Filed 1/15/15 Sam v. Garfield Beach CVS CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



JOSEPH SAM,

         Plaintiff and Appellant,                                        E057531

v.                                                                       (Super.Ct.No. RIC1109016)

GARFIELD BEACH CVS, LLC,                                                 OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Paulette Durand-Barkley,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

         Gomez Law Group, Alvin M. Gomez and Peter B. Nichols for Plaintiff and

Appellant.

         Edwards Wildman Palmer LLP, Jon-Paul Lapointe and Jennifer Chia-Wen Hsu for

Defendant and Respondent.

                                                             I

                                                 INTRODUCTION

         This case arises from defendant Garfield Beach CVS, LLC (CVS) incorrectly
                                                             1
filling plaintiff Joseph Sam’s prescription, resulting in plaintiff overdosing on Doxepin

(sleeping pills). Sam appeals from judgment entered after the trial court granted CVS’s

motion for summary judgment on the ground plaintiff’s professional negligence

(malpractice) and fraud claims were barred by the one-year statute of limitations.

Plaintiff contends there were material triable issues of fact as to whether his claims were

barred by the statute of limitations. Plaintiff also argues his fraud claim is a proper

theory of recovery, separate and distinct from his malpractice claim. We conclude it is

undisputed plaintiff’s malpractice and fraud claims are barred by the one-year statute of

limitations under Code of Civil Procedure section 340.5.1 Even if plaintiff’s fraud claim

is not barred, plaintiff is unable to prevail on his fraud claim as a matter of law.

Summary judgment is therefore affirmed.

                                              II

                     FACTS AND PROCEDURAL BACKGROUND

       In 2009, Dr. Schwartz began prescribing Doxepin 10 mg for plaintiff’s insomnia.

On March 11, 2010, plaintiff picked up his refilled prescription for Doxepin 10 mg at

CVS. CVS mistakenly filled the prescription with Doxepin 100 mg, instead of Doxepin

10 mg, as prescribed. Plaintiff did not recall anyone at CVS saying anything regarding

filling his prescription. He merely went to CVS, as he had many times before and picked

up his prescription. After plaintiff arrived home from CVS on March 11, 2010, he took

two to three of the Doxepin pills, as prescribed. Before taking the pills that evening,

       1Unless otherwise noted, all statutory references are to the Code of Civil
Procedure.

                                               2
plaintiff noticed the pills were larger and a different color than the Doxepin pills he had

previously taken. The pills also were in a larger bottle.

       Plaintiff testified at his deposition that the next thing he remembered after taking

the pills, was waking up in the hospital that same evening. Plaintiff was discharged from

the hospital either late in the evening on March 11, 2010, or early in the morning on

March 12, 2010. It took about one week for the immediate effects of the Doxepin

overdose to wear off. On the way home from the hospital, plaintiff told his friend, Robert

Turner, who drove him home, that he had been hospitalized because of the medication he

took. When asked during his deposition why he thought the medication caused his

hospitalization, plaintiff said, “Because that could be the only reason.”

       When plaintiff returned home from the hospital, he looked at the Doxepin bottle

and noticed the milligram dosage was different than previous refills. The dosage stated

on the bottle was 100 mg. Plaintiff thought this might have caused him to be in the

hospital. Plaintiff called Dr. Schwartz on March 12, 2010, and on March 15, 2010, saw

him for a follow-up appointment, as instructed by the hospital. Plaintiff told Dr.

Schwartz CVS gave him 100 mg pills and showed him the pills. Dr. Schwartz told

plaintiff he did not write a prescription for 100 mg pills and that he would never write a

prescription for that high a dosage. Dr. Schwartz said he wrote the prescription for 10 mg

pills and told plaintiff not to go back to CVS. When Dr. Schwartz told plaintiff this,

plaintiff suspected CVS had made a mistake refilling his Doxepin prescription. Plaintiff

was not certain, however, because he thought CVS may have given him generic pills and



                                              3
did not know what generic meant. He thought it meant a higher dosage would be given if

a drug was generic because the generic drug was not as strong.

