Smith v. Yamamoto CA2/8

Filed 1/7/21 Smith v. Yamamoto CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

SHENITHA SMITH et al., B296961

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC635054)
v.

JON YAMAMOTO,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County. Mark C. Kim, Judge. Affirmed.
Law Offices of Neil M. Howard, Neil M. Howard; Esner,
Chang & Boyer, Stuart B. Esner and Kevin K. Nguyen for
Plaintiffs and Appellants.
Cole Pedroza, Kenneth R. Pedroza, Alysia B. Carroll,
Danica Lam; Law + Brandmeyer and Yuk K. Law for Defendant
and Respondent.
_____________________________
 Appellants Shenitha Smith and Richard Fort’e sued
Dr. Jon Yamamoto for negligence and wrongful death in
connection with his treatment of their newborn daughter. A jury
found Appellants’ claims against Yamamoto were time-barred
under Code of Civil Procedure section 340.5.1 Appellants contend
the trial court erred when it instructed the jury with Judicial
Council of California Civil Jury Instructions No. 555 (CACI 555).
We conclude the trial court did not err because CACI 555 is an
accurate statement of the law regarding the statute of limitations
in section 340.5. We affirm the judgment.
FACTS
On July 5, 2014, Smith was admitted to Providence Little
Company of Mary Medical Center–San Pedro (San Pedro Medical
Center) to give birth to her daughter, Ri’nitha Fort’e, whom
Appellants called Sade. Sade was transferred to Providence
Little Company of Mary Medical Center–Torrance (Torrance
Medical Center) shortly after her birth due to critical respiratory
issues.
Yamamoto is a neonatologist at Torrance Medical Center.
He cared for Sade after her transfer. He updated Appellants as
to Sade’s condition throughout the time she was under his care.
Sade died on the morning of July 6, 2014.
On April 28, 2015, Appellants timely sued San Pedro
Medical Center and the obstetrician who treated Smith, alleging
medical malpractice and wrongful death. On June 25, 2015,
Appellants filed a doe amendment adding Torrance Medical

1 All further section references are to the Code of Civil
Procedure unless otherwise specified.

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Center as a defendant. Appellants settled the first lawsuit with
all three defendants.
On September 30, 2016, Appellants filed suit against
Yamamoto, alleging his negligent treatment of Sade resulted in
her death.2 Among other things, Yamamoto argued Appellants’
claims were time-barred. The trial was bifurcated to allow the
statute of limitations issue to be tried first.
A jury trial commenced on February 14, 2019, on the
statute of limitations issue. Yamamoto described the
circumstances which led to Sade’s transfer to Torrance Medical
Center. He also testified he introduced himself to Appellants,
updated them about Sade’s condition multiple times, and
received their permission to perform various procedures to help
her breathe. After her death, he told them an autopsy might help
establish a cause of death that was not immediately apparent,
such as a congenital defect. Appellants consented to an autopsy.
Appellants’ attorney, Neil Howard, testified the first
lawsuit included a personal injury claim by Smith as well as a
wrongful death claim arising from Sade’s death. Appellants
initially sued San Pedro Medical Center and Smith’s obstetrician
because they believed they provided negligent prenatal, labor,
and delivery care to Smith. In the first lawsuit, Howard
discovered and informed Appellants that some of Sade’s organs
were retained by Torrance Medical Center during the autopsy.
As a result, Appellants authorized him to add Torrance Medical
Center to the lawsuit.

2 Appellants also named Dr. Soledad Austin, a doctor at
San Pedro Medical Center, in the second lawsuit. Austin’s
motion for summary judgment was unopposed and granted.
She is not a party to this appeal.

