GETTY III v. HOFFMAN LaROCHE INC (1987)

This is an appeal from a judgment in favor of the defendants after their demurrer to the complaint was sustained without leave to amend.   We reverse.

FACTS AND PROCEEDINGS BELOW

Jean Paul Getty III, an incompetent person, through his conservators, seeks damages from Hoffmann-LaRoche, Inc. and Dr. Martin S. Goldfarb for injuries resulting from their negligence.¹  The original complaint naming defendant health care providers was filed on March 30, 1984.   The complaint the court dismissed ² alleges Mr. Getty was discovered in a coma on the morning of April 5, 1981.   The coma was induced by a combination of Placidyl, Valium, Dalmane and Methadone.   At the time, Mr. Getty was under the care of Dr. Goldfarb who prescribed the Placidyl, Valium and Dalmane.   Hoffmann-LaRoche is the manufacturer of Valium and Dalmane.   The complaint alleges Dr. Goldfarb was negligent in prescribing these drugs and Hoffmann-LaRoche was negligent in the testing, designing, manufacturing, labeling and warning with respect to Valium and Dalmane.

Because the complaint was filed more than one year after the injury, the conservators included allegations regarding discovery of the negligent cause of Mr. Getty's injuries in anticipation of demurrers based on the statutes of limitations for general negligence (Code Civ.Proc., § 340, subd. (3)) and medical malpractice (Code Civ.Proc., § 340.5).

The complaint alleges Mr. Getty was rendered paralyzed, blind, and virtually unable to speak and suffered an undetermined memory loss as the result of defendants' negligence.   As a consequence of those injuries the superior court adjudged him lacking in legal capacity and established a conservatorship for his protection.   Mr. Getty's mother and brother were appointed conservators.

Mr. Getty has not had the capacity at any time since April 5, 1981, (the date he was found in a coma) to discover his injuries or their wrongful cause.   Mr. Getty's conservators were unaware of the wrongful cause of his injuries until November 1983.   Mr. Getty was not able to provide any information and there were no witnesses to his ingestion of drugs prior to the coma.   His mother, later appointed a conservator, began investigating the cause of his injuries upon learning he had been found in a coma.   It was not until November 1983 that she obtained a medical opinion the injuries resulted from medical negligence.   The complaint acknowledges Mr. Getty's mother read a report in July 1981 which stated ingestion of Placidyl, Valium and Methadone was the “likely” cause of Mr. Getty's injuries and she had agreed the report was “essentially accurate.”   But, the complaint alleges, in agreeing the report was “essentially accurate” Ms. Getty did not intend to confirm the report's speculation as to the cause of the injuries.

ISSUE

 The original complaint was filed within three years of the date of injury as required by the medical malpractice statute of limitations.  (Code Civ.Proc., § 340.5.)   The issue in this case is whether the complaint was filed within one year of discovery of the negligent cause of the injury as required by the medical malpractice statute of limitations (ibid.) and the general negligence statute of limitations.  (Code Civ.Proc., § 340, subd. (3).)  In this regard, the trial court was entitled to take judicial notice of declarations and other evidence admitted at Mr. Getty's conservatorship hearing.  (5 Witkin, Cal.Procedure, (1985) Pleading, § 896, p. 337.)

 For purposes of this appeal, we presume the allegations of the complaint are true.  (Lopez v. Southern California Rapid Transit Dist. (1985) 40 Cal.3d 780, 784, 221 Cal.Rptr. 840, 710 P.2d 907.)

DISCUSSION

Dr. Goldfarb's demurrer rests on Code of Civil Procedure,3 section 340.5 which provides in relevant part, “the time for the commencement of [a medical malpractice] action shall be ․ one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered the injury․”  Hoffmann-LaRoche, in turn, relies on the one-year statute of limitations on negligence actions contained in section 340, subdivision (3).

 Both statutes are subject to the “rule of discovery.”   That is, the time for filing the action does not begin to run until the plaintiff knows, or by the exercise of reasonable diligence, should have discovered the cause of the injury.   In section 340.5 the rule is explicit.  (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759, 199 Cal.Rptr. 816.)   In section 340, subdivision (3) the rule is implicit.  (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25, 122 Cal.Rptr. 218.)

