Brumley vs. FDCC California, Inc. Asbestos Case Footnotes

Read the footnotes in the appellate decision in Brumley, et. al vs. FDCC California, Inc. In this decedent asbestos cancer case, the plaintiffs appeal the lower court’s decision on the wrongful death claim filed on behalf of the widow and children and the widow’s loss of consortium.

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

2 Section 583.210 now states more succinctly, “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” Section 583.250, subdivision (a)(2) prescribes dismissal as the remedy for a violation.

3 In applying the section 583 exception for impracticability, General Motors focused solely on the wrongful death action. Plaintiffs here made no separate attempt to demonstrate that it would have been impractical to bring their wrongful death and loss of consortium claims to trial within the time allotted the survivorship claims, since, unlike the situation in General Motors, the former claims were not the subject of a separate action.

4 General Motors did not address dismissal of the wrongful death claims. Because these claims were contained in a separate action, and were therefore governed by a different five-year period than the survivorship claims, dismissal of the wrongful death claims was neither raised nor considered as a possibility.

5 We note that these cases are sufficiently new that neither was available to the trial court when it ruled that the new causes of action did relate back to Brumley’s original claims.

6 Defendants also cite Edwards v. Superior Court (2001) 93 Cal.App.4th 172, but in that case the court itself noted, “Application of the relate-back doctrine is unnecessary under the circumstances here.” (Id. at p. 181.) It provides no guidance.

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