Preview
E-FILED
1 DAVID F. BEACH, ESQ. (SBN 127135)
OSCAR A. PARDO, ESQ (SBN 249955) 10/8/2019 3:25 PM
2 PERRY, JOHNSON, ANDERSON, Superior Court of California
MILLER & MOSKOWITZ, LLP County of Fresno
3 438 First Street, Fourth Floor By: M. Douangkham, Deputy
Santa Rosa, CA 95401
4 Telephone: (707) 525-8800
Facsimile: (707) 545-8242
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Attorney for Defendants
6 BEVERLY HEALTHCARE-CALIFORNIA, INC. dba
GOLDEN LIVINGCENTER – FRESNO; BEVERLY
7 HEALTHCARE – CALIFORNIA, INC. dba GOLDEN
LIVINGCENTER – CLOVIS
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11 JOSIE MAE BROWN, individually, ) CASE No. 17CECG04065
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PERRY, JOHNSON, ANDERSON,
12 Plaintiff, ) Unlimited Civil Action
MILLER & MOSKOWITZ LLP
) Assigned to Hon. Jeffrey Y. Hamilton
13 vs. )
) DEFENDANTS’ MEMORANDUM OF
14 BEVERLY HEALTHCARE-CALIFORNIA, ) POINTS AND AUTHORITIES IN
INC. dba GOLDEN LIVINGCENTER – ) SUPPORT OF MOTION FOR SUMMARY
15 FRESNO; BEVERLY HEALTHCARE, INC. dba ) JUDGMENT OR, IN THE ALTERNATIVE,
GOLDEN LIVINGCENTER – CLOVIS, and ) SUMMARY ADJUDICATION OF ISSUES
16 DOES 1 through 200, inclusive, )
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17 Defendants. ) Complaint Filed: November 27, 2017
) Trial Date: January 27, 2020
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) Date: January 7, 2020
19 ) Time: 3:30 p.m.
) Dept.: 501
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 TABLE OF CONTENTS
2 I. INTRODUCTION ........................................................................................................................... 1
3 II. STATEMENT OF FACTS............................................................................................................. 2
4 III. LEGAL AUTHORITY & ANALYSIS ........................................................................................ 3
5 A. Procedural Authority For A Motion for Summary Judgment/Summary Adjudication
6 ..................................................................................................................................... 3
7 B. Plaintiff Does Not Have The Capacity To Sue Pursuant to C.C.P. §352 & §372 ...... 4
8 C. Plaintiff’s Elder Abuse, Professional Negligence, and Violation of Resident Rights
9 Claims are Barred by the Applicable Statutes of Limitations – C.C.P. §340.5 and
10 §335.1.......................................................................................................................... 6
11 1. Factual Framework ......................................................................................... 6
PERRY, JOHNSON, ANDERSON,
12 2. Statute of Limitations on Professional Negligence (C.C. §340.5).................. 7
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13 3. Statute of Limitations for Elder Abuse and Violation of Patient Rights ...... 10
14 D. Plaintiff’s Claims Have No Merit ............................................................................. 11
15 1. Plaintiff’s Professional Negligence Claims Is Without Merit ...................... 11
16 2. Plaintiff’s Elder Abuse Claim Is Without Merit ........................................... 12
17 3. Plaintiff’s Violation of Residents’ Right Is Without Merit. ......................... 14
18 IV. CONCLUSION........................................................................................................................... 15
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 TABLE OF AUTHORITIES
2 Cases
3 Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 103-104 ..................... 10
4 ARA Living Centers - Pacific, Inc. v. Superior Court, 18 Cal. App. 4th 1556, 1563-1564 ........ 11, 15
5 Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 ............................................ 7
6 Benun v. Superior Court (2004) 123 Cal.App.4th 113, 125-127 ...................................................... 12
7 Berkley v. Dowds, 152 Cal. App. 4th 518 ......................................................................................... 12
8 Delaney v. Baker (1999) 20 Cal.4th 23, 31-32 ................................................................................. 15
9 Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88 ....................................... 8
10 Fogarty v. Superior Court (1981) 117 Cal.App.3d 316 ............................................................. 10, 11
11 J.W. v. Sup.Ct. (1993) 17 CA4th 958, 965.......................................................................................... 5
PERRY, JOHNSON, ANDERSON,
12 Jambazian v. Borden 25 Cal. App. 4th 836, 849 ............................................................................... 13
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13 Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396,402-403 ................................... 13
14 Landeros v. Flood (1976) 17 Cal.3d 399, 400 .................................................................................. 13
15 Mack v. Soung (2000) 80 Cal.App.4th 966, 97................................................................................. 15
16 Marsh v. Edwards Theatres Circuit, Inc. (1976) 54 Cal.App. 3d 881, 891...................................... 11
17 Mossanen v. Monfared (2000) 77 CA4th 1402, 1410 ........................................................................ 5
18 People Ex Rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129,135, 92 Cal.Rptr. 828 .................... 11
19 Reich v. Yow (1967) 249 C.A.2d 12, 14............................................................................................ 13
20 Romak Iron Works v. Prudential Ins. Co. (1980) 104 C.A.3d 767................................................... 12
21 Snow v. A.H. Robins Co. (1985) 165 Cal.App.3d 120, 128 ................................................................ 7
22 White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.................................................................. 16
23 Statutes
24 Bus. & Prof. Code §6125 .................................................................................................................... 5
25 Civil Code section 3294 .............................................................................................................. 15, 16
26 Code Civ. Proc. §1714.8 ................................................................................................................... 14
27 Code Civ. Proc. §335.1 ............................................................................................................. 1, 7, 12
28 Code Civ. Proc. §340.5 .............................................................................................................. passim
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 Code Civ. Proc. §352
2 2.............................................................................................................................................. passim
3 Code Civ. Proc. §372 .......................................................................................................................... 5
4 Code Civ. Proc. §430.80 ..................................................................................................................... 6
5 Code Civ. Proc. §437 ...................................................................................................................... 3, 4
6 Health & Safety Code §1430 .............................................................................................. 1, 2, 12, 17
7 Welfare and Institutions Code §15600 ............................................................................................. 14
8 Welfare and Institutions Code §15657 ............................................................................................. 15
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 Defendants BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN
2 LIVINGCENTER – FRESNO and BEVERLY HEALTHCARE – CALIFORNIA, INC. dba
3 GOLDEN LIVINGCENTER – CLOVIS (hereinafter “Defendants” or “Golden Living”) hereby
4 submit the following memorandum of points and authorities in support of their motion for
5 summary judgment or, in the alternative, summary adjudication of issues as to all causes of action
6 asserted by Plaintiff JOSIE MAE BROWN.
