Filed 4/10/2013 Demma v. Dominican Hospital 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

SOLOMON ERIC DEMMA,                                                   H038321
                                                                      (Santa Cruz County
         Plaintiff and Appellant,                                      Super. Ct. No. CV173181)

         v.

DOMINICAN HOSPITAL et al.,

         Defendants and Respondents.


                                                   INTRODUCTION
         Appellant Solomon Demma appeals from a judgment dismissing his complaint
against Dominican Hospital and its employees Vicki Miranda, George Jarrow, Nannette
Mickiewcz, and Heidi Troutner (collectively Dominican). Demma claims the trial court
erred in sustaining Dominican‟s demurrer without leave to amend, asserting that his
complaint sufficiently stated causes of action for general negligence and intentional torts,
and that his claims are not barred by the statute of limitations under Code of Civil
Procedure section 340.5.
         Reviewing Demma‟s complaint on the merits, we find it alleged matters barred by
the applicable statute of limitations, and further that it failed to adequately state a claim.
We will therefore affirm the trial court‟s judgment in favor of Dominican.
                              FACTUAL AND PROCEDURAL BACKGROUND
         Demma‟s underlying complaint includes a cause of action for general negligence
arising from events in 2010, as well as two causes of action for intentional torts in March
2011 and August 2011. Demma also requested punitive damages based on respondents‟
“malice” and “oppression” as defined in Civil Code section 3294.1 Demma represented
himself in the proceedings below, and represents himself again on appeal. The facts
alleged in Demma‟s complaint are summarized briefly here.
       Negligence Claim
       Demma was a patient at Dominican Hospital‟s Behavioral Health Unit several
times in 2010, where he was admitted under Welfare and Institutions Code section 5150
72-hour mental health holds.2 On those occasions, Demma was also certified for
additional days of intensive treatment for his mental disorder under Welfare and
Institutions Code section 5250.3
       Demma claimed that while at Dominican, staff members negligently evaluated and
treated his symptoms, and that as a result of Dominican‟s negligence, his symptoms
escalated to the point where Demma struck fellow patients twice and struck a hospital
security guard once.
       The incidents where Demma struck other patients occurred sometime in August
and October 2010. Demma claimed that Dominican staff were present when he struck


       1
          Civil Code section 3294 defines “malice” as “conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the rights or safety of others,” and
defines “oppression” as “despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person‟s rights.” (Civ. Code, § 3294, subd. (c)(1)-
2).)
        2
          Welfare and Institutions Code section 5150 allows certain individuals such as
peace officers to involuntarily commit those who are a danger to themselves or others, or
who are gravely disabled as a result of a mental disorder, to a designated mental health
facility for a 72-hour treatment and evaluation.
        3
          Welfare and Institutions Code section 5250 provides that in certain situations
individuals subject to a 72-hour Welfare and Institutions Code section 5150 hold may be
certified for an additional 14 days of intensive treatment.


                                            2
the patients, yet hospital staff failed to intervene despite their knowledge of his symptoms
and past behavior. According to Demma, his verbal altercations with fellow patients
ultimately turned physical as a direct result of Dominican‟s failure to act.
       The third incident of alleged general negligence occurred in December 2010.
Demma believed that a fellow patient was stalking him and mimicking his actions. When
Demma requested assistance from hospital staff, they “smirked” and acted rudely toward
him. The staff‟s rude behavior and failure to intervene sparked another escalating
situation, after which Demma was placed in an isolation room, hospital staff called a
security guard, and Demma struck him in the face.
       As a result of these incidents, Demma was taken to the Santa Cruz County jail
several times, which placed him in “grave danger,” according to the complaint
       Intentional Tort Claim from March 2011
       Demma was charged with misdemeanor battery based on one or more of the
incidents alleged in his negligence claim. A hospital social worker told Demma the
charges had been dropped, and Demma‟s mother confirmed with the social worker that
the charges were indeed dropped. Demma asserts that contrary to the information
provided by the hospital social worker, the charges were not dropped. Due to the
misinformation, Demma missed his court date and spent six days in county jail in March
2011 for failing to appear. The trial judge in Demma‟s criminal matter then referred him,
presumably under Penal Code section 1368, to Atascadero State Hospital where he stayed
for two months until he was deemed competent to stand trial. Demma lost $5,000 in
“disability grant monies” during the time he spent at the state hospital. Demma was
ultimately placed on probation for four years in the misdemeanor case.
       Intentional Tort Claim from August 2011
       On August 14, 2011, Demma was again taken to Dominican Hospital by sheriff‟s
deputies on a Welfare and Institutions Code section 5150 mental health hold. Hospital

