Filed 12/1/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

FRANCISCO GUTIERREZ,

Plaintiff and Appellant,

v.

URIEL TOSTADO et al.,

Defendants and Respondents.

 H049983

 (Santa Clara County

 Super. Ct. No. 20CV361400)

Francisco Gutierrez appeals from a judgment entered after the trial court granted 

summary judgment in favor of respondents Uriel Tostado and ProTransport-1, LLC, on 

the basis that Gutierrez’s personal injury claims were time-barred under the Medical 

Injury Compensation Reform Act (MICRA). Gutierrez contends that the trial court erred 

when it found MICRA’s one-year statute of limitations for professional negligence 

applicable. We conclude that because Tostado was a medical provider rendering 

professional services at the time the alleged negligence occurred, MICRA’s statute of 

limitations bars Gutierrez’s claims. We thus affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gutierrez was driving on Interstate 280 when he was forced to stop. Shortly after 

Gutierrez stopped, Tostado, who was driving an ambulance, rear-ended him. At the time 

of the accident, Tostado was an emergency medical technician (EMT) employed by 

ProTransport-1, LLC and was transporting a patient from one medical facility to another. 

While Tostado drove, his partner attended to the patient in the rear of the ambulance.
2

Gutierrez was injured in the collision and visited a chiropractor for treatment within ten 

days of the incident. 

Almost two years later, Gutierrez filed a complaint against Tostado and 

ProTransport-1, alleging various personal injury claims. The respondents filed a motion 

for summary judgment on the sole ground that Gutierrez’s claims were time barred under 

MICRA’s one-year statute of limitations. The trial court agreed that MICRA applied and 

granted the motion. The trial court concluded that because Tostado was transporting a 

patient at the time of the accident, he was rendering professional services. The trial court

held that Gutierrez’s claims against the defendants were time-barred under the statute. 

Gutierrez timely appealed from the judgment.1

II. DISCUSSION

A. Standard of Review

“We review the grant of summary judgment de novo, and in doing so, we review 

the evidence in the light most favorable to the losing party. [Citation.]” (Lopez v. 

American Medical Response West (2023) 89 Cal.App.5th 336, 342 (Lopez).) In this case, 

the trial court granted summary judgment based on its statutory construction of MICRA. 

We review issues of statutory construction de novo. (Aldana v. Stillwagon (2016) 2 

Cal.App.5th 1, 6 (Aldana).)

B. MICRA’s Statute of Limitations Bars Gutierrez’s Claims

The trial court granted summary judgment on the sole ground that Gutierrez’s

action was barred by the statute of limitations set forth in MICRA. Gutierrez contends 

that the trial court erred in dismissing his claims because MICRA does not apply to his 

1 Gutierrez filed his notice of appeal on April 19, 2022, after the trial court had 

granted summary judgment in favor of the defendants but prior to judgment being 

entered. We issued an order to show cause as to why Gutierrez’s appeal should not be 

dismissed as premature. After the trial court filed the judgment and Gutierrez submitted 

a notice of submission of judgment, we discharged the order to show cause and deemed 

Gutierrez’s notice of appeal filed on July 11, 2022, the date judgment was entered. 
3

personal injury claims. A personal injury action for negligence must generally be filed 

within two years of the date on which the injury occurred. (Code Civ. Proc., § 335.1.)2

However, suits against health care providers for professional negligence must be filed 

within one year. (§ 340.5.) Gutierrez argues that the one-year statute of limitations does 

not apply to his action because his claims are for general negligence not professional 

negligence, and the duty that Tostado violated by crashing into his car was a duty of care 

generally owed to the public, not a professional duty owed by a medical provider to a 

patient. 

