Stanford Law School - Robert Crown Law Library

Filed 8/28/17
IN THE SUPREME COURT OF CALIFORNIA
LATRICE RUBENSTEIN,
Plaintiff and Appellant,
S234269
v.
Ct.App. 4/1 D066722
DOE NO. 1 et al.,
Imperial County
Defendants and Respondents.
Super. Ct. No. ECU08107

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In 2012, plaintiff, Latrice Rubenstein, filed a claim with defendant Doe
No. 1 (defendant), a public entity, alleging that from 1993 to 1994, when she was
a high school student, her cross-country and track coach, who was defendant’s
employee, sexually molested her. When the claim was denied, she commenced
the instant action against defendant and defendants Does Nos. 2-20. She alleged
that latent memories of the sexual abuse resurfaced in early 2012, when she was
about 34 years old. As explained below, before suing a public entity, one must
generally present a timely claim to that entity. The question before us whether the
2012 claim concerning abuse that allegedly occurred from 1993 to 1994 was
timely. The Court of Appeal found the claim timely. We disagree.
A similar issue was before us in Shirk v. Vista Unified School Dist. (2007
42 Cal.4th 201 (Shirk). In Shirk, the plaintiff alleged that from 1978 to 1979, her
English teacher, an employee of the defendant school district, sexually molested
her. She filed a claim with the school district in 2003 and, shortly thereafter, sued
SEE DISSENTING OPINION.

