resolution of the statute of limitations issue can involve questions of fact.
Furthermore, when the relevant facts are not clear such that the cause of action might be,
but is not necessarily, time-barred, the demurrer will be overruled. Thus, for a demurrer
based on the statute of limitations to be sustained, the untimeliness of the lawsuit must
clearly and affirmatively appear on the face of the complaint and matters judicially
noticed.” (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420, 147
Cal.Rptr.3d 141, fns. omitted; § 430.30, subd. (a).) 21 Cal.App.5th 577. (Austin v, Medicis
(2018) 21 Cal.App.5th 577, 585.
“[W]henever reasonable minds can draw only one conclusion from the evidence, the
question becomes one of law.” (Snow vy. A.H. Robins Co. (1985) 165 Cal.App.3d 120, 128.)
Plaintiffs Complaint is barred on its face as to Defendant Golden LivingCenter-Fresno and the
initial residence at Golden LivingCenter-Clovis which according the Complaint occurred in April
2013, more than four years before the Complaint was filed. Plaintiff has had since at least
December 2017 to amend the Complaint, to bring her claims against Golden LivingCenter-Clovis
for that portion of the residence not barred by the statutes of limitation but has not done so. Rather,
she filed a Doe Amendment in April 2018 to bring in the new operator of the Clovis facility as a
defendant. The claims against Golden LivingCenter-Fresno are barred on the face of the Complaint
filed 11/27/17 by the applicable maximum 3-year statute of limitation, Code of Civil Procedure
section 340.5 and the 2-year statute of limitation for elder abuse, C.C.P. 335.1.
D. The statute of limitation for elder abuse and Violation of Patient Rights
The statute of limitations applicable to elder abuse is two years from the date the injury was
discovered. (Code Civ. Proc. § 335.1; Benun v. Superior Court (2004) 123 Cal.App.4th 113, 125-
127.)
Plaintiff provides no authority for the statement that “under Code of Civil Procedure §352,
Plaintiffs action is tolled up to an including Plaintiffs death, which has not occurred.” We find no
case law that permitted an elder abuse action by a living or deceased elder with dementia brought
more than three years after the defendant’s care was provided. That would allow any person who
suffers from dementia to be relieved of the statutes of limitation.
Plaintiff alleges: “While under the care and treatment of GLC-FRESNO, BROWN suffered
a broken leg due to the lack of care provided by GLC-FRESNO staff.” (Complaint 16) “In April
5
DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO
AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY
TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINT.PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ LLP
CO Mm RN DH BRB WN
YN RYN HNN DN DN &* BB Bw eB es ew ew Be
co DAA BBN F SO we NY DAHA RF WN
2013, BROWN was transferred to GLC-CLOVIS.” (Complaint 417)
The Complaint, filed November 27, 2017, is barred on its face as to the broken leg at
Golden LivingCenter-Fresno, which occurred before Plaintiff transferred to Golden LivingCenter-
Clovis in April 2013.
The Complaint, filed November 27, 2017, is barred on its face as to the broken leg at
Golden LivingCenter-Fresno, which occurred before Plaintiff transferred to Golden LivingCenter-
Clovis in April 2013 and more than four years before the Complaint was filed in November 2017.
Golden LivingCenter-Fresno’s demurrer should be sustained without leave to amend.
Golden LivingCenter-Clovis’s demurrer should be sustained; and if leave is granted,
Plaintiff should be required to bring her claims within the statutes of limitation and for that period
of the residence prior to transfer of operations in December 2016.
PERRY, JOHNSON, ANDERSON,
MILLER & MOSKOWITZ, LLP.
LOM,
(AVID F. BEACH
ANNE C, D’ARCY
Attorney for Defendants
BEVERLY HEALTHCARE-CALIFORNIA,
INC. dba GOLDEN LIVINGCENTER-
FRESNO and BEVERLY HEALTHCARE-
CALIFORNIA, INC. dba GOLDEN
LIVINGCENTER-CLOVIS
Dated: November 19, 2018
By:
6
DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO.
AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY
TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINTPROOF OF SERVICE
JOSIE MAE BROWN, individually v. BEVERLY HEALTHCARE — CALIFORNIA, INC. dba
GOLDEN LIVINGCENTER — FRESNO; BEVERLY HEALTHCARE — CALIFORNIA, INC. dba
GOLDEN LIVINGCENTER — CLOVIS, and DOES 1 through 200, inclusive
Fresno County Superior Court Case No. 17CECG04065
STATE OF CALIFORNIA, COUNTY OF SONOMA
I, the undersigned declare:
lam over the age of eighteen (18) years and not a party to the within action. I am an
employee of Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s and my address is 438 First
Street, 4"" Floor, Santa Rosa, California 95401, which is located in the County of Sonoma.
On the date below indicated, I served on the interested parties in this action the within
documents described as:
e DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN
LIVINGCENTER-FRESNO AND BEVERLY HEALTHCARE-CALIFORNIA, INC.
dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY TO PLAINTIFF’S
OPPOSITION TO DEMURRER TO THE COMPLAINT
X_ (BY OVERNIGHT DELIVERY) On November 19, 2018 I caused each envelope, with
delivery fees provided for, to be deposited in a box regularly maintained by UPS or Federal
Express. I am readily familiar with Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s
practice for collection and processing of correspondence for overnight delivery and know
that in the ordinary course of Perry, Johnson, Anderson, Miller,& Moskowitz, LLP’s
business practice the document(s) described above will be deposited in a box or other
facility regularly maintained by UPS or Federal Express or delivered to an authorized
courier or driver authorized by UPS or Federal Express to receive documents on the same
date that it is placed at Perry, Johnson, Anderson, Miller, & Moskowitz, LLP for
collection.
PLAINTIFF’S COUNSEL COUNSEL FOR DYCORA
Steven C, Peck TRANSITIONAL HEALTH - CLOVIS LLC
Adam J. Peck dba DYCORA TRANSITIONAL HEALTH
PECK LAW GROUP, APC & LIVING —- CLOVIS
6454 Van Nuys Boulevard, Suite 150 Bryan R. Reid
Van Nuys, CA 91401-1407 James E. Yee
Farbod Faizai
LEWIS BRISBOIS BISGAARD & SMITH
LLP
650 East Hospitality Lane, Suite 600
San Bernardino, CA 92408
I declare under penalty of perjury under the laws of the State of California that the above is
true and correct, and that this declaration was executed on November 19, 2018 at Santa Rosa,
California.
Lourie Rebizzo
1
PROOF OF SERVICE
Preview
PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP Ak WN COD Mm ND 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DAVID F. BEACH, ESQ. (SBN 127135) ANNE C. D’ARCY, ESQ. (SBN 232948) PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ, LLP 438 First Street, Fourth Floor Santa Rosa, CA 95401 Telephone: (707) 525-8800 Facsimile: (707) 545-8242 Attorney for Defendants BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER — FRESNO; BEVERLY HEALTHCARE — CALIFORNIA, INC. dba GOLDEN LIVINGCENTER — CLOVIS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO JOSIE MAE BROWN, individually, CASE No. 17CECG04065 Plaintiff, Unlimited Civil Action Assigned to Hon. Jeffrey Y. Hamilton DEFENDANTS BEVERLY HEALTHCARE- CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER— CLOVIS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINT [C.C.P.§§430.10(e); 340.5; 335.1] Hearing: November 28, 2018 Time: 3:30 p.m. Dept.: 501 vs. BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER — FRESNO; BEVERLY HEALTHCARE, INC. dba GOLDEN LIVINGCENTER — CLOVIS, and DOES 1 through 200, inclusive, Defendants. Complaint Filed: November 27, 2017 Doe Amendment filed: April 18, 2018 Trial Date: Not Set Eee Note: Golden LivingCenter Fresno and Golden LivingCenter Clovis demur on the grounds of the applicable statutes of limitation. Points not raised in moving papers but raised in opposition, e.g., the element of ratification and the merits of the Health & Safety 1430(b) action, are not before the court at this time and therefore are not addressed in reply. A. Some of Plaintiff’s claims against Golden LivingCenter-Clovis and all claims against Golden LivingCenter-Fresno are time barred on the face of the Complaint. Only the complaint against Golden LivingCenter Clovis can be cured by 1 DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINT.PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP CU wm NDNA in 12 13 14 15 16 17 18 19 20 2 22 23 24 25 26 27 28 amendment, provided Plaintiff’s claims are brought within the statutes of limitation. Golden LivingCenter Fresno’s demurrer should be sustained without leave to amend. Plaintiff's claims against Golden LivingCenter-Fresno necessarily accrued during