Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. SCV127872. W. Robert Fawke, Judge.
Lewis Brisbois Bisgaard & Smith, Michael K. Johnson and Jessi C. Huff for Plaintiff and Appellant.
Creason & Aarvig, Larry A. Dunlap and James A. Creason for Defendant and Respondent.
OPINION
McKinster Acting P.J.
Plaintiff George Paul sued California Emergency Physicians Medical Group (hereafter defendant or CEPMG) for professional negligence. The trial court granted summary judgment for CEPMG on the ground that service of a notice of intention to sue pursuant to Code of Civil Procedure section 364 on St. Bernardine Medical Center (hereafter St. Bernardine) did not toll the statute of limitations as to CEPMG, and that plaintiff’s complaint was therefore time-barred. On a motion for reconsideration, the court held that the statute of limitations had run before plaintiff served CEPMG with a section 364 notice.
All further statutory references will be to the Code of Civil Procedure unless otherwise indicated. Section 364, which requires at least 90 days’ notice of intention to sue a health care provider and which provides a 90-day tolling of the statute of limitations under some circumstances, is discussed below.
Plaintiff raises the same issues on appeal. As we will discuss, service of the section 364 notice on St. Bernardine would have tolled the statute of limitations as to CEPMG only if plaintiff had sued CEPMG as a Doe defendant and later amended the complaint to allege CEPMG’s true name. Because plaintiff knew CEPMG’s identity before he filed his complaint and sued CEPMG by its true name in the complaint, service of the section 364 notice on St. Bernardine did not toll the statute of limitations as to CEPMG. We will therefore affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On February 28, 2004, plaintiff sought treatment at St. Bernardine for a ganglion cyst in his left wrist and thumb area. Physician’s assistant Jody Roff aspirated the cyst. Roff was employed by CEPMG, an independent contractor. The treatment apparently did not resolve the pain plaintiff had been experiencing. He saw his own physician, Dr. Jih, on March 4, 2004. In his declaration, Dr. Jih explained that continued pain is common for several days following aspiration of a ganglion cyst and that he did not suspect any malpractice at that time. Plaintiff returned to Dr. Jih on May 19, 2004, with continuing symptoms. At that point, Dr. Jih suspected negligence in the aspiration of the cyst and so informed plaintiff.
Plaintiff was under the impression that the person who treated him at St. Bernardine was a nurse practitioner who was employed by the medical center. On April 1, 2005, he served a notice of intention to commence legal action, addressed to St. Bernardine and “Doe Nurse.” He first learned of the existence of CEPMG and its relationship to his claim after having served the notice. On June 30, 2005, he served CEPMG with a notice of intention to commence legal action. On that same date, he filed his complaint for professional negligence against St. Bernardine and CEPMG. The complaint also named “Doe 1 Nurse” and Does 2 through 25. He apparently later dismissed the complaint as to St. Bernardine.
Plaintiff and his attorney stated that they did not learn about CEPMG until June 2006. Counsel also stated that they learned about CEPMG on the day they were required to file the suit against St. Bernardine. The latter statement is obviously correct, in that the complaint naming CEPMG was filed on June 30, 2005.
CEPMG moved for summary judgment on several grounds, including the running of the statute of limitations. CEPMG contended that the complaint was not timely because it was filed more than one year after plaintiff discovered the injury, which it asserted had occurred on March 4, 2004, or at the latest on April 3, 2004. The pertinent portion of plaintiff’s opposition to the motion is omitted from the joint appendix. The opposition apparently asserted that plaintiff had served the section 364 notice on St. Bernardine and Doe Nurse on April 1, 2005, and argued that because service of the notice tolled the statute of limitations for 90 days after the date of service, the complaint was timely filed on June 30, 2005. For reasons not pertinent here, the court allowed supplemental briefing on the tolling issue, and both parties filed supplemental briefing.
As to the other grounds asserted in the motion, the court found that there were triable issues of fact.
At the continued hearing on the motion, the court held that the evidence showed that plaintiff became aware of the injury on April 3, 2004. It held that service of the notice on the hospital on April 1, 2005, did not toll the statute of limitations as to CEPMG because plaintiff failed to show that he was ignorant of CEPMG’s identity when he filed the complaint. The court held that the complaint was therefore time-barred. Accordingly, it granted the motion for summary judgment.
