Filed 5/12/14 Barnes v. Northeast Community Clinic CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


DANNY BARNES,                                                        B246382

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC469988)
         v.

NORTHEAST COMMUNITY CLINIC
et al.,

         Defendants and Respondents.



         APPEAL from an order of the Superior Court of Los Angeles County,
Barbara Marie Scheper, Judge. Affirmed.
         Danny Barnes, in pro. per., for Plaintiff and Appellant.
         Brobeck, West, Borges, Rosa & Douville, Fredrick Borges, John E. West,
Curtis C. Holmes, II and Edward J. Reid, for Defendant and Respondent Northeast
Community Clinic.
         Carroll, Kelly, Trotter, Franzen & McKenna, Michael J. Trotter, David P. Pruett,
Jo Lynn Valoff and Seth E. Workman, for Defendant and Respondent Lydia Green.
                                    ______________________________
       Danny Barnes, representing himself, appeals from the order dismissing his
medical malpractice action after the trial court sustained without leave to amend the
demurrers of Dr. Lydia Green and Northeast Community Clinic on grounds including the
action was barred by the one-year-from-date-of-discovery limitations provision of Code
                                  1
of Civil Procedure section 340.5. We affirm.
                       FACTUAL AND LEGAL BACKGROUND
       1. Barnes’s Medical Treatment; the Notice of Intent To Sue
       According to the allegations of the initial and amended complaints and attached
         2
exhibits, Barnes, born in 1961, was diagnosed with Hodgkin lymphoma in his late 20’s.
After removal of his spleen, chemotherapy and radiation, his cancer went into remission.
Barnes suffered side effects from the treatment requiring him to take anticoagulants and
have his blood tested monthly.
       In 2008 Barnes began receiving medical treatment from Dr. Green at the Northeast
Community Clinic. Although Barnes needed monthly blood tests, he was not permitted
to see Dr. Green if he arrived as little as 10 to 15 minutes late for an appointment; if late,
he often had to wait until the following month to have his blood checked.
       Beginning in late 2008 Barnes began coughing continually and having chest pains.
Dr. Green diagnosed Barnes with a cold and flu and prescribed various medications.
After his symptoms grew worse, Dr. Green changed the medications. None was
effective, and several had adverse side effects. Barnes was told he should see specialists
for a variety of conditions, including boils and lesions he believed were caused by one of
the medications, but he did not receive the necessary referral documents.
       On September 17, 2009, after Barnes had a CT scan of his chest, Dr. Green
informed him he had a history of pneumonia and the boils were a normal reaction


1      Statutory references are to the Code of Civil Procedure.
2      Barnes’s pleadings, replete with run-on sentences and sentence fragments, are
confusing and difficult to understand. We have attempted to summarize the allegations
as accurately as possible, liberally construing the pleadings in his favor.

                                              2
because Barnes had no spleen. Dr. Green prescribed medication to treat Barnes’s
pneumonia, but his condition did not improve. The medication was changed in
December 2009 and again in January 2010. Barnes would still occasionally arrive late
for appointments and be required to return the following month.
       On April 19, 2010 Barnes had an ultrasound of his right breast because a mass had
developed. The radiologist report stated, “There is a mass with irregular border at the
10:00 location of the right breast. Further studies including biopsy is [sic] recommended
to exclude the possibility of malignancy.” According to Barnes, who had suffered a
nervous breakdown in connection with his initial cancer treatment, Dr. Green told him his
cancer had reappeared, causing him shock and dismay. In May 2010 a biopsy was
performed, and the mass was found to be a necrotizing granulomatous inflammation, not
reappearance of Hodgkin lymphoma. By the time surgery was scheduled to remove the
mass a year later, it had shrunk, obviating the need for its removal.
       On June 17, 2011 Barnes faxed Northeast Community Clinic a notice of intent to
sue pursuant to section 364, which requires a notice be sent to health care providers at
                                                                        3
least 90 days before a complaint is filed alleging medical malpractice. An employee
with Northeast Community Clinic told Barnes the notice was deficient because it failed to
identify “‘who did what,’” “‘when they did it’” and “‘what happen[ed].’” On June 20,
2011 Barnes mailed Northeast Community Clinic an amended notice of intent to sue,
which it received on June 21, 2011. Although generally describing a number of
grievances, including having to wait a month to see Dr. Green if he arrived late for an
appointment, Barnes’s amended notice specifically identified as the “legal basis of this