7 I.
8 INTRODUCTION
9 Plaintiff JOSIE MAE BROWN filed her Complaint for Damages on November 27, 2017
10 and personally served the Golden Living Defendants on December 7, 2017. Her complaint alleges
11 Elder Abuse, Violation of Patient’s Rights (Health & Safety Code §1430(b)) and Professional
PERRY, JOHNSON, ANDERSON,
12 Negligence arising from Ms. Brown’s time at two facilities operated by the Golden Living
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13 Defendants. Defendants ceased their respective operations of Golden LivingCenter-Fresno and
14 Golden LivingCenter-Clovis on December 16, 2016. Plaintiff’s sole factual basis in asserting the
15 claims against the Golden Living Defendants arise from an alleged “unwitnessed” fall she had on
16 March 8, 2013 at the GL-Fresno facility. She has made no specific claims against Golden
17 LivingCenter-Clovis.
18 The following motion for summary judgment, or in the alternative summary adjudication, is
19 based on the following arguments:
20 First, pursuant to California Code of Civil Procedure §352, Plaintiff does not have the
21 capacity to sue; and
22 Second, Plaintiff’s claims for elder abuse, professional negligence, and violation of
23 residents’ rights (Health & Safety Code §1430(b)) are barred by the applicable statutes
24 of limitations, C.C.P. §340.5 and §335.1; and
25 Third, Plaintiff’s claims have no merit as there are no triable issues of material facts
26 which Plaintiff can present against the Golden Living Defendants.
27 Absent the necessary material facts or cures for the procedural defects identified above, the
28 Golden Living Defendants are entitled to judgment as a matter of law, or at minimum, to summary
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 adjudication on the respective claims.
2 II.
3 STATEMENT OF FACTS
4 Plaintiff’s primary allegation against the Golden Living Defendants is the following:
5 “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.”
6 (Undisputed Material Fact “UMF” 1).
7 Later, “[I]n April 2013, BROWN was transferred to GLC-CLOVIS.” (UMF 2). On
8 December 16, 2016, the Golden Living Defendants ceased their respective operations of Golden
9 LivingCenter-Fresno and Golden LivingCenter-Clovis and turned the care duties over to new
10 operators, Defendants Dycora Transitional Health-Clovis LLC and Dycora Transitional Health-
11 Fresno LLC. (UMF 3). Plaintiff continued residing at the Dycora Fresno facility for an
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12 undetermined amount of time and is alleging other care issues against the Dycora defendant.
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13 Plaintiff filed her Complaint on November 27, 2017. (UMF 4). Her complaint alleges
14 Elder Abuse, Violation of Patient’s Rights (Health & Safety Code §1430(b)) and Professional
15 Negligence against the Golden Living Defendants and other defendants. (UMF 5). However,
16 Plaintiff’s sole basis in asserting liability against the Golden Living Defendants arises exclusively
17 from an alleged “unwitnessed” fall she had on March 8, 2013 at the Golden LivingCenter-Fresno
18 facility. (UMF 1).
19 First, Plaintiff and her prior counsel have been free to conduct discovery and secure
20 information and documents to assist in establishing her claims against the Golden Living
21 Defendants. (UMF 6). However, Plaintiff has conducted no discovery to date. With an impending
22 January 27, 2020 trial date, Plaintiff has thus far secured no evidence to support any of the
23 allegations raised against the Golding Living Defendants. (UMF 7).
24 Secondly, Plaintiff has continuously argued that pursuant to California Code of Civil
25 Procedure “C.C.P.” §352, she lacks “the legal capacity to make decisions.” (UMF 8). In denying
26 the Golden Living Defendants’ demurrer, the Court acknowledged and accepted Plaintiff’s
27 proposition in stating:
28 “Plaintiff has alleged that she was unable to communicate and was insane for
the purposes of section 352, which is essentially the same as alleging that she
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
lacked the legal capacity to make decisions such as filing a lawsuit.”
1 (Emphasis added) (UMF 9)
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The Golden Living Defendants answered the Complaint and continued to assert the
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affirmative defense that Plaintiff lacks the capacity to sue. (UMF 10). Throughout this case,
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Plaintiff has never designated a conservator or guardian ad litem to legally represent her person
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given the C.C.P. §352 designation. (UMF 1 and 11). On September 26, 2019, the Court granted
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Plaintiff’s counsel’s Motion to Withdraw. (UMF 12). Plaintiff is now self-represented, has an
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established C.C.P. §352 designation, and is without a conservator, guardian ad litem, or legal
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counsel. (UMF 13). These facts are sufficient to establish Plaintiff’s legal inability to continue
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prosecuting her claims.
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Finally, the Golden Living Defendants again challenge the legal sufficiency of the
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Complaint, as it is clearly barred by the applicable statutes of limitation as to all three causes of
PERRY, JOHNSON, ANDERSON,
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action. Plaintiff alleges that on March 8, 2013, she suffered an “unwitnessed” fall that resulted in a
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broken leg at GLC-FRESNO. Plaintiff makes no care allegations as to her time at GLC-CLOVIS.
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The GLC-FRESNO incident occurred more than four years before the Complaint was filed.
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Therefore, Plaintiff’s claims against the Golden Living Defendants are time-barred under C.C.P.
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§340.5. California case law also conclusively establishes that C.C.P. §352 does not toll any statute
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of limitations period for a professional negligence claim under C.C.P. §340.5.
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III.
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LEGAL AUTHORITY & ANALYSIS
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A. Procedural Authority For A Motion for Summary Judgment/Summary Adjudication
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The procedural authority for a summary judgment motion is prescribed by C.C.P. §437c
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and provides in pertinent part:
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(a) (1) A party may move for summary judgment in an action or proceeding if it
24 is contended that the action has no merit or that there is no defense to the action
or proceeding. The motion may be made at any time after 60 days have elapsed
25 since the general appearance in the action or proceeding of each party against
whom the motion is directed or at any earlier time after the general appearance
26 that the court, with or without notice and upon good cause shown, may direct.
27 (c) The motion for summary judgment shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that the
28 moving party is entitled to a judgment as a matter of law.”
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 Additionally, a motion for summary adjudication can be made “as to one or more causes of
2 action within an action, . . . [or] one or more claims for damages . . . if that party contends that the
3 cause of action has no merit . . .or that there is no merit to a claim for damages, as specified in
4 Section 3294 of the Civil Code . . . A motion for summary adjudication shall be granted only if it
5 completely disposes of a cause of action . . . [or] a claim for damages.” C.C.P. 437c(f)(1). A
6 motion for summary adjudication may be made by itself or as an alternative to a motion for
7 summary judgment. C.C.P. 437c(f)(2).
8 The moving party’s burden on a motion for summary judgment is only to negate the
9 existence of triable issues of fact in a fashion that entitles him to judgment on the issue raised by
10 the pleadings; he is not required to refute liability on some theoretical possibility not including in
11 the pleadings. Waschek v. Department of Motor Vehicles (1997) 59 Cal.App. 4th 640, 644. “The
PERRY, JOHNSON, ANDERSON,
12 purpose of the summary judgment procedure is to penetrate through evasive language and adept
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13 pleading and ascertain the existence or absence of trial issues of fact.” Chern v. Bank of America
14 (1976) 15 Cal.3d 866, 873).
