Opinion
G044382 Super. Ct. No. 30-2009-00332871
10-31-2011
ROBERT JONES et al., Plaintiffs and Appellants, v. JAMES T. CAILLOUETTE et al., Defendants and Respondents.
Salvatore Coco and Sandra J. Applebaum for Plaintiffs and Appellants. Schmid & Voiles, Denise H. Greer and Rebecca J. Hogue for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed.
Salvatore Coco and Sandra J. Applebaum for Plaintiffs and Appellants.
Schmid & Voiles, Denise H. Greer and Rebecca J. Hogue for Defendants and Respondents.
INTRODUCTION
Plaintiffs and appellants Robert Jones and Betsy Alton (collectively, Plaintiffs) appeal from a judgment entered after the trial court granted the motion for summary judgment of defendants and respondents James T. Caillouette, M.D., Steven R. Beanes, M.D., Colleen L. Coleman, M.D., and Alan C. Schwartz, M.D. (collectively, Defendants). The trial court granted summary judgment on the ground Plaintiffs' complaint was time-barred because it was filed after the one-year statute of limitations period for their medical malpractice cause of action had expired.
Plaintiffs argue their complaint was timely filed because they served notice of their intent to sue pursuant to Code of Civil Procedure section 364 (further code references are to the Code of Civil Procedure unless otherwise indicated). Section 364 tolls the statute of limitations for a medical malpractice cause of action for 90 days when notice is served within the last 90 days of the prescribed limitations period. Plaintiffs argue (1) their section 364 notices satisfied the requirements of section 364 and (2) if their section 364 notices are deemed inadequate, they nonetheless tolled the statute of limitations for 90 days pursuant to section 364, subdivision (d) because, under section 365, failure to comply with section 364 does not affect the trial court's jurisdiction.
We review summary judgment de novo (Dominguez v. American Suzuki Motor Corp. (2008) 160 Cal.App.4th 53, 57) and affirm. We conclude (1) Plaintiffs' section 364 notices did not satisfy the requirements of section 364 and (2) a section 364 notice which does not satisfy the statutory requirements does not toll the statute of limitations under section 364, subdivision (d). Plaintiffs' complaint was barred by the statute of limitations because it was filed more than one year after the limitations period commenced.
FACTS AND PROCEDURAL HISTORY
The facts of this case are not in dispute. Plaintiffs alleged Defendants negligently caused Jones's injuries sometime in October 2008. On October 6, 2009, Plaintiffs served a section 364 notice on each Defendant. The notices were dated October 5, 2009, included the client names "Robert Jones" and "Betsy Alton (Betsy Alton Jones)," and identified the date of the incident as "October 7, 2008, and thereafter." Each notice stated: "Please accept this correspondence as notice of our intent to institute a lawsuit against you for care rendered to the above-referenced patient/client. [¶] This action will be filed ninety (90) days from the date of this correspondence, pursuant to California Code of Civil Procedure §364. [¶] If you have any questions, please feel free to contact me at your convenience."
For purposes of this appeal, the exact date of the injuries is not relevant because the complaint was filed in December 2009, over a year after the one-year statute of limitations started running in October 2008.
On October 9, 2009, the Cooperative of American Physicians sent Plaintiffs' counsel a letter, on behalf of Beanes, Coleman, and Schwartz, acknowledging receipt of the "CCP Section 364 Notices you sent them." The "Re" field of the letter identified the patient as Robert Jones.
Plaintiffs filed their complaint for medical malpractice and loss of consortium against Defendants in December 2009, over a year after the alleged injuries were inflicted. In June 2010, Defendants filed a motion for summary judgment arguing the "complaint is barred by the applicable one-year statute of limitations, C.C.P. section 340.5." Defendants argued the complaint was time-barred because it was filed after the expiration of the applicable one-year statute of limitations of section 340.5 or, alternatively, the notice of intent to sue letters, dated October 5, 2009, were not sufficient to extend the one-year statute of limitations by 90 days under section 364. Defendants argued the letters failed to notify them of the legal basis of Plaintiffs' claims and the type and nature of the injuries suffered, and therefore did not toll the one-year statute of limitations.
The trial court granted Defendants' motion for summary judgment, and Plaintiffs timely appealed from the subsequently entered judgment.
DISCUSSION
I.
Plaintiffs' Section 364 Notices Did Not Satisfy
the Statutory Requirements.
