D.D. v. Roman Catholic Bishop of Stockton

1
Filed 8/12/09 D.D. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
----
D.D.,
Plaintiff and Appellant,
v.
THE ROMAN CATHOLIC BISHOP OF
STOCKTON et al.,
Defendants and Respondents.
C057260
(Super. Ct. No. CV031440)
This case requires us to explore the many revisions and
amendments to Code of Civil Procedure section 340.1,1 a special
statute of limitations governing causes of action alleging
childhood sexual molestation.
Plaintiff, who has been designated the fictitious name
D.D., appeals from a judgment following the sustaining of a
demurrer, without leave to amend, to his complaint for damages
against defendants The Roman Catholic Bishop of Stockton and the
Pastor of St. Anne Church (Church defendants).
1 Undesignated statutory references are to the Code of Civil
Procedure.

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2
Plaintiff alleges that in the 1970‟s while he was a pupil
at a Catholic school, Doe 4, a priest, teacher and employee of
the Church defendants, subjected him to horrific and continuous
acts of sexual abuse. Defendants allegedly knew of the abuse
and concealed, condoned, and otherwise failed to protect
plaintiff from Doe 4, despite actual or constructive notice that
he had also abused other minors and was a chronic child
molester. Plaintiff claims he repressed all memory of the
abuse, but recovered his memory and linked it to his
psychological problems in the summer of 2005. He filed this
action in late 2006, 30 years after the childhood sexual abuse
had ended.
Section 340.1, revised in 2002 when the Legislature also
opened up a one-year “revival window” for bringing childhood
sexual abuse claims, sets an outer date for commencement of an
action to recover damages as the result of childhood sexual
abuse of “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 . . . .” (§ 340.1, subd. (a).) The question on
appeal is whether this language applies retroactively to
childhood sexual abuse claims that had already lapsed2 by virtue
of the statute of limitations.
2 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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3
We agree with the trial court that the answer to this
question is “no.” The delayed discovery provisions of section
340.1, subdivision (a) were not intended to operate
retroactively. Nor may plaintiff avail himself of common law
theories of delayed accrual, since the Legislature has withdrawn
its sanction of such theories in its revisions to the statute.3
We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that from 1973 to 1976, while he was
between the ages of 8 and 11, he was abused “numerous times” and
“often a few times a week” by Doe 4, a priest and teacher who
was employed by the Church defendants.
According to the complaint, the Church defendants had
actual or constructive knowledge that Doe 4 was a habitual child
molester, but condoned the misconduct and concealed it from
public view.
Most of the acts of sexual abuse took place after plaintiff
was summoned to the vestibule “to help DOE 4 clean up.” It was
3 We acknowledge that the applicability of the delayed discovery
doctrine to claims such as plaintiff‟s, either through common
law theories of delayed accrual or through section 340.1,
subdivision (a), is now pending before the California Supreme
Court, which has granted review in two cases, including one from
this district. (Quarry v. Doe I (2009) 170 Cal.App.4th 1574,
review granted June 10, 2009, S171382 [briefing pending]; K.J.
v. The Roman Catholic Bishop of Stockton (2009) 172 Cal.App.4th
1388, review granted June 24, 2009, S173042 [further briefing
deferred pending disposition in Quarry v. Doe I].)

