GARY LOW ET AL VS. DIGNITY HEALTH ET AL

Set for Law and Motion/Discovery Calendar on Monday, July 27, 2026, Line 1.

The motion for summary judgment or alternative motion for summary adjudication of defendants Joseph Zibulewsky, Zibulewsky ERMD, Inc., and Team Physicians of California Medical Group, Inc, is denied in its entirety. Moving parties withdrew the portions of their motion based on the applicable standard of care and causation, leaving only their argument that the claims of plaintiffs Gary and Susan Low are time-barred.

The parties agree that the statute of limitations began to run on August 29, 2022. Defendants argue that the 90-day tolling period of CCP 364(d) does not apply because plaintiffs served the CCP 364 notice on September 1, 2023 after the statute of limitations expired. There is a triable issue of material fact whether the plaintiffs served the CCP 364 notice within 90 days of expiration of the statute of limitations. Plaintiffs present evidence showing that a CCP 364 notice was sent by certified mail on August 5, 2023, which triggers the tolling period. (Susan Low Declaration, pars. 2-4, Exs. 1-3.) Per CCP 1013(a), service was effected on August 5, 2023, when the letter was deposited with the U.S. Postal Service.

Defendants contend that the August 5 mailing is ineffective to toll the statute of limitations because plaintiffs knew that Zibulewsky did not receive that mailing and seek to distinguish Silver v. McNamee (1999) 69 Cal.App.4th 269 on that basis. Defendants cite no authority holding that regular and certified mail are treated differently on this issue. Silver itself establishes that the same analysis applies to both regular and certified mail. There, a party served the CCP 364 notice by certified and regular mail and the court determined that service was complete when "those notices" were deposited in the mail. (Id. at 280 and 281).

Defendants' objection based on D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 is overruled. Susan Low's deposition testimony and declaration are not clearly and unequivocally at odds with each other. (Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 981-985 [explaining that the D'Amico rule applies to "clear and unequivocal" admissions/contradictions].)

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Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested.

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