Kono v. R+H Aesthetic Medicine

Defendants argue that Plaintiff has failed to sufficiently allege that any statute of limitations was tolled.

Code Civ. Proc. § 340.5 is the statute of limitations for medical provider’s professional negligence. It provides that:

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 any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. ....

Code Civ. Proc. § 340.5 (emphasis added).

For purposes of the 1-year statute, “the accrual date is delayed until plaintiff is aware of her injury and its negligent cause.” (Id. at §4:460, citing Jolly v. Eli Lilly & Co. (1988) 44 C3d 1103, 1109.) The date plaintiff “should have discovered” the injury is when plaintiff suspects or a reasonable person would have suspected that plaintiff's “injury” was caused by wrongdoing. (Id. at §4:461, citing Jolly, supra, at 1110- 1111.)

As to knowledge triggering the one year limitation, it is a suspicion of wrongdoing, not knowledge of what specifically caused the injury, that causes the statute of limitation to run:

a plaintiff need not know the precise manner in which a wrongdoer was negligent in order to discover his or her injury, within the meaning of section 340.5. ...[C]ourts have rejected the argument that the limitations period does not begin to run until a plaintiff learns the specific causal mechanism by which he or she has been injured.

Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1298.

The potential medical malpractice claimant need not be aware that there was professional “negligence,” nor does she need to know the identity of any potential defendant in order to start the one-year limitations period. (See Rose, 207 Cal.App.3d at 768-69, stating that “[t]he plaintiff's ignorance of the identity of the defendant wrongdoer does not toll the one-year period.”) Rather, she need only suspect wrongdoing by someone, as wrongdoing is understood in the lay sense, and the statute starts running:

Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. As we said in Sanchez and reiterated in Gutierrez, the limitations period begins once the plaintiff “”'has notice or information of circumstances to put a reasonable person on inquiry ....“”'... [T]he limitations period begins once the plaintiff “”'has notice or information of circumstances to put a reasonable person on inquiry ....“”' A plaintiff need not be aware of the specific “facts” necessary to establish the claim; that is a process contemplated by pretrial discovery.

Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.

Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-11 (citations omitted).

“[P]laintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

“Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light.” (Id. at pp. 808–809.)

The 1-year limitation period is also extended where a “Notice of Intent to Sue” is served during the last 90 days of limitations period. (Code Civ. Proc. § 364(a).) A malpractice action may not be commenced against a health care provider unless it has received at least 90 days' prior notice of plaintiff's intent to sue. (Id.; Jones v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 306-307 [no particular form of notice required (letter faxed on last day sufficient)]; and Selvidge v. Tang (2018) 20 Cal.App.5th 1279, 1284 [mailing notice to address medical professional provided to medical board for purpose of receiving mail provided adequate notice].)

While resolution of the statute of limitations issue is normally a question of fact (Fox, supra, 35 Cal.4th at p. 810), where the facts are undisputed application of the statute of limitations “is a purely legal question” subject to de novo review. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.)

The SAC alleges “Plaintiff experienced pain, extreme swelling and redness during and immediately following the Morpheus8 procedure,” which was performed on August 23, 2023. (SAC, ¶ 13-14). Absent the discovery rule or any tolling, then, the deadline to file Plaintiff’s complaint was August 23, 2024, but Plaintiff did not file the original complaint until April 3, 2025.

Plaintiff alleges that she expressed concern to Defendants “who told Plaintiff her outcome was as expected and her skin was healing normally.” (SAC, ¶ 14.) Plaintiff alleges she was “told that what she was experiencing was normal healing and tightening, and not indicative of a complication, fat loss or permanent harm.” (SAC, ¶ 28.) Plaintiff alleges she underwent a second Morpheus8 treatment in October 2023. (SAC, ¶¶ 29-31.) “Immediately after the second treatment, Plaintiff perceived a significant loss of facial volume and an aged appearance.” (SAC, ¶ 30.)

She sent a message to Defendant Aguilar on October 23, 2023 stating, “I’m really freaking out that this Morpheus 8 completely killed any fat on my face... I look so much older this second round....” (SAC, ¶ 31.) Plaintiff sent another message the same day, noting “everything I read says [fat loss] is irreversible,” and Defendant Aguilar suggested a follow up appointment. (SAC, ¶ 33.)

“On November 12-13, 2023, Plaintiff sent Defendant Aguilar extensive before-and-after photos fearing she had lost facial fat,” and Defendant Aguilar responded, “Give it 3–4 months... collagen production takes that time.” (SAC, ¶¶ 34-36.) Plaintiff alleges she relied on reassurances from Defendants and “reasonably believed that her outcome was either temporary, a non-negligent risk of the procedure, or ‘in her head,’ rather than the product of professional negligence.” (SAC, ¶ 40.) In Spring 2024, Plaintiff began researching Morpheus8 complications and

fat-loss injuries, learning that Morpheus8 can cause permanent facial fat loss. (SAC, ¶ 41.)

