Cardenas v. Horizon Senior Living ( 2022 )

Filed 5/19/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PAUL CARDENAS et al., 2d Civ. No. B312091
(Super. Ct. No. 20CV0138)
Plaintiffs and Appellants, (San Luis Obispo County)
v.
HORIZON SENIOR LIVING,
INC.,
Defendant and Respondent.
The victim of a felony has an extended statute of
limitations in which to bring an action for personal injury or
wrongful death against the person convicted of that felony. (Code
Civ. Proc., § 340.3.)1 Here we hold this extended statute of
limitations does not apply to the employer of the felon in an
action based on the doctrine of respondeat superior. We also hold
that Labor Code section 2802, which allows an employee to be
indemnified by his or her employer, does not apply to third
parties. We affirm.
All statutory references are to the Code of Civil Procedure
1
unless otherwise stated.
FACTS
Mauricio Cardenas was a resident of Horizon Senior
Living, Inc., doing business as Manse on Marsh (Horizon).
Cardenas suffered from dementia. On many occasions, Cardenas
left Horizon without knowledge of the staff. On December 21,
2014, on his last unsupervised foray away from the facility, he
wandered for several miles and was hit by a car and killed.
Christopher Skiff was the director of Horizon. Gary Potts
was the manager. Skiff was convicted of felony elder abuse and
manslaughter in Cardenas’s death with the special allegation
that the elder abuse was likely to cause great bodily injury or
death. Potts was convicted of felony elder abuse. Horizon was
not convicted of any crime.
Paul and Samuel Cardenas, heirs of Mauricio Cardenas,
(Plaintiffs) brought this action against Horizon, Skiff and Potts,
alleging negligence, willful misconduct, elder abuse, and wrongful
death. The first amended complaint alleges that Horizon was not
licensed to care for dementia patients; that defendants failed to
comply with the standard of care; and that defendants knew or
should have known the risk of injury for failure to comply with
the standard of care.
Horizon demurred to the complaint on the ground that it is
barred by the two-year statute of limitations. (§ 335.1.)
Plaintiffs concede that more than two years have passed since
they filed their complaint despite the expiration of the two-year
statute of limitations. Plaintiffs argued, however, that Skiff’s
and Potts’s felony convictions revived the statute of limitations
under section 340.3. Plaintiffs claimed that because Horizon was
liable under the doctrine of respondeat superior, the statute of
limitations was also revived as to Horizon.
2.
Horizon replied that because it had not been convicted of
any crime, section 340.3 did not revive the statute of limitations
as to it.
The trial court agreed with Horizon and sustained its
demurrer without leave to amend. Plaintiffs appeal the order
sustaining the demurrer.
DISCUSSION
I
Appealability
Horizon contends an order sustaining a demurrer is not
appealable.
It is well known that an order sustaining a demurrer is not
appealable. (Hill v City of Long Beach (1995) 33 Cal.App.4th
1684, 1695.) An appeal can only be taken after the court enters
judgment on the order sustaining the demurrer. (Ibid.)
Nevertheless, in the interest of judicial economy, we may
construe the order sustaining the demurrer without leave to
amend as a final appealable judgment. (Melton v. Boustred
(2010) 183 Cal.App.4th 521, 527-528.) We elect to do so here.
II
Standard of Review
The function of a demurrer is to test whether, as a matter
of law, the facts alleged in the complaint state a cause of action
under any legal theory. (Intengan v. BAC Home Loans Servicing
LP (2013) 214 Cal.App.4th 1047, 1052.) We assume the truth of
all facts properly pleaded, as well as facts of which the trial court
properly took judicial notice. (Ibid.) But we do not assume the
truth of contentions, deductions, or conclusions of law. (Ibid.)
Our review of the trial court’s decision is de novo. (Ibid.)
3.
We review the trial court’s decision to allow an amendment
to the complaint for an abuse of discretion. (Fontenot v. Wells
Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 273-274,
disapproved on other grounds in Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919, 939.) Where there is no
reasonable possibility that plaintiff can cure the defect with an
amendment, sustaining a demurrer without leave to amend is not
an abuse of discretion. (Id. at p. 274.)
III
Statute of Limitations
Section 335.1 provides a two-year statute of limitations for
injury or wrongful death. Plaintiffs do not contest that statute of
limitations has expired.
Section 340.3, subdivision (a) provides: “Unless a longer
period is prescribed for a specific action, in any action for
damages against a defendant based upon the defendant’s
commission of a felony offense for which the defendant has been
convicted, the time for commencement of the action shall be
within one year after judgment is pronounced.”
