Filed 10/3/13 Bui v. Hoang CA6
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


VIEN T. BUI,                                                        H038182
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                   Super. Ct. No. CV161914)

                  v.

BICH-LIEN THI HOANG,

        Defendant and Respondent.


         Vien T. Bui, in consolidated actions filed in early 2010, sued various parties for
dental work performed on him at a clinic over a nine-month period concluding in
November 2008. One of those parties, Lien Hoang, a licensed dentist,1 moved
successfully for summary judgment on dual grounds: (1) Bui could not establish all
essential elements of his claim for professional negligence; and (2) his suit was time-
barred. At the time it granted summary judgment, the court also denied Bui’s motion to
amend his complaint to add new causes of action against Hoang.
         In Bui’s appeal from the judgment entered against him, he claims that the court, in
granting summary judgment, incorrectly applied the statute of limitations for medical
malpractice, Code of Civil Procedure section 340.5, to conclude that his suit was time-




         1
         Hoang was sued by Bui as “Hoang Bich-Lien Thi, D.D.S.” According to her
declaration filed below, Hoang’s correct name is “Lien Hoang.”
barred.2 He argues that there were a number of legal theories other than professional
negligence that were reasonably contemplated in the complaint for which section 340.5
was inapplicable. He contends further that, in any event, the court erred by selecting an
arbitrary date in June 2008 as the commencement date of the statute of limitations under
section 340.5. Lastly, he asserts that the court abused its discretion in denying his motion
for leave to amend his complaint.
       We conclude that the court properly granted summary judgment on the ground that
Bui’s pleaded claim was time-barred, and that the court did not abuse its discretion in
denying Bui leave to amend. We will therefore affirm the judgment.
                               FACTUAL BACKGROUND
       I.     Hoang’s Professional Background
       Hoang is a dentist licensed to practice dentistry in California. As of 2008, she
performed dentistry under her own business license at a facility on Senter Road in San
José that was leased to Hi-Tech Dental, Inc. (Hi-Tech). Pursuant to a written sublease
agreement, Hoang rented a dental suite, equipment, and supplies at the Senter Road
facility. She was not an employee of Hi-Tech and took no direction from that entity.
Hoang was paid directly by her patients and their insurers and received all of the income
for patients she treated. She also paid for her own professional liability insurance; the
insurance policy was in her name. At no time did Hoang employ Kim Trang Nguyen, a
dental assistant, nor did Nguyen ever employ Hoang.
       II.    Bui’s Account of Dental Treatment He Received
       According to Bui’s deposition testimony, his first appointment at Hi-Tech was in
approximately February 2008, when he was first examined by dental assistant Nguyen.
During his first visit, he filled out a patient information form that included patient history


       2
        All further statutory references are to the Code of Civil Procedure unless
otherwise specified.
                                              2
information, which was signed and dated February 12, 2008. He indicated that he was
experiencing a problem with his upper denture in that it did not fit well and was “not very
stable . . ., not comfortable.”
       Also according to Bui’s deposition testimony, in approximately May 2008, he
went to Hi-Tech to be fitted for a new upper denture by Nguyen.3 He also had teeth
extracted that day. The fitting of the new denture was uneventful, and Bui left the office
wearing it. The denture was temporary; he wore it three or four weeks. After later
receiving four mini-implants, he no longer wore the denture. No dental professional ever
criticized the denture, and Bui experienced no problems with it.
       In his declaration filed in opposition to the summary judgment motion, Bui stated
that, at Nguyen’s recommendation, he had three upper teeth extracted by another dentist.
Sometime after the extraction, he saw a different dentist, Frank Tran, who placed four
mini-implants in Bui’s upper jaw. Bui returned a short time later for the fitting of a new
denture by Nguyen. As Bui described in his declaration: “She attempted to place the
new denture on the implants. The new denture immediately became lodged in my mouth.
[Nguyen] first tried to yank it out with the dental pick in her hands. This was extremely
painful. It would not come out. She next picked up the dental drill that was next to the
chair and began to drill it out. This went on for over forty-five minutes. I was in extreme
pain the entire time; I was so scared and did not know what was going on. . . . Finally the
denture came out. Then she fixed the damaged denture for me to use while waiting for
her to order the second new denture. I asked [Nguyen] why the denture got stuck. She
told me that Dr. Tran forgot to put the housings on top of the mini-implants and that the
housing acted like a cap of a bottle, if they are set, the dentures snap in and out.”


       3
         In identifying the year of the treatment, before he ultimately testified that the
treatment was “two years ago” in relation to his September 2010 deposition, Bui testified
that the year was “2098—no, 2000—no, 2010—so 1998; 1999; 2000—oh, that is wrong.
2098—yeah, 2098—1998; ’99—oh, no, no, 1998.”

