Filed 6/19/15 Butler v. Paraguya et al. CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR


MICHAEL E. BUTLER,
         Plaintiff and Appellant,
                                                                     A138792
v.
LAUREEN PARAGUYA ET AL.,                                             (San Francisco County
                                                                     Super. Ct. No. 512116)
         Defendants and Respondents.


         Plaintiff Michael Butler appeals judgments of dismissal entered after the trial court
sustained defendants’1 demurrers without leave to amend on the ground that his claims
are barred by the one-year statute of limitations for medical malpractice. (Code Civ.
Proc.,2 § 340.5.) He contends his action was based on fraud, not medical malpractice,
and accordingly the court should have applied the three-year limitations period for fraud.
(§ 338, subd. (d).) We agree that plaintiff’s action is barred by the statute of limitations
for medical malpractice, and accordingly we shall affirm the judgment.




         1
        The named defendants are Allan Pont, M.D., St. Luke’s Hospital (St. Luke’s),
Sutter Health West Bay Hospitals, and California Pacific Medical Center (collectively,
the Hospital Defendants) and Laureen Paraguya, M.D. According to the operative
complaint, California Pacific Medical Center took over St. Luke’s from its affiliate Sutter
Health in 2007.
         2
       All undesignated statutory references are to the California Code of Civil
Procedure.


                                                             1
                                     I. BACKGROUND
   A. The Original Complaint
       Plaintiff filed this action3 against Dr. Laureen Paraguya and 50 Doe defendants on
June 29, 2011, alleging causes of action for medical malpractice, fraud, intentional
infliction of emotional distress, and negligent infliction of emotional distress. According
to the complaint, plaintiff was hospitalized with kidney failure at St. Luke’s in May 2007.
While he was there, Dr. Paraguya told him he was not in immediate danger from uremia
and therefore did not need to begin dialysis for a number of weeks, which would allow
time for plaintiff to establish himself with a doctor at San Francisco General Hospital as
an outpatient and receive treatment there. Dr. Paraguya told plaintiff falsely that she had
consulted with a nephrologist who had treated him in the past, Dr. Iliya. Dr. Paraguya
told plaintiff that Dr. Iliya had seen his test results and did not need to see him unless he
was ready to consent to dialysis. However, these statements were false: Dr. Iliya later
told plaintiff that he did not consult with Dr. Paraguya about the case in May 2007, that
he was not aware of plaintiff’s hospitalization, and that he would have seen plaintiff if
Dr. Paraguya had made a referral. Dr. Paraguya wrote in plaintiff’s chart that he refused
to consider dialysis; in fact, according to the complaint, he had agreed to dialysis if he
were in danger from uremia. Plaintiff further alleged that two days after he was
discharged from St. Luke’s, he “collapsed” and was admitted to another hospital, where a
team of nephrologists urged him to begin emergency dialysis. The following day, he was
diagnosed with a potentially fatal heart condition that was a complication of uremia. In
his cause of action for fraud, plaintiff alleged that after he received his medical records
from St. Luke’s in March 2008, he realized Dr. Paraguya had lied to him and manipulated
his chart.
   B. First Through Fourth Amended Complaints
       Plaintiff filed a first amended complaint on September 15, 2011, alleging a single
cause of action for fraud against Dr. Paraguya based on her allegedly false representations

