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Olivas v. Weiner

Court of Appeal of California, Second Appellate District, Division Two

September 29, 1954

Civ. No. 20230


 [*598]  [**477]   This is an action for damages for malpractice growing out of defendant's attendance upon plaintiff's birth on December 1, 1931. Plaintiff filed his complaint on June 23, 1953. Defendant's demurrer was sustained without leave to amend. Plaintiff appeals from the ensuing judgment of dismissal.

This case turns upon the interpretation and application of section 29 of the Civil Code. 1 Plaintiff contends that the six-year limitation specified in the amendment, within which to bring such an action, does not apply to him since it was added some 10 years after he was [***2]  born, at which time the alleged negligent injury occurred; that it applies only to causes of action that arose after the amendment became effective. Defendant, however, argues that it was the purpose and intention of the Legislature to fix a six-year statute of limitation within which to bring such a suit and that it  [**478]  applies to  [*599]  both future and accrued causes of action. Hence the time limitation applies to plaintiff's case and his cause of action is barred. Defendant's position must be sustained.

 [***3]   CA(1)(1)  ] Fixing the time within which particular rights must be asserted is a matter of legislative policy. In pursuance of such policy the Legislature in 1941 amended section 29 to provide that an action authorized by that section, such as the instant case, must be brought within six years from the date of the birth of the child.  In this connection it should be noted that in July, 1939, the District Court of Appeal, in Scott v. McPheeters, 33 Cal.App.2d 629 [92 P.2d 678, 93 P.2d 562], sustained the right of an 11-year-old child to maintain an action such as this and stated that "The statute of limitations does not run against such an action until the child arrives at the age of majority [p. 631]." It was at the next regular session of the Legislature that the six-year limitation was added to the section.  CA(2)(2)  The problem was undoubtedly brought into legislative focus by the decision in the Scott case, supra, and that decision "may properly be considered as bearing upon the legislative intent and purpose in the adoption" of the amendment. ( Clements v. T. R. Bechtel Co., 43 Cal.2d 227, 231 [273 P.2d 5].)  CA(3)(3)  The very fact that the section was amended "demonstrated an intent [***4]  to change the pre-existing law." ( People v. Weitzel, 201 Cal. 116, 118 [255 P. 792, 52 A.L.R. 811].) The Legislature undoubtedly concluded that to permit such an action to be filed up to 22 years after the child's birth, i.e., within one year after it reached majority, placed an unreasonable burden upon the defendant to locate witnesses and to produce evidence in defense of the charges after the lapse of such a long period. The Legislature decided that six years was a reasonable time within which to bring such an action.

 CA(4)(4)  The question then arises, does the amendment apply to causes of action that had already accrued? The answer must be in the affirmative since the reasons for such a time limitation are even more cogent, because in all such cases more than six years would have elapsed between the accrual of the cause of action and the running of the statute. In the instant case such period was almost 16 years. Thus the problem of locating witnesses and assembling evidence would be correspondingly more difficult.  Here, however, if plaintiff's position is to be sustained the defendant would be required to defend a charge of malpractice which occurred  [*600]  more than [***5]  21 1/2 years ago. The Legislature immediately recognized the seriousness of the problem following the Scott v. McPheeters decision and proceeded to correct the situation. In the light of these circumstances it is inconceivable that the Legislature intended that the six-year limitation which it added to section 29 should apply only to persons born after the enactment of the amendment and thus allow the problem with respect to accrued causes to become more acute by lapse of time. If six years was a reasonable time within which to sue for future injuries (and it undoubtedly was), it was all the more ample for those that had previously occurred.  CA(5)(5)  It should therefore apply to both situations, for such construction is in harmony with the rule that ] "Where a statute is susceptible of two constructions, the one which leads to the more reasonable result will be followed." ( Clements v. T. R. Bechtel Co., supra.)  CA(6)(6)  It has repeatedly been held that ] the Legislature may reduce a statute of limitations and that the new period applies to accrued causes of action provided a reasonable time is allowed within which to assert the cause. ( Estate of Whiting, 110 Cal.App. 399 [294 P.  [***6]  502]; Estate of Venners, 119 Cal.App. 417, 419 [6 P.2d 544]; Thompson v. County of Los Angeles, 140 Cal.App. 73, 76 [35 P.2d 185]; Norton v. City of Pomona, 5 Cal.2d 54, 65 [53 P.2d 952]; Kline v. San Francisco U. Sch. Dist., 40 Cal.App.2d 174, 176 [104 P.2d 661, 105 P.2d 362]; Scheas v. Robertson, 38 Cal.2d 119, 125 [238 P.2d 982]; Crothers v. Edison Elec. Co., 149 F. 606; Terry v. Anderson, 95 U.S. 628 [24 L.Ed. 365].)

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127 Cal. App. 2d 597 *; 274 P.2d 476 **; 1954 Cal. App. LEXIS 1384 ***

HECTOR OLIVAS, Appellant, v. WILLIAM M. WEINER, Respondent

Subsequent History:  [***1]  A Petition for a Rehearing was Denied October 15, 1954, and Appellant's Petition for a Hearing by the Supreme Court was Denied November 24, 1954.

Prior History: APPEAL from a judgment of the Superior Court of Los Angeles County. John J. Ford, Judge.

Action for damages for malpractice.

Disposition: Affirmed. Judgment of dismissal on sustaining defendant's demurrer without leave to amend, affirmed.


cause of action, six years, accrued, birth

Governments, Legislation, Statute of Limitations, General Overview, Interpretation, Time Limitations, Effect & Operation, Prospective Operation, Retrospective Operation