Mary D., Plaintiff and Appellant, v. John D., Defendant and Respondent.

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Court of Appeal, Sixth District, California.

Mary D., Plaintiff and Appellant, v. John D., Defendant and Respondent.

No. H003404.

Decided: November 30, 1989

Law Office of Mary R. Williams, Oakland, Law Office of Shari L. Karney, Encino, for plaintiff and appellant. Dale E. Barnes, Jr., Cynthia G. Goldstein, McCutchen, Doyle, Brown & Enersen, Mary C. Dunlap, San Francisco, Janet M. Koehn, Stenzel, Koehn & Howard, Ventura, for amicus curiae. Gail Y. Norton, Lisa D. Lorea, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, for defendant and respondent.

Plaintiff (Mary D.) brought this action for psychological injuries suffered allegedly caused by sexual abuse by her father (defendant John D.) when she was a child.   She claimed that the abuse occurred when she was five years old and younger, and brought the complaint when she was 24 years of age.   The trial court granted summary judgment for defendant based on the statute of limitations.   Plaintiff appeals, contending that the trial court should have found the existence of a triable issue of fact as to whether the delayed discovery doctrine 1 tolls the statute here, making the action timely.

This case presents two issues:  First, does the delayed discovery doctrine toll the statute of limitations for sexual abuse of a child (Code Civ.Proc., § 340.1) in a case where the victim alleges that she repressed her memories of the events while still a child and retained no conscious memory of the acts of sexual abuse until a time beyond the limitations period?   Second, assuming that it does, is plaintiff's assertion that she repressed the events until a recent time, unsupported by any expert opinion evidence, sufficient on a motion for summary judgment to raise a triable issue of fact as to whether such psychological repression occurred?

For reasons we shall state, we hold that the period of limitations is tolled when the child victim of alleged sexual abuse psychologically represses all memory of the acts of abuse while she is still a minor and does not remember those acts until a date after attaining majority, which date will constitute the time of accrual of the cause of action.   We therefore hold that because plaintiffs' complaint adequately pleads facts which, if established by competent evidence, would permit application of the delayed discovery doctrine in this case, which facts were not negated by defendant's motion for summary judgment, the judgment must be reversed.


Plaintiff was born on March 15, 1962.   On May 29, 1986, when she was 24 years old, she filed a complaint alleging that defendant is her natural father and that he sexually molested her from her infancy until she was approximately five years old.   The complaint further alleges that the acts of abuse were committed against her will and without her consent;  that they were accomplished by dominance and duress on defendant's part;  that defendant committed the acts in secret and accompanied by implicit and explicit directions never to tell others about the acts;  that the very nature of the acts and the secrecy and duress by which they were accomplished, coupled with the relationship of dependency and trust between plaintiff and defendant, caused plaintiff to develop various psychological mechanisms including but not limited to denial, repression, and disassociation from the experiences.   It is further alleged that at the time of the acts, plaintiff was unable to know the existence or nature of the injuries which the conduct caused, and the psychological mechanisms of denial and repression caused by these acts caused plaintiff to be unable to become aware of the existence or nature of the injuries.   These mechanisms, the allegations continue, operated to preclude plaintiff from becoming aware of her injuries and their probable causal connection to defendant's acts until on or after approximately June 1, 1985, (approximately one year before the filing of the complaint).

The complaint also alleges that before June 1, 1985, plaintiff was not aware that mental and emotional disturbances and distress from which she suffered were causally connected to defendant's acts of sexual molestation, nor had she any informed diagnosis of the nature of her injuries and their causal connection to defendant's acts of sexual molestation.   The complaint describes the sexual acts allegedly committed by defendant with plaintiff and plaintiff's injuries and damages, including mental and emotional health problems since childhood, low self esteem, distrust of people, self-destructive behavior, alcohol and drug abuse, sexual promiscuity, suicidal tendencies and attempts, and related injuries.

