Sexual Abuse and Delayed Discovery
California Code Of Civil Procedure Section 340.1 And The Delayed Discovery Doctrine
In 1990 the California Legislature amended Code of Civil Procedure Section 340.1, the statute of limitations governing civil suits for damages brought by victims of childhood sexual abuse. The effect of the amendment was to extend the time limit for commencing suit to eight years after the eighteenth birthday of the Plaintiff, or three years after discovery of the causal connection between the abuse and the resulting injury. (Section 340.1[a]) Moreover, the statute now codifies the delayed discovery rule which tolls the accrual of the action until after the Plaintiff discovers the nexus between her injuries and the sexual abuse.
The discovery rule will not be applied uniformly in all cases to delay the accrual of actions governed by Section 340.1. Instead, for actions filed before January 1, 1991, the California Legislature has left implementation of the rule to the discretion of the courts. Their decision to apply the rule will be governed not by the 1990 statutory language but by case authority concerning the common law doctrine.
Cases filed after January 1, 1991 now have the benefit of the longer statutory period and mandatory application of the discovery rule. In the event, however, the Plaintiff is over the age of twenty-six at the time of filing, a certificate of merit is now required.
This article will address the 1990 legislative amendments to C.C.P. 340.1, the legislative intent behind those amendments, and the delayed discovery doctrine.
Sexual Molestation of Children: A Societal View
Estimates of the number of children who fall victim to childhood sexual abuse in this country every year is disturbing, to put it mildly. The statistics found in published reports vary widely but even by the most modest estimates the situation is grave.
The group National Action Against Rape (NAAR) describes sexual abuse of children as a "social problem of immense proportions" which until recently was not fully recognized or understood. Prior to the late ’70s, child sexual abuse was rarely discussed publicly.1 Unfortunately, the number of reported cases continues to rise in spite of the increase in media attention and other efforts focused on the problem.2
NAAR has estimated the magnitude of the problem in the U.S. as follows:
"While as little as 15 years ago incestuous abuse was estimated to occur to only one person per million, more recent estimates are that from one-third to one-sixth of all women, and a similar proportion of men, suffer some sexual abuse in childhood at the hands of a family member or other adult whom they know and trust."3
Another report estimates that as many as 12 to 15 million women had been sexually abused.4
Victims of childhood molestation are increasingly seeking redress from their abusers by filing civil tort actions to recover for their physical and psychological injuries. One reason for the surge in civil filings may be the lack of willingness, or ability, on the part of the criminal justice system to prosecute the abuser, or to provide adequate relief to the victims.5 In a 1989 report entitled "On Trial: America’s Courts and Their Treatment of Sexually Abused Children6," researchers found that in only 24 percent of the cases nationwide involving childhood sexual abuse was any criminal action taken. And of the 256 cases studied, only 58 were tried and only 18 received jail sentences ranging from six months to one year.7
The complexity of the problem faced by prosecutors is reflected in a passage from the 1990 Nevada Supreme Court decision in Petersen v. Bruen, 792 P.2d 18, 22 (Nev. 1990), as follows:
"[T]he issue evokes a plethora of problems stemming from such factors as the age of the child/victims, lack of witnesses, frequent lack of physical evidence, victim defense mechanisms, prosecutorial inexperience, imprecise and controversial investigative and therapy methodology, parental responses and involvement, tension between an accused’s right of confrontation and compounding the extent and duration of trauma to the child/victim, hysteria, length and adversarial nature of the judicial proceedings, and fear."
