John R. v. Oakland Unified School District

EAGLESON, J.

I concur in the majority’s holding that the defendant school district cannot be held vicariously liable for its teacher’s alleged sexual misconduct. I respectfully dissent, however, from the majority’s additional holding that plaintiffs must be allowed an opportunity to establish the elements of equitable estoppel so as to avoid the claim-filing periods under Government Code sections 911.2 and 911.4, subdivision (b).

A. Equitable estoppel is inconsistent with the rejection of vicarious liability.

I find no merit in the majority’s effort to reconcile its holding that there is no vicarious liability with its holding that the teacher’s alleged threats can be imputed to the district. The two holdings are legally inconsistent. If the district is not vicariously liable for the underlying tort, the district should not be held vicariously liable for threats related to the tort.

Before discussing the inconsistency, it is helpful to explain why the majority imputes the alleged threat to the district. In deciding whether a public entity should be estopped from relying on a claims statute, we have identified four elements that must be shown for estoppel to arise: “(1) the party to be estopped must be apprised of the facts-, (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305 [ 61 *456 Cal.Rptr. 661 , 431 P.2d 245 ], italics added.) The first element is absent in this case. There is no evidence that the district—the party to be estopped— knew of the alleged molestation or threats, and plaintiffs do not contend otherwise. This element can be shown only if the teacher’s alleged threats are imputed to the district. The alleged threats, however, cannot be properly imputed to the district.

In rejecting vicarious liability for the teacher’s alleged sexual misconduct, the majority correctly concludes that, “the connection between the authority conferred on teachers to carry out their instructional duties and the abuse of that authority to indulge in personal, sexual misconduct is simply too attenuated to deem a sexual assault as falling within the range of risks allocable to a teacher’s employer.” (Lead opn. at p. 452, ante, italics added.) If the sexual misconduct itself is too attenuated to impose liability on the district, a threat relating to that misconduct is even more attenuated. The majority’s view, stated more clearly, is that the teacher’s sexual misconduct was so beyond the bounds of his employment that it would be unfair to impute his misconduct to the district, but that his threats relating to the misconduct are sufficiently related to his employment and should be imputed to the district. That conclusion is oxymoronic.

The majority’s implicit justification for its inconsistent holdings is that the district may be independently liable for its own misconduct. That is correct but irrelevant. A threat is conduct. By imputing the teacher’s alleged threat to the district, the majority in effect is holding the district responsible for the teacher’s conduct, not for the district’s own conduct. The flaw in the majority’s analysis is that in order to reach the issue of whether the district is responsible for its own conduct the majority holds the district responsible for the teacher’s conduct. Doing so squarely conflicts with the holding of no vicarious liability.

None of the cases cited by the majority support its reasoning on this issue. Those cases stand for the proposition that a public entity may be estopped from relying on the limitations period of a claims statute when the entity’s agents or employees have prevented the filing of a timely claim. In each of the cited cases, however, there was no suggestion that the agent or employee was not acting in the course and scope of his employment. To the contrary, it is clear from the facts of each case that the employee or agent was acting on behalf of the public entity. (Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353, 355-356 [ 99 Cal.Rptr. 13 , 491 P.2d 805 ] [city clerk misrepresented city’s responsibility for accident]; Rand v. Andreatta (1964) 60 Cal.2d 846, 850 [ 36 Cal.Rptr. 846 , 389 P.2d 382 ] [claims agent advised injured party not to retain counsel; parties stipulated that county driver who caused accident was acting in course and scope of her employment]; *457 Bruce v. Jefferson Union High Sch. Dist. (1962) 210 Cal.App.2d 632, 633 [ 26 Cal.Rptr. 762 ] [school nurse misinformed student as to claims procedure]; Industrial Indem. Co. v. Ind. Acc. Com. (1953) 115 Cal.App.2d 684, 686 [ 252 P.2d 649 ] [insurer’s representative misled accident victim as to status of claim]; Dettamanti v. Lompoc Union School Dist. (1956) 143 Cal.App.2d 715, 722-723 [ 300 P.2d 78 ] [deputy district attorney induced delay in filing claim]; Bertorelli v. City of Tulare (1986) 180 Cal.App.3d 432, 436-437 [ 225 Cal.Rptr. 582 ] [city’s insurance adjuster allegedly caused delay]; see also Driscoll v. City of Los Angeles, supra, 67 Cal.2d 297, 303 [public entity’s employees misadvised pension claimants]; Farrell v. County of Placer (1944) 23 Cal.2d 624, 627 [ 145 P.2d 570 , 153 A.L.R. 323 ] [agent of public entities misled accident victim].)

