Opinion
A149579
05-17-2018
MELANESIA LEWIS et al., Plaintiffs and Appellants, v. COREY LONG, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. CIVMSC1201861)
Appellants Melanesia Lewis (Ms. Lewis) and her husband, Charles Lewis, appeal the trial court's grant of summary judgment in their medical malpractice suit in favor of respondent, Corey Long, M.D. (Dr. Long). Summary judgment was granted on grounds the Lewises knew Dr. Long's identity, yet failed to name him as a defendant until after the statute of limitations had run. The Lewises contend summary judgment should have been denied because triable issues of material fact remain as to whether Dr. Long was an unknown defendant when the complaint was initially filed. The trial court found determinative that the Lewises sent Dr. Long a Code of Civil Procedure section 364 Notice of Intent to Sue (section 364 notice) and thus could not have been ignorant of his identity at the time of the original complaint, as required by section 474. We agree and therefore affirm the judgment.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
I. FACTUAL BACKGROUND
Prior to May 2011, Ms. Lewis occasionally suffered migraines. In May 2011, her migraines became significantly worse. As a result, she and her husband visited the emergency department at Sutter Delta Medical Center in Antioch, California on May 3 and May 6, 2011. Two physician assistants treated her on these days. Dr. Long did not personally treat Ms. Lewis, but he was the supervising physician and his name is referenced in the medical records as "Dr. Long." During these visits, no health care provider ordered diagnostic studies (i.e., a CT scan) to determine why Ms. Lewis was experiencing headaches. On May 14, 2011, Ms. Lewis suffered a brain aneurysm.
These two physician assistants are respondents in a separate appeal, A147545.
The Lewises sent a section 364 notice addressed to "Dr. Long" on or about April 27, 2012. The Lewises filed the original complaint on July 30, 2012, alleging, among other things, medical negligence and naming Does 1 through 100. The operative pleading, denominated as the Third Amended Complaint, was filed on May 29, 2013. Dr. Long was not named in the complaint, First Amended Complaint, Second Amended Complaint, or the Third Amended Complaint.
On September 30, 2013, depositions were held. At the depositions, among the exhibits marked for identification by defense counsel for the hospital and other named defendants were various medical records, including discharge instructions that had "Phy: Long, Corey" written on them as well as Ms. Lewis's signature. The Lewises claim that this piece of evidence was not in their possession prior to the September 2013 depositions and that it revealed Dr. Long's true identity. Less than a month later, the Lewises named "Corey Long, M.D." as "Doe 51" in an amendment filed on October 16, 2013.
The Lewises claim they never received a copy of the discharge instructions in earlier discovery.
II. DISCUSSION
A. Parties' Contentions
The Lewises argue that at the time of their original complaint they were ignorant of Dr. Long's true identity because they only knew the reference, "Dr. Long." They did not know whether "Long" was a first name or last name. Because they only knew of a "Dr. Long" at the time of the original complaint, the Lewises assert they were "ignorant" of his true identity, as required by section 474, and thus the statute should allow the amendment to relate back to the original filing date. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177 (Woo).) They also claim that while a section 364 notice was sent to Dr. Long, because it was sent to Sutter Delta Medical Center, rather than to his office address, this actually shows they were ignorant rather than knowledgeable of his identity. As a result, the Lewises contend that triable issues of fact still remain and thus summary judgment should not have been granted in favor of Dr. Long.
By contrast, Dr. Long argues that the Lewises' claim is time barred by the statute of limitations, pursuant to section 340.5. He contends that the Lewises were not genuinely ignorant of his identity at the time of the original complaint because of the "smoking gun" evidence of the Lewises' prelitigation section 364 notice sent by their counsel. For that reason, Dr. Long asserts the amendment does not relate back to the original filing date, and thus the grant of summary judgment against them should be affirmed.
B. Summary Judgment, Credibility, and Standard of Review
The governing standards here are well-established. "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).) "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Id., subd. (p)(2).) "The statute of limitations operates in an action as an affirmative defense. [Citations.]" (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.) When the undisputed facts show the claim is untimely, "summary judgment is proper." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly).)
