Idding v. North Bay Construction Co.

Opinion

POCHÉ, J.

Plaintiff and appellant David E. Idding (appellant) appeals from a judgment entered in favor of defendants and respondents North Bay Construction Company, Inc., R & R Maher Construction Company, Inc., McBail Company and Wes Bailey (respondents) which was entered following their successful motions for summary judgment. The sole issue presented is whether appellant’s second amended complaint is barred by the applicable statute of limitations, Code of Civil Procedure section 340, subdivision (3).

Facts

On November 22, 1991, appellant filed a complaint in the San Joaquin County Superior Court which set forth a cause of action on general negligence seeking compensation for personal injuries he sustained on December 5, 1990, while working at “Stockton Sewer Project, French Camp Rd. & Interstate 5, Stockton, County of San Joaquin, State of California.” In particular he alleged that while he “was helping to place the rebar in a hole on the job site, the dirt on which he was standing gave way” causing him to slide into the hole while holding the rebar. Appellant named as defendants Dorfman Construction Company, Inc., Black & Veatch, Black & Veatch Construction, Inc., Black & Veatch Power Development Corporation and H. Max Lee, Inc.

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On February 22, 1993, appellant filed an amendment to the complaint substituting respondents for Doe defendants.

Each of respondents answered the first amended complaint. Shortly thereafter—but after the statute of limitations had run—counsel for appellant and counsel for only the original defendants entered into a stipulation allowing amendment of the first amended complaint to specify the correct location of his accident as follows: “Storm Drain Trunk Improvements, Linda Vista Development District, Napa, California.” An order allowing this amendment was filed April 23, 1993. Approximately four weeks later appellant dismissed with prejudice as to each of the original defendants.

Respondents each moved for summary judgment on the ground that the statute of limitations was a complete defense. The trial court granted respondents’ motions and entered judgment accordingly.

This timely appeal followed.