University of Vermont AAHS

Haverstock v. Hoge

California Court of Appeal
UNPUBLISHED, 2003 WL 1788787
April 4, 2003

Summary of Opinion

Plaintiff Haverstock’s horse was injured she claimed as a result of defective strangles vaccine administered by defendant-veterinarian Hoge.  The trial court dismissed the lawsuit on the ground it was filed after the one-year professional malpractice statute of limitations had expired.  In this opinion, the Court of Appeal says that the lawsuit, despite being framed in other legal theories, was in essence a veterinary malpractice claim and was, therefore, barred by the one year statute.  Accordingly, it affirms the trial court dismissal of the lawsuit.

Text of Opinion

1. Introduction

After Margaret D. Haverstock's horses sustained injuries from receiving treatment with a new vaccine, plaintiff brought an action against her veterinarian Michael Hoge, D.V.M., Hoge's professional business, Murrieta Equine Associates, and the vaccine distributor and manufacturer. In this appeal, plaintiff challenges only the trial court's order sustaining Hoge and Murrieta Equine Associates' (hereafter defendants) demurrer to her second amended complaint. Plaintiff claims that the trial court erred in finding that the statute of limitations barred her causes of action. Plaintiff also claims that the trial court erred in finding that she failed to state facts sufficient to support her causes of action for intentional and negligent misrepresentation.

We conclude that all of plaintiff's causes of action, which arose out of Hoge's veterinary treatment of plaintiff's horses, were barred by the one‑year statute of limitations for professional negligence. Based on this conclusion, we do not reach plaintiff's second claim regarding the sufficiency of her pleadings. We affirm the trial court's judgment.

2. Factual and Procedural History

On May 19, 2000, plaintiff filed her original complaint alleging that on May 21, 1998, Hoge treated her purebred Arabian horses with the vaccine Pinnacle I.N. for the prevention of strangles, a disease affecting horses. Specifically, plaintiff alleged that defendants "... recommended, prescribed, sold, dispensed and administered Pinnacle to [plaintiff's] equines...." After being treated with the vaccine, plaintiff's horses had abscesses and secondary infections that caused permanent scarring, lameness, and other injuries. Plaintiff alleged the following four causes of action: negligence; strict product liability; breach of express warranty; and breach of implied warranty.

Defendants demurred to plaintiff's complaint on the ground that her causes of action were barred under the statute of limitations for professional negligence contained in Code of Civil Procedure section 340.5. When the trial court overruled defendants' demurrer, defendants filed a petition for writ of mandate in this court. In ruling on defendants' petition, we held that, regardless of how plaintiff characterizes her claims, sections 340.5 and 340 barred plaintiff's action against a veterinarian who supplies and administers medication to a horse. We ordered the trial court sustain defendants' demurrer with leave to amend.

Plaintiff filed her first amended complaint alleging that defendants simply sold the product to plaintiff to administer to her horses. In this complaint, plaintiff alleged the following causes of action: negligence; strict product liability; breach express warranty; and breach of implied warranty. [FN2]

FN2. Plaintiff's first amended complaint also included a fifth cause of action for fraud against the vaccine manufacturer and distributor.

Defendants again demurred to plaintiff's complaint on the grounds that her causes of action were barred by the statute of limitations and failed to state sufficient facts to support her claims. The trial court sustained defendants' demurrer with leave to amend.

On January 7, 2002, plaintiff filed her second amended complaint, which again eliminated any references to Hoge's veterinary services, contained the following causes of action against defendants: strict products liability; breach of express warranty; breach of implied warranty; intentional misrepresentation; negligent misrepresentation; professional malpractice; and breach of oral agreement. In the last four causes of action, plaintiff alleged that defendants intentionally or negligently represented to plaintiff that the vaccine was safe and had a proven track record.

Defendants again demurred to plaintiff's complaint on the same grounds. The trial court sustained the demurrer without leave to amend.

3. Discussion

In challenging the trial court ruling on defendants' demurrer, plaintiff argues that neither section 340.5 nor section 340 applies to bar plaintiff's causes of action because she alleged that Hoge was simply a retailer for the vaccine, not a veterinarian using the vaccine during the course of providing services. Plaintiff also argues that these statute of limitation provisions did not operate to bar the causes of action added to her second amended complaint because she had not discovered defendants' misrepresentation until about two months before she filed her second amended complaint.

A. Standard of Review

In evaluating a challenge to a trial court's ruling on a demurrer, we independently review the record to determine whether the complaint sufficiently states a cause of action under any possible legal theory. In making this determination, we assume the truth of all properly pleaded material facts.  We uphold the court's decision to sustain a demurrer on any sufficient ground stated in the demurrer irrespective of whether the court relied upon that ground. If we conclude that the court properly sustained the demurrer, we then determine whether the court abused its discretion in granting or denying leave to amend. The court abuses its discretion in denying leave to amend if the plaintiff demonstrates a reasonable probability that any defect in the complaint could have been cured by amendment.

