Gurovich v. West Hills Surgical Center CA2/7

Opinion

Filed 9/15/26 Gurovich v. West Hills Surgical Center CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

DMITRY GUROVICH, B342789

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 20STCV39823) v. WEST HILLS SURGICAL CENTER, LTD., Defendant and Respondent.

APPEAL from a judgment and orders of the Superior Court of Los Angeles County, Valerie Salkin, Judge. Affirmed in part and reversed in part. Kowal Law Group, Timothy M. Kowal, Teddy T. Davis, Ryan Merker; Law Office of Joseph M. Kar and Joseph M. Kar for Plaintiff and Appellant. Theodora Oringher, Todd C. Theodora, Adam G. Wentland, Deanna Rafla-Yuan and Anthony F. Witteman for Defendant and Respondent.

__________________________ Dmitry Gurovich appeals from a judgment entered after the court granted West Hills Surgical Center, Ltd.’s (West Hills) motion for summary judgment. Gurovich underwent a colonoscopy at West Hills. He claims that during the procedure, his doctor performed a “hemorrhoidal banding” procedure despite Gurovich’s previous oral refusal to consent to it. Gurovich contends he suffered serious physical and emotional harm as a result. Gurovich sued the doctor for negligence and battery. More than two years later, at the doctor’s deposition, Gurovich learned that the doctor was not a board-certified gastroenterologist as he had believed. Gurovich sought leave to add several “hospital- defendants,” including West Hills, alleging they had misrepresented the doctor was board-certified or specialized in gastroenterology. Based on these alleged misrepresentations he sought to amend his complaint to add causes of action against West Hills (and the other defendants) for negligence/negligent infliction of emotional distress, battery, fraud, and a violation of the Consumer Legal Remedies Act (CLRA). He also sought to plead punitive damages claims against all the defendants, but because they were health care providers, he had to satisfy Code of Civil Procedure section 425.131 by demonstrating a substantial probability of success on the punitive damages claims in order to obtain leave to add them. The trial court concluded Gurovich did not satisfy section 425.13 and thus could not plead a claim for punitive damages or fraud allegations against the hospital-defendants. Yet despite the court’s ruling, Gurovich filed a second amended complaint 1 Undesignated statutory references are to the Code of Civil Procedure.

2 that included a fraud cause of action against West Hills. West Hills demurred to the fraud cause of action (and all other causes of action, arguing they were all based on the fraud allegations) on the ground they were not pleaded with the requisite specificity. The trial court sua sponte struck the fraud claim as “improperly pleaded,” without addressing the demurrer to that claim. The court granted the demurrer to the CLRA cause of action because it depended on the stricken fraud cause of action. The court denied leave to amend the fraud and CLRA causes of action. The court overruled the demurrer to the negligence and battery claims but subsequently granted summary judgment on those two remaining claims, concluding they were barred by the relevant statutes of limitation. We conclude the trial court properly granted West Hills’s motion for summary judgment on the negligence and battery causes of action. With respect to the court’s denial of leave to add a fraud cause of action against West Hills, we conclude it applied the wrong legal standard, and therefore erred in denying Gurovich’s motion for leave to amend to add a fraud claim. While Gurovich’s subsequently-pleaded fraud claim and CLRA claim were properly dismissed because they were inadequately pleaded and subject to West Hills’s demurrer, leave to amend must be granted because there is a reasonable possibility that Gurovich can plead viable fraud and CLRA claims.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Surgery In August 2019, Gurovich underwent a colonoscopy performed by Dr. Calin Arimie at West Hills. Arimie had also performed a colonoscopy on Gurovich in 2009. West Hills is an ambulatory surgery center in West Hills, California, with more 3 than 90 participating physicians and partners who provide treatment in various specialties, including gastroenterology. On the morning of his scheduled colonoscopy, Gurovich signed a West Hills form titled “Informed Consent to Treat and Disclose Information.” The form stated Gurovich consented to “the performance of operations and procedures in addition to or different from those now planned whether or not arising from presently foreseen conditions, which the doctor named below or his associates or assistants may consider necessary or advisable during the operation or procedures. I voluntarily request Dr. CALIN ARIMIE as my physician, and such associates, technical assistance and other health care providers as they may deem necessary, to treat my condition. I understand that the following surgical, medical, and/or diagnostic procedures are planned for me and I voluntarily consent and authorize those procedures: COLONOSCOPY AND ESOPHAGOGASTRODUODENOSCOPY WITH POSSIBLE BIOPSY, POSSIBLE POLYPECTOMY, POSSIBLE ELECTROCAUTERY, POSSIBLE INJECTION, POSSIBLE DILATION, POSSIBLE BANDING AND POSSIBLE FOREIGN BODY REMOVAL.” Gurovich contends that at his initial appointment with Arimie in June 2019, he had expressly refused to consent to a specific procedure known as hemorrhoidal banding. Despite that refusal, Arimie performed hemorrhoidal banding during the colonoscopy. Gurovich asserts that when he awoke after the procedure, he “immediately noticed severe and massive pain in and around anus [sic] and rectum.” He asked a nurse why he was experiencing so much pain, and she told him that Arimie had banded seven hemorrhoids. Gurovich contends the procedure 4 exceeded the scope of his consent. He asserts the procedure left him with permanent injuries and disfigurement as well as severe emotional distress.

