Arroyo v. Plosay

Filed 4/2/14
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GUADALUPE ARROYO et al., B245659

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC484024)
v.

JOHN J. PLOSAY III et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Rolf M. Treu, Judge. Affirmed in part; reversed in part.
Law Offices of Scott E. Schutzman and Scott E. Schutzman for Plaintiffs
and Appellants.
Reback, McAndrews, Kjar, Warford, Stockalper & Moore, James J. Kjar,
Brian T. Selogie and Ryan P. Deane for Defendant and Respondent John J. Plosay
III.
Ryan, Datomi, Richard J. Ryan and Dawn Cushman for Defendant and
Respondent White Memorial Medical Center.
 On July 26, 2010, Maria de Jesus Arroyo (the decedent) died at White
Memorial Hospital (the Hospital) after being transported there by ambulance and
treated for cardiac arrest by Dr. John J. Plosay. On May 3, 2012, the decedent’s
husband, Guadalupe Arroyo, and the decedent’s eight children1 filed the present
action against the Hospital and Dr. Plosay, alleging three causes of action, the first
two of which were based on facts diametrically opposed to those underlying the
alternative third cause of action.2
The first two claims, medical negligence (brought as a survivorship action
by plaintiff Guadalupe Arroyo alone) and wrongful death (brought on behalf of all
plaintiffs) were based on allegations that the Hospital staff and Dr. Plosay
prematurely declared the decedent dead, after which she was placed in a
compartment in the Hospital morgue while still alive, inflicted disfiguring injuries
to her face while trying to escape, and ultimately froze to death. Plaintiffs alleged
that they did not discover these facts, and could not reasonably have discovered
them, until December 8, 2011, when an expert they retained in a prior dismissed
action against the Hospital (which was based solely on the alleged disfigurement of
the decedent’s remains after death) reviewed discovery material in the prior case
and opined, inter alia, that the decedent’s injuries occurred pre-mortem. The third
cause of action, styled negligence (and brought on behalf of all plaintiffs), was
based on the alternative factual premise (the premise underlying the prior action

1
The children are Armando Arroyo, Graciano Arroyo, Artemio Arroyo, Emilio
Arroyo, Willibaldo Arroyo, Maria F. Gutierrez, Leticia A. Jimenez, and Maria Carmen
Zamora.
2
“When a pleader is in doubt about what actually occurred or what can be
established by the evidence, the modern practice allows that party to plead in the
alternative and make inconsistent allegations.” (Mendoza v. Continental Sales Co. (2006)
140 Cal.App.4th 1395, 1402.)

2
against the Hospital) that after the decedent died from cardiac arrest, her body was
mishandled by Hospital staff when placing it in the morgue, resulting in facial
disfigurement that could not be masked by the mortuary whose workers first
observed the injuries.
In sustaining two demurrers by the Hospital without leave to amend (one to
the medical negligence and wrongful death claims, the other to the negligence
claim after amendment), the trial court concluded that the one-year limitation
period of Code of Civil Procedure section 340.5,3 applicable to actions for
professional negligence against a health care provider, applied to all claims and
commenced on or about July 26, 2010, the date plaintiffs learned of the decedent’s
death and the disfiguring injuries to her face. Therefore, the filing of this action on
May 3, 2012, was untimely, and the court dismissed the action against the
Hospital. As to Dr. Plosay, by stipulation plaintiffs agreed that the trial court’s
ruling on the Hospital’s demurrer to the medical negligence and wrongful death
claims applied to him as well, and plaintiffs agreed to dismiss those claims, along
with the negligence claim, as to him. The court entered an order of dismissal based
on the stipulation.
Plaintiffs appeal from the dismissals, contending that the trial court erred in
concluding that their three claims were barred by section 340.5. Assuming (as we
must) that plaintiffs’ allegations are true, we hold that they do not show, as a
matter of law, that the one-year period of section 340.5 for the medical negligence
and wrongful death claims began running on or about July 26, 2010. First, the
“injury” – a term of art encompassing the generic elements of wrongdoing,
causation and harm (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart))

3
All undesignated section references are to the Code of Civil Procedure.

3
– that plaintiffs then reasonably suspected was not the same “injury” as that
underlying the medical negligence and wrongful death claims. Second, the facts
alleged do not permit the conclusion, as a matter of law, that a reasonable
investigation of all potential causes of the injury plaintiffs suspected at the time of
the decedent’s death would have uncovered the factual basis for the negligence and
wrongful death claims before December 8, 2011, the date plaintiffs’ expert in the
prior action against the Hospital rendered his opinion. Therefore, the trial court
erred in sustaining the Hospital’s demurrer to these two causes of action, and we
reverse the orders dismissing those claims as to the Hospital and Dr. Plosay.
As to the cause of action for negligence, we conclude that section 340.5
provides the applicable limitation period, because (1) facts subject to judicial
notice (the Hospital’s licensed status and administrative regulation) establish that
placing the decedent’s remains in the Hospital morgue falls within the definition of
professional negligence, i.e., negligence in providing services for which the
Hospital is licensed, and (2) section 340.5 is not limited to actions for injury
caused to a patient, but rather applies to actions for injury by any party whose
injury was a foreseeable result of the alleged professional negligence. Because the
present action was filed more than one year after plaintiffs knew of or reasonably
suspected their injury, the negligence claim is barred. On that basis, we affirm the
trial court’s dismissal of the negligence claim against the Hospital. We affirm the
dismissal as to Dr. Plosay based on plaintiffs’ stipulated dismissal of the claim as
to him.

