Filed 3/15/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
UBALDO LOPEZ et al.,
Plaintiffs and Appellants, A161951
v.
AMERICAN MEDICAL RESPONSE (Alameda County
WEST, Super. Ct. No. RG18928042)
Defendant and Respondent.
Plaintiffs Ubaldo Lopez and Leobardo Lopez allege they were injured
on August 28, 2017, while Leobardo was being transported in an ambulance
operated by employees of defendant American Medical Response West
(AMR), and the ambulance collided with another vehicle.1 Plaintiffs filed
their complaint on November 8, 2018, alleging motor vehicle negligence and
medical malpractice. They appeal from summary judgment in favor of AMR
based upon the one-year statute of limitations applicable to actions for
professional negligence by health care providers under the Medical Injury
Compensation Reform Act (MICRA). (Code Civ. Proc., § 340.5.)2 The appeal
turns on two questions: (1) whether MICRA applies when ambulance
passengers are injured during a collision; and (2) if so, whether the statute of
For clarity, when referencing plaintiffs individually, we use their first
1
names only and intend no disrespect.
All statutory references are to the Code of Civil Procedure unless
2
otherwise stated.
1
limitations was extended under section 364, subdivision (d) because plaintiffs
sent AMR a notice of intent to sue on August 23, 2018. We agree that the
trial court correctly determined that the MICRA statute of limitations under
section 340.5 applies and that plaintiffs’ August 23, 2018 letter did not
extend the statute of limitations because their prior March 2018 letter to
AMR’s third party claims administrator constituted a section 364,
subdivision (a) notice of intent to sue.3
FACTUAL AND PROCEDERUAL BACKGROUND
I. Accident and Notice Letters
On August 28, 2017, while Leobardo was being transported in an AMR
ambulance, accompanied by Ubaldo, the ambulance was involved in a
collision. On March 23, 2018, plaintiffs’ counsel sent a letter to Carlton
Rollins at Sedgwick Claims Management Services, Inc. (Sedgwick Claims),
which was the third party claims administrator for AMR. The March letter
lists the plaintiffs’ names, AMR as the insured, the date of the accident, and
the claim number. It states: “Our clients have completed treatment for
injuries sustained as a result of the above-referenced accident. We would like
to explore the possibility of settlement. It would be in everyone’s interest to
avoid the delay and expense of litigation. The following sets forth facts
regarding the accident and treatment, our evaluation of our clients’ claims,
and our demand for settlement.” The March letter further states that the
accident occurred while plaintiffs were passengers in defendant’s
3 Section 364, subdivision (a) precludes a plaintiff from filing a
professional negligence action against a health care provider unless the
plaintiff has given the health care provider 90 days’ notice “of the intention to
commence the action.” Section 364, subdivision (d) tolls the statute of
limitations for 90 days if the notice of intent to sue is served on the health
care provider within the last 90 days of the applicable statute of limitations.
2
ambulance—Leobardo on the gurney and Ubaldo secured with a lap belt
while accompanying his father. It references personal injury caused by AMR
and states AMR is responsible for plaintiffs’ damages. The letter then details
the injuries, treatment, and other damages sustained by each plaintiff and
references enclosed supporting documentation. It concludes with a
settlement demand of $150,000 on behalf of Ubaldo and $11,467 on behalf of
Leobardo and requests a response within 15 days.
On August 23, 2018, plaintiffs’ counsel sent a letter directly to AMR
with a copy to Rollins at Sedgwick Claims, stating that he was providing
notice under section 364 of plaintiffs’ intent to file a lawsuit against
defendant for injuries sustained on August 28, 2017. The August letter,
again, stated that plaintiffs were being transported in the ambulance when it
was involved in a collision. It further stated that defendant and its
employees failed to safely operate the ambulance and caused the collision
resulting in injuries to plaintiffs.
II. Complaint
On November 8, 2018, plaintiffs filed their complaint, alleging motor
vehicle negligence and medical negligence. Following a demurrer, plaintiffs
filed a first amended complaint alleging the same causes of action.
