Amended in Senate May 2, 2013

Amended in Senate April 4, 2013

Senate Bill No. 131

Introduced by Senators Beall and Lara

(Coauthor: Assembly Member Skinner)

January 24, 2013

An act to amend Section 340.1 of the Code of Civil Procedure, relating to damages.

LEGISLATIVE COUNSEL’S DIGEST

SB 131, as amended, 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 begin insert age of end insert 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.

begin insert

This bill would instead require that an action for recovery of damages suffered as a result of childhood sexual abuse be commenced within 25 years of the date the plaintiff attains the age of majority or within 5 years of the date the fact of the psychological injury and its causal connection to the sexual abuse is first communicated to the plaintiff by a licensed mental health practitioner practicing within the state, whichever period expires later. This bill would provide that these time limits for commencement of an action shall be applied retroactively to any claim that has not been adjudicated to finality on the merits as of January 1, 2014. This bill would revive, for a period of one year, a cause of action, as specified, that would otherwise be barred by the statute of limitations as of January 1, 2014, provided that the plaintiff discovered the cause of his or her injury on or after January 1, 2004.

end insert begin insert

This bill would also provide that a plaintiff shall be entitled to conduct discovery before the court may rule on a motion challenging the sufficiency of the plaintiff’s showing that a person or entity knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct and failed to take reasonable steps, and to implement reasonable safeguards, to avoid those act in the future.

end insert begin delete

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 5 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.

end delete

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 340.1 of the end insert begin insert Code of Civil Procedure end insert begin insert is
amended to read: end insert

340.1.  

(a) In an action for recovery of damages suffered as a
result of childhood sexual abuse, the time for commencement of
the action shall be within begin delete eight end delete begin insert 25 end insert years of the date the plaintiff
attains the age of majority or within begin delete three end delete begin insert five end insert years of the date the
begin delete plaintiff discovers or reasonably should have discovered that
psychological injury or illness occurring after the age of majority
was caused by the sexual abuse, end delete begin insert fact of the psychological injury
and its causal connection to the sexual abuse is first communicated
to the plaintiff by a licensed mental health practitioner practicing
within the state, end insert whichever period expires later, for any of the
following actions:

(1) An action against any person for committing an act of
childhood sexual abuse.

(2) An action for liability against any person or entity who owed
a duty of care to the plaintiff, where a wrongful or negligent act
by that person or entity was a legal cause of the childhood sexual
abuse begin delete which end delete begin insert that end insert resulted in the injury to the plaintiff.

(3) An action for liability against any person or entity where an
intentional act by that person or entity was a legal cause of the
childhood sexual abuse begin delete which end delete begin insert that end insert resulted in the injury to the
plaintiff.

(b) (1) No action described in paragraph (2) or (3) of
subdivision (a) may be commenced on or after the plaintiff’s begin delete 26th end delete
begin insert 43rd end insert birthday.

(2) This subdivision does not apply if the person or entity knew
or had reason to know, or was otherwise on notice, of any unlawful
sexual conduct by an employee, volunteer, representative, or agent,
and failed to take reasonable steps, and to implement reasonable
safeguards, to avoid acts of unlawful sexual conduct in the future
by that person, including, but not limited to, preventing or avoiding
placement of that person in a function or environment in which
contact with children is an inherent part of that function or
environment. For purposes of this subdivision, providing or
requiring counseling is not sufficient, in and of itself, to constitute
a reasonable step or reasonable safeguard. begin insert Notwithstanding any
other provision of law, a plaintiff shall be entitled to conduct
discovery before the court may rule on a motion challenging the
sufficiency of the plaintiff’s showing under this subparagraph. end insert

begin delete

(c) Notwithstanding any other provision of law, any claim for
damages described in paragraph (2) or (3) of subdivision (a) that
is permitted to be filed pursuant to paragraph (2) of subdivision
(b) that would otherwise be barred as of January 1, 2003, solely
because the applicable statute of limitations has or had expired, is
revived, and, in that case, a cause of action may be commenced
within one year of January 1, 2003. Nothing in this subdivision
shall be construed to alter the applicable statute of limitations
period of an action that is not time barred as of January 1, 2003.

