Lerma v. Cottrell CA4/1

Filed 5/20/24 Lerma v. Cottrell CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NICHOLAS LERMA et al., D082595

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2018- 00008499-CU-PL-CTL) COTTRELL, INC.,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed. Carpenter & Zuckerman, John P. Kristensen, and Frank M. Mihalic, Jr., for Plaintiffs and Appellants. SBE and Jeffrey Y. Choi for Defendant and Respondent. Nicholas and Gina Lerma appeal from an order dismissing their second of two product liability cases against Cottrell, Inc. for failure to serve the summons and complaint within the statutory three-year deadline after filing.

(Code Civ. Proc.,1 §§ 583.210, 583.250.) We reject their sole contention that

1 Undesignated statutory references are to the Code of Civil Procedure.

service of the summons and complaint was unnecessary because Cottrell made a “general appearance in the action.” (§ 583.220.) Accordingly, we affirm the order of dismissal. FACTUAL AND PROCEDURAL BACKGROUND A. Lerma I, Lerma II, and Wehn Actions In February 2018, the Lermas filed a lawsuit in San Diego Superior Court against Cottrell and other defendants arising from an accident Nicholas suffered when he fell from the upper deck of a Cottrell truck rig in February 2016. (Lerma v. Cottrell, Inc., San Diego Superior Court No. 37- 2018-00008499-CU-PL-CTL (Lerma I).) In October 2019, the Lermas filed a second lawsuit (represented by the same counsel) in San Diego Superior Court against Cottrell and other defendants arising from another accident Nicholas suffered when he fell from a Cottrell truck rig in November 2018. (Lerma v. Cottrell, Inc., San Diego Superior Court No. 37-2019-00057325-CU-PL-CTL (Lerma II).) In May 2019, Michael and Sharan Wehn (represented by the same counsel as the Lermas) filed a lawsuit in San Diego Superior Court against Cottrell and other defendants arising from an accident Michael suffered when he fell from a Cottrell truck rig in May 2017. (Wehn v. Cottrell, Inc., San Diego Superior Court No. 37-2019-00024330-CU-PL-CTL.) B. Consolidation for Pretrial Purposes Only In November 2019, counsel stipulated to consolidate all three cases under the Lerma I case number “for pretrial purposes only.” The parties further stipulated “[t]hat each matter be ultimately adjudicated by separate trials after pretrial proceedings are completed.” Accordingly, the Lerma I court entered an order consolidating all three cases “into the [Lerma I] case number . . . for pretrial purposes only” and directing that the files in the