SHIPPEY v. COUNTY OF SISKIYOU (1988)

This case involves an action brought by Myrtle Shippey (“plaintiff”) against Siskiyou County (“County”), County employees Coral Cooper and Darrell Foster, the City of Dunsmuir (“City”), the City's Chief of Police, John Rowland, and Mayme Poe.   Judgment dismissing Mayme Poe (“Poe”) was entered after her demurrer was sustained without leave to amend.   Judgment was entered for City and John Rowland (“Rowland”) after their motion for summary judgment was granted.   The demurrer of Coral Cooper (“Cooper”) to plaintiff's fourth cause of action was sustained without leave to amend.   A motion for summary judgment by the County, Cooper and Darrell Foster (“Foster”) was later granted and judgment for these defendants was entered on all causes of action.

 Plaintiff in this case appeals, and we shall consider, the judgments entered for defendants Poe, City, and Rowland.   Plaintiff also purports to appeal in this case from the ruling of the trial court sustaining the demurrer of Cooper to plaintiff's fourth cause of action.¹  In a companion case, Shippey v. County of Siskiyou, et al., No. C001451, plaintiff appeals the judgment entered for the County, Cooper and Foster after their motion for summary judgment was granted.   The judgment incorporated the ruling on Cooper's demurrer and the merits of such ruling are properly appealable in that case.   Nevertheless, in the interest of justice we shall address plaintiff's fourth cause of action in this opinion since for the most part the record necessary to review the trial court's ruling is contained in this case and both plaintiff and Cooper address the court's ruling in their briefs filed in this case.   The parties have not briefed the issues involved in the trial court's ruling on Cooper's demurrer in plaintiff's companion case even though the issues are properly raised only in that case.

BACKGROUND

Plaintiff was born on May 6, 1907, and has lived virtually her entire life in the City of Dunsmuir.   In May 1982 she was suffering from chronic crippling arthritis and an eye problem.   She underwent a cornea operation in early May 1982.   After her return to her home, plaintiff fell and could not move for a day.   She eventually was able to call to the person who brought her lunch from the Meals on Wheels program and her friends, Mayme and Delwin Poe, were contacted.   The Poes called for an ambulance and plaintiff was taken to Mount Shasta Community Hospital.

Dr. Jack Saunders admitted plaintiff to the hospital on May 19, 1982.   He had difficulty getting a history from her because her conversation wandered and she was confused.   Dr. Saunders concluded she had a possible organic brain syndrome, a mental disorder.   Indeed, plaintiff had multiple problems caused by noncompliance with her physician's orders.   She was dirty and covered with bruises and sores.   Dr. Saunders learned plaintiff's home was filled with garbage and cat feces.   While plaintiff was in the hospital, her primary treating physician, Dr. Carlstrom, diagnosed her as suffering from chronic depression in addition to her physical problems.

Plaintiff's situation was brought to the attention of Margaret Livingston, the discharge coordinator at the hospital.   Livingston began an investigation of plaintiff's situation.

Livingston talked to Mayme Poe.   Poe told Livingston that she should have plaintiff “put away” because she was not mentally and physically able to care for herself.   Plaintiff's home was very unpleasant with an odor of cat feces and urine.   It was filled with unbelievable clutter.   Poe stated plaintiff slept sitting up on her couch.   The couch was piled with debris to the extent plaintiff could not lie down on it.

Livingston interviewed plaintiff.   Plaintiff told Livingston she wanted to go back home and live alone.   Plaintiff admitted, however, she was unable to perform the activities of daily living and she was not able to care for her physical ailments.   The sanitary condition of her home was a complicating factor.  (Plaintiff admits the interior of her house had been badly upset since February of 1978 and she was actually ashamed of the condition of the house since it began going downhill.   Plaintiff did not have running water in the house without going outside and turning on the main valve.   This was quite a chore for plaintiff.   Her toilet in her one bathroom was not operating.   There were cat feces in the bathtub in her bathroom.   There were two dead cats in the house wrapped in plastic bags.   They had been there for at least two years.   There was paper, debris and garbage scattered over the floor of the house.)   During her interview with plaintiff Livingston found symptoms of a mental disorder, and she concluded plaintiff was not taking adequate care of herself at home because of her mental state and physical condition.

Livingston contacted Coral Cooper, a Siskiyou County social worker, sometime between May 20, 1982, and May 22, 1982, and told her of plaintiff's physical and mental problems and of her belief that plaintiff's health would be endangered if she returned home.   Livingston also contacted Darrell Foster, a continuing care coordinator with the Siskiyou County Department of Mental Health.   Both Cooper and Foster began investigations of plaintiff's situation.

Meanwhile, Livingston called plaintiff's neighbors, Les and Mary Schafer, to request them to take plaintiff to a doctor's appointment in Redding.   They agreed.   When they arrived at the hospital to pick plaintiff up, they were told she was being discharged and they were to take her home after the appointment.   On the way home, however, plaintiff told the Schafers she did not have a key to her house and she did not know what to do.   The Schafers offered to let plaintiff sleep that night in their basement which they had fixed up for visits by their grandchildren.   Plaintiff ended up staying with them until June 1, 1982.   Lennie Austin from the Visiting Nurses Association visited plaintiff at the Schafers' home to take care of plaintiff's eye.

