Supreme Court of California Justia
Docket No. S133687
Shirk v. Vista School Dist.


Filed 8/20/07

IN THE SUPREME COURT OF CALIFORNIA

LINDA SHIRK,
Plaintiff and Appellant,
S133687
v.
Ct.App.
4/1
D043697
VISTA UNIFIED SCHOOL DISTRICT,
San
Diego
County
Defendant and Respondent.
Super. Ct. No. GIC818294

In 2002, the Legislature added a statutory provision that “revived” for the
calendar year 2003 those causes of action for childhood sexual molestation that
would otherwise have been barred “solely” by expiration of the applicable statute
of limitations. (Code Civ. Proc., § 340.1, subd. (c).)1 Does that provision also
apply when a plaintiff suing a public entity has failed to first present a timely
claim to the entity, as required by the government claims statute (Gov. Code,
§ 911.2)? Our answer is “no.”
I
Because this appeal arises from a ruling on a demurrer, we treat the
demurrer as admitting all properly pleaded material facts. (Fox v. Ethicon Endo-
Surgery, Inc. (2005) 35 Cal.4th 797, 810; Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) The facts set out here are those alleged in plaintiff’s complaint.

1
Undesignated statutory references are to the Code of Civil Procedure.

1



Plaintiff Linda Shirk was born on June 22, 1962. In September 1977, when
she was 15 years old, the Vista Unified School District (School District) assigned
her to an English class taught by Jeffrey Paul Jones. Jones began flirting with her
on the first day of school; in May 1978, Jones initiated their first sexual encounter.
In the ensuing months, Jones and plaintiff engaged in sexual conduct both on and
off school premises. Their last sexual contact occurred in November 1979. In the
following months plaintiff neither notified the School District of her abuse nor
presented a claim to it.
In June 2001, when plaintiff’s 15-year-old daughter was attending Vista
High School, plaintiff began to encounter teacher Jones at high school band
tournaments. That same month, having become “very upset” by her long-ago
molestation by Jones, she filed a report with the local sheriff’s office. In February
2002, she met with Jones and surreptitiously recorded a conversation in which he
admitted to sexual conduct with her and with another student.
On September 12, 2003, a licensed mental health practitioner interviewed
plaintiff and concluded that she was still suffering psychological injury from her
sexual abuse by Jones. That same day, plaintiff presented a claim to the School
District for personal injury stemming from her sexual abuse by its employee
Jones. When, as here, the defendant is a public entity, such claim presentation is
required under the government claims statute (Gov. Code, § 900, et seq.),
sometimes referred to as the Tort Claims Act. Government Code section 911.2
requires timely notice to a public entity before commencing legal action against it.
On September 23, 2003, plaintiff, then 41 years old, sued teacher Jones and
the School District. Pertinent here are two causes of action for negligent tortious
conduct against the School District, alleging that it “knew or should have known”
that Jones was “a sexual predator” who “was engaging in inappropriate sexual
misconduct” with his students, including plaintiff. On a form complaint, plaintiff
2

entered the date of the act complained of as “Sept. 12, 2003 (per CCP 340.1(c))”
and she checked two boxes indicating compliance with the government claims
statute.
The School District demurred to plaintiff’s complaint, asserting that the
negligence causes of action were barred by her belated claim presentation. The
trial court agreed; it concluded that plaintiff’s causes of action accrued as of the
last act of sexual molestation, which was in November 1979, but that they were
barred because of plaintiff’s failure to first present a claim to the School District
“at some point in 1980,” as statutorily required. Accordingly, the trial court
sustained the demurrer without leave to amend, and it entered a judgment of
dismissal as to the School District.
Plaintiff appealed, arguing that she had “timely presented her government
tort claim” to the School District on September 12, 2003, when her statutory cause
of action under subdivision (c) of section 340.1 accrued, because it was only then
that “she discovered the cause of her adult psychological injuries.” The Court of
Appeal agreed. It reasoned that the Legislature’s addition in 1998 of provisions
making entities liable for sexual abuse committed by their employees (§ 340.1,
subd. (a)(2) & (3)) coupled with its failure “to make special rules regarding the
application of [government] claims requirements,” indicated legislative intent not
to differentiate between public entity defendants and private entity defendants.
Accordingly, the Court of Appeal held that in 2002, when the Legislature enacted
the revival provision to open a one-year window for childhood sexual abuse
plaintiffs to bring statutorily lapsed causes of action, it also extended the
government claims statute’s deadline for presenting a claim to a public entity
defendant. The Court of Appeal reasoned that, because plaintiff only discovered
on September 12, 2003, that the cause of her psychological injury was the
3

