ROE v.DOE






Filed 1/20/11





CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JOHN ROE 58 et al., Plaintiffs and Appellants, v. DEFENDANT DOE 1 et al., Defendants and Respondents.

B215948 (Judicial Council Coordinated Proceedings No. JCCP 4297)

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Emilie H. Elias, Judge. Affirmed.
Zalkin & Zimmer, Irwin M. Zalkin and Devin M. Storey; The Senators Law Firm and Joseph L. Dunn for Plaintiffs and Appellants.
Stokes Roberts & Wagner, Maria C. Roberts, Shirley A. Gauvin, Christina Yates; Hennigan, Bennett & Dorman and Lee W. Potts for Defendants and Respondents Doe 1, Doe 4 and Doe 5.
Akin Gump Strauss Hauer & Feld, John A. Karaczynski and Rex S. Heinke for Defendant and Respondent Doe 2.
Murchison & Cumming, Michael B. Lawler and Edmund G. Farrell III for Defendant and Respondent Doe 3.

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Plaintiffs John Roe 58 and John Roe 61 appeal from the judgment of dismissal entered after the trial court sustained without leave to amend the demurrers of various Catholic Church entities to their first amended complaint. Because the statute of limitations on the plaintiffs’ claims expired years before they sued, and because they did not sue in 2003 during the Legislature’s one-year revival window for such claims, their claims again became time-barred and the trial court correctly sustained the demurrers on that ground.

INTRODUCTION

Code of Civil Procedure section 340.1 is an interpretive beast, a Frankenstein’s monster of legislative parts stitched together over 16 years. And like Shelley’s literary counterpart, this legislative monster is easily misunderstood, especially when it comes to the 2002 amendments that both lengthened the limitations period for certain childhood sex abuse claims against third parties and revived for one year all such claims that had been barred under the previous versions of the statute. Consistent with our earlier decisions, we hold once more that all such actions that were time barred before the 2002 amendments took effect were revived for the calendar year 2003 only, regardless of whether the plaintiffs had yet discovered the link between their abuse as children and their adult onset of psychological injuries. After a brief summary of the few relevant facts, we will dissect the statute’s parts.

FACTS AND PROCEDURAL HISTORY

John Roe 58 and John Roe 61 alleged that they were sexually molested by Father Robert S. Koerner when they were children who attended a Roman Catholic Church at a parish in Calipatria.[1] John Roe 58 alleged that the molestations began in 1981, when he was 8 years old, and ended in 1983, when he was 10 years old. John Roe 61 alleged that the molestations began in 1968, when he was 8 years old, and ended in 1974, when he was 14 years old. In April 2008, appellants sued several Catholic Church entities as Doe defendants, stating various causes of action based on allegations that even though the defendants knew Koerner had molested children who attended his church, they continued to keep Koerner in place as a parish priest.[2] John Roe 61 alleged that he repressed all memory of the sexual abuse until his memories began to return in December 2004. John Roe 58 alleged that various “psychological coping mechanisms” prevented him from ascertaining his damages or understanding that the abuse he suffered had been wrongful. Both alleged that they sued within three years of discovering that psychological injury occurring during adulthood was caused by the abuse.[3]
Under the statute of limitations then in effect, appellants’ claims became time-barred when each turned 19. Based on their ages as alleged in the first amended complaint, John Roe 58 turned 19 sometime in 1992, and John Roe 61 turned 19 sometime in 1979. Respondents’ demurrers were sustained without leave to amend because neither appellant sued during the calendar year 2003, during which their claims had been revived by the Legislature.

