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Court of Appeal, Second District, Division 3, California.

Miller E. LAFAYETTE, Plaintiff and Appellant, v. Joseph J. ROSE et al., Defendants and Respondents.

Civ. 56994.

Decided: May 05, 1981

A. Tod Hindin, Beverly Hills, and Perry M. Forrester, Los Angeles, for plaintiff and appellant. Keenan & Tobin, David Lowe and Edward J. Horowitz, Los Angeles, for defendant and respondent County of Los Angeles. Culliton & Hunter, Los Angeles, Horvitz & Greines, Ellis J. Horvitz and Barry R. Levy, Encino, for defendants and respondents Zimmer U. S. A., Inc. and K. S. Bartow Co., Inc. Allen L. Michel, Santa Monica, for defendant and respondent Joseph J. Rose.

Plaintiff, Miller E. Lafayette, appeals from a summary judgment rendered in favor of Joseph J. Rose, an attorney who is one of several defendants, and from judgments of dismissal rendered in favor of defendants, County of Los Angeles (County), Zimmer U. S. A. Inc. (Zimmer), and K. S. Bartow Co., (Bartow). These judgments of dismissal were rendered following the sustaining, without leave to amend, of the respective general demurrers of these defendants to plaintiff's second amended complaint on the ground that the applicable periods of limitation had run against plaintiff.

The appeals, as construed by us, lie.1 (Code Civ.Proc., §§ 437c, 904.1, subd. (a).) For reasons that follow we intend to reverse the summary judgment and one of the judgments of dismissal, but to affirm the other judgment of dismissal. This is an opinion on rehearing.


On October 21, 1975, plaintiff was operated on at Harbor General Hospital, a county-owned and operated facility by a resident orthopedic surgeon, to remove from his left thigh bone a Street rod implanted there the previous year to take care of a fracture of the bone. In the course of the operation the tip of an osteotome used to cut bone broke off in the thigh bone and was left there. Additionally apparently some injury was done to the sciatic nerve on the left side.

Immediately following this surgery plaintiff noticed paralysis in his left foot and that he was suffering from a condition known as “foot drop.” Plaintiff returned to Harbor General Hospital where he was advised to “wait and see” if the injured nerve would recover. The recovery, however, did not occur, although plaintiff was apparently under the continuous care of county physicians between October 1975 and April 1976. On April 27, 1976, a second operation was performed on plaintiff at Harbor General Hospital to remove the aforementioned piece of osteotome from plaintiff's body. This operation however, failed to correct plaintiff's paralysis and county medical personnel then apparently advised plaintiff that there was nothing further that they could do for him.

The aforementioned allegedly defective osteotome, which broke during the first operation, had been designed and manufactured by defendant Zimmer and had been supplied to the Harbor General Hospital by defendant Bartow.

Prior to December 16, 1975, plaintiff suspected that his drop foot condition may have been caused by the County's negligence in the aforementioned removal of the Street rod on October 21, 1975 at Harbor General Hospital.2 Therefore, on December 16, 1975, he employed the aforementioned defendant, Florence Vaughn Jackson, an attorney, to prosecute his claim for medical malpractice against the County. Defendant Jackson, however, failed to present the required claim against the County to the County. (Gov.Code, § 911.2.)3

A few days before July 30, 1976, plaintiff telephoned the first-mentioned defendant, Rose, also an attorney, on the recommendation of defendant Jackson. Rose interviewed plaintiff in his office on July 30, 1976. By means of this interview Rose learned of the two surgeries upon plaintiff and their results. At the conclusion of the interview plaintiff employed Rose to represent him in his medical malpractice claim against the County.

On August 4, 1976, Rose presented to the Board of Supervisors of the County a written claim from plaintiff for the injury he had sustained in the aforementioned operations of October 21, 1975 and April 27, 1976 at Harbor General Hospital. Thereafter Rose apparently did nothing of substance in the case until plaintiff discharged him about January 12, 1977. Rose did advise his successor, as counsel for plaintiff, in writing of the advisability of his initiating late claim proceedings, as suggested in the County's letter to Rose of December 17, 1976, rejecting plaintiff's claim as untimely, and his filing suit against the County within six months after its expected denial of the late claim. The County's letter of rejection of plaintiff's claim did not, however, contain the express warning specified in section 913, subdivision (b), of this six month's period within which to sue it.4

