49 Cal.3d 699, S001352, Phillips v. Desert Hospital Dist.

Docket Nº:S001352.
Citation:49 Cal.3d 699, 780 P.2d 349, 263 Cal.Rptr. 119
Opinion Judge:KAUFMAN, Justice.
Party Name:Paula E. PHILLIPS et al., Plaintiffs and Appellants, v. DESERT HOSPITAL DISTRICT, Defendant and Respondent.
Attorney:Tanzer, Rosato & Samuels, Ellen Kamon, Cary S. Samuels, Ralph L. Rosato, Beverly Hills, Haines, Russ, McMurry & de Recat and Craig J. de Recat, Los Angeles, for plaintiffs and appellants. Horvitz, Levy & Amerian, Encino, Merrill & Neiswender, Redlands, Thompson & Colegate, Riverside, David S. Ett...
Case Date:October 16, 1989
Court:Supreme Court of California

Page 699

49 Cal.3d 699

780 P.2d 349, 263 Cal.Rptr. 119

Paula E. PHILLIPS et al., Plaintiffs and Appellants,


DESERT HOSPITAL DISTRICT, Defendant and Respondent.

No. S001352.

Supreme Court of California, In Bank.

October 16, 1989

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[Copyrighted Material Omitted]

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[263 Cal.Rptr. 120] Tanzer, [780 P.2d 350] Rosato & Samuels, Ellen Kamon, Cary S. Samuels, Ralph L. Rosato, Beverly Hills, Haines, Russ, McMurry & de Recat and Craig J. de Recat, Los Angeles, for plaintiffs and appellants.

Horvitz, Levy & Amerian, Encino, Merrill & Neiswender, Redlands, Thompson & Colegate, Riverside, David S. Ettinger, [263 Cal.Rptr. 121] Thomas M. Brown, David M. Axelrad, Grant Marylander and Michelle L. Stern, Encino, for defendant and respondent.


KAUFMAN, Justice.

We granted review in this case to determine whether a notice of intention to commence an action based upon a health care provider's alleged professional negligence (Code Civ.Proc., § 364, subd. (a)) may activate the notice and defense-waiver provisions (Gov.Code, §§ 910.8, 911, 911.3) of the Tort Claims Act (Gov.Code, § 900 et seq.) (act).1 As explained below, we conclude that a public entity must treat a notice, such as the notice at issue here, that alerts it to the existence of a

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claim for monetary damages and an impending lawsuit but fails to comply substantially with the claim presentation requirements of the act, as a defective " claim" that triggers the operation of sections 910.8, 911 and 911.3. These sections (1) require a public entity to notify a claimant of any insufficiencies of content or timeliness that prevent a claim as presented from satisfying the requirements of the act and (2) provide that failure to give such notice waives any defenses based on those insufficiencies.2


This appeal is from a judgment of dismissal entered after the trial court sustained defendant's demurrer. Therefore, under settled law, we assume the truth of all properly pleaded material allegations of the complaint ( Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 164 Cal.Rptr. 839, 610 P.2d 1330; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216) and give it a reasonable interpretation by reading it as a whole and its parts in their context ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58).

On September 11, 1983, plaintiff Paula E. Phillips was admitted to Desert Hospital (hospital), a public hospital district, the defendant herein. On the

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advice of her doctors, she underwent a bilateral mastectomy and reconstructive surgery. Mrs. Phillips and her husband, also a plaintiff, allege that the surgery was both medically unnecessary and negligently performed and that as a result she developed complications, including gangrene. Plaintiffs further allege that, notwithstanding the unsuccessful surgery, Mrs. Phillips was released from the hospital on October 2, 1983, without being informed of the nature or extent of her condition. As a result, [263 Cal.Rptr. 122] plaintiffs allege that Mrs. Phillips has been compelled to seek extensive additional medical treatment, including surgical intervention.

