Hilburger v. Madsen

• Decision Date: 31 January 1986
• Citation: 177 Cal.App.3d 45,222 Cal.Rptr. 713
• Court: California Court of Appeals Court of Appeals
• Parties: Cynthia A. HILBURGER and Thomas Hilburger, Plaintiffs and Appellants, v. John MADSEN, M.D., Francis M. Leake, M.D., Francis M. Leake, M.D., a medical corporation, Defendants and Respondents. Civ. B008459.

Page 713

222 Cal.Rptr. 713

177 Cal.App.3d 45

Cynthia A. HILBURGER and Thomas Hilburger, Plaintiffs and Appellants, v. John MADSEN, M.D., Francis M. Leake, M.D., Francis M. Leake, M.D., a medical corporation, Defendants and Respondents.

Civ. B008459.

Court of Appeal, Second District, Division 5, California.

Jan. 31, 1986.

Wallace J. Manley, Pasadena, for plaintiffs and appellants

Patterson, Ritner, Lockwood, Zanghi & Gartner and Jeralyn Keller, Los Angeles, for defendant and respondent Madsen.

Bonne, Jones, Bridges, Muller & O'Keefe and Lori S. Lippman, Los Angeles, for defendant and respondent Leake.

HASTINGS, Associate Justice.

Plaintiffs/appellants Cynthia A. Hilburger and Thomas Hilburger (appellants) brought a medical malpractice suit against defendants/respondents John Madsen, M.D. (Madsen), Francis M. Leake, M.D. and Francis M. Leake, M.D., a medical corporation (both as Leake). Madsen, joined by Leake, moved to dismiss for failure to prosecute (Code Civ. Proc., § 583, subd. (a)); ¹ the motion was granted. Leake made a motion for summary judgment which was granted. Appellants appeal the subsequent order of dismissal of the suit against Madsen and Leake as well as the summary judgment in favor of Leake.

This case arises out of injuries sustained as a result of the stillborn birth of appellants' full-term baby. The delivery by Caesarean section occurred on September 3, 1980. On February 4, 1981, appellants consulted with an attorney concerning a possible suit against Madsen and Leake. On May 14, 1981, the attorney sent a letter to Madsen and Leake advising them of appellants' possible suit and seeking information regarding respondents' insurance coverage. Receiving no answer to this letter, appellants sent a "Notice of Intention to File Suit" on August 24, 1981. It stated: "This is the 90 day notice pursuant to law." ² Appellants' subsequent complaint was filed on November 25, 1981.

Madsen sought a dismissal under the provisions of then extant section 583, subdivision In support of this motion, Leake submitted a declaration by his attorney, which cursorily repeated the allegations of prejudice stated in Madsen's moving papers.

                (a). 3  In support of his motion to dismiss, Madsen submitted his own declaration and that of his attorney.  In combination their declarations stated that Madsen had been served on February 22, 1984, two years and three months subsequent to the filing of the complaint and three and a half years after the alleged malpractice;  a verified answer to the complaint was filed on April 9, 1984;  a request for statement of damages was served on appellants on April 9, 1984, and, as of May 18, 1984, no response had been received;  he had been severely prejudiced by this delay in that he had been deprived of the opportunity to prepare a viable defense as the witnesses might no longer be identifiable or located, and even if found the passage of time would have clouded their memories;  he had been precluded from preserving available evidence or deposing plaintiffs while their injuries were [177 Cal.App.3d 48] current and verifiable;  this difficulty had been exacerbated by his having moved to Watsonville, California, from where it would be "extremely difficult for him to participate in his own defense";  pertinent medical records were not at his present office;  there had been no settlement negotiations or discovery;  and that it was appellant's burden to show good cause for delay
                

