The full case caption appears at the
end of this opinion. In this case we determine primarily whether a special statute of limitations for injury or illness caused by exposure to asbestos (Code Civ. Proc., ‘ 340.2) bars anaction for a certain asbestos-related disease brought by a worker who retired before suffering a disability as defined by the statute. The Court of Appeal held theaction was barred because the plaintiff had brought an earlier action against the same defendant for a different disease arising from the same asbestos exposure. Aswill appear, we conclude that the second action is not time-barred and hence the judgment of the Court of Appeal must be reversed. Facts For two decades beginning in the early 1940′ s, plaintiffs’ decedent Arthur Mitchell was employed in various industrial workplaces where he was exposed toasbestos. Mitchell’ s exposure to asbestos ended in 1963 when he went into business for himself as a television repairman. Nevertheless, in the late 1970′ s he beganexperiencing shortness of breath. In 1979 his condition was diagnosed as asbestosis, a noncancerous, chronic breathing impairment common in workers who havesuffered prolonged exposure to asbestos. Despite his condition, Mitchell was able to continue working in his television repair business for another decade. He retiredin 1989, not because of breathing difficulties but because he had reached the normal retirement age of 65 and was Atired of working. Mitchell I Mitchell’ s shortness of breath, however, gradually grew worse. On October 13, 1993, he filed an action in San Francisco Superior Court (case No. 955576,hereafter Mitchell I) against Asbestos Corporation and numerous other defendants involved in making, selling, or using asbestos products. The complaint wasserved on some two dozen of the named defendants, but Asbestos Corporation was not among them. The Mitchell I complaint primarily alleged that Mitchell’ s exposure to asbestos caused him to suffer Abreathing difficulties, asbestosis, and/or other lungdamage.
FN1 The complaint then specifically alleged that APlaintiff was diagnosed with asbestosis and asbestos-related pleural disease on or about1979. The complaint prayed for compensatory and punitive damages. Mitchell II In December 1995, before trial began in Mitchell I, Mitchell began to experience abdominal pain. A month laterCin January 1996Cexploratory surgery becamenecessary, and it revealed a cancerous growth throughout Mitchell’ s abdominal cavity. The growth was diagnosed as a malignant peritoneal mesothelioma, a rareand inevitably fatal cancer primarily triggered by exposure to asbestos. Again within a monthCon February 3, 1996CMitchell filed another action in the SanFrancisco Superior Court (case No. 975884, hereafter Mitchell II) against Asbestos Corporation and other defendants involved in making, selling, or usingasbestos products. The complaint was served on Asbestos Corporation and several other named defendants. The Mitchell II complaint primarily alleged that Mitchell’ s exposure to asbestos caused him to suffer Alung and/or other cancer, mesothelioma. The complaint thenspecifically alleged that APlaintiff was diagnosed with mesothelioma on or about January 30, 1996 and with asbestosis and asbestos-related pleural disease on orabout 1979. The complaint again prayed for compensatory and punitive damages. Consolidation and Trial On April 12, 1996Cthe day after Asbestos Corporation filed its answerCMitchell moved for an order to consolidate his two actions (Code Civ. Proc., ‘ 1048,subd. (a)) and to advance the resulting consolidated case for trial because of substantial medical doubt that he would survive for more than six months (id., ‘ 36,subd. (d)). On April 30, 1996, the court granted the motion in both respects. Because of pretrial settlements the case went to trial against Asbestos Corporation alone.
FN2 The taking of testimony began on August 6, 1996. Themedical witnesses testified to the following facts. The alveoli are the numerous microscopic air sacs in the lung where the vital process of gas exchange takes place, i.e., where oxygen is absorbed into thebloodstream from the inhaled air and carbon dioxide is diffused out of the bloodstream into the air to be exhaled. For gas exchange to occur, the molecules ofoxygen and carbon dioxide must pass through the interstitium or connective tissue, a thin, elastic membrane that connects, among other organs, the alveoli and thecapillaries that surround them. The witnesses described the mechanism by which asbestos causes asbestosis. Airborne asbestos fibers are inhaled into the lungs and pass into the airways. Manyare intercepted and rejected by the clearance mechanisms of the airways, but fibers that are not intercepted may reach the alveoli. Fibers smaller than 50 microns inlength are able to enter the alveoli.
FN3 Fibers that enter the alveoli are deposited on the tissue surface and attract macrophages, white blood cells thatattempt to absorb and eliminate the fibers. This effort fails, and causes an inflammation that in turn stimulates fibroblastsCspecialized cells that make connectivetissueCto increase their production of such tissue. The result is fibrosis or scarring, a gradual but irreversible thickening and stiffening of the connective tissue.
FN4 Asbestos disease is dose-responserelated: the longer or the more intense the asbestos exposure, the greater the injury. In addition, scarring continues even after the victim is no longer exposed toasbestos, because the fibers remain embedded in the connective tissue and the tissue continues to react to them.
FN5 The scarring process makes the connective tissue increasingly resistant to gas exchange, and the affected alveoli eventually cease to function. If enough alveoli arethus affected, a characteristic symptom of asbestosis appears: increasing shortness of breath under exertion. The latency period of a disease is the period betweenthe time of exposure to the disease-causing agent and the time when the disease has progressed to the point at which it can be diagnosed; the average latency periodof asbestosis is 20 years. Although the disease can drastically restrict the activities of its victims and may lead to a higher risk of other diseases such ascardiorespiratory complications and cancer, AAsbestosis is neither malignant nor necessarily fatal. (1 Encyclopedia of Human Biology (1991) p. 420.) Indeed, asthe case at bar illustrates, a person can live for decades after a diagnosis of asbestosis. The medical witnesses also described mesothelioma. The mesothelium is a layer of specialized cells forming a thin membrane that lines certain body cavities: whereit covers the lungs and the inner surfaces of the chest wall, it is called the pleura; where it covers the organs of the abdominal cavity and the inner surfaces of thatcavity, it is called the peritoneum. Mesothelioma is a form of cancer that starts to grow in such lining: the most common form starts in the lining of the chest cavityand is therefore called pleural mesothelioma; less common is the form that starts in the lining of the abdomen, called peritoneal mesothelioma.