 Goldfarb and Hoffmann-LaRoche both argue the conservator's discovery triggers the one-year prescriptive periods in sections 340 and 340.5.⁴  This is not the law in the State of California.   Here the conservator's knowledge of the negligent cause of the conservatee's injury is not imputed to the conservatee for purposes of the “discovery rule” in statutes of limitation.  (Gottesman v. Simon (1959) 169 Cal.App.2d 494, 502–503, 337 P.2d 906.)

In Gottesman, a husband and wife sued for injuries sustained in an automobile accident.   The complaint was not filed until more than a year after the accident.   The complaint alleged the delay in filing was due to the husband's disability by reason of mental incapacity, incompetency and insanity from the time of the accident, September 4, 1954, to October 1, 1955.   Defendant raised the statute of limitations as a defense.   The trial court conducted a separate trial on the statute of limitations defense before trying the other issues in the case.   After hearing evidence on the husband's claimed insanity and its duration the court made a finding of fact the husband had regained his sanity more than a year before the complaint was filed and concluded as a matter of law the husband's action was not commenced within the statutory time period.   Judgment was entered against the husband.

The facts at the trial of the statute of limitations issue showed about a month after the accident the wife was appointed guardian of her husband's estate on the ground his brain injury had left him incompetent to care for himself and his property.   An order for restoration was not obtained until October 1955.   In reversing the judgment against the husband the Court of Appeal first held it was error to consider any evidence of insanity other than evidence of the guardianship adjudication, such adjudication being conclusive as to a plaintiff's insanity for purposes of Code of Civil Procedure section 352 which provides the period of such a disability is not part of the time for the commencement of an action.  (169 Cal.App.2d at pp. 499–502, 337 P.2d 906.)

The holding in Gottesman the guardianship adjudication was conclusive as to the husband's insanity did not, itself, require reversal of the judgment against the husband.   If, as defendants contend in the case now before us, the knowledge of the guardian is imputed to the ward, the statute of limitations would have run despite the husband's insanity because the wife was appointed his guardian a year and six months before the lawsuit was filed and she was aware of the facts regarding the accident.   Addressing this issue, the court held “Since the right of action vests in the ward, it is not affected by the failure of the guardian to sue within the prescribed period.”  (Id., at pp. 502–503, 337 P.2d 906.)   Although the guardian clearly had sufficient knowledge, at the time of her appointment, to constitute “discovery” of the cause of her ward's injury, the court “squarely held that the statute does not run against the ward during guardianship․”  (3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 490, p. 519.)

This rule is supported by cases from other jurisdictions which consistently hold the appointment of a guardian for an incompetent person does not start the period of limitations running.  (See, e.g., Paavola v. St. Joseph Hospital Corp. (1982) 119 Mich.App. 10, 325 N.W.2d 609, 610–611;  Smith v. City of Reno (D.Nev.1984) 580 F.Supp. 591, 592;  Pardy v. United States (S.D.Ill.1982) 548 F.Supp. 682, 684;  Anno:  Appointment of Guardian for Incompetent ․ as Affecting Running of Statute of Limitations Against Ward, 86 A.L.R.2d 965.)   In addition, there are numerous cases supporting the proposition knowledge possessed by a parent is not imputed to a minor for purposes of the limitations period of sections 340 and 340.5.  (See, e.g., Aronson v. Bank of America (1941) 42 Cal.App.2d 710, 720, 109 P.2d 1001;  Epstein v. Frank (1981) 125 Cal.App.3d 111, 122, 177 Cal.Rptr. 831.)   Indeed, if the rule were otherwise, a premium would be placed on being an orphan.⁵

There are at least three sound reasons for not imputing knowledge of the guardian to the ward.   First, a contrary rule would conflict with the tolling provision in section 352, subdivision (a)(2) which specifies the time during which a person is “insane” is not a part of the time limit for commencing an action.   There is no exception in the statute for cases where a conservator has been appointed for the “insane” person.   Second, while the appointment of a conservator may remove the practical incapacity to sue it does not remove the difficulties of the incompetent in giving information, testifying and participating in the litigation.  (Aronson v. Bank of America, supra, 42 Cal.App.2d at p. 720, 109 P.2d 1001;  Wolf v. United States (S.D.N.Y.1935) 10 F.Supp. 899, 900.)   Third, a statute of limitations “ ‘is intended to run against those who are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof.’ ”  (Smith v. City of Reno, supra, 580 F.Supp. at p. 592, quoting Neff v. New York Life Ins. Co. (1947) 30 Cal.2d 165, 169, 180 P.2d 900.)   Assuming the allegations of the complaint regarding Mr. Getty's health are true, he could not have pursued his rights in the manner contemplated by Neff even if he desired to do so.   The fact someone else might have pursued those rights on his behalf but failed to do so would not alter the balance of equities between Mr. Getty and the defendants.   It would be fundamentally unfair to allow a defendant to inflict disabling mental injuries on the plaintiff then use that disability as a shield to escape liability.   Accepting as true the allegations in the complaint, it is clear Mr. Getty's injuries prevented him from discovering the facts about how those injuries occurred.

