Supreme Court of California Justia
Citation 53 Cal. 4th 945, 272 P.3d 977, 139 Cal. Rptr. 3d 3

Quarry v. Doe I



Filed 3/29/12



IN THE SUPREME COURT OF CALIFORNIA



TERRY QUARRY et al.,

Plaintiffs and Appellants,

S171382

v.

Ct.App. 1/4 A120048

DOE I,

Alameda County

Defendant and Respondent.

Super. Ct. No. HG07313640



Plaintiffs brought an action against the Roman Catholic Bishop of Oakland,

alleging that defendant bore responsibility for sexual abuse committed during the

1970‟s by a priest then assigned to the Oakland diocese. Plaintiffs allege that in

2006 they discovered for the first time that the cause of their adult psychological

injuries was the sexual abuse inflicted by this priest when they were children. It is

our task to determine whether their claims are timely within the limitations period

established by Code of Civil Procedure section 340.1.1

Section 340.1 governs the period within which a plaintiff must bring a tort

claim based upon childhood sexual abuse. The statute must be understood in an

1

All further statutory references are to the Code of Civil Procedure unless

otherwise indicated.



1




historical context. Over the years, the limitations period for claims alleging sexual

abuse against children continually was expanded as to actions that were brought

against those persons who were the direct perpetrators of the sexual abuse.

Moreover, in 1990 the Legislature elected to specify that such causes of action

against direct perpetrators could be brought within eight years of majority or

within three years of the time the plaintiff discovered that psychological injury

was caused by childhood abuse. It was only in 1998, however, that the statute was

amended to include third party defendants within its purview, and as to such

defendants the Legislature elected not to embrace the open-ended discovery

provision past the plaintiff‟s 26th birthday. On the contrary, drawing a clear

distinction between direct perpetrators and third party defendants, in 1998 the

Legislature provided that claims against third party defendants must be brought

prior to the plaintiff‟s 26th birthday. The claims of plaintiffs in the present case

clearly were lapsed by 1998, because by that date plaintiffs all had passed their

26th birthdays.

In a 2002 amendment, the Legislature removed the strict age 26 cutoff for

claims against a subcategory of third party defendants. Pursuant to the 2002

amendment, this subcategory of responsible third party defendants was swept

within the provision that previously governed claims against actual perpetrators,

meaning that even after the plaintiff reached the age of 26, a cause of action

against these third party defendants could be brought within three years after the

plaintiff discovered his or her psychological injury was caused by childhood

abuse.

But what of causes of action against the subcategory of third party

defendants that already had lapsed under the law as it existed in 1998? As we

shall explain, in our view a specific subdivision added by the 2002 amendment

provides the sole basis for the revival of such lapsed claims. Because plaintiffs

2



did not bring their action within the one-year revival period prescribed by the 2002

amendment, their claims are barred. Our conclusion rests upon three points: The

1998 amendment under which claims against persons or entities other than the

direct perpetrator of the abuse2 could not be brought once a plaintiff reached the

age of 26; the usual rule of construction that lapsed claims are not considered

revived without express legislative language of revival; and the express — but

limited — language of revival contained in the 2002 amendment to section 340.1.

For the reasons discussed below, the judgment of the Court of Appeal is

reversed.

I. FACTS

Plaintiffs are six brothers born respectively in 1957, 1958, 1959 (twins),

1962, and 1963. Their ages ranged from 43 to 49 when they filed suit. Defendant

is the Roman Catholic Bishop of Oakland.3 In a complaint filed in March 2007

and amended in July 2007, plaintiffs alleged they suffered injury as adults as a

consequence of sexual abuse by a Catholic priest in the 1970‟s. In their first

amended complaint, plaintiffs alleged that they were members of the St. Joachim

parish in Hayward in 1972 and 1973, during the period Father Donald Broderson

was an associate pastor of the parish. The complaint alleged that Father

Broderson, who is not a defendant in this action, “sexually abused and molested

the altar boys at St. Joachim‟s parish . . . by grabbing, fondling, kissing on the

mouth, and engaging in other inappropriate sexual conduct with the boys,


2

We refer to defendants who were not the direct perpetrator of the abuse as

third party defendants and to claims against such defendants as third party claims.

3

In accord with privacy requirements as stated in subdivision (m) of section

340.1, the amended complaint referred to defendant as Doe I. We identify
defendant as the Bishop because the Court of Appeal so identified that party, and
defendant has used that nomenclature in this court.

3



including Plaintiffs . . . . Fr. Broderson sexually abused each of the Plaintiffs in

1972 and/or 1973, while he was assigned as an associate pastor at St. Joachim‟s

parish.”

The complaint alleged that defendant should be held responsible for Father

Broderson‟s actions because the priest was “under its direct supervision, employ

and control.” The complaint named additional Doe defendants, alleging that

persons belonging to the diocese, knowing or having reason to know that Father

Broderson had committed unlawful sexual conduct in the past, failed to execute

their duty to take reasonable steps to avoid future acts of unlawful sexual conduct

on the part of Father Broderson, including by preventing him from working in

contact with children.

The complaint alleged that plaintiffs did not discover until 2006 that the

sexual abuse was the cause of their adult psychological problems. In support, the

complaint alleges that the sexual abuse resulting from defendant‟s alleged breach

of duty caused psychological damage to plaintiffs, damage that rendered them

unable to recognize either as children or well into adulthood the wrongfulness of

Father Broderson‟s actions and the causal connection between the abuse and the

emotional and psychological damage they suffered throughout their lives.

Specifically, “[plaintiffs] did not discover, and reasonably could not discover, the

wrongfulness of Father Broderson‟s conduct until the second half of the 2005

calendar year, when Father Broderson was deposed in connection with a civil

lawsuit, admitted to sexually abusing Plaintiffs, and Plaintiffs were contacted by

an attorney representing other victims of Father Broderson. Plaintiff[s] . . . did not

discover, and could not reasonably have discovered that injuries occurring during

[their] adulthood were caused by the molestation at the hands of Fr. Broderson,

until on or after March 6, 2006, when Plaintiff[s] met with a mental health

practitioner. As a result, within the one calendar year preceding the filing of this

4



action, Plaintiff[s] . . . discovered that the psychological injury occurring after the

age of majority was caused by the sexual abuse.”

The first amended complaint alleged 14 causes of action, primarily

including claims for negligence in hiring, retaining, and supervising Father

Broderson despite knowledge of his prior acts of sexual abuse, and negligent

failure to protect plaintiffs or warn them of their peril.

The trial court sustained defendant‟s demurrer to the first amended

complaint without leave to amend on the ground that the limitations period

established by section 340.1 barred the action, and the action was not revived by

the 2002 amendment to that provision. The court entered judgment dismissing the

complaint with prejudice.

The Court of Appeal reversed, agreeing with plaintiffs that, pursuant to the

2002 amendment to section 340.1 “their claims did not even begin to run until

2006, when they first discovered their „psychological injury or illness occurring

after the age of majority was caused by the sexual abuse.‟ ”

This court granted defendant‟s petition for review. “Because this appeal

arises from a judgment of dismissal following the sustaining of demurrers without

leave to amend, we „ “give[] the complaint a reasonable interpretation, and treat[]

the demurrer as admitting all material facts properly pleaded.” ‟ [Citations.]”

(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 543.)

II. DISCUSSION

A. Prospective and Retrospective Application of

Enlarged Limitations Periods

Before we analyze the application of section 340.1 to plaintiffs‟ case, we

must consult the general rules concerning the application of enlarged limitations

periods to claims involving conduct that occurred prior to the enlarging

amendment.

5



The Legislature has authority to establish — and to enlarge — limitations

periods. As we shall explain, however, legislative enlargement of a limitations

period does not revive lapsed claims in the absence of express language of revival.

This rule of construction grows out of an understanding of the difference between

prospective and retroactive application of statutes.

Our decisions have recognized that statutes ordinarily are interpreted as

operating prospectively in the absence of a clear indication of a contrary

legislative intent. (Californians for Disability Rights v. Mervyn’s, LLC (2006) 39

Cal.4th 223, 230 (Disability Rights); DiGenova v. State Board of Education

(DiGenova) (1962) 57 Cal.2d 167, 174; see also § 3 [“No part of [this code] is

retroactive, unless expressly so declared”].) In construing statutes, there is a

presumption against retroactive application unless the Legislature plainly has

directed otherwise by means of “ „express language of retroactivity or . . . other

sources [that] provide a clear and unavoidable implication that the Legislature

intended retroactive application.‟ ” (McClung v. Employment Development Dept.

(2004) 34 Cal.4th 467, 475 (McClung); see also Disability Rights, supra, at p. 230;

Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841 (Philip

Morris).) Ambiguous statutory language will not suffice to dispel the presumption

against retroactivity; rather “ „a statute that is ambiguous with respect to

retroactive application is construed . . . to be unambiguously prospective.‟ ”

(Philip Morris, supra, at p. 841; see id. at p. 843; see also Disability Rights, supra,

at pp. 229-230; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209,

fn. 13.)

The terms “retroactive” and “prospective,” however, are not always easy to

apply to a given statute. (See Disability Rights, supra, 39 Cal.4th at pp. 230-231.)

We must consider “ „ “the nature and extent of the change in the law and the

degree of connection between the operation of the new rule and a relevant past

6



event” [citation]. In exercising this judgment, “familiar considerations of fair

notice, reasonable reliance, and settled expectations offer sound guidance.”

[Citation.]‟ [Citation].” (In re E.J. (2010) 47 Cal.4th 1258, 1273.)

In general, a law has a retroactive effect when it functions to “ „ “change[]

the legal consequences of past conduct by imposing new or different liabilities

based upon such conduct” ‟ ” that is, when it “ „ “substantially affect[s] existing

rights and obligations[.]” ‟ ” (Disability Rights, supra, 39 Cal.4th at p. 231; see

also In re E.J., supra, 47 Cal.4th at p. 1273 [“ „In general, application of a law is

retroactive only if it attaches new legal consequences to, or increases a party‟s

liability for, an event, transaction, or conduct that was completed before the law‟s

effective date‟ ”].) Ordinarily, considerations of basic fairness militate against

such retroactive changes. (McClung, supra, 34 Cal.4th at p. 475; Philip Morris,

supra, 28 Cal.4th at pp. 840-842.)

Changes to the law, however, are not necessarily considered retroactive

even if their application “involve[s] the evaluation of civil or criminal conduct

occurring before enactment.” (Elsner v. Uveges (2004) 34 Cal.4th 915, 936.) In a

principle of significance to the present case, changes to rules governing pending

litigation, for example, frequently have been designated as prospective, because

they affect the future; that is, the future proceedings in a trial. The prospective

label applies even though the trial concerns conduct that occurred prior to the

enactment of the new law. (Id. at pp. 936-937; see also Disability Rights, supra,

39 Cal.4th at pp. 231-232.)

Enlargement of the statutory period in which civil actions may be brought

constitutes a special category within the general topic of the prospective or

retroactive application of statutes. An extensive line of authority on this subject

has developed and we assume that the Legislature was mindful of such existing

law when it enacted legislation. (See, e.g., Estate of McDill (1975) 14 Cal.3d 831,

7



839; see also Mercy Hospital & Medical Center v. Farmers Ins. Group of

Companies (1997) 15 Cal.4th 213, 221.)

As long as the former limitations period has not expired, an enlarged

limitations period ordinarily applies and is said to apply prospectively to govern

cases that are pending when, or instituted after, the enactment took effect. This is

true even though the underlying conduct that is the subject of the litigation

occurred prior to the new enactment. (See Douglas Aircraft Co. v. Cranston

(1962) 58 Cal.2d 462, 465 (Douglas Aircraft); Mudd v. McColgan (1947) 30

Cal.2d 463, 468 (Mudd).)

For example, in Society of Cal. Pioneers v. Baker (1996) 43 Cal.App.4th

774, 784-785, a case involving a damage claim arising from the misappropriation

of a work of art, the court held that because the prior three-year limitations period

had not expired by the time the statute was amended, it was proper to apply an

enlarged limitations period that added a delayed accrual provision to permit the

plaintiff‟s damage claim to go forward. (See also Mojica v. 4311 Wilshire, LLC

(2005) 131 Cal.App.4th 1069, 1072-1073 [enlargement of the period in which to

bring personal injury claim applied to a claim that had not lapsed for state law

purposes because, prior to the amendment‟s effective date, the plaintiff filed an

action in federal court]; Andonagui v. May Department Stores Company (2005)

128 Cal.App.4th 435, 439-440 (Andonagui) [examining a 2002 enactment

extending the limitations period from one year to two years for personal injury

actions, and concluding the new law applied because the plaintiff‟s claim had not

lapsed].)

However, when it comes to applying amendments that enlarge the

limitations period to claims as to which the limitations period has expired before

the amendment became law — that is, claims that have lapsed the analysis is

different. Once a claim has lapsed (under the formerly applicable statute of

8



limitations), revival of the claim is seen as a retroactive application of the law

under an enlarged statute of limitations. Lapsed claims will not be considered

revived without express language of revival. (Douglas Aircraft, supra, 58 Cal.2d

at p. 465 [“ „It has been held that unless the statute expressly provides to the

contrary any such enlargement applies to matters pending but not already

barred‟ ”]; see also 58 Cal.Jur.3d (2004 ed.) Statutes, § 38, pp. 418-419

[amendments that enlarge a limitations period ordinarily do not apply “where the

claim was not properly made within the statutory time limit . . . and thus expired

prior to the change”].)

For example, in Douglas Aircraft, supra, 58 Cal.2d 462, Douglas Aircraft

sought a declaratory judgment to determine whether it had a duty to remit to the

State Controller certain unclaimed wages that had been earned by its employees.

It needed the judgment to determine whether the wages, as to which the claims

limitation period had lapsed, nonetheless were subject to a new statute providing

that the statute of limitations would not be a defense to the duty to remit

unclaimed property to the State Controller. Because the former limitations period

had run before the effective date of the new statute, we found the new statute

inapplicable to Douglas Aircraft. We explained that “until the statute of

limitations has run it may be extended, whereas after it has run, [defendants] may

rely upon it in conducting their affairs.” (Id. at p. 465; see also Mudd, supra, 30

Cal.2d at p. 468.) Another example is found in Moore v. State Bd. of Control

(2003) 112 Cal.App.4th 371, 378-379 (Moore), in which a claim upon a crime

victim‟s restitution fund had lapsed and was not revived by a subsequently

enlarged limitations period, because the new enactment contained no “clear

indication” of legislative intent to revive lapsed claims. The reviewing court

commented that “when the Legislature intends to revive time-barred claims it does

so expressly.” (Id. at p. 379; see also In re David A. v. Superior Court (1993) 20

9



Cal.App.4th 281, 286-287 (David A.) [interpreting former § 340.1, as amended by

Stats. 1990, ch. 1578, § 1, pp. 7550-7552, and pointing out that lapsed claims are

not revived in the absence of express language of revival]; Gallo v. Superior Court

(1988) 200 Cal.App.3d 1375, 1378 (Gallo) [in the absence of express language of

retroactivity, the enlargement of the period in which to sue for damages arising

from commission of a felony does not revive claims that had “already expired”

under prior law]; id. at pp. 1379, 1383; Krupnick v. Duke Energy Morro Bay

(2004) 115 Cal.App.4th 1026, 1028-1029 (Krupnick) [an enlargement of the

limitations period for personal injury actions did not apply, because the prior

period had lapsed, and the amendment‟s express revival clause for one class of

plaintiffs did not encompass the plaintiff‟s class]; Maldonado v. Harris (9th Cir.

2004) 370 F.3d 945, 955 [same; “Under California law, an extension of a statute

of limitations will not apply to claims already barred under the prior statute of

limitations unless the Legislature explicitly provides otherwise”].)

The rule is based upon the defendant‟s interest in repose. “The reason for

this rule is a judicial perception of unfairness in reviving a cause after the

prospective defendant has assumed its expiration and has conducted his affairs

accordingly.” (Gallo, supra, 200 Cal.App.3d at p. 1378.) As one court

commented, “a statute of limitations grants prospective defendants relief from the

burdens of indefinite exposure to stale claims. By reviving lapsed claims, the

Legislature may appear to renege on this promise. As Judge Hand wrote, there

may be something „unfair and dishonest‟ in after-the-fact withdrawal of this

legislative assurance of safety.” (David A., supra, 20 Cal.App.4th at p. 285.)

Individuals, as well as businesses and other enterprises ordinarily rely upon the

running of the limitations period: “The keeping of records, the maintenance of

reserves, and the commitment of funds may all be affected by such reliance . . . .

To defeat such reliance . . . deprives [enterprises] of the ability to plan intelligently

10



with respect to stale and apparently abandoned claims.” (Douglas Aircraft, supra,

58 Cal.2d at pp. 465-466.) It is for this reason that we have expressed confidence

that “the Legislature would have expressed itself in unmistakable terms had it

rejected the established rules governing the interpretation of statutes of

limitations.” (Id. at p. 466.)

Plaintiffs contend that, notwithstanding the Douglas Aircraft decision, the

modern view is that a statute may be applied retroactively if statutory terms

merely suggest or imply retroactivity, or if legislative history or the overall context

of the statute suggest a retroactive application was intended. The decisions of this

court plaintiffs cite in support do not concern revival of lapsed claims. Contrary to

plaintiffs‟ claim that People v. Frazer (1999) 21 Cal.4th 737 (overruled by Stogner

v. California (2003) 539 U.S. 607) concerned whether a lapsed claim may be

revived in the absence of express or unmistakable language of revival, in that case

there was express language of revival (see People v. Frazer, supra, 21 Cal.4th at

p. 747) and we were required to decide whether this provision constituted a

violation of ex post facto principles or of due process. Plaintiffs have not referred

us to a decision by this court that consulted extrinsic sources or found a claim

revived in the absence of express language of revival.