4
 BACKGROUND
The Mutilation Action
The case at issue in this appeal was not plaintiffs’ first suit against the
Hospital. Before filing the instant action on May 3, 2012, plaintiffs had filed suit
against the Hospital on January 31, 2011.4 For ease of reference, we (like the
parties) refer to this action as the mutilation action.
The complaint in the mutilation action alleged that on July 26, 2010, the
decedent was taken by ambulance to the Hospital, where she received treatment for
cardiac arrest, acute myocardial infarction, and hypertension. Shortly after arrival,
she was pronounced dead by hospital staff. When workers for the mortuary
selected by the family came to pick up the body, they found it lying face down in
the Hospital morgue. The decedent’s nose was broken and her face had suffered
lacerations and contusions – injuries that had not been present when she arrived at
the Hospital or when the body was viewed by relatives after the declaration of
death. The workers informed plaintiffs of the injuries to the decedent’s remains,
which the mortuary was unable to mask.
Plaintiffs alleged causes of action for: (1) negligence per se (based on
Health & Saf. Code, § 7052, subd. (a), which makes it a felony to “willfully
mutilate[] . . . any remains known to be human, without the authority of law”),
(2) ordinary negligence, and (3) intentional infliction of emotional distress. After
the trial court denied plaintiffs’ ex parte request to shorten time to hear a motion to
amend the complaint and summarily adjudicated the claims for negligence per se
and intentional infliction of emotional distress in the Hospital’s favor, plaintiffs

4
We take judicial notice of the complaint and records of relevant proceedings in the
mutilation action (Evid. Code, § 452, subd. (d)(1), which are included in the record on
appeal.

5
dismissed the remaining claim for negligence without prejudice on January 20,
2012, just before trial.

The Current Lawsuit
On May 3, 2012, plaintiffs filed the instant lawsuit, naming the Hospital and
Dr. Plosay as defendants. The complaint acknowledged the prior filing of the
mutilation action, and in part alleged facts substantially similar to the facts alleged
in that action. Thus, the complaint in the present case alleged that Dr. Plosay and
the Hospital staff pronounced the decedent dead shortly after she arrived to be
treated for cardiac arrest, acute myocardial infarction, and hypertension, that the
body was laid out for plaintiffs to view and pay their respects before it was taken to
the Hospital’s morgue, and that the decedent’s face then had no injuries. It further
alleged that when the mortuary workers examined the decedent’s body in the
Hospital’s morgue, it was lying face down. After the body was taken to the
mortuary, the workers discovered that the decedent’s nose was broken and the face
showed lacerations and contusions. Plaintiffs became aware of the disfiguring of
the remains when contacted by the mortuary, and the mortuary was unable to mask
the injuries.
However, whereas the mutilation action was premised solely on the injuries
having occurred after death, plaintiffs now alleged that during discovery in the
mutilation action, an expert, relying on deposition testimony, declarations of the
Hospital personnel, and the decedent’s medical records, opined that the decedent’s
remains were not disfigured after death. Rather, according to the expert, the
decedent “had been prematurely declared dead” by Dr. Plosay and the Hospital
staff, “frozen alive” in the Hospital’s freezer, “eventually woke up” due to the
extreme cold, and “damaged her face and turned herself face down as she struggled

6
unsuccessfully to escape her frozen tomb.” To avoid the statute of limitations,
plaintiffs alleged that they did not discover that the decedent had been frozen alive
until the expert gave his opinion on December 8, 2011, and could not have
discovered that fact earlier by the exercise of reasonable diligence.
The complaint alleged three causes of action against the Hospital and Dr.
Plosay. The first two claims, for medical negligence (brought by plaintiff
Guadalupe Arroyo alone, as successor in interest to the decedent) and for wrongful
death (brought on behalf of all plaintiffs), were based on the defendants’ alleged
negligence in prematurely declaring the decedent dead and allowing her to be
frozen alive, resulting in her death. The third claim (also brought on behalf of all
plaintiffs) was nearly identical to the negligence claim brought in the mutilation
action, and was based on the alternative theory that the defendants mishandled the
decedent’s remains post-mortem in transporting the body to the Hospital’s morgue,
or by manipulating her body there, resulting in disfigurement to her face.
Attached to the complaint was a declaration under section 377.32 by
plaintiff Guadalupe Arroyo in which he declared that the decedent died on July 26,
2010, and that he is the decedent’s successor in interest.5 Attached as an exhibit to
the declaration was a copy of the decedent’s death certificate, which stated that the
date of death was July 26, 2010, that it occurred at the Hospital, and that the
immediate cause of death was cardiac arrest, supplemented by acute myocardial

5
Section 377.32, subdivision (a) provides: “The person who seeks to commence an
action or proceeding or to continue a pending action or proceeding as the decedent’s
successor in interest under this article, shall execute and file an affidavit or a declaration
under penalty of perjury under the laws of this state stating” certain listed facts. A copy
of the death certificate must be attached to the affidavit or declaration. (§ 377.32, subd.
(c).)

7
infarction and hypertension. A physician other than Dr. Plosay was the certifying
physician.