It was very difficult, however, for the Schafers to have plaintiff stay in their home.   Mr. Schafer had had two previous heart attacks and the Schafers worried it was too much for him to be picking plaintiff up out of bed and helping her to the bathroom at all hours of the day and night.   The Schafers did not feel they could take care of plaintiff for any extended time and they wanted some arrangements to be made for her care.   They requested Cooper's assistance in making arrangements for plaintiff's care.

As previously mentioned, Cooper was already investigating plaintiff's situation.   Cooper went to plaintiff's home.   She also talked to the police dispatcher in Dunsmuir.   The dispatcher indicated plaintiff was considered crazy and had been a problem in the community for years.

On May 28, 1982, Cooper received a telephone call from Foster who had also been investigating plaintiff's situation.   Foster had visited plaintiff's home and by looking through the windows saw it was in a horrible mess.   Foster had also spoken with various people regarding plaintiff, including Dunsmuir Chief of Police Rowland and Mayme Poe.   Poe had confirmed Foster's view of the condition of plaintiff's home.   Poe had been inside the home to look after plaintiff's cats when plaintiff was in the hospital.   Chief Rowland had told Foster he was aware of a long-standing problem involving plaintiff's inappropriate behavior and a lack of cleanliness in the home.   Cooper and Foster discussed whether plaintiff should be detained for an evaluation under Welfare and Institutions Code section 5150 (hereafter “section 5150”).²

Cooper concluded the Schafers were no longer able or willing to care for plaintiff and that plaintiff, because of her mental state, was unable to make the decisions needed to care for herself.   Foster also concluded plaintiff had a mental disorder and was a danger to herself.   Cooper called the Dunsmuir Police Department to request they stand by ready to do a section 5150 detention if further investigation showed it was appropriate.

On June 1, 1982, Chief Rowland went to plaintiff's house.   He had known plaintiff for years.   He was aware her house was a total mess with garbage all over it leaving just a pathway through the living room.   The house had a very bad odor.   Cooper met Rowland at plaintiff's house on June 1st.   By arrangement through Poe, the Schafers then brought plaintiff to her home in her wheelchair.   Chief Rowland talked to plaintiff on her front porch.   He could see the garbage inside her house from the porch and a stench was coming from the house.   He asked plaintiff if there was anybody she could live with until her eye condition was better.   Plaintiff replied there was not.   Plaintiff was determined to go into the house and she did not want anybody to care for her.   Poe unlocked the front door and Cooper asked plaintiff if she could enter the house.   Plaintiff did not answer.   Cooper then asked Poe for permission to enter the house and Poe indicated it was all right to go inside.   Cooper entered plaintiff's home and concluded no sane person would live in a house in its condition.

Based on Rowland's observations of plaintiff and her house, plaintiff's responses to his questions, and the information provided by Cooper and Foster, Rowland determined plaintiff was a danger to herself and he detained her under section 5150.   Rowland called an ambulance to take plaintiff to the hospital for evaluation.   Rowland considered plaintiff to have a mental disorder but felt it was up to a doctor to actually determine if he was correct.

Plaintiff was admitted to Siskiyou General Hospital as the emergency room physician concluded plaintiff needed an involuntary admission.   Dr. Edgar Brichta, a psychiatric consultant to the County, then evaluated plaintiff to determine whether there was need for a further involuntary hold and treatment.   He determined plaintiff had some physical problems but he really could not find a psychiatric need to hold her involuntarily.   Dr. Brichta later conceded he was seeing the situation from plaintiff's side when she told him what she was willing and able to do.   He did not talk to Cooper or to plaintiff's treating physicians, Drs. Carlstrom and Saunders.   He did not bother to see the condition of her home.   He acknowledged there was lots of information about her home that was distressing and he believed the section 5150 detention was appropriate when he listened to sources other than plaintiff.   Dr. Brichta also admitted reasonable minds among qualified physicians could differ over whether plaintiff was suffering from a mental disorder.   When he reviewed photographs of plaintiff's home, he agreed it was reasonable for a lay person to conclude a person who lived there under those conditions was suffering from some form of mental disorder.   Dr. Brichta admitted the information Rowland had about plaintiff's reputation in the community and about her eccentric behavior could lead a reasonable lay person to believe she had a mental disorder.

On June 4, 1982, the date plaintiff was to be released from the 72–hour hold under section 5150, the district attorney initiated temporary conservatorship proceedings for plaintiff.   On that same day, the district attorney, who was also the Siskiyou County public guardian, was appointed temporary conservator for plaintiff's person and estate.   Plaintiff remained in the Siskiyou General Hospital until June 19, 1982, when she was transferred to a convalescent home.   She remained in care outside of her home until either October 12 or 16, 1982.

During the time plaintiff was absent from her house, Rowland, the district attorney/public guardian and his investigator went into plaintiff's house.   They used “Scott air packs” as breathing devices because the odor in the house was so sickening.   Plaintiff's residence was condemned by the City.