B. Gurovich’s Initial Complaints and Motion for Leave To File a Second Amended Complaint In October 2020, Gurovich sued Arimie and inSite Digestive Health Care2 (formerly known as Southern California Gastroenterology Associates) for negligence and battery based on Arimie’s performance of the hemorrhoidal banding procedure without Gurovich’s consent. In March 2023, Gurovich moved for leave to file an amended complaint, seeking for the first time to add West Hills and Doctor A Plus Inc. as defendants and to add causes of action against all the defendants for “negligence/NIED” (i.e., negligent infliction of emotional distress), battery, fraudulent misrepresentation, and a CLRA violation. Gurovich asserted that, during Arimie’s deposition in January 2023, he learned for the first time that Arimie had never been a board-certified gastroenterologist. Gurovich’s motion stated, “Had the Defendants [including West Hills] not lied about the doctor’s true qualifications and told Plaintiff the truth, Mr. Gurovich would never have consented and would have gone elsewhere. [Citation.] Defendants knew that and had an obligation [to] validate the credentials but perpetuated the lie instead. Learning of Defendant Arimie’s false qualification and being duped into believing he was being seen by a double board certified specialist caused extreme emotional 2 InSite is a general partnership of physicians, including Arimie and his alleged alter ego corporation, Doctor A Plus Inc.

5 distress to Plaintiff as alleged and delayed discovery of the new causes of action/counts and the additional parties.” Gurovich’s attorney submitted a declaration attaching “true and correct copies” of several websites, including “West Hills Surgical Center’s webpage for Calin Arimie, MD.”3 The website PDF did not include a URL, but displayed the West Hills Surgical Center logo, Arimie’s name, and the word “Gastroenterology” beneath his name. The website also listed “Gastroenterology” as a “Specialty.” The motion also sought to add a claim for punitive damages against all the defendants. It asserted Gurovich met his burden under section 425.13 to show a substantial probability of prevailing on his punitive damages claim “given the outright public fraud employed to drive unsuspecting patients and the public to believe Defendant Arimie was a specialist dual board certified when he never ever was.” The proposed amended complaint alleged that, from 2012 onward, Arimie, Doctor A Plus Inc., inSite, and West Hills “hired, retained, instructed, and/or otherwise allowed or ratified” public statements falsely holding out Arimie as a gastroenterology specialist and dual-board-certified physician in internal medicine and gastroenterology, as well as a member of the American Gastroenterological Association (AGA) and American College of Gastroenterology (ACG). The fraud cause of action alleged that, 3 The declaration supporting Gurovich’s motion also attached a copy of “West Hills Hospital and Medical Center webpage for Calin Arimie MD,” which stated Arimie had a “Specialty” in “Gastroenterology.” However, Gurovich presented no evidence that this was the same entity as defendant West Hills Surgical Center.

6 from 2012 onward, the “defendants” made these misrepresentations to the public and prospective patients through websites, press releases, social media, advertising, marketing, promotions, and word of mouth. Gurovich claimed he “heard and/or read these representations on the websites https://www.findatopdoc.com/doctor/8136624-Calin-Arimie- gastroenterologist-Los-Angeles-California-91307, www.insitedigestive.com, https://westhillssurgicalcenter.com/, as well as heard them from his father prior to him passing away.” Gurovich alleged the representations were false because Arimie was not double-board-certified, was not board-certified in gastroenterology, had allowed his internal-medicine certification to lapse, was not a gastroenterology specialist or gastroenterologist, and was not a member of the AGA or ACG, but was instead “a medical doctor [who] merely limits his practice area to gastroenterology.” He further claimed that the defendants knew the representations were false and intended to induce patients to rely on them. “Plaintiff was fraudulently induced to undergo unwanted and unauthorized medical procedures and screening, to give consent thereto based on fraud and the deception hereinabove alleged that he would not have otherwise agreed to or permitted.” If he “had known the actual facts, he would not have taken such action, would not have even been a patient of any of the Defendants and would have gone elsewhere.” In a declaration, Gurovich described reading that Arimie was double-board-certified on the inSite website but did not mention West Hills’s website. Gurovich’s CLRA claim was based on the same alleged misrepresentations as his fraud claim.

