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Case 2:21-cv-03677-FLA-MAR Document 19 Filed 08/16/21 Page 1 of 9 Page ID #:127 1 KING, HOLMES, PATERNO & SORIANO, LLP HOWARD E. KING, ESQ., STATE BAR NO. 77012 2 OHN G. SNOW, ESQ., STATE BAR NO. 280790 J JSNOW@KHPSLAW.COM 3 1900 AVENUE OF THE STARS, TWENTY-FIFTH FLOOR LOS ANGELES, CALIFORNIA 90067-4506 4 TELEPHONE: (310) 282-8989 FACSIMILE: (310) 282-8903 5 Attorneys for Defendant BRIAN 6 WARNER 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 10 11 ESMÉ BIANCO, CASE NO. 2:21-CV-3677-FLA-MAR 12 Plaintiff, DEFENDANT BRIAN WARNER’S 13 REPLY IN SUPPORT OF HIS vs. MOTION TO DISMISS THE FIRST 14 AND SECOND CAUSES OF BRIAN WARNER a/k/a MARILYN ACTION IN PLAINTIFF ESMÉ 15 MANSON, individually; MARILYN BIANCO’S AMENDED MANSON RECORDS, INC., COMPLAINT 16 Defendants. Date: August 27, 2021 17 Time: 1:30 p.m. Crtrm.: 6B 18 The Hon. Fernando L. Aenlle-Rocha 19 20 21 22 23 24 25 26 27 28 3310.093/1723716.1 Case 2:21-cv-03677-FLA-MAR Document 19 Filed 08/16/21 Page 2 of 9 Page ID #:128 1 I. INTRODUCTION 2 Plaintiff Esmé Bianco’s (“Plaintiff”) Opposition does not save her time- 3 barred claims. Instead of addressing the dispositive rules and authorities cited in 4 Defendant Brian Warner’s (“Warner”) Motion, Plaintiff dedicates half her 5 Opposition to simply repeating the sensational and untrue allegations of her First 6 Amended Complaint (“FAC”), as if to think the Court will look the other way on her 7 statute of limitations problems if she alleges conduct that is outrageous enough.1 In 8 the end, the Opposition makes three arguments to avoid dismissal. They all fail. 9 First, Plaintiff argues California Code of Civil Procedure (“C.C.P.”) section 10 340.16’s recently enacted ten-year statute of limitations for sexual assault claims is 11 retroactive because it contains language stating it “applies to any action described in 12 this subdivision (a) that is commenced on or after January 1, 2019.” Opp. at 6 13 (quoting C.C.P. § 340.16(b)(3)). However, Plaintiff neglects to mention the 14 California court of appeals has already rejected this very argument in a binding, 15 published decision. See David A. v. Superior Ct., 20 Cal. App. 4th 281, 286 (1993). 16 Second, Plaintiff argues the “delayed discovery rule” saves her claims, but she 17 fails to address—let alone distinguish—two cases prominently discussed in the 18 Motion that preclude the application of the delayed discovery rule to claims like 19 hers (specifically, DeRose v. Carswell, and Marsha V. v. Gardner). Instead, Plaintiff 20 cites, but does not discuss, Daley v. Regents of Univ. of Calif., 39 Cal. App. 5th 595 21 (2019), for the supposed general principle that “the discovery rule applies to battery 22 claims.” Opp. at 8. Daley, however, is completely off point because it concerned a 23 medical battery claim where the plaintiff alleged her doctors performed a procedure 24 she did not consent to while she was under anesthesia. Id. at 606-607. 25 26 1 Warner understands the Court is required to accept Plaintiff’s allegations as true at 27 the pleading stage, but for the reasons discussed in the Motion and this Reply, Plaintiff’s claims for sexual assault and battery are time-barred even when analyzed 28 on their face. KING, HOLMES PATERNO & , 3310.093/1723716.1 1 SORIANO, LLP REPLY ISO MOTION TO DISMISS Case 2:21-cv-03677-FLA-MAR Document 19 Filed 08/16/21 Page 3 of 9 Page ID #:129 1 Third, Plaintiff argues “equitable estoppel” should preclude Warner from 2 asserting the statute of limitations, but she does not plead facts that warrant its 3 application. Among other reasons, Plaintiff cannot avail herself of equitable estoppel 4 because she waited until ten years after the alleged conduct ceased, and eight years 5 after her last alleged contact with Warner, to file her case. Critically, Plaintiff omits 6 that the cases where the doctrine has applied “have the following in common: . . . in 7 each, the plaintiff acted promptly, almost always within a year after the . . . conduct 8 which caused the estoppel ceased.” Ortega v. Parjaro Valley Unified School Dist., 9 64 Cal. App. 4th 1023, 1047 (1998) (emphasis added). Plaintiff’s ten-year delay is 10 dispositive. 