Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCV-239056
Lambden, J.
In July 2006, Patrick Dengler filed a complaint against Doe 1, Doe 2, Doe 3, and Does 4 through 100, inclusive (collectively, Does), for sexual abuse that allegedly occurred when he was a minor. Dengler, who was born in October 1969, asserted that he did not recall the sexual abuse until August 2005. The lower court sustained the demurrer by Doe 1 and Doe 2 against Dengler without leave to amend, finding the lawsuit was time-barred. The court rejected Dengler’s claim of delayed discovery and found that he could not amend the complaint to state a cause of action because his allegation of repressed memory contradicted other allegations in his pleading. Dengler appeals from the judgment dismissing his lawsuit. We conclude that the allegations are not necessarily inconsistent and therefore reverse the judgment.
BACKGROUND
On July 28, 2006, Dengler filed a complaint against Does relating to and arising from alleged childhood sexual abuse based on theories of direct negligence, vicarious liability, and intentional misconduct. Doe 1 (Doe 1 or the diocese) is a religious denomination organized and existing under California Corporations Code section 10000 et seq. in the City of Santa Rosa (Santa Rosa), Doe 2 (Doe 2 or the church) is a Roman Catholic Church, parish, and school in Santa Rosa, and Doe 3 (the perpetrator) is an ordained priest in the church and assigned to the diocese.
The actual causes of action set forth in the complaint are the following: childhood sexual abuse; negligence; negligent supervision/failure to warn; negligent hiring/retention; fraud; fiduciary/confidential relationship; fraud, conspiracy to commit fraud; violation of Penal Code section 273A, subdivisions (a) and (b); negligence per se for statutory violations; sexual battery under Civil Code section 1708.5; and intentional infliction of emotional distress.
The underlying facts as alleged in Dengler’s pleading are set forth below. Dengler was born on October 21, 1969. He was a minor residing in Santa Rosa during the time that the alleged sexual abuse occurred. The perpetrator was ordained as a Roman Catholic priest in 1967 and, after various assignments, he assumed the position of Director of Religious Education and Youth Ministry for the diocese in 1970. He maintained this position until 1981.
In 1995, the perpetrator was arrested on child molestation charges and was convicted of sexual molestation in 1996. Dengler’s complaint describes various incidents, which indicated that the diocese and church leaders were aware that the perpetrator was sexually molesting various boys.
As a minor, Dengler attended the church; his family and he were enrolled in the church’s parish and school. Dengler was also an altar boy at the church. The perpetrator sexually groomed, abused, and molested Dengler from 1978 or 1979 until approximately 1981. He asserts that the “[p]erpetrator engaged in unpermitted, harmful and offensive sexual conduct and contact upon” him in violation of Code of Civil Procedure section 340.1. The perpetrator’s “acts of sexual abuse included, but were not limited to, numerous acts of forcible penile anal penetration and other depraved and illegal sexual acts.”
At one point in the complaint, Dengler claims the abuse started in 1979, but at another place in the pleading he asserts the perpetrator began abusing him in 1978.
Dengler claimed that in August 2005 he first began to have memories of the childhood sexual abuse committed by the perpetrator. He further alleged: “Prior to that time, beginning from the date of the perpetrator’s wrongful acts herein alleged, through [Dengler’s] majority and until on or about August 2005, [Dengler] was completely unaware of and suppressed/repressed all knowledge or awareness of the sexual abuse by the perpetrator. As a result of [Dengler’s] immediate and complete suppression of the acts of childhood sexual abuse by the perpetrator, [Dengler] was reasonably and blamelessly prevented from knowing, discovering or becoming aware of the acts of sexual abuse by the perpetrator or of learning of the other defendants’ involvement in the fraudulent concealment and cover up of the perpetrator’s illegal conduct, resulting in the delayed discovery and ‘postponed accrual’ of [Dengler’s] causes of action herein. Further, and prior to August 2005, [Dengler] was reasonably and blamelessly prevented from knowing, discovering or becoming aware that his psychological injury or illness, occurring after his majority, was caused by or connected with the childhood sexual abuse by the perpetrator.”
