KAROLINA J. PENGILLEY vs WEST COAST HEARING AND BALANCE CENTER

2025CUMM047043: KAROLINA J. PENGILLEY vs WEST COAST HEARING AND BALANCE CENTER 07/29/2026 in Department 21 Demurrer

Tentative Rulings. Parties and counsel appearing for oral argument should address the tentative decision. Parties may submit on the tentative decision by email, with a copy to all other parties in the matter, to courtroom21@ventura.courts.ca.gov before 8:00 a.m. on the day set for the hearing, with a subject line that includes “SUBMISSION ON TENTATIVE”, Case Number, Title and Party. If fewer than all parties submit on the tentative, the hearing will proceed, and the tentative ruling is subject to change. The clerk cannot advise if you should still appear or not. The decision of whether to appear for a hearing is to be made by the parties and their counsel. (Dept. 21 Rules & Procedures, p. 4, § II.I.)

The following is a statement of the Court’s tentative ruling. The Court may adopt, modify or reject the tentative ruling after hearing. The tentative ruling has no legal effect unless and until adopted by the Court.

Motion:

Demurrer by Defendant West Coast Hearing and Balance Center (“Defendant”) to the third amended complaint (“TAC”) (opposed).

Tentative Ruling:

Defendant’s Request for Judicial Notice is GRANTED.

Defendant’s demurrer for failure to state a claim to the Third Amended Complaint is SUSTAINED, without leave to amend.

Discussion:

A. Request for Judicial Notice

Defendant requests judicial notice of various court records. Plaintiff objects to the records as misleading. The court records are relevant to Defendant’s arguments, and subject to permissive judicial notice. (See Evid. Code, § 452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn.2.) Judicial notice may be taken of the existence of documents in the court’s file, but not hearsay statements set forth therein; rather, judicial notice may only be taken of the existence of the records, the fact that they contain certain statements, the truth of the Court’s factual findings (that are the result of an adversarial hearing) and rulings, and the dates when the records were filed. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) Thus, Defendant’s request for judicial notice

2025CUMM047043: KAROLINA J. PENGILLEY vs WEST COAST HEARING AND BALANCE CENTER

is GRANTED, subject to the limitations in Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.

B. Analysis

“[W]hen the plaintiff in a medical malpractice action alleges the defendant health care provider misdiagnosed or failed to diagnose a preexisting disease or condition, there is no injury for purposes of section 340.5 until the plaintiff first experiences appreciable harm as a result of the misdiagnosis, which is when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one.” (Drexler v. Petersen (2016), 4 Cal.App.5th 1181, at pp. 1184-1185 [emphasis added].) “The injury is not necessarily the ultimate harm suffered, but instead occurs at ‘the point at which “appreciable harm” [is] first manifested.’ ” (Brewer v.

Remington (2020) 46 Cal.App.5th 14, 24.) An injury manifests when damage is “evidenced in some significant fashion; when the damage has clearly surfaced and is noticeable.” (Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1203.) “With the worsening of the plaintiff's condition, or an increase in or appearance of significant new symptoms, the plaintiff with a preexisting condition either actually (subjectively) discovers, or reasonably (objectively) should be aware of, the physical manifestation of his or her injury.” (Drexler, supra, 4 Cal.App.5th at p. 1194.)

Thus, section 340.5 contains two separate SOL periods: the 3-year period and the 1-year period. A plaintiff in a medical malpractice action must satisfy the requirements of both the one-year and the three-year limitations periods. (Drexler, supra, 4 Cal.App.5th 1181, 1189.) The one-year period commences to run not simply when the injury occurs but also requires that the plaintiff understand the negligent cause of the injury. (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759.) For purposes of the one-year period, discovery of the injury means the plaintiff has discovered “both his or her injury and its negligent cause.” (Drexler, supra, 4 Cal.App.5th 1181, 1189.)

The plaintiff “need not be aware of either the specific facts or the actual negligent cause of the injury. [Citation.] If the plaintiff has notice or information of circumstances that would put a reasonable person on inquiry notice, the limitation period is activated.” (Brewer, supra, 46 Cal.App.5th at p. 24.)

The three-year period begins to run from the date of injury; plaintiff’s knowledge or understanding of the negligent cause of the injury is not necessary. Because the three-year limitations period accrues at the time of injury, it is the surfacing of appreciable harm that marks the beginning of the three-year period, not knowledge of any negligence.

