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Breceda v. County of Los Angeles3/11/2003
ons in the Board of Control claim. The Court found that the statutory claim "involved factual and legal issues separate and independent of the original claim and thus did not constitute an amended claim." (Id. at p. 826.) The same may not be said here.
In reliance on Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, appellant also argues that respondent's failure to respond to his Code of Civil Procedure section 364 notice extended the period of limitations to two years. In that case, the plaintiff did not present the defendant with a Tort Claims Act claim, but did file a Code of Civil Procedure section 364 notice. The Supreme Court held that "a public entity must treat a notice, such as the notice at issue here, that alerts it to the existence of a claim for monetary damages and an impending lawsuit but fails to comply substantially with the claim presentation requirements of the act, as a defective 'claim' that triggers the operation of sections 910.8, 911 and 911.3." (Id. at pp. 701-702.)
This argument suffers from the problem just discussed. The Code of Civil Procedure section 364 notice did not present a new claim. That notice informed the Hospital that the action appellant intended to file "will be based on claims that you were negligent in diagnosing and treating him, including without limitation the diagnosis and treatment to his neck, throat and vocal cords. Damages include, without limitations, the following: (1) Physical injury to plaintiff's neck, throat and vocal cords, pain, suffering, emotional distress, past, present and future medical bills, expenses, loss of earnings and earning capacity." A duplicative Code of Civil Procedure section 364 notice cannot re-start the clock any more than a duplicative claim can.
Finally, appellant argues that the trial court erred in denying his motion to continue the hearing on the summary judgment motion. In the motion, appellant's counsel argued that he needed time to depose County doctors so that he could present information about appellant's medical treatment, declaring that the County's motion attached a surgical report which he had not had access to. (The County cited the surgery report in its summary judgment motion, but only in support its proposed fact that appellant's surgery took place at the Hospital on August 24, 1999.)
On this appeal, he argues that the depositions could have led to relevant evidence. He argues that if the doctors denied that appellant suffered injury to his vocal cords by reason of negligence in the diagnosis and treatment of blackout spells, but admitted that subsequent negligence by County health care providers caused injury to his vocal cords, summary judgment would have been denied.
We can see no error in the trial court ruling, because we do not believe that any additional evidence would have been relevant. This is, again, because the November claim covered appellant's entire course of treatment at the Hospital, resulting in injury to his vocal cords.
Disposition
The judgment is affirmed.
We concur:
GRIGNON, Acting P.J.
MOSK, J.
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