Mandjik v. Eden Township Hospital Dist.

• Decision Date: 31 March 1992
• Docket Number: No. A051360,A051360
• Citation: 4 Cal.App.4th 1488,6 Cal.Rptr.2d 582
• Parties: Siegrid MANDJIK et al., Plaintiffs and Appellants, v. EDEN TOWNSHIP HOSPITAL DISTRICT, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 582

6 Cal.Rptr.2d 582

4 Cal.App.4th 1488

Siegrid MANDJIK et al., Plaintiffs and Appellants, v. EDEN TOWNSHIP HOSPITAL DISTRICT, Defendant and Respondent.

No. A051360.

Court of Appeal, First District, Division 2, California.

March 31, 1992.

Review Denied June 18, 1992.

Reg J. Lorman, San Jose, for plaintiffs and appellants.

Mark G. Bonino, Lawrence M. Guslani, Susan H. Handleman, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, Jolie Krakauer, Martin, Ryan & Andrada, Oakland, for defendant and respondent.

BENSON, Associate Justice.

Plaintiffs Siegrid and Stefan Mandjik, a married couple, appeal from the trial court's order and judgment of dismissal, which was entered after the trial court sustained the general demurrer of defendant Eden Township Hospital District without leave to amend. We reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is an action for medical malpractice arising out of Siegrid Mandjik's hospitalization at defendant's hospital from July 2, 1987, through August 20, 1987. Plaintiffs allege that on July 22, 1987, as a direct and proximate result of defendant's negligence, Siegrid Mandjik suffered a pulmonary embolism and cardiac failure, resulting in damages to plaintiffs. On July 1, 1988, plaintiffs sent defendant notice of their intent to commence litigation (hereafter 364 notice). (See Code Civ.Proc., § 364, subd. (a).) ¹ The 364 notice stated the events in question "arose during [Siegrid Mandjik's] stay at Eden Valley Hospital during July of 1987."

By letter dated July 15, 1988, defendant, a public entity, treated plaintiffs' 364 notice as a claim for damages under the Tort Claims Act (Gov.Code, § 900 et seq.) ² and returned the claim as untimely "because it was not presented within six months after the event or occurrence as required by law." (See §§ 901, 911.2, 911.3. See also Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 707-708, 263 Cal.Rptr. 119, 780 P.2d 349 (hereafter Phillips ) [public entity must treat 364 notice as a claim under the Tort Claims Act].) Defendant's letter further advised plaintiffs "[y]our only recourse at this time is to apply without delay to the Eden Township Hospital District for leave to present a late claim." (See §§ 911.3, 911.4-912.2.)

On July 21, 1988, plaintiffs submitted an application for leave to present a late claim to defendant. The application was accompanied by a "Claim for Damages." By letter dated August 12, 1988, defendant advised plaintiffs "your Application for Leave to Present Late Claim ... was denied," that their "claim itself has not been considered and cannot be considered," and that they could "petition the appropriate court for an order relieving you from the provisions of Government Code Section 945.4 (Claims presentation requirement.)" (See §§ 911.8, 946.6.)

Plaintiffs proceeded to file a timely application for relief from the claims presentation requirement in the superior court. (See §§ 945.4, 946.6.) At a hearing on April 18, 1989, the court granted relief to Siegrid Mandjik and denied relief to Stefan Mandjik. The court's decision is reflected in a minute order bearing a stamp date of April 21, 1989. For some unexplained reason, plaintiffs' counsel then waited until August 16, 1989, to submit a written order to defendant's counsel for approval as to form. Defendant's counsel approved the order and returned it to plaintiffs' counsel on August 22, 1989. The court signed the order on December 13, 1989.

Less than a month later, on January 10, 1990, plaintiffs filed their complaint in this matter. In their complaint, plaintiffs allege the action was timely filed because "this Court granted Plaintiff Siegrid Mandjik late claim relief pursuant to its Order of December 13, 1989," and, alternatively, because defendant failed to act on their July 21, 1988, claim, entitling both plaintiffs to a two-year statute of limitations.

Defendant filed a general demurrer to plaintiffs' complaint, asserting the complaint was untimely because it was not filed within 30 days of the court's minute order granting Siegrid Mandjik relief from the claims presentation requirement. (See § 946.6, subd. (f).) On June 7, 1990, the trial court sustained defendant's demurrer without leave to amend. The court subsequently entered judgment in favor of defendant, and this appeal followed.

II. STANDARD OF REVIEW

"This appeal is from a judgment of dismissal entered after the trial court sustained defendant's demurrer. Therefore, under settled law, we assume the truth of all properly pleaded material allegations of the complaint and give it a reasonable interpretation by reading it as a whole and its parts in their context." (Phillips, supra, 49 Cal.3d at p. 702, 263 Cal.Rptr. 119, 780 P.2d 349, citations omitted.)

