Roe 21 v. Doe 1 et al.

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Filed 12/7/10 Roe 21 v. Doe 1 et al. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
----
JANE ROE 21,
Plaintiff and Appellant,
v.
DEFENDANT DOE 1 et al.,
Defendants and Respondents.
C062505
(Super. Ct. No. CV033950)
This is another in a series of appeals wending their way
through the appellate courts, in which adult plaintiffs have
sought to hold Catholic Church entities liable for child sexual
abuse perpetrated by their clergy decades ago.
These plaintiffs argue that their lawsuits are timely under
the “delayed discovery rule” of Code of Civil Procedure section
340.1,1 because they did not recover memory of the abuse and its
connection to their psychological injuries until they were well
into middle age. They maintain this position despite the fact
that their lawsuits were filed well after the one-year “revival
1 Undesignated statutory references are to the Code of Civil
Procedure.

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window” that the Legislature established during the calendar
year 2003, to bring lapsed claims against nonabuser defendants
who knew or had reason to know their agents or employees were
molesting children. (§ 340.1, subd. (b)(2), (3).)
This court has weighed in on the issue on three prior
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.)
Each time 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
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.)
All three of our decisions--K.J., D.D., and L.A.--are being
held by the California Supreme Court pending final adjudication
in the lead case of Quarry v. Doe 1 (2009) 170 Cal.App.4th 1574,
review granted June 10, 2009, S171382.2
2 In Quarry, the First Appellate District, Division Four,
reached a diametrically opposite result from Hightower and the

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We shall adhere to the position we took in our three prior
decisions and affirm the judgment. Because the ultimate
resolution of this issue now lies with the state high court, we
will not restate our position at length. We shall merely
summarize the main points and briefly respond to some of the
major arguments offered by Roe.
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, and accept as
true all material facts properly pleaded. (Doe v. City of Los
Angeles (2007) 42 Cal.4th 531, 543.) Read in that light, the
first amended complaint discloses the following pertinent
allegations.
Plaintiff Jane Roe 21 (hereafter Roe, a fictitious name to
protect her privacy) was born in June of 1964. Beginning in
fifth grade, Roe attended a Catholic school in Lodi operated by
defendants The Roman Catholic Bishop of Stockton and the Pastor
of St. Anne Church (collectively the Church).3 The Church
three 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.)
3 The Church entities were not named in the complaint, but were
later substituted as Doe defendants.

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employed Father O‟Grady, who was a “priest, counselor and
spiritual leader” at the parish where Roe attended services and
was a student.4
Beginning in 1972 and continuing until 1976, Roe was
sexually molested on multiple occasions by Father O‟Grady,
usually in an office, a quiet classroom, or in the confessional.
The abuse consisted of inappropriate hugging, kissing and sexual
touchings. Father O‟Grady molested dozens of other children
during his tenure as a priest. He was eventually convicted of
child molestation, sent to prison and deported to Ireland. The
Church knew of Father O‟Grady‟s propensities for sexual abuse of
minors prior to the time Roe was molested, yet failed to protect
her from his horrendous conduct. Despite its knowledge of his
nefarious history as a serial child molester, the Church
assigned Father O‟Grady to parishes where he continually had
access to children. It also continually encouraged and induced
Roe to have contact with O‟Grady in an unsupervised environment.
During the time she was molested, Roe developed “various
psychological coping mechanisms” which made her “incapable of
ascertaining the wrongfulness of [Father] O‟Grady‟s sexual
conduct toward her.” As a result, Roe “completely repressed all
memory of the sexual abuse” at the time of the molestations.
In November 2006, Roe was reading a magazine article
describing Father O‟Grady‟s sexual misconduct with other minor
4 Father O‟Grady is not a party to this action.

