Admas v. Roses

• Decision Date: 18 July 1986
• Citation: 183 Cal.App.3d 498,228 Cal.Rptr. 339
• Court: California Court of Appeals Court of Appeals
• Parties: Judith Mildred ADAMS, et al., Plaintiffs and Appellants, v. Joaquin ROSES, M.D., et al., Defendants and Respondents. Civ. B012370.

Page 339

228 Cal.Rptr. 339

183 Cal.App.3d 498

Judith Mildred ADAMS, et al., Plaintiffs and Appellants, v. Joaquin ROSES, M.D., et al., Defendants and Respondents.

Civ. B012370.

Court of Appeal, Second District, Division 6, California.

July 18, 1986.

[183 Cal.App.3d 501] James R. Burlison, for plaintiffs and appellants.

Robert F. Harris and Kathlene Bonnigson of Bauer, Harris & McEvoy, Santa Barbara, for defendants and respondents Santa Barbara Cottage Hosp. and John T. Poindexter, M.D.

Janet C. Vining of Hillsinger & Costanzo, Santa Barbara, for defendants and respondents Joaquin Roses, M.D., John A. Clark, M.D. and Sansum Medical Clinic.

GILBERT, Associate Justice.

Plaintiffs Judith Mildred Adams and Warren E. Adams appeal the judgment dismissing their action for failure to diligently prosecute it within two years. (Former Code of Civ.Proc., § 583. ¹ ) We affirm the judgment and hold that the trial judge did not abuse his discretion in dismissing the action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 332, 216 Cal.Rptr. 718, 703 P.2d 58; Luti v. Graco, Inc. (1985) 170 Cal.App.3d 228, 233, 215 Cal.Rptr. 902.) We also hold that section 411.30, requiring that plaintiffs file a certificate of merit prior to serving the summons and complaint upon defendants, does not deny plaintiffs equal protection of the law. (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 373, 204 Cal.Rptr. 671, 683 P.2d 670.)

FACTS

On January 7, 1981, defendant surgeons performed surgery upon plaintiff Judith Adams to remove a benign neck tumor. During the surgery, the surgeons nicked her carotid artery and severed her vocal cords. Adams suffered a stroke, partial paralysis, pneumonia, and other complications as a result.

Plaintiff and her husband retained the law firm of Keough and Keough to represent them in their malpractice claim. On December 30, 1981, the firm mailed notices of intent to sue to the surgeons, hospital Later that year two claims agents representing defendants wrote Keough and Keough concerning the lawsuit and requested that plaintiff complete authorizations releasing her medical records to them. Truck Insurance Exchange, representing defendants Poindexter and Cottage Hospital, did not receive a reply. The law firm did call James Spence, a claims agent representing defendants Roses, Clark and Sansum Medical Clinic, and informed him there would be "no free discovery" and that the complaint would be served eventually.

and clinic. Plaintiffs then filed a complaint for medical malpractice on March 31, 1982, [183 Cal.App.3d 502] but did not serve the summons and complaint upon any defendant since plaintiffs had not obtained a certificate of merit. ( § 411.30.)

In January 1984 James Burlison became the attorney for plaintiffs after Keough and Keough withdrew. On September 21, 1984, he filed an amended complaint and a certificate of merit. He served this amended complaint on all defendants in early November 1984--two years and seven months after plaintiffs filed the initial complaint.

Defendants Poindexter and Cottage Hospital moved to dismiss plaintiffs' complaint under section 583, alleging plaintiffs failed to diligently prosecute the action. Defendants Roses, Clark and Sansum Medical Clinic joined in the motion. In a declaration accompanying defendants' motion, the Truck Insurance claims agent declared that without plaintiff's medical authorizations, he was unable to investigate plaintiffs' claim. He also stated that two of the surgical nurses who attended to plaintiff during surgery were no longer employed by the hospital and the whereabouts of one was unknown. Thirty-five other hospital employees who cared for plaintiff were also no longer employed by the hospital. Thirteen of those former employees have relocated outside the city or state.

Plaintiffs' attorney Burlison resisted the motion by declaring that he and plaintiffs' former attorneys were unable to obtain a favorable medical expert opinion to allow them to file the certificate of merit and to serve the complaint earlier. Burlison and Keough also stated that plaintiff's medical records were voluminous and time consuming to collect.

