Filed 1/27/16 Doe v. Pleasant Valley Baptist Church CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




JANE DOE,                                                                                    C073030

                   Plaintiff and Appellant,                                        (Super. Ct. No. 152453)

         v.

PLEASANT VALLEY BAPTIST CHURCH et al.,

                   Defendants and Respondents.




         Plaintiff Jane Doe appeals from a judgment of dismissal following the trial court’s
sustaining of a demurrer to her second amended complaint alleging “Childhood Sexual
Abuse and Negligence” against defendants Pleasant Valley Baptist Church (Church) and
Tim Ruhl, pastor of the church and principal of the church high school plaintiff attended.
Plaintiff alleges these defendants caused her “betrayal trauma” and “secondary
victimization” by being insensitive to her in their handling of her report in 2003, at age




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14, that youth pastor and teacher David Jorgensen had sexually molested her. Jorgensen
is not a party to this appeal.
       Plaintiff filed this lawsuit on December 10, 2010, alleging negligence and
infliction of emotional distress against Church and Ruhl. The trial court ruled the lawsuit
was barred by the two-year statute of limitations of Code of Civil Procedure section
335.1 for injury “caused by the wrongful act or neglect of another,” tolled until plaintiff
turned 18, the age of majority (§ 352). (Undesignated statutory references are to the
Code of Civil Procedure.)
       The operative pleading in this appeal, the second amended complaint, labels the
claim as one of “Childhood Sexual Abuse and Negligence,” hoping to invoke the longer
statute of limitations of section 340.1 for civil actions based upon sexual abuse of a
minor. However, with respect to liability of third parties who are not the actual
perpetrators of sexual abuse, section 340.1 applies only to such third parties whose
breach of a duty of care or intentional misconduct was “a legal cause of the childhood
sexual abuse.”
       We conclude the complaint fails to allege facts warranting the extended limitations
period of section 340.1. To the extent plaintiff invokes common law doctrines of delayed
discovery and equitable estoppel, they are inapplicable as a matter of law.
       We affirm the judgment of dismissal.

                                 FACTS AND PROCEEDINGS

       Plaintiff first initiated this lawsuit with a complaint filed December 10, 2010,
alleging Jorgensen molested her from April 2002 until April 2003. Plaintiff alleged six
counts: (1) negligence, (2) battery, (3) sexual battery (Civ. Code, § 1708.5), (4)
intentional or reckless infliction of emotional distress, (5) Unruh Civil Rights violation,
and (6) defamation. She later dismissed the defamation count without prejudice.




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       Church and Ruhl filed a motion for summary judgment or summary adjudication
on various grounds supported by deposition testimony, including lack of basis for
vicarious liability for Jorgensen’s misconduct. In opposition, plaintiff submitted her own
declaration.
       Before resolution of the summary judgment motion, Church and Ruhl filed a
motion for judgment on the pleadings, arguing all counts were barred by the two-year
statute of limitations for “[a]n action for assault, battery, or injury to, or for the death of,
an individual caused by the wrongful act or neglect of another.” (§ 335.1.) The trial
court granted judgment on the pleadings but allowed plaintiff leave to amend the
complaint. The court ruled the summary judgment motion moot.
       On June 26, 2012, plaintiff filed her first amended complaint alleging counts for
Childhood Sexual Abuse and Negligence, battery, sexual battery, and infliction of
emotional distress. Church and Ruhl filed a demurrer on statute of limitations grounds.
The trial court sustained the demurrer but granted plaintiff leave to amend the first count.
       On October 4, 2012, plaintiff filed the operative pleading, the second amended
complaint, alleging one cause of action against Church and Ruhl for “Childhood Sexual
Abuse and Negligence.” The other counts (battery, sexual battery, and infliction of
emotional distress) were alleged against Jorgensen only.
       The second amended complaint alleged Jorgensen sexually molested plaintiff from
April 2002 to April 2003. Plaintiff informed Ruhl, who kept Jorgensen employed for
seven days. Plaintiff alleged a special relationship with Ruhl and Church. She alleged
that, upon her describing Jorgensen’s misconduct to Ruhl, “state law required Defendant
RUHL to immediately report JORGENSEN’s conduct to law enforcement authorities and
to take reasonable steps to implement reasonable safeguards to avoid acts of unlawful
sexual conduct in the future by Defendant JORGENSEN.” Plaintiff alleged Ruhl
breached his duties in that he failed to notify law enforcement immediately (Pen. Code,
§§ 11165.7, 11165.14), failed to provide her with a support person during interviews

