JOHN v. OAKLAND UNIFIED SCHOOL DISTRICT (1987)

In this case we determine that where a parent's delayed discovery of a sexual assault on a minor is due to the continuing effect of the assault, the cause of action for the assault does not accrue until the effect of the underlying tort is no longer operative.

This appeal arises from an action against a school district and teacher filed by a student and his parents alleging sexual abuse of the student by the teacher.   The student, John R., and his father appeal from a judgment entered after the granting of a motion for nonsuit at the close of their attorney's opening statement.   The issues presented on appeal involve excuse from failure to file a timely application for leave to file a late claim under the provisions of the California Tort Claims Act (Gov.Code, § 900 et seq.) ¹ where a mentally incapacitated minor's parent is unaware of the minor's injury and the minor's mental incapacity is a result of “child sexual abuse accommodation syndrome”;  delayed accrual of the cause of action;  estoppel of the public entity;  and the school district's liability under the doctrine of respondeat superior determined by the trial court on an earlier demurrer.

We will reject the argument that the running of the claims statute is tolled by a minor's inability to discuss a sexual assault with his parents.   We will conclude, however, that a cause of action for sexual assault of a minor does not accrue until the parents discover, or should discover, the assault where the failure to discover is caused by the continuing effects of the underlying tort.   Because the questions whether the parents' failure to discover the minor's injury was a result of the tort itself and whether such failure was reasonable are factual in nature, we will reverse the judgment to allow appellants the opportunity to present evidence relevant to such factual determination.   We will also reverse, in part, the ruling on demurrer.

Factual and Procedural Background

In early 1981, John R., then 14 years old, was sexually assaulted by his math teacher.   He did not tell his parents about the assault until December 17, 1981.   At a subsequent deposition, his mother stated that she consulted an attorney regarding the matter in December 1981.   Also in December, John's mother contacted the vice-principal of her son's junior high school and reported the incident.   School officials subsequently reported the incident to the police, who contacted John's family in late December.

It was not until May 13, 1982, that John R. through his guardian ad litem filed an application for leave to file a late claim against the school district pursuant to section 911.4.   The attached claim stated that the incident occurred between June 1980 and December 1981.

On July 30, the application was amended to add the parents as claimants.

On August 4, 1982, appellant (by his mother as guardian ad litem) and his parents filed a complaint in superior court against the teacher.

On August 11, 1982, the application to file a late claim was rejected by the school district.

In late August 1982, John R. apparently testified at the teacher's criminal trial that the assault happened in May of 1981.   The parties to this appeal agree that the criminal case was dismissed because the evidence showed that the assault could not have occurred any later than February 1981.²

On December 23, 1982, appellants petitioned the superior court below for relief from the claims statute pursuant to section 945.4 and requested leave to amend the complaint to add the school district as a defendant.   The minor argued that the assault occurred at the end of the 1980–1981 school year and that the 100 days claims period did not begin until December 1981 when he told his parents of the assault.   He also argued that because the teacher threatened him if he told anyone what had happened, the district was thereby estopped from asserting the time limitation of the claims statute.   The parents argued that they should be excused from the claim requirement due to mistake, inadvertence or excusable neglect because the school officials did not advise them of such requirement.   Both the minor and his parents contend that the emotional trauma directly caused by the criminal assault justified the delay.³

On February 8, 1983, the superior court filed its order excusing the minor and his parents from the claim filing procedures and allowing amendment of the complaint.   On the same date, the first amended complaint was filed, with the school district added as a party defendant.

On April 25, 1983, the school district's demurrer was sustained with leave to amend as to several causes of action.

On July 5, 1983, a subsequent demurrer was also sustained with leave to amend.

On October 4, 1983, a third demurrer was sustained without leave to amend as to the first, second, fifth, and seventh causes of action, which pertained to the district's indirect liability for the acts of the teacher under the doctrine of respondeat superior, and a motion to strike the sixth cause of action (negligent infliction of emotional distress) was granted.   Thereafter, the matter proceeded to trial against the teacher on all theories and against the school district limited to a theory of direct liability based on negligent hiring.

