Opinion
B157700
7-31-2003
BOBBIE S. JONES et al., Plaintiffs and Appellants, v. SIG ARMS SAUER GmbH et al., Defendants and Respondents.
Robert D. Rapp and Jerome M. Jackson for Plaintiffs and Appellants. Wilson, Elser, Moskowitz, Edelman & Dicker, Jack A. Janov and Karen L. Ho for Defendants and Respondents.
Appellants brought this wrongful death and survivorship action more than a year after decedent was killed by a handgun allegedly manufactured and distributed by respondents. The handgun was made without a safety barrier between the hammer and cartridge to prevent accidental discharge; the gun allegedly accidentally discharged on March 3, 1997, causing decedents death.
Appellants are the Texas mother and Louisiana siblings and grandparents of decedent as well as the Estate of Hondo L. Jones, decedent. Decedent had been a resident of Louisiana. Respondents in the case at bench are Sig Arms Sauer, GMbH (a German corporation, "Sauer") and Sig Arms Inc. (a Delaware corporation based in New Hampshire, "SAI"), collectively "respondents" or "SigArms." This lawsuit alleges that the handgun was manufactured by Sauer and distributed by SAI, which is also allegedly the alter ego and successor of the manufacturer.
Appellants appeal from the summary judgment granted for respondents based on the bar of Californias one-year statute of limitations. Specifically, appellants contend that by filing their lawsuit in Texas within a year of death and this California lawsuit within 60 days of dismissal of the Texas lawsuit, the California suit was timely under both the applicable Texas statute and the California doctrine of equitable tolling. Respondents argue that the trial courts order was proper on the ground that the lawsuit was filed over one year after death and is barred by the California statute of limitations in that plaintiffs failed to raise a triable issue of material fact that the statute of limitations had expired, that Texas Civil Practice and Remedies Code section 16.064 was inapplicable, or that "equitable tolling" was improper. We shall affirm the summary judgment as to SAI, which received a ruling on the merits in Texas, and reverse as to Sauer.
Texas Civil Practice and Remedies Code section 16.604 provides:
"(a) The period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if:
"(1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and
"(2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction.
"(b) This section does not apply if the adverse party has shown in abatement that the first filing was made with intentional disregard of proper jurisdiction."
PROCEDURAL HISTORY
Decedents mother, a resident of Texas, and other beneficiaries filed a lawsuit in Texas on March 2, 1998, within a year of the incident. On the same day, they filed a protective lawsuit in New Orleans, Louisiana, where the incident occurred. Sauer and SIG Industrial Company Holding Ltd. were dismissed from the Texas action for lack of personal jurisdiction on December 22, 1999. SAI was dismissed from the Texas lawsuit after summary judgment was granted on January 11, 2000, finding SAI did not manufacture, design, market, sell, or distribute the subject firearm.
Appellants state that Texas has a two-year statute of limitations while both California and Louisiana have one-year tort statute of limitations.
The Louisiana lawsuit (Louisiana I) was dismissed on November 28, 2000, for failure to diligently serve defendants.
That dismissal was affirmed on July 19, 2000, by the San Antonio Court of Appeals. The court listed the relationship of the parties with Texas and concluded that "the trial court was correct in concluding that the exercise of personal jurisdiction would offend traditional notions of fair play and substantial justice. We note, however, the Joness beneficiaries are not without a remedy. That remedy must simply be sought in another jurisdiction."
That dismissal was appealed.
On February 22, 2000, nearly three years after decedents death but arguably less than 60 days after the Texas dismissal, this case was filed in Los Angeles County Superior Court. The complaint purports to allege causes of action for negligence, strict product liability, breach of express and implied warranty, and deceptive trade practices. Appellants allege that the lawsuit was filed as a result of the dismissal of their prior Texas lawsuit "on grounds of lack of personal jurisdiction as to the defendant manufacturers of the subject product," a lawsuit then on appeal in Texas. Moreover, the complaint alleged that the "continuation of this suit in this jurisdiction will be dependent on the outcome of that appeal." PAGE CONTAINED FOOTNOTES
On the same date, a second lawsuit was filed in Louisiana (Louisiana II). We take judicial notice that February 21, 2000, was observed as Presidents Day in the California courts.
