Filed 9/2/21 Wable v. Ciresi CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MARCIA WABLE et al.,

Plaintiffs and Appellants,

v.

KEVIN F. CIRESI, M.D. et al.,

Defendants and Respondents.

F079286

(Super. Ct. No. 16CECG03783)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T. 

McGuire, Judge.

Stuart R. Chandler for Plaintiffs and Appellants. 

Sheuerman, Martini, Tabari, Zenere & Garvin, James J. Zenere and Adam M. 

Stoddard, for Defendants and Respondents Kevin F. Ciresi, M.D., and Kevin F. Ciresi, 

M.D., Inc.

Low McKinley Baleria & Salenko, Nicholas J. Leonard, for Defendants and 

Respondents Athenix Physicians Group, Inc. 

-ooOoo-
2.

This case involves a single issue, that is, whether a first amended complaint filed 

by plaintiffs related back to the factual allegations in the initial complaint. The relationback doctrine deems a later-filed amended complaint to have been filed at the time of an 

earlier complaint, which had met the applicable limitations period, thereby avoiding a 

statute of limitations bar. Here, the trial court found the first amended complaint did not 

relate back to the initial complaint and, in turn, that the action was barred by the 

applicable statute of limitations. We agree with the trial court’s analysis and affirm.

FACTS AND PROCEDURAL BACKGROUND

This case was initiated, in the Fresno County Superior Court, as a medical 

malpractice and loss of consortium action by a married couple, Marcia and George Wable 

(the Wables), against Dr. Kevin Ciresi (along with Kevin F. Ciresi, M.D., Inc.)1 and 

Athenix Physicians Group, Inc. (dba Athenix Body Sculpting Institute).2 

The Wables commenced the matter by serving, on August 26, 2016, a notice of 

intent pursuant to Code of Civil Procedure section 364 (subsequent statutory references 

are to the Code of Civil Procedure) on defendants. Section 364 provides, in relevant part: 

“No action based on [a] health care provider’s professional negligence may be 

commenced unless the defendant has been given at least 90 days’ prior notice of the 

intention to commence the action.” (§ 364, subd. (a).) Section 364 defines 

“ ‘professional negligence,’ ” in pertinent part, as “[a] negligent act or [an] 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, provided that 

such services are within the scope of services for which the provider is licensed.” (§ 364, 

subd. (f)(2).)

1 We will refer to the Ciresi defendants hereafter at Ciresi. 

2 We will refer to the Athenix defendants hereafter as Athenix. 
3.

Thereafter, on November 22, 2016, the Wables filed their initial complaint against 

Ciresi and Athenix. The complaint provided background facts. Marcia Wable had 

undergone a “tummy tuck” procedure performed by Dr. Ciresi, on August 27, 2015, at 

Athenix Body Sculpting Institute. Dr. Ciresi also provided post-operative care to Marcia 

Wable at the Athenix facility. Athenix Body Sculpting Institute either employed or 

contracted with Dr. Ciresi to provide medical services at the Athenix facility. The 

complaint further indicated that the claims therein were medical malpractice/personal 

injury claims based on a negligence theory, for economic damages and general damages, 

including emotional distress and loss of consortium damages. 

As for specific factual allegations, the complaint alleged that Ciresi and Athenix 

were “healthcare providers” who “provided medical care to Plaintiff, Marcia Wable[,] on 

or about August 27, 2015[,] and thereafter.” In addition, the complaint alleged that on 

August 27, 2015, Marcia Wable “presented for a tummy tuck procedure” at the Athenix 

facility and “was provided negligent medical care on that date and succeeding dates by 

Defendants ... who failed to properly/timely diagnose and treat [her].” The complaint 

further alleged: “As a result of the gross negligence of Defendants ... Marcia Wable 

presented to the emergency room at Clovis Community Hospital for treatment for 

complications related to the tummy tuck, including a severe infection.” 