MICRA defines professional negligence as “a negligent act or omission to act by a 

health care provider in the rendering of professional services.” (§ 340.5, subd. (2).) The 

parties do not dispute that an EMT transporting a patient in an ambulance is providing 

medical care to the patient for purposes of the statute. (Lopez, supra, 89 Cal.App.5th at 

p. 347; Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 407

(Canister).) However, only actions “alleging injury suffered as a result of . . . the 

provision of medical care to patients” are covered. (Flores v. Presbyterian 

Intercommunity Hospital (2016) 63 Cal.4th 75, 88, italics added (Flores).) 

In this appeal we must decide whether a driver in a separate vehicle, injured in a 

collision with an ambulance transporting a patient, was injured as a result of the provision 

of medical care, such that MICRA’s one year statute applies. Gutierrez urges us to find 

that any injury here was caused by ordinary negligence. He argues that where a medical 

provider owes no professional duty to the plaintiff and allegedly breaches only a duty 

owed to the general public, a claim for personal injuries should be governed by the twoyear statute of limitations applicable to ordinary negligence. Conversely, respondent 

suggests that the critical question is not whether defendant owed plaintiff a professional 

duty, but simply whether plaintiff was injured as a result of the provision of medical 

2 All statutory references are to the Code of Civil Procedure, unless otherwise 

stated. 
4

services by defendant; in other words, was plaintiff’s injury a foreseeable consequence of

defendant’s act of providing medical care? 

1. Legal Framework for MICRA

The Supreme Court in Flores examined what it means for a health care provider to 

render professional services under MICRA. There, a hospital patient sued the hospital 

for negligence after the latch on her bedrail broke, causing her to fall and injure herself.

(Flores, supra, 63 Cal.4th at p. 89.) The court considered the difference between regular 

negligence arising out of the duty owed to the general public, the negligence in the 

maintenance of equipment and premises that are merely convenient for, or incidental to, 

the provision of medical care to a patient, and the negligence that arises from the duty 

owed to patients in the rendering of professional services. (Id. at pp. 88-89.) The court 

found that “Even those parts of a hospital dedicated primarily to patient care typically 

contain numerous items of furniture and equipment—tables, televisions, toilets, and so 

on—that are provided primarily for the comfort and convenience of patients and visitors, 

but generally play no part in the patient’s medical diagnosis or treatment. Although a 

defect in such equipment may injure patients as well as visitors or staff, a hospital’s 

general duty to keep such items in good repair generally overlaps with the ‘obligations 

that all persons subject to California’s laws have[.]’ [Citation.]” (Ibid.) 

Relying on its prior decision in Lee v. Hanley (2015) 61 Cal.4th 1225, 1237 (Lee)

3

,

for this concept of overlapping duty, the court held that where there are overlapping 

3

In Lee, the Court considered “section 340.5’s neighboring provision imposing a 

one-year statute of limitations for ‘[a]n action against an attorney for a wrongful act or 

omission, other than for actual fraud, arising in the performance of professional services.’

[Citation.]” (Flores, supra, 63 Cal.4th at p. 87.) The court decided “that section 340.6(a) 

is properly read to apply to claims that ‘depend on proof that an attorney violated a 

professional obligation in the course of providing professional services.’ [Citation.]”

(Ibid.) Explaining that the statute excludes services unrelated to the law or matters that 

entail violations of professional obligations that may overlap with obligations that all 

persons have, the court emphasized that the statute applies when an attorney violates a 
5

obligations—those owed to patients, and those owed to the general public—an injury

resulting from a breach of a generally applicable obligation does not fall within MICRA. 

“Rather, the special statute of limitations for professional negligence actions against 

health care providers applies only to actions alleging injury suffered as a result of 

negligence in rendering the professional services that hospitals and others provide by 

virtue of being health care professionals: that is, the provision of medical care to 

patients.” (Flores, supra, 63 Cal.4th at p. 88.) The court concluded that the hospital’s 

alleged negligence in the maintenance of plaintiff’s bedrail did not overlap with its 

general duty owed to the public because it was “integrally related to [plaintiff’s] medical 

diagnosis and treatment,” and was therefore professional negligence encompassed by 

MICRA. (Id. at p. 89.)

