Filed 1/8/18
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION EIGHT


NELS RASMUSSEN et al.,                B277635

       Plaintiffs and Respondents,    (Los Angeles County
                                      Super. Ct. No. BC442329)
       v.

STEPHANIE LAZARUS,

       Defendant and Appellant.




     APPEAL from a judgment of the Superior Court of Los
Angeles County. Elizabeth Allen White, Judge. Affirmed.



     Law Offices of Overland & Overland, Mark E. Overland
and Courtney Overland for Defendant and Appellant.



      Taylor & Ring, John C. Taylor and Sonya Ostovar for
Plaintiffs and Respondents.
                   __________________________
       This appeal presents a unique opportunity to apply plea
of abatement and statute of limitations principles to a
wrongful death lawsuit based on a cold case murder. Code of
Civil Procedure section 340.3, subdivision (a) provides that “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.” 1 The civil case under review seeks vindication
for a 31-year-old murder. The parents of the murder victim,
Nels and Loretta Rasmussen, brought suit against defendant
Stephanie Lazarus, the killer of their daughter Sherri. 2 The
Rasmussens filed their action after defendant had been
arrested, but before her criminal trial. Defendant was
convicted while this action was pending. Four years after the
conviction, with the civil case still in pretrial, defendant
moved to dismiss the case on the basis that the lawsuit had
been filed before, not after, her conviction and hence could not
fall within section 340.3, subdivision (a)’s authorization. The
trial court denied the motion and ultimately entered judgment
in plaintiffs’ favor. On appeal, defendant again raises her
argument that the lawsuit was prematurely filed and could
not go forward.
       We affirm, on three related grounds: (1) defendant
waived prematurity by not timely raising it; (2) any


1     All statutory references are to the Code of Civil Procedure.

2     From time to time we refer to the decedent as Sherri to
avoid confusion with other family members. We intend no
disrespect.



                                 2
prematurity was cured by the time defendant raised the issue
in her motion to dismiss; and (3) by law, the equities support
disregarding defendant’s prematurity plea in abatement.
       FACTUAL AND PROCEDURAL BACKGROUND
      Sherri was murdered, in her home, on February 24, 1986.
She had recently been married. Her parents suggested that
police investigate Sherri’s husband’s former girlfriend, who had
previously stalked Sherri. The Rasmussens did not know the
name of the former girlfriend, but were aware that she was a Los
Angeles Police Department officer. For reasons which the
Rasmussens allege to be either incompetence or a malicious
desire to protect one of their own, the LAPD failed to investigate
the former girlfriend. Law enforcement instead pursued the
theory that Sherri’s murder had been a burglary gone wrong; the
police suspects were two unidentified males who had burglarized
a nearby home.
      The investigation went cold. In 2005, nearly 20 years after
the murder, DNA from a bite mark on Sherri’s body was tested; it
came back female. In 2009, the LAPD reopened the investigation
and finally focused on Sherri’s husband’s ex-girlfriend, defendant
Stephanie Lazarus, who was by then an LAPD detective.
Investigators secretly obtained DNA sample from Lazarus, and
matched it to the DNA from the bite mark. Lazarus was arrested
in June 2009 and, six months later was charged with Sherri’s
murder.
      On July 26, 2010, the Rasmussens brought this wrongful
death action against Lazarus. 3 On February 7, 2011, Lazarus

3      The Rasmussens also sued the City, for violation of their
civil rights and related causes of action. The action against the
City was dismissed on statute of limitations grounds; we affirmed



                                3
answered, raising the affirmative defense of the two-year
wrongful death statute of limitations. (§ 335.1.) In her
pleadings, she did not rely upon, or otherwise identify, the special
statute of limitations for actions against defendants convicted of
felonies. (§ 340.3.) Nor did she raise a defense founded on the
Rasmussens’ claim being premature.
        Lazarus’s criminal trial proceeded, and, on March 8, 2012,
she was convicted of Sherri’s murder, and sentenced to 27 years
to life. Even after her conviction, Lazarus did not immediately
assert the prematurity defense or suggest application of the
felony conviction statute of limitations. In fact, she did not raise
those subjects for four years. 4
        On April 8, 2016, Lazarus filed a motion to dismiss on
statute of limitations grounds. For the first time she argued that
plaintiffs could not take advantage of the felony conviction
statute of limitations, because the action had been filed before
rather than within one year following her conviction. The trial
court construed the motion as one for judgment on the pleadings
and denied it. The court concluded that the action was not
untimely merely because it had been filed before Lazarus’s
eventual conviction.


