Ct.App. 1/4 A120048 Alameda County Super. Ct. No. HG07313640 Judge: Kenneth Mark Burr
The opinion of the court was delivered by: Cantil-sakauye, C. J.
Plaintiffs brought an action against the Roman Catholic Bishop of Oakland, alleging that defendant bore responsibility for sexual abuse committed during the 1970's by a priest then assigned to the Oakland diocese. Plaintiffs allege that in 2006 they discovered for the first time that the cause of their adult psychological injuries was the sexual abuse inflicted by this priest when they were children. It is our task to determine whether their claims are timely within the limitations period established by Code of Civil Procedure section 340.1.*fn1
Section 340.1 governs the period within which a plaintiff must bring a tort claim based upon childhood sexual abuse. The statute must be understood in an historical context. Over the years, the limitations period for claims alleging sexual abuse against children continually was expanded as to actions that were brought against those persons who were the direct perpetrators of the sexual abuse. Moreover, in 1990 the Legislature elected to specify that such causes of action against direct perpetrators could be brought within eight years of majority or within three years of the time the plaintiff discovered that psychological injury was caused by childhood abuse. It was only in 1998, however, that the statute was amended to include third party defendants within its purview, and as to such defendants the Legislature elected not to embrace the open-ended discovery provision past the plaintiff's 26th birthday. On the contrary, drawing a clear distinction between direct perpetrators and third party defendants, in 1998 the Legislature provided that claims against third party defendants must be brought prior to the plaintiff's 26th birthday. The claims of plaintiffs in the present case clearly were lapsed by 1998, because by that date plaintiffs all had passed their 26th birthdays.
In a 2002 amendment, the Legislature removed the strict age 26 cutoff for claims against a subcategory of third party defendants. Pursuant to the 2002 amendment, this subcategory of responsible third party defendants was swept within the provision that previously governed claims against actual perpetrators, meaning that even after the plaintiff reached the age of 26, a cause of action against these third party defendants could be brought within three years after the plaintiff discovered his or her psychological injury was caused by childhood abuse.
But what of causes of action against the subcategory of third party defendants that already had lapsed under the law as it existed in 1998? As we shall explain, in our view a specific subdivision added by the 2002 amendment provides the sole basis for the revival of such lapsed claims. Because plaintiffs did not bring their action within the one-year revival period prescribed by the 2002 amendment, their claims are barred. Our conclusion rests upon three points: The 1998 amendment under which claims against persons or entities other than the direct perpetrator of the abuse*fn2 could not be brought once a plaintiff reached the age of 26; the usual rule of construction that lapsed claims are not considered revived without express legislative language of revival; and the express -- but limited -- language of revival contained in the 2002 amendment to section 340.1.
For the reasons discussed below, the judgment of the Court of Appeal is reversed.
Plaintiffs are six brothers born respectively in 1957, 1958, 1959 (twins), 1962, and 1963. Their ages ranged from 43 to 49 when they filed suit. Defendant is the Roman Catholic Bishop of Oakland.*fn3 In a complaint filed in March 2007 and amended in July 2007, plaintiffs alleged they suffered injury as adults as a consequence of sexual abuse by a Catholic priest in the 1970's. In their first amended complaint, plaintiffs alleged that they were members of the St. Joachim parish in Hayward in 1972 and 1973, during the period Father Donald Broderson was an associate pastor of the parish. The complaint alleged that Father Broderson, who is not a defendant in this action, "sexually abused and molested the altar boys at St. Joachim's parish . . . by grabbing, fondling, kissing on the mouth, and engaging in other inappropriate sexual conduct with the boys, including Plaintiffs . . . . Fr. Broderson sexually abused each of the Plaintiffs in 1972 and/or 1973, while he was assigned as an associate pastor at St. Joachim's parish."
The complaint alleged that defendant should be held responsible for Father Broderson's actions because the priest was "under its direct supervision, employ and control." The complaint named additional Doe defendants, alleging that persons belonging to the diocese, knowing or having reason to know that Father Broderson had committed unlawful sexual conduct in the past, failed to execute their duty to take reasonable steps to avoid future acts of unlawful sexual conduct on the part of Father Broderson, including by preventing him from working in contact with children.