3       Section 364 in part provides, “(a) No action based upon the health care provider’s
professional negligence may be commenced unless the defendant has been given at least
90 days’ prior notice of the intention to commence the action. [¶] (b) No particular form
of notice is required, but it shall notify the defendant of the legal basis of the claim and
the type of loss sustained, including with specificity the nature of the injuries suffered.
[¶] (c) The notice may be served in the manner prescribed in Chapter 5 (commencing
with Section 1010) of Title 14 of Part 2. [¶] (d) If the notice is served within 90 days of
the expiration of the applicable statute of limitations, the time for the commencement of
the action shall be extended 90 days from the service of the notice.”

                                             3
action” the negligent failure to properly diagnose pneumonia in his left lung and the mass
in his chest and to properly prescribe medication. At the end of the five-page letter
Barnes stated, “This notice of intent is also to be delivered to the following named
individual. [¶] Cc: Dr. Lydia Green.”
         2. The Pleadings
               a. The initial complaint
         On September 20, 2011 Barnes, in propria persona, filed a complaint for medical
malpractice, negligence and emotional distress. The complaint alleged Dr. Green had
negligently failed to properly diagnose and treat Barnes’s pneumonia resulting in scarring
in his left lung, as well as to properly diagnose the mass in his breast causing him to
suffer emotional distress; personnel at Northeast Community Clinic failed to allow
Barnes to see Dr. Green and test his blood when he arrived late; and defendants failed to
send him referrals to specialists he was told he needed to see. The complaint alleged he
“continually complained” to Northeast Community Clinic and Dr. Green about the
substandard medical care he was receiving during late 2009 and 2010. It further alleged
he had “put defendants on notice in an attempt to resolve the matter on or about June 20,
2011.”
               b. The first amended complaint
         After the trial court sustained with leave to amend Dr. Green’s and Northeast
Community Clinic’s demurrers on the ground the facts alleged were vague and
unintelligible, Barnes filed a first amended complaint asserting causes of action for
negligence and emotional distress. Although more detailed than the initial complaint and
attaching a number of additional exhibits, the gravamen of the first amended complaint
was essentially unchanged. With respect to Barnes’s discovery of the basis for his
claims, the first amended complaint alleged, “On or about June 21, 2010 CT studies
showed that plaintiff BARNES, was diagnosed with (Palpable mass on his right chest
breast area) in which defendant GREEN MD told plaintiff that his cancer had returned
and that such mass had to be remove[d] by surgical operation.” Notwithstanding the CT
studies were dated June 21, 2010, the first amended complaint further alleged, “On or

                                              4
about June 20, 2010 [Barnes] discovered and hereon believe that Defendants NECC and
each of them including Defendant GREEN through there [sic] negligence’s act and
omission had committed Professional negligence and/or medical malpractices against
[Barnes].” Regarding notification of Dr. Green and Northeast Community Clinic of his
intent to sue, the first amended complaint alleged, “On or about Monday June 20, 2010
[Barnes] received informal phone correspondence from ‘Wendy’ from defendants
corporate office that defendants [Northeast Community Clinic] did receive fax of
[Barnes’s] Notice of Intent brings Civil Action sent out in the mail on June 20/2010, but
that could NOT affirm that it was official formal Notice until there receive the actual
NOTICE from the mail and that soon as defendant [Northeast Community Clinic]
received such Notice they would Notify [Barnes]. [Barnes did] not receive letter of
                                    4
acknowledgment from defendants.”
       Northeast Community Clinic and Dr. Green each demurred to the first amended
complaint, contending the cause of action for negligence was untimely pursuant to
section 340.5, which requires an action for professional negligence against a health care
provider be commenced at the earlier of three years after the date of injury or one year
after the plaintiff discovers or should have discovered the injury. They argued Barnes
alleged he discovered Dr. Green and Northeast Community Clinic had committed
malpractice on June 20, 2010 and thus was required to bring his cause of action for
                             5
negligence by June 20, 2011. Although timely service of a notice of intent to sue tolls
the statute of limitations 90 days pursuant to section 364, subdivision (d), Dr. Green and
Northeast Community Clinic argued Barnes’s notice of intent to sue was not filed timely.