teacher’s sexual abuse of her more than two decades earlier, the claim she
presented to the School District on that same day was timely.
We granted the School District’s petition for review to resolve a conflict
between the decision of the Court of Appeal in this case and a nearly
contemporaneous decision of a different Court of Appeal in County of Los Angeles
v. Superior Court (2005) 127 Cal.App.4th 1263, 1269 (County of Los Angeles).
That case 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. We reach the same conclusion here, thus reversing the Court of Appeal
in this case.
II
Below we summarize the pertinent provisions of section 340.1, which sets
forth deadlines for bringing a lawsuit for childhood sexual abuse, and Government
Code section 911.2, which sets forth a deadline for presenting a claim to a public
entity and is a prerequisite to the filing of a lawsuit against the entity.
A. Section 340.1
At the time of plaintiff’s sexual molestation in 1978-1979, the applicable
statute of limitations for sexual molestation was one year. (Former § 340, subd.
(3).) In 1986, the Legislature enacted section 340.1, which expanded to three
years the statute of limitations for sexual abuse by a relative or household member
of a child under 14 years of age. (Former § 340.1, added by Stats. 1986, ch. 914,
§ 1, pp. 3165-3166.)
In 1990, the Legislature amended section 340.1 to make it applicable to
anyone who sexually abused a child, regardless of that person’s relationship to, or
residence with, the victim. It also extended the statute of limitations to eight years
4

from the date the victim “attains the age of majority,” or three years from the date
the victim “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).) A plaintiff over the age of 26 years had to provide a
certificate of merit from a mental health practitioner. (Former § 340.1, subds. (a),
(b), & (d), as amended by Stats. 1990, ch. 1578, § 1, pp. 7550-7552.)
In 1994, the Legislature again amended section 340.1 by expressly
providing that the 1990 amendments “apply to any action commenced on or after
January 1, 1991, including any action otherwise barred by the period of limitations
in effect prior to January 1, 1991, thereby reviving those causes of action which
had lapsed or technically expired under the law existing prior to January 1, 1991.”
(Former § 340.1, subd. (o), added by Stats. 1994, ch. 288, § 1, p. 1930.)
In 1998, there was another amendment to section 340.1, acknowledging the
vicarious liability of a “person or entity” whose negligent or intentional acts were
a “legal cause” of a child’s sexual abuse. (§ 340.1, subd. (a)(2) & (3), added by
Stats. 1998, ch. 1032, § 1.) Causes of action against such persons or entities had
to be brought before the victim’s 26th birthday. (§ 340.1, subd. (b)(1), amended
by Stats. 1998, ch. 1032, § 1.)
In 1999, the Legislature again amended section 340.1, clarifying that its
1998 changes relating to the liability of nonabuser persons or entities were
prospective—that is, its provisions applied only to actions begun on or after
January 1, 1999, or if filed before that time, actions still pending as of that date,
“including any action or causes of action which would have been barred by the
laws in effect prior to January 1, 1999.” (§ 340.1, subd. (u), added by Stats. 1999,
ch. 120, § 1.)
In 2002, the Legislature yet again amended section 340.1, this time reviving
for the calendar year 2003 those causes of action based on childhood sexual abuse
5

brought against a person or an entity that had “reason to know” or was “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.” (§ 340.1, subd. (b)(2), added by Stats.
2002, ch. 149, § 1.) Thus, this change revived for the year 2003 those causes of
action brought by plaintiffs over the age of 26 years against nonabuser persons or
entities that would otherwise have been time barred as of January 1, 2003, “solely
because the applicable statute of limitations has or had expired” as of that date.
(§ 340.1, subd. (c), italics added.)
B. Government Claims Statute
Before suing a public entity, the plaintiff must present a timely written
claim for damages to the entity. (Gov. Code, § 911.2; State of California v.
Superior Court (2004) 32 Cal.4th 1234, 1239 (Bodde), but see Gov. Code, § 905
[itemized exceptions not relevant here].) In 1979 and 1980, a claim relating to a
cause of action for “injury to person” had to be presented to a government entity
“not later than the 100th day after the accrual of the cause of action.” (Gov. Code,
§ 911.2, added by Stats. 1963, ch. 1715, § 1, p. 3376.) Since 1988, such claims
must be presented to the government entity no later than six months after the cause
of action accrues. (Gov. Code, § 911.2, as amended by Stats. 1987, ch. 1208, § 3,
p. 4306.) 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; Whitfield v.
Roth (1974) 10 Cal.3d 874, 884-885; Jefferson v. County of Kern (2002) 98
Cal.App.4th 606, 615; Dujardin v. Ventura County Gen. Hosp. (1977) 69
Cal.App.3d 350, 355.)
6

Timely claim presentation is not merely a procedural requirement, but is, as
this court long ago concluded, “ ‘ “a condition precedent to plaintiff’s maintaining
an action against defendant” ’ ” (Bodde, supra, 32 Cal.4th at p. 1240, quoting
Williams v. Horvath (1976) 16 Cal.3d 834, 842), and thus an element of the
plaintiff’s cause of action. (Bodde, supra, at p. 1240.) 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. (Bodde, supra, at
p. 1245.)

