By Roberta Ward
Valley Catholic, vol. 21, no. 1 (San Jose diocesan newspaper)
November 19, 2002

http://www.dsj.org/vc/2002/nov02/SB1779.htm

A new law which breezed through the California legislature in May and June of this year and was signed by Gov. Gray Davis July 10, poses potential threat to the 12 California Catholic dioceses.

Introduced as a victims’ rights bill, SB 1779 provides a one-year window of opportunity for alleged victims of child sexual abuse to file court claims against their alleged perpetrator’s employer.

Beginning Jan. 1, 2003 and effective for the calendar year 2003, there will be no statute of limitations for filing claims.

The law applies to any organization or employer, but the Catholic dioceses in the state are on notice that they could be the objects of claims, in some cases, alleging incidents which may have occurred many decades ago and in which alleged perpetrators may long be dead.

The new law does not allow for claims against perpetrators and will provide no opportunity to remove any child molesters from harming children.

Diocesan administrators are also concerned that the potential damages may be costly.

Under existing law, no vicarious claim (claim asserted against an employer) for childhood sexual abuse may be commenced on or after the plaintiff’s 26th birthday.

Also, as to the alleged perpetrator, the time for commencing an action based on injuries resulting from childhood sexual abuse is eight years after the plaintiff reaches majority (age 26 years) 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 abuse, whichever occurs later.

Sponsored by Senate President Pro Tem John Burton, SB 1779 provides an extended statute of limitations for lawsuits by victims of childhood sexual abuse against employers or other responsible third parties who “knew, had reason to know, or was otherwise on notice of any unlawful sexual conduct by an employee, volunteer, representative or agent.”

The legislation prospectively provides that the absolute 26 years of age limitation does not apply and the broader “within three years of discovery” statute of limitations does apply.

The new law also allows claims against employers who “failed to take reasonable steps and implement reasonable safeguards to avoid future acts of unlawful sexual conduct by the employee or agent, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment.”

In addition, the law now specifies that providing or requiring counseling is not sufficient to constitute a “reasonable step” or “reasonable safeguard.”

SB 1779 was introduced in the Senate Judiciary Committee on May 2, 2002 and was approved on May 9. It moved swiftly through the Senate and the Assembly achieving final passage on June 27, without a no vote and with only a handful of abstentions.

The new law, in fact, revives certain time-barred claims for childhood sexual abuse against employers. These can be:

previously unasserted claims;

adjudicated cases that were dismissed or otherwise adjudicated on the basis of the statute of limitations;

settled cases where the claimant was not represented by an attorney admitted to practice in California at the time the settlement agreement was executed.

The two latter points leave the new legislation open to constitutional scrutiny because they may offend the separation of powers doctrine and violate the contracts clause of the state and federal constitutions.

Some dioceses view the challenges of the new legislation as potentially devastating if numerous old, previously unasserted claims are brought forward, with contingent punitive damages.