Metropolitan News-Enterprise


Monday, June 8, 2020


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Lawyer Who Sued Doctor Is Excused, Based  On Estoppel, for Tardy Filing—C.A.

Jury’s $6.3 Million Award Is Restored in Opinion Placing Duty on Defendant, a Plastic Surgeon, Rather Than the Patient, an Attorney, to Have Realized Than No Arbitration Agreement Existed


By a MetNews Staff Writer


A lawyer who in 2008 threatened to bring suit against a plastic surgeon based on work he did on her face and neck that displeased her, but waited until 2012 to institute litigation, did not blow the one-year statute of limitation on medical malpractice actions, the First District Court of Appeal has held, reinstating a jury award of more than $6.3 million which the trial judge had scrapped.

After the trial, San Francisco Superior Court Judge Suzanne R. Bolanos determined that the action, filed Feb. 10, 2012, was time-barred, and ordered a dismissal. Reversal of that decision, based on equitable estoppel, came Thursday in an opinion by Acting Presiding Justice Carin T. Fujisaki of Div. Three.

Fujisaki declared that the doctor, Timothy Marten, had “induced plaintiff to refrain from filing a timely action” by acquiescing on Jan. 20, 2009, in her Nov. 13, 2008 demand for arbitration. At the time, neither party appreciated that Marten had not signed an agreement with his patient to arbitrate any dispute that might arise (although the patient and another doctor had done so).

Three days after Marten communicated the revelation that he was not a party to an arbitration agreement, the former patient sued.

Doctor’s Responsibility

The opinion holds the doctor, rather than the lawyer/patient, responsible for their mutual misapprehension as to their contractual duties, saying:

“[T]hat defendant did not actively conceal information or intend to mislead plaintiff is of no consequence on this record….The salient fact is that defendant responded to plaintiff’s arbitration demand in a manner so as to induce plaintiff to reasonably and in good faith proceed with arbitration instead of filing a legal action.”

Fujisaki wrote:

“The undisputed facts give rise to only one reasonable inference: plaintiff did not realize that defendant had not signed the subject arbitration agreement when she served her arbitration demand, and defendant’s failure to question or object to her arbitration demand, coupled with his written response indicating his express willingness to participate in arbitration proceedings, led plaintiff to actually and reasonably believe that she and defendant would resolve their dispute through arbitration and that commencing a legal action was unnecessary.”

‘Only Reasonable Conclusion’

She continued:

“Put another way, plaintiff did not timely file a lawsuit because she reasonably relied on defendant’s response to her arbitration demand, and the only reasonable conclusion to be drawn from the record is that defendant must be deemed estopped from relying on a statute of limitations bar.”

The lawyer who sued Marten did so in her actual name, but later gained an order from San Francisco Superior Court Judge Harold E. Kahn permitting her to maintain her action as “Jane Doe.” Fujisaki’s opinion utilizes that pseudonym.

Other issues in the appeal were dealt with in a portion of the opinion that was not certified for publication.

The case is Doe v. Marten, 2020 S.O.S. 2610.


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