15 “A trial court properly grants summary judgment where no triable issue of material fact
16 exists and the moving party is entitled to judgment as a matter of law.” Merrill v. Navegar, Inc.
17 (2001) 26 Cal.4th 465, 476. “[I]n moving for summary judgment, a ‘defendant ...has met’ his
18 ‘burden ...if’ he ‘has shown that one or more elements of the cause of action ...cannot be
19 established, or that there is a complete defense to that cause of action. Once the defendant ... has
20 met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more
21 material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield
22 Co. (2001) 25 Cal.4th 826, 849.
23 B. Plaintiff Does Not Have The Capacity To Sue Pursuant to C.C.P. §352 & §372
24 Plaintiff has alleged, and the Court has initially accepted, that pursuant to C.C.P. §352 she
25 lacks the capacity to make her own decisions and this condition should be sufficient to toll any
26 statute of limitations. (UMF 4, 8, 9, 10, 11, and 13). C.C.P. §352(a) states in pertinent part:
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(a) If a person entitled to bring an action, mentioned in Chapter 3 (commencing
28 with Section 335) is, at the time the cause of action accrued either under the age
of majority or lacking the legal capacity to make decisions, the time of the
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
disability is not part of the time limited for the commencement of the action.
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2 Generally, any person or entity has the capacity to maintain or defend a suit. However,
3 there are certain exceptions, the most frequent of which in the personal injury context involve
4 minors, incompetents and estates. Pursuant to C.C.P. §372, a person designated as lacking the
5 legal capacity to make decisions is deemed to also not have capacity to sue or defend an action in
6 their own names. Rather, litigation must be conducted through a conservator of the estate or
7 guardian ad litem. C.C.P. §372(a)(1).
8 Plaintiff has never appointed a guardian or conservator in this case. C.C.P. §372(a)(1).
9 (UMF 11). However, even if a conservator or guardian had been or may be appointed by the
10 Court, if the appointed individual is not an attorney, they cannot personally litigate a matter on
11 behalf of the incompetent. Doing so would constitute the unauthorized practice of law. Bus. &
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12 Prof. Code §6125; J.W. v. Sup.Ct. (1993) 17 CA4th 958, 965. Additionally, where an attorney has
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13 been relieved or removed as counsel of record, a non-attorney guardian ad litem can voluntarily
14 dismiss the action without prejudice. For example, where the opposing party’s motion for
15 summary judgment is pending, allowing the guardian ad litem to dismiss is “the only fair remedy.”
16 Mossanen v. Monfared (2000) 77 CA4th 1402, 1410.
17 With this case law in mind, let us proceed with the following facts. First, the Complaint
18 alleges that Plaintiff is “insane” within the meaning of C.C.P. §352. (UMF 4, 8). Over time, the
19 term “insane” has fallen out of public favor and has been substituted with the phrase “lacking the
20 legal capacity to make decisions.” C.C.P. §352. This Court correctly acknowledged this change in
21 language when it ruled on the Golden Living Defendants’ Demurrer. (UMF 9). For present
22 purposes, it is unrefuted that Plaintiff lacks the capacity to make decisions and consequently
23 maintain her suit. Second, Plaintiff has never requested, nor has she had, a conservator or guardian
24 appointed. (UMF 11, 12, 13). Finally, as of September 26, 2019, Plaintiff is also without legal
25 counsel to prosecute her claims. (UMF 12).
26 Defendants timely challenged Plaintiff’s legal capacity to sue as the 9th affirmative defense
27 in their Answer. (UMF 10). Plaintiff may question the timing of raising this capacity issue
28 through the present motion. However, the Golden Living Defendants have never waived the
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 applicability of this grounds for dismissal. C.C.P. §430.80(a) is specifically clear on any potential
2 “timing” argument, which Plaintiff may raise in an opposition:
3 “If the party against whom the complaint or cross-complaint has been filed fails
to object to the pleading, either by demurrer or answer, that party is deemed to
4 have waived the objection unless the court has no jurisdiction of the subject of
the cause of action alleged in the pleading or an objection that the pleading does
5 not state facts sufficient to constitute a cause of action.” [Emphasis added].
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7 C.C.P. §430.80(a) expressly gives the Golden Living Defendants the option to raise the
8 “lack of capacity” issue either by demurrer or answer. In this instance, The Golden Living
9 Defendants are doing so now through this motion for summary judgment/summary adjudication.
10 Moreover, pursuant to C.C.P §430.80 (b) Plaintiff is now prohibited from challenging the
11 “capacity” objection given the following language:
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12 “If the party against whom an answer has been filed fails to demurrer thereto,
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13 that party is deemed to have waived the objection unless it is an objection that
14 the answer does not state facts sufficient to constitute a defense.” [Emphasis
15 added].
16 Here, Plaintiff did not file any motion/demurrer challenging the Golden Living Defendants’
17 Answer to the operative complaint. Stated alternatively, Plaintiff has waived any challenge to the
18 “lack of capacity” argument. Given the present circumstances, Plaintiff lacks the capacity to
19 legally maintain and prosecute any of her claims and this matter should be dismissed in its entirety
20 as a matter of law. (UMF 1-13).
21 C. Plaintiff’s Elder Abuse, Professional Negligence, and Violation of Resident Rights
22 Claims are Barred by the Applicable Statutes of Limitations – C.C.P. §340.5 and
23 §335.1
24 1. Factual Framework
25 “The application of the statute of limitations on undisputed facts is a purely legal question.”
26 (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) “[W]henever reasonable
27 minds can draw only one conclusion from the evidence, the question becomes one of law.” (Snow
28 v. A.H. Robins Co. (1985) 165 Cal.App.3d 120, 128.) It is conclusively clear that Plaintiff’s
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 Complaint is barred by the applicable statutes of limitations found under C.C.P. §340.5 and §335.1.
2 Plaintiff primary allegation against the Golden Living Defendants is the following:
3 “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.” (UMF 1)
4
5 Plaintiff’s sole basis in asserting liability against the Golden Living Defendants arises
6 exclusively from an alleged “unwitnessed” fall she had on March 8, 2013 at the Golden LivingCenter-
7 Fresno facility. Later, “[I]n April 2013, BROWN was transferred to GLC-CLOVIS.” (UMF 2).
8 On December 16, 2016, the Golden Living Defendants ceased their respective operations of
9 the Golden LivingCenter-Fresno and Golden LivingCenter-Clovis facilities and turned the care
10 duties over to new operators, Defendants Dycora Transitional Health-Clovis LLC and Dycora
11 Transitional Health-Fresno LLC. (UMF 3). Plaintiff has raised no specific care allegation for her
PERRY, JOHNSON, ANDERSON,
12 time at the Golden LivingCenter-Clovis facility. Plaintiff then filed her Complaint on November
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13 27, 2017. (UMF 4).