Flores and Lee both considered whether the injury to the patient or client was 

caused by negligence in the provision of professional services or whether the injury was 

the result of the breach of some broader overlapping duty owed to the public. Gutierrez 

asks us to conclude that the contrast drawn in those cases, between a professional duty 

and the general duty owed to the public, means that MICRA only applies where the 

defendant owes a professional duty to the plaintiff. However, neither Flores nor Lee

considered whether MICRA applies where the plaintiff is injured during the provision of 

professional services, as a result of those services, but was not the recipient of the 

services. In both of those cases, the plaintiff was either the client or the patient. Multiple 

courts have considered injuries to third parties who were not patients and have concluded 

that MICRA applied to their claims.

In Canister, a police officer accompanying an arrestee in the back of an ambulance 

was injured when the ambulance hit a curb. At the time of the accident, the ambulance 

was being driven by one EMT while another attended to the arrestee in the rear of the 

professional obligation as opposed to some generally applicable nonprofessional 

obligation. (Id. at pp. 87-88.)
6

ambulance. The officer sued for negligence. (Canister, supra, 160 Cal.App.4th at 

p. 392.) After finding that an EMT was a health care provider and that transporting a 

patient constituted professional services within the meaning of MICRA, the Canister 

court held that MICRA extends to “ ‘any foreseeable injured party, including patients, 

business invitees, staff members or visitors, provided the injuries alleged arose out of 

professional negligence.’ [Citation.]” (Id. at pp. 407-408.) The court concluded that it 

was foreseeable as a matter of law that a police officer accompanying an arrestee in an 

ambulance might be injured in the operation of the ambulance. (Id. at p. 408.) 

Gutierrez argues that Canister is no longer viable authority after Flores, because 

Flores set forth “a completely new framework for analyzing the scope of MICRA, 

making those prior cases irrelevant.” Flores neither mentions nor overrules Canister. 

(See Lopez, supra, 89 Cal.App.5th at pp. 345-346 [expressing doubt that Flores overruled 

Canister].) Nor did it need to. Because the plaintiff in Flores was a patient injured at the 

hospital due to faulty equipment, the analysis necessarily focused on whether the duty 

owed to plaintiff was that of a medical provider or a duty owed to the general public. 

The Flores court concluded that by providing the bedrail the hospital was providing 

medical care, not just a convenience incidental to care. The question before the Flores

court was what duty was owed to its patient, not to whom their professional duty of care

extended. 

2. Tostado was a medical provider providing medical care at the time of the 

accident.

Tostado was transporting a patient who was receiving medical care at the time of 

the accident. He drove while his partner attended to the patient. There is no question that 

transporting a patient in an ambulance qualifies as the provision of medical care, and that 

the act of driving the ambulance is an integral part of that care. (Lopez, supra, 89 

Cal.App.5th at p. 347.) For certain patients, safe and quick ambulance transport may 

mean the difference between life and death. Even though the transport at issue here does 
7

not appear to have been emergent, we cannot say that an interfacility transport is so trivial 

that it can be characterized as being “merely convenient for, or incidental to, the 

provision of medical care to a patient.” (Flores, supra, 63 Cal.4th at p. 88.) Consistent 

with Flores, driving the ambulance qualifies, under the circumstances here, as “rendering 

of professional services.” (See § 340.5, subd. (2); contrast Aldana, supra, 2 Cal.App.5th 

at pp. 5, 7-8 [MICRA does not apply where paramedic supervisor not transporting 

patient, but driving to the scene of an emergency in a truck].) 

3. Gutierrez was injured as a result of the provision of medical care.

Because Gutierrez was not the recipient of the medical care, the question here is 

different from the one raised in Flores. It is not whether the injuries alleged were the 

result of general or professional negligence. Instead, the question here is whether an 

injury to a third party, who is not a patient, is subject to MICRA’s statute of limitations 

because the injury occurred during, and as a result of, the provision of medical care by a 

medical provider. 

