California Courts of Appeal Reports

PEREZ v. ROE, B182814 (Cal.App. 12-27-2006) CRISTIN PEREZ
et al., Plaintiffs and Appellants, v. RICHARD ROE 1 et al.,
Defendants and Respondents. B182814 Court of Appeal of
California, Second District, Division Eight. Filed:
December 27, 2006

APPEAL from a judgment of the Alameda County Superior
Court. Ronald M. Sabraw, Coordination Judge, (Alameda
County Super. Ct. JCCP 4359), Affirmed.

Furtado, Jaspovice & Simons and Richard J. Simons; Law
Offices of Joseph George and Joseph George Sr.; Law Offices
of Daniel U. Smith and Daniel U. Smith, for Plaintiffs and

Neumiller & Bearslee and Paul N. Balestracci; McNamara,
Dodge, Ney, Beatty, Slattery & Pfalzer, and Thomas G.
Beatty, for Defendants and Respondents.


Plaintiffs Cristin Perez and Daniel Howard appeal from the
judgment dismissing their childhood sexual abuse complaint
against The Roman Catholic Bishop of Stockton because the
statute purporting to revive their previously dismissed
complaints violated California`s constitutional separation
of powers doctrine. We affirm.


Cristin Perez and Daniel Howard sued the Roman Catholic
Bishop of Stockton in July 2003, alleging that they had
been the victims of sexual abuse by one of its parish
priests in the late 1970s and early 1980s, when they were
both minors.[fn1] Howard and Perez had each sued the Bishop
before, but their complaints were dismissed in 1994 and
1995, respectively, under the then applicable one-year
statute of limitations. (Code Civ. Proc., § 340;
Tietge v. Western Province of the Servites, Inc. (1997) 55
Cal.App.4th 382, 385 (Tietge).)[fn2] The judgment against
Howard became final in February 1996 after the California
Supreme Court denied his petition seeking review of an
appellate court decision affirming the trial court`s
judgment. The judgment against Perez became final in June
1996 when her appeal from the trial court`s order was

In 1998, the Legislature expanded the limitations period
for actions against entities that employed or supervised
abusers until three years from the date the plaintiff
discovers that psychological injury occurring after age 18
was due to childhood sex abuse, but no later than the
plaintiff`s 26th birthday. (§ 340.1, subds. (a)(2)
– (3); Mark K. v. Roman Catholic Archbishop (1998)
67 Cal.App.4th 603, 610, fn. 4.) Effective January 1, 2003,
the Legislature removed the age 26 cut-off for claims based
on a defendant`s alleged failure to safeguard the plaintiff
from a perpetrator`s sexual abuse when the defendant knew
or had reason to know the perpetrator had committed
unlawful sexual conduct. After that time, the limitations
period on those claims would expire three years from the
plaintiff`s discovery that adult-onset psychological
injuries had been caused by acts of childhood sexual abuse.
(§ 340.1, subds. (a), (b)(2).) As part of that
amendment, the Legislature revived for a one-year period
all actions that fell within subdivision (b)(2), but which
were otherwise barred because the previous limitations
period had expired. (§ 340.1, subd. (c).) The
revival provision does not apply to actions “litigated to
finality on the merits before January 1, 2003.” However,
“[t]ermination of a prior action on the basis of the
statute of limitations does not constitute a claim that has
been litigated to finality on the merits.” (§ 340.1,
subd. (d)(1).) Appellants` 2003 complaint alleged that
their action fell under this provision. The Bishop
demurred, contending that the Legislature`s attempt to
unravel a final judgment violated the separation of powers
doctrine. (Cal. Const., art. III, § 3.) The trial
court agreed, sustained the demurrer without leave to
amend, and entered a judgment of dismissal for the Bishop.
We hold that the trial court was correct, and affirm the


In reviewing a judgment of dismissal after a demurrer is
sustained without leave to amend, we must assume the truth
of all facts properly pleaded by the plaintiff-appellant.
Regardless of the label attached to the cause of action, we
must examine the complaint`s factual allegations to
determine whether they state a cause of action on any
available legal theory. (Black v. Department of Mental
Health (2000) 83 Cal.App.4th 739, 745.) The judgment will
be affirmed if it is proper on any of the grounds raised in
the demurrer, even if the court did not rely on those
grounds. (Pang v. Beverly Hospital, Inc. (2000) 79
Cal.App.4th 986, 989.)

We will not, however, assume the truth of contentions,
deductions, or conclusions of fact or law and may disregard
allegations that are contrary to the law or to a fact which
may be judicially noticed. When a ground for objection to a
complaint, such as the statute of limitations, appears on
its face or from matters of which the court may or must
take judicial notice, a demurrer on that ground is proper.
(§ 430.30, subd. (a); Black v. Department of Mental
Health, supra, 83 Cal.App.4th at p. 745.) We may take
judicial notice of the records of a California court.
(Evid. Code, § 452, subd. (d).) We must take judicial
notice of the decisional and statutory law of California
and the United States. (Evid. Code, § 451, subd.