Plaintiff's conservator, the district attorney/public guardian, arranged to have plaintiff's house cleaned and repaired to make it habitable.   During the cleaning process, plaintiff's bed, mattress, springs and sofa were discarded.   They were saturated with urine to the point the mattress had adhered to the springs and the sofa had stuck to the floor.   All of plaintiff's rugs were discarded as they were rotting and were maggot-infested due to the dead animals in various stages of decomposition left in the house.   The food left in plaintiff's refrigerator and in her freezer was given by the public guardian to Poe for use at the Humane Society.   A number of Presto Logs and an amount of coal was removed from plaintiff's basement as the building inspector considered their manner of storage to be a fire hazard.   Plaintiff's furniture and property were valued and the smaller knick-knacks, pictures, photographs, dishes, jewelry and coins were boxed and stored.   Plaintiff was informed of these actions in September 1982 by a letter from the deputy public guardian.

On approximately October 16, 1982, plaintiff was able to return to her home.   Her conservator, the public guardian, hired a housekeeper for plaintiff, arranged for the visiting nurses association to send a nurse to plaintiff's home while it was necessary, and saw to the payment of plaintiff's bills.

On October 19, 1983, the public guardian filed his “First and Final Account and Report of Conservator ․ and Petition for Termination of Conservatorship and for Discharge of Conservator.”   On December 15, 1983, plaintiff, through her attorney, stipulated that the conservatorship be terminated and the acts and accounts of the conservator be approved, with the understanding that the court would not lose jurisdiction over the matter in the event that assets were found missing or misused, which were sufficiently substantial to request further review by the court.   This stipulation was presented to the superior court on December 19, 1983, and a hearing was scheduled for May 14, 1984, for the court to consider the first and final account and report of the conservator.   Plaintiff was given until the date of the hearing to file any objections to the final account and report.

On February 14, 1984, plaintiff presented a tort claim to the Siskiyou County Board of Supervisors asserting that on July 14, 1982, plaintiff was placed under conservatorship and after that time, kept away from her home and confined without reason and against her will in a rest home in another community.   When she was confined, her personal and real property was stolen, lost and destroyed.   Plaintiff claimed the County negligently and intentionally inflicted emotional stress on her, falsely imprisoned her, and negligently allowed the destruction of her personal and real property.   Plaintiff's tort claim alleged her conservatorship ended on November 7, 1983.   Plaintiff's tort claim was denied on March 13, 1984.

Plaintiff did not file any objection to the conservator's final account and report with the Siskiyou County Superior Court and the court approved the account and report, granted the petition as prayed and discharged the conservator upon the filing of receipts from plaintiff.

On September 6, 1984, plaintiff filed the lawsuit which is the basis for this action.   Plaintiff's original complaint named as defendants the County, Cooper, Foster, the City and Does I through 20.   The complaint alleged three causes of action—two for negligence and one for deprivation of plaintiff's civil rights under 42 United States Code section 1983.

We shall add further procedural details of plaintiff's lawsuit as needed in our discussion.

DISCUSSION

A. Plaintiff's Action Against Poe.

Plaintiff's first cause of action in her complaint is for negligence.   Plaintiff named as defendants the County and Does 1 through 10.   Plaintiff alleges that during the course of administering plaintiff's conservatorship the public guardian so negligently cared for plaintiff's personal property that specific items were damaged and others were lost.   Plaintiff alleges the public guardian fraudulently concealed the personal property loss and purposely omitted the fact of the loss from the public guardian's final report.

Plaintiff's second cause of action is also for general negligence.   In it plaintiff named the County and Does 1 through 10 as defendants.   The second cause of action incorporates the allegations of the first cause of action and alleges that the defendants from June 4, 1982, until May 14, 1984, negligently administered plaintiff's conservatorship and plaintiff, as a proximate result of the defendants' acts and the consequential deprivations and indignities she was forced to endure, suffered profound shock to her nervous system resulting in aggravation of her chronic and disabling arthritic condition and her orthopedic and opthalmological problems.   Plaintiff alleges she suffered serious mental anguish and emotional distress.

The third cause of action pleaded in plaintiff's original complaint named as defendants Cooper, Foster, the County, the City and Does 10 through 20.   This cause of action alleges a deprivation of plaintiff's civil rights under section 1983 of title 42 of the United States Code (hereafter “section 1983”).   The factual basis for the cause of action originally pleaded was defendant's allegedly wrongful seizure of plaintiff and removal of her from her home on June 1, 1982, her detention at the Siskiyou General Hospital until June 4, 1982, and the search of her residence on June 1, 1982.

Poe was not a named defendant in plaintiff's original complaint filed on September 6, 1984.   On October 21, 1985, plaintiff substituted Poe for Doe 2 in her complaint.  (Code Civ.Proc., § 474.)   Poe demurred.

On January 14, 1986, plaintiff filed an amendment to her complaint.  (Code Civ.Proc., § 472.)   She amended her first and second causes of action to name as defendants Does 3 through 20, deleting Does 1 and 2.   By this action plaintiff dismissed Poe who had been served as and substituted for Doe 2.  (Schlake v. MacConnell (1924) 69 Cal.App. 207, 209, 230 P. 974.)   At the same time plaintiff amended her third cause of action to add Poe as a named defendant.   She alleged that on or about June 1, 1982, and until the time when she was allowed to return to her residence, defendants wrongfully and unlawfully, at various times, entered and searched her residence and Poe took her personal property.   Plaintiff then added a fourth cause of action labeled “Welfare and Institutions Code § 5150 Liability.” ³  Plaintiff incorporated the allegations of her third cause of action in full and alleged Poe and Cooper intentionally and knowingly gave false statements to Rowland and Foster concerning plaintiff and her mental condition.

