Appellant sued respondent on account of alleged sexual abuse that had occurred between 20 and 13 years earlier. In her complaint, appellant attempted to state causes of action for assault, battery, and intentional and negligent infliction of emotional distress.
The superior court sustained respondent's demurrer to the original complaint without leave to amend on the ground that it was barred by the statute of limitations. (Code Civ. Proc., § 340, subd. (3).) We affirm.
Respondent Carswell is appellant DeRose's step-grandfather. DeRose alleges that Carswell sexually abused her beginning when she was four years old and ending when she was eleven (from 1966 to 1973). According to the allegations, Carswell's acts "were all committed against [DeRose's] will and without her consent," and [DeRose] "felt great fear and acceded to [Carswell's] acts due to her perceptions of his greater size and strength and his ability and intent to carry out his threats of harm." Plaintiff also alleges that she continues to suffer emotional injuries as a result of the sexual abuse. DeRose, however, did not immediately discover the injuries and their cause "due to the nature of the acts of the defendant, and the psychological mechanisms experienced by [DeRose] to deny, repress and dissociate herself from the underlying events, or to seek therapeutic intervention until within the last six months."
The limitations period applicable to DeRose's causes of action for assault and battery, and intentional and negligent infliction of emotional distress, is one year. (Code Civ. Proc., § 340, subd. (3).) The statute of limitations was tolled until March 2, 1980, when DeRose became an adult. (Code Civ. Proc., § 352, subd. (a).) Thus, unless some exception applies, the statute of limitations barred DeRose's claims as of March 2, 1981. DeRose filed her complaint on January 13, 1986, four years and ten months later.
DeRose contends that the statute of limitations does not bar her claims for four reasons. First, she argues that she is entitled to invoke the delayed discovery doctrine because she did not appreciate until recently the causal relationship between the alleged assaults and her emotional injuries, even though she was aware of the assaults. Second, she contends that the decision in Zambrano v. Dorough (1986) 179 Cal.App.3d 169 [224 Cal.Rptr. 323], permits her to state a separate cause of action based solely upon the subsequent emotional harm. Third, she maintains that Carswell is estopped to assert the statute of limitations because of his past wrongful conduct. Fourth, she claims that her inability until recently to understand what caused the emotional injuries constituted "insan[ity]" within the meaning of Code of Civil Procedure section 352, subdivision (a). DeRose also challenges the superior court's decision to sustain Carswell's demurrer without leave to amend.
A. Delayed Discovery
In her brief on appeal, DeRose presents information from psychological and sociological literature about incestuous sexual abuse. DeRose discusses the prevalence of the problem and the psychological and familial pressures against discussing it privately or publicly. These pressures, DeRose explains,
This case, however, does not require us to determine the validity of any psychological theory or to articulate general rules governing the delayed discovery doctrine's application in sexual abuse cases. We do not address those questions because the allegations of DeRose's complaint affirmatively show that she cannot satisfy the minimum conditions for application of the delayed discovery rule.
The statute of limitations ordinarily begins to run "upon the occurrence of the last fact essential to the cause of action." (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 296 [146 Cal.Rptr. 271].) In personal injury cases, the wrongful act often causes immediate harm. But in some cases where injury was inflicted without perceptible trauma courts have held that the statute does not begin to run until the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, all of the facts which are essential to the cause of action. (Ibid.) The doctrine's paradigmatic application is to medical malpractice cases (see, e.g., Huysman v. Kirsch (1936) 6 Cal.2d 302, 311-313 [57 P.2d 908]), but courts have applied the doctrine in other contexts as well. (See, e.g., Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, 731 [152 Cal.Rptr. 27] [libel]; Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 314-315 [132 Cal.Rptr. 860] [invasion of privacy]; G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25 [122 Cal.Rptr. 218] [prescription drugs]; Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 989-991 [120 Cal.Rptr. 312] [negligent breach of contract].)
Whatever the context, the delayed discovery doctrine applies only when a plaintiff has not discovered all of the facts essential to the cause of action. Conversely, if the plaintiff has discovered all of the essential facts, the doctrine does not apply. In this case, the allegations of the complaint leave no doubt that DeRose was actually aware long ago of the facts necessary to state a cause of action against Carswell based upon the sexual assaults. In her complaint, DeRose alleged affirmatively that the assaults "were all committed against plaintiff's will and without her consent" and that, "[a]t the times of said sexual molestation, plaintiff felt great fear and acceded to defendant's acts due to her perceptions of his greater size and strength and his ability and intent to carry out his threats of harm." The immediate harm caused by the alleged assaults gave DeRose a right to sue at that time. (Sonbergh v. MacQuarrie (1952) 112 Cal.App.2d 771, 773-774 [247 P.2d 133].)
