Amie v. Superior Court

• Decision Date: 05 December 1979
• Citation: 99 Cal.App.3d 421,160 Cal.Rptr. 271
• Court: California Court of Appeals Court of Appeals
• Parties: L. C. AMIE, Petitioner, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, The COUNTY OF RIVERSIDE, Real Party in Interest. Civ. 21246.

Page 271

160 Cal.Rptr. 271

99 Cal.App.3d 421

L. C. AMIE, Petitioner, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, The COUNTY OF RIVERSIDE, Real Party in Interest.

Civ. 21246.

Court of Appeal, Fourth District, Division 2, California.

Dec. 5, 1979.

[99 Cal.App.3d 423] Greg Espinosa and Inland Counties Legal Services, Riverside, for petitioner.

No appearance for respondent.

Byron C. Morton, Dist. Atty., John K. Gaustad and Robert L. Ebert, Deputy Dist. Attys., for real party in interest.

OPINION

THE COURT

Petitioner is the defendant in an action in respondent court by which the County of Riverside, real party in interest herein, seeks reimbursement of public assistance and establishment of child support for Lorina Amie, born May 8, 1964. Petitioner demurred to the complaint to the extent that it sought recovery of public assistance paid for the support of Lorina more than three years before the filing of the complaint. In opposing the demurrer, the county contended that it was entitled to reimbursement for all assistance paid for the support of Lorina, beginning in January 1964, five months before her birth. The respondent court overruled petitioner's demurrer and petitioner thereupon filed the present proceeding seeking a writ of mandate directing the respondent court to vacate its order overruling the demurrer and to enter a new order sustaining the demurrer. We initially denied the petition for a writ of mandate but the Supreme Court granted a hearing and remanded the matter to this court with directions to issue an alternative writ.

The issue presented being a matter of first impression and general importance to the bench and bar, mandate is an appropriate remedy. (Michael B. v. Superior Court (1978) 86 Cal.App.3d 1006, 1009, 150 Cal.Rptr. 586; Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 128-130, 142 Cal.Rptr. 325.) In any event, by directing the issuance of an alternative writ, the Supreme Court has determined that there is no other adequate remedy. (People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 492, 96 Cal.Rptr. 553, 487 P.2d 1193; San Francisco Unified School Dist. v. Johnson, 3 Cal.3d 937, 945, 92 Cal.Rptr. 309, 479 P.2d 669.)

The county's action for reimbursement is based on Welfare and Institutions Code section 11350 and Civil Code section 248. ¹ Petitioner maintains that this action is subject to the three-year limitations period of Code of Civil Procedure section 338, subdivision (1), which governs an "action upon a liability created by statute, other than a penalty or forfeiture." The county maintains that there is no statute of limitations in regard to its action or, if a limitations period exists, it does not run while the child is a minor.

Although the county insists that the right to obtain reimbursement for support furnished to a child is well-established and of ancient origin, we have found no case in which a noncustodial parent has been required to reimburse another for support furnished to a child in the absence of an order or agreement. It is established that "a mother cannot claim reimbursement for money paid out in support of a child prior to an order of the court directing the father to pay support to meet the current needs of the child." (Bierl v. McMahon (1969) 270 Cal.App.2d 97, 105, 75 Cal.Rptr. 473, 478. ² ) In the present action, the county admitted in its complaint that there is no existing order for the support of the minor child. Under Civil Code section 207, a third party furnishing necessities to a child may obtain reimbursement from a parent, but only if the parent has custody of the child. (In re Marriage of O'Connell (1978) 80 Cal.App.3d 849, 855-856, 146 Cal.Rptr. 26.) Petitioner has apparently never had custody of Lorina.