On August 22, 1977, plaintiff began this litigation by filing a complaint for damages for legal malpractice against defendants Jackson and Rose. On October 20, 1977, at the suggestion of Rose's counsel, plaintiff expanded this litigation by filing a first amended complaint for damages for both medical and legal malpractice and for product liability as well in which he added as defendants the County, Zimmer and Bartow. Plaintiff filed his final pleading in this case, the second amended complaint on September 5, 1978.5

Meanwhile defendant Rose had moved for a summary judgment. The motion was heard and granted without prejudice in July 1978. The summary judgment, here under appeal, though, does not contain this limitation. As already partially mentioned, defendant County then generally demurred to plaintiff's second amended complaint on the ground that various applicable periods of limitation had run before its filing. The trial court thereafter sustained this demurrer without leave to amend on September 28, 1978. Zimmer and Bartow then demurred on essentially the same ground and the trial court similarly sustained their general demurrer without leave to amend. These three appeals by plaintiff then ensued and have been consolidated by this court.


1. The judgment of dismissal as to Zimmer and Bartow was proper.

As already noted, plaintiff was perceptibly injured during the first operation upon him on October 21, 1975 at Harbor General Hospital. He apparently suspected almost immediately that his injury may have been caused by the negligence of the county surgeon during the operation. Consequently, on December 16, 1975, he employed attorney Jackson to prosecute for him a claim of medical malpractice against the county. He, however, did not then sue Zimmer, the manufacturer, and Bartow, the supplier of the allegedly defective osteotome, which had broken off in his thigh bone during this operation because he did not learn of this event until October 4, 1977, when his present counsel examined the relevant hospital records.

In fact, as previously related, he did not bring suit against defendants Zimmer and Bartow on the theory of product liability until October 20, 1977. By this time such an action against these defendants was barred. The time within which this type of an action may be commenced is specified to be one year in Code of Civil Procedure, section 340, subdivision (3), and the year runs from the date of injury. (See G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25, 122 Cal.Rptr. 218; Sevilla v. Stearns—Roger, Inc. (1980) 101 Cal.App.3d 608, 610-611, 161 Cal.Rptr. 700.)

Plaintiff contends that this is not the law when a plaintiff makes a belated discovery of the cause of his injury, as he did here on October 4, 1977. Unfortunately for plaintiff, the discovery exception which he seeks to invoke is not applicable in this case. It obtains only when the injury occurs “without perceptible trauma.” (See G. D. Searle & Co. v. Superior Court, supra, 49 Cal.App.3d at p. 25, 122 Cal.Rptr. 218; Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 297, 146 Cal.Rptr. 271.) Such was not the case here and the ordinary rule applies that a plaintiff's ignorance of either his cause of action or the identity of the wrongdoer does not toll the running of the statutory period of limitation. (See Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 187, 98 Cal.Rptr. 837, 491 P.2d 421.) Accordingly, the judgment of dismissal of Zimmer and Bartow was proper.

2. The judgment of dismissal of the County was improper.

Plaintiff contends that since the County in rejecting his claim for medical malpractice failed to give him the written warning that he had but six months to sue it, required by the aforementioned section 913, subdivision (b), he thereby had, pursuant to section 945.6, subdivision (a)(2), two years from the date of the accrual of his cause of action against the County within which to sue it.

Section 901 provides that for the purpose of computing the time limits prescribed by (among other specified sections) section 945.6, the date of the accrual of a cause of action, to which a claim relates, is the date upon which such cause of action would have been deemed to have accrued within the meaning of the statute of limitation which would have been applicable had there been no claim requirement. In this case such otherwise applicable statutory period of limitation is that specified by Code of Civil Procedure section 340.5, which provides in relevant part that in an action for injury against a health care provider, based upon such person's alleged professional negligence, the time within which such action must be commenced shall be three years after the date of injury or one year after the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, the injury, whichever occurs first.6

It seems to us that under the circumstances of this case plaintiff's cause of action for medical malpractice under Code of Civil Procedure section 340.5 against the County accrued not earlier than the date of his injury—that is, not earlier than the date of the first operation on his thigh bone here involved, namely, October 21, 1975. Because the injury he then sustained was, as already noted, immediately perceptible to him and therefore discoverable by him, his cause of action may have accrued at that time.7 He, therefore, had two years, from at least October 21, 1975, within which to sue the County for medical malpractice and he complied with this deadline by filing his first amended complaint, adding the County as a defendant with appropriate charging allegations on October 20, 1977.

