Woods v. Young, B026333

• Decision Date: 28 April 1988
• Docket Number: No. B026333,B026333
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 225 Cal.App.3d 1434 225 Cal.App.3d 1434 Varetta WOODS, Plaintiff and Appellant, v. William YOUNG, et al., Defendants and Respondents.

Page 768

246 Cal.Rptr. 768

Previously published at 225 Cal.App.3d 1434

225 Cal.App.3d 1434

Varetta WOODS, Plaintiff and Appellant, v. William YOUNG, et al., Defendants and Respondents.

No. B026333.

Court of Appeal, Second District, Division 3, California.

April 28, 1988.

Review Granted July 25, 1988.

[225 Cal.App.3d 1436] William J. Cleary, Jr., Los Angeles, for plaintiff and appellant.

Kirtland & Packard, Harold J. Hunter, Jr. and Donna P. McCray, Herzfeld & Rubin and Roy D. Goldstein, Shield & Smith and Douglas Fee, Los Angeles, for defendants and respondents.

CROSKEY, Associate Justice.

Plaintiff Varetta Woods appeals from the summary judgment entered in favor of defendants Hiawatha Harris, M.D., Alvin T. Trotter, M.D. and Brotman Medical Center ("defendants").

PROCEDURAL BACKGROUND

On August 16, 1984, plaintiff filed a complaint for medical malpractice against defendants. The complaint alleged that defendants Hiawatha Harris, M.D. ("Harris") and Alvin T. Trotter, M.D. ("Trotter") are agents and employees of defendant Brotman Medical Center ("Brotman"); that on or about May 5, 1983, plaintiff consulted with and employed defendants for the purpose of obtaining diagnosis and treatment of an illness; that defendants agreed to care for plaintiff properly; that on or about May 10, 1983, Harris and Trotter had plaintiff admitted to Brotman; that defendants negligently examined her, negligently diagnosed her condition and negligently treated her by the improper placement of an endotrachial tube and the administration of the wrong drugs; and that plaintiff suffered injury, pain, and loss of earnings because of defendants' negligence.

Defendants filed separate general denials to the complaint, each alleging as an affirmative defense that plaintiff's complaint was barred by the statute of limitations set out in Code of Civil Procedure section 340.5. ¹ Thereafter, defendants filed motions for summary judgment, all based on section 340.5. The motions were set for hearing on June 4, 1986, but were continued at plaintiff's request. The motions were granted on June 19, 1986. The minute order for that date reflects that no written or oral opposition had been received.

On October 15, 1986 plaintiff filed a motion for relief from default, under section On December 19, 1986, plaintiff filed a timely motion for reconsideration of the order granting summary judgments, citing (for the first time) sections 364 and 356 as a basis for the motion. ² However, the summary judgment was signed December 30, 1986 and plaintiff's motion for reconsideration was heard and denied January 26, 1987. Thereafter plaintiff filed a timely appeal from the summary judgment.

473. The motion was based on her attorney's assertion that he had not received notice of the continued hearing date and therefore had not filed opposition and appeared at the June 19 hearing. Plaintiff's motion was granted. The court vacated the June 19, 1986 order granting summary judgment and set December 10, 1986 as the date for rehearing defendants' motions. Defendants' motions were again granted on that date.

STATEMENT OF FACTS

The trial court's minute order for December 10, 1986 (the date of the rehearing of defendants' motions for summary judgment) states "Granted pursuant to plaintiff's answers to interrogatory # 63. Plaintiff states that on 6/6/83 she discovered the diagnosis was incorrect." Interrogatory # 63 was part of the second set of interrogatories propounded to plaintiff by defendant Trotter. ³

Although plaintiff's answers state that she first learned of defendants' misdiagnosis when she was admitted to County-USC

Medical Center on June 6, 1983, both the County-USC and Brotman medical records show a [225 Cal.App.3d 1439] different date. Brotman's records show it discharged plaintiff on June 29, 1983; County-USC's records show it admitted plaintiff on June 29, 1983 and discharged her on July 25, 1983. In the record on appeal is an authorization, signed by plaintiff and directed to Brotman, to release her medical records. It is dated July 21, 1983 and is on the letterhead of an attorney in Panorama City, California. Since plaintiff was discharged from County-USC on July 25, she apparently signed the release while still in the hospital. The record shows that another law firm sent letters to defendants on February 17, 1984, to inform them (in compliance with section 364) of plaintiff's intent to file a malpractice action.

CONTENTIONS

On appeal, plaintiff contends that by virtue of the provisions of section 364, subdivision (a), she was entitled to an automatic 90-day stay of the statute of limitations on her cause of action because she had to give a 90-day notice to defendants of her intent to file an action against them. She argues that such 90-day stay would make her complaint timely even if the commencement of the statutory period is calculated from the earliest date asserted by the defendants. We agree and therefore reverse the judgment.

