Metropolitan News-Enterprise


Thursday, April 14, 2005


Page 1


Extended Statute of Limitations Held Applicable to Pending Claims


By KENNETH OFGANG, Staff Writer/Appellate Courts


Legislation extending the statutory limitations period from one year to two years in personal injury cases applies to any claim as to which the one-year period had not expired when the new law took effect, the Court of Appeal for this district ruled yesterday.

Div. Five reinstated Bertha Andonagui’s slip-and-fall suit against May Department Stores Company. Andonagui claims she tripped on a metal rack that had been left on the floor at the company’s Montebello store.

Los Angeles Superior Court Judge Rodney Nelson dismissed the action, ruling that the suit was untimely. Andonagui filed her action on April 6, 2004, more than a year after the Dec. 15, 2002 accident but within the two-year period set forth in Code of Civil Procedure Sec. 335.1

That statute was enacted in 2002 and took effect Jan. 1, 2003. The prior statute of limitations, Sec. 340(3), generally required that personal injury actions be filed within one year, and Nelson ruled that provision applied.

Longstanding Rule

But Justice Richard Mosk, writing for Div. Five, said the longstanding rule that an expanded limitations period applies to any claim not time-barred as of the effective date of the legislative amendment makes Andonagui’s action timely.

The justice rejected the argument that by including a provision in the legislation reviving lapsed claims for damages suffered as a result of the Sept. 11, 2002 terrorist attacks, lawmakers intended to preclude retroactive application of the law to claims such as the plaintiff’s.

“Application of section 335.1 to this not, as defendant argues, a matter of retroactivity...,” the justice wrote, since the time to sue had not lapsed as of Jan. 1, 2003.

Mosk distinguished Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, which held Sec. 335.1 inapplicable to a suit filed in January 2003 for injuries sustained just under two years earlier. Since the one-year period had expired before Sec. 335.1 took effect, and since the Legislature did not intend to apply the statute retroactively, the claim was time-barred, the Krupnick court reasoned.

“Here, by contrast, plaintiff allegedly sustained her injuries on December 15, 2002, and her claim was but 17 days old and not time-barred when section 335.1 became effective on January 1, 2003,” Mosk wrote. “Thus, unlike the plaintiff in Krupnick or the victims of the terrorist attacks of September 11, 2001 ñ whose claims would have been barred as of September 11, 2002 (i.e., before section 335.1 became effective) ñ plaintiff’s action did not have to be revived through retroactive application of section 335.1.

Federal Ruling Rejected

Mosk took issue with a 2003 decision by a federal magistrate judge in the Central District of California, who concluded that Sec. 335.1 does not extend the time to sue n a claim that accrued prior to Jan. 1, 2003. The magistrate judge did not consider prior decisions of the California Supreme Court that are controlling, Mosk said.

In an unpublished portion of his opinion, Mosk said the trial judge was correct in dismissing a second cause of action, for failure to warn of a dangerous condition under Civil Code Sec. 846. That section only applies to use of land for recreational purposes, the justice explained, noting that the plaintiff did not brief the issue in the trial court or on appeal.

Attorneys on appeal were Thomas Pham Jr of Mouzoon & Heying for the plaintiff and Lisa D. Collinson and Melinda Hedin of Forgey & Hurrell, LLP.

The case is Andonagui v. May Department Stores Company, B176544.


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