The Hospital’s Demurrer
The Hospital demurred to the complaint, challenging all three causes of
action on the ground that they were barred by the one-year statute of limitations of
section 340.5 [“an action for injury or death against a health care provider based
upon such person’s alleged professional negligence” must be commenced within
“one year after the plaintiff discovers, or through the use of reasonable diligence
should have discovered, the injury”].)6 According to the Hospital, the first two
causes of action – medical negligence and wrongful death – were barred because
plaintiffs were aware of the disfiguring injuries to the decedent’s face on or about
July 26, 2010, the date she was pronounced dead, and such knowledge placed them
on notice of potential wrongdoing by the Hospital. However, they did not file the
instant complaint until May 3, 2012, much longer than one year after their
discovery of the potential wrongdoing. Similarly, the Hospital argued that the one-
year limitation period had expired for the third cause of action for negligence in the
handling of the remains, because it was identical to the claim in the mutilation
action, which had been dismissed, and the claim was not timely revived by the
current action filed on May 3, 2012.
In opposing the Hospital’s demurrer, plaintiffs conceded that section 340.5
applied to the medical negligence and wrongful death causes of action, but argued
that (as alleged in the complaint) they could not have reasonably discovered the
injury underlying those claims before December 8, 2011, when their expert in the

6
The Hospital also raised other grounds, which are not discussed on the merits by
the parties and which we do not address.

8
mutilation action first opined the decedent was alive when the facial injuries
occurred. Because the complaint was filed on May 3, 2012, less than one year
later, the claims were timely. As for the third cause of action plaintiffs argued that
the two-year limitation period for ordinary negligence applied, and therefore the
claim was not barred.

Trial Court’s Ruling
As here relevant, the trial court sustained the Hospital’s demurrer without
leave to amend as to the causes of action for medical negligence and wrongful
death, agreeing with the Hospital that section 340.5 barred the claims, because
plaintiffs’ knowledge of the decedent’s facial injuries started the one-year
limitation period running, and the instant complaint was filed more than one year
later.7 As to the third cause of action for negligence in the mutilation of the body,
the court sustained the demurrer, but granted leave to amend.

The First Amended Complaint
Plaintiffs filed a first amended complaint. The only material changes in the
first amended complaint were that the third cause of action for negligence was
amended to be brought on behalf of all plaintiffs except Guadalupe Arroyo as the
decedent’s successor in interest, and that the claim no longer incorporated by
reference facts specifically contained in the paragraphs of the first two causes of
action.

7
Although plaintiffs requested leave to amend to allege that fraud by the Hospital in
concealing the cause of death tolled the limitation period, the trial court denied leave.

9
The Hospital’s Demurrer to the First Amended Complaint
The Hospital demurred to the negligence cause of action on the ground that
it was barred by section 340.5. To show that the claim was for professional
negligence within the meaning of section 340.5, the Hospital asked the court to
take judicial notice of a copy of the Hospital’s license issued by the California
Department of Public Health in effect as of the date of the decedent’s death, July
26, 2010, which was attached to the demurrer. The license certified the Hospital as
a general acute care hospital with a capacity of 293 beds. The Hospital also asked
the court to take judicial notice of, inter alia, California Code of Regulations, Title
22, section 70829, which provides that hospitals “with a licensed bed capacity of
100 or more shall maintain a well-ventilated morgue with autopsy facilities” (subd.
b), and “[r]efrigerated compartments shall be maintained if human remains are
held unembalmed” with an air temperature not higher than 45 degrees Fahrenheit
(subd. (c)).
Based on these facts subject to judicial notice, the Hospital argued that the
injuries to the decedent’s remains occurred during the provision of services for
which the Hospital was licensed. In particular, the first amended complaint alleged
that the injuries occurred when the remains were transported to or manipulated at
the Hospital’s morgue. Because as a condition of its license the Hospital was
required to maintain a refrigerated morgue, the Hospital argued that the facial
injuries to the remains inflicted on the way to or in the morgue necessarily fell
within the scope of services the Hospital was required to perform. Thus, the third
cause of action was governed by section 340.5, and was barred because the claim
was filed in the instant action more than one year after discovery of the decedent’s
facial disfigurement.

10
 In opposition to the Hospital’s demurrer, plaintiffs argued that section 340.5
did not apply to the Hospital’s mishandling of the decedent’s remains, because that
statute only applies to actions for death or injury inflicted on the patient of the
health care provider, whereas here the decedent was dead when the facial injuries
occurred.

Stipulation Between Plaintiffs and Dr. Plosay
Before the hearing on the Hospital’s demurrer, plaintiffs and Dr. Plosay
entered a stipulation in which they agreed that the trial court’s earlier ruling
sustaining without leave to amend the Hospital’s demurrer to the medical
negligence and wrongful death causes of action applied “with equal force and
effect” to Dr. Plosay. Plaintiffs agreed to dismiss those claims against Dr. Plosay,
and also to dismiss the third cause of action for negligence as to him. Pursuant to
the stipulation, before the hearing on the Hospital’s demurrer, the court entered an
order of dismissal as to all claims against Dr. Plosay.

Ruling on the Hospital’s Demurrer
The trial court sustained the Hospital’s demurrer without leave to amend and
entered an order of dismissal as to the entire action as to the Hospital. The court
reasoned that plaintiffs were alleging that the Hospital’s negligence in the handling
of the decedent’s remains proximately caused emotional injury to them, and that
such injury was encompassed by section 340.5.

