Filed 11/20/13 Salah v. St. Joseph Hosp. of Orange CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


PETER SALAH et al.,

     Plaintiffs and Appellants,                                        G047308

         v.                                                            (Super. Ct. No. 30-2011-00499152)

ST. JOSEPH HOSPITAL OF ORANGE,                                         OPINION

     Defendant and Respondent.



                   Appeal from a judgment and a postjudgment order of the Superior Court of
Orange County, William M. Monroe, Judge. Affirmed.
                   Law Offices of Tina Locklear and Tina Marie Locklear for Plaintiffs and
Appellants.
                   Carroll, Kelly, Trotter, Franzen & McKenna, Michael J. Trotter,
David P. Pruett and Matthew N. Trotter for Defendant and Respondent.

                                          *                  *                  *
                                     INTRODUCTION
              Plaintiffs Peter Salah and his niece, Samia Hishmeh (plaintiffs), appeal
after the trial court granted summary judgment in favor of defendant St. Joseph Hospital
of Orange (the hospital) and denied plaintiffs’ motion to vacate the court’s order. In their
complaint filed in August 2011, plaintiffs alleged that on May 22, 2010, a nurse
negligently instructed then 70-year-old Salah to put on his shoes and socks, while sitting
on a bed, and that both plaintiffs suffered serious injuries when Hishmeh unsuccessfully
tried to stop Salah from falling.
              The hospital moved for summary judgment on the ground plaintiffs’
complaint was time-barred. Plaintiffs opposed the motion on the ground the applicable
one-year statute of limitations had been tolled because on May 18, 2011, they each sent
the hospital a letter they contend constituted a notice of the intention to sue the hospital
within the meaning of section 364 of the Code of Civil Procedure. (All further statutory
references are to the Code of Civil Procedure.) Plaintiffs contend the trial court further
erred by denying their motion to vacate the order granting summary judgment on the
ground those letters were sufficient to toll the applicable statute of limitations.
              We affirm. Plaintiffs’ letters did not constitute notices of the intention to
sue the hospital within the meaning of section 364 because they failed to include any of
the content required by subdivision (b) of section 364. Consequently, plaintiffs’
complaint was time-barred, and the trial court properly granted summary judgment and
denied the motion to vacate.
                                      BACKGROUND
                                              I.
                                      THE COMPLAINT
              On August 11, 2011, plaintiffs filed a complaint against the hospital,
asserting four separate claims for negligence. In the complaint, plaintiffs alleged that on


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May 22, 2010, Hishmeh arrived at the hospital to pick up then 70-year-old Salah who
recently had hernia surgery. Plaintiffs alleged Hishmeh saw Salah falling forward off the
bed he was sitting on, as he tried to put on his shoes and socks (as directed by his nurse).
They further alleged Hishmeh unsuccessfully attempted to prevent Salah from falling by
running forward to grasp him, but both of them “tumbled painfully to the ground” and
suffered injuries.
                                              II.

                THE HOSPITAL FILES A MOTION FOR SUMMARY JUDGMENT
                             WHICH PLAINTIFFS OPPOSE.
              The hospital filed a motion for summary judgment on the ground the
complaint was filed after the expiration of the applicable one-year statute of limitations
for professional negligence under section 340.5. The motion included evidence plaintiffs
were aware on May 22, 2010 of the facts they believe show the hospital was negligent or
otherwise responsible for plaintiffs’ injuries that occurred.
              In opposition to the motion for summary judgment, plaintiffs produced
evidence of correspondence sent by their attorney to the hospital. The first letter, dated
June 1, 2010, stated: “Please be advised that this office represents Samia His[h]meh in
her claim for injuries and damages that she sustained in the emergency department of this
hospital. [¶] Please do not contact our client directly and send all further correspondence
and communication to me. I look forward to working with you in resolving this matter.”
The letter stated that the “[d]ate of [l]oss” was “06/21/2010.” Plaintiffs’ counsel sent a
second letter on behalf of Salah, also dated June 1, 2010, which contained identical
content as the letter sent on behalf of Hishmeh. (We refer to plaintiffs’ counsel’s two
letters, dated June 1, 2010, as the June 1, 2010 letters.)
              Plaintiffs also produced evidence of two letters dated May 18, 2011, written
by their attorney, and sent to the hospital (the May 18, 2011 letters), which plaintiffs’ trial



