Wable v. Ciresi CA5

Filed 9/2/21 Wable v. Ciresi CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MARCIA WABLE et al.,
F079286
Plaintiffs and Appellants,
(Super. Ct. No. 16CECG03783)
v.

KEVIN F. CIRESI, M.D. et al., OPINION
Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T.
McGuire, Judge.
Stuart R. Chandler for Plaintiffs and Appellants.
Sheuerman, Martini, Tabari, Zenere & Garvin, James J. Zenere and Adam M.
Stoddard, for Defendants and Respondents Kevin F. Ciresi, M.D., and Kevin F. Ciresi,
M.D., Inc.
Low McKinley Baleria & Salenko, Nicholas J. Leonard, for Defendants and
Respondents Athenix Physicians Group, Inc.
-ooOoo-
 This case involves a single issue, that is, whether a first amended complaint filed
by plaintiffs related back to the factual allegations in the initial complaint. The relation-
back doctrine deems a later-filed amended complaint to have been filed at the time of an
earlier complaint, which had met the applicable limitations period, thereby avoiding a
statute of limitations bar. Here, the trial court found the first amended complaint did not
relate back to the initial complaint and, in turn, that the action was barred by the
applicable statute of limitations. We agree with the trial court’s analysis and affirm.
FACTS AND PROCEDURAL BACKGROUND
This case was initiated, in the Fresno County Superior Court, as a medical
malpractice and loss of consortium action by a married couple, Marcia and George Wable
(the Wables), against Dr. Kevin Ciresi (along with Kevin F. Ciresi, M.D., Inc.)1 and
Athenix Physicians Group, Inc. (dba Athenix Body Sculpting Institute).2
The Wables commenced the matter by serving, on August 26, 2016, a notice of
intent pursuant to Code of Civil Procedure section 364 (subsequent statutory references
are to the Code of Civil Procedure) on defendants. Section 364 provides, in relevant part:
“No action based on [a] health care provider’s professional negligence may be
commenced unless the defendant has been given at least 90 days’ prior notice of the
intention to commence the action.” (§ 364, subd. (a).) Section 364 defines
“ ‘professional negligence,’ ” in pertinent part, as “[a] negligent act or [an] omission to
act 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.” (§ 364,
subd. (f)(2).)

1 We will refer to the Ciresi defendants hereafter at Ciresi.
2 We will refer to the Athenix defendants hereafter as Athenix.

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 Thereafter, on November 22, 2016, the Wables filed their initial complaint against
Ciresi and Athenix. The complaint provided background facts. Marcia Wable had
undergone a “tummy tuck” procedure performed by Dr. Ciresi, on August 27, 2015, at
Athenix Body Sculpting Institute. Dr. Ciresi also provided post-operative care to Marcia
Wable at the Athenix facility. Athenix Body Sculpting Institute either employed or
contracted with Dr. Ciresi to provide medical services at the Athenix facility. The
complaint further indicated that the claims therein were medical malpractice/personal
injury claims based on a negligence theory, for economic damages and general damages,
including emotional distress and loss of consortium damages.
As for specific factual allegations, the complaint alleged that Ciresi and Athenix
were “healthcare providers” who “provided medical care to Plaintiff, Marcia Wable[,] on
or about August 27, 2015[,] and thereafter.” In addition, the complaint alleged that on
August 27, 2015, Marcia Wable “presented for a tummy tuck procedure” at the Athenix
facility and “was provided negligent medical care on that date and succeeding dates by
Defendants … who failed to properly/timely diagnose and treat [her].” The complaint
further alleged: “As a result of the gross negligence of Defendants … Marcia Wable
presented to the emergency room at Clovis Community Hospital for treatment for
complications related to the tummy tuck, including a severe infection.”
Regarding damages, the complaint alleged that “Marcia Wable has suffered and
will suffer damages for personal injuries caused by the medical malpractice herein which
include, but are not limited to[,] past and future medical expenses, loss of income,
diminution of earning capacity, and other economic damages.” The complaint added:
“Marcia Wable also sustained past and future non-economic damages, which include
physical pain, mental suffering, loss of enjoyment of life, physical impairment,
inconvenience, disfigurement, grief, anxiety, humiliation and emotional distress as a
result of her own injuries suffered because of the medical malpractice alleged herein.”