Poe filed a second demurrer to plaintiff's amended complaint on the grounds plaintiff's action against her in the third and fourth causes of action was barred by the statute of limitations and the allegations were uncertain.  (Code Civ.Proc., § 430.10, subds. (e) and (f).)   Plaintiff responded by filing a second amendment to her complaint adding a general allegation that plaintiff was prevented between June 1, 1982, and May 14, 1984, from commencing any action because plaintiff was subject to a statutory conservatorship.

The trial court refused to consider plaintiff's second amendment to her complaint as it had been filed without leave of court and the court sustained Poe's demurrer with leave to amend.   Plaintiff again amended her complaint to allege she was prevented from commencing any action against defendants between June 1, 1982, and May 14, 1984, because of her conservatorship.   Plaintiff again included Poe as a named defendant in her third cause of action.   She added allegations that Poe acted in concert and connived with the other named defendants in her wrongful detention on June 1, 1982, and that between June 1 and October 1982, Poe took her personal property.   Plaintiff realleged her fourth cause of action for civil liability under section 5150.

Poe filed another demurrer to plaintiff's amended complaint.   Poe again asserted plaintiff's third and fourth causes of action against her were barred by applicable statutes of limitations.   The trial court agreed and sustained Poe's demurrer without leave to amend.   Judgment dismissing plaintiff's action against Poe was filed September 24, 1986, and plaintiff timely appealed to this court.

On appeal plaintiff contends her third and fourth causes of action are not time-barred because (1) her amendment to her complaint naming Poe as a defendant in her third and fourth causes of action relates back to her original filing of her action in September 1984, and (2) the applicable statutes of limitations were tolled pursuant to Code of Civil Procedure section 356 because of her conservatorship.   Only plaintiff's second contention has merit.

Initially we start our analysis by determining the statute of limitations applicable to plaintiff's causes of action and the time of accrual of those causes of action.

 There is no limitations period provided by federal statute for section 1983 actions.  (Board of Regents v. Tomanio (1980) 446 U.S. 478, 483, 100 S.Ct. 1790, 1794, 64 L.Ed.2d 440, 447.)   The settled practice, therefore, is to adopt a local time limitation as federal law, provided it is not inconsistent with federal law or policy to do so.  (Wilson v. Garcia (1985) 471 U.S. 261, 266–267, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254, 260.)   In Wilson the United States Supreme Court held section 1983 claims are best characterized as personal injury actions and local “personal injury” statutes of limitation should be adopted for the limitation of section 1983 actions.  (Id., at p. 279, 105 S.Ct. at p. 1949, 85 L.Ed.2d at pp. 268–269.)   California's general personal injury statute of limitation is Code of Civil Procedure section 340, subdivision (3) providing a one-year limitations period.

The Ninth Circuit Court of Appeals has held, however, Wilson should only be applied retroactively to give a plaintiff the benefit of a longer period of limitations.  (Rivera v. Green (9th Cir.1985) 775 F.2d 1381, 1383–1384;  Parker v. Superior Court (1985) 175 Cal.App.3d 1082, 1090–1091, 223 Cal.Rptr. 292).   Since prior to Wilson the Ninth Circuit Court of Appeals applied California's three-year statute of limitation for liabilities created by statute (Code Civ.Proc., § 338, subd. (1)) to section 1983 actions (Smith v. Cremins (9th Cir.1962) 308 F.2d 187, 190), Wilson should not be applied retroactively to shorten plaintiff's time to file an action.   (Parker v. Superior Court, supra, 175 Cal.App.3d at p. 1091, 223 Cal.Rptr. 292.)   A three-year statute of limitation would thus apply to plaintiff's third cause of action.

 Under federal law, a cause of action accrues when a plaintiff knows or has reason to know of the injury which is the basis of his or her action.  (Cline v. Brusett (9th Cir.1981) 661 F.2d 108, 110.)   Plaintiff here would certainly have known of her detention under section 5150 when it occurred and would have known or had reason to know of her property loss when she returned to her house in October of 1982.   Plaintiff's third cause of action, therefore, accrued no later than October 1982 and her action against Poe must have been commenced by October 1985 to avoid the statute of limitations.⁴

Plaintiff's fourth cause of action alleges Poe's liability for damages to plaintiff as the result of her knowingly and intentionally giving false statements to Foster and Rowland regarding plaintiff's mental condition causing them to detain plaintiff pursuant to section 5150.   Plaintiff's cause of action is predicated on the portion of section 5150 that provides:  “If the probable cause is based on the statement of a person other than the officer, member of the attending staff, or professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.”

Code of Civil Procedure section 338, subdivision (1) provides a statute of limitation of three years for actions based upon a liability created by statute.   Plaintiff was detained pursuant to section 5150 on June 1, 1982.   From plaintiff's pleadings, it appears plaintiff's cause of action accrued at least by that date, giving her until June 1, 1985, to file her fourth cause of action.

Plaintiff contends her third and fourth causes of action were commenced against Poe within the applicable statutes of limitations, even though Poe was first named as a defendant in the third cause of action and plaintiff's fourth cause of action was first added in January 1986, because plaintiff's allegations against Poe “relate-back” to the filing of her original complaint in September 1984.  (See Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681.)   Plaintiff also claims Code of Civil Procedure section 356 is applicable to her action against Poe, making her action timely filed.   We agree with plaintiff's latter contention and so do not reach plaintiff's contention regarding “relation-back.”