1. The Separation of Powers Doctrine

The California Constitution divides power equally among
three branches of state government: the Legislature (Cal.
Const., art. IV, § 1); the executive branch (Cal.
Const., art. V, § 1); and the courts. (Cal. Const.,
art. VI, § 1.) Although there is a certain overlap
and interdependence among the three branches, each is
constitutionally vested with certain “core” or “essential”
functions that the others may not perform. (People v. Bunn
(2002) 27 Cal.4th 1, 14, 16 (Bunn).) Protection of those
core functions is guarded by the separation of powers
doctrine and is embodied in a constitutional provision
which states that one branch of state government may not
exercise the powers belonging to another branch. (Cal.
Const., art. III, § 3; Bunn, supra, at pp. 14, 16;
Mandel v. Myers (1981) 29 Cal.3d 531, 539, fn. 4 (Mandel).)
The purpose of this doctrine is to prevent both the
concentration of power in a single branch of government and
overreaching by one branch against another. (Bunn, supra,
at p. 16.)

A core function of the Legislature is to make statutory
law, which includes weighing competing interests and
determining social policy. A core function of the judiciary
is to resolve specific controversies between parties. As
part of that function, the courts interpret and apply
existing laws such as statutes of limitation. (Bunn, supra,
27 Cal.4th at pp. 14-15 [concerning criminal law statutes of
limitation].) Separation of powers principles compel the
courts to carry out the legislative purpose of statutes and
limit the courts` ability to rewrite statutes where
drafting or constitutional problems appear. Those same
principles also constrain legislative influence over
judicial proceedings. When cases become final for
separation of powers purposes, the Legislature may not
interpret a statute or otherwise bind the courts with an
after-the-fact declaration of legislative intent. While the
Legislature may amend a statute and apply the changed law to
pending and future cases, the amended statute may not
readjudicate or otherwise disregard judgments that are
already final. (Id. at pp. 16-17, citing to Mandel, supra,
29 Cal.3d at p. 547.)

In Bunn, and its companion case People v. King (2002) 27
Cal.4th 29 (King), the California Supreme Court announced a
rule in the area of criminal law statutes of limitation
that we hold is applicable here: if a criminal complaint is
dismissed because the statute of limitations has run, and
the Legislature later retroactively expands the statute of
limitations before that ruling becomes final, then the new
limitations period will apply. If the Legislature changes
the limitations period after the time for appeal has
expired or the ruling has completed its journey through the
entire appellate process, however, the Legislature`s
attempt to revive the criminal action violates the
separation of powers doctrine. Because Bunn and King were
based in large measure on the United States Supreme Court`s
decision in Plaut v. Spendthrift Farm, Inc. (1995) 514 U.S.
211 (Plaut), we will first describe Plaut before discussing
in detail Bunn and King.

2. Plaut v. Spendthrift Farm

The plaintiffs in Plaut filed a fraud action in federal
court based on alleged violations of federal securities
laws. The action was filed in 1987 and alleged fraudulent
acts that had taken place in 1983 and 1984. When the action
was filed, federal courts were required to “borrow” the
most analogous state statute of limitations from the
jurisdiction where the action was pending. On June 20,
1991, however, the United States Supreme Court changed the
controlling law and adopted a uniform federal limitations
rule requiring that such actions be filed within one year
of discovery of the violation or within three years of the
violation. (Lampf v. Gilbertson (1991) 501 U.S. 350
(Lampf).) Another decision issued the same day as Lampf
made the Lampf ruling retroactive to all civil actions for
securities fraud then pending. (James B. Beam Distilling
Co. v. Georgia (1991) 501 U.S. 529.) Based on these two
decisions, the federal district court where the Plaut action
had been filed dismissed that action under the new
limitations period.

Congress responded by passing legislation designed to undo
Lampf`s retroactive effect. (15 U.S.C. § 78aa-1.) The
new legislation restored the pre-Lampf rule in two kinds of
actions commenced before June 20, 1991, the date Lampf was
filed: (1) cases still pending on June 19, 1991; and (2)
cases that were dismissed as time-barred between June 20
and December 19, 1991, that were timely when filed. The new
law allowed plaintiffs to seek reinstatement of dismissed
actions within 60 days after that law took effect. The
plaintiffs in Plaut moved to reinstate their action under
the new law, but the district court refused, finding that
the statute violated federal separation of powers
principles. (U.S. Const., art. III, § 1.) A federal
appeals court affirmed that ruling, as did the Plaut court.

The Plaut court began with an examination of the three
distinct branches of the federal government —
legislative, executive, and judicial — and the
essential functions each is constitutionally empowered to
perform. While Congress makes laws, a core function of the
judiciary is to interpret statutes and decide individual
cases arising under those statutes. (Plaut, supra, 514 U.S.
at pp. 218-219, 221-222.) Noting the historical
considerations that motivated the framers of the U.S.
Constitution to impose a separation of powers limitation
— to prevent the colonial practice by which state
assemblies either functioned as equitable courts or
provided appellate review of trial court judgments —
Plaut said the separation of powers doctrine was designed
to avoid interference with final court judgments. (Id. at
pp. 219-225.)

The law at issue in Plaut was deemed retroactive
legislation, which “prescribes what the law was at an
earlier time, when the act whose effect is controlled by
the legislation occurred. . . .” (Plaut, supra, 514 U.S. at
p. 225, original italics.) “When retroactive legislation
requires its own application in a case already finally
adjudicated, it does no more and no less than `reverse a
determination once made in a particular case.`” (Ibid.,
citing The Federalist No. 81 at p. 545.) Such legislation
is a “clear violation of the separation-of-powers
principle. . . .” (Ibid.) Once a judgment becomes final,
“Congress may not declare that the law applicable to that
very case was something other than what the courts said it
was.” (Id. at p. 227, original italics.)