The complaint alleged that plaintiffs did not discover until 2006 that the sexual abuse was the cause of their adult psychological problems. In support, the complaint alleges that the sexual abuse resulting from defendant's alleged breach of duty caused psychological damage to plaintiffs, damage that rendered them unable to recognize either as children or well into adulthood the wrongfulness of Father Broderson's actions and the causal connection between the abuse and the emotional and psychological damage they suffered throughout their lives. Specifically, "[plaintiffs] did not discover, and reasonably could not discover, the wrongfulness of Father Broderson's conduct until the second half of the 2005 calendar year, when Father Broderson was deposed in connection with a civil lawsuit, admitted to sexually abusing Plaintiffs, and Plaintiffs were contacted by an attorney representing other victims of Father Broderson. Plaintiff[s] . . . did not discover, and could not reasonably have discovered that injuries occurring during [their] adulthood were caused by the molestation at the hands of Fr. Broderson, until on or after March 6, 2006, when Plaintiff[s] met with a mental health practitioner. As a result, within the one calendar year preceding the filing of this action, Plaintiff[s] . . . discovered that the psychological injury occurring after the age of majority was caused by the sexual abuse."
The first amended complaint alleged 14 causes of action, primarily including claims for negligence in hiring, retaining, and supervising Father Broderson despite knowledge of his prior acts of sexual abuse, and negligent failure to protect plaintiffs or warn them of their peril.
The trial court sustained defendant's demurrer to the first amended complaint without leave to amend on the ground that the limitations period established by section 340.1 barred the action, and the action was not revived by the 2002 amendment to that provision. The court entered judgment dismissing the complaint with prejudice.
The Court of Appeal reversed, agreeing with plaintiffs that, pursuant to the 2002 amendment to section 340.1 "their claims did not even begin to run until 2006, when they first discovered their 'psychological injury or illness occurring after the age of majority was caused by the sexual abuse.' "
This court granted defendant's petition for review. "Because this appeal arises from a judgment of dismissal following the sustaining of demurrers without leave to amend, we ' "give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded." ' [Citations.]" (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 543.)
A. Prospective and Retrospective Application of
Enlarged Limitations Periods
Before we analyze the application of section 340.1 to plaintiffs' case, we must consult the general rules concerning the application of enlarged limitations periods to claims involving conduct that occurred prior to the enlarging amendment.
The Legislature has authority to establish -- and to enlarge -- limitations periods. As we shall explain, however, legislative enlargement of a limitations period does not revive lapsed claims in the absence of express language of revival. This rule of construction grows out of an understanding of the difference between prospective and retroactive application of statutes.
Our decisions have recognized that statutes ordinarily are interpreted as operating prospectively in the absence of a clear indication of a contrary legislative intent. (Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 230 (Disability Rights); DiGenova v. State Board of Education (DiGenova) (1962) 57 Cal.2d 167, 174; see also § 3 ["No part of [this code] is retroactive, unless expressly so declared"].) In construing statutes, there is a presumption against retroactive application unless the Legislature plainly has directed otherwise by means of " 'express language of retroactivity or . . . other sources [that] provide a clear and unavoidable implication that the Legislature intended retroactive application.' " (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475 (McClung); see also Disability Rights, supra, at p. 230; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841 (Philip Morris).) Ambiguous statutory language will not suffice to dispel the presumption against retroactivity; rather " 'a statute that is ambiguous with respect to retroactive application is construed . . . to be unambiguously prospective.' " (Philip Morris, supra, at p. 841; see id. at p. 843; see also Disability Rights, supra, at pp. 229-230; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209, fn. 13.)
The terms "retroactive" and "prospective," however, are not always easy to apply to a given statute. (See Disability Rights, supra, 39 Cal.4th at pp. 230-231.) We must consider " ' "the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event" [citation]. In exercising this judgment, "familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance." [Citation.]' [Citation]." (In re E.J. (2010) 47 Cal.4th 1258, 1273.)
