Rasmussen v. Lazarus
B277635
| Cal. Ct. App. | Jan 8, 2018Background
- In 1986 Sherri Rasmussen was murdered; investigation later identified LAPD detective Stephanie Lazarus as a suspect after DNA linked her to a bite mark.
- Lazarus was arrested in 2009 and charged; the Rasmussens (parents) filed a wrongful death suit against her on July 26, 2010, while the criminal case was pending.
- Lazarus answered in February 2011 but did not plead prematurity or invoke the special felony-victim limitations provision (Code Civ. Proc. § 340.3(a)).
- Lazarus was convicted of murder on March 8, 2012; she did not assert a prematurity plea until a motion to dismiss filed April 8, 2016.
- Trial proceeded (bench trial), the court treated Lazarus’s conviction as stipulated, rejected her prematurity defense, and entered a $10 million judgment for the Rasmussens.
- The Court of Appeal affirmed, rejecting Lazarus’s contention that filing before conviction barred reliance on § 340.3(a).
Issues
| Issue | Plaintiff's Argument (Rasmussen) | Defendant's Argument (Lazarus) | Held |
|---|---|---|---|
| Whether filing the civil suit before defendant’s conviction prevents application of the one-year post-conviction limitations in CCP § 340.3(a) | The complaint was timely because the action was pending when Lazarus was later convicted; equity and statute support allowing the suit to proceed | The suit was premature and thus cannot rely on § 340.3(a), which authorizes actions brought within one year after conviction | Court: Filing before conviction does not bar suit where prematurity defense was waived, cured by conviction before it was raised, and equity disfavors enforcing the technical abatement plea |
| Whether defendant waived the plea in abatement by failing to timely raise prematurity | Waiver applies because defendant failed to plead prematurity in answer or promptly thereafter | Prematurity is a pure statutory/ textual defect that can be raised later | Court: Waiver—prematurity is a disfavored plea in abatement and must be timely asserted; Lazarus waived it by delay |
| Whether the prematurity defect was cured by the time the defense was asserted | The defect was cured when Lazarus was convicted in 2012, before she raised the defense in 2016 | Late assertion still precludes cure because statutory text requires suit "within one year after judgment" | Court: Cure applies—because the factual impediment (lack of conviction) no longer existed when the plea was raised, the plea could be disregarded |
| Whether equitable considerations permit disregarding the late prematurity plea | Equity supports allowing the action to proceed given plaintiffs filed promptly after identification and waited decades for justice | Enforcing prematurity now would merely benefit defendant and bar plaintiffs through defendant’s own delay | Court: Equity favors plaintiffs; reversing would produce an unconscionable forfeiture and defeat statute-of-limitations policies |
Key Cases Cited
- Bemmerly v. Woodward, 124 Cal. 568 (Cal. 1899) (prematurity is a plea in abatement that is waived if not timely pleaded)
- Bollinger v. Natl. Fire Ins. Co., 25 Cal.2d 399 (Cal. 1944) (disfavored nature of plea in abatement; equitable relief where defendant delayed asserting prematurity)
- Radar v. Rogers, 49 Cal.2d 243 (Cal. 1957) (defect of prematurity may be disregarded if cured before defendant raises it)
- Virgin v. State Farm Fire & Cas. Co., 218 Cal.App.3d 1372 (Cal. Ct. App. 1990) (prematurity cured before motion supports reversal of summary judgment; equitable tolling may allow refiling)
- Gallo v. Superior Court, 200 Cal.App.3d 1375 (Cal. Ct. App. 1988) (§ 340.3 extends time to sue until one year after conviction for underlying felony)
- ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd., 5 Cal.App.5th 69 (Cal. Ct. App. 2016) (undisputed facts presenting purely legal question reviewed de novo)