Bell v. Tri-City Hospital Dist.

• Decision Date: 20 November 1987
• Docket Number: TRI-CITY,No. D004096,D004096
• Court: California Court of Appeals Court of Appeals
• Parties: William Donald BELL, et al., Plaintiffs and Appellants, v.HOSPITAL DISTRICT, Defendant and Respondent.

Page 796

241 Cal.Rptr. 796

196 Cal.App.3d 438

William Donald BELL, et al., Plaintiffs and Appellants, v. TRI-CITY HOSPITAL DISTRICT, Defendant and Respondent.

No. D004096.

Court of Appeal, Fourth District, Division 1, California.

Nov. 20, 1987.

Stuart M. Eppsteiner, Patrick L. Prindle and John W. Jeffrey and Miller & Jeffrey, San Diego, for plaintiffs and appellants

Robert A. Cosgrove, Martha L. McGill and Coppo & Cosgrove, San Diego, for defendant and respondent.

WIENER, Acting Presiding Justice.

Plaintiffs William Donald Bell and Lillian Bell appeal from the judgment of dismissal entered after the demurrer of defendant Tri-City Hospital District (Tri-City) was sustained without leave to amend. The court's ruling was based on the Bells' failure to file an action against Tri-City within the 30 day period provided by Government Code section 946.6, subdivision (f) ¹ after the Bells obtained relief from the claim presentation requirement of section 945.4. ² We conclude, however, that the Bells' first amended complaint which was on file at the time the court granted relief from the claim requirement adequately stated a cause of action against Tri-City despite the fact that Tri-City was not named in the caption of the complaint. It was therefore unnecessary for the Bells to file a new amendment to the complaint within the 30-day period. Accordingly, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The Bells' action against Tri-City and others alleges medical negligence and use of a defectively designed and manufactured product in a series of unsuccessful surgeries performed on William Bell commencing in May 1983. In August 1984 the Bells discussed their problems with a lawyer who promptly served Tri-City with a "Notice of Intention to Commence Action Against a Health Care Provider" pursuant to Code of Civil Procedure section 364. Two days later the Bells filed their complaint alleging medical negligence and product liability against fictitiously named defendants only. On September 7, 1984, the Bells served Tri-City with their written claim and on September 27, 1984, applied for leave to file a late claim under section 911.4. ³ Tri-City denied the late claim application on October 25, 1984.

The Bells filed their first amended complaint on December 5, 1984, naming certain physicians and the manufacturer of the allegedly defective product as defendants in addition to 600 fictitiously named defendants. Tri-City was not named in the first amended complaint's caption and was not mentioned in the preliminary allegations setting forth the identities and capacities of the various defendants. Tri-City was named as a defendant in the eighth cause of action which alleged Tri-City negligently granted staff privileges to the defendant-physicians who had performed surgery on After filing their first amended complaint, the Bells successfully petitioned the court for relief from the written claim requirement on April 18, 1985. The formal order granting relief was signed and filed on June 3, 1985. On August 8, 1985, the Bells filed an amendment to their first amended complaint substituting Tri-City for Doe 402, serving that complaint on Tri-City on August 12, 1985. Tri-City then successfully demurred on the ground the Bells' suit on the claim to which it related had not been filed within 30 days after June 3, 1985, as required by section 946.6(f).

                William Bell and therefore Tri-City was the proximate cause of Bells' injuries. 4  The [196 Cal.App.3d 442] prayer of this complaint requested that damages be awarded against "defendants" without further specification
                

DISCUSSION

In order to succeed in this appeal, the Bells recognize they must establish that their complaint against Tri-City was filed on or before July 3, 1984, i.e., the last day of the thirty days following June 3, 1984 when they were given relief from the claim presentation requirement of the Tort Claims Act. The Bells' counsel on this appeal--the same counsel who drafted the complaint--has represented to us that he believed he could not properly file a complaint against a public entity before judicial relief from the claim presentation requirement had been granted. (See Wilson v. People ex rel. Dept. Pub. Wks. (1969) 271 Cal.App.2d 665, 76 Cal.Rptr. 906.) He therefore drafted a complaint so that Tri-City could be substituted as a Doe defendant at such time as the superior court granted relief. He relies on the fact that Doe amendments generally relate back to the date the original complaint was filed (see Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 599-600, 15 Cal.Rptr. 817, 364 P.2d 681; Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946, 154 Cal.Rptr. 472) and argues that the 30-day requirement of section 946.6(f) does not apply to limit the time within which Doe amendments may be filed.

