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Pedigo v. Hershey12/15/2004
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Samuel Pedigo sued Douglas Hershey, M.D., and Prenatal Diagnosis of Northern California Medical Group (collectively Hershey) for medical malpractice. The subsequent procedural machinations (based on errors in the original complaint) have approached those described in the Charles Dickens novel Bleak House. Ultimately, on a motion for reconsideration, the trial court reinstated its prior order sustaining Hershey's demurrer to Pedigo's medical negligence cause of action without leave to amend. Dismissal followed.
Pedigo argues the trial court was without jurisdiction to consider the motion for reconsideration under Code of Civil Procedure section 1008 because Hershey provided no new or different law in support of that motion. Further, Pedigo argues the court erred in concluding the second amended complaint and its amendment do not relate back to the filing date of the initial complaint.
We conclude the original complaint was timely filed. We further conclude the second amended complaint, as amended, relates back to the original filing date because Pedigo provided Hershey with actual notice of the source of his potential liability before the original complaint was filed and because the strong policy of this state favors the resolution of cases on their merits. We shall reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Samuel Pedigo is the son of Patricia Madrid. On March 30 or 31, 1993 (before Pedigo was born), Hershey treated Madrid and Pedigo.
Pursuant to section 364, on May 17, 2001, Madrid served a notice of her intention to sue Hershey. The notice stated Hershey was "negligent through the course, procedure and treatment of SAMUEL PEDIGO during a medical procedure and treatment conducted on SAMUEL PEDIGO on or about March 30, 1993[,] in that they failed to meet the appropriate standard of medical care during the procedure and treatment conducted on SAMUEL PEDIGO including, but not limited to the premature rupture of membranes and negligent care expectant management of SAMUEL PEDIGO causing premature delivery at 26 weeks and severe life threatening injuries and disability of child for life." The notice further described Pedigo's injuries as "the early rupture of membranes, which caused premature birth at 26 weeks" and went on to describe the host of medical problems Pedigo suffered as a result of this alleged negligence.
In propria persona, Madrid filed a Judicial Council form complaint against Hershey on Pedigo's 8th birthday, June 28, 2001. On the first page of the complaint, she typed her name in the box reserved for "ATTORNEY OR PARTY WITHOUT ATTORNEY," and in the caption she identified the plaintiff as "Samuel Pedigo, a minor by and through his guardian ad litem PATRICIA MADRID." The general negligence cause of action attachment to the complaint alleged the plaintiff was "SAMUEL PEDIGO, A MINOR" and alleged that Hershey negligently caused damages to the plaintiff on March 30, 1993. Madrid further alleged "that the Defendants, and each of them, were health care providers owing a duty of reasonable care to Plaintiffs and others similarly situated and that Plaintiffs hired said Defendants and said Defendants agreed to provide a certain service, care, treatment and other health care services to Plaintiffs regarding the cortizone shot treatment for bursitis in Plaintiff's shoulders." (Italics added.) In addit
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