The court in Lopez, a case decided after Flores, considered this issue and decided 

that nonpatients injured while an EMT was rendering professional services were subject 

to MICRA. In Lopez, plaintiffs were the patient who was being transported by an 

ambulance and his son who was also in the ambulance. Both were injured when the 

ambulance was in an accident. The Lopez court held, “MICRA’s statute of limitations 

applies to plaintiffs’ claims because their alleged injuries occurred while the EMT’s were 

rendering professional services by transporting plaintiffs in an ambulance. Plaintiffs’ 

injuries resulted from [] negligence in the ‘use or maintenance of equipment [the 

ambulance] integrally related to [plaintiff’s] medical diagnosis and treatment’ and 

therefore was professional negligence for the purposes of section 340.5. [Citation.]” 

(Lopez, supra, 89 Cal.App.5th at p. 347.) The court acknowledged that the son was not a 

patient. However, the court held that this fact “does not change our analysis because the 

injury to both plaintiffs occurred while defendant was using the ambulance to transport 
8

[the patient]. Section 340.5 applies to negligent acts or omissions ‘in the rendering of 

professional services’ but does not require the services to have been performed for the 

plaintiff. [Citations.]” (Id. at p. 347, fn. 6; see Aldana, supra, 2 Cal.App.5th at p. 8 

[“MICRA is not limited to suits by patients”]; Canister, supra, 160 Cal.App.4th at p. 407

[applying MICRA to claim by third party injured while defendant rendered professional 

services to another].)

In both Canister and in Lopez, the nonpatient was also a passenger in the 

ambulance. Here, plaintiff was not a passenger in the ambulance, but was injured by 

Tostado while Tostado was providing medical services. Canister focused on the 

foreseeability of the injury to a passenger (Canister, supra, 160 Cal.App.4th at pp. 407-

408), while Lopez adopted the Flores framework and found that the passenger was 

injured due to negligence in the rendering of professional services and did not need to be 

the recipient of the services (Lopez, supra, 89 Cal.App.5th at p. 347). Because neither 

Flores nor Lee considered MICRA’s applicability to nonpatients, we must agree with 

Canister and Lopez and conclude that MICRA is not limited to suits by patients or to 

recipients of medical services as long as the plaintiff is injured due to negligence in the 

rendering of professional services and his injuries were foreseeable.

The provision of ambulance services involves driving on the road, sometimes at a 

very high speed. Getting a patient to the hospital quickly is often as integral to the 

provision of this medical service as performing CPR or administering medication

intravenously. It is, therefore, entirely foreseeable that collisions may occur where third 

parties are injured. The fact that Tostado was not driving quickly here or that Gutierrez 

was in a separate vehicle rather than in the ambulance does not change the analysis or our 

conclusion that third parties injured in a collision with an ambulance when it is rendering 

medical care are subject to MICRA. 

To hold otherwise would lead to unintended consequences. At oral argument we

posed the following hypothetical to counsel for Gutierrez: If a hospital attendant were 
9

wheeling a patient on a gurney down the hallway of the hospital at a high speed and ran 

into a hospital visitor, injuring both the patient on the gurney and the nonpatient visitor, 

would the visitor be subject to MICRA, or the two-year statute of limitations for general 

negligence? Counsel for Gutierrez acknowledged that under their proposed approach of 

applying MICRA only to those owed a professional duty by the medical provider, the 

third party would be subject to a general negligence statute of limitations. Counsel’s 

concession demonstrates the untenability of such a result. Under Gutierrez’s proposed 

approach, two people involved in the same accident at the same time would be subject to 

two different statutes of limitations, possibly resulting in two separate lawsuits with 

inconsistent judgments and greatly increased costs for all involved. Such an outcome is 

inconsistent with the fundamental intent of MICRA to “reduce the cost of medical 

malpractice insurance ‘by limiting the amount and timing of recovery in cases of 

professional negligence.’ [Citations.]” (Flores, supra, 63 Cal.4th at p. 81.)

