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Olinda Jackson v. John Doe

February 9, 2011

OLINDA JACKSON, PLAINTIFF AND APPELLANT,
v.
JOHN DOE, DEFENDANT AND RESPONDENT.



Superior Court of the County of Napa, No. 2645986, Raymond A. Guadagni, Judge.

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

CERTIFIED FOR PUBLICATION

(Napa County Super. Ct. No. 2645986)

Pursuant to Code of Civil Procedure section 340.1*fn1 "the limitations period for actions to recover damages for childhood sexual abuse is the later of either the plaintiff's 26th birthday or three years from the date the plaintiff discovers, or reasonably should have discovered, that psychological injury occurring after turning 18 was caused by the sexual abuse. [Citation.]" (Dutra v. Eagleson (2006) 146 Cal.App.4th 216, 222 (Dutra).) A plaintiff who is 26 years of age or older when such an action is commenced must file "certificates of merit" executed by the plaintiff's attorney and by a licensed mental health practitioner. (§ 340.1, subds. (g), (h)(1), (2).) The certificates must include declarations reflecting there is reasonable and meritorious cause for the filing of the action, and a reasonable basis to believe the plaintiff has been subject to childhood sexual abuse. (Doyle v. Fenster (1996) 47 Cal.App.4th 1701, 1704 (Doyle).)

The certificates of merit must be filed within the statute of limitations period, unless the plaintiff's attorney files a certificate -- also known as an attorney certificate -- pursuant to section 340.1, subdivision (h)(3) explaining why the certificates of merit were not filed before the statute of limitations expired. Where the attorney files such an attorney certificate, the appropriate certificates of merit "shall be filed within 60 days after filing the complaint." (§ 340.1, subd. (h)(3); McVeigh v. Doe 1 (2006) 138 Cal.App.4th 898, 901 (McVeigh); Doyle, supra, 47 Cal.App.4th at p. 1704.)

Plaintiff Olinda Jackson (plaintiff) filed a complaint on January 15, 2009 in propria persona (sometimes pro per) alleging defendant John Doe (defendant) sexually abused her.*fn2 She alleged defendant molested her throughout her childhood, but she did not realize the molestation had caused her psychiatric and emotional problems until January 18, 2006. She did not file the certificates of merit with the complaint, nor did she obtain the trial court's approval before naming the defendant and serving him with the complaint. (See § 340.1, subds. (j), (m).) Defendant demurred based on plaintiff's failure to file the certificates of merit and the trial court sustained the demurrer without leave to amend. The court subsequently denied plaintiff's motion for relief pursuant to section 473.

Plaintiff appeals. She contends the court: (1) erred by considering defendant's untimely demurrer; (2) abused its discretion by sustaining the demurrer without leave to amend; and (3) abused its discretion by denying relief pursuant to section 473. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 15, 2009, plaintiff sued defendant for negligence, intentional tort, and punitive damages. Plaintiff alleged defendant sexually molested her multiple times in 1971 and throughout her childhood; plaintiff further claimed she did not realize the molestation was the cause of her psychiatric and emotional problems until January 18, 2006. The complaint did not attach the certificates of merit required by section 340.1, subdivision (h), nor did plaintiff obtain the trial court's approval before naming the defendant and serving him with the complaint. (See § 340.1, subds. (j), (m).) The complaint was not verified.

The Demurrer

Defendant demurred to the complaint on the ground that plaintiff failed to file the certificates of merit required by section 340.1, subdivision (h) to "corroborat[e] her claims before the statute of limitations ran. This defect in pleading cannot be cured and the [c]omplaint must be dismissed without leave to amend." Plaintiff did not oppose the demurrer. Instead, she hired an attorney two days before the hearing who asked for additional time to oppose the demurrer and to explain why plaintiff did not file the certificates of merit. Plaintiff also objected that the demurrer was untimely.*fn3 The trial court denied plaintiff's request and sustained the demurrer without leave to amend, concluding that plaintiff's attorney's failure to file the attorney certificate pursuant to section 340.1, subdivision (h)(3) "constitute[d] grounds for sustaining [the] demurrer without leave" to amend. The court advised counsel that plaintiff could seek relief pursuant to section 473.

Plaintiff's Motion for Section 473 Relief

On October 30, 2009, plaintiff moved for relief pursuant to section 473. Plaintiff argued she was entitled to relief because the demurrer was untimely pursuant to section 430.40. She also contended she was entitled to mandatory and discretionary relief pursuant to section 473, subdivision (b) because the order sustaining the demurrer ...


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