Nichols v. Alghannam - Order Modifying Opinion

1 Filed 3/6/26 (unmodified opn. attached) CER TIFIED FOR PUB LICA TION IN THE COUR T OF APPEAL OF THE ST A TE OF CA LIFORNIA THIRD APPELLA TE DISTRICT (Y uba) ---- LORI NICHOLS et al., Plaintiffs and App ellants, v. MUHAMMAD ALGH ANNAM, Defendant and Respon dent. C100433 (Super. Ct. No. CVPO1 9- 01872) ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COUR T: It is ordered that the opinion filed in this case on February 18, 20 26, be modified as follows: 1. On page 12, to the thre e references to “Civil C ode section 3333.2, subdivision (c)(2),” add “former” b efore “subdivision” so that the refere nces read: “Civil Code section 3333.2, f ormer subdivision (c)(2).” 2. On page 12, following the first reference to Ci vil Code section 3333.2, former subdivi sion (c)(2), add as f ootnote 4 the followin g footnote, which will require renum bering of all subseque nt footnotes:

2 4 Civil Code section 33 33.2, former subdi vision (c)(2) was renumbered as sub division (j)(4) effective January 1, 2023. (Stats. 2022, ch. 17, § 3.) There is no change in t he judgment. /S/ RENNER, Acting P. J. /S/ MESIW ALA, J. /S/ FEINBERG, J.

1 Filed 2/18/26 (unmodified version) CER TIFIED FOR PUB LICA TION IN THE COUR T OF APPEAL OF THE ST A TE OF CALIFOR NIA THIRD APPELLA TE DISTRICT (Y uba) ---- LORI NICHOLS et al., Plaintiffs and App ellants, v. MUHAMMAD ALGH ANNAM, Defendant and Respon dent. C100433 (Super. Ct. No. CVPO1 9- 01872) APPEAL f rom a judgm ent of the Superior Cou rt of Y uba County, Stephen W. Berrier, Judge. Affirmed. Nicholas R. Deal and Glenn A. Ellis (ad mitted pr o hac vice) for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza, Nathan J. Novak; Low McKi nley & Salenko, Steven M. McKinley, and George E. W a shington for Defendant an d Respondent.

2 Plaintiffs Lori Nichols, Randy Robinson, Darren Robinson, and Mich elle Robinson (together, pla intiffs) appeal from a judgment of dismissal e ntered after the trial court sustained the demurrer of de fendant Muhammad Alghannam, M.D. (Alghannam) to their fifth amended c omplaint without le ave to amend. Plaintiffs su ed Alghannam and others for professional negligence a nd elder abuse follo wing the death of their m other, Sandra Robinson (Sand ra). The trial court sustained Alghannam’ s demurrer on t he grounds that plaintiffs’ negligence ca uses of ac tion were time-barre d and their co mplaint failed to allege conduct that qualified as elder abuse. W e affirm. I. BACKGROUND Sandra had an implante d Medtronic infusi on pump, whic h was manag ed by Alghannam. The pump delivered a contin uous infusion of fentan yl for pain man agement and allowed Sandra to self -administer additio nal doses through the u se of an actuator. Sandra was referred t o Dr. Michael Fahey of The Fremont-Rideo ut Health Group doing business as Ride out Health (Rideou t) for an apparently unrel ated health cha llenge involving difficulty swallowing an d substantia l weight loss. Fahey re commended laparoscopic paraeso phageal hernia r epair with feeding tu be placeme nt. The surgery was performed on or about July 23, 2018. Following the surgery, Sandra cont inued to re ceive infusions of fe ntanyl throug h her pain pump and cont inued to self-admin ister fentanyl th rough the p ain pump’ s actuator. Rideout’ s clinical staff observed changes in Sandra’ s ment al status, which wer e brought to Fahey’ s atte ntion. The actuator was not remo ved. Sandra died from an overdose of fentanyl o n August 4, 2018. 1 One of Sandra’ s daught ers commenced the i nstant action on Nove mber 4, 2019. The initial complaint a sserted the followi ng causes of action agai nst Rideout an d Does 1 1 Plaintiffs’ opening brief states that Sandra die d on July 23, 2018. W e will assu me the actual date of death was August 4, 2018, the date alleged in the plead ings.