       3
           Plaintiff acted in propria persona throughout these proceedings.


                                               2
that Dr. Iliya knew of his admission, had seen his test results, and had advised her.
Dr. Paraguya demurred to the first amended complaint on the grounds that the fraud
cause of action was time-barred by the three-year limitations period of section 338,
subdivision (d), and that the cause of action for fraud was uncertain because it sought to
“twist a garden variety medical negligence case” into one for fraud. On October 27,
2011, the court sustained the demurrer as to the statute of limitations issue with leave to
amend.
       Butler filed a second amended complaint, in which he detailed the reason he
mistakenly identified March 2008 as the date of discovery of the fraud in his initial
complaint. Butler explained that he first ordered his medical records in February 2008.
When he received them in March 2008, he believed he had received incomplete records
because they did not include any notes from a nephrologist and he mistakenly believed
that the records contained the notes of a nurse, rather than Dr. Paraguya. He looked at the
records only briefly at that time. Butler alleged he again ordered his records in
June 2008, and received them in August 2008. He then realized that the allegedly
inaccurate progress notes had been made by Dr. Paraguya. He believed he was
investigating a malpractice claim against Dr. Iliya as well as Dr. Paraguya, and thought
the records were missing the nephrology notes. He again requested the records, and
received them in November 2008. When he saw nothing from the nephrologist, he began
to suspect Dr. Paraguya had committed fraud.
       Dr. Paraguya demurred to the second amended complaint on the ground that it was
barred by the three-year statute of limitations for fraud. The trial court overruled the
demurrer on the ground that Butler’s explanation for the change of the date of discovery
of fraud was sufficient to prevent him from being bound by his prior allegation that he
discovered the fraud in March 2008.
       On June 12, 2012, plaintiff filed his third amended complaint, which named the
Hospital Defendants and asserted causes of action for fraud and negligent infliction of
emotional distress. Dr. Paraguya demurred to the third amended complaint on the
grounds that plaintiff failed to state facts sufficient to constitute causes of action for fraud


                                               3
and negligent infliction of emotional distress, and the trial court overruled the demurrer.
The Hospital Defendants also demurred to the third amended complaint, on the ground
that it was time-barred by the section 340.5, which sets forth the statute of limitations for
actions against health care providers for professional negligence. The trial court
sustained the Hospital Defendants’ demurrer with leave to amend. In doing so, the court
stated that plaintiff could also attempt to allege a cause of action for “patient dumping”
under the Emergency Medical Treatment and Active Labor Act (EMTALA)
(42 U.S.C. § 1395dd) if he could do so in good faith.
       Plaintiff then filed a fourth amended complaint, asserting a single cause of action
for fraud. The trial court sustained the demurrers of Dr. Paraguya and the Hospital
Defendants with leave to amend, ruling the claims were barred by the statute of
limitations found in section 340.5.
   C. Fifth Amended Complaint
       We now reach the operative complaint in this action. Plaintiff filed a fifth
amended complaint alleging a single cause of action for fraud against all defendants. As
the basis for his claim, he alleged the following: He was hospitalized at St. Luke’s in
May 2007 and received medical treatment there. His primary physician, Dr. Paraguya,
informed him falsely that Dr. Iliya knew of his admission, had seen his test results, and
was advising Dr. Paraguya. Plaintiff relied on this false information, which led him to
believe he had been screened and assessed properly before being approved for discharge.
Dr. Paraguya did not allow plaintiff to ask the nephrologist any questions about his
condition, thus concealing from him the immediate danger of uremia.
       Plaintiff alleged he filed a grievance while he was still a patient in May 2007 on
the grounds that he was being discharged too soon, that he had not been seen by a
nephrologist, and that without a nephrology evaluation, he did not know whether he
should undergo dialysis. St. Luke’s director of nursing dismissed the grievance without
investigation. Plaintiff filed a second grievance in July 2009, complaining that
Dr. Paraguya treated him without a nephrologist and lied in his chart. When he did not
receive a reply from the hospital, he reported the grievance to the California Department


