Silver v. McNamee
| Decision Date | 14 January 1999 |
| Docket Number | No. D030531,D030531 |
| Citation | 69 Cal.App.4th 269,81 Cal.Rptr.2d 445 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 99 Cal. Daily Op. Serv. 487, 99 Daily Journal D.A.R. 545 Wallace SILVER, Plaintiff and Appellant, v. Lawrence McNAMEE, Defendant and Respondent. |
Dummit, Faber & Briegleb, Bruce S. Bailey and Janet M. Lingel, San Diego, for Defendant and Respondent.
Plaintiff Wallace Silver appeals a summary judgment favoring defendant Lawrence McNamee on Silver's complaint for medical malpractice. Silver contends the superior court erred in concluding this lawsuit was time barred as a matter of law. We reverse the judgment.
The parties dispute whether Silver timely served McNamee with notice of intent to sue (CODE CIV. PROC., § 364)1 2 so as to toll for 90 days the 1-year limitations period of section 340.5. Resolution of this case involves analysis of the interplay among subdivisions (a) and (d) of section 364 and subdivision (a) of section 1013. Section 364, subdivision (a) deals with the amount of notice to which McNamee was entitled before Silver filed this lawsuit. Section 364, subdivision (d) provides for tolling of the statute of limitations when the notice of intent to sue is served within 90 days of the expiration of such limitations statute. Section 1013, subdivision (a) governs service by mail.
On January 8, 1997, three days before the limitations period was set to expire on his claim against McNamee for medical malpractice, Silver mailed to McNamee's Ohio residence two section 364 notices of intent to sue, one by regular mail and the other by certified mail. On March 21, 1997, Silver filed this lawsuit against McNamee.
McNamee sought summary judgment on the ground this lawsuit was time barred since McNamee assertedly did not receive "actual notice" of Silver's intent to sue until March 1997, almost two months after expiration of section 340.5's one-year limitations period. McNamee claimed that in February 1997 he declined to accept the certified mail from Silver and in March 1997 he first received the section 364 notice sent by regular mail.
In granting summary judgment favoring McNamee, the superior court determined section 340.5's one-year statute of limitations expired before McNamee had "actual notice" of Silver's intent to sue and thus such limitations statute was not tolled for ninety days under subdivision (d) of section 364. The court also determined the effective date of the notices mailed by Silver on January 8, 1997, was delayed by 10 days under section 1013, subdivision (a)'s provisions governing service by mail outside California and thus--by not becoming effective until January 18, 1997, after expiration of section 340.5's limitations period--such notices were untimely for purposes of tolling the statute of limitations for 90 days under section 364, subdivision (d).
Concluding Silver's notices of intent to sue McNamee were effective immediately upon their deposit in the mail, we determine the superior court erred in construing section 1013, subdivision (a) as delaying the effective date of such notices by 10 days. Further, in light of evidence indicating Silver strictly complied with relevant statutes governing service by mail, we also determine the superior court erred in concluding subdivision (d) of section 364 could not apply to toll the statute of limitations unless and until McNamee had "actual notice" of Silver's intent to sue. Hence, we reverse the summary judgment.
For purposes of determining the propriety of the summary judgment favoring McNamee, we state the facts undisputed by the parties. We state other facts in the light most favorable to Silver as appellant.
In January 1992 McNamee read Silver's lumbar MRI without noting Silver's aortic aneurysm.
On January 10, 1996, Silver suffered acute pain in his lower extremities.
On January 11, 1996, Silver went to an emergency room where he was diagnosed with an abdominal aortic aneurysm. 3
On January 12, 1996, Silver underwent a procedure where the aneurysm was resected.
On January 14, 1996, Silver underwent a fasciotomy procedure to alleviate the pressure to his lower calves caused by the resulting blood clot in his aneurysm.
On January 31, 1996, after Silver developed gangrene of his lower extremities, a bilateral below-knee amputation was performed.
On January 8, 1997, three days before the one-year limitations period was to expire on his claim against McNamee for medical malpractice, Silver retained counsel Mulligan. On that date, Mulligan's office sent by regular first class United States mail to McNamee in Ohio a notice of Silver's intent to commence a professional negligence action. (§ 364, subd. (a).) The notice was properly addressed to McNamee, bore the correct amount of prepaid postage and was placed in the United States mail. On that date, Mulligan's paralegal also executed a declaration of mailing such notice. The notice sent by regular mail was never returned by the post office to Mulligan.
Also on January 8, 1997, Mulligan's office sent by certified mail to McNamee in Ohio a second notice of intent to commence a professional On January 10, January 22, and January 28, 1997, the post office attempted to deliver to McNamee the notice sent by certified mail. The post office returned the certified mail to Mulligan as unclaimed.
negligence action. The second notice was properly addressed to McNamee, bore the correct amount of prepaid postage and was placed in the United States mail.
On March 21, 1997, Silver filed this medical malpractice lawsuit against McNamee. Silver alleged he lost his legs as a result of McNamee's failure to diagnose an aortic aneurysm when reading Silver's lumbar MRI.
