Notice of Intent to Commence Action - California Medical Malpractice (CCP § 364)

NOTICE OF INTENT TO COMMENCE ACTION

(Pursuant to California Code of Civil Procedure § 364)

TABLE OF CONTENTS

1. Service Method
2. Notice Recipient
3. Sender / Counsel
4. Patient and Treatment Information
5. Statement of Legal Basis (CCP § 364(b))
6. Nature of Injuries Suffered (CCP § 364(b))
7. Type of Loss Sustained
8. Statute-of-Limitations Status and Tolling Notice
9. Demand for Preservation of Records and Evidence
10. Settlement / Pre-Suit Resolution Invitation
11. Insurance and Risk-Management Notice
12. Signature
13. Proof of Service
14. California Practice Notes
15. Sources and References

1. SERVICE METHOD

This Notice is being served upon the recipient identified below by:

☐ Certified Mail, Return Receipt Requested (preferred — CCP §§ 1012, 1013)

☐ Personal Service (CCP § 1011)

☐ Registered Mail with Return Receipt

☐ Service on the recipient's address of record with the Medical Board of California (per Phillips v. Sharp Memorial Hospital, 22 Cal. App. 4th 1810 (1994))

☐ Other (specify): [________________________________]

Date of Mailing/Service: [__/__/____]

USPS Tracking / Certified Article Number: [________________________________]

Earliest Permissible Filing Date (90 days after service): [__/__/____]

2. NOTICE RECIPIENT

TO:

Health Care Provider: [________________________________]

License No. / NPI: [________________________________]

Practice Address (Address of Record with Medical Board):

[________________________________]

[________________________________]

[________________________________]

AND TO (if applicable):

Health Care Institution / Facility: [________________________________]

License No. / Registered Agent: [________________________________]

Address:

[________________________________]

[________________________________]

[________________________________]

Risk Management / Claims Department:

[________________________________]

Professional Liability Carrier (if known):

[________________________________]

3. SENDER / COUNSEL

Claimant / Patient: [________________________________]

Date of Birth: [__/__/____]

Counsel of Record (if represented):

[________________________________], Cal. State Bar No. [######]

[LAW FIRM NAME]

[STREET ADDRESS]

[CITY, CALIFORNIA ZIP]

Telephone: [________________________________]

Facsimile: [________________________________]

Email: [________________________________]

4. PATIENT AND TREATMENT INFORMATION

5. STATEMENT OF LEGAL BASIS (CCP § 364(b))

PLEASE TAKE NOTICE that the undersigned, on behalf of the above-named Claimant, hereby gives notice of intent to commence a civil action against you for damages arising from professional negligence, pursuant to California Code of Civil Procedure § 364.

The legal basis of the contemplated action is:

☐ Medical Negligence (Standard of Care). Failure to exercise the degree of skill, knowledge, and care ordinarily possessed and exercised by reputable members of the same profession in the same or similar locality.

☐ Hospital / Institutional Negligence. Negligent credentialing, staffing, supervision, training, retention, equipment maintenance, or enforcement of policies and protocols, in violation of the institution's non-delegable duties.

☐ Vicarious Liability / Ostensible Agency. Liability for the acts and omissions of actual or apparent agents, servants, or employees acting within the course and scope of their relationship with the institution.

☐ Lack of Informed Consent. Failure to disclose material risks, alternatives, and consequences of the proposed treatment that a reasonable patient would deem material to the decision to undergo the treatment.

☐ Negligent Supervision / Negligent Hiring.

☐ Wrongful Death. (If applicable, on behalf of the heirs of the decedent under CCP §§ 377.60–377.62.)

☐ Survival Action. (If applicable, on behalf of the decedent's estate under CCP § 377.30.)