                                              4
of Public Health (DPH) in October 2009. Four months later, in February 2010, DPH
received a letter from defendant Dr. Pont, California Pacific Medical Center’s Vice
President of Medical Staff Affairs, dated August 2009, indicating the hospital had
investigated his grievance and found it lacked merit. The letter noted that Dr. Iliya had
said he would have been happy to see plaintiff if he had agreed to dialysis. Plaintiff
alleged he did not receive a copy of the letter until the middle of April 2010, that the
letter was a fabrication, and that the letter was the last overt act of a conspiracy among
the defendants to deceive him and DPH.
       Plaintiff alleged that, in early May 2010, DPH sent plaintiff a letter indicating it
had investigated his grievance and found his claims unsubstantiated. The letter stated,
“The discharge summary dated May 4, 2007 indicated the nephrologist was aware of
admission and could not help the patient until he wanted dialysis. [¶] This complaint
was directed to the medical director who spoke directly to the attending physician and the
nephrologist. The nephrologist confirmed they were in communication about the case
and that the nephrologist only needed to see the patient if the patient was ready to start
dialysis.” Plaintiff alleged that, in May 2010, plaintiff spoke with Dr. Iliya, who told him
he had not performed the emergency screening during his May 2007 hospital stay and
that no one had spoken with him about plaintiff since he last treated him in
February 2007, three months before the hospital stay.
       Plaintiff also alleged he was given false information about where he could obtain
the medications he needed upon his discharge in May 2007.
       Both Dr. Paraguya and the Hospital Defendants filed demurrers to the fifth
amended complaint, alleging, inter alia, that it was barred by the statute of limitations.
(§ 340.5.) The trial court ruled that plaintiff’s action was time-barred by section 340.5,
the statute of limitations for medical malpractice. The court sustained the demurrers
without leave to amend. Plaintiff has appealed the ensuing judgments.




                                              5
                                     II. DISCUSSION
       Butler contends the fifth amended complaint alleges fraud as an intentional tort
and that his claim is therefore not barred by the statute of limitations for professional
negligence.
   A. Standard of Review
       In reviewing the sufficiency of a complaint against a demurrer, “[w]e treat the
demurrer as admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law. [Citation.] We also consider matters which may be
judicially noticed.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “ ‘ “A demurrer based
on a statute of limitations will not lie where the action may be, but is not necessarily,
barred. [Citation.] In order for the bar . . . to be raised by demurrer, the defect must
clearly and affirmatively appear on the face of the complaint; it is not enough that the
complaint shows that the action may be barred. [Citation.]” [Citation.]’ [Citation.]”
(Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010)
48 Cal.4th 32, 42.) “[W]hen [a demurrer] is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by amendment: if it
can be, the trial court has abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318; and see Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [“ ‘Plaintiff
must show in what manner he can amend his complaint and how that amendment will
change the legal effect of his pleading. [Citation.]’ [Citation.]”].)
   B. Section 340.5 Bars this Action
       Section 340.5 provides in pertinent part: “In an action for injury or death against a
health care provider based upon such person’s alleged professional negligence, the time
for the commencement of action shall be 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. In no event shall the time for
commencement of legal action exceed three years unless tolled for any of the following:


                                              6
(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign
body, which has no therapeutic or diagnostic purpose or effect, in the person of the
injured person.”
       The first question we face is whether the applicable statute of limitations is found
in section 340.5 or whether we should apply the three-year limitations period for fraud
found in section 338, subdivision (d), which applies to “[a]n action for relief on the
ground of fraud or mistake. The cause of action in that case is not deemed to have
accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or
mistake.” Plaintiff contends the fifth amended complaint states a cause of action for an
intentional tort, fraud, and accordingly is subject to the limitations period of section 338,
subdivision (d). Defendants, on the other hand, contend the trial court properly applied
the statute of limitations for medical malpractice.
       Section 340.5 is part of Medical Injury Compensation Reform Act (MICRA),
which was designed to “ ‘ “reduce the cost and increase the efficiency of medical
malpractice litigation by revising a number of legal rules applicable to such
litigation.” ’ ” (Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514.) “The
problem is that additional causes of action frequently arise out of the same facts as a
medical malpractice cause of action. These may include battery, products liability,
premises liability, fraud, breach of contract, and intentional or negligent infliction of
emotional distress. Indeed, a plaintiff hoping to evade the restrictions of MICRA may
choose to assert only seemingly non-MICRA causes of action. Thus, when a cause of
action is asserted against a health care provider on a legal theory other than medical
malpractice, the courts must determine whether it is nevertheless based on the
‘professional negligence’ of the health care provider so as to trigger MICRA. [¶] The
answer is sometimes yes and sometimes no, depending on the particular cause of action
and the particular MICRA provision at issue. [Citations.]” (Ibid.)
       Two cases are particularly relevant to our analysis of this question. The plaintiff
in Tell v. Taylor (1961) 191 Cal.App.2d 266, 267–268 (Tell), asserted causes of action for
malpractice and deceit against an osteopathic physician. The plaintiff had fallen and