                                              3
       Bui declared further that he returned after the second new denture was available
and after Tran inserted housings on the mini-implants. In response to being told that
Nguyen had blamed him for the prior new denture becoming stuck, Tran told Bui that it
was Nguyen’s fault. Nguyen placed the second new denture, but soon thereafter, the
mini-implants began falling out and he could not wear the second new denture; he
ultimately was fitted by Nguyen with the prior, damaged denture with unsatisfactory
results. Bui declared: “Dr. Tran could not put more implants in because I had lost bone.
I complained to [Nguyen] and she said to me, [‘]Mr. Bui[,] you have two implants and that
is better than none.[’] I was very hurt by these words and her lack of caring.”
       Bui testified that he does not “know who Dr. Hoang is,” and that he knew of no
facts supporting his allegation that Hoang supervised Nguyen while the latter treated Bui
at Hi-Tech. Likewise, in his declaration signed approximately one and one-half years
after his deposition, Bui stated that he “was never treated by or introduced to Lien
Hoang” and only became aware of her later when he received a copy of his dental
records.
       III.   Hoang’s Account of Dental Treatment She Provided
       According to Hoang’s declaration, which was based in part upon her review of
Bui’s dental chart, she treated Bui on three separate 2008 visits, on February 16, April 25,
and May 9. During the first visit, Bui complained about a loose or unstable upper partial
denture, which Hoang confirmed during her examination. She suggested one option
would be to replace the upper partial denture if it was more than five years old. Bui
favored that option if the new denture would be covered by insurance; Hoang told him
that it would be covered.
       Hoang declared further that on April 25, 2008, she obtained an impression from
Bui for a new full upper denture. Two weeks later on May 9, she placed into Bui’s
mouth the new upper denture that had been produced by a dental laboratory. She did so
after Bui’s upper teeth were extracted the same day by Micaela Balaban, another dentist.
                                             4
Thereafter, although Hoang had advised Bui to return to the office for an adjustment to
the denture after the swelling from the teeth extraction had subsided, he did not do so,
and Hoang never saw Bui after May 9, 2008. She never received any complaints from
Bui about the upper denture.
       IV.    Records of Bui’s Dental Treatment
       Bui’s dental records show that he received treatment at Hi-Tech from February 16,
2008, to November 14, 2008. The records also reflect two written consents to treatment
signed by Bui: (1) a consent dated April 5, 2008, which included initialed paragraphs
that concerned, inter alia, Bui’s consent to the selection and use of medications and
anesthetics, and his consent to tooth extraction; and (2) a consent dated June 13, 2008,
authorizing Tran to perform implant surgery.
                            PROCEDURAL BACKGROUND
       On January 22, 2010, Bui filed a complaint in Superior Court, case number 110-
CV161914, against Nguyen and Hi-Tech. He alleged seven causes of action, captioned
as intentional misrepresentation, battery, false imprisonment, fraud (concealment), unfair
business practices, intentional infliction of emotional distress, and negligence.
       On February 11, 2010, Bui filed a second complaint against Hoang and others,
captioned as one for “dental negligence,” in Superior Court case number 110-CV163603.
(Capitalization and emphasis omitted.) The complaint alleged separate dental negligence
claims against Hoang, and two other dentists affiliated with Hi-Tech, Tran and Balaban.4
Before responses were filed by the defendants in that case, Bui filed a first amended
complaint (the Complaint), which was captioned as one for “dental negligence and
fraud.” (Capitalization and emphasis omitted.) Bui alleged in the Complaint that Hoang



       4
        It is apparent that before Hoang’s summary judgment motion was heard and
granted, Tran settled with Bui and was dismissed from the action, and Balaban
successfully moved for summary judgment.

                                              5
was “employed with or contract[ed] with Hi[-]Tech.” He alleged further that his dental
records reflected that between February and April 2008, Hoang treated him or supervised
treating him, and that Hoang billed Bui’s insurance for services. But Bui also alleged
“that he never saw, met, or received treatment by” Hoang. Bui alleged further that
between February and April 2008, he was treated by a person (unspecified in the
Complaint) who was not a dentist and who “caus[ed] him grave pain.” Bui alleged that
he reasonably believed that Hoang was supervising this person, and that because of her
superior knowledge as a dentist, she should not have allowed this person to diagnose or
treat him.
       Hoang filed a demurrer to the fraud cause of action of the Complaint and a motion
to strike certain allegations, including the prayer for punitive damages. The court
sustained the demurrer on the basis that it failed to state facts sufficient to constitute a
cause of action for fraud and granted the motion to strike the prayer for punitive damages.
The court granted Bui 10 days’ leave to amend. There is nothing in the record
evidencing that Bui thereafter filed an amended complaint relative to the fraud claim.
       Pursuant to the parties’ stipulation, the court in July 2010 ordered the two Superior
Court actions (case numbers 110-CV161914 and 110-CV163603) consolidated.
       In October 2011, Hoang moved for summary judgment, or, in the alternative, for
summary adjudication. Bui opposed the motion. Before filing his opposition, Bui filed a
motion to amend his complaint, which was opposed by Hoang.5
       The motion for summary judgment and motion to amend were scheduled for
hearing on January 24, 2012. The court adopted its tentative rulings with respect to both
motions, which tentative rulings were not contested. In those rulings, the court granted
Hoang’s motion for summary judgment and denied Bui’s motion to amend. Formal


       5
      Bui filed an earlier motion to amend, which was denied without prejudice in
November 2011. That ruling is not being challenged in this appeal.

