Bartalo v. Superior Court

• Decision Date: 19 September 1975
• Citation: 51 Cal.App.3d 526,124 Cal.Rptr. 370
• Court: California Court of Appeals Court of Appeals
• Parties: Robert D. BARTALO, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent; Irene ROSMAN and Eugene Rosman, Real Parties in Interest. Civ. 46156.

Page 370

124 Cal.Rptr. 370

51 Cal.App.3d 526

Robert D. BARTALO, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent Irene ROSMAN and Eugene Rosman, Real Parties in Interest.

Civ. 46156.

Court of Appeal, Second District, Division 5, California.

Sept. 19, 1975.

[51 Cal.App.3d 527] Gilbert, Kelly, Crowley & Jennett, Los Angeles, and John Keiser, Altadena, for petitioner.

HASTINGS, Associate Justice

This petition for writ of mandate states that petitioner Robert D. Bartalo (Bartalo) is a defendant in a personal injury case arising out of an automobile accident which occurred on June 15, 1973. Irene Rosman (wife), who was injured in the accident, filed her lawsuit against Bartalo on June 29, 1973. She was the only named plaintiff. On August 21, 1974, Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, was decided. It established for the first time in California that the spouse of an injured person in a tort action has a right of recovery for loss of consortium. In December of 1974, wife and her husband Eugene Rosman (husband) noticed a motion for an order permitting them to file an amended complaint naming husband as an additional plaintiff and adding a second cause of action for loss of consortium. Their motion was granted. Bartalo demurred to the second cause of action of the amended complaint on the ground that it was barred by the statute of limitations (one year from date of the accident). The demurrer was overruled and the instant petition followed. We issued an alternative writ of mandate.

ARGUMENT

Bartalo contends that Rodriguez addressed and the statute of limitations where the court states on page 408, 115 Cal.Rptr. on p. 782, 525 P.2d on p. 686 the following: 'The solution of the majority of the other courts, which we adopt, is simply to declare that for reasons of fairness and sound administration a spouse will not be permitted to initiate an action for loss of consortium--even though not barred by the statute of limitations--when the action of the other spouse for the negligent or intentional injury giving rise to such loss was concluded by settlement or judgment prior to the effective date of this decision. (Citations.) ³⁰

(Footnote 30 states:) 'It is probable that few if any such claims exist in any event, as serious injury cases are rarely settled or brought to judgment within one year after the occurrence of the injury, the governing period of limitations (Code Civ.Proc., § 340, subd. 3). With the exception of such cases, all claims for loss of consortium not barred by the statute of limitations may now be asserted: for the reasons persuasively stated in Fitzgerald v. Meissner & Hicks, Inc. (1968) Supra, 38 Wis.2d 571, 157 N.W.2d 595, 598--599, our decision herein is to be given normal retroactive effect within the limits of the statute of limitations.'

Husband first became a plaintiff in the amended complaint which was filed more than one year after the accident. Bartalo argues that the statute of limitations had run and that Rodriguez, per its statement, Supra, had foreclosed husband's cause of action. Husband argues as follows: (1) That civil actions can only be commenced within the statutory period after the cause of action shall have accrued (Code Civ.Proc., § 312) and, until the Supreme Court decided the Rodriguez case, he had no cause of action for loss of consortium, therefore the statute of limitation on his cause of action began to run on the filing of Rodriguez; and (2) his wife's complaint can be amended to add him as a party plaintiff; and that an amended complaint relates back to the original complaint when it seeks recovery on the same general facts, and the statute of limitations on His cause of action was thereby tolled by the filing of his wife's original complaint. (Austin v. Massachusetts Bonding & Insurance Co., 56 Cal.2d 596, 600--601, 15 Cal.Rptr. 817, 364 P.2d 681; Eichler Homes of San Mateo, Inc. v. Superior Court, 55 Cal.2d 845, 847, 13 Cal.Rptr. 194, 361 P.2d 914; Wennerholm v. Stanford Univ. Sch. of Med., 20 Cal.2d 713, 717--718, 128 P.2d 522.)