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in the vestibule, “where DOE 4 would sexually harass, molest and
abuse Plaintiff.” However, plaintiff “felt as if he had to show
up [at] the vestibule as DOE 4 had required, and could not
easily terminate his relationship with Defendant DOE 4.”
Plaintiff alleges that “[f]ollowing the above-described
sexual harassment, abuse, and molestation,” he “repressed all
memories of said harassment, abuse, and molestation . . . and
had no awareness of the actions, injury or wrongfulness of such
acts.” Only when plaintiff received a letter of apology from
Doe 4 in the summer of 2005 did he “beg[i]n realizing and
becoming aware of the wrongfulness of the abuse.” The letter
triggered plaintiff‟s realization that the “multiple mental and
emotional problems” that he was experiencing were being caused
by the childhood sexual abuse inflicted on him by Doe 4.
Furthermore, “[d]ue to Defendants‟ manipulation of [p]laintiff,
he was incapable of discovering that his psychological injury or
illness was caused by the sexual harassment, molestation and
abuse he endured at the hands of DOE 4 at an earlier date.”
Plaintiff filed suit on December 22, 2006, by which time he
was approximately 41 years old, seeking damages against
defendants for, inter alia, negligent supervision, negligent
hiring and retention, failure to warn, sexual battery and sexual
harassment.
The trial court sustained defendants‟ demurrer without
leave to amend, finding that plaintiff‟s claim lapsed in 1984
under former section 340 and was therefore time-barred under

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Hightower v. Roman Catholic Bishop of Sacramento (2006)
142 Cal.App.4th 759, 765-766 (Hightower).
DISCUSSION
I. Applicable Principles
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 treat the
demurrer as admitting all material facts properly pleaded. (Doe
v. City of Los Angeles (2007) 42 Cal.4th 531, 543.) “We apply
well-established principles of statutory construction in seeking
„to determine the Legislature‟s intent in enacting the statute
“„so that we may adopt the construction that best effectuates
the purpose of the law.‟”‟” (Shirk v. Vista Unified School
Dist. (2007) 42 Cal.4th 201, 211 (Shirk).) The statutory
language is generally the most reliable indicator of legislative
intent. However, if the statutory language may reasonably be
given more than one interpretation, courts may consider various
extrinsic aids, including the purpose of the statute, the evils
to be remedied, the legislative history,4 public policy, and the
statutory scheme encompassing the statute. (Shirk, supra, at
p. 211.)
4 Both parties and their amicus curiae have requested that we
take judicial notice of various legislative materials relevant
to the history of section 340.1. We have granted these
requests. (See Doe v. City of Los Angeles, supra, 42 Cal.4th at
p. 544, fn. 4.)

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II. Analysis
“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. etc. Co. v. Pacific Gas &
Elec. Co. (1953) 41 Cal.2d 785, 787.)
A. The Church Defendants Are Section 340.1, Subdivision (b)(2) Defendants
Section 340.1 contains varying limitations periods for
bringing actions for childhood sexual abuse against different
groups of defendants. Interpreting the statute is rendered more
complicated by the fact that these limitations periods have been
amended several times over a period of years. To clarify our
analysis at the outset, we observe that the Church defendants
are being sued as defendants identified in subdivision (b)(2) of
the statute. “The words of subdivision (b)(2) create three
conditions that must be met before it applies to a particular
case: (1) the nonperpetrator defendant „knew or had reason to
know, or was otherwise on notice‟; (2) that the perpetrator--‟an
employee, volunteer, representative, or agent‟--had engaged in
„unlawful sexual conduct‟; and (3) „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.‟”
(Doe v. City of Los Angeles, supra, 42 Cal.4th at p. 545.)

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Here, plaintiff alleged that the Church defendants knew or
should have known of Doe 4‟s past sexual abuse of minors and
other pupils under his charge and failed to take reasonable
safeguards to prevent him from coming into contact with children
such as plaintiff; on the contrary, it is alleged that
defendants concealed the abuse and knowingly failed to take
reasonable steps to prevent Doe 4 from sexually abusing
plaintiff.
Accordingly, as all parties agree, plaintiff seeks to avail
himself of the statute of limitations applicable to subdivision
(b)(2) defendants.5
B. The Issue in Controversy
Plaintiff claims his action is timely based on the “delayed
discovery” provision of section 340.1, which permits bringing an
action against subdivision (b)(2) defendants until eight years
from 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 is later.
(§ 340.1, subds. (a), (b)(1), (2).) However, subdivision (c) of
5 In the course of this opinion, we will use the term
“subdivision (b)(2) defendants,” interchangeably with
“intentional entity defendants” or “intentional nonabuser
defendants.” We use the word “intentional” not in the sense
that these defendants intended the sexual abuse to occur, but
that they had knowledge or constructive notice of specific
instances of past unlawful sexual conduct by the individual
currently accused of sexual misconduct toward the plaintiff.
(See Doe v. City of Los Angeles, supra, 42 Cal.4th at p. 549.)

