Barber v. Superior Court, C011520

• Decision Date: 27 September 1991
• Docket Number: No. C011520,C011520
• Citation: 234 Cal.App.3d 1076,285 Cal.Rptr. 668
• Court: California Court of Appeals Court of Appeals
• Parties: Louis M. BARBER, M.D., Petitioner, v. SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent, Larna ECKHARDT et al., Real Parties in Interest.

Page 668

285 Cal.Rptr. 668

234 Cal.App.3d 1076

Louis M. BARBER, M.D., Petitioner, v. SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent, Larna ECKHARDT et al., Real Parties in Interest.

No. C011520.

Court of Appeal, Third District, California.

Sept. 27, 1991.

[234 Cal.App.3d 1078] Douglas A. Haydel, Mikki M. Riella, Diehl, Steinheimer, Riggio, Haydel & Mordaunt, Stockton, for petitioner.

[234 Cal.App.3d 1079] No appearance for respondent.

Stanley E. Gardner, San Francisco, for real parties in interest.

PUGLIA, Presiding Justice.

Petitioner (defendant) moved for summary judgment in the superior court on the ground that the medical malpractice complaint of real parties in interest (plaintiffs) is barred by the statute of limitations. The motion was denied and defendant seeks writ review pursuant to Code of Civil Procedure section 437c, subdivision (l ). (All further statutory references to sections of an undesignated code are to the Code of Civil Procedure.) We agree that the complaint was not timely filed, and shall issue a writ of mandate directing the respondent superior court to enter judgment in defendant's favor.

The complaint is based on the alleged failure of defendant, a medical doctor, correctly to diagnose and treat plaintiff Larna Eckhart's appendicitis. Plaintiff Vance Eckhart, Larna's husband, seeks damages on his own behalf for loss of consortium. The complaint alleges that on August 14, 1989, Larna complained to defendant of chest pains, and that on August 21 she sought treatment from him for vomiting, diarrhea and severe abdominal pain. Defendant concluded she had the flu, prescribed some medication, and sent her home. The next day, August 22, Larna was admitted to the hospital, where emergency surgery was performed by Dr. Jerry Weiner. Weiner discovered that Larna was suffering from a perforated appendix, which was removed.

In support of his motion for summary judgment, defendant argued that the statute of limitations began to run on August 22, or at the latest on August 23, 1989. Plaintiffs served defendant with notice of intention to sue, as required by section 364, subdivision (a), on August 16, 1990. The complaint was filed on November 28, 1990, one year and 98 days after the alleged August 22, 1990 accrual of plaintiffs' causes of action. Relying on the California Supreme Court's decision in Woods v. Young (1991) 53 Cal.3d 315, 279 Cal.Rptr. 613, 807 P.2d 455, defendant argued that plaintiffs had at most one year and 90 days from the date of accrual in which to commence this action.

Plaintiffs opposed the motion on two theories. Plaintiffs argued that the Woods decision was to be applied prospectively to cases not yet filed. Plaintiffs asserted they were therefore entitled to rely on this court's 1988 [234 Cal.App.3d 1080] opinion in Brodehl v. Becker (Cal.App.) which interpreted sections 364, subdivision (d), and 356 as extending the one year period of limitations in section 340.5 to 180 days from the date notice of intention to sue was filed when plaintiff has filed that notice during the last 90 days of the one year limitation period. ¹ The respondent superior court agreed with this analysis, and denied the motion for summary judgment on that basis. Plaintiffs also argued in opposition to summary judgment that defendant is "estopped" from pleading commencement of the statute of limitations on August 22 or 23, 1989 due to certain conduct on the part of defendant's counsel.

I

Section 364, subdivision (a) requires that a plaintiff serve notice of intention to sue at least 90 days prior to filing a complaint for medical malpractice. Subdivision (d) of section 364 extends the one year limitations period of section 340.5 an additional 90 days when such notice is served during the last 90 days of that year. (See Woods v. Young, supra, 53 Cal.3d at pp. 320-321, 279 Cal.Rptr. 613, 807 P.2d 455.) Prior to the Woods decision, the courts of appeal that had considered the question had concluded that the 90-day extension provision inured to the benefit of all plaintiffs who served their notice of intention to sue within one year after accrual of a cause of action, regardless of whether the notice was served during the last 90 days or earlier. However, the appellate courts were divided over another issue, i.e., whether the 90-day extension, when combined with the general tolling provision of section 356, resulted in an effective commencement deadline of one year plus 90 days from accrual, or one year extended by up to 180 days from filing notice of intention to sue. ² (Woods, supra, 53 Cal.3d at pp. 321-323, 330, 279 Cal.Rptr. 613, 807 P.2d 455.) The Supreme Court dealt with both these issues in Woods.

