William Adrian Shubeck

Sources

1. Kathleen B. v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, Casetext, January 9, 2025.

• 1. Kathleen B. v. Corporation of President of Church of Jesus Christ of Latter-Day Saints

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  Opinion

  NOT TO BE PUBLISHED

  APPEAL from the Superior Court of San Bernardino County. Frank Gafkowski, Jr., Judge. (Retired judge of the former Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super.Ct.No. SCVSS111445

  Tomlinson, Nydam & Prince and Timothy P. Prince for Plaintiff and Appellant.

  Mundell, Odlum & Haws, Karl N. Haws and Bronwyn W. Petersen for Defendants and Respondents.

  OPINION

  King, J.

  I. INTRODUCTION

  Kathleen B. (plaintiff), presently 62 years of age, appeals from a judgment in favor of Church defendants on plaintiff’s complaint, in which she sought to hold Church defendants liable for damages she suffered as a result of “childhood sexual abuse.” The complaint was filed under the provisions of Code of Civil Procedure section 340.1, subdivisions (b) and (c), which allowed that time-barred claims for “childhood sexual abuse” could be filed within a one-year revival period.

  Church defendants are (1) The Corporation of the President of The Church of Jesus Christ of Latter-day Saints and (2) The Corporation of the President of the San Bernardino California Stake, The Church of Jesus Christ of Latter-day Saints. For ease of reference, we refer to these defendants and respondents collectively as Church defendants.

  All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

  Section 340.1, amended in 2002, allowed a one-year window, January 1, 2003 through December 31, 2003, for the filing of sexual abuse claims which were otherwise time-barred. Under the provisions of the amendment, entities such as Church defendants could be timely sued only if they “knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent,” and failed to take reasonable precautions to prevent similar future conduct. (§ 340.1, subds. (b), (c).)

  Plaintifff’s underlying complaint alleges that, from late 1961 through 1966, plaintiff, at the behest of and with the knowledge of Church defendants, was the victim of sexual abuse by William Shubeck. She contends that in 1961 and 1962, while 15 years of age, she was raped by 18-year-old Shubeck, who was then a priest with The Church of Jesus Christ of Latter-day Saints (the LDS Church). She further alleges that the LDS Church, in an attempt to cover up the incidents, forced her to marry Shubeck. At the time of the 1962 marriage, plaintiff was 15 years old. She asserts that during the ensuing five-year marriage she was continually subjected to sexual and physical abuse at the hands of Shubeck.

  The judgment from which plaintiff appeals was entered in December 2007 following this court’s issuance of a peremptory writ of mandate directing the trial court to set aside its order denying Church defendants’ motion for summary judgment on plaintiff’s complaint, and issued a new order granting the motion. On July 16, 2007, we issued a written decision in the writ proceeding (case No. E042008) concluding that the motion for summary judgment had merit because plaintiff’s claims against Church defendants did not meet the requirements of section 340.1, subdivision (b)(2) and, as a matter of law, were time-barred.

  On appeal, plaintiff, in essence, contends that the judgment entered pursuant to our direction was wrong. She argues that Shubeck gained access to plaintiff as a result of his position in the LDS Church. Thereafter, and with full knowledge of his two rapes, the LDS Church facilitated the further sexual abuse of plaintiff by having plaintiff and Shubeck get married. Plaintiff’s position is that at all times the LDS Church had sufficient control over Shubeck such that it could have prevented the conduct. Based on these contentions, plaintiff submits that her claim of “childhood sexual abuse” was not time-barred.

  Church defendants argue that plaintiff may not appeal from the grant of summary judgment and/or denial of the motion for new trial, because this court previously entered a peremptory writ on the merits, and plaintiff failed to seek review of that decision; assuming plaintiff may appeal the entry of judgment, her appeal was not timely filed and the doctrines of law of the case and res judicata preclude this court’s reconsideration. Lastly, Church defendants submit that, on its merits, the trial court’s entry of summary judgment was proper.