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the school district. “At the time of plaintiff’s sexual molestation in 1978 to 1979,
the applicable statute of limitations for sexual molestation was one year. (Former
[Code Civ. Proc.], § 340, subd. (3).)” (Id. at p. 207.) Thus, the cause of action
became barred under the statute of limitations. However, statutory changes
beginning in 1986 revived her action as far as the statute of limitations was
concerned. (Id. at pp. 207-208.) In the complaint, the plaintiff “alleged that on
September 12, 2003, when she consulted a licensed mental health professional, she
learned she was ‘suffering from psychological injuries’ caused by [the teacher’s]
sexual abuse of her in 1978 and 1979, when she was a teenager.” (Id. at p. 210.
On these facts, we held that, although the cause of action had been revived for
purposes of the statute of limitations, the claim against the public entity remained
untimely.
We explained that, subject to exceptions listed in Government Code section
905, “[b]efore suing a public entity, the plaintiff must present a timely written
claim for damages to the entity.” (Shirk, supra, 42 Cal.4th at p. 208.) Compliance
with the claim requirement is a condition precedent to suing the public entity.
“Complaints that do not allege facts demonstrating either that a claim was timely
presented or that compliance with the claims statute is excused are subject to a
general demurrer for not stating facts sufficient to constitute a cause of action.”
(Id. at p. 209.) The claim must be presented “not later than six months after the
accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).) A plaintiff may
apply for leave to present a late claim (Gov. Code, § 911.4, subd. (a)), but only if
the application is presented “within a reasonable time not to exceed one year after
the accrual of the cause of action.” (Gov. Code, § 911.4, subd. (b).
“Accrual of the cause of action for purposes of the government claims
statute is the date of accrual that would pertain under the statute of limitations
applicable to a dispute between private litigants. (Gov. Code, § 901 . . . .)” (Shirk,
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supra, 42 Cal.4th at pp. 208-209.) The trial court in Shirk had “found that
plaintiff’s cause of action accrued on November 30, 1979 (the last possible act of
molestation).” (Id. at p. 210.) The plaintiff “did not submit a claim to the School
District until September 23, 2003, nearly 25 years after the last act of
molestation.” (Ibid.
The Shirk plaintiff’s 2003 claim was clearly untimely if the cause of action
accrued for purposes of the claims requirement in November 1979 and did not
reaccrue later. In arguing the claim was timely, the plaintiff relied primarily on
the legislation that had revived causes of action for childhood sexual molestation
that were otherwise barred under the applicable statute of limitations. (Code Civ.
Proc., § 340.1 (section 340.1).) As explained in greater detail in Shirk, supra, 42
Cal.4th at pages 207-208, section 340.1 as it existed at the time of the molestation
and as subsequently amended between 1990 and 2002 both expanded the statute of
limitations for childhood sexual molestation and revived some causes of action
that had already lapsed. It made the action in Shirk no longer barred by the statute
of limitations.
The plaintiff in Shirk made two arguments why the claim was timely: First,
“that under section 340.1, subdivision (c), . . . her cause of action against the
School District reaccrued on September 12, 2003, when she discovered that her
present psychological injury was caused by [the teacher’s] sexual abuse of her
some 25 years earlier”; and, second, “that her duty to present her claim to the
School District, as required under the government claims statute, first arose on
September 12, 2003, when she discovered that her psychological injury was
caused by the teacher’s sexual abuse and presented her claim to the School
District.” (Shirk, supra, 42 Cal.4th at pp. 210-211, italics added.) We rejected
both the section 340.1 and the delayed discovery arguments.
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Regarding the section 340.1 contention, we noted that the statute of
limitations was not at issue. “Rather, it is the claim presentation deadline
[citations] that is at issue . . . .” (Shirk, supra, 42 Cal.4th at p. 209.) We held that
section 340.1 did not affect that deadline. We focused on the language of section
340.1, subdivision (c), which revived certain claims for damages “that would
otherwise be barred as of January 1, 2003, solely because the applicable statute of
limitations has or had expired.” (Shirk, at p. 211, quoting § 340.1, subd. (c).) We
explained that “before a plaintiff can bring a cause of action against a public
entity, a timely claim must be presented to the entity; when no claim is timely
presented, however, such a cause of action is not barred ‘solely’ by lapse of the
applicable statute of limitations, the phrasing that the Legislature used in the
revival provision of subdivision (c). As explained earlier . . . the government
claim presentation deadline is not a statute of limitations. Had the Legislature
intended to also revive in subdivision (c) the claim presentation deadline under the
government claims statute, it could have easily said so. It did not. We thus
conclude that as of January 1, 2003, plaintiff’s causes of action against the School
District were barred by expiration of the time for presenting a claim to the School
District.” (Shirk, at p. 213.
We found support for this conclusion “in the public policies underlying the
claim presentation requirement of the government claims statute. Requiring a
person allegedly harmed by a public entity to first present a claim to the entity,
before seeking redress in court, affords the entity an opportunity to promptly
remedy the condition giving rise to the injury, thus minimizing the risk of similar
harm to others. [Citations.] The requisite timely claim presentation before
commencing a lawsuit also permits the public entity to investigate while tangible
evidence is still available, memories are fresh, and witnesses can be located.
[Citations.] Fresh notice of a claim permits early assessment by the public entity,
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allows its governing board to settle meritorious disputes without incurring the
added cost of litigation, and gives it time to engage in appropriate budgetary
planning. [Citations.] The notice requirement under the government claims
statute thus is based on a recognition of the special status of public entities,
according them greater protections than nonpublic entity defendants, because
unlike nonpublic defendants, public entities whose acts or omissions are alleged to
have caused harm will incur costs that must ultimately be borne by the taxpayers.”
(Shirk, supra, 42 Cal.4th at p. 213.
We have reiterated these policies more recently. “ ‘The claims statutes also
“enable the public entity to engage in fiscal planning for potential liabilities and to
avoid similar liabilities in the future.” ’ ” (DiCampli-Mintz v. County of Santa
Clara (2012) 55 Cal.4th 983, 991; see City of Stockton v. Superior Court (2007
42 Cal.4th 730, 738 [similar]; Perez v. Golden Empire Transit Dist. (2012) 209
Cal.App.4th 1228, 1234 [summarizing these policy considerations].
In Shirk, we also rejected the plaintiff’s delayed discovery argument that
the plaintiff’s “duty to present a claim to the School District did not arise until
September 12, 2003, when at the age of 41 she first learned from a mental health
practitioner that her adult-onset emotional problems resulted from [the teacher’s]
molestation of her as a teenager, some 25 years earlier.” (Shirk, supra, 42 Cal.4th
at p. 214.) We explained “that the Legislature’s amendment of section 340.1,
subdivision (c), revived for the year 2003 certain lapsed causes of action against
nonpublic entities, but that nothing in the express language of those amendments
or in the history of their adoption indicates an intent by the Legislature to apply
against public entity defendants the one-year revival provision for certain causes
of action. (§ 340.1, subd. (c).) In light of that conclusion, it seems most unlikely
that the Legislature also intended revival applicable to persons who discovered
only in 2003 a new injury attributable to the same predicate facts underlying a
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cause of action previously barred by failure to comply with the government claims
statute.” (Ibid.
Shirk agreed with County of Los Angeles v. Superior Court (2005) 127
Cal.App.4th 1263, 1269, which, as we described it, similarly “held that the
Legislature’s 2002 amendment of section 340.1 did not reflect the Legislature’s
intent ‘to excuse victims of childhood sexual abuse’ from complying with the
government claims statute when suing a public entity defendant.” (Shirk, supra,
42 Cal.4th at p. 207.
Justice Werdegar dissented in Shirk. (Shirk, supra, 42 Cal.4th at pp. 214-
216 (dis. opn. of Werdegar, J.).) She recognized that the plaintiff’s claim first
accrued in 1979 but contended that the “claim accrued again in 2003.” (Id. at p.
214.) She argued that the “applicable statute of limitations, which in this case is
the delayed discovery statute [i.e., section 340.1], defines accrual for purposes of
the claim presentation statute. (See Gov. Code, § 901.) Having redefined accrual
in the applicable statute of limitations, the Legislature necessarily redefined
accrual, and plaintiff’s obligations, under the claim presentation statute.” (Shirk,
at pp. 214-215.
Shirk, supra, 42 Cal.4th 201, is factually distinguishable. In Shirk, the
cause of action had lapsed and was later revived. (Id. at pp. 207-208.) In this
case, plaintiff’s claim never actually lapsed. Instead, statutory changes extended
the time period before it lapsed.1 Because of this, plaintiff’s cause of action was
1
At the time of the alleged molestation, the limitation period for plaintiff’s
claim was eight years following the age of majority (i.e., to age 26) “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, subd. (a), as
amended by Stats.1990, ch. 1578, § 1, p. 7550.) As of that time, a plaintiff could
not bring an action against a third party such as defendant. But in 1998, section
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never barred “solely because the applicable statute of limitations . . . had expired.”
(§ 340.1, subd. (c).) But, for the following reasons, we believe Shirk’s reasoning
leads to the conclusion that this action is barred for failure to file a timely claim.
As noted, the claim must be presented “not later than six months after the
accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a), italics added.
The cause of action here accrued at the time of the alleged molestation. (Shirk,
supra, 42 Cal.4th at p. 210.) Plaintiff could have sued at that time. We must
340.1 was amended to permit an action against certain third parties. The 1998
amendment provided that the limitations period within section 340.1, 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 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 with resulted in the injury to
the plaintiff.” (Former § 340.1, subd. (a), as amended by Stats.1998, ch. 1032,
§ 1, p. 7785.) The 1998 amendments also provided that no claim against a third
party “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.
The most recent change to section 340.1 came in 2002, when defendant was
still under the age of 26 years. This time, the Legislature amended section 340.1,
subdivision (b), to provide that a plaintiff may bring a claim against a third party
even after the plaintiff’s 26th birthday “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), as amended by Stats. 2002, ch. 149, § 1, pp. 752-753.) Plaintiff relies on
this theory in her lawsuit.
In sum, whenever plaintiff’s claim came close to expiring, the
Legislature expanded the statute of limitations. (See Quarry v. Doe I
(2012) 53 Cal.4th 945, 974 [“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”].
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decide whether the changes to section 340.1 caused it to reaccrue at a later time.
Shirk held the changes did not do so, at least for causes of action that had lapsed
and been revived. But plaintiff argues, and the Court of Appeal found, that a
claim that had never lapsed did reaccrue under section 340.1.
In support of this conclusion, plaintiff and the Court of Appeal rely largely
on Government Code section 901, which provides that “[f]or the purpose of
computing the time limits prescribed by [Government Code] Sections 911.2,
911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a
claim relates is the date upon which the cause of action would be deemed to have
accrued within the meaning of the statute of limitations which would be applicable
thereto if there were no requirement that a claim be presented to and be acted upon
by the public entity before an action could be commenced thereon.” The Court of
Appeal stated: “The accrual date for claim filing purposes is the same as the
accrual date for a corresponding civil cause of action. (Gov. Code, § 901.) Code
of Civil Procedure section 340.1 sets forth the limitations period for filing an
action for childhood sexual abuse. (Quarry v. Doe I (2012) 53 Cal.4th 945, 952
(Quarry).) Thus, section 340.1 governs the accrual date for claim filing
purposes.”
The Court of Appeal’s analysis presents the question of whether section
340.1 provides a new accrual date for purposes of Government Code section 901’s
claims presentation rule. We have distinguished between statutes that postpone
the accrual date for an action and statutes that temporarily suspend the running of
a statute of limitations without affecting the accrual date. In Cuadra v. Millan
(1998) 17 Cal.4th 855, 864-865, disapproved on other grounds in Samuels v. Mix
(1999) 22 Cal.4th 1, 16, fn. 4, we quoted Witkin as “correctly” stating, “ ‘The
statute [of limitations] may be tolled (i.e., its operation suspended) by various
circumstances, events or acts.’ (3 Witkin, Cal. Procedure (4th ed. 1996) Actions,
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§ 407, p. 513, italics added.)” We further explained, “Similarly, statutes and case
law prescribe a number of rules postponing the accrual of a cause of action until a