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children. This brought up “painful and disturbing memories of
her own sexual molestation at the hands of [Father] O‟Grady.”
As a result, Roe recovered her memory of the abuse, which had
been previously repressed.
Father O‟Grady‟s tortious conduct, of which the Church was
aware, caused Roe to suffer shock, emotional distress,
embarrassment and loss of self-esteem, all of which caused her
economic and psychological damage.
Based on these allegations, Roe pleaded many causes of
action, including negligence, fraud, breach of fiduciary duty,
and failure to warn. The final count accuses the Church of
making a child available to another for sexual misconduct, in
violation of Penal Code section 266j.
PROCEDURAL BACKGROUND
Roe filed suit on October 31, 2007. The Church filed a
demurrer, including failure to state a cause of action and the
statute of limitations bars set forth in sections 340 and 340.1.
The trial court sustained the demurrer with leave to amend.
Roe then filed an amended complaint on November 21, 2008,
based upon the same essential allegations. The trial court
sustained the demurrer, this time without leave to amend.
Judgment was entered and Roe appeals.

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DISCUSSION
I. The Delayed Discovery Rule Does Not Apply to Roe
Plaintiff Roe, who is now in her forties, is attempting to
state a tort claim against the Church based upon sexual abuse
perpetrated against her by one of its priests in the 1970‟s,
when she was between eight and 12 years of age. She alleges
that the Church knew of the priest‟s past history and reputation
as a serial child molester yet failed to protect children such
as Roe from his predatory behavior. Roe alleges she repressed
all memory of the abuse until 2006. She filed this action in
2007, more than 30 years after the childhood sexual abuse had
ended. Still, she claims she may take advantage of the “three
years [from] the date of discovery” rule set forth in section
340.1, subdivision (a).
“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
periods that may apply. (Aetna Cas. & Surety Co. v. Pacific Gas
& Elec. Co. (1953) 41 Cal.2d 785, 787.)
Roe‟s complaint invokes the statute of limitations
applicable to nonperpetrator defendants who knew or should have
known that their agent or employee was sexually abusing
children, yet failed to protect victims such as plaintiff.
These defendants are specifically identified in section 340.1
subdivision (b)(2), i.e., persons or entities who had “reason to

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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.) We will
refer to these defendants as subdivision (b)(2) defendants or
nonperpetrator defendants.
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; 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); DeRose v. Carswell
(1987) 196 Cal.App.3d 1011, 1015.)
Since the last molestation of Roe took place in 1976 when
she was still a minor, she had until her 19th birthday to file
suit. She did not. Thus, the statute of limitations expired on
Roe‟s claim against the Church in June 1983 when she turned 19.
In 1986, the Legislature enacted section 340.1, which
broadened the statute of limitations on claims for childhood

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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
suit, but only against perpetrators. (Shirk, at pp. 207-208.)
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)(1), amended by Stats.
1998, ch. 1032, § 1; Shirk, supra, 42 Cal.4th at p. 208.)
Because Roe was in her thirties when the law became operative,
it had no effect on her lapsed claim.5 (Hightower, supra,
142 Cal.App.4th at pp. 765-766.)
The 2002 amendment, which is the focal point of this case,
changed the law again. 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 subdivision (b)(2)--those who knew or should have known of
the abuse, yet failed to protect the victim. As to these
5 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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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, whichever is later
(delayed discovery rule); and (2) for victims whose claims were
otherwise time-barred on January 1, 2003, the statute of
limitations was “revived,” provided suit was commenced within
one year of January 1, 2003. (§ 340.1, subd. (c).)
Roe argues 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
previously lapsed. However, as the court stated in Hightower,
such a construction would obliterate the “clear distinction”
that the Legislature drew between plaintiffs 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 those whose claims were not yet time-barred,

