Judge Stephen P. Pfahler, Case 21STCV09278 2022-07-27 Tentative Ruling

In 1981-1982, Plaintiff R.W. was a 14-15 year old member of the Greek Orthodox Church, when was allegedly sexually assaulted by Father Stanley Adamakis, an ordained priest assigned to a location in Northridge. Plaintiff alleges the church organization was aware of Father Adamakis’s pedophile activities.

On March 9, 2021, Plaintiff filed a complaint for Negligence (three causes of action) and Negligent Supervision, Negligent Hiring and/or Retention (three causes of action). On April 7, 2021, Plaintiff filed a first amended complaint Negligence (three causes of action against three different entities within the Greek Orthodox organization) and Negligent Supervision, Negligent Hiring and/or Retention (three causes of action against three different entities within the Greek Orthodox organization). On April 7, 2021, Plaintiff filed a first amended complaint Negligence (three causes of action against three different entities within the Greek Orthodox organization) and three causes of action for Negligent Supervision, Negligent Hiring and Retention.

On June 22, 2021, the action was transferred from Department 31 to Department 47. On July 2, 2021, Defendants filed a 170.6 challenge to Department 47, thereby leading to reassignment to Department 49. On September 27, 2021, the court overruled the demurrer to the complaint and denied the motion to strike.[1] Defendants answered on October 6, 2021.

The court takes judicial notice of the filing of the pleadings, but not the content of the pleadings for the truth of the matter asserted.

Defendants move for summary judgment, and alternatively summary adjudication, on grounds that the entire action is barred by the statute of limitations. Defendants maintain the statute of limitations absolutely lapsed in 2003, and the treble damages provision in the statute is not retroactively applicable. Plaintiff in opposition contends the subject motion constitutes a re-argument of the previously overruled demurrer and denied motion to strike. The statute of limitations remains revived, and is not barred by any statute of repose. Plaintiff also challenges Defendants’ interpretation of the law regarding the challenge the action via the treble damages recovery sought.

Defendants in reply reiterates the argument regarding SB 1779 constituting a statute of repose for the subject claim, and challenges any revival of the statute under AB 218. Defendants challenge Plaintiff’s reliance on the legislative history in arguing for “retroactive” application of the statute in regards to treble damages as well.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

While the instant motion, like the demurrer and motion strike, again fundamentally challenges the statute of limitations, the court finds no procedural bar to the subject motion due to the September 27, 2021 ruling on the demurrer and motion to strike. The court therefore considers the motion on the merits.

As with the prior demurrer and motion to strike, the parties agree that Code of Civil Procedure section 340.1 governs the subject action. Defendants rely on the language of Senate Bill 1779 for the position that the subject legislation categorically created a statute of repose effectively terminating any claims filed after expiration of the 2003 defined filing deadline for persons similarly situated to Plaintiff.

“Existing law requires that an action for recovery of damages suffered as a result of childhood sexual abuse, as defined, be commenced within 8 years of the date the plaintiff attains the age of majority or within 3 years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual abuse, whichever occurs later, and provides that certain of those actions may not be commenced on or after the plaintiff's 26th birthday.

“This bill would provide that those actions may be commenced on or after the plaintiff's 26th birthday if the person or entity against whom the action is commenced knew, had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and implement reasonable safeguards, to avoid future acts of unlawful sexual conduct. The bill would revive a cause of action solely for those claims for a period of one year, except as specified.”

The bill led to the amendment of Code of Civil Procedure section 340.1, which stated in applicable part:

(a) In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be 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, for any of the following actions:

(1) An action against any person for committing an act of childhood sexual abuse.

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

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

(b) (1) No action described in paragraph (2) or (3) of subdivision (a) may be commenced on or after the plaintiff's 26th birthday.

(2) This subdivision does not apply if the person or entity knew or had reason to know, or was otherwise on notice, 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, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard.

(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. Nothing in this subdivision shall be construed to alter the applicable statute of limitations period of an action that is not time barred as of January 1, 2003.

