Barker v. Garza , 218 Cal. App. 4th 1449 ( 2013 )

Filed 8/22/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ABIGAIL BARKER, B237916
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. GC 045404)
v.
CARI EILEEN GARZA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Joseph F. De Vanon, Judge. Affirmed.
Law Office of Marilyn M. Smith, Marilyn M. Smith; Law Office of Lisa Fisher
and Lisa Fisher for Plaintiff and Appellant.
Carroll, Kelly, Trotter, Franzen & McKenna, Mark V. Franzen, Jennifer L. Sturges
and Christy Lee Thomasson for Defendant and Respondent.
******
Abigail Barker appeals the dismissal of her claim against Cari Eileen Garza
pursuant to the Drug Dealer Liability Act (DDLA), Health and Safety Code section
11700 et seq., which was based upon the death of her brother due to an overdose of
controlled substances allegedly supplied by Garza, a registered psychiatric nurse. The
trial court sustained Garza‟s demurrer to Barker‟s DDLA claim in her second amended
complaint (SAC) without leave to amend on the ground that it was untimely pursuant to
the one-year statute of limitations in the DDLA. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Because Barker appeals from the sustaining of Garza‟s demurrer, we accept as
true the facts alleged in the SAC. (Whittemore v. Owens Healthcare-Retail Pharmacy,
Inc. (2010) 185 Cal. App. 4th 1194, 1197.) Barker‟s brother, Matthew Steven Barker, died
on June 10, 2008, from an overdose of either the drug fentanyl, or a combination of the
drugs fentanyl and Klonopin.2 At the time of Matthew‟s3 death, Barker was a minor; she
reached the age of majority in April 2010.4
Prior to his death, Matthew suffered from mental illness. At various times he was
a patient in the psychiatric unit at Aurora Las Encinas Hospital in Pasadena, California,
and between December 2005 and March 2007, Garza was one of the nurses responsible
for Matthew‟s care. Both while Matthew was in the hospital and after he was discharged,
1 We grant Barker‟s unopposed request for judicial notice of the Michigan DDLA,
Michigan Compiled Laws Annotated section 691.1601 et seq., as well as the legislative
history of California‟s DDLA. (Evid. Code, §§ 451, 452.) We decline to take judicial
notice of an article from the Model DDLA website and an excerpt from an article in the
Valparaiso University Law Review. The information contained in those sources is
reasonably subject to dispute and Barker has not provided sufficient information for us to
determine if judicial notice is proper. (Evid. Code, §§ 452, subd. (h), 453, subd. (b).)
2 Fentanyl is a powerful pain medication; both fentanyl and Klonopin are available
only by prescription and may only be used under medical supervision.
3 We refer to Matthew by first name only for clarity; no disrespect is intended.
4 The record does not reflect Barker‟s exact birth date, but the parties do not dispute
that Barker reached the age of majority in April 2010.
2
Garza maintained an inappropriate personal relationship with him, and Matthew came to
rely on her for assistance when his illness prevented him from properly taking care of
himself or exercising proper judgment.
Garza illegally sold or distributed certain drugs and medications to individuals
who did not have valid prescriptions, including Matthew. Among them were fentanyl
and Klonopin, which she provided to Matthew during an acute relapse of his bipolar
disease and a severe period of mania, even though she knew that fentanyl did not treat
bipolar disease or other mental illnesses and that Klonopin was not to be used by
individuals with a history of addiction. She also knew that improperly administered
fentanyl could be fatal, as could a combination of the two drugs. As a result of taking
those medications, Matthew died.
Exactly two years after Matthew‟s death on June 10, 2010, Barker, Matthew‟s
estate, and Matthew‟s mother filed a civil complaint against Garza and another defendant,
alleging claims for statutory elder abuse, product liability, fraudulent concealment, and
wrongful death. On February 9, 2011, the plaintiffs filed a first amended complaint,
asserting for the first time claims against Garza pursuant to the DDLA. The plaintiffs
subsequently filed the SAC on August 11, 2011, which maintained their DDLA claims
against Garza.
Garza demurred to the SAC, arguing, inter alia, that the plaintiffs‟ DDLA claims
were barred by the one-year statute of limitations in Health and Safety Code section
11714, subdivision (a). As relevant here, Barker argued that her DDLA claim was timely
because the statute of limitations was tolled during the period she was a minor pursuant
to Code of Civil Procedure section 352, subdivision (a) (section 352(a)).5 The trial court
sustained the demurrer without leave to amend, rejecting Barker‟s tolling argument and
finding her DDLA claim untimely. The trial court also sustained the demurrer as to
5 All further statutory citations are to the Code of Civil Procedure unless otherwise
indicated.
3
Barker‟s other claims and an order of dismissal followed. Barker has appealed only the
dismissal of her DDLA claim.6
DISCUSSION
On appeal, Barker does not contend that her DDLA claim accrued any later than
the date of Matthew‟s death, June 10, 2008. Absent tolling, the one-year statute of
limitations in Health and Safety Code section 11714, subdivision (a) expired on June 10,
2009, and Barker‟s assertion of her DDLA claim on February 9, 2011, was untimely. We
thus address only two narrow issues: whether the trial court correctly concluded that the
limitations period in Health and Safety Code section 11714, subdivision (a) was not
tolled until Barker reached the age of majority; and alternatively, whether section 11714,
subdivision (b) tolled Barker‟s claim until the expiration of the time in which Garza could
have been prosecuted for controlled substance offenses. We conclude that the trial court
properly refused to apply minority tolling to Barker‟s DDLA claim. Further, we find that
Barker waived her argument under section 11714, subdivision (b). Even if not, we hold
that section 11714, subdivision (b) does not apply to her claim because Garza was never
convicted of a criminal offense involving an illegal controlled substance.7
1. Standard of Review
We review de novo the sustaining of a demurrer. (Sprinkles v. Associated
Indemnity Corp. (2010) 188 Cal. App. 4th 69, 75.) “„In reviewing the sufficiency of a
complaint against a general demurrer, we are guided by long-settled rules. “We treat the
demurrer as admitting all material facts properly pleaded, but not contentions, deductions
6 The trial court overruled the demurrer as to other plaintiffs and the plaintiffs have
filed a third amended complaint. Those claims and amendments are not at issue here.
The order of dismissal disposed of all claims by Barker against Garza, so it is appealable
pursuant to section 581, subdivision (d).
7 Barker raised a third issue in a footnote in her opening brief that her DDLA claim
was preserved by equitable tolling. She did not raise this argument in the trial court, so
we find it waived. (Evans v. Centerstone Development Co. (2005) 134 Cal. App. 4th 151,
160-161 (Evans).) Even excusing her waiver, we decline to consider this issue because it
was presented only in a footnote in her opening brief. (Id. at p. 160.)
