Filed 8/17/21; Certified for Publication 8/25/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
RYAN HOLMAN, C093268
Plaintiff and Appellant, (Super. Ct. No. 20CV00578)
v.
COUNTY OF BUTTE et al.,
Defendants and Respondents.
Plaintiff Ryan Holman sued the County of Butte, the County of Butte Health and
Human Services Department (Health and Human Services), and the County of Butte
Sheriff’s Office (Sheriff’s Office) (collectively County) for negligence under a theory
Health and Human Services and the Sheriff’s Office failed to perform mandatory duties
under Government Code section 815.6 related to the investigation and reporting of
allegations of child abuse perpetrated against plaintiff by his parents. The County
demurred, contending plaintiff’s allegations were time barred by Code of Civil
Procedure1 section 338, subdivision (a). The question before the trial court was, and on
1 Further section references are to the Code of Civil Procedure unless otherwise
specified.
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appeal is, whether the discovery -- which postpones the accrual of a cause of action until
such time as the facts underlying the cause of action were or should have been discovered
-- is available to plaintiff to excuse his filing of the complaint after the statute of
limitations had expired. The trial court agreed with the County that the discovery rule
was unavailable when section 338, subdivision (a) is the applicable statute of limitations.
We disagree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was born in January 1992 and lived the majority of his adolescent and
teenage years in Butte County with his mother and father. In 2004, when plaintiff was 12
years old, plaintiff’s father “began a pattern of physically and emotionally abusing
Plaintiff’s mother . . . in the presence of Plaintiff. This included striking [her] with fists,
shouting at her, using insults and vulgar and abusive language, and other forms of
physical and emotional abuse.” In 2006, when plaintiff was 14 years old, “his parents
began practicing a pattern of physical abuse against [him] including striking him with
fists, attempting to kick him, other physical abuse, and threatening him with violence and
retaliation. Plaintiff’s parents subjected him to such abuse continuously for
approximately four years until on or about until April 2008.”
Plaintiff alleged in the operative complaint that in May 2006, Health and Human
Services “received a referral of substantiated child abuse by Plaintiff’s teacher, a
mandatory reporter.” Upon receiving the report, Health and Human Services “failed to
accurately fill out” the screening forms by “failing to mark categories for reports of ‘cruel
or excessive corporal punishment’, ‘threats of physical harm’, ‘Domestic Violence’,
‘failure to protect’ among other appropriate screening categories leading [it] to ‘evaluate
out’ the referral without making any follow up steps.” The screening form recommends
an “ ‘in-person’ response if any single category is marked on the evaluation form.”
Plaintiff alleged Health and Human Services “had a mandatory duty pursuant to Welfare
and Institutions Code Sections 300 and 328 to conduct some investigation of
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substantiated abuse allegations” and its failure to do so resulted in the continued abuse of
plaintiff and “lifelong consequences including but not limited to: post-traumatic stress
disorder, obsessive-compulsive disorder, anxiety disorder(s), depression, with the effect
of substantially limiting one or more major life activities, and requiring professional
treatment and counseling for the rest of Plaintiff’s life.”
Health and Human Services also did not cross-report the report of child abuse to
the Butte County District Attorney or the Sheriff’s Office. This “was the beginning of a
series of insufficiently documented violations of Penal Code [section] 11166, causing
subsequent contacts with the Sheriff’s Office to appear to be isolated instances of
unsubstantiated abuse . . . .”
Plaintiff did not become aware of the report of child abuse until the person who
had made the report told him about it in 2019. Also, in “December of 2017, Plaintiff was
subjected to a violent outburst by his father while at the Chico home of his parents for the
holidays. [¶] . . . Prior to the December 2017 traumatizing event, Plaintiff was suffering
from trauma induced amnesia, as diagnosed by his mental health treatment provider. [¶]
. . . Plaintiff’s trauma induced amnesia prevented him from remembering the consistent
and repeated abuse that he suffered at the hands of his father and mother years earlier. [¶]
. . . However, the traumatizing event in December of 2017 served as a ‘triggering’ event
causing many of Plaintiff’s childhood memories of abuse to return. [¶] . . . As these
traumatic memories returned to Plaintiff in early 2019, Plaintiff began to investigate his
history within the Butte County welfare system. [¶] . . . Prompted by his recent
recovered memories of traumatic childhood abuse, the Plaintiff submitted inquiry in
October 2019 to [Health and Human Services] agency seeking any records of reported
abuse from his childhood. [¶] . . . Plaintiff’s October 2019 inquiry led [Health and
Human Services] to inform Plaintiff in writing in an October 29, 2019 letter, of the report
of substantiated suspected child abuse that went unaddressed and un-investigated by
Butte County years earlier.” “Prior to receiving the October 2019 letter, the Plaintiff had
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no way of knowing [Health and Human Services] ever received the report of child abuse
at the hands of his father.”
