JOHNSON v. Memorial Hospital Medical Center of Long Beach, Inc., Plaintiff in Intervention and Appellant.

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

Annette W. JOHNSON, Plaintiff, v. HAUGHTON AND COMPANY, et al., Defendants and Respondents; Memorial Hospital Medical Center of Long Beach, Inc., Plaintiff in Intervention and Appellant.

No. B009742.

Decided: August 16, 1988

Holzer & Cohen and Sheldon Cohen, Northridge, for plaintiff in intervention and appellant. McHale & Connor and Philip C. Allen, Los Angeles, for defendants and respondents.

In this case the trial court dismissed the complaint in intervention under former Code of Civil Procedure section 583, subdivision (b) for failure to bring the intervention action to trial within five years after the original plaintiff filed her action.   We hold that for purposes of section 583 where the complaint in intervention states a new cause of action against the defendant the five-year period runs from the date the complaint in intervention is filed not from the date the original action is commenced.   Therefore, we reverse the judgment of dismissal.

FACTS AND PROCEEDINGS BELOW

On June 19, 1979, plaintiff Annette Johnson filed a complaint for personal injuries alleging she was injured due to the negligence of defendant Haughton and Company while within the course and scope of her employment at Long Beach Memorial Hospital.   Haughton filed an answer to the complaint on or about August 22, 1979.   Memorial Hospital filed a complaint in intervention on December 10, 1979, seeking reimbursement from Haughton for the workers' compensation benefits Memorial had paid to Johnson.

Johnson's complaint was subsequently dismissed for failure to comply with court ordered discovery.   If it had not been dismissed, the five-year period for bringing Johnson's action to trial would have expired on June 19, 1984.   On October 12, 1984, the trial court dismissed Memorial's complaint in intervention for failure to bring it to trial within five years from the filing of Johnson's action.   If the five-year period is measured from the filing date of Johnson's complaint, the time for bringing Memorial's intervention action to trial had expired.   If the five-year period is measured from the filing date of Memorial's complaint in intervention, the time for bringing that action to trial had not yet expired when the trial court dismissed it.

DISCUSSION

WHEN AN EMPLOYER WHO HAS PAID WORKERS' COMPENSATION INTERVENES IN THE WORKER'S ACTION AGAINST A THIRD PARTY TORTFEASOR THE TIME WITHIN WHICH THE EMPLOYER'S ACTION MUST BE BROUGHT TO TRIAL RUNS FROM THE DATE OF FILING THE COMPLAINT IN INTERVENTION.

Memorial's complaint in intervention was dismissed under former Code of Civil Procedure section 583, subdivision (b) which mandated dismissal of any action not “brought to trial within five years after the plaintiff has filed his action․” 1  Section 583 does not specifically deal with complaints in intervention.   Nevertheless, the language of the statute and its acknowledged purpose persuade us the five-year period runs from the filing of the employer's complaint in intervention.

 The test for whether a subsequently filed claim has an independent life under section 583 is whether the claim asserts a separate cause of action against the defendant.   Although our Supreme Court has not applied this test to complaints in intervention, it has applied it in the case of cross-complaints, counterclaims and separate lawsuits subsequently consolidated.   In each case the Court held the time for bringing the claim to trial ran from the filing of the cross-complaint, counterclaim or the particular lawsuit that was subsequently consolidated.   The Court's rationale was that each claim stated a separate cause of action which could have been separately brought and tried.   Therefore for purposes of mandatory dismissal these actions were distinct and independent actions pending simultaneously between the parties.  (Tomales Bay etc. Corp. v. Superior Court (1950) 35 Cal.2d 389, 394, 217 P.2d 968;  General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 93, 52 Cal.Rptr. 460, 416 P.2d 492.)

The separate cause of action test was applied to dismiss a complaint in intervention for failure to prosecute in Bosworth v. Superior Court (1956) 143 Cal.App.2d 775, 300 P.2d 155.   There, the original plaintiff, an heir, brought an action to cancel a deed of property to the defendants.   The administrator of the estate filed a complaint in intervention alleging the same cause of action and seeking the same relief as the heir.   The court held the time for bringing the administrator's action to trial commenced with the filing of the original complaint by the heir.   The court reasoned,

“The cause of action asserted by the complaint in intervention is the same cause of action as asserted by the complaint.   It follows that the complaint in intervention 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 filing of the original complaint.”   (Id. at p. 779, 300 P.2d 155.)