Code of Civil Procedure section 356 provides:  “When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.”

Probate Code section 1872, subdivision (a) provides “․ the appointment of a conservator of the estate is an adjudication that the conservatee lacks the legal capacity to enter into or make any transaction that binds or obligates the conservatorship estate.”  Section 1870 of the Probate Code defines transaction to include, but not to be limited to, “making a contract, sale, transfer, or conveyance, incurring a debt or encumbering property, making a gift, delegating a power, and waiving a right.”

The exceptions to the restriction of a conservatee's legal capacity found in section 1872 are listed in Probate Code section 1871.   Section 1871 provides:  “Nothing in this article shall be construed to deny a conservatee any of the following:  [¶] (a) The right to control an allowance provided under Section 2421.  [¶] (b) The right to control wages or salary to the extent provided in Section 2601.  [¶] (c) The right to make a will․  [¶] (d) The right to enter into transactions to the extent reasonable to provide the necessaries of life to the conservatee and the spouse and minor children of the conservatee.”  Probate Code section 1871 does not list the capacity to sue and be sued as one of the exceptions to section 1872.

Indeed, the Assembly Legislative Committee comment to section 1872 states, inter alia, “[o]ther consequences of appointing a conservator are that court proceedings must be conducted through the conservator or a guardian ad litem․”  (Legis. Committee com.—Assembly, West's Annot.Prob.Code (1981 ed.) § 1872, p. 193.)   This comment is confirmed by Code of Civil Procedure section 372 which specifically states, in pertinent part:  “When ․ a person for whom a conservator has been appointed is a party, such person shall appear either by a ․ conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceedings is pending, or by a judge thereof, in each case.”

 Of course a conservatee may petition the probate court for an order modifying his or her legal capacity.  (Prob.Code, §§ 1873, 1874), and a conservator may file an action on the conservatee's behalf.⁵  (Prob.Code, § 2462.)   This does not alter our conclusion that during the period when a person is subject to a conservatorship and no order modifying the legal capacity of the conservatee has been entered and no action by the conservator has been instituted on the conservatee's behalf, the conservatee is under a statutory prohibition from commencing a civil action.⁶  A statute of limitations will not run during this period.  (Code Civ.Proc., § 356.)

We conclude plaintiff was prevented from commencing her action against Poe during the period of her conservatorship.  (Code Civ.Proc., § 356.)   Excluding the period of plaintiff's conservatorship from the three-year periods of limitation applicable to plaintiff's third and fourth causes of action, we conclude plaintiff's action against Poe was timely filed in January 1986.   The trial court erred in sustaining Poe's demurrer and we shall reverse the judgment dismissing plaintiff's action against Poe.

B.–C.***

DISPOSITION

The judgment for defendants City and Rowland is affirmed.   The judgment (order) for Cooper on plaintiff's fourth cause of action is affirmed.   The judgment for defendant Poe is reversed.   Each party shall bear its own costs on appeal.

I concur in all of the majority opinion except the part holding that the statute of limitations was tolled under the provisions of Code of Civil Procedure section 356.

Without any historical analysis or justification and contrary to the statutory scheme, the majority mistakenly concludes that the statute of limitations was tolled by this section during the time plaintiff was under a conservatorship.   For the first time since its enactment 116 years ago, the majority today rules that the mere fact a conservatee could not bring an action in her own name is somehow a statutory prohibition, within the meaning of the section, against the commencement of the action itself.   This is true, we are told, even though at all relevant times plaintiff had a conservator who was legally authorized to commence the suit on her behalf.   I dissent from this misconstruction of the statute.

The majority reasons that because plaintiff was statutorily prohibited from bringing this action in her own name during the time she was a conservatee, the statute of limitations was tolled under the provisions of Code of Civil Procedure section 356.   This statute provides:  “When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.”  (All further undesignated statutory references are to this code.)

But no statute prohibited the commencement of this action for negligence and violation of civil rights.   It is true that plaintiff herself lacked capacity to bring the action in her own name.  (See § 372;  Prob.Code, § 1872, subd. (a).)  But her conservator was vested with that right and hence could have brought the action on her behalf.  (§ 372:  Prob.Code, § 2462, subd. (a).)  Thus, the commencement of this action was not “stayed by ․ statutory prohibition․”  (§ 356.)

If a lawsuit may be commenced by a plaintiff in her own name or by a representative on her behalf, the “action” simply cannot be deemed “stayed by ․ statutory prohibition.”   The dispositive question is whether the action itself may be commenced, not in whose name it must technically be brought.   Section 372, the statute governing representative appearances, merely mandates that “[w]hen a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, such person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.”   This section obviously presupposes the right to commence an action on behalf of the youthful or incompetent person.   But the disabled litigant is still the party and it is her cause of action that is being commenced and litigated.   As the high court has explained, a “guardian ad litem, however, is not a party to an action or proceeding, but only a representative of a party, just as an attorney of record is not a party.”   (In re Marriage of Higgason (1973) 10 Cal.3d 476, 484, 110 Cal.Rptr. 897, 516 P.2d 289.)   Since the action of a disabled party may be brought by a representative, its commencement is clearly not prohibited by statute.

