Opinion
Review Granted and Transferred to the Court of Appeals July 30, 1987.
Previously published at 192 Cal.App.3d 542
Tanzer, Rosato & Samuels, Woodland Hills, Ellen Kamon, Haines, Russ, McMurry & de Recat and Cary S. Samuels, for plaintiffs and appellants.
Merrill & Neiswender, Redlands, Horvitz, Levy & Amerian, Encino, David M. Axelrad, David S. Ettinger and Grant Marylander, for defendant and respondent Desert Hosp. Dist.
HEWS, Associate Justice.
Plaintiff Paula E. Phillips was admitted to Desert Hospital District, a state hospital district, for mammary dysplasia. On September 12, 1983, a bilateral mastectomy and reconstructive surgery were performed. Plaintiff claims: "Subsequent to the surgery, which was apparently unsuccessful, [plaintiff Paula Phillips'] condition deteriorated resulting in gangrenous tissue. [Plaintiff Paula Phillips] was nevertheless released from [defendant] Hospital in serious and dangerous condition."
Plaintiff was released on October 2, 1983.
On April 6, 1984, plaintiffs' attorney sent the following letter to Desert Hospital:
"Re: Intention to Commence Action
"Paula E. Phillips and Richard A. Phillips
"Date of Incident: September 12, 1983
"To Whom It May Concern:
"This letter will serve to advise you that this office intends to commence an action against Desert Hospital on behalf of Paula E. and her husband Richard A. Phillips. This action arises out of apparent Health Care Provider Negligence (Medical Malpractice) resulting from the diagnosis, care, treatment, operation and related services rendered to Paula E. Phillips on or about September 12, 1983 at Desert Hospital, Palm Springs, California, and the subsequent complications, treatment, damages, and emotional distress resulting therefrom. Mr. Phillips will claim damages for loss of consortium and for his mental and emotional suffering resulting from the damages and disfigurement to his wife." (Original emphasis.)
Defendant Hospital did not respond to plaintiffs' letter and on July 27, 1984, plaintiffs filed a complaint. At that time, plaintiffs were unaware defendant Hospital was a public entity. Defendant Hospital demurred, asserting plaintiffs had failed to comply with Government Code section 900 et seq. Specifically, defendant Hospital asserted plaintiffs had failed to comply with the 100-day claim presentation requirement of the Tort Claims Act.
Plaintiffs believed defendant Hospital was called "Desert Hospital," rather than "Desert Hospital District."
Unless otherwise indicated, all section references in this opinion are to the Government Code.
On September 26, 1984, plaintiffs filed a first amended complaint, alleging: (1) They had "complied with the provisions of Government Code § 900, et seq." and (2) defendant Hospital "is estopped from asserting a defense pursuant to Government Code § 900, et seq." In regard to the second allegation, plaintiffs state their April 6, 1984, letter gave defendant Hospital notice of plaintiffs' claim, defendant Hospital failed to comply with section 7530, and defendant Hospital attempted to conceal its public agency status.
Defendant Hospital again demurred and the trial court sustained the demurrer without leave to amend. The court held plaintiffs failed to meet the requirements of the Tort Claims Act. Plaintiffs now contend the trial court abused its discretion in sustaining the demurrer without granting leave to amend, and appeal from the January 15, 1985, order of dismissal.
I
STANDARD OF REVIEW
Blank v. Kirwan (1985) 39 Cal.3d 311, 216 Cal.Rptr. 718, 703 P.2d 58, sets forth Furthermore, as observed in Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357: "[W]e bear in mind our well established policy of liberality in reviewing a demurrer sustained without leave to amend: 'The allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.' [Citations.]"
II
COMPLIANCE WITH SECTION 900 ET SEQ.
Section 911.2 requires that all claims against public entities be filed within 100 days after the cause of action accrues. "Compliance with the claims statutes is mandatory [citation]; and failure to file a claim is fatal to the cause of action." (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454, 115 Cal.Rptr. 797, 525 P.2d 701.)
Plaintiffs contend they have alleged sufficient facts to reveal: (1) The cause of action accrued within 100 days of plaintiffs' letter and (2) plaintiffs' letter constitutes a "claim." Plaintiffs, therefore, contend the demurrer should not have been sustained.