 The instant case involves an action in the nature of equitable subrogation through which the employer who paid workers' compensation benefits to its employee seeks to recoup those benefits from the third party tortfeasor whose negligence was the proximate cause of the employee's injury.   (Lab.Code, § 3852.)

“[T]he workers compensation statutes set up procedures which guarantee an employee and an employer notice of each other's action, authorize the employee and the employer to intervene in each other's lawsuit, provide for mandatory consolidation of separate employee and employer actions, and grant the employee and the employer the right to share in each other's judgment or settlement.”   (County of San Diego v. Sanfax Corp. (1977) 19 Cal.3d 862, 872, 140 Cal.Rptr. 638, 568 P.2d 363.)

Although the employer's and employee's action have been described as “essentially the same lawsuit” for purposes of the statute of limitations, id. at page 874, 140 Cal.Rptr. 638, 568 P.2d 363, we believe they should be treated as separate actions for purposes of the time limit for bringing an action to trial.

The employer's and employee's actions have a common law tort basis.   In either action the plaintiff bears the burden of establishing the defendant's negligence is the proximate cause of the employee's injuries and the amount of tort damages reasonably resulting therefrom.  (Breese v. Price (1981) 29 Cal.3d 923, 931, 176 Cal.Rptr. 791, 633 P.2d 987.)   The actions, however, involve different legally protected interests.   The action by the employee is for her personal injury for which she may recover all damages proximately caused including damages for pain and suffering not recognized under workers' compensation.  (Harrison v. Englebrick (1967) 254 Cal.App.2d 871, 873, 62 Cal.Rptr. 831;  Jacobsen v. Industrial Acc. Com. (1931) 212 Cal. 440, 447, 299 P. 66;  and see 2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (2d ed. 1976) §§ 1.05 [5], 23.05 [1][a].)   The employer's action, on the other hand, rests on principles of equitable subrogation for which the employer may recover only workers' compensation and other emoluments it is legally obligated to pay the injured employee.  (Lab.Code, § 3852;  Morris v. Standard Oil Co. (1926) 200 Cal. 210, 214, 252 P. 605;  Breese v. Price, supra, 29 Cal.3d at p. 929, 176 Cal.Rptr. 791, 633 P.2d 987;  Hanna, supra, § 23.05.)   The employer's cause of action does not arise from its employee's injury but from its having to pay workers' compensation.   (County of San Diego v. Sanfax Corp., supra, 19 Cal.3d at p. 876, fn. 7, 140 Cal.Rptr. 638, 568 P.2d 363.)   Absent that obligation the employer has no cause of action for subrogation.  (Id. at p. 884, 140 Cal.Rptr. 638, 568 P.2d 363;  Lab.Code, § 3852.)

 There are additional factors that establish the separateness of the employer's and employee's action.   While the law allows the employer to sue to recover the employee's personal injury damages, the employer may sue only as “statutory trustee” of the employee (Lab.Code, §§ 3854, 3856;  Aetna Cas. etc. Co. v. Pacific Gas & Elec. Co. (1953) 41 Cal.2d 785, 789, 264 P.2d 5) and only if the employee has made a claim for workers' compensation.   The employer's subrogation action does not abate by reason of the death of the employee.  (Lab.Code, § 3851;  National Auto Ins. Co. v. Cunningham (1940) 41 Cal.App.2d 828, 830, 107 P.2d 643.)   Moreover, in the case of the employee's death, the employer may recover medical benefits it paid which would not be recoverable by the employee's heirs in a wrongful death case.  (See Pacific Employers Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Co. (1956) 143 Cal.App.2d 646, 299 P.2d 928.)   Negligence allocated to the employer does not reduce the employee's recovery but does reduce the amount recoverable by the employer.  (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 668–670, 151 Cal.Rptr. 399.)   The employee may unilaterally settle with the third party tortfeasor.  (Lab.Code, § 3859.)

In Hanna, supra, the leading authority on workers' compensation in California, the author states, “The [employer's] right of action against a third party who has caused compensable injury to an employee is separate and distinct from the employee's cause of action․” (§ 24.01 [6].)   Whether the employer's cause of action is viewed as a newly created statutory action (City of Los Angeles v. Howard (1947) 80 Cal.App.2d 728, 729–730, 182 P.2d 278;  Fidelity & Cas. Co. v. McMurry (1963) 217 Cal.App.2d 767, 769, 32 Cal.Rptr. 243;  Carden v. Otto (1974) 37 Cal.App.3d 887, 893, 112 Cal.Rptr. 749;  Barme v. Wood (1984) 37 Cal.3d 174, 180, 207 Cal.Rptr. 816, 689 P.2d 446) or a traditional common-law action for equitable subrogation (County of San Diego v. Sanfax, supra, 19 Cal.3d at p. 876, fn. 7, 140 Cal.Rptr. 638, 568 P.2d 363;  Breese v. Price, supra, 29 Cal.3d at p. 929, 176 Cal.Rptr. 791, 633 P.2d 987), there is ample judicial authority to support the conclusion the employer's cause of action is separate and distinct from the employee's cause of action.