With regard to the injury he suffered, Dengler asserted that the perpetrator’s actions “shattered that natural human trust inherent in a child’s relationship with a priest, an alter Christi, thereby contributing to continued and deep-seated psychological injuries to [Dengler], necessitating the need for past, present and future psychological care and treatment, resulting in loss of earnings and future earning capacity . . . .” As a result, Dengler stated that he has been “damaged in his psychological and physical health, including but not limited to, feelings of shame, embarrassment, humiliation, guilt, self-blame, anxiety, sexual duress, self mutilation, religious duress and other long-term psychological sequelae . . . .”
In his cause of action to recover for injuries he suffered as a child for violating Penal Code section 273A, subdivisions (a) and (b), Dengler alleged that Does caused him “to suffer, or inflicted thereon unjustifiable physical pain or mental suffering, or having the care or custody of [Dengler], willfully caused or permitted the person or health of [Dengler] to be injured, or willfully caused or permitted [Dengler] to be placed in a situation where [Dengler’s] person or health was endangered . . . .” He further alleged, Does “willfully caused or permitted [Dengler] to suffer, or inflicted thereon unjustifiable physical pain or mental suffering, or having the care or custody of [Dengler], willfully caused or permitted the person or health of [Dengler] to be injured, or willfully caused or permitted [Dengler] to be placed in a situation where [Dengler’s] person or health was endangered . . . .”
On November 9, 2006, the diocese and church demurred to Dengler’s complaint on the basis that his claims were time-barred under the applicable statute of limitations existing in 1988 and because Dengler failed to file his complaint within the one-year revival window under Code of Civil Procedure section 340.1, subdivision (c). They also argued that Dengler’s allegations of repressed memory were contradicted by other allegations in the complaint and were insufficient to support the delayed discovery doctrine. Denlger responded to the demurrer by asserting that the delayed discovery rule applied to his claims and the statute of limitations did not run during the period he had repressed any memory of the molestation.
All further unspecified code sections refer to the Code of Civil Procedure.
The lower court’s minute order of December 19, 2006, indicates that no party appeared at the hearing. The court adopted its tentative ruling, which was as follows: “Demurrers of Doe 1 and Doe 2 based on expiration of the statutory limitations period [former section 340, subdivision (3)] are sustained without leave to amend. Claims against Doe 1 and Doe 2 expired in 1988. Plaintiff did not file this complaint within the one-year revival period of . . . section 340.1[, subdivision] (c). The other demurrers are moot.” In its final order, the court ruled that Dengler’s pleading was untimely and that it could not be amended to assert a cause of action because allegations in his complaint contradicted his assertion of repressed memory.
The order sustaining the demurrer states that the court considered “oral argument at the hearing,” although a line was drawn through the lines indicating that counsel was present.
The court entered judgment dismissing Dengler’s complaint against the diocese and church. Dengler filed a timely notice of appeal from the judgment.
DISCUSSION
I. Standard of Review
The standard of review governing an appeal from the judgment after the trial court sustains a demurrer without leave to amend is well established. “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The judgment will be affirmed if it is proper on any of the grounds raised in the demurrer, even if the court did not rely on those grounds. (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989.)
II. Deadlines for Bringing Lawsuits for Childhood Sexual Abuse Cases
In the present case, Dengler asserts claims against third parties based on the sexual abuse he suffered from 1978 or 1979 until 1981. Generally, a cause of action for childhood sexual molestation accrues at the time of molestation. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 443; Doe v. Bakersfield City School Dist. (2006) 136 Cal.App.4th 556, 567, fn. 2.) Prior to the enactment of section 340.1 in 1986, courts applied the one-year statute of limitations under section 340. Courts also applied section 352, which tolled the running of the statute while the plaintiff was a minor, to claims by adults of childhood sexual abuse. (See, e.g., DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1015 (DeRose).)