Only those judgments that represent the last word from the
entire judicial system are final under Plaut. Because the
judicial branch consists of a hierarchy of courts —
from district courts and appellate courts to the Supreme
Court itself — a judgment has no conclusive effect
for separation of powers purposes until the time for appeal
has passed, or an appeal has been pursued and the review
process is completed. Therefore, separation of powers
principles are not implicated, and a lower court decision
has not been unconstitutionally altered, when a reviewing
court applies a new retroactive statute to cases still
pending on appeal. (Plaut, supra, 514 U.S. at pp. 226-227.)

Similarly, Congress may authorize or require the
reinstatement of a dismissed action where the prior
judgment becomes final for separation of powers purposes
only after the new law takes effect. (Id. at p. 234.) That
does not preclude statutes giving the trial courts
discretion to reopen judgments procured through fraud,
excusable neglect, and the like. “The relevant
retroactivity, of course, consists not of the requirement
that there be set aside a judgment that has been rendered
prior to its being set aside — for example, a statute
passed today which says that all default judgments rendered
in the future may be reopened within 90 days after their
entry. In that sense, all requirements to reopen are
`retroactive,` and the designation is superfluous. Nothing
we say today precludes a law such as that. The finality
that a court can pronounce is no more than what the law in
existence at the time of judgment will permit it to
pronounce. If the law then applicable says that the
judgment may be reopened for certain reasons, that
limitation is built into the judgment itself, and its
finality is so conditioned. The present case, however,
involves a judgment that Congress subjected to a reopening
requirement which did not exist when the judgment was
pronounced.” (Ibid, original italics.)

3. The Bunn and King Decisions

At issue in Bunn and King were statutory amendments
reviving certain child molestation prosecutions that had
been dismissed as time-barred by the then existing statute
of limitations. (Pen. Code, § 803, subd. (g).) The
new law not only revived timebarred cases that had never
been prosecuted, it also applied to prosecutions that had
been dismissed pursuant to the previous limitations period.
Effective January 1, 1997, prosecutors were given until
June 30, 1997 to refile such cases (the first refiling
period). Another amendment took effect June 30, 1997
extending the first refiling period until 180 days after a
final decision by the California or United States Supreme
Court determining that retroactive application of the
revival statute was constitutional (the second refiling

Bunn and King were each charged with child molestation in
1995. Both demurred to the criminal complaints on statute
of limitations grounds, contending that legislative
attempts to revive the limitations period in 1994 were
unconstitutional. The trial courts agreed and dismissed the
cases. The appellate courts in both cases affirmed those
orders. In King, the prosecution`s petition for review to
the California Supreme Court was dismissed April 24, 1997.
The prosecution did not refile a complaint until July 2,
1997, three days after the second refiling period took
effect. In Bunn, the petition for review was dismissed May
21, 1997, and the prosecution refiled under the first
refiling period on the last possible day, June 30, 1997,
then timely refiled under the second refiling period a
short time later.

The refiling dates were the key to both decisions. Finding
Plaut “persuasive for purposes of interpreting California`s
separation of powers clause,” (Bunn, supra, 27 Cal.4th at
p. 22), the Supreme Court held that Bunn`s prosecution did
not violate separation of powers principles because the
statute of limitations had been amended while his appeal
was pending, and the refiled prosecution occurred according
to the terms of legislation that was in effect before the
appellate process was completed. (Id. at pp. 26-27.) Bunn
distinguished cases where a prior dismissal “was entered or
finally upheld when [the first refiling period] was in
effect [], but the reinstituted complaint complies only
with a later version [the second refiling period], which
became effective after the prior dismissal was entered or
finally upheld. In that circumstance, use of the later law
constitutes an impermissible retroactive attack on a
judgment constitutionally subject to reopening only under
the earlier law.” (Id. at p. 26.) Because that is what
happened in King, the court in that case found retroactive
application of the second refiling period to be in
violation of the separation of powers doctrine. “The
judgment in [the first case] became final in the separation
of powers sense in April 1997, when this court dismissed
review. At that time, the six-month [first refiling period]
. . . was in effect. Indeed, because the [first refiling
period] was operative until June 30, 1997, the People had
more than two months to invoke it against defendant.
However, it was not until July 2, 1997 — a few days
after the [first refiling period] expired and the [second
refiling period] took effect — that charges were
refiled and the instant prosecution began. [¶] . . .
[T]he [second refiling period] cannot be retroactively
applied in this case to allow the refiling of charges that
had been dismissed, at both the trial and appellate levels,
before the [second refiling period] became effective. It
follows that the refiling at issue here was
constitutionally invalid.” (King, supra, 27 Cal.4th at p.
36, original italics.)