There is, unfortunately, a fundamental inconsistency between the argument framed by the Bells' counsel and the complaint he filed on their behalf. As a justification for invoking the Doe defendant procedure, counsel indicates he believed Tri-City could not properly be named as a defendant at the time the first amended complaint was filed. Yet the eighth cause of action in that first amended complaint does in fact name Tri-City as a defendant and specifically alleges the basis for a claim of negligence. This is, therefore, not a situation in which a complaint which states a cause of action against a fictitiously named defendant is later amended to indicate the defendant's true name and/or additional facts on which the claim is based. Instead, what we have is a complaint In any event, counsel's argument proceeds from an improper premise. Although Wilson v. People ex rel. Dept. Pub. Wks, supra, 271 Cal.App.2d 665, 76 Cal.Rptr. 906 indicates that compliance with Tort Claims Act requirements is an element of a cause of action against a public entity which must be affirmatively pleaded, several later cases have questioned Wilson's broad language and reached conclusions inconsistent with its rationale. (See Bahten v. County of Merced (1976) 59 Cal.App.3d 101, 130 Cal.Rptr. 539; Cory v. City of Huntington Beach (1974) 43 Cal.App.3d 131, 117 Cal.Rptr. 475; Savage v. State of California (1970) 4 Cal.App.3d 793, 84 Cal.Rptr. 650.) Each of these later cases relies by analogy on the Supreme Court's decision in Radar v. Rogers (1957) 49 Cal.2d 243, 317 P.2d 17. Radar concerned a Probate Code provision which required that claims against an estate be presented to and rejected by the executor or administrator before suit could be brought on the claims. The statute also required that suit on a rejected claim be filed within three months of the rejection. The plaintiff in Radar filed an action for damages before an administrator for the estate was appointed. As a result, the complaint did not allege the claim had been presented to the administrator. After an administratrix was appointed, plaintiff filed a claim which was rejected. More than three months later, plaintiff filed a first amended complaint to which the administratrix successfully demurred on the ground that the pleading was not timely filed. The Supreme Court reversed, holding that since the administratrix had notice of the claim and the opportunity to accept it before the amended complaint was filed, she had received every benefit with which the statute was designed to provide her. The court concluded, "[I]t would be highly technical to apply section 714 to bar this complaint, which was not filed too late but, at worst, prematurely. The substantial rights of the estate are not affected by the procedure followed by plaintiffs." (Id. at p. 249, 317 P.2d 17.)

which states a cause of action against a named defendant but omits the name of that defendant from the caption of the complaint. Under these circumstances, it is not surprising that the trial judge, in sustaining Tri-City's demurrer, expressed skepticism at counsel's claim of ignorance within the meaning of Code of Civil Procedure section 474.

Radar's holding and rationale were directly applied in the governmental claims context in Bahten v. County of Merced, supra, 59 Cal.App.3d 101, 130 Cal.Rptr. 539. With the exception of the defective caption, the facts of Bahten are quite similar to those in this case. The plaintiff filed a petition for leave to file a late claim with the public entity and four days later filed a complaint against that same public entity. The petition was later rejected. As in this case, the superior court granted plaintiff's request for relief from the claim presentation requirement (see § 946.6) but plaintiff failed to file an amended complaint alleging the superior court's order of relief until more than 30 days had passed. The Bahten court held, however, that it was unnecessary for the plaintiff to take any action within the 30-day period because he already had on file a "suit on the cause of action to which the claim relates,...." (§ 946.6(f).) Relying substantially on Radar and Cory v. City of Huntington Beach, supra, 43 Cal.App.3d 131, 117 Cal.Rptr. 475, the court explained that a prematurely filed complaint satisfied the requirements of section 946.6(f) because compliance with the tort claims prerequisites, being merely a procedural predicate to suit and not an element of a cause of action, need not be alleged in the complaint. Bahten distinguishes Wilson--pointing out among other things that the State of California was never named in any complaint filed before the expiration of the 30-day period--and also questions its continuing vitality: "... Wilson has been largely eroded by the liberal construction accorded the claims statute in Cory and Savage, supra, particularly as it relates to the premature filing of complaints and to the fulfillment of the statutory purposes by means other than strict compliance with the statute itself." (Id. 59 Cal.App.3d at p Arguably, Wilson was inconsistent with Radar at the time it...