                                               6
orders on both motions were thereafter entered, and a judgment was entered in favor of
Hoang. Bui filed a timely appeal.
                                        DISCUSSION
       I.     The Summary Judgment Order
              A.      Summary Judgment and Standard of Review
       “The purpose of the law of summary judgment is to provide courts with a
mechanism to cut through the parties’ pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As such, the summary judgment
statute, section 437c, “provides a particularly suitable means to test the sufficiency of the
plaintiff’s prima facie case and/or of the defendant’s [defense].” (Caldwell v. Paramount
Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) A summary judgment motion
must demonstrate that “material facts” are undisputed. (§ 437c, subd. (b)(1).) “The
materiality of a disputed fact is measured by the pleadings.” (Conroy v. Regents of
University of California (2009) 45 Cal.4th 1244, 1250; see also Metromedia, Inc. v. City
of San Diego (1980) 26 Cal.3d 848, 885, revd. on other grounds Metromedia, Inc. v. City
of San Diego (1981) 453 U.S. 490.)
       The moving party “bears the burden of persuasion that there is no triable issue of
material fact and that he [or she] is entitled to judgment as a matter of law.” (Aguilar,
supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment
must “show[ ] that one or more elements of the cause of action . . . cannot be established
[by the plaintiff], or that there is a complete defense to that cause of action.” (§ 437c,
subd. (p)(2); see also Aguilar, at p. 853.) A defendant meets his or her burden by
presenting affirmative evidence that negates an essential element of the plaintiff’s claim.
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Alternatively, a defendant
meets his or her burden by submitting evidence “that the plaintiff does not possess, and
cannot reasonably obtain, needed evidence” supporting an essential element of its claim.
                                               7
(Aguilar, at p. 855.) Where the summary judgment motion is based upon an affirmative
defense, “ ‘the defendant has the initial burden to show that undisputed facts support each
element of the affirmative defense.’ [Citations.]” (Anderson v. Metalclad Insulation
Corp. (1999) 72 Cal.App.4th 284, 289.)
       Since summary judgment motions involve pure questions of law, we review
independently the granting of summary judgment to ascertain whether there is a triable
issue of material fact justifying reinstatement of the action. (Wiener v. Southcoast
Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142; Chavez v. Carpenter (2001) 91
Cal.App.4th 1433, 1438.) In doing so, we “consider[] all of the evidence the parties
offered in connection with the motion (except that which the court properly excluded)
and the uncontradicted inferences the evidence reasonably supports. [Citation.]”
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
       In our independent review of the granting of summary judgment, we conduct the
same three-step procedure employed by the trial court. First, “we identify the issues
framed by the pleadings because the court’s sole function on a motion for summary
judgment is to determine whether there is a ‘triable issue as to any material fact’ (§ 437c,
subd. (c)), and to be ‘material’ a fact must relate to some claim or defense in issue under
the pleadings. [Citation.]” (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) Second,
we examine the motion to determine whether it establishes facts justifying judgment in
the moving party’s favor. (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438.)
Third, we scrutinize the opposition—assuming movant has met its initial burden—to
“decide whether the opposing party has demonstrated the existence of a triable, material
fact issue [to defeat summary judgment]. [Citation.]” (Ibid.; see also Burroughs v.
Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 688.) We need not defer to the
trial court and are not bound by the reasons in its summary judgment ruling; we review
the ruling of the trial court, not its rationale. (Kids’ Universe v. In2Labs (2002) 95
Cal.App.4th 870, 878.)
                                              8
       Summary judgment may in an appropriate case be based upon moving party-
defendant’s establishing its defense of the statute of limitations. “While resolution of the
statute of limitations issue is normally a question of fact, where the uncontradicted facts
established through discovery are susceptible of only one legitimate inference, summary
judgment is proper. [Citation.]” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112
(Jolly); see also Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054-
1055.) “ ‘It is a question of law whether a case or a portion of a case is barred by the
statute of limitations, and we are not bound by the trial court’s determination and instead
conduct a de novo review. [Citation.]’ [Citations.]” (Sahadi v. Scheaffer (2007) 155
Cal.App.4th 704, 713-714.)
              B.     Parties’ Contentions
       In challenging the order granting summary judgment, Bui asserts that the court
erred by accepting Hoang’s evidence that she in fact treated him and thereby rejected
Bui’s conflicting evidence that Hoang provided no such treatment. Acceptance of the
moving party’s evidence, Bui argues, is contrary to the requirement that the court accept
as true for purposes of summary judgment the evidence offered by the party opposing the
motion. (See Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138,
148.) He contends that “[o]nly by accepting [Hoang’s] evidence [that she treated Bui]
could the court have concluded” that section 340.5 was the applicable statute of
limitations for his claims. He argues that Hoang’s motion addressed only a claim of
“medical negligence” and that there were a number of theories besides that claim that
were “ ‘reasonably contemplated’ from the factual allegations” pleaded in the Complaint.
He contends that the limitation of actions for medical negligence (including dental
malpractice) provided in section 340.5 did not apply to these other legal theories.
       Bui argues further that even if the court correctly determined that section 340.5
applied to the Complaint, it improperly found that Bui’s claims were time-barred because
it selected an incorrect commencement date (June 2008) for the statute of limitations. He
                                             9
contends that this June 2008 date was based upon the date that dental assistant Nguyen’s
treatment resulted in causing the new full upper denture over the implants to become
lodged in his mouth, and that “[i]n order to rule that this event triggered the statute as to
Dr. Hoang’s liability, the court had to conclude that there was a link between the denture
that Dr. Hoang allegedly delivered on May 9, 2008[,] and the triggering event.” Because,
Bui argues, there was no such link, the June 2008 date selected by the court was
improper. He also asserts that the dental work performed on him at Hi-Tech was a single
course of treatment and that the statute of limitations therefore commenced to run
“sometime after the date [he] was told by [Nguyen] that he must be satisfied with the
results obtained [from the treatment] even if less than promised.”
       Hoang responds that summary judgment was proper. First, she asserts that there
was no triable issue of fact evidencing that she was negligent in her treatment of Bui, and
therefore the court properly granted summary judgment on that ground. Second, she
argues that the court properly found the case was time-barred. Under section 340.5 (she
contends), Bui was required to bring suit within one year of the date he discovered or
reasonably should have discovered his injury, and that here, he knew he had been injured
at the time of the June 2008 appointment when Nguyen caused the new full upper denture
over the implants to become lodged in his mouth.
              C.     Summary Judgment Was Properly Granted
                     1.      Section 340.5 Applies to Bui’s Claim
       Under section 340.5, a party asserting a claim against a health care provider for
professional negligence must bring suit within three years of the injury or not more than
one year after the plaintiff discovers, or in the exercise of reasonable diligence should
have discovered, the injury, whichever occurs first.6 The limitation of actions provisions

