Metropolitan News-Enterprise


Tuesday, August 21, 2007


Page 1


Molestation Claims Against Public Entity Not Revived


By a MetNews Staff Writer


A statutory provision that revived causes of action for childhood sexual molestation that would otherwise have been barred by expiration of the statute of limitations does not apply if the defendant is a public entity shielded by the claims statute, a divided state Supreme Court ruled yesterday.

In a 6-1 decision, the justices overruled the Fourth District Court of Appeal’s Div. One and affirmed a judgment in favor of the Vista Unified School District. San Diego Superior Court Judge Charles Wickersham had ruled that Linda Shirk, who was 15 years old when she was allegedly molested by a teacher 20 years before filing suit, had no case against the district because she had not presented the district with notice of her claim during the applicable period, which expired in 1979.

.Shirk contended that teacher Jeffrey Jones began flirting with her and that by 1978, their relationship was sexual.

Shirk said the two had their last sexual encounter in 1979. In the following months, she never informed the school, nor filed charges regarding the molestation.

In 2001, when Shirk’s daughter became a student in the same district, she began to run into Jones at school functions. Saying that she became  “very upset,” Shirk filed a report at the sheriff’s office and secretly recorded a conversation with Jones, where he admitted to the relationship. 

In 2003, a licensed mental health practitioner interviewed Shirk and determined she was suffering psychological injury from her sexual abuse by Jones. Consequently, Shirk sued both Jones and the school district. 

As to the district, Shirk alleged negligence and entered the date of the act complained of as “Sept. 12, 2003.” The school district demurred, asserting that the negligence causes of action were barred by her belated claim presentation.

Wickersham sustained the demurrer, rejecting the contention that under Code of Civil Procedure Sec. 340.1, the statute of limitations was tolled until she discovered her psychological injury in 2003. The Court of Appeal agreed with Shirk, but Justice Joyce L. Kennard, writing for the court, said that any claim relating to injury to a person must be presented to the government entity no later than six months after the cause of action accrues, and “accrual of the cause of action for purposes of the government claims statute is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants.”

Further, “the deadline for filing a lawsuit against a public entity, as set out in the government claims statute, is a true statute of limitations defining the time in which, after a claim presented to the government has been rejected or deemed rejected, the plaintiff must file a complaint alleging a cause of action based on the facts set out in the denied claim,” Kennard said.

 The court found that Shirk’s claim was not revived by Code of Civil Procedure Sec. 340.1(c), because she failed to present a claim to the school district at the time of her molestation by Jones.

Kennard noted that under the statute, an otherwise time-barred claim may be brought only if it is barred “solely” by the expiration of the statute of limitations. In Shirk’s case, the justice explained, the claim was not barred solely by the statute of limitations, but also by the claims statute. 

“Section 340.1 did not reflect the Legislature’s intent ‘to excuse victims of childhood sexual abuse’ from complying with the government claims statute when suing a public entity defendant,” she wrote. 

Justice Kathryn Werdegar dissented, finding that the revival statute, read together with the delayed discovery statute, revived Shirk’s claim. Werdegar said  revival occurred  “when she ‘discover[ed] or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse.’”

Werdegar reasoned:

“The applicable statute of limitations, which in this case is the delayed discovery statute, defines accrual for purposes of the claim presentation statute.” Thus, plaintiff’s claim accrued once in 1979, when all the elements of her cause of action first existed, and once again in 2003, when her delayed discovery of psychological injury as an adult brought her claim within the revival statute.”

The case is People v. Shirk, 07 S.O.S. 5131.


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