Only after the public entity’s board has acted upon or is deemed to have
rejected the claim may the injured person bring a lawsuit alleging a cause of action
in tort against the public entity. (Gov. Code §§ 912.4, 945.4; Williams v. Horvath,
supra, 16 Cal.3d at p. 838.) The deadline for filing a lawsuit against a public
entity, as set out in the government claims statute, is a true statute of limitations
defining the time in which, after a claim presented to the government has been
rejected or deemed rejected, the plaintiff must file a complaint alleging a cause of
action based on the facts set out in the denied claim. (Code Civ. Proc., § 342;
Gov. Code, § 945.6; Addison v. State of California (1978) 21 Cal.3d 313, 316;
Tubbs v. Southern Cal. Rapid Transit Dist. (1967) 67 Cal.2d 671, 675; County of
Los Angeles, supra, 127 Cal.App.4th 1263, 1271; Martell v. Antelope Valley Hosp.
Med. Center (1998) 67 Cal.App.4th 978, 981-982; see Cal. Law Revision Com.
com., reprinted at 32A pt. 1 West’s Ann. Gov. Code (1995 ed.) foll. § 945.6, p. 33
(1963 Addition).)
The six-month statute of limitations for filing a lawsuit that is generally
applicable to actions against public defendants (Code Civ. Proc., § 342; Gov.
Code, § 945.6, subd. (a)(1)) is not implicated by the facts here. Rather, it is the
7



claim presentation deadline (Code Civ. Proc., § 313; Gov. Code, § 911.2) that is at
issue, as we explain below.
C. School District’s Demurrer to Plaintiff’s Complaint
As discussed earlier, on September 23, 2003, 41-year-old plaintiff sued the
School District under subdivision (c) of section 340.1, alleging, as relevant here,
two causes of action for negligence based on the district’s employment of teacher
Jones. 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 teacher Jones’s sexual abuse of her in 1978 and 1979, when
she was a teenager. The School District successfully demurred to both causes of
action, arguing that not only were “the 25 year old negligence claims” time-barred,
but also that they were not subject to the revival provision in subdivision (c) of
section 340.1, because of plaintiff’s failure to present a claim to the School
District at the time of her molestation by Jones.
Generally, a cause of action for childhood sexual molestation accrues at the
time of molestation. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d
438, 443; Doe v. Bakersfield City School Dist. (2006) 136 Cal.App.4th 556, 567,
fn. 2; Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023,
1053.) Here, plaintiff’s complaint alleged that her molestation by teacher Jones
began in May 1978 and ended in November 1979. The trial court found that
plaintiff’s cause of action accrued on November 30, 1979 (the last possible act of
molestation), and that under the then-applicable 100-day deadline for presenting a
claim to a public entity (former Gov. Code, § 911.2, added by Stats. 1963, ch.
1715, § 1, p. 3372) she “was required to submit a claim” to the School District “at
some point in 1980.” Plaintiff, however, did not submit a claim to the School
District until September 12, 2003, nearly 25 years after the last act of molestation.
8

III
Plaintiff acknowledges that because of her failure to present a claim to the
School District in 1980, her cause of action against the School District was
extinguished in 1980. But she argues that under section 340.1, subdivision (c),
which revived for the year 2003 those childhood sexual abuse causes of action on
which the statue of limitations had already lapsed as of January 1, 2003, her cause
of action against the School District re-accrued on September 12, 2003, when she
discovered that her present psychological injury was caused by teacher Jones’s
sexual abuse of her some 25 years earlier. Alternatively, she argues 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. We conclude that neither of her contentions is
supported by the language and history of the legislative scheme, as we explain
below.
We
apply
well-established principles of statutory construction in seeking
“to determine the Legislature’s intent in enacting the statute ‘ “so that we may
adopt the construction that best effectuates the purpose of the law.” ’ ” (Kibler v.
Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199; People v.
King (2006) 38 Cal.4th 617, 622; Fitch v. Select Products Co. (2005) 36 Cal.4th
812, 818.) We begin with the statutory language because it is generally the most
reliable indication of legislative intent. (City of Burbank v. State Water Resources
Control Bd. (2005) 35 Cal.4th 613, 625.) If the statutory language is
unambiguous, we presume the Legislature meant what it said, and the plain
meaning of the statute controls. (People v. Hudson (2006) 38 Cal.4th 1002, 1009.)
But if the statutory language may reasonably be given more than one
interpretation, “ ‘ “ ‘courts may consider various extrinsic aids, including the
9

purpose of the statute, the evils to be remedied, the legislative history, public
policy, and the statutory scheme encompassing the statute.’ ” ’ ” (People v. King,
supra, 38 Cal.4th 617, 622; People v. Yartz (2005) 37 Cal.4th 529, 538; People v.
Garcia (2002) 28 Cal.4th 1166, 1172.)
As amended in 2003, the pertinent language of subdivision (c) of section
340.1 reads: “[A] claim for damages” brought against an entity that owed plaintiff
a duty of care and whose wrongful or negligent act was a legal cause of injury to
plaintiff resulting from childhood sexual abuse, if the cause of action “would
otherwise be barred as of January 1, 2003, solely because the applicable statute of
limitations has or had expired is revived” (italics added), and the revived “cause of
action may be commenced within one year of January 1, 2003.”
In plain language, that provision expressly limited revival of childhood
sexual abuse causes of action to those barred “solely” by expiration of the
applicable statute of limitations. (§ 340.1, subd. (c).) The term “ ‘[s]tatute 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.” (Fox v. Ethicon
Endo-Surgery Inc., supra, 35 Cal.4th at p. 806; Norgart v. Upjohn Co. (1999) 21
Cal.4th 383, 395.) As the Code of Civil Procedure explains, “[c]ivil actions,
without exception, can only be commenced within the periods prescribed . . . ,
after the cause of action shall have accrued.” (§ 312.)
Section 340.1, subdivision (c), makes no reference whatsoever to any
revival of the period in which to present a claim under the government claims
statute. That lack of reference led the Court of Appeal here to infer that because
the Legislature must have been aware that by expressly reviving causes of action
against entity defendants in general under subdivision (c), it implicitly revived the
deadline for presenting a claim to public entity defendants. We are not persuaded.
10