specified event occurs . . . . Some judicial opinions loosely describe such rules as
‘tolling the statute of limitations,’ but again Witkin puts it more accurately: ‘The
foregoing rules of delayed accrual are to be distinguished from rules that, despite
accrual of the cause of action, toll or suspend the running of the statute.’ (3
Witkin, Cal. Procedure, supra, Actions, § 462, pp. 582-583, italics in original.)”
(Cuadra v. Millan, at p. 865, fn. 11; see 3 Witkin, Cal. Procedure (5th ed. 2008
Actions, § 496, p. 635.
Shirk’s reasoning suggests that, like a tolling statute, section 340.1 does not
postpone the date of accrual. We thus agree with V.C. v. Los Angeles Unified
School Dist. (2006) 139 Cal.App.4th 499, in which the court similarly held that the
section did not provide a new accrual date.
“In making this argument, [the plaintiff] confounds the principles of
limitations periods and accrual dates. Fox v. Ethicon Endo-Surgery. Inc. (2005
35 Cal.4th 797, 806-807, clarified the distinction between and purposes of the two
concepts: ‘ “Statute of limitations” is the collective term applied to acts or parts of
acts that prescribe the periods beyond which a plaintiff may not bring a cause of
action. [Citations.] There are several policies underlying such statutes. One
purpose is to give defendants reasonable repose, thereby protecting parties from
“defending stale claims, where factual obscurity through the loss of time, memory
or supporting documentation may present unfair handicaps.” [Citations.] A
statute of limitations also stimulates plaintiffs to pursue their claims diligently.
[Citations.] A countervailing factor, of course, is the policy favoring disposition
of cases on the merits rather than on procedural grounds. [Citations.] [¶] A
plaintiff must bring a claim within the limitations period after accrual of the cause
of action. (Code Civ. Proc., § 312 [“Civil actions, without exception, can only be
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commenced within the periods prescribed in this title, after the cause of action
shall have accrued”]; Norgart [v. Upjohn Co. (1999) 21 Cal.4th 383,] 397.) In
other words, statutes of limitations do not begin to run until a cause of action
accrues. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 487.) [¶]
Generally speaking, a cause of action accrues at “the time when the cause of
action is complete with all of its elements.” [Citations.]’
“Keeping these principles in mind, we conclude that while section 340.1
extends the time during which an individual may commence a cause of action
alleging childhood sexual abuse, it does not extend the time for accrual of that
cause of action.” (V.C. v. Los Angeles Unified School Dist., supra, 139
Cal.App.4th at pp. 509-510, italics added.
In this respect, section 340.1 is comparable to Code of Civil Procedure
section 340.2 , subdivision (a), which creates a statute of limitations for asbestos-
related injuries of “one year after the date the plaintiff first suffered disability”
(id., subd. (a)(1)) or “one year after the date the plaintiff either knew, or through
the exercise of reasonable diligence should have known, that such disability was
caused or contributed to by such exposure” (id., subd. (a)(2)).
In Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127 (Hamilton), we
concluded that this provision is not a typical accrual rule. The plaintiff in
Hamilton was exposed to asbestos from the early 1940s to 1963. He was
diagnosed with asbestosis in 1979, but was not disabled. His conditioned
worsened, and he filed suit against various asbestos manufacturers in 1993. In
1996, he was diagnosed with mesothelioma, a form of cancer that is also caused
by exposure to asbestos. He then filed a second suit against the asbestos
manufacturers. At issue was whether Code of Civil Procedure section 340.2,
subdivision (a)’s statute of limitations barred the second suit. We held that the suit
was not time-barred. We explained: “Although section 340.2 applies only to
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actions for injury or illness arising from asbestos exposure, the statute does not
make the limitations period run from the date of that injury or illness or its
discovery, as similar statutes commonly provide. [Citation.] Subdivision (a) of
section 340.2 selects a different date, making the limitations period run instead
from the date the plaintiff suffered ‘disability’ and discovered that the disability
was caused by asbestos exposure.” (Hamilton, at p. 1138.) Before section 340.2
was enacted, we said, the accrual date for asbestos-related injuries “was also the
date of the beginning of the limitations period in cases in which the latent injury or
disease arose from exposure to asbestos. [Citation.] But section 340.2 changed
that rule, declaring a separate and distinct date for the beginning of the limitations
period in asbestos cases, i.e., the date of disability as specially defined in the
statute. The result . . . is that although the filing of an action for asbestos-related
injury may be said . . . to be an ‘admission’ that the cause of action has accrued in
the ripeness sense, it is not an admission that the limitations period of section
340.2 has simultaneously begun.” (Hamilton, at pp. 1144-1145.
Section 340.1 is similar to Code of Civil Procedure section 340.2,
subdivision (a). While a cause of action for childhood sexual abuse generally
accrues much earlier “in the ripeness sense” — a plaintiff will have a ripe cause of
action that could be brought much closer in time to the alleged abuse — section
340.1 creates “a separate and distinct date for the beginning of the limitations
period” (Hamilton, supra, 22 Cal.4th at pp. 1144-1145) in certain child sex abuse
cases involving latent injuries, i.e., “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.” (§ 340.1, subd. (a).
Government Code section 901’s reference to “accrual” of the cause of
action for which a claim must be made tracks Hamilton’s distinction between
accrual in “the ripeness sense” (Hamilton, supra, 22 Cal.4th at p. 1145) — i.e., the
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time at which all the elements of a cause of action are present — and the
beginning of a separate, extended limitations period for latent injury stemming
from the same known wrongful act. Plaintiff’s cause of action had accrued in the
ripeness sense at the latest in 1994, the time of the last alleged molestation.
Section 340.1 did not cause it to reaccrue.
Our holding in Shirk, supra, 42 Cal.4th 201, supports this conclusion. If
Government Code section 901’s reference to “accrual” had encompassed the
beginning of a separate, extended limitations period for latent injury stemming
from known abuse, then presumably the plaintiff’s claim in Shirk would have been
timely, whether or not she had filed a timely claim immediately after the abuse
occurred. Shirk expresses the contrary conclusion that, for purposes of the claim
presentation requirement, the cause of action accrued when the abuse occurred —
and, additionally, no cause of action accrued at the time the latent injury stemming
from the abuse was discovered.
Our opinion in Quarry also reflects this understanding of Shirk’s
implications: “[I]f 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
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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.” (Quarry v. Doe I, supra, 53 Cal.4th at pp. 982-983, fn. 11.
Thus, the logical implication of Shirk’s rejection of the plaintiff’s
alternative argument that her government claim was timely filed under the delayed
discovery rule — an implication underscored by this court’s later decision in
Quarry — undermines a finding of timeliness in this case.
Moreover, the public policies behind the claim presentation requirement
that we identified in Shirk, supra, 42 Cal.4th 201, apply equally here as in that
case. Permitting a claim made in 2012 to suffice for molestation that allegedly
occurred from 1993 to 1994 would contravene those policies. A public entity
cannot plan for a fiscal year if it may be subject to an unknown and unknowable
number of ancient claims like this one. It is probably too late today to
meaningfully investigate the facts behind the claim and reach reliable conclusions;
even if some investigation is still possible, a claim timely filed in 1993 or 1994
would certainly have been easier to investigate and would have allowed for more
reliable conclusions. It is also too late to prevent the alleged abuser from abusing
again.
Recent legislation in response to Shirk, supra, 42 Cal.4th 201, demonstrates
that the Legislature, in amending the statutory scheme, has endeavored to take
account of these policy concerns. “In direct response to Shirk, the Legislature
enacted Government Code section 905, subdivision (m) . . . .” (A.M. v. Ventura
Unified School Dist. (2016) 3 Cal.App.5th 1252, 1258; see Stats. 2008, ch. 383,
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§ 1, pp. 3002-3003.) Government Code section 905 provides exceptions to the
government claims requirement. The new subdivision (m) of that section added
another exception: “Claims made pursuant to Section 340.1 of the Code of Civil
Procedure for the recovery of damages suffered as a result of childhood sexual
abuse. This subdivision shall apply only to claims arising out of conduct
occurring on or after January 1, 2009.” (Gov. Code, § 905, subd. (m).) This
amendment does not directly apply here. No one is arguing that the claim
requirement does not apply to plaintiff at all; instead, the parties are disputing
whether her claim was timely under then-existing law. But the amendment shows
that the Legislature has attempted to balance the important objectives underlying
the statutory scheme with practical concerns about permitting the litigation of old
claims against governmental entities.
The legislative history behind the new Government Code section 905,
subdivision (m), makes clear the Legislature overruled Shirk, supra, 42 Cal.4th
201, only prospectively due to fiscal considerations. A committee report
explained: “This bill is intended to address the Shirk decision by expressly
providing that childhood sexual abuse actions against public entities are exempted
from the government tort claims requirements and the six-month notice
requirement. It is identical to SB 1339 (Simitian), except that this bill applies
prospectively only, to claims arising out of conduct occurring on or after January
1, 2009. SB 1339 passed out of the Senate Judiciary Committee unanimously, but
was held in suspense in the Senate Appropriations. The change from SB 1339
should reduce the bill’s financial impact on local public entities.” (Assem. Com.
on Judiciary, Analysis of Sen. Bill No. 640 (2007-2008 Reg. Sess.), as amended
June 9, 2008, p. 3; see Sen. Rules Com., Analysis of Sen. Bill No. 640 (2007-2008
Reg. Sess.), as amended July 14, 2008, pp. 1, 3 [similar].
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In this way, during the calendar year 2008, the Legislature put
governmental entities on notice that for conduct allegedly occurring on or after
January 1, 2009, they would have to protect themselves as best they could against
possible stale claims. But the Legislature also intended to protect those entities
from such claims for conduct occurring before that date. This legislative intent
supports our conclusion that plaintiff’s 2012 claim for conduct allegedly occurring
from 1993 to 1994 was untimely.
Our opinion in Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at page
808, listed section 340.1 as among the statutes affecting the accrual date. But the
instant issue was not before us in that case, and the listing contained no analysis.
Our more recent opinion in Quarry v. Doe I, supra, 53 Cal.4th 945, which, as
explained, considered Shirk, supra, 42 Cal.4th 201, and aptly explained its
significance, correctly described section 340.1 as “tolling the limitations period for
the underlying claim.” (Quarry, at p. 981, italics added.
Plaintiff also argues that “the equitable doctrine of delayed discovery
applies and warrants a finding that plaintiff’s claim was timely.” However, once
we conclude, as we do, that section 340.1 did not establish a new accrual date, our
reasons for rejecting a similar argument in Shirk, supra, 42 Cal.4th at page 214,
apply here. We there explained that “it seems most unlikely” the Legislature
intended to permit a late claim for someone who discovered only in 2012 “a new
injury attributable to the same predicate facts underlying a cause of action
previously barred by failure to comply with the government claims statute.”
(Ibid.) As we concluded in Quarry v. Doe 1, supra, 53 Cal.4th at page 984, “we
do not believe the Legislature intended that common law delayed discovery
principles should apply to cases governed by section 340.1.”
Finally, plaintiff makes the closely related argument that her delayed adult
awareness of her injury created its own cause of action with its own accrual date.
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We disagree for similar reasons. In Quarry v. Doe I, supra, 53 Cal.4th at pages
981-983, we considered the various amendments to section 340.1. We explained
that the 1990 amendment “did not treat adult psychological injury as an entirely
separate and new injury.” (Quarry, at p. 982.) Later amendments were also
“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.”
(Ibid.)2
The dissent complains that today’s holding, and presumably that of Shirk,
supra, 42 Cal.4th 201, effectively give public entities immunity from liability for
lawsuits like this one. (Dis. opn., post, at p. 2.) When the Legislature amended
section 340.1 without modifying the claims requirement, and later overruled Shirk,
but only prospectively, it took measured actions that protected public entities from
potential liability for stale claims regarding conduct allegedly occurring before
January 1, 2009, in which the public entity had no ability to do any fiscal planning,
or opportunity to investigate the matter and take remedial action.
2
K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229
erroneously concluded that section 340.1 affected the accrual date of a claim for
childhood sexual abuse, and that the delayed discovery doctrine made the late
claim timely. (K.J., at pp. 1233, 1241-1244.) We disapprove K.J. v. Arcadia
Unified School Dist., supra, 172 Cal.App.4th 1229 to the extent it is inconsistent
with this opinion.
16

