Arthur MITCHELL, Plaintiff and Respondent, v. ASBESTOS CORPORATION, LTD., Defendant and Appellant.
This asbestos action by Arthur Mitchell went to jury trial against one defendant, Asbestos Corporation, Ltd. (ACL), a Quebec mining company which supplied asbestos fibers to various manufacturers. Mitchell's trial theory was that ACL supplied Eagle-Picher Industries, Inc. (EPI), a Midwestern company which manufactured an insulating cement called Eagle 66 or Super 66. Mitchell contracted asbestosis and mesothelioma. He claimed asbestos exposure, partly from EPI cement, while working for three to six months in 1942 or 1943 as a tack welder at Moore Dry Dock in Oakland. He relied in particular on deposition testimony from Robert Bockstahler, a one-time EPI employee, who testified, based on copies of EPI records, that ACL had been EPI's exclusive supplier of asbestos fibers during the relevant time period.
The case went to the jury on theories of strict liability and negligence. By special verdict, the jury found: asbestos bore a defect in design or failure to warn when it left ACL's possession; this caused Mitchell's injury and was reasonably foreseeable; ACL also negligently caused injury; Mitchell first suffered appreciable harm before January 4, 1986 (the effective date of Proposition 51); and ACL was a substantial factor in causing the exposure and was 10 percent liable. The jury made separate noneconomic damage awards for asbestosis and mesothelioma.
Judgment was for the principal sum of $835,119, and ACL appeals.
ACL seeks reversal on several grounds, most of them raised in its unsuccessful posttrial motions for judgment notwithstanding the verdict and new trial. It argues: (1) merely supplying raw asbestos for use in manufacturing by others cannot support strict liability; (2) the statute of limitations bars recovery; (3) the evidence is insufficient to support causation between Mitchell's injuries and any asbestos ACL supplied; (4) the Bockstahler deposition was erroneously admitted; and (5) Proposition 51 should have been applied to reduce noneconomic damages to ACL's 10-percent proportional fault. Post-briefing authority would seem to resolve the last point in ACL's favor (Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 66 Cal.Rptr.2d 438, 941 P.2d 71), but we find that and other issues moot. Error in applying the statute of limitations compels a complete reversal.
The statute of limitations problem has several component parts, which we address separately. Their common factual and procedural predicate is as follows.
Mitchell filed several asbestos-related lawsuits, two of them San Francisco Superior Court actions naming ACL as a defendant. The verdict and judgment here are after these two actions were ordered consolidated on Mitchell's motion. The first action No. 955576)(Mitchell), filed in October 1993, alleged Mitchell suffered injuries which included “breathing difficulties, asbestosis, and/or other lung damage,” suffered increased risk and fear of developing various cancers, and had been diagnosed on or about 1979 with “asbestosis and asbestos-related pleural disease.” ACL was never served in that action.
The second action Mitchell v. Asbestos Corp., Ltd.(Super Ct. S.F. County, No. 975884)(Mitchell), filed in February 1996, added allegations Mitchell suffered from “lung and/or other cancer, mesothelioma,” and had been diagnosed the month before with mesothelioma. ACL was served in this action in February and answered on April 11, raising an affirmative defense of the statute of limitations found in section 340.2 of the Code of Civil Procedure (all unspecified further section references are to that code). Citing his terminal illness, Mitchell moved on April 12 for an order consolidating the actions and granting trial preference. His motion was granted on April 30, without objection from ACL, and trial was set for July 8, discovery to remain open. Several defendants were served with the motion, but settlements obviously followed, for trial began on July 31 against ACL as the sole remaining defendant.
ACL raised the issue of the statute of limitations near the close of evidence and raised it again in its posttrial motions. Relying on Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349, 47 Cal.Rptr.2d 580 (Darden ), it maintained Mitchell II was time-barred because Mitchell I had started the one-year statute (§ 340.2) running. Tardy cognizance of this issue, ACL explained in its posttrial motions, was from not having realized, until a chance remark by the court in chambers, that this was a consolidated case. Only afterwards did ACL discover it had been named in Mitchell I. It was stipulated at the motion made during trial that Mitchell's answers to standard interrogatories had revealed the prior lawsuit and listed the defendants involved but had not listed ACL.
