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 age of 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 ifbegin delete specified conditions are metend deletebegin insert the person or entity against whom the action is commenced 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.end insertbegin insert For a period of one year commencing January 1, 2003, existing law revived certain actions that would otherwise be barred solely because the applicable statute of limitations had expiredend insert.
begin deleteThis bill would instead require that an action for recovery of damages suffered as a result of childhood sexual abuse be commenced within 12 or 25 years, as applicable, of the date the plaintiff attains the age of majority, or within 5 years of the date the fact of the psychological injury or
illness occurring after the age of majority 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. end deleteThis bill would provide thatbegin delete theseend deletebegin insert theend insert time limits for commencement of an actionbegin insert for recovery of damages suffered as a result of childhood sexual abuseend insert 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 thatbegin insert
the plaintiff’s 26th birthday was before January 1, 2003, andend insert the plaintiff discovered the cause of his or her injury on or after January 1, 2004.
This bill wouldbegin delete alsoend delete 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.begin insert This bill would specify that this entitlement shall not apply to a cause of action revived pursuant to these provisions.end insert
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
begin insertSection 340.1 of the end insertbegin insertCode of Civil Procedureend insertbegin insert is
2amended to read:end insert
(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
P3 1the sexual abuse, whichever period expires later, for any of the
2following actions:
3(1) An action against any person for committing an act of
4childhood sexual abuse.
5(2) An action for liability against any person or entity who owed
6a duty of care to the plaintiff, where a
wrongful or negligent act
7by that person or entity was a legal cause of the childhood sexual
8abusebegin delete whichend deletebegin insert
thatend insert resulted in the injury to the plaintiff.
9(3) An action for liability against any person or entity where an
10intentional act by that person or entity was a legal cause of the
11childhood sexual abusebegin delete whichend deletebegin insert thatend insert resulted in the injury to the
12plaintiff.
13(b) (1) No action described in paragraph (2) or (3) of
14subdivision (a) may be commenced on or after the plaintiff’s 26th
15birthday.
16(2) This subdivision does not apply if the person or entity knew
17or had reason to know, or was otherwise on notice, of any unlawful
18sexual conduct by an employee, volunteer,
representative, or agent,
19and failed to take reasonable steps, and to implement reasonable
20safeguards, to avoid acts of unlawful sexual conduct in the future
21by that person, including, but not limited to, preventing or avoiding
22placement of that person in a function or environment in which
23contact with children is an inherent part of that function or
24environment. For purposes of this subdivision, providing or
25requiring counseling is not sufficient, in and of itself, to constitute
26a reasonable step or reasonable safeguard.
27(3) Notwithstanding any other provision of law, a plaintiff shall
28be entitled to conduct discovery before the court may rule on a
29motion challenging the sufficiency of the plaintiff’s showing under
30paragraph (2).
31(c) Notwithstanding any other provision of law, any claim for
32damages described in paragraph (2) or (3) of subdivision (a) that
33is permitted to be filed pursuant to paragraph (2) of subdivision
34(b) that would otherwise be barred as of January 1, 2003, solely
35because the applicable statute of limitations has or had expired, is
36revived, and, in that case, a cause of action may be commenced
37within one year of January 1, 2003. Nothing in this subdivision
38shall be construed to alter the applicable statute of limitations
39period of an action that is not time barred as of January 1, 2003.
P4 1(c) The time limits for commencement of actions described in
2subdivisions (a) and (b) shall be applied retroactively to any claim
3that has not been adjudicated to finality on the merits as of January
41, 2014. Notwithstanding any other provision of law, any cause
5of action for damages described in paragraph (2) or (3) of
6subdivision (a) that would otherwise be barred solely by the statute
7of limitations as of January 1, 2014, is revived, and, in that case,
8a cause of action may be commenced within one year of January
91, 2014, provided that the plaintiff’s 26th birthday was before
10January 1, 2003, and the plaintiff discovered the cause of his or
11her injuries on or after January 1, 2004. Paragraph (3) of
12subdivision (b) shall not apply to a cause of action revived pursuant
13to this subdivision.
