Summary:
California victims have (a) eight (8) years
from the date of reaching their age of majority, or (b)
three (3) years from the date of discovering that they have
a psychological injury arising out of childhood sexual
abuse. The extended statute allows actions against
perpetrators or institutions who owed a duty of
responsibility to the victim. When enacted, this statute had
a 1-year "window" of time in which victims could file claims
which had previously been time-barred. That window has now
closed.
Text of Statute:
Ca. Civ. Proc. Code § 340.1.
Childhood sexual abuse; certificates of merit executed
by attorney; violations; failure to file; name
designation of defendant; periods of limitation;
legislative intent
(a) In an action for recovery of damages suffered as a
result of childhood sexual abuse, the time for commencement
of the action shall be within eight years of the date the
plaintiff attains the age of majority or 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 caused by the sexual
abuse, whichever period expires later, for any of the
following actions:
(1) An action against any person for committing an
act of childhood sexual abuse.
(2) An action for liability against any person or entity
who owed a duty of care to the plaintiff, where a
wrongful or negligent act by that person or entity was a
legal cause of the childhood sexual abuse which resulted
in the injury to the plaintiff.
(3) An action for liability against any person or entity
where an intentional act by that person or entity was a
legal cause of the childhood sexual abuse which resulted
in the injury to the plaintiff.
(b)(1) No action described in paragraph (2) or (3) of
subdivision (a) may be commenced on or after the plaintiff's
26th birthday.
(2) This subdivision does not apply if the person or
entity 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, including, but not limited
to, preventing or avoiding placement of that person in a
function or environment in which contact with children
is an inherent part of that function or environment. For
purposes of this subdivision, providing or requiring
counseling is not sufficient, in and of itself, to
constitute a reasonable step or reasonable safeguard.
[sections relating to the one-year window
for filing previously barred claims is excluded]
(f) Nothing in this section shall be
construed to alter the otherwise applicable burden of proof,
as defined in
Section 115 of the Evidence Code, that a plaintiff has
in a civil action subject to this section.
(g) Every plaintiff 26 years of age or older at the time the
action is filed shall file certificates of merit as
specified in subdivision (h).
(h) Certificates of merit shall be executed by the attorney
for the plaintiff and by a licensed mental health
practitioner selected by the plaintiff declaring,
respectively, as follows, setting forth the facts which
support the declaration:
(1) That the attorney has reviewed the facts of the
case, that the attorney has consulted with at least one
mental health practitioner who is licensed to practice
and practices in this state and who the attorney
reasonably believes is knowledgeable of the relevant
facts and issues involved in the particular action, and
that the attorney has concluded on the basis of that
review and consultation that there is reasonable and
meritorious cause for the filing of the action. The
person consulted may not be a party to the litigation.
(2) That the mental health practitioner consulted is
licensed to practice and practices in this state and is
not a party to the action, that the practitioner is not
treating and has not treated the plaintiff, and that the
practitioner has interviewed the plaintiff and is
knowledgeable of the relevant facts and issues involved
in the particular action, and has concluded, on the
basis of his or her knowledge of the facts and issues,
that in his or her professional opinion there is a
reasonable basis to believe that the plaintiff had been
subject to childhood sexual abuse.
(3) That the attorney was unable to obtain the
consultation required by paragraph (1) because a statute
of limitations would impair the action and that the
certificates required by paragraphs (1) and (2) could
not be obtained before the impairment of the action. If
a certificate is executed pursuant to this paragraph,
the certificates required by paragraphs (1) and (2)
shall be filed within 60 days after filing the
complaint.
(i) Where certificates are required pursuant to
subdivision (g), the attorney for the plaintiff shall
execute a separate certificate of merit for each defendant
named in the complaint.
(j) In any action subject
to subdivision (g), no defendant may be served, and the duty
to serve a defendant with process does not attach, until the
court has reviewed the certificates of merit filed pursuant
to subdivision (h) with respect to that defendant, and has
found, in camera, based solely on those certificates of
merit, that there is reasonable and meritorious cause for
the filing of the action against that defendant. At that
time, the duty to serve that defendant with process shall
attach.
(k) A violation of this section may constitute
unprofessional conduct and may be the grounds for discipline
against the attorney.
