Judge: Melvin D. Sandvig, Case: 20STCV44178, Date: 2022-08-10 Tentative Ruling

Case Number: 20STCV44178    Hearing Date: August 10, 2022    Dept: F47

Dept. F47

Date: 8/10/22

Case #20STCV44178

 

SUMMARY JUDGMENT/ADJUDICATION

 

Motion filed on 6/1/22.

 

MOVING PARTY: Defendants Saint Nicholas Greek Orthodox Church, Greek Orthodox Metropolis of San Francisco and Greek Orthodox Archdiocese of America

RESPONDING PARTY: Plaintiff Timothy Mullen

NOTICE: ok

 

RELIEF REQUESTED: An order granting summary judgment/adjudication of issues on Plaintiff Timothy Mullen’s Second Amended Complaint.

 

RULING: The motion is denied.

 

FACTUAL SUMMARY & RELEVANT PROCEDURAL HISTORY

 

This action arises out of Plaintiff Timothy Mullen’s (Plaintiff) claim that he was sexually assaulted by Stanley Adamakis (now deceased), a Greek Orthodox priest, when Plaintiff was approximately 15 years old in or about 1982.  On 11/18/20, Plaintiff filed this action.  On 4/1/21, pursuant to a stipulation and order, Plaintiff filed the operative Second Amended Complaint which contains the following causes of action: (1) Negligence (Against Saint Nicholas Greek Orthodox Church); (2) Negligence (Against Greek Orthodox Metropolis of San Francisco); (3) Negligence (Against Greek Orthodox Archdiocese of America); (4) Negligent Hiring, Retention and Supervision (Against Saint Nicholas Greek Orthodox Church); (5) Negligent Hiring, Retention and Supervision (Against Greek Orthodox Metropolis of San Francisco) and (6) Negligent Hiring, Retention and Supervision (Against Greek Orthodox Archdiocese of America).

 

On 6/29/21, this Court overruled Defendants Saint Nicholas Greek Orthodox Church, Greek Orthodox Metropolis of San Francisco and Greek Orthodox Archdiocese of America’s (collectively, Defendants) demurrer to the entire Second Amended Complaint made on the ground that each cause of action fails to plead sufficient facts to constitute a cause of action.  CCP 430.10(e).  Specifically, Defendants contended that the statute of limitations applicable to Plaintiff’s claims has expired, and the attempted revival of expired claims provided for in CCP 340.1(r) and (q) as amended by Assembly Bill 218 (AB 218), is unconstitutional under the Due Process clauses of California Constitution, Art. 1 §7(a), and the United States Constitution, 14th Amendment, Art 1.  (See 6/29/21 Minute Order).  The Court also denied Defendants’ motion to strike certain portions of the Second Amended Complaint made on the ground that they were not drawn in conformity with the laws of California and the laws of the United States.  Id. 

 

On or about 8/26/21, Defendants filed a Petition for Writ of Mandate regarding the demurrer and motion to strike which was denied. 

 

On 6/1/22, Defendants filed the instant motion (served on 5/25/22) which seeks an order granting summary judgment/adjudication of issues on Plaintiff Timothy Mullen’s Second Amended Complaint.  Plaintiff has opposed the motion.

 

PROCEDURAL ISSUES

 

The notice of motion does not specifically set forth the alternative issue for summary adjudication.  See CRC 3.1350(b).  Rather, Defendants state that they “will bring their motion for summary judgment/adjudication of issues on the second amended complaint filed by Plaintiff Timothy Mullen (“Plaintiff”), in this case 20STCV44178.”  (Notice of Motion, p.2:3-4).  Defendants go on to state that the motion is made “on the grounds that there is no triable issue of material fact that SB 1779 is a statute of repose that extinguished Plaintiff’s claims against Defendants at the end of 2003, or in the alternative that the treble damages provision in Code of Civil Procedure § 340.1(b) does not apply retroactively to Plaintiff’s claims.” (emphasis added)  (Id., p.2:5-8). 

 

Presumably, Defendants seek to alternatively adjudicate Plaintiff’s claim for treble damages under CCP 340.1(b), if their request for summary judgment is denied.  CCP 437c(f)(1) provides:  

 

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (emphasis added)

 

As such, it does not appear that Plaintiff’s claim for treble damages under CCP 340.1(b) is a proper issue for summary adjudication. 

 

Even if the alternative issue for summary adjudication had been properly set forth in the notice of motion and could be separately adjudicated, the request would be denied for the reasons set forth below. 

 

ANALYSIS

 

Defendants’ Request for Judicial Notice (RJN) is granted. 