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counsel argued to the trial court constituted notices of plaintiffs’ intention to sue the
hospital within the meaning of section 364. Plaintiffs’ counsel further argued that
because service of the May 18, 2011 letters tolled the one-year statute of limitations for
90 days pursuant to section 364, subdivision (d), the complaint was timely filed.
              Plaintiffs’ counsel’s declaration, filed in opposition to the motion for
summary judgment, stated: “On May 18, 2011, after realizing the previous
correspondence intended to provide notice to [the hospital] of Plaintiff’s intent to file a
civil action was defective, I sent further written correspondence to [the hospital], seeking
to comply with California Code of Civil Procedure Section 364, advising that my law
firm had been retained to pursue a claim on behalf of Plaintiff in connection with the
injuries and damages they sustained in its emergency department on May 22, 2010. A
true and correct copy of said correspondence is attached hereto as ‘Exhibit B.’”
Exhibit B to plaintiffs’ counsel’s declaration contained the May 18, 2011 letters. The
first letter stated: “Please be advised that this office represents Samia Hishmeh. We sent
you a representation letter on June 1, 2010 which incorrectly referred to the date of injury
as being 6/21/10 (20 days later than the date of our letter). We apologize for the error.
The correct date that Ms. Hishmeh sustained the injuries at your hospital and was then
taken to your emergency room was May 21, 2010 (a month prior to the date of our letter).
Additionally, she returned to your ER the next day. Ms. Hishmeh’s treatment is still
ongoing. [¶] If you have questions or concerns, please contact me. Do not contact the
client directly.” The second letter was sent on behalf of Salah, and had identical content
to the letter sent on behalf of Hishmeh.
                                              III.
           THE TRIAL COURT GRANTS THE MOTION FOR SUMMARY JUDGMENT.
              The trial court granted the motion for summary judgment and explained its
reasoning in a minute order, as follows: “Plaintiffs acknowledge the injury occurred on


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5/22/10. The only issue is whether the statute of limitations was tolled by CCP §364. [¶]
The supposed Notices of Intent were defective. It is not entirely clear that the first
defective Notice sent in June 2010 even constituted notice under CCP §362 [sic].
Defendant correctly cites to Bennett for the proposition that the second Notice does not
toll the statute of limitations. That case did not address the situation present here
involving an originally defective Notice. [¶] As to the validity of the May 2011 notice,
CCP §364(b) states that it must ‘notify the defendant of the legal basis of the claim and
the type of loss sustained, including with specificity the nature of the injuries suffered.’
A review of the May 2011 Notice letters fail to yield any such language. [¶] The Notices
(both June 2010 and May 2011) did not comply with CCP §364.”
              Judgment was entered against plaintiffs and in favor of the hospital.

                                             IV.

              PLAINTIFFS UNSUCCESSFULLY MOVE TO VACATE THE ORDER
                   GRANTING SUMMARY JUDGMENT, AND APPEAL.
              Plaintiffs filed a motion to vacate the order granting summary judgment,
which we construe as a motion to vacate the judgment entered after the trial court granted
the motion for summary judgment. The basis of the motion to vacate was that the
complaint was not time-barred because the May 18, 2011 letters were legally sufficient to
toll the statute of limitations under section 364, subdivision (d).
              The trial court denied the motion to vacate. The court’s minute order
stated: “The notice of motion must state with precision the nature of the relief sought and
the grounds therefore. [¶] The memorandum suggests that this is a motion for mandatory
relief under CCP §473. The basis of the motion is ‘hey Court, you got this wrong’ and ‘I
did a good enough job on that letter to survive summary judgment’—relief under §473 is
simply not available. [¶] Stripping away titles and labels, plaintiffs’ motion to vacate is
in fact a motion for reconsideration (CCP §1008). [¶] CCP §364(d) tolls the statute of


