Brumley vs. FDCC Asbestos Case Discussion: The Five Year Rule

Read the discussion of the applicability of the five year rule 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.

Defendants argue that to apply a different five-year rule to causes of action within a complaint violates the plain language of section 583.310, which refers to dismissal of an entire “action,” rather than separate causes of action within an action. (See, e.g., Nassif v. Municipal Court (1989) 214 Cal.App.3d 1294, 1298.) While we recognize the logic of this objection, we are bound by Barrington in this regard. Former section 581a also spoke of an “action” in the singular, but Barrington was nonetheless willing to treat causes of action separately under the statute, even though they were part of the same action. Further, the court expressly rejected a similar argument made by the defendants in Barrington, premised on the language of then newly-enacted section 583.210, concluding that there was no evidence the Legislature intended to preclude application of the relation-back doctrine in these circumstances. (Barrington, supra, 39 Cal.3d at pp. 155–156.)

Defendants also argue that the filing of an amended complaint has consistently been held not to restart the five years under section 583.310. The cases they cite, however, all predate Barrington. (E.g., Rosefield Packing Co. v. Superior Court (1935) 4 Cal.2d 120, 125; Kowalski v. Cohen, supra, 252 Cal.App.2d at pp. 979–980; Anderson v. City of San Diego (1953) 118 Cal.App.2d 726, 731.) More importantly, there is no indication in any of the cited decisions that the claims introduced in the amended complaints differed in any substantial way from the original claims—in other words, that they did not relate back to the original claims. Barrington only helps plaintiffs here if their claims are sufficiently distinct from the decedent’s original claims that they do not relate back, a subject discussed below. Because none of the cited cases even mentions, let alone considers, the relation-back doctrine, they cannot be deemed controlling authority in light of the intervening decision in Barrington.

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