                                              7
injured her hip. The defendant assured the plaintiff she would sustain no permanent
injury. After X-rays revealed a fracture, the defendant told her the bone would heal in the
course of time and she should be patient and wait. (Id. at pp. 268–269.) Division Two of
the First Appellate District concluded both causes of action were barred by the one-year
statute of limitations for medical malpractice. Responding to the plaintiff’s contention
that the cause of action for deceit was subject to the three-year limitations period for
fraud, the court stated, “[A]ppellant has cited no authority in this state or elsewhere to
indicate that it is possible to extend the statute of limitations in a personal injury action by
bringing it on a theory of fraud. Rather, even though the plaintiff alleges false
representations on the part of the physician or fraudulent concealment, our courts have
always treated the action as one for malpractice [citations].” (Id. at p. 271.)
       Division One of the First Appellate District followed Tell in deciding Weinstock v.
Eissler (1964) 224 Cal.App.2d 212 (Weinstock). The plaintiff there brought an action
against his treating physicians and a hospital. (Id. at p. 217.) The plaintiff alleged he had
consented to a cerebral angiogram, but not to a spinal tap. (Id. at p. 219.) Nevertheless,
his doctors performed a spinal tap at the same time as the angiogram, causing the plaintiff
to suffer injuries. (Id. at pp. 217–219.) In order to conceal the fact that the spinal tap was
performed and the negligence with which the procedures were performed, the doctors did
not disclose the spinal tap to the plaintiff and failed to enter any facts about the
procedures into the medical records. (Id. at p. 217.) The doctors assured the plaintiff that
his condition would substantially improve over a period of time. (Id. at p. 218.) The
plaintiff did not learn about the spinal tap until he took the deposition of an
anesthesiologist. (Id. at pp. 217–218.) He asserted causes of action for malpractice,
battery, and deceit. (Id. at pp. 217–220.) In considering whether the action was barred
by the statute of limitations, the court stated, “The one-year statute of limitations [for
malpractice] 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



                                               8
one for malpractice. [Citations.]” (Id. at p. 227, citing Tell and Garlock v. Cole (1962)
199 Cal.App.2d 11, 15.)
       The court later considered whether the allegations of the deceit cause of action,
which were added in an amended complaint, related back to the filing of the original
complaint. The court answered that question in the affirmative, stating, “The factual
nucleus of each count was the commission of the tortious act, negligent or intentional.
[¶] . . . The defendant’s act for which plaintiff seeks recovery is the same—the
performance of the cerebral angiogram and spinal tap. The primary right for the violation
of which he seeks recovery is the same—the wrongful invasion of his body although its
statement now appears in terms of fraud. Nevertheless, realistically examined, the
allegations relating to defendant’s false representations and plaintiff’s reliance thereon
are prefatory to the central allegations of the count, namely defendant’s performance of
the operation and plaintiff’s resulting injuries. All three counts against defendant Cross
involve the same wrong, the invasion of plaintiff’s body by certain acts: count one states
that such acts were negligently performed; count two states that they were performed
without plaintiff’s consent; count three states that they were performed under false
representations that they were routine, harmless and necessary.” (Weinstock, supra,
224 Cal.App.2d at pp. 234–235.)
       Here, as in Weinstock, the factual nucleus of the fraud claim is indistinguishable
from a claim for malpractice. The gravamen of Butler’s complaint is that Dr. Paraguya
failed to consult a nephrologist before discharging him, that she lied in order to cover up
her professional failure, and that he suffered injuries through being discharged without
proper treatment. Thus, in effect, plaintiff contends that because of Dr. Paraguya’s
tortious actions, he did not receive adequate medical care and suffered resulting harm.
As a result, we conclude the statute of limitations for medical malpractice applies to the
fraud cause of action.
       We are not persuaded otherwise by the authorities plaintiff cites. The district court
in Romar v. Fresno Cmty. Hosp. & Med. Ctr. (E.D. Cal. 2008) 583 F.Supp.2d 1179,
1182, 1187 (Romar), held that a disparate treatment claim under EMTALA (42 U.S.C.


