RUBENSTEIN v. DOE NO. 1

Respondent’s Opening Brief on the Merits

Cal.August 16, 2016

$234269 ° IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ee SUPREME COURTDefendant and Petitioner, | v. FILED LATRICE RUBENSTEIN, AUG 16 2016 Plaintiff and Respondent Frank A. McGuire Clerk Deputy OPENING BRIEF ON THE MERITS After a Decision From the Court of Appeal of California, Fourth Appellate District, Division One, Case No. D066722 *Lee H. Roistacher, Esq. (SBN 179619) Richard J. Schneider, Esq. (SBN 118580) Daley & Heft, Attorneys at Law 462 Stevens Avenue, Suite 201, Solana Beach, CA 92075. Tel: (858) 755-5666 / Fax: (858) 755-7870 Attorneys for Defendant and Petitioner: Doe No. 1 Leila Nourani (SBN 163336) Sherry L. Swieca (SBN 198700) Douglas M. Egbert (SBN 265062) Jackson Lewis P.C. 725 S. Figueroa Street, Suite 2500 Los Angeles, CA 90017 Tel: (213) 689-0404 / Fax (213) 689-0430 Attorneys for Defendant and Petitioner: Doe No. 1 $234269 © IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DOE NO.1, Defendant andPetitioner, Vv. LATRICE RUBENSTEIN, Plaintiff and Respondent OPENING BRIEF ON THE MERITS After a Decision From the Court of Appeal of California, Fourth Appellate District, Division One, Case No. D066722 *Lee H. Roistacher, Esq. (SBN 179619) Richard J. Schneider, Esq. (SBN 118580) Daley & Heft, Attorneys at Law 462 Stevens Avenue, Suite 201, Solana Beach, CA 92075 Tel: (858) 755-5666 / Fax: (858) 755-7870 Attorneys for Defendant and Petitioner: Doe No. 1 Leila Nourani (SBN 163336) Sherry L. Swieca (SBN 198700) Douglas M. Egbert (SBN 265062) Jackson Lewis P.C. 725 S. Figueroa Street, Suite 2500 Los Angeles, CA 90017 Tel: (213) 689-0404 / Fax (213) 689-0430 Attorneys for Defendant and Petitioner: Doe No. 1 TABLE OF CONTENTS I. Issues Presented.............ccccecsecsscasceeseescesceeaes be eteeeeseeeens 1 II. Introduction And Summary Of Argument.................0c00082 III. Factual And Procedural Statement...............ccccccecesseeeeees9 A. Doe returned as untimely Rubenstein's 2012 claim for childhood sexual abuse and denied Rubenstein's application for permission to presenta late claim........Sede eebee nee eaeeaeesetseeeecesvesees9 B. Thetrial court granted Rubenstein relief from the Act's claim presentation requirements............. 10 C. Rubenstein's first amended complaint................... 12 D. Trial court sustained Doe's demurrer without leave to amend because Rubenstein did not and could not timely comply with section 340.1's certificate of merit requirements..............ccceceeeeeee 12 E. Court of Appeal held that section 340.1 governsthe accrual date of Rubenstein’s childhood sexual abuse cause of action against Doe for purposes of the Act’s six-month claim presentation deadline and determined that Rubenstein timely complied by presenting her claim within six monthsof discovering repressed memories Of the abuse............cceceeseesseevceseeeenserees 13 IV. Section 340.1's Delayed Discovery Provisions Do Not Govern The Accrual Date Of Childhood Sexual Abuse - Causes Of Action For Purposes Of The Act’s Six-Month Claim Presentation Deadline..............cccccceeceeeeceeeesceeees 16 The Act's claim presentation requirement and deadlinesare policy-based and Strictly construed..........ccsceecescesesceseceeevesacs 17 Section 340.1 and its limitation period for childhood sexual abuse causesof action is at odds with the Act's purpose..................22 - Section 340.1 does not govern or impact when childhood sexual abuse causesof action accrue for purposesof timely compliance with the Act’s claim presentation eadlines..........ccecscesceccecceececceseseescesaceeeees 25 Section 340.1 does not control when childhood sexual abuse causes of action accrue becauseit is a statute of LimItatiONS..........ccccceceseccsevsceseeveescesecceneuscs25 V.C. and Shirk establish that the Legislature never intendedfor section 340.1 to impact when childhood sexual abuse causes of action accrue for purposesof the Act’s claim presentation deadlines...............28 a. Vi Cuisevecceeeeeeetseeeteeeeee enna ae eenteen nnn 28 b. SDILK. icc cccccccnscneeceueneeneuveseuscsvavsesees 31 The reasoning of County ofLos Angeles supports the conclusion that section 340.1 does not govern whenchildhood sexual abuse causes of action accrue for purposes of the Act’s six-month claim presentation deadline or one-yearlate claim application eadline..........cscccsceeccececcceeceertcceseueceeseeecs34 il V. Government Codesection 905, subdivision (m) andits legislative history confirm the Act requires presentation of a claim within six monthsof the abusefor childhood sexual abuse causesof action based on pre-January 1, 2009 conduct...............ccecee eee 39 Attempted amendmentsto section 340.1 subsequent to the enactmentof Government Codesection 905, subdivision (m) further evidence the Legislature's intent when enacting Government Codesection 905, subdivision (m) to keep in place existing case law requiring presentation of a claim within six months of the abuse for childhood sexual abuse causes of action based on pre- January 1, 2009 conduct............cececeeseseeceees52 COoncluSion.......ccccccccsccccccccccesacscecescsecestescssecsessveceeneees54 CERTIFICATE OF WORD COUNT.........cccceeee see eeeeeeenaees 56 iii TABLE OF AUTHORITIES Cases Aulanto Properties, Inc. v. City ofHalfMoon Bay (2006) 142 Cal.App.4th 572........cccccccssccesscessccsseceseeessnsAl Alcott Rehab. Hosp. v. Superior Court (2001) 93 Cal.App.4th 94........cccccccccccccesceeeeeeeesseaseeanens 27 Altaville Drug Store, Inc. v. Emp't Dev. Dep’t (1988) 44 Cal.3d 231.0... cccccsccccsesesccecceseecueaeeeeseeseeeaes 39 Aryeh v. Canon Business Solutions, Inc. (2018) 55 Cal.4th 1185.........cccsseccsssssseseeeeeceecessseseeseeees 25 Auto Equity Sales, Inc. v. Superior Court - (1962) 57 Cal.2d 450........ccccccssssceeesessseeseeeeeseeseeeeeesesesees4 Boy Scouts ofAm. Nat Found. v. Superior Court (2012) 206 Cal.App.4th 428.......ccccccccecccssccesscesseeeeeeesens25 Brandon G.v. Gray (2003) 111 CalApp.4th 29.......cccccccccccccsscesccseveaseeeenes 19 Cent. Pathology Serv. Med. Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181.......ccccccccscessessessesessseeeseseseeseeens38 City ofStockton v. Superior Court (2007) 42 Cal4th 730........cccccecsesesseseaceceeeeecenerseaas Passim Conservatorship of Whitely (2010) 5 Cal.4th 1206.......ccccccccccsesssessesestesscessseeseeesenees39 County ofLos Angeles v. Superior Court (2005) 127 Cal.App.4th 1263..........ccccccsccseseeserseees Passim DiCampli-Mintz v. County ofSanta Clara (2012) 55 Cal.4th 983...........0008dee eeeee eae cenene een eees 17, 20 Doe v. City ofLos Angeles (2007) 42 Cal.4th 531........ccccccssccscecesasceseecenceees26, 37, 39 iv Doe v. Roman Catholic Archbishop ofLos Angeles (2016) 247 Cal.App.4th 953.........ccccccccscceesesceeeeceuseceess 19 Fistate ofHeath (2008) 166 Cal.App.4th 396.........cccccccseccseeesesesesee scenes 51 Estate ofHorman (1971) 5 Cal.3d 62... ..c.cccccccccseccnececcecetceveeseucsetceeeusensns9 Eu v. Chacon (1976) 16 Cal.3d 465......cccccccccccceescuscevcesceccesceuscuceeeensAl Freedom Newspapers, Inc. v. Orange County Retirement BoardofDirectors (1993) 6 Cal.4th 821.......ccccccscccesseteceeceeceseeteeeessneeees 53 Goldstone v. County ofSanta Cruz (2012) 207 Cal.App.4th 1038.........ccccccessssscsessesseeesenees 51 Hassan v. MercyAm. River Hosp. (2003) 31 Cal.4th 709... cccccsccessseceecesssnteeceesnaeeeeeeeas 39 In re Hansen (2014) 227 CalApp.4th 906...........cccccscceseeceseeescescsseeenes 4 Jackson v. Doe . (2011) 192 CalApp.4th 742.......ccccccceeeeeesovessecuecasaeeeees 12 John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438........ccccccesccccesccusceeseeseseecenensPassim Kachlon v. Markowitz (2008) 168 Cal.App.4th 316.........cccccccccesccesceeeeseenssenesees 39 KJ. vArcadia Unified School Dist. (2009) 172 CalApp.4th 1229......ccccccceccsessesseeesseesesseenees 15 Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 6O1..........cscessssssseeeceeseeceeeseenseessesees.39 Lee v. Hanley (2015) 61 Cal.Ath 1225..........cecccsccccececusccescecesescececeseucs Al Marina Point, Ltd. v. Wolfson (1982) 80 Cal.Bd T21.cccccccceccccsccsccssscecsseeeceeeecsseneeeeeees51 McVeigh v. Doe 1 (2006) 138 CalApp.4th 898........0..cccccceeesseeceeeees veeeeueeeee 12 Metcalf v. County ofSan Joaquin (2008) 42 Cal.4th 1121.........cccccceccceceecessteceeseeaseseeaseass 17 Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385.......cccccccecccsesssesscusesecaue cessAl Quarry v. Doe 1 (2012) 53 Cal.4th 945.......cccccsssccccecsessstseeeeceeseeeeaePassim Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26........:cccccssscceceeceeceetseeeeaeeaeeeaeaaeaes 39 Sharon S. v. Superior Court (2003) 31 Cal.4th 417.......c.cccccsscccceceeseesesesseesesseseesenss39 Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 499.........ccccccccceeeeecesccecee ene seeuseesPassim Travis v. County ofSanta Cruz (2004) 33 Cal.4th 757.....cccccccccsssceeceecerstseeseeseeeseneensaens23 V.C. v. Los Angeles Unified School Dist. (2006) 139 CalApp.4th 499........cccccccesccccccsesceeseeesPassim Vergara v. State (2016) 246 CalApp.4th 614.......ccccccsssccsesessceseseeseeeescsaees 9 Western Security Bankv. Superior Court (1997) 15 Cal.4th 2320.0... cccccccesseeccecesteeeeeeseeeeeseeneaes41 Wittenburg v. Beachwalk Homeowners Assn. (2013) 217 CalApp.4th 654........ccccccecsessssescesseeeeelenesees 39 Vi 23 Statutes Code of Civil Procedure § 340.1..........cccceccesceeeeeeeeeeeeeeeees Passim Code of Civil Procedure § 342..........ccceccseceeseesceeencseneeeenees 36, 37 Code of Civil Procedure § 350..........ccscscecceceseeeceseeneeeeeeetsaeenes 25 Code of Civil Procedure § 352.........ccccscssesescccseesesseeeseses PASSIM Code of Civil Procedure § 352.1.........cccccccencec ene eneeeeeeeeeeteanenes 18 Government Code § 810.........cccccecceceeeceeeeeeeneeeeatenesnenseesteeenss 2 Government Code § 901..........cccceceeceeseeeeeneeeenseeeeteeeeneenens 14, 19 Government Code § 905...........ccccccecssseeeneeeeeseeenenseneeeenes Passim Government Code § 911.2...cc cccccecseee eee seneeeeeceneensenenes 2,31 Government Code § 911.4.........cccccesecseneeceeeaee een eeetesenenes Passim Government Code § 945.6............cseceeceeseeeeeeeeeeeees beeeeeeesPassim Government Code § 946.6.........cccccecsceeseeeeeeeeneeesasenserees Passim Vil I. Issues Presented A. Does the Government Code's strictly construed claim presentation deadlines (deadlines requiring presentation of a claim no later than six months after the cause of action's accrual and requiring presentation of an application for leave to present a late claim no later than one-year after accrual) apply regardless of the delayed discovery provisions of Code of Civil Procedure section 340.1 (section 340.1)? B. Inlight of the 2008 amendment to Government Code section 905, subdivision (m), where the Legislature - in response _ to this Court's decision in Shirk v. Vista Unified School District (2007) 42 Cal.4th 201 (Shirk) - eliminated the claim requirement for only those childhood sexual abuse causes of action based on conduct occurring after January 1, 2009, should an adult victim of childhood sexual abuse occurring before January 1, 2009 be barred from suing a governmententity if he or she failed to present a claim to the government entity within six