Saliter v. Pierce Brothers Mortuaries

• Decision Date: 24 May 1978
• Citation: 81 Cal.App.3d 292,146 Cal.Rptr. 271
• Court: California Court of Appeals Court of Appeals
• Parties: Lee R. SALITER, Plaintiff and Appellant, v. PIERCE BROTHERS MORTUARIES, a corporation, Defendant and Respondent. Civ. 51694.

Page 271

146 Cal.Rptr. 271

81 Cal.App.3d 292

Lee R. SALITER, Plaintiff and Appellant, v. PIERCE BROTHERS MORTUARIES, a corporation, Defendant and Respondent.

Civ. 51694.

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

May 24, 1978.

Hearing Denied July 20, 1978.

Wallerstein, Miller, Walker & Bilford and David R. Bilford, Los Angeles, for plaintiff and appellant.

Waters, McCluskey & Corcoran and Fritz B. Hax, Los Angeles, for defendant and respondent.

STEPHENS, Associate Justice.

This is an appeal from an order of dismissal entered after the trial court sustained defendant's demurrer to plaintiff's second amended complaint without granting leave to amend. The trial judge determined that plaintiff's complaint showed that his action for personal injuries was barred by the statute of limitations. (Code Civ.Proc., § 340, subd. 3.) We agree.

The material facts as contained within the second amended complaint are averred as follows: On October 23, 1974, plaintiff's father died. The circumstances of death are not disclosed by the complaint, although plaintiff's brief states that the father "died at the wheel of his automobile." The complaint vaguely suggests that the Los Angeles county coroner had the body removed to defendant's mortuary facilities. This was done pursuant to an alleged oral contract between defendant and the county coroner, entered on or about January 1971, whereby defendant agreed to act as an "on call mortuary" for unclaimed recently deceased persons. Under the contract, defendant agreed either to notify the decedent's next of kin within four hours or report its inability to do so to the coroner's notification desk. Plaintiff asserts that defendant failed to comply with the notification requirements "in a reasonable and proper manner" and therefore breached its contract. As a result, plaintiff learned of his father's fate only after four days of personal investigation. Because of this delay, the funeral and burial services could not be conducted in accordance with the religious and social customs of the family and their community. Plaintiff avers that, upon realizing that his father was dead, that the body "was unclaimed for an unreasonable period of time," and that "no customary funeral or burial services could be held," he suffered "great nervous shock, great mental anguish and humiliation, all of which was, or should have been foreseeable to defendants . . . ." As a result of defendant's breach, plaintiff had to undergo costly medical examinations and treatment.

On April 13, 1976, plaintiff Saliter filed his original complaint to recover for personal injuries resulting from defendant's alleged breach of contract. ¹ He asserts that the contract was "expressly made for the benefit of the plaintiff" and was made "for the specific purpose of promptly notifying the next-of-kin of the deceased." He therefore seeks to be considered a third party beneficiary under the alleged contract.

As plaintiff admits, the statute of limitations for negligent infliction of personal injuries is one year, notwithstanding that the duty which is alleged to have been breached arose ex contractu. (Code Civ.Proc., § 340, subd. 3; Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 988, 120 Cal.Rptr. 312.) Plaintiff filed his complaint in April 1976 over 17 months after the alleged breach. Nevertheless, plaintiff avers that until he underwent psychiatric treatment, beginning in December 1975, he could not have reasonably discovered that defendant's alleged breach was the cause of his condition. The second amended complaint alleges that at the time of the alleged breach and "for several months thereafter, plaintiff was unaware that any of his physical or mental problems were being caused by defendants' alleged breach of contract." In November 1975, plaintiff watched a television interview of a clinical psychiatrist which included a discussion of the symptoms of chronic depression. After viewing this program, plaintiff "became aware that he may have suffered from said malady." In December, he began seeing a psychiatrist and receiving treatment including medication and "verbal analysis." The complaint avers the following circumstances surrounding plaintiff's discovery of the cause of action: "During the course of plaintiff's above-described treatment, the doctor was able to elicit that plaintiff was suffering from complete withdrawal resulting from a state of depression. During this time it was discovered, through said treatment and analysis, that a substantial contributive factor in plaintiff's mental state and its resultant physical manifestations was the herein alleged negligent breach of contract by the defendant."

The complaint fails to state sufficient facts to avoid the apparent bar imposed by the statute of limitations.

The key issue in this appeal is whether the plaintiff's complaint shows that the action is barred by the appropriate statute of limitations. We agree with the determination of the trial court that the action is so barred.

