Roe 91 v. Archdiocese CA2/8

Filed 2/27/14 Roe 91 v. Archdiocese CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JOHN ROE 91, B248428

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC 481512) v.

DOE 1, ARCHDIOCESE,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Emilie H. Elias, Judge. Affirmed.

The Zalkin Law Firm, Irwin M. Zalkin and Devin M. Storey for Plaintiff and Appellant.

McKool Smith Hennigan, J. Michael Hennigan and Lee W. Potts for Defendant and Respondent.

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Code of Civil Procedure section 340.1 (section 340.1) governs the time for commencing a lawsuit claiming childhood sexual abuse, the subject of this case. Relying on the Servicemembers Civil Relief Act (50 U.S.C.A. Appen. § 501 et seq.) formerly known as the Soldiers’ and Sailors’ Civil Relief Act of 1940, plaintiff and appellant argues that the statute of limitations in section 340.1, effective January 1, 2003, should have been tolled while he served in the military between 1996 and 1999. We conclude that the statute of limitations effective in 2003 was not tolled by plaintiff’s military service years earlier. Tolling a statute of limitations generally means stopping or abating the limitations period. (People v. Leiva (2013) 56 Cal.4th 498, 507, 509.) The Servicemembers Civil Relief Act “essentially tolls periods of limitation both in favor of and against ‘persons in military service’ to the extent that their ‘period of military service’ coincides with the limitations period.” (In re A.H. Robins Co., Inc. (4th Cir. 1993) 996 F.2d 716, 718, fn. omitted.) Here plaintiff’s military service did not coincide with any relevant limitations period. There was no statute of limitations to stop or abate when plaintiff was in the military. We therefore affirm the judgment of dismissal. FACTS AND PROCEDURE Plaintiff John Roe 91 sued defendant Doe 1, Archdiocese, which allegedly employed a priest responsible for sexually abusing plaintiff. According to the complaint, plaintiff was born on January 4, 1976, and suffered the sexual abuse in 1987 or 1988. Plaintiff was an active member of the military from September or October 1996 through October 1999. Plaintiff alleged that he did not recall the sexual abuse until the summer of 2011. Archdiocese demurred to the complaint, arguing the lawsuit was barred by the statute of limitations. The trial court agreed and entered judgment dismissing the lawsuit with prejudice.