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Court of Appeal, Sixth District, California.

Maura F. DALY, Plaintiff and Appellant, v. Tommy DERRICK, et al., Defendants and Respondents.

Kit FOUTS, Plaintiff and Appellant, v. Tommy DERRICK, et al., Defendants and Respondents.

Andrea L. MOORE, Plaintiff and Appellant, v. Tommy DERRICK, et al., Defendants and Respondents.

No. H006204.

Decided: May 31, 1991

Mary R. Williams, for plaintiffs and appellants. Robert T. Russell, Vilia M. Dedinas, Mary Haber, Ellen Zalman, Ware & Freidenrich, and Marta E. Vides and, William L. Pritchard, Public Interest Law Firm, as amici curiae on behalf of plaintiffs and appellants. Margaret E. O'Donnell and Nancy B. Bourne, Breon, O'Donnell, Miller, Brown & Dannis, for defendants and respondents Kamprath, Bliss, Palo Alto Unified School Dist. Linda Deacon, Morgan, Allmand, Pennypacker & Deacon, and Michele A. Perussina, McGlynn, McLorg & McDowell, for defendant and respondent Tommy Derrick. Deborah S. Wagner, Beverly Tucker, Charles R. Gustafson, Rosalind D. Wolf and Robert E. Lindquist, California Teachers Ass'n, as amici curiae on behalf of defendants and respondents.

Plaintiffs Maura Daly, Kit Fouts, and Andrea Moore sued Tommy Derrick, seeking recovery for harm they suffered as a result of sexual abuse he allegedly perpetrated in 1977 and 1978 while they were students at the high school where he taught.   Plaintiffs additionally sued the Palo Alto Unified School District (the District), alleging negligent employment of Derrick.   Plaintiffs also sued Chloe Ann Kamprath, Dorothea Hamilton, and Phil Bliss, teachers employed by the District, alleging that they knew of, but failed to report, Derrick's abuse as required by Penal Code section 11161.5.  (See former Pen.Code, § 11161.5 [repealed by Stats.1980, c. 1071, §§ 1–3;  see now Pen.Code, § 11166].)   The trial court granted defendants' motions for summary judgment, ruling that each of plaintiffs' causes of action was barred by applicable statutes of limitations (Gov.Code, § 911.2;  Code Civ.Proc., § 340, subd. (3)) and that the doctrines of delayed discovery and estoppel did not save their claims.   Plaintiffs appeal.   We reverse in part and affirm in part.

Factual Background

The record contains declarations and deposition testimony evidencing the following facts:

1. Maura Daly

Maura was born on August 22, 1962.   In September 1977 she had just turned 15 and was beginning her sophomore year in the Alternative School program at Cubberly High School in Palo Alto.   Before the start of classes, she attended a retreat designed to encourage Alternative School students and teachers to get to know each other.   Derrick, who taught psychology, human sexuality, and social studies, also attended the retreat.

One evening, Derrick and several students were giving each other massages.   As Derrick massaged Maura, he began to touch her in a sexual manner.   His sexual overtures to her continued during the retreat, and she eventually acceded to his request that she orally copulate him.   He impressed on her the need to keep their relationship secret.

Following the retreat, Derrick had sexual contact with Maura after school once every few weeks, either at his home or inside his van.   Although she was happy to be receiving special attention from a teacher whom she liked and admired, she felt uncomfortable with their sexual activities and consequently experienced confusion.   In the spring of her sophomore year, she told Derrick she did not wish to see him any more.   After that he sought no further sexual contact with her.

In the spring of 1979 Maura and several other female students met to discuss Derrick's sexual conduct with students.   An initial meeting was held at Kamprath's home.   A second meeting was held after hours at school.   Derrick, Kamprath, Hamilton, and Bliss attended.   The girls were asked to state what Derrick had done to them.   None made specific accusations.   Maura felt too embarrassed and intimidated to discuss details of Derrick's conduct.   At the end of the meeting the teachers offered a compromise whereby the students would never bring up the subject again and Derrick would no longer teach at the Alternative School.   The girls ultimately agreed to the proposal.

Maura graduated from high school in January 1980 and did not see Derrick again.

In the summer of 1986, when Maura was turning 24, she became involved in a romantic relationship.   Her boyfriend confided that he had been sexually abused as a child and associated the abuse with certain sexual difficulties he was currently having.   Maura was experiencing similar difficulties and wondered if they might be connected to her experience with Derrick.   In November 1986 she began to consult a therapist concerning a number of issues and mentioned that she had been molested by a high school teacher.   Sometime around March 1987 she began to realize how painful and damaging her relationship with Derrick had been for her.

2. Kit Fouts

Kit was born on March 16, 1962.   In the spring of 1977 she was turning 15 and had recently entered the Alternative School program at Cubberly High School.   During the 1977 spring break she participated in a field trip supervised by Derrick.   Derrick and some students travelled to British Columbia in Derrick's van and camped out for several nights.   One night, as Kit slept outdoors on the ground, it began to rain.   Other students awakened Kit and told her to come inside the van.   There, Derrick insisted Kit remove her wet clothes.   To dry her off and warm her, he began to rub her.   His rubbing turned into fondling and caressing.   He licked and sucked her breasts, touched her vaginal area, and orally copulated her.   Twice she told him “no,” but he persisted.   She lay frightened and unresponsive on the floor of the van.   He asked her to perform oral copulation on him.   She complied.   The next day Derrick cautioned her to keep his conduct secret.   She felt embarrassed, ashamed, and disgusted with herself and him.   She told no one about the incident.