Defendant by affirmative defense in his answer and by motion for summary judgment raised the bar of the statute of limitations set forth in Code of Civil Procedure section 340.1, which states that an action for injury or illness based upon alleged incest must be brought no later than three years after the injury or illness.   Defendant conceded that because plaintiff was a minor at the time of alleged injury, the statute was tolled until her eighteenth birthday.  (Code Civ.Proc., § 352, subd. (a);  see also Colleen L. v. Howard M. (1989) 209 Cal.App.3d 542, 546, 257 Cal.Rptr. 263.)   However, defendant argued that the complaint should have been filed no later than three years following plaintiff's eighteenth birthday, i.e., March 15, 1983.   Since it was not filed until May 1986, defendant claimed that it was three years too late and therefore barred.

In response to the motion for summary judgment, plaintiff argued in her points and authorities (but presented no competent evidence) that children who are victims of incest often repress their memories of these events until many years later.2  She also offered her declaration, stating that she began for the first time in June of 1985, when she was participating in group therapy sessions, to have memories of having been sexually abused by her father.   In particular, she states that “[p]rior to June of 1985, I had had no memories of my father's sexual abuse, and no knowledge that I had been sexually abused by him.   Before June of 1985, I did not have any knowledge that any of my psychological problems were causally related to this earlier sexual abuse.”   The declaration further alleges that in June 1985 plaintiff began to have memories of being manually penetrated and masturbated by her father when she was an infant and when she was about two or three years old, and that since June 1985 she has had other memories of molestation when she was between two and five years old.   Plaintiff also states that her therapist has informed her that many of her psychological problems are causally connected to this abuse and that she had repressed her awareness of the abuse and disassociated from it as a child as a natural psychological response.

Plaintiff also attached to her opposition to summary judgment copies of her answers to defendant's interrogatories.   These answers contain plaintiff's descriptions of what she remembers of the alleged molestation incidents.   Plaintiff states she has had memories of these incidents since the summer of 1985.   She also states that she has been in therapy since November 1984, and that the memories began to come to her during therapy beginning in June 1985.

Plaintiff did not offer any expert declarations or affidavits concerning her alleged repression of her memories of the acts of incest.


I. Is the Delayed Discovery Doctrine Applicable in a Case of Repressed Memory?

 This court has held that the delayed discovery doctrine does not apply to toll the statute of limitations for assault and battery and infliction of emotional distress, where the plaintiff alleges that she remembers childhood sexual abuse but only recently became aware of the “later serious and ongoing injuries that have plagued her” as a result of such abuse.  (DeRose v. Carswell, supra, 196 Cal.App.3d 1011, 1019, 1021, 242 Cal.Rptr. 368.)   The basis for the holding in DeRose was that the delayed discovery doctrine does not apply to a plaintiff who has discovered all the facts essential to her cause of action and who has suffered cognizable harm beyond the limitations period.  (Id. at p. 1021, 242 Cal.Rptr. 368.)   The plaintiff in DeRose was actually aware of the facts necessary to state causes of action for assault and battery and infliction of emotional distress during the entire limitations period.3  (Ibid.)   That plaintiff was not aware of the connection between those harms and her later emotional injuries, but we concluded that lack of such knowledge did not toll the statute.  (Ibid.)  We held that as a matter of law an assault constitutes cognizable harm, and since the plaintiff was aware of the assaults the period of limitations began to run at that time [tolled only until plaintiff attained majority].  (Id. at p. 1018, 242 Cal.Rptr. 368.)   We said the mere fact that some of the consequences of such abuse may have been delayed did not extend the statutory period:  “For us to hold that no cause of action accrued until 13 years after the assault would suggest, incorrectly, that a victim of sexual assault cannot sue unless and until there are delayed consequences.”  (Ibid.)

