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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 postjudgment order of the Superior Court of 

Orange County, William M. Monroe, Judge. Affirmed. 

 Law Offices of Tina Locklear and Tina Marie Locklear for Plaintiffs and 

Appellants. 

 Carroll, Kelly, Trotter, Franzen & McKenna, Michael J. Trotter, 

David P. Pruett and Matthew N. Trotter for Defendant and Respondent. 

* * * 
2

INTRODUCTION 

 Plaintiffs Peter Salah and his niece, Samia Hishmeh (plaintiffs), appeal 

after the trial court granted summary judgment in favor of defendant 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 that on May 22, 2010, a nurse 

negligently instructed then 70-year-old Salah to put on his shoes and socks, while sitting 

on a bed, and that both plaintiffs suffered serious injuries when Hishmeh unsuccessfully 

tried to stop Salah from falling. 

 The hospital moved for summary judgment on the ground plaintiffs’ 

complaint was time-barred. Plaintiffs opposed the motion on the ground the applicable 

one-year statute of limitations had been tolled because on May 18, 2011, they each sent 

the hospital a letter they contend constituted a notice of the intention 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 toll the applicable statute of limitations. 

 We affirm. Plaintiffs’ letters did not constitute notices of the intention to 

sue the hospital within the meaning of section 364 because they failed to include any of 

the content required by subdivision (b) of section 364. Consequently, plaintiffs’ 

complaint was time-barred, and the trial court properly granted summary judgment and 

denied the motion to vacate. 

BACKGROUND 

I. 

THE COMPLAINT

 On August 11, 2011, plaintiffs filed a complaint against the hospital, 

asserting four separate claims for negligence. In the complaint, plaintiffs alleged that on 
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May 22, 2010, Hishmeh arrived at the hospital to pick up then 70-year-old Salah who 

recently had hernia surgery. Plaintiffs alleged 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. 

THE HOSPITAL FILES A MOTION FOR SUMMARY JUDGMENT

WHICH PLAINTIFFS OPPOSE. 

 The hospital filed a motion for summary judgment on the ground the 

complaint was filed after the expiration of the 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 hospital was negligent or 

otherwise responsible for plaintiffs’ injuries that occurred. 

 In opposition to the motion for summary judgment, plaintiffs produced 

evidence of correspondence sent by their attorney 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 sustained in the emergency department of this 

hospital. [¶] Please do not contact our client directly and send all further correspondence 

and communication to me. I look forward to working 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 dated June 1, 2010, which contained identical 

content as the letter sent on behalf of Hishmeh. (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’ trial 
4

counsel argued to the trial court constituted notices 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 statute of limitations for 

90 days pursuant to section 364, subdivision (d), the complaint 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 written correspondence to [the hospital], seeking 

to comply with California Code of Civil Procedure Section 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 correspondence is attached hereto as ‘Exhibit B.’” 

Exhibit B to plaintiffs’ counsel’s declaration 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 which 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 prior 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 concerns, 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. 

THE TRIAL COURT GRANTS THE MOTION FOR SUMMARY JUDGMENT. 

 The trial court granted the motion for summary judgment and explained its 

reasoning in a minute order, as follows: “Plaintiffs acknowledge the injury occurred on 
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5/22/10. The only issue is whether the statute of limitations was tolled by CCP §364. [¶] 

The supposed Notices of Intent were defective. 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 the proposition that the second Notice does not 

toll the statute of limitations. That case did not address the situation present here 

involving an originally defective Notice. [¶] As to the validity 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, including 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 May 2011) did not comply with CCP §364.” 

 Judgment was entered against plaintiffs and in favor of the hospital. 

IV. 

PLAINTIFFS UNSUCCESSFULLY MOVE TO VACATE THE ORDER

GRANTING SUMMARY JUDGMENT, AND APPEAL. 

