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 wouldbegin delete instead require that an action for recovery of damages suffered as a result of childhood sexual abuseend deletebegin insert establishend insertbegin insert
2 separate statute of limitations for an action for recovery of damages suffered as a result of childhood sexual abuse. An action for recovery of damages suffered as a result of childhood sexual abuse occurring prior to January 1, 2015, would be subject to the above provisions of existing law. An action involving childhood sexual abuse occurring on or after January 1, 2015, would be required toend insert be commenced within 22 years of the date the plaintiff attains the age of majority, or within 3 years of the date thebegin delete 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 stateend deletebegin insert plaintiff discovers or reasonably should have discovered that
psychological injury or illness occurring after the age of majority was caused by the sexual abuseend insert, whichever period expires later.begin delete The bill would make conforming changes.end delete
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
begin 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 abusebegin insert that occurred prior to January
51, 2015end insert, the time for commencement of the action shall be within
6eight years of the date the plaintiff attains the age of majority or
7within three years of the date the plaintiff discovers or reasonably
8should have discovered that psychological injury or illness
9occurring after the age of majority was caused by the sexual abuse,
10whichever period expires later, for any of the following actions:
11(1) An action against any person for committing an act of
12childhood 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 26th
23birthday.
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
P3 1placement of that person in a function or environment in which
2contact with children is an inherent part of that function or
3environment. For purposes of this subdivision, providing or
4requiring counseling is not sufficient, in and of itself, to constitute
5a reasonable step or reasonable safeguard.
6(c) Notwithstanding any other provision of law, any claim for
7damages described in paragraph (2) or (3) of subdivision (a) that
8is permitted to be filed pursuant to paragraph (2) of subdivision
9(b) that would otherwise be barred as of January 1, 2003, solely
10because the applicable statute of limitations has or had expired, is
11revived, and, in that case, a cause of action may be commenced
12within one year of January 1, 2003. Nothing in this subdivision
13shall be construed to alter the applicable statute of limitations
14period of an action that is not time barred as of January 1, 2003.
15(d) Subdivision (c) does not apply to either of the following:
16(1) Any claim that has been litigated to finality on the merits in
17any court of competent jurisdiction prior to January 1, 2003.
18Termination of a prior action on the basis of the
statute of
19limitations does not constitute a claim that has been litigated to
20finality on the merits.
21(2) Any written, compromised settlement agreementbegin delete whichend deletebegin insert thatend insert
22 has been entered into between a plaintiff and a defendant where
23the plaintiff was represented by an attorney who was admitted to
24practice law in this state at the time of the settlement, and the
25plaintiff signed the agreement.
26(e) “Childhood sexual abuse” as used in this section includes
27any act committed against the plaintiff that occurred when the
28plaintiff was underbegin delete the age ofend delete 18 yearsbegin insert
of ageend insert and that would have
29been proscribed by Section 266j of the Penal Code; Section 285
30of the Penal Code; paragraph (1) or (2) of subdivision (b), or of
31subdivision (c), of Section 286 of the Penal Code; subdivision (a)
32or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
33subdivision (b), or of subdivision (c), of Section 288a of the Penal
34Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code;
35Section 647.6 of the Penal Code; or any prior laws of this state of
36similar effect at the time the act was committed. Nothing in this
37subdivision limits the availability of causes of action permitted
38under subdivision (a), including causes of action against persons
39or entities other than the alleged perpetrator of the abuse.
P4 1(f) Nothing in this section shall be construed to alter the
2otherwise applicable burden of proof, as defined in Section 115
3of the Evidence Code, that a plaintiff
has in a civil action subject
4to this section.
5(g) Every plaintiff 26 years of age or older at the time the action
6is filed shall file certificates of merit as specified in subdivision
7(h).
