Appellate Case: 20-4074 Document: 010110568854 Date Filed: 08/30/2021 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`August 30, 2021
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`
`
`
`
`
`
`No. 20-4074
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`SAMANTHA GERSON,
`
` Plaintiff - Appellant,
`
`v.
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`LOGAN RIVER ACADEMY, d/b/a Maple
`Rise Academy,
`
` Defendant - Appellee,
`
`and
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`DOES, 1 through 11,
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` Defendants.
`
`_________________________________
`
`Appeal from the United States District Court
`for the District of Utah
`(D.C. No. 1:20-CV-00010-DB)
`_________________________________
`
`Alan S. Mouritsen (Michael W. Young with him on the briefs), Parsons Behle & Latimer,
`Salt Lake City, Utah, for Appellant.
`
`Molly M. Loy (Thomas E. Beach with her on the brief), Beach Cowdrey Jenkins, LLP,
`Oxnard, California, for Appellees.
`_________________________________
`
`Before HARTZ, BRISCOE, and CARSON, Circuit Judges.
`_________________________________
`
`HARTZ, Circuit Judge.
`_________________________________
`
`

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`Appellate Case: 20-4074 Document: 010110568854 Date Filed: 08/30/2021 Page: 2
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`At the age of 15, Plaintiff Samantha Gerson was allegedly sexually abused by an
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`employee (the Perpetrator) at Logan River Academy, a residential treatment facility in
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`Logan, Utah. She filed suit against Logan River a decade later in the United States
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`District Court for the Central District of California (the Central District), from which the
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`case was transferred to the United States District Court for the District of Utah. Logan
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`River moved to dismiss on the ground that the suit was barred by Utah’s applicable
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`statute of limitations. Ms. Gerson responded that the suit was timely under California
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`law. The district court applied California’s choice-of-law doctrine, determined that
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`Utah’s statute of limitations governed, and granted the motion to dismiss. We have
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`jurisdiction under 28 U.S.C. § 1291 and affirm.
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`I.
`
`BACKGROUND
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`Because this case comes to us on review of a dismissal under Fed. R. Civ. P.
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`12(b)(6) for failure to state a claim, we accept as true the well-pleaded allegations in Ms.
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`Gerson’s complaint. See Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th
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`Cir. 2021). Although the statute of limitations is an affirmative defense, see Fed. R. Civ.
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`P. 8(c)(1), a dismissal on that ground is permissible if “the complaint itself admits all the
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`elements of the affirmative defense by alleging the factual basis for those elements.”
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`Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018).
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`Ms. Gerson was a California resident and high school student in Beverly Hills. On
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`October 15, 2008, Logan River staff members came to her school and transported her to
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`Logan River. Ms. Gerson claims she was taken from California involuntarily and against
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`2
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`her will.1 While at Logan River, the Perpetrator repeatedly sexually abused Ms. Gerson
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`until April 2009. She continues to suffer physically and emotionally from her ordeal.
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`In June 2019 Ms. Gerson—then 25—filed suit in the Central District2 against
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`Logan River and 11 unknown and unnamed individuals and entities, not including the
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`Perpetrator. She pleaded eight causes of action based on allegations that the defendants
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`knew or had reason to know of the Perpetrator’s unlawful sexual conduct but covered it
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`up and failed to properly supervise the Perpetrator. Logan River responded by moving to
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`dismiss the complaint or, alternatively, transfer the case to federal court in Utah. The
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`Central District granted the motion to transfer because Ms. Gerson could have brought
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`1 Although the complaint alleges that Logan River staffers “abducted and kidnapped” her
`from her high school, Aplt. App. at 11, Ms. Gerson has abandoned that characterization
`on appeal. Instead, both in her appellate briefing and at oral argument, Ms. Gerson
`repeatedly characterized her removal as involuntary and against her will. See Aplt. Br. at
`21, 24 (involuntary); id. at 1, 3, 5, 21, 23 (against her will). We will have more to say
`about this particular language later in the opinion.
` The federal court had diversity jurisdiction under 28 U.S.C. § 1332. But jurisdiction
`was not established by the complaint. It recognized that Logan River is organized as a
`Utah LLC, yet it characterized Logan River as a traditional “corporation incorporated in
`the State of Utah” for purposes of invoking federal jurisdiction. Aplt. App. 10. This was
`error. “[A]n LLC, as an unincorporated association, takes the citizenship of all its
`members.” Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F.3d 1233, 1234 (10th
`Cir. 2015). And “where an LLC has, as one of its members, another LLC, the citizenship
`of unincorporated associations must be traced through however many layers of partners
`or members there may be to determine the citizenship of the LLC.” Zambelli Fireworks
`Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010) (internal quotation marks omitted).