FN6 Observation has established a strong linkage between mesothelioma and exposure to asbestos fibers. As explained above, inhaled asbestos fibers enter thebloodstream through the connective tissue of the lung. But while some fibers remain embedded in that tissue and cause asbestosis, others migrate to different parts ofthe body. Some fibers are carried in the bloodstream; others move through the lymphatic system; still others are swallowed with mucus and enter the body throughthe digestive system. However they enter the body, asbestos fibers may ultimately lodge in the pleura or the peritoneum. Although the mechanism by which such fibers cause malignant mesothelioma is not yet fully understood, it is believed they may trigger chromosomal abnormalities incells of the pleura or the peritoneum. Ordinarily the body’ s immune system will detect and eliminate cells having such mutations. But if enough of these genetic errorsoccur over a long period of time, the immune system may fail to eliminate them; the defective cells may then become malignant and rapidly multiply, and a tumor maystart to grow in the mesothelial tissue. Whatever its precise etiology, the general characteristics of mesothelioma are well known. The witnesses agreed that malignant mesothelioma is a very rare cancer,even among persons exposed to asbestos; no one can predict whether or when such a person will develop mesothelioma. Among the population at large, malignantmesothelioma strikes only two or three persons per million each year. Yet it takes far less asbestos exposure to cause mesothelioma than to cause asbestosis, andmesothelioma can even be caused by exposure to a few substances other than asbestos. Mesothelioma is often difficult to diagnose: in the form of the disease from which Mitchell sufferedCperitoneal mesotheliomaCthe tumor first grows as a spreadingmass in the abdominal cavity of the victim, and its early signs are such nonspecific symptoms as stomach pain, nausea, vomiting, and weight loss. Mesothelial tumorsinitially grow very slowly; the disease has an average latency period of 30 to 40 years. But by the time the cancer is diagnosed, it is often in an advanced stage and israpidly metastasizing. It is also inevitably fatal: there is no known cure for any form of malignant mesothelioma. As will appear, in the case at bar Mitchell died 17months after the diagnosis of mesothelioma; the average survival time is less than a year. In sum, the medical testimony established without contradiction that the asbestosis found in Mitchell’ s lungs in 1979 and the malignant mesothelioma found in hisabdomen in 1996 were two separate and distinct diseases. Except for the likelihood that both were initially triggered by Mitchell’ s occupational exposure toasbestos, the two were unrelated in all respects: one did not cause or evolve into the other, they developed by means of wholly different mechanisms and at widelydifferent rates, affected different tissue and organs, manifested themselves at different times and by different symptoms, and carried very different outcomes. As oneof the medical experts explained, we deal here with Atwo different diseases, asbestosis, which is scar tissue formation . . . and mesothelioma, which is cancer . . ..
FN7 The Judgment On August 15, 1996, after both sides rested, Asbestos Corporation moved to dismiss the portion of the action seeking damages for Mitchell’ s mesothelioma. Thesole ground of the motion was that Mitchell II was barred by the statute of limitations set forth in Code of Civil Procedure section 340.2 (hereafter section 340.2) asthat statute was construed in Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349 (hereafter Darden). The court denied the motion. The case went to the jury on theories of negligence and liability for defective design and failure to warn. The jury returned a special verdict finding AsbestosCorporation liable on both theories and awarded compensatory damages, making separate noneconomic damage awards for asbestosis and for mesothelioma. Thejury also found that Mitchell suffered appreciable harm before January 4, 1986 (the effective date of Proposition 51), and that Asbestos Corporation was liable for10 percent of Mitchell’ s injuries. After ordering offsets for third party settlements, the court rendered judgment for Mitchell without regard to Proposition 51.Asbestos Corporation asserted the statute of limitations again in motions for judgment notwithstanding the verdict and new trial. The court denied the motions. The Appeal Asbestos Corporation appealed from the judgment. On June 30, 1997, while the appeal was pending, Mitchell died from the mesothelioma.
FN8 The Court of Appeal reversed the judgment in its entirety. The court first held that Mitchell II was time-barred by section 340.2. For this holding the court reliedprimarily on Darden, supra, 40 Cal.App.4th 349. Second, the Court of Appeal held the trial court lacked personal jurisdiction over Asbestos Corporation in Mitchell I because it had not been served in that action.The Court of Appeal found that Asbestos Corporation had not made a general appearance in the asbestosis action sufficient to constitute the equivalent of personalservice. (Code Civ. Proc., ‘ 410.50, subd. (a).) We granted review. I The first issue is whether the Court of Appeal was correct in holding that Mitchell II was time-barred by section 340.2. We conclude the action was not barred. Section 340.2 was enacted in 1979, and has not been amended. It provides in relevant part: “(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following: “(1) Within one year after the date the plaintiff first suffered disability. “(2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused orcontributed to by such exposure. “(b) ‘ Disability’ as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee’ sregular occupation. (Italics added.) Because a plaintiff cannot discover that his disability was caused by asbestos exposure before he suffers that disability, the disability must in all cases either precedeor accompany its discovery. The two paragraphs of subdivision (a) of section 340.2 thus collapse into one, and the statute may be read as providing in effect that anaction for injury or illness arising from asbestos exposure must be filed within one year after the date the plaintiff first suffered disability and either knew or shouldhave known the disability was caused or contributed to by that exposure.