  We conclude that plaintiff’s notice of appeal was timely filed. However, all her claims on this appeal were addressed in this court’s written decision in the writ proceeding, following notice to plaintiff of our intention to issue a preemptory writ, and plaintiff’s opposition. Thus, plaintiff’s claims on this appeal are barred by the doctrine of res judicata, and the law of the case doctrine bars further consideration of her claims on this appeal. Nevertheless, in this opinion we further explain why plaintiff’s claims against Church defendants fail to satisfy the requirements of section 340.1, subdivision (b)(2), as a matter of law, based on the undisputed evidence adduced on Church defendants’ motion for summary judgment.

  II. SECTION 340.1

  Section 340.1 establishes the time within which a plaintiff may bring an action for damages suffered as a result of “childhood sexual abuse.” It addresses the time for commencement of the action, not only against the individual perpetrator of the abuse (§ 340.1, subd. (a)(1)), but also against third persons or entities who did not perpetrate the abuse but who are liable for its resulting damages based on a duty of care owed to the plaintiff (id., subd. (a)(2) & (3)).

  As against nonperpetrator defendants, such as Church defendants, the action may not be commenced on or after the plaintiff’s 26th birthday (§ 340.1, subd. (b)(1)), unless the three requirements of subdivision (b)(2) are satisfied. “[Section 340.1,] subdivision (b)(2) extends past a plaintiff’s 26th birthday claims against a nonperpetrator defendant [1] who is or was in a specified relationship with the perpetrator—‘employee, volunteer, representative, or agent’—and who, [2] ‘knew or had reason to know, or was otherwise on notice’ of the perpetrator’s ‘unlawful sexual conduct’ and [3] ‘failed to take’ preventative measures to ‘avoid acts of unlawful sexual conduct in the future’ by that perpetrator.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544 (Doe).)

  Specifically, section 340.1, subdivision (b)(2) provides that an action against a third party can be brought in a timely manner “if the person or entity knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment....”

  “[T]he Legislature’s goal in enacting [section 340.1,] subdivision (b)(2) [by a 2002 amendment to section 340.1] was to expand the ability of victims of childhood abuse to sue those responsible for the injuries they sustained as a result of that abuse.” (Doe, supra, 42 Cal.4th at p. 545.) Its purpose “is to target ‘third party defendants who, by virtue of certain specified relationships to the perpetrator (i.e., employee, volunteer, representative, or agent), could have employed safeguards to prevent the sexual assault. It requires the sexual conduct to have arisen through an exploitation of a relationship over which the third party has some control.’ [Citation.]” (Id. at p. 543.)

  Furthermore, section 340.1, subdivision (c) provides for the revival, during the year 2003, of claims against nonperpetrator third parties described in subdivision (a)(2) or (3), that meet the requirements of subdivision (b)(2) but that are otherwise time-barred as of January 1, 2003. In other words, a plaintiff’s claims against a nonperpetrator third party which are barred by the applicable limitations period as of January 1, 2003, are revived and may be filed during 2003, provided the requirements of subdivision (b)(2) are met.

  Plaintiff was over age 26 when she filed the present action in 2003. At that time, her claims against Church defendants, which arose during the 1960’s, were barred by the applicable limitations periods. Thus, for plaintiff to have availed herself of the 2003 revival period provided by section 340.1, subdivisions (b)(2) and (c), she was required to plead and prove the predicate facts set forth in subdivision (b)(2). (Doe, supra, 42 Cal.4that pp. 549-550.)

  III. PROCEDURAL HISTORY

  In August 2005, Church defendants moved for summary judgment. They argued: (1) the applicable limitations periods on plaintiff’s claims for childhood sexual abuse had expired, (2) there was no evidence they knew or should have known of the alleged sexual abuse by Shubeck, (3) they did not owe a duty to plaintiff, and (4) plaintiff possessed no evidence of any negligent or intentional misrepresentation on their part.

  In December 2006, the trial court denied the motion. It found triable issues of fact: Shubeck’s agency relationship with the LDS Church, the LDS Church’s knowledge of Shubeck’s sexual abuse, and its failure to take reasonable steps to safeguard plaintiff. The trial court further found that the LDS Church was in a special relationship with plaintiff and therefore owed her a duty of care.

  Also in December 2006, Church defendants petitioned this court for a writ of mandate/prohibition. They sought a writ directing the trial court to vacate its order denying their motion for summary judgment and enter a new order granting their motion. This court notified plaintiff of its intention to issue “a peremptory writ” unless good cause was shown, and invited plaintiff to file a response to the petition. Plaintiff filed a verified opposition with supporting points and authorites.

