Statutes of Limitation: Equitable Tolling

Posted in Medical Malpractice,Statutes of Limitation on June 11, 2012

Scharer v. San Luis Equine Hospital, Inc., (Fourth District, February 28, 2012) — Cal.Rptr.3d —- ; 2012 WL 661684

The owner of a show horse which required euthanasia following surgery filed an action for malpractice against a veterinary hospital and three veterinarians. The defendants moved for judgment on the pleadings based upon the fact that the complaint had been filed 17 days beyond the one year statute for veterinary malpractice provided in Code of Civil Procedure § 340(c). The plaintiff opposed the motion, arguing that the because she had sent a pre-lawsuit notice of intent to sue under § 364, which requires such notice in actions against health care providers in certain professional negligence cases, the statute should have been extended an additional 90 days.

The trial court granted the motion, finding that the notice provisions of § 364 are not applicable to property damage claims. The court of appeal affirmed, rejecting the plaintiff’s contention that the statute was equitably tolled by the notice of intent to sue:

“[C]ourts have adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies he [or she], reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage.” (Addison v. State of California (1978) 21 Cal.3d 313, 317–318, 146 Cal.Rptr. 224, 578 P.2d 941, italics added.) As examples, Addison cited cases where plaintiffs sought relief in another forum or through a different form of action than was being asserted in the potentially time-barred second action: a timely workers’ compensation claim tolls the statute of limitations on a related suit for damages for the same injury (Elkins v. Derby (1974) 12 Cal.3d 410, 412, 115 Cal.Rptr. 641, 525 P.2d 81), and the statute of limitations on a second suit is tolled where plaintiff refiles promptly following the erroneous dismissal of a first suit (Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 411, 154 P.2d 399). (Addison, supra, 21 Cal.3d at p. 318, 146 Cal.Rptr. 224, 578 P.2d 941.)

By contrast, equitable tolling is not available in cases where the original complaint is defective.
. . .
Scharer is in a position similar to that of the plaintiff in Hu and like that plaintiff can only point to her claimed diligence in pursuing the defendants. Scharer did not seek one of “several legal remedies” prior to filing suit against the defendants. Section 364 is not a remedy. Rather, it is a prerequisite to seeking remedies that are not applicable to this case. As in Hu, Scharer’s good faith intentions are the only element of equitable tolling present in this case. A plaintiff must pursue a claim in a timely manner or demonstrate that he or she was prevented from doing so by improper action of the court or the defendants. Scharer cannot allege such facts in this case, and thus may not invoke the doctrine of equitable tolling.”