Case Name: Mike Mahaney v. Doe 1, et al.
Case No.: 2018-CV-326874

Demurrer to the First Amended Complaint by Defendants Doe 1 and Doe 2

Factual and Procedural Background

This is an action for childhood sexual abuse. Plaintiff Mike Mahaney (“Plaintiff”) is an adult male over the age of 26 years old. (First Amended Complaint [“FAC”] at ¶¶ 1-2.) Defendants Doe 1 and Doe 2 (collectively, “Defendants”) are entities and educational institutions located in Santa Clara County. (Id. at ¶ 3.)

Between the years 1955-1957, Plaintiff, then a minor, was left in the care of all defendants who agreed to educate, school and instruct him. (Id. at ¶ 8.) Does 3-5 were teachers, ministers, and supervisors of students at Doe 2 including Plaintiff. (Id. at ¶ 27.) Plaintiff alleges he was intentionally, negligently mistreated, assaulted, battered and molested by Does 3-5. (Id. at ¶ 8.) Some of the acts complained of include kissing all over his body, touching his private parts and oral copulation by Does 3-5. (Id. at ¶ 9.) These acts were done at a minimum once a week during a four to six month period during the year 1955. (Ibid.)

The alleged incident and misconduct were done on the premises of Doe 2. (FAC at ¶ 13.) Defendants knew or should have known and were likely aware of the sexual misconduct committed by Does 3, 4, and 5. (Id. at ¶¶ 13, 15.) It was not until very late in life that Plaintiff discovered he had been the victim of molestation as a minor while a student at Doe 2. (Id. at ¶ 16.) In February 2016, Plaintiff brought this issue to the attention of his former school which, using his vulnerable condition, failed to advise him of his rights (including any statute of limitations). (Id. at ¶ 18.) The school instead presented Plaintiff with an agreement to limit his rights against the school and induced him into accepting free therapy while concealing his statutory rights and intending this arrangement to be a settlement of his claims. (Ibid.) Under these false pretenses, Plaintiff began therapy regarding the instances of child abuse with a licensed healthcare provider in March 2016.

On May 14, 2018, Plaintiff filed the operative FAC alleging causes of action for: (1) childhood sexual abuse/battery Code of Civil Procedure § 340.1; (2) fraud; (3) declaratory relief; (4) conspiracy to commit fraud and violate California Penal Laws; (5) negligent supervision; (6) negligence; (7) battery; (8) assault; (9) intentional infliction of emotional distress; and (10) gender violence (Civ. Code 52.4).

Demurrer to the FAC

Currently before the Court is Defendants’ demurrer to the FAC on the ground it is barred by the statute of limitations. (Code Civ. Proc., § 430.10, subd. (e).) Defendants filed a request for judicial notice in conjunction with the demurrer. Plaintiff filed written opposition. Defendants filed reply papers.

Request for Judicial Notice

In support of the motion, Defendants request judicial notice of the fact that Plaintiff filed this action on April 20, 2018 as reflected on the Court’s docket in this matter. (See Request for Judicial Notice at Exhibit A.) The Court’s docket constitutes a record of the superior court subject to judicial notice under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].) Furthermore, the request appears relevant to the statute of limitations argument raised on demurrer. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is confined to those matters which are relevant to the issue at hand].)

Accordingly, the request for judicial notice is GRANTED.

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

Demurrer to the FAC – Statute of Limitations

The sole basis for demurrer is that each cause of action in the FAC is barred by the applicable statute of limitations.
“[A] statute of limitations gives someone who has suffered a civil wrong a certain period of time to sue for damages.” (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 960 (Doe).) “[T]he statute of limitations exists to promote the diligent assertion of claims, ensure defendants the opportunity to collect evidence while still fresh, and provide repose and protection from dilatory suits once excess time has passed.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 (Aryeh).)

“The limitations period, the period in which a plaintiff must bring suit or be barred, runs from the moment a claim accrues.” (Aryeh, supra, 55 Cal.4th at p. 1191.) Traditionally, a cause of action “accrues” when it is complete with all of its elements. (Doe, supra, 247 Cal.App.4th at p. 961.) However, “a cause of action will at times be deemed to accrue at a later date, such as when the plaintiff did not discover and had no occasion to discover the cause of action until that later date, when the defendant fraudulently concealed the existence of a possible claim until that later date, or when the defendant committed multiple wrongs that ended on that later date.” (Ibid.)