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(Pen. Code, § 11174.3), and failed to comply with Penal Code section 11164, which
provides, “In any investigation of suspected child abuse or neglect, all persons
participating in the investigation . . . shall consider the needs of the child victim and shall
do whatever is necessary to prevent psychological harm to the child victim.” Plaintiff
alleged Ruhl breached his duty to her “by retaining . . . JORGENSEN in church
employment for seven (7) days.” The pleading did not allege that any sexual abuse
occurred after plaintiff reported it to Ruhl.
           Plaintiff alleged Church and Ruhl had a duty to protect her from “secondary
victimization” which psychologists allegedly described as occurring “when the societal
response to a victimizing stigma is more disabling than the primary stigmatic condition
itself.”
           Plaintiff alleged Ruhl “engaged in the secondary victimization of Plaintiff DOE by
committing the following acts:
           “1. RUHL interviewed Plaintiff without a comfort person to support Plaintiff;
           “2. RUHL accused Plaintiff of falsehood and fantasy;
           “3. RUHL argued that Plaintiff needed proof other than her factual eyewitness
description of the offense;
           “4. RUHL forced Plaintiff to repeat her allegations in the presence of Plaintiff’s
parents who were themselves under the deep influence of RUHL;
           “5. RUHL forced Plaintiff to repeat her allegations against JORGENSEN in the
presence of JORGENSEN while [he] was seated behind an office desk next to RUHL;
           “6. JORGENSEN was allowed to confront, contradict and discount Plaintiff’s
accusations in the presence of RUHL, in RUHL’s office, with the support and imprimatur
of RUHL’s authority;
           “7. RUHL failed and refused to provide psychological counseling or assistance
upon learning of Plaintiff’s reported trauma, during the confrontational settings in
RUHL’s office or at any time thereafter;

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       “8. RUHL threatened Plaintiff not to disclose her molestation by JORGENSEN to
any other persons;
       “9. Upon learning that Plaintiff had disclosed her molestation to others, RUHL
confronted Plaintiff and expelled Plaintiff from the church school but when confronted by
Plaintiff’s mother, relented and allowed Plaintiff to return to school;
       “10. RUHL praised JORGENSEN after learning of JORGENSEN’s confession to
Plaintiff’s molestation accusations;
       “11. RUHL wrote laudatory letters on behalf of JORGENSEN to [his] sentencing
judge; and
       “12. Two weeks before her graduation from the church high school, RUHL
expelled Plaintiff denying her a high school graduation in retaliation for reporting
JORGENSEN’s sexual molest.”
       The second amended complaint alleged Ruhl’s conduct toward plaintiff
“following his knowledge of her molestation” created in her “ ‘betrayal trauma,’ caused
when a person or institution upon whom the victim depends . . . for emotional support
and personal security, takes up the cause of the very person who betrayed Plaintiff’s trust
and security.”
       Plaintiff alleged that, after she missed her high school graduation, she stayed in
Chico for awhile, then moved to Montana, then Alaska, then Scotland and England, then
Australia, then back to Scotland. She returned to Chico in January 2010. Within two
years before filing this lawsuit, she started treatment with a clinical psychologist. Only
through therapy did she “discover” that her psychological problems (depression, anxiety,
obsessive compulsive disorder (OCD), and suicidal ideation) were “caused equally” by
Jorgensen molesting her and the “aforementioned treatment” by Church and Ruhl.
       Plaintiff alleged: “In addition to [Ruhl’s and Church’s] policy of training students
to revere and obey teachers and pastors without questions, Defendants and each of them,
failed to instruct, train, inform students about how to properly defend themselves against

