Filed 11/20/13 Salah v. St. Joseph Hosp. of Orange CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PETER SALAH et al., Plaintiffs and Appellants,

v. ST. JOSEPH HOSPITAL OF ORANGE, Defendant and Respondent. G047308 (Super. Ct . No. 30-2011-00499152)

O P I N I O N

Appeal from a judgment and a postjudgm ent order of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed.
Law Offices of Tina Locklear and Ti na Marie Locklear for Plaintiffs and Appellants. Carroll, Kelly, Trotter, Franzen & McKenna, Michael J. Trotter,
David P. Pruett and Matthew N. Tro tter for Defendant and Respondent.

* * *2 INTRODUCTION
Plaintiffs Peter Salah and his nie ce, Samia Hishmeh (plaintiffs), appeal after the trial court granted summary judgment in favor of defendan t St. Joseph Hospital of Orange (the hospital) and denied plaintiffs ’ motion to vacate the court’s order. In their complaint filed in August 2011, plaintiffs alleged th at on May 22, 2010, a nurse negligently instructed then 70-year-old Salah to put on his shoes an d socks, while sitting on a bed, and that both plaintiffs suffered se rious injuries when Hi shmeh unsuccessfully tried to stop Salah from falling. The hospital moved for summary judg ment on the ground plaintiffs’ complaint was time-barred. Plaintiffs oppo sed the motion on the ground the applicable one-year statute of limitations had been tolled because on May 18, 20 11, they each sent the hospital a letter they contend constituted a notice of the intentio n to sue the hospital within the meaning of section 364 of the Code of Civil Procedure. (All further statutory
references are to the Code of Civil Procedure .) Plaintiffs contend the trial court further erred by denying their motion to vacate the order granting summary judgment on the ground those letters were sufficient to to ll the applicable statute of limitations.
We affirm. Plaintiffs’ letters did no t constitute notices of the intention to sue the hospital within the meaning of section 364 becaus e they failed to include any of the content required by subdivision (b) of section 364. Consequently, plaintiffs’ complaint was time-barred, and the trial c ourt properly granted summary judgment and
denied the motion to vacate.
BACKGROUND
I.
T HE C OMPLAINT On August 11, 2011, pl aintiffs filed a complain t against the hospital, asserting four separate claims for negligence. In the complaint, plai ntiffs alleged that on3 May 22, 2010, Hishmeh arrived at the hospita l to pick up then 70 -year-old Salah who recently had hernia surgery. Plaintiffs a lleged Hishmeh saw Salah falling forward off the bed he was sitting on, as he tried to put on his shoes and socks (as directed by his nurse). They further alleged Hishmeh unsuccessfully attempted to prevent Salah from falling by running forward to grasp him, but both of them “tumbled painfully to the ground” and suffered injuries.
II.