“If the time between the date of accrual and the date the plaintiff files suit is greater than the time period prescribed by our Legislature, the plaintiff’s claim is barred unless he can show that (1) the running of the time period was ‘tolled’ (that is, the time period’s ‘clock’ was ‘stopped’) and the total amount of untolled time is less than the legislatively-prescribed time period (citation), or (2) our Legislature later ‘revived’ the barred claim by expressly declaring that persons with expired claims can once again sue (citation).” (Doe, supra, 247 Cal.App.4th at p. 961.)

A court may sustain a demurrer on the ground of failure to state sufficient facts if “the complaint shows on its face the statute [of limitations] bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) A demurrer is not sustainable if there is only a possibility the cause of action is time-barred; the statute of limitations defense must be clearly and affirmatively apparent from the allegations in the pleading. (Id. at pp. 1315-16.) When evaluating whether a claim is time-barred, a court must determine (1) which statute of limitations applies and (2) when the claim accrued. (Id. at p. 1316.)

“Code of Civil Procedure section 340.1 sets forth the limitations for filing an action for childhood sexual abuse.” (Rubenstein v. Doe 1 (2017) 3 Cal.5th 903, 910 (Rubenstein).) “A cause of action for childhood sexual molestation generally accrues at the time of the alleged molestation.” (Ibid.) According to the FAC, defendants sexually molested and assaulted Plaintiff during the years of 1955-1957. (See FAC at ¶¶ 8, 28.) Plaintiff could have brought suit then but deferred this action until later in life when he discovered he had been the victim of molestation as a minor. (Id. at ¶ 16.) Plaintiff thereafter filed the lawsuit on April 20, 2018. (See Request for Judicial Notice at Exhibit A.) The Court thus examines whether this action is timely filed within the limitations period provided in section 340.1.

During 1955-1957, when the alleged abuse occurred, the applicable limitations period for claims alleging sexual abuse of a child was one year from the time the cause of action accrued (see former section 340, subd. (3)) and ordinarily the cause of action accrued at the time of the alleged abuse. (See Quarry v. Doe 1 (2012) 53 Cal.4th 945, 960-961 (Quarry).) For persons who were minors when the alleged abuse occurred, the limitations period was tolled until one year after the time the plaintiff reached the age of majority, that is, until the age of 19. (Id. at p. 961.) Here, Plaintiff alleges he was over the age of 26 at the time he filed this lawsuit in 2018. (See FAC at ¶ 1.) As Plaintiff did not file his lawsuit at the age of 19, his claims are untimely absent tolling or revival by the Legislature.

“In 1998 and 1999, the Legislature extended the limitations period for suing third parties for childhood sexual abuse, but only if the lawsuit was filed before the victim’s 26th birthday, and revived any claims that were timely under this new rule, even if they had previously expired.” (Doe, supra, 247 Cal.App.4th at p. 970; Quarry, supra, 53 Cal.4th at p. 965.) Plaintiff however cannot avail himself of this revival period because, in 1998, he was over the age of 26.

Finally, “[i]n 2002, the Legislature carved out an exception to the rule that a plaintiff suing for sexual abuse always had to sue a third party before the victim’s 26th birthday. This exception authorized suit ‘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 cause by the sexual abuse,’ even after the plaintiff’s 26th birthday, if the third party ‘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.’ [Citations.] The Legislature expressly stated that plaintiffs whose claims would be timely under this amendment could bring suit ‘within one year of January 1, 2003,’ even if their claims had expired.” (Doe, supra, 247 Cal.App.4th at p. 970; § 340.1, subd. (c).) This language thus “revived any lapsed claims, giving them the benefit of the new enactment, but the claims were revived for only one year.” (Quarry, supra, 53 Cal.4th at p. 970.) Although Plaintiff’s claim may have been revived by this 2002 amendment, he did not file suit until 2018, beyond the statutory window for claims revived by this amendment to be filed.

Delayed Discovery

Both the FAC and the opposition appear to rely in part on the delayed discovery doctrine to demonstrate the claims are timely.

“[I]n order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury. If such an investigation would have disclosed a factual basis for a cause of action, the statute of limitations begins to run on that cause of action when the investigation would have brought such information to light. In order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808-809 (Fox).)

“In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’ [Citation.]” (Fox, supra, 35 Cal.4th at p. 808.)