California’s Statute of Limitations for Childhood
Sexual Abuse – Pre-1990 Amendment
Until 1986, when the legislature added Section 340.1, the California statute of limitations for civil suits based upon childhood sexual abuse was one year (California Code of Civil Procedure Section 340). In relevant part, Section 340(3) read as follows:
"Within one year:
3. An action for liable, slander, assault, battery, seduction of a person below the legal age of consent, or for injury to one caused by the wrongful act…of another…" (West, 1982)
The one-year limitation, however, was tolled by California Code of Civil Procedure Section 352(a) until the minor’s eighteenth birthday. (See also Colleen L. v. Howard, 209 Cal.App.3d 542; 257 Cal.Rptr. 263 )
The enactment of Section 340.1 in 1986 extended the limitations period in childhood sexual abuse cases to three years. The limitations period commenced on the eighteenth birthday of the plaintiff.8 Actions controlled by that section were limited to sexual abuse by a "household or family member."9
Moreover, Section 340.1, which became effective January 1, 1987, expressly revived actions which had been time-barred under the pre-1986 statute, Section 340(3), subject to certain conditions,10 and it expressly preserved a victim’s right to invoke, and the court’s discretionary right to apply, the delayed discovery rule to extend the date of accrual of actions controlled by that statute.11 In spite of the many attempts by plaintiffs to make use of the delayed discovery rule, California courts have been reluctant to apply the discovery doctrine in sexual abuse cases.12
The addition of Section 340.1, particularly Subsection (d), reflects the recognition by the legislature of the inequity of requiring victims to commence suit by their nineteenth birthday.13 Research has shown that victims typically develop psychological coping, or blocking, mechanisms which may cause them to suppress the abuse or prevent their understanding of the cause of their trauma.14
According to a 1983 report by Roland C. Summit, M.D., a clinical assistant professor of psychiatry at Harbor-UCLA Medical Center, the five most common reactions of children to sexual assault can be classified as the "child sexual abuse accommodation syndrome."15 The five categories of reactions have been identified as: secrecy; helplessness; entrapment and accommodation; delayed, unconvincing disclosure; and, retraction.16
Dr. Summit described a child’s inability to respond to the abuse and the intimidation typically applied by the abuser to ensure the secrecy of the abuse with the child, as follows:
"The average child never asks and never tells. Contrary to the general expectation that the victim would normally seek help, the majority of the victims in retrospective surveys had never told anyone during their childhood. (Citations omitted.) Respondents expressed fear that they would be blamed for what had happened or that a parent would not be able to protect them from retaliation. Many of those who sought help reported that parents became hysterical or punishing or pretended that nothing had happened. (Citations omitted)"17
Further, the author comments:
"Unless the victim can find some permission and power to share the secret, and unless there is the possibility of an engaging, non-punitive response to disclosure, the child is likely to spend a lifetime in what comes to be a self-imposed exile from intimacy, trust and self-validation."18 (Emphasis added)
Additionally, the victim, although able to recall the events, may be incapable of understanding the causal connection between their psychological injuries and the abuse.19
Another factor complicating an incest survivor’s ability to file suit is, that in order for them to take action, they must not only make the connection between the abuse and their trauma, but must also have an appreciation that the actions of their abuser were "wrongful."20
Finally, molestation victims are frequently found to have difficulty forming intimate relationships, the effects of which may not manifest until the abused person attempts to enter into a relationship which has a sexual element. The emotional problems that follow, and their causal connection with the childhood abuse, may not be apparent until the victim reaches his or her 20′s or 30′s.21
The Delayed Discovery Doctrine
It has long been recognized that in "ordinary tort and contract actions," the limitations period begins when the "last essential element to the cause of action" occurs. (Neel v. Magana, Olney, Levy, Cathcart and Gelfand, 6 Cal.3d 176, 187; 98 Cal.Rptr. 837, 491 P.2d 421 )
This rule held true, in most cases, in spite of a plaintiff’s alleged ignorance that a cause of action existed in his favor, or his lack of knowledge of the identity of the tort feasor. (Id. at p. 187)
Early California decisions described the accrual of a cause of action as when "the wrongful act is done and the obligation or liability arises."22 California, as with most states, however, has accepted the delayed discovery doctrine, which provides an exception to the common law rule that an action accrues on the date of injury. (Lambert v. McKenzie, 135 Cal. 100, 103; 67 P.6 ; Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1109; 245 Cal.Rptr. 658, 751 P.2d 923 ; Marsha V., supra at 270) The doctrine was developed in an effort to avoid the "harsh and unjust effects of a rigid adherence to the general rule of accrual at the time of the wrongful act." (Witkin, supra, at Section 354)
The judicially developed doctrine had its genesis in California in an early medical malpractice action. (Huysman v. Kirsch, 6 Cal.2d 302; 57 P.2d 908 )23 The doctrine has now been extended to a broad variety of tort actions, including attorney malpractice,24 products liability, including pharmaceuticals,25 actions for libel,26 as well as a number of other torts.
