Gallo v. Superior Court

• Citation: 200 Cal.App.3d 1375,246 Cal.Rptr. 587
• Decision Date: 04 May 1988
• Docket Number: No. H004085,H004085
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph GALLO, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; Kim SHERRY, Real Party in Interest.

Page 587

246 Cal.Rptr. 587

200 Cal.App.3d 1375

Joseph GALLO, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent Kim SHERRY, Real Party in Interest.

No. H004085.

Court of Appeal, Sixth District, California.

May 4, 1988.

As Modified June 1, 1988.

David J. Stock, Stephen P. McCarthy, Mitchell & Stock, San Jose, for petitioner.

No appearance for respondent.

Devereaux Rendler, Law Offices of Frank A. Jelinch, Cupertino, for real party in interest.

CAPACCIOLI, Associate Justice.

This petition for a writ of mandate or prohibition raises the issue whether a recent statute of limitations, Code of Civil Procedure section 340.3, ¹ which extends the time to sue for damages due to commission of a felony offense until one year after judgment of conviction of the crime, applies retroactively to revive personal injury causes that were already barred when the new statute became effective. We conclude that it does not, hence will issue the writ of mandate to direct the respondent court to sustain petitioner's demurrer to that part of real party in interest's complaint which is barred by limitations.

Plaintiff and real party in interest Kim Sherry sued defendant and petitioner Joseph Gallo for assault and battery, false imprisonment, intentional infliction of emotional distress, negligence, premises liability, and conversion. She filed her complaint June 22, 1987. Gallo demurred on the basis of section 340, subdivision (3) (one year) for the personal injury torts, and section 338, subdivision (3) (three years) for the conversion.

Sherry alleged that over a period of several months Gallo beat and sexually abused her and took her property by force and intimidation. These acts occurred at the latest in April, 1982.

On November 13, 1986, Gallo was convicted of multiple felony charges based on the same acts Sherry alleged in her complaint, including assault, criminal attempt to dissuade a witness from testifying, extortion, and false imprisonment. Sherry argued that the convictions of extortion arose from the alleged tortious conversions, and the convictions of forcible offenses similarly arose from the alleged personal injuries.

Sherry contends that section 340.3 has extended the period of limitations within which she must file her claims. Section 340.3, an urgency statute which took effect on September 20, 1983, was enacted in implementation of Proposition 8 (the Victims' Bill of Rights, Cal. Const. art. I, § 28). It provides that the period of limitations for an action for damages based on commission of a felony offense shall be at least one year after judgment of conviction of the crime. Sherry filed her complaint within a year of pronouncement of Gallo's convictions. Holding the action timely within section 340.3, the trial court overruled Gallo's demurrer. Gallo seeks a writ of mandate to dismiss the action.

DISCUSSION

On the date that section 340.3 became effective, the one-year period of limitations had already expired as to Sherry's personal injury and related allegations which are subject to the one-year statute. (The last alleged act occurred in April 1982 and the statute became effective in September 1983.) However, the three-year period for the conversions had not yet expired. When the complaint was filed June 22, 1987, all relevant periods of limitations had elapsed, unless extended by section 340.3.

California law is unsettled regarding whether the Legislature may make a statute of limitations retroactive in the sense that it revives a claim which is already time-barred. (See, e.g., Douglas Aircraft Co. v. Cranston (1962) 58 Cal.2d 462, 465, 24 Cal.Rptr. 851, 374 P.2d 819; Mudd v. McColgan (1947) 30 Cal.2d 463, 467-468, 183 P.2d 10; Singer Co. v. County of Kings (1975) 46 Cal.App.3d 852, 866-867, 121 Cal.Rptr. 398). However, as a rule of statutory construction, it is established that an enlargement of limitations operates prospectively unless the statute expressly provides otherwise. (Mudd, supra, and Douglas Aircraft, supra; see also Carr v. State of California (1976) 58 Cal.App.3d 139, 147, 129 Cal.Rptr. 730; 3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 332, pp. 361-363.) The reason for this rule is a judicial perception of unfairness in reviving a cause after the prospective defendant has assumed its expiration and has conducted his affairs accordingly. A parallel doctrine, based on similar fairness considerations, applies in construing criminal statutes of limitations; the period Section 340.3 contains no express language saying whether or not it applies retroactively. Under general principles of California law, discussed above, we must construe it not to apply retroactively to revive already barred causes of action, unless some other principle, such as special rules for applying Proposition 8 (Cal. Const. art I, § 28), changes the general rule.

to prosecute may only be extended before it expires [200 Cal.App.3d 1379] and not, to paraphrase Judge Learned Hand, after the chase is over. (See Falter v. United States (2d Cir.1928) 23 F.2d 420, 425-426: "Certainly it is one thing to revive a prosecution already dead, and another to give it a new lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.")