The answers alleged multiple affirmative defenses, including the one-year California statute of limitations. Appellants claim that the instant California lawsuit was filed within the sixty day period prescribed under Texas saving statute (Texas Civil Practice & Remedies Code § 16.064), which tolls limitations for sixty days for jurisdictional dismissals, and/or that the one-year California statute of limitations is tolled by the doctrine of equitable tolling. As in Texas, the manufacturer claimed an absence of personal jurisdiction in California. But, we are told, the California court found jurisdiction proper.
On October 3, 2001, defendants filed a motion for summary judgment (MSJ) based on expiration of the one-year California statute of limitations (Cal. Code Civ.Proc., §§ 335, 340(3).) The separate statement of undisputed facts set forth only seven facts:
1. The subject accident occurred in Louisiana on March 3, 1997.
2. Hondo Jones firearm discharged and struck him in the head.
3. Plaintiffs allege that respondents designed, manufactured, marketed, exported/imported, distributed and sold the subject firearm.
4. As a result of the subject accident, plaintiffs filed four wrongful death lawsuits in the states of Texas, Louisiana, and California.
5. Two separate wrongful death actions were filed in Louisiana. The first action was filed on March 2, 1998 and was dismissed on November 28, 2000 for failure to serve defendants. Plaintiffs filed a separate second action in Louisiana on February 22, 2000, and this action is currently pending.
6. Plaintiffs filed a wrongful death action in Texas on March 2, 1998 which is currently pending.
7. Plaintiffs filed the instant lawsuit approximately three years after Mr. Jones died.
Plaintiffs opposition to the MSJ was filed before the end of October 2001. They agreed that facts 1, 2, 3, 6, and 7 were undisputed and objected that 5 was irrelevant and that 4 was irrelevant "as to any actions pending in Louisiana" but otherwise undisputed. Plaintiffs set forth the additional facts:
8. Plaintiffs filed their action in Texas within one year of the date of injury.
9. On December 22, 1999 the District Court of Bexar County in Texas "dismissed moving defendants from the Texas action on jurisdictional grounds."
10. Texas Civil Practice and Remedies Code section 16.064 provides that an action may be re-filed after being dismissed on jurisdictional grounds, within 60 days.
11. Plaintiffs re-filed their complaint in California "59 days after the December 22, 1999 dismissal."
Plaintiffs sole initial written argument in the trial court was that the Texas statute authorized them to re-file their lawsuit in California. They sought judicial notice of the subject Texas statute. Moreover, they attached the Texas order sustaining and granting defendants objections to jurisdiction. Appellants did not initially argue equitable tolling, nor did they inform the trial court that SAI was dismissed on the merits; that their Texas action was still pending on appeal when the California lawsuit was filed; and that their Louisiana II action was also still pending when they filed this California action.
Respondents represent that the Louisiana II case still exists and appellants have an opportunity to litigate the merits in Louisiana. During oral argument, counsel for appellants represented that appellants would not prosecute the Louisiana II litigation if the California lawsuit is allowed to proceed.
Respondents contested each of plaintiffs new facts except that plaintiffs filed their action in Texas within one year of the date of injury. Respondents provided a copy of the opinion of the San Antonio Court of Appeal as well as a copy of the January 11, 2000, District Court of Bexar County, Texas order granting defendant SAIs motion for summary judgment. Respondents specifically countered plaintiffs assertion that both defendants had been dismissed on jurisdictional grounds in Texas, alleging that Sauers dismissal on jurisdictional grounds had been affirmed by the San Antonio Court of Appeals, SAI had not been dismissed on jurisdictional grounds, and SAIs summary judgment on the merits was then on appeal. Respondents reply was based on the inapplicability of the Texas statute to California state courts in general and the inapplicability of the terms of the statute to the undisputed facts in the case at bench.