3 through 50: (1) pr ofessional negligence, (2) lack of infor med consent, (3) wrongf ul death, and (4) loss of c onsortium. The initial complaint did not include any allega tions concerning Alghannam or the pain pump. The pleadings were am ended several times ov er the next couple of years. Sandra’ s other adult children joi ned the action as plaint iffs, and additional me dical professionals were named as defenda nts. The pain pump made its first a ppearance in plaintiffs’ third amended complaint, which was fil ed on September 2, 2020. Alghannam made hi s first appearance in the fourth amended c omplaint, which was filed on July 31, 2023. The operative fifth ame nded complaint was fil ed on November 2, 202 3. The fifth amended complaint foc uses primarily on Fahey’ s role as treating physician, both before and after surgery. As relevant here, the fifth amended complaint a lleges Rideout ’ s hospital policy “require d consultation wit h the doctor managing th e pump and identifyin g the strength, dose, f requency and a ny additional parame ters that clari fy the safe use of the implanted device.” Fahey is alleged to ha ve violated Rideout’ s polic y by failing to consult with Alghanna m before Sandra’ s s urgery. “As a result,” t he fifth amended complaint says, “Dr. Fa hey did not know the st rength, dose, freque ncy or functionality of [Sandra’ s] pain pump o r of her previous us e of the actuator.” The fifth amended com plaint suggests the pro blem grew worse after surgery. Fahey allegedly ordere d an additional fenta nyl prescriptio n for Sandr a, over and above the doses she was r eceiving throu gh the pain pump. The fifth amende d complaint alleges Fahey placed the order without contacting Alghannam or directing anyone from t he pharmacy or clinical st aff to do so. W orse, th e fifth amended com plaint alleges Fahey failed to act upon learning that Sa ndra was continuing t o self -admini ster fentanyl after surgery and experiencing observable chang es in mental s tatus. Here is where Alghann am allegedly enters the picture. According to plaintiffs: “Dr. Fahey knew that Dr. Alghannam wa s not allowed to see patie nts in the hos pital but asked him to come in anyway in a n ef fort to conceal his fa ilure to properly handle

4 [Sandra’ s] pain pump.” The fifth amended complaint do es not specifically say that Alghannam saw Sandr a at Rideout follow ing her surgery. However, the fifth amended complaint alleges Alghannam viol ated the Eld er Abuse and Depen dent Adult Civil Protection Act (W elf. & Inst. Code, § 15600 et seq.; the Elder A buse Act) by “treating [Sandra] without havin g valid staff privileges at Rideout, ” “treating [Sandra] wit hout obtaining valid consent,” and “failing to tur n off [Sandra’ s] pain pum p as requested by Dr. Fahey.” The fifth amended complaint doe s not contain any o ther substantive allegations describing Alghanna m ’ s role in ca ring for Sandra. The fifth amended com plaint asserts five ca uses of action against Alghannam, as follows: (1) professional negligenc e (first cause of action), (2) lack of informed consent (second cause of action), (3) wrongful death (third cause o f action), (4) negligent infliction of emoti onal distress (fo urth cause o f action), and (5) elder abuse (sixth cause of action). Alghanna m demurred t o the fifth amended complaint on statute of li mitations grounds. Alghanna m also argued the fifth amended comp laint failed to state facts sufficient to constitute a cause of action for e lder abuse. The trial court sustained the demurrer without leave to amend. 2 The trial court subs equently entere d judgment for Alghannam. This appeal timely followed. II. DISCUSSION A. Standar d of Review “ ‘In reviewing an order sustainin g a demurrer, we examine the opera tive complaint de novo to determine wh ether it alleges facts sufficient to state a cause of action under any legal theory.’ ” (M athews v. Becerra (2019) 8 C al.5th 756, 768; accord, T.H. v. Nov artis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) When evaluating the 2 The trial court’ s si gned order does not ap pear to have been made part of our record.

5 complaint, we “ ‘accept the truth of material facts properly pleade d in the operative complaint, but not contentions, deduction s, or conclusions of fact or l aw.’ ” (Capito v. San Jose Healthcare System, L.P. (2024) 17 Cal.5th 274, 280; see also Nolte v. Cedars- Sinai Medical Center (2015) 236 Cal.Ap p.4th 1401, 1406 [“we ac cept as true ev en the most improbable al leged facts, and we do not concern our selves with the plaintiff ’ s ability to prove its factual allegations”].) “ ‘ “ ‘A demurrer based on a statute of limi tations will not lie w here the action may be, but is not necessarily, barred. [Cit ation.] In order for the bar . . . to be rai sed by demurrer, the defect must clearly and affirmatively appear on the fac e of the complaint; it is not enough that the complaint shows t hat the action ma y be barred. ’ ” ’ ” (Lee v. Hanley (2015) 61 Cal.4 th 1225, 1232; see also Silva v. La ngfor d (2022) 79 Cal.A pp.5th 710, 716 [“ ‘ “ ‘[A] demurrer based on an a ffirmative defense will be sustained only where the face of the complaint d iscloses that the action is necessa rily barred by the defense’ ” ’ ”].) If “ ‘the complaint ’ s allegations or judici ally noticea ble facts reveal the existence of an affirmative defense, the “plaintiff must ‘plead around’ the defense, by alleging specific facts that would a void the apparent defense. ” ’ ” (E sparza v. County of Los Angeles (2014) 224 Cal.App.4th 45 2, 459.) The application of an affirmative defense on demurrer based on f acts alleged in the co mp laint, such as the statu te of limitations, i s subject to de novo revi ew. (See Aryeh v. Canon Busines s Solutions, Inc. (2013) 55 Cal.4th 1 1 85, 1 191.) When a trial court has sustained a demurrer without leave to amen d, “we decide whether there is a reaso nable possibility that the defect can b e cured by amendment: if it can be, the trial court has abused it s discretion and we reverse; if not, there has b ee n no abuse of discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 31 1, 318.) “The burden of proving such reasonable possibi lity is squarely on the plaintiff.” (Ibid.)

