BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          SB 131 (Beall)
          As Amended May 2, 2013
          Hearing Date: May 7, 2013
          Fiscal: No
          Urgency: No
          NR


                                        SUBJECT
                                           
               Damages: childhood sexual abuse: statute of limitations

                                      DESCRIPTION  

          Existing law provides that an action for recovery of damages  
          suffered as a result of childhood sexual abuse shall be  
          commenced within eight years of the date the plaintiff attains  
          the age of majority or within three years of the date the  
          plaintiff discovers or reasonably should have discovered that  
          the psychological injury or illness occurring after the age of  
          majority was caused by sexual abuse, whichever occurs later. 

          This bill would instead provide that an action described above  
          shall be commenced within 25 years of the date the plaintiff  
          attains the age of majority or within five 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, whichever occurs later.  
          This bill would provide that these time limits for commencement  
          of an action shall be applied retroactively, and would revive,  
          for a period of one year, a cause of action 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.

          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 by an employee or agent,  
          and failed to take reasonable steps to avoid those acts in the  
                                                                (more)



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          future.

                                      BACKGROUND  

          Before 1990, claims of childhood sexual abuse were governed by a  
          one year statute of limitations.  (Code Civ. Proc. Sec. 340(3).)  
           However, if the cause of action accrued while the plaintiff was  
          a minor, the statute was tolled until he or she became an adult.  
          (Code Civ. Proc. Sec. 352(a).) Thus, any complaint had to be  
          filed within one year of the plaintiff's 18th birthday. 

          In 1990, the Legislature rewrote the statute of limitations for  
          cases involving adult trauma caused by childhood sexual abuse.  
          (SB 108 (Lockyer, Ch. 1578, Stats. 1990).) That law provides  
          that the time for commencing an action based on injuries  
          resulting from "childhood sexual abuse" shall be eight years  
          after the plaintiff reaches majority (i.e., age 26) or within  
          three years of the date of the plaintiff discovers or reasonably  
          should have discovered that the psychological injury or illness  
          occurring after the age of majority was caused by the abuse,  
          whichever occurs later.  As subsequently interpreted by the  
          courts, SB 108 changed the statute of limitations for actions  
          against the perpetrators, but did not change it for actions  
          against other responsible third parties. (See Debbie Reynolds  
          Prof. Rehearsal Studios v. Superior Court (1994) 25 Cal.App.4th  
          222; Tietge v. Western Province of the Services (1997) 55  
          Cal.App.4th 382.)

          In 1998, the Legislature responded to this interpretation and  
          enacted AB 1651 (Ortiz, Ch. 1021, Stats. 1998) to apply the  
          extended statute of limitations in actions against third  
          parties.  However, any action against any person or entity other  
          than the sexual abuser would have to be commenced before the  
          plaintiff's 26th birthday. (Code Civ. Proc. Sec. 340.1(b).) In  
          2002, SB 1779 (Burton and Escutia, Ch.149, Stats. 2002) was  
          enacted to extend the statute of limitations in cases against a  
          third party who was not the perpetrator of the sexual abuse  
          beyond age 26, when the third party knew or had reason to know  
          of complaints against an employee or agent for unlawful sexual  
          conduct and failed to take reasonable steps to avoid similar  
          unlawful conduct by that employee or agent in the future.  SB  
          1779 also created a one year window in which victims could bring  
          a claim against a third party, when that claim would have  
          otherwise been barred solely because the statute of limitations  
          had expired. 

                                                                      



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          Almost 1,000 cases were filed in California during the one year  
          window in 2003.    However, between 2005 and 2012, about 50  
          cases were filed by victims who were over the age of 26 in 2003,  
          but did not make a causal connection between childhood abuse and  
          problems as an adult until after 2003.  The Quarry brothers, who  
          filed suit in 2007, were among those who filed one of these  
          cases. The trial court dismissed the case based on their age in  
          2003 (over 26 years of age), stating that the brothers should  
          have brought their case within the one year window under SB  
          1779.  The First District Court of Appeal reversed the trial  
          court's decision, and held that the one year window only applied  
          to victims who were both over the age of 26 and had made the  
          required causal connection more than three years prior to  
          January 1, 2003. It held that victims like the Quarry brothers  
          were not barred as of January 1, 2003, and could avail  
          themselves of the option of filing a claim within three years  
          from discovery. 

