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

Willie Mae ROBINSON and James Robinson, Plaintiffs and Appellants, v. KAISER FOUNDATION HOSPITALS, Southern California Permanente Medical Group, and Kaiser Foundation Health Plan, Inc., Defendants and Respondents.

No. B036320.

Decided: May 17, 1990

Seaman & Dempsey and Sandra Tyson, Los Angeles, for plaintiffs and appellants. Thelen, Marrin, Johnson & Bridges and David F. Berry, Los Angeles, for defendants and respondents.

Plaintiffs James Robinson and Willie Mae Robinson appeal from summary judgment in favor of defendants Kaiser Foundation Hospitals, Southern California Permanente Medical Group, and Kaiser Foundation Health Plan, Inc., in appellants' wrongful death action.   The trial court concluded appellants' action was time barred because it was commenced one year and one day after the death of appellants' son.

We hold the trial court erred in granting summary judgment because the one-year statute of limitations was extended 90 days when appellants sent their Code of Civil Procedure section 364 notice of intent to sue.1  The judgment is therefore reversed.


On February 18, 1984, Willie Mae Robinson brought her one-year-old son, Kenneth, to the emergency room at Kaiser Permanente Medical Center in Los Angeles.   Kenneth was suffering from vomiting, diarrhea, an elevated temperature, and inability to eat.   Mrs. Robinson was present while Kenneth was examined by the emergency room physician, Dr. Rizk.   Mrs. Robinson felt the examination was improper and requested that Dr. Rizk call Kenneth's regular pediatrician, Dr. Karelitz, for assistance.   Dr. Rizk allegedly became upset and refused to contact Dr. Karelitz.   Dr. Rizk diagnosed a left ear infection and mild gastroenteritis and sent Kenneth home with a prescription for an antibiotic.

Kenneth's condition grew increasingly worse over the next 24 hours.   He suffered from continual vomiting, a yellowish stool and was unable to keep his medication down.   In addition, he became lethargic, grew limp, was unable to sit up, and his temperature rose dramatically.   As a result, Mrs. Robinson returned with Kenneth the following day, February 19, 1984, and informed Dr. Rizk that Kenneth's condition was deteriorating.   Dr. Rizk then examined Kenneth, took blood after some difficulty in locating a vein, and performed a lumbar puncture.   During the course of the examination and treatment Kenneth's condition worsened.

Mrs. Robinson was present during the entire examination.   She heard two male nurses tell Dr. Rizk several times he should have called for another doctor.   These nurses also allegedly told Dr. Rizk within Mrs. Robinson's hearing that they felt Dr. Rizk did not know what he was doing.   Dr. Rizk allegedly became angry and argumentative and refused to call another pediatrician.

While Mrs. Robinson watched from the doorway, Kenneth suffered a respiratory failure and died.   Following the respiratory failure, a third nurse allegedly informed Mrs. Robinson that Kenneth would have lived if another pediatrician had been in charge of his care.   The nurse allegedly indicated to Mrs. Robinson that Dr. Rizk had wasted too much time trying to insert an I.V. instead of sending for additional support.

Three days after Kenneth's death appellants consulted their attorney.   At no time between Kenneth's death and retention of counsel were appellants provided with additional medical information regarding the cause of death.   The death certificate and medical records were available on April 12, 1984, and May 4, 1984, respectively.

On November 19, 1984, appellants' attorney sent a 90–day “Notice of Intent to Sue” letter to respondents pursuant to section 364.   Their action for wrongful death was filed on February 20, 1985, one year and one day after Kenneth's death.

Respondents moved for summary judgment arguing section 340.5's statute of limitations barred the action.   The trial court granted respondents' motion for summary judgment and entry of judgment was filed on May 26, 1988.   Appellants' motion for a new trial was denied.   This appeal follows.



Appellants argue section 340.5's statute of limitations did not commence running on February 19 because they were not aware of the cause of Kenneth's death at the time.2  Rather, it was not until they obtained the death certificate and medical records that appellants were in possession of sufficient data to determine the negligent cause of Kenneth's death.   Appellants are partially correct.

We begin our analysis with a brief discussion of the standard of review.   Summary judgment is a severe remedy which is to be granted with caution.   (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266, 241 Cal.Rptr. 706.)   Where a defendant moves for summary judgment, his motion will only be granted if his declarations and admissible evidence either establish a complete defense to the plaintiff's action or conclusively negate a necessary element of the plaintiff's case and demonstrate, under any cause of action, no material factual issue requires resolution by trial.   (DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1395, 262 Cal.Rptr. 370.)   In examining the sufficiency of declarations filed in connection with a summary judgment motion, the declarations of a moving party are strictly construed and those opposing the motion are liberally construed.  (Sheffield v. Eli Lilly & Co. (1983) 144 Cal.App.3d 583, 611, 192 Cal.Rptr. 870.)

