Av-ner v. Olympus America
Filed 5/30/06 Av-ner v. Olympus America CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
COR-REY B. AV-NER, Plaintiff and Appellant, v. OLYMPUS AMERICA, INC., et al., Defendants and Respondents. | B182308 (Los Angeles County Super. Ct. No. SC055814) |
APPEAL from an order of the Superior Court of Los Angeles County, Gerald Rosenberg, Judge. Affirmed.
Law Offices of Bradley E. Brook, Bradley E. Brook; Law Office of Daniel M. O'Leary, Daniel M. O'Leary; Law Offices of Michael D. McLachlan and Michael D. McLachlan for Plaintiff and Appellant.
Bowman and Brooke, Jeffrey A. Swedo and Stephen J. Kelley for Defendants and Respondents.
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In this medical malpractice and products liability action, filed on January 28, 1999, plaintiff Cor-rey Av-ner filed amendments over five years later, in August 2004, to name Olympus America, Inc., Olympus U.S.A., Inc., and Olympus Corporation (Olympus America Defendants) in place of Doe defendants. Av-ner served the Olympus America Defendants on September 29, 2004. The Olympus America Defendants filed a demurrer and two motions: (1) to dismiss the complaint for failing to serve them with the summons and complaint within three years (Code Civ. Proc., § 583.210, subd. (a))[1] and (2) to strike the Doe amendments as untimely and barred by the statute of limitations. We affirm the order of dismissal for failure to serve the Olympus America Defendants within three years, rejecting Av-ner's contention that it was futile or impracticable to serve them during the pendency of summary judgment motions by other defendants named in the original complaint. Because the dismissal was properly granted under section 583.210, we need not address the rulings on the demurrer and the motion to strike.
BACKGROUND
On January 28, 1999, Av-ner filed an action for damages against Dr. Lai and other defendants, alleging that in the course of a colonoscopy procedure, a contaminated colonoscope infected him with the human papillomavirus (HPV). The designer and manufacturer of the colonoscope, Olympus Optical Co., Ltd. (Olympus Optical), a Japanese corporation, was a named defendant. The Olympus America Defendants, New York corporations and subsidiaries of Olympus Optical, were not named. Olympus America, Inc., was involved in the importation, distribution and sale of the colonoscope.
In April 1999, Av-ner filed the first amended complaint (complaint). In November 1999, Av-ner propounded upon Olympus Optical a demand for production of documents in which he sought documents from Olympus Optical as well as â€
