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Filed 8/29/22; Certified for Publication 9/20/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHARLOTTE KERNAN,

Plaintiff and Appellant,

v.

THE REGENTS OF THE 

UNIVERSITY OF 

CALIFORNIA,

Defendant and 

Respondent.

 A162750

(San Francisco City & 

County Super. Ct. No. 

CGC-18-564062)

Plaintiff Charlotte Kernan sued defendant Regents of the 

University of California for medical malpractice after she 

delivered a stillborn baby at Zuckerberg San Francisco General 

Hospital (the hospital).1 She appeals from the judgment after the 

trial court granted summary judgment to defendant on the basis 

that her action was time-barred under the one-year statute of 

limitations set forth in Code of Civil Procedure section 340.5.2 

1 Zuckerberg San Francisco General Hospital is a partner 

with the University of California San Francisco, which is itself 

part of the Regents of the University of California.

2 Subsequent statutory references are to the Code of Civil 

Procedure unless otherwise specified. 
2

Plaintiff argues (1) that there are triable issues of fact as to 

whether her action is time-barred, and (2) that there is disputed 

evidence as to the date of her fetus’s death, such that a 

reasonable juror could find her claim timely. We agree with her 

first argument and therefore need not reach the second. We shall 

reverse. 

BACKGROUND

Factual Background

On November 4, 2016, plaintiff was 39 weeks pregnant 

when she went to the hospital for an External Cephalic Version 

(ECV), a procedure to rotate her healthy fetus from a breech 

position to a head-first position. Doctors recorded the ECV as 

successful and monitored the fetal heartbeat for 40 minutes 

following the procedure. There was no indication of any problem 

and the post-procedure fetal monitoring was considered 

“reassuring.” Later that night, following her discharge from the 

hospital, plaintiff could not detect any fetal movement. 

The next day, November 5, 2016, plaintiff returned to the 

hospital because she continued not to detect any fetal movement. 

Upon performing an ultrasound, doctors informed plaintiff that 

there was no fetal heartbeat and that she had suffered an 

intrauterine fetal demise (IUFD). The doctors told plaintiff and 

noted in the medical records that they could not determine the 

etiology of the fetal death. They also noted in plaintiff’s records 

that nothing in the literature indicated an association between 

ECV procedures and fetal demise. 
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The doctors induced labor on November 5, 2016, and after 

30 hours of labor, plaintiff delivered a stillborn baby on 

November 7, 2016. The delivery doctor, Dr. Juan Vargas, told 

plaintiff that upon initial inspection, the baby, placenta, and cord 

all appeared healthy and he could not see any indicators as to 

why plaintiff’s baby died. 

According to the hospital records, on November 5, 2016, 

plaintiff debated whether to have an autopsy performed because 

of concern that it would delay her child’s Muslim burial service. 

Plaintiff denies discussing an autopsy that day, but in any event, 

her doctors explained that autopsies are often unsuccessful in 

elucidating the underlying cause of an IUFD, although they may 

provide families with peace of mind. At some point, plaintiff 

decided to order an autopsy, and she worked with the hospital to

find a mortuary that would accommodate her needs. 

Dr. Vargas offered to discuss the autopsy report with 

plaintiff after it was completed. After some months of delay due 

to Dr. Vargas not responding to plaintiff’s requests to review the 

autopsy report with her, plaintiff met with a different doctor, Dr. 

Kerns, on July 10, 2017, to review the baby’s autopsy results. 

During that meeting, plaintiff learned that various doctors had 

reviewed and discussed her case during a morbidity and 

mortality conference at the hospital, but Dr. Kerns refused to 

answer plaintiff’s questions about what had been said during the 

conference.3 According to plaintiff, she first became subjectively 

3 Plaintiff understood that the hospital held morbidity and 

mortality conferences when an unusual death occurred. 
4

suspicious that medical negligence had caused her baby’s death

during her July 10, 2017, meeting with Dr. Kerns. 

Procedural Background

On November 6, 2017, plaintiff served notice of her 

intention to commence an action against defendant pursuant to 

section 364. Within 90 days, on February 2, 2018, she filed her 

complaint alleging that defendant’s medical negligence caused 

her fetal demise. 

