NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

INTRODUCTION

Ottavio Belvedere and his wife Noella Belvedere brought an action for negligence, strict liability, and loss of consortium against various companies alleging that Ottavio contracted malignant mesothelioma from exposure to asbestos contained in the companies' products. Following Ottavio's death, plaintiffs and appellants Noella, on behalf of herself and Ottavio's estate, and the Belvedere children—Julia Belvedere-Thomason, Ricardo Belvedere, and Leonardo Belvedere—filed a first amended complaint alleging wrongful death and a survival action on theories of negligence and strict liability.1 Thereafter, the Belvederes filed an amendment to their first amended complaint naming defendant and respondent G.S. Blodgett (Blodgett) as a "Doe" defendant. The trial court granted summary judgment to Blodgett on the ground that the Belvederes' actions are barred by the asbestos statute of limitations and the Belvederes appeal. We affirm the judgment as to the survival claim and Noella's wrongful death claim. We reverse the judgment as to the wrongful death claims of Julia, Ricardo, and Leonardo.

BACKGROUND

On April 4, 2006, Ottavio, a restaurant owner and worker, was diagnosed with mesothelioma. Ottavio worked around Blodgett pizza ovens continuously from 1959 until he was diagnosed with mesothelioma. The ovens conspicuously were labeled "Blodgett."

At his deposition, Ottavio's brother Armando Belvedere testified that Ottavio told him that he (Ottavio) had been diagnosed with mesothelioma and was going to have surgery shortly. According to Armando, Ottavio said that his doctor told him that he contracted mesothelioma from asbestos exposure. At her deposition, Ottavio's daughter Julia testified that she was present at one of her father's medical appointments during which appointment the doctor discussed with Ottavio the connection between mesothelioma and asbestos.

On five to 10 occasions after Ottavio was diagnosed with mesothelioma, Armando told Ottavio that Blodgett ovens contained asbestos and suggested to Ottavio, "`Maybe you got it from there . . . ."2 In 1989, Armando had complained to a Blodgett representative that the new Blodgett ovens Armando had installed in a restaurant were burning the bottoms of pizzas. The representative told Armando that the ovens contained a "new stone." The representative explained that the "old stone," which contained asbestos and maintained heat evenly, had been outlawed.

At her deposition, Noella was asked when she first heard that there was a connection between asbestos exposure and Ottavio's mesothelioma. Noella responded, "When they told him he had mesothelioma, I went in the computer and find all the good things about it." Asked what she had "found out," Noella responded, "Nothing good. Just asbestos, the cancer that he had was mostly from asbestos . . . ." Prior to Ottavio's death, Armando told Noella that a Blodgett representative told him in 1989 that "earlier" Blodgett ovens contained asbestos.

On June 21, 2007, Ottavio and Noella filed a complaint for personal injury and loss of consortium. On November 1, 2007, Ottavio passed away. On May 15, 2008, the Belvederes filed a first amended complaint for wrongful death and a survival action. Neither the original complaint nor the first amended complaint named Blodgett as a defendant. On December 11, 2008, the Belvederes filed an amendment naming Blodgett as a Doe defendant.

DISCUSSION

The Belvederes contend that the trial court erred in holding that their survival action and wrongful death claim are barred by the asbestos statute of limitations in Code of Civil Procedure section 340.2.3 We hold that the trial court properly found that the asbestos statute of limitations bars Noella's survival and wrongful death actions and that the trial court erred in finding that the asbestos statute of limitations bars Julia's, Ricardo's, and Leonardo's wrongful death actions.

I. Standard Of Review

"We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make `an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)" (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)

II. Application Of Relevant Principles

The statute of limitations for Noella's asbestos-based survival action in the first amended complaint is one year from the later of Ottavio's disability or one year from the date Noella knew or should have known that asbestos was a factor in Ottavio's disability. (§ 340.2, subd. (a).) The statute of limitations for the Belvederes' wrongful death claims in the first amended complaint is one year from the later of Ottavio's death or one year from the date the Belvederes knew or should have known that asbestos was a factor in Ottavio's death. (§ 340.2, subd. (c).)

Claims based on Ottavio's disability or death accrued not later than November 1, 2007, the date Ottavio died. Using the date of Ottavio's death as the date of accrual, the first amended complaint, filed on May 15, 2008, was filed within the one year limitations period. The amendment to the first amended complaint that added Blodgett as a Doe defendant was filed on December 11, 2008, more than one year after the survival action and wrongful death claim accrued. Accordingly, the Belvederes' actions are barred by the applicable statute of limitations unless the filing of the Doe amendment relates back to the timely filed first amended complaint.