Dr. Goldfarb argues the tolling provision for insanity does not apply to the discovery time limit in section 340.5.  (See Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, 320, 172 Cal.Rptr. 594.)   Our decision is not based on the application of the insanity tolling provision to the one-year discovery time limit.   It is based on the complaint's allegations Mr. Getty never discovered the negligent cause of his injuries and our holding that discovery by the conservator cannot be imputed to Mr. Getty to start the one-year period running.   In any event we do not interpret Fogarty to hold the tolling period for insanity under section 352 is inapplicable to the one-year discovery limitation period in section 340.5.

 Fogarty holds the outside three-year limitation period in section 340.5 is not subject to the tolling provisions of section 352.   (Id., at p. 320, 172 Cal.Rptr. 594.)   Because the complaint in Fogarty was barred by the three-year limitation period the court did not address the issue whether the one-year discovery time limit is subject to the tolling provisions of section 352.   Indeed the language of section 340.5 and the reasoning in Fogarty actually support the conclusion the tolling provisions of section 352 do apply to the one-year discovery time limit.   The Fogarty holding is based on the Legislature's specification of only three exceptions to the three-year outside time limit.  “In no event shall the time for commencement of legal action exceed three years unless tolled by any of the following:  [fraud, concealment or presence of a foreign body].”  (Id., at p. 319, 172 Cal.Rptr. 594;  italics in original.)   Thus, the grounds for tolling set forth in section 340.5 are exclusive only as to the outside three-year limitation period.   The one-year discovery time limit remains subject to the general tolling provisions of section 352.  (See Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 601–607, 68 Cal.Rptr. 297, 440 P.2d 497;  Bledstein v. Superior Court (1984) 162 Cal.App.3d 152, 158–160, 208 Cal.Rptr. 428.)

 Hoffmann-LaRoche contends the conservator's discovery of the negligent cause of the conservatee's injury should end the tolling of the statute of limitations under section 352.   It argues section 352 is intended to protect those helpless to avail themselves of the judicial system.   An insane person who has a conservator does not fall within the class of those helpless to avail themselves of the courts and, therefore, is not within the purview of the statute.   It points out that subsequent to the Gottesman decision the Probate Code was amended authorizing a conservator to sue for the benefit of the conservatee.  (Prob. Code, § 2462.)   Additionally it argues allowing an insane person's conservator an open-ended time in which to sue is unfair to the potential defendant.   It deprives the defendant of repose and protection against stale claims without conferring any necessary benefit on the insane person.

Similar arguments were raised and rejected in Gottesman, supra, 169 Cal.App.2d at pages 501–502, 337 P.2d 906 and in the cases cited, supra, at pages 51–52.   The 1979 amendments to the Probate Code do not affect the holding in Gottesman.  Section 2462 merely restated existing law.  (15 Cal. Law Revision Com.Rep. (1980) at pp. 732–733.)   In addition, we note the “problem” of an open-ended discovery doctrine is not new.  (See Larcher v. Wanless (1976) 18 Cal.3d 646, 655, 135 Cal.Rptr. 75, 557 P.2d 507.)   The legislative solution is to impose an absolute, “drop-dead,” date by which time the action must be filed.  (Cf. § 340.5 and Hills v. Aronsohn, supra, 152 Cal.App.3d at p. 758, 199 Cal.Rptr. 816;  § 340.6;  and Bledstein v. Superior Court, supra, 162 Cal.App.3d at pp. 156–157, 208 Cal.Rptr. 428.)   The Legislature could impose a “drop-dead” date for general negligence actions as it has in the medical malpractice field but has not seen fit to do so.   We note, however, the conservators brought this action within three years of the negligent act.   This time span falls within the three-year period adopted for medical malpractice and any reasonable absolute limitation period likely to be enacted.  (Cf. Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 193, 98 Cal.Rptr. 837, 491 P.2d 421.)   Furthermore, there is no evidence the conservators have attempted to use Mr. Getty's incapacity merely as an excuse to deprive the defendants of the ability to mount an adequate defense in this case.   Accordingly, we are not confronted with the problem of fashioning a remedy for the abuse imagined by the defendants.  (Cf. Gottesman, supra, 169 Cal.App.2d at p. 502, 337 P.2d 906.)