Under the delayed discovery rule, a cause of action does not accrue until the plaintiff is aware of her injury and its negligent cause. (Jolly, supra, at 1109)
The California Supreme Court in Jolly, supra, defined the discovery rule as follows:
"Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her." (Id. at p. 1110) (Emphasis added)
The terms "wrong,"27 "wrongdoing" and "wrongful" are to be construed in their "lay understanding." (Id. at p. 1110, ftn. 7) The plaintiff in Jolly allegedly suffered adverse effects from the drug Diethylstilbestrol (DES) when she was in utero. In holding that plaintiff’s claim was time barred, the court pointed to plaintiff’s testimony in deposition where she admitted that more than one year prior to the filing of her lawsuit she believed that the drug was defective and that defendants’ conduct was wrongful. The court went on to emphasize that it is the "discovery of facts, not their legal significance" which determines the accrual of a cause of action. (Id. at p. 1113)
A number of recent California appellate decisions involving child molestation have discussed the role of the discovery rule in delaying the limitations period in C.C.P. Section 340.1. (DeRose v. Carswell, 196 Cal.App.3d 1011; 242 Cal.Rptr. 368 ; Snyder v. Boy Scouts of America, 205 Cal.App.3d 1318; 253 Cal.Rptr. 156 ; John R. v. Oakland Unified School District, 48 Cal.3d 438 ; Evans v. Eckleman, 216 Cal.App.3d 1609; 265 Cal.Rptr. 605 ; Marsha V. v. Gardner, 230 Cal.App.3d 663; 231 Cal.App.3d 265 ; David A. v. Superior Court, 20 Cal.App.4th 281; ___ Cal.Rptr.2d ___ [Nov. 1993])
After perusal of these opinions, one can surmise all too quickly the hesitation of the judiciary in accepting the notion that victims tend to develop psychological blocking mechanisms which may preclude them from understanding the abuse or their injuries. This is particularly true in cases where the plaintiff has alleged being assaulted and sexually abused against her will.28
Prior to the 1990 amendments to C.C.P. 340.1, California courts all but refused to apply the delayed discovery doctrine to in childhood sexual abuse cases. It was not until the 1990 decision in Evans v. Eckleman, supra, that a California appellate court, while not deciding whether the discovery rule applied to the facts of the case, left open the possibility that the plaintiffs could amend their complaint, to invoke the rule, by alleging "unawareness" that the abuse was wrongful, or repression of the abuse.29
California courts have routinely followed the DeRose decision where the court distinguished two types of case fact patterns in reference to the delayed discovery rule. Plaintiffs who alleged complete repression of the molestation would be entitled to delayed accrual of the statute, while those who did not allege repression of the abuse, but instead argued that other factors had caused their delay in filing suit were not entitled to the rule.
In DeRose, the court held that the allegations within plaintiff’s complaint, including that the abuse was "against plaintiff’s will and without her consent" and that she "felt great fear," precluded an application of the discovery rule. (Id. at p. 1017)
DeRose was allegedly molested by her step-grandfather over an eight-year period, beginning when she was four years old. She filed suit some thirteen years after the last incident of abuse. The court, reviewing Section 340.1(d), declined to apply the discovery rule, stating that the statutory language "…does not mandate application of the delayed discovery doctrine in any particular case." (Id. at p. 1020) The legislative intent, the court reasoned, was to "avoid the implication" that the longer statutory period was a "rejection" of the discovery doctrine. (Id. at p. 1020)
The requirements of the rule, however, had not been changed. And the rule applies "…only when a plaintiff has not discovered all of the facts essential to the cause of action." (Id. at p. 1017) The facts set forth in DeRose’s complaint clearly demonstrated her awareness around the time of the abuse of the essential elements to her action. The court characterized the abuse as an "assault" which by definition "causes harm as a matter of law." (Id. at p. 1017) Plaintiff’s argument that her action did not accrue until manifestation of the psychological injury and her understanding of the causal connection between the abuse and the injury, was rejected by the court since she had alleged in her complaint that her abuser, Carswell, had assaulted and molested her against her will, causing her extreme fright. Those facts demonstrated an earlier awareness of the wrongfulness of the conduct which precluded use of the discovery rule.
