Case Name: Razavi v. King, et al.
Case No.: 1-11-CV-212086

Currently before the Court are the demurrer and motion to strike of defendants Michael King, M.D. and Doctors on Duty Medical Group, Inc. (“Defendants”) to the first amended complaint (“FAC”) of plaintiff Malina Razavi (“Plaintiff”). Defendants demur to each of Plaintiff’s first through seventh causes of action on the basis that they are barred by the statute of limitations, and to the first, second, fourth, fifth, sixth, and seventh causes of action on the basis that they otherwise fail to state a cause of action.

In response to Defendants’ first argument, Plaintiff contends that the statutes of limitations on each of her claims were tolled by her mental illness and bankruptcy.

Tolling

Code of Civil Procedure section 352 provides that a time period during which a plaintiff is “insane” is not part of the time limited for the commencement of actions mentioned in Chapter 3. (Code Civ. Proc., § 352, subd. (a).) For purposes of the tolling provision, a plaintiff is “insane” if he or she is incapable of caring for his or her property, transacting business, or understanding the nature or effects of his or her acts. (Alcott Rehab. Hosp. v. Super. Ct. (Smith) (2001) 93 Cal.App.4th 94, 101.)

Here, Plaintiff alleges that as a result of Defendants’ actions, she was left “in a near-catatonic state that would last for days and weeks at a time,” left her unable to pursue her daily activities, and made her unable to take care of personal matters, including pursuing the instant litigation. (FAC, ¶ 29.) She was in this state for a total of three months “[i]n aggregate.” (Id.)

While Defendants contend that these allegations do not include details demonstrating that Plaintiff’s condition rose to the level of the “insanity” required to toll the statute of limitations, the Court finds that Plaintiff has adequately alleged insanity given that she states her condition rendered her unable to take care of personal matters. (See Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 230 [allegation “that ‘[p]laintiff, as a result of the tortious acts of defendants, as set out in this complaint was, continuously from February 23, 1960 to the end of April 1960, insane’” was sufficient to toll the statute of limitations].)

However, the “on again, off again” nature of the disability alleged by Plaintiff makes it unclear that the statutes of limitations on her claims were tolled for long enough to render them timely. As urged by Defendants, a disability only tolls the statute of limitations if it existed when the plaintiff’s right of action accrued (Code Civ. Proc., §§ 352, subd. (a), 357); incompetency occurring after the statute begins to run does not interrupt its operation (Larsson v. Cedars of Lebanon Hospital (1950) 97 Cal.App.2d 704, 707). In light of this principle, if a plaintiff is insane at the time his or her cause of action accrues, but then regains sanity, the statute of limitations begins to run, and the statute is not tolled or suspended if the plaintiff relapses into insanity. (See Kleila v. Bell Helmets, Inc. (9th Cir. Sept. 6, 1995) 66 F.3d 355, 1995 WL 527364, *3-4 [under section 352, statute began to run during plaintiff’s “periods of lucidity” following and preceding periods of potential insanity], citing California Savings & Loan Soc. v. Culver (1899) 127 Cal. 107, 111 [noting the general rule that “when the statute has begun to run no subsequently accruing disabilities can interrupt it and … one disability cannot be tacked onto another. [For example,] … where a plaintiff was insane when his cause of action accrued, but recovered his sanity for a period, and then relapsed into insanity, the statute was set in motion by his sanity, and his relapse did not stop its running”]; see also Rose v. Petaluma & S.R. Ry. Co. (1923) 64 Cal.App. 213, 217 [addressing similar tolling provision in Workmen’s Compensation Act and stating that “a succession of disabilities cannot be tacked upon the first disability so as to prevent the operation of the statute”], disapproved of by Harris v. Industrial Acc. Commission of Cal. (1928) 204 Cal. 432, 4635436 [holding that in enacting the Workmen’s Compensation Act, the Legislature “did not adopt the provisions of the general law relating to the exceptions to the period of limitation,” which are “employed in the various provisions of the Code of Civil Procedure which relate to the limitations of actions and proceedings thereunder”], italics added.) In light of this rule, Plaintiff’s allegation that she was insane for an “aggregate” of three months is inadequate to establish that the statutes of limitations on her claims were tolled for the duration of that period. Further, because Plaintiff fails to allege when she became insane and when she regained sanity, it is impossible to conclude that the statutes were tolled at all. Consequently, Plaintiff fails to allege facts demonstrating that the statutes of limitations on her claims were tolled by her insanity.