On Friday, June 28, 1985, counsel for appellants declared during opening statement that the assault took place in February 1981.   On the basis of that declaration, counsel for defendants moved for a nonsuit arguing noncompliance with the claims statute and related failure to seek relief from the statutory requirement within one year of the stated date.   The following Monday, the trial court made its order reversing the previous order relieving appellants from compliance with the claims statute and ordering a judgment of nonsuit in favor of the school district only.⁴  This appeal ensued.

Discussion 5

Under the relevant statutory scheme, before bringing a lawsuit for personal injuries against a public entity, an injured citizen must present a written claim within 100 days after accrual of the cause of action.  (§ 911.2.)   If a claim is not filed within 100 days, a claimant may apply to the entity for leave to file a late claim. (§ 911.4.)  “The application shall be presented to the public entity ․ within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim․  In computing the one-year period under this subdivision, time during which the person who sustained the alleged injury, damage, or loss is a minor shall be counted, but the time during which he is mentally incapacitated and does not have a guardian or a conservator of his person shall not be counted.”  (§ 911.4, subd. (b).)

If the application is denied, the claimant may then petition the superior court for relief from the claim filing requirements. (§ 946.6.)   The superior court “shall relieve the petitioner” if it finds that the application to the public entity was made within a reasonable time not to exceed the one-year period of section 911.4, subdivision (b), and that the injured person was a minor during the 100–day presentation period;  or that the person was physically or mentally incapacitated, or that the failure to present the claim was “through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes that it would be prejudiced․”  (§ 946.6, subd. (c)(1).)

 “The superior court has broad discretion in granting or denying a petition for relief under section 946.6.  [Citations.]” (Toscano v. County of Los Angeles (1979) 92 Cal.App.3d 775, 782, 155 Cal.Rptr. 146.) However, the court may permit late filing only if the application is filed within a reasonable time, not to exceed one year. (Moyer v. Hook (1970) 10 Cal.App.3d 491, 492, 89 Cal.Rptr. 234.)   The trial court in this case determined that the earlier order had been based upon an incorrect assumption as to what the evidence would show regarding the date of the assault.   The court made an express finding that appellants had failed to seek relief within one year of accrual of their cause of action in February of 1981.

We note that the second time this matter arose was in the context of the nonsuit motion.   An order granting a nonsuit “may be made only when there is no substantial conflict in the evidence.   In ruling on the motion, the court does not consider credibility of witnesses but gives to the evidence of the party against whom it is directed all its legal value, indulges every legitimate inference from such evidence in favor of that party, and disregards conflicting evidence.”  (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 409, p. 412, italics omitted.) Regardless of the appropriate standard of review, it is undisputed that appellants have failed to file within a reasonable time after the injury, not to exceed one year. “[F]iling of a claim no later than one year after the accrual of the cause of action is an absolute requirement and even the mentally incapacitated minor forfeits his right to bring an action against a public entity if he fails to file his claim within the allowed period.  [Citations.]”  (Carr v. State of California (1976) 58 Cal.App.3d 139, 146, 129 Cal.Rptr. 730.)   Thus, unless there is a tolling provision or accrual of the cause of action is delayed, appellants' claim would merit no consideration.  (Rand v. Andreatta (1964) 60 Cal.2d 846, 848–849, 36 Cal.Rptr. 846, 389 P.2d 382;  McLaughlin v. Superior Court (1972) 29 Cal.App.3d 35, 38–40, 105 Cal.Rptr. 384.)

Applicability of the Tolling Provision of Section 911.4

Appellants argue that when a minor's incapacity prevents the parents from filing a claim, the mental incapacity tolling provision of section 911.4, subdivision (b), may be applied to toll the time for filing a late-claim application.  Hernandez v. County of Los Angeles, supra, 42 Cal.3d 1020, 232 Cal.Rptr. 519, 728 P.2d 1154, they argue, does not foreclose this contention because the court there stated only that a minor must generally file a late-claim application within one year.   They further contend that the Hernandez court recognized that the claims statute might be tolled due to mental incapacity if such incapacity had a causal effect on the failure to so comply.   We will conclude that notwithstanding such exception under Hernandez, it does not apply here, where there is no detectable incapacity.