4
or conclusions of fact or law. [Citation.] We also consider matters which may be
judicially noticed.” [Citation.] Further we give the complaint a reasonable interpretation,
reading it as a whole and its parts in their context. [Citation.] When a demurrer is
sustained, we determine whether the complaint states facts sufficient to constitute a cause
of action. [Citation.]‟” (Ibid.) “When a complaint shows on its face that it is barred by a
statute of limitations, a general demurrer may be sustained and a judgment of dismissal
may be entered.” (McGee v. Weinberg (1979) 97 Cal. App. 3d 798, 802 (McGee); see also
Van de Kamps Coalition v. Board of Trustees of Los Angeles Community College Dist.
(2012) 206 Cal. App. 4th 1036, 1044.)
2. The Statute of Limitations for DDLA Claims Is Not Tolled During Minority
The applicability of minority tolling under the DDLA is one of statutory
interpretation, and we are guided by well-established principles. “[O]ur goal is „to
ascertain the intent of the enacting legislative body so that we may adopt the construction
that best effectuates the purpose of the law.‟” (Coachella Valley Mosquito & Vector
Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal. 4th 1072,
1087 (Coachella Valley).) First, we must look to the words of the statute, which
generally provide the most reliable indicator of legislative intent. (Vafi v. McCloskey
(2011) 193 Cal. App. 4th 874, 880 (Vafi).) If the statutory language is unambiguous, then
we presume the Legislature meant what it said and our inquiry ends. (Ibid.) We give
words in a statute their plain and common sense meaning, and we avoid a construction
that would produce absurd results, which we presume the Legislature did not intend.
(Ibid.) We also “do not construe statutes in isolation; rather, we construe every statute
with reference to the whole system of law of which it is a part, so that all may be
harmonized and anomalies avoided.” (Coachella Valley, supra, at p. 1089.)
A. Statutory Framework
1. The DDLA
Enacted in 1996, the DDLA created a “civil remedy for damages to persons in a
community injured as a result of the use of an illegal controlled substance.” (Health &
Saf. Code, § 11701.) The statute was intended to serve several purposes: to enable
5
plaintiffs “to recover damages from those persons in the community who have joined the
marketing of illegal controlled substances”; “to shift, to the extent possible, the cost of
the damage caused by the existence of the market for illegal controlled substances”; “to
establish the prospect of substantial monetary loss as a deterrent to those who have not
yet entered into the distribution market for illegal controlled substances”; and “to
establish an incentive for users of illegal controlled substances to identify and seek
payment for their own treatment from those dealers who have sold illegal controlled
substances to the user in the past.” (Ibid.; see also Health & Saf. Code, § 11702.) The
statute created a cause of action against a “person who knowingly participates in the
marketing of illegal controlled substances” (§ 11704), and it confers standing on a broad
array of plaintiffs, including “[a] parent, legal guardian, child, spouse, or sibling of the
individual controlled substance user,” “[a]n individual who was exposed to an illegal
controlled substance in utero,” and employers and other entities (§ 11705), as well as
individual users under certain conditions (§ 11706).
As broad as the potential class of plaintiffs is under the DDLA, the window of
time within which they can sue is narrow. The DDLA imposes a one-year statute of
limitations on all claims following accrual and provides for tolling in only one
circumstance: “(a) Except as otherwise provided in this section, a claim under this
division shall not be brought more than one year after the defendant furnishes the
specified illegal controlled substance. A cause of action accrues under this division when
a person who may recover has reason to know of the harm from use of an illegal
controlled substance that is the basis for the cause of action and has reason to know that
the use of an illegal controlled substance is the cause of the harm. [¶] (b) For a
defendant, the statute of limitations under this section does not expire until one year after
the individual potential defendant is convicted of a criminal offense involving an illegal
controlled substance or as otherwise provided by law.” (Health & Saf. Code, § 11714.)
2. Section 352(a)
Title 2 of part 2 of the Code of Civil Procedure prescribes the limitations periods
during which “[c]ivil actions, without exception,” must be commenced after they accrue,
6
“unless where, in special cases, a different limitation is prescribed by statute.” (§ 312.)
Chapter 3 of that title and part (chapter 3) sets forth the limitations periods for actions
other than for the recovery of real property. (§§ 335-349.4.) Section 352 appears in
chapter 4 of that title and part, which sets forth certain general provisions applicable to
limitations periods, including grounds for tolling. (See, e.g., §§ 351-356.) Section 352(a)
states that, “[i]f a person entitled to bring an action, mentioned in Chapter 3 (commencing
with Section 335) is, at the time the cause of action accrued either under the age of
majority or insane, the time of the disability is not part of the time limited for the
commencement of the action.”
B. Minority Tolling Under the DDLA
Statutes of limitations reflect a legislative policy to “promote justice and prevent
the assertion of stale claims after the lapse of long periods of time.” (McGee, supra, 97
Cal.App.3d at p. 804.) “„“The theory is that even if one has a just claim it is unjust not to
put the adversary on notice to defend within the period of limitation and that the right to
be free of stale claims in time comes to prevail over the right to prosecute them.”‟”
(Romano v. Rockwell Internat., Inc. (1996) 14 Cal. 4th 479, 488.)
Section 352(a) embodies an exception to this policy by “effectuat[ing] a deep and
long[-]recognized principle of the common law and of this state: children are to be
protected during their minority from the destruction of their rights by the running of the
statute of limitations.” (Williams v. Los Angeles Metropolitan Transit Authority (1968)
68 Cal. 2d 599, 602 (Williams).) However, section 352(a) is not absolute; it is limited to
actions “mentioned” within chapter 3 of the Code of Civil Procedure. (Blankenship v.
Allstate Ins. Co. (2010) 186 Cal. App. 4th 87, 97 (Blankenship) [“By its own terms, . . .
section 352 applies only to civil actions initiated in a court of law mentioned in chapter
3 . . . of the Code of Civil Procedure, commencing with . . . section 335.”].)
Although the DDLA appears in the Health and Safety Code, Barker contends that
her DDLA claim is “mentioned” in chapter 3 of the Code of Civil Procedure, and
therefore subject to section 352(a), because it is an action upon a statute as provided in
7
section 338, subdivision (a) or section 340, subdivision (a).8 We disagree. When
multiple statutes of limitations may apply to a claim, “a specific statute of limitations
takes precedence over a general one, even though the latter „“would be broad enough to
include the subject to which the more particular provision relates.” [Citation.]‟” (Vafi,
supra, 193 Cal.App.4th at p. 880; see also David M. v. Beverly Hospital (2005) 131
Cal. App. 4th 1272, 1279 [applying statute of limitations and tolling provisions in § 340.5
for tort claims against health care providers over more general provisions in §§ 338 and
352]; Estate of Mason (1990) 224 Cal. App. 3d 634, 638 [applying statute of limitations in
Prob. Code over more general statute of limitations in Code Civ. Proc., § 337 for actions
based on a written instruments].) The DDLA contains its own limitations period, so that
more specific provision applies to Barker‟s DDLA claim over the more general
provisions in chapter 3 of the Code of Civil Procedure. Because Barker‟s claim does not
fall within chapter 3, section 352(a) does not apply to toll her claim. (See § 312.)