Section 437c, subdivision (e) provides as follows: "If a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof." A single declaration submitted in opposition to summary judgment motion disputing any material issue of fact is sufficient to warrant denial of the motion "except where the declaration is facially . . . incredible as a matter of law[.]" (Estate of Housley (1997) 56 Cal.App.4th 342, 360 (Housley); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856 [trial court "may not 'grant[ ]' the defendants' motion for summary judgment 'based on inferences . . . , if contradicted by other inferences or evidence, which raise a triable issue as to any material fact' "].)
" 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] " 'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.' " [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' " (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286, quoting Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
C. Statute of Limitations
Section 340.5 states in pertinent part, "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."
In some circumstances, an amended complaint can relate back to the original filing date. This exception to the general rule is codified in section 474, which reads in pertinent part, "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly[.]"
D. The Exception: Section 474
An amended complaint that adds a new defendant generally does not relate back to the date of filing the original complaint for purposes of the statute of limitations. (Woo, supra,75 Cal.App.4th at p. 176.) But section 474 allows the substitution of a new defendant for a fictitious Doe defendant named in the original complaint. (Ibid.) If the requirements of section 474 are satisfied, even if such substitution occurs after the statute of limitations has expired, the amended pleading is deemed filed as of the date the original complaint was filed. (Ibid.) For section 474 to apply, the plaintiff must have been genuinely ignorant of the defendant's identity at the time he or she filed the original complaint. (Id. at p. 177.) Omitting the defendant's name in the original complaint must be a consequence of real ignorance and not merely a means of evading the requirements of section 474. (Ibid.) Ignorance of a defendant's true name "should be real and not feigned. [Citation] . . . The attempt to file an amendment under section 474 should be honest and in good faith." (Scherer v. Mark (1976) 64 Cal.App.3d 834, 841.)
As a general rule, questions involved in determining whether an action is barred by the applicable statute of limitations are questions of fact. (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 713.) Where the facts are not disputed, however, the determination of whether an action is barred by the applicable statute of limitations becomes an issue of law. (Ibid.; see also Jolly, supra, 44 Cal.3d at p. 1112 ["While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper."].) "The purpose of summary judgment is to identify whether material fact questions exist, not to resolve them." (Korff v. City of Phoenix (9th Cir. 2017) 700 Fed. Appx. 573, 573-574.)
Here, we find it unnecessary to determine whether knowing a last name without a first name, or vice versa, is, as a matter of law, sufficient to show ignorance under section 474. We need only decide whether the summary judgment record presents any triable issues of fact. On this record, accepting as true the Lewises' representations as to what medical records they had in their possession at the time of the original complaint, we nevertheless conclude they had sufficient information to name Dr. Long as a defendant. It is undisputed that these records only made reference to a "Dr. Long," but we think it undeniable that they knew who Dr. Long was but simply misunderstood where he was. Under the circumstances, we find dispositive the rule in Housley that summary judgment is appropriate when the sole declaration in opposition "is facially so incredible as a matter of law that the moving party otherwise would be entitled to summary judgment." (Housley, supra, 56 Cal.App.4th at p. 360.)
People v. Schlimbach (2011) 193 Cal.App.4th 1132 (Schlimbach) is instructive. In that case, the declarations proffered in opposition to summary judgment were insufficient to raise a triable issue because both the trial and appellate courts found them facially incredible. (Id. at pp. 1141-1142 & fn. 9.) The appellate court affirmed the trial court's grant of summary judgment for plaintiff, the People of the State of California, in an action against the operator of a bar where employees had been arrested seven times in a one-year period for selling alcohol to obviously intoxicated patrons. (Id. at pp. 1134, 1149.) Evidence for the People included a declaration from the Los Angeles Police Department sergeant who had received numerous complaints from residents and businesses in the area of the bar. (Id. at p. 1135.) The People also presented evidence of the results of police undercover investigations, which demonstrated seven incidents (on five different days) of the sale of alcohol to obviously intoxicated persons. The investigators observed various signs of intoxication like stumbling, swaying, words slurring and unintelligible speech, loss of balance, etc. and subsequently tested each patron's blood-alcohol level. (Id. at pp. 1136-1137.)
