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AMENDMENT TO PERSONAL INJURY STATUTE OF LIMITATIONS
Until January, 2003, the period of limitations for personal injury actions was one year. But Code of Civil Procedure section 335.1, which went into effect on January 1, 2003, changed the period to two years. Since the amendment went into effect, two Court of Appeal decisions have considered its application.
In KRUPNICK v DUKE, 115 Cal.App.4th 1026, the Second District held, that the new statute can not be applied to resurrect actions that were already time barred on January 1, 2003 when it went into effect and in which the plaintiff was not seeking damages for injury sustained in the terrorist attacks of September 11, 2001.
In ANDONAGUI v MAY DEPARTMENT STORES 128 CA4 435, the Second District held that the new statute does apply to an action that was not time-barred on January 1, 2003 when it went into effect, even if the action accrued before it went into effect.
In MOJICA v 4311 WILSHIRE 131 CA4 1069, the Second District held that the new statute applies to an action that was pending in the federal court when it went into effect and was subsequently dismissed for procedural reasons and filed in state court.
According to the California Supreme Court's statement in AUTO EQUITY SALES v SUPERIOR COURT, 57 C2 450, a decision of the Court of Appeal binds all Superior Courts in the state, regardless of district. At this time, Krupnick, Andonagui, and Mojica are the law throughout the state. However, the Court of Appeal is not bound by Court of Appeal decisions, so it is possible that a different district, or even a different panel of the same district, will reach a contrary conclusion. It is also possible that the California Supreme Court will have occasion to consider both of these views -- that the amendment does not apply to actions that were time barred when it went into effect; that the amendment does apply to actions that were not time barred when it went into effect, even if they accrued before it went into effect.
In resolving the question of whether the new section may be applied retroactively, the following information may be useful. (See also, *link to retroactivity note)
The general rule is that statutes have prospective application only, particularly if they create rights or duties that did not previously exist. Recently, however, the California Supreme Court suggested that whether to apply a statute retroactively depends on public policy as declared by the legislature. In MYERS v PHILIP MORRIS, 28 Cal.4th 828, the Court wrote:
... Generally, statutes operate prospectively only. In the words of section 3 of California's Civil Code : "No part of [this Code] is retroactive, unless expressly so declared." ... (Evangelatos v Superior Court, 44 Cal.3d 1188 (1988)) ... The rule has been expressed in varying degrees of strength but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights . . . unless such be the unequivocal and inflexible import of the terms, and the manifest intention of the legislature. ... unless there is an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retroactive application ... a statute's retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent "some constitutional objection" to retroactivity. But a statute that is ambiguous with respect to retroactive application is construed. . . to be unambiguously prospective. (I.N.S. v. St. Cyr, 533 U.S. 289) [Internal quotes and some citations omitted]
This is quite consistent with prior decisions. In DOUGLAS v CRANSTON 58 Cal. 2d 462 (1962), the Court considered a change to an existing statute of limitations that resulted from adoption of the Uniform Disposition of Unclaimed Property Act. It said, " ... the committee report recommending adoption of the uniform act in California ... did not state that the provision would apply retroactively to claims that were already barred when the statute took effect. ... Accordingly, the California rule of construction against retroactivity is applicable here."
In DAVID A v SUPERIOR COURT, 20 Cal.App.4th 281, the California Supreme Court said that a statute lengthening a pre-existing statute of limitations on childhood sexual abuse does not revive claims that had lapsed at the time the new statute took effect unless its language specifically applies it to lapsed claims.
Recently, in MOORE v STATE BOARD OF CONTROL, 112 Cal.App.4th 371, the Court of Appeal explained:
"... in deciding whether a statute may be given retroactive application, it is not significant whether the statute is labeled substantive or procedural in nature." (Borden v Division of Medical Quality, 30 Cal.App.4th 874 (1994)) Rather, what is determinative is the effect that application of the statute would have on substantive rights and liabilities. "If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive because the legal effects of past events would be changed, and the statute will be construed to operate only in futuro unless the legislative intent to the contrary clearly appears." (Aetna Cas. & Surety Co v Ind Acc Com, 30 Cal.2d 388, (1947); Borden v Division of Medical Quality, supra) ... Therefore, where the application of a new or amended statute of limitations would have the effect of reviving an already time-barred claim, the general rule against retroactive application of the statute is applicable in the absence of a clear indication of legislative intent to the contrary.