6 B. Statute of Limitations A plaintiff must bring a claim within the li mitations period after acc rual of the cause of action. (Code Civ. Proc., § 312.) 3 Generally speaking, a c ause of action accrues “when the cause of action is comp lete with all of its elements,” inc luding the wrongful act and resulting harm. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) The most important ex ception to the accrual r ule is the discovery rul e, which postpones accrual until the plaintiff discovers, or has reason to discover, the cau se of action. (Ibid.) The discovery rule “ma y be expressed by the Legislature or implied by the courts.” (Ibid.) The statute of limitatio ns applicable to medica l malpractice actions is found in section 340.5, which pr ovides: “In an actio n for injury or death again st a health care provider based upon su ch person’ s alleged professional negligence, the time for t he com mencement of acti on shall be three yea rs after the date of injur y or one year a fter the plaintiff discovers, or through the use of re asonable dilige nce should have discov ered, the injury, whi chever occu rs first.” The general rule applie s to the three -year per iod, which r uns from the date of injury. (§ 340.5; see also Artal v. Allen (2003) 1 1 1 Cal.App.4th 273, 282 [“Irrespective of the one -year provision of section 340.5, it s three-year provi sion ‘prov ides an outer limit which terminates all m alpractice liability and commences to run when the patien t is aware of the physical manifestati ons of her injury with out r egar d to awar eness of the negligent cause ’ ”].) The discover y rule applies to the on e-year per iod, and postpones accrual until “the plaintiff discovers, or through the use of reasona ble diligence should have discovered, the in jury.” (§ 340.5.) The action must be filed within both time periods to be timely. (Rose v. Fife (1989) 207 Cal.App.3d 760, 767-768.) 3 Undesignated statutor y references are to the Code of Ci vil Procedure.

7 “The term ‘injury’ for purposes of section 340.5 ‘ “refer[s] to the damaging effect of the alleged wrongful act and not to the ac t itself.” [Citation.] The injury is no t necessarily the ultimate harm suffered, but instead occurs at “the point at which ‘a ppreciable harm’ [is ] first manife sted.” ’ [Ci tation.] An injury mani fests when damage is ‘evidenced in so me significant fashion; when the damag e has clearl y surfaced and is noticeable.’ ” (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 779.) W e will a ssume for argument’ s sake that Sandra’ s i njury manifested on A ugust 4, 2018, the date o f her death. Alghannam was named as a defendan t for the first time on July 31, 2023, some five years later. Plainti ffs’ first thr ough fourth causes of ac tion, whic h sound in medical malpractice, thus ap pear time-barred as to Alg hannam on the face of the fifth amended complaint. Plaintiffs ar gue their first through fourth cause s of action are not time -barred for three reasons. First, they argue section 340.5 does not apply. S pecifically, they argue Alghannam’ s alleged a cts were not “professio nal negligence” within the meaning of section 340.5. Instead, they say se ction 335.1 supplies th e applicable statute of limitations. Section 33 5.1 provides a two -year statute of limitations f or ordinary negligence, subject to t he discovery rule, w hich “postpon es accrual of a cause of ac tion until the plaintiff discovers, or has reason t o discover, the cause of action.” (Nor gart, supra, 21 Cal.4th at p. 397.) Relying on section 335.1, plaintiffs assert they discovered Alghannam’ s role in Sa ndra’ s post-surgical care in a depos ition on Jul y 29, 2022, and timely named him as a defendant on July 31, 2023. Thus, plaintiffs reason that their claims against Alghannam are timel y so long as section 335.1 supplies the applica ble statute of limitations, rather than se ction 340.5. Our firs t task, then, is to decide whether section 340.5 applies. Second, plaintiffs ar gue that, assuming sectio n 340.5 applies, th e statute was tolled. Specifically, th ey argue Al ghannam engaged in i ntentional c oncealment which tolled the statute’ s three -year period. Finally, plaintiffs ar gue the orig inal complaint was

8 ti mely, and Alghannam was proper ly substitut ed for one of the origin al Doe defendants pursuant to section 474. W e address these arguments in turn. 1. Applicability of Section 340.5 Section 340.5 is part of the Medical Injury Compensation Refor m Act (Stats. 1975, 2d. Ex. Sess. 197 5-1976, § 1; MIC RA), “a comprehe nsive package of legisl ative reforms intended to remedy the s piraling costs of medical malprac tice insurance.” (Gutierr ez v. T ostado (2025) 18 Cal.5th 222, 236.) “The Legislature adopted several measures intended t o have such an ef fect. These measure s included amending t he statute of limitations for medi cal negligence claims to: (1) shorten the o uter limit for filing medical negligence cl aims from four to thr ee years; (2) expand cove red medical professionals to includ e additional categorie s of health care provid ers; (3) rephra se the description of covered actions to include a ny ‘action for injury or death against a health care provider based upon such per son’ s alleged professional negl igence’; and (4) add the definition of ‘professio nal negligence’ that appears today.” (Ibid.) Plaintiffs argue section 340.5 does not apply becau se Alghannam’ s allege d acts fall o utside of the statutory definition of “ professional neglig ence.” W e are not co nvinced. Section 340.5, subdivis ion (2) defines “prof essional negligence” as follows: “ ‘Professional neglige nce’ means a negligent act or omis sion to act by a health car e provider in the renderi ng of professional services, which act or o mission is the p roximate cause of a personal injury or wron gful death, provided that such servi ces are wit hi n the scope of services for which the provider is licensed and which are not within any r estriction imposed by t he licensing agency or licensed hospital.” (Italics added.) Plaintiffs focus on the italicized lan guage. They suggest Alghan nam’ s postsurgical treatment of Sandra does not satis fy the statutory definiti on of “profe ssional negligence” because it fell within a restriction imposed by a licensed hospital. Sp ecifically, the y suggest Alghannam vio lated restrictions im posed by Rideout by t reating Sandra without having the staff privileges necessar y to properly do so. Plaintiffs’ argument is not