The County responds that plaintiff in suing it for medical malpractice must comply not only with the applicable two-year period of limitation specified in the aforementioned section 945.6, subdivision (a)(2), of the Tort Claims Act, but also with the already-stated applicable one-year period of limitation provided in Code of Civil Procedure section 340.5. We think not. Code of Civil Procedure section 342 provides that an action against a public entity, upon a cause of action for which a claim is required to be presented, must be commenced within the time provided in section 945.6. Furthermore, Code of Civil Procedure section 312, the introductory section to the title setting forth the various general statutes of limitation, provides, in effect, that the periods of limitation specified in the title shall apply to all civil actions without exception except where “in special cases, a different limitation is prescribed by statute.” By virtue of the just-mentioned Code of Civil Procedure section 342, section 945.6 is such a special statute of limitation in all cases where the precondition to suit against a public entity is the presentation of a claim.

That such exclusivity was the legislative intent is clear from the comment to section 945.6 in its original form of the Law Revision Commission which drafted it for the Legislature. This comment says: “The normal statute of limitations will not apply” to actions subject to the Tort Claims Act. Since section 945.6 in its original form was adopted by the Legislature without change in any respect material to the issue here under discussion, the quoted portion of the Commission's comment may be regarded as an authoritative statement of the Legislature's intent in this regard. (See Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249-250, 66 Cal.Rptr. 20, 437 P.2d 508, cf. Arellano v. Moreno (1973) 33 Cal.App.3d 877, 884, 109 Cal.Rptr. 421.)8

Our Supreme Court expressly recognized in Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 607, fn. 8, 68 Cal.Rptr. 297, 440 P.2d 497, that the Tort Claims Act provides “a limitation period different from that for a similar cause of action against a private individual.” In Brown v. Huntington Beach, Etc. Sch. Dist. (1971) 15 Cal.App.3d 640, 642-644, 646-647, 93 Cal.Rptr. 417, the San Diego Division of this statewide court held that the period of limitation specified in section 946.6, subdivision (f), prevailed over the otherwise there applicable general statute of limitation, i. e., Code of Civil Procedure, section 340, subdivision (3). Accordingly, we hold that the otherwise here applicable general statute of limitation (Code Civ. Proc., § 340.5) does not apply in this case9 and that since plaintiff sued the County within the period specified by the exclusively governing special statute of limitation (§ 945.6, subd. (a)(2)), the trial court's dismissal of the County from this litigation was improper.

3. The summary judgment in favor of defendant Rose must be reversed.

Under Code of Civil Procedure, section 437c, a defendant who moves for a summary judgment is entitled to such a judgment only if (1) the action has no merit; and (2) no triable issue as to any material fact exists. From what we have already written one can easily see that these two preconditions for a summary judgment were not met in this case by defendant Rose. He was plaintiff's attorney from July 30, 1976 to about January 12, 1977. During this nearly 5 1/212 months he apparently did nothing of substance on plaintiff's behalf except to present a claim against the County for medical malpractice on August 4, 1976. A careful attorney, faced with the problem we have delineated regarding the time when plaintiff's cause of action for alleged medical malpractice against the County actually accrued, would have on August 4, 1976 not only presented a claim therefor to the County, as Rose did, but would have also simultaneously applied to the County for permission to present a late claim and if that were denied he would have then sought exemption by judicial order from the claim presentation requirement altogether. Once the claim and application had been made, he then would have immediately investigated the circumstances of both operations by, among other things, examining the originals or copies of the relevant hospital records. Apparently defendant Rose did no investigation at all and one result of this inactivity on the part of Rose is that he did not learn of plaintiff's possible case against Zimmer and Bartow for damages for product liability before the applicable period of limitation for suing them expired on October 21, 1976.

We do not hold that Rose's apparent professional inactivity, which we have just recounted, constituted legal malpractice. We do hold, instead, on the basis of the various declarations and the excerpt from Rose's incomplete deposition, which were before the trial court on Rose's motion, that plaintiff's action against him for legal malpractice may well have merit and that triable issues of material fact do exist therein, such as when plaintiff's cause of action against the County for alleged medical malpractice actually accrued.


The judgment of dismissal under appeal in favor of defendants, Zimmer U. S. A. Inc. and K. S. Bartow Co., Inc. is affirmed. That in favor of the County of Los Angeles is reversed. The summary judgment in favor of defendant, Joseph J. Rose, is likewise reversed.


