A federal appeals court has directed a U.S. District Court judge to decide if the statute of limitations can be extended so a woman who was sexually assaulted as a teen by a then-Camp Pendleton Marine can sue the U.S. Marine Corps for negligence.
Testifying in a case that resulted in former Sgt. Ross Curtis' conviction of lewd acts and other felonies involving two teen girls, the plaintiff and her mother discovered he had been court martialed for sexually assaulting three female subordinates at Camp Pendleton before being assigned to a recruitment office that had him interacting with schoolchildren.
Here is the naughty timeline:
March 2006: Sgt. Curtis is court-martialed for the sexual misbehavior at Camp Pendleton and is reassigned to a Marine recruitment office. He volunteers as a drill instructor at a three-day boot camp for at-risk youth, where he befriends 13-year-old Martiza Gallardo, asks for her MySpace address and later messages her suggesting they "hang out."
May 2006: Curtis, in uniform, attends the career day at Gallardo's middle school in Hawaiian Gardens. He offers to give the girl and her friends rides home, but after dropping off the others he drives to a secluded spot where he molests Gallardo. He tries to rape her, but her cries force him to stop. Curtis then drives Gallardo home and instructs her not to tell anyone what happened.
June 2006: The Marines discharge Curtis.
2008: No longer in the military, Curtis is arrested after sexually assaulting a 15-year-old Whittier girl. Police investigators discover his MySpace messages to Gallardo and bring her into the case.
2009: Curtis is convicted in Los Angeles County Superior Court of two counts each of lewd acts upon a child and oral copulation of a person under 16 and one count each of sexual penetration by a foreign object and sending harmful matter. He is sentenced to 12 years and eight months in prison.
Gallardo filed an administrative claim alleging negligence with the Marine Corps and the U.S. Department of Defense in 2010. After that was rejected, Gallardo filed a lawsuit in U.S. District Court in Los Angeles, where Judge John Walter ruled she missed the two-year deadline for claims under the Federal Tort Claims Act (FTCA).
She appealed to the U.S. 9th Circuit Court of Appeals on grounds that she missed the deadline because she only discovered Curtis' history as a sexual predator at Camp Pendleton while testifying against him in 2009. A three-judge appeals panel determined the clock started with the assault in 2006, but it remanded the case back to Walter for a hearing on whether the statute of limitations should be extended in this case.
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There is some precedence: Gallardo's attorney Randall Paulson of Santa Ana cited the 9th Circuit's own recent ruling in Wong v. Beebe, which allowed the statute of limitations to be extended under the FTCA for the Wu-Wei Tien Tao Association, which had sued the Immigration and Naturalization Service for the alleged wrongful deportation of its spiritual leader Kwai Fun Wong in 1999.
Government attorneys have argued the FTCA exception in Wong v. Beebe does not apply to Gallardo's circumstances, something that Judge Walter must now sort out. But when the appellate panel indicated in January it was leaning toward kicking the case back down to Walter, Judge William Fletcher summed up what you may feel about what he called the government's "miserable case."
"I'm sure, as you're well aware, that the military has a major problem on its hands with respect to sexual abuse and the disciplining of those who are sexual abusers," Fletcher said. "And what happened here, if the allegations in the complaint are true ... We have a sexual abuser and the command decide that he is a sexual abuser, and his punishment is he's sent out to deal with schoolchildren. Terrific. And then the predictable happens and he abuses this girl. And the government is now saying: 'Too bad, too late.' That's how I see this case."