 Section 340.5's one-year period commences once a plaintiff knows, or by reasonable diligence should have known, that he was harmed through professional negligence.  (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923;  Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896, 218 Cal.Rptr. 313, 705 P.2d 886.)   A plaintiff is charged with presumptive knowledge of the negligent injury, and the statute commences, once he has “ ‘ “notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation․” ’ ”  (Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 896–897, 218 Cal.Rptr. 313, 705 P.2d 886, original italics.)   In other words, when a plaintiff's “reasonably founded suspicions [have been aroused],” and the plaintiff has “become alerted to the necessity for investigation and pursuit of her remedies ․,” the one-year period begins.  (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102, 132 Cal.Rptr. 657, 553 P.2d 1129.)

 Applying those principles here, we must conclude the trial court properly found the one-year statute of limitations commenced on February 19, 1984, as to Mrs. Robinson.   The evidence was uncontroverted medical personnel informed Mrs. Robinson both before and immediately following Kenneth's death the treating physician had failed to properly care for her son and the death would not have occurred had another pediatrician been involved.

The fact Mrs. Robinson's suspicions were aroused is confirmed by the fact she sought legal advice three days later.   There is no evidence in the record Mrs. Robinson obtained any additional information during these intervening three days which would have spurred her to seek legal advice.   Thus, the evidence conclusively shows Mrs. Robinson's suspicions were aroused and she was put on inquiry that some wrongdoing had occurred during the treatment on February 19, 1984.   Accordingly, the statute of limitations accrued that day for her.

 The same cannot be said for Mr. Robinson.   As appellants correctly argue, respondents presented no evidence to demonstrate he was put on notice of any possible wrongdoing until he visited the attorneys on February 23, 1987.

 In a wrongful death action, each heir has a personal and separate cause of action against which the applicable statute of limitations will run.  (Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 692, 36 Cal.Rptr. 321, 388 P.2d 353;  Andersen v. Barton Memorial Hospital, Inc. (1985) 166 Cal.App.3d 678, 681, 212 Cal.Rptr. 626.)   The fact that the statute of limitations might have barred Mrs. Robinson's cause of action has no effect on Mr. Robinson's claim.

In moving for summary judgment, it was respondents' burden to conclusively establish when the statute of limitations accrued as to Mr. Robinson.   (DeRosa v. Transamerica Title Ins. Co., supra, 213 Cal.App.3d at p. 1395, 262 Cal.Rptr. 370.)   They did not.   Indeed, their motion and separate statement of undisputed facts focus solely upon Mrs. Robinson and what she knew.

Respondents now point to a clinic chart prepared by Dr. Rizk the day Kenneth died as evidence Mr. Robinson had notice of wrongdoing that same day.   The chart states:  “Permission to perform an autopsy was asked from the parents, who basically approved, but understandably were too upset to sign any papers today.”   Ignoring the obvious hearsay problem and the absence of any evidence indicating Mr. Robinson learned everything his wife did that day, there is a triable issue of fact concerning whether Mr. Robinson was at the hospital that day.

Respondents' separate statement of undisputed facts states Mrs. Robinson brought Kenneth to the hospital and was present during his treatment on February 19.   The supporting evidence makes no mention of Mr. Robinson.   Indeed, the evidence indicates only Mrs. Robinson was at the hospital.   Thus, at the very least a triable issue exists concerning what Mr. Robinson learned and when.

However, as we explain below, this issue is somewhat academic since neither parent's cause of action is barred by the statute of limitations.   Once appellants' attorney sent a notice of intent to sue, the statute of limitations was tolled 90 days.   Thus, the limitations period did not expire until May 20, 1985, well after the complaint was filed.


 Appellants contend their suit is not barred by the statute of limitations because the statute of limitations was extended 90 days as a matter of law.   We agree.

The statutory time within which appellants were required to file their cause of action is governed by the interplay of several statutes.   As a condition precedent to commencing a medical malpractice action, a plaintiff is required to send a notice of intent to sue at least 90 days prior to commencing his action.  Section 364, subdivision (a) provides:  “[n]o action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least ninety days' prior notice of the intention to commence the action.”  (Code Civ.Proc., § 364, subd. (a).)

Section 364, subdivision (a) has been construed as a statutory prohibition since it prohibits a plaintiff from commencing his action for 90 days after sending a notice of intent to sue.   Accordingly, section 364 triggers the tolling provision of section 356 which provides:  “[w]hen 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.”  (Code Civ.Proc., § 356.)