☐ Other (specify): [________________________________]

The factual basis of the contemplated action is summarized as follows:

[________________________________]

[________________________________]

[________________________________]

[________________________________]

6. NATURE OF INJURIES SUFFERED (CCP § 364(b))

As a direct and proximate result of the conduct described above, the Claimant has suffered the following injuries:

☐ Physical injury, specifically: [________________________________]

☐ Permanent impairment / disability: [________________________________]

☐ Disfigurement / scarring

☐ Surgical revision / additional procedures required

☐ Loss of organ or function: [________________________________]

☐ Birth injury / neurological injury to a minor

☐ Death of patient on or about [__/__/____]

☐ Aggravation of preexisting condition: [________________________________]

☐ Mental anguish, emotional distress, anxiety, depression

☐ Loss of consortium (if pleaded by spouse)

☐ Other: [________________________________]

7. TYPE OF LOSS SUSTAINED

The Claimant has sustained, and will continue to sustain, the following categories of loss:

☐ Past medical, hospital, surgical, rehabilitative, and pharmaceutical expenses (presently estimated at $[AMOUNT])

☐ Future medical and rehabilitative expenses, including life-care-plan items

☐ Past lost wages and earnings (presently estimated at $[AMOUNT])

☐ Future loss of earnings and earning capacity

☐ Loss of household services

☐ Past and future physical pain, mental anguish, fear, anxiety, humiliation, and loss of enjoyment of life (subject to the noneconomic-damages cap of California Civil Code § 3333.2 as amended by AB 35 (2022))

☐ Funeral and burial expenses (wrongful-death cases)

☐ Loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support, and training and guidance (wrongful-death cases)

☐ Other: [________________________________]

8. STATUTE-OF-LIMITATIONS STATUS AND TOLLING NOTICE

8.1. Pursuant to California Code of Civil Procedure § 340.5, the statute of limitations applicable to the contemplated action is the earlier of three (3) years from the date of injury or one (1) year from the date the Claimant discovered, or through reasonable diligence should have discovered, the injury and its negligent cause.

8.2. The currently calculated limitations deadline for this matter is [__/__/____].

8.3. Tolling Notice (CCP § 364(d)). ☐ This Notice is served within 90 days of the expiration of the applicable limitations period. Pursuant to Code of Civil Procedure § 364(d) and Woods v. Young, 53 Cal. 3d 315 (1991), the time for the commencement of the action is therefore extended 90 days from the service of this Notice, to [__/__/____].

☐ This Notice is served more than 90 days before the expiration of the applicable limitations period. The § 364(d) tolling provision is therefore not triggered, and the action will be commenced no earlier than 90 days after the service of this Notice and no later than the unextended limitations deadline above.

8.4. Minor / Foreign-Body / Concealment Tolling. ☐ N/A ☐ The Claimant asserts that one or more of the following tolling provisions of CCP § 340.5 applies: (a) the Claimant was a minor under the age of six on the date of injury; (b) fraud; (c) intentional concealment; (d) presence of a non-therapeutic foreign body. Counsel reserves the right to plead such tolling theories in the Complaint.

9. DEMAND FOR PRESERVATION OF RECORDS AND EVIDENCE

The recipient is hereby placed on notice of a duty to preserve all records, documents, materials, and electronically stored information ("ESI") relating to the Claimant's care. The recipient is specifically instructed to preserve, and not to alter, destroy, modify, or dispose of:

• The Claimant's complete medical chart, including all paper and electronic records, in original native format;
• All audit trails, access logs, and metadata associated with the Claimant's electronic medical record;
• All imaging studies in DICOM format (not merely the radiologist's report);
• All laboratory and pathology specimens, slides, and reports;
• All operative and procedure notes, including surgeon's notes, anesthesia records, perfusionist's records, and circulating-nurse records;
• All medication administration records (MAR), pharmacy dispensing records, and pump records;
• All telemetry, fetal monitoring, and continuous-physiologic-monitoring strips;
• All incident reports, sentinel event reports, and root-cause analyses (subject to applicable peer-review privilege under Evid. Code § 1157);
• All correspondence, emails, text messages, and other communications among the involved providers concerning the Claimant;
• All policies, protocols, bylaws, and procedures in effect on the date(s) of treatment;
• All credentialing files, peer-review files, and personnel files of involved providers (preserve; production governed by privilege); and
• All video, audio, security, and surveillance recordings depicting the Claimant or the relevant treatment area(s) on the date(s) of treatment.

Failure to preserve relevant evidence may give rise to spoliation sanctions and adverse-inference instructions under CCP § 2023.030 and Cedars-Sinai Medical Center v. Superior Court, 18 Cal. 4th 1 (1998).