 Plaintiffs filed a motion to vacate the order granting summary judgment, 

which we construe as a motion to vacate the judgment entered after the trial court granted 

the motion for summary judgment. The basis 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 suggests 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 survive summary judgment’—relief under §473 is 

simply not available. [¶] Stripping away titles and labels, plaintiffs’ motion to vacate is 

in fact a motion for reconsideration (CCP §1008). [¶] CCP §364(d) tolls the statute of 
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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 the legal basis of the claim and the type of 

loss sustained, including with specificity the nature of the injuries suffered.’ [¶] That the 

purpose of MICRA [(Medical Injury Compensation Reform Act of 1975)] is to encourage 

parties to negotiate a resolution to medical malpractice disputes, the specificityrequirement in §364(b) is necessarily directed toward this purpose. A notice which fails 

to provide any information 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; any legal basis for a civil suit; any indication 

commensurate with actually filing a lawsuit; any reference to §364 at all. The 05/18/11 

letter provided defendant no relevant information whatsoever, and in fact appears to have 

been a letter whose sole purpose was to remind defendant not to contact plaintiffs 

directly. [¶] Nothing in the legislative history or caselaw suggests that §365 was intended 

to forgive ineffective attempts to toll the [statute of limitations] under §364(d).” 

 Plaintiffs appealed from the judgment and from the postjudgment order 

denying the motion to vacate. 

DISCUSSION 

I. 

THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT. 

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 for summary judgment is properly granted if 
7

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 meaning of a written instrument 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 legitimate 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 Granted 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 against a health care provider based upon 

such person’s alleged professional negligence, the time for the commencement of action 

shall be three years after the date of injury or one year after the plaintiff discovers, or 

through the use of reasonable diligence should have discovered, the injury, whichever 

occurs first.” (§ 340.5.) The California Supreme Court has explained: “Under the 

discovery rule, the statute of limitations begins to run when the plaintiff suspects or 

should suspect that her injury 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 became aware of the hospital’s alleged 

wrongdoing as the cause of their injuries on May 22, 2010. Thus, the parties agree, the 

applicable one-year statute of limitations began 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 complaint timely filed. 
8

 As part of MICRA, section 364, subdivision (a) “requires plaintiffs to give 

defendants 90 days’ notice of intent to sue for actions ‘based upon’ defendants’ 

professional negligence. Section 364, subdivision (d), tolls the ‘applicable statute of 

limitations’ governing the negligence action 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 sustained, including with specificity the nature of 

the injuries suffered. [¶] (c) The notice may be served in the manner prescribed in 

Chapter 5 (commencing with Section 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 section shall not be applicable with respect to any 

defendant whose name is unknown to the plaintiff 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 (commencing with Section 500) of the Business and 

Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the 

Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with 

Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health 

dispensary, or health facility, licensed pursuant to Division 2 (commencing with 

Section 1200) of the Health and Safety Code. ‘Health care provider’ includes the legal 

representatives of a health care provider; [¶] (2) ‘Professional negligence’ means 

negligent act or omission to act by a health care provider in the rendering of professional 
9

services, which act or omission is the proximate cause of a personal injury or wrongful 

death, provided that such services are within the scope of services for which the provider 

is licensed and which are not within any restriction 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 Legislature enacted MICRA in 1975 in response to 

rapidly increasing premiums for medical malpractice insurance. [Citations.] The 

Legislature viewed MICRA as ‘“an interrelated legislative scheme . . . to deal specifically 

with all medical malpractice claims.”’ [Citation.] The purpose of the notice of intent to 

sue and the 90-day tolling period of section 364 was to decrease the number of actions 

premised on professional negligence by establishing a procedure to encourage the parties 

to negotiate ‘“outside the structure and atmosphere of the formal litigation process.”’ 

[Citation.] We have held that the tolling period of section 364, subdivision (d), applies to 

those injuries governed by the MICRA statute of limitations under section 340.5. 

[Citations.] The cases agree that MICRA provisions should be construed liberally in 

order to promote the legislative interest in negotiated resolution of medical malpractice 

disputes and to reduce malpractice insurance premiums.” 