                                              3
personnel kept Demma in the emergency room instead of the hospital‟s Behavioral
Health Unit because the unit refused to admit him due to his previous assaultive behavior
at the hospital, and further refused to have a psychiatrist examine him. Demma claimed
that Dominican Hospital employees slandered him to other institutions, such that other
hospitals became too “frightened” to admit him. Demma argued that the hospital‟s
failure to admit and properly evaluate him violated the provisions of Welfare and
Institutions Code section 5150.1 relating to the transport and assessment of individuals
being held under section 5150.
       The Complaint , Demurrer, and Motion to Strike
       Demma filed a complaint against Dominican on January 31, 2012, alleging a cause
of action for general negligence and two causes of action for intentional torts. Demma
requested actual damages of $5,000 and punitive damages of $50,000 for malice and
oppression.
       Dominican demurred to Demma‟s complaint on March 7, 2012. As to the claim of
general negligence, Dominican reasoned that although Demma labeled his claim “general
negligence,” the substance of the complaint sounded in professional negligence.
Accordingly, Dominican argued that Demma‟s claim was barred by the one-year statute
of limitations provided in Code of Civil Procedure section 340.5. Dominican also
challenged Demma‟s “intentional tort” cause of action as unclear, failing to state a cause
of action, and appearing to be made by Demma‟s mother, Mary Carman, who lacked
standing to bring an action on Demma‟s behalf.
       Along with its demurrer, Dominican moved to strike Demma‟s request for
punitive damages pursuant to Code of Civil Procedure section 425.13, subdivision (a).
Under that section, no claim for punitive damages arising out of professional negligence
by a health care provider may be made without an order allowing such a claim to be filed
in an amended pleading. (Code Civ. Proc., § 425.13.) Dominican argued that since

                                             4
Demma‟s complaint sought damages for acts of professional negligence by its staff,
under Code of Civil Procedure section 425.13, subdivision (a), Demma needed leave of
the court to seek punitive damages.
       On April 16, 2012, the trial court held a hearing on the demurrer, noting that
Demma never filed an opposition. Based on the moving papers and the argument of
Dominican‟s counsel, the court sustained the demurrer without leave to amend, entering
judgment in favor of Dominican on April 20, 2012.
       Demma filed a timely notice of appeal on May 16, 2012.
                                 STANDARD OF REVIEW
       “ „On appeal from a judgment dismissing an action after the sustaining of a
demurrer without leave to amend, the standard of review is well settled. The reviewing
court gives the complaint a reasonable interpretation, and treats the demurrer as admitting
all material facts properly pleaded. . . .‟ ” (A.C. Label Co. v. Transamerica Ins. Co.
(1996) 48 Cal.App.4th 1188, 1191.) However, the appellate court does not treat the
demurrer as admitting contentions, deductions, or conclusions of fact or law. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) The appellate court must review the complaint and
decide if there is a reasonable possibility that an amendment may cure the defects. If an
amendment may have cured the complaint, it is an abuse of discretion not to allow leave
to amend and reversal is necessary. (Ibid.) “The plaintiff has the burden of proving that
an amendment would cure the defect.” (Schifando v. City of Los Angeles (2003) 31
Cal.4th 1074, 1081.)
       The determination of which statute of limitations applies to a particular cause of
action is a question of law that we review de novo. (McLeod v. Vista Unified School
Dist. (2008) 158 Cal.App.4th 1156, 1164.)
       We recognize that Demma appears before us in propria persona. However, a self
represented party must be “treated like any other party, and is entitled to the same, but no

                                             5
greater consideration than other litigants and attorneys.” (Barton v. New United Motor
Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Self-represented parties are
subject to the same procedural rules as those who are represented by attorneys. (Bianco
v. California Highway Patrol (1994) 24 Cal.App.4th 1113.)
                                         DISCUSSION
       On appeal, Demma argues that he timely filed his complaint because he alleged a
claim of general negligence, not professional negligence, making Code of Civil
Procedure section 340.5 inapplicable. Demma further contends that he sufficiently stated
causes of action in the original complaint, and that he may seek punitive damages without
prior approval by the court.

