Graham v. Hansen

• Decision Date: 19 February 1982
• Citation: 128 Cal.App.3d 965,180 Cal.Rptr. 604
• Court: California Court of Appeals Court of Appeals
• Parties: Lucille GRAHAM, Plaintiff and Appellant, v. James T. HANSEN, M.D. et al., Defendants and Respondents. Civ. 20734.

Page 604

180 Cal.Rptr. 604

128 Cal.App.3d 965

Lucille GRAHAM, Plaintiff and Appellant, v. James T. HANSEN, M.D. et al., Defendants and Respondents.

Civ. 20734.

Court of Appeal, Third District, California.

Feb. 19, 1982.

Porter, Scott, Weiberg & Delehant, James K. Mirabell and Melvin E. Raatz, Sacramento, for plaintiff and appellant.

Wilke, Fleury, Hoffelt & Gray, Scott L. Gassaway and Alan G. Perkins, Sacramento, for defendants and respondents.

PUGLIA, Presiding Justice.

Plaintiff appeals from a judgment of dismissal entered after the trial court granted defendants' motion for summary judgment. We affirm.

Plaintiff filed a complaint for medical malpractice in November 1977. The complaint alleges that in the summer of 1975, plaintiff was suffering from a gastronomic disorder. Her physician, Dr. Anthony, referred plaintiff to defendants for treatment.

Co-defendant Dr. James Hansen examined plaintiff on July 29, 1975, and diagnosed plaintiff's ailment as a possible ulcer. He requested plaintiff check into Roseville Memorial Hospital on August 1, 1975, so that an internal gastric photographic examination (esophagogastroduodenoscopy) could be performed. This procedure involves passing a scope through the oral cavity to view for ulcers. The examination was being performed on an out-patient basis and it was anticipated the procedure would take approximately one-half hour to complete. Dr. Hansen assured plaintiff the procedure involved no risk.

During the examination, plaintiff's esophagus was perforated, and complications resulted. Plaintiff remained in the hospital for several months. Her complaint alleges the examination was negligently performed and caused her injury.

The physician-patient relationship between plaintiff and defendants terminated in November 1975. Plaintiff filed her action in November 1977, two and one-quarter years after the alleged negligent conduct. Her only pleaded excuse for the late filing is that she relied on statements and representations made to her by defendants and thus failed to seek other advice or ascertain the true cause of her condition until within one year prior to filing her complaint.

Defendants answered, denying the allegations contained in the complaint and alleging, as an affirmative defense, the running of the statute of limitations, claiming plaintiff had not filed her action within one year after actual or constructive discovery of her injury. (See Code Civ.Proc., § 340.5; hereafter, all statutory references are to sections of the Code of Civil Procedure unless otherwise indicated.

After completion of substantial discovery, defendants moved for summary judgment on the ground the action was barred by the statute of limitations. They asserted plaintiff was aware of a right of action premised on the theory of lack of informed consent as soon as she realized she had been injured and, contrary to Dr. Hansen's assurance, the procedure had not been completely safe. Defendants argued that as the statute of limitations had run as to this theory of malpractice, the limitations period had expired as to all theories of malpractice.

Plaintiff opposed the motion, insisting there was a triable issue of fact as to the discovery date for medical malpractice premised on lack of informed consent; alternatively, plaintiff argued that even if there were no issue of fact in this regard, defendants were incorrect in their assertion that if the statute of limitations had run as to one theory of malpractice, it had run as to all other possible theories. In ruling on the motion, the trial court declared any claim based on lack of informed consent was barred by the statute of limitations. Nonetheless, the court denied the motion for summary judgment, impliedly rejecting the theory urged by defendants, and allowed the action to proceed on plaintiff's claim of negligence in the performance of the examination.

Nearly one year later, defendants filed what they describe as a combined motion for reconsideration and second motion for summary judgment. Defendants claimed further discovery had revealed "new facts" which conclusively demonstrated plaintiff could not prove her allegation that she had discovered her cause of injury within one year prior to the filing of her complaint. Plaintiff opposed the motion, asserting (1) the motion for reconsideration was not timely filed; (2) the new facts were insufficient to support a motion for reconsideration, and (3) triable issues of fact existed as to the date of plaintiff's discovery and the possible tolling of the statute of limitations. Following hearing and argument, the trial court, without comment, granted the motion for summary judgment and dismissed the action.