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sexual predators to whom they might be exposed. The combined absence of defensive
information coupled with a reverence to church authority created an environment making
a minor especially vulnerable to sexual predation. Sex education or family life education
was intentionally omitted from the [Church] curriculum. [¶] Accordingly, as noted by
both Plaintiff’s treating psychologist and Defendant’s independent medical examiner, the
trauma Plaintiff experienced in her initial molestation was greatly enlarged by the
subsequent conduct of Defendant Ruhl which boiled down to its central impact on
Plaintiff and constituted ‘secondary victimization’ of Plaintiff and ‘betrayal trauma.’
Therefore in doing the acts set forth herein, [Ruhl and Church] committed the act of
negligent childhood sexual abuse.” (Italics added.)
       Upon the stipulation of all parties, the trial court approved a good faith settlement
between plaintiff and Jorgensen and entered a dismissal of Jorgensen with prejudice.
       Church and Ruhl demurred and moved to strike the Second Amended Complaint
on grounds that (1) it is barred by the statute of limitations, and (2) it fails to state facts
sufficient to constitute a cause of action against the Church or Ruhl for childhood sexual
abuse/negligence. Church and Ruhl argued the attempt to allege third party liability
against them for Jorgensen’s sexual abuse of a minor was inconsistent with plaintiff’s
declaration in opposition to summary judgment, in which she described the acts of
“childhood sexual abuse,” all committed by Jorgensen, and all committed before plaintiff
reported the abuse to Ruhl. Defendants also noted the declaration was inconsistent with
any claim of delayed discovery.
       In opposition to the demurrer, plaintiff did not object to consideration of her
declaration but instead argued her declaration was not inconsistent because there was no
prior need to address delayed discovery. Plaintiff did not address the point that her
declaration did not disclose any sexual abuse occurring after her report to Ruhl.




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       The trial court denied the motion to strike, concluded the lawsuit against Church
and Ruhl was barred by the statute of limitations, and sustained the demurrer without
leave to amend.

                                         DISCUSSION

                                               I

                                     Standard of Review

       “On appeal from a judgment dismissing an action after sustaining a demurrer
without leave to amend, . . . [t]he reviewing court gives the complaint a reasonable
interpretation, and treats the demurrer as admitting all material facts properly pleaded.
[Citations.] The court does not, however, assume the truth of contentions, deductions or
conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several
grounds of demurrer is well taken. . . .’ However, it is error for a trial court to sustain a
demurrer when the plaintiff has stated a cause of action under any possible legal theory.
[Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend
if the plaintiff shows there is a reasonable possibility any defect identified by the
defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-967.) The burden is on the appellant to show a reasonable
possibility of curing a defect. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Our review
is de novo. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)

                                               II

           Applicable Statute of Limitations is Section 335.1, Not Section 340.1

       Section 335.1 sets a two-year statute of limitations for actions for injury to an
individual “caused by the wrongful act or neglect of another.” Where a cause of action
accrues while the plaintiff is a minor, the two-year limitations period is tolled until the
plaintiff reaches the age of majority. (§ 352.)


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         Here, the two-year period began to run on plaintiff’s 18th birthday in April 2006
and expired in April 2008. Her lawsuit filed on December 10, 2010, was too late.
         Plaintiff argues her case is governed by section 340.1, which affords an extended
statute of limitations in civil actions for child sex abuse. However, section 340.1 by its
own terms applies only against perpetrators of sexual abuse or third parties whose
negligent or intentional acts were a “legal cause of the childhood sexual abuse.”
         Section 340.1 provides in 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.
         “(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

