Filed 2/17/21 Flores v. Sharp Grossmont Hospital CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

EDUARDO FLORES,

Plaintiff and Appellant,

v.

SHARP GROSSMONT HOSPITAL,

Defendant and Respondent.

D076786

(Super. Ct. No. 37-2016-

00039735-CU-MM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Timothy B. Taylor, Judge. Affirmed.

Eduard Flores, in pro. per., for Plaintiff and Appellant.

Lotz, Doggett & Rawers, Jeffrey S. Doggett and Patrick F. Higle for 

Defendant and Respondent.

Eduardo Flores sued Sharp Grossmont Hospital (Sharp) in 2016 

seeking to recover for injuries suffered during a 2014 surgery. In a prior 

appeal, we reversed a judgment dismissing the action based on the statute of 

limitations. (Flores v. Sharp Grossmont Hospital (Oct. 31, 2018, D071993)

[nonpub. opn.] (Flores I).) We determined Flores met his appellate burden to 
2

show a reasonable possibility he could amend his complaint on his medical 

malpractice claim to establish the limitations period was tolled during his 

claimed incapacity. (Ibid.; see Code Civ. Proc., §352, subd. (a).)1

In reversing, we gave specific directions that to satisfy his pleading 

burden on the medical malpractice claim, Flores must allege facts (1) 

specifying the nature of Sharp’s alleged wrongdoing and breach of duty owed 

to him; (2) describing the nature of his claimed incapacity and the time period 

he claims he was incapacitated; and (3) showing his claim was timely under 

applicable tolling principles. (Flores I, supra, D071993.) 

On remand, the court twice gave Flores leave to amend his complaint, 

and ultimately sustained Sharp’s demurrer to Flores’s fourth amended 

complaint without leave to amend. Flores appeals. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Proceedings

In his original and first amended complaints against Sharp, Flores 

(representing himself) asserted a medical malpractice cause of action, and a 

separate cause of action for wrongful denial of access to his medical records. 

Flores alleged that in 2008, he was examined at Sharp for cardiac 

issues. In 2014, he was scheduled to have brain surgery. Before the surgery, 

he went to the San Diego Cardiac Center for an evaluation. He told the 

cardiologist (Dr. Hoagland) “that Sharp . . . had the results of [cardiac tests] 

that had been done in 2008.” These records were allegedly not found or 

examined. Because of the alleged failure to obtain and examine these 

records, Flores was “diagnosed with low risk of cardiac complications.” 

However, during the surgery performed on June 9, 2014, Flores suffered 

1 All unspecified statutory references are to the Code of Civil Procedure.
3

serious complications allegedly because of his cardiac problems. Flores

sought recovery from Sharp for the injuries resulting from the 2014 surgery 

complications. 

Sharp moved for judgment on the pleadings, solely on the ground that 

the amended complaint was untimely under the one-year limitations period 

applicable to medical malpractice claims. (§ 340.5.) Sharp maintained the 

cause of action accrued no later than Flores’s surgery date (June 9, 2014) 

because he alleged that during this surgery, he suffered serious complications 

allegedly resulting from Sharp’s wrongful actions. Sharp thus argued Flores 

had one year from June 2014 to file his medical malpractice claim, and by 

waiting more than two years (to November 2016), Flores did not timely file 

his lawsuit.

In opposing the motion, Flores attempted to clarify his malpractice 

claim against Sharp, and also said that in “ ‘2014, 2015 and half 2016, I lost 

my memory, and I was in recuperation therapy.’ ” He said that in early 

December 2016, he went to Sharp to obtain a copy of his medical records, but 

the hospital refused to provide him with his records. Flores said he was 

seeking to “ ‘find out the truth’ ” with respect to what happened to him in 

2008 regarding his heart condition. 

In reply, Sharp noted it was difficult to discern the precise nature of the 

alleged professional negligence. But Sharp argued that even assuming Flores 

had alleged a valid malpractice claim against Sharp, the complaint—filed 

more than 29 months after his June 2014 surgery—was untimely under 

section 340.5’s one-year limitations period.

The trial court granted Sharp’s motion for judgment on the pleadings, 

finding the medical malpractice claim accrued no later than June 9, 2014, 

when Flores allegedly “underwent the surgical procedure due to 
4

Sharp’s . . . diagnosis that he ‘was on low risk for cardiac complications’ 

which was [allegedly] ‘wrong’ ” and thus “the complaint . . . filed more than 2 

years later” was untimely. (Flores I, supra, D071993.)