In July 1997 answering Silver's complaint, McNamee affirmatively alleged this lawsuit was time barred under section 340.5.
In December 1997 McNamee filed a motion for summary judgment on the ground Silver's lawsuit was barred under section 340.5's one-year statute of limitations. McNamee asserted that not until March 1997, almost two months after expiration of the one-year limitations period, did he receive "actual notice" of Silver's intent to commence this professional negligence lawsuit against him. 4
Opposing McNamee's summary judgment motion, Silver asserted his lawsuit was timely filed since the notices sent on January 8, 1997, by first class mail and certified mail to McNamee at his Ohio residence satisfied the requirements of section 364 and thus tolled for 90 days the statute of limitations governing this action. 5
In January 1998 by telephonic ruling, the superior court granted McNamee's motion for summary judgment. The court concluded section 340.5's one-year limitations period expired before "actual notice" to McNamee of Silver's intent to sue and thus the statute of limitations was not tolled for ninety days.
In February 1998 after hearing, the superior court reaffirmed its ruling granting summary judgment favoring McNamee. The court concluded section 364, subdivision (b) did "not require any particular form" of notice; section 364, subdivision (c) permitted service of the notice in the manner prescribed in section 1010 et seq.; since Silver served McNamee on January 8, 1997, by mail at an address outside California, an extension of 10 days was required by section 1013, subdivision (a); cases arising under section 1013, subdivision (a) involving notice "tack the time on the beginning"; cases cited by Silver were distinguishable as extending "time to respond"; and thus "[t]he only timely notice in this case would have been by personal service or Express Mail service."
In March 1998 the superior court entered summary judgment dismissing Silver's lawsuit against McNamee.
Silver appeals the summary judgment favoring McNamee.
Silver contends the superior court erred in granting summary judgment on statute of
limitations grounds. Asserting he successfully served McNamee on January 8, 1997, with section 364 notices before expiration of section 340.5's one-year limitations period so as to toll the statute of limitations for ninety days under subdivision (d) of section 364, Silver contends this lawsuit was filed timely on March 21, 1997. Specifically, Silver asserts the section 364 notices served on McNamee were effective immediately upon deposit in the mail. Silver also asserts that where, as here, a plaintiff strictly complies with relevant statutes governing service by mail, neither section 364 nor case law requires the plaintiff to give the health care provider "actual notice" of the plaintiff's intent to sue.
In Woods v. Young (1991) 53 Cal.3d 315, 279 Cal.Rptr. 613, 807 P.2d 455, a decision construing section 364, the Supreme Court held section 340.5's "1-year statute of limitations is tolled for 90 days when the plaintiff gives the notice of intent to sue in the last 90 days of the limitations period...." (Woods v. Young, supra, at p. 319, 279 Cal.Rptr. 613, 807 P.2d 455.) The Supreme Court later applied the same tolling rule to section 340.5's three-year statute of limitations. (Russell v. Stanford University Hospital (1997) 15 Cal.4th 783, 64 Cal.Rptr.2d 97, 937 P.2d 640.)
In Woods v. Young, supra, 53 Cal.3d 315, 279 Cal.Rptr. 613, 807 P.2d 455, the Supreme Court observed that subdivision (a) of section 364 (Woods v....
To continue reading
Request your trial
-
Decosta v. Gossage
...in the process” and the “defendant acknowledge[d] timely receipt of written notice....” Id. at 12. 10. In Silver v. McNamee, 69 Cal.App.4th 269, 272, 81 Cal.Rptr.2d 445 (1999), the plaintiff mailed two notices of intent to the defendant, one by regular mail and one by certified mail, three ......
-
Jones v. Catholic Healthcare West
...Cal. App.4th 357, 360, 9 Cal.Rptr.2d 925 [service of notice of appeal complete when deposited in the mail].) In Silver v. McNamee (1999) 69 Cal. App.4th 269, 81 Cal.Rptr.2d 445, a case cited by defendants, plaintiff Silver elected to serve his section 364 notice of intent to sue "in the man......
-
Caldwell v. Smith
...by mail requires strict compliance with statutory provisions and failure to comply deprives a court of jurisdiction. (Silver v. McNamee (1999) 69 Cal.App.4th 269, 279-280; Lee v. Placer Title Co., supra, 28 Cal.App.4th at p. 509.) However, there is a caveat to this rule where there is actua......
-
Soto v. Knight Transp.
...received the notice. Rather, the person to whom the notice is sent by mail incurs the risk that the mail might fail. (Silver v. McNamee (1999) 69 Cal.App.4th 269, 283; Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360.) Where one party complies with the statutory requirements of......
-
Negligence
...Russell v. Stanford University Hospital (1997) 15 Cal.4th 783, 788 (three-year statute of limitations); Silver v. McNamee (1999) 69 Cal. App. 4th 269, 286 (notice service effected when posted within limitations period). A Notice of Intent to Sue applies to a medical provider who was sued as......