For several reasons we conclude that husband's argument is without merit. The first reason is not court's intent in Rodriguez to limit filings for loss of consortium only to those persons whose cause of action arose within one year prior to the filing of its opinion. For example, it does not permit an action to be initiated Even though not barred by the statute of limitation when the action of the other spouse was determined by judgment or settlement prior to the effective date of Rodriguez. It states that probably few, if any, such claims exist because serious injury cases are rarely settled or brought to judgment Within one year after the occurrence of the injury; therefore, with the exception of such cases, all claims not barred by the statute of limitations may now be asserted. This language is very persuasive that the Supreme Court was permitting retroactivity only to those causes of action that arose one year or less prior to the filing date of Robriguez. Further, there is still another portion of the court's statement that compels this interpretation. ¹ The court says: 'for the reasons persuasively stated in Fitzgerald v. Meissner & Hicks, Inc., . . . our decision herein is to be given normal retroactive effect within the limits of the statute of limitation.' The Fitzgerald court did, in passing, consider the problem before us. There a wife sought to bring an action for loss of consortium after the Wisconsin court in Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 150 N.W.2d 137, had given its blessing to her cause of action. The record before the Fitzgerald court did not disclose whether her husband, who was the injured party, had filed a lawsuit. The wife had filed before the statute of limitation had outlawed her cause of action. The court addressed itself on the question of joinder of the two causes of action. It said, 157 N.W.2d at page 599: 'If he (husband) has not commenced an action and is desirous of doing so, the complaint may be amended and he may join as a party plaintiff to state his cause of action. (In this instance it appears that the statute of limitations would be a defense to his claim at this date.)' (Emphasis added.) Wisconsin follows the California rule that an amended complaint will take effect on the date of the filing of the original complaint to bar an intervening statute of limitation where the identity of the cause of action remains essentially the same. Apparently, from the comment above, the Wisconsin Supreme Court would not permit a spouse to add his or her complaint for loss of consortium to the other spouse's tort action if the statute of limitation has run.

The Rodriguez court also was cognizant of the amendment problem. In footnote 29, 12 Cal.3d page 407, 115 Cal.Rptr. 765, p. 782, 525 P.2d 669, p. 686, the court said: 'In the case at bar, for example, Richard Rodriguez originally filed a complaint for his damages alone. Subsequently, But within the statute of limitations, he and Mary Anne filed an amended complaint joining their causes of action . . ..'

The second reason for denying husband's joinder in wife's complaint is that California decisional law would deny husband the right to bring his cause of action after the statute of limitation has expired. In Monroe v. Trustees of the California State Colleges, 6 Cal.3d 399, 99 Cal.Rptr. 129, 491 P.2d 1105, a college professor was discharged for failure to sign a required oath. The statute calling for the oath was held constitutional by the Supreme Court in 1952. (Pockman v. Leonard, 39 Cal.2d 676, 249 P.2d 267). In 1967 the Supreme Court overruled Pockman. (Vogel v. County of Los Angeles, 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961.) The professor then applied for and was refused reinstatement. He brought an action seeking both money damages for all of the past years and reinstatement. The court stated 6 Cal.3d at pages 406--407, 99 Cal.Rptr. at p. 133, 491 P.2d at p. 1109: 'The normal 'retroactivity' of most civil decisions has never been thought to supersede the operation of the statute of limitations so as to revive old claims which were not pursued because of a previously prevailing contrary rule of law, (fn. omitted) or to reincarnate dead causes which had fallen to the sword of the statute. Instead, the retroactive application of a judicial decision has traditionally meant only that the rule of law established by the new decision governs events occurring prior to the date of decision, When such events are at issue in timely filed actions. For example, although this court's decision in Muskopf v. Corning Hospital District (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, abrogating a general governmental immunity to tort claims, was given normal retroactive effect, we recognized that litigants who suffered injury at the hands of the government prior to Muskopf would be barred from recovery unless their suits had been 'filed within the ordinary limitations period provided for tort actions. '' (Emphasis in original.)

A footnote in Monroe stated: 'In addition to relying on the retroactivity of Vogel, petitioner alternatively contends that the statute of limitations did not begin to run on his claim for wrongful discharge until 1968 because until that date it was allegedly 'impossible' for petitioner to attack the State Personnel Board's decision. No legal obstacle barred a judicial challenge to petitioner's initial discharge, however, and the mere existence of a contrary precedent has never been considered sufficient to toll the running of the statute of limitations.' (Id. 6 Cal.3d at p. 408, 99 Cal.Rptr. at p. 134, 491 P.2d at p. 1109, fn. 5.)

In Lopa v. Superior Court, 46 Cal.App.3d 382, 120 Cal.Rptr. 445, the court was dealing with the rights of an automobile passenger (through a guardian ad litem, Lopa, Sr.) to...