BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
SB 1339 S
Senator Simitian B
As Introduced
Hearing Date: March 25, 2008 1
Code of Civil Procedure 3
ADM 3
9
SUBJECT
Government Tort Claims: Childhood Sexual Abuse
Six-Month Claim Presentation
DESCRIPTION
This bill would provide that childhood sexual abuse claims
against local public entities would not be subject to the
Government Tort Claims Act, which generally requires claims
for damages to be presented to the public entity within six
months of when an injury occurred.
BACKGROUND
In 2002, the Legislature enacted SB 1779 (Burton, Chapter
149, Statutes of 2002), to provide that an action for
recovery of damages suffered as a result of childhood
sexual abuse may be commenced on or after the plaintiff's
26th birthday if the third party defendant person or
entity 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. (Code of
Civil Procedure (CCP) Section 340.1(b)(2).) SB 1779 also
enacted Section 340.1(c) to allow a claim under Section
340.0(b)(2) to be brought within a one-year window, January
1, 2003 to December 31, 2003, even if that claim would
otherwise be time barred as of January 1, 2003 because of
an applicable statute of limitations.
(more)
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The Government Tort Claims Act (the Act) generally governs
damage claims brought against public entities. (Government
Code (GC) Section 815 et seq.) The Act requires that a
claim relating to a cause of action for death or for injury
to a person be presented in writing to the public entity
not later than six months after accrual of the cause or
causes of action. (GC Section 911.2.)
In Shirk v. Vista Unified School District (2007) 42 Cal.4th
201, the California Supreme Court held that,
notwithstanding CCP Section 340.1 (childhood sexual abuse
statute of limitations timeframes) and its delayed
discovery provisions, a timely public entity six-month
claim is a prerequisite to maintaining an action for
childhood sexual abuse against a public entity school
district. The Court based its holding primarily on its
finding that nothing in the express language of SB 1779 or
the bill's legislative history indicated an intent by the
Legislature to exempt Section 340.1 claims from the Act and
its six-month claim presentation requirement. (See Comment
2 for details.)
This bill is intended to address the Shirk decision by
expressly providing that childhood sexual abuse actions
against public entities are exempted from government tort
claims requirements.
CHANGES TO EXISTING LAW
Existing law , the Act, provides, in part, that a claim
relating to a cause of action for death or injury to a
person against a public entity must be presented in writing
as specified to the public entity not later than six months
after the accrual of the cause of action. (GC Sections
911.2, 915, 910.)
Existing law provides that the date of accrual of a cause
of action is the date upon which the cause of action would
be deemed to have accrued within the meaning of the
applicable statute of limitations if no claim presentation
were required before a court action could be commenced.
(GC Section 901.)
Existing law provides that 12 specified claims against
local public entities are exempted from the Act. (GC
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Section 905; see Comment 3 for details.)
Existing law provides that an action for recovery of
damages suffered as a result of childhood sexual abuse must
be commenced within eight years of the date the plaintiff
attains the age of majority (age 26) 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. (CCP Section 340.1(a).)
Existing law provides that no action described in (a)(2) or
(3) may be commenced on or after the plaintiff's 26th
birthday except as provided in (b)(2). (CCP Section
340.1(b)(1).)
Existing law provides that an action for recovery of
damages suffered as a result of childhood sexual abuse may
be commenced on or after the plaintiff's 26th birthday
against a defendant not the direct perpetrator of the abuse
if that person or entity 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 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. (CCP
Section 340.1(b)(2).)
Existing law provides that, notwithstanding any other
provision of law, any claim for damages described in (a)(2)
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or (3) that is permitted to be filed pursuant to (b)(2)
that would otherwise be barred as of January 1, 2003,
solely because the applicable statute of limitations has or
had expired, is revived, and a cause of action may be
commenced within one year of January 1, 2003. (CCP Section
340.1(c).)
Existing case law holds that, notwithstanding CCP Section
340.1 and its delayed discovery provisions, a timely
[public entity six-month] claim is a prerequisite to
maintaining an action for childhood sexual abuse against a
public entity [school district]. (Shirk v. Vista Unified
School District (2007) 42 Cal.4th 201; see Comment 2 for
details.)
