Filed 4/23/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ASMA POUZBARIS,

 Plaintiff and Appellant,

 v.

PRIME HEALTHCARE SERVICESANAHEIM, LLP,

 Defendant and Respondent.

 G048891

 (Super. Ct. No. 30-2012-00575537)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Luis A.

Rodriguez, Judge. Reversed.

Goldsman Law Offices, Evan A. Blair, Gene J. Goldsman and Aron M. 

Goldsman for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, Thomas M. 

Peabody, David P. Pruett and Michael E. DeCoster for Defendant and Respondent.

* * *
2

Plaintiff Asama Pouzbaris appeals from the summary judgment entered in 

favor of defendant Prime Healthcare Services-Anaheim LLP dba West Anaheim Medical 

Center. Plaintiff’s complaint alleged that while she was a patient at defendant’s hospital, 

she slipped and fell on a recently mopped floor that lacked any warning signs. Defendant 

obtained summary judgment on the ground plaintiff’s action was barred by the one-year 

statute of limitations period imposed by the Medical Injury Compensation Reform Act of 

1975 (MICRA) (Stats. 1975, 2d Ex. Sess., ch. 1, § 25, pp. 3969-3970, § 1.192, pp. 3991-

3992) under Code of Civil Procedure section 340.5 (all further undesignated statutory 

references are to this code).

The question on appeal is whether a hospital’s purported conduct in 

mopping a floor and failing to provide warning signs constitutes “professional 

negligence” within the meaning of section 340.5 rather than ordinary negligence subject 

to the two-year limitations period under section 335.1. The California Supreme Court 

recently granted review of a case involving the similar issue concerning a hospital’s 

alleged negligence in allowing a patient’s bed rail to collapse. (Flores v. Presbyterian 

Intercommunity Hospital (2013) 213 Cal.App.4th 1386, review granted May 22, 2013, 

S209836.) We conclude the current action falls within the two-year statute.

FACTS AND PROCEDURAL BACKGROUND

On June 13, 2010, plaintiff was admitted to defendant after complaining of 

“chest tightness with shortness of breath.” She was placed in a room with a private 

bathroom. Two days later, while still in defendant’s care, she used the bathroom to 

freshen up and change her clothes. Walking back her bed, she slipped and fell, injuring 

herself. Plaintiff claimed the floor was wet and appeared to have been recently mopped. 

No warning cones were present. Plaintiff testified in her deposition that shortly after her 

fall, the cleaning lady said, “‘Oh, I know that you fell. I’m so sorry. I’m so sorry.’”
3

Plaintiff admitted she knew of the alleged negligence on June 15, 2010, but 

did not file her complaint until June 11, 2012. The complaint sought damages for 

personal injury with a cause of action for premises liability.

Defendant moved for summary judgment, arguing that plaintiff’s action 

was time-barred by section 340.5. The trial court agreed and granted the motion. It ruled 

the action was one “for professional negligence” because the negligence was “committed 

in the act of rendering services for which the hospital is licensed,” which was namely “to

use reasonable care and diligence in safeguarding a patient committed to its charge. So 

whether [p]laintiff fell because she was not supervised or assisted on her trip to the 

restroom, or because a ‘cleaning lady’ mopped her room while she was in the restroom is 

irrelevant for this analysis: in either event, the claim concerns [d]efendant’s duties to 

take appropriate measures for patient safety, and concerns rendering of services for which 

[d]efendant is licensed.” Thus, “under Murillo v. Good Samaritan Hospital (1979) 

99 Cal.App.3d 50 [(Murillo)] and its progeny, because the claim is one brought by a 

patient against a hospital for an alleged injury sustained in the course of the hospital’s 

care for her it is a claim for professional negligence.”

We disagree with defendant’s analysis and reverse the judgment.

DISCUSSION

1. Standard of Review

Summary judgment is appropriate where “all the papers submitted show 

that there is no triable issue as to any material fact and that the moving party is entitled to 

a judgment as a matter of law.” (§ 437c, subd. (c).) A defendant moving for summary 

judgment “bears the burden of persuasion that ‘one or more elements of’ the ‘cause of 

action’ in question ‘cannot be established’ or,” as with the statute of limitations defense 

here, that there is a complete defense to the action. (Aguilar v. Atlantic Richfield Co. 
4

(2001) 25 Cal.4th 826, 850.) We “consider all of the evidence set forth in the papers, 

except that to which objections have been made and sustained by the court, and all 

[uncontradicted] inferences reasonably deducible from the evidence” (§ 437c, subd. (c)), 

and “are not bound by the trial court’s stated reasons or rationale. Instead, we review the 

summary judgment without deference to the trial court’s determination of questions of 

law.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

2. Inadequate Record

Defendant asserts plaintiff provided an inadequate record on appeal to 

support her claim an objection to defendant’s separate statement of undisputed material 

facts should have been sustained. That may be true but it is immaterial.

