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West Shield Investigations and Security Consultants v. Superior Court of Santa Clara County8/2/2000
rical error. (7 Witkin, supra, Judgments, § 68.)
In the record before us, we find no indication that the juvenile court's nunc pro tunc order properly corrects a clerical error. The juvenile court does not state that it originally intended to order that the statute of limitations applicable to Eymil's claims be tolled despite her emancipation, and that this ruling was inadvertently omitted from the original emancipation order due to clerical error. However, even assuming the error was clerical, nunc pro tunc correction was not proper. The court did not have the authority to make an emancipation order which preserved the minor's legal disability regarding her right to sue or be sued. As we have discussed, Family Code section 7050 does not provide for partial emancipation, and it is a mandatory consequence of emancipation that tolling ceases and statutes of limitation begin to run on the date of emancipation. Therefore, the juvenile court's nunc pro tunc order of March 23, 1999, is of no legal effect and does not operate to prevent the accrual of Eymil's causes of action as of the date of her emancipation.
D. Unruh Act Claims Are Subject to the One-Year Statute of Limitations
We turn now to petitioners' contention that Eymil's causes of action for interference with civil rights (Civ. Code, § 52.1) and sexual harassment (Civ. Code, § 51.9) are subject to the section 340, subdivision (3), one-year statute of limitations, and not, as Eymil contends, the section 338, subdivision (a), three-year limitations period for an action upon a liability created by statute. In Eymil's view, these two causes of action are based upon a liability created by statute because each cause of action alleges a violation of the Unruh Act, as codified at Civil Code section 51 et seq., and seeks civil penalties not available at common law.
No California state appellate court has ruled on the issue of the applicable statute of limitations for claims of Unruh Act violations. The only published decisions which address the issue are decisions of the federal courts. In Mitchell v. Sung (N.D.Cal. 1993) 816 F.Supp. 597, the federal district court concluded that the applicable limitations period is the section 340, subdivision (3) one-year statute of limitations for California personal injury actions. The court explained that "The Unruh Act seeks to protect against personal injury . Thus, a one-year statute of limitations period must be applied to plaintiff's Unruh Act claim." (Mitchell v. Sung, supra, 816 F.Supp. at p. 602.)
However, three subsequent federal decisions have concluded otherwise. The Ninth Circuit in Olympic Club v. Underwriters at Lloyd's London (9th Cir. 1993) 991 F.2d 497, 501, footnote 11 (hereafter, Olympic Club), stated in dicta that the statute of limitations for Unruh Act claims is the three year period for actions based on statutory liability provided by section 338, subdivision (a). In Independent Housing Services v. Fillmore Center Associates (N.D.Cal. 1993) 840 F.Supp. 1328, 1359 (hereafter, Independent Housing Services), the federal district court ruled that because there appeared to be no common law cause of action for lack of building access (as alleged in plaintiff's state statutory causes of action), the court "presumes that the three-year period established by section 338[, subdivision] (a) is the proper statute of limitations for state statutory claims other than the Unfair Business Practice Act." More recently, the federal district court, without analysis, followed Olympic Club and Independent Housing Services in stating that the applicable statute of limitations for Unruh Act claims is the three-year limitations period for state statutory claims. (Kramer v. R
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