Bollinger Theory

"Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399 Bollinger, . . . declares a general equitable principle of disregard of the statute of limitations to avoid a harsh and technical forfeiture." (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, 666, p. 850.) In Bollinger v. National Fire Ins. Co., the plaintiff timely filed an action against the insurer, but the court erroneously dismissed it as premature under the policy terms. The plaintiff promptly filed a new action, but by then the limitations period had expired. The court nonetheless allowed the action under general equitable principles. The Bollinger court stated it was "not powerless to formulate rules of procedure where justice demands it. Indeed, the court had shown itself ready to adapt rules of procedure to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits." (Bollinger, supra, 25 Cal.2d at p. 410.) The "Bollinger theory can be applied to prevent a forfeiture in any situation in which the first action has failed to accomplish its purpose." (3 Witkin, Cal. Procedure, supra, Actions, 667, p. 852.) In Schneider v. Schimmels (1967) 256 Cal. App. 2d 366, 371, 64 Cal. Rptr. 273 the court applied the Bollinger theory to "an action originally commenced in another jurisdiction, then shifted to California." The court explained there is a policy that "calls for the trial and determination of actions on their merits, especially where the purpose of the statute of limitations has been served by the timely filing of the original action, followed by a continued effort on the part of the plaintiff to maintain the action and pursue the case until a decision on the merits has been reached." (Ibid.) In Schneider v. Schimmels, the plaintiff timely filed an action in Colorado, which was dismissed. The plaintiff timely filed a second action in Colorado, but by then the defendant had left the state and could not be served. The court held the plaintiff's subsequent California action was not barred by the one-year statute of limitations. (Id. at p. 372.) In Wood v. Elling Corp. (1977) 20 Cal.3d 353, the Supreme Court disapproved of Schneider v. Schimmels, supra, 256 Cal. App. 2d 366, "to the extent it is inconsistent herewith." (Wood v. Elling Corp., at p. 362, fn. 7.) However, in Addison v. State of California (1978) 21 Cal.3d 313, 319, the court approvingly cited Schneider v. Schimmels for the proposition the limitations period may be equitably tolled when the defendant had timely notice of similar proceedings in another state. In Addison, the court explained "application of the doctrine 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." (Addison, supra, at p. 319.) In Wood v. Elling Corp., supra, 20 Cal.3d 353, the plaintiff sued individuals and two corporations for fraud, but the corporations were dismissed on demurrer because they were not served with the complaint within the three year statute of limitations. The case proceeded against the individuals and the plaintiff prevailed. The plaintiff then brought another action against the same parties for the same relief, this time alleging the corporations were the alter egos of the individuals. The defendants prevailed on demurrer on the ground of untimeliness. On appeal, the court held a "Bollinger-type" equitable tolling was inapplicable to the corporations because it "would permit a plaintiff to impair the credit of a corporate defendant for an indefinite period of time while pursuing the action against other defendants alleged to be its controlling principals by the expedient of failing to serve the corporation and renewing the action after each . . . dismissal." (Id. at p. 362.)