                                              9
§ 1395dd) was not subject to MICRA’s noneconomic damages limitation (Civ. Code,
§ 3333.2). The district court concluded that a disparate screening claim is based not on
violation of the professional standard of care but on the failure to apply the same
screening standards to each patient. However, plaintiff does not purport to state a cause
of action under EMTALA, and nothing in Romar calls into question the well-established
rule of Tell and Weinstock.
       Plaintiff also draws our attention to Perry v. Shaw (2001) 88 Cal.App.4th 658,
668–669 (Perry), which held that the noneconomic damages limitation of Civil Code
section 3333.2 did not apply to a battery claim that was based on a doctor’s action in
performing a breast augmentation to which the patient had not consented, because the
cause of action was not based on professional negligence as defined by MICRA. There is
no contention here that defendants engaged in battery on plaintiff.
       A more nuanced question is presented by Nelson v. Gaunt (1981)
125 Cal.App.3d 623 (Nelson). The plaintiff there sought breast implants from the
defendant. He told her implants would not be satisfactory but that he had an alternate
procedure that would be simple and free of side effects, involving the injection of an
“inert substance” that she later learned was silicone. (Id. at p. 629.) The defendant had
been arrested a few months previously for using silicone, which was considered
dangerous for use in human body tissue, and was told that using it without a permit was
against the law. (Id. at pp. 629–630.) The plaintiff later had a double mastectomy after
masses were found in her breasts. (Id. at p. 631.) She brought an action against the
doctor alleging malpractice, battery, and fraud, and the trial court ruled the malpractice
claim was barred by the one-year statute of limitations. (Id. at pp. 631–632.) Relying on
Tell and Weinstock, the defendant contended all the causes of action were for injuries as a
result of medical treatment and were therefore barred by the statute of limitations for
medical malpractice. (Id. at p. 632.)
       The appellate court in Nelson rejected this argument and concluded the statute of
limitations for fraud could properly be applied. The court first noted that in Tell and
Weinstock, the plaintiffs sought treatment for an injury or illness, and that the defendant


