Shelton v. Superior Court

• Decision Date: 08 March 1976
• Citation: 128 Cal.Rptr. 454,56 Cal.App.3d 66
• Parties: Mary E. SHELTON and Danny R. Shelton, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SANTA CLARA, Respondent; STATE of California et al., Real Parties in Interest. Civ. 37400.
• Court: California Court of Appeals Court of Appeals

Page 454

128 Cal.Rptr. 454

56 Cal.App.3d 66

Mary E. SHELTON and Danny R. Shelton, Petitioners, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SANTA CLARA, Respondent STATE of California et al., Real Parties in Interest.

Civ. 37400.

Court of Appeal, First District, Division 1, California.

March 8, 1976.

As Modified March 16, 1976.

Hearing Denied May 6, 1976.

Michael G. Briski, Briski & Frisch, Mountain View, for petitioners.

Harry S. Fenton, Chief Counsel, Sacramento, John P. Horgan, Robert J. DeFea, Thomas J. Brandi, Robert R. Buell, San Francisco, for real parties in interest.

SIMS, Associate Justice.

Petitioners, husband and wife, who originally filed their joint complaint in respondent court seeking individually general and special damages proximately resulting from injuries suffered as a result of an automobile accident on March 6, 1973, now seek a peremptory writ of mandate ordering the trial court, which has denied their motion to that end, to permit them to amend their complaint to include, with respect to each, an amendment to claim damages for loss of consortium. (See Rodriguez v Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408, 115 Cal.Rptr. 765, 525 P.2d 669.) They claim that each spouse, having made timely claim and having joined with the other in the complaint for personal injuries arising out of the same automobile accident, should be permitted to amend, although the one-year period of limitation from the time of the accident expired before the right to damages of such nature was even recognized in this state, before claim for such damages was filed with the public entitles involved, and before it was the subject of any pleading before the court. We issued an alternative writ of mandate to review the question involved because it appeared that there was possibly an abuse of discretion which would prevent the assertion of a meritorious cause of action, and because the remedy by appeal after a trial on the existing pleadings, if successful, might lead to a needless and expensive retrial. (See Holtz v. Superior Court (1970) 3 Cal.3d 296, 301, fn. 4, 90 Cal.Rptr. 345, 475 P.2d 441; Landis v. Superior Court (1965) 232 Cal.App.2d 548, 554, 42 Cal.Rptr. 893; Tate v. Superior Court (1963) 213 Cal.App.2d 238, 251, 28 Cal.Rptr. 548; Saari v. Superior Court (1960) 178 Cal.App.2d 175, 177, 2 Cal.Rptr. 856; and 5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, § 86, p. 3860.) Although service of the alternative writ has been made on all four named defendants in the action below, as real parties in interest, only the State of California has filed a return to the alternative writ.

For reasons set forth below it is determined that there is no merit in the grounds set forth in the petition. The alternative writ must be discharged and the petition will be denied.

The salient facts as revealed by the pleading and motions in the lower court are as follows: According to the allegations of the complaint petitioner Mary E. Shelton, on March 6, 1973, was riding as a passenger in a vehicle driven by her husband, the petitioner Danny R. Shelton, on State Highway Route 52, at or about its intersection with Walnut Lane, a Santa Clara County highway, when a collision occurred with a vehicle driven by one Yuste, not a party to the action, involving also a third vehicle driven and operated by real party in interest Fontana, and owned by real party in interest Tubbs Cordage Company. Claims were duly presented to the state ¹ and county, and were rejected, the former on August 7, 1973, and the latter July 23, 1973.

By their joint complaint, filed January 16, 1974, the wife sought $3,000,000 general damages, and special damages for medical care and treatment and wage loss, according to proof in five causes of action. Two causes of action against each of the respective governmental entities are predicated on the negligence and defects in the construction of the road under the jurisdiction of the respective entity and the failure to give adequate note of the hazards involved in using the road. The remaining cause of action is predicated upon the negligence of the driver Fontana. In five similar causes of action the husband sought $500,000 general damages, and special damages for medical care and treatment and wage loss, according to proof. There is also a general prayer for such other and further relief as may seem meet and proper to the court.

