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Peterson v. Steele Company11/25/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiff Edmund Peterson appeals from an order of dismissal entered following the sustaining without leave to amend of a demurrer by defendant Steele Company. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On August 17, 2000, plaintiff was working at his desk at his place of employment. Defendant's employees were working on improvements on the other side of the wall behind plaintiff's desk. They negligently caused a heavy picture on plaintiff's side of the wall to come loose. It fell on him, injuring him.
Plaintiff's employer, Quantum Enterprises (Quantum), had workers' compensation insurance with Redland Insurance Company (Redland). Quantum made a claim against Redland for workers' compensation payments for plaintiff. Redland made workers' compensation payments to plaintiff for his medical bills. Redland then filed a complaint for recovery of workers' compensation benefits against defendant on August 17, 2001.
On February 25, 2002, plaintiff filed a complaint for damages for negligence against defendant. On March 20, 2002, he filed notice of related case, notifying the court in his case of Redland's action against defendant. On April 18, 2002, this case was reassigned to the department where Redland's action was pending. The court consolidated the two cases on May 28, 2002.
Defendant filed a demurrer to plaintiff's complaint on July 17, 2002. The ground for the demurrer was that the action was barred by the one-year statute of limitations. (Former Code Civ. Proc., ยง 340, subd. 3.) Plaintiff opposed the demurrer on July 31, 2002 on the ground the one-year statute of limitations was tolled here due to the pendency of Redland's action against defendant.
On August 1, 2002, Redland obtained a dismissal with prejudice of its action against defendant following a settlement between the two. On August 12, plaintiff filed a supplemental brief on the validity of Redland's dismissal of its action against defendant and the effect of the dismissal on his claim the statute of limitations was tolled. On August 21, the trial court sustained defendant's demurrer without leave to amend.
On September 9, 2002, plaintiff moved to set aside Redland's dismissal of its action against defendant on the grounds settlement of that action was barred by Labor Code section 3859 and setting aside the dismissal was justified under Code of Civil Procedure section 473 based on surprise, inadvertence and excusable neglect. Plaintiff further requested that he be allowed to file a complaint in intervention in Redland's action. On September 30, the trial court denied the motion.
CONTENTIONS
Plaintiff contends the trial court erred in sustaining defendant's demurrer based on the statute of limitations. The trial court did not err.
Plaintiff further contends the trial court erred in refusing to set aside Redland's dismissal of its action against defendant. There was no error.
Finally, plaintiff asserts the trial court abused its discretion in denying him relief under Code of Civil Procedure section 473 and thereby precluding him from filing a complaint in intervention. The trial court did not abuse its discretion.
DISCUSSION
Statute of Limitations
On appeal from an
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