The legislative history of the 2002 amendment at issue here is virtually
silent as to its impact on a public entity defendant; it mentions only the general
principle that “a school district, church, or other organization engaging in the care
and custody of a child owes a duty of care to that child to reasonably ensure its
safety.” (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1779 (2001-2002 Reg.
Sess.) as amended June 6, 2002, p. 6.) No opposition at all to the bill was noted in
the committee report. (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of
Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as amended June 17, 2002, pp. 4-5;
Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as
amended May 2, 2002, p. 10.) And the bill’s legislative history makes no mention
of an intent to revive the deadline by which to present a claim to a public entity,
nor have we found any mention of the potential fiscal impact of reviving public
liability for incidents that occurred, as here, decades ago. Thus, the legislative
history does not support the view of the Court of Appeal in this case that the
Legislature’s revival of childhood sexual abuse causes of action otherwise barred
solely by the lapse of the applicable statute of limitations also was intended to
apply to the then-already-codified government claim presentation deadline. The
Legislature is deemed to be aware of existing statutes, and we assume that it
amends a statute in light of those preexisting statutes. (People v. Yartz, supra, 37
Cal.4th at p. 538; People v. Overstreet (1986) 42 Cal.3d 891, 897.)
Plaintiff argues that the Legislature was well aware of the claim
presentation deadline under the government claims statute, as indicated by section
340.1, subdivision (c)’s opening phrase, “Notwithstanding any other provision of
law . . . .” But that interpretation is inconsistent with the more specific language
later in that same sentence expressly reviving only those causes of action “barred
. . . solely because the applicable statute of limitations has or had expired” as of
January 1, 2003. (Ibid., italics added.) As discussed earlier, before a plaintiff can
11

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, ante, at page 7, 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.
This conclusion also finds support 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. (Johnson v. San Diego Unified School Dist. (1990) 217
Cal.App.3d 692, 696-697; Roberts v. State of California (1974) 39 Cal.App.3d
844, 848; see also Recommendation: Claims Against Public Entities (Dec. 1963)
4 Cal. Law Revision Com. Rep. (1963) pp. 1008-1009.) 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. (Wells v. One2One Learning Foundation (2006) 39
Cal.4th 1164, 1214; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455;
Barkley v. City of Blue Lake (1996) 47 Cal.App.4th 309, 316.) Fresh notice of a
claim permits early assessment by the public entity, 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. (Phillips v. Desert Hospital
12

Dist. (1989) 49 Cal.3d 699, 705; City of San Jose, supra, 12 Cal.3d, at p. 455;
Baines Pickwick, Ltd. v. City of Los Angeles (1999) 72 Cal.App.4th 298, 303; see
Crescent Wharf etc. Co. v. Los Angeles (1929) 207 Cal. 430, 437.) 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. For the reasons discussed above, we
conclude that plaintiff’s causes of action against the School District for injury
resulting from her childhood sexual abuse by teacher Jones were not revived in
2003 by section 340.1, subdivision (c).
Plaintiff’s second contention is that her 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 teacher Jones’s molestation of her as a teenager, some 25
years earlier. That very same day, she presented her claim to the School District,
which denied it as untimely. Thus, plaintiff argues, she has timely filed against
the School District her complaint alleging her injury was caused by the School
District’s breach of its duty of care to protect her from sexual abuse by teacher
Jones.
We disagree. We concluded earlier 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
13

persons who discovered only in 2003 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.
DISPOSITION
The judgment of the Court of Appeal is reversed.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

14





DISSENTING OPINION BY WERDEGAR, J.

The majority concludes plaintiff failed to present a timely claim to
defendant school district and that her suit is accordingly barred, notwithstanding
the 2003 revival statute (Code Civ. Proc., § 340.1, subd. (c)). I disagree and
would affirm the Court of Appeal’s unanimous decision to the contrary.
Plaintiff’s obligation under the claim presentation statute (Gov. Code,
§ 911.2, subd. (a)) was to present her claim “not later than six months after the
accrual of the cause of action” (ibid.). Her claim first accrued sometime in 1979,
when defendant’s employee last molested her. She did not present a claim then.
But her claim accrued again in 2003 under the newly-enacted revival statute (Code
Civ. Proc., § 340.1, subd. (c)), read together with the earlier-enacted delayed
discovery statute (id., subd. (a)), when she “discover[ed] or reasonably should
have discovered that psychological injury or illness occurring after the age of
majority was caused by the sexual abuse” (ibid.). The applicable statute of
limitations, which in this case is the delayed discovery statute, 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. This conclusion merely respects the plain language of all the
relevant statutes.
The majority does not argue a claim cannot accrue twice. Indeed, the
revival statute (Code Civ. Proc., § 340.1, subd. (c)), read together with the delayed
1