   I. No Forfeiture for Failure to Oppose Demurrer or Request Leave to Amend
       Dominican argues that Demma forfeited his claims on appeal when he failed to
object to the demurrer below. We disagree.
       Dominican is correct generally that a party who fails to oppose a motion in the
trial court effectively waives appellate review. (See Bell v. American Title Ins. Co.
(1991) 226 Cal.App.3d 1589, 1602.) Nonetheless, “ „[a] trial court‟s order sustaining a
demurrer without leave to amend is reviewable for abuse of discretion “even though no
request to amend [the] pleading was made.” (Code Civ. Proc. § 472c, subd. (a).)‟ ”
(Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.) Further, “ „[w]hile it
is the plaintiff‟s burden to show “that the trial court abused its discretion” and “show in
what manner he can amend his complaint and how that amendment will change the legal
effect of his pleading” [citation], a plaintiff can make “such a showing . . . for the first
time to the reviewing court.” ‟ ” (Ibid., citing Performance Plastering v. Richmond
American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 667-668.) The fact that
Demma failed to oppose the demurrer is therefore not dispositive of the appeal, as he may



                                               6
still make a showing of how amendments would cure defects in his complaint.4 We will
therefore review his appeal on the merits.
   II. Demma‟s First Cause of Action for Negligence is Barred by the Statute of
           Limitations
       Code of Civil Procedure section 340.5 states: “In an action for injury or death
against a health care provider based upon such person‟s alleged professional negligence,
the time for the commencement of action shall be three years after the date of injury or
one year after the plaintiff discovers, or through the use of reasonable diligence should
have discovered, the injury, whichever occurs first. In no event shall the time for
commencement of legal action exceed three years unless tolled for any of the following:
(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign
body, which has no therapeutic or diagnostic purpose or effect, in the person of the
injured person.” The statute defines “health care provider” to include “any person
licensed or certified pursuant to Division 2 (commencing with Section 500) of the
Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or
the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with
Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health
dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section




       4
         In his reply brief, Demma states that a hearing on his complaint was initially set
for May 29, 2012. Demma claims that somehow, without his knowledge, the date of the
hearing was changed to April 20, 2012, which is why he never opposed the demurrer. A
copy of the demurrer, which was served on Demma by mail on March 6, 2012, indicates
that the demurrer was set to be heard on April 16, 2012. There is no indication that the
date of the hearing was ever changed, or that it was ever set for May 29, 2012. The
hearing in fact took place on April 16, 2012, and the trial court sustained the demurrer the
same day.


                                             7
1200) of the Health and Safety Code.”5 (Code Civ. Proc., § 340.5, subd. (2).) The
section also defines “professional negligence” as “a negligent act or omission to act by a
health care provider in the rendering of professional services, which act or omission is the
proximate cause of a personal injury . . . , provided that such services are within the scope
of services for which the provider is licensed and which are not within any restriction
imposed by the licensing agency or licensed hospital.” (Ibid.)
       Relying on Code of Civil Procedure section 340.5, Dominican argues that the one
year statute of limitations on Demma‟s claims for general negligence had expired when
Demma filed his lawsuit on January 31, 2012, based on injuries alleged to have occurred
in August, October, and December 2010. Demma argues that the statute of limitations
set forth in that section is inapplicable because he alleged a cause of action for general
negligence, not professional negligence, and that accordingly the correct statute of
limitations is found in Code of Civil Procedure section 335.1. Code of Civil Procedure
section 335.1 provides a two-year limitations period for battery, assault, injury, or
wrongful death due to a defendant‟s wrongful act or negligence.
       Whether Demma‟s first cause of action for negligence is time-barred hinges on
whether his complaint alleged professional versus general negligence. Our Supreme
Court has held that general negligence and professional negligence are not separate
causes of action, and that there is only one standard of care for any given set of facts.
(Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998.)
“Since the standard of care remains constant in terms of „ordinary prudence,‟ it is clear