14 Plaintiff has since argued that her claim of “insanity”/ “lacking capacity to make decisions”
15 has effectively tolled any applicable statute of limitations on her Elder Abuse, Professional
16 Negligence, and Violation of Resident Rights claims. (UMF 4, 5, 8, 12, and 13). The Golden
17 Living Defendants continue to refute this legal assertion. (UMF 10).
18 2. Statute of Limitations on Professional Negligence (C.C. §340.5)
19 Code of Civil Procedure §340.5 outlined the applicable statute of limitations for
20 professional negligence actions against health care provider for alleged injuries. The statute
21 applies to the alleged negligent rendering of professional services that hospitals and others health
22 care professionals provide to patients. Flores v. Presbyterian Intercommunity Hospital (2016) 63
23 Cal.4th 75, 88.
24 C.C.P. §340.5, in its entirety states:
25 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
26 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
27 injury, whichever occurs first.
28 In no event shall the time for commencement of legal action exceed three years
unless tolled for any of the following:
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
(1) upon proof of fraud,
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(2) intentional concealment, or
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(3) the presence of a foreign body, which has no therapeutic or diagnostic
3 purpose or effect, in the person of the injured person.
4 Actions by a minor shall be commenced within three years from the date of the
alleged wrongful act except that actions by a minor under the full age of six
5 years shall be commenced within three years or prior to his eighth birthday
whichever provides a longer period. Such time limitation shall be tolled for
6 minors for any period during which parent or guardian and defendant’s insurer
or health care provider have committed fraud or collusion in the failure to bring
7 an action on behalf of the injured minor for professional negligence.” [Emphasis
added].
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9 Here, the Golden Living Defendants’ respective facilities, Golden LivingCenter-Fresno and
10 Golden LivingCenter-Clovis, are considered “health care providers” subject to MICRA and C.C.P
11 §340.5. The Complaint specifically and almost exclusively alleges that “While under the care and
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12 treatment of GLC-FRESNO, BROWN suffered a broken leg due to the lack of care provided by
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13 GLC-FRESNO staff.” (UMF 1). “In April 2013, BROWN was transferred to GLC-CLOVIS.”
14 (UMF 2). Therefore, Plaintiff cannot argue that C.C.P. §340.5. does not apply to the Golden
15 Living Defendants in this instance.
16 a. C.C.P. 340.5 Is Not Affected by C.C.P. 352
17 However, Plaintiff has argued that her “lack of capacity” designation under C.C.P. §352
18 tolls the applicable statute of limitations for professional negligence outlined under C.C.P. §340.5.
19 Plaintiff’s argument in legal analysis is erroneous for the following reasons.
20 First, C.C.P. §340.5 makes no reference to C.C.P. §352 and only describes 3 exceptions
21 under which the statute of limitations should be tolled. These exceptions include instances of
22 fraud, intentional concealment, or when the presence of a foreign body has been concealed and/or
23 undetected in a person. C.C.P. §340.5(1)-(3). None of these exceptions apply to Plaintiff. More
24 importantly, there is no other exception allowing for the tolling of the statutory period under C.C.P.
25 §340.5.
26 Second, absent any tolling exception, C.C.P. §340.5 is also explicitly clear that “the time
27 for the commencement of action shall be three years after the date of injury or one year after the
28 plaintiff discovers.” Here, Plaintiff did not file a professional negligence claim against the Golden
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 Living Defendants until more than 4 years after the alleged incident (unwitnessed fall) occurred.
2 (UMF 1 and 4).
3 Finally, Plaintiff will continue to argue C.C.P. §352 tolls the professional negligence statute
4 of limitations period under C.C.P. §340.5. Plaintiff, and potentially this Court, may continue to
5 rely on Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 103-104, which
6 held that plaintiff’s insanity tolled the running of the one-year statute of limitations on plaintiff’s
7 claim for medical negligence. In Alcott, Plaintiff’s Guardian ad litem filed an action against a
8 skilled nursing facility (defendant Alcott) alleging elder abuse, neglect, and medical malpractice.
9 Plaintiff had 2 separate admission periods at Alcott’s facility (11/18/98 to 01/12/99 and 01/22/99 to
10 5/99). Plaintiff filed her complaint on March 6, 2000 and Defendant Alcott moved for summary
11 adjudication on any professional negligence claim within the 1st admission. C.C.P. §340.5 (1-year
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12 timeframe). The Alcott court erroneously rejected defendant’s argument under the rationale that
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13 there was no specific language barring C.C.P. §352 from applying to the one-year timeframe.
14 However, the Alcott court failed to recognize and conveniently side-stepped the specific
15 exclusionary language found in C.C.P. §340.5.
16 Again, Golden Living Defendants revert back to the specific plain language of C.C.P.
17 §340.5 which states “[I]n no event.” The more accurate reading of C.C.P. §340.5 and its interplay
18 with C.C.P. §352 is found in the matter of Fogarty v. Superior Court (1981) 117 Cal.App.3d 316.
19 In Fogarty, the court concluded that the statute of limitations in an action for damages for
20 malpractice was covered by the medical malpractice statute (C.C.P. §340.5) and not the general
21 tolling statute (C.C.P. §352).
22 Plaintiff argued that C.C.P. §352 should control because C.C.P. §340.5 did not mention
23 insane or incompetent persons. Id. at 320. The same argument is made by the instant Plaintiff.
24 However, the Fogarty court correctly noted that “[T]he general rule of statutory construction is to
25 the contrary. “Where a statute on a particular subject omits a particular provision, the inclusion
26 of such a provision in another statute concerning a related matter indicates an intent that the
27 provision is not applicable to the statute, from which it was omitted.”” (Citing Marsh v. Edwards
28 Theatres Circuit, Inc. (1976) 54 Cal.App. 3d 881, 891).
9
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
1 The Fogarty court went on to reason and conclude:
2 “There is no evidence of the legislative intent in the instant situation to allow
exceptions other than those listed in section 340.5. All indications of intent are to
3 the contrary. The legislative enumeration of certain exceptions by necessary
implication includes all other exceptions. (People Ex Rel. Cranston v. Bonelli
4 (1971) 15 Cal.App.3d 129,135, 92 Cal.Rptr. 828).
5 Furthermore, the Legislature preface the list of instances in which the statute
is told with the proviso that “[I]n no event” shall the statute be tolled in other
6 instances.
7 Although the statue then goes on to set forth the calculation of the time period for
minors, there is no separate calculation for incompetence and no indication that
8 the Legislature intended section 352, to act as a residuary for classes not
mentioned in section 340.5.” Id. at 320. [Emphasis added].