Indeed, even the decisions plaintiffs claim are closely analogous afford

scant support for their apparent view that a lapsed claim may be revived by

ambiguous language or reliance upon legislative history materials. For example,

in Philip Morris, supra, 28 Cal.4th 828, in rejecting the claim that the repeal of

statutory immunity for products liability based upon exposure to tobacco was

retroactive to the immunity period, we observed that the “time-honored

presumption against retroactive application of a statute . . . would be meaningless

if the vague phrases relied upon by plaintiff and the dissent were considered

sufficient to satisfy the test of a „clear[] manifest[ation]‟ [citation] or an

11



„ “ „ “unequivocal and inflexible” ‟ ” ‟ assertion [citation] of . . . retroactivity.”

(Id. at p. 843.) We continued: “Although we agree with the dissent that „no

talismanic word or phrase is required to establish retroactivity‟ [citation], we do

not agree there is language in the Repeal Statute of the unequivocal and inflexible

statement of retroactivity that [is] require[d].” (Ibid.; see also McClung, supra, 34

Cal.4th 467 [holding that a statute imposing personal liability on nonsupervisory

workers for harassment of coworkers would not apply retroactively to conduct

occurring prior to the enactment, and noting the potential constitutional

implications of a contrary view; although we responded to the plaintiff‟s claim

based upon legislative history materials, we did not suggest that legislative history

materials alone, in the absence of supporting statutory language, would establish

retroactivity].)

Plaintiffs assert that in practice, courts have examined various materials

apart from express language of retroactivity to determine whether a lapsed claim

has been revived. They rely upon Krupnick, supra, 115 Cal.App.4th 1026. In that

case, the plaintiff contended that an extension of the limitations period for

personal injury should apply to revive his lapsed claim. The Court of Appeal

disagreed. It did not cite the DouglasAircraft decision, but relied on its principle:

“ „[A]s a rule of statutory construction, it is established that an enlargement of the

limitations operates prospectively unless the statute expressly provides

otherwise.‟ ” (Krupnick, supra, 115 Cal.App.4th at p. 1029, quoting Gallo, supra,

200 CalApp.3d at p. 1378.) The Krupnick court added that, contrary to the

plaintiff‟s claim that the expansion was retroactive to lapsed claims, the

Legislature‟s express revival of a limited class of claims was proof that other

classes of claims would not be revived. Although it offered evidence from the

legislative history to assist in its interpretation of the express revival clause, the

court did not suggest that legislative history materials could demonstrate that

12



claims could be revived in the absence of unmistakable language in the statute

itself.

B. Plaintiffs’ Claims Lapsed Prior to 2002

We have demonstrated how important it is, for the purpose of deciding

whether a legislatively enlarged limitations period applies to a given case, to

determine whether the claim had lapsed prior to the effective date of the new

enactment, and to determine what effect the Legislature decided to accord to the

lapsing of a claim. Accordingly, as to section 340.1 we review the Legislature‟s

treatment of questions of accrual and lapsing of claims, ultimately concluding that

plaintiffs‟ claims expired by 1998 at the latest.

A cause of action accrues, and the limitations period begins to run, when

“ „the cause of action is complete with all of its elements‟ ” (Fox v. Ethicon Endo-

Surgery, Inc. (2005) 35 Cal.4th 797, 806). Under certain circumstances, however,

the accrual of the action may be postponed and the running of the limitations

period tolled “until the plaintiff discovers, or has reason to discover the cause of

action. [Citations.] [¶] A plaintiff has reason to discover a cause of action when

he or she „has reason at least to suspect a factual basis for its elements.‟

[Citations.] Under the discovery rule, suspicion of one or more of the elements of

a cause of action, coupled with knowledge of any remaining elements, will

generally trigger the statute of limitations period.” (Id. at p. 807; see also Grisham

v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 634.)

The Legislature handled the timeliness of claims relating to childhood

sexual abuse in a number of ways during the period in which it enacted and

amended section 340.1. We review the applicable limitations periods to determine

when, if at all, plaintiffs‟ claims lapsed, and to illustrate how the Legislature has

handled the problems of lapsed claims and delayed discovery of claims.

13



1. At the Time of the Alleged Abuse Former Section 340 Applied

In 1972 and 1973, when it is alleged that the abuse occurred, the applicable

limitations period for claims alleging sexual abuse of a child was one year from

the time the cause of action accrued (former § 340, par. 3, as amended by

Stats. 1968, ch. 150, § 1, p. 373; DeRose v. Carswell (1987) 196 Cal.App.3d 1011,

1015, 1018 (DeRose)), and ordinarily the cause of action accrued at the time of the

alleged abuse. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438,

443; see also Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 210

(Shirk).) For persons who were minors when the alleged abuse occurred, the

limitations period was tolled until one year after the time the plaintiff reached the

age of majority, that is, until the age of 19. (§ 352, subd. (a); Hightower v. Roman

Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759, 765 (Hightower);

Tietge v. Western Province of the Servites, Inc. (1997) 55 Cal.App.4th 382, 385;

DeRose, supra, at p. 1015.)

Thus the claim of the youngest of the plaintiffs, who was born in 1963,4

lapsed in 1982 when he turned 19 years of age. At the time of the alleged abuse

and subsequently there was some authority for applying the common law

discovery rule under certain circumstances to delay the accrual of a cause of action


4

With respect to third party defendants, courts recognized a cause of action

based upon a party‟s direct negligence in failing to protect the plaintiff, or for
hiring, retaining, or supervising the perpetrator. (See Mark K. v. Roman Catholic
Archbishop
(1998) 67 Cal.App.4th 603, 611-612 (Mark K.); Snyder v. Boy Scouts
of America, Inc.
(1988) 205 Cal.App.3d 1318, 1322 (Snyder).) Various decisions
held that respondeat superior liability was not available in similar circumstances
because the sexual abuse occurred outside the scope of employment (Rita M. v.
Roman Catholic Archbishop
(1986) 187 Cal.App.3d 1453, 1461; see also Mark K.,
supra, at p. 609 [asserting that a vicarious liability claim would have been
available until 1986, when the Rita M. case was decided]; Jeffrey E. v. Central
Baptist Church
(1988) 197 Cal.App.3d 718, 721.)

14



based upon childhood sexual abuse.5 As we shall see, however, even if this

authority were applied to third party defendants it would not assist plaintiffs‟ claim

that accrual of their cause of action was delayed until they discovered that their

adult injuries were caused by the childhood abuse. This is because ultimately the

Legislature substituted its own rules for the common law discovery rule, and in

1998 restricted claims against third parties to plaintiffs who had not yet reached

the age of 26 — even if they could allege a delay in discovery that their adult

psychological injuries were caused by childhood abuse.


5

There was authority for the proposition that common law delayed discovery

principles could apply to claims against perpetrators or third party defendants.
(See Snyder, supra, 205 Cal.App.3d at p. 1324 [third party defendants]; DeRose,
supra, 196 Cal.App.3d at pp. 1017-1018 [perpetrator].) Some decisions explained
this was true only if the plaintiff alleged he or she had repressed all memory of the
assault after it occurred — but the limitations period would not be tolled simply
because, as plaintiffs in the present case alleged, the plaintiff suffered subsequent
emotional harm in adulthood and experienced a delayed discovery of the
connection of the harm with the earlier abuse. (DeRose, supra, at pp. 1017-1019;
see also Marsha V. v. Gardner (1991) 231 Cal.App.3d 265, 271-273.) Other
decisions adopted a somewhat broader common law delayed discovery principle
regarding plaintiffs who, for psychological reasons, were unaware of the
wrongfulness of the perpetrator‟s acts when they were committed, although again
there was no application of the delayed discovery rule permitted simply because a
plaintiff failed to recognize the connection between the abuse and the adult
psychological injury. (See Sellery v. Cressey (1996) 48 Cal.App.4th 538, 545;
Evans v. Eckelman (1990) 216 Cal.App.3d 1609, 1618-1620 (Evans) [direct
perpetrator]; see also Mark K., supra, 67 Cal.App.4th at pp. 610-611, 612, fn. 9
[applying common law principles to a third party claim].)


We need not parse these decisions to determine whether or how they would

have applied to plaintiffs‟ third party claims if their lawsuit had been brought
during the 1970‟s or 1980‟s. As we shall see, the 1998 amendment to section
340.1 made it plain that causes of action against third parties lapsed when the
plaintiff reached the age of 26, notwithstanding any alleged delay in discovery that
adult psychological harm was caused by childhood abuse.

15



2. 1986 — Section 340.1 Enacted to Extend to Three Years the


Statute of Limitations for Claims Against a Member



of the Minor’s Household

Section 340.1 was enacted in 1986, and it extended to three years the

limitations period for actions alleging sexual abuse of a minor when the

perpetrator was a member of the minor’s household. (Former § 340.1, added by

Stats. 1986, ch. 914, § 1, pp. 3165-3166.) Because of this limitation, it would not

have applied to plaintiffs‟ claims.6

Although the 1986 statute did not apply to third party claims such as

plaintiffs‟, we believe it is significant to our understanding of the Legislature‟s

intent regarding delayed discovery to note that the statute specifically referred to

common law delayed discovery principles, providing that “[n]othing 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.” (Former § 340.1,

subd. (d), added by Stats. 1986, ch. 914, § 1, p. 3166.)

As further evidence that the Legislature provides expressly for the revival

of lapsed claims even when a statute embraces a delayed discovery rule, we

observe that the 1986 enactment provided: “This section shall apply to both of the

following: [¶] (1) Any action commenced on or after January 1, 1987, including

any action which would be barred by application of the period of limitation

applicable prior to January 1, 1987. [¶] (2) Any action commenced prior to


6

The statute provided in pertinent part: “(a) In any civil action for injury or

illness based upon lewd or lascivious acts with a child under the age of 14 years
[or other enumerated sexual offenses], in which this conduct is alleged to have
occurred between a household or family member and a child where the act upon
which the action is based occurred before the plaintiff attained the age of 18 years,
the time for commencement of the action shall be three years.” (Former § 340.1,
subd. (a), added by Stats. 1986, ch. 914, § 1, p. 3165.)

16



January 1, 1987, and pending on January 1, 1987.” (Former § 340.1, subd. (e),

added by Stats. 1986, ch. 914, § 1, p. 3166.)

3. 1990 Amendment to Section 340.1 Enlarged the Statute of


Limitation to Eight Years Following the Age of Majority



and Created Its Own Statutory Delayed Discovery Rule

In 1990, section 340.1 was amended to extend beyond members of the

minor‟s household to reach any perpetrator of sexual abuse against a child.

(Stats. 1990, ch. 1578, § 1, p. 7550 et seq.) Although the amended statute applied

to direct perpetrators and not third party defendants such as those involved in the

present case, the Legislature‟s expansion of the limitations period, along with its

treatment of the delayed discovery rule and the revival of claims again is relevant

to our inquiry.

The Legislature amended section 340.1 to significantly enlarge the

limitations period from three to eight years following the age of majority (i.e., to

age 26). (Stats. 1990, ch. 1578, § 1, p. 7550 et seq.) The amendment also created

its own statutory delayed discovery rule, evidencing intent to provide a new rule

that would extend delayed discovery principles beyond what had been recognized

in the case law. (See DeRose, supra, 196 Cal.App.3d at pp. 1017-1018 [delayed

discovery principles did not extend to the plaintiff‟s failure to recognize that adult

psychological injury was caused by childhood abuse]; see also Evans, supra, 216

Cal.App.3d at pp. 1618-1620 [same].) As amended, subdivision (a) of section

340.1 provided: “(a) In any civil 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 occurs later.” (Former § 340.1,

17



subd. (a), as amended by Stats. 1990, ch. 1578, § 1, p. 7550, italics added.) As

one court commented, “The obvious goal of amended section 340.1 is to allow

sexual abuse victims a longer time period in which to become aware of their

psychological injuries and remain eligible to bring suit against their abusers.”

(Debbie Reynolds Prof. Rehearsal Studios v. Superior Court (1994) 25

Cal.App.4th 222, 232 (Debbie Reynolds); see id. at p. 231 [also confirming that

the 1990 amendments did not apply to claims against third parties].)

Further, the language of the original 1986 statute that had embraced

common law delayed discovery principles — “[n]othing 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” (former § 340.1, subd. (d),

added by Stats. 1986, ch. 914, § 1, p. 3166) — was deleted. However, for actions

brought prior to the effective date of the 1990 amendment, common law delayed

discovery principles were maintained: “Nothing in the amendments specified in

subdivision (k) [making the amendments applicable to actions commenced on or

after Jan. 1, 1991] 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.” (Former § 340.1, subd. (l), added

by Stats. 1990, ch. 1578, § 1, p. 7552.)

The 1990 amendment also provided that “[t]he amendments to this section

enacted at the 1990 portion of the 1989-90 Regular Session shall apply to any

action commenced on or after January 1, 1991.” (Former § 340.1, subd. (k), added

by Stats. 1990, ch. 1578, § 1, p. 7552.) Because this language did not constitute

express language of revival, it was held to be insufficient to revive lapsed claims.

(David A., supra, 20 Cal.App.4th at p. 286; see also Lent v. Doe (1995) 40

Cal.App.4th 1177, 1183.)

18



4. 1994 Amendment to Section 340.1 Expressly Revised Lapsed


Claims and Deleted the Remaining Reference to Common Law



Delayed Discovery Principles

Section 340.1 was amended for a second time in 1994, and again, although

the amendments did not render the statute applicable to third party defendants, the

amendments are of interest because of the Legislature‟s efforts to use express and

unmistakable language to govern revival of lapsed claims, as well as for the

Legislature‟s elimination of the remaining reference to common law delayed

discovery principles. (Stats. 1994, ch. 288, § 1, pp. 1928-1931.) The 1994

amendment added express language of revival, responding to the David A.

decision that had determined that the 1990 amendments had not revived lapsed

claims. (Legis. Counsel‟s Dig., Assem. Bill No. 2846 (1993-1994 Reg. Sess.) 5

Stats. 1994, Summary Dig., p. 111; see Sen. Com. on Judiciary, Analysis of

Assem. Bill No. 1651 (1997-1998 Reg. Sess.) as amended July 16, 1998, p. 8; see

also David A., supra, 20 Cal.App.4th at pp. 286-287.)

Thus the Legislature added to the language previously providing that “[t]he

amendments to this section enacted at the 1990 portion of the 1989-90 Regular

Session shall apply to any action commenced on or after January 1, 1991,” the

additional phrase “including any action otherwise barred by the period of

limitations in effect prior to January 1, 1991, thereby reviving those causes of

action which had lapsed or technically expired under the law existing prior to

January 1, 1991.” (Former § 340.1, subd. (o), added by Stats. 1994, ch. 288, § 1,

p. 1930, italics added.) With respect to its own 1994 amendments, the Legislature

declared its intent “in enacting the amendments to this section enacted at the 1994

portion of the 1993-94 Regular Session, that the express language of revival added

to this section by those amendments shall apply to any action commenced on or

after January 1, 1991.” (Former § 340.1, subd. (p), added by Stats. 1994, ch. 288,

§ 1, pp. 1930-1931.)

19



At the same time, the Legislature deleted former subdivision (l), with its

reference to the equitable exceptions to the statute of limitations and common law

delayed discovery principles. (See Stats. 1994, ch. 288, § 1, p. 1930; Historical

and Statutory Notes, 13C West‟s Ann. Code Civ. Proc. (2006 ed.) foll. § 340.1,

p. 173.)

5. 1998 Amendment to Section 340.1 for the First Time Authorized


Actions Against Third Party Defendants But Barred Such Actions



by Plaintiffs Who Had Attained 26 Years of Age

We now reach the 1998 amendments that for the first time included certain

third party defendants within the scope of the enlarged limitations period that was

established by the 1990 amendments — that is, by former section 340.1,

subdivision (a), providing that the time to bring an action for childhood sexual

abuse may be extended until three years after the plaintiff recognized the

connection between adult psychological injury and the childhood abuse

(Stats. 1990, ch. 1578, § 1, p. 7550). The 1998 amendment stipulated that the

limitations period of subdivision (a) applied “for any of the following actions: [¶]

(1) An action against any person for committing an act of childhood sexual abuse.

[¶] (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. [¶] (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 plaintiff.” (Former § 340.1, subd. (a), as

amended by Stats. 1998, ch. 1032, § 1, p. 7785.)

Although the 1998 amendments now included certain third party

defendants within the scope of the provision recognizing that the limitations

period for child sexual abuse claims could run from the discovery that

20



psychological injury was caused by the childhood abuse, at the same time the

amendments provided a separate subdivision directing that no claim against a

third party covered by subdivision (a) could be brought once the plaintiff reached

the age of 26. Specifically, the 1998 amendment added a new subdivision (b),

providing that “[n]o action described in paragraph (2) or (3) of subdivision (a)

may be commenced on or after the plaintiff‟s 26th birthday.” (Former § 340.1,

subd. (b), added by Stats. 1998, ch. 1032, § 1, p. 7785.)7

Finally, the amendments also declared that the 1998 enactment lengthening

the limitations period for claims against third parties did not create “a new theory

of liability.” (Former § 340.1, subd. (r), added by Stats. 1998, ch. 1033, § 1,

p. 7788.)

For a number of reasons, we are confident that the 1998 amendment

imposed an absolute bar against instituting a lawsuit against third party defendants

once the plaintiff reached the age of 26. Contrary to the suggestion of

Justice Liu‟s dissent that undiscovered claims were not subject to the age 26 cutoff

(dis. opn. of Liu, J., post, at p. 2), the 1998 amendment expressed the limit in

absolute terms. It did not distinguish between discovered and undiscovered

claims, but rather made plain that no third party action brought under section

340.1, subdivision (a) — a provision that itself provided a limitation period that

could be measured from the time of discovery — may be brought once the

plaintiff reaches the age of 26. Absent from subdisivion (b)‟s absolute language is

any reference to delayed discovery once a plaintiff with a third party claim

7

The enactment also relettered the subdivisions that appeared in prior

versions of the statute that referred to application of the 1990 and 1994
amendments. (Compare former § 340.1, subds. (p), (q), as amended or added by
Stats. 1998, ch. 1032, § 1, p. 7788, with former § 340.1, subds. (o), (p), added by
Stats. 1994, ch. 288, § 1, p. 1930.)