The plain language of SB 1779 and the subsequent amendment of Code of Civil Procedure section 340.1 extended the time frame for the initiation of action for any all wrongful sexual conduct claims to a potential plaintiff’s 26^th birthday, and revived any claims for one year if the claim was previously barred in 2003. “Statutes of limitations require plaintiffs to pursue ‘diligent prosecution of known claims.’ (Citation). Statutes of limitations ‘promote justice by preventing surprises through [plaintiffs'] revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’ (Citation.) Statutes of repose also encourage plaintiffs to bring actions in a timely manner, and for many of the same reasons. But the rationale has a different emphasis. Statutes of repose effect a legislative judgment that a defendant should ‘be free from liability after the legislatively determined period of time.’ (Citations.)” (CTS Corp. v. Waldburger (2014) 573 U.S. 1, 8–9.) “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.’” (Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460.)

Plaintiff challenges the argument on grounds that SB 1779 only provided a revival of the statute of limitations rather than a statute of repose barring existing claims. Plaintiff makes this argument on the language of the bill itself and changes to the statute, which provides a revival window, thereby automatically undermining any finding of an absolute termination date. Plaintiff alternatively argues that nothing in SB 1779 prevented a future revival window.

In 2019, 17 years after SB 1779, the legislature passed Assembly Bill 218, which led to another amendment of section 340.1. The legislation states in part:

Existing law requires that an action for recovery of damages suffered as a result of childhood sexual abuse, as defined, be commenced within 8 years of the date the plaintiff attains the age of majority or within 3 years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual abuse, whichever occurs later, and provides that certain of those actions may not be commenced on or after the plaintiff's 26th birthday. Existing law also prohibits confidentiality provisions within a settlement agreement arising from a claim of childhood sexual abuse.

This bill would expand the definition of childhood sexual abuse, which would instead be referred to as childhood sexual assault. This bill would increase the time limit for commencing an action for recovery of damages suffered as a result of childhood sexual assault to 22 years from the date the plaintiff attains the age of majority or within 5 years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual assault, whichever is later. This bill would also provide for the recovery of up to treble damages against certain defendants in these actions, and would revive time-lapsed claims in certain circumstances.

Existing law, the Government Claims Act, generally requires the presentation of all claims for money or damages against local public entities. The Government Claims Act excludes from this requirement claims made for the recovery of damages suffered as a result of childhood sexual abuse, as defined, arising from conduct that occurred on or after January 1, 2009.

This bill would change that reference from childhood sexual abuse to childhood sexual assault, as defined, and it would remove the requirement that the conduct occurred on or after that specified date. The bill would also make a conforming change to the provision governing confidentiality provisions in childhood sexual abuse claims.

The revised and currently operative version of the Code of Civil Procedure now contains in 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:

(1) An action against any person for committing an act of childhood sexual assault.

(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.

(c) An action described in paragraph (2) or (3) of subdivision (a) shall not be commenced on or after the plaintiff’s 40th birthday unless the person or entity knew or had reason to know, or was otherwise on notice, of any misconduct that creates a risk of childhood sexual assault by an employee, volunteer, representative, or agent, or the person or entity failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard. Nothing in this subdivision shall be construed to constitute a substantive change in negligence law.

(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.

“‘[T]he interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts.’ (Citation.) When this court ‘finally and definitively’ interprets a statute, the Legislature does not have the power to then state that a later amendment merely declared existing law.” (Citation).) [¶] “However, ‘if the courts have not yet finally and conclusively interpreted a statute and are in the process of doing so, a declaration of a later Legislature as to what an earlier Legislature intended is entitled to consideration. [Citation.] But even then, ‘a legislative declaration of an existing statute's meaning’ is but a factor for a court to consider and ‘is neither binding nor conclusive in construing the statute.’ [Citation.]” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922.) “It has been established law for over a century that a legislature may revive a civil claim that is barred by the statute of limitations. The reason is that, in a civil case, there is no constitutional right of repose.” (Hellinger v. Farmers Group, Inc. (2001) 91 Cal.App.4th 1049, 1061.)