DISCUSSION
“Because this case comes to us on a demurrer for failure to state a cause of
action, we accept as true the well-pleaded allegations in plaintiffs’ . . . complaint.

11
‘“We treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.] We also consider
matters which may be judicially noticed.” [Citation.] Further, we give the
complaint a reasonable interpretation, reading it as a whole and its parts in their
context. [Citation]’ [Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1,
6.) Only when the facts alleged, or matters subject to judicial notice, demonstrate
as a matter of law that the statute of limitations has expired can a demurrer be
sustained on that ground. (Aryeh v. Canon Business Solutions, Inc. (2013) 55
Cal.4th 1185, 1191.)

I. The Causes of Action for Medical Negligence and Wrongful Death
The trial court sustained the Hospital’s demurrer to the medical negligence
and wrongful death claims alleged in plaintiff’s complaint on the ground that they
were barred by the one-year limitation period of section 340.5. Plaintiffs contend
that the court erred, because, as alleged in the complaint, they could not have
reasonably discovered a factual basis for those claims before December 8, 2011,
when their retained expert, on review of evidence obtained in discovery in the
mutilation action, opined that the decedent’s remains were not disfigured after
death, but rather that the decedent was alive when placed in the Hospital’s morgue
and injured herself trying to escape. Taking the allegations of the complaint as
true, we conclude that it cannot be said as a matter of law that the one-year period
began running on or about July 26, 2010, the date of the decedent’s death. First,
the injury that plaintiffs reasonably suspected at that time was not the same injury
underlying the medical negligence and wrongful death claims. Second, the facts
alleged in the complaint do not permit the conclusion, as a matter of law, that a
reasonable investigation of all potential causes of the injury plaintiffs suspected at

12
the time of the decedent’s death would have uncovered the factual basis for the
negligence and wrongful death claims before December 8, 2011, the date
plaintiffs’ expert first rendered his opinion. Therefore, the trial court erred in
sustaining the Hospital’s demurrer to these two causes of action.
In discussing this issue, we note (as previously discussed) that Dr. Plosay
never demurred to the claims on this ground; the claims were dismissed against
him based on a stipulation that the trial court’s ruling on the Hospital’s demurrer
applied equally to him. Thus, on appeal Dr. Plosay can raise only issues presented
by the Hospital’s demurrer, and his respondent’s brief on appeal essentially mirrors
the Hospital’s. Therefore, we refer only to contentions made by the Hospital on
appeal, with the understanding that Dr. Plosay makes the same arguments.
Section 340.5, a provision of the Medical Injury Compensation Reform Act
of 1975 (MICRA), provides in relevant part that “[i]n 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.”
(Italics added.) Plaintiffs do not dispute that section 340.5 applies to the medical
negligence and wrongful death claims.
The one-year limitation period of section 340.5 is a codification of the
discovery rule, under which a cause of action accrues when the plaintiff is aware,
or reasonably should be aware, of “injury,” a term of art which means “both the
negligent cause and the damaging effect of the alleged wrongful act.” (Steketee v.
Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 54; see Knowles v. Superior
Court (2004) 118 Cal.App.4th 1290, 1298-1299 (Knowles) [general discovery rule
analysis of, inter alia, Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109-1114

13
(Jolly) and Norgart, supra, at pp. 405-408, apply to section 340.5].) “A plaintiff
has reason to discover a cause of action when he or she ‘has reason at least to
suspect a factual basis for its elements.’ [Citations.] Under the discovery rule,
suspicion of one or more of the elements of a cause of action, coupled with
knowledge of any remaining elements, will generally trigger the statute of
limitations period. [Citations.] Norgart[, supra,] explained that by discussing the
discovery rule in terms of a plaintiff’s suspicion of ‘elements’ of a cause of action,
it was referring to the ‘generic’ elements of wrongdoing, causation, and harm.
[Citation.] In so using the term ‘elements,’ we do not take a hypertechnical
approach to the application of the discovery rule. Rather than examining whether
the plaintiffs suspect facts supporting each specific legal element of a particular
cause of action, we look to whether the plaintiffs have reason to at least suspect
that a type of wrongdoing has injured them.” (Fox v. Ethicon Endo-Surgery, Inc.
(2005) 35 Cal.4th 797, 807 (Fox).)
The limits of the discovery rule have been restated in many decisions. (See,
e.g., Fox, supra, 35 Cal.4th at p. 807; Norgart, supra, 21 Cal.4th at pp. 397-399;
Jolly, supra, 44 Cal.3d at pp. 1109-1114.) As summarized in Fox, supra, 35
Cal.4th at pages 808-809, the various restatements of the principles lead to a
straightforward conclusion: “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. In order to adequately allege facts supporting a theory of delayed discovery,
the plaintiff must plead that, despite diligent investigation of the circumstances of

