Trindade v. Superior Court

Opinion

Two automobiles collided December 21, 1969, causing injuries to their respective drivers Fernando Trindade, here the petitioner, and Bruce Jacolick, here the real party in interest. Jacolick timely commenced a damage action for personal injuries alleged to have been proximately caused by Trindade’s negligence. Thereafter, and on or about April 28, 1972, upon leave of court following a contested motion therefor, Trindade filed an additional pleading captioned “Cross-Complaint,” seeking damages against Jacolick for personal injuries alleged to have been proximately caused by the latter’s negligence in the accident.

It will be seen that the cross-complaint was filed more than two years after the cause of action on which it was based arose. The statute of limitations on an action for injuries “caused by the wrongful act or neglect of another’’ is one year. (Code Civ. Proc., § 340, subd. 3.)

We issued our alternative writ of mandate for the purpose of inquiring into the legality of the trial court’s ruling.

On this proceeding we are not concerned with the discretion exercised by the superior court in permitting the delayed filing of Trindade’s cross-complaint. It is a basic rule that mandamus will not lie to control a court’s discretion. (Babb v. Superior Court, 3 Cal.3d 841 , 851 [ 92 Cal.Rptr. 179 , 479 P.2d 379 ]; 5 Witkin, Cal. Procedure (2d ed. 1971) p. 3856.) We consider instead the question whether the court, in sustaining Jacolick’s demurrer without leave to amend, “has made a ruling which deprives a party of the opportunity to plead his cause of action or defense’’; in such a case relief by mandamus is appropriate. (Holtz v. Superior Court, 3 Cal.3d 296 , 301, fn. 4 [ 90 Cal.Rptr. 345 , 475 P.2d 441 ]; Tate v. Superior Court, 213 Cal.App.2d 238 , 251 [ 28 Cal.Rptr. 548 ].)

It seems proper, preliminarily, in order to place the issue before us in proper focus to emphasize certain considerations.

The cause of action of Trindade’s cross-complaint was not barred by the statute of limitations at the time Jacolick filed his complaint. Had it been, it is settled that Trindade’s barred rights could not have been regained by cross-complaint or other pleading. (See Jones v. Mortimer, 28 Cal.2d 627 , 632 [ 170 P.2d 893 ]; Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740 , 746 [ 47 P.2d 273 ]; Whittier v. Visscher, 189 Cal. 450 , 456 [ 209 P. 23 ].)

And we point out that the cross-complaint was directed only at the plaintiff Jacolick. It did not seek relief against any codefendant or against any new party sought by it to be brought into the action. As to cross-actions against such codefendants or new parties it has regularly been held that the statute of limitations is not tolled by the commencement of the plaintiff’s action. (See Spaulding v. Howard, 121 Cal. 194 , 197-198 [ 53 P. 563 ]; Jeffers v. Cook, 58 Cal. 147 , 150; Warren v. Atchison, T. & S. F. Ry. Co., 19 Cal.App.3d 24 [ 96 Cal.Rptr. 317 ]; Taliaferro v. Riddle, 167 Cal.App.2d 567 , 569-570 [ 334 P.2d 950 ]; Western etc. Co. v. Tuolumne etc. Corp., 63 Cal.App.2d 21 , 30-32 [ 146 P.2d 61 ]; Jackson v. Lacey, 37 Cal.App.2d 551 , 558 [ 100 P.2d 313 ]; John Bollman Co. v. S. Bachman & Co., 16 Cal.App. 589 , 593 [ 117 P. 690 , 122 P. 835 ].) The rationale of this distinction was discussed in Western etc. Co. v. Tuolumne etc. Corp., supra, at page 31, as follows: “The principle underlying the rule that a statute of limitations is suspended by the filing of the

It has consistently been held that the commencement of an action tolls the statute of limitations as to a defendant’s then unbarred cause of action against the plaintiff, “relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought, . . .” (See Code Civ. Proc., § 442.)

In, Schirmer v. Lyback, 193 Cal.App.2d 807 [ 14 Cal.Rptr. 700 ], an answer and cross-complaint were filed by the defendant in a wrongful death action. The action had been filed within the period of the appropriate statute of limitations, but the cross-complaint had not. Answering the plaintiff’s contention that the statute had run against the cross-complaint, the court held (p. 814): “[T]hat the filing, of the original action tolled the running of the statute of limitations as to- appellant’s cross-complaint arising out of the same transaction provided the statute of limitations had not run when the original action was filed.” In Whittier v. Visscher, supra, 189 Cal. 450 , the court reached a similar conclusion on a contention that a cross-complaint was barred by the statute of limitations. It stated (p. 456): “[T]he authorities in this state seem to be agreed that if the right of action relied on [in the cross-complaint] was alive at the commencement of the suit the statute does not run against it, when, as in this case, the full statutory period has expired thereafter during the pendency of the action and before the claim is pleaded as a cross-complaint.” Mr. Witkin, reviewing relevant authority, has said: “The statute is a bar to the defendant’s affirmative claim only if the period has already run when the complaint is filed. The filing of the complaint suspends the statute during the pendency of the action, and the defendant may set up his [cross] claim by appropriate pleading at any time.” (2 Witkin, Cal. Procedure (2d ed. 1970) p. 1095.) To the same effect see Holtzendorff v. Housing Authority, 250 Cal.App.2d 596 , 636 [ 58 Cal.Rptr. 886 ] [cert. den. 389 U.S. 1038 ( 19 L.Ed.2d 287 , 88 S.Ct. 775 )].

The foregoing authority impels us to conclude that the superior court erred in sustaining Jacolick’s general demurrer to Trindade’s cross-complaint.

We recognize that there appears to be some apparent, but not true, conflict with the rule as it applies to cross-complaints. Western etc. Co. v. Tuolumne etc. Corp., supra, 63 Cal.App.2d 21 , 31-32, without recital