          Ultimately the Quarry case and about 20 others were taken up by  
          the California Supreme Court.  (Quarry v. Doe (2009) 53 Cal.4th  
          945.)  The Court held that the Legislature failed to make its  
          retroactive intent in SB 1779 clear, and the rules of statutory  
          construction required that when the Legislature amends a statute  
          of limitations, that amendment is presumed to be prospective,  
          and is retroactive only if the Legislature expressly provides  
          that it is intended to be retroactive and revive previously  
          time-barred claims. The majority found the language of SB 1779  
          did not satisfy that rule of construction, and must be  
          interpreted prospectively, or limited to the one year window.   
          The dissent disagreed, and invited the Legislature to fix the  
          problem.

          Accordingly, this bill would extend the statute of limitations  
          to the later of 43 years of age or five years from the day a  
          mental health practitioner communicates the causal connection  
          between the injury occurring as an adult and the sex abuse  
          experienced as a child.  This bill would apply the above time  
          limits retroactively, and create a one year window in which  
          victims who are over the age of 43 but made the required causal  
          connection after 2004, to bring a claim.  This bill would also  
          clarify pleading standards in these cases.

                                CHANGES TO EXISTING LAW
           
           Existing law  generally provides that the time for commencing a  
          civil action for damages shall be within two years of the injury  
                                                                      



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          or death caused by the wrongful act or neglect of another.   
          (Code Civ. Pro. Sec. 340.)  

           Existing law  provides that the time for commencing an action  
          based on injuries resulting from childhood sexual abuse, as  
          defined, shall be eight years after the plaintiff reaches  
          majority (i.e., 26 years of age) or within three years of the  
          date the plaintiff discovers or reasonably should have  
          discovered that the psychological injury or illness occurring  
          after the age of majority was caused by the abuse, whichever  
          occurs later.  (Code Civ. Pro. Sec. 340.1.)
          
           Existing law  provides that in civil actions, as described above,  
          against persons or entities other than the perpetrator, whose  
          intentional, negligent, or wrongful act was the legal cause of  
          the sex abuse, the plaintiff must show that the person or entity  
          knew or had reason to know, or was otherwise on notice, of  
          unlawful sexual conduct of an employee or agent, and failed to  
          take reasonable steps, as specified, to avoid acts of unlawful  
          sexual conduct in the future.  (Code Civ. Pro. Sec. 340.1.)

           This bill  would instead provide that the time for commencing an  
          action based on injuries resulting from childhood sexual abuse,  
          as defined, shall be 25 years after the plaintiff reaches  
          majority (i.e., 43 years of age) or within five years of the  
          date the injury and its causal connection to the sexual abuse if  
          first communicated to the plaintiff by a licensed mental health  
          practitioner practicing within the state, whichever occurs  
          later.

           This bill  would provide that a plaintiff shall be entitled to  
          conduct discovery before the court may rule on a motion  
          challenging the sufficiency of whether a plaintiff showed that  
          the defendant knew, had reason to know, or was otherwise on  
          notice of the unlawful sexual conduct of an employee or agent,  
          as specified. 

           This bill  would retroactively apply the time limits above to any  
          claim that has not been adjudicated to finality on the merits as  
          of January 1, 2014.  

           This bill  would revive any cause of action that was dismissed by  
          a court because the applicable statute of limitation had  
          expired, provided that the plaintiff discovered his or her  
          injuries after January 1, 2004, as specified.  

                                                                      



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                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author: 

            Over the last 27 years the California Legislature has come to  
            have a better understanding of the insidious and latent nature  
            of the injuries suffered by a child who has been sexually  
            abused and the reasons why victims of childhood sex abuse  
            often wait years before reporting the abuse to law enforcement  
            or otherwise.  California Code of Civil Procedure Section  
            340.1, a remedial statute intended to provide redress the  
            child sex abuse victims, has been amended no less than five  
            times since its original enactment in 1986, consistent with  
            this evolving knowledge of the latent effects of the original  
            abuse. 