In general, a law has a retroactive effect when it functions to " ' "change the legal consequences of past conduct by imposing new or different liabilities based upon such conduct" ' " that is, when it " ' "substantially affect[s] existing rights and obligations[.]" ' " (Disability Rights, supra, 39 Cal.4th at p. 231; see also In re E.J., supra, 47 Cal.4th at p. 1273 [" 'In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party's liability for, an event, transaction, or conduct that was completed before the law's effective date' "].) Ordinarily, considerations of basic fairness militate against such retroactive changes. (McClung, supra, 34 Cal.4th at p. 475; Philip Morris, supra, 28 Cal.4th at pp. 840-842.)
Changes to the law, however, are not necessarily considered retroactive even if their application "involve[s] the evaluation of civil or criminal conduct occurring before enactment." (Elsner v. Uveges (2004) 34 Cal.4th 915, 936.) In a principle of significance to the present case, changes to rules governing pending litigation, for example, frequently have been designated as prospective, because they affect the future; that is, the future proceedings in a trial. The prospective label applies even though the trial concerns conduct that occurred prior to the enactment of the new law. (Id. at pp. 936-937; see also Disability Rights, supra, 39 Cal.4th at pp. 231-232.)
Enlargement of the statutory period in which civil actions may be brought constitutes a special category within the general topic of the prospective or retroactive application of statutes. An extensive line of authority on this subject has developed and we assume that the Legislature was mindful of such existing law when it enacted legislation. (See, e.g., Estate of McDill (1975) 14 Cal.3d 831, 839; see also Mercy Hospital & Medical Center v. Farmers Ins. Group of Companies (1997) 15 Cal.4th 213, 221.)
As long as the former limitations period has not expired, an enlarged limitations period ordinarily applies and is said to apply prospectively to govern cases that are pending when, or instituted after, the enactment took effect. This is true even though the underlying conduct that is the subject of the litigation occurred prior to the new enactment. (See Douglas Aircraft Co. v. Cranston (1962) 58 Cal.2d 462, 465 (Douglas Aircraft); Mudd v. McColgan (1947) 30 Cal.2d 463, 468 (Mudd).)
For example, in Society of Cal. Pioneers v. Baker (1996) 43 Cal.App.4th 774, 784-785, a case involving a damage claim arising from the misappropriation of a work of art, the court held that because the prior three-year limitations period had not expired by the time the statute was amended, it was proper to apply an enlarged limitations period that added a delayed accrual provision to permit the plaintiff's damage claim to go forward. (See also Mojica v. 4311 Wilshire, LLC (2005) 131 Cal.App.4th 1069, 1072-1073 [enlargement of the period in which to bring personal injury claim applied to a claim that had not lapsed for state law purposes because, prior to the amendment's effective date, the plaintiff filed an action in federal court]; Andonagui v. May Department Stores Company (2005) 128 Cal.App.4th 435, 439-440 (Andonagui) [examining a 2002 enactment extending the limitations period from one year to two years for personal injury actions, and concluding the new law applied because the plaintiff's claim had not lapsed].)
However, when it comes to applying amendments that enlarge the limitations period to claims as to which the limitations period has expired before the amendment became law -- that is, claims that have lapsed -- the analysis is different. Once a claim has lapsed (under the formerly applicable statute of limitations), revival of the claim is seen as a retroactive application of the law under an enlarged statute of limitations. Lapsed claims will not be considered revived without express language of revival. (Douglas Aircraft, supra, 58 Cal.2d at p. 465 [" 'It has been held that unless the statute expressly provides to the contrary any such enlargement applies to matters pending but not already barred' "]; see also 58 Cal.Jur.3d (2004 ed.) Statutes, § 38, pp. 418-419 [amendments that enlarge a limitations period ordinarily do not apply "where the claim was not properly made within the statutory time limit . . . and thus expired prior to the change"].)
