Doe v. Roman Catholic Bishop of Stockton

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Filed 3/23/11 Doe v. Roman Catholic Bishop of Stockton CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
JOHN DOE,
Plaintiff and Appellant,
v.
THE ROMAN CATHOLIC BISHOP OF
STOCKTON et al.,
Defendants and Respondents.
C064094
(Super. Ct. No.
39–2009–00205174–CU–PO–STK)
Another alleged victim of sexual abuse comes before this
court, appealing the dismissal of a lawsuit that seeks to hold
Catholic Church entities liable for child sexual abuse
perpetrated by one of their priests decades ago.
Plaintiff John Doe claims his suit is timely under the
common law ―delayed accrual‖ rule as recognized in Evans v.
Eckelman (1990) 216 Cal.App.3d 1609 (Evans), or under the

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current version of Code of Civil Procedure section 340.1,1
because he did not recover memory of the abuse and its
connection to his psychological injuries until he was well into
middle age. He maintains this position despite the fact that
his lawsuit was filed well after the one-year ―revival window‖
that the Legislature created during the calendar year 2003
within which to bring lapsed claims against nonabuser defendants
who knew or had reason to know their agents or employees were
molesting children. (§ 340.1, subds. (b)(2), (c).)
We have weighed in on the issue on previous occasions.
(K.J. v. Roman Catholic Bishop of Stockton (2009)
172 Cal.App.4th 1388, review granted June 24, 2009, S173042;
D.D. v. Roman Catholic Bishop of Stockton (Aug. 12, 2009,
C057260) [nonpub. opn.], review granted Nov. 10, 2009, S176451;
L.A. v. Roman Catholic Bishop of Stockton (Aug. 12, 2009,
C057895) [nonpub. opn.], review granted Nov. 10, 2009, S176483;
Jane Roe 21 v. Defendant Doe 1 (2010) (Dec. 7, 2010, C062505)
[nonpub. opn.], review granted Mar. 2, 2011, S189814.) On each
occasion, we agreed with the result reached by the Second
Appellate District, Division Eight, in Hightower v. Roman
Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759.
Hightower held that childhood sexual molestation claims against
nonabuser entity defendants that were time-barred before
January 1, 2003, remain time-barred unless the victims filed
1 Undesignated statutory references are to the Code of Civil
Procedure.

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suit during the one-year revival window, even if they did not
recover their memory of the abuse until after the window period
closed. (Hightower, at pp. 767-768.)
Four of our decisions are on hold by the California Supreme
Court pending final adjudication in the lead case of Quarry v.
Doe I (2009) 170 Cal.App.4th 1574, review granted June 10, 2009,
S171382 (Quarry).2
Until the high court resolves the issue, we continue to
adhere to the position we have taken in our prior decisions. To
avoid repetition, we will not restate our views at length, but
shall summarize them and briefly respond to the major arguments
offered by plaintiff Doe.
FACTUAL BACKGROUND
Because this appeal arises from a judgment of dismissal
following the sustaining of a demurrer without leave to amend,
we give the complaint a reasonable interpretation, accepting as
true all material facts properly pleaded. (Doe v. City of Los
Angeles (2007) 42 Cal.4th 531, 543.) Read in that light,
2 In Quarry, the Court of Appeal, First Appellate District,
Division Four, reached a diametrically opposite result from
Hightower and the four cases we decided. Review was granted by
the California Supreme Court, which then placed a hold on our
cases. In another case held for the Supreme Court‘s decision in
Quarry, the same panel that decided Hightower reaffirmed its
holding, while considering and rejecting several new arguments
that counsel have developed since Hightower was decided. (Doe
v. Roman Catholic Bishop of San Diego (2009) 178 Cal.App.4th
1382, review granted Feb. 3, 2010, S178748.)