DeRose argues that her cause of action did not accrue until she experienced later emotional harm and recognized its connection with the earlier
If DeRose could and did allege that she repressed her memories of the sexual assaults until one year before filing her complaint, she might be able to invoke the delayed discovery rule.
At the hearing on the demurrer, the superior court specifically discussed with DeRose's counsel the interpretation and effect of the complaint's delayed discovery allegations. Counsel's remarks made it clear that DeRose does not interpret her own complaint to allege that she had repressed her memories of the sexual assaults. "[COUNSEL]: And the medical literature we cited in the brief I think attests to the fact that there are times, frankly, and it's in the literature, where they're
Counsel's response, "[n]ot as alleged," naturally raised the question whether DeRose could make such allegations if afforded leave to amend. The court also asked this question, and counsel's response demonstrated that DeRose would not be able to make the necessary allegations. "THE COURT: She was aware of the fact she was injured? [COUNSEL]: Correct. [¶] Well, she was aware she was molested. And she was aware of the wrongful act. [¶] It's a tort, and we are talking four elements here. We are talking wrongful — THE COURT: She was aware of the wrongful act. She was aware of the incidents that took place. [COUNSEL]: True." Counsel went on to explain the very different theory underlying this action: "But the key thing is the other element of the tort, namely proximate causation, we are saying that it was not until the plaintiff began receiving psychological therapy that she began to make the connection and was able to make the connection between her present injuries and the earlier misconduct."
On appeal, DeRose's position has not changed. She does not suggest that she repressed the memories of the sexual assaults.
As a matter of law, for the reasons discussed above, DeRose's allegations do not justify application of the delayed discovery doctrine. Because she has disclaimed the ability to make the allegations that might justify the doctrine's application, the court properly sustained the demurrer.
The First Appellate District's recent decision in John R. v. Oakland Unified School District, supra, 194 Cal.App.3d 1454,
While we have no reason to doubt that DeRose might have stated valid causes of action were it not for the statute of limitations, we are bound by the statute as by other legislative acts. On this point, the Legislature has recently increased to three years the limitations period applicable to civil actions for injury based upon specified types of sexual abuse, including incest. (Code Civ. Proc., § 340.1, added by Stats. 1986, ch. 914, § 1.) The new statute (Code Civ. Proc., § 340.1), however, does not make this action timely. Even under a three-year limitations period, this action would have been commenced almost two years too late.
A Washington Court of Appeals recently declined to apply that state's delayed discovery doctrine under circumstances functionally identical to those presented here. The plaintiff in that case, like DeRose, alleged that she was sexually abused as a child by her grandfather. Also like DeRose, the plaintiff was aware of the sexual abuse but was not aware of the causal connection between the abuse and subsequent emotional harm until she began therapy. (Raymond v. Ingram, supra, 737 P.2d 314 at pp. 316-317.) The court observed that "[i]t does not matter that [the plaintiff] had not discovered the causal connection to all her injuries, because when [she] reached the age of majority she knew that she had substantial damages associated with the sexual abuse." (Id. at p. 317.)
The case at bar presents similarly critical evidentiary problems. Indeed, DeRose's counsel has stated that there "are no witnesses." Unlike the court in Tyson, however, we have no occasion to reinterpret the delayed discovery rule. Since DeRose was aware of the alleged sexual assaults, and since she suffered cognizable harm at the time (Sonbergh v. MacQuarrie, supra, 112 Cal. App.2d at pp. 773-774), California's delayed discovery rule does not apply. (Saliter v. Pierce Brothers Mortuary, supra, 81 Cal. App.3d at pp. 297-298.)
