Filed 11/18/21 Novoa v. Sespe Medical CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
HIDANIA NOVOA, 2d Civ. No. B310302
(Super. Ct. No. 56-2019-00537320-
Plaintiff and Appellant, CV-FR-VTA
(Ventura County)
v.
SESPE MEDICAL, INC. et al.,
Defendants and Respondents.
Hidania Novoa appeals a judgment entered on the
pleadings in favor of Sespe Medical, Inc., Bautista Medical Group
Southern California, Inc., and Jorge Bautista.1 We conclude that
the one-year limitations period of Code of Civil Procedure section
340.5 bars Novoa’s causes of action for intentional
misrepresentation and concealment, and affirm.2
We refer to defendants collectively as “Sespe” except
1
where clarity demands that we draw a distinction.
2 All statutory references are to the Code of Civil
Procedure.
This appeal concerns Novoa’s claims against Sespe arising
during the course of her medical treatment following her
pregnancy. Novoa alleges that Sespe mishandled her
employment disability forms, causing her employer to dismiss
her. Specifically, she alleges that Jorge Bautista misrepresented
to her that he was a licensed physician instead of a physician’s
assistant. Among other defenses, Sespe responds that Novoa’s
claims arise from the rendering of medical professional services
to which the one-year limitations period of section 340.5 applies.
The trial court agreed and granted Sespe’s motion for judgment
on the pleadings.
FACTUAL AND PROCEDURAL HISTORY
On December 13, 2019, Novoa filed a complaint for
intentional misrepresentation and concealment against Sespe.
She alleges that in 2017 she was on a pregnancy leave of absence
and was treated by Bautista, who represented himself as a
licensed physician. Novoa’s employer, the City of Oxnard,
requested written information from Bautista regarding Novoa’s
disability. Bautista did not respond timely and eventually
provided incomplete information. He instructed Novoa to
complete the information on the disability form, which she
eventually did. Novoa alleges that her employer then dismissed
her from employment for altering the disability form. Bautista
later sent a detailed letter to the employer to clarify the
misunderstanding. It was through this January 2, 2018, detailed
letter that Novoa learned that Bautista was not a licensed
physician, but rather a physician’s assistant.
Sespe filed a motion for judgment on the pleadings,
asserting that section 340.5 barred Novoa’s lawsuit. The trial
court agreed and granted the motion without leave to amend. In
2
its written ruling, the court stated: “[Novoa’s] cause of action for
fraud . . . is directly related to the manner in which defendants
provided professional services. The claim emanates from the
manner in which defendants performed and communicated the
results of medical tests, a matter that is an ordinary and usual
part of medical professional services.”
Novoa appeals and contends that the trial court erred by
applying the one-year limitations period of section 340.5 to her
claims.
DISCUSSION
Novoa argues that her allegations of fraud against Sespe do
not concern and are extrinsic to her medical treatment. She
relies upon Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276,
321 [fraud and other intentional torts action against physician-
shareholder of medical device] and Unruh-Haxton v. Regents of
University of California (2008) 162 Cal.App.4th 343, 351
[physicians sold patients’ eggs and pre-embryos for personal
financial gain].
A motion for judgment on the pleadings is similar to a
general demurrer and attacks those defects disclosed on the face
of the pleadings. (Julian Volunteer Fire Co. Assn. v. Julian-
Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 598.)
We assume the truth of properly alleged facts and then
determine whether the complaint states a cause of action.
(National Shooting Sports Foundation, Inc. v. State of California
(2018) 5 Cal.5th 428, 432; Julian, at p. 598.) We independently
review the trial court’s ruling. (Julian, at p. 598.)
Section 340.5 establishes a one-year limitations period for
any action for injury or death against a health care provider
based upon such person’s alleged professional negligence. The
3
one-year period runs from the date “the plaintiff discovers, or
through the use of reasonable diligence should have discovered,
the injury.” (Ibid.) “Professional negligence” is “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.” (Id., subd. (2);
Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514.)
Additional causes of action frequently arise from the same
facts as a medical malpractice cause of action. (Smith v. Ben
Bennett, Inc., supra, 133 Cal.App.4th 1507, 1514.) These causes
of action include battery, fraud, breach of contract, and
intentional infliction of emotional distress, among others. (Ibid.;
Tell v. Taylor (1961) 191 Cal.App.2d 266, 271 [fraud allegations
against physician treated as malpractice action].) Thus, when a
plaintiff asserts a claim against a health care provider on a legal
theory other than professional negligence, the court must
determine whether the claim is nevertheless based upon the
health care provider’s professional negligence. (Smith, at
p. 1514.) In making this determination, the court focuses upon
the nature of the claim, not the label or form of action selected by
the plaintiff. (Larson v. UHS of Rancho Springs, Inc. (2014) 230
Cal.App.4th 336, 352 [allegations that physician battered
plaintiff patient subject to limitations period for professional
negligence]; Davis v. Superior Court (1994) 27 Cal.App.4th 623,
627 [allegations that defendant physicians falsified medical
findings subject to limitations period for professional
negligence].)
Moreover, a medical professional may commit a negligent
act in rendering medical care, thereby causing injury, even if no
medical skills were required to complete the task. (Flores v.
4
Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 86
[failure to raise patient’s bedrail].) The test is not whether the
treatment called for a high or a low level of skill or whether a
high or low level of skill was employed. (Ibid.)
Here Novoa’s fraud claims emanate from the manner in
which Bautista performed and communicated the results of
medical tests and professional evaluation, a matter that is an
ordinary and usual part of medical professional services.
(Central Pathology Service Medical Clinic, Inc. v. Superior Court
(1992) 3 Cal.4th 181, 192-193 (Central Pathology) [plaintiff’s
claims of fraud by laboratory and physician arose from manner in
which professional medical services provided].) Novoa’s efforts to
remove her claims from the one-year limitations period of section
340.5 by labeling the claims as fraud are to no avail. (Central
Pathology, at pp. 192-193.) Our analysis of the allegations of
Novoa’s complaint persuades us that the nature and cause of her
injury directly relate to the manner in which professional medical
services were provided. Moreover, Novoa alleges that she was
aware of the allegations giving rise to her claims no later than
January 23, 2018, almost two years before she filed her
complaint. She does not suggest how she can cure the defect of
the limitations period by amending her complaint.
Novoa’s reliance on Bigler-Engler v. Breg, Inc., supra, 7
Cal.App.5th 276, 321, and Unruh-Haxton v. Regents of University
of California, supra, 162 Cal.App.4th 343, 352, does not assist her
argument. In Bigler-Engler, the physician realized financial gain
from the sale and rental of a medical device he prescribed to the
patient. He did not inform the patient of his financial interest in
the device, a collateral course of conduct to his provision of
professional medical services. In Unruh-Haxton, patients
5
undergoing fertility treatments filed intentional tort actions
against physicians and a fertility clinic alleging that patients’
eggs and pre-embryos were sold by defendants for financial gain.
The lawsuit concerned “the intentional and malicious quest to
steal genetic material.” (Id., at p. 356.) Here Sespe’s inaccuracy
and tardiness in completing a disability form relate to a matter
that is a usual and ordinary part of professional medical services.
DISPOSITION
The judgment is affirmed. Respondents are to recover
costs.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
6
Benjamin F. Coates, Judge
Superior Court County of Ventura
______________________________
Rodney T. Lewin and Randall A. Spencer for Plaintiff and
Appellant.
Heller & Edwards and Mark L. Edwards for Defendants
and Respondents.
7