ERNEST J. BROOKS, Plaintiff and Appellant,
MERCY HOSPITAL, Defendant and Respondent
from a judgment of the Superior Court of Kern County, No.
CV-283100, Sidney P. Chapin, Judge.
[Copyrighted Material Omitted]
J. Brooks, in pro. per., for Plaintiff and Appellant.
Watson & Croutch, Craig R. Donahue and Daniel K. Dik for
Defendant and Respondent.
by Kane, Acting P. J., with Detjen and Peña, JJ.,
KANE, Acting P. J.
Plaintiff Ernest J. Brooks appeals from a judgment of
dismissal entered in favor of defendant Mercy Hospital after
the trial court sustained defendant's demurrer to
plaintiff's complaint on statute of limitations grounds.
Plaintiff argues the trial [204 Cal.Rptr.3d 290] court erred
because it failed to apply the tolling provision set forth at
Code of Civil Procedure section 352.1, which grants a
two-year tolling of the statute of limitations to persons who
are imprisoned " for a term less than for life."
(§ 352.1, subd. (a).) Plaintiff contends that, under a
long-standing judicial construction of this provision (i.e.,
Grasso v. McDonough Power Equipment, Inc. (1968) 264
Cal.App.2d 597 [70 Cal.Rptr. 458] ( Grasso )
[construing predecessor tolling statute, § 352]), the
phrase " for a term less than for life" includes a
life sentence where there is a possibility of parole. In
other words, the tolling provision has been interpreted to
apply to all prisoners except those subject to a life
sentence without the possibility of parole.
Plaintiff is correct that Grasso is dispositive
here. As more fully explained below, we conclude that section
352.1 tolling should have been applied to plaintiff, which
means the trial court erred in concluding that the statute of
limitations expired. Accordingly, we reverse the judgment
appealed from with instructions that the trial court enter a
new order overruling defendant's demurrer to
AND PROCEDURAL HISTORY
parties do not dispute that plaintiff was and is a prison
inmate at Corcoran State Prison, serving an indeterminate
life sentence that includes a possibility of parole. In April
2013, while serving said life sentence, plaintiff was taken
for medical care and treatment to Mercy Hospital in
Bakersfield. The parties do not dispute that plaintiff's
action arises out of that medical care and treatment. The
gist of plaintiff's complaint, as summarized in the
parties' briefing, is that defendant negligently
overmedicated him and allowed an " IV Port" to
become infected, among other things. On September 5, 2013,
plaintiff served on defendant a notice of intent to sue.
complaint was filed on September 24, 2014. Defendant filed a
demurrer on the ground that the action was time-barred by the
statute of limitations applicable to causes of action for