Supreme Court of California Justia
Docket No. S234269M

Rubenstein v. Doe No. 1


Filed 11/1/17
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


ORDER MODIFYING OPINION AND
DENYING PETITION FOR REHEARING
THE COURT:
The opinion in this matter filed August 28, 2017, and appearing at 3 Cal.5th
903, is modified as follows:
1.
On page 910 of the opinion, the first full paragraph beginning, “As noted, the
claim must be presented” is modified to read as follows:
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.) A cause of action for childhood sexual molestation generally
accrues at the time of the alleged molestation. (Shirk, supra, 42 Cal.4th at
p. 210.) Plaintiff could have sued at that time. We must decide whether
the changes to section 340.1 caused her action to accrue later or to
reaccrue at a later time. Shirk held the changes did not do so, at least for
1

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 not
accrue under section 340.1 until a later time.
2.
On page 913 of the opinion, the sentence that reads “Section 340.1 did not
cause it to reaccrue.” is modified to read as follows:
Section 340.1 did not delay accrual or cause the action to reaccrue.
3.
On page 915 of the opinion, at the end of the third full paragraph, the following
footnote is added as footnote 2:
We do not address any question regarding those plaintiffs whose civil
actions would be timely under section 340.1, subdivision (a), without
reliance on the statute’s delayed discovery provisions because they are
brought within eight years of majority. Specifically, we do not decide
whether such a plaintiff may rely on judicially recognized principles of
delayed discovery to postpone accrual for purposes of Government Code
section 911.2.
4.
On page 916 of the opinion, footnote 2 is renumbered as footnote 3.
These modifications do not affect the judgment.
The petition for rehearing is denied.
Liu and Cuéllar, JJ., are of the opinion the petition for rehearing should be
granted.
2
Opinion Information
Date:Docket Number:
Thu, 11/02/2017S234269M

Parties
1Latrice Rubenstein (Plaintiff and Appellant)
Represented by Elliott N. Kanter
Law Offices of Elliott N. Kanter, PC
2445 Fifth Avenue, Suite 350
San Diego, CA

2Latrice Rubenstein (Plaintiff and Appellant)
Represented by Justin O. Walker
Law Offices of Elliott N. Kanter
2445 Fifth Avenue, Suite 350
San Diego, CA

3Latrice Rubenstein (Plaintiff and Appellant)
Represented by Holly Noelle Boyer
Esner Chang & Boyer
234 East Colorado Boulevard, Suite 975
Pasadena, CA

4Latrice Rubenstein (Plaintiff and Appellant)
Represented by Shea S. Murphy
Esner, Chang & Boyer
234 East Colorado Boulvard, Suite 975
Pasadena, CA

5Doe No. 1 (Defendant and Respondent)
Represented by Richard J. Schneider
Daley & Heft
462 Stevens Avenue, Suite 201
Solana Beach, CA

6Doe No. 1 (Defendant and Respondent)
Represented by Lee Harris Roistacher
Daley & Heft
462 Stevens Avenue, Suite 201
Solana Beach, CA

7Doe No. 1 (Defendant and Respondent)
Represented by Leila Nourani
Jackson Lewis P.C.
725 South Figueroa Street, Suite 2500
Los Angeles, CA

8Doe No. 1 (Defendant and Respondent)
Represented by Sherry L. Swieca
Jackson Lewis LLP
725 South Figueroa Street, Suite 2500
Los Angeles, CA

9Doe No. 1 (Defendant and Respondent)
Represented by Douglas M. Egbert
Jackson Lewis P.C.
725 South Figueroa Street, Suite 2500
Los Angeles, CA

10Brawley Union High School (Pub/Depublication Requestor)
Represented by Lee Harris Roistacher
Daley & Heft LLP
462 Stevens Avenue, #201
Solana Beach, CA

11Northern California Regional Liability Excess Fund (Amicus curiae)
Represented by Seth L. Gordon
Leone & Alberts
2175 North Carolina Boulevard, Suite 900
Walnut Creek, CA

12Northern California Regional Liability Excess Fund (Amicus curiae)
Represented by Louis A. Leone
Leone & Alberts
2175 North California Boulevard
Suite 900
Walnut Creek, CA

13Southern California Regional Liability Excess Fund (Amicus curiae)
Represented by Seth L. Gordon
Leone & Alberts
2175 North Carolina Boulevard, Suite 900
Walnut Creek, CA

14Southern California Regional Liability Excess Fund (Amicus curiae)
Represented by Louis A. Leone
Leone & Alberts
2175 North California Boulevard
Suite 900
Walnut Creek, CA

15Statewide Association of Community Colleges (Amicus curiae)
Represented by Seth L. Gordon
Leone & Alberts
2175 North Carolina Boulevard, Suite 900
Walnut Creek, CA

16Statewide Association of Community Colleges (Amicus curiae)
Represented by Louis A. Leone
Leone & Alberts
2175 North California Boulevard
Suite 900
Walnut Creek, CA

17School Association for Excess Risk (Amicus curiae)
Represented by Seth L. Gordon
Leone & Alberts
2175 North Carolina Boulevard, Suite 900
Walnut Creek, CA

18School Association for Excess Risk (Amicus curiae)
Represented by Louis A. Leone
Stubbs & Leone
2175 North California Boulevard
Suite 900
Walnut Creek, CA

19California State Association of Counties (Amicus curiae)
Represented by Jennifer Bacon Henning
California State Association of Counties
1100 "K" Street, Suite 101
Sacramento, CA

