Opinion
A144972 A144974
06-08-2018
JANE DOE, Plaintiff and Appellant, v. LIVERMORE AREA RECREATION AND PARK DISTRICT, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. RG14731935 & RG14732601)
Plaintiff Jane Doe alleges an employee of defendant Livermore Area Recreation and Park District (the District) sexually molested her for several years when she was a teenager. The trial court concluded her claim under the government claims statutes (Gov. Code, § 900 et seq.) was untimely, denied her petition for relief from the claims presentation requirement, and sustained without leave to amend the District's demurrer to her complaint. We shall affirm.
All undesignated statutory references are to the Government Code.
I. BACKGROUND
A. The Claim
Doe alleges that Richard McLeod, the coordinator of the District's after-school program, sexually molested her for several years, beginning when she was 13 years old and ending sometime between June 2006 and March 2007, when she turned 19 years old. McLeod was approximately 25 years old when the abuse began.
Based on the sexual abuse, Doe filed a claim for personal injuries with the District on December 6, 2013. She alleged McLeod persuaded her when she was a minor that there was nothing wrong with his actions and that, until he was arrested in September 2013, she did not realize that there was anything wrong or harmful about her prior sexual relationship with him, that she had suffered psychological injuries, or that he was the cause of those injuries. She alleged her claim did not accrue until that time. Doe simultaneously filed with the District an application for leave to file a late claim. The District did not act on Doe's claim (see § 912.4, subd. (c)), and denied her application for leave to file a late claim.
B. Petition for Relief from Claims Presentation Requirement
In July 2014, Doe filed in the trial court a petition for an order relieving her from the claims presentation requirement of Government Code section 945.4. (Doe v. Livermore Area Recreation and Park District (Super. Ct. Alameda County, 2014, No. RG14732601) (No. RG14732601).) In support of her petition, she submitted a declaration of Sanford R. Pepper, M.D., who opined that Doe "employed dissociative defenses that allowed her to remain unaware that the sexual relationship with McLeod was wrong or harmful and those defenses remained intact at least until about two weeks after McLeod was put under arrest by the Livermore Police Department on September 30, 2014 [sic] . . . . Until this time, [Doe] adopted the view of the adult community around her, including her mother, who closed their eyes to any harm that [Doe] might have been experiencing from the sexual predation and asserted to [Doe] that the sexual relationship was not harmful but neutral or beneficial." During Doe's relationship with McLeod, she asked her mother to help her buy birth control pills so she could continue her relationship without fear of pregnancy, and her mother complied. Dr. Pepper was of the opinion that Doe's mother "had to dissociate and construe the sexual abuse as part of 'growing up,' in order to protect herself," and that she absolved McLeod of responsibility. McLeod sent text messages to Doe in March 2013, and Doe contacted the police in order to block contact with him. The police investigated the matter, and McLeod was arrested. Until the arrest, Doe thought of herself as the instigator of the relationship, but after he was in jail, she realized that McLeod might have done something wrong.
Section 945.4 provides: "Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with [the government claims statutes] until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, . . ." Section 946.6 authorizes a party to bring a petition in the court for an order relieving the petitioner of the claims presentation requirements. (§ 946.6, subd. (a).) The court may relieve the petitioner of those requirements if, inter alia, the application for leave to present a late claim was brought within a reasonable time "not to exceed that specified in subdivision (b) of Section 911.4"—that is, not more than "one year after the accrual of the cause of action." (§§ 946.6, subd. (c); 911.4, subd. (b).)
The trial court allowed the District to conduct limited discovery regarding Doe's assertion that accrual of her claim had been delayed. The District submitted evidence that Doe began having sexual relations with McLeod when she was 13 years old, in seventh grade. She attended the District's after-school program through the summer after eighth grade, but continued her sexual relationship with McLeod off-and-on until she was 18 years old. When Doe was 16 years old, she told her mother she needed birth control and that she was having sexual relations with McLeod.
McLeod was investigated by the Livermore police for having sexual relations with minors several years before Doe filed her complaint, and the police spoke with her. At the time, Doe said that she had never "[done] anything with him."
