Wednesday, August 28, 2013

Majority Affords No Tolling for Minority

Barker v. Garza, No. B237916 (D2d8 Aug. 22, 2013) 

In a split decision, the court of appeal holds that tolling of a statute of limitations due to the plaintiff’s minority status under Code of Civil Procedure § 352(a) does not apply to claims brought under the Drug Dealer Liability Act. In reaching that result it suggests a broad interpretive rule that the dissent finds particularly problematic.

The plaintiff’s mentally ill brother died in June 2008 as the result of an overdose of fentanyl and/or Klonopin, powerful prescription-only pain killers that were allegedly sold or distributed to him by a psychiatric nurse with whom he had an inappropriate relationship. Two years later, plaintiff filed suit alleging that the defendant was liable under the DDLA, Health & Safety Code §§ 11700, et seq. The DDLA creates a civil damages remedy for persons injured as the result of the use if illegal drugs. The DDLA has a one-year statute of limitations, which provides for an extension until one year after an individual defendant is convicted of an offense involving an illegal drug. Id. § 11714(a), (b). Defendant demurred on this grounds. In arguing that her DDLA claim was timely, plaintiff argued the statute of limitations was tolled under Code of Civil Procedure § 352(a) and did not commence running until she attained the age of majority in April 2010. The trial court held that tolling did not apply and granted the demurrer. Plaintiff appealed.

Section 352(a) tolls the statute on minors’ claims for actions “mentioned in Chapter 3,”—i.e., Code of Civil Procedure §§ 335–349.4—until the minor turns eighteen. The DDLA’s limitations period, however, is codified with the substance of the DDLA in the Health & Safety Code. Plaintiff argued, however, that Chapter 3 does, in fact, “mention” statutory causes of action like one under the DDLA, in its provision addressing “[a]n action upon a liability created by statute, other than a penalty or forfeiture.” Code Civ. Proc. § 338(a). The fact that the DDLA’s more specific limitations period would apply would not mean that a DDLA claim was not mentioned in Chapter 3.

The majority disagreed. It noted that the DDLA limitations provision set out a one-year limitations period, “[e]xcept as otherwise provided in this section,” i.e., in Health & Safety Code § 11714. That section does, in fact provide a tolling exception, but one that is only applicable when the defendant has been convicted of a drug offense. The court reasoned that the creation of such an express exception meant that the legislature intended to preclude the application of other statutory tolling rules, including the minority tolling under the application of the minority tolling § 352(a).

In order to get to this result, the majority distinguished Williams v. Los Angeles Metropolitan Transit Authority, 68 Cal. 2d 599, 602 (1968), which held that § 352(a) applied to toll a negligence claim against a public entity, which must be commenced within the time period set forth in Government Code section 945.6. Williams held that such a claim was “mentioned” in Chapter 3 because § 342 specifically contains a cross reference to the limitations period in the Government Code. Because the legislature declined to add a cross reference to the DDLA in Chapter 3, the majority found Williams distinguishable. The majority bolstered this analysis by reference to the DDLA’s legislative history, reasoning that the fact that the DDLA specifically conveyed standing on minors, including infants exposed to drugs in utero, but did not provide for tolling for minor meant the exclusion was deliberate. The court further noted that the legislature was clearly concerned Health & Safety Code § 11714(b)’s tolling based on convictions was potentially too long. Tolling of upwards of eighteen years for DDLA plaintiffs exposed in utero would be of even greater concern.

Justice Rubin dissented, relying principally on the point that “action[s] upon a liability created by statute,” which would include the DDLA, are expressly mentioned in § 338(a). He reasoned that although the three-year period in § 338(a) might not apply because of the specific one-year period in the DDLA, this did not mean that it was not mentioned in Chapter 3. He noted that the majority’s reasoning created the anomalous result that “(1) when liability is created by a statutory scheme that does not provide its own limitations period, it falls within section 338 and tolling under section 352 applies unless it is expressly excluded; and (2) when liability is created by a statutory scheme that does include such an internal limitations period, then section 352 tolling does not a apply unless the Legislature expressly includes it.” He further read that result to be inconsistent with Williams and the legislative intent that the DDLA provide relief to very young children, including children born of parents who are addicted to drugs and thus unlikely vigorously pursue their children’s rights under the statute.

Justice Rubin read the majority’s rule as holding that § 352 “does not apply to actions upon a statutory liability that include an internal limitations period unless the Legislature expressly declares that it does.” He warned that the implications of that rule “extend far beyond the [DDLA] to all actions upon a statutory liability, many of which have their own statutes of limitations ‘scattered throughout the many special codes.’” He thus urged the Supreme Court to grant review and clarify the issue.


Typical of California, this procedural dispute concerns somewhat awkward statutory language—“an action, mentioned in Chapter 3”—that was enacted as part of the original Civil and Civil Procedure Codes in March of 1872. From a plain reading, it seems to me like a cause of action being “mentioned” in a chapter is different than its being “limited by” that chapter. (Other uses of “mentioned” in the 1872 codifications suggest that the term means simply “listed” or “referenced.” See Cal Civ. Code §§ 1941, 2802, 3357; Cal Code Civ. Proc. §§ 1109, 1110, 1178, 1991.) Indeed, looking at the 1872 enactment, the “mentioned by” language appears to have generally been intended to exclude from the scope of § 352 the causes of action for the recovery of real property whose limitations are addressed in Chapter 2, which has its own disability tolling provision codified in § 328.

We’ll see who carries the day here. Given the narrowness of the actual holding compared with the arguable breadth of the rationale, review or at least a request for depublication would not seem out of the question.

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