The court denied the posttrial motions, reasoning aloud: (1) the first action was without dispute timely filed; (2) Mitchell had promptly filed and served ACL with the second action after learning he had mesothelioma; (3) the matters had been consolidated “for all purposes” and an early trial date set; (4) trial then proceeded with ACL “the only remaining defendant” and the court clerk announcing on the first day the case was being tried as a consolidated action; and (5) ACL made no claim during Mitchell's presentation of evidence that “either asbestosis or mesothelioma was outside the proper scope of the issues.” The court concluded: (6) ACL had “made a general appearance” in both cases; (7) all evidence had been properly admitted for both cases; (8) the matter was distinguish-able from Darden; and (9) the judgment was “not defective” based on the statute. When ACL's counsel asked to clarify for the record that “the consolidation was not for all purposes, but rather just for trial,” the court said the record would “speak for itself” and read aloud the consolidation order, which merely stated in part “ ․ Action Nos. 955576 and 975884 are consolidated as Action No. 955576.” In denying the motion when first raised, at trial, the court had said it found Mitchell was misled by lack of earlier objection “either under the doctrine of waiver [,] estoppel or la[c]hes any or all of them․”
I. Statute of limitations (Darden)
Section 340.2 provides in part: “(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following: [¶] (1) Within one year after the date the plaintiff first suffered disability. [¶] (2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure. [¶] (b) ‘Disability’ as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation.”
This special statute, enacted in recognition of the long period of time which may elapse before serious asbestos-related disease develops, allows a plaintiff who knows of his or her asbestos-related illness to nevertheless delay bringing an action until disability from work occurs (Darden, supra, 40 Cal.App.4th 349, 354, 47 Cal.Rptr.2d 580) or, in the case of a plaintiff who has retired before the onset of what would have been a disability, for an indefinite period of time (ibid.; Duty v. Abex Corp. (1989) 214 Cal.App.3d 742, 749-751, 263 Cal.Rptr. 13).
Darden decided, on facts remarkably like those here, that this unusual freedom to delay bringing an action nevertheless does not mean a plaintiff, once having elected to bring suit, can bring successive actions without violating the one-year limitation period. The plaintiff in Darden brought a 1987 action based on asbestos exposure, naming but never serving defendant General Motors Corporation (GM). After reaching settlements with some defendants, he dismissed the action without prejudice as to others, including GM. Then in 1991, he filed a virtually identical complaint against GM and others. (Darden, supra, 40 Cal.App.4th at p. 351, 47 Cal.Rptr.2d 580.)
Division Four of this court held the second action time-barred under the one-year statute: “Although plaintiff claimed the statute never began to run against him because he did not suffer a disability within the meaning of section 340.2, unquestionably with the commencement of [his first action] he was on record that he knew and believed his cause of action had accrued for asbestos-related illness․” (Darden, supra, 40 Cal.App.4th at p. 352, 47 Cal.Rptr.2d 580.) “Holding fast under these circumstances to the literal definition of ‘disability’ would endorse a rule that encourages plaintiffs who have already elected to litigate their asbestos-related personal injury claim to avoid the normal consequences of civil procedure with a second, otherwise untimely, lawsuit. These consequences include the bar of the statute of limitations as well as mandatory dismissal for failure to serve (§ 583.210 et seq.) or prosecute (§ 583.310 et seq.). Such a result would subvert the general policy informing statutes of limitations and, on the other hand, would fail to serve the specific remedial policy which spurred the passage of section 340.2.” (Id. at p. 355, 47 Cal.Rptr.2d 580.)
This “loophole for multiple suits against the same defendant beyond the one-year bar” would defeat the purposes of promoting repose and preventing stale claims and be “out of synch” with the general scheme for commencing actions. (Darden, supra, 40 Cal.App.4th at p. 356, 47 Cal.Rptr.2d 580.) “Section 340.2 postpones accrual of the cause of action for injury from exposure to asbestos. Section 312 tells us an action cannot be started until it accrues. By filing [the first action] in 1987 plaintiff voluntarily commenced an action within the meaning of section 350 and therewith admitted that his cause of action had accrued. Plaintiff in effect invoked the bar of section 340.2 and cannot later revoke it: if his cause of action accrued in 1987, it does not ‘unaccrue’ in 1991 just because he attempted to deny accrual under the technical shelter of the very same statute.” (Ibid.) The court found no legislative intent in section 340.2 “to allow multiple suits beyond the one-year limit.” (Ibid.)
Accordingly, Darden held, “[W]hen an individual has already announced and pursued an asbestos-related personal injury claim with a prior lawsuit, and indeed in that suit has named but not served the very defendant then pursued at a much later date, that person does not escape the limitation of section 340.2. Rather, the statute starts to run upon filing the first lawsuit.” (Darden, supra, 40 Cal.App.4th at p. 356, 47 Cal.Rptr.2d 580.)
Our case is not meaningfully distinguishable. Mitchell filed his first action against ACL in October 1993, claiming asbestos-related injury and naming but not serving ACL. This started the one-year statute running. He filed his second action over two years later, in February 1996, making the second action time-barred.