  We have granted plaintiff’s motion that we take judicial notice of the record in the writ proceedings in case No. E042008.

  On July 16, 2007, we issued a written decision in the writ proceeding, concluding the motion for summary judgment was erroneously denied. In the decision, we reasoned there was no evidence that Church defendants knew or were otherwise on notice of the two rapes by Shubeck prior to his marriage to plaintiff. We further concluded that Church defendants could not be liable for the alleged sexual abuse that occurred during the marriage because they had no power to prevent that conduct. Lastly, we concluded that Church defendants could not be liable for encouraging the marriage of plaintiff to Shubeck based on the freedom of religion clauses of the state and federal Constitutions.

  On September 19, 2007, we issued a peremptory writ directing the trial court to set aside its order denying the motion and issue a new order granting it. The trial court issued the new order granting the motion. On December 17, 2007, a “first amended judgment” was entered in favor of Church defendants. On January 2, 2008, Church defendants served plaintiff with “notice of entry” of the judgment. On January 17, plaintiff filed and served a “notice of intention to move for new trial.” After a hearing on February 20, the trial court denied the motion, observing it was without jurisdiction to consider it in view of this court’s written decision in the writ proceeding.

  Plaintiff appeals from the first amended judgment. Church defendants have filed a motion to dismiss the present appeal. We reserved ruling on the motion for consideration with this appeal.

  IV. DISCUSSION

  We first address Church defendants’ motion to dismiss the present appeal. Church defendants argue this court is without jurisdiction to consider the present appeal for two reasons: (1) plaintiff’s notice of appeal was untimely filed, and (2) the doctrines of “res judicata and/or law of the case” bar plaintiff’s claims on this appeal. For the reasons we explain, we conclude that plaintiff’s notice of appeal was timely filed.

  We agree, however, that plaintiff’s claims raised on this appeal are barred by the doctrine of res judicata in view of our written decision in the writ proceeding. Similarly, the law of the case doctrine precludes our reconsideration of the section 340.1, subdivision (b) issues on this appeal.

  A. Plaintiff’s Notice of Appeal Was Timely Filed

  Plaintiff’s notice of appeal was required to be filed no later than 60 days from the date Church defendants served her with the notice of entry of the first amended judgment (Cal. Rules of Court, rule 8.104(a)(2)), unless plaintiff filed and served “a valid notice of intention to move for a new trial” (rule 8.108(b)). In that event, her notice of appeal was required to be filed 30 days after the date Church defendants served her with “notice of entry” of the order denying her motion for a new trial. (Ibid.)

  All further references to rules are to the California Rules of Court.

  Plaintiff’s notice of appeal was filed on March 6, 2008, 64 days after Church defendants served her with “notice of entry” of the first amended judgment, but only six days after she was served, on February 29, with “notice of entry” of the order denying her motion for a new trial. Thus, if plaintiff’s “notice of intention to move for a new trial” was valid, her notice of appeal was timely filed.

  Church defendants argue that plaintiff’s “notice of intention” was invalid because she “had no right to seek a new trial.” They reason that the trial court was obligated to comply with the writ and enter a new order granting their motion for summary judgment. While this may be so, it does not follow that plaintiff had no right to move for a new trial. “A motion for a new trial is appropriate following an order granting summary judgment. [Citations.] This is so, even though, strictly speaking, ‘summary judgment... is a determination that there shall be no trial at all.’ [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858 (Aguilar).) A motion for new trial may seek reversal of an order granting summary judgment on any of the grounds specified in section 657, including “error in law.” (§ 657, cl. 7; Tortorella v. Castro (2006) 140 Cal.App.4th 1, 10-13 [error in law lies where evidence submitted by party opposing motion for summary judgment raises triable issue of fact].)

  Church defendants cite no authority for the proposition that this court’s issuance of the writ following the writ proceedings deprived plaintiff of her “right” to move for a new trial. To the contrary, plaintiff had a right to move for a new trial following the trial court’s entry of the new order granting Church defendants’ motion for summary judgment, just as if the trial court had granted the motion in the first instance. Moreover, Church defendants are conflating the validity or the merits of plaintiff’s motion for a new trial with the validity of her “notice of intention to move for a new trial.” In order to avail herself of the extended filing period of rule 8.108(b), plaintiff was not required to file a meritorious or valid motion for a new trial; she was only required to file a valid notice of intention. (Rule 8.108(b).)

