Banfield v. Sierra View Local Dist. Hospital

• Decision Date: 08 October 1981
• Citation: 124 Cal.App.3d 444,177 Cal.Rptr. 290
• Court: California Court of Appeals Court of Appeals
• Parties: Fred E. BANFIELD, Plaintiff and Appellant, v. SIERRA VIEW LOCAL DISTRICT HOSPITAL et al., Defendants and Respondents. Civ. 4727.

Page 290

177 Cal.Rptr. 290

124 Cal.App.3d 444

Fred E. BANFIELD, Plaintiff and Appellant, v. SIERRA VIEW LOCAL DISTRICT HOSPITAL et al., Defendants and Respondents.

Civ. 4727.

Court of Appeal, Fifth District, California.

Oct. 8, 1981.

As Modified Nov. 4, 1981.

Robert T. Durbrow, Jr., Clovis, for plaintiff and appellant.

Hurlbutt, Clevenger, Long & Vortmann, Edmund C. Hurlbutt, and Philip B. Laird, Jr., Visalia, Clifford, Jenkins & Brown, James E. Brown, Bakersfield, for defendants and respondents.

OPINION

FRANSON, Acting Presiding Justice.

Appellant, the plaintiff in a medical malpractice action, appeals from judgments of dismissal entered after the trial court sustained the demurrers of respondents two public hospital districts without leave to amend. The basis for the trial court's ruling was that appellant's complaint was barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.5. ¹

Appellant makes several independent contentions on appeal as to why the judgments should be reversed. First, appellant contends the trial court erred in denying him relief from the claim filing requirements of the California Tort Claims Act because of his excusable neglect in relying on his first attorney, Mr. Heusdens, to take whatever action was required to pursue his malpractice claims against the defendants, including filing a claim within one hundred days of the accrual of his cause of action. Second, he argues that the one-year limitation period provided by Code of Civil Procedure section 340.5 was tolled during the time appellant sought judicial relief from the claim filing requirements because of his excusable neglect and the failure of the defendant hospitals to comply with the information filing requirements of Government Code section 53051. ² Third, appellant asserts that under the joint operation of Code of Civil Procedure sections 356 ³ and 364, ⁴ the one-year statute of limitations was tolled and extended for one hundred eighty days following appellant's giving of a notice of intent to sue, thereby rendering his complaint timely filed.

As we shall explain, none of appellant's arguments have merit, and the judgments are affirmed.

The convoluted procedural labyrinth in which appellant found himself can be described as follows: On August 9, 1978, appellant through his attorney Mr. Durbrow filed a complaint initiating the instant action. The complaint alleged medical malpractice causes of action against respondents Sierra View Local District Hospital and Kaweah Delta Hospital District. It alleged that both hospitals were public entities organized under the local hospital district law of the State of California; that on March 14, 1978, claims had been filed against both hospitals pursuant to Government Code section 905 and that these claims had been denied under section 912.4 on April 10, 1978. Attached to the complaint were two exhibits entitled "APPLICATION FOR LEAVE TO PRESENT LATE CLAIM." These applications, addressed to Sierra View Hospital and Kaweah Hospital respectively, had been filed with the hospitals on March 14, 1978, and sought leave to present late claims on the basis of "mistake, inadvertence, surprise, and excusable neglect of the claimant and (Attorney) James Heusdens ...."

On the same day the complaint was filed, appellant also filed in the Tulare County Superior Court a petition for relief from the claims requirement under Government Code section 946.6. ⁵ The petition alleged the cause of action arose on or about April 28, 1977, and due to mistake, inadvertence, surprise, and excusable neglect of appellant and others, the claims against the hospitals had not been timely filed.

Attached to the petition for leave to file a late claim was the declaration of appellant which stated as follows. Appellant was hospitalized in Sierra View Hospital following an automobile accident on April 28, 1977; after being diagnosed and treated there, he was transferred to Kaweah Hospital where he underwent surgery. He was hospitalized on two separate occasions for a total of thirty days. During his hospitalization, appellant was in contact with Attorney James Heusdens, and appellant told the attorney on several occasions that he thought he had a claim for negligent treatment at the hospitals. When appellant realized Attorney Heusdens was not going to take legal action on his behalf, appellant contacted the San Jose law firm of Boccardo et al. in late 1977 or early 1978; that office declined the case. Appellant then contacted Attorney Robert Durbrow of Fresno, who took the case and sought to file a late claim against the hospitals.