14(d) Subdivision (c) does not apply to either of the following:
15(1) Any claim that has been litigated to finality on the merits in
16any court of competent jurisdiction prior to January 1,begin delete 2003end deletebegin insert 2014end insert.
17Termination of a prior action on the basis of the statute of
18limitations does not constitute a claim that has been litigated to
19finality on the merits.
20(2) Any written, compromised settlement agreementbegin delete whichend deletebegin insert thatend insert
21 has been entered into between a plaintiff and a defendant where
22the plaintiff was represented by an attorney who was admitted to
23practice law in this state at the
time of the settlement, and the
24plaintiff signed the agreement.
25(e) “Childhood sexual abuse” as used in this section includes
26any act committed against the plaintiff that occurred when the
27plaintiff was underbegin delete the age ofend delete 18 yearsbegin insert of ageend insert and that would have
28been proscribed by Section 266j of the Penal Code; Section 285
29of the Penal Code; paragraph (1) or (2) of subdivision (b), or of
30subdivision (c), of Section 286 of the Penal Code; subdivision (a)
31or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
32subdivision (b), or of subdivision (c), of Section 288a of the Penal
33Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code;
34Section 647.6 of the Penal Code; or any prior laws of this state of
35similar effect at the time the act was
committed. Nothing in this
36subdivision limits the availability of causes of action permitted
37under subdivision (a), including causes of action against persons
38or entities other than the alleged perpetrator of the abuse.
39(f) Nothing in this section shall be construed to alter the
40otherwise applicable burden of proof, as defined in Section 115
P5 1of the Evidence Code, that a plaintiff has in a civil action subject
2to this section.
3(g) Every plaintiff 26 years of age or older at the time the action
4is filed shall file certificates of merit as specified in subdivision
5(h).
6(h) Certificates of merit shall be executed by the attorney for
7the plaintiff and by a licensed mental health practitioner selected
8by the plaintiff declaring, respectively, as follows, setting forth
9the factsbegin delete whichend deletebegin insert
thatend insert support the declaration:
10(1) That the attorney has reviewed the facts of the case, that the
11attorney has consulted with at least one mental health practitioner
12who is licensed to practice and practices in this state and who the
13attorney reasonably believes is knowledgeable of the relevant facts
14and issues involved in the particular action, and that the attorney
15has concluded on the basis of that review and consultation that
16there is reasonable and meritorious cause for the filing of the action.
17The person consulted may not be a party to the litigation.
18(2) That the mental health practitioner consulted is licensed to
19practice and practices in this state and is not a party to the action,
20that the practitioner is not treating and has not treated the plaintiff,
21and that the practitioner has interviewed the plaintiff and is
22knowledgeable
of the relevant facts and issues involved in the
23particular action, and has concluded, on the basis of his or her
24knowledge of the facts and issues, that in his or her professional
25opinion there is a reasonable basis to believe that the plaintiff had
26been subject to childhood sexual abuse.
27(3) That the attorney was unable to obtain the consultation
28required by paragraph (1) because a statute of limitations would
29impair the action and that the certificates required by paragraphs
30(1) and (2) could not be obtained before the impairment of the
31action. If a certificate is executed pursuant to this paragraph, the
32certificates required by paragraphs (1) and (2) shall be filed within
3360 days after filing the complaint.
34(i) Where certificates are required pursuant to subdivision (g),
35the attorney for the plaintiff shall execute a separate certificate of
36merit for each defendant named in
the complaint.
37(j) In any action subject to subdivision (g), no defendant may
38be served, and the duty to serve a defendant with process does not
39attach, until the court has reviewed the certificates of merit filed
40pursuant to subdivision (h) with respect to that defendant, and has
P6 1found, in camera, based solely on those certificates of merit, that
2there is reasonable and meritorious cause for the filing of the action
3against that defendant. At that time, the duty to serve that defendant
4with process shall attach.