9
10 In summary, the Golden Living Defendants argue this Court should rely exclusively on
11 Fogerty which completely and correctly dissects the interplay between C.C.P. §340.5 and §352 and
PERRY, JOHNSON, ANDERSON,
12 found that the latter had no impact on the
Preview
E-FILED 1 DAVID F. BEACH, ESQ. (SBN 127135) OSCAR A. PARDO, ESQ (SBN 249955) 10/8/2019 3:25 PM 2 PERRY, JOHNSON, ANDERSON, Superior Court of California MILLER & MOSKOWITZ, LLP County of Fresno 3 438 First Street, Fourth Floor By: M. Douangkham, Deputy Santa Rosa, CA 95401 4 Telephone: (707) 525-8800 Facsimile: (707) 545-8242 5 Attorney for Defendants 6 BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN LIVINGCENTER – FRESNO; BEVERLY 7 HEALTHCARE – CALIFORNIA, INC. dba GOLDEN LIVINGCENTER – CLOVIS 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 JOSIE MAE BROWN, individually, ) CASE No. 17CECG04065 ) PERRY, JOHNSON, ANDERSON, 12 Plaintiff, ) Unlimited Civil Action MILLER & MOSKOWITZ LLP ) Assigned to Hon. Jeffrey Y. Hamilton 13 vs. ) ) DEFENDANTS’ MEMORANDUM OF 14 BEVERLY HEALTHCARE-CALIFORNIA, ) POINTS AND AUTHORITIES IN INC. dba GOLDEN LIVINGCENTER – ) SUPPORT OF MOTION FOR SUMMARY 15 FRESNO; BEVERLY HEALTHCARE, INC. dba ) JUDGMENT OR, IN THE ALTERNATIVE, GOLDEN LIVINGCENTER – CLOVIS, and ) SUMMARY ADJUDICATION OF ISSUES 16 DOES 1 through 200, inclusive, ) ) 17 Defendants. ) Complaint Filed: November 27, 2017 ) Trial Date: January 27, 2020 18 ) ) Date: January 7, 2020 19 ) Time: 3:30 p.m. ) Dept.: 501 20 ) ) 21 ) 22 23 24 25 26 27 28 i DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 TABLE OF CONTENTS 2 I. INTRODUCTION ........................................................................................................................... 1 3 II. STATEMENT OF FACTS............................................................................................................. 2 4 III. LEGAL AUTHORITY & ANALYSIS ........................................................................................ 3 5 A. Procedural Authority For A Motion for Summary Judgment/Summary Adjudication 6 ..................................................................................................................................... 3 7 B. Plaintiff Does Not Have The Capacity To Sue Pursuant to C.C.P. §352 & §372 ...... 4 8 C. Plaintiff’s Elder Abuse, Professional Negligence, and Violation of Resident Rights 9 Claims are Barred by the Applicable Statutes of Limitations – C.C.P. §340.5 and 10 §335.1.......................................................................................................................... 6 11 1. Factual Framework ......................................................................................... 6 PERRY, JOHNSON, ANDERSON, 12 2. Statute of Limitations on Professional Negligence (C.C. §340.5).................. 7 MILLER & MOSKOWITZ LLP 13 3. Statute of Limitations for Elder Abuse and Violation of Patient Rights ...... 10 14 D. Plaintiff’s Claims Have No Merit ............................................................................. 11 15 1. Plaintiff’s Professional Negligence Claims Is Without Merit ...................... 11 16 2. Plaintiff’s Elder Abuse Claim Is Without Merit ........................................... 12 17 3. Plaintiff’s Violation of Residents’ Right Is Without Merit. ......................... 14 18 IV. CONCLUSION........................................................................................................................... 15 19 20 21 22 23 24 25 26 27 28 ii DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 TABLE OF AUTHORITIES 2 Cases 3 Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 103-104 ..................... 10 4 ARA Living Centers - Pacific, Inc. v. Superior Court, 18 Cal. App. 4th 1556, 1563-1564 ........ 11, 15 5 Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 ............................................ 7 6 Benun v. Superior Court (2004) 123 Cal.App.4th 113, 125-127 ...................................................... 12 7 Berkley v. Dowds, 152 Cal. App. 4th 518 ......................................................................................... 12 8 Delaney v. Baker (1999) 20 Cal.4th 23, 31-32 ................................................................................. 15 9 Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 88 ....................................... 8 10 Fogarty v. Superior Court (1981) 117 Cal.App.3d 316 ............................................................. 10, 11 11 J.W. v. Sup.Ct. (1993) 17 CA4th 958, 965.......................................................................................... 5 PERRY, JOHNSON, ANDERSON, 12 Jambazian v. Borden 25 Cal. App. 4th 836, 849 ............................................................................... 13 MILLER & MOSKOWITZ LLP 13 Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396,402-403 ................................... 13 14 Landeros v. Flood (1976) 17 Cal.3d 399, 400 .................................................................................. 13 15 Mack v. Soung (2000) 80 Cal.App.4th 966, 97................................................................................. 15 16 Marsh v. Edwards Theatres Circuit, Inc. (1976) 54 Cal.App. 3d 881, 891...................................... 11 17 Mossanen v. Monfared (2000) 77 CA4th 1402, 1410 ........................................................................ 5 18 People Ex Rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129,135, 92 Cal.Rptr. 828 .................... 11 19 Reich v. Yow (1967) 249 C.A.2d 12, 14............................................................................................ 13 20 Romak Iron Works v. Prudential Ins. Co. (1980) 104 C.A.3d 767................................................... 12 21 Snow v. A.H. Robins Co. (1985) 165 Cal.App.3d 120, 128 ................................................................ 7 22 White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.................................................................. 16 23 Statutes 24 Bus. & Prof. Code §6125 .................................................................................................................... 5 25 Civil Code section 3294 .............................................................................................................. 15, 16 26 Code Civ. Proc. §1714.8 ................................................................................................................... 14 27 Code Civ. Proc. §335.1 ............................................................................................................. 1, 7, 12 28 Code Civ. Proc. §340.5 .............................................................................................................. passim iii DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 Code Civ. Proc. §352 2 2.............................................................................................................................................. passim 3 Code Civ. Proc. §372 .......................................................................................................................... 5 4 Code Civ. Proc. §430.80 ..................................................................................................................... 6 5 Code Civ. Proc. §437 ...................................................................................................................... 3, 4 6 Health & Safety Code §1430 .............................................................................................. 