Opinion
D072489
09-19-2018
STEVEN L. PERKINS, Plaintiff and Appellant, v. U.S. HEALTHWORKS, INC. et al., Defendants and Respondents.
Law Office of Michael A. Conger and Michael A. Conger for Plaintiff and Appellant. Doyle Schafer McMahon, Bruce J. Quilligan; Cole Pedroza, Kenneth R. Pedroza, and James L. Canto II 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00013164-CU-NP-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed. Law Office of Michael A. Conger and Michael A. Conger for Plaintiff and Appellant. Doyle Schafer McMahon, Bruce J. Quilligan; Cole Pedroza, Kenneth R. Pedroza, and James L. Canto II for Defendants and Respondents.
Perkins was terminated from his job as an automotive mechanic for the City of San Diego (City) after failing an employer-mandated drug test administered by defendants U.S. HealthWorks and Jerry Jackson. He appeals from judgment entered in favor of defendants after the court found that his negligence claim failed as a matter of law because no relationship between the parties supported the imposition of a legal duty and further found his action was time-barred by the two-year statute of limitations applicable to negligence claims, Code of Civil Procedure section 335.1. On appeal, Perkins contends the trial court erred when it concluded that defendants do not owe him a legal duty not to provide false information to his employer. Perkins further contends the trial court erred when it determined the case is time-barred, because either the delayed discovery rule or the doctrine of equitable tolling precludes summary judgment. We find that the statute of limitations issue is dispositive; as such, we do not reach the issue of duty. We agree with the trial court's determination that Perkins's action is time-barred, and we affirm the judgment.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
BACKGROUND
Perkins was employed by the City of San Diego as an automotive mechanic. He has a medical condition that results in the need to defecate more frequently; the need to defecate can occur suddenly. His condition was accommodated at his workplace where he had access to a nearby restroom.
As a condition of employment, the City required Perkins to take random drug tests via urine sample. The urine samples were collected in San Diego by U.S. HealthWorks and analyzed by a physician in Louisiana (not a party to this action). Results were provided to the City.
In 2012, Perkins sustained a work-related physical injury that required him to take several months off to rehabilitate. He was prescribed opiates for pain management but elected to take marijuana instead because he determined that marijuana had fewer risks.
After returning to work following his injury, Perkins failed a random drug test by testing positive for marijuana, which Perkins says can remain detectable for 30 to 45 days after use. As a result, he was required to agree to more frequent drug tests or be terminated. He executed a "Conditions of Continuing Employment Agreement" acknowledging his consent to these additional tests. That agreement stated:
"Samples will be collected by a competent medical provider of the City's choice using established collection and chain of custody procedures. The analysis is to be conducted by a licensed medical laboratory of the City's choice in accordance with the proper testing procedures as directed by the City DOT Program Administrator, Personnel Director or designee. You will be required to authorize in writing the disclosure of the results of such testing."The agreement further provided that Perkins would be terminated for "fail[ure] to provide a required urine test sample . . . ." Perkins subsequently passed three random drug tests in November and December 2013 and in January 2014. Results from these drug tests were communicated to the City.
A complete copy of the Conditions of Continuing Employment Agreement does not appear in the record. Only the first and third pages were included in the documents lodged by defendants in support of their summary judgment motion. Excerpts of the agreement are reprinted in the City's April 7, 2014 termination letter to Perkins, discussed post.
On April 1, 2014, Perkins was called for another random drug test. He reported to the U.S. HealthWorks facility accompanied by his supervisor, G.E., and a coworker. The coworker was called back first. U.S. HealthWorks employee Jerry Jackson next called Perkins to provide a urine sample. Before Perkins could provide a urine sample, Jackson purportedly told Perkins that he (Jackson) was not sure which form to use for Perkins's urine sample; Jackson left Perkins to wait "not far from the reception desk," telling Perkins he would be back in a few minutes.
Perkins states that G.E. "did not like [him]."
Perkins was then struck by a sudden bout of his intestinal condition and felt he must immediately use a toilet to defecate. There was a toilet nearby for urine sample collection, but there was a sign above that toilet stating, "Patients here for a drug screen please don't flush the toilet. You will repeat the test." He knew from previous visits Jackson would be in the toilet area with him to observe the actual urination into a vial, and he was too embarrassed to defecate in a toilet he could not flush because he knew that Jackson would soon be in that toilet area to observe him providing a sample. Perkins believed the nearest toilet he could flush was in the building near the elevators. During Jackson's absence, Perkins proceeded to that restroom. He did not see any U.S. HealthWorks employees to notify. He told G.E., who was in the waiting room, he would be right back, but G.E. did not respond. Perkins was gone for two to three minutes, returned immediately after emptying his bowels, and never left the building.
