Opinion
Rehearing Denied Feb. 5, 1976.
Opinions on pages 238-285 omitted. [*]
For Opinion on Hearing, see 132 Cal.Rptr. 657, 553 P.2d 1129.
[544 P.2d 618] [126 Cal.Rptr. 618] Manuel Lopez, Los Angeles, and Michael A. Petretta, Santa Monica, for plaintiff and appellant.
Kirtland & Packard, Harold J. Hunter, Jr., and Richard P. Booth, Jr., Los Angeles, for defendants and respondents.
THOMPSON, Associate Justice.
In this appeal from a summary judgment granted in a medical malpractice action on the ground that plaintiff's claim is barred by the statute of limitations, plaintiff contends that documentation in support of the motion does not negate the existence of a triable issue of fact. We conclude that while a deposition of plaintiff presented to the trial court on the motion for summary judgment establishes, without contradiction by plaintiff, that the injury to plaintiff occurred and was discovered more than one year prior to the date upon which the complaint in the case at bench was filed, the record is silent as to whether defendants failed to disclose any act, error, or omission known to them upon which the action is based. Accordingly, we reverse the judgment.
On April 16, 1973, plaintiff filed her complaint in the case at bench. The complaint alleges medical malpractice on the part of Dr. M. J. Pilson and South Hoover Hospital occurring during the delivery of plaintiff's stillborn child on April 23, 1972. It claims serious injury to plaintiff flowing from the negligence of the doctor and hospital, and claims damages in the amount of $1,000,000. Dr. Pilson and the hospital answered the complaint denying its charging allegations and asserting the statute of limitations of Code of Civil Procedure section 340.5 as an affirmative defense.
On September 13, 1974, Dr. Pilson and the hospital noticed their joint motion for summary judgment, asserting that the action is barred by section 340.5. The motion is supported by a declaration of Dr. Pilson stating that the child was delivered on March 22, 1972, and not April 23, as alleged in the complaint, and that plaintiff was discharged from the hospital and Pilson's care on March 30, 1972, the last time Pilson saw or treated plaintiff. A declaration by counsel for Dr. Pilson and the hospital states that the deposition of plaintiff was taken on July 25, 1974. Portions of the transcript of the deposition are appended to the declaration and incorporated in it by reference.
At her deposition, plaintiff testified to prolonged labor followed by a cesarean section. She complained of having been strapped down during the over two days of labor. While she was in her hospital room after delivery, she noticed that her scar was sore and draining pus. When Dr. Pilson released plaintiff from the hospital, she stood up and 'many things' fell from an open wound resulting from the operation. An orderly in the hospital had told plaintiff 'They have done a mess with you.' Plaintiff asked Dr. Pilson to send her to another hospital. When she left the hospital where she was treated by Dr. Pilson, plaintiff decided to sue the doctor and the hospital.
Plaintiff, when discharged from the hospital, was running a high fever. She remained home for a few hours and was then admitted to County General Hospital. Two days after plaintiff was admitted to [544 P.2d 619] [126 Cal.Rptr. 619] General Hospital, doctors told her that her leg muscles and back had been injured, either because the wound had been left open too long or 'because [of] the shot in the back.'
Plaintiff filed no declaration in opposition to the motion for summary judgment. The motion was granted and this appeal followed.
A defendant is entitled to a summary judgment only if his declaration establish that a cause of action cannot be sustained and the plaintiff fails by declaration or other competent means to establish that there is a triable issue of fact. (Code Civ.Proc., § 437c.) Here Dr. Pilson and the hospital failed to establish by declarations and plaintiff's testimony at deposition a necessary element to the bar of the statute of limitations.
Code of Civil Procedure section 340.5 states: 'In an action for injury . . . against a physician or surgeon . . . or a licensed hospital as the employer of any such person, based upon such person's alleged professional negligence . . . or for error or omission in such person's practice [the action must be commenced] four 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 first occurs. This time limitation shall be tolled for any period during which such person has failed to disclose any act, error, or omission upon which such action is based and which is known or through the use of reasonable diligence should have been known to him.'