The language, structure, and purpose of the DDLA also convince us that the
Legislature did not intend to toll DDLA claims for minors. In Health and Safety Code
section 11714, subdivision (a), the Legislature provided that, “[e]xcept as otherwise
provided in this section, a claim under this division shall not be brought more than one
year after the defendant furnishes the specified illegal controlled substance” once the
claim has accrued. (Italics added.) The phrase “in this section” refers to Health and
Safety Code section 11714, subdivision (b), which states that the limitations period does
not expire until one year after an “individual potential defendant is convicted of a
8 Section 338, subdivision (a) imposes a three-year limitation period for “[a]n action
upon a liability created by statute, other than a penalty or forfeiture.” Section 340,
subdivision (a) imposes a one-year limitation period for “[a]n action upon a statute for a
penalty or forfeiture, if the action is given to an individual, or to an individual and the
state, except if the statute imposing it prescribes a different limitation.” To address
Barker‟s argument, we need not decide, as between those two provisions, which might
apply to her DDLA claim. (Low v. Lan (2002) 96 Cal. App. 4th 1371, 1380-1382
[describing difference between penalties within § 340, subd. (a) and other claims within
§ 338, subd. (a)].) If her DDLA claim was subject to either provision, Barker‟s claim
was tolled by section 352 and would have been timely.
8
criminal offense involving an illegal controlled substance or as otherwise provided by
law.”
“„[I]f exemptions are specified in a statute, we may not imply additional
exemptions unless there is a clear legislative intent to the contrary.‟” (Vafi, supra, 193
Cal.App.4th at p. 881; see also Blankenship, supra, 186 Cal.App.4th at p. 94 [“By long-
standing rule of statutory construction, the Legislature‟s omission of a term in a list of
terms indicates the Legislature did not intend to include the omitted term, and we cannot
add the term to the statute by judicial fiat.”].) By delineating one ground for tolling and
providing that all other claims “shall not be brought” more than one year after accrual,
the Legislature intended to limit tolling to that one circumstance and exclude all others,
including tolling based on a plaintiff‟s minority.
Both Barker and the dissent rely on Williams to avoid this conclusion. In that
case, a minor sued a public entity for negligence and timely filed a claim with the entity,
but failed to timely file his lawsuit as required by Code of Civil Procedure section 342,
which required him to commence his lawsuit against a public entity within the time
period set forth in Government Code section 945.6. (Williams, supra, 68 Cal.2d at
p. 601.) The public entity argued that the plaintiff‟s claim was untimely and not tolled by
Code of Civil Procedure section 352, but the Supreme Court disagreed. First, the court
held that section 352 applied because the plaintiff‟s claim was expressly “mentioned” in
chapter 3 of the Code of Civil Procedure as a claim against a public entity. (Williams, at
pp. 601-602.) As a result, the plaintiff‟s claim was “protected until majority, no matter
what statutory limitations apply to litigants other than minors.” (Id. at p. 601.) Second,
the court rejected the argument that the Legislature‟s inclusion of tolling in Government
Code section 945.6 for felons implicitly negated application of tolling in Code of Civil
Procedure section 352. (Williams, at p. 603.) The court reasoned that the maxim of
expressio unius est exclusio alterius for statutory construction did not apply because
Code of Civil Procedure section 352 unambiguously provided for tolling of any claim
mentioned in chapter 3. (Williams, at p. 603.) And third, the legislative history of
9
Government Code section 945.6 did not suggest that the Legislature intended to preclude
tolling based on minority for claims against public entities. (Williams, at p. 607.)9
Williams is distinguishable. In Williams, the statute of limitations for the
plaintiff‟s claim was fixed by Code of Civil Procedure section 342 (which expressly
incorporated the limitations period in Government Code section 945.6), which falls
within chapter 3, so section 352(a) applied by its plain terms. (Williams, supra, 68 Cal.2d
at p. 602 [“Indubitably, chapter three does „mention‟ this kind of action; it specifically
refers to an action against a public entity for which a claim must be presented; it
specifically prescribes the limitation applicable to such an action.” (Italics added.)].) As
a result, the high court was unwilling to find minority tolling implicitly abrogated by
enactment of tolling for felons. In contrast, in the DDLA, the Legislature exercised its
authority under Code of Civil Procedure section 312 to remove claims from the more
general limitations periods in chapter 3 and fix a statute of limitations specific to DDLA
claims, and we have found no authority to suggest a claim not subject to any limitations
period in chapter 3 can nevertheless still be “mentioned” in chapter 3 to trigger section
352(a) minority tolling. Our inquiry is thus whether the Legislature intended section
352(a) to apply, notwithstanding a claim under the DDLA is not subject to a limitations
period fixed by chapter 3.10
9 In 1970, the Legislature enacted section 352, subdivision (b), which nullified the
Supreme Court‟s holding in Williams and prohibits tolling under section 352 for claims
against public entities required to be presented pursuant to certain provisions of the
Government Code. (Todd v. County of Los Angeles (1977) 74 Cal. App. 3d 661, 665.)
10 Colleen L. v. Howard M. (1989) 209 Cal. App. 3d 542 and Jessica H. v. Allstate
Ins. Co. (1984) 155 Cal. App. 3d 590, cited by the dissent, are distinguishable. Like
Williams, Colleen L. applied minority tolling to a claim with a statute of limitations fixed
by former section 340.1, a section within chapter 3. (Colleen L., supra, at p. 545 &
fn. 6.) Jessica H. applied section 352(a) to the statute of limitations for a claim based on
an insurance contract governed by Hawaii law. The court noted, absent contrary proof,
the plaintiff‟s claim was subject to the four-year limitations period in section 337, which
fell within chapter 3, so it would be subject to section 352(a) tolling. (Jessica H., supra,
at p. 592.) The court then rejected the insurer‟s argument that minority tolling did not
apply to toll a two-year statute of limitations in Hawaii‟s no-fault law, citing Williams for
10
Unlike the implicit negation in Williams, the language in Health and Safety Code
section 11714, subdivision (a) requiring that DDLA claims “shall not be brought more
than one year” after accrual except as set forth in subdivision (b) expresses a clear
legislative judgment that the one-year statute of limitations applies to all DDLA claims,
except in one circumstance. (See Bledstein v. Superior Court (1984) 162 Cal. App. 3d
152, 158-159.) In Bledstein, the court concluded that section 352(a) did not directly
apply to toll the limitations period in Code of Civil Procedure section 340.6 for legal
malpractice claims, which would “in no event” exceed four years unless the period is
tolled for the reasons delineated, although the court ultimately concluded that tolling
based on a “legal or physical disability” in section 340.6 was broad enough to encompass
the grounds set forth in section 352(a). (Bledstein, at pp. 156-162.) The court
distinguished Williams because Code of Civil Procedure section 340.6 contained a tolling
provision for legal disabilities and because the statute in Williams did not contain
language similar to the “in no event” phrase in section 340.6 limiting tolling to the
grounds specified. (Bledstein, at p. 159; see also Jocer Enterprises, Inc. v. Price (2010)
183 Cal. App. 4th 559, 569-570 [following Bledstein]; cf. Farb v. Superior Court (2009)
174 Cal. App. 4th 678, 683 [finding that language that limitations period in Code Civ.
Proc., § 366.2 “shall not be tolled or extended for any reason except” in enumerated
circumstances excluded minority tolling under § 352].) Similar to the “in no event”
language in Bledstein and unlike in Williams, the limiting language in the DDLA
demonstrates an intent to create one express tolling exception and exclude others.