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section 340.1 also features a one-year “window” for reviving
claims that had already lapsed by virtue of the statute of
limitations. It provides: “Notwithstanding any other provision
of law, any claim for damages described in [subdivision (a)(2)
or (3)] that is permitted to be filed pursuant to [subdivision
(b)(2)] 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.” (Italics added.)
Because he did not file his complaint until December 2006,
plaintiff undisputedly missed the one-year revival deadline
provided for in subdivision (c).
Plaintiff contends the delayed discovery provision applies
to the present claim, such that his causes of action did not
even accrue until the summer of 2005 when he recovered his
memory of the sexual abuses perpetrated by Doe 4.
Alternatively, he argues that his claim was timely under
equitable, common law theories of delayed discovery or delayed
accrual.
The Church defendants maintain that the Legislature gave
plaintiffs in D.D.‟s position only one chance to bring childhood
sexual abuse claims that had previously lapsed--the calendar
year 2003--and plaintiff‟s failure to avail himself of that
opportunity forever barred his action. Moreover, defendants say
the Legislature has decisively precluded use of common law

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doctrines of delayed discovery by deleting language in section
340.1 that had previously permitted their application.
Resolution of the dispute requires us to take a circuitous
journey through the history of the statute.
C. History of Section 340.1
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 (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 brought timely 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 alleged molestation took place in 1976 when
plaintiff was 11 years old, he had until his 19th birthday to
file suit. He did not. Accordingly, the statute of limitations
expired on plaintiff‟s claim against the Church defendants in
either 1984 or 1985.
1. Enactment of section 340.1.
In 1986, the Legislature enacted section 340.1, providing
for a three-year statute of limitations for sexual abuse by a
relative or household member of a child under the age of 14

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years. (Former § 340.1, added by Stats. 1986, ch. 914, § 1,
pp. 3165-3166; see Shirk, supra, 42 Cal.4th at p. 207.) The
statute also included a revival provision, permitting the new
rule to be applied to any action commenced after January 1,
1987, that would otherwise have been barred by the statute of
limitations prior to that date (former § 340.1, subd. (e)), and
contained additional language permitting the courts to apply
equitable doctrines of delayed discovery.6 However, none of
these provisions applied to nonperpetrator defendants such as
the Church defendants. Accordingly, plaintiff‟s claim remained
time-barred.
2. 1990 amendments.
In 1990, section 340.1 was expanded to cover any person who
sexually abused a child. (Shirk, supra, 42 Cal.4th at p. 207.)
The Legislature also extended the statute of limitations to
eight years from the date the victim “attains the age of
majority” (i.e., age 26) or three years from the date the victim
“discovers or reasonably should have discovered that
6 Subdivision (d) of former section 340.1 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.” (See Evans v. Eckelman
(1990) 216 Cal.App.3d 1609, 1614 (Evans).) The language was
retained as subdivision (l) in 1990: “Nothing in the [1990]
amendments . . . shall be construed to preclude the courts from
applying equitable exceptions to the running of the applicable
statute of limitations, including exceptions relating to delayed
discovery of injuries, with respect to actions commenced prior
to January 1, 1991.” (Amended by Stats. 1990, ch. 1578, § 1,
p. 7552.)