Regarding damages, the complaint alleged that “Marcia Wable has suffered and 

will suffer damages for personal injuries caused by the medical malpractice herein which 

include, but are not limited to[,] past and future medical expenses, loss of income, 

diminution of earning capacity, and other economic damages.” The complaint added: 

“Marcia Wable also sustained past and future non-economic damages, which include 

physical pain, mental suffering, loss of enjoyment of life, physical impairment, 

inconvenience, disfigurement, grief, anxiety, humiliation and emotional distress as a 

result of her own injuries suffered because of the medical malpractice alleged herein.” 
4.

Finally, the complaint alleged that George Wable “has and will suffer loss of consortium 

damages as a result of defendants’ negligence.” 

Well over a year after the complaint was filed, after discovery was conducted, the 

Ciresi and Athenix defendants filed, on August 8, 2018, their respective motions for 

summary judgment. The motions were heard on October 25, 2018. In an order after 

hearing dated November 2, 2018, the trial court granted Ciresi’s motion for summary 

judgment but denied Athenix’s motion for summary judgment. 

Ciresi’s motion for summary judgment was supported by an expert declaration 

from a plastic surgeon, Barry Press, M.D., who performs tummy tucks. In its order after 

hearing on the summary judgment motions, the trial court described Dr. Press’s 

declaration as follows: “Dr. Press provides a detailed narrative of the course of treatment 

and medical care Marcia Wable received. [Citation.] He opines that the medical care 

and treatment provided to Marcia at all times satisfied the standard of care, and explains 

in detail how he reached this conclusion.” 

The Wables’s opposition to the defendants’ summary judgment motions was also 

supported by a declaration from a plastic surgeon, Norman Leaf, M.D., who performs 

tummy tucks. The trial court described Dr. Leaf’s declaration as follows: “Plaintiff’s 

expert declaration does not address the medical care provided by Dr. Ciresi, but instead 

addresses his bedside manner. Plaintiffs testified in their depositions that Dr. Ciresi 

appeared unsteady during the post-surgical care, during which he yelled at Marcia, held 

her down, ripped the tape off her wound, generally demeaned her and was bullying .... 

[B]ased on plaintiffs’ deposition testimony, [Dr. Leaf opines] the post-surgical care 

provided by Dr. Ciresi fell below the standard of care.” The trial court added: “Dr. Leaf 

concludes, after quoting large segments of plaintiffs’ deposition testimony in his 

declaration, [¶] [that] ‘[i]t is [his] professional opinion that the post-operative care 

provided to Marcia Wable by Dr. Ciresi violated [the latter’s] duty to provide care with 

compassion and respect for her dignity and rights. Holding her down and yelling, at her 
5.

and her husband was substandard and below standards of professional care required of a 

physician providing said care.” 

The trial court noted that Dr. Leaf “relie[d] on ethical guidelines from the 

American Medical Association [AMA] that state, in pertinent part,” that “[a] physician 

shall be dedicated to providing competent medical care, with compassion and respect for 

human dignity and rights.” (Emphasis omitted.) The court continued: “[T]he foundation 

for Dr. Leaf’s opinion comes from AMA’s ‘principles of medical ethics.’ They are 

simply standards of conduct, not the standard of care .... The AMA (of which Dr. Leaf 

apparently isn’t even a member) is a voluntary professional association. There is no 

showing in the opposition that the AMA’s standards of conduct establish the standard of 

care for California physicians.” (Italics added.) 

Regarding Dr. Leaf’s opinion, the trial court added: 

“The allegations of the Complaint do not encompass breach of these 

standards of professionalism [or bedside conduct]. The Complaint alleges, 

‘Marcia Wable was provided negligent medical care on [August 27, 2015] 

and succeeding dates by Defendants ... who failed to properly/timely 

diagnose and treat Marcia Wable.’ [Citation.] Addressing the harm 

suffered as a result of the negligence, the Complaint alleges, ‘As a result of 

the gross negligence of Defendants ... Marcia Wable presented to the 

emergency room at Clovis Community Hospital for treatment for 

complications related to the tummy tuck, including a severe infection.’ 