Two additional features of the DDLA distinguish it from Williams and support our
conclusion that minority tolling does not apply. First, the Legislature conferred standing
on certain minors to sue for DDLA violations, such as infants who were exposed to drugs
California‟s public policy of minority tolling. (Jessica H., at p. 595.) The court appeared
to base its conclusion largely on the fact that the minor‟s claim was for contractual
benefits, which would fall within chapter 3, although it noted under both Hawaii and
California law the limitations period in the no-fault statute would be tolled during
minority.
11
in utero and other children of drug users. (Health & Saf. Code, § 11705; see also § 11701
[identifying one class of plaintiffs as “infants injured as a result of exposure to controlled
substances in utero („drug babies‟)”].) Having enabled minors to sue under the DDLA
while also imposing a strict one-year limitation period on DDLA claims, the Legislature
would have included minority tolling if it had intended to toll the limitations period for
minors.
Second, when enacting Health and Safety Code section 11714, subdivision (b), the
Legislature carefully considered the interests implicated by tolling the time leading to a
defendant‟s conviction, which might delay a claim for five or more years and “make it
very difficult for a dealer to contest the case.” (Sen. Com. on Criminal Procedure,
Analysis of Sen. Bill No. 1754 (1995-1996 Reg. Sess.) as amended May 29, 1996, pp. t,
u.)11 Depending on the age of the minor when his or her cause of action accrues, a
minor‟s DDLA claim could be tolled up to 18 years before the limitations period begins
to run. (Fam. Code, § 6500 [defining minors as under the age of 18].) We think the
Legislature would not have expressly addressed the policy implications for tolling for
criminal convictions while only implicitly accepting minority tolling, which even more
directly implicates the policy against stale claims.12
11 The Senate committee‟s analysis explained: “[T]he bill would also provide that,
for defendants, the statute does not expire until one year after a person is convicted of
drug trafficking. This latter provision creates the possibility of a very long statute of
limitations. Suppose, for example, X sells a bag of PCP on January 1, 1997 to the user
who proceeds to assault and batter the victim in a PCP-induced rage. Under Penal Code
Section 800, the People have 3 years to commence a criminal prosecution for the drug
trafficking offense. A felony criminal prosecution under the „Three Strikes‟ law could
easily be held over 12 to 18 months before the case is tried. In this scenario, where the
seller is convicted 4 and 1/2 years after the sale, the tolling provision creates a 5 and 1/2
year statute of limitations to bring the action instead of the „normal‟ one year. Thus, the
special tolling provision may make it very difficult for a dealer to contest the case.” (Sen.
Com. on Criminal Procedure, Analysis of Sen. Bill No. 1754 (1995-1996 Reg. Sess.) as
amended May 29, 1996, pp. t, u.)
12 Barker suggests in passing that the accrual provision of Health and Safety Code
section 11714 indicates that the Legislature intended the limitations period to be tolled
12
The dissent argues Health and Safety Code section 11714, subdivision (b) is not a
“tolling” provision at all, but instead “creates . . . an enlarged limitations period
applicable to only certain defendants,” and, as a result, cannot be used to infer legislative
intent to exclude all other grounds for tolling. (Dis. opn., post, p. 9.) That interpretation
does not comport with the language of the statute or its legislative history.
As the dissent correctly explains, under Health and Safety Code section 11704,
subdivision (a), persons liable under the DDLA are those who “knowingly participate[] in
the marketing of illegal controlled substances.” “„Participate in the marketing of illegal
controlled substances‟” is defined as “to transport, import into this state, sell, possess
with intent to sell, furnish, administer, or give away, or offer to transport, import into this
state, sell, furnish, administer, or give away a specified controlled substance.” (Health &
Saf. Code, § 11703, subd. (g).) In turn, a person entitled to bring an action under the
DDLA may seek damages from “(1) [a] person who sold, administered, or furnished an
illegal controlled substance to the individual user of the illegal controlled substance,” or
“(2) [a] person who knowingly participated in the marketing of illegal controlled
substances,” if certain requirements are satisfied, including that “[t]he defendant‟s
participation in the marketing of illegal controlled substances was connected with the
same type of specified illegal controlled substance used by the individual user of an
illegal controlled substance, and the defendant has been convicted of an offense for that
type of specified illegal controlled substance.” (Health & Saf. Code, § 11705, subd.
(b)(1), (2).) Subdivision (c) of section 11705 specifies the phrase “knowingly
participated in the marketing of illegal controlled substances” used in subdivision (b)
means “a conviction for transporting, importing into this state, selling, possessing with
intent to sell, furnishing, administering, or giving away, or offering to transport, import
into this state, sell, furnish, administer, or give away a specified illegal controlled
during her minority when she did not have independent capacity to sue. Yet, the accrual
provision does not address legal capacity to sue; it simply codifies the familiar discovery
rule for accrual. (See Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 397 (Norgart).)
13
substance or a quantity of marijuana specified in subdivision (e), (f), (g), or (h) of Section
11703, which are separate in time.”
In the dissent‟s view, these provisions “distinguish[] two groups of potential civil
defendants: (1) Those who sell or furnish drugs to an individual user; and (2) those who
participate in other marketing activities by requiring that the latter have been convicted of
a drug offense arising from their participation.” (Dis. opn., post, p. 10.) That is correct,
but we disagree that distinction carries over to Health and Safety Code section 11714,
with subdivision (a) only applying to the former category of individuals, and subdivision
(b) only applying to the latter.
First, Health and Safety Code section 11714, subdivision (a) is not limited to only
defendants who directly sell or furnish illegal controlled substances to individual users. It
merely provides a claim may not be brought more than one year after the defendant
“furnishes” the drugs. As noted above, market participant defendants are liable if they
“knowingly participated in the marketing of illegal controlled substances” (Health & Saf.