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psychological injury or illness occurring after the age of
majority was caused by the sexual abuse.” (§ 340.1, former
subd. (a); see Shirk, supra, at p. 207.) A plaintiff over the
age of 26 years had to provide a certificate of merit from a
mental health practitioner. (§ 340.1, former subds. (a), (b), &
(d), as amended by Stats. 1990, ch. 1578, § 1, pp. 7550-7551;
Shirk, at p. 207.) Again, because the amendment did not apply
to nonabuser defendants, it did not affect plaintiff‟s claim.
3. 1994 amendments.
In 1994, the Legislature again amended section 340.1 by
expressly providing that the 1990 amendments “apply to any
action commenced on or after January 1, 1991, including any
action otherwise barred by the period of limitations in effect
prior to January 1, 1991, thereby reviving those causes of
action which had lapsed or technically expired under the law
existing prior to January 1, 1991.” (§ 340.1, former subds.
(o)-(p), added by Stats. 1994, ch. 288, § 1, p. 1928.)
But while the Legislature giveth with one hand, it taketh
away with the other. The 1990 section 340.1, subdivision (l),
which had permitted the courts to apply “equitable exceptions to
the running of the applicable statute of limitations,” including
those relating to “delayed discovery of injuries” (see fn. 6,
ante), was deleted. (Stats. 1994, ch. 288, § 1, p. 1928; see
Historical and Statutory Notes, 13C West‟s Annot. Code Civ.
Proc. (2006 ed.) foll. § 340.1, p. 173 (Historical and Statutory
Notes).) As we shall see, that deletion was significant.

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4. 1998 and 1999 amendments.
In 1998, the Legislature amended section 340.1 to include,
for the first time, claims alleging childhood sexual abuse
against persons or entities other than the perpetrator.
(§ 340.1, former subd. (a)(2) & (3), added by Stats. 1998, ch.
1032, § 1; Mark K. v. Roman Catholic Archbishop (1998)
67 Cal.App.4th 603, 610, fn. 4.) The amendment, which permitted
suits against parties whose negligent or intentional acts were a
“legal cause” of a minor‟s sexual abuse, also created a firm
time cap for actions against nonperpetrator defendants,
requiring them to be brought not 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.)
Although the 1998 legislation permitted tort claims against
intentional nonabusers such as the Church defendants, plaintiff
was by then 33 or 34 years old, well above the age 26 time cap.
Thus, he was too old to take advantage of the change in the law.
(Hightower, supra, 142 Cal.App.4th at pp. 765-766.)
The Legislature again amended section 340.1 in 1999,
clarifying that its 1998 changes relating to the liability of
nonabuser defendants applied only to actions begun on or after
January 1, 1999, or if filed before that time, actions still
pending as of that date, “including any action or causes of
action which would have been barred by the laws in effect prior
to January 1, 1999.” (See Shirk, supra, 42 Cal.4th at p. 208,

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quoting § 340.1, former subd. (s), added by Stats. 1999, ch.
120, § 1.)
5. 2002--the final amendments.
In 2002, the Legislature put one final flourish on section
340.1. (Stats. 2002, ch. 149, § 1.) The age 26 cap was
retained (§ 340.1, subd. (b)(1)) except in cases such as this,
where a nonabuser defendant knew or had reason to know of its
agent‟s or employee‟s unlawful misconduct and failed to take
reasonable steps to protect others from the employee‟s predatory
behavior. (§ 340.1, subd. (b)(2).) In those cases, the statute
provided that the limitations would run until the later of the
plaintiff‟s 26th birthday or three years after the plaintiff
discovers or should have discovered that his psychological
injuries were the result of childhood sexual abuse. At the same
time, the Legislature added current subdivision (c) to section
340.1, which expressly revived lapsed claims against intentional
entity defendants that had been barred due to the expiration of
the statute of limitations. For those claims, the Legislature
opened up a one-year window period for the bringing of new
actions, beginning on January 1 and ending on December 31, 2003.
(Hightower, supra, 142 Cal.App.4th at p. 766.)
Plaintiff‟s present claim was unquestionably revived by the
2002 legislation. Thus, he had one obvious, legislatively
sanctioned opportunity to bring his lapsed causes of action
against the Church defendants during the calendar year 2003.
However, no suit was filed during that time.