10. SETTLEMENT / PRE-SUIT RESOLUTION INVITATION

The Claimant, by and through counsel, is willing to discuss pre-litigation resolution of this matter during the 90-day notice period. The Claimant is prepared to consider:

☐ Pre-suit mediation before a mutually agreeable neutral

☐ Early exchange of medical records and expert opinions under a non-disclosure agreement

☐ Confidential settlement negotiations directly with the recipient's professional liability carrier

☐ Statutory binding arbitration if the recipient relies on an enforceable arbitration agreement (CCP § 1281 et seq.)

If the recipient wishes to pursue any of these options, please contact undersigned counsel within thirty (30) days of receipt of this Notice. The Claimant reserves all rights, and nothing in this Notice shall be construed as a waiver of any claim or defense.

11. INSURANCE AND RISK-MANAGEMENT NOTICE

The recipient is requested to forward this Notice immediately to the recipient's professional liability insurance carrier, risk-management department, and any applicable self-insured retention administrator. Please confirm receipt of this Notice and identify the appropriate claims contact in writing within fifteen (15) days.

12. SIGNATURE

Dated: [DATE]

Respectfully,

[________________________________]

[ATTORNEY NAME], Cal. State Bar No. [######]

[LAW FIRM NAME]

Attorney for Claimant [CLAIMANT NAME]

[STREET ADDRESS]

[CITY, CALIFORNIA ZIP]

Telephone: [________________________________]

Email: [________________________________]

13. PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF [COUNTY]

I am over the age of 18 and not a party to the within action; my business address is [STREET ADDRESS], [CITY, CALIFORNIA ZIP]. On [DATE], I served the foregoing NOTICE OF INTENT TO COMMENCE ACTION (CCP § 364) on the parties identified below by:

☐ Certified Mail, Return Receipt Requested. I placed the document in a sealed envelope, with first-class postage prepaid, and certified-mail / return-receipt charges affixed, addressed as set forth below, and deposited the envelope with the United States Postal Service at [CITY], California. Article No.: [________________________________].

☐ Personal Service. I caused the document to be personally delivered to the addressee(s) below.

☐ Mail to Address of Record (Medical Board of California). I addressed the envelope to the recipient's address currently on file with the Medical Board of California, as authorized by Phillips v. Sharp Memorial Hospital, 22 Cal. App. 4th 1810 (1994).

Addressee(s):

[________________________________]

[________________________________]

[________________________________]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [DATE] at [CITY], California.

[________________________________]

[NAME OF DECLARANT]

14. CALIFORNIA PRACTICE NOTES

14.1 Statutory Framework

CCP § 364 was enacted as part of the original Medical Injury Compensation Reform Act (MICRA) of 1975 and remains in force. AB 35 (2022) amended Civil Code § 3333.2 (cap) and Bus. & Prof. Code § 6146 (fees) but did not amend § 364 itself; the 90-day notice and content requirements are unchanged.

14.2 Effect of Non-Compliance — CCP § 365

Failure to comply with the 90-day notice requirement is not a jurisdictional bar. The complaint is not subject to dismissal on that ground (Edwards v. Superior Court, 93 Cal. App. 3d 172 (1979)). The sole sanction is professional discipline of the attorney by the State Bar (CCP § 365). Nevertheless, compliance is mandatory in practice because:

• It permits the § 364(d) tolling that often saves a marginally-timely action;
• It facilitates pre-suit resolution and demand-package exchange;
• Filing without notice exposes counsel to State Bar referral and may be considered by the court in fee-shifting and sanctions motions.

14.3 Tolling Mechanics — CCP § 364(d) and Woods v. Young

The California Supreme Court in Woods v. Young, 53 Cal. 3d 315 (1991), held that § 364(d) operates as a true tolling provision: when notice is served during the last 90 days of the limitations period, the limitations period is extended 90 days from the date of service of the notice. This effectively gives plaintiff one year and 90 days from discovery, or three years and 90 days from injury, whichever is the operative deadline. Repeat notices to the same defendant do not generate additional tolling beyond the first 90-day extension. Calendar carefully.

14.4 Service on Address of Record

In Phillips v. Sharp Memorial Hospital, 22 Cal. App. 4th 1810 (1994), the court held that mailing the § 364 notice to the address a physician maintains on record with the Medical Board of California satisfies the statute, even if the physician no longer resides at or practices from that address. This is a critical fallback when a defendant physician has relocated, retired, or cannot be located through ordinary skip tracing.

