CASSEL v. DAY NITE PEST CONTROL INC

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Court of Appeal, Second District, Division 7, California.

Scott M. CASSEL, a Minor, etc., Plaintiff and Appellant, v. DAY–NITE PEST CONTROL, INC., Defendant and Respondent.

No. B061866.

Decided: August 06, 1993

Gene E. Smith, Del Mar, for plaintiff and appellant. Ives, Kirwan & Dibble and Christopher Grivakes, Los Angeles, for defendant and respondent.

Appeal from a judgment 1 of dismissal by the Los Angeles County Superior Court, the Honorable David M. Schacter, Judge Presiding.   Affirmed.

I.

PROCEDURAL HISTORY

On June 6, 1986, plaintiffs Michael S. Cassel and Shannon E. Cassel filed a complaint against respondent, Day–Nite Pest Control, Inc., alleging causes of action for negligence, strict liability, breach of implied warranty, and fraud and concealment.

A series of demurrers were sustained to plaintiffs' defective pleadings, and plaintiffs subsequently filed a first amended complaint on April 7, 1987, a second amended complaint on July 16, 1987, and a third amended complaint on October 26, 1987.

After a fourth demurrer was sustained with leave to amend, a fourth amended complaint was filed on January 19, 1988, naming appellant Scott M. Cassel as a party plaintiff for the first time.   In this fourth amended complaint, appellant alleges causes of action against respondent for negligence, strict liability, breach of implied warranty, and fraud and concealment.

On February 17, 1988, respondent demurred to the fourth amended complaint on various grounds, including, among other things, that the causes of action of plaintiff Michael S. Cassel and Shannon E. Cassel were barred by the applicable statute of limitations.   The court sustained respondent's demurrer as to the causes of action of plaintiffs Michael S. Cassel and Shannon E. Cassel, leaving only appellant Scott M. Cassel as a party plaintiff in this action.

On June 12, 1991, respondent filed its motion to dismiss pursuant to the five-year dismissal statute (Code Civ.Proc., § 583.310),2 and the two-year dismissal statute (§ 583.420).

On August 2, 1991, the court granted respondent's motion to dismiss in its entirety, and on August 30, 1991, an order of dismissal was filed.

Appellant filed a timely notice of appeal.

II.

STATEMENT OF FACTS

Appellant alleges in his complaint that he sustained prenatal injuries as a result of the spraying of bushes outside the Cassel home by respondent Day–Nite Pest Control, Inc..

There are no allegations in any pleadings, or any evidence in the record, that appellant's mother, Shannon E. Cassel, was present at the home at the time of the spraying.

There is no evidence, in the record that the chemicals used have ever been known to cause birth defects in human beings or animals.   Appellant's response to respondent's discovery requests did not indicate any evidence of a causal connection between the chemicals used, and appellant's injuries.

The record further reflects that respondent was forced to bring motions to compel responses to interrogatories and requests for admission in order to determine the basis of appellant's claims, particularly with respect to causation issues.   Such responses are not demonstrated in this record.

Lastly, there is no evidence in the record that appellant was diligent in prosecuting the within action, or that appellant had any excuse for delay.

III.

ISSUES PRESENTED

1. Whether an amended complaint naming a new party plaintiff relates back to the original complaint for purposes of the five-year dismissal statute.  (§ 583.310.)

2. Whether the trial court abused its discretion in granting a motion to dismiss based upon appellant's failure to prosecute.  (§ 583.420;  Cal.Rules of Court, rule 372.)

IV.

DISCUSSIONA. The five-year dismissal period begins to run from the filing of the original complaint and not from the filing of an amended complaint naming a new plaintiff.1. Standard of review

 The only facts relevant to this issue are undisputed:  an original complaint was filed against respondent on June 6, 1986.   A fourth amended complaint, naming appellant as a party plaintiff for the first time, was filed on January 19, 1988.   On August 2, 1991, the trial court granted respondent's motion to dismiss pursuant to sections 583.310 and 583.360.

The interpretation of the five-year dismissal statute (§ 583.310), as it applies to the above undisputed facts, is subject to de novo review by the appellate court.  (Rudd v. California Casualty Gen. Ins. Co. (1990) 219 Cal.App.3d 948, 951, 268 Cal.Rptr. 624.)