In the TAC, Plaintiff alleges that from 2013 through 2025, she received audiologic evaluations through Defendant for her progressively worsening hearing, tinnitus, and vestibular symptoms. (TAC, Introduction, p. 2.) “Despite progressive left-ear hearing decline, reported tinnitus, worsening balance dysfunction, and other abnormal audiologic findings documented during Plaintiff’s care at Defendant’s clinic between 2013 and 2019, Defendants failed to recognize, communicate, or act upon red flags warranting appropriate diagnostic workup, specialist referral, or imaging to evaluate potential retrocochlear pathology.” (TAC, ¶ 8.) “Instead of initiating appropriate diagnostic evaluation, Defendants continued a routine course of management focused on in-house testing and hearing-aid recommendations, including hearing-aid upgrades at Plaintiff’s expense. Defendant’s non-urgent communication and treatment approach reasonably

2025CUMM047043: KAROLINA J. PENGILLEY vs WEST COAST HEARING AND BALANCE CENTER

conveyed that Plaintiff’s condition was stable and did not require immediate investigation of a serious underlying cause.” (TAC, ¶ 9.)

In early 2020, Plaintiff’s car was rear-ended. Diagnostic imaging due to the accident revealed a 3.5 cm brain mass with hydrocephalus. (TAC, ¶15.) By this time, the brain mass that Defendant allegedly failed to diagnose had caused hydrocephalus and had grown to a size and location that posed serious and life-threatening risk. (TAC, ¶ 16.) Because the brain mass was diagnosed as a result of the car accident, Plaintiff did not connect the brain mass to the care she received from Defendant or its failure to diagnose. (TAC, ¶¶ 17 & 18.) She did not understand the significance of the findings or their relationship to Defendant’s prior care. (TAC, ¶ 17.) By the end of 2021, Plaintiff “understood she had a serious medical condition requiring treatment” although she did not realize that Defendants’ earlier care may have been negligent. (TAC, at p.46, lines 19-22.)

Plaintiff further alleges that in April 2022, during a consultation with a neurosurgeon, “Plaintiff was informed that the brain mass was an acoustic neuroma of significant size, with associated hydrocephalus and that prompt surgical intervention was necessary to prevent further neurological deterioration and potentially life-threatening complications.” (TAC, ¶ 21.) “Plaintiff was further informed that, due to the size and progression of the tumor, open brain surgery was the only appropriate treatment option...” (TAC, ¶ 21.)

She underwent brain surgery in June 2022. (TAC, ¶ 21.) She suffered severe postoperative limitations, including the inability to walk, neurological impairment, partial facial paralysis, left vocal cord paralysis, severely impaired valance, voice dysfunction, complete loss of hearing in the left ear, loss of smell and taste, continued tinnitus, and significant cognitive difficulties. (TAC, ¶ 22.)

Based on the foregoing allegations, Plaintiff’s hearing loss and vestibular symptoms occurring in 2013 did not start the limitations period, as they were the very reason she sought treatment from Defendant in the first place, and the symptoms in 2013 were not the result of any negligent act by Defendant. Although Plaintiff alleges that her symptoms worsened from 2013 through apparently 2022, it is unclear whether the worsening of her condition constituted a material change in her condition or the development of significant new symptoms, so as to constitute the manifestation of an injury.

However, Plaintiff suffered an appreciable harm in 2020, when she was diagnosed with a “brain mass.” The brain mass was already 3.5 cm at that point, and as Plaintiff alleges, had grown to that dangerous size and its location (in the internal auditory canal according to the MRI), due to Defendant’s failure to diagnose and refer. That Plaintiff did not suspect that the brain mass was related to or due to Defendant’s negligence is not relevant to the three-year limitations period under section 340.5. (Marriage & Family Center v.

Superior Court (1991) 228 Cal.App.3d 1647, 1654.)

Even if the Court assumed arguendo that the discovery of a brain mass by itself, without more, was insufficient manifestation of an injury to Plaintiff, there is also the April 2022 diagnosis, which explicitly described the brain mass as an “acoustic neuroma.” According to Webster Dictionary online, “acoustic neuroma” is defined as: “a nonmalignant usually slow-growing tumor involving the Schwann cells of a vestibular nerve that may cause deafness, tinnitus, and disturbance of the sense of balance and may be life threatening if not treated.”1 Objectively 1The Court takes judicial notice of the dictionary definition. (Evid. Code, § 451, subd. (e) [judicial notice shall be

taken of the “true signification of all English words and phrases and of all legal expressions”]; Golden Security Thrift & Loan Assn. v. First American Title Ins. Co. (1997) 53 Cal.App.4th 250, 256.)