The trial court issued a tentative ruling granting summary judgment based on the bar of the California one-year statute of limitations and the inapplicability of the Texas statute. The courts tentative ruling set forth the date of death as March 3, 1997, and the filing of the California action as May 15, 2000, (sic - it was filed February 22, 2000) and, explaining the MSJ was based on the lawsuit being barred by the one-year statute of limitations in Code of Civil Procedure section 340(3), stated:
"Plaintiffs do not dispute that they filed this action almost three years after decedents death. Nonetheless, plaintiffs contend that this action is timely based on the following: (1) plaintiff filed a complaint in the District Court of Texas on 3/2/98, which is within one year of decedents death; (2) on 12/22/99, the Texas court dismissed moving defendants from the action for lack of personal jurisdiction; (3) Texas Civil Practice and Remedies Code § 16.064 provides that a party whose action has been dismissed on jurisdictional grounds has 60 days thereafter to re-file the action in the proper jurisdiction; and (4) plaintiffs filed this action within 59 days of moving defendants dismissal from the Texas action. . . .
"However, as defendants contend, plaintiffs fail to provide any authority that says that the Texas Civil Practice and Remedies Code § 16.064 is applicable here. In all of the cases cited in the annotations to § 16.604, the re-filing was either from federal to state or state to federal court, but not between state courts as plaintiffs contends. See Winston v. American Med. Int1, Inc. (1996) 930 S.W.2d 945, 955; Turner v. Dept. of MHMR (1996) 920 S.W.2d 415, 419; Fontenot vs. NL Indus., Inc. (1993) 877 W.W.2d 339, 340; Gutierrez v. Lee (1991) 812 S.W.2d 388, 392; Vale v. Ryan (1991) 809 S.W.2d 324, 327.
"In any event, defendants also contend that Texas Civil Practice and Remedies Code § 16.604 is inapplicable as the dismissals of defendants from the Texas action were not final at the time plaintiffs filed this action in California Superior Court. Defendants proffer evidence that the San Antonio Court of Appeals affirmed the district courts order of dismissal on 7/19/00. . . . However, plaintiffs filed this action on 5/5/00 (sic ). Thus, as Texas Civil Practice and Remedies Code § 16.604 requires re-filing in the proper jurisdiction not later than the 60th day after the date the dismissal or other disposition becomes final, plaintiffs[] could not even avail itself of the tolling provision of § 16.604, assuming that it operates to toll Californias statute of limitations." (Italics in original.)
At the November 16, 2001, hearing on the MSJ, appellants counsel conceded to summary judgment for SAI based on the inapplicability of the Texas statute, which applies only to "dismissals for lack of jurisdiction" and not to dismissal on the merits, which applied to SAI.
The trial court ruled that the tentative as to Sig Arms, Inc. stood and allowed the supplemental briefing only as to the remaining defendant. We note that appellants did not designate the reporters transcript that reveals the concession and ruling as to SAI. Respondents were forced to designate part of the reporters transcript in order to provide that information to this court. Aside from the disingenuousness of this practice by appellants, they are bound by the concession in the trial court and the issue of the applicability of the Texas statute to SAI is waived on appeal. (Telles Transport, Inc. v. Workers Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167.)
Over respondents objection, appellants at the hearing on the MSJ on November 16, 2001, for the first time raised their "equitable tolling" argument, on which they base much of their appeal. Out of an "abundance of caution," the trial court allowed supplemental briefing on the issue of equitable tolling or "any other method of getting around the statute of limitations here." Supplemental briefing was submitted in which appellants argued that the wrongful death action against the sole remaining defendant, Sauer, was "saved" by equitable tolling. Respondent Sauer replied that "equitable tolling" was inapplicable because appellants failed to act reasonably and in good faith under the requisite criteria in relevant California cases.
