BRODEHL v. BECKER

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Court of Appeal, Third District, California.

Tyrone J. BRODEHL, Plaintiff and Appellant, v. Donald L. BECKER et al., Defendants and Respondents.

Civ. C000502.

Decided: September 21, 1988

Gary G. Johnson, Sacramento, for plaintiff and appellant. Kroloff, Belcher, Smart, Perry & Christopherson and Velma Lim, Stockton, Diehl, Steinheimer, Riggio, Haydel & Mordaunt, Kevin M. Seibert and Joseph W. Diehl, Stockton, for defendants and respondents.

In this case we hold the limitations period applicable to a plaintiff who gives notice of intent to sue a health care provider for professional negligence within the last 90 days of the one year period,1 is one year plus 180 days from the date the notice is given (Code Civ.Proc., §§ 356, 364, 340.5).2  Because the trial court granted summary judgment in favor of defendants based upon an improper calculation of the limitations period, we will reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Only a brief summary of the facts is necessary.   Plaintiff Tyrone Brodehl was admitted to the emergency room at Lodi Memorial Hospital on June 20, 1983, after complaining of severe stomach pain.   The attending physician, Dr. Becker, failed to discover plaintiff had appendicitis.   Plaintiff was transferred to San Joaquin General Hospital on June 21, 1983, and underwent exploratory surgery on June 23, 1983, which revealed a perforated appendix requiring an appendectomy.   Upon awakening, plaintiff overheard doctors discussing that he had a ruptured appendix.

On July 2, 1983, plaintiff again underwent surgery as he was “eviscerating” through the incision.   In deposition testimony plaintiff stated he concluded malpractice had occurred at that time.

On June 14, 1984, plaintiff gave a 90–day notice of intent to sue defendants as required by section 364, subdivision (a).   Plaintiff filed his complaint on October 9, 1984, one year 108 days after the June 23, 1983 appendectomy and one year 99 days after the July 2, 1983 surgery for evisceration.

Defendants moved for summary judgment on the ground that plaintiff's claim was barred by the statute of limitations as the complaint had been filed more than 1 year 90 days after the date plaintiff knew or should have known of the alleged malpractice.   Plaintiff did not challenge this interpretation of the applicable limitations period.   Instead plaintiff opposed the summary judgment motions by asserting he did not discover he had a potential malpractice claim until approximately July 19, 1983, when he consulted an attorney.   Claiming in his declaration that he was heavily sedated during his hospitalization, plaintiff asserted it was a question of fact whether he discovered the malpractice within the statutory period.

The trial court granted the summary judgment motions, finding there was no triable issue of fact regarding plaintiff's discovery of the cause of action since he admitted in deposition testimony that he actually discovered the alleged malpractice on July 2, 1983.   The court further found plaintiff should have discovered the alleged malpractice on the date of the appendectomy and that, using either date, the complaint was untimely as it was filed more than one year 90 days from the date of injury.   This appeal followed.

DISCUSSION

 Plaintiff contends the trial court erred in granting defendant's summary judgment motion for two reasons:  (1) a genuine issue of fact exists as to when the statute of limitations began to run and (2) the complaint was timely filed under the proper calculation of the statute of limitations.   Preliminarily, we note plaintiff's latter contention was not presented to the trial court and thus constitutes a new theory on appeal.   Generally, a party is not permitted on appeal to change the theory of his or her case.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, §§ 316–323, pp. 327–334.)   There are, however, exceptions to the rule.   A party may change the theory of the case if the new issue involves solely a question of law.  (Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1113, 203 Cal.Rptr. 388.)  “[A]n appellate court may allow an appellant to assert a new theory of the case on appeal where the facts were clearly put at issue at trial and are undisputed on appeal.  (Citation.)”  (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879, 242 Cal.Rptr. 184.)   In this case the new issue on appeal involves the statutory construction of sections 364 and 356, which is a legal question.   We therefore consider the issue.   Moreover, our resolution of this issue is dispositive;  hence, we do not discuss the merits of plaintiff's first contention.

Plaintiff contends the trial court erred in calculating the statute of limitations.   Relying on Gomez v. Valley View Sanitorium (1978) 87 Cal.App.3d 507, 151 Cal.Rptr. 97, plaintiff contends the interplay of sections 356 and 364 with section 340.5 operated to extend the statute of limitations 180 days after June 14, 1984, the date he served his notice of intent to sue defendants.   He argues his complaint was timely even if the commencement of the statutory period is calculated from the earliest date asserted by the defendants.   To understand plaintiff's argument, one must examine the language of these three statutes.

Section 340.5 provides:  “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․”  (Emphasis added.)   The limitation period begins to run on the date of plaintiff's “injury.”  “Injury” means the date a plaintiff discovers the harm caused by the alleged negligence, which is not necessarily the date of the negligent act or omission.  (Larcher v. Wanless (1976) 18 Cal.3d 646, 655–656, 135 Cal.Rptr. 75, 557 P.2d 507.)