For these reasons, Guttierez’s reliance on Johnson v. Open Door Community 

Health Centers (2017) 15 Cal.App.5th 153 and on Aldana to argue that driving safely is 

an overlapping duty Tostado owed to the general public, not a specific duty he owed by 

virtue of his role as a healthcare provider, is misplaced. Simply because there is also a

general duty owed to the public to drive safely does not negate the fact that the conduct at 

issue in this case was integral to the provision of medical care. As explained in Flores, 

even when there is a general duty to the public to maintain safe premises, MICRA applies 

where equipment is “integrally related to [a patient’s] medical diagnosis and treatment.” 

(Flores, supra, 63 Cal.4th at pp. 88-89; Lopez, supra, 89 Cal.App.5th at p. 347 [relying 

on Flores to conclude that ambulance transport is “integrally related” to a patient’s 

medical diagnosis and treatment].) Similarly here, even though Tostado may owe a duty 

to the public to drive the ambulance safely when not in use for medical care, the injury to 

Gutierrez occurred while Tostado, a medical provider, was performing the integral 
10

function of transporting a patient by ambulance. The trial court correctly concluded that 

MICRA’s one-year statute of limitations applied to Gutierrez’s negligence claims.

III. DISPOSITION

The judgment is affirmed. 
_______________________________

 Greenwood, P. J.

I CONCUR:

_______________________________

 Grover, J. 

H049983

Gutierrez v. Tostado, et al.
Bromberg, J., dissenting.

I respectfully dissent. The majority interprets the statute of limitations in the 

Medical Injury Compensation Reform Act (MICRA) (Code Civ. Proc., § 340.5) to apply 

whenever a claim involves conduct constituting professional negligence under MICRA. 

This interpretation extends MICRA’s statute of limitations unpredictably and unfairly. It 

also departs from the Supreme Court’s approach to a similarly worded statute of 

limitations in Lee v. Hanley (2015) 61 Cal.4th 1225 (Lee) in favor of the Lee dissent’s 

approach. In my view, we should follow the Lee majority. 

This case arises out of a run-of-the-mill traffic accident involving an ambulance 

that happened to be transporting a patient on a non-emergency matter, presumably with 

its siren off. As a consequence, plaintiff Francisco Gutierrez had no way of knowing that 

the ambulance that rear ended him was transporting a patient and therefore no way of 

knowing that, under interpretation adopted by the majority, MICRA’s statute of 

limitations applies. (It also would have been difficult for Gutierrez or his lawyer to 

determine that MICRA’s statute of limitations applies to claims against paramedics 

because paramedics are no longer included in the statutory provisions referenced by 

MICRA. (See Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 

388, 395-399 [noting that the paramedic provisions were moved in 1982].) As a 

consequence, Gutierrez and his counsel were quite likely surprised to learn that his traffic 

accident claim is subject to MICRA’s one-year limitations period rather than the two-year 

period now generally applicable to personal injury claims. (See Code Civ. Proc., 

§ 335.1.) 

MICRA’s statute of limitations need not be interpreted to apply in such an 

unpredictable and surprising manner. That statute of limitations applies to claims “for 

injury or death against a health care provider based upon such person’s alleged 

professional negligence” (Code Civ. Proc., § 340.5, italics added), and the Supreme Court 

has interpreted a similarly worded, neighboring statute of limitations to apply only to 
2

claims that are based on professional negligence in the sense that they require proof that a 

special obligation imposed on professionals has been violated. As a consequence, 

MICRA’s statute of limitations need not be interpreted to apply here because the 

ambulance that rear-ended plaintiff happened to be carrying a passenger. Instead, 

MICRA’s statute of limitations can—and, in my view, should—be interpreted to apply 

only if the plaintiff advances a claim requiring proof that an obligation owed by health 

providers was violated. 