In his opposition to the motion, plaintiff asserted that he discovered the injury on May 19, 2004, when Dr. Jih first informed him that the procedure might have been improperly performed. However, he also referred to his answers to special interrogatories, in which he stated that he first formed that belief on April 3, 2004. CEPMG asserted that plaintiff discovered the injury on March 4, 2004, when he first consulted Dr. Jih. The date of discovery is not material, however, because even if we assume that the statute of limitations began to run on the latest of the three possible dates—May 19, 2004—plaintiff’s complaint was time-barred as to CEPMG when it was filed on June 30, 2005, unless the statute of limitations was tolled.
CEPMG contends that plaintiff was not ignorant of the identity of the treating physicians because he had signed an information and consent to treatment identifying “Dr. PA-C Jody Roff” and Dr. Pierre Assaf and stating that both were independent contractors. Plaintiff contends that he was not given a copy of the consent form and that he did not learn the identity of the person who treated him or of CEPMG until after he served the section 364 notice on St. Bernardine. As we discuss below, the date on which plaintiff learned of CEPMG’s identity and relationship to his alleged injury is not a material disputed fact because it is irrelevant to our determination that service of the section 364 notice on St. Bernardine did not toll the statute of limitations as to CEPMG.
Plaintiff filed a motion for reconsideration, asserting that the complaint was timely because he had served a section 364 notice on CEPMG on June 30, 2005. Counsel for plaintiff stated that he had not introduced the June 30 notice in his opposition to the summary judgment motion or in connection with his supplemental briefing because he believed that the April 1 notice to St. Bernardine sufficed to toll the statute of limitations as to CEPMG because as of that date, plaintiff was unaware of the identity of CEPMG. The court denied the motion for reconsideration, finding that plaintiff did not offer a satisfactory explanation for his failure to provide the June 30 notice with his supplemental brief in opposition to the summary judgment motion. The court also held that the June 30 notice would not have affected the outcome of the summary judgment motion in any event, in that it was served after the statute of limitations had run as to CEPMG.
Plaintiff filed a timely notice of appeal.
LEGAL ANALYSIS
THE STATUTE OF LIMITATIONS WAS NOT TOLLED AS TO CEPMG
We review a summary judgment independently, applying the same legal standard applicable in the trial court to determine whether there is a genuine issue of material fact or whether the moving party is entitled to judgment as a matter of law. (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223.)
A. Plaintiff’s Argument Is Based on a Faulty Premise
Plaintiff contends that there is a triable issue of material fact as to whether he knew the identity of CEPMG at the time he served the section 364 notice on St. Bernardine. He contends that this fact is material because service of a section 364 notice extends the statute of limitations as to the known defendants served with the notice and as to all unknown defendants. Thus, if CEPMG’s identity and relationship to his injury were unknown to him on the date he served the notice on St. Bernardine, he contends, the notice tolled the statute of limitations as to CEPMG as well as to St. Bernardine until July 1, 2005. Plaintiff’s argument is based on a faulty premise, however, because section 364 provides for tolling the statute of limitations only as to unknown defendants who remain unknown when the complaint is filed. Because CEPMG was sued by its true name, service of the section 364 notice on St. Bernardine did not toll the statute of limitations as to CEPMG as a matter of law. It is therefore immaterial whether plaintiff knew of CEPMG’s identity and relationship to the alleged injury on April 1, 2005.
B. Section 364 Tolls the Statute of Limitations Only As To An “Unknown” Defendant Who Is Sued Under A Fictitious Name.
Section 340.5 provides that an action for personal injury based on the professional negligence of a health care provider must be commenced within “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.) Section 364 provides that no such action may be commenced unless the defendant has been given at least 90 days’ prior notice of intention to commence the action. (§ 364, subd. (a).) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the statue of limitations is tolled for 90 days from the date of service of the notice. (§ 364, subd. (d); Woods v. Young (1991) 53 Cal.3d 315, 325-328.)
The notice requirement does not apply 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.” (§ 364, subd. (e).) Section 474 permits a plaintiff to sue defendants by fictitious names and to amend the complaint to substitute the true name of a fictitiously-named defendant when the party’s true name is discovered. If the defendant’s true name or relationship to the alleged injury was not known to the plaintiff when the suit was filed, the amendment relates back to the date of filing the complaint and thus defeats a claim that the statute of limitations has run as to the newly named defendant. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1169-1170.) Therefore, the courts have construed section 364, subdivision (e) to provide that service of a section 364 notice on a health care provider serves to toll the statute of limitations not only as to that defendant but also as to any health care provider whose identity is not known at that time and who is later sued under a fictitious name. After the complaint has been filed, a fictitiously-named defendant need not be served with a section 364 notice before the complaint may be amended to name that defendant. (Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 563-568, 569-571 (Camarillo); Grimm v. Thayer (1987) 188 Cal.App.3d 866, 870-871, disapproved on other grounds in Woods v. Young, supra, 53 Cal.3d at p. 328, fn. 4, as discussed in Camarillo, at pp. 563-568.)
