SB 924, 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 if specified conditions are met.
This bill would instead require that an action for recovery of damages suffered as a result of childhood sexual abuse be commenced within 22 years of the date the plaintiff attains the age of majority, or withinbegin delete 5end deletebegin insert
3end insert 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.begin insert The bill would make conforming changes.end insert
This bill would also provide that a party may 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 acts in the future.
end deleteVote: 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 withinbegin delete eightend deletebegin insert 22end insert years of the date the plaintiff
6attains the age of majority or within three years of the date the
7plaintiff discovers or reasonably should have discovered that
8psychological injury or illness occurring after the age of majority
9was caused by the sexual abuse, whichever period expires later,
10for any of the following actions:
11(1) An action against any person for committing an act of
12
childhood sexual abuse.
13(2) An action for liability against any person or entity who owed
14a duty of care to the plaintiff, where a wrongful or negligent act
15by that person or entity was a legal cause of the childhood sexual
16abusebegin delete whichend deletebegin insert thatend insert resulted in the injury to the plaintiff.
17(3) An action for liability against any person or entity where an
18intentional act by that person or entity was a legal cause of the
19childhood sexual abusebegin delete whichend deletebegin insert thatend insert resulted in the injury to the
20plaintiff.
21(b) (1) No action described in paragraph (2) or (3) of
22subdivision (a) may be commenced on or after the plaintiff’s begin delete26thend delete
23begin insert 40thend insert
birthday.
24(2) This subdivision does not apply if the person or entity knew
25or had reason to know, or was otherwise on notice, of any unlawful
26sexual conduct by an employee, volunteer, representative, or agent,
27and failed to take reasonable steps, and to implement reasonable
28safeguards, to avoid acts of unlawful sexual conduct in the future
29by that person, including, but not limited to, preventing or avoiding
30placement of that person in a function or environment in which
31contact with children is an inherent part of that function or
32environment. For purposes of this subdivision, providing or
P3 1requiring counseling is not sufficient, in and of itself, to constitute
2a reasonable step or reasonable safeguard.
3(c) Notwithstanding any other provision of law, any claim for
4damages described in paragraph (2) or (3) of subdivision (a) that
5is permitted to be filed pursuant
to paragraph (2) of subdivision
6(b) that would otherwise be barred as of January 1, 2003, solely
7because the applicable statute of limitations has or had expired, is
8revived, and, in that case, a cause of action may be commenced
9within one year of January 1, 2003. Nothing in this subdivision
10shall be construed to alter the applicable statute of limitations
11period of an action that is not time barred as of January 1, 2003.
12(d) Subdivision (c) does not apply to either of the following:
13(1) Any claim that has been litigated to finality on the merits in
14any court of competent jurisdiction prior to January 1, 2003.
15Termination of a prior action on the basis of the statute of
16limitations does not constitute a claim that has been litigated to
17finality on the merits.
18(2) Any written, compromised settlement agreementbegin delete whichend deletebegin insert
thatend insert
19 has been entered into between a plaintiff and a defendant where
20the plaintiff was represented by an attorney who was admitted to
21practice law in this state at the time of the settlement, and the
22plaintiff signed the agreement.
23(e) “Childhood sexual abuse” as used in this section includes
24any act committed against the plaintiff that occurred when the
25plaintiff was underbegin delete the age ofend delete 18 yearsbegin insert of ageend insert and that would have
26been proscribed by Section 266j of the Penal Code; Section 285
27of the Penal Code; paragraph (1) or (2) of subdivision (b), or of
28subdivision (c), of Section 286 of the Penal Code; subdivision (a)
29or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
30subdivision (b), or of subdivision
(c), of Section 288a of the Penal
31Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code;
32Section 647.6 of the Penal Code; or any prior laws of this state of
33similar effect at the time the act was committed. Nothing in this
34subdivision limits the availability of causes of action permitted
35under subdivision (a), including causes of action against persons
36or entities other than the alleged perpetrator of the abuse.
37(f) Nothing in this section shall be construed to alter the
38otherwise applicable burden of proof, as defined in Section 115
39of the Evidence Code, that a plaintiff has in a civil action subject
40to this section.
P4 1(g) Every plaintiff begin delete26end deletebegin insert 40end insert years of age or older at the time
the
2action is filed shall file certificates of merit as specified in
3subdivision (h).