       5
         In his opening brief, Demma asserts his belief that Dominican Hospital is
unlicensed based on his contact with a state licensing entity. By its terms, Code of Civil
Procedure section 340.5 applies only to professional negligence rendered by a licensed
health care provider. This argument references factual matters outside the appellate
record which we do not consider on appeal. (See Cal. Rules of Court, rule
8.204(a)(2)(C); Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.)


                                              8
that denominating a cause of action as one for „professional negligence‟ does not
transmute its underlying character. For substantive purposes, it merely serves to establish
the basis by which „ordinary prudence‟ will be calculated and the defendant‟s conduct
evaluated. Nor does it distinguish a claim separate and independent from some other
form of negligence. As to any given defendant, only one standard of care obtains under a
particular set of facts, even if the plaintiff attempts to articulate multiple or alternate
theories of liability.” (Ibid.)
       Demma‟s first cause of action alleges professional negligence, regardless of how it
may have been labeled in the complaint. In that cause of action, Demma alleges that
Dominican breached its duty of care as a mental health facility by allowing his symptoms
to escalate and by failing to prevent him from battering fellow patients and a security
guard during the three separate incidents described in the complaint.
       Although Demma asserts that no professional negligence can be alleged because
he explicitly excluded physicians from his complaint, this argument misconstrues the
law. The mere absence of a licensed physician among the defendants does not preclude a
claim of professional negligence. Professional negligence involves a breach of a duty
when rendering a professional service, such as medical care, and does not require that a
defendant be a licensed professional. (See, e.g., Bellamy v. Appellate Department (1996)
50 Cal.App.4th 797, 808-809 [finding professional negligence when hospital staff either
failed to set a brake on rolling X-ray table or failed to hold the table in place].)
       Courts have consistently upheld a broad interpretation of what constitutes
“professional negligence,” such that it encompasses not only the actions of a highly
skilled physician, but also the acts of staff members employed by licensed healthcare
providers, so long as the act of negligence occurred in the rendering of healthcare
services for which the provider is licensed. (Palmer v. Superior Court (2002) 103
Cal.App.4th 953, 957 [professional negligence found in negligent recommendation made

                                                9
by company during a utilization review to determine if procedure was medically
necessary for a patient]; Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034,
1051-1052 [professional negligence found when hospital failed to adequately screen
competency of medical staff]; Canister v. Emergency Ambulance Service (2008) 160
Cal.App.4th 388, 406-407 [professional negligence found in negligent driving of an
ambulance by an emergency medical technician].)
       Accordingly, as a licensed psychiatric hospital, Dominican‟s failure to intervene
when Demma had outbursts of violence toward fellow patients and a security guard, and
its failure to ensure that Demma‟s symptoms were properly in check, were all omissions
in the provision of professional psychiatric services. Omissions committed by hospital
staff in rendering professional services arise out of professional negligence and are
accordingly subject to the statute of limitations provided in Code of Civil Procedure
section 340.5.
       A related issue is when the one-year limitations period commenced. The
complaint alleged that Demma was injured due to Dominican‟s negligence on December
17, 2010, when he was arrested for striking a security guard and taken to county jail,
where he was placed in a position of “grave danger.” However, according to Demma‟s
complaint, he also suffered harm from Dominican‟s negligence when the other incidents
of battery occurred in August 2010 and October 2010. Accordingly, all of his injuries
appear to have occurred in 2010.
       The complaint is thus untimely, as Demma filed his complaint on January 31,
2012, beyond the applicable one-year statute of limitations. Nowhere in the complaint
does he allege any fraud or intentional concealment, which would toll the statute. (Code
Civ. Proc., § 340.5.) Further, Demma does not identify any amendment that would cure
the defect, which is his burden. (Schifando v. City of Los Angeles, supra, 31 Cal.4th
1074, 1081.)