Two days before the hearing on the motion, appellants countered with a declaration from their attorney, Wallace Manley (Manley). It stated that suit was filed on November 25, 1981, and service upon Leake was November 18, 1983, and was attempted without success upon Madsen in Los Angeles on November 18, 1983, and in Monterey County on November 28, 1983. Madsen was finally located in Santa Cruz County and served on February 24, 1984; both Leake and Madsen were granted extensions of time to answer the complaint; an at-issue memorandum was served by mail on May 16, 1984 and filed May 17, 1984, with a counter at-issue memorandum served on May 25, 1984; interrogatories were mailed to both Madsen and Leake on May 24, 1984; Madsen's interrogatories were answered on July 2, 1984, after an extension of time to answer were granted. Furthermore, Manley declared that in early January he received a letter dated January 7, 1982, from a claims service representative from Mutual Protection Trust, the insurance carrier for Madsen and Leake. It advised Manley that an investigation was being undertaken and requested the signing of medical authorization forms. An authorization form was subsequently executed and sent to the claims service representative on March 18, 1982. Between March 11, 1982 and August 6, 1982, Manley had knowledge that an investigation was being conducted by the insurance carrier; he had several phone conversations with the insurance representative regarding appellants' physical and mental conditions; on August 6, 1982, Manley and the representative met in Manley's office. Though no specific offer was made, a possible settlement was discussed and the representative indicated that the Trust would consider a reasonable amount. Discussions regarding settlement continued into 1983. Sometime in August 1982, Manley was advised by the claims representative that the Trust had obtained the medical records involved and was continuing its investigations on behalf of both Leake and Madsen. Manley asserted that service of Leake and Madsen was delayed to allow the insurance carrier to complete its investigation and to attempt settlement without trial. Finally, Manley stated that the press of practice affected his ability to process matters efficiently, but neither Madsen nor Leake had suffered The court granted the dismissal, citing the facts set forth in California Rules of Court, rule 373(e). ⁴

prejudice because the insurance carrier had been informed of the [177 Cal.App.3d 49] suit and involved in investigation six weeks subsequent to the complaint being filed.

Leake moved for summary judgment. He argued that appellants' complaint was barred by the one year statute of limitations imposed by section 340.5, ⁵ since the cause of action accrued when the child was delivered, September 3, 1980. He urged that the May 14, 1981 letter was appellants' "Notice of Intention to File"; and since it was not within the last 90 days of the one-year period, they were not entitled to an extension of the statute, as provided by section 364, subdivision (d). Appellants countered that the "Notice of Intention to File" served on August 24, 1981, was within the last 90 days of the statutory period; therefore, section 364, subdivision (d) applied. They assert that the filing of the complaint on November 25, 1981, "under the circumstances" should be considered timely. In Mrs. Hilburger's declaration, appellants also argued that the cause of action did not accrue until January or February 1981 when appellants recovered sufficiently from the trauma of their loss to be able to meet with their attorney. The court accepted Leake's argument and granted the motion for summary judgment on the ground that the one year statute of limitations imposed by section 340.5 barred the suit.

DISCUSSION

The 583(a) Dismissal. In the recent case of Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1021, 213 Cal.Rptr. 712, the opinion notes "[t]he abundant precedent generated by section 583(a)" decisions that have created different policy considerations confusing to the trial courts. Dismissals have often been affirmed based on the principal theory that the section was designed to prevent unreasonable delays in litigation, a concept that grants considerable discretion to the trial courts. On the other hand, dismissals have frequently been reversed because some appellate courts place more emphasis on the rule that favors resolution of a case on its merits when there has been some showing of excusable delay or activity in prosecuting the action. Hurtado all but discards the unreasonable delay concept ⁶ and determines that the basic reason for the section was to prevent prejudice to the defendant. The opinion, after stating its reasons disfavoring the unreasonable delay theory, states, "We are thus left with 'prejudice to the defendant' as the major rationale underlying the two-year dismissal statute." Since Hurtado, several appellate decisions have followed suit and have reversed dismissals where there had been delay in the prosecution (although some pretrial activity had occurred) but defendant has not been prejudiced. (See Troupe v. Courtney (1985) 169 Cal.App.3d 930, 215 Cal.Rptr. 703.)

In our present case, if we follow the reasoning in Hurtado, reversal is quite apparent. The insurance carrier for both Madsen and Leake were fully informed of the suit at an early date, had investigated appellant's allegations and participated in settlement negotiations. Nothing in Madsen's or Leake's declarations rebut this fact. Both Leake's and Madsen's declarations offer general and well-worn allusions to prejudice (see United Farm Workers National Union v. International Brotherhood of Teamsters (1978) 87 Cal.App.3d 225, 236, 150 Cal.Rptr. 761), but the involvement of the insurance carrier and the early notices of intentions to sue negates such a claim. (See Troupe v. Courtney, supra, 169 Cal.App.3d 930, 215 Cal.Rptr. 703.) Furthermore, there was no finding by the court of prejudice. The court's minute order referred solely to the factors listed in California Rules of Court, rule 373(e), quoted in footnote four, supra. Rule 373(e) fails to touch upon the prejudice suffered by a defendant.

The latest Supreme Court case on the subject, Blank v. Kirwan (1985) 39 Cal.3d 311, 216 Cal.Rptr. 718, 703 P.2d 58, cited to us by respondents after oral argument, places Hurtado in a different light. The opinion states (page 332, 216 Cal.Rptr. 718, 703 P.2d 58): "P...