7 In May 2023, the trial court granted Gurovich’s motion for leave to amend except ordered him to omit the allegations of fraud and the claims for punitive damages against the hospital- defendants. (The fraud allegations and punitive damages claims against Arimie were permitted.) The court found “Gurovich fails to meet the requirements under … section 425.13 because he has not shown a substantial probability of success on the merits of his punitive damages claims against the hospital-defendants.” The court reasoned Gurovich did not show he had a substantial probability of succeeding on the merits of his fraud claim against the defendants other than Arimie because he had not shown that any of the hospital-defendants “affirmatively misrepresented or concealed any fact regarding Arimie’s certification status.” The court concluded Gurovich had not shown that these defendants intended to induce his reliance on the alleged misrepresentations or that he relied on those websites in selecting Arimie as his physician. The court further concluded Gurovich failed to show a substantial probability that he could prove the hospital- defendants acted maliciously or oppressively. The court ordered Gurovich to file his “Second Amended Complaint without allegations of fraud and punitive damages” against any of the hospital-defendants, including West Hills. Gurovich filed the second amended complaint that same day but did not remove the fraud allegations as the court had ordered.

C. West Hills’s Demurrer In July 2023, West Hills demurred to the second amended complaint, arguing that although each cause of action sounded in fraud, none was pleaded with the specificity required for a fraud claim.

8 In December 2023, the trial court overruled the demurrer as to the first and second causes of action for negligence and battery. But on its own motion and without leave to amend, the court struck Gurovich’s third cause of action for fraud. While noting the complaint failed to identify “any single statement by [West Hills] or its representatives which was false,” the court indicated it did not need to address “the insufficiency of Plaintiff’s fraud allegations” because it had “already considered the issue of whether Plaintiff shall be allowed to plead a fraud cause of action against [the hospital-defendants].” Because the court “already specifically declined to extend to Plaintiff leave to amend his pleadings to state a fraud cause of action” based on Gurovich’s failure to show a substantial probability of success on the merits, the fraud cause of action “constitute[d] an improperly pleaded matter.” The court therefore struck Gurovich’s cause of action for fraud against the hospital-defendants “pursuant to its authority to strike out an improperly asserted matter in any pleading.” The court also sustained, without leave to amend, the demurrer to Gurovich’s cause of action for violation of the CLRA. The court reasoned, “Because Plaintiff’s CLRA cause of action sounds in fraud and is reliant on Plaintiff’s [fraud] cause of action, the CLRA claim is without factual support and cannot proceed.”

D. West Hills’s Summary Judgment Motion In July 2024, West Hills filed a motion for summary judgment on the two remaining causes of action, negligence/negligent infliction of emotional distress and battery, in part arguing both claims were barred by the applicable statutes of limitations.

9 West Hills proffered evidence Gurovich did not add it as a defendant until May 2023, more than three years after his colonoscopy in August 2019. Because the statute of limitations for a negligence claim against a healthcare provider is three years (§ 340.5) and for battery is two years (§ 335.1), West Hills asserted both claims were time-barred. In opposition, Gurovich submitted a declaration in which he stated that when he awoke from the colonoscopy procedure on August 2, 2019, he “immediately noticed severe and massive pain in and around anus [sic] and rectum.” He asked a nurse why he was in so much pain, and the nurse explained that Arimie banded seven hemorrhoids, which Gurovich contends was beyond the scope of his consent. However, Gurovich argued the statute of limitations did not begin to run until January 2023, when he first learned at Arimie’s deposition that Arimie “was a fake certified doctor, and that [West Hills] engaged in conduct to promote that doctor’s fake credentials and encourage that misconduct.” Gurovich contended that under the delayed discovery rule, the claims did not accrue until West Hills’s wrongdoing was uncovered in 2023. The trial court granted West Hills’s motion. The court rejected the application of the delayed discovery rule to the negligence cause of action that was governed by the statute of limitations in section 340.5. The court concluded the statute of limitations was three years from the date of injury or one year after the date of discovery, “ ‘whichever occurs first.’ ” The court concluded three years “had already elapsed from the date of Plaintiff’s injury before Plaintiff filed his claim against West Hills. Plaintiff cannot rely on the delayed discovery rule to save his cause of action because the 3-year date had already ‘occurred 10 first.’ ” The court noted Gurovich had made no argument and presented no evidence to show one of the limited tolling exceptions under section 340.5 applied. The court concluded the battery cause of action was also barred by the two-year statute of limitations under section 335.1, and Gurovich had not shown “any grounds for claiming delayed discovery” of this claim. The court reasoned Gurovich’s battery claim against West Hills stemmed from the offensive touching Gurovich alleged Arimie committed against him. The court relied on Gurovich’s declaration, which confirmed that in August 2019 he “immediately knew and understood that the banding procedure had been performed when he woke up from surgery, thus commencing his limitations period.” Thus, the statute of limitations was not extended by the discovery rule, and his claim accrued in August 2019. Gurovich timely appealed from the judgment entered in favor of West Hills.