I

Before reaching the merits of the order granting summary judgment, we address plaintiff's contention that the trial court erred in entertaining defendants' combined motion for reconsideration and summary judgment. Plaintiff points out that section 1008, subdivision (a), requires all motions for reconsideration be made within 10 days of the date the party seeking reconsideration received notice of the court's order. ¹ Plaintiff contends the second motion for summary judgment was, on its face, simply an attempt to gain reconsideration of the denial of the first motion for summary judgment. Since the second motion was not filed within 10 days after defendants received notice of the order denying the first motion, plaintiff contends the second motion is untimely.

While plaintiff accurately characterizes section 1008, subdivision (a), according to its effect, the fact is defendant's second motion for summary judgment, regardless of its label, was not a motion for reconsideration but rather a subsequent application for summary judgment. (Cf. Harth v. Ten Eyck (1941) 16 Cal.2d 829, 832-833, 108 P.2d 675.) The statutory provisions relating to motions for renewal (i.e., subsequent applications for the same order) are found in section 1008, subdivision (b). These provisions contain no requirement that a motion for renewal be made within the 10-day time period as is required for motions for reconsideration.

Prior to the enactment of section 1008, subdivision (a) (Stats. 1978, ch. 631, § 2, eff. Jan. 1, 1979), there was no statutory authorization for a motion for reconsideration, even though such motions were regularly made and heard. (See San Francisco Lathing, Inc. v. Superior Court (1969) 271 Cal.App.2d 78, 81, 76 Cal.Rptr. 304.) However, only the moving party was permitted to request reconsideration of a ruling on its motion, and such a request could only be made when the motion had been denied. (See Harth v. Ten Eyck, supra, 16 Cal.2d at pp. 832-833, 108 P.2d 675; Dunas v. Superior Court (1970) 9 Cal.App.3d 236, 239, 87 Cal.Rptr. 719.) The sole remedy of a nonmoving party was a motion to vacate pursuant to section 473, which permits the court to relieve a party from an order taken against that party through his mistake, inadvertence or excusable neglect. (See San Francisco Lathing, Inc. v. Superior Court, supra, 271 Cal.App.2d at p. 82, 76 Cal.Rptr. 304.)

Newly enacted section 1008, effective January 1, 1979, contains provisions relating both to motions for reconsideration and for subsequent applications for the same order. (Stats. 1978, ch. 631, § 2.) Subdivision (a) of that section now permits any affected party to seek reconsideration of a court's order, regardless of how the court ruled on the motion, provided the motion is based upon an alleged "different" set of facts and is made within 10 days of knowledge of the court's order.

In section 1008, subdivision (b), however, the Legislature left the prior law virtually unchanged with respect to subsequent applications by the moving party for the same order. ² As did its predecessor section, subdivision (b) applies to renewals based upon "new" facts and imposes no time limitations on such motions. We have found nothing in the legislative history to indicate any such limitation was intended.

Indeed, to place a time limitation on motions for renewal would produce a result inimical to the efficient administration of justice. When "new" facts come to the attention of the moving party sufficient to justify renewal of a motion previously made, it would be nonsensical to disallow the later motion simply because discovery of the "new" facts was not made within 10 days after knowledge of the court's order on the original motion. Trial courts should be allowed to review, reweigh and modify an order when new facts are presented which demonstrate the need to do so. To apply a time limitation beyond which the court lacks power so to act would needlessly burden the courts and the litigants with plenary trials that were otherwise capable of summary resolution. We cannot conceive that the Legislature intended such a result. It is apparent to us that the 10-day limitations period for motions for reconsideration based on "different" facts (§ 1008, subd. (a)) describes a remedy wholly discrete from the motion for renewal based on "new" facts long provided by statute and presently found in the recently enacted section 1008, subdivision (b).

Plaintiff also argues the claimed "new" facts (plaintiff's answer to an interrogatory and a declaration by plaintiff's counsel) were insufficient to support a motion for renewal. Whether the "new" facts alleged on a motion for renewal are sufficient to satisfy the requirements of section 1008, subdivision (b), is a question confided to the sound discretion of the trial court, with the exercise of which we will not interfere absent an obvious showing of abuse. This record manifests no such abuse.

II

Turning to the merits of the ruling under review, we are satisfied the trial court correctly determined the action was barred by the statute of limitations as a matter of law.

The limitations statute governing medical malpractice actions is section 340.5, which reads in part: "In an action for injury or...