[780 P.2d 352] On April 6, 1984 (205 days after the surgery and 185 days after Mrs. Phillips's release from the hospital), plaintiffs' counsel mailed to the hospital a notice (hereafter 364 notice) pursuant to Code of Civil Procedure section 364, subdivision (a), which requires potential medical malpractice plaintiffs to notify health care providers of their intent to sue 90 days prior to filing a complaint.

Plaintiffs' 364 notice was typed on their law firm's stationery which bore the firm's name, address and telephone number, was signed by their attorney and stated as follows:

" Desert Hospital

1150 North Indian Avenue

Palm Springs, California 92262

" Re: Intention to Commence Action

" Re: Paula E. Phillips and Richard A. Phillips

" Re: Date of Incident: September 12, 1983

" To Whom It May Concern:

" This letter will serve to advise you that this office intends to commence an action against Desert Hospital on behalf of Paula E. Phillips and her husband Richard A. Phillips. This action arises out of apparent Health Care Provider Negligence (Medical Malpractice) resulting from the diagnosis, care, treatment, operation and related services rendered to Paula E. Phillips on or about September 12, 1983 at Desert Hospital, Palm Springs, California, and the subsequent complications, treatment, damages and emotional distress resulting therefrom. Mr. Phillips will claim damages for loss of consortium and for his mental and emotional suffering resulting from the damages and disfigurement to his wife." (Original italics.)

Having received no response from the hospital, plaintiffs filed a complaint on July 27, 1984, in which they alleged causes of action for negligence, willful misconduct, fraud, conspiracy to defraud, concealment, intentional and negligent infliction of emotional distress and loss of consortium. The

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complaint named as defendants Mrs. Phillips's treating physicians and the hospital.

The hospital demurred to the complaint on the ground that plaintiffs had failed to state a cause of action because they did not allege compliance with the claim presentation requirements of the act.

Before the demurrer was scheduled to be heard, plaintiffs filed without leave of court a first amended complaint. (Code Civ.Proc., § 472 [prior to trial of issue of law thereon, pleading may be amended once of course after demurrer filed].) In the first amended complaint, plaintiffs attempted to remedy the asserted defect by stating, " Plaintiffs have complied with the provisions of Government Code § 900, et seq., " and by attaching and incorporating by reference applications they had recently sent to the state and county for leave to present a late claim. According to the amended complaint, the hospital's demurrer was the first indication to plaintiffs that the hospital was a public entity.

The amended complaint claimed the hospital was estopped from asserting any defenses based upon plaintiffs' failure to comply with the claim presentation requirements. The alleged ground of estoppel was that the hospital had attempted to conceal its identity as a public entity and had not complied with section 7530 (requiring public entities to identify themselves as such by so stating on their " letterhead stationery" and business cards).

The hospital demurred to the first amended complaint on the same ground relied upon in demurring to the original complaint, to wit, plaintiffs' alleged lack of compliance with the act. The demurrer stated that claims were required to be presented to the hospital's governing board.

The trial court sustained the demurrer without leave to amend and subsequently dismissed the amended complaint. Plaintiffs appealed from the order of dismissal and the Court of Appeal affirmed the judgment. Plaintiffs then petitioned for review. [263 Cal.Rptr. 123] We granted review and transferred the case to the Court of Appeal for reconsideration in light of Foster v. McFadden (1973) 30 Cal.App.3d 943, 106 Cal.Rptr. 685 and sections 910.8, 911 and 911.3. The [780 P.2d 353] Court of Appeal subsequently rendered a second opinion in which it reaffirmed its initial judgment and distinguished the instant case from Foster v. McFadden, supra. We again granted review and now reverse.


On appeal below, the court addressed the question whether plaintiffs' 364 notice complied substantially with the claim presentation requirements

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of the act. Finding the answer in the negative, the Court of Appeal upheld the dismissal of the plaintiffs' action. While we agree that the 364 notice does not comply substantially with the claim presentation requirements of the act (see post, fn. 7), that conclusion is not dispositive of the case. The dispositive issue is whether plaintiffs' 364 notice triggered the notice and defense-waiver provisions of the act (§§ 910.8, 911, 911.3). Recognizing that as the...

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