FN9 In the case at bar there is no doubt Mitchell II was governed by section 340.2: the medical testimony establishedCand plaintiffs do not disputeCthat Mitchell’ smesothelioma was an Aillness based upon exposure to asbestos within the meaning of subdivision (a) of the statute. Giving the words of section 340.2 their plain meaning, however, we find Mitchell II was timely. Although section 340.2 applies only to actions for injury or illnessarising from asbestos exposure, the statute does not make the limitations period run from the date of that injury or illness or its discovery, as similar statutescommonly provide. (See, e.g., Code Civ. Proc., ‘ 340.15 [action for injury or illness caused by domestic violence].) Subdivision (a) of section 340.2 selects adifferent date, making the limitations period run instead from the date the plaintiff suffered Adisability and discovered that the disability was caused by asbestosexposure. And to underscore this difference, subdivision (b) of the statute specially defines Adisability as here used to mean Athe loss of time from work as a resultof such exposure which precludes the performance of the employee’ s regular occupation. (Italics added.) Although this is the first time we have considered section 340.2, the Courts of Appeal have construed the statute in a number of relevant decisions. From the firstcase to do so, Blakey v. Superior Court (1984) 153 Cal.App.3d 101, 105-106, we learn the intent of the Legislature in enacting section 340.2: it was, in essence,to provide a special statute of limitations for asbestos-related illnesses consistent with the fact that such slowly developing occupational diseases typically becomesymptomatic long before they become disabling, at least in the sense of disabling their victims from continuing to do their regular job. And that is the sense in whichsection 340.2 uses the term Adisability: the court in Puckett v. Johns-Manville Corp. (1985) 169 Cal.App.3d 1010, 1017 (Puckett), correctly inferred from thewording of the statute and its remedial purpose that the term Adisability as used therein refers to Aa permanent termination of an individual’ s capacity to perform thetasks involved in his or her regular occupation rather than to some temporary interference with that capacity. A subsequent decision stressed the remedial purpose of section 340.2. In Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727 (Nelson), Nelson wasoccupationally exposed to asbestos from 1949 to 1956 and again beginning in 1963. In 1976 he was diagnosed as having asbestosis, but was able to continueworking. In 1981, while still employed, he filed an action for personal injury damages caused by his asbestosis. The trial court sustained a demurrer on statute oflimitations grounds and dismissed the action. The Court of Appeal reversed, holding that the one-year limitations period of section 340.2 had not begun to run whenNelson filed his action, because he was still employed at the time and therefore had not suffered Adisability within the meaning of the statute. Among other reasoning, the Court of Appeal in Nelson, supra, 172 Cal.App.3d 727, explained that Awith the passage of section 340.2, the Legislature codified amore liberal disability plus discovery rule, providing that the limitation period never commences to run for plaintiffs who know they have suffered injury or illness fromasbestos exposure until ‘ disability’ has occurred. [Citation.] [&] This delayed accrual rule is more in keeping with the gradually disabling nature of the disease. Sinceasbestosis is a progressive lung disease, the product of prolonged exposure to asbestos fibers and dust, the disease may be detected before there has been anysignificant respiratory impairment or resulting partial or total disability. [Citations.] Principles of fairness and social utility favor application of this remedial statute toplaintiffs such as Nelson. It is for society’ s as well as the individual’ s benefit that asbestosis victims should work as long as they are able to do so without placingtheir rights in jeopardy. [Citation.] It would make no sense to penalize those victims who may have received an early diagnosis, particularly since there appears to beno evidence of any cure. (172 Cal.App.3d at p. 735.) In Nelson, supra, 172 Cal.App.3d 727, the plaintiff was still employed when he filed his action. In Duty v. Abex Corp. (1989) 214 Cal.App.3d 742 (Duty), theplaintiff was no longer employed when she filed her actionCbut the outcome was the same, because she had retired for reasons unrelated to asbestos exposure. Dutywas occupationally exposed to asbestos in the mid-1940′ s and again in the early 1950′ s. She retired in 1968 on longevity grounds, and devoted herself tohomemaking. In 1979 she learned that she had lung cancer and that it had been caused by her earlier asbestos exposure. She filed an action for personal injuries dueto that exposure in 1985. The trial court granted a defense motion for directed verdict on statute of limitations grounds and dismissed the action. The Court of Appeal reversed the judgment, holding that Duty had not suffered Adisability within the meaning of section 340.2 because her retirement was not theresult of her asbestos exposure. The court gave effect to the plain meaning of the words of section 340.2 in two respects. First, the court reasoned that subdivision(a) of the statute is not narrowly limited to actions by employees, but broadly applies on its face to Aany civil action for asbestos-related injury or illness, andtherefore includes actions by retirees as well. (Duty, supra, 214 Cal.App.3d at pp. 749-750.) The court then held, however, that the special definition of Adisabilityprovided in subdivision (b) of the statute is not broad enough to include persons who retire forreasons unrelated to asbestos exposure. The court stressed that subdivision (b) defines Adisability as used in the statute to mean Athe loss of time from work as aresult of [asbestos] exposure which precludes the performance of the employee’ s regular occupation. (Duty, supra, 214 Cal.App.3d at p. 750.) The defendantsurged the court to ignore the plain meaning of the statutory definition, but the court declined to do so. Rather, the court gave effect to each word of the definition,reasoning that AHad the Legislature used simply the terms ‘ work’ or ‘ regular occupation,’ we might find it possible to construe that language to encompass retireessuch as plaintiff who, although not a member of the labor force, could be considered engaged in the occupation or work of homemaking. However, the addition ofthe term ‘ employee’ and the context of the subdivision as a whole compel us to conclude the Legislature intended ‘ disability’ to apply only to persons employed inthe labor force. (Id. at p. 751, italics added.)
