Filed 1/12/15
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SECOND APPELLATE DISTRICT

                                        DIVISION SIX


COASTAL SURGICAL INSTITUTE,                                 2d Civil No. B254787

                   Plaintiff and Appellant,              (Super. Ct. No. CV120062)

v.                                                        (San Luis Obispo County)

CHARLES BLEVINS,

                Defendant and Respondent.



        Insurance Code section 11583 provides that the applicable statute of limitations is
tolled when advance or partial payment is made to an injured and unrepresented person
without notifying him of the applicable limitations period. In this first impression case
we hold that the tolling provisions of section 11583 apply to the one-year limitations
period for medical malpractice actions.
        Coastal Surgical Institute appeals from the judgment entered after a jury returned a
verdict in favor of respondent. It contends that the trial court erroneously determined that
section 11583 tolled the one-year statute of limitations for medical malpractice actions.
Appellant also contends that the trial court erroneously denied its motion to conduct a
bifurcated jury trial on its statute of limitations affirmative defense, and refused to
instruct the jury on apportioning fault between appellant and Ruhof Corporation, an
alleged nonparty tortfeasor. We affirm.
                             Factual and Procedural Background
       On September 1, 2010, a doctor performed surgery on respondent's knee at
appellant's surgical facility. After the surgery, respondent's knee became infected. The
infection was caused by pseudomonas aeruginosa bacteria. This bacteria was
subsequently found on a sponge manufactured by Ruhof Corporation (Ruhof) that had
been used to clean surgical equipment prior to respondent's surgery. The bacteria that
infected respondent's knee had apparently "survived the sterilization process" performed
by appellant's employees.
       On October 12, 2010, appellant paid respondent $4,118.23 for the medical
expenses he had incurred in treating the knee infection. Respondent did not sign an
agreement releasing appellant from liability. Appellant concedes that, at the time of
payment, respondent was not represented by counsel and it did not give him written
notice of the applicable statute of limitations for a medical malpractice action.
       On January 24, 2012, more than 15 months after respondent's receipt of appellant's
payment, respondent filed the instant action against appellant. A second amended
complaint added Ruhof as a defendant. Ruhof settled for $100,000.
       The trial court, relying on section 11583, ruled that the one-year limitations period
of Code of Civil Procedure section 340.5 was tolled by appellant's payment of
respondent's medical expenses. It denied appellant's motion to conduct a bifurcated jury
trial on the statute of limitations issue.
       In a special verdict, the jury found that appellant was negligent and that its
negligence was a substantial factor in causing harm to respondent. It awarded damages
of $543,034. The trial court reduced the damages to $285,114.
                   Section 11583 Applies to Medical Malpractice Actions
       Section 11583 provides in relevant part: "No advance payment or partial payment
of damages made by any person, or made by his insurer . . . , as an accommodation to an
injured person . . . shall be construed as an admission of liability by the person claimed

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against, or of that person's or the insurer's recognition of such liability . . . . Any person,
including any insurer, who makes such an advance or partial payment, shall at the time of
beginning payment, notify the recipient thereof in writing of the statute of limitations
applicable to the cause of action which such recipient may bring against such person as a
result of such injury . . . . Failure to provide such written notice shall operate to toll any
such applicable statute of limitations or time limitations from the time of such advance or
partial payment until such written notice is actually given. That notification shall not be
required if the recipient is represented by an attorney."
       Section 11583 "is primarily designed to encourage early payment of damages
without fear of admitting liability. [Citation.] The legislative purpose of the written
notice requirement is to prevent an injury victim from being lulled into a false sense of
complacency about the need to sue because an advance or partial payment by the
defendant or his insurer shows their apparent cooperativeness. [Citation.]" (Doe v. Doe
1 (2012) 208 Cal.App.4th 1185, 1191.)
       Appellant contends that section 11583 does not apply to medical malpractice
actions: "Code of Civil Procedure sections 340.5 [hereafter section 340.5] and 364
[hereafter section 364] provide statute of limitations and tolling provisions for medical
malpractice cases. They are specific and unique to medical malpractice cases and no
others. They are the controlling statutes in this matter and define how a
medical malpractice action is tolled."       "There is no question that the [L]egislature
intended that . . . sections 340.5 and 364 are the only statutes which permit tolling of a
statute of limitations in a medical malpractice case."
       Sections 340.5 and 364 are part of the Medical Injury Compensation Reform Act
(MICRA), enacted in 1975. (Belton v. Bowers Ambulance Service (1999) 20 Cal.4th 928,
930.) Section 340.5 provides that the time for commencement of a medical malpractice
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,