DISCUSSION

A. The Court Did Not Err in Granting West Hills’s Motion for Summary Judgment on the Negligence and Battery Claims Based on Statute of Limitations Grounds 1. Summary judgment standards and standard of review We review summary judgment rulings de novo. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.) In so doing, we “ ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’ ” (Ibid.) “Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving 11 party is entitled to judgment as a matter of law.’ ” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618; see § 437c, subds. (c) & (f).) “ ‘The plaintiff ... shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.’ ” (Casarez v. Irigoyen Farms, Inc. (2025) 114 Cal.App.5th 873, 881; see § 437c, subd. (p)(2).) “The statute of limitations operates in an action as an affirmative defense.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396; see Gutierrez v. Tostado (2025) 18 Cal.5th 222, 231.) “The defendant bears the initial burden of proving the plaintiff’s claims are barred by the applicable statute of limitations. [Citations.] Thereafter, the burden shifts to the plaintiff to demonstrate the plaintiff’s claims survive based on one or more nonstatutory exceptions to the basic limitations period, if applicable.” (Garst v. Tehama County Flood Control & Water Conservation Dist. (2026) 121 Cal.App.5th 507, 523; accord, Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197 (Aryeh); Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1030; see § 437c, subd. (p)(2)).) “ ‘The application of the statute of limitations on undisputed facts is a purely legal question [citation]; accordingly, we review the [trial court’s] rulings de novo.’ ” (Garst, at p. 523; accord, Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 778 (Filosa) [“Although application of the statute of limitations is normally a question of fact, the question becomes one of law when the evidence is susceptible of only one reasonable conclusion.”].)

12 2. The negligence cause of action is untimely under section 340.5 Section 340.5, part of the Medical Injury Compensation Reform Act (MICRA, Stats. 1975, 2d. Ex. Sess. 1975-1976, § 1), provides the statute of limitations applicable to Gurovich’s negligence claim: “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.”4 “[T]o avoid the bar of the statute of limitation, his action must have been brought on the earlier date of three years after his injury or one year after he discovered the injury.” (Filosa, supra, 59 Cal.App.5th at p. 778.) Thus, “[i]rrespective of the one-year provision of section 340.5, its three-year provision ‘provides an outer limit which terminates all malpractice liability and it commences to run when the patient is aware of the physical manifestations of her injury without regard to awareness of the negligent cause.’ ” (Artal v. Allen (2003) 111 Cal.App.4th 273, 282, italics omitted; accord, Nichols v. Alghannam (2026) 118 Cal.App.5th 726, 734 (Nichols).)

4 Section 340.5 further provides: “In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” In opposing summary judgment, Gurovich did not assert that any of these tolling provisions applied to extend the statute of limitations. Accordingly, he has forfeited the argument.

13 Gurovich contends the trial court erred in granting summary judgment on his negligence claim against West Hills on the ground that it was time-barred under section 340.5. The court determined there was no factual dispute that the date of Gurovich’s injury was more than three years before he added West Hills as a defendant. The trial court was correct. Gurovich’s “negligence/NIED” claim against West Hills (and all the other defendants) alleges their conduct “fell below the common and professional standards of care … in the manner of advertising, marketing, and/or promotion of Defendant Arimie, which lured Plaintiff by misleading him and deprived Plaintiff of the right to accurate advance knowledge” to allow him to give proper informed consent to the surgical procedure that occurred on August 2, 2019. As a result, Gurovich was permanently injured and disfigured and suffered damages and severe emotional distress.5 West Hills met its initial burden to demonstrate the claim was time-barred under section 340.5. West Hills pointed to the allegations in the second amended complaint that Gurovich suffered injuries on August 2, 2019, when Arimie performed the procedure to which Gurovich had not consented. (See Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 456 [“A defendant may rely on judicial admissions in moving for summary judgment.”]; Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324 [“ ‘A defendant moving for summary judgment may 5 The complaint also alleges that the other defendants (but not West Hills) were liable for negligence because their conduct fell below the ordinary standard of care by allowing, performing, assisting or otherwise providing services or facilities for the medical procedure that exceeded the scope of Gurovich’s consent.