Based on these facts, plaintiff filed a complaint in February 26, 2020. In the
operative complaint, plaintiff’s first cause of action alleged the County of Butte and
Health and Human Services failed to perform the mandatory duty required by Welfare
and Institutions Code section 328 “(with correlated [Welfare and Institutions Code]
Section 300) by failing to perform or conduct any investigation or follow up after
receiving a substantiated child abuse report” in May 2006. Plaintiff’s second cause of
action alleged the County of Butte and Health and Human Services failed to cross-report
“ ‘a known or suspected instance of child abuse’ ” to the Sheriff’s Office and Butte
County District Attorney’s Office as required by Penal Code section 11166,
subdivision (j). Plaintiff’s third cause of action alleged the Sheriff’s Office violated
Penal Code section 11166, subdivision (k) “by repeatedly failing to cross report a ‘known
or suspected instance of child abuse’ to [Health and Human Services] and to the Butte
County District Attorney’s Office.” This allegation was based on the alleged failure to
cross report the substantiated reports of suspected child abuse the Sheriff’s Office
investigated on May 27, 2007, September 9, 2007, and April 15, 2008.
The County demurred arguing the applicable statute of limitations for all of
plaintiff’s causes of action was found in section 338, subdivision (a), which applied a
three-year statute of limitation from the date the alleged wrongdoing occurred, not when
defendant learned of it. This was because, in the County’s view, section 338,
subdivision (a) does not provide for application of the discovery rule unless the statute
expressly states that the discovery rule applies. Plaintiff agreed with the County as it
pertained to the applicable statute of limitations. Plaintiff, however, disagreed about the
discovery rule. In that regard, he argued the rule did not apply only through a statutory
mandate, but also applied through common law. In reply, the County again asserted that
the delayed discovery rule did not apply to causes of action described in section 338,
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subdivision (a) and additionally argued that, even if the delayed discovery rule were
applicable, plaintiff failed to allege sufficient facts justifying the 26-month delay from the
time he had inquiry notice until he filed the instant litigation.
The trial court agreed with the County, in “that Plaintiff has failed to present any
authority to support application of the delayed discovery rule to the applicable statute of
limitations in this case as set forth in Code of Civil Procedure Section 338(a). The
Demurrer is sustained without leave to amend . . . .” Plaintiff’s suit was then dismissed.
Plaintiff appeals.
DISCUSSION
The parties agree that the applicable statute of limitations is that found in
section 338, subdivision (a), which provides that the time to commence “[a]n action upon
a liability created by statute, other than a penalty or forfeiture” is three years. They
disagree about whether plaintiff can rely on the discovery rule to excuse his delay in
filing his action beyond that provided by section 338, subdivision (a). We agree with
plaintiff that the common law discovery rule is available when the statute of limitations
under section 338, subdivision (a) is the applicable statute of limitations.
“ ‘Statute of limitations’ is the ‘collective term . . . commonly applied to a great
number of acts,’ or parts of acts, that ‘prescribe the periods beyond which’ a plaintiff may
not bring a cause of action. [Citations.] It has as a purpose to protect defendants from
the stale claims of dilatory plaintiffs. [Citations.] It has as a related purpose to stimulate
plaintiffs to assert fresh claims against defendants in a diligent fashion. [Citations.]
Inasmuch as it ‘necessarily fix[es]’ a ‘definite period[] of time’ [citation], it operates
conclusively across the board, and not flexibly on a case-by-case basis. [Citations.] That
is to say, a cause of action brought by a plaintiff within the limitations period applicable
thereto is not barred, even if, in fact, the former is stale and the latter dilatory;
contrariwise, a cause of action brought by a plaintiff outside such period is barred, even
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if, in fact, the former is fresh and the latter diligent.” (Norgart v. Upjohn Co. (1999) 21
Cal.4th 383, 395.)
“To establish any such period under any such statute belongs to the Legislature
alone (Weinberger v. Weidman (1901) 134 Cal. 599, 602, [66 P. 869]), subject only to
constitutional constraints (see Regents of University of California v. Superior Court
[(1999)] 20 Cal.4th [509,] 534.) [¶] Under the statute of limitations, a plaintiff must
bring a cause of action within the limitations period applicable thereto after accrual of the
cause of action. [Citations.] [¶] The general rule for defining the accrual of a cause of
action sets the date as the time ‘when, under the substantive law, the wrongful act is
done,’ or the wrongful result occurs, and the consequent ‘liability arises.’ [Citation.] In
other words, it sets the date as the time when the cause of action is complete with all of
its elements [citations].