       6
         Section 340.5 provides in relevant 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
                                              10
of section 340.5 apply to malpractice claims against dentists. (Kitzig v. Nordquist (2000)
81 Cal.App.4th 1384, 1391 (Kitzig).)
       We must evaluate first whether the trial court correctly held that section 340.5 was
applicable to Bui’s Complaint. As Bui acknowledges, “[t]o 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. [Citations.] ‘[T]he nature of
the right sued upon and not the form of action nor the relief demanded determines the
applicability of the statute of limitations under our code.’ [Citation.]” (Hensler v. City of
Glendale (1994) 8 Cal.4th 1, 22-23 (Hensler).) Stated otherwise, the relevant question
for a statute of limitations inquiry is a determination of “the primary interest invaded by
defendant’s wrongful conduct. [Citation.]” (Barton v. New United Motor Manufacturing,
Inc. (1996) 43 Cal.App.4th 1200, 1207 (Barton).)
       The sole claim alleged against Hoang in the Complaint7 was captioned as one for
“dental negligence.” (Capitalization and emphasis omitted.) Bui alleged that Hoang was
a dentist licensed by the State of California to practice dentistry, and that she held
“herself out to possess that degree of skill, ability, and learning common to prudent
practitioners practicing dentistry” in this state. He alleged further that, although he
“maintains that he never saw, met, or received treatment by [Hoang],” his dental records


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:
(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. . . .”
        7
          As noted, the court sustained with leave to amend Hoang’s demurrer to the fraud
cause of action of the Complaint on the basis that it failed to state facts sufficient to
constitute a cause of action, and Bui did not thereafter amend the Complaint.
Accordingly, the only claim against Hoang alleged in the Complaint that was before the
court in connection with the summary judgment motion was the dental negligence cause
of action.
                                              11
from Hi-Tech showed that she treated him or supervised in treating him for dental
problems between February and April 2008, and that she billed his insurance for those
alleged services. Bui alleged that (1) between February and April 2008, he was
diagnosed, treated, and examined by a non-dentist who “used dental instruments on
[him,] causing him grave pain”; (2) the non-dentist’s and Hoang’s respective names or
initials appear adjacent to each other on Bui’s records, indicating that Hoang “sign[ed]
off on” treatment performed upon him; (3) because of her superior training, Hoang
“knew, or in the exercise of reasonable diligence, should have known, of her negligence,
misconduct, and culpability” in that “[s]he should not have allowed the non-dentist to
treat, diagnos[e], or use dental instruments on [Bui]”; (4) he “was injured in body,
including but not limited to, pain cause by a drill handled by a non-dentist under the
direction and supervision of [Hoang]”; and (5) he “has incurred and will continue to incur
dental and related medical expense in treating the injuries caused by [Hoang’s]
negligence.”
       It is clear that the gravamen of the Complaint was a claim of dental negligence.
The right of Bui to be free from injury resulting from the negligent treatment, diagnosis
and care by dental professionals was “the primary interest invaded by defendant’s
wrongful conduct. [Citation.]” (Barton, supra, 43 Cal.App.4th at p. 1207.)
       Bui, however, argues that the gravamen of the Complaint was not “professional
negligence[; rather, it was] facilitating dental treatment by an unlicensed person.” He
contends that a number of other legal theories are “ ‘reasonably contemplated’ from the
factual allegations” in the Complaint. He argues that these other legal theories—which
he identifies as ordinary negligence, false imprisonment, civil conspiracy to conceal the
unlawful practice of dentistry, breach of fiduciary duty, aiding and abetting fraudulent




