as for delayed discovery vs. 340.1 , allow me to copy La_cienega's post from LSA
Well, we can see why he's claiming he didn't "understand" it was wrong:
Prior to the 1990 amendments to C.C.P. 340.1, California courts all but refused to apply the delayed discovery doctrine to in childhood sexual abuse cases. It was not until the 1990 decision in Evans v. Eckleman, supra, that a California appellate court, while not deciding whether the discovery rule applied to the facts of the case, left open the possibility that the plaintiffs could amend their complaint, to invoke the rule, by alleging "unawareness" that the abuse was wrongful, or repression of the abuse.29
California courts have routinely followed the DeRose decision where the court distinguished two types of case fact patterns in reference to the delayed discovery rule. Plaintiffs who alleged complete repression of the molestation would be entitled to delayed accrual of the statute, while those who did not allege repression of the abuse, but instead argued that other factors had caused their delay in filing suit were not entitled to the rule.
In DeRose, the court held that the allegations within plaintiff's complaint, including that the abuse was "against plaintiff's will and without her consent" and that she "felt great fear," precluded an application of the discovery rule. (Id. at p. 1017)
DeRose was allegedly molested by her step-grandfather over an eight-year period, beginning when she was four years old. She filed suit some thirteen years after the last incident of abuse. The court, reviewing Section 340.1(d), declined to apply the discovery rule, stating that the statutory language "…does not mandate application of the delayed discovery doctrine in any particular case." (Id. at p. 1020) The legislative intent, the court reasoned, was to "avoid the implication" that the longer statutory period was a "rejection" of the discovery doctrine. (Id. at p. 1020)
Sexual Abuse & Delayed Discovery - California Abuse Victim Attorneys
Cases involving this discovered trauma thing and how they tend to get dismissed:
Whatever the context, the delayed discovery doctrine applies only when a plaintiff has not discovered all of the facts essential to the cause of action. Conversely, if the plaintiff has discovered all of the essential facts, the doctrine does not apply. In this case, the allegations of the complaint leave no doubt that DeRose was actually aware long ago of the facts necessary to state a cause of action against Carswell based upon the sexual assaults. In her complaint, DeRose alleged affirmatively that the assaults "were all committed against plaintiff's will and without her consent" and that, "[a]t the times of said sexual molestation, plaintiff felt great fear and acceded to defendant's acts due to her perceptions of his greater size and strength and his ability and intent to carry out his threats of harm." The immediate harm caused by the alleged assaults gave DeRose a right to sue at that time. (Sonbergh v. MacQuarrie (1952) 112 Cal. App. 2d 771, 773-774 [247 P.2d 133].)
DeRose argues that her cause of action did not accrue until she experienced later emotional harm and recognized its connection with the earlier [196 Cal. App. 3d 1018] assaults. There are, indeed, times when awareness of a wrongful act does not carry with it awareness of harm. That is true, for example, when an incorrect pharmaceutical prescription cannot be appreciated as tortious until it has caused harm. (See, e.g., G. D. Searle & Co. v. Superior Court, supra, 49 Cal. App. 3d 22.) [3] An assault, however, which by definition is perceived as unconsented to and offensive, causes harm as a matter of law. (Sonbergh v. MacQuarrie, supra, 112 Cal. App. 2d at pp. 773-774.) [2b] For us to hold that no cause of action accrued until 13 years after the assault would suggest, incorrectly, that a victim of sexual assault cannot sue unless and until there are delayed consequences.
If DeRose could and did allege that she repressed her memories of the sexual assaults until one year before filing her complaint, she might be able to invoke the delayed discovery rule. fn. 1 [4] While the assaults that DeRose has alleged caused serious harm as a matter of law, DeRose could not logically be charged with awareness of the harm if she had not been aware of the assaults. In fact, there are allegations in the complaint that might be read to suggest that this was the case. DeRose, however, both in the superior court and on appeal, disclaimed that interpretation of the complaint. While we must construe the complaint to state a cause of action, if possible, there is no rule that compels us to interpret the complaint to allege particular facts which the pleader disavows.