       Plaintiff’s relatives told him that others suspected he may have purposely

overdosed. Plaintiff was concerned this would impact his job as a police officer. He also

thought he might be found at fault for not noticing before taking the pills that CVS had

given him the incorrect dosage. Plaintiff stated in his declaration supporting opposition

to CVS’s summary judgment motion that plaintiff was concerned he might be accused of

overdosing. He had been told people at work suspected he had intentionally overdosed.

       Plaintiff stated in his declaration that he initially contacted attorney Alvin Gomez

because plaintiff was not sure what had happened when he overdosed or how his

employment as a police officer might be affected. Plaintiff wanted to know what his

rights were. He did not seek legal advice regarding CVS until April 2010, when he spoke

to Gomez concerning whether he had a case against CVS. Plaintiff also signed

authorizations allowing release of his medical records to Gomez. Gomez told plaintiff he

could not file a lawsuit for malpractice until plaintiff obtained an admission from CVS or

a declaration by an expert medical witness stating malpractice had occurred. CVS did

not admit to plaintiff that it had erred until it sent a letter dated May 5, 2010, which

plaintiff received on May 7, 2010. Prior to May 5, 2010, CVS employees left multiple

phone messages requesting plaintiff to call CVS. CVS did not mention that it had

misfilled his prescription, and plaintiff did not return CVS’s calls.

       After CVS admitted in its letter that it had erred, plaintiff retained Gomez on May

13, 2010, and filed the instant lawsuit on May 5, 2011. Plaintiff’s amended complaint

                                              4
(complaint) filed in September 2011, includes causes of action for medical malpractice

and fraud, based on CVS negligently misfilling plaintiff’s prescription and representing

that it was correctly filled as prescribed. CVS filed a motion for summary judgment,

asserting that plaintiff’s complaint was barred by the statute of limitations and that

plaintiff could not establish a fraud claim. Plaintiff filed opposition. On September 5,

2012, the trial court heard and granted CVS’s motion for summary judgment.

                                              III

                                 STANDARD OF REVIEW

       We review a trial court’s order granting a motion for summary judgment “de novo,

liberally construing the evidence in support of the party opposing summary judgment and

resolving doubts concerning the evidence in favor of that party.” (State of California v.

Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018 (Allstate Ins. Co.).)

       A defendant moving for summary judgment has the initial burden to make a prima

facie showing there is no merit to a cause of action and that therefore the defendant is

entitled to judgment as a matter of law. (§ 437c, subd. (p)(2); Wilson v. 21st Century Ins.

Co. (2007) 42 Cal.4th 713, 720.) To satisfy this burden, the moving defendant must

show that at least one of the elements of the cause of action has not been established by

the plaintiff and cannot reasonably be established, or must establish the elements of a

complete defense to the cause of action. (§ 437c, subds. (o), (p)(2); Allstate Ins. Co.,

supra, 45 Cal.4th at p. 1017; Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484

(Jessen).) If the moving defendant meets this burden, then the burden shifts to the

plaintiff to show that there is at least one triable issue of material fact regarding the cause

                                               5
of action or as to the complete defense. (§ 437c, subd. (p)(2); Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar); Jessen, at p. 1484.) “There is a

triable issue of material fact if, and only if, the evidence would allow a reasonable trier of

fact to find the underlying fact in favor of the party opposing the motion in accordance

with the applicable standard of proof.” (Aguilar, at p. 850.)

                                              IV

                          MALPRACTICE CAUSE OF ACTION

       Plaintiff contends the trial court erred in ruling plaintiff’s malpractice cause of

action was barred by the statute of limitations under section 340.5. Plaintiff alleges in his

first cause of action for malpractice that on March 11, 2010, CVS breached its duty of

care owed to plaintiff by negligently refilling plaintiff’s prescription by giving plaintiff

pills that were 10 times the prescribed dosage. CVS’s negligence allegedly caused

plaintiff to sustain injuries and damages. Plaintiff further alleges that he discovered

CVS’s negligence on May 7, 2010.

