Civil Suit

[IMHO]

Why do you think that Sharon Rocha dropped the civil case against Scott? I don't think it is because she was afraid of new evidence coming in, I think that she just did not want to go through the reenactment of Laci and Connor's death. What do you all think?

[S Lyster]

Why do you think that Sharon Rocha dropped the civil case against Scott? I don't think it is because she was afraid of new evidence coming in, I think that she just did not want to go through the reenactment of Laci and Connor's death. What do you all think?

I am satisfied that the Rocha's saw no point in going ahead at this point. They would have to incur all the costs of advancing the civil suit, as the State does not pick up that side of the costs as it does in criminal trials. Even if they win and costs are awarded to be paid by the defendant, presently the defendant has no assets to go after.

Apparently they have reserved the right to advance a wrongful death suit against Scott if it appears he is coming into money - ie. a book deal or something.

Whether they'd win a civil wrongful death suit is another matter. But there appears to be nothing to gain for the Rochas at this point and a lot to lose.

[marlene]

Why do you think that Sharon Rocha dropped the civil case against Scott? I don't think it is because she was afraid of new evidence coming in, I think that she just did not want to go through the reenactment of Laci and Connor's death. What do you all think?

I am satisfied that the Rocha's saw no point in going ahead at this point. They would have to incur all the costs of advancing the civil suit, as the State does not pick up that side of the costs as it does in criminal trials. Even if they win and costs are awarded to be paid by the defendant, presently the defendant has no assets to go after.

Apparently they have reserved the right to advance a wrongful death suit against Scott if it appears he is coming into money - ie. a book deal or something.

Whether they'd win a civil wrongful death suit is another matter. But there appears to be nothing to gain for the Rochas at this point and a lot to lose.

I have been unable to determine what the statute of limitations is now. I saw one article on the internet that said that the original statue of limitations still applies, but in CA, that is 2 years from the date of death - which for the Rochas, since they believe it was Dec 24, 2002, would be Dec 24, 2004.

Anyone else have any idea what statue of limitations now applies, if there is any?

[Moolah]

General Introduction to Wrongful Death Actions

California Wrongful death actions are governed by Code of Civil Procedure §§ 377.60-377.62. A one-year statute of limitations governs most wrongful death actions. However, in some circumstances, the limitations period may be tolled.

California law limits a claim for wrongful death to the death of "a person." A person is legally dead if brain functions or circulatory and respiratory functions have irreversibly ceased. An unborn fetus is not a person under the California Code.

California law creates an action for wrongful death only when the death "is caused by the wrongful act or neglect of another." The phrase "wrongful act" has been construed to mean "tortious act," and includes actions based on either negligence or intentional wrongful conduct.

What is a Wrongful Death Action?

A wrongful death action is an action for damages for the death of one person when that death is caused by the wrongful act or neglect of another. In California, a wrongful death action is created entirely by statute. Therefore, what the legislature says, not what the court say, is what creates the boundaries for wrongful death actions. For example, because the Legislature did not intend that a fetus be considered a person within the meaning of the wrongful death statutes, a wrongful death action cannot be maintained for the death of an unborn child. See Justus v. Atchison (1977) 19 Cal.3d 564, 580.

The purpose of a wrongful death action is to compensate persons who have a relationship with the decedent that is delineated by statute for the pecuniary loss suffered by them as a result of the death of the decedent.

The plaintiff in a wrongful death action stands in the shoes of the decedent for many purposes. For example, an award for wrongful death must be reduced by the proportionate share of the decedent's negligence. See Cavallaro v. Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 109-110. The contributory negligence of a wrongful death plaintiff reduces his or her recovery proportionately, but it does not affect the award to which any other wrongful death plaintiff is entitled

If the decedent executed a pre-injury waiver and release by which he or she assumed all the risks of a particular activity, one may not effectively waive a cause of action for wrongful death, because that cause of action lies not in the releasor but in persons designated in wrongful death statute. This results from the fact that a wrongful death action is not derivative but, rather, a separate and distinct right belonging to the entitled persons set forth by statute that does not arise until the decedent dies. Therefore, any provision in a written waiver and release that waives or purports to waive a cause of action for wrongful death is legally ineffective to bar a wrongful death action by or on behalf of those persons entitled to sue under the wrongful death statute. See Madison v. Superior Court (1988) 203 Cal.App.3d 589, 596.

[marlene]

Thanks, Moolah. There seems to be some disagreement among the various sites as to the statute of limitations for filing a wrongful death suit.

I find it interesting that the statue for wrongful death suits won't consider a suit on behalf of an unborn child -- that eliminates Conner from the suit.

But, can you find anything that says what the statute of limitations is now that the civil suit has been filed without prejudice, because that means Sharon can refile the suit at a later time. Surely this can't go on indefinitely -- there must be a deadline by which she has to refile, or she loses the opportunity.