U.S. HealthWorks occupies a portion of the first floor of a traditional, two-story office building that it shares with several other tenants. Public restrooms are located near the elevators.
Upon returning, Perkins was prepared to provide a urine sample, but Jackson told him, "I don't know if you are going to be able to test." G.E. then spoke with Jackson for approximately five minutes; Jackson could not hear their discussion. G.E. then told Perkins, "let's go," and they returned to work. Neither Jackson nor G.E. told Perkins he had done anything wrong. Perkins stated no one ever told him he was not permitted to use the restroom by the elevators, or that he could not leave the testing area after being called from the waiting area to provide a sample.
On April 7, 2014, the City terminated Perkins's employment. In his termination letter, Perkins was told:
"On April 1, 2014, you were directed to report to the City's medical provider, U.S. [HealthWorks], to participate in a [r]andom [d]rug [t]est in accordance with the terms of your Conditions of Continued Employment Agreement and the City's Drug and Alcohol Testing Policy for Commercial Drivers. On April 1, 2014, I was notified by [R.P.], DOT Coordinator, Risk Management Department, that after reporting to the [U.S. HealthWorks] facility you left the building without permission and did not complete providing a test sample. This action is considered a test failure per the City's Commercial Driver Program, Drug and Alcohol Testing Policy and the U.S. Department of Transportation (DOT) procedures . . . .
"Therefore, based on this violation of your Conditions of Continuing Employment Agreement, termination is appropriate for the following reasons:
"1. You violated [civil service rule requirements] in that you failed to complete an employer required drug and alcohol test.
"2. You failed to comply with your Conditions of Continuing Employment Agreement by failing to successfully complete a required drug and alcohol test ordered on April 1, 2014.
"3. You violated [city policies] and U.S. Department of Transportation (DOT) procedures (DOT Rule 49 CFR Part 40 Section 40.191(a)[):] as an employee, you have refused to take a
drug test if [you] (2) fail to remain at the testing site until the testing process is complete."
See 49 Code of Federal Regulations, part 40.191(a) (2010) ["As an employee, you have refused to take a drug test if you: . . . (2) Fail to remain at the testing site until the testing process is complete[.]"]. Under 49 Code of Federal Regulations part 40.191(d) (2010), when an employee refuses to participate in the testing process, the collector must "document the refusal on the [Federal Drug Testing Custody and Control Form (CCF)]" and "immediately notify the [Designated Employer Representative] by any means (e.g., telephone or secure fax machine) that ensures that the refusal notification is immediately received."
In a letter dated that same day, Perkins wrote to his employer requesting reconsideration of his termination. He provided the following explanation:
"On Tuesday, April 1, 2014 I arrived at [work] at 5:45 a.m. and parked my car adjacent to the tire shop. After opening the shop . . . . I was contacted by my supervisor [G.E.] on my personal cell phone. He directed me to close the shop back down because I had been called out for a random drug test and we needed to go to [U.S. HealthWorks]. I returned to my supervisor's office where we were joined by [a coworker] who had also been called that morning for a random drug test. The three of us . . . proceeded to [U.S. HealthWorks] in Kearny Mesa. I signed into the registry at 6:35 [a.m.] and took a seat in the lobby. [My coworker] was called up first, and I set about drinking coffee and water to expedite the process.
"Quite some time later I was called, whereupon I proceeded to the test proctor[']s area. There was some initial confusion on the part of the proctor about whether my test was a random or a follow up. The proctor indicated that he was going to get clarification on the documents at which time I suggested that I was going to go drink some more water and he agreed to that.
"By way of explanation, a number of years ago I had a twelve-inch segment of my colon surgically removed due to infection, and this has resulted in rather abrupt and urgent bowel sensitivity. This visit became just such an episode, due in no small part to the tremendous quantity of water and coffee that I had consumed. Had I attempted to give a urine sample at that moment, I would not have been able to control my bowels. In the absence of any facility staff to direct me I headed toward the door of the facility knowing that there was a
restroom in the lobby of the building (of which I have made use in the past without incident or admonishment to do otherwise). My supervisor [G.E.] was seated in a chair immediately adjacent to the door of the facility. As I walked directly in front of him, he looked up, we made eye contact and I said 'I'll be right back', to which he made no discernible response.