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For these reasons, we reverse the judgment of the Court of Appeal and
remand the matter to that court for further proceedings consistent with this
opinion.
CHIN, J.

WE CONCUR:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
17

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DISSENTING OPINION BY WERDEGAR, J.
I disagree with the court’s conclusion that plaintiff Rubenstein’s suit is
barred. The court holds her cause of action accrued when she was molested by a
high school track coach, at the age of 14, and then lapsed six months later when
she failed to present a claim to the school district. This reasoning, in my view,
reflects a misunderstanding of Code of Civil Procedure section 340.1 (hereafter
section 340.1) and its relationship to the statutes that regulate the government-
claims process (Gov. Code, § 900 et seq.). I respectfully dissent.
Section 340.1 permits a victim of childhood sexual abuse to bring suit
“within eight years of the date the plaintiff attains the age of majority or within
three years of the date the plaintiff discovers or reasonably should have discovered
that psychological injury or illness occurring after the age of majority was caused
by the sexual abuse, whichever period expires later . . . .” (Id., subd. (a).) The
1990 legislation that added this language to section 340.1 (Stats. 1990, ch. 1578,
§ 1, p. 7550) was intended to supersede DeRose v. Carswell (1987) 196
Cal.App.3d 1011. (See Quarry v. Doe I (2012) 53 Cal.4th 945, 963 (Quarry);
Sen. Com. on Judiciary, Analysis of Sen. Bill No. 108 (1989–1990 Reg. Sess.) as
amended Feb. 6, 1989, pp. 2–3 [discussing DeRose].) Two years earlier, the court
in DeRose had held a claim based on sexual abuse accrued immediately based on a
simplistic analogy to the law of assault, under which a touching “perceived as
unconsented to and offensive . . . causes harm as a matter of law.” (DeRose, at