Hernandez involved a claim for profound mental retardation suffered by an infant which resulted from prenatal medical malpractice in a county hospital.   No claim was filed within the 100–day period, but a late-claim application was filed by the mother within one year of the infant's birth.  (Hernandez v. County of Los Angeles, supra, 42 Cal.3d 1020, 1022, 232 Cal.Rptr. 519, 728 P.2d 1154.)   The trial court denied the late-claim application based on the mother's failure to adequately explain the delay in filing.   In a split decision, the court determined that a minor could not invoke the mental incapacity tolling provision of section 911.4, or the excusable neglect qualification of section 946.6, but that relief should have been granted due to the fact of minority and because the parent's delay in filing was not attributable to the minor's lack of diligence.  (Id., at pp. 1027, 1029, 1031, 232 Cal.Rptr. 519, 728 P.2d 1154.)

 Given the legislative scheme, the Hernandez majority concluded that “an injured minor who has parents capable of acting on his behalf may not invoke the tolling provisions of section 911.4, subdivision (b), even if the minor is mentally incapacitated.   A contrary conclusion would mean that in a substantial number of cases in which a child is injured, the time for filing a late-claim application would be extended considerably beyond the one-year period, even though the child's mental incapacity has no realistic effect on the claim-filing process.   In light of the overall legislative purpose, we do not think that the Legislature contemplated that the tolling clause would operate in that fashion.”  (Hernandez v. County of Los Angeles, supra, 42 Cal.3d 1020, 1025–1026, 232 Cal.Rptr. 519, 728 P.2d 1154, fn. omitted, emphasis added.)   Thus, because it is the parent who files a child's claim, the minor's incapacity has no effect on the parent's ability to file the claim.  (Id., at p. 1025, 232 Cal.Rptr. 519, 728 P.2d 1154.)

 Appellants argue that the language of the court leaves the question open where an incapacitated minor does not have a parent capable of acting on his or her behalf.   Assuming, arguendo, the certitude of appellants' argument, we fail to see the applicability of the theory to this case.   The type of mental incapacity that tolls the running of the claims statutes is one that renders a person unable to “attend to her business affairs with the care and diligence expected of persons in average good health”.  (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 475, 58 Cal.Rptr. 249, 426 P.2d 753;  Martin v. City of Madera (1968) 265 Cal.App.2d 76, 81, 70 Cal.Rptr. 908.)   There is no indication in any of the documents filed in the instant action that John R. was ever unable to carry out his normal routine.   The only “incapacity” referred to is his inability to discuss the assault with adults.⁶

To determine that such subjective inability, without any outward manifestation of mental incapacity, tolls the claims statutes would—in effect—create a new limitation period for all cases of child abuse not disclosed to the parents in a timely manner.   We do not believe that the Hernandez court invited such an exception.   Furthermore, if a sexual assault rendered a child “mentally incapacitated” under the Tammen definition, the parent would be charged with a duty of diligence in ascertaining the cause of the incapacity.   We decline to hold that a condition that allows the minor to continue normal daily activities and is completely undetectable by the parent can nonetheless constitute mental incapacity within the meaning of section 911.4, subdivision (b).   If such an exception to the claims statute is desirable as a policy matter, it is for the Legislature to define such mental incapacity and not the courts.

We next turn to appellants' contention regarding delayed accrual of the underlying cause of action.

Delayed Accrual of the Cause of Action

Drawing upon medical malpractice cases by way of analogy, appellants argue for the establishment of a discovery rule in cases of child sexual abuse such as this.   They urge this court to hold that a minor's cause of action for sexual abuse does not accrue until the parent discovers, or reasonably should discover, the fact of the child's injury and the cause.   This result, arguably, would render the late-claim application in this case timely under the one-year limitation for minors.   Delayed accrual of a cause of action operates in cases against public entities to extend the claims period.  (Wall v. Sonora Union High Sch. Dist. (1966) 240 Cal.App.2d 870, 873, 50 Cal.Rptr. 178.)

The argument advanced rests on two assumptions.   First, the delayed discovery rule applies in cases involving intentional torts.   Although we do not believe the rationale for the rule can survive an unconditional incursion into this area, it may be appropriate where the effects of the tort itself are latent or otherwise suppressed.   The second assumption is that the parent's discovery is the relevant factor for purposes of the claims statutes.   We conclude that the parents' knowledge is clearly relevant in this case.