In a minute order dated December 14, 2001, the trial court ruled that its tentative ruling stood and granted the MSJ. The courts ruling stated: "The Court in addition to its Tentative Ruling will incorporate by this reference in this ruling the papers and points and authorities cited by the Defendants that are consistent with this ruling. The Court finds that the doctrine of equitable tolling is not applicable to this case due to the factually distinguishable aspects of this case and the bad faith factions of the plaintiff in filing identical law suits in multiple jurisdictions as indicated in the defense papers." (Italics added.)
The summary judgment entered May 20, 2003, upheld the tentative ruling and stated that "the court found that the doctrine of equitable tolling is not applicable to this case."
A subsequent motion for reconsideration and for Texas attorney Robert D. Rapp to appear in pro hac vice was denied. Attorney Rapp set forth in a declaration his chronology of the litigation and his reasons for filing in Louisiana, Texas, and California. Attached to the motion for reconsideration was an affidavit of Wulf Kraft, president of SIG Arms SAUER GMBH, filed in the Bexar Texas litigation, in which he declared in September 1998 that in "1967 SIG/SAUER manufactured the firearm which is the subject of this suit. That same year, the subject firearm was sold and shipped to an entity located in Los Angeles, California." Expanding the limited declaration, Rapp characterized this declaration as the reason for filing in California: "As part of their personal jurisdiction challenge in Texas, SIG attached an affidavit that stated the gun they manufactured that killed this boy was sold by their exclusive importer/distributor located in Los Angles, California. . . . " On January 29, 2002, a notice of ruling was filed stating the court denied the motion to appear as counsel pro hac vice, the motion for reconsideration, and respondents request for sanctions. In addition "The tentative ruling [which was attached to the notice of ruling] stands."
This appeal follows.
CONTENTIONS ON APPEAL
Appellants contend: 1. The order granting defendants motion for summary judgment is erroneous and fundamentally flawed as it fails to follow established and controlling precedent, misapplies relevant law, reaches conclusions lacking support in the evidence, and accordingly must be reversed. 2. The trial court erred by failing to give full faith and credit and respect the principle of judicial comity in its refusal to apply Texas jurisdictional saving statute, section 16.064, Texas Civil Practice & Remedies Code, which provision tolled limitations for sixty days during the time plaintiffs cause was dismissed for lack of personal jurisdiction and when it was re-filed in California where personal jurisdiction was found to exist. 3. The trial courts disposition of the case was erroneous, since suit was tolled under California tolling law principles, including established California precedent presenting the very same factual scenario as the case sub judice. Hence whether applying Texas or California law the same result obtains and the summary judgment should be reversed. 4. The summary judgment cannot stand, as it turns on a finding of "bad faith," which the courts of California and federal courts applying California law have repeatedly held is a fact issue that cannot be determined by summary judgment. Moreover, there was neither evidence in the record nor even a reasonable inference that could be drawn from the facts that would support the trial courts finding of bad faith on which the summary judgment was predicated.
Respondents request affirmance and costs on appeal.
DISCUSSION
1. An order granting summary judgment is not an appealable order. We treat the appeal as from the recent subsequently entered
judgment.
Appellants state their appeal is from the "summary judgment." The initial record on appeal did not contain a summary judgment. Rather, the record contains a minute order stating: "The tentative ruling stands the motion for summary judgment is granted. Defendants are order (sic) to file and serve a proposed order in conformity with the Courts ruling by January 3, 2002." Appellants by letter dated May 13, 2002, provided an order granting summary judgment to this court. An order granting summary judgment is not an appealable order. (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1816 [dismissing appeal from nonappealable order granting a motion for summary judgment]; La Plante v. Wellcraft Marine Corp. (2001) 94 Cal.App.4th 282, 287 [construing notice of appeal to have been from the subsequently entered judgment].)
Pursuant to this courts request to the parties, respondent has provided the summary judgment, dated May 20, 2003. We therefore construe the appeal as from the subsequently entered judgment. (La Plante v. Wellcraft Marine Corp., supra, 94 Cal.App.4th 282, 287.)