DISCUSSION

1. Relevant History of Code of Civil Procedure Section 340.1[4]

Until 1986, all sexual molestation claims were governed by the one-year statute of limitations then applicable to most tort claims. (§ 340; see DeRose v Carswell (1987) 196 Cal.App.3d 1011, 1015, 1018 [suggesting delayed discovery may be available for repressed memory].) If the victim was a minor, however, that period was tolled by section 352 until the victim’s 18^th birthday, meaning the victim had one year after his or her 18th birthday to file suit. In 1986, the Legislature added section 340.1, which increased the limitations period to three years, but only for abuse of a child under age 14 by a household or family member. (Hightower v. Roman Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759 (Hightower).) Section 340.1 was amended in 1994 to extend the limitations period to the later of either age 26 or three years from the plaintiff’s discovery that psychological injury occurring after adulthood had been caused by the actual sexual abuse. (Former § 340.1, subd. (a).) The 1994 amendment applied to only the perpetrator, meaning that claims against entities that employed or otherwise exercised control over the perpetrator were still subject to the one-year limitations period and tolling until 18 years old for victims who were minors when the abuse occurred. (Hightower, at p. 765.)
In 1998, the Legislature amended section 340.1 to include causes of action for sex abuse against nonabusers whose negligent or intentional acts were a “legal cause” of a child’s sexual abuse. (§ 340.1, subd. (a)(2) & (3), added by Stats. 1998, ch. 1032, § 1.)[5] While subdivision (a) of section 340.1 continued to state that the limitations period for actions based on childhood sexual abuse was the later of a plaintiff’s 26^th birthday or three years from the discovery that adult-onset psychological injury had been caused by the abuse, the newly-added subdivision (b) stated that no action against nonabusers could be commenced on or after the plaintiff’s 26^th birthday. (Hightower, supra, 142 Cal.App.4th at pp. 765-766.) Thus, some claims against nonabusers for sexual abuse were barred before the victim was even aware of his or her injuries once the victim turned 26.[6]
In 1999, the Legislature again amended section 340.1 to clarify that the 1998 amendment relating to the liability of nonabuser persons or entities applied only to actions begun on or after January 1, 1999, or, if filed before then, to actions still pending as of that date, “including any action or causes of action which would have been barred by the laws in effect prior to January 1, 1999.” Cases that were final before that date were not revived. (§ 340.1, subd. (u), added by Stats. 1999, ch. 120, § 1; Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208 (Shirk).)[7]
In short, until January 1, 1999, child molestation victims had until they turned 19 to sue nonabuser persons or entities. As of that date, the limitations period for claims against nonabusers expired on a victim’s 26^th birthday.
The legislative amendment at issue here was passed in 2002 and took effect on January 1, 2003. It retained the limitations period for actions against childhood sex abuse perpetrators at the later of age 26 or three years from discovery of the causal link between adult-onset psychological injury and the molestation. The age 26 cap from the 1998 amendment was retained against nonabuser entities or persons (§ 340.1, subds. (a)(1)-(3), (b)(1)), with an exception carved out for one category of such defendants. “[I]f the person or entity knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person . . . ,” then the age 26 cut-off did not apply. (§ 340.1, subd. (b)(2).) In those cases, the statute of limitations therefore became three years from the date of discovery.[8]
The Legislature also amended section 340.1 to revive for calendar year 2003 all nonabuser claims that fell within the description of section 340.1, subdivision (b)(2) and would otherwise be barred because the limitations period had expired. That provision states: “Notwithstanding any other provision of law, any claim for damages [falling under subdivision (b)(2)] that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired, is revived, and, in that case, a cause of action may be commenced within one year of January 1, 2003. Nothing in this subdivision shall be construed to alter the applicable statute of limitations period of an action that is not time barred as of January 1, 2003.” (§ 340.1, subd. (c).)[9]
To sum up, effective 2003, section 340.1 established the limitations period for three groups of defendants in order of descending culpability: (1) for perpetrators, the later of the plaintiff’s 26^th birthday or three years from discovery (subd. (a)(1)); (2) for nonabusers who did not take reasonable steps to safeguard minors from a known or suspected molester, three years from discovery (subd. (b)(2)); and (3) for all other nonabusers whose negligent, wrongful, or intentional conduct was a legal cause of the childhood sexual abuse, no later than the plaintiff’s 26^th birthday (subds. (a)(2) & (3), (b)(1)).[10]

2. The Hightower Decision

In Hightower, supra, 142 Cal.App.4th 759, the plaintiff alleged he was molested in the early 1970s, meaning his claims against the perpetrator and any nonabusers became time-barred when he turned 19 in 1977. After making a defective attempt to sue nonabusers during the 2003 revival period, the plaintiff finally filed a complaint in April 2004. The plaintiff alleged he did not discover the cause of his psychological injuries until 2003, claiming his action was timely under the expanded limitations period approved by the Legislature in 2002. This court rejected that contention because the Legislature’s one-year revival window for any subdivision (b)(2) claims that had already lapsed “drew a clear distinction between claims that were time-barred and those that were not. Hightower’s interpretation would obliterate that distinction by allowing his time-barred claim to take advantage of the new limitations period,” essentially sidestepping the one-year revival period. (Id. at pp. 767-768.) Therefore, we held, for subdivision (b)(2) nonabuser claims like Hightower’s that were barred by the pre-2003 statute of limitations, the only available opportunity to sue was during the one-year revival window of 2003.
Appellants contend we were wrong in Hightower because: (1) the plain language of the statute shows it was intended to allow claims like theirs; (2) the legislative history, combined with the Legislature’s ever-broadening amendments to the limitations period, show that their claims were valid, especially when viewed in light of section 340.1’s remedial nature; (3) the Legislature’s 2002 reenactment of section 340.1, subdivision (u), which clarified the scope of the 1998 amendment that first allowed for actions against nonabuser entities up to a plaintiff’s 26^th birthday, shows that subdivision (b)(2) was designed to have retroactive effect; (4) under the common law equitable doctrine of delayed discovery, their causes of action did not accrue until 2003; and (5) the longer, three-years from discovery provision for claims against perpetrators is applicable under vicarious liability principles or because respondents were themselves perpetrators.[11]