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limitations if a notice of intent to sue is served on the health care provider within the last
90 days. The parties in this case disagree whether the letter dated 05/18/11 was sufficient
to trigger the tolling provision. Pursuant to §364(b): ‘No particular form of notice is
required, but it shall notify the defendant of the legal basis of the claim and the type of
loss sustained, including with specificity the nature of the injuries suffered.’ [¶] That the
purpose of MICRA [(Medical Injury Compensation Reform Act of 1975)] is to encourage
parties to negotiate a resolution to medical malpractice disputes, the specificity-
requirement in §364(b) is necessarily directed toward this purpose. A notice which fails
to provide any information regarding the injuries or legal basis of the claim does little if
anything to promote evaluation or encourage resolution. [¶] The 05/18/11 letter does not
contain: any description of injuries; any legal basis for a civil suit; any indication
commensurate with actually filing a lawsuit; any reference to §364 at all. The 05/18/11
letter provided defendant no relevant information whatsoever, and in fact appears to have
been a letter whose sole purpose was to remind defendant not to contact plaintiffs
directly. [¶] Nothing in the legislative history or caselaw suggests that §365 was intended
to forgive ineffective attempts to toll the [statute of limitations] under §364(d).”
              Plaintiffs appealed from the judgment and from the postjudgment order
denying the motion to vacate.
                                       DISCUSSION
                                               I.
             THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT.
                                              A.
                                     Standard of Review
              We review orders granting summary judgment de novo. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767; Village Nurseries v. Greenbaum
(2002) 101 Cal.App.4th 26, 35.) A motion for summary judgment is properly granted if


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the moving papers establish there is no triable issue of material fact and the moving party
is entitled to judgment as a matter of law. (§ 437c, subd. (c); Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843.) “[W]hen, as here, the question involves the trial court’s
interpretation of a statute and the legal meaning of a written instrument on undisputed
evidence, the question is one of law, subject to de novo review.” (Kelly v. County of Los
Angeles (2006) 141 Cal.App.4th 910, 919.) Where the uncontradicted facts are
susceptible of only one legitimate inference, the trial court may resolve a statute of
limitations issue on summary judgment. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103,
1112.)
                                              B.

          Summary Judgment Was Properly Granted Because the Complaint Was
         Untimely Filed; Plaintiffs Never Sent a Notice Complying with Section 364,
                   and, Thus, the Statute of Limitations Was Not Tolled.
               “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.” (§ 340.5.) The California Supreme Court has explained: “Under the
discovery rule, the statute of limitations begins to run when the plaintiff suspects or
should suspect that her injury was caused by wrongdoing, that someone has done
something wrong to her.” (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110.)
               Here, it is undisputed plaintiffs became aware of the hospital’s alleged
wrongdoing as the cause of their injuries on May 22, 2010. Thus, the parties agree, the
applicable one-year statute of limitations began to run on that date and, unless tolled,
expired by the time the complaint was filed in August 2011. We therefore turn to
consider whether the statute of limitations was tolled under section 364, subdivision (d),
thereby rendering the complaint timely filed.


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              As part of MICRA, section 364, subdivision (a) “requires plaintiffs to give
defendants 90 days’ notice of intent to sue for actions ‘based upon’ defendants’
professional negligence. Section 364, subdivision (d), tolls the ‘applicable statute of
limitations’ governing the negligence action for 90 days following proper statutory
notice.” (Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 211.)
              Section 364 provides in its entirety: “(a) No 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. [¶]
(b) No particular form of notice is required, but it shall notify the defendant of the legal
basis of the claim and the type of loss sustained, including with specificity the nature of
the injuries suffered. [¶] (c) The notice may be served in the manner prescribed in
Chapter 5 (commencing with Section 1010) of Title 14 of Part 2. [¶] (d) If the notice is
served within 90 days of the expiration of the applicable statute of limitations, the time
for the commencement of the action shall be extended 90 days from the service of the
notice. [¶] (e) The provisions of this section shall not be applicable with respect to any
defendant whose name is unknown to the plaintiff at the time of filing the complaint and
who is identified therein by a fictitious name, as provided in Section 474. [¶] (f) For the
purposes of this section: [¶] (1) ‘Health care provider’ means any person licensed or
certified pursuant to Division 2 (commencing with Section 500) of the Business and
Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the
Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with
Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health
dispensary, or health facility, licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code. ‘Health care provider’ includes the legal
representatives of a health care provider; [¶] (2) ‘Professional negligence’ means
negligent act or omission to act by a health care provider in the rendering of professional


