Thursday, February 10, 2011
C.A. Takes Strict View of Time Limit to Sue for Sexual Molestation
By a MetNews Staff Writer
A trial court cannot grant relief from dismissal where a plaintiff claiming to have been molested during childhood fails to file a timely certificate of merit signed by a mental health professional, the First District Court of Appeal ruled yesterday.
The failure to comply with Code of Civil Procedure Sec. 340.1 is jurisdictional, Presiding Justice Barbara J.R. Johnson wrote for Div. Five.
The ruling affirms Napa Superior Court Judge Raymond Guadagni’s order dismissing Olinda Jackson’s suit against a man accused of molesting her and children. The court record was sealed, and the defendant was identified in the opinion as John Doe.
Jackson sued in January 2009, claiming the defendant molested her on multiple occasions in 1971 and throughout her childhood. She alleged that she suffered mental injury as a result, but that she did not realize until January 2006, less than three years before she sued, that the injury was related to the molestation.
Doe demurred based on Sec. 340.1(h)(3), which requires that an action claiming childhood sexual abuse be filed before the plaintiff turns 26 years of age, or within three years of discovering that the plaintiff’s injuries were caused by such abuse, whichever is later.
If the plaintiff is 26 years of age or older, however, the complaint must be accompanied by a mental health professional’s declaration, and that of the plaintiff’s attorney, certifying that the alleged abuse likely occurred and is the likely cause of psychological or emotional injury. The certificates must be filed within the limitations period unless the plaintiff’s attorney files a declaration explaining why they were not timely filed.
If the attorney’s explanation is adequate, the certificates of merit may be filed up to 60 days after the complaint is filed.
Jackson, who was representing herself at the time, failed to respond to the defendant’s demurrer. Two days before the hearing, however, she retained a lawyer, who asked for additional time.
The judge concluded there was no reason for delay, sustained the demurrer, and invited counsel to seek relief under Code of Civil Procedure Sec. 473. The attorney did so, but the judge concluded that the action was time-barred and denied the motion.
Jones, in her opinion for the appellate court, said the trial judge was correct.
Under the statute, she explained, the certificates of merit are “an aspect of the complaint” and the failure to timely file them leaves the court without jurisdiction over the claim. A number of cases, she noted, hold that a plaintiff “cannot rely on section 473 to rescue her time-barred claim.”
The case is Jackson v. DoeI, A128065.
Copyright 2011, Metropolitan News Company