5(k) A violation of this section may constitute unprofessional
6conduct and may be the grounds for discipline against the attorney.
7(l) The failure to file certificates in accordance with this section
8shall be grounds for a demurrer pursuant to Section 430.10 or a
9motion to strike pursuant to Section
435.
10(m) In any action subject to subdivision (g), no defendant may
11be named except by “Doe” designation in any pleadings or papers
12filed in the action until there has been a showing of corroborative
13fact as to the charging allegations against that defendant.
14(n) At any time after the action is filed, the plaintiff may apply
15to the court for permission to amend the complaint to substitute
16the name of the defendant or defendants for the fictitious
17designation, as follows:
18(1) The application shall be accompanied by a certificate of
19corroborative fact executed by the attorney for the plaintiff. The
20certificate shall declare that the attorney has discovered one or
21more facts corroborative of one or more of the charging allegations
22against a defendant or defendants, and shall set forth in clear and
23concise terms the
nature and substance of the corroborative fact.
24If the corroborative fact is evidenced by the statement of a witness
25or the contents of a document, the certificate shall declare that the
26attorney has personal knowledge of the statement of the witness
27or of the contents of the document, and the identity and location
28of the witness or document shall be included in the certificate. For
29purposes of this section, a fact is corroborative of an allegation if
30it confirms or supports the allegation. The opinion of any mental
31health practitioner concerning the plaintiff shall not constitute a
32corroborative fact for purposes of this section.
33(2) Where the application to name a defendant is made prior to
34that defendant’s appearance in the action, neither the application
35nor the certificate of corroborative fact by the attorney shall be
36served on the defendant or defendants, nor on any other party or
37their counsel of record.
38(3) Where the application to name a defendant is made after
39that defendant’s appearance in the action, the application shall be
40served on all parties and proof of service provided to the court,
P7 1but the certificate of corroborative fact by the attorney shall not
2be served on any party or their counsel of record.
3(o) The court shall review the application and the certificate of
4corroborative fact in camera and, based solely on the certificate
5and any reasonable inferences to be drawn from the certificate,
6shall, if one or more facts corroborative of one or more of the
7charging allegations against a defendant has been shown, order
8that the complaint may be amended to substitute the name of the
9defendant or defendants.
10(p) The court shall keep under seal and confidential from the
11public and all parties to the litigation,
other than the plaintiff, any
12and all certificates of corroborative fact filed pursuant to
13subdivision (n).
14(q) Upon the favorable conclusion of the litigation with respect
15to any defendant for whom a certificate of merit was filed or for
16whom a certificate of merit should have been filed pursuant to this
17section, the court may, upon the motion of a party or upon the
18court’s own motion, verify compliance with this section by
19requiring the attorney for the plaintiff who was required by
20subdivision (h) to execute the certificate to reveal the name,
21address, and telephone number of the person or persons consulted
22with pursuant to subdivision (h) that were relied upon by the
23attorney in preparation of the certificate of merit. The name,
24address, and telephone number shall be disclosed to the trial judge
25in camera and in the absence of the moving party. If the court finds
26there has been a failure to comply with this section, the court may
27order a
party, a party’s attorney, or both, to pay any reasonable
28expenses, including attorney’s fees, incurred by the defendant for
29whom a certificate of merit should have been filed.
30(r) The amendments to this section enacted at the 1990 portion
31of the 1989-90 Regular Session shall apply to any action
32commenced on or after January 1, 1991, including any action
33otherwise barred by the period of limitations in effect prior to
34January 1, 1991, thereby reviving those causes of action which
35had lapsed or technically expired under the law existing prior to
36January 1, 1991.
37(s) The Legislature declares that it is the intent of the Legislature,
38in enacting the amendments to this section enacted at the 1994
39portion of the 1993-94 Regular Session, that the express language
P8 1of revival added to this section by those amendments shall apply
2to any action commenced on or after January 1, 1991.
