BILL ANALYSIS Ó
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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