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Andonagui v. May Department Stores Company4/13/2005
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 or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' (Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].) 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.]" (Blank v. Kirwin (1985) 39 Cal.3d 311, 318 (Blank).) We will uphold a judgment on an order sustaining a demurrer if any one of several grounds in the demurrer is well taken. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
"Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment. [Citation.]" (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 (Cooper); Blank, supra, 39 Cal.3d at p. 318.) "The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank, supra, 39 Cal.3d at p. 318; Cooper, supra, 70 Cal.2d at p. 636.) "Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citation.]" (Cooper, supra, 70 Cal.2d at p. 636.)
II. Statute of Limitations
"A basic canon of statutory interpretation is that statutes do not operate retrospectively unless the Legislature plainly intended them to do so." (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) " here the application of a new or amended statute of limitations would have the effect of reviving an already time-barred claim, the general rule against retroactive application of the statute is applicable in the absence of a clear indication of legislative intent to the contrary." (Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 378-379, italics added.)
A new statute that enlarges a statutory limitations period applies to actions that are not already barred by the original limitations period at the time the new statute goes into effect. (Douglas Aircraft Co. v. Cranston (1962) 58 Cal.2d 462, 465 (Douglas); Mudd v. McColgan (1947) 30 Cal.2d 463, 468 (Mudd); Thompson v. City of Shasta Lake (E.D.Cal. 2004) 314 F.Supp.2d 1017, 1024 (Thompson).) The newly enlarged limitations period will apply retroactively, reviving actions that are already time-barred, only if the Legislature expressly stated such an intent. (Douglas, supra, 58 Cal.2d at p. 465; Thompson, supra, 314 F.Supp.2d at p. 1024.) "These rules afford warning to potential defendants that until the statute of limitations has run it may be extended, whereas after it has run, they may rely upon it in conducting their affairs." (Douglas, supra, 58 Cal.2d at p. 465.)
When plaintiff allegedly sustained her injuries on December 15, 2002, the statute of limitations then in effect for personal injuries was one year. (§ 340, subd. (3); Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1028 (Krupnick).) By legislation which became effective on January 1, 2003, the statute of limitations in effect when plaintiff filed her action on April 6, 2004 was two years. (§ 335.1; Krupnick, supra, 115 Cal.App.4th at p. 1028.) The one-year statute of limitations (§ 340, subd. (3)) had not barred her action at the time the two-year statute of limitations (§ 335.1) became effective. Plaintiff's action is governed by the two-year statute of limitations in effect when she filed her action (§ 335.1) rather than
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