                                            12
concealment, and vicarious liability for Nguyen’s wrongful acts—have limitations
periods other than section 340.5.8 We disagree with Bui’s contention.
       The Complaint plainly is one for dental negligence and was captioned as such by
Bui himself. Because “the pleadings set the boundaries of the issues to be resolved at
summary judgment” (Oakland Raiders v. National Football League (2005) 131
Cal.App.4th 621, 648 (Oakland Raiders)), and “the plaintiff cannot bring up new,
unpleaded issues in his or her opposing papers [citation]” (Government Employees Ins.
Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4), we reject Bui’s attempt to
have the allegations of the Complaint treated as something they are not.
       Furthermore, even were we to credit Bui’s contention that the Complaint may be
fairly read to include claims other than for dental negligence, these other purported
claims do not change the fact that the gravamen of the Complaint is professional
negligence. Sahadi v. Scheaffer, supra, 155 Cal.App.4th 704 is instructive. There, the
plaintiffs alleged a claim of malpractice against accountants, but also asserted other
related claims against the professionals. We held: “The two-year statute of limitations
prescribed by section 339, subdivision (1) applies to actions for accounting malpractice.
[Citations.] And where the gravamen of the case is accounting negligence, the two-year
statute is applicable, notwithstanding the existence of other claims against the
professionals, such as misrepresentation, for which a different statute of limitations might
otherwise apply. [Citation.]” (Id. at pp. 714-715; see also Hydro-Mill Co., Inc. v.
Hayward, Tilton and Rolapp Ins. (2004) 115 Cal.App.4th 1145, 1159 (Hydro-Mill)
[because gravamen of suit against insurance broker was professional negligence, the




       8
         We observe that Bui’s analysis is incomplete. Insofar as he identifies six claims
purportedly not sounding in professional negligence, he fails to identify the specific
statute of limitations he claims to be applicable, except with respect to the ordinary
negligence theory.
                                             13
plaintiff could not “prolong the limitations period by invoking a fiduciary theory of
liability”].)
        Similarly, in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 400-401 (Carter), the plaintiffs, children of a deceased patient, sued a
hospital and a skilled nursing facility for elder abuse, willful misconduct, and wrongful
death. The trial court sustained the hospital’s demurrer to the complaint without leave to
amend. (Id. at pp. 402-403.) On review, the appellate court concluded, inter alia, that the
demurrer to the willful misconduct cause of action was properly sustained without leave
to amend because it was time-barred. (Id. at pp. 412-414.) It held the gravamen of the
purported cause of action for willful misconduct was a survivor action under section
377.20, subdivision (a) for professional negligence. (Carter, at p. 413.) As such, the
claim was governed by the statute of limitations for medical malpractice actions, section
340.5 (Carter, at p. 413), and the court held that because the plaintiffs suspected
wrongdoing at the time of their father’s death in August 2008, their failure to file suit
within one year thereafter resulted in the suit being untimely. (Id. at p. 414.)
        The unasserted claims that Bui contends are “ ‘reasonably contemplated’ ” from
the allegations of the Complaint—a contention we assume to be true only for purposes of
this analysis—are based upon an underlying claim that Bui was injured as a result of
dental negligence from treatment performed by Nguyen. Regardless of whether Hoang
actually treated Bui, his claim against Hoang is based upon her affiliation with Hi-Tech
and her alleged connection with Nguyen,9 who Bui alleges directly caused him injury
through her diagnosis, treatment, and examination of him, and her “use[ of] dental
instruments on [him, that] caus[ed] him grave pain.”



        9
          We note that although Bui alleged that Hoang directed and supervised Nguyen,
he testified that he knew of no facts supporting his allegation that Hoang supervised
Nguyen while the latter treated Bui.
                                             14
       Therefore, similar to Carter, supra, 198 Cal.App.4th 396, in which the willful
misconduct claim was deemed a claim for medical malpractice, the gravamen of the
Complaint against Hoang, regardless of how Bui may now characterize its allegations, is
a claim for professional negligence. Accordingly, the court correctly determined that
section 340.5, the statute of limitations applicable for dental malpractice claims (Kitzig,
supra, 81 Cal.App.4th at p. 1391), applied to Bui’s Complaint.
                      2.     Bui’s Complaint Was Barred under Section 340.5
       As noted, a dental negligence suit under section 340.5 must be filed within three
years of the injury or not more than one year after the plaintiff discovers, or in the
exercise of reasonable diligence should have discovered, the injury, whichever occurs
first. “The patient is charged with ‘presumptive’ knowledge of his negligent injury, and
the statute commences to run, once he has ‘ “notice or information of circumstances to
put a reasonable person on inquiry, or has the opportunity to obtain knowledge from
sources open to his investigation . . . .” ’ [Citations.] Thus, when the patient’s
‘reasonably founded suspicions [have been aroused],’ and [he or] she has actually
‘become alerted to the necessity for investigation and pursuit of [his or] her remedies,’
the one-year period for suit begins. [Citation.]” (Gutierrez v. Mofid (1985) 39 Cal.3d
892, 896-897.) “A plaintiff need not be aware of the specific ‘facts’ necessary to
establish the claim; that is a process contemplated by pretrial discovery. Once the
plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must
decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear
that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly,
supra, 44 Cal.3d at p. 1111; see also Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-
398 (Norgart).)
       For instance, in Gray v. Reeves (1977) 76 Cal.App.3d 567, 571 (Gray), the
defendant physician prescribed prednisone in 1968 for the plaintiff-patient’s infectious
hepatitis, and he later developed a degenerative hip disease. He testified in deposition
                                              15
that he was told by the defendant in January 1971 (the last time the physician saw him)
that the disease “was ‘probably caused’ by the prednisone.” (Ibid.) The plaintiff also
testified that between February and May 1971, he had “ ‘felt that Dr. Reeves had done
something wrong.’ ” (Id. at p. 573.) The plaintiff had corrective surgery in May 1971,
but did not file his negligence suit against the physician until August 1973. (Id. at
p. 571.) The appellate court, applying section 340.5, held that the defendant had
established by summary judgment that the malpractice action was time-barred because it
was filed more than one year after the plaintiff discovered (or in the exercise of
reasonable diligence should have discovered) his injury and its negligent cause. (Gray, at
p. 576.) The court reasoned: “Here Gray knew he was suffering from deterioration of
the hip socket, a malady different from what he was being treated for. . . . He does not
deny the cause of the injury was explained to him on January 29, 1971, and he clearly
understood the drug prednisone had probably caused the problem. He also knew at that
time Reeves was the only one who had prescribed the drug . . . [¶] We believe this is
enough to put Gray on notice an injury had occurred and the drug Reeves prescribed was
the actionable cause. That the drug was negligently prescribed was a matter
constructively within Gray’s knowledge and he is chargeable with knowledge of the fact.
In any event, however, Gray admitted in the deposition that he knew Reeves had been
wrong in the prescribing of the drug and he knew that before May 1971 when he was
operated on . . . Clearly, the statute of limitations began to run on that date.” (Id. at
p. 577, fn. omitted; see also Gutierrez v. Mofid, supra, 39 Cal.3d at p. 898 [“if one has
suffered appreciable harm and knows or suspects that professional blundering is its cause,
the fact that an attorney has not yet advised him does not postpone commencement of the
limitations period”].)
       Here, although Bui provided very few definitive dates in either his deposition or in
his opposition to the summary judgment motion, he acknowledged that his treatment at


