*1 Dist., May [No. B050677. Second Div. Seven. 1991.] V., MARSHA Plaintiff and Appellant, GARDNER,
HAROLD E. and Respondent. Defendant *3 Counsel
Patricia A. Gray and Donna Gaetano for Plaintiff and Appellant. Hartmann, Sharon Lybeck Davidson, Hoffman, Hufstedler, Jon W. Paul L. Kaus & Beardsley, Dennis M. Perluss and Cynthia Jirgensons L. as Amici Curiae on behalf of Plaintiff and Appellant. Michelizzi, Schwabacher,
Cosgrove, Ward & Bianchi and Frank G. Miche- lizzi for Defendant and Respondent.
Opinion sexually she was (Fred), J. her complaint, appellant WOODS old eight years when she was stepfather beginning molested 15 years filed her complaint old. She years when she was seventeen ending court, finding The trial later when she was 32 old. (DeRose v. Carswell doctrine inapplicable amend 368]), respondent’s leave to sustained without
1011 [242 We affirm. of dismissal. judgment demurrer. appeals Appellant Background and Factual Procedural 11, 1987, County Sonoma *4 filed a complaint On August appellant infliction of and injury negligent action: alleging personal two causes of 7,1988, agreed the parties filed October By stipulation emotional distress. 1989, 10, asserting On County. February the matter to Los Angeles transfer filed a general respondent barred the complaint, statute of limitations 10, 1989, demurrer without demurrer. On March the court sustained 24, 1990, in an unpublished On January leave to amend. Appellant appealed. because, court sustained after the trial we dismissed the opinion, appeal amend, had been of dismissal judgment demurrer without leave to no and the complaint the trial court dismissed entered. On motion appellant’s of dismissal. judgment from the judgment. entered Appellant appeals was eight years when appellant As the facts are these. alleged, old, in their Lancaster her who lived with the family respondent, stepfather home, molestation, until which continued her. The acts of began molesting breasts, old, “fondling when consisted of appellant [her] was 17 buttocks, her vagina, digital penetration oral pinching copulation, child, demands for and insistent struggle masturbation aided violent by of sexual molestation regular sexual contact on a basis. These acts for sexual favors.”1 bribery violent threats of and accompanied by injury acts, the nine- a result over developed As of respondent’s appellant thereafter, “feelings great sexual and year continuing molestation period shame, herself, embarrassment, humiliation, fear, guilt, about confusion self-blame, self-hate, sleep- and psychosomatic extreme anxiety, depression, affection, and and related differentiate between sex inability to complaints, difficulty forming meaningful relationships.” trust when, any of the complaint specify during nine-year period, 1The does not further occurred, acts nor the number of times act occurred. feel . . . sexual molestation caused “to experience appellant trapped isolated . . and “to disassociate deny, psychologically repress, her experience.”
“As a result accommodation disassociation psychological [this] [ ] . . she the exist- grew understanding . without up perceiving, knowing which ence nature of the [respon- emotional conduct . . her.” caused . dent’s] 2, 1986, inten-
Only beginning appellant on when commenced September did appellant relationship sive discover “the psychotherapy, physical and mental distress of sexual suffering” she was to the acts molestation respondent.
Discussion
1. Standard review demurrer,
“In of a reviewing sufficiency against general complaint are guided we demurrer all by long-settled rules. ‘We treat the as admitting contentions, material facts but not properly deductions or conclu- pleaded, sions of fact or law. We also consider bemay judicially matters *5 Further, noticed.’ we a give reasonable complaint interpreta- [Citation.] tion, it reading as a whole its context. a parts their When [Citation.] sustained, demurrer is we determine whether the facts complaint states sufficient to constitute a cause of action. And when it is sustained [Citation.] amend, without leave to decide we whether there is a reasonable possibility be, defect can by be cured if can the trial has amendment: cоurt reverse; not, abused its discretion we if there has been no abuse discretion and we affirm. of proving burden such reasonable [Citations.] is possibility (Blank (1985) on Kirwan squarely plaintiff.” v. 39 Cal.3d 311, 718, 318 58].) 703 Cal.Rptr. [216 P.2d 2. Statutes limitation
Three statutes of are limitation of Civil relevant. Code Procedure section 3522 tolls the limitation until a becomes 18 old. Section period person 340 prescribes a to one-year period bring an action “for . . . caused injury wrongful neglect act or a another.” And section 340.1 prescribes 2Unless otherwise statutory noted all the Code references are to of Civil Procedure. pertinent part the section provides: “(a) be, accrued, a person bring If entitled an action ... time the cause of action either: 1. Under age majority ... time disability H] the time of such is not a part limited for the commencement the action.” 270
three-yearperiod bring against family an action a householdor member who commitscertain sexual offenses.3 1955, 1, tolling period she was born April
Since appellant 2, limitation three-year (§ 352) and the section 340.1 1973 expired April 2, (Colleen Howard M. (1989) 209 L. v. 1976 period expired April 263]), appellant eleven years 542 over Cal.Rptr. Cal.App.3d [257 before 11, filed her on 1987. complaint August