3. Appellants’ Claims Are Time-Barred

A. The Plain Language of Subdivisions (b)(2) and (c) Bars the Claims

Statutes are presumed to operate prospectively from the date they take effect unless (1) they contain express language of retroactivity, or (2) other sources provide a clear and unavoidable implication that the Legislature intended a statute to apply retroactively. (§ 3; McClung v. Employment Development Dept. (2004) 34 Cal.4th 467; People ex rel. City of Bellflower v. Bellflower County Water Dist. (1966) 247 Cal.App.2d 344, 350.) This rule applies to new or amended statutes of limitation. (Andonagui v. The May Dept. Stores Co. (2005) 128 Cal.App.4th 435, 441.) If the new limitations period is not expressly made retroactive, it does not revive actions that are already time-barred. (Ibid.) Subdivision (b)(2), which enlarged the limitations period for a limited class of nonabusers, does not mention retroactivity and therefore by itself does not make the newly enlarged limitations period retroactive. (Gallo v. Superior Court (1988) 200 Cal.App.3d 1375, 1379.)
Instead, subdivision (b)(2) is made retroactive by subdivision (c). As noted, subdivision (c) revives for the calendar year 2003 any subdivision (b)(2) claims “that would otherwise be barred as of January 1, 2003.” As appellants point out, when the Legislature amended section 340.1 with revival provisions in subdivisions (r) and (u), it referred to claims that were barred by the law in effect “prior to” the effective date of those amendments. Because subdivision (c) does not use this language, and instead refers to claims that would otherwise be barred as of January 1, 2003, appellants contend the Legislature “intended subdivision (c) to apply to claims that were barred by the law existing on January 1, 2003, i.e., to those claims by individuals who discovered the cause of their injuries more than three years prior to the effective date of the [2002] amendment.” Those who had not yet made discovery were free to sue under the newly extended limitations period even if they had turned 26 years earlier, they contend.
We disagree. Instead, the plain language of the statute, along with decisions interpreting a nearly identical provision, compels a different result. We begin with section 340.9, a virtually identical statute passed in 2000 that took effect on January 1, 2001, in order to revive claims by property owners against their insurance companies arising from the 1994 Northridge Earthquake. It provides: “(a) Notwithstanding any other provision of law or contract, any insurance claim for damages arising out of the Northridge earthquake of 1994 which is barred as of the effective date of this section solely because the applicable statute of limitations has or had expired is hereby revived and a cause of action thereon may be commenced provided that the action is commenced within one year of the effective date of this section.”[12] The statute also provides that “[n]othing in this section shall be construed to alter the applicable limitations period of an action that is not time barred as of the effective date of this section.” (§ 340.9, subd. (c).)
The court in 20^th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247 (20^th Century) held that that the phrase “law or contract” in section 340.9, subdivision (a) was intended to reach the policy’s one-year contractual limitations period for actions against the insurer that was mandated by Insurance Code section 2071, and that the revival provision was not an unconstitutional impairment of the insurer’s contract rights. (Id. at pp. 1270-1273, 1276-1277.) In discussing why section 340.9 was designed to reach the contractual limitations period, the 20^th Century court said the legislative history made it clear that the Legislature intended to remedy the harm caused by that provision. Therefore, the term “ ‘applicable statute of limitations’ was simply a generic reference to the limitations period that the Legislature intended to reach by its enactment of section 340.9. Such generic use of the term was no different than the ‘lawyer’s shorthand’ utilized by 20^th Century itself when it demurred to [the plaintiff’s] pleadings on the ground that the ‘statute of limitations contained in the insurance policy’ had expired.” (Id. at pp. 1276-1277, original italics, fn. omitted.)
In another contract impairment case arising out of section 340.9, the court in Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 858, held that the provision “did nothing more than reopen the filing window, for a one-year period, to those otherwise viable cases that had become time-barred.” (Original italics.)
Taken together, the Rosenblum and 20^th Century decisions hold that section 340.9 was designed to revive for one year only claims that, but for the pre-existing limitations period, would be time-barred. Section 340.1 should be interpreted in the same way. When the Legislature passed the 2002 amendments to section 340.1, it obviously intended to remedy the harm caused by the age 26 cut-off date in the then-existing statute of limitations, but as to only the limited group of claims defined by subdivision (b)(2), the nonabuser who failed to take reasonable steps to guard against known or suspected child molesters. Thus, the age 26 cut-off of former subdivision (b) from the 1998 amendment that had been in place until the 2002 amendments took effect was the applicable statute of limitations by which subdivision (b)(2) claims would otherwise be barred as of January 1, 2003. (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 512 [subdivision (c) “has limited application to the revival of certain actions that were barred by the applicable statutes of limitations before the 2002 amendments to section 340.1 became effective.”].)
Complementing this is subdivision (c)’s provision that notwithstanding any other provision of law, “any claim” covered by subdivision (b)(2) that “would otherwise be barred” as of January 1, 2003, solely because the applicable limitations period had expired was revived and “in that case, a cause of action may be commenced within one year of January 1, 2003.” (Italics added.)
The limitations period in place through December 31, 2002, for claims against all nonabuser entities was a victim’s 26^th birthday. Therefore, as of January 1, 2003, there were three groups of child molestation victims whose claims against nonabusers had already expired and were therefore otherwise barred under the then-applicable limitations period: (1) those over age 26 who had made discovery more than three years earlier; (2) those over age 26 who had made their discovery less than three years earlier; and (3) those who had turned 26 and had not made discovery at all. We believe the Legislature meant what it said when it provided that “any claim” falling under subdivision (b)(2) was revived by subdivision (c), but for one year only. As a result, it must have included the appellants here, who fall into the third category.
Appellants do not dispute that their claims were time-barred years before subdivisions (b)(2) and (c) took effect. Under subdivision (c), therefore, their claims were revived, “and, in that case, a cause of action may be commenced within one year of January 1, 2003.” (§ 340.1, subd. (c).) The plain meaning of this language required appellants to bring their newly-revived claims during the one-year revival period. (Shirk, supra, 42 Cal.4th at p. 208 [subdivision (b)(2) claims that were already time barred were revived by subdivision (c) “for the year 2003”].) In short, if any subdivision (b)(2) cause of action was time-barred by January 1, 2003, and was not brought by January 1, 2004, it was thereafter barred again.
As for subdivision (c)’s statement that it shall not be construed to alter the applicable statute of limitations period of actions that were not time-barred as of January 1, 2003, it is the general rule that a new statute of limitations that enlarges a limitations period applies to actions that are not already barred by the original limitations period when the new law takes effect. (Andonagui v. The May Dept. Stores Co., supra, 128 Cal.App.4th at p. 440.) We conclude that this language was the Legislature’s plainly-stated way of invoking that rule, and means only that subdivision (b)(2) claims that pre-dated January 1, 2003, and which were not already barred on that date under the previous limitations period were now subject to the newly enlarged limitations period. The language in its express terms does not apply to claims that were already barred.
After putting our statutory creature back together, we therefore conclude: (1) appellants’ causes of action were time-barred under the then-existing statute of limitations years before the 2002 amendments took effect on January 1, 2003, even though they allegedly had not yet made discovery, because appellants were 26 or older as of January 1, 2003; (2) subdivision (c) revived their claims as of January 1, 2003, but only for one year; and (3) their failure to sue during that period left their claims time-barred once more.[13]