                                            10
       We therefore find no error in the trial court‟s order sustaining the demurrer
without leave to amend as to the negligence cause of action.
   III.    Demma‟s Causes of Action for “Intentional Torts” Fail to State a Claim
       We now turn to Demma‟s causes of action for “intentional torts.” Dominican
argues that the complaint fails to state a claim with regard to both of the intentional torts
alleged. For the reasons set forth below, we find that Demma has failed to state facts
sufficient to sustain a cause of action for either of the intentional torts identified.
       The March 2010 Intentional Tort
       The first intentional tort alleged by Demma arose in connection with a 2010
battery at the hospital, (one of the incidents alleged to support his negligence claim).
Demma stated in his complaint that after he struck an individual at the hospital, he was
charged with misdemeanor battery and was cited to appear in court. Shortly thereafter, a
hospital social worker informed him and his mother that the charges had been dropped.
Demma, believing that the charges were no longer pending, did not attend the scheduled
court date, and he was later arrested in March 2011 for failing to appear and spent six
days in jail. In connection with that criminal matter, Demma was referred to Atascadero
State Hospital for two months for restoration of trial competency. Demma alleged that he
lost disability income during that two-month period.
       Even assuming the truth of all material facts alleged by Demma, we do not see
how these facts constitute an intentional tort cause of action.
       Inasmuch as Demma sought to make a claim of fraud, the complaint would fail for
lack of sufficient particularity and specificity required of a fraud cause of action. (See,
e.g., Cooper v. Equity Gen. Insurance (1990) 219 Cal.App.3d 1252, 1262.) To state a
viable claim of intentional misrepresentation, Demma must have pled facts to show: (1)
there was a false representation as to a material fact, (2) Dominican knew of the falsity,
(3) Dominican intended to deceive him, (4) Demma justifiably relied on the

                                               11
misrepresentation, and (5) there were damages. (See Civ. Code, § 1710, subd. 1;
Gonsalves v. Hodgson (1951) 38 Cal.2d 91, 100-101.) Demma failed to plead facts
satisfying all of those elements, as he does not allege that the hospital social worker
deliberately and knowingly intended to deceive him about the court date.
       Demma also failed sufficiently to plead a cause of action for fraudulent
concealment. (Civ. Code, § 1710, subd. 3.) Fraudulent concealment occurs when a fact
is suppressed by someone who has a duty to disclose it. Demma never alleged in his
complaint that Dominican possessed a duty to inform him of his court date, and we
cannot see how such a duty can be imputed to a hospital.
       The August 2011 Intentional Tort
       The second intentional tort was alleged to have occurred sometime in August
2011. Demma alleged that Dominican slandered him to other medical institutions and as
a result, those institutions refused to admit him. Demma further accused Dominican of
deliberately denying him admission to its Behavioral Health Unit and of denying him an
evaluation by a psychiatrist when he was in the emergency room.
       Slander is an oral, intentional publication of a false fact that causes injury or
damage. (Civ. Code, § 46; Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1130.) By
the very nature of a claim of slander, the published fact that causes injury must be false.
Demma‟s claim of slander must therefore fail, as he asserted that Dominican slandered
him by telling other institutions of his past incidents of violence at the hospital. Even if
Dominican did publish those statements to other mental health institutions, the
publication was not of a false fact, but the truth. Demma himself plainly stated in his
complaint that he battered fellow patients and a security guard.
       As for Demma‟s additional claim that Dominican refused him admission to the
Behavioral Health Unit and an evaluation by a psychiatrist after he was brought in on a
Welfare and Institutions Code section 5150 mental health hold, we find that he has not

