Stanford Law School - Robert Crown Law Library

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

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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

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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

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Opinion Information

Date:	Docket Number:
Thu, 11/02/2017	S234269M

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
Nov 1 2017	Rehearing 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 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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