Response ReplyCal. Super. - 6th Dist.April 20, 2018Paul E. Gaspari, State Bar No. 76496 Daniel C. Zamora, State Bar No. 224375 weintraub tobin chediak coleman grodin LAW CORPORA11ON 475 Sansome Street, Suite 1800 San Francisco, CA 94111 Telephone: 415.433.1400 Facsimile: 415.433.3883 Attorneys for Defendants DOE I and DOE 2 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MIKEMAHAXEY, Plaintiff, DOE 1, et al., Defendants. ) Case Vo. 18CV326874 ) ) DEFENDANT DOE I'S AND DOE 2'S ) REPLY IN SUPPORT OF DEMURRERS ) TO FIRST AMENDEDCOMPLAINTFOR ) DAMAGES ) ) Date: September 4, 2018 ) Time: 9:00 a.m. ) Dept.: 9 ) Judge: Hon. Mary E. Arand ) ) ) Complaint Filed: April20, 2018 ) ) ) ) (SF103813.DOC;3} REPLY IN SUPPORT OF DEMURRERS Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/24/2018 10:40 AM Reviewed By: S. Vera Case #18CV326874 Envelope: 1873461 I. INTRODUCTION. II. LEGALDISCUSSION. TABLE OF CONTENTS A. All Claims Arising From Childhood Sexual Abuse Are Subject To CCP 340.1. .2 B. There Is No "New" Claim Or "New" Limitations Period Resulting From Adult Injury Related To The Abuse.... 3 C. It Is Immaterial That Plaintiff Claims He "Repressed" All Memory Of His Abuse Until 2016; His Claim Is Still Time-Barred. ..4 D. Insurance Code Tolling Is Unavailable Because There Was No Limitations Period Left To "Toll"In 2016.. 5 S'D 0 Vl e 0u 'e Cl IP Zl z OO Sl A ! 0 RS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 E. The Court Amend. III. CONCLUSION Should Sustain This Demurrer Without Leave To ..6 25 26 27 28 {SF103813.DOC;3) REPLY IN SUPPORT OF DEVIURRERSll TABLEOF AUTHORITIES E ul c Cl E 0 V CI U c Cc z OO S! xC 3 Cl C, XoL l Cl . 9 10 12 13 14 15 17 18 19 Cases Doe v. Doe I (2012) 208 Cal.App.4th 1185 ... ! Doe v. Roman Catholic Archbishop ofLos Angeles (2016) 247 Cal.App.4th 953 ..... l ", Doe v. San Diego-Imperial Council (2015) 239 Cal.App.4th 81. Quarry v. Doe I (2012) 53 Cal.4th 945 'ubenstein v. Doe ¹. I (2017) 3 Cal,5th 903. Schifando v. City ofLos Angeles (2003) 31 Cal.4th 1074.. Statutes CCP )) 340.1 CCP I) 340.1(a). Ins. Code l) 11583. ...2,5 1234 3 ' 1,2 3 4 1,2 2 5 20 ! 21 22 23 24 25 27 28 ISF103S)3.DOC;3) REPLY IN SUPPORT OF DEMURRERS 111 I. INTRODUCTION In its moving papers, defendant Does 1 and 2 ("Defendants" ) detailed why Plaintiffs claims were barred by the statute of limitations. In Opposition, and faced with an insurmountable 4 half-century time-bar, Plaintiffchooses to simply ignore the California Supreme Court's landmark and controlling decision in Quarry v. Doe I (2012) 53 Cal.4th 945 on California Code of Civil Procedure section 340.1 ("Section 340.1"). In disregard of Quarry, Plaintiff advances three 7 primary arguments to avoid his limitations bar: S 0 I III E 0 a El Cl V L Tl 0 < C! x 0L v Q s 10 12 14 15 16 18 19 20 21 22 23 24 25 26 27 28 (I) That Section 340.1 does not set forth the exclusive limitations period for child abuse claims, such that by pleading various other legal theories, like "fraud," "gender violence," "intentional infliction of emotional distress," etc., Plaintiff actually has numerous different potential limitations periods with different delayed discovery, accrual and tolling theories available. (2) That Plaintiffactually has two (2) distinct abuse claims - one for the actual abuse from the 1950s and a second "timely" claim from 2016, measured from the date when he reported the abuse to entity Defendants Does 1 and 2, but allegedly received an unsatisfactory response. (3) That Plaintiffcan utilize "repressed memory" theory, claiming that he totally repressed all memory of his abuse when it occurred, such that his claims did not "accrue" half a century ago, but rather, first "accrued" in 2016 when he began recovering his alleged memories. Allthree of these theories are rejected by Quarry. First, both the language of Section 340.1 and the Quarry court made clear that Section 340.1 governs "any" civil action based upon damages suffered as the result of childhood sexual abuse. (CCP ) 340.1(a) and Quarry, 53 Cal.4th at 982.) A plaintiffcannot avoid a limitations bar for childhood sexual abuse by the manner in which he or she chooses to label a cause ofaction. Second, there is no "new" claim or "new** statute of limitations period based upon