Camarillo v. Vaage, D039057.

• Decision Date: 21 January 2003
• Docket Number: No. D039057.,D039057.
• Citation: 105 Cal.App.4th 552,130 Cal.Rptr.2d 26
• Parties: Claudia CAMARILLO, Plaintiff and Appellant, v. Robert F. VAAGE, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

130 Cal.Rptr.2d 26

105 Cal.App.4th 552

Claudia CAMARILLO, Plaintiff and Appellant, v. Robert F. VAAGE, et al., Defendants and Respondents.

No. D039057.

Court of Appeal, Fourth District, Division 1.

January 21, 2003.

Certified for Partial Publication.¹

Review Denied April 16, 2003.^*

The Loftus Law Firm and Donald J. Loftus for Plaintiff and Appellant.

White, Noon & Oliver, Daniel M. White, Steven G. Amundson and Harry W. Harrison, San Diego, for Defendants and Respondents.

HUFFMAN, Acting P.J.

In this case we are required to consider the interplay of Code of Civil Procedure² section 364, subdivisions (a), (d) and (e), a MICRA notice provision, and section 474, respecting the naming of Doe defendants, on the issue of whether the section 364 requirement of giving notice of intent to commence a medical malpractice action, as applied to known potential defendants, means that no such 90-day notice need be given to potential Doe defendants, nor must a shell medical malpractice complaint naming Doe defendants be filed, in order to avoid the loss of a claim due to untimeliness, as against any such potential Doe defendants. These issues arise in plaintiff and appellant Claudia Camarillo's complaint for legal malpractice against defendant attorneys Robert F. Vaage and Debra A. Morse (Defendant Attorneys). Camarillo claims they committed professional negligence by failing to make a timely filing of a Doe defendant complaint to preserve a potential medical malpractice action against the delivery doctor at the birth of Camarillo's child, Francisco, because their actual timely filing of a notice of intent to commence a medical malpractice action against certain other medical defendants involved in the delivery was insufficient to do so. (§§ 340.5, 364, 474.) Such a potential lawsuit, if filed, would have sought damages on Camarillo's own behalf for medical negligence for the treatment she received during the delivery, from a doctor whose name she did not know when she consulted with Defendant Attorneys at a time shortly before the limitations period was to run on any such personal claim, and while the Defendant Attorneys were considering whether to take her case.

On the day set for trial of the subject legal malpractice action, Defendant Attorneys renewed a prior motion for summary judgment, relying on their interpretation of section 364 and also on a newly reached evidentiary stipulation about their lack of knowledge at all relevant times of the identity of the delivery doctor. (§ 437c, subd.(c).) The motion was granted and Camarillo appeals. Based upon her statutory interpretation of sections 364 and 474, and upon case law such as Grimm v. Thayer (1987) 188 Cal.App.3d 866, 233 Cal.Rptr. 687 (Grimm), disapproved in part in Woods, supra, 53 Cal.3d 315, 328, footnote 4, 279 Cal.Rptr. 613, 807 P.2d 455, she contends her medical malpractice claim against that delivery doctor was negligently lost, despite the serving of a notice of intent to commence action upon other known defendants, and thus there should be triable issues of material fact as to the alleged legal malpractice or breach of fiduciary duty toward her by Defendant Attorneys.

We conclude that section 364, subdivisions (d) and (e), and section 474, read together, provide a workable and common sense rule that serves to extend the applicable statute of limitations against an unknown defendant when a section 364, subdivision (a) notice is appropriately served, according to the overall statutory scheme, upon known potential defendants in the medical malpractice context. Moreover, the Grimm, supra, 188 Cal.App.3d 866, 233 Cal.Rptr. 687, case authority survived its partial disapproval in this respect. (Woods, supra, 53 Cal.3d at p. 328, fn. 4, 279 Cal.Rptr. 613, 807 P.2d 455.) Accordingly, we affirm the defense summary judgment in this legal malpractice case and also deny the motion for sanctions on appeal filed by Defendant Attorneys.

FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 1998, Camarillo gave birth to her son at Scripps-Mercy Hospital (the hospital). She had received prenatal care from the Logan Heights Family Health Center (the health center). During the delivery, her sister-in-law made a home video. This home video showed the actions and face of the delivery doctor as he applied traction to the head of the baby as it emerged from the birth canal, and showed the doctor was applying some force and a twisting motion during the delivery process. During the delivery, Camarillo was concerned that excessive force was being applied. After the birth, it was discovered that the baby had sustained nerve damage to the brachial plexus and his left arm was paralyzed.