For example, in Douglas Aircraft, supra, 58 Cal.2d 462, Douglas Aircraft sought a declaratory judgment to determine whether it had a duty to remit to the State Controller certain unclaimed wages that had been earned by its employees. It needed the judgment to determine whether the wages, as to which the claims limitation period had lapsed, nonetheless were subject to a new statute providing that the statute of limitations would not be a defense to the duty to remit unclaimed property to the State Controller. Because the former limitations period had run before the effective date of the new statute, we found the new statute inapplicable to Douglas Aircraft. We explained that "until the statute of limitations has run it may be extended, whereas after it has run, [defendants] may rely upon it in conducting their affairs." (Id. at p. 465; see also Mudd, supra, 30 Cal.2d at p. 468.) Another example is found in Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 378-379 (Moore), in which a claim upon a crime victim's restitution fund had lapsed and was not revived by a subsequently enlarged limitations period, because the new enactment contained no "clear indication" of legislative intent to revive lapsed claims. The reviewing court commented that "when the Legislature intends to revive time-barred claims it does so expressly." (Id. at p. 379; see also In re David A. v. Superior Court (1993) 20 Cal.App.4th 281, 286-287 (David A.) [interpreting former § 340.1, as amended by Stats. 1990, ch. 1578, § 1, pp. 7550-7552, and pointing out that lapsed claims are not revived in the absence of express language of revival]; Gallo v. Superior Court (1988) 200 Cal.App.3d 1375, 1378 (Gallo) [in the absence of express language of retroactivity, the enlargement of the period in which to sue for damages arising from commission of a felony does not revive claims that had "already expired" under prior law]; id. at pp. 1379, 1383; Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1028-1029 (Krupnick) [an enlargement of the limitations period for personal injury actions did not apply, because the prior period had lapsed, and the amendment's express revival clause for one class of plaintiffs did not encompass the plaintiff's class]; Maldonado v. Harris (9th Cir. 2004) 370 F.3d 945, 955 [same; "Under California law, an extension of a statute of limitations will not apply to claims already barred under the prior statute of limitations unless the Legislature explicitly provides otherwise"].)
The rule is based upon the defendant's interest in repose. "The reason for this rule is a judicial perception of unfairness in reviving a cause after the prospective defendant has assumed its expiration and has conducted his affairs accordingly." (Gallo, supra, 200 Cal.App.3d at p. 1378.) As one court commented, "a statute of limitations grants prospective defendants relief from the burdens of indefinite exposure to stale claims. By reviving lapsed claims, the Legislature may appear to renege on this promise. As Judge Hand wrote, there may be something 'unfair and dishonest' in after-the-fact withdrawal of this legislative assurance of safety." (David A., supra, 20 Cal.App.4th at p. 285.) Individuals, as well as businesses and other enterprises ordinarily rely upon the running of the limitations period: "The keeping of records, the maintenance of reserves, and the commitment of funds may all be affected by such reliance . . . . To defeat such reliance . . . deprives [enterprises] of the ability to plan intelligently with respect to stale and apparently abandoned claims." (Douglas Aircraft, supra, 58 Cal.2d at pp. 465-466.) It is for this reason that we have expressed confidence that "the Legislature would have expressed itself in unmistakable terms had it rejected the established rules governing the interpretation of statutes of limitations." (Id. at p. 466.)
Plaintiffs contend that, notwithstanding the Douglas Aircraft decision, the modern view is that a statute may be applied retroactively if statutory terms merely suggest or imply retroactivity, or if legislative history or the overall context of the statute suggest a retroactive application was intended. The decisions of this court plaintiffs cite in support do not concern revival of lapsed claims. Contrary to plaintiffs' claim that People v. Frazer (1999) 21 Cal.4th 737 (overruled by Stogner v. California (2003) 539 U.S. 607) concerned whether a lapsed claim may be revived in the absence of express or unmistakable language of revival, in that case there was express language of revival (see People v. Frazer, supra, 21 Cal.4th at p. 747) and we were required to decide whether this provision constituted a violation of ex post facto principles or of due process. Plaintiffs have not referred us to a decision by this court that consulted extrinsic sources or found a claim revived in the absence of express language of revival.
