David v. Superior Court

of limitations enacted in 1990. We have concluded that the statutory amendments of 1990 did not revive previously lapsed claims and that this action is therefore untimely. We direct issuance of a writ of mandate.

I

n her amended complaint, plaintiff/real party in interest alleges that her two stepbrothers and a neighbor boy sexually assaulted her in 1974, when she was seven years old. Some 18 years later, in April 1992, she filed this action against the 3 alleged assailants. Also joined were the neighbor’s parents on a theory of vicarious liability under Civil Code section 1714.1.^[1] Defendants demurred to the amended complaint on the ground that it was barred by the statute of limitations. The court overruled the demurrer. This petition followed.

Most claims for personal injuries are subject to a one-year statute of limitations. (Code Civ. Proc., § 340, subd. (3).)^[2] For injuries suffered during childhood, the statute is tolled until the plaintiff reaches majority on his or her 18th birthday. (§ 352, subd. (a).) In effect the deadline for filing suit is the plaintiff’s 19th birthday.

Since 1987, claims based on childhood sexual abuse have been governed by section 340.1. As originally enacted, that statute permitted any claim based on sexual abuse by family or household members to be brought at anytime up until the plaintiff’s 21st birthday.^[3] The statute preserved any right the plaintiff might have to take advantage of rules for delayed accrual. (§ 340.1, subd. (d).) By its terms, it applied to actions pending on its

effective date. (§ 340.1, subd. (e)(2).) Most importantly, it explicitly applied to “any action which would be barred by application of the period of limitation applicable prior to January 1, 1987.” (§ 340.1, subd. (e)(1).) This language had the unmistakable effect of reviving claims which had lapsed under prior law.^[4]

In 1990 the Legislature amended section 340.1.^[5] For the most part the amendments had the effect of further liberalizing the statute of limitations applicable to claims based on childhood sexual abuse. Thus the statute now applies to all claims based on such abuse, not just those against household or family members. The deadline for commencing suit has been extended to the plaintiff’s 26th birthday or even later so long as suit is filed within 3 years after the date on which the plaintiff knows, or should know, of psychological injury resulting from the abuse. (§ 340.1, subd. (a).) In contrast to the original statute, however, the 1990 version does not expressly refer to claims which would be barred under prior law. (§ 340.1, subds. (k), (/).)

Plaintiff’s claims first lapsed in 1986 when she reached her 19th birthday. They were revived on January 1, 1987, when the original section 340.1 took effect. However, they again lapsed in 1988, when plaintiff turned 21. The

of the bill contained reviving language identical to that of the original statute. (Assem. Amend, to Sen. Bill No. 108 (1989-1990 Reg. Sess.) Feb. 6, 1989, Aug. 21, 1989 and Jan. 31, 1990.) This language was subsequently deleted and replaced by a provision permitting the assertion of lapsed claims only if accompanied by a certificate of merit. (Assem. Amend, to Sen. Bill No. 108 of Jan. 31, 1990.) Eventually, all reference to lapsed claims was deleted, and subdivisions (k) and (/) of section 340.1 were added in their present form. (Sen. Bill No. 108 as adopted Aug. 20 and 21, 1990.)

The question of revival was thus squarely before the Legislature, which adopted a progressively restrictive approach before eliminating all reference to lapsed claims. The necessary inference is that the Legislature chose not to provide for revival. It is therefore impossible to agree with plaintiff that the unmistakable purpose of section 340.1, subdivision (k) is the revival of lapsed claims.

V.

Implying that section 340.1, subdivision (k) would have no effect if it were not construed to revive lapsed claims, plaintiff invokes the principle that courts strive to avoid an interpretation which renders statutory language useless, meaningless or superfluous. (Shoemaker v. Myers (1990) 52 Cal.3d 1 , 22 [ 276 Cal.Rptr. 303 , 801 P.2d 1054 , A.L.R.4th 1720].) However, subdivision (k) has an apparent purpose apart from the revival of lapsed claims: to prevent application of the 1990 amendments to actions already filed when the amendments took effect.^[6] This effect is achieved indirectly, by declaring that the amendments will apply to actions filed after the effective date. The express inclusion of one class of actions implies the exclusion of others under the interpretational principle, ‘“expressio unius est exclusio alterius”' (to express one thing is to exclude others). (See In re Ronnie P. (1992) 10 Cal.App.4th 1079 , 1087 [ 12 Cal.Rptr.2d 875 ], review den.)

Further evidence that section 340.1, subdivision (k) exists to exclude pending actions is found in subdivision (l). It provides in effect that existing rules for delayed accrual remain applicable to pending actions. The apparent assumption is that plaintiffs in those actions may not avail themselves of the new rule for delayed accrual adopted as part of the 1990 amendments. (§ 340.1, subd. (a).)

The oblique language of section 340.1, subdivision (k) is admittedly unclear. But that is not a problem to which we are unaccustomed. As has been noted, a statute “is not an equation or a formula representing a clearly marked process, nor is it an expression of an individual thought to which is imparted the definiteness a single authorship can give. A statute is an instrument of government partaking of its practical purposes but also of its infirmities and limitations, of its awkward and groping efforts.” (Frankfurter, Some Reflections on the Reading of Statutes (1947) 47 Colum.L.Rev. 527 , 528, quoted in Leslie Salt Co., supra, 153 Cal.App.3d at p. 613, fn. 10.) Among the “infirmities and limitations” of the legislative process is its occasional predilection for the euphemizing ambiguity that renders a difficult or controversial policy determination less conspicuous. Courts strive to resolve such ambiguities through neutral principles of interpretation without regard to the underlying policy issues.^[7] Here, the applicable principle requires us to resolve the ambiguity against the revival of lapsed claims. As we have explained, the statute before us is insufficiently explicit to permit the result sought by plaintiff and reached by the court below.

Under our holding, a claim must be viewed as untimely if the following conditions are met: (1) the plaintiff reached age 21 before the amended section 340.1 took effect on January 1, 1991; (2) the suit was filed after the plaintiff reached age 21; and (3) the claim is not subject to postponed accrual.

Here the first two conditions appear on the face of the pleadings. Defendants’ demurrers must therefore be sustained unless a basis for postponed accrual appears. The amended complaint merely alleges that plaintiff was “unable to proceed” with the action earlier due to “the emotionally traumatic and difficult nature of this case.” This allegation is not sufficient to invoke any of the usual grounds for postponed accrual, e.g., delayed discovery of the facts or delayed occurrence of damage. (See 3 Witkin, Cal. Procedure, op. cit. supra, Actions, §§ 354-357, pp. 382-386.) The superior court erred in overruling the demurrer.

Let a peremptory writ of mandate issue directing the Superior Court of the City and County of San Francisco to vacate its order overruling the demurrer