Plaintiffs' first amended complaint merely alleges "Plaintiffs' cause of action accrued after September 14, 1983." Plaintiffs do not specifically state when the cause accrued. Plaintiffs' opening brief supplements their complaint:
"In the within case [plaintiffs] were unaware of their potential causes of action until subsequent medical opinion informed them of same. Furthermore, [defendant] Hospital concealed its negligence from [plaintiffs].... Therefore, [plaintiffs'] causes of action against [defendant] Hospital could not have accrued until [plaintiffs'] subsequent medical providers informed them of the existence of such causes. Thereafter, [plaintiffs] notified [defendant] Hospital immediately of their claims. Such filings were well within the 100 days prescribed by 911.2." (Emphasis added.)
As provided in Gonzales v. City of San Diego (1982) 130 Cal.App.3d 882, 890, 182 Cal.Rptr. 73, for a complaint to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity. (See also, Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819, 131 Cal.Rptr. 854.) Such was not done in the present case. Plaintiffs did not allege when they discovered defendant Hospital's negligence or how defendant Hospital concealed its negligence. Even, however, were we to remand the cause and allow plaintiffs to plead defendant Hospital intentionally concealed its negligence and allow plaintiffs to state when they discovered defendant Hospital's negligence (see Donabedian v. Manzer (1986) 187 Cal.App.3d 1021, 1028, 232 Cal.Rptr. 325, where concealment was actually alleged in the complaint), plaintiffs would still need to show they filed a claim.
Plaintiffs contend their letter mailed to "Desert Hospital" on April 6, 1984, satisfies the "claim" requirement of sections 905, 911.2, and 945.4. We disagree. Section 910 sets forth the information to be contained in a claim. As plaintiffs point out, strict compliance with statutory requirements has given way to a test of substantial compliance. (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1082-1083, 195 Cal.Rptr. 576.) "Where there has been an attempt to comply but the compliance is defective, the test of substantial compliance controls. Under this test, the court must ask whether sufficient information is disclosed on the face of the filed claim 'to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit.' [Citation.] The doctrine of substantial compliance, however, cannot cure total omission of an essential element from the claim or remedy a plaintiff's failure to comply meaningfully with the statute. [Citations.]" (Id., at p. 1083, 195 Cal.Rptr. 576.)
Section 910 provides:
Review of plaintiffs' letter demonstrates it is not a claim and the test of substantial compliance is inapplicable. Plaintiffs denominate their letter a notice of "Intention to Commence Action." As provided in Lutz v. Tri-City Hospital (1986) 179 Cal.App.3d 807, 813, 224 Cal.Rptr. 787, posting a notice of intention to commence legal action does not constitute the filing of a claim. Further, plaintiffs' letter in the present case is far less complete than the notice in Lutz, where the court concluded no claim had been filed.
Compliance with filing requirements may not be excused simply because defendant Hospital had knowledge of the facts constituting the basis of the claim. (Loehr v. Ventura County Community College Dist., supra, 147 Cal.App.3d at p. 1084, 195 Cal.Rptr. 576.)
Plaintiffs' letter providing notice of intention to commence legal proceedings as a matter of law cannot be considered a claim. Therefore, as no claim had been filed, defendant Hospital was not required to comply with sections 910.8 or 911.3. Failure III
Section 910.8 provides:
Section 911.3 provides:
ESTOPPEL OF DEFENDANT HOSPITAL'S DEFENSES
Plaintiffs argue defendant Hospital should be estopped to assert their noncompliance with the 100-day claim presentation requirement because defendant Hospital failed to advise plaintiffs that it was a public entity or inform them of the procedural requirements for perfecting a claim. Further, plaintiffs argue section 7530 requires public entities to identify themselves as such and defendant Hospital's "Consent to Surgery" form, "Medical Authorization" form and letterhead stationery fail to do so.
Section 7530 provides:
As provided in Shank v. County of Los Angeles (1983) 139 Cal.App.3d 152, 158, 188 Cal.Rptr. 644: " '[E]stoppel requires some affirmative representation or acts by the public agency or its representative inducing reliance by the claimant.' [Citation; emphasis in orig.]" Plaintiffs claim the above facts comply with the requirements of Shank. We disagree.