2. The plain meaning of section 583.310 mandates dismissal

 Section 583.310 provides:  “An action shall be brought to trial within five years after the action is commenced against the defendant.”  (Emphasis added.)

Section 583.360 provides:  “(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.  [¶ ] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

The meaning of the term “action” in the context of section 583.310 was decided in Nassif v. Municipal Court (1989) 214 Cal.App.3d 1294, 1298, 263 Cal.Rptr. 195:  “An action is not limited to the complaint but refers to the entire judicial proceeding ․ and is generally considered synonymous with ‘suit.’  [Citation.]   Action is not the same as cause of action․  [¶] The Courts have generally used the word ‘action’ to refer to the proceeding or suit and not to the cause of action.”  (Emphasis added.)

Thus, under the plain meaning of section 583.310, the present action was commenced against respondent when suit was filed on June 6, 1986, and not when the fourth amended complaint was filed on January 19, 1988.

Since this matter was not brought to trial within five years after it was commenced against respondent on June 6, 1986, the trial court properly ordered dismissal pursuant to sections 583.310 and 583.360.

3. An amended complaint adding a new plaintiff relates back to the filing of the original complaint for purposes of the five-year statute

 In Bright v. American Termite Control Co. (1990) 220 Cal.App.3d 1464, 269 Cal.Rptr. 793, the court held that a complaint-in-intervention brought by an insurer seeking to recover its subrogated property loss was “ ‘not a prosecution of a different action but merely a step in the prosecution of the original action, and that the five-year period commenced to run upon the filing of the original complaint.’ ”  (Id., at p. 1469, 269 Cal.Rptr. 793.)

The Bright court noted that the rights and interests of the insurer were “substantially similar” and “ ‘not adverse’ ” to those of the plaintiffs vis-a-vis the defendants, even though the insurer possessed the sole right to sue to recover the subrogated property loss, and the plaintiffs had the sole right to sue to recover for their personal injuries.  (Id., at p. 1469, 269 Cal.Rptr. 793.)

In the present case, we would be hard pressed to classify the rights and interests of the appellant as anything but “substantially similar” and “not adverse” to those of his parents vis-a-vis respondent.

Moreover, in Johnson v. Santos (1983) 148 Cal.App.3d 566, 196 Cal.Rptr. 145, which was decided under former section 583, subdivision (b), involving a workers' compensation insurer's complaint-in-intervention, the court held that the five-year period commences from the filing of the original complaint, and not the complaint-in-intervention.

The Johnson court reasoned as follows:  “If section 583, subdivision (b) were construed to mean the date of an intervener's cause of action is the date to begin the five-year period for bringing cases to trial, an intervener could file his complaint close to the end of the five-year period of the filing of the original complaint and extend the time in which defendant would be subject to litigation to close to ten years.   This would defeat the purpose of avoiding delay.”  (Id., at pp. 569–570, 196 Cal.Rptr. 145.)

In the present case, the original complaint and fourth amended complaint sought recovery on the same general set of facts, i.e. recovery for injuries arising from appellant's alleged birth defects.

The foregoing authority is consistent with the plain meaning of section 583.310:  the five-year period commences when the action is commenced against the defendant, not when a new plaintiff joins the action.

4. Appellant's reliance on Gray v. Firthe (1987) 194 Cal.App.3d 202, 239 Cal.Rptr. 389 is misplaced

The sole authority appellant relies on which involves the five-year statute is Gray.   The Gray case held that as to new defendants added by amendment, and not merely as Does, the five-year period commenced as of the filing of the amended complaint.   It did not hold, as appellant urges on this court, that the same result would obtain for new plaintiffs added by way of amended complaint.   The Gray case does not mention the addition of new plaintiffs.   Appellant relies exclusively on Gray and fails to address Bright or Johnson.

The holding in the Gray case is consistent with the plain meaning of section 583.310:  the five-year period commences to run after the action is commenced against the defendant.   Clearly, an action cannot begin to commence against the defendant prior to that defendant being named in the action.

Appellant would have this court extend the holding of the Gray case to include situations where new plaintiffs are added by way of amended complaint.   Appellant does not provide this court with authority or rationale for such an extension.