A personally disabled claimant may be and usually is protected against the running of limitation period by other statutes.   But it is to those other statutes that the tardy plaintiff must look, not to section 356.   As we shall see, nothing in the history of section 356 even remotely suggests that it was intended to apply to personal disabilities such as minority or incompetency.   Moreover, such a construction is inconsistent with the statutory and decisional law governing those disabilities.

I begin with the history of the statute.  Section 356 was enacted in 1872 when California first codified its laws and has not been amended since.   It has traditionally been applied when all persons of a designated class, regardless of their individual capacity, are prohibited by some statute from commencing a lawsuit.   Thus, for example, in the early case of Hoff v. Funkenstein (1880) 54 Cal. 233, 235, the California Supreme Court held that where the right to maintain an action on a promissory note has been suspended by the pendency of the debtor's bankruptcy proceedings, the statute mandates that the period of suspension is not to be counted as “part of the time limited for the commencement of the action.”  (§ 356;  see also Wells v. California Tomato Juice, Inc. (1941) 47 Cal.App.2d 634, 637–638, 118 P.2d 916.)   But it is the statutory prohibition which is critical, not the personal disability of the putative plaintiff.   This point is illustrated in the early case of Crosby v. Dowd (1882) 61 Cal. 557.   There the defendants in an ejectment suit contended that plaintiff's action was barred by the statute of limitations.   The claim was that the minor plaintiff inherited an interest in the property upon the death of her father in March 1859 and thus as an heir was entitled to bring an action for its possession.   Under a former statute, an heir could not bring an action for the recovery of real property during the administration of the estate.   Thus, the statute was tolled during the administration period under section 356 because an heir was statutorily barred from commencing an action for ejectment.  (Id., at p. 600.)   But under a new statute effective on January 1, 1873, the heirs either by themselves or jointly with the executor or administrator were authorized to maintain an action for the possession of real property.   The argument was that the statute began to run against plaintiff on January 1, 1873, because the statutory prohibition against the maintenance of an action for the recovery of real property by an heir had been removed by the new statute as of that date.   The court concluded that even if the statute had commenced running on that date, plaintiff's action had still been timely filed.   Alternatively, the court held that in any event plaintiff was saved by provisions of 328.   This statute provided then as it does today that if the person entitled to bring an action for the recovery of real property was a minor at the time title first descends, the action may be commenced “within the period of five years after such disability shall cease, ․”  Thus, the court ruled that “the plaintiff's rights were saved by the provisions of Section 328 of the Code of Civil Procedure, and that she was lawfully entitled to the period of five years after attaining her majority within which to assert them.”  (Id., at p. 601.)   The important point is that the statute of limitations was tolled by plaintiff's minority and not by any claimed “statutory prohibition” against the commencement of an action under section 356.

Section 356 then has historically been applied only when all potential plaintiffs falling within a statutory class are prohibited from maintaining an action.   Thus, when a statute prohibits an action on a claim against an estate until 10 days after its presentation to a judge, the statute of limitations under section 356 does not run against the claim between the date of its presentation to the executor and its rejection by the judge.   (Nally v. McDonald (1885) 66 Cal. 530, 532, 6 P. 390.)   Similarly, the running of the statute is tolled under section 356 during the pendency of a claim against a public entity when the presentation of a claim is a prerequisite to commencing a lawsuit.  (Cal. Cigarette Concessions v. City of L.A. (1960) 53 Cal.2d 865, 868, 3 Cal.Rptr. 675, 350 P.2d 715.)   Likewise, when the city charter requires an application to a municipal board before suit may be filed, the running of the statute is tolled during the period the claim is pending before the board.  (Dillon v. Board of Pension Commrs. (1941) 18 Cal.2d 427, 431, 116 P.2d 37.)   The rationale of these claims cases “is that the statute does not run during the time plaintiff is legally prevented from taking action to protect his rights;  until the required claim is filed, the plaintiff may not file suit against a public entity.”   (Banfield v. Sierra View Local Dist. Hospital (1981) 124 Cal.App.3d 444, 456, 177 Cal.Rptr. 290.)

Other typical examples are the prohibitions against suits found in the federal bankruptcy act, in the Soldiers' and Sailors' Civil Relief Act and in the Wartime Suspension of Limitations Act.  (See 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, §§ 500–502, pp. 527–529.)   A more recent example involves the statute requiring 90 days' notice of intent to sue a health care provider for professional negligence.  (§ 364.)   It has been repeatedly held that the 90–day notice requirement is a statutory prohibition within the meaning of section 356 and hence the statute of limitations is tolled during the notice period.  (See e.g., Grimm v. Thayer (1987) 188 Cal.App.3d 866, 870–871, 233 Cal.Rptr. 687;  Gilbertson v. Osman (1986) 185 Cal.App.3d 308, 317, 229 Cal.Rptr. 627;  Gomez v. Valley View Sanitorium (1978) 87 Cal.App.3d 507, 510, 151 Cal.Rptr. 97.)

