Opinion
Review Granted April 6, 1988.
Previously published at 197 Cal.App.3d 922, 210 Cal.App.3d 1060
Tanzer, Rosato & Samuels, Ellen Kamon, Beverly Hills, Haines, Russ, McMurry & Craig J. de Recat, Los Angeles, and Cary S. Samuels, Beverly Hills, for plaintiffs and appellants.
Thompson & Colegate, Riverside, Merrill & Neiswender, Redlands, Horvitz, Levy & Amerian, David M. Axelrad, David S. Ettinger, Grant Marylander and Michelle L. Stern, Encino, for defendant and respondent Desert Hosp. Dist.
OPINION ON REHEARING AFTER TRANSFER FROM SUPREME COURT
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. Phillips and her husband (plaintiffs) claim: "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. 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 did not petition for late claim relief under section 911.4 from the 100-day claim filing requirement even though it is clear plaintiffs were unaware of the public entity status of defendant Hospital until the demurrer to the complaint was filed by Hospital.
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 on the ground the complaint did not state facts sufficient to constitute a cause of action. 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.
Code of Civil Procedure section 430.10, subdivision (f).
In an opinion filed May 15, 1987, we affirmed the trial court's judgment of dismissal and held that plaintiffs' "Intention to Commence Action" letter of April 6, 1984, did not constitute a claim under section 905 and that defendant Hospital was not required to respond to the letter to comply with sections 910.8 and 911.3 in order to avoid waiver of its defense. The I
Section 910.8 provides:
STANDARD OF REVIEW
Blank v. Kirwan (1985) 39 Cal.3d 311, 216 Cal.Rptr. 718, 703 P.2d 58, sets forth the appropriate standards for reviewing the sufficiency of a complaint against a demurrer. " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citations.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" ( Id., at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)
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].... [p] Therefore, [plaintiffs'] causes of action against [defendant] Hospital 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.2d 814, 819, 142 P.2d 37.) 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 have 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.
In 1975, the Legislature enacted the Medical Injury Compensation Reform Act (MICRA). As part of MICRA, Code of Civil Procedure section 364 was added as an additional procedural pitfall in the path of plaintiffs in medical malpractice actions. This section requires a patient to give a health care provider at least 90 days' notice prior to commencement of an action based upon professional negligence. The notice shall notify defendant of the claim and the type of loss sustained, including with specificity the nature of the injury suffered.
The Legislature did not amend section 905 or 910 to eliminate the requirement of filing a claim against a public entity when the claim is based on professional medical negligence. It is, therefore, incumbent upon a plaintiff to give notice of intention to sue and to file a claim under the Tort Claims Act prior to filing a complaint against a public entity for such negligence.
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.] [p] 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.) Compliance with filing requirements may not be excused simply because defendant Hospital had A review of plaintiffs' letter of April 6, 1984, demonstrates it is not a claim, but rather an "Intention to Commence Action" notice under Code of Civil Procedure section 364. At the time the letter was sent, plaintiffs did not know defendant Hospital was a district hospital and the letter did not state the address of plaintiffs, the address where notices were to be sent, a general description of the injury or the amount of money damages claimed, all of which are required to be included in a claim against a public entity under section 910.
Section 910 provides:
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.
To hold plaintiffs' letter constituted a claim would require a district hospital or other public health care provider to treat letters written by dissatisfied patients or their attorneys which threaten legal action as a claim, or risk the loss of a defense in failing to give the patient notice of insufficiency of claim required by section 910.8 or 911.3. Here, as no claim had been filed, defendant Hospital was not required to comply with section 910.8 or 911.3. Failure of defendant Hospital to respond to plaintiffs' letter does not waive its defense of untimely filing. ( Lutz v. Tri-City Hospital, supra, 179 Cal.App.3d at p. 813, 224 Cal.Rptr. 787.)
Foster v. McFadden, supra, 30 Cal.App.3d 943, 106 Cal.Rptr. 685, is distinguishable from this case. It was not an action based upon the professional negligence of a health care provider. It was an action against a sanitation district in which, prior to filing, plaintiff's attorney sent a letter to the district employee involved in the accident, with a copy to the district. The letter advised the employee of plaintiff's name, the date and place of accident, and requested the employee forward the letter to his insurance carrier, or contact the attorney immediately. The sanitation district did not give plaintiff or his attorney any notice of insufficiency of claim, but sanitation district did reply and advised plaintiff's attorney to contact its insurance carrier. Sanitation district also forwarded the letter to its carrier.
The Foster court held that although the letter did not constitute substantial compliance with section 910, it performed the function of a claim for the purpose of invoking the provisions of 910.8, a waiver of sanitation district's deficiency defense asserted against the claim. In Foster, a significant factor in finding the letter sufficient to trigger the section 910.8 notice requirement was the fact the public entity had responded to the letter and the response treated the letter as a claim. Here, plaintiffs' notice of intent to commence action was clearly never treated as a "claim" by defendant Hospital nor did it perform the function of a claim. The letter was treated by defendant hospital for what it was--the notice required by MICRA and Code of Civil Procedure section 364.
III
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 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.
Section 7530 provides:
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]." ( Id., 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 Claims Act requirements bars the action against defendant Hospital.
Judgment affirmed.
CAMPBELL, P.J., and McDANIEL, J., concur.
"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."
Section 911.3 provides:
"(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."
"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."
"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."