alleged distress experienced as an adult related to the childhood sexual abuse. (Quarry, 53 Cal.4th at j 982.) Ouarry and its progeny have made clear that a plaintiffwho is time-barred cannot allege re- I victimization or the onset of some adult "new" injury to avoid their time-bar. 1 Third, Quarry held that all "undiscovered" claims were barred by the 1998 amendment to Section 340.1, which imposed the "absolute" age 26 bar. (Quarry, 53 Cal.4th at 962, fn. 5, and 966.) Quarry explained that the purported reason why a plaintiffhas not "discovered'* his or her IsF103813.Doc;3) REPLY IN SUPPORT OF DKMURRKRS 1 claim was immaterial (whether due to memory repression or a failure to connect the abuse to 6 harm) because the Legislature chose to remove all common law delayed discovery and equitable tolling theories and imposed an absolute age 26 bar on filing in 1998. (Id. at 962, fn. 5, 966, 983- 984.) Plaintiffwas indisputably over age 26 in 1998 and, therefore, is subject the "absolute" bar. The purported reason for not making discovery - e.g., alleged memory "repression" - makes no difference. 'astly, Plaintiffs claim under Insurance Code section 11583 is still not viable. Plaintiff fails to address altogether Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 c o Cl L E 0o E4 o Ill o e Zl '" o o Sl %'ll u c Q u 'I 0 12 13 14 15 16 17 18 19 Cal.App.4th 953, holding that when the alleged section 11583 "payment of damages" (the therapy payment) occurs after the limitations period has lapsed, there is nothing left to "toll." Here, the 2016 payment occurred half a century after the statute lapsed and, therefore, it could not toll an expired limitations period. In sum, because Plaintiffs Complaint, and each cause of action therein, is time-barred, Defendants'emurrer should be sustained without leave to amend. II. LEGALDISCUSSION A. AllClaims Arising From Childhood Sexual Abuse Are Subject To CCP tj 340.1. Plaintiff simply asserts, without authority, that the label he chooses to attach to a cause of action should somehow alter the limitations period for his lawsuit seeking to recover for childhood sexual abuse. Therefore, he claims that by labeling the alleged misconduct as "fraud" or "gender 20 violence," he avoids his time-bar and avoids Quarry, 21 However, both the language of Section 340.1 and case law is clear that there is only one 22 special statute of limitations for childhood sexual abuse claims, Section 340.1. The statute is itself 23 unambiguous in its language. Section 340.1 applies to "an action for recovery of damages suffered 24 as a result of childhood sexual abuse." (CCP I'1 340.1(a).) It does not differentiate between causes 25 of action, but rather, to any "action" where "damages" are sought for "childhood sexual abuse.** 26 27 'laintifps entire discussion of Quarry in his 13-page Opposition is a two-sentence notation that (3uarry discussed memory repression. (Opp. 6:I D13.1 Of course, Quarry's discussion of memory repression rejects the argument he tries to advance. 1 SF I038 I3. Doc;3) REPLY IN SUPPORT OF DK'VIURRERS Quarry explained "[S]ection 340.1 purports to govern the limitations period for a~n civil 3 action based upon damages suffered as the result of childhood sexual abuse." (Quarry, 53 Cal.4th at 982.) (emphasis partially supplied.) Because Section 340.1 applies to any action for childhood sexual abuse, no matter what cause of action is asserted, the Quarry had no need to, and did not, separately analyze the limitations period for each of the fourteen (14) separate causes of action asserted by the plaintiffs in Quarry. (Quarry, 53 Cal.4th at 952.) 