21



reached age 26 — despite the Legislature‟s evident familiarity with the problem of

delayed discovery in the 1990 and 1994 versions of the statute and its awareness

of the need for express revival provisions. The Legislature made an obvious

choice to use language for claims against third party defendants that differed

markedly from the language it still used for claims against direct perpetrators.

(See Moore, supra, 112 Cal.App.4th at p. 382 [“An express legislative provision

for circumstances which will toll a statute [of limitations] excludes, by necessary

implication, all other exceptions”].) As to plaintiffs with claims against these third

party defendants, the Legislature elected to toll the limitations period to age 26,

but no longer.

Our interpretation was shared by the court in Hightower (Hightower, supra,

142 Cal.App.4th at p. 767; see also Shirk, supra, 42 Cal.4th at p. 208), and indeed,

the Court of Appeal in the present case interpreted the 1998 amendments as we

have done. Describing the law prior to the 2002 amendments, it observed that

unlike for claims against direct perpetrators, “as against third parties, . . . the

outside limit was age 26. [Citation.] Thus, under the prior law, any person

discovering after age 26 that childhood abuse was the cause of his or her

adulthood injuries was barred from suing responsible third parties.” Plaintiffs‟

brief on the merits describes the effect of the 1998 amendments in the same way.

Finally, legislative history supports the same interpretation. Attempting to “strike

a balance between the interests of the victims and the purpose behind the statute of

limitations,” the original bill was narrowed to carefully define the third party

claims to which it applied and “to require commencement of the action before the

plaintiff‟s 26th birthday.” (Sen. Com. on Judiciary, Analysis of Assem. Bill

No. 1651 (1997-1998 Reg. Sess.) as amended July 30, 1998, p. 4, underscoring

omitted; see also Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading

22



analysis of Assem. Bill No. 1651 (1997-1998 Reg. Sess.) as amended Aug. 19,

1998, pp. 1, 3, 4, 7.)

Plaintiffs were 26 years of age or older on the effective date of the 1998

legislation. When the 1998 amendment went into effect, it is certain that their

claims had lapsed.

6. 1999 Amendment to Section 340.1 Clarified and Extended the


1998 Amendment and Its Application to Prospective and



Pending Actions Filed Prior to January 1, 1999

In 1999, section 340.1 was amended for the fourth time, but these

amendments did nothing to revive plaintiffs‟ lapsed claims. (Former § 340.1, as

amended by Stats. 1999, ch. 120, § 1, pp. 1735-1739.) In language then lettered as

subdivision (s) (but now appearing in subd. (u)) of the statute, the 1999

amendment extended the changes effected by the 1998 amendment to “any action

commenced on or after January 1, 1999, and to any action filed prior to January 1,

1999, and still pending on that date, including any action or causes of action which

would have been barred by the laws in effect prior to January 1, 1999. Nothing in

this subdivision is intended to revive actions or causes of action as to which there

has been a final adjudication prior to January 1, 1999.” (Former § 340.1, subd. (s),

added by Stats. 1999, ch. 120, § 1, pp. 1738-1739.) This language had the effect

of reviving, for potential plaintiffs still under the age of 26, previously lapsed

claims. There is no reference to the discovery rule or permitting claims to be

made after the age of 26. Plaintiffs, having already passed the age of 26, and not

having instituted an action prior to January 1, 1999, were not aided by this

amendment, and their claims remained lapsed.8


8

As we explained in a prior decision: “In 1999, the Legislature again

amended section 340.1, clarifying that its 1998 changes relating to the liability of
nonabuser persons or entities were prospective — that is, its provisions applied

(footnote continued on next page)

23



C. The 2002 Amendment to Section 340.1 Created a

Subcategory of Third Party Defendants Against Whom

Actions Could Be Brought Within Eight Years of

Majority or Three Years of Discovery of the Injury

We come finally to the 2002 amendment of section 340.1, which, as noted,

identified a new subcategory of third party defendant who henceforth would not

receive the protection of the absolute cutoff of age 26. (Stats. 2002, ch. 149, § 1,

pp. 752-753.) It is into this category that plaintiffs claim defendant falls. Under

the 2002 amended statute, a category of third-party defendants would be exposed

to liability in any action for recovery of damages suffered as a result of childhood

sexual abuse for the same extended period as direct perpetrators.

The 2002 amendments did not alter section 340.1, subdivision (a), with its

limitation period of eight years from majority (i.e., age 26) or three years from the

time the plaintiff discovered or reasonably should have discovered that adult

psychological injury was caused by childhood abuse — whichever period is

longer. The category of third party defendants to whom the subdivision (a)

limitations period applied was not amended (see § 340.1, subd. (a)(2) & (3)), but a

new subcategory of such defendants was defined. Significantly, the existing outer

limit — that is, the age 26 cutoff on third party claims — remained, and the statute

still provides that “[n]o action described in paragraph (2) or (3) of subdivision (a)

may be commenced on or after the plaintiff‟s 26th birthday.” (§ 340.1,

subd. (b)(1).


(footnote continued from previous page)

only to actions begun on or after January 1, 1999, or if filed before that time,
actions still pending as of that date, „including any action or causes of action
which would have been barred by the laws in effect prior to January 1, 1999.‟ ”
(Shirk, supra, 42 Cal.4th at p. 208.)

24



However, under the 2002 amendment, for the first time a special exception

to the age 26 cutoff appeared and provided a longer limitations period for

childhood sexual abuse claims, subject to the statutory delayed discovery rule

already defined by subdivision (a) of the statute. (Stats. 2002, ch. 149, § 1,

pp. 752-753.)

This exception was adopted to apply to claims against a subcategory of the

third party defendants that already had been defined in section 340.1, subdivision

(a)(2) and (3). Thus, in 2002 the Legislature added subdivision (b)(2) to section

340.1, and as relevant, the new subdivision provides: “This subdivision

[referencing subd. (b)(1), declaring third party claims to be timely solely if they

are brought prior to the plaintiff‟s 26th birthday] does not apply if the person or

entity knew or had reason to know, or was otherwise on notice, of any unlawful

sexual conduct by an employee, volunteer, representative, or agent, and failed to

take reasonable steps, and to implement reasonable safeguards, to avoid acts of

unlawful sexual conduct in the future by that person, including, but not limited to,

preventing or avoiding placement of that person in a function or environment in

which contact with children is an inherent part of that function or environment.”

(§ 340.1, subd. (b)(2).) Instead of the general rule restricting a plaintiff‟s claim

against third parties to a plaintiff who had not reached the age of 26, claims

against such subcategory of third party defendants are governed by

subdivision (a), described above, establishing, as noted, the limitations period of

eight years from majority or three years from discovery, as defined.

To sum up, in its 2002 amendments to section 340.1, the Legislature

enlarged the limitations period applicable to childhood sexual abuse claims against

a certain subcategory of third parties by extending subdivision (a)‟s existing

expansive limitations period — including its recognition of delayed discovery —

to claims against these third parties, but without the age 26 cutoff. For claims

25



against defendants falling within that subcategory of third party defendants,

actions for damages suffered as the result of childhood sexual abuse would be

timely even if brought beyond eight years after obtaining majority, so long as they

were brought “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 . . . .”

(§ 340.1, subd. (a).) In substance, potential plaintiffs with claims against the

subcategory of third party defendants were in the position of plaintiffs with claims

against perpetrators after the 1990 amendments — they could claim the benefit of

the extended period established by section 340.1, subdivision (a).

We recall that the 1990 amendments, which created subdivision (a)‟s

extended discovery period, did not revive lapsed claims. (David A., supra, 20

Cal.App.4th at p. 286; see also Lent v. Doe, supra, 40 Cal.App.4th at p. 1183.) In

2002, however, the Legislature followed the requirement discussed previously that

revival of lapsed claims must be accomplished expressly, but it also limited the

period of revival. Thus, section 340.1, subdivision (c) now provides that

“[n]otwithstanding any other provision of law, any claim for damages described in

paragraph (2) or (3) of subdivision (a) that is permitted to be filed pursuant to

paragraph (2) of subdivision (b) that would otherwise be barred as of January 1,

2003, solely because the applicable statute of limitations has or had expired, is

revived, and, in that case, a cause of action may be commenced within one year of

January 1, 2003. Nothing in this subdivision shall be construed to alter the

applicable statute of limitations period of an action that is not time barred as of

January 1, 2003.” (Italics added.)9 This language revived any lapsed claims,


9

Additional revival clauses dating from the several earlier amendments to

section 340.1 survive, relettered as subdivisions (r), (s), and (u) of the statute.

(footnote continued on next page)

26



giving them the benefit of the new enactment, but the claims were revived for only

one year.

The first sentence of section 340.1, subdivision (c) refers to “any claim”

that is barred. The phrase “any claim” is inclusive language that by its terms

refers to any lapsed claim, whether previously discovered or not. The first

sentence of the subdivision revives a claim that has lapsed by virtue of the passing

of the limitations period, and “in that case” — i.e., in any case that was barred but

is revived — requires the action to be brought within the one year window period.


(footnote continued from previous page)

Subdivision (r) provides that “[t]he amendments to this section enacted at the 1990
portion of the 1989-90 Regular Session shall apply to any action commenced on or
after January 1, 1991, including any action otherwise barred by the period of
limitations in effect prior to January 1, 1991, thereby reviving those causes of
action which had lapsed or technically expired under the law existing prior to
January 1, 1991.” Subdivision (s) provides that “[t]he Legislature declares that it
is the intent of the Legislature, in enacting the amendments to this section enacted
at the 1994 portion of the 1993-94 Regular Session, that the express language of
revival added to this section by those amendments shall apply to any action
commenced on or after January 1, 1991.” And subdivision (u) provides that “[t]he
amendments to subdivision (a) of this section enacted at the 1998 portion of the
1997-98 Regular Session, shall apply to any action commenced on or after
January 1, 1999, and to any action filed prior to January 1, 1999, and still pending
on that date, including any action or causes of action which would have been
barred by the laws in effect prior to January 1, 1999. Nothing in this subdivision
is intended to revive actions or causes of action as to which there has been a final
adjudication prior to January 1, 1999.”


We also note the addition of subdivision (d), exempting from subdivision

(c) claims that have been (1) litigated to finality on the merits prior to January 1,
2003 or (2) settled, as defined. Language in subdivision (d)(1) — providing that
termination on the basis of the statute of limitations does not constitute a claim
that has been litigated to finality on the merits — has been held inconsistent with
the separation of powers doctrine. (Perez v. Roe 1 (2006) 146 Cal.App.4th 171,
187-188 [the Legislature lacks authority to revive an action resolved in a final
judgment that applied an prior limitations period].)

27



There is no language in either sentence of subdivision (c) that permits a longer

period for hitherto undiscovered claims. The subdivision quite plainly supplies an

exception to the general rule against retroactive enlargement of limitations periods

once claims have lapsed. We recall that lapsed claims are revived only by express

language of revival. And from subdivision (c)‟s expressly limited exception, we

infer that other exceptions to the general rule were not intended. It is a settled rule

of statutory construction that “where exceptions to a general rule are specified by

statute, other exceptions are not to be implied or presumed.” (Wildlife Alive v.

Chickering (1976) 18 Cal.3d 190, 195.) In Moore, supra, 112 Cal.App.4th 371,

for example, the court applied this rule of construction in the context of an

enlarged limitations period for claims against a crime victim‟s restitution fund,

concluding that claims not noted in the statute‟s new language were not affected.

(Id. at p. 382; see also Krupnick, supra, 115 Cal.App.4th at pp. 1029-1030

[interpreting an expansion of the limitations period for personal injury claims, the

court inferred from the statute‟s express language of revival for victims of terrorist

acts that the Legislature excluded retroactive enlargement of the statute of

limitations as to other lapsed claims].)

We observe, too, that the Legislature has experience with phrasing revival

clauses in connection with its various amendments to section 340.1, and as

discussed above, has used separate revival clauses even as it created or made

changes to delayed discovery provisions in the statute (see former § 340.1,

subd. (e), added by Stats. 1986, ch. 914, § 1, p. 3166; former § 340.1, subds. (o) &

(p), added by Stats. 1994, ch. 288, § 1, pp. 1930-1931; former § 340.1, subd. (s),

added by Stats. 1999, ch. 120, § 1, pp. 1738-1739.) We may infer from the

absence of broad language of revival with respect to the 2002 enlargement of the

limitations period, that the Legislature did not intend, merely because it extended a

28



discovery provision to a new class of defendants, to authorize revival of lapsed

claims except as specified in section 340.1, subdivision (c).

We have pointed out that express statutory language is required to revive

lapsed claims. In the absence of any attempt by the Legislature in 2002 to add

express language of revival to subdivision (a) of section 340.1, and in the absence

of any language of revival in the newly added text of subdivision (b)(2), and in the

presence of express but limited language of revival in subdivision (c) that purports

to govern “any claim” (italics added) against the new subcategory of third party

defendants that previously had lapsed, it seems evident that “any claim” against a

defendant alleged to fall within the third party subcategory that had lapsed prior to

January 1, 2003, was revived, but only for the period referred to in the amended

statute — that is, only for one year following January 1, 2003. Here, plaintiffs‟

claims had lapsed prior to the 2002 enactment (because they were over 26 years of

age), but they failed to bring their action during the revival period, so the trial

court correctly concluded that their action is barred.

Our conclusion is consistent with the reviewing court‟s decision in

Hightower, supra, 142 Cal.App.4th 759. There the court determined that the

plaintiff‟s third party claims had lapsed in 1977, one year after he reached

majority, and that his claims clearly were time-barred under the 1998 amendments

to section 340.1 because he had then attained the age of 26. The plaintiff

countered that he had not discovered the injury until 2003, and he claimed that

therefore the 2002 amendments extending the statutory delayed discovery rule to

certain third party defendants applied to his claims The Court of Appeal

disagreed, explaining that the circumstance that the plaintiff would have been able

to assert delayed discovery under the 2002 amendments — if his claims had not

previously lapsed — did not alter the result. The court observed that “the

Legislature revived for only one year all such claims that were already time-

29



barred. The Legislature therefore drew a clear distinction between claims that

were time-barred and those that were not. Hightower‟s interpretation would

obliterate that distinction by allowing his time-barred claim to take advantage of

the new limitations period. Therefore, the new delayed discovery rule does not

revive Hightower‟s previously lapsed claims.” (Hightower, supra, 142

Cal.App.4th at pp. 767-768.)

We have established that the revival of any lapsed claims against the

subcategory of defendants identified in the 2002 amendments is governed by

subdivision (c). We have also established that as of 1998 plaintiffs‟ claims

necessarily had lapsed. Plaintiffs‟ claims were not revived by the 1999

amendments. Thereafter, plaintiffs‟ lapsed claims were revived by the 2002

amendments, but for one year only. Because they did not file their claims within

that year, their claims are barred under the applicable statute of limitations.

D. Analysis of Contrary Views

1. Subdivision (c)

Plaintiffs offer a contrary reading of subdivision (c) of section 340.1,

contending that the first sentence, with its one-year revival of lapsed claims,

applies to discovered claims that have lapsed, whereas the second sentence

governs claims such as theirs that had not been discovered prior to the effective

date of the 2002 amendments. Plaintiffs contend that the only plausible

interpretation of the second sentence is that it refers to claims by persons who

were 26 years of age or older as of January 1, 2003, but who had not yet

discovered the connection between the childhood abuse and their injuries. We are

not persuaded.

We have concluded that any claim by persons who were 26 years of age or

older as of 1998 was time-barred prior to the 2002 amendment, whether the claims

had been discovered or not. Accordingly, we disagree that the second sentence of

30



section 340.1, subdivision (c), referring to claims that are not time-barred, applies

to such claims. Rather, the language to which plaintiffs refer appears to invoke the

rule we have discussed above, that an enlarged limitations period is said to apply

prospectively, and properly, to claims that have not lapsed as of the effective date

of the enactment.

Justice Corrigan‟s dissent also turns to the second sentence of section

340.1, subdivision (c), concluding that under that sentence, undiscovered claims

that previously were time-barred are not subject to the one-year limitation

appearing in the first sentence. As noted, that sentence provides: “Nothing in this

subdivision shall be construed to alter the applicable statute of limitations period

of an action that is not time barred as of January 1, 2003.” (Ibid.) According to

Justice Corrigan‟s dissent, plaintiffs‟ claims were not time-barred “as of January 1,

2003,” because on that date they benefitted — for the first time — from the

discovery provision of subdivision (a) that had been newly extended to the new

subcategory of defendant. Her dissent would conclude that the second sentence of

subdivision (c) means that undiscovered claims, no longer being time-barred under

the newly amended statute, are revived, and are not subject to the restriction of the

one-year revival clause.

We are not persuaded that the inferences drawn by Justice Corrigan‟s

dissent are supported by the language of the enactment. Again, the first sentence

of the subdivision provides that “any claim for damages that is permitted [under

the 2002 amendment] to be filed that would otherwise be barred as of January 1,

2003, solely because the applicable statute of limitations has or had expired, is

revived, and in that case, a cause of action may be commenced within one year of

January 1, 2003.” (§ 340.1, subd. (c), italics added.) This sentence plainly states

that any claim that is barred by the limitations period is revived — but “in that

case,” i.e., the case of any barred but revived claim, the action must be brought

31



within the one-year period. The “applicable statute of limitations period” for

plaintiffs‟ claims lapsed no later than 1998, and the “applicable . . . period” was

not subject to extension by virtue of their delay in discovery that their adult injury

was caused by childhood abuse.

The conclusion of Justice Corrigan‟s dissent seems to depend upon an

assumption that as of January 1, 2003, plaintiffs‟ claims were not time-barred

because subdivision (a) of section 340.1 itself operates to revive claims, but we

have found no such language in that provision. Prior to January 1, 2003, however,

plaintiffs‟ claims had already become time-barred. The 2002 amendment

extending the limitations period until three years after discovery did not change

that fact, in the absence of express language of revival. Subdivision (a) of section

340.1 did not provide such language, nor did the new language of subdivision (b).