Doe dated a man named Brian beginning in approximately 2010. About six months after they began dating, Brian encouraged Doe to report McLeod to the police because McLeod had abused her as a minor. In 2011 or 2012, she told another friend about her prior sexual relationship with McLeod, and the friend encouraged her to go to the police.
Doe began seeing a therapist in June 2012. The therapist's treatment notes indicate they discussed the molestation; that Doe found it "weird" that she had never considered his behavior inappropriate; that she had asked her mother to help her get contraception at age 14 and begged her mother not to tell anyone about the relationship; and that she wanted to talk to her mother about why she had never reported the molestation.
The trial court denied Doe's petition and dismissed the matter. It concluded her cause of action accrued when Doe's mother learned Doe was having sexual relations with McLeod and that the claim was untimely. (§§ 911.2, 911.4.)
C. The Complaint
Shortly after filing her petition in the trial court, Doe also filed a civil complaint for damages based on the sexual abuse, alleging causes of action against the District for sexual molestation, negligent hiring, intentional infliction of emotional distress, failure to discharge a mandatory duty, and sexual harassment. (Doe v. Livermore Area Recreation and Park District et al. (Super. Ct. Alameda County, 2014, No. RG14731935.) The District demurred to the complaint on the grounds that Doe filed her complaint prematurely, before the court ruled on the petition for relief from the claims presentation requirement and that the causes of action were time barred. After the trial court denied Doe's petition in case No. RG14732601, the trial court sustained the demurrer without leave to amend and dismissed the action with prejudice as to the District.
Doe appealed from the dismissals both of her petition and of the complaint, and we consolidated the appeals. McLeod was also named as a defendant in the complaint; he was not a party to the demurrer and is not a party to these appeals.
II. DISCUSSION
Doe contends the trial court erred in finding her causes of action time-barred based on her failure to present her claim to the District in a timely manner. According to Doe, her complaint is subject to demurrer on this basis only if the question of accrual may be determined as a matter of law; she asserts there is a factual question as to the time of accrual that should be decided by a jury.
"Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. [§ 911.2.] . . . [¶] Timely claim presentation is not merely a procedural requirement, but is . . . ' " 'a condition precedent to plaintiff's maintaining an action against defendant' " ' [citations], and thus an element of the plaintiff's cause of action. . . . [¶] Only after the public entity's board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against the public entity. (Gov. Code, §§ 912.4, 945.4 . . .) The deadline for filing a lawsuit against a public entity, as set out in the government claims statute, is a true statute of limitations defining the time in which, after a claim presented to the government has been rejected or deemed rejected, the plaintiff must file a complaint alleging a cause of action based on the facts set out in the denied claim. (Code Civ. Proc., § 342; Gov. Code, § 945.6; [citations].)" (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208-209 (Shirk).) The deadline for filing a government claim for personal injury is six months after accrual of the cause of action. (§ 911.2, subd. (a).)
The issue in this case is when Doe's cause of action accrued. In her opening brief, Doe contends that her claim was timely under the delayed discovery provision of Code of Civil Procedure section 340.1, which provides: "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 . . ." (Code Civ. Proc., § 340.1, subd. (a).)
After briefing in this case was complete, the California Supreme Court decided Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903 (Rubenstein). The plaintiff there was sexually abused by a coach as a high school student from 1993 to 1994. She filed a claim and later a lawsuit against the defendant public entity in 2012, alleging latent memories of the sexual abuse had resurfaced in 2012, when she was 34 years old. (Id. at p. 905.) Under the statute of limitations generally applicable to damages suffered as a result of childhood sexual abuse, her action had never lapsed; pursuant to Code of Civil Procedure section 340.1, subdivision (a), such an action must be brought "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 . . ." (Rubenstein, 3 Cal.5th at p. 909, fn. 1.) However, because the defendant was a public entity, the initial question before the court was whether the claim was presented in a timely manner—a condition precedent to maintaining a civil action. More specifically, the court was called upon to decide whether Code of Civil Procedure section 340.1 provided a new accrual date for purposes of the claims presentation rule. (Id. at p. 910; § 901.)