III. DISCUSSION

A. The 30-Day Statute Of Limitations Of Section 946.6, Subdivision (f)

Section 946.6, subdivision (f), provides as follows: "If the court makes an order relieving the petitioner from Section 945.4 [the claims presentation requirement of the Tort Claims Act], suit on the cause of action to which the claim relates shall be filed with the court within 30 days thereafter." In sustaining defendant's demurrer, the trial court ruled "Plaintiff's complaint was not filed within the statutory 30-day period following late-claim relief. GC § 946.6(f). The preparation and filing of a formal order was neither required by the 4/18/89 minute order granting late claim relief, nor by the local rules so as to toll the statutory 30-day period. [Citations.] Plaintiff's complaint filed on 1/10/90 was therefore untimely." Plaintiffs argue this ruling was in error, contending the complaint was timely because it was filed within 30 days of the date the formal order granting Siegrid Mandjik relief was filed. ³

We agree with the trial court's determination the complaint was not filed within the 30-day time period set forth in section 946.6, subdivision (f). The 30-day time period commences when the court "makes an order" granting relief from the claims presentation requirement. (§ 946.6, subd. (f).) Absent a directive in the court's minute order or a local rule requiring that a formal order be prepared, the date the court " 'makes an order' " is the date it enters its minute order granting relief. (County of Nevada v. Superior Court (1986) 183 Cal.App.3d 806, 808-809, 228 Cal.Rptr. 447; Fritts v. County of Kern (1982) 135 Cal.App.3d 303, 306, 185 Cal.Rptr. 212; McHale v. State of California (1981) 125 Cal.App.3d 396, 399, 178 Cal.Rptr. 83.)

The minute order in this case does not direct the preparation of a formal order. Nor does any local rule mandate the preparation of a formal order. To the contrary, Alameda County Superior Court Local Rules, rule 10.8, subdivision (1), provides that where the court does not direct any party to prepare a written order "any party desiring a written order shall within five court days of the hearing submit the proposed order to opposing counsel for signature under the legend 'Approved as Conforming to Court Order.' " (Emphasis added.)

Plaintiffs' counsel offers no explanation whatsoever as to why he failed to follow the local rule and instead waited until August 16, 1989, nearly four months after the court granted Siegrid Mandjik relief from the claims presentation requirement, to submit a proposed order to defendant's counsel. Under these circumstances, the 30-day time period set forth in section 946.6, subdivision (f), began to run on April 21, 1989, the date of the court's minute order. We find the observations of the court in McHale v. State of California, supra, 125 Cal.App.3d at p. 399, 178 Cal.Rptr. 83, to be particularly apt in this regard: "If [plaintiffs'] contentions as to the commencement of the statute of limitations were correct, they would in effect be able to select and determine the date the formal order would be prepared and filed and thereby extend the commencement of the statute of limitations to suit themselves."

Plaintiffs attempt to distinguish the McHale line of cases on several grounds. First, plaintiffs challenge the sufficiency of the court's minute order. Plaintiffs compare the "smooth minutes" in this case to the "rough minutes" considered by the court in Jackson v. Thompson (1941) 43 Cal.App.2d 150, 110 P.2d 470. In Jackson, the court noted "it has been uniformly held that the entry of the court's oral order in the court clerk's 'rough minutes' is not an official record of any character, and until such official entry has been made in the minutes of the court the order granted remains but a mere oral announcement." (43 Cal.App.2d at p. 152, 110 P.2d 470.) We agree with this statement of the law; however, we find it to be inapposite. The "smooth minutes" in this case were officially entered in the minutes of the court: they are signed by the clerk of court, bear the case number "H-139363-3" (the case number assigned to plaintiffs' application for relief from the claims presentation requirement), bear a stamp date of April 21, 1989, and were filed in the court file for Case No. H-139363-3. Hence, there is no basis for plaintiffs' assertion the minute order is somehow insufficient.

Second, plaintiffs argue their counsel believed "that a formal Order was to be prepared" and, therefore, that the trial court should have granted them relief from their counsel's mistake. (See Code Civ.Proc., § 473.) Plaintiffs are mistaken. The 30-day time limit set forth in section 946.6, subdivision (f), is a statute of limitations. "While the procedure for granting relief from the claims statutes is remedial in nature and must be liberally construed in favor of the claimant, such liberality does not extend to the statute of limitations," which is "mandatory and must be strictly complied with." (Rivera v. City of Carson (1981) 117 Cal.App.3d 718, 726, 173 Cal.Rptr. 4, citations omitted. See also Tuolumne Air Service, Inc. v. Turlock Irrigation Dist. (1978) 87 Cal.App.3d 248,...