8(h) Certificates of merit shall be executed by the attorney for
9the plaintiff and by a licensed mental health practitioner selected
10by the plaintiff declaring, respectively, as follows, setting forth
11the factsbegin delete whichend deletebegin insert
thatend insert support the declaration:
12(1) That the attorney has reviewed the facts of the case, that the
13attorney has consulted with at least one mental health practitioner
14who is licensed to practice and practices in this state and who the
15attorney reasonably believes is knowledgeable of the relevant facts
16and issues involved in the particular action, and that the attorney
17has concluded on the basis of that review and consultation that
18there is reasonable and meritorious cause for the filing of the action.
19The person consulted may not be a party to the litigation.
20(2) That the mental health practitioner consulted is licensed to
21practice and practices in this state and is not a party to the action,
22that the practitioner is not treating and has not treated the plaintiff,
23and that the practitioner has interviewed the plaintiff and is
24knowledgeable
of the relevant facts and issues involved in the
25particular action, and has concluded, on the basis of his or her
26knowledge of the facts and issues, that in his or her professional
27opinion there is a reasonable basis to believe that the plaintiff had
28been subject to childhood sexual abuse.
29(3) That the attorney was unable to obtain the consultation
30required by paragraph (1) because a statute of limitations would
31impair the action and that the certificates required by paragraphs
32(1) and (2) could not be obtained before the impairment of the
33action. If a certificate is executed pursuant to this paragraph, the
34certificates required by paragraphs (1) and (2) shall be filed within
3560 days after filing the complaint.
36(i) Where certificates are required pursuant to subdivision (g),
37the attorney for the plaintiff shall execute a separate certificate of
38merit for each defendant named in
the complaint.
39(j) In any action subject to subdivision (g), no defendant may
40be served, and the duty to serve a defendant with process does not
P5 1attach, until the court has reviewed the certificates of merit filed
2pursuant to subdivision (h) with respect to that defendant, and has
3found, in camera, based solely on those certificates of merit, that
4there is reasonable and meritorious cause for the filing of the action
5against that defendant. At that time, the duty to serve that defendant
6with process shall attach.
7(k) A violation of this section may constitute unprofessional
8conduct and may be the grounds for discipline against the attorney.
9(l) The failure to file certificates in accordance with this section
10shall be grounds for a demurrer pursuant to Section 430.10 or a
11motion to strike pursuant to Section
435.
12(m) In any action subject to subdivision (g), no defendant may
13be named except by “Doe” designation in any pleadings or papers
14filed in the action until there has been a showing of corroborative
15fact as to the charging allegations against that defendant.
16(n) At any time after the action is filed, the plaintiff may apply
17to the court for permission to amend the complaint to substitute
18the name of the defendant or defendants for the fictitious
19designation, as follows:
20(1) The application shall be accompanied by a certificate of
21corroborative fact executed by the attorney for the plaintiff. The
22certificate shall declare that the attorney has discovered one or
23more facts corroborative of one or more of the charging allegations
24against a defendant or defendants, and shall set forth in clear and
25concise terms the
nature and substance of the corroborative fact.
26If the corroborative fact is evidenced by the statement of a witness
27or the contents of a document, the certificate shall declare that the
28attorney has personal knowledge of the statement of the witness
29or of the contents of the document, and the identity and location
30of the witness or document shall be included in the certificate. For
31purposes of this section, a fact is corroborative of an allegation if
32it confirms or supports the allegation. The opinion of any mental
33health practitioner concerning the plaintiff shall not constitute a
34corroborative fact for purposes of this section.
35(2) Where the application to name a defendant is made prior to
36that defendant’s appearance in the action, neither the application
37nor the certificate of corroborative fact by the attorney shall be
38served on the defendant or defendants, nor on any other party or
39their counsel of record.
P6 1(3) Where the application to name a defendant is made after
2that defendant’s appearance in the action, the application shall be
3served on all parties and proof of service provided to the court,
4but the certificate of corroborative fact by the attorney shall not
5be served on any party or their counsel of record.
6(o) The court shall review the application and the certificate of
7corroborative fact in camera and, based solely on the certificate
8and any reasonable inferences to be drawn from the certificate,
9shall, if one or more facts corroborative of one or more of the
10charging allegations against a defendant has been shown, order
11that the complaint may be amended to substitute the name of the
12defendant or defendants.