The court interprets the latest version statute as extending the filing date of any potential plaintiff from age 26 to 40 years old. The court also finds newly added subdivisions (q) and (r) revive any and all claims previously barred as of January 1, 2020 for persons not over 40 years of age. In other words, any claims not timely filed by a person after the prior lapse of the prior statute, and assuming the person is still 40 or under, said aggrieved person may bring a claim within three years of the new deadline. Nothing in the plain language of the statute limits the timeframe as long as a person is 40 or under during the relevant three year filing period.

Defendant’s argument challenging the revival requires a finding that the prior version of section 340.1 constitutes a definitive statute of repose barring the subsequent revival. To make this finding, the court must at least in part find that the current extensions in subdivisions (q) and (r) bars revival of prior claims of persons that turned 26 years of age and failed to file a claim within one year prior to the newest amendment.

“‘[L]egislative enactments are generally presumed to operate prospectively and not retroactively unless the Legislature expresses a different intention’” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 844 [“[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application”].) “[A] statute's retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent “some constitutional objection” to retroactivity.” (Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 841.) “But it has long been established that a statute that interferes with antecedent rights will not operate retroactively unless such retroactivity be ‘the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.’” (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475.)

Following SB 1779 and before AB 218, the California Supreme Court interpreted legislative extensions of the statute of limitations for sex crimes applied to Code of Civil Procedure section 340.1. (Quarry v. Doe I (2012) 53 Cal.4th 945 “Quarry.”) The Quarry court was presented with the issue of whether previously lapsed claims were revived as a result of the 2002 amendment to the statute. (Id., at p. 952.) Consistent with the authority cited above, the court found that retroactive application of lapsed claims was allowable, when expressly authorized. “The Legislature has authority to establish—and to enlarge—limitations periods. As we shall explain, however, legislative enlargement of a limitations period does not revive lapsed claims in the absence of express language of revival. This rule of construction grows out of an understanding of the difference between prospective and retroactive application of statutes.” (Id., at. p. 955.) The court ultimately found that the 2002 amendments constituted a limited revival of identified claimants and subsequent extension to age 26 though Plaintiffs’ claim remained barred due to the failure to timely file a claim within one year of the extended dates. (Id., at pp. 971-972.)

Under the authority of Quarry, Defendants correctly argue that the later amendment to section 340.1 prospectively applies to non-lapsed claims from qualified plaintiffs. Nevertheless, the argument obtusely denies both Assembly Bill 218 and the amended plain language of subdivisions (q) and (r), which unequivocally revive and extend claims previously and undeniably recovered under the 2019 amendment. The court finds no basis of authority distinguishing the explicit revival language. Nothing in the reasoning of Quarry precludes future legislative decisions to revive claims or disregard the express language of the statute. Again, repose is not a guaranteed right, and subject to termination upon explicit legislative changes. (Hellinger v. Farmers Group, Inc., supra, 91 Cal.App.4th at p. 1061.)

The court therefore denies the motion for summary judgment on grounds that the revival of the claim is not barred under a statute of repose defense. The court therefore considers the motion for summary adjudication on the treble damages claim.

Defendants alternatively argue for protection from any retroactive application of the treble damages provisions under section 340.1, subdivision (b). Defendants challenge the statutory language on grounds of no specific revival of this particular provision. Subdivisions (q) and (r) only address subdivision (a), and not subdivision (b). Defendants also contend that the plain language of the statute provides limiting language barring retroactive application.

Plaintiff in opposition tacitly acknowledges the prospective presumption on statutory application, and even concedes to the lack of any express retroactive application of the provision in the statute. Nevertheless, according to Plaintiff, subdivision (b)(1) was added as a result of AB 218, and therefore the legislature intended to add said treble damages recovery to any revived claim. Plaintiff also relies on the legislative history in supporting the argument. [Woodhall Decl., Ex. 1.]

The legislative notes, specifically acknowledge the addition of the treble damages provision to those parties responsible for knowingly covering up said conduct. The notes distinctly address revival and the addition of treble damages as separate provisions, with no specific mention of intent to render treble damages attachable to any revived claims.