monthsof the abuse? II. Introduction And Summary OfArgument The answerto both issues presented is "yes." This case is about the interplay between the Government Claims Act (Government Codesection 810, et seq.) (Act) and section 340.1 and their competing public policies. The Act requires promptnotice to a governmententity of claims against the entity for the purposes of timely investigation, remediation, andfiscal planning. It imposes special, short, and strictly- enforced requirements and deadlinesfor those wanting to sue a government entity.1 (See Shirk, supra, 42 Cal.4th at p. 213 (discussing policy); City ofStockton v. Superior Court (2007) 42 Cal.4th 730, 738 (City ofStockton) (same).) In contrast, section 340.1 creates special, extended limitation periods for adults bringing childhood sexual abuse causesof action against abusers and non-perpetrator third parties. Section 340.1 embodiestherecognition that victims of 1For example, before suing a government entity, one must present a claim to the governmententity within six monthsof the cause of action’s accrual. (Shirk, supra, 42 Cal.4th at pp. 208- 209; Government Code §§ 905, 911.2, subd. (a).) Doe provides a detailed discussion of the Act's requirements and deadlines later in this brief. childhood sexual abuse may not understand, appreciate, or remember the harm they have suffered or the full effects of it until adulthood, and for these reasons, causes of action of this nature warrant extended limitation periods. The Legislature has weighed the competingpolicy interests behind the Act and section 340.1 and drew a bright line. In 2009, the Legislature enacted Government Codesection 905, subdivision (m) to exempt section 340.1—based childhood sexual abuse causesof action from the Act’s claim presentation requirements and deadlines. It did so, however, only for claims based on conduct pre-dating the January 1, 2009 effective date of Government Code section 905, subdivision (m). As demonstrated by precedent, including Shirk, andthelegislative history of Governmentsection905, subdivision (m) and an unsuccessful predecessorbill, the Legislature never intendedfor section 340.1 to alter the accrual date of childhood sexual abuse causes of action or the Act’s claim presentation requirements and deadlines for childhood sexual abuse causesof action based on conduct predating January 1, 2009. The Court of Appeal in Rubenstein v. Doe No. 1 (2016) 245 Cal.App.4th 1037 (Rubenstein), failed to apply or even consider 3 this precedent andclearly undid the Legislature’s weighing of the competing policy interests behind the Act and section 340.1. Rubenstein held that section 340.1 applies to childhood sexual abuse causesof action against a government entity—even those based on pre-January 1, 2009 conduct—andalters or extends the accrual date for these causes of action for purposesof the Act's claim presentation deadline. U/d. at pp. 1045, 1047-1048.) Not only is Rubenstein's holding unprecedented,it is diametrically at odds with clear and settled law to the contrary. Shirk and V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499 (V.C) — decisions the Court of Appeal neither discussed norcited — both hold that: (1) section 340.1 does not govern the accrual date for childhood sexual abuse causes of action for purposesof the Act's six-month claim presentation deadline; and (2) timely compliance with the Act's six-month claim presentation deadline requires presentation of a claim within six months of the abuse notwithstanding section 340.1.? 2The Court of Appeal's failure to acknowledge the existence of V.C. and Shirk is troubling. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (intermediate court must follow decisions of higher court); In re Hansen (2014) 227 Cal.App.4th 906, 918 (intermediate court should follow decisions of other intermediate court absent a good reason).) The Court of 4 (Shirk, supra, 42 Cal. 4th at pp. 210-214 (notwithstanding section 340.1, childhood sexual abuse cause of action accruesfor purposesof the Act’s six-month claim presentation deadline when the abuse occurs; Legislature never intended section 340.1 to override the Act’s claim filing deadlines or to revive causes of action against government entities previously barredfor failing to comply with the Act’s six-month claim presentation deadline); V.C., supra, 139 Cal.App.4th at pp. 508-512 (section 340.1 extends the time for one to commencea lawsuit for childhood sexual abuse but does not alter the accrual date, which is when the abuse occurred; Legislature never intendedfor section 340.1 to trump the Act’s six-month claim presentation deadline)3; see also County ofLos Angeles, supra, 127 Cal.App.4th at pp. 1268- 1269 ("In 1998, the Legislature amendedsection 340.1 to permit victimsof childhood sexual abuse to sue personsor entities other Appeal surely should have explained why it was not bound by Shirk and what good reason existed not to follow V.C. ? Review was granted in Shirk to resolve a conflict between the lower court's opinion (the same Court of Appeal involved here) and County ofLos Angeles v. Superior Court (2005) 127 Cal.App.4th 1263 (County ofLos Angeles). (Shirk, supra, 42 Cal.4th at pp. 206-207.) Since Shirkdid not mention V.C., Doe notes that a review of this Court’s dockets reveals that briefing in Shirk was complete before V.C. was decided. 5 than the actual abuser. [Citation.] ... [Citations.] To the extent that section 340.1 now authorizes suits against a person or entity other than the actual perpetrator, nothing in that statute or the legislative history of the 1998 amendmentto that statute reflects an intent on the part of the Legislature to excuse victims of childhood sexual abuse from complying with the Act when the defendantis a public entity or public employee".)4 Additionally, Rubenstein ignored the importance of legislative action subsequent to Shirk and V.C. Recognizing that Shirk held that the Act mandated the presentation of a claim within six monthsofthe last act of abuse regardless of repressed memories or delayed discovery, the Legislature addressed Shirk's impact by amending Government Code section 905 to add subdivision (m). Effective January 1, 2009, Government Code section 905, subdivision (m) exempts from the Act’s claim presentation requirements "[cllaims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages ‘In County ofLos Angeles, the Court of Appeal held that the Government Code section 945.6's six-month statute of limitations for filing suit after a government entity rejects a claim, and not section 340.1's extended limitation periods, governs the timeliness of an action for childhood sexual abuse. (County of Los Angeles, supra, 127 Cal.App.4th at pp. 1266, 1268-1270.) 6 suffered as a result of childhood sexual abuse." (Government Code § 905, subd. (m).) Critical to the issues presentedin this case, the Legislature expressly limited the claim exemption "only to those claimsarising outof conduct occurring on or after January 1, 2009." ([bid.) The Legislature initially proposed a bill that would completely undo Shirk (and V.C.) by exempting from the Act’s claim presentation requirement and its six-month deadlineall childhood sexual abuse causes of action no matter when the abuse occurred. (See Senate Bill No. 1339 (2007-2008 Reg. Sess.).) But the bill that eventually passed and established Government Code section 905, subdivision (m) drew a bright line - for fiscal policy reasons - exempting from the Act’s claim presentation requirement and six-month deadline only those childhood sexual abuse causesof action based on conduct occurring after January 1, 2009. (Senate Bill No. 640 (2007-2008 Reg. Sess.), as amended July 14, 2008.) By choosing not to exemptall childhood sexual abuse causesof action from the Act’s claim presentation requirement and its six-month deadline, the Legislature approved, accepted and reaffirmed the holdings in Shirk and V.C. and confirmed that the Act requires a claim for 7 S e e o y e childhood sexual abuse based on pre-January 1, 2009 conduct to be presented within six months of the last abuse. The impact of Rubenstein cannot be underestimated. Under Rubenstein, section 340.1 indefinitely extends the Act’s six-month claim presentation deadline for childhood sexual abuse causesof action against governmententity defendants because section 340.1, subdivision (b)(2) has no outside age limitation. Under Rubenstein, a 65 year-old timely complies with the Act’s six-month claim presentation deadline for abuse occurring 50 years earlier if the claim is presented to the governmententity within six-months of discovering the abuse. Such a result drastically circumvents the public policy reasons behind the Act’s claim presentation requirement and deadlines and the need to treat government entities different than private entities. (See City ofStockton, supra, 42 Cal.4th at p. 738 (discussingpolicy for requiring claim); Shirk, supra, 42 Cal.4th at p. 213 (same).) Doe No. 1 (Doe) recognizes requiring presentation of a claim within six monthsof the last abuse and requiring an application for leave to presenta late claim within a yearof the abusefor pre-January 1, 2009 conduct will leave some victims of childhood sexual abuse without a remedy. But the Legislatureis 8 in the best position to balance the interests of government entities, the public in general, and victimsof childhood sexual abuse. Indeed, "[t]he Legislature is charged with balancing the interests of persons andthird party defendants." (Quarry v. Doe T(2012) 53 Cal.4th 945, 983 (Quarry.) Any further alteration to this balance must come from the Legislature. (See Estate of Horman (1971) 5 Cal.3d 62, 77 ("Court's do not sit as super- legislatures to determine the wisdom,desirability or propriety of statutes enacted by the Legislature."); Vergara v. State (2016) 246 Cal.App.4th 614, 644 ("Policy judgments underlying a statute are left to the Legislature; the judiciary does not pass on the wisdom oflegislation.").) III. Factual And Procedural Statement A. Doe returned as untimely Rubenstein’s2012 claim for childhood sexual abuse and denied Rubenstein’s application for permission to present a late claim In June 2012, Rubenstein, 34 years old at the time, presented a claim to Doe alleging sexual abuse in 1993 and 1994 (when she was 15 or 16) by a volunteer track coach. (Clerk’s Transcript, Volume 1, pages 136-137 (1 CT 136-137).) Rubenstein alleged in her 2012claim that she discovered repressed memoriesof the 1993 and 1994 sexual abuse within the prior six months. (1 CT 136.) In August 2012, Doe returned Rubenstein’s claim as untimely. (1 CT 140.) In September 2012, Rubenstein sought permission from Doeto present a late claim. (1 CT 142.) Rubenstein asserted that section 340.1, subdivision (a) rendered her claim timely becauseshe presented her claim within six monthsof discovering the previously repressed memories of the 1993 and 1994 abuse. (1 CT 142.) Doe denied Rubenstein’s application. (1 CT 145.) B. ‘Thetrial court granted Rubenstein relief from the Act’s claim presentation requirements In March 2014, Rubenstein petitioned the trial court for relief from the Act’s claim presentation requirements.