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Morgan v. San Joaquin Community Hospital12/10/2004
It is well settled that a notice of appeal divests the trial court of jurisdiction to alter a judgment. A motion for reconsideration that is intended to affect the judgment, but which also purports to be a notice of appeal from the judgment, would therefore seem to be self-defeating as a motion for reconsideration. But can such a document nevertheless be valid as a notice of appeal? In the published part of this opinion, we hold that it can and that here it was. Therefore, plaintiff Jonathan Morgan filed a timely notice of appeal.
That said, however, in the unpublished part of the opinion, we conclude that the trial court did not err in sustaining defendant San Joaquin Community Hospital's demurrer without leave to amend as the action was barred by the statute of limitations. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
Plaintiff, a former prison inmate, is HIV-positive. He was treated with antiviral medications on the recommendation of a physician at defendant hospital. Acting in pro. per., he filed a complaint in Kern County Superior Court on October 11, 2002, alleging medical malpractice on the basis of side effects from the drugs. The complaint alleged that the harm was caused by negligence that took place on November 22, 1998, almost four years before the action was filed.
The limitations period for medical malpractice is one year from reasonable discovery of the injury or three years from the injury, whichever comes first, and in no event more than three years from the injury, unless tolled. (Code Civ. Proc., § 340.5.) Plaintiff amended the complaint in an attempt to allege facts sufficient to toll the limitations period. The trial court found his allegations inadequate. It sustained defendant's demurrer to plaintiff's second amended complaint on statute-of-limitations grounds, without leave to amend, and entered judgment for defendant on May 28, 2003.
The same day, plaintiff filed a document titled "Notice and Motion for Reconsideration (C.C.P. § 1008) and/or Notice of Appeal (C.C.P. § 904.1; CRC 2(c)." After a hearing, the court denied the motion for reconsideration on June 11, 2003. Defendant did not serve a notice of judgment on plaintiff until January 23, 2004. Plaintiff filed a second notice of appeal on March 3, 2004.
DISCUSSION
I. Timeliness of notice of appeal
The parties' arguments on the issue of timeliness of the appeal focus on the second notice of appeal. Defendant points out that this notice was filed over nine months after entry of judgment, exceeding the outer limit of 180 days that applies even though plaintiff filed a motion for reconsideration. (Cal. Rules of Court, rules 2(a), 3(d).) Plaintiff does not dispute this, but contends that the late filing should be excused because defendant caused it by delaying in providing notice of entry of judgment.
If these were the only issues, the appeal clearly would be untimely. California Rules of Court, rule 2(a), governing the normal time for filing a notice of appeal, and rule 3(d), governing the time for filing a notice of appeal when a motion for reconsideration has been filed pursuant to section 1008, both provide an outer limit of 180 days from entry of judgment. There is no authority supporting plaintiff's contention that delay in service of a notice of entry of judgment can alter this outer limit.
But the earlier document, purporting to be both a motion for reconsideration and a notice of appeal, supports a different conclusion. The document's title states that it is both a motion for reconsideration and a notice of appeal. It contains a notice of motion stating that on the designated date plaintiff
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