Summary
applying the two-year statute of limitations, rather than a one-year limitations period, to an action with similar relevant dates
Summary of this case from Frost v. Diocese of San BernardinoOpinion
No. B176544
April 13, 2005 [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of Discussion, part III.
Appeal from the Superior Court of Los Angeles County, No. BC313298, Rodney E. Nelson, Judge.
Mouzoon Heying and Thomas Pham, Jr., for Plaintiff and Appellant.
Forgey Hurrell, Lisa D. Collinson and Melinda Hedin for Defendant and Respondent.
OPINION
INTRODUCTION
Plaintiff and appellant Bertha Andonagui (plaintiff) filed a personal injury action against defendant and respondent The May Department Stores Company (defendant), alleging general negligence and premises liability. Plaintiff pleaded her premises liability cause of action in two counts: negligence and willful failure to warn under Civil Code section 846.
The trial court sustained defendant's demurrer to plaintiff's complaint without leave to amend, determining that plaintiff's entire action was barred by the one-year statute of limitations for personal injury actions in former Code of Civil Procedure section 340, subdivision (3). Plaintiff appeals, contending that her action was not time-barred because it was governed by the two-year statute of limitations in section 335.1, which became effective on January 1, 2003. Defendant contends that the trial court properly sustained the demurrer without leave to amend because section 335.1 did not apply retroactively to plaintiff's action. Alternatively, defendant contends that the trial court correctly sustained the demurrer without leave to amend as to the willful failure to warn count because the factual allegations supporting that count did not show a willful or malicious failure to warn.
All statutory citations are to the Code of Civil Procedure unless otherwise noted.
The trial court sustained defendant's demurrer on June 7, 2004. Plaintiff prematurely filed her notice of appeal on June 30, 2004. The trial court filed its order dismissing plaintiff's action on July 30, 2004. We will treat plaintiff's notice of appeal as having been filed immediately after the filing of the order dismissing her action. (Cal. Rules of Court, rule 2(e)(2).)
In the published portion of the opinion we hold that the two-year statute of limitations for personal injuries actions in section 335.1 applies to actions not already time-barred by the one-year statute of limitations in section 340, subdivision (3) when section 335.1 became effective on January 1, 2003, and, therefore, plaintiff's action was not time-barred. In the unpublished portion of the opinion we hold that the trial court properly sustained, without leave to amend, defendant's demurrer to the willful failure to warn count. Accordingly, we reverse in part and affirm in part.
BACKGROUND
On April 6, 2004, plaintiff filed a personal injury action against defendant. The complaint asserted causes of action for general negligence and premises liability based on injuries plaintiff allegedly sustained at a Robinsons-May store in Montebello on December 15, 2002, when she fell after tripping on a metal rack that had been left on the floor. In her complaint, plaintiff alleges a premises liability cause of action based on negligence and a willful failure to warn under Civil Code section 846.
Defendant demurred to the complaint, contending that plaintiff's action was barred by the one-year statute of limitations for personal injury actions in former section 340, subdivision (3). Defendant also demurred to plaintiff's willful failure to warn count, contending that it was not supported by sufficient factual allegations. Plaintiff argued that the two-year statute of limitations in new section 335.1 governed her action. Plaintiff reasoned that the two-year statute of limitations applied because her action was not time-barred as of the date section 335.1 became effective. Plaintiff did not address defendant's alternative argument that her alleged willful failure to warn count was not supported by sufficient factual allegations.
The trial court sustained defendant's demurrer without leave to amend and dismissed plaintiff's action. The trial court ruled that plaintiff's action was filed more than one year after she allegedly sustained her injuries and that section 335.1 did not apply retroactively to her action. The trial court did not address defendant's alternative argument as to plaintiff's count for willful failure to warn.
DISCUSSION
I. Standard of Review
"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. `We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' ( Serrano v. Priest (1971) 5 Cal.3d 584, 591 [ 96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].) Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [ 216 Cal.Rptr. 718, 703 P.2d 58] ( Blank).) We will uphold a judgment on an order sustaining a demurrer if any one of several grounds in the demurrer is well taken. ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [ 9 Cal.Rptr.2d 92, 831 P.2d 317].)
"Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment. [Citation.]" ( Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [ 75 Cal.Rptr. 766, 451 P.2d 406] ( Cooper); Blank, supra, 39 Cal.3d at p. 318.) "The burden of proving such reasonable possibility is squarely on the plaintiff." ( Blank, supra, 39 Cal.3d at p. 318; see Cooper, supra, 70 Cal.2d at p. 636.) "Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citation.]" ( Cooper, supra, 70 Cal.2d at p. 636.)