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plaintiff‘s July 9, 2009 amended complaint for damages discloses
the following pertinent allegations.
Plaintiff John Doe (a fictitious name to protect his
privacy) was born in May 1965. Defendants The Roman Catholic
Bishop of Stockton and the Pastor of St. Anne Church
(collectively the Church) are religious institutions operating a
Catholic school that plaintiff and his family once attended.3
The Church employed Father Oliver O‘Grady (who is not a party to
this action) as a priest and spiritual and secular counselor at
the parish where plaintiff attended religious school.
From 1971 through 1974, plaintiff was sexually molested on
multiple occasions by Father O‘Grady. The abuse took place
during confessionals, counseling and tutoring sessions, and
rides in Father O‘Grady‘s automobile.
Plaintiff alleges that the Church knew of Father O‘Grady‘s
sexual misconduct, yet concealed it from its parishioners and
failed to report him to law enforcement.
As a victim of the molestations, plaintiff became subject
to ―psychological coping mechanisms‖ that prevented him from
―being able to know and meaningfully connect the psychological
and emotional injuries‖ which were occurring ―and would in the
future continue to occur and develop in him.‖ It was only in
December 2006, that plaintiff discovered ―the causal
3 The Church entities were served as fictitious defendants John
Roe 1 and John Roe 2, respectively.

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relationship between his adulthood injuries and the
molestation.‖
Based on these allegations, plaintiff pleaded causes of
action for negligence, negligent supervision and failure to
warn, fraud, and fraudulent concealment. He sought damages for
emotional distress, loss of income and other harm.
PROCEDURAL BACKGROUND
Plaintiff filed suit on March 2, 2009. The Church filed a
demurrer, based on a failure to state a cause of action and
expiration of the statutes of limitations set forth in sections
340 and 340.1. The trial court sustained the demurrer without
leave to amend and judgment was entered.
DISCUSSION
I. “Equitable Delayed Accrual” Has Been Supplanted by Statute
Plaintiff, who is now in his fifties, attempts to state a
tort claim against the Church based upon sexual abuse
perpetrated against him by Father O‘Grady in the 1970‘s, when
plaintiff was between six and nine years of age. He alleges
that the Church knew of Father O‘Grady‘s sexual misconduct, yet
failed to protect him from the priest‘s predatory behavior. He
further alleges he did not recover memory of the abuse and its
connection to his psychological injuries until December 2006.
He filed this action in 2009, more than 32 years after the
childhood sexual abuse allegedly inflicted upon him had ceased.

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As a general rule, a cause of action for childhood sexual
abuse accrues at the time of molestation. (John R. v. Oakland
Unified School Dist. (1989) 48 Cal.3d 438, 443-446 (John R.);
Doe v. Bakersfield City School Dist. (2006) 136 Cal.App.4th 556,
567, fn. 2.) Prior to the enactment of section 340.1 in 1986,
courts applied former section 340, which provided for a one-year
statute of limitations for child sexual abuse claims. Courts
also applied section 352, which tolled the running of the
statute while the plaintiff was a minor, such that the action
could be timely brought on or before the plaintiff‘s 19th
birthday. (See former § 340, subd. (3), as amended by Stats.
1982, ch. 517, § 97, p. 2334; DeRose v. Carswell (1987)
196 Cal.App.3d 1011, 1015.)
Since the last molestation of plaintiff took place in 1974
when he was still a minor, he had until his 19th birthday to
file suit. He did not. Thus, the statute of limitations
expired on his claim against the Church in May 1984 when he
turned 19.
In 1986, the Legislature enacted section 340.1, which
broadened the statute of limitations on claims for childhood
sexual abuse. (Former § 340.1, added by Stats. 1986, ch. 914,
§ 1, pp. 3165-3166; see Shirk v. Vista Unified School Dist.
(2007) 42 Cal.4th 201, 207 (Shirk).) The statute was amended on
subsequent occasions—each time opening the temporal door a
little wider for victims of childhood sexual abuse to bring

