Evans v. Eckelman

• Decision Date: 09 January 1990
• Docket Number: No. A042990,A042990
• Citation: 265 Cal.Rptr. 605,216 Cal.App.3d 1609
• Court: California Court of Appeals Court of Appeals
• Parties: Garry EVANS et al., Plaintiffs and Appellants, v. Don ECKELMAN et al., Defendants and Respondents.

Page 605

265 Cal.Rptr. 605

216 Cal.App.3d 1609

Garry EVANS et al., Plaintiffs and Appellants, v. Don ECKELMAN et al., Defendants and Respondents.

No. A042990.

Court of Appeal, First District, Division 5, California.

Jan. 9, 1990.

Jason M. Cox, Kerry M. Gough, Bonjour, Gough & Thorman, Hayward, for plaintiffs and appellants.

Peter T. Hoss, Michael P. Masuda, Noland, Hamerly, Etienne & Hoss, Salinas, for defendants and respondents.

LOW, Presiding Justice.

A civil action based on a parent or parental figure's sexual abuse of the plaintiff as a child does not accrue until the plaintiff discovers or should discover the acts of molestation and the wrongfulness of the conduct.

Garry Evans, Terry Evans, and Lonnie Evans, three brothers, sued Don Eckelman, their uncle and former foster father, and OLCO, a corporation, for damages resulting from Eckelman's sexual abuse of them as children. The trial court sustained defendants' demurrers to the second amended complaint without leave to amend, and dismissed the action, on the ground it was barred by the statute of limitations. (Code Civ.Proc., § 340.1, subd. (a).) We reverse with directions that leave to amend be granted.

In reviewing a general demurrer, we accept as true all the properly pleaded allegations of the complaint and examine them only for their legal sufficiency. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) The denial of leave to amend is an abuse of discretion if the record discloses a reasonable possibility that the plaintiff could amend to state a cause of action. (Ibid.) Applying those standards we find that the allegations of the complaint are insufficient on their face to overcome the statute of limitations, but it is reasonably possible plaintiff could do so on amendment of the complaint.

The alleged sexual abuse began in 1966 when Garry and Terry were seven years old and Lonnie was ten years old. Juvenile authorities had removed plaintiffs from the custody of their father and placed them in the home of their uncle by marriage, defendant Eckelman and his spouse. The Eckelmans were appointed foster parents and awarded custody and control of the children. From 1966 until 1968, when plaintiffs were removed from the Eckelman home, it is alleged Mr. Eckelman repeatedly molested each of them; specific acts alleged include genital fondling, anal and oral intercourse. The acts were accomplished against plaintiffs' will and without their consent. Eckelman concealed his conduct from other adults, instructed the boys not to tell anyone and threatened to return them to the county juvenile shelter if they did so.

As a result of the abuse, the secrecy, and the violation of their trust, plaintiffs developed various "psychological blocking mechanisms," including "fear, internalized shame, guilt and self blame, confusion, denial, repression and disassociation from the experience of abuse." They were consequently unable to perceive the psychological injuries caused them or their causal connection to Eckelman's acts. Plaintiffs' psychological blocks began to break down in 1986. Garry was convicted of sexual assault on a child and was ordered to undergo therapy. As a result of the therapy and subsequent discussion among the three brothers, all three discovered "for the first time ... the nature of their injuries herein alleged and their causal connection to defendant's acts."

The causes of action alleged against Eckelman are entitled incestuous abuse, assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, negligence, and breach of fiduciary duty. Plaintiffs filed this action in 1987. The longest applicable limitations period for sexual molestation of a minor by a family or household member is three years from the act. (Code Civ.Proc., § 340.1, subd. (a).) Although the statutory period was tolled during plaintiffs' minority (Code Civ.Proc., § 352, subd. (a)), that tolling period ended in 1974 as to Lonnie and in 1977 as to Garry and Terry.