Two years later, in the spring of 1979, Kit heard rumors that Derrick was having sexual relationships with students.   She learned that some students knew he had had sexual contact with her.   Hearing about a planned meeting to discuss Derrick's conduct, Kit told Kamprath what had happened during the camping trip.   Kit was concerned that Derrick was doing the same thing to other girls and wanted to stop him.   Kamprath told Kit that she was trying to find the students who had had sexual contact with Derrick so that they could decide what should be done about it.

Kit attended two meetings on the subject of Derrick's conduct.   At the first, Kit described what had happened to her on the camping trip.   At the second, the teachers told the students that if they brought the matter up to the school administration, the reputation of the Alternative School would be ruined and the teachers would probably lose their jobs.   They then asked each of the girls, in Derrick's presence, to tell what had happened.   Each of the girls said Derrick had made them uncomfortable, but provided no details.   When it was Kit's turn to speak, she stated that more had happened to her than just being made to feel uncomfortable, but no one asked her to elaborate.   The teachers proposed that in return for the girls' promise not to bring up the subject in the future, Derrick would transfer to another school.   Kit felt dissatisfied with the proposal.   After the meeting she spoke again with Kamprath to ask for her support.   Kamprath told Kit that if she approached the administration alone, she would not be believed, that people would say she provoked Derrick's conduct and perhaps even enjoyed it.

After speaking with Kamprath, Kit told her mother about what occurred on the camping trip.   Her mother, who was a college counselor, told Kit that if she decided to go to the administration, she would go with her.   However, feeling unable to do so without the support of the other girls who had had sexual contact with Derrick, Kit acquiesced in the teachers' proposal to have Derrick teach at a different school.

After graduating in the spring of 1979, Kit had no further contact with Derrick.   She did not think about the camping trip incident again until she received a letter from Ann Fitzmaurice, Maura Daly's mother, in June 1987.   The letter stated that Maura had recently disclosed Derrick's sexual conduct and was getting therapy for its effects on her.   Kit contacted Maura and other former students who had had sexual contact with Derrick.   As a result of their discussions, Kit sought psychological counseling in August 1987.

3. Andrea Moore

Andrea was born on October 1, 1961.   In the spring of 1978 she was 16 years old and had recently entered the Alternative School program at Cubberly High School.   In April of that year she went on a creative writing field trip with Derrick, Kamprath, and other students, including Maura, spending several days and nights in a cabin near Arcata, California.

One night, after an intense evening of sharing writings and personal feelings and experiences, Andrea sat on the sofa in the cabin's main room, watching the fire.   Other students were settling into their sleeping bags in front of the fire and preparing to go to sleep.   Derrick sat down beside Andrea and put his arm around her.   At first she felt that Derrick was simply continuing the feeling of connectedness the group had enjoyed during the evening.   After several minutes, however, Derrick put his hand up her blouse.   Andrea felt surprised and uncomfortable, but did not know what to do or say, and kept silent.   After several minutes, Derrick attempted to put his hand down her pants.   Embarrassed and concerned that the other students in the room could see what was going on, Andrea got up and walked away.   Though she did not feel that what Derrick had done to her was wrong, she was confused and did not know how to interpret his actions.

About a year later, Andrea was invited to a meeting to discuss Derrick's sexual conduct with students.   She agreed to go, hoping that hearing what other people had experienced and thought would help her understand what to think of her own experience.   At the meeting in defendant Bliss's office, the girls were asked if they had been made uncomfortable by Derrick and if they would like to tell about it.   Each girl said Derrick had made her feel uncomfortable but declined to give details.   One of the teachers proposed that the group agree the matter would be resolved by Derrick ceasing to teach in the Alternative School.   Andrea remembers that all of the girls except Kit seemed to agree to the proposal, but that the teachers ended the meeting without discussing Kit's disagreement.

After the meeting, Andrea discussed the incidents with no one except to mention to her mother, some two years later, that a high school teacher had acted “intrusive” toward her but that the situation had been dealt with at the time.   She did not think about the events again until she received a letter from Maura's mother in June 1987, stating that Maura had recently told her about Derrick's conduct and the meeting with the other teachers and asking Andrea to help get Derrick's credential revoked.

As a result of the letter, Andrea began to recall the incidents and realized that the meeting with the teachers had served only to manipulate the students into believing that the situation had been appropriately “dealt with” by Derrick's agreement to transfer, when in fact his conduct should have been disclosed at that time.   She also began to realize that Derrick's sexual conduct had injured her and sought psychological counseling to deal with it.

Procedural History

On September 2, 1987, plaintiffs filed claims and applications for leave to present late claims with the District.   The District rejected the claims and applications on September 23, 1987.   Plaintiffs filed their complaints on September 15, 1987, and the trial court granted their petitions for relief from the provisions of Government Code section 945.4.

Each complaint alleged eighteen causes of action.   Against Derrick individually, plaintiffs alleged intentional sexual molestation, intentional and negligent infliction of emotional distress, and negligence (first through fourth causes of action).   Against Derrick, Kamprath, Hamilton, and Bliss, plaintiffs alleged negligence, negligence per se, and negligent infliction of emotional distress in their failure to report Derrick's sexual abuse as required by law, as well as intentional infliction of emotional distress in failing to make the required report and in threatening and intimidating plaintiffs (fifth through eighth causes of action).

Against the District, plaintiffs alleged respondeat superior liability for each of the first eight causes of action (ninth through sixteenth causes of action), negligence per se in failing to report Derrick's abuse, and negligent employment of Derrick (seventeenth and eighteenth causes of action).   After the trial court overruled their demurrers, defendants answered the complaints, denying allegations of tortious conduct and raising affirmative defenses including applicable statutes of limitation.   The actions were consolidated for trial.