The week before the one-year anniversary of the birth, Camarillo contacted the law offices of Defendant Attorneys to explore filing a claim for her son against the hospital, health center, and doctors involved. On August 2, 1999, the Defendant Attorneys viewed the home video with her and examined the medical records that she had brought along to the appointment. They recognized that Camarillo might have her own individual claim as well, and that her statute of Limitations of one year was about to run (Aug. 9, 1999, a Monday). A longer limitations period would apply to an action brought by her son. (§ 340.4.)

Defendant Attorney Morse wrote a memo to Defendant Attorney Vaage, dated August 4, 1999, stating that she thought they should preserve the impending statute for Camarillo, as against the hospital and the health center, and noted further: "Unfortunately, must probably name the physician as well, although I'm having difficulty ascertaining his identity. She (Camarillo) doesn't remember."³ The same date, August 4, 1999, Morse sent a letter entitled "Notice of Intention to Commence Action (Code of Civil Procedure section 364)" (the section 364 notice) to the health center and the hospital. No letter was sent to the (unknown) delivery doctor or any other individual doctor. In her deposition, Camarillo contended she gave the attorneys a document identifying the birth attendant as Dr. Larry Flickinger, but the attorneys denied receiving such a document.

Subsequently, on September 25, 1999, Defendant Attorney Morse sent Camarillo a certified letter advising her the law firm was declining to represent her in any potential medical malpractice action she might pursue regarding her own injuries. The letter advised her that the statute of limitations applicable to her injuries was tolled by the section 364 notice of August 4,1999, but that she only had 90 days from the mailing of the notice to file a complaint for medical malpractice (until early Nov. 1999). She was advised to seek advice of other counsel immediately.

On September 29, 1999, after receiving this letter, Camarillo telephoned Defendant Attorney Morse to discuss it. Camarillo's deposition states that Morse told her she and her son did not have a good case, and the delivery doctor was a nice guy. Defendant Attorney Morse made notes of the conversation to the effect that Camarillo understood the conversation about the limitations period and filing requirements.⁴

Camarillo contacted another attorney eight months later. In her deposition, she stated she had not filed a complaint within 90 days of the section 364 notice because she was upset Defendant Attorneys had decided not to proceed with her case.

On September 19, 2000, Camarillo filed this action for professional negligence against Defendant Attorneys. Her single cause of action raised theories of legal malpractice and breach of fiduciary duty, on the basis that the section 364 notice had failed to give the statutorily required notice to any individual doctor, and thus by the time the September 25, 1999 letter declining to take the case was sent, all of Camarillo's claims for damages against all doctors in the world for professional negligence in handling the birth had become time-barred.

The parties conducted extensive discovery, seeking medical records to establish who had been the delivery doctor and seeking expert opinion on the conduct of the delivery as shown by the records and the home video. Defendant Attorneys then brought a motion for summary judgment, which was denied due to a factual conflict about the identity of the delivery doctor. The order denying the motion also referred to a triable issue about the identity of the doctor, due to Defendant Attorneys' action in telling Camarillo the doctor seemed to be a nice person, in connection with refusing to take the case.

The matter was set for trial on September 10, 2001, and various evidentiary issues were addressed, prior to consideration of motions in limine and other pretrial matters. Witnesses were called, including Dr. Flickinger and another doctor ultimately identified as the delivery doctor, Dr. Salzetti. On that day, plaintiffs attorney entered into a stipulation with Defendant Attorneys and their counsel that Dr. Flickinger was not the delivery doctor, and based on their testimony, Defendant Attorneys had not known at any relevant time who that doctor was.

Accordingly, Defendant Attorneys were allowed to renew their previously denied motion for summary judgment, based on the existence of new or different facts, the testimony and the evidentiary stipulations of September 10, 2001 before the trial court (as summarized above; § 1008, subd. (b)). The court then found there was no triable issue of material fact in this action and that Defendant Attorneys were entitled to summary judgment as a matter of law, for the following specified reasons:

"1. It is established by stipulation of the parties that Larry Dean Flickinger, M.D., was not the delivery doctor; [¶] 2. It is established by stipulation of the parties that neither defendant knew the identity of the delivery doctor prior to the dissemination of defendants' letter of September 25, 1999, informing plaintiff that defendants would not take plaintiffs case. [¶] 3. P...