The Court intends to rule as follows:
Defendant's demurrer for failure to state a claim and uncertainty is OVERRULED. Defendant's demurrer to the FAC on the grounds of failure to state a claim and uncertainty is OVERRULED." Discussion: Demurrer for Failure to State a Claim: "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." (CCP, § 340.5, subd. (a).) Plaintiff allegedly never discovered the injury because she has been in a vegetative state. (FAC, ¶ 15.) Plaintiff persuasively argues that this means that the shorter 1-year statute of limitations cannot apply. Since Plaintiff timely filed the complaint within the 3-year limitation period, Defendant's demurrer for failure to state a claim
Hearing Date
June 11, 2018
Category
Civil - Unlimited
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The Court intends to rule as follows:
Defendant's demurrer for failure to state a claim and uncertainty is OVERRULED. Defendant's demurrer to the FAC on the grounds of failure to state a claim and uncertainty is OVERRULED." Discussion: Demurrer for Failure to State a Claim: "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." (CCP, § 340.5, subd. (a).) Plaintiff allegedly never discovered the injury because she has been in a vegetative state. (FAC, ¶ 15.) Plaintiff persuasively argues that this means that the shorter 1-year statute of limitations cannot apply. Since Plaintiff timely filed the complaint within the 3-year limitation period, Defendant's demurrer for failure to state a claim