Aguilera v. Heiman

• Decision Date: 29 May 2009
• Docket Number: No. B206790.,B206790.
• Citation: 174 Cal.App.4th 590,95 Cal. Rptr. 3d 18
• Court: California Court of Appeals
• Parties: FREDDY AGUILERA, Plaintiff and Appellant, v. ROBERT P. HEIMAN et al., Defendants and Respondents.

174 Cal.App.4th 590

95 Cal. Rptr. 3d 18

FREDDY AGUILERA, Plaintiff and Appellant, v. ROBERT P. HEIMAN et al., Defendants and Respondents.

No. B206790.

Court of Appeals of California, Second District, Division Eight.

May 29, 2009.

Zukor and Nelson, Abram Charles Zukor and Marilyn H. Nelson for Plaintiff and Appellant.

Law Offices of Bradford L. Treusch and Bradford L. Treusch for Defendant and Respondent Robert P. Heiman.

Kulik, Gottesman, Mouton & Siegel, Donald S. Gottesman and David A. Bernardoni for Defendant and Respondent 2612 Montana Avenue Owners Association.

OPINION

FLIER, J.—

Freddy Aguilera was injured on November 5, 1997. On April 16, 2007, almost 10 years later, Aguilera filed this civil action against respondents Robert P. Heiman, individually and doing business as Pegasus Properties (Heiman), and 2612 Montana Avenue Owners Association (Association). Respondents demurred to an amended complaint on the basis that Aguilera's action for personal injuries was barred by the statute of limitations. Aguilera contended that the statute of limitations was tolled by his timely filing of a claim for workers' compensation benefits against his unlicensed and uninsured employer, Mark Hruby, doing business as Rube's Rain Gutter Service (Hruby), and the Uninsured Employers Benefits Trust Fund (UEF). The trial court sustained the demurrer without leave to amend. Aguilera appeals from the resulting dismissal of his action. We affirm.

We hold the claim is barred by the one-year statute of limitations under Code of Civil Procedure former section 340, subdivision (3) and the equitable tolling doctrine did not apply to extend appellant's time to file an action against respondents. Further, the trial court did not abuse its discretion in sustaining the demurrers without leave to amend.

FACTS AND PROCEDURAL HISTORY¹

The basic facts for purposes of this appeal are not in dispute. Aguilera was injured on November 5, 1997, when he came into contact with a high voltage electrical wire while installing rain gutters on a condominium in Santa Monica, California.

Well within one year after the incident, on January 26, 1998, Aguilera filed an application to receive workers' compensation benefits, naming his employer Hruby and UEF as defendants. On June 16, 1999, more than one and a half years after Aguilera's injury, and again on June 3, 2002, more than three and a half years after such injury, the workers' compensation judge ordered Heiman joined as a defendant to the workers' compensation proceeding. After that, apparently on August 12, 1999, Aguilera added respondent Association (incorrectly identified as "Montana Villas Homeowners Association") as a party defendant to his workers' compensation proceeding.² The workers' compensation matter proceeded to an award finding Hruby to be Aguilera's employer and liable for workers' compensation, including a 90 percent permanent disability rating. The Workers' Compensation Appeals Board granted reconsideration and determined that, because he did not possess a valid contractor's license, Hruby was not Aguilera's employer for workers' compensation purposes and that Heiman was the employer for such purposes as a professional property management business and as agent for the homeowners' association.

Upon Heiman's petition for a writ of review of the board's decision, Division Three of this court held that, in addition to Hruby, respondents Heiman and the Association were also liable under the workers' compensation statutes. (Heiman v. Workers' Comp. Appeals Bd. (2007) 149 Cal.App.4th 724 [57 Cal.Rptr.3d 56].) Division Three held that Heiman had joint and several liability as an employer for workers' compensation purposes because he had hired an unlicensed and uninsured contractor, and the Association was liable as Heiman's principal. (Id. at pp. 738, 743-744.) The court further held, however, that the individual condominium owners were not liable for such benefits. (Id. at pp. 744-745.)

Aguilera then filed the present civil action for negligence against respondents and individual homeowners on April 16, 2007, almost 10 years after his injury.

Respondents demurred on grounds including the statute of limitations. The trial court ultimately sustained the demurrers without leave to amend. The trial court ruled that the applicable personal injury limitations period at the time of Aguilera's injury was one year. (Code Civ. Proc., former § 340, subd. (3).) The court further ruled that the doctrine of equitable tolling under Elkins v. Derby (1974) 12 Cal.3d 410 [115 Cal.Rptr. 641, 525 P.2d 81] did not apply to extend the statute of limitations.