20League of California Cities (Amicus curiae)
Represented by Jennifer Bacon Henning
California State Association of Counties
1100 "K" Street, Suite 101
Sacramento, CA

21Family Violence & Sexual Assault Institute (Amicus curiae)
c/o Brittany Crowell
10065 Old Grove Road, Suite 101
San Diego, CA 92131

22Institute on Violence, Abuse & Trauma (Amicus curiae)
c/o Brittany Crowell
10065 Old Grove Road, Suite 101
San Diego, CA 92131


Disposition
Aug 28 2017Opinion: Reversed

Dockets
May 4 2016Petition for review filed
Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher CRC 8.25(b).
May 4 2016Record requested
May 4 2016Note:
Court of Appeal record has been imported and is available in electronic format.
May 6 2016Received Court of Appeal record
one doghouse
May 23 2016Request for depublication (petition for review pending)
Pub/Depublication Requestor: Brawley Union High SchoolAttorney: Lee Harris Roistacher
May 24 2016Answer to petition for review filed
Plaintiff and Appellant: Latrice RubensteinAttorney: Elliott N. Kanter
Jun 6 2016Reply to answer to petition filed
Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher (CRC 8.25(b))
Jun 15 2016Petition 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 2016Certification of interested entities or persons filed
By Holly Boyer, counsel for appellant.
Jun 27 2016Certification of interested entities or persons filed
By Lee Harris Roistacher, counsel for respondent.
Jul 8 2016Request 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 2016Extension 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 2016Association 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 2016Opening 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 2016Request for judicial notice filed
Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher
Aug 31 2016Request 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 2016Extension 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 2016Answer 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 2016Reply brief filed (case fully briefed)
Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher (CRC 8.25(b))
Nov 23 2016Oral 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 2016Application 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 2016Notice 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 2016Application 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 2016Application 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 2016Letter 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 2016Permission 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 2016Amicus 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 2016Permission 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 2016Amicus curiae brief filed
Amicus curiae: California State Association of CountiesAttorney: Jennifer Bacon Henning Amicus curiae: League of California CitiesAttorney: Jennifer Bacon Henning
Dec 23 2016Permission 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 2016Amicus curiae brief filed
Amicus curiae: Family Violence & Sexual Assault Institute Amicus curiae: Institute on Violence, Abuse & Trauma
Jan 23 2017Response to amicus curiae brief filed
Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher (CRC 8.25(b))
Jan 25 2017Response 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 2017Case ordered on calendar
To be argued on Tuesday, May 30, 2017, at 9:00 a.m., in San Francisco.
May 17 2017Case 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 2017Application 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 2017Request for judicial notice denied
The request for judicial notice filed on August 16, 2016, is denied.
May 23 2017Request 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 2017Order 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 2017Cause argued and submitted
Aug 25 2017Notice of forthcoming opinion posted
To be filed on Monday, August 28, 2017 at 10:00 a.m.
Aug 28 2017Opinion 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 2017Rehearing petition filed
Plaintiff and Appellant: Latrice RubensteinAttorney: Holly Noelle Boyer crc.8.25(b)
Sep 15 2017Time 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 2017Answer to rehearing petition filed
Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher
Nov 1 2017Rehearing denied; opinion modified
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING THE COURT: The opinion in this matter filed August 28, 2017, and appearing at 3 Cal.5th 903, is modified as follows: 1. On page 910 of the opinion, the first full paragraph beginning, "As noted, the claim must be presented" is modified to read as follows: 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.) A cause of action for childhood sexual molestation generally accrues at the time of the alleged molestation. (Shirk, supra, 42 Cal.4th at p. 210.) Plaintiff could have sued at that time. We must decide whether the changes to section 340.1 caused her action to accrue later or 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 not accrue under section 340.1 until a later time. 2. On page 913 of the opinion, the sentence that reads "Section 340.1 did not cause it to reaccrue." is modified to read as follows: Section 340.1 did not delay accrual or cause the action to reaccrue. 3. On page 915 of the opinion, at the end of the third full paragraph, the following footnote is added as footnote 2: We do not address any question regarding those plaintiffs whose civil actions would be timely under section 340.1, subdivision (a), without reliance on the statute's delayed discovery provisions because they are brought within eight years of majority. Specifically, we do not decide whether such a plaintiff may rely on judicially recognized principles of delayed discovery to postpone accrual for purposes of Government Code section 911.2. 4. On page 916 of the opinion, footnote 2 is renumbered as footnote 3. These modifications do not affect the judgment. The petition for rehearing is denied. Liu and Cuéllar, JJ., are of the opinion the petition for rehearing should be granted.

Briefs
Dec 23 2016Amicus curiae brief filed
Amicus curiae: California State Association of CountiesAttorney: Jennifer Bacon Henning Amicus curiae: League of California CitiesAttorney: Jennifer Bacon Henning
Aug 16 2016Opening brief on the merits filed
Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher
Oct 17 2016Answer brief on the merits filed
Plaintiff and Appellant: Latrice RubensteinAttorney: Holly Noelle Boyer
Jan 25 2017Response to amicus curiae brief filed
Plaintiff and Appellant: Latrice RubensteinAttorney: Shea S. Murphy
Dec 23 2016Amicus curiae brief filed
Amicus curiae: Family Violence & Sexual Assault Institute Amicus curiae: Institute on Violence, Abuse & Trauma
Jan 23 2017Response to amicus curiae brief filed
Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher
Dec 23 2016Amicus 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 2016Reply brief filed (case fully briefed)
Defendant and Respondent: Doe No. 1Attorney: Lee Harris Roistacher
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website