John R. v. Oakland Unified School Dist.

• Decision Date: 24 September 1987
• Citation: 206 Cal.App.3d 1473,240 Cal.Rptr. 319
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 206 Cal.App.3d 1473 206 Cal.App.3d 1473, 41 Ed. Law Rep. 1028 JOHN R. et al., Plaintiffs and Appellants, v. OAKLAND UNIFIED SCHOOL DISTRICT, Defendant and Respondent. A032560.

Page 319

240 Cal.Rptr. 319

Previously published at 206 Cal.App.3d 1473

206 Cal.App.3d 1473, 41 Ed. Law Rep. 1028

JOHN R. et al., Plaintiffs and Appellants, v. OAKLAND UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

A032560.

Court of Appeal, First District, Division 1, California.

Sept. 24, 1987.

Review Granted Dec. 17, 1987.

The Culver Law Firm, Inc., Taylor R. Culver, William A. Barnes, Oakland, for appellants.

Ralph A. Lombardi, Nancy L. Pullen, Hardin, Cook, Loper, Engel & Bergez, Oakland, for respondent.

RACANELLI, Presiding Justice.

In this case we determine that where a parent's delayed discovery of a sexual assault on a minor is due to the continuing effect of the assault, the cause of action for the assault does not accrue until the effect of the underlying tort is no longer operative.

This appeal arises from an action against a school district and teacher filed by a student and his parents alleging sexual abuse of the student by the teacher. The student, John R., and his father appeal from a judgment entered after the granting of a motion for nonsuit at the close of their attorney's opening statement. The issues presented on appeal involve excuse from failure to file a timely application for leave to file a late claim under the provisions of the California Tort Claims Act (Gov.Code, § 900 et seq.) ¹ where a mentally incapacitated minor's parent is unaware of the minor's injury and the minor's mental incapacity is a result of "child sexual abuse accommodation syndrome"; delayed accrual of the cause of action; estoppel of the public entity; and the school district's liability under the doctrine of respondeat superior determined by the trial court on an earlier demurrer.

We will reject the argument that the running of the claims statute is tolled by a minor's inability to discuss a sexual assault with his parents. We will conclude, however, that a cause of action for sexual assault of a minor does not accrue until the parents discover, or should discover, the assault where the failure to discover is caused by the continuing effects of the underlying tort. Because the questions whether the parents' failure to discover the minor's injury was a result of the tort itself and whether such failure was reasonable are factual in nature, we will reverse the judgment to allow appellants the opportunity to present evidence relevant to such factual determination. We will also reverse, in part, the ruling on demurrer.

Factual and Procedural Background

In early 1981, John R., then 14 years old, was sexually assaulted by his math teacher. He did not tell his parents about the assault until December 17, 1981. At a subsequent deposition, his mother stated that she consulted an attorney regarding the matter in December 1981. Also in December, John's mother contacted the vice-principal of her son's junior high school and reported the incident. School officials subsequently reported the incident to the police, who contacted John's family in late December.

It was not until May 13, 1982, that John R. through his guardian ad litem filed an application for leave to file a late claim against the school district pursuant to section 911.4. The attached claim stated that the incident occurred between June 1980 and December 1981.

On July 30, the application was amended to add the parents as claimants.

On August 4, 1982, appellant (by his mother as guardian ad litem) and his parents filed a complaint in superior court against the teacher.

On August 11, 1982, the application to file a late claim was rejected by the school district.

In late August 1982, John R. apparently testified at the teacher's criminal trial that the assault happened in May of 1981. The parties to this appeal agree that the criminal case was dismissed because the evidence showed that the assault could not have occurred any later than February 1981. ²

On December 23, 1982, appellants petitioned the superior court below for relief from the claims statute pursuant to section 945.4 and requested leave to amend the complaint to add the school district as a defendant. The minor argued that the assault occurred at the end of the 1980-1981 school year and that the 100 days claims period did not begin until December 1981 when he told his parents of the assault. He also argued that because the teacher threatened him if he told anyone what had happened, the district was thereby estopped from asserting the time limitation of the claims statute. The parents argued that they should be excused from the claim requirement due to mistake, inadvertence or excusable neglect because the school officials did not advise them of such requirement. Both the minor and his parents contend that the emotional trauma directly caused by the criminal assault justified the delay. ³

On February 8, 1983, the superior court filed its order excusing the minor and his parents from the claim filing procedures and allowing amendment of the complaint. On the same date, the first amended complaint was filed, with the school district added as a party defendant.