           2.Revive time-barred claims

           This bill would extend the statute of limitations for bringing  
          an action based on childhood sex abuse to 43 years of age, and  
          also allow a victim to bring a action within five years from the  
          day a mental health practitioner communicates the causal  
          connection between the injury occuring as an adult and the  
          sexual abuse experienced as a child, whichever occurs later.   
          This bill would apply these time limits retroactively, and  
          create a one year window in which victims who are over the age  
          of 43 but made the required causal connection after 2004, may  
          bring a claim.  This one year window should allow individuals,  
          like the Quarry brothers, who are over the maximum age allowed  
          by the statute of limitations, but who made the causal  
          connection after the one year window created by SB 1779 (Burton  
          and Escutia, Ch. 149, Stats. 2002), to bring a case against an  
          abuser or third party (see Background). 

          It should be noted that the revival of actions against  
          perpetrators or third parties only assures that a claim would be  
          heard on its merits.  Any other applicable defense would not be  
          affected, and plaintiffs would still have to prove all elements  
          of their case.

                a.     Authority of the Legislature to apply laws  
                 retroactively and revive claims
                
               While the Legislature is authorized to revive causes of  
                                                                      



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               action, the policy rationale for statutes of limitation is  
               "to promote justice by preventing surprises through the  
               revival of claims that have been allowed to slumber until  
               evidence has been lost, memories have faded, and witnesses  
               have disappeared.  The theory is that even if one has a  
               just claim it is unjust not to put the adversary on notice  
               to defend within the period of limitation and the right to  
               be free of stale claims in time comes to prevail over the  
               right to prosecute them." (3 Witkin, Calif. Procedure,  
               Actions (4th ed. 1996) 408.)                              

               Yet, courts have acknowledged that "the need for repose is  
               not so overarching that the Legislature cannot by express  
               legislative provision allow certain actions to be brought  
               at any time, and it has occasionally done so." (Duty v.  
               Abex Corp.  (1989) 214 Cal.App.3rd 742, 749, citing Code of  
               Civil Procedure Section 348, which states: "To actions  
               brought to recover money or other property deposited with  
               any [financial institution] . . . there is no limitation.")  
                Thus, the final inquiry should be whether the Legislature  
               believes that there are sufficient public policy reasons to  
               support reviving any otherwise barred claims under this  
               bill, and whether such an extension would maintain the  
               protections afforded by the statute of limitations, i.e.,  
               balancing the interests of the victims with the defendants'  
               right to defend. 

                b.     Concerns raised by retroactive application and claim  
                 revival
                  
               Current law places the statute of limitations for civil  
               suits arising out of child sex abuse at eight years passed  
               the age of majority or within three years of making the  
               appropriate causal connection.  Thus, these victims have  
               until at least age 26 to file a complaint under existing  
               law.  While this may not afford all victims enough time to  
               emotionally and psychologically prepare to publicly come  
               forward, extending the statute of limitations until victims  
               are 43 years of age arguably allows victims who have made  
               the necessary causal connection to wait a signiciant amount  
               of time before bringing a claim. During this time, an  
               abuser is not exposed and countless more victims may be  
               subject to abuse. Accordingly, in addition to ensuring that  
               evidence does not become stale, and that witnesses are  
               available, a statute of limitations is an essential tool in  
               protecting current and future victims from abuse.  
                                                                      



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               Further, the opposition argues that many private entities  
               acted in reliance on SB 1779 (Burton and Escutia, Ch. 149,  
               Stats. 2002), which created a one year window in which  
               victims of child sex abuse could bring claims.  The  
               Sacramento Country Day School writes that this bill would  
               "break faith with assurances given by the Legislature ten  
               years ago when it enacted SB 1779 (Burton), a one-time, one  
               year lifting of the statute of limitations for all of 2003  
               that allowed any victim of sexual abuse-regardless of how  
               long ago it occurred-a second chance to file a lawsuit." 

               The California Council of Nonprofit Organizations (CCNO)  
               notes that "these claims resulted in historic settlements,  
               in which more than $1.2 billion dollars was paid to these  
               victims.  These settlements would not have been made  
               possible without the defendants' reliance on the implied  
               promise that the pool of claimants represented the total of  
               all latent claims.  Insurance policies were surrendered  
               back to carriers, property was mortgaged or sold, and loans  
               were incurred to fund these settlements.  Retroactively  
               re-opening these claims subjects these defendants to double  
               jeopardy and violates the promise of SB 1779 that the  
               window for such latent claims would be closed at the end of  
               2003."

