Opinion
D066722
02-05-2018
LATRICE RUBENSTEIN, Plaintiff and Appellant, v. DOE No. 1 et al., Defendants and Respondents.
Law Offices of Elliott N. Kanter, Elliott N. Kanter, Justin O. Walker; Esner Chang & Boyer, Holly N. Boyer and Shea S. Murphy for Plaintiff and Appellant. Daley & Heft, Richard J. Schneider and Lee H. Roistacher for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for pub or ordered published for purposes of rule 8.1115. (Super. Ct. No. ECU08107) APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa, Judge. Affirmed. Law Offices of Elliott N. Kanter, Elliott N. Kanter, Justin O. Walker; Esner Chang & Boyer, Holly N. Boyer and Shea S. Murphy for Plaintiff and Appellant. Daley & Heft, Richard J. Schneider and Lee H. Roistacher for Defendant and Respondent.
This matter is before us on remand from the California Supreme Court. In 2012 Latrice Rubenstein filed a claim under the Government Claims Act (Gov. Code, §§ 810, 905) with defendant Doe No. 1 (defendant), a public entity, alleging that from 1993 to 1994, when she was a high school student, her cross-country and track coach, who was defendant's employee, sexually molested her. When the claim was denied, she commenced this action against defendant and defendants Does Nos. 2-20. She alleged that latent memories of the sexual abuse resurfaced in early 2012, when she was about 34 years old. The trial court sustained defendant's demurrer without leave to amend concluding that the matter was time barred. Rubenstein timely appealed from the judgment of dismissal.
In our original decision we concluded, among other things, that Rubenstein's 2012 claim concerning abuse that allegedly occurred from 1993 to 1994 was timely. The court stated that our analysis "present[ed] the question of whether [Code of Civil Procedure] section 340.1 provides a new accrual date for purposes of Government Code section 901's claims presentation rule." (Rubenstein v. DOE No. 1 (2017) 3 Cal.5th 903, 910 (Rubenstein).) Our high court concluded that Rubenstein's action was barred for failure to file a timely claim. (Id. at p. 911.) The court reversed our judgment and remanded the matter to us "for further proceedings consistent with this opinion." (Id. at p. 916.)
Undesignated statutory references are to the Code of Civil Procedure. --------
Rubenstein filed a supplemental brief under California Rules of Court, rule 8.200(b)(1). Appearing that the only issue before us was the correct disposition, we sent a letter requesting supplemental letter briefs addressing the Supreme Court's opinion, in particular whether anything remains for this court to decide or if we can simply affirm the judgment of dismissal. Defendant timely filed its supplemental brief, Rubenstein did not. Rubenstein later filed an unsolicited "response" to defendant's supplemental brief. We accepted the response and allowed defendant to respond to Rubenstein's submissions.
After considering the parties' submissions we conclude there is no further action required by us beyond affirming the judgment of dismissal. The question before the Supreme Court was whether Rubenstein timely filed her claim. (Rubenstein, supra, 3 Cal.5th at p. 905.) The court explained that a "claim must be presented 'not later than six months after the accrual of the cause of action.' (Gov. Code, § 911.2, subd. (a), italics added.) A cause of action for childhood sexual molestation generally accrues at the time of the alleged molestation. (Shirk [v. Vista Unified School Dist. (2007)] 42 Cal.4th [201,] 210 [(Shirk)].) Plaintiff could have sued at that time. We must decide whether the changes to section 340.1 caused her action to accrue later or to reaccrue at a later time." (Rubenstein, supra, 3 Cal.5th at p. 910, italics omitted.) The court concluded "that while section 340.1 extends the time during which an individual may commence a cause of action alleging childhood sexual abuse, it does not extend the time for accrual of that cause of action." (Rubenstein, at p. 911.) Accordingly, the court stated that Rubenstein's "action [was] barred for failure to file a timely claim." (Id. at p. 910.)
Rubenstein contends that the Supreme Court's opinion did not foreclose application of the common law delayed discovery rule to determine the date of accrual of a cause of action for childhood sexual abuse under her circumstances. We disagree. The court expressly addressed Rubenstein's argument that " 'the equitable doctrine of delayed discovery applies and warrants a finding that [her] claim was timely.' " (Rubenstein, supra, 3 Cal.5th at p. 915.) The court noted that it rejected a similar argument in Shirk, supra, 42 Cal.4th at page 214 and that its reasoning in Shirk "appl[ies] here." (Rubenstein, at p. 915.) The court also rejected Rubenstein's argument that her delayed adult awareness of her injury created its own cause of action with its own accrual date. (Id. at pp. 915-916.)
Finally, the court rejected the dissent argument that its ruling effectively gave "public entities immunity from liability for lawsuits like this one" (Rubenstein, supra, 3 Cal.5th at p. 916), noting that "[w]hen the Legislature amended section 340.1 without modifying the claims requirement, and later overruled Shirk, but only prospectively, it took measured actions that protected public entities from potential liability for stale claims regarding conduct allegedly occurring before January 1, 2009, in which the public entity had no ability to do any fiscal planning, or opportunity to investigate the matter and take remedial action." (Ibid.)
Thus, no further action is required by us beyond affirming the judgment of dismissal.
DISPOSITION
The judgment of dismissal is affirmed. The parties are to bear their own costs on appeal.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.