Plaintiff’s argument is based on the premise that it is sufficient, for purposes of section 364, subdivision (e), that the defendant’s identity is unknown when the section 364 notice is served on a known defendant. By its express terms, however, subdivision (e) applies only to a defendant whose identity is still unknown when the plaintiff files his or her complaint and is therefore identified by a fictitious name. Here, although CEPMG’s identity may have been unknown when plaintiff served the section 364 notice on St. Bernardine, plaintiff discovered CEPMG’s identity before he filed his complaint, and he did not sue CEPMG under a fictitious name but rather by its true name. Service of the section 364 notice on St. Bernardine therefore did not toll the statute of limitations as to CEPMG.
The cases plaintiff relies on also do not support his contention.
In Godwin v. City of Bellflower (1992) 5 Cal.App.4th 1625 (Godwin), the plaintiff served a section 364 notice on a hospital but did not serve one on either of the two doctors whom he later named in his complaint. It was undisputed that he knew the names of the doctors when he served the section 364 notice on the hospital. (Godwin, at pp. 1627-1628.) The Court of Appeal rejected the contention that service of the section 364 notice on the hospital tolled the statute of limitations as to the doctors as well, holding that when the plaintiff “has actual knowledge of the identities of the treating physician whom he intends to sue, section 364, subdivision (a) notice on the hospital, without naming the physicians, is insufficient notice to [the physicians] to extend the statute of limitations under section 364, subdivision (d).” (Godwin, at p. 1632.) Thus, Godwin does not involve a situation such as that presented in this case.
As plaintiff points out, the court did state, in a footnote, that section 364, subdivision (e) relieves the plaintiff of the obligation to give prelitigation notice if he is unaware of the physician’s identity. (Godwin, supra, 5 Cal.App.4th at p. 1632, fn. 5.) Plaintiff contends that this statement constitutes a holding that service of a section 364 notice on a known defendant tolls the statute of limitations “for all defendants who are unknown to the plaintiff at the time the notice is served,” including those whose identities become known in time to be named as defendants when the complaint is filed. In context, however, that is clearly not what the court intended that statement to mean, because that was not the issue which was before the court. As noted above, the sole issue in Godwin was whether notice to the hospital sufficed to toll the statute of limitations as to other defendants whose identity was known to the plaintiff. “‘Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered.’ [Citation.]” (Camarillo, supra, 105 Cal.App.4th at p. 565.) Nowhere does Godwin state that section 364, subdivision (e) means anything other than what it expressly states, i.e., that the notice requirement does not apply to a defendant whose identity remains unknown to the plaintiff at the time he or she files the complaint.
Plaintiff next cites Camarillo, supra, 105 Cal.App.4th 552. That case, too, is inapposite, in that it does not involve a defendant whose identity became known after service of a section 364 notice but before the complaint was filed. That case arose in the context of a legal malpractice suit. Nearly one year after the birth of her baby, the plaintiff, Camarillo, consulted the defendant attorneys about filing a medical malpractice suit against the hospital where her baby was born, the health center where she received her prenatal care and the delivery room doctor, whose negligence she believed had caused injury to herself and the baby. She did not know the name of the doctor. Recognizing that the statute of limitations was about to run as to Camarillo’s own cause of action (that of the infant was subject to a longer limitations period), the attorneys served a section 364 notice on the hospital and the health center. They then informed Camarillo that they would not represent her further and advised her that she had only 90 days to file a complaint for medical malpractice. Camarillo did not file a complaint within the 90 days available. By the time she consulted another attorney eight months later, her claim against the delivery room doctor was time-barred. She then sued the attorneys, alleging that they should have filed a complaint naming the delivery room doctor as a Doe defendant in order to preserve her claim against the unknown doctor. (Camarillo,at pp. 556, 557-559, 570.)