3(t) Nothing in the amendments to this section enacted at the
41998 portion of the 1997-98 Regular Session is intended to create
5a new theory of liability.
6(u) The amendments to subdivision (a) of this section, enacted
7at the 1998 portion of the 1997-98 Regular Session, shall apply
8to any action commenced on or after January 1, 1999, and to any
9action filed prior to January 1, 1999, and still pending on that date,
10including any action or causes of action which would have been
11barred by the laws in effect prior to January 1, 1999. Nothing in
12this subdivision is intended to revive actions or causes of action
13as to which there has been a final adjudication prior to January 1,
141999.
Section 340.1 of the Code of Civil Procedure is
16amended to read:
(a) In an action for recovery of damages suffered as a
18result of childhood sexual abuse, the time for commencement of
19the action shall be as follows:
20(1) Within 25 years of the date the plaintiff attains the age of
21majority, or within five years of the date the fact of the
22psychological injury or illness occurring after the age of majority
23and its causal connection to the sexual abuse is first communicated
24to the plaintiff by a licensed mental health practitioner practicing
25within the state, whichever period expires later, for an action
26against any person for committing an act of childhood sexual abuse.
27(2) Within 12 years of the date the plaintiff attains the age of
28majority, or within five years of the date the fact of the
29psychological injury or illness occurring after the age of majority
30and its causal connection to the sexual abuse is first communicated
31to the plaintiff by a licensed mental health practitioner practicing
32within the state, whichever period expires later, for either of the
33following actions:
34(A) An action for liability against any person or entity who
35owed a duty of care to the plaintiff, where a wrongful or negligent
36act by that person or entity was a legal cause of the childhood
37sexual abuse that resulted in the injury to the plaintiff.
38(B) An action for liability against any person or entity where
39an intentional act by that person or entity was a
legal cause of the
40childhood sexual abuse that resulted in the injury to the plaintiff.
P9 1(b) (1) No action described in paragraph (2) of subdivision (a)
2may be commenced on or after the plaintiff’s
30th birthday.
3(2) This subdivision does not apply if the person or entity knew
4or had reason to know, or was otherwise on notice, of any unlawful
5
sexual conduct by an employee, volunteer, representative, or agent,
6and failed to take reasonable steps, and to implement reasonable
7safeguards, to avoid acts of unlawful sexual conduct in the future
8by that person, including, but not limited to, preventing or avoiding
9placement of that person in a function or environment in which
10contact with children is an inherent part of that function or
11environment. For purposes of this subdivision, providing or
12requiring counseling is not sufficient, in and of itself, to constitute
13a reasonable step or reasonable safeguard. Notwithstanding any
14other provision of law, a plaintiff shall be entitled to conduct
15discovery before the court may rule on a motion challenging the
16sufficiency of the plaintiff’s showing under this subparagraph.
17(c) The time limits for commencement of actions described in
18subdivisions
(a) and (b) shall be applied retroactively to any claim
19that has not been adjudicated to finality on the merits as of January
201, 2014. Notwithstanding any other provision of law, any cause
21of action for damages described in paragraph (2) of subdivision
22(a) that would otherwise be barred by the statute of limitations as
23of January 1, 2014, is revived, and, in that case, a cause of action
24may be commenced within one year of January 1, 2014, provided
25that the plaintiff discovered the cause of his or her injuries, as
26described in paragraph (2) of subdivision (a), on or after January
271, 2004.
28(d) Subdivision (c) does not apply to either of the following:
29(1) Any claim that has been litigated to finality on the merits in
30any court of competent jurisdiction prior to January 1, 2014.
31Termination
of a prior action on the basis of the statute of
32limitations does not constitute a claim that has been litigated to
33finality on the merits.