® (1 CT 080-096.) Rubenstein declared she was sexually and psychologically abused byher track coach in 1993 and 1994 when she was a minor, and that the abuse included sexual intercourse. (1 CT 090.) She further declared counseling she received in 5 This actually was Rubenstein’s second petition forrelief. Rubenstein previously filed one in December 4, 2012, along with a complaint against Doe and others (1 CT 001-019.) But Rubenstein dismissed her complaint without prejudice on March 14, 2013 before herpetition for relief was heard. (1 CT 025-032, 044-051, 066.) 10 February 2012 caused her memories of the abuse to resurface. (1 CT 090.) Rubenstein argued section 340.1, subdivision (a) rendered her June 2012 claim to Doe timely because it was presented within six months of the February 2012 resurfacing of the repressed memories. (1 CT 087-088.) Opposing Rubenstein’s petition, Doe argued that Rubenstein’s claim accrued for purposesof the Act's six-month claim presentation deadline whenshe waslast abused in 1994, and section 340.1, subdivision (a) did not extend the Act's six- month claim presentation deadline or the Act's one-yearlate claim application deadline. (1 CT 099-105.) Doe further argued the trial court lacked jurisdiction to grant Rubensteinrelief because more than a year passed since the 1994 accrual of Rubenstein’s cause of action. (CT 099-105.) In August 2013, the trial court granted Rubenstein’s petition. (1 CT 161-163.) Thetrial court found Rubenstein’s June 2012 claim timely presented because her cause of action accrued under section 340.1, subdivision (a) when her memories of the 1993 and 1994 abuse resurfaced in February 2012. (1 CT 161-163.) 11 C. Rubenstein’s first amended complaint In May 2014, Rubenstein filed her first amended complaint alleging three negligence causes of action against Doe andothers. (2 CT 361-368.) Rubenstein alleged her volunteer high school track coach sexually abused her in 1993 and 1994 and she repressed the memories of the abuse until early 2012. (2 CT 361, 363.) Rubenstein alleged Doe knew or should have knownthe volunteer coach would have abused minors and knew or should have known he was abusing Rubenstein, yet did nothing to prevent the abuse from occurring. (2 CT 364, 365, 366.) D. ‘Trial court sustained Doe’s demurrer without leave to amend because Rubenstein did not and could not timely comply with section 340.1's certificate of merit requirements In August 2014, the trial court sustained without leave to amend Doe’s demurrer concluding that Rubenstein failed to comply with section 340.1's certificate of merit requirements and could not timely correct this defect.6 (2 CT 531-535.). ‘A plaintiff over 26, like Rubenstein, "shallfile certificates of merit as specified in subdivision (h)." (Code of Civil Procedure § 340.1, subd.(g).) "[Tlhe purposeofthe certificates of merit requirementis to impose‘pleading hurdles aimedat reducing frivolous claims.' (Sen. Com. on Judiciary, 3d reading analysis of Sen. Bill No. 108 (1989-1990 Reg. Sess.) as amended Aug. 15, 1990, p. 5.)" (Jackson v. Doe (2011) 192 Cal.App.4th 742, 752; McVeigh v. Doe 1 (2006) 138 Cal.App.4th 898, 903-904 12 E. Court ofAppeal held that section 340.1 governs the | accrual date of Rubenstein’s childhood sexual abuse cause of action against Doe for purposes of the Act’s six-month claim presentation deadline and determined that Rubenstein timely complied by presenting her claim within six monthsof discovering repressed memoriesofthe abuse Rubenstein argued on appeal that the trial court improperly sustained Doe's demurrer without leave to amend because she complied or could still timely comply with section 340.1's certificate of merit requirements. Doe disagreed but argued, alternatively, that a judgment of dismissal was proper despite anytrial court error because the trial court lacked jurisdiction to grant Rubenstein’s petition for relief from the Act’s claim presentation requirements. Thus, any trial court error in sustaining the demurrer without leave to amend on the certificate of merit issue was not prejudicial. Rejecting Doe’s argument "that the trial court lacked jurisdiction to grant a Government Codesection 946.6 petition" the Court of Appealheld "that the statutory delayed discovery rule of [] section 340.1 applie[s] to delay the accrual date of plaintiff's action for childhood sexual abuse. (Code Civ. Proc., (certificates of merit requirement serves "to prevent frivolous and unsubstantial claims").) 13 section 340.1, subd. (a))." (Rubenstein, supra, 245 Cal.App.4th at p. 1043.) According to the Court of Appeal: The accrualdate for claim filing purposes is the same as the accrual date for a correspondingcivil cause of action. (Gov. Code, § 901.) Code of Civil Procedure section 340.1 sets forth the limitationsperiod for filing an action for childhood sexual abuse. (Quarry v. Doe (2012) 53 Cal.4th 945, 952 (Quarry).) Thus, section 340.1 governs the accrual date for claim filing purposes. (Id. at p. 1045.)7 Relying on the "statutory delayed discovery rule in section 340.1" and its provisions rendering an action timely commenced against an entity like Doe within three years of discovering that psychological injuries were caused by childhood sexual abuse, the Court of Appeal found the claim Rubenstein presented to Doe in June 2012 wastimely because she presented it within six months of her February 2012 discovery of her repressed memories of the 1993 and 1994 sexual abuse. Ud. at 1047-1048.) Rejecting Doe's argumentthat the enactmentof Government Code section 905, subdivision (m) supported the conclusion that section 340.1 does not alter or delay the Act's six- 7The Court of Appeal also held the trial court erred on the section 340.1 certificate of merit issue. (Rubenstein, supra, 245 Cal.App.4th at pp. 1049-1057.) Doe did not seek review on this issue and does notdiscussit. 14 month claim presentation deadline for claims based on pre- January 1, 2009 conduct, the Court of Appeal said: Although not relevant here, it is important to note that in 2008 the Legislature added subdivision (m) to Government Codesection 905, to provide an exception to the claim presentation requirementfor childhood sexual abuse claims arising out of conduct occurring on or after January1, 2009. Because the conduct in this case occurred in 1994, this amendment does not apply. Nonetheless, we agree with an observation made by the KJ. court that the amendment appears ‘declaratory of existing law to the extent that it applies the delayed discovery doctrineto the accrual of a cause of action brought by an adult plaintiff against a public entity for childhood sexual abuse.’ (KS, supra, 172 Cal.App.4th at p. 1234,fn. 2.)[§] (Rubenstein, supra, 245 Cal.App.4th at p. 1046.)9 ‘ KJ. v. Arcadia Unified Sch. Dist. (2009) 172 Cal. App. 4th 1229. °In her answer to Doe's petition for review, Rubenstein argued the Court of Appeal correctly determined her claim was timely under common law delayed discovery. As Doe explainedin its reply, and asis evident from the decision, the Court of Appeal relied solely on section 340.1's delayed discovery provisions and not on commonlaw delayed discovery. Indeed, the Courtof Appealnoted that this Court in "Quarry eliminated the common law delayed discovery doctrine for childhood sexual abuse claims." (Rubenstein, supra, 245 Cal.App.4th at p. 1047; see Quarry, supra, 53 Cal.4th at pp. 983-984 (discussing that the Legislature's 1994 elimination of reference to common law delayed discovery in section 340.1 reflected an intention "that commonlaw delayed discovery principals should [not] apply to cases governed by section 340.1").) Doe anticipates Rubenstein will argue in her merits brief that common law delayed discovery rendersher claim timely. Because the Court of Appeal did not rely on commonlaw delayed discovery, and Rubenstein did not present that issue in her answeras an additional issuefor 15 Doe sought rehearing, pointing out to the Court of Appeal that its conclusion that "section 340.1 governs the accrual date for claim filing purposes" was unsupported by any precedent and, in fact, conflicted with V.C. and Shirk, neither of which were discussed nor even cited. Doe also explained that Government Code section 905; subdivision (m) was not declarative of existing law but was rather enacted to address Shirk. The Court of Appeal denied rehearing. This Court granted review. IV. Section 340.1's Delayed Discovery Provisions Do Not Govern The Accrual Date Of Childhood Sexual Abuse Causes Of Action For Purposes Of The Act’s Six-Month Claim Presentation Deadline Precedent and subsequentlegislative action amending Government Code section 905 in response to Shirk establish that section 340.1's delayed discovery provisions do not govern the accrual date of Rubenstein’s childhood sexual abuse causeof action for purposes of the Act’s six-month claim presentation deadline. Thus, notwithstandingsection 340.1 and Rubenstein’s allegation that she presented her June 2012 claim within six monthsof discovering her repressed memoriesof the 1993 and review, issues regarding common law delayed discovery, to the extent they even exist, are not presently before this Court. 16 1994 abuse, Rubenstein’s failure to present her claim and seek permission to present a late claim within, respectively, six monthsand one-year from the last abuse in 1994 bars her action against Doe. An overview of the relevant statutory schemesis helpful in demonstrating this point. A. The Act's claim presentation requirement and deadlines are policy-based and strictly construed Governmententity liability is governed by the Act. (DiCampli-Mintz v. County ofSanta Clara (2012) 55 Cal.4th 983, 989 (DiCampli-Mintz).) The Act’s intentis "not to expand the rights of plaintiffs against governmententities. Rather, the intent of the [A]ct is to confine potential governmentalliability to rigidly delineated circumstances." (/d. at p. 991 Gnternal quote and cites omitted); accord Metcalf v. County ofSan Joaquin (2008) 42 Cal. 4th 1121, 1129.) The Act contains a pre-lawsuit claim presentation requirement. Unlessspecifically exempted, "[blefore suing a public entity, the plaintiff must present a timely written claim for 17 damagesto the entity."!° (Shirk, supra, 42 Cal.4th at p. 208.) "Since 1988, such claims must be presented to the government entity no later than six monthsafter the cause of action accrues." (Ibid.) The six-monthperiod is not tolled for minority. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 444 fn.3 (John R.); V.C.,, supra, 189 Cal.App.4th at p. 508; Codeof Civil Procedure § 352, subd.(b).)!! After six months, a claimant may seek permission from the government entity to present a late claim but must do so within a year of the cause of action’s accrual. (Government Code §§ 911.4, 946.6; County ofLos 1 As already noted, Government Code section 905, subdivision (m) excludes from the Act's claim presentation requirementchildhood sexual abuse causesof action brought undersection 340.1 for post-January 1, 2009 conduct. (Government Codesection 905, subd. (m).) Because the conduct at issue here occurred prior to January 1, 2009, Rubenstein remained subject to the Act’s claim presentation requirement andits six-month claim presentation deadline. 