Opinion
Certified for Partial Publication ]
Pursuant to rules 976 and 976.1, California Rules of Court, this opinion is certified for publication except for part II.
Assigned by the Chairperson of the Judicial Council.
Review Granted Dec. 17, 1987.
Previously published at 194 Cal.App.3d 1378
Dan Bolton, Hersch & Hersch, San Francisco, for plaintiff and appellant.
Peter W. Davis, Crosby, Heafy, Roach & May, Oakland, Gantz & Forer, Beverly Hills, Richard J. Siggins, William Ginsburg, Gudmundson, Siggins & Stone, San Francisco, Haight, Dickson, Brown & Bonesteel, Santa Monica, Lynch, Loofbourrow, Helmenstine, Gilardi & Grummer, Tarkington, O'Connor & O'Neill, San Francisco, for defendants and respondents.
HANING, Acting Presiding Justice.
Plaintiff/appellant Rebecca LeVeque appeals a summary judgment in favor of defendants/respondents Abbott Laboratories, et al. in her product liability action against them for personal injuries allegedly suffered as a consequence of her mother's use of diethylstilbestrol (DES) while pregnant with appellant. She contends the trial court erred in ruling her action barred by the statute of limitations. (Code Civ.Proc., § 340, subd. (3).) The dispositive issue is whether the filing of a class action on behalf of similarly injured women in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 tolled the running of the statute of limitations for members of the potential class, such as appellant. We conclude that it did, and reverse.
Additional respondents are E.R. Squibb & Sons, Inc., Emons Industries, Inc., Cooper Laboratories, Inc., and Boyle & Company.
I.
Appellant's complaint was filed on March 6, 1981. She alleged she was unaware of the cause of her injury until March 20, 1980, when she first learned she had been exposed in utero to DES and that her mother's use of the drug caused appellant's injuries. She further alleged that she could not with reasonable diligence have discovered these facts any earlier.
Respondents moved for summary judgment on the ground that appellant's action is barred by the one-year statute of limitations (Code Civ.Proc., § 340, subd. (3)), because she discovered more than one year prior to filing her complaint that her mother had ingested DES and that her injuries were attributable thereto. The summary judgment proceeding focused primarily on the date appellant first discovered sufficient facts to commence the running of the statute of limitations. However, we need not reach that issue if appellant filed her action during a period when the statute was tolled, and thus had not expired.
Respondents contend that appellant may not raise the tolling issue on appeal because she failed to do so in the trial court. However, when the facts are not in dispute and the issue involves a pure question of law, appellate courts may consider it. (Tyre v. Aetna Life Ins. Co. (1960) 54 Cal.2d 399, 405, 6 Cal.Rptr. 13, 353 P.2d 725; Burdett v. Rollefson Construction Co. (1959) 52 Cal.2d 720, 725-726, 344 P.2d 307.) There is no dispute concerning the relevant dates and the issue has been fully briefed and argued; we therefore consider it.
The plaintiff in Sindell filed her class action complaint on August 2, 1976, seeking to represent, among others, all women in California suffering certain injuries resulting from their mothers' use of DES during pregnancy. The Sindell trial court denied certification of the class on April 22, 1982. Appellant herein filed the instant action on March 6, 1981. She contends the statute of limitations was tolled for her from the date the Sindell complaint was filed until the Sindell trial court denied certification of the class. The authorities support her position.
The affidavits and other papers supporting the motion for summary judgment do not establish the undisputed fact that the statute of limitations had expired on appellant's cause of action prior to the commencement of the Sindell action.
The statutory basis for class actions in California is contained in Code of Civil Procedure section 382 and Civil Code section
In American Pipe and Construction Co. v. Utah (1974) 414 U.S. 538, 554, 94 S.Ct. 756, 766, 38 L.Ed.2d 713 the United States Supreme Court held that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Because American Pipe involved plaintiffs seeking to intervene in the original action, some courts construed American Pipe 's tolling rule as being applicable only to intervenors. (Cf., Stull v. Bayard (2nd Cir.1977) 561 F.2d 429; Arneil v. Ramsey (2nd Cir.1977) 550 F.2d 774.)
In Crown, Cork & Seal Co. v. Parker (1983) 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 the high court rejected the interpretation that the American Pipe tolling rule protected only intervenors. "Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action." (Id., at p. 354, 103 S.Ct. at p. 2397.)
In reliance on the foregoing authorities, we conclude that appellant's complaint was timely, having been filed during a period when the Sindell proceedings had tolled the statute of limitations. In Bangert v. Narmco Materials, Inc., supra, 163 Cal.App.3d 207, 209 Cal.Rptr. 438 another Court of Appeal applied the federal rule to intervenors. Although not deciding the issue because it was not before it, the Bangert court noted that "[l]ogically, since the statute is tolled, putative class members could file separate actions within the time remaining on the limitations statute in lieu of intervening in the original suit." (Id., at p. 212, fn. 3, 209 Cal.Rptr. 438.)
Respondents alternatively contend that appellant falls outside the Sindell class because the relief sought by the filing plaintiff in Sindell (damages) differed from that sought for the class (medical examination and treatment). A similar argument was rejected in Daar v. Yellow Cab. Co., supra, 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732. "Nor is a common recovery required in order to establish a community of interest." (Id., at p. 707, 63 Cal.Rptr. 724, 433 P.2d 732.) "As a practical matter, a requirement of common relief has no compelling importance and its absence presents no insuperable difficulties." (Id., at p. 709, 63 Cal.Rptr. 724, 433 P.2d 732.) Daar noted that federal rule 23 had been revised to eliminate the requirement of common relief in establishing a class. This is consistent with the rule that "[t]he subject matter of an action and the issues involved are determinable from the facts alleged rather than from the title of the pleading or the character of damage recovery suggested in connection with the prayer for relief." (Buxbom v. Smith (1944) 23 Cal.2d 535, 542, 145 P.2d 305.)
See footnote *, ante.
CONCLUSION
The judgment is reversed and the matter remanded for further proceedings not inconsistent with this decision.
KLINE, P.J. * , and KING, J., concur.