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Hope Dicampli-Mintz v. County of Santa Clara et al

May 26, 2011


(Santa Clara County Super. Ct. No. CV089159) The Honorable William J. Elfving

The opinion of the court was delivered by: Rushing, P.J.


Plaintiff Hope DiCampli-Mintz brought this action alleging that she suffered injuries as a result of negligent medical treatment by two physicians working for the County of Santa Clara (County) at its Valley Medical Center (Valley Medical). County moved for summary judgment on the ground that plaintiff's delivery of a notice of claim to the Risk Management Department at Valley Medical did not comply with the requirements of Government Code section 915*fn1 and associated statutes. The trial court granted the motion. We will reverse, joining the courts of several other states in holding that delivery of a pre-suit government claim to a department of the target entity charged with defending or managing claims against that entity may constitute substantial compliance with the claims requirement, so long as the purposes of the act are satisfied and no prejudice is suffered by the defendant. In reaching this conclusion we decline to follow recent authority effectively repudiating the long-standing doctrine of substantial compliance as applied in this context.


On April 4, 2006, defendants Bao-Thuong Bui and Abraham Sklar performed a hysterectomy on plaintiff at Valley Medical, a hospital owned and operated by County. According to a later operative report, she complained in the recovery room of cramps in her left leg, which appeared bluish and cold to the touch. Emergency tomography disclosed that her "left iliac artery" was "completely interrupted." She was "urgently" returned to surgery, where it "immediately became apparent that the left external iliac artery was tied and divided, as was the left iliac vein."

Some months later, in mid-2006, plaintiff went to Valley Medical's emergency department because she "was in a great deal of pain." On this occasion an emergency room physician told her that blood vessels had been damaged in the first surgery, requiring a second surgery. On October 25, 2006, another doctor expressed sympathy for her condition and asked if she had consulted an attorney.

By April 2007, plaintiff had engaged an attorney. He prepared a letter for transmission to Valley Medical, Bui, and Sklar, giving "notice, in accordance with Section 364 of the Code of Civil Procedure, that Hope DiCampli-Mintz will file suit against you for damages resulting from the personal injury of Hope DiCampli-Mintz." The letter stated that defendants "negligently performed a laparoscopic assisted vaginal hysterectomy so as to lacerate the inferior epigastric artery which was clamped and tied off resulting in the stoppage of major blood flow to the left leg. Thereafter, rather than repairing the blood flow to the left leg, Dr. Sklar and Dr. Bui simply closed the incision which was part of the vaginal hysterectomy and returned Hope DiCampli-Mintz to the recovery room." The letter contained a request that the recipient "forward . . . [it] to your insurance carrier and have them contact the undersigned at their earliest convenience." County conceded for purposes of summary judgment that so far as content is concerned, the letter satisfied the requirements of the government claims act and "constitute[d] a tort claim." (See Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 701-702.)

Plaintiff's attorney delivered three copies of this letter on April 3, 2007, addressed to Bui, Sklar, and the Risk Management Department, to "Cynthia Lopez of the Medical Staffing Office in the Administration Building, 751 South Bascom Avenue, San Jose, California, on April 3, 2007, at 2:50 P.M., for delivery to each of the individually named parties." He sent three additional copies, similarly addressed, by certified mail; these were received by Valley Medical's "mail services department" on April 6, 2007. On that day, plaintiff's attorney received a recorded telephone message from David Schoendaler, who County concedes was "a liability claims adjustor working for the County Risk Management Department." On April 23, 2007, Schoendaler and plaintiff's attorney spoke by telephone. According to the latter, "Mr. S[c]hoendaler noted receipt of the Notice of Intention; verbally opined that service on Santa Clara Valley Medical required a tort claim which was late; verbally questioned whether a tort claim was required as to Dr. Sklar and Dr. Bui and indicated that he would look into that; stated that Ms. DiCampli-Mintz had an interesting case; made note of Plaintiff's obesity and said a theory of defense was that Plaintiff placed herself at risk with her obesity; and finally advised that Dave Rollo would be the attorney handling the defense for Santa Clara County. Mr. Schoendaler never mentioned that the Notice of Intention was presented to the wrong party." Plaintiff never received written notice that her claim was untimely or otherwise deficient.