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p. 1018.) DeRose met with harsh criticism in the Legislature, which was informed
that psychological evidence showed “most victims of childhood sexual abuse
either repress their memories of the abuse or are unable to appreciate their injuries
until well into their adult years.” (Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 108, supra, at p. 3.) The Legislature responded by codifying the delayed
discovery rule in section 340.1, in order to “recognize the need for all victims of
childhood sexual abuse to be allowed a longer time period in which to become
aware of . . . their psychological injuries and remain eligible to bring suit.” (Sen.
Com. on Judiciary, Analysis of Sen. Bill No. 108, supra, at p. 2; see Quarry, at
p. 963.
The Legislature’s landmark effort to expand victims’ access to the courts
does not help Latrice Rubenstein, the majority reasons, because section 340.1
tolls, or suspends the running of, the statute of limitations for childhood sexual
abuse claims rather than delaying those claims’ accrual. The arcane difference
between tolling and delayed accrual makes little or no difference to plaintiffs who
are suing private parties. But someone suing a public entity must present a claim
within six months after his or her cause of action accrues or the claim is lost.
(Gov. Code, § 911.2, subd. (a).) By construing section 340.1 as a tolling statute,
while at the same time applying the deprecated rule that claims for childhood
sexual abuse accrue at the time of the abuse (maj. opn., ante, at p. 7), the majority
offers public entities the practical equivalent of immunity in the very set of cases
that prompted the Legislature to amend section 340.1 — cases in which the
psychological harm caused by childhood sexual abuse is first discovered in
adulthood. This result cannot fairly be attributed to the Legislature, which
amended section 340.1 over the strong objection of public school districts. (See
Nancy Bourne, Breon, O’Donnell & Miller, letter to Assembly Member Phillip
Isenberg, Aug. 9, 1989 [“The burden on a defendant such as a public school
2

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teacher to prove he/she did not commit child abuse 30 years after the fact is
insurmountable.”]; see also Nancy Bourne, Breon, O’Donnell, Miller, Brown &
Dannis, letter to all Assembly Members, May 2, 1990 [same].
Section 340.1 is most naturally read as delaying the accrual of claims for
sexual abuse rather than tolling the statute of limitations. The section sets “the
time for commencement of the action” by reference to “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 . . . .” (Id.,
subd. (a).) This is the language of delayed discovery—the “ ‘most important’ ”
exception to the ordinary rule that a “ ‘cause of action ordinarily accrues when . . .
the wrongful act is done and the obligation or liability arises . . . .’ ” (Brisbane
Lodging, L.P. v. Webcor Builders, Inc. (2013) 216 Cal.App.4th 1249, 1257,
quoting 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 493, p. 633, and § 497,
p. 635.) The delayed discovery rule “ ‘postpones accrual of a cause of action until
the plaintiff discovers, or has reason to discover, the cause of action.’ ” (Grisham
v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 634, quoting Fox v. Ethicon
Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806–807 (Fox).
The legislative history of Code of Civil Procedure section 340.1 clearly and
repeatedly describes the statute as intended to delay accrual and not to toll the
statute of limitations. Multiple legislative committee reports explained the bill
“would expressly provide for delayed discovery accrual . . . .” (Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 108, supra, at p. 2, as amended Feb. 6, 1989,
italics added; see Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill
No. 108 (1989–1990 Reg. Sess.) March 31, 1989, p. 1 [same]; Sen. Rules Com.,
Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 108 (1989–1990 Reg. Sess.
Aug. 20, 1990, p. 2 [same].) An enrolled bill report provided to the Governor
before he signed the legislation also describes the proposed legislation as
3

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“provid[ing] for delayed discovery accrual . . . .” (Cal. Off. of Crim. Justice
Planning, Enrolled Bill Rep. on Sen. Bill No. 108 (1989–1990 Reg. Sess.
prepared for Governor Deukmejian (Aug. 28, 1990) p. 1; see id., at p. 2 [same].
One may infer the Legislature appreciated the distinction between delayed accrual
and tolling because the proposed legislation was described as “expressly
provid[ing] for delayed discovery accrual,” while then-existing law (Code Civ.
Proc., § 352) was described as “toll[ing] statutes of limitations during a plaintiff’s
minority.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 108, supra, at p. 2,
italics added.) In the entire legislative history, only a single sentence in a single
report uses the language of tolling to describe the effect of the proposed
amendment to section 340.1. (Assem. Com. on Judiciary, Rep. on Sen. Bill No.
108 (1989–1990 Reg. Sess.) as amended Aug. 21, 1989, p. 6 [under the proposed
amendment to section 340.1, “the running of the statute of limitation could be
tolled indefinitely”].) But this report does not mention or reject the commonly
expressed understanding that the amendment would in fact delay accrual.
Various public policies affecting the government claims process play a strong
role in the majority’s analysis. (See maj. opn., ante, at p. 13–15; cf. id., at pp. 4–
5.) Those policies logically inform our interpretation of the statutes that regulate
the claims process. (See Gov. Code, § 900 et seq.) But the same policies do not
logically or legitimately inform the interpretation of generally applicable statutes
of limitations such as section 340.1. This is because the Legislature has declared
that the date on which a claim accrues, for purposes of the claims process, “is the
date upon which the cause of action would be deemed to have accrued within the
meaning of the statute of limitations which would be applicable thereto if there
were no requirement that a claim be presented to and be acted upon by the public
entity before an action could be commenced thereon.” (Gov. Code, § 901, italics
added.) To construe section 340.1 as tolling the statute of limitations instead of
4

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delaying its accrual—in order to serve the policies underlying the claims
process—is inconsistent with the Legislature’s decision to allow generally
applicable law to determine the date of accrual. (Gov. Code, § 901.) In other
words, section 901 expressly disallows accrual rules that are specific to the
government claims process, such as the majority’s novel pronouncement that
section 901 refers to accrual “ ‘in the ripeness sense.’ ” (Maj. opn., ante, at p. 11.
The majority makes the same mistake by invoking Government Code section
905, subdivision (m), as support for its interpretation of section 340.1. (See maj.
opn., ante, at pp. 13–15.) Section 905 categorically exempts plaintiffs who sue
public entities for childhood sexual abuse from the need to submit claims.
Because this law applies “only to claims arising out of conduct occurring on or
after January 1, 2009” (Gov. Code, § 905, subd. (m)), the majority describes the
amendment as showing a legislative concern about the financial impact on
governmental entities of older claims like that of plaintiff Rubenstein. (See Maj.
opn., ante, at pp. 13–14.) The Legislature is presumably always concerned with
the public treasury. But despite that proper concern, the Legislature has not
modified the statutory rule that claims accrue against public entities at the same
time they would accrue as “if there were no requirement that a claim be presented
. . . .” (Gov. Code, § 901, italics added.) Accordingly, the only reasonable
interpretation of section 905, subdivision (m), is that it does not affect the accrual
of claims based on pre-1990 conduct. (See City of Pasadena v. Superior Court
(2017) 12 Cal.App.5th 1340, 1352 [“Nor did the Legislature address the date of
accrual for such claims.”].) Instead, the timing of accrual is left to generally
applicable law, in this case section 340.1.
No controlling precedent supports the court’s interpretation of section 340.1.
The case law that does exist offers more opposition to, than support for, that
interpretation. In Fox, supra, 35 Cal.4th 797, 808, albeit in dictum, we described
5

