Jones v. Catholic Healthcare West

• Decision Date: 31 January 2007
• Docket Number: No. C052039.,C052039.
• Citation: 147 Cal.App.4th 300,54 Cal.Rptr.3d 148
• Court: California Court of Appeals Court of Appeals
• Parties: Joy R. JONES, Plaintiff and Appellant, v. CATHOLIC HEALTHCARE WEST et al., Defendants and Respondents.

54 Cal.Rptr.3d 148

147 Cal.App.4th 300

Joy R. JONES, Plaintiff and Appellant, v. CATHOLIC HEALTHCARE WEST et al., Defendants and Respondents.

No. C052039.

Court of Appeal, Third District.

January 31, 2007.

Jay-Allen Eisen, C. Athena Roussos, Sacramento; Law Offices of Kenneth N. Meleyco and Kenneth N. Meleyco, Stockton, for Plaintiff and Appellant.

Low McKinley Baleria, Donna W. Low, Joseph M. Weber, and Paul R. Baleria, Sacramento, for Defendants and Respondents.

CANTIL-SAKAUYE, J.

Plaintiff Joy R. Jones sued defendants Catholic Healthcare West and St. Joseph's Medical Center (St. Joseph's) for personal injuries she suffered while hospitalized in May 2002. Defendants moved for summary judgment on grounds Jones's action was barred by the statute of imitations set forth in Code of Civil Procedure section 340.5,¹ and the purported notice of intent to sue which Jones faxed to St. Joseph's president on February 2, 2004, did not extend the time within which to file an action against defendants. The court granted summary judgment and Jones appeals.

Jones argues her complaint was timely as a matter of law because: (1) the parties entered into a series of tolling agreements that extended the one-year statute of limitations under section 340.5 through January 31, 2004; and (2) her February 2, 2004, letter of intent to sue effectively tolled the statute of imitations for 90 days based on the plain language of section 364. Jones does not challenge the portion of the court's ruling that there were triable issues of fact whether an earlier letter constituted a notice of intent to sue, as argued by defendants. However, she emphasizes the correctness of that ruling as a back-up argument. We conclude the trial court misconstrued section 364 and erred in granting defendants' motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 20, 2002, Jones underwent total hip replacement surgery at St. Joseph's. While hospitalized following surgery, Jones fell in her hospital room on May 21, 2002, and suffered injuries to her jaw and teeth. Her complaint alleges the fall was caused by the nursing staffs negligence.

On May 6, 2003, Jones sent a letter to Don Wiley, the president of St. Joseph's Medical Center, describing the circumstances surrounding the fall and asking the hospital to "assume financial responsibility for the injuries that occurred...." She also asked Wiley to contact her attorney within 10 days in order to "decide on an appropriate course of action." Jones attached four pages of answers to form interrogatories which detailed her injuries and medical treatment to date.

On May 20, 2003, Jones's attorney, Donald West, transmitted a tolling agreement to Wiley for his signature. The agreement extended beyond the one-year limitations period the time within which to serve notice of intent to sue under the Medical Injury Compensation Reform Act (MCRA) to August 21, 2003, to give the parties "time to try to resolve by settlement any disputes between them...." The tolling agreement referenced the personal injuries suffered by Jones as a result of her fall on May 21, 2002. Wiley signed the tolling agreement.

On August 6, 2003, West faxed Wiley 14 pages of Jones's medical records and asked for a 60-day extension of the tolling agreement in order to obtain the rest of Jones's records.

West sent Wiley a second tolling agreement by fax and mail on August 20, 2003, which extended the time within which to serve a notice of intent to sue under MICRA to October 21, 2003. Wiley signed the agreement.

West corresponded with Wiley again on October 20, 2003, and asked him to sign a third tolling agreement extending the time within which to serve a notice of intent to sue to January 31, 2004. Wiley signed the agreement as requested.

On January 26, 2004, West faxed Wiley a fourth tolling agreement which Wiley did not sign. That agreement would have extended the filing date to April 30, 2004.