III. AMR’s Motion for Summary Judgment
AMR moved for summary judgment based upon section 340.5’s one-
year statute of limitations. The trial court granted the motion, finding that
the declarations from the emergency medical technicians (EMT) established
that they were certified EMT’s at the time of the accident and that the
accident occurred while plaintiffs were being transported to a hospital in
defendant’s ambulance. Relying on Canister v. Emergency Ambulance
Service, Inc. (2008) 160 Cal.App.4th 388, 404–405 (Canister), the trial court
3
found that plaintiffs’ claims were subject to MICRA. It further found that
plaintiffs’ March 23, 2018, letter to AMR’s third party claims administrator,
Sedgwick Claims, was a notice of intent to sue required under section 364
because it provided the information referenced in subdivision (b). Thus,
based upon Kumari v. The Hospital Committee for the Livermore–Pleasanton
Areas (2017) 13 Cal.App.5th 306 (Kumari), plaintiffs’ subsequent August 23,
2018 letter did not extend the August 28, 2018, deadline to file suit under
section 364, subdivision (d).
DISCUSSION
Plaintiffs argue for reversal because: (1) AMR failed to establish that
Bianca Andrade (Andrade) and Esteban Zuniga (Zuniga) were certified
EMT’s at the time of the incident and therefore the trial court erred in
finding MICRA applicable; (2) MICRA does not apply to medical providers
involved in vehicular collisions while operating ambulances; and (3) the one-
year statute of limitations was tolled under section 364, subdivision (d)
because plaintiffs served AMR with a notice of intent to sue letter on
August 23, 2018, which was within 90 days of the applicable statute of
limitations.
I. Summary Judgment Review
A “party moving for summary judgment bears the burden of persuasion
that there is no triable issue of material fact and that he is entitled to
judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850.) A defendant satisfies this burden by showing “ ‘one or
more elements of’ the ‘cause of action’ . . . ‘cannot be established,’ or that
‘there is a complete defense’ ” to that cause of action. (Ibid.) “ ‘Once the
defendant . . . has met that burden, the burden shifts to the plaintiff . . . to
show that a triable issue of one or more material facts exists as to that cause
4
of action or a defense thereto.’ ” (Id. at p. 849.) We review the grant of
summary judgment de novo, and in doing so, we view the evidence in the
light most favorable to the losing party. (Wiener v. Southcoast Childcare
Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) Accordingly, we will “liberally
construe plaintiffs’ evidentiary submissions and strictly scrutinize
defendants’ own evidence, in order to resolve any evidentiary doubts or
ambiguities in plaintiffs’ favor.” (Ibid.)
II. Legal Principles
“A special statute of limitations applies . . . to actions ‘for injury or
death against a health care provider based upon such person’s alleged
professional negligence.’ (Code Civ. Proc., § 340.5 . . . .) Unlike most other
personal injury actions, professional negligence actions against health care
providers must be brought within ‘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.’ (Ibid.)” (Flores v.
Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 79 (Flores).) The
current version of section 340.5 was amended as part of MICRA. (Id. at p.
81.)
“Section 364 precludes a plaintiff from filing a professional negligence
action against a health care provider unless the plaintiff has given the health
care provider 90 days’ notice ‘of the intention to commence the action.’ (§ 364,
subd. (a); [citation].) ‘No particular form of notice is required, but it shall
notify the defendant of the legal basis of the claim and the type of loss
sustained, including with specificity the nature of the injuries suffered.’
(§ 364, subd. (b).) Section 364, subdivision (d) tolls the statute of limitations
for 90 days if the notice of intent to sue is served on the health care provider
within the last 90 days of the applicable statute of limitations. [Citation.]
5
The purpose of section 364 and the 90-day waiting period ‘is to decrease the
number of medical malpractice actions filed by establishing a procedure that
encourages the parties to negotiate “outside the structure and atmosphere of
the formal litigation process” ’ [citations].” (Kumari, supra, 13 Cal.App.5th at
p. 312.)
III. MICRA’s statute of limitations applies to plaintiffs’ claims.
A. The trial court did not err in overruling plaintiffs’
objections to the declarations of Andrade and Zuniga
attesting to their EMT certifications.
Although the granting of summary judgment is subject to independent
review, courts generally review evidentiary rulings on summary judgment for
abuse of discretion. (Mackey v. Trustees of California State University (2019)
31 Cal.App.5th 640, 657.) However, there is some question as to whether a
de novo standard should apply to evidentiary rulings made solely on
summary judgment papers. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512,
535 [recognizing question but declining to address it].) But under either
standard, “evidentiary questions at summary judgment ‘ “are subject to the
overarching principle that the proponent’s submissions are scrutinized
strictly, while the opponent’s are viewed liberally.” ’ ” (Mackey, at p. 657.) As
discussed post, we find that even under a de novo standard, the trial court
correctly overruled plaintiffs’ evidentiary objections to the declarations of
Andrade and Zuniga.