In the present case, it was plaintiffs' responsibility to "ascertain the public status of the hospital and the consequent necessity of filing a claim; [defendant Hospital] was not required to tell [plaintiffs] to file a claim [citations]." (Shank v. County of Los Langeles, supra, 139 Cal.App.3d at p. 158, 188 Cal.Rptr. 644.) Furthermore, plaintiffs cannot now argue they missed the 100-day claims period because they relied on defendant Hospital's failure to comply with section 7530 or defendant Hospital's failure to advise them of proper claims procedure. Plaintiffs' complaints and briefs revealed no investigation prior to their mailing defendant Hospital the April 6, 1984, letter of intent, a letter mailed over six months after plaintiff Paula E. Phillips' operation. No reliance has been or can be established. Plaintiffs' estoppel arguments appear a mere afterthought.
The burden of proving that a defect in a complaint can be cured lies solely with the plaintiff. (Blank v. Kirwin, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.) Plaintiffs have not met their burden. Plaintiffs' failure to comply with Tort Judgment affirmed.
CAMPBELL, P.J., and McDANIEL, J., concur.
"A claim shall be presented by the claimant or by a person acting on his behalf and shall show:
"(a) The name and post office address of the claimant;
"(b) The post office address to which the person presenting the claim desires notices to be sent;
"(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
"(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;
"(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known; and
"(f) The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed."
"If in the opinion of the board or the person designated by it a claim as presented fails to comply substantially with the requirements of Sections 910 and 910.2, or with the requirements of a form provided under Section 910.4 if a claim is presented pursuant thereto, the board or such person may, at any time within 30 days after the claim is presented, give written notice of its insufficiency, stating with particularity the defects or omissions therein. Such notice shall be given in the manner prescribed by Section 915.4. The board may not take action on the claim for a period of 15 days after such notice is given."
"(a) When a claim that is required by Section 911.2 to be presented not later than the 100th day after accrual of the cause of action is presented after such time without the application provided in Section 911.4, the board or other person designated by it may, at any time within 45 days after the claim is presented, give written notice to the person presenting the claim that the claim was not filed timely and that it is being returned without further action. The notice shall be in substantially the following form:
" 'The claim you presented to the (insert title of board or officer) on (indicate date) is being returned because it was not presented within 100 days after the event or occurrence as required by law. See Sections 901 and 911.2 of the Government Code. Because the claim was not presented within the time allowed by law, no action was taken on the claim. [p] Your only recourse at this time is to apply without delay to (name of public entity) for leave to present a late claim. See Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government Code. Under some circumstances, leave to present a late claim will be granted. See Section 911.6 of the Government Code. [p] You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.'
"(b) Any defense as to the time limit for presenting a claim described in subdivision (a) is waived by failure to give the notice set forth in subdivision (a) within 45 days after the claim is presented, except that no notice need be given and no waiver shall result when the claim as presented fails to state either an address to which the person presenting the claim desires notices to be sent or an address of the claimant."
"All public agencies, public entities, districts, cities, counties, and cities and counties shall, when being identified by such entity for any purpose, be identified as a public agency, public entity, district, city, county, or city and county, whichever is appropriate.
"The requirements of this section shall be deemed satisfied if the words 'state,' 'public agency,' 'public entity,' 'district,' 'city,' 'county,' or 'city and county,' whichever is appropriate, appears on all letterhead stationery of such public agency, public entity, district, city, county, or city and county, and on all identification cards used to identify a representative of a public agency, public entity, district, city, county, or city and county; provided, that this chapter is not intended to require the reprinting of letterhead stationery or identification cards and any public agency, public entity, district, city, county, or city and county shall have one year from the effective date of this chapter to use up old letterhead stationery and identification cards. The use by a school district of the name '____________ City Schools' shall satisfy the requirements of this section.
"Notwithstanding any other provision of law, a written application for leave to present a claim pursuant to Section 911.4 shall be granted when it can be shown that the claimant acted with reasonable diligence in pursuing the claim and reasonably believed that the responsible entity was not a public agency by reason of its representations."