In the relevant portions of her complaint, DeRose alleges that Carswell's acts caused her to develop "psychological mechanisms" and "psychological illnesses" which "prevented her from knowing, recognizing and understanding the nature or extent of her injuries ... and the causal relationship between her present injuries and defendant's past acts." Elsewhere in her complaint, DeRose alleges that she failed to discover "the fact of her injuries and their cause." At the hearing on the demurrer, the superior court specifically discussed with DeRose's counsel the interpretation and effect of the complaint's delayed discovery allegations. Counsel's remarks made it clear that DeRose does not interpret her own complaint to allege that she had repressed her memories of the sexual assaults. "[Counsel]: And the medical literature we cited in the brief I think attests to the fact that there are times, frankly, and it's in the literature, where they're fn. 2 not even aware of the initial [196 Cal. App. 3d 1019] wrongful act after years of therapy. [¶] I recall -- The Court: That's not an issue here. [Counsel]: Not as alleged. Not as alleged."
Counsel's response, "[n]ot as alleged," naturally raised the question whether DeRose could make such allegations if afforded leave to amend. The court also asked this question, and counsel's response demonstrated that DeRose would not be able to make the necessary allegations. "The Court: She was aware of the fact she was injured? [Counsel]: Correct. [¶] Well, she was aware she was molested. And she was aware of the wrongful act. [¶] It's a tort, and we are talking four elements here. We are talking wrongful -- The Court: She was aware of the wrongful act. She was aware of the incidents that took place. [Counsel]: True." Counsel went on to explain the very different theory underlying this action: "But the key thing is the other element of the tort, namely proximate causation, we are saying that it was not until the plaintiff began receiving psychological therapy that she began to make the connection and was able to make the connection between her present injuries and the earlier misconduct."
On appeal, DeRose's position has not changed. She does not suggest that she repressed the memories of the sexual assaults. [5] [2d] Instead, she argues that, "although appellant here was aware of the repeated sexual molestation that occurred, it is alleged that she was unaware of the later serious and ongoing injuries that have plagued her in her adult life until of [sic] one year of the filing of the complaint." fn. 3
As a matter of law, for the reasons discussed above, DeRose's allegations do not justify application of the delayed discovery doctrine. Because she has disclaimed the ability to make the allegations that might justify the doctrine's application, the court properly sustained the demurrer.
DeRose v. Carswell (1987) 196 Cal. App. 3d 1011 [242 Cal. Rptr. 368] :: Volume 196 :: Cal. App. 3d :: California Case Law :: US Case Law :: US Law :: Justia
In Snyder, supra, plaintiff's sexual abuser was a former Boy Scout leader who allegedly sexually assaulted plaintiff over a three-year period. Plaintiff's complaint was filed in 1985, a little more than four years after the last incident of abuse, and several months after plaintiff's 19th birthday. Plaintiff's delay in filing suit, he alleged, was due to "embarrassment, humiliation, fear and sorrow" over the abuse. (Id. at p. 1322)
In opposing defendant's motion for summary judgment based upon the one-year statute of limitations (Section 340[3]), plaintiff presented the declaration of a psychiatrist who opined that embarrassment, humiliation and fear were "byproducts of post-traumatic syndrome" which explained plaintiff's delay in divulging the abuse earlier. (Id. at p. 1322) In refusing to apply the discovery rule, the court emphasized that plaintiff had established in his own declaration that he had suffered "appreciable harm" before his eighteenth birthday. (Id. at p. 1324) The statute began running on Snyder's eighteenth birthday since all of the facts essential to plaintiff's cause of action were known by him at that time. (Id. at p. 1324)'
Basically, if you state you experience something traumatic then you will obviously be going through trauma as it's happening and later on. You don't just "discover" that later on.
This court case actually gives more validity to repressed memories in that way - which is funny because Harvey Levine said the same thing, that repressed memories made more sense.
But now it makes sense why he's claiming he didn't understand it was wrong until last year. It's his way of trying to circumvent the statutes.
The court stopped short, however, of a wholesale extension of the delayed discovery rule to cases involving adults who sue for injuries suffered as a result of childhood sexual abuse. In order to successfully argue that the discovery rule applies, the court stated:
"For plaintiffs to prevail they must be able to show they remained unaware of, and had no reason to suspect, the wrongfulness of the conduct until a time less than three years before the action was filed." (Id. at p. 1619) (Emphasis added)
Anyway, that's made all the more ridiculous with him having testified about it twice before.
Therefore, where the victim does not purport to have repressed the abuse itself, but instead alleges only to have recently discovered the extent of their psychological injuries from the abuse, tolling of the statute does not occur. (Evans, supra, at p. 1620)
Doesn't sound good for him, doesn't sound like it would make it to a hearing.
He needs to go back to the repressed angle.
Reading this makes it all the more obvious how this is orchestrated. He made sure to say he didn't understand it until 1 year ago, which is what he needs to legally claim. He's trying to make this case work.