       Section 340.5 sets forth the statute of limitations applicable to this medical

malpractice case. (Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 610.) Section

340.5, subdivision (1), defines a health care provider as including any person licensed or

certified pursuant to Division 2 of the Business and Professions Code. Pharmacists and

pharmacies are licensed pursuant to Division 2 of the Business and Professions Code and

thus fall within this statutory definition of health care provider. (See Bus. & Prof. Code,

§§ 4000-4125.)



                                              6
       Section 340.5 states that in an action for injury or death against a health care

provider, based upon alleged professional negligence, the action shall be commenced

within three years after the date of injury, or one year after the plaintiff discovers, or

through reasonable diligence should have discovered, the injury and its negligent cause,

whichever occurs first. Section 340.5 further provides that in no event shall the

limitations period exceed three years unless tolled because of (1) proof of fraud; (2)

intentional concealment; or (3) the presence of a foreign body, without any therapeutic or

diagnostic purpose or effect, in the injured person. (Rose v. Fife (1989) 207 Cal.App.3d

760, 767-768; Jefferson v. County of Kern, supra, 98 Cal.App.4th at p. 610, fn. 15.)

       The one-year limitation period applies in the instant case. Plaintiff argues the one-

year limitation period did not begin running until May 7, 2010, when he received the

letter from CVS advising him that CVS had erred in refilling plaintiff’s Doxepin

prescription. Plaintiff asserts this was when he first became aware his overdose was

caused by CVS. Up until then, plaintiff was concerned he did something wrong and

thought the discrepancy in the dosage might have been because the pills were generic.

Plaintiff was unaware of the reason for CVS employees calling him. Plaintiff argues

these facts raise a triable issue as to whether the one-year statute of limitations began

running before May 7, 2010. We disagree.

       Notice triggering the statute of limitations “may be actual or constructive. (Civ.

Code, § 18.) Actual notice is ‘express information of a fact,’ while constructive notice is

that ‘which is imputed by law.’ (Ibid.) A person with ‘actual notice of circumstances

sufficient to put a prudent man upon inquiry’ is deemed to have constructive notice of all

                                               7
facts that a reasonable inquiry would disclose. (Civ. Code, § 19; [citations].)” (E-Fab,

Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1318-1319 (E-Fab).)

       Even though normally the accrual of the statute of limitations is a question of fact

(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810 (Fox)), when reasonable

minds can draw only one conclusion from undisputed facts, accrual may be determined as

a matter of law. (Ibid.) “More specifically, as to accrual, ‘once properly pleaded, belated

discovery is a question of fact.’ [Citation.] As our state’s high court has observed:

‘There are no hard and fast rules for determining what facts or circumstances will compel

inquiry by the injured party and render him chargeable with knowledge. [Citation.] It is

a question for the trier of fact.’ [Citation.] ‘However, whenever reasonable minds can

draw only one conclusion from the evidence, the question becomes one of law.’ (Snow v.

A. H. Robins Co. (1985) 165 Cal.App.3d 120, 128 [reversing summary judgment].)” (E-

Fab, supra, 153 Cal.App.4th at p. 1320.) Thus, when an appeal is taken from a judgment

of dismissal following the sustention of a demurrer or summary judgment, “‘the issue is

whether the trial court could determine as a matter of law that failure to discover was due

to failure to investigate or to act without diligence.’” (E-Fab, at p. 1320, quoting Bastian

v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 527.)