The county has argued that its right of action is derived, by way of assignment or subrogation, from the child's right of action against her parent for support. (See In re Marriage of Shore (1977) 71 Cal.App.3d 290, 297, 139 Cal.Rptr. 349.) As the child's minority would toll the statute of limitations in an action commenced by her (Code Civ.Proc., § 352, subd. (a)(1); Van Buskirk v. Todd (1969) 269 Cal.App.2d 680, 689, 75 Cal.Rptr. 280), the county maintains that the statute likewise is tolled as to its action.

Although a minor child may sue in his own name for support (see, e. g., Fagan v. Fagan (1941) 43 Cal.App.2d 189, 110 P.2d 520), we are not aware of any case in which a child has attempted to obtain reimbursement from a noncustodial parent for past support. Furthermore, the disability of a minor which tolls the statute of limitations is personal and may not be transferred by assignment or subrogation. (54 C.J.S. Limitations of Actions § 217, p. 252.) Assignment destroys the purpose of the tolling provision for minors. Because a minor does not have the understanding or experience of an adult, and because a minor may not bring an action except through a guardian (Code Civ.Proc., § 372), special safeguards are required to protect the minor's rights of action. (See Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 604-608, 68 Cal.Rptr. 297, 440 P.2d 497.) Here, the county seeks reimbursement for itself, not for Lorina; the county does not suffer the burdens of minority and therefore has no claim to its benefits. (See Civ.Code, § 3510.)

The county has also relied on the general rule that "(t)he obligation of a father to support his child, whether legitimate or illegitimate, is a continuing duty against which the statute of limitations does not run during the time the child needs such support." (Perez v. Singh (1971) 21 Cal.App.3d 870, 872, 97 Cal.Rptr. 920, 921, citing Fernandez v. Aburrea (1919) 42 Cal.App. 131, 132, 183 P. 366.)

The wording of the rule is misleading because the very notion of the statute of limitations running against a duty (as opposed to a cause of action based on a breach of duty) is a legal absurdity. In fact, examination of the cases stating this rule indicates that in each case the issue was the child's right to present and future support, not reimbursement for support furnished before the action was brought. By stressing the continuing nature of the parent's duty to support the child until adulthood, the rule invokes the familiar principle that each breach of a continuing duty gives rise to a new cause of action. (See 2 Witkin, Cal. Procedure (2d ed.) Actions, § 285, p. 1134.) The statute runs against each new cause of action from the date of breach. (See Tillson v. Peters (1940) 41 Cal.App.2d 671, 674-675, 107 P.2d 434.)

In Board of Retirement v. Terry (1974) 40 Cal.App.3d 1091, 115 Cal.Rptr. 718, a county retirement board sought to recover retirement benefits paid to an injured county employee from a third party tortfeasor. The court concluded that the action was based on a statutory liability and thus was subject to the three-year limitations provision of Code of Civil Procedure section 338, subdivision (1). (Terry, supra, at pp. 1093-1094, 115 Cal.Rptr. 718.) Another analogous case is County of Santa Cruz v. McLeod (1961) 189 Cal.App.2d 222, 11 Cal.Rptr. 249, in which a county sought to recover old age security payments it had made to an ineligible recipient. The court held that the right to recover the funds, being statutory in origin, was subject to the three-year limitations period of Code of Civil Procedure section 338, subdivision (1). (McLeod, supra, at p. 229, 11 Cal.Rptr. 249.) Cases in which retirement is sought for support of an indigent or mentally ill person at a county hospital are also analogous, but such actions are subject to a special four-year limitations period found in Code of Civil Procedure section 345. (Dept. of Mental Hygiene v. McGilvery (1958) 50 Cal.2d 742, 752, 329 P.2d 689; County of Los Angeles v. Read (1961) 193 Cal.App.2d 748, 753, 14 Cal.Rptr. 628. See also, County of Santa Clara v. Vargas (1977) 71 Cal.App.3d 510, 515-516, 139 Cal.Rptr. 537.)

These analogous cases support petitioner's position. The Legislature has decided that a limitations period of three years (or four years where hospital care has been provided) is a reasonable length of time to allow for an action by a county to...