Personal Injury Lawyer Blog
The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/brain injury case and its proceedings.)
LEGAL ARGUMENTS
Plaintiff’s Complaint is Barred by the Statute of Limitations.
A complaint is subject to a demurrer under Code of Civil Procedure section 430.10, subparagraph (e), if the facts alleged in the complaint and matters of which the court is entitled to take judicial notice show the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The statute of limitations for medical malpractice claims is set out in Code of Civil Procedure §340.5. It provides, in pertinent part:
In an action for injury or death by a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through use of reasonable diligence should have discovered, the injury, whichever occurs first. C.C.P. §340.5.
The plaintiff’s complaint does not specifically set forth the date of death of her mother; however, in each cause of action it is stated that the plaintiff was caused harm on September 27, 2007. The Coroner’s Report states that Ms. Miller died on that date.
Ordinarily, the statute of limitations with respect to a cause of action for wrongful death commences to run as of the date of death. Larcher v. Wanless (1976) 18 Cal.3d 646, 656-657. Here, the plaintiffs complaint was filed on April 27, 2009 — one year and seven months following the death of Alice Miller and seven months after the one year anniversary of her death and the expiration of the statute of limitations. As such, all five claims set forth in the complaint are barred by the applicable one-year period of limitation set forth in Code of Civil Procedure section 340.5. (See Part 4 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.