 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Andonagui v. May Department Stores Company4/13/2005
CERTIFIED FOR PARTIAL PUBLICATION
INTRODUCTION
Plaintiff and appellant Bertha Andonagui (plaintiff) filed a personal injury action against defendant and respondent May Department Stores Company (defendant) alleging general negligence and premises liability. Plaintiff pleaded her premises liability cause of action in two counts: negligence and willful failure to warn under Civil Code section 846.
The trial court sustained defendant's demurrer to plaintiff's complaint without leave to amend, determining that plaintiff's entire action was barred by the one-year statute of limitations for personal injury actions in former Code of Civil Procedure section 340, subdivision (3). Plaintiff appeals, contending that her action was not time-barred because it was governed by the two-year statute of limitations in section 335.1, which became effective on January 1, 2003. Defendant contends that the trial court properly sustained the demurrer without leave to amend because section 335.1 did not apply retroactively to plaintiff's action. Alternatively, defendant contends that the trial court correctly sustained the demurrer without leave to amend as to the willful failure to warn count because the factual allegations supporting that count did not show a willful or malicious failure to warn.
In the published portion of the opinion we hold that the two-year statute of limitations for personal injuries actions in section 335.1 applies to actions not already time-barred by the one-year statute of limitations in section 340, subdivision (3) when section 335.1 became effective on January 1, 2003, and, therefore, plaintiff's action was not time-barred. In the unpublished portion of the opinion we hold that the trial court properly sustained, without leave to amend, defendant's demurrer to the willful failure to warn count. Accordingly, we reverse in part and affirm in part.
BACKGROUND
On April 6, 2004, plaintiff filed a personal injury action against defendant. The complaint asserted causes of action for general negligence and premises liability based on injuries plaintiff allegedly sustained at a Robinsons-May store in Montebello on December 15, 2002, when she fell after tripping on a metal rack that had been left on the floor. In her complaint, plaintiff alleges a premises liability cause of action based on negligence and a willful failure to warn under Civil Code section 846.
Defendant demurred to the complaint, contending that plaintiff's action was barred by the one-year statute of limitations for personal injury actions in former section 340, subdivision (3). Defendant also demurred to plaintiff's willful failure to warn count, contending that it was not supported by sufficient factual allegations. Plaintiff argued that the two-year statute of limitations in new section 335.1 governed her action. Plaintiff reasoned that the two-year statute of limitations applied because her action was not time-barred as of the date section 335.1 became effective. Plaintiff did not address defendant's alternative argument that her alleged willful failure to warn count was not supported by sufficient factual allegations.
The trial court sustained defendant's demurrer without leave to amend and dismissed plaintiff's action. The trial court ruled that plaintiff's action was filed more than one year after she allegedly sustained her injuries and that section 335.1 did not apply retroactively to her action. The trial court did not address defendant's alternative argument as to plaintiff's count for willful failure to warn.
DISCUSSION
I. Standard of Review
"In reviewing the sufficiency of a complaint
Page 1 2 3 4 5 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|