[Citation.] This is the harm suffered as a result of the ‘fail[ure] to 

properly/timely diagnose and treat Marcia Wable.’ It does not encompass 

Dr. Ciresi’s bedside manner, or breach of standards of professionalism. 

Plaintiff cannot survive summary judgment by raising triable issues as to 

issues not raised in the pleadings.” (Emphasis omitted.) 

The court granted Ciresi’s motion for summary judgment. The court further ruled: 

“However, plaintiff[s] [are] granted 10 days’ leave to file an amended complaint to 

conform to the proof as submitted in the declaration of Norman Leaf, M.D.” 

The Wables filed a first amended complaint (FAC) on November 13, 2018. 

References to the term “medical malpractice,” which were present in the initial 
6.

complaint, were excised in the FAC, which characterized the action as a personal injury 

action based on a general negligence theory. The paragraph in the original complaint 

describing the direct harm suffered by Marcia Wable—i.e., that Marcia Wable had 

“presented to the emergency room at Clovis Community Hospital for treatment for 

complications related to the tummy tuck, including a severe infection”—was removed in 

the FAC. Instead, the FAC added a new paragraph describing the direct harm suffered by 

Marcia Wable as severe emotional distress arising from Dr. Ciresi’s rough handling and 

bullying behavior during post-operative treatment, including his disparagement of 

plaintiffs when they asked questions about Marcia Wable’s condition. The FAC further 

alleged, in a departure from the original complaint, that George Wable suffered “severe 

emotional distress” as a result of witnessing Dr. Ciresi’s behavior with Marcia Wable. 

Specifically, the new paragraph added to the FAC provided: 

“Defendant Dr. Ciresi, during his post-surgical treatment of Plaintiff 

Marcia Wable, in the presence of her husband, Plaintiff George Wable, 

negligently and/or intentionally caused severe emotional distress to 

Plaintiffs by conduct which included, but [was] not limited to, holding 

Marcia Wable down against her will, standing over her in a threatening and 

intimidating manner while screaming at her and her husband, Plaintiff 

George Wable; that he treated her roughly, including but not limited to, 

violently tearing off bandages over an open post-surgical wound, and 

routinely derogate[ing] each of them, when they asked any questions or 

expressed concerns about his post-surgical care and the course of Plaintiff 

Marcia Wable’s post-surgical healing and recovery.” 

The FAC thus added new factual allegations of negligent and/or intentional behavior—

including details of actions that were “threatening,” “intimidating,” violent, and 

bullying—that were not present in the original complaint. Finally, the FAC noted, just 

like the initial complaint, that “Marcia Wable and George Wable served their notice of 

intent to commence this action (CCP 364) on Defendants on August 26, 2016.” 

On December 12, 2018 and December 18, 2018, the Ciresi and Athenix 

defendants filed their respective demurrers to the FAC. The trial court issued a tentative 
7.

ruling on March 1, 2019, sustaining both the demurrers without leave to amend. The 

court ruled that the FAC did not relate back to the initial complaint and, in turn, was 

barred by the applicable statute of limitations. The Wables requested oral argument, 

which took place on March 7, 2019. The court issued its final order after hearing on 

March 12, 2019, adopting its tentative ruling. 

The Wables appeal from the trial court’s final order after hearing, which sustained 

the demurrers of both the Ciresi and Athenix defendants, without giving the Wables a 

further opportunity to amend the complaint. The ultimate question on appeal is whether 

the allegations in the FAC relate back to the allegations in the initial complaint, thereby 

avoiding any statute of limitations bar. 

DISCUSSION

I. Court Properly Found FAC Did Not Relate Back to Original Complaint

In sustaining the demurrers of all defendants without leave to amend, the trial 

court stated: “Here, the wrongful conduct alleged in the FAC is not within the scope of 

what was alleged in the original Complaint. That was why the court granted summary 

judgment in favor of Dr. Ciresi, but granted leave to amend.” The Wables challenge the 

court’s ruling, making two interrelated claims. 