Defendant moved for summary judgment, arguing that the 

action was time-barred under section 340.5’s one-year statute of 

limitations because the limitations period commenced on 

November 5, 2016 when plaintiff was informed of the IUFD, 

inquired into the etiology of the fetal death, and requested an 

autopsy. The trial court granted defendant’s summary judgment 

motion on the basis that plaintiff was on inquiry notice as a 

matter of law when she learned of the fetal death on November 5, 

2016, one day after the ECV procedure.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate “if all the papers 

submitted show that there is no triable issue as to any material 

fact and that the moving party is entitled to judgment as a 

matter of law.” (§ 437c, subd. (c).) A party meets “his or her 

burden of showing that a cause of action has no merit if the party 

has shown . . . that there is a complete defense to the cause of 

action.” (§ 437c, subd. (p)(2).) If defendant meets its initial 

burden, the burden shifts to plaintiff to show “that a triable issue 
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of one or more material facts exists as to the cause of action or a 

defense thereto.” (§ 437c, subd. (p)(2).) “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 v. Atlantic Richfield Co. (2001) 

25 Cal.4th 826, 850.)

We review an order granting summary judgment de novo, 

considering the admissible evidence set forth in the moving and 

opposing papers. (Wilson v. 21st Century Ins. Co. (2007) 

42 Cal.4th 713, 717.) “We liberally construe the evidence in 

support of the party opposing summary judgment and resolve 

doubts concerning the evidence in favor of that party.” (Ibid.)

II. Statute of Limitations – Governing Legal Principles

Statutes of limitations “protect defendants from the stale 

claims of dilatory plaintiffs” by “ ‘prescrib[ing] the periods beyond 

which’ a plaintiff may not bring a cause of action.” (Norgart v. 

Upjohn Co. (1999) 21 Cal.4th 383, 395.) “The statute of 

limitations operates in an action as an affirmative defense.” (Id. 

at p. 396.)

Plaintiff’s claim for medical negligence is governed by 

section 340.5, which 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 after the plaintiff discovers, or through the use 

of reasonable diligence should have discovered, the injury, 
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whichever occurs first.” (§ 340.5, italics added.) “[T]he term 

‘injury,’ as used in section 340.5, means both ‘a person’s physical 

condition and its “negligent cause.” ’ ” (Gutierrez v. Mofid (1985) 

39 Cal.3d 892, 896.) 

“The delayed discovery rule has been applied in ‘cases 

where it is manifestly unjust to deprive plaintiffs of a cause of 

action before they are aware that they have been injured.’ 

[Citation.] The rule protects a plaintiff who is ‘ “blamelessly 

ignorant” ’ of his cause of action.” (Brisbane Lodging, L.P. v. 

Webcor Builders, Inc. (2013) 216 Cal.App.4th 1249, 1257.) 

“Under the discovery rule, the statute of limitations begins to run 

when the plaintiff suspects or should suspect that her injury was 

caused by wrongdoing.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 

1103, 1110, italics added (Jolly); Knowles v. Superior Court

(2004) 118 Cal.App.4th 1290, 1298–1299 [“Jolly’s discussion of 

the discovery rule applies to actions involving section 340.5”].) “If 

the plaintiff has notice or information of circumstances that 

would put a reasonable person on inquiry notice, the limitation 

period is activated.” (Brewer v. Remington (2020) 46 Cal.App.5th 

14, 24.) 

The discovery rule thus “sets forth two alternate tests for 

triggering the limitations period: (1) a subjective test requiring 

actual suspicion by the plaintiff that the injury was caused by 

wrongdoing; and (2) an objective test requiring a showing that a 

reasonable person would have suspected the injury was caused by 

wrongdoing. [Citation.] The first to occur under these two tests 
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begins the limitations period.” (Kitzig v. Nordquist (2000) 

81 Cal.App.4th 1384, 1391.) 

Section 364 is also pertinent here. That statute, which 

requires notice of intention to commence a medical negligence 

action, provides: “If the notice is served within 90 days of the 

expiration of the applicable statute of limitations, the time for the 

commencement of the action shall be extended 90 days from the 

service of the notice.” (§ 364, subds. (a), (d).) Plaintiff served her

notice of intent to sue on November 6, 2017, and filed her 

complaint within 90 days from that date; the parties therefore 

agree that her action was timely under sections 364 and 340.5 if 

the limitations period commenced on or after November 6, 2016. 