Section 364 provides in relevant part:  “(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.  [¶] (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․”  (Emphasis added.)

Section 356 provides:  “When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.”  (Emphasis added.)

The question of the correct interplay of these three statutes in cases in which notice of intent to sue is given within the last 90 days of the one year period has been answered differently in three appellate districts.   The issue has not been resolved by our Supreme Court.

 A review of those cases discussing the applicability of section 356 to medical malpractice suits discloses that all appellate courts have concluded the 90–day notice requirement of section 364, subdivision (a) is a “statutory prohibition” against filing suit within the meaning of section 356.  (See Grimm v. Thayer (1987) 188 Cal.App.3d 866, 233 Cal.Rptr. 687;  Gilbertson v. Osman (1986) 185 Cal.App.3d 308, 229 Cal.Rptr. 627;  Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 222 Cal.Rptr. 713;  Paxton v. Chapman General Hospital, Inc. (1986) 186 Cal.App.3d 110, 230 Cal.Rptr. 355;  Banfield v. Sierra View Local Dist. Hospital (1981) 124 Cal.App.3d 444, 177 Cal.Rptr. 290;  Braham v. Sorenson (1981) 119 Cal.App.3d 367, 174 Cal.Rptr. 39;  Gomez v. Valley View Sanitorium, supra, 87 Cal.App.3d 507, 151 Cal.Rptr. 97.)  “The rationale is that the statute does not run during the time the plaintiff is legally prevented from taking action to protect his rights;  ․” (Banfield v. Sierra View Local Dist. Hospital, supra, 124 Cal.App.3d at p. 456, 177 Cal.Rptr. 290.)   Thus, “the time of the continuance of the ․ prohibition is not part of the time limited for the commencement of the action.”  (§ 356) 3

We agree that the “tolling” provisions of section 356 apply to medical malpractice suits subject to the notice requirement.   A contrary finding would create situations in which plaintiffs who gave notice during the last 90 days of the one year period would be precluded from filing suit at all.   This is so because while section 364, subdivision (d) extends the statute of limitations 90 days from the date notice is filed for those who give notice within the last 90 days of the one year period, nevertheless, the plaintiff is precluded from filing suit during those same 90 days pursuant to section 364, subdivision (a).   The only way to give effect to subdivision (d) is to apply some kind of tolling provisions.

 However, because the 90–day extension of subdivision (d) is coextensive with the 90–day prohibition against filing suit set out in subdivision (a), the tolling provisions of section 356 offer no relief to the plaintiff who files notice within the last 90 days of the one year period if the tolling runs concurrently with the extension.   Only a few decisions squarely address this problem.4  A careful review of the opinions discloses the courts have devised two interpretations of the statutes in question.   One line of cases holds the applicable limitations period is always one year plus 90 days from the date of injury;  the other concludes the applicable limitations period varies but is the sum of one year plus 180 days from the date of service of notice of intention to commence the action.   After examining these two theories, we are persuaded that the latter is the correct interpretation.

The first case to discuss this problem was Gomez v. Valley View Sanitorium, supra, 87 Cal.App.3d 507, 151 Cal.Rptr. 97.   In Gomez, the cause of action accrued on February 5, 1976;  plaintiffs served their notice of intent to sue on November 26, 1976, and filed their complaint on March 28, 1977, which was more than 90 days after the service of notice but within a total period of one year plus 90 days.5  The trial court sustained a general demurrer to the complaint and dismissed the action without leave to amend on the ground the statute of limitations had run.   Division One of the Fourth District reversed.   It found plaintiff's complaint timely, reasoning:  “Because ․ section 364 prohibits the commencement of an action until 90 days have expired ․, that 90–day period must be excluded when calculating the applicable statute of limitations.   Where section 364 also operates to extend the period of limitations because notice is served within 90 days of the expiration of the statute, the plaintiff is entitled to that extension as well as the tolling of the statute during the 90 days plaintiff is prohibited from filing his action.”  (Emphasis added.)  (Id., at p. 510, 151 Cal.Rptr. 97.)   The court concluded a plaintiff filing notice within the last 90 days of the one year statute is entitled to file a complaint within 180 days from the date of the notice of intent to sue.   Under this theory, the actual statute of limitations varies depending upon the date the plaintiff gives notice of intent to sue, with the maximum limitations period calculated at 1 year plus 180 days.

