Metropolitan News-Enterprise


Thursday, June 25, 2009


Page 1


S.C. to Hear Delayed-Discovery Claim in Molestation Case




The California Supreme Court agreed to decide yesterday whether a plaintiff who failed to take advantage of a statute that revived certain claims related to child molestation during a now-expired one-year period may instead use the delayed-discovery rule to file such a claim.

The justices, at their weekly conference in San Francisco, agreed to review a Third District Court of Appeal ruling that affirmed a San Joaquin Superior Court judge’s dismissal of a suit by “John K.J. Doe” against the Stockton Diocese of the Roman Catholic church.

The case is K.J. v. The Roman Catholic Bishop of Stockton (2009)  172 Cal.App.4th 1388.

The plaintiff alleged in his complaint, filed in 2007, that he was an altar boy at a local church; that he was molested by a priest there between the ages of seven and 11, ending in 1971;  that the bishop of Stockton knew that the priest was a serial molester and actively helped cover up that fact; and that he had “immediately repressed” all memories of the abuse, although he began to remember in 2004.

The diocese demurred. It argued that under the law then in effect, the plaintiff’s claims were time barred after he turned 19 years of age, which would have been in 1978 or 1979. Legislation enacted in 1990 extended the limitations period, allowing a victim who discovered, after reaching adulthood, that he or she had been psychologically injured by childhood abuse to sue up until the age of 26 or within three years of making that discovery, whichever was the shorter period.

Not having been filed within the time then provided by law, the diocese contended, the only way John K.J. Doe’s suit would have been timely was if it had been brought during 2003. Legislation enacted in 2002 provided that if an employer knew or should have known that an employee had molested children and did not take steps to prevent it from recurring, suit against the employer could be brought during the year 2003, regardless of how long ago the molestation occurred.

Another provision of the 2002 law eliminated the age 26 cap in suits against an employer with actual or constructive knowledge who failed to prevent an employee from continuing to molest children, so that such actions are timely if filed within three years of the discovery of psychological injury caused by the abuse. Counsel for John K.J. Doe argued that this latter provision makes the action filed in 2007 timely, since the plaintiff became aware he had suffered psychological injury less than three years before he sued.

Superior Court Judge Elizabeth Humphrey sided with the defense, reasoning that the one-year revival is the only part of the 2002 law allowing a plaintiff over the age of 26 to sue a non-perpetrator for molestation that occurred before that year.

Justice M. Kathleen Butz, writing for the Court of Appeal, said the trial judge was correct. She cited the language and history of the 2002 legislation, including a legislative summary indicating that the law was intended to provide for “[r]etroactive application and revival of lawsuits,” to “create a one-year window” to sue certain defendants who would otherwise avoid liability because of the prior statute of limitations, and to have “[p]rospective application” allowing adults who discover that they have been psychologically injured by childhood molestation to sue within three years of making that discovery.

That summary and other legislative materials “support our conclusion that while the Legislature intended to lift the age 26 cap prospectively as a prophylactic measure, it sought to revive lapsed actions only for a limited one-year period,” the justice said.

Butz also rejected the argument that the common-law delayed discovery doctrine rendered the action timely, regardless of the statute.

Legislation enacted in 1994, she noted, eliminated a provision allowing courts to apply equitable delayed discovery exceptions to the statute of limitations regarding child molestation. The elimination of the language, she said, cannot be viewed “as a mere housekeeping measure” and reflects the Legislature’s intent to declare “an end to employment of common law delayed discovery theories that were not expressly set forth in the statute.”


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