Both decisions were animated by the California Supreme
Court`s understanding of Plaut and its applicability to
California`s separation of powers doctrine. “Consistent
with the California principles and authorities discussed
above, Plaut properly preserves and balances the respective
`core functions` of the two branches. On the one hand,
Plaut recognizes the core judicial power to resolve
`specific controversies` between parties by judgments that
are `final` under laws then extant, and holds such final
dispositions inviolate from legislative `disregard`. On the
other hand, Plaut acknowledges the paramount legislative
power to `make` law by statute, to apply new law to all
cases still pending at either the trial or the appellate
level, and to regulate, within reasonable limits, the
practices and procedures by which judicial matters are to
be resolved. When the finality of a judicial determination
is limited or conditioned by the terms of a general statute
already in effect when the determination is made,
application of the statute according to its terms is but a
reasonable, and therefore permissible, legislative
restriction upon the constitutional function of the
judiciary; it does not defeat or materially impair that
function. Because we therefore conclude that Plaut . . . is
in clear conformity with California law, we follow it
here.” (Bunn, supra, 27 Cal.4th at pp. 22-23, italics added,
citations, internal quotations and footnote omitted.)[fn5]

4. The Legislature`s Attempt at Reviving Child Molestation
Tort Claims That Were Dismissed Under the Earlier Statute
of Limitations Violates California`s Constitutional
Separation of Powers Doctrine

When appellants` first actions were dismissed and the
dismissals were upheld on appeal in the mid-1990s, the
applicable limitations period for childhood sex abuse
claims against entities like the Bishop was one year.
(§ 340; Tietge, supra, 55 Cal.App.4th at p. 385.) In
1998, after appellants` first actions had become final,
section 340.1 was amended to extend the limitations period
to the earlier of age 26 or three years from the date the
plaintiff discovered that psychological injuries occurring
after age 18 were caused by the alleged childhood abuse.
(Mark K. v. Roman Catholic Archbishop, supra, 67 Cal.App.4th
at p. 610, fn. 4.) By that time, however, appellants`
claims had long since been adjudicated as time-barred. In
2002, effective January 1, 2003, the Legislature amended
section 340.1 to remove the age 26 cut-off and revive for a
one year period certain childhood sexual abuse claims
against entities like the Bishop. (§ 340.1, subds.
(b)(2), (c).) The revival period did not apply to actions
that had been litigated to finality on the merits, but the
Legislature declared that an action terminated solely
because the previous statute of limitations had expired was
not such an action. (§ 340.1, subd. (d).)[fn6] Thus,
on its face, the statute revived appellants` claims.

When lined up with Plaut, Bunn, and King, this aspect of
the revival statute is a round peg that easily slides into
the corresponding round hole of separation of powers
analysis established by those three decisions: appellants`
original actions were dismissed because the then-existing
statutory limitations period had expired. When those
actions were dismissed, and throughout the time those
dismissals were upheld on appeal, the statute of
limitations did not change. It was not until approximately
two years later that a new limitations period went into
effect, and it would be another five years before the
Legislature purported to revive claims such as these, which
were dismissed pursuant to the earlier statute of
limitations. Under Plaut, Bunn, and King, the Legislature`s
attempt to undo the finality of those earlier judgments
violates the separation of powers doctrine.

Appellants and amicus see this round peg as a square one,
however, due to the res judicata effect of a defense
judgment based solely on the statute of limitations. This
argument is rooted in two statements in Plaut: that a
judgment on statute of limitations grounds is on the merits
under federal law (Plaut, supra, 514 U.S. at p. 228); and
that it was permissible to reopen a judgment if, at the
time it was rendered, a condition allowing reopening
existed and was therefore built into the judgment. (Id. at
p. 234.) California law holds that a civil judgment based
solely on the statute of limitations is not on the merits
and that if new facts may be pleaded to cure the defect,
the prior judgment will not bar a new action. (See Koch v.
Rodlin Enterprises, Inc. (1990) 223 Cal.App.3d 1591,
1596-1597 (Koch).) According to appellants and amicus, this
condition was therefore built into the earlier judgments
against appellants, permitting the Legislature to do what
the doctrine of res judicata already allowed: revive their
actions by passing a law to that effect.[fn7] By contrast,
they point to criminal law limitations periods, which are
substantive instead of procedural defenses going to the
trial court`s jurisdiction. (See People v. Williams (1999)
21 Cal.4th 335, 339-340.) Based on this, amicus and
appellants attempt to distinguish Bunn and King because
they concerned a criminal limitations period.

This reasoning is flawed in several respects. First, the
line of cases upon which appellants and amicus rely is
inapplicable. The primary authority cited is Goddard v.
Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47
(Goddard) [federal action dismissed after demurrers were
sustained for technical pleading defects was not res
judicata of action in California state court where state
court complaint eliminated those defects].) While a general
demurrer may be on the merits, the Goddard court held that
is not always so. If the pleading defects are “technical
and formal” and can be corrected by a new pleading, the
prior judgment will not have res judicata effect. (Id. at
p. 52.) “This result has frequently been reached where the
failure of the first complaint was in misconceiving the
remedy, or framing the complaint on the wrong form of
action. [Citations.]” (Ibid.)