Code of Civil Procedure section 340.1 is more recent than the statute of limitations applicable to the complaint in DeRose.  (Code Civ.Proc., § 340, subd. (3).)  At the time of the DeRose decision, there was no specific statute of limitations for childhood sexual abuse, and the plaintiff sued for assault and battery and infliction of emotional injury rather than for the specific tort of incest alleged here.   However, we expressly stated in DeRose that the result would be the same under the newly enacted specific statute, section 340.1, as under the statute applied in DeRose:  “The new statute did not change in any way the prerequisites for applying the discovery rule.”  (DeRose, supra, 196 Cal.App.3d at p. 1020, 242 Cal.Rptr. 368.)

In DeRose we declined to address the situation where, as here, a plaintiff alleges that she repressed the memories of the sexual assaults until a time within the period of limitations.  (196 Cal.App.3d at page 1018, 242 Cal.Rptr. 368.)   We pointed out that a plaintiff could not logically be charged with awareness of her harm if she were not aware of the assaults themselves.  (Ibid.)  But for a plaintiff to say that she does not remember the acts of assault is not the same as saying she was never aware of those acts.  DeRose did not present the issue we must resolve here, which is whether psychological repression, a form of forgetting, is the equivalent of lack of awareness for purposes of applying the delayed discovery doctrine.

Code of Civil Procedure section 340.1 contains the following language:  “Nothing in this bill [sic] is intended to preclude the courts from applying delayed discovery exceptions to the accrual of a cause of action for sexual molestation of a minor.”  (§ 340.1, subd. (d).)  Plaintiff argues that this language is determinative of this case, indicating a legislative intent to permit tolling of the statute in cases such as this.   We disagree;  this language permits application of the doctrine in such cases, but neither mandates such application nor defines the requisites of the doctrine.   At best, it shows a legislative intent to prevent an interpretation of the statute which would preclude use of the doctrine.   The statute thus preserves the status quo, leaving to the courts the task of applying the equitable doctrine of delayed discovery.

A spate of recent cases have reached differing results on application of the delayed discovery doctrine to cases of childhood sexual abuse.   A recent federal case adopts a convenient rubric for describing the two basic types of cases which have reached the courts:  in “Type 1” cases, the plaintiff claims she knew about the sexual assaults at or before majority but was unaware that they had caused other physical and psychological problems;  in “Type 2” cases, the plaintiff claims that due to the trauma of the experience she repressed her memories of the abuse and had no recollection or knowledge of the sexual abuse until shortly before she filed suit.   (Johnson v. Johnson (N.D.Ill.1988) 701 F.Supp. 1363, 1367.)

Like the case at bench, Johnson was a Type 2 case.   In Johnson, the plaintiff's claim that she had no memory of the events until a time shortly before filing suit was supported by an affidavit of her therapist reiterating that point.  (701 F.Supp. at p. 1370.)   The court held that under Illinois law the delayed discovery doctrine applies to such a case.  (Ibid.)  The court reached this result because of its perception that Illinois law applies the doctrine on a case-by-case basis taking equitable considerations into account more strongly than problems of proof.  (Id. at pp. 1369–1370.)   The opinion also pointed out that incest is a crime in Illinois, but since the same could be said of many tortious acts, that observation adds little to the opinion.

As the decision in Johnson noted, the California Court of Appeal and the Montana Supreme Court have declined to apply delayed discovery principles to Type 1 cases where the plaintiff is aware of the acts, and have reserved the issue of its application in Type 2 cases.  (Johnson v. Johnson, supra, 701 F.Supp. at p. 1367, citing DeRose v. Carswell, supra, 196 Cal.App.3d 1011, 242 Cal.Rptr. 368 and E.W. v. D.C.H. (Mont.1988) 754 P.2d 817.)