1.  Liberally construed, plaintiff apparently attempted to appeal from two orders sustaining the demurrers of these defendants without leave to amend. Such orders are nonappealable. (Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 651, 150 Cal.Rptr. 242, 586 P.2d 556.) Judgments of dismissal, however, are and we will, therefore, treat these appeals of plaintiff as being from the judgments of dismissal.There is one remaining nonfictitious defendant in this action, namely, Florence Vaughn Jackson, an attorney against whom the action is apparently proceeding in the trial court.A general demurrer is a proper vehicle by which to raise the bar of a statute of limitation. (See Bell v. Bank of California (1908) 153 Cal. 234, 245, 94 P. 889.)

2.  Plaintiff, in his original complaint, alleged that prior to December 16, 1975 he “discovered” the negligent cause of his injury. In his first amended complaint he replaced the word “discovered” with the word “suspected.” In his final pleading, his second amended complaint, he omitted alleging his state of mind in this respect. But facts one alleged cannot be withdrawn from consideration by filing an amended pleading omitting them without offering an explanation for such omission. (See Neal v. Bank of America (1949) 93 Cal.App.2d 678, 682, 209 P.2d 825; Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 836, 69 Cal.Rptr. 321, 442 P.2d 377; Zappas v. King Williams Press, Inc., (1970) 10 Cal.App.3d 768, 775, 89 Cal.Rptr. 307.)

3.  All further statutory references herein are to the Government Code unless otherwise indicated.

4.  It contained instead a warning that plaintiff should apply to the County for permission to file a late claim. The problem with the County's issuance of this particular nonstatutory warning to plaintiff in its letter dated December 17, 1976, is that such an application must be made within one year of the accrual of this cause of action (§ 911.4, subd. (b)) and if plaintiff's claim of August 4, 1976 was untimely (see § 911.2), as the County asserted, it was because his cause of action accrued on either October 21, 1975 or December 16, 1975. Accrual on either of these dates would make the suggested application untimely.The County's tardiness in this respect estops it to assert plaintiff's noncompliance with the late claim procedures it suggested. (See Fredricksen v. City of Lakewood (1971) 6 Cal.3d 353, 357, 359.)

5.  Plaintiff purported to file a second amended complaint about a month earlier, but the trial court rejected this pleading since he had no permission for its filing. At that time, though, the trial court sustained demurrers of defendants to the first amended complaint with leave to amend.

6.  In passing we note that the various tolling provisions of this statute apply expressly only to the three-year period of limitation specified therein.

7.  We do not decide, however, when the cause of action of plaintiff against the County for medical malpractice actually accrued. There is considerable doubt as to when this event occurred because of the ambiguity of plaintiff's conduct between the operations. During this period, on the one hand, he retained an attorney to prosecute his claim of medical malpractice against the County—a fact which itself has been held to cause a cause of action to accrue. (See Wells Fargo Bank v. Superior Court (1977) 74 Cal.App.3d 890, 896, 141 Cal.Rptr. 836.) On the other hand, during this period plaintiff apparently acquiesced in the advice of County medical personnel (who apparently continued to treat him) that he should wait and see whether his injury was permanent. This course of conduct may have prevented the accrual of his cause of action before such conduct terminated with the second operation. (See Enfield v. Hunt (1979) 91 Cal.App.3d 417, 422-425, 154 Cal.Rptr. 146.)

8.  This commission comment was submitted to the Governor and the Legislature as a part of the Commission's recommendation for the enactment of the legislation it then proposed. (See 4 Cal. Law Revision Com. Rep. (1963) pp. 1003, 1043.) A Commission comment to Code of Civil Procedure section 342, simultaneously proposed by the Commission, identifies it as “the statute of limitations applicable to actions upon claims against public entities.” (Id. at p. 1058.) Finally, the recommendation itself stated: “The general statutes of limitation would thus have no application to actions against public entities upon causes of action for which claims are required to be filed.” (Id. at p. 1014.)

9.  The fact that section 815, subdivision (b), of the Tort Claims Act states that the liability of a public entity under the Act “is subject to any defenses that would be available to the public entity if it were a private person” does not require a contrary conclusion. This very general language cannot prevail over all of the specific evidence supporting our position.

COBEY, Associate Justice.

KLEIN, P. J., and POTTER, J., concur.

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