Mitchell acknowledges the similarity but argues Darden is wrongly decided. He criticizes its discussion equating commencement of actions with accrual of actions, noting that accrual of an action may, as in section 340.2 and other situations (notably where a plaintiff with an accrued cause of action is under a disability), long precede the running of the time for commencing the action. While our division has recently endorsed Darden as essentially correct (Barr v. ACandS, Inc. (1997) 57 Cal.App.4th 1038, 1049-1053, 67 Cal.Rptr.2d 494 (Barr ), review den. Dec. 23, 1997), we briefly address Mitchell's arguments.
Darden 's use of the terms “accrued” and “accrual” is inaccurate. “[A]s a general proposition it is settled that a plaintiff's cause of action accrues for purposes of the statute of limitations upon the occurrence of the last element essential to the cause of action; that is when the plaintiff is first entitled to sue. [Citations.]” (Buttram v. Owens-Corning Fiberglas Corp., supra, 16 Cal.4th 520, 531, fn. 4, 66 Cal.Rptr.2d 438, 941 P.2d 71.) Section 340.2, in using the trigger of “disability,” does not equate “accrual” with commencement of the limitations period; a plaintiff may have an “accrued” cause of action for asbestos-related injury but, until “disability” occurs, enjoys a period where the one-year time has not yet started to run. Thus Darden does err when it reasons that commencing an action admits the action has “accrued” (Darden, supra, 40 Cal.App.4th 349, 356, 47 Cal.Rptr.2d 580; Barr, supra, 57 Cal.App.4th 1038, 1049 & fn. 4, 67 Cal.Rptr.2d 494). However, this does not undermine its rationale. Darden ' s point is simply this: by commencing an action, the plaintiff admits there is a known asbestos-caused injury (§ 340.2, subd. (a)), and when he or she elects to file suit, eschewing the statutory option of waiting longer, he or she has made the choice and cannot sue again after one year passes. Nothing in the legislation shows an intent to allow multiple actions. (Barr, supra, 57 Cal.App.4th 1038, 1050, 67 Cal.Rptr.2d 494.)
We hold that the second action, Mitchell II, is time-barred (§ 340.2) under Darden.
II. Separate cause of action for mesothelioma injury
Mitchell's first complaint alleged “breathing difficulties, asbestosis, and/or other lung damage,” an increased risk and fear of developing various cancers, and a 1979 diagnosis of “asbestosis and asbestos-related pleural disease.” His second complaint alleged for the first time “lung and/or other cancer, mesothelioma” and a February 1996 diagnosis of mesothelioma. Encouraged by a Court of Appeal decision which cannot be cited due to a grant and retransfer by the Supreme Court (Richmond v. A.P. Green Industries, Inc. (Cal.App.) review granted Oct. 1, 1997 (S062813) cause trans. to Ct.App. with directions, Dec. 23, 1997), Mitchell asks us to distinguish Darden and to recognize, as some other jurisdictions have, a separate cause of action and new running of the statute for late-developed cancer injury like mesothelioma. We decline to do so.
California follows the primary right theory, which generally prevents a plaintiff from “splitting” his or her cause of action. (See 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 24, pp. 85-87.) A single action cannot be divided and made the basis of several suits (id., § 35, pp. 95-96) except where exceptional circumstances might justify a departure from the rule to avoid harsh results (id., § 36, pp. 96-97). This applies as well to damages. “A single tort can be the foundation for but one claim for damages. [Citations.]” (Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 638-639, 134 P.2d 242; Landeros v. Flood (1976) 17 Cal.3d 399, 413, 131 Cal.Rptr. 69, 551 P.2d 389.) “Accordingly, if the statute of limitations bars an action based upon harm immediately caused by defendant's wrongdoing, a separate cause of action based on a subsequent harm arising from that wrongdoing would normally amount to splitting a cause of action. [Citation.]” (Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, 1622, 2 Cal.Rptr.2d 796.)
California case law has turned, for possible exceptions, to language in the Restatement Second of Judgments identifying circumstances where, for example, a first judgment is “plainly inconsistent with the fair and equitable implementation of a statutory ․ scheme ․ ” (Rest.2d Judgments, § 26(1)(d)) or “[i]t is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason ․ ” (id., § 26(1)(f)). (Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316, 327, 164 Cal.Rptr. 591 [as formerly proposed in tentative draft form].)