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 Howard further testified he did not have facts supporting
wrongful conduct by Yamamoto until August 2016, one year after
the initial lawsuit was filed. He explained he first learned of a
potential claim against Yamamoto when he hired a neonatal
expert to counter the summary judgment motion filed by the
defendants in the initial lawsuit. That expert indicated Sade
would likely have survived if not for Yamamoto’s negligence.
The parties initially stipulated to a modified version of
CACI 555. CACI 555 reads: “[Name of defendant] contends that
[name of plaintiff]’s lawsuit was not filed within the time set by
law. To succeed on this defense, [name of defendant] must prove
that before [insert date one year before date of filing], [name of
plaintiff] discovered, or knew of facts that would have caused a
reasonable person to suspect, that [he/she/nonbinary pronoun]
had suffered harm that was caused by someone’s wrongful
conduct.” (Italics and bold omitted.)
The parties modified CACI 555 to substitute the phrase
“someone’s wrongful conduct” for “Dr. Yamamoto’s wrongful
conduct” such that the last sentence read: “To succeed on this
defense, Dr. Yamamoto must prove that on or before July 6, 2015,
Shenitha Smith and Richard Fort’[e] discovered, or knew of facts
that would have caused a reasonable person to suspect, that they
had suffered harm that was caused by Dr. Yamamoto’s wrongful
conduct.”
Prior to closing arguments, however, Yamamoto requested
the court change the instruction back to its original phrasing:
“Dr. Yamamoto contends that Shenitha Smith and Richard
Fort’e’s lawsuit was not filed within the time set by law. To
succeed on this defense, Dr. Yamamoto must prove that on or
before July 6, 2015, Shenitha Smith and Richard Fort’e

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discovered, or knew of facts that would have caused a reasonable
person to suspect, that they had suffered harm that was
someone’s wrongful conduct.” Yamamoto’s proposed verdict form
tracked CACI 555.
Appellants objected to Yamamoto’s proposed instruction
and special verdict form, arguing the instruction should
specifically reference Yamamoto’s conduct because if it simply
read “someone’s wrongful conduct,” the jury could infer San
Pedro Medical Center’s wrongful conduct triggered the
limitations period as to the claims against Yamamoto.
The trial court accepted Yamamoto’s instruction and
special verdict form, observing CACI 555 did not allow for
alternate language to replace “someone’s wrongful conduct” with
the name of the specific defendant. The court acknowledged
Appellants’ position, however, and prohibited Yamamoto from
arguing at closing that Appellants had notice or could reasonably
suspect Yamamoto was negligent simply from their knowledge of
wrongful conduct by San Pedro Medical Center or Smith’s
obstetrician. The court nevertheless expressly allowed
Yamamoto to argue Appellants named Torrance Medical Center
in the first lawsuit, not because of the autopsy results, but
because they knew Sade was provided negligent care while she
was there.
The jury found against Appellants on the statute of
limitations issue, and judgment was entered on March 6, 2019.
They timely appealed.
DISCUSSION
Appellants argue CACI 555 “preordained” a defense verdict
because it improperly allowed Yamamoto to assert Appellants
were on notice that Sade’s death was the result of “someone’s

5
wrongful conduct” at the time they retained counsel and filed the
first lawsuit. According to Appellants, their knowledge that
Smith was treated negligently at San Pedro Medical Center did
not put them on notice of Yamamoto’s negligence in treating Sade
at Torrance Medical Center. Appellants rely on the Supreme
Court’s opinion in Fox v. Ethicon Endo-Surgery, Inc. (2005)
35 Cal.4th 797 (Fox) to argue CACI 555 does not apply to cases,
such as this one, that involve separate acts of wrongdoing.
We conclude the trial court properly instructed the jury
with CACI 555 because it is an accurate statement of the law.
Moreover, Fox has not invalidated the “someone’s wrongful
conduct” language found in CACI 555. Even if it did, Fox is
inapplicable to this case because Appellants’ claims do not
encompass separate types of wrongdoing as identified in Fox.
I. Standard of Review
A jury instruction should be an accurate statement of the
law; as brief and concise as possible; understandable to the
average juror; and neutral, unbiased and free of argument.
(Morales v. 22nd Dist. Agricultural Assn. (2016) 1 Cal.App.5th
504, 526–527; Cal. Rules of Court, rule 2.1050(e).) A party is
entitled upon request to correct, nonargumentative instructions
on every theory of the case advanced by him which is supported
by substantial evidence. (Ibid.) “ ‘[T]he duty of the court is fully
discharged if the instructions given by the court embrace all the
points of the law arising in the case. [Citations.] [¶] A party is
not entitled to have the jury instructed in any particular
phraseology and may not complain on the ground that his
requested instructions are refused if the court correctly gives the
substance of the law applicable to the case.’ ” (Davis v. Honeywell
Internat. Inc. (2016) 245 Cal.App.4th 477, 495.)