Prior to trial on the legal malpractice claim, the parties stipulated that the attorneys had not known at any relevant time who the delivery room doctor was. Indeed, the doctor’s identity was apparently still unknown at that point. Based on the stipulation, the trial court granted the defendants’ motion for summary judgment. (Camarillo, supra, 105 Cal.App.4th at p. 559.) On appeal, the issue was whether the defendants’ failure to file a complaint naming the delivery room doctor as a Doe defendant was malpractice. (Id. at pp. 561, 568.) The court concluded that the attorneys were not required to file a complaint suing the doctor under a fictitious name in order to preserve the plaintiff’s claim because requiring them to do so would be inconsistent with the factual and procedural posture of the case, i.e., that the attorneys had maintained their right to decide whether to take Camarillo’s case and declined to do so, while informing her of the time limit for filing a complaint. (Id. at pp. 563-566, 570-571.) Moreover, the court held, “by sending the section 364 notice [to the known defendants, the attorneys] did not fail to preserve [Camarillo’s] right of action against unknown defendants.” (Id. at p. 571.) Although the court did not articulate the basis for this statement, we understand it to mean that service of the section 364 notice on the known defendants would have allowed Camarillo to file her complaint after the expiration of the 90-day notice period, suing the doctor as a Doe defendant, and, after discovery of the doctor’s identity, amend her complaint to name the doctor as a defendant.
Davis v. Marin (2000) 80 Cal.App.4th 380 (Davis), which plaintiff discusses in his reply brief, is also inapposite. In that case, Davis served a section 364 notice on Dr. Marin on December 1, 1997, asserting her intent to sue for injuries known to her as of December 6, 1996, resulting from the doctor’s use of a muscle stimulator during the course of chiropractic treatment. On December 2, 1997, Davis filed a suit for medical malpractice and products liability, alleging that Does 101 to 200 injured her by the negligent use of a muscle stimulator. Dr. Marin was not named as a defendant. On February 24, 1998, Davis filed an amendment to the complaint, naming Dr. Marin as Doe 101. The court rejected Dr. Marin’s contention that the February 24 amendment was untimely because her identity was known to the plaintiff when the complaint was filed, and that the amendment therefore could not relate back to the date of filing the complaint so as to bring it within the statute of limitations, pursuant to section 364, subdivision (e) and section 474. The court held that service of the section 364 notice on Dr. Marin was timely to toll the statute of limitations. Calling it a matter of form over substance, the court deemed the purported amendment to be a timely amended complaint. (Davis,at pp. 382-384, 386-387.)
Although the issue in Davis, supra, 80 Cal.App.4th 380, is in no way similar to the issue in this case, it does serve to illustrate the reasons that plaintiff’s argument fails. Section 474 enables a plaintiff who is truly ignorant of the identity of a person responsible for his or her injury to preserve the claim until the defendant’s identity can be discovered. Once the defendant’s identity is discovered, amendment of the complaint to add that defendant by name relates back to the original filing date of the complaint, as though the defendant had been named at that time. (Fuller v. Tucker, supra, 84 Cal.App.4th at pp. 1169-1170.) Subdivision (e) of section 364, which expressly refers to section 474, serves the same purpose—it preserves the plaintiff’s ability to sue an unknown health care provider, even though the plaintiff is unable to serve a timely notice of intention on that provider. Neither section 474 nor section 364, subdivision (e) is operative if the defendant’s identity and relationship to the alleged injury is known to the plaintiff when the complaint is filed. Thus, in Davis,the purported “amendment” of the complaint to substitute Dr. Marin for a Doe defendant was ineffectual, in that Davis knew Dr. Marin’s relationship to her injury when she filed the original complaint. However, the claim against Dr. Marin could be salvaged because a section 364 notice had been served on her before the statute of limitations had expired and the purported amendment was also filed before the statute of limitations expired. The court could therefore treat the amendment as an amended complaint adding a new defendant, as opposed to substituting a named defendant for a Doe defendant. (Davis, at pp. 386-387.) Conversely, in this case, plaintiff’s discovery of CEPMG’s identity and relationship to his injury before he filed his complaint precludes him from relying on service of the section 364 notice on St. Bernardine to toll the statute of limitations.
Plaintiff’s service of a section 364 notice on CEPMG on June 30, 2005, was also ineffectual, because the statute of limitations had already expired, regardless of which trigger date is correct—April 3, 2004 or May 19, 2004.