Plaintiff also contends that the statutes of limitations on her claims were tolled during the pendency of her Chapter 7 bankruptcy cases. (See Code Civ. Proc., § 356 [when the commencement of an action is stayed by statutory prohibition, the time of the continuance of the prohibition is not part of the time limited for the commencement of the action].) However, Plaintiff does not identify the statutory prohibition she contends was triggered by her bankruptcy actions. Presumably, Plaintiff intends to argue that the statutes were tolled by the automatic stay, which prevents the commencement or continuation of a judicial proceeding against a debtor in bankruptcy that could have been filed before the bankruptcy action. (See Lewow v. Surfside III Condominium Owners’ Assn., Inc. (2012) 203 Cal.App.4th 128, 132, citing 11 U.S.C. § 362, subd. (a)(1).)

However, the automatic stay does not apply to a debtor’s claims against a non-debtor defendant. (See In re White (9th Cir. BAP 1995) 186 B.R. 700, 704 [the automatic stay is inapplicable to suits by the bankrupt, as appears from the statutory language, which refers to actions “against the debtor”].) Thus, while a bankruptcy stay has been held to constitute a statutory prohibition within the meaning of Code of Civil Procedure section 356 (Lewow v. Surfside III Condominium Owners’ Assn., Inc., supra, 203 Cal.App.4th at p. 133), the stay never applied to Plaintiff’s own claims, so the applicable statutes of limitations were not tolled by her bankruptcy cases.

Analysis of Plaintiff’s Claims

Having disposed of Plaintiff’s arguments regarding tolling, the Court will address whether she has pled facts indicating that her claims may have been filed within the applicable limitations periods and otherwise stating a claim for relief.

The First through Fifth Causes of Action

Plaintiff’s first cause of action is for malicious prosecution. Such a claim accrues when the proceedings at issue were dismissed (Oppenheimer v. Tamblyn (1958) 162 Cal.App.2d 293, 297): here, on September 14, 2009 (FAC, ¶ 27). The statute of limitations for a claim for malicious prosecution is two years. (Stavropoulos v. Super. Ct. (Stavropoulos) (2006) 141 Cal.App.4th 190, 197 [the two-year limitations period set forth in section 335.1 applies to malicious prosecution actions].) Thus, the statute on Plaintiff’s first cause of action expired on September 14, 2011. Given that this action was not filed until October 27, 2011, Defendants’ demurrer to the first cause of action is SUSTAINED on the ground that this claim is barred by the statute of limitations. However, Plaintiff is permitted 10 days’ leave to amend the FAC to allege additional facts in support of her contention that her three-month period of insanity tolled the statute of limitations on this claim until her complaint was filed, since her complaint was filed only a little more than a month outside of the limitations period.

Plaintiff’s second cause of action for false arrest and imprisonment is subject to a one-year statute of limitations. (Code Civ. Proc., § 340, subd. (c).) While Defendants contend that the statute on Plaintiff’s claim began to run on the date Plaintiff was arrested (see Demurrer at p. 6), it actually began to run on the date she was discharged from jail (Milliken v. City of South Pasadena (1979) 96 Cal.App.3d 834, 840), July 21, 2008. (See FAC, ¶¶ 21 and 22 [alleging Plaintiff was arrested on July 15, 2008 and was in jail for approximately 6 days].) Consequently, the statute on her second cause of action expired on July 21, 2009. It is apparent that Plaintiff cannot amend the FAC to bring this claim within the limitations period, given that she alleges only a three-month period of insanity and this claim was filed more than two years after the limitations period expired. Consequently, the demurrer to the second cause of action is SUSTAINED without leave to amend.

Defendants contend that Plaintiff’s third cause of action for negligence is one for professional negligence, which is subject to a one-year statute of limitations under the circumstances. However, it is not clear that the negligence Plaintiff alleges arose in the rendering of professional services, given that Plaintiff alleges the events at issue took place before any examination or treatment was rendered and before she even entered an examining room. (See FAC, ¶¶ 16 and 17; Code Civ. Proc. § 340.5, subd. (2) [defining professional negligence as “a negligent act or omission to act by a health care provider in the rendering of professional services”].) Nevertheless, a claim for ordinary negligence is governed by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1, which states that a plaintiff must bring an action within two years for “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Assuming the statute on this claim began to run on the last day of Plaintiff’s incarceration, July 21, 2008, which is the last event that Plaintiff alleges caused her harm (see Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 979–980 [“With respect to torts, generally speaking, a claim accrues and the statute of limitations begins to run upon the occurrence of the last event essential to the cause of action …. The infliction of actual and appreciable harm will commence the limitations period.”]), the limitations period expired on July 21, 2010, over a year before Plaintiff’s complaint was filed. The demurrer to this claim is consequently SUSTAINED without leave to amend.