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section 340.1 as “making accrual of a cause of action contingent on when a party
discovered or should have discovered that his or her injury had a wrongful cause.”
(Italics omitted.) Not in dictum, the Court of Appeal in K.J. v. Arcadia Unified
School Dist. (2009) 172 Cal.App.4th 1229, 1241–1243, held that section 340.1
delays the accrual of claims for childhood sexual abuse until the plaintiff discovers
that adult psychological injury was caused by childhood sexual abuse. The
majority summarily disapproves that adverse precedent in a footnote (maj. opn.,
ante, at p. 16, fn. 2) and relies instead on V.C. v. Los Angeles Unified School Dist.
(2006) 139 Cal.App.4th 499. But V.C., like the majority, commits the error of
interpreting section 340.1 through the lens of the government claims process. V.C.
ultimately depends on the premise that to read section 340.1 as delaying accrual
would in effect “override” (V.C., at p. 511) or “carve out an exception to the
claims requirements.” (V.C., at p. 512.) This method of analysis is illegitimate, as
I have explained (ante, at pp. 2–3), given the Legislature’s decision to apply
generally applicable law to determine when a cause of action accrues for the
purpose of a claim against the government. (See Gov. Code, § 901.
The remaining decisions on which the majority relies provide no meaningful
support for their conclusion. Neither Shirk v. Vista Unified School Dist. (2007) 42
Cal.4th 201 (Shirk), nor Quarry, supra, 53 Cal.4th 945, decided whether section
340.1 is properly interpreted as tolling, or as delaying the accrual of, claims for
childhood sexual abuse. And Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127
(Hamilton), interpreted a statute of limitations (Code Civ. Proc., § 340.2) that is
critically different than section 340.1.
In Shirk, supra, 42 Cal.4th 201, the plaintiff conceded her cause of action for
sexual abuse committed by a high school teacher between 1977 and 1979 had been
extinguished by her failure to present a claim in 1980. (Id. at p. 210.) In view of
this concession, the question before the court was whether a 2002 amendment to
6

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section 340.1 (see Stats. 2002, ch. 149, § 1, p. 753 [adding § 340.1, subd. (c)]) had
revived her claim. The amended statute revived only those causes of action that
were barred “solely because the applicable statute of limitations has or had
expired” (§ 340.1, subd. (c), italics added) as of January 1, 2003. We held the
statute did not revive the plaintiff’s claim because it was “not barred ‘solely’ by
lapse of the applicable statute of limitations” (Shirk, at p. 213), but also because
she had not presented a timely claim to the school district (ibid.). The plaintiff
made the alternative argument that her claim first accrued when she learned the
abuse had caused adult psychological harm. (Id. at p. 214.) The court did not
dispose of that argument by interpreting 340.1 as tolling, rather than delaying the
accrual, of claims. Instead, the court simply reiterated its earlier conclusion that
the 2002 amendment had not revived plaintiff’s already extinguished claim.
(Ibid.
Our decision in Quarry, supra, 53 Cal.4th 945, also concerned the 2002
revival statute. (§ 340.1, subd. (c).) The court held the plaintiff’s claims against a
church for sexual molestation committed by a priest were not revived because the
plaintiffs had failed to bring their action within the one-year period prescribed by
the revival statute. Arguing against this conclusion, the plaintiffs’ asserted “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” and that, in consequence, they “had no need for
the revival of their previously barred claims.” (Quarry, at p. 981, italics added.
We rejected the argument because “[t]here [was] no indication in [section 340.1]
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.” (Quarry, at p. 982.) This holding sheds no light
on the case before us. Plaintiff Rubenstein does not argue that her present claim,
7

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which includes damages for adult psychological harm, is separate from her claim
for the childhood molestation. Instead, she argues she has a single claim for all
injuries caused by sexual molestation, and that section 340.1 delayed its accrual.
The majority tries to find some guidance in Quarry’s treatment of Shirk,
supra, 42 Cal.4th 201. (See maj. opn., ante, at pp. 12–13.) But in the passage on
which the majority relies, the Quarry court went no farther than to hold, once
again, that a claim for adult psychological injuries caused by childhood sexual
abuse is not separate from a claim based on the assault itself.1 Quarry did not
hold that section 340.1 tolls the statute of limitations, rather than delaying accrual,
until adult harm is discovered. That question was not before the court.
The majority makes much of a single sentence in Quarry, supra, 53 Cal.4th
945, noting the 1990 amendment to section 340.1 was intended “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.” (Quarry, at p. 981, italics added, quoted in maj. opn., ante, at
p. 15.) But this sentence cannot fairly be understood to reject, even in dictum, the
argument that section 340.1 provides for delayed discovery accrual, as the
Legislature intended. Instead, the sentence provides context for the sentences that
immediately follow, wherein the court again reiterates its holding that “the
1
See Quarry, supra, 53 Cal.4th at pages 982–983, footnote 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. . . . [I]f 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.” (Italics added.
8

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amendment did not treat adult psychological injury as an entirely separate and new
injury. Rather, the new language [of section 340.1] was intended to afford victims
a longer period in which to become aware of their injuries.” (Quarry, at p. 982.
The Quarry court also described the 1990 amendment consistently with its
legislative history as creating a “statutory delayed discovery rule” that would
supersede DeRose, supra, 196 Cal.App.3d 1011. (Quarry, at p. 983.
Finally the majority relies on Hamilton, supra, 22 Cal.4th 1127. (See maj.
opn., ante, at pp. 10–12.) But Hamilton had nothing to do with section 340.1.
Hamilton construed Code of Civil Procedure section 340.2, subdivision (a), which
provides that, “[i]n any civil action for injury or illness based upon exposure to
asbestos, the time for the commencement of the action” is “[w]ithin one year after
the date the plaintiff first suffered disability” or “either knew, or through the
exercise of reasonable diligence should have known, that such disability was
caused or contributed to by such exposure.” As the Hamilton court explained, the
“intent of the Legislature in enacting section 340.2 . . . was . . . to provide a special
statute of limitations for asbestos-related illnesses consistent with the fact that
such slowly developing occupational diseases typically become symptomatic long
before they become disabling, at least in the sense of disabling their victims from
continuing to do their regular job.” (Hamilton, at p. 1139.) Given the purpose of
the statute, the court construed it as declaring a “date for the beginning of the
limitations period in asbestos cases” that was “separate and distinct” (id. at
pp. 1144–1145) from the date on which the claim accrued. In other words, while
“the filing of an action for asbestos-related injury may be said . . . to be an
‘admission’ that the cause of action has accrued in the ripeness sense, it is not an
admission that the limitations period of section 340.2 has simultaneously begun.”
(Hamilton, at p. 1145.
9

