Before the Court this day is a demurrer by Mission Hospital to two causes of action in the First Amended Complaint: the 5th?cause of action for financial abuse; and the 11th?cause of action for negligence.? The demurrer was properly served, and counsel for both sides have discussed the matter (see Yarvis Decl Para 3).? However, there is no opposition to the demurrer filed.
5th?COA: Financial Abuse – Overruled
Plaintiffs here allege that Blair used her position as a nurse to extract from decedent in his weakened condition a signed and notarized financial power of attorney (dtd 09/07/13), and that defendant Hospital is (1) vicariously liable for this financial abuse because Blair was an employee, and (2) directly liable for assisting Blair with her malfeasance by providing the necessary notary.? See SAC Para 80.
Defendant Hospital contends that this cause of action for financial abuse (W&I Code ?15657.5) is controlled by the two-year limitations period under CCP ?335.1, and thus time-barred.? While the subject wrongdoing certainly occurred more than two years prior to the filing of this lawsuit, defendant is incorrect as to the statute of limitations.? Pursuant to W&I Code ?15657.7, an action financial abuse of a dependent adult ?shall be commenced within four years after the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse.?? With the wrongdoing occurring on 09/07/13, the filing of this lawsuit on 12/30/16 was timely.
11th?COA: Negligence ? Sustained, 20 days leave to amend
Plaintiffs allege that Hospital failed to ?reasonably care for decedent in light of decedent?s diminished mental and physical condition? and ?failed to protect the decedent while he was a patient.?? See SAC Paras 123, 125.? According to plaintiffs, by virtue of defendant?s failure to watch over decedent, Blair was able to sneak in and extract the bogus power of attorney.
Defendant contends that this negligence cause of action is really one for professional negligence, and time-barred per CCP ?340.5.? This statute applies to all claims ? regardless of labels ? which relate in any way to the delivery of patient health care.??Flores v. Presbyterian Intercommunity Hospital?(2016) 63 Cal.4th?75, 88-89;?Nava v. Saddleback Memorial Medical Center?(2016) 4 Cal.App.5th?285, 287.? Plaintiffs? allegations of wrongdoing likely bring the negligence cause of action within the purview of ?340.5 since plaintiffs contend that the Hospital had an extra duty to watch over decedent given his weakened condition.? It is not necessary to make this determination, however, since under 340.5 or 335.1 (two years) the claim seems to be time-barred.
Pursuant to CCP ?340.5, ?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.?? Viewing the cause of action liberally, it did not accrue until ?late-2013? when the power of attorney was actually used by Blair to take decedent?s money.? See SAC Para 19.? Since there are no facts alleged showing that the Hospital engaged in any fraud or intentional concealment, plaintiffs had until ?late-2016? at the latest to file suit.? Suit was filed 12/30/16, which this Court interprets to be after ?late-2016? (even though this might technically be ?late-2016?).? More importantly, however, is the one-year from discovery period.?? Plaintiffs allege that prior to acquiring the condominium in ?late-2013,? they were apprised of the events by Blair and experienced ?uneasiness? about it.? See SAC Para 16-17.? In other words, as alleged, plaintiffs already knew back in 2013 that Blair acquired the subject power of attorney, and should have been suspicious of wrongdoing given that decedent was ? according to plaintiffs ? unable to attend to his own needs.? Thus, under the one-year prong, which controls, the lawsuit was absolutely late.
A demurrer on the ground of the bar of statute of limitations will not lie where the action may be, but is not necessarily barred.? It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.? This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense.??Committee for Green Foothills v. Santa Clara County Board of Supervisors?(2010) 48 Cal.4th?32, 42;?May v. City of Milpitas?(2013) 217 Cal.App.4th?1307, 1324.? Here, the claim appears to be time-barred; however, the allegations are not precise enough to make that call as a matter of law.? Plaintiffs will be given 20 days leave to amend to plead around the limitations bar (if possible).
Moving party to give notice.