                                               8
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. [¶]
. . . [¶]
            “(e) ‘Childhood sexual abuse’ as used in this section includes any act committed
against the plaintiff that occurred when the plaintiff was under the age of 18 years and
that would have been proscribed by [some or all subdivisions of Penal Code sections
266j, 285, 286, 288, 288a, 289, 647.6]; or any prior laws of this state of similar effect at
the time the act was committed. Nothing in this subdivision limits the availability of
causes of action permitted under subdivision (a), including causes of action against
persons or entities other than the alleged perpetrator of the abuse. . . .”
            Plaintiff apparently assumes that, because section 340.1 applies not only to the
molester but also to “third part[ies],” it must apply here. She spends most of her
appellate brief arguing she is entitled to the delayed discovery provision in section 340.1.
            But plaintiff fails to show section 340.1 applies at all. By its own terms, it applies
only to third parties whose conduct was “a legal cause of the childhood sexual abuse.”
The Second Amended Complaint contained no factual allegations that Church or Ruhl
was a legal cause of sexual abuse. There was no allegation that any sexual abuse
occurred after the report to Ruhl. There was no allegation that Church or Ruhl knew or
should have known of any prior acts of sexual abuse by Jorgensen (and did not even
allege that there were any such prior incidents with other victims). The complaint did not
allege negligent hiring, retention, or supervision of Jorgensen, or failure to protect from
further sexual abuse. Thus, this case is distinguishable from plaintiff’s cited authority,
Quarry v. Doe I (2012) 53 Cal.4th 945 (Quarry), in which victims sued a bishop, alleging
he was liable for sexual abuse committed by a parish priest because the priest was under
the bishop’s direct supervision, employ, and control. (Id. at p. 953.) The complaint

                                                   9
alleged Doe defendants in the diocese knew or had reason to know the priest had
committed unlawful sexual abuse in the past and failed to execute their duty to take
reasonable steps to prevent future acts of sexual misconduct, such as by preventing him
from working in contact with children. (Ibid.) The complaint alleged negligent hiring,
retention, and supervision of the priest despite knowledge of his prior acts of sexual
abuse, and negligent failure to protect the plaintiffs or warn them of their peril. (Id. at p.
954.) There was no dispute in Quarry that section 340.1 applied. Applying section
340.1, the Supreme Court held the lawsuit was untimely because the plaintiffs’ claims
lapsed in 1998 and were not filed within a one-year revival period authorized by the
Legislature in 2002. (Id. at pp. 968-972.) The Quarry court had no reason to address or
decide the matter at issue in this appeal, and therefore the opinion does not help plaintiff.
       Here, the complaint alleged state law required Ruhl “to take reasonable steps to
implement reasonable safeguards to avoid acts of unlawful sexual conduct in the future,”
but the complaint acknowledged defendants fired Jorgensen seven days after they learned
of the sexual abuse. Plaintiff did not allege that Jorgensen committed any act of sexual
abuse after she told Ruhl about the sexual abuse.
       Rather, plaintiff sues Church and Ruhl for Ruhl’s affirmative conduct in what
plaintiff calls “secondary victimization” and “betrayal trauma.” Although the complaint
alleges defendants fostered reverence to church authority and failed to give defensive
training to students, the complaint specifically alleged the “secondary victimization” and
“betrayal trauma” were acts subsequent to her report that she was molested. These are
allegations of mere negligence, not childhood sexual abuse. Such allegations are beyond
the scope of third party liability under the plain language of section 340.1. Plaintiff
presents no authority or reasoning to depart from the plain language.
       Thus, section 340.1 does not apply. Plaintiff’s lawsuit is governed by the two-year
limitations period of section 335.1, tolled during her minority (§ 352). All acts alleged
against defendants occurred before plaintiff reached the age of majority (18) in April

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2006. Thus, the two-year limitations period began to run in April 2006, and expired in
April 2008. Plaintiff filed her complaint on December 10, 2010.
       The lawsuit is untimely.