13(p) The court shall keep under seal and confidential from the
14public and all parties to the litigation,
other than the plaintiff, any
15and all certificates of corroborative fact filed pursuant to
16subdivision (n).
17(q) Upon the favorable conclusion of the litigation with respect
18to any defendant for whom a certificate of merit was filed or for
19whom a certificate of merit should have been filed pursuant to this
20section, the court may, upon the motion of a party or upon the
21court’s own motion, verify compliance with this section by
22requiring the attorney for the plaintiff who was required by
23subdivision (h) to execute the certificate to reveal the name,
24address, and telephone number of the person or persons consulted
25with pursuant to subdivision (h) that were relied upon by the
26attorney in preparation of the certificate of merit. The name,
27address, and telephone number shall be disclosed to the trial judge
28in camera and in the absence of the moving party. If the court finds
29there has been a failure to comply with this section, the court may
30order a
party, a party’s attorney, or both, to pay any reasonable
31expenses, including attorney’s fees, incurred by the defendant for
32whom a certificate of merit should have been filed.
33(r) The amendments to this section enacted at the 1990 portion
34of the 1989-90 Regular Session shall apply to any action
35commenced on or after January 1, 1991, including any action
36otherwise barred by the period of limitations in effect prior to
37January 1, 1991, thereby reviving those causes of action which
38had lapsed or technically expired under the law existing prior to
39January 1, 1991.
P7 1(s) The Legislature declares that it is the intent of the Legislature,
2in enacting the amendments to this section enacted at the 1994
3portion of the 1993-94 Regular Session, that the express language
4of revival added to this section by those amendments shall apply
5to any action commenced on or after January 1, 1991.
6(t) Nothing in the amendments to this section enacted at the
71998 portion of the 1997-98 Regular Session is intended to create
8a new theory of liability.
9(u) The amendments to subdivision (a) of this section, enacted
10at the 1998 portion of the 1997-98 Regular Session, shall apply
11to any action commenced on or after January 1, 1999, and to any
12action filed prior to January 1, 1999, and still pending on that date,
13including any action or causes of action which would have been
14barred by the laws in effect prior to January 1, 1999. Nothing in
15this subdivision is intended to revive actions or causes of action
16as to which there has been a final adjudication prior to January 1,
171999.
Section 340.105 is added to the Code of Civil
19Procedure, immediately following Section 340.1, to read:
(a) In an action for recovery of damages suffered as
21a result of childhood sexual abuse that occurred on or after
22January 1, 2015, the time for commencement of the action shall
23be within 22 years of the date the plaintiff attains the age of
24majority or within three years of the date the plaintiff discovers
25or reasonably should have discovered that psychological injury
26or illness occurring after the age of majority was caused by the
27sexual abuse, whichever period expires later, for any of the
28following actions:
29(1) An action against any person for committing an act of
30childhood sexual abuse.
31(2) An action for liability against any person or entity who owed
32
a duty of care to the plaintiff, where a wrongful or negligent act
33by that person or entity was a legal cause of the childhood sexual
34abuse that resulted in the injury to the plaintiff.
35(3) An action for liability against any person or entity where
36an intentional act by that person or entity was a legal cause of the
37childhood sexual abuse that resulted in the injury to the plaintiff.
38(b) (1) No action described in paragraph (2) or (3) of
39subdivision (a) may be commenced on or after the plaintiff’s 40th
40birthday.
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.
12(c) “Childhood sexual abuse” as used in this section includes
13any act committed against the plaintiff that occurred when the
14plaintiff was under 18 years of age and that would have been
15proscribed by Section 266j of the Penal Code; Section 285 of the
16Penal Code; paragraph (1) or (2) of subdivision (b), or of
17subdivision (c), of Section 286 of the Penal Code; subdivision (a)
18or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
19subdivision (b), or of subdivision (c), of Section 288a of the Penal
20Code; subdivision (h), (i), or
(j) of Section 289 of the Penal Code;
21Section 647.6 of the Penal Code; or any prior laws of this state of
22similar effect at the time the act was committed. Nothing in this
23subdivision limits the availability of causes of action permitted
24under subdivision (a), including causes of action against persons
25or entities other than the alleged perpetrator of the abuse.
