By: Alison M. Crane
On September 19, 2022, California Governor Gavin Newsom signed Assembly Bill 2777 – the Sexual Abuse and Cover-Up Accountability Act – which provides adults who claim they were victims of sexual assault the opportunity to file civil claims for damages related to crimes that were otherwise barred by an expired statute of limitations. “Sexual assault” in this context means any of the crimes described in Section 243.4, 261, 264.1, 286, 287, or 289, or former Sections 262 and 288a, of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes. The law takes effect on January 1, 2023, and provides a three-year window for survivors of sexual assault to file claims for financial compensation as a result of crimes which meet the statute’s criteria.
California Code of Civil Procedure Section 340.16 allows a plaintiff to recover damages suffered as a result of sexual assault, where the assault occurred after the plaintiff’s 18th birthday, so long as the action is commenced (1) within 10 years from the date of the last act (including act, attempted act, or assault with intent to commit the act) of sexual assault against the plaintiff, or (2) within three years from the date the plaintiff discovers or reasonably should have discovered an injury or illness resulted from an act of sexual assault against the plaintiff, whichever is later. By way of background, in 2019, California extended the statute of limitations for sexual assault from two to ten years. However, this bill did not expressly revive otherwise time-barred claims. This recently passed law addresses this by creating the revival window for any sexual assault claim based upon conduct that occurred after January 1, 2009 (ten years preceding the 2019 bill) and commenced after January 1, 2019.
Of concern for businesses, the bill also creates a one-year revival period for a plaintiff to bring a claim against an entity that would otherwise be barred because the statute of limitations expired if the plaintiff alleges the following: (1) the plaintiff was sexually assaulted; (2) one or more entities are legally responsible for damages arising out of the sexual assault (which can be demonstrated through, inter alia, negligence, intentional torts, and vicarious liability); and (3) the entities, including their officers, directors, representatives, employees, or agents, engaged in a cover up or attempted cover up of a previous instance or allegation of sexual assault by an alleged perpetrator of such abuse. Claims that have been litigated to finality in court or have been resolved through a written settlement agreement are not revived. Nor are claims against public entities. A sexual assault survivor plaintiff would have until December 31, 2023, to bring such a claim under this law.
The statute defines a cover up as “a concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.” This includes claims for wrongful termination and sexual harassment where sexual assault formed the basis of those claims.