In general, the courts have not retroactively applied the various statutes enacted to implement Proposition 8. (People v. Smith (1983) 34 Cal.3d 251, 261-262, 193 Cal.Rptr. 692, 667 P.2d 149; People v. Forster (1985) 169 Cal.App.3d 519, 525, 215 Cal.Rptr. 218.) For example, one decision states that if Proposition 8 imposed a duty on a government entity to respond in tort damages, that duty was not retroactive. (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 721-722, 230 Cal.Rptr. 823 [considering whether the "safe schools" provision of Proposition 8 confers liability on a school district to respond in damages for an assault on a student].)

The only decision to date which has applied any statute implementing Proposition 8 retroactively is Wood v. McGovern (1985) 167 Cal.App.3d 772, 213 Cal.Rptr. 498. That decision considered section 1021.4 which authorizes an award of attorneys fees in a personal injury action arising out of the commission of a felony. That statute, like section 340.3 here, was enacted as an urgency measure in September 1983 in implementation of Proposition 8. (See Wood, supra, fn. 5, at p. 774, 213 Cal.Rptr. 498.) The Wood court held that because section 1021.4 is a statute providing for attorneys fees, it is procedural and applies retroactively. The court based its ruling on the solidly-established body of precedent which holds generally that an attorneys fees statute applies to pending legal proceedings, even when the statute becomes effective after the occurrence of the underlying event. (See Wood v. McGovern, supra, at p. 775, 213 Cal.Rptr. 498, and decisions there cited.) Attorneys fees statutes create no new causes of action and affect only the amount of damages. (Ibid.) They are viewed as ancillary to the underlying causes. Accordingly such statutes are routinely applied retroactively. The Wood court also determined that such retroactive application of section 1021.4 in the civil action did not have the effect of an impermissible ex post facto punishment.

Here, however, the underlying general body of precedent regarding changes in periods of limitations does not favor retrospectivity but instead, as stated above, presumes that periods of limitations once expired may not be revived except by express statutory language to that effect.

However, there is some decisional uncertainty in applicable California law. Cases in two areas--(1) elimination of the claims filing requirement in inverse condemnation cases and, (2) postponement of the accrual date of causes arising from asbestos-related injuries--have applied extensions of limitations retroactively. The leading asbestos decision is Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727, 218 Cal.Rptr. 562. That case dealt with section 340.2, effective January 1, 1980, a special statute of limitations for asbestos-related injuries, postponing accrual of the cause of action until the later of one year after discovery of the injury or disablement. In Nelson, the plaintiff was not yet disabled when he filed suit. He discovered his injury in 1976, more than one year before enactment of the statute, and did not file his complaint Nelson described its holding as not extending a limitations period, but rather, postponing its commencement. "Since there had been no extinguishment, there is no problem of an impermissible retroactive revival of a barred cause of action impairing defendants' vested rights. Indeed, we note that section 340.2 does not even really involve an extension of the prior statute's one-year period of limitation. Rather, it adopts a different standard for accrual, postponing the commencement of the running of the one-year limitation." (Nelson, supra, 172 Cal.App.3d at pp. 732-733, 218 Cal.Rptr. 562.) This is an argument that only a lawyer could love; it rests on semantics rather than on reason.

                until 1981:  within one year of enactment of the statute;  before disability;  but more than one year after discovery of the injury.  The court said the cause was not barred.  Specific language in the enacting legislation applied the statute to causes which "have not otherwise been extinguished by operation of law."  ( Nelson, supra, at p. 730, 218 Cal.Rptr. 562.)   The court in Nelson reasoned that extinguishment in this sense does not mean expiration of a limitations period but rather means a court has decided that the matter is

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