Plaintiff’s assertion that the abuse caused delayed consequences, i.e., psychological trauma, was not relevant, since plaintiff’s action was time barred by the statute of limitations before her complaint was filed. The DeRose court, however, expressly left open the possibility that plaintiff might have successfully argued for the application of the delayed discovery doctrine had she pled that she "repressed her memories of the sexual assaults until one year before filing her complaint." (Id. at p. 1018)
In Snyder, supra, plaintiff’s sexual abuser was a former Boy Scout leader who allegedly sexually assaulted plaintiff over a three-year period. Plaintiff’s complaint was filed in 1985, a little more than four years after the last incident of abuse, and several months after plaintiff’s 19th birthday. Plaintiff’s delay in filing suit, he alleged, was due to "embarrassment, humiliation, fear and sorrow" over the abuse. (Id. at p. 1322)
In opposing defendant’s motion for summary judgment based upon the one-year statute of limitations (Section 340), plaintiff presented the declaration of a psychiatrist who opined that embarrassment, humiliation and fear were "byproducts of post-traumatic syndrome" which explained plaintiff’s delay in divulging the abuse earlier. (Id. at p. 1322) In refusing to apply the discovery rule, the court emphasized that plaintiff had established in his own declaration that he had suffered "appreciable harm" before his eighteenth birthday. (Id. at p. 1324) The statute began running on Snyder’s eighteenth birthday since all of the facts essential to plaintiff’s cause of action were known by him at that time. (Id. at p. 1324)
In Evans, supra, the First District Court of Appeals provided plaintiffs in sexual abuse cases with a glimmer of hope when it held that plaintiffs should be allowed to amend their complaints to allege delayed discovery of the wrongfulness of the defendants’ conduct, or that they repressed the abuse. An "awareness of wrongdoing," the court stated, was a condition precedent to the accrual of the plaintiffs’ action. (Id. at p. 1618) Plaintiffs were three brothers who alleged they were molested by their uncle and former foster father. They argued that they developed psychological blocking mechanisms which had precluded them from understanding the wrongfulness of the abuse and the nature and extent of the resulting damage.
The court noted that "two common themes" connected the numerous California cases dealing with the delayed discovery doctrine. (Id. at p. 1614) The first such theme is that the discovery rule has been routinely extended to causes of action where the plaintiff would find it difficult to discover or comprehend their injuries or the negligence which caused them. Noting that in some cases the plaintiff’s injuries, or their negligent cause, is "actually hidden," as in a medical malpractice action where foreign objects have been left in the plaintiff’s body after surgery. (Id. at p. 1614, citing Ashworth v. Memorial Hospital, 206 Cal.App.3d 1046, 1054-1062; 254 Cal.Rptr. 104 )
Additionally, the nature of the defendants’ conduct, such as in a professional malpractice case, may be such that a layman may find it difficult, if not impossible, to comprehend the negligence. (Id. at p. 1615, citing Neel v. Magana, Olney, Levy, Cathcart and Gelfand, supra, 6 Cal.3d at p. 188)
The second theme is the existence of a "special relationship" between the parties, such as a fiduciary relationship where the defendant has occupied a superior position to comprehend the act and the injury. In such cases, a defendant should not be allowed to benefit from a plaintiff’s failure to comprehend the negligent act or the injury. (Id. at p. 1615, citing April Enterprises, Inc. v. KTTV, 147 Cal.App.3d 805, 831; 195 Cal.Rptr. 421 ) The burden of proof is on the plaintiff to plead facts sufficient to rebut the presumption that he was aware of the injury on the date it occurred. (April Enterprises, supra, at p. 832)
In its discussion of the discovery rule, the court in Evans recognized the unique psychological sequelae that child abuse victims suffer. (Id. at p. 1615) The court pointed out that researchers and commentators in the field of childhood sexual abuse have identified psychological blocking or coping mechanisms which children develop in response to the abuse. Although a child may not totally repress the memory of the abuse, it may be an extended period of time before she can come to terms with the "full impact" of the abuse. (Id. at p. 1616)
The court stopped short, however, of a wholesale extension of the delayed discovery rule to cases involving adults who sue for injuries suffered as a result of childhood sexual abuse. In order to successfully argue that the discovery rule applies, the court stated:
"For plaintiffs to prevail they must be able to show they remained unaware of, and had no reason to suspect, the wrongfulness of the conduct until a time less than three years before the action was filed." (Id. at p. 1619) (Emphasis added)