the dismissal on appeal. (Rasmussen v. City of Los Angeles
(Nov. 15, 2012, B234731) [nonpub].) We grant Lazarus’s request
for judicial notice of this opinion.

4     Lazarus was convicted in 2012. Her conviction was
affirmed on appeal in 2015. (People v. Lazarus (2015)
238 Cal.App.4th 734, rev. denied Oct. 28, 2015, S228654.) It
appears that the civil case was repeatedly continued until
resolution of Lazarus’s appeal. A status conference was held in
February 2016 and the action finally moved forward.



                                 4
       The case proceeded to trial. Both sides waived jury, and
stipulated that Lazarus was convicted of Sherri’s murder. There
was little evidence taken: the Rasmussens testified as to their
loss, and Lazarus asserted prematurity under the statute of
limitations.
       The trial court again rejected Lazarus’s argument that the
action had been prematurely brought, largely on the basis that
equity demanded the Rasmussens not forfeit their right to
recover simply because they had diligently filed the action as
soon as Lazarus had been identified as their daughter’s
murderer, even if they had filed before Lazarus’s conviction. The
Rasmussens were awarded judgment against Lazarus for $10
million. Lazarus filed a timely notice of appeal.
                           DISCUSSION
       Lazarus frames her appeal in terms of trial court error in
not finding the Rasmussens’ complaint barred under section
340.3, subdivision (a) because it was not filed “within one year
after” Lazarus’s conviction. Although the construct of her
argument certainly contains elements of the statute of
limitations, the more important analytical tool for our purposes is
the somewhat arcane notion of “plea in abatement.” This is so
because defendant’s contention is not that the action is time-
barred because it was filed too late. Rather, she argues the
action was filed too early. This is an argument of prematurity,
which is raised by a plea in abatement. (See Conservatorship of
Oliver (1962) 203 Cal.App.2d 678, 686 [objection that claim for
attorney fees was premature was plea in abatement that could
not be raised for first time on appeal].)
       Lazarus’s argument is based on undisputed facts. As such,
it presents a purely legal question, which we review de novo. (ZF




                                 5
Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016)
5 Cal.App.5th 69, 78.)
1.     Three Governing Limitation Periods For Actions Based on
       Murder
       To put into context Lazarus’s plea in abatement defense,
we consider the three different statutes of limitations which are
implicated in a wrongful death action based on murder.
       First, section 335.1 establishes a two-year statute for
actions for any wrongful death, including those not tied to
criminal activity. As Sherri was murdered in 1986, this statute
expired, at the latest, in 1988, some 22 years before the complaint
was filed in this case. The Rasmussens do not suggest
otherwise. 5
       Second, section 340.3, subdivision (a) provides an
additional term of one year following the defendant’s felony
conviction, when the civil action seeks damages caused by the
defendant’s commission of the felony. As we shall discuss below,
this statute drives our resolution of the appeal.
       Third, section 340.3, subdivision (b)(1) provides one final
term in which an action for damages arising from the defendant’s
conviction of one of certain felonies, including murder, may be
brought. That term is 10 years from the date on which the



5     This statute was enacted in 2002, effective in 2003. There
was some dispute at trial as to whether this statute, or the prior
one-year statute, applied to this action. Also at trial, the
Rasmussens argued that this statute had been equitably tolled by
Lazarus’s attempts to hide her identity as the murderer or that
the delayed discovery rule applied. The trial court rejected both
of these contentions. None of these points is pursued on appeal.