3. Which Limitations Period Applies Under the Facts Alleged

3.1 Statutes

MICRA’s limitations period, 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.” Under this statute, 

“‘Professional negligence’ means 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.” (§ 340.5, subd. (2), 

italics added.)
5

The statute on which plaintiff relies, section 335.1, is outside of MICRA 

and pertains to ordinary negligence claims for personal injury. It provides that “[a]n 

action for assault, battery, or injury to, or for the death of, an individual caused by the 

wrongful act or neglect of another” must be commenced “[w]ithin two years.” (§ 335.1.)

The various statutes comprising MICRA were enacted because of the 

rapidly rising costs of medical malpractice insurance. (Delaney v. Baker (1999) 20 

Cal.4th 23, 33-34.) The legislative intent in shortening the statute of limitations for 

MICRA cases “was to give insurers greater certainty about their liability for any given 

period of coverage, so that premiums could be set to cover costs.” (Young v. Haines

(1986) 41 Cal.3d 883, 900.)

Thus, the applicable statute of limitations depends on how the negligence is 

characterized. The determinative question is whether plaintiff’s slip and fall occurred as 

a result of professional negligence, as that term is defined by section 340.5, or ordinary 

negligence, in which case the action is governed by the two-year limitations period under 

section 335.1.

3.2 Pre-MICRA Case Law

The main pre-MICRA case discussed by the parties is Gopaul v. Herrick 

Memorial Hosp. (1974) 38 Cal.App.3d 1002 (Gopaul). In that case, a plaintiff left 

unattended fell off a gurney to which she had not been strapped. At the time, the period 

for filing an action for ordinary negligence ran from the time of the negligent act, while a 

suit based on professional negligence ran from when the plaintiff should have discovered 

the cause of the injury. The trial court granted a nonsuit judgment against the plaintiff 

following its determination that “‘professional malpractice’ was not involved in the 

defendant hospital’s tortious conduct, and that the reasons for the extended statute of 

limitations for such malpractice were wholly inapplicable here. The need to strap 

plaintiff to the gurney while she was ill and unattended would have been obvious to all. 
6

The situation required no professional ‘skill, prudence and diligence.’ It simply called 

for the exercise of ordinary care.” (Id. at p. 1007.) 

In affirming, Gopaul explained “that inherent in the concept of 

‘professional malpractice’ is that it must have occurred in the ‘performance of 

professional or fiduciary duties.’ It follows that not every tortious injury inflicted upon 

one’s client or patient or fiducial beneficiary amounts to such malpractice. No reasonable 

person would suggest that ‘professional malpractice’ was the cause of injury to a patient 

from a collapsing chair in a doctor’s office, or to a client from his attorney’s negligent 

driving en route to the court house, or to a hospital patient from a chandelier falling onto

his bed. Such injuries would, no doubt, have proximately resulted from ‘ordinary 

negligence,’ but they would not be brought about from ‘professional malpractice.’” 

(Groupal, supra, 38 Cal.App.3d at pp. 1005-1006.)

3.3 Post-MICRA Case Law

Discussed extensively by both parties is Murillo, supra, 99 Cal.App.3d 50. 

There, the plaintiff fell out of her bed due to the hospital’s alleged failure to raise the bed

rails. Murillo reversed a summary judgment in the defendant hospital’s favor, but stated: 

“the question whether it was negligent to leave the bedrails down during the night while 

plaintiff was asleep is a question involving hospital’s duties to recognize the condition of 

patients under its care and to take appropriate measures for their safety. Thus, the 

question is squarely one of professional negligence [citation] and section 340.5 governs 

the running of the statute of limitations.” (Id. at p. 56.)

Murillo disagreed with Gopaul because it had been decided before section 

340.5’s enactment and its result was “incompatible with the definition of professional 

negligence found in section 340.5. Under that definition, the test is not whether the 

situation calls for a high or a low level of skill, or whether a high or low level of skill was 

actually employed, but rather the test is whether the negligent act occurred in the 
7

rendering of services for which the health care provider is licensed. When a seriously ill 

person is left unattended and unrestrained on a bed or gurney, the negligent act is a 

breach of the hospital’s duty as a hospital to provide appropriate care and a safe 

environment for its patients.” (Murillo, supra, 99 Cal.App.3d at p. 57.)

