Aaronoff v. Martinez-Senftner

• Decision Date: 10 February 2006
• Docket Number: No. C049246.,C049246.
• Citation: 39 Cal.Rptr.3d 137,136 Cal.App.4th 910
• Court: California Court of Appeals Court of Appeals
• Parties: V.J. AARONOFF, Plaintiff and Appellant, v. Gloria MARTINEZ-SENFTNER et al., Defendants and Respondents.

39 Cal.Rptr.3d 137

136 Cal.App.4th 910

V.J. AARONOFF, Plaintiff and Appellant, v. Gloria MARTINEZ-SENFTNER et al., Defendants and Respondents.

No. C049246.

Court of Appeal, Third District.

February 10, 2006.

Steven J. Aaronoff, Irvine, for Plaintiff and Appellant.

Martinez-Senftner Law Firm, Gloria P. Martinez-Senftner, Roseville, and Ellen C. Dove, Sacramento, for Defendants and Respondents.

BLEASE, Acting P.J.

This is an appeal from a judgment in favor of defendants James Senftner (James) and Gloria Martinez-Senftner (Gloria), the plaintiff's parents, after they successfully demurred to a second amended complaint.¹ The 40-year-old plaintiff sought damages from her parents for sexual abuse inflicted by her father when she was a child. The trial court found the claims barred by the statute of limitations, Code of Civil Procedure section 340.1.²

Section 340.1, subdivisions (a) and (b) provide that a plaintiff must bring an action for damages caused by childhood sexual abuse before the age of 26 or within three years of the date of discovery, whichever is later. A 1997 action by the plaintiff against her parents was dismissed pursuant to these provisions. However, a recent amendment to section 340.1 permits a revival of the action, notwithstanding a prior termination on the basis of the statute of limitations, if commenced in 2003 against a third party who failed to take preventive action after notice of the unlawful sexual conduct "by an employee, volunteer, representative, or agent" of the third party. (§ 340.1, subds. (b)(2) & (c); Stats.2002, ch. 149, § 1.)

At issue in this appeal is whether the revival statute applies to Gloria. The plaintiff claims that James was the agent of Gloria based on amendments to the complaint which added business entities, in which James and Gloria were partners and officers, as the situs of some of the alleged molestations. The business entities were not served and the trial court ruled the addition of the business entities did not change the analysis as to the individual defendants. It sustained a demurrer in their favor and entered judgment thereon.

We shall conclude that the alleged sexual abuse arose out of the parental relationship between James and the plaintiff, was not a product of the parties' relationship with the business entities, that James, as the perpetrator, is not a subject of the revival statute, and that the relationship of James to Gloria, as husband and wife, is not an agency relationship within the meaning of section 340.1, subdivision (b)(2). Accordingly, the demurrers were properly sustained because the action is barred by the judgment in the earlier action which shows the action was dismissed under the provisions of section 340.1, subdivision (a).

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, plaintiff brought an action against defendants James Senftner and Gloria Martinez-Senftner for childhood sexual abuse and intentional infliction of emotional distress.³

The 1997 action alleged James and Gloria were plaintiff's parents and that James repeatedly sexually abused plaintiff when she was between the ages of five and twelve. A judgment was entered in favor of James and Gloria, following the grant of summary adjudication of the sexual abuse claims, on the ground she was over the age of 26 and discovered her injury and its alleged cause and effect no later than 1989, making her claims untimely under section 340.1, subdivision (a).⁴

In 2002, the Legislature amended section 340.1. (Stats.2002, ch. 149, § 1.)⁵ The amendment revived for the one year period beginning January 1, 2003, any claim permitted to be filed under subdivision (b)(2) "that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired...." (Id. at subd. (c).) The revival is limited to a party "on notice, of any unlawful sexual conduct by an employee, volunteer representative, or agent" of the party, who fails to take reasonable steps to prevent the conduct. (§ 340.1, subd. (b)(2).)

Relying on the revival statute, plaintiff filed an action against her parents and Doe defendants on December 31, 2003, alleging claims for childhood sexual abuse and intentional infliction of emotional distress based on the abuse.⁶ The first amended complaint alleged Gloria and James were husband and wife and had established various business entities. It alleged that James sexually abused plaintiff from the time she was four years old until she was twelve years old. It also alleged that Gloria was aware of the abuse but took no steps to prevent it because she did not wish to threaten her financial prosperity.