                                             10
in Nelson was well and seeking an elective procedure. (Nelson, supra, 125 Cal.App.3d at
pp. 632–633.) The court went on to reason that the evidence showed the doctor knew his
use of silicone was illegal, but that he nevertheless injected the patient without telling her
the name of the substance, that it could be used only under certain circumstances, that its
use required state or federal approval, and that he did not have a permit. (Id. at p. 635.)
The evidence indicated the procedure to which the plaintiff consented was substantially
different from that which the doctor performed and that it was sufficiently different to
amount to a battery. (Ibid.) The court held that in the circumstances, the patient could
maintain a cause of action for fraud, to which the longer limitations period for fraud
applied. (Id. at p. 636.) Nelson, then, like Perry, is at base a case of battery. Not so here.
Plaintiff does not contend defendants lied to him about the nature of the treatment he was
receiving and as a result performed procedures on him to which he did not consent.
       Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343,
is likewise factually distinguishable. After receiving fertility treatments at a clinic, the
plaintiffs brought an action alleging the defendants had stolen their human genetic
material and had sold some for research and implanted some pre-embryos into different
women without the plaintiffs’ consent. (Id. at pp. 349–350.) The Court of Appeal
concluded the causes of action for fraud, conversion, and intentional infliction of
emotional distress were not subject to the limitations period of section 340.5, reasoning,
“None of the patients assert the egg harvesting medical procedures fell below the
standard of care. Rather it is the intentional and malicious quest to steal genetic material
that is the focus of the lawsuit.” (Id. at pp. 355–356.) Here, although plaintiff has
couched his allegations in terms of intentional fraud, the focus of his lawsuit is that he
suffered a collapse and had to undergo emergency medical procedures because he was
discharged without having received a proper assessment by a nephrologist.
       Finally, So v. Shin (2013) 212 Cal.App.4th 652, does not assist plaintiff. There, a
patient underwent a dilation and curettage procedure following a miscarriage, received
inadequate anesthesia, and awoke during the procedure, experiencing pain and
discomfort. Afterward, she asked the anesthesiologist why she had awakened; the doctor


                                              11
became upset and showed her a container of blood and other materials, and later grabbed
her hand and asked her to keep quiet about the incident. (Id. at pp. 657–658.) The
appellate court concluded the statute of limitations for medical malpractice did not apply
to the plaintiff’s claims against the anesthesiologist because the wrongful actions were
undertaken for the purpose of persuading the plaintiff not to report her to the hospital, not
for the purpose of delivering care to the plaintiff. (Id. at p. 667.) No such facts exist
here.
        Plaintiff argues, however, that because Dr. Paraguya was not a nephrologist, she
was acting outside the scope of her license and therefore her actions did not constitute
professional negligence. For this, he relies on Civil Code section 3333.2, which limits
noneconomic damages for professional negligence by a health care provider, “provided
that such services are within the scope of services for which the provider is licensed and
which are not within any restriction imposed by the licensing agency or licensed
hospital.” (Civ. Code, § 3333.2, subd. (c)(2); and see § 340.5.) Plaintiff provides no
authority for the proposition that the services Dr. Paraguya provided were outside the
scope of her license.
        We agree with the trial court, accordingly, that the applicable statute of limitations
is that found in section 340.5. Thus, plaintiff was required to bring his action within
“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.”
The three-year period may be tolled for proof of fraud or intentional concealment, but in
any case, the one-year period begins to run when the plaintiff discovers or should have
discovered the injury. (§ 340.5; Graham v. Hansen (1982) 128 Cal.App.3d 965, 974–
975.)
        The fifth amended complaint shows on its face that plaintiff filed a grievance
against Dr. Paraguya on May 4, 2007, while he was still a patient at the hospital,
complaining he was being discharged too soon, that Dr. Paraguya had refused to refer
him to the nephrologist, and that without a nephrology evaluation he could not be sure
whether to undergo dialysis. Two days later, he collapsed and required emergency