 

CCP 340.1 provides, in relevant part:

 

(a) In an action for recovery of damages suffered as a result of childhood sexual assault, the time for commencement of the action shall be within 22 years of the date the plaintiff attains the age of majority or within five 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 assault, whichever period expires later, for any of the following actions:

...

(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

(3) An action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.

 

(b)(1) In an action described in subdivision (a), a person who is sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.

(2) For purposes of this subdivision, a “cover up” is a concerted effort to hide evidence relating to childhood sexual assault.

...

(q) Notwithstanding any other provision of law, any claim for damages described in paragraphs (1) through (3), inclusive, of subdivision (a) that has not been litigated to finality and that would otherwise be barred as of January 1, 2020, because the applicable statute of limitations, claim presentation deadline, or any other time limit had expired, is revived, and these claims may be commenced within three years of January 1, 2020. A plaintiff shall have the later of the three-year time period under this subdivision or the time period under subdivision (a) as amended by the act that added this subdivision.

 

(r) The changes made to the time period under subdivision (a) as amended by the act that amended this subdivision in 2019 apply to and revive any action commenced on or after the date of enactment of that act, and to any action filed before the date of enactment, and still pending on that date, including any action or causes of action that would have been barred by the laws in effect before the date of enactment.

 

SENATE BILL (SB) 1779

 

It has been held that:

 

A statute of repose is “a subspecies” of the statute of limitations. “A statute of repose runs from a fixed date readily determinable by the defendant, such as, for example, the date of ‘sale,’ ‘transaction,’ ‘accident,’ or ‘occurrence,’ rather than a date determined by the personal circumstances of the plaintiff, such as, for example, the date of ‘discovery’ or ‘damage.’ Using a fixed date easily determined by the defendant allows for ‘repose’ from the cause of action and serves the need for finality in certain financial and professional dealings.” (Caviness v. Derand Resources Corp. (4th. Cir.1993) 983 F.2d 1295, 1300, fn. 7.)

 

Sagehorn (2006) 141 CA4th 452, 460.

 

“Ordinarily, a statute of limitations creates ‘a time limit for suing in a civil case, based on the date when the claim accrued’ while a statute of repose ‘puts an outer limit on the right to bring a civil action.  That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant.’”  (internal quotation, citation omitted).  Moyle (2017) 263 F.Supp.3d 999, 1011 citing CTS Corp. 134 S.Ct. 2175, 2182; See also Sagehorn, supra at 459. 

 

Usually, language such as “in no event” or “except that” is used in statutes of repose to set forth the outer limit for bringing a claim from the date of the relevant transaction or occurrence.  See e.g., Government Code 12654(a) (in False Claims Act, setting six-year statute of limitation and a  three-year discovery rule, along with a repose clause stating, “but in no event more than 10 years  after the date on which the violation is committed”); Hensel Phelps Construction Co. (2020) 44 CA 5th 595, 608 (in construction defect case, construing CCP 337.15 as statute of repose, which provides that “no action may be brought” more than 10 years after “substantial completion”).

 

SB 1779 amended CCP 340.1(c) by creating a statutory window to bring revived claims.  SB 1779 provides, in relevant part:

 

(c) Notwithstanding any other provision of law, any claim for damages described in paragraph (2) or (3) of subdivision (a) that is permitted to be filed pursuant to paragraph (2) of subdivision (b) that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired, is revived, and, in that case, a cause of action may be commenced within one year of January 1, 2003.  …

 

(See Defendants’ Statement of Evidence, Ex.3).

 

SB 1779 does not contain the typical language of a statute of repose.  Additionally, nothing in  Quarry (2012) 53 C4th 945, the case Defendants rely on to support their conclusion that SB 1779 is a statute of repose, precludes the Legislature from enacting subsequent legislation that allows victims of childhood sexual abuse another opportunity to bring their claims.  The Quarry Court held:

 

our analysis in the present case does not depend upon identifying any vested rights on the part of defendant; indeed, we have acknowledged that ordinarily the Legislature has authority to enlarge limitations periods even as to lapsed claims, as long as it does so expressly or otherwise makes its intent unmistakably clear.  Id. at 980.