The Supreme Court of Washington decided that the delayed discovery doctrine does not apply to either Type 1 or Type 2 cases.  (Tyson v. Tyson (1986), 107 Wash.2d 72, 727 P.2d 226.)   That court expressed concern not only that such cases are stale claims, with attendant risk of loss of evidence and fading memories, but also that both the claim of childhood abuse and the claim of repressed memory are in most cases purely subjective and not supportable by objective, verifiable evidence.  (Id. 727 P.2d at pp. 228–229.)   The Tyson court observed that “[p]sychology and psychiatry are imprecise disciplines” and thus “[t]he fact that plaintiff asserts she discovered the wrongful acts through psychological therapy does not validate their occurrence.”  (Id. 727 P.2d at p. 229.)   The majority opinion relied heavily upon a law review article which cast doubt on the ability of the psychotherapist to ascertain historical truth.  (Id. 727 P.2d at p. 229, citing Wesson, Historical Truth, Narrative Truth, and Expert Testimony (1985) 60 Wash.L.Rev. 331, 338.)   The court distinguished other applications of the delayed discovery rule as cases in which “the objective nature of the evidence makes it substantially certain that the facts can be fairly determined even though considerable time has passed since the alleged events occurred.”  (Ibid.)  Examples given include medical malpractice actions arising from the presence of foreign substances left in the body;  other objectively verifiable forms of malpractice;  and asbestosis cases.   (Id. 727 P.2d at p. 228.)   These examples, as our opinion in DeRose observes, are also typical of California precedent which has applied the doctrine.  (DeRose, supra, 196 Cal.App.3d at p. 1017, 242 Cal.Rptr. 368.)

As Johnson, supra, acknowledges, the result in Tyson has been superseded by statute applying the doctrine of delayed discovery to such cases;  (See Johnson v. Johnson, supra, 701 F.Supp. at p. 1367;  Wash.Rev.Code ch. 144, S.S.B. No. 6305, amending RCW 4.16.350 and adding a new section to RCW 4.16 RCW (1988)) and the Wisconsin Supreme Court has permitted the application of the doctrine to both types of cases.  (Hammer v. Hammer (App.1987), 142 Wis.2d 257, 418 N.W.2d 23, 25.)

A Michigan case in which a former high school student sued a teacher for damages resulting from a sexual relationship held that the delayed discovery doctrine would toll the statute of limitations if the student could demonstrate a valid claim that she had psychologically repressed her memory of the facts and there was corroboration that a sexual assault had in fact occurred.   (Meiers–Post v. Schafer (1988), 170 Mich.App. 174, 427 N.W.2d 606, 607.)   The court said that its rule strikes a fair balance between a concern for fairness to the victim who genuinely does not remember the tortious acts and fairness to the defendant who may have difficulty defending a stale claim.  (Id. 427 N.W.2d at p. 610.)   In the Meiers–Post case, the claim of assault was supported by affidavits of two doctors and of the plaintiff's counselor, and in addition, the defendant admitted having sexual relations with plaintiff.   The doctors stated that the alleged phenomenon of repression was a likely possibility, and the therapist averred that the symptoms she had observed in the plaintiff were consistent with repression of the memories followed by their later revival in response to a situation which resembled the original trauma (i.e. a television show on sexual abuse viewed by the plaintiff).  (Id. 427 N.W.2d at pp. 607–608.)   In addition, the court stressed that the defendant had admitted having a sexual relationship with the plaintiff, and that “the defendant's admissions cure all [the] concerns [of the Tyson court].”  (Id. 427 N.W.2d at p. 610.)

Although reversing a summary judgment for the defendant, the court in Meiers–Post v. Schafer did not remand for trial, but rather sent the matter back for further proceedings on the motion, to be fully supported by additional legal and psychiatric authority.  (427 N.W.2d at p. 610.)   The court believed that further factual development was needed and reserved judgment whether summary judgment ultimately would be appropriate.  (Ibid.)

With the exception of Tyson, which has since been abrogated by legislation, all of the published decisions we have found apply the doctrine of delayed discovery in Type 2 cases where repression is alleged.   We did not decide the issue in DeRose and it is one of first impression in California.

