Osuna v. Tan CA2/8

Filed 10/31/22 Osuna v. Tan CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MONIQUE OSUNA, B312699

Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 20STCV00343
v.

MARK C. TAN,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael E. Whitaker, Judge. Affirmed.
Graham & Associates and Anthony G. Graham for Plaintiff
and Appellant.
Law + Brandmeyer, Kent T. Brandmeyer and Jacob S.
Rosenberg for Defendant and Respondent.
___________________________
 Plaintiff Monique Osuna sued Dr. Mark C. Tan for failure
to diagnose a hernia that had caused her pain for over two years
by the time she saw him. Another doctor, Dr. Charles Chalekson,
who is not a party to this appeal, had failed to diagnose the
hernia more than two years earlier. Dr. Chalekson reexamined
plaintiff about a month after her visit with Dr. Tan, diagnosed
the hernia, and performed a surgery to repair it.
The trial court granted Dr. Tan’s motion for summary
judgment and plaintiff appealed. We affirm because plaintiff
sued Dr. Tan more than one year and 90 days after
Dr. Chalekson told her he misdiagnosed her two years earlier
when he told her she was fine, which indisputably meant Dr. Tan
also misdiagnosed her the month before Dr. Chalekson
acknowledged his own mistake. (Code Civ. Proc., §§ 340.5, 364,
subd. (d).)1 Because we affirm on statute of limitations grounds,
we need not, and do not, consider whether Dr. Tan’s motion also
presented meritorious substantive grounds.
BACKGROUND
Before the hernia developed, in October 2015,
Dr. Chalekson performed a mastectomy on plaintiff. As part of
this surgery, Dr. Chalekson relocated tissue from plaintiff’s
abdomen to her chest. He then implanted a mesh in the
abdominal donor site to prevent hernias.
But in April 2016, plaintiff developed a “knot on the left
side of her belly button and became very sick, with vomiting and
nausea.” She presented to the emergency room at a hospital in
San Luis Obispo where she underwent a CT scan. A doctor there

1 Undesignated statutory references are to the Code of Civil
Procedure.

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diagnosed her with a hernia and referred her back to
Dr. Chalekson for further evaluation.
When plaintiff returned to Dr. Chalekson, he rejected the
hernia diagnosis, deeming it impossible given his use of mesh to
reinforce her abdomen.
Plaintiff’s symptoms did not go away. On August 8, 2018,
more than two years after the onset of her hernia, plaintiff saw
Dr. Tan at City of Hope Comprehensive Cancer Center in Duarte.
Dr. Tan assessed her symptoms as normal complications of the
procedure Dr. Chalekson performed and recommended diet and
exercise.
Plaintiff took Dr. Tan’s advice to exercise, but it caused her
more pain. So, on September 11, 2018, she consulted a physical
therapist who, like the emergency room doctor in San Luis
Obispo, referred her back to Dr. Chalekson. Plaintiff returned to
Dr. Chalekson eight days later.
According to her complaint, Dr. Chalekson then told her his
prior diagnosis—that she could not have a hernia and that she
was “fine”—was wrong. Specifically, plaintiff alleged that, upon
reexamining her in September 2018, Dr. Chalekson apologized
“for failing to diagnose her properly earlier, for failing to
understand the extreme pain she was in and what it meant.”
Dr. Chalekson then ordered a new CT scan from which he
concluded that “the mesh had been improperly installed” and
that her pain “had been caused by the mesh having torn away”
and resultant hernia. Accordingly, plaintiff underwent surgery
in October 2018 “to replace the torn mesh.”
Plaintiff told a materially different version of events in her
declaration in opposition to Dr. Tan’s summary judgment motion
than what she alleged in her complaint. In her declaration, as
alleged in the complaint, plaintiff said she saw Dr. Chalekson in