                                              16
Hi-Tech began in February 2008.10 It is also undisputed that his upper teeth were
extracted by another dentist in May 2008; he received an upper denture on May 9, 2008,
a procedure about which he had no complaints; and Tran performed implant surgery on
Bui on June 13, 2008. Bui likewise did not dispute that a key event as alleged in both his
complaint against Nguyen and Hi-Tech and in his Complaint against Hoang—that a new
full upper denture became lodged in Bui’s mouth and had to be pried out, causing
extreme pain—occurred on or about June 27, 2008, more than 19 months before Bui filed
suit against Hoang. Lastly, Bui’s dental records reflected that his last treatment at Hi-
Tech occurred in November 2008, and Bui did not dispute this fact; in fact, he admitted it
in pleadings filed below.
       It is plain that the signal event that resulted in the commencement of the one-year
limitations period under section 340.5 was the June 27, 2008 appointment with dental
assistant Nguyen. Bui describes this dramatic incident11 as one in which the new full
upper denture became lodged in his mouth immediately; that Nguyen took various
measures—ones that were “extremely painful” to him—to try to dislodge the denture,
including attempting to “yank it out with [a] dental pick” and later using a dental drill.
Bui declared that he was “in extreme pain the entire” 45 minutes-plus that the denture
was stuck. He also declared that blame for the problem, according to what Nguyen told
him at the time, rested with Tran. We conclude that these facts, uncontroverted by
moving party, were sufficient to give Bui, at the very least, “ ‘presumptive’ knowledge of
his negligent injury . . . [such that his] ‘reasonably founded suspicions [have been



