Opinion
B164110.
11-25-2003
EDMUND PETERSON, Plaintiff and Appellant, v. STEELE COMPANY, Defendant and Respondent.
Law Office of Michael F. Sisson and Michael F. Sisson for Plaintiff and Appellant. Soltman, Levitt & Flaherty and Mitchell S. Brachman for Defendant and Respondent.
INTRODUCTION
Plaintiff Edmund Peterson appeals from an order of dismissal entered following the sustaining without leave to amend of a demurrer by defendant Steele Company. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On August 17, 2000, plaintiff was working at his desk at his place of employment. Defendants employees were working on improvements on the other side of the wall behind plaintiffs desk. They negligently caused a heavy picture on plaintiffs side of the wall to come loose. It fell on him, injuring him.
Plaintiffs employer, Quantum Enterprises (Quantum), had workers compensation insurance with Redland Insurance Company (Redland). Quantum made a claim against Redland for workers compensation payments for plaintiff. Redland made workers compensation payments to plaintiff for his medical bills. Redland then filed a complaint for recovery of workers compensation benefits against defendant on August 17, 2001.
On February 25, 2002, plaintiff filed a complaint for damages for negligence against defendant. On March 20, 2002, he filed notice of related case, notifying the court in his case of Redlands action against defendant. On April 18, 2002, this case was reassigned to the department where Redlands action was pending. The court consolidated the two cases on May 28, 2002.
Defendant filed a demurrer to plaintiffs complaint on July 17, 2002. The ground for the demurrer was that the action was barred by the one-year statute of limitations. (Former Code Civ. Proc., § 340, subd. 3.) Plaintiff opposed the demurrer on July 31, 2002 on the ground the one-year statute of limitations was tolled here due to the pendency of Redlands action against defendant.
On August 1, 2002, Redland obtained a dismissal with prejudice of its action against defendant following a settlement between the two. On August 12, plaintiff filed a supplemental brief on the validity of Redlands dismissal of its action against defendant and the effect of the dismissal on his claim the statute of limitations was tolled. On August 21, the trial court sustained defendants demurrer without leave to amend.
On September 9, 2002, plaintiff moved to set aside Redlands dismissal of its action against defendant on the grounds settlement of that action was barred by Labor Code section 3859 and setting aside the dismissal was justified under Code of Civil Procedure section 473 based on surprise, inadvertence and excusable neglect. Plaintiff further requested that he be allowed to file a complaint in intervention in Redlands action. On September 30, the trial court denied the motion.
CONTENTIONS
Plaintiff contends the trial court erred in sustaining defendants demurrer based on the statute of limitations. The trial court did not err.
Plaintiff further contends the trial court erred in refusing to set aside Redlands dismissal of its action against defendant. There was no error.
Finally, plaintiff asserts the trial court abused its discretion in denying him relief under Code of Civil Procedure section 473 and thereby precluding him from filing a complaint in intervention. The trial court did not abuse its discretion.
DISCUSSION
Statute of Limitations
On appeal from an order of dismissal following the sustaining of defendants demurrer without leave to amend, we review the trial courts sustaining of the demurrer de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.) Plaintiff bears the burden of proving the trial court erred in sustaining the demurrer. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459; Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020.) The court properly sustains a demurrer based on the expiration of the statute of limitations. (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 802; Zapata v. Meyers (1974) 41 Cal.App.3d 268, 272.)
The limitations period for a personal injury action is one year. (Former Code Civ. Proc., § 340, subd. 3.) Plaintiff was injured on August 17, 2000. He filed his complaint on February 25, 2002. Clearly, at that point, the limitations period had expired.
Plaintiff claims, however, the limitations period was tolled during the period that Redlands action was pending against defendant. This claim is based on Labor Code section 3853 (section 3853), which provides: "If either the employee or the employer brings an action against such third person, he shall forthwith give to the other a copy of the complaint by personal service or certified mail. Proof of such service shall be filed in such action. If the action is brought by either the employer or employee, the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently."
The purpose of section 3853 is "to insure, first, that, regardless of whether it is the employee or the employer who sues the third party, both the employee and the employer recover their due, and, second, that, as far as possible, the third party need defend only one lawsuit." (County of San Diego v. Sanfax Corp. (1977) 19 Cal.3d 862, 872.) It "guarantee[s] an employee and an employer notice of each others action, authorize[s] the employee and the employer to intervene in each others lawsuit, . . . [and] provide[s] for mandatory consolidation of separate employee and employer actions . . . ." (Ibid.)
Section 3853 does not contain any tolling provisions. County of San Diego v. Sanfax Corp., supra, 19 Cal.3d 862 makes it clear that section 3853 does not affect the substantive or procedural law applicable to either the employees action or the employers action against the third party. It does nothing more than require notice, authorize intervention and/or require consolidation.
In County of San Diego, the employer sought unsuccessfully to avoid the application of the one-year limitations period. In response to an argument that it would be unfair to require the employer to file an action within one year of the employees injury, the Supreme Court noted that "so long as the employee files suit against the third party, the employer need not fear the statute of limitations, since an employer can intervene in an employee action, even after the statute of limitations has run." (County of San Diego v. Sanfax Corp., supra, 19 Cal.3d at pp. 884-886.) Since the employer in County of San Diego did not intervene in the employees action prior to its settlement but instead filed its own action, after the expiration of the one-year limitations period, the trial court properly sustained the third partys demurrer based on the expiration of the limitations period and dismissed the employers action. (Id. at pp. 885-886 and fn. 11.)