2. Standard of review.
As stated in Giardino v. Brown (2002) 98 Cal.App.4th 820, 829-830, footnote omitted, quoting from Arnold v. Dow Chemical Co. (2001) 91 Cal.App.4th 698, 707,
"`Summary judgment is granted if all the submitted papers show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established or that an affirmative defense to that cause of action exists. (Code Civ. Proc., § 437c, subd. (n); see Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724 .) Once the defendants burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. (Code Civ. Proc., § 437c, subd. (o).) The plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Ibid.)
"In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. [Citation.] We must determine whether the facts, as shown by the parties, give rise to a triable issue of material fact. [Citation.] In making this determination, the moving partys affidavits are strictly construed while those of the opposing party are liberally construed."
Moreover, "How the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. . . . If a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not-otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact. By contrast, if a defendant moves for summary judgment against such a plaintiff, he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not-otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 851 [], italics and fn. omitted.)" (Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803.)
Respondent asks us to apply an "abuse of discretion" standard of review to any part of the summary judgment determination where there is an "equitable determination" in the trial court, even on summary judgment. (See, e.g., Centennial Ins. Co. v. United States Fire Ins. Co. (2001) 88 Cal.App.4th 105, 111, where the court explained that de novo review is the norm for review of summary judgment but "in the limited and exceptional circumstances where a trial court is required to exercise its discretion in passing on a Code of Civil Procedure section 437c motion for summary judgment, and grants or denies such a motion on the basis of its equitable determination of a question as to which the exercise of judicial discretion is proper, the standard of review on appeal necessarily is whether the trial courts decision amounted to an abuse of discretion. [Citations.]" Accord Dieden v. Schmidt (2002) 104 Cal.App.4th 645, 654 [assuming the doctrine of equitable subrogation even applies, the trial court should be given the opportunity to balance the equities and exercise its discretion]; Prata v. Superior Court (2001) 91 Cal.App.4th 1128, 1135 [applying abuse of discretion standard to trial courts ruling this was not a proper representative Unfair Competition Law action, and finding an abuse of discretion]; see also Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal. App. 3d 205, 212, 285 Cal. Rptr. 717, fn. [listing limited circumstances in which abuse of discretion standard applies to review of summary judgments].)
The court in Centennial Ins. Co. v. United States Fire Ins. Co., supra, 88 Cal.App.4th 105, 111, concluded that in "choosing the appropriate method of allocating defense costs among multiple liability insurance carriers, each insuring the same insured, a trial court must determine which method of allocation will most equitably distribute the obligation among the insurers pro rata in proportion to their respective coverage of the risk, as a matter of distributive justice and equity [citation]" and "as such, the trial courts determination of which method of allocation will produce the most equitable results is necessarily a matter of its equitable judicial discretion. [Citations.]" The "time on the risk" method chosen by the trial court was held not an abuse of discretion. (Id . at p. 115.)
In addition, although prior law mandated that the appellate court affirm summary judgment if correct for any legal reason, "including but not limited to the theory adopted by the trial court," (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481), Code of Civil Procedure section 437c, subdivision (m)(2), now provides that before the reviewing court may affirm on a ground not relied upon by the trial court, we shall afford an opportunity for the parties to submit supplemental briefing.
3. The trial court erred in granting summary judgment as to Sauer but not as to SAI.
It is undisputed that appellants filed their lawsuit in Texas within the one-year California statute of limitations but filed their lawsuit in California outside Californias one-year statute. Appellants argue that the California lawsuit is not barred by the statute of limitations both under the doctrine of equitable tolling and by the terms of the Texas tolling statute.