discovery statute (id., subd. (a)), necessarily causes previously accrued claims for
sexual molestation to accrue a second time by prescribing the time for
commencing an action in terms of delayed discovery. Although, “ ‘[g]enerally
speaking, a cause of action accrues at “the time when the cause of action is
complete with all of its elements[,]” [a]n important exception to the general rule of
accrual is the “discovery rule,” which postpones accrual of a cause of action until
the plaintiff discovers, or has reason to discover, the cause of action.’ ” (Grisham
v. Phillip 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.) Thus, plaintiff’s claim
accrued once in 1979, when all the elements of her cause of action first existed,
and once again in 2003, when her delayed discovery of psychological injury as an
adult brought her claim within the revival statute.
To argue a claim cannot accrue twice would, in effect, nullify the revival
statute. Eschewing this absurdity, the majority instead reasons the Legislature’s
silence, when it drafted the revival statute, on the subject of claim presentation
must mean the Legislature did not intend the revival statute (Code Civ. Proc.,
§ 340.1, subd. (c)) to affect “the accrual of the cause of action” (Gov. Code,
§ 911.2, subd. (a)) for purposes of the claim presentation statute (ibid.). (See maj.
opn., ante, at pp. 11-12.) But the argument fails because, as already noted, the
Legislature had already expressly provided that a claim accrues for purposes of
claim presentation at the same time it accrues under the applicable statute of
limitations (Gov. Code, § 901), which in this case is the delayed discovery statute
(Code Civ. Proc., § 340.1, subd. (a)). Because the Legislature had already
redefined accrual in terms of delayed discovery, the Legislature’s later silence on
the point proves nothing. In any event, we ordinarily will not invoke legislative
history to justify interpreting a statute contrary to its plain language. (E.g., City &
County of San Francisco v. County of San Mateo (1995) 10 Cal.4th 554, 572,
fn. 10.) Although exceptions to that rule are occasionally admitted in extreme
cases, to argue that legislative silence can justify ignoring a statute’s plain
2

meaning stands the ordinary rule on its head. At the very least, the burden of
proving the Legislature did not mean what it said would seem to be on the one
making the argument. The Legislature’s silence does not help the majority carry
that burden.
The majority also argues, apparently in the alternative, that the revival
statute does not apply to this case. The majority reasons that plaintiff’s claim was
barred not “solely because the applicable statute of limitations has or had expired”
(Code Civ. Proc., § 340.1, subd. (c), italics added), but also because she has not
complied with the claim presentation statute. (Maj. opn., ante, at p. 10.) But this
additional argument obviously begs the question whether plaintiff has complied
with the claim-presentation statute. For the reasons given above, I conclude she
has.
WERDEGAR, J.
3

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Shirk v. Vista Unified School District
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 128 Cal.App.4th 156
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S133687
Date Filed: August 20, 2007
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: S. Charles Wickersham

__________________________________________________________________________________

Attorneys for Appellant:

Ronquillo & Corrales and Manuel Corrales, Jr., for Plaintiff and Appellant.

Zalkin & Zimmer, Irwin M. Zalkin, Devin M. Storey; Kiesel, Boucher & Larson and Raymond P. Boucher
as Amici Curiae on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Stutz, Artiano, Shinoff & Holtz, Daniel R. Shinoff, Jack M. Sleeth, Jr., William C. Pate, Jeffrey A. Morris
and Paul V. Carelli IV for Defendant and Respondent.

Hennigan, Bennett & Dorman, J. Michael Hennigan and Lee W. Potts for Roman Catholic Archbishop of
Los Angeles as Amicus Curiae on behalf of Defendant and Respondent.

Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici
Curiae on behalf of Defendant and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Manuel Corrales, Jr.
Ronquillo & Corrales
3033 Fifth Avenue, Suite 425
San Diego, CA 92103
9619) 294-7474

Jack M. Sleeth, Jr.
Stutz, Artiano, Shinoff & Holtz
401 West “A” Street, 15th Floor
San Diego, CA 92101
(619) 232-3122


Opinion Information
Date:Docket Number:
Mon, 08/20/2007S133687

Parties
1Vista Unified School District (Defendant and Respondent)
Represented by Daniel R. Shinoff
Stutz Artiano Shinoff & Holtz
2400 Historic Decatur Road, Suite 200
San Diego, CA

2Vista Unified School District (Defendant and Respondent)
Represented by Jack M. Jr. Sleeth
Stutz Artiano Shinoff & Holtz
401 West "A" Street, 15th Floor
San Diego, CA

3Shirk, Linda (Plaintiff and Appellant)
Represented by Manuel Jr. Corrales
Attorney at Law
11753 Avenida Sivrita
San Diego, CA

4Jones, Jeffrey Paul (Defendant and Respondent)
Represented by Jon Y. Vanderpool
Tosdal Smith Steiner & Wax
600 "B" Street, Suite 2100
San Diego, CA

5California State Association Of Counties (Amicus curiae)
Represented by Jennifer Bacon Henning
Litigation Counsel
1100 "K" Street, Suite 101
Sacramento, CA

6League Of California Cities (Amicus curiae)
Represented by Jennifer Bacon Henning
Litigation Counsel
1100 "K" Street, Suite 101
Sacramento, CA

7Zalkin, Irwin M. (Amicus curiae)
Represented by Irwin Myron Zalkin
Zalkin & Zimmer
12555 High Bluff Drive, Suite 260
San Diego, CA