Defendants claim they successfully demurred to the first amended complaint although the record does not contain the demurrer to that complaint. In any event, plaintiff filed a second amended complaint in which three corporate entities were substituted for three of the "Doe" defendants. It alleged that plaintiff was an employee of the business entities and that James sexually abused her during business hours on business premises. Plaintiff deleted from the complaint any reference to the fact she is the defendants' daughter. The complaint was not served on the business entities.

The second amended complaint makes the following allegations. James and Gloria were business partners. James was a director, officer, and employee of three corporate car dealerships: Senftner Chevrolet, Oldsmobile, Pontiac, Inc., a South Dakota corporation operating in Herreid, South Dakota (Senftner Chevrolet); Senftner Rotary Motors, Inc., an Iowa corporation operating in Des Moines, Iowa (Senftner Rotary); and Senfco Auto Center, Inc., an Iowa corporation operating in Des Moines and Sioux City, Iowa (Senfco). Gloria was an officer and employee of all three corporate car dealerships.

The second amended complaint alleges that when plaintiff was approximately eight years old, James and Gloria hired her to work as an employee of Senfco in Sioux City and Senftner Chevrolet in Herreid. Gloria and James required plaintiff to work at the car dealerships, where she stamped mail, filed business records, delivered documents, served as a passenger in test drives, answered telephones, and cleaned the premises. When plaintiff was approximately 11 years old, James and Gloria hired her to work for Senftner Rotary, performing the same tasks she had performed for Senfco.

From the time plaintiff was approximately four years old and continuing until she was approximately 13 years old, James sexually abused her. However, the abuse did not occur on the premises of the business entities until plaintiff was 10 years old. Gloria was aware of the sexual abuse and personally witnessed several acts of abuse. Many of the acts occurred on the premises of the named businesses, during business hours. Gloria failed to take reasonable steps or to implement reasonable safeguards to prevent or avoid the acts of unlawful sexual conduct by James. From the time plaintiff was a pre-adolescent until long after she was an adult, Gloria and James told plaintiff James was a doctor, and that it was acceptable for him to examine her body.

Based upon the above facts, the second amended complaint alleges a cause of action against all defendants (James and Gloria, and Senftner Chevrolet, Senftner Rotary, and Senfco) for childhood sexual abuse. It alleges "Gloria was fully aware of the extent and scope of the depraved pattern of sexual abuse carried out by James against plaintiff, and hence was his aider, abettor and co-conspirator in carrying out and concealing the sexual abuse and molestation. Furthermore, Gloria was an officer and employee of defendants Senftner Chevrolet, Senftner Rotary, and Senfco, and had a duty to take reasonable safeguards to prevent employees and/or agents of those businesses from committing acts of unlawful sexual conduct against minors." The complaint also alleges a cause of action against all defendants for intentional infliction of emotional distress. The second amended complaint was served only on Gloria.⁷

Gloria and James demurred to the complaint. The trial court sustained the demurrer, finding plaintiff's claims against the individual defendants Gloria and James barred by the statute of limitations. The court said that it made no ruling regarding the business entity defendants as they were not parties to the demurrer.

Plaintiff filed a timely appeal from the judgment entered following the sustaining of the demurrer.

DISCUSSION

I Introduction

This appeal arises from a judgment entered following the sustaining of a demurrer by James and Gloria to the second amended complaint. The sole issue is whether the action against the parents is within the revival provisions of section 340.1, subdivisions (b)(2) & (c). We shall conclude it is not.

The action against James is revived only if subdivision (c) of section 340.1 applies to the perpetrator of a childhood sexual abuse. The action against the parents is revived, as to Gloria, only if it meets the requirements of subdivision (b)(2), that the childhood sexual abuse arose out of a relationship between James and Gloria in which James was "an employee, volunteer, representative, or agent" of Gloria.

Whether that is the case turns on the allegations of the second amended complaint, aided by matters of which we may take judicial notice.

II Judicial Notice

A demurrer based on a statute of limitations is appropriate if the ground appears on the face of the complaint or from matters of which the court may or must take judicial notice. (Black v. Department of Mental Health (2000) 83 Cal.App.4th 739, 745, 100 Cal.Rptr.2d 39; § 430.30.) Judicial notice may be taken of any court record. (Evid.Code, § 452, subd. (d).)

Defendants requested that the trial court take judicial notice of the record in the 1997 action, including the order granting summary judgment, which stated, "plaintiff discovered her injury and its alleged cause and...