Liebig v. Superior Court

• Decision Date: 14 April 1989
• Docket Number: No. A041742,A041742
• Citation: 209 Cal.App.3d 828,257 Cal.Rptr. 574
• Court: California Court of Appeals Court of Appeals
• Parties: August LIEBIG, Petitioner, v. The SUPERIOR COURT of Napa County, Respondent, Lisa LIEBIG, Real Party in Interest.

Page 574

257 Cal.Rptr. 574

209 Cal.App.3d 828

August LIEBIG, Petitioner, v. The SUPERIOR COURT of Napa County, Respondent, Lisa LIEBIG, Real Party in Interest.

No. A041742.

Court of Appeal, First District, Division 5, California.

April 14, 1989.

Review Denied June 22, 1989.

James E. Prosser, Babin, Seeger & Byrne, Santa Rosa, for petitioner.

No appearance for respondent.

Diane M. Price, Douglas N. Akay, Coombs & Dunlap, Napa, for real party in interest.

KING, Associate Justice.

In this case we hold that the Legislature has the power to retroactively extend a civil statute of limitations to revive a cause of action time-barred under the former limitations period.

Petitioner August Liebig is the defendant in a suit filed by his granddaughter, real party Lisa Liebig, seeking tort damages for alleged sexual molestation. August demurred to Lisa's complaint on the ground it was filed beyond the applicable limitations period. Lisa responded that Code of Civil Procedure section 340.1, enacted in 1986, extended the limitations period for sexual-molestation torts and expressly revived causes of action which were time-barred under the former period of limitations but timely under the extension. The trial court rejected August's contention that the Legislature could not effect such a revival, and overruled August's demurrer. August sought review by extraordinary writ. We summarily denied the petition, but the Supreme Court granted review and retransferred the matter with directions to issue the alternative writ. Having done so and heard oral argument, we again deny the petition.

The complaint sets forth causes of action for negligence, assault and battery, and intentional and negligent infliction of emotional distress. All causes of action arise from Lisa's allegations that August sexually molested her while acting as her babysitter between 1971 and 1980, while she was between the ages of five and fourteen. Lisa reached the age of majority on August 7, 1984. According to the law then in effect, the applicable statute of limitations for the torts committed during her minority was one year from the date of her attaining the age of majority, or August 7, 1985. (Code Civ.Proc., §§ 340, subd. (3); 352, subd. (a)(1).) ¹ As of that date Lisa had filed no complaint against August.

In September 1986, the Legislature enacted Assembly Bill No. 1445, which added section 340.1. (Stats.1986, ch. 914, pp. 946-947.) The new statute extended the statute of limitations to three years from the age of majority for any lawsuit based on the sexual molestation of a child under 14 by "a household or family member." Section 340.1 was effective January 1, 1987. Subdivision (e) of the statute provided that the new three-year period would apply not only to actions pending as of January 1, 1987, but to "[a]ny action commenced on or after January 1, 1987, including any action which would be barred by application of the period of limitation applicable prior to January 1, 1987." (Emphasis added.) Lisa filed her complaint August 5, 1987, well past the one-year period but just within the new three-year limit.

By its terms section 340.1 expressly revives time-barred causes of action. August argues that to this extent section 340.1 is unconstitutional. He contends the legislative power to extend a civil limitations period may be exercised only prior to the period's expiration; once the limitations period expires, so does the legislative prerogative of extension. In essence, August contends the enactment of section 340.1 has deprived him of his vested right to the repose of Lisa's cause of action under the previous one-year period.

Were this a criminal case the issue would be simple: the time within which a prosecution may be brought may only be extended before the former limitations period expires. (People v. Sample (1984) 161 Cal.App.3d 1053, 1057, 208 Cal.Rptr. 318; Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 106 Cal.Rptr. 516.) The rationale for this rule was recently restated in People v. Sweet (1989) 207 Cal.App.3d 78, 84, 254 Cal.Rptr. 567: "A statute of limitations in a criminal case is a substantive, rather than procedural, right ... [and t]he court has no authority to proceed in a criminal case once the statutory period has run." [Citing People v. Superior Court (Jennings) (1986) 183 Cal.App.3d 636, 645, 228 Cal.Rptr. 357, disapproved on other grounds in People v. Morris (1988) 46 Cal.3d 1, 18, 249 Cal.Rptr. 119, 756 P.2d 843.] The policy underlying the rule was aptly stated by Judge Learned Hand: "Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease on 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." (Falter v. United States (2d Cir.1928) 23 F.2d 420, 425-426.)

