Marsha v. v. GARDNER

231 Cal. App. 3d 265, 281 Cal. Rptr. 473, 91 Daily Journal DAR 6191, 91 Cal. Daily Op. Serv. 3925, 1991 Cal. App. LEXIS 521

• Court: California Court of Appeal
• Decided: May 24, 1991
• Docket: B050677
• Status: Published

Opinions

Opinion

WOODS (Fred), J.

In her complaint, appellant alleged she was sexually molested by her stepfather beginning when she was eight years old and ending when she was seventeen years old. She filed her complaint 15 years later when she was 32 years old. The trial court, finding the delayed discovery doctrine inapplicable (DeRose v. Carswell (1987) 196 Cal.App.3d 1011 [242 Cal.Rptr. 368]), sustained without leave to amend respondent’s demurrer. Appellant appeals from the judgment of dismissal. We affirm.

Procedural and Factual Background

On August 11, 1987, appellant filed a complaint in Sonoma County alleging two causes of action: personal injury and negligent infliction of emotional distress. By stipulation filed October 7,1988, the parties agreed to transfer the matter to Los Angeles County. On February 10, 1989, asserting the statute of limitations barred the complaint, respondent filed a general demurrer. On March 10, 1989, the court sustained the demurrer without leave to amend. Appellant appealed. On January 24, 1990, in an unpublished opinion, we dismissed the appeal because, after the trial court sustained the demurrer without leave to amend, no judgment of dismissal had been entered. On appellant’s motion the trial court dismissed the complaint and entered judgment. Appellant appeals from the judgment of dismissal.

As alleged, the facts are these. In 1963, when appellant was eight years old, respondent, her stepfather who lived with the family in their Lancaster home, began molesting her. The acts of molestation, which continued until 1972, when appellant was 17 years old, consisted of “fondling [her] breasts, pinching her buttocks, oral copulation, digital penetration of her vagina, masturbation aided by the child, violent struggle and insistent demands for sexual contact on a regular basis. These acts of sexual molestation were accompanied by violent threats of injury and bribery for sexual favors.”¹

As a result of respondent’s acts, appellant developed over the nine-year sexual molestation period and continuing thereafter, “feelings of great shame, embarrassment, humiliation, fear, confusion about herself, guilt, self-blame, self-hate, anxiety, extreme depression, psychosomatic and sleep-related complaints, inability to differentiate between sex and affection, and difficulty forming meaningful trust relationships.”

The sexual molestation experience caused appellant “to feel trapped . . . isolated . . and “to repress, deny, and psychologically disassociate from her experience.”

“As a result of [this] disassociation and [ ] psychological accommodation . . . she grew up without perceiving, knowing or understanding the existence and nature of the psychological and emotional injuries which [respondent’s] conduct caused . . . her.”

Only beginning on September 2, 1986, when appellant commenced intensive psychotherapy, did appellant discover “the relationship of the physical and mental distress she was suffering” to the acts of sexual molestation by respondent.

Discussion

1. Standard of review

“In reviewing the sufficiency of a complaint against a general demurrer, 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.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)

2. Statutes of limitation

Three statutes of limitation are relevant. Code of Civil Procedure section 352² tolls the limitation period until a person becomes 18 years old. Section 340 prescribes a one-year period to bring an action “for injury . . . caused by the wrongful act or neglect of another.” And section 340.1 prescribes a three-year period to bring an action against a household or family member who commits certain sexual offenses.³

Since appellant alleged she was born April 1, 1955, the tolling period expired April 2, 1973 (§ 352) and the section 340.1 three-year limitation period expired April 2, 1976 (Colleen L. v. Howard M. (1989) 209 Cal.App.3d 542 [257 Cal.Rptr. 263]), over eleven years before appellant filed her complaint on August 11, 1987.

Thus, unless the limitation period was extended by delayed discovery or respondent is equitably estopped from asserting the limitation bar, the trial court correctly sustained the demurrer.

3. Delayed discovery

California law has long recognized delayed discovery. (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 190 [98 Cal.Rptr. 837, 491 P.2d 421]; G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25 [122 Cal.Rptr. 218].) Section 340.1, subdivision (d) expressly permits its application: “Nothing in this bill is intended to preclude the courts from applying delayed discovery exceptions to the accrual of a cause of action for sexual molestation of a minor.”

The doctrine arose from “concern for the practical needs of prospective plaintiffs. Our law has evolved ... to a point where the limitations clock only begins to run on certain causes of action when the injured party discovers or should have discovered the facts supporting liability.” (Davies v. Krasna (1975) 14 Cal.3d 502, 512 [121 Cal.Rptr. 705, 535 P.2d 1161, 79 A.L.R.3d 807].)