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suit, but only against perpetrators. (Shirk, at pp. 207-208.)
Thus, the amendments had no effect on plaintiff‘s lapsed4 claim.
In 1998, the Legislature, for the first time, enacted an
extended limitations period for bringing tort claims against
nonperpetrators of sexual abuse who were nevertheless a ―legal
cause‖ of the abuse. However, the amendment carried a firm time
cap, requiring suit to be brought no later than the victim‘s
26th birthday. (§ 340.1, former subd. (b), amended by Stats.
1998, ch. 1032, § 1, p. 7785; Shirk, supra, 42 Cal.4th at
p. 208.) Because plaintiff was in his thirties when the law
became operative, his claim was still time-barred. (Hightower,
supra, 142 Cal.App.4th at pp. 765-766.)
The 2002 amendment to section 340.1, which is the focal
point of this case, changed the law again. (Stats. 2002, ch.
149, § 1.) The amendment retained the age 26 cutoff for actions
against all nonabuser defendants (§ 340.1, subds. (a), (b)(1))
except a limited class of nonperpetrators described in section
340.1, subdivision (b)(2)—those who knew or should have known of
the abuse, yet failed to protect the victim (subdivision (b)(2)
defendants). As to these defendants, the Legislature created
two time caps: (1) a new limitations period of age 26 or three
years from the date of discovery of adult-onset emotional harm,
4 In this opinion, we use the term ―lapsed‖ to ―describe a cause
of action against which the limitations period has run, but
which no court has adjudicated.‖ (David A. v. Superior Court
(1993) 20 Cal.App.4th 281, 284, fn. 4 (David A.).)

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whichever is later; and (2) for victims whose claims were
otherwise time-barred on January 1, 2003, the statute of
limitations was ―revived,‖ as long as suit was filed within one
year of January 1, 2003. (§ 340.1, subd. (c), italics added.)
Plaintiff‘s complaint against the Church invokes the
statute of limitations applicable to subdivision (b)(2)
defendants, i.e., persons or entities who had ―reason to know‖
or were ―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.‖ (§ 340.1, subd.
(b)(2), added by Stats. 2002, ch. 149, § 1; see Doe v. City of
Los Angeles, supra, 42 Cal.4th at p. 545.).
Since plaintiff fell into the category of individuals whose
claims against nonperpetrator defendants such as the Church were
time-barred, the 2002 amendment granted him a one-year time
window in which to bring suit. He failed to avail himself of
that opportunity.
Plaintiff argues that he may nevertheless take advantage of
the common law delayed discovery rule, which ―postpones accrual
of a cause of action until the plaintiff discovers, or has
reason to discover, the cause of action.‖ (Norgart v. Upjohn
Co. (1999) 21 Cal.4th 383, 397.) His main authority is Evans,
supra, 216 Cal.App.3d 1609. Evans was a case where adult
plaintiffs sued their uncle and former foster father for sexual
abuse they suffered in their childhood. (Id. at p. 1612.) They

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claimed that ―‗psychological blocking mechanisms‘‖ such as fear,
internalized shame, disassociation and repression caused them to
be unaware, for decades, of both the sexual abuses and the
psychological injuries they caused. (Id. at p. 1613.) The
Court of Appeal, First Appellate District, Division Five,
applied the common law delayed accrual rule applicable to
fiduciary relationships to hold the complaint sufficient to
withstand a demurrer based on the statute of limitations. (Id.
at pp. 1614-1616.) ―We conclude that the purposes of the
statute of limitations and the rationale of the delayed
discovery rule as it has developed in our courts require that
accrual of a cause of action for child sexual abuse by a parent
or similar figure of authority be delayed until the plaintiff
knows or reasonably should know of the cause of action.‖ (Id.
at p. 1617.)
Evans was decided in early 1990, at a time when section
340.1 gave courts express permission to apply common law delayed
discovery principles to lawsuits alleging child molestation.
Former subdivision (d) of the statute then stated: ―‗Nothing in
this bill is intended to preclude the courts from applying
delayed discovery exceptions to the accrual of a cause of action
for sexual molestation of a minor.‘‖ (Evans, supra,
216 Cal.App.3d at p. 1614, italics added.) Evans quoted that
section and relied on it as a legislative imprimatur for its
decision. (Ibid.)