Section 340.5 sets forth the statute of limitations for medical malpractice cases. Section 340.5 requires medical malpractice actions be brought within the earlier of three years from the date of injury or "one year after the plaintiff discovers" the injury. The parties agree that the applicable statute of limitations in this case is one year. Section 364, subdivision (d) tolls the statute of limitations for 90 days if the notice of intent to sue is served on the health care provider within the last 90 days of the applicable statute of limitations. (Woods v. Young (1991) 53 Cal.3d 315, 325 (Woods).)
The parties in this case disagree whether the section 364 notices provided enough information to meet the statutory requirements. Plaintiffs gave Defendants notice of intent to sue within the last 90 days of the one-year statute of limitations. Plaintiffs filed their complaint in December 2009, alleging injuries that occurred in October 2008. If the notices given were sufficient, then section 364, subdivision (d) extended "the time for the commencement of the action" by 90 days, and Plaintiffs' complaint was timely. (Woods, supra, 53 Cal.3d. at p. 325.) If the notices are deemed inadequate, then Plaintiffs' complaint was filed after the one-year statute of limitations expired.
According to section 364, subdivision (b): "No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered." The "purpose of the requirements of Code of Civil Procedure section 364 is to place the health care provider on notice as to the alleged injuries which have been suffered by the plaintiff." (Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1204 (Anson).)
In Anson, supra, 202 Cal.App.3d at pages 1203-1204, the court addressed whether a claim served under Government Code section 910 was adequate to meet the notice requirements under Code of Civil Procedure section 364 for individual physicians. The claim under the Government Code was served on the Merced County Board of Supervisors and stated: "'This is a claim for medical malpractice which occurred on February 24, 1986, at the Merced Community Medical Center.'" (Anson, supra, at pp. 1198, 1204.) Several months later, the plaintiff served section 364 notices on the medical care providers. (Id. at p. 1198.) The trial court concluded the plaintiffs claim under the Government Code constituted notice under section 364 and, therefore, the later notices to the medical care providers did not extend the statute of limitations. (Anson, supra, at p. 1203.) The Court of Appeal, reversing the order of dismissal, concluded the claim under the Government Code did not satisfy section 364. (Anson, supra, at pp. 1204-1205.) The court held section 364 "requires specificity with regard to the nature of the injuries suffered" and, "[h]ere, the claim falls significantly short of the specificity requirement" because it did not mention the type of injuries suffered or the names of the physicians allegedly involved. (Anson, supra, at p. 1204.)
Here, the notices provided to Defendants stated in relevant part: "Please accept this correspondence as notice of our intent to institute a lawsuit against you for care rendered to the above-referenced patient/client. [¶] This action will be filed ninety (90) days from the date of this correspondence, pursuant to California Code of Civil Procedure §364." The notices contained even less information than the notice provided in Anson. Although the notices were addressed to each Defendant individually, they did not describe the nature of Plaintiffs' alleged injuries, did not identify the legal basis of Plaintiffs' claims, and did not state the type of loss sustained. The notices therefore did not satisfy section 364's requirements.
II.
A Section 364 Notice Which Fails to Satisfy the Statutory
Requirements Does Not Toll the Statute of Limitations.
Plaintiffs contend their section 364 notices tolled the statute of limitations even if they were inadequate. The sole remedy for inadequate notice, Plaintiffs argue, is
set forth in section 365, which states: "Failure to comply with this chapter shall not invalidate any proceedings of any court of this state, nor shall it affect the jurisdiction of the court to render a judgment therein. However, failure to comply with such provisions by any attorney at law shall be grounds for professional discipline and the State Bar of California shall investigate and take appropriate action in any such cases brought to its attention."
Plaintiffs confuse the issue of jurisdiction with the issue whether inadequate notice tolls the statute of limitations. In civil cases, the statute of limitations is generally not jurisdictional; therefore, a court might have jurisdiction but nonetheless dismiss a case because the statute of limitations expired. (People v. Williams (1999) 77 Cal.App.4th 436, 457-458 ["In civil cases, the statute of limitations is not jurisdictional but merely serves a procedural function and constitutes an affirmative defense that is waived unless pleaded and proved"].) Under section 365, a trial court has jurisdiction over a medical malpractice action even if the plaintiff failed to provide notice under section 364. (Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 268 (Toigo).) The relevant issue here is not jurisdiction, but whether an inadequate section 364 notice tolls the statute of limitations.
