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Davies-Hopper v. Sutter Lakeside Hospital12/22/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Margaret Davies-Hopper appeals an order dismissing her complaint for medical malpractice, which was entered on an order granting a motion for judgment on the pleading in favor of the defendants Alvin L. Hensel, M.D. and Valley Radiological Associates Medical Group, Inc. (hereafter Radiological Defendants) and an order sustaining without leave to amend the demurrers of defendants Jean Turner, D.P.M. and Sutter Lakeside Hospital. We reverse on procedural grounds without reaching the merits of the case.
PROCEDURAL BACKGROUND
In a complaint filed in Sonoma County Superior Court on January 9, 2002, plaintiff alleged that defendant Jean Turner, D.P.M., negligently removed a bone spur in her heel resulting "in instability and fracture of the heel bone" and that the other defendants thereafter failed to "diagnose and treat" the injury by, among other things, failing to properly interpret X-rays of the heel bone. Defendants responded by filing demurrers and a motion for judgment on the pleadings that raised the bar of the statute of limitations in Code of Civil Procedure section 340.5, and relied on discovery and filings in an earlier malpractice action filed by the plaintiff in Lake County. Jean Turner and Sutter Lakeside Hospital filed demurrers on March 22, 2002, and April 4, 2002, respectively; Radiological Defendants initially filed an answer and later filed on April 12, 2002, a motion for judgment on the pleadings.
The demurrer of Jean Turner was based on a request for judicial notice of the following documents: (1) a complaint for medical malpractice filed by plaintiff in Lake County Superior Court on October 22, 1999, against Sutter Lakeside Hospital, Mathew McQuaid, P.F.M., James M. Hagan, D.P.M., and Elyse Donald, M.D.; (2) two medical records of Sutter Lakeside Hospital attached as an exhibit to McQuaid and Hagan's motion for summary judgment in the Lake County action, specifically a record of plaintiff's treatment at the emergency care center of Sutter Lakeside Hospital on November 26, 1999, and an imaging report to Glen Pfeffer, M.D., dated January 12, 2000, prepared by a radiologist at the same hospital; and (3) a memorandum of points and authorities filed in support of McQuaid and Hagan's motion for summary judgment in the Lake County action.
The demurrer of Sutter Lakeside Hospital was supported by a declaration of Thomas E. Pfalzer to which were attached (1) the complaint filed by plaintiff on October 22, 1999, in Lake County, and (2) the imaging report to Glen Pfeffer, M.D., dated January 12, 2000.
The motion for judgment on the pleadings of Radiological Defendants was accompanied by a request for judicial notice and declaration of Janet Everson, both of which included as attachments the following documents: (1) a copy of the complaint for medical malpractice filed by plaintiff in Lake County on October 22, 1999; (2) an amendment to this complaint filed March 27, 2001, adding Alvin L. Hensel, M.D., as a defendant; (3) excerpts from plaintiff's deposition on January 18, 2002, in the Lake County action; and (4) excerpts from plaintiff's deposition on January 5, 2001, in the Lake County action.
On June 6, 2002, the Radiological Defendants filed an "(Amended) Request for Judicial Notice," and declaration of Janet Everson, which, in addition to the documents attached to the origi
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