Thus, by delayed the limitation was extended unless bar, the trial the limitation asserting respondent equitably estopped the demurrer. correctly court sustained Delayed discovery
3. (Neel v. discovery. long recognized delayed law has
California 176, 190 & Olney, Levy, Cathcart (1971) 6 Cal.3d Magana, [98 Gelfand Court 837, Superior & Co. v. 421]; 49 G. D. Searle 491 P.2d Cal.Rptr. 340.1, (d) 22, 218].) subdivision 25 Section Cal.Rptr. [122 is intended to preclude this bill “Nothing its expressly permits application: the accrual of discovery exceptions applying delayed courts from of a minor.” cause of action for sexual molestation needs of prospective “concern for the practical The doctrine arose from clock where the limitations Our law has evolved ... to a point plaintiffs. injured party action when the to run on certain causes of only begins (Davies liability.” the facts supporting discovers or should havе discovered 1161, P.2d Krasna (1975) 14 Cal.3d [121 807].) A.L.R.3d *6 drifted away we have this concern for the
“Impelled by pragmatic, when an act or begins the view necessarily . . . that a limitations period a matter of substantive omission of defendant constitutes a as legal wrong acts with a child under 14 Only categories six of sexual misconduct are covered: 1. lewd 3 old; fornication; foreign with a years sodomy; copulation; genital penetration 5. 2. 3. 4. oral 340.1, (a).) through (§ Categories 2 object; foreign object and 6. with a subd. penetration anal victim-plaintiff years under 18 old. require 6 that at the time of the act the be had committed categories, alleged respondent complaint Of these six sexual misconduct old, (lewd genital penetration with years copulation, three acts with a under 14 oral child three, with a foreign object). only (oral copulation genital penetration a Of the two years was 14 old. The foreign object) by appellant are covered the statute if committed after when, any of the acts occurred or complaint allege during nine-year period, fails to years age they occurred. such acts appellant whether was under founteen when If old, “fondling appellant buttocks” occurred after was 14 pinching her breasts and 340.1, (a). by are not covered section subdivision
271 Rather, now law. we subscribe to generally the view that [Citation.] action, a period cannot run before true cause of plaintiff possesses we mean that to a events have where is entitled to developed point a legal remedy, judgment not a such as an award of nominal merely symbolic (14 513.) damages.” Cal.3d at p. But concerns also limits on Without pragmatic require delayed discovery. ‘
such limits purpose limitations statutes—“ “to promote justice by preventing surprises through revival of claims that have been allowed to lost, faded, slumber until evidence has been memories have and witnesses have (Prudential-LMI disappeared”’” (1990) 51 Superior Ins. v. Court 674, 387, Cal.3d 1230])—would P.2d be thwarted. [274 Thus, “although to recover nominal will right damages trigger limitation, running of the period appreciable and actual infliction of harm, amount, however uncertain statutory period will commence the .... uncertainty as to the amount of nor damages difficulty [N]either Krasna, proving damages tolls the (Davies supra, of limitations.” v. 514.) (Italics Cal.3d added.) In addressing claim appellant’s delayed discovery is useful to note what she does not claim. Appellant no professes contemporaneous belated ignorance of There respondent’s conduct. is no that when allegation respondent allegedly fondled her breasts she was unaware he was fondling her breasts. there is Similarly, no that when allegation respondent allegedly committed each of the other acts of sexual molestation un was appellant aware he was doing so. Nor does claim that at time appellant an act after of sexual molestation occurred forgot or suppressed or otherwise was unaware (Cf. of that act. Neel Magana, Olney, Levy, Gelfand, Cathcart & supra, 190.) 6 Cal.3d
Further, does appellant not profess or belated contemporaneous ignorance of the wrongfulness fact, of respondent’s conduct. In in her brief appellant concedes that “certain aspects of cause of action obvious . . . the (the tortious act repeated molestations).” sexual What appellant does claim is that her “ongoing deep-seated *7 psychological injuries and the link causal between injuries those and [re- spondent’s] misconduct” was delayed.
The claim has been made before. number of plaintiffs “[A] . . . have alleged that psychological defense mechanisms caused sexual incest,4 abuse, the cause recognition in the context of prevent especially Carswell, (DeRose supra, Cal.App.3d harm.” and extent of emotional 1011, 1016). that her step- She alleged was Dianne DeRose.
One of those plaintiffs old and years was four her when she began sexually molesting grandfather 2, 1980, March 18 on until she was eleven. she becamе Although didn’t stop 1986, 13, 4 until January did file her abuse complaint not sexual (3)) (§ had subd. after the limitation statute5 1-year and 10 months expired.
DeRose, the delayed entitled to invoke like “she argued appellant, [was] the causal recently until because she did not discovery appreciate doctrine even injuries, her emotional assaults and between relationship Carswell, supra, 196 (DeRose v. she was aware of assaults.” though 1011, 1016). Cal.App.3d from indistinguishable with facts
In an we find persuasive, Carswell, case, supra, 196 (DeRose v. claim was rejected. instant DeRose’s 1016-1021.) at Cal.App.3d pp.