Defendants’ demurrer to the fourth cause of action for intentional infliction of emotional distress is also subject to a two-year limitations period. (See Pugliese v. Super. Ct. (Pugliese) (2007) 146 Cal.App.4th 1444, 1450 [claims for intentional infliction of emotional distress are governed by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1].) This claim is based on emotional distress triggered by Plaintiff’s incarceration and possibly by Defendants’ earlier actions (FAC, ¶¶ 58-63), so the limitations period began to run on July 21, 2008 at the latest, and expired on July 21, 2010. (See Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 232 [tort of intentional infliction of emotional distress is complete when the effect of a defendant’s conduct results in plaintiff’s severe emotional distress].) Defendants’ demurrer to this claim is thus SUSTAINED without leave to amend.

Plaintiff’s fifth cause of action for violation of Civil Code section 52.1, which provides for a civil claim where an individual’s civil rights have been interfered with, is governed by a two-year statute of limitations. (See Code Civ. Proc., § 335.1; West Shield Investigations and Sec. Consultants v. Super. Ct. (Eymil) (2000) 82 Cal.App.4th 935, 953-954 [citing superseded one-year statute of limitations for personal injury claims]; Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 760 [same].) Again, given that the statute began to run on the last day of Plaintiff’s incarceration at the latest, Defendants’ demurrer to this claim is SUSTAINED without leave to amend.

The Sixth and Seventh Causes of Action

Finally, Plaintiff’s sixth cause of action for violation of Business & Professions Code section 17200, et seq., which is subject to a four-year limitations period (see Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 639 [Business & Professions Code section 17208 provides that unfair competition law claim must be brought within four years of accrual]), and seventh cause of action for violation of Civil Code section 51.7, which is subject to a three-year limitations period (see Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2014), ¶ 4:640), were asserted for the first time in Plaintiff’s FAC. Defendants argue that these claims were filed outside of the limitations periods based on the date the FAC was filed. Plaintiff, on the other hand, contends that these causes of action relate back to her original complaint, and were filed within the limitations periods based upon the date her original complaint was filed.

As an initial matter, the seventh cause of action is time-barred even if it is deemed to relate back to Plaintiff’s original complaint. This claim is based upon Plaintiff’s arrest and violent treatment while incarcerated, which she alleges resulted from Defendants’ false accusations against her that were prompted by her disability. (See FAC, ¶¶ 82-85.) The section 51.7 claim thus would have accrued on the last day of Plaintiff’s incarceration, July 21, 2008, at the latest, which is three years and slightly over three months before her original complaint was filed on October 27, 2011. Defendants’ demurrer to this claim is consequently SUSTAINED without leave to amend.

The sixth cause of action is based on Defendants’ allegedly false reports to the police. (FAC, ¶ 78.) These are the same facts that support Plaintiff’s original claims, and the sixth cause of action consequently relates back to the original complaint. (See Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 583 [“if an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts”].) While Defendants contend that the sixth cause of action is based on facts included for the first time in the FAC, which relate to Defendants’ alleged discrimination against Plaintiff on the basis of her disability, they cite only (and selectively) to Plaintiff’s opposition in support of this argument. (See Reply at p. 7.) The FAC itself does not mention these allegations in the sixth cause of action and is clear that the sixth cause of action is based on the same facts alleged in support of Plaintiff’s original claims. Consequently, the sixth cause of action relates back to Plaintiff’s original complaint and is not time-barred.

However, Defendants correctly contend that Plaintiff fails to allege she suffered an economic loss (see Kwikset Corp. v. Super. Ct. (Benson) (2011) 51 Cal.4th 310, 323-325 [plaintiff must have “lost money or property” to have standing to sue under the Unfair Competition Law]), and fails to plead the particular section of the Unfair Competition Law that was violated and to describe with reasonable particularity the facts supporting the violation (see Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619 [affirming trial court’s sustaining of demurrer due to lack of specificity in pleading]; Saunders v. Super. Ct. (California Reporting Alliance) (1994) 27 Cal.App.4th 832, 842 [same]), as required to support a claim for violation of Business & Professions Code section 17200 et seq. Defendants’ demurrer to the sixth cause of action is thus SUSTAINED with 10 days’ leave to amend on this basis.

In light of the above rulings, Defendants’ motion to strike is deemed MOOT.

The Court will prepare the order.