“Impelled by this concern for the pragmatic, we have drifted away from the view . . . that a limitations period necessarily begins when an act or omission of defendant constitutes a legal wrong as a matter of substantive

law. [Citation.] Rather, we generally now subscribe to the view that the period cannot run before plaintiff possesses a true cause of action, by which we mean that events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages.” (14 Cal.3d at p. 513.)

But pragmatic concerns also require limits on delayed discovery. Without such limits the purpose of limitations statutes—“ ‘ “to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared”’” (Prudential-LMI Ins. v. Superior Court (1990) 51 Cal.3d 674, 684 [274 Cal.Rptr. 387, 798 P.2d 1230])—would be thwarted. Thus, “although a right to recover nominal damages will not trigger the running of the period of limitation, the infliction of appreciable and actual harm, however uncertain in amount, will commence the statutory period .... [N]either uncertainty as to the amount of damages nor difficulty in proving damages tolls the period of limitations.” (Davies v. Krasna, supra, 14 Cal.3d 502, 514.) (Italics added.)

In addressing appellant’s claim of delayed discovery it is useful to note what she does not claim. Appellant professes no contemporaneous or belated ignorance of respondent’s conduct. There is no allegation that when respondent allegedly fondled her breasts she was unaware he was fondling her breasts. Similarly, there is no allegation that when respondent allegedly committed each of the other acts of sexual molestation appellant was unaware he was doing so. Nor does appellant claim that at any time after an act of sexual molestation occurred she forgot or suppressed or otherwise was unaware of that act. (Cf. Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d 176, 190.)

Further, appellant does not profess contemporaneous or belated ignorance of the wrongfulness of respondent’s conduct. In fact, in her brief appellant concedes that “certain aspects of the cause of action were obvious . . . the tortious act (the repeated sexual molestations).”

What appellant does claim is that her discovery of “ongoing deep-seated psychological injuries and the causal link between those injuries and [respondent’s] misconduct” was delayed.

The claim has been made before. “[A] number of plaintiffs . . . have alleged that psychological defense mechanisms caused by sexual abuse, especially in the context of incest,⁴ prevent recognition of the cause and extent of emotional harm.” (DeRose v. Carswell, supra, 196 Cal.App.3d 1011, 1016).

One of those plaintiffs was Dianne DeRose. She alleged that her step-grandfather began sexually molesting her when she was four years old and didn’t stop until she was eleven. Although she became 18 on March 2, 1980, she did not file her sexual abuse complaint until January 13, 1986, 4 years and 10 months after the 1-year limitation statute⁵ (§ 340, subd. (3)) had expired.

DeRose, like appellant, argued “she [was] entitled to invoke the delayed discovery doctrine because she did not appreciate until recently the causal relationship between the alleged assaults and her emotional injuries, even though she was aware of the assaults.” (DeRose v. Carswell, supra, 196 Cal.App.3d 1011, 1016).

In an opinion we find persuasive, with facts indistinguishable from the instant case, DeRose’s claim was rejected. (DeRose v. Carswell, supra, 196 Cal.App.3d at pp. 1016-1021.)

DeRose, as does appellant, “presented] information from psychological and sociological literature about incestuous sexual abuse.” (196 Cal.App.3d at p. 1016.) DeRose explained, as does appellant, that the pressures of such sexual abuse “sometimes prevent survivors of incest from understanding their emotional injuries until they receive appropriate therapy.” {Id. at p. 1017.)

We have no reason to doubt the validity of this considerable and poignant literature. The fact of sexual molestation of children, its prevalence, and the deep-seated scars left on its victims can no longer be seriously questioned. Nevertheless, we conclude that appellant’s complaint failed to “satisfy the minimum conditions for application of the delayed discovery rule.” (196 Cal.App.3d at p. 1017.)

“[T]he delayed discovery doctrine applies only when a plaintiff has not discovered all of the facts essential to the cause of action. Conversely, if the plaintiff has discovered all the essential facts, the doctrine does not apply.” (196 Cal.App.3d at p. 1017.) Appellant had long since discovered, in fact she always knew, that respondent had sexually molested her, that his acts “were all committed against [her] will and without her consent,” that he had “committed wrongful acts upon [her],” and that the conduct involved “violent struggle and insistent demands for sexual contact.”