So the first issue to be resolved is whether in writing Code of Civil Procedure section 335.1 the Legislature intended it to be applied retroactively. I can't help remembering the words of Justice Oliver Wendell Holmes, who said that in construing legislation, the court is more interested in determining what the statute means than in determining what the Legislature meant when enacting it. More on this below.
Originally, the language of the statute and the preamble accompanying its enactment said much about victims of the terrorist attacks of September 11, 2001 and how unfair it would be for them to lose their cause of action. It even specified that the statute of limitations on their actions is two years rather than one, as it would have been under the old statute. In the latest version of the statute, that language was removed from section 335.1 and now appears in section 340.10, which specifically provides that section 335.1 applies to any action brought by a victim of the 9/11 terrorist attack, "regardless of whether that action lapsed or was otherwise barred by time under California law predating the passage of this section."
A general rule of statutory construction provides that if the language of a statute creates a specific exception to its provisions, no other exceptions are implied or are to be inferred. Putting this together with the general rule that makes a statute prospective only unless the legislature expresses a contrary intent, it can certainly be argued that the statute of limitations created by section 335.1 does not apply to actions that were already time-barred when it went into effect, with the single exception of an action brought by a victim of the 9/11 terrorist attack. Indeed, that was the reasoning of Krupnick.
Prior to Krupnick, the only published California decision to consider the question was RODRIGUEZ v SUPERIOR COURT, 108 CA4 301. The court ducked the issue, however, concluding that under the facts of the case, it did not have to be resolved.
Even if other decisions should hold that the legislature meant section 335.1 to resurrect time-barred actions brought by plaintiffs who are not terrorist victims, the Constitution may prevent the statute from being given that application. In WESTERN SECURITY BANK V SUPERIOR COURT, 15 Cal.4th 232 (1997), the California Supreme Court said, "... when the Legislature clearly intends a statute to operate retrospectively, we are obliged to carry out that intent unless due process considerations prevent us." (Italics added)
In YOUNG v HAINES, 41 Cal. 3d 883 (1986), the California Supreme Court said, "A statute shortening the statute of limitations may be interpreted prospectively to avoid constitutional problems which would attend retroactivity." Presumably those constitutional problems revolve around due process and its possible violation by taking away a cause of action that plaintiff already had. Lengthening a statute of limitations could have the effect of imposing liability on a defendant after the possibility of that liability had been eliminated and could have the same due process implications.
In BRENTON v METABOLIFE, 116 Cal.App.4th 679, T/AT 4/04, which was decided before Andonagui, the Court of Appeal pointed out that applying a procedural statute to an action that arose before it went into effect is not a retrospective application, because although it draws on facts existing prior to its enactment, it prescribes the procedure to be followed in the future.
Other cases that may be relevant to the issues are:
Mudd v McColgan (1947) 30 Cal. 2d 463
Evelyn. Inc. v California Emp. Stab. Com. (1957) 48 Cal. 2d 588
Douglas Aircraft Co. v Cranston (1962) 58 Cal. 2d 462
Resolute Ins. Co. v MuniCipal Court (1970) 11 Cal. App. 3d 1006
Liebig v Superior Court (1989) 209 Cal. App. 3d 828
Bartman v Estate of Bartman (1978) 83 Cal.. App. 3d 780
Carr v State of California (1976) 58 Cal. App. 3d 139
Lent v Doe, 40 Cal. App. 4th 1177
Society of Cal. Pioneers v Baker, 43 Cal. App. 4th 774
Hellinger v Farmers Group. Inc., 91 Cal. App. 4th 1049
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