Roe v. Doe 1 ( 2024 )

Filed 12/20/23; Certified for Publication 1/9/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
JOHN GM ROE,
F086315
Plaintiff and Appellant,
(Super. Ct. No. 22CECG04204)
v.
DOE 1 et al., OPINION
Defendants and Respondents.
APPEAL from an order of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.
Nye, Stirling, Hale, Miller & Sweet and Timothy C. Hale for Plaintiff and
Appellant.
No appearance for Defendants and Respondents.
-ooOoo-
Plaintiff John GM Roe1 filed a childhood sexual assault action against three “Doe”
defendants. He alleged he was raped when he was a child by his Boy Scout leader, who
he named as the third Doe defendant. The trial court dismissed the complaint with
prejudice, finding that plaintiff did not timely file certificates of merit complying with
1 This is a pseudonym.
Code of Civil Procedure, section 340.1, subdivisions (f) and (g),2 and that by the time he
filed compliant certificates, the statute of limitations had run.
On appeal, plaintiff argues that Emergency rule 9, enacted by the Judicial Council
of California in response to the COVID-19 pandemic, tolled the statute of limitations
governing his claims such that the limitations period had not yet run when the court
dismissed his complaint. He thus contends the dismissal should have been without
prejudice so he could refile his complaint and certificates of merit before the limitations
period expired. We agree with plaintiff and reverse the trial court’s order dismissing his
claims with prejudice.
LEGAL BACKGROUND AND FACTS
I. Section 340.1 and Emergency Rule 9
Section 340.1 governs the period within which a plaintiff must bring a tort claim
based on childhood sexual assault.3 Subdivision (a) of section 340.1 specifies that causes
of action for childhood sexual assault against direct perpetrators can be brought within
22 years of the plaintiff reaching the age of majority or within five years of the time the
plaintiff discovered that psychological injury occurring after the age of majority was
caused by the assault, whichever occurs later. (§ 340.1, subd. (a).)
Section 340.1, subdivision (a), provides that these time periods apply to actions
brought against a direct perpetrator (subd. (a)(1)), a person owing a duty of care to the
plaintiff (subd. (a)(2)), and a person or entity who commits intentional acts that are a
legal cause of the assault that resulted in the plaintiff’s injury (subd. (a)(3)).
Effective January 1, 2020, Assembly Bill 218 added subdivision (q) to
section 340.1. (Stats. 2019, ch. 861 (A.B. 218), § 1.) That subdivision provides:
2 Undesignated statutory references are to the Code of Civil Procedure.
3 “Childhood sexual assault” is defined as acts proscribed by enumerated Penal
Code provisions. (§ 340.1, subd. (d).)
2.
“Notwithstanding any other provision of law, any claim for damages
described in paragraphs (1) through (3), inclusive, of subdivision (a) that
has not been litigated to finality and that would otherwise be barred as of
January 1, 2020, because the applicable statute of limitations, claim
presentation deadline, or any other time limit had expired, is revived, and
these claims may be commenced within three years of January 1, 2020.”
(Former § 340.1, subd. (q).)
Section 340.1 also imposes a certificate of merit requirement on some plaintiffs.
Every plaintiff age 40 or older when an action for childhood sexual assault is filed must
file certificates of merit executed by the attorney for the plaintiff and by a licensed mental
health practitioner selected by the plaintiff.4 (§ 340.1, subds. (f) & (g).) The attorney’s
certificate must affirm that the attorney has reviewed the case facts, consulted with a
mental health practitioner who he or she believes is knowledgeable of the facts and issues
of the action, and concluded that there is “reasonable and meritorious cause for the filing
of the action.” (§ 340.1, subd. (g)(1).) The licensed practitioner’s certificates must
affirm he or she is licensed in California and not a party to the action, is not treating and
has not treated the plaintiff, has interviewed the plaintiff, and has concluded that in his or
her professional opinion there is a reasonable basis to believe that the plaintiff had been
subject to childhood sexual abuse. (§ 340.1, subd. (g)(2).)
If the attorney is unable to obtain the required consultation before the statute of
limitations would run, the certificate may so declare, and must be filed within 60 days
after the complaint is filed. (§ 340.1, subd. (g)(3).) The certificates under section 340.1,
subd. (g)(1) and (2) must be filed within the applicable limitations period for the action,
or the action is subject to dismissal, where those certificates do not contain the
declaration under section 340.1, subdivision (g)(3). (§ 340.1, subd. (k) [failure to file
compliant certificates is grounds for demurrer or motion to strike].) Thus, the certificates
4 Though plaintiff’s complaint does not reveal how old he is, the fact that he
obtained certificates of merit means he must be at least 40.
3.
of merit, when required, are an indispensable “ ‘aspect of the complaint.’ ” (Doe v. San
Diego-Imperial Council (2015) 239 Cal.App.4th 81, 87.)
