Jay-Allen Eisen, C. Athena Roussos; Law Offices of Kenneth N. Meleyco and Kenneth N. Meleyco for Plaintiff and Appellant.
Low McKinley Baleria, Donna W. Low, Joseph M. Weber and Paul R. Baleria for Defendants and Respondents.
Plaintiff Joy R. Jones sued defendants Catholic Healthcare West and St. Joseph's MedicalCenter (St. Joseph's) for personal injuries she suffered while hospitalized in May 2002. Defendants moved for summary judgment on grounds Jones's action was barred by the statute of limitations set forth in Code of Civil Procedure section 340.5,[1] and the purported notice of intent to sue which Jones faxed to St. Joseph's president on February 2, 2004, did not extend the time within which to file an action against defendants. The court granted summary judgment and Jones appeals.
Jones argues her complaint was timely as a matter of law because: (1) the parties entered into a series of tolling agreements that extended the one-year statute of limitations under section 340.5 through January 31, 2004; and (2) her February 2, 2004, letter of intent to sue effectively tolled the statute of limitations for 90 days based on the plain language of section 364. Jones does not challenge the portion of the court's ruling that there were triable issues of fact whether an earlier letter constituted a notice of intent to sue, as argued by defendants. However, she emphasizes the correctness of that ruling as a back-up argument. We conclude the trial court misconstrued section 364 and erred in granting defendants' motion for summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 20, 2002, Jones underwent total hip replacement surgery at St. Joseph's. While hospitalized following surgery, Jones fell in her hospital room on May 21, 2002, and suffered injuries to her jaw and teeth. Her complaint alleges the fall was caused by the nursing staff's negligence.
On May 6, 2003, Jones sent a letter to Don Wiley, the president of St. Joseph's MedicalCenter, describing the circumstances surrounding the fall and asking the hospital to â€
Description
Code of Civil Procedure Sec. 364, which extends the one year period in which to sue a health care provider by 90 days where the plaintiff has given timely notice of intent to sue, permits the notice of intent to be served by fax. Code provisions limiting fax service of certain documents to cases in which the parties have agreed to such service do not apply to prelitigation notices.