end delete begin insert

(c) The time limits for commencement of actions described in
subdivisions (a) and (b) shall be applied retroactively to any claim
that has not been adjudicated to finality on the merits as of January
1, 2014. Notwithstanding any other provision of law, any cause
of action for damages described in paragraph (2) or (3) of
subdivision (a) that would otherwise be barred by the statute of
limitations as of January 1, 2014, is revived, and, in that case, a
cause of action may be commenced within one year of January 1,
2014, provided that the plaintiff discovered the cause of his or her
injuries, as described in subdivision (a), on or after January 1,
2004.

end insert

(d) Subdivision (c) does not apply to either of the following:

(1) Any claim that has been litigated to finality on the merits in
any court of competent jurisdiction prior to January 1, begin delete 2003 end delete begin insert 2014 end insert .
Termination of a prior action on the basis of the statute of
limitations does not constitute a claim that has been litigated to
finality on the merits.

(2) Any written, compromised settlement agreement begin delete which end delete begin insert that end insert
has been entered into between a plaintiff and a defendant where
the plaintiff was represented by an attorney who was admitted to
practice law in this state at the time of the settlement, and the
plaintiff signed the agreement.

(e) “Childhood sexual abuse” as used in this section includes
any act committed against the plaintiff that occurred when the
plaintiff was under begin delete the age of end delete 18 years begin insert of age end insert and that would have
been proscribed by Section 266j of the Penal Code; Section 285
of the Penal Code; paragraph (1) or (2) of subdivision (b), or of
subdivision (c), of Section 286 of the Penal Code; subdivision (a)
or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
subdivision (b), or of subdivision (c), of Section 288a of the Penal
Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code;
Section 647.6 of the Penal Code; or any prior laws of this state of
similar effect at the time the act was committed. Nothing in this
subdivision limits the availability of causes of action permitted
under subdivision (a), including causes of action against persons
or entities other than the alleged perpetrator of the abuse.

(f) Nothing in this section shall be construed to alter the
otherwise applicable burden of proof, as defined in Section 115
of the Evidence Code, that a plaintiff has in a civil action subject
to this section.

(g) Every plaintiff begin delete 26 end delete begin insert 43 end insert years of age or older at the time the
action is filed shall file certificates of merit as specified in
subdivision (h).

(h) Certificates of merit shall be executed by the attorney for
the plaintiff and by a licensed mental health practitioner selected
by the plaintiff declaring, respectively, as follows, setting forth
the facts begin delete which end delete begin insert that end insert support the declaration:

(1) That the attorney has reviewed the facts of the case, that the
attorney has consulted with at least one mental health practitioner
who is licensed to practice and practices in this state and who the
attorney reasonably believes is knowledgeable of the relevant facts
and issues involved in the particular action, and that the attorney
has concluded on the basis of that review and consultation that
there is reasonable and meritorious cause for the filing of the action.
The person consulted may not be a party to the litigation.

(2) That the mental health practitioner consulted is licensed to
practice and practices in this state and is not a party to the action,
that the practitioner is not treating and has not treated the plaintiff,
and that the practitioner has interviewed the plaintiff and is
knowledgeable of the relevant facts and issues involved in the
particular action, and has concluded, on the basis of his or her
knowledge of the facts and issues, that in his or her professional
opinion there is a reasonable basis to believe that the plaintiff had
been subject to childhood sexual abuse.

(3) That the attorney was unable to obtain the consultation
required by paragraph (1) because a statute of limitations would
impair the action and that the certificates required by paragraphs
(1) and (2) could not be obtained before the impairment of the
action. If a certificate is executed pursuant to this paragraph, the
certificates required by paragraphs (1) and (2) shall be filed within
60 days after filing the complaint.