Indeed, even the decisions plaintiffs claim are closely analogous afford scant support for their apparent view that a lapsed claim may be revived by ambiguous language or reliance upon legislative history materials. For example, in Philip Morris, supra, 28 Cal.4th 828, in rejecting the claim that the repeal of statutory immunity for products liability based upon exposure to tobacco was retroactive to the immunity period, we observed that the "time-honored presumption against retroactive application of a statute . . . would be meaningless if the vague phrases relied upon by plaintiff and the dissent were considered sufficient to satisfy the test of a 'clear manifest[ation]' [citation] or an ' " ' "unequivocal and inflexible" ' " ' assertion [citation] of . . . retroactivity." (Id. at p. 843.) We continued: "Although we agree with the dissent that 'no talismanic word or phrase is required to establish retroactivity' [citation], we do not agree there is language in the Repeal Statute of the unequivocal and inflexible statement of retroactivity that [is] require[d]." (Ibid.; see also McClung, supra, 34 Cal.4th 467 [holding that a statute imposing personal liability on nonsupervisory workers for harassment of co-workers would not apply retroactively to conduct occurring prior to the enactment, and noting the potential constitutional implications of a contrary view; although we responded to the plaintiff's claim based upon legislative history materials, we did not suggest that legislative history materials alone, in the absence of supporting statutory language, would establish retroactivity].)
Plaintiffs assert that in practice, courts have examined various materials apart from express language of retroactivity to determine whether a lapsed claim has been revived. They rely upon Krupnick, supra, 115 Cal.App.4th 1026. In that case, the plaintiff contended that an extension of the limitations period for personal injury should apply to revive his lapsed claim. The Court of Appeal disagreed. It did not cite the DouglasAircraft decision, but relied on its principle: " '[A]s a rule of statutory construction, it is established that an enlargement of the limitations operates prospectively unless the statute expressly provides otherwise.' " (Krupnick, supra, 115 Cal.App.4th at p. 1029, quoting Gallo, supra, 200 CalApp.3d at p. 1378.) The Krupnick court added that, contrary to the plaintiff's claim that the expansion was retroactive to lapsed claims, the Legislature's express revival of a limited class of claims was proof that other classes of claims would not be revived. Although it offered evidence from the legislative history to assist in its interpretation of the express revival clause, the court did not suggest that legislative history materials could demonstrate that claims could be revived in the absence of unmistakable language in the statute itself.
B. Plaintiffs' Claims Lapsed Prior to 2002
We have demonstrated how important it is, for the purpose of deciding whether a legislatively enlarged limitations period applies to a given case, to determine whether the claim had lapsed prior to the effective date of the new enactment, and to determine what effect the Legislature decided to accord to the lapsing of a claim. Accordingly, as to section 340.1 we review the Legislature's treatment of questions of accrual and lapsing of claims, ultimately concluding that plaintiffs' claims expired by 1998 at the latest.
A cause of action accrues, and the limitations period begins to run, when " 'the cause of action is complete with all of its elements' " (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806). Under certain circumstances, however, the accrual of the action may be postponed and the running of the limitations period tolled "until the plaintiff discovers, or has reason to discover the cause of action. [Citations.] [¶] A plaintiff has reason to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements.' [Citations.] Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period." (Id. at p. 807; see also Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 634.)
The Legislature handled the timeliness of claims relating to childhood sexual abuse in a number of ways during the period in which it enacted and amended section 340.1. We review the applicable limitations periods to determine when, if at all, plaintiffs' claims lapsed, and to illustrate how the Legislature has handled the problems of lapsed claims and delayed discovery of claims.