Section 474 provides, "When a plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and when his true name is discovered, the pleading or proceeding must be amended accordingly . . . ." "The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. [Citations.] A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citations.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed. [Citation.]" (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)

For the relation back doctrine to apply, the original complaint must have stated a valid cause of action against the newly identified "Doe" defendant; at the time the original complaint was filed, the plaintiff must have been genuinely ignorant of the Doe defendant's identity or the facts giving rise to the defendant's liability; and the amended complaint naming the Doe defendant must be based on the same general set of facts as the original complaint and refer to the same accident and the same injuries. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1997) ¶ 6:740, p. 6-181 to 6-182 (rev. # 1, 2009), citing Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600-601.)

A. Survival Action

Section 377.31 provides for the continuation of a decedent's personal injury action by the decedent's personal representative or successor in interest.4 Ottavio's personal representative in this case is Noella. Section 366.1 sets the statute of limitations for survival actions at the later of six months after the decedent's death or the limitations period that would have applied had the decedent not died.5 Section 340.2, subdivision (a) sets the statute of limitations for asbestos-related personal injury actions at one year.6 The one-year limitations period for asbestos-related personal injury actions begins to run on the date a person is first disabled or the date when the person knew or should have known that asbestos exposure caused or contributed to the disability. (Ibid.) A "disability" is "the loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation." (Id. at subd. (b).)

Blodgett contends that the undisputed evidence shows that Ottavio did not return to work after his May 11, 2006, mesothelioma surgery and thus was disabled as of that date. In support of its contention, Blodgett relies on testimony from Ottavio's sons Ricardo and Leonardo that Ottavio did not work at the Belvedere family's restaurants—"Ric's," managed by Ricardo, and "Ottavio's," managed by Leonardo—following his surgery, and Armando's testimony that Ottavio did not work after his surgery.

The Belvederes argue that the evidence is in dispute concerning Ottavio's return to work. They rely on Noella's deposition testimony. Noella testified that Ottavio worked 12 hours a day in the family's restaurant until 1998 or 1999, when he suffered an outbreak of shingles. Thereafter, Ottavio scaled back his work to about six hours a day except for the month of December, which was a "big month" for the restaurant, when he resumed his 12-hour daily work schedule. Noella testified, "Then December he would work the 12 hours, because December is always a big month. So he would work the whole month. He did that the year before he died, actually. He went back sick."

Noella's testimony creates a factual dispute about whether Ottavio was disabled immediately following his mesothelioma surgery. Ottavio underwent mesothelioma surgery on May 11, 2006, and died on November 1, 2007. Noella's testimony that Ottavio worked at the restaurant 12 hour days during December "the year before he died" refers to December 2006—after his mesothelioma surgery.

Notwithstanding the factual dispute concerning Ottavio's return to work after his May 11, 2006, mesothelioma surgery, the parties do not dispute that Ottavio's death can be used to establish the latest date that Ottavio may be considered "disabled" for calculating the statute of limitations. Using the date of Ottavio's death—November 1, 2007—as the date of disability, the undisputed evidence establishes that Noella's survival action is barred by the one-year statute of limitations in section 340.2. The undisputed evidence shows that Ottavio worked around Blodgett pizza ovens continuously from 1959 until he was diagnosed with mesothelioma on April 4, 2006. The ovens conspicuously were labeled "Blodgett." Armando testified that Ottavio said that his doctor told him that he contracted mesothelioma from asbestos exposure. Julia testified at her deposition that she was present when Ottavio's doctor discussed with Ottavio the connection between mesothelioma and asbestos. Armando testified that he told Ottavio on five to 10 occasions after Ottavio was diagnosed with mesothelioma that Blodgett ovens contained asbestos, and that he suggested to Ottavio, "`Maybe you got it from there . . . ." Noella testified that she first heard that there was a connection between asbestos exposure and Ottavio's mesothelioma when Ottavio was informed of his diagnosis. Noella "went in the computer" and "found out" that "the cancer that [Ottavio] had was mostly from asbestos . . . ." Prior to Ottavio's death, Armando told Noella that a Blodgett representative told him in 1989 that "earlier" Blodgett ovens contained asbestos.7 There is no evidence that adequately contradicts the evidence that Noella was informed of the possibility of asbestos in the Blodgett ovens prior to Ottavio's death. (§ 437c, subd. (p)(2); McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105.)

Thus, the undisputed evidence shows that Ottavio and Noella, Ottavio's personal representative, knew or reasonably should have known prior to Ottavio's death that Ottavio worked around Blodgett ovens, that asbestos exposure can cause mesothelioma, and that Blodgett ovens contained asbestos. Accordingly, Noella had one year following Ottavio's death to file the amendment to the first amended complaint naming Blodgett as a Doe defendant. Because Noella filed the amendment adding Blodgett as a Doe defendant on December 11, 2008, more than 13 months after Ottavio's date of disability, the amendment is barred by the statute of limitations and does not relate back to a time when the period of limitations had not run.