9 without some force. A fter all, a hospital’ s decision to suspend or den y a physician ’s staff privileges can be fair ly characterized a s a “restriction” on that physician’ s ability to practice medicine there. (El -Attar v. Hollywood Pr esbyterian Med ical Center (20 13) 56 Cal.4th 976, 983 [“In o rder to practice at a h ospital, a physician m ust be granted s taff privileges”].) All the s ame, we think plaintiffs read too much into th e exclusion of services “within any re striction imposed by . . . [a] licensed hospital” from the statutory definition of “professio nal negligence” (§ 340.5, subd. (2)). MICRA uses the same definition of “profe ssional negligence” in seve ral places. (See, e.g., §§ 364 [requ iring filing of notic e of intent to sue and es tablishing 90 -day waiting period], 667.7 [authorizing periodic p ayments of future ec onomic damages], 1295 [requiring unifor m language for arbit ration provisions in contracts for med ical services]; see also C iv. Code, § 3333.2 [li miting recovery of noneco nomic dama ges to $350,000], Bus. & Prof. Code, § 6146 [li miting recovery of attorne y fees in profe ssional negligence cases].) Our Supreme Court considered the pr oviso exclu ding services “within any restriction imposed b y the licensing agency or license d hospital” from the definition of “professio nal negligence” (§ 340.5, subd. (2)) in W aters v. Bourhis (1985) 40 Cal.3d 424 (Bourhis). There, the plaintiff had seen a psychiatri st who allegedly induced her to “parti cipate in sexu al conduct by suggest ing that it w as part of therapy designed to alleviate he r sexual inhibition s, and at other times he c oerced her to participate by threateni ng to have her insti tutionalized if s he did not cooperate.” (Id. at p. 428.) She retained an attorney—the defend ant— to sue th e psychiatris t for medical malpractice and inten tional infliction of e motional distres s. (Id. a t pp. 428-429.) The case settled before trial, and the attorney ret ained a higher percenta ge of the settlement amount than would have been allow ed under Business and Profes sions Code section 6146. (Bourhis, supra, at pp. 427 -428.) The plaintiff sued the attorne y to recover the retained fees, and the a ttorney defended on the ground th at the underlying actio n was not based on “professional negligence.” (Id. at p. 430.) The attorney argued, “because

10 sexual misconduct by a psychiatrist towar d a patient has l ong been a basis for dis ciplinary action by the state’ s licensing agen cy [citation], any cause of action which is based on such misconduct fa lls within the proviso, as a ‘restriction imposed by the licensing agency.’ ” (I d. at p. 436, fn. omit ted.) The high court rejected the attorney’ s argument, stating the proviso “wa s not intended to e xclude an action from [Business and Professions Code] secti on 6146—or the re st of MICRA —simply beca use a health care provider acts contrary t o professional stan dards or engages in one of the many sp ecified instances of ‘unprof essional condu ct.’ Instead, it was simply int ended to render MICRA inapplicable when a provider opera tes in a capacit y for which he is not licensed — for example, when a psychologist perf orms heart surgery.” (I bid.) The court concluded “the psychiatrist’ s conduct a rose out of the cour se of the psychi atric treatment he was l icensed to provide,” and wa s therefore “profe ssional negligence” w ithin the meaning of Business and Professions Code s ection 6146. (Bou rhis, supra, at p. 436.) Our Supreme Court ag ain considered the s tatutory definit ion of “professional negligence” in Lopez v. Ledesma (2022) 12 Cal.5th 848, 862 (Lopez). Lopez involved physician assistants, w hose governing sta tute, the Physician As sistant Practice Act (Bus. & Prof. Code, § 3 500.5 et seq.; Ph ysician Assistant Practi ce Act), “ only authorized [them] to perform services ‘ when the services are rendered under the supervi sion of a licensed physician and surgeon.’ ” (Lopez, supra, at p. 858.) The physician assistants the re misdiagnosed a les ion while work ing at a dermatology c linic, with li ttle to no supervision by the doctor who own ed the clinic. (Id. at p. 854.) Inter preting Civi l Code section 3333.2, the high court concluded, “a physi cian assistant practices within the sco pe of his or her license for pur poses of MICRA ’ s c ap on noneconomic dama ges when the physician assistant acts as the agent of a lice nsed physician, perfor ms the type of services authorized by that agency relations hip, and does not engage in an are a of practice prohibited by the [Phys ician Assistant Pra ctice Act].” (Lo pez, supra, at pp. 861 -862.)