1. At the Time of the Alleged Abuse Former Section 340 Applied
In 1972 and 1973, when it is alleged that the abuse occurred, the applicable limitations period for claims alleging sexual abuse of a child was one year from the time the cause of action accrued (former § 340, par. 3, as amended by Stats. 1968, ch. 150, § 1, p. 373; DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1015, 1018 (DeRose)), and ordinarily the cause of action accrued at the time of the alleged abuse. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 443; see also Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 210 (Shirk).) For persons who were minors when the alleged abuse occurred, the limitations period was tolled until one year after the time the plaintiff reached the age of majority, that is, until the age of 19. (§ 352, subd. (a); Hightower v. Roman Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759, 765 (Hightower); Tietge v. Western Province of the Servites, Inc. (1997) 55 Cal.App.4th 382, 385; DeRose, supra, at p. 1015.)
Thus the claim of the youngest of the plaintiffs, who was born in 1963,*fn4 lapsed in 1982 when he turned 19 years of age. At the time of the alleged abuse and subsequently there was some authority for applying the common law discovery rule under certain circumstances to delay the accrual of a cause of action based upon childhood sexual abuse.*fn5 As we shall see, however, even if this authority were applied to third party defendants it would not assist plaintiffs' claim that accrual of their cause of action was delayed until they discovered that their adult injuries were caused by the childhood abuse. This is because ultimately the Legislature substituted its own rules for the common law discovery rule, and in 1998 restricted claims against third parties to plaintiffs who had not yet reached the age of 26 -- even if they could allege a delay in discovery that their adult psychological injuries were caused by childhood abuse.
2. 1986 -- Section 340.1 Enacted to Extend to Three Years the Statute of Limitations for Claims Against a Member of the Minor's Household
Section 340.1 was enacted in 1986, and it extended to three years the limitations period for actions alleging sexual abuse of a minor when the perpetrator was a member of the minor's household. (Former § 340.1, added by Stats. 1986, ch. 914, § 1, pp. 3165-3166.) Because of this limitation, it would not have applied to plaintiffs' claims.*fn6
Although the 1986 statute did not apply to third party claims such as plaintiffs', we believe it is significant to our understanding of the Legislature's intent regarding delayed discovery to note that the statute specifically referred to common law delayed discovery principles, providing that "[n]othing 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." (Former § 340.1, subd. (d), added by Stats. 1986, ch. 914, § 1, p. 3166.)
As further evidence that the Legislature provides expressly for the revival of lapsed claims even when a statute embraces a delayed discovery rule, we observe that the 1986 enactment provided: "This section shall apply to both of the following: [¶] (1) Any action commenced on or after January 1, 1987, including any action which would be barred by application of the period of limitation applicable prior to January 1, 1987. [¶] (2) Any action commenced prior to January 1, 1987, and pending on January 1, 1987." (Former § 340.1, subd. (e), added by Stats. 1986, ch. 914, § 1, p. 3166.)
3. 1990 Amendment to Section 340.1 Enlarged the Statute of Limitation to Eight Years Following the Age of Majority and Created Its Own Statutory Delayed Discovery Rule
In 1990, section 340.1 was amended to extend beyond members of the minor's household to reach any perpetrator of sexual abuse against a child. (Stats. 1990, ch. 1578, § 1, p. 7550 et seq.) Although the amended statute applied to direct perpetrators and not third party defendants such as those involved in the present case, the Legislature's expansion of the limitations period, along with its treatment of the delayed discovery rule and the revival of claims again is relevant to our inquiry.
The Legislature amended section 340.1 to significantly enlarge the limitations period from three to eight years following the age of majority (i.e., to age 26). (Stats. 1990, ch. 1578, § 1, p. 7550 et seq.) The amendment also created its own statutory delayed discovery rule, evidencing intent to provide a new rule that would extend delayed discovery principles beyond what had been recognized in the case law. (See DeRose, supra, 196 Cal.App.3d at pp. 1017-1018 [delayed discovery principles did not extend to the plaintiff's failure to recognize that adult psychological injury was caused by childhood abuse]; see also Evans, supra, 216 Cal.App.3d at pp. 1618-1620 [same].) As amended, subdivision (a) of section 340.1 provided: "(a) In any civil action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever occurs later." (Former § 340.1, subd. (a), as amended by Stats. 1990, ch. 1578, § 1, p. 7550, italics added.) As one court commented, "The obvious goal of amended section 340.1 is to allow sexual abuse victims a longer time period in which to become aware of their psychological injuries and remain eligible to bring suit against their abusers." (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court (1994) 25 Cal.App.4th 222, 232 (Debbie Reynolds); see id. at p. 231 [also confirming that the 1990 amendments did not apply to claims against third parties].)
