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Court of Appeal:
Conviction Doesn’t Revive Action Against Felon’s Employer
Code of Civil Procedure §340.3 Resuscitates Time-Barred Cause of Action Against Wrongdoer but Doesn’t Affect Lost Right to Sue Under Respondeat Superior, Presiding Justice Gilbert Declares in Wrongful Death Case
By a MetNews Staff Writer
A statute that revives time-barred causes of action against a wrongdoer upon that person’s conviction for a felony does not come into play where the defendant’s employer is sued under a respondeat superior theory, Div. Six of the Court of Appeal for this district held yesterday.
Presiding Justice Arthur Gilbert authored the opinion, in which Justice Kenneth Yegan joined. Justice Martin J. Tangeman tossed in a concurring opinion.
At issue was the timeliness of a wrongful death action against Horizon Senior Living, Inc. which operated Manse on Marsh, an assisted living facility in San Luis Obispo. Mauricio Cardenas, who suffered from dementia, had resided there, notwithstanding that the facility was not licensed to care for such persons.
On Dec. 21, 2014, Cardenas, 65, wandered from the residence—as he had in the past—and was hit by a car and died. Horizon’s director, Christopher Skiff, and its manager, Gary Potts, were convicted of felony elder abuse, and Skiff was also convicted of felony involuntary manslaughter.
Two-Year Statute
Paul Cardenas and Samuel Cardenas, sons of the decedent, brought a wrongful death action on March 3, 2020 against Horizon, Skiff and Potts. Citing Code of Civil Procedure §335.1, which provides a two-year statute of limitations for wrongful death, San Luis Obispo Superior Court Judge Ginger E. Garrett sustained a demurrer without leave to amend as to Horizon.
The plaintiffs appealed. Gilbert said that while an order sustaining a demurrer is not appealable, the court would exercise its prerogative of treating the appeal as if it were from a judgment of dismissal.
Their action against Horizon, the plaintiffs contended, was timely based on Code of Civil Procedure §340.3(a) which provides:
“Unless a longer period is prescribed for a specific action, in any action for damages against a defendant based upon the defendant’s commission of a felony offense for which the defendant has been convicted, the time for commencement of the action shall be within one year after judgment is pronounced.”
Gilbert’s Opinion
Gilbert wrote:
“Plaintiffs filed their original complaint almost six years after Cardenas’s death. We assume, for purposes of this appeal only, that the complaint against Skiff and Potts was timely under section 340.3. But Horizon is another matter.
“Section 340.3, subdivision (a) provides for a longer statute of limitations in an ‘action for damages against a defendant based upon the defendant’s commission of a felony offense for which the defendant has been convicted.’ The action against Horizon is not based on Horizon’s commission of a felony offense for which Horizon has been convicted. Section 340.3 does not apply to Horizon.”
The appellants also cited Labor Code §2802 which generally requires an employee to indemnify an employer “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”
Gilbert pointed out that the section “allows an employee to be indemnified by his or her employer” but does not inure to the benefit of a third party. “Plaintiffs have no cause of action based on Labor Code section 2802.”
Concurring Opinion
In a concurring opinion, Tangeman discussed out-of-state authorities. Gilbert remarked:
“The concurring opinion need not be concerned with out-of-state authority. California authority is more than sufficient to resolve the issue presented. We are pleased, however, that the out-of-state authorities cited by our colleague would agree with our result.”
The case is Cardenas v. Horizon Senior Living Inc., B312091.
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CHRISTOPHER SKIFF Convicted felon |
Appeal From Conviction
Div. Six affirmed Skiff’s conviction on Jan. 4, 2021, in an opinion by Tangeman.
In contesting the conviction for involuntary manslaughter, Skiff, who was sentenced top six months in jail and five years of probation, argued that the evidence was insufficient to show that he was criminally negligent.
“He is wrong,” Tangeman said, explaining:
“Substantial evidence supports the conclusion that it was objectively unreasonable to allow Cardenas to leave the facility and roam unsupervised without staff’s knowledge of his whereabouts. “A corporate officer may be guilty of involuntary manslaughter if he or she was aware of the omissions and failed to control them.”
Tangeman also said that “substantial evidence” supported the conviction for elder abuse based on Skiff having “failed to take sufficient steps to monitor” the safety of Cardenas “despite knowledge of the dangers presented.”
That case is People v. Skiff, 59 Cal.App.5th 571.
Potts pled guilty to elder abuse in exchange for the charge of voluntary manslaughter being dropped.
Ricardo Serafin, the driver of the car that hit Cardenas, was not charged. The California Highway Patrol determined that Cardenas was crossing in the dark at an unsafe spot and there was not an opportunity to avoid hitting him.
Manse on Marsh was sold in 2019 to Pacifica Senior Living.
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