Selvidge v. Tang

Filed 3/5/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

MARYJANE SELVIDGE et al., C083427

Plaintiffs and Appellants, (Super. Ct. No. 34201500174548)

v.

SULLYVAN W. TANG,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Sacramento County, Raymond M. Cadei, Judge. Reversed with directions.

Klinedinst PC, Betsy S. Kimball and Andrew J. Alfonso, for Plaintiffs and Appellants.

Low McKinley Baleria & Salenko, LLP, Thomas M. Gaberson, for Defendant and Respondent.

This appeal asks us to determine whether mailing a notice of intent to file an action to a physician’s address of record with the Medical Board of California (the medical board) provides adequate notification of a potential medical malpractice suit

1

under the Medical Injury Compensation Reform Act. 1 We determine that it does and accordingly reverse the trial court’s determination to the contrary. FACTUAL AND PROCEDURAL BACKGROUND On November 4, 2013, Vincent Selvidge died of a heart attack. His surviving wife and children (plaintiffs) sought to sue defendant, a physician who treated Selvidge, for medical malpractice. 2 Plaintiffs filed their suit on January 28, 2015; 85 days after the one-year statute of limitations to bring a medical malpractice claim had expired. (Code Civ. Proc., 3 § 340.5.) Defendant moved for summary judgment on the ground that the suit was untimely. Plaintiffs claimed they were entitled to tolling of the limitation period for 90 days pursuant to section 364 because they provided notice to defendant on October 24, 2014, of their intention to sue him. By their reasoning, the statute of limitations did not expire until February 2, 2015, and their suit was timely. To prove they provided notice to defendant, plaintiffs submitted a declaration from the legal assistant to plaintiffs’ attorney. She declared under penalty of perjury that she “caused to be placed in the United States mail” a notice of intent to file an action against defendant on October 24, 2014. She mailed the notice of intent to a Southern California address listed for defendant on the medical board’s Web site. She also called the facility in Rancho Cordova where defendant had treated Selvidge and learned defendant was no longer an employee. Although the legal assistant declared that the notice was not