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services, which act or omission is the proximate cause of a personal injury or wrongful
death, provided that such services are within the scope of services for which the provider
is licensed and which are not within any restriction imposed by the licensing agency or
licensed hospital.” (Italics added.)
              In Preferred Risk Mutual Ins. Co. v. Reiswig, supra, 21 Cal.4th at
pages 214-215, the California Supreme Court explained the legislative purpose behind
section 364 as follows: “[T]he Legislature enacted MICRA in 1975 in response to
rapidly increasing premiums for medical malpractice insurance. [Citations.] The
Legislature viewed MICRA as ‘“an interrelated legislative scheme . . . to deal specifically
with all medical malpractice claims.”’ [Citation.] The purpose of the notice of intent to
sue and the 90-day tolling period of section 364 was to decrease the number of actions
premised on professional negligence by establishing a procedure to encourage the parties
to negotiate ‘“outside the structure and atmosphere of the formal litigation process.”’
[Citation.] We have held that the tolling period of section 364, subdivision (d), applies to
those injuries governed by the MICRA statute of limitations under section 340.5.
[Citations.] The cases agree that MICRA provisions should be construed liberally in
order to promote the legislative interest in negotiated resolution of medical malpractice
disputes and to reduce malpractice insurance premiums.”
              Plaintiffs contend the May 18, 2011 letters constituted notices of the
intention to sue in compliance with section 364, subdivision (a), which thereby tolled the
statute of limitations for 90 days. The hospital contends the May 18, 2011 letters did not
satisfy the notice requirement of section 364 and thus did not trigger the tolling provision
of section 364, subdivision (d) as a matter of law.
              In Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1204, the
appellate court concluded a “claim” served on one of the defendants by the plaintiff fell
“significantly short of the specificity requirement” of section 364. The court explained:


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“[The claim] states, ‘This is a claim for medical malpractice which occurred on
February 24, 1986, at the Merced Community Medical Center.’ No mention is made of
the type of injuries suffered. Moreover, the claim simply states, ‘The names of the public
employees causing the claimant’s injuries are medical personnel whose names are
unknown to the claimant at this time.’ This cannot be construed as sufficient notice to
the individual physicians who were charged with malpractice. Under these circumstances
the . . . claim cannot serve as a proper notice of intention to commence an action as
required by Code of Civil Procedure section 364.” (Anson v. County of Merced, supra, at
p. 1204.)
              In Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 178, the plaintiff
served a notice “alleging general medical negligence arising from ‘surgeries’ which
caused multiple injuries,” including an E. coli infection. The appellate court concluded:
“While the specification of injury contained in plaintiff’s section 364 claim is not a model
of clarity, it does inform the health care practitioner-defendant of the contemplated
lawsuit arising out of the plastic and reconstructive surgery performed. Furthermore, the
notice informs the doctor that plaintiff suffered severe and permanent damage to her body
and health. Such notice furthers the public policy underlying section 364 to give the
parties a meaningful opportunity to settle the claim and thus reduce the number of
medical negligence suits in our courts.” (Id. at p. 179.)
              Although section 364, subdivision (b) does not require any “particular form
of notice” (italics added), it does delineate required content in that it provides the notice
must “notify the defendant of the legal basis of the claim and the type of loss sustained,
including with specificity the nature of the injuries suffered.” The May 18, 2011 letters
informed the hospital that plaintiffs’ attorney represented the plaintiffs, corrected the
“date of injury” that had been incorrectly stated in the June 1, 2010 letters, stated




                                              10
plaintiffs’ unspecified “treatment” was “ongoing,” and instructed the hospital not to
contact the plaintiffs directly.
               The May 18, 2011 letters, however, did not describe the nature of either
plaintiff’s alleged injuries, did not identify the legal basis of either plaintiff’s claims, and
did not state the type of alleged losses sustained. They did not cite or otherwise refer to
section 364, much less state that plaintiffs intended to file a lawsuit against the hospital
for professional negligence. Consequently, the May 18, 2011 letters failed to contain the
required content of a notice of the intention to commence an action against the hospital
within the meaning of section 364, and, thus, the tolling provisions of section 364,
subdivision (d) were never triggered.
               Plaintiffs contend the May 18, 2011 letters tolled the statute of limitations
notwithstanding their deficiencies. Plaintiffs’ argument is based on section 365, which
provides: “Failure to comply with this chapter shall not invalidate any proceedings of
any court of this state, nor shall it affect the jurisdiction of the court to render a judgment
therein. However, failure to comply with such provisions by any attorney at law shall be
grounds for professional discipline and the State Bar of California shall investigate and
take appropriate action in any such cases brought to its attention.”
               Nothing in section 365 suggests that the applicable statute of limitations is
tolled even when notice purportedly given under section 364 is defective. Otherwise, the
notice requirements would be irrelevant. (See Edwards v. Superior Court, supra, 93
Cal.App.4th at p. 180 [“A logical application of the rule that court proceedings are not
invalidated by a total failure to serve the section 364 notice is that failure to specify in the
section 364 notice all injuries suffered cannot bar a plaintiff from including the injury
unintentionally omitted from the notice in the lawsuit against the medical practitioner if it
is not otherwise barred by the statute of limitations” (italics added)].)