B. Zambrano v. Dorough
Before discussing the Zambrano decision, it is necessary to identify the legitimate scope of the rule which DeRose asks us to apply. There are times when a tort initially causes injuries so insubstantial that it is not reasonable to expect the victim to file a lawsuit, even though she would be entitled to at
More recently, courts have modified the traditional rule in order to avoid punishing the plaintiff, who, having acted reasonably in not prosecuting a lawsuit for insignificant damages, later suffers more substantial harm. The Supreme Court in Davies v. Krasna, supra, observed that "we have drifted away from the view held by some that a limitations period necessarily begins when an act or omission of defendant constitutes a legal wrong as a matter of substantive law.... Rather we generally now subscribe to the view that the period cannot run before plaintiff possesses a true cause of action, by which we mean that events have developed to a point where plaintiff is entitled to a legal remedy, not merely a symbolic judgment such as an award of nominal damages." (14 Cal.3d at p. 513.) The Court also formulated a rule of general application, by which we are bound: "although a right to recover nominal damages will not trigger the running of the period of limitation, the infliction of appreciable and actual harm, however uncertain in amount, will commence the statutory period." (Id. at p. 514.)
The rule in Davies does not make DeRose's complaint timely. If she had sued in 1980 based upon the incidents of sexual abuse alleged in her complaint, she would certainly have been entitled to more than a "symbolic judgment ... of nominal damages." (Id. at p. 513.) Indeed, the sexual assaults that DeRose alleges are so serious that the Legislature has defined them as felonies.
There is no principled basis on which we can say that the immediate harm caused by these wrongful acts — horrible, if true as alleged — was
Instead of relying on Davies, DeRose invokes Zambrano v. Dorough, supra, which ventured a far-reaching and, we believe, unjustified extension of the rule in Davies. The court in Zambrano allowed a plaintiff to bring an action for medical malpractice against a physician more than one year after discovering the physician's negligence. Although the plaintiff knew within one year that she had suffered injuries that the court characterized as "relatively minor" (Zambrano, supra, 179 Cal. App.3d at p. 172), the plaintiff later suffered additional injuries. Under those circumstances, the court held that the rule against splitting a cause of action did not prevent a suit based upon the later injuries.
The problem with the Zambrano opinion is that the facts of the case did not justify application of the Davies rule. The Zambrano plaintiff's earlier injuries, as to which the statute of limitations had already run, were quite serious. This is clear from the opinion, which describes the earlier harm as an incorrect determination that the plaintiff had miscarried an undetected pregnancy, an unnecessary dilation and curettage, acute pain, passing of large blood clots, a failure to diagnose an ectopic pregnancy, a ruptured fallopian tube, and surgery to treat the ruptured fallopian tube. Nevertheless, the Zambrano court characterized this earlier harm as "relatively minor" and as the "transitory damages of discomfort and distress." (Zambrano, supra, 179 Cal. App.3d at pp. 172, 174.)
The same act of malpractice eventually caused additional harm to the Zambrano plaintiff's reproductive system, including the need for a complete hysterectomy with a resulting loss of fertility. While the subsequent harm was certainly severe, that did not make the earlier harm "nominal" or even "relatively minor." Thus, under Davies, the "appreciable and actual harm" that the plaintiff suffered at or before the time of the initial surgery would have "commence[d] the statutory period." (Davies, supra, 14 Cal.3d at p. 514.) But the Zambrano court did not even cite, much less attempt to reconcile its holding with, Davies.
Apparently unwilling to rely solely upon the difference in degree between the earlier and later injuries, the Zambrano court also held that the earlier injury to plaintiff's reproductive system and the subsequent loss of fertility constituted invasions of different primary rights. (Zambrano, supra, 179 Cal. App.3d at p. 174.)
Martinez-Ferrer involved a plaintiff who developed cataracts 12 years after using an anticholesterol drug. The drug initially caused a rash that lasted six weeks. The court believed that Davies did not apply because the court viewed the earlier harm as more than nominal.
The Martinez-Ferrer court's assault on the rule against splitting a cause of action was completely unnecessary, because the rule in Davies would have permitted the Martinez-Ferrer plaintiff to sue for cataracts 12 years after experiencing a short-lived rash. We do not believe that the court in Davies can reasonably be interpreted as having used the term "nominal" in the restrictive sense of "one dollar." Thus, in its result, Martinez-Ferrer is consistent with Davies; Zambrano is not. Zambrano subsumed "significant" harm under the "nominal" harm heading and then contradistinguished that injury from "substantial" harm, thereby vastly expanding the rule which excuses compliance with the statute of limitations. If the facts of Zambrano justified application of such a rule, Zambrano would virtually obliterate that statute.