These were no nominal damages appellant suffered. Rather they were “appreciable and actual harm” and as such “commence[d] the statutory period.” (Davies v. Krasna, supra, 14 Cal.3d 502, 512.) That appellant was unaware of additional harm (“feelings of great shame, embarrassment, humiliation, fear, confusion about herself, guilt, self-blame, self-hate, anxiety, extreme depression, psychosomatic and sleep-related complaints, inability to differentiate between sex and affection, and difficulty forming meaningful trust relationships”) only created “uncertainty as to the amount of damages [and did not] toll [ ] the period of limitations.” (Id. at p. 514; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111 [245 Cal.Rptr. 658, 751 P.2d 923]; Evans v. Eckelman (1990) 216 Cal.App.3d 1609, 1620 [265 Cal.Rptr. 605] [“The extent of damage is not an element of a cause of action in tort, and the general rule is that the cause of action is complete on the sustaining of ‘actual and appreciable harm,’ on which the recoverable damages would be more than nominal. (Davies v. Krasna, supra, 14 Cal.3d at p. 514.) We agree with the court in DeRose v. Carswell, supra, 196 Cal.App.3d at pages 1022-1023, that a young child sexually molested against his or her will suffers an actual and appreciable injury at the time, and would be entitled to more than nominal damages. Unless awareness of the acts is immediately suppressed the plaintiff would necessarily be aware of the injury, and the hidden nature of the full damage would not bring the delayed accrual rule into play.”]).

Appellant would distinguish DeRose on the ground that it involved assault and battery. We disagree. The DeRose complaint, like appellant’s, also alleged negligent infliction of emotional distress. Both factually alleged child sexual molestation.

Appellant also argues DeRose “ignored” section 340.1, subdivision (d). It did not. (DeRose v. Carswell, supra, 196 Cal.App.3d at p. 1020.)

Appellant further argues that because section 340.1, subdivision (d) applies to this case, therefore delayed discovery also must apply. She is incorrect. Subdivision (d) merely permits a delayed discovery exception when it applies. It does not affect or alter the substance of the delayed discovery rule, which, as we have explained, here is inapplicable.

4. Equitable estoppel

Amici curiae argue respondent’s conduct estops him from asserting the statute of limitations. Assuming that his conduct, while it lasted, would constitute such a bar, the argument is unavailing. As DeRose noted, “[t]he fundamental problem with [appellant’s] estoppel argument is that she did nothing to pursue her claims even after [respondent’s] conduct ceased." (196 Cal.App.3d at p. 1026.) Respondent’s conduct ceased when appellant was 17 years old and left the household.

5. Senate Bill No. 108

In September 1990, the Legislature passed, and the Governor signed, Senate Bill No. 108 (Stats. 1990, ch. 1578) amending section 340.1. This legislation prescribes either an eight-year limitation period (from the age of majority) or a three-year from discovery period, whichever occurs later, for “childhood sexual abuse” civil actions. The legislation applies “to any action commenced on or after January 1, 1991.” (§ 340.1, subd. (k).)

The amendment does not apply to the instant matter. Even if it did, its eight-year limitation period would have expired in 1981, six years before appellant filed her complaint. Its three years from discovery period may also have expired before appellant filed her complaint.

6. Without leave to amend

Before sustaining the demurrer without leave to amend, the trial court offered trial counsel for appellant an opportunity to amend the complaint. The offer was declined, trial counsel stating: “Your Honor, the plaintiff can’t do better in her Complaint than she has already. The facts, as pled, are the facts as they occurred.”

Under these circumstances sustaining the demurrer without leave to amend was proper.

Disposition

The judgment is affirmed. Costs on appeal are awarded to respondent.

Lillie, R J., concurred.

1 The complaint does not further specify when, during the nine-year period, any of the alleged acts occurred, nor the number of times any act occurred.

2 Unless otherwise noted all statutory references are to the Code of Civil Procedure. In pertinent part the section provides:

“(a) If a person entitled to bring an action ... be, at the time the cause of action accrued, either: H] 1. Under the age of majority ... the time of such disability is not a part of the time limited for the commencement of the action.”

3 Only six categories of sexual misconduct are covered: 1. lewd acts with a child under 14 years old; 2. fornication; 3. sodomy; 4. oral copulation; 5. genital penetration with a foreign object; and 6. anal penetration with a foreign object (§ 340.1, subd. (a).) Categories 2 through 6 require that at the time of the act the victim-plaintiff be under 18 years old.

Of these six sexual misconduct categories, the complaint alleged respondent had committed three (lewd acts with a child under 14 years old, oral copulation, and genital penetration with a foreign object). Of the three, only two (oral copulation and genital penetration with a foreign object) are covered by the statute if committed after appellant was 14 years old. The complaint fails to allege when, during the nine-year period, any of the acts occurred or whether appellant was under founteen years of age when they occurred. If such alleged acts as “fondling her breasts and pinching her buttocks” occurred after appellant was 14 years old, they are not covered by section 340.1, subdivision (a).

4 Appellant repeatedly refers to respondent’s conduct as “incest.” Although the effect of respondent’s alleged conduct on appellant may be comparable to or even indistinguishable from incest, the term is inaccurate. Respondent is not related “by blood” to appellant nor did he allegedly have intercourse with her. (Pen. Code, § 285.)

5 Section 340.1 became effective January 1, 1987.