First, the Wables point out that the original complaint alleged that Marcia Wable 

was provided negligent medical care during the tummy tuck procedure and postoperatively, while Dr. Leaf opined “that the post-surgical care provided by Dr. Ciresi fell 

below the standard of care.” They contend they did not need, in the first place, “to amend 

their complaint to include allegations in accordance with Dr. Leaf’s declaration,” given 

that the original complaint included “claims of mental suffering, humiliation and 

emotional distress as a result of defendants’ negligence, which was broadly alleged to 

include defendants’ care from the time of the surgery and thereafter.” 

Next, the Wables contend the trial court’s ultimate ruling (after they filed the 

FAC), holding that the FAC did not relate back to the original complaint, was erroneous. 
8.

As to the FAC, the trial court ruled: “[T]he new allegations of the FAC do not rest on the 

same general set of facts, involve the same injury, or refer to the same instrumentality [as 

the allegations in the original complaint].” The court further concluded: “Accordingly, 

the FAC does not relate back to the filing of the original Complaint. The FAC is barred 

by the statute of limitations.” The Wables contend “the [c]ourt erred in its analysis.” 

The Wables suggest, “[t]he statute of limitations does not act as a bar because the 

allegations of the [FAC] do indeed satisfy the criteria for relating back to the original 

complaint.” 

The trial court issued a detailed tentative decision, setting forth its reasoning in 

sustaining the defendants’ demurrers without leave to amend. The court thereafter 

adopted its tentative decision as its final order after hearing. The question whether the 

allegations in an amended pleading relate back to the original pleading requires the 

application of a legal doctrine to undisputed facts, rather than the exercise of 

discretionary judgment by the trial court, and we therefore review the trial court’s 

decision de novo. (See e.g., Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 

312, 318.) We agree with the trial court’s reasoning and conclusions as reflected in its 

rulings. Accordingly, we affirm the court’s final order after hearing.

A. Background 

The trial court’s tentative decision sustaining the defendants’ demurrers, 

subsequently adopted as its final order after hearing, provided, in pertinent part: 

“Code of Civil Procedure section 340.5 states that the limitations 

period in professional negligence actions against health care providers is 

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

or through exercise of reasonable diligence should have discovered, the 

injury, whichever occurs first.’

“ ‘Thus, regardless of extenuating circumstances, a patient must 

bring suit within one year after he discovers, or should have discovered[,] 

his ‘injury.’ (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896.)
9.

“Without citing to any supporting authority, plaintiffs contend that 

this matter is to be judged by standards of general negligence, not medical 

malpractice. Plaintiffs contend that in ruling on the motion for summary 

judgment, the court allowed plaintiffs to proceed on tort claims outside of 

professional negligence. Plaintiffs contend that this issue has already been 

litigated and ruled on by this court, in plaintiffs’ favor.

“That is not accurate. Plaintiffs’ summary judgment opposition was 

premised on Dr. Ciresi’s breach of standards of professionalism [or bedside 

conduct] established by the [AMA], in the course of providing medical care

to Marcia. The court’s [November 2, 2018] ruling did not make a 

distinction between claims premised on medical negligence and general 

negligence. [Citation.]

“ ‘[W]hen a cause of action is asserted against a health care provider 

on a legal theory other than medical malpractice, the courts must determine 

whether it is nevertheless based on the “professional negligence” of the 

health care provider so as to trigger MICRA [the Medical Injury 

Compensation Reform Act].’ (Unruh-Haxton v. Regents of the University 

of California (2008) 162 Cal.App.4th 343, 353.) 

“ ‘Professional negligence’ is defined 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 or 

wrongful death, 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.’ (Civ. Code 

§ 3333.1, subd. (c)(2).)

“Plaintiffs allege that defendants were healthcare providers, and that 

Marcia ‘was seen as a patient ... by defendants ...’ (FAC ¶ 1-2.) The 

wrongful acts by Dr. Ciresi alleged in the FAC occurred ‘during his postsurgical treatment,’ including ‘tearing off bandages over an open postsurgical wound,’ and when responding to questions/concerns about ‘the 

course of Plaintiff Marcia Wable’s post-surgical healing and recovery.’ 