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The majority asserts that section 340.2 is similar to section 340.1. (Maj.
opn., ante, at p. 11.) Not so. The Legislature expressly limited the application of
section 340.2 “to those causes of action which accrued prior to the change in the
law” brought about by the enactment of section 340.2. (Stats. 1979, ch. 513, § 2,
p. 1690, italics added.) This uncodified statute made the holding in Hamilton,
supra, 22 Cal.4th 1127, unavoidable: The court could effectuate the purpose of
section 340.2 only by extending the limitations period for claims that had, by
definition already accrued. To interpret the statute as delaying the accrual of those
claims was not an option. In this critical respect, section 340.1 differs from
section 340.2. In 1990, when the Legislature amended section 340.1 to set “the
time for commencement of the action” by reference to “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” (id., subd. (a)),
the Legislature did not limit the amended statute’s application to claims that had
already accrued, as it did with section 340.2. More importantly, as already
discussed (ante, at pp. 4–5), the Legislature understood the 1990 amendment
“would expressly provide for delayed discovery accrual . . . .” (Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 108, supra, at p. 2, italics added.
In conclusion, I urge the Legislature to read today’s decision and determine
for itself whether the majority’s holding accurately reflects the intended meaning
and purpose of section 340.1. “ ‘Statutes of limitation are products of legislative
authority and control’ ” (Valley Circle Estates v. VTN Consolidated, Inc. (1983
33 Cal.3d 604, 615) and should reflect the Legislature’s policy goals rather than
those of the judicial branch. Prior judicial decisions unduly restricting sexual
abuse victims’ access to the courts have repeatedly led the Legislature to amend
10

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both section 340.1 and the claims statutes.2 This case suggests section 340.1 may
require further clarification.
2
See Quarry, supra, 53 Cal.4th at pages 963–964 (noting the 1990 and 1994
amendments to section 340.1 superseded DeRose v. Carswell, supra, 196
Cal.App.3d 1011, and David A. v. Superior Court (1993) 20 Cal.App.4th 281);
City of Pasadena v. Superior Court, supra, 12 Cal.App.5th 1340,1352 (noting
Gov. Code, § 905, subd. (m), superseded Shirk, supra, 42 Cal.4th 201). See also
Quarry, at pages 1002–1003 (dis. opn. of Liu, J.).
11

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For all of these reasons I respectfully dissent.
WERDEGAR, J.
WE CONCUR:
LIU, J.
CUÉLLAR, J.

12

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Rubenstein v. Doe No. 1

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Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 245 Cal.App.4th 1037
Rehearing Granted

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Opinion No. S234269
Date Filed: August 28, 2017

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Court: Superior
County: Imperial
Judge: Juan Ulloa

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Counsel:
Law Offices of Elliot N. Kanter, Elliott N. Kanter; Esner, Chang & Boyer, Holly N. Boyer and Shea S.
Murphy for Plaintiff and Appellant.
Family Violence & Sexual Assault Institute and Institute on Violence, Abuse & Trauma as Amici Curiae
on behalf of Plaintiff and Appellant.
Daley & Heft, Lee H. Roistacher, Richard J. Schneider, Reece A Roman; Jackson Lewis, Leila Nourani,
Sherry L. Swieca and Douglas M. Egbert for Defendants and Respondents.

Leone & Alberts, Louis A. Leone and Seth L. Gordon for Northern California Regional Liability Excess
Fund, Southern California Regional Liability Excess Fund, Statewide Association of Community Colleges
and School Association for Excess Risk as Amici Curiae on behalf of Defendants and Respondents.
Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici
Curiae on behalf of Defendants and Respondents.

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Counsel who argued in Supreme Court (not intended for publication with opinion):
Holly N. Boyer
Esner, Chang & Boyer
234 East Colorado Boulevard, Suite 975
Pasadena, CA 91101
(626) 535-9860
Lee H. Roistacher
Daley & Heft
462 Stevens Avenue Suite 201
Solana Beach, CA 92075
(858) 755-5666
Seth L. Gordon
Leone & Alberts
2175 N. California Boulevard, Suite 900
Walnut Creek, CA 94596
(925) 974-8600