The plaintiff who alleges sexual molestation against "his or her will," however, bears the risk of having their action dismissed for untimeliness since the delayed discovery rule will not toll the accrual of an action where the plaintiff suffers "actual and appreciable injury" at the time of the abuse. This was the very crux of the court’s decisions in DeRose, supra, and Snyder, supra, where the courts declined to apply the discovery rule to extend the limitations. This view is also consistent with the court’s interpretation of the rule in Jolly, supra. There, the court held that the statute begins to run when the plaintiff "suspects," or "should suspect," that "someone has done something wrong to her." (Supra at p. 1110)
Therefore, where the victim does not purport to have repressed the abuse itself, but instead alleges only to have recently discovered the extent of their psychological injuries from the abuse, tolling of the statute does not occur. (Evans, supra, at p. 1620)
In Marsha V. v. Gardner, supra, the delayed discovery doctrine was again rejected, with the court stating that the facts in DeRose, supra, were factually "indistinguishable" and the opinion "persuasive." (Id. at p. 272) Marsha V. made no claim that she was unaware of the abuse when it occurred, that she had suppressed or forgotten the acts, nor had she professed "contemporaneous or belated ignorance of the wrongfulness of respondent’s conduct." (Id. at p. 271) Rather, plaintiff complained that there had been a delay in her discovery of the "ongoing, deepseated psychological injuries and the causal link between those injuries and [respondent's] misconduct." (Id. at p. 271) The court held that such facts were insufficient to invoke the discovery rule.
The Marsha V. court reflects a common thread between the decisions rejecting the delayed discovery rule in the case of adult survivors of childhood molestation. A plaintiff who, by her own admission, was molested "against her will" but does not claim to have immediately and completely suppressed the abuse, cannot take advantage of the discovery rule. This should be distinguished from the case where the plaintiff claims to have had no prior awareness of the "wrongfulness" of the defendant’s conduct until some point in time which is no more than three years before the complaint is filed. This is the distinction drawn in the Jolly and Evans decisions. California courts have thus far been reluctant to apply the discovery rule, unless the plaintiff can successfully argue that she has repressed the molestation, or that she was ignorant of the "wrongfulness" of her abuser’s conduct.
The 1990 Amendment to C.C.P. Section 340.1
In 1990, the California Legislature amended Section 340.1 by passage of Senate Bill 108. The bill was introduced by Senator Bill Lockyer on December 20, 1988. The bill was sponsored by the group National Action Against Rape with additional support being received from Adult Survivors of Sexual Abuse and the California Child, Youth, and Family Coalition. The bill was opposed by California Defense Counsel.30
The effect of the amendment was to extend the statute of limitations for injuries resulting from childhood sexual abuse to (1) eight years after the plaintiff reaches majority, or (2) three years after the plaintiff discovers, or reasonably should have discovered, that psychological injury or illness occurring after majority was caused by the abuse.31
In addition to extending the time for filing suit, the Legislature added a number of additional noteworthy revisions:
Subsection (a), in addition to setting forth the elongated time period, limits recovery for childhood sexual abuse to psychological injury or illness. Former Section 340.1 provided for recovery for "injury or illness" without the added qualifying term "psychological." Furthermore, this subsection appears to condition the use of the codified delayed discovery rule on psychological injury or illness "occurring after the age of majority." Courts have yet to determine the significance of that language; however, it seems to imply that plaintiffs who have psychological injury or illness before the age of majority may not be eligible for the new delayed discovery provision. In that case the plaintiff would have to contend with the state of the law as reflected in those decisions concerning the delayed discovery doctrine.
Subsection (b) redefines "childhood sexual abuse" to include any of the conduct proscribed in the Penal Code sections referenced, while plaintiff was under the age of 18. Such proscribed acts include those identified in P.C. Sect. 266j (procurement of child under 16 for lewd or lascivious acts); P.C. Sect. 285 (incest); P.C. Sect. 286 (sodomy); P.C. Sect. 288 (lewd or lascivious acts with child under age 14); P.C. Sect. 288a (oral copulation) (penetration of genital or anal openings with a foreign object, substance, instrument or device of a person who is under 18 years of age); P.C. Sect. 647.6 (annoying or molesting child under 18).