(FAC ¶ 6.)

“Clearly the alleged wrongful acts were done ‘in the rendering of 

services for which the health care provider is licensed.’ (Civ. Code 

§ 3333.1, subd. (c)(2).) Negligent hiring and supervision of medical 

personnel also is considered professional negligence. (So v. Shin (2013) 

212 Cal.App.4th 652, 668.) Thus, the MICRA legislation and statute of 

limitations applies here.
10.

“Again, the limitations period is three years from the date of injury, 

or one year after plaintiffs discovered the injury, whichever occurs first. 

(Code Civ. Proc. § 340.5.) It is apparent that the one year limitations 

period applies here. The FAC clearly alleges that plaintiffs were the direct 

objects of the alleged wrongful conduct of Dr. Ciresi, which caused 

physical pain for Marcia Wable, and serious emotional distress for both 

plaintiffs. Thus plaintiffs would have been aware of the injury as it 

occurred.

“The medical services began on 8/27/15. The FAC does not allege 

specifically when the post-surgical care (which forms the basis of the 

complaint) took place. However, it must have taken place sometime within 

the year after the tummy tuck, as plaintiffs allege that they served their 

notice of intent to commence this action on 8/26/16. Even if the acts 

forming the basis of the FAC took place at the end of that year, the claim 

would be time barred as the FAC was filed on 11/18/18. 

“Additionally, even if the cause of action did not sound in 

professional negligence, and MICRA did not apply, the statute of 

limitations for general negligence is two years. (Code Civ. Proc. § 335.1.) 

The FAC was clearly filed more than two years after the alleged wrongful 

conduct.

“However, the original complaint was filed 11/22/16, and plaintiffs 

contend that the FAC relates back to the original complaint.

“The prevailing rule with respect to actions involving parties 

designated by their true names in the original complaint is 

that, if an amendment is sought after the statute of limitations 

has run, the amended complaint will be deemed filed as of the 

date of the original complaint provided recovery is sought in 

both pleadings on the same general set of facts. (Amaral v. 

Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1199.)

“In Massey v. Mercy Med. Ctr. Redding (2009) 180 Cal.App.4th 

690, 698, as to medical malpractice claims, the court stated,

“For an amended malpractice complaint to ‘relate [b]ack’ to 

the original complaint for statute of limitation purposes, the 

amended complaint ‘must (1) rest on the same general set of 

facts, (2) involve the same injury, and (3) refer to the same 

instrumentality, as the original one.’ (Norgart v. Upjohn Co. 

(1999) 21 Cal.4th 383, 408-409, 87 Cal.Rptr.2d 453, 981 P.2d 
11.

79; Barrington v. AH. Robins Co. (1985) 39 Cal.3d 146, 150-

151, 216 Cal.Rptr. 405, 702 P.2d 563.)

“The court in Massey held that the plaintiff’s claims in an amended 

complaint that a nurse ‘was negligent because he administered morphine 

sulfate to plaintiff without a valid prescription and without informed 

consent, to cover up [a prior] fall’ did not relate back to the claims in the 

original [c]omplaint that the nurse ‘was negligent for leaving plaintiff 

unattended on his walker, causing plaintiff to fall.’ (Ibid.)

“In Coronet Manufacturing Co. v. Superior Court (1979) 90 

Cal.App.3d 342, the [c]ourt held that the relation back doctrine does not 

apply in a single death case when the amended complaint alleges a different 

accident [as the] cause [of] death and involves a different instrumentality.

“Here, the wrongful conduct alleged in the FAC is not within the 

scope of what was alleged in the original [c]omplaint. That was why the 

court granted summary judgment in favor of Dr. Ciresi, but granted leave to 

amend. The court explained [at the time]:

“The allegations of the [c]omplaint do not encompass breach 

of [the AMA’s] standards of professionalism [or bedside 

conduct]. The [c]omplaint alleges, ‘Marcia Wable was 

provided negligent medical care on [August 27, 2015] and 

succeeding dates by Defendants, and each of them, who failed 

to properly/timely diagnose and treat Marcia Wable.’ 