“An exception to the general rule for defining the accrual of a cause of action --
indeed, the ‘most important’ one -- is the discovery rule. [Citation.] It may be expressed
by the Legislature or implied by the courts. [Citation.] It postpones accrual of a cause of
action until the plaintiff discovers, or has reason to discover, the cause of action.”
(Norgart v. Upjohn Co., supra, 21 Cal.4th at pp. 396-397.)
The County contends that in the case of section 338, subdivision (a) the
Legislature did not expressly provide for the discovery rule to apply and the court is
precluded from implying it given the composition of section 338 as a whole. According
to the County, because multiple subdivisions of section 338 expressly provide for the
application of the discovery rule, and subdivision (a) does not, the discovery rule is not
available for claims to which subdivision (a) applies. We disagree.
Like subdivision (a) of section 338, subdivision (b) also does not provide for
application of the discovery rule, nor does subdivision (g). But courts have applied the
discovery rule to those subdivisions. (Baxter v. State Teachers’ Retirement System
(2017) 18 Cal.App.5th 340, 358 [cases cited therein].) Indeed, absent the Legislature’s
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clear intent, we presume it intended to make the common law discovery rule applicable to
section 338, subdivision (a). (See Saint Francis Memorial Hospital v. State Dept. of
Public Health (2020) 9 Cal.5th 710, 720-722 [equitable tolling applied to 30-day statute
of limitations in which to file a petition for a writ of mandate because the Legislature did
not express its intent to reject the doctrine’s application as “ ‘part of the established
backdrop of American law’ ”].)
Here, the Legislature did not provide that the discovery rule was inapplicable, nor
did it adopt a statute of repose cutting off all liability after a given amount of time no
matter the circumstances. (Cf. § 337.15; Saint Francis Memorial Hospital v. State Dept.
of Public Health, supra, 9 Cal.5th at pp. 722-723 [The Legislature “ ‘specified in section
337.15 that whatever limitations periods might otherwise apply, “no action” for injury to
property arising from latent construction defects “may be brought” more than 10 years
after substantial completion of the project.’ [Citation.] The statute’s 10-year limitations
period, therefore, was intended ‘to be firm and final.’ ”]; see also Regents of University of
California v. Superior Court, supra, 20 Cal.4th at pp. 521, 527-529 [30-day statute of
limitations in which to sue to nullify a government act did not lend to exception where
statute provided that “[a]ny action seeking such a judicial determination shall be
commenced within 30 days from the date the [government] action was taken”].)
Further, judicial application of the discovery rule to subdivision (a) does not
render the codified discovery rules in the section’s other subdivisions surplusage. The
other subdivisions of section 338 that expressly address the discovery rule merely provide
different triggers of the limitation period than the judicial rule, which postpones accrual
of a cause of action until the plaintiff discovers, or has reason to discover, the cause of
action. (§ 338, subds. (c) [accrual upon the discovery of the whereabouts of an article of
historical, interpretive, scientific, or artistic significance], (d) [accrual upon discovery of
facts constituting the fraud or mistake], (e)-(f), (h)-(i), (k)-(l), (o) [accrual upon discovery
of facts constituting the cause of action].)
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Moreover, unlike the parties, we have discovered a case that applied the discovery
rule to section 338, subdivision (a). In Craig v. City of Poway (1994) 28 Cal.App.4th
319, the court concluded the plaintiff’s delay in filing a lawsuit against a redevelopment
agency was excused because she had no actual or constructive notice of the conduct
giving rise to her claim -- the redevelopment agency, without providing public notice,
spent money from an affordable housing fund on an unrelated project in violation of
Health and Safety Code sections 33334.2 and 33334.3. (Craig, at pp. 327, 340-341.)
Instead, the County relies on Evans v. Eckelman (1990) 216 Cal.App.3d 1609, to
argue the discovery rule cannot apply given the underlying causes of action. In Evans,
the court concluded the discovery rule applied to the statute of limitations applicable to
victims of child molestation because child victims do not understand their injury and
because they are taken advantage of in the context of a special relationship. (Id. at
pp. 1615-1617.) It reasoned that most of the cases applying the discovery rule were cases
in which the plaintiff could not easily ascertain his or her injury and there existed a
confidential or fiduciary relationship between the parties. (Id. at pp. 1614-1615.) The
County argues that because that is not the case here, the discovery rule is inapplicable.