                                6
defendant is discharged from parole. 6 No party argues that this
statute applies to the current action, although Lazarus relies on
its existence in her discussion of the equities of the case.
2.      Code of Civil Procedure 340.3 Subdivision (a) and the
        Victims’ Bill of Rights
        Our focus is on section 340.3, subdivision (a). The statute
“extends the time to sue for damages due to commission of a
felony offense until one year after judgment of conviction of the
crime . . . .” (Gallo v. Superior Court (1988) 200 Cal.App.3d 1375,
1378.) “Section 340.3 was enacted to comply with the provisions
of Proposition 8 [“Victims’ Bill of Rights”] (Cal. Const., art. I,
§ 28), which provides: ‘It is the unequivocal intention of the
People that all persons who suffer losses as a result of criminal
activity shall have the right to restitution from the persons
convicted of the crimes for losses they suffer.’ ” (Newman v.
Newman (1987) 196 Cal.App.3d 255, 259.) “The legislative
history for section 340.3 indicates that the Legislature proposed a
special statute of limitations for felony crime victims in order to
facilitate restitution by encouraging civil lawsuits against
criminal defendants. The Senate Committee on the Judiciary
comment on Assembly Bill No. 493 states that ‘[t]his bill would
grant a plaintiff who was the victim of [a] felony and was suing
the person convicted of the felony the following advantages: [¶]
. . . [¶] an extension of the period in which suit might be brought
until one year after judgment was pronounced in the criminal
case. [¶] . . . [¶] The purpose of the bill is to encourage felony
victims to sue those convicted of the felony in order to obtain

6      A defendant sentenced to murder with a maximum term of
life imprisonment can be discharged from parole no earlier than
seven years after paroled. (Pen. Code, § 3000.1, subd. (a)(2).)



                                 7
restitution.’ [Citation.]” (Guardian North Bay, Inc. v. Superior
Court (2001) 94 Cal.App.4th 963, 973.)
3.    The Rasmussens’ Filing of the Complaint before Lazarus’s
      Conviction Does Not Effect a Bar to the Wrongful Death
      Action.
      A.     The Relevant Dates
      The issue on appeal is one of timing. We briefly review the
relevant dates:
          • On February 24, 1986, Lazarus murdered Sherri
             Rasmussen;
          • On December 18, 2009, Lazarus was charged with
             the murder;
          • On July 26, 2010, the Rasmussens filed this wrongful
             death action against Lazarus;
          • On February 7, 2011, Lazarus filed her answer to the
             complaint;
          • On March 8, 2012, Lazarus was convicted of the
             murder;
          • On April 8, 2016, Lazarus first argued this case was
             prematurely filed and the Rasmussens were not
             entitled to the benefit of section 340.3, subdivision (a).
      Lazarus argues, based solely on the text of the statute, that
this action is barred, because it was filed before, not after, her
conviction. But, as we now discuss, a plea of prematurity is not
treated the same way as a defense that the claim is time-barred,
a point that in some respects Lazarus has overlooked.
      B.     Prematurity is a Disfavored Plea in Abatement
      Prematurity is a disfavored plea in abatement. (Bollinger
v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 406 (Bollinger).)
The concept is at least 100 years old in our state. In Bemmerly v.




                                  8
Woodward (1899) 124 Cal. 568, hearing en banc denied, the
plaintiffs brought suit against the executor of the estate of the
alleged wrongdoer. The law required that, before filing suit, the
plaintiff must present a claim to the estate; suit must be brought
within three months of rejection of the claim. (Id. at p. 574.) The
plaintiffs’ supplemental complaint alleged “the due presentation
of a proper claim against the estate of [the wrongdoer], but also
shows that such presentation and rejection was after the
commencement of this action.” (Id. at p. 570.) Thus, the
defendant argued the suit was premature, having been filed prior
to the claim’s rejection. (Ibid.) Significantly, the defendant did
not raise this argument until a motion for new trial. (Id. at
p. 574.) Our Supreme Court explained, “It has been held,
however, that this is a mere matter of abatement, which is
waived unless pleaded. Formerly, such pleas could only be
interposed before a plea to the merit. Under our code all defenses
may be included in one answer, but if a defense which is mere
matter of abatement is not made by that time, it should be
deemed waived.” (Ibid.) The court continued, “It is simply
matter of abatement—a defense which is not favored, and must
be made by plea, and in proper time, or it is waived. If so waived
the court will be rarely justified in permitting the defense to be
made later. In this case if the defense had been promptly made,
plaintiffs could have dismissed their suit and brought another.
But if, after three months had elapsed after the claim was
rejected the point could be successfully urged, plaintiffs would
have lost their right of action.” (Id. at p. 575.)
       The court distinguished its result from the more absolute
application of time bars under statutes of limitation, explaining,
“If, however, the time for the presentation of claims had wholly