At oral argument, plaintiff argued that our interpretation of section 364, subdivisions (d) and (e) is at odds with the underlying purpose of the statute. He asserted that the purpose of the notice and tolling provision is to provide time for parties to medical malpractice suits to settle the claim without the need for litigation and to afford plaintiffs additional time to investigate and to determine the existence of additional responsible parties. He contended that our interpretation creates an unwarranted dilemma for trial attorneys.
We agree that section 364, subdivisions (d) and (e) create an anomaly, because a plaintiff cannot sue a defendant whose identity he discovers after service of the section 364 notice on a known defendant unless time remains under the untolled statute of limitations, whereas he could have sued the same defendant under the tolled statute of limitations if the defendant’s identity had remained unknown until after the complaint was filed. However, subdivision (e) could not more plainly state that the waiver of the notice provisions applies only to a defendant whose identity remains unknown to the plaintiff “at the time of filing the complaint.” (§ 364, subd. (e).) We cannot modify subdivision (e) to include a provision that applies to a defendant whose identity is unknown at the time of service of the notice of intent but whose identity becomes known after the expiration of the untolled statute of limitations and before the complaint has been filed: A court may not insert a provision into a statute under the guise of “interpreting” unambiguous statutory language. (People v. Guzman (2005) 35 Cal.4th 577, 586-587; see § 1858.) Furthermore, contrary to plaintiff’s contention that the purpose of the tolling provision is to afford plaintiffs additional time to discover the identity of additional defendants, the California Supreme Court has held that the purpose of that provision is to reduce the number of medical malpractice suits filed in the courts by encouraging the parties to settle their claims outside the formal litigation process. (Woods v. Young, supra, 53 Cal.3d at pp. 320, 325, 326, 327; Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 214-215.)
For the reasons stated above, summary judgment was properly granted.
PLAINTIFF FORFEITED ANY CONTENTION THAT CEPMG FAILED TO MEET ITS BURDEN OF PROOF IN ITS SUMMARY JUDGMENT MOTION
In his reply brief, plaintiff contends that because CEPMG did not assert in its motion for summary judgment that the statute of limitations was not tolled by virtue of plaintiff’s service of the section 364 motion on St. Bernardine, the motion could not properly be granted on the ground that the statute of limitations was not tolled. He notes that the statute of limitations issue in the summary judgment motion was based exclusively on CEPMG’s contention that the undisputed evidence established that plaintiff was aware of his injury and its negligent cause on March 4, 2004. He contends that a defendant moving for summary judgment based on an affirmative defense has the burden of producing evidence which proves a complete defense. He contends that because CEPMG did not produce evidence in support of the motion that the statute of limitations was not tolled, the burden did not shift to him to demonstrate that the statute of limitations was tolled by service of the section 364 motion.
At oral argument, plaintiff’s attorney stated that he raised this issue in his reply brief only in response to an argument made by CEPMG. However, in the reply brief, plaintiff asserts that the summary judgment motion should have been denied on this basis, and we therefore treat it as an affirmative argument for relief.
Plaintiff did not raise that issue in his opening brief. An appellate court will ordinarily not address an issue raised for the first time in an appellant’s reply brief because to do so would deprive the respondent of the opportunity to address the issue in its briefing. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) Accordingly, we deem review of the issue forfeited.
Even if we were to address the issue, however, we would find it to be without merit. When a defendant makes a prima facie showing in a summary judgment motion that an affirmative defense defeats the action, the burden shifts to the plaintiff to controvert the defense, either by raising a triable issue of fact or by showing that the defense is inapplicable as a matter of law. (See Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1738-1740.) Here, CEPMG provided evidence in its motion that the procedure was performed on February 28, 2004, and that plaintiff became aware on March 4, 2004, that the procedure was improperly performed. The complaint was not filed until June 30, 2005. Defendant therefore made a prima facie showing that the one-year statute of limitations had expired before the complaint was filed, and the burden shifted to plaintiff to refute it.
DISPOSITION
The judgment in favor of California Emergency Physicians Medical Group is affirmed. California Emergency Physicians Medical Group is awarded its costs on appeal.
I concur: Richli, J.
MILLER, J., dissenting.