On Flores’s cause of action for failure to “access” his medical records, 

the court stated Flores “provides no authority this is a legally cognizable 

claim,” and “[d]efense counsel, who represents only physicians, hospitals and 

medical groups, assures the court there is no such legal claim.” (Flores I, 

supra, D071993.)

The court denied Flores’s request for leave to amend on both causes of 

action. The court also granted Sharp’s motion to quash Flores’s deposition 

subpoenas. 

First Appeal

In his first appeal, Flores (representing himself) argued his 

professional negligence claim was timely and, alternatively, he should be

permitted to amend to show grounds for extending the limitations period.

We first held the trial court properly found the claim—as alleged—was 

time barred under section 340.5. (Flores I, supra, D071993.) We explained 

that Flores alleged Sharp (or its agents) “committed professional negligence 

by failing to accurately diagnose his heart condition (or provide the 

appropriate documents to Dr. Hoagland to permit a proper diagnosis)” and 

that he suffered injuries (in the form of serious complications) during 

neurosurgery in June 2014, and thus his November 2016 complaint was 

untimely. (Ibid.)

But we found Flores should be provided an opportunity to amend his 

malpractice claim to allege facts to overcome the statute of limitations

defense based on a statutory tolling rule applicable during a person’s 
5

incapacity. (Flores I, supra, D071993; see § 352, subd. (a).)2 In reaching this 

conclusion, we analyzed whether this tolling rule applies to medical 

malpractice actions, and we concluded it does. (Flores I, supra, D071993.)

We defined “incapacity” in this context to mean a person is “ ‘incapable of 

caring for his [or her] property or transacting business or understanding the 

nature or effects of his [or her] acts . . . .’ ” (Ibid.)

Based on Flores’s representations on appeal and in the court below that 

he may be able to allege facts showing he was incapacitated from 2014 

through 2016, we reversed the judgment. (Flores I, supra, D071993.) We 

stated: “[Flores] claims the surgery left him incompetent without basic 

physical or cognitive skills through the middle or end of 2016. If Flores can 

in good faith allege specific facts showing his condition precluded him from 

caring for his property and transacting business affairs, and/or 

understanding the nature of his acts, until he filed his complaint, he may be 

able to avoid a dismissal at the pleading stage.” (Ibid.)

We thus remanded to provide Flores with the opportunity to allege 

facts showing his medical malpractice claim was tolled under section 352, 

subdivision (a). In so doing, we stated: “For purposes of guidance on remand, 

we recognize Flores’s pleadings and written submissions are unclear as to the 

precise conduct by Sharp that is alleged to be negligent, particularly whether 

the alleged negligence occurred in 2008 or 2014 or 2016, and when Flores 

allegedly suffered injury from this negligence. Thus, to satisfy his pleading 

burden on remand, Flores has the obligation to additionally allege the specific 

2 Section 352, subdivision (a) states: “If a person . . . is, at the time the 

cause of action accrued . . . lacking the legal capacity to make decisions, the 

time of the disability is not part of the time limited for the commencement of 

the action.”
6

wrongdoing allegedly committed by Sharp and when Flores was allegedly 

injured by this wrongdoing.” (Flores I, supra, D071993.) 

We then reached and resolved three additional contentions raised by 

Flores. 

First, we rejected Flores’s argument that he should be permitted to 

amend his malpractice claim to alternatively allege that the statute of 

limitations was tolled by Sharp’s “fraudulent concealment of [his] medical 

records.” (Flores I, supra, D071993.) Based on Flores’s admissions, we 

determined this theory was not a valid independent ground for tolling section 

340.5’s limitations period. We thus concluded that “although Flores has met 

his appellate burden to establish a basis for an amendment for tolling on an 

incompetency theory, he did not meet this burden on a fraudulentconcealment theory.” (Flores I, supra, D071993.) 

Second, with respect to Flores’s cause of action for Sharp’s failure to 

provide him access to his medical records, we noted the trial court made a 

specific finding that this claim did not state a viable cause of action under 

California law. (Flores I, supra, D071993.) After considering the issue, we 

determined Flores forfeited any objection to this ruling by failing to 

“specifically challenge this ruling on appeal and/or provide any factual or 

legal basis supporting this cause of action.” (Ibid.) We thus held there was 

“no error in the court’s conclusion” pertaining to this cause of action. (Ibid.)