14 rely on the allegations contained in the plaintiff’s complaint, which constitute judicial admissions. As such they are conclusive concessions of the truth of a matter and have the effect of removing it from the issues.’ ”].) Gurovich did not file his complaint against West Hills until May 8, 2023, more than “three years after the date of injury.” (§ 340.5.) The burden therefore shifted to Gurovich to identify a triable issue of material fact on whether Gurovich sued West Hills within three years of the “date of injury.” (See § 437c, subd. (p)(2).) Gurovich did not satisfy that burden. In his declaration submitted in opposition to the summary judgment motion, Gurovich stated that when he awoke from the colonoscopy, he “immediately noticed severe and massive pain in and around anus [sic] and rectum.” He asked a nurse why he was in so much pain, and the nurse told him that Arimie had banded seven hemorrhoids. As the trial court found, Gurovich’s proffered evidence only supported the determination his injury occurred on the date of the 2019 procedure. Gurovich asserts West Hills’s false advertisements were a negligent cause of his disfigurement, pain, and emotional distress resulting from the surgical procedure. He contends West Hills deceptively induced his consent by falsely promoting Arimie as a double-board-certified physician specializing in gastroenterology. He asserts he did not discover those misrepresentations until January 2023; thus, he contends, his negligence claim did not accrue until then. “ ‘The term “injury” for purposes of section 340.5 “ ‘refer[s] to the damaging effect of the alleged wrongful act and not to the act itself.’ [Citation.] The injury is not necessarily the ultimate harm suffered, but instead occurs at ‘the point at which 15 “appreciable harm” [is] first manifested.’ ” [Citation.] An injury manifests when damage is “evidenced in some significant fashion; when the damage has clearly surfaced and is noticeable.” ’ ” (Nichols, supra, 118 Cal.App.5th at p. 734.) “Because the three- year limitations period accrues at the time of injury, it is the surfacing of appreciable harm that marks the beginning of the three-year period.” (Filosa, supra, 59 Cal.App.5th at p. 779; see Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762 [“the event which activates the three-year limitations period is the moment the plaintiff discovers the harm caused by the alleged negligence”].) The three-year limitations period was triggered when Gurovich first felt the effects of the surgery to which he did not consent. According to his declaration, and as Gurovich concedes on appeal, that happened when he woke up from the procedure in August 2019. Under section 340.5, the accrual date was not the date he discovered that West Hills’s alleged deception was one of the negligent causes. (Nichols, supra, 118 Cal.App.5th at p. 734; Hills v. Aronsohn, supra, 152 Cal.App.3d at p. 761 [unless one of the tolling exceptions to § 340.5 applies, “the three-year outside limitations period is commenced regardless of a patient’s belated discovery of her injury”].) “The inescapable conclusion is that [Gurovich] suffered the damaging effects of the malpractice more than three years before filing suit. Accordingly, the motion for summary judgment was properly granted.” (Hills, at p. 763.) 3. The battery cause of action is time-barred under section 335.1 The statute of limitations for battery is two years. (§ 335.1; see Daley v. Regents of University of California (2019) 39 Cal.App.5th 595, 602.) The trial court concluded there was no 16 triable issue that the claims against West Hills were filed more than two years after the cause of action accrued, rejecting Gurovich’s argument there was a triable issue that the delayed discovery rule applied to delay accrual of the claim. The battery cause of action in the second amended complaint alleges West Hills and the other defendants “battered” Gurovich by “baiting” him with the false promotions of Arimie “to fraudulently obtain [Gurovich’s] oral consent … and then switching the scope of consent” to include unauthorized procedures.6 The complaint alleges that, due to this battery, Gurovich “suffered … general and special damages, and severe emotional distress, and is believed to be permanently injured to his health and wellbeing.” “A medical battery occurs where ‘a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained.’ ” (So v. Shin (2013) 212 Cal.App.4th 652, 669; accord, Doe v. Kachru (2025) 115 Cal.App.5th 175, 18.)7 “The 6 Gurovich also alleged the other defendants (not West Hills) committed battery by “allowing, performing, assisting in or otherwise providing services or facilities for the colonoscopy procedure to Plaintiff, which exceeded the scope of consent … such that instead seven internal hemorrhoids were banded during the procedure without consent.” 7 Intentional conduct such as that alleged by Gurovich likely falls outside MICRA’s definition of “professional negligence” and thus is not subject to the limitations period under section 340.5. (See Doe v. Kachru, supra, 115 Cal.App.5th at pp. 187-190; Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347-352; see also Cobbs v. Grant (1972) 8 Cal.3d 229, 239- 241; Perry v. Shaw (2001) 88 Cal.App.4th 658, 663-664.) But 17 essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So, at p. 669.) Gurovich’s battery claim against West Hills thus necessarily alleges that West Hills’s conduct caused Gurovich to be touched by Arimie, and that Gurovich was harmed by the touching. It appears Gurovich asserts that West Hills’s alleged deceptive representations about Arimie’s qualifications are the conduct that caused Gurovich to be touched. As the trial court concluded, logically the claimed injury must be from the touching in August 2019. The limitations period for battery begins to run when the cause of action accrues. (Daley, supra, 39 Cal.App.5th at p. 603.) “Generally, a cause of action accrues ‘ “when, under the substantive law, the wrongful act is done,” or the wrongful result occurs, and the consequent “liability arises.” ’ ” (Ibid.) Gurovich asserts that the battery cause of action accrued not at the time of the injury, but rather when he learned in January 2023 that Arimie was not a board-certified specialist in gastroenterology and that West Hills had deceived him on this point. “As an exception to the general rule of accrual … the discovery rule ‘postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.’