 

Defendants have not shown that AB 218’s revival of previously barred claims, such as Plaintiff’s, violates California and/or United States Supreme Court decisions regarding due process protection.  As previously noted in overruling Defendants’ demurrer to the Second Amended Complaint, the analysis of a due process claim begins with a determination of whether the defendant held a protected liberty or property interest of which the defendant has been deprived.  See Hellinger (2001) 91 CA4th 1049, 1061 citing Campbell (1885) 115 U.S. 620, 628–629; Chase Securities Corp. (1945) 325 U.S. 304, 314; Liebig (1989) 209 CA3d 828, 830; Lent (1995) 40 CA4th 1177, 1183.  The Supreme Court has determined that “‘in a civil case, there is no constitutional right of repose. [Citations.]’”  (emphasis added) Hellinger, supra.  There is no vested right in a statute of limitations defense until entry of a final judgment.  See Plaut (1995) 514 U.S. 211, 229; Liebig, supra at 835.  Multiple California cases have held that the legislature’s revival of previously time-barred claims in the context of childhood sexual abuse cases under CCP 340.1 is constitutionally permissible.  See Liebig, supra; Lent, supra at 1184; Tietge (1997) 55 CA4th 382, 386; Deutsch (2008) 164 CA4th 748, 759-762; Coats (2020) 46 CA5th 415, 427-431; Safechuck (2020) 43 CA5th 1094, 1099-1100.

 

Even if Defendants had a vested right in the statute of limitations defense, “such a right yields to important state interests, without any violation of due process.”  20th Century Ins. Co. (2001) 90 CA4th 1247, 1273; See also Landgraf (1994) 511 U.S. 244, 267-268; Marriage of Buol (1985) 39 C3d 751, 760-761; Liebig, supra at 834-835.  Here, allowing childhood victims of sexual abuse to seek redress for their injuries advances an important state interest such that no due process violation should be deemed to result. 

 

Based on the foregoing, the Court does not find that SB 1779 created a statute of repose that extinguished and forever barred Plaintiff’s claims at the end of 2003.

 

CCP 340.1(b) 

 

Unless a statute contains an express retroactivity provision, it will not be applied retroactively unless it is clear from extrinsic sources that the Legislature intended a retroactive application.  See Myers (2002) 28 C4th 828, 841, 844.

 

AB 218 amended CCP 340.1 as of 1/1/20.  The amendment revived actions for damages due to childhood sexual assault (as described in CCP 340.1(a)) previously barred by the statute of limitations prior to 1/1/20.  CCP 340.1(q).  The amendment also added subdivision (b)(1), which  provides that in an action described in subsection (a), a plaintiff who proves that the sexual assault was the result of a cover up may recover up to treble damages, unless prohibited by another law.  CCP 340.1(b)(1). 

 

Here, CCP 340.1(q) and (r) (which revive previously time-barred claims for 3 years from 1/1/20) refer to CCP 340.1(a) and CCP 340.1(b) refers to CCP 340.1(a).  Additionally, the legislatively history shows a retroactive intent. 

 

In an effort to address the lifetime damage that childhood sexual abuse causes its victims, AB 218 expands the statutes of limitations to permit access to courts by such victims and to revive previously time-barred claims for a period of three years and permit recovery of up to treble damages for those victims whose abuse could have been prevented had the defendant not engaged in a cover up to hide evidence relating to childhood sexual assault.  See CCP 340.1(a), (b), (q), (r); (Woodhall Decl. ¶¶3-4 (referring to exhibits attached to Woodhall Dec. filed 6/9/21, but actually filed 6/11/21), Ex.1, p.3, p.7, p.19; Ex.2, p.8, p.14).  As such, the main objective of AB 218 was not punitive, but to provide a path for victims of abuse to seek redress to expose cover ups to prevent future abuse. 

 

AB 218 does not violate the prohibitions on ex post facto laws because it does not involve a criminal statute.  See 21st Century Ins. Co. (2005) 127 CA4th 1351, 1358; Stogner (2003) 539 U.S. 607, 609; Peterson (1982) 31 C3d 147, 161.  The revival of common law claims asserting punitive damages does not violate the ex post facto clause.  Roman Catholic Bishop of Oakland (2005) 128 CA4th 1155, 1162-1169; 21st Century, supra at 1366.  Under CCP 340.1, the cover up of a victim’s sexual assault does not trigger treble damages.  Rather, the victim’s assault must have resulted from a prior cover up of childhood sexual assault.  See CCP 340.1(b).  If the treble damages were solely intended to punish those who cover up childhood sexual assault, seemingly the Legislature would have made them available where a plaintiff establishes a cover up of their own sexual assault, not that their sexual assault resulted from a cover up of a prior assault.  As such, Defendants have not shown that CCP 340.1(b) is penal in nature sufficient to override legislative intent and transform a civil remedy into a criminal penalty.  See 21st Century, supra at 1358, 1362. 

 

Based on the foregoing, the Court finds that CCP 340.1(b)(1) may be applied retroactively to Plaintiff’s claims.