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September 2018, and he reexamined her and ordered a new
CT scan. But there is no mention of Dr. Chalekson’s post-
examination apology and acknowledgment that he earlier
misdiagnosed her. Nor is there mention of his interpretation of
the new CT scan as providing a conclusive hernia diagnosis.
Instead, plaintiff asserts in her declaration that it was after the
second surgery Dr. Chalekson performed in October 2018 that he
told her “the mesh had been improperly installed,” and that her
pain “had been caused by the mesh having torn away” and
resultant hernia.
Documentary evidence shows that Dr. Chalekson knew
plaintiff had an abnormal condition on the day he examined her
and ordered a CT scan in September 2018. His post-visit notes
from September 19, 2018, acknowledged “a palpable defect that is
most noticeable across the left midline,” and surgical site
“disruption that is symptomatic and causing pain.” And a post-
CT scan report dated September 26, 2018, said Dr. Chalekson
had ordered it to evaluate “[a]bdominal pain, incisional hernia
without obstruction or gangrene.” In short, consistent with
plaintiff’s allegations in her complaint concerning the content
and timing of his apology, Dr. Chalekson knew upon examining
her in September 2018 that he had misdiagnosed her in 2016.
Even after Dr. Chalekson’s remedial surgery in October
2018, plaintiff continued to experience pain she traces back to
Dr. Chalekson’s initial operation.
On August 15, 2019, pursuant to section 364, plaintiff
served Dr. Tan with notice that she intended to sue him. She
filed her complaint, containing a single cause of action for
medical malpractice, on January 6, 2020.

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 Dr. Tan moved for summary judgment. The trial court
granted Dr. Tan’s motion on both statute of limitations and
substantive grounds. Plaintiff timely appealed.
DISCUSSION
1. Summary Judgment Standard of Review
A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (§ 437c, subd. (p)(2).) Summary judgment is appropriate
where “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” (Id., subd. (c).)
Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542.) It is no longer called a “disfavored” remedy. (Ibid.)
“Summary judgment is now seen as ‘a particularly suitable
means to test the sufficiency’ of the plaintiff’s or defendant’s
case.” (Ibid.)
On appeal, “we take the facts from the record that was
before the trial court . . . . [Citation.] ‘ “We review the trial
court’s decision de novo, considering all the evidence set forth in
the moving and opposing papers except that to which objections
were made and sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1037.) This approach requires us to
examine only the correctness of trial court’s ruling. We must
affirm if the trial court reached the correct outcome, even if for
the wrong reasons. (County of San Mateo v. Superior Court
(2017) 13 Cal.App.5th 724, 730.)

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2. The Trial Court Properly Granted Summary
Judgment
The statute of limitations is a complete defense to an action
for purposes of section 437c, subdivision (p)(2). “Thus, summary
judgment is appropriate where the undisputed facts establish
that a claim is barred by the statute of limitations.” (Arrow
Highway Steel, Inc. v. Dubin (2020) 56 Cal.App.5th 876, 883.)
“While resolution of the statute of limitations issue is normally a
question of fact, where the uncontradicted facts established
through discovery are susceptible of only one legitimate
inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co.
(1988) 44 Cal.3d 1103, 1112.)
a. Applicable statute of limitations
Plaintiff’s sole cause of action is for medical malpractice—
professional negligence by Dr. Tan in his capacity as plaintiff’s
healthcare provider. As such, section 340.5 supplies the
applicable limitations period.
Section 340.5 provides in relevant part: “In an action for
injury . . . 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. In no event shall the time for
commencement of legal action exceed three years unless tolled for
any of the following: (1) upon proof of fraud, (2) intentional
concealment, or (3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of the
injured person. . . .”
Section 340.5 establishes two events that create alternative
deadlines by which a plaintiff must sue, and the earlier to occur

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of the two deadlines governs. A plaintiff alleging medical
malpractice must sue by the date that is one year after she
discovered, or should have discovered, her injury, or that is three
years from the date of injury (subject to the enumerated
exceptions), whichever “occurs first.” Where, as here, discovery
occurs more than a year before the date that is three years after
injury, the three-year period becomes irrelevant because the
expiration of the one-year period will necessarily “occur[] first.”
“ ‘[T]he term “injury,” as used in section 340.5, means both
“a person’s physical condition and its ‘negligent cause.’ ” ’ ”
[Citation.] The word ‘injury’ for purposes of section 340.5 is a
term of art that ‘refer[s] to the damaging effect of the alleged
wrongful act and not to the act itself.’ [Citation.] The injury is
not necessarily the ultimate harm suffered, but instead occurs at
‘the point at which “appreciable harm” [is] first manifested.’ ”
(Brewer v. Remington (2020) 46 Cal.App.5th 14, 24.)
In addition to the statute of limitations in section 340.5,
another statute applies to an action for a healthcare provider’s
professional negligence, section 364. Section 364 requires at least
90 days’ prior notice to the defendant of the plaintiff’s intention to
commence the action. (Id., subd. (a).) It further states: “If the
notice is served within 90 days of the expiration of the applicable
statute of limitations, the time for the commencement of the
action shall be extended 90 days from the service of the notice.”
(Id., subd. (d).)
The trial court misconstrued this provision, reading it
without regard to binding interpretation by our Supreme Court.
If the notice is given within 90 days of the expiration of the
applicable limitations period, section 364, subdivision (d) does not
merely extend the limitations period from the date of notice but
rather tolls the limitations period for 90 days. (Woods v. Young