assuming arguendo that section 340.5 applies, Gurovich’s battery claim would be time-barred under section 340.5 for the same reason as his negligence claim.

18 [Citation.] A plaintiff has reason to discover a cause of action when he or she ‘ “has reason at least to suspect a factual basis for its elements.” ’ [Citation.] Under this standard, accrual does not wait until the plaintiff knows facts supporting each specific legal element of the cause of action; it occurs when the plaintiff has ‘reason to at least suspect that a type of wrongdoing has injured them.’ [Citation.] ‘In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.’ ” (Daley, supra, 39 Cal.App.5th at p. 603; see Aryeh, supra, 55 Cal.4th at p. 1192 [the discovery rule, where applicable, “ ‘postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action’ ”].) However, Gurovich did not proffer facts to raise a triable issue that the discovery rule applied to extend the statute of limitations for his battery claim. In his opposition brief and separate statement, Gurovich did not point to evidence of any representation made by West Hills regarding Arimie’s credentials or evidence that he relied on such a representation. (If Gurovich did not rely on a representation by West Hills about Arimie’s credentials, such a representation could not have “caused [him] to be touched” (So v. Shin, supra, 212 Cal.App.4th at p. 669), i.e., caused him to consent to undergo a surgical procedure performed by Arimie.) He relies solely on his declaration stating that prior to Arimie’s deposition in January 2023 he had no reason to doubt that Arimie was board-certified, and he had relied on what he read about Arimie’s credentials on the website of another defendant, inSite. Without baseline facts about when he discovered a misrepresentation by West Hills, there is no 19 evidence from which a factfinder could conclude that Gurovich could not have discovered any sooner that West Hills had committed wrongdoing that led to his injury. In the absence of such evidence, the “delayed discovery rule” does not come into play. (See Glue-Fold, Inc. v. Slautterback Corp., supra, 82 Cal.App.4th at pp. 1030-1031 [summary judgment properly granted in favor of defendant where plaintiff failed to proffer evidence that could trigger delayed discovery rule; evidence failed to show “precisely how or when” defendant learned of wrongdoing, and plaintiff provided no evidence from which to conclude plaintiff “exercised reasonable diligence in investigating, or that earlier efforts would have been fruitless”].)8 Gurovich failed to raise a triable issue that the discovery rule applied. Accordingly, summary judgment was appropriately granted because Gurovich’s battery claim is time-barred under section 335.1’s two-year deadline.

8 Not only did Gurovich fail to proffer facts to raise a triable issue, but the second amended complaint is insufficiently pleaded to permit Gurovich to rely on the delayed discovery rule. “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ ” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

20 B. The Court Erred in Concluding Section 425.13 Barred Gurovich from Pleading a Fraud Cause of Action Against West Hills 1. Applicable law and standard of review The court may “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading.” (§ 473, subd. (a)(1).) We review a ruling on a request to amend a pleading for abuse of discretion. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 161-162.) “It is well established that ‘California courts “have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” [Citation.] Indeed, “it is a rare case in which ‘a court will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case.’ ” [Citation.]’ [Citation.] Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail.” (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.) “The trial court abuses its discretion if it denies leave to amend when there is a reasonable possibility the defect in the pleading could be cured by amendment.” (Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1111.) Gurovich’s challenge also raises purely legal questions, which we review de novo. (Aryeh, supra, 55 Cal.4th at [p. 1191; Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 832.)