8Boucher, Raymond P. (Amicus curiae)
Represented by Raymond Paul Boucher
Kiesel Boucher & Larson, LLP
8648 Wilshire Boulevard
Beverly Hills, CA

9Roman Catholic Archbishop Of Los Angeles (Amicus curiae)
Represented by Lee W. Potts
Hennigan, Bennett & Dorman, LLP
865 S. Figueroa Street, Suite 2900
Los Angeles, CA


Disposition
Aug 20 2007Opinion: Reversed

Dockets
May 6 2005Petition for review filed
  by counsel for respondent (Vista Unified School District). (recv'd in San Diego)
May 6 2005Received Court of Appeal record
 
Jun 22 2005Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Brown, JJ.
Jul 5 2005Certification of interested entities or persons filed
  Atty Carelli for respondent, Vista Unified School District
Jul 8 2005Request for extension of time filed
  By counsel for petitioner, Vista Unified School District. Requesting to August 22, 2005, to file opening brief on the merits. (to court for permission)
Jul 8 2005Certification of interested entities or persons filed
  By counsel for appellant
Jul 15 2005Extension 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 22, 2005.
Aug 22 2005Opening brief on the merits filed
  By counsel for respondent, Vista Unified School District
Sep 7 2005Request for extension of time filed
  to file answer brief/merits appellant {SHIRK} asking 45 days -
Sep 13 2005Extension 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 November 7, 2005.
Nov 3 2005Request for extension of time filed
  to file answer brief/merits to 12-07-05 appellant [SHIRK]
Nov 4 2005Extension 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 December 7, 2005.
Dec 12 2005Received:
  untimely answer brief on the merits obo appellant Linda Shirk. application for relief from default forthcoming.
Dec 14 2005Application for relief from default filed
  Linda Shirk, Defendant and Appellant Manuel Corrales, Jr., Retained
Dec 15 2005Answer brief on the merits filed
  w/permission. Linda Shirk, Plainitiff and Appellant Manuel Corrales, Jr., retained
Dec 23 2005Request for extension of time filed
  By counsel for respondent, Vista Unified School District. Respondent requesting to 2/3/06 to file reply brief on the merits (to court for permission)
Dec 30 2005Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including February 3, 2006.
Feb 3 2006Reply brief filed (case fully briefed)
  Vista Unified School District, Defendant and Respondent Paul V. Carelli, retained
Mar 1 2006Received application to file Amicus Curiae Brief
  Atty Jennifer Henning for amici California State Association of Counties and League of California Cities in support of respondent Vista Unified School District (to court for permission)
Mar 3 2006Received application to file Amicus Curiae Brief
  Irwin M. Zalkin and Raymond P. Boucher's in support of appellant, Linda Shirk (to court for permission to file)
Mar 3 2006Received:
  declaration of Devin M. Storey in support of Irwin M. Zalkin and Raymond P. Boucher's Petition to Appear as Amicus Curiae and Amicus Brief in support of appellant Linda Shirk.
Mar 8 2006Permission 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, Vista Unified School District, is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 8 2006Amicus curiae brief filed
  California State Association of Counties and League of California Cities in support of respondent, Vista Unified School Distrct. Jennifer B. Henning, retained
Mar 10 2006Permission to file amicus curiae brief granted
  The application of Irwin M. Zalkin and Raymond P. Boucher for permission to file an amicus curiae brief in support of appellant, Linda Shirk, is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 10 2006Amicus curiae brief filed
  Irwin M. Zalkin and Raymond P. Boucher in support of appellant, Linda Shirk.
Mar 10 2006Request for judicial notice filed (granted case)
  Atty Irwin M. Zalkin and Atty Raymond P. Boucher
Mar 22 2006Request for extension of time filed
  by Atty Carelli obo Vista Unified School District requesting to May 4 (35-days) to file a response to amici curiae brief of Irwin M. Zalkin and Raymond P. Boucher. (to court for permission)
Mar 24 2006Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file an answer to the amicus curiae brief of Irwin M. Zalkin and Raymond P. Boucher is extended to and including May 4, 2006.
Mar 28 2006Request for extension of time filed
  by Atty Corrales obo appellant Linda Shirk requesting an extension of time to May 3 (36-days) to file an answer brief to amici curiae filed by California State Association of Counties and League of California Cities (to court for permission)
Apr 5 2006Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer to the amicus curiae brief of California State Association of Counties and League of California Cities is extended to and including May 3, 2006.
Apr 24 2006Note: Mail returned (unable to forward)
  copy of order filed 4/5/06 to Atty Mark Bush. (no forwarding address)
Apr 28 2006Response to amicus curiae brief filed
  Linda Shirk, Plaintiff and Appellant Manuel Corrales, Jr., counsel
May 4 2006Response to amicus curiae brief filed
  Vista Unified School District, Defendant and Respondent. Paul Carelli, counsel.
May 24 2006Received application to file Amicus Curiae Brief
  for permission to file a reply to Petitioner's answer by amicius curiae Irwin M. Zalkin and Raymond P. Boucher (to court for permission to file)
Jun 2 2006Permission to file amicus curiae brief granted
  The application of amicus curiae Irwin M. Zalkin and Raymond P. Boucher for permission to file a reply brief in support of appellant, Linda Shirk, is hereby granted. A response thereto may be served and filed by any party within thirty days of the filing of the brief.
Jun 2 2006Amicus curiae brief filed
  Irwin M. Zalkin and Raymond P. Boucher reply brief in support of appellant, Linda Shirk.
Jul 3 2006Filed:
  Respondent's, Vista Unified School District, Sur-reply brief to amicus reply brief on Irwin M. Zalkin and Raymond P. Boucher.
Jul 3 2006Change of contact information filed for:
  Counsel for Respondent Vista Unified School District Attorneys Daniel R. Shinoff and Jack M. Sleeth, Jr., etal
Sep 11 2006Filed letter from:
  Atty Ronquillo & Corrales counsel for Linda Shirk, Plaiintiff and Appellant, requesting oral argument.
Oct 31 2006Received application to file Amicus Curiae Brief
  Received application to file late amicus curiae brief Received amicus curiae brief Received Request for Judicial Notice Received Vol 1, Vol 2, Vol 3 [Legislative History] Roman Catholic Archbishop of Los Angeles
Nov 8 2006Filed:
