Derose v. Carswell

• Decision Date: 07 December 1987
• Docket Number: No. H002314,H002314
• Court: California Court of Appeals Court of Appeals
• Parties: , 56 USLW 2452 Dianne DeROSE, Plaintiff and Appellant, v. Calvin R. CARSWELL, Defendant and Respondent.

Page 368

242 Cal.Rptr. 368

196 Cal.App.3d 1011, 56 USLW 2452

Dianne DeROSE, Plaintiff and Appellant, v. Calvin R. CARSWELL, Defendant and Respondent.

No. H002314.

Court of Appeal, Sixth District, California.

Dec. 7, 1987.

Review Denied March 17, 1988.

George F. Camerlengo, Thirkell, Pierpont & Cretan, San Mateo, for plaintiff and appellant.

Robert H. Ames, Pioda, Bryan, Ames, Helfrich & Wills, Salinas, for defendant and respondent.

BRAUER, Associate Justice.

Appellant sued respondent on account of alleged sexual abuse that had occurred between 20 and 13 years earlier. In her complaint, appellant attempted to state causes of action for assault, battery, and intentional and negligent infliction of emotional distress.

The superior court sustained respondent's demurrer to the original complaint without leave to amend on the ground that it was barred by the statute of limitations. (Code Civ.Proc., § 340, subd. (3).) We affirm.

I. FACTS

Respondent Carswell is appellant DeRose's step-grandfather. DeRose alleges that Carswell sexually abused her beginning when she was four years old and ending when she was 11 (from 1966 to 1973). According to the allegations, Carswell's acts "were all committed against [DeRose's] will and without her consent," and [DeRose] "felt great fear and acceded to [Carswell's] acts due to her perceptions of his greater size and strength and his ability and intent to carry out his threats of harm." Plaintiff also alleges that she continues to suffer emotional injuries as a result of the sexual abuse. DeRose, however, did not immediately discover the injuries and their cause "due to the nature of the acts of the defendant, and the psychological mechanisms experienced by [DeRose] to deny, repress and dissociate herself from the underlying events, or to seek therapeutic intervention until within the last six months."

The limitations period applicable to DeRose's causes of action for assault and battery, and intentional and negligent infliction of emotional distress, is one year. (Code Civ.Proc., § 340, subd. (3).) The statute of limitations was tolled until March 2, 1980, when DeRose became an adult. (Code Civ.Proc., § 352, subd. (a).) Thus, unless some exception applies, the statute of limitations barred DeRose's claims as of March 2, 1981. DeRose filed her complaint on January 13, 1986, four years and 10 months later.

II. DISCUSSION

DeRose contends that the statute of limitations does not bar her claims for four reasons. First, she argues that she is entitled to invoke the delayed discovery doctrine because she did not appreciate until recently the causal relationship between the alleged assaults and her emotional injuries, even though she was aware of the assaults. Second, she contends that the decision in Zambrano v. Dorough (1986) 179 Cal.App.3d 169, 224 Cal.Rptr. 323, permits her to state a separate cause of action based solely upon the subsequent emotional harm. Third, she maintains that Carswell is estopped to assert the statute of limitations because of his past wrongful conduct. Fourth, she claims that her inability until recently to understand what caused the emotional injuries constituted "insan[ity]" within the meaning of Code of Civil Procedure section 352, subdivision (a). DeRose also challenges the superior court's decision to sustain Carswell's demurrer without leave to amend.

In determining whether the complaint stated a cause of action, we consider the demurrer as admitting all material and issuable facts properly pleaded. (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 492 P.2d 1137.) We do not consider whether the plaintiff will be able to prove her allegations. "A demurrer tests only the legal sufficiency of the pleading." (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213, 197 Cal.Rptr. 783, 673 P.2d 660.)

A. Delayed Discovery

DeRose follows a number of plaintiffs who have alleged that psychological defense mechanisms caused by sexual abuse, especially in the context of incest, prevent recognition of the cause and extent of emotional harm. (See Tyson v. Tyson (1986) 107 Wash.2d 72, 727 P.2d 226; Raymond v. Ingram (1987) 47 Wash.App. 781, 737 P.2d 314; cf. John R. v. Oakland Unified School District (1987) 194 Cal.App.3d 1454, 240 Cal.Rptr. 319.) Like DeRose, the plaintiffs in those cases point to repression or analogous psychological phenomena as occasions for application of the delayed discovery rule.