Dr. Pilson and the hospital argue that the tolling provision of Code of Civil Procedure section 340.5 is applicable only to the maximum four-year period of limitations and does not apply to the one-year period from discovery of the injury. Plaintiff argues that the tolling provision is applicable to both time periods.
The syntax of section 340.5 supports a conclusion that the tolling provision is applicable to both the four and one year time periods. The period of limitations is phrased in terms of the four-year period from injury or the one-year period from discovery, 'whichever first occurs.' It is followed by the tolling provision prefaced by the phrase, 'This time limitation shall be tolled.' The words 'This time limitation' are expressed in the singular and apparently qualify and refer to the combined period of limitations 'whichever first occurs.' Thus tolling is applicable irrespective of whether the first to occur of the limitation periods is four years from injury or one year from discovery.
The legislative history of Code of Civil Procedure section 340.5 supports the same construction.
Beginning with the 1936 decision of our Supreme Court in Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908, California adopted the proposition that the statute of limitations upon medical malpractice commenced to run not from the date the injury was inflicted but rather from the date that it was discovered. By the late 1960's, the rule was established in California that, "In a suit for [medical] malpractice the statute of limitations commences to run when the plaintiff discovers the injury and its negligent cause or through the exercise of reasonable diligence should have discovered it." (Whitfield v. Roth, 10 Cal.3d 874, 885, 112 Cal.Rptr. 540, 548, 519 P.2d 588, 596, quoting from Wozniak v. Peninsula Hospital, 1 Cal.App.3d 716, 722, 82 Cal.Rptr. 84, emphasis in original.)
Motivated by the 'medical malpractice crisis,' the California Medical Association begining in 1968, sponsored legislation to shorten the open-end statute of limitations resulting from the rule of accrual of the claim upon discovery of injury and its negligent cause. (Comment, Medical Malpractice Cases, 2 Pacific L.J. 663, 668-669.) The effort was fruitless in the 1968 and 1969 sessions of the Legislature. (Id., p. 669.)
In 1970, the bill creating what is now section 340.5 of the Code of Civil Procedure[544 P.2d 620] [126 Cal.Rptr. 620] was introduced in the California Senate. As originally worded, the bill read that the statute of limitations applicable to medical malpractice was 'four 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 first occurs.' (2 Pacific L.J., supra, at p. 669.)
On April 17, 1970, at a hearing before the Senate Judiciary Committee, representatives of the California Trial Lawyers Association claimed that the bill as then worded would severly limit the right of recovery for the injured plaintiff whose delay in filing a claim was caused by fraudulent concealment by the medical practitioner of his own misconduct. (2 Pacific L. J., supra, at p. 669.) The bill was amended in committee to add a provision for tolling which read: '[t]he time limitation shell be tolled for any period during which such person [the medical practitioner] has intentionally concealed any act, error, or omission upon which such action is based.' (Id., at p. 670; S.B. 362, 1970 Regular Session, as amended April 17, 1970.) The bill, as amended to include the tolling provision, passed committee to the floor of the state Senate.
The bill was further amended on the floor of the Senate on April 27, 1970, to read in its present form providing that '[t]his time limitation shall be tolled for any period during which such person has failed to disclose any act, error, or omission upon which such action is based which is known or through the use of reasonable diligence should have been known to him.' (2 Pacific L.J., supra, at p. 670.)
The major thrust of the legislative activity leading to the adoption of Code of Civil Procedure section 340.5 was thus directed toward the ultimate four-year period of limitations (2 Pacific L.J., supra, at p. 668, fn. 41, citing letter from Senator Gordon Cologne, the bill's sponsor, to then Governor Ronald Reagan stating that the bill's purpose was to alleviate the need for malpractice insurers to maintain policy reserves past a four-year period).
There is not the slightest hint in any of its history that the bill was intended drastically to affect the case law definition of 'discovery' which could cause the period of limitations to expire at a time prior to the four year maximum. By providing that the statute of limitations begins to run from discovery or reasonable opportunity to discover the injury and not mentioning negligent cause of the damage, section 340.5 confers upon the medical practitioner a benefit of broader application of the statute of limitations than that previously in the law. The statute substitutes for the elminated tolling provision for lack of discovery of negligent cause an obligation upon the medical practitioner to disclose facts relevant to negligent cause which he knows or should know.