The majority concludes that Code of Civil Procedure section 364, subdivision (e), mandates the dismissal of a defendant medical provider whose identity is discovered during the 90-day tolling period provided by section 364, subdivision (d), and who is named in the original complaint. My colleagues do concede that section 364, subdivisions (d) and (e), by their terms, “create an anomaly, because a plaintiff cannot sue a defendant whose identity he discovers after service of the section 364 notice on a known defendant unless time remains under the untolled statute of limitations, whereas he could have sued the same defendant under the tolled statute of limitations if the defendant’s identity had remained unknown until after the complaint was filed.” (Maj. Opn., at p. 14.) However, they maintain that their hands are tied in that a plain reading of the statute requires this result. I respectfully disagree.
All further statutory references will be to the Code of Civil Procedure unless otherwise indicated.
Section 364 was enacted in 1975 as part of the Medical Injury Compensation Reform Act (MICRA), a principal purpose of which was to reduce the cost and increase the efficiency of medical malpractice litigation. (Woods v. Young (1991) 53 Cal.3d 315, 319-320 (Woods).) To that end, section 364, subdivision (a), requires attorneys, before filing an action for professional negligence against a health care provider, to file a notice of intent to sue; section 364, subdivision (d), extends by 90 days the time for commencement of the action if the notice of intent is served within 90 days of the expiration of the applicable statute of limitations. However, the statute, by its terms, has been said to create a situation that clearly frustrates the legislative purpose. As our high court explained: “A literal application of section 364(d) . . . leads to incongruous results, as this example shows: A plaintiff serves the 90-day notice of intent to sue required by section 364(a) 50 days before expiration of the 1-year statute of limitations. Because section 364(d) would in that case extend the 1-year limitations period by 90 days, calculated from the date of service of the 90-day notice, the plaintiff has 1 year and 40 days in which to file the action. [¶] If our hypothetical plaintiff were to file suit on the last day of the extension, the plaintiff would violate the 90-day waiting requirement of section 364(a), which requires the plaintiff to give the defendant health care provider at least 90 days’ prior notice of intent to sue. If, however, the plaintiff were to file the action one day after the extended period, that is, one year and forty-one days after discovery of the injury, the action would be barred by the one-year statute of limitations because it was filed one day beyond the limitations period as extended. [¶] Thus, when applied literally, section 364(d) accomplishes nothing.” (Woods, supra, 53 Cal.3d at p. 321, italics added.)
In order to effectuate section 364’s legislative purpose (see Woods, supra, 53 Cal.3d at p. 325), the Woods court therefore held that “when a plaintiff gives the 90-day notice of intent to sue required by section 364(a) in the last 90 days of the 1-year statute of limitations that statute is tolled for 90 days.” (Id. at p. 328, fn. omitted.)
Prior to Woods, the court in Grimm v. Thayer (1987) 188 Cal.App.3d 866 (Grimm), in interpreting the statute, recognized and purported to resolve a complication which surfaced when a plaintiff, at the time of filing the section 364, subdivision (a), notice, did not know the identity of all the potentially involved medical providers. However, after certain statements in Grimm, though ostensibly dealing with another issue (see Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 566 (Camarillo)), were disapproved by our high court as being inconsistent with the Woods holding (Woods, supra, 53 Cal.3d at p. 328 & fn. 4), the court in Camarillo saw fit to clarify the Grimm court’s conclusion: “The statutory purpose of section 364, promoting negotiation, cannot apply when the plaintiff does not know the identity of the person with whom she [or he] might want to negotiate. Even though section 364, subdivisions (a) and (d) do not expressly refer to unserved, unknown defendants, those subdivisions are properly to be construed as providing a solution to that particular problem. The only commonsense interpretation that reconciles sections 474 and 364 is one that finds that as to unknown defendants, the limitations rules must acknowledge that section 364 notices can only be given to known defendants, and that here, no further action was required of these Defendant Attorneys to preserve [the plaintiff’s] right of action against the unknown delivery doctor.” (Camarillo, at p. 571.)