11 The Lopez court then c onsidered whether the physician assistant s’ conduct brou ght them within the provis o for services “ ‘within any restricti on imposed by the lic ensing agency or licensed hospital. ’ ” (Lopez, supra, 12 Cal.5th at p. 8 62.) The court reaffirmed Bourhis, emphasizing that the prov iso was not intended t o exclude an action from MICRA whenever “ ‘a health care provider a cts contrary to profes sional standards or engages in one of the many specif ied instances of “unprofession al conduct.” ’ ” (Ib id.) The Lopez court then o bserved that the Ph ysician Assistant Pract ice Act “provides several examples of r estrictions that, if im posed by the lic ensing agency, would limit a physician assistant’ s lic ense and place partic ular services outside t he ambits of MICRA.” (Lopez, supra, 12 Cal.5 th. at p. 863.) For exa mple, “[t]he Physic ian Assistant Board may issue a probationar y license that imposes ‘ [r]estrictions a gainst engag ing in certain types of medical services’ or ‘restrictions on issuing a drug order for controlled substan ces. ’ [Citation.] And when a physician assistant is a ccused of engaging in ‘unprofessional conduct,’ including the violation of the supervisory regulations at issue here, the Physician Assistant Bo ard may, after a hearing, impose ‘ probationary conditio ns upon a [physician assistant] lic ense.’ ” (Ibid.) The court explaine d: “Such p robationary condition would by definition amount to a ‘restriction imposed by the licensing agency.’ [Citation.] But unprofessional con duct, without more, does not. W e agre e with the Court of Appeal that ‘the “res triction” mentioned in this clause must be a limitation on the scope of a provider ’ s p ractice beyond simp ly the obligation to ad here to standard s of professional conduct.’ ” (Ibid.) T o hold other wise, the court reasone d, would allow medical malpractice plaintiffs to “avoid MICRA ’ s damages cap by identifying one member of a health c are team who violates a single regula tion govern ing that team.” (Ibid.) Accordingly, the court concl uded that physician assistant s do not render s ervices “ ‘within [a] restriction imposed by the licensing agency’ [c itation] simply by en gaging in unprofessional conduct, such as the nonco mpliance with superviso ry regulations a t issue in this case.” (Id. at p. 864.)

12 Neither Bourhis nor Lopez specifica lly address the proviso’ s excl usion for service s “not within any restriction imposed by th e . . . licensed hospital,” a s opposed to t he licensing agency. (§ 3 40.5, subd. (2).) Never theless, we find them instructive. As previously discussed, t he Lopez court obs erved that “ ‘ the “ restrictio n ” mentioned in [Civil Code sectio n 3333.2, subd ivision (c)(2) ] must be a limitati on on the scope of a provider ’ s practice bey ond simply the obligati on to adhere to stan dards of profe ssional conduct.’ ” (Lopez, supra, 12 Cal.5th at p. 863.) Granted, the court was talking about a restriction imposed by a licensing agency. But Civil Co de section 333 3.2, subdivision (c)(2) uses the word “r estriction” only onc e, which leads us to b elieve that a restriction imposed by a licen sed hospital, to trigger the proviso, must also be “ ‘ a limitation on the scope of a provider ’ s p ractice beyond simp ly the obligation to ad here to standard s of professional conduct. ’ ” (Lopez, supra, at p. 8 63.) And, since Civil Code section 3333.2, subdivision (c)(2) a nd section 340.5, sub division (2) are id entical, we think the re striction alleged to have been violated by A lghannam, to take his conduct outside of the definition of “professional neglig ence,” must equally be “ ‘a limitation on t he scope of [his] practice beyond simply the obli gation to adhere to stan dards of professi onal c onduct.’ ” (Lopez, supra, at p. 863; see als o Bourhis, supra, 40 Cal.3d at p. 4 36 [the pro viso “was simply intended to render M ICRA inapplicable w hen a provider o perates in a capacity for which he is not licensed”].) W ith these co nsideratio ns in mind, we now ret urn to the allegation s of the fifth amended complaint. T o reiterate, t he fifth amended comp laint allege s Alghannam violated the Elder Abus e Act by “treating [Sandra] without havin g valid staff privileges at Rideout.” The fifth amended complaint fur ther alleges: “Dr. Fahey k new that Dr. Alghannam was not all owed to see patients in the hospital but asked him to come in