The dissent by Justice Corrigan points to the phrase “as of January 1, 2003”

in the second sentence of section 340.1, subdivision (c). (Dis. opn. of Corrigan, J.,

post, at p. 3.) But the first sentence reviving lapsed claims also refers to claims

that would be barred as of January 1, 2003 but for the new law. The two sentences

do not seem to us to be speaking of different categories of claims requiring

revival, nor does the subdivision expressly differentiate between discovered and

undiscovered claims.

Rather, in our view the second sentence of subdivision (c) states solely

what the one-year revival period does not do. It is a savings clause that makes

plain in the statute a principle that exists in the case law — that an enlarged

limitations period is considered to apply prospectively and appropriately to actions

that are not already barred even if the conduct occurred prior to the enactment.

(See Andonagui, supra, 128 CalApp.4th at p. 440.) The second sentence of

subdivision (c) specifies that the limited one-year revival clause should not be

interpreted to cut off claims that have not lapsed and that need no revival —

32



claims, for example, of a plaintiff who was under age 26 when the amendment was

enacted and that had not been barred under the 1998 amendment, or claims as to

which the running of the statutory period may have been tolled by operation of law

(see e.g., §§ 351 [tolling during minority or insanity], 352.1 [two-year tolling

beyond accrual for incarcerated persons], 354 [tolling during war]).

Similar language had been used in 2000 when the Legislature enacted a

provision reviving certain otherwise time-barred insurance claims arising from the

1994 Northridge earthquake. (§ 340.9, subd. (a), added by Stats. 2000, ch. 1090,

§ 1, p. 8496.) The enactment revived any claim “which is barred as of the

effective date of this section solely because the applicable statute of limitations has

or had expired” — but only for one year. (Ibid.) Like the revival clause in section

340.1, section 340.9 “did nothing more than reopen the filing window, for a one-

year period, to those otherwise viable [claims] that had become time-barred.”

(Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 858.)

In language nearly identical to that found in the second sentence of section

340.1, subdivision (c), section 340.9 also provided: “Nothing in this section shall

be construed to alter the applicable limitations period of an action that is not time

barred as of the effective date of this section [i.e., Jan. 1, 2001].” (§ 340.9,

subd. (c).) The Court of Appeal in Cordova v. 21st Century Ins. Co. (2005) 129

Cal.App.4th 89 believed that the language of subdivision (c) of the statute — an

almost exact parallel of the language of the second sentence of section 340.1,

subdivision (c) — was merely intended to ensure that the one-year limit contained

in the new statute‟s revival provision did not restrict a plaintiff who, prior to the

effective date of the new enactment, already had a viable claim. (Cordova, supra,

at p. 98.) More colloquially, the Cordova decision explained: “[I]t is difficult to

imagine a purpose for subdivision (c) other than to say, in effect, if you could have

33



sued your insurer without the benefit of this statute nothing in this statute limits

your right to do so.” (Ibid.)

Plaintiffs in the present case could not have sued defendants without the

benefit of the 2002 amendments. Not only were they all over the age of 26 in

1998, they could not in any case have extended the limitations period on the

ground now asserted — a delay in discovery that their adult injuries had been

caused by childhood abuse. Without the benefit of the 2002 amendments,

plaintiffs did not have a defense to defendant‟s claim that their suit was barred by

the running of the statute of limitations.

Significantly, there is evidence that the Legislature had section 340.9,

subdivision (c) in mind as it drafted the 2002 amendment to section 340.1. (See

Sen. Com. on Judiciary, 3d reading analysis of Sen. Bill No. 1779 (2001-2002

Reg. Sess.) as amended June 17, 2002, p. 4 [noting § 340.9 as “[p]recedent” for

extending a limitations period and “reviv[ing] certain time-barred actions for a

one-year window period”]; Assem. Com. on Judiciary, Analysis of Sen. Bill

No. 1779 (2001-2002 Reg. Sess.) as amended June 6, 2002, p. 7 [noting that

§ 340.9 “provides victims of the 1994 Northridge earthquake an additional year to

file claims by reviving any insurance claim for quake-related damages which

would otherwise be barred”].) Even though the Legislature could not have been

aware of the Cordova opinion‟s interpretation when it adopted the 2002

amendments to section 340.1, the court‟s interpretation of the meaning of the

language the Legislature chose to use in both instances is quite persuasive.

In supplemental briefing filed after oral argument, plaintiffs have asserted

that such an interpretation of section 340.1, subdivision (c) is inconsistent with this

court‟s decision in Lantzy v. Centex Homes (2003) 31 Cal.4th 363. They reasoned

that in that case we concluded that section 337.15, with its 10-year limit (measured

from completion of construction) on latent construction defect claims, was phrased

34



in such absolute terms as to preclude application of the doctrine of equitable

tolling, By analogy, plaintiffs contended, because the age 26 cutoff contained in

section 340.1 was so absolute prior to the 2002 amendment that there would be no

possibility that claims prior to 2002 would have been tolled under statutory tolling

provisions, accordingly the second sentence of subdivision (c) must not refer to

such an eventuality. Our decision in Lantzy is inapposite. It did not speak to the

issue of statutory tolling (id. at p. 383, fn. 17), but to the judicial rule permitting

equitable tolling when the plaintiff has given notice of the claim and tolling would

not prejudice the defendant. Such a tolling rule would have been inconsistent with

various aspects of section 337.15 not found in section 340.1. Nor did the statute

under review in Lantzy contain language such as is found in section 340.1,

subdivision (c).

2. Subdivision (u)

Subdivision (u) (formerly § 340.1, subd. (s)),10 provides: “The

amendments to subdivision (a) of this section, enacted at the 1998 portion of the

1997-98 Regular Session, shall apply to any action commenced on or after January

1, 1999, and to any action filed prior to January 1, 1999, and still pending on that

date, including any action or causes of action which would have been barred by

the laws in effect prior to January 1, 1999. Nothing in this subdivision is intended

to revive actions or causes of action as to which there has been a final adjudication

prior to January 1, 1999.”


10

In 1999, the Legislature enacted subdivision (s) of section 340.1 (former

§ 340.1, subd. (s), as amended by Stats. 1999, ch. 120, § 1, pp. 1738-1739), and
the language of this subdivision was relettered as subdivision (u) in the 2002
amendment. (§ 340.1, subd. (u), as amended by Stats. 2002, ch. 149, § 1, pp. 5-6.)

35



Plaintiffs suggest that the Legislature‟s 2002 inclusion of subdivision (u)

demonstrates a legislative intent that subdivision (u) apply to revive any case filed

after January 1, 1999, against the subcategory of third party defendants described

in subdivision (b)(2). They argue that unless we adopt this interpretation, we will

be left with the conclusion that subdivision (u) constitutes surplusage — a

conclusion that should be avoided according to standard rules of construction. We

disagree with plaintiffs‟ analysis.

We have described the sequence of amendments that culminated in 1998

with a provision that, for the first time, supplied an enlarged limitations period for

claims against parties who were not the direct perpetrators of the alleged abuse.

(Ante, at pt. II.B.1.-4.) Under the 1998 amendment, a plaintiff henceforth would

have until the age of 26 (not age 19, as before; see pt. II.B.5., ante) to file the

action. We have explained that as of 1998, when a plaintiff reached the age of 26,

the statute raised an absolute bar to a suit against a third party defendant, and,

unlike cases against direct perpetrators, the 1998 enlargement would not recognize

discovery that adult injury was caused by childhood abuse to delay the running of

the limitations period past the age 26 cutoff.

It seems evident to us that section 340.1, subdivision (u) constituted an

express revival of claims that previously had lapsed but would otherwise now be

governed by the 1998 amendment — that is, claims by persons younger than age

26. Under subdivision (s) (as the provision was designated in 1999), a claim by a

person who was 20 in 1998, whose claim previously had lapsed at the age of 19,

would, under the 1998 amendments, have a revived claim and would be entitled to

sue a third party defendant. Far from constituting surplusage, the revival language

was still relevant in 2002 when it was redesignated as subdivision (u). For

example, a person who was under the age of 26 in 2003 (when the 2002

amendments went into effect), who had not yet filed suit against a third party

36



defendant (pursuant to the 1998 amendment) would still need the express revival

language of subdivision (u) since these claims would have lapsed when he or she

had turned 19 years of age.

The retention of the language of subdivision (u) in 2002 does not, as

plaintiffs suggest, indicate that it was retained to revive any claims filed against

the subcategory of third party defendants after January 1, 1999. Such an

interpretation becomes all the more unlikely when we recognize that in 2002,

when the Legislature adopted new subdivision (c) of section 340.1, it provided an

express revival clause for any lapsed claims identified in subdivision (b)(2), but

limited the revival to one year.

In support of their interpretation that subdivision (u) serves to revive any

claim against these third party defendants after January 1, 1999, plaintiffs rely

upon Bouley v. Long Beach Memorial Medical Center (2005) 127 Cal.App.4th

601 (Bouley). In that case, a statute governing standing in wrongful death actions

directed that “ „[t]his section applies to any cause of action arising on or after

January 1, 1993.‟ ” (Id. at p. 607, quoting § 377.60, subd. (d).) Although the

provision had been added in 1997 to remedy problems created by a 1996

amendment (Bouley, supra, at p. 607), the reviewing court concluded the 1997

provision nonetheless applied to render a subsequent 2002 amendment concerning

standing applicable to lawsuits instituted after the new amendment took effect.

The court pointed out that the Legislature must have retained the language for

some purpose, concluding that the retention of the older provision was intended to

make the 2002 amendments “operate retroactively.” (Id. at pp. 606, 607.)

The decision offers no guidance in the matter before us. Section 377.60

concerns standing, and is not a statute of limitations. As we have seen, statutes of

limitations are subject to their own rules when it comes to what is seen as a

retroactive application — that is, enlargement of the limitations period to include

37



lapsed claims. Thus, for example, the statutory language relied upon in Bouley,

supra, 127 Cal.App.4th at page 607 — “ „[t]his section applies to any cause of

action arising on or after January 1, 1993‟ ” — would not constitute sufficiently

express language of revival in the context of section 340.1. (David A., supra, 20

Cal.App.4th at p. 286.) By contrast, and contrary to the analysis appearing in the

Bouley decision, we have stated that to apply amended rules that concern solely

the issue of standing to cases brought after the amendment ordinarily is considered

a prospective application of the new rule. (Disability Rights, supra, 39 Cal.4th at

p. 232.) Finally, the language in Bouley did not contain language comparable to

that appearing in subdivision (u), that is, language expressly tying the subdivision

to the changes made in a particular year.

3. Prospective Application

The Court of Appeal concluded that plaintiffs‟ claims were timely within

the meaning of the 2002 amendment to section 340.1. The court acknowledged

that the 1998 amendment imposed an absolute age limit upon claims brought

against third parties. Nonetheless, in its view, the 2002 amendment applied

prospectively to persons like plaintiffs, who were more than 26 years of age in

1998 but discovered their injury subsequent to the effective date of the 2002

amendment. Under the court‟s interpretation, “[e]ffective 2003 . . . the Legislature

deleted the age 26 cutoff as against a narrow category of third party defendants

who had both the knowledge and the ability to protect against abusive behavior

but failed to do so. Anyone discovering that childhood abuse was the cause of the

injuries after 2003 could sue these — more culpable — defendants without regard

to the age 26 cutoff.”

Explaining the express revival clause of subdivision (c) of section 340.1,

the court added: “And, for those who had previously discovered the cause of their

injuries but could not sue under the prior law because of the age 26 cutoff

38



[citation], the Legislature offered a one-year window in which they could file their

claims [citation].” (Italics added.)

The Court of Appeal relied principally upon Nelson v. Flintkote Co. (1985)

172 Cal.App.3d 727 (Nelson). First, the Court of Appeal in the present case

pointed out that the timeliness of plaintiffs‟ claims had not been adjudicated

previously. The court maintained that in the absence of a judgment the claims

were not “extinguished,” but rather were “ „still pending or potential‟ ” when the

2002 amendments became effective and when the discovery of the cause of

plaintiffs‟ adult injuries occurred. (Italics added.) For this reason the Court of

Appeal believed it was irrelevant that under prior law, plaintiffs‟ claims had

accrued and lapsed prior to the effective date of the 2002 enactment. The court

explained: “Because no court has previously adjudicated the timeliness of

plaintiffs‟ action, the claims are considered „still pending or potential and [are]

governed by the changed rules for accrual.‟ [Citation.] And, the fact that prior

limitations periods may have expired before section 340.1, subdivision (b)(2)‟s

more liberal discovery rule became effective and before any complaint was filed

does not bar plaintiffs‟ action, because discovery of the cause of plaintiffs‟

psychological injuries had not yet occurred. Therefore, there was no

„extinguishment [and] there is no problem of an impermissible retroactive revival

of a barred cause of action impairing defendant[‟s] vested rights.‟ ”

Further, according to the Court of Appeal, it was significant that the

amendments to section 340.1 were merely procedural, affecting remedies but not

substantive rights. Because the amendments were procedural, in the court‟s view

the law permitted them to apply prospectively to pending or future litigation, even

if that litigation is based upon conduct that took place before the amendment took

effect.

39



The Court of Appeal‟s reliance upon Nelson, supra, 172 Cal.App.3d 727, is

misplaced. That decision concerned an enlargement of a special limitations period

for asbestos-related injuries governed by section 340.2. The reviewing court held

that the enlarged limitations period applied to a claim even though the claim had

lapsed under the former limitations period prior to the effective date of the new

enactment. As the Court of Appeal in the present case explained, the Nelson court

reached this conclusion in large part because the claim had not been

“extinguished” by a judgment prior to the effective date of the new enactment.

The Nelson court added that applying the new enactment “does not even really

involve an extension of the prior statute‟s one-year period of limitation. Rather, it

adopts a different standard for accrual, postponing the commencement of the

running of the one-year limitation.” (Nelson, supra, at pp. 732-733.)

The Nelson court relied in part upon uncodified language enacted with

section 340.2: “The provisions of this act shall apply to those causes of action

which accrued prior to the change in the law made by this act and have not

otherwise been extinguished by operation of law.” (Stats. 1979, ch. 513, § 2,

p. 1690, italics added.) The Nelson court, relying upon prior intermediate court

authority ascertaining legislative intent, understood the specific phrase

“ „ “extinguished by operation of law” ‟ ” to refer to a claim that had been finally

adjudicated as barred by the statute of limitations. (Nelson, supra, 172 Cal.App.3d

at pp. 732-733.) In the Nelson court‟s estimation, because the timeliness of the

plaintiff‟s claims had not been adjudicated, the claims were “still pending or

potential and [are] governed by the changed rules for accrual.” (Id. at p. 732.)

The Nelson decision is distinguishable from the present case because it

turned in part upon the language of the particular statute there at issue — language

that is not found in section 340.1. Specifically, unlike the Legislature‟s reference

to claims that are “extinguished by operation of law” in connection with section

40



340.2 (Stats. 1979, ch. 513, § 2, p. 1690), as we have seen, in the present case the

various amendments to section 340.1 refer to “revival” of claims that have

“lapsed” by virtue of the “expiration” of the statute of limitations. Given the

significant differences between the language and history of sections 340.1 and

340.2, the Nelson court‟s analysis of the uncodified language of section 340.2 is

not helpful to the present case.

The Nelson court also reasoned that because statutes of limitation are

procedural, they are “not subject to the general rule that statutes should not be

retroactive” (Nelson, supra, 172 Cal.App.3d at p. 733), a point echoed by the

Court of Appeal in the present case. Both courts also relied upon their

understanding that the expiration of the limitations period did not afford

defendants a vested right of repose. (Nelson, supra, at pp. 732, 733-734.) But

notwithstanding the emphasis placed on both these points by the Nelson court and

the Court of Appeal in the present case, this court has explained that when we are

called upon to determine whether a statute permissibly may apply retroactively,

the distinction between procedural and substantive rules is not particularly helpful.

(Disability Rights, supra, 39 Cal.4th at p. 231.) Similarly, our analysis in the

present case does not depend upon identifying any vested rights on the part of

defendant; indeed, we have acknowledged that ordinarily the Legislature has

authority to enlarge limitations periods even as to lapsed claims, as long as it does

so expressly or otherwise makes its intent unmistakably clear.

Moreover, we reject the suggestion made by the Court of Appeal in the

present case that, for the purpose of deciding the applicability of a new, enlarged

limitations period, the general rule is or should be that the new law applies unless

there is a judgment upholding a statute of limitations defense. As we have

explained, well-established case law establishes that a statute enlarging a

limitations period is not interpreted to revive claims as to which the prior

41



limitations period already had run before the effective date of the enactment — in

the absence of an express statement of revival. In none of those cases had there

been a prior judgment upholding a statute of limitations defense. Rather, the cases

have spoken of the “lapsing” of the claim or the “running” or “expiration” of the

limitations period. (See, e.g., Douglas Aircraft, supra, 58 Cal.2d at pp. 464-466;

Krupnick, supra, 115 Cal.App.4th at pp. 1028-1029; Gallo, supra, 200 Cal.App.3d

at p. 1378; see also David A., supra, 20 Cal.App.4th at pp. 284, fn. 4, 285-286

[explaining that a lapsed claim is one as to which the limitations period has run,

giving rise to a potential defense, and objecting to the use of the term “barred” or

“extinguished” to refer to lapsed or expired claims rather than claims that have

been extinguished by a judgment]; 58 Cal.Jur.3d, supra, Statutes, § 38, pp. 418-

419.)

Indeed, there would be little need for the Legislature to trouble itself with a

revival clause at all when it decided to enlarge a limitations period, if a claim

could lapse for the purpose of expanded limitations periods only after a judgment

had been entered sustaining a statute of limitations defense. Even without a

revival clause, ordinarily a final judgment is conclusive. (See Plaut v. Spendthrift

Farm, Inc. (1995) 514 U.S. 211, 227; People v. Bunn (2002) 27 Cal.4th 1, 19;

Perez v. Roe 1, supra, 146 Cal.App.4th at pp. 185-188 [interpreting § 340.1,

subd. (d)(1) and observing that “[o]nce the judgments . . . were upheld on appeal

. . . they became final for separation of powers purposes and could not be

legislatively revived”].)