       When applying the discovery rule to the statute of limitations, we must therefore

determine “when and how the plaintiff discovered an injury, whether the plaintiff

conducted a reasonable investigation, when such an investigation would have brought to

light the factual basis for the cause of action for which the plaintiff sought delayed



                                              8
accrual, and whether the plaintiff could have discovered the factual basis for a cause of

action earlier by exercising reasonable diligence.” (Fox, supra, 35 Cal.4th at p. 810.)

       As the California Supreme Court explained in Fox, supra, 35 Cal.4th at pages 807-

808, “The discovery rule only delays accrual until the plaintiff has, or should have,

inquiry notice of the cause of action. The discovery rule does not encourage dilatory

tactics because plaintiffs are charged with presumptive knowledge of an injury[] if they

have ‘“‘information of circumstances to put [them] on inquiry’”’ or if they have ‘“‘the

opportunity to obtain knowledge from sources open to [their] investigation.’”’

[Citations.] In other words, plaintiffs are required to conduct a reasonable investigation

after becoming aware of an injury, and are charged with knowledge of the information

that would have been revealed by such an investigation.”

       Undisputed evidence in the instant case established that, prior to May 7, 2010,

plaintiff had actual or constructive notice his overdose was caused by taking Doxepin 100

mg pills and that CVS was negligent in causing his injury by misfilling his prescription

with 100 mg Doxepin pills, instead of the prescribed 10 mg pills. Plaintiff testified that,

after picking up his refilled prescription on March 11, 2010, plaintiff took two to three

pills that night, as prescribed. Plaintiff was hospitalized of an overdose and, on his way

home from the hospital, told his friend that his hospitalization “was probably because of

my medication I took.” Plaintiff said he thought this “[b]ecause that could be the only

reason.”

       Plaintiff testified he tried to “figure out what happened.” When Plaintiff got home

early in the morning, he checked the Doxepin bottle and realized “the milligrams were

                                             9
different.” Plaintiff noticed the dosage written on the bottle was 100 mg, which was

different from what he was prescribed. When plaintiff noticed this, he thought, “this

might have caused me to be in the hospital.” On March 12, 2010, after plaintiff got

home, he called Dr. Schwartz, and when he saw Dr. Schwartz on March 15, 2010,

plaintiff told him CVS had given plaintiff Doxepin 100 mg. Dr. Schwartz told plaintiff

“he didn’t write the prescription for that and for me not to go back to CVS.” Dr.

Schwartz told plaintiff he wrote the prescription for 10 mg and that he would never write

the prescription that high. During plaintiff’s deposition, plaintiff was asked if he knew,

when Dr. Schwartz told him he did not write the Doxepin prescription for 100 mg, that

CVS made a mistake in refilling his Doxepin prescription. Plaintiff replied that he did

not know this but he “had suspicions.”

       Plaintiff’s deposition testimony and declaration establish that he was aware he

overdosed from taking Doxepin, that CVS was responsible for refilling his prescription,

and that he received Doxepin 100 mg, rather than Doxepin 10 mg prescribed by his

doctor. Plaintiff also testified he suspected CVS had erred in filling his prescription and

immediately checked the Doxepin bottle when he returned from the hospital. He noticed

that the bottle was for 100 mg, not Doxepin 10 mg. Plaintiff also noticed the pills and

bottle were larger than the previous Doxepin pills and bottle received from CVS.

Plaintiff informed Dr. Schwartz of these facts and Dr. Schwartz told plaintiff the Doxepin

100 mg pills CVS gave him were not what Dr. Schwartz had prescribed. Dr. Schwartz

also told plaintiff not to go back to CVS for his prescriptions. These facts were more

than sufficient to trigger the running of the one-year statute of limitations before May 7,

                                             10
2010, as a matter of law. It is undisputed that shortly after plaintiff returned home from

the hospital, and at the latest after he visited his doctor on May 15, 2010, plaintiff

suspected or should have suspected CVS had committed wrongdoing by misfilling his

prescription, causing his overdose. (Fox, supra, 35 Cal.4th at p. 807.)