Burlison's and Keough's declarations stated that Keough had contacted physicians who either refused to state an opinion or gave an unfavorable opinion to plaintiffs. Burlison declared that Keough "... made attempts to contact doctors ... [but was] unable to find a local doctor willing to get involved in this case." Keough stated that she had "... made numerous attempts to contact physicians ... [but] was unable to obtain a medical opinion which would enable [her] to file a Certificate of Merit." She also retained an "East Coast" medical expert but received an unfavorable opinion.

The trial judge dismissed plaintiffs' complaint for failure to diligently prosecute the action. He specifically found both a lack of diligence in prosecution and prejudice to defendants. Prior to his ruling, the trial judge questioned Burlison why plaintiffs did not file a certificate of merit under section 411.30, subdivision (b)(3), stating that three physicians refused to agree to a consultation. ² Burlison stated: "I think On appeal plaintiffs argue (1) the certificate of merit requirement of section 411.30 stayed the two year period under section 583; (2) but if not, the trial judge abused his discretion in dismissing the complaint; (3) the certificate of merit requirement denies plaintiffs the equal protection of the law; and (4) defendants Roses, Clark and Sansum Medical Clinic failed to give the required forty-five days notice prior to joining in the motion to dismiss.

[the] attorney takes them on a limb without getting an opinion before filing a certificate of merit...."

DISCUSSION

I.

Plaintiffs contend that the requirement of a certificate of merit tolls the two year period of former section 583 and that the trial judge therefore could not dismiss the action under that section. They argue that subdivision (f) of section 583 excludes from the two year period the time during which a defendant is not amenable to court process or the time during which the court lacks jurisdiction of the action. Moreover, they argue that judicial decisions have tolled section 583 where it has been impossible, impracticable or futile for the plaintiff to proceed. (Reserve Ins. Co. v. Universal Underwriters Ins. Co. (1975) 51 Cal.App.3d 57, 61, 123 Cal.Rptr. 763.)

We conclude that the legislature did not intend that the time during which a plaintiff obtains a certificate of merit be excluded from the two year period of section 583. We also decide that it was possible for plaintiffs here to comply with subdivision (b)(3) of section 411.30. (See footnote 2, supra.)

At the time of defendants' dismissal motion, section 583, subdivision (a) provided that a court "in its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed...." ³ Subdivision (f) provided that "[t]he time during which the defendant was not amenable to the process of the court and the time during which the jurisdiction of the court to try the action is suspended shall not be included in computing the time period specified in any subdivision of this action."

Although no reported decisions have interpreted the coincidence of sections 583 and 411.30, we think the language of 411.30 resolves plaintiffs' arguments. Section 411.30 requires a plaintiff alleging a medical malpractice claim to review his case with a medical expert prior to suit and in effect, to refrain from suit unless the expert opines that the action is meritorious. Subdivisions (b)(2) and (b)(3), however, postpone or excuse compliance in two instances. First, if the statute of limitations, including the three year rule described by former section 581a, threatens plaintiff's action, the attorney shall so declare, serve the complaint, and file a certificate of merit within sixty days of service of the complaint. (subd. (b)(2).) Second, if the attorney had attempted three times to consult medical experts and none "would agree to such a consultation," compliance is excused. (subd. (b)(3).)

The obvious purpose of section 411.30 is to require a plaintiff to obtain independent support of the merits of his action prior to serving defendant. (Strauch v. Superior Court (1980) 107 Cal.App.3d 45, 49, 165 Cal.Rptr. 552.) Compliance is postponed if the statute of limitations is near, or excused if plaintiff encounters "a conspiracy of silence" from medical experts. If the legislature had intended that the time during which a plaintiff attempts to obtain a certificate of merit be excluded from any limitations or dismissal period, it would not have provided subdivision (b)(2), postponing the filing of the certificate where plaintiff's action in those circumstances is threatened by dismissal. Moreover, although section (b)(2) excludes the limitations period embraced by section 581a (the three year period for service and return of summons), (b)(2) does not include the two year period of section 583, subdivision (a). Had the legislature meant to include 583, subdivision (a) within subdivision (b)(2), it would have done so.

We also think that plaintiffs' attorney could have filed a declaration under subdivision (b)(3) since Burlison's and Keough's declarations stated that Keough had contacted experts who were unwilling to "get involved." The exception of subdivision (b)(3) obviates the requirement of a certificate where plaintiff confronts reluctant experts and is applicable here. Were the rules as plaintiffs contend, a plaintiff with an unlikely claim could toll the running of all limitations statutes while he relentlessly searched for the elusive favorable opinion. That is not the law.

II.

Plaintiffs also contend the trial judge abused his discretion in dismissing their action. We disagree because the trial judge's decision...