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Finally, the complaint alleged that George Wable “has and will suffer loss of consortium
damages as a result of defendants’ negligence.”
Well over a year after the complaint was filed, after discovery was conducted, the
Ciresi and Athenix defendants filed, on August 8, 2018, their respective motions for
summary judgment. The motions were heard on October 25, 2018. In an order after
hearing dated November 2, 2018, the trial court granted Ciresi’s motion for summary
judgment but denied Athenix’s motion for summary judgment.
Ciresi’s motion for summary judgment was supported by an expert declaration
from a plastic surgeon, Barry Press, M.D., who performs tummy tucks. In its order after
hearing on the summary judgment motions, the trial court described Dr. Press’s
declaration as follows: “Dr. Press provides a detailed narrative of the course of treatment
and medical care Marcia Wable received. [Citation.] He opines that the medical care
and treatment provided to Marcia at all times satisfied the standard of care, and explains
in detail how he reached this conclusion.”
The Wables’s opposition to the defendants’ summary judgment motions was also
supported by a declaration from a plastic surgeon, Norman Leaf, M.D., who performs
tummy tucks. The trial court described Dr. Leaf’s declaration as follows: “Plaintiff’s
expert declaration does not address the medical care provided by Dr. Ciresi, but instead
addresses his bedside manner. Plaintiffs testified in their depositions that Dr. Ciresi
appeared unsteady during the post-surgical care, during which he yelled at Marcia, held
her down, ripped the tape off her wound, generally demeaned her and was bullying ….
[B]ased on plaintiffs’ deposition testimony, [Dr. Leaf opines] the post-surgical care
provided by Dr. Ciresi fell below the standard of care.” The trial court added: “Dr. Leaf
concludes, after quoting large segments of plaintiffs’ deposition testimony in his
declaration, [¶] [that] ‘[i]t is [his] professional opinion that the post-operative care
provided to Marcia Wable by Dr. Ciresi violated [the latter’s] duty to provide care with
compassion and respect for her dignity and rights. Holding her down and yelling, at her

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and her husband was substandard and below standards of professional care required of a
physician providing said care.”
The trial court noted that Dr. Leaf “relie[d] on ethical guidelines from the
American Medical Association [AMA] that state, in pertinent part,” that “[a] physician
shall be dedicated to providing competent medical care, with compassion and respect for
human dignity and rights.” (Emphasis omitted.) The court continued: “[T]he foundation
for Dr. Leaf’s opinion comes from AMA’s ‘principles of medical ethics.’ They are
simply standards of conduct, not the standard of care .… The AMA (of which Dr. Leaf
apparently isn’t even a member) is a voluntary professional association. There is no
showing in the opposition that the AMA’s standards of conduct establish the standard of
care for California physicians.” (Italics added.)
Regarding Dr. Leaf’s opinion, the trial court added:

