Filed 11/18/21 Novoa v. Sespe Medical CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

HIDANIA NOVOA,

 Plaintiff and Appellant,

v.

SESPE MEDICAL, INC. et al.,

 Defendants and Respondents.

2d Civ. No. B310302

(Super. Ct. No. 56-2019-00537320-

CV-FR-VTA

(Ventura County)

Hidania Novoa appeals a judgment entered on the 

pleadings in favor of Sespe Medical, Inc., Bautista Medical Group

Southern California, Inc., and Jorge Bautista.1 We conclude that 

the one-year limitations period of Code of Civil Procedure section 

340.5 bars Novoa’s causes of action for intentional 

misrepresentation and concealment, and affirm.2 

1 We refer to defendants collectively as “Sespe” except 

where clarity demands that we draw a distinction.

2 All statutory references are to the Code of Civil 

Procedure.
2

This appeal concerns Novoa’s claims against Sespe arising 

during the course of her medical treatment following her 

pregnancy. Novoa alleges that Sespe mishandled her 

employment disability forms, causing her employer to dismiss 

her. Specifically, she alleges that Jorge Bautista misrepresented 

to her that he was a licensed physician instead of a physician’s 

assistant. Among other defenses, Sespe responds that Novoa’s 

claims arise from the rendering of medical professional services 

to which the one-year limitations period of section 340.5 applies. 

The trial court agreed and granted Sespe’s motion for judgment 

on the pleadings. 

FACTUAL AND PROCEDURAL HISTORY

On December 13, 2019, Novoa filed a complaint for 

intentional misrepresentation and concealment against Sespe. 

She alleges that in 2017 she was on a pregnancy leave of absence 

and was treated by Bautista, who represented himself as a 

licensed physician. Novoa’s employer, the City of Oxnard, 

requested written information from Bautista regarding Novoa’s 

disability. Bautista did not respond timely and eventually 

provided incomplete information. He instructed Novoa to

complete the information on the disability form, which she 

eventually did. Novoa alleges that her employer then dismissed 

her from employment for altering the disability form. Bautista 

later sent a detailed letter to the employer to clarify the

misunderstanding. It was through this January 2, 2018, detailed 

letter that Novoa learned that Bautista was not a licensed 

physician, but rather a physician’s assistant. 

Sespe filed a motion for judgment on the pleadings, 

asserting that section 340.5 barred Novoa’s lawsuit. The trial 

court agreed and granted the motion without leave to amend. In 
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its written ruling, the court stated: “[Novoa’s] cause of action for 

fraud . . . is directly related to the manner in which defendants 

provided professional services. The claim emanates from the 

manner in which defendants performed and communicated the 

results of medical tests, a matter that is an ordinary and usual 

part of medical professional services.”

Novoa appeals and contends that the trial court erred by 

applying the one-year limitations period of section 340.5 to her

claims.

DISCUSSION

Novoa argues that her allegations of fraud against Sespe do 

not concern and are extrinsic to her medical treatment. She 

relies upon Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 

321 [fraud and other intentional torts action against physicianshareholder of medical device] and Unruh-Haxton v. Regents of 

University of California (2008) 162 Cal.App.4th 343, 351

[physicians sold patients’ eggs and pre-embryos for personal 

financial gain].

A motion for judgment on the pleadings is similar to a 

general demurrer and attacks those defects disclosed on the face 

of the pleadings. (Julian Volunteer Fire Co. Assn. v. JulianCuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 598.) 

We assume the truth of properly alleged facts and then

determine whether the complaint states a cause of action. 

(National Shooting Sports Foundation, Inc. v. State of California

(2018) 5 Cal.5th 428, 432; Julian, at p. 598.) We independently 

review the trial court’s ruling. (Julian, at p. 598.) 