14.5 Defining Health Care Provider — CCP § 364(f)

The statute applies to:

• Physicians, surgeons, dentists, podiatrists, optometrists, registered nurses, licensed vocational nurses, psychologists, marriage and family therapists, clinical social workers, physician assistants, chiropractors, acupuncturists, midwives, and other professionals licensed under Bus. & Prof. Code Div. 2;
• Persons licensed under the Osteopathic Initiative Act and the Chiropractic Initiative Act;
• Clinics, health dispensaries, and health facilities licensed under Health & Safety Code Div. 2 (e.g., general acute care hospitals, skilled nursing facilities, surgical clinics, ambulatory surgical centers).

A § 364 notice is not required for non-health-care defendants (e.g., medical-device manufacturers under products liability theories) although the cleanest practice in a hybrid case is to serve a § 364 notice on the health-care defendants and proceed under ordinary notice rules for the products defendant.

14.6 MICRA Cap Disclosure in Notice

Best practice is to identify (in Section 7 above) that noneconomic damages are subject to the AB 35 cap. The current (2026 filing-year) cap amounts under Civil Code § 3333.2 are:

Disclosure does not waive any argument that multiple cap categories apply (provider, institution, unaffiliated).

14.7 Attorney Fee Disclosure — Bus. & Prof. Code § 6146

Counsel's engagement letter with the Claimant must comply with the AB 35 contingency-fee tiers:

• 25% of the recovery if the matter resolves before a complaint or arbitration demand is filed;
• 33% of the recovery if the matter resolves after a complaint or arbitration demand is filed;
• A higher fee may be allowed upon judicial finding of good cause where the matter is fully tried or arbitrated.

This is a material change from the pre-AB 35 sliding scale (40%/33%/25%/15% by recovery tier), and pre-AB 35 retainers must be conformed before the matter is filed.

14.8 Calendaring Checklist

☐ Date of injury entered: [__/__/____]

☐ Date of discovery entered: [__/__/____]

☐ § 340.5 deadline calculated (earlier of 3 yrs / 1 yr discovery): [__/__/____]

☐ § 364 notice served on or before: [__/__/____]

☐ Earliest filing date (notice + 90 days): [__/__/____]

☐ § 364(d) tolling triggered? ☐ Yes ☐ No

☐ Tolled deadline (if applicable): [__/__/____]

☐ Multiple defendants — separate notices served on each? ☐ Yes

☐ Carrier acknowledgment received? ☐ Yes ☐ No

15. SOURCES AND REFERENCES

• Cal. Code Civ. Proc. § 364 — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=364.
• Cal. Code Civ. Proc. § 365 (sanction for non-compliance — discipline only)
• Cal. Code Civ. Proc. § 340.5 — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=340.5&lawCode=CCP
• Cal. Code Civ. Proc. §§ 1010–1013 (service of papers)
• Cal. Civ. Code § 3333.2 (MICRA noneconomic cap, as amended by AB 35) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=3333.2.
• Cal. Bus. & Prof. Code § 6146 (MICRA attorney fees, as amended by AB 35) — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=BPC&sectionNum=6146.
• Cal. Civ. Code § 56 et seq. (CMIA)
• Cal. Evid. Code § 1157 (peer review privilege)
• AB 35 (Stats. 2022, ch. 17) — California Legislative Information
• Woods v. Young, 53 Cal. 3d 315 (1991) (CCP § 364(d) tolling mechanics)
• Edwards v. Superior Court, 93 Cal. App. 3d 172 (1979) (non-compliance not jurisdictional)
• Phillips v. Sharp Memorial Hospital, 22 Cal. App. 4th 1810 (1994) (service on Medical Board address of record)
• Cedars-Sinai Medical Center v. Superior Court, 18 Cal. 4th 1 (1998) (spoliation)
• Silver v. McNamee, 69 Cal. App. 4th 269 (1999) (multiple notices and tolling)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. The 90-day notice requirement and the § 364(d) tolling provision require careful calendaring. Verify all statutory citations and current MICRA cap and fee amounts before service. An attorney licensed in California must review and customize this document before use.