But all of these cases construing section 356 have involved situations where the commencement of a lawsuit by anyone, whether personally or by a representative, was barred by a statute.   None of them involved a putative plaintiff who was merely personally disabled because of his age or mental status.  Section 356 does not appear to deal with the capacity of a putative plaintiff and the majority has cited nothing which suggests that it does.   Tolling for individual lack of capacity, such as minority, insanity or imprisonment, is governed by a separate statute.  Section 352, for example, provides that “If a person entitled to bring an action, mentioned in Chapter 3 of this title, be, at the time the cause of action accrued, either:  [¶] 1. Under the age of majority;  or [¶] 2. Insane;  or, [¶] 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life;  [¶] the time of such disability is not a part of the time limited for the commencement of the action.”

If the majority's interpretation were correct, there would be no need to have a special statute tolling the limitation period for a minor or an insane person.   Since by statute a minor or insane person cannot sue in his own right and must have a guardian or other representative (§ 372;  Civ.Code, § 33), the majority would read section 356 to toll the statute in all cases of minority or insanity.   Such a construction would render the provisions of section 352 superfluous.   Obviously, if mere statutory incapacity to bring a lawsuit in one's own name tolls the statute, why would the Legislature have enacted a separate but pointless tolling provision for injured parties who are “[u]nder the age of majority,” or “[i]nsane”?  (§ 352.)   A construction of one statute which renders another superfluous ought to be rejected under the settled rules of statutory construction.  “It is a well established rule of statutory construction that every word, phrase or provision is presumed to have been intended to have a meaning and perform a useful function.”  (Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 334, 136 Cal.Rptr. 421;  citations omitted.)   Under the majority's misconstruction of section 356, the personal disabilities under section 352 perform no function at all.

The majority recognizes in a footnote that the general rule is that when the right to bring an action is vested in a trustee or other representative, the statute of limitations will run despite the personal disability of the beneficial owner of the right.   As the majority further notes, there is an exception to this general rule.   In the words of Witkin, “it has been squarely held that the statute does not run against the ward during guardianship, since the cause of action is held by the minor and not the guardian.”  (3 Witkin, supra, § 490, pp. 518–519.)   Both the majority and Witkin cite to Aronson v. Bank of America (1941) 42 Cal.App.2d 710, 109 P.2d 1001, and Gottesman v. Simon (1959) 169 Cal.App.2d 494, 337 P.2d 906, in support of this exception.   In Aronson, the defendants argued that the statute of limitations barred the action because the minor plaintiffs had a general guardian at all relevant times and consequently the statute ran against them.   Plaintiffs countered by arguing that the statute of limitations was tolled during their minority and relied upon section 352.   The reviewing court held that “the existence of a general guardian had no effect upon the tolling of the statute during minority under section 352, Code of Civil Procedure, ․” (Id., 42 Cal.App.2d at p. 720, 109 P.2d 1001.)   The court went on to say:  “It is clear that the cause of action herein accrued to [the minors] and that it is generally held that the appointment of a general guardian has no effect upon the tolling of the statute of limitations as to a cause of action accruing to or ‘vesting’ in a minor.”  (Ibid.)

Gottesman involved insanity.   Plaintiff was involved in an accident which rendered him incompetent.   He was later adjudicated incompetent in a guardianship proceeding and a guardian was appointed.   He later recovered and brought an action against the tortfeasor.   The defendant was improperly permitted to introduce evidence that plaintiff had recovered his sanity before his restoration of sanity had formally been adjudicated in the guardianship proceedings.   The court held that the adjudication of incompetency was conclusive as to the question of whether plaintiff was insane within the meaning of section 352.   Consequently, plaintiff's action was not barred where he was not judicially restored to competency until about six months prior to filing the action.   The Gottesman court went on to state:  “Since the right of action vests in the ward, it is not affected by the failure of the guardian to sue within the prescribed time.”  (Id., at pp. 502–503, 337 P.2d 906.)

Neither of these cases even mentions section 356, much less any claimed stay by statutory prohibition.   The courts did not say that because minors and insane persons could not bring actions in their own name, the commencement of the action was stayed by statutory prohibition and consequently the statute was tolled under section 356.   Just the opposite.   They simply stand for the proposition that if the statute of limitation is tolled under section 352 because the injured party is a minor or insane, it does not begin to run just because a guardian has been appointed for the disabled person.   Stated another way, the creation of a guardianship does not effect the tolling rights of minors and insane persons under section 352.   So long as the claimant remains a minor or insane, the statute is tolled by section 352 and does not start to run until that disability is over.   But this is not because the minor or insane person's action is barred by statute.   The minor's cause of action, for example, may be filed by his representative anytime after its accrual.   Thus, it is not the commencement of an action that is statutorily barred during his minority;  it is rather the running of the statute of limitations which is stopped.   The majority confuses this distinction and thus mixes the apple of justiciability with the orange of tolling.

It may well be that plaintiff's causes of action were tolled during her conservatorship on grounds of insanity.¹  But plaintiff does not claim in this appeal that she was insane within the meaning of section 352 or that the statute should have been tolled on that ground.   Her sole claim is based upon section 356 and her assertion that “she was legally prohibited to bring suit against those who allegedly caused her damages because of her involuntary probate conservatorship․”   In my view, since no statute prohibited the institution of her suit by her conservator, the claim should fail.