The Second District Court of Appeal disagreed with Gomez in Braham v. Sorenson, supra, 119 Cal.App.3d 367, 174 Cal.Rptr. 39.   In Braham, the court held that section 364, subdivision (a) and section 356 together add 90 days to the basic statute of limitations for a total limitations period of 1 year plus 90 days, regardless of whether the notice was filed before or within the last 90 days of the one year period.   Thus the court found the complaint, which was filed 119 days after service of the notice of intent to sue and one year 112 days from the date of injury, was properly dismissed.   The court also pointed out that in Gomez, the plaintiff had filed her complaint within 1 year plus 90 days after the cause of action had accrued.   It therefore characterized as dictum the statement in Gomez that plaintiff was entitled to a 90–day extension as well as the tolling.  (Id., at p. 372, 174 Cal.Rptr. 39.)   Noting the language of subdivision (a) “is somewhat incongruous because it does not explain how much time after the extension the plaintiff still has within which to file the complaint,” the court concluded “this incongruity, ․ cannot be utilized to distort the policy of the statute of limitations nor the application of the section itself.”   (Ibid.)

In Banfield v. Sierra View Local Dist. Hospital, supra, 124 Cal.App.3d 444, 177 Cal.Rptr. 290, the Fifth District followed Braham and held a complaint filed 148 days after service of the notice and 103 days after the one year period was properly dismissed.   The court found section 364, subdivision (a) and section 356 produced a one year plus 90–day period within which a plaintiff must file an action in all instances.   It calculated the limitations period as follows:  “[U]pon giving the notice required by section 364, subdivision (a), the running of the 1–year basic statute is suspended under section 356 for the 90–day period the plaintiff is prohibited from filing suit.   When the 90 days expire, the basic 1–year statute commences to run again, thereby giving the plaintiff the time remaining under the basic statute within which to file his action.   Thus, plaintiff has 90 days from the date of his notice of intent plus the unexpired balance of the 1–year limitation period within which to file suit.”  (Id., at p. 459, 177 Cal.Rptr. 290.)   The majority rejected the dissenter's argument that subdivision (d) was rendered superfluous under this interpretation.   It concluded that the “Legislature enacted subdivision (d) to make clear that a plaintiff who is prohibited from filing suit against a health care provider for 90 days, will receive at least an additional 90 days within which to file suit.”  (Id., at p. 460, 177 Cal.Rptr. 290.)

The Banfield court reasoned that allowing a plaintiff an additional 180 days from the service of notice “engenders mischief in 2 ways.   First, it rewards the dilatory plaintiff and punishes the diligent plaintiff.   For example, a plaintiff who waits until the last day of the one year statute before giving his notice of intent to sue, would receive an additional 180 days beyond the basic one year statute within which to file suit.   However, a plaintiff who gives his notice of intent to sue at least 90 days before the running of the one year statute would receive only an additional 90 days beyond the one year period within which to file suit.   Such an incongruous and unfair result could not possibly have been intended by the Legislature․ [¶]  Second, [the Gomez analysis] produces a variable limitation period within which to file suit insofar as a plaintiff who gives notice within 90 days of the running of the 1 year statute.”  (Id., at p. 461, 177 Cal.Rptr. 290.)

However, in Estrella v. Brandt (9th Cir.1982) 682 F.2d 814, the Ninth Circuit, applying California law in a diversity suit, agreed with Gomez.   In Estrella, the cause of action accrued sometime prior to June 11, 1977;  plaintiff served notice of intent to sue on April 21, 1980, and filed her complaint on September 9, 1980.   Reviewing Braham and Banfield, the Ninth Circuit held “the Gomez construction is the only one that breathes life into section 364(d).”  (Id., at p. 818.)   Agreeing with the dissent in Banfield, the court reasoned the Braham construction of the statutes rendered superfluous subdivision (d) of section 364.   It concluded plaintiff had 3 years from the date of injury plus 180 days from the date of notice to file the complaint.6

The Estrella case was followed in Paxton v. Chapman General Hospital, Inc., supra, 186 Cal.App.3d 110, 230 Cal.Rptr. 355.   In Paxton, the cause of action accrued January 26, 1982.   Plaintiff filed a notice of intent to sue on December 29, 1982, and filed her complaint on April 29, 1983.   The trial court granted defendant's motion for summary judgment on the ground the action was barred because it was filed more than 90 days after the one year period.   Division Three of the Fourth District reversed, holding plaintiff had one year from the accrual of her cause of action plus 180 days measured from the notice of intent to sue to file her complaint.   The court stated:  “[W]e choose to follow the reasoning in Estrella and Gomez and the dissent in Banfield.   We agree with the courts in those cases that a plain reading of section 364, subdivision (d), requires an additional 90 days from the date of the notice of intent if the plaintiff files that notice within the last 90 days of the 1–year period.   Under this interpretation, a plaintiff alleging medical malpractice always has at least 90 days from the expiration of the time excluded by section 356 to file a complaint.   While this result does produce a variable limitations period, we perceive no unfairness to any party in its application.”  (Id., at p. 116, 230 Cal.Rptr. 355.)