Consistent with the statutory interpretation provided above, the plain language of subdivision (q) unequivocally revives barred claims described under subdivision (a). The plain language and history of the statute also establishes that subdivision (b) constitutes a new form of recoverable damages against participants responsible for covering up known, wrongful behavior. Consistent with the rules for statutory interpretation, the addition of a treble damages claim clearly applies to claims not previously barred/accruing under this latest time frame. The court, however, finds nothing in the plain language of the statute otherwise provides for the explicit addition of treble damages to revived claims under subdivision (a). The court therefore declines to find the revival of previously barred claims automatically entitles a revived claim to a concomitant treble damages claim.

The court therefore considers retroactivity of the claim. Again, statutory interpretation garners a presumption of proactive interpretation. The issue of additional damages to a revived cause of action however presents a more nuanced question regarding retroactive application of a statute. A recent case considering the issue of compensatory versus treble damages under section 340.1 describes the treble damages provision in the statute as punitive in nature. “[T]he treble damages imposed under section 340.1 are, by definition, in addition to a plaintiff's actual damages, and the statute necessarily awards the plaintiff, upon proof of a cover up, damages ‘beyond the equivalent of harm done.’ (Citations.) Because the treble damages provision under section 340.1 plainly is designed to punish those who cover up childhood sexual abuse and thereby to deter future cover ups, rather than to compensate victims, the imposition of these damages is primarily punitive …” (Los Angeles Unified School Dist. v. Superior Court (2021) 64 Cal.App.5th 549, 562.)

While Plaintiff challenges the application of the United States Supreme Court case Landgraf v. USI Film Products, the court finds the root consideration of the nature of damages in determining retroactivity instructive. (Landgraf v. USI Film Products (1994) 511 U.S. 244 (114 S.Ct. 1483, 128 L.Ed.2d 229 (“Landgraf.”) The Landgraf court concedes that compensatory damages by nature “are quintessentially backward looking.” (Id., at 282.) Nevertheless, where damage transition away from compensation and into deterrent or punitive actions, the court finds the retroactive imposition of said damages constitutes a “an important legal consequence that cannot be ignored.” (Id., at pp. 283-284.)

Defendants liken the treble damages claim to one for punitive damages and seek a declaration akin to an ex post facto bar to said claim. The court finds no support for this particular argument. “None of these cases considered or even mentioned the type of intent-effect analysis required by Mendoza–Martinez. Instead, they quickly disposed of the defendants’ ex post facto arguments on the ground that the doctrine had no application to civil remedies.” (Roman Catholic Bishop of Oakland v. Superior Court (2005) 128 Cal.App.4th 1155, 1166.)

Nevertheless, while the US Supreme Court remained non-committal on the subject matter, the court still found any retroactive application of a statute expanding damages beyond compensation, absent legislative intent lacking support. The court found no examples of a case supporting the increase of damages beyond compensatory recovery for conduct prior to the enactment of a statute. (Landgraf, supra, 511 U.S. at p. 284.)

“It will frequently be true, as petitioner and amici forcefully argue here, that retroactive application of a new statute would vindicate its purpose more fully.^[] That consideration, however, is not sufficient to rebut the presumption against retroactivity. Statutes are seldom crafted to pursue a single goal, and compromises necessary to their enactment may require adopting means other than those that would most effectively pursue the main goal. A legislator who supported a prospective statute might reasonably oppose retroactive application of the same statute. … [¶] The presumption against statutory retroactivity is founded upon sound considerations of general policy and practice, and accords with long held and widely shared expectations about the usual operation of legislation.”

The court therefore finds no basis for retroactive application of the treble damages, or legislative intent to retroactively apply treble damages to revived claims. The motion for summary adjudication on the treble damages claim is therefore granted. (Code Civ. Proc., 437c, subd. (f)(1).)

The court therefore denies the motion for summary judgment, and grants the motion for summary adjudication on the treble damages claim.

Three motions for summary judgment currently reserved for dates beginning on September 14. Trial remains set for December 5, 2022, within an OSC to long cause on October 26, 2022.

[1]Plaintiff represents Defendant filed a writ of mandate on the order, which was denied by the Second Appellate District. [Declaration of Blake Woodhall, ¶¶ 10-11.] The court electronic filing system shows no record of the writ.