In the civil arena the law of the "chase" is less clear. Federal law has long held that unless the passage of the statute of limitations creates a prescriptive property right, such as title in adverse possession, the Legislature is free to revive a cause of action after the statute of limitation has expired. (Campbell v. Holt (1885) 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483.) In Chase Securities Corp. v. Donaldson (1945) 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628, the United States Supreme Court reaffirmed Campbell and ruled that revival of a personal cause of action which did not involve the creation of title did not offend notions of due process. "Statutes of limitation find their justification in necessity and convenience rather than in logic.... They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay.... Their shelter has never been regarded as ... a 'fundamental' right ... the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control." (325 U.S. at p. 314, 65 S.Ct. at p. 1142.)

California law is "unsettled." (3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 332, p. 362.) It is clear that in contrast to criminal cases, statutes of limitations in civil matters are procedural, not substantive. (3 Witkin, op. cit., § 308, p. 337.) "Limitations periods represent a public policy about the privilege to litigate; they relate to matters of procedure, not to substantial rights." (Talei v. Pan American World Airways (1982) 132 Cal.App.3d 904, 909, 183 Cal.Rptr. 532.) Beyond this distinction the issue of revival of a time-barred civil cause of action is somewhat clouded.

August relies on a number of cases which appear to stand for the proposition that an enlargement of limitations must occur before the previous period expires. In Chambers v. Gallagher (1918) 177 Cal. 704, 171 P. 931, the Supreme Court rejected Campbell and ruled that the Legislature could not enact a new limitations period which effectively revived a cause of action after the original period had lapsed. The court reached a similar result, without substantial discussion, in Mudd v. McColgan (1947) 30 Cal.2d 463, 183 P.2d 10, and Evelyn, Inc. v. California Emp. Stab. Com. (1957) 48 Cal.2d 588, 311 P.2d 500. All three of these cases, however, involved a limitations period for a liability created by statute, such as tax liability, and not by the common law. Furthermore, Mudd contains language suggesting that a lengthened limitations period is prospective only unless the statute provides otherwise, suggesting the Legislature does have the power to expressly revive a barred claim. (30 Cal.2d at pp. 467-468, 183 P.2d 10.)

In Douglas Aircraft Co. v. Cranston (1962) 58 Cal.2d 462, 24 Cal.Rptr. 851, 374 P.2d 819, the Supreme Court was asked to embrace the federal rule of Campbell and Chase Securities, and to limit Chambers 's rule against revival "to cases in which a prescriptive title has been acquired or the liability was created by statute." (58 Cal.2d at p. 464, 24 Cal.Rptr. 851, 374 P.2d 819, citation omitted.) The court sidestepped the issue of revival because the new limitations period at issue had not been made expressly retroactive to apply to time-barred actions. (Id. at p. 465, 24 Cal.Rptr. 851, 374 P.2d 819.) To contribute to the confusion, Douglas Aircraft also notes, citing Mudd, that "It has been held that unless the statute expressly provides to the contrary any such enlargement [of the limitations period] applies to matters pending but not already barred." (Ibid., emphasis added.) In Singer Co. v. County of Kings (1975) 46 Cal.App.3d 852, 121 Cal.Rptr. 398, and Carr v. State of California (1976) 58 Cal.App.3d 139, 129 Cal.Rptr. 730, which also involved claims based on statutory rights, the Courts of Appeal simply followed Mudd and dicta in Douglas Aircraft. (58 Cal.2d at pp. 465-466, 24 Cal.Rptr. 851, 374 P.2d 819.)

Lisa contends that because these decisions involve limitations periods for statutorily created rights, such as rights to collect taxes or tax refunds or rights to file a government tort claim, they are inapposite to the revival of causes of action for common-law torts. She relies primarily on Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727, 218 Cal.Rptr. 562, a decision involving the extension of the statute of limitations for asbestosis to claims already barred under the previous limitations period. After observing that a statute of limitations is procedural, and therefore not subject to the general rule against statutory retroactivity (Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253, 1257, 207 Cal.Rptr. 241), the Nelson court found "unpersuasive" defendants' claim "that by the mere...