Plaintiffs James John Brothers and Betty Summerville sued petitioners Heritage Logistics, LLC and CalMat Co. (collectively, Heritage) for damages arising from a personal injury accident. Heritage filed a cross-complaint for indemnity, seeking to shift any potential liability to third parties. Heritage then obtained summary judgment on all of plaintiffs’ claims, rendering further prosecution of the indemnity cross-complaint moot and impractical. Plaintiffs appealed and summary judgment was reversed. Following remand, Heritage substituted Guzman Grading & Paving, Inc. (Guzman) as a Roe cross-defendant.
Guzman moved to dismiss the cross-complaint under section 583.210, asserting it was not served with the cross-complaint within three years of filing, after taking into account tolling while a prior appeal was pending. The trial court granted the motion finding that the cross-complaint was served after the three-year deadline. Heritage petitioned the Court of Appeal for writ relief and the Court of Appeal issued an order to show cause, calling for further briefing.
Horvitz & Levy was retained to prepare the briefing in the Court of Appeal. Horvitz & Levy argued that the trial court erred in calculating the three-year time period. One of the primary issues was calculation of when the cross-complaint was deemed served because the superior court clerk erroneously rejected the initial filing.
The Court of Appeal granted writ relief holding that the clerk’s rejection of the cross-complaint was improper. Based on the proper filing date, the cross-complaint was timely served within the three-year time period.
Brothers v. Heritage Logistics II E087510 