"I visited the lobby restroom and returned to the waiting area of the facility in short order. Upon arriving back, [G.E.] indicated that the proctor told him that I wasn't supposed to leave the immediate waiting area. I returned to the testing area in the back of the facility and waited. After a few moments the proctor came back . . . and told me that he didn't know whether or not I would be able to test since I had left the waiting area.
"The proctor approached my supervisor and they adjourned somewhere in the back of the facility out of sight."
Perkins was not reinstated, and in December 2014, he filed suit against the City for disability discrimination. In his complaint, he alleged that G.E. refused to allow him to take the drug test after he returned from using the restroom and was subsequently terminated "for 'refusing to provide a urine sample,' a false statement."
Perkins settled his case against the City prior to initiating the current action.
In March 2015, in response to document requests served in his lawsuit against the City, Perkins received a copy of drug testing forms that Jackson had prepared in connection with Perkins's attempted drug test on April 1, 2014, using Federal Drug Testing and Control Form, OMB No. 0930-0158. The forms were dated April 1, 2014, signed by Jackson, and were sent to the City. The forms stated: "Donor refused observed collection" and "@7:16 a.m. [patient] walked out of the facility without providing a sample."
On January 19, 2016, Perkins's counsel sent pre-litigation demand letters to U.S. HealthWorks and Jackson "to provide [them] with notice of [Perkins's] claim against [them]." The letters explained the basis of Perkins's claims and threatened litigation if defendants refused to pay a certain amount of money damages. Counsel explained he sent these letters to comply with the 90-day notice requirement of section 364, subdivision (a), anticipating the defendants might later argue they were health care providers and Perkins's suit was a professional negligence action. Jackson and U.S. HealthWorks received these letters and responded to them in February 2016, declining to pay.
Section 364, subdivision (a), provides that "[n]o action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action." "Failure to comply with the 90-day notice provision does not invalidate court proceedings and is not jurisdictional, although it may subject a plaintiff's attorney to State Bar disciplinary proceedings. (§ 365.)" (Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 214.)
Perkins filed suit against U.S. HealthWorks and Jackson on April 21, 2016, and he filed an amended complaint on May 20, 2016. In the amended complaint, he asserted a single cause of action for ordinary negligence, claiming the defendants "owed Perkins a duty to administer the drug test competently, i.e., exercise reasonable care, especially because they knew that a failed drug test would foreseeably cause Perkins to lose his job with the City" and that defendants breached this duty by "falsely reporting to the City that Perkins 'refused observed collection' and 'walked out of the facility without providing a sample.' "
Defendants moved for summary judgment, taking the position that Perkins's action was one for professional negligence and contending (1) they owed no duty to Perkins because there was no physician-patient relationship and (2) the action was time-barred under section 340.5, the one-year statute of limitations applicable to professional negligence claims against health care providers.
In response, Perkins argued the defendants owed him a duty to not provide false information to his employer and refuted the argument this was a professional negligence case. He argued that his complaint did not assert a claim for personal injury or for wrongful death and further argued that the defendants had not established they are health care providers subject to section 340.5:
"The defendants incorrectly assert that 'the gravamen of [Perkins's] complaint is that a health care provider was negligent in their collection of plaintiff's urine for drug testing.' [Citation.] Not so. The gravamen of Perkins'[s] complaint is that Jackson falsely told the City that Perkins 'refused observed collection' and 'walked out of facility without providing a sample.' [Citation.] Perkins was not at U.S. Health[W]orks to receive health care. He was there to pee in a cup. And all Jackson was there to do was watch Perkins urinate into a vial, then seal the vial and send it to a doctor in Louisiana. Jackson was not there to provide Perkins health care."As such, Perkins argued, the one-year statute of limitations for professional negligence claims against health care providers did not apply.
Perkins further argued that the delayed discovery rule tolled the statute of limitations until he learned of the defendants' statements when the drug testing forms were produced during litigation with the City, in March 2015. In a sworn declaration in opposition to defendants' summary judgment motion, Perkins stated he had never seen the drug testing forms Jackson had prepared that day prior to them being produced in discovery. He further stated he had no knowledge of the arrangement between the City and U.S. HealthWorks for the collection of urine specimens for drug testing. Perkins's attorney declared, "Prior to receiving these documents [in discovery], neither my client nor I had any reason to suspect that Mr. Jackson had told the City that Perkins 'refused observed collection' and '@7:16 a.m. [patient] walked out of facility without providing a sample.' " Perkins further argued that the demand letters he sent in January 2016 tolled the statute of limitations for 90 days under section 364.