                                9
elapsed before or after suit brought, and the claim had not been
presented, it would have been a different matter. Then the
claims would be forever barred, and it would be both the privilege
and the duty of the executrix to urge the point. And she would be
entitled, as matter of right, to file a supplemental answer, if the
defense had accrued after the issues had been made up. It is
clear that the defense was waived in this case.” (Bemmerly,
supra, 124 Cal. at p. 575; see also 5 Witkin, Cal. Procedure (5th
ed. 2008) Pleading, § 1152, pp. 576-577 and cases cited.)
       Bemmerly’s analysis plants the seeds for three different,
but related, arguments which can defeat the plea in abatement of
prematurity: (1) the plea of prematurity has been waived; (2) the
defect of prematurity has been cured; and (3) the equities oppose
recognition of the plea. We find each applicable here.
       C.    Prematurity Has Been Waived
       A plea in abatement must be timely made, or it is waived.
(Radar v. Rogers (1957) 49 Cal.2d 243, 250 (Radar).) As just
explained in Bemmerly, the defense must be promptly pleaded in
the defendant’s answer, otherwise, it is lost. (Kelley v. Upshaw
(1952) 39 Cal.2d 179, 188-189.) Our Supreme Court explains:
“Dilatory tactics are not favored by the law, for they waste the
court’s time, increase the cost of litigation, unnecessarily, and
may easily lead to abatement of an action on purely technical
grounds after the statute of limitations has run. [Citations.]
Defendant’s plea of prematurity was a dilatory plea in
abatement, unrelated to the merits and not asserted for nearly a
year after plaintiff’s action was filed. Under these circumstances
defendant loses its privilege to raise it.” (Bollinger, supra,
25 Cal.2d at p. 406.)




                                10
       Here, Lazarus’s claim of prematurity arose immediately
when she was served with the complaint in 2011. She could
have, but did not, raise the point in her answer which she filed on
February 7, 2011, and at the latest, on March 8, 2012, when she
was convicted of the murder. She did not assert the plea until
she filed a motion to dismiss four years later, on April 8, 2016.
She then argued that the complaint had been filed prematurely.
And in a perhaps unintended harkening back to why Bemmerly,
supra, 124 Cal. at page 575, adopted waiver, Lazarus argued it
was now much too late for the Rasmussens to timely refile.
       As Lazarus failed to raise the plea in abatement in her
original answer – or even in an amended answer she could have
filed following her conviction – she has waived the disfavored
plea in abatement of prematurity.
       D.    Any Prematurity Has Been Cured
       The doctrine of cure is related to, but somewhat different
from, the doctrine of waiver. Both arguments arise when the
abatement plea of prematurity is made too late. Waiver arises
when the plea is not timely made in relation to the defendant’s
answer; cure arises when the plea is not raised until the defect
(here the lack of a criminal conviction) no longer exists.
       A consequence of the disfavor in which pleas in abatement
are held is that the matter in abatement must exist at the time
the plea is raised, and if it does not exist at the time of trial, it
may be disregarded. (Radar, supra, 49 Cal.2d at p. 250.) Like
Bemmerly before it, Radar involved a suit against the
wrongdoer’s estate, in which the suit had been brought before the
plaintiff made a claim against the estate. However, by the time
the administrator of the estate raised the defense, a timely claim
had been made and rejected. (Id. at p. 246.) Our Supreme Court




