ELA/legislative update: Claim period extended for childhood abuse after Jan. 1, 2009  

One of the bills signed by Gov. Arnold Schwarzenegger in the final rush of this year's legislative session was Senate Bill 640 by state Sen. Joe Simitian, D-Palo Alto, which deals with claims filed by victims of childhood sexual abuse.

Generally, the Tort Claims Act requires that any claims for damages for death or injury against a public entity, such as a school district or county office of education, be presented to the entity’s governing board within six months of when the injury occurred. SB 640 amends the Tort Claims Act to exempt claims for childhood sexual abuse from that timeline and to instead allow claims to be filed within the timelines and statute of limitations for private entities as specified in the Code of Civil Procedure.

As a result of SB 640, victims of childhood sexual abuse must file their claim against the public entity by their 26th birthday or within three years of the time victims discover or should have discovered that psychological illness or injury that they developed as adults was a result of the abuse. (The bill is prospective, and the exemption applies only to claims arising out of conduct occurring on or after Jan. 1, 2009.) This so-called "delayed discovery" statute of limitations for civil litigation—and now for these tort claims—was put into law by the Legislature in 2003 as a result of the Catholic Church abuse scandal.

SB 640 is a direct result of the California Supreme Court's 2007 decision in Shirk v. Vista Unified School District. In that case, the plaintiff, who was 41 years old, filed a claim against the district asserting that she was currently suffering damage resulting from abuse by a teacher 25 years earlier. The plaintiff alleged that the six-month timeline in the Tort Claims Act was not applicable to her claim; instead, the statute of limitations for civil lawsuits should be applicable, she maintained. However, the court disagreed and held that the extended statute of limitations did not apply to the Tort Claims Act.

CSBA resisted previous attempts to allow claims going back as far as 30 years, arguing that districts and county offices would not have maintained employee or insurance records from so long ago and thus would be unable to produce any evidence to defend against the claim. Districts and county offices should consult with their insurance carrier and/or risk manager to make sure that they have adequate coverage and processes in place regarding investigation and record retention.