In two cases analogous to the case before us, subrogees' complaints in intervention were found to have lives of their own and thus immune from dismissal where the original actions were dismissed for failure to prosecute.

In Carnation Co. v. Superior Court (1969) 1 Cal.App.3d 891, 82 Cal.Rptr. 98 an employee sued defendant for personal injuries and her employer, through its insurance carrier, filed a complaint in intervention for reimbursement of workers' compensation benefits.   The trial court refused to exercise its discretion to dismiss both actions for failure to bring them to trial after two years.  (See former Code Civ.Proc., § 583, subd. (a).)  Defendant sought a writ of mandate to compel dismissal.   The Court of Appeal granted the writ as to the original action by the employee but denied it as to the intervenor's subrogation action.   The court explained its denial as follows:

“We find no abuse of discretion by the trial judge in denying the motion to dismiss as to plaintiff in intervention.   The position of a workmen's compensation insurance carrier-intervener [sic] in an action for damages for personal injuries is different from that of an injured employee, and the dismissal of the complaint will not affect plaintiff in intervention's right to proceed by itself to recover that portion of the plaintiff's claim for which she has received workmen's compensation benefits from the carrier.”  (Id. at p. 896, 82 Cal.Rptr. 98.)

In Deutschmann v. Sears, Roebuck & Co. (1982) 132 Cal.App.3d 912, 183 Cal.Rptr. 573 the trial court dismissed the plaintiff's action for property damage and personal injury as well as a subrogation complaint in intervention by plaintiff's insurer because the plaintiff failed to file a proof of service of summons within three years after the date she filed her complaint.  (See former Code Civ.Proc., § 581a, subd. (a).)  It was undisputed the summons on the complaint in intervention had been timely served and returned.   The Court of Appeal reversed the dismissal of the complaint in intervention.   The court began its discussion by pointing out the “significance [of] the fact that an insurer under such circumstances is not limited to an action in intervention, [it] may bring a separate independent action to recover directly from the third party tortfeasor․  Thus, [it] has an independent cause of action against the third party for recovery of the amount he was obligated to pay to the insured․” (Id. at pp. 915–916, 183 Cal.Rptr. 573, citation omitted.)   The court held that the complaint in intervention, having been validly filed and served, had an independent life of its own regardless of the original plaintiff's failure to timely file proof of service of her complaint.  (Id. at p. 918, 183 Cal.Rptr. 573.)

The only support that can be mustered for starting the five-year period on the date the original complaint is filed is dicta in Rhode v. National Medical Hospital (1979) 93 Cal.App.3d 528, 155 Cal.Rptr. 797 and Johnson v. Santos (1983) 148 Cal.App.3d 566, 196 Cal.Rptr. 145.   We find those cases unpersuasive as authority on the issue squarely presented here.

The issue in Rhode was whether the intervening employer's failure to serve the summons on the complaint in intervention within three years of filing the intervention action required the trial court to dismiss the intervention action under Code of Civil Procedure section 581a, subdivision (a).2  The court held section 581a did not require dismissal because the defendant had made a general appearance in the original action filed by the employee.   The court reasoned the general appearance in the employee's action satisfied the purpose of the statute which was “ ‘to compel reasonable diligence in the prosecution of an action after it has been commenced ․’ ․ Rhode's diligent prosecution of the main action, which Sybron appeared in, was sufficient to insure that Pacific's action in intervention would likewise be diligently prosecuted.”  (93 Cal.App.3d at p. 538, 155 Cal.Rptr. 797.)   In responding to the defendant's argument its appearance in the original action was not an appearance in the intervenor's separate action, the court expressed the view an intervention action is not a separate action;  rather, “the vitality of an action in intervention is linked to the vitality of the main action in which the intervention is sought.”  (Rhode, supra, 93 Cal.App.3d at p. 539, 155 Cal.Rptr. 797.)   The view expressed was dictum because under the court's rationale the defendant's appearance in the original action satisfied section 581a whether or not the intervention action was treated as a separate action.