4      Although Barnes alleges he spoke to Wendy on June 20, 2010 and the notice was
sent on that date, it is clear from the record the year was 2011.
5      They also argued other allegations in the complaint—for example, that on June 15,
2009 Barnes had complained to Northeast Community Clinic about substandard medical
care—demonstrated he had discovered any injury arising from failure to refer him to a
specialist or other alleged negligence well before June 20, 2010.

                                             5
Northeast Community Clinic and Dr. Green also demurred on the ground the complaint
was still ambiguous and unintelligible.
       The trial court sustained the demurrers with leave to amend. The record on appeal
does not disclose the basis for the court’s ruling: The minute order does not contain an
explanation, and Barnes has not provided reporter’s transcripts from any hearings.
              c. The second amended complaint
       On August 29, 2012 Barnes filed the operative second amended complaint
asserting causes of action for (1) “medical/professional negligence,” (2) fraudulent
concealment/failure to provide medical records, (3) intentional infliction of emotional
distress, and (4) “negligence/intentional infliction of emotional distress” and also adding
                                                                                    6
Dr. Philip Kouros, who began treating Barnes in February 2011, as a defendant. With
respect to the new claims regarding his medical records, Barnes alleged he had requested
copies of them on April 15, 2011, but the records he received were incomplete. The
pleading further alleged defendants’ fraudulent concealment of Barnes’s medical records
prevented him from pursuing his legal remedies at an earlier date.
       As to the discovery of defendants’ negligence, although his previous pleadings had
alleged Barnes first discovered the malpractice on June 20, 2010, the second amended
complaint alleged he did not discover it until June 21, 2010. Regarding the notice of
intent to sue, the second amended complaint alleged Barnes first sent a notice on June 17,
2011. That day, however, Wendy with Northeast Community Clinic informed him the
notice was insufficient because it was vague. Barnes alleged, “‘[B]oth parties mutually
agreed’ that June 17/2011: Notice of Intent would be accepted as a courtesy copy /and
extension of time to commence action until the time [Barnes] amended the ‘Notice of
Intent’ and that such amendment to add who, What, When, Where, and Doctors names
. . . that such amendment was to be sent register mail with return as actual notice. . . .
[Barnes] received return receipt on or about June 21/2011.”


6        On September 7, 2012 Barnes filed a form amendment to the complaint
(fictitious/incorrect name) naming Dr. Kouros.

                                               6
       Northeast Community Clinic and Dr. Green again demurred. Northeast
Community Clinic also moved to strike the cause of action for fraudulent
concealment/failure to provide medical records. On November 2, 2012 the court
sustained the demurrers without leave to amend and struck the fraudulent concealment
cause of action and causes of action against Dr. Kouros. The court found the second
amended complaint “continues to be unintelligible in many respects” and Barnes had
added the fraudulent concealment claim and Dr. Kouros as a defendant without obtaining
the court’s permission. The court further found the causes of action for professional
negligence were time-barred and the claims for intentional and negligent infliction for
emotional distress “cannot stand” because they were based entirely on the alleged
professional negligence.
                                      DISCUSSION
       1. Standard of Review
       A demurrer tests the legal sufficiency of the factual allegations in a complaint.
We independently review the superior court’s ruling on a demurrer and determine de
novo whether the complaint alleges facts sufficient to state a cause of action or discloses
a complete defense. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415;
Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We assume the truth of the
properly pleaded factual allegations, facts that reasonably can be inferred from those
expressly pleaded and matters of which judicial notice has been taken. (Evans v. City of
Berkeley (2006) 38 Cal.4th 1, 20; Schifando v. City of Los Angeles (2003) 31 Cal.4th
1074, 1081.) We liberally construe the pleading with a view to substantial justice
between the parties. (§ 452; Schifando, at p. 1081.)
       Although a general demurrer does not ordinarily reach affirmative defenses, it
“will lie where the complaint ‘has included allegations that clearly disclose some defense
or bar to recovery.’” (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183;
accord, Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 224.)
“Thus, a demurrer based on an affirmative defense will be sustained only where the face
of the complaint discloses that the action is necessarily barred by the defense.”