Under section 911.2 the time-clock starts running from the point of accrual of the cause of action.   Such accrual occurs on the date the action would be deemed to accrue if the statute governing claims against non-public entities were applied.  (§ 901.)   A cause of action for personal injury normally accrues on the date of the injury.  (Code Civ.Proc., § 340.5) ⁷  Although the Legislature has specified the length of limitation periods, it has been left to the courts to determine when a cause of action accrues.  (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 191, 98 Cal.Rptr. 837, 491 P.2d 421.)

Of course, application of the delayed discovery rule is not limited to professional malpractice actions.  (See, e.g., Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, 731, 152 Cal.Rptr. 27 [delayed discovery of libel];  Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 315, 132 Cal.Rptr. 860 [invasion of privacy];  Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 991, 120 Cal.Rptr. 312 [skin rash caused by vermin-infested packing materials].)  The rationale for the delayed discovery rule is, however, peculiarly applicable to injuries caused by professional negligence.   Professional malpractice cases involve the use or abuse of highly specialized skills generally unfamiliar to a lay person rendering that person unable to detect culpable misconduct.   Thus, injury is typically inflicted without perceptible trauma and under circumstances in which a reasonable person would not be aware of the injury. (Warrington v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 564, 569–570, 80 Cal.Rptr. 130.)   Often the relationship is of a continuing nature which allows concealment of the malpractice.  (Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d 176, 188–189, 98 Cal.Rptr. 837, 491 P.2d 421;  April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 828–831, 195 Cal.Rptr. 421.)

Similarities between the rationale for the delayed discovery cases and child sexual abuse cases are readily apparent.   The Neel court listed three relevant factors in determining that the delayed discovery rule applied to attorney malpractice.   These factors included the existence of a higher standard of care for attorneys, the possibility of concealment of professional malpractice by reason of inherent technicalities beyond lay recognition or detection, and the attorney's fiduciary obligations of full disclosure.   (Neel, supra, 6 Cal.3d at pp. 187–188, 98 Cal.Rptr. 837, 491 P.2d 421.)

Teachers, while not fiduciaries, are professionals who occupy a special relationship with adolescent students invoking higher obligations.   As earlier contrasted in another context, “The confidential relations existing between attorney and client are in many respects similar to those existing between a teacher and his pupils.”  (Board of Education v. Weiland (1960) 179 Cal.App.2d 808, 812, 4 Cal.Rptr. 286.)   The relationship of teacher to student in a public school system is, in nature, a position of trust.

“A teacher ․ in the public school system is regarded by the public and the pupils in the light of an exemplar, whose words and actions are likely to be followed by the children coming under [his or] her care and protection.”   (Board of Education v. Swan (1953) 41 Cal.2d 546, 552, 261 P.2d 261;  [citation omitted, overruled on other grounds in Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 587–588, fn. 7, 100 Cal.Rptr. 16, 493 P.2d 480];  Board of Trustees v. Stubblefield (1971) 16 Cal.App.3d 820, 824–825, 94 Cal.Rptr. 318.)

The second factor listed in Neel (concealment in technical jargon) is not present. Appellants alleged below, however, that the child's silence was coerced through abuse of the teacher's authority over the child.   Although the analogy for justification of a delayed discovery rule in professional malpractice cases is imperfect, we note that the enumerated factors have not always been uniformly required.  (Manguso v. Oceanside Unified School Dist., supra, 88 Cal.App.3d 725, 731, 152 Cal.Rptr. 27 [justifiable ignorance of the right to sue triggers application of discovery rule]; Allred v. Bekins Wide World Van Services, supra, 45 Cal.App.3d 984, 991, 120 Cal.Rptr. 312 [cause of action for negligent performance of non-professional services accrues on discovery].)

In addition, a factual analogy invoking the delayed discovery exception is found in cases of fraud or abuse of confidential or fiduciary relationships.   (Code Civ.Proc., § 338, subd. 4;  Amen v. Merced County Title Co. (1962) 58 Cal.2d 528, 25 Cal.Rptr. 65, 375 P.2d 33 [fiduciary's nondisclosure of facts constitutes fraud].)  Again, although concededly the analogy is imperfect, a teacher, as alleged in this case, is able to achieve concealment of the sexual assault upon the minor student through abuse of the teacher's authority over the minor.   Although the minor is actually cognizant of (“discovers”) the injury, he or she is effectively prevented from obtaining help, through disclosure, in order to file a claim by reason of the very injury inflicted.   In view of such extraordinary circumstances, it appears just and appropriate to apply the delayed discovery rule triggered by the parent's reasonable discovery of the injury.

