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Dean Whitlow et al v. Robert A. Martin


August 30, 2011


(Super. Ct. No. CVPO090000710)

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

Whitlow v. Martin



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this medical malpractice case, plaintiffs Dean Whitlow and his sister Candace Whitlow-Powell sent defendant Dr. Robert Martin an intent to sue notice pursuant to Code of Civil Procedure section 364, but failed to name Martin as a defendant in their subsequent complaint.*fn1 After the limitations period had expired, plaintiffs filed an amendment to their complaint naming Martin as a Doe defendant. Martin moved for summary judgment on the basis that the statute of limitations had run because plaintiffs failed to comply with the requirements of section 474 for naming unknown defendants. Martin argued plaintiffs were not actually ignorant of him as a defendant as required by section 474 because they had sent him notice of an intent to sue. We agree and affirm the judgment entered after the trial court granted Martin's motion for summary judgment.


About 1:00 a.m. on August 24, 2008, Sandy Whitlow*fn2 screamed that her head hurt. She asked her adult son Dean to take her to the hospital. Sandy was in a lot of pain and crying. She vomited in the car on the way to the hospital and twice more at the hospital.

Sandy was not seen by a doctor at the Rideout Memorial Hospital (Rideout) until the shift change at 6:00 a.m. Dean assumed the doctor would perform tests, such as an X-ray or CAT scan, and the examination(s) would take some time. He told his mother to call when she was finished and he went home. Shortly after he arrived home, Sandy called and told him to come and pick her up from the hospital. Sandy was discharged with the diagnosis of a tension headache and given a prescription for Ibuprofen.

Dr. Karen Parker was the emergency room physician at Rideout that night. Her shift ended at 6:00 a.m. and she had no contact with Sandy. She was replaced as the emergency room physician by Martin. Martin made all the physician entries on Sandy's medical records. Despite the shift change, the medical records from Rideout incorrectly listed "Parker, Karen A., M.D." as Sandy's attending physician. The records were also stamped showing Parker as the doctor. The work release form and discharge instructions, however, were on forms correctly listing "Robert A. Martin, M.D." as the doctor.

When they returned home from the hospital, both Sandy and Dean went to bed. Later that day, Sandy went to the Gold Country Casino with friends although her head still hurt. That evening, Sandy was taken by ambulance to a hospital in Oroville. That hospital transferred her to the UC Davis Medical Center where she had emergency surgery. After surgery, the doctor said there was no chance to save her. She had suffered a brain hemorrhage. Sandy died shortly after midnight on August 26, 2008.

Dean was angry about the care Sandy received at Rideout. He felt someone had been negligent or had done something wrong. He planned to file a lawsuit even before his mother died. Dean contacted attorney Timothy Evans on behalf of himself and his sister, Candace Whitlow-Powell.

On January 5, 2009, Evans sent a 90-day intent to sue letter to Martin pursuant to section 364 (364 letter).*fn3 The 364 letter was addressed to both Martin and the Fremont Rideout Health Group and referenced Sandy. The 364 letter stated that Evans would file a claim for professional negligence against Martin "for professional negligence occurring on or about August 24, 2008, at Rideout Hospital. This claim will be on behalf of her heirs, George Dean Whitlow and Candace Powell, who will apply to represent her estate. Ms. Whitlow was in emergency surgery shortly after leaving your care, and died a day later." The 364 letter went on to say that Evans "would love to comply with CCP Section 364(b), but your indifference to two requests for records make that difficult, if not impossible." Copies of the 364 letter were sent to Dean and Candace and they both received them.

Evans referred the case to the Wilcoxen law firm who filed a complaint for medical malpractice and wrongful death on behalf of plaintiffs Dean and Candace on August 18, 2009. The complaint named Rideout Memorial Hospital, Karen A. Parker, M.D., and Does 1 through 50 as defendants. The complaint alleged: "Commencing on or about August 24, 2008, defendant KAREN A. PARKER, M.D. and DOES 11 through 25 were the treating physicians of Decedent. In the course of treatment and therapy, defendants, and each of them, knew, or in the exercise of reasonable care, should have taken appropriate medical measures and exercised reasonable medical care to discover that Decedent was severely and seriously ill, and despite this, defendants, and each of them failed to take appropriate medical measures and exercise reasonable care to treat Decedent, and as a direct and proximate result thereof SANDRA WHITLOW died on August 26, 2008."