14
the injury, he or she could not have reasonably discovered facts supporting the
cause of action within the applicable statute of limitations period.”
Here, the Hospital contends that the one-year limitation period for the
medical negligence and wrongful death claims began running on or about July 26,
2010, because by that date plaintiffs: (1) knew the decedent had died; (2) knew
that her face had been disfigured; (3) knew that they had suffered emotional
distress from the disfigurement; and (4) suspected wrongdoing by the Hospital.
Although not so explicitly phrased by the Hospital, two alternative premises
underlie the Hospital’s argument.
First, the Hospital assumes that, regardless of the plaintiffs’ duty to conduct
a reasonable investigation, these listed facts of wrongdoing, causation, and harm
(Norgart, supra, 21 Cal.4th at p. 397) necessarily constitute the same injury that
supports the medical negligence and wrongful death causes of action. Thus, in the
Hospital’s telling, plaintiffs were aware of their “injury” on or about July 26, 2010,
and the statute began to run at that time; whatever plaintiffs could or could not
have discovered by a reasonable investigation after that is irrelevant to when the
limitation period began. (See Kleefeld v. Superior Court (1994) 25 Cal.App.4th
1680, 1684 [“a plaintiff’s diligence after he has become suspicious of wrongdoing
is not relevant to the running of the statute of limitations” and “is only relevant to
determine when he should have suspected wrongdoing”].) Second, the Hospital
implicitly contends, in the alternative, that even if the injury as of July 26, 2010,
was not the same as that underlying the medical negligence and wrongful death
claims, those claims are still barred because within one year plaintiffs could have
discovered through reasonable investigation the factual basis for the claims.
On both counts, the Hospital is wrong. The generic elements – wrongdoing,
causation, and harm (Norgart, supra, 21 Cal.4th at p. 397) – constituting the injury

15
that plaintiffs reasonably suspected had occurred on or about July 26, 2010 are
entirely different from those underlying the medical negligence and wrongful death
claims. The injury that plaintiffs reasonably suspected had occurred on or about
July 26, 2010, consisted of the mishandling of the decedent’s body after death (the
wrongdoing), which caused disfigurement to the decedent’s face (causation), and
plaintiffs’ resultant emotional distress upon learning of those post-mortem injuries
(the harm). By contrast, the medical negligence and wrongful death claims are
based on a wholly different injury raised by diametrically opposed facts. The
wrongdoing element of both relates not to mishandling the decedent’s remains, but
to prematurely declaring her dead and having her placed in the morgue while still
alive. The causation element of both relates not to causing post-mortem
disfigurement of the decedent’s face, but to causing her to freeze to death in the
morgue. The harm element of both has nothing to do with emotional distress from
knowing of or observing post-mortem injuries. Assuming (without deciding) that
the medical negligence claim is a proper survivorship action – meaning a claim
that belonged to the decedent but survived her death (Adams v. Superior Court
(2011) 196 Cal.App.4th 71, 78) – the generic, nontechnical element of harm in that
claim is harm caused to the decedent, not harm (emotional or otherwise) caused to
plaintiffs.8 As for the wrongful death claim, the relevant harm is the harm which
the death caused to the plaintiffs as the decedents’ heirs – a distinct harm, different

8
“In the typical survivor action, the damages recoverable by a personal
representative or successor in interest on a decedent’s cause of action are limited by
statute to ‘the loss or damage that the decedent sustained or incurred before death,
including any penalties or punitive or exemplary damages that the decedent would have
been entitled to recover had the decedent lived, and do not include damages for pain,
suffering, or disfigurement.’” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th
1256, 1264-1265 (Quiroz), quoting section 377.34, italics omitted.)

16
in kind, from emotional distress that might be caused by knowing of or observing
the disfiguring of the decedent’s remains after death.9 In short, the generic
elements (Norgart, supra, 21 Cal.4th at p. 397) of the injury plaintiffs suspected on
or about July 26, 2010, cannot reasonably be equated to the generic elements of the
injury underlying the medical negligence and wrongful death claims.
As we conclude below, in section II of our Discussion, we agree with the
Hospital’s contention that the alleged negligence in mishandling the decedent’s
remains, causing disfiguring injuries, is “professional negligence” within the
meaning of section 340.5, subdivision (2). But, contrary to the Hospital’s
argument, that conclusion does not mean that plaintiffs’ suspicion of such
wrongdoing commenced the limitation period for the medical negligence and
wrongful death claims. The Hospital contends that those claims merely embody a
different theory of liability under the discovery rule, not a distinct type of
wrongdoing. The Hospital’s argument, however, ignores the fundamental point
that it is the suspicion of the factual basis of wrongdoing that commences the
limitation period under the discovery rule. Obviously, the factual basis of the
wrongdoing that underlies the medical negligence and wrongful death claims
(prematurely declaring the decedent dead and placing her in the morgue while
alive) is completely different from the factual basis of the wrongdoing plaintiffs

9
“Damages awarded to an heir in a wrongful death action are in the nature of
compensation for personal injury to the heir. [Citation.] ‘A plaintiff in a wrongful death
action is entitled to recover damages for his own pecuniary loss, which may include
(1) the loss of the decedent’s financial support, services, training and advice, and (2) the
pecuniary value of the decedent’s society and companionship—but he may not recover
for such things as the grief or sorrow attendant upon the death of a loved one, or for his
sad emotions, or for the sentimental value of the loss. [Citations.]’ [Citation.] ‘The
damages recoverable in [wrongful death] are expressly limited to those not recoverable in
a survival action under Code of Civil Procedure section 377.34. [Citations.]’
[Citations.]” (Quiroz, supra, 140 Cal.App.4th at p. 1264, fn. omitted.)