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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 364
provides that a medical malpractice action may not be commenced "unless the defendant
has been given 90 days' prior notice of the intention to commence the action." (Id.,
(subd. (a).) "If the notice is served within 90 days of the expiration of the applicable
statute of limitations, the time for commencement of the action shall be extended 90 days
from the service of the notice." (Id., subd. (d).)
       Pursuant to Belton v. Bowers Ambulance Service, supra, 20 Cal.4th 928, the
tolling provisions of section 11583 apply to the one-year limitations period of section
340.5. In Belton our Supreme Court held that a similar provision for prisoners tolled the
same statute of limitations. (Id., at pp. 930, 935.) The court reasoned: "No tolling
provision outside of MICRA can extend the three-year maximum time period that section
340.5 establishes. [Citations.] . . . Here, however, [the plaintiff] filed his complaint after
the one-year statutory period expired but well within the statute's three-year maximum.
(§ 340.5.) Thus, he is not attempting to extend that maximum. Rather, he seeks statutory
tolling of the one-year period." (Id., at p. 931.) The " 'listing of specified tolling rules
in section 340.5 implicitly excludes others, but these limits apply only to tolling rules
which extend the total limitations period beyond three years: "In no event shall the time
for commencement of legal action exceed three years unless tolled for any of the
following . . . ." . . . The plain language of section 340.5 does not purport to limit tolling
which extends the total limitations period less than or up to three years.' " (Id., at pp.
931-932.)
       Like section 340.5, section 364 also does not purport to limit tolling that extends
the one-year limitations period. Accordingly, the tolling provisions of section 11583 can
extend the one-year period of section 340.5 up to a maximum of three years from the date

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of injury. Respondent "filed his complaint after the one-year statutory period expired but
well within the statute's three-year maximum." (Belton v. Bowers Ambulance Service,
supra, 20 Cal.4th at p. 931.)
       Appellant asserts that, if section 11583 applies to medical malpractice actions, it
was required "to advise [respondent] when the statute [of limitations would] expire[]."
Such a requirement, appellant argues, "would open up 'a can of worms.' " But section
11583 requires no more than that the payor notify the payee in writing of the applicable
statute of limitations, not the actual expiration date. Thus, it would have been sufficient
if appellant had informed respondent in writing of the three-year and one-year periods as
provided in section 340.5. At oral argument, appellant asserted that the application of
section 11583 to medical malpractice actions would forever expose doctors to potential
suit. Not so. As indicated by our Supreme Court in Belton v. Bowers Ambulance
Service, supra, 20 Cal.4th at pp. 931-932, the maximum three-year limitations period is
not altered by our holding.
                       Appellant Was Not Entitled to a Jury Trial on
                       Its Statute of Limitations Affirmative Defense
       The trial court denied appellant's motion to conduct a bifurcated jury trial on its
statute of limitations affirmative defense. Appellant contends that, pursuant to Code of
Civil Procedure section 597.5, this matter should have been decided by the jury because it
involved disputed facts. This section provides that, if the answer in a medical
malpractice action "pleads that the action is barred by the statute of limitations, and if any
party so moves or the court upon its own motion requires, the issues raised thereby must
be tried separately and before any other issues in the case are tried."
        Appellant contends that it raised a disputed factual issue that was required to be
tried: whether its payment of respondent's medical expenses was a partial/advance
payment or a final payment. It argues that both parties considered appellant's payment to
be "a final payment" instead of an advance or partial payment: "Nobody on behalf of