Like the court in Deutschmann, supra, 132 Cal.App.3d at p. 918, 183 Cal.Rptr. 573, we decline to adopt Rhode's view a complaint in intervention is not to be treated as a separate action.   The Rhode opinion does not cite Carnation Co. v. Superior Court, supra, or any of the authorities we have discussed above which support the conclusion the employer's action for subrogation is a separate action from the employee's suit for personal injuries.   The authority Rhode does cite does not support its conclusion.   Rhode's reliance on Code of Civil Procedure section 387, subdivision (a) was misplaced.   The court relied on language in subdivision (a) which states, “An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons․” (Rhode, supra, 93 Cal.App.3d at p. 537, 155 Cal.Rptr. 797.)  Rhode overlooked subsection (b) of the statute which states, “If any provision of law confers an unconditional right to intervene ․ the court shall, upon timely application, permit that person to intervene.”  Labor Code section 3853 confers such an unconditional right.   Thus subsection (b), not (a), is the applicable law in Rhode and in the case at bar.  (Jordan v. Superior Court (1981) 116 Cal.App.3d 202, 207, 172 Cal.Rptr. 30.)   Cases holding the injured employee controls the case and dominates over the intervening employer do not support Rhode's conclusion the employer's action is totally dependent on the employee's action for its vitality.   There are a number of areas in which the intervening employer may exercise independent decision-making.  (See Deutschmann, supra, 132 Cal.App.3d at p. 916, 183 Cal.Rptr. 573;  4 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 254, pp. 308–309.)   Furthermore, if as contended in Rhode, “the vitality of an action in intervention is linked to the vitality of the main action” then whenever the original action falls the intervention action would automatically fall also.   This is clearly not the way the law on intervention has developed.  (See Poehlmann v. Kennedy (1874) 48 Cal. 201, 207–208;  Voyce v. Superior Court (1942) 20 Cal.2d 479, 488, 127 P.2d 536;  Floyd Neal & Associates, Inc. v. Superior Court (1977) 72 Cal.App.3d 734, 739, 140 Cal.Rptr. 301;  Carnation v. Superior Court, supra;  Deutschmann, supra.)

Defendant relies heavily on Johnson v. Santos (1983) 148 Cal.App.3d 566, 196 Cal.Rptr. 145 in which the court concluded, without benefit of citation to authority or relevant argument by the parties, the five-year period for bringing the employer's intervention action to trial runs from the filing of the original complaint by the employee.  (Id. at pp. 569, 571, 196 Cal.Rptr. 145.)   We find the reasoning behind this conclusion flawed and, more important, contrary to the views expressed by our Supreme Court.

The court in Santos advanced two justifications for construing the five-year period to run from the filing of the employee's original complaint:  to protect the defendant from having to defend more than one action and to avoid unnecessary delay.  (148 Cal.App.3d at pp. 570–571, 196 Cal.Rptr. 145.)   These justifications will not stand up under scrutiny.

The court correctly perceived the purpose of the intervention and consolidation procedure under Labor Code section 3853 is to “ ‘reduc[e] the likelihood that a third party will be forced to defend more than one action.’ ”  (Id. at p. 571, 196 Cal.Rptr. 145, quoting from County of San Diego v. Sanfax, supra, 19 Cal.3d at p. 881, 140 Cal.Rptr. 638, 568 P.2d 363.)   The court does not explain how commencing the five-year period for bringing the employer's intervention action to trial from the filing date of the complaint in intervention would force the defendant to defend more than one action.   The examples in Sanfax of situations where the defendant could be put to its defense more than once could not arise where the employer has intervened in the employee's action.   Indeed, that was the very point the Supreme Court was making in the portion of the Sanfax opinion cited by the court in Santos.  (Ibid.)

In Sanfax, the employer did not intervene in its employees' action against the defendant.   Instead, it filed an independent lawsuit.   This suit was dismissed as barred by the statute of limitations because it was not filed within one year from the date of the employees' injury.   On appeal, the employer argued the one-year period should not run from the date of the employee's injury but from the date the employer pays or is ordered to pay workers' compensation benefits.  (19 Cal.3d at p. 879, 140 Cal.Rptr. 638, 568 P.2d 363.)   The court answered this argument by pointing out such a rule would conflict with the goal of section 3853 that the defendant not be forced to defend more than one action.