(i) Where certificates are required pursuant to subdivision (g),
the attorney for the plaintiff shall execute a separate certificate of
merit for each defendant named in the complaint.

(j) In any action subject to subdivision (g), no defendant may
be served, and the duty to serve a defendant with process does not
attach, until the court has reviewed the certificates of merit filed
pursuant to subdivision (h) with respect to that defendant, and has
found, in camera, based solely on those certificates of merit, that
there is reasonable and meritorious cause for the filing of the action
against that defendant. At that time, the duty to serve that defendant
with process shall attach.

(k) A violation of this section may constitute unprofessional
conduct and may be the grounds for discipline against the attorney.

(l) The failure to file certificates in accordance with this section
shall be grounds for a demurrer pursuant to Section 430.10 or a
motion to strike pursuant to Section 435.

(m) In any action subject to subdivision (g), no defendant may
be named except by “Doe” designation in any pleadings or papers
filed in the action until there has been a showing of corroborative
fact as to the charging allegations against that defendant.

(n) At any time after the action is filed, the plaintiff may apply
to the court for permission to amend the complaint to substitute
the name of the defendant or defendants for the fictitious
designation, as follows:

(1) The application shall be accompanied by a certificate of
corroborative fact executed by the attorney for the plaintiff. The
certificate shall declare that the attorney has discovered one or
more facts corroborative of one or more of the charging allegations
against a defendant or defendants, and shall set forth in clear and
concise terms the nature and substance of the corroborative fact.
If the corroborative fact is evidenced by the statement of a witness
or the contents of a document, the certificate shall declare that the
attorney has personal knowledge of the statement of the witness
or of the contents of the document, and the identity and location
of the witness or document shall be included in the certificate. For
purposes of this section, a fact is corroborative of an allegation if
it confirms or supports the allegation. The opinion of any mental
health practitioner concerning the plaintiff shall not constitute a
corroborative fact for purposes of this section.

(2) Where the application to name a defendant is made prior to
that defendant’s appearance in the action, neither the application
nor the certificate of corroborative fact by the attorney shall be
served on the defendant or defendants, nor on any other party or
their counsel of record.

(3) Where the application to name a defendant is made after
that defendant’s appearance in the action, the application shall be
served on all parties and proof of service provided to the court,
but the certificate of corroborative fact by the attorney shall not
be served on any party or their counsel of record.

(o) The court shall review the application and the certificate of
corroborative fact in camera and, based solely on the certificate
and any reasonable inferences to be drawn from the certificate,
shall, if one or more facts corroborative of one or more of the
charging allegations against a defendant has been shown, order
that the complaint may be amended to substitute the name of the
defendant or defendants.

(p) The court shall keep under seal and confidential from the
public and all parties to the litigation, other than the plaintiff, any
and all certificates of corroborative fact filed pursuant to
subdivision (n).

(q) Upon the favorable conclusion of the litigation with respect
to any defendant for whom a certificate of merit was filed or for
whom a certificate of merit should have been filed pursuant to this
section, the court may, upon the motion of a party or upon the
court’s own motion, verify compliance with this section by
requiring the attorney for the plaintiff who was required by
subdivision (h) to execute the certificate to reveal the name,
address, and telephone number of the person or persons consulted
with pursuant to subdivision (h) that were relied upon by the
attorney in preparation of the certificate of merit. The name,
address, and telephone number shall be disclosed to the trial judge
in camera and in the absence of the moving party. If the court finds
there has been a failure to comply with this section, the court may
order a party, a party’s attorney, or both, to pay any reasonable
expenses, including attorney’s fees, incurred by the defendant for
whom a certificate of merit should have been filed.

(r) The amendments to this section enacted at the 1990 portion
of the 1989-90 Regular Session shall apply to any action
commenced on or after January 1, 1991, including any action
otherwise barred by the period of limitations in effect prior to
January 1, 1991, thereby reviving those causes of action which
had lapsed or technically expired under the law existing prior to
January 1, 1991.