The justifications pointed out by the Evans court, however, are relevant to when
the plaintiffs knew or should have known the salient facts underlying their cause of action
(see Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897 [“the uniform California rule is that a
limitations period dependent on discovery of the cause of action begins to run no later
than the time the plaintiff learns, or should have learned, the facts essential to his
claim”]), not whether the discovery rule was available to this class of plaintiffs in the first
place. Indeed, in the cases relied upon by the Evans court, our Supreme Court did not
conclude the discovery rule was available because of the type of claim brought by the
plaintiffs. Our Supreme Court concluded that because the facts established the plaintiffs
could not have reasonably discovered their injuries and the cause of those injuries until
after the negligent act occurred, those plaintiffs could rely on the discovery rule to
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postpone the running of the statute of limitations. (See Jolly v. Eli Lilly & Co. (1988) 44
Cal.3d 1103, 1110 [after rejecting that knowledge of a legal claim was required before a
cause of action could accrue, our Supreme Court said, “Under the discovery rule, the
statute of limitations begins to run when the plaintiff suspects or should suspect that her
injury was caused by wrongdoing, that someone has done something wrong to her”]; Neel
v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 190-192 [determined
that, in the face of Legislative silence, the discovery rule required the accrual of a legal
malpractice claim to commence when the plaintiff discovered the facts supporting the
cause of action]; Huysman v. Kirsch (1936) 6 Cal.2d 302, 312-313 [determined the
discovery rule prevented the plaintiff’s medical malpractice causes of action from
accruing while the plaintiff was ignorant of the cause of the injury and could not with
reasonable care and diligence ascertain such cause]; Marsh v. Industrial Accident Com.
(1933) 217 Cal. 338, 351 [determined the statute of limitations could not run against an
injured employee during the time said person was ignorant of the cause of his disability
and could not with reasonable care and diligence ascertain such cause].) The fact that
each of those plaintiffs suffered an injury that was hard to detect or that their individual
tortfeasors were in a special relationship with them, informed our Supreme Court’s
conclusion the plaintiffs reasonably could not have discovered the facts underlying their
causes of action earlier.
Indeed, the judicially applicable discovery rule serves to ameliorate the harshness
of the general rule that the statute of limitations begins to run regardless of a plaintiff’s
knowledge. The discovery rule is applicable “where it would be manifestly unjust to
deprive a plaintiff of a cause of action before he is aware he has been injured.” (Mangini
v. Aerojet-Gen. Corp. (1991) 230 Cal.App.3d 1125, 1150.) “Whether the discovery rule
applies at all is initially a matter of pleading.” (Ibid.) “In order to rely on the discovery
rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its
face that his claim would be barred without the benefit of the discovery rule must
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specifically plead facts to show (1) the time and manner of discovery and (2) the inability
to have made earlier discovery despite reasonable diligence.’ [Citation.] In assessing the
sufficiency of the allegations of delayed discovery, the court places the burden on the
plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’ ”
(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)
In that regard, the County does not contend plaintiff’s failure to discover his cause
of action before the December 2017 triggering event was unreasonable. Instead, it argues
plaintiff failed to meet his burden because he did not plead facts demonstrating he
diligently investigated his claim after the traumatizing event in December 2017 triggered
his memories of abuse. The problem with the County’s argument is that, whether diligent
or not, plaintiff brought his claim within three years of the triggering event, thus falling
within the statute of limitations when the discovery rule is applied. The discovery rule
postpones accrual of a cause of action until the plaintiff discovers, or has reason to
discover, the cause of action. Once the cause of action accrues, the injured party still has
the statute of limitations period to investigate the parameters of his or her claim.
(Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397.) Because plaintiff filed his action
within three years from when he had reason to know of his causes of action, his suit is
timely.
DISPOSITION
The judgment is reversed. Plaintiff shall his recover costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1).)
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Renner, J.
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Filed 8/25/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
RYAN HOLMAN, C093268
Plaintiff and Appellant, (Super. Ct. No. 20CV00578)
v. ORDER CERTIFYING
OPINION FOR
COUNTY OF BUTTE et al., PUBLICATION
Defendants and Respondents.
THE COURT:
The opinion of this court filed August 17, 2021, was not certified for publication
in the Official Reports. For good cause it now appears the opinion should be published in
its entirety in the Official Reports and it is so ordered.
BY THE COURT:
/s/
Raye, P. J.
/s/
Robie, J.
/s/
Renner, J.
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EDITORIAL
APPEAL from a judgment of the Superior Court of Butte County, Tamara L.
Mosbarger, Judge. Reversed.
Ryan Holman, in pro. per., and for Plaintiff and Appellant.
Bruce S. Alpert, Butte County Counsel, Brad Stephens, Assistant County Counsel;
Law Offices of Gregory P. Einhorn, Gregory P. Einhorn, for Defendants and
Respondents.
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