Third, we rejected Flores’s challenges to the court’s rulings granting 

Sharp’s motion to quash his deposition subpoenas. (Flores I, supra,

D071993.) We found his challenges to “be without merit.” (Ibid.) 

In our Disposition section, we stated: “The court is ordered to vacate 

the order and judgment granting Sharp’s motion for judgment on the 

pleadings, and to enter a new order allowing Flores to amend the complaint 
7

to add a tolling theory based on his claimed incompetency under . . . section 

352 and to allege facts identifying Sharp’s alleged wrongdoing and when he 

was allegedly injured by this wrongdoing.” (Flores I, supra, D071993.)

Proceedings On Remand

After remand, Flores first filed a third amended complaint that was 

confusing and difficult to understand. He attached numerous exhibits

pertaining mainly to his contacts with Sharp and his consultation with Dr. 

Hoagland. Sharp demurred to the complaint. Instead of responding, Flores 

moved to file a fourth amended complaint. The court granted the motion.

The fourth amended complaint alleged similar foundational facts but 

with more clarity and specificity (and without any attachments). This 

pleading alleged that on June 25, 2008, Flores went to Kaiser Permanente for 

treatment for chest pains. He was then transported via ambulance to Sharp 

where Dr. Marc Kobernick3 performed an electrocardiogram and cardiac 

catheterization. An unidentified medical professional came into his hospital

room and told him he “could die at any moment” and “was about to have open 

heart surgery.” Flores refused to sign the consent form. Shortly after, Flores

was transferred to Kaiser hospital without his consent. 

Three years later, in September 2011, Flores suffered a brain injury. 

After many neurological consultations, his surgery was scheduled for 2014. 

He was referred to Dr. Hoagland, a cardiologist at San Diego Cardiac Center, 

for cardiac surgical clearance.

Flores saw Dr. Hoagland on February 28, 2014. Dr. Hoagland 

requested all medical records pertaining to Flores’s cardiac history from 

3 Although Flores spells Dr. Kobernick’s name with a C, the record shows

it is spelled with a K (Dr. Kobernick). Dr. Kobernick was named in the

complaint, but was never served.
8

Sharp, but was allegedly unable to obtain any records. Flores also requested 

records, but did not receive any documents. Dr. Hoagland found there was 

“no definitive history” of cardiac disease allegedly “based on [Sharp’s]

representation that Plaintiff had no medical record of cardiac evaluation, 

testing, diagnosis, or treatment at [its] facility.” 

On April 25, 2014, Dr. Hoagland “gave preoperative cardiac clearance 

without full benefit and knowledge of [his] prior treatment and history 

received while under the care and custody of Sharp . . . in June 2008 due to 

[its] failure to provide a complete set of treatment records.” 

Flores alleged he “had brain surgery without a proper preoperative 

evaluation because his full medical history was not made available for 

review,” resulting in “numerous complications,” including “a stroke, 

respiratory failure, shunt implant, extended hospital stay, pain, 

rehabilitation, seven additional surgeries and ongoing medical problems.” As 

to tolling, he alleged he “lacked the legal capacity to make decisions from 

June 9, 2014 to on or about November 16, 2016, as [he] was receiving medical 

treatment including but not limited to multiple brain surgeries, a shunt 

implant for his brain, decompression for his brain and many other

procedures.” 

Based on these alleged facts, Flores asserted three causes of action.

First, he alleged professional negligence based on his allegation that 

Sharp had a duty to “keep accurate medical records” of his “stay, diagnosis, 

and treatment at the hospital pursuant to 22 CCR § 72543,” and Sharp 

allegedly breached this duty by not “keeping an accurate medical record of 

[his] cardiac evaluation, testing, diagnosis or treatment.” He alleged Sharp 

breached its duty when it “refused to provide Plaintiff or other authorized 

medical professional with [his] medical records pursuant to the records 
9

retention period outlined in 22 CCR § 72543.” He alleged that as a result of 

Sharp’s failure to provide these medical records, he suffered surgery 

complications in 2014. 

Second, he alleged a cause of action for intentional misrepresentation. 

He claimed Sharp falsely represented it “had no medical records” pertaining 

to his prior heart attack and/or its treatment of his cardiac problems in 2008; 

Sharp intended that he or his agent rely on this representation; medical 

professionals relied on this representation; and he was “harmed when he 

proceeded with” the neurosurgery in 2014, and thereby suffered serious 

complications.

