Metropolitan News-Enterprise


Thursday, February 29, 2024


Page 3


Ninth Circuit:

Limitations Period for Survival Action Is Not Extended

Panel Rejects Contention That Statute Did Not Start Running Until Decedent Would Have Reached Age 18


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has held, applying California law, that the limitations period for bringing a survival action is not extended based on the decedent not having reached the age of majority at the time the cause of action arose.

On April 2017, Isabella (“Bella”) Herndon, a minor, viewed a motion picture, “13 Reasons Why,” via Netflix’s streaming service. It depicts a suicide and, motivated by that film, she killed herself.

Four years later, her father, John Herndon, brought a putative class action against Netflix on the theories of strict liability—based on a failure to warn of the risks of viewing the film—and negligence.

District Court Judge Yvonne Gonzalez Rogers dismissed the action with prejudice, holding that it was time-barred under California Code of Civil Procedure §366.1. That section provides:

“If a person entitled to bring an action dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced before the expiration of the later of the following times:

“(a) Six months after the person’s death.

“(b) The limitations period that would have been applicable if the person had not died.”

CCP §352

The limitations period that would have applied to Isabella Herndon, the plaintiffs asserted on appeal, would not have begun running until her 18th birthday under Code of Civil Procedure §352. Applying that section, they argued, the action was timely.

A three-judge panel—composed of Judges Bridget Shelton Bade, Eric D. Miller, and Lawrence VanDyke—affirmed the dismissal in a memorandum opinion filed Tuesday, saying:

“Plaintiffs’ argument fails because the ordinary meaning of the phrase ‘limitations period’ is distinct from the ordinary meaning of the phrase ‘tolling period.’ ‘Limitations period’ ordinarily means the statutorily-defined time limit for bringing a claim based on the nature of the claim and the date of accrual….In contrast, a ‘tolling statute’ suspends or interrupts the limitations period in various situations.”

Judges’ Prediction

The judges added:

“We… predict that the California Supreme Court would interpret the phrase ‘limitations period’ to mean the statutorily-defined time limit for bringing a claim based on the nature of the claim and the date of accrual, without inclusion of a tolling period….And because actions for the death of an individual caused by a wrongful act or neglect of another must be brought ‘[w]ithin two years,’…John Herndon’s claims, which were brought over four years after Bella died, were appropriately dismissed as time-barred.”

The decedent’s two brothers, James Michael Herndon and Tyler Phillip Herndon, minors, also sued Netflix, alleging wrongful death. They lack standing under California law, the opinion says, explaining:

“When a decedent has no spouse, domestic partner, issue, or grandchild, only immediate successors under California’s probate code may bring a wrongful death action….Under California’s probate code, the immediate successor if a decedent lacks a spouse, domestic partner, or issue, is ‘the decedent’s parent or parents equally,’ if alive, not the decedent’s siblings….Therefore, because Bella’s father is still alive, the district court correctly held that [the siblings] lacked standing to bring a wrongful death action.”

Netflix had removed the case from the Santa Clara Superior Court based on diversity of citizenship.

The case is Estate of Isabella “Bella” Herndon, 22-15260.


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