In opposition to the People's motion for summary judgment, defendant and her two employees submitted declarations. (Schlimbach, supra, 193 Cal.App.4th at p. 1137.) The employees' declarations specifically sought to "establish that the patrons in question were not intoxicated when sold alcohol and, if they were, they were not obviously intoxicated." (Ibid., original italics.) The appellate court held that these declarations were "so incredible as to be simply unworthy of belief." (Id. at p. 1138, fn. 6.) For example, defendant declared that the patron in one of the arrest incidents was "a regular patron of the bar whose 'mannerisms, or lack thereof, [were] such that he appears to be intoxicated, even when he is not.' As the patron's blood-alcohol level was tested to be 0.24 percent, no argument [could] be made that the patron was not actually intoxicated." (Ibid.) An employee also declared that one patron she served had a " 'speech impediment, which cause[d] him to stutter and slur his words.' " She claimed that if the officer observed this, the patron's unintelligible or slurred speech was a result of his speech impediment and not from intoxication. (Ibid.) The court found this unbelievable, as that patron's subsequently tested blood-alcohol level was 0.14 percent. (Ibid.) The Schlimbach court ultimately affirmed the trial court's grant of summary judgment for the People because it found defendant's proffered evidence "simply incredible in the face of undisputed evidence regarding [the patrons'] blood-alcohol content." (Id. at p. 1142, fn. 9.)
Just as the Schlimbach court found it impossible to believe that the employees could seriously claim the patrons were not obviously intoxicated, similarly, here, we find the Lewises' claimed ignorance of Dr. Long's identity "simply unworthy of belief." (Schlimbach, supra, 193 Cal.App.4th at p. 1138, fn. 6.) We agree with the trial court that a level of knowledge sufficient to allow the Lewises to send a section 364 notice was also sufficient to allow them to name Dr. Long in the original complaint. As mentioned above, the Lewises give a number of reasons for their claimed ignorance of Dr. Long's true identity at the time of the original complaint, including that the discharge instructions were not revealed until the September 2013 depositions, the section 364 notice was not sent to Dr. Long's listed place of business but rather to the hospital where Ms. Lewis was treated, the section 364 notice did not contain any specific detail about Ms. Lewis's emergency visit(s), and the section 364 notice was still only addressed to a "Dr. Long.," without specifying a first name. We find these explanations so wanting in substance as to call into question whether they are worthy of credence.
It is true that a plaintiff claiming ignorance for purposes of section 474 generally has no duty to investigate. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170-1171, quoting Irving v. Carpentier (1886) 70 Cal. 23, 26 [" 'It is when [plaintiff] is actually ignorant of a certain fact, not when [plaintiff] might by the use of reasonable diligence have discovered it. Whether [plaintiff's] ignorance is from misfortune or negligence, [plaintiff] is alike ignorant, and this is all the statute requires.' "]; see also GM Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 594 ["The fact that the plaintiff had the means to obtain knowledge is irrelevant."]) But there was no need for further investigation here. Somehow the Lewises' attorney knew enough to put him on notice of their intent to sue him for medical malpractice. The knowledge of the Lewises' attorney is imputed to the Lewises. (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 828.) And in any event, counsel had some source of identifying information as the Lewises did—whether it was from medical records which made multiple references to "Dr. Long" or the discharge instructions that have "Long, Corey" written on them as well as Ms. Lewis's signature. The only reason to send a section 364 notice is as a prerequisite to a lawsuit. Yet, inexplicably, the Lewises did not name Dr. Long in the complaint.
Accordingly, we conclude that, based on the undisputed facts of record, there is no genuine dispute that the Lewises knew enough to name Dr. Long on the original complaint. Any assertion to the contrary is "facially . . . incredible as a matter of law[.]" (Housley, supra, 56 Cal.App.4th at p. 360.)
IV. DISPOSITION
The judgment is affirmed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Smith, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------