Plaintiffs argue the trial court erred in finding that AMR established
that Andrade and Zuniga were certified EMT’s at the time of the accident.
AMR submitted declarations from Andrade and Zuniga in which they each
attested that they were certified EMT’s employed by AMR and that they were
transporting patient Leobardo with Ubaldo in an ambulance when they were
involved in a motor vehicle collision. The declarations provided each EMT’s
6
certification number and stated that they had trained as EMT’s and were
active and certified EMT’s at the time of the incident.
Plaintiffs offered no evidence to dispute these statements. Instead,
they claimed the declarations were insufficient to prove the stated facts.
Plaintiffs filed evidentiary objections to the portions of the declarations
verifying each EMT’s training and certification status, and plaintiffs argued
that based upon the secondary evidence rule (Evid. Code, §§ 1521, 1523),
AMR was required to provide “the actual EMT certificate[s].”4 They make
the same argument on appeal. Plaintiffs’ evidentiary objections cited
Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d
388, 416 (Continental Airlines), for the position that a witness may not testify
to the contents of a document not admitted into evidence, and Hoover
Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d
1130, 1136–1137 (Hoover), and McIvor v. Savage (1963) 220 Cal.App.2d 128,
134 (McIvor), for the position that declarations containing conclusory
statements should not be admissible.
AMR argued that the declarations established each declarant’s EMT
certification and training based upon direct testimony. AMR also stated that
actual “certificates” do not exist and that EMT certification verification is
available through the Emergency Medical Services Authority EMS Registry
4 Plaintiffs also objected based on hearsay (Evid. Code, § 1200); lack of
foundation (Evid. Code, §§ 400–406, 700); and improper opinion, conclusion,
and speculation (Evid. Code, §§ 800, 802, 803). In their opening brief,
plaintiffs state that they objected on these other grounds, but they do not
provide any argument or authority supporting a claim that the declarations
were inadmissible based on these other grounds. Thus, we do not address
them. (City of Palo Alto v. Public Employment Relations Bd. (2016) 5
Cal.App.5th 1271, 1302 [“When points are perfunctorily raised without
adequate analysis and authority, we may treat them as abandoned or
forfeited”].)
7
Web site. The trial court overruled plaintiffs’ evidentiary objections, finding
that plaintiffs failed to provide authority supporting their position.
On appeal, plaintiffs argue the trial court erred because plaintiffs’
objections cited to authority. However, the case law plaintiffs cited in their
written evidentiary objections does not support their position. Continental
Airlines, supra, discusses the extent to which an expert witness may testify to
the hearsay contents of a report on which he or she relied. (216 Cal.App.3d
at pp. 414–416.) Here, Andrade’s and Zuniga’s declarations were based on
their personal knowledge of their own backgrounds, training, and
certifications. They offered no expert opinions. Continental Airlines, to the
extent it even states current law regarding admissibility of expert testimony
(see People v. Sanchez (2016) 63 Cal.4th 665), is inapplicable here. Hoover,
supra, found that declarations containing “bald conclusions of law,” personal
opinions, and statements “whose credibility has been destroyed by prior
admissions or other conclusive evidence” are not sufficient to create triable
issues of fact. (167 Cal.App.3d at pp. 1136–1137.) Similarly, McIvor, supra,
provides that declarations stating conclusions of law do not raise triable
issues of fact. (220 Cal.App.2d at p. 134.) None of these cases supports
plaintiffs’ contention that an actual EMT certificate must be admitted into
evidence to establish the fact that an individual is a certified EMT.
The declarations at issue here did not state opinions or conclusions of
law. They attested to facts within the declarants’ personal knowledge and
are sufficient proof of the stated facts. (Evid. Code, § 411 [“Except where
additional evidence is required by statute, the direct evidence of one witness
who is entitled to full credit is sufficient for proof of any fact”].) That the
moving party’s evidence is to be strictly construed in determining whether it
disproves an essential element of a plaintiff’s claim does not mean that the
8
moving party must provide what would amount to cumulative evidence to
prove a particular fact. The trial court correctly found that plaintiffs
provided no support for their contention that the Andrade and Zuniga
declarations are insufficient to prove the facts stated therein.