  The validity of a notice of intention is governed by section 659, which states what the notice must contain and when it must be filed and served. “The party intending to move for a new trial” must file and serve “a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both,” within specified time periods. (§ 659.) Plaintiff’s notice of intention met each of these requirements. It was timely filed and served, stated the grounds upon which it was based, and stated it would be made upon the minutes of the court and affidavits. Nothing more was required. (Advisory Comm. com., 23 pt. 2 West’s Ann. Codes, Court Rules (2006 ed.) foll. rule 8.108, p. 488 [the word “valid” as used in rule 8.108 “means only that the motion or notice complies with all procedural requirements; it does not mean that the motion or notice must also be substantively meritorious.”].) Because plaintiff’s notice of intention met the procedural requirements of section 659, it was valid, and her notice of appeal was therefore timely filed.

  Plaintiff’s notice of intention stated it was based on “error in law” (§ 657, cl. 7), specifically, whether (1) plaintiff’s complaint was filed “within three years of discovering that her psychological injury occurring after the age of majority was caused by childhood sexual abuse” (§ 340.1, subd. (a)), and (2) “delayed discovery of the cause of [p]laintiff’s psychological injury.” The notice further stated it was not based on “the 2003 revival provisions of section 340.1[, subdivision] (c).”

  Church defendants further claim that plaintiff’s notice of intention was “invalid and jurisdictionally defective from the start” because she filed her memorandum of points and authorities 14 days, rather than the required 10 days, after the date she filed the notice (rule 3.1600(a)), and she filed no supporting declarations. Not so. Although, as Church defendants correctly observe, the procedures for new trial motions set forth in sections 655 to 662.5 must be “strictly followed” and a court has no jurisdiction to order a new trial except as provided in those statutes (Pacific Trends Lamp & Lighting Products, Inc. v. J. White, Inc. (1998) 65 Cal.App.4th 1131, 1135), this does not mean that plaintiff’s late-filed memorandum, or her failure to file supporting declarations, rendered her notice of intention invalid. Plaintiff’s appeal was timely filed.

  Rule 3.1600(b) provides that the trial court may deny the motion for new trial without hearing on the merits, in the event the moving party fails to serve and file the memorandum within the 10-day period prescribed in rule 3.1600(a).

  B. Plaintiff’s Claims on This Appeal Are Barred By the Doctrine of Res Judicata, and the Law of the Case Doctrine Bars Further Reconsideration of the Claims

  In both their motion to dismiss and respondents’ brief, Church defendants further assert that plaintiff’s claims on this appeal are barred by the doctrines of “res judicata and/or law of the case” in view of our written decision in the writ proceeding. We agree.

  First, plaintiff’s claims on this appeal are barred by the doctrine of res judicata. In her opening brief, plaintiff argues that her claims against Church defendants were timely commenced in 2003 because the claims satisfy the requirements of subdivision (b) of section 340.1. But our written decision in the writ proceeding, which was issued following notice to plaintiff and plaintiff’s opposition, constitutes a final decision on the merits of the section 340.1, subdivision (b) issues. As such, the written decision bars relitigation of the subdivision (b) issues on this appeal. (See Kowis v. Howard (1992) 3 Cal.4th 888, 892-893; Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 901, disapproved on other grounds in Kowis v. Howard, supra, at pp. 896-899.)

  The written decision became final in this court 30 days after it was filed (rule 8.490), and plaintiff did not petition the state Supreme Court for review (rule 8.500(e)(1)).

  Our prior decision also constitutes law of the case and bars our reconsideration of the section 340.1, subdivision (b) issues on this appeal. (Kowis v. Howard, supra, 3 Cal.4th at p. 891.) The doctrine of law of the case holds that a principle or rule of law stated in an appellate court opinion, that is “necessary” to the court’s decision, is binding upon the parties and must be followed in all subsequent proceedings in the action, whether in the trial court or on a later appeal, even to the state Supreme Court. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) Although the doctrine has not been followed when its application would result in an unjust decision, “e.g., where there has been a manifest misapplication of existing principles resulting in substantial injustice, or where the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations” (id. at pp. 491-492), the unjust decision exception does not apply in the present case. Even though our reconsideration is barred by the application of res judicata and law of the case, we now proceed to again address the appropriateness of the grant of summary judgment.