In her brief on appeal, DeRose presents information from psychological and sociological literature about incestuous sexual abuse. DeRose discusses the prevalence of the problem and the psychological and familial pressures against discussing it privately or publicly. These pressures, DeRose explains, sometimes prevent survivors of incest from understanding their emotional injuries until they receive appropriate therapy.

This case, however, does not require us to determine the validity of any psychological theory or to articulate general rules governing the delayed discovery doctrine's application in sexual abuse cases. We do not address those questions because the allegations of DeRose's complaint affirmatively show that she cannot satisfy the minimum conditions for application of the delayed discovery rule.

The statute of limitations ordinarily begins to run "upon the occurrence of the last fact essential to the cause of action." (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 296, 146 Cal.Rptr. 271.) In personal injury cases, the wrongful act often causes immediate harm. But in some cases where injury was inflicted without perceptible trauma courts have held that the statute does not begin to run until the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, all of the facts which are essential to the cause of action. (Ibid.) The doctrine's paradigmatic application is to medical malpractice cases (see, e.g., Huysman v. Kirsch (1936) 6 Cal.2d 302, 311-313, 57 P.2d 908), but courts have applied the doctrine in other contexts as well. (See, e.g., Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, 731, 152 Cal.Rptr. 27 [libel]; Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 314-315, 132 Cal.Rptr. 860 [invasion of privacy]; G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25, 122 Cal.Rptr. 218 [prescription drugs]; Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 989-991, 120 Cal.Rptr. 312 [negligent breach of contract].)

Whatever the context, the delayed discovery doctrine applies only when a plaintiff has not discovered all of the facts essential to the cause of action. Conversely, if the plaintiff has discovered all of the essential facts, the doctrine does not apply. In this case, the allegations of the complaint leave no doubt that DeRose was actually aware long ago of the facts necessary to state a cause of action against Carswell based upon the sexual assaults. In her complaint, DeRose alleged affirmatively that the assaults "were all committed against plaintiff's will and without her consent" and that, "[a]t the times of said sexual molestation, plaintiff felt great fear and acceded to defendant's acts due to her perceptions of his greater size and strength and his ability and intent to carry out his threats of harm." The immediate harm caused by the alleged assaults gave DeRose a right to sue at that time. (Sonbergh v. MacQuarrie (1952) 112 Cal.App.2d 771, 773-774, 247 P.2d 133.)

DeRose argues that her cause of action did not accrue until she experienced later emotional harm and recognized its connection with the earlier assaults. There are, indeed, times when awareness of a wrongful act does not carry with it awareness of harm. That is true, for example, when an incorrect pharmaceutical prescription cannot be appreciated as tortious until it has caused harm. (See, e.g., G.D. Searle & Co. v. Superior Court, supra.) An assault, however, which by definition is perceived as unconsented to and offensive, causes harm as a matter of law. (Sonbergh v. MacQuarrie, supra, at pp. 773-774, 247 P.2d 133.) For us to hold that no cause of action accrued until 13 years after the assault would suggest, incorrectly, that a victim of sexual assault cannot sue unless and until there are delayed consequences.

If DeRose could and did allege that she repressed her memories of the sexual assaults until one year before filing her complaint, she might be able to invoke the delayed discovery rule. ¹ While the assaults that DeRose has alleged caused serious harm as a matter of law, DeRose could not logically be charged with awareness of the harm if she had not been aware of the assaults. In fact, there are allegations in the complaint that might be read to suggest that this was the case. DeRose, however, both in the superior court and on appeal, disclaimed that interpretation of the complaint. While we must construe the complaint to state a cause of action, if possible, there is no rule that compels us to interpret the complaint to allege particular facts which the pleader disavows.

In the relevant portions of her complaint, DeRose alleges that Carswell's acts caused her to develop "psychological mechanisms" and "psychological illnesses" which "prevented her from knowing, recognizing and understanding the nature or extent of her injuries ... and the causal relationship between her present injuries and defendant's past acts." Elsewhere in her complaint, DeRose alleges that she failed to discover "the fact of her injuries and their cause."

At the hearing on the demurrer, the superior court specifically discussed with DeRose's counsel the interpretation and effect of the complaint's delayed discovery allegations. Counsel's remarks made it clear that DeRose does not interpret her own complaint to allege that she had repressed her memories of the sexual assaults. "[COUNSEL]: And the medical...