Andersen v. Barton Memorial Hospital, Inc.

• Decision Date: 08 April 1985
• Citation: 212 Cal.Rptr. 626,166 Cal.App.3d 678
• Court: California Court of Appeals Court of Appeals
• Parties: Arne ANDERSEN et al., Plaintiff, v. BARTON MEMORIAL HOSPITAL, INC., and Frank M. Hembrow, M.D., Defendants, Defendants in Intervention and Respondents, Cindy Lee Burris, Intervenor and Appellant. Civ. 24297.

Page 626

212 Cal.Rptr. 626

166 Cal.App.3d 678

Arne ANDERSEN et al., Plaintiff, v. BARTON MEMORIAL HOSPITAL, INC., and Frank M. Hembrow, M.D., Defendants, Defendants in Intervention and Respondents Cindy Lee Burris, Intervenor and Appellant.

Civ. 24297.

Court of Appeal, Third District, California.

April 8, 1985.

Wilcoxen & Callahan and Gary H. Gale, Sacramento, for intervenor and appellant.

Kroloff, Belcher, Smart, Perry & Christopherson, Thomas O. Perry, Stockton, and Harry A. Allen, Santa Rosa, for defendant in intervention and respondent Barton Memorial Hospital.

Weintraub, Genshlea, Hardy, Erich & Brown and Denise J. Fischer, Sacramento, for defendant in intervention and respondent Frank M. Hembrow, M.D. SIMS, Associate Justice.

The issue here is whether an alleged heir whose cause of action for wrongful death (Code Civ.Proc., § 377) ¹ is barred by the statute of limitations ( § 340.5) may nonetheless participate in a wrongful death action, timely filed by other heirs of the deceased, by way of a complaint in intervention. We conclude the statute of limitations bars the cause of action asserted by the intervenor.

FACTUAL AND PROCEDURAL BACKGROUND

Delores Andersen died on August 17, 1980. Her death was allegedly due to the negligent care and medical malpractice of defendants Frank Hembrow, M.D., and Barton Memorial Hospital. Delores' husband Arne and her children Deanna and David (plaintiffs) timely filed a wrongful death action on August 10, 1981.

On December 18, 1981, the action was dismissed with prejudice as to Hembrow after approval of a minor's compromise settlement.

On March 14, 1984, more than three years after Delores' death, Cindy Burris (intervenor) filed an "Ex Parte Motion For Order For Leave to Intervene." Burris alleged she was the natural child ² of Delores and thus sought to join in the wrongful death action filed by plaintiffs. Burris' proposed complaint named both Hembrow and Barton Memorial Hospital as defendants in intervention. On March 14, 1984, the trial court entered an order granting Burris' ex parte motion to intervene.

Both defendants demurred to the complaint in intervention on the grounds it was barred by the statute of limitations set forth in section 340.5. The trial court agreed and sustained a demurrer without leave to amend; judgments of dismissal were entered as to both defendants. Burris appeals.

DISCUSSION

Intervenor Burris properly concedes that her complaint, if brought as an original action, would be barred by the three-year statute of limitations in section 340.5. ³ However she asserts her complaint in intervention is not barred because it should relate back to the time of filing of plaintiffs' complaint for wrongful death. We disagree.

Our starting point is Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 36 Cal.Rptr. 321, 388 P.2d 353. There, decedent was killed in 1956, leaving a widow and three minor children. (P. 691, 36 Cal.Rptr. 321, 388 P.2d 353.) Nearly six years later, without having filed her own action, the widow, as guardian ad litem, brought a wrongful death action on behalf of the minor children. (P. 692, 36 Cal.Rptr. 321, 388 P.2d 353.) The applicable statutes of limitation barred any action by the widow but, because of tolling, did not bar an action by the children. (P. 692, 36 Cal.Rptr. 321, 388 P.2d 353.) The trial court sustained a demurrer without leave to amend apparently concluding the widow and children had a single or "joint" cause of action, so that if the widow's claim was barred, so too was the children's. (Pp. 691-692, 36 Cal.Rptr. 321, 388 P.2d 353.) The Supreme Court reversed, construing section 377 ⁴ as Cross stands clearly for the proposition that, whereas the claims of all heirs must be determined in a single wrongful death action (id., at p. 694, 36 Cal.Rptr. 321, 388 P.2d 353), each heir has a personal and separate cause of action against which the applicable statute of limitations will run. ⁵

"a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action.... [Citations.] [p] Although recovery under section 377 is in the form of a 'lump sum,' the amount is determined in accordance with the various heirs' separate interests in the deceased's life and the loss suffered by each by reason of the death, and no recovery can be had by an heir who did not sustain a loss. [Citation.] [p] Accordingly, each heir should be regarded as having a personal and separate cause of action.... [p] The running of the statute of limitations against adult heirs, therefore, does not affect the rights of minor plaintiffs in a wrongful death action." (Cross v. Pacific Gas & Elec. Co., supra, 60 Cal.2d at pp. 692-693, 36 Cal.Rptr. 321, 388 P.2d 353, emphasis added.)