DISPOSITION

The judgment is reversed.   Appellants are awarded costs.

I respectfully dissent.

I disagree with the holding of my colleagues based on the authority of Gottesman v. Simon (1959), 169 Cal.App.2d 494, 337 P.2d 906, that the discovery by plaintiff's conservator of the negligent cause of his injuries cannot be imputed to plaintiff for purposes of invoking the “discovery rule” which starts the running of the one-year period of the applicable statutes of limitation.

In Gottesman the facts were as follows.   On April 9, 1956 the plaintiffs, husband and wife, filed a complaint for personal injuries sustained in an automobile accident which occurred September 4, 1954.   The complaint alleged that the delay in filing the action was excusable due to the disability of plaintiff husband by reason of mental incapacity, incompetency and insanity from the time of the accident to October 1, 1955.  (Code Civ.Proc., § 352.) ¹  The complaint did not mention any guardianship proceeding.   In his answer defendant raised the defense of the statute of limitations (Code Civ.Proc., § 340, subd. (3)).  The trial court ordered a separate trial of this defense before the trial of the other issues.   After hearing evidence on the subject of plaintiff's claimed insanity and its duration, the court made its finding that plaintiff had regained his sanity prior to April 8, 1955, and held that plaintiff's action was not commenced within the statutory limitation.   Judgment was entered in favor of defendant and against plaintiffs.   (Gottesman v. Simon, supra, 169 Cal.App.2d at pp. 495–496, 337 P.2d 906.)   The court noted that the evidence disclosed plaintiff wife was appointed guardian of the person and estate of her husband on October 8, 1954, on the ground he was unconscious as a result of the accident, due to brain and physical injuries and was incompetent to manage and care for himself or his property;  an order of restoration was not obtained until October 1955.   (Id., at p. 496, 337 P.2d 906.)   In reversing the judgment against plaintiff husband the court held it was error to receive over objection, evidence of plaintiff's insanity after admission of evidence of the guardianship adjudication, such adjudication being conclusive as to plaintiff's incapacity for the purpose of determining whether he was insane within the meaning of Code of Civil Procedure section 352, which provides that the period of such disability is not part of the time limited for the commencement of an action.  (Id., at pp. 499–502, 337 P.2d 906.)   After so holding, the court added the following language upon which the majority relies:  “Since the right of action vests in the ward, it is not affected by the failure of the guardian to sue within the prescribed time.”  Gottesman, supra, 169 Cal.App.2d at pp. 502–503, 337 P.2d 906.)

I cannot agree with the conclusion of the majority, based upon no lesser authority than B.E. Witkin (3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 490, p. 519), that by the foregoing language the Gottesman court “ ‘squarely held that the statute does not run against the ward during guardianship,’ ” thereby refusing to impute to the ward the guardian's knowledge of the negligent cause of the ward's injury.   It is true that where two independent reasons are given for a decision neither one is to be considered mere dictum;  the ruling on both grounds is the judgment of the court and each is of equal validity.  (Gilgert v. Stockton Port District (1936) 7 Cal.2d 384, 389, 60 P.2d 847;  Gunn v. State Board of Equalization (1954) 123 Cal.App.2d 283, 288, 266 P.2d 840.)   However, that rule is inapplicable to Gottesman, for the court there held that the guardianship proceeding was conclusive in determining the duration of plaintiff's insanity for the purpose of applying the tolling provision of Code of Civil Procedure, section 352.   That was the basis of the court's decision.   Inasmuch as an order in the guardianship proceeding restoring plaintiff to competency was not obtained until October 1955, the one-year period of limitations was tolled until that time with the result that plaintiff husband's action, commenced April 9, 1956 by him personally and not through his guardian, was timely.   Accordingly, the court's general observation—“[s]ince the right of action vests in the ward, it is not affected by the failure of the guardian to sue within the prescribed time”—was unnecessary to the decision.   It was dictum and, as such, has no force as a precedent.  (United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 834, 209 Cal.Rptr. 16.)