C. Wrongful Death

Section 377.60 authorizes a cause of action for wrongful death and provides that a wrongful death action may be asserted by certain persons (surviving spouse, domestic partner, children, etc.) or by the decedent's personal representative on behalf of such persons.8 (Romero v. Pacific Gas & Electric Co. (2007) 156 Cal.App.4th 211, 216.) "The wrongful death statute has been interpreted to authorize only a single action, in which all the decedent's heirs must join. [Citation.]" (Ibid.) Section 340.2, subdivision (c) sets the statute of limitations for asbestos-related wrongful death actions at one year.9 The one-year limitations period for asbestos-related wrongful death actions begins to run on the date of death or the date when the person knew or should have known that asbestos exposure caused or contributed to the death. (Ibid.)

There are four plaintiffs asserting a wrongful death claim based on Ottavio's death—Noella, Julia, Ricardo, and Leonardo. As to Noella, as discussed above, the evidence demonstrates that she knew or reasonably should have known as of the date of Ottavio's death that Ottavio worked around Blodgett ovens, that asbestos exposure can cause mesothelioma, and that Blodgett ovens contained asbestos.

Noella argues that there is a factual dispute concerning whether she was aware more than one year before Blodgett was added as a Doe defendant that Ottavio had been exposed to asbestos from a Blodgett oven. In support of this argument, Noella cites her deposition testimony that she did not learn from her computer research or from "any other source at that time" where Ottavio might have been exposed to asbestos, and that she never discussed with Ottavio the subject of whether he might have been exposed to asbestos while working in the restaurant. Noella fails to establish a factual dispute because her deposition testimony that she did not learn from her computer research or from "any other source at that time" where Ottavio might have been exposed to asbestos is not necessarily inconsistent with Armando's testimony that prior to Ottavio's death he told Noella that a Blodgett representative told him in 1989 that "earlier" Blodgett ovens contained asbestos. Noella's testimony refers to computer research she conducted when Ottavio was diagnosed with mesothelioma. Armando's conversation with Noella may have taken place later. Likewise, Noella's testimony that she never discussed with Ottavio the subject of whether he might have been exposed to asbestos while working in the restaurant does not create a factual dispute with Armando's testimony. Whether Noella discussed the source of Ottavio's asbestos exposure with Ottavio has no bearing on whether Armando told Noella prior to Ottavio's death that "earlier" Blodgett ovens contained asbestos.

Because Noella knew or reasonably should have known as of the date of Ottavio's death that Ottavio worked around Blodgett ovens, that asbestos exposure can cause mesothelioma, and that Blodgett ovens contained asbestos, she had one-year following Ottavio's death to file the amendment to the first amended complaint naming Blodgett as a Doe defendant and a later filed Doe amendment would not relate back to the first amended complaint. Because Noella filed the amendment adding Blodgett as a Doe defendant on December 11, 2008, more than 13 months after Ottavio's date of death, the amendment as to Noella's wrongful death claim is barred by the statute of limitations.

As to Julia, Ricardo, and Leonardo, Blodgett presented evidence that, as of the date of Ottavio's death, these plaintiffs knew that Ottavio worked around Blodgett ovens and that asbestos exposure can cause mesothelioma. Blodgett did not present any evidence, however, that any of the Belvedere children knew or reasonably should have known that Blodgett ovens contained asbestos. Absent evidence establishing when the Belvedere children knew or reasonably should have known that Blodgett ovens contained asbestos, a question of fact remains concerning whether the amendment naming Blodgett as a Doe defendant relates back to the date when the first amended complaint was filed. Blodgett contends that for purposes of the wrongful death claim and the relation back doctrine, Julia's, Ricardo's, and Leonardo's "knowledge is of no consequence given Noella's specific knowledge of facts conveyed by Amarndo [sic] which started the statute of limitations running." Blodgett argues that because section 377.60 authorizes a single action that all heirs must join, "the knowledge of any individual plaintiff heir starts the statutory clock." Blodgett is mistaken. "As explained by our high court, the wrongful death statute `is a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action.' (Cross [v. Pacific Gas & Elec. Co. (1964)] 60 Cal.2d [690,] 692.) Accordingly, each heir has a `personal and separate cause of action' and the expiration of the statute of limitations as to one heir does not impact the timely wrongful death claims of other heirs. (Id. at pp. 692-693, 36 Cal.Rptr. 321, 388 P.2d 353.) In other words, the statute of limitations runs separately against each heir's cause of action. (Andersen v. Barton Memorial Hospital, Inc. (1985) 166 Cal.App.3d 678, 681 [212 Cal.Rptr. 626] (Andersen).)" (San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1551.) Because a question of fact exists as to whether the amendment naming Blodgett as a Doe defendant relates back to the date when the first amended complaint was filed, the trial court erred in granting summary judgment as to the Belvedere children's wrongful death actions.

DISPOSITION

The judgment is affirmed as to Noella Belvedere's survival and wrongful death claims. The judgment is reversed as to the wrongful death claims of Julia Belvedere-Thomason, Ricardo Belvedere, and Leonardo Belvedere. The parties are to bear their own costs on appeal.

We concur:

TURNER, P. J.

ARMSTRONG, J.