New California Law Offers One Time “Lookback” for Minors Who Were the Victims of Rape, Incest, Sexual Assault or Abuse
Until January 2020, minors who were victims of sexual assault in California had a very limited window in which to file lawsuits against their abusers. Under the old law, victims had until they turned 26 or if already an adult, within 3 years of discovering the abuse. Now in 2020, child sexual abuse victims have until age 40 or within 5 years of discovering the abuse.
Childhood sexual assault advocates realized that there would be a gap caused by the change in the law. The California Legislature recognized that concern and gave survivors a three-year “look-back window” starting in January 2020 in which sexual abuse claims can be brought even though they may have already passed the statute of limitations under the old law.
Another provision of the new law allows courts to triple the damage award if there was a cover up.
Here is the law effective January 2, 2020 (together with our comments):
California Code of Civil Procedure Section 340.1
(a) In an action for recovery of damages suffered as a result of childhood sexual assault, the time for commencement of the action shall be within 22 years of the date the plaintiff attains the age of majority or within five 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 assault, whichever period expires later, for any of the following actions:
(1) An action against any person for committing an act of childhood sexual assault.
(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.
(3) An action for liability against any person or entity if an intentional act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff.
[Comments: The new law gives childhood sexual assault victims until age 40 or five years of the date the victim discovers he or she was the victim of an assault, whichever is later. The latter provision is for victims with repressed memories, something fairly common when the victims are minors. Note that adults who are victims of sexual assault still only have 2 years to bring a claim.]
(b) (1) In an action described in subdivision (a), a person who is sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.
(2) For purposes of this subdivision, a “cover up” is a concerted effort to hide evidence relating to childhood sexual assault.
[Comment: California’s law is unique in that anyone who sexually assaults a minor and subsequently acts to cover up the assault may be liable for triple damages.]
(c) An action described in paragraph (2) or (3) of subdivision (a) shall not be commenced on or after the plaintiff’s 40th birthday unless the person or entity knew or had reason to know, or was otherwise on notice, of any misconduct that creates a risk of childhood sexual assault by an employee, volunteer, representative, or agent, or the person or entity failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard. Nothing in this subdivision shall be construed to constitute a substantive change in negligence law.
[Comment: Section (c) of the law limits the liability of third parties in repressed memory cases where the victim is over the age of 40 when bringing the action for childhood sexual assault. Because of the repressed memory provisions of the statute, theoretically a victim could bring a lawsuit at any age. They can against the actual perpetrator of the assault but third party actions are more limited. An example of a possible third party could be the employer of the offender.]
(d) “Childhood sexual assault” 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 287 or of former Section 288a of the Penal Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code; any sexual conduct as defined in paragraph (1) of subdivision (d) of Section 311.4 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. This subdivision does not limit 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.
[Comment: Defines “childhood sexual assault”]
(e) This section shall not 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.
(f) Every plaintiff 40 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (g).
[Comment: Once again, there are additional restrictions for adults over the age of 40 who wish to bring an action for something that happened when they were under the age of 18.]
(g) 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, consulted with at least one mental health practitioner who the attorney reasonably believes is knowledgeable of the relevant facts and issues involved in the particular action, and concluded on the basis of that review and consultation that there is reasonable and meritorious cause for the filing of the action.
(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 the practitioner’s knowledge of the facts and issues, that in the practitioner’s 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.
(h) If certificates are required pursuant to subdivision (f), the attorney for the plaintiff shall execute a separate certificate of merit for each defendant named in the complaint.
(i) In any action subject to subdivision (f), a defendant shall not be served, and the duty to serve a defendant with process does not attach, until the court has reviewed the certificates of merit filed pursuant to subdivision (g) 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.
(j) A violation of this section may constitute unprofessional conduct and may be the grounds for discipline against the attorney.
(k) 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.
(l) In any action subject to subdivision (f), a defendant shall be named 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.
(m) At any time after the action is filed, the 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 statement of the witness 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) If the application to name a defendant is made before 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) If 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 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.
(n) 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 from the certificate, 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.
[Comment: When adults over the age of 40 wish to bring an action for something that happened when they were a child, the court must review the case before it can proceed.]
(o) 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 (m).
(p) 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 (g) to execute the certificate to reveal the name, address, and telephone number of the person or persons consulted with pursuant to subdivision (g) 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.
(q) 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. A plaintiff shall have the later of the three-year time period under this subdivision or the time period under subdivision (a) as amended by the act that added this subdivision.
[Comment: This is the special window that allows victims with claims that were time barred under the old law to have a one-time three year window to bring their claims.]
(r) The changes made to the time period under subdivision (a) as amended by the act that amended this subdivision in 2019 apply to and revive any action commenced on or after the date of enactment of that act, and to any action filed before the date of enactment, and still pending on that date, including any action or causes of action that would have been barred by the laws in effect before the date of enactment.
Are You the Victim of a Childhood Sexual Assault in California?
California now has one of the most aggressive and generous laws in the country for victims of childhood sexual assault. Victims have at least until age 40 to file a lawsuit and maybe longer in the case of repressed memories. If the offender attempted to conceal the assault, the victim may be entitled to triple damages.
The police and prosecutors can put the offender in jail but that doesn’t compensate the victim for the emotional pain and trauma suffered. (Suing the offender usually doesn’t do much either as most don’t have deep pockets or are in prison as a result of the conduct.)
Often we can hold the offender’s employer or owner of the property responsible for the actions of the offender. Examples include an action against the owner of an apartment complex where stranger assault occurs or an action against a schoolboard for failing to properly screen and supervise a basketball coach. Often only the school district or the apartment owner has deep pockets or insurance.
If you or a loved one were sexually assaulted in California by a teacher, janitor, bus driver, coach or principal, contact us immediately. (Were you the victim of a sexual assault in another state? Visit our How Long Do I Have to Sue for Sexual Assault information page.)
There are special rules when the person or organization you are suing is a government employee.
To get the maximum compensation for your injuries, you need lawyers who are both aggressive and experienced. Brian Mahany and his handpicked team have a long history of pursuing sex offenders. Brian is a former police officer, prosecutor, and board member of the Family Violence Project. He is also a former volunteer with the Sexual Assault Crisis and Assault Center.
If you are the victim of sexual abuse of a minor, sexual assault, rape, incest or sexual molestation, call us. Brian and his network can be reached online, by email [hidden email] or by phone at 877.858.8018. All inquiries are kept strictly confidential.