Filed 7/1/16




                            CERTIFIED FOR PUBLICATION
               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              FIFTH APPELLATE DISTRICT




ERNEST J. BROOKS,
                                                                        F071884
        Plaintiff and Appellant,
                                                            (Super. Ct. No. CV-283100)
                 v.

MERCY HOSPITAL,                                                        OPINION
        Defendant and Respondent.




        APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
        Ernest J. Brooks, in pro. per., for Plaintiff and Appellant.
        Frazier, Watson & Croutch, Craig R. Donahue and Daniel K. Dik for Defendant
and Respondent.
                                           -ooOoo-
       Plaintiff Ernest J. Brooks appeals from a judgment of dismissal entered in favor of
defendant Mercy Hospital after the trial court sustained defendant’s demurrer to
plaintiff’s complaint on statute of limitations grounds. Plaintiff argues the trial court
erred because it failed to apply the tolling provision set forth at Code of Civil Procedure
section 352.1,1 which grants a two-year tolling of the statute of limitations to persons
who are imprisoned “for a term less than for life.” (§ 352.1, subd. (a).) Plaintiff contends
that under a longstanding judicial construction of this provision (i.e., Grasso v.
McDonough Power Equipment, Inc. (1968) 264 Cal.App.2d 597 (Grasso) [construing
predecessor tolling statute, § 352]), the phrase “for a term less than for life” includes a
life sentence where there is a possibility of parole. In other words, the tolling provision
has been interpreted to apply to all prisoners except those subject to a life sentence
without the possibility of parole. Plaintiff is correct that Grasso is dispositive here. As
more fully explained below, we conclude that section 352.1 tolling should have been
applied to plaintiff, which means the trial court erred in concluding that the statute of
limitations expired. Accordingly, we reverse the judgment appealed from, with
instructions that the trial court enter a new order overruling defendant’s demurrer to
plaintiff’s complaint.
                         FACTS AND PROCEDURAL HISTORY
       The parties do not dispute that plaintiff was and is a prison inmate at Corcoran
State Prison, serving an indeterminate life sentence that includes a possibility of parole.
In April 2013, while serving said life sentence, plaintiff was taken for medical care and
treatment to Mercy Hospital in Bakersfield. The parties do not dispute that plaintiff’s
action arises out of that medical care and treatment. The gist of plaintiff’s complaint, as
summarized in the parties’ briefing, is that defendant negligently overmedicated him and


1     Unless otherwise indicated, further statutory references are to the Code of Civil
Procedure.


                                               2.
allowed an “IV Port” to become infected, among other things. On September 5, 2013,
plaintiff served on defendant a notice of intent to sue.
       Plaintiff’s complaint was filed on September 24, 2014. Defendant filed a
demurrer on the ground that the action was time-barred by the statute of limitations
applicable to causes of action for alleged professional negligence by a health care
provider—i.e., section 340.5.
       The hearing on the demurrer was held on April 16, 2015, after which the trial
court took the matter under submission. On May 7, 2015, the trial court issued the
following written ruling: “Defendant Dignity Health, dba Mercy Hospital of
Bakersfield’s demurrer to the complaint is sustained without leave to amend. The one (1)
year statute of limitations expired pursuant to … section 340.5, and the limitations period
was not tolled under … section 352.1 as plaintiff is serving an indetermina[te] life
sentence .…” (Some capitalization omitted.) Having concluded that tolling under
section 352.1 was inapplicable, the trial court then proceeded to explain why the one-year
provision in section 340.5 had expired: “The date that a cause of action accrues for
statute of limitations purposes is the date the plaintiff discovers or has a factual basis to
suspect that defendant committed some wrong against him. Based on plaintiff’s
pleadings he had such factual basis during the period of his hospitalization in 04/2013.
He certainly appreciated his claim no later than 09/05/2013 when he gave notice of intent
to sue to the hospital. He did not file his action until 09/24/2014, more than one year
from either his hospitalization or notice of intent to sue. [¶] … [¶] The complaint is to be
dismissed as to the demurring defendant.” (Some capitalization omitted.)
       Subsequent to the trial court’s ruling, a judgment of dismissal was entered in favor
of defendant. Plaintiff filed a timely notice of appeal.2

2     The notice of appeal was filed five days prior to entry of the judgment. We treat the
premature notice as being from the judgment. (Eckhart v. Genuine Parts Distributors (1997) 53
Cal.App.4th 1340, 1344.)