Third, Flores alleged negligence pertaining to the competency and 

licensure of Sharp’s physicians and hospital staff pertaining to his treatment

and its medical records policies and practices. He alleged Sharp breached its

duties owed to him when it “negligently selected, retained, and/or allowed to 

practice at their facility, health care practitioners who were improperly 

trained and/or otherwise not competent to care for its patients or maintain 

medical records in accordance with the provisions of 22 CCR § 72543. These 

practitioners include . . . Dr. [K]obernick . . . .”

Sharp demurred to the complaint. 

On the first cause of action, Sharp argued (1) Flores failed to identify a 

duty requiring it to provide and maintain medical records, noting Flores’s 

cited regulation applies only to skilled nursing facilities (Cal. Code Regs., tit. 

22, § 72543); (2) the claim is “vague and uncertain”; and (3) Flores’s “previous 

cause of action for failure to access medical records has already been 

adjudicated by the trial court and upheld on appeal by the [Court of Appeal]” 

and therefore “repeating these allegations . . . is improper.” 
10

On the second cause of action, Sharp argued the intentional 

misrepresentation claim was barred by the collateral estoppel doctrine 

because the Flores I court found Flores did not meet his burden on a 

fraudulent concealment medical malpractice tolling theory. 

On the third cause of action, Sharp argued: (1) Sharp does not employ 

Dr. Kobernick, and is not legally permitted to employ physicians; (2) Flores

cited only to the regulation applicable to skilled nursing facilities; and (3)

Flores’s “previous cause of action for failure to access medical records has 

already been adjudicated by the trial court and upheld on appeal by the 

Court of Appeal.”

In opposition, Flores asserted he adequately alleged facts identifying 

Sharp’s alleged wrongdoing and the basis for tolling. Regarding Sharp’s duty 

owed to him, Flores said he cited to the “wrong section number of Title 22” 

and can amend his complaint to cite another regulatory section (Cal. Code

Regs., tit. 22, § 70749), which governs recordkeeping requirements applicable 

to acute care hospitals such as Sharp. He also said he could amend his 

complaint to allege Sharp owes a duty for the conduct of Dr. Kobernick and 

Dr. Hoagland because they are “considered” Sharp doctors and have 

privileges at Sharp.

After a hearing, the court sustained the demurrer without leave to 

amend. The court found Flores failed to state a claim under his first and 

third causes of action because he did not identify a viable theory for showing 

that Sharp can be held liable for medical malpractice and, alternatively, he 

failed to plead specific facts showing his “lack of legal capacity precluded him 

from caring for his property and transacting business affairs, and/or 

understanding the nature of his acts . . . .” 
11

On his second cause of action for intentional misrepresentation, the 

court stated Flores “was not granted permission by the Court o[f] Appeal or 

this court to plead a count for intentional misrepresentation . . . . Also, the 

Court of Appeal held plaintiff did not meet his burden for an amendment on a 

fraudulent-concealment theory.” 

The court denied Flores’s request for leave to amend his complaint, 

stating: “[I]t is ordinarily an abuse of discretion to deny [this request] unless 

the inability to state a valid cause of action is clear. . . . [Flores] has the 

burden to show in what manner he can amend the amended complaint and 

how the amendment will change the legal effect of the pleading. . . . [Flores] 

makes no effort to comply with this requirement. He has had several 

pleading opportunities.” 

DISCUSSION

I. Review Standards

A demurrer tests the sufficiency of a pleading as a matter of law. In 

reviewing an order sustaining a demurrer, we examine the complaint 

independently to determine whether it alleges facts stating a cause of action 

on any legal theory. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1230.) “We 

‘adopt[ ] a liberal construction of the pleading and draw[ ] all reasonable 

inferences in favor of the asserted claims.’ [Citation.] We are not bound by 

the trial court’s reasoning and may affirm the judgment if correct on any 

theory.” (Robertson v. Saadat (2020) 48 Cal.App.5th 630, 639.) 

“We review the trial court’s refusal to grant leave to amend under the 

abuse of discretion standard.” (Villafana v. County of San Diego (2020) 57 

Cal.App.5th 1012, 1017.) The court abuses its discretion if there is a 

reasonable possibility an amendment would cure the defects. (Minnick v. 

Automotive Creations, Inc. (2017) 13 Cal.App.5th 1000, 1004.) The appellant 
12

has the burden to identify specific facts showing the complaint can be 

amended to state a viable cause of action. (Ibid.) An appellant can meet this 

burden by identifying new facts or theories on appeal. (Ibid.)