26(d) Nothing in this section shall be construed to alter the
27otherwise applicable burden of proof, as defined in Section 115
28of the Evidence Code, that a plaintiff has in a civil action subject
29to this section.
30(e) Every plaintiff 40 years of age or older at the time the action
31is filed shall file certificates of merit as specified in subdivision
32(f).
33(f) Certificates of merit shall be executed by the attorney for the
34plaintiff and by a licensed mental health
practitioner selected by
35the plaintiff declaring, respectively, as follows, setting forth the
36facts that support the declaration:
37(1) That the attorney has reviewed the facts of the case, that the
38attorney has consulted with at least one mental health practitioner
39who is licensed to practice and practices in this state and who the
40attorney reasonably believes is knowledgeable of the relevant facts
P9 1and issues involved in the particular action, and that the attorney
2has concluded on the basis of that review and consultation that
3there is reasonable and meritorious cause for the filing of the
4action. The person consulted may not be a party to the litigation.
5(2) That the mental health practitioner consulted is licensed to
6practice and practices in this state and is not a party to the action,
7that the practitioner is not treating and has not treated the plaintiff,
8and that the
practitioner has interviewed the plaintiff and is
9knowledgeable of the relevant facts and issues involved in the
10particular action, and has concluded, on the basis of his or her
11knowledge of the facts and issues, that in his or her professional
12opinion there is a reasonable basis to believe that the plaintiff had
13been subject to childhood sexual abuse.
14(3) That the attorney was unable to obtain the consultation
15required by paragraph (1) because a statute of limitations would
16impair the action and that the certificates required by paragraphs
17(1) and (2) could not be obtained before the impairment of the
18action. If a certificate is executed pursuant to this paragraph, the
19certificates required by paragraphs (1) and (2) shall be filed within
2060 days after filing the complaint.
21(g) Where certificates are required pursuant to subdivision (e),
22the attorney for the plaintiff shall
execute a separate certificate of
23merit for each defendant named in the complaint.
24(h) In any action subject to subdivision (e), no defendant may
25be served, and the duty to serve a defendant with process does not
26attach, until the court has reviewed the certificates of merit filed
27pursuant to subdivision (f) with respect to that defendant, and has
28found, in camera, based solely on those certificates of merit, that
29there is reasonable and meritorious cause for the filing of the
30action against that defendant. At that time, the duty to serve that
31defendant with process shall attach.
32(i) A violation of this section may constitute unprofessional
33conduct and may be the grounds for discipline against the attorney.
34(j) The failure to file certificates in accordance with this section
35shall be grounds for a demurrer pursuant
to Section 430.10 or a
36motion to strike pursuant to Section 435.
37(k) In any action subject to subdivision (e), no defendant may
38be named except by “Doe” designation in any pleadings or papers
39filed in the action until there has been a showing of corroborative
40fact as to the charging allegations against that defendant.
P10 1(l) At any time after the action is filed, the plaintiff may apply
2to the court for permission to amend the complaint to substitute
3the name of the defendant or defendants for the fictitious
4designation, as follows:
5(1) The application shall be accompanied by a certificate of
6corroborative fact executed by the attorney for the plaintiff. The
7certificate shall declare that the attorney has discovered one or
8more facts corroborative of one or more of the charging allegations
9against a defendant or
defendants, and shall set forth in clear and
10concise terms the nature and substance of the corroborative fact.
11If the corroborative fact is evidenced by the statement of a witness
12or the contents of a document, the certificate shall declare that the
13attorney has personal knowledge of the statement of the witness
14or of the contents of the document, and the identity and location
15of the witness or document shall be included in the certificate. For
16purposes of this section, a fact is corroborative of an allegation
17if it confirms or supports the allegation. The opinion of any mental
18health practitioner concerning the plaintiff shall not constitute a
19corroborative fact for purposes of this section.