The effect of section 356 on the medical malpractice statute of limitations was explained by this court in Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 247 Cal.Rptr. 723.   There, Presiding Justice Lillie wrote, “[b]ecause section 364 requires a 90–day notice before commencement of an action based on professional negligence of a health care provider, it serves to stay the suit and triggers section 356 which mandates that the 90–day period specified in section 364 be excluded from calculation of the time limited.”  (Id. at p. 1463, 247 Cal.Rptr. 723, citations omitted.)

This construction has been followed by all appellate courts considering this issue.  (See, e.g., Paxton v. Chapman General Hospital, Inc. (1986) 186 Cal.App.3d 110, 230 Cal.Rptr. 355 [Fourth Dist., Div. Three];  Gilbertson v. Osman (1986) 185 Cal.App.3d 308, 229 Cal.Rptr. 627 [Fourth Dist., Div. Two];  Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 222 Cal.Rptr. 713 [Second Dist., Div. Five];  Estrella v. Brandt (9th Cir.1982) 682 F.2d 814;  Banfield v. Sierra View Local Dist. Hospital (1981) 124 Cal.App.3d 444, 177 Cal.Rptr. 290 [Fifth Dist.];  Braham v. Sorenson (1981) 119 Cal.App.3d 367, 174 Cal.Rptr. 39 [Second Dist., Div. Two];  Gomez v. Valley View Sanitorium (1978) 87 Cal.App.3d 507, 151 Cal.Rptr. 97 [Fourth Dist., Div. One].) 3

Respondents assert section 356 does not apply unless the plaintiff sends his notice of intent to sue within the last 90 days of the statute of limitations.   This is incorrect.   When a notice of intent to sue is sent is irrelevant to whether section 356 applies.

In Hilburger v. Madsen, supra, 177 Cal.App.3d at page 52, 222 Cal.Rptr. 713, the Court of Appeal held it was unnecessary to determine which of two letters the plaintiff sent, one falling within the last 90 days of the statute of limitations and the other outside the last 90 days, constituted a notice of intent to sue letter for purposes of section 356 and 340.5.  (Ibid.)   The court stated, “[b]ecause section 364, subdivision (a), requires a 90–day notice before commencement of an action, it serves to stay the suit and triggers section 356.  Section 356 mandates that the 90–day notice period required by section 364, subdivision (a), be excluded from calculation of the time limit.   These 90 days are ‘tacked on’ to the one-year statutory time.”  (Id., citations omitted.)

Thus, as the court in Hilburger emphasized, section 356 is triggered by complying with section 364, subdivision (a) and sending a notice of intent to sue letter regardless of when it was sent.4  (See also Banfield v. Sierra View Local Dist. Hospital, supra, 124 Cal.App.3d at page 459, 177 Cal.Rptr. 290 [“If the plaintiff gives his notice of intent to sue the defendant more than 90 days before the end of the 1–year period, the tolling provision of section 356, in conjunction with section 364, subdivision (a), effectively produce a 1–year and 90–day limitation period within which plaintiff must file his action,” italics added];  Gilbertson v. Osman, supra, 185 Cal.App.3d at p. 317, 229 Cal.Rptr. 627 [“Section 364 should be read together with section 356, which suspends the running of a limitations period during any time in which a plaintiff is prevented by statute from commencing an action,” italics added];  Paxton v. Chapman General Hospital, Inc., supra, 186 Cal.App.3d at page 112, 230 Cal.Rptr. 355 [“Because that section stays the filing of the action, it triggers section 356, which excludes the period of any statutory prohibition to commence an action from the limitations period”], italics added.)

Respondents also assert that because a court is not divested of jurisdiction if the plaintiff fails to comply with section 364, the statute cannot be considered a statutory prohibition.   We disagree.

Section 365 provides:  “[f]ailure 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.”  (Code Civ.Proc., § 365.)   We find this contention unavailing.

Thus, even though a trial court is invested with jurisdiction over actions filed in violation of section 364, an attorney who files such actions does so in peril of State Bar discipline.   Accordingly, under respondents' analysis, a plaintiff's attorney is placed in the untenable position of choosing whether to fully represent his client or risk State Bar sanction.   We cannot perceive the Legislature intended to create such a Hobson's choice.  (Cf. Lewis v. Superior Court (1985) 175 Cal.App.3d 366, 376, 220 Cal.Rptr. 594 [“The Legislature has ․ manifested a special interest in protecting plaintiff clients against the running of statutes of limitation where their retained counsel has become, for virtually any reason, incapable of performing the professional responsibility of effectively representing the client's claim by timely commencing action thereon”].)

In sum, the sending of the notice of intent to sue letter triggers section 356 and eliminates this 90–day period from the time limited for commencement of the action.   Therefore, appellants' claim was not time barred because the sending of the notice of intent to sue letter automatically extended the statute of limitations 90 days to May 20, 1985.