Code, § 11705, subd. (b)(2)) and the phrase “participate[] in the marketing of illegal
controlled substances” includes selling and furnishing drugs (Health & Saf. Code,
§ 11703, subd. (g)). Thus, both categories of defendants can “furnish” controlled
substances to trigger the statute of limitations in section 11714, subdivision (a).
Second, the language of Health and Safety Code section 11714, subdivision (b) is
not limited to market participant defendants who must have suffered (or will suffer)
separate predicate convictions to trigger their liability under Health and Safety Code
section 11705, subdivision (b)(2). To the contrary, the language is broad, applying to “a
defendant” and covering any “criminal offense involving an illegal controlled substance”
(§ 11714, subd. (b)), which could very well include convictions for the direct sale or
furnishing of a controlled substance to a user, who then injures a victim suing under the
DDLA. An “individual potential defendant” in subdivision (b) likewise could be any
defendant liable under the DDLA, whether as a market participant or a direct seller, but
who has not yet been named in the lawsuit. And even if subdivision (b) is susceptible to
the dissent‟s interpretation, at most that renders the statute ambiguous, and the legislative
14
history makes clear it was not intended to be limited to market participant defendants.
The hypothetical used in the senate committee analysis as an example of the operation of
section 11714, subdivision (b) involved a prosecution and conviction for the sale of a
controlled substance to the user, who then injured the victim, i.e., a direct seller
defendant. (See, post, fn. 11.)13 Thus, section 11714, subdivision (b) is no more than a
tolling provision applying to all defendants under the DDLA. Having included it in the
statute alongside a directive that a one-year limitations period applies “except as
otherwise provided in” subdivision (b), the Legislature excluded minority tolling under
section 352(a).
We recognize the strong public policy in protecting minors from the sometimes
harsh application of statutes of limitations. (Williams, supra, 68 Cal.2d at p. 602.) We
think it is clear, though, that the Legislature did not intend DDLA claims to be tolled
during minority, and we are not at liberty to rewrite the DDLA to include a provision the
Legislature has excluded. (Norgart, supra, 21 Cal.4th at pp. 396-397.) The Legislature
of course may amend the DDLA if it disagrees with our conclusion, as the dissent urges.
But, as the DDLA reads now, the trial court correctly concluded that the statute of
limitations for Barker‟s DDLA claim was not tolled prior to her attaining the age of
majority.
13 The dissent also relies on legislative changes to the DDLA as it evolved in the
lawmaking process to eliminate the use of the word “tolled” in Health and Safety Code
section 11714, subdivision (b) when the bill was amended to also eliminate tolling while
a plaintiff is incapacitated. (Sen. Bill No. 1754 (1995-1996 Reg. Sess.) as amended
May 29, 1996.) Still, the senate committee analysis continued to refer to the provision as
“tolling” the statute of limitations even after the amendments, which weakens any
inference the change was substantive. (Sen. Com. on Criminal Procedure, Analysis of
Sen. Bill No. 1754 (1995-1996 Reg. Sess.) as amended May 29, 1996, pp. t, u.) Notably,
the original bill also included the phrase “individual potential plaintiff” as part of the
tolling provision related to a plaintiff‟s incapacity, suggesting the parallel phrase
“individual potential defendant” in subdivision (b) means simply an individual who has
not yet been named in the lawsuit, not a market participant defendant who has not yet
suffered the required predicate conviction to be liable, as the dissent contends.
15
3. Barker Waived Her Argument That Health and Safety Code Section 11714,
Subdivision (b), Applies to Her Claim, and Even If Not, That Subdivision Does Not
Render Her Claim Timely
Barker also argues that Health and Safety Code section 11714, subdivision (b),
tolled her claim until one year after the expiration of the three-year period within which
Garza could have been criminally prosecuted for the drug offenses that underlie Barker‟s
DDLA claim. (See Pen. Code, § 801.) Barker never raised this contention before the
trial court, and we deem it waived. (Evans, supra, 134 Cal.App.4th at p. 160.) Even
considering this argument on the merits, section 11714, subdivision (b) only applies when
the defendant “is convicted of a criminal offense involving an illegal controlled substance
or as otherwise provided by law.” (Italics added.) Nothing in the record suggests that
Garza was convicted (or even prosecuted) for any offense, so Barker‟s claim was not
tolled on this basis.
DISPOSITION
The trial court‟s order sustaining Garza‟s demurrer is affirmed. Garza is entitled
to costs on appeal.
FLIER, J.
I CONCUR:
BIGELOW, P. J.
16
RUBIN, J. – Dissenting
I respectfully dissent.
The statute of limitations applicable to a minor‟s causes of action is tolled until his
18th birthday. (Code Civ. Proc., § 352, subd. (a).)1 This statute “effectuate[s] a deep and
long recognized principle of the common law and of this state: children are to be
protected during their minority from the destruction of their rights by the running of the
statute of limitations. This principle became part of California statutory law as long ago
as 1863 . . . .” (Williams v. Los Angeles Metro. Transit Auth. (1968) 68 Cal. 2d 599, 602-
603 (Williams).) This special safeguard is required because minors do not have the
comprehension or experience of an adult and because they can sue only through a
guardian. (West Shield Investigations and Sec. Consultants v. Superior Court (2000)
82 Cal. App. 4th 935, 947.)
The Drug Dealer Liability Act (Health & Saf. Code, § 11700 et seq., (the Act))
provides a civil remedy for damages to persons injured by the use of illegal controlled
substances. The Act is designed to permit recovery of damages from those who take part
in furnishing or marketing illegal drugs. (Health & Saf. Code, § 11701.) In enacting this
law, the Legislature found that the civil justice system could also serve as a weapon
against the marketing of illegal drugs, as well as compensate those damaged by such
conduct. (Health & Saf. Code, § 11702, subd. (a).)
The Act grants standing to a wide variety of parties harmed by an individual‟s
drug use, including children of the user and those exposed to the drugs as unborn
1 All further undesignated section references are to the Code of Civil Procedure.
Section 352 also tolls the statute of limitations during the time a person is insane.
children. (Health & Saf. Code, § 11705, subd (a)(1), (2).)2 The majority would deprive
these plaintiffs of the special protections afforded by section 352, and thereby hamstring
their ability to vindicate their rights under the Act, for two purported reasons:
(1) because claims brought under the Act are not specifically mentioned in sections 335
through 349.4, which comprise Chapter 3 of Part 2 of the Code of Civil Procedure, as
required under section 352, subdivision (a); and (2) because the Legislature supplied a
tolling provision for defendants that ran until they were convicted of a drug-related
offense, but did not expressly include tolling for minors. In my opinion, the majority‟s
first point misapprehends the issue before us. The second misconstrues the Act‟s
language and legislative history.
