Porter v. Mehraban CA1/1

Filed 8/18/15 Porter v. Mehraban CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

REGINA PORTER, Plaintiff and Appellant, A143457 v. MASOUD MEHRABAN et al., (Solano County Super. Ct. No. FCS042844) Defendants and Respondents.

This is an appeal after the trial court sustained defendants’ demurrer without leave to amend. Plaintiff in her complaint alleged defendants Dr. Mehraban and his employer, Kaiser Foundation Hospitals (Kaiser), engaged in medical malpractice in the treatment of her ankle injury. The demurrer by defendants focused on the statute of limitations. The trial court agreed. We have reviewed the record and affirm the trial court here. STATEMENT OF FACTS AND PROCEDURAL HISTORY In her first amended complaint (FAC), Regina Porter (Porter or plaintiff) alleges that on December 31, 2010, she fell backwards from a walkway in her apartment complex while making way for a neighbor to pass. She believed she suffered an ankle sprain and did not seek immediate medical attention. Over the next two days, the pain became worse and she went to the Kaiser emergency center on January 2, 2011. She was examined by defendant Dr. Mehraban, who advised her she had an ankle sprain and “prescribed bed rest, ibuprofen, and a pair of crutches.”

Plaintiff alleges the pain continued after her visit on January 2. It became “unbearable.” Porter returned to Kaiser on January 18, 2011, where she was treated by a different person, Dr. Grundahl. Grundahl advised plaintiff she sustained a ruptured Achilles tendon when she fell on December 31, and that corrective surgery was needed immediately. Grundahl also reviewed the medical records of her January 2 visit with defendant Dr. Mehraban. On January 26, 2011, plaintiff had surgery on her Achilles tendon and then physical therapy under the direction of Dr. MacLachlan. During August 2011, plaintiff sued the owner of the apartment complex where she fell and injured herself. A nonsuit was granted during the trial of that matter on February 7, 2013, after plaintiff completed her case. On January 2, 2014, plaintiff filed her original complaint against Dr. Mehraban and Kaiser. On March 13, 2014, she filed her FAC. Plaintiff alleged Dr. Mehraban “failed to correctly diagnose the nature of the lower leg injury Plaintiff suffered on December 31, 2010, and/or to properly treat said injury.” In the FAC, she alleges Kaiser was vicariously liable for the negligent conduct of Dr. Mehraban. Within her FAC, plaintiff explains her failure to file her suit closer to the time of the alleged malpractice, claiming she has “no medical background, education, or training, and had no means to discover [any] misconduct, negligence, or culpability of Defendants during the time that Plaintiff was their patient.” She only discovered the negligence “[w]ithin one year last past.” In their demurrer, filed on May 6, 2014, defendants alleged the FAC was defective because the applicable statute of limitations had expired. (Code Civ. Proc., § 340.5.1) That statute provides medical malpractice claims are to be commenced “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.”