B. Transporting a patient by ambulance falls within
“professional services” under section 340.5.
Plaintiffs argue the trial court erroneously followed Canister, which
they assert has been “essentially overturned . . . .” As the trial court found,
Canister is directly on point. In Canister, supra, a police officer who was
accompanying an arrestee in the rear of an ambulance was injured when the
ambulance hit a curb. A licensed EMT was driving the ambulance, and a
second EMT was attending to the arrestee. The Court of Appeal affirmed the
trial court’s determination that the officer’s negligence action was subject to
MICRA. (160 Cal.App.4th at pp. 392–394.) Canister first concluded that
EMT’s are health care providers under MICRA and, further, held that “as a
matter of law, . . . the act of operating an ambulance to transport a patient to
or from a medical facility is encompassed within the term ‘professional
negligence.’ ” (Id. at p. 404.) Canister also held that under section 340.5’s
definition of “ ‘professional negligence,’ ” “[t]he relevant test is not the degree
of skill required, but whether the negligence occurred in the rendering of
services for which a provider is licensed.” (Canister, at p. 404.) Canister
further found that “[a]n integral part of the duties of an EMT includes
transporting patients and driving or operating an ambulance.” (Id. at p. 407.)
Here, plaintiffs were passengers in the ambulance—Leobardo as the patient
and Ubaldo as the patient’s companion, similar to the police officer in
Canister—while the ambulance was transporting a patient. This case falls
squarely within the holding of Canister.
9
We are not persuaded by plaintiffs’ argument that Canister has
essentially been overruled. Plaintiffs rely on the Supreme Court’s decision in
Flores, supra, 63 Cal.4th 75, in which the court addressed whether a claim by
a hospital patient, who was injured when the rail on her hospital bed
collapsed, was subject to MICRA’s statute of limitations or the two-year
statute applicable to claims of ordinary personal injury. (Id. at pp. 79, 84.)
The Supreme Court found that the negligent act or omission occurred “ ‘in the
rendering of professional services’ ” for purposes of section 340.5 and
constituted professional negligence. (Flores, at pp. 79, 84.) The court agreed
that MICRA is not limited “only to those specific tasks that require advanced
medical skills and training” (id. at p. 85), but explained that the test as to
whether an act or omission occurs “ ‘in the rendering of professional
services’ ” is not “merely [whether] it violates a state licensing
requirement . . . .” (Id. at p. 86.) Flores further explained that “the special
statute of limitations for professional negligence actions against health care
providers applies only to actions alleging injury suffered as a result of
negligence in rendering the professional services that hospitals and others
provide by virtue of being health care professionals: that is, the provision of
medical care to patients.” (Id. at p. 88.) Therefore, “if the act or omission
that led to the plaintiff’s injuries was negligence in the maintenance of
equipment that, under the prevailing standard of care, was reasonably
required to treat or accommodate a physical or mental condition of the
patient, the plaintiff’s claim is one of professional negligence under section
340.5.” (Ibid.) The court concluded that Flores’s injuries resulted from the
hospital’s alleged negligence in the “use or maintenance of equipment
integrally related to her medical diagnosis and treatment” and which,
therefore, was professional negligence for the purposes of section 340.5.
10
(Flores, at p. 89.) Notably, Flores does not mention—much less overrule—
Canister.
Plaintiffs rely on two post-Flores Court of Appeal decisions which they
contend criticize Canister. In Johnson v. Open Door Community Health
Centers (2017) 15 Cal.App.5th 153 (Johnson), our colleagues in Division Four
of the First Appellate District held that MICRA’s one-year statute of
limitations did not apply to a personal injury claim alleging that the plaintiff,
a patient at a health care clinic, was injured when she tripped on a scale on
her way out of the treatment room. (Id. at pp. 156, 160.) In reaching its
conclusion, the court reasoned that Johnson was injured not during the
provision of medical care but after her care was completed. (Id. at p. 159.)