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Four years after Evans, when the Legislature liberalized
the limitations period to commence actions for childhood sexual
abuse, it also eliminated the provision that had allowed courts
to apply the common law delayed accrual rule.5 That deletion has
been preserved in all subsequent amendments to the statute.
―‗It is ordinarily to be presumed that the Legislature by
deleting an express provision of a statute intended a
substantial change in the law.‘‖ (People v. Dillon (1983)
34 Cal.3d 441, 467 [disapproved on a separate ground in People
v. Chun (2009) 45 Cal.4th 1172, 1186], quoting People v.
Valentine (1946) 28 Cal.2d 121, 142.) ―‗Where the Legislature
omits a particular provision in a later enactment related to the
same subject matter, such deliberate omission indicates a
different intention which may not be supplanted in the process
of judicial construction.‘‖ (Hoschler v. Sacramento City
Unified School Dist. (2007) 149 Cal.App.4th 258, 269, quoting
Kaiser Steel Corp. v. County of Solano (1979) 90 Cal.App.3d 662,
667.)
―Section 340.1 sets forth a special statute of limitations
for victims of childhood sexual abuse.‖ (County of Los Angeles
v. Superior Court (2005) 127 Cal.App.4th 1263, 1268.) It
therefore prevails over more general statutory limitations
5 In 1990, the Legislature reenacted former section 340.1,
subdivision (d) in substantially the same form as subdivision
(l). The 1994 amendment deleted the entire provision from the
statute. (See Historical and Statutory Notes, 13C West‘s Ann.
Code Civ. Proc. (2006 ed.) foll. § 340.1, pp. 172-173.)

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periods that may apply. (Aetna Cas. & Surety Co. v. Pacific Gas
& Elec. Co. (1953) 41 Cal.2d 785, 787.) By removing its
previous sanction of equitable theories of delayed discovery, we
must presume the Legislature intended to supplant the common law
delayed discovery rule with the statutorily defined discovery
rule that it put in place in 1994. (City of Irvine v. Southern
California Assn. of Governments (2009) 175 Cal.App.4th 506,
522.) Thus, the only cognizable delayed discovery rule is the
one the Legislature explicitly provided for in section 340.1.
II. Section 340.1 Is Not Retroactive as to Subdivision (b)(2) Defendants
Plaintiff alternatively argues that he may take advantage
of the delayed accrual rule in effect in 2006 when he discovered
his repressed memory, rather than the one that existed at the
time he was sexually molested. Under this line of reasoning,
the fact that his cause of action expired under then-existing
law is irrelevant because his cause of action had not even
accrued until he recovered his memory and connected it to his
psychological injuries, by which time the Legislature had
conveniently amended the statute.
Plaintiff‘s argument amounts to an assertion that the
delayed discovery rule applies to any victim of a subdivision
(b)(2) defendant who discovers that his or her psychological
injuries were caused by childhood sexual abuse, regardless of
whether his or her molestation claims had lapsed. But, as the
court stated in Hightower, such a construction would obliterate
the ―clear distinction‖ the Legislature drew between plaintiffs