17
suspected as of July 26, 2010 (mishandling the decedent’s remains, causing
disfiguring injuries after death). The difference is not in the theories of liability,
but in the essential suspected facts. In short, suspected wrongdoing in handling the
decedent’s remains after death is not the same as suspected wrongdoing in causing
her death.
Thus, the ultimate question is whether it can be said, as a matter of law, that
through a reasonable investigation of all the potential causes of the injury
suspected on or about July 26, 2010, plaintiffs would have discovered within one
year the factual basis for the medical negligence and wrongful death causes of
action. (See Fox, supra, 35 Cal.4th at p. 809.) Nothing in the complaint compels
that conclusion as a matter of law.
According to the complaint, the decedent was declared dead by Dr. Plosay
and the Hospital staff, and the body was laid out for viewing by the family. No
alleged facts, or inferences compelled from those facts, suggest that plaintiffs’
observation of the body should have led them to suspect that the decedent was still
alive and that Dr. Plosay and the Hospital staff had prematurely declared her dead.
Similarly, no alleged facts, or inferences compelled from those facts, suggest that
anything about the discovery of the body lying face down in the refrigerated
compartment of the Hospital morgue or the nature of the disfiguring injuries
observed by the mortuary workers should have led plaintiffs to suspect that the
decedent was alive when placed in the morgue compartment, that she had frozen to
death there, or that the disfiguring injuries observed on the body occurred while the
decedent was still alive. Moreover, the decedent’s death certificate (incorporated
into the survivorship declaration of Guadalupe Arroyo and attached to the
complaint) later certified that the decedent died on July 26, 2010 at the Hospital,

18
and that the immediate cause of death was cardiac arrest, with subsidiary causes of
acute myocardial infarction and hypertension.
Based on the facts in the complaint, read as a whole, plaintiffs had
absolutely no reason to suspect that the decedent was alive rather than dead when
placed in the Hospital morgue and when the disfiguring injuries occurred, and thus
had no reason to suspect or investigate potential wrongdoing by the Hospital or Dr.
Plosay in prematurely declaring the decedent dead. While it is true that “[i]t is a
plaintiff’s suspicion of negligence, rather than an expert’s opinion, that triggers the
limitation period,” (Knowles, supra, 118 Cal.App.4th at p. 1300), here plaintiffs
had no reasonable suspicion of the wrongdoing later disclosed by their expert in
the mutilation action. And nothing on the face of the complaint (or matters of
which we might take judicial notice) compels the conclusion that a reasonable
investigation by plaintiffs would have produced the opinion reached by plaintiffs’
expert in the mutilation cause of action – that the decedent’s injuries were pre-
mortem and that she froze to death in the Hospital morgue – sooner than December
8, 2011.
The Hospital analogizes the present case to Dolan v. Borelli (1993) 13
Cal.App.4th 816 (Dolan), but that decision is inapposite. In Dolan, the defendant
surgeon performed surgery in April 1985 to alleviate the plaintiff’s carpal tunnel
syndrome in her right hand. (Id. at p. 820.) By June 1985, even though the
defendant had told her that he expected the surgery would relieve her pain by then,
the plaintiff’s symptoms were significantly worse than before surgery, and she
believed that the defendant had performed the surgery improperly. (Ibid.) In
February 1986, she consulted an attorney and complained that the defendant had
done something wrong. In June 1986, another surgeon performed surgery on the
plaintiff’s hand, and discovered that the prior surgery did not release the right

19
carpal tunnel ligament. Plaintiff did not file suit against the defendant until August
1987. (Ibid.)
The Court of Appeal affirmed the trial court’s grant of summary judgment
on the ground that the one-year limitation period of section 340.5 began to run no
later than February 1986, when the plaintiff consulted an attorney, and therefore
the filing of the lawsuit more than one year later in August 1987 was untimely.
(Dolan, supra, 13 Cal.App.4th at p. 823.) The appellate court rejected the
plaintiff’s contention that the negligence alleged in the complaint – defendant’s
failure to release the carpal tunnel ligament – could not reasonably have been
discovered until the second surgery in June 1986, which disclosed that specific
condition. (Ibid.) The court reasoned, as here relevant, that “the essential inquiry
is when did [plaintiff] suspect [defendant] was negligent, not when did she learn
precisely how he was negligent.” (Id. at p. 824.)
The Hospital’s reliance on Dolan exposes the essential flaw in the Hospital’s
reasoning. In Dolan, the evidence showed as a matter of law that the wrongdoing,
with its resultant causation and harm, for which the plaintiff was suing
(defendant’s negligent performance of the first surgery on plaintiff’s hand,
resulting in failure to release the carpal tunnel ligament) was the same wrongdoing,
causation, and harm which she reasonably suspected had occurred no later than
February 1986 (wrongdoing in the performance of the first surgery, resulting in
exacerbated pain). Thus, the one-year limitation period for that injury necessarily
commenced in February 1986, and it did not matter whether plaintiff then knew the
precise factual parameters of the defendant’s negligence.
In the present case, as we have explained, the injury that plaintiffs
reasonably suspected had occurred on or about July 26, 2010 (the mishandling of
the decedent’s remains after death, causing disfiguring injuries and resultant

20
emotional distress to plaintiffs) was not the same injury for which plaintiffs were
suing in the medical negligence and wrongful death causes of action (the
Hospital’s and Dr. Plosay’s prematurely declaring the decedent dead and having
her placed in a refrigerated compartment in the morgue while still alive where she
froze to death, resulting in distinct harm to the decedent and to plaintiffs). The
question here, unlike Dolan, is whether, as a matter of law, a reasonable
investigation of all potential causes of the injury suspected on or about July 26,
2010, would have uncovered within one year a factual basis for the medical
negligence and wrongful death causes of action. For the reasons we have stated,
we conclude that it would not. Therefore, we cannot say as a matter of law that the
one-year limitation period was triggered on or about July 26, 2010, and that it
commenced any earlier than December 8, 2011, the date plaintiffs’ expert in the
mutilation action offered his opinion. Thus, the filing of this action on May 3,
2012 was within the one-year limitation period of section 340.5. It follows that the
trial court erred in sustaining the demurrer to the medical negligence and wrongful
death causes of action, and we reverse the dismissal of those claims as to the
Hospital and Dr. Plosay.