Appellants also cite Koch, supra, 223 Cal.App.3d 1591,
which was based on Goddard. The plaintiffs in Koch sued to
rescind land purchase contracts, contending the sales
violated state laws regulating housing subdivisions. The
defendants moved for summary judgment under the four-year
statute of limitations for rescission claims. (§ 337,
subd. (3).) Plaintiffs sought leave to amend to state a
claim for common law fraud based on their recent discovery
of the alleged fraud, thereby curing the statute of
limitations problem. The trial court refused, and granted
summary judgment. One month later, plaintiffs filed a new
complaint for common law fraud, but a demurrer was later
sustained without leave to amend on the ground that the
earlier summary judgment was res judicata of the new fraud
claim. Citing Goddard and other decisions, the Koch court
held that the statute of limitations was a procedural
defect that did not reach the merits of the earlier action.
The second action was “based on common law fraud which
allegedly was discovered within the applicable limitations
period. Thus, the former judgment does not bar the present
case.” (Koch, supra, at p. 1597, italics added.)

The inapplicability of these decisions to this case is
readily apparent. Goddard did not discuss the statute of
limitations at all. Neither Goddard nor Koch concerned the
separation of powers doctrine or the Legislature`s ability
to revive an action after a judgment for the defendant was
entered under the then-existing statute of limitations, and
that judgment was upheld through the appellate
process.[fn8] Koch concerned a plaintiff`s right to state a
fraud claim based on newly discovered facts that complied
with the then existing statute of limitations, after the
trial court denied leave to amend the complaint in the
original action to state such a claim. By allowing a second
action under a different legal theory that was timely under
an already existing statute of limitations, Koch conformed
to Plaut, which held: “The finality that a court can
pronounce is no more than what the law in existence at the
time of the judgment will permit it to pronounce. If the
law then applicable says that the judgment may be reopened
for certain reasons, that limitation is built into the
judgment itself, and its finality is so conditioned.”
(Plaut, supra, 514 U.S. at p. 234.) When the original
judgments against appellants in this action were entered,
there were no new facts or alternate statutes of
limitations available to rescue their claims. Instead, to
paraphrase Plaut, this case involves judgments that the
Legislature subjected to a reopening device that did not
exist when those judgments were pronounced. (Ibid.)

Furthermore, the notion of finality which appellants and
amicus find in Plaut and the Goddard line of cases is not
so clear cut. When Plaut mentioned that dismissals based on
the statute of limitations were deemed to be on the merits,
it cited two authorities: Federal Rule of Civil Procedure
41(b) (rule 41(b)) and United States v. Oppenheimer (1916)
242 U.S. 85 (Oppenheimer). (Plaut, supra, 514 U.S. at p.
228.) Rule 41(b) applies to involuntary dismissals for
failure to comply with certain federal procedural rules. In
Semtek International Inc. v. Lockheed Martin Corp. (2001)
531 U.S. 497, 506-509, the United States Supreme Court held
that in federal diversity actions governed by state law
statutes of limitation, rule 41(b) does not have full claim
preclusive effect, but instead does no more than prevent an
action dismissed pursuant to that rule from being refiled
within the same federal district court. Oppenheimer was a
criminal law decision which held that concepts of res
judicata were applicable to criminal prosecutions, with
certain criminal law adjudications entitled to the same
treatment as their civil law counterparts, meaning they were
“final as to the matter adjudicated so upon. . . .”
(Oppenheimer, supra, at pp. 87-88, internal quotation marks
and citations omitted.)

Oppenheimer`s version of res judicata does not differ from
California law. While Goddard and Koch might allow a second
action that either alleges new facts, an entirely new
claim, or an alternative theory subject to a different
limitations period, they do not purport to hold that a
judgment based on the statute of limitations is not res
judicata when no new facts or alternative theories are
available. In fact, one of Goddard`s primary decisional
antecedents holds just the opposite.

Goddard cited Newhall v. Hatch (1901) 134 Cal. 269
(Newhall) for the proposition that a prior judgment on a
general demurrer will not bar a new action if the demurrer
was based on technical pleading defects that can be
amended. (Goddard, supra, 14 Cal.2d at p. 52.) The plaintiff
in Newhall sued on a promissory note and deed of trust, but
judgment for defendant was entered after a demurrer was
sustained on statute of limitations grounds. The plaintiff
filed another action, alleging that the defendant had made
a new promise to pay his debt three years after the
original debt, bringing the new action within the statute
of limitations. Defendants appealed after a judgment for
plaintiff in the second action, and the Supreme Court
affirmed. The Newhall court held that the judgment in the
first action adjudicated only the facts alleged in that
complaint, while the second action premised plaintiff`s
right to recovery upon a new, later promise to pay that was
not at issue in the first action. Only those facts actually
determined as part of an earlier judgment will bar a later
action based on the same facts, the Newhall court held.
(Newhall, supra, at p. 272.) In short, the first judgment
was res judicata of the statute of limitations issue raised
by the first action, but not of those raised in the second.
(See McClain v. Rush (1989) 216 Cal.App.3d 18, 29-30 [in
land purchaser`s fraud action against realtors and sellers,
separate summary judgment for realtors on statute of
limitations was conclusive in sellers` summary judgment
motion; time for plaintiff to amend complaint to allege
facts tolling the limitations period had passed]; accord
MIB, Inc. v. Superior Court (1980) 106 Cal.App.3d 228,
232-235 [even though dismissals based on lack of personal
jurisdiction in three earlier proceedings were not on the
merits, they were res judicata of that particular issue in
a fourth action where essentially the same jurisdictional
facts were alleged].)