In reply, defendants continued to aver that U.S. HealthWorks was a state-licensed health care provider. They contended there was no relationship between Perkins and U.S. HealthWorks that would support a legal duty of care, and that the "[o]nly duty owed by defendants was to the City of San Diego." Defendants reiterated the action was time-barred: the delayed discovery rule did not apply because Perkins had reason to know that defendants had reported his failure to take the drug test to the City when he was terminated in April 2014. Even if this case was not a professional malpractice action subject to section 340.5's one-year statute of limitations, defendants stated, it was still barred under the two-year limitation period generally applicable to negligence claims (§ 335.1).
Defendants did not provide any evidence to substantiate this claim.
The court permitted Perkins to file a sur-reply to respond to defendants' new claim that the two-year negligence statute of limitations barred his action. In his sur-reply, Perkins agreed that the two-year statute of limitations applied and reiterated his delayed discovery argument. He provided a supplemental declaration in which he stated, "When I was terminated, I reasonably believed that [G.E.] was 100 percent responsible for my termination and had told the City (falsely) that I had left the test site before providing a urine sample. Until March 26, 2015, I did not think Jackson or his employer, U.S. Health[W]orks, had anything to do with my termination." He also asserted a new argument: even if the delayed discovery rule did not apply, "the doctrine of equitable tolling would preclude summary judgment" based on the 90-day notices that he sent to defendants under section 364.
After a hearing, the court granted defendants' summary judgment motion, finding that ordinary negligence cases require the existence of a duty owed by the defendants, and there was no relationship between defendants and Perkins to support the existence of a duty. The court reasoned that, instead of owing a duty to Perkins, "any duty defendants may have owed would have been to the City of San Diego." The court further found that the delayed discovery rule did not apply to extend the statute of limitations for Perkins's action, and the action was time-barred under the two-year limitations period applicable to ordinary negligence cases.
The court did not rule on Perkins's claim that the statute of limitations was equitably tolled as a result of the section 364 notices.
The court entered judgment in defendants' favor, and Perkins filed this appeal, challenging the court's determinations that defendants owe Perkins no legal duty and the action is time-barred under section 331.5.
DISCUSSION
A. Standard of Review on Summary Judgment
A trial court properly grants summary judgment when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) "[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. . . . There is a triable issue of material fact if, and only if, 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "In ruling on the motion, the court must view the evidence in the light most favorable to the opposing party." (Shin v. Ahn (2007) 42 Cal.4th 482, 499.) On appeal, "[w]e review the record and the determination of the trial court de novo." (Ibid.)
B. Perkins's Negligence Claim Is Time-barred
The parties agree that the statute of limitations set forth in section 335.1 applies to Perkins's negligence action. Section 335.1 provides, "[a]n action for . . . injury to . . . an individual caused by the wrongful act or neglect of another" must be brought within two years.
The elements for Perkins's negligence claim are duty, breach of duty, proximate causation, and damages. (Paz v. State of California (2000) 22 Cal.4th 550, 559.) Perkins alleges that defendants breached a duty they owed Perkins when Perkins arrived at defendants' facility and attempted to take a drug test on April 1, 2014. This breach of duty allegedly caused Perkins damages (the loss of his job) on April 7, 2014. Accordingly, Perkins's action against defendants accrued no later than that date when he suffered damages—April 7, 2014—and he should have filed his lawsuit no more than two years later. (§ 335.1.)
Perkins's action was not filed until April 21, 2016, two years and two weeks after it accrued, and two weeks after the applicable limitations period expired. Absent a basis for tolling the statute of limitations, Perkins's action is time-barred.
We conclude the undisputed facts on summary judgment establish Perkins's action is time-barred and there is no basis for extending the limitations period.
1. Delayed Discovery Rule
Perkins argues the delayed discovery rule applies to extend his time to file this action. He contends that, because he did not actually know that defendants communicated purportedly false information to his employer until he obtained copies of the drug testing forms in March 2015, his cause of action did not accrue until then, giving him two years from that date to file an action and rendering his complaint timely filed. He claims that his lack of knowledge regarding the contents of the drug testing forms was reasonable because, "[w]hen [he] was terminated, [he] reasonably believed that [G.E.] was 100 percent responsible for [his] termination and had told the City (falsely) that [he] had left the test site before providing a urine sample. Until March 26, 2015, [Perkins] did not think Jackson or his employer, U.S. [HealthWorks], had anything to do with [his] termination."