a. Californias doctrine of equitable tolling
The equitable tolling doctrine PAGE CONTAINED FOOTNOTES "provides that "the running of the limitations period is tolled when an injured person has several legal remedies and, reasonably and in good faith, pursues one. [Citations.]" (Addison v. State of California (1978) 21 Cal.3d 313, 318, 146 Cal. Rptr. 224, 578 P.2d 941; [see 3 Witkin Cal. Proc. (4th 3d. 1996) Actions, § 666 et seq., pp. 850 et seq.]) Application of equitable tolling requires timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff. (Id . at p. 319.) [P] Equitable tolling typically applies where the plaintiff pursues an alternative remedy against the defendant in the second suit. In Addison v. State of California, supra, 21 Cal.3d 313, for example, the Supreme Court held the period for filing a state court suit was tolled while the plaintiff pursued a federal court suit on the same claims against the same defendants. The court noted that, since the federal court action was timely filed, defendants were notified of the action and had the opportunity to begin gathering their evidence and preparing their defense. (Id . at p. 319.) The defendants thus were fully notified within the [limitations] period of plaintiffs claims and their intent to litigate. (Id. at p. 321.)" (Apple Valley Unified School Dist. v. Vavrinek, Trine, Day & Co. (2002) 98 Cal.App.4th 934, 953-954.)
There are substantial and valid policy reasons behind the doctrine of equitable tolling. "First, it serves the fundamental purpose of the statutes of limitations by providing timely notice of claims to defendants, without imposing the costs of forfeiture on plaintiffs. (Collier v. City of Pasadena [(1983)] 142 Cal. App. 3d [917] at p. 926; Elkins v. Derby (1974) 12 Cal.3d 410, 412, 115 Cal. Rptr. 641, 525 P.2d 81.) Second, it avoids the hardship of compelling plaintiffs to pursue several duplicative actions simultaneously on the same set of facts. (Collier v. City of Pasadena, supra, 142 Cal. App. 3d at p. 926.) Third, it lessens the costs incurred by courts and other dispute resolution tribunals, because disposition of a case filed in one forum may render proceedings in the second unnecessary or easier and less expensive to resolve. (Ibid.)" (Downs v. Department of Water & Power (1998) 58 Cal.App.4th 1093, 1100.)
The doctrine of equitable tolling has been applied to filings of actions in various forums. (See, e.g., Addison v. State of California, supra, 21 Cal.3d 313, 319 [state action against public entity and federal civil rights lawsuit]; Elkins v. Derby, supra, 12 Cal.3d 410, 412, [personal injury action and workers compensation proceedings]; Baillargeon v. Department of Water & Power (1977) 69 Cal. App. 3d 670, 683-684, 138 Cal. Rptr. 338, [supplemental disability benefits claim and workers compensation proceedings], as cited in Downs v. Department of Water & Power,supra , 58 Cal.App.4th 1093, 1100. See also Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 410-411, 154 P.2d 399 re principle of equitable tolling.)
The fact that the first case was filed in a different state, as opposed to federal court or an administrative forum within California, does not necessarily proscribe application of equitable tolling. Discussing the rules that govern application of equitable tolling, our Supreme Court in Addison v. State of California, supra, 21 Cal.3d 313, 318-319, cited Schneider v. Schimmels (1967) 256 Cal. App. 2d 366, 64 Cal. Rptr. 273, with approval for the proposition that "defendant had timely notice of similar proceedings in another state." (Italics added.)
Addison added "Cf. Wood v. Elling Corp. (1977) 20 Cal.3d 353, 361, 142 Cal. Rptr. 273, 572 P.2d 755 (specifying Bollingers prerequisites)." Wood v. Elling Corp. (1977) 20 Cal.3d 353, 362, 368, 142 Cal. Rptr. 696, 572 P.2d 755, upheld dismissal where the first action was dismissed for want of plaintiffs prosecuting the action, disapproving Schneider [applying Code Civ.Proc. § 355, allowing suit in California after Colorado Supreme Court reversed judgment favorable to plaintiffs in second Colorado suit, the first Colorado suit having been dismissed for failure to file a complaint within 10 days of serving summons and to docket the action, as required by the applicable rules of Colorado procedure] to the extent Schneider was inconsistent.