Ultimately, appellants` and amicus` bid to bring this case
within Plaut`s “built into to the judgment” exception
through Goddard and Koch fails because it conflates
finality for res judicata purposes with finality for
separation of powers purposes. (See Sullivan v. Delta Air
Lines, Inc. (1997) 15 Cal.4th 288, 303-304 [finality of a
judgment for one purposes does not necessarily equate with
finality for some other purpose, and depends on the context
in which it is being considered].)

Bunn and King (and Plaut) never mention res judicata when
discussing the issue of finality. Instead, both decisions
speak of finality “for separation of powers purposes.”
(King, supra, 27 Cal.4th at p. 36; Bunn, supra, 27 Cal.4th
at pp. 17, 20, 21, 25.) In fact, Bunn read Plaut to mean
that whether the prior judgment was on the merits had
nothing to do with the separation of powers issue. The Bunn
court rejected the defendant`s notion that the criminal
limitations period revival provision at issue in that case
had anything to do with the merits of earlier dismissed
prosecutions, concluding that “. . . Plaut itself casts
doubt on whether the effect of a refiling statute on the
`merits’ of judicial determinations is a critical, or even
relevant, separation of powers concern. Plaut seems to
establish a bright-line rule that considers only whether
statutory limitations on finality were, or were not, in
existence when the judgment otherwise achieved conclusive
effect. [Citation.]” (Bunn, supra, at p. 25, fn. 15.)

We read Plaut the same way. The primary evil identified in
Plaut was undoing a judgment that had made its way unaltered
through the appellate process, only to have Congress step
in some time later and reverse that very judgment by
declaring retroactively what the law “was” when the
judgment was entered. (Plaut, supra, 514 U.S. at p. 225.)
Because individual courts are part of a judicial hierarchy,
Plaut distinguished between cases still pending on appeal,
which were subject to new, retroactive legislation, and
cases that had been “finally adjudicated.” (Id. at pp.
226-227.) Once final, “a judicial decision becomes the last
word of the judicial department with regard to a particular
case or controversy, and Congress may not declare by
retroactive legislation that the law applicable to that very
case was something other than what the courts said it was.”
(Id. at p. 227, original italics.) When taken as a whole,
this passage defines finality for separation of powers
purposes as the point at which the last court within a
judicial system rules on a case. Once that occurs, a
legislative body may not revive that very judgment by
amending the statute of limitations.

Bunn and King are in accord: “Separation of powers
principles do not preclude the Legislature from amending a
statute and applying the change to both pending and future
cases, though any such law cannot `readjudicat[e]` or
otherwise `disregard` judgments that are already `final.`
[Citations.]” (Bunn, supra, 27 Cal.4th at p. 17.) As
support for this last proposition, Bunn cited Hunt v.
Superior Court (1999) 21 Cal.4th 984, 1008, as “indicating
that judgments do not become final for separation of powers
purposes until both the trial and appellate process is
complete, and the case is no longer pending in the courts.
” (Bunn, supra, at p. 17, italics added.) Hunt, in turn,
cited Kuykendall v. State Bd. of Equalization (1994) 22
Cal.App.4th 1194, 1207, which held that a judgment is not
final for separation of powers purposes while pending on
appeal. (Hunt, supra, 21 Cal.4th at p. 1008.) The King
court held that the judgment dismissing the prosecution in
that case “became final in the separation of powers sense
in April 1997, when this court dismissed review.” (King,
supra, 27 Cal.4th at p. 36.) By contrast, the Bunn court
held, “a judgment is not final for separation of powers
purposes, and reopening of the case can occur, under the
specific terms of refiling legislation already in effect
when the judicial branch completed its review and
ultimately decided the case.” (Bunn, supra, at p. 25,
italics added.)

It is on this basis that we hold the Legislature violated
the separation of powers doctrine when it amended section
340.1 to revive childhood sex abuse actions where a final
judgment had been entered under the statute of limitations
that previously existed. Once the judgments against
appellants in the previous actions were upheld on appeal
— for Howard when the California Supreme Court denied
his petition for review, and for Perez when her appeal was
dismissed — they became final for separation of
powers purposes and could not be legislatively revived.
Because the power to conclusively resolve cases by
rendering dispositive judgments rests with the judiciary
alone (Plaut, supra, 514 U.S. at pp. 218-219), the
Legislature may not reverse final judgments such as those
that were rendered under the previous limitations period of
section 340.1.

Although this issue may appear to be little more than a
struggle between competing branches of government, waged on
the turf of abstract and desiccated legal principles, it is
ultimately about the competing rights of individual
parties. We recognize the apparent anomaly of allowing the
revival of claims for plaintiffs who never bothered to file
a complaint before the revival period took effect, while
punishing those plaintiffs who displayed more diligence by
at least trying to sue earlier, albeit after the the
nexisting limitations period had expired. On the other
hand, there are the defendants who years ago obtained
favorable judgments based on the law as it then existed,
likely incurring substantial attorney`s fees in order to do
so. Relying on what appeared to be a final judgment, they
might have felt free years later to discard favorable
evidence and might as well have lost track of key