A line of cases have held that the parent's knowledge is the relevant factor in determining the time of accrual of a minor's cause of action.  (See, e.g., Young v. Haines (1986) 41 Cal.3d 883, 890, fn. 4, 226 Cal.Rptr. 547, 718 P.2d 909 [medical malpractice at birth—parent's knowledge determines accrual];  Whitfield v. Roth (1974) 10 Cal.3d 874, 112 Cal.Rptr. 540, 519 P.2d 588 [failure to test 10–year-old for brain tumor despite positive diagnosis—mother's reasonable diligence in discovering cause of action established];  Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716, 82 Cal.Rptr. 84 [child's cardiac arrest during surgery—parents' knowledge of injury is relevant factor];  Myers v. Stevenson (1954) 125 Cal.App.2d 399, 270 P.2d 885 [infant's knowledge of medical malpractice at birth is irrelevant].)  The reason for this rule, as this court discussed in Myers, is that an infant's lack of knowledge cannot toll a limitation period since an infant of tender years is unable to understand the injury or its cause.   Because the parent has the burden of bringing suit, it is the parent's knowledge that is the relevant factor.  (Id., at pp. 402–403, 270 P.2d 885.)

 In this case, it is undisputed that the parent had no knowledge of the abuse until December 1981.   Although the minor obviously had such knowledge, the complaint alleges that the minor was threatened by the teacher if he disclosed the assault to his parents.   Thus, where the blameless child understands the injury when it occurs, but delays disclosure to a parent or other responsible adult due to a teacher's threats arising from the sexual assault, the fact of the child's knowledge should not bar suit.   So long as the minor's nondisclosure is a direct result of the precise injury complained of, rather than the minor's own dilatory conduct, the minor's knowledge should not be the relevant factor.   The interests of justice require that a cause of action based on the sexual assault of a minor by his or her teacher is deemed to accrue at the time the parent discovers, or should have discovered, the assault.⁸

Although we are aware of no case discussing delayed accrual of a cause of action for child sexual abuse, it cannot be the law that a public school teacher occupying a position of authority and confidence can molest a minor student and successfully threaten the child long enough to secure the expiration of the applicable limitations period to bar the child's claim.   We conclude, therefore, that it was error to grant the judgment of nonsuit in this action.

Since appellants proffered no evidence on this issue—not surprisingly in view of the court's earlier favorable ruling on this issue—they are entitled to the opportunity to prove that the parents had no knowledge of the assault prior to December 1981, that their lack of discovery was reasonable and a direct result of the underlying tortious activity alleged.⁹

Respondeat Superior

Appellants' final argument challenges the sustaining of a demurrer without leave to amend as to all causes of action against the school district based upon the district's liability under the theory of respondeat superior.  “Under the respondeat superior doctrine, an employer's liability extends to torts of an employee committed within the scope of his employment.  [Citation.]  This includes willful and malicious torts as well as negligence.  [Citation.]”  (Martinez v. Hagopian (1986) 182 Cal.App.3d 1223, 1227, 227 Cal.Rptr. 763.)

“The determination as to whether an employee committed a tort during the course of his employment turns on whether ‘1) the act performed was either required or “incident to his duties” [citation], or 2) the employee's misconduct could be reasonably foreseen by the employer in any event [citations].’  [Citation.]  The employee's actions need only fall within the range of actions covered by either part of this two-pronged test for the employer to be held liable.”  (Martinez, supra, 182 Cal.App.3d at p. 1228, 227 Cal.Rptr. 763.)

Relying on White v. County of Orange (1985) 166 Cal.App.3d 566, 212 Cal.Rptr. 493, appellants argue that the teacher's misconduct occurring within the course and scope of his employment imposes vicarious liability upon the public entity for such misconduct.   In contrast, respondent relies on Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 176 Cal.Rptr. 287 and Milla v. Tamayo (1986) 187 Cal.App.3d 1453, 232 Cal.Rptr. 685, to argue that sexual molestation of students is not a part of a teacher's duties so as to fasten liability upon the employer district.