On April 25, 1983, the school district's demurrer was sustained with leave to amend as to several causes of action.

On July 5, 1983, a subsequent demurrer was also sustained with leave to amend.

On October 4, 1983, a third demurrer was sustained without leave to amend as to the first, second, fifth, and seventh causes of action, which pertained to the district's indirect liability for the acts of the teacher under the doctrine of respondeat superior, and a motion to strike the sixth cause of action (negligent infliction of emotional distress) was granted. Thereafter, the matter proceeded to trial against the teacher on all theories and against the school district limited to a theory of direct liability based on negligent hiring.

On Friday, June 28, 1985, counsel for appellants declared during opening statement that the assault took place in February 1981. On the basis of that declaration, counsel for defendants moved for a nonsuit arguing noncompliance with the claims statute and related failure to seek relief from the statutory requirement within one year of the stated date. The following Monday, the trial court made its order reversing the previous order relieving appellants from compliance with the claims statute and ordering a judgment of nonsuit in favor of the school district only. ⁴ This appeal ensued.

Discussion ⁵

Under the relevant statutory scheme, before bringing a lawsuit for personal injuries against a public entity, an injured citizen must present a written claim within 100 days after accrual of the cause of action. (§ 911.2.) If a claim is not filed within 100 days, a claimant may apply to the entity for leave to file a late claim. (§ 911.4.) "The application shall be presented to the public entity ... within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.... In computing the one-year period under this subdivision, time during which the person who sustained the alleged injury, damage, or loss is a minor shall be counted, but the time during which he is mentally incapacitated and does not have a guardian or a conservator of his person shall not be counted." (§ 911.4, subd. (b).)

If the application is denied, the claimant may then petition the superior court for relief from the claim filing requirements. (§ 946.6.) The superior court "shall relieve the petitioner" if it finds that the application to the public entity was made within a reasonable time not to exceed the one-year period of section 911.4, subdivision (b), and that the injured person was a minor during the 100-day presentation period; or that the person was physically or mentally incapacitated, or that the failure to present the claim was "through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes that it would be prejudiced...." (§ 946.6, subd. (c)(1).)

"The superior court has broad discretion in granting or denying a petition for relief under section 946.6. [Citations.]" (Toscano v. County of Los Angeles (1979) 92 Cal.App.3d 775, 782, 155 Cal.Rptr. 146.) However, the court may permit late filing only if the application is filed within a reasonable time, not to exceed one year. (Moyer v. Hook (1970) 10 Cal.App.3d 491, 492, 89 Cal.Rptr. 234.) The trial court in this case determined that the earlier order had been based upon an incorrect assumption as to what the evidence would show regarding the date of the assault. The court made an express finding that appellants had failed to seek relief within one year of accrual of their cause of action in February of 1981.

We note that the second time this matter arose was in the context of the nonsuit motion. An order granting a nonsuit "may be made only when there is no substantial conflict in the evidence. In ruling on the motion, the court does not consider credibility of witnesses but gives to the evidence of the party against whom it is directed all its legal value, indulges every legitimate inference from such evidence in favor of that party, and disregards conflicting evidence." (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 409, p. 412, italics omitted.) Regardless of the appropriate standard of review, it is undisputed that appellants have failed to file within a reasonable time after the injury, not to exceed one year. "[F]iling of a claim no later than one year after the accrual of the cause of action is an absolute requirement and even the mentally incapacitated minor forfeits his right to bring an action against a public entity if he fails to file his claim within the allowed period. [Citations.]" (Carr v. State of California (1976) 58 Cal.App.3d 139, 146, 129 Cal.Rptr. 730.) Thus, unless there is a tolling provision or accrual of the cause of action is delayed, appellants' claim would merit no consideration. (Rand v. Andreatta (1964) 60 Cal.2d 846,...