  Letter from Defense Liaison Counsel, attorney for the amici Roman Catholic Archbishop of Los Angeles, requesting permission to file a reply to opposition by Plaintiffs
Nov 9 2006Filed:
  Opposition from Atty Manual Corrales counsel for Linda Shirk, appellant, to the Roman Catholic Archbishop of Los Angeles's petition for relief from Rule 29(f)(2).
Nov 15 2006Permission to file amicus curiae brief granted
  The application of Roman Catholic Archbishop of Los Angeles for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Nov 15 2006Amicus curiae brief filed
  Roman Catholic Archbishop of Los Angeles in support of respondent. Lee W. Potts, counsel
Nov 15 2006Request for judicial notice filed (granted case)
  By Roman Catholic Archbishop of Los Angeles, amicus curiae Lee W. Potts, counsel
Nov 27 2006Application filed to:
  request permission to file an answer brief in response to the amicus brief of the Roman Catholic Archbishop of Los Angeles and Request for extension of time by amicus curiae Irwin Zalkin and Raymond Boucher. (to court for permission to file)
Nov 29 2006Request for extension of time filed
  Appellant Linda Shirk requesting add'l 30-days to file answer to Roman Catholic Archbishop of Los Angeles amicus brief. (to court for permision)
Dec 1 2006Extension of time denied
  Appellant's request for an extension of time within which to file an answer brief in response to the amicus curiae brief of Roman Catholic Archbishop of Los Angeles is denied.
Dec 1 2006Extension of time granted
  The application of amicus curiae Irwin M. Zalkin and Raymond P. Boucher for permission to file an answer brief in response to the amicus brief of the Roman Catholic Archbishop of Los Angeles is granted; and, good cause appearing, it is ordered that the time to serve and file the answer brief is extended to and including December 29, 2006. No further extensions will be contemplated.
Dec 6 2006Response to amicus curiae brief filed
  Linda Shirk, Plaintiff and Appellant. Manuel Corrales, Jr., counsel response to amicus curiae brief of Roman Catholic Archbishop of Los Angeles
Dec 29 2006Response to amicus curiae brief filed
  AC Irwin M. Zalkin and Raymond P. Boucher, in response to AC brief filed by The Roman Catholic Archbishop of Los Angeles. By Devin M. Storey, counsel
Dec 29 2006Request for judicial notice filed (granted case)
  AC Irwin M. Zalkin and Raymond P. Boucher in support of their response to AC brief filed by The Roman Catholic Archbishop of Los Angeles.
Jan 25 2007Filed:
  Request by Roman Catholic Archbishop of Los Angeles for leave to file a reply to appellant's answer to amicus curiae brief and to amicus curiae Zalkin answer to amicus brief. (to court for permission)
Feb 1 2007Order filed
  The application of Roman Catholic Archbishop of Los Angeles for permission to file a reply to appellant's answer to amicus curiae brief and to amicus curiae Irwin M. Zalkin and Raymond P. Boucher answer to amicus curiae brief is hereby granted.
Feb 1 2007Filed:
  Reply to appellant's answer to amicus brief of Zalkin and Boucher filed by amicus curiae Roman Catholic Archbishop of Los Angeles Lee W. Potts, counsel
Feb 5 2007Filed:
  Atty Lee Potts Motion to strike portions of appellant's answer to amicus brief of Roman Catholic Archbishop of Los Angeles (to court for permission)
Feb 20 2007Order filed
  The motion of amicus curiae Roman Catholic Archbishop of Los Angeles to strike portions of appellant's answer to amicus curiae brief of Roman Catholic Archbishop of Los Angeles is hereby denied.
May 2 2007Case ordered on calendar
  to be argued on Thursday, May 31, at 9:00 a.m., in San Francisco
May 11 2007Received:
  letter from counsel for AC Irwin M. Zalkin et al., dated May 10, 2007, requesting permission to allow one representaitve to appear at Oral Argument.
May 15 2007Letter sent to:
  Mr. Raymond P. Boucher and counsel for appellant and respondent, regarding Mr. Boucher's letter requesting permission to appear before the court for oral argument.
May 17 2007Request for judicial notice granted
  The request for judicial notice filed in this court on October 31, 2006, by amicus curiae Roman Catholic Archbiship of Los Angeles is granted as to the documents described below. Judicial notice is denied as to all other documents. Tietge v. Western Province of the Servites, Inc. (1997) 55 Cal.App.4th 382. Senate Committee on the Judiciary, Third Reading Analysis of Senate Bill No. 108 (1989-1990 Reg. Sess) as amended August 15, 1990. Statutes 1998, chapter 1032. Statutes 1999, chapter 120. Bill History of Senate Bill 1779 (2001-2002 Reg. Sess.). Senate Rules Committee, Office of Senate Floor Analyses, Report on Senate Bill No.1779 (2001-2002 Reg. Sess.) as amended June 17, 2002. Senate Committee on the Judiciary, Third Reading Analysis of Senate Bill No. 1779 (2001-2002 Reg. Sess.) as amended June 17, 2002. Assembly Committee on the Judiciary, Report on Senate Bill No. 1779 (2001-2002 Reg. Sess.) as amended June 6, 2002. Senate Rules Committee, Office of Senate Floor Analyses, Report on Senate Bill No. 1779 (2001-2002 Reg. Sess.) as amended May 15, 2002. `Senate Judiciary Committee, Report on Senate Bill No. 1779 (2001-2002 Reg. Sess.) as amended May 2, 2002. Assembly Republican Bill Analysis, Report on Senate Bill No. 1779 (2001-2002 Reg. Sess.) as amended June 6, 2002.
May 17 2007Request for judicial notice granted
  The request for judicial notice filed in this court on March 10, 2006, by amici curiae Irwin M. Zalkin and Raymond P. Boucher is granted as to all documents in exhibits 1 through 10. The request is denied as to exhibit 11. The request for judicial notice filed in this court on December 26, 2006, by amici curiae Irwin M. Zalkin and Raymond P. Boucher is granted.
May 21 2007Supplemental brief filed
  Vista Unified School District, Defendant and Respondent Jack M. Sleeth, Jr., counsel
May 29 2007Received:
  Application by Amicus Curiae Irwin Zalkin and Raymond P. Boucher for leave to file a supplemental amicus curiae brief on the merits (to court for permission)
May 30 2007Order filed
  The application of amicus curiae Raymond P. Boucher and Irwin M. Zalkin for permission to file a supplemental brief is hereby granted. No party is required to respond to the supplemental brief submitted by amicus curiae, but should any party wish to respond to the supplemental brief it may do so by way of letter briefing received by the San Francisco office of this court no later than Wednesday, June 6, 2007.
May 30 2007Supplemental brief filed
  By: Irwin M. Zalkin and Raymond P. Boucher, Amicus Curiae
May 31 2007Cause argued and submitted
 