Defendants thereafter successfully moved for summary judgment.   This appeal followed.

Scope of Review

 On appeal from a summary judgment we must determine whether a triable issue of material fact exists.   In doing so, we bear in mind that summary judgment is a drastic remedy, depriving the losing party of trial on the merits.  (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134.)   Thus, it must be used with caution so that it does not become a substitute for trial.  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   When, as here, summary judgment has been granted in favor of defendants, we must consider whether there is any possibility that plaintiffs may be able to establish their case.   In making this decision we construe strictly defendants' supporting evidence and construe liberally that of plaintiffs.  (Barry v. Turek (1990) 218 Cal.App.3d 1241, 1246, 267 Cal.Rptr. 553.)   Any doubts as to the propriety of granting the motion are resolved in plaintiffs' favor.  (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)


1. Can Plaintiffs Assert Delayed Discovery Principles to Avoid Bar of Statute of Limitations?

In 1977 and 1978, when the molestations allegedly occurred, the statute of limitations applicable to plaintiffs' claims against Derrick for personal injuries was one year.  (Code Civ.Proc., § 340, subd. (3).)  The statute of limitations was tolled for each plaintiff until she reached the age of majority.  (Code Civ.Proc., § 352, subd. (a).)  Thus, Derrick argues, Maura was required to bring her action by August 22, 1980;  Kit, by March 16, 1980;  and Andrea, by October 11, 1979.   As plaintiffs filed their actions on September 15, 1987, Derrick contends the trial court correctly ruled their actions against him to be time-barred.

 Plaintiffs and amici curiae 1 urge that they have presented facts sufficient to raise a triable issue whether their action accrued within the applicable limitations periods under the doctrine of delayed discovery.   A tort action normally accrues, and the limitations period begins to run, upon the occurrence of the last fact essential to the cause of action.  (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 296, 146 Cal.Rptr. 271.)   In personal injury cases, the wrongful act often causes immediate harm.   However, when an injury is inflicted without perceptible trauma, courts have held that the statute does not begin to run until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, all of the facts that are essential to the cause of action.  (Ibid.)

 This concept of delayed discovery has most frequently been applied in cases of medical and legal malpractice (see, e.g., Huysman v. Kirsch (1936) 6 Cal.2d 302, 306–313, 57 P.2d 908 [medical malpractice];  Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 190, 98 Cal.Rptr. 837, 491 P.2d 421 [legal malpractice] ), liability for defective drugs (see, e.g., Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923), and progressive occupational illness (see, e.g., Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 887–889, 159 Cal.Rptr. 113).   It has been applied in a variety of other tort actions, as well as in certain cases arising from contract, especially when the breach does not result in immediately discoverable harm.  (See Evans v. Eckelman (1990) 216 Cal.App.3d 1609, 1613–1614, 265 Cal.Rptr. 605, and cases cited therein.) 2  Whatever the context, the delayed discovery rule applies only when a plaintiff has not discovered all of the facts essential to the cause of action;  conversely, if the plaintiff has discovered all of the essential facts, the rule does not apply.  (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1017, 242 Cal.Rptr. 368.)

In DeRose v. Carswell, this court addressed whether delayed discovery of injury and its causal relation to sexual abuse should toll the statute of limitations.   In DeRose, an adult plaintiff filed suit against her step-grandfather seeking damages arising out of sexual abuse inflicted on her during her minority.   The complaint asserted causes of action for assault, battery, and negligent and intentional infliction of emotional distress.   Plaintiff DeRose alleged that when she was between the ages of four and eleven defendant Carswell committed acts of sexual abuse “ ‘against [her] will and without [her] consent.’ ”   She alleged that she “ ‘felt great fear and acceded to [Carswell's] acts due to her perceptions of his greater size and strength and his ability and intent to carry out his threats of harm.’ ”   She also alleged that she continued to suffer emotional injuries as a result of the sexual abuse.   She alleged that she did not immediately discover the injuries and their cause “ ‘due to the nature of the acts of the defendant, and the psychological mechanisms experienced by [her] to deny, repress and dissociate herself from the underlying events, or to seek therapeutic intervention until within the last six months.’ ”  (Id. at p. 1015, 242 Cal.Rptr. 368.)   This court affirmed the order sustaining Carswell's demurrer without leave to amend, observing that “[a]n assault, ․ which by definition is perceived as unconsented to and offensive, causes harm as a matter of law.”  (Id. at p. 1018, 242 Cal.Rptr. 368.)

Courts in other jurisdictions have reached differing conclusions on this issue.   Some courts conclude that delayed discovery applies when a victim of childhood sexual abuse alleges that the psychological effects of the abuse prevented timely discovery of his or her injuries.   The North Dakota Supreme Court has applied the delayed discovery doctrine when a plaintiff claimed that the psychological effects of the childhood sexual abuse prevented her from “fully understanding” her cause of action during the statutory period.  (Osland v. Osland (N.D.1989) 442 N.W.2d 907, 909.)   A Wisconsin court has likewise recognized delayed discovery in the case of a survivor of child sexual abuse who contended that post-traumatic stress reaction prevented her from understanding or appreciating the abusive nature of her father's acts and from discovering their resultant psychological damage.  (Hammer v. Hammer, (App.1987), 142 Wis.2d 257, 418 N.W.2d 23, 26–27 rev. den. 144 Wis.2d 953, 428 N.W.2d 552 (1988).)   The Iowa Supreme Court has recently held that causes of action for child sexual abuse accrue when the plaintiff discovers or in the exercise of reasonable diligence should discover both the resulting injury and its cause.  (Callahan v. State (Iowa 1990) 464 N.W.2d 268, 273.)   A federal district court, interpreting Illinois law to reach a result foreshadowed in dicta in DeRose, has applied the principle of delayed discovery to the case of a plaintiff who alleged she suppressed all memory of the sexual abuse she suffered as a child until she underwent therapy in her early thirties.  (Johnson v. Johnson (N.D.Ill.1988) 701 F.Supp. 1363, 1370;  see DeRose v. Carswell, supra, 196 Cal.App.3d at pp. 1018–1019, 242 Cal.Rptr. 368.)   A Michigan court, too, has held that the statute of limitations is tolled when the survivor of child sexual abuse psychologically represses the memory of the events and, after the memory is revived, there is corroboration that the abuse actually occurred.  (Meiers–Post v. Schafer (1988) 170 Mich.App. 174, 427 N.W.2d 606, 607–610.)