2025CUMM047043: KAROLINA J. PENGILLEY vs WEST COAST HEARING AND BALANCE CENTER

speaking, a diagnosis of such a tumor appears clearly to be a manifestation of harm resulting from Defendant’s failure to diagnose, as stated in Steingart v. White (1988) 198 Cal.App.3d 406 (harm became manifested when diagnosis of breast cancer was given).

Additionally, Plaintiff clearly suffered an injury by the time she underwent open brain surgery in June 2022 and suffered serious consequences, including facial paralysis, complete hearing loss in the left ear, etc. To the extent that Plaintiff argues that she did not suffer an injury until the extent and permanence of her conditions became fully known, the argument is incorrect. (E.g., Davies v. Krasna (1975) 14 Cal.3d 502, 515-516 [limitations period is not tolled simply because the nature and extent of the damage was not determined or readily provable].)

Accordingly, appreciable harm and injury manifested itself to Plaintiff at the latest by June 2022. (See Steingart, supra, 198 Cal.App.3d at p. 410 [Steingart suffered no damaging effect or appreciable harm from defendant’s negligence until she was diagnosed with breast cancer]; see also Marriage & Family Center, supra, 228 Cal.App.3d at p. 1654 [“damage is ‘manifested’ for purposes of commencing the three-year period when it has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes aware of the injury.

We accept the Steingart proposition that severe damage which does not show itself (hidden cancer, for instance) is not ‘injury’ until it is found by diagnosis.”].) Here, Plaintiff did not file her lawsuit until July 8, 2025, more than three years after this manifestation.

The TAC alleges, and the Opposition argues, that the 2020 diagnosis and the 2022 surgery do not constitute Plaintiff’s injury because of various factors such as her diminished cognitive abilities which prevented her from knowing that the acoustic neuroma was related to Defendant’s negligent failure to diagnose. But again, injury for purposes of section 340.5’s three-year limitations period is not dependent on the plaintiff’s suspicion of wrongdoing. (Marriage & Family Center, supra, 228 Cal.App.3d at p. 1654 [“It does not follow, however, that damage which has clearly surfaced and is noticeable is not ‘injury’ until either the plaintiff or her physician recognizes it.”].)

Knowledge of defendant’s negligence is relevant only to the one-year limitations period under section 340.5. Here, Plaintiff’s allegations of diminished mental faculties might be sufficient to prevent the Court from concluding that the one-year limitations period under section 340.5 was triggered. Although a reasonable person exercising diligence should have connected the diagnosis of acoustic neuroma with Defendant’s failure to diagnose, Plaintiff alleges at length that her mental faculties were so compromised during this time that she could not and did not recognize the connection.

As such, the Court could find grounds to overrule the demurrer based on the one-year limitations period in CCP § 340.5. However, Plaintiff cannot defeat the 3-year statute of limitations and as was previously discussed, the tolling for a person lacking legal capacity under CCP § 352 does not apply to a medical malpractice action.

To the extent that the Court granted leave to amend the SAC so that Plaintiff may attempt to allege facts showing fraud or intentional concealment under section 340.5’s tolling provision, she has failed to do so. “Intentional concealment” must be specifically alleged. Intentional concealment does not usually occur as the result of mere omissions or the exercise of poor judgment; thus, plaintiffs must allege affirmative acts by the defendant to adequately plead intentional concealment. (McNall v. Summers (1994) 25 Cal.App.4th 1300, 1311-1312; Nichols v. Alghannam (2026) 118 Cal.App.5th 726.) Here, Plaintiff at most alleges that Defendant failed

2025CUMM047043: KAROLINA J. PENGILLEY vs WEST COAST HEARING AND BALANCE CENTER

to produce full and complete records of her treatment when requested to do so (yet, later states in the TAC that she in fact had in her own possession the documents that were allegedly missing from the records). This type of failure appears insufficient to constitute fraud or intentional concealment. (See Brown v. Bleiberg (1982) 32 Cal.3d 426 [held statute of limitations tolled by intentional concealment where doctor allegedly falsely told patient that unexpectedly extensive surgery on her foot had been necessitated by his discovery of tumors there].) Plaintiff does not allege Defendant’s affirmative concealment of the medical records, knowledge that the records were incomplete, or intentional withholding of the missing portions specifically to deceive or prevent discovery.

In sum, the TAC alleges facts showing that the three-year limitations period under section 340.5 expired prior to the filing of the initial complaint. Since Plaintiff’s TAC fails to satisfy the requirements of both the one-year and the three-year limitations periods, Defendants Demurrer is SUSTAINED.

Plaintiff has been granted sufficient opportunity to amend her pleading to state a cause of action and has failed to do so. The Court will SUSTAIN the demurrer without leave to amend.

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