Subsection (d) provides that a plaintiff 26 or older at the time the action is filed must file a certificate of merit, executed by the attorney for plaintiff (see Subsection [e]), and by a licensed mental health practitioner. The requirements of the certificate are rather burdensome and have harsh penalties (refer to subsection (h) regarding possible disciplinary proceedings against the attorney) for violations. The certificate must basically set forth that the attorney has reviewed the facts of the case and consulted with at least one "licensed mental health practitioner" (licensed and practicing in California) who the attorney believes is knowledgeable of the "relevant facts and issues" of the case. And, the certificate must state that the attorney believes there is "reasonable and meritorious cause" for filing suit.
Subsection (e)(2) requires that the certificate by the mental health practitioner set forth that they have concluded, from their knowledge of the facts and issues of the case, that there is a "reasonable basis to believe that the plaintiff had been subjected to childhood sexual abuse."
Subsection (e)(3) provides that an attorney may file a declaration stating an inability to obtain the consultation of a mental health practitioner because of the time constraints imposed by the statute of limitations. In that event, the certificate must be filed within 60 days of filing suit.
Subsection (g) prohibits the identification of any defendant until after review and approval of the certificate of merit, in camera, by the court.
Subsection (k) provides that the amendments to Section 340.1 apply to actions commenced on or after January 1, 1991. This is an important change. The 1986 version of the statute, namely subsection (e)(1)&(2) made the statute retroactive, and expressly revived cases which had been time barred prior to January 1, 1987.(Subsection (e)(1)) This distinction was the deciding factor in the court’s decision in David A.,supra, which will be discussed later in this article.
Subsection (l) expressly preserves the discretionary right of a court to apply "equitable exceptions" to the statute of limitations, including the delayed discovery rule, as they relate to actions filed prior to January 1, 1991.
Legislative Intent Re: SB 108
Senate Bill 108 was amended in Senate on February 6, 1989 and amended in the Assembly on August 21, 1989, January 31, 1990, April 30, 1990 and again on August 15, 1990. The final amended version was signed by Governor Deukmejian on September 29, 1990 and filed with the Secretary of State on September 30, 1990.
From the time of its original introduction by Senator Lockyer, until its final approval, the bill was submitted to the Senate Committee on Judiciary and the Assembly Committee on Judiciary for review of policy issues raised by the bill.
The Senate Committee on Judiciary circulated a policy committee analysis of the bill detailing the purpose for amending the statute of limitations in child sexual abuse cases. The following comment is taken from the Senate Committee on Judiciary policy committee analysis as heard on March 28, 1989:
"Existing law provides a three-year statute of limitations for tort actions based on child sexual abuse by a family or household member, and provides the courts are not precluded from applying delayed discovery exceptions to cases filed beyond the three-year limit. However, two recent appellate decisions have held the delayed discovery doctrine inapplicable to such suits. In addition, the current statute is limited to actions against a family or household member, and provides no relief for victims of sexual abuse by a neighbor, teacher, daycare provider, or other non-family member.
"This bill would extend the statute of limitations to eight years from plaintiff’s majority for the commencement of such suits, would expressly provide for delayed discovery accrual, and would drop the existing restriction to actions against a family or household member.