Appellant does, however, quote the following language from Gray in order to support his position:  “But when a new party is added to the action, the action commences as to that party on the date of the order adding him or her as a party or on the date of filing of the pleading naming him or her as a new party.”  (Id. at p. 209, 239 Cal.Rptr. 389.)

Appellant urges an interpretation of the above quoted term “new party” to include both plaintiffs and defendants.   In the factual context of Gray, we find no merit in such an interpretation.   A review of the original source of the above quote leads this court to conclude that “new party” was intended to refer solely to new party defendants (in the context of the three-year service of process statute).  (See Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 38, 96 Cal.Rptr. 317.)

In sum, there is simply no basis for this court to extend the holding of Gray to situations where a new party plaintiff is added by way of amended complaint.

5. Appellant's reliance on cases involving the three-year service of process statute or statute of limitations is misplaced

In his opening brief, appellant attempts to cite case authority in addition to Gray for the proposition that the five-year dismissal period commences to run as of the time a new plaintiff is brought into an action.   In support of his position, appellant relies on Washington v. Nelson (1979) 100 Cal.App.3d 47, 160 Cal.Rptr. 644;  Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 96 Cal.Rptr. 317;  and J.A. Thompson & Sons, Inc. v. Superior Court (1963) 215 Cal.App.2d 719, 30 Cal.Rptr. 471 disapproved on another point in Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 694, 36 Cal.Rptr. 321, 388 P.2d 353.)   These additional cases are distinguishable from the present facts.   All of these cases involved the three-year service of process statute.   Additionally, appellant cites Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 6 Cal.Rptr.2d 563, which involved the relation back doctrine in the context of the statute of limitations.

Contrary to appellant's position, the above cases do not involve the five-year dismissal statute and deal solely with the three-year service of process statute.

Since service of process is not an issue in this matter, such cases are of little precedential value.   Moreover, the service of process cases are not reasonably analogous to the present action.   As stated by one court:  “The nature and purpose of the three-year service of process statute (§ 583.210) and the statute of limitations are virtually identical.  [Citation.]   A statute of limitations serves to promote the public policy of furthering justice by precluding the assertion of stale claims.”  (Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1359, 251 Cal.Rptr. 859.)

On the other hand, the purpose of the five-year dismissal statute is to “promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed ․ [and to] protect defendants from being subjected to the annoyance of an unmeritorious action remaining undecided for an indefinite period of time.”  (Cf. General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 416 P.2d 492.)

Since the purpose of the five-year dismissal statute is different from that of the three-year service of process statute, the cases cited by appellant involving the three-year service of process statute are of little, if any, precedential value with respect to the questions presented in this appeal.

B. The court did not abuse its discretion in dismissing the action for failure to prosecute

1. Standard of review

 Since the trial court's dismissal of the action for failure to prosecute pursuant to section 583.420 and California Rules of Court, rule 372 was a discretionary ruling, the standard of review on this issue is abuse of discretion.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58.)

Under the abuse of discretion standard of review, appellate courts may reverse the trial court only upon a showing of a clear case of abuse and a miscarriage of justice.  (Ibid.)

 Discretion is abused only when the trial court “ ‘exceeds the bounds of reason, all of the circumstances before it being considered.’ ”  (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.)

It is appellant's burden to establish an abuse of discretion.  (Blank v. Kirwan, supra, 39 Cal.3d at p. 331, 216 Cal.Rptr. 718.)   In the present case, appellant has not met this burden.

2. The trial court properly considered all relevant factors

 The record reflects that the trial court properly considered all relevant factors set forth in California Rules of Court, rule 373(e) in ruling in favor of dismissal.

The record reflects that respondent made a showing of the relevant factors set forth at California Rules of Court, rule 373(e):  there is no evidence justifying appellant's lack of diligence in prosecuting the matter;  there is no evidence that service of process was an issue;  there is no evidence that settlement negotiations were an issue;  there is no evidence that appellant pursued discovery or pretrial proceedings;  there is no evidence that the nature and complexity of the case was a factor since it essentially boiled down to a question of expert testimony regarding causation;  there is no evidence that other actions, extensions of time or the court calendar were factors;  and, there is no evidence that appellant made any showing of an excuse for delay.