           3.Fact of the injury communicated by a mental health  
            practitioner
           
          Existing law employs a delayed discovery provision, which  
          authorizes a victim to bring an action within three years from  
          discovering the causal connection between the psychological  
          illness he or she has suffered as an adult and the sexual abuse  
          experienced as a child.  Practically speaking, this allows  
          persons who make the connection between the abuse and injury  
          much later in life, to bring a claim within a reasonable period  
          of time.  

          This bill would instead provide that a person may bring a claim  
          within five 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.  Thus, this bill would create a "standardized"  
          approach, where the time period for delayed discovery would be  
          triggered by a specific event involving a third person, instead  
          of at the time a victim achieves a subjective awareness.  
                                                                      



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          The CCNO argues that the requirement that the injury be  
          communicated to the victim by a mental health practitioner  
          creates avenues for abuse. 

            Ultimately, [this requirement] could result in the 25-year  
            limitation period being rendered meaningless, since it puts  
            unfettered, unilateral control of "discovery" in the hands of  
            the plaintiff.  Under the existing standard, there is both a  
            subjective and objective component - knew or should have  
            known.  Under this new iteration, even if the plaintiff was  
            100 percent aware and certain of the existence of injury and  
            connection with the childhood abuse, he or she could  
            nevertheless opt to extend the statute indefinitely by merely  
            refusing to enter therapy with a mental health practitioner -  
            thereby foreclosing the "first communication" of the  
            connection by the therapist.  And particularly troubling is  
            the fact that this loophole could be taken advantage of by a  
            plaintiff, permitting him or her strategically wait until  
            witnesses are infirm or dead, and documents have surely been  
            discarded, thereby maximizing the chances that a defendant  
            will be unable to effectively defend against the claim.

          The author instead argues that requiring a mental health  
          professional to communicate the connection between abuse and  
          injury is necessary because, "this avoids the concern that a  
          child sex abuse victim can just claim that they have only now  
          made a causal connection if that is not the case, and it avoids  
          a defense argument that any understanding constitutes a 'causal  
          connection.'"
           
          4.Knew or had reason to know
           
          Under existing law, victim plaintiffs making a claim against a  
          third party (i.e., employer) must show that the third party  
          "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."
           
          The author claims that this requirement has, in effect, resulted  
          in an onerously high pleading standard for plaintiffs.  The  
                                                                      



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          author argues that, because relevant evidence as to this element  
          is typically found in an employer's records, in most cases  
          plaintiffs cannot plead facts sufficient to show that the  
          employer "was on notice" prior to discovery being conducted.   
          Accordingly, this bill would allow a plaintiff 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 by an employee or agent.
             
          5.Maintains status quo as to public entities
                 
           Under existing law, states are generally immune from lawsuits.   
          The Eleventh Amendment initially only protected states from  
          being sued in federal court by citizens of another state. In  
          Hans v. Louisiana (1890) 134 U.S. 1, the Supreme Court ruled  
          that a citizen cannot sue their own state either, based on  
          principles of state sovereign immunity and federalism. Then, in  
          Alden v. Me. (1999) 527 U.S. 706, the Court extended sovereign  
          immunity further, and prohibited private suits against states in  
          state court as well. 

          Accordingly, citizens generally cannot sue states, state  
          entities, or state officials in their official capacities,  
          however citizens may sue state officials as individuals. This  
          doctrine of state sovereign immunity is limited by a handful of  
          exceptions: (1) a state can be sued if the state consents to the  
          suit; (2) Congress (under the 14th Amendment) can make a state  
          subject to money damages if the state violates the civil rights  
          of individuals; and (3) the federal government and the states  
          may waive their immunity in certain cases, such as tort cases.  