DISCUSSION

1. Although Not Argued to The Trial Court Plaintiff Should be Entitled to Assert Her Claim Regarding the 90-Day Stay as a New Legal Theory on Appeal

Since plaintiff had filed a timely motion for reconsideration, the trial court should not have entered the summary judgment while plaintiff's motion for reconsideration was pending; but once it was entered, plaintiff should have changed her approach and attacked the summary judgment rather than proceeding with her motion for reconsideration. Section 577 defines "judgment" as "the final determination of the rights of the parties in an action or proceeding." Generally, only the final judgment may be appealed. (See 7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, §§ 1-23, pp. 452-469.) Once a final judgment is rendered, the trial court has no power to reconsider an interim ruling, such as an order granting defendants' motions for summary judgment. (Magallanes v. Superior Court (1985) 167 Cal.App.3d 878, 882, 213 Cal.Rptr. 547.) As Weil and Brown point out in their civil procedure handbook, once a summary judgment is entered, it should be attacked in the trial court by a motion for new trial, a motion for relief from judgment, or a motion to set aside the judgment; or, it should be appealed. (Weil & Brown, Cal.Prac.Guide: Civ.Pro.Before Trial (TRG 1987) 10:183-10:191.)

Because of plaintiff's procedural error, the issue regarding a section 364 90-day stay or tolling of the statute of limitations was not effectively presented to the trial court. That issue was raised for the first time in plaintiff's motion for reconsideration, a motion which the trial court could not properly hear. ⁴ Thus, the issue is, in effect, a new theory on appeal.

Generally a party is not permitted on appeal to change the theory of his case. This doctrine of appellate review is known

                as the "theory of trial."   There are, however, exceptions to the rule, one of which is that a party may change his theory of the case on appeal if the new issue he raises involves solely a question of law i.e., if there are no new questions of fact or mixed questions of law and fact.  (Fenton v. Board of Directors (1984) 156 Cal.App.3d 1107, 1113, 203 Cal.Rptr. 388;  Barton v. Owen (1977) 71 Cal.App.3d 484, 491, 139 Cal.Rptr. 494;  9 Witkin, Cal.Procedure, (3d ed. 1985) Appeal, §§ 316-323, pp. 327-334.)  "[A]n appellate court may allow an appellant to assert a new theory of the case on appeal where the facts were clearly put at issue at trial and are undisputed on appeal.  [Citation.]"  (Richmond v. Dart Industries, Inc.  (1987) 196 Cal.App.3d 869, 879, 242 Cal.Rptr. 184.)   This is such a case.  Here, the new issue on appeal clearly involves only a question of law.  It centers on a construction of section 364(a) as its language is impacted by section 356.  This is a matter of statutory construction which has been the subject of at least seven appellate decisions.  (See discussion, infra.)
                

2. The Statute of Limitations on Plaintiff's Cause of Action Began to Run No Earlier Than June 6, 1983, and No Later Than July 25, 1983

In her answers to Trotter's interrogatories, plaintiff stated that it was when she was admitted to County-USC that she first realized she had received incorrect diagnosis and treatment at Brotman. She also stated she was admitted on June 6, 1983. These answers to interrogatories were used by defendants to support their motions for summary judgment. (§ 473c, subd. (b).) However, in addition to this interrogatory evidence, defendants also submitted documentary evidence to support their motions. Two such documents were records from Brotman and County-USC. The Brotman records show that plaintiff was discharged from that facility on June 29, 1983; County-USC's records show that it admitted her on the same date and discharged her on July 25, 1983. In view of plaintiff's admission in her interrogatory response that she was first advised of the misdiagnosis, "When I was admitted to the USC County Medical Center," it would seem clear that while the June 6 date may be in error, the date of such advice could not have been later than July 25, 1983, the date of her discharge from County-USC. Thus, we can safely conclude that the statutory period began to run no earlier than June 6, 1983 and no later than July 25, 1983. ⁵

Section 340.5 sets out the statute of limitations for an action against health care providers based on their alleged professional negligence. ⁶ Section 340.5 actually contains two provisions of limitation, a three-year provision and a one-year provision, and plaintiffs must meet both. (Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 757-758, 199 Cal.Rptr. 816.)

The three-year limitation period begins to run on the date of plaintiff's "injury." "Injury" means the date a plaintiff discovers the harm caused by the alleged negligence, which is not necessarily the date of the act of alleged negligence.

                (Larcher v. Wanless (1976) 18 Cal.3d 646, 655-656, 135 Cal.Rptr. 75, 557

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