Personal injury cases based upon negligent breach of contract are governed by the one-year statute of limitations prescribed by Code of Civil Procedure section 340, subdivision 3. (Allred v. Bekins Wide World Van Services, supra, 45 Cal.App.3d 984, 988, 120 Cal.Rptr. 312; Howe v. Pioneer Mfg. Co. (1968) 262 Cal.App.2d 330, 339, 68 Cal.Rptr. 617.) In both tort and contract cases, the statute of limitations generally begins to run upon the occurrence of the last fact essential to the cause of action. That a plaintiff is unaware of the cause of action or the identity of the wrongdoer does not delay the running of the statute. (See Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 187, 98 Cal.Rptr. 837, 491 P.2d 421; Howe v. Pioneer Mfg. Co., supra, 262 Cal.App.2d at p. 340, 68 Cal.Rptr. 617; Rubino v. Utah Canning Co. (1954) 123 Cal.App.2d 18, 27, 266 P.2d 163.) In the present case, both the alleged breach of contract and the injury occurred in October 1974 approximately 17 months before plaintiff filed his complaint. It therefore appears from the face of the complaint that plaintiff's action is barred.

Plaintiff, however, has sought to bring himself within the operation of the "discovery rule" a judicially recognized exception to the strict operation of the statute of limitations. In a growing variety of cases, courts have held that the statute of limitations does not begin to run until the plaintiff discovered or had notice of all facts which are essential to the cause of action. (See Warrington v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 564, 569-570, 80 Cal.Rptr. 130; Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 314-315, 132 Cal.Rptr. 860, and cases cited therein.) This exception is based on the notion that statutes of limitations are intended to run against those who fail to exercise reasonable care in the protection and enforcement of their rights; therefore, those statutes should not be interpreted so as to bar a victim of wrongful conduct from asserting a cause of action before he could reasonably be expected to discover its existence. (See Howe v. Pioneer Mfg. Co., supra, 262 Cal.App.2d 330, 346, 68 Cal.Rptr. 617; Warrington v. Charles Pfizer & Co., supra, 274 Cal.App.2d at p. 569, 80 Cal.Rptr. 130.) There appears to be a strong trend toward application of the discovery rule to personal injury actions. In such cases, where the injury is inflicted without perceptible trauma and the victim is unaware of the fact of injury or its cause, the statute of limitations does not begin to run until the plaintiff discovers or reasonably should discover those facts. (Huysman v. Kirsch (1936) 6 Cal.2d 302, 311-313, 57 P.2d 908 (medical malpractice); Arndt v. Worker's Comp. Appeals Bd. (1976) 56 Cal.App.3d 139, 149, 128 Cal.Rptr. 250 (delayed discovery of industrially related cause of death); G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25, 122 Cal.Rptr. 218 (injuries resulting from use of prescribed drug); Allred v. Bekins Wide World Van Services, supra, 45 Cal.App.3d 984, 989-991, 120 Cal.Rptr. 312 (personal injuries resulting from negligent breach of contract to ship personal property); Warrington v. Charles Pfizer & Co., supra, 274 Cal.App.2d at pp. 567-571, 80 Cal.Rptr. 130 (injuries resulting from use of prescribed drug).)

In order to invoke this special defense to the statute of limitations, the plaintiff must specifically plead facts which show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. (G. D. Searle & Co. v. Superior Court, supra, 49 Cal.App.3d 22, 26, 122 Cal.Rptr. 218; Bradler v. Craig (1969) 274 Cal.App.2d 466, 472, 79 Cal.Rptr. 401.) Mere conclusory assertions that delay in discovery was reasonable are insufficient and will not enable the complaint to withstand general demurrer. (Bradler v. Craig, supra, at p. 472, 79 Cal.Rptr. 401.)

An analysis of the second amended complaint reveals that plaintiff has failed to state facts showing that discovery could not have been accomplished at an earlier date. Plaintiff concedes in his brief that he was quickly aware of both defendant's alleged breach of duty and plaintiff's resulting injury. Nevertheless, he contends that his emotional disturbance kept him from perceiving the causal link between the two. We believe, however, that plaintiff's depression and withdrawal are not sufficient basis to excuse late discovery of his cause of action. It is unfortunately all too common for persons to injure one another; it is likewise common for depression and other psychological side-effects to accompany such injuries. Yet even depressed persons are required to exercise reasonable diligence in the protection of their rights at least so long as they remain able to be responsible for their acts. (See Phillips v. Standard Accident Ins. Co. (1960) 180 Cal.App.2d 474, 481-482,...