her residence at that facility, which was, according to the Complaint, “before April 2013.” Plaintiff JOSIE MAE BROWN filed her Complaint for elder abuse, Violation of Patient’s Rights (Health & Safety Code §1430(b)) and Professional Negligence on November 27, 2017, four years and seven months after April 2013. Plaintiff alleges: “While under the care and treatment of GLC-FRESNO, BROWN suffered a broken leg due to the lack of care provided by GLC-FRESNO staff.” (Complaint 16) “Tn April 2013, BROWN was transferred to GLC-CLOVIS.” (Complaint 17) The Complaint against Golden LivingCenter-Fresno is barred on its face by the applicable statutes of limitation as to all three causes of action, specifically Plaintiffs broken leg allegedly incurred at Golden LivingCenter-Fresno before April 2013. Plaintiff's claims against Golden LivingCenter-Clovis, where she resided from April 2013 until GL transferred operations in December 2016 are time-barred in part. B. The claims for professional negligence against GLC-Fresno and GLC-Clovis are barred on the face of the Complaint filed 11/27/17 by the applicable 1- year/maximum 3-year statute of limitation, Code of Civil Procedure section 340.5. Golden LivingCenter-Fresno and Golden LivingCenter-Clovis were “health facilities” subject to MICRA and C.C.P §340.5. Plaintiff alleges she broke her leg at Golden LivingCenter- Fresno “due to lack of care.” Plaintiff alleges she was transferred to Golden Living Clovis in April 2013. The second cause of action for professional negligence is barred by the 1-year/3-year outer limitations statute of limitation for professional negligence, C.C.P. 340.5, on the face of the Complaint as to Golden LivingCenter-Fresno and as to the initial residence at Clovis which commenced in April 2013. Plaintiff may be granted leave to amend the Complaint provided she brings her claims against Golden LivingCenter-Clovis only and brings them within the 1/yr/max. 3-yr.and 2/yr statues of limitations for professional negligence, violation of patient’s rights and elder abuse in that period 2 DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINTPERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 3 24 25 26 27 28 of the GLC-Clovis residence prior to Golden Living’s transfer of operations in December 2016. Code of Civil Procedure section 340.5, the special statute of limitations for professional negligence actions against health care providers, applies only to actions alleging injury suffered because of negligence in rendering the professional services that hospitals and others provide by being health care professionals: that is, the provision of medical care to patients. (Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88: MICRA [in 1975-1976] amended section 340.5 to shorten the outer limitations period [for late discovery] from four years to three. It expanded the coverage of the provision to include not only actions against medical professionals and hospitals “as ... employer [s]” of such persons (Code Civ. Proc., former § 340.5), but also actions against “‘[h]ealth care provider[s],”” generally, which it defined to include any licensed “clinic, health dispensary, or health facility” (§ 340.5, subd. (1)). Finally, and as particularly relevant here, it amended the description of covered claims, stating that the special limitations period applies to “an action for injury or death against a health care provider based upon such person's alleged professional negligence.” (§ 340.5.) MICRA also supplied, for the first time, a definition of ar the term “professional negligence”: “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (§ 340.5, subd. (2).) (Flores, supra at p. 82. C. Code of Civil Procedure section 352 is a general tolling statute that is inapplicable to MICRA actions governed by section 340.5 as to the maximum 3-yr. SOL. “There is no evidence of a legislative intent ... to allow exceptions other than those listed in section 340.5. All indications of intent are to the contrary. The legislative enumeration of certain exceptions by necessary implication excludes all other exceptions. [Citations.]” Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 392. Plaintiff provides no authority for the statement that “under Code of Civil Procedure §352, Plaintiffs action is tolled up to an including Plaintiffs death, which has not occurred.” On the contrary, the pertinent provisions of section 340.5 are: 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 [fraud, intentional concealment, or presence in the injured person of a foreign body with no therapeutic or diagnostic purpose]” (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 120.) [Emphasis added.] (See also Belton v. Bowers Ambulance Service 3 DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINTPERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP SCO Mm NIN DH BR WN HS NY NN NY NY NY NNN BS Be Be ee ew ew ew oN DA A BKB NH KF SO we NA DAA RF WN | (1999) 20 Cal. 4'" 928 holds a prisoner’s time to sue a health care provider can be extended by incarceration up to the maximum three-year period contained in Code Civ. Proc., § 340.5. Plaintiff, Ms. Brown, has filed suit on her own behalf, but now seeks the benefits from C.C.P. §352 tolling for insanity. Setting aside the issue of her legal incapacity to sue, which can be easily cured by appointment of a Guardian ad litem, she may not extend the maximum 3-year statute for professional negligence. (See Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94; [Patient’s insanity tolled one-year statute of limitations on patient’s claims against nursing home for medical malpractice and for elder abuse and neglect, assuming claims for elder abuse and neglect were controlled by the one-year statute applicable to health care providers, even though a guardian ad litem was directing patient’s medical care and had power of attorney.]) Code of Civil Procedure sections 340.5 and 352 can easily be reconciled. The text of Code of Civil Procedure section 340.5 does not expressly negate the application of the insanity provision in Code of Civil Procedure section 352 in health care cases. Further, the purpose of Code of Civil Procedure section 340.5 does not prohibit tolling the one-year statute of limitations, when the plaintiff is insane. The proper interpretation of the language in the second sentence of Code of Civil Procedure section 340.5 and the only reasonable application of the rationale of Belton, compels tolling of the one-year limitation period under Code of Civil Procedure section 352 when a plaintiff is insane. (Alcott Id., at p.103-104.) “[N]o tolling provisions outside of MICRA can extend the three-year maximum time period that section 340.5 establishes.” (Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928, 931.) The action must be filed within the maximum 3-year statute of section 340.5. According to the Complaint, Ms. Brown broke her leg at Golden LivingCenter-Fresno before she was transferred to Golden LivingCenter-Clovis in April 2013. The Complaint, filed November 27, 2017, was filed more than four years after Ms. Brown broke her leg at Golden LivingCenter-Fresno and more than four years after April 2013, when Ms. Brown was transferred to Golden LivingCenter-Clovis. “The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) “The application of the statute of limitations on undisputed facts is a purely legal question.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) In ruling on a demurrer on statute of limitation grounds: 4 DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINTPERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP SCO m NIN DH BF Ww NY NN NN NY NY NN KY BS Bee ee ewe ewe ew eo I~DA BH NH =F SO wM I DAA KR WN EG (1)[T]rial and appellate courts treat the demurrer as admitting all material facts properly pleaded and (2) resolution of the statute of limitations issue can involve questions of fact. Furthermore, when the relevant facts are not clear such that the cause of action might be, but is not necessarily, time-barred, the demurrer will be overruled. Thus, for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed.” (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420, 147 Cal.Rptr.3d 141, fns. omitted; § 430.30, subd. (a).) 21 Cal.App.5th 577. (Austin v, Medicis (2018) 21 Cal.App.5th 577, 585. “[W]henever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law.” (Snow vy. A.H. Robins Co. (1985) 165 Cal.App.3d 120, 128.) Plaintiffs Complaint is barred on its face as to Defendant Golden LivingCenter-Fresno and the initial residence at Golden LivingCenter-Clovis which according the Complaint occurred in April 2013, more than four years before the Complaint was filed. Plaintiff has had since at least December 2017 to amend the Complaint, to bring her claims against Golden LivingCenter-Clovis for that portion of the residence not barred by the statutes of limitation but has not done so. Rather, she filed a Doe Amendment in April 2018 to bring in the new operator of the Clovis facility as a defendant. The claims against Golden LivingCenter-Fresno are barred on the face of the Complaint filed 11/27/17 by the applicable maximum 3-year statute of limitation, Code of Civil Procedure section 340.5 and the 2-year statute of limitation for elder abuse, C.C.P. 335.1. D. The statute of limitation