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Court of Appeal, Second District, Division 7, California.

Raymond Bruce BELTON, Plaintiff and Appellant, v. BOWERS AMBULANCE SERVICE, Defendant and Respondent.

No. B112501.

Decided: July 13, 1998

Raymond Bruce Belton, in pro. per., for plaintiff and appellant. Mark Schreiber, Encino, and Rebecca L. Smith, Cedar Rapids, IA, for Defendant and Respondent.


 A prisoner's time to sue a health care provider can be extended by incarceration up to the maximum three years from time of injury permitted by the MICRA (Medical Injury Compensation Reform Act) limitations statute.


Plaintiff and appellant Raymond Bruce Belton is an inmate at a federal prison.   On January 4, 1996, Belton was injured at the prison, and defendant and respondent Bowers Ambulance Service was summoned to transport him to a hospital.

Belton's complaint alleged that Bower's attendants injured his knee and head by dropping him as they attempted to lift him into the ambulance.   He further alleged that they failed to carefully strap him down, so that he struck his head again when the ambulance came to a sudden stop.

Belton filed his action January 10, 1997, more than a year after his injury occurred.   Bowers demurred to the complaint, urging that it was barred by the statute of limitations.   The trial court sustained the demurrer, and this appeal followed.

So far as the record reflects, Belton is still in prison-his appellate briefs give the prison as his address.


 Resolution of the appeal requires application and reconciliation of two Code of Civil Procedure provisions for limitation of actions, sections 340.5 and 352.1.1  Because our decision turns on precise interpretation of these sections, we set forth relevant portions at length.

Section 340.5 is part of MICRA.   As relevant, it provides:

“In an action for injury ․ 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 ․ [additional text sets forth special tolling rules for minors].”

Section 340.5 was enacted in 1970 and most recently amended in 1975. Ambulance attendants are “health care providers” as defined in section 340.5 subdivision (1) because they are licensed under Health & Safety Code section 1797.160, part of Division 2 of that Code.

Section 352.1 specifies:

“(a) If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335), 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 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.”

Section 352.1 was originally part of section 352, enacted in 1872, but was recodified in 1994.

If section 352.1 applies to Belton's case, and his time of imprisonment, up to two years, is not counted as part of the time “limited for the commencement of the action,” then his complaint was timely filed.   On the other hand, if section 352.1 does not apply, then, under section 340.5, Belton had only one year after discovering his injury to file suit.

In Hollingsworth v. Kofoed (1996) 45 Cal.App.4th 423, 52 Cal.Rptr.2d 808, the court concluded that section 352.1 did not apply to toll prisoner claims against medical providers.   The court noted that section 340.5 was part of MICRA, and “was passed in order to shorten the statute of limitations applicable to medical malpractice actions.”  (Hollingsworth at p. 426, 52 Cal.Rptr.2d 808.)   Further, the court reasoned, the text of section 340.5 evinces legislative intent to limit tolling only to those circumstances specifically enumerated.   Said the court,“[w]e find no legislative intent to exempt prisoners from the limitation placed upon tolling ․ [in section 340.5].” (Id., at p. 427, 52 Cal.Rptr.2d 808.)

We respectfully disagree.   We find nothing in the language of sections 340.5 and 352.1, nor in the policy underlying MICRA, which compels conclusion that section 352.1 cannot apply in health care provider cases.

 Basic principles of statutory construction set the stage for correct analysis.   We are to give effect to the plain meaning of the words.   (Delaney v. Superior Court (1990) 50 Cal.3d 785, 799, 800, 268 Cal.Rptr. 753, 789 P.2d 934.)   We are to harmonize statutory sections relating to the same subject.  (Industrial Risk Insurers v. Rust Engineering Co. (1991) 232 Cal.App.3d 1038, 1042, 283 Cal.Rptr. 873.)   We are, of course, to attempt to effectuate the legislative purpose.  (Ibid).

The plain language of the two sections does not support the result in Hollingsworth.   Section 352.1 does not exempt MICRA claims (or any other claims) from its application.   The Legislature revised section 352.1 recently, but inserted no exception for MICRA claims.

Likewise, section 340.5 does not expressly negate application of section 352.1 in health care provider cases.   We agree with Hollingsworth that 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.   Thus, our interpretation gives effect to the plain language of both sections, while Hollingsworth reads into each section matter which is not expressed there.

Reading the two sections as we propose also honors the interpretative rule requiring that statutory sections relating to the same subject be harmonized.   We give effect to section 352.1, but without violating the express terms of section 340.5.   By contrast, Hollingsworth simply discards the policy of section 352.1.

Nor does our decision defeat the policy objective of section 340.5 to more restrictively limit suits against health care providers.   Section 340.5 clearly prevents tolling in prisoner suits which extends the total time to sue beyond three years.   By contrast, were Belton suing for some non-MICRA tort he might have considerably longer to sue.   For example, if his claim were for fraud, he could sue within five years or more-three years after discovery of the fraud (Code Civ. Proc. § 338), plus the two year tolling under section 352.1.   In other words, section 340.5's policy can be and is honored by reconciling it with section 352.1 as we do here.   Neither the text of section 340.5, nor its purpose, support complete negation of section 352.1 in MICRA cases, the result reached in Hollingsworth.


The judgment is reversed and remanded.   Appellant shall recover his costs on appeal.


1.   All references to code by section only are to the Code of Civil Procedure.

NEAL, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.

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