4(h) Certificates of merit shall be executed by the attorney for
5the plaintiff and by a licensed mental health practitioner selected
6by the plaintiff declaring, respectively, as follows, setting forth
7the factsbegin delete whichend deletebegin insert
thatend insert support the declaration:
8(1) That the attorney has reviewed the facts of the case, that the
9attorney has consulted with at least one mental health practitioner
10who is licensed to practice and practices in this state and who the
11attorney reasonably believes is knowledgeable of the relevant facts
12and issues involved in the particular action, and that the attorney
13has concluded on the basis of that review and consultation that
14there is reasonable and meritorious cause for the filing of the action.
15The person consulted may not be a party to the litigation.
16(2) That the mental health practitioner consulted is licensed to
17practice and practices in this state and is not a party to the action,
18that the practitioner is not treating and has not treated the plaintiff,
19and that the practitioner has interviewed the plaintiff and is
20knowledgeable
of the relevant facts and issues involved in the
21particular action, and has concluded, on the basis of his or her
22knowledge of the facts and issues, that in his or her professional
23opinion there is a reasonable basis to believe that the plaintiff had
24been subject to childhood sexual abuse.
25(3) That the attorney was unable to obtain the consultation
26required by paragraph (1) because a statute of limitations would
27impair the action and that the certificates required by paragraphs
28(1) and (2) could not be obtained before the impairment of the
29action. If a certificate is executed pursuant to this paragraph, the
30certificates required by paragraphs (1) and (2) shall be filed within
3160 days after filing the complaint.
32(i) Where certificates are required pursuant to subdivision (g),
33the attorney for the plaintiff shall execute a separate certificate of
34merit for each defendant named in
the complaint.
35(j) In any action subject to subdivision (g), no defendant may
36be served, and the duty to serve a defendant with process does not
37attach, until the court has reviewed the certificates of merit filed
38pursuant to subdivision (h) with respect to that defendant, and has
39found, in camera, based solely on those certificates of merit, that
40there is reasonable and meritorious cause for the filing of the action
P5 1against that defendant. At that time, the duty to serve that defendant
2with process shall attach.
3(k) A violation of this section may constitute unprofessional
4conduct and may be the grounds for discipline against the attorney.
5(l) The failure to file certificates in accordance with this section
6shall be grounds for a demurrer pursuant to Section 430.10 or a
7motion to strike pursuant to Section
435.
8(m) In any action subject to subdivision (g), no defendant may
9be named except by “Doe” designation in any pleadings or papers
10filed in the action until there has been a showing of corroborative
11fact as to the charging allegations against that defendant.
12(n) At any time after the action is filed, the plaintiff may apply
13to the court for permission to amend the complaint to substitute
14the name of the defendant or defendants for the fictitious
15designation, as follows:
16(1) The application shall be accompanied by a certificate of
17corroborative fact executed by the attorney for the plaintiff. The
18certificate shall declare that the attorney has discovered one or
19more facts corroborative of one or more of the charging allegations
20against a defendant or defendants, and shall set forth in clear and
21concise terms the
nature and substance of the corroborative fact.
22If the corroborative fact is evidenced by the statement of a witness
23or the contents of a document, the certificate shall declare that the
24attorney has personal knowledge of the statement of the witness
25or of the contents of the document, and the identity and location
26of the witness or document shall be included in the certificate. For
27purposes of this section, a fact is corroborative of an allegation if
28it confirms or supports the allegation. The opinion of any mental
29health practitioner concerning the plaintiff shall not constitute a
30corroborative fact for purposes of this section.
31(2) Where the application to name a defendant is made prior to
32that defendant’s appearance in the action, neither the application
33nor the certificate of corroborative fact by the attorney shall be
34served on the defendant or defendants, nor on any other party or
35their counsel of record.
36(3) Where the application to name a defendant is made after
37that defendant’s appearance in the action, the application shall be
38served on all parties and proof of service provided to the court,
39but the certificate of corroborative fact by the attorney shall not
40be served on any party or their counsel of record.
P6 1(o) The court shall review the application and the certificate of
2corroborative fact in camera and, based solely on the certificate
3and any reasonable inferences to be drawn from the certificate,
4shall, if one or more facts corroborative of one or more of the
5charging allegations against a defendant has been shown, order
6that the complaint may be amended to substitute the name of the
7defendant or defendants.