Harsh results can arise under California law when an ordinary statute of limitations is used for a plaintiff who suffers a progressive occupational disease. (Martinez-Ferrer v. Richardson-Merrell, Inc., supra, 105 Cal.App.3d 316, 326-327, 164 Cal.Rptr. 591 [allowing a split cause of action for latent disease from toxics exposure]; see generally Miranda v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1659, 26 Cal.Rptr.2d 655.) Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect his or her injury was caused by someone's wrongdoing. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110, 245 Cal.Rptr. 658, 751 P.2d 923.) The discovery rule itself was judicially engrafted onto the law to help ameliorate harshness in cases of progressive occupational disease. (Blakey v. Superior Court (1984) 153 Cal.App.3d 101, 104-105, 200 Cal.Rptr. 52; Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 887-888, 159 Cal.Rptr. 113.) Nevertheless, harshness may persist with asbestos-related disease, for there may be early discovery of some harm yet a latency period of 15 to 35 years for the most serious diseases to develop. This might force a plaintiff to bring suit far in advance of his or her most significant injury (Blakey v. Superior Court, supra, 153 Cal.App.3d at p. 105, 200 Cal.Rptr. 52; Puckett v. Johns-Manville Corp. (1985) 169 Cal.App.3d 1010, 1017, 215 Cal.Rptr. 726) and when more serious future harm is speculative.
Alleviating harshness in the application of ordinary statutes of limitations to asbestos-related claims is what has driven several jurisdictions outside our own to allow a plaintiff to split a cause of action and bring separate suit for a later-stage, asbestos-related cancer like mesothelioma. (E.g., Marinari v. Asbestos Corp., Ltd. (1992) 417 Pa.Super. 440, 612 A.2d 1021, 1022, 1027-1028; Potts v. Celotex Corp. (Tenn.1990) 796 S.W.2d 678, 680-685; Fusaro v. Porter-Hayden Co. (1989) 145 Misc.2d 911, 548 N.Y.S.2d 856, 858-860; Sheppard v. A.C. & S. Co. (Del.Super.1985) 498 A.2d 1126, 1129-1134; Eagle-Picher Industries, Inc. v. Cox (Fla.App.1985) 481 So.2d 517, 519-524; Devlin v. Johns-Manville Corp. (1985) 202 N.J.Super. 556, 495 A.2d 495, 500-503; Jackson v. Johns-Manville Sales Corp. (5th Cir.1984) 727 F.2d 506, 516-522; Pierce v. Johns-Manville Sales Corp. (1983) 296 Md. 656, 464 A.2d 1020, 1025-1028; Wilson v. Johns-Manville Sales Corp. (D.C.Cir.1982) 684 F.2d 111, 115-121; cf. Ayers v. Jackson Tp. (1987) 106 N.J. 557, 525 A.2d 287, 300 [toxics exposure generally].)
In California, however, we do not have an ordinary statute of limitations. Potential harshness has been all but eliminated through the enactment of section 340.2, by which the Legislature has not only codified the discovery rule but allowed plaintiffs to escape all time constraints until they reach the point of disability. (Blakey v. Superior Court, supra, 153 Cal.App.3d 101, 107, 200 Cal.Rptr. 52.) By then, of course, a plaintiff has experienced severe loss, and the action is no longer anticipatory nor the damages speculative. Further, if as often happens, injury does not reach a disabling degree until after a plaintiff has retired, the statute never commences to run (Duty v. Abex Corp., supra, 214 Cal.App.3d 742, 749-751, 263 Cal.Rptr. 13); the plaintiff may delay bringing suit indefinitely. The author of the bill creating section 340.2 expressly identified a legislative purpose “'to relieve victims of asbestos-related diseases from a potentially harsh application of [a] statute of limitations which was designed not for disease claims but for victims of traumatic injury.'․” (Blakey v. Superior Court, supra, 153 Cal.App.3d 101, 105, 200 Cal.Rptr. 52.)
Under the extraordinarily accommodating provisions of section 340.2, there are simply no exceptional circumstances to justify a departure from the rule against splitting a cause of action. We decline to announce one.
III. General Order No. 27
Mitchell invokes San Francisco Superior Court General Order No. 27, which he argues extended a “promise” that he could split his cause of action and file again should he develop cancer. Because no published opinion has directly questioned the order since its issuance in 1985, he urges that we should abrogate the order-i.e., bar a second action under the rationale of Darden -only prospectively. We briefly examined a similar argument in Barr but found the general order inapplicable, and the issue thus moot, since the plaintiff had actually alleged cancer-related injury in his first action. (Barr, supra, 57 Cal.App.4th 1038, 1058-1059, 67 Cal.Rptr.2d 494.) Here Mitchell did not allege cancer-related injuries in his first action, but his claim fails for different reasons.