This bill would amend GC Section 905 to provide that claims
against local public entities for the recovery of damages
suffered as a result of childhood sexual abuse made
pursuant to CCP Section 340.1 would be exempt from the
Government Tort Claims Act and its six-month public entity
claim presentation requirement.
COMMENT
1. Stated need for the bill: SB 1339 is legislative
response to California Supreme Court decision in Shirk,
and would treat childhood sexual abuse actions against a
public entity the same as one against a private entity
The author writes:
This bill is essential to ensure that victims severely
damaged by childhood sexual abuse are able to seek
compensation from those responsible, whether those
responsible are private or public entities. For many
victims, the emotional and psychological trauma from
childhood sexual abuse does not manifest itself until
well into adulthood, when some event in their current
life triggers remembrance of the past abuse and brings on
the trauma (CCP Section 340.1's delayed discovery
provisions recognize this). Such an event occurred for
Linda Shirk, the plaintiff in Shirk v. Vista Unified
School District. Linda Shirk had been sexually abused by
a public school teacher when she was 15 years old in the
late 1970's. In 2001, her 15-year-old daughter attended
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the same school, the teacher who had abused her was still
there, and admitted to the past acts of abuse.
Linda Shirk brought a claim against the school district
asserting under Section 340.1 that the district knew or
should have known that the teacher was a sexual predator
who engaged in sexual misconduct with students. Because
the school district is a public entity, Linda Shirk
attempted to comply with the government claim
requirements. However, the California Supreme Court
held, in determining the interaction between Section
340.1 and the requirement for government tort claims that
a claim be presented to the public entity within six
months of when the injury occurred, that the six-month
claim requirement superseded the delayed discovery
provisions of Section 340.1. The Court stated that it
reached this conclusion because the Legislature had not
specifically exempted Section 340.1 actions against
public entities from government tort claim requirements.
SB 1339 would respond to the Shirk decision by
specifically exempting Section 340.1 civil actions for
childhood sexual abuse from government tort claim
requirements, thereby treating Section 340.1 actions
against public entities the same as those against private
entities.
2. The Shirk decision
In the late 1970's, then 15-year-old plaintiff Linda
Shirk was sexually abused by her public school English
teacher. In 2001, Shirk's 15-year-old daughter attended
the same school, the teacher was still teaching there,
and Shirk encountered him at school events. Shirk became
"very upset" following these encounters. A mental health
practitioner concluded that Shirk was suffering
psychological injury from the prior sexual abuse. The
teacher admitted sexually abusing Shirk and another
student. Shirk presented a claim to the school district,
and thereafter filed a complaint alleging that the
district knew or should have known that the teacher was a
sexual predator engaging in sexual misconduct with
students, including Shirk. Shirk said in her complaint
that the teacher engaged in sexual conduct with her 200
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times over an 18-month period in the late 1970's.
The district demurred to Shirk's complaint asserting that
it was time-barred because she failed to present a claim
to the district in 1980, within six months of the last
act of sexual abuse. Shirk argued that her claim
presentation and complaint were timely because, under CCP
Section 340.1's delayed discovery provisions, she had
only recently discovered the cause of her adult
psychological injuries. The trial court sustained the
district's demurrer without leave to amend, but the
appellate court disagreed:
[The Court of Appeal] reasoned that the Legislature's
addition in 1998 of provisions making entities liable
for sexual abuse committed by their employees (
340.1, subd. (a)(2) & (3)) coupled with its failure
"to make special rules regarding the application of
[government] claims requirements," indicated
legislative intent not to differentiate between public
entity defendants and private entity defendants.
Accordingly, the Court of Appeal held that in 2002,
when the Legislature enacted the revival provision to
open a one-year window for childhood sexual abuse
plaintiffs to bring statutorily lapsed causes of
action, it also extended the government claims
statute's deadline for presenting a claim to a public
entity defendant. The Court of Appeal reasoned that,
because plaintiff only discovered on September 12,
2003, that the cause of her psychological injury was
the teacher's sexual abuse of her more than two
decades earlier, the claim she presented to the School
District on that same day was timely. (42 Cal.4th at
206.)