       10
         This date is confirmed in Bui’s dental records that were submitted both in
support of and in opposition to the summary judgment motion.
      11
         We liberally construe the declaration of Bui, the opposing party (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 768), and assume for purposes of the
summary judgment motion the truth of his factual account of this appointment with
Nguyen. (Singleton v. U.S. Gypsum Co. (2006) 140 Cal.App.4th 1547, 1558.)
                                             17
aroused],’ [thereby resulting in the commencement of the] one-year period for suit . . .”
(Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 896-897.)
       But even were we to conclude that the statute of limitations was not triggered by
Nguyen’s treatment and lodging of the new full upper denture in Bui’s mouth on June 27,
2008, it is uncontroverted that any dental treatment of Bui occurring at Hi-Tech ceased
by the end of November 2008. In his declaration, Bui stated that there were several
office visits after June 27, in which (1) Tran told Bui that it was Nguyen’s fault that the
prior new denture had become stuck; (2) a second new denture was placed by Nguyen,
but the procedure was unsuccessful because his mini-implants fell out shortly afterward;
(3) he was then fitted by Nguyen with the prior, damaged denture with unsatisfactory
results; and (4) he complained to Nguyen about the implant and new denture procedure
being unsuccessful, and he was “very hurt by [Nguyen’s response] and her lack of
caring.” Based upon this undisputed evidence—indeed, evidence presented by Bui,
himself—the one-year statute of limitations under section 340.5 commenced no later than
November 30, 2008 (if not earlier on June 27). By the time his implant and denture
treatment at Hi-Tech had concluded by the end of November 2008, Bui knew (or
reasonably should have known) that he had been injured and knew or “suspect[ed] that
professional blundering [was] its cause.” (Gutierrez v. Mofid, supra, 39 Cal.3d at p.
898.) Yet Bui did not file his Complaint until February 11, 2010.
       Moreover, the fact that Bui may have been ignorant of certain details supporting a
claim of negligent treatment at the time his dental treatment terminated does not prevent
the limitations period from commencing. For example, in Dolan v. Borelli (1993) 13
Cal.App.4th 816, 820 (Dolan), the plaintiff had hand surgery for carpal tunnel syndrome,
and the surgeon told Dolan that she should be pain-free within 60 days after the surgery.
She was still experiencing pain after that time period, and she then believed that the
surgery had been performed improperly. (Ibid.) She later consulted another physician,
who performed a second surgery, at which time the precise nature of the first surgeon’s
                                             18
malpractice was ascertained. (Ibid.) The appellate court rejected the plaintiff’s
contention that the limitations period under section 340.5 did not commence until after
the second surgery, reasoning: “[T]he essential inquiry is when did [the patient] suspect
[the first doctor] was negligent, not when did she learn precisely how he was negligent.”
(Dolan, at p. 824; see also Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1298
(Knowles).)
       Lastly, we reject Bui’s claim that the statute of limitations did not commence until
sometime after his dental treatment terminated, i.e., at the time when he discovered that
Hoang had allegedly falsely claimed to Bui’s insurer that she had treated him.12 It is not
the discovery of the person committing the alleged wrong that triggers the statute; it is the
knowledge (actual or constructive) of the claim that controls. “[T]he plaintiff may
discover, or have reason to discover, the cause of action even if he does not suspect, or
have reason to suspect, the identity of the defendant. [Citation.] That is because the
identity of the defendant is not an element of any cause of action. [Citation.] It follows
that failure to discover, or have reason to discover, the identity of the defendant does not
postpone the accrual of a cause of action, whereas a like failure concerning the cause of
action itself does.” (Norgart, supra, 21 Cal.4th at p. 399, fn. omitted; see also Knowles,
supra, 118 Cal.App.4th at p. 1299.)
       The commencement date of the one-year statute of limitations under section 340.5
was June 27, 2008, or, at the latest, November 30, 2008. Because Bui failed to bring suit




       12
          Bui does not identify in his appellate briefs, nor does he address in his summary
judgment opposition, the date when he discovered that Hoang had allegedly made this
false representation to his insurer. In his declaration, he merely stated that he “became
aware of [Hoang’s] existence after [he] obtained a copy of [his] treatment records from
[his] insurance and saw that she was listed as the treating physician.”
                                             19
against Hoang until February 11, 2010, the action was time-barred. Therefore, the court
properly granted summary judgment on this basis.13
       II.    The Motion to Amend the Complaint
              A.     Background and Contentions
       After Hoang filed her summary judgment motion, Bui filed a motion to amend his
complaint. Citing the liberal policy of allowing pleading amendments (see Huff v.
Wilkins (2006) 138 Cal.App.4th 732, 746 (Huff)), Bui argued that Hoang would not be
prejudiced by the amendment and that the new theories of liability in the proposed second
amended complaint were based upon the same underlying facts alleged when the action
was initiated. Hoang opposed the motion to amend, contending that the motion (1) failed
to identify any reasons for the amendment; (2) was untimely; (3) was prejudicial to
Hoang because, inter alia, the proposed amended pleading included a prayer for punitive
damages; and (4) would needlessly cause the continuance of trial and further cost to all
parties resulting from the additional discovery required to address the additional claims.
       The motion to amend was denied by the court. It concluded, inter alia, that the
new claims asserted in the proposed second amended complaint were time-barred.
       Bui argues that the court abused its discretion in denying the motion to amend. He
argues that the proposed amended pleading “sought to clarify the pleadings and add
theories of liability.” He urges that, contrary to the trial court’s finding, the new causes
of action in the proposed second amended complaint were not time-barred because
section 340.5 was inapplicable to those claims. Hoang responds that the court did not
abuse its discretion in denying leave to amend because the proposed claims for battery