It is first helpful to examine the effect of the order, for it raises considerable doubt whether many plaintiffs would have relied on its asserted cause-splitting component. The order itself actually does not address splitting a cause of action. Rather, it addresses the circumstances under which an asbestos plaintiff in a pre-cancer action may introduce evidence of, and recover damages for, emotional distress and medical monitoring costs caused by an increased risk of contracting cancer. The order issued on April 10, 1985, and was largely supplanted by Supreme Court authority eight years later. The December 1993 opinion in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795 (Potter ), addressed the same issues in the broader context of toxics exposure cases generally. In a case like Mitchell's, where his first action was filed two months before Potter and when plaintiffs' counsel in this specialized area of the bar must have known of the imminence of the high court decision in Potter, one can question how much reliance was placed on the general order. Nothing in our record, incidentally, expressly shows such reliance.
Further eroding the prospect of actual reliance is that Mitchell invokes not the general order itself, but part of the order's rationale as expressed in a simultaneously issued memorandum opinion. One provision of the order was that a pre-cancer plaintiff could not recover for increased risk of developing cancer, and the memorandum opinion gave three supporting reasons. First, the prospect of developing cancer was speculative and, even if found to be a reasonable certainty, apt to result in compromise jury awards. Second, given the enormity of the asbestos litigation problem, recovery could seriously diminish defendants' continued ability to respond in damages. Third, and only in this one aspect pertinent to Mitchell's argument, if plaintiffs are currently precluded from such recovery, then “elementary fairness requires the assurance that upon contracting the disease [they] will not be legally barred from pursuing a remedy if and when cancer develops․” For this proposition, the memorandum opinion cited two of the out-of-state cases we have already examined and found inapplicable to section 340.2, a special statute enacted to rectify hardships arising from usual statutes of limitation (part II, ante ).
But assuming a plaintiff might have actually relied on the general order's split-cause-of-action rationale in filing an action in the San Francisco Superior Court, the next question is whether that reliance was justified. A statute controls over any inconsistent local rule (Gov.Code, § 68070, subd. (a); Butterfield v. Butterfield (1934) 1 Cal.2d 227, 228, 34 P.2d 145; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 28, 210 Cal.Rptr. 762, 694 P.2d 1134) or policy (Los Angeles County Dept. of Children etc. Services v. Superior Court (1996) 51 Cal.App.4th 1257, 1267, 59 Cal.Rptr.2d 613; Wisniewski v. Clary (1975) 46 Cal.App.3d 499, 504-505, 120 Cal.Rptr. 176), and a local general order is but a manifestation of a local rule or policy for this purpose (Cal. Rules of Court, rule 981(b)(2)). Thus to the extent that the split-cause-of-action rationale underlying General Order No. 27 was inconsistent with section 340.2, section 340.2 controlled.
The Supreme Court in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 67 Cal.Rptr.2d 16, 941 P.2d 1203 (Rutherford ), recently examined an analogous conflict. A Solano County Superior Court general order, also issued for asbestos litigation, had prescribed an instruction shifting to defendants the burden of proving, once harm from asbestos exposure was shown, that the defendant's particular product did not cause the plaintiff's injuries. (Id. at p. 965, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) The court began: “[R]egardless of their source of authority, ‘trial judges have no authority to issue courtroom local rules which conflict with any statute’ or are ‘inconsistent with law.’ [Citations.]” (Id. at p. 967, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) Thus if the burden-shifting instruction conflicted with any statewide statute, rule of law or Judicial Council rule, it was an inappropriate exercise of rulemaking powers and an invalid exercise of the court's inherent judicial powers. (Id. at pp. 967-968, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) The Supreme Court thus “question[ed] the propriety” of the general order having embodied the burden-shifting device but stopped short of deciding. It held instead that “the theoretical predicate for a burden shift on causation” was “lacking.” (Id. at p. 968, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) Shifting the burden had constituted “a fundamental departure” from tort causation principles and could “only be justified on a showing of necessity[,]” which the order lacked. (Id. at p. 969, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) Interestingly, Potter said nothing about potential reliance on the general order preventing retrospective application of the holding invalidating the order.
To capsulize what we have already observed in part II (ante ), the rule against splitting a cause of action is fundamental to California tort law, has been departed from only in exceptional circumstances demanding the avoidance of peculiarly harsh results, and cannot be abrogated in the operation of section 340.2, a special statute expressly designed to alleviate harshness in asbestos actions. Section 340.2 had been in effect over five years before General Order No. 27 was issued. (Stats.1979, ch. 513, § 1, pp. 1689-1690; Barr, supra, 57 Cal.App.4th 1038, 1047, 67 Cal.Rptr.2d 494.) Given the greatly accommodating statute of limitations section 340.2 provided, the order had no policy predicate for departing from the fundamental rule against splitting a cause of action. The general order could not in these circumstances engender reasonable reliance.