As the Plaut court noted, similar concerns motivated the
framers to include a separation of powers clause in the
federal constitution. (Plaut, supra, 514 U.S. at pp.
220-222.) One historical source noted by Plaut was the
“Address of the Council of Censors to the Freemen of the
State of Vermont,” a 1786 report concerning conduct by that
state`s legislature. Decrying instances where judgments
were “vacated by legislative acts,” the Council complained
that those actions were “an imposition on the suitor, to
give him the trouble of obtaining, after several expensive
trials, a final judgment agreeably to the known established
laws of the land;. . . .” (Plaut, supra, at p. 220, quoting
Vermont State Papers 1779-1786, pp. 531, 533 (Slade ed.
1823), internal quotation marks omitted.) Elsewhere, Plaut
cited a Vermont decision which held that a statute allowing
a party to appeal an adverse judgment after the time for
appeal had expired violated the Vermont Constitution`s
separation of powers doctrine. (Plaut, supra, at p. 224,
citing Bates v. Kimball (1824) 2 D. Chip. (Vt.) 77
(Bates).) Plaut quoted portions of Bates which held that
attempts by a legislature to “annul an existing judgment
between party and party” were a forbidden “assumption of
judicial power . . . .” (Plaut, supra, at p. 224, quoting
Bates, supra, at pp. 83, 90, internal quotation marks

Allowing the Legislature to assume such power simply
because a judgment on statute of limitations grounds was
not on the merits could have far reaching consequences.
Although the Legislature was guided by understandable
intentions in this case — recognizing the need for
an extended and revived limitations period due to the
delayed discovery of harm that is inherent in childhood
sexual abuse — the separation of powers doctrine “is
violated when an individual final judgment is legislatively
rescinded for even the very best of reasons, such as the
legislature`s genuine conviction (supported by all the law
professors in the land) that the judgment was wrong; and it
is violated 40 times over when 40 final judgments are
legislatively dissolved.” (Plaut, supra, 514 U.S. at p.
228, original italics.) While it might seem a far-fetched
notion, if the Legislature has the power to undo the class
of judgments covered by section 340.1, subdivision (c), then
it would also be free to revive any cause of action, no
matter how old, that had been dismissed under a previously
existing statute of limitations. The constitution does not
permit such an extension of legislative power.[fn9]


For the reasons set forth above, the judgment in favor of
the Bishop against appellants Howard and Perez is affirmed.
Respondent to recover its costs on appeal.

We concur:



[fn1] The Roman Catholic Bishop of Stockton (the Bishop) is
a corporate entity. Perez and Howard (collectively
appellants) also sued Stephen E. Blaire, the individual who
currently acts as the bishop, in his representative
capacity. His name was included in the caption of the
master complaint eventually adopted by appellants, but is
not included in the allegations of that complaint. The
Bishop contends that Blaire is not a proper defendant to
this action because his individual culpability is not at
issue. Appellants do not contest that point, and even
though their prior lawsuits did not name Blaire, we deem
those judgments operative as to him. Appellants also sued
the priest who they claim abused them, but he was not a
party to the demurrers that led to this appeal, and is
therefore not a party to the appeal.

[fn2] All further undesignated section references are to the
Code of Civil Procedure.

[fn3] Appellants` complaint is one of many from throughout
the state against various entities and individuals
affiliated with the Catholic Church for childhood sexual
abuse. Those cases have been coordinated in the Los Angeles
County Superior Court and the Alameda County Superior
Court. The Second District Court of Appeal has been
designated as the intermediate appellate court for the
coordinated cases. The Bay Area cases, including
appellants`, are known as The Clergy Cases III. (Cal. Rules
of Court, rule 1550(c).) The Clergy Cases III include: The
Roman Catholic Bishop of Oakland v. Superior Court
(Thatcher) (B179053); The Roman Catholic Archbishop of San
Francisco v. Superior Court (Kavanaugh) (B181245); John Doe
1 et al. v. The Roman Catholic Bishop of Oakland (B181520);
Sarah W. v. Does 1 et al. (B182149); Allyn et al. v. The
Catholic Diocese of Monterey (B182469); Perez et al. v.
Richard Roe 1 et al. (B182814); Dutra v. Eagleson
(B183033); Jane Doe 1 et al. v. James Roe 1 (B184048); The
Roman Catholic Bishop of San Francisco v. Superior Court
(John Doe 16) (B184213); George Doe v. The Roman Catholic
Bishop of Stockton (B185440); Lopes v. De La Salle Institute
(B185910); The Redemptorist Society of California, Inc. v.
Superior Court (Marley) (B186874); James Doe et al. v. The
Catholic Diocese of Monterey et al. (B187648); Dutra et al.
v. Congregation of Holy Cross et al. (B188393); Oregon
Province of the Society of Jesus v. Superior Court (Brooks)
(B189394); and James Doe 1 et al. v. The Archbishop of San
Francisco et al. (B192531).

[fn4] These provisions were later found to be
unconstitutional ex post facto laws in Stogner v.
California (2003) 539 U.S. 607. Ex post facto concerns do
not apply to civil statutes of limitation, however, and the
Legislature is free to retroactively increase their length.
(Roman Catholic Bishop of Oakland v. Superior Court (2005)
128 Cal.App.4th 1155, 1161-1162.) As we discuss below, the
separation of powers doctrine is violated when the
Legislature does so as to actions that were decided and
became final under the previous limitations period.

