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.
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
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
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]
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
Defendants again demurred to
plaintiff's complaint on the same grounds. The trial court sustained the
demurrer without leave to amend.
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
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.
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.
Vallejo Development Co. v. Beck Development Co., supra, 24 Cal.App.4th at
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,
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
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.]"
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
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,
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.
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.
We affirm the trial court's
judgment. Defendants shall recover their costs on appeal.
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