B. Statute of Limitations

Under section 340, subdivision (c), a one‑year statute of limitations applies to an action against any person, who practices veterinary medicine, for neglect resulting in injury or death. The general rule is that an action begins to accrue on the date of injury. The discovery rule, however, provides an exception to this rule. Under the discovery rule, which the date the cause of action accrues is delayed until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered the injury and the negligent cause of the injury. Under the common law discovery rule, the plaintiff bears the burden of setting forth affirmative allegations to explain the late filing.

Section 340.5 provides that an action against a health care provider must be brought on or before three years from the date of injury or one year from the date of discovery. A veterinarian qualifies as a health care provider. "This rule sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. [Citation.] The first to occur under these two tests begins the limitations period."  [FN13] As with its legal malpractice counterpart, the medical malpractice provision does not incorporate the common law discovery rule, but, instead, includes a distinct statute of limitations defense based on the date of injury. To apply this provision, the defendant must prove each fact necessary to establish that the time between the plaintiff's discovery of the injury and the filing of the complaint exceeded the statutory period.

FN13. Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.

C. Second, Third, and Fourth Causes of Action

Plaintiff claims that the trial court erred in finding her strict product liability and breach of express and implied warranty causes of action barred under the statutes of limitations in sections 340 or 340.5. Plaintiff argues that these provisions do not apply because she did not include a specific allegation of professional negligence. She also claims that defendants failed to satisfy their burden of proving the affirmative defense that plaintiff's claim was untimely under the delayed discovery provision of section 340.5.

Plaintiff's first argument repeats the same issue raised and addressed in the petition for writ of mandate. As stated in our earlier opinion, regardless of how plaintiff frames her claim, if the claim is essentially one involving a patient and a provider of medical services, or, as here, animal patients and the provider of veterinary services, then sections 340 or 340.5 would apply. After we issued our opinion, plaintiff amended her complaint by replacing, in the description of Hoge's conduct, the words "recommended, prescribed, sold, dispensed and administered" with the word "sold." This change, however, did not affect the underlying fact that Hoge sold (or treated plaintiff's horses with) the vaccine in the course of providing professional services.

As argued by defendants, plaintiff's amended pleadings are simply attempts to avoid the defects in her original complaint. Although the amended complaint usually replaces the original pleading, the original pleading may be examined to determine whether the amended complaint is merely a sham. "... The rationale for this rule is obvious. 'A pleader may not attempt to breathe life into a complaint by omitting relevant facts that made his previous complaint defective.' [Citation.] Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is 'not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.' [Citation.]"  [FN20] Rather, the court may rely on the factual allegations in the original complaint, which are still binding on the plaintiff.

FN20. Vallejo Development Co. v. Beck Development Co., supra, 24 Cal.App.4th at page 946.

Based on the inconsistencies between plaintiff's original complaint and her second amended complaint, the court was entitled to rely on the earlier factual allegations. In light of these allegations, the one‑year statute of limitations under sections 340 or 340.5 would bar plaintiff's action.

Plaintiff filed her original complaint on May 19, 2000. In her complaint, plaintiff alleged that, on May 21, 1998, Hoge prescribed and administered Pinnacle I.N. to plaintiff's horses. Plaintiff also alleged that, on or after that date, as a direct and proximate cause of administering the vaccine, the horses were injured and suffered from "abscesses and secondary infections that created permanent scarring, disfigurement, lameness, osteoarthritis and other injuries."

As stated earlier, the general rule is that a plaintiff's cause of action begins to accrue on the date of injury. If we take May 21, 1998, as the date of injury, plaintiff's action would be barred by the one‑year statute of limitations under section 340, subdivision (c).

Moreover, under either the common law discovery rule as applied to section 340, subdivision (c), or the statutory discovery provision under section 340.5, the plaintiff should have discovered the injury and its negligent cause shortly after Hoge administered the vaccine in May of 1998. Under both provisions, a cause of action begins to accrue one year after the date of discovery. While it is true, as plaintiff argues, that the two provisions differ as to the party who bears the burden of proving the date of discovery, as mentioned above, plaintiff's allegations on their face indicate that the statute of limitations period expired long before plaintiff filed her original complaint in May of 2000.

When a plaintiff suspects a factual basis for the elements of his cause of action, he is put on inquiry to discover the additional facts necessary to file his claim. Plaintiff admits that, on or after May 21, 1998, her horses were injured as a result of Hoge's treatment with the vaccine. At the time, Hoge told plaintiff that the vaccine would prevent secondary infections and not cause adverse side effects. After Hoge administered the vaccine, however, the horses immediately showed visible manifestations of injury, including abscesses and secondary infections. By the time plaintiff filed her complaint, the horses also suffered permanent injuries, including scarring, disfigurement, lameness, and osteoarthritis. Based on the initial manifestations of injury, which were directly caused by the vaccine, plaintiff had reason to suspect that someone did something wrong. Based on this suspicion, plaintiff should have discovered additional facts necessary to bring her causes of action. Plaintiff, however, waited about two years before she filed her original complaint. Therefore, under either the common law discovery rule or the statutory discovery provision of section 340.5, plaintiff's action was untimely.