A childhood sexual assault complaint may not be served on the defendant until the
court has reviewed the certificates of merit and has found, in camera, based solely on the
certificates, that there is a reasonable and meritorious cause for filing the action.
(§ 340.1, subd. (i).) The duty to serve the defendant with process does not attach until
that time. (Ibid.)
Emergency rule 9, effective April 6, 2020, provides: “Notwithstanding any other
law, the statutes of limitations and repose for civil causes of action that exceed 180 days
are tolled from April 6, 2020, until October 1, 2020[.]” (Former Cal. Rules of Court,
App. I, rule 9 (“Emergency rule 9”) (Former Cal. Rules of Court, Appx. I, rule 9
(“Emergency rule 9”), eff. Jan. 21, 2022 to March 10, 2022.) Emergency rule 9 was
amended, effective March 11, 2022, without change to this quoted portion. The Advisory
Committee’s comment says that Emergency rule 9 “is intended to apply broadly to toll
any statute of limitations on the filing of a pleading in court asserting a civil cause of
action[.]”
With these background laws provided, we now summarize the relevant facts from
the proceedings below.
II. Facts
Plaintiff prepared his complaint, summons, civil case cover sheet, and the
certificates of merit required by section 340.1 for concurrent filing on December 30,
2022. The seven-count complaint against three “Doe” defendants stemmed from the
sexual abuse he suffered when he was a Boy Scout. The superior court clerk instructed
plaintiff’s counsel’s paralegal to electronically file only redacted versions of the
certificates of merit, and to mail the unredacted copies to the court so they could be given
to the judge. Plaintiff electronically filed his complaint on December 30, 2022, including
the redacted versions of the certificates of merit as instructed. The redacted versions
4.
were completely redacted; only the caption and signature lines could be read. Because of
claimed clerical error by plaintiff’s counsel’s staff, the unredacted certificates were not
delivered to the court until March 22, 2023.
The same day, plaintiff filed a request for the court to conduct its in camera review
of the complaint for reasonable and meritorious cause under section 340.1, subd. (i). On
March 24, 2023, the superior court issued an “Order Denying Request to Find a
Reasonable and Meritorious Cause for Filing an Action Against Does 1, 2, or 3 and
Dismissing the Case with Prejudice.” The court denied the request because the
unredacted certificates of merit were not filed with the complaint, nor filed within 60
days of the complaint.
The court’s order noted that plaintiff filed his complaint and redacted certificates
of merit on December 30, 2022, but did not file unredacted certificates until March 22,
2023. The order stated:
“[S]ection 340.1 requires the certificates of merit be filed with the
complaint. [Section] 340.1[, subd. ](g)(3) describes the additional
information required if there is a valid basis for why the certificates could
not be filed with the complaint. If there is a basis for delay, the certificates
of merit are required to be filed within sixty (60) days of the filing of the
complaint.”
The court noted the redacted certificates were “entirely redacted,” giving “[n]o
information beyond the caption and signature[.]” The court found the unredacted
certificates—which were the first certificates filed which complied with section 340.1—
were untimely as they were filed 82 days after the complaint was filed. The court also
dismissed the suit with prejudice, holding the “statute of limitations has run and
[p]laintiff is no longer able to file a complaint with proper certificates.”
On April 11, 2023, plaintiff moved on an ex parte basis for reconsideration of the
court’s order dismissing the complaint. Plaintiff argued that Emergency rule 9 tolled the
revival period of section 340.1, subdivision (q), such that plaintiff’s claims would not
expire until June 27, 2023. Plaintiff reasoned that Emergency rule 9 tolls the statutes of
5.
limitations on civil causes of action from April 6, 2020, to October 1, 2020, or 178 days.
He then observed that 178 days after December 31, 2022—the date when section 340.1,
subdivision (q)’s three-year revival period would lapse—would be June 27, 2023.
Plaintiff asserted that, “at a minimum, th[e] action should [have been] dismissed without
prejudice to allow [him] time to refile the instant action before time to do so expires.”
The court held a hearing on the motion on April 12, 2023, and entered an order the
same day denying the motion.
At the hearing, the court explained its conclusion that Emergency rule 9 did not
toll section 340.1, subdivision (q)’s three-year revival period. The court stated:
“[W]hen it comes to [the] statute of limitations. 340.1(a) lays out
that statute of limitations is 22 years from when you turn 18, or there’s also
a second prong in there. Where we’re at, I think, is in (q), which talks
about what you can do to revive something that is already barred by [the]
statute of limitations.”
[¶] … [¶]
“It’s not setting a new statute. It’s giving a window with the date
certain of January 1, 2023, within which you can revive something that is
already time-barred under the statute of limitations. So I don’t think
Emergency Rule 9 would extend that, because it’s not talking about a
separate statute, it’s just talking about a way to breathe life back into
something that already hit that statute of limitations decades ago.”
