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Hines v. Serocki11/25/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff James A. Hines appeals a summary judgment in favor of defendant John Serocki, M.D., on Hines's complaint for medical malpractice. Hines contends the court erred in granting summary judgment on the ground his claim against Serocki was barred by the applicable one-year statute of limitations. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 1, 2000, Hines fractured his arm and leg as a result of being hit by a car. He was taken to Scripps Memorial Hospital where Serocki surgically repaired the fractures. Several days after the surgery, Hines realized part of his tibia had not fused to the rod that Serocki had surgically inserted. However, Serocki assured Hines the bone was healing.
During an office visit on December 19, 2000, Serocki determined the bone in Hines's leg was no longer straight and another surgery was needed to insert a larger rod. Hines attempted on numerous occasions to schedule the surgery with Serocki, but was unsuccessful. When Hines telephoned Serocki's office to complain about the pain in his leg, the doctor covering for Serocki suggested he go to the emergency room.
On January 9, 2001, Hines intended to go to the emergency room at Scripps Memorial Hospital, but instead was taken to the emergency room at University of California San Diego (UCSD) Medical Center. The examining physician took X-rays of Hines's leg and determined he needed to have it repaired immediately. Hines scheduled an appointment at UCSD where, on January 17, 2001, his orthopedic surgeon criticized Serocki for using a rod that was too small in diameter, causing Hines's leg to misalign.
Hines filed a complaint for medical negligence against Serocki and others on January 15, 2002. Serocki successfully moved for summary judgment on the ground Hines's claim against him accrued no later than January 9, 2001, and thus Hines's action was barred by the one-year statute of limitations of Code of Civil Procedure section 340.5. The court granted summary judgment and dismissed Hines's complaint.
DISCUSSION
A.
Summary judgment is proper only where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) A defendant moving for summary judgment based on an affirmative defense has the overall burden of showing there is a complete defense to the plaintiff's action. (§ 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 849.) In this regard, the defendant must first produce evidence to support a prima facie showing of the nonexistence of any triable issue of material fact as to the defense. (Id. at p. 850.) Once the defendant has met this initial burden of production, the burden shifts to the plaintiff to show the existence of a triable issue of one or more material facts as to that defense. (Ibid.; § 437c, subd. (o)(2).) The plaintiff may not rely on the mere allegations or denials of its pleadings to show a triable issue of material fact exists. (§ 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Company, supra, 25 Cal.4th at p. 849; Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464 & fn. 4; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.)
On appeal, we independently assess the correctness of the trial co
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