Nor was the Darden reaffirmation of the no-splitting rule, in the section 340.2 context, an unforeseeable event justifying prospective-only application. We have held elsewhere that Darden is entitled to the usual rule of full retrospective effect. (Barr, supra, 57 Cal.App.4th 1038, 1052-1053, 67 Cal.Rptr.2d 494.) We add here that the case law did not point to abandonment of the no-splitting rule, either in 1985 when the general order was issued, or in 1995 when Darden was decided. One case did hold in 1980 that injury from long-term ingestion of an anticholesterol drug created a special hardship allowing one plaintiff to bring a second action, beyond the governing one-year statute. The case also spoke of “a trend away from an unthinking enforcement of the rules” and, more metaphorically, of a rising “wind” blowing “away from a blind adherence to rigid concepts of what constitutes a cause of action․” (Martinez-Ferrer v. Richardson-Merrell, Inc., supra, 105 Cal.App.3d 316, 326-327, 164 Cal.Rptr. 591.) This portent, however, never came to pass and by 1987 was sternly criticized as dictum inconsistent with binding Supreme Court precedent. (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1024-1025, 242 Cal.Rptr. 368.) That criticism then mounted in a case which found no exception for an allergy/asthma sufferer who had experienced long-term exposure to molds. (Miller v. Lakeside Village Condominium Assn., supra, 1 Cal.App.4th 1611, 1625-1627, 2 Cal.Rptr.2d 796.)
Then in early 1993, still months before Mitchell filed his first action, a plaintiff in a non-asbestos toxics exposure case was held barred from splitting her cause of action, despite hardship, the court noting: “We neither overlook nor underestimate the dilemma posed to a toxic-tort plaintiff by the single cause of action principle. [Citation.] The time between exposure to toxins and the onset of disease may, and likely will, be long. The plaintiff who secures an award for immediate physical injury, monitoring costs, or some other proper item of damage, might be foreclosed from recovering damages in a second suit filed when the disease actually develops, years, perhaps decades, after the exposure, on the ground a cause of action cannot be ‘split.’ [Citation.] The problem is magnified if the plaintiff is unable to recover, in the first action, damages for the increased risk of disease. In addition, statute of limitations rules may prevent the plaintiff from waiting until the disease develops before bringing an action. [Citations.]” (Miranda v. Shell Oil Co., supra, 17 Cal.App.4th 1651, 1659, 26 Cal.Rptr.2d 655.) The court offered, “Although judicial solution may be possible [citations], we encourage the Legislature to look into the matter.” (Ibid.)
For the narrow subset class of asbestos-related actions, of course, the Legislature had already looked into the matter and in 1979 specially crafted section 340.2 to reduce hardship in applying the limitation period. When Darden held in October 1995 that this legislation conformed to the rule against splitting a cause of action, the result should have come as no surprise. The language of section 340.2, coupled with the backdrop of cases holding to the no-splitting rule generally, made the result in Darden predictable.
We reject Mitchell's invitation to give Darden and our own decision only prospective effect. “Unlike statutory enactments, judicial decisions, particularly those in tort cases, are generally applied retroactively. [Citation.] But considerations of fairness and public policy may require that a decision be given only prospective application. [Citations.] Particular considerations relevant to the retroactivity determination include the reasonableness of the parties' reliance on the former rule, the nature of the change as substantive or procedural, retroactivity's effect on the administration of justice, and the purposes to be served by the new rule. [Citations.]” (Woods v. Young (1991) 53 Cal.3d 315, 330, 279 Cal.Rptr. 613, 807 P.2d 455.) Any reliance on the former “rule” or “promise” of General Order No. 27 was unreasonable. Also, the order was of limited local rather than statewide impact and was at odds with both the language of section 340.2 and the general case law against splitting a tort cause of action.
IV. Waiver or estoppel
We next explore whether ACL waived or was estopped to assert the statute. We find neither theory supported by the record.
Waiver. Waiver of the statute of limitations typically occurs through failure to plead, or adequately plead, the defense (Hall v. Chamberlain (1948) 31 Cal.2d 673, 679-680, 192 P.2d 759), which is not the case here. ACL answered in part, as a seventh affirmative defense, the action was “barred by the provisions of Code of Civil Procedure ․ [section] 340.2․” While ACL evidently did not yet know it had been named in the unserved prior action at the time it answered, this general pleading language was sufficient (§ 458). Waiver also may, and ordinarily must, be accomplished by a signed writing (§ 360.5), but there is no such writing in the record.