          The State of California opened itself up to certain claims  
          through the Government Torts Claim Act in 1963 (the Act), but  
          the State does not have to respond to suits which are not  
          properly filed. (Gov. Code Sec. 810 et seq.) Under the Act, with  
          very limited exceptions, no lawsuit for money damages may be  
          brought against a governmental entity unless a written claim has  
          been properly filed within a six-month time limit.  SB 640  
          (Simitian, Ch. 383, Stats. 2008) provided that child sex abuse  
          claims are not subject to the Act.  That bill was applied  
          prospectively, thereby allowing child sex abuse claims against  
          local public entities arising out of conduct occurring on or  
          after January 1, 2009, to not be limited by the six-month time  
          period. 

                                                                      



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          This bill would not carve out any additional exceptions to  
          sovereign immunity, and would thus, maintain the status quo.   
          Accordingly, victims who were abused by a public employee (such  
          as a public school teacher or another employee of the State of  
          California) would, in most cases, be limited to suing the actual  
          abuser, because state entities are generally immune from suit.   
          Opponents to this bill argue that it fails to protect children  
                                                     who attend public schools and discriminates against private  
          employers. Sea Crest School in Half Moon Bay writes, "we believe  
          that SB 131 would be a bad law because it discriminates against  
          the overwhelming majority of sex abuse victims since most K-12  
          students attend public schools.  It discriminates against  
          private employers, and it breaks faith with previous legislative  
          efforts to change the statute of limitations and does nothing to  
          prevent abuse, enhance criminal penalties, or extend the  
          criminal statute of limitations against actual perpetrators of  
          abuse."

          The CCNO echoes this sentiment and writes, "If the goal of SB  
          131 was to provide compensation for victims, then the bill would  
          recognize and provide redress to all victims equally.  The  
          retroactive provisions of SB 131 exclude claims of victims of  
          public schools and of state and local public agencies.  The bill  
          seeks to find deep pocket defendants consisting of private  
          institutions while adopting the political expediency of  
          abandoning victims of public institutions."

           6. Author's amendment
           
          The author offers the following clarifying amendment. 

             On page two, in line nine, after "injury" insert "or illness  
             occurring after the age of majority"


           Support  :  California Coalition Against Sexual Assault;  
          California Police Chiefs; California Protective Parents  
          Association; Child Abuse Listening Mediation, Inc.; College  
          Democrats at Pacific Union College; Consumer Attorneys of  
          California; Crime Victims United; Lawyers Against the Sex Abuse  
          of Children; National Partnership to End Interpersonal Violence  
          Across the Lifespan; National Safe Child Coalition; Waste Less  
          Living, Inc.; 13 individuals

           Opposition  :  Almaden Country School; Alverno High School;  
          Archdiocese of Los Angeles, Department of Catholic Schools;  
                                                                      



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          Berkeley Hall School; California Association of Joint Power  
          Authorities; California Association of Private School  
          Organizations; California Catholic Conference; California  
          Council of Nonprofit Organizations; California State Alliance of  
          YMCAs; Church and State Council; Clairbourn School; Crestview  
          Preparatory School; Echo Horizon School; Flintridge Sacred Heart  
          Academy; Konocti Christian Academy; Los Encinos School; Mirman  
          School; New Community Jewish High School; North American  
          Religious Liberty Association;  Pacific Union Conference of  
          Seventh Day Adventist Church; PS1 Pluralistic School; Rolling  
          Hills Preparatory School; Sacramento Country Day School; Sea  
          Crest School; St. Mathew's Parish School; Stoneybrooke Christian  
          Schools; Viewpoint School; Village School; Webb Schools; Wesley  
          School; Westmark School; Wildwood School; one individual

                                           
                                       HISTORY
           
           Source  :  National Center for Victims of Crime

           Related Pending Legislation  : None Known 

           Prior Legislation  :

          AB 1628 (Beall, 2012) would have extended the statute of  
          limitations in civil cases involving child sex abuse to 35 years  
          of age, prohibited confidential settlements, and imposed new  
          duties on private entities.  This bill died in the Senate  
          Appropriations Committee. 

          SB 640 (Simitian, Chapter 383, Statutes of 2008) see Comment 5.

          SB 1779 (Burton and Escutia, Chapter 149, Statutes of 2002) see  
          Background.

          AB 1651 (Ortiz, Chapter 1021, Statutes of 1998) see Background.

          SB 108 (Lockyer, Chapter 1578, Statutes of 1990) see Background.

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