Doe v. City of Los Angeles 2/24/06 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B178689

Case Date: 06/21/2006

Preview:Filed 2/24/06; pub. order 3/7/06 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

JOHN DOE, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

B178689 (Los Angeles County Super. Ct. No. BC293484)

JOHN DOE 2, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

(Los Angeles County Super. Ct. No. BC308146)

APPEALS from orders of the Superior Court of Los Angeles County, Robert L. Hess, Judge. Affirmed. Taylor & Ring, David M. Ring, John C. Taylor; Bennett, Johnson & Galler, Todd A. Walburg, and William C. Johnson for Plaintiffs and Appellants John Doe and John Doe 2.

Rockard J. Delgadillo, City Attorney, Janet G. Bogigian, Assistant City Attorney, and Amy Jo Field, Deputy City Attorney, for Defendant and Respondent City of Los Angeles. Sedgwick, Detert, Moran & Arnold, Gregory H. Halliday, and Thomas A. Delaney for Defendant and Respondent Boy Scouts of America. ________________

Appellants John Doe and John Doe 2 brought actions against respondents City of Los Angeles (City) and Boy Scouts of America (BSA), alleging that a Los Angeles Police Department (LAPD) officer sexually abused them in the 1970's while they participated in LAPD Explorer and Scout programs, and the trial court sustained demurrers to their complaints without leave to amend. We affirm.

RELEVANT PROCEDURAL HISTORY

A. John Doe John Doe initiated his action on April 7, 2003. On May 17, 2004, he filed his fourth amended complaint, which asserts claims for sexual abuse, negligence, sexual battery, assault and battery, and tortious infliction of emotional distress against David J. Kalish, and claims for negligent supervision, training, management, and failure to warn against respondents. The fourth amended complaint alleges that in the 1970's, Kalish--who was then an LAPD officer--was an advisor in the LAPD's Scout and Explorer programs, which the LAPD operated in association with the BSA, and an advisor in the LAPD's Deputy Auxiliary Police (DAP) program. The complaint further alleges that John Doe joined the

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DAP program in 1974, when he was 13 years old; he participated in the Scout and Explorer programs from 1975 until 1979, when he was 17 years old; and Kalish sexually abused him from 1974 to 1979. Respondents demurred to the fourth amended complaint, contending, inter alia, that its claims were time-barred under Code of Civil Procedure section 340.1. The trial court sustained respondents' demurrers without leave to amend on July 26, 2004. John Doe subsequently noticed an appeal.1

B. John Doe 2 John Doe 2 began his action on December 23, 2003. On July 22, 2004, he filed his first amended complaint, which asserts claims against Kalish and respondents that closely resemble the claims in John Doe's fourth amended complaint. John Doe 2 alleges that he joined the DAP program as a 13 year old in 1975; he participated in the Scout and Explorer programs as a minor from 1977 until 1979; and Kalish sexually abused him from "approximately" 1974 to 1979.2 Respondents demurred to the first amended complaint on a number of grounds, including that it was time-barred under Code of Civil Procedure section 340.1. The trial court sustained these demurrers on November 9, 2004, and judgment was entered

The record discloses that John Doe's notice of appeal was filed prematurely, insofar as it purports to challenge the judgment in favor of the City. Whereas judgment in favor of the BSA was entered on August 23, 2004, judgment in favor of the City was not entered until November 16, 2004, after the notice of appeal was filed on October 6, 2004. In the interest of the orderly administration of justice, we deem the appeal involving the City to be taken from the later-entered judgment. (In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1341, fn. 1.) 2 The complaint does not clarify how Kalish came to sexually abuse John Doe 2 before he joined the DAP program.

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accordingly in favor of respondents. John Doe 2 appealed from these judgments, and his appeal was subsequently consolidated with John Doe's appeal.

DISCUSSION Appellants contend that the trial court erred in sustaining the demurrers to their respective complaints without leave to amend. We disagree.

A. Standard of Review "Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court's discretion, an appellate court employs two separate standards of review on appeal. [Citation.] . . . Appellate courts first review the complaint de novo to determine whether or not the . . . complaint alleges facts sufficient to state a cause of action under any legal theory, [citation], or in other words, to determine whether or not the trial court erroneously sustained the demurrer as a matter of law. [Citation.]" (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879, fn. omitted.) "Second, if a trial court sustains a demurrer without leave to amend, appellate courts determine whether or not the plaintiff could amend the complaint to state a cause of action. [Citation.]" (Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 879, fn. 9.) Under the first standard of review, "we examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory. [Citation.] We treat the demurrer as admitting all material facts which were properly pleaded. [Citation.] However, we will not assume the truth of contentions, deductions, or conclusions of fact or law [citation], and we may disregard any allegations that are contrary to the law or to a fact of which judicial

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notice may be taken. [Citation.]" (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 947.) Under the second standard of review, the burden falls upon the plaintiff to show what facts he or she could plead to cure the existing defects in the complaint. (Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 890.) "To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action." (Ibid.)

B. Timeliness of Claims In the present case, the trial court concluded that appellants' claims are timebarred under Code of Civil Procedure section 340.1 (section 340.1). As we explain below, the trial court did not err on this matter.

1. Section 340.1 The overarching issue is whether appellants adequately pled that their actions fall within subdivision (b)(2) of section 340.1, which permits the revival of certain claims of sexual abuse that would otherwise be barred by the limitations period in section 340.1. We therefore examine the pertinent provisions of section 340.1. Subdivision (a) of section 340.1 provides in pertinent part: "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

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later, for any of the following actions: [

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