SB 131, as introduced, Beall. Damages: childhood sexual abuse: statute of limitations.
Existing law requires that an action for recovery of damages suffered as a result of childhood sexual abuse, as defined, be commenced within 8 years of the date the plaintiff attains the majority or within 3 years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by sexual abuse, whichever occurs later. Existing law provides that certain actions may be commenced on and after the plaintiff’s 26th birthday if specified conditions are met.
This bill would recast these provisions of law relating to the recovery of damages in childhood sexual abuse actions. The bill would provide that actions not barred by law in effect prior to January 1, 2014 are not subject to a statute of limitations and that an action for recovery of damages suffered as a result of childhood sexual abuse may be commenced at any time. With regard to an action barred by the law in effect prior to January 1, 2014, the bill would provide that those actions may be commenced within 30 years of the date the plaintiff attains the age of majority or within five years of the date of the fact of the injury and its causal connection to the sexual abuse is first communicated to the plaintiff by a practicing physician, psychologist, or clinical psychologist, whichever period expires later. The bill would also repeal the requirement that a plaintiff 26 years of age or older at the time the action is filed file a certificate of merit and would repeal other procedural requirements relating to the action.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 340.1 of the Code of Civil Procedure is
2amended to read:
(a) In an action for recovery of damages suffered as a
4result of childhood sexual abuse, the time for commencement of
5the action shall be within eight years of the date the plaintiff attains
6the age of majority or within three years of the date the plaintiff
7discovers or reasonably should have discovered that psychological
8injury or illness occurring after the age of majority was caused by
9the sexual abuse, whichever period expires later, for any of the
10following actions:
11(1) An action against any person for committing an act of
12childhood sexual abuse.
13(2) An action for liability against any person or entity who owed
14a duty of care to the plaintiff, where a wrongful or negligent act
15by that person or entity was a legal cause of the childhood sexual
16abuse which resulted in the injury to the plaintiff.
17(3) An action for liability against any person or entity where an
18intentional act by that person or entity was a legal cause of the
19childhood sexual abuse which resulted in the injury to the plaintiff.
20(b) (1) No action described in paragraph (2) or (3) of
21subdivision (a) may be commenced on or after the plaintiff’s 26th
22birthday.
23(2) This subdivision does not apply if the person or entity knew
24or had reason to know, or was otherwise on notice, of any unlawful
25sexual conduct by an employee, volunteer, representative, or agent,
26and failed to take reasonable steps, and to implement reasonable
27safeguards, to avoid acts of unlawful sexual conduct in the future
28by that person, including, but not limited to, preventing or avoiding
29placement of that person in a function or environment in which
30contact with children is an inherent part of that function or
31environment. For purposes of this subdivision, providing or
P3 1requiring counseling is not sufficient, in and of itself, to constitute
2a reasonable step or reasonable safeguard.
3(c) Notwithstanding any other provision of law, any claim for
4damages described in paragraph (2) or (3) of subdivision (a) that
5is permitted to be filed pursuant to paragraph (2) of subdivision
6(b) that would otherwise be barred as of January 1, 2003, solely
7because the applicable statute of limitations has or had expired, is
8revived, and, in that case, a cause of action may be commenced
9within one year of January 1, 2003. Nothing in this subdivision
10shall be construed to alter the applicable statute of limitations
11period of an action that is not time barred as of January 1, 2003.
12(d) Subdivision (c) does not apply to either of the following:
13(1) Any claim that has been litigated to finality on the merits in
14any court of competent jurisdiction prior to January 1, 2003.
15Termination of a prior action on the basis of the statute of
16limitations does not constitute a claim that has been litigated to
17finality on the merits.
18(2) Any written, compromised settlement agreement which has
19been entered into between a plaintiff and a defendant where the
20plaintiff was represented by an attorney who was admitted to
21practice law in this state at the time of the settlement, and the
22plaintiff signed the agreement.
23(e) “Childhood sexual abuse” as used in this section includes
24any act committed against the plaintiff that occurred when the
25plaintiff was under the age of 18 years and that would have been
26proscribed by Section 266j of the Penal Code; Section 285 of the
27Penal Code; paragraph (1) or (2) of subdivision (b), or of
28subdivision (c), of Section 286 of the Penal Code; subdivision (a)
29or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
30subdivision (b), or of subdivision (c), of Section 288a of the Penal
31Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code;
32Section 647.6 of the Penal Code; or any prior laws of this state of
33similar effect at the time the act was committed. Nothing in this
34subdivision limits the availability of causes of action permitted
35under subdivision (a), including causes of action against persons
36or entities other than the alleged perpetrator of the abuse.
37(f) Nothing in this section shall be construed to alter the
38otherwise applicable burden of proof, as defined in Section 115
39of the Evidence Code, that a plaintiff has in a civil action subject
40to this section.
P4 1(g) Every plaintiff 26 years of age or older at the time the action
2is filed shall file certificates of merit as specified in subdivision
3(h).