Further, the language of the original 1986 statute that had embraced common law delayed discovery principles -- "[n]othing 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" (former § 340.1, subd. (d), added by Stats. 1986, ch. 914, § 1, p. 3166) -- was deleted. However, for actions brought prior to the effective date of the 1990 amendment, common law delayed discovery principles were maintained: "Nothing in the amendments specified in subdivision (k) [making the amendments applicable to actions commenced on or after Jan. 1, 1991] shall be construed to preclude the courts from applying equitable exceptions to the running of the applicable statute of limitations, including exceptions relating to delayed discovery of injuries, with respect to actions commenced prior to January 1, 1991." (Former § 340.1, subd. (l), added by Stats. 1990, ch. 1578, § 1, p. 7552.)
The 1990 amendment also provided that "[t]he amendments to this section enacted at the 1990 portion of the 1989-90 Regular Session shall apply to any action commenced on or after January 1, 1991." (Former § 340.1, subd. (k), added by Stats. 1990, ch. 1578, § 1, p. 7552.) Because this language did not constitute express language of revival, it was held to be insufficient to revive lapsed claims. (David A., supra, 20 Cal.App.4th at p. 286; see also Lent v. Doe (1995) 40 Cal.App.4th 1177, 1183.)
4. 1994 Amendment to Section 340.1 Expressly Revised Lapsed Claims and Deleted the Remaining Reference to Common Law Delayed Discovery Principles
Section 340.1 was amended for a second time in 1994, and again, although the amendments did not render the statute applicable to third party defendants, the amendments are of interest because of the Legislature's efforts to use express and unmistakable language to govern revival of lapsed claims, as well as for the Legislature's elimination of the remaining reference to common law delayed discovery principles. (Stats. 1994, ch. 288, § 1, pp. 1928-1931.) The 1994 amendment added express language of revival, responding to the David A. decision that had determined that the 1990 amendments had not revived lapsed claims. (Legis. Counsel's Dig., Assem. Bill No. 2846 (1993-1994 Reg. Sess.) 5 Stats. 1994, Summary Dig., p. 111; see Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1651 (1997-1998 Reg. Sess.) as amended July 16, 1998, p. 8; see also David A., supra, 20 Cal.App.4th at pp. 286-287.)
Thus the Legislature added to the language previously providing that "[t]he amendments to this section enacted at the 1990 portion of the 1989-90 Regular Session shall apply to any action commenced on or after January 1, 1991," the additional phrase "including any action otherwise barred by the period of limitations in effect prior to January 1, 1991, thereby reviving those causes of action which had lapsed or technically expired under the law existing prior to January 1, 1991." (Former § 340.1, subd. (o), added by Stats. 1994, ch. 288, § 1, p. 1930, italics added.) With respect to its own 1994 amendments, the Legislature declared its intent "in enacting the amendments to this section enacted at the 1994 portion of the 1993-94 Regular Session, that the express language of revival added to this section by those amendments shall apply to any action commenced on or after January 1, 1991." (Former § 340.1, subd. (p), added by Stats. 1994, ch. 288, § 1, pp. 1930-1931.)
At the same time, the Legislature deleted former subdivision (l), with its reference to the equitable exceptions to the statute of limitations and common law delayed discovery principles. (See Stats. 1994, ch. 288, § 1, p. 1930; Historical and Statutory Notes, 13C West's Ann. Code Civ. Proc. (2006 ed.) foll. § 340.1, p. 173.)
