Zulli v. Balfe CA2/6

Filed 12/18/14 Zulli v. Balfe CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BRIAN ZULLI, 2d Civil No. B252230 (Super. Ct. No. 56-2011-00402118- Plaintiff and Appellant, CU-MM-SIM) (Ventura County) v.

DAVID BALFE,

Defendant and Respondent.

Brian Zulli appeals a summary judgment entered in favor of Doctor David Balfe. We conclude that the limitations period of Code of Civil Procedure section 340.5 precludes Zulli's cause of action for wrongful death, and affirm.1 FACTS AND PROCEDURAL HISTORY At the end of her life, 81-year-old Sylvia Zulli suffered from heart failure, vascular strokes, and pancreatic cancer with liver and lung metastases.2 During March through May 13, 2010, she was admitted to Los Robles Hospital, Simi Valley Hospital, and Cedars-Sinai Medical Center ("Cedars-Sinai"), and was treated by many physicians, nurses, and other medical professionals. Balfe was one of Sylvia's treating physicians during her hospitalization at Cedars-Sinai.

1 All further statutory references are to the Code of Civil Procedure. 2 We shall refer to the parties as "Brian" and "Sylvia," not from disrespect, but to ease the reader's task.

On August 12, 2011, Brian filed a complaint in propria persona against Balfe and others regarding Sylvia's allegedly negligent medical treatment. He later filed a first amended complaint, to which Balfe demurred. The trial court sustained the demurrer and permitted Brian leave to amend the first amended complaint. On March 16, 2012, Brian filed a 166-page second amended complaint alleging causes of action for elder abuse and neglect, gross negligence, failure to properly diagnose and properly treat, lack of informed consent, intentional infliction of emotional distress, criminal negligence, and wrongful death, among others. He requested compensatory and punitive damages against Balfe and many named defendants, including Cedars Sinai, Sylvia's medical insurers, and her treating physicians and nurses. Brian alleges that Sylvia died on May 13, 2010, when "a nurse instructed by D[r]. Balfe injected Sylvia's [intravenous line] with a substance that caused Sylvia's vitals to immediately drop. . . . Within a minute of the substance being administered to Sylvia Zulli's [intravenous line], Sylvia died. No code blue was ever issued. No one came until after Sylvia died." The injection and Sylvia's death occurred in Brian's presence. Balfe successfully demurred to all causes of action except the cause of action for wrongful death.3 On September 3, 2013, he moved for summary judgment regarding that action. In support of his motion, Balfe submitted the declaration of Doctor James D. Leo, an expert in internal medicine. Leo declared that he had reviewed Sylvia's medical records and that Balfe's treatment fell within the professional standard of care and did not contribute to Sylvia's death. That treatment included administering saline solution to Sylvia in response to her falling blood pressure. Sylvia did not respond to the saline solution, her heart rhythm slowed, and she soon died. Brian did not submit a declaration of an expert witness in response. He asserted in written argument, however, that Balfe had ordered morphine rather than saline for Sylvia's intravenous line. Brian