[Citation.] Addressing the harm suffered as a result of the 

negligence, the [c]omplaint alleges, ‘As a result of the gross 

negligence of Defendants, and each one of them, Marcia 

Wable presented to the emergency room at Clovis 

Community Hospital for treatment for complications related 

to the tummy tuck, including a severe infection.’ [Citation.] 

This is the harm suffered as a result of the ‘fail[ure] to 

properly/timely diagnose and treat Marcia Wable.’ It does 

not encompass Dr. Ciresi’s bedside manner, or breach of 

standards of professionalism. Plaintiff cannot survive 

summary judgment by raising triable issues as to issues not 

raised in the pleadings.’ (Citation.)

“Thus, the new allegations of the FAC do not rest on the same 

general set of facts, involve the same injury, or refer to the same 

instrumentality. Accordingly, the FAC does not relate back to the filing of 

the original [c]omplaint. The FAC is barred by the statute of limitations.” 

(Emphasis omitted.) 
12.

B. Analysis

Preliminarily, we reject the Wables’s contention that “[t]here was no need,” in the 

first instance, “to require plaintiffs to amend their complaint to include allegations in 

accordance with Dr. Leaf’s declaration.” The Wables have not challenged the court’s 

ruling granting Ciresi’s summary judgment motion, whereby their claim that there was no 

need for them to amend their complaint is inappropriately raised and is not well taken.3 

The Wables next contend that “[t]he statute of limitations does not act as a bar 

because the allegations of the [FAC] do indeed satisfy the criteria for relating back to the 

original complaint.” This argument overlaps with the Wables’s preliminary argument 

addressed above, as both arguments essentially boil down to the question whether the 

factual allegations in the original complaint can reasonably be seen as encompassing 

those in the FAC. The trial court answered this question in the negative and found the 

plaintiffs’ anticipated amendments were ultimately futile.

As to the Wables’s contentions regarding the FAC, we agree with the trial court. 

Specifically, we agree that “the new allegations of the FAC do not rest on the same 

general set of facts, involve the same injury, or refer to the same instrumentality [as the 

allegations in the original complaint].” We therefore affirm the trial court’s conclusion 

3

 In any event, as the trial court explained, the original complaint alleged a medical 

malpractice claim centered on negligent medical care provided to Marcia Wable by Dr. 

Ciresi, to the extent he failed to properly and timely diagnose and treat Marcia Wable in 

connection with her tummy tuck procedure, such that Marcia Wable had to go to the 

emergency room at Clovis Community Hospital on account of a severe infection and 

other complications of the tummy tuck surgery. Dr. Leaf’s declaration, on the other 

hand, discussed Dr. Ciresi’s unprofessional conduct to the extent he acted roughly and in 

a bullying manner during post-operative visits, by roughly handling Marcia Wable in 

examining her and failing properly to answer questions posed to him by both Marcia and

George Wable. Accordingly, the court did not err in requiring the Wables to amend the 

complaint to incorporate factual allegations reflecting the substance of Dr. Leaf’s 

declaration as to Dr. Ciresi’s unprofessional conduct. 
13.

that “the FAC does not relate back to the filing of the original Complaint” and is “barred 

by the statute of limitations.” (See Pointe San Diego Residential Community, L.P. v. 

Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276 (Pointe 

San Diego) [“An amended complaint is considered a new action for purposes of the 

statute of limitations ... if the claims do not ‘relate back’ to an earlier, timely filed 

complaint.”].) 

The Wables correctly summarized the applicable law in their opening brief, 

quoting Pointe San Diego, as follows:

“ ‘Under the relation-back doctrine, an amendment relates back to 

the original complaint if the amendment: (1) rests on the same general set 

of facts; (2) involves the same injury; and (3) refers to the same 

instrumentality. [Citations.] An amended complaint relates back to an 

earlier complaint if it is based on the same general set of facts, even if the 

plaintiff alleges a different theory or new cause of action. [Citations.] 