1 Code of Civil Procedure section 352, subdivision (a) provides that the time under which a plaintiff is a minor or incapacitated is excluded from calculating the limitation period in which a plaintiff must commence an action. But subdivision (b) of section 352 providesthat thetolling provisions of subdivision (a) do not apply to causes of action against government entities where the Act requires presentation of a claim. (Code of Civil Procedure § 352, subd. (b); see also Code of Civil Procedure § 352.1, subds. (a),(b) (tolling of the limitations period during the timea plaintiff is incarcerated does not apply to causes of action against government entities).) 18 Angeles, supra, 127 Cal.App.4th at p. 1272.) The one-year period is not tolled for minority. (Government Code § 911.4, subd. (c)(1).) If the governmententity rejects an application to present a late claim, the claimant can petition the courtfor relief from the Act’s claim presentation requirement and deadline. (Government Code § 946.6.) However,a court lacks jurisdiction to grant the petition if the application to present a late claim was made more than a year after the cause of action accrued. (County ofLos Angeles, supra, 127 Cal.App.4th at p. 1272; Brandon G.v. Gray (2003) 111 Cal.App.4th 29, 34.) "Accrualof the cause of action for purposesof the [Act] is the date of accrual that would pertain under the statute of limitations applicable to a dispute betweenprivate litigants." (Shirk, supra, 42 Cal. 4th at pp. 208-209; Government Code § 901.) "Generally, a cause of action for childhood sexual molestation accrues at the time of molestation. [Citations]." (Shirk, supra, 42 Cal. 4th at p. 210; see John R., supra, 48 Cal.3d at p. 443; Doe v. Roman Catholic Archbishop ofLos Angeles (2016) 247 Cal. App. 4th 953, 961.) "As explained in John R., the timeof accrual is particularly significant in the context of the claims statutes. (John R., supra, 48 Cal.3d at p. 444.) This is 19 because contrary to the general rule that the time during which the individual who sustained injury is a minor 'is not part of the time limited for the commencementof the action' (Code Civ. Proc., § 352, subd. (a)), the time of minority is counted in determining whether a claim was timely presented following accrual of a minor's cause of action against a public entity. (Code Civ. Proc., § 352, subd. (b); Gov. Code, § 911.4, subd. (c)(1); John R., supra, at p. 444, fn. 3; [citation]." (V.C., supra, 139 Cal. App. Ath at p. 508.) The Act's claim presentation requirement anddeadlines are strictly construed. (See Shirk, supra, 42 Cal.4th at p. 209.) "Timely claim presentation is not merely a procedural requirement" but rather "a condition precedentto plaintiff's maintaining an action against [the public entity] defendant." (bid. (internal quotes and cites omitted); see id. at p. 218 ("the government claim presentation deadline is not a statute of limitations").) The "failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity." (DiCampli-Mintz, supra, 55 Cal. 4th at p. 990 (internal quotes and cites omitted).) 20 The Act’s claim presentation requirementandstrict deadlines are groundedin public policy. As this Court has recognized, "[rlequiring a person allegedly harmed by a public entity to first present a claim to the entity, before seeking redress in court, affords the entity an opportunity to promptly remedy the condition givingrise to the injury, thus minimizingthe risk of similar harm to others", (Shirk, supra, 42 Cal. 4th at p. 213), and "enablels] . . . fiscal planning for potential liabilities." (City of Stockton, supra, 42 Cal.4th at p. 738; see also Recommendation: Claims, Actions and Judgments Against Public Entities and Public Employees (Dec. 1963) 4 Cal. Law Revision Com.Rep. (Jan. 1963) pp. 1008-1009 ("[plrompt notice" ensures "prompt investigation and opportunity to repair or correct the condition which gaverise to the claim").) Significantly, "[t]he requisite timely claim presentation before commencing a lawsuit also permits the public entity to investigate while tangible evidenceis still available, memories are fresh, and witnesses can be located. [Citations.] Fresh notice ofa claim permits early assessmentby the public entity, allows its governing board to settle meritorious disputes without incurring the addedcostoflitigation, and gives it time to engage 21 in appropriate budgetaryplanning." (Shirk, supra, 42 Cal.4th at p. 213 (emphasis added).) "The notice requirement under the government claims statute thus is based on a recognition of the special status ofpublic entities, according them greater protections than nonpublic entity defendants, because unlike nonpublic defendants, public entities whose acts or omissions are alleged to have caused harm will incur costs that must ultimately be borne by the taxpayers." (Ibid. (emphasis added).) B. Section 340.1 andits limitation period for childhood sexual abuse causesof action is at odds with the Act’s Purpose Prior to 1986, the limitation period for an action asserting injuries from sexual abuse was one year. (Shirk, supra, 42 Cal.4th at p. 207.) Section 340.1 was enacted in 1986, and extendedto three years the limitation period for a sexual abuse cause of action against a relative or household memberto a child under 14. (Ibid.) In 1990, the Legislature amended section 340.1 making it applicable to any abuser and also extended the limitation period to eight years from the age of majority (age 26) or three years from the date one discovers or should have discovered that psychological injury or illness occurring after age 18 was caused by the sexual abuse. (/bid.) In 1994, section 340.1 22 was again amendedto revive causesof action that had lapsed prior to January 1, 1991. Ubid.) In 1998, the Legislature for the first time authorized actions undersection 340.1 against third party defendants (non- perpetrators) requiring these actions be brought before age 26 regardless of whether the claims had been discovered. (Quarry, supra, 53 Cal.4th at pp. 965-966; Shirk, supra, 42 Cal.4th at p. 208.) By imposing an absolute age limit of 26, the Legislature struck a balance betweenthe interests of victims and the purpose behind statutes of limitations. (Quarry, supra, 53 Cal.4th at pp. 966-967; see also Travis v. County ofSanta Cruz (2004) 33 Cal.4th 757, 777 (statutes of limitations reflect importantpolicies against the prosecution of stale claims where documents have been lost or destroyed, memories have faded and witness have died).) These third party defendants were: (1) a person or entity owing a dutyof care to the plaintiff and whose wrongful or negligent act caused the childhood sexual abuse; and (2) a person or entity whose intentional act caused the childhood sexual abuse. (Quarry, supra, 53 Cal.4th at p. 965.) In 1999, the Legislature amendedsection 340.1 to clarify that the 1998 23 amendments wereprospective only. (/d. at p. 966; Shirk, supra, 42 Cal.4th at p. 208.) In 2002, the Legislature again amendedsection 340.1. In doing so, the Legislature created a new "subcategory"of third party defendants that, going forward, would not receive the benefit of the absolute age 26 cut-off date. (Quarry, supra, 53 Cal.4th at pp. 968-969.) This new subcategoryof third party defendants were those that knew or should have knownof sexual abuse by an employee or agent and failed to take reasonable measures to prevent the sexual abuse. (Jbid.) The 2002 amendmenteliminated the absolute age 26 cut off for these new defendants, allowing an action to be broughtby anyplaintiff regardless of age provided it was commenced within three years of discovery. Ud. at pp. 969-970.) At no timesince section 340.1's enactment in 1986 has the statute ever specifically referred to a government entity or referenced its impact on the Act’s claim presentation requirement and deadlines. (See Quarry, supra, 52 Cal.4th at pp. 960-972; Shirk, supra, 42 Cal.4th at pp. 207-208.) 24 C. Section 340.1 does not govern or impact when childhood sexual abuse causesof action accrue for purposesof timely compliance with the Act’s claim presentation deadlines 1. Section 340.1 does not control when childhood sexual abuse causes of action accrue becauseit is a statute of limitations A statute of limitations governs the time in which one has to commence a lawsuit after the cause of action accrues. (Shirk, supra, 42 Cal.4th at pp. 211-212; V.C., supra, 139 Cal.App.4th at pp. 509-510; see Code of Civil Procedure § 350 ("An action commencesuponthefiling of a Complaint.").) A cause of action accrues whenall its elements are complete. (V.C., supra, 139 Cal.App.4th at p. 510; see Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 ("cause of action accrues 'when [it] is complete with all of its elements'—those elements being wrongdoing, harm, and causation").) Section 340.1 is a statute of limitations. (Shirk, supra, 42 Cal.4th at p. 207 ("Section 340.1 [] sets forth deadlines for bring a lawsuit for childhood sexual abuse"); County ofLos Angeles, supra, 127 Cal. App. 4th at p. 1268 ("Section 340.1 sets forth a special statute of limitations for victims of childhood sexual abuse."); Boy Scouts ofAm. Nat'l Found. v. Superior Court (2012) 206 Cal. App. 4th 428, 433 ("Section 340.1 provides the 25 limitations periodsfor civil actions arising from childhood sexual abuse.").) Section 340.1 thus governs the timefor one to commence an action for childhood sexual abuse after it accrues. (See Section 340.1, subd.(a) ("In an action for recovery of damagessuffered as a result of childhood sexual abuse, the time for commencementofthe action .. . ."(emphasis added)); Quarry, supra, 53 Cal.4th at p. 952 ("Section 340.1 governs the period within which a plaintiff must bring lor commence] a tort claim based upon childhood sexual abuse.").) Thus, section 340.1 in no way changestherule that childhood sexual abuse causesof action accrue at the time of the abuse. (Shirk, supra, 42 Cal.4th at p. 201; John R., supra, 48 Cal.3d at p. 443; Doe, supra, 247 Cal.App.4th at p. 961.) As aptly observed in V.C., "while section 340.1 extends the time during which an individual may commencea cause ofaction alleging childhood sexual abuse, it does not extend the timefor accrual of that cause ofaction. Rather, as cases decided both before and after the enactmentof section 340.1 have confirmed,'/a/ civil cause ofaction for child molestation generally accrues at the time ofthe molestation.' [Citations]." (V.C., supra, 139 Cal.App.4th at p. 510 (emphasis added); see Doe v. City ofLos Angeles (2007) 42 26 Cal.4th 531, 536 ("[Slection 340.1 [ ] extends the statute of limitations..."); see also Shirk, supra, 42 Cal.4th at pp. 210-212.) Stated another way, section 340.1 delays, suspendsortolls the runningof the limitation period (or deadline) for commencing a childhood sexual abuse cause of action but does not alter the cause of action’s accrual date. Under Section 340.1, the cause of | action accrues whenthelast abuse occurs, (Shirk, supra, 42 Cal.4th at p. 201), but theplaintiff's deadline (or limitation period) for commencinga civil action is suspendedortolled while the plaintiff is between 18 and 26 yearsold or delayedor tolled until plaintiff discovers the injury the abuse caused, and in that case, begins to run for another three years.!? 2 By giving a plaintiff eight years from majority to commence an action for childhood sexual abuse, section 340.1 works just like Codeof Civil Procedure section 352, subdivision (a). Code of Civil Procedure section 352, subdivision (a) suspendsa plaintiff's limitations period for causes of action against non-public entity defendants from the time of accrual until the time plaintiff reaches age 18. (Code of Civil Procedure § 352, subd.