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 “We review de novo whether a challenged instruction
correctly states the law.” (Bowman v. Wyatt (2010) 186
Cal.App.4th 286, 298.) Appellate court opinions may be a source
for jury instructions. (Suman v. Superior Court (1995) 39
Cal.App.4th 1309, 1321–1322.) The use of standard instructions
approved by the Judicial Council, such as CACI, is “strongly
encouraged.” (Cal. Rules of Court, rule 2.1050(e).) “If the latest
edition of the jury instructions approved by the Judicial Council
contains an instruction applicable to a case and the trial judge
determines that the jury should be instructed on the subject, it is
recommended that the judge use the Judicial Council instruction
unless he or she finds that a different instruction would more
accurately state the law and be understood by jurors. Whenever
the latest edition of the Judicial Council jury instructions does
not contain an instruction on a subject on which the trial judge
determines that the jury should be instructed, or when a Judicial
Council instruction cannot be modified to submit the issue
properly, the instruction given on that subject should be accurate,
brief, understandable, impartial, and free from argument.”
(Ibid.) However, standard jury instructions “ ‘are not themselves
the law, and are not authority to establish legal propositions or
precedent.’ [Citation.]” (People v. Diaz (2015) 60 Cal.4th 1176,
1187, fn. 6.)
II. The Statute of Limitations for Medical Malpractice
Cases
In medical malpractice cases, a plaintiff must commence an
action within “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.” (§ 340.5.)

7
 Accrual under the “delayed discovery rule” occurs as of the
date the plaintiff suspects the injury, the cause of injury, and the
tortious nature of the conduct causing the injury. (Fox, supra,
35 Cal.4th at p. 808; Gutierrez v. Mofid (1985) 39 Cal.3d 892,
896.) “[I]n 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.” (Fox, supra, at pp. 808–809.)
III. CACI 555 Is An Accurate Statement of the Law
Appellants argue CACI 555 improperly provides it is the
discovery or knowledge of “someone’s wrongful conduct,” rather
than the specific defendant’s conduct, that triggers the
limitations period. We are not persuaded.
The phrase “someone’s wrongful conduct” tracks the
Supreme Court’s holding in Jolly v. Eli Lilly & Co. (1988)
44 Cal.3d 1103, 1110 (Jolly). There, the court held that “[u]nder
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.” (Ibid., italics added.)
In Jolly, the plaintiff’s claims were time-barred because she
was aware the defective product caused her injuries as early as
1972, but delayed filing her action until 1981 because she did not
know the identity of its manufacturer. (Jolly, supra, 44 Cal.3d at
pp. 1107–1108.) The Jolly court rejected the notion that a
plaintiff must have knowledge of facts indicating wrongdoing by a

