Plaintiff Bertha Estrella appeals from summary judgment entered for defendants George A. Brandt, M.D., and French Hospital in this medical malpractice action. Because we conclude that the District Court erroneously interpreted the applicable statutes of limitations, Cal.Civ.Pro.Code §§ 340.5, 356, 364, we reverse.
I. FACTS
Plaintiff was admitted to French Hospital on May 27,1977, suffering multiple complications of eclampsia related to her pregnancy. Her blood pressure was elevated, her extremities were swollen, and within an hour she convulsed. Six hours later she was transferred to Los Angeles County/USC Medical Center, where her baby was delivered by Caesarian section.
Between May 27 and June 8, 1977, plaintiff suffered a number of serious medical problems, most of which were resolved by the time of her discharge from the Medical Center on June 19,1977. Plaintiff contends that sometime after June 19, 1977, she discovered she had suffered brain damage. Plaintiff, however, submitted no probative evidence in her summary judgment papers relating to the alleged brain damage.
*816 Plaintiff served the requisite Notice of Intent to commence an action against defendants on April 21, 1980, and filed her complaint on September 9, 1980. She alleged negligence on the part of both defendants in their prenatal care of plaintiff between November 12, 1976, and May 27, 1977, which proximately caused her condition “to ripen into eclmapsia [sic], in turn causing plaintiff great pain of body and mind.” Plaintiff’s Complaint at 2.
Defendants moved to dismiss the action on November 24,1980, on the basis that the complaint was barred by the three-year statute of limitations, Cal.Civ.Pro.Code § 340.5. The District Court, treating the motions as motions for summary judgment, denied summary judgment and held the complaint timely under
Gomez v. Valley View Sanitorium,
Defendants again moved for summary judgment on July 29, 1981, citing a new appellate decision,
Braham v. Sorenson,
II. DISCUSSION
Plaintiff raises three issues on appeal: (1) whether summary judgment was improper because there existed a genuine issue as to plaintiff’s “date of injury”; (2) whether the District Court erred in applying the Bra-ham interpretation of the applicable California statutes of limitations; and (3) whether the District Court erred in applying the Braham rule retrospectively to this case. For purposes of our disposition we begin with the issue of statutory interpretation.
A. Interpreting the Applicable Statutes of Limitations
Three California appellate courts have now construed the meaning of the applicable statutes of limitations, whose conflicting provisions provide:
§ 340.5 In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury ....
§ 364 (a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.
(d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.
§ 356 . .. When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.
In the earliest case,
Gomez v. Valley View Sanitorium,
Because Code of Civil Procedure section 364 prohibits the commencement of *817 an action until 90 days have expired when a plaintiff serves the required notice of intention to commence it, that 90-day period must be excluded when calculating the applicable statute of limitations. Where section 364 also operates to extend the period of limitations because notice is served within 90 days of the expiration of the statute, the plaintiff is entitled to that extension [90 days under § 364(d)] as well as the tolling of the statute during the 90 days plaintiff is prohibited from filing his action.
In the next case,
Braham v. Sorenson,
Finally, in
Banfield v. Sierra View Local District Hospital,
Under the
Erie
doctrine, a federal court sitting in diversity is not free to reject a state judicial rule of law merely because it has not received the sanction of the state’s highest court, but it must ascertain from all available data what the state law is and apply it. West v.
A. T. & T. Co.,
In this case the District Court, faced with conflicting appellate decisions concerning “a complex question of statutory interpretation,”
see Banfield,
In
Banfield,
the only California decision that thoroughly discusses the problem of construing sections 364(a), 364(d), and 356, the majority reasoned that principles of statutory construction followed in
People v. Ventura Refining Co.,
On the other hand, as the
Banfield
dissent noted, the
Braham
construction of the statute renders section 364(d) superfluous. If every plaintiff is entitled only to the 90-day tolling period when notice is required, there is no reason to examine the date notice is served—the date specified by section 364(d). Thus, it is questionable whether “the words are sufficiently flexible to admit of some other construction . . . . ”
Ventura Refining Co.,
We agree with the
Banfield
dissent that the
Gomez
construction is the only one that breathes life into section 364(d).