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while allowing victims whose claims were time-barred a limited
one-year window within which to bring suit.
Our 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. (§ 3; McClung v. Employment
Development Dept. (2004) 34 Cal.4th 467, 475; Evangelatos v.
Superior Court (1988) 44 Cal.3d 1188, 1209.) Furthermore, “a
legislative change in the statute of limitations is presumed not
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.)
We need not respond to each of Roe‟s arguments to the
contrary. Suffice it to say that the 2002 amendment of section
340.1 contains no express language of retroactivity except that
provision which opens up a revival window for a limited one-year
period and Roe does not point to anything in the legislative
history of the statute that shows unmistakably, and without
resort to speculative inferences, that the Legislature intended

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the delayed discovery rule to operate retroactively to revive
all claims against subdivision (b)(2) defendants, regardless of
whether they were time-barred when the amendment took effect.
For all of these reasons, we adhere to the position we have
taken previously that the delayed discovery rule does not apply
to claims such as Roe‟s that were time-barred when the 2002
enactment came into effect. Because she failed to avail herself
of the one-year revival window in 2003, Roe‟s claim remained
time-barred.
II. Other Arguments
For the sake of completeness, we address Roe‟s arguments
that do not depend either on an unreasonably strained
interpretation of the language of the 2002 amendment6 or on its
murky and inconclusive legislative history.
A. Equitable Delayed Discovery
Roe contends that, regardless of the discovery rule set
forth in section 340.1, her action is timely under common law
equitable delayed discovery principles. (See Norgart v. Upjohn
Co. (1999) 21 Cal.4th 383, 397-398.) In earlier times,
subdivision (d) of the 1986 version of section 340.1 and
6 For the first time in his reply brief and at oral argument,
counsel for Roe claimed that the phrase “as of” in the first
sentence of subdivision (c) must be construed to mean “on or
after.” Owing to considerations of fairness, we decline to
consider an argument raised so belatedly. (Reichardt v. Hoffman
(1997) 52 Cal.App.4th 754, 764.) We do pause to note, however,
that the Legislature had no trouble using the phrase “on or
after” on several occasions in the same statute, thereby showing
that it knew exactly how to use those words when it so intended.

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subdivision (l) of the 1990 version expressly permitted judicial
application of delayed discovery exceptions to the running of
the limitations period.7 However, that provision was stripped
out of section 340.1 as part of the 1994 amendment. (See
Historical and Statutory Notes, 13C West‟s Ann. Code Civ. Proc.
(2006 ed.) foll. § 340.1, pp. 172-173.) The 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.) By removing its previous sanction of
equitable theories of delayed discovery, we must presume the
Legislature intended to supplant common law delayed discovery
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
“delayed discovery” rule that can be recognized is the one the
Legislature provided for in section 340.1.
7 The provision 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 v. Eckelman (1990) 216 Cal.App.3d 1609, 1614,
quoting former § 340.1, subd. (d), italics added.)

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B. Subdivision (u)
Roe also places great emphasis on the fact that in the 2002
amendment, the Legislature retained section 340.1, former
subdivision (s) as subdivision (u). Subdivision (u) (originally
enacted as subdivision (s) in 1999) states, in relevant part:
“The amendments to subdivision (a) of this section, enacted at
the 1998 portion of the 1997-98 Regular Session, shall apply to
any action commenced on or after January 1, 1999, and to any
action filed prior to January 1, 1999, and still pending on that
date, including any action or causes of action which would have
been barred by the laws in effect prior to January 1, 1999.”
(Italics added.) Roe argues that by preserving subdivision (u)
in 2002, the Legislature signaled an intent to apply the delayed
discovery rule retroactively to all claims against
nonperpetrator defendants.
This theory ignores the fact that the language of the
subdivision refers only to the amendments to subdivision (a)
enacted in the 1997-1998 Regular Session. That legislation
capped the limitations period at age 26 as to nonperpetrators
whose acts were a “legal cause” of the abuse. Subdivision (u)
says nothing about the new class of nonperpetrator defendants
that was created by the 2002 amendment.
When, for the first time, it lifted the age 26 cap and
introduced a delayed discovery rule as to a new class of
nonperpetrator defendants defined in subdivision (b), the
Legislature could easily have made the rule applicable to claims
that would “otherwise have been barred” by preexisting laws.