The delayed discovery rule "postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) "A plaintiff has reason to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements.' " (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).) The Supreme Court has explained: "In so using the term 'elements,' we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them." (Ibid.)
Although the plaintiff must at least suspect that someone has done something wrong to him for the statute of limitations to begin to run, the plaintiff need not know the identity of each responsible party. "[T]he general rule in California has been that ignorance of the identity of the defendant is not essential to a claim and therefore will not toll the statute." (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932.) And a plaintiff must be diligent in investigating his claims. "A plaintiff is held to [his] actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to [him]." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 (Jolly).)
To trigger application of the discovery doctrine, a plaintiff must establish facts showing " '(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' [Citation.]" (Fox, supra, 35 Cal.4th at p. 808.) "Because the question of belated discovery depends on the facts and circumstances surrounding the negligent act and the subsequent events leading to discovery, the issue is ordinarily one of fact for a court or jury to decide." (Dujardin v. Ventura County Gen. Hospital (1977) 69 Cal.App.3d 350, 356.) However, when the facts are susceptible to only one legitimate inference, a reviewing court may determine the issue as a matter of law. (M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal.App.4th 1509, 1531; Jolly, supra, 44 Cal.3d at p. 1112.)
Applying these principles here, we conclude Perkins's negligence claim is time-barred. Perkins's complaint is based on allegations that Jackson and U.S. HealthWorks were negligent in falsely reporting to his employer that Perkins " 'refused observed collection' and 'walked out of the facility without providing a sample.' " These alleged false statements are documented in two drug testing forms which Perkins received in March 2015, in discovery during his lawsuit against the City. Although Perkins alleged in his complaint that he "did not discover[] Jackson's false statements until March 25, 2015, when the City provided Perkins'[s] counsel with documents containing Jackson's false statements," Perkins never alleged his " 'inability to have made earlier discovery despite reasonable diligence.' " (Fox, supra, 35 Cal.4th at p. 808.) The delayed discovery doctrine fails here because it was never even properly pled.
Even if the delayed discovery doctrine had been properly pled, Perkins's claim would fail because the facts were sufficient as a matter of law to place Perkins on notice of defendants' potential involvement—requiring him to conduct further investigation. "[P]laintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation." (Fox, supra, 35 Cal.4th at p. 808, italics added.)
On April 7, 2014, the City informed Perkins he was terminated because he left the U.S. HealthWorks facility "without permission" and he "did not complete providing a test sample." Jackson's identity was known to Perkins, as was the role Jackson played the day of this failed test attempt. In his letter to the City after his termination, Perkins recounted that, on the day of the failed test attempt, it was Jackson who told G.E. that Perkins was not supposed to leave the immediate waiting area. Jackson told Perkins he did not think Perkins would be able to test that day. Jackson and G.E. discussed the situation for several minutes out of Perkins's earshot before G.E. told Perkins they were leaving.
Although Perkins contends he concluded from these facts that G.E. "was 100 percent responsible" for falsely informing the City that he refused to test, that conclusion is insufficient as a matter of law to delay accrual of his negligence claim against defendants. (Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1299-1300 ["When a plaintiff has cause to sue based on knowledge or suspicion of negligence the statute starts to run as to all potential defendants."].) While Perkins assumed he was terminated because of G.E.'s false statement regarding his refusal to test—as he alleged in his prior lawsuit against his employer—Perkins cannot reasonably claim he was not, at a minimum, on inquiry notice as to defendants' potential role in the resulting harm caused by his termination. The City's termination letter explicitly stated that Perkins was terminated because "after reporting to the [U.S. HealthWorks] facility [Perkins] left the building without permission and did not complete providing a test sample. This action is considered a test failure . . . ." The termination letter further stated Perkins "failed to complete an employer required drug and alcohol test," "failed to comply with [his] Conditions of Continuing Employment Agreement by failing to successfully complete a required drug and alcohol test ordered on April 1, 2014," and "refused to take a drug test" by "fail[ing] to remain at the testing site until the testing process is complete."
