Marriage and Family Center v. Superior Court of San Diego County

[228 CalApp3d Page 1649] Charles E. Hansen (Dr. Hansen) and Susan Hansen, who are medical practitioners, and their medical business association, Marriage and Family Center (Center) (hereinafter collectively defendants), sought summary judgment based upon the contention that the complaint filed by Caroline De Pottel (hereinafter plaintiff)1 for medical malpractice was clearly barred by the special statute of limitations provisions of Code of Civil Procedure2 section 340.5. The trial court denied the motion, finding a triable issue of fact to be the time of occurrence of the effective damage such as to trigger commencement of the statute. Defendants' petition for review is authorized by section 437c, subdivision (l). (See also Leyva v. Superior Court (1985) 164 Cal. App. 3d 462, 468 [210 Cal. Rptr. 545].) The denial or granting of a motion for summary judgment does not involve exercise of discretion. If the pleadings and evidence before the court demonstrate that there is no triable issue of fact, the denial of the motion is an error in law. (Whitney's at the Beach v. Superior Court (1970) 3 Cal. App. 3d 258, 266 [83 Cal. Rptr. 237].) We therefore review the pleadings, moving and responding papers presented to the trial court in order to determine whether they establish the existence of the triable issue of fact found by the trial court.