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Aguilera v. Heiman

May 29, 2009

FREDDY AGUILERA, PLAINTIFF AND APPELLANT,
v.
ROBERT P. HEIMAN ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, Linda K. Lefkowitz, Judge. Affirmed. (Los Angeles County Super. Ct. No. SC 093569).

The opinion of the court was delivered by: Flier, J.

CERTIFIED FOR PUBLICATION

Freddy Aguilera was injured on November 5, 1997. On April 16, 2007, almost 10 years later, Aguilera filed this civil action against respondents Robert P. Heiman, individually and doing business as Pegasus Properties (Heiman), and 2612 Montana Avenue Owners Association (Association). Respondents demurred to an amended complaint on the basis that Aguilera‟s action for personal injuries was barred by the statute of limitations. Aguilera contended that the statute of limitations was tolled by his timely filing of a claim for workers‟ compensation benefits against his unlicensed and uninsured employer, Mark Hruby, doing business as Rube‟s Rain Gutter Service (Hruby), and the Uninsured Employers Benefits Trust Fund (UEF). The trial court sustained the demurrer without leave to amend. Aguilera appeals from the resulting dismissal of his action. We affirm.

We hold the claim is barred by the one-year statute of limitations under Code of Civil Procedure former section 340, subdivision (3) and the equitable tolling doctrine did not apply to extend appellant‟s time to file an action against respondents. Further, the trial court did not abuse its discretion in sustaining the demurrers without leave to amend.

FACTS AND PROCEDURAL HISTORY*fn1

The basic facts for purposes of this appeal are not in dispute. Aguilera was injured on November 5, 1997, when he came into contact with a high voltage electrical wire while installing rain gutters on a condominium in Santa Monica, California.

Well within one year after the incident, on January 26, 1998, Aguilera filed an application to receive workers‟ compensation benefits, naming his employer Hruby and UEF as defendants. On June 16, 1999, more than one and a half years after Aguilera‟s injury, and again on June 3, 2002, more than three and a half years after such injury, the workers‟ compensation judge ordered Pegasus Properties, i.e., respondent Heiman, joined as a defendant to the workers‟ compensation proceeding. After that, apparently on August 12, 1999, Aguilera added respondent Association (incorrectly identified as "Montana Villas Homeowners Association") as a party defendant to his workers‟ compensation proceeding.*fn2

The workers‟ compensation matter proceeded to an award finding Hruby to be Aguilera‟s employer and liable for workers‟ compensation, including a 90 percent permanent disability rating. The Workers‟ Compensation Appeals Board granted reconsideration and determined that, because he did not possess a valid contractor‟s license, Hruby was not Aguilera‟s employer for workers‟ compensation purposes and that Heiman was the employer for such purposes as a professional property management business and as agent for the homeowners‟ association.

Upon Heiman‟s petition for a writ of review of the board‟s decision, Division Three of this court held that, in addition to Hruby, respondents Heiman and the Association were also liable under the workers‟ compensation statutes. (Heiman v. Workers' Comp. Appeals Bd. (2007) 149 Cal.App.4th 724.) Division Three held that Heiman had joint and several liability as an employer for workers‟ compensation purposes because he had hired an unlicensed and uninsured contractor, and the Association was liable as Heiman‟s principal. (Id. at pp. 738, 743-744.) The court further held, however, that the individual condominium owners were not liable for such benefits. (Id. at pp. 744-745.)

Aguilera then filed the present civil action for negligence against respondents and individual homeowners on April 16, 2007, almost 10 years after his injury.

Respondents demurred on grounds including the statute of limitations. The trial court ultimately sustained the demurrers without leave to amend. The trial court ruled that the applicable personal injury limitations period at the time of Aguilera‟s injury was one year. (Code Civ. Proc., former § 340, subd. (3).) The court further ruled that the doctrine of equitable tolling under Elkins v. Derby (1974) 12 Cal.3d 410 did not apply to extend the statute of limitations.

The trial court entered a judgment dismissing the action, and Aguilera timely appealed.

STANDARD OF REVIEW

Aguilera incorrectly asserts that in reviewing the sustaining of demurrers this court examines the trial court‟s action for an abuse of discretion. Respondents, however, correctly state that this court applies two separate standards of review on appeal from a judgment of dismissal after a demurrer is sustained without leave to amend. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) We first review the complaint de novo to determine whether the complaint alleges facts sufficient to state a cause of action under any legal theory or to determine whether the trial court erroneously sustained the demurrer as a matter of law. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) Second, we determine whether the trial court abused its discretion by sustaining the demurrer without leave to amend. (Ibid.) Under both standards, appellant has the burden of demonstrating that the trial court erred. (Ibid.) An abuse of discretion is established when "there is a reasonable possibility the plaintiff could cure the defect with an amendment." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

CONTENTIONS

Aguilera asserts his action is not barred by the statute of limitations because it was equitably tolled while he was pursuing his workers‟ compensation remedy. He further asserts the principles of equitable estoppel should apply because it was respondents who prolonged the resolution of the workers‟ ...


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