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Barker v. Garza

California Court of Appeal, Second District, Eighth Division

August 22, 2013

ABIGAIL BARKER, Plaintiff and Appellant,
CARI EILEEN GARZA, Defendant and Respondent. ABIGAIL BARKER, Plaintiff and Appellant,
CARI EILEEN GARZA, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. GC 045404, Joseph F. De Vanon, Judge. Affirmed.

Law Office of Marilyn M. Smith, Marilyn M. Smith; Law Office of Lisa Fisher and Lisa Fisher for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen & McKenna, Mark V. Franzen, Jennifer L. Sturges and Christy Lee Thomasson for Defendant and Respondent.


Abigail Barker appeals the dismissal of her claim against Cari Eileen Garza pursuant to the Drug Dealer Liability Act (DDLA), Health and Safety Code section 11700 et seq., which was based upon the death of her brother due to an overdose of controlled substances allegedly supplied by Garza, a registered psychiatric nurse. The trial court sustained Garza’s demurrer to Barker’s DDLA claim in her second amended complaint (SAC) without leave to amend on the ground that it was untimely pursuant to the one-year statute of limitations in the DDLA. We affirm.


Because Barker appeals from the sustaining of Garza’s demurrer, we accept as true the facts alleged in the SAC. (Whittemore v. Owens Healthcare-Retail Pharmacy, Inc. (2010) 185 Cal.App.4th 1194, 1197.) Barker’s brother, Matthew Steven Barker, died on June 10, 2008, from an overdose of either the drug fentanyl, or a combination of the drugs fentanyl and Klonopin.[2] At the time of Matthew’s[3] death, Barker was a minor; she reached the age of majority in April 2010.[4]

Prior to his death, Matthew suffered from mental illness. At various times he was a patient in the psychiatric unit at Aurora Las Encinas Hospital in Pasadena, California, and between December 2005 and March 2007, Garza was one of the nurses responsible for Matthew’s care. Both while Matthew was in the hospital and after he was discharged, Garza maintained an inappropriate personal relationship with him, and Matthew came to rely on her for assistance when his illness prevented him from properly taking care of himself or exercising proper judgment.

Garza illegally sold or distributed certain drugs and medications to individuals who did not have valid prescriptions, including Matthew. Among them were fentanyl and Klonopin, which she provided to Matthew during an acute relapse of his bipolar disease and a severe period of mania, even though she knew that fentanyl did not treat bipolar disease or other mental illnesses and that Klonopin was not to be used by individuals with a history of addiction. She also knew that improperly administered fentanyl could be fatal, as could a combination of the two drugs. As a result of taking those medications, Matthew died.

Exactly two years after Matthew’s death on June 10, 2010, Barker, Matthew’s estate, and Matthew’s mother filed a civil complaint against Garza and another defendant, alleging claims for statutory elder abuse, product liability, fraudulent concealment, and wrongful death. On February 9, 2011, the plaintiffs filed a first amended complaint, asserting for the first time claims against Garza pursuant to the DDLA. The plaintiffs subsequently filed the SAC on August 11, 2011, which maintained their DDLA claims against Garza.

Garza demurred to the SAC, arguing, inter alia, that the plaintiffs’ DDLA claims were barred by the one-year statute of limitations in Health and Safety Code section 11714, subdivision (a). As relevant here, Barker argued that her DDLA claim was timely because the statute of limitations was tolled during the period she was a minor pursuant to Code of Civil Procedure section 352, subdivision (a) (section 352(a)).[5] The trial court sustained the demurrer without leave to amend, rejecting Barker’s tolling argument and finding her DDLA claim untimely. The trial court also sustained the demurrer as to Barker’s other claims and an order of dismissal followed. Barker has appealed only the dismissal of her DDLA claim.[6]


On appeal, Barker does not contend that her DDLA claim accrued any later than the date of Matthew’s death, June 10, 2008. Absent tolling, the one-year statute of limitations in Health and Safety Code section 11714, subdivision (a) expired on June 10, 2009, and Barker’s assertion of her DDLA claim on February 9, 2011, was untimely. We thus address only two narrow issues: whether the trial court correctly concluded that the limitations period in Health and Safety Code section 11714, subdivision (a) was not tolled until Barker reached the age of majority; and alternatively, whether section 11714, subdivision (b) tolled Barker’s claim until the expiration of the time in which Garza could have been prosecuted for controlled substance offenses. We conclude that the trial court properly refused to apply minority tolling to Barker’s DDLA claim. Further, we find that Barker waived her argument under section 11714, subdivision (b). Even if not, we hold that section 11714, subdivision (b) does not apply to her claim because Garza was never convicted of a criminal offense involving an illegal controlled substance.[7]