DeRose, from information appellant, “presented] as does (196 Cal.App.3d sexual abuse.” literature about incestuous sociological such pressures that 1016.) appellant, at DeRose as does p. explained, understanding from of incest sexual abuse “sometimes survivors prevent at p. therapy.” receive appropriate their until {Id. emotional 1017.) and poignant of this considerable validity
We have no rеason to doubt the children, its prevalence, literature. The fact of sexual molestation of longer seriously questioned. left on its victims can no be scars deep-seated Nevertheless, “satisfy failed to we conclude that complaint appellant’s (196 rule.” minimum of the delayed conditions for application 1017.) at Cal.App.3d p. has when a only plaintiff doctrine delayed discovery applies
“[T]he if Conversely, cause of action. not discovered all of the facts essential to the facts, the doctrine does has discovered all the essential discovered, in (196 1017.) long had since apply.” p. Appellant her, knew, that his molested sexually fact she that had always respondent consent,” he acts “were all committed will and without against [her] Although the effect of 4Appellant repeatedly respondent’s refers to conduct as “incest.” indistinguishable to or even respondent’s alleged appellant may comparable conduct on be incest, did “by appellant nor Respondent the term is inaccurate. is not related blood” Code, (Pen. 285.) allegedly he have intercourse her. § January 5Section 340.1 became effective 1987.
273 [her],” and that the wrongful had “committed acts conduct involved upon demands for sexual struggle “violent and insistent contact.” These were no suffered. Rather damages appellant nominal harm” and as such “appreciable statutory actual “commence[d] Krasna, (Davies 502, 512.) period.” supra, v. 14 Cal.3d That was appellant shame, embarrassment, hu- unaware additional harm (“feelings great miliation, fear, herself, self-blame, self-hate, anxiety, confusion about guilt, extreme depression, inability psychosomatic sleep-related complaints, affection, differentiate between sex and and difficulty forming meaningful only trust created relationships”) “uncertainty damages as to amount of 514; (Id. Jolly did toll at also p. of limitations.” see [and not] [ ] 1103, Lilly (1988) v. & 44 Eli Co. Cal.3d 751 1110-1111 Cal.Rptr. [245 923]; P.2d Evans v. Eckelman 1620 Cal.App.3d 216 [265 extent of is not an element of a of action damage 605] cause [“The tort, and the rule general is that the cause action is on the complete harm,’ sustaining of ‘actual and on which the dam- appreciable recoverable Krasna, ages (Davies would be more than supra, nominal. v. Cal.3d at p. Carswell, 514.) agree We supra, the court DeRose v. Cal.App.3d 1022-1023, at a pages young child his or sexually against molested time, will suffers an actual and would be appreciable injury at entitled to more than nominal damages. Unless awareness of the acts is immediately would suppressed necessarily be aware of injury, and hidden nature of the full damage would not bring rule accrual into play.”]). would
Appellant distinguish DeRose on the that it ground involved assault and battery. We disagree. DeRose like also complaint, appellant’s, alleged negligent infliction of factually emotional distress. Both child sexual molestation. 340.1,
Appellant argues (d). also DeRose “ignored” section It subdivision Carswell, (DeRose did not. supra, 1020.) p. 340.1, further Appellant argues (d) that because section subdivision ap- case, plies to this therefore also must She delayed discovery apply. (d) incorrect. Subdivision merely permits delayed discovery exception when it applies. It does not affect alter the substance the delayed rule, which, we have explained, here is inapplicable. 4. Equitable estoppel
Amici argue curiae him respondent’s estops conduct from asserting conduct, lasted, statute of limitations. that his while Assuming would *9 noted, bar, DeRose argument constitute such a is As unavailing. “[t]he did that she argument fundamental estoppel problem [appellant’s] (196 conduct nothing to her claims even after ceased." pursue [respondent’s] 1026.) at when was 17 conduct ceased p. Respondent’s appellant old and left the years household.
5. Senate Bill No. 108 1990, signed, Governor September Legislature passed, 1990, 1578) Bill section 340.1. This (Stats. amending
Senate ch. No. 108 (from age either an limitation legislation prescribes period eight-yеar later, for whichever occurs discovery period, or a from majority) three-year action The “to applies “childhood sexual abuse” civil actions. legislation 1, 340.1, (§ (k).) commenced on or after 1991.” subd. January did, Even if its The matter. amendment does not to the instant apply six before years limitation would have eight-year expired also discovery period may her three complaint. filed Its appellant her have filed expired complaint. before appellant 6. Without leave to amend amend, trial court
Before the demurrer without leave to sustaining complaint. trial an to amend the opportunity offered counsel appellant declined, Honor, the can’t The offer was trial counsel “Your stating: facts, are the do better than she has Complaint already. pled, facts as occurred.”
Under without leave to amend sustaining these circumstances demurrer was proper.
Disposition The judgment is affirmed. appeal respondent. Costs on are awаrded Lillie, J.,R concurred.