About six months later, plaintiffs filed an amendment to the complaint substituting Martin for Doe 1 pursuant to section 474.

Martin moved for summary judgment or summary adjudication. Martin asserted plaintiffs' complaint was barred by the one-year statute of limitations. The Doe amendment did not relate back to the filing of the original complaint because plaintiffs did not comply with section 474, which requires a plaintiff be ignorant of the name of a defendant. Martin argued the plaintiffs actually knew his identity because they had each received a copy of the 364 letter that Evans sent to Martin in January 2009.

Plaintiffs opposed the motion. They argued Martin's allegation that they knew his identity and the theory of liability against him was in conflict with the evidence, especially the medical records, and they did not know Martin was Sandy's attending physician.

Plaintiffs objected to the 364 letter from Evans on the basis that it was hearsay. They also objected to a narrative written by Vada Faul, who accompanied Sandy to the casino, as lacking foundation and being hearsay. In the narrative, Faul wrote that Sandy referred to the emergency room doctor as "he."

The trial court granted Martin's motion for summary judgment. It overruled plaintiffs' objections, finding both documents were not hearsay because they were offered to show state of mind. The trial court found that the 364 letter, copies of which it was undisputed that plaintiffs had received, established that plaintiffs knew Martin's name and the facts giving rise to a cause of action against him. Judgment was entered for Martin.


"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).) "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Id., subd. (p)(2).) "The statute of limitations operates in an action as an affirmative defense. [Citations.]" (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.) When the undisputed facts show the claim is untimely, "summary judgment is proper." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)

Section 340.5, the statute of limitations for medical malpractice actions, provides in part: "In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be 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." "[A]s applied to wrongful death actions arising from alleged medical malpractice, 'injury' as used in section 340.5 refers to the death, with its allegedly wrongful cause, which gives rise to the lawsuit." (Larcher v. Wanless (1976) 18 Cal.3d 646, 651.)

Accordingly, plaintiffs' wrongful death action arising from medical malpractice had a one-year statute of limitations commencing on August 26, 2008, the date of Sandy's death. At that time, Dean suspected his mother had received negligent treatment. The initial complaint was filed August 18, 2009, within this time period. The amendment adding Martin as a defendant, however, was filed on February 1, 2010, after the limitations period had expired. Thus, plaintiffs' action against Martin is untimely unless the amendment naming him as a defendant relates back to the original complaint.

"The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. [Citations.] A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citations.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed. [Citation.]" (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176, fn. omitted (Woo).)

Section 474 provides, "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding may be amended accordingly. . . ."

The first requirement for application of the section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint. (Woo, supra, 75 Cal.App.4th 169, 176.) Plaintiffs complied with this procedural requirement as the amendment identified Martin as a substitute for a previously named fictitious defendant.

"A further and non-procedural requirement for application of the section 474 relation-back doctrine is that [the plaintiffs] must have been genuinely ignorant of [Martin's] identity at the time [they] filed [their] original complaint. [Citations.] The omission of the defendant's identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. [Citation.]" (Woo, supra, 75 Cal.App.4th at p. 177.) To be ignorant of the defendant as required by section 474, a plaintiff's ignorance may be in one of three categories. The plaintiff must be ignorant of the defendant's identity, ignorant of the facts giving him a cause of action against the person, or "'unaware that the law gave him a cause of action against the fictitiously named defendant and discovered that right by reason of decisions rendered after the commencement of the action. [Citation.]'" (Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88.)