II. Statute of Limitations
"A basic canon of statutory interpretation is that statutes do not operate retrospectively unless the Legislature plainly intended them to do so." ( Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 [ 62 Cal.Rptr.2d 243, 933 P.2d 507].) "[W]here the application of a new or amended statute of limitations would have the effect of reviving an already time-barred claim, the general rule against retroactive application of the statute is applicable in the absence of a clear indication of legislative intent to the contrary." ( Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 378-379 [ 5 Cal.Rptr.3d 116], italics added.)
A new statute that enlarges a statutory limitations period applies to actions that are not already barred by the original limitations period at the time the new statute goes into effect. ( Douglas Aircraft Co. v. Cranston (1962) 58 Cal.2d 462, 465 [ 24 Cal.Rptr. 851, 374 P.2d 819] ( Douglas); Mudd v. McColgan (1947) 30 Cal.2d 463, 468 [ 183 P.2d 10] ( Mudd); Thompson v. City of Shasta Lake (E.D.Cal. 2004) 314 F.Supp.2d 1017, 1024.) The newly enlarged limitations period will apply retroactively, reviving actions that are already time-barred, only if the Legislature expressly stated such an intent. ( Douglas, supra, 58 Cal.2d at p. 465; Thompson, supra, 314 F.Supp.2d at p. 1024.) "These rules afford warning to potential defendants that until the statute of limitations has run it may be extended, whereas after it has run, they may rely upon it in conducting their affairs." ( Douglas, supra, 58 Cal.2d at p. 465.)
When plaintiff allegedly sustained her injuries on December 15, 2002, the statute of limitations then in effect for personal injuries was one year. (§ 340, subd. (3); Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1028 [ 9 Cal.Rptr.3d 767] ( Krupnick).) By legislation that became effective on January 1, 2003, the statute of limitations in effect when plaintiff filed her action on April 6, 2004, was two years. (§ 335.1; Krupnick, supra, 115 Cal.App.4th at p. 1028.) The one-year statute of limitations (§ 340, subd. (3)) had not barred her action at the time the two-year statute of limitations (§ 335.1) became effective. Plaintiff's action is governed by the two-year statute of limitations in effect when she filed her action (§ 335.1) rather than the one-year statute of limitations in effect at the time she allegedly sustained her injuries (§ 340, subd. (3)).
Citing Krupnick, supra, 115 Cal.App.4th 1026, defendant argues that section 335.1 has no retroactive application to plaintiff's action. Defendant correctly notes that when the Legislature enacted the two-year statute of limitations under section 335.1, it made its application retroactive only to actions brought by the victims of the terrorist attacks of September 11, 2001. (Stats. 2002, ch. 448, § 1, subds. (c), (d); Code Civ. Proc., § 340.10, subds. (a) (b); Krupnick, supra, 115 Cal.App.4th at p. 1029.) Defendant argues that by expressly making section 335.1 retroactive to actions brought by victims of the terrorist attacks of September 11, 2001, the Legislature intended to exclude all other retroactive applications of the statute. Application of section 335.1 to this case, however, is not, as defendant argues, a matter of retroactivity, and, thus, defendant's reliance on Krupnick, is unavailing.
In Krupnick, the plaintiff contended that section 335.1 "operated retroactively to revive his lapsed claim." ( Krupnick, supra, 115 Cal.App.4th at p. 1028, italics added.) The plaintiff alleged he sustained injuries on January 26, 2001. ( Id. at p. 1027.) He did not file his action until January 8, 2003. ( Ibid.) Under the one-year statute of limitations applicable when he sustained his injuries, he had only until January 26, 2002, to file his complaint. ( Id. at p. 1028.) The court held that section 335.1 did not apply to the plaintiff's action because it was time-barred prior to the January 1, 2003 effective date of the new two-year statute, and section 335.1 did not operate retroactively to revive his already time-barred action. ( Krupnick, at pp. 1028-1029.) Here, by contrast, plaintiff allegedly sustained her injuries on December 15, 2002, and her claim was but 17 days old and not time-barred when section 335.1 became effective on January 1, 2003. Thus, unlike the plaintiff in Krupnick or the victims of the terrorist attacks of September 11, 2001 — whose claims would have been barred as of September 11, 2002 (i.e., before section 335.1 became effective) — plaintiff's action did not have to be revived through retroactive application of section 335.1.