                                              12
sufficiently stated a cause of action. Demma argues that Dominican violated Welfare and
Institutions Code section 5150.1, which provides that “[n]o peace officer seeking to
transport, or having transported, a person to a designated facility for assessment under
Section 5150, shall be instructed by mental health personnel to take the person to, or keep
the person at, a jail solely because of the unavailability of an acute bed, nor shall the
peace officer be forbidden to transport the person directly to the designated facility. No
mental health employee from any county, state, city, or any private agency providing
Short-Doyle psychiatric emergency services shall interfere with a peace officer
performing duties under Section 5150 by preventing the peace officer from entering a
designated facility with the person to be assessed, nor shall any employee of such an
agency require the peace officer to remove the person without assessment as a condition
of allowing the peace officer to depart.”
       Neither Dominican‟s refusal to admit Demma to its Behavioral Health Unit nor his
transportation to county jail describes a violation of Welfare and Institutions Code section
5150.1 or section 5150. Welfare and Institutions Code section 5150.1 addresses the
procedure a peace officer must take when transporting an individual to a facility. The
statute specifies that the facility may not instruct the peace officer to take the individual
to county jail solely because of a lack of beds, and that the peace officer may not be
forbidden to take the individual directly to the facility or be prevented from taking the
individual to the facility.
       Contrary to Demma‟s complaint, the notes of Dr. Andrew Nevitt, the emergency
room doctor who evaluated Demma, indicate that hospital staff did not prohibit deputies
from bringing Demma into the facility.6 When reviewing a demurrer, the “allegations [of
a complaint] must be accepted as true,” however, the “facts appearing in exhibits attached
       6
        The emergency room physician‟s notes of Demma‟s visit in August 2011 were
attached as exhibit H to the complaint.


                                              13
to the complaint will also be accepted as true and, if contrary to the allegations in the
pleading, will be given precedence.” (Dodd v. Citizens Bank of Costa Mesa (1990) 222
Cal.App.3d 1624, 1626-1627.) According to Dr. Nevitt‟s notes, Demma was held in his
own room in the emergency department of the hospital in four-point restraints due to his
risk of violence. Dr. Nevitt indicated that he had a conversation with another physician,
who informed him that the hospital was considering having Demma transported to jail for
evaluation because no other facility would accept him due to his violent history. Dr.
Nevitt prescribed medication for Demma, and a sheriff‟s deputy later arrived to take
Demma to jail. Dr. Nevitt informed the psychiatrist on duty at Dominican‟s mental
health unit about the deputy‟s plan to take Demma to jail, and the psychiatrist accepted
responsibility for Demma‟s overall psychiatric condition and advised Dr. Nevitt that
Demma would be “adequately evaluated in the jail.”
       Inasmuch as Demma claims Dominican committed a tort by refusing to admit him,
the Welfare and Institutions Code makes clear that a facility need not admit all
individuals placed under Welfare and Institutions Code section 5150 holds. Welfare and
Institutions Code section 5150.3 reads, “[w]henever any person presented for evaluation
at a facility designated under Section 5150 is found to be in need of mental health
services, but is not admitted to the facility, all available alternative services provided for
pursuant to Section 5151 shall be offered as determined by the county mental health
director.” (Italics added.) Further, Welfare and Institutions Code section 5150.1
prohibits health facilities from refusing to admit patients solely because of a lack of beds.
Here, it is clear from Demma‟s complaint that Dominican‟s reluctance to admit him arose
from previous incidents of violence at the facility.
       Accordingly, Demma failed to state a cause of action for intentional tort with
regard to this second incident. Judging from the relatively confusing narrative of the
complaint, it is unclear whether Demma could amend his complaint to allege a cause of

                                              14
action for either of the two intentional tort claims. However, the burden rests with
Demma to prove that an amendment would cure the defects identified. (Schifando v. City
of Los Angeles, supra, 31 Cal.4th 1074, 1081.) Demma fails to suggest any such
amendment. His argument on appeal is simply that the original complaint is sufficient to
state a cause of action. That is simply not the case here.
       We therefore find that Demma failed to state a cause of action with regard to
either of the two alleged “intentional torts,” and further failed to show that amendments
would cure the defects in his complaint. Since we also find that Demma‟s claim of
professional negligence is barred by the statute of limitations set forth in Code of Civil
Procedure section 340.5, the issue of whether Demma was allowed to seek punitive
damages without prior approval from the trial court is moot.
                                       DISPOSITION
       We find no abuse of discretion by the trial court in sustaining Dominican‟s
demurrer without leave to amend. The judgment of dismissal is affirmed. Each party
shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)



                                           Grover, J.




WE CONCUR:



Premo, Acting P.J.



Bamattre-Manoukian, J.


                                             15
