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Childhood sexual assault claim revived under new Calif law
February 6, 2020Applying a newly enacted state law, a California appellate court reversed a lower court’s finding that a former student’s sexual assault claim against a school district was time-barred. The state law, A.B. 218, which became effective Jan. 1, 2020, eliminates the requirement for plaintiffs bringing childhood assault claims to comply with California’s claims presentation requirement when seeking damages from public entities. San Diego attorney Irwin Zalkin, who represented the plaintiff, noted that the court’s decision highlights the importance of this new legislation in enabling victims of childhood abuse to obtain justice. (Roe v. Victor Elem. Sch. Dist., 2020 WL 64717 (Cal. Ct. App. Jan. 7, 2020).)
Roe was a first grader at Victor Elementary School District in 2005, when her art teacher, Rogelio Cardenas, began to molest her. Cardenas threatened Roe not to tell anyone, and she only revealed the abuse to a therapist almost 10 years later, in August 2014. After the therapist reported the abuse and police investigated, Roe learned that Cardenas had since been incarcerated.
In May 2015, Roe filed an administrative claim with the school district for damages arising from the abuse, as well as an application for leave to file a late claim. She alleged that she “did not appreciate the wrongfulness of [the] conduct” at the time it occurred, and that consequentially, her claim only accrued when she revealed the abuse to the therapist. Roe also argued that because she was a minor during the entire claims presentation period, the district was legally obligated to grant her application for a late claim under Cal. Gov. Code §911.6(b)(2).
Nevertheless, the school district denied Roe’s claim as untimely. After unsuccessfully refiling her application to present a late claim with the district, Roe filed suit in California state court in September 2015. Roe again alleged that her tort claim had accrued only after she revealed the abuse to her therapist in 2014 and that she had been previously “incapable of ascertaining that the perpetrator’s conduct was harmful to her, or that she suffered an injury.” The school district countered that Roe’s cause of action had accrued, at the latest, in August 2014, but that she had failed to petition the court for relief from the claims presentation requirement within six months of the school district’s denial of her claim, as required under Cal. Gov. Code §946.6.
Relying on E.M. v. Los Angeles Unified School District (125 Cal. Rptr. 3d 200 (2011)), Roe argued that her claim should not be time-barred. E.M. had filed suit five months after the school district had rejected her claim but had not petitioned for leave to file her government tort claim under §946.6 until seven months after the denial. The appellate court had found that E.M.’s claim was not barred by §946.6’s six-month filing period because the claims presentation requirement was satisfied by the attachment of her claim to her late application.
However, while Roe’s case was pending, the California Supreme Court expressly disapproved E.M., finding “an application for leave to provide untimely notice” insufficient to overcome the requirements of §946.6. (J.M. v. Huntington Beach Union High Sch. Dist. (214 Cal. Rptr. 3d 494 (2017)). Minor plaintiffs, the state supreme court said, are still obligated to timely file a petition for relief from the government claims presentation requirement even if the government entity wrongfully denied their late claim application. Under J.M., Roe should have sought relief from the claims presentation requirement within the six month time period rather than just filing her complaint, the trial court said. It ruled her case was time-barred, and Roe appealed.
While the appeal was pending, California enacted A.B. 218 (2019), which eliminated the requirement for childhood sexual assault victims to comply with the §946.6 claims presentation requirement. The court rejected the school district’s request to act quickly and apply old law before the new law’s Jan. 1, 2020, effective date, highlighting the court’s deference to the legislature in this policy matter. The court said that despite the “presumption against retroactive application of new statutes,” A.B. 218 applies to Roe’s claims because the law expressly states it applies retroactively to all pending litigation, “including any. . . causes of action that would have been barred by the laws in effect before the date of enactment.” Although Roe did not petition the court for relief from the claims presentation requirement before filing suit, this no longer bars her claim because of A.B. 218, the court concluded.
Zalkin, who represents Roe, described how A.B. 218 will benefit “child sexual abuse victims whose voices have been silenced by artificially short statutes of limitations. The law is finally catching up to the reality of the impact of child sexual abuse on the psyche of child victims. The data shows that most sexual assault victims never report what happened to them for multiple reasons, including fear, embarrassment, and guilt. It takes tremendous courage for child victims to come forward, and to expect them to make a claim in six months, or even six years is not realistic given the insidious and latent effects of the harm caused them.” Zalkin added, “In most cases, it is not until well into adulthood that child victims of sexual abuse even begin to recognize the causal relationship between their abuse and adult psychological injuries and illnesses. Through the unrelenting efforts of survivors and their advocates, legislatures around the country, including California, are beginning to understand this delayed response and are reforming their statutes of limitations to more closely reflect the reality that victims of childhood sexual abuse face.”
Zalkin, who has represented more than 500 survivors of childhood sexual abuse and sexual violence throughout the country, said he “urges all states to review and consider their statutes of limitations, criminal and civil, affecting the rights of child victims of sexual abuse and to make sure that this deserving class of tort victims is afforded a fair opportunity to seek accountability from those who hurt them and those who allowed that to happen to them.”