                                             7
(Casterson, at p. 183; accord, Favila, at p. 224; see Coalition for Clean Air v. City of
Visalia (2012) 209 Cal.App.4th 408, 420 [“for a demurrer based on the statute of
limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively
appear on the face of the complaint and matters judicially noticed”].)
       2. Barnes’s Professional Negligence Claim Is Time-barred
              a. Governing law
       Section 340.5, part of the Medical Injury Compensation Reform Act of 1975
(MICRA), provides, in 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.” “It is well established that, ‘“[t]he term ‘injury,’ as used
in section 340.5, means both a person’s physical condition and its negligent cause.”’
[Citation.] However, a person need not know of the actual negligent cause of an injury;
mere suspicion of negligence suffices to trigger the limitation period.” (Knowles v.
Superior Court (2004) 118 Cal.App.4th 1290, 1295.)
       A potential medical malpractice plaintiff must notify health care providers of his
or her intent to sue at least 90 days before filing a complaint. (§ 364, subd. (a);
Castenada v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051,
1068.) The purpose of section 364, also enacted as part of MICRA, “is to decrease the
number of medical malpractice actions filed by establishing a procedure that encourages
the parties to negotiate ‘outside the structure and atmosphere of the formal litigation
process.’” (Woods v. Young (1991) 53 Cal.3d 315, 320 (Woods).) Section 364,
subdivision (d), provides, “If the notice is served within 90 days of the expiration of the
applicable statute of limitations, the time for the commencement of the action shall be
extended 90 days from the service of the notice.” Notwithstanding section 364,
subdivision (d), states the time for filing shall be “extended,” the Woods Court held the
legislative purpose of section 364, subdivision (d), is “best effectuated by construing
section 364(d) as tolling the one-year statute of limitations when section 364(a)’s ninety-

                                              8
day notice of intent to sue is served during, but not before, the last ninety days of the one-
year limitations period. Because the statute of limitations is tolled for 90 days and not
merely extended by 90 days from the date of service of the notice, this construction
results in period of 1 year and 90 days in which to file the lawsuit.” (Woods, at p. 325.)
              b. Barnes filed the initial complaint one day late
       Liberally construing the second amended complaint, the negligence Barnes alleged
falls into three general categories: (1) misdiagnosing pneumonia in his left lung as a cold
and flu until September 17, 2009 and failing to properly treat it; (2) failing to properly
monitor his blood levels, including refusing to allow him to see Dr. Green if he arrived
late for an appointment beginning in 2008; and (3) misdiagnosing the mass in his breast
as cancer, which he discovered on either June 20 or June 21, 2010. Notwithstanding the
second amended complaint alleged Barnes had knowledge of the first two categories of
purported negligence at least one year before June 2010, even giving Barnes the benefit
of the doubt that June 21, 2010 was the date of discovery of all the categories of
professional negligence, the last day on which Barnes could have timely filed a complaint
asserting those claims absent any tolling of the limitations period was June 21, 2011.
       Barnes, however, timely filed a notice of intent to sue within 90 days of the one-
                        7
year limitations period. Thus, Barnes had a period of one year and 90 days from
June 21, 2010 in which to file his lawsuit—that is, until September 19, 2011. (See
Woods, supra, 53 Cal.3d at p. 325.) Barnes filed his lawsuit on September 20, 2011,
missing the deadline by one day. Although it may seem harsh to bar his lawsuit because
of a one-day miscalculation, as Barnes complains, strict enforcement of the statute of
limitations is “‘the “price of the orderly and timely processing of litigation”’ [citation]—a
price that may be high, but one that must nevertheless be paid.’” (Stockton Citizens for
Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 499; see Hanooka v. Pivko
(1994) 22 Cal.App.4th 1553, 1561 (Hanooka) [“[s]tatutes of limitations are generally

7      The analysis is the same whether we consider the June 17, 2010 or the June 20,
2010 notice of intent to sue the operative notice. (See Woods, supra, 53 Cal.3d at
p. 325.)

                                              9
regarded as inflexible, and are ‘“‘upheld and enforced regardless of personal
hardship’”’”].)
       Barnes attempts to salvage his lawsuit by insisting he and “Wendy” at Northeast
Community Clinic agreed the 90-day tolling period would not begin until June 21, 2011
when Northeast Community Clinic received the amended notice of intent to sue by
certified mail and arguing the time he had to serve his complaint should be extended by
five days, as specified in section 1013, subdivision (a), pursuant to section 364,
subdivision (c), which provides the notice of intent to sue may be served in accordance
with section 1010 et seq. generally governing notice and service.
       Barnes’s arguments are without merit. First, section 1013, subdivision (a),
addressing service by mail, states, “[s]ervice is complete at the time of the deposit,” not
receipt, and section 364, subdivision (d), states the limitations period shall be extended
from the “service of the notice.” (See Silver v. McNamee (1999) 69 Cal.App.4th 269,
276 [notice of intent to sue “effective immediately upon deposit in the mail”].) Although
section 1013, subdivision (a), extends by five days the time within which a party served
by mail must respond or “any right or duty to do any act” (§ 1013, subd. (a)), “[i]t is
reasonably well settled that section 1013 does not extend the statutes of limitations.”
(Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 576, 578; accord, Silver, at p. 282,
fn. 16].) Second, any purported agreement with Wendy to extend the statute of
limitations to June 21, 2011 or to begin the 90-day tolling period on that date, even if
authorized, would be of no consequence. Assuming as we have Barnes did not discover
the medical malpractice until June 21, 2010, the last day of the limitations period would
                                                                                      8
be June 21, 2011 in any event, and 90 days from that date was September 19, 2011. The
lawsuit was one day late.