The California Supreme Court reversed the Court of Appeal
decision. The Court reviewed CCP Section 340.1 and the
Act's six-month written claim requirement for claims
against a public entity, finding that "[t]imely claim
presentation is not merely a procedural requirement, but
is, ? 'a condition precedent to plaintiff's maintaining
an action against defendant' ? and thus an element of the
plaintiff's cause of action. ? Complaints that do not
allege facts demonstrating either that a claim was timely
presented or that compliance with the claims statute is
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excused are subject to a general demurrer for not stating
facts sufficient to constitute a cause of action." (Id.
at 209; italics added.)
The Court went on to find that the legislative history of
the 2002 amendments to CCP Section 340.1 were "virtually
silent as to its impact on a public entity defendant,"
and thus:
Had the Legislature intended to also revive in [CCP
Section 340.1] the claim presentation deadline under
the government claims statute, it could have easily
said so. It did not. (Id. at 213.)
We [conclude] that the Legislature's amendment [in
2002] of section 340.1, subdivision (c), revived for
the year 2003 certain lapsed causes of action against
nonpublic entities, but that nothing in the express
language of those amendments or in the history of
their adoption indicates an intent by the Legislature
to apply against public entity defendants the one-year
revival provision for certain causes of action. (Id.
at 214.)
Thus, while the Court focused on subdivision (c) of CCP
340.1 - the one-year revival provision allowing lapsed
childhood sexual abuse claims to be brought within one
year of January 1, 2003 - which was at issue in Shirk,
arguably the court could apply its same reasoning to any
childhood sexual abuse claim brought against a public
entity under Section 340.1, effectively nullifying
delayed discovery claims against a responsible public
entity by adults suffering severe emotional and
psychological trauma as a result of childhood sexual
abuse. Supporters assert that SB 1339 is vitally needed
to protect and restore the rights of adults suffering
adult trauma due to childhood sexual abuse.
3. Numerous actions are exempted from the six-month claim
presentation requirements; the interests of justice and
fairness favor excepting childhood sexual abuse actions
Government Code Section 905 exempts from the Act and its
claim presentation requirements 12 different types of
claims running the gamut from claims relating to taxes,
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fees, and assessments, claims relating to workers'
compensation, claims by the state, a state agency, a
local public entity, or a judicial branch entity, to
claims related to unemployment insurance. For each of
the exempted claim types, some other code section sets
forth an applicable statute of limitations for the
particular claim. The same would be true here; CCP
Section 340.1 sets forth timeframes within which civil
actions based upon childhood sexual abuse must be
brought.
In addition, the author and supporters assert that
childhood sexual abuse claims especially should be
exempted from government tort claim requirements because
more often than not the emotional and psychological
injuries from the abuse do not manifest themselves until
well into adulthood.
The Survivor Network of those Abused by Priests writes:
Child sexual abuse is a hidden but significant problem
in every community in America, including California.
Experts estimate that one in four girls and one in six
boys will be sexually abused before their 18th
birthday. Less than one in ten will tell. ? [SB
1399] will allow victims who couldn't speak up sooner
to do so later. It will make it harder for predators
and their employers to hide evidence, conceal crimes,
intimidate victims, threaten witnesses, and "run out
the clock" on child sex crimes.
4. SB 1339 would apply prospectively to childhood sexual
abuse actions against local public entities
This bill would amend GC Section 905, which enumerates
those claims against local public entities that are
exempted from the Act. The bill would apply
prospectively to CCP 340.1 actions brought on or after
the bill is enacted. Local public entities include
counties, cities, districts, public authorities, public
agencies, and any other political subdivision or public
corporation in the State, but does not include the State.
(GC Section 900.4.) Thus, SB 1339, if enacted, would
apply to such public entities as school districts.
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Support: CA Coalition Against Sexual Assault; Consumer
Attorneys of CA; Survivors Network of Those Abused
by Priests; American Federation of State, County and
Municipal Employees, AFL-CIO
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: SB 1779 (Burton, Chapter 149,
Statutes of 2002) (CCP Section 340.1; see
Background)
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