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Opinion Information

Date:	Docket Number:
Mon, 08/28/2017	S234269

Disposition
Aug 28 2017	Opinion: Reversed

Dockets
May 4 2016	Petition for review filed Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher CRC 8.25(b).
May 4 2016	Record requested
May 4 2016	Note: Court of Appeal record has been imported and is available in electronic format.
May 6 2016	Received Court of Appeal record one doghouse
May 23 2016	Request for depublication (petition for review pending) Pub/Depublication Requestor: Brawley Union High SchoolAttorney: Lee Harris Roistacher
May 24 2016	Answer to petition for review filed Plaintiff and Appellant: Latrice RubensteinAttorney: Elliott N. Kanter
Jun 6 2016	Reply to answer to petition filed Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher (CRC 8.25(b))
Jun 15 2016	Petition for review granted Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Liu, Cuéllar and Kruger, JJ. Corrigan, J., was absent and did not participate.
Jun 27 2016	Certification of interested entities or persons filed By Holly Boyer, counsel for appellant.
Jun 27 2016	Certification of interested entities or persons filed By Lee Harris Roistacher, counsel for respondent.
Jul 8 2016	Request for extension of time filed Lee H. Roistacher, counsel for respondent Doe #1, requests a 31-day extension to August 15, 2016, to file opening brief on the merits.
Jul 13 2016	Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 15, 2016. No further extensions of time are contemplated.
Jul 13 2016	Association of attorneys filed Respondent Doe No. 1 associates Leila Nourani, Sherry Swieca, and Douglas Egbert of Jackson Lewis P.C. as counsel of record for all purposes.
Aug 16 2016	Opening brief on the merits filed Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher Opening brief on the merits filed.Due on 08/15/2016 By 31 Day(s) (CRC 8.25(b))
Aug 16 2016	Request for judicial notice filed Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher
Aug 31 2016	Request for extension of time filed Holly N. Boyer, counsel for appellant, seeks 30 days' extension to October 14, 2016, to file answer brief on merits.
Sep 6 2016	Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 14, 2016. No further extension of time is contemplated.
Oct 17 2016	Answer brief on the merits filed Plaintiff and Appellant: Latrice RubensteinAttorney: Holly Noelle Boyer Answer brief on the merits filed.Due on 10/14/2016 By 30 Day(s) (CRC 8.25(b))
Nov 8 2016	Reply brief filed (case fully briefed) Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher (CRC 8.25(b))
Nov 23 2016	Oral argument letter sent Dear Counsel: Please be advised that the court could set this case for argument within the next few months. Schedules showing the court's oral argument dates and locations for the next twelve months can be found at http://www.courts.ca.gov/supremecourt.htm by clicking on "calendars, " and then accessing the "Oral Argument Calendar Dates" documents. Any counsel who believes good cause exists not to schedule oral argument for a particular date should inform the court immediately with a detailed explanation for such cause. Once the court files an order setting this case for oral argument, that date will not be changed absent exceptional cause, such as a medical emergency. Immediately upon filing of the calendar setting this case for argument, the court will send counsel an email communication with (1) a copy of that document; (2) an appearance sheet, upon which counsel must provide the names of the attorney or attorneys who will present argument, along with further instructions governing any request to divide argument time; and (3) a general notice regarding appearance for oral argument before the court.  If a party wishes to bring to the court's attention new authorities, new legislation, or other matters that were not available in time to be included in the party's brief on the merits, the party must comply with California Rules of Court, rules 8.630(d) and 8.520(d).
Dec 5 2016	Application to file amicus curiae brief filed Seth Gordon, counsel for amici curiae Northern California Regional Liability Excess Fund, Southern California Regonal Liability Excess Fund, Statewide Associaton of Community Colleges, and School Association for Excess Risk, seeks permission to file amicus brief in support of respondent. (Amicus Brief contained within application.)
Dec 8 2016	Notice of Unavailability of Counsel Filed Counsel unavailable: February 6-10, 2017 May 1-5, 2017 June 5-9, 2017 Doe No. 1, Defendant and Respondent Sherry L. Swieca, Retained counsel
Dec 8 2016	Application to file amicus curiae brief filed By Jennifer B. Henning, counsel for amici curiae California Association of Counties and League of California Cities, in support of respondent.(Application contained within brief.)
Dec 9 2016	Application to file amicus curiae brief filed By Brittany Crowell, Licensed Psychologist and Clinical and Forensic Case Manager for amicus curiae Family Violence & Sexual Assault Institute and Institute on Violence, Abuse & Trauma, in support of appellant. (Application contained within brief.)
Dec 14 2016	Letter sent to: Letter from the court dated December 14, 2016, informing counsel for respondent Doe No. 1 that the requests filed December 1, 2016, to avoid certain oral argument dates are not supported by good cause8
Dec 23 2016	Permission to file amicus curiae brief granted The application of Northern California Regional Liability Excess Fund, Southern California Regional Liability Excess Fund, Statewide Association of Community Colleges, and School Association for Excess Risk for permission to file an amicus curiae brief in support of respondent is hereby granted. (See Cal. Rules of Court, rule 8.520(f).)
Dec 23 2016	Amicus curiae brief filed Amicus curiae: Northern California Regional Liability Excess FundAttorney: Seth L. Gordon Amicus curiae: Southern California Regional Liability Excess FundAttorney: Seth L. Gordon Amicus curiae: Statewide Association of Community CollegesAttorney: Seth L. Gordon Amicus curiae: School Association for Excess RiskAttorney: Seth L. Gordon
Dec 23 2016	Permission to file amicus curiae brief granted The application of California State Association of Counties and League of California Cities for permission to file an amicus curiae brief in support of respondent is hereby granted. (See Cal. Rules of Court, rule 8.520(f).)
Dec 23 2016	Amicus curiae brief filed Amicus curiae: California State Association of CountiesAttorney: Jennifer Bacon Henning Amicus curiae: League of California CitiesAttorney: Jennifer Bacon Henning
Dec 23 2016	Permission to file amicus curiae brief granted The application of Family Violence & Sexual Assault Institute and Institute on Violence, Abuse & Trauma for permission to file an amicus curiae brief in support of appellant is hereby granted. (See Cal. Rules of Court, rule 8.520(f).)
Dec 23 2016	Amicus curiae brief filed Amicus curiae: Family Violence & Sexual Assault Institute Amicus curiae: Institute on Violence, Abuse & Trauma
Jan 23 2017	Response to amicus curiae brief filed Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher (CRC 8.25(b))
Jan 25 2017	Response to amicus curiae brief filed Plaintiff and Appellant: Latrice RubensteinAttorney: Shea S. Murphy joint answer to amici curiae briefs crc.8.25(b)
May 10 2017	Case ordered on calendar To be argued on Tuesday, May 30, 2017, at 9:00 a.m., in San Francisco.
May 17 2017	Case ordered on calendar To be argued on Tuesday, May 30, 2017, at 9:00 a.m., in San Francisco. ** ** First amended calendar issued this date. Please note that F.P. v. Monier (Joseph), S216566 is to be called and continued to the September 2017 calendar. Additionally, People v. Pennington (Bryan M.), S222227 has moved to the morning session.
May 19 2017	Application filed Application to divide oral argument time. Doe No. 1, Defendant and Respondent Lee Harris Roistacher, Retained counsel Northern California Regional Liability Excess Fund et al., Amici curiae Seth L. Gordon, Retained counsel
May 22 2017	Request for judicial notice denied The request for judicial notice filed on August 16, 2016, is denied.
May 23 2017	Request for judicial notice granted The order filed May 22, 2017, denying the request for judicial notice is hereby amended to read in its entirety: The request for judicial notice filed on August 16, 2016, is granted.
May 24 2017	Order filed The request of respondent to allocate to amici curiae Northern California Regional Liability Excess Fund et al. 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
May 30 2017	Cause argued and submitted
Aug 25 2017	Notice of forthcoming opinion posted To be filed on Monday, August 28, 2017 at 10:00 a.m.
Aug 28 2017	Opinion filed: Judgment reversed We reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with this opinion. Majority Opinion by Chin, J. -- joined by Cantil-Sakauye, C. J., Corrigan, and Kruger, JJ. Dissenting Opinion by Werdegar, J. -- joined by Liu and Cuéllar, JJ.
Sep 14 2017	Rehearing petition filed Plaintiff and Appellant: Latrice RubensteinAttorney: Holly Noelle Boyer crc.8.25(b)
Sep 15 2017	Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 26, 2017 or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 20 2017	Answer to rehearing petition filed Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher

Briefs
Dec 23 2016	Amicus curiae brief filed Amicus curiae: California State Association of CountiesAttorney: Jennifer Bacon Henning Amicus curiae: League of California CitiesAttorney: Jennifer Bacon Henning
Aug 16 2016	Opening brief on the merits filed Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher
Oct 17 2016	Answer brief on the merits filed Plaintiff and Appellant: Latrice RubensteinAttorney: Holly Noelle Boyer
Jan 25 2017	Response to amicus curiae brief filed Plaintiff and Appellant: Latrice RubensteinAttorney: Shea S. Murphy
Dec 23 2016	Amicus curiae brief filed Amicus curiae: Family Violence & Sexual Assault Institute Amicus curiae: Institute on Violence, Abuse & Trauma
Jan 23 2017	Response to amicus curiae brief filed Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher
Dec 23 2016	Amicus curiae brief filed Amicus curiae: Northern California Regional Liability Excess FundAttorney: Seth L. Gordon Amicus curiae: Southern California Regional Liability Excess FundAttorney: Seth L. Gordon Amicus curiae: Statewide Association of Community CollegesAttorney: Seth L. Gordon Amicus curiae: School Association for Excess RiskAttorney: Seth L. Gordon
Nov 8 2016	Reply brief filed (case fully briefed) Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher

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