II. Negligence Cause of Action
Plaintiffs contend that the trial court erred in sustaining the Hospital’s
demurrer to the third cause of action for negligence on the ground that it, too, was
barred by the one-year limitation period of section 340.5. According to plaintiffs,
section 340.5 does not apply to this claim.
At the outset, we note that although the complaint alleged this claim against
both the Hospital and Dr. Plosay, plaintiffs entered a stipulated dismissal of the
claim as to Dr. Plosay before the hearing on the Hospital’s demurrer to the claim.

21
Plaintiffs do not contend on appeal that the claim should be revived as to Dr.
Plosay, and thus we affirm the judgment of dismissal as to him. For the reasons
stated below, we also affirm the judgment of dismissal as to the Hospital.
Section 340.5 applies to actions “for injury or death against a health care
provider based upon such person’s alleged professional negligence.” Within the
meaning of the statue, the definition of “health care provider” includes “any . . .
health facility . . . licensed pursuant to Division 2 (commencing with Section 1200)
of the Health and Safety Code.” (§ 340.5, subd. (1).) In connection with its
demurrer to the complaint, the Hospital asked the trial court to take judicial notice
of a copy of the Hospital’s license issued by the California Department of Public
Health in effect at the time of the decedent’s death in July 2010, under which the
Hospital was certified as, among other things, a general acute care hospital with a
capacity of 293 beds.10 The Hospital also asked the court to take judicial notice of,
inter alia, California Code of Regulations, Title 22, section 70829, which provides
that hospitals “with a licensed bed capacity of 100 or more shall maintain a well-
ventilated morgue with autopsy facilities” (subd. b), and “[r]efrigerated
compartments shall be maintained if human remains are held unembalmed” with
an air temperature not higher than 45 degrees Fahrenheit (subd. (c)).
Although the record on appeal does not contain an express ruling on the
request for judicial notice, plaintiffs concede that the trial court implicitly granted
the request. Plaintiffs contend, however, that the court erred in doing so. Of
course, in ruling on a demurrer, the court may consider facts that are properly

10
As here relevant, “‘[g]eneral acute care hospital’ means a health facility having a
duly constituted governing body with overall administrative and professional
responsibility and an organized medical staff that provides 24-hour inpatient care,
including the following basic services: medical, nursing, surgical, anesthesia, laboratory,
radiology, pharmacy, and dietary services.” (Health & Saf. Code, § 1250, subd. (a).)

22
subject to judicial notice, and a “‘“complaint otherwise good on its face is subject
to demurrer when facts judicially noticed render it defective.” [Citation.]’
[Citation.]” (Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6.)
Here, the Hospital’s license issued by the Department of Public Health was
properly subject to judicial notice under Evidence Code section 452, subdivision
(c), which permits judicial notice of “[o]fficial acts of . . . executive . . .
departments . . . of any state of the United States.” Similarly, Evidence Code
section 452, subdivision (b), permitted the court to take judicial notice of the
California Code of Regulations, Title 22, section 70829, as a “[r]egulations . . .
issued by or under the authority of . . . [a] public entity in the United States.”
Together, the facts disclosed by judicial notice showed that by virtue of being a
licensed general acute care hospital with a capacity of more than 100 beds, the
Hospital was required by administrative regulation to maintain a morgue with
refrigerated compartments.
Section 340.5 defines “professional negligence” as “a negligent act or
omission by a health care provider in the rendering of professional services, which
act or omission is the proximate cause of a personal injury or wrongful death,
provided that such services are within the scope of services for which the provider
is licensed and which are not within any restriction imposed by the licensing
agency or licensed hospital.” (§ 340.5, subd. (2), italics added.) The term
“professional negligence” encompasses actions in which “the injury for which
damages are sought is directly related to the professional services provided by the
health care provider” (Central Pathology Service Medical Clinic, Inc. v. Superior
Court (1992) 3 Cal.4th 181, 191 (Central Pathology)) or directly related to “a
matter that is an ordinary and usual part of medical professional services.” (Id. at
p. 193.) “[C]ourts have broadly construed ‘professional negligence’ to mean

23
negligence occurring during the rendering of services for which the health care
provider is licensed.” (Canister v. Emergency Ambulance Service, Inc. (2008) 160
Cal.App.4th 388, 406-407 (Canister) [holding that “[a]n EMT’s operation of an
ambulance qualifies as professional negligence when the EMT is rendering
services for which he or she is licensed or when a claim for damages is directly
related to the provision of ambulance services by the EMT”].)11
Here, the negligence claim alleged that the decedent was taken to the
Hospital and treated for cardiac arrest, acute myocardial infarction, and
hypertension; that shortly after arrival she was pronounced dead; and that (on
information and belief) “[d]efendants and each of them, while transporting
DECEDENT’S body to [the Hospital’s] morgue, or while manipulating
DECEDENT’S remains after said transport, negligently placed DECEDENT in a
face down position, damaged, lacerated and/or contused DECEDENT’S nose, and
various other parts of her head and face.” Given that the Hospital’s licensed status
as a general acute care hospital with a capacity of more than 100 beds required it
(by the applicable administrative regulation) to maintain a morgue with
refrigerated compartments, the transportation of a deceased patients’ remains to the