California courts held that the statute of limitations could be tolled beyond the plaintiff’s 19th birthday (which, under the interplay of sections 340 and 352, was the last day a complaint could ordinarily be filed), but adult plaintiffs had to show they had no memory of the facts essential to their claim. (DeRose, supra, 196 Cal.App.3d at p. 1018.) The DeRose court explained that tolling occurred, as a practical matter, only in cases of completely repressed memory where the plaintiff did not remember any of the abuse until years afterwards. (Ibid.) Additionally, the DeRose court suggested that delayed discovery did not apply to a plaintiff who had simply not “recognized [the] connection” between the abuse and later emotional harm if the plaintiff otherwise recalled the abuse. (Id. at pp. 1017-1018.)
The Legislature enacted section 340.1 in 1986, and extended to three years the statute of limitations for sexual abuse by a relative or household member of a child under the age of 14 years. (Former § 340.1, added by Stats. 1986, ch. 914, § 1, pp. 3165-3166; Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, 214 (Shirk).) After the passage of section 340.1, courts began to adopt a more liberal view of delayed discovery in sexual abuse cases, holding that even if the plaintiff recalled the abuse itself, the statute of limitations tolled until the plaintiff appreciated its “wrongfulness.” (Evans v. Eckelman (1990) 216 Cal.App.3d 1609, 1618-1619; Marsha v. Gardner (1991) 231 Cal.App.3d 265, 271.) Although such decisions relaxed the strict rule that any memory of the abuse precluded finding delayed discovery, they continued to reject the argument that the plaintiff’s failure to see the connection between the abuse and his or her current psychological problems justified tolling the statute of limitations. As the court in Evans v. Eckelman, supra, at page 1620 stated, “Unless awareness of the acts is immediately suppressed the plaintiff would necessarily be aware of the injury, and the hidden nature of the full damage would not bring the delayed accrual rule into play.”
The Legislature in 1990 amended section 340.1 and expanded it to apply to any person who sexually abused a child. (Shirk, supra, 42 Cal.4th at p. 215.) It also extended the statute of limitations to eight years from the date the victim “attains the age of majority,” or three years from the date the victim “discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse.” (§ 340.1, subd. (a); Shirk, supra, at p. 215.) A plaintiff over the age of 26 years had to provide a certificate of merit from a mental health practitioner. (Former § 340.1, subds. (a), (b), & (d), as amended by Stats. 1990, ch. 1578, § 1, pp. 7550-7552.) This amendment did not apply to nonabusers.
In 1994, the Legislature again amended section 340.1 by expressly providing that the 1990 amendments “apply to any action commenced on or after January 1, 1991, including any action otherwise barred by the period of limitations in effect prior to January 1, 1991, thereby reviving those causes of action which had lapsed or technically expired under the law existing prior to January 1, 1991.” (Former § 340.1, subd. (o), added by Stats. 1994, ch. 288, § 1, p. 1930.) In 1998, the Legislature amended section 340.1, subdivision (a) to include causes of action for sex abuse against persons or entities other than the perpetrator. (§ 340.1, subd. (a)(2) & (3), added by Stats. 1998, ch. 1032, § 1; Mark K. v. Roman Catholic Archbishop (1998) 67 Cal.App.4th 603, 610, fn. 4.) Under that amendment, the 26 years of age cut-off applied. (§ 340.1, subd. (b)(1), amended by Stats. 1998, ch. 1032, § 1; Shirk, supra, 42 Cal.4th at p. 215.)
In 1999, the Legislature, once more amended section 340.1, clarifying that its 1998 changes relating to the liability of nonabuser persons or entities were prospective and had no retroactive application. (Shirk, supra, 42 Cal.4th at p. 215.) The provisions applied only to actions begun on or after January 1, 1999, or if filed before that time, actions still pending as of that date, “including any action or causes of action which would have been barred by the laws in effect prior to January 1, 1999.” (§ 340.1, subd. (u), added by Stats. 1999, ch. 120, § 1.)