34(2) Any written, compromised settlement agreement that has
35been entered into between a plaintiff and a defendant where the
36plaintiff was represented by an attorney who was admitted to
37practice law in this state at the time of the settlement, and the
38plaintiff signed the agreement.
39(e) “Childhood sexual abuse” as used in this section includes
40any act committed against the plaintiff that occurred when the
P10 1plaintiff was under 18 years of age and that would have been
2proscribed by Section 266j of the Penal Code; Section 285 of the
3Penal Code; paragraph (1) or (2) of subdivision (b), or of
4subdivision (c), of Section 286 of the Penal Code;
subdivision (a)
5or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
6subdivision (b), or of subdivision (c), of Section 288a of the Penal
7Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code;
8Section 647.6 of the Penal Code; or any prior laws of this state of
9similar effect at the time the act was committed. Nothing in this
10subdivision limits the availability of causes of action permitted
11under subdivision (a), including causes of action against persons
12or entities other than the alleged perpetrator of the abuse.
13(f) Nothing in this section shall be construed to alter the
14otherwise applicable burden of proof, as defined in Section 115
15of the Evidence Code, that a plaintiff has in a civil action subject
16to this section.
17(g) Every plaintiff 30 years of
age or older at the time the action
18is filed shall file certificates of merit as specified in subdivision
19(h).
20(h) Certificates of merit shall be executed by the attorney for
21the plaintiff and by a licensed mental health practitioner selected
22by the plaintiff declaring, respectively, as follows, setting forth
23the facts that support the declaration:
24(1) That the attorney has reviewed the facts of the case, that the
25attorney has consulted with at least one mental health practitioner
26who is licensed to practice and practices in this state and who the
27attorney reasonably believes is knowledgeable of the relevant facts
28and issues involved in the particular action, and that the attorney
29has concluded on the basis of that review and consultation that
30there is reasonable and meritorious
cause for the filing of the action.
31The person consulted may not be a party to the litigation.
32(2) That the mental health practitioner consulted is licensed to
33practice and practices in this state and is not a party to the action,
34that the practitioner is not treating and has not treated the plaintiff,
35and that the practitioner has interviewed the plaintiff and is
36knowledgeable of the relevant facts and issues involved in the
37particular action, and has concluded, on the basis of his or her
38knowledge of the facts and issues, that in his or her professional
39opinion there is a reasonable basis to believe that the plaintiff had
40been subject to childhood sexual abuse.
P11 1(3) That the attorney was unable to obtain the consultation
2required by paragraph (1) because a statute of limitations would
3impair
the action and that the certificates required by paragraphs
4(1) and (2) could not be obtained before the impairment of the
5action. If a certificate is executed pursuant to this paragraph, the
6certificates required by paragraphs (1) and (2) shall be filed within
760 days after filing the complaint.
8(i) Where certificates are required pursuant to subdivision (g),
9the attorney for the plaintiff shall execute a separate certificate of
10merit for each defendant named in the complaint.
11(j) In any action subject to subdivision (g), no defendant may
12be served, and the duty to serve a defendant with process does not
13attach, until the court has reviewed the certificates of merit filed
14pursuant to subdivision (h) with respect to that defendant, and has
15found, in camera, based solely on those
certificates of merit, that
16there is reasonable and meritorious cause for the filing of the action
17against that defendant. At that time, the duty to serve that defendant
18with process shall attach.
19(k) A violation of this section may constitute unprofessional
20conduct and may be the grounds for discipline against the attorney.
21(l) The failure to file certificates in accordance with this section
22shall be grounds for a demurrer pursuant to Section 430.10 or a
23motion to strike pursuant to Section 435.
24(m) In any action subject to subdivision (g), no defendant may
25be named except by “Doe” designation in any pleadings or papers
26filed in the action until there has been a showing of corroborative
27fact as to the charging
allegations against that defendant.