On February 2, 2004, West faxed Wiley a letter which read in part: "This letter shall serve as notice, in accordance with Section 364 of the Code of Civil Procedure, that Joy Jones will file suit against you for damages resulting from her personal injuries of May 21, 2002. The legal basis for this action will be the negligent failure to properly hire, train, and supervise nursing staff that resulted in negligent post-operative supervision and care of Ms. Jones causing her fall and injuries. [¶] Joy Jones will allege and prove losses and injuries, as a proximate result of the aforementioned professional negligence, regarding her jaw fracture, TMJ, and dental injuries, detailed in the medical records already provided to you." Defendants do not dispute Wiley received actual notice of Jones's claim via fax on February 2, 2004.

Jones filed her complaint on April 28, 2004. Defendants' answer raised the statute of limitations as an affirmative defense.

Defendants asserted in their motion for summary judgment that: (1) Jones provided notice under section 364 on May 6, 2003, rendering the subsequent notice a nullity; and (2) her "ostensible" notice faxed on February 2, 2004, did not comply with the requirements of sections 364 and 1013, subdivision (e), and California Rules of Court, rule 2008. They argued Jones's complaint was barred by section 340.5 because it was filed "well after the expiration of the last tolling agreement between the parties."

Jones disputed defendants' claim the May 6, 2003 letter was a notice of intent to sue, arguing there was nothing in the record to show it was intended for that purpose. With respect to the February 2, 2004 letter, Jones maintained section 364 did not require compliance with section 1013, subdivision (e) and allowed service of notice of intent to sue by other means. Jones also argued that defendants had waived or were equitably estopped from complaining about the manner of service because the parties had established a course of conduct in which service by fax was used and accepted by defendants.

The court granted summary judgment. It rejected defendants' argument the May 6, 2003 letter constituted notice of intent to sue as a matter of law, finding, at minimum, there was a triable issue of fact regarding: "1) whether the notice was intended to be the § 364 notice, and 2) whether defendant should be estopped from asserting this contention due to its signing of the tolling agreements." However, as to the February 2, 2004, letter the court found that "[s]ince plaintiff failed to comply with the provisions of CCP §§ 1010, et seq., the notice did not act to toll the statute of limitations." It specifically found Jones failed to demonstrate "there was, in fact, a course of conduct by which the parties were communicating by fax." The court denied Jones's ex parte motion for reconsideration as untimely.

DISCUSSION

I Standard of Review

"[S]ummary judgment is granted if all the submitted papers 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. (§ 437c, subd. (c).) A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established. (§ 437c, subd. [ (p) ](2); [citation].) Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. [Citation.] In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. [Citation.] We must determine whether the facts as shown by the parties give rise to a triable issue of material fact. [Citation.]" (Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1558, 28 Cal. Rptr.2d 70 (Hanooka).) "We also conduct de novo review of the trial court's resolution of the underlying issues of statutory construction. [Citation.]" (Barner v. Leeds (2000) 24 Cal.4th 676, 683, 102 Cal. Rptr.2d 97, 13 P.3d 704.)

II Notice of Intent To Sue Under Section 364

A. The Relevant Statutes:

Section 364 requires that a plaintiff give a health care provider 90 days' prior notice before commencing an action for professional negligence. The question whether Jones's complaint was timely when filed on April 28, 2004, turns on the validity and effectiveness of the notice of intent to sue faxed by attorney West to Wiley on February 2, 2004.

Section 364 reads in relevant part:

"(a) No action based upon the health care provider's professional negligence may be commenced unless the defendant has been given at least 90 days' prior notice of the intention to commence the action.

"(b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.

"(c) The notice may be served in the manner prescribed in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.

"(d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice...."

Section 364, subdivision (c) refers to the chapter of the Code of Civil Procedure pertaining to notices, filing and service of papers. (§§ 1010, et seq.) Defendants claimed and the court agreed that Jones was subject to the requirements for service by facsimile transmission set forth in section 1013, subdivision (e), which reads in part: "Service by facsimile transmission shall be permitted only where the parties agree and a written confirmation of that agreement is made...." (See also, Cal. Rules of Court, former rule 2008(b), now rule 2.306.)

B. The Letter Faxed on February 2, 2004:

January 31, 2004, the deadline for serving a notice of intent to sue under the parties' third tolling agreement, was a Saturday. The following day, ...