       In addition, there is evidence plaintiff began investigating the cause of his

overdose as soon as he returned home from the hospital. Immediately upon returning

home, he checked the Doxepin bottle and noticed he was given 100 mg of Doxepin,

instead of the usual 10 mg. Also, plaintiff visited his doctor and told him CVS had given

him Doxepin 100 mg, instead of Doxepin 10 mg. In addition, in April 2010, plaintiff

visited an attorney for the purpose of determining whether he had a valid claim against

CVS. Plaintiff stated in his declaration and in deposition testimony that in April 2010, he

discussed with attorney Alvin Gomez CVS’s liability and whether plaintiff had a case

against CVS.

       Despite these facts, plaintiff argues he raised triable issues of fact by presenting

evidence he was unaware CVS had erred in filling his prescription until he received

CVS’s May 7, 2010 letter. Such evidence includes his deposition testimony and

declaration in which plaintiff stated he thought his medication may have been generic and

therefore required a greater dosage than what he normally received. He was also

concerned about his employer finding out about the overdose incident and suspecting he

was suicidal. But even if plaintiff wanted to avoid disclosing the incident to his employer

and was uncertain as to CVS’s wrongdoing, plaintiff was on sufficient inquiry notice to

trigger the statute of limitations.

                                              11
       Plaintiff was charged with presumptive knowledge of an injury prior to May 7,

2010, because he, not only had information of circumstances putting him on inquiry, but

also had the opportunity to obtain knowledge from sources open to his investigation.

(Fox, supra, 35 Cal.4th at pp. 807-808.) Under such circumstances, plaintiff was charged

with knowledge of the information that would have been revealed by conducting a

reasonable investigation. (Ibid.; Unruh-Haxton v. Regents of University of California

(2008) 162 Cal.App.4th 343, 360-361.) It is highly likely, that had plaintiff called CVS

and inquired regarding his prescription or returned CVS’s multiple calls prior to May 7,

2010, plaintiff would have confirmed that CVS had misfilled his prescription and the

error caused his overdose, hospitalization, and injuries.

       Furthermore, had plaintiff inquired regarding generic medication, he would have

discovered that, even if his medication was a generic brand, the dosage should not have

been higher than what his doctor had prescribed. Plaintiff easily could have asked his

doctor about generic medication when plaintiff called Dr. Schwartz on March 12, 2010,

and visited him on March 15, 2010. Plaintiff is therefore charged with knowing that,

regardless of whether his medication was filled with a generic brand, CVS misfilled his

prescription, which caused his overdose.

       Even though plaintiff’s attorney may have told plaintiff he could not file a case

against CVS for medical malpractice without an admission of fault by CVS or a

declaration by an expert medical witness stating that CVS had committed malpractice,

the statute of limitations had already begun running because plaintiff was on notice of his

injury and its negligent cause. Plaintiff therefore had a duty to investigate, and did so.

                                             12
Plaintiff stated in his deposition and declaration that he “consulted an attorney precisely

because [he] wished to explore [his] legal remedies.” (Guitierrez v. Mofid (1985) 39

Cal.3d 892, 897.) The limitation period was not delayed, suspended, or tolled merely

because plaintiff’s attorney told him he did not have sufficient evidence to file a claim.

(Id. at p. 898.)

       Even when liberally construing plaintiff’s opposition to summary judgment, we

conclude plaintiff has not raised a triable issue as to the statute of limitations. As a matter

of law, based on the unrefuted evidence, plaintiff was on inquiry notice and thus the

statute of limitations began running at the earliest on March 12, 2010, and at the latest by

April 20, 2010. As a consequence the one-year statute of limitations expired before

plaintiff filed his complaint for malpractice on May 7, 2011.

                                              V

                                FRAUD CAUSE OF ACTION

       Plaintiff contends the trial court erred in granting summary judgment as to his

fraud cause of action on the ground it was not a valid cause of action. The trial court

concluded the fraud cause of action was merely a recasting of the malpractice cause of

action and therefore was barred by the one-year malpractice statute of limitations.