However, the doctrine will not apply if “the plaintiff seeks by amendment 

to recover upon a set of facts entirely unrelated to those pleaded in the 

original complaint.” (Stockwell v. McAlvay (1937) 10 Cal.2d 368, 375 ..., 

[emphasis omitted].)

“ ‘In determining whether the amended complaint alleges facts that 

are sufficiently similar to those alleged in the original complaint, the critical 

inquiry is whether the defendant had adequate notice of the claim based on 

the original pleading. “The policy behind statutes of limitations is to put 

defendants on notice of the need to defend against a claim in time to 

prepare a fair defense on the merits. This policy is satisfied when recovery 

under an amended complaint is sought on the same basic set of facts as the 

original pleading. [Citation.]” [Citations.] Additionally, in applying the 

relation-back analysis, courts should consider the “strong policy in this 

state that cases should be decided on their merits.” [Citations.] [(Pointe 

San Diego, supra, 195 Cal.App.4th at pp. 276-277.)]’ ” 

Here, the original complaint addressed negligence related to the tummy tuck 

procedure and subsequent treatment that culminated in a post-operative infection. The 

FAC reflected a new set of facts regarding Dr. Ciresi’s inappropriate and negligent 

bedside manner, including roughness, rudeness, and bullying; new injuries, including 
14.

fright and horror, arising from Dr. Ciresi’s aforementioned roughness, rudeness, and 

bullying; and a new instrumentality of harm, that is, Dr. Ciresi’s inappropriate bedside 

manner, including rough treatment, yelling and screaming, and failure to address the 

Wables’s questions and concerns. 

We agree with the trial court that the original complaint did not encompass the 

factual scenarios of Dr. Ciresi screaming at, and disparaging, the Wables, and being 

rough with Marcia Wable, during post-operative visits, thereby emotionally impacting the 

Wables in a direct fashion. The original complaint posited a scenario where Dr. Ciresi’s 

negligent medical care in terms of his failure “to properly/timely diagnose and treat 

Marcia Wable,” led to a negative physical outcome, including a severe infection, for 

Marcia Wable. The FAC, in contrast, posited a scenario where Dr. Ciresi’s lack of 

professionalism or unprofessional conduct directly took an emotional toll on both 

plaintiffs. Given the disparity in the basic facts alleged in the complaint and FAC, 

respectively, the FAC did not relate back to the complaint. (See Austin v. Massachusetts 

Bonding & Ins. Co. (1961) 56 Cal.2d 596, 601 (Austin) [“The rule which makes relation 

back of an amendment dependent upon whether recovery is sought on the same general 

set of facts as those alleged in the original complaint is in accordance with the basic 

principle of code pleading that a litigant need only allege the facts warranting 

recovery.”]; Benfield v. Mocatta Metals Corp. (2d Cir. 1994) 26 F.3d 19, 23 (for relationback doctrine to apply, “there must be a sufficient commonality” of alleged acts of 

wrongdoing to preclude a claim of “unfair surprise”];4 Santamarina v. Sears, Roebuck & 

Co. (7th Cir. 2006) 466 F.3d 570, 573 [“The criterion of relation back is whether the 

original complaint gave the defendant enough notice of the nature and scope of plaintiff’s 

4 As California and federal law are similar with respect to the relation-back 

doctrine, California courts look to federal decisions in applying the doctrine. (See Austin, 

supra, 56 Cal.2d at pp. 601-602; Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 

409, 416-417.)
15.

claim that he shouldn’t have been surprised by the amplification of the allegations of the 

original complaint in the amended one.”].) 

The Wables argue, in their reply brief, that the factual allegations in the original 

complaint were not limited to medical malpractice that resulted in a negative physical 

outcome for Marcia Wable, including a severe infection that required emergency medical 

treatment. The Wables argue the reference to Marcia Wable requiring emergency 

treatment for severe infection simply signified a component of damages. However, this 

contention amounts to a strained interpretation of the original complaint and is not 

persuasive. 