28(n) At any time after the action is filed, the plaintiff may apply
29to the court for permission to amend the complaint to substitute
30the name of the defendant or defendants for the fictitious
31designation, as follows:
32(1) The application shall be accompanied by a certificate of
33corroborative fact executed by the attorney for the plaintiff. The
34certificate shall declare that the attorney has discovered one or
35more facts corroborative of one or more of the charging allegations
36against a defendant or defendants, and shall set forth in clear and
37concise terms the nature and substance of the corroborative fact.
38If the corroborative fact is evidenced by the statement of a witness
39or the contents of a document, the certificate shall declare that the
40attorney
has personal knowledge of the statement of the witness
P12 1or of the contents of the document, and the identity and location
2of the witness or document shall be included in the certificate. For
3purposes of this section, a fact is corroborative of an allegation if
4it confirms or supports the allegation. The opinion of any mental
5health practitioner concerning the plaintiff shall not constitute a
6corroborative fact for purposes of this section.
7(2) Where the application to name a defendant is made prior to
8that defendant’s appearance in the action, neither the application
9nor the certificate of corroborative fact by the attorney shall be
10served on the defendant or defendants, nor on any other party or
11their counsel of record.
12(3) Where the application to name a defendant is made after
13that
defendant’s appearance in the action, the application shall be
14served on all parties and proof of service provided to the court,
15but the certificate of corroborative fact by the attorney shall not
16be served on any party or their counsel of record.
17(o) The court shall review the application and the certificate of
18corroborative fact in camera and, based solely on the certificate
19and any reasonable inferences to be drawn from the certificate,
20shall, if one or more facts corroborative of one or more of the
21charging allegations against a defendant has been shown, order
22that the complaint may be amended to substitute the name of the
23defendant or defendants.
24(p) The court shall keep under seal and confidential from the
25public and all parties to the litigation, other than the plaintiff, any
26and
all certificates of corroborative fact filed pursuant to
27subdivision (n).
28(q) Upon the favorable conclusion of the litigation with respect
29to any defendant for whom a certificate of merit was filed or for
30whom a certificate of merit should have been filed pursuant to this
31section, the court may, upon the motion of a party or upon the
32court’s own motion, verify compliance with this section by
33requiring the attorney for the plaintiff who was required by
34subdivision (h) to execute the certificate to reveal the name,
35address, and telephone number of the person or persons consulted
36with pursuant to subdivision (h) that were relied upon by the
37attorney in preparation of the certificate of merit. The name,
38address, and telephone number shall be disclosed to the trial judge
39in camera and in the absence of the moving party. If the court finds
40there
has been a failure to comply with this section, the court may
P13 1order a party, a party’s attorney, or both, to pay any reasonable
2expenses, including attorney’s fees, incurred by the defendant for
3whom a certificate of merit should have been filed.
4(r) The amendments to this section enacted at the 1990 portion
5of the 1989-90 Regular Session shall apply to any action
6commenced on or after January 1, 1991, including any action
7otherwise barred by the period of limitations in effect prior to
8January 1, 1991, thereby reviving those causes of action which
9had lapsed or technically expired under the law existing prior to
10January 1, 1991.
11(s) The Legislature declares that it is the intent of the Legislature,
12in enacting the amendments to this section enacted at the 1994
13portion of the
1993-94 Regular Session, that the express language
14of revival added to this section by those amendments shall apply
15to any action commenced on or after January 1, 1991.
16(t) Nothing in the amendments to this section enacted at the
171998 portion of the 1997-98 Regular Session is intended to create
18a new theory of liability.
19(u) The amendments to subdivision (a) of this section, enacted
20at the 1998 portion of the 1997-98 Regular Session, shall apply
21to any action commenced on or after January 1, 1999, and to any
22action filed prior to January 1, 1999, and still pending on that date,
23
including any action or causes of action which would have been
24barred by the laws in effect prior to January 1, 1999. Nothing in
25this subdivision is intended to revive actions or causes of action
26as to which there has been a final adjudication prior to January 1,
271999.
O
95