Metropolitan News-Enterprise


Tuesday, December 6, 2016


Page 1


Court of Appeal Declares:

Mandamus Proceeding Equitably Tolled Limitations Period for Damage Action


By a MetNews Staff Writer


The statute of limitation for a doctor to seek monetary damages against a hospital for wrongfully suspending his privileges was equitably tolled during the period he was seeking reinstatement of the privileges through a writ proceeding, the Court of Appeal for this district held yesterday.

The opinion, by Los Angeles Superior Court Judge Virginia Keeny, sitting on assignment, was not certified for publication. It reverses a determination by then-Los Angeles Superior Court Judge Michelle R. Rosenblatt (now a private judge) that an action by Dr. George Rappard, a radiologist, was time-barred.

Rappard in 2008 sought a writ of mandate against Providence Saint Joseph Medical Center, a hospital in Burbank, and others, to compel reinstatement of his privileges relating to neurointerventional radiology. On Nov. 9, 2009, Judge James Chalfant observed that the petition appeared “to be meritorious,” but denied it as moot inasmuch as the privileges had been restored.

The radiologist filed his action for damages on April 12, 2010--67 days after expiration of the two-year statute of limitation, in the absence of a tolling.

Rosenblatt Explains Ruling

In granting summary judgment in favor of the hospital and the contractor that evaluates physicians, Rosenblatt said that Rappard “has not raised a triable issue of fact concerning the application of equitable tolling,” declaring that “[h]is argument simplifies the mandate proceeding and wholly fails to address the elements necessary for the application of this principle.”

She said a review of Chalfant’s ruling shows that allegations put forth in seeking a writ “were more limited than what has been alleged in this case.” Rosenblatt also observed that Rappard “had time, within the limitations period, after the November 2009 dismissal of his mandate action, to file a timely complaint.”

In reversing, Keeny wrote that the “doctrine of equitable tolling suspends or extends the statute of limitations for a cause of action while the plaintiff pursues a separate legal remedy” and said the requirements are “a showing of (1) timely notice to the defendant by filing of the first claim; (2) lack of prejudice to the defendant; and (3) reasonable and good faith conduct by the plaintiff.”

The acting justice found all elements satisfied.

Delay Not Germane

“Respondents miss the mark…when they focus on whether Rappard acted in good faith when he waited five months after denial of the writ petition and two months after the running of the statute of limitations to initiate the damages suit,” she said, pointing out:

“The good faith inquiry examines primarily whether Rappard’s motivation in filing the first action was reasonable. In the instant case, it was completely appropriate for Rappard to pursue the writ of mandamus action, as it provided alternative relief which could have remedied or lessened his damages by having his privileges reinstated.  Pursuit of a writ proceeding benefited the courts, as the writ could reduce the costs associated with duplicative filings….Moreover, the law with respect to exhausting mandamus relief was sufficiently complex at the time that a doctor in Rappard’s position could reasonably conclude that he had to file a mandamus action in order to preserve his right later to bring a damages action.”

Keeny rejected the argument that under case law, equitable tolling cannot be invoked where successive actions are brought in the same court. She said that cases taking that position do not involve an action at law following a proceeding in mandate.

In Myers v. County of Orange (1970) 6 Cal.App.3d 626, the court applied equitable tolling where an action for damages came on the heels of an action seeking writ relief. She said:

“We agree with Myers that equitable tolling can be invoked by a plaintiff who reasonably seeks one remedy by writ petition and later seeks damages as part of a civil suit, even if ultimately brought in the same court.  The pursuit of alternative remedies which could limit damages and reduce the consumption of time in the trial courts fully meets the policy goals undergirding equitable tolling.”

The case is Rappard v. Providence Saint Joseph Medical Center, B259473

Jeffery W. Johnson and Vicki C. Gadbois of Johnson & Brahn represented Rappard. Rory M. Hernandez and Antoinette D. Paglia of Hernandez & Paglia acted for the hospital, and Ron S. Kaufman, John C. Keith; and James R. Lahana of Fenigstein & Kaufman argued for affirmance on behalf of the contractor, Professional Staff of Providence Saint Joseph Medical Center.


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