1. Standard of Review

We review de novo the sustaining of a demurrer. (Sprinkles v. Associated Indemnity Corp. (2010) 188 Cal.App.4th 69, 75.) “‘In reviewing the sufficiency of a complaint 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.” [Citation.] 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.]’” (Ibid.) “When a complaint shows on its face that it is barred by a statute of limitations, a general demurrer may be sustained and a judgment of dismissal may be entered.” (McGee v. Weinberg (1979) 97 Cal.App.3d 798, 802 (McGee); see also Van de Kamps Coalition v. Board of Trustees of Los Angeles Community College Dist. (2012) 206 Cal.App.4th 1036, 1044.)

2. The Statute of Limitations for DDLA Claims Is Not Tolled During Minority

The applicability of minority tolling under the DDLA is one of statutory interpretation, and we are guided by well-established principles. “[O]ur goal is ‘to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.’” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1087 (Coachella Valley).) First, we must look to the words of the statute, which generally provide the most reliable indicator of legislative intent. (Vafi v. McCloskey (2011) 193 Cal.App.4th 874, 880 (Vafi).) If the statutory language is unambiguous, then we presume the Legislature meant what it said and our inquiry ends. (Ibid.) We give words in a statute their plain and common sense meaning, and we avoid a construction that would produce absurd results, which we presume the Legislature did not intend. (Ibid.) We also “do not construe statutes in isolation; rather, we construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided.” (Coachella Valley, supra, at p. 1089.)

A. Statutory Framework

1. The DDLA

Enacted in 1996, the DDLA created a “civil remedy for damages to persons in a community injured as a result of the use of an illegal controlled substance.” (Health & Saf. Code, § 11701.) The statute was intended to serve several purposes: to enable plaintiffs “to recover damages from those persons in the community who have joined the marketing of illegal controlled substances”; “to shift, to the extent possible, the cost of the damage caused by the existence of the market for illegal controlled substances”; “to establish the prospect of substantial monetary loss as a deterrent to those who have not yet entered into the distribution market for illegal controlled substances”; and “to establish an incentive for users of illegal controlled substances to identify and seek payment for their own treatment from those dealers who have sold illegal controlled substances to the user in the past.” (Ibid.; see also Health & Saf. Code, § 11702.) The statute created a cause of action against a “person who knowingly participates in the marketing of illegal controlled substances” (§ 11704), and it confers standing on a broad array of plaintiffs, including “[a] parent, legal guardian, child, spouse, or sibling of the individual controlled substance user, ” “[a]n individual who was exposed to an illegal controlled substance in utero, ” and employers and other entities (§ 11705), as well as individual users under certain conditions (§ 11706).

As broad as the potential class of plaintiffs is under the DDLA, the window of time within which they can sue is narrow. The DDLA imposes a one-year statute of limitations on all claims following accrual and provides for tolling in only one circumstance: “(a) Except as otherwise provided in this section, a claim under this division shall not be brought more than one year after the defendant furnishes the specified illegal controlled substance. A cause of action accrues under this division when a person who may recover has reason to know of the harm from use of an illegal controlled substance that is the basis for the cause of action and has reason to know that the use of an illegal controlled substance is the cause of the harm. [¶] (b) For a defendant, the statute of limitations under this section does not expire until one year after the individual potential defendant is convicted of a criminal offense involving an illegal controlled substance or as otherwise provided by law.” (Health & Saf. Code, § 11714.)

2. Section 352(a)

Title 2 of part 2 of the Code of Civil Procedure prescribes the limitations periods during which “[c]ivil actions, without exception, ” must be commenced after they accrue, “unless where, in special cases, a different limitation is prescribed by statute.” (§ 312.) Chapter 3 of that title and part (chapter 3) sets forth the limitations periods for actions other than for the recovery of real property. (§§ 335-349.4.) Section 352 appears in chapter 4 of that title and part, which sets forth certain general provisions applicable to limitations periods, including grounds for tolling. (See, e.g., §§ 351-356.) Section 352(a) states that, “[i]f a person entitled to bring an action, mentioned in Chapter 3 (commencing with ...

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