One of Cross's progeny, Washington v. Nelson, supra, 100 Cal.App.3d 47, 160 Cal.Rptr. 644, is nearly on point. In Washington, an action for wrongful death based on medical malpractice was timely commenced by the widow of the decedent. More than three years after the date of death, the widow successfully moved for leave to file a first amended complaint naming a minor as an additional heir and plaintiff. Subsequently, the trial court dismissed the action as to the minor pursuant to the provisions of section 581a, subdivision (a), which required dismissal unless the summons on the complaint was served and return made within three years after commencement of the action. (Id., at pp. 49-50, 160 Cal.Rptr. 644.) On appeal, the Washington court held the trial court Intervenor attempts to distinguish Washington on the ground the appellant in Washington did not file a complaint in intervention but rather attempted to join as a plaintiff by amendment of the original complaint after the statute of limitations had run. Intervenor asserts complaints in intervention are given special consideration. In the circumstances here, the argument is unavailing.

                erred in dismissing the action pursuant to the provisions of section 581a.  (Id., at p. 51, 160 Cal.Rptr. 644.)   Nonetheless, the judgment was affirmed in light of the determination the minor's wrongful death action was barred by the statute of limitations.  Citing Cross, the Washington court concluded, "Since the claim of each heir is a personal and separate cause of action, the filing by the widow should not stop the running of the statute of limitations as to [the minor], nor conversely would the running of the statute as to [the minor] affect the widow's claim."  (Id., p. 52, 160 Cal.Rptr. 644.)
                

"A complaint in intervention, like any other complaint, is subject to an affirmative defense based on an applicable statute of limitations and, if it asserts a new cause of action, the application for leave to intervene must be filed within the pertinent limitations period." (2 Cal.Civil Procedure Before Trial (Cont.Ed.Bar 1978) § 25.37, p. 128; Tubbs v. Delillo (1912) 19 Cal.App. 612, 621, 127 P. 514; see Mars v. McKay (1859) 14 Cal. 127, 129; Graham v. Cal. Drilling etc. Co. (1942) 49 Cal.App.2d 522, 526, 122 P.2d 88; A.E. Bell Corp. v. Bell View Oil Synd. (1938) 24 Cal.App.2d 587, 614, 76 P.2d 167.)

Intervenor contends her complaint in intervention is not subject to this general rule but is saved by Voyce v. Superior Court (1942) 20 Cal.2d 479, 127 P.2d 536. ⁶ There the court permitted a statutory heir to intervene in a pending (and timely filed) will contest although the statutory time permitted for the initiation of such a contest had run. (P. 485, 127 P.2d 536.) Characterizing the will contest as "in the nature of a proceeding in rem " (p. 483, 127 P.2d 536), the court pointed out that a successful will contest "has the effect of invalidating the will in toto and as to everyone interested therein, regardless of whether they actively participated in the contest. [Citations.]" (Ibid.) The court emphasized that since the relief sought by the intervenor was identical to the relief sought by the plaintiffs in the pending action (the invalidation of the will), no new issues were tendered by the intervention: "In the case at bar no new issues, that is, grounds of contest have been raised, and no prejudice has been suffered by petitioners. The case is not like Tubbs v. Delillo, 19 Cal.App. 612 , or Mars v. McKay, 14 Cal. 127, where the court was considering in an action for the foreclosure a mechanic's lien, the addition of parties with mechanic's liens on the same property. There each lien holder's right was dependent upon his personal lien, and the addition of other parties, each with his independent lien, would require the pleading of new causes of action, as new and distinct issues would be raised. In the case at bar no new issues are raised, the issues are identical, that is, the validity of the will with reference to the specified grounds of attack. It is not the purpose of the contest to determine heirship, or the rights as between the contestants to the assets of the estate, but the validity of the will is the only issue." (Id., 20 Cal.2d at pp. 487-488, 127 P.2d 536, emphasis added.)

Voyce does nothing to compromise an important purpose of any statute of limitations, which is to provide timely notice so that a defendant will not have to defend against stale claims. (See Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 787, 157 Cal.Rptr. 392, 598 P.2d 45.) In Voyce, defendants were put on notice of all claims and issues when the original complaint was timely filed; the intervention tendered no new claims or issues that would require defendants to initiate an investigation beyond the period of the statute of limitations.

By way of contrast, the complaint in intervention in the instant case tenders significant new issues. Indeed, the complaint in intervention perforce tenders the threshold issue whether intervenor is, in fact, the natural child of decedent and therefore an heir entitled to share in any recovery, as she claims. Moreover, as we have noted, a recovery under section...