Section 352 applies to actions “mentioned” in sections 335 through 349.4. (§ 352,
subd. (a).) Among these are “action[s] upon a liability created by statute . . . .” (§ 338,
subd. (a)), which I believe applies to the Drug Dealer Liability Act. The majority
effectively holds that where such liability exists and the statutory scheme includes its
own limitations period, statutory tolling for minors does not apply unless the Legislature
expressly says so. Although the Act is designed to provide a remedy for children who
have been harmed by drug dealing activity, the majority‟s interpretation will likely slam
shut the courthouse doors to them in virtually every case. As set forth below, I believe
the majority is wrong and that its holding has profound implications far beyond this case
that call for clarification by the Legislature and our Supreme Court.
1. The Act Is “Mentioned” In Section 338 As A Liability Created By Statute
As just noted the tolling provision of section 352 applies to any action
“mentioned” in sections 335 through 349.4. (§ 352, subd. (a).) Barker makes two
separate arguments on this issue. In her opening appellate brief, she points to
2 The Act also grants standing to siblings such as Barker. Because she was a minor
when Garza allegedly furnished her late brother with drugs, I analyze the issue through
the prism of the rights of minors.
2
section 338, subdivision (a), which provides a three-year limitations period for actions
based on a liability created by statute, and to section 340, subdivision (a), which provides
a one-year limitations period for actions upon a statute for a penalty or forfeiture. These
two provisions supply the required nexus with section 352, Barker contends, because the
Act creates a statutory liability. In her appellate reply brief, Barker also contends that the
three-year limitation period of section 338, subdivision (a) applies independently.
The majority does not differentiate between these separate issues. Instead, it
recites the settled rule that a specific limitations period governs over a more general one,
and holds that the Act‟s internal limitations period takes it outside the scope of section
338. As a result, the majority concludes, liability under the Act is not “mentioned” in
either section 338 or section 340, eliminating the need to determine which of those two
limitations period applies.
It is therefore unclear whether the majority is addressing only Barker‟s second
contention, or has simply conflated it with her first. In either case, the issue is not
whether the three-year period of section 338 applies instead of the Act‟s one-year time
frame. It does not. Instead, the issue is whether, for purposes of section 352, liability
under the Act is mentioned in section 338, subdivision (a) because it is a liability created
by statute.3
3 The Act extends liability to market participants with an indirect relationship to an
individual drug user (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1754 (1995-1996
Reg. Sess.), for hearing on July 10, 1996), extends standing to parties with an indirect
relationship to the individual drug user (Health & Saf. Code, § 11705, subd. (a)(3),(4)),
creates a presumption that market participants are liable in certain prescribed percentages
depending on the amount of drugs involved (Health & Saf. Code, § 11708), estops
defendants with certain drug offense convictions from contesting that they participated in
drug marketing activities (Health & Saf. Code, § 11712, subd. (b)(1)), and allows for ex
parte prejudgment attachment of a defendant‟s assets. (Health & Saf. Code, § 11713,
subd. (a).) As a result, liability under the Act is not coterminous with common law
claims and is created by statute. (Valdez v. Himmelfarb (2006) 144 Cal. App. 4th 1261,
1269-1270; Liberty Transport, Inc. v. Harry W. Gorst Co. (1991) 229 Cal. App. 3d 417,
431-434, disapproved on other grounds in Adams v. Murakami (1991) 54 Cal. 3d 105,
115.)
3
Although the majority does not articulate it this way, it effectively holds that
liability under the Act is not created by statute under section 338, subdivision (a) because
the Act contains its own internal limitations period. Implicit in this are the following:
(1) when liability is created by a statutory scheme that does not provide its own
limitations period, it falls within section 338 and tolling under section 352 applies unless
it is expressly excluded; and (2) when liability is created by a statutory scheme that does
include such an internal limitations period, then section 352 tolling does not apply unless
the Legislature expressly includes it.
If so, then section 352 impliedly states that actions by minors are tolled until their
18th birthday if they bring an action based upon a liability created by statute, unless the
statutory scheme includes an internal limitations period and does not expressly provide
that section 352 tolling applies. The majority cites no authority that would permit adding
such wording to section 352, and as far as I can tell, none exists. Instead, the most
relevant decisional authority holds to the contrary.
Our Supreme Court in Williams held that section 352 applied to Government Code
section 945.6‟s six-month limitations period for causes of action against government
entities because section 342, which states that actions against public entities must be
brought within the time allowed under Government Code section 945.6, mentioned such
actions. “Hence, as to any cause of action mentioned or covered, in that chapter, the
minor‟s cause [of action] is protected until majority, no matter what statutory limitations
apply to litigants other than minors.” (Williams, supra, 68 Cal.2d at p. 601, italics
added.)
The Williams court rejected the transit authority‟s contention that because
Government Code section 945.6, subdivision (b) permitted tolling for felons but did not
mention tolling for minors, the Legislature must have inferentially repealed the tolling
provision for children. First, doing so would reverse the strong public policy in favor of
tolling for minors. Second, when the Legislature enacted section 342 in 1963 as part of
the general legislation relating to claims and actions against public entities, it
“concurrently and clearly „mention[ed]‟ actions against public entities and preserv[ed] the
4
exemption of minors from the running of the statute of limitations.” (Williams, supra,
68 Cal.2d at pp. 603-604.)
The majority correctly points out that the Legislature amended section 352 in 1970
by adding subdivision (b), which states that section 352 does not apply to actions against
public entities subject to a statutory claims presentation requirement. Although this
amendment nullified Williams’s specific holding insofar as actions against public entities
are concerned, the underlying legal principle – that minors‟ tolling applies even if not
mentioned in a statute of limitations – remains alive and well in other contexts and has
been applied in appellate decisions after the 1970 amendment.
The court in Jessica H. v. Allstate Insurance Co. (1984) 155 Cal. App. 3d 590(Jessica H.) applied Williams in an action that arose from the death of a Hawaii resident
in a California automobile accident. The decedent‟s auto insurance policy provided
$15,000 in no-fault benefits coverage to his children if he were killed in an auto collision.
The insurance company denied his daughter‟s timely demand for those benefits, and she
sued the insurer in California more than four years after the accident occurred. The trial
court sustained without leave to amend the defendant‟s demurrer on the ground that the
action was time barred by a Hawaii statute that imposed a two-year limitations period on
claims arising from no-fault benefits coverage.
The Jessica H. court pointed out that Hawaii had a general tolling provision
similar to section 352, meaning there were no relevant differences between California
and Hawaii law that required a conflict of laws analysis. (Jessica H., supra,
155 Cal.App.3d at p. 593.) Citing language from Williams concerning the strong public
policy in favor of protecting minor‟s rights, the Jessica H. court reversed, holding that the
two-year limitations period was tolled while the daughter was a minor even though the
Hawaii two-year statute of limitations said nothing about tolling. (Id. at pp. 594-596.)
Under both Hawaii and California law, “general tolling statutes apply to special time
limitations for filing suit contained in specific statutes in the absence of an expression of
legislative intent to the contrary.” (Id. at pp. 592, 595-596; accord 3 Witkin Cal.