  C. Plaintiff’s Claims Against Church Defendants Are Time-barred Because They Do Not Meet the Requirements of Section 340.1, Subdivision (b)

  The primary thrust of plaintiff’s arguments on this appeal is that her claims against Church defendants met the requirements of section 340.1, subdivision (b), and that her complaint against Church defendants was therefore timely. For the reasons explained in our prior decision in the writ proceeding and further explained below, we disagree.

  1. Standard of Review

  Summary judgment is properly granted when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar, supra, 25 Cal.4th at p. 843.)

  A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s causes of action, or shows that one or more elements of each cause of action cannot be established. The defendant must support its motion with affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. (§ 437c, subds. (b), (o)(2); Aguilar, supra, 25 Cal.4th at p. 849.)

  A moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party plaintiff to demonstrate the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) The plaintiff may not rely upon the mere allegations in its complaint, but must set forth “specific facts” showing that a triable issue exists. (§ 437c, subd. (p)(2).) From commencement to conclusion, however, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Aguilar, supra, at p. 850.)

  “In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. [Citations.] The court must consider all evidence set forth in the parties’ papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)” (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)

  “On appeal, this court exercises its independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. [Citations.] We examine the evidence and independently determine its effect. [Citation.] We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. [Citation.]” (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn., supra, 92 Cal.App.4th at p. 1261.)

  2. Applicable Law

  As stated: “[Section 340.1,] subdivision (b)(2) create[s] three conditions that must be met before it applies to a particular case: (1) the nonperpetrator defendant ‘knew or had reason to know, or was otherwise on notice’; (2) that the perpetrator—‘an employee, volunteer, representative, or agent’—had engaged in ‘unlawful sexual conduct’; and (3) ‘failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment.’” (Doe, supra, 42 Cal.4th at p. 545.)

  3. Underlying Facts

  In support of their motion for summary judgment, Church defendants submitted the declaration of Douglas Glauser. Mr. Glauser indicated that he is a lifetime member of the LDS Church and has held various leadership positions in the LDS Church. Worldwide, the LDS Church includes 27,000 congregations/wards, each consisting of between 200 and 700 members. Each ward is led by a part-time lay bishop. The bishop, in conjunction with two lay assistants, are the spiritual leaders of the ward. “[B]ishops counsel congregation members in matters affecting their spiritual well-being, including personal matters and matters involving sin or transgression in the eyes of the Church.”

  Under the LDS Church doctrine, observant males 12 years or older are ordained to the “priesthood.” As a member of the priesthood they assist with the sacrament of the Lord’s Supper. They also participate in sporting events, scouting, and other organized service projects, etc., with a goal of helping them resist temptation and hopefully prepare to participate in the church’s clergy at some future date. “Priests are not ministers or pastors of congregations. They have no role whatsoever in the LDS Church’s clergy, do not supervise or care for others, are not at all involved in administering [to] the congregation, and, according to Church doctrine, are not entitled to direct the actions of others or receive revelation from God for the benefit of others.... [T]he designation does not confer any special status or respect upon the boy.”

  At her deposition, plaintiff testified that she was a member of the LDS Church from the time of birth. She was taught that the Mormon church was the only true church and that she would be punished for all eternity if she did not obey. She was also taught that members of the priesthood were chosen by God. She was to obey the priesthood because they spoke for God. She first met Shubeck in September 1961, the day he raped her. This was the first time she had seen him. After opening the front door of her house pursuant to a knock, Shubeck pushed his way in and announced that he had a divine revelation from God and that she was to be his wife. He twisted her hand and arm behind her back, told her his name, and thereafter took her into a bedroom and raped her. At that time, she did not know whether or not he was connected with the LDS Church. She believed, however, that he was a member of the priesthood because he had said he had a revelation from God. She offered no resistance to the rape because she knew that she was not supposed to disobey members of the priesthood. She was frightened, but knew that if she did not obey, God would punish her. During the incident, Shubeck told her not to tell anyone. Based on her training, beliefs and what he told her, she never told anyone about the rape.

