KLUGMAN v. GARDNER (1987)

OPINION

Evelyn Klugman appeals the trial court's granting of Dr. Ronald Gardner's Code of Civil Procedure section 583, subdivision (a) motion to dismiss.¹  We hold, because Gardner received a section 364 notice, he had actual knowledge of the lawsuit and reverse.

FACTS

Klugman was a dental patient of Gardner who treated her for various problems beginning in the summer of 1980 and continuing until February 1981.   Unhappy with the services rendered, she threatened, in four letters in March and April, to file a civil suit if her bridgework was not forwarded to another dentist.

In June, Klugman's attorney wrote to Gardner informing him a malpractice suit would be filed.   Gardner notified his insurance carrier but neither he nor the carrier took any further action.

The complaint was filed on February 11, 1982.   However, Gardner was not served until February 7, 1985.   He answered on March 11 and, two weeks later, noticed a motion to dismiss pursuant to section 583, subdivision (a).   Klugman filed her at issue memorandum on April 24.   A status conference was scheduled by the court on June 15.   Both sides commenced discovery.   But the court, on June 24, granted Gardner's section 583, subdivision (a) motion and a judgment for dismissal was entered.

DISCUSSION

Klugman concedes she did not serve her complaint until almost three years after it was filed.   On appeal she makes no excuses for that delay but instead relies on Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 213 Cal.Rptr. 712 and Troupe v. Courtney (1985) 169 Cal.App.3d 930, 215 Cal.Rptr. 703.²  She urges “[t]he drastic sanction of dismissal should be reserved for more egregious circumstances.”  (Hurtado v. Statewide Home Loan Co., supra, 167 Cal.App.3d at p. 1032, 213 Cal.Rptr. 712.)   She asks us to remember the “purpose of dismissals for lack of diligent prosecution lies in preventing injustices to unsuspecting defendants who may not be able to adequately defend themselves.  [Citation.]”  (Troupe v. Courtney, supra, 169 Cal.App.3d at p. 934, 215 Cal.Rptr. 703.)   Here, argues Klugman, the defendant was neither unsuspecting nor unable to adequately defend himself.   Both he and his insurance carrier were on notice.   We agree.

We held, in Luti v. Graco, Inc. (1985) 170 Cal.App.3d 228, 215 Cal.Rptr. 902, prejudice can be inferred when the time between filing and service is protracted.   Although Gardner was not served until almost three years after filing, he was nevertheless aware of the lawsuit.   He not only had the opportunity to defend but, by notifying the insurance company, did in fact take steps to do so.

“An unjustified delay in serving the summons and complaint is accorded less appellate tolerance than one in which service is timely but the case is not diligently pursued.”  (Luti v. Graco, Inc., supra, at p. 233, 215 Cal.Rptr. 902.)   This is true because “where the complaint has been properly served, the defendant is on notice of a need to look into the matter.”  (Id., at p. 236, 215 Cal.Rptr. 902.)

Section 364 provides in pertinent 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.”   The statute allows the parties to commence settlement negotiations.   In so doing, Gardner and his insurance carrier had an opportunity to protect against the very things about which they now complain.³

Klugman relies on Hilburger v. Madsen (1986) 177 Cal.App.3d 45, 222 Cal.Rptr. 713.   In Hilburger, the plaintiffs brought a malpractice suit against several defendants.   A letter was sent in May 1981 advising some of the defendants of the possibility of suit.   A second letter dated August 1981 stated it was a “90–day notice pursuant to law.”   The complaint was filed in November, but not served until 1984.   The Court of Appeal reversed the granting of a section 583, subdivision (a) motion.

The Hilburger court did not specifically rely on the defendants' receipt of a section 364 notice.   But the court did observe “both [defendants were] fully informed of the suit at an early date․”  (Id., at p. 50, 222 Cal.Rptr. 713.)   The court also noted neither defendant “had suffered prejudice because the insurance carrier had been informed of the suit and involved in investigation six weeks subsequent to the complaint being filed.”  (Id., at pp. 48–49, 222 Cal.Rptr. 713.)

Similarly, Gardner's insurance carrier could have commenced investigation.   Its choice not to do so cannot be used to deny Klugman her day in court.  “Even if the plaintiff is unable to justify untoward delay in prosecution [after notice], the court may not infer prejudice in order to grant a motion for dismissal under Code of Civil Procedure section 583, subdivision (a) because the means of avoiding it were presumably within the defendant's reach.”  (Luti v. Graco, Inc., supra, 170 Cal.App.3d 228, 236, 215 Cal.Rptr. 902.)

“When the trial court has ruled on [a section 583, subdivision (a) ] motion, ‘ “unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” ’  [Citations.]  ‘ “The burden is on the party complaining to establish an abuse of discretion․” ’  [Citations.]”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58.)

On these facts, the burden has been sustained and we conclude the trial court abused its discretion.

Judgment reversed;  appellant to recover her costs on appeal.

FOOTNOTES

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

2.   Her counsel, in the trial court, alleged a law clerk had been assigned the case but failed to perform.   Additionally, the firm moved to a different address and the partnership reorganized.

3.   He argues, he did not commence discovery because he was not served.   As a result, memories dimmed, physical evidence was not preserved, and changes in Klugman's dental work, unattributable to him, could have taken place.

SONENSHINE, Associate Justice.

TROTTER, P.J., and WALLIN, J., concur.