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Adult Survivors of Childhood Sexual Abuse: Revisiting the California Statute of Limitations
Mark E. Roseman, Esq.
of the California Bar
The California legislature has taken a welcome and significant step forward in the interest of victims of childhood sexual abuse with the recent passage of AB 1651. The bill, effective January 1, 1999, is an amendment to California Code of Civil Procedure §340.1, the delayed discovery statute of limitations for the commencement of civil actions brought by adult survivors of childhood sexual abuse. /1/
Present law provides that the statute of limitations is tolled against a sexual perpetrator until the plaintiff's twenty-sixth birthday, or until within three years, after majority, she or he discovers or reasonably should have discovered that incurred psychological injury or illness was caused by the sexual abuse [Section 340.1(a), as amended 1994].
The new law reflects a growing social awareness that sexual abuse of children is an endemic problem that often translates into emotional and spiritual devastation. Current public discourse about incest and clergy sexual abuse represents an enlightened transformation in societal attitudes toward inappropriate sexual conduct involving children. The amended law epitomizes a continuing evolution of legislative sensitivity toward providing broader potential civil remedies heretofore unavailable to survivors of childhood sexual abuse.
Before the 1998 amendment to Section 340.1, California courts upheld the limitation of extended tolling application to the perpetrator only and not to others alleged to be negligent in the supervision or hiring of child sexual offenders. For example, in 1994, in Debbie Reynolds Studios v. Superior Court (1994) 25 Cal.App.4th 222, 30 Cal.Rptr.2d 514, the Second District decided that a twenty-six-year-old adult survivor plaintiff was barred by the one-year statute of limitations for negligence provided by Code of Civil Procedure §340(3) in an action against the dance studio. The court reasoned that Section 340.1 did not apply the statute of limitations to employers of sexual molesters but only to perpetrators of identified criminal behavior.
The year after the Debbie Reynolds Studios decision, I represented the plaintiff in a Second District case entitled Chaney v. Superior Court (1995) 39 Cal.App.4th 152, 46 Cal.Rptr. 2d 73. The case involved a twenty-two-year-old woman who alleged that the wife of her perpetrator had "special and confidential information" about her husband's "deviant and sexual preferences and desires" that the wife failed "to recognize, accept and interpret." The negligent supervision theory, framed to gain delayed discovery benefits beyond the standard one-year limitation for negligence, was based on alleged grooming of the plaintiff by the husband, known by the wife, that would have put a reasonable wife on notice of a husband's propensity to engage in sexual misconduct with a minor. The court barred the negligence action against the wife, holding that Section 340.1 applied only to the perpetrator of the intentional acts of sexual abuse and not "related, ancillary causes of action."
This resultant "legislative perpetrator restriction" has fostered a legal impediment to survivors whose abuse is made possible through the negligence or intentional acts of others.
While the key element for the occurrence of childhood sexual abuse is clandestine behavior, individuals or agents of business entities having special relationships with victims have been known to ignore and not act upon objective and obvious indicia of ongoing childhood abuse. Their failure to break the secrecy allows the abuse to continue.
The 1998 amendment to Section 340.1 broadens the scope of the tolling statute to include liability of persons or entities owing a duty of due care to a child where a negligent act is a legal cause of childhood sexual abuse committed by a separate actor. The legislature has "deputized" all heretofore nonmandated reporters, including all individuals standing in special relationships with children, commercial businesses targeted toward children, and organized religions, to be sensitized to child abuse.
The current Section 340.1 time accrual limitation to actual perpetrators has become a safe-harbor defense for persons and entities that may have negligently or intentionally contributed to an opportunity for, or a continuation of, childhood sexual abuse. With the amended law, these third parties are theoretically no longer legally insulated from responsibility toward children solely as a result of time marching onward.
As amended, Code of Civil Procedure §340.1 authorizes "[A]n action for liability against any person or entity who owed a duty of due care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse resulting in the injury to the plaintiff" [Section 340.1(a)(2), as amended 1998]. The amended section additionally provides for "[A]n action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff" [Section 340.1(a)(3), as amended 1998].
By broadening the base of potential defendants, the legislature has recognized and adopted as public policy the reality that children who are sexually abused by an authority figure do not possess a level of legal sophistication to allow them to identify legally culpable persons or entities beyond their direct perpetrators.