                                             III

               Common Law Delayed Discovery Doctrine Does Not Apply

       It is not clear whether plaintiff on appeal invokes the common law doctrine of
delayed discovery to extend section 335.1’s two-year limitations period. She did raise
the point at the hearing on the demurrer. To the extent she means to raise it on appeal, it
does not save her lawsuit.
       Under the common law delayed 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. (Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 397-398.)
       Here, plaintiff alleged she did not realize Church and Ruhl were a cause of her
psychological problems until she started therapy in 2010. However, plaintiff should have
suspected that Ruhl did something wrong from his acts as alleged in the complaint, e.g.,
that he accused her of lying, made her repeat what happened in front of her parents and
Jorgensen, threatened her not to tell anyone else, and expelled her in retaliation for
reporting the molestation. Moreover, the theory -- that plaintiff was unaware adult
psychological injuries were caused by childhood abuse -- was not accepted under the
common law as a ground for application of the delayed discovery rule. (Quarry, supra,
53 Cal.4th at pp. 961, fn. 5, & 984.) The Supreme Court also concluded common law
delayed discovery principles do not survive in parallel with the very specific provisions
of section 340.1. (Id. at pp. 983-984.)
       The common law doctrine of delayed discovery has no place here.




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                                              IV

                                     Equitable Estoppel

       We consider plaintiff’s equitable estoppel argument despite defendants’ view that
she forfeited it by failing to raise it in the trial court. (§ 472c, subd. (a) [“When any court
makes an order sustaining a demurrer without leave to amend the question as to whether
or not such court abused its discretion in making such an order is open on appeal even
though no request to amend such pleading was made”]; Connerly v. State of California
(2014) 229 Cal.App.4th 457, 460 [plaintiff may argue new theory on appeal from
demurrer but must indicate how complaint can be amended to encompass new theory].)
       Plaintiff fails to show any basis for equitable estoppel. The doctrine of equitable
estoppel is “ ‘founded on concepts of equity and fair dealing. It provides that a person
may not deny the existence of a state of facts if he intentionally led another to believe a
particular circumstance to be true and to rely upon such belief to his detriment. The
elements of the doctrine are that (1) the party to be estopped must be apprised of the
facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party
asserting the estoppel has a right to believe it was so intended; (3) the other party must be
ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.’ ”
(City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279.)
       The complaint does not allege these elements, particularly the last three, and
plaintiff on appeal does not even try to claim she can amend to allege them. She cites
Christopher P. v. Mojave Unified School Dist. (1993) 19 Cal.App.4th 165, which held a
teacher’s directive to his child victim, not to tell anyone of the molestation, was a
sufficient inducement of delay to equitably estop the defendant from asserting the statute
of limitations. (Id. at pp. 170-173 [remand for factual determinations].)
       Plaintiff claims her second amended complaint sufficed for equitable estoppel
because it alleged the Church and Ruhl were in positions of supervision and guidance


                                              12
over plaintiff; Ruhl accused her of lying and threatened her not to disclose the
molestation to others and, when he thought she had done so, he expelled her; and “[a]s if
to increase his authority over Plaintiff” Ruhl expelled her a second time weeks before
graduation in alleged retaliation for reporting the molestation. None of this prevented
plaintiff from filing a timely lawsuit, and there is no allegation that plaintiff refrained
from filing suit in reliance on anything Church or Ruhl did or did not do.
       Plaintiff’s appellate brief says that, while she did report the molestation, “she did
not comprehend the subtleties of Ruhl’s conduct on her. Ruhl told her not to disclose
Jorgensen’s conduct. Ruhl occupied a place of great authority over her both as her school
principal and as her pastor. Not until she left home and traveled abroad was she free to
see the event through a different perspective. But only . . . through therapy, did she come
to realize the harm in the betrayal and oppression of [the Church] as exhibited in the
person of Ruhl.”
       This is a delayed discovery argument, which we have already rejected, not an
equitable estoppel argument.
       Plaintiff fails to show any basis for equitable estoppel.
       We conclude the trial court properly sustained the demurrer to the second
amended complaint without leave to amend.




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                                       DISPOSITION

       The judgment of dismissal is affirmed. Church and Ruhl shall recover their costs
on appeal. (Cal. Rules of Court, rule 8.278(a).)



                                                     HULL                  , J.



We concur:



      RAYE                  , P. J.



      MAURO                 , J.




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