 Respondents contend there is no competent evidence the notice of intent letter was ever sent.   This is incorrect.   In support of the opposition to the motion for summary judgment, appellants' counsel filed a declaration stating she “sent an Intent to Sue Letter.”   In addition, an authenticated copy of the letter dated November 19, 1984, was included with the declaration.

Respondents argue this declaration is not sufficient because the attorney lacked personal knowledge.   Since the attorney stated she sent the letter and provided a copy of the letter indicating she was the signatory, there is sufficient evidence of personal knowledge.   While the declaration might have contained more explicit details concerning how the letter was sent, for purposes of summary judgment we liberally construe opposing declarations.   (Corwin v. Los Angeles Service Bureau, Inc. (1971) 4 Cal.3d 842, 851, 94 Cal.Rptr. 785, 484 P.2d 953;  Eaton v. Conolly Pacific, Inc. (1982) 134 Cal.App.3d 825, 828, 184 Cal.Rptr. 852.)   Thus, for these purposes, the letter was sufficient.

 Finally, respondents argue the letter was not properly served in compliance with the proof of service requirements set forth in section 1013a.   This too is incorrect.

As a preliminary matter, respondents did not raise this issue below.   Although respondents argued there was no competent evidence the letter was sent, they did not contend the letter was otherwise deficient because it was not properly served in accord with the Code of Civil Procedure.   The failure to object on this basis waives the error.  (Otsuka v. Balangue (1949) 92 Cal.App.2d 788, 792, 208 P.2d 65;  see Biddle v. Superior Court (1985) 170 Cal.App.3d 135, 138, 215 Cal.Rptr. 848;  Nanny v. Ruby Lighting Corp. (1952) 108 Cal.App.2d 856, 859–860, 239 P.2d 885.)

Regardless, the argument is meritless.   Contrary to respondents' contention, section 364, subdivision (c) does not require a plaintiff to serve the notice of intent to sue pursuant to section 1010 et seq.   Instead, the statute provides:  “The notice may be served in the manner prescribed in Chapter 5 (commencing with Section 101) of Title 14 of Part 2.”  (Italics added.)   The term “may” indicates this subdivision is discretionary, not mandatory.  (In re Richard E. (1978) 21 Cal.3d 349, 354, 146 Cal.Rptr. 604, 579 P.2d 495 [“The ordinary import of ‘may’ is a grant of discretion”];  REA Enterprises v. California Coastal Zone Conservation Com. (1975) 52 Cal.App.3d 596, 606, 125 Cal.Rptr. 201;  cf. Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 703, 263 Cal.Rptr. 119, 780 P.2d 349 [letter from plaintiffs' attorney on firm stationery which was mailed to hospital constituted a section 364 notice of intent to sue].)

This conclusion is confirmed by the construction of an analogous statute concerning the Tort Claims Act.  Government Code section 915.2, which permits a claim to be sent by mail, provides:  “Proof of mailing may be made in the manner prescribed by Section 1013a of the Code of Civil Procedure.”

Since Government Code section 915.2 does not require the claimant to comply with section 1013a, the claimant may send his claim without a proof of service.  (See Call v. Los Angeles County General Hospital–USC Medical Center (1978) 77 Cal.App.3d 911, 916–917, 143 Cal.Rptr. 845.)   The same is true here.   While it may be the better practice to comply with the provisions of section 1010 et seq., the statute does not mandate compliance.   Thus, appellants' section 364 notice cannot be attacked for failing to comply with section 1010 et seq.


The judgment is reversed.   Appellants are to recover their costs on appeal.


1.   All subsequent statutory references are to the Code of Civil Procedure unless we specify otherwise.

2.   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.   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.”

3.   Based on the unanimity of this authority, the appellants were undoubtedly reasonable in believing the statute of limitations was extended 90 days.

4.   Section 364, subdivision (d) provides:  “If the notice is served within ninety days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended ninety days from the service of the notice” does not apply.   Since the section 364 notice here was sent 93 days prior to the expiration of the statutory period, we are not required to consider whether appellants are entitled to an additional 90 days for a total of 180 days.  (Compare Paxton v. Chapman General Hospital, Inc., supra, 186 Cal.App.3d at page 115, 230 Cal.Rptr. 355 [180–day extension];  with Gomez v. Valley View Sanitorium, supra, 87 Cal.App.3d at p. 510, 151 Cal.Rptr. 97 [90–day extension].)  We note the issue of the 180–day extension is currently before the Supreme Court in Brodehl v. Becker (1988) 204 Cal.App.3d 926, 251 Cal.Rptr. 577, review granted.

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.

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