A. Statute of Limitations Bar

       Plaintiff alleged in his fraud cause of action that on March 11, 2010, CVS

represented to plaintiff that it would fill plaintiff’s prescription in accordance with the

prescription provided by plaintiff’s doctor. CVS also represented to plaintiff that the

medication provided to plaintiff was what had been prescribed and that CVS has a

                                              13
process to ensure that the prescriptions are filled exactly as prescribed. Plaintiff’s

prescription was not filled as prescribed. Instead, CVS gave plaintiff pills that were 10

times the prescribed dosage. In addition, CVS allegedly did not have safeguards in place

to prevent the dissemination of the incorrect and deadly prescription to plaintiff. Plaintiff

further alleged CVS’s representations were thus false and CVS did not disclose to

plaintiff CVS’s error in filling plaintiff’s prescription or that the medication would be

deadly if taken as prescribed. Plaintiff took the medication, suffered loss of

consciousness, and almost died.

       Plaintiff argues that the one-year statute of limitations does not apply to his fraud

cause of action because the fraud cause of action is a distinct, properly pled theory of

recovery, which was alleged separately from his malpractice cause of action. Plaintiff

asserts that his fraud claim is not founded on the rendering of professional services but,

rather, is founded on marketing that induced customers to believe CVS’s quality control

would prevent mistakes in filling customers’ prescriptions. In addition, plaintiff argues

that he presented evidence raising triable issues concerning his allegations of intentional

misrepresentations as to the accuracy of prescriptions filled by CVS.

       The medical malpractice statute of limitations set forth in section 340.5 applies to

“an action for injury or death against a health care provider based upon such person’s

alleged professional negligence.” (§ 340.5.) The statute of limitations for medical

malpractice is “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.” (§ 340.5.) Plaintiff argues the three-year statute of limitations (§ 338, subd.

                                              14
(d)) generally applicable to fraud causes of action applies to his fraud cause of action, not

the section 340.5, one-year statute of limitations.

       “‘To determine the statute of limitations which applies to a cause of action it is

necessary to identify the nature of the cause of action, i.e., the “gravamen” of the cause of

action.’ [Citation.] The nature of the cause of action and the primary right involved, not

the form or label of the cause of action or the relief demanded, determine which statute of

limitations applies.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198

Cal.App.4th 396, 412; accord, Hydro-Mill Co., Inc. v. Hayward, Tilton and Rolapp Ins.

Associates, Inc. (2004) 115 Cal.App.4th 1145, 1153.) The one-year limitation period

may apply to a medical malpractice action, even when the action includes a fraud claim.

(Tell v. Taylor (1961) 191 Cal.App.2d 266, 271 (Tell); Weinstock v. Eissler (1964) 224

Cal.App.2d 212, 227.) In Weinstock, the court held the one-year, malpractice limitation

period applied even though the plaintiff alleged a cause of action for deceit based on the

physician’s false representations and fraudulent concealment of the nature and extent of

injury. The false representation and concealment claim was treated as a medical

malpractice claim for purposes of applying the statute of limitations. (Ibid.)

       Likewise, in Tell, supra, 191 Cal.App.2d 266, also a medical malpractice action,

the court rejected the plaintiff’s attempt to rely on the three-year limitation for fraud

when alleging a claim for deceit founded on misrepresentation of the plaintiff’s injury.

The Tell court explained: “As to her second cause of action for deceit, the appellant

argues that the trial court erred as the statute of limitations for fraud is three years under

subsection 4 of section 338 of the Code of Civil Procedure. However, appellant has cited

                                              15
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 [citation].”

(Id. at p. 271.)

       Relying on Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514 (Smith),

plaintiff argues that he properly alleged fraud as an independent cause of action, separate

from his malpractice cause of action. In Smith, the court stated that “additional causes of

action frequently arise out of the same facts as a medical malpractice cause of action.

