Harman v. Mono General Hospital

• Decision Date: 10 May 1982
• Citation: 182 Cal.Rptr. 570,131 Cal.App.3d 607
• Court: California Court of Appeals Court of Appeals
• Parties: Lucille HARMAN, Administratrix of the Estate of Jerome Harman, Deceased, Lucille Harman, individually, Jeffrey Stich, Harvey Harman, Judy Stich Harman, and Jill Robin Harman, Plaintiffs and Appellants, v. MONO GENERAL HOSPITAL, Charles Lear, M. D., Loma Linda University Medical Group, Inc., Universal Health Care, and Universal Medical Group, Inc., Defendants and Respondents. Civ. 19840.

Page 570

182 Cal.Rptr. 570

131 Cal.App.3d 607

Lucille HARMAN, Administratrix of the Estate of Jerome Harman, Deceased, Lucille Harman, individually, Jeffrey Stich, Harvey Harman, Judy Stich Harman, and Jill Robin Harman, Plaintiffs and Appellants, v. MONO GENERAL HOSPITAL, Charles Lear, M. D., Loma Linda University Medical Group, Inc., Universal Health Care, and Universal Medical Group, Inc., Defendants and Respondents.

Civ. 19840.

Court of Appeal, Third District, California.

May 10, 1982.

As Modified May 18, 1982.

Kanarek & Berlin, Irving Kanarek and Sheldon Berlin, Van Nuys, for plaintiffs and appellants.

Hagenbaugh & Murphy, Raymond R. Moore and Mary E. Porter, Los Angeles, for defendants and respondents.

SPARKS, Associate Justice.

In this case we consider the relationship between a proceeding for relief from filing a claim under the Tort Claims Act and the doctrine of collateral estoppel. The superior court entered a judgment of dismissal of plaintiffs' wrongful death action after it had granted defendants' motion for summary judgment and had denied plaintiffs' motion for a new trial. The basis of the summary judgment was the failure of plaintiffs to present a timely claim for wrongful death to a public entity. (Gov.Code, § 911.2.) Defendants claimed that this failure, and inferentially the status of Mono General Hospital as a public entity, had been determined in an ancillary proceeding. The motion for summary judgment was therefore brought "upon the ground that issues necessary to plaintiffs' cause of action have been adjudicated against them in a prior action, and that plaintiffs are therefore conclusively bound by said judgments [sic] under the provisions of C.C.P. Section 1908(a)(2)." ¹ Plaintiffs appeal, contending that the motion for summary judgment was improperly granted because the record does not establish that defendants were public agencies or employees of a public agency. As a corollary, plaintiffs contend that the motion for a new trial was improperly denied because their papers in support of the motion also established that defendants are not public agencies or employees of public agencies. We mention in the text but do not decide two additional contentions: first, plaintiff Lucille Harman was not properly served with the motion for summary judgment; second, the trial judge who heard the motion for a new trial was incompetent on the day of the hearing.

We hold that the trial court mistakenly invoked the doctrine of collateral estoppel when it ruled that defendant Mono General Hospital had been conclusively determined to be a public entity in a prior proceeding. Since that prior proceeding also did not adjudicate the public entity status of any of the other defendants, the motion for summary judgment should have been denied. Accordingly, we reverse the judgment of dismissal.

I

The plaintiffs' decedent, Jerome Harman, died as a result of an automobile accident which occurred in Mono County. At the time of the accident Harman was taken to defendant Mono General Hospital for treatment and was subsequently transferred by ambulance to Reno, Nevada. He suffered a cardiac arrest shortly after his arrival in Reno and died. Plaintiffs contend that the death was due to the negligence of the defendants in diagnosing and treating Mr. Harman.

Nearly one year after the accident plaintiffs, decedent's heirs and his personal representative, filed their complaint for wrongful death in the Superior Court of San Francisco. Named as defendants in that action were Mono General Hospital, Charles Lear, M. D., Mono County Ambulance and a hundred does. Loma Linda University Medical Group, Inc., Universal Health Care, and University Medical Group, Inc. were thereafter served as doe defendants. ² A few days after filing suit, plaintiffs applied to Mono County for permission to file a late claim against a public entity. The Mono County Board of Supervisors denied the application and plaintiffs petitioned the Superior Court of Mono County for relief from the requirement of filing a claim with a public entity. (Gov.Code, § 946.6.) The superior court denied the petition and denied also a subsequent motion for reconsideration. No appeal was taken.

