Curtis T. v. County of Los Angeles

Opinion

In this tort action against the County of Los Angeles, the minor plaintiff alleged that he was molested by another child for several years while living in a foster home, and that his foster parent saw the alleged molestation but failed to stop it. The trial court sustained the County’s demurrer without leave to amend due to the minor plaintiff’s failure to file a claim within six months of the accrual of his cause of action, as measured from the date the alleged molestation ended.

Plaintiff has appealed from the order of dismissal, contending his claim was timely filed within six months of the accrual of his cause of action, as measured from the date of his mother’s discovery of the alleged molestation. According to the complaint, plaintiff’s mother did not discover the molestation until plaintiff was questioned about having molested his sister.

We reject the County’s contention that under John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 [ 256 Cal.Rptr. 766 , 769 P.2d 948 ] (John R.), plaintiff’s cause of action accrued, as a matter of law, on the date of the alleged molestation. In our view, while the Supreme Court in John R. refrained from applying the “delayed discovery” theory of accrual to the facts of that case, John R. ultimately expressed no rule and imposed no prohibition against equitably applying the delayed discovery theory of accrual in an appropriate child sexual molestation case. In particular, John R. said nothing about whether the theory applies to a much younger plaintiff who was living in foster care when the alleged abuse occurred, and whose foster parent saw the abuse but did nothing to stop it.

BACKGROUND

Defendant County of Los Angeles successfully demurred to a tort complaint which alleged that plaintiff Curtis T., a minor, was sexually molested by another child between March 1996, and February 1999, while living in a foster home “operated under the auspices of’ the County. The foster parent allegedly saw the other child “molesting plaintiff but failed to take any appropriate steps to protect plaintiff or otherwise to prevent further molestation.”

The trial court sustained the County’s demurrer without leave to amend due to plaintiff’s failure to file a timely claim as required by the California Tort Claims Act. (Gov. Code, § 810 et seq.; hereinafter, the Act.) Government Code section 911.2 requires that personal injury claims be filed “not later than six months after the accrual of the cause of action.”

The sole theory of accrual under which plaintiff’s claim would be judged to be timely is the delayed discovery theory of accrual. If that theory applies to this case, then the Act’s six-month claims filing period did not start until plaintiff’s mother had knowledge of the alleged molestation. Plaintiff contends his claim was timely filed on March 7, 2003, which was within six months of his mother’s discovery of the alleged molestation on September 25, 2002.

The County responds that plaintiff’s claim was not timely because his cause of action accrued, at the latest, in February 1999, when the alleged abuse ended.

Believing the allegation of abuse while in foster care to be a significant factor in determining whether the demurrer was properly sustained without leave to amend, we requested supplemental briefing. Two points were critical in our request for briefing: County of Los Angeles v. Superior Court (2001)

Whitfield correctly pointed out that in malpractice cases, “ ‘the statute of limitations commences to run when the plaintiff discovers the injury and its negligent cause or through the exercise of reasonable diligence should have discovered it.’ [Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716 , 722 [ 82 Cal.Rptr. 84 ].] [][] Where the plaintiff is a minor, it is not the knowledge or lack thereof of the minor, but the knowledge or lack thereof of the minor’s parents which determines the time of accrual of the cause of action. [Id. at p. 723 . . . .]” (Whitfield, supra, 10 Cal.3d at p. 885, italics added.) The last italicized sentence quoted from Whitfield does not, in our view, create a blanket delayed discovery rule applicable to all causes of action where a minor is the plaintiff.

John R., supra, 48 Cal.3d 438 , upon which the County heavily relies, also is of little assistance because the Supreme Court declined to reach the question of whether to apply the delayed discovery rule to the facts of that case. The Supreme Court merely stated, “Our initial review of this issue raised a serious question in our minds whether the relevant authorities supported application of a delayed discovery theory of accrual on the facts of this case[.]” (Id. at p. 444.) John R. articulated no principles for applying or rejecting the delayed discovery rule of accrual in other child molestation cases.

