Legal News

RECENT DECISION IN WHICH DIVISION FIVE OF THE FIRST APPELLATE DISTRICT HELD PLAINTIFF’S SUBJECTIVE MOTIVATION FOR WRITING A LETTER TO A HEALTH CARE PROVIDER IS NOT RELEVANT TO A DETERMINATION OF WHETHER THE LETTER CONSTITUTES A NOTICE OF INTENT TO SUE UNDER CCP SECTION 364.

KUMARI V. HOSPITAL COMMITTEE FOR THE LIVERMORE-PLEASANTON AREAS (JULY 6, 2017) 17 C.D.O.S. 6637

During plaintiff Veena Kumari’s hospitalization for childbirth, she fell and broke her right shoulder. Plaintiff sustained her injury on October 29, 3013, and on February 19, 2014, she wrote a letter to ValleyCare Health System (ValleyCare)1 which detailed the nature of the injury and the basis for her claim against ValleyCare, requested monetary compensation, and indicated she would “move to the court” if she did not receive a check within 20 days. The hospital investigated and then denied her claim. Thereafter, she and her husband retained counsel who wrote a 90-day notice letter pursuant to CCP section 364 to ValleyCare on October 27, 2014. This second letter also set out the allegations of negligence against the hospital, the nature of plaintiff’s injuries as a result of that alleged negligence, and an intention to commence a lawsuit “after the expiration of 90 days from the date of this notice.” On January 23, 2015—more than a year after her injury—plaintiffs sued ValleyCare for professional negligence and loss of consortium.

ValleyCare moved for summary judgment. It contended plaintiffs’ case was time-barred because Kumari’s initial letter to ValleyCare constituted notice of intent to sue under CCP section 364, even though plaintiff maintained she did not know about CCP section 364 or what a 90-day notice letter was at the time she wrote the letter, nor did she “intend” for the letter to fall within the provisions of that statute. Rather, she claimed “her letter was an ‘informal’ effort to try to resolve her concerns in ‘a friendly way.’” The defendant maintained it did not matter what plaintiff’s specific knowledge or intent was—the letter clearly met all the criteria of a notice of intent to sue under CCP section 364 and Kumari’s own deposition testimony bore that out:

In support of the motion, ValleyCare offered Kumari’s deposition testimony. Kumari testified that when she wrote the letter, she believed the nurse was negligent. She wrote the letter to obtain a settlement before hiring an attorney; she wanted to give ValleyCare an opportunity to settle the dispute before she filed a lawsuit. When she wrote the letter, Kumari’s state of mind was that she would “ ‘go through the legal route’ ” if ValleyCare did not send her a check. When ValleyCare’s insurer responded to her letter, Kumari knew the insurer was investigating her claim so it could respond to her demand for money.


Interestingly, plaintiff set out in a declaration that accompanied her opposition papers that “the letter was not a notice of her intention to sue ValleyCare, nor was it ‘written in an attempt to satisfy any legal requirement that notice be given to ValleyCare before a legal action would be filed against it. When I wrote that letter, I hoped to resolve my concerns in a friendly way, without going the legal route.’” Defendant maintained that neither plaintiff’s state of mind nor lack of awareness of section 364 should have any effect on the applicability of the statute in this case. In addition, plaintiff’s contradictory declaration could not create a triable issue of fact about whether the letter was “a notice of intent to sue.”

The trial court granted the MSJ because it found the action was time-barred under the one-year limitations period of CCP section 340.5. The trial court also rejected plaintiffs’ contention that the second letter to ValleyCare (written by plaintiffs’ counsel) was a valid notice of intent to sue that should toll the one year statute:

The court rejected the contention that plaintiffs’ counsel’s letter tolled the statute of limitations for 90 days. As the court explained, “that would only be true if Kumari’s February 19, 2014 letter . . . did not constitute a notice of intent to sue pursuant to [section] 364. If Kumari’s letter constituted a notice of intent to sue pursuant to [section] 364, then the (second) notice of intent to sue served by Plaintiffs’ counsel on October 27, 2014 was a nullity.” The court determined Kumari’s letter was an intent to sue: it fulfilled the purpose of section 364 by putting ValleyCare on notice of Kumari’s claim and by attempting to reach a settlement before litigation. According to the court, Kumari’s letter contained the information required by section 364 and indicated an intent to sue if Kumari’s “claim was not resolved to her satisfaction. . . . Although Kumari asserts in her declaration that she was unaware of any legal requirement to give notice prior to suing . . . she does not (and cannot) deny that she notified [ValleyCare] in her letter of her injuries and that she would ‘move to court’ if [ValleyCare] did not pay her $240,000.”


The trial court determined, “as a matter of law, based on the undisputed evidence,” that Kumari’s initial letter constituted notice under CCP section 364, that plaintiff’s intention or state of mind when she wrote and sent the letter was irrelevant, that the letter was served before the last 90 days of the one-year limitations period and therefore did not trigger an extension of the statutory period under section 364, and that plaintiffs’ counsel’s second “notice of intent” letter was a “nullity.” Judgment was entered for ValleyCare and plaintiffs appealed.

The appellate court affirmed. In so doing, it discussed the interplay between CCP sections 340.5 and 364. It emphasized that section 364 does not require any particular format or language, and the one-year statute is only extended by a 364 notice if that notice is served within the last 90-days of the applicable limitations period:

‘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. (Cite omitted.) 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.’”


Kumari’s characterization of the initial letter as “informal” and therefore outside the purview of section 364 was of no import, since “no particular form of notice” is required. The court held the letter was a notice of intent under section 364 because it set out the date of injury, a description of the events that gave rise to her claim, a description of the injury and medical care required to treat it, and the damages allegedly sustained. Finally, it demanded payment of a sum of money by a certain time or else Kumari said she would “move to the court” for resolution of her claim. ValleyCare used that letter to investigate the claim, requested that she sign authorization for release of her medical records as part of the investigation (which she signed), and then rejected the claim in writing on the grounds the standard of care was not breached. There is no requirement in CCP section 364 that the letter specify it is being sent with the specific intention to comply with that statute. As a consequence, plaintiff’s letter did constitute a notice under section 364 and her action was time-barred. The “second notice” by the attorneys was, in the opinion of the court, “surplusage.”

This is an excellent decision in which all three justices concurred. While some statutes do require that specific language or font size be used to constitute legal notice under the terms of a given statutory provision, this decision makes clear that CCP section 364 is not one of them. As long as the contents of the patient/plaintiff letter meet the general requirements of the statute, an initial complaint letter could be considered a 364 notice even though it does not state that it is intended to be section 364 statutory notice. This could have broad implications in medical negligence cases in which self-represented patients write to doctors or insurance companies early in the litigation and set forth information like that set forth by Kumari in her letter—allegations about purported negligence, details of injury and subsequent care required, and demand for payment before resort to the courts. Also, the court was clear that a second 90 day notice letter written by subsequently hired counsel in the last 90 days of the applicable limitations period will be mere “surplusage” that does not toll the statute.



1ValleyCare Health system is a fictitious name for the defendant’s true name, “The Hospital Committee for the Livermore-Pleasanton Areas;” the court referred to defendant as “ValleyCare.”



For more information on this and other recent decisions, please reach out to Reneé A. Richards.