We do not believe that the Nelson decision stands broadly for what would

be a remarkable proposition — that in no case does a claim lapse by virtue of the

running of the statute of limitations until there is a judicial determination that the

claim has become untimely. Contrary to the policy in favor of repose evinced by a

statute of limitations, such a rule would require defendants who wish to achieve

42



repose and to avoid potential future expansion of the limitations period to bring

actions for declaratory judgment with respect to claims no plaintiff had yet made.

The policy in favor of permitting defendants to “assume” that an expired claim

will not be revived would not be served by such a rule. (See Gallo, supra, 200

Cal.App.3d at p. 1378 [the reason for the rule is the “unfairness in reviving a cause

after the prospective defendant has assumed its expiration and has conducted his

affairs accordingly”].)

In addition, the interpretation offered by the Court of Appeal basically

relies upon the discovery rule of section 340.1, subdivision (a) to renew the

accrual of a lapsed claim, in conflict with the principle that we do not infer intent

to revive lapsed claims from broad, general language. And as explained in the

previous part, the Legislature‟s previous experience with the need for an express

revival clause makes us confident that in 2002 the Legislature did not suppose that

the delayed discovery language it extended to a certain category of claims by itself

revived lapsed claims.

Nor are we persuaded by plaintiffs‟ position at oral argument that

subdivision (a) applies prospectively to their claims because their adult

psychological injuries were so separate from the original childhood injuries that a

new claim accrued when they discovered the connection between their adult

injuries and the childhood abuse. In essence, the claim is that plaintiffs had no

need for the revival of their previously barred claims.

As we have seen, plaintiffs could have established defendant‟s liability for

its negligence in retaining Father Broderson when the abuse occurred. (See ante,

fn. 4.)

Moreover, the history and wording of section 340.1 does not support

plaintiffs‟ argument. In 1990, the Legislature amended the statute of limitations

applicable to “any civil action for recovery of damages suffered as a result of

43



childhood sexual abuse” to recognize that a delayed awareness that adult

psychological injury was caused by childhood abuse would justify tolling the

limitations period for the underlying claim against the perpetrator. (§ 340.1,

subd. (a), as amended by Stats. 1990, ch. 1578, § 1, p. 7550.) But the amendment

did not treat adult psychological injury as an entirely separate and new injury.

Rather, the new language was intended to afford victims a longer period in which

to become aware of their injuries. (Debbie Reynolds, supra, 25 Cal.App.4th at

p. 232.)

In 1998, when the Legislature decided that a plaintiff‟s delayed discovery

that adult psychological injury was caused by childhood abuse also should affect

the running of the limitations period for claims against certain third parties, the

enactment did not recognize a new and different injury as to which a new cause of

action accrued. Indeed, the enactment specified that the amendments did not

“create a new theory of liability.” (§ 340.1, subd. (r), added by Stats. 1998,

ch. 1032, § 1, p. 7788, now § 341, subd. (t).)

Finally, we observe that section 340.1 purports to govern the limitations

period for any civil action based upon damages suffered as the result of childhood

sexual abuse. There is no indication in the statute itself that the Legislature

viewed adult psychological injury caused by childhood abuse as a new and

separate injury giving rise to a new cause of action with its own accrual and

limitations period. Rather, the Legislature made a series of efforts to afford

victims of childhood abuse enough time to discover the connection between their

adult suffering and the abuse. If the Legislature had viewed adult psychological

suffering as a separate injury giving rise to a new cause of action with a new

limitations period, it would be anomalous for the Legislature to restrict the

availability of the delayed discovery rule for third party claims to persons under

the age of 26, as the Legislature did in 1998. Similarly, even under the statute as

44



amended in 2002, only claims against a certain subcategory of third parties could

be brought after the plaintiff reaches age 26. This seems inconsistent with the

view that adult injury constitutes a separate and distinct injury giving rise to a new

cause of action with its own limitations period.11

The Legislature is charged with balancing the interests of injured persons

and third party defendants. Although, as we have discussed, it may revive lapsed

claims, the language and history of the 2002 enactment do not plainly indicate that

the Legislature in fact revived lapsed claims to any extent beyond what it provided

expressly in subdivision (c) of section 340.1. In a series of enactments the

Legislature carefully enlarged the limitations period applicable to direct

perpetrators of sexual abuse, specified to what extent the delayed discovery rule

applied, used express language to indicate when actions that had expired during

the running of the statute of limitations would be revived — even when the statute


11

We also observe that if adult psychological injury were a separate injury

giving rise to a cause of action accruing upon discovery of the connection between
the adult injury and childhood abuse, presumably Shirk should have been litigated
and resolved differently. (Shirk, supra, 42 Cal.4th 201.) There we pointed out
that causes of action accrue for childhood sexual abuse at the same time for the
purpose of claims against public entities under the government claims statute (see
Gov. Code, § 911.2), and for the purpose of an ordinary civil action. (Shirk,
supra, at p. 210.) The plaintiff in Shirk contended that her claim under the
government claims statute was timely because she had only recently discovered
that her adult psychological injury was caused by childhood sexual abuse by one
of the defendant‟s employees. (Id. at p. 206.) We said that she could not take
advantage of the revival period of section 340.1, subdivision (c) because it did not
refer to claims made under the government claims statute. (Shirk, supra, at
pp. 212-214.) But if the plaintiff‟s adult psychological injury were a separate
injury giving rise to a new cause of action with its own accrual date, the plaintiff
in Shirk would not have needed to rely upon the one-year revival period of
subdivision (c) — her claim would not have accrued at all, whether as a civil
action or under the government claims statute, until she became aware of her adult
injury.

45



also contained a discovery rule — and adopted a limitations period that plainly

barred the bringing of actions against third parties by persons who had reached the

age of 26. When, in 2002, the Legislature made a narrow exception to the age 26

cutoff for a subcategory of third party defendants, it carefully specified what

should happen to any claim that had lapsed when the plaintiff reached the age of

26; namely, such claims could be brought, but only during the one-year revival

period. Under the circumstances, we do not find a legislative intent that the

extension of subdivision (a) of section 340.1 to a subcategory of third party claims

also was intended to revive lapsed claims.

4. Common Law Delayed Discovery Principles

The Court of Appeal also endorsed the idea that despite the language of

section 340.1 as it existed after the 1998 amendment, with its decree that

plaintiffs‟ claims against third parties had lapsed when they reached 26 years of

age, plaintiffs nonetheless had claims that were not subject to section 340.1 — that

is, that they had claims subject solely to common law delayed discovery

principles. We are not persuaded, however, that as a general matter, common law

delayed discovery principles survive in parallel with the very specific and

increasingly expansive discovery rules enacted as part of section 340.1.

As noted previously, the 1986 and 1990 versions of section 340.1 expressly

permitted the application of common law delayed discovery principles. However,

in 1994, the Legislature removed reference to common law delayed discovery

principles from section 340.1.12


12

(See ante, at p. 20; compare former § 340.1, subd. (a), as amended by

Stats. 1990, ch. 1578, § 1, p. 7550 with former § 340.1, as amended by
Stats. 1994, ch. 288, § 1, p. 1930; see also Historical and Statutory Notes, 13C
West‟s Ann. Code Civ. Proc., supra, foll. § 340.1, p. 173.)

46



We may infer that the Legislature intended to supplant common law

delayed discovery principles when it deleted references to these principles. “As a

general rule, in construing statutes, „[w]e presume the Legislature intends to

change the meaning of a law when it alters the statutory language [citation], as for

example when it deletes express provisions of the prior version [citation].‟ ”

(People v. Mendoza (2000) 23 Cal.4th 896, 916.) Thus we do not believe the

Legislature intended that common law delayed discovery principles should apply

to cases governed by section 340.1.

Further evidence of legislative intent to eliminate common law delayed

discovery principles appeared in 1998, when the Legislature first enlarged the

limitations period for claims against third party defendants, but imposed an

absolute limit of age 26 for such claims while retaining a statutory discovery rule

for actual perpetrators. The deletion of the former reference to common law

delayed discovery principles, along with the addition of a strict age limit for some

cases but a statutory discovery rule for others, indicates to us that the Legislature

intended section 340.1, not common law delayed discovery principles, to govern

the application of the statute of limitations to all late-discovered claims based upon

childhood sexual abuse. (See Moore, supra, 112 Cal.App.4th at p. 382 [“An

express legislative provision for circumstances which will toll a statute excludes,

by necessary implication, all other exceptions. [Citation.] Accordingly, the

outside limit of [the relevant statute of limitations] is not subject to delayed

accrual or tolling except to the extent that the Legislature has expressly so

provided”]; see also Krupnick, supra, 115 Cal.App.4th at pp. 1029-1030 [an

express revival clause applicable to one class of plaintiffs shows that other

exceptions to the general rule were not contemplated]; Debbie Reynolds, supra, 25

47



Cal.App.4th at p. 233 [“When „a statute enumerates the persons or things to be

affected by its provisions, there is an implied exclusion of others‟ ”].)13

In any event, plaintiffs assert that their action is timely because they were

not aware that their adult psychological injury was caused by childhood abuse.

That theory was not accepted under the common law as a ground for application of

the delayed discovery rule. (See ante, fn. 5.) Such an assertion is recognized

solely by virtue of section 340.1.

5. Legislative History and General Policy

(a) Legislative history of the 2002 amendment

The Court of Appeal turned to the legislative history of the 2002

amendment in support of its analysis, and the dissenting opinions also have cited

this record.14 As we shall demonstrate, however, the relevant portions of these

materials concern what the enactment of the bill would accomplish prospectively.

Succeeding paragraphs, however, demonstrate that the Legislature was well aware


13

The David A. court‟s reference to a possible surviving delayed discovery

theory (David A., supra, 20 Cal.App.4th at p. 288) is not to the contrary, because
that decision predated the 1994 amendments deleting all reference to any
nonstatutory delayed discovery principles.

14

The legislative history consists primarily of (1) an analysis prepared for the

Senate Judiciary Committee for its initial hearing on the bill proposing the
amendments, conducted May 2, 2002 (Sen. Com. on Judiciary, Analysis of Sen.
Bill No. 1779 (2001-2002 Reg. Sess.) as amended May 2, 2002, for hearing on
May 7, 2002; (2) an Assembly Committee on Judiciary bill analysis prepared for
its hearing dated June 11, 2002, concerning the bill as amended June 6, 2002, with
substantial material copied from the Senate analysis noted above. (Assem. Com.
on Judiciary, Analysis of Sen. Bill No. 1779, supra, as amended June 6, 2002.)
Subsequent analyses appear to repeat the first two items in substantial part. (See,
e.g., Sen. Com. on Judiciary, 3d reading analysis of Sen. Bill No. 1779, supra, as
amended June 17, 2002; Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis
of Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as amended June 17, 2002.)

48



that the revival of lapsed claims was a separate matter that was governed by the

language of section 340.1, subdivision (c) — indeed, that it was a separate matter

requiring both a cautious balancing of policy and express language of revival.

The Court of Appeal cited the following evidence of legislative intent that

appeared in an analysis submitted to the Senate Committee on the Judiciary:

“This bill is essential to ensure that victims severely damaged by childhood sexual

abuse are able to seek compensation from those responsible. While current law

allows a lawsuit to be brought against the perpetrator within three years of

discovery of the adulthood aftereffects of the childhood abuse, current law bars

any action against a responsible third party entity . . . after the victim‟s 26th

birthday. Unfortunately . . . for many victims their adulthood trauma does not

manifest itself until well after their 26th birthday, when some event in their current

life triggers remembrance of the past abuse and brings on new trauma. [¶] For

example, a 35-year old man with a 13-year old son involved in many community

and sporting events, may begin to relive his nightmare of being molested by an

older authoritarian figure when he was 13 years old and about to enter puberty.

While a lawsuit against the perpetrator is possible, that person may be dead, may

have moved away to places unknown, or may be judgment-proof. However, any

lawsuit against a responsible third party is absolutely time-barred after the victim

passes this 26th birthday. This arbitrary limitation unfairly deprives a victim from

seeking redress, and unfairly and unjustifiably protects responsible third parties

from being held accountable for their actions that caused injury to victims.”15


15

(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779, supra, as

amended May 2, 2002; see also Assem. Com. on Judiciary, Background
Information Worksheet on Sen. Bill No. 1779 (2001-2002 Reg. Sess.) June 5,
2002, bill dig., p. 1.)

49



This language explained why the proponents of the 2002 amendment felt

the bill was necessary, but it is in a subsequent, separate four-page discussion that

the analysis considers the problem of revival of lapsed claims (under the heading

“Extending limitations period past age 26 and reviving time-barred actions for

one-year-window period has precedent”).16 It is this second portion of the

analysis that describes the one-year revival period contemplated by section 340.1,

subdivision (c).

Indeed, the revival section of the analysis supports our conclusion, since it

acknowledges the need for express language of revival, carefully describing the

Legislature‟s authority to revive lapsed claims “ „by express legislative

provision.‟ ” Through the following language the legislative history strongly

suggests an understanding that a person with a late-discovered claim would have

only the one-year revival period in which to institute an action. According to the

analysis prepared for the Senate Committee on the Judiciary: “In other words, this

bill would provide those victims who discovered their adulthood trauma after age

26, whose action has been barred by the current statute of limitations, a one-year

window to bring a case against a third party that otherwise would be time-barred.”

(Italics added.)17

The analysis also carefully weighs policy considerations respecting the

bill‟s language of revival, balancing the defendant‟s interest in repose and the

victim‟s interest in compensation. It acknowledges that limitations periods “ „are

designed to promote justice by preventing surprises through the revival of claims


16

(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779, supra, as

amended May 2, 2002, p. 6.)

17

(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779, supra, as

amended May 2, 2002, p. 6.)

50



that have been allowed to slumber until evidence has been lost, memories have

faded, and witnesses have disappeared. The theory is that even if one has a just

claim it is unjust not to put the adversary on notice . . . within the period of

limitations and the right to be free of stale claims in time comes to prevail over the

right to prosecute them.‟ ”18

The Court of Appeal cited additional language from the legislative

materials: “ „People who discover their adulthood trauma from the molestation

after the effective date of the bill will have three years from the date the victim

discovers or reasonably should have discovered that the adulthood trauma was

caused by the childhood abuse.‟ ”

As noted in the Court of Appeal‟s opinion, however, the quoted legislative

statements appear under the heading “ „WHO CAN SUE AFTER THE BILL

PASSES AND WHEN,‟ ” under the subheading “Prospective application.”

(Italics added, underscoring omitted.) However, under the same general heading,

but under its own subheading, “Retroactive application and revival of lawsuits,”

the material recounts that “the bill would create a one-year window for victims to

bring a lawsuit that would otherwise be barred by the age 26 limitation.19

Again, the report strongly supports rather than detracts from our conclusion.

Plaintiffs refer to materials in the legislative history stating that “[t]his bill

would provide that the absolute age of 26 limitation in actions against a third party

does not apply, and the broader „within three years of discovery‟ statute of


18

(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779, supra, as

amended May 2, 2002, p. 6.)

19

(Assem. Com. on Judiciary, Background Information Worksheet on Sen.

Bill No. 1779, supra, June 5, 2002, bill dig., p. 0, italics added.)

51



limitations in subdivision (a) applies” to defendants falling within section 340.1,

subdivision (b)(2).20

Again, however, the quoted language merely describes the prospective

effect of the bill. The language is followed by a description of how a lapsed claim

may be revived: “This bill would provide that, notwithstanding any other

provision of law, any action for damages against a third party as provided above

which is barred as of the effective date of this bill solely because the applicable

statute of limitations has expired, is revived and a cause of action thereupon may

be brought if commenced within one year of the effective date of this bill.”21 Thus

the analysis once again identifies the language of section 340.1, subdivision (c) as

covering the subject of revival of lapsed claims.

This history displays an evident understanding on the part of the

Legislature that, prior to the 2002 amendment, all claims against third parties

lapsed once the plaintiff reached the age of 26. These materials also indicate that

the Legislature carefully considered what was to be the fate of lapsed claims and

intended that new section 340.1, subdivision (c) should govern such claims. The

Legislature was aware of settled law expounding the distinction between

prospective application and retroactive application of expanded limitations

periods. In sum, we disagree with plaintiffs that “[i]n light of the Committee‟s


20

(See Sen. Rules Com., Analysis of Sen. Bill No. 1779, supra, as amended

June 17, 2002, p. 3 [also appearing, among other places, in Sen. Rules Com.,
Analysis of Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as amended May 15, 2002,
pp. 3-4; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779, supra, p. 3].)

21

(Sen. Rules Com., Off. Of Sen. Floor Analyses, Analysis of Sen. Bill

No. 1779, supra, as amended June 17, 2002, p. 3, italics added [also appearing,
among other places, in Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779,
supra, as amended May 2, 2002, p. 3].)

52



description of the effect of [Senate Bill No.] 1779, it appears that the word

„prospective‟ was used to demarcate between individuals who had made the

connection contemplated by section 340.1(a) as of the effective date of [Senate

Bill No.] 1779, and those who had not; as opposed to dividing individuals who

were over the age of 26 on January 1, 2003 from those who were younger.”

(b) General policy

The Court of Appeal believed its interpretation best served the language

and purpose of the enactment, adding that as a remedial statute, section 340.1

should be construed broadly to carry out its overall purpose. The appellate court

referred to Doe v. City of Los Angeles, supra, 42 Cal.4th 531, in which we

characterized section 340.1, subdivision (b)(2) as remedial, and stated that “the

Legislature intended [it] to be construed broadly to effectuate the intent that

illuminates section 340.1 as a whole; to expand the ability of victims of childhood

sexual abuse to hold to account individuals and entities responsible for their

injuries.” (Doe v. City of Los Angeles, supra, at p. 536.) We are urged to honor

the salutary remedial purpose served by the expanding limitations period set out in

section 340.1 and to give effect to an evident legislative intent — in the wake of

public exposure of sexual abuse by priests against children that had been condoned

and covered up by the Catholic Church for so many years — to call to account

those persons and entities that committed or condoned such heinous offenses

against children.