We conclude plaintiff's second, third, and fourth causes of action against defendants were barred under section 340, subdivision (c), or section 340.5. Accordingly, the trial court properly sustained defendants' demurrer.

D. Sixth, Seventh, Eighth, and Ninth Causes of Action

Plaintiff also claims the trial court erred in finding that the causes of action against defendants for intentional and negligent misrepresentation, professional malpractice, and breach of oral agreement were barred under the one‑year statute of limitations contained in sections 340, subdivision (c), or 340.5. Plaintiff contends that, instead of the one‑year statute of limitations, the three‑year statute of limitations in section 338, subdivision (d), applies to these new claims. Plaintiff also contends that, based on her delayed discovery of Hoge's wrongful conduct, namely, his misrepresentation that he would not treat plaintiff's horses with any newly released drug, her new causes of action did not begin to accrue until the time of her discovery, which was after she filed her original complaint on May 19, 2000. Plaintiff therefore claims that, because she added these causes of action within two years of discovering the falsity of Hoge's representations with regard to the drug Pinnacle I.N., her causes of action should have survived demurrer.

Again, despite plaintiff's efforts to overcome the defects in her original complaint, plaintiff still fails to recognize that the fundamental nature of her claim against defendants does not change by simply amending her complaint and using different labels. " 'In ruling upon the applicability of a statute of limitations, it has been recognized that courts will look to the nature of the rights sued upon rather than to the form of action or to the relief demanded. Neither the caption, form, nor prayer of the complaint will conclusively determine the nature of the liability from which the cause of action flows. Instead, the true nature of the action will be ascertained from the basic facts....' [Citations.]"  [FN27]

FN27. Rivas v. Safety‑Kleen Corp., supra, 98 Cal.App.4th at page 229.

Section 340.5 applies to all cases arising from a physician's negligence in diagnosing or treating a patient, including claims for fraudulent or negligent misrepresentation. Regardless of how they are characterized, such causes of action are essentially based upon professional negligence. "The one‑ year statute of limitations is applicable even where, as here, the plaintiff‑patient alleges a cause of action for deceit based on the physician's false representations or fraudulent concealment of the nature and extent of the injury. Such a cause of action has always been treated as one for malpractice. [Citations.]"  [FN29] The same would apply to a cause of action based on a veterinarian's false representations concerning the safety and efficacy of his prescribed treatment.

FN29. Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 227; see also Trantafello v. Medical Center of Tarzana (1986) 182 Cal.App .3d 315, 322, footnote 6.

The causes of action added to plaintiff's second amended complaint essentially were tied to Hoge's negligence in treating her horses. While she frames her claims in terms of intentional or negligent misrepresentations, any statements concerning Hoge's practice of administering only safe drugs with a proven track record were made during the course of providing veterinary services. Therefore, for the reasons stated in the previous section, the statute of limitations for negligence by a veterinarian under section 340 or the statute of limitations for negligence by a health care provider under section 340.5 apply to plaintiff's new causes of action. The record indicates that plaintiff added her new causes of action beyond even the three‑year statute of limitations under section 340.5.

Plaintiff, however, alternatively argues that, even if section 340.5 applies, the statute was tolled by defendants' fraud. Although fraud and intentional concealment are exceptions to the three‑year statute, the conduct constituting the fraud or intentional concealment must have prevented the plaintiff from bringing the action before the expiration of the statutory period. "[I]ntentional concealment requires something more than a mere continuation of the prior nondisclosure."  [FN33] As evident from plaintiff's opening brief, the same misrepresentations‑‑i.e., defendant's statements concerning the vaccine‑‑form the basis for the cause of action and the claim of fraud under section 340.5. Hence, plaintiff's claim of fraud fails to toll the statute of limitations.

FN33. Trantafello v. Medical Center of Tarzana, supra, 182 Cal.App.3d at page 321.

In short, we conclude that, because plaintiff's causes of action for intentional and negligent misrepresentation, professional negligence, and breach of oral contract arose out of Hoge's negligent treatment of plaintiff's horses, they are barred by the statute of limitations contained in sections 340, subdivision (c), and 340.5. We also conclude that plaintiff's attempt to apply the fraud exception under section 340.5 also fails because it relies on the same complained‑of conduct that forms the basis for the causes of action.

The trial court, therefore, properly sustained defendants' demurrer on the ground that plaintiff's claims were barred under the applicable statute of limitations. Based on this conclusion, we need not address the alternative ground for sustaining defendants' demurrer, namely, whether plaintiff stated facts sufficient to support the causes of action.

4. Disposition

We affirm the trial court's judgment. Defendants shall recover their costs on appeal.


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