Plaintiff’s action was untimely and defendant was entitled to 

summary judgment if, as the trial court found, the limitations 

period commenced as a matter of law on November 5, 2016—the 

date plaintiff learned of the fetal death. 

III. Analysis

On this record and under the legal principles set forth 

above, there is a triable issue of fact regarding the triggering of 

the limitations period. We examine the subjective and objective 

prongs of section 340.5’s discovery rule in turn. (Kitzig v. 

Nordquist, supra, 81 Cal.App.4th at p. 1391 [subjective and 

objective tests for triggering limitations period under section 

340.5].)

A. Subjective Prong of Section 340.5

Plaintiff states that she first suspected defendant’s 

wrongdoing when she met with Dr. Kerns on July 10, 2017. 
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Defendant argues, however, that plaintiff subjectively suspected 

medical negligence on November 5, 2016, because she ordered an 

autopsy that day. We are unpersuaded by defendant’s 

contention. 

First, contrary to defendant’s argument below and on 

appeal, the hospital records do not establish that plaintiff ordered 

an autopsy on November 5, 2016, the day she learned of the 

IUFD. The medical notes state that although plaintiff was 

“intersted [sic] in an autopsy and any additional blood tests that 

might elucide [sic] the underlying cause” of the fetal death, 

plaintiff was still undecided about whether to order an autopsy as 

of 10:41 p.m. on November 5, 2016. 

Second, in her supplemental declaration in opposition to 

defendant’s motion for summary judgment, plaintiff denied even 

discussing an autopsy on November 5, 2016, let alone requesting 

one.4 Plaintiff stated that on the day she learned of her baby’s 

4 Defendant asserts that plaintiff’s supplemental 

declaration was untimely filed and therefore procedurally 

prohibited. Defendant waived this objection, however, by not 

raising it at the summary judgment hearings below. (§ 437c, 

subd. (b)(5).) In any event, the trial court did not abuse its 

discretion by accepting plaintiff’s supplemental declaration 

because defendant suffered no prejudice from the admission of 

this evidence. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 

755, 765 [trial court may permit late papers in the interests of 

justice].) In her opposition to defendant’s motion for summary 

judgment, plaintiff argued that she did not suspect medical 

negligence until July 10, 2017. Defendant addressed this 

argument in its reply to plaintiff’s opposition brief, but asserted

that plaintiff cited no evidence in support of her argument. 

Plaintiff’s supplemental declaration simply provided evidentiary 
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death, she was in no shape to talk to anyone about anything, nor 

was she thinking far enough ahead to order an autopsy. Whether 

plaintiff in fact ordered an autopsy on November 5, 2016, was 

therefore very much in dispute. 

Moreover, on November 5, 2016, doctors informed plaintiff 

that the cause of her IUFD was unknown, and that they would 

“provide an array of tests in the hopes of finding an etiology.” Dr. 

Vargas similarly told plaintiff on the day she delivered the 

stillborn that although an autopsy might not elucidate an 

etiology for the IUFD, it could provide “piece [sic] of mind.” Thus, 

even assuming plaintiff requested an autopsy on November 5, 

2016, a reasonable trier of fact could conclude that plaintiff did so 

to learn information about the reason for her baby’s death and to 

seek closure, not because she subjectively suspected defendant’s 

wrongdoing. 

In addition, after plaintiff learned of the fetal death on 

November 5, 2016, she remained under her doctors’ care and 

delivered the stillborn baby at the hospital on November 7, 2016. 

She also continued to work with the hospital to obtain the 

autopsy and the autopsy review. A reasonable trier of fact could 

infer from these actions that plaintiff continued to trust the 

hospital even after learning of the IUFD, undermining 

defendant’s contention that plaintiff subjectively suspected 

defendant’s negligent performance of the ECV procedure on the 

day she learned her baby had died. 

support for the argument defendant had already addressed in its 

reply. 
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Accordingly, defendant fails to establish that the one-year 

statute of limitations was triggered by plaintiff’s actual, 

subjective suspicion of wrongdoing on November 5, 2016. 

(Graham v. Hansen (1982) 128 Cal.App.3d 965, 972-973 [“If 

plaintiff believes because of injuries she has suffered that 

someone has done something wrong,” she is on actual notice, and 

the statutory period begins]; Dolan v. Borelli (1993) 13 

Cal.App.4th 816, 820, 823 [one-year statute of limitations began 

running when plaintiff believed something had gone wrong and 

doctor had performed her surgery improperly].)