8
particular defendant. (Id. at pp. 1110–1111.) Instead, the
“plaintiff could have filed a timely complaint under section 474,
which allows suit to be filed against a Doe party. From the time
such a complaint is filed, the plaintiff has three years to identify
and serve the defendant. [Citations.] Hence, in the instant case,
plaintiff could have brought a timely Doe action, effectively
enlarging the statute of limitations period for three years.”
(Id. at p. 1118.)
The holding in Jolly has been applied in numerous cases.
(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399 (Norgart) [“the
plaintiff may discover, or have reason to discover, the cause of
action even if he does not suspect, or have reason to suspect, the
identity of the defendant.”]; Bernson v. Browning–Ferris
Industries (1994) 7 Cal.4th 926, 932 [“Aggrieved parties generally
need not know the exact manner in which their injuries were
‘effected, nor the identities of all parties who may have played a
role therein.’ ”]; Knowles v. Superior Court (2004) 118
Cal.App.4th 1290, 1299 (Knowles).)
In Knowles, supra, 118 Cal.App.4th at page 1293, the
decedent underwent two different surgeries on consecutive days
and died three days after the second surgery. (Ibid.) The
decedent’s wife immediately ordered an autopsy, obtained the
medical records, and, along with her children, timely filed suit
against the doctors who performed the second surgery. (Id. at
p. 1294.) During the course of discovery, the plaintiffs’ lawyer
consulted with an expert who opined the doctor who performed
the first surgery, Knowles, may also have been negligent.
Knowles was added to the suit two years after the decedent’s
death. He moved for summary judgment based on expiration of

9
the statute of limitations, and the trial court denied the motion.
(Ibid.)
The appellate court reversed the denial of summary
judgment, holding the statute of limitations against Knowles
commenced as a matter of law shortly after the decedent’s death
because that was when the plaintiffs first suspected medical
negligence caused his death. (Knowles, supra, 118 Cal.App.4th at
pp. 1294, 1298.) While the plaintiffs argued they did not
specifically suspect Knowles was negligent until the expert
opined on it, the court found the cause of action against Knowles
was within the scope of their initial suspicion of medical
negligence: “They knew, or should have known, that Knowles
had performed the initial surgery, and they suspected that some
form of medical malpractice caused [decedent’s] death four days
later.” (Id. at p. 1300.)
The court explained it was not the expert’s opinion but the
plaintiffs’ suspicion of negligence that triggered the limitations
period. (Knowles, supra, 118 Cal.App.4th at p. 1300.) The facts
supported only one conclusion—the limitations period
commenced as to all three surgeons as soon as the decedent
suffered appreciable harm (his death), which caused the plaintiffs
to become suspicious of wrongdoing. (Id. at p. 1301.)
We are persuaded by Jolly and Knowles that CACI 555 is
an accurate statement of the law. As discussed in those cases, a
cause of action does not accrue based on discovery of wrongdoing
by a particular defendant. Instead, the statute of limitations
begins to run in a medical malpractice case when a plaintiff
suspects “someone” has done something wrong to him or her.
(Jolly, supra, 44 Cal.3d at p. 1110.)

10
 Just as in Jolly and Knowles, the cause of action against
Yamamoto was within the scope of Appellants’ initial suspicion of
medical negligence involving Sade’s death, even if Appellants
could not immediately identify all of the tortfeasors involved.
Here, Appellants knew Yamamoto provided care for Sade after
her transfer and they suspected some form of medical
malpractice had caused her death one day after she was born.
Under the holding in Knowles, the limitations period commenced
as soon as Sade suffered appreciable harm, i.e., her death, which
caused Appellants to become suspicious of wrongdoing. At that
point, Appellants were required to investigate all potential causes
of the harm. (Fox, supra, 35 Cal. 4th at p. 808.) “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, supra,
44 Cal.3d at p. 1111.)
We are not persuaded by Appellants’ attempt to invalidate
the reasoning in Knowles. Appellants argue Knowles is unsound
because it relied on Bristol-Myers Squibb Co. v. Superior Court
(1995) 32 Cal.App.4th 959 (Bristol-Meyers), which was
disapproved in Norgart, supra, 21 Cal.4th at page 407 and Fox,
supra, 35 Cal.4th at page 802. Bristol-Myers, supra, at page 966,
held that “[w]hen a plaintiff has cause to sue based on knowledge
or suspicion of negligence the statute starts to run as to all
potential defendants.” The Knowles court explained that in
Bristol-Myers, the “court held that a plaintiff’s suspicion of a
surgeon’s medical malpractice triggers the statute of limitations
for a products liability claim against the manufacturer of
materials used in the surgery. [Citation.] Unlike the products
liability claim at issue in [Bristol–Myers], [the plaintiffs’]
wrongful death causes of action against Knowles were within the