“The allegations of the Complaint do not encompass breach of these
standards of professionalism [or bedside conduct]. The Complaint alleges,
‘Marcia Wable was provided negligent medical care on [August 27, 2015]
and succeeding dates by Defendants … who failed to properly/timely
diagnose and treat Marcia Wable.’ [Citation.] Addressing the harm
suffered as a result of the negligence, the Complaint alleges, ‘As a result of
the gross negligence of Defendants … Marcia Wable presented to the
emergency room at Clovis Community Hospital for treatment for
complications related to the tummy tuck, including a severe infection.’
[Citation.] This is the harm suffered as a result of the ‘fail[ure] to
properly/timely diagnose and treat Marcia Wable.’ It does not encompass
Dr. Ciresi’s bedside manner, or breach of standards of professionalism.
Plaintiff cannot survive summary judgment by raising triable issues as to
issues not raised in the pleadings.” (Emphasis omitted.)
The court granted Ciresi’s motion for summary judgment. The court further ruled:
“However, plaintiff[s] [are] granted 10 days’ leave to file an amended complaint to
conform to the proof as submitted in the declaration of Norman Leaf, M.D.”
The Wables filed a first amended complaint (FAC) on November 13, 2018.
References to the term “medical malpractice,” which were present in the initial

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complaint, were excised in the FAC, which characterized the action as a personal injury
action based on a general negligence theory. The paragraph in the original complaint
describing the direct harm suffered by Marcia Wable—i.e., that Marcia Wable had
“presented to the emergency room at Clovis Community Hospital for treatment for
complications related to the tummy tuck, including a severe infection”—was removed in
the FAC. Instead, the FAC added a new paragraph describing the direct harm suffered by
Marcia Wable as severe emotional distress arising from Dr. Ciresi’s rough handling and
bullying behavior during post-operative treatment, including his disparagement of
plaintiffs when they asked questions about Marcia Wable’s condition. The FAC further
alleged, in a departure from the original complaint, that George Wable suffered “severe
emotional distress” as a result of witnessing Dr. Ciresi’s behavior with Marcia Wable.
Specifically, the new paragraph added to the FAC provided:

“Defendant Dr. Ciresi, during his post-surgical treatment of Plaintiff
Marcia Wable, in the presence of her husband, Plaintiff George Wable,
negligently and/or intentionally caused severe emotional distress to
Plaintiffs by conduct which included, but [was] not limited to, holding
Marcia Wable down against her will, standing over her in a threatening and
intimidating manner while screaming at her and her husband, Plaintiff
George Wable; that he treated her roughly, including but not limited to,
violently tearing off bandages over an open post-surgical wound, and
routinely derogate[ing] each of them, when they asked any questions or
expressed concerns about his post-surgical care and the course of Plaintiff
Marcia Wable’s post-surgical healing and recovery.”
The FAC thus added new factual allegations of negligent and/or intentional behavior—
including details of actions that were “threatening,” “intimidating,” violent, and
bullying—that were not present in the original complaint. Finally, the FAC noted, just
like the initial complaint, that “Marcia Wable and George Wable served their notice of
intent to commence this action (CCP 364) on Defendants on August 26, 2016.”
On December 12, 2018 and December 18, 2018, the Ciresi and Athenix
defendants filed their respective demurrers to the FAC. The trial court issued a tentative

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ruling on March 1, 2019, sustaining both the demurrers without leave to amend. The
court ruled that the FAC did not relate back to the initial complaint and, in turn, was
barred by the applicable statute of limitations. The Wables requested oral argument,
which took place on March 7, 2019. The court issued its final order after hearing on
March 12, 2019, adopting its tentative ruling.
The Wables appeal from the trial court’s final order after hearing, which sustained
the demurrers of both the Ciresi and Athenix defendants, without giving the Wables a
further opportunity to amend the complaint. The ultimate question on appeal is whether
the allegations in the FAC relate back to the allegations in the initial complaint, thereby
avoiding any statute of limitations bar.
DISCUSSION
I. Court Properly Found FAC Did Not Relate Back to Original Complaint
In sustaining the demurrers of all defendants without leave to amend, the trial
court stated: “Here, the wrongful conduct alleged in the FAC is not within the scope of
what was alleged in the original Complaint. That was why the court granted summary
judgment in favor of Dr. Ciresi, but granted leave to amend.” The Wables challenge the
court’s ruling, making two interrelated claims.
First, the Wables point out that the original complaint alleged that Marcia Wable
was provided negligent medical care during the tummy tuck procedure and post-
operatively, while Dr. Leaf opined “that the post-surgical care provided by Dr. Ciresi fell
below the standard of care.” They contend they did not need, in the first place, “to amend
their complaint to include allegations in accordance with Dr. Leaf’s declaration,” given
that the original complaint included “claims of mental suffering, humiliation and
emotional distress as a result of defendants’ negligence, which was broadly alleged to
include defendants’ care from the time of the surgery and thereafter.”
Next, the Wables contend the trial court’s ultimate ruling (after they filed the
FAC), holding that the FAC did not relate back to the original complaint, was erroneous.