Section 340.5 establishes a one-year limitations period for 

any action for injury or death against a health care provider 

based upon such person’s alleged professional negligence. The 
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one-year period runs from the date “the plaintiff discovers, or 

through the use of reasonable diligence should have discovered, 

the injury.” (Ibid.) “Professional negligence” is “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 or wrongful death.” (Id., subd. (2); 

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

Additional causes of action frequently arise from the same 

facts as a medical malpractice cause of action. (Smith v. Ben 

Bennett, Inc., supra, 133 Cal.App.4th 1507, 1514.) These causes 

of action include battery, fraud, breach of contract, and 

intentional infliction of emotional distress, among others. (Ibid.; 

Tell v. Taylor (1961) 191 Cal.App.2d 266, 271 [fraud allegations 

against physician treated as malpractice action].) Thus, when a 

plaintiff asserts a claim against a health care provider on a legal 

theory other than professional negligence, the court must 

determine whether the claim is nevertheless based upon the 

health care provider’s professional negligence. (Smith, at 

p. 1514.) In making this determination, the court focuses upon 

the nature of the claim, not the label or form of action selected by 

the plaintiff. (Larson v. UHS of Rancho Springs, Inc. (2014) 230 

Cal.App.4th 336, 352 [allegations that physician battered 

plaintiff patient subject to limitations period for professional 

negligence]; Davis v. Superior Court (1994) 27 Cal.App.4th 623, 

627 [allegations that defendant physicians falsified medical 

findings subject to limitations period for professional 

negligence].) 

Moreover, a medical professional may commit a negligent 

act in rendering medical care, thereby causing injury, even if no 

medical skills were required to complete the task. (Flores v. 
5

Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 86

[failure to raise patient’s bedrail].) The test is not whether the 

treatment called for a high or a low level of skill or whether a 

high or low level of skill was employed. (Ibid.)

Here Novoa’s fraud claims emanate from the manner in 

which Bautista performed and communicated the results of 

medical tests and professional evaluation, a matter that is an 

ordinary and usual part of medical professional services. 

(Central Pathology Service Medical Clinic, Inc. v. Superior Court

(1992) 3 Cal.4th 181, 192-193 (Central Pathology) [plaintiff’s 

claims of fraud by laboratory and physician arose from manner in 

which professional medical services provided].) Novoa’s efforts to 

remove her claims from the one-year limitations period of section 

340.5 by labeling the claims as fraud are to no avail. (Central 

Pathology, at pp. 192-193.) Our analysis of the allegations of 

Novoa’s complaint persuades us that the nature and cause of her 

injury directly relate to the manner in which professional medical 

services were provided. Moreover, Novoa alleges that she was 

aware of the allegations giving rise to her claims no later than 

January 23, 2018, almost two years before she filed her 

complaint. She does not suggest how she can cure the defect of 

the limitations period by amending her complaint.

Novoa’s reliance on Bigler-Engler v. Breg, Inc., supra, 7 

Cal.App.5th 276, 321, and Unruh-Haxton v. Regents of University 

of California, supra, 162 Cal.App.4th 343, 352, does not assist her 

argument. In Bigler-Engler, the physician realized financial gain 

from the sale and rental of a medical device he prescribed to the 

patient. He did not inform the patient of his financial interest in 

the device, a collateral course of conduct to his provision of 

professional medical services. In Unruh-Haxton, patients 
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undergoing fertility treatments filed intentional tort actions 

against physicians and a fertility clinic alleging that patients’ 

eggs and pre-embryos were sold by defendants for financial gain. 

The lawsuit concerned “the intentional and malicious quest to 

steal genetic material.” (Id., at p. 356.) Here Sespe’s inaccuracy 

and tardiness in completing a disability form relate to a matter 

that is a usual and ordinary part of professional medical services.

DISPOSITION

The judgment is affirmed. Respondents are to recover 

costs.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
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Benjamin F. Coates, Judge

Superior Court County of Ventura

______________________________

Rodney T. Lewin and Randall A. Spencer for Plaintiff and 

Appellant.

Heller & Edwards and Mark L. Edwards for Defendants 

and Respondents.