11
scope of their initial suspicion of medical negligence.” (Knowles,
supra, 118 Cal.App.4th at p. 1300.) Thus, Knowles did “not rely
on the imputed discovery doctrine developed in [Bristol–Myers],
to resolve this case.” (Ibid.) Contrary to Appellants’ assertion,
the reasoning in Knowles has not been invalidated by the
Supreme Court and remains good law.
IV. The Supreme Court Did Not Invalidate CACI 555 in
Fox
Neither are we persuaded by Appellants’ argument that
CACI 555, as written, is inapplicable to cases involving two
discrete acts of wrongdoing. According to Appellants, the Fox
court rejected the “someone’s wrongful conduct” standard for
delayed discovery when it rejected the imputed discovery doctrine
articulated in Bristol-Myers.
We decline to extend Fox’s disapproval of Bristol-Myers to
CACI 555. As we discussed above, CACI 555 is an accurate
statement of the law as articulated in Jolly and its progeny,
including Knowles. Fox did not reject the holding in Jolly that
“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.”
(Jolly, supra, 44 Cal.3d at p. 1110.) Indeed, Fox cited Jolly with
approval throughout the opinion and observed, “the application of
the discovery rule as articulated in this opinion would not have
yielded a different result had it been applied in either Jolly or
Norgart.” (Fox, supra, 35 Cal.4th at p. 814.)
Moreover, CACI 555 specifically cites Arroyo v. Plosay
(2014) 225 Cal.App.4th 279, 286 (Arroyo), discussed below, as a
source and authority for the instruction. Following Fox, Arroyo
addressed whether the delayed discovery rule applies when two

12
distinct types of wrongdoing or injury are involved. It is clear the
drafters of CACI 555 were aware of this issue and declined to
revise CACI 555 in the way urged by Appellants. That is, the
drafters declined to flout well-established law that holds a cause
of action may accrue even if the plaintiff does not know the
identity of the defendant. (Norgart, supra, 21 Cal.4th at p. 399;
Bernson v. Browning–Ferris Industries, supra, 7 Cal.4th at
p. 932.)
Even if we were to interpret Fox to invalidate the
“someone’s wrongful conduct” language in CACI 555, Fox does
not apply here because Appellants’ claims do not involve two
distinct types of wrongdoing as contemplated in that case.
In Fox, the plaintiff filed a medical malpractice action against her
surgeon and the treating hospitals after gastric bypass surgery
performed on her resulted in severe complications. The surgeon
testified in his deposition a medical device used during the
surgery may have malfunctioned, causing her injury. As a result
of this information, the plaintiff amended her complaint to add a
products liability cause of action against the manufacturer of the
device. The manufacturer’s demurrer on statute of limitations
grounds was granted by the trial court. (Fox, supra, 35 Cal.4th at
p. 802.)
The Fox court reversed. It explained the plaintiff need not
know the legal theories underlying the claim to trigger the
statute of limitations. All that is required is that the plaintiff
have a reason to suspect a factual basis for the “generic” elements
of a cause of action: “wrongdoing, causation, and harm.” (Fox,
supra, 35 Cal.4th at pp. 806–807, quoting Norgart, supra,
21 Cal.4th at pp. 397–398 & fn. 2.) It reasoned, “As the
allegations in this case illustrate, a diligent plaintiff’s