I

Plaintiffs rely on the rule delaying accrual until the plaintiff has discovered or should have discovered the facts establishing the essential elements of his or her cause of action. That principle originated in cases of medical malpractice (Huysman v. Kirsch (1936) 6 Cal.2d 302, 306-313, 57 P.2d 908), and progressive occupational illness (Marsh v. Industrial Acc. Com. (1933) 217 Cal. 338, 351, 18 P.2d 933), but California courts have since recognized its application to other tort actions. These have included attorney malpractice (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 190, 98 Cal.Rptr. 837, 491 P.2d 421), liability for defective drugs (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923), invasion of privacy (Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 315, 132 Cal.Rptr. 860), libel (Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, 731, 152 Cal.Rptr. 27), and underground trespass (Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 255, 73 Cal.Rptr. 127). The rule has been applied as well in certain cases arising from contract, such as breaches committed in secret and without immediately discoverable harm (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832, 195 Cal.Rptr. 421), negligent breach of contract to ship personal goods (Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 991, 120 Cal.Rptr. 312), and negligent breach of contract to conduct termite inspection (Seelenfreund v. Terminix of Northern Cal., Inc. (1978) 84 Cal.App.3d 133, 136-139, 148 Cal.Rptr. 307).

In two cases alleging sexual abuse by a parent or authority figure, DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 242 Cal.Rptr. 368, and Snyder v. Boy Scouts of America, Inc. (1988) 205 Cal.App.3d 1318, 253 Cal.Rptr. 156, the courts concluded the delayed accrual rule was inapplicable on the facts of those particular cases. The Supreme Court also declined to reach the general question in John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948, instead remanding for a determination of whether a teacher's threats of retaliation had estopped the school district from asserting plaintiff had not filed a timely claim notice. (Id., at pp. 444-445, 256 Cal.Rptr. 766, 769 P.2d 948.) One dissenting opinion suggested that delayed discovery should not be extended to molestation cases. (Id., at pp. 460-462, 256 Cal.Rptr. 766, 769 P.2d 948 (conc. and dis. opn. of Eagleson, J.).)

Nor does any statute either mandate or prohibit application of the discovery rule. Code of Civil Procedure section 340.1, which establishes a three-year limitations period for sexual abuse of a child by a family or household member, provides in subdivision (d): "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." The Legislature thus has disavowed any intent to interfere with the judicial determination of whether the delayed discovery rule should apply.

Two common themes run through the cases applying the discovery rule of accrual. First, the rule is applied to types of actions in which it will generally be difficult for plaintiffs to immediately detect or comprehend the breach or the resulting injuries. In some instances the cause or injuries are actually hidden, as in the case of a subterranean trespass (Oakes v. McCarthy Co., supra, 267 Cal.App.2d at p. 255, 73 Cal.Rptr. 127), the erasure of video tapes held in the sole custody of the defendant (April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at p. 832, 195 Cal.Rptr. 421), or foreign objects left in a patient's body after surgery (see, e.g., Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1054-1062, 254 Cal.Rptr. 104). Even when the breach and damage are not physically hidden, they may be beyond what the plaintiff could reasonably be expected to comprehend. An action for professional malpractice, for example, typically involves the professional's failure to apply his or her specialized skills and knowledge. "Corollary to this expertise is the inability of the layman to detect its misapplication; the client may not recognize the negligence of the professional when he sees it." (Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d at p. 188, 98 Cal.Rptr. 837, 491 P.2d 421.) The same rationale has been adopted where defendant held itself out or was required by law to be specially qualified in a trade. (Allred v. Bekins Wide World Van Services, supra, 45 Cal.App.3d at pp. 990-991, 120 Cal.Rptr. 312; Seelenfreund v. Terminix of Northern Cal., Inc., supra, 84 Cal.App.3d at pp. 137-138, 148 Cal.Rptr. 307.)

Second, courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule. The rule is generally applicable to confidential or fiduciary relationships. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 598, 83 Cal.Rptr. 418, 463 P.2d 770; see also April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at p. 827, 195 Cal.Rptr. 421.) The fiduciary relationship carries a duty of full disclosure, and application of the discovery rule "prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure." (Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d at p. 189, 98 Cal.Rptr. 837, 491 P.2d 421.)

The court in April Enterprises, Inc. v. KTTV, supra, also noted the importance of the relationship between defendant and plaintiff: "In most instances, in fact, the defendant has been in a far superior position to comprehend the act and the injury. And in many, the defendant had reason to believe the plaintiff remained ignorant he had been wronged. Thus, there is...