20(2) Where the application to name a defendant is made prior
21to that defendant’s appearance in the action, neither the
22application nor the certificate of corroborative fact by the attorney
23shall be served on the defendant or defendants, nor on any other
24
party or their counsel of record.
25(3) Where the application to name a defendant is made after
26that defendant’s appearance in the action, the application shall
27be served on all parties and proof of service provided to the court,
28but the certificate of corroborative fact by the attorney shall not
29be served on any party or their counsel of record.
30(m) The court shall review the application and the certificate
31of corroborative fact in camera and, based solely on the certificate
32and any reasonable inferences to be drawn from the certificate,
33shall, if one or more facts corroborative of one or more of the
34charging allegations against a defendant has been shown, order
35that the complaint may be amended to substitute the name of the
36defendant or defendants.
37(n) The court shall keep under seal and confidential from the
38public
and all parties to the litigation, other than the plaintiff, any
39and all certificates of corroborative fact filed pursuant to
40subdivision (l).
P11 1(o) Upon the favorable conclusion of the litigation with respect
2to any defendant for whom a certificate of merit was filed or for
3whom a certificate of merit should have been filed pursuant to this
4section, the court may, upon the motion of a party or upon the
5court’s own motion, verify compliance with this section by
6requiring the attorney for the plaintiff who was required by
7subdivision (f) to execute the certificate to reveal the name,
8address, and telephone number of the person or persons consulted
9with pursuant to subdivision (f) that were relied upon by the
10attorney in preparation of the certificate of merit. The name,
11address, and telephone number shall be disclosed to the trial judge
12in camera and in the absence of the moving party. If the court finds
13there has been a failure to comply with
this section, the court may
14order a party, a party’s attorney, or both, to pay any reasonable
15expenses, including attorney’s fees, incurred by the defendant for
16whom a certificate of merit should have been filed.
Section 340.1 of the Code of Civil Procedure is
18amended to read:
(a) In an action for recovery of damages suffered as a
20result of childhood sexual abuse, the time for commencement of
21the action shall be within 22 years of the date the plaintiff attains
22the age of majority or within three years of the date the plaintiff
23discovers or reasonably should have discovered that psychological
24injury or illness occurring after the age of majority was caused by
25the sexual abuse, whichever period expires later, for any of the
26following actions:
27(1) An action against any person for committing an act of
28
childhood sexual abuse.
29(2) An action for liability against any person or entity who owed
30a duty of care to the plaintiff, where a wrongful or negligent act
31by that person or entity was a legal cause of the childhood sexual
32abuse that resulted in the injury to the plaintiff.
33(3) An action for liability against any person or entity where an
34intentional act by that person or entity was a legal cause of the
35childhood sexual abuse that resulted in the injury to the plaintiff.
36(b) (1) No action described in paragraph (2) or (3) of
37subdivision (a) may be commenced on or after the plaintiff’s 40th
38
birthday.
39(2) This subdivision does not apply if the person or entity knew
40or had reason to know, or was otherwise on notice, of any unlawful
P12 1sexual conduct by an employee, volunteer, representative, or agent,
2and failed to take reasonable steps, and to implement reasonable
3safeguards, to avoid acts of unlawful sexual conduct in the future
4by that person, including, but not limited to, preventing or avoiding
5placement of that person in a function or environment in which
6contact with children is an inherent part of that function or
7environment. For purposes of this subdivision, providing or
8requiring counseling is not sufficient, in and of itself, to constitute
9a reasonable step or reasonable safeguard.
10(c) Notwithstanding any other provision of law, any claim for
11damages described in paragraph (2) or (3) of subdivision (a) that
12is permitted to be filed pursuant
to paragraph (2) of subdivision
13(b) that would otherwise be barred as of January 1, 2003, solely
14because the applicable statute of limitations has or had expired, is
15revived, and, in that case, a cause of action may be commenced
16within one year of January 1, 2003. Nothing in this subdivision
17shall be construed to alter the applicable statute of limitations
18period of an action that is not time barred as of January 1, 2003.