The instant case in indistinguishable from County of San Diego. Inasmuch as plaintiff did not intervene in Redlands lawsuit against defendant but instead filed his own action after the expiration of the one-year limitations period, the trial court properly sustained defendants demurrer based on the expiration of the limitations period and dismissed plaintiffs action. (County of San Diego v. Sanfax Corp., supra, 19 Cal.3d at pp. 885-886.)
The Supreme Court in County of San Diego noted that "[s]ubstantively, as well as procedurally, employer and employee actions are interchangeable: regardless of who brings an action, it is essentially the same lawsuit." (County of San Diego v. Sanfax Corp., supra, 19 Cal.3d at p. 874.) Plaintiff argues that because the two lawsuits are essentially the same, so long as one is filed within the limitations period, there is no problem if the two are later consolidated. There is no distinction between intervention, which is permitted after the expiration of the limitations period, and consolidation.
County of San Diego makes it clear that plaintiffs argument, though appealing, is without merit. Where two individual lawsuits are filed, the statute of limitations applies to each. The way to avoid the statute of limitations is intervention. (County of San Diego v. Sanfax Corp., supra, 19 Cal.3d at pp. 885-886.) Plaintiff did not do this. His independent action thus was barred by the statute of limitations. (Ibid .)
Refusal to Set Aside Redlands Dismissal of its Action Against Defendant
Labor Code section 3859, subdivision (a) (section 3859(a)), provides in pertinent part: "No release or settlement of any claim under this chapter as to either the employee or the employer is valid without the written consent of both." Plaintiff argues that since he did not consent to Redlands settlement and dismissal of its action against defendant, the trial court should have set aside the dismissal.
In refusing to set aside the dismissal, the trial court relied on Quinn v. Warnes (1983) 144 Cal.App.3d 309, 317, which held that a settlement between the defendant and the employers insurer was valid notwithstanding the plaintiffs lack of consent. In so holding, the court noted that "[p]laintiff was in no way adversely affected by that settlement." (Ibid .) Plaintiff argues that the holding of Quinn should not apply here, in that he was adversely affected by the Redlands settlement and dismissal of its action against defendant.
In fact, plaintiff was adversely affected by his own failure to file a complaint against defendant in a timely fashion or to intervene in Redlands action while he had the opportunity to do so. Plaintiffs own failings to do not preclude application of the rule of Quinn.
Denial of Relief Under Code of Civil Procedure Section 473
Code of Civil Procedure section 473, subdivision (b) (section 473), provides that "[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." A motion for relief from judgment under this section lies within the sound discretion of the trial court. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) This discretion "must be `"exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." [Citations.]" (Ibid.) Before relief may be granted, however, the party seeking relief must demonstrate that the judgment was taken against him or her through mistake, inadvertence, surprise or excusable neglect. (See id. at p. 234.)
While relief may be granted for an attorneys excusable mistake as to the law, it need not be granted for an attorneys unreasonable ignorance of the law. (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 161, p. 663.) "`The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of the lack of determination of the correct law. . . . Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief." (Ibid., quoting from A & S Air Conditioning v. John J. Moore Co. (1960) 184 Cal.App.2d 617, 620.) "The controlling factors in determining whether a mistake is excusable are: (1) the reasonableness of the misconception; and (2) the justifiability of the failure to determine the correct law." (Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136.)
In requesting relief under section 473, plaintiffs counsel explained that he had researched the issue and concluded that either consolidation or intervention would toll the statute of limitations. He disagreed with the trial courts ruling that consolidation did not toll the one-year statute of limitations, but "if the court is correct, I made a grievous error in choosing consolidation over intervention."
As discussed above, County of San Diego makes it clear that where two individual lawsuits are filed, the statute of limitations applies to each. The only way to avoid the statute of limitations is intervention. (County of San Diego v. Sanfax Corp., supra, 19 Cal.3d at pp. 885-886.) This case was decided by the Supreme Court long before plaintiff filed the instant action, and plaintiffs counsel was aware of the opinion, having cited it in plaintiffs motion to set aside the dismissal of Redlands action against defendant.
In addition, as the trial court noted, when defendant filed its demurrer based on the expiration of the limitation period, Redlands action against defendant still was pending. Plaintiff could have intervened in the Redland action and resolved the whole matter. Plaintiffs counsel did not elect this action but insisted on opposing the demurrer.
Under the circumstances, the trial court did not abuse its discretion in denying plaintiff relief under section 473. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233.) Plaintiffs counsels failure to make a thorough investigation of the law and failure to take advantage of an opportunity to correct his erroneous filing of a time-barred complaint do not constitute excusable mistake. (Miller v. City of Hermosa Beach, supra, 13 Cal.App.4th at p. 1136; 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 161, p. 663.)
The judgment is affirmed.
We concur: ORTEGA, J. and VOGEL (MIRIAM A.), J. --------------- Notes: The signed order of dismissal is appealable. (Code Civ. Proc., § 904.1; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695; Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342.)