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Court of Appeal, Second District, Division 2, California.

George STEKETEE, Plaintiff and Appellant, v. LINTZ, WILLIAMS & ROTHBERG, a Professional Corporation, Hal W. Williams, Jr., Stanley M. Lintz, Defendants and Respondents.

Civ. 69626.

Decided: February 24, 1984

Royce & Seaman by George R. Royce, John M. Inferrera, Los Angeles, for plaintiff and appellant. Lewis, D'Amato, Brisbois & Bisgaard by Roy M. Brisbois, Mark E. Goodfriend, Los Angeles, for defendants and respondents.

Plaintiff George Steketee, instituted this action for legal malpractice alleging that defendants Lintz, Williams, & Rothberg, et al., attorneys at law, had failed timely to file an action for medical malpractice on his behalf.   He appeals from a judgment in favor of defendants.   We reverse.

Plaintiff and defendants stipulated to the following facts.   On September 25, 1976, plaintiff, age 16, sustained certain injuries to his foot in a fall from a ladder.   The physicians whom he consulted, in September and October of 1976, failed to diagnose a fracture in his foot.   The facts indicating that the doctors had been negligent were discovered by plaintiff in August or September of 1977, at a time when he was 17 years of age.   On October 30, 1977, plaintiff reached his 18th birthday.

In January of 1978, plaintiff, then 18 years old, retained defendants to represent him in connection with any claims arising out of the treatment of his injury.   In January of 1979, after a year of apparent inaction, plaintiff sought legal advice elsewhere.

Plaintiff's new counsel concluded that the statute of limitations on the medical malpractice action had run and thus this legal malpractice action against former counsel was instituted.

The sole issue presented is whether plaintiff's new counsel correctly assessed the statute of limitations problem in concluding that the statute had run while plaintiff was represented by defendants or whether defendants correctly concluded that the statute of limitations had not run prior to the termination of their employment.

In 1975, the Legislature, in an effort to limit the exposure of health care providers to long delayed latent claims of negligence, amended Code of Civil Procedure section 340.5.   The basic thrust of the amendment was, with certain narrow and precise exceptions,1 to create an absolute maximum three year period of limitation for a cause of action against a health provider, regardless of any delay in discovery of the facts giving rise thereto, while retaining the basic one year statute of limitations applicable to all personal injury actions.

That statute now reads in pertinent part:

“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.)

In addressing the situation of a minor, however, the Legislature has presented us with a rather enigmatic provision, which the interpretation of which is at the heart of the controversy now engaging our attention.

That provision in Code of Civil Procedure section 340.5 reads in pertinent part as follows:  “Actions by a minor shall be commenced within three years from the date of the alleged wrongful act ․”  (Emphasis added.) 2

In Kite v. Campbell (1983) 142 Cal.App.3d 793, 191 Cal.Rptr. 363.   Division Five of this court, after analyzing the competing goals of protecting minors while at the same time limiting the exposure of health care providers discerned a legislative intent to create a separate statutes of limitation, one for minors and one for adults.   Further, though not entirely clear, Kite seems to conclude that the Legislature intended to favor a minor with a full three years from the date of the wrongful act which period could be indefinitely extended by the reasonable failure of his or her parent or guardian to discover the injury and its negligent cause.

In reaching that result, the court imported into the statute the common law tolling doctrine, reasoning that the three year limitations period for minors was “ ‘extended ‘by any legal ground not specifically excluded in the section itself.’  [Citation].  And one such legal ground is the common law delayed discovery rule in malpractice cases.'  Segura v. Brundage (1979) 91 Cal.App.3d 19, 27, 153 Cal.Rptr. 777;  Myers v. Stevenson (1954) 125 Cal.App.2d 399, 270 P.2d 885.)”  (Id. at p. 802.)

The Kite opinion thus evidenced concern for the minor by attempting to ameliorate the effect on the minor victim of medical malpractice of the Legislature's circumscribing the protection afforded to other minor tort victims by Code of Civil Procedure section 352.3

In Kite, unlike the case presently before us, the cause of action accrued and an action was filed before the plaintiff reached majority.   The court therefore did not address the precise issue which now engages our attention, to wit, the effect of the minor attaining majority after the accrual of a cause of action but before the filing of an action.

In the case at bench, the trial court concluded that since the plaintiff's cause of action accrued while he was a minor he had three years after such accrual in which to file his action.   Using the date of the “wrongful act,” to wit, September of 1976, as the starting point, the trial court found that the three year statute of limitations did not run on plaintiff's action until September of 1979, some 8 to 9 months after defendants' employment had been terminated.4

In Code of Civil Procedure section 340.5, the phrase “actions by a minor shall be commenced” indicates to us that the limitation periods which follow are applicable only to actions commenced during plaintiff's minority.   The Kite decision thus has no direct application here.   After a plaintiff reaches majority the reason for affording greater liberality to minors disappears.

 We conclude that when the action is not commenced before plaintiff has reached majority, even on a cause of action which accrued prior thereto, the one year period available to knowledgeable adults governs.

 Here the trial court erroneously attempted to extend the limiting statute for minors into a period of plaintiff's majority.   We hold that plaintiff, having full knowledge of the existence of a cause of action, had one year from his 18th birthday in October 1977, or until October 1978 to file his complaint.   Hence the action was barred during the course of defendants' representation of plaintiff.

Neither the provisions of Code of Civil Procedure section 352 applicable to “actions by a minor” nor the common law tolling doctrine invoked by Kite can serve to extend the time available to an adult plaintiff.   Under the circumstances of the case at bench, we are not required to determine whether these provisions can ever operate to shorten the time available to an adult plaintiff.

The judgment is reversed.


1.   Those exceptions are (1) 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.

2.   The period is tolled indefinitely when there is fraud or collusion between the parent or guardian and the health care provider.

3.   Code of Civil Procedure section 352 provides in part:  “(a) If a person entitled to bring an action, mentioned in Chapter three of this title, be, at the time the cause of action accrued, ․: 1.   Under the age of majority;  ․ the time of such disability is not a part of the time limited for the commencement of the action.”

4.   It would appear that application of the Kite rationale to the trial court's reasoning would have extended the period yet another year because of the delay in discovery.We, however, read Kite as confining the principles enumerated therein to actions filed during plaintiff's minority, as indicated by its reference to nondiscovery by the “parent or guardian”.

COMPTON, Acting Presiding Justice.

BEACH and GATES, JJ., concur.