13 anyway in an effort to conceal his failure to properly handle [San dra’ s] pain pump.” 4 The fifth amended complaint does not say that Alg hannam rendered ser vices to Sandra outside the scope of ser vices he was license d to provide. Nor does th e fifth amended complaint specify how Alghannam’ s staff privileges were lacking, or which restriction, if any, may ha ve been vio lated. Here, we note that “sta ff privileges” encompasses any number of arr angements between health care p rovider and hospital. (See Bus & Prof. Co de, § 805, subd. (a)(4) [“ ‘Staff privileges’ means any arra ngement u nder which a licentiate is allowed to practice in or provide c are for patients in a health facility”].) Thes e arrangements “include, but are not limited to, full staff privileges, active staff privileges, limited staff privileges, active staff privileges, limited staff privileges, auxiliary st af f privilege s, provisional staff privileges, temporary staff privileges, cou rtesy staff privileges, locum tenens arrangements, and contractu al arrangements to pr ovide profe ssional services, including, but not limited to, arrangements to provide out patient serv ice s.” (Ibid.) Again, the fifth amend ed complaint does not s pecify which staff privileges Alghannam allegedly l acked, or how he may have run afoul of an y restriction i mposed by Rideout. Given the afo rementioned range o f possibilitie s, we cannot say the allegation that Alghannam lacked staff privileges raises a n inference that he rend ered services to Sandra falling within “ ‘a limitation on the sco pe of a provider ’ s pract ice beyond simply the obligation to ad here to standar ds of professional cond uct.’ ” (Lop ez, supra, 12 Cal.5th at p. 863.) That being so, we have no basis for in ferring that Alghannam’ s alleged acts f ell outside the statutory definition of “professional neglig ence,” such that plaintiffs could be said to have plea ded around the s tatute of limitatio ns defense. And, 4 The fifth amended complaint thus suggests Alghannam acted w ithin the scope of his practice by providing t he type of service he was apparently license d to provide, i.e., pain management.

14 since plaintiffs do not propose any further amendments to their compl aint, we have no reason to believe they will be able to do so in the future. W e therefore conclude t he trial court properly applied section 340.5 in sustaining Alghannam’ s demu rrer to th e fir st through fourth caus es of action. 2. T olling fo r Intentional Concealme nt Assuming section 340. 5 applies, plaintiffs next argue the statute’ s thr ee -year limitation period w as tolled due to Alghannam’ s intenti onal concealment of his role in caring for Sandra. According to p laintif fs ’ opening brief: “Dr. Alghannam knew that he was prohibited from se eing patients at [Rideout] and inte ntionally attempted to c onceal his involvement by not making a note in the m edical chart and by le aving without havi ng any discussions with any of the clinical sta ff.” Plaintif fs’ opening brief also asse rts that Alghannam “snuck ont o [Sandra’ s] hospital fl oor to adjust her [f] e ntanyl pain pump.” None of these allegatio ns appear in the fift h amended complaint and plaintif fs do not propose to amend their pleading to include them. As previously discusse d, section 340.5 provides that an act ion for professional negligence against a he alth care provider m ust be filed within thre e years after the date of injury, “or one year aft er the plaintiff discovers, or through the u se of reasonabl e diligence should have discovered, the inju ry, whichever occurs fir st.” (§ 340.5.) Sectio n 340.5 further provides: “In no event shall t he time for commencem ent of legal act ion exceed three years unless tolled fo r any of the following: (1) up on proof o f fraud, (2) intentional conceal ment, or (3) the presenc e of a foreign b ody, which has no thera peutic or diagnostic purpose o r effect, in the person of the injured person.” “Intentional concealment ” must be specificall y alleged. (Donabe dian v. Manzer (1986) 187 Cal.App.3d 1021, 102 7.) Further more, the concealme nt must be in tentional. (Ibid.) Intentional con cealment does not usua lly occur as the resu lt of mere omissions or the exercise of poor judgment; thu s, plaintiffs must allege affirmative acts by the

15 defendant to adequatel y plead intentional c oncealment. (McNall v. S ummers (1994) 25 Cal.App.4th 1300, 1311-1312.) Plaintif fs do not meet these stan dards. The fifth amended com plaint alleges: “Dr. Fa hey knew that Dr. Alghannam was not allowed to see patie nts in the hospital but asked him to come i n anyway in an effort to conceal his failure to properly hand le [Sandra’ s] pain pump.” Contrary to plaint iffs’ suggestion, the fifth am ended complaint do es not say Alghannam “intentionally attempted to conceal his involvement by not making a note in the med ical chart and by leaving without ha ving any discussions with any of the cli nical staff.” Indeed, the fifth a mended complaint does not speci fically allege that Alghannam enga ged in any affirmative act of intentional concealment. Moreover, and perhaps m ore importantly, plaintiffs do not suggest that they could am end their complaint to so allege. Unde r the circumstances, we con clude plaintiffs have failed to sufficiently alle ge any factual basis for tolling the limitations period. 3. Relation Back Plaintiffs next ar gue their claims a gainst Alghannam are ti mely, be cause they relate back to their original compla int under section 474. This argument also fails. Section 474 allows a pl aintiff ignorant of the name of a defe ndant to designate tha t defendant by a fictitiou s name and amend t he complaint when the defendant’ s tru e name is discovered. 5 The amended complaint relates back to th e date of th e filing of the original complaint, allo wing the plaintiff to avoid the bar of the st atute of limitati ons. (Munoz v. Pur dy (1979) 91 Cal.App.3d 942, 9 46; Scher er v. Mark (1976) 64 Ca l.App.3d 834, 842.) A plaintiff has three years after the filing of th e original complaint in which to 5 Section 474 provides, in pertinent part: “ When the plaintiff is ignorant of the na me of a defendant, he must stat e that fact in the com plaint, or the affidavit if the action is commenced by affidavit, and such defendant may be desi gnated in any pleading or proceeding by any nam e, and when his true name is discovered, t he pleading or proceedings must be a mended accordingly.”