13
investigation may only disclose an action for one type of tort (e.g.,
medical malpractice) and facts supporting an entirely different
type of tort action (e.g., products liability) may, through no fault
of the plaintiff, only come to light at a later date. Although both
claims seek to redress the same physical injury to the plaintiff,
they are based on two distinct types of wrongdoing and should be
treated separately in that regard.” (Fox, supra, at pp. 814–815.)
The Fox court relied on Jolly and Norgart to hold “[i]t is
therefore consistent with our prior applications of the discovery
rule to delay accrual of a products liability cause of action even
when a related medical malpractice claim has already accrued,
unless the plaintiff has reason to suspect that his or her injury
resulted from a defective product. More broadly stated, if a
plaintiff’s reasonable and diligent investigation discloses only one
kind of wrongdoing when the injury was actually caused by
tortious conduct of a wholly different sort, the discovery rule
postpones accrual of the statute of limitations on the newly
discovered claim.” (Fox, supra, 35 Cal.4th at p. 813.) The court
found the plaintiff had no reason to suspect a defective product
caused her injury until the surgeon’s deposition since she did not
know a stapler would be used for her surgery and neither the
operative report nor the reparative operative report indicated the
stapler had malfunctioned. (Id. at p. 805.)
Appellants also rely on Arroyo, supra, 225 Cal.App.4th at
page 286 to argue CACI 555, as written, does not apply where
there are two discrete acts of wrongdoing. In Arroyo, the
decedent’s relatives initially suspected her body was mishandled
by the hospital after her death, resulting in disfigurement to her
face and causing emotional distress to the family. The plaintiffs
later learned from their medical expert that the hospital and her

14
doctor may have prematurely declared her dead and placed her in
a compartment in the hospital morgue while she was still alive.
The expert opined the decedent ultimately froze to death after
she incurred the disfiguring injuries to her face while trying to
escape. (Arroyo, supra, at p. 282.)
As in Fox, the plaintiffs in Arroyo initially discovered one
type of tort but later discovered a distinct and separate type of
tort. Although the plaintiffs asserted causes of action for medical
malpractice, the “injury”—defined as wrongdoing, causation, and
harm—underlying each cause of action was not the same.
(Arroyo, supra, 225 Cal.App.4th at p. 292.) In the first medical
malpractice cause of action, the wrongdoing consisted of the
mishandling of the decedent’s body after death, causing
disfigurement to the decedent’s face, and resulting in the harm of
plaintiffs’ emotional distress upon learning of those postmortem
injuries. In the claims for medical malpractice and wrongful
death, the wrongdoing consisted of the premature declaration of
death and placement in the morgue while still alive, causing the
decedent to freeze in the morgue, and resulting in death. (Id. at
p. 292.) Arroyo held the accrual of a medical malpractice and
wrongful death cause of action based on the later-discovered
information was delayed under the discovery rule. (Ibid.)
Fox and Arroyo are distinguishable because Appellants’
causes of action do not encompass two distinct types of
wrongdoing or injury as discussed in those cases. Both lawsuits
assert the same wrongdoing—medical negligence—in connection
with Sade’s death. Appellants’ first action addressed negligent
treatment at San Pedro Medical Center during the prenatal,
labor, and delivery period that resulted in Sade’s death. The
second action addressed the negligent treatment at Torrance

15
Medical Center during the postnatal period that resulted in
Sade’s death. Contrary to Appellants’ arguments, these are not
distinct types of wrongdoing or injury. Instead, the negligence
cause of action against Yamamoto was encompassed within the
scope of Appellants’ initial suspicion of medical negligence.
Appellants contend, “this action is no different than a
victim of an automobile accident who obtains medical treatment
for her injuries. Of course, the plaintiff is on notice that her
injuries are the result of the negligence of the driver of the other
vehicle. But this does not mean that she is also on notice that
there was negligence by the treating physician who treated the
plaintiff for those injuries.” We agree this scenario reflects the
facts of Fox and Arroyo and the delayed discovery rule may apply
there.
However, Appellants’ scenario does not reflect the facts of
this case. This case is more akin to when the victim suffers two
automobile accidents on consecutive days. While the victim may
initially believe one accident caused her injury, she is
nevertheless on notice to inquire as to whether the other accident
also caused her injury. Likewise, Appellant’s suspicion that Sade
had died as a result of medical negligence required them to
investigate other potential tortfeasors whose medical negligence
may have also caused her death.

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 DISPOSITION
The judgment is affirmed. Yamamoto to recover his costs
on appeal.

BIGELOW, P. J.

We concur:

STRATTON, J.

WILEY, J.

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