Murillo agreed with Gopaul, however, that no professional malpractice 

obtains when injury is caused by “a collapsing chair in a doctor’s office, or . . . from [an]

attorney’s negligent driving en route to the court house.” (Murrillo, supra,

99 Cal.App.3d at p. 56.) But as to an injury caused by a chandelier falling onto a 

patient’s bed, Murillo had “difficulty . . . because the professional duty of a hospital . . . is 

primarily to provide a safe environment within which diagnosis, treatment, and recovery 

can be carried out. Thus if an unsafe condition of the hospital’s premises causes injury to 

a patient, as a result of the hospital’s negligence, there is a breach of the hospital’s duty 

qua hospital.” (Id. at pp. 56-57.)

Defendant urges us to follow Murillo while plaintiff claims the case was 

overruled by Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 

992 (Flowers). But to the extent Flowers overruled any portion of Murillo, it did not 

involve Murillo’s analysis of what constitutes professional, as opposed to ordinary, 

negligence for statute of limitations purposes.

In Flowers, the plaintiff fell off the side of a gurney on which the side rail 

had not been raised by the attending nurse. The Court of Appeal reversed the summary 

judgment in favor of the defendant hospital and nurse, the majority agreeing “that 

defendants had negated any ‘professional negligence,’” but finding “the pleadings ‘broad 

enough to encompass a theory of liability for ordinary as well as professional negligence’

because the manner of her injury did not involve a breach of duty to provide professional 

skill or care.” (Flowers, supra, 8 Cal.4th at p. 996, fn. omitted.) The Supreme Court 

reversed and remanded, holding that “the same factual predicate can[not] give rise to two 

independent obligations to exercise due care according to two different standards
8

[because] this is a legal impossibility: a defendant has only one duty, measured by one

standard of care, under any given circumstances.” (Id. at p. 1000.)

In doing so, Flowers cited Gopaul and Murillo noting they had “addressed 

the question of whether a patient’s fall from a hospital bed or gurney constituted 

‘ordinary’ or ‘professional’ negligence.” (Flowers, supra, 8 Cal.4th at p. 999.) But 

“[b]ecause the question [was] not squarely presented, [Flowers] decline to resolve the 

conflict between Murillo . . . and Gopaul . . . on the question of whether a patient’s fall 

from a hospital bed or gurney implicates ‘professional’ or ‘ordinary’ negligence in a 

statutory context. However, to the extent either decision may be inconsistent with the 

analysis herein, it [was] disapproved.” (Id. at p. 1002, fn. 6.)

Plaintiff also relies on Bellamy v. Appellate Department (1996) 

50 Cal.App.4th 797 (Bellamy), which she claims likewise “rejected application of the 

Murillo dicta test and analyzed whether ordinary negligence or professional negligence 

applied to an inquiry into whether the acts and circumstances complained of arose from 

the professional skill, diligence and prudence for which the medical provider is licensed.” 

In Bellamy, the plaintiff sued a hospital for general negligence and premises liability, 

after she allegedly fell off an X-ray table on which she “was left unattended” and 

unsecured. (Id. at p. 799.) The trial court sustained the defendant’s demurrer without 

leave to amend on the ground the plaintiff’s action was barred by the former one-year 

statute of limitations for personal injury actions. (Former § 340, subd. (3).) In opposition 

to the demurrer, the plaintiff had contended she was subject to the notice requirement for 

professional negligence actions against health care providers and had served the required 

notice within 90 days of expiration of the statute of limitations period, which extended

her time for filing suit for 90 days after service of notice thereby making her complaint 

timely filed under section 364, subdivision (d). The Court of Appeal agreed and 

reversed. (Bellamy, at p. 809.)
9

Bellamy reasoned that section 340.5 defines professional negligence as “‘a 

negligent action or omission . . . in the rendering of professional services’” (Bellamy, 

supra, 50 Cal.App.4th at p. 805), and a broad reading of the facts showed “the hospital 

was rendering professional services to” the plaintiff “either in preparation for, during, or 

after an X-ray exam or treatment.” (Id. at pp. 805-806.) According to Bellamy, “[t]his 

result is consistent with Murillo: ‘[T]he test [under Murillo] is whether the negligent act 

occurred in the rendering of services for which the health care provider is licensed.’” (Id. 

at p. 806.) Because the complaint sufficiently alleged facts amounting to professional 

negligence, the court concluded it fell within section 364 and the complaint was timely

filed. (Id. at p. 809.)

