November 23rd Newsletter

LIABILITY UPDATE
November 23, 2007

In Shirk v. Vista Unified School District 2007 Daily Journal D.A.R 12610, the Supreme Court of the State of California stated:

In 2002, the Legislature added a statutory provision that “revived” for the calendar year 2003 those causes of action for childhood sexual molestation that would otherwise have been barred “solely” by expiration of the applicable statute of limitations. (Code Civ. Proc., § 340.1, subd. (c).) Does that provision also apply when a plaintiff suing a public entity has failed to first present a timely claim to the entity, as required by the government claims statute (Gov. Code, § 911.2)? Our answer is “no.”

Plaintiff Linda Shirk was born in 1962. In September 1977, when she was 15 years old, the Vista Unified School District (School District) assigned her to an English class taught by Jeffrey Paul Jones (Jones). In May 1978, Jones initiated their first sexual encounter. Their last sexual contact occurred in November 1979. In the following months plaintiff neither notified the School District of her abuse nor presented a claim to it. In June 2001, when plaintiff’s daughter was attending Vista High School, plaintiff began to encounter teacher Jones at high school band tournaments.

On September 12, 2003, a licensed mental health practitioner interviewed plaintiff and concluded that she was still suffering psychological injury from her sexual abuse by Jones. That same day, plaintiff presented a claim to the School District for personal injury stemming from her sexual abuse by its employee Jones. On September 23, 2003, plaintiff, then 41 years old, sued teacher Jones and the School District. On a form complaint, plaintiff entered the date of the act complained of as “Sept. 12, 2003 (per CCP 340.1(c))” and she checked two boxes indicating compliance with the government claims statute.

The School District demurred on the ground that the negligence causes of action were barred by her belated claim presentation. The trial court agreed; it concluded that plaintiff’s causes of action accrued as of the last act of sexual molestation, which was in November 1979, but that they were barred because of plaintiff’s failure to first present a claim to the School District “at some point in 1980,” as statutorily required. Accordingly, the trial court sustained the demurrer without leave to amend, and it entered a judgment of dismissal as to the School District. Plaintiff appealed, arguing that she had “timely presented her government tort claim” to the School District on September 12, 2003, when her statutory cause of action under subdivision (c) of section 340.1 accrued, because it was only then that “she discovered the cause of her adult psychological injuries.”

The Court of Appeal agreed, but the California Supreme Court granted the School District’s petition for review to resolve a conflict between the decision of the Court of Appeal in this case and a nearly contemporaneous decision of a different Court of Appeal in County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1269. That case held that the Legislature’s 2002 amendment of section 340.1 did not reflect the Legislature’s intent “to excuse victims of childhood sexual abuse” from complying with the government claims statute when suing a public entity defendant. “We reach the same conclusion here, thus reversing the Court of Appeal in this case.”

Plaintiff acknowledged that because of her failure to present a claim to the School District in 1980, her cause of action against the School District was extinguished in 1980. However, she argued that under section 340.1, subdivision (c), which revived for the year 2003 those childhood sexual abuse causes of action on which the statute of limitations had already lapsed as of January 1, 2003, her cause of action against the School District re-accrued on September 12, 2003, when she discovered that her present psychological injury was caused by teacher Jones’s sexual abuse of her some 25 years earlier. Alternatively, she argued that her duty to present her claim to the School District, as required under the government claims statute, first arose on September 12, 2003, when she discovered that her psychological injury was caused by the teacher’s sexual abuse and presented her claim to the School District. “We conclude that neither of her contentions is supported by the language and history of the legislative scheme, as we explain below.”

The court noted that, as amended in 2003, the pertinent language of subdivision (c) of section 340.1 reads: “[A] claim for damages” brought against an entity that owed plaintiff a duty of care and whose wrongful or negligent act was a legal cause of injury to plaintiff resulting from childhood sexual abuse, if the cause of action “would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired is revived” (italics added), and the revived “cause of action may be commenced within one year of January 1, 2003.”

The court found that the plain language of that provision expressly limited revival of childhood sexual abuse causes of action to those barred “solely” by expiration of the applicable statute of limitations. (§ 340.1, subd. (c).) It makes no reference whatsoever to any revival of the period in which to present a claim under the government claims statute. “That lack of reference led the Court of Appeal here to infer that because the Legislature must have been aware that by expressly reviving causes of action against entity defendants in general under subdivision (c), it implicitly revived the deadline for presenting a claim to public entity defendants. We are not persuaded.”

The legislative history of the 2002 amendment at issue here is virtually silent as to its impact on a public entity defendant; it mentions only the general principle that “a school district, church, or other organization engaging in the care and custody of a child owes a duty of care to that child to reasonably ensure its safety.” And the bill’s legislative history makes no mention of an intent to revive the deadline by which to present a claim to a public entity, nor have we found any mention of the potential fiscal impact of reviving public liability for incidents that occurred, as here, decades ago. Thus, the legislative history does not support the view of the Court of Appeal in this case that the Legislature’s revival of childhood sexual abuse causes of action otherwise barred solely by the lapse of the applicable statute of limitations also was intended to apply to the then-already-codified government claim presentation deadline. The Legislature is deemed to be aware of existing statutes, and we assume that it amends a statute in light of those preexisting statutes.

Plaintiff argued that the Legislature was well aware of the claim presentation deadline under the government claims statute, as indicated by section 340.1, subdivision (c)’s opening phrase, “Notwithstanding any other provision of law. . . .” “But that interpretation is inconsistent with the more specific language later in that same sentence expressly reviving only those causes of action ‘barred . . . solely because the applicable statute of limitations has or had expired’ as of January 1, 2003. As discussed earlier, before a plaintiff can bring a cause of action against a public entity, a timely claim must be presented to the entity; when no claim is timely presented, however, such a cause of action is not barred ‘solely’ by lapse of the applicable statute of limitations, the phrasing that the Legislature used in the revival provision of subdivision (c). . . . [T]he government claim presentation deadline is not a statute of limitations. Had the Legislature intended to also revive in subdivision (c) the claim presentation deadline under the government claims statute, it could have easily said so. It did not. We thus conclude that as of January 1, 2003, plaintiff’s causes of action against the School District were barred by expiration of the time for presenting a claim to the School District.”

----Andrea Lynn Rice