19(d) Subdivision (c) does not apply to either of the following:
20(1) Any claim that has been litigated to finality on the merits in
21any court of competent jurisdiction prior to January 1, 2003.
22Termination of a prior action on the basis of the statute of
23limitations does not constitute a claim that has been litigated to
24finality on the merits.
25(2) Any written, compromised settlement agreement
that has
26been entered into between a plaintiff and a defendant where the
27plaintiff was represented by an attorney who was admitted to
28practice law in this state at the time of the settlement, and the
29plaintiff signed the agreement.
30(e) “Childhood sexual abuse” as used in this section includes
31any act committed against the plaintiff that occurred when the
32plaintiff was under 18 years of age and that would have been
33proscribed by Section 266j of the Penal Code; Section 285 of the
34Penal Code; paragraph (1) or (2) of subdivision (b), or of
35subdivision (c), of Section 286 of the Penal Code; subdivision (a)
36or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of
37subdivision (b), or of subdivision
(c), of Section 288a of the Penal
38Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code;
39Section 647.6 of the Penal Code; or any prior laws of this state of
40similar effect at the time the act was committed. Nothing in this
P13 1subdivision limits the availability of causes of action permitted
2under subdivision (a), including causes of action against persons
3or entities other than the alleged perpetrator of the abuse.
4(f) Nothing in this section shall be construed to alter the
5otherwise applicable burden of proof, as defined in Section 115
6of the Evidence Code, that a plaintiff has in a civil action subject
7to this section.
8(g) Every plaintiff 40 years of age or older at the time
the action
9is filed shall file certificates of merit as specified in subdivision
10(h).
11(h) Certificates of merit shall be executed by the attorney for
12the plaintiff and by a licensed mental health practitioner selected
13by the plaintiff declaring, respectively, as follows, setting forth
14the facts
that support the declaration:
15(1) That the attorney has reviewed the facts of the case, that the
16attorney has consulted with at least one mental health practitioner
17who is licensed to practice and practices in this state and who the
18attorney reasonably believes is knowledgeable of the relevant facts
19and issues involved in the particular action, and that the attorney
20has concluded on the basis of that review and consultation that
21there is reasonable and meritorious cause for the filing of the action.
22The person consulted may not be a party to the litigation.
23(2) That the mental health practitioner consulted is licensed to
24practice and practices in this state and is not a party to the action,
25that the practitioner is not treating and has not treated the plaintiff,
26and that the practitioner has interviewed the plaintiff and is
27knowledgeable
of the relevant facts and issues involved in the
28particular action, and has concluded, on the basis of his or her
29knowledge of the facts and issues, that in his or her professional
30opinion there is a reasonable basis to believe that the plaintiff had
31been subject to childhood sexual abuse.
32(3) That the attorney was unable to obtain the consultation
33required by paragraph (1) because a statute of limitations would
34impair the action and that the certificates required by paragraphs
35(1) and (2) could not be obtained before the impairment of the
36action. If a certificate is executed pursuant to this paragraph, the
37certificates required by paragraphs (1) and (2) shall be filed within
3860 days after filing the complaint.
P14 1(i) Where certificates are required pursuant to subdivision (g),
2the attorney for the plaintiff shall execute a separate certificate of
3merit for each defendant named in
the complaint.
4(j) In any action subject to subdivision (g), no defendant may
5be served, and the duty to serve a defendant with process does not
6attach, until the court has reviewed the certificates of merit filed
7pursuant to subdivision (h) with respect to that defendant, and has
8found, in camera, based solely on those certificates of merit, that
9there is reasonable and meritorious cause for the filing of the action
10against that defendant. At that time, the duty to serve that defendant
11with process shall attach.
12(k) A violation of this section may constitute unprofessional
13conduct and may be the grounds for discipline against the attorney.
14(l) The failure to file certificates in accordance with this section
15shall be grounds for a demurrer pursuant to Section 430.10 or a
16motion to strike pursuant to Section
435.
17(m) In any action subject to subdivision (g), no defendant may
18be named except by “Doe” designation in any pleadings or papers
19filed in the action until there has been a showing of corroborative
20fact as to the charging allegations against that defendant.