T HE H OSPITAL F ILES A M OTION FOR S UMMARY J UDGMENT W HICH P LAINTIFFS O PPOSE

. The hospital filed a motion for su mmary judgment on the ground the complaint was filed after the expiration of th e applicable one-year statute of limitations for professional negligence under section 340.5. The motion included evidence plaintiffs were aware on May 22, 2010 of the facts they believe show the hosp ital was negligent or otherwise responsible for plainti ffs’ injuries that occurred. In opposition to the motion for summa ry judgment, plaintiffs produced evidence of corresponden ce sent by their attorn ey to the hospital. The first letter, dated June 1, 2010, stated: “Please be advised that this office represents Samia His[h]meh in her claim for injuries and damages that she su stained in the emergency department of this hospital. [¶] Please do not contact our clie nt directly and send all further correspondence
and communication to me. I look forward to wo rking with you in resolving this matter.” The letter stated that the “[d]ate of [l]oss” was “06/21/2010.” Plaintiffs’ counsel sent a second letter on behalf of Salah, also date d June 1, 2010, which contained identical
content as the letter sent on behalf of Hish meh. (We refer to plaintiffs’ counsel’s two letters, dated June 1, 2010, as the June 1, 2010 letters.) Plaintiffs also produced evidence of two letters dated May 18, 2011, written by their attorney, and sent to the hospital (the May 18, 2011 letters), which plaintiffs’ trial4 counsel argued to the trial court constituted no tices of plaintiffs’ intention to sue the hospital within the meaning of section 364. Plaintiffs’ counsel further argued that because service of the May 18, 2011 letters tolled the one-year stat ute of limitations for 90 days pursuant to section 364, subdivision (d), the compla int was timely filed. Plaintiffs’ counsel’s declaration, filed in opposition to the motion for summary judgment, stated: “On May 18 , 2011, after realizing the previous correspondence intended to provide notice to [the hospital] of Plaintiff’s intent to file a civil action was defective, I sent further wr itten correspondence to [t he hospital], seeking to comply with California Co de of Civil Procedure Secti on 364, advising that my law firm had been retained to pursue a claim on behalf of Plaintiff in connection with the injuries and damages they sustained in its emergency department on May 22, 2010. A true and correct copy of said corresponden ce is attached hereto as ‘Exhibit B.’” Exhibit B to plaintiffs’ counsel’s declarati on contained the May 18, 2011 letters. The
first letter stated: “Please be advised that this office represents Samia Hishmeh. We sent you a representation letter on June 1, 2010 whic h incorrectly referred to the date of injury as being 6/21/10 (20 days later than the date of our letter). We apologize for the error.
The correct date that Ms. Hishmeh sustained the injuries at your hospital and was then taken to your emergency room was May 21, 2010 (a month prio r to the date of our letter). Additionally, she returned to your ER the next day. Ms. Hishmeh’s treatment is still ongoing. [¶] If you have questions or concer ns, please contact me. Do not contact the client directly.” The second letter was sent on behalf of Salah, and had identical content
to the letter sent on behalf of Hishmeh.
III.
T HE T RIAL C OURT G RANTS THE M OTION FOR S UMMARY J UDGMENT

. The trial court granted the motion fo r summary judgment and explained its reasoning in a minute order, as follows: “P laintiffs acknowledge th e injury occurred on5 5/22/10. The only issue is whether the statute of limitations was tolled by CCP §364. [¶] The supposed Notices of Intent were defectiv e. It is not entirely clear that the first defective Notice sent in June 2010 even constituted notice under CCP §362 [ sic ]. Defendant correctly cites to Bennett for th e proposition that the second Notice does not
toll the statute of limitations. That case did not address the situation present here involving an originally defec tive Notice. [¶] As to the va lidity of the May 2011 notice, CCP §364(b) states that it must ‘notify the defendant of the legal basis of the claim and the type of loss sustained, incl uding with specificity the nature of the injuries suffered.’ A review of the May 2011 Notice letters fail to yield any such language. [¶] The Notices (both June 2010 and Ma y 2011) did not comply with CCP §364.” Judgment was entered against plainti ffs and in favor of the hospital.

IV.

P LAINTIFFS U NSUCCESSFULLY M OVE TO V ACATE THE O RDER G RANTING S UMMARY J UDGMENT , AND A PPEAL

. Plaintiffs filed a motion to vacate the order granting summary judgment, which we construe as a motion to vacate the ju dgment entered after the trial court granted the motion for summary judgment. The basi s of the motion to vacate was that the complaint was not time-barred because the May 18, 2011 letters were legally sufficient to toll the statute of limitations under section 364, subdivision (d).
The trial court denied the motion to vacate. The court’s minute order
stated: “The notice of motion must state with precision the nature of the relief sought and the grounds therefore. [¶] The memorandum su ggests that this is a motion for mandatory relief under CCP §473. The basis of the motion is ‘hey Court, you got this wrong’ and ‘I did a good enough job on that letter to surviv e summary judgment’—re lief under §473 is simply not available. [¶] Stripping away title s and labels, plaintiffs’ motion to vacate is in fact a motion for reconsideration (CCP §10 08). [¶] CCP §364(d) tolls the statute of6 limitations if a notice of intent to sue is served on the health care provider within the last 90 days. The parties in this case disagree whether the letter dated 05/18/11 was sufficient to trigger the tolling provision. Pursuant to §364(b): ‘No particular form of notice is required, but it shall notify the defendant of th e legal basis of the claim and the type of loss sustained, including with sp ecificity the nature of the inju ries suffered.’ [¶] That the purpose of MICRA [(Medical In jury Compensation Re form Act of 1975)] is to encourage parties to negotiate a resolution to medi cal malpractice disputes, the specificityrequirement in §364(b) is nece ssarily directed towa rd this purpose. A notice which fails to provide any informa tion regarding the injuries or legal basis of the claim does little if anything to promote evaluation or encourage resolution. [¶] The 05/18/11 letter does not contain: any description of injuries; a ny legal basis for a civil suit; any indication commensurate with actually fili ng a lawsuit; any reference to §364 at all. The 05/18/11 letter provided defendant no relevant informati on whatsoever, and in fact appears to have been a letter whose sole purpose was to re mind defendant not to contact plaintiffs directly. [¶] Nothing in the legislative histor y or caselaw suggests that §365 was intended to forgive ineffective attempts to toll the [statute of limitations] under §364(d).” Plaintiffs appealed from the judg ment and from the postjudgment order denying the motion to vacate.
DISCUSSION
I.
T HE T RIAL C OURT P ROPERLY G RANTED S UMMARY J UDGMENT