After reviewing the conflicting authorities, we conclude the proper interpretation is that a plaintiff who files a notice of intent to sue during the last 90 days of the one year period is entitled to 180 days from the date of the notice to file the complaint.   Starting with the premise that the tolling provisions of section 356 apply, we must determine whether the 90–day tolling is concurrent with or consecutive to the 90–day extension of section 364 subdivision (d).   We cannot conclude the tolling is concurrent with the 90–day extension of subdivision (d) because such an interpretation results in the situation where a plaintiff who files notice within the last 90 days of the one year period can never file suit because the 90–day extension expires at the same moment the tolling provisions end.   Moreover, as noted in Estrella, “[I]f every plaintiff is entitled only to the 90–day tolling period when notice is required, there is no reason to examine the date notice is served—the date specified in subdivision (d)․   We are not persuaded that the California Supreme Court would adopt a construction of these statutes that renders one of them meaningless.”  (Estrella, supra, at p. 818.)

Section 364, subdivision (a) makes it clear that a plaintiff contemplating the commencement of an action for medical malpractice is required to give the defendant notice of his intention to sue and is prohibited from commencing the action until 90 days have expired after the date the notice is given.  Section 364, subdivision (d) makes it clear that when the notice is given within the last 90 days of the one year period “the time for the commencement of the action shall be extended 90 days from the service of the notice.”  (Emphasis added.)   Thus, in effect, in cases which fall within the operation of section 364, subdivision (d), the period of limitations is not just one year from the date plaintiff discovers or through the use of reasonable diligence should have discovered his injury;  it is one year from that date plus 90 days measured from the date notice of intention to sue is given.   This extension, by itself, is not sufficient to enable the plaintiff to file a timely suit since he is prohibited by section 364, subdivision (a), from filing it during those same 90 days.   But section 356 supplies the answer to this problem.   Since “the commencement of the action is stayed by ․ statutory prohibition, the time of the continuance of the prohibition is not part of the time limited for the commencement of the action.”  (§ 356.)   Eliminating this time from the calculation we conclude that a plaintiff who gives notice of intention to sue a health care provider within the last 90 days of the one year period provided by section 340.5 has 180 days measured from the date of his notice within which to file a timely suit.

In the present case, plaintiff filed his notice of intent to sue on June 14, 1984, within the last 90 days of the one year limit.   He filed his complaint on October 9, 1984, one year 108 days after the June 23, 1983 appendectomy and one year 99 days after the July 2, 1983 surgery.   Applying the above analysis to these dates, we conclude plaintiff was entitled to 90 days suspension of the running of the statute plus a 90–day extension pursuant to section 364, subdivision (d).   Plaintiff had 180 days from June 14, 1984, in which to file his complaint.   The limitations period expired on December 11, 1984.   The complaint was therefore timely filed;  the trial court erred in concluding otherwise.

DISPOSITION

The summary judgment is reversed.

FOOTNOTES

FOOTNOTE.  

1.   The “one year period” referred to throughout this opinion is the “one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, ․” (Code of Civ.Proc. § 340.5.)

2.   All statutory references are to the Code of Civil Procedure unless otherwise specified.

3.   At oral argument, counsel for Dr. Becker urged the 90–day requirement of subdivision (a) is not a “statutory prohibition” within the meaning of section 356 because section 365 ostensibly authorizes commencement of suit despite the language of section 364, subdivision (a).   Section 365 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.”   We find the argument unpersuasive.   No other court has found section 356 inapplicable.   Moreover, such an interpretation would force attorneys who filed the notice of intent to sue during the last 90 days of the one year period to file the complaint despite the language of subdivision (a), thereby subjecting them to discipline.   Such an interpretation is patently unreasonable.

4.   Three other cases cited by the parties are not apposite.   In Hilburger v. Madsen, supra, 177 Cal.App.3d 45, 222 Cal.Rptr. 713, plaintiffs filed their notice prior to the last 90 days of the one year period and the provisions of section 364, subdivision (d) were inapplicable.   In Grimm v. Thayer, supra, 188 Cal.App.3d 866, 233 Cal.Rptr. 687 and Gilbertson v. Osman, supra, 185 Cal.App.3d 308, 229 Cal.Rptr. 627, the plaintiffs filed their notices during the last 90 days of the statutory period but also filed their complaints within one year plus 90 days from the date of injury.   Hence neither court addressed the problem involved in the case at bench.

5.   The 90–day period expired on February 24, 1977.

6.   The court in Estrella was concerned with the alternative three year limitations period provided in section 340.5.  (682 F.2d at 816.)

DEEGAN, Associate Justice.* FN* Assigned by the Chief Justice.

SIMS, Acting P.J., and MARLER, J., concur.