II. First Cause of Action

Flores’s first cause of action is labeled “Professional Negligence,” but 

his allegations assert only a claim that Sharp violated its regulatory duty to 

“keep accurate medical records” regarding Flores’s “cardiac evaluation, 

testing, diagnosis, or treatment,” and provide those records to Flores (or his 

agents) upon request. 

This claim is barred by the law of the case doctrine. In Flores I, we 

stated the trial court ruled that Flores’s cause of action for Sharp’s failure to 

provide him with his medical records did not state a viable cause of action 

under California law. And we specifically upheld this conclusion because 

Flores did not assert any argument challenging the court’s ruling. (Flores I, 

supra, D071993.)

This determination was law of the case and was binding on Flores in all 

later proceedings in the case. “The law of the case doctrine [provides] that 

when . . . an appellate court ‘states in its opinion a principle or rule of law 

necessary to the decision, that principle or rule becomes the law of the case 

and must be adhered to throughout its subsequent progress, both in the lower 

court and upon subsequent appeal . . . .’ ” (Kowis v. Howard (1992) 3 Cal.4th 

888, 892-893; accord Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.)

Under this doctrine, “the case may not go over ground that has been covered 

before in an appellate court [opinion].” (Sargon Enterprises, Inc. v. University 

of Southern California (2013) 215 Cal.App.4th 1495, 1506.) 

The doctrine applies if the prior appeal came after a trial or “a decision 

short of a full trial,” such as “a judgment on a demurrer . . . .” (Hotels 
13

Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 356; 

Bergman v. Drum (2005) 129 Cal.App.4th 11, 15, fn. 3.) The rule “serves to 

promote finality of litigation by preventing a party from relitigating questions 

previously decided by a reviewing court.” (George Arakelian Farms, Inc. v. 

Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291.)

In Flores I, we upheld the court’s ruling dismissing Flores’s claim that 

Sharp breached a duty by failing to keep and provide records to him in 2014. 

He reasserted this same claim in his fourth amended complaint. Under the 

law of the case doctrine, our prior holding bars the identical claim in this 

case. 

III. Second Cause of Action

On Flores’s second cause of action for intentional misrepresentation, 

Sharp argued this claim was barred by the collateral estoppel doctrine

because the Flores I court had rejected his contention his medical malpractice 

claim could be tolled on an alternate theory of fraudulent concealment. 

Collateral estoppel does not apply because there was no prior 

judgment. (See Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 

Cal.3d 903, 910.) Additionally, the law of the case doctrine does not apply 

because the issue is not the same. (See Searle v. Allstate Life Ins. Co. (1985) 

38 Cal.3d 425, 434 [law of the case doctrine “precludes multiple appellate 

review of the same issue in a single case,” italics added].) The issue whether 

a plaintiff has properly pled an intentional misrepresentation claim 

(governed by a three-year limitations period) is factually and legally distinct

from the issue whether tolling applies to a medical malpractice claim. The 

viability of an intentional concealment cause of action was not addressed or 

resolved in Flores I. 
14

But Flores’s intentional misrepresentation claim fails as a matter of 

law on two independent grounds.

First, this court gave specific directions providing Flores with the 

opportunity to plead facts showing a tolling of the medical malpractice 

limitations period, and this did not encompass the right to add new causes of 

action to the complaint such as an intentional misrepresentation claim. 

When an appellate court remands a matter to a lower court with specific 

directions, the parties must adhere to those directions, and the court has the 

power “to act only in accordance with the direction of the reviewing court.” 

(Hampton v. Superior Court of Los Angeles County (1952) 38 Cal.2d 652, 655; 

see Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859; In re 

Justin S. (2007) 150 Cal.App.4th 1426, 1434-1435; see also York v. Strong

(2015) 234 Cal.App.4th 1471, 1477-1478.)

Second, the intentional misrepresentation claim fails because it was 

not pled with the required specificity. (See Lazar v. Superior Court (1996) 12 

Cal.4th 631, 638; accord Golden Eagle Land Investment, L.P. v. Rancho Santa

Fe Assn. (2018) 19 Cal.App.5th 399, 428.) To state a viable intentional

misrepresentation claim, the plaintiff must plead “ ‘ “facts which ‘show how, 

when, where, to whom, and by what means the representations were 

tendered.’ ” ’ ” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California

(2016) 245 Cal.App.4th 821, 838.) And to plead this claim against a 

corporation, “ ‘the plaintiff must specifically “allege the names of the persons 

who made the allegedly fraudulent representations, their authority to speak, 

to whom they spoke, what they said or wrote, and when it was said or 

written.” ’ ” (Ibid.) This rule provides the necessary notice to a corporate 

entity, and serves to “ ‘weed out’ ” unmeritorious fraud claims. (Ibid.) 
15

Flores’s allegations do not meet these standards. Flores did not allege

who made the alleged false misrepresentation; how this misrepresentation

was made; to whom it was made; the date it was made; or facts supporting 

that any such statement was knowingly false, i.e., that records of any 

treatment at Sharp in 2008 in fact existed in 2014 and, if they did exist, the 

person who made the representation would have known of their existence. 