11
See also the following cases cited in Canister, supra, 160 Cal.App.4th at pages
406-407, as examples of professional negligence: “Palmer v. Superior Court (2002) 103
Cal.App.4th 953, 957 [negligent recommendation in utilization review]; Johnson v.
Superior Court [(2002) 101 Cal.App.4th 869, 884–885] [negligence in interviewing and
approving sperm bank donor]; Bellamy v. Appellate Department (1996) 50 Cal.App.4th
797, 808 [failure to secure rolling X-ray table]; Williams v. Superior Court [(1994) 30
Cal.App.4th 318, 323–324] [failure to warn of violent patient]; Bell v. Sharp Cabrillo
Hospital (1989) 212 Cal.App.3d 1034, 1051–1052 [failure to screen adequately
competency of medical staff]; Murillo v. Good Samaritan Hospital [(1979) 99
Cal.App.3d 50, 57] [leaving patient unattended and unrestrained on gurney]; see also
Taylor v. U.S. [(9th Cir. 1987) 821 F.2d 1428, 1432] [negligent disconnection of
ventilator, ‘regardless of whether separation was caused by the ill-considered decision of
a physician or the accidental bump of a janitor’s broom’].)”
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morgue, and the placement of the remains in a refrigerated compartment,
necessarily fall within the scope of the services for which the Hospital is licensed.
In other words, such conduct is undoubtedly “an ordinary and usual part of [its]
medical professional services.” (Central Pathology, supra, 3 Cal.4th at p. 193.)
Thus, on the face of the complaint and the facts properly subject to judicial notice,
plaintiffs’ negligence claim based on the Hospital’s conduct causing disfigurement
to the decedent’s remains is directly related to the professional services provided
by the Hospital (id. at p. 191) and constitutes professional negligence.
Plaintiffs contend that the Hospital’s alleged negligence does not meet the
definition of professional negligence, because the decedent was dead when the
body was mishandled, and thus the conduct was not, within the meaning of section
340.5, subdivision (2), “the proximate cause of a personal injury or wrongful
death.” (Italics added.) According to plaintiffs, section 340.5, subdivision (2),
must be construed to refer only to personal injury or wrongful death inflicted on
the patient, and not to injuries suffered by third parties as a result of a health care
provider’s negligence in rendering services for which it is licensed. However,
“[b]y their terms, MICRA statutes apply to negligent conduct by a health care
provider in the rendering of professional services and is not limited to actions by
the recipient of professional services. [Citations.] Indeed, MICRA limitations
apply ‘to any foreseeable injured party, including patients, business invitees, staff
members or visitors, provided the injuries alleged arose out of professional
negligence.’ [Citation.]” (Canister, supra, 160 Cal.App.4th at p. 407.) Here, it is
foreseeable that plaintiffs – the husband and children of the decedent – would
suffer emotional distress from the disfigurement of the decedent’s remains,
incapable of being masked by the morgue, caused by the Hospital’s negligent

25
handling of the remains on the way to, or in, the Hospital’s morgue. Thus,
plaintiffs’ negligence claim is covered by section 340.5
“In order for the bar of the statute of limitations to be raised by demurrer, the
defect must clearly and affirmatively appear on the face of the complaint; it is not
enough that the complaint shows merely that the action may be barred.”
(McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874.)
Here, the complaint is somewhat ambiguous as to when the limitations period
began to run on the negligence claim, in that it does not specify a date on which
plaintiffs first learned of the disfigurement of the decedent’s remains and suspected
wrongdoing by the Hospital. It appears that the discovery occurred soon after the
decedent was pronounced dead on July 26, 2010, and the mortuary selected by the
family arrived at the Hospital to pick up the remains.
Regardless, there can be no doubt that plaintiffs were on notice of facts
starting the running of the one-year limitation period of section 340.5 by the time
they filed the mutilation action against the Hospital on January 31, 2011. They
dismissed that action without prejudice on January 20, 2012, but the pendency of
the action did not toll the limitation period. (See Wood v. Elling Corp. (1977) 20
Cal.3d 353, 359 [absent applicable statute, the limitation period is not reduced by
the “‘pendency of an action in which [plaintiff] sought to have the matter
adjudicated, but which was dismissed without prejudice to him.’”].) Plaintiffs filed
the instant action on May 2, 2012, more than one year after the mutilation action.
Thus, it was untimely under section 340.5, and no amendment to the pleading can
cure the defect. Therefore, the trial court properly sustained the Hospital’s
demurrer to the negligence claim without leave to amend.

26
 DISPOSITION
The separate judgments of dismissal are reversed as to the causes of
action for medical negligence and wrongful death against the Hospital and Dr.
Plosay, and affirmed as to the cause of action for negligence. The parties shall
bear their own costs on appeal.
CERTIFIED FOR PUBLICATION

WILLHITE, J.

We concur:

EPSTEIN, P. J.

EDMON, J.*

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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