I have been unable to find a single decision in which a public entity was estopped based on conduct of an employee who was found not to be acting in the course and scope of his employment. The majority’s conclusion that the teacher’s threats can be imputed to the district is a radical departure from well-established law.

B. The minor plaintiff was aware of the true state of facts.

A party seeking to rely on estoppel must show that he was ignorant of the true state of facts. (Driscoll v. City of Los Angeles, supra, 67 Cal.2d 297, 305 .) It is undisputed in this case that John was aware of the molestation and knew that it was wrongful when it occurred. (He was 14 years old.) For that reason alone, it is questionable whether plaintiffs can rely on estoppel based on the teacher’s alleged threats.

The majority does not even refer to this problem, but attempts to avoid it, claiming that “. . . estoppel may certainly be invoked when there are acts of violence or intimidation that are intended to prevent the filing of a claim.” (Lead opn. at p. 445, ante, italics in opinion.) This contention is somewhat of a red herring. There are no allegations in this case of violence or any form of physical intimidation. More important, the majority treats as a well-established rule what is at best an unsettled question. In DeRose v. Carswell (1987) 196 Cal.App.3d 1011 [ 242 Cal.Rptr. 368 ], the only California case cited by the majority, the Court of Appeal explained, “. . . the usual context for an estoppel argument is a history of negotiations between the parties that lead one side to believe that claims will be settled. Basing an estoppel on threats appears to be a novel but plausible application of the estoppel rule.” (Id. at p. 1026, italics added.) The majority characterizes as a clear rule what the DeRose court found to be an unresolved question. Moreover, the DeRose court held the plaintiff in that case could not rely on estoppel to avoid the statute of limitations. DeRose is also inapposite because the person *458 that the plaintiff sought to estop was the alleged perpetrator of sexual misconduct, not a vicariously liable defendant.

In the only other case cited by the majority on this point, it was clear that the plaintiff, who was seeking to rely on estoppel to avoid a statute of limitations, was unaware of the statute. (Longo v. Pittsburgh and Lake Erie Railroad Co., N.Y.C. Sys. (3d Cir. 1966) 355 F.2d 443, 444 .) That case does not stand for the proposition that a threat is sufficient to give rise to estoppel even if the plaintiff was aware of the true state of facts.

Perhaps under certain circumstances there should be a rule that a threat is sufficient by itself to create an estoppel. No such rule, however, has yet been established in this state. If the majority proposes to create such a rule, the majority should duly consider the question and announce forthrightly that it is establishing a new rule. The majority should not attempt to justify its result by mischaracterizing California law as already being as the majority wishes. 1

C. Estoppel based on the teacher’s alleged threats does not benefit plaintiffs.

The majority premises its discussion of estoppel on the alleged threats by John’s teacher. Even if those threats are found to estop the district, plaintiffs’ claims were untimely. Under section 911.2, as it was then worded, plaintiffs had to present their claims to the district within 100 days of the accrual of the cause of action. 2 Plaintiffs admit that John told his father on December 17, 1981, of the alleged molestation. The threats ceased to cause any delay as of that date, and estoppel was no longer applicable. Plaintiffs *459 therefore had 100 days after December 17, 1981, to file their claims. They did not do so until May 13, 1982—147 days later. Their claim was untimely under section 911.2 even if the alleged threats delayed John in telling his parents of the molestation.

Under section 911.4, plaintiffs had a reasonable time not to exceed one year after the cause of action accrued in which to apply for leave to file a late claim. In light of the majority’s admitted reservations as to the Court of Appeal’s finding that accrual was delayed until John informed his parents (lead opn. at p. 444, ante), I presume the majority believes the cause of action accrued on the date of molestation. If so, plaintiffs’ application under section 911.4 was also untimely. The molestation occurred no later than February 1981, but the application was not filed until May 1982—more than one year later.