The trial court entered a judgment dismissing the action, and Aguilera timely appealed.

STANDARD OF REVIEW

Aguilera incorrectly asserts that in reviewing the sustaining of demurrers this court examines the trial court's action for an abuse of discretion. Respondents, however, correctly state that this court applies two separate standards of review on appeal from a judgment of dismissal after a demurrer is sustained without leave to amend. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) We first review the complaint de novo to determine whether the complaint alleges facts sufficient to state a cause of action under any legal theory or to determine whether the trial court erroneously sustained the demurrer as a matter of law. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879 [6 Cal.Rptr.2d 151].) Second, we determine whether the trial court abused its discretion by sustaining the demurrer without leave to amend. (Ibid.) Under both standards, appellant has the burden of demonstrating that the trial court erred. (Ibid.) An abuse of discretion is established when "there is a reasonable possibility the plaintiff could cure the defect with an amendment." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [6 Cal.Rptr.3d 457, 79 P.3d 569].)

CONTENTIONS

Aguilera asserts his action is not barred by the statute of limitations because it was equitably tolled while he was pursuing his workers' compensation remedy. He further asserts the principles of equitable estoppel should apply because it was respondents who prolonged the resolution of the workers' compensation case and respondents claim no prejudice due to the delay in filing the civil case.

Respondents contend the complaint as amended reveals on its face that the action is barred by the one-year statute of limitations then in effect for his personal injury claim and equitable tolling does not apply because the action was already time-barred when respondents were joined as parties to the workers' compensation proceeding.³ Respondents also contend that the amended complaint fails to state any claim that might be subject to the three-year statute of limitations, and there is no reasonable probability that Aguilera could cure the pleading's defect by amendment. Heiman further contends Aguilera's complaint was not properly before the trial court because Aguilera failed to allege the required jurisdictional fact that respondents were uninsured and thus subject to an action at law for damages.

DISCUSSION

1. Aguilera's Claim Is Barred by the One-year Statute of Limitations

(1) When Aguilera was injured on November 5, 1997, Code of Civil Procedure former section 340, subdivision (3) provided a one-year statute of limitations for personal injury actions. On January 1, 2003, new Code of Civil Procedure section 335.1 took effect and extended the statute of limitations for personal injury suits to two years. The new two-year statute of limitations for personal injuries, however, was not retroactive. (Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1028-1029 [9 Cal.Rptr.3d 767]; see Mojica v. 4311 Wilshire, LLC (2005) 131 Cal.App.4th 1069, 1073 [31 Cal.Rptr.3d 887].) (2) Statutes generally operate only prospectively, and "[a] new statute that enlarges a statutory limitations period [only] applies to actions that are not already barred by the original limitations period at the time the new statute goes into effect." (Andonagui v. May Dept. Stores Co. (2005) 128 Cal.App.4th 435, 440 [27 Cal.Rptr.3d 145].) To revive an expired claim, a new statute of limitations must be made expressly retroactive by the Legislature, and the Legislature made no such provision in enacting Code of Civil Procedure section 335.1. (Andonagui, at p. 440; see also Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 378-379 [5 Cal.Rptr.3d 116] ["where the application of a new or amended statute of limitations would have the effect of reviving an already time-barred claim, the general rule against retroactive application of the statute is applicable in the absence of a clear indication of legislative intent to the contrary"].) "The reason for this rule is a judicial perception of unfairness in reviving a cause after the prospective defendant has assumed its expiration and has conducted his affairs accordingly." (Gallo v. Superior Court (1988) 200 Cal.App.3d 1375, 1378 [246 Cal.Rptr. 587]; see also Douglas Aircraft Co. v. Cranston (1962) 58 Cal.2d 462, 465 [24 Cal.Rptr. 851, 374 P.2d 819] ["These rules afford warning to potential defendants that until the statute of limitations has run it may be extended, whereas after it has run, they may rely upon it in conducting their affairs."].)

In Krupnick v. Duke Energy Morro Bay, supra, 115 Cal.App.4th 1026, the plaintiff alleged he sustained injuries on January 26, 2001. He filed his action on January 8, 2003. (Id. at p. 1027.) Under the one-year statute of limitations that applied on the date he was injured, he had only until January 26, 2002, to file his complaint. (Id. at p. 1028.) The court held Code of Civil Procedure section 335.1 did not apply to save the plaintiff's action from the running of the statute of limitations, because his claim was already time-barred when the new two-year statute became effective on January 1, 2003, and the...