Daily Blast March 16, 2012

On March 16, 2012, Division One of the Fourth Appellate District Court of Appeal (San Diego) published its decision in Scharer v. San Luis Rey Equine Hospital, Inc. (March 16, 2012; D057707) ___ Cal.App.4th ___, holding that the tolling provision of Code of Civil Procedure section 364 does not apply to claims for professional negligence against a veterinarian since such claims involve property damage and are not claims for “personal injury” or “wrongful death.” (Slip opn., pp. 6-7.)

Plaintiff filed this action alleging veterinary malpractice and other claims arising from alleged professional negligence after her show-horse died. (Slip opn. pp. 2-3.) The trial court granted defendants’ summary judgment motion, finding that the action was barred by the one-year statute of limitations in Code of Civil Procedure section 340, subdivision (c), which applies to claims for veterinary malpractice. (Id. at pp. 3-4.) Plaintiff argued that the statute of limitations was tolled since she sent a pre-lawsuit notice of intent to sue under section 364. (Id. at p. 1.) The trial court found that section 364 did not apply since it extended the statute of limitations only for malpractice claims that result in personal injury or wrongful death. (Id. at p. 2.) Claims for injury or death of an animal are for property damage. (Ibid.)

The Court of Appeal affirmed, holding that the tolling provisions of section 364 did not apply to the plaintiff’s claims. (Slip opn., p. 6.) The court explained that section 364 was enacted as part of MICRA and requires 90 days advance notice to be given prior to filing suit against “health care providers” in certain “professional negligence cases.” (Ibid.) According to the court, although veterinarians are health care providers, actions seeking damages from veterinarians for alleged injury or death to an animal are not actions for professional negligence since they do not result in a personal injury or wrongful death. (Id. at p. 7.) Rather, actions for veterinary malpractice seek damages for property damage since animals are a form of personal property. (Ibid.) 

The court concluded that its holding was not a new rule that could only be applied prospectively. (Slip opn., p. 13.) According to the court, section 364 has never applied to veterinary malpractice for injury to or death of an animal and its ruling did not change section 364 or its application. (Id. at pp. 13-14.) Therefore, this case might be helpful to anyone that has a pending case to which this rule could apply.

Related Practices

• Appellate