Tresemer v. Barke

• Citation: 86 Cal.App.3d 656,150 Cal.Rptr. 384
• Parties: , 12 A.L.R.4th 27 Donna Sue TRESEMER, Plaintiff and Appellant, v. Morton BARKE, M. D., Defendant and Respondent. Civ. 52298.
• Decision Date: 22 November 1978
• Court: California Court of Appeals

Page 384

150 Cal.Rptr. 384

86 Cal.App.3d 656, 12 A.L.R.4th 27

Donna Sue TRESEMER, Plaintiff and Appellant, v. Morton BARKE, M. D., Defendant and Respondent.

Civ. 52298.

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

Nov. 22, 1978.

Kanarek & Berlin and Sheldon Berlin, Van Nuys, for plaintiff and appellant.

Bonne, Jones, Bridges, Mueller & O'Keefe, a Professional Corp., and Joel Bruce Douglas, Los Angeles, for defendant and respondent.

STEPHENS, Acting Presiding Justice.

This is an appeal by plaintiff Donna Sue Tresemer from the grant of summary judgment in favor of defendant Morton Barke, M.D. The action, filed on April 12, 1976, is for damages allegedly sustained by plaintiff from a Dalkon Shield intrauterine device. Plaintiff's third amended complaint charges Dr. Barke, who inserted the device in August 1972, with willful misconduct (count one) and medical malpractice (count two). Mario De Lara, M.D., who attempted to remove the device on April 17, 1975, ¹ is charged with willful misconduct (count three) and medical negligence (count four), and A. H. Robbins Company is charged with the manufacture and distribution of harmful contraceptive intrauterine devices (count five).

After demurrers had been sustained to three separate complaints, Dr. Barke (hereinafter defendant) responded to the third amended complaint by a demurrer and motion to strike along with a motion for a summary judgment. Plaintiff filed no written opposition to the motions. The motion to strike and demurrer were placed off calendar and the motion for summary judgment was granted, predicated on the grounds that the statute of limitations (Code Civ.Proc., §§ 340.5 and 340, subd. 3) barred the action, the action was without merit, and plaintiff had presented no triable issue of fact. We conclude defendant's moving papers do not show that plaintiff's action is barred by time limitations and do not rebut all elements of defendant's liability.

,2] Inasmuch as this case reaches us on appeal from a summary judgment in favor of defendant, we need only determine whether there is a reasonable Possibility that plaintiff may be able to establish its case. When the moving party is the defendant, he must conclusively negate a necessary element of plaintiff's case or establish a complete defense, and thereby demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial. (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 338-339, 138 Cal.Rptr. 670.) Code of Civil Procedure section 437c provides in pertinent part: "Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto. . . . (P) The motion shall be supported or opposed by affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken. (P) 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the admissible evidence set forth in the papers and all inferences reasonably deducible from such evidence, except 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. (P) Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. (P) If a party is otherwise entitled to a summary judgment pursuant to the provisions of this section, summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to such fact; or where a material fact is an individual's state of mind, or lack thereof, and such fact is sought to be established solely by the individual's affirmation thereof."

"The summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for an open trial. . . . 'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor . . . and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.' (Citations.) A defendant who moves for a summary judgment must prevail on the basis of his own affidavits and admissions made by the plaintiff, and unless the defendant's showing is sufficient, there is no burden on the plaintiff to file affidavits showing he has a cause of action or to file counteraffidavits at all. A summary judgment for defendant has been held improper where his affidavits were conclusionary and did not show that he was entitled to judgment and where the plaintiff did not file any counteraffidavits. (Citations.)" (Rowland v. Christian (1968) 69 Cal.2d 108, 111, 70 Cal.Rptr. 97, 99, 443 P.2d 561, 563.)

In the instant case, plaintiff filed no opposition to defendant's motion for summary judgment, and made no formal request that the trial court take judicial notice of any document, declaration or affidavit. However, defendant's moving papers are insufficient to establish his defense that plaintiff's causes of action against him were barred by the applicable statutes of limitations. (Cf. Butcher v. Okmar Oil Co. (1977) 65 Cal.App.3d 972, 975-976, 135 Cal.Rptr. 713.)

3] Although generally a personal injury claim accrues and the period of limitations commences when the wrongful act takes place, an exception is presented when the pathological effect occurs without perceptible trauma and the victim is "blamelessly ignorant" of the cause of injury. In such case the statute of limitations does not begin to run until the person knows or, by the exercise of reasonable diligence, should have discovered the cause of injury. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25, 122 Cal.Rptr. 218.) Personal injury actions based upon allegations of willful misconduct are governed by the one-year period of limitations prescribed by Code of Civil Procedure section 340, subdivision 3.

Medical negligence claims are governed by Code of Civil Procedure section 340.5. Before the advent of section 340.5 in 1970, such malpractice actions were also governed by Code of Civil Procedure section 340, subdivision 3, supra, and judicial decisions had firmly established the principle that the one-year limitations period commences to run when the plaintiff discovers the injury and its negligent cause, or through the exercise of reasonable diligence should have discovered it. (Larcher v. Wanless (1976) 18 Cal.3d 646, 654, 135 Cal.Rptr. 75, 557 P.2d 507.) The 1970 version of section 340.5 preserved the one-year "discovery" rule, but circumscribed it with an outer limit of four years. (Id., at p. 658.)

In 1975 section 340.5 ² was amended. The amended section was in effect when the present suit was filed and is controlling as to the causes of action alleging medical negligence. The Legislature retained the one-year "discovery" limitations period in the 1975 version of section 340.5, reduced the four-year maximum limitation to three years and provided that " '(i)n no event shall the time for commencement of legal action Exceed three years . . . .' " unless affected by one of its three specific tolling provisions. (Italics in original. Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 100, 132 Cal.Rptr. 657, 662, 553 P.2d 1129, 1134.) The "time for the commencement of action" applicable to the three-year limitation period is triggered by the plaintiff's "injury." (Code, Civ.Proc., § 340.5.)

4] Lest it appear that it is the same event which causes both the one-year and three-year limitation periods to begin, we reiterate that the one-year period commences not merely upon discovery of the harm caused by the alleged wrongful act, but requires also "discovery of the malpractice." (Martinez v. County of Los Angeles (1978) 78 Cal.App.3d 242, 245, 144 Cal.Rptr. 123.)

5] Inasmuch as one of the grounds upon which the summary judgment herein was granted was that the action was "barred by the Statute of Limitations as set forth in Sections 340(3) and 340.5 of the Code of Civil Procedure . . .," the court apparently mistakenly reasoned that the relevant date which set the limitations periods in motion is August 1972, the date when defendant inserted the Dalkon Shield. However, in Larcher the Supreme Court differentiated between the "injury" and the "alleged wrongful act." It stated that the word "injury," as used in the 1970 version of section 340.5 to denote the start of the four-year limitation period, was a "word of art" which clearly referred to the "damaging effect" of the "alleged wrongful act" and not to the act itself. (Id., at pp. 655-656, and fn. 11 on p. 656, 135 Cal.Rptr. 75, 557 P.2d 507.) Likewise, in the 1975 amended version of section 340.5, it is the "injury" which sets in motion the three-year limitation period. "For our purposes here, the key holding of both Sanchez and Larcher is that 'injury' is not synonymous with 'wrongful act.' " (Bispo v. Burton (1978) 82 Cal.App.3d 824, 830, 147 Cal.Rptr. 442, 445.)

6] At bench, plaintiff's third amended complaint alleges that not until May 5, 1975, the date on...