Mary D. v. John D.
| Decision Date | 30 November 1989 |
| Docket Number | No. H003404,H003404 |
| Citation | 264 Cal.Rptr. 633,216 Cal.App.3d 285 |
| Parties | Previously published at 216 Cal.App.3d 285 216 Cal.App.3d 285, 58 USLW 2356 Mary D., Plaintiff and Appellant, v. John D., Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Law Office of Mary R. Williams, Oakland, Law Office of Shari L. Karney, Encino, for plaintiff and appellant.
Dale E. Barnes, Jr., Cynthia G. Goldstein, McCutchen, Doyle, Brown & Enersen, Mary C. Dunlap, San Francisco, Janet M. Koehn, Stenzel, Koehn & Howard, Ventura, for amicus curiae.
Gail Y. Norton, Lisa D. Lorea, Ropers, Majeski, Kohn, Bentley, Wagner & Kane FOGEL, Associate Justice. *
Redwood City, for defendant and respondent.
Plaintiff (Mary D.) brought this action for psychological injuries suffered allegedly caused by sexual abuse by her father (defendant John D.) when she was a child. She claimed that the abuse occurred when she was five years old and younger, and brought the complaint when she was 24 years of age. The trial court granted summary judgment for defendant based on the statute of limitations. Plaintiff appeals, contending that the trial court should have found the existence of a triable issue of fact as to whether the delayed discovery doctrine 1 tolls the statute here, making the action timely.
This case presents two issues: First, does the delayed discovery doctrine toll the statute of limitations for sexual abuse of a child (Code Civ.Proc., § 340.1) in a case where the victim alleges that she repressed her memories of the events while still a child and retained no conscious memory of the acts of sexual abuse until a time beyond the limitations period? Second, assuming that it does, is plaintiff's assertion that she repressed the events until a recent time, unsupported by any expert opinion evidence, sufficient on a motion for summary judgment to raise a triable issue of fact as to whether such psychological repression occurred?
For reasons we shall state, we hold that the period of limitations is tolled when the child victim of alleged sexual abuse psychologically represses all memory of the acts of abuse while she is still a minor and does not remember those acts until a date after attaining majority, which date will constitute the time of accrual of the cause of action. We therefore hold that because plaintiffs' complaint adequately pleads facts which, if established by competent evidence, would permit application of the delayed discovery doctrine in this case, which facts were not negated by defendant's motion for summary judgment, the judgment must be reversed.
FACTS
Plaintiff was born on March 15, 1962. On May 29, 1986, when she was 24 years old, she filed a complaint alleging that defendant is her natural father and that he sexually molested her from her infancy until she was approximately five years old. The complaint further alleges that the acts of abuse were committed against her will and without her consent; that they were accomplished by dominance and duress on defendant's part; that defendant committed the acts in secret and accompanied by implicit and explicit directions never to tell others about the acts; that the very nature of the acts and the secrecy and duress by which they were accomplished, coupled with the relationship of dependency and trust between plaintiff and defendant, caused plaintiff to develop various psychological mechanisms including but not limited to denial, repression, and disassociation from the experiences. It is further alleged that at the time of the acts, plaintiff was unable to know the existence or nature of the injuries which the conduct caused, and the psychological mechanisms of denial and repression caused by these acts caused plaintiff to be unable to become aware of the existence or nature of the injuries. These mechanisms, the allegations continue, operated to preclude plaintiff from becoming aware of her injuries and their probable causal connection to defendant's acts until on or after approximately June 1, 1985, (approximately one year before the filing of the complaint).
