SAAF v. MIRISE

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Court of Appeal, Fifth District, California.

Richard W. SAAF et al., Plaintiffs and Appellants, v. Raymond MIRISE, M.D., Defendant and Respondent.

No. F014193.

Decided: January 28, 1992

Richard W. Saaf, in pro. per. Donald J. Horvath, Fresno, for plaintiffs and appellants. McCormick, Barstow, Sheppard, Wayte & Carruth, Lawrence E. Wayte and David H. Bent, Fresno, for defendant and respondent.

OPINION

In this opinion, we hold that when a demurrer is sustained without leave to amend as to some of the causes of action in a complaint leaving others remaining, a subsequent dismissal of the action for delay in prosecution does not render moot our review of the propriety of the order on demurrer.

STATEMENT OF THE CASE

On January 6, 1988, Richard W. Saaf, acting in propria persona, filed a form complaint on behalf of himself and Winston A. Saaf against defendant alleging negligence generally and seeking compensatory damages according to proof.   Defendant demurred to the complaint and, prior to hearing on the demurrer, a first amended complaint for wrongful death was filed on March 15, 1988.   This complaint added Susan M. Hamnquist as a plaintiff and alleged that Winston A. Saaf was the husband and Richard W. Saaf and Susan M. Hamnquist were the son and daughter, respectively, of Eleanor L. Saaf who died on September 30, 1986, as a proximate result of the administration of methotrexate therapy by defendant.   Thereafter, defendant's demurrers to the first amended complaint and the second amended complaint, which alleged the date of death as October 5, 1986, were sustained with leave to amend.

The third amended complaint set forth causes of action for wrongful death, fraud, intentional concealment, negligent misrepresentation, negligence, strict liability and breach of implied and express warranty.

On January 11, 1989, defendant's demurrer to the third amended complaint was sustained without leave to amend as to all but the second cause of action for fraud.   The court ruled these causes of action were time barred.

On January 22, 1990, defendant filed a motion to dismiss the action for delay in prosecution under California Rules of Court, rule 372.   Following a hearing on March 14, 1990, the motion was granted and a formal order dismissing the entire action was entered on March 23, 1990.

On May 21, 1990, plaintiffs, still acting in propria persona, filed their notice of appeal from the March 23, 1990, dismissal order.   On June 5, 1990, plaintiffs filed their first amended notice of appeal “from the order dismissing action entered herein on March 23, 1990, and all causes of action as stated in plaintiff's THIRD AMENDED COMPLAINT and subsequent order dated January 11, 1989.”

DISCUSSION

Whether the trial court abused its discretion in dismissing plaintiffs' action for delay in prosecution.

Code of Civil Procedure 1 section 583.420 provides a trial court may dismiss an action for delay in prosecution two years after it is commenced if the Judicial Council has adopted a rule authorizing such a dismissal.  (§ 583.420, subd. (a)(2)(B).)   Such a rule was adopted effective January 1, 1990.  (Cal. Rules of Court, rule 372.)   On January 22, 1990, defendant filed a motion to dismiss plaintiffs' second cause of action pursuant to this rule.   Plaintiffs contend the trial court abused its discretion in dismissing their action.

 A court is to be guided by the policy favoring trial on the merits over dismissal for failure to prosecute with reasonable diligence.  (§ 583.130;  Cal.Rules of Court, rule 373(e).)   Nevertheless, this policy will prevail only if a plaintiff makes some showing of excusable delay.  (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 347, 228 Cal.Rptr. 504, 721 P.2d 590.)   Thus, in order to avoid dismissal for delay in prosecution, a plaintiff must show a reasonable excuse for such delay;  once he makes that showing, the trial court must then consider all pertinent factors, including prejudice to defendant from the delay, before deciding whether or not to dismiss.   (Cordova v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526, 1533, 242 Cal.Rptr. 605.)

 When the trial court has ruled on a dismissal motion, a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power unless a clear case of abuse is shown and unless there has been a miscarriage of justice.   Although the trial court's discretion is not wholly unfettered, the burden is on the party complaining to establish an abuse of discretion.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58.)   Where the plaintiff fails to make a sufficient showing of excusable delay, the trial court does not abuse its discretion in granting defendant's motion to dismiss.  (Cubit v. Ridgecrest Community Hospital (1987) 194 Cal.App.3d 1552, 1566–1567, 240 Cal.Rptr. 346.)