Plaintiff initiated this action on July 7, 2007, by filing a complaint in which Bui, Sklar, and Valley Medical were named as defendants. The complaint acknowledged that "Plaintiff was required to comply with . . . [Government Claims Statutes]," but asserted that she was "excused" from doing so because defendants "failed to provide notice to Plaintiff as required by Government Code §§ 910.8, 911, 911.3, and therefore waived any defenses they may have had to the sufficiency of Plaintiff's claim (Notice of Intention to Commence Action) as presented."

On August 29, 2007, county counsel filed an answer in the name of "Defendant, County of Santa Clara . . . , for itself and its Santa Clara Valley Medical Center."*fn2 It denied plaintiff's allegations and asserted 39 affirmative defenses, including that plaintiff "failed to comply with the provisions of the Califomia Tort Claims Act," and that her claims were "barred by the provisions of Government Code §§ 810 through 1000, inclusive." About a month later, defendant Sklar filed a separate but substantially identical answer. Plaintiff apparently experienced some difficulty serving process on defendant Bui. The parties eventually stipulated that both individual defendants would be dismissed and that they had acted at all relevant times "in the course and scope of their employment with the County."

On November 7, 2008, County filed a motion for summary judgment "based on Plaintiff's failure to present a timely Government Tort Claim to the County pursuant to Government Code section 915." County asserted that plaintiff's delivery and mailing of the claim to the Risk Management Department and the two doctors did not satisfy the requirements of the act. County also asserted that the claim was untimely, but as will appear below, this was not a logically independent ground for the motion.

In opposition to the motion, plaintiff argued that she had substantially complied with the act by delivering the claim to the Risk Management Department, which was the county department most directly involved with the processing and defense of tort claims against County. Plaintiff requested judicial notice of four web pages in County's own web domain describing the function of the Risk Management Department and its staff. One of these indicated that the department comprised four divisions, including "Insurance/Claims," which "is responsible for preventing, eliminating, reducing, or transferring the County risks where ever possible and for properly funding remaining risks through Insurance or self-funding, except for personnel benefits and workers' compensation." The other pages were job descriptions for "Claims Manager," "Liability Claims Adjuster III," and "Liability Claims Adjuster II." The "Definition" section of the Claims Manager page read, "Under general direction, to administer the General Services Agency Liability and Property Claims Adjusting Program for the County and Transit District and the Valley Medical Center Subrogation Program and to implement County policy regarding claims and litigation and to advise and participate in liability determination in the more complex, sensitive or major claim settlements." All three descriptions discussed the power and duty of the incumbent to investigate and settle, or recommend settlement of, claims against the county.

The trial court granted summary judgment by a written order stating that (1) the county made a sufficient showing of noncompliance with the claims statute, and (2) plaintiff's proofs in opposition were ineffectual to avoid summary judgment because they "d[id] not raise a reasonable inference that her claim was actually received by the clerk, secretary, auditor or board of the local public entity within the time prescribed for presentation thereof," and were "insufficient to establish waiver and/or equitable estoppel." A judgment duly followed, from which plaintiff took this timely appeal.


I. Question Presented

Summary judgment is appropriate when "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." (Code Civ. Proc., § 437c, subd. (c).) Because this test raises only questions of law, we review the trial court's ruling on summary judgment independently, without the deference that would be accorded to factual determinations on conflicting evidence. (Denevi v. LGCC (2004) 121 Cal.App.4th 1211, 1217; see Carlino v. Los Angeles County Flood Control Dist. (1992) 10 Cal.App.4th 1526, 1533, fn. 6 [whether actions of plaintiff's attorney amounted to filing of a claim was "an ultimate legal issue in this matter, and not a factual one"].)

Here County sought to establish that there was no material triable issue of fact on its affirmative defense of noncompliance with the government claims act; that the defense was conclusively established in its favor; and that therefore it was entitled to judgment as a matter of law. It contended that there was no triable issue of fact because the evidence concerning plaintiff's communication of the claim to County was ...

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