(l) The failure to file certificates in accordance with this
section shall be grounds for a demurrer pursuant to
Section 430.10 or a motion
to strike pursuant to
Section 435.
(m) In any action subject to subdivision (g), no defendant
may be named except by "Doe" designation in any pleadings or
papers filed in the action until there has been a showing of
corroborative fact as to the charging allegations against
that defendant.
(n) At any time after the action is filed, the plaintiff may
apply to the court for permission to amend the complaint to
substitute the name of the defendant or defendants for the
fictitious designation, as follows:
(1) The application shall be accompanied by a
certificate of corroborative fact executed by the
attorney for the plaintiff. The certificate shall
declare that the attorney has discovered one or more
facts corroborative of one or more of the charging
allegations against a defendant or defendants, and shall
set forth in clear and concise terms the nature and
substance of the corroborative fact. If the
corroborative fact is evidenced by the statement of a
witness or the contents of a document, the certificate
shall declare that the attorney has personal knowledge
of the statement of the witness or of the contents of
the document, and the identity and location of the
witness or document shall be included in the
certificate. For purposes of this section, a fact is
corroborative of an allegation if it confirms or
supports the allegation. The opinion of any mental
health practitioner concerning the plaintiff shall not
constitute a corroborative fact for purposes of this
section.
(2) Where the application to name a defendant is made
prior to that defendant's appearance in the action,
neither the application nor the certificate of
corroborative fact by the attorney shall be served on
the defendant or defendants, nor on any other party or
their counsel of record.
(3) Where the application to name a defendant is made
after that defendant's appearance in the action, the
application shall be served on all parties and proof of
service provided to the court, but the certificate of
corroborative fact by the attorney shall not be served
on any party or their counsel of record.
(o) The court shall review the application and the
certificate of corroborative fact in camera and, based
solely on the certificate and any reasonable inferences to
be drawn from the certificate, shall, if one or more facts
corroborative of one or more of the charging allegations
against a defendant has been shown, order that the complaint
may be amended to substitute the name of the defendant or
defendants.
(p) The court shall keep under seal and confidential from
the public and all parties to the litigation, other than the
plaintiff, any and all certificates of corroborative fact
filed pursuant to subdivision (n).
(q) Upon the favorable conclusion of the
litigation with respect to any defendant for whom a
certificate of merit was filed or for whom a certificate of
merit should have been filed pursuant to this section, the
court may, upon the motion of a party or upon the court's
own motion, verify compliance with this section by requiring
the attorney for the plaintiff who was required by
subdivision (h) to execute the certificate to reveal the
name, address, and telephone number of the person or persons
consulted with pursuant to subdivision (h) that were relied
upon by the attorney in preparation of the certificate of
merit. The name, address, and telephone number shall be
disclosed to the trial judge in camera and in the absence of
the moving party. If the court finds there has been a
failure to comply with this section, the court may order a
party, a party's attorney, or both, to pay any reasonable
expenses, including attorney's fees, incurred by the
defendant for whom a certificate of merit should have been
filed.
(r) The amendments to this section enacted at the 1990
portion of the 1989-90 Regular Session shall 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.
(s) The Legislature declares that it is the intent of the
Legislature, in enacting the amendments to this section
enacted at the 1994 portion of the 1993-94 Regular Session,
that the express language of revival added to this section
by those amendments shall apply to any action commenced on
or after January 1, 1991.
(t) Nothing in the amendments to this section enacted at the
1998 portion of the 1997-98 Regular Session is intended to
create a new theory of liability.
(u) The amendments to subdivision (a) of this section,
enacted at the 1998 portion of the 1997-98 Regular Session,
shall apply to any action commenced on or after January 1,
1999, and to any action filed prior to January 1, 1999, and
still pending on that date, including any action or causes
of action which would have been barred by the laws in effect
prior to January 1, 1999. Nothing in this subdivision is
intended to revive actions or causes of action as to which
there has been a final adjudication prior to January 1,
1999.
(Added by Stats.1986, c. 914, § 1. Amended
by
Stats.1990, c. 1578 (S.B.108), § 1;
Stats.1994, c. 288 (A.B.2846), § 1;
Stats.1998, c. 1032 (A.B.1651), § 1;
Stats.1999, c. 120 (S.B.674), § 1;
Stats.2002, c. 149 (S.B.1779), § 1.)