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D. Resolution of the Statutory Dispute
Despite having failed to avail himself of the one-year
revival window in 2003, plaintiff contends his lawsuit is timely
under the “delayed discovery” provision of section 340.1,
subdivision (a)--“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”--which was made
applicable to subdivision (b)(2) defendants in 2002 by virtue of
subdivision (c). Plaintiff argues that, because he repressed
all memory of the abuse until the summer of 2005, his claim did
not accrue until then. The merit of this argument turns on
whether the Legislature intended the courts to apply the three-
year delayed discovery provision retroactively, to claims
against intentional entity defendants that had previously
lapsed.
In general, a statute will be construed as prospective
unless there is clear legislative intent that it apply
retroactively. (Myers v. Philip Morris Companies, Inc. (2002)
28 Cal.4th 828, 844; Evangelatos v. Superior Court (1988)
44 Cal.3d 1188, 1207.) Such intent has been found where there
is express language of retroactivity, or where extrinsic sources
undisputedly demonstrate that the Legislature intended the
statute to be retroactive. (Evangelatos, supra, 44 Cal.3d at
p. 1209 [“[I]n the absence of an express retroactivity
provision, a statute will not be applied retroactively unless it

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is very clear from extrinsic sources that the Legislature . . .
must have intended a retroactive application”].)
The rule is even stricter in the case of legislative
changes to a statute of limitations. “[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.)
In this case, the three-year delayed discovery provision
contains no unmistakable, express language of retroactivity.
Nor is there anything in the legislative history of section
340.1 that indisputably shows a retrospective application was
intended. On the contrary, an examination of the history of the
statute points to the opposite conclusion.
Whenever it has amended section 340.1, the Legislature has
been clear about whether the courts may apply new limitations
periods retroactively. In 1990, the Legislature inserted
language containing a limited revival of actions commenced after
1987. The 1994 amendment provided that the liberalized
discovery rule enacted in 1990 shall “apply to any action
commenced on or after January 1, 1991, including any action

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otherwise barred by the period of limitations in effect prior to
January 1, 1991, thereby reviving those causes of action which
had lapsed or technically expired under the law existing prior
to January 1, 1991.” (§ 340.1, former subds. (o)-(p), added by
Stats. 1994, ch. 288, § 1, p. 1928, italics added.) This
amendment was added to overrule David A., supra, 20 Cal.App.4th
at page 286, a case that had held that the 1990 amendment did
not revive lapsed claims. (Legis. Counsel‟s Dig., Assem. Bill
No. 2846 (1993-1994 Reg. Sess.) 5 Stats. 1994, Summary Dig.,
p. 111.)
In 1999, the Legislature clarified that its 1998 changes
relating to the liability of nonabuser persons or entities were
to be applied to actions commenced on or after or pending as of
January 1, 1999, “„including any action or causes of action
which would have been barred by the laws in effect prior to
January 1, 1999.‟” (Shirk, supra, 42 Cal.4th at p. 208, quoting
§ 340.1, former subd. (s), added by Stats. 1999, ch. 120, § 1.)
Finally, the 2002 amendments, while removing the age 26 cap
on subdivision (b)(2) defendants, explicitly provided that, as
to lapsed claims, the applicable limitations period “is
revived,” provided suit was commenced within one year of
January 1, 2003. (§ 340.1, subd. (c), italics added.)
This sequence demonstrates that the Legislature knows
precisely how to specify whether and under what conditions a
newly enacted statute of limitations period should be applied to
revive lapsed claims. In 2002, the Legislature opened the gates