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Instead, it revived time-barred claims for only a limited one-
year period. Subdivision (u) does not aid Roe‟s cause.
C. Vicarious Liability
Roe‟s next creative argument posits the theory that the
Church is liable for Father O‟Grady‟s misconduct through the
doctrine of vicarious liability, triggering the statute of
limitations applicable to the perpetrator himself rather than
his employer, i.e., the Church.
The contention fails. There is nothing in the allegations
of the complaint that would warrant the inference that sexually
abusing young children either fell within the course and scope
of Father O‟Grady‟s priestly duties, or could reasonably be
foreseen as an “outgrowth” of such duties. Consequently, the
doctrine of respondent superior does not apply. (Rita M. v.
Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453, 1461.)
The argument also ignores the bedrock principle that
specific statutes of limitations prevail over more general ones
that might otherwise apply. (Aetna Cas. & Surety Co. v. Pacific
Gas & Elec. Co., supra, 41 Cal.2d at p. 787.) Here the
Legislature has created a specific statute of limitations for
institutions such as the Church who knew of its agent‟s or
employee‟s propensity for sexual misconduct against minors but
failed to protect a child victim. This special statute of
limitations necessarily takes precedence over more general ones,
such as those based on vicarious liability.

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D. Penal Code section 266j
Roe‟s final argument is that the Church may be found liable
as a perpetrator rather than a nonperpetrator entity having
control over the perpetrator because she has sufficiently
alleged that the Church committed the crime of child procurement
under Penal Code section 266j. Roe reasons that since Code of
Civil Procedure section 340.1‟s definition of “childhood sexual
abuse” includes a violation of Penal Code section 266j,8 a person
who violates that code section must be considered a perpetrator.
Accordingly, the applicable limitations for her claim is the one
for causes of action against perpetrators of sexual abuse, i.e.,
three years from the date of discovery or age 26, whichever is
later. (§ 340.1, subd. (a)(1).) The argument does not fly.
Penal Code section 266j provides in relevant part: “Any
person who intentionally gives, transports, provides, or makes
available, or who offers to give, transport, provide, or make
available to another person, a child under the age of 16 for the
purpose of any lewd or lascivious act as defined in [Penal Code]
Section 288, or who causes, induces, or persuades a child under
the age of 16 to engage in such an act with another person, is
guilty of a felony . . . .”
8 Section 340.1, subdivision (e) states: “„Childhood sexual
abuse‟ as used in this section includes any act committed
against the plaintiff that occurred when the plaintiff was under
the age of 18 years and that would have been proscribed by
Section 266j of the Penal Code . . . .”

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A person cannot be convicted of child procurement without
proof of a sexual purpose. (People v. Bautista (2005)
129 Cal.App.4th 1431, 1437.) A violation of Penal Code section
266j requires that the procurement of the child be “for the
purpose of any lewd or lascivious act as defined in [Penal Code]
Section 288 . . . .” (Italics added.) While the complaint
charges that the Church made Roe “available” to Father O‟Grady,
under no reasonable construction does it charge that it
intentionally made her available for a sexual purpose. On the
contrary, the allegations, construed as a whole and in a common
sense manner, plead that the Church knew of Father O‟Grady‟s
propensity for child molestation, but turned a blind eye to it.
While such conduct may evince negligence or even recklessness,
it is plainly not an intentional act of child procurement.
Under no stretch of the imagination can the complaint be read to
allege that the Church provided child victims to one of its
priests with the specific intent that he commit acts of
molestation upon them. Penal Code section 266j has no
application here.
DISPOSITION
The judgment is affirmed.
BUTZ , J.
We concur:
RAYE , Acting P. J.
CANTIL-SAKAUYE , J.

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