(County of San Francisco Super. Ct. No. CGC 04-436109) Superior Court of San Francisco City and County, No. CGC 04-436109, Ronald E. Quidachay, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
(County of San Francisco Super. Ct. No. CGC 04-436109)
Donald W. Dye and his wife, Valerie, (hereafter the Dyes) allege that Donald suffered from silicosis and other pulmonary diseases as a result of exposure to silica in his use of the defendants' defective products.*fn1 In a prior unpublished opinion on consolidated appeals (A114948 and A116022), this court reversed orders sustaining demurrers, without leave to amend, to the Dyes' third and fourth amended complaints. On remand, the Dyes filed a fifth amended complaint 108 days after the clerk of this court mailed notice of the issuance of remittitur. Defendants objected, asserting that the fifth amended complaint was untimely under Code of Civil Procedure section 472b.*fn2 The trial court agreed. The Dyes now appeal from the trial court's orders dismissing each of the defendants and also from the trial court's denial of their request for relief under section 473, subdivision (b).*fn3 We reverse.
I. Factual and Procedural Background
The Dyes filed their initial complaint in this action on November 5, 2004. Donald Dye alleged that he had been diagnosed with "silicosis, pulmonary fibrosis and allergic bronchopulmonary asperillosis." The complaint asserted that Donald Dye was physically harmed by silica exposure caused by equipment manufactured by defendants.
After several rounds of demurrers were sustained by the trial court, with leave to amend, the Dyes filed a third amended complaint on September 23, 2005. The third amended complaint named Caterpillar, Gardner Denver, Allis-Chalmers Corp. (Allis-Chalmers), Lippmann-Milwaukee, Deister, Telsmith, Bucyrus, Terex, Cedarapids, Portec, Ingersoll Rand, Eimco/Sandvik, NAACO, Atlas Copco, Robbins, Vallen Safety Supply Company (Vallen), Moldex-Metric, Inc. (Moldex-Metric), Wix Corp. (Wix), Tumsco, Inc. (Tumsco), Genuine Parts Company (Genuine), Napa Valley Auto Parts, Inc. (Napa Valley Auto Parts), and 3M Corporation (3M) as defendants. The third amended complaint included causes of action for negligence, "strict liability--failure to warn," "strict liability--design defect and consumer expectation," and breach of implied warranties. In addition, in the complaint's sixth cause of action, Valerie Dye sought damages for loss of consortium.
The Third Amended Complaint and the First Appeal
A number of defendants responded to the third amended complaint by filing demurrers. After hearing argument, on May 15, 2006, the trial court issued an order and statement of decision in which it sustained the demurrers of defendants Gardner Denver, Lippmann-Milwaukee, Deister, Telsmith, Bucyrus, Terex, Cedarapids, Portec, and Ingersoll Rand without leave to amend. The court treated Caterpillar's demurrer as a motion to strike and sustained "the demurrer of defendant Caterpillar, Inc." without leave to amend. It also sustained the demurrers of Moldex-Metric, Vallen, and 3M, but granted the Dyes leave to amend the complaint with respect to those defendants. On July 14, 2006, the Dyes filed an appeal (A114948) from the trial court's order sustaining the demurrers to the third amended complaint, without leave to amend, and striking the complaint as to Caterpillar.*fn4
The Fourth Amended Complaint and the Second Appeal
Fifteen days after the trial court's May 15, 2006 order, the Dyes filed a fourth amended complaint. The fourth amended complaint named Allis-Chalmers, Eimco/Sandvik, Atlas Copco, Robbins, Vallen, Moldex-Metric, Wix, Tumsco, Napa Valley Auto Parts, 3M, and NACCO as defendants. The fourth amended complaint did not name the first appeal defendants.*fn5
Defendants Eimco/Sandvik, Atlas Copco, and Robbins responded to the fourth amended complaint by filing demurrers. The trial court sustained the demurrers to the fourth amended complaint without leave to amend. Judgments were then entered in their favor.
The Dyes filed an appeal (A116022) from the judgments entered in favor of Eimco/Sandvik, Atlas Copco, and Robbins.*fn6 The Dyes stipulated with NACCO and Allis-Chalmers that they would not have to file a responsive pleading to the fourth amended complaint and that they would be bound by the results of the Dyes' first and second appeals.
Decision on First and Second Appeals
On November 17, 2008, this court concluded, in its consolidated opinion on the first and second appeals, that the Dyes' allegations against both the first appeal defendants and the second appeal defendants were sufficient to survive demurrer. It was also determined that the trial court abused its discretion in striking the third amended complaint as to Caterpillar. The disposition provided: "The judgments are reversed, and the case is remanded for further proceedings." Remittitur issued on January 26, 2009, and the court clerk mailed notice of its issuance that same day.
Trial Court Proceedings After Remand
On February 12, 2009, 17 days after issuance of the remittitur, counsel for Ingersoll Rand pointed out to the Dyes' counsel that it was no longer named as a defendant in the fourth amended complaint. On February 16, 2009, the Dyes' counsel asked the trial court to set a case management conference.
On February 26, 2009, 31 days after issuance of the remittitur, counsel for the Dyes sought to meet and confer with defendants regarding a date for the case management conference. Several of the first appeal defendants indicated to the Dyes' counsel that they would not attend a case management conference because they were not named parties in the fourth amended complaint.
On April 9, 2009, 73 days after issuance of the remittitur, the Dyes noticed a motion for leave to file a fifth amended complaint. The Dyes' motion explained: "The sole purpose of the Fifth Amended Complaint is to add back those defendants who had been dismissed as a result of the Demurrers and are thus not included in the Fourth Amended Complaint. Otherwise no new defendants are added. The proposed Fifth Amended Complaint does not change any of the charging allegations or other operative pleading as to any defendant." The motion also stated: "[I]f the court finds that [section] 472(b) [sic] is applicable to this case, and should the proposed filing of the Fifth Amended Complaint be deemed untimely, plaintiffs request relief pursuant to . . . section 473[, subdivision] (b)." The Dyes' attorney stated, in her accompanying declaration: "Following receipt of the [r]emittiturs I was not aware of any applicable deadline for filing any amended pleading. My thought was to set the case for a case management conference in order to sort out the rather complicated pleading issues that presented on the case being remanded. Any error on my part was inadvertent. I thought leave of court would be necessary to file an amended [c]omplaint to include all the parties."
On April 15, 2009, counsel for the Dyes and counsel for the second appeal defendants appeared for a case management conference. The first appeal defendants did not appear. The case ...