  After this incident and before the second rape, plaintiff saw Shubeck every Sunday at church; he was sitting in front of the congregation preparing and blessing sacrament. In January 1962, plaintiff was inside her garage when Shubeck snuck up from behind, grabbed her arm, and pulled it up behind her back; she was taken into the house and raped. She did not call out for help because she was taught not to disobey a member of the priesthood. She did not resist because she believed when members of the priesthood had revelations they spoke for God. After the rape and as Shubeck was leaving she told him to stay away because she was pregnant. She did not know whether or not she was pregnant; she simply said that to scare him away.

  As plaintiff returned home from school the next day, Bishop Donald Hanson was sitting in his car in her driveway. He told her and her mother that he had a divine revelation from God that plaintiff was pregnant and that he would marry her to Shubeck the following Monday. Bishop Hanson told her mother not to allow plaintiff out of her room and not to let her use the telephone or talk to anybody until the wedding on Monday. Plaintiff does not remember either she or her mother saying anything. Between the time Bishop Hanson left and the time of the marriage three days later, she stayed in her bedroom. Her mother tied a rope guide between the bathroom doorknob and plaintiff’s bedroom doorknob so that plaintiff could not get out. She was told by her mother to knock on the door when she had to go to the bathroom. Her mother brought her some cardboard boxes so that she could pack her belongings. During the weekend, her mother told her that Bishop Hanson had telephoned and said that if plaintiff wanted a dress for the wedding, her mother could take her shopping on Monday during school time. She had no conversations with her mother or stepfather about the marriage. She never told her mother she didn’t want to get married.

  Plaintiff believes her mother was forced to allow the marriage. Her mother trusted Bishop Hanson totally. The church was her life. Her mother was told by Bishop Hanson that she would be punished eternally if plaintiff did not marry Shubeck.

  The wedding was during the night time. Bishop Hanson, her mother, stepfather, and William Shubeck’s parents were there. Her stepfather, Massimo Ciampanella, signed the wedding certificate as a witness.

  Following the marriage, plaintiff periodically had conversations with Bishop Hanson. During these conversations, she never told him how she was getting along. In 1965, plaintiff, pregnant with her second child, left Shubeck. Bishop Hanson told her that she had to go back to Shubeck or both children would be taken away. She was told that her eternal salvation was in jeopardy. Believing that he was still the ecclesiastical leader and had authority over her, she went back with Shubeck. In 1966, she left and filed for divorce. After she left the second time, she had another conversation with Bishop Hanson, wherein he told her that her eternal salvation was in jeopardy; she told him to drop dead.

  By way of declaration, Shubeck acknowledged engaging in sexual relations with plaintiff prior to their marriage; however, he denied sexually assaulting her.

  For plaintiff to avail herself of the extended period provided by section 340.1, subdivision (b)(2), and avoid application of subdivision (b)(1) (filing the action by one’s 26th birthday), she must plead and prove the predicate facts set forth in subdivision (b)(2). (See Doe, supra, 42 Cal.4th at pp. 549-550.) As stated: “[Section 340.1,] subdivision (b)(2) create[s] three conditions that must be met before it applies to a particular case: (1) the nonperpetrator defendant ‘knew or had reason to know, or was otherwise on notice’; (2) that the perpetrator—‘an employee, volunteer, representative, or agent’—had engaged in ‘unlawful sexual conduct’; and (3) ‘failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment.’” (Id. at p. 545.)

  In applying these three criteria to the evidence presented at the motion for summary judgment, we conclude that in one or more areas plaintiff has failed to demonstrate the existence of triable issues of fact. As previously indicated, plaintiff seeks to impose liability on Church defendants for the alleged: (1) two rapes by Shubeck occurring prior to the January 1962 marriage, (2) ongoing sexual abuse during the approximate five-year marriage, and (3) forcing of plaintiff to marry Shubeck for purposes of covering up the two rapes, thereby exposing her to further sexual abuse. First, we find there is no evidence that Church defendants were on actual or constructive notice of sexual abuse by Shubeck before the alleged two rapes by Shubeck. Second, we conclude that within the meaning of the statute there is no evidence of “unlawful sexual conduct” by Shubeck during the course of the marriage. And last, we find that the alleged forced marriage in and of itself is not conduct falling under the ambit of section 340.1. In that plaintiff’s complaint was filed well after she attained the age of 26, and based on the above conclusions, the present matter is time-barred under section 340.1, subdivision (b)(1).