 Here, between the date the demurrer to the third amended complaint was heard, January 6, 1989, and the date the motion to dismiss was filed, January 22, 1990, plaintiffs took no action on the case.   Further, the only activities plaintiffs engaged in during the preceding year were to respond to defendant's demurrers and to file three amended complaints.   Plaintiffs offered no excuse for their failure to prosecute the case except to say they were waiting for defendant to contact them.   Thus, plaintiffs did not make a sufficient showing of excusable delay.

In arguing the trial court abused its discretion, plaintiffs contend the court should have given great weight to the fact that the law permitting a dismissal after two years did not become effective until January 1, 1990.   However, the court's expression of concern regarding the retroactivity of this rule indicates the court considered the rule's recent effective date when deciding the motion.

 Plaintiffs also argue the trial court failed to consider an important factor in deciding the motion, i.e., the lack of prejudice to defendant from the delay.   Plaintiffs further contend the trial court applied an incorrect legal standard when it stated prejudice to the defendant was not material to the motion to dismiss.   However, before prejudice to the defendant becomes material, the plaintiff must make some showing of excusable delay.   (Cordova v. Vons Grocery Co., supra, 196 Cal.App.3d 1526, 1533, 242 Cal.Rptr. 605.)   No such showing was made here.   Thus, the trial court did not apply an incorrect rule.   Under these circumstances, the trial court did not abuse its discretion when it granted defendant's motion to dismiss.

 Plaintiffs further allege the motion to dismiss was untimely as to plaintiff Susan Hamnquist because, as of the hearing on March 14, 1990, two years had not yet passed since she filed her complaint.   However, Ms. Hamnquist did not file a separate complaint.   Rather, she was added as a plaintiff in the first amended complaint filed March 15, 1988.

When recovery is sought in both pleadings on the same general set of facts, the amended complaint relates back to the filing of the original complaint, even when a new plaintiff is added.  (Jensen v. Royal Pools (1975) 48 Cal.App.3d 717, 720–721, 121 Cal.Rptr. 805.)   Ms. Hamnquist was not seeking to enforce an independent right or impose greater liability on the defendant.   (Cf. Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 124 Cal.Rptr. 370.)   Thus, the addition of Ms. Hamnquist related back to the original complaint filed January 6, 1988, and the motion to dismiss for lack of prosecution was timely.

Status of Demurred Causes

 Our decision that the action was properly dismissed does not resolve the implicit issue of the status of the causes of action upon which the demurrer was sustained without leave to amend (hereafter collectively and simplistically referred to as “wrongful death causes”).

Previously, we noted the legal maxim that courts are to be guided by a policy favoring trial on the merits over dismissal for failure to diligently prosecute.   In our resolution of the issue we now address, we will decide whether this maxim is merely an overworn cliche or is, in fact, a viable principle of law.

 It cannot be disputed that from the time defendant's demurrer to the third amended complaint was sustained without leave to amend on January 11, 1989, to the time the court entered its order dismissing the action on March 23, 1990, plaintiffs were without redress to attack the sufficiency of the order sustaining the demurrer, except by extraordinary writ.   An order sustaining a demurrer without leave to amend is not appealable when a cause of action remains after other causes of action are successfully eliminated.   (Mather v. Mather (1936) 5 Cal.2d 617, 618, 55 P.2d 1174.)   The reason for its nonappealability is the application of the “one final judgment” rule.   (Bank of America v. Superior court (1942) 20 Cal.2d 697, 701, 128 P.2d 357.)

“ ‘ “There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it was entered, and finally determines the rights of the parties in relation to the matter in controversy.” ’ ”  (Id. at pp. 701–702, 128 P.2d 357;  see also Potvin v. Pacific Greyhound Lines, Inc. (1933) 130 Cal.App. 510, 512, 20 P.2d 129.)

The stated right to challenge by extraordinary writ the order sustaining the demurrer without leave to amend is itself, illusory.   Such writs are rarely granted, on the premise that the petitioner has an adequate remedy by appeal from a subsequent judgment.  (Cf. Bank of America v. Superior Court, supra, 20 Cal.2d at p. 703, 128 P.2d 357.)