In 2002, the Legislature again amended section 340.1. The amendment revived for the calendar year 2003 those causes of action based on childhood sexual abuse brought against a person or an entity that had “reason to know” or was “on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct.” (§ 340.1, subd. (b)(2), added by Stats. 2002, ch. 149, § 1.) “Thus, this change revived for the year 2003 those causes of action brought by plaintiffs over the age of 26 years against nonabuser persons or entities that would otherwise have been time-barred as of January 1, 2003, ‘solely because the applicable statute of limitations has or had expired’ as of that date. (§ 340.1, subd. (c), italics added.)” (Shirk, supra, 42 Cal.4th at p. 208.)
Section 340.1 currently provides in relevant part: “(a) 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 later, for any of the following actions: [¶] (1) An action against any person for committing an act of childhood sexual abuse. [¶] (2) An action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff. [¶] (3) An action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.
Under this latter amendment, time-barred claims were only revived for one year, until the end of 2003. Dengler did not file his pleading against Doe 1 and Doe 2 until July 2006. Accordingly, Dengler’s claims against Doe 1 and Doe 2 are time-barred unless the delayed discovery rule applies.
III. Delayed Discovery Doctrine
A. Delayed Discovery Under Section 340.1, Subdivision (a)(2)
Dengler maintains that his claims are timely because he did not discover the cause of his psychological injuries until 2005, and he therefore had until 2008 to file his claims for the psychological injuries he suffered as an adult. To the extent that Dengler is claiming that his claim is timely under section 340.1, subdivision (a)(2) because he did not recognize any connection between the emotional injury he suffered to the sexual abuse suffered as a child until he was an adult, the court in Hightower v. Roman Catholic Bishop of Sacramento (2006) 142 Cal.App.4th 759, 766 (Hightower) has already rejected this claim.
In Hightower, one of the arguments made by the plaintiff was that his complaint against nonabusers was timely because he did not discover the cause of his psychological injuries until 2003, and he filed his complaint in 2004, which was within three years of discovering the injury. (Hightower, supra, 142 Cal.App.4th at pp. 763, 767.) The court, however, explained that originally there was a one-year statute of limitations. In 1998, the Legislature first applied the delayed discovery for claims against nonabusers and the statute of limitations was tolled from the discovery of the connection between the psychological injury suffered as an adult and the sexual abuse. (Id. at p. 767.) However, such claims were subject to the outer limit of the plaintiff’s 26th birthday. (Ibid.) The 2003 amendment extended the limitations period for these types of claims to the “later of the plaintiff’s 26th birthday or the date when the plaintiff discovered that his psychological injuries were caused by sexual abuse.” (Ibid.) The court concluded: “At the same time, the Legislature revived for only one year all such claims that were already time-barred. The Legislature therefore drew a clear distinction between claims that were time-barred and those that were not.” (Id. at pp. 767-768.) The Hightower court concluded that the plaintiff’s claim was therefore not timely.
The Hightower court held that an alternative basis for rejecting the plaintiff’s claims was that the plaintiff had not alleged any delayed discovery. (Hightower, supra, 142 Cal.App.4th at p. 768.)
Under the reasoning of Hightower, claims for psychological injury resulting from sexual molestations against nonabusers that had lapsed under the statute of limitations operating at the time had to be filed by the plaintiff’s 26th birthday or the end of 2003. Since Dengler’s pleading was filed in 2006, any earlier claims that were barred by the statute of limitations in effect at the time those claims accrued were not revived.
Our Supreme Court in Shirk, supra, 42 Cal.4th 201, specified that the 2002 amendment to section 340.1 “revived for the year 2003 those causes of action brought by plaintiffs over the age of 26 years against nonabuser persons or entities that would otherwise have been time-barred as of January 1, 2003, ‘solely because the applicable statute of limitations has or had expired’ as of that date. (§ 340.1, subd. (c), italics added.)” (Shirk, supra, at p. 208.)