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As to the FAC, the trial court ruled: “[T]he new allegations of the FAC do not rest on the
same general set of facts, involve the same injury, or refer to the same instrumentality [as
the allegations in the original complaint].” The court further concluded: “Accordingly,
the FAC does not relate back to the filing of the original Complaint. The FAC is barred
by the statute of limitations.” The Wables contend “the [c]ourt erred in its analysis.”
The Wables suggest, “[t]he statute of limitations does not act as a bar because the
allegations of the [FAC] do indeed satisfy the criteria for relating back to the original
complaint.”
The trial court issued a detailed tentative decision, setting forth its reasoning in
sustaining the defendants’ demurrers without leave to amend. The court thereafter
adopted its tentative decision as its final order after hearing. The question whether the
allegations in an amended pleading relate back to the original pleading requires the
application of a legal doctrine to undisputed facts, rather than the exercise of
discretionary judgment by the trial court, and we therefore review the trial court’s
decision de novo. (See e.g., Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th
312, 318.) We agree with the trial court’s reasoning and conclusions as reflected in its
rulings. Accordingly, we affirm the court’s final order after hearing.
A. Background
The trial court’s tentative decision sustaining the defendants’ demurrers,
subsequently adopted as its final order after hearing, provided, in pertinent part:

“Code of Civil Procedure section 340.5 states that the limitations
period in professional negligence actions against health care providers is
‘three years after the date of injury, or one year after the plaintiff discovers,
or through exercise of reasonable diligence should have discovered, the
injury, whichever occurs first.’

“ ‘Thus, regardless of extenuating circumstances, a patient must
bring suit within one year after he discovers, or should have discovered[,]
his ‘injury.’ (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.)

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 “Without citing to any supporting authority, plaintiffs contend that
this matter is to be judged by standards of general negligence, not medical
malpractice. Plaintiffs contend that in ruling on the motion for summary
judgment, the court allowed plaintiffs to proceed on tort claims outside of
professional negligence. Plaintiffs contend that this issue has already been
litigated and ruled on by this court, in plaintiffs’ favor.

“That is not accurate. Plaintiffs’ summary judgment opposition was
premised on Dr. Ciresi’s breach of standards of professionalism [or bedside
conduct] established by the [AMA], in the course of providing medical care
to Marcia. The court’s [November 2, 2018] ruling did not make a
distinction between claims premised on medical negligence and general
negligence. [Citation.]

“ ‘[W]hen a cause of action is asserted against a health care provider
on a legal theory other than medical malpractice, the courts must determine
whether it is nevertheless based on the “professional negligence” of the
health care provider so as to trigger MICRA [the Medical Injury
Compensation Reform Act].’ (Unruh-Haxton v. Regents of the University
of California (2008) 162 Cal.App.4th 343, 353.)

“ ‘Professional negligence’ is defined as ‘a negligent act or omission
to act 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.’ (Civ. Code
§ 3333.1, subd. (c)(2).)

“Plaintiffs allege that defendants were healthcare providers, and that
Marcia ‘was seen as a patient … by defendants …’ (FAC ¶ 1-2.) The
wrongful acts by Dr. Ciresi alleged in the FAC occurred ‘during his post-
surgical treatment,’ including ‘tearing off bandages over an open post-
surgical wound,’ and when responding to questions/concerns about ‘the
course of Plaintiff Marcia Wable’s post-surgical healing and recovery.’
(FAC ¶ 6.)