The laudatory purposes of equitable tolling, as set forth in Downs v. Department of Water & Power, supra, 58 Cal.App.4th 1093, 1100, are achieved by application of the doctrine in the case at bench. First, timely notice of plaintiffs claims was provided to defendants, without imposing the costs of forfeiture on plaintiffs. As respondents conceded at oral argument, the filing of the lawsuit in Texas put defendants on notice. Second, application of the doctrine avoids the hardship of compelling plaintiffs to pursue several duplicative actions simultaneously on the same set of facts. Plaintiffs as well as defendants did not have to make appearances and pursue litigation in California while the Texas lawsuit was proceeding. Third, it lessens the costs incurred by courts and other dispute resolution tribunals, because disposition of a case filed in one forum may render proceedings in the second unnecessary or easier and less expensive to resolve. If the lawsuit in Texas had not been dismissed, there would have been no need to proceed in the courts of California.
Even if the doctrine of equitable tolling would otherwise apply, it is applicable only "where the plaintiff has alternate remedies and has acted in good faith." (Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434.) "The underlying assumption of these cases is that when the plaintiff has several alternative remedies and makes a good faith, reasonable decision to pursue one remedy in order to eliminate the need to pursue the other, the doctrine of equitable tolling will suspend the running of the statue of limitations if it becomes necessary to pursue the alternative remedy. However, equitable tolling is not available to a plaintiff whose conduct evidences an intent to delay disposition of the case without good cause; and it is certainly not available to a plaintiff who engages in the procedural tactic of moving the case from one forum to another in the hopes of obtaining more favorable rulings." (Mitchell v. Frank R. Howard Memorial Hospital (1992) 6 Cal.App.4th 1396, 1407-1408.)
Appellants contend that the trial court erred in finding the filing of multiple lawsuits by plaintiffs amounted to bad faith. Rather, appellants state their filing of the initial lawsuit in Texas within Californias one-year limitations period "precludes any possible reasonable inference of bad faith, or for that matter dispels the notion the Plaintiffs actions were even a good faith effort to obtain some advantage." In any event, appellants argue that the question of bad faith is a question of fact inappropriate for disposition on motion for summary judgment. (See Chateau Chamberay Homeowners Assn. v. Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 335, 350 [a partys bad faith "is ordinarily a question of fact to be determined by a jury by considering the evidence of motive, intent and state of mind, the question becomes one of law . . . when, because there are no conflicting inferences, reasonable minds could not differ. [Citations.]"])
The trial courts legal determination of bad faith is supported as to SAI, which was dismissed on the merits by the Texas court. The purpose of the doctrine of equitable tolling is not to further forum shopping, but is to permit a consideration on the merits. Plaintiffs have had that consideration on the merits in Texas as to SAI. We therefore conclude the summary judgment as to SAI was appropriate.
As to Sauer, however, at least at the summary judgment stage and on the evidence presented thus far, we cannot conclude that, as a matter of law, plaintiffs have exhibited the bad faith that would preclude equitable tolling. We therefore reverse summary judgment as to Sauer.
b. Texas statute
Appellants contend that Texas Civil Practice and Remedies Code section 16.064, quoted in footnote 2, applies to toll the statute of limitations in California. Respondents contend section 16.064 applies only to cases within Texas and, even if it could be applicable, its requirements were not satisfied in the case at bench. Respondents argue that neither of the Texas dismissals were "final" when appellants filed their California action; respondent SAI was dismissed on the merits, not for lack of personal jurisdiction; and, even if the December 22, 1999 dismissal date was final, appellants did not "re-file" in California until February 22, 2000, over 60 days after the Texas dismissal.
Appellants have cited no authority that would compel or even allow this court to apply a Texas tolling provision to a lawsuit filed in California beyond the California one-year statute of limitations. We thus need not reach any of the other issues raised about whether the specific terms of section 16.064 otherwise would apply given the undisputed facts in the case at bench. However, we note that compliance with the time limits in the Texas statute may go to contradict bad faith, an element pertinent to application of the doctrine of equitable tolling.
DISPOSITION
The summary judgment is affirmed as to SAI and reversed as to Sauer. The parties are to bear their own costs on appeal.
We concur: RUBIN, J. BOLAND, J.