Defendant also relies on Abreu v. Ramirez (C.D. Cal. 2003) 284 F.Supp.2d 1250, 1256, for the proposition that the "statute of limitations in effect at the time a claim accrues is the limitation applicable to that claim for all time." In Abreu, a magistrate judge held that the plaintiff did not benefit from the enlarged two-year limitations period in section 335.1 because his claim accrued before January 1, 2003. ( Abreu, at p. 1256.) Abreu is not persuasive authority. The court in Abreu failed to consider the holdings in Douglas, supra, 58 Cal.2d 462 and Mudd, supra, 30 Cal.2d 463 that a new statute that enlarges a statutory limitations period applies to actions that are not already barred by the original limitations period at the time the new statute goes into effect ( Douglas, supra, 58 Cal.2d at p. 465; Mudd, supra, 30 Cal.2d at p. 468), and its holding is inconsistent with those cases.
Finally, defendant contends that Douglas, supra, 58 Cal.2d 462; Mudd, supra, 30 Cal.2d 463; and Evelyn, Inc. v. California Emp. Stab. Com. (1957) 48 Cal.2d 588 [ 311 P.2d 500] (cases on which plaintiff relies) should not apply here because they deal with "statutory liabilities" and not personal injury actions. Defendant does not cite any language in any of those cases that suggests that the Supreme Court intended its holdings to apply only to statutory liabilities and not to personal injury actions, and there is no justification for such a distinction. Therefore, the trial court erred in sustaining defendant's demurrer based on defendant's statute of limitations argument.
III. Plaintiff's Willful Failure to Warn Count Plaintiff's complaint contained two causes of action: general negligence and premises liability. Plaintiff pleaded her premises liability cause of action in two counts — negligence and willful failure to warn under Civil Code section 846 — by checking the corresponding boxes for those counts on the form complaint. Civil Code section 846 provides private landowners with limited liability for injuries persons sustain while using their land for recreational purposes. ( Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099.) "The statute provides an exception from the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land. [Citations.] Under section 846, an owner of any estate or other interest in real property owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give recreational users warning of hazards on the property, unless: (1) the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity. . . ." ( Ornelas v. Randolph, supra, 4 Cal.4th at p. 1099.) "A landowner's conduct becomes willful or malicious only if three elements are present: `"(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril."' [Citations.]" ( Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859.) Plaintiff's second cause of action and her willful failure to warn count are based on the following factual allegations:
See footnote, ante, page 435.
"While Plaintiff was lawfully present at the premises located at 1900 Montebello Town Center, Montebello, CA 90640, said Defendants, and each of them, so carelessly, recklessly and negligently owned, controlled, managed and maintained the subject premises so as to proximately cause Plaintiff to fall after tripping on a metal rack which was left on the floor. This condition was known, or in the exercise of ordinary and reasonable care, would have been known to Defendants, and each of them, in adequate time for a reasonably prudent person to warn of, repair and make safe the condition. As a proximate result of the negligence of Defendants, and each of them, Plaintiff sustained injuries resulting in the damages herein alleged."Defendant demurred to plaintiff's willful failure to warn count on the grounds that it failed to state facts sufficient to constitute a cause of action and it was uncertain in that it failed to allege facts that supported the alleged willful or malicious failure to warn. Plaintiff did not address this argument in her opposition to defendant's demurrer. The trial court granted defendant's demurrer solely with respect to defendant's statute of limitations argument. Although defendant again raises this argument as an alternative basis for affirming the trial court's demurrer with respect to the willful failure to warn count, plaintiff, as in the trial court, has chosen not to address the argument. Plaintiff alleges she sustained her injuries in a store, with no indication that a recreational purpose was involved. None of the facts alleged supports a finding that defendant's conduct was willful or malicious, as required by Civil Code section 846, because the facts alleged do not show that defendant had "actual or constructive knowledge that injury [was] a probable, as opposed to a possible, result of the danger" or that defendant consciously failed to act to avoid the peril. ( Bacon v. Southern Cal. Edison Co., supra, 53 Cal.App.4th at p. 859.) Plaintiff made no attempt either in the trial court or here to meet her burden of proving a reasonable probability that she can amend her complaint to cure the defects of her willful failure to warn count. ( Blank, supra, 39 Cal.3d at p. 318; Cooper, supra, 70 Cal.2d at p. 636.) Accordingly, the demurrer was properly sustained without leave to amend as to plaintiff's willful failure to warn count.
Defendant's demurrer to the willful failure to warn count rather than to the premises liability cause of action was appropriate. (See 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 909, p. 369 ["If the demurrer establishes a defect in one count, it will be sustained as to that count. For the purposes of the demurrer thus framed, the individual count is severable . . ."].)
DISPOSITION
The judgment is reversed except as to plaintiff's willful failure to warn count, as to which count the order sustaining the demurrer without leave to amend is affirmed. Each party shall bear her or its own costs on appeal.
Turner, P.J., and Kriegler, J. concurred.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI. section 6 of the California Constitution.