Thus, Grimm stands for the proposition that a notice of intention to sue under section 364, subdivision (a), need not be given to a Doe defendant before the complaint is amended to name that defendant. (See Camarillo, supra, 105 Cal.App.4th at p. 567.) And, as explained by the court in Camarillo, the filing of a section 364, subdivision (a), notice upon a known medical provider incorporates within it an unknown medical provider: “To require [the plaintiff’s proposed attorneys] to [file a complaint naming a potential doe defendant under section 474] would be inconsistent with the factual and procedural posture of the case, that [the plaintiff] was asking [her proposed attorneys] whether they would take her case, and they maintained the right to decide whether or not to do so. By undertaking to preserve her right of action against known defendants, by sending the section 364 notice, they did not fail to preserve her right of action against unknown defendants. They took a valid course of action under the statutes and under the existing authority, such as Grimm, Woods, and their progeny, and they may not be charged here with legal malpractice.” (Camarillo, at p. 571) Furthermore, noting that the reviewing court in Grimm “actually engaged in direct statutory construction of section 364, finding that to implement its legislative policy, section 364, subdivisions (d) and (e) must be construed to mean that no 90-day notice need be given to Doe defendants before a complaint is amended to name them,” (id. at p. 570) the court explained: “Otherwise, a plaintiff’s attorney would have an incentive to file a complaint before the 90-day notice period had elapsed, in order to preserve an action against Doe defendants, and this proposed course of action would interfere with the statutory purpose of providing a 90-[day] negotiation period before any lawsuit was commenced. [Citation.]” (Ibid.)
Subdivision (e) of section 364 states: “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.” (Italics added.) The majority concludes that “subdivision (e) could not more plainly state that the waiver of the notice provisions applies only to a defendant whose identity remains unknown to the plaintiff ‘at the time of filing the complaint.’ [Citation.]” (Maj. Opn. at p. 14.) It is with this very concept that I take exception. As I endeavor to explain below, I believe that section 364, subdivision (e), by its own terms, applies only to a fictitious defendant named in the original complaint whose true name is discovered after the expiration of the 90-day tolling period. And in any event, I believe that a reasonable interpretation of section 364, as in Grimm and Camarillo, accomplishes the legislative goal underlying MICRA.
“In construing statutes, we must determine and effectuate legislative intent. [Citations.] To ascertain intent, we look first to the words of the statutes. [Citations.] ‘Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.’ [Citation.] Interpretations that lead to absurd results or render words surplusage are to be avoided. [Citation.]” (Woods, supra, 53 Cal.3d at p. 323.)
First, in light of its use of the conjunctive “and,” application of section 364, subdivision (e), mandates satisfaction of two distinct criteria before the remaining provisions of section 364 are deemed not to apply. That is, the defendant’s name must be “unknown to the plaintiff at the time of filing of the complaint” and the same defendant must have been identified in the complaint “by a fictitious name, as provided in Section 474.” In other words, section 364, subdivision (e) comes into play when a timely subdivision (a), notice has been filed within the last 90 days of the limitations period, a complaint naming a fictitious defendant has been filed within the 90-day tolling period, and the true identity of the fictitious defendant is subsequently discovered. Thus, section 364, subdivision (e), infers that the original complaint may be amended without a need to file another section 364, subdivision (a), notice, as the initial notice is deemed to encompass any future unknown defendants. This is in accord with the framework of section 364 as set forth in Grimm, Woods, and Camarillo. Subdivision (e) of section 364 would not prevent a plaintiff from filing a complaint, within the 90-day tolling period, naming a defendant, as long as the complaint and a section 364, subdivision (a), notice was timely filed. The new defendant would be encompassed within the section 364, subdivision (a), notice and would not be subject to dismissal because his or her name was known to the plaintiff “at the time of filing the complaint.” The only issue that would remain would be when plaintiff discovered the identity of the new defendant and whether that occurred before or after the section 364, subdivision (a), notice was filed. (Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1560.)
Additionally, a reasonable and harmonious interpretation of section 364, subdivision (e), serves to eliminate the anomaly in its application, as referenced above. In the majority’s view, a plaintiff who discovers a new defendant after the expiration of the 90-day tolling period can pursue a cause of action against that defendant whereas a plaintiff who discovers a defendant during the 90-day window cannot. This could not have been what the Legislature intended. To avoid the consequences of what I can only view as an absurdity, the attorney for a plaintiff is compelled to file his or her complaint, naming fictitious defendants prior to the expiration of the one-year statute of limitations, or face a possible malpractice action in the event he or she discovers a new potential defendant during that 90-day window. This, of course, would undermine the legislative purpose of encouraging parties to enter into “negotiations” prior to filing a complaint. Thus, in conjunction with the holdings in Grimm, Wood, and Camarillo, a reasonable and harmonious interpretation obtains only where section 364, subdivision (e), is applied to fictitious defendants discovered after the 90-day tolling period. This would allow a plaintiff who discovers a new defendant during the 90-day window to immediately enter into negotiations with this new party, prior to filing a complaint.
For these reasons, I would reverse the judgment.