21 2. The trial court applied the wrong legal standard in evaluating Gurovich’s request to amend to add a fraud cause of action against West Hills Gurovich contends the court applied the wrong legal standard in determining whether to permit him to add a fraud claim against West Hills by amended complaint. He asserts the court improperly ruled he could not add a fraud claim because he did not demonstrate a “substantial probability” of prevailing on the claim, when the “substantial probability” test in section 425.13 applies only to the question of whether a plaintiff will be permitted to plead a claim for punitive damages against a health care provider. We agree. Section 425.13, subdivision (a)9, “requires plaintiffs in an action arising from the professional negligence of a licensed health care provider to obtain a court order before including a 9 Section 425.13, subdivision (a), provides, “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”

22 claim for punitive damages in the complaint. Section 425.13[, subdivision] (a) applies to intentional torts as well as negligence causes of action.” (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 431-432; accord, Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 (Central Pathology).) “For the punitive damages claim to be included in the complaint, there must be a finding of substantial evidence that the defendant is liable under Civil Code section 3294,” the provision that governs when punitive damages are allowable. (Country Villa, at p. 432.) The trial court denied Gurovich’s request to add a fraud claim against West Hills because he “fail[ed] to meet the requirements under … section 425.13 because he has not shown a substantial probability of success on the merits of his punitive damages claims against the hospital-defendants.” However, section 425.13 does not require a plaintiff to show a substantial probability of success on the merits to add a substantive claim. The statute provides that “no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” (§ 425.13, subd. (a), italics added.) It requires that showing only to add a claim for punitive damages, not to assert a cause of action that supports a claim for punitive damages. West Hills responds by relying on cases establishing that, for example, a fraud cause of action “arises out of professional negligence” within the meaning of section 425.13. (See Central Pathology, supra, 3 Cal.4th at pp. 192-193; Divino Plastic Surgery, Inc. v. Superior Court (2022) 78 Cal.App.5th 972, 985.) But those cases do not establish that section 425.13 governs 23 whether a plaintiff may plead the substantive claim itself. They establish only that, when a fraud claim arises out of professional negligence, section 425.13 applies to a request for punitive damages based on that claim. In other words, the statute regulates the remedy, not the cause of action. Thus, section 425.13 may require a plaintiff to obtain leave before adding a punitive damages claim, but it does not require the plaintiff to satisfy the statute’s “substantial probability” standard before asserting the underlying fraud claim.10 C. Gurovich’s Fraud and CLRA Claims Were Properly Dismissed, but Gurovich Must Be Granted Leave To Amend His Claims As discussed, after the trial court ruled that Gurovich had to omit fraud allegations from his second amended complaint, Gurovich included a fraud cause of action in that complaint anyway. West Hills demurred to the cause of action (as well as the other causes of action), but the court struck the fraud claim sua sponte because the court had already ordered it could not proceed. The court therefore did not rule on West Hills’s demurrer to the fraud claim.

10 We reject West Hills’s contention Gurovich forfeited the argument that section 425.13 applies only to punitive damages and not to the fraud or CLRA causes of action by failing to object to the superior court’s tentative ruling and by failing to include a transcript of proceedings despite a court reporter transcribing the argument. Gurovich preserved the issue by requesting leave to amend to include a fraud claim. Further, the court’s written order denying leave to amend provides a sufficient record for us to evaluate the bases for the court’s ruling.

24 As we have concluded, the court erred in striking the fraud claim. And because the court used its striking of the fraud claim as the basis for sustaining the demurrer to the CLRA claim, the court dismissed the CLRA claim for an unsound reason. However, we now consider whether West Hills’s demurrer to the fraud and CLRA claims nevertheless should have been granted. (See Committee to Relocate Marilyn v. City of Palm Springs (2023) 88 Cal.App.5th 607, 622 [“ ‘ “In considering a trial court’s order sustaining a demurrer without leave to amend, ‘ “we review the trial court’s result for error, and not its legal reasoning.” ’ ” [Citation.] We “ ‘affirm the judgment if it is correct on any theory.” ’ ”]; Iloh v. Regents of University of California (2023) 87 Cal.App.5th 513, 529 [“we consider only the trial court’s ruling, not its reasoning; we affirm a challenged order if it is correct on any theory”].) “A demurrer tests the legal sufficiency of the factual allegations in a complaint. We … determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. [Citations.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725; see Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.) We do not assume to be true “ ‘mere contentions, deductions, or conclusions of law.’ ” (New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714.)