We thus conclude that both the one year and four year provisions of Code of Civil Procedure section 340.5 are tolled for failure of the medical practioner to disclose any act, error, or omission upon which the action for malpractice is based if the act, error, or omission is known to the practitioner or through the use of reasonable diligence should be known to him.
There remains the procedural issue of the burden of negating the medical practitioner's failure to disclose in the context of summary judgment. If the burden is that of the plaintiff, then the showing by defendants in support of their motion for summary judgment is sufficient since no issue of nondisclosure is raised by the complaint. If, however, the burden is upon Dr. Pilson and the hospital, the documentation in support of their motion for summary judgment is insufficient since plaintiff need not by her pleading anticipate affirmative matter that may be raised by the defendants.
Analysis of Code of Civil Procedure section 437c, which encompasses the summary judgment statute of California, indicates that the burden of negating defendants' [544 P.2d 621] [126 Cal.Rptr. 621] failure to disclose acts, errors, or omissions upon which the action is based is upon the defendants.
While in general a plaintiff seeking to avoid the bar of the statute of limitations by establishing lack of discovery of the existence of his cause of action has the burden of pleading and proving due diligence on his part (Bedolla v. Logan & Frazer, 52 Cal.App.3d 118, 129, 125 Cal.Rptr. 59; 2 Chadbourne, Grossman & Van Allstyne, California Pleading, § 992), the tolling provision of Code of Civil Procedure section 340.5 is of a special character. The statute of limitations is tolled by reason of the medical practitioner's failure to disclose acts, errors, or omissions known or which should have been known to him upon which the action against him is based. Those are facts peculiarly within the knowledge of the defendant practitioner. By definition, they are unknown to the plaintiff claiming medical malpractice unless disclosed.
Code of Civil Procedure section 437c states, in pertinent part: 'If a party is otherwise entitled to a summary judgment . . . summary judgment shall not be denied on the grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to such fact; or where a material fact is an individual's state of mind, or lack thereof, and such fact is sought to be established solely by the individual's affirmation thereof.'
The quoted language of section 437c compels that the summary judgment burden of negating knowledge or reasonable opportunity to acquire knowledge of undisclosed facts which cause the statute on medical malpractice to be tolled be placed upon the medical practitioner. If in moving for summary judgment the practitioner were to declare that he had not failed to disclose to the patient any act, error, or omission known to him or which should have been known to him, the trial court could, in its discretion, deny the motion if the practitioner were the sole declarant and witness to the facts or the sole declarant as to his relevant state of mind, i. e., his lack of knowledge. Unless the burden of negating the elements of tolling is placed upon the medical practitioner, the discretion to deny summary judgment to him contained in section 437c is read out of the section. If the burden is upon the plaintiff-patient, the medical practitioner by silence precludes the court from exercising the discretion granted it by the summary judgment law.
We must construe statutes to achieve a logical rather than an anomalous result where that is possible. A logical reconciliation of the tolling provision of Code of Civil Procedure section 340.5 and the summary judgment law encompassed in Code of Civil Procedure section 437c is achieved by construing the sections in combination to place the burden of negating tolling upon the medical practitioner moving for summary judgment.
We thus conclude that Dr. Pilson and the hospital having failed to negate the existence of the tolling provisions of Code of Civil Procedure section 340.5 in their moving papers in support of their motion for summary judgment, the trial court erred in granting the motion on the ground of the statute of limitations.
The judgment is reversed.
LILLIE, Acting P. J., concurs.
HANSON, Associate Justice (dissenting).
I dissent.
The majority opinion in reversing the summary judgment granted in favor of defendants pursuant to Code of Civil Procedure section 437c, concludes (1) that the [544 P.2d 622] [126 Cal.Rptr. 622] tolling provision of Code of Civil Procedure section 340.5 applies to both the one-year and four-year periods contained in that section, and (2) that the defendants had the burden of negating the existence of the tolling provision in their moving papers in support of their motion for summary judgment. I disagree.
I conclude (1) that the tolling provision set forth in Code of Civil Procedure section 340.5 applies only to the four-year period and not to the one-year period, and (2) that the motion for summary judgment was directed toward the running of the one-year period, having occurred first, and was properly granted.