B. Objective Prong of section 340.5

Defendant also contends that plaintiff’s action is timebarred under the objective test because the only reasonable 

inference from the facts is that plaintiff should have suspected on 

November 5, 2016, that the IUFD was caused by defendant’s 

wrongdoing. We disagree. 

The ECV was performed on the morning of November 4, 

2016 . It was considered uncomplicated and successful. Doctors 

monitored a “reassuring” fetal heartbeat for 40 minutes after the 

procedure. 

After not feeling fetal movement beginning on the night of 

November 4, 2016, plaintiff returned to the hospital on November 

5, 2016 and was told that she had suffered an IUFD with an 

unknown cause. 

As of November 6, 2016, the etiology of the fetal demise 

remained unclear . The medical records on that date state that 

“ECV is not shown in literature to be assoc[iated] with fetal 
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demise.” On November 7, 2016, the day plaintiff delivered the 

baby, Dr. Vargas told her that the stillborn baby, placenta, and 

cord all looked healthy, and he did not see any indication as to 

why the baby had died. The autopsy report, dated November 8, 

2016, found no specific cause for the fetal demise and noted that 

“[i]n many cases, it is difficult to be certain of the etiology of 

stillbirth.” 

“[P]laintiffs 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.” (Fox v. Ethicon Endo-Surgery, 

Inc. (2005) 35 Cal.4th 797, 808.) However, “ ‘[t]he mere fact that 

[a medical] operation does not produce hoped-for results does not 

signify negligence and will not cause commencement of the 

statutory period.’ ” (Kitzig v. Nordquist, supra, 81 Cal.App.4th at 

p. 1392.) Rather, “[w]hen there has been a belated discovery of 

the cause of action, the issue whether the plaintiff exercised 

reasonable diligence is a question of fact for the court or jury to 

decide. The drastic remedy of summary judgment may not be 

granted unless reasonable minds can draw only one conclusion 

from the evidence.” (Enfield v. Hunt (1979) 91 Cal.App.3d 417, 

419–420.) 

The hospital’s records demonstrate that reasonable minds 

could differ as to whether plaintiff should have suspected 

negligent performance of the ECV on November 5, 2016, the day 

she learned she had suffered an IUFD. The November 4, 2016 

ECV initially appeared uncomplicated and successful. On 
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November 5, 2016, plaintiff’s doctors did not know the cause of 

the IUFD, and as of November 6, 2016, they remained unaware 

of any association between ECV procedures and fetal demise. 

Given that medical professionals did not suspect wrongdoing, and 

given that defendant’s autopsy report corroborates plaintiff’s 

understanding that fetuses sometimes die in utero for unknown 

reasons, we cannot say that reasonable minds could draw only 

one conclusion—that plaintiff should have suspected defendant’s 

wrongdoing on November 5, 2016. 

In sum, defendant’s evidence does not establish as a matter 

of law that the limitations period commenced on November 5, 

2016.

DISPOSITION

We reverse the grant of summary judgment on statute of 

limitations grounds. Plaintiff shall recover her costs on appeal. 

BROWN, J.

WE CONCUR:

POLLAK, P. J.

GOLDMAN, J.

Kernan v. Regents of the University of California (A162750)
Filed 9/20/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHARLOTTE KERNAN,

Plaintiff and Appellant,

v.

THE REGENTS OF THE 

UNIVERSITY OF 

CALIFORNIA,

Defendant and 

Respondent.

 A162750

(San Francisco City & 

County Super. Ct. No. 

CGC-18-564062)

THE COURT:

The opinion in the above-entitled matter filed on August 

29, 2022, was not certified for publication in the Official Reports. 

For good cause it now appears that the opinion should be 

published in the Official Reports and it is so ordered.

Date: September 20, 2022 POLLAK, P. J.
Trial Court: San Francisco City & County Superior Court

Trial Judge: Hon. Ethan P. Schulman

Counsel: Bravo Law Offices, Joseph K. Bravo for 

Plaintiff and Appellant.

Cole Pedroza LLP, Kenneth R. Pedroza, 

Cassidy Davenport; Craddick, Candland & 

Conti, Ann H. Larson for Defendant and 

Respondent.