3. There is no evidence of appellant's diligence

Appellant's main contention regarding his diligence in prosecuting the action is that the sheer volume of pleadings in the record establishes diligence.   However, the vast majority of the record consists of demurrers, oppositions and amended complaints—a pleading process that “consumed almost 2 years of time and at least 659 pages of the record herein” according to appellant's calculations.

While appellant may lament that demurrers were brought and sustained “with monotonous regularity through plaintiffs' Four[th] Amended Complaint,” such was the direct result of his counsel's failure to properly plead.   It is clear that a party must bear full responsibility for delays caused by his counsel.   (Freedman v. Pacific Gas & Electric Co. (1987) 196 Cal.App.3d 696, 705, 242 Cal.Rptr. 8.)   Thus, appellant cannot claim that his participation in the pleading process is evidence of diligent prosecution.

Appellant contends that the trial court admitted that appellant had been diligent in prosecuting this matter.   We do not read the record as so indicating.   At the hearing on the motion to dismiss, the trial court stated:  “I don't know where this case is going at this point.   There has been a lot of stuff done on it but nothing accomplished.   It's been [around] a lot.   I've seen it a few times.   And nothing—I was waiting for something to happen.   Nothing seems to have come up.”  (Emphasis added.)

Appellant also contends that he was diligent in responding to numerous discovery requests.   However, the record reflects that appellant never adequately responded to discovery requests, particularly with respect to causation issues, and motions to compel had to be filed by respondent, and ultimately referred to a referee by the trial court.

Finally, there is no evidence in the record that appellant conducted any discovery himself.   In fact, the only discovery conducted by appellant's counsel consists of a request for production and requests for admission propounded in 1987, some four years before the motion to dismiss.

4. The court recognized that the statute of limitations would prevent appellant from refiling, and that appellant's case had no merit

Appellant contends that “[d]oubtless, the trial court sincerely believed that the statute of limitations for the appellant's cause would not expire until appellant reached the age of majority.”   This contention lacks merit:

“THE COURT:  This is something that's odd for me.   Isn't it true, though, that because it's a minor involved that you can rebring the action any time up to 19, something like that?

“MR. SMITH:  That's not my understanding.   And one of the problems is, because it involves prenatal injuries, we've got a six-year statute of limitations with regard to this child.”  (Emphasis added.)

Furthermore, the trial court recognized that appellant's lack of diligent prosecution of the action was directly linked to the lack of merit of his case:

“THE COURT:  ․ Nothing seems to have come up․

“MR. SMITH:  Come up by way of motion for summary judgment, summary adjudication.

“THE COURT:  Something like getting the case set for trial or just seeing that you can tie in the heart and other abnormalities with supposedly the pesticides that were sprayed around the house, which is an unbelievable or impossible burden.”  (Emphasis added.)

In sum, the court was fully apprised of the inability of appellant to refile his action, and fully aware that appellant's action had no merit because of an impossible burden.

5. There is no evidence in the record of any excuse for delay

We find not a shred of evidence in the record that appellant had any excuse for delay, other than his counsel's inability to plead, which is a burden that appellant must bear.

While respondent has the burden of showing that a discretionary dismissal is warranted based on the relevant factors set forth in California Rules of Court, rule 373(e);  once such a showing is made, the burden then shifts to appellant to show excusable delay.  (San Ramon Valley Unified School Dist. v. Wheatley–Jacobsen, Inc. (1985) 175 Cal.App.3d 1050, 1057, 221 Cal.Rptr. 342.)

It has been held that vague references to complexity of the case and voluminous records are not the sort of information that is needed to meet the burden of showing excusable delay.  (Longshore v. Pine (1986) 176 Cal.App.3d 731, 737, 222 Cal.Rptr. 364.)

Since respondent made a showing of the relevant California Rules of Court, rule 373(e) factors, and since there is no evidence anywhere that appellant had any excuse for delay, the trial court properly dismissed the within action.

