Sturm, Ruger & Co. v. Superior Court

Opinion

PUGLIA, P. J.

Petitioners are defendants in an action for damages commenced in respondent superior court by real parties in interest. The complaint seeks compensation for injuries incurred by real party Buddy Ray Smith when a revolver manufactured by petitioner Sturm, Ruger & Company, Inc., and sold by petitioner Simms Hardware Company accidentally discharged. Real parties allege three causes of action on theories of negligence, strict products liability and loss of consortium.

The revolver was purchased by real party in Sacramento on January 5, 1960, but the accident which gave rise to this litigation did not occur until October 9, 1981, in Oregon. At the time of the mishap, real parties were residents of the State of Oregon. Relying on these undisputed facts, petitioners sought summary judgment in the superior court on the grounds that the action, if brought in Oregon, would be barred by lapse of time under Oregon Revised Statutes sections 12.115 and 30.905, and therefore cannot be maintained in California by virtue of this state’s “borrowing statute,” Code of Civil Procedure section 361. Section 361 provides: “When a cause of action has arisen in another State, or in a foreign country, and by the

[581]

laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued.” The superior court denied petitioners’ motion, and they now seek review in this court by way of mandamus.

We shall deny the petition on the grounds that it is not timely. Code of Civil Procedure section 437c, subdivision (l), as amended effective January 1, 1984 (Stats. 1983, ch. 490), in part provides: “Upon entry of any order pursuant to this section except the entry of summary judgment, a party may, within 10 days after service upon him of a written notice of entry of the order, or within such further time not exceeding 20 days as the trial court may for good cause allow, petition an appropriate reviewing court for a peremptory writ. If the notice is served by mail, the period within which to file the petition shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States.” Compliance with this time requirement is clearly mandatory if a party wishes to obtain prejudgment review of an order denying summary judgment. As a general rule, in the absence of a specific statutory provision “an appellate court may consider a petition for extraordinary writ at