At our request, the parties submitted supplemental briefs on the effect of Rubenstein on this case.
Section 901 provides in part: "For the purposes of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon."
The court answered this question in the negative. The court distinguished between statutes that postpone the accrual date of a cause of action and statutes that toll the running of the statute of limitations. (Rubenstein, supra, 3 Cal.5th at pp. 910-913; see V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 510 ["while [Code of Civil Procedure] section 340.1 extends the time during which an individual may commence a cause of action alleging childhood sexual abuse, it does not extend the time for accrual of that cause of action"].) The court reasoned: "While a cause of action for childhood sexual abuse generally accrues much earlier 'in the ripeness sense'—a plaintiff will have a ripe cause of action that could be brought much closer in time to the alleged abuse—[Code of Civil Procedure] section 340.1 creates 'a separate and distinct date for the beginning of the limitations period' [citation] in certain child sex abuse cases involving latent injuries, i.e., '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.' [Citation.]" (Rubenstein, at pp. 912-913, relying on Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1144-1145 [distinguishing between accrual of cause of action for asbestos-related injury and beginning of limitations period of Code of Civil Procedure section 340.2].) Under the accrual rule, the plaintiff's cause of action "had accrued in the ripeness sense at the latest in 1994, the time of the last alleged molestation. Section 340.1 did not delay accrual or cause the action to reaccrue." (Rubenstein, at p. 913, italics added.) The court went on, "For purposes of the claim presentation requirement, the cause of action accrued when the abuse occurred—and, additionally, no cause of action accrued at the time the latent injury stemming from the abuse was discovered." (Ibid., citing Shirk, supra, 42 Cal.4th 201.)
The question in Shirk was whether a statutory provision that " 'revived' " for the calendar year 2003 claims that would otherwise have been barred by the statute of limitations (Code Civ. Proc., § 340.1) applied when the plaintiff did not present a timely claim against a public entity. (Shirk, supra, 42 Cal.4th at pp. 204-205.)
In reaching this conclusion, our high court considered two related contentions. First, the plaintiff argued that the equitable doctrine of delayed discovery was applicable to her case. The court rejected this argument: "[O]nce we conclude, as we do, that [Code of Civil Procedure] section 340.1 did not establish a new accrual date, our reasons for rejecting a similar argument in Shirk, supra, 42 Cal.4th at p. 214, apply here. We there explained that 'it seems most unlikely' the Legislature intended to permit a late claim for someone who discovered only in 2012 'a new injury attributable to the same predicate facts underlying a cause of action previously barred by failure to comply with the government claims statute.' (Ibid.) As we concluded in Quarry v. Doe 1 [(2012) 53 Cal.4th 945,] 984, 'we do not believe the Legislature intended that common law delayed discovery principles should apply to cases governed by section 340.1." (Rubenstein, supra, 3 Cal.5th at p. 915, fn. omitted.)
Second, the plaintiff in Rubenstein argued her delayed adult realization of her injury created a new cause of action with its own accrual date. The court rejected this argument, explaining that "adult psychological injury [was not] an entirely separate and new injury" with a new limitations period. (Rubenstein, supra, 3 Cal.5th at pp. 915-916.)
Rubenstein is dispositive. The last alleged act of abuse against Doe took place no later than 2007. At that time, her cause of action against the District had accrued, and it did not later reaccrue. (See Rubenstein, supra, 3 Cal.5th at p. 913.) Nor did a new cause of action accrue at the time Doe discovered she had been injured by the abuse. (Ibid.) She did not present her claim to the District until December 2013, well after the time for filing a claim had expired. Her simultaneous application for leave to file a late claim was presented after the deadline for making such an application—one year after accrual of the cause of action. (§§ 911.4, subd. (b); 946.6, subd. (c).) She is therefore barred from bringing an action against the District.
