Opinion
B207345
4-22-2009
NAELLA KABARDYAN, Plaintiff and Appellant, v. CEDARS SINAI MEDICAL CENTER, et al., Defendants and Respondents.
Law Offices of Alfred O. Anyia, Alfred O. Anyia; Law Offices of Egbase & Associates, Gerald O. Egbase and Jonathan L. Nielsen for Plaintiff and Appellant. Reback, McAndrews & Kjar, Reback, McAndrews, Kjar, Warford & Stockalper, Robert C. Reback and Cindy A. Shapiro for Defendants and Respondents.
Not to be Published in the Official Reports
Naella Kabardyan sued surgeon Ilana Cass, M.D. and Cedars Sinai Medical Center, alleging medical negligence in a hysterectomy procedure. The trial court granted summary judgment in defendants favor. We reverse the summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Cass performed a hysterectomy on Kabardyan at Cedars Sinai Medical Center on or about March 17, 2006. Approximately one week later, she experienced complications which suggested to her that something had gone wrong at the surgery. On or before April 10, 2006, a urologist told her that her ureter had been damaged by Cass during the procedure. Kabardyan filed her complaint on June 1, 2007. After motion practice, only the medical negligence cause of action remained.
Defendants filed a motion for summary judgment, contending that the statute of limitations for the professional negligence cause of action had expired prior to the filing of the action. The trial court granted summary judgment. Kabardyan appeals.
DISCUSSION
Kabardyan contends that the summary judgment should be reversed because there exists a triable issue of material fact as to whether notices of intent to sue were served on March 8, 2007, and she also contends that the trial courts evidentiary rulings were erroneous. "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) "Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists where "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, at p. 850.)
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
Where summary judgment has been granted, we review the trial courts ruling de novo and independently examine the record to determine whether there is a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 860.) In performing our de novo review, we consider all evidence presented by the parties in connection with the motion (except that which the trial court properly excluded) and all uncontradicted inferences that the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) In so doing, we strictly construe the moving partys evidence and liberally construe the opposing partys, "accept[ing] as undisputed only those portions of the moving partys evidence that are uncontradicted." (Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, 382.) We affirm summary judgment where the papers and pleadings show that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).)
Although the parties make a variety of arguments concerning the summary judgment and the courts evidentiary rulings, the key issue for us to determine is whether there exists any disputed issue of material fact that precludes resolution of the matter at the summary judgment stage. Here, there is a triable issue of material fact as to whether Kabardyan sent notices of intent to sue (and therefore as to whether the action is barred by the statute of limitations), and the summary judgment must therefore be reversed.
A. Evidence and Proceedings in the Trial Court
The central question raised by the motion for summary judgment was whether Kabardyan had served a notice of intent to file a professional negligence action as required by section 364. Such a notice, if served within 90 days of the expiration of the statute of limitations, extends the time within which to commence an action by 90 days. (§ 364, subd. (d).) Based on the timing of events and filings, it appears that without this extension, Kabardyans action was not timely filed; with the extension that would be conferred by a notice of intent to sue, the action was timely filed. (§ 340.5.)
The defendants attempted to establish that there was a complete statute of limitations defense to the cause of action asserted against them by asserting as an undisputed issue of material fact that no notices of intent to sue had been sent to them. To support this assertion of material fact, defendants submitted the following evidence: the complaint and first amended complaint, both of which included assertions that the notice to sue letter had been served on March 8, 2007, and stated that the letters were attached as an exhibit, but neither of which included a copy of an intent to sue letter; the declaration of counsel that "Neither Dr. Cass [n]or the Risk Management Department at Cedars Sinai Medical Center received a Notice of Intent to Sue letter from Naella Kabardyan or her attorneys;" a November 2007 deposition excerpt in which Kabardyan testified that she had first contacted her attorneys "[a] few months ago;" and the verified responses to two requests for production. The requests for production had asked for "[a]ny and all correspondence sent by YOU or YOUR ATTORNEYS to Cedars Sinai Medical Center relating to or referring to the medical treatment you received at Cedars Sinai Medical Center from January 2006 to present," and "[a]ny and all correspondence sent by YOU or YOUR ATTORNEYS to Ilana Cass, M.D. relating to or referring to the medical treatment YOU received at Cedars Sinai Medical Center from January 2006 to present." Kabardyan had responded that she did "not possess the requested documents."