8(p) The court shall keep under seal and confidential from the
9public and all parties to the litigation,
other than the plaintiff, any
10and all certificates of corroborative fact filed pursuant to
11subdivision (n).
12(q) Upon the favorable conclusion of the litigation with respect
13to any defendant for whom a certificate of merit was filed or for
14whom a certificate of merit should have been filed pursuant to this
15section, the court may, upon the motion of a party or upon the
16court’s own motion, verify compliance with this section by
17requiring the attorney for the plaintiff who was required by
18subdivision (h) to execute the certificate to reveal the name,
19address, and telephone number of the person or persons consulted
20with pursuant to subdivision (h) that were relied upon by the
21attorney in preparation of the certificate of merit. The name,
22address, and telephone number shall be disclosed to the trial judge
23in camera and in the absence of the moving party. If the court finds
24there has been a failure to comply with this section, the court may
25order a
party, a party’s attorney, or both, to pay any reasonable
26expenses, including attorney’s fees, incurred by the defendant for
27whom a certificate of merit should have been filed.
28(r) The amendments to this section enacted at the 1990 portion
29of the 1989-90 Regular Session shall apply to any action
30commenced on or after January 1, 1991, including any action
31otherwise barred by the period of limitations in effect prior to
32January 1, 1991, thereby reviving those causes of action which
33had lapsed or technically expired under the law existing prior to
34January 1, 1991.
35(s) The Legislature declares that it is the intent of the Legislature,
36in enacting the amendments to this section enacted at the 1994
37portion of the 1993-94 Regular Session, that the express language
38of revival added to this section by those amendments shall apply
39to any action commenced on or after January 1, 1991.
P7 1(t) Nothing in the amendments to this section enacted at the
21998 portion of the 1997-98 Regular Session is intended to create
3a new theory of liability.
4(u) The amendments to subdivision (a) of this section, enacted
5at the 1998 portion of the 1997-98 Regular Session, shall apply
6to any action commenced on or after January 1, 1999, and to any
7action filed prior to January 1, 1999, and still pending on that date,
8including any action or causes of action which would have been
9barred by the laws in effect prior to January 1, 1999. Nothing in
10this subdivision is intended to revive actions or causes of action
11as to which there has been a final adjudication prior to January 1,
121999.
Section 340.1 of the Code of Civil Procedure is
14amended to read:
(a) In an action for recovery of damages suffered as a
16result of childhood sexual abuse, the time for commencement of
17the action shall be as follows:
18(1) Within 22 years of the date the plaintiff attains the age of
19majority, or within five years of the date the fact of the
20psychological injury or illness occurring after the age of majority
21and its causal connection to the sexual abuse is first communicated
22to the plaintiff by a licensed mental health practitioner practicing
23within the state, whichever period expires later, for an action
24against any person for committing an act of childhood sexual abuse.
25(2) Within 22 years of the date the plaintiff attains the age of
26majority, or within five years of the date the fact of the
27psychological injury or illness occurring after the age of majority
28and its causal connection to the sexual abuse is first communicated
29to the plaintiff by a licensed mental health practitioner practicing
30within the state, whichever period expires later, for either of the
31following actions:
32(A) An action for liability against any person or entity who
33owed a duty of care to the plaintiff, where a wrongful or negligent
34act by that person or entity was a legal cause of the childhood
35sexual abuse that resulted in the injury to the plaintiff.
36(B) An action for liability against any person or entity where
37an intentional act by that person or entity was a legal cause of the
38childhood sexual abuse that resulted in the injury to the plaintiff.
39(b) (1) No action described in paragraph (2) of subdivision (a)
40may be commenced on or after the plaintiff’s 40th birthday.
P8 1(2) This subdivision does not apply if the person or entity knew
2or had reason to know, or was otherwise on notice, of any unlawful
3sexual conduct by an employee, volunteer, representative, or agent,
4and failed to take reasonable steps, and to implement reasonable
5safeguards, to avoid acts of unlawful sexual conduct in the future
6by that person, including, but not limited to, preventing or avoiding
7placement of that person in a function or environment in which
8contact with children is an inherent part of that function or
9environment. For purposes of this subdivision, providing or
10requiring counseling is not sufficient, in and of itself, to constitute
11a reasonable step or reasonable safeguard.
Notwithstanding any
12other provision of law, a party may conduct discovery before the
13court may rule on a motion challenging the sufficiency of the
14plaintiff’s showing under this subparagraph.
