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James Fennelly v. Jessie Thayer

July 21, 2011

JAMES FENNELLY, PLAINTIFF AND APPELLANT,
v.
JESSIE THAYER, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 07-CV-4990)

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

Fennelly v. Thayer

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

A plaintiff must file a tort action for personal injury within two years after accrual of the action. (Code Civ. Proc., § 335.1.) However, the beginning of the two-year period is delayed while the plaintiff is "insane." (Code Civ. Proc., § 352, subd. (a).)

Plaintiff James Fennelly filed a complaint alleging that he sustained personal injury as a result of a vehicular accident caused by defendant Jessie Thayer. The trial court, however, granted summary judgment in favor of Thayer because Fennelly failed to file the complaint within the statute of limitations.

On appeal, Fennelly contends that the trial court (1) erred by granting summary judgment as to the statute of limitations issue because he asserted that he was insane for at least 14 days between the accident and the filing of the complaint, and (2) abused its discretion in granting summary judgment, alternatively, based on his failure to file his own separate statement responding to Thayer's separate statement of undisputed facts. Neither contention has merit. Therefore, we affirm.

BACKGROUND

As alleged by Fennelly, Thayer's car collided with Fennelly's car on August 26, 2005, causing injuries to Fennelly.

Fennelly filed a complaint for damages on September 7, 2007, two years and 12 days after the accident.*fn1 The complaint alleged that "at times herein between August 26, 2005 and the date of filing herein, [Fennelly] was not mentally competent for a minimum of at least 14 days."

Thayer filed a motion for summary judgment, asserting that Fennelly's personal injury claim was barred by the two-year statute of limitations. In support of his motion, Thayer filed a separate statement of undisputed facts in which he stated, as relevant to this appeal, that:

(1) Fennelly attributed his mental incompetence to the injuries he sustained in the accident and his wife's subsequent death from cancer;

(2) Fennelly did not recall hitting his head in the accident;

(3) Fennelly was in the hospital for three days after the accident;

(4) nurses visited Fennelly's home two to three times per week to help him, including bathing him, during the three to four weeks ...


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