Plaintiff alleges she did not discover her facial disfigurement was caused by Defendants’ negligence until Spring 2024, and no earlier than March 2024. (SAC, ¶ 44.) In September 2024, Defendant Young sent Plaintiff a communication regarding a proposed refund conditioned on a release stating that “the Morpheus8 treatments did not cause facial volume loss.” (SAC, ¶ 45.) Plaintiff sent Defendants a written notice of intent to sue on December 3, 2024. (SAC, ¶ 50.)

This is a close call. However, as indicated previously, “[r]esolution of the statute of limitations issue is normally a question of fact.” (Fox, supra, 35 Cal.4th at p. 810.) More specifically, as to accrual, “once properly pleaded, belated discovery is a question of fact.” (Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 527.)

Certain cases support the argument that a healthcare provider’s reassurances can support delayed discovery. In Brown v. Bleiberg (1982) 32 Cal.3d 426, 436, the Supreme Court held there was a triable issue as to whether the plaintiff delayed filing suit based on a justifiable reliance on her doctor’s repeated reassurance that her condition would eventually heal. (See also Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 784 [patient who received several false reassurances from physician about his symptoms was not on inquiry notice of his illness and injury].)

Here, Plaintiff alleges Defendant told Plaintiff to “give it 3-4 months” in November 2023 because “collagen production takes that time.” (SAC, ¶¶ 34-36.) Plaintiff later discovered that her injuries may be permanent. (SAC, ¶¶ 41-44.) The Court must take these allegations as true on demurrer. Thus, the Court finds that Plaintiff has sufficiently pleaded facts showing that Plaintiff’s claims did not begin to accrue until March 2024. Based on these facts, then, Plaintiff’s December 3, 2024 intent to sue letter was thus sent within 90 days of the expiration of that one year period.

Plaintiff shall give notice of this ruling.

Case Management Conference

The Case Management Conference is continued to December 10, 2026, at 1:30 p.m. in this department.

Plaintiff to give notice.

3 Ruby v. Farano Plaintiffs Paula Sanburg Ruby and Barry Ruby’s Motion to Compel Further Responses to Special Interrogatories (Set One) and for Monetary Sanctions is DENIED.

Plaintiffs’ Motion is denied for several reasons.

First, Plaintiffs propounded 300 Special Interrogatories, yet they did not attach a “Declaration for Additional Discovery,” signed under penalty of perjury, as required by section 2030.050 of the Code of Civil Procedure.

Plaintiffs’ “Statement of Necessity Under CCP §§2030.030 and 2030.040” (Exhibit A to Ruby Declaration; Exhibit A to Opposition) is insufficient, as it does not comply with the requirements of section 2030.050, including a signature under penalty of perjury.

“Unless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded.” (Code Civ. Proc., § 2030.030, subd. (c).)

Since Plaintiffs’ Special Interrogatories did not comply with section 2030.050, Defendant Charle M. Farano’s was justified in his refusal to respond to Special Interrogatory nos. 36 through 300.

Second, a motion to compel further responses to interrogatories is required to be accompanied by a compliant separate statement. (Cal. Rules of Court, rule 3.1345(a)(2).)

When a motion fails to include a separate statement that provides all of the information necessary to understand each discovery request, and all the responses that are at issue, the trial court is well within its discretion to deny the motion. (In re Marriage of Moore (2024) 102 Cal.App.5th 1275, 1296; see People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1554 [no abuse of discretion in denying motion to compel where the motions failed to comply with the applicable rules regarding separate statements].)

For example, where a separate statement repeatedly grouped together several discovery requests, and where its statement of the factual and legal reasons for compelling further responses did not indicate which of the specific discovery requests the various factual and legal reasons related to, the trial court is justified in denying the motion for failure to comply with the separate statement requirement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

Plaintiffs submitted a separate statement that does not set forth each interrogatory at issue, nor did they submit a concise outline of each discovery request and response in dispute. Instead, they merely state that all 300 interrogatories are at issue, and they attach some, but not all, of Defendant’s discovery responses. (Exhibit B to Ruby Declaration [attaching select responses to Special Interrogatories].)

As in Mills, Plaintiffs do not comply with the separate statement requirement by attaching the discovery requests and responses to their Motion, as “ ‘[t]he separate statement shall be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material shall not be incorporated into the separate statement by reference.’ [Citation.]” (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893; Cal. Rules of Court, rule 3.1345(c).)

While Plaintiffs are permitted to submit a concise outline of the discovery request and each response in dispute (Code Civ. Proc., §

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