The alleged threat is relevant only if the majority’s unstated premise is that estoppel based on the threat delayed accrual of plaintiffs’ causes of action until John informed them of the molestation. If that is the premise, the majority should explain why it has reservations as to the Court of Appeal’s finding of delayed discovery because, as applied by the majority, estoppel is delayed discovery under a different label. It is therefore inconsistent and misleading for the majority to purport to disapprove of delayed discovery while at the same time molding the doctrine of estoppel to delay accrual until discovery. “Rose is a rose is a rose is a rose.” (Gertrude Stein, Sacred Emily (1913).)

D. Estoppel should not operate to delay accrual of plaintiffs’ causes of action.

Because the majority uses estoppel to delay accrual of plaintiffs’ causes of action, I believe it necessary to explain briefly some of the reasons why delayed discovery is inappropriate.

1. A delayed-discovery rule is unnecessary in most cases to protect a minor’s interest. The delayed-discovery issue arises in this case only because the minor is seeking recovery from a governmental entity under the Tort Claims Act. In cases in which the defendants are not protected by the Tort Claims Act, the minor has the benefit of Code of Civil Procedure section 352, which provides that the period of limitation on a minor’s claim is tolled during his minority. If the period of limitation, as in this case, is one year, the minor has until the age of nineteen to file suit.

2. Even in the narrow context of molestation claims against governmental entities, the delayed-discovery rule is largely unnecessary to protect the *460 minor’s interest. A majority of the court agrees there should be no vicarious liability imposed on the district because the teacher was not acting in the course and scope of his employment. The logical consequence of that conclusion is that the teacher is not subject to the protection of the Tort Claims Act. As to him, the general statute of limitation applies, and the minor had until one year after reaching the age of majority to file suit.

Moreover, under the Tort Claims Act, a claimant has a reasonable time, not to exceed one year after accrual of his cause of action, to file an application to present a late claim. Thus, even if we define the date of accrual as the date of injury, a minor has a year thereafter to file a claim if he acts reasonably. (A minor is almost always found to have acted reasonably in filing a claim.) This seems to be a sufficient period of time. Indeed, in this case John’s parents learned of the alleged molestation well within the one-year period.

3. A key purpose of the prompt claim-filing requirement is to allow a public entity the opportunity to investigate and to respond. A delayed-discovery rule in molestation cases is fundamentally inconsistent with that purpose. Under the majority’s estoppel theory, a claim could be filed 10 or 15 years after an alleged molestation. It will be much more difficult to investigate at that late date than if the claim is filed within the period specified in the Tort Claims Act.

The Court of Appeal relied on the delayed-discovery rule as applied in malpractice cases against public hospitals. As recently explained by the Washington Supreme Court in Tyson v. Tyson (1986) 107 Wn.2d 72 [ 727 P.2d 226 ], there are sound reasons why the rule in malpractice cases should not be extended to sexual molestation cases. Unlike in medical malpractice cases, the evidence of injury and damages in a molestation case is often not objectively verifiable. For example, if a surgeon leaves a sponge in a patient’s abdomen and the sponge is not discovered for 15 years, the defendant is not much prejudiced by the passage of time because the injury (leaving the sponge) and the damages (the current illness) are objectively verifiable. This may not be true in every malpractice case, but it is likely the general situation. There will also be medical records and often witnesses, e.g., nurses and other physicians.

In almost all molestation cases, however, there will be no physical evidence of molestation, especially after considerable time has passed; there will be no documentary evidence; and there will be only two witnesses—the child and the defendant. It will be very difficult for a public entity to investigate the allegations against it, much more so than in the typical medical malpractice case. Thus, the delayed-discovery rule in molestation *461 cases is inconsistent with the purpose of the prompt claim-filing requirement.

I also note the dynamics of a belated molestation case. A defendant charged with a molestation that allegedly occurred five or ten years ago is at a terrible disadvantage. The plaintiff, perhaps still a child, understandably has the jury’s sympathy. The defendant has only his denial. Even worse, the child often “remembers” the alleged molestation several years later only as a result of counseling in which a therapist “discovers” what happened.

There is also an evidentiary problem that may prejudice a defendant. As evidenced by John’s conflicting testimony in the criminal proceeding against the teacher, minors often do not remember when the alleged molestation occurred. This makes it very difficult for the innocent defendant to establish an alibi defense. A defendant charged with other crimes, e.g., murder or robbery, can attempt to show that he was elsewhere when the crime was committed. Consider, however, the trial of an action for molestation many years after the event. The child will likely not remember with any specificity when the alleged molestation occurred. His recollection may be something like “a few years ago or the summer two or three years ago.” An innocent defendant will be hard pressed to assert an alibi after passage of such a long and vague period of time.