On August 12, 1974, the Supreme Court filed its opinion in the Rodriguez case. Thereafter, the attorney for the petitioners advised the attorney for the state that petitioners would each claim damages for loss of consortium, first by telephone, and on October 24, 1974, by letter. A similar letter was sent to the attorney for the private defendants. On November 14, 1974, the attorney for the state wrote that it did not acquiesce in petitioners' position that such a claim could be included in the prayer for general damages.

On December 9, 1974, petitioners filed their notice of motion to amend complaint. ² The motion was denied by order signed and filed February 5, 1975. Thereafter petitioners sought to vacate the decision. This motion was denied March 31, 1975, and on July 25, 1975, petitioners commenced the instant proceedings.

I

In Rodriguez v. Bethlehem Steel Corp., supra, the court concluded: 'We therefore overrule Deshotel v. Atchison, T. & S.F. Ry. Co. (1958), supra, 50 Cal.2d 664, 328 P.2d 449, and West v. City of San Diego (1960) supra, 54 Cal.2d 469, 475--478, 6 Cal.Rptr. 289, 353 P.2d 929, and declare that in California each spouse has a cause of action for loss of consortium, as defined herein, caused by a negligent or intentional injury to the other spouse by a third party.' (12 Cal.3d at p. 408, 115 Cal.Rptr. at 782, 525 P.2d at 686.)

The only reference to the problem posed by petitioners' contentions in these proceedings is found in a footnote in the court's answer to the argument that judicial recognition of one spouse's cause of action for loss of consortium would operate retroactively, and might work a hardship upon persons, who, in reliance upon the existing rule, had made a steelement with the injured spouse, believing that the other spouse could not sue for damages resulting from the former's injury. The court stated, '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 goving rise to such loss was concluded by settlement or judgment prior to the effective date of this decision. (Citations.)' (Id., fn. omitted. See also Hair v. County of Monterey (1975) 45 Cal.App.3d 538, 546--548, 119 Cal.Rptr. 639. Cf. Suter v. Leonard (1975) 45 Cal.App.3d 744, 746--748, 120 Cal.Rptr. 110.) The omitted footnote reads, '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.' (12 Cal.3d at p. 408, fn. 30, 115 Cal.Rptr. at 782, 525 P.2d at 686. See also Hair v. County of Monterey, supra, 45 Cal.App.3d 538, 547, 119 Cal.Rptr. 639.)

In Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 124 Cal.Rptr. 370, the trial court permitted an amendment to the wife's cause of action, to recover her damages for personal injuries, that permitted the husband, more than one year after the accident giving rise to the injuries, to assert, in a second count, a cause of action for loss of consortium. The defendant's demurrer, on the ground that cause of action was barred by the statute of limitations, was overruled. The Court of Appeal, upon the petition of the defendant, issued a peremptory writ ordering the trial court to sustain the demurrer without leave to amend. The court rejected the husband's contention that the statute of limitations on his claim could only commence to run when the decision was filed in Rodriguez. A reading of the footnote quoted above indicates, as noted by the Bartalo court, that the Supreme Court contemplated that only those persons whose cause of action for loss of consortium arose within one year prior to the filing of the opinion would be able to file suit, and then only if the injured spouse had not effected a settlement or secured a judgment (51 Cal.App.3d at pp. 529--530, 124 Cal.Rptr. 370). The court also pointed out that California decisional law precludes the right to bring an action despite a change in law after the statute of limitations has expired on the original claim, even though it might have been deemed futile to pursue the claim under previously prevailing rules of law. (51 Cal.App.3d at pp. 530--532, 124 Cal.Rptr. 370. See Monroe v. Trustees of the California State Colleges (1971) 6 Cal.3d 399, 406--408 and 413--414, 99 Cal.Rptr. 129, 491 P.2d 1105; Estate of Horman (1971) 5 Cal.3d 62, 71, 95 Cal.Rptr. 433, 485 P.2d 785; and Lopa v. Superior Court (1975) 46 Cal.App.3d 382, 390--392, 120 Cal.Rptr. 445.)

In Bartalo the court also rejected the husband's argument that his wife's complaint could be amended to add him as a party plaintiff and that the statute of limitations was tolled by the filing of the wife's original complaint, because his cause of action in the amended complaint, since it sought recovery on the same general set of facts, would relate...