Because the Zambrano decision conflicts with Davies, Zambrano does not represent a legitimate extension of the rule that nominal harm does not trigger the statute of limitations. Under Davies, "the infliction of appreciable and actual harm, however uncertain in amount, will commence the statutory period." (14 Cal.3d at p. 514.) Because, in the case at bar, DeRose
While it is true that a defendant whose conduct induces delay in filing suit may be estopped to assert the statute of limitations (see, e.g., Ginns v. Savage (1964) 61 Cal.2d 520, 524-525 [39 Cal.Rptr. 377, 393 P.2d 689]), the usual context for an estoppel argument is a history of negotiations between the parties that lead one side to believe that claims will be settled. Basing an estoppel on threats appears to be a novel but plausible application of the estoppel rule.
The fundamental problem with DeRose's estoppel argument is that she did nothing to pursue her claims even after Carswell's conduct ceased. Carswell argues based upon Lobrovich v. Georgison (1956) 144 Cal.App.2d 567 [301 P.2d 460], that, "[i]f there is still ample time to institute the action within the statutory period after the circumstances inducing delay have ceased to operate, the plaintiff who failed to do so cannot claim an estoppel." (Id. at pp. 573-574.) The complaint is not ambiguous about when Carswell's alleged threats ceased. DeRose expressly alleged that that conduct occurred "[du]ring the time period of the incidents alleged," that is, "when she was approximately four years old and until she was 11 years old (1966-1973)." The court in the Lobrovich case held that five weeks were sufficient time for the plaintiff to institute an action after the conduct giving rise to an estoppel ceased. In this case, DeRose had a year to file suit as an adult.
DeRose also makes another estoppel argument. Giving the most generous reading to the complaint, it is possible to link the estoppel allegations with the allegations of psychological repression. In other words, while Carswell's alleged threats ended in 1973, the past threats continued to affect DeRose's ability to appreciate the causal relationship between the assaults and her subsequent emotional injuries. This argument, however, merely repeats the error of the delayed discovery argument. Both arguments fail because DeRose was aware of the assaults and perceived them as offensive; accordingly, DeRose had a right to sue based upon the harm she knew even before she fully understood the cause of any subsequent emotional harm.
On appeal, DeRose does not suggest that she was "incapable of caring for [her] property or transacting business, or understanding the nature or affects of [her] acts." (Id. at p. 571.) Instead, DeRose apparently hopes to demonstrate a kind of insanity based upon the same allegations that underlie her argument for "delayed discovery." Indeed, the complaint contains no other allegations about DeRose's psychological condition. Construing the allegations as favorably as possible to DeRose, the complaint asserts that DeRose's inability to appreciate the connection between the assaults and her subsequent emotional injuries disabled her from bringing suit based upon the subsequent injuries. Construed in this way, however, DeRose's
DeRose also makes the novel argument that a person subjected to undue influence is "insane" for the purposes of Code of Civil Procedure section 352. The cases on which DeRose relies, however, do not support her argument. In Triplett v. Williams (1969) 269 Cal.App.2d 135 [74 Cal.Rptr. 594], the court did not discuss insanity at all; it merely observed that "during whatever time [a potential plaintiff] was of unsound mind, the statute was tolled." (Id. at p. 137.) The decision does not remotely suggest that undue influence is equivalent to insanity under Code of Civil Procedure section 352.
DeRose also relies on Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773 [157 Cal.Rptr. 392, 598 P.2d 45], but misinterprets that case in two respects. First, the Supreme Court in Wyatt did not purport to discuss Code of Civil Procedure section 352, the insanity provision. Second, although the court did discuss undue influence, it discussed the subject only to support its holding on a point unrelated to the case at bar. The plaintiff in Wyatt, who had borrowed money through a mortgage loan broker, sued the broker and related persons for breach of fiduciary duty and civil conspiracy. The broker had misrepresented the terms of the loan, including the extent of interest, late charges, and balloon payments. The broker continued to assess late charges "up until — and even after — the filing of the complaint." (Id. at p. 787.) On these facts, the Supreme Court confirmed previous decisions holding that, "when a civil conspiracy is properly alleged and proved, the statute of limitations does not begin to run on any part of a plaintiff's claims until the `last overt act' pursuant to the conspiracy has been completed." (Id. at p. 786, quoting from Schessler v. Keck (1954) 125 Cal.App.2d 827, 832-833 [271 P.2d 588].)