White involved an action by a woman against a deputy sheriff who kidnapped her while he was on patrol in uniform in a marked patrol car.   In reversing a summary judgment in favor of the county, the court stated that the employer is responsible for acts done during the exercise of the employee's authority.   It is noteworthy that the plaintiff in White claimed she would not have stopped her car had it not been for the deputy's use of his apparent authority by activating the flashing lights of his patrol car.  (White v. County of Orange, supra, 166 Cal.App.3d at pp. 571–572, 212 Cal.Rptr. 493.)

Alma W. involved the sexual molestation of an 11–year-old child by a school custodian in the latter's office.   The court affirmed a judgment on a demurrer in favor of the employer, stating that the employee's actions were neither foreseeable nor an incident of his employment.  White distinguished Alma W. on the basis that the wrongful act did not flow from the exercise of the employee's duties notwithstanding that the assault took place during working hours in the custodian's office.  (White v. County of Orange, supra, 166 Cal.App.3d at p. 571, 212 Cal.Rptr. 493.)

Milla involved a complaint by a 16–year-old girl who was seduced by several of her parish priests.   Citing Alma W., the court stated:  “It would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop of the Roman Catholic Church.”  (Milla v. Tamayo, supra, 187 Cal.App.3d at p. 1461, 232 Cal.Rptr. 685.)   The court concluded that sexual activity with a parishioner was not incidental to priestly duties or reasonably foreseeable as an outgrowth of these duties.   However, the opinion failed to discuss the salient fact that the priests obtained the child's silence by informing her the sex acts were ethically and religiously permissible.  (Id., at pp. 1456–1457, 232 Cal.Rptr. 685.)

We conclude Milla and Alma W. are factually dissimilar from the instant case.   There, neither the custodian nor the priests had any actual authority over their victims and did not accomplish the assaults through the official exercise of their job-related duties.   The distinguishing feature in White is that the assault arose out of the deputy's abuse of his official authority and was, therefore, incident to his duties.   In Alma W., the assault was completely unrelated to the performance of the custodian's duties.   Although Milla falls somewhere between White and Alma W., we conclude that the sexual assaults in Milla did not arise out of the priests' exercise of job-related authority over the plaintiff.

The case at bench is in analytical symmetry with White.   Here, under the charging allegations of the third amended complaint—which we must accept as true for purposes of review (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 919, 167 Cal.Rptr. 831, 616 P.2d 813)—it is alleged that the teacher engaged the child in an officially sanctioned instructional work experience program which involved extracurricular work at the teacher's home.   It was there, while the minor was participating in the program by correcting papers, that the alleged sexual conduct took place.   The teacher explained to the child that the sexual conduct was a part of his role as teacher and was designed to help the student with his problems.   The complaint also alleged that the acts took place solely because of the existence of the relationship of teacher and pupil.

 As in White, the teacher, by virtue of the exercise of his official authority, was able to perpetrate the sexual assault.   That is, through the use of his authority to administer grades, to assign extracurricular work projects, and, significantly, by utilizing the school-approved work experience program, the teacher procured the student's presence in his home facilitating the opportunity for the assault.   In concluding that such pleaded facts would be clearly incident to the teacher's exercise of his official duties, we focus not on whether the school teacher's sexual activity with a student is either “characteristic” or foreseeable, but rather on whether the assault arose out of the exercise of job-created authority over the plaintiff student.   It was, therefore, error to sustain the demurrer as to appellants' respondeat superior theory.¹⁰

The judgment of nonsuit is reversed.   The order filed October 4, 1983, sustaining the demurrer is reversed insofar as it pertains to causes of action based upon the doctrine of respondeat superior.   Appellants are entitled to costs on appeal.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Government Code.

2.   Although the record on appeal does not contain the transcript of the criminal matter, it appears from the briefs submitted to the superior court that the judge presiding at the criminal trial—in dismissing the charges—commented that the incident could not have occurred after February 1981.

3.   We note that the May 1982 application for leave to file a late claim would have been timely if John's cause of action accrued at the end of the 1980–81 school year, as appellant alleged below.

4.   Although contested below, appellants have not challenged on appeal the reconsideration of the previous order granting relief.