11 In short, the Opposition’s arguments lack merit. While Plaintiff’s claims may 12 be controversial, the fact that they are time-barred should not be. Plaintiff’s first and 13 second causes of action, which arise from conduct that is alleged to have occurred a 14 decade ago or longer, should be dismissed. 15 II. ARGUMENT 16 A. C.C.P. Section 340.16’s Ten-Year Statute Of Limitations Is Not 17 Retroactive 18 Warner’s Motion explained in detail why C.C.P. section 340.16’s recently 19 enacted ten-year statute of limitations is not retroactive and does not apply. In 20 Opposition, Plaintiff argues the statute is retroactive because it contains language 21 stating it “applies to any action described in this subdivision (a) that is commenced 22 on or after January 1, 2019.” Opp. at 6 (quoting C.C.P. § 340.16(b)(3)). However, 23 the California court of appeals has rejected Plaintiff’s very argument in a binding, 24 published decision she neglects to mention. See David A., 20 Cal. App. 4th at 286 25 (rejecting argument that statute stating amendment applies to “any action 26 commenced on or after January 1, 1991” revives lapsed claims because this “oblique 27 language” is insufficient to satisfy California’s requirement of “unmistakable terms” 28 of retroactivity), superseded by statute on other grounds as stated in Quarry v. Doe KING, HOLMES, PATERNO & 3310.093/1723716.1 2 SORIANO, LLP REPLY ISO MOTION TO DISMISS Case 2:21-cv-03677-FLA-MAR Document 19 Filed 08/16/21 Page 4 of 9 Page ID #:130 1 I, 53 Cal. 4th 945 (2012). 2 Plaintiff correctly states that federal courts interpreting California statutes 3 must follow California’s principles of statutory constructions (Opp. at 6), but 4 Plaintiff then ignores California’s cardinal rule that an amendment to a statute of 5 limitations period “does not revive lapsed claims in the absence of express language 6 of revival.” Quarry, 53 Cal. 4th 945 at 955. “[A] statute that is ambiguous with 7 respect to retroactive application is construed . . . to be unambiguously prospective.” 8 Id. 9 In David A., the court considered whether language in a statute stating it 10 applied to “any action commenced on or after” the effective date was sufficiently 11 “explicit and unmistakable” to evidence the legislature’s clear intent to revive lapsed 12 claims. 20 Cal. App. 4th at 286. The court held it was not and, in doing so, rejected 13 the very same argument Plaintiff makes here. Id. The California Supreme Court has 14 similarly observed that the language Plaintiff emphasizes is “insufficient to revive 15 lapsed claims.” Quarry, 53 Cal. 4th at 955 (observing that language stating new 16 statute applied to “‘any action commenced on or after January 1, 1991’ . . . did not 17 constitute express language of revival” and has been “held to be insufficient to 18 revive lapsed claims” (citing David A.)). 19 Warner’s Motion also showed that the legislative history of section 340.16 20 requires the inference that the legislature chose not to revive lapsed claims because 21 it affirmatively eliminated all references to lapsed claims from a prior version of the 22 bill. See Mot. 5-6. Plaintiff argues against this, but her arguments are again 23 foreclosed by David A., which also observed that where the legislature “eliminat[es] 24 all reference to lapsed claims . . . [t]he necessary inference is that the Legislature 25 chose not to provide for revival.” 20 Cal. App. 4th at 287. 