We acknowledge the important remedial purpose of section 340.1 and that

the measure should be interpreted in a manner that will carry out its apparent

intent. Reliance upon the general purpose of the enactment, however, does not

alter the circumstance that the Legislature chose to deal with the problem of lapsed

claims by offering a one-year window period reviving those claims. Moreover,

the Legislature has not abolished the limitations period for childhood sexual abuse

53



claims, and even a liberal construction does not change the general rule that an

enlarged limitations period does not apply to lapsed claims in the absence of

express language indicating legislative intent to revive lapsed claims. (See

DiGenova, supra, 57 Cal.2d at p. 174 [a rule of liberal construction does not

require that a statute should be interpreted to apply retroactively]; Davis v. Harris

(1998) 61 Cal.App.4th 507, 512 [rule of liberal construction of remedial statutes

“does not mean that a court may read into the statute that which the Legislature

has excluded, or read out that which it has included”]; Gallo, supra, 200

Cal.App.3d at p. 1383 [simply because the Legislature intended to afford

additional protection to victims by lengthening the statute of limitations does not

mean “the Legislature also intended to revive already expired causes. These are

different matters”].)

Moreover, as we have seen, over the years the legislative expansion of the

limitations period has been measured and deliberate, with due concern for

affording adequate and reliable notice to potential defendants, and “promot[ing]

justice by preventing surprises through the revival of claims that have been

allowed to slumber until evidence has been lost, memories have faded, and

witnesses have disappeared” — demonstrating a recognition that “the right to be

free of stale claims in time comes to prevail over the right to prosecute them.”22

The dissenting justices posit that the Legislature could not reasonably have

intended to supply only a one-year revival period for claims that were, after all,

unknown to potential plaintiffs. But we have not been able to identify in the

language of the statute an intent to do anything else. Moreover, it would not be


22

(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779, supra, as

amended May 2, 2002, p. 62.)

54



unreasonable or anomalous to provide only a one-year revival period for hitherto

undiscovered claims. Although we are unreservedly sympathetic to the plight of

persons who were subjected to childhood sexual abuse, we note that the

preexisting limitations period, along with the one-year revival period created by

the 2002 amendments, afforded victims a very considerable time following the

abuse in which to come to maturity, or even middle age, and discover the claim.

As for the assertion that the purpose of the 2002 amendment of section

340.1 would be defeated if it were interpreted to apply prospectively to the

subcategory of third party defendants identified by the 2002 amendment, we are

not convinced. A prospective application of the expanded period in which to bring

claims against this subcategory of third party defendants certainly has an effect in

that it deters negligence on the part of third parties in the future — the Legislature

could reasonably believe such an application would encourage various entities,

beginning on the effective date of the 2002 amendment, to ensure that they would

always afford appropriate protection for their charges, in order to avoid the very

open-ended risk that failure to protect a child could subject the entity to suit for an

indefinite period.

That the Legislature has decided that from now on, third party defendants

may be liable for a relatively indefinite period in the future — perhaps for a child

victim‟s entire lifetime — does not mean that the Legislature must have intended

the same extensive period of liability to apply to all third party malfeasance that

occurred, for example, 60, 70, or more years in the past, without any limitation.

The Legislature was aware that it was striking a balance between the strong

interest of victims of abuse in redress of grievous injury and the burden on third

party defendants — who may have discarded records in reliance on prior law and

lost access to witnesses — of being required to defend stale claims. We add that it

is not unheard of for the Legislature to impose a strict limit even on undiscovered

55



but deserving claims (see §§ 337.15 [10-year limit on latent, i.e., undiscovered,

construction defect claims], 340.5 [limitations period of three years from injury or

one year from discovery for medical malpractice claims]; Pen. Code, § 803,

subd (g) [for offenses committed prior to Jan. 1, 2002, a criminal complaint may

be filed within one year of the date on which the identity of the suspect is

established by DNA testing if the evidence was analyzed no later than Jan. 1,

2004].)

Plaintiffs also ask us to consider the public policy in favor of disposing of

litigation on the merits rather than on procedural grounds that would result in the

forfeiture of a plaintiff‟s rights. We acknowledge the policy in favor of disposing

of claims on the merits but must also give weight to the equally strong policy in

favor of affording repose — a policy also considered by the Legislature. (See

Adams v. Paul (1995) 11 Cal.4th 583, 592 [“ „even if one has a just claim it is

unjust not to put the adversary on notice to defend within the period of limitation

and . . . the right to be free of stale claims in time comes to prevail over the right to

prosecute them‟ ”]; Krusesky v. Baugh (1982) 138 Cal.App.3d 562, 566 [“The

policy behind statutes of limitations is as meritorious as the policy of trying cases

on their merits”].)23


23

Plaintiffs‟ contention that they should be permitted to proceed against

defendant upon a vicarious liability theory was not reached in the Court of Appeal
and for that reason is not discussed here.

56





III. DISPOSITION

The judgment of the Court of Appeal is reversed and the matter is

remanded to that court for further action consistent with this opinion.

CANTIL-SAKAUYE, C. J.

WE CONCUR:


KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.

57












DISSENTING OPINION BY CORRIGAN, J.

I respectfully dissent. The majority concludes that plaintiffs‟ claims had to

be brought in 2003, even though they had not yet been discovered. It relies on the

rule that an enlarged limitations period will not apply to lapsed claims unless the

Legislature employs express language of revival. However, Code of Civil

Procedure section 340.1, subdivision (c) does expressly revive lapsed claims,

including plaintiffs‟.1 The question before us is not whether the Legislature

intended a retroactive application of the 2002 amendments. Plainly, it did. The

question is whether all revived claims are subject to the one-year window period

specified in section 340.1(c). The majority holds that they are. I disagree.

In 2002, all child molestation claims against third party defendants were

barred after a plaintiff reached the age of 26. (Former § 340.1, subd. (b), as

amended by Stats. 1998, ch. 1032, § 1, p. 7785.) The age 26 limitation is still the

general rule. However, in the amendments now before us, effective January 1,

2003, the Legislature extended the limitations period by creating an exception to

the age-26 cutoff for claims against some third parties. (§ 340.1, subd. (b)(2),

added by Stats. 2002, ch. 149, § 1, pp. 752-753.) Plaintiffs over the age of 26 now

have three years from the date they discover an adult psychological injury to bring


1

Further statutory references are to the Code of Civil Procedure. Hereafter, I

refer to section 340.1, subdivision (c) as section 340.1(c).

1



suit against a limited class of third party defendants: those who knew or should

have known about child molestation by an employee or agent and failed to take

remedial action. (§ 340.1, subds. (a) & (b)(2).)2

The 2002 Legislature also revived lapsed claims, providing in section

340.1(c): “any claim . . . that is permitted to be filed pursuant to paragraph (2) of

subdivision (b) that would otherwise be barred as of January 1, 2003, solely

because the applicable statute of limitations has or had expired, is revived, and, in

that case, a cause of action may be commenced within one year of January 1,

2003.” The claims revived by section 340.1(c) are those held by plaintiffs who

reached the age of 26 before January 1, 2003. These claims “would otherwise be

barred as of January 1, 2003.” (§ 340.1(c).) Although the Legislature provided a

one-year window period for bringing suit, section 340.1(c) also included a savings

clause: “Nothing in this subdivision shall be construed to alter the applicable

statute of limitations period of an action that is not time barred as of January 1,

2003.” (Italics added.)

In my view, plaintiffs‟ claims are exempted from the window period by the

savings clause. As of January 1, 2003, they were not time-barred; “the applicable

statute of limitations period” at that point was three years from the date of

discovery. (§ 340.1(c).) The clause imposing a one-year window period “shall

[not] be construed to alter” that limitations period. (Ibid.) The claims that were

time-barred as of January 1, 2003, and therefore subject to the window period,


2

Due to the exception provided in section 340.1, subdivision (b)(2), the

limitations period provided in section 340.1, subdivision (a) applies to claims by
plaintiffs over the age of 26 against the designated class of third party defendants:
“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.”

2



were those already discovered by plaintiffs over the age of 26. “[T]he applicable

statute of limitations” for these claims was the one in effect at the time of

discovery, and they were revived only for the window period. (Ibid.) Later-

discovered claims, however, are “not time barred as of January 1, 2003” and the

window period does not alter the limitations period in effect when they are

discovered. (Ibid.) The majority suggests this analysis attributes a revival effect

to section 340.1, subdivision (a). (Maj. opn., ante, at p. 31.) It does not. The first

sentence of section 340.1(c) expressly revives plaintiffs‟ claims, and the second

sentence takes them out of the window period.

The majority reasons that the first and second sentences of section 340.1(c)

use the same terms, and therefore must address the same category of claims. (Maj.

opn., ante, at p. 32.) However, the Legislature actually employed significantly

different phrasing in the revival and savings clauses of section 340.1(c). All

lapsed claims are covered by the revival clause, because they “would otherwise be

barred” as of that date. (§ 340.1(c), italics added.) That is, but for the 2002

amendments, they would have been barred. However, in the savings clause the

Legislature did not refer to claims “otherwise barred,” or claims that would have

been barred under former law.3 Instead, it preserved claims “not time barred as


3

In this respect, the 2002 Legislature departed from its past practice in

framing revival provisions for section 340.1(c). In 1986, 1994, and 1999, it spoke
only in terms of claims that would have been barred by the previously existing
statutes of limitation. (See former § 340.1, subd. (e), added by Stats. 1986, ch.
914, § 1, p. 3166 [reviving “any action which would be barred by application of
the period of limitation applicable prior to January 1, 1987
” (italics added)];
former § 340.1, subd. (o), added by Stats. 1994, ch. 288, § 1, p. 1930, now
§ 340.1, subd. (r) [reviving any action otherwise barred by the period of
limitations in effect prior to January 1, 1991
” (italics added)]; former § 340.1,
subd. (s), added by Stats. 1999, ch. 120, § 1, pp. 1738-1739, now § 340.1, subd.

(footnote continued on next page)

3



of” the effective date of the new limitations period, thereby allowing claims

accruing on or after that date to be brought under the new limitations scheme.

(§ 340.1(c).)

Thus, plaintiffs‟ claims are timely under the terms of section 340.1 and the

ordinary rules of accrual. The discovery rule provides that a cause of action

accrues, and the statute of limitations is triggered, when the plaintiff “has, or

should have, inquiry notice of the cause of action.” (Fox v. Ethicon Endo-Surgery,

Inc. (2005) 35 Cal.4th 797, 807.) The Legislature was familiar with the

application of the discovery rule in this context, from its experience with earlier

amendments discussed in David A. v. Superior Court (1993) 20 Cal.App.4th 281

(David A.). The David A. plaintiff tried to revive her lapsed claim under a

provision stating only that the 1990 amendments applied to “any action

commenced on or after January 1, 1991.” (Former § 340.1, subd. (k), added by

Stats. 1990, ch. 1578, § 1, p. 7552; see David A., at p. 286.) The court rejected the

attempt, observing that the legislative history showed the Legislature had not

meant to revive lapsed claims, and that the “oblique” statutory language could not

be construed to revive lapsed claims without contravening the rule of construction

requiring express language of revival. (David A., at pp. 286-288.)4


(footnote continued from previous page)

(u) [reviving any action or causes of action which would have been barred by the
laws in effect prior to January 1, 1999
” (italics added)].)


The majority reads section 340.1(c) as if it continued the pattern of the

earlier revival clauses, treating all lapsed claims alike. But because the Legislature
used different terms in 2002, it is reasonable to conclude that it intended a
different result.
4

The Legislature promptly responded to David A. by amending section 340.1

to make it plain that “The amendments to this section enacted at the 1990 portion
of the 1989-90 Regular Session [i.e., the amendments at issue in David A.] shall
apply to any action commenced on or after January 1, 1991, including any action

(footnote continued on next page)

4



However, the David A. court went on to state that its holding would not

apply to a claim subject to postponed accrual, and to note that the pleadings

before it were insufficient to support a claim of delayed discovery. (David A.,

supra, 20 Cal.App.4th at p. 288.) Accordingly, in 2002 the Legislature had every

reason to believe that, as in David A., future claims subject to postponed accrual

would be governed by the limitations period in effect at the time of discovery. By

expressly reviving lapsed claims, and limiting the one-year window period to

claims that were time-barred as of January 1, 2003, the Legislature allowed the

discovery rule to operate in its normal fashion on all revived claims.

Nevertheless, the majority concludes that the one-year window specified

in section 340.1(c) applies to all revived claims, whether or not they were

discovered in time for the plaintiff to sue. I find this reading problematic; it would

make little sense for the Legislature to revive and then foreclose claims that could

not be pursued because the plaintiffs were unaware of their injuries.

The majority‟s construction leads to anomalous results. All plaintiffs

younger than 26 on January 1, 2003, are free to sue within three years of the date

they discover their injuries, even if they make that discovery at an advanced age.

Plaintiffs over the age of 26 who had discovered their injuries before January 1,


(footnote continued from previous page)

otherwise barred by the period of limitations in effect prior to January 1, 1991,
thereby reviving those causes of action which had lapsed or technically expired
under the law existing prior to January 1, 1991.” (Former § 340.1, subd. (o),
added by Stats. 1994, ch. 288, § 1, p. 1930, now § 340.1, subd. (r).)


In my view, the majority‟s reading of section 340.1(c) invites a similar

repudiation by the Legislature. (See 3 Witkin, Cal. Procedure (3d ed. 2008)
Actions, § 464, p. 587.) For these plaintiffs, however, that would be cold comfort,
as their claims will have been finally resolved. (See § 340.1, subd. (d); Perez v.
Roe 1
(2006) 146 Cal.App.4th 171, 188.)

5



2003, were permitted to sue within the one-year window created by section

340.1(c), no matter how long ago they were molested. Thus, a plaintiff molested

in 1960 at the age of 12, who discovered his or her injury in 2002 at the age of 54,

would be able to sue during the window period. Under the majority‟s reading,

however, section 340.1(c) bars suit by a plaintiff molested in 1988 at the age of 12,

who discovered his or her injury in 2004 at the age of 28. This claim is more

recent and the injury was discovered at an earlier age than the hypothetical claim

based on a 1960 molestation. Nevertheless, under the majority‟s holding the older

claim would be viable and the younger claim barred. It seems unlikely that the

Legislature would single out one class of plaintiffs for arbitrary treatment,

depriving them of any opportunity to sue upon discovery of their injuries while

allowing other plaintiffs who suffer the same kind of injury a reasonable time after

discovery to seek redress.

The majority invokes the rule requiring express revival of lapsed claims,

which developed from the concern that extending a limitations period to expired

claims deprives defendants of their interest in repose. (Douglas Aircraft Co. v.

Cranston (1962) 58 Cal.2d 462, 465-466.) Because of the disruptive impacts of

such extensions, we will not apply a newly enlarged limitations period to claims

that had lapsed under the former statute unless the Legislature “expresse[s] itself

in unmistakable terms.” (Id. at p. 466.) Ordinarily, the question before the court

is whether the Legislature intended the amended period to apply retroactively to

any lapsed claims. That was the case in Douglas Aircraft Co., supra, 58 Cal.2d at

page 466, in David A., supra, 20 Cal.App.4th at page 287, and in the cases cited

6



by the majority for the general rule, with one exception that is unlike the case

before us.5

However, in section 340.1(c) the Legislature did revive lapsed claims, in

unmistakable terms. Whether it then subjected all those claims to a limited one-

year window period is a separate question. In answering that question, we should

keep in mind that section 340.1(c), like section 340.1, subdivision (b)(2), “is a

remedial statute that the Legislature intended to be construed broadly to effectuate

the intent that illuminates section 340.1 as a whole; to expand the ability of

victims of childhood sexual abuse to hold to account individuals and entities

responsible for their injuries.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531,

536.)

The majority‟s reading of section 340.1(c) contravenes the remedial

purpose of the 2002 amendments. It is not a grammatically unreasonable reading,

but its effects are manifestly unreasonable. The alternative reading set out here is

consistent with the language of the statute and does not lead to anomalous results.

Insofar as the terms of section 340.1(c) are ambiguous, we may consult the

legislative history to clarify their meaning. (Shirk v. Vista Unified School Dist.

(2007) 42 Cal.4th 201, 211.)

As the majority observes, the legislative history shows that the savings

clause of section 340.1(c) was borrowed from another revival statute, enacted in


5

In Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, the

Legislature specified that victims of the 9/11 terrorist attacks were entitled to
retroactive application of an expanded limitations period for personal injury
actions. The plaintiff was not a member of that class, and did not try to bring
himself with the scope of the express revival provisions. (Id. at pp. 1028-1029.)
Here, on the other hand, plaintiffs‟ claims were expressly revived.

7



2000.6 Section 340.9 revived certain lapsed insurance claims arising from the

1995 Northridge earthquake, and included the following caveat: “Nothing in this

section shall be construed to alter the applicable limitations period of an action

that is not time barred as of the effective date of this section.” (§ 340.9, subd. (c).)

In Cordova v. 21st Century Ins. Co. (2005) 129 Cal.App.4th 89 (Cordova), the

court held that this language preserved claims shielded from the statute of

limitations by the doctrine of equitable estoppel. (Id. at pp. 98-100.)

The majority reasons that the parallel terms of section 340.1(c) must have

the same meaning. The 2002 Legislature did not, of course, have the benefit of the

Cordova decision when it adapted the terms of section 340.9, subdivision (c) for

use in the savings clause before us. However, I agree with the majority that a

claim subject to equitable estoppel or any other tolling mechanism would be

preserved under section 340.1(c). But it does not follow that this is the only

function of the savings clause: “Nothing in this subdivision shall be construed to

alter the applicable statute of limitations period of an action that is not time barred

as of January 1, 2003.” (§ 340.1(c).) As discussed above, this language is fairly

read to mean that the one-year window period does not apply to plaintiffs over the

age of 26 who discover their injuries on or after January 1, 2003. “[A]s of” that

date, their claims are not barred by “the applicable statute of limitations period,”

which is the three-year period provided in section 340.1, subdivision (a).

(§ 340.1(c), italics added.)