On the other hand, courts in Montana and Washington have rejected application of delayed discovery principles in actions seeking recovery based on child sexual abuse (E.W. v. D.C.H. (1988) 231 Mont. 481, 754 P.2d 817;  Tyson v. Tyson (1986) 107 Wash.2d 72, 727 P.2d 226), although the Washington legislature overturned that rule by amending the statute of limitations.  (See Wash.Rev.Code, § 4.16.)   A Florida court has gone so far as to hold time-barred a complaint alleging that the plaintiff suffered sexual abuse during childhood and repressed all memory of the abuse until she obtained psychological counseling during adulthood.  (Lindabury v. Lindabury (Fla.App. 3 Dist.1989) 552 So.2d 1117, 1117–1118 cause dismissed, (Fla.1990) 560 So.2d 233.)

The California Legislature has recently amended the statute of limitations governing actions seeking damages for childhood sexual abuse, essentially rejecting the holding in DeRose.  (Stats.1990, c. 1578, pp. 6403–6405.)   Any such action must now be commenced within eight years of the date the plaintiff attains the age of majority or within three years of the date he or she discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever is later.  (Code Civ.Proc., § 340.1, subd. (a).)  This legislative endorsement of delayed discovery principles applies only to actions commenced after January 1, 1991, and so does not govern this case.  (Code Civ.Proc., § 340.1, subd. (k).)

 Plaintiffs urge us to reconsider the holding in DeRose.   They argue that a cause of action for childhood sexual molestation should not accrue until the plaintiff recognizes, or in the exercise of reasonable diligence should recognize, the fact of her injuries and their causal relation to the molestation.   Alternatively, plaintiffs seek to distinguish DeRose.   We next address the latter argument.

Unlike the plaintiff in DeRose, Maura, Kit, and Andrea have not alleged a cause of action for assault and battery, but rather have pleaded the tort of “sexual molestation.”   Derrick responds that sexual molestation is merely another name for assault and battery, and like the latter is unamenable to the delayed discovery doctrine.   We do not agree with him.   As plaintiffs allege it, sexual molestation comprises not only the (sexual) touching that is the gravamen of a battery cause of action, and which in light of the child's age is as a matter of law nonconsensual and harmful, but also the offender's abuse of his status as an adult in a position of authority and trust.   The offender's abuse of the relationship of trust, plaintiffs allege, in turn creates psychological blocking mechanisms that prevent plaintiffs from becoming aware of the psychological injuries that were occurring at the time of the abuse and would in the future continue to develop.   Plaintiffs presented expert testimony and selections from the professional literature supporting the existence of this psychological dynamic, the reality of which defendants do not contest.   The tort of sexual molestation, as alleged in this case, is not simply assault and battery under another label.  (See Evans v. Eckelman, supra, 216 Cal.App.3d at pp. 1617–1619, 265 Cal.Rptr. 605 [reversing order sustaining demurrer without leave to amend in action alleging, inter alia, cause of action for “incestuous abuse;”  court distinguished DeRose, which held that assault causes immediate harm as matter of law, on basis that plaintiffs might be able to allege that childhood sexual abuse caused psychological blocking mechanisms preventing them from immediately recognizing harmfulness of defendant's conduct, and that lack of awareness of harmfulness persisted into plaintiffs' adulthood];  Hammer v. Hammer, supra, 418 N.W.2d at pp. 26–27 [applying discovery rule in action alleging, inter alia, cause of action for “incestuous abuse”].)

 As plaintiffs rightly point out, courts are not powerless to fashion a new tort to fit new facts when the ends of justice so require.  (See Cobbs v. Grant (1972) 8 Cal.3d 229, 239–241, 104 Cal.Rptr. 505, 502 P.2d 1 [recognizing negligence theory in medical malpractice action formerly classed as battery].)   We conclude that plaintiffs have pleaded a tort not subsumed within the traditional categories of assault and battery.  DeRose does not, therefore, immediately dispose of this action.

 Whatever the essence of their claim, however, in order to assert delayed discovery plaintiffs must demonstrate that they timely brought suit after discovering the last fact essential to their causes of action.   (Saliter v. Pierce Brothers Mortuaries, supra, 81 Cal.App.3d at p. 296, 146 Cal.Rptr. 271.)   Knowledge of a defendant's wrongdoing is a prerequisite to accrual of a claim (Evans v. Eckelman, supra, 216 Cal.App.3d at p. 1618, 265 Cal.Rptr. 605), for “[u]nder 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.”  (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110, 245 Cal.Rptr. 658, 751 P.2d 923, fn. omitted.)