Here, the order of the trial court on January 11, 1989, had the practical effect of staying the prosecution of the sustained counts while the remaining count continued.

It can be argued that plaintiffs had a choice of remedies.   They could have voluntarily dismissed the remaining cause of action for fraud, requested a judgment of dismissal of the wrongful death causes of action and then challenged the efficacy of the demurrer on appeal.   This sequence would have been required because it is only from the ensuing judgment after a demurrer is sustained that an appeal can be taken.  (Berri v. Superior Court (1955) 43 Cal.2d 856, 860, 279 P.2d 8.)

 However, one problem with this approach is its potential effect on the viability of the cause of action for fraud.   It is generally held that a dismissal granted at the request of the plaintiff is not appealable since he is not an aggrieved party.   It was his request (for dismissal) that was granted.  (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 762, 157 P.2d 868.)   An exception to this general rule exists in cases where a demurrer has been sustained.   In that situation, the plaintiff may request that judgment be entered and an appeal may then be taken from the judgment.   (California Ammonia Co. v. Macco Corp. (1969) 270 Cal.App.2d 429, 433, 75 Cal.Rptr. 753.)   Of course, the appeal would challenge the order sustaining the demurrer and could not include the cause of action (fraud) unaffected by the order on demurrer.   Assuming that the plaintiff (appellant) then prevails on appeal, it appears that the only way the fraud cause of action could be refiled is if the statute of limitations has not run on that cause of action.   (See Stephan v. American Home Builders (1971) 21 Cal.App.3d 402, 407, 98 Cal.Rptr. 354.)

As can be concluded from the discussion above, plaintiffs, by electing this course of action, could be forced to expend one cause of action to avail themselves of their right to challenge the court's ruling on the other causes of action, a veritable Hobson's choice.

The second alternative is equally unattractive.   Plaintiffs could have diligently prosecuted the fraud cause of action and thereby preserved their right to appeal the order on the demurrer upon final judgment after trial.   (Cf. Potvin v. Pacific Greyhound Lines, Inc., supra, 130 Cal.App. 510, 512, 20 P.2d 129.)   While we can only speculate as to the relative merit of the causes of action affected and unaffected by the demurrer, we can readily ascertain the waste of judicial economy and the increased cost to the parties of being required to proceed through trial just to preserve the right to appeal the order on the demurrer.   The inefficacy of such an approach is compounded in cases where the cause of action remaining involves damages which are scant compared to the causes of action sought to be preserved.

The Wrongful Death Causes Were “Tried”

Finally, the issue of whether the court's dismissal of the action precludes review of the propriety of the ruling on demurrer can be resolved by scrutiny of the applicable statutes.2

As noted above, defendant filed a notice of motion, “in accordance with the provisions of California Rules of Court, Rule 372, Code of Civil Procedure Section 583.410(b) and 583.420(a)(2)(B),3 for an order dismissing the ․ action for want of prosecution, and that the plaintiff has not brought the ․ action to trial within two (2) years of its filing date․”   Upon that motion, the action was dismissed.

In a case involving dismissal of an action for failure to bring it to trial within five years pursuant to former section 583, it was held

“[since] the sustaining of the demurrers herein without leave to amend, followed by judgments for the defendants, constituted a ‘trial’ within the meaning of section 583 of the Code of Civil Procedure, we conceive it to be unnecessary to examine and decide the contentions of appellants that upon the reversal of the judgments herein, the actions were not subject to dismissal under the provisions of section 583 of the Code of Civil Procedure because they were brought to trial within a period of three years after the remittitur of the appellate court was lodged with the clerk of the trial court and, that in computing the period of five years within which an action must be brought to trial under the provisions of section 583 of the Code of Civil Procedure, where a final judgment has been entered upon an order sustaining a demurrer to the complaint without leave to amend, followed by an appeal and reversal of the judgment, the time elapsing between the filing of the demurrer and the final determination of the appeal must be excluded.”  (Smith v. City of Los Angeles (1948) 84 Cal.App.2d 297, 305, 190 P.2d 943.)