8       Northeast Community argues Barnes’s complaint would have been untimely even
if the notice of intent were deemed served on June 21, 2011. Dicta in Woods, supra,
53 Cal.3d at page 326, footnote 3 suggests this is incorrect: “A plaintiff who serves the
notice of intent to sue on the last day of the limitations period has one day after the
ninety-day waiting period to file the complaint.”

                                             10
       Barnes also argues Northeast Community Clinic and Dr. Green should be estopped
from raising the statute of limitations because they intentionally concealed his medical
        9
records. “‘“Equitable estoppel . . . comes into play only after the limitations period has
run and addresses . . . the circumstances in which a party will be estopped from asserting
the statute of limitations as a defense to an admittedly untimely action because his
conduct has induced another into forbearing suit within the applicable limitations period.
[Equitable estoppel] is wholly independent of the limitations period itself and takes its
life . . . from the equitable principle that no man [may] profit from his own wrongdoing in
a court of justice.”’” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383.)
       Barnes has not alleged facts supporting equitable estoppel. The gist of Barnes’s
allegations is that the limitations period should be tolled because the intentional
concealment of his medical records prevented him from discovering his injuries at an
earlier date, not that he was induced into forbearing suit. (See Lantzy v. Centex Homes,
supra, 31 Cal.4th at p. 383 [“‘“[t]olling, strictly speaking, is concerned with the point at
which the limitations period begins to run and with the circumstances in which the
running of the limitations period may be suspended”’”].) Tolling based on intentional
concealment, however, only applies to the three-year limitations period in section 340.5,
not the one-year discovery provision. (See Belton v. Bowers Ambulance Service (1999)
20 Cal.4th 928, 934 [“We see no reason to apply the second sentence of section 340.5 to
the one-year period it does not mention, in addition to the three-year period it does
mention. The general purpose of MICRA does not require us to expand that sentence
beyond its language.”]; Hanooka, supra, 22 Cal.App.4th at p. 1563 [“section 340.5
prohibits tolling beyond the three-year period except in particular circumstances, and no
tolling is provided at all for the one-year period following discovery”].) The second
amended complaint clearly alleges facts demonstrating the one-year discovery provision
is applicable: Barnes learned he had pneumonia, not a cold or flu, in September 2009 and


9      Barnes does not challenge the trial court’s ruling striking his cause of action for
fraudulent concealment/failure to provide his medical records.

                                             11
necrotizing granulomatous inflammation, not cancer, no later than June 21, 2010.
Additionally, long before June 2010 Barnes had been complaining about the failure to
promptly reschedule appointments to which he arrived late and failure to receive
specialist referrals. All of Barnes’s alleged injuries and damages flow from those
predicates.
               c. Barnes is not entitled to relief from mistake under section 473
       Barnes argues for the first time on appeal, if he erred in filing his complaint one
day late, he is entitled to relief from his mistake pursuant to section 473. Under section
473, subdivision (b), a trial court has discretion to relieve a party from the dismissal of
his or her lawsuit or the entry of default caused by the party’s own mistake, inadvertence,
surprise or excusable neglect. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981;
cf. Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1100 [mandatory relief
provision of § 473, subd. (b), applies only to an attorney representing a party; purpose of
the mandatory relief provision is to relieve the innocent client of the burden of the
attorney’s fault].)
       Barnes’s argument is without merit even if not forfeited for failure to raise it in the
trial court. (See Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d
412, 417 [issues not raised in trial court cannot be raised for the first time on appeal];
accord, Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1314.) Section 473 does not
provide “a loophole through which a plaintiff may escape the bar of the statute of
limitations.” (Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th
927, 933.) “Notwithstanding the broad construction afforded section 473,
subdivision (b), the statute does not offer relief from mandatory deadlines deemed
jurisdictional in nature. [Citations.] Thus section 473, subdivision (b) cannot extend the
time in which a party must move for a new trial, since this time limit is considered
jurisdictional. [Citations.] Nor does section 473, subdivision (b) generally apply to
dismissals attributable to a party’s failure to comply with the applicable limitations period
in which to institute an action, whether by complaint [citations] or by writ petition