The complaint also alleges that before June 1, 1985, plaintiff was not aware that mental and emotional disturbances and distress from which she suffered were causally Defendant by affirmative defense in his answer and by motion for summary judgment raised the bar of the statute of limitations set forth in Code of Civil Procedure section 340.1, which states that an action for injury or illness based upon alleged incest must be brought no later than three years after the injury or illness. Defendant conceded that because plaintiff was a minor at the time of alleged injury, the statute was tolled until her eighteenth birthday. (Code Civ.Proc., § 352, subd. (a); see also Colleen L. v. Howard M. (1989) 209 Cal.App.3d 542, 546, 257 Cal.Rptr. 263.) However, defendant argued that the complaint should have been filed no later than three years following plaintiff's eighteenth birthday, i.e., March 15, 1983. Since it was not filed until May 1986, defendant claimed that it was three years too late and therefore barred.
connected to defendant's acts of sexual molestation, nor had she any informed diagnosis of the nature of her injuries and their causal connection to defendant's acts of sexual molestation. The complaint describes the sexual acts allegedly committed by defendant with plaintiff and plaintiff's injuries and damages, including mental and emotional health problems since childhood, low self esteem, distrust of people, self-destructive behavior, alcohol and drug abuse, sexual promiscuity, suicidal tendencies and attempts, and related injuries.
In response to the motion for summary judgment, plaintiff argued in her points and authorities (but presented no competent evidence) that children who are victims of incest often repress their memories of these events until many years later. 2 She also offered her declaration, stating that she began for the first time in June of 1985, when she was participating in group therapy sessions, to have memories of having been sexually abused by her father. In particular, she states that The declaration further alleges that in June 1985 plaintiff began to have memories of being manually penetrated and masturbated by her father when she was an infant and when she was about two or three years old, and that since June 1985 she has had other memories of molestation when she was between two and five years old. Plaintiff also states that her therapist has informed her that many of her psychological problems are causally connected to this abuse and that she had repressed her awareness of the abuse and disassociated from it as a child as a natural psychological response.
Plaintiff also attached to her opposition to summary judgment copies of her answers to defendant's interrogatories. These answers contain plaintiff's descriptions of what she remembers of the alleged molestation incidents. Plaintiff states she has had memories of these incidents since the summer of 1985. She also states that she has been in therapy since November 1984, and that the memories began to come to her during therapy beginning in June 1985.
Plaintiff did not offer any expert declarations or affidavits concerning her alleged repression of her memories of the acts of incest.
DISCUSSION
This court has held that the delayed discovery doctrine does not apply to toll the statute of limitations for assault and battery and infliction of emotional distress, where the plaintiff alleges that she remembers childhood sexual abuse but only recently became aware of the "later serious Code of Civil Procedure section 340.1 is more recent than the statute of limitations applicable to the complaint in DeRose. (Code Civ.Proc., § 340, subd. (3).) At the time of the DeRose decision, there was no specific statute of limitations for childhood sexual abuse, and the plaintiff sued for assault and battery and infliction of emotional injury rather than for the specific tort of incest alleged here. However, we expressly stated in DeRose that the result would be the same under the newly enacted specific statute, section 340.1, as under the statute applied in DeRose: "The new statute did not change in any way the prerequisites for applying the discovery rule." ( DeRose, supra, 196 Cal.App.3d at p. 1020, 242 Cal.Rptr. 368.)
and ongoing injuries that have plagued her" as a result of such abuse. (DeRose v. Carswell, supra, 196 Cal.App.3d 1011, 1019, 1021, 242 Cal.Rptr. 368.) The basis for the holding in DeRose was that the delayed discovery doctrine does not apply to a plaintiff who has discovered all the facts essential to her cause of action and who has suffered cognizable harm beyond the limitations period. (Id. at p. 1021, 242 Cal.Rptr. 368.) The plaintiff in DeRose was actually aware of the facts necessary to state causes of action for assault and battery and infliction of emotional distress during the entire limitations period. 3 (Ibid.) That plaintiff was not aware of the connection between those harms and her later emotional injuries, but we concluded that lack of such knowledge did not toll the statute. (Ibid.) We held that as a matter of law an assault constitutes cognizable harm, and since the plaintiff was aware of the assaults the period of limitations began to run at that time [tolled only until plaintiff attained majority]. (Id. at p. 1018, 242 Cal.Rptr. 368.) We said the mere fact that some of the consequences of such abuse may have been delayed did not extend the statutory period: "For us to hold that no cause of action
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