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to lapsed claims against subdivision (b)(2) defendants, but only
for a limited one-year period. The enactment, in clear
stentorian language, of a one-year revival period, announced to
the world that these types of claims must be brought within that
period or forever remain in repose. It would be illogical to
infer that the Legislature silently intended that lapsed claims
not filed within the window period could nevertheless be revived
through the back door by use of the delayed discovery rule.
Our conclusion is in accord with the result in Hightower.
There, a prisoner who had allegedly been molested by a priest in
the early 1970‟s claimed that his suit against a Catholic
bishop, filed in April 2004, was timely because the delayed
discovery rule of section 340.1, subdivision (a) applied.
(Hightower, supra, 142 Cal.App.4th at pp. 761, 763, 767.) The
Court of Appeal, Second Appellate District, Division Eight,
flatly rejected the notion, stating, “When the Legislature first
applied the delayed discovery rule to entity defendants like the
bishop in 1998, those claims were subject to the outer limit of
the plaintiff‟s 26th birthday, meaning that his claims remained
time-barred. Effective 2003, the Legislature extended the
limitations period for claims such as Hightower‟s to the later
of the plaintiff‟s 26th birthday or the date when the plaintiff
discovered that his psychological injuries were caused by sexual
abuse. At the same time, the Legislature revived for only one
year all such claims that were already time-barred. The
Legislature therefore drew a clear distinction between claims

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that were time-barred and those that were not. Hightower‟s
interpretation would obliterate that distinction by allowing his
time-barred claim to take advantage of the new limitations
period. Therefore, the new delayed discovery rule does not
revive Hightower‟s previously lapsed claims.” (Hightower, at
pp. 767-768, italics added.)7
Plaintiff‟s argument suffers from the same infirmity as
Hightower‟s. It presupposes an implicit, unexpressed intent to
enact a delayed accrual rule retroactively, contrary to settled
rules of statutory interpretation and despite the Legislature‟s
unambiguous intent to treat lapsed and unlapsed claims
differently.
The unavailability of section 340.1‟s delayed accrual rule
to revive lapsed claims appears to have been acknowledged by the
California Supreme Court in Shirk. Shirk, a 41-year-old
plaintiff in 2003, claimed she was the victim of sexual
misconduct by her male teacher during the 1978-1979 school year.
She sued the school district that employed him on the basis that
it knew or should have known that he was a sexual predator.
Shirk filed a government tort claim in September 2003, the date
on which she allegedly “discovered” the connection between her
7 While it is true that the Hightower court also rejected the
plaintiff‟s claim on the alternative ground that the plaintiff‟s
allegations were insufficient to trigger the delayed discovery
rule, that conclusion was dictum, since the court had already
ruled that his complaint was time-barred. (Hightower, supra,
142 Cal.App.4th at p. 768.)

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psychological problems and the sexual abuse. The trial court
sustained a demurrer without leave to amend on the ground that
Shirk failed to file timely a government tort claim in 1980.
(Shirk, supra, 42 Cal.4th at pp. 205-206.)
Although the suit was brought under the 2003 “revival”
window set forth in section 340.1, Shirk still faced the problem
of having failed to file a government claim within the statutory
period.8 She attempted to steer around this obstacle by relying
on the delayed discovery rule in subdivision (a), contending
that her claim did not “accrue” until she discovered that the
sexual abuse was the cause of her psychological injuries.
(Shirk, supra, 42 Cal.4th at p. 206.) After reviewing the
history of the statute, the Shirk court reaffirmed the long-
settled rule that a cause of action for sexual abuse accrues at
the time of the molestation. (Id. at p. 210.) Finding no
indication in either the language or history of the statute that
the Legislature‟s magnanimity in liberalizing the limitations
period for civil actions for childhood sexual abuse also
included an intent to excuse or delay the time for filing tort
claims against governmental entities, the state‟s high court
8 As the Shirk court explained, “such claims must be presented
to the government entity no later than six months after the
cause of action accrues. (Gov. Code, former § 911.2, as amended
by Stats. 1987, ch. 1208, § 3, p. 4306.) Accrual of the cause
of action for purposes of the government claims statute is the
date of accrual that would pertain under the statute of
limitations applicable to a dispute between private litigants.”
(Shirk, supra, 42 Cal.4th at pp. 208-209.)

