Kumari v. The Hospital Committee for the Livermore-Pleasant Areas (July 6, 2017, A148351) __ Cal.App.5th __ [2017 WL 2875859]
Plaintiff Veena Kumari fell and broke her shoulder at a ValleyCare hospital after giving birth. About four months later, Kumari sent ValleyCare a detailed, but informal, letter describing her injury and her belief that a nurse who left her unattended was negligent. The letter requested $240,000 and threatened that Kumari would “move to the court” if she was not paid within 20 days. ValleyCare’s insurer investigated and denied her claim after concluding there was no negligence. Kumari later hired a lawyer. One day shy of one year after Kumari’s fall, the lawyer sent ValleyCare a formal notice of intent to sue under Code of Civil Procedure section 364. About three months later (roughly fifteen months after the fall), Kumari and her husband filed a medical negligence action against ValleyCare. The trial court granted summary judgment to ValleyCare based on the one-year statute of limitations in Code of Civil Procedure section 340.5, and plaintiffs appealed.
The Court of Appeal affirmed. The court held that Kumari’s informal letter constituted a notice of intent to sue under section 364 because it contained the essential ingredients of notice (the factual and legal basis for a claim and a description of the loss). Such a notice tolls the statute of limitations for 90 days if served within the last 90 days before the statute expires. Yet here, Kumari sent her letter in the first half of the one-year statutory period, so the letter did not toll the statute and the claims filed fifteen months after the fall were time-barred. The court rejected Kumari’s claim that the operative notice was the later letter sent by her counsel because she had not intended her informal letter to constitute statutory notice. According to the court, an author’s subjective motivation for writing to a provider is irrelevant in determining whether that letter is a notice under section 364. Finally, the court held the second notice from Kumari’s lawyer was a nullity because notice had already been sent—his letter was therefore powerless to trigger the 90-day tolling provision.
Peder K. Batalden
Horvitz & Levy LLP
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Burbank, California 91505
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horvitzlevy.com
