On October 13, 2019, the Governor signed into law AB 128, which makes significant changes in both the statute of limitations for claims for childhood sexual assault, and the status of lawsuits against public entities for childhood sexual assault that were previously barred by the Government Claims Act. The new laws go into effect January 2020.
Significant changes include:
- An amendment to Government Code section 905, which lists causes of action exempt from the Government Claims Act's claim-presentation requirements. The current version of section 905, subdivision (m) excludes "Claims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse. This subdivision shall apply only to claims arising out of conduct occurring on or after January 1, 2009." AB 128 changes this language to: "Claims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual assault." The amendment thus changes the excluded cause of action from harassment to assault, and removes the cutoff date of January 1, 2009. This change was made to address case law holding that childhood sexual abuse causes of action for which the statute of limitations for filing suit had not expired, due to changes in the statute of limitations, were nevertheless barred if the deadline for presenting a claim had expired.
- Multiple changes to Code of Civil Procedure section 340.1, the statute of limitations for childhood sexual abuse. Among the changes:
- An expansion of the definition of childhood sexual abuse, which the amendment redubs childhood sexual assault.
- An expansion of the statute of limitations for childhood sexual assault claims. Under the current law, the deadline to sue is the age of 26 or three years after the discovery that psychological injury occurring after age 18 was caused by childhood sexual abuse. The amendment extends the limitations period to age 40, or five years after the discovery of the childhood sexual abuse cause, whichever is later.
- Subdivision (q) revives causes of action barred by the previous statute of limitations or the Government Claims Act: "Notwithstanding any other provision of law, any claim for damages described in paragraphs (1) through (3), inclusive, of subdivision (a) that has not been litigated to finality and that would otherwise be barred as of January 1, 2020, because the applicable statute of limitations, claim presentation deadline, or any other time limit had expired, is revived, and these claims may be commenced within three years of January 1, 2020. A plaintiff shall have the later of the three-year time period under this subdivision or the time period under subdivision (a) as amended by the act that added this subdivision."
- Subdivision (b)(1) provides for up to treble damages for plaintiffs who prove their sexual assault was the result of a "cover up," unless otherwise prohibited by law. (Whether this provision applies to public entities, who are statutorily protected from punitive damages, remains to be seen.)
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