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held Shirk‟s action was properly dismissed. (Id. at pp. 211-
213.)
Had the state Supreme Court accepted the argument advanced
by Shirk--and repeated by plaintiff here--that section 340.1
actions against intentional entity defendants do not even accrue
until discovery of the psychological abuse, Shirk‟s claim would
have been ruled timely, since the time for filing a government
claim runs from the date the cause of action accrues. (See fn.
8, ante.) The fact that the court adhered to the general rule
that the claim accrued when the molestations occurred
constituted an implied rejection of the notion that lapsed
childhood sexual abuse claims can “accrue” a second time under a
delayed discovery theory.9
Although unnecessary to our decision, legislative materials
surrounding the enactment of Senate Bill No. 1779 (2001-2002
Reg. Sess.), of which we have taken judicial notice, confirm our
interpretation. A summary of the 2002 amendments prepared for
the Assembly Judiciary Committee cites two aspects of the bill:
first, “[r]etroactive application and revival of lawsuits,” to
“create a one-year window” for victims of childhood sexual abuse
to bring lawsuits against intentional entity defendants that
would otherwise have been barred by the age 26 cap; and, second,
9 This “second accrual” theory was advocated by Justice Werdegar
in her dissenting opinion. (Shirk, supra, 42 Cal.4th at
pp. 214-216 (dis. opn. of Werdeger, J.).) No other justice,
however, joined in that dissent.

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“Prospective application: People who discover their adulthood
trauma from the molestation after the effective date of the bill
will have three years from the date the victim discovers or
reasonably should have discovered that the adulthood trauma was
caused by the childhood abuse.” (Italics added.)
The statement on the floor by the author of Senate Bill
No. 1779 (2001-2002 Reg. Sess.), John Burton, mirrors this
summary. Senator Burton told his colleagues that the bill would
allow actions to be filed after the victim‟s 26th birthday
against “a person or entity that knew or had reason to know of
any complaint against an employee for unlawful sexual conduct
and failed to take reasonable steps to avoid similar acts . . .
in the future. . . . [¶] This bill also revives actions that
were previously barred by the statute of limitations and allows
those actions to be filed within one year of the effective date
of this bill.” (Italics added.)
These background materials support our conclusion that
while the Legislature intended to lift the age 26 cap
prospectively as a prophylactic measure, it sought to revive
lapsed actions only for a limited one-year period.
Amicus curiae counsel for plaintiff discerns a contrary
intent from the Legislature‟s retention and redesignation of
section 340.1, former subdivision (s) as subdivision (u) in
2002. Current subdivision (u) (originally enacted as
subdivision (s) in 1999) states, in relevant part: “The
amendments to subdivision (a) of this section, enacted at the

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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.) Amicus argues that by preserving subdivision
(u) in 2002, the Legislature “gave life to the retroactive
application of subdivisions (a)(2) and (3),” thereby evincing an
intent to apply delayed discovery to claims against
nonperpetrator defendants, regardless of when the sexual abuse
took place.
Amicus‟s theory ignores the fact that subdivision (u)
refers only to the amendments to section 340.1, subdivision (a)
enacted in the 1997-1998 Regular Session. That legislation
capped the limitations period at age 26. When, for the first
time, it lifted the age 26 cap and permitted a delayed discovery
rule to be applied to intentional nonabusers, the Legislature
could easily have expressed its intent that the delayed
discovery provision of subdivision (a) be made applicable to
claims that would “otherwise have been barred” by preexisting
laws. The fact that it did not, but instead revived such claims
for only a limited one-year period, refutes amicus‟s argument.
E. Common Law Delayed Discovery Theories
Both plaintiff and amicus curiae counsel assert that,
regardless of whether section 340.1 expressly permits it,
plaintiff may avail himself of the common law delayed discovery

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doctrine, 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.)
Their primary authority is Evans, supra, 216 Cal.App.3d 1609.
Evans was a case where the adult plaintiffs sued their uncle and
former foster father for sexual abuse they suffered in their
childhood. (Id. at p. 1612.) They 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” doctrine 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 expressly gave courts permission to apply equitable
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