                                              12
[citation].” (Maynard v. Brandon (2005) 36 Cal.4th 364, 373; accord, Jackson v. Doe
(2011) 192 Cal.App.4th 742, 755.)
       Although some limitations statutes expressly provide “for an extension of the
limitation period on a showing of good cause, which has been interpreted as equivalent to
a showing under section 473” (Hanooka, supra, 22 Cal.App.4th at p. 1561), the one-year
discovery limitation in section 340.5 does not provide for relief either generally on
grounds of excusable neglect or specifically under section 473, subdivision (b).
(Hanooka, at p. 1562.) Thus, a plaintiff “cannot extend the medical malpractice statute of
limitations, section 340.5, by applying section 473 to the notice provision of
section 364.” (Id. at p. 1563.)
       3. Barnes Failed To Allege Facts Sufficient To State a Cause of Action for
          Intentional Infliction of Emotional Distress
       “‘The elements of a prima facie case of intentional infliction of emotional distress
consist of: (1) extreme and outrageous conduct by the defendant with the intent to cause,
or reckless disregard for the probability of causing, emotional distress; (2) suffering of
severe or extreme emotional distress by the plaintiff; and (3) the plaintiff’s emotional
distress is actually and proximately the result of defendant’s outrageous conduct.’”
(Chang v. Lederman (2009) 172 Cal.App.4th 67, 86.) “‘“[I]t is for the court to
determine, in the first instance, whether the defendant’s conduct my reasonably be
regarded as so extreme and outrageous as to permit recovery.”’” (Fowler v. Varian
Associates, Inc. (1987) 196 Cal.App.3d 34, 44.)
       As the trial court found, Barnes’s claim for intentional infliction of emotional
distress is predicated entirely on his allegations that Northeast Community Clinic’s and
                                                         10
Dr. Green’s treatment fell below the standard of care.        There are no substantive


10      In addition to intentional infliction of emotional distress, Barnes asserted a cause
of action for “negligence/intentional infliction of emotional distress.” To the extent
Barnes was attempting to assert a claim for negligent infliction of emotional distress, it is
superfluous. “California does not recognize an independent tort for the negligent
infliction of emotional distress. Instead, recovery of emotional distress damages is
premised on defendant’s negligence (i.e., breach of a duty) that proximately causes

                                             13
allegations of intentional misconduct, let alone extreme and outrageous intentional
misconduct. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210 [intentional
infliction of emotional distress “calls for intentional, or at least reckless conduct—
conduct intended to inflict injury or engaged in with the realization that injury will
result”; officers’ failure to timely act to prevent an assault by an assailant under
surveillance, absent intent to injure “is not the kind of ‘extreme and outrageous conduct’
that gives rise to liability under the ‘intentional infliction of emotional distress tort”].)
Simply including the words “deceit” and “willful conduct” as part of boilerplate
allegations is not enough. (See Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [in
medical malpractice action “second count’s conclusory characterization of defendant’s
conduct as intentional, willful and fraudulent is a patently insufficient statement of
‘oppression, fraud, or malice, express or implied’” required for recovery of punitive
damages]; Allen v. Jones (1980) 104 Cal.App.3d 207, 215 [plaintiff’s allegations of
deceit and outrageous conduct “too vague and conclusory; it is evident that the true and
sole basis of plaintiff's action is negligent breach of an agreement”].) Based on the facts
Barnes has alleged in three pleadings, he cannot state a cause of action for intentional
infliction of emotional distress.
                                        DISPOSITION
       The order of dismissal is affirmed. Dr. Green and Northeast Community Clinic
are to recover their costs on appeal.


                                                                   PERLUSS, P. J.

       We concur:
                              WOODS, J.                            SEGAL, J.*


emotional distress.” (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1520; accord,
Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984 [“there is no
independent tort of negligent infliction of emotional distress”].)
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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