Moreover, the greater the delay, and the closer the five-year date at which dismissal becomes mandatory, the more difficult it is for appellant to justify the delay.   Appellant must show that he acted with reasonable diligence throughout the entire period of time the action has been pending.  (Corlett v. Gordon (1980) 106 Cal.App.3d 1005, 1013, 165 Cal.Rptr. 524.)

Since appellant cannot show that he acted with reasonable diligence from the time of the filing of the fourth amended complaint, much less the original complaint, and cannot show any excuse for delay, the court properly dismissed the action for failure to prosecute.

V.

DISPOSITION

The judgment is affirmed.   Costs of appeal are awarded to respondent.

I concur in the judgment but dissent from a portion of the rationale of the majority opinion.

I concur in holding the trial court did not abuse its discretion in dismissing this action for failure to prosecute.   The trial court reviewed the relevant factors and appellant made no showing of an excuse for delay.   I disagree, however, with my colleagues in their holding an amended complaint naming a new party plaintiff relates back to the date of the original complaint for purposes of the five-year dismissal statute under Code of Civil Procedure section 583.310.1  In my opinion, an action commences against a party, including a plaintiff, for purposes of section 583.310 on the date the amended complaint is filed naming the new party plaintiff.

I. AN ACTION IS COMMENCED AS TO A NEW PARTY PLAINTIFF ON THE DATE OF FILING THE AMENDED COMPLAINT.

A. This Court's Holding in Gray Is on Point in the Instant Case.

Code of Civil Procedure section 583.310 reads:  “[a]n action shall be brought to trial within five years after the action is commenced against defendant.”

In Gray v. Firthe (1987) 194 Cal.App.3d 202, 239 Cal.Rptr. 389 this court held the Legislature manifested a clear intent to change the law in Code of Civil Procedure, section 583.310 by amending “the operative phrase from “ ‘within five-years after the plaintiff has filed his action’ ” to “ ‘after the action is commenced against the defendant.” ’ ”  (Id. at p. 208, 239 Cal.Rptr. 389.)   Therefore, the court held the dismissal statute of section 583.310 does not begin to run against defendants not named in the original complaint until the filing of the amended complaint.   The majority found such language consistent with the plain meaning of section 583.310.

This court in Gray quoted Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 38, 96 Cal.Rptr. 317 in reasoning “[a]s to a defendant either expressly named in the original complaint, or named in the original complaint by a fictitious name, the action commences on the date of the filing of the complaint.  (Citation omitted.)   But when a new party is added to the action, the action commences as to that party on the date of the order adding him or her as a party or on the date of filing of the pleading naming him or her as a new party.”  (Gray v. Firthe, supra, 194 Cal.App.3d at p. 209, 239 Cal.Rptr. 389.)

In my opinion, the meaning of the term “new party” would apply to both new plaintiffs and new defendants.   The majority reasons an action cannot begin to commence against a defendant prior to such defendant being named in the action.   To continue this line of reasoning, a plaintiff cannot be a party to an action before he or she is identified as such in a complaint.   Until that time the new plaintiff's action has not commenced against any defendant, whether that defendant was mentioned in the original complaint which other plaintiffs filed or not.   Appellant only became a party to this action upon the filing of the amended complaint.   Until then his interests were neither represented nor protected.

B. Appellant's Claim Is Sufficiently Separate and Distinct Under Nassif.

In Nassif v. Municipal Court (1989) 214 Cal.App.3d 1294, 1298, 263 Cal.Rptr. 195 this court held the term “action” in the context of section 583.310 was intended to mean a suit commenced by the filing of a complaint and was not intended to include multiple suits filed on the same cause of action.   Furthermore, the five-year period for bringing an action to trial was a separate and distinct time frame as to each cause of action.

If the court in Nassif could find separately filed actions setting forth the same cause of action against the same defendant to recover the same compensation based upon the same set of facts sufficiently separate and distinct to warrant application of different time frames for bringing the matters to trial, certainly different causes of action brought by a different plaintiff identified within the allowable statute of limitations are sufficiently separate and distinct to warrant different time frames for calculating the five-year period in which appellant could bring his action to trial in the instant case.

C. The Cases Involving the Three–Year Service of Process Statute Also Support the Conclusion the Five–Year Dismissal Statute Only Commences Running As to a Newly Added Plaintiff When the Amended Complaint Including That Plaintiff Is Filed.