(a); Alcott Rehab. Hosp. v. Superior Court (2001) 93 Cal.App.4th 94, 101; see Code of Civil Procedure § 352, subd. (b) (tolling provision does not apply to causes of action against public entities and employees where the Act requires presentation of a claim).) Section 340.1 thus picks up where Code of Civil Procedure § 352, subdivision (a) leaves off, further suspending the limitations period for childhood sexual abuse causesof action after age 18. 27 2. V.C. and Shirk establish that the Legislature never intendedfor section 340.1 to impact when childhood sexual abuse causes of action accrue for purposesof the Act’s claim presentation deadlines a. V.C. In V.C,the plaintiff was molested by a teacher between 2001 and 2003 when she wasbetween the ages of 11 and 13. (V.C,, supra, 139 Cal.App.4th at p. 504.) The perpetrator was arrested on August 15, 2003. (/bid.) The plaintiff presented her claim to the school district on September 17, 2004, which was rejected as untimely. (Jd. at p. 505.) On October 4, 2004, the plaintiff submitted an application to present a late claim, which was denied as untimely. (/bid.) In December 2004, the plaintiff filed a complaint and a petition for relief from the Act’s claim presentation requirementand deadlines. Thetrial court denied the petition and sustained without leave to amend the defendant’s demurrerto the plaintiff's complaint, concluding she failed to timely present the claim to the district. Ibid.) As she did in the trial court, on appeal, the plaintiff argued that section 340.1 solely governed the limitations period for filing her complaint and that she was entitled to rely on that provision without regard to the Act’s claimsfiling requirement. (V.C, 28 supra, 139 Cal.App.4th at p. 506.) Theplaintiff asserted that her claim wastimely undersection 340.1 because "her cause of action had not yet accrued, and would accrue, at the earliest, when she reached the age of majority." (d. at p. 509.) The Court of Appeal disagreed. The Court of Appealfirst observed that the plaintiff was "confoundl|ingl] the principals of limitation periods with accrual dates" when arguing section 340.1 controls the accrual date of her childhood sexual abuse cause of action. (V.C., supra, 139 Cal.App.4th at p. 509.) This is because section 340.1 does not establish an accrual date, but only a limitation period to bring a lawsuit after accrual. (Jd. at pp. 509-510.) Turning to the specific facts before it, the Court of Appeal found that the plaintiffs cause of action accrued at the latest on August 15, 2003 — the date the perpetrator was arrested — and that her September 2004 presentation of her claim and her October 2004 application to present a late claim were well beyond the Act’s six-month and one-year deadlines notwithstanding - section 340.1. (V.C,, supra, 139 Cal.App.4th at p. 510.) The Court of Appeal was "not persuadedby [the plaintiffs] argument that the Legislature's expansion of section 340.1 over 29 time, coupled with the statute's current application to 'any person or entity who oweda dutyofcare to the plaintiff,’ demands that [it] construe [section 340.1] to apply to the District notwithstanding the requirementsof the Tort Claims Act. [Citation]." (V.C., supra, 139 Cal.App.4th at 510.) "[P]resumling] that the Legislature was aware of both Government Code claims provisions and judicial decisions concerning the accrual date for civil actions involving the sexual abuse of a minorat the timeit amendedsection 340.1 to apply to any entity owing a duty of care", the Court of Appeal rightly concluded that section 340.1 and its delayed discovery provisions do not trumpthe Act’s claim presentation requirement and six-month and one-year deadlines (measured from the date of the last abuse) because there was no express indication in section 340.1 of that intent. Ud. at p. 511.) As the Court of Appeal aptly stated "if the Legislature had intendedfor section 340.1 either to override the claims requirementor to alter the accrual date for actions by minors alleging sexual abuse, it would have said so. [Citation]." (Jbid.) In sum, the Court of Appeal concluded, correctly, that "nothing in the languageor legislative history of section 340.1 that establishes the Legislature intended to modify either the 30 date of accrual or the claim requirements of Government Code sections 911.2 and 911.4 when thereis an allegation of sexual abuse against a public entity." (V.C., supra, 139 Cal.App.4th at 514) b. Shirk In Shirk, the 41 yearold plaintiff was last molested by a teacher in 1979 whenshe was17, and she never presented a claim to the school district. (Shirk, supra, 42 Cal.4th at p. 205.) In September 2003,the plaintiff learned the abuse caused her psychological problems, and she presented a claim to the school district the same day of her "discovery". (bid.) Theplaintiff filed suit about 10 days after presenting her claim. (Jd. at pp. 205- 206.) Concluding theplaintiffs cause of action accrued in 1979 andthat she failed to timely present a claim to the school district, the trial court sustained without leave to amendthe school district’s demurrerto the plaintiff's complaint. (Shirk, supra, 42 Cal.4th at p. 206.) On appeal, the plaintiff argued her September 2003 claim was timely undersection 340.1 because her cause of action accrued in September 2003 whenshefirst discovered the childhood sexual abuse was the causeof her adult psychological 31 injuries. (Jbid.) The Court of Appeal agreed, concluding section 340.1’s delayed discovery provisions overrule the Act's claim presentation deadlines, reasoning that the Legislature’s "failure . to make special rules regarding application of [the Act’s] claims requirements' indicated legislative intent not to differentiate between public entity defendants and private entity defendants." (Ibid.) This Court soundly rejected the Court of Appeal’s conclusion and reasoning. First, this Court confirmed the general rule that a cause of action for childhood sexual abuse accrues whenthe abuse occurs and noted that the plaintiff did not present a claim to the school district within 100 daysof the last abuse in 1979 (the deadline applicable at the time). (Shirk, supra, 42 Cal.4th at 210.) This Court also concluded,like V.C. did, that section 340.1 governs the commencementof actions rather than accrual. (/d. at pp. 211-212.) Accordingly, this Court rejected the Court of Appeal's conclusion that the plaintiffs duty to present a claim underthe Act did not arise until discovering in September 2003 that the 1979 abuse caused her adulthood psychological problems. (/d. at pp. 210-211.) Notwithstanding section 340.1's delayed discovery provisions, this Court concluded 32 that the plaintiffs childhood sexual abuse cause of action accrued in 1979 when the abuse last occurred even though the plaintiff did not discover until 2003 that this abuse caused her adulthood psychological problems. (Jd. at pp. 210-212.) This Court likewise rejected the Court of Appeal's conclusion that the plaintiffs childhood sexual abuse causeof action accrued twice—once in 1979, and again in 2003 when she discovered the abuse caused her adulthood injuries. (/d. at pp. 210-213;see id. at p. 214 (dis. opn. of Werdegar, J., (acknowledgingplaintiffs cause of action for childhood sexual abuse accrued in 1979 whenplaintiff was last molested but arguing it accrued a second time upon her 2003 discovery of adult psychological problems).) - Significantly, this Court held that the legislative silence on section 340.1's impact on the Act’s claim presentation deadlines evidenced not an intent to treat governmentand private entities the same, as the Court of Appeal concluded, but rather an intent to treat them differently. (Shirk, 42 Cal.4th at pp. 211-214.) Stated simply, this Court concluded that the Legislature never intended for 340.1 to delay or extend the Act’s six-month claim presentation deadline for childhood sexual abuse causesof action or have any other impact on whena childhood sexual abuse cause 33 of action accrues for purposesof the Act’s six-month claim presentation deadline. (Jbid.) 3. The reasoning of County ofLos Angeles supports the conclusion that section 340.1 does not govern when childhood sexual abuse causesof action accrue for purposesof the Act’s six-month claim presentation deadline or one-year late claim application deadline The Court of Appeal in County ofLos Angeles held that Government Codesection 945.6's six-month limitations period and notsection 340.1's extended limitations period governs when a plaintiff must commence an action against a governmententity for childhood sexual abuse. (County ofLos Angeles, supra, 127 Cal.App.4th at pp. 1266, 1268-1270.) Although the issue County ofLos Angeles resolvedis slightly different than the one presentedhere, its reasoningis persuasive and consistent with that used in Shirk and V.C. (See Shirk, supra, 42 Cal.4th at pp. 206-207 (agreeing with County of Los Angeles, held that the Legislature’s 2002 amendmentof section 340.1 "did not reflect the Legislature’s intent to ‘excuse victims of childhood sexual abuse' from complying with the [Act] when suing a public entity defendant."); see also V.C., supra, 139 Cal.App.4th at p. 510 (finding County ofLos Angeles persuasive, held that section 340.1 does not trump the Act’s six-month 34 deadline for presenting a claim and one-year deadline for seeking permission to presenta late claim.) In County ofLos Angeles, the plaintiff was sexually abused while housed in a juvenile facility when she was 17, with the last abuse occurring on August 4, 2001. (County ofLos Angeles, supra, 127 Cal.App.4th at pp. 1266.) In March 2002, the County rejected plaintiffs January 2002 claim as untimely. (Ibid.) Plaintiff filed her lawsuit in December 2008, more than a year and a half after being notified of the claim rejection. Ud. at 1266- 1267.) After the trial court denied summary judgment, the County sought writ relief. The County argued that theplaintiffs action was barredby herfailure to commenceher action within six monthsof the claim rejection as Government Codesection 945.6 mandates. (Cd. at p. 1266.) The plaintiff argued section 340.1 governedthe timelinessof her action, not Government Codesection 945.6, and she timely commencedheraction under section 340.1 because she had not yet turned 26. (Ibid) The Court of Appeal disagreed, holding Government Code section 945.6's six-month limitations period applied, not section 340.1's extended limitations period. (County ofLos Angeles, supra, 127 Cal.App.4th at pp. 1266, 1268-1270.) After noting 35 that actions against governmententities are "governed by the specific statute of limitations set forth in the [Act], not the statute of limitations applicable to private defendants", the Court of Appealheld that "[slection 340.1 [dloes [nJot [t]rump the Act" and its six-month statute of limitations. (Ud. at p. 1268.) Although recognizing that section 340.1 has authorized actions against "entities" since 1998, given the absence of express legislative intent, the Court of Appeal refused to accept the proposition that this meantsection 340.1 and its extended statute of limitations takes precedence over the Act's six-month statute of