Finally, the Wables rely heavily on Pointe San Diego, supra, 195 Cal.App.4th 

265, a legal malpractice case they did not cite to the trial court. In Pointe San Diego, the 

original legal malpractice complaint generally alleged that within the last year, 

“ ‘Defendants, as Plaintiffs’ attorneys, failed to use due care’ ” in the handling of real 

estate litigation on behalf of the plaintiffs. (Id. at p. 271.) The Pointe San Diego court 

concluded that a subsequent amendment of the original legal malpractice complaint in the 

matter, related back to the original complaint, because the defendant law firm had 

adequate “notice that the professional negligence claim was based on its representation of 

plaintiffs in [a particular] case, and of the need to gather and preserve evidence relating to 

[that] representation.” (Id. at p. 278.) In other words, the legal malpractice claim related 

to one particular representation, with which the defendant law firm was already well 

familiar. The court elaborated: “Although the original complaint did not detail how the 

firm had allegedly breached the standard of care, the form complaint and the ... amended 

complaint rested on the same general set of facts [regarding a single litigation matter], 

involved the same injury (monetary damages sustained as a result of alleged professional 

negligence), and referred to the same instrumentality (alleged professional negligence).” 

(Ibid.) 
16.

The Wables argue: “Just as the plaintiffs in [Pointe San Diego] alleged in their 

original lawsuit generally that the defendant lawyers ‘failed to use due care’ in 

representing them, so plaintiffs in this case alleged that defendants provided ‘negligent 

medical care.’ ” The Wables add: “The complaint alleged that defendants’ conduct ‘fell 

below the standard of care’ as it related to treatment of Marcia Wable from the time of 

her tummy tuck procedure and thereafter.” The Wables continue: “Just as the defendants 

in [Pointe San Diego] were put on notice that the claims being brought had to do with 

counsel’s representation of those parties in certain litigation, so too were the defendants 

herein put on notice that plaintiffs’ claims arose from the treatment of Marcia Wable as a 

patient.” Finally, the Wables contend that the FAC simply alleges “more specifics about 

the negligent medical care” provided by defendants. 

The Wables’s citation to Pointe San Diego is unavailing, as that case is factually 

distinguishable from the instant matter. The Pointe San Diego court reasoned: “[I]t 

would defeat this state’s liberal pleading rules and statutory and judicial policies 

requiring prompt filing of malpractice complaints to hold the relation-back doctrine 

inapplicable here merely because plaintiffs’ original complaint did not contain detailed 

allegations of the precise nature of the alleged legal malpractice.” (Pointe San Diego, 

supra, 195 Cal.App.4th at p. 279.) In contrast to the situation in Pointe San Diego, here 

the original complaint outlined the factual scenario underlying the alleged malpractice at 

issue. The original complaint specifically alleged that defendants “provided negligent 

medical care” in that they “failed to properly/timely diagnose and treat Marcia Wable,” 

whereby “Marcia Wable presented to the emergency room at Clovis Community Hospital 

for treatment for complications related to the tummy tuck, including a severe infection.” 

In the FAC, these factual allegations were removed and replaced with new allegations 

regarding Dr. Ciresi’s poor bedside manner in the course of providing post-operative 

care, including screaming at the Wables, violently tearing bandages off Marcia Wable’s 

surgical wound, and disparaging the Wables when they asked him questions related to 
17.

Marcia Wable’s condition. Pointe San Diego addressed a very different situation and is, 

therefore, inapposite. Nor are the other authorities citied by the Wables persuasive on the 

present record. 

In sum, the allegations in the FAC do not: (1) rest on the same general set of facts 

as reflected in the original complaint; (2) do not involve the same injury as the original 

complaint; and (3) do not refer to the same instrumentality of harm as the original 

complaint. Since the relation-back doctrine does not apply, the trial court properly 

sustained the defendants’ demurrers.5 

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs.

SMITH, J.

WE CONCUR:

HILL, P. J. 

DETJEN, J.

5 Plaintiffs do not contend the trial court should have granted further leave to 

amend.