26 In short, Plaintiff’s arguments for the retroactive application of section 340.16 27 have already been rejected by California courts and should be rejected here. As 28 Warner’s Motion explained, the California legislature knows how to include KING, HOLMES, PATERNO & 3310.093/1723716.1 3 SORIANO, LLP REPLY ISO MOTION TO DISMISS Case 2:21-cv-03677-FLA-MAR Document 19 Filed 08/16/21 Page 5 of 9 Page ID #:131 1 “express language of revival” when that is its intent. See Mot. 5 (citing Cal. Code 2 Civ. Proc. § 340.3(d)(1) (containing express language that statute “reviv[es] those 3 causes of action that had lapsed or expired under the law prior to the effective date 4 of this section”)). Section 340.16 contains no such language. The only permissible 5 conclusion is that it is not retroactive and does not apply.2 6 B. The Discovery Rule Does Not Save Plaintiff’s Claims 7 Plaintiff next argues that even when the appropriate two-year statute of 8 limitations is applied to her ten-year-old claims, her claims are not time-barred 9 because she allegedly “did not recognize the true extent of her psychological 10 injuries, nor that the actions committed by Defendant constituted sexual assault and 11 sexual battery, until meeting with other victims and speaking about her abuse in 12 2020.”3 Opp. at 8. Plaintiff thus seeks to save her claims by applying the “delayed 13 discovery rule.” 14 Again, Plaintiff’s argument fails. As the Motion explained, California courts 15 16 2 In addition to not being retroactive, section 340.16 by its plain language does not 17 apply to battery claims, further demonstrating the lack of merit in Plaintiff’s resort 18 to section 340.16 to save her battery claim from dismissal. 3 19 Plaintiff’s argument that she did not discover her claims until “meeting with other” women “in 2020” is not based on any facts alleged in the FAC and may also be 20 rejected for this reason. See Opp. at 8 (making argument with no citation to FAC). 21 More problematically, the argument is directly contradicted by testimony Plaintiff gave the California State Assembly’s Public Safety Committee on July 9, 2019, in 22 support of bill to expand the statute of limitations applicable to certain domestic 23 violence claims. Among other things, in July 2019, Plaintiff claimed she was a “domestic violence survivor,” read a pre-written statement with the same allegations 24 contained in her FAC, and testified that she had sought “legal advice” and “was told 25 . . . that it was too late.” See https://www.youtube.com/watch?v=pq2YUwQEvYk. While the Motion should be granted even without considering Plaintiff’s prior 26 testimony, the Court may properly take judicial notice of the fact of this testimony 27 when deciding the Motion. See Anschutz Corp. v. Merrill Lynch and Co. Inc., 785 F. Supp. 2d 799, 834 (N.D. Cal. 2011) (taking judicial notice of the existence of 28 congressional testimony). KING, HOLMES, PATERNO & 3310.093/1723716.1 4 SORIANO, LLP REPLY ISO MOTION TO DISMISS Case 2:21-cv-03677-FLA-MAR Document 19 Filed 08/16/21 Page 6 of 9 Page ID #:132 1 have routinely rejected the application of the delayed discovery rule to claims like 2 Plaintiff’s, which allege assault and battery committed “without the consent of 3 Plaintiff.” See Mot. 2-4, 7; FAC ¶ 32. This is because assault “by definition is 4 perceived as unconsented to and offensive” and therefore “causes harm as a matter 5 of law” at the time it occurs, precluding the application of the delayed discovery 6 rule. DeRose v. Carswell, 196 Cal. App. 3d 1011, 1015 (1987); see also Marsha V. 7 v. Gardner, 231 Cal. App. 3d 265 (1991). The Motion also showed courts have 8 repeatedly rejected Plaintiff’s argument that the delayed discovery of “the extent” of 9 one’s injuries tolls the statute of limitations because “the infliction of appreciable 10 and actual harm, however uncertain in amount, will commence the statutory 11 period.” Davies v. Krasna, 14 Cal. 3d 502, 512 (1975) (emphasis added). 