21(n) At any time after the action is filed, the plaintiff may apply
22to the court for permission to amend the complaint to substitute
23the name of the defendant or defendants for the fictitious
24designation, as follows:
25(1) The application shall be accompanied by a certificate of
26corroborative fact executed by the attorney for the plaintiff. The
27certificate shall declare that the attorney has discovered one or
28more facts corroborative of one or more of the charging allegations
29against a defendant or defendants, and shall set forth in clear and
30concise terms the
nature and substance of the corroborative fact.
31If the corroborative fact is evidenced by the statement of a witness
32or the contents of a document, the certificate shall declare that the
33attorney has personal knowledge of the statement of the witness
34or of the contents of the document, and the identity and location
35of the witness or document shall be included in the certificate. For
36purposes of this section, a fact is corroborative of an allegation if
37it confirms or supports the allegation. The opinion of any mental
38health practitioner concerning the plaintiff shall not constitute a
39corroborative fact for purposes of this section.
P15 1(2) Where the application to name a defendant is made prior to
2that defendant’s appearance in the action, neither the application
3nor the certificate of corroborative fact by the attorney shall be
4served on the defendant or defendants, nor on any other party or
5their counsel of record.
6(3) Where the application to name a defendant is made after
7that defendant’s appearance in the action, the application shall be
8served on all parties and proof of service provided to the court,
9but the certificate of corroborative fact by the attorney shall not
10be served on any party or their counsel of record.
11(o) The court shall review the application and the certificate of
12corroborative fact in camera and, based solely on the certificate
13and any reasonable inferences to be drawn from the certificate,
14shall, if one or more facts corroborative of one or more of the
15charging allegations against a defendant has been shown, order
16that the complaint may be amended to substitute the name of the
17defendant or defendants.
18(p) The court shall keep under seal and confidential from the
19public and all parties to the litigation,
other than the plaintiff, any
20and all certificates of corroborative fact filed pursuant to
21subdivision (n).
22(q) Upon the favorable conclusion of the litigation with respect
23to any defendant for whom a certificate of merit was filed or for
24whom a certificate of merit should have been filed pursuant to this
25section, the court may, upon the motion of a party or upon the
26court’s own motion, verify compliance with this section by
27requiring the attorney for the plaintiff who was required by
28subdivision (h) to execute the certificate to reveal the name,
29address, and telephone number of the person or persons consulted
30with pursuant to subdivision (h) that were relied upon by the
31attorney in preparation of the certificate of merit. The name,
32address, and telephone number shall be disclosed to the trial judge
33in camera and in the absence of the moving party. If the court finds
34there has been a failure to comply with this section, the court may
35order a
party, a party’s attorney, or both, to pay any reasonable
36expenses, including attorney’s fees, incurred by the defendant for
37whom a certificate of merit should have been filed.
38(r) The amendments to this section enacted at the 1990 portion
39of the 1989-90 Regular Session shall apply to any action
40commenced on or after January 1, 1991, including any action
P16 1otherwise barred by the period of limitations in effect prior to
2January 1, 1991, thereby reviving those causes of action which
3had lapsed or technically expired under the law existing prior to
4January 1, 1991.
5(s) The Legislature declares that it is the intent of the Legislature,
6in enacting the amendments to this section enacted at the 1994
7portion of the 1993-94 Regular Session, that the express language
8of revival added to this section by those amendments shall apply
9to any action commenced on or after January 1, 1991.
10(t) Nothing in the amendments to this section enacted at the
111998 portion of the 1997-98 Regular Session is intended to create
12a new theory of liability.
13(u) The amendments to subdivision (a) of this section, enacted
14at the 1998 portion of the 1997-98 Regular Session, shall apply
15to any action commenced on or after January 1, 1999, and to any
16action filed prior to January 1, 1999, and still pending on that date,
17including any action or causes of action which would have been
18barred by the laws in effect prior to January 1, 1999. Nothing in
19this subdivision is intended to revive actions or causes of action
20as to which there has been a final adjudication prior to January 1,
211999.
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