Keenan Briefings

Briefing

AB 218 Expanded Statute of Limitations | Keenan

On October 13, 2019, Governor Gavin Newsom signed into law AB 218 (Chapter 861, Statutes of 2019), a law that will expand the statute of limitations for civil suits arising out of childhood sexual assault, impose additional damages in certain cases, and revive previously time-barred claims for a period of three years.

Prior Law

Currently, the law provides as follows:

• In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action is within eight years of the date the plaintiff attains the age of majority (to age 26) 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.
• Claims made pursuant to § 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse are exempt from the Government Tort Claims Act. This provision only applies to claims arising out of conduct occurring on or after January 1, 2009, unless the agency has adopted a local claims presentation ordinance or regulation as outlined under Government Code § 935 which allows local agencies to enact their own tort claim requirements for dates of occurrence up to January 1, 2019.
• Local claims presentation regulations under Government Code § 935 have been challenged in court, and the validity of such a regulation is under review in Big Oak Flat-Groveland Unified School District v. Jane Doe (2018) 21 Cal.App. 5th 403. The outcome of that case will be determined by the 5th Circuit Appellate Court, but it is anticipated that whatever the decision, the case will be appealed back to the California Supreme Court for final resolution.

Changes to the Law Under AB 218

AB 218 makes the following changes, effective January 1, 2020:

• Expands the definition of childhood sexual abuse to include “sexual conduct” as defined by Penal Code § 311.4 and recasts the offence as childhood sexual assault.
• Provides that a plaintiff will have 22 years after attaining the age of majority (to age 40) or five years from the discovery of the causal relationship between the assault and psychological injury/illness to file suit against a party that knew or had reason to know, or was otherwise on notice of misconduct that created a risk of childhood sexual assault by an employee (or volunteer, representative or agent) or failed to take reasonable steps or implement reasonable safeguards to avoid acts of childhood sexual assault.
• Provides that the plaintiff that proves that their childhood sexual assault happened as a result of a “cover up” (a concerted effort to hide evidence relating to childhood sexual assault) may recover up to three times the amount of damages.
• Revives for a period of three years any claim for damages arising out of childhood sexual assault that has not been litigated to finality and that would otherwise be barred as of January 1, 2020 because of the applicable statute of limitations, claim presentation deadline, or any other time limit. Plaintiffs will have from January 1, 2020 to December 31, 2022 to file suit in those cases.
• Exempts claims for childhood sexual assault from the notice provisions of the Government Tort Claims Act regardless of when the conduct took place. This change applies both retroactively and prospectively.

Government Tort Claims Act

As noted above, the applicability of locally-enacted claims presentation requirements to childhood sexual abuse cases remains an unresolved issue. AB 218 does not specifically address Government Code § 935, but it does greatly extend the statute of limitations for claims of childhood sexual abuse and opens a three-year window in which any claim from any time that was previously time-barred can be brought. This will include claims subject to Government Code § 935 Administrative Regulations (excluding cases that have already been litigated to finality).

There are several potential outcomes, depending on the final resolution of Big Oak Flat-Groveland Unified School District v. Jane Doe (2018) 21 Cal.App. 5th 403, including:

• If the courts ultimately find in favor of the school district, then local claims presentation requirements under § 935 could remain applicable to sexual abuse claims for all claims arising from abuse allegedly occurring between January 1, 2009 and January 1, 2019. In this case, the applicability of local claims presentation requirements would not go into effect until January 1, 2023, when the three-year claims window opened by AB 218 expires.
• A decision in favor of the plaintiffs in this case could mean that local claim requirements under § 935 will be deemed to never have applied to childhood sexual abuse claims.

Recommendations for Public Agencies, Health Care Providers and Others

Regardless of the statute of limitations, institutions that serve children are well-advised to look at their policies and procedures regarding employee and volunteer background checks, training, and mandated reporting. As parents, health care providers, educators and members of our communities, it is incumbent on all of us to take steps to prevent children from being victimized.

Keenan offers a wide array of resources from mandated reporter training, compliant with AB 1432, to a series of 23 “microlearning” courses designed to provide 3 to 4 minute trainings on a variety of topics including how to identify the signs of grooming to what appropriate boundaries are and are not. The series includes electronic and social media boundaries as well as training on student to student boundaries.

Keenan also offers campus and classroom site inspections which can aid in the identification of areas that may be vulnerable. Recommendations and best practices can be provided to help make campuses and children safer.

For agencies that do not participate in a Keenan managed program, visit the School Safety Center on our website (https://maintenance.assuredpartners.com/keenan/Knowledge-Center/School-Safety-Center) where we are proud to offer prevention, reporting and training resources at no cost.

In light of the claims revival period, it is wise to review your liability coverage, both past and present, and assemble your coverage documents going back in time as far as you can. Public agencies that have not done so already should consider adopting an Administrative Regulation under Government Code § 935.

For more information about this Briefing, or the resources that are available, please contact your Keenan representative.

AP Keenan is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.