Although we are dealing with a dismissal granted on the basis of a delay in prosecution pursuant to California Rules of Court, rule 372, rather than a mandatory dismissal under the five-year rule pursuant to section 583 (renumbered as section 583.310), application of the general principles espoused in Smith would also require excluding from the computation of time relative to rule 372, the period from the date the demurrer was sustained to the date the motion for dismissal was filed.

Parenthetically, we note that a hearing resulting in an order overruling a motion for demurrer does not constitute a trial for purposes of former section 583.  (Berri v. Superior Court, supra, 43 Cal.2d at p. 858, 279 P.2d 8.)

More significantly, we must conclude that the only judgment which could properly be granted as to the wrongful death causes of action is a judgment of dismissal specifically entered to allow the plaintiff “to test the correctness of the court's ruling.”  (43 Cal.2d at p. 860, 279 P.2d 8.)

A judgment of dismissal could not have been properly entered on the basis of a delay in prosecution as to the wrongful death causes of action because they had been “tried” within two years of the filing of the complaint.

“ ‘A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue.   When a court hears and determines any issue of fact or of law for the purpose of determining the rights of the parties, it may be considered a trial.’  (Emphasis added.)

“We are persuaded that such an issue was presented on the hearings of the demurrers, grounded on the claim that plaintiffs' complaints did not state facts sufficient to constitute a cause of action.   The trial of the issues thus presented was the trial of the cause as a cause and not the settlement of a mere matter of form in procedure.   When the final judgments were entered on the sustaining of the demurrers, it was a final determination of the rights of the parties, and could be pleaded in bar to any other suit for the same cause of action.

“The foregoing definition of a ‘trial’ includes trials which involve only questions of law.   General demurrers such as were here interposed, challenging as they did the sufficiency of the facts, went direct to the determination of the rights of the parties, and all rights involved in the complaints.   The judgments rendered herein, being upon orders sustaining demurrers without leave to amend, constitute a trial on the merits, based upon issues of law raised by such demurrers, and must be considered as judgments after trial․”  (Smith v. City of Los Angeles, supra, 84 Cal.App.2d at pp. 301–302, 190 P.2d 943.)

Where there has been a partial trial, the time consumed in certain proceedings, such as a demurrer granted without leave to amend, may be excluded.   The determination appears to revolve on the issue of the impracticality or impossibility of taking further proceedings with respect to prosecution of the action for a given period of time.  (Vanyek v. Heard (1971) 18 Cal.App.3d 467, 470–471, 95 Cal.Rptr. 750.)

In summary, we conclude that a trial was held on the causes of action upon which the demurrer was sustained and no trial was held on the fraud cause of action.   Therefore, the fraud cause of action was properly dismissed for delay in prosecution and the “other” causes of action were not, they had been brought to trial within two years within the meaning of California Rules of Court, rule 372.   Since trial had occurred, by definition, the action had been diligently prosecuted within the meaning of section 583.410.

Ruling on Demurrer

 We now address the merits of the court's ruling on demurrer.   As noted, the third amended complaint sets forth causes of action for wrongful death, fraud, intentional concealment, negligent misrepresentation, negligence, strict liability and breach of implied and express warranty.   The complaint alleges plaintiffs notified defendant of their intent to begin an action within 90 days on September 30, 1987.   However, the complaint also alleges plaintiffs “did not know of, and could not have known of, any malpractice on the part of the defendants until on or about February 5, 1988.”

The wrongful death cause of action in the third amended complaint is based on the allegation that defendant's improper administration of the drug methotrexate was the proximate cause of decedent's death.   The intentional concealment cause of action alleges that plaintiffs requested defendant's records on decedent in July 1987.   However, the last page of the attending physician's statement for the services defendant rendered to decedent on September 23, 1986, was missing.   It is alleged in the complaint that this page was discovered by plaintiffs in decedent's Medicare records on or about February 5, 1988, and contained the only reference to the September 23, 1986, methotrexate treatment.

On January 12, 1989, defendant's demurrer to the third amended complaint was sustained without leave to amend as to all but the second cause of action for fraud.   The court ruled these causes of action were time barred.   The court further struck from the complaint the allegation that plaintiffs did not know of and could not have known of the malpractice until on or about February 5, 1988.