 Evans v. Eckelman, supra, analyzed delayed discovery of the wrongfulness of a defendant's conduct in the context of childhood sexual molestation.   In Evans, adult plaintiffs sued their uncle, who had also been their foster father, alleging he had sexually molested them over several years when plaintiffs were between the ages of seven and twelve.   The First District Court of Appeal reversed the trial court's order sustaining defendants' demurrers without leave to amend.   The court held that the delayed discovery rule would apply in the case of a plaintiff who alleged he did not know or have reason to know of the wrongfulness of a defendant's sexual conduct until a time less than three years before he filed his action.  (Evans v. Eckelman, supra, 216 Cal.App.3d at p. 1619, 265 Cal.Rptr. 605.)   The Evans court observed that the nature of the relationship between plaintiff and defendant plays a significant part in courts' application of delayed discovery principles.  (Id. at p. 1615, 265 Cal.Rptr. 605.)  “A fiduciary relationship carries a duty of full disclosure, and application of the discovery rule ‘prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure.’ ”  (Ibid. [quoting Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d 176 at p. 189, 98 Cal.Rptr. 837, 491 P.2d 421].)   A teacher, who stands in loco parentis (Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193, 1196, 228 Cal.Rptr. 776), has a fiduciary or confidential relationship to his or her students and assumes a corresponding duty of disclosure.   As the Evans court reasoned, “a young child has little choice but to repose his or her trust with a parent or parental figure.   When such a person abuses that trust, he commits two wrongs, the first by sexually abusing the child, the second by using the child's dependency and innocence to prevent recognition or revelation of the abuse.   This may be accomplished by enforcing secrecy around the acts or even by teaching the child that the sexual acts are normal or necessary to the relationship.   As in the professional negligence cases, application of the delayed discovery rule would serve to prevent the molester from using the child's ignorance and trust to conceal the primary tort.”   (Evans v. Eckelman, supra, 216 Cal.App.3d at p. 1616, 265 Cal.Rptr. 605.)

 Each plaintiff claims she recognized the wrongfulness of Derrick's conduct only after reaching majority, at a time within the statutory period for filing her action.   Construing plaintiffs' evidence as favorably as possible to them (Barry v. Turek, supra, 218 Cal.App.3d at p. 1243, fn. 1, 267 Cal.Rptr. 553), we conclude that they have presented facts sufficient to raise a triable issue of delayed discovery.   We shall analyze each plaintiff's evidence in turn.3

Maura believed her relationship with Derrick was that of boyfriend and girlfriend.   The relationship was her first experience of romance and love.   Derrick obtained intimacy with Maura not through the use of force or violence, but by taking advantage of his position of trust as her teacher.   He repeatedly told her that she could make her own decision whether to be sexually involved with him, thereby inducing her to believe that she was equally responsible for their relationship.   In fact, however, Maura was overwhelmed by his attentions due to her desire for a replacement for the father she had earlier lost through divorce.   She did not perceive his conduct as wrong in any legally actionable sense;  the only injuries of which she was aware were pain at the distance from her that Derrick maintained at school, jealousy at Derrick's sexual attentions to other students, and from time to time a sense that, rather than being a true friend, he was using her to satisfy his own sexual needs.   Because she never thought of their relationship as wrong, it never occurred to Maura to tell the school administration about it.   She did not initiate the April 1979 meeting with Derrick, Kamprath, Hamilton, and Bliss, but attended because she was invited to do so, without any particular purpose in mind.   After graduating from high school, Maura put out of her mind the incidents involving Derrick.   Only after beginning therapy did she perceive that Derrick's conduct was wrong and had caused her harm.

With these facts, Maura has raised a triable issue whether she perceived or reasonably should have perceived the wrongfulness of Derrick's conduct before entering therapy.   Although Maura at 15 was as a matter of law incapable of consenting to a sexual relationship with Derrick, we do not believe she may properly be charged with knowledge of the wrongfulness of his conduct under circumstances suggesting that that conduct was made possible by his abuse of a position of trust operating on her vulnerability.

In an attempt to negate the existence of a triable issue, defendants cite an excerpt from Maura's 1977 journal in which she labels her relationship with Derrick “unclean” and “unnatural,” as well as her deposition testimony admitting she knew Derrick's insistence on secrecy stemmed from the fact that there was something “vaguely inappropriate” about a high school student being sexually involved with a man twenty years her senior.   These excerpts, they argue, evidence Maura's contemporaneous knowledge of the wrongfulness of Derrick's conduct.   We disagree.   The evidence reflects the existence of a triable issue, not its absence.

Kit did not seek “romantic” involvement with Derrick.   Rather, she endured Derrick's touching of her breasts and vaginal area and then objected, but finally submitted, to his requests for oral copulation.   She lay on the floor of the van “like a stiff board.”   As an instructor in human sexuality, Derrick had taught his students, including Kit, that they had the right to say “no” to unwanted sexual contact.   The inconsistency between what Derrick taught and what he did caused Kit to feel confusion.   In opposition to the motion for summary judgment, Kit presented the declaration of Eliana Gil, Ph.D.   Dr. Gil conducted a clinical interview of Kit.   Based on that interview and on her professional training and experience, she testified that the numbness Kit experienced and the nonresponsiveness and lack of resistance she manifested while Derrick molested her were an example of a phenomenon known as dissociation.   Dissociation is a psychological defense to events that pose a threat to a child's developing sense of self and reality.   When an adult whom a child knows, trusts, and depends on relates to the child in a sexual manner, a conflict or split arises within the child's sense of reality.   In Dr. Gil's view, Derrick's continuing to relate to Kit after the molestation as though nothing of significance had happened created a fundamental confusion in Kit's mind.   Additionally, his message that she needed to keep his conduct a secret made Kit feel she had done something wrong.   Derrick's manipulation of his position of trust and authority caused Kit to internalize the sense that he had wronged her and to develop unconscious guilt and low self-esteem, Dr. Gil declared.