Woods holds that the 90-day extension of section 364, subdivision (d), is applicable only when the notice of intention is served during the last 90 days of the one year limitations period. Second, and of more significance to the present case, Woods resolved the conflict among the court of appeal decisions regarding the outside limit for commencement of suit, holding that the extension provisions create a maximum filing period of one year plus 90 days from the date the statute of limitations commences to run. (53Cal.3d at [234 Cal.App.3d 1081] p. 328, 279 Cal.Rptr. 613, 807 P.2d 455.) Thus, the Woods court disapproved the appellate decisions holding the 90-day extension applicable regardless of when the notice of intention to sue is served and also those enlarging the limitations period for up to one year plus 180 days. (53 Cal.3d at p. 328, fn. 4, 279 Cal.Rptr. 613, 807 P.2d 455.)

Thus, assuming the validity of defendant's claim that the one year statute began running on August 22 or 23, 1989, this action would be barred under the rule declared in Woods, since it was filed more than one year and 90 days after accrual. Plaintiff argues that the Woods court limited the application of its decision prospectively to complaints filed thereafter. As a result, plaintiffs contend trial courts in the Third District were governed by this court's 1988 opinion in Brodehl v. Becker, supra, which aligned with the decisions later disapproved in Woods holding that one year plus 180 days from filing of notice of intention is the maximum possible limitations period.

Plaintiffs' argument is flawed. First, the Supreme Court's directive concerning the prospectivity of Woods v. Young, supra, was limited to its holding that the extension allowed by section 364, subdivision (d) is available only when the notice of intention to sue is served during the final 90 days of the one year limitations period. There is no indication that this prospectivity also encompassed the second holding of the Woods decision limiting the maximum filing period to one year plus 90 days. The court's intent appears in several passages. For instance, in analyzing the propriety of prospectivity, the court observes that litigants had justifiably relied on the unanimous agreement by all courts of appeal that had considered the issue that the 90-day extension was added to the one-year limit regardless of when the notice of intention was served. (53 Cal.3d at p. 330, 279 Cal.Rptr. 613, 807 P.2d 455.) However, in a footnote the court pointed out that reliance on a maximum limitations period of one year plus 180 days could not be considered reasonable; even though that calculation had been approved by some courts of appeal, it was "vigorously disputed" in other appellate opinions. (Id. at p. 330, fn. 6, 279 Cal.Rptr. 613, 807 P.2d 455.) The Woods court then goes on to state: "Consideration of the relevant factors leads us to conclude that our primary holding in this case should be given only prospective application. Accordingly, this opinion's holding--that the notice of intent to sue tolls the one-year limitations period only when the notice is served during the last ninety days of the one-year period--shall apply only to complaints filed more than ninety days after this decision becomes final...." (Id. at p. 331, 279 Cal.Rptr. 613, 807 P.2d 455.) (Emphasis added.) The most plausible reading of this language is that insofar as Woods holds the maximum period for commencement of suit is one year plus 90 days after accrual of the cause of action, it is subject to the usual rule that judicial decisions are applied retroactively to all cases pending when the decision is rendered. (Newman v. Emerson Radio Corp. [234 Cal.App.3d 1082] (1989) 48 Cal.3d 973, 978, 981-982, 258 Cal.Rptr. 592, 772 P.2d 1059.) That, of course, includes the present action.

Notwithstanding our opinion in Brodehl v. Becker (Cal.App.), we are bound to follow the Supreme Court's later decision in Woods v. Young, supra. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.) The Supreme Court granted review in Brodehl on December 15, 1988. A grant of review determines that the court of appeal's opinion shall not be published unless otherwise ordered by the Supreme Court (Cal.Rules of Court, rule 976(d); Agricultural Labor Relations Board v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12, 238 Cal.Rptr. 780, 739 P.2d 140.) The Supreme Court has not otherwise so ordered; indeed it has transferred the Brodehl case to this court and ordered that we vacate the decision and reconsider in light of Woods v. Young. Thus our Brodehl decision never became final and is without any precedential value or binding force. An unpublished opinion may not be cited or relied upon. (Cal.Rules of Court, rule 977(a); People v. Webster (1991) 54 Cal.3d 411, ----, fn. 4, 285 Cal.Rptr. 31, 814 P.2d 1273.)

Plaintiffs' reliance on Brodehl, if they did so rely, was not reasonable. Supreme Court review of that case was granted 9 months before the occurrence of the events upon which plaintiffs' complaint is based and 23 months before plaintiffs filed their complaint in November 1990. The fact that the Brodehl opinion was twice reprinted in the...