Procedure (5th ed. 2008) Actions, § 696, p. 916.)
5
The same rationale was applied to section 340.1, the statute of limitations
applicable to a minor‟s claims for sexual abuse, in Colleen L. v. Howard M. (1989)
209 Cal. App. 3d 542 (Colleen L.). The plaintiff in that case sued her stepfather under an
early version of section 340.1, which provided a three-year limitations period for civil
actions based on sexual abuse of a child under the age of 14. She sued right before she
turned 18, but more than three years after the abuse occurred, and the stepfather was
granted summary judgment on the ground that the limitations period had expired.
Relying on both Williams and Jessica H., the Colleen L. court held that actions under
section 340.1 were tolled by section 352 even though such tolling was not mentioned in
the statute. (Id. at pp. 544-546.)
Construing section 352 to apply here because liability under the Act is mentioned
in section 338 as a liability created by statute is both consistent with these legal principles
and vindicates the strong public policy in favor of protecting minors‟ rights through the
tolling provision. Although children, including the unborn, are clear beneficiaries of the
Act, the majority‟s interpretation would likely bar redress for many such plaintiffs.
Children must depend on a parent or guardian to bring an action on their behalf. A
child with a viable claim under the Act might not even know about the facts giving rise to
his claim, much less the existence of the Act. This is especially so for a child whose
claim arose from in utero exposure to drug use. What about a child whose claim flows
through a drug-using parent who is imprisoned for his or her drug use, or a child placed
in foster care as a result of drug-using parents? Even absent such circumstances, not all
parents would be aware of the child‟s rights under the Act, and of those who do, some
might be reluctant to incur the time, trouble, and potential expense of bringing an action
on their child‟s behalf. I do not believe the Legislature had such a bizarre result in mind
when it enacted the Drug Dealer Liability Act and expressly included children among
those with standing to sue.
6
2. The Legislature Did Not Exclude Section 352 Tolling From the Act
Subdivision (a) of Health and Safety Code section 11714 states that its one-year
limitations period runs from the date unlawful drugs were furnished and applies “[e]xcept
as otherwise provided in this section . . . .” Subdivision (b) supplies that exception,
stating that the limitations period for a defendant “does not expire until one year after the
individual potential defendant is convicted of a criminal offense involving an illegal
controlled substance or as otherwise provided by law.”
According to the majority, subdivision (b) is a tolling provision. It then invokes
the expressio unius et exclusio alterius rule of statutory construction: when the
Legislature sets forth certain exemptions in a statute, omitted exemptions are excluded
and cannot be implied. (Blankenship v. Allstate Ins. Co. (2010) 186 Cal. App. 4th 87, 94.)
The majority then concludes that the Legislature did just that in subdivision (b) of Health
and Safety Code section 11714, thereby excluding any other form of tolling, including
under section 352. It supports this conclusion with a portion of a Senate committee
analysis of the Act, which said that under the bill “the statute does not expire until one
year after a person is convicted of drug trafficking,” and also referred to subdivision (b)
as a “tolling provision.” (Sen. Com. on Criminal Procedure, Analysis of Sen. Bill
No. 1754 (1995-1996 Reg. Sess.) as amended May 29, 1996, pp. t-u.)
Williams held that this rule of statutory construction did not apply to the statute of
limitations for actions against public entities because “[i]n the absence of express
statutory provision, courts will not find an implied abrogation of long established
principles.” (Williams, supra, 68 Cal.2d at p. 603.) Because the Legislature enacted
section 342 along with its mention of actions against public entities as part of its general
legislation on such claims, it “concurrently and clearly” mentioned such actions within
the set of Civil Procedure code provisions applicable to section 352. Although
Government Code section 945.6 both mentioned and limited the tolling period for
prisoners, it “does not purport to qualify in any manner the tolling provisions of section
352 as to children.” (Williams at p. 604.)
7
In accord with this principle, decisions which have held that tolling under section
352 or other similar provisions are excluded from a statute of limitations have done so
only when the Legislature has made its intent clear. For example, section 340.5 provides
the limitations period for medical malpractice actions at the earlier of either three years
from the date of injury or one year from when the plaintiff discovers his injury. The
statute provides that “[i]n no event shall the time for commencement of legal action
exceed three years unless tolled for any of the following: (1) upon proof of fraud,
(2) intentional concealment, or (3) the presence of a foreign body . . . in the person of
the injured person.” (Italics added.) Decisions interpreting this statute have held that the
one-year limitations provision is subject to statutory tolling up to the outer limit of three
years because the one-year provision does not contain the three express tolling provisions
that qualify the outer three-year limitations period. In contrast, the Legislature‟s use of
the phrase “in no event,” followed by the three express forms of tolling in the three-year
limitations provision, was an express statement by the Legislature that any other forms of
tolling beyond those stated the in three-year time limit were precluded. (See Alcott
Rehabilitation Hospital v. Superior Court (2001) 93 Cal. App. 4th 94, 101-104, and cases
cited therein.)4
Assuming for the sake of argument only that subdivision (b) of Health and Safety
Code section 11714 is a tolling provision, I find it ambiguous and do not see a clear and
express legislative intent to preclude other forms of tolling, particularly tolling for
4 The majority‟s reliance on Blankenship v. Allstate Insurance Co., supra,
186 Cal. App. 4th 87 is also misplaced because, as that court itself acknowledged, it was
construing a provision that governed the conditions precedent to the bringing of a cause
of action against an insurer to recover under an auto insurance policy‟s uninsured
motorists coverage, not a statute of limitations. The court concluded that the statue in
question, Insurance Code § 11580.2, did not involve a “civil action” as that term is used
in section 352, a distinction noted in Williams as well. (Blankenship at pp. 97-98.)
Properly viewed, Blankenship is not an application of tolling provisions in statutes of
limitations at all.
8
minors. Ultimately, I conclude this rule of statutory construction has no application here
because subdivision (b) creates, not a tolling provision, but an enlarged limitations period
applicable to only certain defendants.
A tolling provision “stops the clock” from running and is distinguishable from an
enlarged limitations period. (See Woods v. Young (1991) 53 Cal. 3d 315, 325-326, &
fn. 3 [construing provisions requiring notice to a health care provider before suing for
malpractice as extending rather than tolling the statute of limitations].) Subdivision (b)
does not mention tolling or a suspension of the limitations period. Instead, it states that
the statute of limitations “does not expire” until one year after the defendant is convicted
of a drug offense.5
Under Health & Safety Code section 11714, subdivision (a), a claim under the Act
cannot be brought “more than one year after the defendant furnishes” the illegal drugs.
Under subdivision (b) of that section, however, the statute of limitations “does not expire
until one year after the individual potential defendant is convicted of a criminal offense
involving an illegal controlled substance or as otherwise provided by law.” These
competing provisions seem confusing and contradictory, but I believe a reasonable
construction may be found by examining them against other provisions of the Act.