This is how the Supreme Court interpreted the statute of limitations in section 

340.6 of the Code of Civil Procedure in Lee. Section 340.6 applies to claims “against an 

attorney for a wrongful act or omission . . . arising in the performance of professional 

services.” (Code Civ. Proc., § 340.6, subd. (a).) Lee held that “the way a plaintiff styled 

his or her complaint” does not determine whether a claim arises in the performance of 

professional services by attorneys under section 340.6. (Lee, supra, 61 Cal.4th at 

p. 1236.) It also held that a claim does not arise in the performance of professional 

services merely because it touches upon professional services (id. at p. 1238), rejecting 

the dissent’s position that section 340.6 applies whenever such services are involved. 

(See id. at p. 1242 (dis. opn. of Corrigan, J.) [“I would hold that section 340.6 governs 

any claim against an attorney, except for actual fraud, that is based on the attorney’s 

wrongful conduct in performing professional services.”].) Instead, the Supreme Court 

held that application of section 340.6 depends on the proof needed to establish the claim 

asserted by the plaintiff: Specifically, under Lee a claim arises out of the performance of 

professional services, and triggers application of section 340.6, if it requires “proof that 

an attorney violated a professional obligation as opposed to some generally applicable 

nonprofessional obligation.” (Id. at p. 1238.) 

MICRA’s statute of limitations should be interpreted using this approach. In 

Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75 (Flores), the 

Supreme Court relied on Lee in interpreting MICRA’s statute of limitations. Section 
3

340.6, Flores noted, is a “neighboring provision” that is “similarly worded.” (Id. at 

pp. 87-88.) Flores also observed that Lee’s analysis of section 340.6 is “instructive” (id. 

at p. 88) and, in particular, that Lee’s distinction between professional obligations and 

generally applicable nonprofessional obligations applies to MICRA’s statute of 

limitations. “Just as an attorney’s obligations ‘often overlap with obligations that all 

persons subject to California’s laws have’ [citation], so do the obligations of hospitals.” 

(Ibid.) “And,” Flores continued, “just as an attorney’s breach of a generally applicable 

obligation to avoid stealing from or physically harming his or her clients does not fall 

within section 340.6(a), so too, we conclude, an injury resulting from a hospital’s breach 

of a generally applicable obligation to maintain its equipment and premises in a safe 

condition does not fall within section 340.5.” (Ibid.) 

It is true that Flores did not rule that the MICRA’s statute of limitations applies 

only to claims requiring proof that a professional obligation has been violated. That issue 

was not raised in Flores: The question before the Supreme Court in Flores was instead 

whether the violation that the plaintiff sought to prove involved “professional 

negligence.” (Flores, supra, 63 Cal.4th at pp. 88-89 [concluding that maintaining a 

hospital bed’s rail involved professional negligence because it was “integrally related to 

the medical treatment and diagnosis of the patient”].) Nonetheless, Flores signaled that it 

would follow Lee’s approach in interpreting MICRA’s statute of limitations by observing 

that section 340.6 is “similarly worded” to MICRA’s statute of limitations (id. at 

pp. 87-88), describing Lee’s analysis of section 340.6 as “instructive” (id. at p. 88), and 

noting that Lee’s distinction between professional obligations and generally applicable 

nonprofessional obligations applies to MICRA. (Ibid.) Moreover, nothing in Flores

suggests that the Supreme Court intended to reject Lee’s approach and to interpret 

MICRA’s statute of limitations to apply in a fundamentally different way from section 

340.5. much less that it intended to interpret MICRA’s statute of limitations using the 

approach of the Lee dissent.
4

In addition, adopting the Lee majority’s approach avoids the unpredictability and 

unfairness that the approach of the Lee dissent creates here. Under the dissent’s 

approach, MICRA’s statute of limitations and its one-year limitation period applies 

whether or not a plaintiff such as Gutierrez had reason to suspect that a patient was being 

treated in the ambulance that rear-ended him. By contrast, under the Lee majority’s 

approach, MICRA’s one-year statute of limitations applies only if a plaintiff asserts a 

claim requiring proof that a health care provider’s professional obligation has been 

violated, which means that under that approach the plaintiff will always know if his or 

her claim is based upon professional negligence and there will no surprise or unfairness. 