Plaintiff here does not allege that she was unaware of the acts of abuse when they were committed;  rather she says that she has “repressed” those memories, meaning that she stopped remembering the events at some time in her childhood and then rediscovered those memories at a time within the period of limitations.   Neither the complaint nor her declaration precisely pinpoints the time of loss of the memories;  she does, however, say that revival occurred in June 1985, during therapy.   In her declaration she says that “In June of 1985 I began for the first time to have memories of having been sexually abused by my father when I was a very young child.”   She goes on to describe her memories of those assaults.   She does not say in what way and at what time the memories faded from her consciousness.

The trial court record leaves much to be desired as to a precise description of the mental phenomenon with which we deal.   Ambiguity in the complaint and plaintiff's declaration exacerbates the difficulty of our task in determining whether this is truly a case of delayed discovery, and we do not have the benefit of an expert declaration purporting to describe the mental phenomenon which has occurred here.4  We note that in every case we have cited which applies the delayed discovery doctrine in a Type 2 case, there has been at least one psychiatric or psychological affidavit corroborating the claim of repressed memory.   Giving the declaration which we do have the benefit of every doubt, it is fairly read as saying not that plaintiff has been delayed in discovering her injury, but that she repressed her contemporaneous awareness of the assaults against her and then later recovered those buried memories.

We are called upon to decide upon the relative importance of, on one hand, a defendant's right to be free from stale claims, which are difficult to defend and sometimes rest entirely on subjective evidence, and on the other hand, a plaintiff's right to seek redress for an outrageous violation against her which she has allegedly repressed until recently, through no fault of her own and as a direct result of the alleged abuse.   In our mind, the deciding factor ought to be whether the repression occurred before the plaintiff was of age and then continued until a recent time.   Under those circumstances, it would be most unfair to the plaintiff not to toll the statute.   Accrual of a minor's cause of action is postponed until majority partly because it is expected that she is not in a position to assert her rights before that time.   No more can she assert her rights if, when she reaches majority, she is wholly unaware of the facts constituting her cause of action because of the operation of a psychological mechanism which is directly caused by alleged tortious acts.   Accordingly, we conclude that the doctrine of delayed discovery may be applied in a case where plaintiff can establish lack of memory of tortious acts due to psychological repression which took place before plaintiff attained the age of majority, and which caused plaintiff to forget the facts of the acts of abuse until a date subsequent to which the complaint is timely filed.

A principled argument can be made for the approach of the Michigan court requiring independent and objective corroboration that abuse has occurred before the delayed discovery doctrine may be invoked.   We also take note of the concerns raised by amici curiae with respect to the long-term psychological effects of childhood sexual abuse and the potential policy implications of those concerns.   However, it is not our proper role as an intermediate appellate court to articulate special requirements of proof in particular tort cases, nor are we inclined to accept the invitation of amici to reconsider our holding in DeRose and use this case as a vehicle for extending the delayed discovery doctrine in California to Type 1 cases.   Such changes in the law, if appropriate, should receive thorough consideration through the legislative process.

II. Has Plaintiff Alleged Repression Sufficiently to Survive a Motion for Summary Judgment?

 The main thrust of defendant's argument, both below and in his brief here, is that plaintiff has provided no competent evidence sufficient to raise a triable issue of fact as to whether delayed discovery is present in this case.   As we have noted, in all of the cases discussed above applying the delayed discovery doctrine, the plaintiff's claim of repression was supported by affidavits of mental health experts.  (Johnson v. Johnson, supra, 701 F.Supp. 1363;  Meiers–Post v. Schafer, supra, 427 N.W.2d 606;  Hammer v. Hammer, supra, 418 N.W.2d 23.)  (Indeed, the Meiers–Post decision additionally made corroboration a prerequisite for applying the doctrine.)   And a prime concern of the leading case which declined to apply the doctrine was the problem of determining objectively what has happened many years ago and whether repression has truly occurred when all of the evidence is subjective, and, to make matters worse, consists of the testimony of one with a demonstrably faulty memory. (See Tyson v. Tyson, supra, 727 P.2d 226.)