limitations. As the Court of Appeal explained, "to the extent that section 340.1 now authorizes suits against a person or entity other than the actual perpetrator, nothing in that statute or the legislative history of the 1998 amendmentto that statute reflects an intent on the part of the Legislature to excuse victims of childhood sexual abuse from complying with the Act when the defendant is a public entity or public employee." (County ofLos Angeles, supra, 127 Cal.App.4th at pp. 1268-1269.) The Court of Appeal further noted that Codeof Civil Procedure section 342, enacted in 1963, specifically provides that causes of actions against governmententities must be 36 commenced within the time period proscribed by Government Code section 945.6, and that Code of Civil Procedure section 352, enacted in 1970, provides that minority does nottoll the six- month limitation period of Government Code section 945.6. (County ofLos Angeles, supra, 127 Cal.App.4th at pp. 1269, 1270.) Given "[t]he Legislature is deemed to be awareof statutes andjudicial decisions already in existence . . . [and] enactls] or amend[s] a statute in light thereof", the Court of Appeal "presumeld] that the Legislature was aware of section 342 [and section 352], as well as the six-month limitationsperiodfor filing complaints against a public entity set forth in section 945.6, and that it enacted section 340.1 in light thereof." (/d. at p. 1269 (internal quotes and cites omitted).) "When [Codeof Civil Procedure sections 340.1, 342 and 352 and Government Code section 945.6] are viewed in context andin light of one another, they evince a clear intent on the part of the Legislature that statutes of limitations applicable to suits against private defendants are inapplicable to actions against public entities and employees." (/d. at p. 1270.) This reasoning applies equally to the issue presented here. Indeed, it would be absurd to conclude, on the one hand,that 37 section 340.1 does not "trump" the Act's six-month statute of limitations for commencing an action after claim rejection but to conclude, on the other hand, that section 340.1 does "trump"the Act’s six-month claim presentation deadline and one-year late claim application deadline. (See Cent. Pathology Serv. Med. Clinic, Inc. v. Superior Court (1992) 3 Cal. 4th 181, 191 (statutes should not be interpreted in a mannerthat would lead to absurd results).) 38 4. Government Codesection 905, subdivision (m) andits legislative history confirm the Act requires presentation of a claim within six monthsof the abuse for childhood sexual abuse causesof action based on pre-January 1, 2009 conduct}8 Prior to the enactment of Government Codesection 905, subdivision (m), all claims for childhood sexual abuse against a public entity or were subject to the Act’s claim presentation 18 Doe cites in this discussion to legislative reports and analyses on Senate Bill 1339 (2007-2008 Reg. Sess.) and Senate Bill 640 (2007-2008 Reg. Sess.). In the next section, Doe cites to legislative reports and analyses on Senate Bill 131 (2013-2014 Reg. Sess.) and Senate Bill 924 (2013-2014 Reg. Sess.). These reports and analysesare indicative oflegislative intent. (Hassan v. MercyAm. River Hosp. (2003) 31 Cal.4th 709, 717; Altaville Drug Store, Inc. v. Emp't Dev. Dep’t (1988) 44 Cal.3d 231, 238; see Doe, supra, 42 Cal.4th at pp. 544-545; Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 613 fn. 7.) The reports and analyses cited are published and publically available at www.sen.ca.gov and www.leginfo.ca.gov. As such, no motion for judicial notice is required; citation to them is sufficient. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 440 fn. 18; QuelimaneCo. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46 fn. 9; Wittenburg v. Beachwalk HomeownersAssn.(2013) 217 Cal.App.4th 654, 665 fn. 4.) Doe has, however, included these legislative reports and analysis as an exhibit to its motion for judicial notice. And Doe does movefor judicial notice of a "background information request" regarding Senate Bill 1339 that does not seem to be publically available. (See Kachion v. Markowitz (2008) 168 Cal.App.4th 316, 338 fn. 12 ("Background information requests are a proper sourceof legislative intent.”).) Doe also moves for judicial notice of enrolled bill reports regarding Senate Bill 640 that Doe relies on in the next discussion section. Although some appellate courts conclude otherwise, this Court considers enrolled bill reports relevant in analyzinglegislative history. (Conservatorship of Whitely (2010) 5 Cal.4th 1206, 1218,fn. 3.) 39 requirements. (Shirk, supra, 42 Cal.4th at pp. 210-214; V.C.,, supra, 139 Cal.App.4th at pp. 510-512, 514; see also County of Los Angeles, supra, 127 Cal.App.4th at pp. 1268-1269.) After the enactment of Government Codesection 905, subdivision (m), however, onlythose causes of action based on conduct occurring before January 1, 2009 are subject to the Act’s claim presentation requirements. As the legislative history for Government Codesection 905, subdivision (m) establishes, the Legislature recognized that the Act required presentation of a claim for childhood sexual abuse within six months of the abuse. Seekingto alter the law, the Legislature amended Government Code section 905 exempting from the Act's claim presentation requirements only those causes of action based on post-January 1, 2009 conduct. Forfiscal policy reasons, causesof action for childhood sexual abuse based on pre- January 1, 2009 conductstill require a claim and remain barred if a claim was not presented to the governmententity within six monthsof the abuse, as case law prior to the enactmentof Government Codesection 905, subdivision (m) established. 40 In 2008, the Legislature proposed Senate Bill 1339. (Sen Bill No. 1339 (2007-2008 Reg. Sess.).)!4 A Senate Judiciary Committee analysis succinctly stated the need for the bill: "SB 1339 is legislative response to California Supreme Court decision in Shirk, and would treat childhood sexual abuse actions against a public entity the sameas one against a private entity." (Sen. Judiciary Com., Analysis of Sen. Bill No. 1339 (2007-2008 Reg. Sess.), as introduced, p. 3.) The analysis further noted that the author of SB 1339, Senator Simitain, said the "bill is essential to ensure that victims severely damaged by childhood sexual abuse are able to seek compensation from those responsible, whether 4"TA court] may properly rely on the legislative history of subsequent enactmentsto clarify the Legislature's intent regarding an earlier enacted statute. ‘Although a legislative expression of the intent of an earlier act is not binding upon the courts in their construction of the prior act, that expression may properly be considered together with other factors in arriving at the true legislative intent existing when the prior act was passed.' [Citations.]" (Zu v. Chacon (1976) 16 Cal.3d 465, 470.) "While the concept of 'subsequentlegislative history' may seem oxymoronic, it is well established that 'the Legislature's expressed viewson theprior importof its statutes are entitled to due consideration, and we cannot disregard them.' (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244.)" (Ailanto Properties, Inc. v. City ofHalfMoon Bay (2006) 142 Cal.App.4th 572, 589 fn.13; see Lee v. Hanley (2015) 61 Cal.4th 1225, 1235 (considering subsequentlegislative history); Mz. Hawley Ins. Co. v. Lopez (2018) 215 Cal.App.4th 1385, 1408 (same).) | 4] those responsible are private or public entities. For many victims, the emotional and psychological trauma from childhood sexual abuse does not manifest itself until well into adulthood, when some eventin their currentlife triggers remembranceof the past abuse and brings on the trauma (CCP Section 340.1's delayed discovery provisions recognize this)." Ud. at pp. 3-4.) As the Senate Judiciary Committee analysis stated, Senate Bill 1339 was necessary because "the California Supreme Court held [in Shirk], in determining the interaction between Section 340.1 and the requirement for government tort claims that a _claim be presented to the public entity within six months of when the injury occurred, that the six-month claim requirement superseded the delayed discovery provisions of Section 340.1." (Sen. Judiciary Com., Analysis of Sen. Bill No. 1339 (2007-2008 Reg.Sess.), as introduced, p. 4; see Sen. Com. on Judiciary, Background Information Request, Sen. Bill No. 1339 (2007-2008 Reg.Sess.), as introduced, p. 1 ("[T]he Tort Claims Act requires that a claim against a public entity be filed not later than 6 monthsafter the accrual of the cause of action. This 6 month limit has barred claims that would have been filed by a minor whodid not report the abuse until years later.").) 42 Thus "[SB 1339] would provide that childhood sexual abuse claims against local public entities would not be subject to the Government Tort Claims Act, which generally requires claims for damagesto be presented to the public entity within six monthsof when an injury occurred." (Sen. Judiciary Com., Analysis of Sen. Bill No. 1339 (2007-2008 Reg.Sess.), as introduced,p. 1.) Accordingly, Senate Bill 1339 would "amend [Government Codel section 905 to provide that claims againstlocal public entities for the recovery of damagessuffered as a result of childhood sexual abuse made pursuantto [Code of Civil Procedure] section 340.1 would be exempt from the Government Tort Claims Act andits six-month public entity claim presentation requirement." (Sen. Judiciary Com., Analysis of Sen. Bill No. 1339 (2007-2008 Reg. Sess.), as introduced,p.4.) A Senate Appropriations Committee report summarized Senate Bill 1339 as follows: "SB 1339 would exempt childhood sexual abuse claims against local public entities from the Government Tort Claims Act, which generally requires claims for damagesto be reported tothe local entity within six months of whenthe injury occurred." (Sen. Appropriations Com., Analysis 43 of Sen. Bill No. 1339 (2007-2008 Reg. Sess.), as amended Feb.20, 2008, p.1.) As the report explainedin detail: Current law generally allows an action for recovery of damages suffered as a result of childhood sexual abuseto be commenced within three years or on or after the plaintiff's 26th birthday, whicheveris later.... The Government Tort Claims Act, which generally regulates claims for damages brought against public entities, requires claimsrelating to injury or death be brought within six months ofthe causeofthe injury, baring certain exceptions. Last year in Shirk [], the state Supreme Court held that the delayed discoveryprovisions for recovery ofdamages in childhood sexual abuse matters did not apply to childhood sexual abuse claims againstlocal agencies andheld the Tort Claims Act’s six-month presentation requirement was the standardfor those claims. SB 1339 is intended to address Shirk by expressly providing that childhood sexual abuse actions against local public entities are exempted from Tort Claims Act’s requirements. SB 1339's lifting of the six-month presentation requirements in the Tort Claims Act would extend the time a plaintiffs claim against school districts could be brought to either a plaintiffs 26th birthday or within three years of the date a plaintiff discovered the injury or illness caused by the sexual abuse (the SB 1779 standard), whicheveris