. A. Standard of Review We review orders granting summary judgment de novo. ( Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35.) A motion fo r summary judgment is properly granted if7 the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c); Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843.) “[W]hen, as here, the question involves the trial court’s interpretation of a statute and the legal me aning of a written inst rument on undisputed evidence, the question is one of law, subject to de novo review.” ( Kelly v. County of Los Angeles (2006) 141 Cal.App.4th 910, 919.) Where the uncontradicted facts are susceptible of only one leg itimate inference, the trial court may resolve a statute of limitations issue on summary judgment. ( Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)
B. Summary Judgment Was Properly Gr anted Because the Complaint Was Untimely Filed; Plaintiffs Never Sent a Notice Complying with Section 364, and, Thus, the Statute of Limitations Was Not Tolled. “In an action for injury or death agai nst a health care provider based upon such person’s alleged professional negligen ce, the time for the commencement of action shall be three years after the da te of injury or one year after the plaintiff discovers, or through the use of reasonable diligence shou ld have discovered, the injury, whichever occurs first.” (§ 340.5.) The California Supreme Court has explained: “Under the discovery rule, the statute of limitations be gins to run when the plaintiff suspects or should suspect that her in jury was caused by wrongdoing, that someone has done something wrong to her.” ( Jolly v. Eli Lilly & Co. , supra , 44 Cal.3d at p. 1110.) Here, it is undisputed plaintiffs be came aware of the hospital’s alleged wrongdoing as the cause of thei r injuries on May 22, 2010. Thus, the parties agree, the applicable one-year statute of limitations bega n to run on that date and, unless tolled, expired by the time the complaint was filed in August 2011. We therefore turn to
consider whether the statute of limitations was tolled under section 364, subdivision (d), thereby rendering the co mplaint timely filed.8 As part of MICRA, section 364, subdiv ision (a) “requires plaintiffs to give defendants 90 days’ notice of intent to sue for actions ‘based upon’ defendants’ professional negligence. Section 364, subdi vision (d), tolls the ‘applicable statute of limitations’ governing the negligence acti on for 90 days following proper statutory notice.” ( Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 211.) Section 364 provides in its entirety: “(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 sustai ned, including with specificity the nature of the injuries suffered . [¶] (c) The notice may be serv ed in the manner prescribed in Chapter 5 (commencing with Sec tion 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. [¶] (e) The provisions of this secti on shall not be applicable with respect to any defendant whose name is unknown to the plai ntiff at the time of filing the complaint and who is identified therein by a fictitious name, as provided in Section 474. [¶] (f) For the purposes of this section: [¶] (1) ‘Health care provider’ means any person licensed or certified pursuant to Division 2 (commenci ng with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pu rsuant to Chapter 2.5 (commencing with Section 1440) of Divi sion 2 of the Health and Safety Code; and any clinic, health dispensary, or health fac ility, licensed pursuant to Di vision 2 (commencing with Section 1200) of the Health and Safety Code. ‘Health care provider’ includes the legal representatives of a health care provider; [¶] (2) ‘Professiona l negligence’ means negligent act or omission to act by a health care provider in the rendering of professional9 services, which act or omission is the proxim ate cause of a personal injury or wrongful death, provided that such serv ices are within the scope of se rvices for which the provider is licensed and which are not within any rest riction imposed by the licensing agency or licensed hospital.” (Italics added.)
In Preferred Risk Mutual Ins. Co. v. Reiswig , supra , 21 Cal.4th at pages 214-215, the California Supreme Court explained the legislative purpose behind section 364 as follows: “[T]he Legislatur e enacted MICRA in 19 75 in response to rapidly increasing premiums for medical ma lpractice insurance. [Citations.] The Legislature viewed MICRA as ‘“an interrelated le gislative scheme . . . to deal specifically with all medical malpractice cl aims.”’ [Citation.] The purpose of the notice of intent to sue and the 90-day tolling peri od of section 364 was to de crease the number of actions premised on professional negligence by establis hing a procedure to encourage the parties to negotiate ‘“outside the structure and atmos phere of the formal litigation process.”’ [Citation.] We have held that the tolling period of section 36 4, subdivision (d), applies to those injuries governed by the MICRA stat ute of limitations under section 340.5. [Citations.] The cases agree that MICRA pr ovisions should be construed liberally in order to promote the legislative interest in negotiated resolution of medical malpractice disputes and to reduce malpr actice insurance premiums.” Plaintiffs contend the May 18, 20 11 letters constituted notices of the intention to sue in compliance with section 364, subdivision (a), which thereby tolled the statute of limitations for 90 days. The hosp ital contends the May 18, 2011 letters did not satisfy the notice requirement of section 364 and thus did no t trigger the tolling provision of section 364, subdivision (d ) as a matter of law.