In contrast to defendant here, but much like the plaintiff in this case, the 

defendant hospital in Bellamy argued the Murillo test was “overbroad and ‘would make 

any act inside a hospital which causes any harm to a patient or to any person inside a 

hospital an act of “professional negligence.”’ The hospital criticize[d] the Murillo court’s 

dictum that a negligently maintained, unsafe condition of a hospital’s premises which 

causes injury to a patient falls within professional negligence. According to the hospital, 

this rationale ‘obliterates’ the word ‘professional’ from the statutory definition, making 

any negligence by an agent or employee of a health care facility professional negligence.” 

(Bellamy, supra, 50 Cal.App.4th at p. 806.)

Bellamy responded that it need not “agree with the Murillo dictum to apply 

that court’s actual holding in this case. Murillo’s facts showed that a patient hospitalized 

for treatment of shingles on her lower back was placed on a hospital bed and given 

sedatives and tranquilizers. The alleged negligence was failure of the hospital staff to 

raise bedrails designed to prevent the patient’s falling while she was asleep. On these 

facts we agree with the court’s holding that the case fell within the statutory definition of 

professional negligence. That holding does not necessarily lead to the further conclusion 
10

that any negligent act or omission by a hospital causing a patient injury is professional 

negligence.” (Bellamy, supra, 50 Cal.App.4th at p. 806.)

Bellamy thus agreed with Murillo that the issue is controlled by the 

statutory definition of professional negligence in section 340.5, “which focuses on 

whether the negligence occurs in the rendering of professional services, rather than 

whether a high or low level of skill is required.” (Bellamy, supra, 50 Cal.App.4th at 

pp. 806-807.) Bellamy continued: “That the alleged negligent omission was simply the 

failure to set a brake on the rolling X-ray table or the failure to hold the table in place, 

neither of which requires any particular skill, training, experience or exercise of 

professional judgment, does not affect our decision. We presume that during the course 

of administering an examination or therapy like that which Bellamy underwent, an X-ray 

technician may perform a variety of tasks, such as assisting the patient onto the table, 

manipulating the table into one or more desired positions, instructing the patient to move 

from one position to another, activating the X-ray machine, removing the photographic 

plates, assisting the patient from the table, etc. Some of those tasks may require a high 

degree of skill and judgment, but others do not. Each, however, is an integral part of the 

professional service being rendered. Trying to categorize each individual act or 

omission, all of which may occur within a space of a few minutes, into ‘ordinary’ or 

‘professional’ would add confusion in determining what legal procedures apply if the 

patient seeks damages for injuries suffered at some point during the course of the 

examination or therapy. We do not see any need for such confusion or any indication the 

Legislature intended MICRA’s applicability to depend on such fine distinctions.” (Id. at 

p. 808, fn. omitted.)

3.4. Conclusion

We agree with Bellamy and Murillo that the statutory definition of 

professional negligence in section 340.5 requires us to determine “whether the negligence 
11

occurs in the rendering of professional services” and not the level of skill required for 

each individual task. (Bellamy, supra, 50 Cal.App.4th at pp. 806-807.) For purposes of 

section 340.5, subdivision (2), “professional negligence” is defined as “a negligent act or 

omission to act by a health care provider in the rendering of professional services.” 

Because mopping the floor and putting a warning sign up did not occur during the 

rendering of such services, plaintiff sufficiently alleged facts to support an ordinary 

negligence claim so as to bring her action within the two-year limitations period of 

section 335.1.

We disagree with Murillo’s dictum that a negligently maintained, unsafe 

condition of a hospital’s premises which causes injury to a patient qualifies as 

professional negligence. Rather, injury to a patient from a falling chandelier, or a 

recently mopped floor, does not fall within the meaning of professional negligence as 

defined in section 340.5. (Gopaul, supra, 38 Cal.App.3d at pp. 1005-1006.) For the 

same reason, we are not persuaded by defendant’s citations to various authorities to 

establish that it “is a health care provider within the definition of MICRA” with duties to 

its patients including ensuring their safety. Again, the critical determination is whether 

the negligence occurred in the rendering of professional services. (§ 340.5, subd. (2); 

Bellamy, supra, 50 Cal.App.4th at pp. 805-806.) Plaintiff’s complaint, alleging she was 

injured when she slipped and fell on a recently mopped floor, did not occur in the 

rendering of professional services but rather sounds in ordinary negligence. Therefore, 

the action is governed by the two-year statute of limitations (§ 335.1), making the lawsuit 

timely.
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DISPOSITION

The judgment is reversed. Plaintiff shall recover her costs on appeal.

CERTIFIED FOR PUBLICATION

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.