"[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed." (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 588, original italics.) "Moreover, there is no requirement under section 474 that a plaintiff exercise reasonable diligence in discovering either the true identity of fictitious defendants or the facts giving him a cause of action against such persons. [Citations.]" (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 376.)

Plaintiffs contend they had no actual knowledge of Martin's connection to this case until they were told the medical records, showing Parker as Sandy's attending physician in the emergency room, were in error. In their depositions, both Dean and Candace stated they did not talk to their mother about the emergency room doctor and she did not say whether such doctor was male or female. They further contend the 364 letter was not evidence that they knew Martin was the attending physician and that the letter itself states defendants' failure to comply with discovery impeded their gathering knowledge about the case.

Tellingly, plaintiffs refer to the 364 letter as the "hearsay 364 letter."*fn4 They do not indicate its purpose was to give Martin statutorily required notice of their intent to sue him for medical malpractice. (§ 364.) Nor do they quote from the first paragraph of the 364 letter which advised Martin that plaintiffs would file a claim against him "for professional negligence occurring on or about August 24, 2008, at Rideout Hospital." The letter indicated the claim was based on his care of Sandy, who "was in emergency surgery shortly after leaving your care, and died a day later."

Thus the 364 letter shows plaintiffs were not actually ignorant of Martin as required by section 474. In their depositions, both Dean and Candace admitted they received or saw the 364 letter. The letter demonstrates that plaintiffs knew the identity of Martin, that he provided care for their mother on August 24 at Rideout, and that they believed his negligence in such treatment led to her death. Thus, they were not ignorant of Martin's identity or of the facts giving rise to a cause of action against him. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) While the 364 letter does not detail Martin's alleged malpractice, this lack of specificity did not preclude naming Martin as a defendant in the original complaint. That complaint contains hardly more factual allegations about the alleged malpractice. It alleges simply that defendants failed to take appropriate medical measures and exercise reasonable care to discover Sandy was severely and seriously ill and failed to take appropriate medical measures and exercise reasonable care to treat her; as a result, she died.

Plaintiffs argue the 364 letter does not establish their knowledge that Martin should have been named as a defendant because it was contradicted by the medical records that indicate Parker was the attending physician. We disagree. While the medical records incorrectly named Parker as attending physician, nothing in them precludes Martin's role as a treating physician. Indeed, that Martin treated Sandy is supported by the records that show he was the discharging physician and gave instructions for further care. Further, Evans knew that Martin was a proper defendant because he sent Martin the 364 letter--the notice of intent to sue. The only reason to send notice is as a prerequisite to a lawsuit.*fn5 As plaintiffs' attorney and agent, Evans's knowledge is imputed to plaintiffs. (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 828.)

Plaintiffs contend this case is similar to McOwen v. Grossman (2007) 153 Cal.App.4th 937 (McOwen). In McOwen, plaintiff stepped on a nail and subsequently lost first his toe and then his leg to amputation. The original complaint named only the nurse and medical group that initially treated him. In discovery, he learned that a vascular surgeon he saw may have been negligent in ordering the wrong test, and amended his complaint to add the surgeon, substituting him for a Doe defendant. (McOwen, supra, 153 Cal.App.4th at pp. 940-941.) The trial court granted the surgeon's motion for summary judgment, finding the plaintiff knew he was treated by the surgeon and the amputation put him on notice for purposes of the statute of limitations. (McOwen, supra, at pp. 941-942.) The appellate court reversed, finding the trial court erred in analyzing the case under the statute of limitations rather than the requirements of section 474. (Id. at p. 943.) Summary judgment was improper because there was a triable issue of fact whether plaintiff knew facts showing the surgeon was liable until he learned of the theory of liability advanced by defendant's expert in his deposition. (Id. at p. 945.)

We find McOwen easily distinguishable. Here plaintiffs actually knew that Martin had treated their mother and the theory--negligence--of his liability. Both of these facts are shown by the 364 letter sent to Martin pursuant to section 474 before the complaint was filed.


The judgment is affirmed. Martin shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

We concur: HULL , Acting P. J. ROBIE , J.

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