She alleged injury due to the clinic’s act of putting the scale in a place where
it posed a tripping hazard, which “implicat[ed] [the clinic’s] duty to all users
of its facility, including patients, employees, and other invitees, to maintain
safe premises.” (Id. at p. 160.) Johnson discussed Canister and concluded:
“While the court’s rationale, in Canister, does not comport with Flores’s
analysis, the outcome is arguably correct, in that (1) the negligent
performance of tasks requiring no medical skill or training may nonetheless
implicate professional services and trigger the application of MICRA (Flores,
supra, 63 Cal.4th at pp. 85–86); and (2) the EMTs who allegedly operated an
ambulance without due care were rendering professional services at the time
and their failure to do so competently caused the officer’s injuries.
[Citation.]” (Johnson, at p. 162.)
Although Johnson correctly stated that Canister—which was decided
before Flores—did not apply the specific Flores analysis, we do not find that
Johnson “explicitly criticiz[ed]” Canister’s holding. Rather, Johnson
explained that Canister’s “outcome is arguably correct” based on the
11
guidelines of Flores. (Johnson, supra, 15 Cal.App.5th at p. 162.) We agree
with Johnson’s analysis of Canister and find that because plaintiffs were
injured while AMR was rendering professional services to plaintiffs (e.g.,
transporting Leobardo in an ambulance), their claims are subject to section
340.5.
Plaintiffs also cite to Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, a
Second District Court of Appeal decision, which plaintiffs claim “essentially
overturned its prior decision in Canister.”5 Although Aldana questioned
whether Canister’s holding was correct in light of Flores, it found Canister
factually distinguishable. (Aldana, at pp. 7–8.) Aldana held that a
paramedic supervisor who negligently collided with another vehicle while
traveling to observe and evaluate other EMT’s was not engaged in providing
“ ‘professional services’ ” at the time of the injury. (Id. at p. 8.) The
supervisor was not providing care or transporting a patient when the collision
occurred. He was driving his employer’s truck, not an ambulance. Applying
the Flores analysis to those circumstances, Aldana held: “A paramedic’s
exercise of due care while driving is not ‘necessary or otherwise integrally
related to the medical treatment and diagnosis of the patient’ [citation], at
least when the patient is not in the vehicle. Accordingly, MICRA does not
apply . . . .” (Ibid., italics added.) Here, both plaintiffs were passengers in
the ambulance, which was being operated to transport Leobardo. Thus,
Aldana’s analysis does not apply to plaintiffs’ claim.
We conclude that under the principles discussed in Flores, MICRA’s
statute of limitations applies to plaintiffs’ claims because their alleged
injuries occurred while the EMT’s were rendering professional services by
transporting plaintiffs in an ambulance. Plaintiffs’ injuries resulted from
5 Canister was also decided by the Second District Court of Appeal.
12
AMR’s alleged negligence in the “use or maintenance of equipment [the
ambulance] integrally related to [plaintiff Leobardo’s] medical diagnosis and
treatment” and therefore was professional negligence for the purposes of
section 340.5. (Flores, supra, 63 Cal.4th at p.89.)6
IV. The August 23, 2018 letter did not toll the one-year statute of
limitations.
Plaintiffs claim that the statute of limitations was tolled under section
364, subdivision (d) because their August 23, 2018 notice of intent to sue
letter was sent within the last 90 days of the applicable statute of limitations.
The trial court rejected plaintiffs’ contention because they sent an earlier
demand letter which the court found constituted a notice of intent to sue
under the criteria in Kumari. Thus, the second letter did not impact the
statute of limitations. (Kumari, supra, 13 Cal.App.5th at p. 315.)
Kumari held that a plaintiff’s letter to a health care provider—which
described the injury and the events giving rise to her “medical negligence”
claim, the treatment she received for the injury, and the damages alleged;
requested $240,000 within 20 days; and concluded, “I personally do not wish
to go through the legal route, but if this doesn’t work I will move to the court
after 20 days”—constituted a notice of intent to sue under section 364.
(Kumari, supra, 13 Cal.App.5th at pp. 309, 313.) Kumari further held that
plaintiff’s counsel’s second notice letter—which was served within 90 days of
6The fact that Ubaldo was not a patient does not change our analysis
because the injury to both plaintiffs occurred while defendant was using the
ambulance to transport Leobardo. Section 340.5 applies to negligent acts or
omissions “in the rendering of professional services” but does not require the
services to have been performed for the plaintiff. (§ 340.5; see Canister,
supra, 160 Cal.App.4th at p. 407 [applying MICRA to claim by third party
injured while defendant rendered professional services to another]; Aldana,
supra, 2 Cal.App.5th at p. 8 [“MICRA is not limited to suits by patients”].)