6

Senate Committee on the Judiciary, third reading Analysis of Senate Bill

No. 1779 (2001-2002 Reg. Sess.) as amended June 17, 2002, page 4; Assembly
Committee on Judiciary, Analysis of Senate Bill No. 1779 (2001-2002 Reg. Sess.)
as amended June 6, 2002, page 7.

8



The bill history of the 2002 amendments does not suggest the Legislature

meant to restrict the savings clause of section 340.1(c) to tolled claims. In

Cordova, the court consulted the legislative history of section 340.9 and found it

replete with indications that the statute was enacted in response to reports of

rampant mishandling of claims by insurers, of the sort that would support

application of the equitable estoppel doctrine. (Cordova, supra, 129 Cal.App.4th

at pp. 102-107.) There is little in the legislative history of section 340.1(c) to

suggest a similar concern. There is much, however, that demonstrates the

Legislature‟s focus on the injustice of denying relief to adult survivors of

childhood sexual abuse who discover their psychological injuries after the statute

of limitations has run.

The history shows that the Legislature was motivated by concern that “any

lawsuit against a responsible third party is absolutely time-barred after the victim

passes his 26th birthday. This arbitrary limitation unfairly deprives a victim from

seeking redress, and unfairly and unjustifiably protects responsible third parties

from being held accountable for their actions that caused injury to victims.”7 As

explained in a bill analysis, the 2002 amendments “would provide those victims

who discovered their adulthood trauma after age 26, whose action has been

barred by the current statute of limitations, a one-year window to bring a case

against a third party that otherwise would be time-barred.”8 (Italics added.)


7

Senate Committee on the Judiciary, Analysis of Senate Bill No. 1779,

supra, as amended June 17, 2002, pages 3-4 (included in Assem. Floor Analysis of
Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as amended June 17, 2002, pp. 3-4);
see also Assembly Committee on Judiciary, Background Information Worksheet
on Senate Bill No. 1779 (2001-2002 Reg. Sess.) June 5, 2002, bill digest, page 1.
8

Senate Committee on the Judiciary, Analysis of Senate Bill No. 1779

(2001-2002 Reg. Sess.) as amended May 2, 2002, for hearing on May 7, 2002,
page 6.

9



The majority reads this language to include all 26-year-old plaintiffs, both

those who have discovered and those who will discover their injuries. (Maj. opn.,

ante, at pp. 49-50.) However, the bill analysis uses the past tense to describe

injuries that have been discovered. It cannot fairly be read to include victims who

would later discover their trauma, after the one-year window period had expired.

The majority‟s reading of section 340.1(c) does not give such victims a one-year

window, as the Legislature contemplated. They could not sue before their injuries

were discovered. Under the majority‟s analysis, the Legislature revived their

claims for nought. Upon discovery, they are subject to the absolute time-bar that

the Legislature meant to lift.

The majority acknowledges materials stating: “People who discover their

adulthood trauma from the molestation after the effective date of the bill will have

three years from the date the victim discovers or reasonably should have

discovered that the adulthood trauma was caused by the childhood abuse.”9 This

plain language demonstrates the Legislature‟s understanding that the discovery

rule provided in section 340.1, subdivision (a) would apply to claims arising after

January 1, 2003. If the Legislature had meant to say that “people who turn 26 on

or after the effective date of the bill will have three years” from the date of

discovery to sue, surely it would have stated that important qualification, either

here, elsewhere in the documentation of the bill history, or indeed in the statute

itself. It did not. The absence of any such qualification strongly supports the

conclusion that when the Legislature specified in section 340.1(c) that nothing in

the revival clause should be “construed to alter the applicable statute of limitations

period of an action that is not time barred as of January 1, 2003,” it meant that


9

Assembly Committee on Judiciary, Background Information Worksheet on

Senate Bill No. 1779, supra, bill digest, page 0.

10



anyone discovering a claim after 2002 would have three years to sue. (Cf.

Cordova, supra, 129 Cal.App.4th at p. 106 [noting absence in legislative history of

any indication that Legislature intended to exclude equitable remedies].)

The majority deflects the import of this passage in the legislative history by

observing that it appears under the subheading “Prospective application.” The

majority notes that the same materials, under the heading “Retroactive application

and revival of lawsuits,” state that “the bill would create a one-year window for

victims to bring a lawsuit that would otherwise be barred by the age 26

limitation.” (Maj. opn., at pp. 51-52.) The majority does not quote the next

sentence, however: “This is fair because the statute should not protect those

responsible from being held liable.”10 The majority‟s reading of section 340.1(c)

does protect responsible third party defendants, and arbitrarily maintains the age

26 limitation for one class of plaintiffs.11

In any event, the majority‟s distinction between prospective and retroactive

application of the new limitations period does not undermine the viability of

plaintiffs‟ claims. While in one sense any application of a new statute of

limitations to a lapsed claim is “retroactive,” the discovery rule makes it possible


10

Assembly Committee on Judiciary, Background Information Worksheet on

Senate Bill No. 1779, supra, bill digest, page 0.
11

The majority‟s interpretation also creates an arbitrary limitation in the

operation of the one-year window period. A discovery late in the 2003 calendar
year would be difficult to bring to the attention of an attorney in time to file suit.
While this is a normal aspect of statutes of limitation, section 340.1 is notable for
its generous limitation periods, allowing suit within eight years of the age of 18 or
three years of the date of discovery, whichever is later. (§ 340.1, subd. (a).) A
one-year window period for lapsed claims operates sensibly for claims discovered
before the window opens, but becomes increasingly impractical as the window
period passes.


11



for a new limitations period to govern revived claims that accrue after the effective

date of the new statute. It was entirely reasonable for the Legislature to anticipate

that the 2002 amendments would apply prospectively as of January 1, 2003, to

claims accruing on or after that date, and retroactively to claims discovered before

that date.

Accordingly, I would affirm the Court of Appeal‟s judgment. Plaintiffs‟

claims were unquestionably revived by section 340.1(c). To hold that they were

alive only for the calendar year 2003, even though they had not been discovered, is

inconsistent with the broadly remedial intent underlying the 2002 amendments. It

leaves one class of plaintiffs without a remedy, while allowing similarly situated

plaintiffs to sue. The statutory language does not compel this unfair and

anomalous result. The savings clause in section 340.1(c) may reasonably be read

to include plaintiffs‟ claims in the expanded scope of the new limitations period in

effect as of January 1, 2003.

CORRIGAN, J.

12












DISSENTING OPINION BY LIU, J.

In this case, six brothers seek compensatory relief from the Roman Catholic

Bishop of Oakland for adult psychological injuries allegedly caused by childhood

sexual abuse perpetrated by a priest assigned to their local parish. In their

amended complaint, plaintiffs provide a disturbing and detailed account of

recurring abuse by the same priest, and equally disturbing allegations of

institutional avoidance and inattention. Whether those allegations are true, we will

never know, as the Quarry brothers are now barred from having their day in court.

Because the statute on which plaintiffs rely is a remedial statute that, properly

construed, authorizes them to bring this suit, I respectfully dissent.

I agree with my dissenting colleague Justice Corrigan that Code of Civil

Procedure section 340.1, subdivision (c) (all further undesignated statutory

references are to this code) allowed a one-year window for alleged victims of

childhood sexual abuse to sue especially culpable third parties on previously

discovered claims that had lapsed, while leaving undiscovered claims against

those third parties subject to the delayed discovery rule of section 340.1,

subdivision (a). Assuming plaintiffs‟ claims lapsed no later than 1998 by virtue of

the age 26 cutoff in section 340.1, subdivision (b)(1), I believe Justice Corrigan‟s

reading of section 340.1, subdivision (c) is sound: The first sentence of that

provision revived plaintiffs‟ claims and says revived claims must be brought

“within one year of January 1, 2003.” But the second sentence of that provision

preserves “the applicable statute of limitations period of an action that is not time

1



barred as of January 1, 2003.” Plaintiffs‟ claims were “not time barred as of

January 1, 2003” because they had been revived as of that date, and “the

applicable statute of limitations period” for their revived claims is the delayed

discovery rule of section 340.1, subdivision (a).

I write separately, however, because I am doubtful of the premise that the

Legislature‟s 1998 enactment of the age 26 cutoff caused plaintiffs‟ undiscovered

claims to lapse. It is true that if plaintiffs had discovered the causal connection

between their alleged childhood abuse and their adult psychological injuries at any

point from 1999 through 2002, then the age 26 cutoff would have barred their

claims. But it is well established that “statutes of limitation do not begin to run

until a cause of action accrues.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35

Cal.4th 797, 807 (Fox), citing Romano v. Rockwell International, Inc. (1996) 14

Cal.4th 479, 487.) The discovery rule “postpones accrual of a cause of action until

the plaintiff discovers, or has reason to discover, the cause of action.” (Fox,

supra, 35 Cal.4th at p. 806, citing Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,

397, and Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176,

187.) That a cause of action would have been barred by the applicable statute of

limitations (the age 26 cutoff) had it accrued in 1999 does not mean that it was

actually barred by that limitations period where the cause of action did not accrue

until 2006. By that time, section 340.1, subdivision (b)(2) had eliminated the age

26 cutoff and put into effect a new limitations period (the three-year discovery

rule) for certain third party claims. (See, e.g., Romo v. Estate of Bennett (1979) 97

Cal.App.3d 304, 307-308 [where Legislature extends a statute of limitations, the

new limitations period applies to causes of action that accrue after its effective

date].)

The court says that if plaintiffs‟ claims are understood to accrue upon

discovery of the connection between adult psychological injury and childhood

2



abuse, then Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201 (Shirk)

“presumably . . . should have been litigated and resolved differently.” (Maj. opn.,

ante, at p. 45, fn. 11.) But that is entirely speculative. The plaintiff in Shirk

conceded that “her cause of action . . . was extinguished in 1980” due to her

failure to timely present her claim to the school district as required by the

government claims statute. (Id. at p. 210.) She chose to argue before this court

that section 340.1, subdivision (c) revived her cause of action. (Shirk, supra, at

p. 210.) This court disagreed and held that the revival provision did not apply.

(Id. at pp. 212-214.) Neither the majority nor the dissent in Shirk examined

whether subdivision (b)(2) gave rise to a new accrual or whether the age 26 cutoff

in subdivision (b)(1) caused any undiscovered claims to lapse in 1998. Those

issues simply were not raised or considered in Shirk. “It is axiomatic, of course,

that a decision does not stand for a proposition not considered by the court.”

(People v. Harris (1989) 47 Cal.3d 1047, 1071.)

When the Legislature enacted the 2002 amendment adding subdivision (c)

to section 340.1, the Senate Committee on the Judiciary explained that “this bill

would provide those victims who discovered their adulthood trauma after age 26,

whose action has been barred by the current statute of limitations, a one-year

window to bring a case against a third party that otherwise would be time-barred.”

(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as

amended May 2, 2002, p. 7, italics added.) This legislative history makes clear

that subdivision (c) revived discovered claims that had been barred by the age 26

cutoff. By contrast, the legislative history nowhere mentions revival of

undiscovered claims. The most sensible explanation for this omission is that the

Legislature did not see any need to revive undiscovered claims because those

claims had not accrued and thus had not been barred. Subdivision (b)(2), which

was also added to section 340.1 as part of the 2002 amendment, brought such

3



claims against especially culpable third parties within the coverage of subdivision

(a)‟s three-year discovery rule.

This reading is further confirmed by the author of the 2002 amendment,

who explained the amendment‟s purpose as follows: “[T]his bill is essential to

ensure that victims severely damaged by childhood sexual abuse are able to seek

compensation from those responsible. While current law allows a lawsuit to be

brought against the perpetrator within three years of discovery of the adulthood

aftereffects of the childhood abuse, current law bars any action against a

responsible third party entity . . . after the victim‟s 26th birthday. Unfortunately

. . . for many victims their adulthood trauma does not manifest itself until well

after their 26th birthday, when some event in their current life triggers

remembrance of the past abuse and brings on new trauma.

“For example, a 35-year old man with a 13-year old son involved in many

community and sporting events, may begin to relive his nightmare of being

molested by an older authoritarian figure when he was 13 years old and about to

enter puberty. While a lawsuit against the perpetrator is possible, that person may

be dead, may have moved away to places unknown, or may be judgment-proof.

However, any lawsuit against a responsible third party is absolutely time-barred

after the victim passes his 26th birthday. [¶] This arbitrary limitation unfairly

deprives a victim from seeking redress, and unfairly and unjustifiably protects

responsible third parties from being held accountable for their actions that caused

injury to victims.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779,

supra, pp. 3-4.) The example of the 35-year-old man who connects his adult

psychological injury to childhood sexual abuse is repeated several times

throughout the legislative history of the 2002 amendments. (See also Sen. Com.

on Judiciary, 3d reading analysis of Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as

amended Jun. 17, 2002, pp. 3-4; Sen. Rules Com., off of Sen. Floor Analyses,

4



Analysis of Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as amended May 15, 2002;

Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1779 (2001-2002 Reg. Sess.)

as amended June 6, 2002, p. 3.)

Under today‟s decision, the 35-year-old man in the example may benefit

from the three-year discovery rule — but only if he turned 35 at least nine years

after January 1, 2003, the effective date of the 2002 amendments. Anyone who

turned 35 within nine years of January 1, 2003 would have been 26 or older as of

January 1, 2003, and the claims of those individuals are forever barred, the court

holds, unless they happened to be discovered and brought within the one-year

revival window. I find it hard to believe that this is what the Legislature intended.

Given the repeated emphasis on the unfairness and arbitrariness of denying the

three-year discovery rule to a 35-year-old victim of childhood sexual abuse, why

would the Legislature have deferred for nine years the applicability of the

discovery rule to any such 35 year old? Absent some indication to the contrary in

the statute or legislative history, I would not attribute to the Legislature such an

anomalous intent. (See also dis. opn. of Corrigan, J., ante, at pp. 5-6 [describing

other anomalous and arbitrary results of the court‟s holding].)

The unanimous Court of Appeal was correct in its clear, straightforward

reading of the statutory text: “The parties do not dispute that plaintiffs‟ claims for

injuries from the alleged sexual abuse originally lapsed between 1976 and 1982,

when each turned age 19 . . . . [¶] . . . [¶] The 1998/1999 amendments to section

340.1 revived all previously lapsed, unadjudicated claims against perpetrators and

third parties, and provided for two alternative limitations periods: A claim must

be filed (1) within eight years after [a victim] reach[es] majority or (2) within three

years of discovering that the cause of the psychological injury occurring after the

age of majority was the childhood abuse, whichever occurs later ([§ 340.1], subd.

(a)); as against third parties, however, the outside limit was age 26 (id., subd. (b)).

5



Thus, under the prior law, any person discovering after age 26 that childhood

abuse was the cause of his or her adulthood injuries was barred from suing

responsible third parties. Effective 2003, however, the Legislature deleted the age

26 cutoff as against a narrow category of third party defendants who had both the

knowledge and the ability to protect against abusive behavior but failed to do so.

Anyone discovering that childhood abuse was the cause of their injuries after 2003

could sue these — more culpable — defendants without regard to the age 26

cutoff. (Ibid.) And, for those who had previously discovered the cause of their

injuries but could not sue under the prior law because of the age 26 cutoff (id.,

subd. (b)(1)), the Legislature offered a one-year window in which they could file

their claims (id., subd. (c)). [¶] It therefore follows, and we hold, that under

section 340.1 the complaint in this action is not time-barred because plaintiffs

have alleged they did not discover the cause of their psychological injuries until

2006.”

The Court of Appeal also correctly explained the legislative history and

intent: “[T]he primary purpose of the 2002 amendments was to ameliorate the

harsh result of a statute of limitations which precluded abuse victims from

recovering any compensation from the most highly culpable of the responsible

third parties — those who knew of the danger and took no steps to protect children

from abuse. It would not effectuate this legislative intent to read the amendments

as reimposing the same harsh result on an entire class of victims over the age of 26

who did not discover the cause of their injury until after January 1, 2004, and

therefore could not have filed their actions during 2003.”

Finally, as mentioned at the outset, even if the Court of Appeal was wrong

and the age 26 cutoff had barred plaintiffs‟ claims in 1998, Justice Corrigan is

correct that the first sentence of section 340.1, subdivision (c) revived plaintiffs‟

claims and that “the applicable statute of limitations period” under the second

6



sentence of subdivision (c) is the three-year discovery rule, not the one-year

revival window.

Today‟s decision does not comport with our understanding that section

340.1, subdivision (b)(2), which lifted the age 26 cutoff for claims against highly

culpable third parties, “is a remedial statute that the Legislature intended to be

construed broadly to effectuate the intent that illuminates section 340.1 as a whole;

to expand the ability of victims of childhood sexual abuse to hold to account

individuals and entities responsible for their injuries.” (Doe v. City of Los Angeles

(2007) 42 Cal.4th 531, 536.) Although the 2002 amendments to section 340.1 are

readily construed to protect plaintiffs such as the Quarry brothers — on either my

interpretation or Justice Corrigan‟s — the court holds that it is too late for them to

pursue their claims.

It is not too late, however, for the Legislature to give similarly situated

plaintiffs their day in court. Since 1986, when section 340.1 was first enacted, the

Legislature has twice expanded access to court for childhood sexual abuse victims

in response to what it saw as unduly narrow rules set forth in judicial opinions.

(See maj. opn., ante, at p. 17 [noting that 1990 amendment extended delayed

discovery principles, superseding DeRose v. Carswell (1987) 196 Cal.App.3d

1011]; id. at p. 19 [noting that 1994 amendment expressly revived lapsed claims

against direct perpetrators, superseding David A. v. Superior Court (1993) 20

Cal.App.4th 281].) Today‟s unduly narrow reading of the statute may prompt the

Legislature again to provide a correction that affirms the statute‟s remedial

purpose.

I respectfully dissent.

LIU, J.

7



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Quarry v. Doe 1
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 170 Cal.App.4th 1574
Rehearing Granted
__________________________________________________________________________________

Opinion No.
S171382
Date Filed: March 29, 2012
__________________________________________________________________________________

Court:
Superior
County: Alameda
Judge: Kenneth Mark Burr
__________________________________________________________________________________

Counsel:

Zalkin & Zimmer, The Zalkin Law Firm, Irwin M. Zalkin, Michael H. Zimmer, Devin M. Storey and
Michael J. Kinslow for Plaintiffs and Appellants.

