California Team Secures Appellate Win in Statute of Limitations Matter of First Impression

Walnut Creek, Calif. (May 25, 2022) - Walnut Creek Partner Reuben Jacobson recently secured an appellate victory, in conjunction with California Appellate Practice Partners Jeffry A. Miller and Tracy D. Forbath, on behalf of an assisted living facility in a wrongful death matter when a California appellate court affirmed the lower court’s decision to sustain the facility’s demurrer because the statute of limitations had expired.

In the underlying matter, a resident of an assisted living facility was struck by a car and killed after wandering away from the facility unsupervised. The director of the facility was subsequently convicted of felony elder abuse and manslaughter, and the facility’s manager was convicted of felony elder abuse. The facility was not convicted of any crime.

More than two years after the death of the resident, the resident’s heirs sued the facility as well as its manager and director, alleging negligence, willful misconduct, elder abuse, and wrongful death. The facility demurred to the plaintiffs’ complaint on the ground that it was barred by the two-year statute of limitations. The plaintiffs contended that despite the expiration of the two-year statute of limitations, the felony convictions of the facility’s manager and director revived the statute of limitations. Moreover, the plaintiffs argued that because the facility was liable under the doctrine of respondeat superior, the statute of limitations was also revived as to it. In this matter of first impression, the trial court agreed with the facility and sustained its demurrer without leave to amend.

On appeal, the court explained that victims of a felony have an extended statute of limitations in which to bring an action for personal injury or wrongful death against the person(s) convicted of the felony. However, the court reasoned that the extended statute of limitations did not apply to a felon’s employer based on the doctrine of respondeat superior. It further determined that Labor Code section 2802, which allows an employee to be indemnified by his or her employer, did not apply to third parties. Accordingly, the appellate court affirmed the trial court’s decision in favor of Lewis Brisbois’ client.

Significantly, the concurring opinion in this case provides a detailed analysis of authorities outside of California that have held that the statute of limitations for respondeat superior liability is the same as for the individual tortfeasor. The concurrence observes that, “the extended statutes of limitations apply where they refer to particular types of actions rather than particular types of defendants. . . . This distinction warrants the conclusion that [the statute of limitations] applies only to defendants convicted of a felony and not to their employers.”

Mr. Jacobson is the Northern California vice-chair of Lewis Brisbois’ Long-Term Care, Healthcare, and Medical Malpractice Practices. 

You may read the court’s full opinion here.

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