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■ Aguilera v. Heiman, No. B206790

 Freddy Aguilera was injured on November 5, 1997.  On April 16, 2007, almost 10 years later, Aguilera filed this civil action against respondents Robert P. Heiman, individually and doing business as Pegasus Properties (Heiman), and 2612 Montana Avenue Owners Association (Association).  Respondents demurred to an amended complaint on the basis that Aguilera’s action for personal injuries was barred by the statute of limitations.  Aguilera contended that the statute of limitations was tolled by his timely filing of a claim for workers’ compensation benefits against his unlicensed and uninsured employer, Mark Hruby, doing business as Rube’s Rain Gutter Service (Hruby), and the Uninsured Employers Benefits Trust Fund (UEF).  The trial court sustained the demurrer without leave to amend.  Aguilera appeals from the resulting dismissal of his action.  We affirm.

            We hold the claim is barred by the one-year statute of limitations under Code of Civil Procedure former section 340, subdivision (3) and the equitable tolling doctrine did not apply to extend appellant’s time to file an action against respondents.  Further, the trial court did not abuse its discretion in sustaining the demurrers without leave to amend.

1.  Aguilera’s Claim Is Barred by the One-Year Statute of Limitations

            When Aguilera was injured on November 5, 1997, Code of Civil Procedure former section 340, subdivision (3) provided a one-year statute of limitations for personal injury actions.  On January 1, 2003, new Code of Civil Procedure section 335.1 took effect and extended the statute of limitations for personal injury suits to two years.  The new two-year statute of limitations for personal injuries, however, was not retroactive.  (Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1028-1029; see Mojica v. 4311 Wilshire, LLC (2005) 131 Cal.App.4th 1069, 1073.)  Statutes generally operate only prospectively, and “[a] new statute that enlarges a statutory limitations period [only] applies to actions that are not already barred by the original limitations period at the time the new statute goes into effect.”  (Andonagui v. May Dept. Stores Co. (2005) 128 Cal.App.4th 435, 440.)  To revive an expired claim, a new statute of limitations must be made expressly retroactive by the Legislature, and the Legislature made no such provision in enacting Code of Civil Procedure section 335.1.  (Ibid.; see also Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 378-379 [“where the application of a new or amended statute of limitations would have the effect of reviving an already time-barred claim, the general rule against retroactive application of the statute is applicable in the absence of a clear indication of legislative intent to the contrary”].)  “The reason for this rule is a judicial perception of unfairness in reviving a cause after the prospective defendant has assumed its expiration and has conducted his affairs accordingly.”  (Gallo v. Superior Court (1988) 200 Cal.App.3d 1375, 1378; see also Douglas Aircraft Co. v. Cranston (1962) 58 Cal.2d 462, 465 [“These rules afford warning to potential defendants that until the statute of limitations has run it may be extended, whereas after it has run, they may rely upon it in conducting their affairs”].)

            In Krupnick v. Duke Energy Morro Bay, supra, 115 Cal.App.4th 1026, the plaintiff alleged he sustained injuries on January 26, 2001.  He filed his action on January 8, 2003.  (Id. at p. 1027.)  Under the one-year statute of limitations that applied on the date he was injured, he had only until January 26, 2002, to file his complaint.  (Id. at p. 1028.)  The court held Code of Civil Procedure section 335.1 did not apply to save the plaintiff’s action from the running of the statute of limitations, because his claim was already time-barred when the new two-year statute became effective on January 1, 2003, and the new statute did not operate retroactively to revive his action.  (Krupnick, supra, at pp. 1028-1029.)

            In the present case, when Aguilera was injured on November 5, 1997, the one-year provision of Code of Civil Procedure former section 340, subdivision (3) was in effect.  The one-year period for Aguilera to bring a personal injury action expired on November 5, 1998.  Thus, when the new Code of Civil Procedure section 335.1 two-year statute of limitations took effect on January 1, 2003, it did not operate retroactively to revive Aguilera’s personal injury action.