JOHNSON, J. dissent. respectfully I outset,
At the I majority opinion want to that the rationale of the highlight the previous colleagues Sixth District on which my principally affect limited cases like if appellant’s has best.1 It cannot rely application because, *10 is are filed on or after 1991. That as later January explained in has amended this the Code of Civil opinion, Legislature California the until a Procedure section 340.12 extend limitations expressly period to psychological injuries child abuse victim the the sex discovers cause of Thus, as an adult.3 or he the a child have been aware suffering may is fact realized it she or he was in at the time of the abuse or wronged way some does as to problems thereafter not start the statutory period psychological which surface later in life.4 limited, is this about a class of
Consequently, appeal really yet important child abuse victims—those who discovered cause of their adult psycho- the 1, 1991, logical injuries years more than three before аnd over January case, 1 Theprevious Sixth District DeRose v. Carswell 1011 196 [242 368], longer no even the provides support majority the slenderest of reeds to decision, opinion an opinion. present In filed one week after our filed the the division Sixth its alleges battery, District limited DeRose to cases and not plaintiff decision where the assault child (Daly sexual molestation. v. Derrick* (Cal.App.).) comprises only (sexual touching) gravamen molestation the of a that is the “[S]exual action, battery of cause . . . also the an in a but offender’s abuse of his status as adult trust, position authority and relationship of trust. The offender’s abuse ... in turn of of psychological blocking becoming creates prevent plaintiffs mechanisms that from aware of the psychological injuries of occurring that were at the time the abuse and could the future case, molestation, develop. continue to . . . of alleged simply The tort sexual as in this is not battery assault plaintiffs and under . . that another label. . We conclude [Citatiоns omitted.] pleaded have a tort not categories battery. subsumed within the of traditional assault not, therefore, DeRose does immediately dispose of this action.” The Sixth District then went on to hold discovery applies to the tort of “sexual molestation”—which the tort alleged though in the instant case—even it does not tort to the in DeRose—assault battery. consequence, As a a summary judgment it reversed which had been entered favor of the Daly. defendants in indicated, 2 Unlessotherwise statutory all to the references are Code of Civil Procedure. amended, 3 As section pertinent 340.1 reads in part: “(a) any civil recovery action for of damages as a result of sexual suffered childhood abuse, the time for commencement of the within eight years action shall be of date the plaintiff age attains the majority of or years within three of the date the discovers or reasonably should have occurring age discovered that injury or illness after the abuse, majority of was caused the sexual occurs later. whichever tt “(k) The amendments to this section enacted portion Regular at the 1989-90 apply Session shall to January action commenced on or after 1991. “(1)Nothing in (k) specified amendments preclude in subdivision shall be to construed the courts applying equitable exceptions running of the statute applicable to the limitations, including relating exceptions delayed discovery to injuries, respect to actions prior January commenced 1991.” 4 TheSixth District acknowledged likewise has amendments to section 340.1 have “essentially effect of rejecting holding and delaying in DeRose” commencement the statutory “psychological injury occurring for age majority” or illness after the Derrick, until its cause is discovered. (Daly supra. ) date, singled well.5 this out group Is to be age twenty-six on traumatic, equally and denied the their right compensation equally happened while those who injuries undiscovered expensive, equally few even a few months later the cause of their a discover unjustified are a I find a result is unfortunate remedy. allowed such both to these under the normal doctrine which applied principles cases before section 340.1 was amended. setting
I a demurrer majority upholds am concerned the The discovery including testimony. for a full factual hearing, expert cries out *11 injury her the to have discovered both clearly plaintiff doctrine requires (Neel & Olney, Levy, v. Cathcart wrongful Magana, the cause that injury. of 837, 421]; D. P.2d G. Searle (1971) 6 176 491 Cal.Rptr. Cal.3d [98 Gelfand 218]; April (1975) v. 22 Superior Cal.Rptr. Court 49 Cal.App.3d [122 Cal.Rptr. 805 (1983) 421] Inc. v. KTTV 147 Enterprises, Cal.App.3d [195 (and therein).) cases cited (1975) 14 Davies Krasna heavily
The
on
from
majority
quotations
relies
1161,
705,
like
535 P.2d
In the do not allegations complaint the case before this the of some or “wrongfulness” exclude the V. failed discover the possibility to all of the sexual in with Gardner until she reached allegedly engaged acts her late 20’s or 30’s. Evans v. Eckelman 216 early Under 605], running the does not commence period limitations [265 the arising recognizes “wrong- cases child until the victim out of abuse Thus, fulness” of the acts as the acts occurred. at abusive well as knowing her plead- minimum be to amend appellant should allowed opportunity ings to first of the various allege “wrongfiilness” when she discovered the forms of conduct complaint. 340.1, amended, eight (a), statutory years 5 Section subdivision extends is,
bеyond majority, age may have twenty-six, that no matter when the discovered ante, (See their p. 275.) cause. fn. Evans, abusing In three their uncle in for sexually brothers sued them earlier when The trial court twenty young children. grounds sustained a demurrer without leave to on statute amend 1970’s, limitations had in the reached after brothers expired shortly The Court reversed remanded to majority. Appeal permit plaintiffs amend their pleadings “wrongfulness” allege delayed discovery uncle’s conduct toward them. conclusion, reaching this surveyed the Evans court first scope rationale of the discovery rule as it has other fields developed the law. The court then these child cases. applied principles to abuse
“It has been widely recognized engendered the shock and confusion molestation, parental together may with the demands for secrecy, parent’s lead a child to or block the deny memory, traumatic events conscious or to turn the anger and inward that the himself or pain so child blames herself for the events. . . . Even where memory [Citations omitted.]. events themselves be some time before the victim suppressed, may *12 can face the full of the acts. . The impact . . parent- [Citations omitted.]. child omitted], is a confidential one relationship placing special [citation duties on the the parent for of the health and protection well-being, child’s well as special rights of and and custody parents, control. foster Stepparents, others in of positions similar the child. parental authority enjoy rights over [Citation omitted.]