12 Despite the Motion prominently discussing these cases, the Opposition fails to 13 address any of them. Instead, the Opposition cites, but does not discuss, Daley v. 14 Regents of Univ. of Calif., 39 Cal. App. 5th 595 (2019) for the supposed general 15 proposition that “the discovery rule applies to battery claims.” Opp. at 8. Daley, 16 however, is inapposite and provides no support for Plaintiff because it concerned a 17 medical battery claim, where the plaintiff alleged her doctors performed a procedure 18 she did not consent to while she was under anesthesia, which she did not discover 19 until years later. Id. at 606-607. The facts and claims alleged in Daley are nothing 20 like those alleged by Plaintiff. 21 The FAC fails to allege facts to warrant the application of the delayed 22 discovery rule. Its time-barred claims should be dismissed. 23 C. Equitable Estoppel Also Does Not Apply 24 Lastly, the Opposition argues that “equitable estoppel”—a theory not pled in 25 the FAC—should preclude Warner from asserting a statute of limitations defense. 26 This too should be rejected because the cases do not support the application of the 27 doctrine to cases like Plaintiff’s where the alleged conduct ceased ten years ago and 28 the last alleged contact between Plaintiff and Warner occurred eight years ago. See KING, HOLMES, PATERNO & 3310.093/1723716.1 5 SORIANO, LLP REPLY ISO MOTION TO DISMISS Case 2:21-cv-03677-FLA-MAR Document 19 Filed 08/16/21 Page 7 of 9 Page ID #:133 1 FAC ¶ 23. 2 “[T]he usual context for an estoppel argument is a history of negotiations 3 between the parties that leads one side to believe that claims will be settled.” 4 DeRose, 196 Cal. App. 3d at 1026. Nevertheless, allegations of threats and violence 5 can support the “plausible application of the estoppel rule” in some cases. Id. For the 6 doctrine to apply, the plaintiff must establish he or she “acted within a reasonable 7 time after the coercive effect of the threats had ended.” John R. v. Oakland Unified 8 School Dist., 48 Cal. 3d 438, 446 (1989). This is a critical requirement that will 9 preclude application of the rule if it is not met. 10 For example, in Ortega v. Parjaro Valley Unified School Dist., 64 Cal. App. 11 4th 1023 (1998), the court examined each of the cases where the doctrine applied 12 and observed they all “have the following in common: . . . in each, the plaintiff acted 13 promptly, almost always within a year after the . . . conduct which caused the 14 estoppel ceased.” Id. at 1047 (emphasis added). By contrast, here, Plaintiff did not 15 act promptly because she filed her case approximately ten years after the alleged 16 conduct ceased in 2011 and eight years after her last contact with Warner in 2013. 17 See FAC ¶¶ 22-23. 18 Cases have rejected equitable estoppel as a matter of law at the pleading stage 19 when plaintiffs have delayed as long as Plaintiff has. For example, in DeRose, the 20 trial court properly held the plaintiff “had not pleaded sufficient facts to raise the 21 issue of estoppel” when she did not file suit until thirteen years after the conduct 22 ceased. 196 Cal. App. 3d at 1026. Similarly, Marsha V. rejected the application of 23 equitable estoppel at the pleading stage when the plaintiff “did nothing to pursue her 24 claims even after [the defendant’s] conduct ceased.” 231 Cal. App. 3d at 274 25 (quoting DeRose, 196 Cal. App. 3d at 1026)); see also Butler v. San Diego Dist. 26 Attorneys Office, Case No. 01cv2087 BTM (JMA), 2006 WL 8455367, at *10 (S.D. 27 Cal. Oct. 25, 2006) (rejecting equitable estoppel where plaintiffs did not file their 28 claims “until a year and a half” after the “the circumstances giving rise to estoppel KING, HOLMES, PATERNO & 3310.093/1723716.1 6 SORIANO, LLP REPLY ISO MOTION TO DISMISS Case 2:21-cv-03677-FLA-MAR Document 19 Filed 08/16/21 Page 8 of 9 Page ID #:134 1 would have ceased”). 