(s) The Legislature declares that it is the intent of the Legislature,
in enacting the amendments to this section enacted at the 1994
portion of the 1993-94 Regular Session, that the express language
of revival added to this section by those amendments shall apply
to any action commenced on or after January 1, 1991.

(t) Nothing in the amendments to this section enacted at the
1998 portion of the 1997-98 Regular Session is intended to create
a new theory of liability.

(u) The amendments to subdivision (a) of this section, enacted
at the 1998 portion of the 1997-98 Regular Session, shall apply
to any action commenced on or after January 1, 1999, and to any
action filed prior to January 1, 1999, and still pending on that date,
including any action or causes of action which would have been
barred by the laws in effect prior to January 1, 1999. Nothing in
this subdivision is intended to revive actions or causes of action
as to which there has been a final adjudication prior to January 1,
1999.

begin delete

SECTION 1.  

Section 340.1 of the Code of Civil Procedure is
amended to read:

340.1.  

(a) In an action for recovery of damages suffered as a
result of childhood sexual abuse that was not barred by the law in
effect prior to January 1, 2014, there shall be no statute of
limitations and any of the following actions may be commenced
at any time:

(1) An action against any person or entity for directly or
vicariously committing an act of childhood sexual abuse.

(2) An action for liability against any person or entity who owed
a duty of care to the plaintiff, where a wrongful or negligent act
by that person or entity was a legal cause of the childhood sexual
abuse which resulted in injury to the plaintiff.

(3) An action for liability against any person or entity where an
intentional act by that person or entity was a legal cause of the
childhood sexual abuse which resulted in injury to the plaintiff.

(b) In an action for recovery of damages suffered as a result of
childhood sexual abuse that was barred by the law in effect prior
to January 1, 2014, the time for commencement of the action shall
be within 30 years of the date the plaintiff attains the age of
majority or within five years of the date the fact of the injury and
its causal connection to the sexual abuse is first communicated to
the plaintiff by a physician, psychologist, or clinical psychologist
licensed to practice and practicing within the state, whichever
period expires later, for any of the following actions:

(1) An action against any person or entity for directly or
vicariously committing an act of childhood sexual abuse.

(2) An action for liability against any person or entity who owed
a duty of care to the plaintiff, where a wrongful or negligent act
by that person or entity was a legal cause of the childhood sexual
abuse which resulted in injury to the plaintiff.

(3) An action for liability against any person or entity where an
intentional act by that person or entity was a legal cause of the
childhood sexual abuse which resulted in injury to the plaintiff.

(c) Any claim for damages that may not be timely commenced
under subdivision (a) or (b), as amended January 1, 2014, is revived
and a cause of action may be commenced within one year of
January 1, 2014. Nothing in this subdivision is intended to alter
the applicable statute of limitations for any claim described in
subdivision (a) or (b) that is not time barred by the amendments
taking effect on January 1, 2014.

(d) “Childhood sexual abuse” as used in this section includes
any act committed against the plaintiff that occurred when the
plaintiff was under 18 years of age and that would have been
proscribed by Section 266j of the Penal Code; Section 285 of the
Penal Code; paragraph (1) or (2) of subdivision (b), or of
subdivision (c), of Section 286 of the Penal Code; subdivision (a)
or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
subdivision (b), or subdivision (c), of Section 288a of the Penal
Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code;
Section 647.6 of the Penal Code; or any prior laws of this state of
similar effect at the time the act was committed.

(e) Nothing in this section shall be construed to alter the
otherwise applicable burden of proof, as defined in Section 115
of the Evidence Code, that a plaintiff has in a civil action subject
to this section.

(f) Nothing in this section is intended to create a new theory of
liability.

(g) Nothing in this section is intended to alter the decision in
Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201.

(h) Nothing in this section is intended to revive any action or
cause of action that has been litigated to finality on the merits in
any court of competent jurisdiction prior to January 1, 2014.

end delete