for elder abuse and Violation of Patient Rights The statute of limitations applicable to elder abuse is two years from the date the injury was discovered. (Code Civ. Proc. § 335.1; Benun v. Superior Court (2004) 123 Cal.App.4th 113, 125- 127.) Plaintiff provides no authority for the statement that “under Code of Civil Procedure §352, Plaintiffs action is tolled up to an including Plaintiffs death, which has not occurred.” We find no case law that permitted an elder abuse action by a living or deceased elder with dementia brought more than three years after the defendant’s care was provided. That would allow any person who suffers from dementia to be relieved of the statutes of limitation. Plaintiff alleges: “While under the care and treatment of GLC-FRESNO, BROWN suffered a broken leg due to the lack of care provided by GLC-FRESNO staff.” (Complaint 16) “In April 5 DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINT.PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ LLP CO Mm RN DH BRB WN YN RYN HNN DN DN &* BB Bw eB es ew ew Be co DAA BBN F SO we NY DAHA RF WN 2013, BROWN was transferred to GLC-CLOVIS.” (Complaint 417) The Complaint, filed November 27, 2017, is barred on its face as to the broken leg at Golden LivingCenter-Fresno, which occurred before Plaintiff transferred to Golden LivingCenter- Clovis in April 2013. The Complaint, filed November 27, 2017, is barred on its face as to the broken leg at Golden LivingCenter-Fresno, which occurred before Plaintiff transferred to Golden LivingCenter- Clovis in April 2013 and more than four years before the Complaint was filed in November 2017. Golden LivingCenter-Fresno’s demurrer should be sustained without leave to amend. Golden LivingCenter-Clovis’s demurrer should be sustained; and if leave is granted, Plaintiff should be required to bring her claims within the statutes of limitation and for that period of the residence prior to transfer of operations in December 2016. PERRY, JOHNSON, ANDERSON, MILLER & MOSKOWITZ, LLP. LOM, (AVID F. BEACH ANNE C, D’ARCY Attorney for Defendants BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER- FRESNO and BEVERLY HEALTHCARE- CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS Dated: November 19, 2018 By: 6 DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO. AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINTPROOF OF SERVICE JOSIE MAE BROWN, individually v. BEVERLY HEALTHCARE — CALIFORNIA, INC. dba GOLDEN LIVINGCENTER — FRESNO; BEVERLY HEALTHCARE — CALIFORNIA, INC. dba GOLDEN LIVINGCENTER — CLOVIS, and DOES 1 through 200, inclusive Fresno County Superior Court Case No. 17CECG04065 STATE OF CALIFORNIA, COUNTY OF SONOMA I, the undersigned declare: lam over the age of eighteen (18) years and not a party to the within action. I am an employee of Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s and my address is 438 First Street, 4"" Floor, Santa Rosa, California 95401, which is located in the County of Sonoma. On the date below indicated, I served on the interested parties in this action the within documents described as: e DEFENDANTS BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-FRESNO AND BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER-CLOVIS’ REPLY TO PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINT X_ (BY OVERNIGHT DELIVERY) On November 19, 2018 I caused each envelope, with delivery fees provided for, to be deposited in a box regularly maintained by UPS or Federal Express. I am readily familiar with Perry, Johnson, Anderson, Miller, & Moskowitz, LLP’s practice for collection and processing of correspondence for overnight delivery and know that in the ordinary course of Perry, Johnson, Anderson, Miller,& Moskowitz, LLP’s business practice the document(s) described above will be deposited in a box or other facility regularly maintained by UPS or Federal Express or delivered to an authorized courier or driver authorized by UPS or Federal Express to receive documents on the same date that it is placed at Perry, Johnson, Anderson, Miller, & Moskowitz, LLP for collection. PLAINTIFF’S COUNSEL COUNSEL FOR DYCORA Steven C, Peck TRANSITIONAL HEALTH - CLOVIS LLC Adam J. Peck dba DYCORA TRANSITIONAL HEALTH PECK LAW GROUP, APC & LIVING —- CLOVIS 6454 Van Nuys Boulevard, Suite 150 Bryan R. Reid Van Nuys, CA 91401-1407 James E. Yee Farbod Faizai LEWIS BRISBOIS BISGAARD & SMITH LLP 650 East Hospitality Lane, Suite 600 San Bernardino, CA 92408 I declare under penalty of perjury under the laws of the State of California that the above is true and correct, and that this declaration was executed on November 19, 2018 at Santa Rosa, California. Lourie Rebizzo 1 PROOF OF SERVICE