Metropolitan News-Enterprise


Monday, November 9, 2009


Page 1


Court Revives Victims’ Claims Against Wife of Molester


By SHERRI M. OKAMOTO, Staff Writer


The First District Court of Appeal on Friday revived the claims of two women against the wife of the man convicted of molesting them when they were children for having made them available to her husband by relinquishing her babysitting obligations to him.

Div. Three concluded that Dawna Joseph and Nicole McGowan’s negligence claims were barred by the statute of limitations but that their causes of action for intentional misconduct were not. Alameda Superior Court Judge Kenneth Mark Burr therefore erred in sustaining Carolyn Johnson’s demurrer as to the later allegations, the panel said.

In June 2006, Joseph and McGowan filed a complaint against Johnson and her husband, Albert Caesar, for personal injury arising out of Caesar’s sexual molestation of them when they were minors—a crime for which Caesar had been criminally convicted.

When Joseph and McGowan were minors, they claimed that Johnson, a relative, would provide babysitting services for them in exchange for like services from their mother. Joseph and McGowan contended that Johnson had thereby assumed a duty to provide each of them “with an environment reasonably safe and secure for her health and well being” and that she had represented to their mother that it was “perfectly safe” for them to be around Caesar.

They further alleged that Johnson delegated the babysitting duties to Caesar and that she “readily could have controlled [Caesar’s] conduct” by not allowing him to be alone with them while babysitting.

By ceding her babysitting duties to Caesar, Joseph and McGowan argued that Johnson negligently breached the duty of care she owned them and “intentionally provided and/or made [them] available to [Caesar] for the purpose of lewd and/or lascivious conduct as defined in Penal Code section 288.”

Joseph and McGowan also swore their complaint was filed within three years of when they reasonably discovered psychological injury and/or illness caused by the sexual abuse.

Under Code of Civil Procedure Sec. 340.1, the limitations period for an action seeking damages suffered as a result of childhood sexual abuse must be commenced within three years of discovering that injury occurred as the result of the abuse, or within eight years after the plaintiff attains the age of majority, whichever is later.

This limitations provision applies whether the defendant is the perpetrator of the abuse, or a third party whose liability stems from a negligent or intentional act which was the legal cause of the abuse that resulted in the injury.

In the case of a third party defendant, Sec. 340.1(a)(2) requires that an action be commenced before the plaintiff’s 26th birthday unless—pursuant to subsection (b)(2)—the third party defendant knew or had reason to know 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” in which case the action must be commenced within three years of discovering the injury was caused by the abuse.

Burr sustained Johnson’s demurrer to the third amended complaint without leave to amend on the ground that Joseph and McGowan’s claims were time-barred and dismissed the case.

Writing for the appellate court, Justice Stuart R. Pollak explained that Joseph and McGowan’s causes of action for negligence failed for lack of factual allegations demonstrating the requisite relationship between Johnson and Caesar that would provide Johnson with control over Caesar’s conduct.

The only allegation with respect to control was that Johnson could have controlled Caesar’s conduct “by not allowing him to be alone with [plaintiffs] while babysitting,” Pollak said, positing that the fact that Johnson could have prohibited her husband from being alone with the plaintiffs did not mean that she had the right to control his behavior.

As Joseph and McGowan’s allegation that Johnson’s delegation of babysitting responsibilities to Caesar was negligent brought their claims under Sec. 340.1(a)(2), and they did not plead an agency or other relationship that came within subdivision (b)(2), Pollak concluded that the action was not timely.

However, Pollak said that the intentional misconduct claims were still viable, explaining that under Sec. 340.1(a)(2), claims “against [a] person for committing an act of childhood sexual abuse” are timely if brought within three years of discovery.

By alleging that Johnson intentionally made them available to Caesar for the purpose of a lewd or lascivious act, Pollak reasoned that Joseph and McGowan alleged she had engaged in conduct proscribed by Penal Code Sec. 266j.

Because a person who commits an act that would violate Penal Code Sec. 266j commits childhood sexual abuse for purposes of Sec. 340.1(a)(1), Pollak explained that the limitations period of three years from discovery applied to Joseph and McGowan’s intentional misconduct claims and they were thus not time-barred.

Justices Peter J. Siggins and Martin J. Jenkins joined Pollak in his decision.

The case is Joseph v. Johnson, 09 S.O.S. 6375.


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