“As a matter a practical child little or young has choice but to his repose her trust with a or parent When parental figure. such a abuses that person trust, he child, commits two the the wrongs, first the by sexually abusing second by using the child’s dependency and innocence to prevent recogni- cases, tion revelation of the abuse. . . in . As the professional negligence the application of delayed discovery rule would to the serve molestеr prevent from using the ignorance child’s and trust to conceal the tort. primary (216 1615-1616.) [Citation at Cal.App.3d omitted.]” pp. cases,
Having concluded the delayed rule child abuse applies the Evans court to proceeded distinguish DeRose v. Carswell 368], Cal.App.3d the the [242 decision upon majority in this opinion case relies so the heavily. “The DeRose court did not discuss here, contention made that of the plaintiffs unaware of wrongfulness defendant’s acts. Awareness wrongdoing accrual prerequisite to of of action under discovery rule. .”6 . . Carswell, 6The Sixth District which decided DeRose thoughts. likewise has had second decision, an filed one week we after filed instant the Sixth concluded that District “Plaintiffs mechanisms’ caused by here that among ‘blocking shame, liberally abuse were and self Construed ‘internalized blame.’ guilt abuse at the time allegations these show unawareness might plaintiffs’ of (216 Cal.App.3d acting wrongfully.” that defendant was original] [italics 1618-1619, added.) at first pp. italics
The were not sufficient complaint court out the pointed allegations wrongfulness determine remained unaware of the long how appellants remanded for possible their and the cause had to be uncle’s conduct thus cannot, law that it is psycholog- amendment. “We . . as a matter of . state ignorance lived in . . . continuing to have ically impossible plaintiffs unsettled what them . . . Given the state wrong. that was happened area, to plead law this be allowed an opportunity should plaintiffs (216 their delayed discovery wrongfulness.” claim of prove 1619.) p. blockage. V. suffered alleges psychological instant likewise complaint Evans, the issue true in her address specifically
As was does not complaint what was wrongfulness long whether for how she repressed Nevertheless, allege complaint repression her. V.’s does happening her the wrongfulness denial of a that could made unaware of nature have “As a if other claims: Among allegations, much not all conduct. deny, psycho- result of this . . was caused to repress, . еxperience [V.] feelings and from the from her of molest logically experience disassociate disassociation, which was which it in her as a of said caused result molested being sexually accommodation to the situation of *13 her father.
“As a and accommoda- result of said disassociation her psychological understanding knowing . . . plaintiff grew up perceiving, tion without injuries the existence and nature of the emotional and defendant’s caused. .” conduct . .
If under- this denial and rendered V. of repression, incapable dissociation caused, it is not standing emotional Gardner’s conduct alleged denied, from the she also and disassociated herself’ impossible “repressed, unaware of that at least as V. remained wrongfulness conduct. It is probable wrongfulness her into as it is of actions well adulthood stepfather’s con- three remained of their uncle’s brothers unaware of wrongfulness “wrongful comprehend in “sexual cases delayed molestation” is until victims Derrick, claims (Daly supra*: ness” of the conduct “Each molester’s toward them. reaching recongnized molesting only wrongfulness of conduct after [the teacher’s] that majority, at a for action. . . . conclude statutory period filing time within her [W]e they presented delayed discovery.”) have facts sufficient to raise triable issue of she, brothers, Accordingly, in like the duct for a Evans. Evans similar plead and prove allowed claim of “should be an opportunity [a] discovery wrongfulness.” of V.’s inter alia of majority complaint alleges stresses some acts struggle”
“violent and threats.” since the abuse was Accordingly, “violent will, she must have had taking place against wrongfully known she been and had when abused a cause of action she reached majority.
A argument rejected similar was made and in “Defendants argue Evans. will, their plaintiffs, by alleging accomplished against the abuse was consent, threats, without their and have conceded were by they means aware the in acts were But and others their wrongful. parents, acting place, often demand that children do against acts their will without their consent. Society regard does such assertions of parental authority wrong, even when threat of . . . Children accomplished by discipline. often grievances have their against To demand that a child assume parents. young order, wrongfulness any himself readiness to parental hold sue majority, (216 1619.) would be upon unreasonable.” p. case, In the instant there a further reject reason to V. must notion have known of the wrongfulness of her acts because stepfather’s For, case, accomplished against her alleged will. this it is many those Thus, acts were if consensual. even one were assume V. was aware of the wrongfulness of some of the acts of sexual abuse—perhaps those accompa- nied struggle”—that “violent does not mean she was aware of the wrongfulness of other acts which she engaged because of Gardner’s “positions parental authority relationship dependency [V.’s] trust him” upon or because his “bribery fаvors.” sexual Those consen- may sual acts well have been far more in the damaging psychologically long run than where yielded V. Yet merely force. because she had cooper- ated voluntarily V. have may repressed any feelings they represented wrong- *14 ful conduct.