2 Doe v. Bakersfield City School. Dist., 136 Cal. App. 4th 556 (2006), on which 3 Plaintiff relies most heavily, does not change this analysis. First, Bakersfield did not 4 deal with a statute of limitations, but rather addressed whether the plaintiff timely 5 presented his claim to a public entity in the period required the California Tort 6 Claims Act. See id. at 566-574. Second, as with the other plaintiffs who have 7 successfully invoked the doctrine, the Bakersfield plaintiff filed his claim within 8 approximately one year of the time the conduct ceased (the conduct ceased in “2000 9 or 2001” and the plaintiff filed his claim in 2002). 136 Cal. App. 4th at 559-560. 10 The court repeated the rule that a plaintiff must act within a reasonable time after the 11 conduct ceases and held, “under the unique circumstances of th[e] case,” that the 12 trial court abused its discretion in denying the plaintiff’s petition for leave to file a 13 late tort claim. Id. at 559, 571. Thus, nothing about Bakersfield—which found a one- 14 year delay to be “reasonable” only under “unique circumstances”—supports 15 applying equitable estoppel here, where the conduct ceased ten years ago, and 16 Plaintiff has not had contact with Warner for the past eight years. 17 Simply put, as a matter of law, Plaintiff has not alleged sufficient facts to 18 avail herself of equitable estoppel. In addition to her ten-year delay after the alleged 19 conduct stopped, which alone is dispositive, Plaintiff has not alleged facts showing 20 Warner did anything after their relationship ended in 2011 to prevent her from filing 21 her case. Plaintiff does not allege Warner threatened her at any time after 2011. She 22 does not allege Warner even contacted her after 2013, or vice versa. Moreover, any 23 claim Plaintiff feared Warner after the relationship ended would be implausible 24 because she alleges “[i]n 2013, [she] attended one of Mr. Warner’s shows in Las 25 Vegas” and sought him out afterward. FAC ¶ 23; see also Bell Atlantic Corp. v. 26 Twombly, 550 U.S. 544, 570 (2007) (a complaint must proffer sufficient “facts to 27 state a claim to relief that is plausible on its face”) (emphasis added). Finally, 28 Plaintiff’s argument that she delayed because she feared Warner would “withdraw KING, HOLMES, PATERNO & 3310.093/1723716.1 7 SORIANO, LLP REPLY ISO MOTION TO DISMISS Case 2:21-cv-03677-FLA-MAR Document 19 Filed 08/16/21 Page 9 of 9 Page ID #:135 1 his support for her visa process” (Opp. at 13) conflicts with her allegation that she is 2 now “a citizen of the United States of America.” FAC ¶ 10. Presumably, Plaintiff 3 did not become a citizen the same day she filed her case. At a minimum, Plaintiff 4 would need to plead facts establishing when her visa-status ended and her 5 citizenship began before she can argue she acted within a reasonable time. See 6 Union Carbide Corp. v. Superior Ct., 36 Cal. 3d 15, 25 (1984) (“if on the face of the 7 complaint the action appears barred by the statute of limitations, plaintiff has an 8 obligation to anticipate the defense and plead facts to negative the bar”).4 9 III. CONCLUSION 10 Plaintiff’s first and second causes of action are time-barred. Because Plaintiff 11 has not proffered any facts that would save her time-barred claims on amendment, 12 Warner respectfully requests that they be dismissed with prejudice. See Haaland v. 13 Garfield Beach CVS, LLC, No. 18-cv-011150-JAK-MRWx, 2018 WL 5086493, at 14 *3–4 (C.D. Cal. June 6, 2018) (dismissing time-barred claim with prejudice when 15 “the evidence proffered in opposition to the Motion” was insufficient to toll the 16 statute of limitations). 17 18 DATED: August 16, 2021 KING, HOLMES, PATERNO & SORIANO, LLP 19 20 21 By: /s/ Howard E. King 22 HOWARD E. KING 23 Attorneys for Defendant BRIAN WARNER 24 25 26 4 27 Plaintiff’s July 9, 2019 testimony to the California State Assembly’s Public Safety Committee, discussed in footnote 2 above, further establishes her delay in waiting 28 until April 30, 2021 to file this case was not reasonable. KING, HOLMES PATERNO & , 3310.093/1723716.1 8 SORIANO, LLP REPLY ISO MOTION TO DISMISS