In Anson v. County of Merced (1988) 202 Cal.App. 3d 1195, 1204, the appellate court concluded a “claim” served on one of the defendants by the plaintiff fell “significantly short of the specificity requireme nt” of section 364. The court explained:10 “[The claim] states, ‘This is a claim for medical malpractice which occurred on February 24, 1986, at the Me rced Community Medical Center.’ No mention is made of the type of injuries suffered. Moreover, the claim simply stat es, ‘The names of the public employees causing the claimant’s injuries are medical personnel whose names are
unknown to the claimant at th is time.’ This cannot be c onstrued as sufficient notice to the individual physicians who were charged with malpractice. Under these circumstances the . . . claim cannot serve as a proper notic e of intention to commence an action as required by Code of Civil Procedure section 364.” ( Anson v. County of Merced , supra , at p. 1204.)
In Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 178, the plaintiff served a notice “alleging general medical ne gligence arising from ‘surgeries’ which caused multiple injuries,” includi ng an E. coli infection. Th e appellate court concluded: “While the specification of inju ry contained in plaintiff’s se ction 364 claim is not a model of clarity, it does inform the health care practitioner-defendant of the contemplated lawsuit arising out of the plas tic and reconstructive surgery performed. Furthermore, the
notice informs the doctor that plaintiff suffered severe and permanent damage to her body
and health. Such notice furt hers the public policy underly ing section 364 to give the parties a meaningful opport unity to settle the claim a nd thus reduce the number of medical negligence suits in our courts.” ( Id. at p. 179.) Although section 364, subdivision (b) does not require any “particular form of notice” (italics added), it does delineate requi red content in that it provides the notice must “notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffere d.” The May 18, 2011 letters informed the hospital that plai ntiffs’ attorney represented the plaintiffs, corrected the “date of injury” that had been incorrectly stated in the J une 1, 2010 letters, stated11 plaintiffs’ unspecified “treatment” was “ong oing,” and instructed the hospital not to contact the plaintiffs directly. The May 18, 2011 letters, however, did not describe the nature of either plaintiff’s alleged injuries, did not identify the legal basis of either plaintiff’s claims, and did not state the type of alleged losses sustaine d. They did not cite or otherwise refer to section 364, much less state th at plaintiffs intended to file a lawsuit against the hospital for professional negligence. Consequently, th e May 18, 2011 letters failed to contain the required content of a notice of the intentio n to commence an action against the hospital within the meaning of section 364, and, t hus, the tolling provisions of section 364, subdivision (d) were never triggered. Plaintiffs contend the May 18, 2011 le tters tolled the statute of limitations notwithstanding their deficiencies. Plainti ffs’ argument is based on section 365, which provides: “Failure to comply with this chapter shall not invalidate any proceedings of any court of this state, nor shall it affect th e jurisdiction of the cour t to render a judgment therein. However, failure to co mply with such provi sions by any attorney at law shall be grounds for professional discipline and the St ate Bar of California shall investigate and take appropriate action in any such cases brought to its attention.” Nothing in section 365 su ggests that the applicable statute of limitations is tolled even when notice purportedly given under section 364 is defective. Otherwise, the notice requirements would be irrelevant. (See Edwards v. Superior Court , supra , 93 Cal.App.4th at p. 180 [“A logical application of the rule that court proceedings are not invalidated by a total failure to serve the section 364 notice is that failure to specify in the section 364 notice all injuries suffered cannot bar a plaintiff from including the injury unintentionally omitted from the notice in the lawsuit against the medical practitioner if it is not otherwise barred by the statute of limitations ” (italics added)].)12 Plaintiffs have confused the issue of jurisdiction with the issue whether inadequate notice tolls the statute of limitations. (See People v. Williams (1999) 77 Cal.App.4th 436, 457-458 [“In civil cases, the statute of limitations is not jurisdictional but merely serves a procedural function and constitutes an affirmative defense that is waived unless pleaded a nd proved”].) Under section 365, the trial court has jurisdiction over a medical malpractice action even if th e plaintiff failed to provide notice under section 364. ( Toigo v. Hayashida (1980) 103 Cal.App.3d 267, 268.) The relevant issue here is not jurisdiction, but whether a purported section 364 notice that fails to contain the statutorily required content tolls the statute of limitations; we hold it does not. The trial court did not err by granting th e motion for summa ry judgment.
II.