I shall assume for the moment V. the wrongfulness of some appreciated of the acts of sexual did abuse but not appreciate—or repressed—the wrong- worst, fulness of others. At the that should mean the statute of limitations has run as to the solely former. If a substantial her adult amount of and physical psychological problems could be to traced consensual sexual activity whose denied, from, wrongfulness she repressed, or disassociated V. retain a would viable cause of at action least as to those acts and their unfortunate conse- Moreover, out, quences. as Evans points we cannot at assume the pleading 280 will understand the even of victim wrongfulness a child abuse
stage her to perform.7 cоmpels sexual acts parent those a I would remand V. the this cause to afford under Evans Accordingly, in a she is to position allege repressed the event to amend opportunity which a amount of the abusive conduct the all or substantial wrongftilness of caused her injuries. in Evans so dictate reversal clearly enunciated principles discussing I weaken the message by
demurrer in this case am reluctant to there are at least two dissenting. Yet length grounds alternative any which are of mention. worthy others
First,
did
until well into
harm that
not surface
complaint alleges
any
in kind and
from
harm
degree
adulthood. This harm was different
Like
at the time the abusive acts
committed.
mayV.
have experienced
silently,
harm matures
slowly
where the
asbestosis
similar cases
until
harm
not accrue
the cause of action for this “adult”
did
(See,
Associated
e.g.,
harm and its
cause.”
“wrongful
V. discovered that
(1932) 124
Indemnity Corp.
Cal.App.
v. Industrial Accident Commission
when
did
accrue
P.2d
of
on silicosis
not
action based
1075] [cause
[12
sufficiently
but when harm matured
plaintiff’s
shortened breath occurred
Commis-
v. Industrial Accident
substantially
function was
Marsh
impaired];
563];
D.
v.
P.2d
G.
Searle
sion
failed “discover” the molester’s conduct until Derrick, (Daly supra. ) decadе the issues “triable” nearly adults later. The court deemed though plaintiffs even about the molestations before complained had school authorities contempora written graduating. plaintiff It found the issue “triable” as one who also had “unclean” diary describing relationship molesting neous her teacher as entries in been “untrusive” and “unnatural” and another who told her mother the molester had *15 toward her. and
Assume actual” the experienced “appreciable injury V. of some sort at course, the time of the at demurrer lack stage molestation. Of we evidence emotional whether and how much or she have suffered injury may physical Nevertheless, at that time. let us assume she some experienced physical as in discomfort and emotional distress even sexual acts which consensual she with her Further she aware the engaged stepfather. assume was wrongfulness the her acts which caused those This does not mean injuries. to file then her shortly failure suit or after should foreclose reaching majority for the far different more harm she is recovering suffering serious Richardson-Merrill, (Martinez-Ferrer in later life. Inc. 591].) 316 [164
The Ninth Circuit in confronted a similar issue Simmons v. United States There, (9th 1986) Cir. 805 F.2d had government 1366. counselor in engaged sexual with a The four years relations sued later patient. patient limitation, a two-year asserting statute of despite delayed discovery. defense claimed the suit patient’s was barred statute of limitations because her injury started with “the emotional immediately suffered pain latest, having after first sexual . . . when intercourse. . or at the . . gossip her and about married her began to cause embarrassment [the defendant] humiliation.”
The Ninth Circuit held the was not that immediate plaintiff’s injury Instead, pain emotional the later “embarrassment and humiliation.” the trial court’s upheld finding “that plaintiff’s] injuries anxiety [the and despair which led her and the hospitalization attempted suicide depression she deep due to her experienced diagnosed what doctor post-traumatic stress She syndrome. did not until. her psychiatrist know . . her diagnosed first problem, that her counselor’s improper handling of transference phenomenon [having sex with the patient] had caused emotional and psychological in damage she suffered. . . . This is not a case which we can say, despite factual findings, should plaintiff] [the have known the cause of at an injuries agree earlier date. We with the reasoning a similar case psychiatric that ‘where the malpractice, injury and cause thereof are subtler and more than complicated normal case, it malpractice seems particularly to determine as a inappropriate matter of law what the plaintiff should have known.’ (805 F.2d [Citation omitted.]” 1367-1368.) pp.