The majority holds appellant's reliance on Gray v. Firthe, supra, 194 Cal.App.3d 202, 239 Cal.Rptr. 389;  Washington v. Nelson (1979) 100 Cal.App.3d 47, 160 Cal.Rptr. 644;  Warren v. Atchison, T. & S.F. Ry. Co., supra, 19 Cal.App.3d 24, 96 Cal.Rptr. 317;  and J.A. Thompson & Sons, Inc. v. Superior Court (1963) 215 Cal.App.2d 719, 30 Cal.Rptr. 471, cases involving the three-year statute of limitations, is misplaced.   This finding is derived from reasoning based upon cases stating the purpose of the three-year service of process statute, Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1359, 251 Cal.Rptr. 859, and the purpose of the five-year dismissal statute, General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 91, 52 Cal.Rptr. 460, 416 P.2d 492.

General Motors Corp. was decided under former Code of Civil Procedure section 583.   The majority agrees the holding in Gray v. Firthe, supra, 194 Cal.App.3d 202, 239 Cal.Rptr. 389 to the effect the five-year period commences to run after the action is commenced against a given defendant is consistent with the plain meaning of amended Code of Civil Procedure section 583.310.  The language in section 583.310 is similar to the language used by this court in J.A. Thompson & Sons, Inc. v. Superior Court, supra, 215 Cal.App.2d at 722, 30 Cal.Rptr. 471, “For the purpose of computing the running of a statute of limitations when a new party is brought into an action, the action commences as to him when an appropriate amended or supplemental complaint is filed.”  (Ibid., quoting Taliaferro v. Riddle (1959) 167 Cal.App.2d 567, 334 P.2d 950, italics added.)  “[T]he same rule should apply where a new party plaintiff is brought into the action by means of an amended complaint.”   (Ibid.)

I find the cases Gray v. Firthe, supra, 194 Cal.App.3d 202, 239 Cal.Rptr. 389;  Washington v. Nelson, supra, 100 Cal.App.3d 47, 160 Cal.Rptr. 644;  Warren v. Atchison, T. & S.F. Ry. Co., supra, 19 Cal.App.3d 24, 96 Cal.Rptr. 317;  and J.A. Thompson & Sons, Inc. v. Superior Court, supra, 215 Cal.App.2d at 722, 30 Cal.Rptr. 471, which deal with the three-year service of process statute, of persuasive if not precedential value with respect to the questions presented in this appeal.

D. The Factual Circumstances in Bright and Johnson Are Dissimilar to Those Presented in This Appeal.

The majority relies on the cases Johnson v. Santos (1983) 148 Cal.App.3d 566, 196 Cal.Rptr. 145 and Bright v. American Termite Control Co. (1990) 220 Cal.App.3d 1464, 269 Cal.Rptr. 793, review denied 1990, in holding an amended complaint adding a new party plaintiff relates back to the filing of the original complaint for purposes of the five-year statute.   I find the factual circumstances in both Johnson and Bright dissimilar to those presented in the instant action.   Therefore, the cases are of no value in deciding this appeal.

In Johnson v. Santos, supra, 148 Cal.App.3d 566, 196 Cal.Rptr. 145 the court held “[t]he statutory five-year period of section 583, subdivision (b) for a workers' compensation complaint in intervention runs from the date of the filing of the original complaint, not from the time the complaint in intervention is filed.”  (Id. at p. 571, 196 Cal.Rptr. 145.)   Similarly, Bright v. American Termite Control Co., supra, 220 Cal.App.3d 1464, 269 Cal.Rptr. 793, review den. 1990, dealt with a claim in intervention.   The court held where a complaint in intervention brought by an insurer to recover subrogated property loss states essentially the same cause of action as the original complaint, the five-year dismissal statute of section 583.310 runs from the date the original action is commenced.   Additionally, the court noted the rights and interests of the insurer were “ ‘substantially similar’ ” and “ ‘not adverse’ ” to those of the plaintiffs.  (Id. at p. 1469, 269 Cal.Rptr. 793.)