It is in the foregoing context that the Supreme Court's remarks about undue influence must be read: "[w]hen, as here, the underlying fraud is a continuing wrong, a convincing rationale exists for delaying the running of the statute of limitations. Just as the statute of limitations does not run against an action based on fraud so long as the fraud remains concealed, so ought the statute to be tolled even after the fraud is discovered, for so long as the sheer economic duress or undue influence embedded in the fraud continues
Disregarding for argument's sake their irrelevance to Code of Civil Procedure section 352's insanity provision, the Supreme Court's remarks in Wyatt about undue influence still do not support DeRose's position. Wyatt articulated a rule that applies only to civil conspiracies. The Court specifically declined to decide "whether this principle would apply, even if the continuing fraud were pursued by one person acting alone." (Id. at p. 788, fn. 5.) Moreover, even if this case were sufficiently like fraud to raise legitimately the question whether Wyatt should be extended to cases involving single defendants, to apply Wyatt to the case at bar would still be incorrect. Unlike the wrongful acts in Wyatt, which continued even as the complaint was being filed, Carswell's alleged threats ended 13 years before DeRose's complaint. In essence, DeRose's undue influence argument merely repeats her estoppel argument.
Because DeRose did not allege that she was insane within the meaning of Code of Civil Procedure section 352, the superior court properly did not interpose the statute as an obstacle to the demurrer.
E. Dismissal Without Leave to Amend
DeRose's right to sue in 1980 based upon the assaults is the fundamental obstacle to her suit in 1986. No argument addressed to her understanding of the causation of subsequent emotional harm, whether phrased as delayed discovery, estoppel, or insanity, can avoid that obstacle.
Although DeRose did not ask the superior court for leave to amend, the court was nevertheless required to consider whether there was a reasonable possibility that amendment could cure the complaint's defects. (Scott v. City of Indian Wells, supra, 6 Cal.3d at pp. 549-550.) At the hearing on the demurrer, the superior court raised the issue and specifically asked DeRose's counsel appropriate questions to determine whether the opportunity to amend would be useful. In order to avoid the statute of limitations, DeRose would have had to contradict the affirmative allegations of her original complaint to the effect that she was aware of the assaults. As discussed above, the following exchange supported the court's decision to sustain the demurrer without leave to amend. "THE COURT: She was aware of the fact she was injured? [COUNSEL]: Correct. Well, she was aware she was molested. And she was aware of the wrongful act."
Nothing in DeRose's statement addresses her awareness of the original assaults. Additional facts "regarding the nature of the misconduct, itself," will not help to overcome that fundamental obstacle. DeRose's remark about "the coercive actions of the respondent" may be intended to suggest that additional facts exist to support the estoppel argument. However, DeRose affirmatively alleged that the coercive acts ceased 13 years before she filed suit; she has not offered to contradict that allegation. The remainder of DeRose's statement addresses only her failure to recognize the causal connection between the assaults and the subsequent emotional harm. That failure, as explained above, is not relevant.
Although leave to amend should normally be granted, there are cases in which it is not reasonable to expect that the plaintiff will be able to allege a valid cause of action. (Leakes v. Shamoun (1986) 187 Cal.App.3d 772, 778 [232 Cal.Rptr. 171].) It is within the court's discretion to deny leave where "the action is barred as a matter of law" or "[i]f, from the nature of the defects in the complaint it appears that the plaintiff cannot state a cause of action." (State of California Automobile Dismantlers Assn. v. Interinsurance Exchange (1986) 180 Cal.App.3d 735, 742 [225 Cal.Rptr. 676], citing Saliter v. Pierce Brothers Mortuaries, supra, 180 Cal. App.3d at p. 742; and La Vista Cemetery Assn. v. American Sav. & Loan Assn. (1970) 12 Cal.App.3d 365, 369 [90 Cal.Rptr. 722].)
We hold that the superior court did not abuse its discretion by denying leave to amend. We base this decision on the affirmative allegations of the
The judgment of dismissal is affirmed.
Agliano, P.J., and Capaccioli, J., concurred.
A petition for a rehearing was denied January 5, 1988, and appellant's petition for review by the Supreme Court was denied March 17, 1988. Broussard, J., was of the opinion that the petition should be granted.
The attempt to create two separate primary rights corresponding to physical and emotional harm also contradicts the common recognition that a sexual assault injures both person and feelings, as well as the rule that a single tort gives rise only to one cause of action. (Cf. Pen. Code, § 263 [originally enacted in 1872] ("[t]he essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape."); see also fn. 5, ante.)
Since there was no proof that the defendants' drug caused the macula edema, one cannot escape the conclusion that the court could have relied upon Davies. There is no indication in the opinion that the rash known to have been caused by the drug would on its own have justified the economic burden of a lawsuit.