       13
         Because we have found that the court correctly granted summary judgment on
the ground that Hoang had established his statute of limitations defense, we need not
address the other grounds asserted by Hoang in support of summary judgment, including
her contention that Bui could not establish all requisite elements of his dental negligence
claim. (See Smith v. St. Jude Medical, Inc. (2013) 217 Cal.App.4th 313, 316, fn. 3; Jones
v. County of Los Angeles (2002) 99 Cal.App.4th 1039, 1044.)
                                              20
and negligence per se were time-barred under section 340.5, the unfair trade practices
claim was meritless on its face, and, in any event, Bui failed to offer any excuse for his
delay in seeking leave to amend.
              B.      Court’s Denial of Leave to Amend Was Not an Abuse of Discretion
       “ ‘ “[T]he trial court has wide discretion in allowing the amendment of any
pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters
will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]” ’
[Citations.] Courts must apply a policy of great liberality in permitting amendments to
the complaint at any stage of the proceedings, up to and including trial, when no
prejudice is shown to the adverse party. [Citation.] However, ‘ “even if a good
amendment is proposed in proper form, unwarranted delay in presenting it may—of
itself—be a valid reason for denial.” ’ [Citation.] [¶] . . . Leave to amend is properly
denied when the facts are undisputed and as a substantive matter no liability exists under
the plaintiff’s new theory. [Citation.]” (Huff, supra, 138 Cal.App.4th at p. 746.)
“Although there is a strong policy in favor of liberal allowance of amendments, the trial
court’s discretion will not be disturbed on appeal unless it clearly has been abused.
[Citation.] . . . [I]f the proposed amendment fails to state a cause of action, it is proper to
deny leave to amend. [Citation.]” (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217,
230; see also Oakland Raiders, supra, 131 Cal.App.4th at p. 654 [court properly denied
leave to amend sought after granting of summary adjudication motion, where proposed
new claims “were without merit as a matter of law”].) And the trial court may properly
deny leave to amend when the claim alleged in the proposed pleading is time-barred.
(Foxborough v. Van Atta, at p. 231; see also Dominguez v. City of Alhambra (1981) 118
Cal.App.3d 237, 243.)
       We agree with the trial court that the proposed second amended complaint alleged
claims that were time-barred. As we have discussed, (see pt. I.C.1, ante), we ascertain
the applicable statute of limitations by determining “the ‘gravamen’ of the cause of
                                              21
action. [Citations.]” (Hensler, supra, 8 Cal.4th at pp 22-23.) Here, the three proposed
new causes of action were identified by Bui as claims for unfair trade practices in
violation of the unfair competition law, Business and Professions Code section 17200
(the UCL claim); negligence per se; and battery.14 In the UCL claim, Bui alleged that
Hoang engaged in unlawful practices “by enabling and facilitating the practice of
dentistry by a non-dentist.” He alleged, inter alia, that Hoang engaged in unprofessional
conduct as a dentist by “knowingly permit[ting] grossly negligent treatment by a dental
hygienist [Nguyen]”; she “was in effect the front man [sic] for [Nguyen’s] multiple acts
of unlicensed practice of dentistry,” including Nguyen’s actions during the June 27, 2008
appointment; and that Nguyen’s “acts[, which] harmed, in the extreme, [Bui]” would not
have occurred, “but for Dr. Hoang’s willful neglect of her professional responsibility.”
Bui alleged as part of the proposed negligence per se claim that Hoang “aided and abetted
the unlicensed practice of [Nguyen and Hi-Tech]”; he was injured as a direct result of
Hoang’s “multiple acts of unlawful and unprofessional conduct” because Nguyen would
not have otherwise treated him; and Hoang’s alleged conduct was not allowed under her
dentistry license. And Bui alleged in the proposed battery claim that Nguyen caused a
denture to become lodged in his mouth, and she “yanked on it and when that didn’t work,
used an electric dental appliance to free the denture,” procedures that were “grossly
negligent” and “extremely painful”; and Hoang was “vicariously liable for this battery as
she enabled [Nguyen’s] unauthorized practice of dentistry.”
       The gravamen of each of the three proposed causes of action was dental
negligence. As we discussed in connection with Bui’s contention that his unasserted


       14
          Although we conclude that the proposed negligence per se claim was time-
barred, we note that it is not a cause of action separate from one for negligence, but is
instead a doctrine “ ‘creat[ing] an evidentiary presumption that affects the standard of
care in a cause of action for negligence.’ [Citation.]” (Johnson v. Honeywell Internat.
Inc. (2009) 179 Cal.App.4th 549, 555.)

                                            22
claims in the Complaint precluded summary judgment (see pt. I.C.1., ante), the UCL,
battery and negligence per se claims in the proposed Second Amended Complaint are all
based upon an underlying claim that Bui was injured as a result of negligence stemming
from dental treatment performed by Nguyen. His claims against Hoang are founded upon
her professional acts and omissions as a dentist and her affiliation with Hi-Tech.
Therefore, regardless of the form of the action, the nature of the right sued upon is the
determinative question. (Hydro-Mill, supra, 115 Cal.App.4th at p. 1159.) Here, the
nature of the right sued upon was Bui’s status as a patient, the actions taken toward him
in the treatment of his dental problems, and the injuries he allegedly sustained as a result
of that treatment. Bui cannot, therefore, escape the limitations provisions of section
340.5 governing dental malpractice claims by attempting to cast those claims under
different forms of action. (See, e.g., Carter, supra, 198 Cal.App.4th 396, 413 [gravamen
of willful misconduct claim against hospital was survivor action for professional
negligence]; Sahadi v. Scheaffer, supra, 155 Cal.App.4th at pp. 714-715
[misrepresentation claim against accountants governed by statute of limitations for
accounting negligence]; Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1368 [breach
of fiduciary duty claim against attorney governed by attorney malpractice statute of
limitations].)
       As we have discussed (see pt. I.C.2., ante), Bui’s claim for dental negligence in
the Complaint was barred by the applicable statute of limitations, section 340.5. Because
the new claims alleged in the proposed second amended complaint were governed by the
same statute and were thus also time-barred, the court did not abuse its discretion in
denying the motion for leave to amend. (Foxborough v. Van Atta, supra, 26 Cal.App.4th
at p. 231.)




                                             23
                                       DISPOSITION
      The judgment entered on the underlying orders granting summary judgment and
denying Bui’s motion for leave to amend is affirmed.




                                               Márquez, J.




WE CONCUR:




    Elia, Acting P.J.




    Bamattre-Manoukian, J.




                                          24
