Metropolitan News-Enterprise


Friday, June 17, 2016


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Justices to Decide Whether Delayed Accrual For Sex Abuse Cases Applies to Government


By a MetNews Staff Writer


The state Supreme Court has agreed to decide whether the delayed discovery rule for suits regarding childhood sexual abuse applies to government tort claims.

The justices, at their weekly conference in San Francisco Wednesday, granted review in Rubenstein v. Doe No. 1 (2016) 245 Cal. App. 4th 1037. The Fourth District Court of Appeal, Div. One, held that the plaintiff could sue her former school district for molestation that she recovered memories of at the age of 34.

Latrice Rubenstein claims she was sexually molested by her cross-country and track coach while attending high school in 1993. She presented a claim to the school district in 2012, and it was rejected.

An Imperial Superior Court judge granted her petition for relief from the claims-presentation requirement, but the case was subsequently dismissed on various grounds, including failure to file a proper complaint within 30 days of the granting of her petition for relief.

The judge said the complaint was deficient for failure to attach a mental health practitioner’s certificate of merit. The plaintiff argued that timely certificates were attached to an earlier complaint that was voluntarily dismissed and to the petition for relief, and that she did not need to attach them again.

The Court of Appeal held that delayed discovery applies to claims against public entities, that the plaintiff adequately pled delayed discovery, and that the plaintiff was not required to reattach the certificates of merit.

Justice James McIntyre, writing for the Court of Appeal, said the claim was timely under Code of Civil Procedure §340.1 and that delayed accrual not only delays the time in which to sue, it delays the six-month period for filing a government claim.

The statute provides that an action for damages suffered as a result of childhood sexual abuse must be filed “within eight years of the date the plaintiff attains the age of majority 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.”  

   The justice wrote:

   “Rubenstein alleged that coach, an employee of the entity defendant, sexually molested her around 1993 when she was a high school student. Defendant and its employees owed her a duty of care and defendant is vicariously liable for the negligence of its employees who knew or should have known about the coach’s unlawful sexual misconduct. Defendant, through its employees, knew or should have known that coach had previously engaged in unlawful sexual conduct with minors, but nonetheless hired coach to work directly with minors while failing to protect Rubenstein from this foreseeable danger. In early 2012, when Rubenstein was about 34 years old, the latent memories of the sexual abuse resurfaced. These allegations of ultimate fact are sufficient to invoke the delayed discovery rule of accrual.”

 He went on to say:

 “The claim she presented to defendant in June 2012, within six months after she allegedly realized that coach had sexually molested her, is timely for pleading purposes. To escape this result, defendant asserts Rubenstein cannot rely on delayed discovery because she was 15 or 16 when the alleged molestation occurred and cannot legitimately assert she was unaware of the wrongfulness of her coach’s conduct when it occurred. For purposes of demurrer, however, the allegations of the complaint must be taken as true, no matter how unlikely or improbable.”


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