B. The Equitable Discovery Rule
Dengler maintains that his allegations differ from those in Hightower, because the plaintiff in Hightower did not allege that all memory of the childhood sexual abused had been repressed. (Hightower, supra, 142 Cal.App.4th at p. 767.) Dengler alleged that he did not have any memory of the sexual abuse he suffered as a child until August 2005, and therefore his causes of action for childhood sexual molestation under the equitable discovery rule did not begin to accrue until August 2005. In 2005, the applicable statute of limitations for a claim against a nonabuser for sexual molestation was three years. (§ 340.1, subd. (a).) Since he filed his complaint in July 2006, well within the three-year time limit, Dengler contends that his pleading is not time-barred.
The equitable discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) The discovery rule “may be expressed by the Legislature or implied by the courts.” (Ibid.) “[J]udicial decisions have declared the discovery rule applicable in situations where the plaintiff is unable to see or appreciate a breach has occurred.” (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1423.) In actions where the discovery rule applies, the limitations period does not accrue until the aggrieved party has notice of the facts constituting the injury. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)
Dengler contends that courts have applied the discovery rule to sexual molestation claims and he cites Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405 (Curtis T.). In Curtis T., a guardian ad litem brought a claim against Los Angeles County on behalf of an eight-year-old child who had been molested at age five. (Id. at pp. 1412-1423.) Although the injury occurred three years earlier, the reviewing court held the claim was timely. (Id. at pp. 1422-1423.) Applying the delayed-discovery doctrine, the court found that the claim accrued on the date the child’s guardian learned about the incident. The court stressed that its decision was limited to situations where, “given [the plaintiff’s] youth, ignorance, and inexperience,” a plaintiff can truthfully allege “that he lacked a real awareness, until his mother’s discovery of the alleged molestation, that what happened to him between the ages of five and eight was wrong.” (Id. at p. 1409.)
The present situation is distinguishable from that in Curtis T. In Curtis T., the time for the child plaintiff to file his claim was not tolled under section 340.1, subdivision (a), because the defendant was a public entity. Since a child may not appreciate the wrongful nature of the act, the court in Curtis T. held that the statute of limitations was tolled until the parent or guardian could reasonably discover the sexual abuse. (Id. at p. 1409.) In contrast, in the present case, section 340.1, subdivision (a) does apply and Dengler is an adult plaintiff, not a child plaintiff.
Dengler maintains that he could not appreciate the wrongfulness of the sexual molestation until he actually remembered the act. Since he did not remember the sexual molestation until August 2005, it would have been impossible for him to have suspected that any wrongful act had occurred prior to that time. Thus, the question remains whether the allegations in Dengler’s pleading can be considered timely under the equitable discovery rule.
As noted above, courts have applied the discovery doctrine to sexual molestation cases. (See, e.g., Evans v. Eckelman, supra, 216 Cal.App.3d at p. 1617 [“We conclude that the purposes of the statute of limitations and the rationale of the delayed discovery rule as it has developed in our courts require that accrual of a cause of action for child sexual abuse by a parent or similar figure of authority be delayed until the plaintiff knows or reasonably should know of the cause of action”].) The court in DeRose held that an adult plaintiff had to show no memory of the facts essential to the claim and that the plaintiff did not remember any of the abuse until years afterwards for any tolling to the statute of limitations. (DeRose, supra, 196 Cal.App.3d at p. 1018.) In DeRose, the plaintiff admitted that she was aware of the sexual assault when she was a child, but she was unaware of the emotional harm that it had caused. The DeRose court noted that the delayed discovery rule might have applied if the plaintiff had alleged “that she repressed her memories of the sexual assaults until only one-year before filing her complaint . . . .” (Ibid.) The court explained: “While the assaults that [the plaintiff had] alleged caused serious harm as a matter of law, [the plaintiff] 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. [The plaintiff], 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.” (Ibid.)