“Plainly, this purpose would not be fulfilled if we were to hold that the employer's statute of limitations runs from the date upon which the employer agrees to pay or is ordered to pay its employee's benefits.   At least in cases in which an employer disputes its workers compensation responsibility, the possibility would arise that an employer could bring suit against a third party after the conclusion of the employee's action, and perhaps even after the third party had defeated the employee's claim.   Thus, statutory policy, far from supporting the county's argument, serves to refute it.”  (Id. at p. 881, 140 Cal.Rptr. 638, 568 P.2d 363.)

These possibilities cannot exist if the employer proceeds by way of intervention.   The employer's right to intervene is cut off when trial commences on the original action or the original action is dismissed.   (Lab.Code, § 3853;  Rhode v. National Medical Hosp., supra, 93 Cal.App.3d at p. 539, 155 Cal.Rptr. 797;  Roski v. Superior Court (1971) 17 Cal.App.3d 841, 844, 95 Cal.Rptr. 312.)

The Santos court's fear that commencing the five-year period from the filing date of the complaint in intervention would defeat the purpose of the five-year limitation is more understandable but not a valid reason for tying the employer's five-year period to the employee's.   There are better means available to prevent the employee and employer from delaying trial indefinitely by continually intervening in each other's actions.

In Buell v. CBS, Inc. (1982) 136 Cal.App.3d 823, 186 Cal.Rptr. 455 the original plaintiff (the employee), whose action was dismissed under section 581a for failure to timely serve the summons, was allowed to re-enter the case by intervening in the employer's action which itself was an intervention action in the employee's original suit filed before the original suit became subject to dismissal.   The court held the employee's intervention action was permissible under Labor Code section 3853 because the dismissal of the original action was not a determination on the merits and the employer's action had not yet gone to trial.  (Id. at pp. 826–827, 186 Cal.Rptr. 455.)   Defendant in the case before us argues under the reasoning of Buell the employee and employer could play a game of litigation leap-frog.   As each party's action was dismissed for failure to prosecute he or she could simply intervene in the other party's action, ad infinitum.  (Santos, supra, 148 Cal.App.3d at p. 570, 196 Cal.Rptr. 145.)

There are, first of all, practical reasons why this scenario would never arise.   The employee is seeking to recover for economic losses in excess of workers' compensation benefits.   The employer is seeking to recover workers' compensation benefits it has had to pay out of its pocket.   Neither party has any incentive to drag out the litigation and an attorney who allowed the case to be dismissed once for lack of diligent prosecution would be unlikely to get a second chance.   Because attorneys for employees are almost always working on a contingent fee basis, they too have little incentive to delay the action as imagined in Santos.   Second, the trial court has the means to prevent a leap-frogging of actions should it appear the parties are engaging in such conduct.   The court could deny subsequent motions to intervene as untimely (Code Civ.Proc., § 387, subd. (b)), or it could dismiss each action in turn two years or three years after filing and order the dismissal with prejudice.   (Code Civ.Proc., § 583.420;  Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915, 231 Cal.Rptr. 738, 727 P.2d 1019.)   Finally, a dismissal for failure to comply with a discovery order, as occurred here, is an adjudication on the merits and would bar refiling by the employee.  (Kahn v. Kahn (1977) 68 Cal.App.3d 372, 382, 137 Cal.Rptr. 332.)

The purpose of section 583 is to compel reasonable diligence in the prosecution of an action not to arbitrarily close the proceedings at all events in five years.  (Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 64, 168 P.2d 665.)   The purpose of section 583 is not served by dismissing the action of a diligent intervenor because of the lack of diligence or other failure on the part of the original plaintiff.   This is especially so where, as here, the “intervenor has the status of a party-plaintiff, [but] the injured employee is the primary plaintiff who is in control of the case and is recognized as the dominant party.”  (Smith v. Trapp (1967) 249 Cal.App.2d 929, 936, 58 Cal.Rptr. 229.)

Measuring the time for bringing the intervention action to trial from the date of its filing does not prejudice the defendant.   Our Supreme Court addressed this point in General Motors Corp. v. Superior Court, supra, 65 Cal.2d at p. 91, 52 Cal.Rptr. 460, 416 P.2d 492 in the context of consolidated actions.   The court stated,

“The purposes served by [section 583] are somewhat analogous to those underlying statutes of limitation.   Both types of statutes promote the trial of cases before evidence is lost, destroyed, or the memory of witnesses becomes dimmed.   The statutes also protect defendants from being subject to the annoyance of an unmeritorious action remaining undecided for an indefinite period of time.   However, section 583 would appear to involve policy considerations somewhat less crucial than those safeguarded by statutes of limitation.   Once an action is filed and a defendant is served, he is then armed with notice of plaintiff's claim and may protect his interests by means which were generally unavailable to him before filing.   For example, he may institute discovery processes in order to preserve evidence which might be destroyed, may locate material witnesses and take depositions if appropriate, and may move that a frivolous or sham action be dismissed.”