Jeff Anderson & Associates, Michael Finnegan and Sarah Odegaard for The National Association for the
Prevention of Sexual Abuse of Children, the National Center for Victims of Crime and the Survivors
Network of those Abused by Priests as Amici Curiae on behalf of Plaintiffs and Appellants.

Nancy O‟Malley, District Attorney (Alameda); Furtado, Jaspovice & Simons, Bill Lockyer and Richard J.
Simons as Amici Curiae on behalf of Plaintiffs and Appellants.

Reed Smith, Margaret M. Grignon; Foley & Lardner, Stephen A. McFeely, Tami S. Smason, Courtney R.
Henning, Leila Nourani and Michael B. McCollum for Defendant and Respondent.

Lombardi, Loper & Conant, Peter O. Glaessner and Lori A. Sebransky for The Ordinary Mutual as Amicus
Curiae on behalf of Defendant and Respondent.

Quinn Emanuel Urquhart Oliver & Hedges, Daniel H. Bromberg; Burke, Warren, MacKay & Serritella,
James C. Geoly and Nora Flaherty Couri for The Order of Carmelites, Province of the Most Pure Heart of
Mary, The Order of the Friar Servants of Mary, USA Province and The Greek Orthodox Archdiocese of
America as Amici Curiae on behalf of Defendant and Respondent.

Hennigan, Bennett & Dorman, J. Michael Hennigan and Lee W. Potts for the Roman Catholic Archbishop
of Los Angeles as Amicus Curiae on behalf of Defendant and Respondent.

Sweeney & Greene, James F. Sweeney, Stephen J. Greene, Jr., and Laura Borden Riddell for California
Association of Private School Organizations as Amicus Curiae on behalf of Defendant and Respondent.

Sedgwick, Detert, Moran & Arnold and Nicholas W. Heldt for Boy Scouts of America and Masonic Homes
of California, Inc., as Amicus Curiae on behalf of Defendant and Respondent.

Neumiller & Beardslee, Paul N. Balestracci, Lisa Blanco Jimenez; McNamara Law Firm and Gary A. Watt
for the Roman Catholic Bishop of Stockton and the Roman Catholic Bishop of Sacramento as Amici
Curiae on behalf of Defendant and Respondent.







Counsel who argued in Supreme Court (not intended for publication with opinion):

Devin M. Storey
The Zalkin Law Firm
12555 High Bluff Drive, Suite 260
San Diego, CA 92130
(858) 259-3011

Irwin M. Zalkin
The Zalkin Law Firm
The Zalkin Law Firm
12555 High Bluff Drive, Suite 260
San Diego, CA 92130
(858) 259-3011

Margaret M. Grignon
Reed Smith
355 S. Grand Avenue, Suite 2900
Los Angeles, CA 90071-1514
(213) 457-8000


In a 5-2 decision, the Supreme Court held that the plaintiffs’ sexual abuse claims against the Catholic Bishop of Oakland who supervised the abusing priest in the early 1970s were untimely. The action is subject to the statute of limitations set out in Cal. Code of Civil Procedure section 340.1(c). Under the 1998 amendment, the claims lapsed when the plaintiffs turned 26. Although the 1999 amendment did not affect their claims, the 2002 amendment explicitly revived time-barred claims for a period of one year (January 1, 2003-January 1, 2004). The plaintiffs brought their claim in 2007, after the statute of limitations had fully elapsed. Although the Court noted its sympathy for the victims of sexual abuse, it also recognized the strong policy in favor of affording repose to defendants. The Supreme Court reversed the Court of Appeal and remanded to that court for further action consistent with its opinion.

Opinion Information
Date:Citation:Docket Number:Cross Referenced Cases:
Thu, 03/29/201253 Cal. 4th 945, 272 P.3d 977, 139 Cal. Rptr. 3d 3S171382

K.J. v. ROMAN CATHOLIC BISHOP
D.D. v. ROMAN CATHOLIC BISHOP
L.A. v. ROMAN CATHOLIC BISHOP
DOE v. ROMAN CATHOLIC BISHOP
ROE v. DOE
DOE 3 v. S.C. (JANE CA DOE)
ROE 58 v. DOE 1
JOHN DOE v. ROMAN CATHOLIC BISHOP OF STOCKTON


Opinion Authors
OpinionChief Justice Tani Cantil-Sakauye
DissentJustice Carol A. Corrigan, Justice Goodwin Liu

Brief Downloads
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If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 23, 2012
Annotated by Brendan Cohen

Facts:

The plaintiffs are six brothers whose ages ranged from 43 to 49 at the time they filed this suit. They allege that as a result of sexual abuse they endured in 1972-1973 from Father Broderson, a priest in the Catholic parish of St. Joachim in Hayward, they suffered psychological injury as adults.

The defendants in this action include the Roman Catholic Bishop of Oakland, who plaintiffs allege directly supervised and controlled Father Broderson. The plaintiffs also name additional Doe defendants who they allege knew, or had reason to know, that Father Broderson had committed unlawful sexual conduct and who did not take reasonable steps to prevent this behavior.

The plaintiffs allege that they did not discover the cause of their adult psychological problems until 2006. They contend that they could not have known the wrongfulness of Father Broderson’s conduct until late-2005 when Father Broderson admitted in a deposition that he had sexually abused the plaintiffs. An attorney representing some of Broderson’s other victims contacted the plaintiffs and they subsequently met with a mental health practitioner on March 6, 2006. Plaintiffs state that this was the first time that they discovered that their adult psychological injuries were caused by sexual abuse. The present action was filed within one calendar year of this discovery.

Plaintiffs’ first amended complaint alleged 14 causes of action, including claims for negligence in hiring, retaining, and supervising Father Broderson despite knowledge of his prior acts of sexual abuse, and negligent failure to protect plaintiffs and warn them of their peril.

Procedural Posture:

The trial court sustained the defendant’s demurrer to the first amended complaint without leave to amend on the grounds that the California Code of Civil Procedure section 340.1 barred the action, and the action was not revived by the 2002 amendment to that provision. The trial court dismissed the complaint with prejudice.

The Court of Appeal reversed, agreeing with the plaintiffs that pursuant to the 2002 amendment to section 340.1 “their claims did not even begin to run until 2006, when they first discovered their ‘psychological injury or illness occurring after the age of majority was caused by the sexual abuse.’”

The Supreme Court of California granted review, giving the complaint a reasonable interpretation and treating the demurrer as admitting all material facts properly pleaded.

Issue:

Whether plaintiffs who discovered that their adult psychological injuries were the result of the sexual abuse inflicted on them by a priest when they were children properly brought their claims within the statute of limitations period established by the California Code of Civil Procedure section 340.1.

Holding:

The plaintiffs’ claim was untimely. The plaintiffs had turned 26 before the 1998 amendment to section 340.1 went into effect, and thus their claims were time-barred. The 2002 amendment expressly revived their claims for a period of one year. Since the plaintiffs did not file in that one-year period, even though they did not discover their injuries until later, their claims lapsed again.

Analysis:

The Legislature can establish and enlarge statutes of limitation periods. However, a legislative enlargement does not revive a lapsed claim in the absence of express language of revival.

Statutes are ordinarily interpreted as applying prospectively in the absence of a clear indication of legislative intent. Retroactive application requires express language of retroactivity or “other sources [that] provide a clear and unavoidable implication that the Legislature intended retroactive application.” McClung v. Employment Development Dept. 34 Cal. 4th 467, 475 (2004).

A law has a retroactive effect if it changes the legal consequence of past conduct by imposing new or different liabilities based upon it. Considerations of fairness weigh against such retroactive changes. When a change in the law affects a pending litigation, however, this change has often been deemed prospective, as it affects the future proceedings at trial.

If the original statute of limitations has not expired, the new period applies prospectively to any case that was pending or is brought after the enactment took place. If however, the claims have lapsed, that is, the limitations period expired before the amendment went into effect, a revival of the claim is seen as a retroactive application of the law under an enlarged statute of limitations and is not permitted without express language of revival from the Legislature. This clear indication is necessary, since a reviving a claim after the prospective defendant has assumed its expiration is often viewed as “unfair and dishonest.”

There have been a number of amendments to section 340 that have affected the statute of limitations. To answer the question at issue in this case, the Court traces the history of these amendments to determine how they apply to the plaintiffs’ claims. The 1986 amendment created section 340.1 and extended the statute of limitations by three years for claims against a member of the minor’s household. The 1990 amendment enlarged the limitations period to eight years after the age of majority (age 26) and created its own statutory delayed discovery rule for all actions brought prior to the effective date of the 1990 amendment that superseded the common law delayed discovery principles previously embraced by the 1986 amendment. The 1994 amendment expressly revised lapsed claims and completely eliminated the remaining references to the common law delayed discovery principles, relying entirely on the statutory rule. The 1998 amendment to section 340.1 authorized actions against third party defendants but barred such actions by plaintiffs after their 26th birthday. The Court notes that the Legislature was clearly aware of the problem of delayed discovery, as evidenced by the 1990 and 1994 versions of the statute, and knew how to clearly write express revival provisions. Thus, for plaintiffs with claims against third party defendants, the Legislature decided to toll the limitations period to age 26, but no longer. Hightower v. Roman Catholic Bishop of Sacramento, 142 Cal.App.4th 759 (2006), a similar case decided by the 2nd District Court of Appeal shared this interpretation of the 1998 version of the legislation. Since the Quarry brothers were older than 26 years of age when the 1998 legislation went into effect, their claims lapsed. The 1999 amendment did not revive claims for plaintiffs who had already turned 26.

In a 2002 amendment to section 340.1, the Legislature expanded the limitation period for a new sub-category of third-party defendants who “knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, . . .” For these defendants, actions would be timely if brought within eight years from the age of majority (age 26) or three years from the date plaintiff discovers or should have discovered that psychological injury was due to childhood sexual abuse.

Furthermore, subdivision (c) of the 2002 amendment expressly revives any claim against the new subcategory of defendants that had previously lapsed, but limits the revival period to one year from the effective date of the amendment (January 1, 2003). Since the plaintiff’s claims had lapsed prior to 2002 (they were older than 26 in 1998), and since they failed to bring a claim during the one-year revival period, their action is barred.

The majority and the dissent disagree over whether discovered and undiscovered claims should be treated differently under the 2002 amendment to section 340.1(c). Additionally, they disagree about whether the 2002 amendment revives the plaintiff’s claims.

The majority carefully analyzes the plaintiffs’ interpretation of section 340.1 of the Civil Code and uses legislative history to support its viewpoint. It then turns to the decision of the Court of Appeal and explains why that court’s view, that the 2002 amendment applied prospectively to plaintiffs who were older than 26 in 1998, but discovered their injury subsequent to the effective date of the 2002 amendment. The Court of Appeal relies primarily on Nelson v. Flintkote Co., 172 Cal. App. 3d 727 (1985), a case about the enlargement of asbestos-related injuries governed by section 340.2. The Supreme Court distinguishes the present case from Nelson on the language of the statute and the legislative history of the respective sections. Furthermore, the Supreme Court rejects the Court of Appeal’s suggestion that Nelson stands for the proposition that “in no case does a claim lapse by virtue of the running of the statute of limitations until there is a judicial determination that the claims have become untimely.”

In the final section of its decision, the Supreme Court cites language from the legislative history of the 2002 amendment that supports its position with regard to the retroactive application of the amended section 340.1(c). The Court focuses on the following two documents:

(1) An analysis prepared for the Senate Judiciary Committee for its initial hearing on the bill proposing the amendments, conducted May 2, 2002 (Sen. Com. On Judiciary, Analysis of Sen. Bill No. 1779 (2001 2002 Reg. Sess.)) as amended May 2, 2002, for hearing on May 7, 2002; and

(2) An Assembly Committee on Judiciary bill analysis prepared for its hearing dated June 11, 2002, concerning the bill as amended June 6, 2002, with substantial material copied from the Senate analysis noted above. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1779, as amended June 6, 2002).

It concludes its opinion with a discussion of the public policy behind its decision. The Legislature knew that it was striking a balance between the protection of the victims and the burden on the third-party defendants. There are many instances of strict time limits on undiscovered but deserving claims. While the Court is sympathetic to the victims of sexual abuse and their chance to have the merits of their cases tried, it “must also give weight to the equally strong policy in favor of affording repose – a policy also considered by the Legislature.”

Dissent:

Corrigan, J:
California Code of Civil Procedure section 340.1(c) expressly revives lapsed claims, including those of the plaintiffs. Contrary to the majority's position, Justice Corrigan does not believe that all revived claims are subject to the one-year window.

In the 2002 amendment, the Legislature added section 340.1(b)(2) to provide plaintiffs over the age of 26 with three years from the date they discover an adult psychological injury to bring suit against defendants who knew or should have known about child molestation by an employee, but who failed to act.

Although section 340.1(c) revived lapsed claims for a period of only one year, it “also included a savings clause: ‘Nothing in this subdivision shall be construed to alter the applicable statute of limitations period of an action that is not time barred as of January 1, 2003.’” (Italics in original).

To Justice Corrigan, this savings clause exempts the plaintiffs’ claims because as of January 1, 2003, the applicable statute of limitation was three years from the date of discovery, and thus their claims were not time barred. The claims that would have been time-barred and subject to the one-year period were those that were already discovered by plaintiffs over age 26.

The majority’s position is that the one year window from section 340.1(c) applies to all revived claims, regardless of when they were discovered. Justice Corrigan writes “I find this reading problematic; it would make little sense for the Legislature to revive and then foreclose claims that could not be pursued because the plaintiffs were unaware of their injuries.”

She goes on to say that the problem with the majority’s position is that all plaintiffs younger than 26 on January 1, 2003 are free to sue within three years of the date they discover their injury, regardless of when they make the discovery. Plaintiffs over 26 who discovered their injuries before January 1, 2003, received a one year revival in which they could sue, no matter when they were molested. This arbitrarily singles out one class of plaintiffs. For example, “a plaintiff molested in 1960 at the age of 12, who discovered his or her injury in 2002 at the age of 54, would be able to sue during the window period. Under the majority’s reading however, section 340.1(c) bars suit by a plaintiff molested in 1988 at the age of 12, who discovered his or her injury in 2004 at the age of 28.”

Justice Corrigan notes that the majority’s reading of section 340.1(c) of the 2002 amendment is not grammatically unreasonable, but “its effects are manifestly unreasonable.” When the terms of the statute are ambiguous, the court can turn to the legislative history to clarify their meaning. The history does not suggest that the Legislature meant to restrict to savings clause of section 340.1(c) to tolled claims. The Legislature “focused on the injustice of denying relief to adult survivors of childhood sexual abuse who discover their psychological injuries after the statute of limitations has run.” Justice Corrigan discusses the same legislative history materials as the majority, but she disagrees with their interpretation.

As noted, she believes the majority’s decision provides an unfair result, in which similarly situated plaintiffs do not have equal opportunities to sue. “The savings clause in section 340.1(c) may reasonably be read to include plaintiffs’ claims in the expanded scope of the new limitations period in effect as of January 1, 2003.” In Justice Corrigan’s view, the judgment of the Court of Appeals should be affirmed.

Dissent:

Liu, J:
Justice Liu agrees with Justice Corrigan that section 340.1(c) reopens a one-year window to sue certain third parties for those plaintiffs who have already discovered their injuries, but that undiscovered claims remain subject to the delayed discovery rules of section 340.1(a). Justice Liu disagrees with Justice Corrigan's and the majority’s view that the 1998 amendment (adding an age 26 cut-off) caused the plaintiffs’ undiscovered claims to lapse. For him, this cut-off would only be applicable if the plaintiffs had discovered their injury between 1999 and 2002; otherwise, the statute of limitations is tolled until the plaintiff discovers, or has reason to discover, the cause of action.

Justice Liu reads the legislative history of the 2002 amendment to provide those plaintiffs who discovered their adult psychological injury after age 26, and whose actions have been barred by the current statute of limitations, a one year window to sue certain third parties. He notes that the legislative history does not address the revival of undiscovered claims. The most sensible explanation for this omission is that “the Legislature did not see any need to revive undiscovered claims because those claims had not accrued and thus had not been barred.”

The legislative history relays an example of a 35 year old man who only connects his adult psychological injury to childhood sexual abuse at that point in his life. The majority’s decision would almost certainly deny this victim relief, unless he happened to discover the connection during the one-year revival period. To Justice Liu, this cannot be what the Legislature intended.

Thus, he argues that the Court of Appeal correctly interpreted the amendments to section 340 and correctly explained the legislative history and intent, “to ameliorate the harsh result of a statute of limitations which precluded abuse victims” from recovering from certain third parties. The legislative intent would not be fulfilled if the amendment barred all victims over the age of 26 who did not discover their injury during the one-year window.

In Justice Liu's opinion, the majority reads the statute too narrowly. Twice in the past, the Legislature has “expanded access to court for childhood sexual abuse victims in response to what it saw as unduly narrow rules set forth in judicial opinions.” This Court’s narrow reading of the 2002 amendment may prompt the Legislature to again correct the statute of limitations to meet its intended purpose.

Key Related Cases:

K.J. v. ROMAN CATHOLIC BISHOP
D.D. v. ROMAN CATHOLIC BISHOP
L.A. v. ROMAN CATHOLIC BISHOP
DOE v. ROMAN CATHOLIC BISHOP
ROE v. DOE
DOE 3 v. S.C. (JANE CA DOE)
ROE 58 v. DOE 1
JOHN DOE v. ROMAN CATHOLIC BISHOP OF STOCKTON

Tags:

Retroactive Legislation
Proactive
Claim Revival
Lapsed
Legislative History
Legislative Intent
Change in law
Amendment to Statute
Statute of Limitations
Limitation of Action
Limitations Period
Childhood Sexual Abuse
Psychological Injury
Priest
Bishop
Third-Party Defendants
Discovery Rule
Delayed Discovery
Savings Clause

Annotation by Brendan Cohen