I note the foregoing factors not out of sympathy or tolerance for child molesters. Sexual abuse of a child is tragic. Society’s justifiable repugnance toward such misbehavior, however, is the reason why a falsely accused defendant can be gravely harmed. The potential for prejudice is exacerbated where the defendant is not the molester himself and knew nothing about the molestation until after it occurred, for example, a school district. I doubt that a school district can adequately investigate and defend a claim 5, 10, or 15 years after an alleged molestation.

4. The only reason for applying the delayed-discovery rule in this case is to provide the minor with a deep financial pocket for recovery. I do not believe such goal, though beneficent, is a sufficient reason to undercut the policies that require prompt claim filing against governmental entities. The court’s proper function is not to search for deep pockets. Moreover, even if one concludes that in a perfectly fair world the minor should have the same length of time to file a claim against the district as against a private defendant, that determination should be made by the Legislature, not this court. It is unquestioned that the Legislature had the authority to provide less time for claims against the government than against private defendants. Every judicial decision that operates to lengthen the claim period is contrary to the underlying legislative goal of requiring prompt claims.

*462 On a more general level, I believe statutes of limitation, including the Tort Claims Act, serve a valuable purpose for society. It seems increasingly fashionable to view the statutes as obstacles that must always be overcome to allow compensation to an injured party. That the statutes were enacted, however, indicates a legislative decision that, despite tortious injury, there are compelling reasons to deny recovery after the passage of time. All statutes of limitation are arguably unfair when they operate to preclude recovery for wrongfully caused injuries, but society has decided this unfairness is outweighed by the unfairnéss that results from the assertion of stale claims.

5. I believe there should be some symmetry between the civil and criminal statutes of limitation. For sex crimes and most others, the period of limitation begins to run at the commission of the offense rather than when the offense is discovered. From a societal perspective, I believe the state’s interest in prosecuting a child molester is equal to the interest of a molestation victim in receiving compensation in a civil action. The defendant’s perspective is also similar. He will be gravely harmed by false charges if they are brought in a penal or civil action. If the Legislature has determined that for penal purposes the statute begins to run at the time of the offense, it seems reasonable that the civil statute should operate likewise, especially when, as in this case, the real purpose of applying the delayed-discovery rule is to allow recovery from a party other than the molester.

In summary, the equitable estoppel rule approved by the majority benefits plaintiffs only if it operates to delay the accrual of their causes of action until the date John’s parents learned of the alleged molestation. There are numerous reasons, however, why the delayed-discovery rule should not apply, and the majority itself expresses reservations as to the rule’s application in this case. Those same reservations should cause the majority to refrain from relying on equitable estoppel to preserve plaintiffs’ claims.

E. Conclusion.

I would reverse the Court of Appeal’s decision in its entirety with directions to remand this action to the trial court for entry of judgment in favor of defendant school district.

Lucas, C. J., and Panelli, J., concurred.

The majority is potentially misleading on one other point. In a footnote, the majority indicates that the trial court must determine when the alleged threats by the teacher ceased. (Lead opn. at p. 446 fn. 6, ante.) Apparently, the majority means to suggest that the estoppel continued even after John informed his parents of the alleged molestation. I disagree. The majority provides no guidance as to when the estoppel period ceased. Such a rule creates a potentially infinite claims period. Moreover, the majority also suggests that plaintiffs’ claims could be found to be timely even if they were filed long after the expiration of the claim-filing period. The majority’s implicit reasoning is that the claim period under the Tort Claims Act does not begin to run until the estoppel ceases. In other words, if the circumstances giving rise to the estoppel continued for 10 years, the claim period would not even begin to run until after the 10-year period of estoppel. According to the majority’s reasoning, if the claimant then filed his claim within this delayed claim period, his claim would be timely, and he would not have to show any reason why his claim was not filed within the statutory period, and the public entity would not be allowed to show prejudice from the lengthy delay. This result is clearly contrary to Government Code section 946.6, subdivision (c)(1), which provides that a court shall grant relief from the claim-filing requirement if “The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim . . . .”

All statutory references are to the Government Code unless otherwise indicated.