After the petition for relief from the claim filing statutes was denied, plaintiffs' attorney, Elizabeth W. Walker, moved to withdraw as attorney in the San Francisco County wrongful death action. The court granted the motion to withdraw. However, Walker had erroneously limited her motion to plaintiff Lucille Harman. When she discovered her oversight, attorney Walker returned to the San Francisco County Superior Court for permission to withdraw as attorney for the remaining plaintiffs, but by that time the court had granted defendants' motion to transfer the case to Mono County.

When the case was transferred to Mono County the defendants moved for summary judgment, serving their notice of motion on attorney Walker and on each of the plaintiffs individually by mail. The plaintiffs did not appear at the hearing on the motion for summary judgment and the motion was granted. Attorney Irving Kanerek moved for a new trial on behalf of plaintiffs. Although by that time attorney Walker had filed a petition in Mono County for permission to withdraw as attorney, attorney Kanerek had not been formally substituted as attorney for plaintiffs. The defendants objected that attorney Kanerek had no standing to move for a new trial. The motion for a new trial was denied and plaintiffs appeal from the ensuing judgment of dismissal.

II

A motion for summary judgment is designed to test whether there is sufficient evidence upon which a claim or defense may be sustained. "Such motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c.) However, "... summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Ibid.) Where, as here, the motion for summary judgment is unopposed, the moving party may still not be granted summary judgment unless his papers clearly establish that there is no triable issue of fact and he is entitled to judgment. (de Echeguren v. de Echeguren (1962) 210 Cal.App.2d 141, 148, 26 Cal.Rptr. 562.)

The underlying basis for defendants' motion for summary judgment was the failure of the plaintiffs to file a claim with a public entity. Government Code section 911.2 requires that a claim relating to a cause of action for death be presented to a public entity no later than 100 days after accrual of the cause of action. Where such a claim is not so presented, the claimant may apply to the public entity for leave to file a claim if he or she does so within one year of the accrual of the cause of action. (Gov.Code, § 911.4.)

The presentation of a claim against a public entity is a prerequisite to the maintenance of a suit against that entity. (Gov.Code, § 945.4; Ruffino v. City of Los Angeles (1964) 226 Cal.App.2d 67, 68, 37 Cal.Rptr. 765.) It is also a condition precedent to a tort action against a public employee (Gov.Code, § 950.2; Williams v. Hovarth (1976) 16 Cal.3d 834, 838, 129 Cal.Rptr. 453, 548 P.2d 1125.) Where a timely claim is not presented, the claimant must apply for leave to present a late claim. (Gov.Code, § 946.6, subd. (a).) Where an application for leave to file a late claim is denied or deemed denied then the claimant must petition the court for relief from the bar to sue because of the nonpresentation of a claim. (Gov.Code, § 946.6.) The denial of such a petition is a final determination of the claimants' rights against the public entity, and is an appealable order. (Moore v. Morhar (1977) 65 Cal.App.3d 896, 903, fn. 8, 135 Cal.Rptr. 626; Docktor v. City of Santa Ana (1968) 261 Cal.App.2d 69, 74, 67 Cal.Rptr. 686.)

Plaintiffs failed to present a claim to Mono County within 100 days of the accrual of their cause of action for wrongful death. They applied for permission to present a late claim nearly one year after the accrual of the cause of action and that application was denied. They petitioned the superior court for relief from the requirement of presenting a claim and that petition was also denied. No appeal was taken and the denial of the petition for relief became final. Plaintiffs are therefore precluded, as a matter of law, from maintaining a suit against a public entity. (See Ruffino v. City of Los Angeles, supra, 226 Cal.App.2d at p. 70, 37 Cal.Rptr. 765.)

III

On appeal, defendants reassert their position that plaintiffs are collaterally estopped from maintaining this action because the issue of compliance with the Tort Claims Act has been conclusively decided against them. As we shall explain, the issue of whether these defendants were public agencies or employees of a public agency was not litigated and determined in the prior proceeding. The doctrine of collateral estoppel, therefore, does not apply and the prior judgment cannot be used to defeat the present action.

"The doctrine of res judicata," the court observed in Henn v. Henn (1980) 26 Cal.3d 323, 329-330, 161 Cal.Rptr. 502, 605 P.2d 10, "has long been recognized to have a dual aspect. 'In its primary aspect the doctrine of res judicata operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.' Also, the doctrine comes into play in situations involving a second suit, not necessarily between the same parties, which is based upon a different cause of action. There '[t]he prior judgment is not a complete bar, but it "operates [against the party against whom it was obtained] as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." ' [...