The majority objects that it is impracticable to interpret MICRA’s statute of 

limitations to depend on whether a claim requires proof that a professional obligation has 

been violated because claims by two people involved in the same accident at the same 

time might be subject to two different statutes of limitations. While it is true that claims 

by different people may be subject to different statute of limitations, that is no reason to 

reject the Lee majority’s approach. Lee itself recognized that under this approach claims 

brought by the same person concerning the same conduct may be subject to different 

statutes of limitations: (Lee, supra, 61 Cal.4th at p. 1230 [“[A]n claim based on his 

violation of [the defendant’s professional] obligations is time-barred” but “a claim for 

conversion whose ultimate proof at trial may not depend on the assertion that [defendant] 

violated a professional obligation . . . is not time-barred.”].) As a consequence, it is 

neither impermissible nor impractical to interpret MICRA’s statute of limitations so that 

claims involving the same conduct may be subject to different statutes of limitations if 

they are based on different theories. 

The majority also argues that a restrictive interpretation of MICRA’s statute of 

limitations would undermine MICRA’s overarching goal of reducing the cost of medical 

malpractice insurance. However, the majority does not offer any reason to believe that 

traffic accident claims involving ambulance drivers are covered by medical malpractice 
5

insurance. Nor does it offer any reason to believe that, if such claims are covered, they 

are so numerous and costly that they will have a material impact on medical malpractice 

rates. In any event, MICRA’s statute of limitations was not intended to shorten the 

limitations period for tort claims against health care providers. When MICRA was 

enacted, personal injury claims were subject to the same one-year limitations period as 

under MICRA (Flores, supra, 63 Cal.4th at p. 82), and therefore extending MICRA’s 

limitations period to personal injury claims would not have limited claims or reduced 

medical malpractice costs (id. at p. 86). Indeed, because MICRA adopts a discovery rule 

that delays the running of the statute of limitations (Code Civ. Proc., § 340.5), “at the 

time MICRA was enacted,” extension of the Act’s statute of limitations “could well have 

been counterproductive” from a financial perspective. (Flores, supra, 63 Cal.4th at p. 87, 

fn. 4.) 

In sum, I see no good reason to reject the approach of the Lee majority in 

interpreting MICRA’s statute of limitations, much less to do so in favor of the Lee 

dissent’s approach. In my view, MICRA’s statute of limitation should be interpreted in 

accordance with Lee majority’s approach to apply only to claims requiring proof that a 

professional obligation owed by health care providers has been violated. Because 

Gutierrez’s claims are based on the generally applicable, nonprofessional duty of care 

owed by all drivers, I also would conclude that his claims are not subject to MICRA’s 

statute of limitations and reverse the judgment.
 ______________________________________

 BROMBERG, J.

Gutierrez v. Tostado et al.

H049983
Trial Court: Santa Clara County Superior Court

Superior Court No.: 20CV361400 

Trial Judge: The Honorable Christopher G. Rudy

Attorneys for Plaintiff and Appellant,

Francisco Gutierrez: Southwest Legal Group

Anthony Robert Lopez, Jr.

The Ehrlich Law Firm

Jeffrey I. Ehrlich

Clinton E. Ehrlich-Quinn

Attorneys for Defendants and Respondents,

Uriel Tostado and ProTransport-1 LLC: Manning & Kass Ellrod Ramirez Trester 

LLP

David Vincent Roth

Mark R. Wilson

H049983

Gutierrez v. Tostado et al.