The court in Evans v. Eckelman stressed that the statute of limitations for sexual molestation may be tolled until the child-plaintiff discovers the wrongfulness of a defendant’s conduct. (Eckelman, supra, 216 Cal.App.3d at p. 1618.) The court elaborated: “Because of the youth and ignorance of the victims, as well as the unique duties and authority held by the parent, child sexual abuse by a parent or parental figure may in some cases be as effectively concealed from the victim as an underground trespass, a foreign object left in the body after surgery, or the abstruse errors made by a hired professional.” (Id. at p. 1616.) When considering whether the plaintiff’s pleading was timely, the court in Evans v. Eckelman applied the reasoning of DeRose. The court in Evans v. Eckelman determined that the plaintiffs had alleged “ ‘blocking mechanisms[,]’ ” such as “ ‘internalized shame, guilt and self blame.’ ” (Evans v. Eckelman, supra, at p. 1619.) The court explained, “[c]onstrued liberally these allegations might show plaintiffs’ unawareness at the time of the abuse that defendant was acting wrongfully. But they do not indicate how long that ignorance of wrongfulness continued. 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 this action was filed.” (Ibid.) The court concluded, “Although the allegations of the complaint as it stands are insufficient to invoke the delayed discovery rule, there is a reasonable possibility plaintiffs can amend to allege an unawareness, lasting into adulthood, that the acts done to them were wrongful. In addition, the complaint does not preclude amendment to allege that plaintiffs had repressed, into adulthood, memory of the events themselves; such repression would also be sufficient to invoke the discovery rule.” (Ibid.)
In the present case, Dengler alleged that he suppressed or repressed all knowledge or awareness of the sexual abuse until August 2005. Thus, under the equitable discovery rule, he had no awareness of wrongdoing until this point and his claims would have started to accrue from August 2005. The lower court, however, found that this allegation was contradicted by other allegations in his complaint. Specifically, Doe 1 and Doe 2 contend that Dengler’s allegation of repressed memory is contrary to his assertion that “the actions of the perpetrator alleged herein shattered that natural human trust inherent in a child’s relationship with a priest. . . .” Additionally, they point out that Dengler’s seventh cause of action seeks recovery for physical pain and mental suffering he suffered as a child. Finally, they cite Dengler’s allegations that he was embarrassed and humiliated, shocked, and disgraced because of the abuse.
The foregoing allegations, however, do not necessarily contradict Dengler’s allegation of repressed memory. A child can suffer emotional harm and can have relationships “shattered” as a result of the sexual abuse without the child necessarily being aware that a particular wrongful action caused this condition. Thus, a child can be aware of his or her injured psychological state, but have no memory of what caused the injury. (See, e.g., Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1652.) Similarly, a child can feel embarrassment or humiliation without knowing the cause for these emotions or having any memory of the triggering event. According to those experts that believe in the validity of repressed memory, relationships can be destroyed and emotions affected by repressed memories. (See, e.g., Camille W. Cook & Pamela K. Millsaps, Redressing Wrongs of the Blamelessly Ignorant Survivor of Incest, 26 U.Rich. L.Rev. 1 (1991); Blume, Secret Survivors: Uncovering Incest and Its Aftereffects in Women 15 (1990) pp. xvii-xxi [physical and emotional symptoms signaling repressed memories of childhood sexual abuse include gastrointestinal problems, drug or alcohol abuse, compulsive behavior, phobias, suicidal thoughts, “anger issues,” guilt, shame, low self-esteem, and “feeling different”].)