In 2008, in response to Shirk, supra, 42 Cal.4th 201, the Legislature eliminated the claims presentation requirement for "[c]laims made pursuant to section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse." (Stats. 2008, ch. 383, § 1; see A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1258.) However, this provision only applies prospectively to "claims arising out of conduct occurring on or after January 1, 2009." (§ 905, subd. (m).) It does not affect the timeliness of Doe's claim, which is based entirely on conduct that took place before that date. (See Rubenstein, supra, 3 Cal.5th at p. 914 ["This amendment does not directly apply here. No one is arguing that the claim requirement does not apply to plaintiff at all; instead, the parties are disputing whether her claim was timely under then-existing law"].)
Doe's arguments to the contrary are unavailing. She contends Rubenstein, supra, 3 Cal.5th 903 is inapplicable because she employed "dissociative defenses" that prevented her from realizing her sexual relationship with McLeod was wrong or harmful until after he was arrested in September 2013. Thus, according to Doe, she is relying not on Code of Civil Procedure section 340.1's extension of the limitations period for known abuse, but on the principles of delayed discovery that postpone the accrual of a cause of action altogether. For this proposition, she relies on Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398, which explains that under the "discovery rule," the accrual of a cause of action is postponed until the plaintiff discovers, or has reason to discover the cause of action; this occurs when the plaintiff "at least suspects a factual basis, as opposed to a legal theory, for its elements." (Italics added.) Norgart does not assist plaintiff. The factual basis for her causes of action is that McLeod began a sexual relationship with her when she was 13 years old, which continued until her early adulthood. There is no allegation she was unaware of these facts.
In denying Doe's petition for relief from the claims presentation requirement, the trial court concluded her cause of action had accrued when her mother learned Doe, still a minor, was having sexual relations with McLeod. (See V.C. v. Los Angeles Unified School Dist., supra, 139 Cal.App.4th at pp. 515-516 [delayed discovery doctrine inapplicable where minor's mother suspected alleged molestation]; Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1409, 1422-1423 [trial court must grant leave to amend complaint to allege that, given his youth at time of abuse, "he lacked a real awareness, until his mother's discovery of the alleged molestation, that what happened to him between the ages of five and eight was wrong" (italics added)]; J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1224-1225 [cause of action for sexual abuse accrued, at latest, when minor's parents appeared and spoke at sentencing hearing].) We are not persuaded by Doe's argument that this rule does not apply because her mother had psychological defenses that prevented her from realizing the sexual relationship between her minor daughter and an adult man was wrong. In any case, as we explain, Rubenstein establishes that the claim was untimely.
In support of her delayed discovery argument, Doe also relies on K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229. The appellate court there concluded that the plaintiff's allegations that a high school teacher had caused her to have a dependent sexual relationship with him, in which she believed he had done nothing wrong, and that she did not realize until later that she had been victimized by the teacher, were sufficient to invoke the delayed discovery rule of accrual. (Id. at p. 1243.) However, in Rubenstein, our high court stated that K.J. "erroneously concluded that [Code of Civil Procedure] section 340.1 affected the accrual date of a claim for childhood sexual abuse, and that the delayed discovery doctrine made the late claim timely." (Rubenstein, supra, 3 Cal.5th at p. 916, fn. 3, italics added.) The court therefore expressly disapproved K.J. to the extent it was inconsistent with its decision in Rubenstein. (Ibid.) K.J. does not assist plaintiff.
Finally, plaintiff suggests Rubenstein is inapplicable because she presented her claim before her twenty-sixth birthday—that is, within eight years of her majority. A footnote in Rubenstein states, "We do not address any question regarding those plaintiffs whose civil actions would be timely under [Code of Civil Procedure] section 340.1, subdivision (a), without reliance on the statute's delayed discovery provisions because they are brought within eight years of majority. Specifically, we do not decide whether such a plaintiff may rely on judicially recognized principles of delayed discovery to postpone accrual for purposes of Government Code section 911.2." (Rubenstein, supra, 3 Cal.5th at p. 915, fn. 2.) The court's reservation of the issue does not aid plaintiff. Although she presented her claim within that time frame, she filed her civil action in July 2014, several months after she reached the age of 26.
III. DISPOSITION
The judgments are affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------