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.,

Plaintiffs and Respondents,

v.

STEPHANIE LAZARUS,

Defendant and Appellant.

 B277635

 (Los Angeles County

 Super. Ct. No. BC442329)

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 timebarred 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