Judge Donald F. Gaffney, Case M.S v. Sellars 2023-08-16 Tentative Ruling

Judge: Donald F. Gaffney, Case: M.S v. Sellars, Date: 2023-08-16 Tentative Ruling

TENTATIVE RULING:

Demurrer to First Amended Complaint

Defendant John Sellars demurs to the First Amended Complaint filed by Plaintiff M.S. For the following reasons, the demurrer is OVERRULED.

Actions for damages for childhood sexual assault may be brought within 22 years after the plaintiff becomes an adult, or five years after plaintiff discovers (or reasonably should have discovered) that an injury or illness suffered as an adult was caused by childhood sexual assault, whichever is later. (Code Civ. Proc., § 340.1, subd. (a); see Safechuck v. MJJ Productions, Inc. (2020) 43 Cal.App.5th 1094, 1100.)

These time limits apply to any action pending as of January 1, 2020, and any claim that had not been litigated before January 1, 2020, because the applicable statute or claim presentation requirement had expired is revived, and those claims must be brought within three years of January 1, 2020. (Code Civ. Proc., § 340.1, subds. (q), (r); Safechuck v. MJJ Productions, Inc., supra, 43 Cal.App.5th at 1100.)

Special procedures are required in actions by a plaintiff who is 40 or older for childhood sexual assault. (Code Civ. Proc., § 340.1, subd. (f).) The plaintiff’s attorney and a licensed mental health practitioner must file certificates showing there is reason to believe plaintiff suffered childhood sexual abuse. (Id. at subd. (h).) The trial court reviews the certificates of merit in camera to determine if there is a “reasonable and meritorious cause for the filing of the action” against each defendant. (Id. at subd. (j).) If the court makes such a finding, the duty to serve that defendant arises. (Ibid.) Additionally, a plaintiff 40 years of age or older must name a defendant by “Doe” designation until the plaintiff’s attorney obtains permission to amend the complaint to substitute the name of the defendant for the fictitious designation name by filing an application and executing a certificate of corroborative fact as to the charging allegations against that defendant. (Code Civ. Proc., § 340.1, subds. (m), (n)(1), (o).) A failure to comply with these requirements is grounds for demurrer or motion to strike the complaint and may constitute unprofessional conduct subject to disciplinary action against plaintiff’s attorney. (Id. at subds. (k), (1).)

In Jackson v. Doe (2011) 192 Cal.App.4th 742, the Court of Appeal advised that “[a] demurrer may be sustained without leave to amend where the plaintiff fails to file the certificates of merit in accordance with section 340.1, subdivision (h) before the statute of limitations expires or within 60 days of filing the complaint.” (Id. at 752-53.) Defendant contends Plaintiff failed to timely file the certificates of merit in this action.

In May 2020, the Judicial Council of California promulgated emergency rules because of the COVID-19 pandemic. Emergency Rule 9 states: “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020” and “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020.” (Id.) By its terms, Emergency Rule 9 tolled the statute of limitations for civil causes of action (with limitations periods longer than 180 days) for 179 additional days (the number of days from April 6, 2020, through October 1, 2020).

Plaintiff’s claims have a statute of limitations that exceed 180 days. (See Code Civ. Proc., § 340.1, subd. (a).) The relevant tolling period occurred after Plaintiff’s claims accrued but before the limitations period expired on December 31, 2022. Because Emergency Rule 9 applies, Plaintiff had until June 28, 2023 (December 31, 2022, plus 179 days) to file the certificates of merit. Plaintiff’s certificates of merit were deemed filed as of February 21, 2023, before the expiration of the statute of limitations. (See ROA No. 19.) The demurrer is overruled.

Plaintiff to give notice.