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California Civil Code
Section 340.1
340.1. (a) In an 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 period
expires later, 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. (b) No action described
in paragraph (2) or (3) of subdivision (a) may be
commenced on or after the plaintiff's 26th birthday.
(c) "Childhood
sexual abuse" as used in this section includes
any act committed against the plaintiff that occurred
when the plaintiff was under the age of 18 years
and that would have been proscribed by Section 266j
of the Penal Code; Section 285 of the Penal Code;
paragraph (1) or (2) of subdivision (b), or of subdivision
(c), of Section 286 of the Penal Code; subdivision
(a) or (b) of Section 288 of the Penal Code; paragraph
(1) or (2) of subdivision (b), or of subdivision
(c), of Section 288a of the Penal Code; subdivision
(h), (i), or (j) of Section 289 of the Penal Code;
Section 647.6 of the Penal Code; or any prior laws
of this state of similar effect at the time the
act was committed. Nothing in this subdivision limits
the availability of causes of action permitted under
subdivision (a), including causes of action against
persons or entities other than the alleged perpetrator
of the abuse.
(d) Nothing in this
section shall be construed to alter the otherwise
applicable burden of proof, as defined in Section
115 of the Evidence Code, that a plaintiff has in
a civil action subject to this section.
(e) Every plaintiff
26 years of age or older at the time the action
is filed shall file certificates of merit as specified
in subdivision (f).
(f) Certificates of
merit shall be executed by the attorney for the
plaintiff and by a licensed mental health practitioner
selected by the plaintiff declaring, respectively,
as follows, setting forth the facts which support
the declaration:
(1) That the attorney
has reviewed the facts of the case, that the attorney
has consulted with at least one mental health practitioner
who is licensed to practice and practices in this
state and who the attorney reasonably believes is
knowledgeable of the relevant facts and issues involved
in the particular action, and that the attorney
has concluded on the basis of that review and consultation
that there is reasonable and meritorious cause for
the filing of the action. The person consulted may
not be a party to the litigation.
(2) That the mental
health practitioner consulted is licensed to practice
and practices in this state and is not a party to
the action, that the practitioner is not treating
and has not treated the plaintiff, and that the
practitioner has interviewed the plaintiff and is
knowledgeable of the relevant facts and issues involved
in the particular action, and has concluded, on
the basis of his or her knowledge of the facts and
issues, that in his or her professional opinion
there is a reasonable basis to believe that the
plaintiff had been subject to childhood sexual abuse.
(3) That the attorney
was unable to obtain the consultation required by
paragraph (1) because a statute of limitations would
impair the action and that the certificates required
by paragraphs (1) and (2) could not be obtained
before the impairment of the action. If a certificate
is executed pursuant to this paragraph, the certificates
required by paragraphs (1) and (2) shall be filed
within 60 days after filing the complaint.
(g) Where certificates
are required pursuant to subdivision (e), the attorney
for the plaintiff shall execute a separate certificate
of merit for each defendant named in the complaint.
(h) In any action subject
to subdivision (e), no defendant may be served,
nor shall the duty to serve a defendant with process
attach, until the court has reviewed the certificates
of merit filed pursuant to subdivision (f) with
respect to that defendant, and has found, in camera,
based solely on those certificates of merit, that
there is reasonable and meritorious cause for the
filing of the action against that defendant. At
that time, the duty to serve that defendant with
process shall attach.
(i) A violation of
this section may constitute unprofessional conduct
and may be the grounds for discipline against the
attorney.
(j) The failure to
file certificates in accordance with this section
shall be grounds for a demurrer pursuant to Section
430.10 or a motion to strike pursuant to Section
435.
(k) In any action subject
to subdivision (e), no defendant may be named except
by "Doe" designation in any pleadings
or papers filed in the action until there has been
a showing of corroborative fact as to the charging
allegations against that defendant.
(l) At any time after
the action is filed, plaintiff may apply to the
court for permission to amend the complaint to substitute
the name of the defendant or defendants for the
fictitious designation, as follows:
(1) The application
shall be accompanied by a certificate of corroborative
fact executed by the attorney for the plaintiff.
The certificate shall declare that the attorney
has discovered one or more facts corroborative of
one or more of the charging allegations against
a defendant or defendants, and shall set forth in
clear and concise terms the nature and substance
of the corroborative fact. If the corroborative
fact is evidenced by the statement of a witness
or the contents of a document, the certificate shall
declare that the attorney has personal knowledge
of the witness's statement or of the contents of
the document, and the identity and location of the
witness or document shall be included in the certificate.
For purposes of this section, a fact is corroborative
of an allegation if it confirms or supports the
allegation. The opinion of any mental health practitioner
concerning the plaintiff shall not constitute a
corroborative fact for purposes of this section.
(2) Where the application
to name a defendant is made prior to that defendant's
appearance in the action, neither the application
nor the certificate of corroborative fact by the
attorney shall be served on the defendant or defendants,
nor on any other party or their counsel of record.
(3) Where the application
to name a defendant is made after that defendant's
appearance in the action, the application shall
be served on all parties and proof of service thereof
provided to the court, but the certificate of corroborative
fact by the attorney shall not be served on any
party or their counsel of record.
(m) The court shall
review the application and the certificate of corroborative
fact in camera and, based solely on the certificate
and any reasonable inferences to be drawn therefrom,
shall, if one or more facts corroborative of one
or more of the charging allegations against a defendant
has been shown, order that the complaint may be
amended to substitute the name of the defendant
or defendants.
(n) The court shall
keep under seal and confidential from the public
and all parties to the litigation other than the
plaintiff any and all certificates of corroborative
fact filed pursuant to subdivision (l).
(o) Upon the favorable
conclusion of the litigation with respect to any
defendant for whom a certificate of merit was filed
or for whom a certificate of merit should have been
filed pursuant to this section, the court may, upon
the motion of a party or upon the court' s own motion,
verify compliance with this section by requiring
the attorney for the plaintiff who was required
by subdivision (f) to execute the certificate to
reveal the name, address, and telephone number of
the person or persons consulted with pursuant to
subdivision (f) that were relied upon by the attorney
in preparation of the certificate of merit. The
name, address, and telephone number shall be disclosed
to the trial judge in camera and in the absence
of the moving party. If the court finds there has
been a failure to comply with this section, the
court may order a party, a party's attorney, or
both, to pay any reasonable expenses, including
attorney' s fees, incurred by the defendant for
whom a certificate of merit should have been filed.
(p) The 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, 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.
(q) The Legislature
declares that it is the intent of the Legislature,
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.
(r) Nothing in the
amendments to this section enacted at the 1998 portion
of the 1997-98 Regular Session is intended to create
a new theory of liability.
(s) The amendments
to subdivision (a) of this section, enacted at the
1998 portion of the 1997-98 Regular Session, shall
apply to any action commenced on or after January
1, 1999, and to any action filed prior to January
1, 1999, and still pending on that date, including
any action or causes of action which would have
been barred by the laws in effect prior to January
1, 1999. Nothing in this subdivision is intended
to revive actions or causes of action as to which
there has been a final adjudication prior to January
1, 1999.
Did
You Know?
- 90%
of the rapes and sex crimes
of children less than 12 years
old knew the offender, accodring
to police-recorded incident
data.
- Convicted
rape and sexual assult offenders
report that 2/3rd of their victims
were under the age of 18.
- State
felony court convictions, the
FBI's UCR arrests and National
Crime Victimization Surveys
all point to sex offenders being
older than other violent offenders,
generally in the early 30's.
California
Attorney - Cities We Serve:
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