Based on the evidence that the notices were not attached to the complaint or the amended complaint; the attorneys statement (properly ruled inadmissible because it was made without personal knowledge) that the defendants had not received the notices; the inference that if Kabardyan had contacted her attorneys only "a few months ago" as of November 2007, those attorneys could not have sent a notice to sue in March 2007; and the fact that the notices of intent to sue were not produced in response to discovery requests seeking all correspondence "relating or referring to the medical treatment" Kabardyan had received, the defendants contended that there was no disputed issue of material fact: They had established that the action was barred by the statute of limitations because no notices of intent to sue were sent and the action was filed more than one year after Kabardyan discovered her alleged injury.
In her opposition, Kabardyan contended that notices of intent to sue were sent to both defendants on March 8, 2007. She submitted her counsels declaration that the notice was mailed and copies of two notice of intent letters dated March 8, 2007, and she also relied on the unverified First Amended Complaints allegation that the notice letters had been sent. Kabardyan declared that she had not understood the requests for production as encompassing her counsels notices of intent to sue, and that having been informed by opposing counsel that they intended the requests for production to include those documents, she had provided supplemental responses to that discovery. Her counsel declared that he had not considered the notices to sue to be correspondence relating to Kabardyans medical treatment but rather legal notices preparatory to the filing of the complaint. Kabardyan also objected to opposing counsels declaration that the parties had not received notices of intent to sue.
Kabardyan contends that the complaint and amended complaint were verified, but the copies of those documents included in the record on appeal do not include verifications.
With their reply papers, defendants submitted declarations from Cass and Cedars Sinais Risk Management Administrator in which each asserted that she had not received a notice of intent to sue from Kabardyan. Kabardyan objected to the submission of new evidence with the reply papers. The following week, Kabardyan submitted additional evidence to the court: a document that purported to be the mail log from Kabardyans counsels office, showing letters sent on March 8, 2007 to Cass and to Cedars Sinai Medical Center. Kabardyans counsel declared that this was a true and correct copy of the mail log kept by his office to track the costs of outgoing mail for billing purposes. Defendants objected to the mail log and declaration on the ground that they "lack[ed] foundation and credibility." Defendants argued that the log was obviously false on its face for several reasons, including the facts that it listed the postage rate at 41 cents in March 2007, but the postage rate for a one-ounce letter was 39 cents until May 2007; and the rate increase to 41 cents was not approved by the United States Postal Services Board of Governors until March 19, 2007.
At the hearing on the summary judgment motion, the trial court sustained Kabardyans objection to the portion of opposing counsels declaration in which she had declared that the parties had not received notices of Kabardyans intent to sue. The court found that the attorney lacked personal knowledge of this purported fact. The court did not strike the allegations of nonreceipt of the notices from the defendants separate statement of material facts because they were not based solely on the stricken declaration passage. The court overruled the defendants objections to Kabardyans evidence. The court also overruled Kabardyans objection to the two declarations submitted with the reply papers, stating, "Its just a different declarant saying the same thing after plaintiff raised an objection."
Kabardyan contends on appeal that this ruling was erroneous, but we need not address this evidentiary ruling because even if the challenged evidence was properly considered by the trial court, the summary judgment was improperly granted.
The trial court concluded that with her deposition statement and discovery responses, Kabardyan had committed herself to the position that she had not sent notices to sue. The court construed her showing in opposition to the motion for summary judgment as an attempt to contradict her previous deposition and declaration testimony, and believed that this was impermissible under DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (DAmico). Accordingly, the court concluded that undisputed facts showed that notices of intent to sue were not served on the defendants, and it granted summary judgment.
B. Kabardyan Did Not Contradict Her Prior Deposition Testimony or Discovery Responses
In concluding that Kabardyan had committed herself to the position that she had not sent notices of intent to sue, the trial court disregarded Kabardyans evidence that her counsel had sent intent to sue letters in March 2007 on the basis that it contradicted her prior responses and testimony, stating that under the authority of DAmico, supra, 11 Cal.3d 1, Kabardyan was "not entitled to do that, not entitled to contradict." The trial courts application of the principles of DAmico was in error.
In DAmico, supra, 11 Cal.3d 1, the Supreme Court held that a party may not defeat summary judgment by means of declarations or affidavits that contradict a partys sworn discovery responses. (Id. at p. 21 ["`Where . . . 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. [Citation]"].) The court, therefore, had the discretion to disregard evidence that was directly contradictory to Kabardyans discovery responses and her deposition testimony.