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[appellant] considered the payment of the medical bills to be an advance payment against
future litigation because they were never aware of any additional claims or that
[respondent] intended on pursuing additional claims." Respondent "did not consider this
to be an advanced or partial payment but a complete reimbursement for his then out-of-
pocket costs and that this would be the end of it."
       Section 11583 does not contain a scienter requirement. Thus, whether appellant
intended the reimbursement of respondent's medical expenses to be something other than
an advance or partial payment is not determinative. As a matter of law, "a defendant's
voluntary assumption of the cost of providing treatment is the advance payment of
damages under Insurance Code section 11583." (Doe v. Doe 1, supra, 208 Cal.App.4th
at p. 1191.) "If the plaintiff in an auto collision case had a wound that left a scar, and the
defendant told the plaintiff to consult with a plastic surgeon about removing the scar,
surely the defendant's payment of the surgeon's bill would be advance partial payment of
the plaintiff's damages." (Id., at p. 1194.) The same is true here where appellant paid
respondent's medical expenses incurred through the date of payment, and respondent did
not sign an agreement releasing appellant from liability.
       Appellant's construction of section 11583 is at variance with the time-honored rule
that remedial legislation ". . . must be liberally construed 'to effectuate its object and
purpose, and to suppress the mischief at which it is directed.' [Citation.)]" (Daly v.
Exxon Corp. (1997) 55 Cal.App.4th 39, 44.) Our construction of section 11583 serves
the legislative purpose "to prevent an injury victim from being lulled into a false sense of
complacency about the need to sue because an advance or partial payment by the
defendant or his insurer shows their apparent cooperativeness." (Doe v. Doe 1, supra,
208 Cal.App.4th, at p. 1191.) Section 11583 does not require evidence that the defendant
or his insurer intended to "lull a plaintiff into not filing a timely complaint. The
legislative history says nothing about the need to show such intent, . . . and neither does



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the statute." (Id., at p. 1195.) We agree with the rationale of Doe. We decline to insert
an intention element into the statute.
       The relevant facts concerning the application of section 11583 were undisputed in
the trial court. When respondent was not represented by counsel, appellant paid his
medical expenses and failed to notify him in writing of the statute of limitations.
Respondent did not sign a release of liability. Thus, "[t]he question was solely one of law
addressed to the trial judge and to be decided by him. In cases of this kind where there is
no conflict in the evidence upon which the determination of a question of law rests the
decision is for the court and it should not be submitted to the jury. [Citation.]" (Adrian v.
Guyette (1936) 14 Cal.App.2d 493, 504 -505.) Based on the undisputed facts, the trial
court correctly decided that, pursuant to section 11583, the one-year statute was tolled
and therefore did not bar respondent's action.
                            The Trial Court Did Not Erroneously
                        Refuse to Instruct on Apportionment of Fault
       Appellant requested that the trial court instruct the jury that, if it found that Ruhoff
"was at fault" and its "fault . . . was a substantial factor in causing [respondent's] harm," it
should "assign percentages of responsibility" to both appellant and Ruhoff. "[U]nless
there is substantial evidence that an individual is at fault [and its fault was a substantial
factor in causing harm], there can be no apportionment of damages to that individual."
(Wilson v. Ritto (2003) 105 Cal.App.4th 361, 367.) The burden is on the defendant to
prove that a nonparty tortfeasor was at fault. (Id., at p. 369.)
       "Substantial evidence necessary to support a jury instruction is ' "evidence
sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed
of reasonable [persons] could have concluded that the particular facts underlying the
instruction did exist . . . ." [Citation.]' [Citations.] 'Evidence is substantial if a
reasonable jury could find it persuasive [citation] and therefore conclude " ' "that the
particular facts underlying the instruction did exist" ' " [citation].' [Citation.]" (Bay

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Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, 465-466.) "We
review the evidence most favorable to the applicability of the requested instruction, as a
party is entitled to that instruction if that evidence could establish the elements of the
theory presented. [Citation.]" (Ash v. North American Title Co. (2014) 223 Cal.App.4th
1258, 1277.)
       Respondent's counsel objected to appellant's proposed instruction because
appellant had "not put forth a prima facie case for liability on the part of Ruhof."
Appellant's counsel replied: "There's undisputed evidence that the . . . sponge is what
introduced the pseudomonas found in [respondent's] knee into the facility. . . . [¶] . . .
[Appellant] had the right to assume that the . . . sponges that they were supplied with
were not contaminated. The fact that they were, it's a products liability theory. I'm not
required to produce evidence of a standard of care or of a packaging expert."
       The court refused to give appellant's instruction. It reasoned: "[T]here's not been
sufficient evidence of a breach of the standard of care presented in this case, nor has there
been evidence of res ipsa [loquitur], which requires, at a minimum, the plaintiff to, in this
case, prove that an event would not happen without negligence." When appellant asked
the court to indicate the applicable standard of care, it replied: "There's no showing of
negligence by Ruhof Corporation. There's just a showing that . . . pseudomonas
contaminated the sponge, but there's been no showing that that was the result of
negligence."
       When appellant's counsel told the court that he was proceeding on a "products
liability theory" and was "not required to produce evidence of a standard of care," he in
effect was saying that Ruhof was strictly liable for any defect in the sponge. "A
manufacturer . . . may be held strictly liable for placing a defective product on the market
if the plaintiff's injury results from a reasonably foreseeable use of the product.
[Citation.] Strict product liability may be premised upon a theory of design defect,
manufacturing defect or failure to warn. [Citation.]" (Chavez v. Glock, Inc. (2012) 207