 Plaintiffs contend the May 18, 2011 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 hospital contends the May 18, 2011 letters did not 

satisfy the notice requirement of section 364 and thus did not 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 requirement” 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 Merced Community Medical Center.’ No mention is made of 

the type of injuries suffered. Moreover, the claim simply states, ‘The names of the public 

employees causing the claimant’s injuries are medical personnel whose names are 

unknown to the claimant at this time.’ This cannot be construed as sufficient notice to 

the individual physicians who were charged with malpractice. Under these circumstances 

the . . . claim cannot serve as a proper notice 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 negligence arising from ‘surgeries’ which 

caused multiple injuries,” including an E. coli infection. The appellate court concluded: 

“While the specification of injury contained in plaintiff’s section 364 claim is not a model 

of clarity, it does inform the health care practitioner-defendant of the contemplated 

lawsuit arising out of the plastic and reconstructive surgery performed. Furthermore, the 

notice informs the doctor that plaintiff suffered severe and permanent damage to her body 

and health. Such notice furthers the public policy underlying section 364 to give the 

parties a meaningful opportunity to settle the claim and 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 required 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 suffered.” The May 18, 2011 letters 

informed the hospital that plaintiffs’ attorney represented the plaintiffs, corrected the 

“date of injury” that had been incorrectly stated in the June 1, 2010 letters, stated 
11

plaintiffs’ unspecified “treatment” was “ongoing,” 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 sustained. They did not cite or otherwise refer to 

section 364, much less state that plaintiffs intended to file a lawsuit against the hospital 

for professional negligence. Consequently, the May 18, 2011 letters failed to contain the 

required content of a notice of the intention to commence an action against the hospital 

within the meaning of section 364, and, thus, the tolling provisions of section 364, 

subdivision (d) were never triggered. 

 Plaintiffs contend the May 18, 2011 letters tolled the statute of limitations 

notwithstanding their deficiencies. Plaintiffs’ 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 the jurisdiction of the court to render a judgment 

therein. However, failure to comply with such provisions by any attorney at law shall be 

grounds for professional discipline and the State Bar of California shall investigate and 

take appropriate action in any such cases brought to its attention.” 

 Nothing in section 365 suggests 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 and proved”].) Under section 365, the trial court has jurisdiction 

over a medical malpractice action even if the 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 the motion for summary judgment. 

II. 

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION

BY DENYING THE MOTION TO VACATE. 

 Plaintiffs contend the trial court erred 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, order, or other proceeding taken against a party 

by “mistake, inadvertence, surprise, or excusable neglect.” We review an order denying 

a motion for discretionary relief under section 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 applying section 473 to the notice provision of section 364. 

Section 340.5 makes no provision 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 particular circumstances, and no tolling is 
13

provided at all for the one-year period following discovery. Section 364, which contains 

a limitations period requiring 90 days’ notice 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 Commencing Actions’) and inexorably impacts 

upon the limitations period of section 340.5. ‘Unknown defendants’ are the only 

exception to section 364’s notice requirements; there is no exception for good cause 

shown, and accordingly application of section 473 is precluded. We conclude that 

applying section 473 to section 340.5 through section 364 would create 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 determine whether counsel’s mistake is deemed excusable, the 

court looks at ‘the reasonableness of the misconception and the justifiability of lack of 

determination of the correct law.’ [Citation.] [¶] Here, appellants’ 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 tolled 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 notice as set forth in section 364, 

subdivision (b). In their opening brief, the closest that plaintiffs come to offering such an 

explanation is in their statement: “On May 18, 2011, when [plaintiffs’] § 364 notices 

were sent, the extent of [plaintiffs’] injuries was unknown. . . . [Plaintiffs’] attorney 

thought that stating that treatment was ongoing was sufficient for purposes of the § 364 

notices. . . . [Plaintiffs’] attorney did not yet know the magnitude of the injuries and did 

not yet know whether the complaint would be for the wrongful death of Peter Salah or for 
14

his pain and suffering resulting from the injury.” Plaintiffs’ argument does not explain 

why the May 18, 2011 letters failed to assert an intention to commence legal action 

against the hospital, identify the legal basis of the claims, e.g., negligence, 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 order denying the motion to vacate are 

affirmed. Respondent shall recover costs on appeal. 

 

 FYBEL, J. 

WE CONCUR: 

O’LEARY, P. J. 

THOMPSON, J.