“Clearly the alleged wrongful acts were done ‘in the rendering of
services for which the health care provider is licensed.’ (Civ. Code
§ 3333.1, subd. (c)(2).) Negligent hiring and supervision of medical
personnel also is considered professional negligence. (So v. Shin (2013)
212 Cal.App.4th 652, 668.) Thus, the MICRA legislation and statute of
limitations applies here.

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 “Again, the limitations period is three years from the date of injury,
or one year after plaintiffs discovered the injury, whichever occurs first.
(Code Civ. Proc. § 340.5.) It is apparent that the one year limitations
period applies here. The FAC clearly alleges that plaintiffs were the direct
objects of the alleged wrongful conduct of Dr. Ciresi, which caused
physical pain for Marcia Wable, and serious emotional distress for both
plaintiffs. Thus plaintiffs would have been aware of the injury as it
occurred.

“The medical services began on 8/27/15. The FAC does not allege
specifically when the post-surgical care (which forms the basis of the
complaint) took place. However, it must have taken place sometime within
the year after the tummy tuck, as plaintiffs allege that they served their
notice of intent to commence this action on 8/26/16. Even if the acts
forming the basis of the FAC took place at the end of that year, the claim
would be time barred as the FAC was filed on 11/18/18.

“Additionally, even if the cause of action did not sound in
professional negligence, and MICRA did not apply, the statute of
limitations for general negligence is two years. (Code Civ. Proc. § 335.1.)
The FAC was clearly filed more than two years after the alleged wrongful
conduct.

“However, the original complaint was filed 11/22/16, and plaintiffs
contend that the FAC relates back to the original complaint.

“The prevailing rule with respect to actions involving parties
designated by their true names in the original complaint is
that, if an amendment is sought after the statute of limitations
has run, the amended complaint will be deemed filed as of the
date of the original complaint provided recovery is sought in
both pleadings on the same general set of facts. (Amaral v.
Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1199.)

“In Massey v. Mercy Med. Ctr. Redding (2009) 180 Cal.App.4th
690, 698, as to medical malpractice claims, the court stated,

“For an amended malpractice complaint to ‘relate [b]ack’ to
the original complaint for statute of limitation purposes, the
amended complaint ‘must (1) rest on the same general set of
facts, (2) involve the same injury, and (3) refer to the same
instrumentality, as the original one.’ (Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 408-409, 87 Cal.Rptr.2d 453, 981 P.2d

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 79; Barrington v. AH. Robins Co. (1985) 39 Cal.3d 146, 150-
151, 216 Cal.Rptr. 405, 702 P.2d 563.)

“The court in Massey held that the plaintiff’s claims in an amended
complaint that a nurse ‘was negligent because he administered morphine
sulfate to plaintiff without a valid prescription and without informed
consent, to cover up [a prior] fall’ did not relate back to the claims in the
original [c]omplaint that the nurse ‘was negligent for leaving plaintiff
unattended on his walker, causing plaintiff to fall.’ (Ibid.)

“In Coronet Manufacturing Co. v. Superior Court (1979) 90
Cal.App.3d 342, the [c]ourt held that the relation back doctrine does not
apply in a single death case when the amended complaint alleges a different
accident [as the] cause [of] death and involves a different instrumentality.