Whether a plaintiff who gives inadequate notice can take advantage of the tolling period is governed by section 364, subdivision (d). Tolling under section 364, subdivision (d) allows a plaintiff who gives notice the full benefit of the applicable statute of limitations. (Woods, supra, 53 Cal.3d at pp. 325-326.) A plaintiff who fails to give notice cannot reap the benefits of the tolling period attached to the section 364 notice requirements. (Godwin v. City of Bellflower (1992) 5 Cal.App.4th 1625, 1632, fn. 5 ["Nothing in section 365 suggests, however, that noncompliance with section 364, subdivision (a) extends jurisdiction where none otherwise exists"].) Likewise, inadequate notice also does not toll the statute of limitations; otherwise, the notice requirements would be irrelevant.
In Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180 (Edwards), the court held an inadequate section 364 notice does not bar a plaintiff from bringing a claim if it is "not otherwise barred by the statute of limitations." In Edwards, the plaintiff served a timely section 364 notice that identified alleged injuries resulting from reconstructive breast surgery but did not mention nasal surgery. (Id. at p. 175.) The plaintiff's initial complaint alleged the defendant negligently performed the breast surgery. (Ibid.) The plaintiff later sought to amend her complaint to add the injuries arising from the nasal surgery. (Id. at p. 176.) The trial court sua sponte raised the issue whether the plaintiff's section 364 notice barred her from asserting a claim based on the nasal surgery, and denied the motion for leave to file an amended complaint. (Id. at p. 177.)
The Court of Appeal, concluding the trial court should have granted leave to amend, held the plaintiff's section 364 notice did not prevent her from amending the complaint to add injuries from the nasal surgery because, under section 365, a complete failure to comply with the statute does not "invalidate" a medical malpractice action. (Edwards, supra, 93 Cal.App.4th at p. 179-180.) The Edwards court did not address directly whether lack of or inadequate notice tolls the statute of limitations under section 364, subdivision (d) because the statute of limitations was not an issue before the trial court or on appeal. The Edwards court recognized, however, that section 365 would not save a time-barred complaint: "A logical application of the rule that court proceedings are not invalidated by a total failure to serve the section 364 notice is that failure to specify in the section 364 notice all injuries suffered cannot bar a plaintiff from including the injury unintentionally omitted from the notice in the lawsuit against the medical practitioner if it is not otherwise barred by the statute of limitations." (Edwards, supra, at p. 180, italics added.)
As discussed previously, Plaintiffs' notices were inadequate and did not comply or even substantially comply with section 364's requirements. Plaintiffs' inadequate notices are no different from failure to give notice, which would not toll the statute of limitations. In the case of either inadequate notice or failure to give notice, there is noncompliance with section 364. Therefore, Plaintiffs' inadequate notices did not toll the statute of limitations.
We do not address whether substantial compliance with the section 364 notice requirement tolls the statute of limitations because, as discussed in part I of the Discussion, Plaintiffs' notices do not substantially comply with the statute.
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Plaintiffs interpret section 365 as allowing the statute of limitations to toll even if notice given under section 364 is inadequate. The sole remedy for an inadequate section 364 notice, Plaintiffs contend, is disciplinary action against the plaintiff's attorney. We disagree with Plaintiffs' interpretation.
Plaintiffs rely on Toigo, supra, 103 Cal.App.3d 267, for support of their argument that inadequate notice still tolls the statute of limitations. But Toigo stands for the proposition that under section 365, failure to give notice does not deprive a court of jurisdiction when the complaint is filed within the one-year statute of limitations. (Toigo, supra, at p. 268.) Toigo did not address whether, under section 364, inadequate notice tolls the statute of limitations under section 364, subdivision (d) when notice is given in the last 90 days of the applicable period.
Pursuant to the reasoning set forth in Edwards, supra, 93 Cal.App.4th at page 180, Plaintiffs' section 364 notices, though inadequate, would allow Plaintiffs to file a complaint within the applicable statute of limitations period. But the applicable one-year statute of limitations was not tolled due to Plaintiffs' failure to meet the requirements set forth in section 364. Because Plaintiffs did not file a complaint within the one-year period, their lawsuit is time-barred.
DISPOSITION
The judgment is affirmed. Defendants shall recover costs incurred on appeal.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.