                                              12
dialysis. Thus, the complaint shows on its face that plaintiff knew or was on notice of
facts showing he had suffered an injury due to Dr. Paraguya’s wrongdoing in May 2007.
He did not file this action until June 29, 2011, more than four years later. Plaintiff
contends, however, that he did not become aware of the fraud until August 2008, when he
reviewed his medical records and learned that the nephrologist had not consulted with
Dr. Paraguya. Even assuming the statute of limitations began to run only after he
discovered the alleged misstatements in his records in 2008, the one-year limitations
period would have expired in 2009, well before plaintiff brought this action.
   C. Conspiracy
       In an effort to avoid this conclusion, plaintiff contends that defendants engaged in
a conspiracy to conceal the fraud and that the last overt act of the conspiracy did not take
place until 2010, when he received a copy of the allegedly fabricated letter prepared by
Dr. Pont on behalf of the grievance committee. The conspiracy, he alleges, was to
commit fraud in order to hide the fact that Dr. Iliya did not perform an emergency
screening exam in violation of EMTALA, which prohibits “patient dumping.”
       We reject this contention. Plaintiff acknowledges in his fifth amended complaint
that he is not asserting a cause of action for violation of EMTALA, although the trial
court had earlier given him the opportunity to attempt to do so. This is presumably
because any such action would be barred by the statute of limitations, under which an
action for damages for violation of EMTALA must be brought within two years of the
violation. (42 U.S.C. § 1395dd(d)(2)(C).) However, to the extent the alleged conspiracy
was designed to conceal an EMTALA violation, plaintiff’s claim seems to be nothing
more than a backdoor way of reviving an expired cause of action. We fail to see how an
action for concealing an EMTALA violation may go forward after the statutory time for
seeking recovery for the same violation has already passed.
       In any case, we would reject plaintiff’s contention that his conspiracy allegations
save his cause of action for fraud. “ ‘Conspiracy is not a cause of action, but a legal
doctrine that imposes liability on persons who, although not actually committing a tort
themselves, share with the immediate tortfeasors a common plan or design in its


                                             13
perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator
effectively adopts as his or her own the torts of other coconspirators within the ambit of
the conspiracy. [Citation.] In this way, a coconspirator incurs tort liability co-equal with
the immediate tortfeasors.’ ” (Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1141, fn.
omitted.) Thus, “ ‘[a] civil conspiracy however atrocious, does not per se give rise to a
cause of action unless a civil wrong has been committed resulting in damage.
[Citations.]’ [Citation.] ‘The elements of an action for civil conspiracy are the formation
and operation of the conspiracy and damage resulting to plaintiff from an act or acts done
in furtherance of the common design.’ ” (Doctors’ Co. v. Superior Court (1989)
49 Cal.3d 39, 44.)
       It is true, as plaintiff points out, that where a conspiracy exists, the statute of
limitations does not begin to run until the “last overt act” pursuant to the conspiracy has
been completed. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 786 [last overt act
was collection of final payment on fraudulent loan].) However, it is also true that one
cannot conspire after the fact to commit a completed tort. (Kidron v. Movie Acquisition
Corp. (1995) 40 Cal.App.4th 1571, 1592–1596.)
       Here, the tort plaintiff alleges defendants committed was fraud, the elements of
which are misrepresentation, knowledge of falsity, intent to induce reliance, justifiable
reliance, and resulting damage. (Civ. Code, § 1709; City of Atascadero v. Merrill Lynch,
Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 481.) Reading the fifth
amended complaint in the most favorable light, there is no allegation that plaintiff relied
on any misrepresentation by any of the defendants after the events of June 2007. At that
point, any cause of action for fraud was complete, and plaintiff suffered no damage
through justifiable reliance on any further false statements. (See Chicago Title Ins. Co. v.
Superior Court (1985) 174 Cal.App.3d 1142, 1151 [“Justifiable reliance is an essential
element of any cause of action for fraud and conspiracy to commit fraud”].) In the
circumstances, we conclude that defendant has not alleged overt acts in furtherance of an
actionable conspiracy that fell within the limitations period.



                                               14
       Accordingly, we agree that the trial court properly sustained defendants’
demurrers. Moreover, plaintiff has made no effort to show how he could amend his
complaint so as to cure its defects, and we therefore have no ground to conclude the trial
court abused its discretion in denying leave to amend. (See Goodman v. Kennedy, supra,
18 Cal.3d at p. 349.)4
                                   III. DISPOSITION
       The judgments are affirmed.




                                                 _________________________
                                                 Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Streeter, J.




       4
       We also reject plaintiff’s contention that by asserting a “bogus legal theory,”
defendants have committed fraud on the court.


                                            15