16 identify the fictitio usly named defendant. (§ 583.210, subd. (a); Munoz v. Purdy, supra, at p. 946.) 6 “Hence, the plaintiff can ‘file[] a timely comp laint under s ection 474 . . . . From the time such a c omplaint is filed,’ under section 58 3.210, subdivision (a), he ‘has three years,’ and the machinery of discovery, ‘to identify. . . the defe ndant,’ ame nd the complaint, and ‘serve [him]. . . , effectively enlarging the . . . limitations period of three years’ through the d octrine that the amende d complaint ‘r elates back’ to the original one.” (Nor gart, supra, 21 Cal.4 th at p. 3 98.) Plaintiffs here filed their original complain t on November 4, 201 9. The complaint named Rideout and Do es 1 through 50 as defendants. Al ghannam wa s named as a defendant for the first t ime in the fourth a mended complaint, filed on July 31, 2023. 7 Assuming without deciding that t he relation back doctrine applies here, we concl ude plaintiffs failed to timely serve the fourth amended compl aint on Alghannam within the time required by sec tion 583.210, subdiv ision (a). The trial court pro perly sustained Alghannam’ s demurrer to the first through fou rth causes of action. C. Elder Abuse Plaintiffs ar gue the trial court erred i n sustainin g Alghannam’ s demurr er to the sixth cause of actio n for elder abuse. The trial court sustained the demurrer on the groun d the fifth amended co mplaint failed to alleg e that Alghan nam had an y caretaking or 6 Section 583.210, subdi vision (a) provides, in pertinent par t: “The summons an d complaint shall be served upon a d efendant within thre e ye ars after th e action is commenced against the defendant.” 7 The fourth amended complaint also name d Does 1 throu gh 50, indicating that Alghannam was not su bstituted for a fictitiously named pa rty, as requ ired by section 474. (See generally W oo v. S uperior Court (19 99) 75 Cal.App. 4 th 169, 176 [“the new defendant in an amend ed complaint [must ] be substitute d for an existing fictiou s Doe defendant”].) Regard less, we assume that was plaintiffs’ intent. (I d. at p. 177 [“t he courts of this state have considered nonco mpliance with the party sub stitution requirements of section 474 as a pr ocedural defect that cou ld be cured and have been lenient in permittin g rectification o f the defect”].)

17 custodial relationship with Sandr a, as required for an elder abuse c ause of action based on a theory of neglect. (See generally, W inn v. Pioneer Medic al Gr oup, Inc. (2016) 63 Cal.4th 148, 155 (W inn) [“a claim of neglect u nder the Elder Abuse A ct requires a caretaking or custodial relationshi p —where a person has assumed sig nificant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able -bodied and fully competent a dult would ordinarily b e capable of managing without assistance”].) Pla intif fs do not address that ple ading failure, le t alone suggest how they migh t correct it. Instead, they pivot to a different theory of elder abuse: namely, that Alghanna m physically abused Sa ndra. 8 This theory also fails. “The [Elder Abuse Act] affords certain protections to elde rs and dependent adult s. Section 15657 of the W elfare and Institutio ns Code provides hei ghtened remedie s to a plaintiff who can prove ‘by clear and convi ncing evidence that a defendant is lia ble for physical abuse as de fined in [W elfare and Institutions Code ] [s] ection 15610.63, or neglect as defined in [W elfare and Instit utions Code] [s] ection 15610.57,’ and who can demonstrate that the de fendant acted with ‘r ecklessness, oppress ion, fraud, or mal i ce in the commission of this abuse.’ ” (W inn, supra, 63 Cal.4th at p. 1 52.) “Physical a buse” includes assault as defined in Penal Code section 240 and battery as d efined in Penal Code section 242. (W e lf. & Inst. Code, § 156 10.63, subds. (a) a nd (b); see also Pen. Code, §§ 240 [“An ass ault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of an other”], 242 [“ A battery is any willful and unlawful use of force o r violence upon the person of another”].) Plaintiffs ar gue Alghannam committed assault and battery by sneakin g into Sandra’ s hospital room and adjusting her pain pump. But the fift h amended complaint does not say any of tho se things. The fifth am ended complaint says only that Fahey 8 Plaintiffs also advance a neglect theory; ho wever, given their failure t o address the pleading issue, we nee d not consider it.

