It doesn't really matter that much for this case, but this isn't an awesome sign. It's somewhat the judicial equivalent of seeing two spouses at a party have a tiny little over something trivial. Sure, maybe they're just having a bad day. But you're sort of worried that maybe they'll eventually get divorced.
Justice Gilbert writes the opinion. He's been on the Court of Appeal for a long time -- 40 years (!) come December. He thinks the case should come out a certain way, and doesn't feel like it requires saying much to get there. His opinion is roughly five pages long -- and, remember, those pages aren't single-spaced. So it's an extremely brief opinion.
Justice Tangeman has been on the Court of Appeal for a lot less time; around a half-dozen years. He's the "new guy" in Division Six -- the other three have been there for 20, 30 and 40 years, respectively. Justice Tangeman agrees on the result, as well as the reasoning; no dispute there. But Justice Tangeman thinks it worth pointing out that the other states agree with the result reached in today's opinion. So he prepares three very short paragraphs saying so.
Now, obviously, I wasn't part of the internal decisionmaking process, but I suspect that Justice Tangeman read Justice Gilbert's draft opinion and said something like: "Hey, that's awesome, I love it. How about putting in two or three paragraphs to note that the other states come out our same way?" At which point Justice Gilbert responded with something like: "Yeah, don't feel like it." Justice Tangeman says (or at least thinks): "Hey, it's only a couple paragraphs, and it's not like your five-page opinion is overly long or anything as is. How can it hurt? Can't you just put 'em in?" At which point Justice Gilbert responds "Nope. Write 'em yourself if you feel like it."
Thus leading to today's opinion.
Justice Tangeman authors a brief concurrence that reads, in its entirety: "I concur. Because plaintiffs rely heavily on out-of-state authorities in discussing this issue of first impression in California, I believe a brief discussion of those authorities is warranted. The out-of-state authorities cited by plaintiffs hold that the statute of limitations for respondeat superior liability is the same as for the individual tortfeasor. But with the exception of D.M.S. v. Barber (Minn. 2002) 645 N.W.2d 383, the extended statutes of limitations apply where they refer to particular types of actions rather than particular types of defendants. See Kocsis v. Harrison (Neb. 1996) 543 N.W.2d 164; Lourim v. Swensen (Or. 1999) 977 P.2d 1157; Dunn v. Rockwell (W.Va. 2009) 689 S.E.2d 255. This distinction warrants the conclusion that Code of Civil Procedure section 340.3 applies only to defendants convicted of a felony and not to their employers.
The court in Doe v. BSA Corp. (Conn. 2016) 147 A.3d 104 reaches the same conclusion. In applying an extended statute of limitations for sexual abuse claims to the employing organization, the court drew a distinction between statutes “not concerned with particular types of defendants, but with providing recovery for a particular type of injury.” (Id. at p. 122.) The court noted that “almost all of the courts that have concluded that an extended statute of limitations for claims involving childhood sexual abuse does not apply to claims against nonperpetrators have been confronted with statutes that expressly limit their application to claims against perpetrators. [Citations.]” (Id. at p. 123, fn. 21.)
Because “section 340.3 was enacted as part of a statutory scheme to implement Proposition 8’s constitutional requirement that “‘“persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer”’” (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 973) and expressly limits its reach to convicted defendants, I concur in the result."
And, in turn, Justice Gilbert ends his own opinion by saying: "The concurring opinion need not be concerned with out-ofstate authority. California authority is more than sufficient to resolve the issue presented. We are pleased, however, that the out-of-state authorities cited by our colleague would agree with our result."
With Justice Yegan joining Justice Gilbert's response to the young whippersnapper.
Nothing of substantive import, of course. But when even these sort of minor disagreements can't be worked out -- just like couples who snipe at each other in public -- you can't help but wonder what else may be going on out of public view.
Because, typically, these things get worked out in a different way.