Because they necessarily involve related issues, there is no prejudice to the defendant in applying the section 583 time limits to consolidated actions from the time each particular action was filed.  (Id. at pp. 92–93, 52 Cal.Rptr. 460, 416 P.2d 492.)   We are of the opinion the same reasoning applies where the employer, seeking to recover workers' compensation from the defendant, intervenes in the employee's personal injury suit against the same defendant.   Both actions involve related issues and Labor Code section 3853 authorizes both intervention and consolidation of the employer's claim.

If we were to hold the five-year period runs from the time the employee files the original action we would be drawing a distinction where none exists.   Where the employer and employee file independent actions which are subsequently consolidated the time for bringing each action to trial is measured from the time the particular action was filed.  (General Motors Corp. v. Superior Court, supra, 65 Cal.2d at p. 93, 52 Cal.Rptr. 460, 416 P.2d 492.)   Thus, if Memorial had filed an independent action which was later consolidated with Johnson's action under Labor Code section 3853, the five-year period would run from the date Memorial's action was filed, not the date Johnson's action was filed.  (Ibid.)  Instead of filing an independent action and consolidating it, Memorial filed a complaint in intervention in Johnson's action.   This procedure is also authorized under section 3853.   Defendant has offered no explanation why the choice between these two ways of proceeding should result in different outcomes under section 583.   We can find no rational basis for such an anomalous result.

We conclude the separate nature of the employer's action for subrogation gives its complaint in intervention a life of its own for purpose of measuring reasonable diligence in prosecution.   Therefore, the five-year time period in section 583 begins running upon the filing of the complaint in intervention not upon the filing of the original complaint.

We reach the same conclusion by observing the principle of fundamental fairness.   An intervention action must be filed before it can be diligently prosecuted.   Obviously, the employer cannot intervene in the employee's action if it is unaware the employee has filed an action.   Although Labor Code section 3853 directs the employee to notify the employer of the employee's action “forthwith,” there is no specified time within which the employee must give notice nor any penalty for failing to do so.  (Van Zandt v. Sweet (1922) 56 Cal.App. 164, 167, 204 P. 860.)   In the case at bar the employee filed her action against defendant on June 19, 1979.   Memorial did not receive notice of this filing until three months later.   Thus, by the time the employer found out about the original complaint, three months of the five-year period had already elapsed.   This three-month gap is significant because if the five-year period is measured from the date the complaint in intervention was filed there were two months remaining when the trial court dismissed the action.

 Fundamental fairness requires all the runners in the race hear the starting gun at the same time.   Where legal proceedings themselves trigger a time bar, due process requires actual, timely notice to the affected party.   (See, e.g., Mennonite Board of Missions v. Adams (1983) 462 U.S. 791, 793–794, 103 S.Ct. 2706, 2708–2709, 77 L.Ed.2d 180 [tax sale proceedings trigger two-year redemption period];  Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 433, 437, 102 S.Ct. 1148, 1156, 1158, 71 L.Ed.2d 265 [claim barred if no hearing held 120 days after action commenced];  City of New York v. New York, N.H. & H.R. Co. (1953) 344 U.S. 293, 294, 73 S.Ct. 299, 300, 97 L.Ed. 333 [bankruptcy proceeding triggers specific time period in which creditors' claims must be filed].)   In the absence of an effective notice requirement, basing the five-year limit of section 583 on the filing date of the employee's action would raise a substantial due process problem.   In the present case, the race was already three months underway before Memorial was even notified it had started.

DISPOSITION

The judgment is reversed.   Appellant to receive costs.

FOOTNOTES

1.   Currently, section 583.310 provides,“An action shall be brought to trial within five years after the action is commenced against the defendant.”   Under our analysis this change in wording does not alter the triggering event for the five-year period.

2.   Section 581a, subdivision (a), since repealed, provided,“[A]ll actions ․ shall be dismissed ․ unless the summons on the complaint is served and return made within three years after the commencement of said action, except where ․ the party against whom the action is prosecuted has made a general appearance in the action.”  (See now Code Civ.Proc., §§ 583.210, 538.220, 583.250.)

JOHNSON, Associate Justice.

LILLIE, P.J., and KOLTS, J.*, concur.

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