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(1991) 53 Cal.3d 315, 328.) As a result, a plaintiff suing a
healthcare professional for negligence who gives notice within
90 days before the limitations period expires has, where
section 340.5’s discovery-based deadline applies, one year plus
90 days in which to sue. (Woods, at p. 328.)
b. Analysis
We affirm the trial court’s summary judgment on statute of
limitations grounds, but for different reasons than stated by the
trial court.
Plaintiff concedes that the section 340.5 limitations period
applicable to her claim is the one-year period keyed off the date
she discovered her injury. Plaintiff disputes that the one-year
period began September 19, 2018.
Dr. Tan concedes plaintiff served him with a section 364
notice within 90 days before expiration of that one-year period.
Thus, in the absence of any other grounds for tolling, it is
undisputed that plaintiff had one year and 90 days from the date
she discovered her injury to sue Dr. Tan.
For the reasons that follow, no other grounds for tolling
apply and plaintiff knew of her injury by September 19, 2018. As
such, she had only until December 18, 2019, to sue Dr. Tan,
rendering her January 6, 2020 complaint untimely.
i. Plaintiff knew of her injury not later than
September 19, 2018.
Plaintiff’s cause of action against Dr. Tan rests on two basic
facts: (1) when plaintiff saw Dr. Tan at his office on August 8,
2018, he negligently failed to diagnose her hernia and advised
her to exercise; and (2) the exercise she performed on his advice
caused her even more pain. The summary judgment record
establishes that plaintiff knew these facts not later than
September 19, 2018.

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 Not later than September 11, 2018, plaintiff knew the
exercise Dr. Tan recommended was causing her excess pain.
Prior to September 11, plaintiff attempted yoga and other
exercises on Dr. Tan’s advice and “suffered excruciating pain” as
a result. On September 11, she saw a physical therapist about
this. The physical therapist declined to work with plaintiff “due
to the very high level of [plaintiff’s] pain and swelling” and
advised that such a high pain level required further evaluation
by a doctor.
Not later than September 19, 2018, plaintiff knew that
Dr. Tan failed to diagnose an abnormal medical condition at her
August 8 visit with him. September 19 is when Dr. Chalekson
admitted to plaintiff that his 2016 finding of no abnormal medical
condition was incorrect. The unavoidable corollary to
Dr. Chalekson’s admission was that Dr. Tan’s August 2018
finding was also incorrect: Plaintiff was suffering from the same
hernia symptoms when Dr. Chalekson saw her in 2016 as she
was both (i) when Dr. Tan saw her in August 2018, and (ii) when
Dr. Chalekson saw her in September 2018. Dr. Tan reached the
same conclusion after evaluating plaintiff in August 2018 that
Dr. Chalekson reached after evaluating her in 2016: her
condition was normal. Therefore, when Dr. Chalekson said on
September 19, 2018, that his 2016 diagnosis was wrong, the
unavoidable import was that Dr. Tan’s August 2018 diagnosis
was wrong.
Ignoring what she said in the complaint about
Dr. Chalekson’s September 19, 2018 admission, plaintiff argues
she could not have known of Dr. Tan’s misdiagnosis until October
11, 2018, when Dr. Chalekson performed his second surgery on
her. This, she argues, is because Dr. Tan “admit[ted]” this
surgery was a prerequisite to her knowledge of Dr. Tan’s