Plaintiff’s counsel at the hearing reasserted that Emergency rule 9 extended the
statute of limitations to June 27, 2023. The court responded, “But to do that, I’d have to
read 340.1, subdivision (q), as a separate and distinct statute of limitations, correct?”
Counsel answered that “the extraordinary nature of what happened with this pandemic is
going to permit a situation where that would likely be the outcome[,]” that the statute of
limitations would be extended. The court replied, “It will be good news to me to get a
court of appeal to give me something firm on that, but […] just a reading of the statute, to
me, [section 340.1, subdivision] (q), does not appear to me to be a statute of limitations.”
6.
The court said it would “throw a coin in the wishing well” that the Court of Appeal
would find grounds for reversal, but felt it was bound to dismiss the case as time-barred.
APPEALABILITY
Plaintiff appeals from the order entered March 24, 2023, dismissing the case with
prejudice. An appeal may be taken from “a judgment.” (§ 904.1, subd. (a)(1).) An order
of dismissal is an appealable “judgment” if it is (i) in writing, (ii) signed by the court, and
(iii) filed in the action. (§ 581d; City of Los Angeles v. City of Los Angeles Employment
Relations Board (2016) 7 Cal.App.5th 150, 157.) The dismissal order meets these three
requirements and is thus appealable.
DISCUSSION
The dismissal order appealed from proceeds in two steps, so to speak. At the first
step, the trial court denied plaintiff’s request to find reasonable and meritorious cause
because the unredacted certificates of merit were (i) not filed with the complaint and
(ii) not filed within 60 days of the complaint. The order implies that this untimeliness
required dismissal, though not necessarily with prejudice. Then, at the second step, the
court held the complaint must be dismissed with prejudice because the statute of
limitations had run. Plaintiff appears to recognize this structure of the order. But he does
not develop an argument that the court should not have dismissed the complaint at all.
Instead, he argues only that the dismissal should not have been with prejudice. We
therefore limit our review to that argument.
To be clear, plaintiff contends the trial court erred in dismissing his complaint with
prejudice on grounds that his claims were time-barred. His argument begins, as it did
below, by recognizing that section 340.1, subdivision (q), created a three-year lookback
window, reviving all civil claims arising from childhood sexual assault that were barred
as of January 1, 2020, and allowing such claims to be brought within three years of
January 1, 2020. He next contends that Emergency rule 9 tolled this three-year revival
period for 178 days—from April 6, 2020, to October 1, 2020—moving the deadline to
7.
file childhood sexual assault claims to June 27, 2023. He asserts that had the court
dismissed his case without prejudice, he would have been able to timely refile his
complaint and certificates of merit ahead of the June 27, 2023, deadline. He is correct on
all points.
The trial court found section 340.1, subdivision (q)’s three-year revival period was
not a statute of limitations, and from this we can infer the court’s implied finding
Emergency rule 9 did not toll that three-year period because Emergency rule 9 tolls
“statutes of limitations.” But contrary to the court’s finding, section 340.1,
subdivision (q), is part of a statute of limitations. “ ‘Statute of limitations’ is the
collective term applied to acts or parts of acts that prescribe the periods beyond which a
plaintiff may not bring cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005)
35 Cal.4th 797, 806.) Subdivision (q) is “part of” section 340.1, the statute that governs
the period within which a plaintiff must bring a tort claim based on childhood sexual
assault. Thus, Emergency rule 9, which tolled statutes of limitations for civil causes of
action that exceed 180 days, tolled section 340.1, subdivision (q)’s three-year lookback
window for 178 days. Plaintiff’s claims thus did not expire until June 27, 2023, and so
the dismissal order should have been without prejudice. Had the dismissal been without
prejudice, it is virtually certain plaintiff would have timely refiled his complaint and
certificates of merit.
8.
DISPOSITION
The trial court’s March 24, 2023, order is reversed and the matter is remanded to
allow plaintiff to refile his complaint and certificates of merit. Plaintiff shall have
95 days after the remittitur issues to file his complaint.
SNAUFFER, J.
WE CONCUR:
PEÑA, Acting P. J.
MEEHAN, J.
9.
Filed 1/9/24
CERTIFIED FOR PUBLICATION
IN THE
Court of Appeal of the State of California
IN AND FOR THE
Fifth Appellate District
JOHN GM ROE,
F086315
Plaintiff and Appellant,
(Super. Ct. No. 22CECG04204)
v.
DOE 1 et al., ORDER GRANTING
REQUESTS FOR
Defendants and Respondents. PUBLICATION
As the nonpublished opinion filed on December 20, 2023, in the above entitled
matter hereby meets the standards for publication specified in the California Rules of
Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the
Official Reports.
SNAUFFER, J.
PEÑA, Acting P. J.
MEEHAN, J.