“Here, the wrongful conduct alleged in the FAC is not within the
scope of what was alleged in the original [c]omplaint. That was why the
court granted summary judgment in favor of Dr. Ciresi, but granted leave to
amend. The court explained [at the time]:

“The allegations of the [c]omplaint do not encompass breach
of [the AMA’s] standards of professionalism [or bedside
conduct]. The [c]omplaint alleges, ‘Marcia Wable was
provided negligent medical care on [August 27, 2015] and
succeeding dates by Defendants, and each of them, who failed
to properly/timely diagnose and treat Marcia Wable.’
[Citation.] Addressing the harm suffered as a result of the
negligence, the [c]omplaint alleges, ‘As a result of the gross
negligence of Defendants, and each one of them, Marcia
Wable presented to the emergency room at Clovis
Community Hospital for treatment for complications related
to the tummy tuck, including a severe infection.’ [Citation.]
This is the harm suffered as a result of the ‘fail[ure] to
properly/timely diagnose and treat Marcia Wable.’ It does
not encompass Dr. Ciresi’s bedside manner, or breach of
standards of professionalism. Plaintiff cannot survive
summary judgment by raising triable issues as to issues not
raised in the pleadings.’ (Citation.)

“Thus, the new allegations of the FAC do not rest on the same
general set of facts, involve the same injury, or refer to the same
instrumentality. Accordingly, the FAC does not relate back to the filing of
the original [c]omplaint. The FAC is barred by the statute of limitations.”
(Emphasis omitted.)

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 B. Analysis
Preliminarily, we reject the Wables’s contention that “[t]here was no need,” in the
first instance, “to require plaintiffs to amend their complaint to include allegations in
accordance with Dr. Leaf’s declaration.” The Wables have not challenged the court’s
ruling granting Ciresi’s summary judgment motion, whereby their claim that there was no
need for them to amend their complaint is inappropriately raised and is not well taken.3
The Wables next contend that “[t]he statute of limitations does not act as a bar
because the allegations of the [FAC] do indeed satisfy the criteria for relating back to the
original complaint.” This argument overlaps with the Wables’s preliminary argument
addressed above, as both arguments essentially boil down to the question whether the
factual allegations in the original complaint can reasonably be seen as encompassing
those in the FAC. The trial court answered this question in the negative and found the
plaintiffs’ anticipated amendments were ultimately futile.
As to the Wables’s contentions regarding the FAC, we agree with the trial court.
Specifically, we agree that “the new allegations of the FAC do not rest on the same
general set of facts, involve the same injury, or refer to the same instrumentality [as the
allegations in the original complaint].” We therefore affirm the trial court’s conclusion

3 In any event, as the trial court explained, the original complaint alleged a medical
malpractice claim centered on negligent medical care provided to Marcia Wable by Dr.
Ciresi, to the extent he failed to properly and timely diagnose and treat Marcia Wable in
connection with her tummy tuck procedure, such that Marcia Wable had to go to the
emergency room at Clovis Community Hospital on account of a severe infection and
other complications of the tummy tuck surgery. Dr. Leaf’s declaration, on the other
hand, discussed Dr. Ciresi’s unprofessional conduct to the extent he acted roughly and in
a bullying manner during post-operative visits, by roughly handling Marcia Wable in
examining her and failing properly to answer questions posed to him by both Marcia and
George Wable. Accordingly, the court did not err in requiring the Wables to amend the
complaint to incorporate factual allegations reflecting the substance of Dr. Leaf’s
declaration as to Dr. Ciresi’s unprofessional conduct.

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that “the FAC does not relate back to the filing of the original Complaint” and is “barred
by the statute of limitations.” (See Pointe San Diego Residential Community, L.P. v.
Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276 (Pointe
San Diego) [“An amended complaint is considered a new action for purposes of the
statute of limitations … if the claims do not ‘relate back’ to an earlier, timely filed
complaint.”].)
The Wables correctly summarized the applicable law in their opening brief,
quoting Pointe San Diego, as follows:

“ ‘Under the relation-back doctrine, an amendment relates back to
the original complaint if the amendment: (1) rests on the same general set
of facts; (2) involves the same injury; and (3) refers to the same
instrumentality. [Citations.] An amended complaint relates back to an
earlier complaint if it is based on the same general set of facts, even if the
plaintiff alleges a different theory or new cause of action. [Citations.]
However, the doctrine will not apply if “the plaintiff seeks by amendment
to recover upon a set of facts entirely unrelated to those pleaded in the
original complaint.” (Stockwell v. McAlvay (1937) 10 Cal.2d 368, 375 …,
[emphasis omitted].)

