Lewis v. Superior Court

• Decision Date: 06 December 1985
• Citation: 220 Cal.Rptr. 594,175 Cal.App.3d 366
• Court: California Court of Appeals Court of Appeals
• Parties: Linda L. LEWIS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, Andre PERRET, Real Party in Interest. B015180.

Page 594

220 Cal.Rptr. 594

175 Cal.App.3d 366

Linda L. LEWIS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Andre PERRET, Real Party in Interest.

B015180.

Court of Appeal, Second District, Division 4, California.

Dec. 6, 1985.

Bartlett & West, and Michael J. Bartlett, Santa Ana, for petitioner.

No appearance for respondent.

Spray, Gould & Bowers, Richard C. Turner, and George M. Wallace, Los Angeles, for real party in interest.

WOODS, Presiding Justice.

This proceeding in mandate requires determination of whether a statute of limitations controlling commencement of actions may be tolled under certain circumstances where an unforeseeable accident renders it impossible for plaintiff's attorney to file within the statutory period.

The facts are simple and not in dispute.

On March 17, 1983, plaintiff was seriously injured when her automobile was struck from the rear by defendant's automobile. Plaintiff retained attorney Bartlett, a sole practitioner, to represent her. Bartlett contacted defendant's insurer and obtained payment of property damages and engaged in settlement negotiations as to plaintiff's personal injury, medical expenses, and general damages.

Settlement negotiations continued and Bartlett calendared March 16, 1984, for the filing of a complaint if settlement was not finalized.

On March 12, 1984, Bartlett was struck by an automobile as he walked across Civic Center Drive to enter the Orange County Superior Court for trial of another case. He suffered severe, life-threatening injuries to his head and body that totally disabled him mentally and physically beyond the March 17, 1984 deadline for filing plaintiff's personal injury complaint. Bones in Bartlett's forehead were crushed; his temple bones, facial bones and nose were fractured; his ribs and legs suffered multiple fractures, and he developed a cerebral hematoma.

Emergency surgery was performed and Bartlett remained in the Western Medical Center Hospital intensive care unit until recovering consciousness on March 22. He thereafter suffered both long-term and short-term amnesia and was unable to remember events of the past month and events occurring on a previous day.

Approximately one month after the injury, Bartlett was released from the hospital. On April 16, Bartlett returned to his office working for about two hours per day several days each week. Plaintiff was not notified of Bartlett's accident until after his return to work.

On or about April 27, Bartlett discovered his omission to file plaintiff's complaint by March 17. Bartlett, a sole practitioner, had no attorney to cover his filing requirements for him during his illness, and because of the disruptive timing and severity of his injuries, his secretary did not pull the calendared case files for his attention until after March 17. The action was commenced April 27, 1984.

Defendant filed a motion to strike from the complaint all allegations pertaining to personal injuries on the ground that they were barred by the one-year period of limitation under section 340, subdivision (3) of the Code of Civil Procedure. ¹

Plaintiff filed opposition that was supported by the declaration of attorney Bartlett reciting the events here recounted.

Respondent granted defendant's motion, stating in its minute order of May 13, 1985, that "The cases cited by plaintiff do not support his position that under the circumstances here, the Statute of Limitations is tolled."

On July 17, 1985, the petition for mandate was filed. We issued the alternative writ, determining that the remedy of appeal from an eventual judgment of dismissal is inadequate under the circumstances, and that the issue presented is one of first impression calling for prompt determination. (Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379; Brown v. Superior Court (1971) 5 Cal.3d 509, 515, 96 Cal.Rptr. 584, 487 P.2d 1224.)

I

Section 312 provides that "Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute." Section 340, subdivision (3), proscribes that an action for personal injury be commenced within one year after accrual of the cause.

Sections 351 through 356 set forth circumstances tolling the limitations period: section 351 (absence of defendant from the state); section 352 (minority, insanity, imprisonment of plaintiff); section 352.5 (defendant subject to independent order of restitution for the injury as condition of probation); section 353 (death of plaintiff); section 353.1 (state court assumes jurisdiction over practice of plaintiff's attorney due to legal or other causes); section 354 (state of war bars plaintiff's access to court); and section 356 (commencement of action stayed by injunction or statutory prohibition).