The rights of the plaintiff in an intervention action are derivative of the insured by reason of subrogation.   Therefore, the insurer can have no greater rights to recovery than the insured.   Furthermore, the insurer cannot state a cause of action based upon any theory of recovery distinctly different from the rights of the insured.

In the present action, appellant has a separate and distinct basis for recovery apart from his parents.   The extent of the parents' recovery is restricted to allowable damages for compensation of the parents.   Appellant's additional bases for recovery would include future loss of earning capacity;  lifetime medical, nursing or domestic care;  appellant's pain and suffering;  and any other damages innate to appellant.   Indeed the parents could lose on their causes of action at the same time appellant was prevailing on his.   This was not the case in Johnson and Bright where the added parties, the complainants in intervention, were filing causes of action entirely dependent on and derivative of the original plaintiffs causes of action.

E. The Goals of Judicial Economy Are Defeated by Requiring New Plaintiffs to File Entirely New Lawsuits Rather Than Merely Being Added as New Plaintiffs to Existing Lawsuits.

The lesson the majority opinion teaches prospective plaintiffs in appellant's position is the wrong one.   At least it is the wrong lesson if we are interested in judicial economy.   It tells these plaintiffs they must file a brand new lawsuit rather than being added to a related ongoing suit.   Otherwise these new plaintiffs risk dismissal of their action because the other plaintiffs who started their lawsuit earlier may be deemed at some point to have taken too long to bring their earlier filed causes of action to trial.

The inevitable effect of such a rule is a proliferation of lawsuits, all involving the same incident or transaction and the same defendant but different plaintiffs who filed their causes of action at different times.   Each of these lawsuits would be proceeding down its own track, often before different judges and on different time schedules.   Each would be having its own set of hearings on demurrers, summary judgment motions, status conferences, settlement conferences, trials, and the like.   Thus the rule of the majority is counterproductive to the goals of judicial economy.

Conceivably, this problem could be ameliorated by consolidating the related, separately filed lawsuits in a single proceeding.   This consolidation would raise another issue, however.   If forced into a consolidated proceeding, will those plaintiffs who filed their lawsuits later in time be governed by the five-year time period which started with the filing of the first plaintiff's lawsuit?   Presumably not.   But if not, why should appellant be bound by the same five-year period as the earlier filing plaintiffs in this case, merely because he chose the path most consistent with judicial economy instead of filing an independent lawsuit, one which may or may not have to be consolidated eventually with his parent's action.

II. CONCLUSION

The instant case happens to involve an appellant who was added to the ongoing litigation several years before the five years expired on the original causes of action the other plaintiffs filed.   I am convinced it is proper to uphold the trial court's dismissal of appellant's action on grounds he was not sufficiently diligent in prosecuting his own causes of action independent of when the five-year dismissal statute may be deemed to run on those causes of action.

It should be noted, however, the majority opinion in this case announces a rule as to the commencement of the five-year statute which would apply as well to new plaintiffs who joined an ongoing lawsuit only a few months or even weeks before the five years expired as to the rest of the plaintiffs involved in the same underlying incident or transaction.   These newly added plaintiffs and their separate and distinct causes of action would suffer dismissal “for failure of diligent prosecution” even though they had not been given any reasonable opportunity to even begin diligent preparation of their cases.   This result highlights what I consider a questionable interpretation of the governing statutes, one which is counterproductive to judicial economy and unjust to litigants.

FOOTNOTES

1.   The notice of appeal indicates that the appeal is taken from an “order of dismissal entered ․ and from the Judgement [sic] of dismissal subsequently entered thereon.”   Our examination of the record reveals no subsequent judgment entered in the matter.   But we note the record reveals that the order of dismissal filed in the action on August 30, 1991, is signed and dated by David M. Schacter, Judge of the Superior Court.   We deemed the signed and dated order to be satisfactory compliance with Code of Civil Procedure section 904.1, subdivision (a) making the order reviewable as a judgment on this appeal.   But see this court's admonition in Cohen v. Equitable Life Assurance Society (1987) 196 Cal.App.3d 669, 671, 242 Cal.Rptr. 84.

2.   All statutory references are to the Code of Civil Procedure unless otherwise noted.

1.   Unless otherwise indicated all future references are to the Code of Civil Procedure.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.