  (a) Shubeck’s Alleged Rapes in September 1961 and January 1962

  There clearly is a triable issue of fact as to whether Shubeck raped plaintiff in September 1961 and January 1962. In support of the motion for summary judgment, Church defendants submitted the declaration of Shubeck, wherein he stated that at no time did he sexually assault plaintiff. The deposition testimony of plaintiff is diametrically opposed.

  As to Church defendants, however, there must also exist a triable issue of fact as to Church defendants’ knowledge of antecedent conduct by Shubeck. That is, for Church defendants to be liable for the two rapes committed by Shubeck prior to the marriage, Church defendants must be on notice of prior unlawful sexual conduct by Shubeck. “[T]he knowledge or notice requirement refers to knowledge or notice of past unlawful conduct by the individual [Shubeck] currently accused of other unlawful sexual conduct.... [¶]... [Section 340.1,] subdivision (b)(2) requires the victim to establish that the nonperpetrator defendant had actual knowledge, constructive knowledge (as measured by the reason to know standard), or was otherwise on notice that the perpetrator had engaged in past unlawful sexual conduct with a minor and, possessed of this knowledge or notice, failed to take reasonable preventative steps or implement reasonable safeguards to avoid acts of future unlawful sexual conduct by the perpetrator.” (Doe, supra, 42 Cal.4th at p. 549.) In the present record there is no evidence that prior to September 1961 and/or January 1962 Church defendants were on notice of Shubeck engaging in unlawful sexual conduct with plaintiff or any other individual. Thus to the extent plaintiff seeks to impose liability on Church defendants as a result of these two alleged rapes, the matter is time-barred.

  (b) Alleged Unlawful Sexual Conduct During the Marriage of Plaintiff and Shubeck

  Plaintiff married Shubeck when she was 15 years old and he was 18. Plaintiff argues that, during her marriage to Shubeck, she was sexually and physically abused. Initially, we find the record contains no evidence that during the marriage Shubeck engaged in “unlawful sexual conduct” as defined by section 340.1. Additionally, there is no evidence that during the marriage Church defendants had the ability to implement reasonable safeguards to protect plaintiff from Shubeck’s conduct as an “employee, volunteer, representative or agent.”

  Section 340.1, sudivision (b)(2) provides that an entity on notice of unlawful sexual conduct by an employee, volunteer, representative or agent may be liable for failing to take steps or precautions “to avoid acts of unlawful sexual conduct in the future by that person[.]” (Italics added.) While our record contains no evidence that prior to the marriage Church defendants knew that Shubeck had raped plaintiff, a strong inference exists that they knew of sexual intercourse between the two. As testified to by plaintiff, the day following the second rape and after Shubeck had been told by plaintiff that she was pregnant, Bishop Hanson showed up on her doorstep with a revelation from God. The clear inference is that Shubeck or someone associated with him told Bishop Hanson that, at a minimum, Shubeck had had intercourse with plaintiff and that she was pregnant. While Church defendants were thus arguably on notice of this past “unlawful sexual conduct,” there is nothing in the record to legally support that “unlawful sexual conduct” occurred in the future for which Church defendants could be held responsible. To the extent future sexual conduct occurred, it was during marriage and thus lawful.

  The acts which comprise “unlawful sexual conduct,” for purposes of section 340.1, are enumerated in subdivision (e) of said section. (See Doe, supra, 42 Cal.4th at pp. 545-546.)

