PD Doe v. San Diego-Imperial Council

224 Cal. Rptr. 3d 273, 16 Cal. App. 5th 301, 2017 WL 4639245, 2017 Cal. App. LEXIS 895
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 17, 2017
DocketD070414
StatusPublished
Cited by5 cases

This text of 224 Cal. Rptr. 3d 273 (PD Doe v. San Diego-Imperial Council) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PD Doe v. San Diego-Imperial Council, 224 Cal. Rptr. 3d 273, 16 Cal. App. 5th 301, 2017 WL 4639245, 2017 Cal. App. LEXIS 895 (Cal. Ct. App. 2017).

Opinion

AARON, J.

*304I.

INTRODUCTION

Plaintiff John PD Doe was sexually abused by a Boy Scout master beginning in 1998 and continuing for a number of years at a ranch owned and operated by the defendants, San Diego-Imperial Council and Boy Scouts of America (the defendants). In 2013, many years after the abuse and after Doe obtained psychological therapy, he filed this action against the defendants. The defendants ultimately demurred to Doe's complaint on the ground that he failed to file a certificate of merit, as required by Code of Civil Procedure section 340.1 ( section 340.1 ), which applies to actions to recover damages for childhood sexual abuse. The trial court sustained the defendants' demurrer on this ground, without leave to amend. Doe appealed the trial court's judgment, and this court affirmed the judgment in favor of the defendants in Doe v. San Diego-Imperial Council (2015) 239 Cal.App.4th.81, 190 Cal.Rptr.3d 755 ( Doe I ).

Following the issuance of the remittitur, the defendants moved for an award of attorney fees with respect to the fees incurred in defendant Doe's appeal. The defendants sought attorney fees pursuant to subdivision (q) of section 340.1. That provision provides that at the conclusion of litigation involving childhood sexual abuse, if the litigation has come to a "favorable conclusion ... with respect to any defendant" as to whom the plaintiff was required to file a certificate of merit, either the defendant or the court may verify the plaintiff's compliance with the certificate of merit requirement. If the court finds that the plaintiff failed to comply with the certificate of merit requirement, the court may award attorney fees to the defendant for whom the certificate of merit requirement was not met. ( § 340.1, subd. (q).)

*305The trial court awarded the defendants the fees that they requested without analyzing the statutory provision or stating the court's reasoning as to why such fees were appropriate.

Doe appeals from the trial court's order awarding the defendants attorney fees resulting from the prior appeal. Doe contends that section 340.1, subdivision (q) was designed to permit an award of attorney fees only in situations in which there is some indication that the plaintiff's claim of sexual abuse is without merit, such that the conclusion of the litigation may be deemed to constitute a " [']favorable conclusion of the litigation with respect to['] " the defendants for whom a certificate of merit was filed or should have been filed. Doe asserts that in this case, where the trial court acknowledged that Doe's claim was not frivolous, and there was no indication that the claim lacked merit, the defendants were not eligible for an award of *276attorney fees pursuant to section 340.1, subdivision (q).

The defendants contend that they are entitled to attorney fees pursuant to section 340.1, subdivision (q) because they obtained a dismissal of the action, and, as a result, they are prevailing parties and are entitled to attorney fees. They assert that a "favorable conclusion" is not a prerequisite to an award of attorney fees under section 340.1, subdivision (q), and that even if a "favorable conclusion" is a prerequisite, the dismissal of Doe's complaint constitutes such a "favorable conclusion."

We conclude that a defendant is eligible for an award of attorney fees pursuant to section 340.1, subdivision (q) only where the litigation has resulted in a "favorable conclusion" for that defendant, and that a "favorable conclusion" requires a result that is reflective of the merits of the litigation. In this case, the dismissal of Doe's action was procured as a result of a procedural defect that does not reflect on the merits of the action. As a result, there was no "favorable conclusion" with respect to the defendants, and they are therefore not eligible to be awarded their attorney fees pursuant to section 340.1, subdivision (q). We therefore reverse the order of the trial court awarding the defendants attorney fees.

II.

FACTUAL AND PROCEDURAL BACKGROUND1

Plaintiff John Doe was a Boy Scout who attended the Mataguay Scout Ranch (the Ranch) where Glenn Jordan was an employee. The Ranch is *306owned and operated by defendants San Diego-Imperial Council and Boy Scouts of America. As alleged by Doe, beginning in the summer of 1998, when Doe was 14 years old, and continuing until approximately 2000, Jordan repeatedly sexually abused Doe. According to Doe, the defendants knew that Jordan had a propensity to molest children, but they failed to warn Doe or his family, or other camp attendees.

In 2003, when Doe was approximately 19 or 20 years old, the defendants provided counseling for Doe because of the abuse he had suffered. Through the counseling process, Doe realized that the sexual abuse had caused him to suffer emotional and psychological problems.

In November 2012, Doe retained counsel. On January 9, 2013, Doe filed this action against the defendants alleging various causes of action. After the defendants demurred, Doe filed a first amended complaint. The defendants again demurred and moved to strike the complaint, arguing, among other things, that the entire first amended complaint was subject to demurrer or should be stricken because Doe had failed to file certificates of merit, as required under section 340.1, subdivision (g). The trial court sustained the demurrer without leave to amend on this ground and concluded that the motion to strike was moot. After hearing oral argument, the trial court confirmed its ruling and later entered judgment in favor of the defendants.

Doe appealed the trial court's judgment, arguing that Insurance Code section 11583 tolled the statute of limitation for his claims. According to Doe, although section 340.1 requires any plaintiff who is 26 years of age or older at the time the action is filed to file certificates of merit together with the complaint, and even though he was chronologically 29 years old when he filed his lawsuit, under the tolling provisions *277of Insurance Code section 11583, he should have been considered to have been only 20 years old at the time he filed his complaint. ( Doe I , supra , 239 Cal.App.4th at p. 85, 190 Cal.Rptr.3d 755.) Doe asserted that the tolling provision of Insurance Code section 11583 applied to him as a result of the defendants' failure to notify him in writing about the statute of limitations when the defendants provided him counseling for the emotional suffering that he endured as a result of the sexual abuse. ( Doe I , supra , at p. 88, 190 Cal.Rptr.3d 755

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Cite This Page — Counsel Stack

Bluebook (online)
224 Cal. Rptr. 3d 273, 16 Cal. App. 5th 301, 2017 WL 4639245, 2017 Cal. App. LEXIS 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pd-doe-v-san-diego-imperial-council-calctapp5d-2017.