                                              3.
                                        DISCUSSION
I.     Standard of Review
       On appeal from a judgment dismissing an action after sustaining a demurrer, we
review de novo whether the complaint states facts sufficient to constitute a cause of
action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Where a
demurrer is sustained without leave to amend, we decide whether there is a reasonable
possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) Any questions of statutory interpretation are reviewed de novo.
(People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
II.    Scope of Tolling Provision as Construed by Grasso
       The applicable statute of limitations for professional negligence by a health care
provider is section 340.5, which states in relevant part as follows: “In an action for injury
or death against a health care provider based upon such person’s alleged professional
negligence, the time for the commencement of action shall be three years after the date of
injury or one year after the plaintiff discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first. In no event shall the time for
commencement of legal action exceed three years unless tolled for any of the following:
(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign
body, which has no therapeutic or diagnostic purpose or effect, in the person of the
injured person.”
       Section 352.1, the special tolling provision relating to prisoners, provides in
relevant part as follows: “If a person entitled to bring an action … is, at the time the
cause of action accrued, imprisoned on a criminal charge, or in execution under the
sentence of a criminal court for a term less than for life, the time of that disability is not a
part of the time limited for the commencement of the action, not to exceed two years.”
(§ 352.1, subd. (a).)



                                               4.
       In Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928, 931–935 (Belton),
the Supreme Court explained the interplay between sections 340.5 and 352.1, holding
that the two-year tolling for prisoners as provided in section 352.1 is applicable to the
one-year limitations period in section 340.5, but not to the three-year limitations period in
that section. Thus, a prisoner’s time to sue a health care provider can be extended by his
or her incarceration up to, but never beyond, the maximum three-year deadline contained
in section 340.5. (Belton, supra, at pp. 931–935.) In Belton, the prisoner had filed his
complaint more than one year after discovery of his cause of action, but within the three-
year maximum period. Therefore, the complaint was not barred by the statute of
limitations because the one-year period was tolled under section 352.1. (Belton, supra, at
pp. 930–931, 934–935.) The trial court’s contrary decision on demurrer was reversed by
the Court of Appeal, and the Supreme Court affirmed the Court of Appeal. (Id. at
pp. 930, 935.)
       Here, the trial court concluded that section 352.1 did not apply because plaintiff
was serving a life sentence. It appears the trial court viewed the wording of section 352.1
literally, without adequately considering the prior judicial construction given to it. On
appeal, plaintiff argues that since his life sentence includes the possibility of parole,
section 352.1 was applicable to him. As we explain, plaintiff is correct.
       In Grasso, the Court of Appeal construed the scope of section 352 (the
predecessor to section 352.1). It concluded that the statutory language providing for
tolling of the limitation period to persons imprisoned “‘for a term less than for life’”
should not be interpreted as excluding all life-termers, but only those without the
possibility of parole. (Grasso, supra, 264 Cal.App.2d at pp. 599–602.) In so holding,
Grasso explained that in 1872, when section 352 was first enacted, a life sentence “was
literally a life sentence.” (Grasso, supra, at p. 599.) There was no possibility of parole
and during the prisoner’s literal lifetime of incarceration, his or her civil rights were
suspended for the duration. (Id. at pp. 599–602; see De Lancie v. Superior Court (1982)