B. Appellants Misread the Legislative History

Appellants rely on portions of the legislative history to support their interpretation of subdivision (c). The first is an example found throughout the legislative history describing why the amendments are necessary: After noting that many childhood sex abuse victims do not manifest trauma until well after their 26^th birthday, the statement reads: “For example, a 35-year old man with a 13-year old son involved in many community and sporting events, may begin to relive his nightmare of being molested by an older authoritarian figure when he was 13 years old and about to enter puberty.” (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 1779 (2002-2003 Reg. Sess.) as amended June 17, 2002, pp. 3-4.)
Appellants conclude that this example validates their interpretation of the retroactive scope of subdivision (c). However, we read this as describing the prospective effect of the new limitations period. For instance, although the example mentions a childhood molestation victim who only makes discovery when he is 35, it does not also describe that hypothetical plaintiff as someone whose action was time-barred years before. Instead, the bill analysis discusses retroactivity immediately after the cited example, with the report noting that the bill also provided that “notwithstanding any other provision of law, any action for damages against a third party as provided above which is barred as of January 1, 2003, solely because the applicable statute of limitations has expired, is revived and a cause of action thereupon may be brought if commenced within one year of January 1, 2003. [¶] This bill further would provide that its one-year window period shall not alter the applicable limitations period of an action that is not time-barred as of January 1, 2003, and shall not apply to either” claims made final after litigation on the merits or by settlement. (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 1779 (2002-2003 Reg. Sess.) as amended June 17, 2002, p. 3.)
In sum, because this report discusses the retroactive effect of the amendments separately from the example that appellants rely upon, the example does not apply to the retroactivity analysis.



TO BE CONTINUED AS PART II….


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