FN10 In Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425 (Uram), the plaintiff was likewise no longer employed when he filed his action, but it was conceded that hisretirement was a result of asbestos exposure. The outcome was therefore different. Uram was occupationally exposed to asbestos from 1940 to 1959, when hetook a disability retirement primarily because of his Alung problems. (217 Cal.App.3d at p. 1428.) In 1976 he learned he had pulmonary fibrosis caused by hisasbestosis exposure. He filed an action for personal damages due to that exposure in 1987. The trial court granted a defense motion for summary judgment on theground the action was barred by section 340.2. The Court of Appeal affirmed the judgment, holding that Uram suffered Adisability within the meaning of section 340.2 when he retired in 1959, and that he knewby 1976 that asbestos exposure had contributed to that disability. (Uram, supra, 217 Cal.App.3d at p. 1435.) His 1987 action was therefore barred by theone-year limitations period of section 340.2. Finally, in Williamson v. Plant Insulation Co. (1994) 23 Cal.App.4th 1406 (Williamson), the court harmonized the foregoing decisions, reiterating the holding ofDuty, supra, 214 Cal.3d 742, and distinguishing Uram, supra, 217 Cal.App.3d 1425. Williamson was occupationally exposed to asbestos from 1947 to 1977,when he was diagnosed with asbestosis. He continued to work for the same employer in the same position, but in locations with less asbestos exposure. In 1982 heretired because he believed the workplace was still unhealthy, and began a new career as a real estate salesman. In 1990 he was diagnosed with lung cancer, and inthe same year filed an action for personal injuries caused by both the asbestosis and the cancer. He died during trial. The jury found inter alia that Williamson’ s claim for damages from asbestosis was timely (no issue was raised as to the timeliness of his cancer claim). The trial courtentered judgment for Williamson for both economic and noneconomic damages. The Court of Appeal reversed the judgment for noneconomic and future economic damages on the ground they did not survive Williamson’ s death. On the statuteof limitations issue, however, the Court of Appeal upheld the finding of timeliness. The court cited Puckett, supra, 169 Cal.App.3d at page 1017, for the propositionthat as used in section 340.2 Adisability means a permanent incapacity to perform the tasks of the employee’ s regular job, and cited Duty, supra, 214 Cal.App.3dat pages 748-753, for the proposition that the limitations period of section 340.2 does not begin to run for a plaintiff who was not an employee, e.g., Awho retiredbefore the onset of what would otherwise been a disability. (Williamson, supra, 23 Cal.App.4th at p. 1419.) Applying these principles, the Court of Appeal held there was substantial evidence that Williamson was not disabled within the meaning of section 340.2 either whenhis asbestosis was diagnosed in 1977 or when he retired in 1982. Accordingly, his 1990 action was not barred by section 340.2. The court also distinguishedUram, supra, 217 Cal.App.3d 1425, on the ground that while Uram retired because he was disabled within the meaning of section 340.2, AIn contrast, here therewas substantial evidence Williamson retired by his own choice to pursue another occupation, selling real estate. (Williamson, supra, 23 Cal.App.3d at pp. 1419,1420.) In the case at bar Mitchell II was timely under the foregoing decisions construing section 340.2. Directly in point are Duty, supra, 214 Cal.App.3d 742, andWilliamson, supra, 23 Cal.App.4th 1406. As in both those cases, Mitchell retired for reasons unrelated to his earlier asbestos exposure: after working all his life, hereached the normal retirement age of 65 and voluntarily left the workforce. It follows there was no Aloss of time from work as a result of [asbestos] exposure whichpreclude[d] the performance of [plaintiff' s] regular occupation. (‘ 340.2, subd. (b).) Again as in the cited cases, it follows that Mitchell did not suffer Adisabilitywithin the meaning of section 340.2 and hence the one-year limitations period of the statute had not begun to run when he filed Mitchell II. The action was thustimely, as the trial court ruled. Indeed, it is for precisely the same reasons that the one-year limitations period had also not begun to run when Mitchell filed Mitchell I, even though that filing tookplace 14 years after he was diagnosed with the asbestosis for which Mitchell I sought damages. The Court of Appeal correctly described Mitchell I as Aunbarred,but failed to explain the reasons why it was timely. As shown above, when those reasons are understood they appear equally applicable to both actions: if one istimely, both are. The Court of Appeal, however, held to the contrary, relying primarily on the reasoning of Darden, supra, 40 Cal.App.4th 342. We therefore begin by reviewingthat reasoning. Darden was occupationally exposed to asbestos from 1946 to 1970. In 1970 he retired from his job as a sheet metal worker at Mare Island Naval Shipyard. In1974 he began working as a repairman for a real estate company, but was laid off in 1982. In 1986 he was diagnosed with pulmonary fibrosis and asbestos-relatedpleural diseaseCnoncancerous lung diseases like asbestosis. In 1987 he filed an action for personal injuries due to asbestos exposure against General Motors andother defendants (Darden I). He did not serve General Motors. In 1990 he settled his claims against certain defendants and dismissed the action against them withprejudice; at the same time, however, he dismissed the action against General Motors and the remaining defendants without prejudice. In 1991 Darden served and filed a virtually identical complaint against General Motors and the other defendants (Darden II). In pretrial and posttrial motionsGeneral Motors argued unsuccessfully that Darden II was time-barred by section 340.2. General Motors appealed from a judgment in favor of Darden. Dardendied pending the appeal. The Court of Appeal reversed the judgment, holding that Darden II was time-barred by section 340.2. Although its opinion is unclear onthe point, the court appears to have based its holding on two grounds. For one ground, the court seems to have applied section 340.2 on its face. The jury had found that when Darden was laid off from his then-Aregular occupation (’340.2, subd. (b)) as a repairman for a real estate company in 1982, he was not disabled from performing that occupation. The Court of Appeal expressly concludedthere was no substantial evidence to support that finding. (Darden, supra, 40 Cal.App.4th at p. 352.) The court then impliedly inferred the contrary, i.e., that in1982 Darden did Asuffer[ ] disability within the meaning of subdivision (a)(1) of section 340.2. The court further declared that Athe evidence conclusivelyestablished that his illness at that time was related to asbestos exposure and that at the latest plaintiff was on notice in 1986 [i.e., when his pulmonary fibrosis andpleural disease were diagnosed] that he had asbestos-related lung disease (40 Cal.App.4th at p. 352). The court apparently concluded that by 1986 Darden thusknew or should have known that his disability was Acaused or contributed to by [asbestos] exposure within the meaning of subdivision (a)(2) of section 340.2. Byits terms, therefore, section 340.2 would have required Darden to file the action he litigated against General Motors within one year after the latter date, i.e., by1987. Accordingly, the Court of Appeal held Athe 1991 action was untimely on this ground. (40 Cal.App.4th at p. 352.) Assuming the Court of Appeal was correct in concluding that the jury erred in finding Darden was not disabled in 1982 within the meaning of section340.2,