Section 340.5 provides, in pertinent part:

“In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first․”

Defendant's position in demurring to the third amended complaint was that, under section 340.5, the statute of limitations in a wrongful death action alleging medical malpractice begins to run on the date of death of the plaintiffs' decedent, here October 5, 1986.   This position was apparently adopted by the trial court and was the basis for its order sustaining the demurrer without leave to amend.   However, this is an incorrect interpretation of section 340.5.   Although the date of death is the earliest date that the one-year statute of limitations for wrongful death can begin running, that period does not begin until the wrongful death heirs have either discovered, or should have discovered, the death's negligent cause.  (Frederick v. Calbio Pharmaceuticals (1979) 89 Cal.App.3d 49, 58–59, 152 Cal.Rptr. 292.)   Thus, it was error to sustain the demurrer on the sole basis the complaint was filed more than one year after the date of death.

Defendant is mistaken in his reliance on the case of Larcher v. Wanless (1976) 18 Cal.3d 646, 135 Cal.Rptr. 75, 557 P.2d 507 as being dispositive here.  Larcher was decided in the context of a peculiar set of facts and is inapposite.

In Larcher, defendant doctors were prescribing for Mrs. Larcher oral contraceptives for an extended period between 1966 and 1968.   A products liability case was initiated in July 1972 by the decedent (Mrs. Larcher) and her husband.   The complaint revealed that the decedent and her husband were made aware of the potentially negligent cause of injuries no later than the date of the filing of the products liability action.   Decedent died on January 12, 1974.   A wrongful death action was then filed on March 21, 1974.   (18 Cal.3d at pp. 651–652, 135 Cal.Rptr. 75, 557 P.2d 507.)   Upon motion properly filed, the trial court granted summary judgment, finding that the wrongful death complaint was time barred, since the plaintiffs had learned of decedent's injury in 1972 under section 340.5 and were compelled to file action within one year thereafter.  (Ibid.)

Finding inherent unfairness in an interpretation of the word injury as referring to the harm suffered by the direct victim of malpractice and as triggering the one-year filing mechanism, the Supreme Court held that “injury” in section 340.5, as applied to wrongful death actions, refers to the death of the decedent.  (18 Cal.3d at p. 659, 135 Cal.Rptr. 75, 557 P.2d 507.)   To hold otherwise would “bar many otherwise meritorious causes by the heirs of malpractice victims, simply because the victim remained alive for a year after the discovery of his maltreatment.”  (Id. at p. 653, 135 Cal.Rptr. 75, 557 P.2d 507.)

Moreover, Larcher does not address the situation at issue here, the allegation in the complaint that the negligent cause of death was not discovered until after the actual date of death.

On September 30, 1987, plaintiffs notified defendant of their intent to commence an action.   Section 364 requires that such notice be given to a health care provider at least 90 days before the action is filed.   When this notice is given in the last 90 days of the 1–year statute of limitations, that limitations period is tolled for 90 days.  (Woods v. Young (1991) 53 Cal.3d 315, 328, 279 Cal.Rptr. 613, 807 P.2d 455.)   The complaint was not filed within this extended period if the period is considered to begin on the date of death.   However, the third amended complaint alleges plaintiffs did not discover and could not have discovered the malpractice until February 1988.   If it is assumed this allegation is true, the complaint was timely.

 When ruling on a demurrer, the court must regard the allegations in the complaint as true and must liberally construe those allegations.  (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 20, 223 Cal.Rptr. 806.)   Here, however, the court struck plaintiffs' allegation regarding the delayed discovery of the malpractice on the ground that it was false.

A court may strike false, i.e., untrue, matters contained in a pleading whenever their falsity is revealed either on the face of the challenged pleading or by facts which are judicially noticed.  (§§ 436, 437;  Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21, 221 Cal.Rptr. 349.)   Here, the ground for striking the allegation that plaintiffs did not discover the malpractice until February 5, 1988, was that it was inconsistent with the allegation that plaintiffs notified defendant in September 1987 of their intent to commence an action.   However, these allegations are not mutually exclusive.   Of course, the plaintiffs were immediately aware of the decedent's death and that the decedent had been under defendant's care.   However, knowledge of these facts does not impute knowledge of the fact that defendant administered methotrexate to decedent, the alleged act of malpractice, shortly before her death.   Plaintiffs could reasonably have notified defendant of their intent to sue in an attempt to protect any potential malpractice claim before actually having knowledge of the alleged malpractice.   The notification to defendant does not automatically render plaintiffs' delayed discovery allegation false.   Thus, it was error for the trial court to strike this discovery allegation.