Flores also has not demonstrated he can amend his complaint to 

provide the required specificity. In his appellate brief, he identifies 

individuals at the hospital “front desk” who allegedly failed to provide him 

with his medical records. However, this conduct allegedly occurred in 2016 

and 2020, long after his claimed damages in 2014. Moreover, he identifies no 

facts showing that these individuals were aware of the existence of the 

medical records and intentionally concealed the records from him.

IV. Third Cause of Action

In his third cause of action, Flores alleged that Sharp breached a duty 

when it “negligently selected, retained, and/or allowed to practice . . . health 

care practitioners who were improperly trained and/or otherwise not 

competent to care for its patients or maintain medical records in accordance

with the provisions of 22 CCR § 72543,” including Dr. Kobernick. This cause 

of action contains two separate claims: (1) a professional negligence claim 

against Sharp based on Dr. Kobernick’s services; and (2) a negligence claim 

based on Sharp employees’ failure to properly “maintain medical records.” 

To the extent this cause of action seeks to hold Sharp liable for the 

health care provided by Dr. Kobernick based on injuries allegedly incurred in 

2014, Flores does not specially address this claim in his appellate briefs and 

it is therefore forfeited. (See Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-

656; Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.) 
16

Moreover, this claim is time barred. As we held in Flores I, to establish 

tolling for a malpractice claim under section 352, subdivision (a) based on 

legal incapacity, a plaintiff must plead that during the relevant times he was 

“ ‘incapable of caring for his property or transacting business or 

understanding the nature or effects of his acts . . . .’ ” (Flores I, supra,

D071993.) 

In his fourth amended complaint, Flores alleged he “lacked the legal 

capacity to make decisions from June 9, 2014 to . . . November 16, 2016” 

because he “was receiving medical treatment including . . . multiple brain 

surgeries, a shunt implant for his brain, decompression for his brain [and] 

many other procedures.” But Flores did not state this medical treatment left 

him “ ‘incapable of caring for his . . . property or transacting business or 

understanding the nature or effects of his . . . acts . . . ,’ ” which was the legal 

standard identified in our Flores I decision. (Flores I, supra, D071993.) Nor 

did he allege the necessary specific facts supporting the claim. (Ibid.) A 

surgery and/or medical procedures do not necessarily incapacitate a person 

for two years. Flores was given clear instructions that he needed to plead 

specific facts, in good faith, showing he was legally incapacitated during the 

entire relevant time period. He did not do this, and thus his claim is time 

barred (even if it was not forfeited by his failure to address this claim in his 

appellate briefs).

On the portion of his negligence claim pertaining to Sharp employees’ 

failure to provide medical records, this claim is identical to the first cause of 

action, and fails for the same reason under the law of the case doctrine. The

claim was adjudicated in Flores I, and thus Flores is barred from relitigating

it. 
17

V. Additional Contentions

In his appellate brief, Flores contends that Judge Taylor was biased 

against him based on the court’s questions to him regarding why the Court of 

Appeal remanded the case and its manifesting impatience with him and his 

claims. We have carefully reviewed the record, and find no evidence of bias. 

To the contrary, Judge Taylor showed commendable tolerance and 

understanding by allowing Flores leave to amend after filing an essentially 

incomprehensible third amended complaint. After permitting Flores to fully 

assert his arguments orally and in writing, the court issued a lengthy written 

ruling explaining the legal rationale underlying each of its conclusions. The 

record does not support any indication of bias whatsoever. 

Flores appears to again challenge the court’s prior ruling quashing his 

subpoenas. Because he did not reassert his arguments regarding discovery in 

the remanded proceedings, this argument is not properly before us. 

Moreover, our Flores I ruling that the court did not err in quashing the 

deposition subpoenas is law of the case and thus relitigation of this issue is 

barred. 

DISPOSITION

We affirm the judgment. The parties to bear their own appellate costs.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.