FN11 we agree that the court could have rested its holding and judgment on the foregoing ground. Instead, the court attempted to state analternate ground in the published portion of its opinion. But that attempt failed: the court’ s second ground, which the Court of Appeal relied on heavily in the case atbar, was premised on a confusion of unrelated doctrines and cannot be maintained. The court based its second ground on the fact that Darden had filed two successive actions for injuries arising from the same asbestos exposure: Darden I in 1987and Darden II in 1991. The court apparently recognized that both actions were timely within the plain meaning of section 340.2, but it was unwilling to accept thatresult. Instead, it held Darden II untimely under a new rule it created for the purpose, i.e., when a plaintiff files two successive actions for asbestos-related injuriesagainst the same defendant, the one-year statutory period for filing the second action under section 340.2 begins on the date the first action is filed. (Darden, supra,40 Cal.App.4th at p. 356.) Section 340.2, of course, contains no such provision. The Darden court offered two justifications for declining to give effect to the plain wording of the statute, butneither is persuasive. As one purported justification, the court reasoned that ASection 340.2 postpones accrual of the cause of action for injury from exposure to asbestos. . . . By filingDarden I in 1987 plaintiff voluntarily commenced an action within the meaning of [Code of Civil Procedure] section 350 and therewith admitted that his cause ofaction had accrued. Plaintiff in effect invoked the bar of section 340.2 and cannot later revoke it . . . . (Darden, supra, 40 Cal.App.4th at p. 356.) The quoted reasoning, however, mistakenly equated the accrual of a cause of action for asbestos-related injury with the beginning of the limitations periodprescribed by section 340.2. A cause of action accrues Aupon the occurrence of the last element essential to the cause of action; that is when the plaintiff is firstentitled to sue. (Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 531, fn. 4, italics deleted.) Under this rule, a cause of action for a latentinjury or disease generally accrues, in the sense that it is ripe for suit, when the plaintiff discovers or should reasonably have discovered he has suffered acompensable injury. (Id. at p. 530.) Before the enactment of section 340.2, that accrual date was also the date of the beginning of the limitations period in cases inwhich the latent injury or disease arose from exposure to asbestos. (Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 887-888[abestosis].) But section 340.2 changed that rule, declaring a separate and distinct date for the beginning of the limitations period in asbestos cases, i.e., the date ofdisability as specially defined in the statute. The result, since the enactment of section 340.2, is that although the filing of an action for asbestos-related injury may besaidCin Darden’ s wordsCto be an Aadmission that the cause of action has accrued in the ripeness sense, it is not an admission that the limitations period of section340.2 has simultaneously begun. To hold otherwise is to rewrite the statute. The Darden court’ s other justification for declining to give effect to the plain wording of section 340.2 is more difficult to grasp. The court asserted that to allowAmultiple suits against the same defendant . . . would offend the purposes of statutes of limitations, and concluded that there is no legislative intent Ato allow multiplesuits beyond the one-year limit of section 340.2. (Darden, supra, 40 Cal.App.4th at p. 356.) But as will appear in our discussion of the present Court of Appeal’ sreliance on the rule against splitting a cause of action, the rules prohibiting Amultiple suits against the same defendant have nothing to do with statutes of limitation.Legislative intent to allow or disallow Amultiple suits is not to be found in limitations provisions. The legislative intent expressed in section 340.2 is clear: drawing nodistinction between a single action for an asbestos-related disease (as in Duty) and multiple actions for the same disease (as in Darden) or for different diseases (asin the case at bar), section 340.2 declares that the limitations period for filing Aany action for asbestos-related disease begins on the date of the plaintiff’ s disabilityas specially defined in the statute. If the statute as written is deemed inadequate to deal with cases of multiple actions, it is for the Legislature, not the appellate courts,to rewrite it. In addition to relying on the reasoning of Darden, supra, 40 Cal.App.4th 349, the Court of Appeal in the case at bar invoked the primary right theory and itscorollary, the rule against splitting a cause of action. As we explained in Crowley v. Katleman (1994) 8 Cal.4th 666, 681 (Crowley), AThe primary right theory isa theory of code pleading that has long been followed in California. It provides that a ‘ cause of action’ is comprised of a ‘ primary right’ of the plaintiff, acorresponding ‘ primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of aprimary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.] A pleading that states the violation of oneprimary right in two causes of action contravenes the rule against ‘ splitting’ a cause of action. We further explained (ibid.), AAs far as its content is concerned, theprimary right is simply the plaintiff’ s right to be free from the particular injury suffered. Although the opinion of the Court of Appeal in the case at bar is silent on the point, the court appears to have assumed that Mitchell had only a single cause ofaction for both his asbestosis and his mesothelioma. Having assumed its premise, the court proceeded directly to inquire whether the case fell within an exception tothe rule, and found none. Thus the court stated that the rule bars splitting a single cause of action Aexcept where exceptional circumstances might justify a departurefrom the rule to avoid harsh results [citation]. The court recognized that to apply Aan ordinary statute of limitations, even when ameliorated by the discovery rule,could indeed lead to harsh results in cases of asbestos-related diseases. But the court asserted that in California such potential harshness Ahas been all but eliminatedthrough the enactment of section 340.2, because the statute allows asbestos plaintiffs to Aescape all time constraints until they reach the point of disability. For thisreason the court concluded that there were Ano exceptional circumstances to justify a departure from the rule against splitting a cause of action. We need not reach the question whether Mitchell had a separate primary right to be free from each of the two diseases resulting from his asbestos exposure. Even ifwe were to assume for purposes of argument that the filing of Mitchell II violated the rule against splitting a cause of action, it would not follow that the Court ofAppeal correctly concluded that Mitchell II was time-barred. The court appears to have confused the rule against splitting a cause of action with the statute oflimitations. The rule against splitting a cause of action is neither an aspect of, nor a restatement of, the statute of limitations; rather, it is in part a rule of abatementand in part a rule of res judicata. As we further explained in Crowley, supra, 8 Cal.4th at page 682, AThe primary right theory has a fairly narrow field ofapplication. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of twomeans: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement (Code Civ. Proc., ‘ 430.10,subd. (c) [AThere is another action pending between the same parties on the same cause of action.]; . . .); or (2) if the first suit has terminated in a judgment on themerits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata (Panos v. Great WesternPacking Co. (1943) 21 Cal.2d 636, 638-640 [134 P.2d 242]). (Italics added.) Neither of these applications of the rule against splitting a cause of action dependson whether the second action was brought within the period allowed by the statute of limitations. Conversely, application of the statute of limitations does not dependon whether a prior action was brought, or on how it was resolved. In the case at bar Asbestos Corporation did not plead the pendency of Mitchell I in abatement ofMitchell II. Accordingly, even if we were to assume the latter filing violated the rule against splitting a cause of action, Asbestos Corporation would be deemed tohave waived the defense. (Ferraro v. Southern Cal. Gas Co. (1980) 102 Cal.App.3d 33, 43-44; Rest.2d Judgments, ‘ 26, subd. (1)(a).) We conclude that the Court of Appeal erred in holding that Mitchell II was time-barred by section 340.2. To the extent they are inconsistent with our analysis, wedisapprove Darden v. General Motors Corp., supra, 40 Cal.App.4th 342, and its progeny, Barr v. ACandS, Inc. (1997) 57 Cal.App.4th 1038. II The second issue presented in the petition for review is whether the Court of Appeal was correct in holding that the trial court lacked personal jurisdiction overAsbestos Corporation in Mitchell I because it had not been served in that action. We conclude the trial court did not lack jurisdiction. “A general appearance by a party is equivalent to personal service of summons on such party.” (Code Civ. Proc., ‘ 410.50, subd. (a).) The statutory list of actsconstituting an appearance (id., ‘ 1014 [filing an answer, demurrer, motion to strike, etc.]) is not exclusive; Arather the term may apply to various acts which, underall of the circumstances, are deemed to confer jurisdiction of the person. [Citation.] What is determinative is whether defendant takes a part in the particular actionwhich in some manner recognizes the authority of the court to proceed. (Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1397 (Sanchez).) The issue is thus fact-specific, and in the case at bar two paramount facts appear: the trial court ordered Mitchell’ s two actions to be consolidated for all purposes,and Asbestos Corporation fully participated without objection in the consolidated action. It thereby made a general appearance. Code of Civil Procedure section 1048, subdivision (a), authorizes the trial court, when appropriate, to Aorder a joint hearing or trial or to Aorder all the actionsconsolidated. Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remainotherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one casenumber and result in only one verdict or set of findings and one judgment. (Sanchez, supra, 203 Cal.App.3d at p. 1396; 4 Witkin, Cal. Procedure (4th ed. 1997)Pleading, ‘ ‘ 310-311, pp. 404-406.) Here the Court of Appeal read the record to mean that Mitchell’ s two actions were consolidated for trial only, and found nothing beyond Asbestos Corporation’ sAbare participation in the consolidated trial to suggest that it recognized the authority of the court with regard to Mitchell I. We read the record otherwise. As noted above, on the day after Asbestos Corporation filed its answer in Mitchell II, Mitchell moved to consolidate Mitchell I (No. 955576) with MitchellII (No. 975884). The Court of Appeal gave great weight to the fact that in his points and authorities Mitchell had argued that the trial court had the power toconsolidate the cases for trial and had cited only decisions justifying such consolidation. But Mitchell may not have clearly understood the distinction between the twotypes of consolidation, and in any event his motion was not so limited: Mitchell moved for Aan order consolidating Action No. 955576 with Action No. 975884,nowhere stating that the order should be limited to consolidation for trial.
FN12 More important, the court’ s order granting the motion was not limited to a consolidation for trial: rather the court declared that AIT IS ORDERED that Action[s]Nos. 955576 and 975884 are consolidated as Action No. 955576. (Italics added.) In addition, Mitchell had simultaneously moved for trial-setting preferencebecause of his terminal illness (Code Civ. Proc., ‘ 36, subd. (d)), and the trial court awarded that relief in the same order as the order of consolidation, declaring thatAIT IS FURTHER ORDERED that the consolidated Action No. 955576 is granted such preference. (Italics added.) This is the language of completeconsolidation. As would be expected after a consolidation for all purposes, all further filings by Mitchell bore only the Mitchell I title and the single case number 955576. Whenthe case was called for trial, the clerk announced it as a consolidated action under the same single case number. Throughout trial, the clerk’ s minutes designated theproceeding by its Mitchell I title and case number, adding for identification only, Aconsol. w/ 975884. Finally, there was only one verdict and one judgment, andeach was numbered in the same way as the clerk’ s minutes. Any possible ambiguity remaining after the foregoing consistently titled and numbered filings was removed by the trial court itself at the hearing on defense motionsfor judgment notwithstanding the verdict and for new trial. As part of its ruling denying those motions, the court declared: AA motion to consolidate the two casesfor all purposes and advance the consolidated action for trial was made. [Asbestos Corporation] was served with that motion but did not oppose it. The motionwas granted and the two cases were consolidated for all purposes and an early trial date was ordered. (Italics added.) Consolidation under Code of CivilProcedure section 1048 is permissive, and it is for the trial court to determine whether the consolidation is for all purposes or for trial only. (See Committee forResponsible Planning v. City of Indian Wells (1990) 225 Cal.App.3d 191, 196, fn. 5.) Asbestos Corporation, moreover, fully participated in this consolidated action from beginning to end. First, as the trial court noted, Mitchell served his motion toconsolidate on Asbestos Corporation, but Asbestos Corporation made no objection to it. At the start of trial Mitchell inquired if Asbestos Corporation objected tohis proving the latter’ s liability for both his asbestosis and mesothelioma, and counsel for Asbestos Corporation replied, AI don’ t think I can object as to how youwant to proceed. I can only prove that you didn’ t prove it. Counsel for Asbestos Corporation subsequently signed and filed an affidavit (concerning a notice ofdeposition) bearing only the title and case number of Mitchell I, and later signed a stipulation (concerning trial exhibits) that also bore only the title and case numberof Mitchell I. As noted above, Asbestos Corporation was the sole defendant at trial and actively defended itself on the merits of all the claims litigated byMitchellCclaims arising from both asbestosis and mesothelioma. Lastly, at no time throughout the proceedings did Asbestos Corporation object to the trial court’ sjurisdiction on the ground it had not been served in Mitchell I.
FN13 We conclude the record supports the trial court’ s determination that Mitchell I and Mitchell II were consolidated for all purposes as Mitchell I, action No.955576, and that Asbestos Corporation made a general appearance in that action. The Court of Appeal erred in holding to the contrary. III In its opening brief in the Court of Appeal Asbestos Corporation raised four additional issues that the Court of Appeal did not reach because of its holdingsdiscussed herein.