1, 2, 12, 17 7 Welfare and Institutions Code §15600 ............................................................................................. 14 8 Welfare and Institutions Code §15657 ............................................................................................. 15 9 10 11 PERRY, JOHNSON, ANDERSON, 12 MILLER & MOSKOWITZ LLP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 Defendants BEVERLY HEALTHCARE-CALIFORNIA, INC. dba GOLDEN 2 LIVINGCENTER – FRESNO and BEVERLY HEALTHCARE – CALIFORNIA, INC. dba 3 GOLDEN LIVINGCENTER – CLOVIS (hereinafter “Defendants” or “Golden Living”) hereby 4 submit the following memorandum of points and authorities in support of their motion for 5 summary judgment or, in the alternative, summary adjudication of issues as to all causes of action 6 asserted by Plaintiff JOSIE MAE BROWN. 7 I. 8 INTRODUCTION 9 Plaintiff JOSIE MAE BROWN filed her Complaint for Damages on November 27, 2017 10 and personally served the Golden Living Defendants on December 7, 2017. Her complaint alleges 11 Elder Abuse, Violation of Patient’s Rights (Health & Safety Code §1430(b)) and Professional PERRY, JOHNSON, ANDERSON, 12 Negligence arising from Ms. Brown’s time at two facilities operated by the Golden Living MILLER & MOSKOWITZ LLP 13 Defendants. Defendants ceased their respective operations of Golden LivingCenter-Fresno and 14 Golden LivingCenter-Clovis on December 16, 2016. Plaintiff’s sole factual basis in asserting the 15 claims against the Golden Living Defendants arise from an alleged “unwitnessed” fall she had on 16 March 8, 2013 at the GL-Fresno facility. She has made no specific claims against Golden 17 LivingCenter-Clovis. 18 The following motion for summary judgment, or in the alternative summary adjudication, is 19 based on the following arguments: 20 First, pursuant to California Code of Civil Procedure §352, Plaintiff does not have the 21 capacity to sue; and 22 Second, Plaintiff’s claims for elder abuse, professional negligence, and violation of 23 residents’ rights (Health & Safety Code §1430(b)) are barred by the applicable statutes 24 of limitations, C.C.P. §340.5 and §335.1; and 25 Third, Plaintiff’s claims have no merit as there are no triable issues of material facts 26 which Plaintiff can present against the Golden Living Defendants. 27 Absent the necessary material facts or cures for the procedural defects identified above, the 28 Golden Living Defendants are entitled to judgment as a matter of law, or at minimum, to summary 1 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 adjudication on the respective claims. 2 II. 3 STATEMENT OF FACTS 4 Plaintiff’s primary allegation against the Golden Living Defendants is the following: 5 “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.” 6 (Undisputed Material Fact “UMF” 1). 7 Later, “[I]n April 2013, BROWN was transferred to GLC-CLOVIS.” (UMF 2). On 8 December 16, 2016, the Golden Living Defendants ceased their respective operations of Golden 9 LivingCenter-Fresno and Golden LivingCenter-Clovis and turned the care duties over to new 10 operators, Defendants Dycora Transitional Health-Clovis LLC and Dycora Transitional Health- 11 Fresno LLC. (UMF 3). Plaintiff continued residing at the Dycora Fresno facility for an PERRY, JOHNSON, ANDERSON, 12 undetermined amount of time and is alleging other care issues against the Dycora defendant. MILLER & MOSKOWITZ LLP 13 Plaintiff filed her Complaint on November 27, 2017. (UMF 4). Her complaint alleges 14 Elder Abuse, Violation of Patient’s Rights (Health & Safety Code §1430(b)) and Professional 15 Negligence against the Golden Living Defendants and other defendants. (UMF 5). However, 16 Plaintiff’s sole basis in asserting liability against the Golden Living Defendants arises exclusively 17 from an alleged “unwitnessed” fall she had on March 8, 2013 at the Golden LivingCenter-Fresno 18 facility. (UMF 1). 19 First, Plaintiff and her prior counsel have been free to conduct discovery and secure 20 information and documents to assist in establishing her claims against the Golden Living 21 Defendants. (UMF 6). However, Plaintiff has conducted no discovery to date. With an impending 22 January 27, 2020 trial date, Plaintiff has thus far secured no evidence to support any of the 23 allegations raised against the Golding Living Defendants. (UMF 7). 24 Secondly, Plaintiff has continuously argued that pursuant to California Code of Civil 25 Procedure “C.C.P.” §352, she lacks “the legal capacity to make decisions.” (UMF 8). In denying 26 the Golden Living Defendants’ demurrer, the Court acknowledged and accepted Plaintiff’s 27 proposition in stating: 28 “Plaintiff has alleged that she was unable to communicate and was insane for the purposes of section 352, which is essentially the same as alleging that she 2 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES lacked the legal capacity to make decisions such as filing a lawsuit.” 1 (Emphasis added) (UMF 9) 2 The Golden Living Defendants answered the Complaint and continued to assert the 3 affirmative defense that Plaintiff lacks the capacity to sue. (UMF 10). Throughout this case, 4 Plaintiff has never designated a conservator or guardian ad litem to legally represent her person 5 given the C.C.P. §352 designation. (UMF 1 and 11). On September 26, 2019, the Court granted 6 Plaintiff’s counsel’s Motion to Withdraw. (UMF 12). Plaintiff is now self-represented, has an 7 established C.C.P. §352 designation, and is without a conservator, guardian ad litem, or legal 8 counsel. (UMF 13). These facts are sufficient to establish Plaintiff’s legal inability to continue 9 prosecuting her claims. 10 Finally, the Golden Living Defendants again challenge the legal sufficiency of the 11 Complaint, as it is clearly barred by the applicable statutes of limitation as to all three causes of PERRY, JOHNSON, ANDERSON, 12 MILLER & MOSKOWITZ LLP action. Plaintiff alleges that on March 8, 2013, she suffered an “unwitnessed” fall that resulted in a 13 broken leg at GLC-FRESNO. Plaintiff makes no care allegations as to her time at GLC-CLOVIS. 14 The GLC-FRESNO incident occurred more than four years before the Complaint was filed. 15 Therefore, Plaintiff’s claims against the Golden Living Defendants are time-barred under C.C.P. 16 §340.5. California case law also conclusively establishes that C.C.P. §352 does not toll any statute 17 of limitations period for a professional negligence claim under C.C.P. §340.5. 18 III. 19 LEGAL AUTHORITY & ANALYSIS 20 A. Procedural Authority For A Motion for Summary Judgment/Summary Adjudication 21 The procedural authority for a summary judgment motion is prescribed by C.C.P. §437c 22 and provides in pertinent part: 23 (a) (1) A party may move for summary judgment in an action or proceeding if it 24 is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed 25 since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance 26 that the court, with or without notice and upon good cause shown, may direct. 27 (c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the 28 moving party is entitled to a judgment as a matter of law.” 3 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 Additionally, a motion for summary adjudication can be made “as to one or more causes of 2 action within an action, . . . [or] one or more claims for damages . . . if that party contends that the 3 cause of action has no merit . . .or that there is no merit to a claim for damages, as specified in 4 Section 3294 of the Civil Code . . . A motion for summary adjudication shall be granted only if it 5 completely disposes of a cause of action . . . [or] a claim for damages.” C.C.P. 437c(f)(1). A 6 motion for summary adjudication may be made by itself or as an alternative to a motion for 7 summary judgment. C.C.P. 437c(f)(2). 