When Kit told other teachers about Derrick's conduct some two years later, their reactions reinforced and enhanced some of the most damaging aspects of the molestation, Dr. Gil testified.   Clinical literature and research on childhood sexual abuse documents the fact that when a child's disclosure of sexual abuse is met with a response that tells the child that to speak about the abuse is dangerous and that she is doing something wrong by bringing it up, the child is sent, even more forcefully than before the disclosure, on a path of internalized guilt and self-blame.   Dr. Gil testified that the teachers handled the revelations of Derrick's sexual behavior by setting up a “confrontational” situation between the students and Derrick, with the teachers as ostensible “mediators.”   Rather than supporting the students, the teachers made the girls feel opposed and disbelieved.   Kit in particular felt betrayed by Kamprath's failure to communicate to the others what Kit had told her about Derrick's conduct.   The effect of Kamprath's acts was to reinforce and enhance Kit's confusion and internalization of self-blame.   Kamprath's extraction of a promise from Kit never to reveal what Derrick had done played upon Kit's codependent behavior to prevent her from seeing that the meeting was engineered not to help the students, but to manipulate them into thinking that the situation was being appropriately handled in secrecy.

On consideration of Dr. Gil's declaration and the other evidence Kit presented in opposition to defendants' motions for summary judgment, we are unable to say that no triable issue exists as to whether Kit knew the wrongfulness of Derrick's conduct more than a year before she filed her complaint.   Dr. Gil's testimony raises the question whether the psychological blocking mechanisms engendered by Derrick's molestation and reinforced by the District defendants' handling of the situation prevented Kit from realizing that it was Derrick, not she, who had done wrong.

Andrea's evidence demonstrates that she initially experienced Derrick's touching as a demonstration of closeness and friendship in the context of their teacher-student relationship.   When he moved his hand under her shirt, she was surprised and did not know how to interpret his action.   She felt discomfort and embarrassment at the realization that others in the room might be aware of what he was doing, but no anger.   She perceived his conduct as sexual, but knew neither what his intentions were nor how to interpret his actions.   Because she liked him, she did not find his touching offensive.   She agreed to attend the April 1979 meeting because at that time she still did not know what to think about Derrick's conduct and wanted to hear what others had to say.   Despite Andrea's testimony regarding her inability to evaluate or judge Derrick's conduct, defendants attempt to equate her discomfort and embarrassment with knowledge of its wrongfulness.   That equation is not supported by the record.   Andrea has raised a triable issue of delayed discovery of the wrongfulness of Derrick's conduct.

The fact that plaintiffs allegedly informed Kamprath, Hamilton, and Bliss of Derrick's sexual conduct at the April 1979 meeting does not negate the existence of this triable issue.   If they were unaware of the wrongfulness of Derrick's conduct before the meeting, we cannot say that the teachers' alleged confrontative approach, minimization of Derrick's behavior, and emphasis on preservation of secrecy enlightened them as a matter of law.

Similarly, the fact that, years after her graduation from high school, Andrea confided in her mother that Derrick had once been “intrusive” toward her but that the situation had been handled at the time, does not necessarily imply an appreciation of the wrongfulness of his actions.   Her belief that the matter had been resolved with Derrick's transfer indicates that she had not yet appreciated the wrongfulness of the District defendants' failure to report his conduct.   The issue of when she knew or reasonably should have known Derrick had wronged her remains for resolution by the trier of fact.

2. Are Causes of Action Against District Defendants Time–Barred?

The District is a public entity (Gov.Code, § 811.2;  Wright v. Compton Unified Sch. Dist. (1975) 46 Cal.App.3d 177, 181–182, 120 Cal.Rptr. 115) and it is undisputed that defendants Kamprath, Hamilton, and Bliss were at all times relevant to this action the District's agents.   It is likewise undisputed that Kamprath, Hamilton, and Bliss have no liability outside the scope of their employment for their failure to file a child abuse report after allegedly learning of Derrick's conduct in April 1979.  (See former Pen.Code, § 11161.5 [repealed by Stats.1980, c. 1071, §§ 1–3;  see now Pen.Code, § 11166].) 4  Therefore, the period within which plaintiffs could bring their actions against the District defendants is limited by the California Tort Claims Act.  (Gov.Code, § 810 et seq.)

When Derrick allegedly had sexual contact with plaintiffs and when plaintiffs filed their complaints, Government Code section 911.2 required a citizen to present a public entity with a written claim not more than 100 days after accrual of a cause of action, or suit was barred.  (Former Gov.Code, § 911.2 [amended by Stats.1987, c. 1201, § 18, and Stats.1987, c. 1208, § 3, to provide for six-month claim period].)   The otherwise automatic tolling provisions of section 352 of the Code of Civil Procedure do not extend the statutory period.  (Code Civ.Proc., § 352, subd. (b).)

 A claimant who fails to present a claim within the statutory period may, within one year of the accrual of the cause of a action, apply to the public entity for leave to file a late claim.  (Gov.Code, § 911.4.)   If the public entity denies the application, the claimant must petition the court for relief from the bar to suit for nonpresentation of a claim.  (Gov.Code, § 946.6, subds. (a), (c).)   The decision to grant a petition for relief rests within the discretion of the trial court, whose determination will not be disturbed on appeal absent abuse of that discretion.  (Greene v. State of California (1990) 222 Cal.App.3d 117, 121, 272 Cal.Rptr. 52.)