Appellant's declaration stated on information and belief that his first attorney, Mr. Heusdens, "was more concerned with the other legal actions on which he was representing (appellant) and was not sufficiently educated and experienced in the handling of malpractice actions to take the necessary steps to protect (appellant's) rights in filing the appropriate claims against each of the (subject) hospitals." The declaration asserted that the negligence of Attorney Heusdens, in failing to file the claims and/or refer the matter to a more experienced attorney, was excusable under Government Code section 946.6.

Appellant's new attorney, Robert Durbrow, also submitted a declaration in support of the petition. Durbrow's declaration recited that his office had filed, on appellant's behalf, an application for filing a late claim and that this was done within a reasonable time to provide the public hospitals with reasonable notice of the nature and type of the claim asserted by appellant.

Durbrow's declaration also stated that he had obtained copies of statements filed by both of the defendant hospitals with the Roster of Public Agencies maintained by the clerk of Tulare County. The statements, attached as exhibits to the petition, failed to show "substantial changes" which had occurred in the name and address of the secretary of each hospital.

Appellant submitted points and authorities to establish that he had made a sufficient showing of mistake or excusable neglect to entitle him to file a late claim, and in any event, that the defendant hospitals could not assert noncompliance with the claims statutes as a defense because of their failure to keep an up-to-date public record of information as required by law. He cited Government Code, section 946.4 ⁶ and Wilson v. San Francisco Redevelopment Agency (1977) 19 Cal.3d 555, 138 Cal.Rptr. 720, 564 P.2d 872.

The hospitals filed general and special demurrers to the complaint. The hospitals specially demurred on the ground of uncertainty because the complaint alleged that claims against the hospitals had been filed on March 14, 1978, which allegation was inconsistent with the filing of a petition for relief from the claim filing requirements.

The trial court sustained the special demurrers on the ground of uncertainty but allowed appellant leave to amend his complaint. In the same ruling, the court also denied appellant's leave for application to file a late claim on the ground that appellant had failed to make the required showing of mistake, inadvertence, surprise, or excusable neglect; however, the court did grant appellant relief under Government Code section 946.4 from the requirement of presenting a claim because the hospital had not filed the required information with the Roster of Public Agencies.

Appellant thereafter filed an amended complaint which omitted any reference to the claims requirement.

Respondents then demurred to the amended complaint on the ground that the action was barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340.5. After receiving points and authorities, the trial court sustained the demurrers and filed the following opinion explaining the reasons for this ruling:

"The demurrer of the defendants is sustained without leave to amend. It appears from the face of the complaint that more than one year has elapsed between the date of injury and the date of the filing of the complaint.

"There is no authority for the proposition that seeking relief from the hospital district for filing a late claim tolls the applicable statute of limitations."

A judgment dismissing the complaint against Sierra View Hospital was entered on January 22, 1979.

Appellant then moved for reconsideration on the ground that the applicable statute of limitations was tolled while relief from the claim filing statutes was being sought. The points and authorities in support of this motion cited Code of Civil Procedure section 356 and cases interpreting that section as authority for the proposition that the statute of limitations was tolled while appellant was seeking relief from failure to file a timely claim.

The trial court issued a written ruling on the motion, noting that "... where the filing of a claim is a prerequisite to the filing of a lawsuit the statute does not run until the application is granted." However, "(t)here is no such requirement in the instant case. Since no claim needed to be filed as a prerequisite for the filing of a lawsuit there was no tolling of the statute."

The court then entered a judgment dismissing the complaint against Kaweah Hospital on February 6, 1979. On that same date, the court entered a formal order denying appellant's petition for relief from the claim filing requirements on the ground of excusable neglect. (This petition had been ruled on about four months earlier on Oct. 10, 1978, but the order was first entered on Feb. 6, 1979.) Notice of entry of this order was sent on February 8, 1979.

On March 15, 1979, appellant filed a notice of appeal from the judgments of dismissal.

DISCUSSION

We shall first treat appellant's contention that the trial court abused its discretion in denying him relief from the claim filing requirements on the ground of excusable neglect. ⁷

In determining whether an injured party's...