13
the running of the statute of limitations and stated that it was “pursuant to
. . . section 364,” that the defendant’s nurse’s “negligent actions” caused
Kumari’s injuries, and that Kumari’s husband had a loss of consortium
claim—did not extend the statute of limitations. (Kumari, at p. 315, quoting
Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 390 [“[T]he tolling provision of
section 364, subdivision (d) applies only to plaintiffs who have served their
original notice of intent to sue within 90 days of the expiration of the
applicable limitations period. The service of an early notice, as here, fully
achieves the legislative objective of encouraging negotiated resolutions of
disputes without the necessity of suit. A second notice is not required and
would generally serve no purpose”].)
Plaintiffs argue Kumari is distinguishable because their March letter
did not explain the legal basis for their claim, did not set a firm deadline for a
settlement response, did not request preservation of evidence due to
anticipated litigation, and was not sent directly to defendant, but only to
Sedgwick Claims. We disagree that plaintiffs’ March letter is meaningfully
different from the letter at issue in Kumari.
Plaintiffs’ March 23, 2018, letter stated plaintiffs were treated for
“injuries sustained as a result of the above-referenced accident,” which
occurred when plaintiffs were passengers in “the ambulance when your
driver struck another vehicle.” Plaintiffs wanted to “explore the possibility of
settlement . . . to avoid the delay and expense of litigation.” The letter
further stated plaintiffs’ attorney, who “specializes in personal injury,”
investigated the accident and the investigation established that AMR
(referred to as Sedgwick Claims’s “insured”) caused the accident and was
responsible for damages. It provided details of each plaintiff’s injuries,
treatment, impairments, and other damages and concluded by proposing
14
settlement of $150,000 for Ubaldo’s claim and $11,467 for Leobardo’s claim
and requesting a response within 15 days. We find the March letter
sufficiently notified “the defendant of the legal basis of the claim and the type
of loss sustained, including with specificity the nature of the injuries
suffered.” (§ 364, subd. (b).) The fact that the March letter does not
specifically refer to “negligence” or “medical malpractice” is not controlling.
The letter explains that plaintiffs were riding in the ambulance with
Leobardo “on the gurney” when the ambulance collided with another vehicle
and that the defendant “cause[d] . . . the accident” and “is responsible for all
damages caused by this accident.” The March letter adequately explains the
basis for liability.
Nor is there merit to plaintiffs’ claim that their March letter does not
constitute a section 364 notice because it did not clearly state that a lawsuit
would follow if settlement were not reached and that it merely “mildly
expressed the hope of settlement” rather than a settlement demand with a
hard deadline. Similarly to the letter at issue in Kumari, plaintiffs’ March
letter expressed a clear desire to “avoid” litigation by settling. The very first
paragraph of plaintiffs’ March letter refers to a “settlement demand,” and the
letter concludes with a specific dollar amount and a request for a response
within 15 days. This is not meaningfully different from the letter in Kumari.
It is not a meaningful distinction that plaintiffs’ March letter did not include
a request to preserve documents. There is no requirement that such a
request is necessary in a section 364 letter. (See § 364, subd. (b).)
Our colleagues in Division One of the First Appellate District recently
published McGovern v. BHC Fremont Hospital, Inc. (2022) 87 Cal.App.5th
181, which also involved the question of whether a plaintiff’s first letter to the
defendant met the requirements of section 364, subdivisions (a) and (b).
15
(McGovern, at pp. 193–194.) McGovern concluded that the plaintiff’s first
letter did not comply with section 364 and could not be deemed a notice of
intent to sue. (McGovern, at p. 195.) The court summarized the plaintiff’s
first letter as follows: “McGovern’s March 9 letter is largely devoted to
preservation of evidence; includes only a generalized reference to injuries;
and contains no description of [plaintiff’s] treatment, the damages sustained,
nor any attempt to quantify those damages. It makes no settlement demand
and does not state that suit will be filed in a specified period of time if the
demand is not met. Instead, the letter states ‘this office will be gathering
more necessary information.’ ” (Ibid.) In contrast, the letter here begins by
stating, “This accident has been investigated by our office,” and then details
the accident, each plaintiff’s injuries and treatment, and other itemized
damages, including wage loss and pain and suffering, before concluding with
a settlement demand and requesting a response within 15 days. The letter at
issue here is more than an initial investigatory letter as was the one at issue
in McGovern. It provided defendant with all the necessary information
required by section 364. (Kumari, supra, 13 Cal.App.5th at p. 314.)