The “appreciable and actual” majority find sufficient to acti- vate statute limitations the instant case are substantial equiva- lent immediate emotional pain “embarrassment and subsequent humiliation” the Simmons plaintiff These are the experienced. very sorts *16 start the as to
harm the Ninth insufficient to limitatiоns Circuit found injuries. a psychological plaintiff’s deep-seated it enacted Legislature the when I find it relevant to note what motivated it was clearly That understood body the of section 340.1. original version to the deep- delayed discovery principles the of authorizing application until well into harm does not surface ordinarily seated psychological of distress” “transitory damages adulthood—rather than the discomfort the the child the time of abuse. may experience other the section 340.1 for In the rationale behind explaining proposed “The wrote: Legislature, Judiciary members of the the Senate Committee during for years, can remain undiscovered problems roots the above trial expires. these cases to bringing which time the statute of limitations for as workers the statutes undiscovered-injury such asbestos other situations the hidden have been extended to take into consideration limitations Sheet, Com. on Jud. (Assem. Bill Sen. nature of the No. Fact injury.” Thus, adult Ses.), added.) the viewed the (1985-1986 Legislature italics Reg. to abuse as identical from childhood sexual resulting psychological injuries The to lawmakers resulting the asbestos. exposure disease asbestosis to allow lawsuits discovery had delayed principles knew courts applied and the victim matured a serious problem to be filed after the disease into Those were the was the cause of that problem. discovered asbestos exposure victims to to child sexual abuse courts to principles expected apply their them to file lawsuits when the psychological consequences allow end, version of original abuse in adulthood. To that ultimately emerged discovery apply “delayed section 340.1 authorizes courts to specifically of a to the accrual of a of action for sexual molestations exceptions cause minor.” in the
The made this intent even more Legislature explicit has revised, a amendment to As the code section allows expressly section 340.1. disсovers or lawsuit to be filed “within three of the date occur- injury should have or illness reasonably discovered (Code . . was the sexual abuse. .” ring age majority caused after Thus, Proc., 340.1, 29, 1990.) (a), Civ. amended Sept. subd. as § has made what intended all It means Legislature along. explicit to the which are based on psycho- causes action apply and illnesses which occur adulthood. logical injuries It evident intent. majority Legislature’s runs counter which mature adulthood. delayed discovery forecloses those It distress” the theory does so on of discomfort and “transitory damages victim when the abuse may represent “appreciable occurs experience *17 The sufficient to activate the limitations. majority actual” harm statute of victims realize the this discomfort “wrongful assumes child abuse cause” of abuse, of the Their of and distress at the time or thereafter. cause shortly then the as running action accrues and thus starts soon limitations reach majority. This rationale does not survive the 1990 amеndments to section clearly above, case, 340.1. More for of reasons recited significantly this because is of also inconsistent with the intent earlier versions legislative behind section 340.1 inconsistent with the of discov- judicial delayed doctrine as it has evolved in are ery California to hidden respect or slow mature.
The much majority opinion early makes of the termina- policy supporting Otherwise, tion to sue. will right potential enjoy defendants repose and courts will be asked to stale evidence. dependent decide cases on
There is much to be the other of said on side this debate. As to policy consideration, first should sex ever com- enjoy paying abusers repose balance, second, to their pensation deny victims? As to the on is it it to worth child abuse victims chance for the evidence be recovery just so won’t all, even slightly more than stale it will be in cases After already permitted? a victim molested at five four or could sue sixteen or seventeen agе later—at majority three plus years—no matter when she “discovered” cause of even action under the version which existed of section 340.1 when V. filed her suit. Memories don’t fade in the evenly. Most of loss occurs first few years. So it right makes little sense to V. her sue when the deny abusive acts occurred 15 to 23 years before on the evidence is grounds somehow too “stale” in her case while are like suits allowed other cases where the time span between event and is as long conceivably trial nearly longer. event,
In any there little and me to my colleagues argue reason over choice policy between defendant’s fresh desirability of repose evidence, hand, on one and a child sex abuse victim’s to sue for right on the compensation, other.8 That choice policy has been made for us 8 The Sixth District expressed has its on these views how values should be balanced in the following terms: policies claims, “The favoring unenforceability on one hand of stale as reflected in statutes limitation, of and on the hand remedy other allowance of a survivors childhood sexual abuse, as principle reflected in the discovery, inescapable stand in tension. We are well aware of problems proof facing parties litigation over that happened events more than a ago. decade are potentially devastating We also conscious impact accusations of sexual molestation .... Neither nor any these undeniable concerns other have their resolution of these expressed lawmakers state’s Legislature. intent through legislative section 340.1. The considerations competing policy struck law the Legislature behind version of that demonstrates original causes for late-discovered recovery favor of allowing balance *18 in and similar in has done asbestosis just action child sex abuse cases been to enough and fresh evidence had proved cases. The values of repose find The did not Lеgislature in cases. recovery asbestosis justify denying in cases child sex abuse sufficiently weighty deny recovery these values to either. amendments to even clearer in the 1990
The
choice is
Legislature’s policy
Now,
of
or five has
age
a
at the
four
plaintiff
section 340.1.
molested
suit,
bothering with
file
without
twenty-two years
or
twenty-one
much
places
Legislature
rule. That does not
suggest
then
Our state lawmakers
on
or fresh evidence
these cases.
value
repose
where
that period
of lawsuits
go
filing
beyond
on
authorize
expressly
does
in her adult
and
a
or illness
injury
suffers
plaintiff
psychological
Proc.,
340.1,
(a),
fn.
(Code
see
its
until later.
Civ.
subd.
not discover
cause
§
us
we
do to tell
where
supra.)