 For the purpose of computing the time limit for presentation of a claim, a cause of action accrues on the date on which the cause of action would be deemed to have accrued within the meaning of the statute of limitations that would have applied had there been no requirement that a claim be presented to a public entity.  (Gov.Code, § 901.)   Principles of delayed discovery apply, in an appropriate case, to a public entity as to any other defendant.   Thus, courts have held that a malpractice action against a public hospital accrues when the plaintiff discovers the injury and its negligent cause, or through the exercise of reasonable diligence should have discovered it.  (See Whitfield v. Roth (1974) 10 Cal.3d 874, 885, 112 Cal.Rptr. 540, 519 P.2d 588;  Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716, 722, 82 Cal.Rptr. 84.)

Relying on dicta contained in a footnote in John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 444, fn. 4, 256 Cal.Rptr. 766, 769 P.2d 948, the District defendants contend that delayed discovery has no application to causes of action against a public entity for failure to report abuse and for negligent employment.   They attempt to extract from that footnote, which differentiates estoppel from delayed discovery, more than its author put there.   The plaintiff in John R. filed a late-claim application with the defendant district some 15 months after he was molested by his mathematics teacher.   The court of appeal reversed a nonsuit in favor of the school district, reasoning that because the plaintiff waited ten months before informing his parents of the molestation, a theory of “delayed discovery” supported recognition of an exception to the strict limitations period of the Tort Claims Act.   The court of appeal concluded that the pleaded facts could allow a trier of fact to find the district responsible for the teacher's acts.   This was because the teacher's misconduct, although not within or contemplated by his official duties, was made possible by his use and abuse of official, job-created authority over the student.   The Supreme Court held that the district had no vicarious liability for the molestation committed by its employee.   However, the court concluded that a factual issue existed as to whether the district was estopped to assert as a defense to a cause of action for negligent hiring or supervision the plaintiff's failure to comply with the claims statute.  (Id. at pp. 452–453, 256 Cal.Rptr. 766, 769 P.2d 948.)   The Supreme Court did not address the issue on which this appeal turns—whether the record reflects a triable issue whether plaintiffs were actually and reasonably delayed in discovering the wrongfulness of defendants' conduct—and John R. cannot be read to foreclose an action against a school district and its agents on the facts before us.

We proceed to determine if a triable issue exists as to whether plaintiffs timely presented claims after the accrual of their causes of action against the District defendants.

As we have noted, an applicable limitations period starts to run when the plaintiff learns the last fact essential to the cause of action.  (Saliter v. Pierce Brothers Mortuaries, supra, 81 Cal.App.3d at p. 296, 146 Cal.Rptr. 271.)   Maura has alleged that she became aware of the wrongfulness of Derrick's conduct only after beginning therapy in November 1986.   Since it would be illogical to expect Maura to present a claim for failure to report abuse if she could not recognize the subject conduct as abuse—particularly when the actions of the individual District defendants allegedly contributed to her inability to recognize the wrongfulness of Derrick's conduct—we conclude that her causes of action for failure to report and for negligent employment accrued at the same time as her cause of action for sexual molestation, i.e., sometime after November 1986.

Maura submitted to the District her Application for Leave to Present Late Claim and Claim, and filed her complaint, in September 1987.   Carolyn M. Loper, Maura's treating therapist, testified by declaration that even after beginning therapy in November 1986, Maura did not immediately begin to work on issues related to Derrick's abuse;  it was not until the spring of 1987 that Maura began to remember and disclose details of the abuse.   Ms. Loper also testified that the process of remembering and disclosing at first intensified the guilt and self-blame with which Maura had suffered since the occurrence of the events.   In Ms. Loper's opinion, Maura was incapable, during spring 1987, of taking any action that would have made that part of her history public knowledge;  indeed, premature disclosure would have been psychologically damaging to Maura.   Under these circumstances, we cannot say Maura's delay in presenting her claim was unreasonable as a matter of law.   The trial court acted within its discretion in granting Maura relief from the claims requirements.

Kit has alleged that after her graduation from high school she put these incidents out of her mind and neither thought about them nor told anyone about them until June 1987.   In June 1987 she received a letter from Maura's mother describing Maura's disclosure of Derrick's behavior and her decision to seek counseling for its effects on her.   Kit then got in touch with Maura and several other women who had had sexual contact with Derrick.   As a result of discussing the incidents again, Kit became angry at how the students had been induced to keep the matter secret for so long while Derrick continued to teach in the District.   She also began to wonder if some problems she had been experiencing in a relationship with a boyfriend were connected to the molestation.   Kit decided to seek psychological counseling.   She consulted a counselor in August 1987.   The following month, she presented her application for leave to submit a late claim and filed her complaint.   The District denied her application.   The trial court, however, granted relief.  (Gov.Code, § 911.4.)   Kit appears to have presented her late-claim application within approximately 100 days of the date on which she contends her cause of action accrued.

Andrea has alleged that she first appreciated the wrongfulness of Derrick's behavior in June 1987, after receiving a letter from Maura's mother describing Maura's disclosure of the abuse and the insights she gained through therapy.   Andrea herself entered therapy and began to disclose and work on the feelings of anxiety stemming from Derrick's alleged abuse only on September 18, 1987.   She presented her application for leave to submit a late claim and filed her complaint in September 1987.   The District denied her application, but the trial court granted relief.  (Gov.Code, § 911.4.)   It appears that Andrea presented her late-claim application within 100 days of the date on which she contends her cause of action accrued.   In Andrea's case as in Kit's, the trial court's order granting relief was unnecessary, but did not constitute an abuse of discretion.

3. Can Plaintiffs Prove Injury Resulting From Failure to Report Abuse if No Abuse Occurred After District Defendants Became Aware of Alleged Molestations?