A recent decision by the Second District Court of Appeals illustrates the clear necessity for the 1998 amendment of Section 340.1. I represent the nine survivors of clergy sexual abuse in Mark K. v. Roman Catholic Archbishop of Los Angeles (1998) 67 Cal.App.4th 603, 79 Cal.Rptr.2d 73. Their common perpetrator was Fr. Theodore Llanos, a Roman Catholic priest. Between 1975 and 1990, Fr. Llanos sexually abused the young boys at five different parishes within Los Angeles and Orange Counties.
In 1996, the nine victims learned for the first time that the archdiocese was informed by parents of two victimized altar boys, no later than 1974, that Fr. Llanos had acted sexually inappropriately with boys. The parents received assurances from highly placed diocesan officials that the information relayed was significant and that "we'll take care of it...we'll handle this." Thereafter, Fr. Llanos was shifted to unsuspecting parishes, with free access to boys.
Shortly after being served with the complaint for damages, Ted Llanos committed suicide, the ultimate revictimizing act of unaccountability.
Recognizing the limitations on the accrual of time in the present Section 340.1 statute, I alleged an equitable estoppel tolling theory. The complaint alleged that in June 1996 the plaintiffs first became aware that the diocese was responsible for not protecting them from the errant priest and notice had been given to the diocese in 1973 of the priest's suspicious conduct with boys. Prior to 1996, the plaintiffs alleged they had no notice or information of circumstances to put them on inquiry notice of the diocese's identity, meaning its "sameness and oneness" in conjunction with the childhood sexual abuse perpetrated by the priest.
The trial court sustained the diocese's demurrer, without leave to amend, founded on a Section 340(3) one-year general negligence statute of limitations defense. The diocese had argued that the plaintiffs knew they were sexually abused by a Roman Catholic priest on church property at the time of the abuse. Hence, the diocese bootstrapped, and the court concurred, that the plaintiffs were aware that Fr. Llanos and the diocese were potential tortfeasors.
The plaintiffs responded that the diocese, by its broad, self-serving imputation of complex responsibility to young children, revealed an unrealistic and illogical understanding of how children think and how they process the impact of sexual exploitation by a priest.
The diocese had relied upon Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, to lace its bootstrapped argument on the strained premise that the plaintiffs, as children, should have been put on inquiry notice upon suspicion of wrongdoing by Fr. Llanos and therefore found their causes of action against the diocese time- barred because they were beyond their nineteenth birthdays at the time their complaints were filed in 1996. In Jolly, the plaintiff was time-barred for failing to bring a timely action against an identifiable manufacturer of DES.
The Second District agreed with the trial court, finding that the sexual misconduct of Fr. Llanos "put plaintiff(s) on inquiry notice regarding the potential liability of the church for acts of its negligence or intentional misconduct." In doing so, the court shifted a sophisticated legal burden to children of all religious and spiritual backgrounds who are caught in the unfortunate plight arising from sexually abusive clergy. That predicament, according to the professional literature on the subject, consists of moral dilemma, spiritual bewilderment, fear of fault and ramifications, anxiety, and mental avoidance conflicts about what to do and whom to turn to for help.
The appellants in Mark K. have filed a petition for review with the California Supreme Court; however their petition came in advance of the new law.
The 1998 amendment to Section 340.1 will bring a halt to statute of limitations defenses that religious organizations use when sued for negligent or intentional acts after notice is given to responsible clergy, about a perpetrating cleric, as alleged in Mark K.. Its enactment will be a practical tool for attorneys in future adult survivor cases.
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/1/ Civil lawsuits by adult survivors of childhood sexual abuse (CSA) are subject to the statute of limitations codified in California Code of Civil Procedure §340.1. The statute was recently amended by Assembly Bill 1651, signed into law on Sept. 30, 1998 by Gov. Pete Wilson. The amended statute, effective Jan. 1, 1999, permits the delayed discovery statute to be applied to perpetrators as well as liable third parties.
The bill provides, in pertinent part:
SECTION 1. Section 340.1 of the Code of Civil Procedure is amended to read:
(a) In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later, for any of the following actions:
(1) An action against any person for committing an act of childhood sexual abuse.
(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.
(3) An action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the Plaintiff.
(b) No action described in paragraph (2) or (3) of subdivision (a) may be commenced on or after the plaintiff's 26th birthday.
The full text of the new law may be accessed at www.sen.ca.gov.
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