8 The moving party’s burden on a motion for summary judgment is only to negate the 9 existence of triable issues of fact in a fashion that entitles him to judgment on the issue raised by 10 the pleadings; he is not required to refute liability on some theoretical possibility not including in 11 the pleadings. Waschek v. Department of Motor Vehicles (1997) 59 Cal.App. 4th 640, 644. “The PERRY, JOHNSON, ANDERSON, 12 purpose of the summary judgment procedure is to penetrate through evasive language and adept MILLER & MOSKOWITZ LLP 13 pleading and ascertain the existence or absence of trial issues of fact.” Chern v. Bank of America 14 (1976) 15 Cal.3d 866, 873). 15 “A trial court properly grants summary judgment where no triable issue of material fact 16 exists and the moving party is entitled to judgment as a matter of law.” Merrill v. Navegar, Inc. 17 (2001) 26 Cal.4th 465, 476. “[I]n moving for summary judgment, a ‘defendant ...has met’ his 18 ‘burden ...if’ he ‘has shown that one or more elements of the cause of action ...cannot be 19 established, or that there is a complete defense to that cause of action. Once the defendant ... has 20 met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more 21 material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield 22 Co. (2001) 25 Cal.4th 826, 849. 23 B. Plaintiff Does Not Have The Capacity To Sue Pursuant to C.C.P. §352 & §372 24 Plaintiff has alleged, and the Court has initially accepted, that pursuant to C.C.P. §352 she 25 lacks the capacity to make her own decisions and this condition should be sufficient to toll any 26 statute of limitations. (UMF 4, 8, 9, 10, 11, and 13). C.C.P. §352(a) states in pertinent part: 27 (a) If a person entitled to bring an action, mentioned in Chapter 3 (commencing 28 with Section 335) is, at the time the cause of action accrued either under the age of majority or lacking the legal capacity to make decisions, the time of the 4 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES disability is not part of the time limited for the commencement of the action. 1 2 Generally, any person or entity has the capacity to maintain or defend a suit. However, 3 there are certain exceptions, the most frequent of which in the personal injury context involve 4 minors, incompetents and estates. Pursuant to C.C.P. §372, a person designated as lacking the 5 legal capacity to make decisions is deemed to also not have capacity to sue or defend an action in 6 their own names. Rather, litigation must be conducted through a conservator of the estate or 7 guardian ad litem. C.C.P. §372(a)(1). 8 Plaintiff has never appointed a guardian or conservator in this case. C.C.P. §372(a)(1). 9 (UMF 11). However, even if a conservator or guardian had been or may be appointed by the 10 Court, if the appointed individual is not an attorney, they cannot personally litigate a matter on 11 behalf of the incompetent. Doing so would constitute the unauthorized practice of law. Bus. & PERRY, JOHNSON, ANDERSON, 12 Prof. Code §6125; J.W. v. Sup.Ct. (1993) 17 CA4th 958, 965. Additionally, where an attorney has MILLER & MOSKOWITZ LLP 13 been relieved or removed as counsel of record, a non-attorney guardian ad litem can voluntarily 14 dismiss the action without prejudice. For example, where the opposing party’s motion for 15 summary judgment is pending, allowing the guardian ad litem to dismiss is “the only fair remedy.” 16 Mossanen v. Monfared (2000) 77 CA4th 1402, 1410. 17 With this case law in mind, let us proceed with the following facts. First, the Complaint 18 alleges that Plaintiff is “insane” within the meaning of C.C.P. §352. (UMF 4, 8). Over time, the 19 term “insane” has fallen out of public favor and has been substituted with the phrase “lacking the 20 legal capacity to make decisions.” C.C.P. §352. This Court correctly acknowledged this change in 21 language when it ruled on the Golden Living Defendants’ Demurrer. (UMF 9). For present 22 purposes, it is unrefuted that Plaintiff lacks the capacity to make decisions and consequently 23 maintain her suit. Second, Plaintiff has never requested, nor has she had, a conservator or guardian 24 appointed. (UMF 11, 12, 13). Finally, as of September 26, 2019, Plaintiff is also without legal 25 counsel to prosecute her claims. (UMF 12). 26 Defendants timely challenged Plaintiff’s legal capacity to sue as the 9th affirmative defense 27 in their Answer. (UMF 10). Plaintiff may question the timing of raising this capacity issue 28 through the present motion. However, the Golden Living Defendants have never waived the 5 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 applicability of this grounds for dismissal. C.C.P. §430.80(a) is specifically clear on any potential 2 “timing” argument, which Plaintiff may raise in an opposition: 3 “If the party against whom the complaint or cross-complaint has been filed fails to object to the pleading, either by demurrer or answer, that party is deemed to 4 have waived the objection unless the court has no jurisdiction of the subject of the cause of action alleged in the pleading or an objection that the pleading does 5 not state facts sufficient to constitute a cause of action.” [Emphasis added]. 6 7 C.C.P. §430.80(a) expressly gives the Golden Living Defendants the option to raise the 8 “lack of capacity” issue either by demurrer or answer. In this instance, The Golden Living 9 Defendants are doing so now through this motion for summary judgment/summary adjudication. 10 Moreover, pursuant to C.C.P §430.80 (b) Plaintiff is now prohibited from challenging the 11 “capacity” objection given the following language: PERRY, JOHNSON, ANDERSON, 12 “If the party against whom an answer has been filed fails to demurrer thereto, MILLER & MOSKOWITZ LLP 13 that party is deemed to have waived the objection unless it is an objection that 14 the answer does not state facts sufficient to constitute a defense.” [Emphasis 15 added]. 16 Here, Plaintiff did not file any motion/demurrer challenging the Golden Living Defendants’ 17 Answer to the operative complaint. Stated alternatively, Plaintiff has waived any challenge to the 18 “lack of capacity” argument. Given the present circumstances, Plaintiff lacks the capacity to 19 legally maintain and prosecute any of her claims and this matter should be dismissed in its entirety 20 as a matter of law. (UMF 1-13). 21 C. Plaintiff’s Elder Abuse, Professional Negligence, and Violation of Resident Rights 22 Claims are Barred by the Applicable Statutes of Limitations – C.C.P. §340.5 and 23 §335.1 24 1. Factual Framework 25 “The application of the statute of limitations on undisputed facts is a purely legal question.” 26 (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) “[W]henever reasonable 27 minds can draw only one conclusion from the evidence, the question becomes one of law.” (Snow 28 v. A.H. Robins Co. (1985) 165 Cal.App.3d 120, 128.) It is conclusively clear that Plaintiff’s 6 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 Complaint is barred by the applicable statutes of limitations found under C.C.P. §340.5 and §335.1. 2 Plaintiff primary allegation against the Golden Living Defendants is the following: 3 “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.” (UMF 1) 4 5 Plaintiff’s sole basis in asserting liability against the Golden Living Defendants arises 6 exclusively from an alleged “unwitnessed” fall she had on March 8, 2013 at the Golden LivingCenter- 7 Fresno facility. Later, “[I]n April 2013, BROWN was transferred to GLC-CLOVIS.” (UMF 2). 