Plaintiffs filed their original complaint almost six years
after Cardenas’s death. We assume, for purposes of this appeal
only, that the complaint against Skiff and Potts was timely under
section 340.3. But Horizon is another matter.
Section 340.3, subdivision (a) provides for a longer statute
of limitations in an “action for damages against a defendant
based upon the defendant’s commission of a felony offense for
which the defendant has been convicted.” The action against
Horizon is not based on Horizon’s commission of a felony offense
for which Horizon has been convicted. Section 340.3 does not
apply to Horizon.
4.
Plaintiffs point out that actions for respondeat superior
have no statute of limitations. But there is a statute of
limitations on actions for personal injury and wrongful death
against defendants who, like Horizon, have not been convicted of
a felony. It is two years. (§ 335.1.)
Plaintiffs’ reliance on the Victims’ Bill of Rights embodied
in article I, section 28 of the California Constitution is misplaced.
Under that section, victims have the right to seek restitution
“from the persons convicted of the crimes causing the losses they
suffer.” (Id., subd. (b)(13)(A).) Horizon has not been convicted of
a crime.
IV
Labor Code Section 2802
Plaintiffs contend Horizon may be liable under Labor Code
section 2802.
Labor Code section 2802, subdivision (a) provides: “An
employer shall indemnify his or her employee for all necessary
expenditures or losses incurred by the employee in direct
consequence of the discharge of his or her duties, or of his or her
obedience to the directions of the employer, even though
unlawful, unless the employee, at the time of obeying the
directions, believed them to be unlawful.”
Labor Code section 2802 allows an employee to be
indemnified by his or her employer. It does “not provide access to
the employer’s or its insurer’s pocketbook through a third party
suit against the employee.” (Boyer v. Jensen (2005) 129
Cal.App.4th 62, 74.)
Plaintiffs have no cause of action based on Labor Code
section 2802.
5.
The concurring opinion need not be concerned with out-of-
state authority. California authority is more than sufficient to
resolve the issue presented. We are pleased, however, that the
out-of-state authorities cited by our colleague would agree with
our result.
DISPOSITION
The judgment is affirmed. Costs are awarded to
respondent.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
I concur:
YEGAN, J.
6.
TANGEMAN, J., Concurring:
I concur. Because plaintiffs rely heavily on out-of-state
authorities in discussing this issue of first impression in
California, I believe a brief discussion of those authorities is
warranted.
The out-of-state authorities cited by plaintiffs hold that the
statute of limitations for respondeat superior liability is the same
as for the individual tortfeasor. But with the exception of D.M.S.
v. Barber (Minn. 2002) 645 N.W.2d 383, the extended statutes of
limitations apply where they refer to particular types of actions
rather than particular types of defendants. See Kocsis v.
Harrison (Neb. 1996) 543 N.W.2d 164; Lourim v. Swensen (Or.
1999) 977 P.2d 1157; Dunn v. Rockwell (W.Va. 2009) 689 S.E.2d
255. This distinction warrants the conclusion that Code of Civil
Procedure section 340.3 applies only to defendants convicted of a
felony and not to their employers.
The court in Doe v. BSA Corp. (Conn. 2016) 147 A.3d 104reaches the same conclusion. In applying an extended statute of
limitations for sexual abuse claims to the employing
organization, the court drew a distinction between statutes “not
concerned with particular types of defendants, but with providing
recovery for a particular type of injury.” (Id. at p. 122.) The court
noted that “almost all of the courts that have concluded that an
extended statute of limitations for claims involving childhood
sexual abuse does not apply to claims against nonperpetrators
have been confronted with statutes that expressly limit their
application to claims against perpetrators. [Citations.]” (Id. at p.
123, fn. 21.)
Because “section 340.3 was enacted as part of a statutory
scheme to implement Proposition 8’s constitutional requirement
that “‘“persons who suffer losses as a result of criminal activity
shall have the right to restitution from the persons convicted of
the crimes for losses they suffer”’” (Guardian North Bay, Inc. v.
Superior Court (2001) 94 Cal.App.4th 963, 973) and expressly
limits its reach to convicted defendants, I concur in the result.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
2.
Ginger E. Garrett, Judge
Superior Court County of San Luis Obispo
______________________________
James McKiernan Lawyers and James McKiernan for
Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest
Slome, Rueben B. Jacobson and Tracy D. Forbath for Defendants
and Respondents.