Stuckman v. Woodhull

ASHBURN, J. Appeal from judgment for defendant entered pursuant to an order sustaining without leave to amend a demurrer to plaintiffs’ complaint. The action is one for malpractice, alleged to have occurred in August, 1954, the facts being known immediately to plaintiffs. The instant complaint was filed on February 13, 1957. The demurrer, which was sustained without leave, relied upon subdivision 3 of section 340, Code of Civil Procedure, which establishes the applicable limitation of one year. (38 Cal.Jur.2d, § 91, p. 708.)

To escape that limitation appellants’ counsel has incorporated in the instant record (in a manner warranting our taking cognizance of same) the proceedings in a former suit upon the same cause of action which resulted in a judgment of dismissal pursuant to section 581, subdivision 3, Code of Civil Procedure. Reliance is placed upon Bollinger v. National Fire Ins. Co., 25 Cal.2d 399 [154 P.2d 399], and the argument is that the former action was defeated by a technicality, the present one is a substantial continuance of the former, and, it having been commenced promptly, the statute was suspended for the period intervening between the commencement of the two actions.

The facts are these: On June 16, 1955, plaintiffs sued defendant physician in Los Angeles County for damages for malpractice occurring in August, 1954, when, as it was alleged, defendant, who had undertaken to act as plaintiff Harold Stuckman’s physician, abandoned the case at a critical time and on August 10, 1954, refused to treat the plaintiff any further. Plaintiff had to obtain other medical and surgical aid, undergo two operations in August and September, 1954, as a result of which things plaintiffs claimed a large amount of damages. Defendant answered on July 8, 1955, and the ease came on for trial on October 2, 1956. A motion for continuance was made on behalf of plaintiffs and denied by the presiding judge; the cause was transferred to another judge for trial and then retransferred to the presiding judge. The minutes of that department say: “Plaintiff’s motion for continuance is denied. Cause is transferred to Department 28 for trial. Later, cause is retransferred from Dept. 28 to [426]Dept. One. Counsel for plaintiffs stating that plaintiffs were absent from the jurisdiction on vacation notwithstanding his advice that they appear for trial this date, and that plaintiffs had no admissible evidence to offer, whereupon defendant moves the court for judgment of dismissal under the provisions of Section 581, sub(3) C.C.P., said motion is granted by the court, and the defendant, C. G. Woodhull, is given judgment for his costs of suit herein against the plaintiffs Harold Stuckman and Hazel Stuckman, in the sum of $__ Let execution issue hereon.”