15(c) Notwithstanding any other provision of law, any claim for
16damages described in paragraph (2) or (3) of subdivision (a) that
17is permitted to be filed pursuant to paragraph (2) of subdivision
18(b) that would otherwise be barred as of January 1, 2003, solely
19because the applicable statute of limitations has or had expired, is
20revived, and, in that case, a cause of action may be commenced
21within one year of January 1, 2003. Nothing in this subdivision
22shall be construed to alter the applicable statute of limitations
23period of an action that is not time barred as of January 1, 2003.
24(d) Subdivision (c) does not apply to either of the following:
25(1) Any claim that has been litigated to finality on the merits in
26any court of competent jurisdiction prior to January 1, 2003.
27Termination of a prior action on the basis of the statute of
28limitations does not constitute a claim that has been litigated to
29finality on the merits.
30(2) Any written, compromised settlement agreement that has
31been entered into between a plaintiff and a defendant where the
32plaintiff was represented by an attorney who was admitted to
33practice law in this state at the time of the settlement, and the
34plaintiff signed the agreement.
35(e) “Childhood sexual abuse” as used in this section includes
36any act committed against the plaintiff that occurred when the
37plaintiff was under 18 years of age and that would have been
38proscribed by Section 266j of the Penal Code; Section 285 of the
39Penal Code; paragraph (1) or (2) of subdivision (b), or of
40subdivision (c), of Section 286 of the Penal Code; subdivision (a)
P9 1or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
2subdivision (b), or of subdivision (c), of Section 288a of the Penal
3Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code;
4Section 647.6 of the Penal Code; or any prior laws of this state of
5similar effect at the time the act was committed. Nothing in this
6subdivision limits the availability of causes of action permitted
7under subdivision (a), including causes of action against persons
8or entities other than the alleged perpetrator of the abuse.
9(f) Nothing in this
section shall be construed to alter the
10otherwise applicable burden of proof, as defined in Section 115
11of the Evidence Code, that a plaintiff has in a civil action subject
12to this section.
13(g) Every plaintiff 40 years of age or older at the time the action
14is filed shall file certificates of merit as specified in subdivision
15(h).
16(h) Certificates of merit shall be executed by the attorney for
17the plaintiff and by a licensed mental health practitioner selected
18by the plaintiff declaring, respectively, as follows, setting forth
19the facts that support the declaration:
20(1) That the attorney has reviewed the facts of the case, that the
21attorney has consulted with at least one mental health practitioner
22who is licensed to practice and practices in this state and who the
23attorney reasonably believes is knowledgeable of the relevant facts
24and issues involved in the particular action, and that the attorney
25has concluded on the basis of that review and consultation that
26there is reasonable and meritorious cause for the filing of the action.
27The person consulted may not be a party to the litigation.
28(2) That the mental health practitioner consulted is licensed to
29practice and practices in this state and is not a party to the action,
30that the practitioner is
not treating and has not treated the plaintiff,
31and that the practitioner has interviewed the plaintiff and is
32knowledgeable of the relevant facts and issues involved in the
33particular action, and has concluded, on the basis of his or her
34knowledge of the facts and issues, that in his or her professional
35opinion there is a reasonable basis to believe that the plaintiff had
36been subject to childhood sexual abuse.
37(3) That the attorney was unable to obtain the consultation
38required by paragraph (1) because a statute of limitations would
39impair the action and that the certificates required by paragraphs
40(1) and (2) could not be obtained before the impairment of the
P10 1action. If a certificate is executed pursuant to this paragraph, the
2certificates required by paragraphs (1) and (2) shall be filed within
360 days after filing the complaint.
4(i) Where certificates are required pursuant to
subdivision (g),
5the attorney for the plaintiff shall execute a separate certificate of
6merit for each defendant named in the complaint.
7(j) In any action subject to subdivision (g), no defendant may
8be served, and the duty to serve a defendant with process does not
9attach, until the court has reviewed the certificates of merit filed
10pursuant to subdivision (h) with respect to that defendant, and has
11found, in camera, based solely on those certificates of merit, that
12there is reasonable and meritorious cause for the filing of the action
13against that defendant. At that time, the duty to serve that defendant
14with process shall attach.
15(k) A violation of this section may constitute unprofessional
16conduct and may be the grounds for discipline against the attorney.