Other than to express its serious reservations about applying the delayed discovery rule to the facts before it, John R. gave no guidance about applying the rule in other situations. As one court put it: “The Supreme Court . . . declined to reach the general question in John R.[, supra,] 48 Cal.3d 438 [ 256 Cal.Rptr. 766 , 769 P.2d 948 ] . . . , instead remanding for a determination of whether a teacher’s threat of retaliation had estopped the school district from asserting plaintiff had not filed a timely claim notice. (Id., at pp. 444-445.) One dissenting opinion suggested that delayed discovery should not be extended to molestation cases. (Id., at pp. 460-462 (cone, and dis. opn. of Eagleson, J.).)” (Evans, supra, 216 Cal.App.3d at p. 1614.)

The County nevertheless cites the Supreme Court’s refusal to apply the delayed discovery theory of accrual in John R. as authority for the proposition that “government claims for sexual abuse of a minor accrue on the date of molestation.” We do not read John R. so broadly, however. As noted in

Apart from the recent amendments to Government Code section 911.4 (which tolled the one-year period within which to file late-claim applications for injuries suffered by dependent children in certain situations that do not exist here), the Legislature has adopted no legislation concerning the delayed discovery rule in the context of minors’ molestation cases. We know of no statute that either mandates or prohibits the application of the delayed discovery rule to a minor’s molestation claims, filed while he is still a minor, against a public entity. (Cf. Evans, supra, 216 Cal.App.3d at p. 1614.) As was pointed out in Evans, in the original version of Code of Civil Procedure section 340.1, which sets forth the statute of limitations for childhood sexual abuse claims brought by adult plaintiffs, former subdivision (d) provided: “ ‘Nothing in this bill is intended to preclude the courts from applying delayed discovery exceptions to the accrual of a cause of action for sexual molestation of a minor.’ The Legislature thus has disavowed any intent to interfere with the judicial determination of whether the delayed discovery rule should apply.” (Evans, supra, 216 Cal.App.3d at p. 1614.) Similar language can be found in the 1990 version of Code of Civil Procedure section 340.1, former subdivision [/]: “Nothing in the amendments specified in subdivision (k) shall be construed to preclude the courts from applying equitable exceptions to the running of the applicable statute of limitations, including exceptions relating to delayed discovery of injuries, with respect to actions commenced prior to January 1, 1991.”

The present version of Code of Civil Procedure section 340.1, which applies to adult plaintiffs, contains a partial delayed discovery rule: “(a) In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be 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 psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later, for any of the following actions: [f] (1) An action against any person for committing an act of childhood sexual abuse. [j[] (2) An action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff, [f] (3) An action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the

In this case, however, Code of Civil Procedure section 340.l’s delayed discovery rule does not yet apply, if ever, because it is impossible for plaintiff, while still a minor, to contend that he only recently “discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse.” (Code Civ. Proc., § 340.1, subd. (a), italics added.)

Given that no statutory rule of delayed discovery applies to this case, we must decide whether the complaint has alleged sufficient facts to invoke the equitable doctrine of delayed discovery and, if not, whether the complaint may be amended to cure that defect.

The Supreme Court’s reluctance to apply the delayed discovery rule of accrual in John R. is not persuasive here given the critical factual differences between this case and John R. In John R., the alleged molestation occurred when the minor plaintiff (John) was in junior high school. John, accordingly, was much older when the abuse allegedly occurred than was our plaintiff, who was only five years old when the alleged molestation began. One of the “[t]wo common themes run[ning] through the cases applying the discovery rule of accrual” is that “the rule is applied to types of actions in which it will generally be difficult for plaintiffs to immediately detect or comprehend the breach or the resulting injuries. . . . Even when the breach and damage are not physically hidden, they may be beyond what the plaintiff could reasonably be expected to comprehend.” (Evans, supra, 216 Cal.App.3d at pp. 1614—1615.) The awareness of a junior high school student that he is being sexually molested is, in general, much greater than that of a five year old.

