Call

Plaintiff appeals from an order of dismissal, entered after an order sustaining without leave to amend, a demurrer to her first amended complaint (hereinafter complaint). We reverse.

Marie Call, mother of Elizabeth, sued as guardian ad litem for Elizabeth Call, who was born on September 5, 1972. Elizabeth Call was a minor eight years old and incompetent at the time of suit.

Elizabeth Call was born with chromosomal anomalies known as Down’s Syndrome. The complaint against Dr. Kezirian and Does alleges careless diagnosing and examining and treatment, and particularly, negligence for failure to diagnose the embryonic abnormality, advise of the condition, and to recommend a therapeutic abortion to plaintiff's parents.

Kezirian demurred on the grounds: (1) that plaintiff failed to state a cause of action (Code Civ. Proc., § 430.10) in that the cause of action is barred by the statute of limitations in Civil Code section 29 and (2) that plaintiff’s cause of action depends on an allegation that defendants-respondents should have committed an illegal act (advise the parents to have an abortion).

In the amended complaint plaintiff attempted to allege facts which show that…