Metropolitan News-Enterprise


Wednesday, October 24, 2007


Page 1


Court Limits Scope of Five-Year Statute, Overturns Dismissal




A widow who successfully moved to amend her husband’s asbestos-related tort action in order to assert wrongful death claims on behalf of herself and her children should not have had those claims dismissed for failure to bring the case to trial within five years of her husband’s original filing, the First District Court of Appeal has ruled.

Div. One held Monday that Carol Brumley’s wrongful death and loss of consortium claims should not have been dismissed under Code of Civil Procedure Secs. 583.310 and 583.360. Brumley conceded on appeal that her survivorship claims should have been brought to trial within five years of the original filing and were properly dismissed.

Asbestos Suit

William Brumley’s complaint, filed in August 2000 and naming various defendants, alleged that he suffered from lung disease as a result of exposure to asbestos and asbestos-containing products. The case was scheduled for trial in June 2004 but was delayed for settlement negotiations; before a new trial date was set, Brumley was diagnosed with lung cancer and died in October 2004.

In March 2005, Carol Brumley moved to file an amended complaint, including claims for wrongful death on behalf of herself and three children as well as the loss of consortium and survivorship claims.

The case was set for trial in April 2006. In January of last year, plaintiff’s counsel moved to advance the trial date in order to avoid the bar of the five-year statute.

The defendants, opposing the motion and bringing their own motion to dismiss, argued that the time in which to bring the case to trial had already expired in August 2005, five years after William Brumley’s complaint was filed. The plaintiffs responded that the five-year period was tolled between the date of William Brumley’s death and the date that his wife was permitted to file her amended complaint.

Trial Court Ruling

San Francisco Superior Court Judge Robert Dondero sided with the defendants, saying that the five-year period expired as to all claims in August 2005 and that “plaintiffs failed to establish that it was impractical, impossible or futile to bring this case to trial within that five-year period of time.” 

Justice Sandra Margulies, writing for the Court of Appeal, said the trial judge was partially incorrect, based on Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, which interpreted a predecessor to a related statute.

The high court held in that case, which dealt with the requirement that a case be dismissed if the defendant were not served within three years, that where claims could not have been brought on the date the original complaint was filed, but were added by amendment, those claims did not relate back to the original filing and the time in which to serve the defendant ran from the date of the amendment.

The same reasoning applies to the five-year provision, Margulies wrote.

“The five-year rule, the three-year rule, and statutes of limitation all share the same fundamental purpose of ensuring that claims are brought to trial within a reasonable period of time; the three- and five-year rules operate after the complaint is filed, while statutes of limitation operate prior to filing,” the justice reasoned. “...If, as the Supreme Court directed in Barrington, the relation-back doctrine should be applied to section 583.210 for that reason, it should be applied to section 583.310 as well.”

It would be “absurd,” the justice said, to hold that the plaintiff’s claims, which would have been timely if brought as a separate action, are barred because she chose the more economical path of adding them to a suit that was already awaiting trial.

The case is Brumley v. FDCC California, Inc., 07 S.O.S. 6325.


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