                                              5.
31 Cal.3d 865, 870–871 [as far as civil rights were concerned, life-termers were deemed
“‘civilly dead’”].) Thus, no one serving a life sentence in those days would ever be able
to avail himself or herself of “the fruits of litigation.” (Grasso, supra, at p. 600.)
According to Grasso, this history reflects why the Legislature originally excluded life-
termers from the tolling provision: “In the nineteenth century to have given an
exemption from the statute of limitations to one who had no limitation on his
confinement save that of death, would have been to bestow a sardonic favor.” (Ibid.)
However, by the time Grasso was decided, nearly a century after section 352 was first
enacted, the basic assumptions of what a life term entailed had changed in significant
ways: The possibility of parole was built into most life sentences, and other legislation
(i.e., Pen. Code, former § 2601) was in place to allow restoration of civil rights to such
prisoners.3 Because of these substantial changes in the nature and implications of a
typical life sentence, and in light of Penal Code former section 2601, Grasso construed
Code of Civil Procedure section 352 to mean that only those sentenced to life without
possibility of parole should be excluded from the tolling provision. (Grasso, supra, at
pp. 599–602; accord, 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 702, p. 922.)4
       Moreover, the Legislature appears to have signaled its approval of Grasso’s
judicial construction when, in 1994, it enacted section 352.1 as a separate provision from
section 352, utilizing the same statutory wording. (Stats. 1994, ch. 1083, §§ 4–5

3        At the time Grasso was decided, Penal Code former section 2601 still provided that life-
termers were “‘civilly dead,’” but it permitted the “‘Adult Authority’” to restore such civil rights
to persons sentenced to life imprisonment as it deemed proper. (Grasso, supra, 264 Cal.App.2d
at p. 600.) Now, of course, the balance has shifted even further in favor of recognizing
prisoners’ rights. Hence, a prisoner may be deprived of only such rights as is reasonably related
to legitimate penological interests (Pen. Code, § 2600) and the prisoner otherwise retains civil
rights, including the right to initiate civil actions (Pen. Code, § 2601, subd. (d)).
4       On this point, Grasso stated: “The reason for excluding life termers from the lifting of
the statute of limitations, valid as it was in 1872, has been largely lost in the developments of the
century which has passed, except possibly as the reason may still exist for that limited class of
persons who cannot be paroled or released.” (Grasso, supra, 264 Cal.App.2d at p. 601.)


                                                 6.
[enacting § 352.1 from former § 352, but limiting tolling to two years, and deleting
prisoner tolling provision from revised § 352].) Of course, the Legislature is presumed to
be aware of judicial decisions already in existence, and to have enacted or amended a
statute in light thereof. (People v. Giordano (2007) 42 Cal.4th 644, 659.) Where the
language of a statute uses terms that have been judicially construed, courts generally
presume that the Legislature intended the terms to have the same precise meaning as was
placed on them by the courts. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1046; Richardson
v. Superior Court (2008) 43 Cal.4th 1040, 1050.) “When legislation has been judicially
construed and a subsequent statute on a similar subject uses identical or substantially
similar language, the usual presumption is that the Legislature intended the same
construction, unless a contrary intent clearly appears.” (People v. Lopez (2003) 31
Cal.4th 1051, 1060.) Applying this presumption to the present case, we conclude that
when the Legislature enacted section 352.1 and continued to use the same language from
former section 352, stating that tolling would be granted to persons imprisoned “for a
term less than for life,” the Legislature did so with knowledge and in light of Grasso’s
prior judicial construction thereof, and with an intention to continue that construction of
the statutory language. Accordingly, Grasso remains good law.
       From what has been discussed above, it is evident that the trial court erred in
sustaining the demurrer on statute of limitations grounds, which error stemmed from the
trial court’s failure to apply the tolling provision in section 352.1 to plaintiff.




                                               7.
                                     DISPOSITION
       The judgment is reversed. The trial court is instructed to enter a new order
overruling defendant’s demurrer to the complaint. Costs on appeal are awarded to
plaintiff.


                                                           _________________________
                                                                     KANE, Acting P.J.

WE CONCUR:


_______________________________
DETJEN, J.


_______________________________
PEÑA, J.




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