18 asked Alghannam to co me to Rideout and Alghannam treated San dra in some unspecifie d way. It doe s not say Alghannam adjusted Sandra’ s pain pump or touched her in any way. (See, e.g., People v. Rocha (1971) 3 Cal.3d 89 3, 899, fn. 12 [“ ‘It has long been established, both in tort and criminal law, that “the least touching” may constitute battery. In other words, for ce against the p erson is enough, it need not be viol ent or severe, it need not cause bodily harm or even pain, and it need not leave any mar k’ ” ].) Nor does the fifth amended complaint allege Al ghannam undertook an y specific act likely to result i n a touching. (People v. W yatt (2012) 55 Cal. 4th 694, 702 [“ No actual touching is n ecessary [for assault], but the defendant mu st do an act likely to re sult in a touching, however slight, of another in a h armful or offensive manner”].) Although the f ifth amended complaint generally alleges Algha nnam treated Sandra, a nd treating s omeone may involve touching, we are not at all c onvinced that such a b arebo nes allegation wo uld be sufficient to state a cause of action for elder abuse based on physical abuse. W e need not resolve that question, however, as the fifth amended comp laint does not allege Alghannam “acted wit h ‘recklessness, op pression, fraud, or mali ce in the com mission of this abuse.’ ” (W inn, supra, 63 Cal.4th at p. 1 52.) As the Court of Appeal for the First District, Division On e recently explained: “The degree of opprobrium require d for liability under the Elder A buse Act is substantial. ‘[A] plaintiff must demonstrate by clear and convincing e vidence that defendant i s guilt y of something more tha n negligence; he or she must show reckles s, oppressive, f raudulent, or malicious conduct. The latter three catego ries involve “intentional,” “ willful, ” or “ conscious ” wrongdoin g of a “despicable” or “ injurious ” nature. [Cit ations.] [¶] “Recklessness ” refer s to a subjective state of culpability greater tha n simple neg ligence, which has been describ ed as a “deliberate di sregard” of the “high deg ree of probability” that an injury will occur [c itations]. Recklessn ess, unlike negligence, involves more than “ inadvertence, incom petence, unskillfulne ss, or a failure t o take prec autions ” but rather rises to the level of a “c onscious choice of a co urse of action . . . w ith knowledge of the

19 serious danger to ot hers involved in it.” ’ ” (Doe v. Kachru (20 25) 1 15 Cal.App.5th 175, 214-215.) Even a ssuming the fift h amended complai nt adequately alleges Al ghannam committed an act likely to result in an offensive touching of Sandra (i. e., assault), nothing suggests he acted w ith the culpability requ ired by the Elde r Abuse Act, and plain tiffs do not suggest they can cu re the defect. The trial court proper ly sustained the demur rer to the fifth amended co mplaint. (See Doe v. Kachru, supra, 115 Cal.App.5th at p. 214 [doctor ’ s de murrer to e lder abuse cause of acti on based on theory of medical battery properly sustained whe re the plaintiffs’ complaint merely parroted th e language of the statute, alleging doctor ’ s “ ‘behavior was i ntentional, malicious, wanton, oppres sive[], fraudulent, and/or reckless,’ ” but did not a llege “any facts in supp ort of these gen eric assertions”].) D. Leave to Amend W e next consider whet her the trial court ab used its discretion in denying leave to amend. As noted, the burden of pr oving a reasonable possibility that a complaint can be amended to state a viable cause of ac tion falls “squarely on the pla intiff.” (Blank v. Kirwan, supra, 3 9 Cal.3d at p. 318.) “ T o satisfy that burd en on appeal, a plaintiff ‘ must show in what manner h e can amend his co mplaint and ho w that amendment will change the legal effect of his pleading.’ [Citation.] The assertion of an ab stract r ight to amend does not satisfy this bu rden.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) “ Where the appellant offers no allegations to support the possibility of amendment and no l egal authority sho wing the viability of new causes of action, there is no basis for find ing the trial court abused its discretion whe n it sustained the de murrer without leave to amend.” (Id. at p. 44.) Plaintiffs do not discuss leave to amend at a ll in their opening brie f. Although they repeatedly attrib ute allegations to the f ifth amended c omplaint t hat cannot b e found there, they do not p ropose to amend the co mplaint to pro perly plead t h em, and d o not

20 argue the trial court abused its discretion in sustaining th e demurrer without further leave to amend. Plaintiffs’ reply brief as serts the tria l court erred in denying leave to amend, but offers no reason for their failure to raise the point earli er, and again fail to explain how they would amend to overcome the sta tute of limitations defe nse or assert a c ause of action for elder abuse. (Shimmon v. Franc hise T ax Bd. (2010) 189 Ca l.App.4th 688, 694, fn. 3 [appellants’ assert ion that they should ha ve been granted leave to amend, rai sed for the first time in repl y and without good c ause shown for f ailing to rai se the point earlier, rejected].) Under the c ircumstances, we conclude plaintiffs have failed to carry t heir burden of showing the trial court abused it s discretion in sustaini ng the demurrer with ou t further leave to amend. (Blank v. Kirwin, supra, 39 Cal.3 d at p. 318.) III. DISPOSITION The judgment is affirmed. Respondent sh all recover his costs on appeal. (Cal. Rules of Court, rule 8.2 78(a)(1) & (2).) /S/ RENNER, Acting P. J. W e concur: /S/ MESIW ALA, J. /S/ FEINBERG, J.