I further conclude that even if the tolling provision was germane to the case at bench that the burden remains, as is generally the case, with the plaintiff to raise and preserve the tolling as a triable issue of fact which she could have done (if applicable) but did not do, having filed no affidavits in opposition.
DISCUSSION
I
As to the Operative Effect of Code of Civil Procedure Section 340.5 Relative to the Case at Bench:
Code of Civil Procedure section 340.5, after listing those persons of the healing arts to which the section applies and establishing the scope of the actions applicable, fixes two alternative limitation of actions periods in the disjunctive or 'whichever first occurs.' (Italics added.) The first alternative period provides that such actions be barred 'four years after the date of injury.' The second alternative period provides that such actions will be barred 'one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury.' (Italics added.) The special tolling provision states: 'This time limitation shall be tolled for any period during which such person has failed to disclose any act, error, or omission upon which such action is based and which is known or through the use of reasonable diligence should have been known to him.'
In perspective over-view terms considering the section in its entirety, I perceive the intended legislative operational effect of section 340.5 to be that whenever a person discovers or should have through reasonable diligence discovered the injury, he or she has one year thereafter within which to file his or her action or it will be barred except in no event can the action be filed later than the four-year maximum after the alleged injury unless, where the plaintiff was excusably ignorant of the facts, the special tolling provision, if applicable, extends the time beyond the four-year period to the actual time of discovery or through the exercise of reasonable diligence should have discovered the injury, at which time he or she has an additional one year within which to file.
The above interpretation is logical because the "whichever first occurs' provision makes it clear that, even though the plaintiff was excusably ignorant of the facts, the action will be barred in 4 years unless the special tolling rule applies' (2 Witkin, Cal.Procedure (2d ed. 1970), Actions, § 317, New Statutory Rule, p. 1161), and it takes into consideration and gives full value to the theory and public policy behind all statutes of limitations.
The special tolling for nondisclosure provision in section 340.5 simply acknowledges the nature of the relationship between a medical practitioner and his patient as that of a fiduciary. It is completely compatible with the basic proposition that a statute of limitations was intended as a shield for protection against stale claims but not used to perpetrate a fraud or to escape the breach of the fiduciary duty 'to disclose any act, error, or omission upon which such action is based and which is known or through the use of reasonable diligence should have been known to him' as provided in the tolling provision. Thus, the special tolling provision, in a case where a plaintiff is excusably ignorant of the facts [544 P.2d 623] [126 Cal.Rptr. 623] does not allow a medical practitioner who has breached his fiduciary duty to disclose to employ the statute to avoid liability. It operates, by analogy, similarly to the situation where fraudulent concealment of facts on which a plaintiff's action or right of recovery may be based, under proper circumstances, tolls the statute of limitations until plaintiff discovers or in the exercise of reasonable diligence should have discovered the facts. (Sears, Roebuck & Co. v. Blade, 139 Cal.App.2d 580, 294 P.2d 140.)
By analogy, the court in Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, at page 189, 98 Cal.Rptr. 837, at page 845, 491 P.2d 421, at page 429 (a legal malpractice case), said: 'Postponement of accrual of the cause of action until the client discovers, or should discover, the material facts in issue vindicates the fiduciary duty of full disclosure . . ..' (Italics added.) Thus, I conclude in respect to section 340.5 that if a patient discovers or through reasonable diligence should have discovered the injury within the four-year period, the lesser one-year statute, which occurred first, starts to run and there is no longer a need for the tolling provision because the medical practitioner's breach of his fiduciary duty by failing to disclose has been 'short circuited' by the patient's discovery.