Legislature
What
could the California
more
recover
victim’s
right
strike the
a child
abuse
should
balance between
sex
evidence?
defendant
and fresh
values of
competing
repose
I
out-of-state
by
am more
yet
ground
dissenting,
persuaded
As
a third
than
and the
of commentators10
authority9
overwhelming majority
Carswеll,
1011
supra,
DeRose v.
196
opinion
Sixth District’s
effect on statutes of
on the
and its
question
repression
of
limitation. Even the Sixth District has conceded
a subsquent
child
victim is
begin
repressing
the limitation
does not
while a
abuse
D.
(Mary D. v. John
the abusive acts
occured.
any memory
actually
claims, however,
excepting
category
child
policy favoring prompt
justifies
assertion
of
of
when
begins
only
sexual
a
to run
a
hood
abuse claims
the rule that
statute
limitation
of
omitted],
or
know all
action
knows
should
essential to the cause
[citation
facts
of
of
Derrick,
wronged
(Daly v.
including the fact that he or she has been
[citation omitted].”
added.)
supra,
italics
9 See,
780];
e.g.,
(1991)
v.
v. Hammer
Riley
Presnell
Mass.
N.E.2d
Hammer
409
[565
239
States,
1363;
23];
supra,
The Supreme recently very Judicial Court Massachusetts considered the issue the majority here dismisses out of hand: aMay psychological injury plaintiff from of that thus prevent “discovering” very injury cause *19 the of the delay start limitations The court period? high Massachusetts in answered this the and a affirmative reversed question summary judgment which had granted been in favor of the defendant on statute of limitations Presnell, grounds. (Riley v. 780.) 565 N.E.2d supra, defendant, In Riley, had plaintiff the over psychiatrist, consulted a a treatment, decade before the lawsuit was filеd. the had During defendant sexual relations with patient, his as well as Valium and prescribing marijuana later, alcohol, Valium, smoking. Years the had become a marijuana abuser was serious He suffering went psychological problems. to another It over psychiatrist. was a he year into this treatment before the psychiatrist recognized his addictions and psychological problems caused by defendant psychiatrist’s actions the earlier during therapy, including his sexual relations with the plaintiff.
The link discovery causal between and the psychological problems first psychiatrist’s earlier sexual abuse and other conduct counterproductive came several years after the nominal had if statutory period expired. Only “discovery” of plaintiff’s cause of action was considered to have been delayed until he recognized the causal link he would bar escape statute of limitations.
Reasoning along lines similar to the in this case—but majority opinion least hearing after some evidence on the issue—the trial court granted summary judgment.
The Supreme in Judicial Court reversed to me what seems a sensible very which opinion with applies greater even power to the instant case. earlier, case, 11 Asnoted a filing week after the our opinions this Sixth District essentially emasculated the DeRose holding by stressing applied only to assault battery molestation,” causes of action and not to claims of childhood “sexual such as are involved in Derrick, (Daly the instant case. supra. ) v. whether was tortious conduct itself could question The held court which would a person reasonable problems prevent cause psychological link between that and the the causal conduct recognizing The then clarified what it meant suffering. he or was problems who this context. reasonable is one person by person” a “reasonable would, in an “If the the conduct. defendant’s conduct subjected to was prevents injury very its nature reasonable cause an ordinary person, cause, . to have accrued. . .An the action cannot be said discovery its the cause of action.” to mind could interfere with the injury 780, 786, Presnell, added.) The Massa- supra, 565 N.E.2d italics (Riley something not to be then ruled this was a jury question chusetts court high on the of some sort of decision nothing decided on summary judgment say in the as was done instant case. pleadings, that sexual abuse there is seriously question possibility
Can one “interfering] mind” can to the during “injury capable childhood result ongoing psychological of the cause” of the victim’s with the discovery as irrelevant majority replete The literature the dismisses problems. as a say I am certainly ready very evidence of this connection.12 *20 such producing child incapable matter of law that sexual abuse is who has suffered person” in the reasonable “ordinary block psychological I after a full-scale could be Perhaps persuaded this through experience. link between the causal hearing that this “discovered” particular bеfore long and her adult problems childhood of sexual abuse so, have run and she filed If the statute of limitations would this action. be would out court. of that
But we never have benefit majority under will victims like the class of child sex abuse hearing involving this or case section amendments to by covered 1990 express provisions door is neither fair to slam the courthouse my opinion, 340.1. wise nor this child sex victims have been so traumatized face of abuse who have been that it takes for them to experience comprehend of a behavior injured, wrongfulness parental figure’s awaken to 12See, Gelinas, Persisting Negative Incest (1983) Psychiatry, pages e.g., Effects 312-332; Kline, Treating in Adult Victims Child the Dissociative Process & Black-White Work, hood Incest (1985) pages of Contemporary Social Casework: The Journal Social 394-402; Distad, Experienced Who Post-Traumatic Stress Disorders in Women Linberg & Herman, Trocki, 329-334; Childhood Incest (1985) & Russell & Neglect, pages Child Abuse Psychi Long-Term Incestuous Abuse Childhood 143 American Journal Effects of atry, page 1293. them, or to uncover the true their cause of ongoing psychological misery. I
Accordingly, would reverse demurrer and allow the case to proceed.