Persons liable under the Act are those who “knowingly participate[] in the
marketing of illegal controlled substances.” (Health & Saf. Code, § 11704, subd. (a).)
To participate in such marketing means to manufacture, transport, import into this state,
sell, possess with intent to sell, furnish, administer, or give away illegal controlled
substances. (Health & Saf. Code, § 11703, subd. (g).)
5 Given that section 11714 does not even mention the words “tolling” or “tolled,” it
is hard to square the majority‟s conclusion with the holding in Jessica H. that “general
tolling statutes apply to special time limitations for filing suit contained in specific
statutes in the absence of an expression of legislative intent to contrary.” (Jessica H.,
supra, 155 Cal.App.3d at p. 592.) In contrast when the Legislature has decided to
preclude application of tolling statutes it has found a clear and express way to say it by
using those very words. (See e.g. Code of Civil Procedure §§ 340.5, 366.2.)
9
Persons with standing under the Act may sue those who “sold, administered, or
furnished an illegal controlled substance to the individual user of the . . . substance”
(Health & Saf. Code, § 11705, subd. (b)(1)) and those “who knowingly participated in the
marketing of illegal controlled substances . . . .” (Health & Saf. Code, § 11705,
subd. (b)(2).) However, an action may not be brought against one who did not furnish
the drug but instead knowingly participated in the marketing of illegal controlled
substances under subdivision (b)(2) of Health and Safety Code section 11705 unless
certain conditions are met, including: the defendant‟s participation in the marketing of
illegal drugs was connected with the same type of drug taken by the individual user and
“the defendant [] has been convicted of an offense for that type of specified illegal
[drug];” and “[t]he underlying offense for the conviction of the specified illegal
controlled substance occurred in the same county as the individual user‟s place of use.”
(Health & Saf. Code, § 11705, subd. (b)(2)(B),(D), italics added.)
Therefore, the Act distinguishes two groups of potential civil defendants:
(1) Those who sell or furnish drugs to an individual user; and (2) those who participate
in other marketing activities by requiring that the latter have been convicted of a drug
offense arising from their participation. (Health & Saf. Code, § 11705, subd. (b)(2).)
When viewed in this context, I believe Health & Safety Code section 11714 makes a
similar distinction.
As I see it, the one-year time period of subdivision (a) applies to defendants who
actually furnished the drug, as to whom no conviction is required as a predicate to
liability under the Act. Subdivision (b) applies a differently calibrated one-year
limitations period to “individual potential defendant[s],” which I believe refers to
defendants whose liability under the Act is based on marketing participation activities
apart from selling or furnishing drugs to the individual user. Because a conviction for a
drug-related offense arising from their marketing participation activities is a condition
precedent to liability under the Act, this subdivision sets them apart as potential
defendants by providing a one-year limitations period that runs from the date of any
10
conviction. This makes sense because until and unless such potential defendants are
convicted, they cannot be held liable under the Act.
Therefore the point of subdivision (b) is to create a different limitations period for
claims against a subcategory of potential defendants. It does so by enlarging the statute
of limitations to allow time for marketing participation defendants to be charged and tried
for their activities if they have not already received a qualifying conviction, and by giving
plaintiffs one year from that date to sue. In this sense the statute of limitations in Health
and Safety Code section 11714 is akin to the childhood sex abuse statute of limitations,
which provides for an age 26 cut-off on the statute of limitations against certain
defendants, but provides a longer limitations period against the actual perpetrator of
abuse and entity defendants who had reason to know of the perpetrator‟s sexual abuse.
(§ 340.1, subds. (a)(1),(2)&(3), (b)(1),(2).)
My interpretation is bolstered by a fuller examination of the Act‟s legislative
history. The evolution of a proposed statute after its original introduction is relevant to
showing legislative intent. (Conservatorship of Bryant (1996) 45 Cal. App. 4th 117, 128.)
An amendment that deletes certain language and replaces it with different terms creates a
presumption that the Legislature intended a different meaning and effect. (Id. at p. 129.)
Legislative rejection of specific language in an act as originally introduced is persuasive
evidence the act should not be construed to include the omitted language. (Id. at p. 130.)
When first introduced on February 22, 1996, the proposed version of section
11714, subdivision (a) called for a two-year limitations period that ran from the time the
plaintiff had reason to know he had been harmed by the defendant‟s act of furnishing
unlawful drugs. Proposed subdivision (b) stated, “For a plaintiff, the statute of
limitations under this section is tolled” while the plaintiff was incapacitated by his use of
illegal drugs, and, for a defendant, the statute of limitations “was tolled” until six months
after his conviction of a drug offense. (Legis. Counsel‟s Dig., Sen. Bill No. 1754 (1995-
1995 Reg. Sess.) Feb. 22, 1996, italics added.) On May 29, 1996, the Act‟s limitation
provision was amended into its current form, omitting all references to tolling in
subdivision (b). (Legis. Counsel‟s Dig., Sen. Bill No. 1754 (1995-1996 Reg. Sess.) as
11
amended May 29, 1996.) In short, the bill as originally introduced included what was
expressly described as a tolling provision, but that language was deleted and replaced
with language that enlarged the limitations period for certain defendants.6
Based on this I conclude the Legislature did not intend subdivision (b) of Health
and Safety Code section 11714 to serve as a tolling provision. Instead, as set forth above,
it enlarges the limitations period for certain defendants under certain circumstances. As a
result, the provision is subject to the principle of Williams, supra, 68 Cal. 2d 559, that
absent an express legislative limitation on the applicability of section 352, tolling for
minors is available under the Act. Therefore I would reverse the trial court‟s judgment.
CONCLUSION
Nothing in section 352 states or even remotely suggests that it does not apply to
actions upon a statutory liability that include an internal limitations period unless the
Legislature expressly declares that it does. I believe the majority has announced a new
rule that undermines the special protections afforded to minors under section 352. Even
though this new rule seems odd enough when applied to the Drug Dealer Liability Act,
which was intended to benefit children, its implications extend far beyond the Act and
extend to all actions upon a statutory liability, many of which have their own statutes of
limitations “scattered throughout the many special codes.” (5 Witkin, Cal. Procedure,
supra, Actions, § 431, p. 542) If I am right, the majority‟s error should be corrected. If
the majority is right, then for statutory liabilities where the Legislature intended that
section 352 apply, but did not say so in the statute‟s internal limitations provision,
remedial legislation would be necessary to correct the oversight. In either case, I urge the
6 That change probably explains why the Senate committee analysis quoted by the
majority confusingly referred to proposed section 11714 subdivision (b) as both a tolling
provision and the time at which the limitations period expired.
12
Supreme Court to clarify this matter. (People v. Knox (2004) 123 Cal. App. 4th 1453,
1464 (dis. opn. of Bammatre-Manoukian, J.).)
RUBIN, J.
13