BILL NUMBER: SB 1779 CHAPTERED
BILL TEXT
CHAPTER 149
FILED WITH SECRETARY OF STATE JULY 11, 2002
APPROVED BY GOVERNOR JULY 10, 2002
PASSED THE SENATE JUNE 27, 2002
PASSED THE ASSEMBLY JUNE 24, 2002
AMENDED IN ASSEMBLY JUNE 17, 2002
AMENDED IN ASSEMBLY JUNE 6, 2002
AMENDED IN SENATE MAY 15, 2002
AMENDED IN SENATE MAY 2, 2002
INTRODUCED BY Senators Burton and Escutia
(Principal coauthors: Assembly Members Rod Pacheco and Shelley)
(Coauthors: Assembly Members Corbett, Dutra, Firebaugh, Frommer,
Jackson, Vargas, and Wesson)
FEBRUARY 21, 2002
An act to amend Section 340.1 of the Code of Civil Procedure,
relating to damages.
LEGISLATIVE COUNSEL'S DIGEST
SB 1779, Burton. Damages: childhood sexual abuse: statute of
limitations.
Existing law requires that an action for recovery of damages
suffered as a result of childhood sexual abuse, as defined, be
commenced within 8 years of the date the plaintiff attains the age of
majority or within 3 years of the date the plaintiff discovers or
reasonably should have discovered that the psychological injury or
illness occurring after the age of majority was caused by sexual
abuse, whichever occurs later, and provides that certain of those
actions may not be commenced on or after the plaintiff's 26th
birthday.
This bill would provide that those actions may be commenced on or
after the plaintiff's 26th birthday if the person or entity against
whom the action is commenced knew, 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 implement reasonable safeguards, to avoid future acts of
unlawful sexual conduct. The bill would revive a cause of action
solely for those claims for a period of one year, except as
specified.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 340.1 of the Code of Civil Procedure is amended
to read:
340.1. (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.
(c) Notwithstanding any other provision of law, any claim for
damages described in paragraph (2) or (3) of subdivision (a) that is
permitted to be filed pursuant to paragraph (2) of subdivision (b)
that would otherwise be barred as of January 1, 2003, solely because
the applicable statute of limitations has or had expired, is revived,
and, in that case, a cause of action may be commenced within one
year of January 1, 2003. Nothing in this subdivision shall be
construed to alter the applicable statute of limitations period of an
action that is not time barred as of January 1, 2003.
(d) Subdivision (c) does not apply to either of the following:
(1) Any claim that has been litigated to finality on the merits in
any court of competent jurisdiction prior to January 1, 2003.
Termination of a prior action on the basis of the statute of
limitations does not constitute a claim that has been litigated to
finality on the merits.
(2) Any written, compromised settlement agreement which has been
entered into between a plaintiff and a defendant where the plaintiff
was represented by an attorney who was admitted to practice law in
this state at the time of the settlement, and the plaintiff signed
the agreement.
(e) "Childhood sexual abuse" as used in this section includes any
act committed against the plaintiff that occurred when the plaintiff
was under the age of 18 years and that would have been proscribed by
Section 266j of the Penal Code; Section 285 of the Penal Code;
paragraph (1) or (2) of subdivision (b), or of subdivision (c), of
Section 286 of the Penal Code; subdivision (a) or (b) of Section 288
of the Penal Code; paragraph (1) or (2) of subdivision (b), or of
subdivision (c), of Section 288a of the Penal Code; subdivision (h),
(i), or (j) of Section 289 of the Penal Code; Section 647.6 of the
Penal Code; or any prior laws of this state of similar effect at the
time the act was committed. Nothing in this subdivision limits the
availability of causes of action permitted under subdivision (a),
including causes of action against persons or entities other than the
alleged perpetrator of the abuse.
(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.