What we have, then, is a pleaded defense where waiver, if any, occurred through ACL's conduct. We are aware of no case finding a waiver on facts like these. Mitchell's sole cited case is one where the statute, while pleaded, was never raised, either at trial or on appeal. The discussion is also dictum, the court ruminating in a footnote about an issue not raised or briefed. (RRLH, Inc. v. Saddleback Valley Unified School Dist. (1990) 222 Cal.App.3d 1602, 1605-1606, fn. 2, 272 Cal.Rptr. 529.) Our case is easily distinguished. ACL vigorously raised the statute at trial, before the close of evidence and again in posttrial motions, and raises the issue now on appeal. Case law allows an answer to be amended to plead the statute after a trial is over (Schriber v. Alameda etc. Title Ins. Co. (1958) 156 Cal.App.2d 700, 708-709, 320 P.2d 82), and no authority of which we are aware remotely suggests that a timely-pleaded defense is lost by waiting until just before the close of evidence to argue it. It may in fact be unclear in a given case whether the defense is valid until all evidence is in, and case law appears to require only that the defense be at some point affirmatively invoked in the lower court (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 107, fn. 2, 54 Cal.Rptr.2d 669). ACL did affirmatively invoke the pleaded defense here.
Viewing waiver generally as the voluntary and intentional relinquishment of a known right, in this case as implied from conduct (Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739, 754-755, 161 Cal.Rptr. 322), there is no support for the trial court's finding, even under the deferential review standard of substantial evidence (In re Marriage of Paboojian (1987) 189 Cal.App.3d 1434, 1438, 235 Cal.Rptr. 65). The most one can say is ACL should have been more vigilant in discovering whether it had been named in the first action. Tardy discovery of the fact, however, does not show intentional relinquishment of a known right, and ACL wasted no time in raising the argument once it discovered the prior naming, prompted by the court's chance comment, midtrial, about this being a consolidated matter. Not even the court apparently knew until then that ACL had been named as a defendant in Mitchell I. Lack of knowledge by ACL also defeats Mitchell ' s reliance on ACL having failed to object to the admission of evidence about pre-mesothelioma ailments. Also, counsel for ACL could have felt that the Mitchell II complaint-the only one with which ACL was served-covered certain pre-mesothelioma ailments through language alleging injury “including, but not limited to breathing difficulties [and] asbestosis․” The record therefore does not support the waiver finding.
Estoppel. The court's estoppel finding rests apparently on Mitchell having been misled, by ACL's tardy reliance on the Darden argument, into proceeding with the trial, to his detriment. This is certainly a supported observation, and we assume for purposes of estoppel that ACL's misleading conduct did not have to be undertaken with fraudulent design (Ginns v. Savage (1964) 61 Cal.2d 520, 524-525, 39 Cal.Rptr. 377, 393 P.2d 689). However, the crux of estoppel to assert the statute of limitations is conduct inducing the plaintiff to delay commencing the action (id. at p. 524, 39 Cal.Rptr. 377, 393 P.2d 689; Benner v. Industrial Acc. Com. (1945) 26 Cal.2d 346, 349-350, 159 P.2d 24; Barr, supra, 57 Cal.App.4th 1038, 1056, 67 Cal.Rptr.2d 494; see generally 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 685, pp. 872-873), and nothing in the record suggests ACL did anything to induce the filing of Mitchell II beyond the one-year period (§ 340.2). Prejudice of the sort Mitchell experienced by relying on ACL's conduct at the trial, after the action was already untimely filed, is immaterial.
As a matter of law on these facts (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305, 61 Cal.Rptr. 661, 431 P.2d 245), the finding of estoppel is not supported.
V. General appearance in consolidated first action
Last, we explore whether, as the trial court reasoned, ACL's participation in the consolidated actions constituted a general appearance in the unbarred but unserved first action, Mitchell I. “Except as otherwise provided by statute, the court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10). A general appearance by a party is equivalent to personal service of summons on such party.” (§ 410.50, subd. (a).)
“‘Appearance”’ by a defendant is statutorily defined as filing an answer, demurrer, motion to strike or transfer, or giving the plaintiff written notice of appearance or having counsel give notice of appearance. (§ 1014.) None of that occurred here. Nevertheless, the statutory definition “is not exclusive. [Citation.] Thus a general appearance need not be “‘a formal, technical step or act ․ ”’ [citation]; rather the term may apply to various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person. [Citation.] What is determinative is whether defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed. [Citations.]” (Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1397, 250 Cal.Rptr. 787 (Sanchez ).)