                                 11
explained, “The substance of the defect that the action had been
brought before presentation and rejection of claim no longer
existed when defendant by general demurrer to the amended and
supplemental complaint sought to raise the issue.” (Id. at p. 249.)
The court held that it was unnecessary to determine whether the
defense was waived, “for it had ceased to exist at the time
defendant sought to raise it.” (Id. at p. 250.)
       Courts have applied this rule to save a wide range of
actions which, for one reason or another, were premature when
filed but in which the defect had been cured by the time the issue
was raised. (See People v. Superior Court (Preciado) (2001)
87 Cal.App.4th 1122, 1128-1130 [a petition alleging a defendant
is a sexually violent predator should not be filed until two
psychotherapists have evaluated the defendant and concluded he
is a sexually violent predator; here, the petition was brought
when only one evaluation had been obtained, but the second
evaluation was performed before the defense was raised]; Virgin
v. State Farm Fire & Casualty Co. (1990) 218 Cal.App.3d 1372,
1373, 1375-1376 [plaintiffs sued an insurer for bad faith denial of
their claims before the claims had been denied; the claims had
been denied by the time the insurer sought summary judgment
on that basis]; Donovan v. Wechsler (1970) 11 Cal.App.3d 210,
213-214 [plaintiff sued on a note before it had been assigned to
him; the note was assigned to him shortly after the action was
brought and before the plea was raised].)
       The same rationale applies here. It is true that the action
was prematurely filed – Lazarus had been charged with, but not
yet convicted of, Sherri’s murder. However, Lazarus was
convicted long before she raised prematurity as a defect. As the




                                12
factual impediment had by then been cured, the trial court was
correct to ignore it.
      Lazarus’s only argument to the contrary is to suggest that
Radar and its progeny are distinguishable from the present case.
She relies on State of California v. Superior Court (2004)
32 Cal.4th 1234, 1243-1244 (Bodde). Bodde was concerned not
with prematurity, but with whether a plaintiff bringing suit
against a government entity must allege in the complaint facts
demonstrating compliance with the Tort Claims Act. (Id., at
p. 1239.) That the Bodde court distinguished Radar and some of
the cases following it means nothing. The Bodde court was
simply recognizing that Radar addressed prematurity while
Bodde addressed pleading requirements. (Id. at pp. 1243-1244.)
In any event, Lazarus’s attempt to distinguish Radar is
unpersuasive. Lazarus argues that the submission of a timely
claim (against the estate) was necessary to the holding of Radar
and that the complaint here “is akin to the filing of a complaint
against a public entity without the prior filing of a government
claim.” But the criminal conviction is not a prerequisite to the
Rasmussens filing their suit; indeed, they could have sued
Lazarus back in 1986, immediately after the murder. At the time
the lawsuit was filed, plaintiffs could not avail themselves of the
general two year statute of limitations of section 335.1. Nor did
they meet the precondition for claiming the benefits of section
340.3, subdivision (a). But just as the defect in Radar and other
cases had been cured by the time prematurity was brought to the
court’s attention, so too was it here, and the trial court correctly
rejected it.




                                13
       E.     The Equities Favor the Rasmussens
       While waiver and cure are each sufficient to resolve this
appeal in the Rasmussens’ favor, we observe that equitable
considerations confirm our result. (See Bollinger, supra,
25 Cal.2d at p. 411 [“equitable considerations” may be considered
in rejecting a plea in abatement].) Lazarus’s ultimate argument
is not merely that the action was prematurely brought, but that,
if the judgment were reversed on that basis, the Rasmussens
could not refile the action without running afoul of the time bar
of section 340.3, subdivision (a) which requires suits to be
brought within one year of conviction, a time long since passed.
She suggests, perhaps somewhat disingenuously, that the
Rasmussens would not be without remedy, as they could pursue
an action against her once she has been discharged from parole.
(§ 340.3, subd. (b)(1).) The Rasmussens would then be able to file
during the 10-year period after Lazarus is discharged from
parole. Such a literal construction of the statutes does not
comport with Bollinger’s “equitable considerations.”
       In Bollinger, our Supreme Court considered an unusual,
but apt factual scenario. The plaintiff insured brought suit
against the defendant insurer, who delayed raising a prematurity
argument until a motion for nonsuit after the plaintiff presented
its case at trial. The trial court granted the nonsuit. (Bollinger,
supra, 25 Cal.2d at p. 402.) Rather than filing an appeal, the
plaintiff brought a second suit. The second action was untimely
under the relevant limitation period, and the plaintiff argued
that the action should not be barred because this situation only
occurred because the defendant had delayed in raising
prematurity in the first action. (Id. at p. 402.) The trial court
sustained the defendant’s demurrer on untimeliness and the