5.   Appellants initially claimed that a sexual assault on a minor can induce a type of mental incapacity that results in an inability to reveal or discuss the assault.   Relying on David L. v. County of Riverside (1983) 140 Cal.App.3d 282, 189 Cal.Rptr. 333 and State of California v.Superior Court (1978) 86 Cal.App.3d 475, 150 Cal.Rptr. 308, they argued that the time for filing a claim was tolled by this incapacity until a guardian was appointed.   The subsequent decision of our Supreme Court in Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020, 232 Cal.Rptr. 519, 728 P.2d 1154 expressly disapproved both cases and concluded that generally the tolling provisions of section 911.4 pertaining to mental incapacity do not apply to minors. (Id., at p. 1027, 232 Cal.Rptr. 519, 728 P.2d 1154.)

6.   Appellants have cited medical authorities regarding the existence of a “child sexual abuse accommodation syndrome”.   These authorities indicate that child victims of sexual abuse tend to delay disclosure due to fear of punishment or of a parent's inability to protect them.   Although we recognize the existence of this problem, we do not believe that delayed disclosure to parents, without more, amounts to a mental incapacity.   We note that the evidentiary guidelines for admissibility of child sexual abuse syndrome evidence are currently in the process of being established.  (In re Amber B. (1987) 191 Cal.App.3d 682, 690, fn. 3, 236 Cal.Rptr. 623 [suggesting Kelly-Frye rule would apply to child sexual abuse accommodation syndrome (People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240;  Frye v. United States (D.C.Cir.1923) 293 F. 1013) ];  People v. Gray (1986) 187 Cal.App.3d 213, 231 Cal.Rptr. 658 [expert testimony admissible on issue of credibility where restricted to victims as a class, and not subject to Kelly-Frye ];  People v. Roscoe (1985) 168 Cal.App.3d 1093, 215 Cal.Rptr. 45 [testimony admissible to rehabilitate witness only if restricted to victims as a class];  People v. Willoughby (1985) 164 Cal.App.3d 1054, 210 Cal.Rptr. 880 [testimony of sexual trauma expert inadmissible to prove victim's truthfulness].)

7.   We note that the Legislature, in enacting a new statute extending the limitation period for sexual molestation of a minor by a household or family member from one year to three years, rejected a Senate version of the bill which would have made a longer limitation period applicable to any sexual molestation of a minor.  (Code Civ.Proc., § 340.1;  Assem. Bill No. 1445 (1985–1986 Reg.Sess.) [amended in Senate Mar. 13, 1986].)  The statute, as enacted, provides that “[n]othing in this bill 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.”  (Code Civ.Proc., § 340.1, subd. (d), emphasis added.)   Although this statute is not applicable in this case, it offers some indication of legislative approval of application of the delayed discovery rule in appropriate situations.

8.   Additional support for this conclusion may be found in cases involving duress or undue influence.  (See, e.g., Comment, 25 Santa Clara L.Rev. 191, 200–208.)   In appropriate circumstances, a cause of action does not accrue until the duress or undue influence ceases.“When, as here, the underlying fraud is a continuing wrong, a convincing rationale exists for delaying the running of the statute of limitations.   Just as the statute of limitations does not run against an action based on fraud so long as the fraud remains concealed, so ought the statute to be tolled even after the fraud is discovered, for so long as the sheer economic duress or undue influence embedded in the fraud continues to hold the victim in place.”  (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 788, 157 Cal.Rptr. 392, 598 P.2d 45, original italics;  fn. omitted.)

9.   Of course, the parents must also independently establish justification for the delay in filing their own claim since the statutory requirements differ for adults.

10.   In their reply brief, appellants argue for the first time that the school district is estopped from raising the claims statute because the school district failed to tell the parents of the claim requirement.   Appellants seek to excuse their failure to argue this issue in their opening brief on a theory that Hernandez v. County of Los Angeles, supra, 42 Cal.3d 1020, 232 Cal.Rptr. 519, 728 P.2d 1154, changed the law.   They are mistaken.  Hernandez had no effect on the theory of estoppel, which was neither raised nor discussed in that case.   We decline, therefore, to consider this issue on appeal.  (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 496, pp. 484–485.)

RACANELLI, Presiding Justice.

HOLMDAHL and RUSHING,* JJ., concur.