Jun 5 2007Filed:
  Appellant, Linda Shirk's letter brief in response to supplemental brief submitted by amicus curiae. by counsel, Manuel Corales, Jr. via fax.
Jun 6 2007Filed:
  Response to supplemental brief submitted by amicus curiae. Roman Catholic Archbishop of Los Angeles, Amicus Curiae by Lee Potts, counsel
Jun 7 2007Filed:
  Response filed by Manuel Corrales, Jr., counsel for appellant Linda Shirk to amicus curiae Boucher & Irwin's supplemental brief. (CRC, rule 8.25 - priority mail)
Jun 19 2007Filed:
  Substitution of Attorneys substituting Manuel Corrales in place of law firm of Ronquillo & Corrales counsel for Linda Shirk, Plaintiff and Appellant.
Aug 17 2007Notice of forthcoming opinion posted
 
Aug 20 2007Opinion filed: Judgment reversed
  Majority Opinion by Kennard, J. ----- Joined by George, C. J., Baxter, Chin, Moreno and Corrigan, JJ. Dissenting Opinion by Werdegar, J.
Aug 28 2007Rehearing petition filed
  Linda Shirk, Plaintiff and Appellant. Manuel Corrales, Jr., counsel
Aug 29 2007Received:
  letter from Christina J. Imre counsel for respondent Boy Scouts of America in Doe v. City of Los Angeles, No. S142546. Counsel is writing to call the court's attention to what they believe are two typographical or other errors in the August 20th opinion in this case.
Aug 30 2007Time 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 16, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 6 2007Note: Mail returned and re-sent
  copy of order sent to attorney Daniel Shinoff of Stutz Artiano et al. (forwarding time has expired.)
Oct 10 2007Opinion modified - no change in judgment
 
Oct 10 2007Rehearing denied
  Werdegar, J., is of the opinion the petition should be granted.
Oct 10 2007Remittitur issued (civil case)
 
Oct 17 2007Received:
  Receipt for Remittitur

Briefs
Aug 22 2005Opening brief on the merits filed
 
Dec 15 2005Answer brief on the merits filed
 
Feb 3 2006Reply brief filed (case fully briefed)
 
Mar 8 2006Amicus curiae brief filed
 
Mar 10 2006Amicus curiae brief filed
 
Apr 28 2006Response to amicus curiae brief filed
 
May 4 2006Response to amicus curiae brief filed
 
Jun 2 2006Amicus curiae brief filed
 
Nov 15 2006Amicus curiae brief filed
 
Dec 6 2006Response to amicus curiae brief filed
 
Dec 29 2006Response to amicus curiae brief filed
 
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