These may include . . . fraud. . .” (Ibid.)

       Plaintiff’s reliance on Smith is misplaced. Smith is distinguishable because it

concerned the issue of whether the MICRA2 statute of limitations, section 364, applied to

the plaintiff’s claim under the Elder Abuse Act.3 In concluding the MICRA statute of

limitations did not apply because the claim was not based on professional negligence, we

noted: “[I]n dealing with the statute of limitations, what is controlling is not the nature of

the cause of action (in the sense of the legal theory), but the gravamen of the cause of

action. [Citation.] One cause of action—e.g., negligent misrepresentation—may be

governed by different statutes of limitations, whenever the gravamen of the cause of

action is different—e.g., professional negligence rather than fraud. [Citation.]” (Smith,

       2   Medical Injury Compensation Reform Act, enacted in 1975.
       3Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code,
§ 15600 et seq.).

                                              16
supra, 133 Cal.App.4th at p. 1525.) In the instant case, the gravamen of the malpractice

and fraud causes of action does not differ. Both causes of action are founded on

malpractice arising from CVS misfilling plaintiff’s prescription, causing him to overdose

on Doxepin.

       Plaintiff attempts to circumvent the one-year statute of limitations by alleging that

CVS fraudulently misrepresented that CVS would properly fill plaintiff’s prescription

and CVS had procedures to prevent filling prescriptions incorrectly. Despite allegations

recasting plaintiff’s malpractice claim as fraud, the one-year statute of limitations

applicable to malpractice nevertheless applies. (Rubin v. Green (1993) 4 Cal.4th 1187,

1201-1202.) Since plaintiff failed to file his complaint within one year of discovery of

his claim, plaintiff’s fraud cause of action is barred by the one-year statute of limitations

under section 340.5 as a matter of law.

B. Fraud Cause of Action Unsupported by Evidence

       Because we conclude the trial court did not err in ruling plaintiff’s fraud cause of

action is barred by the statute of limitations, we need not consider plaintiff’s contention

that evidence supports his fraud cause of action. Nevertheless, we will briefly address the

issue on the merits.

       “The elements of fraud are (a) a misrepresentation (false representation,

concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to

induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v.

Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Plaintiff did not establish in

his opposition to CVS’s summary judgment motion that he can prove each of these

                                              17
elements. He did not provide any evidence he reasonably relied on any false

representations made by CVS to plaintiff regarding his medication or quality control; that

CVS made the alleged representations recklessly or knowing they were false; that CVS

intended to induce plaintiff to rely on the representations; or that such reliance resulted in

plaintiff’s injuries.

       Plaintiff testified at his deposition that he had been filling his Doxepin 10 mg

prescription at CVS since 2009, and had done so on March 11, 2010, just as he had done

in the past. Plaintiff said he did not recall speaking to a pharmacist or anyone else at

CVS regarding his medication when he picked up his prescription that day. He merely

went to CVS to refill his prescription, as he had done many times before, and CVS

mistakenly refilled the prescription with Doxepin 100 mg, instead of Doxepin 10 mg.

The bottle of pills he received on March 11, 2010, accurately stated the pills were 100 mg

and there is no evidence that plaintiff relied on any other representations by CVS that

induced him to take the pills. There is no evidence he was told CVS correctly refilled his

prescription or was told that CVS had a process to ensure his prescriptions were filled

exactly as prescribed, and these representations induced him to take the Doxepin 100 mg

pills on March 11, 2010.

       Since plaintiff has failed to present any evidence establishing that he can prevail

on his fraud claim, the trial court appropriately granted summary judgment on the fraud

cause of action.




                                             18
                                          VI

                                    DISPOSITION

       The judgment is affirmed. Defendant is awarded its costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                             CODRINGTON
                                                                             J.

We concur:


HOLLENHORST
          Acting P. J.


KING
                         J.




                                          19