According to the FAC, it was not until later in life that Plaintiff discovered he had been the victim of molestation as a minor while a student at Doe 2. (FAC at ¶ 16.) Plaintiff thereafter brought suit within three years following discovery of the abuse. (Id. at ¶ 17.) The Court however does not need to evaluate the sufficiency of the delayed discovery allegations in the FAC. This is because “the Legislature intended section 340.1, not common law delayed discovery principles, to govern the application of the statute of limitations to all late-discovered claims based upon childhood sexual abuse.” (Quarry, supra, 53 Cal.4th at p. 984.) It is therefore immaterial that Plaintiff made discovery of the alleged abuse within three years of filing this lawsuit.

Insurance Code Section 11583

In addition, Plaintiff argues his claims are subject to tolling under Insurance Code section 11583.

“[Insurance Code] Section 11583 provides that any ‘advance payment or partial payment of damages made by any person’ (1) may not ‘be construed as an admission of liability,’ and (2) shall be credited against any final settlement or judgment. However, if the person making that ‘advance payment or partial payment of damages’ does not give the recipient written notice of the applicable statute of limitations, the statute will be tolled until written notice is given or until the person retains an attorney, whichever happens first. [Citation.] This section seeks to walk the line between two competing goals: ‘[E]ncouraging early payments on prima facie meritorious claims while at the same time avoid[ing] the risk that such early payments would lull a claimant into a sense of complacency about filing a lawsuit because of the apparent cooperativeness of the defendant.’ [Citations.]” (Doe, supra, 247 Cal.App.4th at pp. 963-964.)

As a preliminary matter, the Court notes the FAC does not refer specifically to the tolling provision set forth in Insurance Code section 11583. Nevertheless, Plaintiff alleges, in February 2016, he brought the molestation issue to the attention of the school who then failed to advise him of his rights, including any statute of limitations. (See FAC at ¶ 18.) Instead, the school presented him with an agreement to limit his rights against the school and induced him into accepting free therapy which would constitute a settlement of his claims. (Ibid.) Plaintiff thereafter began therapy regarding the instances of child abuse with a licensed healthcare provider on March 2016. (Id. at ¶ 19.)

Defendants persuasively argue that the tolling provision under Insurance Code section 11583 is not applicable as the limitations period expired and thus there is nothing left to “toll.” As stated above, “tolling” by its very definition refers to “stopping the clock” for a particular period of time. (Doe, supra, 247 Cal.App.4th at p. 961; see also People v. Leiva (2013) 56 Cal.4th 498, 507 [“In the context of the tolling of a statute of limitations, we have noted that ‘tolling’ is properly analogized to the stopping and restarting of a clock.”].) If the time period has expired, as is the case here, there is nothing left to toll. This was the situation in Doe where the appellate court upheld the sustaining of the demurrer as the tolling provision under Insurance Code section 11583 did not apply to plaintiffs’ claims that had expired and were not revived. (Id. at pp. 970-971.) The Court therefore finds that Plaintiff’s claims are not subject to tolling under Insurance Code section 11583.

Statute of Limitations Applicable to All Claims

Finally, Plaintiff argues the statute of limitations set forth in section 340.1 is not applicable to all of his claims. However, as the reply points out, section 340.1 on its face applies to “an action for recovery of damages suffered as a result of childhood sexual abuse.” (Code Civ. Proc., § 340.1, subd. (a); see also Rubenstein, supra, 3 Cal.5th at p. 910.) For example, the complaint in Quarry alleged a total of 14 causes of action including claims for negligent hiring, retention, supervision, and failure to protect. (Quarry, supra, 53 Cal.4th at p. 954.) Similarly, the complaint in Doe alleged claims for childhood sexual abuse and negligence. (Doe, supra, 247 Cal.App.4th at p. 959.) Finally, at least one California appellate court has stated that “[t]he statute of limitations for tort claims based on allegations of childhood sexual abuse is found at Code of Civil Procedure section 340.1.” (Roman Catholic Bishop of Oakland v. Super. Ct. (2005) 128 Cal.App.4th 1155, 1159.) Based on the foregoing, the Court concludes section 340.1 is applicable to each cause of action in the FAC which, for reasons stated above, are time barred.

Disposition

The demurrer to the FAC is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND after service of this order on the ground that this action is barred by the statute of limitations set forth in section 340.1. The Court has doubts about Plaintiff’s ability to properly amend to state a cause of action but will nonetheless grant him the opportunity to do so. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970 [in furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint].)

The Court will prepare the Order.