 The individual District defendants, together with amicus curiae on their behalf,5 argue that plaintiffs have suffered no harm by reason of the failure to report Derrick's conduct, since they do not allege any incidents of abuse occurring after the April 1979 meeting at which Kamprath, Hamilton, and Bliss were allegedly informed of Derrick's sexual contacts with them.   Kamprath, Hamilton, and Bliss contend that the only purpose of Penal Code section 11161.5 is to protect minors from physical and sexual abuse, citing the first sentence of subdivision (b) of Penal Code section 11164.   (Pen.Code, § 11164, subd. (b) [enacted by Stats.1987, c. 1444, § 1.5].)

They ignore the second sentence of that subdivision, which states that “[i]n any investigation of suspected child abuse, all persons participating in the investigation of the case shall consider the needs of the child victim and shall do whatever is necessary to prevent psychological harm to the child victim.”  (Pen.Code, § 11164, subd. (b) [emphasis added].)   We do not suggest that defendants should have been guided, in 1979, by a statute enacted some eight years later.   However, we are unpersuaded that the reporting statute as it existed in 1979 served only the limited function defendants assert.   Among the other important effects potentially achieved by the statute is the prevention of long-term psychological damage to the child from abuse that has already occurred, by facilitating intervention and treatment.   Had Kamprath, Hamilton, and Bliss reported Derrick's conduct as they were required to do, plaintiffs might have obtained counseling while still in high school and thereby perhaps avoided some of the adverse emotional consequences of his abuse.

Finally, it merits observation that the reporting statute has never excused compliance with its provisions in cases when a mandated reporter believes the abuse has ceased.   Plaintiffs' cause of action for failure to report is not deficient for lack of an allegation of abuse occurring after April 1979.

4. Is the District Subject to Respondeat Superior Liability for Torts Committed by Derrick?

 In John R., supra, our Supreme Court analyzed the problem of the liability of a school district, under the doctrine of respondeat superior, for the tortious conduct of a teacher in sexually molesting a student.   The court acknowledged the argument that a school district should not be immune from liability when a teacher's molestation of a student directly flows from the exercise of his job-created authority.   However, the court concluded that the rationale underlying the respondeat superior doctrine precluded its application to such a situation.  (John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at pp. 450–452, 256 Cal.Rptr. 766, 769 P.2d 948.)   The court held that although the school district may be held liable if its own negligence is established, it cannot be held vicariously liable for the torts of its employee.  (Id. at p. 441, 256 Cal.Rptr. 766, 769 P.2d 948.)

In this case, plaintiffs' ninth through twelfth causes of action seek to hold the District liable under the doctrine of respondeat superior for Derrick's alleged sexual molestations.  John R. precludes such liability.   Summary judgment was therefore properly granted as to those causes of action.


The policies favoring on one hand unenforceability of stale claims, as reflected in statutes of limitation, and on the other hand allowance of a remedy to survivors of childhood sexual abuse, as reflected in the principle of delayed discovery, stand in inescapable tension.   We are well aware of the problems of proof facing parties in litigation over events that happened more than a decade ago.   We are also conscious of the potentially devastating impact of accusations of sexual molestation or the failure to report it.   Neither these undeniable concerns nor any other policy favoring prompt assertion of claims, however, justifies excepting the category of childhood sexual abuse claims from the rule that a statute of limitation begins to run only when a plaintiff knows or should know of all facts essential to the cause of action (Saliter v. Pierce Brothers Mortuaries, supra, 81 Cal.App.3d at p. 296, 146 Cal.Rptr. 271), including the fact that he or she has been wronged (Evans v. Eckelman, supra, 216 Cal.App.3d at p. 1618, 265 Cal.Rptr. 605).


The judgment entered in favor of defendants in the consolidated actions numbered 638173, 638175, and 638176, brought by plaintiffs Maura F. Daly, Kit Fouts, and Andrea L. Moore respectively, is reversed as to the first through the eighth and the thirteenth through the eighteenth causes of action only, and is otherwise affirmed.   Defendants shall bear the costs of this appeal.


1.   We permitted the California Consortium of Child Abuse Councils (CCCAC), the California Child, Youth, and Family Coalition, California Women Lawyers, San Francisco Women Lawyers Alliance, and the ACLU Foundation of Southern California to file a brief as amici curiae in support of plaintiffs.

2.   In light of the considerable variety of cases recognizing delayed discovery, we are unpersuaded by the District defendants' unsupported contention that it should not apply to causes of action for failure to report and for negligent employment.   Similarly unsupported and unavailing are their arguments that delayed discovery should not apply in cases of nonfamilial sexual molestation and that only “objectively verifiable” injuries, not mere psychological harms, warrant its application.   We discern no principled reason to narrow the doctrine of delayed discovery as defendants urge.

3.   Our analysis makes it unnecessary to address the argument, advanced by amici CCCAC et al., that a failure to apply delayed discovery in this case would deprive plaintiffs of equal protection of the law.

4.   The District defendants acknowledge that there is a factual dispute whether, at the April 1979 meeting, plaintiffs told them that Derrick had had sexual contact with them.   Defendants maintain that plaintiffs merely discussed Derrick's use of sexual terms and innuendo in his teaching, without describing what he had done to them personally.   For the purpose of resolving the limitations issues raised by this appeal, we assume that plaintiffs told the District defendants of Derrick's sexual contact at the April 1979 meeting.

5.   We permitted the California Teachers Association to file a brief as amicus curiae in support of defendants Kamprath, Hamilton, and Bliss.

ELIA, Associate Justice.

PREMO, Acting P.J., and COTTLE, J., concur.