                                14
plaintiff appealed. (Id. at p. 403.) The Supreme Court concluded
that the first trial court erred in granting the nonsuit; defendant
had lost the privilege to assert prematurity “by failing to plead it
plainly and to assert it promptly.” (Id. at p. 406.) The court then
concluded that the second action should be allowed to proceed,
stating, “Under the circumstances it would be a perversion of the
policy of the statute of limitations to deny a trial on the merits.”
(Id. at p. 406.)
       The court explained that generally, statutes of limitation
“ ‘are designed to promote justice by preventing surprises through
the revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and witnesses have
disappeared. The theory is that even if one has a just claim it is
unjust not to put an adversary on notice to defend within the
period of limitation and the right to be free of stale claims in time
comes to prevail over the right to prosecute them.’ ” (Bollinger,
supra, 25 Cal.2d at p. 427.) The court found, “Under the
circumstances of the present case it would be manifestly unjust
for this court to prevent a trial on the merits, which the law
favors [citations] thereby incurring a technical forfeiture of the
insured’s rights, which the law discourages [citations], by
enforcing the . . . limitation period when the prior action was filed
promptly and long before the period expired.” (Id. at pp. 407-
408.) “It is sufficient to hold that the equitable considerations
that justify relief in this case are applicable whether defendant
violated a legal duty in failing to disclose its intention to set up
this technical defense, or whether it is now merely seeking the
aid of a court in sustaining a plea that would enable it to obtain




                                 15
an unconscionable advantage and enforce a forfeiture.” (Id. at
p. 411.) 7
      The same concerns support the trial court’s ruling here. A
defendant cannot untimely raise prematurity and then hide
behind a statute of limitations which ran while the defendant did
nothing to assert the plea.
      None of the policies behind statutes of limitation would be
served by reversing the judgment here and forcing the
Rasmussens to wait until Lazarus serves her 27-years-to-life
sentence, is paroled – for which there is no guarantee – and is
discharged. Particularly given the facts that the Rasmussens
have already waited over 30 years in their struggle for justice,
and were in their 80s at the time of trial, forcing still another
multi-decade delay would grossly undermine, rather than
achieve, statute of limitations purposes. In enacting section
340.3, subdivision (a), the Legislature already determined that –
no matter what statute of limitations might otherwise be
applicable – the policy of compensating crime victims mandates

7     A more recent case than Bollinger suggested an alternative
ground for reaching the same result. In Virgin v. State Farm Fire
& Casualty Co., supra, 218 Cal.App.3d 1372, the defendant was
granted summary judgment on a claim of prematurity which had
been cured by the time the motion was heard. The Court of
Appeal reversed. The court observed “that upholding the grant of
summary judgment based on this technical ground would
accomplish nothing other than requiring the homeowners to refile
their action.” (Id. at p. 1377.) As to the suggestion that a refiled
action would be time-barred, the court stated, “The fact this
action would be refiled after the limitations period had expired is
irrelevant since the doctrine of ‘equitable tolling’ would toll the
statute of limitations during the period the first action was
pending. [Citations.]” (Id. at p. 1377, fn. 6.)



                                16
that they be permitted to civilly pursue criminal defendants
following their convictions. Here, the action was pending during
that period. The Legislature’s goals are furthered by allowing it
to proceed.
                          DISPOSITION
      The judgment is affirmed. Lazarus is to pay the
Rasmussens’ costs on appeal.




                                          RUBIN, J.
WE CONCUR:




            BIGELOW, P. J.




            GRIMES, J.




                               17