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whose claims were time-barred and those whose were not.
(Hightower, supra, 142 Cal.App.4th at pp. 767-768.) It would
also render the one-year revival provision meaningless. Why,
one must ask, would the Legislature expressly revive time-barred
claims against subdivision (b)(2) defendants for a limited one-
year period if it had also intended, in the same bill, to impose
a delayed discovery rule as to all claims, regardless of whether
they were time-barred? The only interpretation of the 2002
amendment that makes logical sense is that the Legislature
intended the delayed discovery rule against nonperpetrator
defendants to operate prospectively as to individuals whose
claims were not yet time-barred, while allowing victims whose
claims were time-barred a limited one-year window of opportunity
within which to bring suit.
This interpretation is consistent with the settled rules of
statutory construction. In general, statutes are presumed to
operate prospectively unless (1) they contain express language
of retroactivity, or (2) other sources provide a clear and
unavoidable implication that the Legislature intended
retroactive application. (Civ. Code, § 3; McClung v. Employment
Development Dept. (2004) 34 Cal.4th 467, 475; Evangelatos v.
Superior Court (1988) 44 Cal.3d 1188, 1209.)6 Furthermore, ―a
legislative change in the statute of limitations is presumed not
6 The Church has requested judicial notice of legislative
background materials pertaining to the 2002 amendment of section
340.1. We grant the unopposed request, but our decision does
not depend on those materials.

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to revive lapsed claims unless the amending act expressly
mandates such an effect. (Gallo v. Superior Court [(1988)]
200 Cal.App.3d [1375,] 1378; Barry v. Barry (1954)
124 Cal.App.2d 107, 112.) If the Legislature wishes to revive
lapsed claims, it should so declare in ‗unmistakable terms.‘
(See Douglas Aircraft Co. [v. Cranston (1962)] 58 Cal.2d [462,]
466.) Otherwise such claims will be left to lie in repose.‖
(David A., supra, 20 Cal.App.4th at p. 286.)
Plaintiff attempts to distinguish Hightower by the fact
that the plaintiff there had ―always known‖ he had been abused,
and therefore was not, like plaintiff, able to take advantage of
the delayed discovery rule heralded by the 2002 amendment. It
is true that the Hightower court noted, ―[e]ven if Hightower‘s
interpretation were correct,‖ he could not take advantage of
delayed accrual because he was not blamelessly ignorant of his
sexual abuse. (Hightower, supra, 142 Cal.App.4th at p. 768.)
However, that portion of the ruling was clearly dictum. The
holding of the case turns squarely on the Hightower court‘s
interpretation of the 2002 amendment to section 340.1, to which
we here subscribe.
III. Equitable Estoppel Does Not Apply
Plaintiff‘s last argument is that the doctrine of equitable
estoppel is available to prevent the Church from invoking the
statute of limitations defense. He asserts that ―it would be
inequitable for [defendant] to benefit from its own wrongful
conduct by asserting the statute of limitations as a defense

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. . . when it was the action of [defendant] that prevented the
victim from coming forward during the statutory period.‖
(Citing John R., supra, 48 Cal.3d at p. 446.)
Equitable estoppel is not available to plaintiff. The
doctrine is based on the principle that a defendant who takes
some affirmative act to discourage a plaintiff from filing a
timely claim may thereafter be estopped from raising the statute
of limitations as a defense. (John R., supra, 48 Cal.3d at
p. 445; Christopher P. v. Mojave Unified School Dist. (1993)
19 Cal.App.4th 165, 170.) Thus, in John R., the plaintiff
alleged that a teacher who had molested him used threats and
intimidation to prevent him from reporting it to the
authorities. (John R., supra, 48 Cal.3d at p. 445.)
Here, there is no allegation that the Church engaged in any
affirmative conduct to prevent plaintiff from filing his claim
in a timely manner. On the contrary, plaintiff alleges that he
did not realize that something wrongful had occurred or that he
had been psychologically harmed until he was well into
adulthood. It is inconceivable that the Church discouraged or
prevented plaintiff from seeking redress for injuries of which
he was not even aware. (K.J. v. Arcadia Unified School Dist.
(2009) 172 Cal.App.4th 1229, 1240.) Plaintiff‘s own pleadings
prevent him from invoking equitable estoppel to avoid the
statute of limitations. (Ibid.)

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DISPOSITION
The judgment is affirmed. The Church defendants shall
recover their costs on appeal. (Cal. Rules of Court, rule
8.278(a)(1), (2).)
BUTZ , J.
We concur:
BLEASE , Acting P. J.
HULL , J.

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