25 1. The fraud cause of action against West Hills was not pleaded with sufficient particularity West Hills demurred to the second amended complaint on the basis that Gurovich’s claims were not pleaded with the required particularity. To state a cause of action for fraud, a plaintiff must allege “ ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; see Amiodarone Cases (2022) 84 Cal.App.5th 1091, 1109.) Each element “must be pled specifically; general and conclusory allegations do not suffice.” (Lazar, at p. 645; see Amiodarone Cases, at p. 1109.) “ ‘ “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” ’ ” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993 (Robinson Helicopter); see Amiodarone Cases, at p. 1109; see also Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331 [“the allegations in a fraud action need not be liberally construed”].) Gurovich’s second amended complaint generally grouped the defendants together, alleging “Defendants” made representations on websites, social media, press releases, and through other advertising and marketing portraying Arimie as a “double or dual board certified medical doctor” and a “specialist.” It alleged Gurovich heard or read these representations on various websites, including “https://westhillssurgicalcenter.com/,” “[o]n or before June 26, 2019.”

26 These allegations are insufficiently specific. The complaint does not identify any particular representation made by West Hills, when West Hills made it, where it appeared (beyond citing West Hills’s general URL), or how and when Gurovich encountered it. The allegations thus lack the requisite specificity. (See Amiodarone Cases, supra, 84 Cal.App.5th at p. 1111 [fraud claim could not survive demurrer because it lacked specifics about when or how physicians were influenced by allegedly false statements by FDA].) As the trial court noted, the second amended complaint failed to identify “any single statement by [West Hills] or its representatives which was false.” In other words, Gurovich did not plead the “ ‘ “facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” ’ ” (Robinson Helicopter, supra, 34 Cal.4th at p. 993.) Thus, Gurovich’s fraud cause of action against West Hills was not pleaded with the required specificity and was properly dismissed. 2. The CLRA cause of action was not pleaded with reasonable particularity The analysis is similar for Gurovich’s CLRA cause of action. “The CLRA defines as unlawful certain ‘unfair methods of competition and unfair or deceptive acts ... undertaken by any person in a transaction intended to result or that results in the sale ... of goods or services to any consumer.’ (Civ. Code, § 1770, subd. (a).)” (Amiodarone Cases, supra, 84 Cal.App.5th at p. 1116.) “An individual seeking to recover damages under the CLRA based on a misrepresentation must prove, among other things, actual injury. ‘Relief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof.’ [Citation.] ‘Accordingly, “plaintiffs 27 in a CLRA action [must] show not only that a defendant’s conduct was deceptive but that the deception caused them harm.” ’ ” (Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1556.) Although a CLRA claim is “subject to a more lenient standard for pleading than a fraud claim” (Amiodarone Cases, at p. 1115), it “must be stated with reasonable particularity,” a pleading standard that is more demanding than the “general rule” requiring that the complaint merely “ ‘set forth the ultimate facts constituting the cause of action’ ” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261). Gurovich’s CLRA claim was based on the same alleged misrepresentations as his fraud claim. He did not plead the claim with “reasonable particularity.” As discussed, he grouped the defendants together despite their different roles and different advertisements, and he failed to identify any alleged misrepresentation made specifically by West Hills. Further, he failed to allege that he relied on any West Hills misrepresentation, when a required element of the claim is that West Hills’s deception have caused him harm. (See Bower v. AT&T Mobility, LLC, supra, 196 Cal.App.4th at p. 1556.) Thus, Gurovich’s CLRA claim was properly dismissed because it was not pleaded with reasonable particularity. 3. Gurovich is entitled to leave to amend his fraud and CLRA causes of action As discussed, regardless of the trial court’s reasoning, we conclude the trial court properly dismissed Gurovich’s fraud and CLRA causes of action because they were inadequately pleaded. However, we conclude the court erred in denying Gurovich leave to amend. There is “a reasonable possibility the defect in the pleading could be cured by amendment” (Bettencourt v. Hennessy 28 Industries, Inc., supra, 205 Cal.App.4th at p. 1111) to allege “ ‘ “facts which ‘show how, when, where, to whom, and by what means the alleged representations were tendered’ ” ’ ” by West Hills (Robinson Helicopter, supra, 34 Cal.4th at p. 993). To state a fraud claim, Gurovich must also plead with specificity that West Hills had knowledge of the falsity of the misrepresentations and intended to defraud its patients, that Gurovich justifiably relied on those misrepresentations, and that such reliance caused Gurovich to suffer harm. (See Lazar v. Superior Court, supra, 12 Cal.4th at p. 638.)

DISPOSITION

The judgment is reversed. On remand, the court is directed to vacate its order denying Gurovich leave to amend his fraud and CLRA causes of action. The court’s rulings are otherwise affirmed. The parties shall bear their own costs on appeal.

STONE, J. We concur:

MARTINEZ, P. J.

SEGAL, J.