We note that repressed memory syndrome is controversial. (See, e.g., Taus v. Loftus (2007) 40 Cal.4th 683, 712-713; Note, A Claim for Third Party Standing in Malpractice Cases Involving Repressed Memory Syndrome (1995) 37 Wm. & Mary L.Rev. 337, 346 [“Therapists themselves disagree about the validity of recovered memories”].) However, for purposes of the demurrer we accept the allegation of repressed memory as true. Any challenges by Doe 1 and Doe 2 to the actual date when Dengler repressed the memory or to the assertion of repressed memory are factual issues not properly considered by a demurrer.
Doe 1 and Doe 2 also argue that the allegation that the perpetrator’s acts were “offensive” confirms that Dengler was aware of the acts and their offensive nature at the time of the abuse. Dengler alleged that the “perpetrator engaged in unpermitted, harmful and offensive sexual conduct and contact upon” him in violation of Civil Procedure section 340.1. This allegation does not necessarily contradict his assertion that he did not remember the sexual molestations until August 2005. The perpetrator could have engaged in an act that he now remembers as being unpermitted, harmful, and offensive.
Accordingly, we conclude that the allegations in the pleading are not necessarily inconsistent and Dengler has sufficiently plead that he had no recall of the sexual molestations that happened to him as a child until August 2005 when he was an adult in his late 30s. Dengler has therefore sufficiently plead that the statute of limitations was tolled until he recovered his memory of the abuse in August 2005. Since he filed his pleading within three years of August 2005, the demurrer against his complaint was improperly sustained.
We need not address Dengler’s claim that the 2002 amendment to section 340.1 applies retroactively.
DISPOSITION
The judgment is reversed. Dengler is awarded the costs of appeal.
We concur: Kline, P.J., Haerle, J.
“(b)(1) No action described in paragraph (2) or (3) of subdivision (a) may be commenced on or after the plaintiff’s 26th birthday. [¶] (2) This subdivision does not apply if the person or entity knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, 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. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard.
“(c) Notwithstanding any other provision of law, any claim for damages described in paragraph (2) or (3) of subdivision (a) that is permitted to be filed pursuant to paragraph (2) of subdivision (b) that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired, is revived, and, in that case, a cause of action may be commenced within one year of January 1, 2003. Nothing in this subdivision shall be construed to alter the applicable statute of limitations period of an action that is not time barred as of January 1, 2003.
“(d) Subdivision (c) does not apply to either of the following: [¶] (1) Any claim that has been litigated to finality on the merits in any court of competent jurisdiction prior to January 1, 2003. Termination of a prior action on the basis of the statute of limitations does not constitute a claim that has been litigated to finality on the merits. [¶] (2) Any written, compromised settlement agreement which has been entered into between a plaintiff and a defendant where the plaintiff was represented by an attorney who was admitted to practice law in this state at the time of the settlement, and the plaintiff signed the agreement.
“[¶] . . . [¶] (g) Every plaintiff 26 years of age or older at the time the action is filed shall file certificates of merit as specified in subdivision (h).
“[¶] . . . [¶] (r) The amendments to this section enacted at the 1990 portion of the 1989-90 Regular Session shall apply to any action commenced on or after January 1, 1991, including any action otherwise barred by the period of limitations in effect prior to January 1, 1991, thereby reviving those causes of action which had lapsed or technically expired under the law existing prior to January 1, 1991.
“(s) The Legislature declares that it is the intent of the Legislature, in enacting the amendments to this section enacted at the 1994 portion of the 1993-94 Regular Session, that the express language of revival added to this section by those amendments shall apply to any action commenced on or after January 1, 1991.
“(t) Nothing in the amendments to this section enacted at the 1998 portion of the 1997-98 Regular Session is intended to create a new theory of liability.
“(u) The amendments to subdivision (a) of this section, enacted at the 1998 portion of the 1997-98 Regular Session, shall apply to any action commenced on or after January 1, 1999, and to any action filed prior to January 1, 1999, and still pending on that date, including any action or causes of action which would have been barred by the laws in effect prior to January 1, 1999. Nothing in this subdivision is intended to revive actions or causes of action as to which there has been a final adjudication prior to January 1, 1999.”