Finally, plaintiffs claim the March letter cannot be a valid section 364
notice of intent to sue because it was not sent directly to defendant AMR but,
rather, to Sedgwick Claims, whom plaintiffs describe as “[AMR]’s insurance
carrier.” AMR’s motion was supported by the declaration of Carlton Rollins,
who declared he was a claims examiner at Sedgwick Claims, which was
AMR’s “third party claims administrator.” Rollins declared that he was
responsible for adjusting plaintiffs’ claim and that he received the March
letter “as the agent” of AMR.
In response to AMR’s separate statement of undisputed facts, plaintiffs
did not dispute that Sedgwick Claims was the third party administrator for
16
AMR for adjusting liability claims or that Rollins handled plaintiffs’ claims.
They claimed to dispute AMR’s statement, supported by Rollins’s declaration,
that “Mr. Rollins received the First Letter, dated on or about March 23, 2018,
as AMR’s agent; he considered the First Letter claim-related correspondence
since it contained the claims number(s).” However, the only evidence
plaintiffs offered to support a factual dispute was the letter itself and their
additional material fact, which simply stated that the March letter “was not
sent to Defendant AMR, but rather to its insurance carrier Sedgwick Claims.”
Thus, the only evidence before the trial court on the issue of whether Rollins
acted as AMR’s agent with respect to plaintiffs’ claim was Rollins’s
declaration explaining his role as AMR’s third party claims administrator.
Plaintiffs admitted Sedgwick Claims was AMR’s third party claims
administrator, and they failed to present any evidence to rebut Rollins’s
statement that he received the March 2018 letter as AMR’s agent. Thus,
there was no triable issue of fact as to whether Rollins (and Sedgwick Claims)
acted as defendant’s agent at the time Rollins received the March 2018 letter.
“[C]ourts have recognized that the purpose of the Act [MICRA]—
effectuating prelitigation settlements—can only be achieved through actual
notice. . . . [T]he language of the Act does not require actual notice, [and] ‘the
test is whether plaintiff took adequate steps to achieve actual notice.’
[Citations.]” (Selvidge v. Tang (2018) 20 Cal.App.5th 1279, 1283–1284.)
Here, plaintiffs’ March 2018 letter, sent to Sedgwick Claims as the agent for
defendant, meets this test. (Civ. Code, § 2332 [“As against a principal, both
principal and agent are deemed to have notice of whatever either has notice
17
of, and ought, in good faith and the exercise of ordinary care and diligence, to
communicate to the other”].)7
DISPOSITION
The judgment is affirmed.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Burns, J.
_________________________
Langhorne, J.*
A161951/Lopez v. American Medical Response West
7Under a final heading stating, “The Trial Court Committed Reversible
Error Because the Court’s Rulings Were Contrary to the Strict Mandates
Applicable to Summary Judgment,” the plaintiffs argue generally that they
successfully disputed several of AMR’s material facts, AMR failed to meet its
burden of proof, and the evidence was not liberally construed in favor of
plaintiffs. Although plaintiffs set out general principles applicable to motions
for summary judgment and list by number the facts they claim “were all
effectively and properly disputed,” they do not provide a developed argument
on any of these points. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th
266, 287 [“we may disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by which the
appellant reached the conclusions he wants us to adopt”].)
Judge of the Superior Court of Napa County, assigned by the Chief
*
Justice pursuant to article VI, section 6 of the California Constitution.
18
A161951/Lopez v. American Medical Response West
Trial Court: Superior Court of the County of Alameda
Trial Judge: Stephen Pulido
Counsel: Law Offices of Brian L. Larsen, Brian L. Larsen and
Joseph Lee for plaintiffs and appellants.
Rankin, Shuey, Ranucci, Mintz, Lampasona & Reynolds,
Maria M. Lampasona and Pamela B. Shafer for
defendant and respondent.
19