In that light, a vital threshold question is whether the consolidation was for all purposes or, as ACL maintained, only for purposes of trial. “There are two types of consolidation: a complete consolidation resulting in a single action, and a consolidation of separate actions for trial. Under the former procedure, which may be utilized where the parties are identical and the causes could have been joined, the pleadings are regarded as merged, one set of findings is made, and one judgment is rendered. In a consolidation for trial, the pleadings, verdicts, findings and judgments are kept separate; the actions are simply tried together for the sake of convenience and judicial economy. [Citation.]” (Sanchez, supra, 203 Cal.App.3d at p. 1396, 250 Cal.Rptr. 787.) A consolidation for all purposes results in a merger of the actions and a general appearance, while a consolidation for trial does not. (Id. at pp. 1395-1399, 250 Cal.Rptr. 787.) Consolidation for trial “does not affect the rights of the parties. The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions. [Citation.]” (Wouldridge v. Burns (1968) 265 Cal.App.2d 82, 86, 71 Cal.Rptr. 394.)
On the nature of the consolidation here, the court announced the record would “speak for itself” and read aloud the consolidation order, saying its ruling did not “turn on that distinction” in any event. As it turns out, the order is of little help; it only states the two actions are “consolidated.” To discern the nature of a consolidation, however, courts look beyond the order, to the full circumstances surrounding its making. (E.g., McClure v. Donovan (1949) 33 Cal.2d 717, 722-723, 205 P.2d 17 [trial only]; Stanton v. Superior Court (1927) 202 Cal. 478, 484-485, 261 P. 1001 [all purposes].)
A strong indicator here is the language of Mitchell's motion to consolidate (cf. Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 702, 38 Cal.Rptr.2d 413), which proposed the ambiguous order signed by the court but unambiguously requested consolidation only for trial. Invoking the court's statutory power to consolidate for common questions of law or fact (§ 1048, subd. (a)) and case law principles pertaining to consolidation for trial, he argued: evidence in one trial was applicable to the other only to the extent relevant (citing McClure v. Donovan, supra, 33 Cal.2d 717, 722, 205 P.2d 17); consolidation was proper even though the parties were not identical (citing Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867, 245 P.2d 608); and consolidation would not affect the rights of the parties but merely promote trial convenience and economy (citing Wouldridge v. Burns, supra, 265 Cal.App.2d 82, 86, 71 Cal.Rptr. 394).
The need to preserve the rights of the parties in each case is illuminated by the service list on the motion, which shows more than a dozen defendants besides ACL were served. While the record of settlements is not before us, a comparison with earlier service lists in each case suggests there were three remaining defendants in Mitchell II. ACL had answered the complaint in Mitchell II just the day before the April 12, 1996, motion. The court granted the motion on April 30, and trial with ACL as the sole remaining defendant would not begin until July 31.
Had ACL been the only defendant when consolidation was ordered, a stronger argument for full consolidation could be made, although the existence of even identical parties is not controlling. (See, e.g., Sanchez, supra, 203 Cal.App.3d 1391, 1396-1397, 250 Cal.Rptr. 787; McClure v. Donovan, supra, 33 Cal.2d 717, 722-723, 205 P.2d 17; Staub v. Muller (1936) 7 Cal.2d 221, 224-225, 60 P.2d 283; Stanton v. Superior Court, supra, 202 Cal. 478, 484, 261 P. 1001; Johnson v. Marr (1935) 8 Cal.App.2d 312, 313-314, 47 P.2d 489.) Given multiple defendants and the nature of the motion Mitchell made, however, the only reasonable conclusion is that the consolidation was for purposes of trial only. This construction is also consistent with ACL's lack of opposition to the motion, for its counsel would have felt there was little point in objecting and little prejudice from consolidation.
Nothing beyond ACL's bare participation in the consolidated trial suggests it recognized the authority of the court to proceed over it with regard to Mitchell I. Such participation alone is insufficient to constitute a general appearance. (Sanchez, supra, 203 Cal.App.3d 1391, 1397-1399, 250 Cal.Rptr. 787.) We see no filings, stipulations or other actions by ACL which we could reasonably equate with a consent to jurisdiction. In fact, ACL argued Mitchell II was time-barred as soon as counsel became aware of the consolidated Mitchell I having named ACL. It is surprising that ACL's counsel took so long after all other defendants had settled out to appreciate the inappropriateness of proceeding with consolidated cases, but nothing in this delayed reaction connotes a consent to personal jurisdiction in Mitchell I. Accordingly, it is unnecessary to decide how much of the jury award might be salvaged as responsive to the Mitchell I allegations.
The second action, Mitchell II, was time-barred (§ 340.2), and the court lacked personal jurisdiction over ACL in the consolidated but unserved first action, Mitchell I. Accordingly, the judgment is reversed.
LAMBDEN, Associate Justice.
KLINE, P.J., and HAERLE, J., concur.