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misdiagnosis when, in briefing, Dr. Tan called the surgery
“exploratory . . . to determine the origin of [plaintiff’s] complaint
of pain, revealing that the mesh had to be replaced.” But
plaintiff’s theory of liability is not that Dr. Tan failed to intuit the
condition of implanted surgical mesh by reviewing old charts and
performing a physical examination. Rather, it is that he failed to
recognize her symptoms were not “normal complications” from
the 2016 procedure Dr. Chalekson performed; that her pain was
not normal; and that the exercise he recommended would not
resolve, but instead exacerbate, her pain.
In response to Dr. Tan’s argument that plaintiff knew of
her injury not later than when Dr. Chalekson examined her on
September 19, 2018, plaintiff denies her allegations establish
this. As she tells it, “the complaint merely says Dr. Chalekson
ordered a CT scan, to discover what the problem might be. He
then operated on her and only then, after October 11, 2018, did
he inform her of the torn mesh and hernia.” While this is a fair
description of plaintiff’s declaration in opposition to Dr. Tan’s
summary judgment motion, it severely mischaracterizes her
complaint.
Again, plaintiff alleges in her complaint that
Dr. Chalekson, after performing a physical examination and
review of her medical records on September 19, 2018, apologized
for misdiagnosing her in 2016. Dr. Chalekson then ordered a
CT scan to evaluate plaintiff for a hernia, concluded from the
CT scan that she did have a hernia resulting from the torn mesh,
and advised plaintiff of this fact. On this basis, plaintiff
thereafter “had surgery to replace the torn mesh.”
Plaintiff cannot escape her allegations about what
Dr. Chalekson told her, and when he told her, by offering a
declaration or argument at odds with her complaint. “In

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summary judgment . . . proceedings, ‘[a]dmissions of material
facts made in an opposing party’s pleadings are binding on that
party as “judicial admissions.” They are conclusive concessions of
the truth of those matters, are effectively removed as issues from
the litigation, and may not be contradicted, by the party whose
pleadings are used against him or her.’ ” (St. Paul Mercury Ins.
Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248;
see also Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441,
1451 [“A party cannot create an issue of fact by a declaration
which contradicts his prior pleadings”].) The purpose of this rule
is particularly well served where, as here, third party
documentary evidence aligns with the plaintiff’s allegations, and
not with her declaration opposing summary judgment.
ii. The section 340.5 tolling provisions
plaintiff relies on do not apply.
Plaintiff argues that her time to sue is tolled under the
exceptions in the second sentence of section 340.5. That sentence
reads: “In no event shall the time for commencement of legal
action exceed three years unless tolled for any of the following:
(1) upon proof of fraud, (2) intentional concealment, or (3) the
presence of a foreign body, which has no therapeutic or diagnostic
purpose or effect, in the person of the injured person.” (Ibid.)
Plaintiff claims the first two exceptions apply on the theory
that Dr. Tan “indisputabl[y] . . . knew she had a serious medical
issue” because her physical condition would have made this fact
obvious to even a layman; ergo his failure to tell her she had a
serious medical condition was a fraud or intentional concealment.
Plaintiff claims the benefit of the third exception “because this
case involves the presence of a foreign body (toxic mesh) which
indisputably had no therapeutic value (since it had failed years
earlier and was causing a serious toxic infection).”

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 Plaintiff’s arguments fail as a matter of law. The second
sentence of section 340.5 serves only to toll section 340.5’s three-
year limitations period (which plaintiff agrees does not apply
here); not its one-year limitations period. (Belton v. Bowers
Ambulance Serv. (1999) 20 Cal.4th 928, 932 [“the second sentence
applies only to the three-year maximum, not also to the one-year
period”]; see also Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824
[“concealment is an exception to the three-year, not one-year,
limitations period in section 340.5”].) Indeed, it would make no
sense for the fraud, concealment and foreign object exceptions to
apply to the one-year period which is triggered by a plaintiff’s
actual or imputed discovery. (§ 340.5.) The fraud, concealment
and foreign object exceptions address specific situations in which
a plaintiff faces exceptional challenges that prevented her from
earlier discovery of her injury. (See Wallace v. Hibner (1985)
171 Cal.App.3d 1042, 1050 [exceptions address circumstances
“where a patient would have no reason whatsoever to suspect
negligence”].)
iii. We disregard plaintiff’s undeveloped
claims to the benefit of other tolling
doctrines.
In two footnotes, plaintiff cites legal principles concerning
the effect of a fiduciary relationship or a trust relationship on a
plaintiff’s duty to discover her injury. But plaintiff offers no
explanation of how these principles operate on the facts of her
case. We may, and do here, disregard substantive legal
arguments presented only in such cursory fashion. (See, e.g.,
Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th
151, 160 [appellate court may disregard points raised in a
footnote rather than being properly presented under a discrete
heading with appropriate analysis].)

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

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J.

HARUTUNIAN, J.

 Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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