drnino said:
CALIFORNIA:
Hello,
I am asking this question on behalf of my girlfriend who was molested as a child by her (then) best friends father.
1. Can she take the individual to court after years have passed? (I don't see why she shouldn't be able to...her parents decided not to...and she couldn't take matters into her own hands at 7 years old!) If not, please explain?
2. What kind of court would she go to? I don't believe that small claims court will provide sufficient funds to cover Therapy sessions for past, present, and future.
3. Can he still go to jail for this?
Thanks for your help!
We appreciate it!
-NC-
My response:
Childhood sexual abuse: A statutory delayed discovery rule also applies to actions for "childhood sexual abuse": The action must be brought no later than three years after plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse (or within eight years of age of majority if later). [Ca Civ Pro § 340.1(a)]
"Childhood sexual abuse" (post-1990 suits): Plaintiffs suing for damages arising from "childhood sexual abuse" (as defined by Ca Civ Pro § 340.1(c), must commence suit within the later of (a) eight years after they reach the age of majority (age 18) or (b) three years after they discover or reasonably should have discovered that "psychological injury or illness occurring after the age of majority was caused by the sexual abuse." [Ca Civ Pro § 340.1(a) (emphasis added) (applicable to actions commenced on or after 1/1/91; see Lent v. Doe (1995) 40 Cal.App.4th 1177, 1186, 47 Cal.Rptr.2d 389, 394--31-year-old could bring suit within 3 years of discovering causal link between abuse and psychological injury; Sellery v. Cressey (1996) 48 Cal.App.4th 538, 547, 55 Cal.Rptr.2d 706, 712 (same, except P was 37 at time of suit); Tietge v. Western Province of the Servites, Inc. (1997) 55 Cal.App.4th 382, 387, 64 Cal.Rptr.2d 53, 56--§ 340.1 limitations period applies where abuse continued past age 18]
Limitation--no suits against "third parties" by plaintiffs 26 or older: The Ca Civ Pro § 340.1 extended statute of limitations applies to an action against a person who committed childhood sexual abuse, as well as an action against a third party whose negligent or intentional act was a legal cause of the abuse. [Ca Civ Pro § 340.1(a) (1)-(3) (amended Stats. 1998, Ch. 1032)]
However, § 340.1 may not be used to bring an action based upon a third party's negligent or intentional act after the plaintiff's 26th birthday. [Ca Civ Pro § 340.1(b) (subd. added Stats. 1998, Ch. 1032)]
(2) Specified abuse by "household or family member" (pre-1991 suits): Former Ca Civ Pro § 340.1 remains applicable to childhood sexual assault cases commenced before 1991 (Ca Civ Pro § 340.1(k)):
(a) General three-year statute: Former § 340.1 provided a three-year statute of limitations (subject to tolling during the child's minority) for injury or illness suits (including purely psychological injury actions) based on "lewd or lascivious" acts with a child under age 14, or "fornication, sodomy, oral copulation or penetration of genital or anal openings of another with a foreign object" occurring between a "household or family member" and a child under age 18. [Former Ca Civ Pro § 340.1; see Snyder v. Boy Scouts of America, Inc. (1988) 205 Cal.App.3d 1318, 1325, 253 Cal.Rptr. 156, 160--former § 340.1 inapplicable to suit against scout leader (and Boy Scouts) not victim's "household or family member"; and Colleen L. v. Howard M. (1989) 209 Cal.App.3d 542, 257 Cal.Rptr. 263--tolling during P's minority]
(3) Revival of claims lapsed under pre-1991 law: As stated above, Ca Civ Pro § 340.1(a) applies to actions commenced on or after 1/1/91, including any action otherwise barred by the statute of limitations in effect before that date. In effect, § 340.1(a) revives an action that lapsed under pre-1991 law. [Ca Civ Pro § 340.1(p),(q); see Lent v. Doe (1995) 40 Cal.App.4th 1177, 1183-1184, 47 Cal.Rptr.2d 389, 392-393--Legislature has power to retroactively revive lapsed civil claims; Tietge v. Western Province of the Servites, Inc. (1997) 55 Cal.App.4th 382, 386, 64 Cal.Rptr.2d 53, 56 (same)]
Action based on commission of a felony: Unless a longer period is otherwise prescribed for the suit, an action for damages based on defendant's commission of a felony for which defendant has been convicted must be commenced within one year after judgment is pronounced. [Ca Civ Pro § 340.3; Newman v. Newman (1987) 196 Cal.App.3d 255, 241 Cal.Rptr. 712--§ 340.3 inapplicable to P's action against D for gunshot wound, since D not convicted of felony charge (verdict was "not guilty by reason of insanity")]
(1) Tolling pending stay of judgment or sentence: If the sentence or judgment is stayed, the § 340.3 limitations period is tolled until the stay is lifted. But there is no stay for this purpose if the judgment is appealed or defendant is placed on probation. [Ca Civ Pro § 340.3]
(2) Subsequent reduction to misdemeanor of no effect: The § 340.3 period applies so long as a felony conviction is returned. It is immaterial that the conviction is subsequently reduced to a misdemeanor. [Jamieson v. Hickey (1988) 199 Cal.App.3d 595, 244 Cal.Rptr. 859]
(3) Not retroactive to time-barred causes of action: Section 340.3 took effect September 20, 1983. It does not apply retroactively to revive causes of action that were already time-barred under the applicable statute of limitations before that date (but it does apply to causes of action still viable on the 9/20/83 operative date even though accrual date was earlier). [Gallo v. Super.Ct. (Sherry) (1988) 200 Cal.App.3d 1375, 246 Cal.Rptr. 587]
See a personal injury attorney immediately.
Good luck to you.
IAAL