Probate Code section 2462 authorized the persons appointed as plaintiff's conservators to commence the within action for his benefit to recover damages for his alleged injuries.   The fifth amended complaint alleges that at no time since April 5, 1981 (the date plaintiff was found in a coma) has plaintiff had the capacity to discover his injuries or their wrongful cause.   However, the complaint acknowledges that in July 1981 plaintiff's mother, one of his conservators, read a report which stated that plaintiff's ingestion of Placidyl, Valium and Methadone was the “likely” cause of his injuries.

Where the pathological effect of personal injury occurs without perceptible trauma and the victim is blamelessly ignorant of the cause of injury, the one-year statute of limitations governing actions for personal injury (Code Civ.Proc., § 340, subd. (3)) begins to run when the person knows or, by the exercise of reasonable diligence, should have discovered the cause of injury.   (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 663, 150 Cal.Rptr. 384.)   A medical malpractice action must be commenced within three years after the injury or one year “after the plaintiff discovers, or through the use of reasonable diligence, should have discovered, the injury” and its negligent cause, whichever occurs first.  (Code Civ.Proc., § 340.5;  Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 759, 199 Cal.Rptr. 816.)   A like result should obtain where, as here, an action is commenced by the conservators of a mentally incompetent person for his benefit.   While plaintiff is the real party in interest and the conservators merely appear for him in this action (Code Civ.Proc., § 372;  Siegal v. Superior Court (1962) 203 Cal.App.2d 22, 24, 21 Cal.Rptr. 348), as a practical matter plaintiff, because of his incapacity, could commence this lawsuit only through his conservators one of whom in July 1981 became aware of the likely cause of his injuries.

It seems to me unjust to allow a personal injury action to be brought by a conservator for the benefit of the conservatee without also allowing the defendant the benefit of the rule that the statute of limitations commences to run when the cause of the injury is discovered or, through the exercise of reasonable diligence, should have been discovered.  (See Code Civ.Proc., § 340.5;  Hills v. Aronsohn, supra, 152 Cal.App.3d 753, 759, 199 Cal.Rptr. 816;  Tresemer v. Barke, supra, 86 Cal.App.3d 656, 663, 150 Cal.Rptr. 384.)   The fact that the likely cause of plaintiff's injury was discovered by a conservator rather than by plaintiff should make no difference;  the significant fact is that the discovery was made.   Thus, inasmuch as the complaint shows on its face that the discovery was made more than one year before the action was commenced, in my opinion the action is subject to dismissal under the applicable statutes of limitation (Code Civ.Proc., §§ 340, subd. (3), 340.5).

I would affirm the judgment.

FOOTNOTES

1.   Abbott Laboratories and other health care providers have been dismissed from the suit.

2.   References to “the complaint” are to the fifth amended complaint filed June 7, 1985.

FN3. All references are to the Code of Civil Procedure unless otherwise stated..  FN3. All references are to the Code of Civil Procedure unless otherwise stated.

4.   Defendants requested the trial court take judicial notice of a declaration by Mr. Getty's mother filed in another matter.  (See Alisal Sanitary Dist. v. Kennedy (1960) 180 Cal.App.2d 69, 73, 4 Cal.Rptr. 379.)   They contended this declaration established that as of July 10, 1981, this conservator knew or should have known all the facts and circumstances surrounding Mr. Getty's injury and its negligent cause.   Thus, the complaint in this action, filed in 1984, was time-barred.Because we resolve this appeal on other grounds, we do not reach the question whether the facts set forth in the declaration establish the conservator's discovery of the negligent cause of Mr. Getty's injury.

5.   Contrary to respondent's assertion, our Supreme Court has never imputed the knowledge of a parent or guardian to a minor for purposes of the limitations period in section 340.   The cases cited by respondents involved the time for filing a claim under the Tort Claims Act.  (See, Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020, 1023–1024, 232 Cal.Rptr. 519, 728 P.2d 1154, Whitfield v. Roth (1974) 10 Cal.3d 874, 884–885, 112 Cal.Rptr. 540, 519 P.2d 588.)   The claims periods under the Act are not subject to the tolling provisions for minors and incompetents contained in section 352.  (Hernandez, supra, 42 Cal.3d at p. 1025, 232 Cal.Rptr. 519, 728 P.2d 1154.)”

1.   Code of Civil Procedure section 352 provides in pertinent part:  “(a) If a person entitled to bring an action, mentioned in Chapter 3 of this title, be, at the time the cause of action accrued, ․ [¶] 2.   Insane ․ the time of such disability is not a part of the time limited for the commencement of the action.”

JOHNSON, Associate Justice.

THOMPSON, J., concurs.