4(h) Certificates of merit shall be executed by the attorney for
5the plaintiff and by a licensed mental health practitioner selected
6by the plaintiff declaring, respectively, as follows, setting forth
7the facts which support the declaration:
8(1) That the attorney has reviewed the facts of the case, that the
9attorney has consulted with at least one mental health practitioner
10who is licensed to practice and practices in this state and who the
11attorney reasonably believes is knowledgeable of the relevant facts
12and issues involved in the particular action, and that the attorney
13has concluded on the basis of that review and consultation that
14there is reasonable and meritorious cause for the filing of the action.
15The person consulted may not be a party to the litigation.
16(2) That the mental health practitioner consulted is licensed to
17practice and practices in this state and is not a party to the action,
18that the practitioner is not treating and has not treated the plaintiff,
19and that the practitioner has interviewed the plaintiff and is
20knowledgeable of the relevant facts and issues involved in the
21particular action, and has concluded, on the basis of his or her
22knowledge of the facts and issues, that in his or her professional
23opinion there is a reasonable basis to believe that the plaintiff had
24been subject to childhood sexual abuse.
25(3) That the attorney was unable to obtain the consultation
26required by paragraph (1) because a statute of limitations would
27impair the action and that the certificates required by paragraphs
28(1) and (2) could not be obtained before the impairment of the
29action. If a certificate is executed pursuant to this paragraph, the
30certificates required by paragraphs (1) and (2) shall be filed within
3160 days after filing the complaint.
32(i) Where certificates are required pursuant to subdivision (g),
33the attorney for the plaintiff shall execute a separate certificate of
34merit for each defendant named in the complaint.
35(j) In any action subject to subdivision (g), no defendant may
36be served, and the duty to serve a defendant with process does not
37attach, until the court has reviewed the certificates of merit filed
38pursuant to subdivision (h) with respect to that defendant, and has
39found, in camera, based solely on those certificates of merit, that
40there is reasonable and meritorious cause for the filing of the action
P5 1against that defendant. At that time, the duty to serve that defendant
2with process shall attach.
3(k) A violation of this section may constitute unprofessional
4conduct and may be the grounds for discipline against the attorney.
5(l) The failure to file certificates in accordance with this section
6shall be grounds for a demurrer pursuant to Section 430.10 or a
7motion to strike pursuant to Section 435.
8(m) In any action subject to subdivision (g), no defendant may
9be named except by “Doe” designation in any pleadings or papers
10filed in the action until there has been a showing of corroborative
11fact as to the charging allegations against that defendant.
12(n) At any time after the action is filed, the plaintiff may apply
13to the court for permission to amend the complaint to substitute
14the name of the defendant or defendants for the fictitious
15designation, as follows:
16(1) The application shall be accompanied by a certificate of
17corroborative fact executed by the attorney for the plaintiff. The
18certificate shall declare that the attorney has discovered one or
19more facts corroborative of one or more of the charging allegations
20against a defendant or defendants, and shall set forth in clear and
21concise terms the nature and substance of the corroborative fact.
22If the corroborative fact is evidenced by the statement of a witness
23or the contents of a document, the certificate shall declare that the
24attorney has personal knowledge of the statement of the witness
25or of the contents of the document, and the identity and location
26of the witness or document shall be included in the certificate. For
27purposes of this section, a fact is corroborative of an allegation if
28it confirms or supports the allegation. The opinion of any mental
29health practitioner concerning the plaintiff shall not constitute a
30corroborative fact for purposes of this section.
31(2) Where the application to name a defendant is made prior to
32that defendant’s appearance in the action, neither the application
33nor the certificate of corroborative fact by the attorney shall be
34served on the defendant or defendants, nor on any other party or
35their counsel of record.
36(3) Where the application to name a defendant is made after
37that defendant’s appearance in the action, the application shall be
38served on all parties and proof of service provided to the court,
39but the certificate of corroborative fact by the attorney shall not
40be served on any party or their counsel of record.
P6 1(o) The court shall review the application and the certificate of
2corroborative fact in camera and, based solely on the certificate
3and any reasonable inferences to be drawn from the certificate,
4shall, if one or more facts corroborative of one or more of the
5charging allegations against a defendant has been shown, order
6that the complaint may be amended to substitute the name of the
7defendant or defendants.
8(p) The court shall keep under seal and confidential from the
9public and all parties to the litigation, other than the plaintiff, any
10and all certificates of corroborative fact filed pursuant to
11subdivision (n).