FN14 It is appropriate to remand for the Court of Appeal to resolve those issues in the first instance. The judgment of the Court of Appeal is reversed with directions to resolve the remaining issues raised in the appellant’ s opening brief in that court. CONCURRING OPINION BY BROWN, J. I concur with the majority’ s ultimate disposition and reluctantly agree with its interpretation of Code of Civil Procedure section 340.2.
FN15 I, however,write separately because I see no need to disapprove of Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349 (Darden), and its progeny, Barr v.ACandS, Inc. (1997) 57 Cal.App.4th 1038 (Barr). First, Darden and Barr are distinguishable. In Darden, the plaintiff filed a second lawsuit with the same defendant and virtually the same allegations as the firstlawsuit he filed almost four years earlier. Consequently, the Court of Appeal held that plaintiff’ s second action was time-barred because the filing of the first actiontriggered the running of the one-year statute of limitations period. (Darden, supra, 40 Cal.App.4th at p. 356.) Likewise, the Court of Appeal in Barr found thecauses of action in plaintiffs’ second lawsuit time-barred because plaintiffs had asserted the same causes of action in their initial lawsuits filed several years earlier.(See Barr, supra, 57 Cal.App.4th at pp. 1053-1056.) Unlike the plaintiffs in Darden and Barr, the plaintiff in this case did not allege the same causes of action in his two lawsuits. Plaintiff’ s first action sought recoveryfor asbestosis. In contrast, his second action sought recovery for mesothelioma, a different and unrelated disease caused by asbestos exposure. Thus, the causes ofaction in the second complaint were separate and distinct from those in the first complaint, and the filing of the first action did not trigger the one-year statute oflimitations for the causes of action in the second action.
FN16 As such, plaintiff’ s second lawsuit would not be time-barred under Darden and Barr. Second, I believe Darden properly harmonizes sections 312, 340.2 and 350. Section 350 states that the filing of a complaint commences a civil action. Section 312then explains that a plaintiff can only commence a civil action Awithin the periods prescribed in this title, after the cause of action shall have accrued (Italics added.)Viewed together, these two statutes establish that a plaintiff, by filing a complaint, admits that the causes of action asserted in that complaint have accrued and fallwithin the applicable limitation period contained in title 2 of the Code of Civil Procedure. In doing so, the plaintiff necessarily admits that the limitation period hasstarted running. Otherwise, the asserted causes of action could not fall within that limitation period. These admissions, however, arguably conflict with section 340.2, which states that the statute of limitations for asbestos-related illnesses begins to run when theplaintiff suffers a Adisability. Because we must harmonize potentially conflicting statutes whenever possible (Broughton v. Cigna Healthplans (1999) 21 Cal.4th1066, 1086), we should, consistent with Darden, conclude that the one-year limitation period for asbestos-related causes of action is triggered when a plaintiff either(a) suffers a disability as defined in section 340.2 or (b) files a complaint asserting those causes of action. (See Darden, supra, 40 Cal.App.4th at p. 356.) Such a conclusion comports with the legislative intent behind section 340.2. In enacting section 340.2, the Legislature intended to extend the limitation period forasbestos-related illnesses because these illnesses often develop slowly and become symptomatic long before they become disabling. (See Blakey v. SuperiorCourt (1984) 153 Cal.App.3d 101, 105-106.) The Legislature also wished to encourage individuals afflicted with asbestos-related illnesses to work as long aspossible without jeopardizing their right to recovery. (See Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727, 735 (Nelson).) Making the filing of the complaint analternative trigger for the one-year limitation period detracts from neither purpose. Individuals suffering from asbestos-related illnesses are only barred from filingserial lawsuits. They still benefit from the delayed accrual date established by section 340.2 and may work as long as they can without jeopardizing their right torecovery. Because the LegislatureCwhich clearly intended to place some limits on asbestos-related lawsuitsCsurely did not intend to give plaintiffs indefinite leave tofile multiple lawsuits, I believe Darden and Barr were correctly decided.Of course, Darden would be superfluous if the language of section 340.2 was lesscumbersome and confusing. Indeed, the awkward wording of the statute creates several anomalous results. For example, section 340.2 eliminates the statute oflimitations for plaintiffs unemployed due to non-asbestos-related reasons but maintains a one-year limitation period for plaintiffs unemployed due to anasbestos-related disability. Not only does such a distinction make little sense, it undermines the very purpose behind the statute by encouraging plaintiffs to quit workbefore they become disabled so they can prolong their right to sue. (See Nelson, supra, 172 Cal.App.3d at p. 735 [the Legislature, by enacting ' 340.2, intended toencourage workers with asbestos-related conditions to work as long as possible].) Moreover, section 340.2, by its terms, bars plaintiffs diagnosed withasbestos-related cancer over one year after becoming disabled due to asbestos exposure from asserting cancer claims. Such a result contravenes the main purposebehind section 340.2Cto ameliorate the harsh application of the previous statute of limitations. (See Duty v. Abex (1989) 214 Cal.App.3d 742, 747-748.) In lightof these bizarre and, I suspect, unintended results, I urge the Legislature to revisit and revise section 340.2. :::FOOTNOTES:::
FN1 The complaint also alleged that Mitchell suffered Aincreased risk and fear of developing mesothelioma and other cancers. After Mitchell I was filed, however,we adopted the general rule that damages for fear of cancer may be recovered only if it was more likely than not that the cancer would occur. (Potter v. FirestoneTire & Rubber Co. (1993) 6 Cal.4th 965, 997.) As will appear in our discussion of the medical testimony in this case, mesothelioma may be triggered by asbestosexposure but its incidence is extremely low.
FN2 Mitchell’ s trial theory was that Asbestos Corporation supplied asbestos fibers to a company that made an insulating cement used by one of Mitchell’ s formeremployers.
FN3 One micron is one-thousandth of a millimeter.
FN4 In asbestosis, the scarring occurs on the middle and lower portions of the lung; scarring in the lining of the lung on both sides is pleural plaque; scarringthroughout the lining of the lung is diffuse pleural fibrosis; and scarring that has been present long enough to calcify is pleural calcification. Mitchell suffered fromeach of these conditions.
