Shade

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Shade alleges that he suffered several physical problems as a result of an artificial hip system implanted in his right hip by Freedhand in June 2009. Shade first sued Freedhand in April 2011 on a theory of professional negligence. After giving Shade two opportunities to amend his complaint, the trial court in that case sustained Freedhand’s demurrer on the basis that the action was barred by the one-year statute of limitations in Code of Civil Procedure section 340.5. This court affirmed in a nonpublished opinion. (Shade v. Freedhand (Jan. 10, 2013, A134754) (Shade I).)

1 While Shade’s appeal was pending in this court, he sued Freedhand a second time. Freedhand demurred to this complaint on the ground that it essentially duplicated the allegations in the first action. The day before a scheduled hearing on the demurrer, Shade filed a first amended complaint that purported to “replace in total” the first complaint to eliminate any claim for negligence. The amended complaint is based on “product warranty.” In it, Shade alleges that Freedhand used a hip-replacement product provided by “DePuy Orthopedics.” Although the bulk of the complaint…