Careful comparison of these statutory exceptions reveals the manifest common legislative purpose of attempting to avoid unjust application of statutes of limitation where circumstances effectively render timely commencement of action impossible or virtually impossible. ² Certain of the exceptions are apparently fashioned in response to very early cases wherein unjust results occurred for lack of a particular express tolling exception. (See Tynan v. Walker (1868) 35 Cal. 634, 640-644.) The Legislature in 1872 formulated its exceptions by specification of circumstances, rather than by direct statement of general principle. Of course it could not then predict all of the circumstances that come within the purpose of the tolling exceptions which could prevent timely filing. It is therefore appropriate for courts to construe the statutory tolling scheme and implicit tolling exceptions to effect the ostensible legislative purpose. (Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 409-410, 154 P.2d 399.)

II

Preliminarily, it is useful to point out that there is ample precedent for judicial construction of implicit tolling exceptions in appropriate circumstances.

Early California cases adopted, from English cases, a strict view against implicit exceptions to statutes of limitations, unless the particular circumstances at bench were clearly encompassed in the statutory language. (Tynan v. Walker, supra, 35 Cal. 634.)

However, the Supreme Court more recently construed the equity doctrine of estoppel as an implicit tolling exception. (Benner v. Industrial Acc. Com. (1945) 26 Cal.2d 346, 350, 159 P.2d 24; Accord: Muraoka v. Budget Rent-A-Car, Inc. (1984) 160 Cal.App.3d 107, 115-116, 206 Cal.Rptr. 476; Kunstman v. Mirizzi (1965) 234 Cal.App.2d 753, 755-756, 44 Cal.Rptr. 707; Langdon v. Langdon (1941) 47 Cal.App.2d 28, 31-32, 117 P.2d 371.) Early cases had rejected the possibility of estoppel an as implicit tolling exception upon the rationale that circumstances creating an estoppel were not explicitly specified by any of the statutory exceptions. (See Tynan v. Walker, supra, 35 Cal. at pp. 640-644.) Defendant acknowledges this "non-statutory exception," and argues only that it is inapplicable under the present facts.

A second instance of judicial recognition of implicit tolling circumstances occurred with regard to section 351. Section 351 provides: "If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action." (Emphasis added.)

Although it has been pointed out that the Legislature's use of the terms "return to the state" and "depart from the state" would not literally apply to a nonresident defendant who was never in the state (63 Harv.L.Rev. (1950) 1225-1226), it has been held that, upon pragmatic considerations of fairness, section 351 contemplated tolling "where the defendant has never been in, or resided in, the state until the filing of the complaint." (3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 492, p. 521; Cvecich v. Giardino (1940) 37 Cal.App.2d 394, 397-400, 99 P.2d 573; Foster v. Butler (1913) 164 Cal. 623, 628, 130 P. 6.)

A third instance of judicial construction of an implicit tolling exception exists with regard to section 355. In Bollinger v. National Fire Ins. Co., supra, 25 Cal.2d at page 399, 154 P.2d 399, the Supreme Court construed section 355, which, by its language, tolls statutes of limitation for one year where a plaintiff timely commences action and a judgment favorable to him is reversed on appeal. In Bollinger, the plaintiff had submitted a claim of loss to his insurer and commenced action immediately after the insured denied coverage but before the 30-day waiting period specified in the contract of insurance had elapsed. The defendant insurer obtained numerous continuances of trial. At trial, after presentation of plaintiff's case, defendant successfully moved for nonsuit on the procedural ground that the action was fatally premature. It was now beyond the applicable statute of limitations for commencement of a new action.

The Bollinger court held that the nonsuit was erroneously granted. It held that fairness and equity required construction of the principle underlying the language of section 355 to extend to situations where the defendant obtained a nonsuit in the trial court rather than a reversal on appeal. Bollinger pointed out that "the running of the statute of limitations may be suspended by causes not mentioned in the statute itself. [Citations.] It is settled in this state that fraudulent concealment by the defendant of facts upon which a cause of action is based [citation] or mistake as to the facts constituting the cause of action [citation] will prevent the running of the period...." (Id., at p. 411, 154 P.2d 399.) The court observed that where the...