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Geist v. Sequoia Ventures8/24/2000
CERTIFIED FOR PARTIAL PUBLICATION *
This appeal from a judgment of non-suit challenges the trial court's conclusion that the asbestos wrongful death action was barred by the Montana statute of repose, as made applicable by our own "borrowing statute." This ruling was sound, as was the court's award of costs. Accordingly, we affirm the judgment.
I. BACKGROUND
Appellants, the surviving heirs and the executor of the estate of Leon Giest, filed this action against numerous defendants on December 5, 1995. It arises out of the death of their decedent Leon Giest on June 5, 1995, from diseases resulting from the alleged exposure to asbestos and asbestos-containing products during his working years in Montana. Subsequently, this action was consolidated with the personal injury action filed by decedent and his wife on December 29, 1993. (Giest v. Abex Corporation et al (Super. Ct. S.F. City and County, 1993, No. 957515.)
Respondent Sequoia Ventures, Inc. (Sequoia) moved for summary judgment on grounds the action was time-barred under Montana law. After losing this round, Sequoia lodged a trial brief on the Montana statute of repose, arguing the company's prospective entitlement to non-suit or directed verdict.
Counsel stipulated that the non-suit motion could be heard on the following offer of proof: Leon Giest worked for the Montana Power Company (MPC) in Billings, Montana from approximately 1950 to 1985. Bechtel Corporation, the predecessor to Sequoia, constructed an addition to the plant during the period 1964 to 1968. The addition was completed in 1968. During construction and thereafter, Giest was exposed to asbestos-containing materials used by Sequoia in constructing the addition. Exposure to these materials ultimately led to lung cancer which caused his death.
The court granted the motion and entered judgment on non-suit, ruling that the action was "barred by the limitations period set forth in Montana Code section 27-2-208 made applicable to this action under California Code [of Civil Procedure] section 361." This appeal followed.
II. DISCUSSION
A. The Wrongful Death Action is Time-barred
Many states have adopted "borrowing statutes" in order to prevent forum shopping by plaintiffs. These statutes adopt the statute of limitations of the state in which the action arose. (Delfosse v. C.A.C.I., Inc.-Federal (1990) 218 Cal.App.3d 683, 691; Rest.2d Conflict of Laws, § 142, com. f.) Our borrowing statute states: "When a cause of action has arisen in another state, . . . and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one who has been a citizen of this state, and who has held the cause of action from the time it accrued." (Code Civ. Proc., § 361.)
Appellants contend that section 361 only applies in cases where plaintiffs have sued in a particular state for the sole purpose of avoiding a limitation period which has lapsed in another state. They claim this reasoning does not apply to them because they brought the action in California to obtain complete recovery, and at least seven defendants were not amenable to service in the State of Montana. While the overriding purpose of borrowing statutes is to curtail forum shopping, our section 361 does not inquire into the plaintiff's subjective intentions in suing in California. By its terms section 361 applies whenever a cause of action arises in another state and would be stale in that state, unless the holder of the cause of action is a California citizen who has held the cause from t
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