In addition, John R. gave no indication that John was living in foster care when the molestation occurred or that John lacked parents who were legally able to represent his interests. In John R., the alleged molestation occurred in February 1981; John’s father learned of the alleged molestation in December 1981. John’s parents submitted a late-claim application to the school district in May 1982, some 15 months after the alleged February 1981 molestation. The district denied the late-claim application as untimely, because it was not filed within one year of the date of accrual of John’s causes of action, as measured from the date of the February 1981 molestation.

In this case, it is significant that plaintiff was living in foster care when the molestation occurred and he had no parent, at that time, who was legally able to represent his interests. Had plaintiff filed a late-claim application within a year of termination of his dependency case (see County of Los

There is nothing in the statutory scheme to prohibit courts from granting additional time for the accrual of claims by minors who, due to their young age, inexperience, ignorance, or other vulnerabilities were unable to comprehend that they had been molested. The Legislature explicitly recognized that such comprehension can be delayed when it created very generous limitations periods for adults who belatedly realize “that psychological injury or illness occurring after the age of majority was caused by the sexual abuse” that occurred many years ago in childhood. (Code Civ. Proc., § 340.1, subd. (a).)

In DeRose v. Carswell (1987) 196 Cal.App.3d 1011 [ 242 Cal.Rptr. 368 ], a case decided before the Legislature extended the limitations periods for childhood sexual abuse (Code Civ. Proc., § 340.1), the adult plaintiff waited several years after reaching majority to sue her stepgrandfather for sexual molestation. (As the defendant in DeRose was not a public entity, the accrual of the plaintiff’s cause of action was tolled until she reached majority under Code of Civil Procedure, section 352, subdivision (a).) The plaintiff’s delayed discovery theory of accrual was rejected in DeRose on the ground “that an assault, which by definition is unconsented to and offensive, causes immediate harm as a matter of law, and provides an immediate right to sue. ([DeRose, supra, 196 Cal.App.3d] at pp. 1017-1018 . . . .)” (Evans, supra, 216 Cal.App.3d at p. 1618.)

In this case, “[w]e cannot, however, state as a matter of law that it is psychologically impossible for plaintifff] to have lived in such continuing ignorance that what happened to [him] was wrong.” (Evans, supra, 216 Cal.App.3d at p. 1619.)

In Evans, supra, 216 Cal.App.3d 1609 (a case which also predated the extended statute of limitations provided by Code Civ. Proc., § 340.1 for

Given that it is reasonably possible for adults who claim they were molested as children “to allege an unawareness, lasting into adulthood, that the acts done to them were wrongful” (Evans, supra, 216 Cal.App.3d at p. 1619), it is all the more reasonably possible for a 12- or 13-year-old child such as plaintiff to allege he was unaware that the acts done to him between the ages of five and eight were wrongful, particularly when he also alleges that his foster parent saw the alleged molestation but failed to stop it. If “[b]y law and for sound social policies the child must place his trust in the [foster] parent and submit to parental authority” (ibid.), it is reasonable to believe this minor plaintiff can amend to allege that due to his youth, ignorance, and inexperience, coupled with his foster parent’s alleged complicity in the abuse, he was unaware that what was done to him was wrongful prior to his mother’s discovery of the abuse.

Given there is a reasonable possibility the complaint can be amended to allege facts sufficient to invoke the delayed discovery rule of accrual, we conclude the trial court abused its discretion in sustaining the demurrer without leave to amend. Under Code of Civil Procedure section 472c, subdivision (a), “When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.”

We reverse the order of dismissal and direct the trial court to enter a new order sustaining the demurrer with leave to amend. We hold that plaintiff must be given leave to amend to allege, if he is able to do so truthfully— given his youth, ignorance, and inexperience, as well as his foster parent’s alleged complicity in the abuse—that he lacked a real awareness, until his

DISPOSITION

We reverse the judgment (order of dismissal) and direct the trial court to enter a new order sustaining the demurrer with leave to amend. Plaintiff is awarded costs.

Spencer, P. J., and Mallano, J., concurred.