The above interpretation of section 340.5 is in tune and in complete harmony with the public policy and theory behind the statute of limitations. A statute of limitations is procedural; it affects the remedy only, not the substantive right or obligation. It is described as one of 'repose' to prevent the assertion of stale claims. It is 'favored by the law' as a meritorious defense. (2 Witkin, Cal.Procedure (2d ed. 1970), Actions, §§ 224, 225, pp. 1082-3.) It is 'enacted as a matter of public policy to promote justice by preventing the assertion of stale claims after the lapse of long periods of time--or at least the periods designated in the statute--to the suprise [sic] of parties or their representatives, perhaps fraudulently, after evidence has been lost, memories have faded, and witnesses have disappeared or died, making it impossible or extremely difficult to prove the actual facts or make a fair presentation of the case. . . . [T]he theory is that even if one has a just claim it is unjust not to put his adversary on notice to defend within the statutory period and that the right to be free of stale claims prevails over the right of the claimant to prosecute them. It is not intended to defeat just claims of comparatively recent origin, or to assume the success of a defendant's fraud, but definite periods of time must be fixed; and if the specified time has elapsed before the commencement of an action, the defense of the statute will be upheld no matter how unjust or unconscionable the defense may be.' (31 Cal.Jur.2d, Limitation of Actions, § 2; 53 C.J.S. Limitations of Actions § 1.)
To hold here that the tolling provision also applies to the one year after discovery period, in my opinion, violates the theory behind such a statute as described above and would render that portion of section 340.5 virtually meaningless.
Accordingly, for the reasons discussed above, inasmuch as the record on appeal in the case at bench reflects that the thrust of defendants' motion for summary judgment is based on the running of the one-year period of section 340.5, the tolling provision in that section is immaterial and irrelevant. However, arguendo, even if the special tolling provision was applicable, in my view, once the defendants' moving papers asserted the running of the statutory period, the burden remains with the plaintiff, not defendant, as is generally required in civil actions, to preserve as a triable issue the 'tolling' in order to avoid the bar. Here, plaintiff filed no counter affidavits to defendants' motion for summary judgment or otherwise availed herself of the pertinent provisions in Code of Civil Procedure section 437c to accomplish that purpose, if applicable.
[544 P.2d 624] [126 Cal.Rptr. 624] II
As to the Operative Effect of Code of Civil Procedure Section 437c Relative to the Case at Bench:
Code of Civil Procedure section 437c, as modified in 1973, having concluded that the special tolling provision is not applicable to the instant case, in pertinent part provides: 'Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto. . . .
'The motion shall be supported or opposed by affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken.
'Such motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the admissible evidence set forth in the papers and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.
'. . .
'If it appears from the affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as may be just. . . .'
The purpose of the summary judgment procedure is not to try the issues, but merely to determine whether there are issues to be tried. Thus, issue finding, rather than issue determination, is the pivot upon which the summary judgment law turns. (4 Witkin, Cal.Procedure (2d ed. 1971), Proceedings Without Trial, § 191, pp. 2839-2841.)
The California Supreme Court in D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10, summarized the salient, well established rules governing summary judgment procedure. I quote at length from pages 20-22, 112 Cal.Rptr. page 800, 520 P.2d page 24: "'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.' (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788; see Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 146-148, 60 Cal.Rptr. 377, 429 P.2d 889.)' (Corwin v. Los Angeles Newspaper Sarvice Bureau, Inc. (1971) 4 Cal.3d 842, 851-852, fn. 6, 94 Cal.Rptr. 785, 484 P.2d 953, setting forth general rules regarding the sufficiency of affidavits, is omitted.) On the other hand this rule of caution should not be allowed to sap the summary judgment procedure of its effectiveness in cases wherein the party against whom the procedure is directed seeks to screen the lack of triable factual issues behind adept pleading. 'The question therefore is not whether defendant [544 P.2d 625] [126 Cal.Rptr. 625] states a good defense in his answer but whether he can show that the answer is not an attempt 'to use formal pleading as means to delay the recovery of just demands.' (Fidelity & Deposit Co. v. United States, 187 U.S. 315, 320, 23 S.Ct. 120, 123, 47 L.Ed. 194 . . ..') (Coyone v. Krempels (1950) 36 Cal.2d 257, 262, 223 P.2d 244, 247.)
'Finally, it is necessary to make some observations concerning the application of the foregoing rules in cases wherein the affidavits of a party incorporate by reference the fruits of its efforts under discovery procedures. It is clear beyond doubt that the consideration of such fruits on a motion for summary judgment is proper and wholly consistent with the intent and purposes of the summary judgment procedure. 'When discovery properly used, makes it 'perfectly plain that there is no substantial issue to be tried' [citing case], section 437c, Code of Civil Procedure, is available for prompt disposition of the case.' [Citing cases.]