                                               11
              Plaintiffs have confused the issue of jurisdiction with the issue whether
inadequate notice tolls the statute of limitations. (See People v. Williams (1999) 77
Cal.App.4th 436, 457-458 [“In civil cases, the statute of limitations is not jurisdictional
but merely serves a procedural function and constitutes an affirmative defense that is
waived unless pleaded and proved”].) Under section 365, the trial court has jurisdiction
over a medical malpractice action even if the plaintiff failed to provide notice under
section 364. (Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 268.) The relevant issue
here is not jurisdiction, but whether a purported section 364 notice that fails to contain the
statutorily required content tolls the statute of limitations; we hold it does not. The trial
court did not err by granting the motion for summary judgment.
                                              II.

                    THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
                         BY DENYING THE MOTION TO VACATE.

              Plaintiffs contend the trial court erred by denying their motion to vacate the
order granting summary judgment under section 473, subdivision (b), which permits the
trial court to grant relief from a judgment, order, or other proceeding taken against a party
by “mistake, inadvertence, surprise, or excusable neglect.” We review an order denying
a motion for discretionary relief under section 473 for abuse of discretion. (Zamora v.
Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; Rappleyea v. Campbell
(1994) 8 Cal.4th 975, 980.)
              In Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1563, the appellate court
stated: “We hold that appellants cannot extend the medical malpractice statute of
limitations, section 340.5, by applying section 473 to the notice provision of section 364.
Section 340.5 makes no provision for an extension of a limitations period on a showing
of good cause, or specifically under section 473. Indeed, section 340.5 prohibits tolling
beyond the three-year period except in particular circumstances, and no tolling is



                                              12
provided at all for the one-year period following discovery. Section 364, which contains
a limitations period requiring 90 days’ notice prior to commencing a medical malpractice
action, should likewise not be susceptible to extension as it is contained within title 2 of
the Code of Civil Procedure (‘Time of Commencing Actions’) and inexorably impacts
upon the limitations period of section 340.5. ‘Unknown defendants’ are the only
exception to section 364’s notice requirements; there is no exception for good cause
shown, and accordingly application of section 473 is precluded. We conclude that
applying section 473 to section 340.5 through section 364 would create a ‘loophole’ not
envisioned by the Legislature.”
              The appellate court further stated, “[e]ven were section 473 applicable, we
would find that the trial court did not abuse its discretion in denying appellants the relief
they sought. [Citation.] Under section 473, a reasonable mistake of law is excusable.
[Citation.] In order to determine whether counsel’s mistake is deemed excusable, the
court looks at ‘the reasonableness of the misconception and the justifiability of lack of
determination of the correct law.’ [Citation.] [¶] Here, appellants’ counsel’s excuses are
not reasonable.” (Hanooka v. Pivko, supra, 22 Cal.App.4th at p. 1563.)
              Here, even were we to assume the statute of limitations set forth in
section 340.5 could be tolled by applying section 473 to the notice provision of
section 364, plaintiffs do not offer any explanation, much less a reasonable one, for their
failure to comply with the content requirements for the notice as set forth in section 364,
subdivision (b). In their opening brief, the closest that plaintiffs come to offering such an
explanation is in their statement: “On May 18, 2011, when [plaintiffs’] § 364 notices
were sent, the extent of [plaintiffs’] injuries was unknown. . . . [Plaintiffs’] attorney
thought that stating that treatment was ongoing was sufficient for purposes of the § 364
notices. . . . [Plaintiffs’] attorney did not yet know the magnitude of the injuries and did
not yet know whether the complaint would be for the wrongful death of Peter Salah or for


                                              13
his pain and suffering resulting from the injury.” Plaintiffs’ argument does not explain
why the May 18, 2011 letters failed to assert an intention to commence legal action
against the hospital, identify the legal basis of the claims, e.g., negligence, or identify the
type of injuries allegedly sustained by either plaintiff. That plaintiffs’ counsel was
unaware of the extent of plaintiffs’ injuries does not explain why the May 18, 2011 letters
failed to contain the requisite information.


                                       DISPOSITION
              The judgment and the postjudgment order denying the motion to vacate are
affirmed. Respondent shall recover costs on appeal.




                                                    FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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