12(q) Upon the favorable conclusion of the litigation with respect
13to any defendant for whom a certificate of merit was filed or for
14whom a certificate of merit should have been filed pursuant to this
15section, the court may, upon the motion of a party or upon the
16court’s own motion, verify compliance with this section by
17requiring the attorney for the plaintiff who was required by
18subdivision (h) to execute the certificate to reveal the name,
19address, and telephone number of the person or persons consulted
20with pursuant to subdivision (h) that were relied upon by the
21attorney in preparation of the certificate of merit. The name,
22address, and telephone number shall be disclosed to the trial judge
23in camera and in the absence of the moving party. If the court finds
24there has been a failure to comply with this section, the court may
25order a party, a party’s attorney, or both, to pay any reasonable
26expenses, including attorney’s fees, incurred by the defendant for
27whom a certificate of merit should have been filed.
28(r) The amendments to this section enacted at the 1990 portion
29of the 1989-90 Regular Session shall apply to any action
30commenced on or after January 1, 1991, including any action
31otherwise barred by the period of limitations in effect prior to
32January 1, 1991, thereby reviving those causes of action which
33had lapsed or technically expired under the law existing prior to
34January 1, 1991.
35(s) The Legislature declares that it is the intent of the Legislature,
36in enacting the amendments to this section enacted at the 1994
37portion of the 1993-94 Regular Session, that the express language
38of revival added to this section by those amendments shall apply
39to any action commenced on or after January 1, 1991.
P7 1(t) Nothing in the amendments to this section enacted at the
21998 portion of the 1997-98 Regular Session is intended to create
3a new theory of liability.
4(u) The amendments to subdivision (a) of this section, enacted
5at the 1998 portion of the 1997-98 Regular Session, shall apply
6to any action commenced on or after January 1, 1999, and to any
7action filed prior to January 1, 1999, and still pending on that date,
8including any action or causes of action which would have been
9barred by the laws in effect prior to January 1, 1999. Nothing in
10this subdivision is intended to revive actions or causes of action
11as to which there has been a final adjudication prior to January 1,
121999.
(a) In an action for recovery of damages suffered as a
14result of childhood sexual abuse that was not barred by the law
15in effect prior to January 1, 2014, there shall be no statute of
16limitations and any of the following actions may be commenced
17at any time:
18(1) An action against any person or entity for directly or
19vicariously committing an act of childhood sexual abuse.
20(2) An action for liability against any person or entity who owed
21a duty of care to the plaintiff, where
a wrongful or negligent act
22by that person or entity was a legal cause of the childhood sexual
23abuse which resulted in injury to the plaintiff.
24(3) An action for liability against any person or entity where
25an intentional act by that person or entity was a legal cause of the
26childhood sexual abuse which resulted in injury to the plaintiff.
27(b) In an action for recovery of damages suffered as a result of
28childhood sexual abuse that was barred by the law in effect prior
29to January 1, 2014, the time for commencement of the action shall
30be within 30 years of the date the plaintiff attains the age of
31majority or within five years of the date the fact of the injury and
32its causal connection to the sexual abuse is first communicated to
33the plaintiff by a physician, psychologist, or clinical psychologist
34licensed to practice and practicing within the state, whichever
35period expires later,
for any of the following actions:
36(1) An action against any person or entity for directly or
37vicariously committing an act of childhood sexual abuse.
38(2) An action for liability against any person or entity who owed
39a duty of care to the plaintiff, where a wrongful or negligent act
P8 1by that person or entity was a legal cause of the childhood sexual
2abuse which resulted in injury to the plaintiff.
3(3) An action for liability against any person or entity where
4an intentional act by that person or entity was a legal cause of the
5childhood sexual abuse which resulted in injury to the plaintiff.
6(c) Any claim for damages that may not be timely commenced
7under subdivision (a) or subdivision (b), as amended January 1,
82014, is revived and a cause of action may
be commenced within
9one year of January 1, 2014. Nothing in this subdivision is intended
10to alter the applicable statute of limitations for any claim described
11in subdivision (a) or (b) that is not time barred by the amendments
12taking effect on January 1, 2014.
13(d) “Childhood sexual abuse” as used in this section includes
14any act committed against the plaintiff that occurred when the
15plaintiff was under the age of 18 years and that would have been
16proscribed by Section 266j of the Penal Code; Section 285 of the
17Penal Code; paragraph (1) or (2) of subdivision (b), or of
18subdivision (c) , of Section 286 of the Penal Code; subdivision (a)
19or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
20subdivision (b), or subdivision ( c ), of Section 288a of the Penal
21Code; subdivision (h), (I), or (j) of Section 289 of the Penal Code;
22Section 647.6 of the Penal Code; or any prior laws of this state of
23similar effect at the time the act was
committed.
24(e) Nothing in this section shall be construed to alter the
25otherwise applicable burden of proof, as defined in Section 115
26of the Evidence Code, that a plaintiff has in a civil action subject
27to this section.
28(f) Nothing in this section is intended to create a new theory of
29liability.
30(g) Nothing in this section is intended to alter the decision in
31Shirk v. Vista Unified School Dist., (2007) 42 Cal.4th 201.
32(h) Nothing in this section is intended to revive any action or
33cause of action that has been litigated to finality on the merits in
34any court of competent jurisdiction prior to January 1, 2014.
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