See id.
at 467,
The Braham/Banfield interpretation yields a result that wholly ignores the dictates of section 364(d): to extend “the time for the commencement of the action,” i.e., the limitations period, for a period of 90 days measured from the date notice of intent to sue is served. From the language of section 364(d) it is apparent that the Legislature intended (1) that for a plaintiff who serves notice within the last 90 days of the original limitations period that period is “extended” for a variable period beyond the initial expiration date, not “tolled” for an automatic 90 days, and (2) that the extension be calculated from the date of “service of the notice,” by its terms a date that varies with each case.
We cannot accept the view that the Legislature intended section 364(d) as a mere “clarification” to litigants as to the operation of section 356 upon the limitations period.
See Banfield,
With respect to the argument that this interpretation creates certain anomalies, we again agree with the
Banfield
dissent: (1) it is evident that the Legislature
intended
a variable limitation period, for the section dictates measuring the extension from a variable date (the date of service); (2) the apparent inequity in the operation of the statute does not justify “read[ing] code sections, validly enacted by the Legislature, out of existence just to reach an otherwise socially desirable result.”
Id.
at 467,
Plaintiff served her Notice of Intent to commence an action on April 21, 1980, less than 90 days before the expiration of the original limitations period. 1 Her complaint was timely filed within 180 days after the date of service of the Notice of Intent. The summary judgment for defendants, therefore, must be reversed. 2
B. Fact Issues Concerning the “Date of Injury” to Plaintiff
Plaintiff contends also that summary judgment is precluded because a genuine issue of fact exists as to when the statute of limitations began to run.
The statute of limitations invoked by defendants provides that the time for commencement of a medical malpractice action “shall be three years after the
date of injury.”
Cal.Civ.Pro.Code § 340.5 (emphasis added). California courts have uniformly interpreted the term “injury” in section 340.5 to mean the damaging effect of the wrongful act, not the act itself.
See Larcher v. Wanless,
The District Court reasoned that if it applied the statute of limitations rule in Braham the complaint was untimely if plaintiff’s appreciable harm first manifested itself well before June 11, 1977. 3 After deciding to apply the Braham rule, the court reviewed all of the submitted evidence and concluded that “appreciable harm existed, had manifested itself well before the last problem noted on the problem list [June 8, 1977].” IV Reporter’s Transcript at 14.
A review of the evidence submitted, which consisted entirely of hospital records that were undisputed, supports the court’s conclusion. Plaintiff was admitted to the Los Angeles County/USC Medical Center with serious problems on May 27, 1977, and she developed at least eight more medical problems prior to June 8, 1977. Her complaint alleges acts of omission that led to eclampsia; she was admitted to the French Hospital on May 27, 1977 with a diagnosed case of eclampsia.
Plaintiff contends that she did not suffer “appreciable harm” until “her overall condition and the true consequences of the Defendants’ negligence finally became clear.” Opening Brief of Appellant at 17-18. However, in interpreting the three-year limitation period from the date of “injury,” California courts have held that a plaintiff’s knowledge or discovery of the negligent cause of her harm is not relevant.
See Bispo,
Moreover, plaintiff has not properly raised a factual issue by alleging the discovery of brain damage after July 19, 1977. Plaintiff’s assertion of brain damage appears only in her attorney’s legal memoranda filed with the District Court. Legal memoranda and oral argument are not evi
*820
dence and do not create issues of fact capable of defeating an otherwise valid summary judgment.
Flaherty v. Warehousemen Local 834,
Because the District Court determined only that there was no genuine issue that the date of plaintiffs injury was sometime prior to June 11, 1977, we have no occasion to consider whether a genuine issue of fact remains regarding whether the date of injury was prior to April 21,1977. See note 1 supra.
REVERSED. 4
Notes
. The District Court found only that the date of plaintiff’s injury was sometime prior to June 11, 1977. See Part 11(B) infra. Defendants have not argued that the date of injury was prior to April 21, 1977, and that plaintiffs notice was thus served after the expiration of the original three-year limitations period.
. In view of our conclusion we need not reach plaintiffs contention that the Braham rule was erroneously applied retrospectively in this case.
. Under the Braham rule, plaintiff would have three years plus 90 days within which to file her complaint; she filed her complaint on September 9, 1980; June 11, 1977 is exactly three years and 90 days earlier.
. We have not overlooked the principle that a District Court’s considered view as to the law of the state in which it sits is entitled to great weight. Here, however, we are confronted with a purely legal question involving the interpretation of statutes, and we are convinced that the District Court clearly erred in its interpretation of those statutes.