Ventura County Railway Co. v. Hadley Auto Transport

[880]

Opinion

GILBERT, J.

A person is injured when a train hits his truck. In an effort to mitigate its liability for damages the railway sues the injured person’s employer under the Americans With Disabilities Act. (42 U.S.C. § 12101 et seq., hereinafter ADA.) Does the railway have standing? No.

Facts

John Romines was employed by Hadley Auto Transport. He was injured when a train operated by the Ventura County Railway Company, Inc. (the Railway) hit the truck he was driving. Romines collected workers’ compensation benefits and brought a third party action against the Railway.

Hadley’s workers’ compensation carrier sued the Railway in subrogation. The Railway cross-complained under the ADA and claimed that Hadley unlawfully discriminated against Romines when it refused to rehire him because of his injuries. The cross-complaint prayed for damages and injunctive relief including an order requiring reinstatement of Romines to his former employment. The Railway’s theory is that Romines’s employment would serve to mitigate damages.

Hadley demurred on the ground that the Railway had no standing to bring the action. The trial court sustained Hadley’s demurrer, and the Railway appeals the ensuing judgment. We affirm.

Discussion

Code of Civil Procedure section 367 provides, “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” The real party in interest is “the person possessing the right sued upon by reason of the substantive law.”

(Killian

v.

Millard

(1991) 228 Cal.App.3d 1601, 1605 [279 Cal.Rptr. 877]; 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 103, p. 138.) Where the complaint states a cause of action in someone, but not the plaintiff, a demurrer will be sustained.

(Killian

v.