Demurrer (Judge Holly J. Fujie)


Case Number: BC610033??? Hearing Date: November 07, 2016??? Dept: 98
TANIA LOVE,
Plaintiff,
vs.

DRAGON ACUPUNCTURE AND HERB CENTER, INC., et al.,

Defendants.

CASE NO: BC610033

[TENTATIVE] ORDER RE: DEFENDANT?S DEMURRER TO COMPLAINT

Dept. 98
1:30 p.m.
November 7, 2016

On February 10, 2016, Plaintiff Tania Love (?Plaintiff?) filed this action against Defendant Dragon Acupuncture and Herb Center, Inc. (?Defendant?) alleging causes of action for: 1) general negligence; and 2) premises liability. Defendant now demurs to Plaintiff?s Complaint in its entirety on the ground that this action is barred by the applicable statute of limitations.

When any ground for objection appears on the face of a complaint, a defendant may object by a demurrer to the pleading. Cal. Code of Civ. Proc. ? 430.30(a). Grounds for objection include failure to state facts sufficient to constitute a cause of action and uncertainty. Id., ?? 430.10(e)-(f). A court ?must accept properly pleaded facts as true, but a demurrer does not admit the plaintiff?s contentions nor conclusions of law or fact.? Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.

Plaintiff alleges that on or about February 12, 2014, she received acupuncture treatment at Defendant?s premises and was left unattended on an acupuncturist table for approximately 15 to 20 minutes after the treatment. She further alleges she was calling out for assistance while unattended but that she ultimately attempted to get off the table by herself, without the availability of a step stool, fell, and sustained severe injuries, including a fractured right ankle.

Defendant argues that Plaintiff?s causes of action amount to professional negligence, that her claims are therefore subject to a one-year statute of limitations, and that her claims are barred.

An action against a health care provider based upon such person?s alleged professional negligence must be commenced three years after the date of injury or one year after one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. Cal. Code of Civ. Proc. ? 340.5. ?Professional negligence? is defined as negligence that occurs while the health care provider is providing services that are within the scope of services for which the provider is licensed. Canister v. Emergency Ambulance Service (2008) 160 Cal.App.4th 388, 404. ?The relevant test is not the degree of skill required, but whether the negligence occurred in the rendering of services for which a provider is licensed.? Id.

Section 340.5 requires a distinction between the professional obligations of healthcare providers and the obligations that they have to maintain their premises for the safety of the public. Flores v. Presbyterian Intercommunity Hosp. (2016) 63 Cal.4th 75, 87. Injury resulting from a healthcare provider?s breach of its duty to maintain its premises in a safe condition does not fall within the purview of section 340.5, whereas injury that arises as a result of negligence in the rendering of professional services is subjected to the section?s special statute of limitations. Id., at 88. ?[W]hether negligence in maintaining hospital equipment or premises qualifies as professional negligence depends on the nature of the relationship between the equipment or premises in question and the provision of medical care to the plaintiff.? Id. If the equipment or premises are integrally related or necessary to the treatment and diagnoses of the plaintiff, a cause of action for professional negligence may be stated. Id. In contrast, negligent maintenance of equipment or premises that are incidental to the provision of medical care, such as tables, televisions, or toilets, does not give rise to a professional negligence claim. Id., at 88-89. The Flores court provided the following example: if a chair in a hospital waiting room collapses and injures the person sitting on it, the hospital?s duty is no different from that of any other business with chairs in which visitors may sit and section 340.5 does not apply. Id., at 89.

Defendant cites to Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, in which the plaintiff alleged that she was injured when she was left unattended on a rolling x-ray table and fell. The plaintiff contended that the hospital breached its duty to either secure the table or not leave her unattended. Id., at 799. The suit was filed more than one year after the incident and the hospital?s demurrer was sustained without leave to amend on the ground that it was barred by the one-year statute of limitations for personal injury actions. Id. On appeal, the plaintiff argued that her claim fell within professional negligence and was timely filed pursuant to Code of Civil Procedure section 364. Id., at 800. The appellate court agreed that the claim sounded in professional, rather than ordinary, negligence, noting that the plaintiff was on the x-ray table for the rendering of a professional service. Id., at 805. The court further noted that the fact that the setting of a brake on the x-ray table or holding the table in place do not require any particular professional skill is irrelevant, as an x-ray technician may perform a variety of tasks during the course of administering an examination or therapy, each of which is an integral part of the professional service being rendered. Id., at 808.

The Court finds Bellamy to be distinguishable from the present action. Plaintiff has alleged that she was on a table and left unattended for 15-20 minutes after the acupuncture treatment had concluded. Taken as true, this allegation suggests that she was not on the table for the rendering of a professional service. Further, Plaintiff alleges that she was injured as a result of the absence of a step stool and that said absence created a dangerous condition on Defendant?s premises. The Court finds that such allegations are akin to the chair in a waiting room example described in Flores, such that section 340.5 of the Code of Civil Procedure does not apply.

In light of the foregoing, Defendant?s Demurrer is OVERRULED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 7th day of November, 2016

Hon. Holly J. Fujie
Judge of the Superior Court