later. (Id. at pp. 1-2 (emphasis added).) Dueto its potentially dramaticfiscal impact onlocal governmententities, Senate Bill 1339 was relegated to the "suspensefile" and never passed. (Sen. Appropriations Com., 44 Analysis of Sen. Bill No. 1339 (2007-2008 Reg. Sess.), as amended Feb. 20, 2008).) However, Senate Bill 640 did pass. (Sen. Bill No. 640 (2007-2008 Res. Sess.), as amended July 14, 2008).) Senate Bill 640 was"identical to SB 1339 [], except that[it] applies prospectively only, to claims arising out of conduct occurring on or after January 1, 2009... [which] should reduce the bill's financial impact onlocal public entities." (Sen. Rules Com., Analysis of Sen. Bill No. 640 (2007-2008 Reg. Sess.), as amended July 14, 2008, p. 1; see Assem. Com. On Judiciary, Analysis of Sen. Bill No. 640 (2007-2008 Reg. Sess.), as amended June 9, 2008, p. 1.) “An Assembly Committee on Judiciary analysis of Senate Bill 640 noted the "key issue" as follows: Since victimsof child sex abuse may not recognize or report their abuse until years later, should these claims brought against local public entities, such as cities and school districts, be exempted from the requirementthat theyfirst be presented to the public entity within six monthsof occurrence? (Ass. Com. On Judiciary, Analysis of Sen. Bill No. 640 (2007-2008 Reg. Sess.), as amended June9, 2008, p. 1 (all capitals omitted).) And the "synopsis" from the same analysis stated: 45 The statute of limitations for claims of childhood sexual abuseis eight years after the abuse victim reaches the age of majority or within three years of the date the victim discovers or reasonably could have discovered that the psychological injury or illness occurring after the age of majority was caused by the abuse, whicheveroccurslater. The statute oflimitations for these claimsis so long because victims ofchild sexual abuse may not recognize or report the abuse untilyears later. The GovernmentTort Claims Act generally requires claims for damages against a public entity to be presented to that entity within six months ofwhen an injury occurred. This billprovides that childhood sexual abuse claims against localpublic entities are not subject to the Tort Claims Act. This bill is nearly identical to SB 1339 (Simitian), which was held on suspense in Senate Appropriations, except that this bill is prospective only, applying only to claims arising out of conductoccurring on or after January 1, 2009. \{] Supporters ... write that the six-month claim requirement of the Tort Claims Act unfairly penalizes child sexual abuse victims who are abused by public employees and that they should be given the samelegal protectionsasall other victims. ... (Id. at p. 1 (all italics omitted).) As an enrolled bill memorandum to the Governor explained, Senate Bill 640 "eliminates the requirementfor a plaintiffto file his/her claim within six monthsofthe injury in order to be allowed to purse the claim against a local public entity for the recovery of damages suffered as a result of childhood sexual abuse, [for] any claim arising from conduct that occurred after January 1, 2009." (Enrolled Bill Mem. to Governor on Sen. 46 Bill No. 640 (2007-2008 Reg.Sess.), Sept. 10, 2008) (emphasis added).) As explained in anotherenrolled bill report: Existing law requires that tort claims against a public entity be submitted to the public entity pursuant toa specified process before filing suit against the public entity for money or damagesand specifies certain exemptions to this requirement. Furthermore, existing law requires a claim forpersonal injury against a public entity, or against an employee ofa public entity, to be submitted no later than 6 monthsafter the date ofthe incident resulting in the allowed injury. Existing law also establishes specified time limits and guidelines for seeking recovery of damages suffered as a result of childhood sexual abuse, as defined. This bill will exempt claims made against a public entity as a result ofa childhood sexual abuse from governmenttort claims requirements, including the 6 month time limit for presentingpersonalinjury claims. Thisbill limits this exemption to claimsarising out of conduct occurring on or after January 1, 2009. (Enrolled Bill Report On Sen.Bill 640 (2007-2008) Reg. Sess), Aug. 13, 2008) (emphasis added).) An enrolled bill report prepared by the Governor’s Office Of Planning And Research contained an extensive analysis of Senate Bill 640: SUMMARY For any claim arising from conduct that occurred after January 1, 2009, this bill would eliminate the requirement for a plaintiff to file his/her claim within six months ofthe injury in order to be allowed to pursuethe claim against a localpublic entity for the recovery ofdamages suftered as a result ofchildhood sexual abuse. 47 PURPOSE OF THE BILL The authoris the sponsorofthis bill. Accordingto the author, existing law requires most claims against a public entity to be filed not later than six months after accrual of the cause of action. The author contends that this six month limitation prevents many victims from being able to file a claim against a public entity for the recovery ofdamagessuffered as a result ofchildhood sexual abuse. Therefore, the author has introduced SB 640, which would exempt from that six month limitation, any cause of action against a public entity for childhood sexual abuse.. . ANALYSIS The Government Tort Claims Act bars a plaintiff from seeking money or damages from a public entity, with | specified exceptions, unless the plaintiff has presented a written claim to the public entity ... The plaintiff must present a claim for personal injury against a public entity. .. no later than six monthsafter accrual of the cause of action. [Section 340.1] provided that the time for commencingan action for recovery of damagessuffered as a result of childhood sexual abuse against the direct perpetrator of the abuseis eight years after the plaintiff reaches majority(i.e., 26 years of age) or within three years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by the abuse, whicheveroccurslater. The California Supreme Court held [in Shirk] that, notwithstanding [section 340.1's] statute oflimitations time frames, a timely six-month claim is a prerequisite to maintaining a claim for childhood sexual abuse against a public entity school district. [Citation]. The Court. concluded that nothing in the express language of[section 840.1] (or [its] legislative history) indicated the intent of the Legislature to exempt childhood sexual abuse claims from the GovernmentTort Claims Act. 48 This bill would expressly exempt claims against local public entities for childhood sexual abuse from the Government Tort Claim’s Act’s six-month written claim requirement for any claim arising out of conduct that occurs on or after January 1, 2009. DISCUSSION Shirking Expectations Part of the intent behind [section 340.1] was to provide victims of childhood sexual abuse with more timetofile their claims to recover damages. Specifically [section 340.1] was intendedto allow plaintiffs to file a claim up until the age of 26 (which is 8 years after becoming an adult). However, the California Supreme Courtruled in the Shirk case that [section 340.1] failed to exempt childhood sexual abuse claims from the generally applicable GovernmentTort Claims Act. As a result, the Supreme Court held that plaintiffs seeking to file claims against public entity school districts muststillpresent a written claim within six moths [sic] ofthe injury (accrual of the causeofaction). Six Monthsis Impractical The six month reporting requirement imposed by the Government Tort Claims Act is an impractical requirement for childhood sexual abuse cases. Fora variety ofreasons, childhood sexual abuse can go undiscovered for decades. Yet current law requires a victim ofsuch abuseto submit a written claim to a governmententity within six months of the abuse, ifthat victim ever hopesto file a claim against the entity for damages. This essentially penalizes child victims for not having the courage to disclose the abuse within six months because, if they do not submit a report, then the victim cannot pursuea claim againsta local governmententity for the abuse. 49 By exempting childhood sexual abuse from the Government Tort Claims Act, this bill would exempt victims from having to submit a report within six months of their abuse. As a result, they would be able to pursue their claims according to the provisionsof [section 340.1]... .. (Governor's Off. of Planning & Research, Enrolled Bill Rep. on Sen. Bill No. 640 (2007-2008 Reg. Sess.) Aug. 14, 2008, pp. 2-4 (emphasis added).) The legislative history clearly demonstrates that when enacting Government Codesection 905, subdivision (m), the Legislature understood that, notwithstanding section 340.1, Shirk mandated compliance with the Act’s six-month claim presentation deadline, which requires presenting a claim within six monthsof the abuse. Althoughoriginally intending to completely gut the holding of Shirk (and V.C:) by exempting all childhood sexual abuse causesof action brought undersection 340.1 from the Act’s claim presentation requirements, for fiscal policy reasons the Legislature chose to exempt only those causes of action based on post-January 1, 2009 conduct. By doing so, the Legislature left intact the holding of Shirk (and V.C)for childhood sexual abuse causesof action based on pre-January 1, 2009 conduct. Childhood sexual abuse causesof action based on pre-January 1, 2009 conduct remain, as Shirk 50 and V.C. established, subject to the Act’s claim presentation requirement and six-month deadline, the latter running from the date of the last abuse. "[W]hen the Legislature amendsa statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previousjudicial construction. Accordingly, reenacted portions of the statute are given the same construction they received before the amendment." (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734; see Estate ofHeath (2008) 166 Cal.App.4th 396, 402 ("Lwlhen a statute has been construed by judicial decision, and that construction is not altered by subsequentlegislation, it must be presumed that the Legislature is aware of the judicial construction and approvesof it"); accord Goldstone v. County of Santa Cruz (2012) 207 Cal.App.4th 1038, 1047.) 