'Moreover, when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried certain of those stern requirements applicable in a normal case are relaxed or altered in their operation. Thus, in King v. Andersen, supra, 242 Cal.App.2d 606, 51 Cal.Rptr. 561, the rule providing for liberal construction of counteraffidavits was held not to require reversal of a summary judgment for defendants where the plaintiff in an assault case, although having stated in his counteraffidavit that unnecessary force was used, nevertheless had stated in a previous deposition that no force was used; refusing to find that a triable issue was thus presented, the court said: 'Where, as here, however, there is a clear and unequivocal admission by the plaintiff, himself, in his deposition . . . we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.' (242 Cal.App.2d at p. 610, 51 Cal.Rptr. at p. 563.) And in Newport v. City of Los Angeles, supra, 184 Cal.App.2d 229, 7 Cal.Rptr. 497, the sufficiency of the moving party's affidavit was challenged on the basis, inter alia, of the rule requiring that only facts within the personal knowledge of the moving party, as to which he could give competent testimony at trial, be given effect when considering the sufficiency of his affidavits. Affirming the summary judgment, the court held that the affidavit was sufficient where the moving party incorporated therein verified admissions of the apposing party concerning which he, the moving party, could claim neither personal knowledge nor competency to testify. (184 Cal.App.2d at p. 236, 7 Cal.Rptr. 497; see also Rader v. Thrasher (1972) 22 Cal.App.3d 883, 889-890, 99 Cal.Rptr. 670.)
'The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts (see Evid. Code, §§ 1220-1230) admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits. (See generally Bauman, California Summary Judgment: A Search for A Standard (1963) 10 U.C.L.A.L.Rev. 347, especially pp. 350-351, 357-360.)'
Turning to the case at bench, defendants' motion and supporting moving papers for summary judgment in the trial court are directed at the one-year period contained in Code of Civil Procedure section 340.5 ('one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury'). (Italics added.)
[544 P.2d 626] [126 Cal.Rptr. 626] Defendants' moving papers show (1) that the complaint was filed on April 16, 1973, and (2) that the last contact plaintiff had with defendants was March 30, 1972, the date of her discharge from the hospital--more than one year prior to filing the action.
Defendants incorporated in their moving papers portions of plaintiff's deposition taken under oath on July 25, 1974. Plaintiff's answers in the deposition reflect: that defendant doctor performed a caesarian section; that the baby died; that she thought the doctors and nurses had done something wrong; that 'flesh and pus' were coming out of the scar from the caesarian section; that when she was released from the hospital 'things fell down from there' (the incision opening); that something was wrong with the wound; that the stitches were wrong; that she thought the defendant doctor or other doctors had done something wrong when they sewed her up; that a boy at defendant hospital told her 'Look how you are. They have done a mess with you,' and advised her to report it to the hospital director; that by the time she was discharged from the defendant hospital she agreed with the boy that the doctors had made a mess of her stomach; that when she left the defendant hospital on March 30, 1972, she 'had decided to sue' the defendant doctor.
The certificate of fetal death attached as an exhibit to the motion for summary judgment states the immediate cause of the fetal death was prenatal asphyxia to or as a consequence of possible syphilis and macerated fetus.
The plaintiff filed no affidavits in opposition to defendants' motion.
CONCLUSION
In the instant case, in the absence of counter affidavits by plaintiff, I conclude that defendants' moving papers pursuant to code of Civil Procedure section 437c, including the admissions by plaintiff in her deposition referred to above and taking cognizance of the weight to be afforded them by D'Amico, supra, are sufficient to sustain a judgment based on the complete defense of the running of the one-year statute of limitations pursuant to Code of Civil Procedure section 340.5; i.e., that plaintiff discovered or through the use of reasonable diligence should have discovered the injury to her not later than March 30, 1972, which was more than one year prior to the filing of her action on April 16, 1973, and the lower court's finding that there is no substantial evidence of the existence of a triable issue of fact.
I would affirm the judgment.
[*] Opinion that appeared on pages 238 to 251 was modified and reprinted at post, page 1030. Opinions that appeared on pages 252 to 285 were deleted due to hearings granted.