Equivocal discovery responses, however, have never been found to require application of the DAmico rule to exclude subsequent declaration testimony. In Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482, the court cautioned that "an uncritical application of the DAmico decision can lead to anomalous results, inconsistent with the general principles of summary judgment law. We do not interpret the decision, however, as saying that admissions should be shielded from careful examination in light of the entire record. A summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence."
Properly applied, DAmico, supra, 11 Cal.3d 1, permits the trial court to disregard a partys declaration testimony only where the declaration and the discovery responses are "contradictory and mutually exclusive" (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 862-863) or "diametrically opposed" (Gray v. Reeves (1977) 76 Cal.App.3d 567, 574), or where the declaration contradicts "unequivocal admissions" in discovery (Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 162; see also Daddario v. Snow Valley, Inc. (1995) 36 Cal.App.4th 1325, 1333, 1341 [plaintiffs declaration did not raise triable issue where it "directly contradict[ed] what she had testified to in her deposition"]). This is not such a case.
The discovery responses and deposition testimony cited by the defendants do not constitute the clear and unequivocal admissions necessary to invoke the DAmico rule. (DAmico, supra, 11 Cal.3d at p. 21.) The requests for production on which defendants rely sought all correspondence sent by Kabardyan or her attorneys to the defendants "relating to or referring to the medical treatment" she received at Cedars Sinai Medical Center within a specified time period. In her responses, Kabardyan stated that she did not possess any requested documents. She did not concede that she had never sent notices of intent to sue. In the papers opposing summary judgment, Kabardyans counsel explained that he did not understand the discovery requests to be seeking the notices of intent to sue. He declared, "I interpreted these requests as requesting correspondence regarding specific problems with the surgery or the treatment. I did not however, interpret this request as requesting [other counsels] previous correspondence concerning Plaintiffs intent to commence an action. I considered this correspondence as a legal document which had to be sent pursuant to C[ode of Civil Procedure] Section 364, a pre-requisite to filing an action, rather than a correspondence regarding medical treatment." Kabardyan, too, declared that she had no understanding that the discovery requests were intended to include the notices of intent to sue.
The declarations and the discovery responses are easily reconciled and are not mutually exclusive, and there is no contradiction between them. The request for production was not sufficiently specific and unambiguous that Kabardyans response can be interpreted as meaning that she or her counsel did not send an intent to sue notice: It is not clear and unmistakable that a notice of intent to sue would constitute correspondence referring to medical treatment. The trial court erred in concluding that the declaration contradicted the discovery testimony. Similarly, Kabardyans deposition testimony did not constitute an admission or concession that she had not sent notices of intent to sue. At her November 2007 deposition, she said that she had first consulted counsel "a few months ago." Defendants argue, and apparently the trial court agreed, that this vague timeline constituted an admission that no notices of intent to sue were sent in March 2007, but the deposition testimony is not sufficiently specific to be considered a clear and unequivocal admission under DAmico, supra, 11 Cal.3d 1. Kabardyan later declared that she retained counsel on February 21, 2007. While eight months may not commonly be described as "a few months," the two accounts of when Kabardyan retained counsel are not mutually exclusive. Obviously Kabardyan used the term "a few months" broadly, because she had necessarily consulted counsel prior to their filing of the complaint on June 1, 2007, and that was more than five months prior to the deposition. We cannot say as a matter of law that a "few" months can mean five months but it cannot mean eight. Accordingly, the specific date given in Kabardyans declaration did not contradict an unequivocal admission at deposition. The trial court erred in concluding that this declaration contradicted Kabardyans prior deposition testimony and in failing to consider it as evidence that demonstrated that a triable issue of material fact existed as to the facts that would establish a statute of limitations defense to Kabardyans claim.
C. A Triable Issue of Material Fact Existed
The triable issue of material fact here was whether Kabardyan sent notices of intent to sue to the defendants on March 8, 2007, because if they were not sent, the statute of limitations would bar the action. (§ 340.5.) As discussed above, the defendants produced some evidence from which it could be inferred that the notices were not sent. In turn, Kabardyan produced evidence that they were—her counsels declaration that he had timely sent notices of intent to sue to the defendants—and that evidence was improperly disregarded as contradictory under DAmico, supra, 11 Cal.3d 1.
When Kabardyans evidence is properly considered, it is clear that there is a triable issue of material fact as to whether notices of intent to sue were sent on March 8, 2007. The existence of a triable issue of material fact precluded the resolution of the litigation at summary judgment. (§ 437c, subd. (c).)
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for further proceedings not inconsistent with this opinion. Kabardyan is entitled to recover her costs on appeal.
We concur:
WOODS, J., Acting P. J.
JACKSON, J.