5. 1998 Amendment to Section 340.1 for the First Time Authorized Actions Against Third Party Defendants But Barred Such Actions by Plaintiffs Who Had Attained 26 Years of Age
We now reach the 1998 amendments that for the first time included certain third party defendants within the scope of the enlarged limitations period that was established by the 1990 amendments -- that is, by former section 340.1, subdivision (a), providing that the time to bring an action for childhood sexual abuse may be extended until three years after the plaintiff recognized the connection between adult psychological injury and the childhood abuse (Stats. 1990, ch. 1578, § 1, p. 7550). The 1998 amendment stipulated that the limitations period of subdivision (a) applied "for any of the following actions: [¶] (1) An action against any person for committing an act of childhood sexual abuse. [¶] (2) An 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. [¶] (3) An action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff." (Former § 340.1, subd. (a), as amended by Stats. 1998, ch. 1032, § 1, p. 7785.)
Although the 1998 amendments now included certain third party defendants within the scope of the provision recognizing that the limitations period for child sexual abuse claims could run from the discovery that psychological injury was caused by the childhood abuse, at the same time the amendments provided a separate subdivision directing that no claim against a third party covered by subdivision (a) could be brought once the plaintiff reached the age of 26. Specifically, the 1998 amendment added a new subdivision (b), providing that "[n]o action described in paragraph (2) or (3) of subdivision (a) may be commenced on or after the plaintiff's 26th birthday." (Former § 340.1, subd. (b), added by Stats. 1998, ch. 1032, § 1, p. 7785.)*fn7
Finally, the amendments also declared that the 1998 enactment lengthening the limitations period for claims against third parties did not create "a new theory of liability." (Former § 340.1, subd. (r), added by Stats. 1998, ch. 1033, § 1, p. 7788.)
For a number of reasons, we are confident that the 1998 amendment imposed an absolute bar against instituting a lawsuit against third party defendants once the plaintiff reached the age of 26. Contrary to the suggestion of Justice Liu's dissent that undiscovered claims were not subject to the age 26 cutoff (dis. opn. of Liu, J., post, at p. 2), the 1998 amendment expressed the limit in absolute terms. It did not distinguish between discovered and undiscovered claims, but rather made plain that no third party action brought under section 340.1, subdivision (a) -- a provision that itself provided a limitation period that could be measured from the time of discovery -- may be brought once the plaintiff reaches the age of 26. Absent from subdisivion (b)'s absolute language is any reference to delayed discovery once a plaintiff with a third party claim reached age 26 -- despite the Legislature's evident familiarity with the problem of delayed discovery in the 1990 and 1994 versions of the statute and its awareness of the need for express revival provisions. The Legislature made an obvious choice to use language for claims against third party defendants that differed markedly from the language it still used for claims against direct perpetrators. (See Moore, supra, 112 Cal.App.4th at p. 382 ["An express legislative provision for circumstances which will toll a statute [of limitations] excludes, by necessary implication, all other exceptions"].) As to plaintiffs with claims against these third party defendants, the Legislature elected to toll the limitations period to age 26, but no longer.
Our interpretation was shared by the court in Hightower (Hightower, supra, 142 Cal.App.4th at p. 767; see also Shirk, supra, 42 Cal.4th at p. 208), and indeed, the Court of Appeal in the present case interpreted the 1998 amendments as we have done. Describing the law prior to the 2002 amendments, it observed that unlike for claims against direct perpetrators, "as against third parties, . . . the outside limit was age 26. [Citation.] Thus, under the prior law, any person discovering after age 26 that childhood abuse was the cause of his or her adulthood injuries was barred from suing responsible third parties." Plaintiffs' brief on the merits describes the effect of the 1998 amendments in the same way. Finally, legislative history supports the same interpretation. Attempting to "strike a balance between the interests of the victims and the purpose behind the statute of limitations," the original bill was narrowed to carefully define the third party claims to which it applied and "to require commencement of the action before the plaintiff's 26th birthday." (Sen. Com. on ...