T HE T RIAL C OURT D ID N OT A BUSE I TS D ISCRETION BY D ENYING THE M OTION TO V ACATE

. Plaintiffs contend the trial court erre d by denying their motion to vacate the order granting summary judgment under section 473, subdivision (b), which permits the trial court to grant relief from a judgment, or der, or other proceeding taken against a party by “mistake, inadvertence, surprise, or excusa ble neglect.” We review an order denying a motion for discretionary relief under sec tion 473 for abuse of discretion. ( Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)
In Hanooka v. Pivko (1994) 22 Cal.App.4th 1553 , 1563, the appellate court stated: “We hold that appellants cannot extend the medical malpractice statute of limitations, section 340.5, by appl ying section 473 to the notice provision of section 364. Section 340.5 makes no provisio n for an extension of a limitations period on a showing of good cause, or specifically under section 473. Indeed, section 340.5 prohibits tolling beyond the three-year period except in pa rticular circumstances, and no tolling is13 provided at all for th e one-year period following discovery . Section 364, which contains a limitations period requiring 90 days’ notic e prior to commencing a medical malpractice action, should likewise not be susceptible to extension as it is contained within title 2 of the Code of Civil Procedure (‘Time of Co mmencing Actions’) and inexorably impacts upon the limitations period of section 340.5 . ‘Unknown defendants’ are the only exception to section 364’s notice requireme nts; there is no exception for good cause shown, and accordingly application of sectio n 473 is precluded. We conclude that applying section 473 to section 340.5 through section 364 would crea te a ‘loophole’ not envisioned by the Legislature.” The appellate court further stated, “[ e]ven were section 473 applicable, we
would find that the trial court did not abuse its discretion in denying appellants the relief they sought. [Citation.] Under section 473, a reasonable mistake of law is excusable. [Citation.] In order to dete rmine whether counsel’s mistak e is deemed excusable, the
court looks at ‘the reasonableness of the mi sconception and the justifiability of lack of
determination of the correct la w.’ [Citation.] [¶] Here, appe llants’ counsel’s excuses are not reasonable.” ( Hanooka v. Pivko , supra , 22 Cal.App.4th at p. 1563.) Here, even were we to assume the statute of limitations set forth in
section 340.5 could be tolle d by applying section 473 to the notice provision of section 364, plaintiffs do not offer any explanation, much less a reasonable one, for their failure to comply with the content requirements for the no tice as set forth in section 364, subdivision (b). In their opening brief, the closest that plainti ffs come to offering such an explanation is in their statement: “On Ma y 18, 2011, when [pla intiffs’] § 364 notices were sent, the extent of [pla intiffs’] injuries was unknown. . . . [Plaintiffs’] attorney thought that stating that trea tment was ongoing was sufficien t for purposes of the § 364 notices. . . . [Plaintiffs’] atto rney did not yet know the magni tude of the injuries and did not yet know whether the complaint would be fo r the wrongful death of Peter Salah or for14 his pain and suffering resulting from the injury .” Plaintiffs’ argument does not explain why the May 18, 2011 letters failed to asse rt an intention to commence legal action against the hospital, identify the legal basis of the claims, e.g., neg ligence, or identify the
type of injuries allegedly sustained by either plaintiff. That plaintiffs’ counsel was unaware of the extent of plaintiffs’ injuries does not explain why the May 18, 2011 letters failed to contain the requisite information.

DISPOSITION The judgment and the postjudgment or der denying the motion to vacate are affirmed. Respondent sha ll recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.