17(l) The failure to file certificates in accordance
with this section
18shall be grounds for a demurrer pursuant to Section 430.10 or a
19motion to strike pursuant to Section 435.
20(m) In any action subject to subdivision (g), no defendant may
21be named except by “Doe” designation in any pleadings or papers
22filed in the action until there has been a showing of corroborative
23fact as to the charging allegations against that defendant.
24(n) At any time after the action is filed, the plaintiff may apply
25to the court for permission to amend the complaint to substitute
26the name of the defendant or defendants for the fictitious
27designation, as follows:
28(1) The application shall be accompanied by a certificate of
29corroborative fact executed by the attorney for the plaintiff. The
30certificate shall declare that the attorney has discovered one or
31more facts corroborative of one or more
of the charging allegations
32against a defendant or defendants, and shall set forth in clear and
33concise terms the nature and substance of the corroborative fact.
34If the corroborative fact is evidenced by the statement of a witness
35or the contents of a document, the certificate shall declare that the
36attorney has personal knowledge of the statement of the witness
37or of the contents of the document, and the identity and location
38of the witness or document shall be included in the certificate. For
39purposes of this section, a fact is corroborative of an allegation if
40it confirms or supports the allegation. The opinion of any mental
P11 1health practitioner concerning the plaintiff shall not constitute a
2corroborative fact for purposes of this section.
3(2) Where the application to name a defendant is made prior to
4that defendant’s appearance in the action, neither the application
5nor the certificate of corroborative fact by the attorney shall be
6served
on the defendant or defendants, nor on any other party or
7their counsel of record.
8(3) Where the application to name a defendant is made after
9that defendant’s appearance in the action, the application shall be
10served on all parties and proof of service provided to the court,
11but the certificate of corroborative fact by the attorney shall not
12be served on any party or their counsel of record.
13(o) The court shall review the application and the certificate of
14corroborative fact in camera and, based solely on the certificate
15and any reasonable inferences to be drawn from the certificate,
16shall, if one or more facts corroborative of one or more of the
17charging allegations against a defendant has been shown, order
18that the complaint may be amended to substitute the name of the
19defendant or defendants.
20(p) The court shall
keep under seal and confidential from the
21public and all parties to the litigation, other than the plaintiff, any
22and all certificates of corroborative fact filed pursuant to
23subdivision (n).
24(q) Upon the favorable conclusion of the litigation with respect
25to any defendant for whom a certificate of merit was filed or for
26whom a certificate of merit should have been filed pursuant to this
27section, the court may, upon the motion of a party or upon the
28court’s own motion, verify compliance with this section by
29requiring the attorney for the plaintiff who was required by
30subdivision (h) to execute the certificate to reveal the name,
31address, and telephone number of the person or persons consulted
32with pursuant to subdivision (h) that were relied upon by the
33attorney in preparation of the certificate of merit. The name,
34address, and telephone number shall be disclosed to the trial judge
35in camera and in the absence of the moving party. If the court
finds
36there has been a failure to comply with this section, the court may
37order a party, a party’s attorney, or both, to pay any reasonable
38expenses, including attorney’s fees, incurred by the defendant for
39whom a certificate of merit should have been filed.
P12 1(r) The amendments to this section enacted at the 1990 portion
2of the 1989-90 Regular Session shall apply to any action
3commenced on or after January 1, 1991, including any action
4otherwise barred by the period of limitations in effect prior to
5January 1, 1991, thereby reviving those causes of action which
6had lapsed or technically expired under the law existing prior to
7January 1, 1991.
8(s) The Legislature declares that it is the intent of the Legislature,
9in enacting the amendments to this section enacted at the 1994
10portion of the 1993-94 Regular Session, that the express language
11of revival added to this section by those
amendments shall apply
12to any action commenced on or after January 1, 1991.
13(t) Nothing in the amendments to this section enacted at the
141998 portion of the 1997-98 Regular Session is intended to create
15a new theory of liability.
16(u) The amendments to subdivision (a) of this section, enacted
17at the 1998 portion of the 1997-98 Regular Session, shall apply
18to any action commenced on or after January 1, 1999, and to any
19action filed prior to January 1, 1999, and still pending on that date,
20including any action or causes of action which would have been
21barred by the laws in effect prior to January 1, 1999. Nothing in
22this subdivision is intended to revive actions or causes of action
23as to which there has been a final adjudication prior to January 1,
241999.
O
98