Defendant contends that when summary judgment is sought based on an affirmative defense (such as the statute of limitations), the plaintiff, to resist summary judgment, must show by her affidavits that she has sufficient proof of the matters alleged to raise a question of fact in regard thereto.   (Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, 125, 225 Cal.Rptr. 359;  Hayward Union, etc., School Dist. v. Madrid (1965) 234 Cal.App.2d 100, 120, 44 Cal.Rptr. 268.)   This contention, however, is incorrect in the context of this case, and the authorities cited by defendant are distinguishable.   While in Hoffman, supra, plaintiff was required to produce evidence because defendant had raised a complete affirmative defense which was not put in issue by the allegations of the complaint, plaintiff here clearly anticipated defendant's assertion of the statute of limitations by pleading facts constituting delayed discovery.   The applicable rule thus is stated not in Hoffman but in Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 177 Cal.Rptr. 445, which holds as follows:  “If, as in this case, the plaintiff pleads several theories or anticipates affirmative defenses by a show of excusing events or conditions, the challenge to the opponent is made by the complaint, requiring the moving defendant to affirmatively react to each theory and excusing or justifying event, or condition which supports a theory, if the motion is to be successful.   The moving defendant whose declarations omit facts as to any such theory or its qualifying excuse or justification permits that portion of the complaint to be unchallenged.   In that event the plaintiff properly uses his own complaint.   He does so, not to controvert the moving party's declaration, or in lieu of one for himself, but rather to show that certain facts or theories remain unchallenged.”  (Id. at p. 639, 177 Cal.Rptr. 445;  see also Tresemer v. Barke (1978) 86 Cal.App.3d 656, 665, 150 Cal.Rptr. 384, original italics.)

Defendant's evidence in support of his motion for summary judgment consisted entirely of proof of plaintiff's date of birth.   While this evidence obviously established a statute of limitations defense, it just as obviously did not negate plaintiff's theory of delayed discovery.   Because the allegations of the complaint adequately state a claim of delayed discovery within the parameters we have discussed here, the motion for summary judgment should have been denied.

 In light of our previous discussion, we note parenthetically that were this case in a procedural posture which required plaintiff to present evidence, opinions as to the existence or cause of specific psychological processes such as repression or disassociation would require competent expert opinion testimony.  (See generally Evid.Code, §§ 800, 801;  see also, In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1118–1119, 200 Cal.Rptr. 789;  People v. Dunnahoo (1984) 152 Cal.App.3d 561, 577, 199 Cal.Rptr. 796 [child abuse accommodation syndrome is a proper subject of expert testimony].)   However, we do not at this time suggest how the trial court should rule on any issue concerning the admissibility or competency of such testimony.


The judgment is reversed.   Plaintiff shall have her costs on appeal.



1.   We have previously defined this doctrine as meaning that in cases where injury has been inflicted without perceptible trauma the statute of limitations does not begin to run until plaintiff has discovered, or in the exercise of reasonable diligence should have discovered, all of the facts which are essential to the cause of action.   (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1017, 242 Cal.Rptr. 368 and citations contained therein.)

2.   Plaintiff and amici curiae have requested that we take judicial notice of a growing body of scientific literature which supports this proposition.   We denied this request by order dated April 28, 1988.   However, in light of our disposition of this appeal and the fact that apparently none of this material was presented below, such a request might properly be made in future proceedings in the trial court should it become appropriate.

3.   Because the statute was tolled until she reached majority, plaintiff in DeRose was, as a factual matter, aware of all of the facts essential to her action even before the limitation period began to run.

4.   As noted earlier, plaintiff and amici have sought on appeal to provide a description of the phenomenon generally by asking us to take judicial notice of various scientific studies.

FOGEL, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

AGLIANO, P.J., and COTTLE, J., concur.

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