In addition to lacking any historical foundation, the majority's construction of the statute is also inconsistent the statutory scheme.   We have seen that the majority's construction of section 356 would apply to minors as well as incompetents because both are prohibited by statute from suing in their own right.   Under the majority's reading, anytime a putative plaintiff lacks authority to sue in his own name, the commencement of the action would be deemed stayed by a statutory prohibition within the meaning of section 356.   Yet this construction flies in the face of the special statutes governing tolling for personal disabilities.   For instance, the tolling for minority, insanity or imprisonment under section 352 does not, by its very terms, “apply to an action against a public entity or public employee upon a cause of action for which a claim is required to be presented․”  (§ 352, subd. (b).)  As the comment of the Law Revision Commission makes clear, “Subdivision (b) has been added so that Section 352, which operates to toll the statute of limitations for minors, insane persons, and prisoners, will not apply to the causes of action against a public entity or public employee described in this subdivision.   Such actions are governed by the period of limitations specified in subdivision (a) of Section 945.6 of the Government Code.”  (See Cal.Law Revision Com. com., 13A West's Ann.Code of Civ.Proc., § 352, p. 572.)   Thus, actions against public entities by minors and incompetents are governed by special limitation periods.  (See e.g., Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020, 232 Cal.Rptr. 519, 728 P.2d 1154.)

There is also a special statute dealing with medical malpractice actions which imposes a specific time limit upon minors and incompetents.  (See § 340.5;  Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, 172 Cal.Rptr. 594.)   The majority would read these and other special statutory provisions out of the code by construing section 356 as applying to minors and incompetents.   Such a construction is impermissible as a matter of historical usage as well as a matter of statutory construction.   In light of modern revisions to the tolling statutes, such a construction is also inconsistent with the legislative scheme for personal disabilities.   The harm done by this construction is especially egregious here because when two or more disabilities are found to coexist, the statute does not begin to run until the last one is removed.   Thus, under section 358, “[w]hen two or more disabilities coexist at the time the right of action accrues, the limitation does not attach until they are removed.”   In my view, the majority's construction leaves the statute of limitations in shambles and needlessly casts doubt upon settled and elementary rules of repose.

Because I would hold that the statute of limitations was not tolled in this case by the provisions of section 356, I would affirm the judgment in its entirety.

FOOTNOTES

1.   Not only is the order sustaining Cooper's demurrer without leave to amend nonappealable, even a judgment entered dismissing the fourth cause of action as to Cooper would be nonappealable as violating the one final judgment rule.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, §§ 57, 82, subd. (b), pp. 78, 105.)

2.   Section 5150 provides:  “When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72–hour treatment and evaluation.  [¶] Such facility shall require an application in writing stating the circumstances under which the person's condition was called to the attention of the officer, member of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person has probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled.   If the probable cause is based on the statement of a person other than the officer, member of the attending staff, or professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.”

3.   See footnote 2, ante.

4.   Plaintiff in her brief on appeal asserts her third cause of action accrued on June 1, 1982.   Poe alleges plaintiff's cause of action accrued at least by October 1982.   We give plaintiff the benefit of the doubt.

5.   Where the right to bring an action is in a trustee or other representative, the general rule is the statute of limitations will run despite the disability of the beneficial owner of the right.  (3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 490, p. 518.)   This rule does not apply to a ward during guardianship as the cause of action is held by the ward not the guardian.  (Aronson v. Bank of America (1941) 42 Cal.App.2d 710, 720, 109 P.2d 1001;  Gottesman v. Simon (1959) 169 Cal.App.2d 494, 501, 337 P.2d 906.)   A similar analysis is applicable to conservatorships.

6.   Poe contends the appointment of a conservator is not necessarily a determination that the conservatee is insane or incompetent within the meaning of Code of Civil Procedure section 352.  (Baber v. Napa State Hospital (1984) 154 Cal.App.3d 514, 519, 201 Cal.Rptr. 432;  Schuck v. Myers (1965) 233 Cal.App.2d 151, 154, 43 Cal.Rptr. 215.)   We agree.   Poe then argues from this general principle that a conservatee does not lack the legal capacity to bring suit, citing Schuck v. Myers, supra, 233 Cal.App.2d 151, 43 Cal.Rptr. 215 and Board of Regents v. Davis (1975) 14 Cal.3d 33, 120 Cal.Rptr. 407, 533 P.2d 1047.   We cannot agree.   These cases were decided prior to the Legislature's enactment of Probate Code section 1872 in 1979, which specifically states a conservatee lacks legal capacity, and prior to the amendment of Code of Civil Procedure section 372 providing a conservatee must appear in an action by a conservator or guardian ad litem.  (Stats.1979, ch. 730, p. 2476, § 19, operative Jan. 1, 1981.)

FOOTNOTE.   See footnote *, ante.

1.   For purposes of the tolling statute, insanity has been broadly defined.  “As used in Code of Civil Procedure section 352, subdivision 2, the term ‘insane’ has been defined as a condition of mental derangement which renders the sufferer incapable of caring for his property or transacting business, or understanding the nature or effects of his acts.   This definition may include within its meaning a person who has been adjudicated mentally ill pursuant to the provisions of the Welfare and Institutions Code, but such an adjudication is not a conclusive judicial determination that he is an insane person.”  (Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562, 571–572, 66 Cal.Rptr. 659, citations omitted;  accord, DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1027, 242 Cal.Rptr. 368.)

MARLER, Associate Justice.

CARR, Acting P.J., concurs.