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Joseph v. Johnson

November 6, 2009


Superior Court of Alameda County, No. RG06276792, Kenneth Mark Burr, Judge.

The opinion of the court was delivered by: Pollak, Acting P. J.


Plaintiffs Dawna A. Joseph and Nicole N. McGowan appeal from an order sustaining without leave to amend a demurrer to their third amended complaint for personal injury against defendant Carolyn A. Johnson. Plaintiffs contend that Johnson is liable for damages arising out of their sexual molestation by Johnson‟s husband, Albert Caesar, for which Caesar has been criminally convicted, but the trial court held that their claims against Johnson are now barred by the statute of limitations. We conclude that the court properly sustained the demurrer with regard to plaintiffs‟ second and fifth causes of action for negligence but erred in sustaining the demurrer to plaintiffs‟ third and sixth causes of action for intentional misconduct. Accordingly, we shall affirm in part but reverse the order with respect to the third and sixth causes of action.

Factual and Procedural Background

On June 28, 2006, plaintiffs filed a complaint against Johnson and Caesar for personal injury arising out of Caesar‟s sexual molestation of the plaintiffs when they were minors.*fn1 A first amended complaint was filed shortly thereafter and in December 2007, plaintiffs filed a second amended complaint. Johnson‟s demurrer to the second amended complaint was sustained on the ground that the action is barred by the statute of limitations. Plaintiffs were given leave to amend to allege facts showing that when Caesar committed the molestation he was acting as Johnson‟s agent, so that an exception in subdivision (b)(2) of the applicable statute of limitations, Code of Civil Procedure section 340.1, would apply, extending the time limitation period.*fn2

Plaintiffs, who were over the age of 26 at the time the civil action was filed, allege in their third amended complaint as follows: In January 2006, Caesar was convicted of sexually abusing plaintiffs when they were minors. At all relevant times, Johnson was married to Caesar. Johnson knew that Caesar "had been convicted of one or more sex crimes arising from his sexually deviant propensities" and that he "was predisposed to sexually molest minors." When plaintiffs were minors, Johnson, who was related to plaintiffs,*fn3 would offer "to provide baby-sitting services for [plaintiffs] from time to time . . . . [¶] . . . The quid pro quo for the offers of baby-sitting service was to receive like service and other consideration from [plaintiffs‟] mother." Johnson assumed a duty to provide plaintiffs "with an environment reasonably safe and secure for her health and well being" and she represented to plaintiffs‟ mother "that it was perfectly safe for [plaintiffs] to visit and be exposed to [Caesar]." Johnson "caused the subject baby-sitting . . . to occur at the residence of [Johnson and Caesar]" and "delegated to [Caesar] those baby-sitting duties" she had assumed. "[S]he knew and/or should have known [Caesar] was to be alone with [plaintiffs] while so baby-sitting. . . . [¶] . . . Johnson readily could have controlled [Caesar‟s] conduct with [plaintiffs] by not allowing him to be alone with [plaintiffs] while baby-sitting. [¶] Caesar sexually molested [plaintiffs] while he was alone with [them] during the course of providing baby sitting services in lieu of Ms. Johnson." Based on these allegations, plaintiffs allege that "Johnson negligently breached the aforesaid duties of care she owed [plaintiffs], increasing the risk of harm to [plaintiffs] on those occasions when [plaintiffs were] being baby sat by [Caesar]." Plaintiffs also allege that while they were minors "Johnson intentionally provided and/or made [them] available to [Caesar] for the purpose of lewd and/or lascivious conduct as defined in Penal Code section 288" and caused them "to engage in conduct proscribed by Penal Code section 288." Finally, plaintiffs allege that their "complaint was filed within three years of when [they] reasonably discovered psychological injury and/or illness caused by [the sexual abuse]."

Johnson‟s demurrer to the third amended complaint was sustained without leave to amend on the ground that plaintiffs‟ claims are barred by the statute of limitations. A judgment of dismissal was entered and plaintiffs filed a timely notice of appeal.


Standard of Review

Because this appeal arises from a judgment of dismissal following the sustaining of a demurrer without leave to amend, we give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 543.) "We apply well-established principles of statutory construction in seeking "to determine the Legislature's intent in enacting the statute " "so that we may adopt the construction that best effectuates the purpose of the law.‟ " ‟ " (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 211.) The statutory language is generally the most reliable indicator of legislative intent. However, if the statutory language may reasonably be given more than one interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute. (Ibid.)

Statute of Limitations

Section 340.1, quoted in footnote 2, ante, sets forth the limitations period for an action seeking damages suffered as a result of childhood sexual abuse. In Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910, 919-920, the court summarized the core statutory provisions as follows: "Section 340.1 provides that an action for recovery of damages suffered as a result of childhood sexual abuse must be commenced within three years of discovering that injury occurred as the result of the abuse, or within eight years after the plaintiff attains the age of majority, whichever is later. (§ 340.1, subd. (a).) This limitations provision applies whether the defendant is the perpetrator of the abuse, or a third party whose liability stems from a negligent or intentional act which was the legal cause of the abuse that resulted in the injury. (§ 340.1, subd. (a)(1)-(3).) [¶] In the case of a third party defendant, the action must be commenced before the plaintiff's 26th birthday unless the third party defendant "knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person‟ in which case the action must be commenced within three years of discovering the injury was caused by the abuse. (§ 340.1, subd. (b)(2).)"

1. The Second and Fifth Causes of Action for Negligence

Plaintiffs‟ second and fifth causes of action for negligence allege that Johnson negligently breached a duty of care owed to plaintiffs, which she assumed by virtue of her agreement to baby-sit the plaintiffs, when she delegated her baby-sitting responsibilities to Caesar. Plaintiffs thus assert causes of action described in subdivision (a)(2) of section 340.1, "[a]n action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff." An action against a third party governed by subdivision (a)(2) of section 340.1 must be commenced before the plaintiff‟s 26th ...

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