"The purpose of this bill is to recognize the need for all victims of childhood sexual abuse to be allowed a longer time period in which to become aware of their psychological injuries and remain eligible to bring suit." (Emphasis added)32
Furthermore, the committee’s analysis provides some discussion of the delayed discovery doctrine as follows:
"Rather than rely exclusively on the delayed discovery doctrine, SB 108 would extend the time for commencement of actions based on childhood sexual abuse to eight years from the date of plaintiff’s majority, and expressly provide for application of delayed discovery principles to cases brought after that date. The proponents contend that it is well documented that most victims of childhood sexual abuse either repress their memories of the abuse, or are unable to appreciate their injuries until well into their adult years. `An extension of time to sue until the victim’s 26th birthday, coupled with the possibility of showing justifiable delay thereafter, is based on current psychological studies on the hidden long-term effects of such abuse.’" 33
The analysis goes on to point out that there was no justification for disparate treatment of victims who are abused by family members from those who suffer at the hands of teachers, daycare providers, and others. The psychological impact and the sequelae of repression and dissociation are the same.34
David A. v. Superior Court
In a decision which has likely stunned many practitioners representing plaintiffs in childhood sexual abuse cases, as well as proponents to the 1990 statutory amendments, the First District Court of Appeals’ decision in David A. v. Superior Court, 20 Cal.App.4th 281; ___ Cal.Rptr.2d ___ (November 1993), held that claims which had lapsed prior to January 1, 1991 were not revived by the 1990 amendments. Legislative amendments extending a statute of limitations, the court held, are not presumed to revive claims which have lapsed unless the statute expressly provides for that result. (Id. at p. 286)
The plaintiff in David A. filed her complaint in April 1992, approximately 18 years after the last incident of abuse. Plaintiff claimed she had been abused by two stepbrothers and a neighbor in 1974. The action was held to have been time barred on plaintiff’s twenty-first birthday by operation of the 1986 statute which provided a three-year limitations period. The court pointed out that while the 1986 version of Section 340.1, specifically subsection (e)(1), expressly revived claims which had been time barred prior to January 1, 1987, the 1990 amended version of Section 340.1 omitted the revival language. Emphasizing that while three amended versions of SB 108 contained the reviving language previously found in C.C.P. Sect. 340.1 that language was subsequently deleted. (Id. at pp. 286-287)
Since Subdivision (l) specifically refers to actions pending on January 1, 1991, allowing courts the discretion to apply the delayed discovery rule, courts are by no means mandated to apply the 1990 delayed accrual provision.
In holding that the discovery doctrine did not operate to extend the limitations period in the case of David A., the court focused on language in plaintiff’s amended complaint where she had alleged that she was "unable to proceed" due to the "emotionally traumatic and difficult nature of this case." (Id. at p. 288) These allegations, the court reasoned, were insufficient to invoke the discovery rule to postpone accrual of the action. (Id. at p. 288)
The court’s conclusion in David A. is consistent with the apparent intent of the legislature when C.C.P. 340.1 was amended in 1990. In its hearing on S.B. 108 on February 21, 1990, the Assembly Committee on Judiciary in its policy committee analysis, discussed the opposition to the retroactive effect of the bill as follows:
"The California Defense Counsel (CDC) opposes this bill because it may apply to actions pending on the bill’s effective date. CDC contends that the bill applies to pending cases and therefore `is an unwarranted interference in ongoing judicial proceedings to the detriment of the affected parties.’ If such change is to be made at all, it should apply only to causes of action arising after its effective date."35
The 1990 legislative amendments in C.C.P. 340.1 liberalized the statute of limitations in "childhood sexual abuse" cases. The revised statute expanded the time period for commencing suit to eight years, or three years following discovery of the causal nexus between the injury and abuse. The extended time period is devoted to actions filed on or after January 1, 1991. The effect of the legislative revision in 1990 was to create a dual system whereby those actions filed prior to January 1, 1991 are controlled by the 1986 version of C.C.P. Section 340.1 which provides a three-year time limit for cases of abuse by household or family members. It remains an open question however, whether those plaintiffs who have suffered psychological injury or illness before their eighteenth birthday will be entitled to the new statutory delayed discovery rule. The current statute seems to imply that plaintiffs with a psychological condition which occurs before they reach majority may not be entitled to the benefit of the codified discovery rule. Such plaintiffs would then be required to contend with the common law discovery doctrine as interpreted by the courts who were not mandated to apply the rule.
The statute falls short of being ideal, however, on a few points: it now covers only psychological injuries and illness; it has lost its retroactive effect; and, it has added a rather burdensome certificate of merit requirement. Moreover, the nebulous language regarding the delayed discovery of psychological injury or illness occurring after the age of majority, may ultimately result in the exclusion of an entire class of plaintiffs with such injuries prior to their eighteenth birthday, since they may not be entitled to the statutory discovery rule.
By and large, however, the 1990 amendments to the statute have greatly improved access to the courts for adult survivors of childhood sexual abuse who seek damages for their psychological injuries. This was possible only after recognition by law makers of the unique psychological conditions of victims.