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Salim v. Hocking3/3/2003
pp.4th at p. 1336.)
The Court of Appeal concluded that the plaintiff did not satisfy the three requirements of the Bollinger rule of equitable tolling because she did not diligently pursue the claims asserted in the second action, since she knew the facts underlying those claims, yet failed to assert them in the first action, and she failed to seek leave to amend the complaint in the first action to assert the causes of action asserted in the second action apart from the punitive damages claim. The court reasoned that, unlike the plaintiff in Bollinger, the plaintiff was not denied a trial on the merits because of the trial court's error, but due to her own failure to comply with the provisions of the Code of Civil Procedure or to amend her complaint in the first action to state the causes of action she asserted in the second action. (Hull v. Central Pathology Service Medical Clinic, supra, 28 Cal.App.4th at p. 1336.)
Respondents assert we should apply the Bollinger three-prong test to Salim's claims. We disagree. The test formulated in Bollinger has been applied in cases such as Wood v. Elling Corp. and Hull v. Central Pathology Service Medical Clinic, to situations where the plaintiff had only one avenue of legal recourse available, and pursued successive claims in the same forum. In contrast, the test formulated in Addison has been applied in situations where the plaintiff, with two avenues of legal recourse available, unsuccessfully pursues one of them and then brings a second action in the alternative forum. (See, e.g., Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1099-1103 [one- year statute of limitations for causes of action brought under FEHA equitably tolled during the processing of the employee's charge by the EEOC]; Structural Steel Fabricators, Inc. v. City of Orange (1995) 40 Cal.App.4th 459, 464-465 [limitations period on action to enforce stop notice against city equitably tolled during pendency of separate action against general contractor and bonding company]; Collier v. City of Pasadena, supra, 142 Cal.App.3d at pp. 922-934 [filing of workers' compensation claim equitably tolled statute of limitation for filing a disability pension claim].)
The Supreme Court noted this distinction between these two types of cases in Wood v. Elling Corp. when it stated:
"The case of Elkins v. Derby ..., relied upon by plaintiff, manifestly presents a different situation. We there held that the statute of limitations governing actions for personal injuries was tolled during the pendency of workers' compensation proceedings relating to the same accident because insistence on duplicative parallel filing in these circumstances would impose unnecessary burdens on the parties and the courts without furthering the fundamental policy underlying limitations statutes. [Citation.] Here, however, we are concerned not with a burdensome and duplicative filing requirement but with a plaintiff's failure to diligently pursue the sole avenue of legal recourse available to him." (Wood v. Elling, supra, 20 Cal.3d at p. 359, fn. 4.)
The instant action is not a case where Salim brought an action in state court, which was later dismissed, and then filed a second suit in the same forum. Instead, this is a case like Addison and its progeny, where Salim brought an unsuccessful federal action, which included supplemental state claims, and then sought to assert the same state claims in state court. Accordingly, it is the formulation of the equitable tolling doctrine announced in Addison that we look to in deciding this case.
For this same reason, respondents' attempt to liken this case to Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261
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