10 The Supreme Court likewise recently reiterated that Section 340.1 sets the limitations period for '*a cause of action alleging childhood sexual abuse". (Rubenstein v. Doe No. I (2017) 3 Cal.5th 903, 911; see also Doe v. San Diego-Imperial Council (2015) 239 Cal.App.4th 81, 83 ("Code of Civil Procedure section 340.1 sets forth the limitations period for actions to recover 1 2 damages for childhood sexual abuse.") In short, the unambiguous language of Section 340.1 and case law affirm that any action 14 seeking recovery of dainages for childhood sexual abuse is governed by Section 340.1 and 15 16 18 21 22 23 24 Plaintiffmay not avoid his time-bar by applying different labels to his causes of action. ( B. There Is Na "New" Claim Or "New" Limitations Period Resulting Prom Adult Injury Related To The Abuse. The Supreme Court was also clear in Quarry that a plaintiffcannot avoid the limitations bar by claiming some "new" distress or injury as an adult. The Supreme Court explained "[i]fthe Legislature had viewed adult psychological injury as a separate injury giving rise to a new cause of action with a new limitations period, it would be anomalous for the Legislature to restrict the availabilitv of the delayed discovery rule for third party claims to persons under the age of 26." (Quarry, 53 Cal.4th at 982.) The Court rejected the argument advanced here, namely that "adult injury constitutes a separate and distinct injury from giving rise to a new cause of action with its own limitations period." (Id.) 26 Last year, the Supreme Court again reaffirmed the principle that adult injury related to childhood abuse does not create its own cause of action with its own accrual date. (Rubenstein v. Doe No. I (2017) 3 Cal.5th 903, 915-916.) It reiterated that adult psychological injury does not (SFi03813.DOC;3) REPLY LN SUPPORT OF DEMURRERS 1 give risc to a separate injury or give risc to a new cause of action with a different limitations 2 period. (Id. at 913.) C. It Is Immaterial That Plaintiff Claims He "Repressed" All Memory Of His Abuse Until 2016; His Claim Is Still Time-Barred. 5; 6 In its moving papers, Defendants detailed how earlier iterations of Section 340.1 had specifically allowed common law delayed discovery and equitable tolling theories, but that all common law exceptions had been removed from the statute and by the 1998 amendment, and the Legislature imposed an "absolute bar" against actions by persons over age 26 regardless of e 0 h td Eo 0 lJ JC 05 '6 e V e 0 5 Sl Fc tl Ebe 10 12 13 16 17 whether or not they had "discovered" their claim. (See MPA: 4:6-5:5.) In response, Plaintiff simply asserts, without reference to law, that total "repressed" memory can be used to delay accrual. However, Quarry holds that the absolute age-26 bar prevents any type of delayed discovery theory from being asserted, notwithstanding the purported factual basis for the alleged delay. (Quarry, 53 Cal.4th at 962, fn. 5). Quarry expressly considered total memory "repression," along with other theories of common law delayed discovery. (See Quarry, 53 Cal.4th at 962, fn. 5 (comparing claims where plaintiffs "had repressed all memory" of the abuse with situations where they had only failed to appreciate the "connection" between the abuse and their damages).) Quarry explained that the purported factual rationale for the delay was immaterial, because "the 1998 atnendment to section 18 , 340.1 made it plain that causes of action against third parties lapsed when the plaintiffreached the 19 ) age of 26, notwithstanding "any alleged delay in discovery that adult psychological harm was 20 caused by childhood abuse." (Id.) (emphasis supplied.) 21 Thus, Quarry expressly rejected the use of memory repression to try to delay accrual. It 22 23 . 24 25 26 27 28 makes no difference whether or why a plaintiffhad allegedly not "discovered" his claim; the 1998 amendment imposed an absolute bar: [Tjhe 1998 amendment expressed the limit in absolute terms. It did not distinguish between discovered and undiscovered claims. (Quarry, 53 Cal.4th at 966.) As the Court explained, "the Legislature intended section 340.1, not common law delayed discovery principles, to govern the application of the statute of limitations to all late-discovered claims based upon childhood sexual abuse." (Id. at 984.) Therefore, {SF103813.DOC;3) REPLY IN SUPPORT OF DEMURRERS regardless of the purported reason, "any claim by persons who were 26 years of age of older as of 1998 was time-barred...whether the claims had been discovered or not." (Id. at 972.) (etnphasis in original). Here, because Plaintiffwas over age 26 in 1998, the lack of "discovery" of his claims, and the purported reason for the lack of discovery, are both immaterial. His claims are time- barred. D. Insurance Code Tolling Is Unavailable Because There Was No Limitations Period Left To "Toll"In 2016. C '0 0 e 0 Ill 'e Cl