Tran v. Fountain Valley Community Hospital

Opinion

THE COURT.

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—Appellant, a minor, appeals the dismissal of his complaint based upon the statute of limitations. The judgment is reversed.

Facts

Appellant was bom on May 24, 1985. A complaint was filed on his behalf against defendants on Monday, May 24, 1993, alleging medical negligence occurring on the date of his birth.

Defendants demurred contending the complaint was untimely as it was not filed prior to the minor’s eighth birthday as provided for under the relevant code section. The court agreed and dismissed the complaint and minor appealed.

Discussion

The issue before us involves the interplay of two statutes with the birthday rule. The statute of limitations for an action brought by a minor under the age of six against a health provider is set forth as follows: “In an

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action for an injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of an action shall be three years after the date of the injury . . . except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.” (Code Civ. Proc., § 340.5; all further statutory references are to the Code of Civil Procedure unless otherwise indicated.)

Under section 12a, “If the last day for the performance of any act provided or required by law to be performed within a specified period of time shall be a holiday, then that period is hereby extended to and including the next day which is not a holiday. ...¶ This section applies ... to all other provisions of law, however stated or wherever expressed, providing or requiring an act be performed on a particular day or within a specified period of time.”

Here, appellant contends filing the complaint on appellant’s eighth birthday was appropriate because that day was a Monday and the last date to file the action would have been a holiday, i.e., Sunday.