FN5 For a more detailed explanation of the scarring process, see Armstrong World Industries v. Aetna Casualty & Surety Co. (1996) 45 Cal.App.4th 1, 37-39(Armstrong).
FN6 Where the mesothelium constitutes the sac that surrounds the heart, it is called the pericardium. Pericardial mesothelioma is by far the least common form.
FN7 In a legally different but factually similar case, the Court of Appeal upheld an award of death benefits based on uncontradicted medical testimony thatperitoneal mesothelioma does not develop from asbestosis but rather is Aan entirely separate and distinct disease process resulting in an entirely separate and distinctinjury and disability. (Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1990) 219 Cal.App.3d 1265, 1273.)
FN8 The Court of Appeal ordered Mitchell’ s adult daughters, Linda Hamilton and Janet Iorio, to be substituted as his successors in interest. (Code Civ. Proc., ’377.32.)
FN9 A similar statute is in fact phrased in the conjunctive: Labor Code section 5412 provides, AThe date of injury in cases of occupational diseases . . . is that dateupon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability wascaused by his present or prior employment. (Italics added.)
FN10 The court invited the Legislature to revisit section 340.2 if it disagreed with the court’ s construction of the statute: AIt is not for us to determine whether theLegislature acted wisely in defining so narrowly the term ‘ disability.’ We reiterate our observation in Blakey v. Superior Court, supra, 153 Cal.App.3d 101, thatalthough the effects of this statute ‘ may seem somewhat anomalous,’ that is the scheme the Legislature had enacted. Until and unless the Legislature sees fit to amendthe statute, ‘ it is the function of this court to apply the statute as written.’ [Citation.] (214 Cal.App.3d at p. 753.) In the 11 years since the court issued that invitation, other courts have construed the statute in the same way but the Legislature has not seen fit to amend it.
FN11 The court did not publish the portion of its opinion justifying its conclusion on this issue.
FN12 It is true that the motion also recited that the actions Ainvolve common questions of law and fact and consolidation Awill avoid unnecessary costs and delay,but these grounds will support a consolidation of either type.
FN13 Indeed, Asbestos Corporation did not even raise this issue in its appeal from the judgmentCthe Court of Appeal raised it on its own motion. When Mitchellobjected, in a petition for rehearing, that the Court of Appeal had thereby violated Government Code section 68081, the court ordered a rehearing. Ninety dayslater, without supplemental briefing or argument, the Court of Appeal filed the opinion now under review, reiterating its reasoning and holding on the issue.
FN14 Asbestos Corporation contended that (1) a supplier of raw asbestos for use in manufacturing by others should not be subject to strict liability to the consumerof the finished product; (2) Mitchell’ s evidence of causationCi.e., that he was exposed to asbestos supplied by Asbestos CorporationCwas speculative andinsufficient as a matter of law; (3) certain deposition testimony on the preceding issue of causation was inadmissible hearsay; and (4) the trial court erred in rulingProposition 51 inapplicable in the circumstances of this case.
FN15 All further statutory references are to the Code of Civil Procedure.
FN16 Most other jurisdictions have reached the same conclusion. (See, e.g., Wilson v. Johns-Manville Sales Corp. (D.C. Cir. 1982) 684 F.2d 111, 120-121[diagnosis of asbestosis does not trigger the statute of limitations for cancer caused by the same exposure]; Eagle-Picher Industries, Inc. v. Cox (Fla.Dist.Ct.App.1985) 481 So.2d 517, 520 [same]; VaSalle v. Celotex Corp. (Ill.App.Ct. 1987) 515 N.E.2d 684, 687 [same]; Smith v. Bethlehem Steel Corp.(Md.Ct.Spec.App. 1985) 492 A.2d 1286, 1296 [same]; Larson v. Johns-Manville Sales Corp. (Mich. 1986) 399 N.W.2d 1, 9 [same]; Fusaro v.Porter-Hayden Co. (1989) 548 N.Y.S.2d 856, 860 [145 Misc.2d 911, 918] [same]; Marinari v. Asbestos Corp. (Pa.Super.Ct. 1992) 612 A.2d 1021, 1028[same]; Potts v. Celotex Corp. (Tenn. 1990) 796 S.W.2d 678, 685 [same]; Sopha v. Owens-Corning Fiberglas Corp. (Wis. 1999) 601 N.W.2d 627, 636[same]; but see Pustejovsky v. Pittsburgh Corning Corp. (Tex.App. 1998) 980 S.W.2d 828, 831-833 [barring cancer claim because diagnosis of asbestosistriggered the running of the limitation period] [review granted on Feb. 25, 1999]; Joyce v. A.C. AND S., Inc. (4th Cir. 1986) 785 F.2d 1200, 1205 [barringasbestosis claim because diagnosis of pleural thickening triggered the running of the limitation period].)
Hamilton v. Asbestos Corp., Ltd. Supreme Court of California LINDA HAMILTON, as Successor in Interest, etc., et al., Plaintiffs and Respondents, v. ASBESTOS CORPORATION, LTD., City and County of San Francisco Defendant and Appellant. No. S069596 Before: MOSK, GEORGE, KENNARD, BAXTER, WERDEGAR, and CHIN Counsel for Defendant and Appellant: James C. Parker, Gary T. Drummond, , James N. Sinunu, Barbara R. Adams, Paul R. H. Walker, Roy G. Weatherup, William J. Sayers, and Caroline E. Chan Counsel for Plaintiffs and Respondents: Brayton Harley Curtis, James L. Oberman, Gilbert Purcell, James Geagan, Joanne E.K. Larson, Philip A. Harley, David A. Rosen, Gideon Kracov, Ian Herzog, Leonard Sacks, Bruce Broillet, Thomas Stolpman, Robert Steinberg, Roland Wrinkle, Gary Paul, Steven Kleifeld, Harvey Levine, James Sturdevant, Wayne McClean, William Turley, Christine Spagnoli, and LeeAnn Tratten, Bruce A. Wagman, Harry F. Wartnick, Smith, Daniel U. Smith, and Ted W. Pelletier Filed: May 15, 2000