2.  Equitable Tolling Does Not Apply to Extend the Statute of Limitations

            Aguilera contends his action is not barred by the one-year statute of limitations because it was equitably tolled while he was pursuing his workers’ compensation remedy.  He further asserts the principles of equitable estoppel should apply because it was respondents who prolonged the resolution of the workers’ compensation case and respondents claim no prejudice due to the delay in filing the civil case.

A.  Equitable Tolling Doctrine

            In Elkins v. Derby, supra, 12 Cal.3d 410, our Supreme Court formulated the principle of equitable tolling, applying the doctrine to situations “‘[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.’”  (Id. at p. 414, quoting Myers v. County of Orange (1970) 6 Cal.App.3d 626, 634.)

            In Elkins v. Derby, the plaintiff, who was injured while working, “reasonably and in good faith filed a timely claim for benefits” against his supposed employer but, after several months of adjudication, the Workers’ Compensation Appeals Board determined he had not been an “employee” at the time of his injury because he received no compensation for his services.  (Elkins v. Derby, supra, 12 Cal.3d at p. 412, italics added.)  One month later, the plaintiff filed his personal injury action seeking recovery against the same defendants for the same injury that served as the basis for his workers’ compensation claim.  (Id. at p. 413.)  The court held the statute of limitations was tolled for the period during which the plaintiff had pursued his compensation remedy.  The court stated:  “[A]n awkward duplication of procedures is not necessary to serve the fundamental purpose of the limitations statute, which is to insure timely notice to an adverse party so that he can assemble a defense when the facts are still fresh.  The filing of a compensation claim accomplishes this purpose and the tolling of the statute does not frustrate it.”  (Id. at p. 412.)

            The equitable tolling doctrine rests on the concept that a plaintiff should not be barred by a statute of limitations unless the defendant would be unfairly prejudiced if the plaintiff were allowed to proceed.  “[T]he primary purpose of the statute of limitations is normally satisfied when the defendant receives timely notification of the first of two proceedings.”  (Elkins v. Derby, supra, 12 Cal.3d at p. 417, fn. 3; see also Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 923.)  The doctrine has been applied “where one action stands to lessen the harm that is the subject of the second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason.”  (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100, citing Collier v. City of Pasadena, supra, at p. 923.)

B.  Essential Requirements for Equitable Tolling

            Equitable tolling requires that three essential elements be satisfied by the party seeking the tolling:  “(1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second claim.”[4]  (Collier v. City of Pasadena, supra, 142 Cal.App.3d at p. 924; see also Addison v. State of California (1978) 21 Cal.3d 313, 319; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1085; and see Mojica v. 4311 Wilshire, LLC, supra, 131 Cal.App.4th at p. 1073.)  The requirement of timely notice basically means the first claim must have been filed within the statutory period; the filing of the first claim also must have alerted the defendant in the second claim of the need to begin investigating the facts that form the basis for the second claim.  (Collier v. City of Pasadena, supra, at p. 924.)  Normally, this means the defendant in the first claim is the same one being sued in the second.  (Ibid.)  The second prerequisite in essence translates into a requirement that the facts of the two claims be identical or at least so similar that the defendant’s investigation of the first claim will put him in a position to fairly defend the second.  (Id. at p. 925.)  So long as the defendant is timely placed on notice by the first claim so he can investigate in order to “appropriately defend” the second claim, “it is irrelevant whether those two claims are alternative or parallel, consistent or inconsistent, compatible or incompatible.”  (Id. at p. 926.)

■ HELD:

In a negligence action, trial court judgment dismissing plaintiff's claim is affirmed where: 1) plaintiff's the claim is time barred by the one-year statute of limitations under Code of Civil Procedure former sec. 340 (3); 2) plaintiff's action was not equitably tolled while he was pursuing his workers' compensation remedy; and 3) the trial court did not abuse its discretion in sustaining the demurrers without leave to amend
Aguilera v. Heiman-B206790- 5/29/09 CA2/8
Aguilera v. Heiman-B206790- 5/29/09 CA2/8-PDF

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