  Contrary to plaintiff’s position that the marriage was void, and thus all of the postmarriage sexual conduct was unlawful, we believe the record, in conjunction with the law, demonstrates the existence of a valid marriage, and at worst, a voidable marriage. At the time of their marriage, a female under the age of 16 with a filed written consent of a parent or guardian could legally marry. A license involving a female under the age of 18 could not be issued until all necessary consents were on file with the county. Based on the marriage certificate and the averment by the county clerk that the “[r]equired consents for the issuance of this license are on title,” it would appear that a written consent of plaintiff’s parent or guardian was filed and that plaintiff’s marriage to Shubeck was legally valid. And, if not, the marriage was nothing other than “voidable.” (See Johnson v. Alexander (1918) 39 Cal.App. 177; Campbell v. Campbell (1926) 78 Cal.App. 745; Civ. Code § 82 (as amended by Stats. 1957, ch. 1299, § 2, p. 2618).) Until annulled, a voidable marriage is of full force and effect. (See Greene v. Williams (1970) 9 Cal.App.3d 559, 561; Coats v. Coats (1911) 160 Cal. 671.) Thus, under Penal Code section 261, the crime of rape is not present when the sexual intercourse is accomplished with the spouse of the perpetrator. Based on these facts and the existent law, there is no evidence that following the marriage Shubeck engaged in any “unlawful sexual conduct” within the meaning of Code of Civil Procedure section 340.1.

  Civil Code section 56 provided that “any male under the age of 18 years and any female under the age of 16 years, with the consent in writing of the parents of the person under age, or one of such parents, or of his or her guardian, where such written consent is filed with the clerk issuing the marriage license, as provided in Section 69 of the Civil Code and where, after such showing as the superior court may require an order of said superior court is made, granting permission to said person to marry, is capable of consenting to and consummating marriage.” (Stats. 1945, ch. 1145, § 1, pp. 2185-2186.)

  Furthermore, there is no evidence that following the marriage, Shubeck continued in any role with the LDS Church (i.e., employee, volunteer, representative or agent) or that the alleged abuse arose out of a relationship with the LDS Church over which the Church defendants had some control, as opposed to that of simply husband and wife. (See Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910 [where alleged sexual abuse was a result of the parental relationship, not any employment relationship].) For all of these reasons, we find no triable issues bringing plaintiff’s action within the ambit of section 340.1, subdivision (b)(2) relative to the alleged sexual conduct of Shubeck following the marriage. The claim based on this conduct is therefore time-barred under section 340.1, subdivision (b)(1).

  (c) The Marriage of Plaintiff to Shubeck

  Lastly, plaintiff submits that the wedding was a sham, intended to cover up past sexual misconduct of Shubeck, and/or facilitate his future sexual abuse of plaintiff. In that we have found there is no evidence that unlawful sexual misconduct occurred subsequent to the marriage, there is nothing actionable about the marriage itself. Church defendants’ facilitation of the marriage simply does not fall within the parameters of section 340.1

  V. DISPOSITION

  The judgment is affirmed. Respondents shall recover their costs on appeal.

  We concur: Richli, Acting P.J., Gaut, J.

  The delayed discovery provisions of section 340.1, subdivision (a) apply only to actions described in subdivision (a)(1), that is, “[a]n action against any person for committing an act of childhood sexual abuse,” and do not apply to actions against a nonperpetrator for damages resulting from childhood sexual abuse. Section 340.1, subdivision (b)(1) states: “No action described in paragraph (2) or (3) of subdivision (a) may be commenced on or after the plaintiff’s 26th birthday.” Subdivision (a)(2) and (3) describe actions against nonperpetrators. Thus, subdivision (b)(1), read consistently with subdivision (a), prohibits reliance upon the delayed discovery provision of subdivision (a) in an action against a nonperpetrator.

  The present record is relatively void of any evidence whatsoever dealing with the sexual conduct of plaintiff and Shubeck following their marriage. While the complaint addresses numerous sexual acts, the trial court sustained an objection by Church defendants as to the appropriateness of using the complaint as evidentiary support for plaintiff’s opposition. Nowhere in the deposition of plaintiff does she address her sexual activities with Shubeck after they were married. In his declaration, Shubeck is relatively unspecific, only indicating that during his five-year marriage to plaintiff, he did not sexually assault her. The only evidence of sexual activity between plaintiff and Shubeck following their marriage is that at least one child was conceived. Penal Code section 262 was not added by statute until 1979. (Stats. 1979, ch. 994, § 2, p. 3384.)

  Section 69 of the Civil Code provided that, as to a female under the age of 18, “no license may be issued by the county clerk unless both parties are capable of consenting to and consummating marriage as provided for in Section 56 of this code and such consent or consents must be filed by the clerk, and he must state such facts in the license.” (Stats. 1961, ch. 554, § 2, p. 1665.)