“ ‘In determining whether the amended complaint alleges facts that
are sufficiently similar to those alleged in the original complaint, the critical
inquiry is whether the defendant had adequate notice of the claim based on
the original pleading. “The policy behind statutes of limitations is to put
defendants on notice of the need to defend against a claim in time to
prepare a fair defense on the merits. This policy is satisfied when recovery
under an amended complaint is sought on the same basic set of facts as the
original pleading. [Citation.]” [Citations.] Additionally, in applying the
relation-back analysis, courts should consider the “strong policy in this
state that cases should be decided on their merits.” [Citations.] [(Pointe
San Diego, supra, 195 Cal.App.4th at pp. 276-277.)]’ ”
Here, the original complaint addressed negligence related to the tummy tuck
procedure and subsequent treatment that culminated in a post-operative infection. The
FAC reflected a new set of facts regarding Dr. Ciresi’s inappropriate and negligent
bedside manner, including roughness, rudeness, and bullying; new injuries, including

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fright and horror, arising from Dr. Ciresi’s aforementioned roughness, rudeness, and
bullying; and a new instrumentality of harm, that is, Dr. Ciresi’s inappropriate bedside
manner, including rough treatment, yelling and screaming, and failure to address the
Wables’s questions and concerns.
We agree with the trial court that the original complaint did not encompass the
factual scenarios of Dr. Ciresi screaming at, and disparaging, the Wables, and being
rough with Marcia Wable, during post-operative visits, thereby emotionally impacting the
Wables in a direct fashion. The original complaint posited a scenario where Dr. Ciresi’s
negligent medical care in terms of his failure “to properly/timely diagnose and treat
Marcia Wable,” led to a negative physical outcome, including a severe infection, for
Marcia Wable. The FAC, in contrast, posited a scenario where Dr. Ciresi’s lack of
professionalism or unprofessional conduct directly took an emotional toll on both
plaintiffs. Given the disparity in the basic facts alleged in the complaint and FAC,
respectively, the FAC did not relate back to the complaint. (See Austin v. Massachusetts
Bonding & Ins. Co. (1961) 56 Cal.2d 596, 601 (Austin) [“The rule which makes relation
back of an amendment dependent upon whether recovery is sought on the same general
set of facts as those alleged in the original complaint is in accordance with the basic
principle of code pleading that a litigant need only allege the facts warranting
recovery.”]; Benfield v. Mocatta Metals Corp. (2d Cir. 1994) 26 F.3d 19, 23 (for relation-
back doctrine to apply, “there must be a sufficient commonality” of alleged acts of
wrongdoing to preclude a claim of “unfair surprise”];4 Santamarina v. Sears, Roebuck &
Co. (7th Cir. 2006) 466 F.3d 570, 573 [“The criterion of relation back is whether the
original complaint gave the defendant enough notice of the nature and scope of plaintiff’s

4 As California and federal law are similar with respect to the relation-back
doctrine, California courts look to federal decisions in applying the doctrine. (See Austin,
supra, 56 Cal.2d at pp. 601-602; Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th
409, 416-417.)