51 5. Attempted amendmentsto section 340.1 subsequent to the enactment of Government Code subdivision (m) further evidence the Legislature's intent when enacting Government Code section 905, subdivision (m) to keep in place existing case law requiring presentation of a claim within six monthsof the abuse for childhood sexual abuse of causes of action based on pre-January 1, 2009 conduct During the 2013-2014 regular Legislative session, the Legislature sought to amendsection 340.1 with Senate Bill 131, (Sen. Bill No. 131 (2013-2014 Reg. Sess.)), and Senate Bill 924, (Sen. Bill No. 924 (2013-2014 Reg. Sess.)), to further extend the limitations period for childhood sexual abuse causes of action and to revive previously lapsed claims. (See Sen. Judiciary Com., Analysis of Sen. Bill No. 131 (2013-2014 Reg. Sess.), as amended May 2, 2013; Sen. Judiciary Com., Analysis of Sen. Bill No. 924 (2013-2014 Reg. Sess), as introduced.) Although both were vetoed by Governor Brown,an analysis of the legislative history is appropriate as it further supports the conclusion that when enacting Government Codesection 905, subdivision (m) and limiting its impact to post-January 1, 2009 conduct, the Legislature approved, notwithstandingsection 340.1, Shirk and V.C.'s holdings that the failure to present a claim toa government entity for childhood sexual abuse within six months 52 of the abuse bars a lawsuit against the governmententity. (See Freedom Newspapers, Inc. v. Orange County Retirement Board ofDirectors (1993) 6 Cal.4th 821, 832-833 ("The Legislature's adoption of subsequent, amendinglegislation that is ultimately vetoed may be considered as evidence of the Legislature's understanding of the unamended,existing statute.").) Although both Senate Bill 131 and Senate Bill 924 sought to further extend the limitation period and revive previously lapsed causesof action for childhood sexual abuse, neither sought to alter the "status quo" regarding childhood sexual abuse causes of action against a governmententity established by Shirk, which the Legislature understood as requiring the presentation of a claim within six monthsof the last abuse. Indeed, the Legislature specifically noted that adults not previously complying with the Act's six-month claim presentation deadline would remain barred from suing a governmententity, unless the cause of action involved post-January 1, 2009 conduct, as provided in Government Code section 905, subdivision (m). (See Sen. Judiciary Com., Analysis of Sen. Bill No. 131 (2013-2014 Reg. Sess.), as amended May 2, 2013, p.p. 7; Sen. Appropriations Com., Analysis of Sen. Bill No. 131 (2013-2014 Reg. Sess.), as 53 amended May9, 2013, p. 4; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 131 (2013-2014 Reg. Sess.), as amended May28, 2013, p. 9; Assem. Comm. on Appropriations, Analysis of Sen. Bill 131 (2013-2014 Reg. Sess.), as amended June 19, 2013,p. 4; Sen. Appropriations Com., Analysis of Sen. Bill No. 924 (2013-2014 Reg. Sess.), as amended May13, 2014, p. 3; Assem. Com.on Judiciary, Analysis of Sen. Bill No. 924 (2013-2014 Reg.Sess.), as amended June 11, 2014, p.s 6-7; Assem. Com. on Appropriations, Analysis of Sen. Bill No. 924 (2013-2014 Reg. Sess.), as amended June 11, 2014,p. 2.) V. Conclusion Section 340.1 and its delayed discovery provisions do not govern the accrual date for purposes of determining whether Rubenstein timely complied with the Act’s claim presentation deadlines. Notwithstanding section 340.1, Rubenstein had to present a claim to Doe within six monthsof the last abuse in 1994 and seek permission to present a late claim within one-year of the last abuse in 1994. Because Rubenstein did not, the trial court lacked jurisdiction to relieve Rubenstein of her obligations under the Act. Indeed, Rubenstein’s claims against Doe are 54 affirmatively barred. This Court must reverse the Court of Appeal’s decision and clarify that Shirk, V.C. and County ofLos Angeles, remain good law regarding causes of action for childhood sexual abuse based on pre-January 1, 2009 conduct. Respectfully submitted, DATED:August 14, 2016 Daley & Heft, LLP LgeRoistachior Richard J. Schneider Attorneys for Defendant and Petitioner Doe No. 1 55 CERTIFICATE OF WORD COUNT The text of this brief consists of 11,689 words as counted by the Microsoft Office 2010 word-processing program used to generate this document. DATED: August 14, 2016 Daley & Heft, LLP By: LacRojafacher f Ric . Schneider Attorneys for Defendant and Petitioner Doe No. 1 56 ATTORNEYor party without attorney (Name, state bar number, and address): Daley & Heft, LLP, Attorneys at Law Lee H. Roistacher, Esq. (SBN 179619) Richard J. Schneider, Esq. (SBN 118580) 462 Stevens Avenue #201, Solana Beach, CA 92075 Telephone No. (858) 755-5666 Facsimile No. (858) 755-7870 ATTORNEYFOR (Name): Doe No.I IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Street Address: 350 McAllister Street City and Zip Code: San Francisco, CA 94102 FOR COURT USE ONLY PLAINTIFF(S)/PETITIONER(S) Doe No. I Defendant(S)/RESPONDENT(S) Latrice Rubenstein Case Number: §234269 ‘ Court of Appeal Case No. . D066722 Superior Court Case No.: ECU08107 PROOF OF SERVICE—CIVIL Check method ofservice: C1 ByPersonal Service C1 By Mail CO By Messenger Service O By Facsimile {X] By Overnight Delivery O By E-Mail/Electronic Transmission JUDGE: _Hon.Juan UlloaDEPT: 9 1, (Do not use this ProofofService to show service ofa Summons and Complaint) Atthe time of service I was over 18 years of age and nota party to this action. Myaddressis (specify one): a. Business: b. ED Residence: 462 Stevens Avenue, Suite 201, Solana Beach, CA 92075 The fax numberor electronic address from which I served the documents is (complete ifservice was byfax or electronic service): — On(date): August 5 2016_, I served the following documents(specify): [X]The documentsarelisted in the Attachmentto Proofof Service-Civil (Documents Served). I served the documents on the person or personsbelow,as follows: a. Nameofperson served: b. (Complete ifservice was bypersonalservice, mail, overnight, or messenger service.) Business or residential address where person was served: ce. LO (Completeifservice was byfax or electronic service.) (1) Fax numberorelectronic notification address where person was served: (2) Time ofService: The names, addresses, and other applicable information about the persons served is on the Attachment to Proof of Service—Civil (Persons Served). The documents were served by the following means (specify): C1 Bypersonalservice. I personally delivered the documents to the persons at the addresses listed in item 5. represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an individual in charge ofthe office, between the hours of nine in the morning andfive in the evening.(2) For a party, delivery was madeto the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning andsix in the evening. (1) For a party CASE NAME: CASE NUMBER: Doe No. I v. Latrice Rubenstein $234269 Court of Appeal Case No. D066722 Superior Court Case No.: ECU08107 5.b. 1 By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 5 and (specify one): (1) 1 deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. (2) O placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondencefor mailing. On the same day that correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. _ am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mailat (city and state): Solana Beach, California :. [EX] By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in itemS. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box ofthe overnight delivery carrier. 1. (1 By messenger service. | served the documents by placing them in an envelope or package addressedto the personsat the addresses listed in item 5 and providing them to a professional messenger service for service. (A declaration by the messenger must accompany this ProofofService or be contained in the Declaration ofMessenger below.) >, (1 Byfax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numberslisted in item 5. No error was reported by the fax machinethat I used. A copy ofthe record of the fax transmission, which I printed out, is attached. f Byelectronic service. Based on a court orderor an agreementofthe parties to accept service by e-mail or electronic transmission,I caused the documents to be sent to the personsat the e-mail addresseslisted in item 5. | declare under penalty of perjury underthe laws of the State of California that the foregoingis true and correct. Date: Augu:st Ls . 2016 ariaKileeas Warrn . cbccnet TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) Tfitem 5d above is checked, the declaration below must be completed or a separate declarationfrom a messenger mustbe attached.) DECLARATION OF MESSENGER _] Bypersonalservice. I personally delivered the envelope or package received from the declarant above to the personsat the addresses listed in item 4. (1) For a party represented by an attorney, delivery was madeto the attorney orat the attorney's office by leaving the documents in an envelope or package, which was clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office, (2) For a party, delivery was made to the party or by leaving the documents at thé party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. At the time ofservice, I was over 18 years of age. I am not a party to the above-referenced legal proceeding. _ served the envelope or package,as stated above, on (date): _ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. TYPE OR PRINT NAME OF DECLARANT) . (SIGNATURE OF DECLARANT) ATTACHMENTTO PROOF OF SERVICE—CIVIL (Proofof Service) CASE NAME: Doe No. I v. Latrice Rubenstein CASE NUMBER: 5234269 Court of Appeal Case No. D066722 Superior Court Case No.: ECU08107 ATTACHMENT TO PROOF OF SERVICE - CIVIL DOCUMENTSSERVED) The documents that were servedare as follows (describe each documentspecifically): OPENING BRIEF ON THE MERITS ATTACHMENTTO PROOF OF SERVICE—CIVIL (Proof of Service) CASE NAME: Doe No. 1 v. Latrice Rubenstein CASE NUMBER: S234269 Court of Appeal Case No. D066722 Superior Court Case No.: | ECU08107 ATTACHMENT TO PROOFOF SERVICE- CIVIL (PERSONS SERVED) Name, Address, and Other Applicable Information About Persons Served: Nameof Person Served: Where Served: (Provide business or residential address where service was made bypersonalservice, mail, overnightdelivery, or messenger service. For other means ofservice, providefax number or electronic notification address, as applicable.) Time of Service: (Completefor service byfax transmission orelectronic service.) Elliott N. Kanter, Esq. Justin O. Walker, Esq. Elliott N. Kanter, Esq. Justin O. Walker, Esq. Law Offices of Elliott N. Kanter 2445 Fifth Avenue, Suite 350 San Diego, CA 92101 Tel: (619) 231-1883 Fax: (619) 234-4553 Email: ekanter@enkanter.com ]walker@enkanter.com Attomey for Plaintiff and Respondent Latrice Rubenstein Time: Holly Noelle Boyer, Esq. Holly Noelle Boyer, Esq. Esner Chang & Boyer 234 East Colorado Boulevard Suite 975 Pasadena, CA 91101-2262 Tel: (626) 535-9860 Fax: (626) 535-9859 Email: hboyer@ecbappeal.com Attorneys for Plaintiff and Respondent Latrice Rubenstein Leila Nourani, Esq. Sherry L. Swieca, Esq. Douglas M. Egbert, Esq. Leila Nourani, Esq. Sherry L. Swieca, Esq. Douglas M.Egbert, Esq. Jackson Lewis P.C. 725 S. Figueroa Street, Suite 2500 Los Angeles, CA 90017 Tel: (213) 689-0404 Fax (213) 689-0430 Attorneys for Defendant and Petitioner Doe No.1 Time: ATTACHMENTTO PROOF OF SERVICE—CIVIL (Proof of Service) CASE NAME: Doe No. 1 v. Latrice Rubenstein CASE NUMBER: $234269 Court of Appeal Case No. D066722 Superior Court Case No.: ECU08107 Name of Person Served: Where Served: (Provide business or residential address where Service was made bypersonalservice, mail, overnight delivery, or messenger service. For other means ofservice, providefax number or electronic notification address, as applicable.) Time of Service: (Completefor service byfax transmission or electronic service.) Hon. Juan Ulloa Hon. Juan Ulloa Superior Court of California Superior Court of California County of Imperial County of Imperial 939 West Main Street El Centro, CA 92243 (760) 482-2200 Court of Appeal Court of Appeal Division One Fourth District 750 B Street Division One San Diego, CA 92101 750 B Street San Diego, CA 92101(619) 744-0760 ATTACHMENTTO PROOFOF SERVICE—CIVIL (Proof of Service)