[fn5] Among their several arguments, appellants contend Bunn
and King are inapplicable because those decisions were
concerned with the constitutional prohibition against ex
post facto laws. Both decisions also discussed the
separation of powers issue, and Bunn framed the question to
be decided as “whether, and to what extent, the separation
of powers clause of the California Constitution [citation]
precludes application of such a refiling provision.” (Bunn,
supra, 27 Cal.4th at p. 5, fn. omitted.) Appellants also
contend Plaut is not controlling because California`s
separation of powers doctrine must be interpreted according
to California law. Because the Bunn court held that Plaut
is in conformity with California law, Plaut does help define
the contours of our separation of powers jurisprudence.
(Bunn, supra, 27 Cal.4th at pp. 22-23.)

[fn6] As appellants and amicus point out, the Legislature is
free to retroactively increase a civil statute of
limitations. (See, e.g., Lent v. Doe (1995) 40 Cal.App.4th
1177 [previous retroactive extension of section 340.1].)
None of the decisions cited by appellants and amicus
involves retroactive application of a limitations period to
revive actions that had been dismissed under an earlier,
shorter statute of limitations, however, and therefore none
applies here.

The same is true of the federal and California decisions
that the Legislature relied on when considering the
constitutionality of the 2003 revival period. The
legislative history cites four decisions to show that other
statutes reviving lapsed civil limitations periods had
survived constitutional challenges: Chase Securities Corp.
v. Donaldson (1945) 325 U.S. 304; Hellinger v. Farmers
Group, Inc. (2001) 91 Cal.App.4th 1049; Lent v. Doe, supra,
40 Cal.App.4th 1177; and Liebig v. Superior Court (1989)
209 Cal.App.3d 828. (Sen. Com. on Judiciary, Analysis of
Sen. Bill No. 1779 (2001-2002 Reg. Sess.) as amended May 2,
2002, pp. 7-8.) Chase involved a due process challenge to a
statute of limitations that changed while a federal action
was still pending. Lent concerned a due process challenge
to an earlier amendment to section 340.1, and did not
involve bringing a new action after a previous one had been
dismissed under the former limitations period. Liebig
merely adopted Lent`s reasoning in a factually similar
setting. Hellinger affirmed that the revival under section
340.9 of certain Northridge Earthquake claims that had been
dismissed under an earlier statute of limitations (§
340.9, subds. (a), (d)(1)) did not violate the defendant
insurers` constitutional due process or contract impairment
rights. None involved, or even mentioned, separation of
powers. Nothing in the legislative history suggests that the
issue ever appeared on the Legislature`s constitutional
issues radar screen, and it seems likely that the issue was
simply overlooked.

[fn7] The doctrine of res judicata precludes parties from
relitigating a cause of action that has been finally
determined by a court acting with proper jurisdiction.
(Koch, supra, 223 Cal.App.3d at p. 1595.)

[fn8] Appellants and amicus also cite several other
inapplicable decisions, only one of which dealt with a
statute of limitations issue: Mid-Century Ins. Co. v.
Superior Court (2006) 138 Cal.App.4th 769. That decision
held that section 340.9, reviving claims against earthquake
insurers due to the 1994 Northridge earthquake except for
those “litigated to finality,” applied to claims dismissed
under the earlier statute of limitations because they were
not adjudicated on the merits. It involved only a question
of statutory interpretation, and the court did not address
the separation of powers doctrine, so it is not authority
one way or the other on the subject. (Rosen v. State Farm
General Ins. Co. (2003) 30 Cal.4th 1070, 1076.)

Other decisions cited by amicus and appellants included:
Keidatz v. Albany (1952) 39 Cal.2d 826 [judgment in first
action for rescission due to fraud was based on laches and
failure to rescind promptly, after plaintiff failed to
amend, was not res judicata of new complaint properly
alleging action for fraud damages]; Kanarek v. Bugliosi
(1980) 108 Cal.App.3d 327 [defamation action based on
hardcover edition of book dismissed after demurrer
sustained on technical grounds related to pleading of
special damages; judgment not res judicata of new complaint
based on release of paperback edition, which gave rise to an
entirely new cause of action]; and Lunsford v. Kosanke
(1956) 140 Cal.App.2d 623 [trial court judgment for
defendant in breach of contract action not res judicata of
new complaint when first judgment was based on pleading
defects that led to ruling that plaintiffs could not
introduce evidence to prove their claims]. Those decisions
and the others cited by amicus and appellants involved
neither statute of limitations nor separation of powers
issues, and are therefore not authority for the issues
before us. (Rosen, supra, 30 Cal.4th at p. 1076.)

[fn9] Granting the Legislature such power because judgments
were not rendered on the merits would also extend that
power beyond cases decided on statute of limitations
grounds. For example, judgments entered when an action is
dismissed for a delay in prosecution (§ 583.420,
subd. (a)(2)(A)) are procedural, and are not on the merits.

(Gonsalves v. Bank of America Nat. Trust & Savings Ass`n
(1940) 16 Cal.2d 169, 172-173.) The same is true of
judgments entered when a demurrer is sustained with leave
to amend on the ground of uncertainty, but the plaintiff
does not file an amended complaint. (Goddard, supra, 14
Cal.2d at p. 53.)