Judge: William A. Crowfoot, Case: 22STCV10966, Date: 2022-12-09 Tentative Ruling

Case Number: 22STCV10966    Hearing Date: December 9, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

          On March 30, 2022, plaintiff Jane Roe (“Plaintiff”) filed this action against defendant Jose DeJesus Marquez alleging childhood sexual assault and violation of Civil Code section 1708.5.  Plaintiff alleges three incidents of abuse: (1) one in the summer of 2000 when she was nine years old (“First Incident”), (2) one in the summer of 2009 when she had just turned eighteen years old (“Second Incident”) at Defendant’s residence, and (3) one in the summer of 2009 while on a hike with Defendant (“Third Incident”). 

          On September 8, 2022, Defendant filed this motion to strike Plaintiff’s allegations referring to the Second Incident and Third Incident on the grounds that any claims of sexual assault arising from those events are time-barred.  Defendant also moves to strike Plaintiff’s request for attorneys’ fees. 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).)

          Defense counsel did not satisfy the meet and confer requirement because he and Plaintiff’s counsel only discussed the merits of this motion through written correspondence, not in person or by telephone.  Because the failure to meet and confer is not grounds to deny a motion to strike, the Court proceeds to evaluate the merits of the motion to strike but cautions that future failure to meet and confer as required by the Code of Civil Procedure may result in the motion being taken off calendar.

          Strike Allegations

          Defendant moves for an order striking references to the Second Incident and Third Incident on the grounds that they are time-barred by the two-year statute of limitations period in CCP § 335.1.  Defendant also argues that the statute of limitations set forth in CCP § 340.16 is inapplicable because it is not retroactive.  Section 340.16 provides a longer limitations period in certain instances of sexual assault that occurred on or after plaintiff’s 18th birthday.  Under section 340.16, a civil action for damages must be brought (1) within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault by the defendant against the plaintiff, or (2) within 3 years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault by the defendant against the plaintiff, whichever is later. 

In opposition, Plaintiff argues that the statute of limitations governing her claims is CCP § 340.1 because Defendant is accused of being the perpetrator of childhood sexual abuse, and the Second and Third Incidents were a continuation of the abuse that took place during her childhood.  CCP section 340.1 governs the statute of limitations for childhood sexual abuse and provides the following, 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:

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

As used in this section, “childhood sexual assault” includes any act committed against the plaintiff that occurred when the plaintiff was under the age of 18 years.  (CCP, § 340.1, subd. (d).)  Plaintiff also cites to Tietge v. Western Province of the Servites, Inc. (1997) 55 Cal.App.4th 382, which interpreted a former version of the statute of limitations.  In Tietge, the court of appeal reversed the lower court’s judgment in favor of the individual defendant after sustaining his demurrer without leave to amend.  (Id. at p. 385.)  One of the plaintiffs in Tietge alleged he was molested both as a minor and an adult, from 14 to 23 years of age.  In determining which statute of limitations period applied, the Tietge court stated:

The intimidation which allows an abuser to take advantage of a child does not magically or suddenly end the day the child attains majority.  Indeed, it can continue into the victim’s adulthood.  That is why the Legislature drafted the delayed discovery provisions of section 340.1 to provide that the limitations period begins to run only after the victim, who is then an adult, appreciates the wrongfulness of the abuser’s conduct.  Accordingly, where as here the alleged childhood sexual abuse is part of a course of conduct that continues beyond childhood, the limitations period of section 340.1 must apply.  Any other conclusion would run contrary to the goal of the statute and serve only to reward perpetrators who engage in long-term abuse.

(Id. at p. 387.) 

In his reply, Defendant argues that the Tiegte court did not expressly address the issue of whether CCP § 340.1 applies to sex abuse that occurred after the age of majority because the court acknowledged in a footnote that they were not called upon to decide this issue because the case was presented to them after demurrers were sustained without leave to amend.  (Id. at p. 398, fn. 2. 

The explanation of the public policy behind § 340.1 provided in Tietge leads this Court to agree with Plaintiff that § 340.1 applies to Plaintiff’s claims.  The Court additionally notes that the version of section 340.1 that the Tiegte court discussed, which has since been repealed, similarly contained a definition of “childhood sexual abuse” which has remained unchanged in the current version.   To the extent that Defendant argues that CCP § 340.16 is not retroactive, the Legislature has amended it to become retroactive, effective January 1, 2023.  Additionally, sections 340.1 or 340.16 each include a provision for delayed discovery.  It is unclear from the complaint when Plaintiff discovered her injuries were caused by sexual abuse.  Therefore, it cannot be ascertained from the complaint whether the claim based on the incidents that occurred when Plaintiff was nine years old through her late teens are time-barred.  Accordingly, the motion to strike the allegations referring to the Second and Third Incident is DENIED.

          Strike Attorneys’ Fees

Next, Defendant moves to strike Plaintiff’s prayer for attorneys’ fees.  Defendant argues that attorneys’ fees are not recoverable under Civil Code section 1708.5, which provides that pursuant to this section, a court may award “equitable relief, including, but not limited to, an injunction, costs, and any other relief the court deems proper.”  Contrary to Plaintiff’s claim, the term “any” is ambiguous when referring to the wide range of remedies that a Court may apply.  Defendant points out that other statutes, including the neighboring statute, Civil Code section 1708.6, expressly permit the Court to award attorney’s fees by specifically stating that it has the power to award “any other relief that the court deems proper, including reasonable attorney’s fees.”  By failing to explicitly include attorney’s fees in the language of section 1708.5, the Court agrees with Defendant that the Legislature did not intend for attorney’s fees to be recoverable pursuant to section 1708.5.  Plaintiff refers to the Digest for Senate Bill 2336 which states that “[t]he bill would also provide for additional remedies, as specified,” but attorney’s fees are not specified in section 1708.5.

Accordingly, Defendant’s motion to strike Plaintiff’s prayer for attorney’s fees is GRANTED.  This does not preclude Plaintiff from asserting causes of action based on other statutes which allow for the recovery of attorney’s fees.

In conclusion, Defendant’s motion to strike is GRANTED as to the prayer for attorney’s fees and DENIED in all other respects.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.