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claim that he shouldn’t have been surprised by the amplification of the allegations of the
original complaint in the amended one.”].)
The Wables argue, in their reply brief, that the factual allegations in the original
complaint were not limited to medical malpractice that resulted in a negative physical
outcome for Marcia Wable, including a severe infection that required emergency medical
treatment. The Wables argue the reference to Marcia Wable requiring emergency
treatment for severe infection simply signified a component of damages. However, this
contention amounts to a strained interpretation of the original complaint and is not
persuasive.
Finally, the Wables rely heavily on Pointe San Diego, supra, 195 Cal.App.4th
265, a legal malpractice case they did not cite to the trial court. In Pointe San Diego, the
original legal malpractice complaint generally alleged that within the last year,
“ ‘Defendants, as Plaintiffs’ attorneys, failed to use due care’ ” in the handling of real
estate litigation on behalf of the plaintiffs. (Id. at p. 271.) The Pointe San Diego court
concluded that a subsequent amendment of the original legal malpractice complaint in the
matter, related back to the original complaint, because the defendant law firm had
adequate “notice that the professional negligence claim was based on its representation of
plaintiffs in [a particular] case, and of the need to gather and preserve evidence relating to
[that] representation.” (Id. at p. 278.) In other words, the legal malpractice claim related
to one particular representation, with which the defendant law firm was already well
familiar. The court elaborated: “Although the original complaint did not detail how the
firm had allegedly breached the standard of care, the form complaint and the … amended
complaint rested on the same general set of facts [regarding a single litigation matter],
involved the same injury (monetary damages sustained as a result of alleged professional
negligence), and referred to the same instrumentality (alleged professional negligence).”
(Ibid.)

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 The Wables argue: “Just as the plaintiffs in [Pointe San Diego] alleged in their
original lawsuit generally that the defendant lawyers ‘failed to use due care’ in
representing them, so plaintiffs in this case alleged that defendants provided ‘negligent
medical care.’ ” The Wables add: “The complaint alleged that defendants’ conduct ‘fell
below the standard of care’ as it related to treatment of Marcia Wable from the time of
her tummy tuck procedure and thereafter.” The Wables continue: “Just as the defendants
in [Pointe San Diego] were put on notice that the claims being brought had to do with
counsel’s representation of those parties in certain litigation, so too were the defendants
herein put on notice that plaintiffs’ claims arose from the treatment of Marcia Wable as a
patient.” Finally, the Wables contend that the FAC simply alleges “more specifics about
the negligent medical care” provided by defendants.
The Wables’s citation to Pointe San Diego is unavailing, as that case is factually
distinguishable from the instant matter. The Pointe San Diego court reasoned: “[I]t
would defeat this state’s liberal pleading rules and statutory and judicial policies
requiring prompt filing of malpractice complaints to hold the relation-back doctrine
inapplicable here merely because plaintiffs’ original complaint did not contain detailed
allegations of the precise nature of the alleged legal malpractice.” (Pointe San Diego,
supra, 195 Cal.App.4th at p. 279.) In contrast to the situation in Pointe San Diego, here
the original complaint outlined the factual scenario underlying the alleged malpractice at
issue. The original complaint specifically alleged that defendants “provided negligent
medical care” in that they “failed to properly/timely diagnose and treat Marcia Wable,”
whereby “Marcia Wable presented to the emergency room at Clovis Community Hospital
for treatment for complications related to the tummy tuck, including a severe infection.”
In the FAC, these factual allegations were removed and replaced with new allegations
regarding Dr. Ciresi’s poor bedside manner in the course of providing post-operative
care, including screaming at the Wables, violently tearing bandages off Marcia Wable’s
surgical wound, and disparaging the Wables when they asked him questions related to

16.
Marcia Wable’s condition. Pointe San Diego addressed a very different situation and is,
therefore, inapposite. Nor are the other authorities citied by the Wables persuasive on the
present record.
In sum, the allegations in the FAC do not: (1) rest on the same general set of facts
as reflected in the original complaint; (2) do not involve the same injury as the original
complaint; and (3) do not refer to the same instrumentality of harm as the original
complaint. Since the relation-back doctrine does not apply, the trial court properly
sustained the defendants’ demurrers.5
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs.

SMITH, J.
WE CONCUR:

HILL, P. J.

DETJEN, J.

5 Plaintiffs do not contend the trial court should have granted further leave to
amend.

17.