8 On December 16, 2016, the Golden Living Defendants ceased their respective operations of 9 the Golden LivingCenter-Fresno and Golden LivingCenter-Clovis facilities and turned the care 10 duties over to new operators, Defendants Dycora Transitional Health-Clovis LLC and Dycora 11 Transitional Health-Fresno LLC. (UMF 3). Plaintiff has raised no specific care allegation for her PERRY, JOHNSON, ANDERSON, 12 time at the Golden LivingCenter-Clovis facility. Plaintiff then filed her Complaint on November MILLER & MOSKOWITZ LLP 13 27, 2017. (UMF 4). 14 Plaintiff has since argued that her claim of “insanity”/ “lacking capacity to make decisions” 15 has effectively tolled any applicable statute of limitations on her Elder Abuse, Professional 16 Negligence, and Violation of Resident Rights claims. (UMF 4, 5, 8, 12, and 13). The Golden 17 Living Defendants continue to refute this legal assertion. (UMF 10). 18 2. Statute of Limitations on Professional Negligence (C.C. §340.5) 19 Code of Civil Procedure §340.5 outlined the applicable statute of limitations for 20 professional negligence actions against health care provider for alleged injuries. The statute 21 applies to the alleged negligent rendering of professional services that hospitals and others health 22 care professionals provide to patients. Flores v. Presbyterian Intercommunity Hospital (2016) 63 23 Cal.4th 75, 88. 24 C.C.P. §340.5, in its entirety states: 25 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 26 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 27 injury, whichever occurs first. 28 In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: 7 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES (1) upon proof of fraud, 1 (2) intentional concealment, or 2 (3) the presence of a foreign body, which has no therapeutic or diagnostic 3 purpose or effect, in the person of the injured person. 4 Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six 5 years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for 6 minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring 7 an action on behalf of the injured minor for professional negligence.” [Emphasis added]. 8 9 Here, the Golden Living Defendants’ respective facilities, Golden LivingCenter-Fresno and 10 Golden LivingCenter-Clovis, are considered “health care providers” subject to MICRA and C.C.P 11 §340.5. The Complaint specifically and almost exclusively alleges that “While under the care and PERRY, JOHNSON, ANDERSON, 12 treatment of GLC-FRESNO, BROWN suffered a broken leg due to the lack of care provided by MILLER & MOSKOWITZ LLP 13 GLC-FRESNO staff.” (UMF 1). “In April 2013, BROWN was transferred to GLC-CLOVIS.” 14 (UMF 2). Therefore, Plaintiff cannot argue that C.C.P. §340.5. does not apply to the Golden 15 Living Defendants in this instance. 16 a. C.C.P. 340.5 Is Not Affected by C.C.P. 352 17 However, Plaintiff has argued that her “lack of capacity” designation under C.C.P. §352 18 tolls the applicable statute of limitations for professional negligence outlined under C.C.P. §340.5. 19 Plaintiff’s argument in legal analysis is erroneous for the following reasons. 20 First, C.C.P. §340.5 makes no reference to C.C.P. §352 and only describes 3 exceptions 21 under which the statute of limitations should be tolled. These exceptions include instances of 22 fraud, intentional concealment, or when the presence of a foreign body has been concealed and/or 23 undetected in a person. C.C.P. §340.5(1)-(3). None of these exceptions apply to Plaintiff. More 24 importantly, there is no other exception allowing for the tolling of the statutory period under C.C.P. 25 §340.5. 26 Second, absent any tolling exception, C.C.P. §340.5 is also explicitly clear that “the time 27 for the commencement of action shall be three years after the date of injury or one year after the 28 plaintiff discovers.” Here, Plaintiff did not file a professional negligence claim against the Golden 8 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 Living Defendants until more than 4 years after the alleged incident (unwitnessed fall) occurred. 2 (UMF 1 and 4). 3 Finally, Plaintiff will continue to argue C.C.P. §352 tolls the professional negligence statute 4 of limitations period under C.C.P. §340.5. Plaintiff, and potentially this Court, may continue to 5 rely on Alcott Rehabilitation Hospital v. Superior Court (2001) 93 Cal.App.4th 94, 103-104, which 6 held that plaintiff’s insanity tolled the running of the one-year statute of limitations on plaintiff’s 7 claim for medical negligence. In Alcott, Plaintiff’s Guardian ad litem filed an action against a 8 skilled nursing facility (defendant Alcott) alleging elder abuse, neglect, and medical malpractice. 9 Plaintiff had 2 separate admission periods at Alcott’s facility (11/18/98 to 01/12/99 and 01/22/99 to 10 5/99). Plaintiff filed her complaint on March 6, 2000 and Defendant Alcott moved for summary 11 adjudication on any professional negligence claim within the 1st admission. C.C.P. §340.5 (1-year PERRY, JOHNSON, ANDERSON, 12 timeframe). The Alcott court erroneously rejected defendant’s argument under the rationale that MILLER & MOSKOWITZ LLP 13 there was no specific language barring C.C.P. §352 from applying to the one-year timeframe. 14 However, the Alcott court failed to recognize and conveniently side-stepped the specific 15 exclusionary language found in C.C.P. §340.5. 16 Again, Golden Living Defendants revert back to the specific plain language of C.C.P. 17 §340.5 which states “[I]n no event.” The more accurate reading of C.C.P. §340.5 and its interplay 18 with C.C.P. §352 is found in the matter of Fogarty v. Superior Court (1981) 117 Cal.App.3d 316. 19 In Fogarty, the court concluded that the statute of limitations in an action for damages for 20 malpractice was covered by the medical malpractice statute (C.C.P. §340.5) and not the general 21 tolling statute (C.C.P. §352). 22 Plaintiff argued that C.C.P. §352 should control because C.C.P. §340.5 did not mention 23 insane or incompetent persons. Id. at 320. The same argument is made by the instant Plaintiff. 24 However, the Fogarty court correctly noted that “[T]he general rule of statutory construction is to 25 the contrary. “Where a statute on a particular subject omits a particular provision, the inclusion 26 of such a provision in another statute concerning a related matter indicates an intent that the 27 provision is not applicable to the statute, from which it was omitted.”” (Citing Marsh v. Edwards 28 Theatres Circuit, Inc. (1976) 54 Cal.App. 3d 881, 891). 9 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 1 The Fogarty court went on to reason and conclude: 2 “There is no evidence of the legislative intent in the instant situation to allow exceptions other than those listed in section 340.5. All indications of intent are to 3 the contrary. The legislative enumeration of certain exceptions by necessary implication includes all other exceptions. (People Ex Rel. Cranston v. Bonelli 4 (1971) 15 Cal.App.3d 129,135, 92 Cal.Rptr. 828). 5 Furthermore, the Legislature preface the list of instances in which the statute is told with the proviso that “[I]n no event” shall the statute be tolled in other 6 instances. 7 Although the statue then goes on to set forth the calculation of the time period for minors, there is no separate calculation for incompetence and no indication that 8 the Legislature intended section 352, to act as a residuary for classes not mentioned in section 340.5.” Id. at 320. [Emphasis added]. 9 10 In summary, the Golden Living Defendants argue this Court should rely exclusively on 11 Fogerty which completely and correctly dissects the interplay between C.C.P. §340.5 and §352 and PERRY, JOHNSON, ANDERSON, 12 found that the latter had no impact on the