Nothing in these statements reasonably supports the inference that Perkins's termination was solely attributable to G.E.'s actions or statements. To the contrary, the termination letter clearly informed Perkins he was terminated in response to what was interpreted to be a failed drug test at the testing facility. Perkins knew Jackson was responsible for administering that drug test and knew defendants reported drug test results to the City. It was objectively unreasonable under these facts for Perkins to assume that G.E. was the sole reason Perkins's employment was terminated. Even though Perkins failed to conduct an investigation into defendants' role, he is nonetheless "charged with knowledge of the information that would have been revealed by such an investigation." (Fox, supra, 35 Cal.4th at p. 808; Norgart, supra, 21 Cal.4th at p. 398 [plaintiff cannot " 'sit on' his 'rights' " and wait for the facts to find him].)
After his initial failed drug test in 2013, Perkins agreed to additional testing as a condition to keeping his job and agreed to the City's terms and conditions for drug testing, including sharing the drug test results with the City. As such, he knew or reasonably should have expected the defendants to communicate some information to the City following the failed test attempt, and to document the failed test attempt in the required Federal Drug Testing and Control Form. (See fn. 5, ante.)
In sum, the undisputed facts were sufficient as a matter of law to place Perkins on notice of Jackson's and U.S. HealthWorks's potential involvement, to require him to conduct further investigation, and to commence the running of the statute of limitations.
2. Equitable Tolling
Perkins contends that the statute of limitations was equitably tolled for 90 days because he provided defendants with 90 days' prior notice of his intent to commence this action under section 364. We conclude section 364 does not apply here, and Perkins accordingly is not able to invoke the doctrine of equitable tolling.
Equitable tolling of the statute of limitations has been recognized in California only where (1) the plaintiff is pursuing an alternative remedy in another forum; (2) under narrow circumstances, while plaintiff is pursuing the same remedy in the same forum; (3) where a defendant fraudulently conceals the cause of action; and (4) in certain actions against an insurer. (Turner & Banke, Cal. Practice Guide: Civil Procedure Before Trial, Statutes of Limitations (The Rutter Group 2018) ¶ 6:5, p. 6-1.)
In this case, Perkins relies on the operation of section 364 to toll the limitations period. Under section 364, subdivision (a), "[n]o action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action." (Italics added.) The applicable statute of limitations is extended for 90 days following service of such notice. (§ 364, subd. (d).) "Professional negligence" is defined as a "negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death." (§ 364, subd. (f)(2), italics added.)
No evidence was submitted on whether defendants qualify as health care providers within the meaning of this statute. Even assuming they do, the undisputed facts establish section 364 does not apply here because Perkins did not file a professional negligence claim against defendants. As this court noted in Scharer v. San Luis Rey Equine Hospital, Inc. (2012) 204 Cal.App.4th 421, 431 (Scharer), "[t]he definition of 'professional negligence' in section 364 is clear and is limited to claims for 'personal injury or wrongful death.' " Because Perkins's claim for economic damages against defendants does not meet this statutory definition, he cannot rely on the tolling provision of section 364. (Scharer, at p. 429 [plaintiff could not rely on § 364 tolling provision where "there [was] no allegation that [plaintiff] suffered personal injury or wrongful death" and plaintiff was "only seeking economic damages"].)
Perkins's complaint alleges he "suffered damages . . . in an amount to be proven at trial" as a result of defendants' alleged negligent conduct, and his prayer for relief requests general damages and special damages.
Equitable tolling also cannot be invoked here because Perkins has failed to point to any alternative legal remedy that he was pursuing. "In the majority of cases in which courts apply the equitable tolling doctrine, the plaintiff possesses several legal remedies, and reasonably and in good faith pursues one designed to lessen the extent of his or her injuries or damage. In these cases, if the defendant is not prejudiced, the running of the limitations period is tolled as to the other available remedies. [Citations.]" (Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261, 1270, italics added.) Perkins points to the pre-litigation notice under section 364, but that was not an alternative legal remedy; it was an erroneous attempt to utilize "a prerequisite to seeking remedies that are not applicable to this case." (Scharer, supra, 204 Cal.App.4th at p. 431; see also Schoenberg v. County of Los Angeles Assessment Appeals Bd. (2009) 179 Cal.App.4th 1347, 1356 [statute of limitations on taxpayer refund action was not tolled where plaintiff claimed he pursued writ of mandate in good faith, but it was well settled that mandamus was not an available avenue of review]; Berkeley Unified School Dist. v. State of California (1995) 33 Cal.App.4th 350, 367 [equitable tolling has no application because "Districts never pursued an earlier legal remedy"].)
In sum, based on the undisputed nature of Perkins's claims and the fact that he was not pursuing an alternative legal remedy under section 364, there is no basis for applying the doctrine of equitable tolling.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. IRION, J.