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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.)
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 delayed accrual doctrine.10 That deletion has been
preserved in all subsequent amendments to the statute.
Amicus curiae on behalf of plaintiff dismisses the deletion
of section 340.1, former subdivision (d) as “removal of
surplusage.” We disagree. Cases such as Evans had applied
equitable, common law principles of delayed discovery to avoid
normal rules regarding accrual in cases of childhood abuse.
This practice could easily have continued unabated unless the
Legislature put a stop to it.
“„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, quoting People v. Valentine (1946) 28 Cal.2d
121, 142.) “„Where the Legislature omits a particular provision
10 In 1990, the Legislature reenacted section 340.1, former
subdivision (d) in substantially the same form as subdivision
(l). (See fn. 6, ante.) The 1994 bill deleted this language
from section 340.1 altogether. (Historical and Statutory Notes,
supra, foll. § 340.1, pp. 172-173.)

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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.)
In light of these rules, we cannot view the elimination of
section 340.1, former subdivision (d) as a mere housekeeping
measure. By withdrawing its previous sanction of common law
principles at the same time it made it easier for victims of
childhood sexual abuse to sue, the Legislature drew a line in
the sand, declaring an end to judicial application of common law
delayed discovery theories that were not expressly set forth in
the statute.11
11 Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th
1405, upon which plaintiff and his amicus heavily rely, does not
persuade us otherwise. In Curtis T., a guardian ad litem filed
a government claim for damages against Los Angeles County on
behalf of a 12-year-old child, based on molestations that
occurred in a foster home when he was between five and eight
years old. (Id. at pp. 1411-1413). The Court of Appeal for the
Second Appellate District, Division One, applying principles of
equitable delayed discovery, held that the claim was timely as
long as the guardian could establish that she could not, with
reasonable diligence, have discovered the molestations earlier.
(Id. at pp. 1422-1423.) Unlike actions against private parties,
the statute of limitations to file a minor‟s claim against a
public entity is not automatically tolled until the minor
reaches the age of majority. (See § 352, subd. (b).) The
Curtis T. court emphasized that its decision was limited to the
filing of government claims against public entities on behalf of
minors who, because of their tender age, may not appreciate the
wrongfulness of what was done to them. (Curtis T., at pp. 1409,
1422.) It also acknowledged that the limitations period for

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We conclude that plaintiff may not rely on common law
delayed discovery rules that are inconsistent with the
limitations periods expressly set forth in section 340.1.
Our conclusion also disposes of plaintiff‟s contention that
his complaint is timely under statutes of limitations applicable
to assault and battery. (§§ 335, 335.1.) Such an argument
presupposes that plaintiff‟s causes of action did not accrue
until his memory of these torts was awakened in 2005. It
therefore relies on a theory of equitable delayed accrual.
F. Conclusion
Plaintiff‟s claim against the Church defendants arising
from childhood sexual abuse accrued when the molestations
occurred. Because he failed to file suit by age 19, the statute
of limitations expired. (Shirk, supra, 42 Cal.4th at p. 210;
Doe v. Bakersfield City School Dist., supra, 136 Cal.App.4th at
p. 567, fn. 2.) Plaintiff‟s lapsed claims remained in repose
until they were revived during the calendar year 2003, but he
failed to avail himself of the opportunity to file suit within
the statutorily advertised window period.
Plaintiff‟s allegations of repressed memory do not save his
complaint, because the delayed discovery rule applicable to
intentional nonabuser defendants that was added to section 340.1
adult plaintiffs to file civil actions based on childhood sexual
abuse was governed by section 340.1, a statute that it had no
occasion to interpret. (Curtis T., at pp. 1419-1420.) Opinions
are not authority for issues they do not consider. (Stoll v.
Shuff (1994) 22 Cal.App.4th 22, 27.)

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in 2002 did not have retrospective effect. Consequently, it did
not operate to revive decades-old claims such as plaintiff‟s,
which had lapsed due to the running of the statute of
limitations.
DISPOSITION
The judgment is affirmed. Defendants are awarded costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ , J.
We concur:
SCOTLAND , P. J.
BLEASE , J.

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