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Cal.App.4th 1283, 1302.) Where strict liability applies, it is unnecessary to prove
negligence. But "the plaintiff must prove a defect caused injury. [Citation.]" (Id., at
p. 1304.)
       "Because an appealed judgment is presumed correct and an appellant has
the burden to show error, we cannot conclude that the refusal to give an instruction was
error absent an adequate showing that the proposed instruction was proper. [Citation.]"
(Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80.) Accordingly, appellant has the
burden of showing that substantial evidence supports its theory that the sponges were
defective when Ruhof placed them on the market. Appellant contends that substantial
evidence establishes "that Ruhof's sponge had [an] insufficient amount of preservative
when it was placed in the marketplace." In support of this contention, appellant cites the
deposition testimony of Marc Esquenet, which was read to the jury, and the trial
testimony of Jessica Gruendler.
       Esquenet was a chemist who worked for Ruhof. He testified as follows: The
sponges were shipped to appellant in a sealed plastic bag. The package contained
preservatives "to prevent the growth of bacteria in the product." After the production and
shipping of the sponges, "the preservation system . . . was compromised by extended
exposure to a challenge organism that exhausted or used up the preservative." The
challenge organism was a bacteria that entered the plastic bag. "All plastics are
permeable." Esquenet did not know how, when, or where the bacteria had entered the
plastic bag. He did not "have enough evidence to make a determination" whether the
bacteria had entered the plastic bag "at Ruhof's facility or in transit or after it [got] to
[appellant]." As a preventive measure, Ruhof immediately doubled the amount of
preservative. Thereafter, it has received no report of contaminated sponges.
       Jessica Gruendler was a registered nurse with a master's degree in nursing.
Appellant called her as an expert witness on the sterilization of surgical instruments. She
opined that appellant's sterilization procedures complied with the applicable standard of

                                                9
care. Over respondent's no "[f]oundation" objection, Gruendler further opined that
Ruhof's doubling of the amount of preservative in its sponges "would tell me that their
investigation led to a defect in their initial product." The objection to Gruendler's further
opinion should have been sustained because it was based on sheer speculation, pure and
simple. (People v. Richardson (2008) 43 Cal.4th 959, 1008; Jennings v Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App. 4th 1108, 1117.)
       The testimony of Esquenet and the admissible testimony of Gruendler is not
substantial evidence that Ruhof's sponge was delivered defectively because, as appellant
claims, it "had [an] insufficient amount of preservative when it was placed in the
marketplace." No expert testified as to what would be a sufficient amount of preservative
and whether Ruhof's sponges contained that amount. The bare fact that, as a preventive
measure, Ruhof doubled the amount of preservative does not establish that the original
amount was insufficient. Esquenet testified that the sponges had been manufactured
since the mid-1980s "[w]ith, essentially, the same formulation." The sponges received by
appellant were the only ones produced by Ruhof that tested positive for contamination.
"No other customer of Ruhof since the mid[-]1980s has ever complained of a problem
with the use" of its sponges.
                                        Disposition
       The judgment is affirmed. Respondent shall recover his costs on appeal.
      CERTIFIED FOR PUBLICATION.


                                                         YEGAN, J.
       We concur:


              GILBERT, P.J.


              PERREN, J.


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                                Martin J. Tangeman, Judge

                        Superior Court County of San Luis Obispo

                           ______________________________


              Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz, for Appellant.


              Jeffrey D. Stulberg; Stulberg Law. Neil S. Tardiff, Tardif Law Offices, for
Respondent.




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