As noted above, the statute of limitations for wrongful death from alleged malpractice does not commence until the plaintiffs either discover or should have discovered the negligent cause of the death.   However, the plaintiff must specifically plead facts which show both the time and manner of the discovery and the inability to have made earlier discovery despite reasonable diligence.  (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 297, 146 Cal.Rptr. 271.)  “Mere conclusory assertions that delay in discovery was reasonable are insufficient and will not enable the complaint to withstand general demurrer.”  (Ibid.)

Here, the first cause of action sets forth such a conclusory assertion which, in and of itself, is insufficient to withstand general demurrer.   However, the complaint must be read as a whole to determine whether it contains sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.  (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6, 172 Cal.Rptr. 427;  Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719, 104 Cal.Rptr. 897.)

Although the delayed discovery allegation in the first cause of action is conclusory, the third cause of action sets forth the reasons for the delayed discovery in detail.   Plaintiffs allege they experienced difficulty in obtaining decedent's medical records.   They requested defendant's records concerning decedent in July 1987 but when the records were received, the last page of the physician's attending statement was missing.   When plaintiffs discovered this last page in February 1988 mixed among other documents received from Medicare, they first learned that decedent had been given a methotrexate treatment shortly before her death.   Thus, evaluating the complaint as a whole and regarding the allegations as true, the complaint is sufficient as against a dismissal based on statute of limitations grounds.   The trial court therefore erred in sustaining the demurrer to the wrongful death causes of action, without leave to amend.4

Accommodation of the One Final Judgment Rule

Again, however, our analysis of this issue is not complete.   We have already acknowledged that there can be but one final judgment in an action.  (Bank of America v. Superior Court, supra, 20 Cal.2d at pp. 701–702, 128 P.2d 357.)   Merely affirming the judgment of dismissal as to the fraud cause of action and reversing the dismissal as to the wrongful death causes, without more, would effectuate an impermissible severance of the action.  (Cf. Mather v. Mather, supra, 5 Cal.2d at p. 618, 55 P.2d 1174.)

We have already set forth the legal basis for our ruling on the wrongful death causes and the inherent “equity” therefor.   With that in mind, we are guided by the statutory authorization of section 43 5 and applicable case law allowing the appellate court to mold the judgment of the trial court into conformity with a correct determination of the rights of the parties.   (Williams v. S.C. Mining Association (1884) 66 Cal. 193, 196, 5 P. 85.)

Accordingly, we reverse the judgment of dismissal in its entirety and remand the case to the superior court with direction to the superior court to stay prosecution of the fraud cause of action pending final resolution of the case, at which time dismissal of the fraud cause of action shall be incorporated into the final judgment.

DISPOSITION

The judgment is reversed and the case is remanded to the superior court for proceedings consistent with this opinion.

FOOTNOTES

FN1. All statutory references are to the Code of Civil Procedure unless otherwise indicated..  FN1. All statutory references are to the Code of Civil Procedure unless otherwise indicated.

2.   Ironically, a dismissal granted for delay in prosecution will only be with prejudice if the time for refiling the same action has expired under the applicable statute of limitations.  (Cf. Stephan v. American Home Builders, supra, 21 Cal.App.3d 402, 406, 98 Cal.Rptr. 354.)   It is apparent that the statute of limitations applicable to each of the causes of action here would otherwise preclude their refiling.

3.   Section 583.420, subdivision (a)(2)(B) reads:  “Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.”

4.   We note that while the third cause of action (intentional concealment) incorporates the first cause of action (wrongful death), the first cause of action does not incorporate the third.   While a demurrer may have been correctly sustained because of its conclusory nature, it is abundantly clear that successful amendment could have been made to withstand further demurrer.

5.   Section 43 reads:  “The Supreme Court, and the courts of appeal, may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.   In giving its decision, if a new trial be granted, the court shall pass upon and determine all the questions of law involved in the case, presented upon such appeal, and necessary to the final determination of the case.   Its judgment in appealed cases shall be remitted to the court from which the appeal was taken.”

BUCKLEY, Associate Justice.

BEST, P.J., and REID, J.**, concur.

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