`The error apparently went unnoticed until we sua sponte issued an order directing Logan
`River to identify the citizenship of each of its members. Logan River’s response reported
`three members: two natural persons of Utah citizenship and one Delaware LLC.
`Because this response failed to provide any information on the members of the Delaware
`LLC, we issued a second order seeking that information. Logan River’s second response
`assures us that there is complete diversity among the parties.
`
` 2
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`3
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`her action in Utah and because on balance the convenience of the parties and witnesses,
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`as well as the interest of justice, favored transfer. See 28 U.S.C. § 1404(a). Once in
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`Utah, Logan River again moved to dismiss, arguing that Utah law governed and the
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`applicable Utah statute of limitations barred the claims. In response, Ms. Gerson did not
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`dispute that her claims would be barred under Utah law but argued that California law
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`governed and her claims were timely under the applicable California statute of
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`limitations. The district court agreed with Logan River. Applying California choice-of-
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`law principles, it decided that Utah substantive law governed because it was the State
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`whose interests would be more significantly impaired if its law were not applied to this
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`case. It dismissed the complaint as time-barred under Utah law.
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`II.
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`DISCUSSION
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`The sole issue on appeal is whether Utah’s or California’s statute of limitations
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`applies. There is much debate about how to decide which State’s substantive law should
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`govern a dispute that has connections with more than one State, with one leading
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`commentator having identified seven approaches in use among the 50 States. See
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`Symeon C. Symeonides, Choice of Law in the American Courts in 2019: Thirty-Third
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`Annual Survey, 68 Am. J. Comp. L. 235, 259 (2020) (2019 Annual Survey). A highly
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`influential approach is that adopted by the Restatement (Second) of Conflict of Laws,
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`whose guiding principle for tort claims is to apply the law of the State with the “most
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`significant relationship” to the parties and the occurrence with respect to the issue in
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`question. Restatement (Second) of Conflict of Laws §§ 6, 145 (1971); see Gregory E.
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`Smith, Choice of Law in the United States, 38 Hastings L.J. 1041, 1044–46 (1987). But
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`that approach is far from universally accepted. See Symeonides, 2019 Annual Survey at
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`259 (cataloging each State’s choice-of-law approach and identifying 25 States that follow
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`Restatement (Second) of Conflict of Laws for tort claims). Accordingly, our first task is
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`to determine what choice-of-law rules apply to this case.
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`When exercising diversity jurisdiction under 28 U.S.C. § 1332, a district court
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`ordinarily applies the choice-of-law rules of the State in which it sits. See Klaxon Co. v.
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`Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Brooks, 985 F.3d at 1278 n.1. But
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`when, as here, a case lands in a forum by way of transfer under 28 U.S.C. § 1404(a) on a
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`motion by the defendant, the transferee court generally must use the choice-of-law rules
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`that would have prevailed in the transferor court. See Ferens v. John Deere Co., 494 U.S.
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`516, 519 (1990); Van Dusen v. Barrack, 376 U.S. 612, 639 (1964). But see Atl. Marine
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`Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 65–66 (2013) (when
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`transfer is ordered to effectuate a valid contractual forum-selection clause, the choice-of-
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`law rules of the transferee court apply). Because Ms. Gerson initially filed this case in
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`the Central District, we use California’s choice-of-law rules to determine which State’s
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`law should apply. We review de novo the district court’s choice-of-law determination.
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`See Carolina Cas. Ins. Co. v. Burlington Ins. Co., 951 F.3d 1199, 1207 (10th Cir. 2020).
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`A.
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`California’s Choice-of-Law Rules
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`California has long been recognized as the leading proponent of so-called
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`governmental-interest analysis to resolve conflicts of laws arising from tort claims. See
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`McCann v. Foster Wheeler LLC, 225 P.3d 516, 524 (Cal. 2010); see also Symeonides,
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`2019 Annual Survey at 259 (cataloging California as the only State (along with the
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`District of Columbia) that presently uses governmental-interest analysis for tort claims).
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`This approach involves three steps. See McCann, 225 P.3d at 527. A court must first
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`determine “whether the relevant law of each of the potentially affected jurisdictions”
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`differs with regard to the particular issue before it. Id. (internal quotation marks
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`omitted). This requirement is satisfied if the outcome depends on which jurisdiction’s
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`law is applied. See id. at 527–28; Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914,
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`933 (Cal. 2006).
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`If the laws differ, the court proceeds to step two, which requires it to determine
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`“each jurisdiction’s interest in the application of its own law under the circumstances of
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`the particular case to determine whether a true conflict exists.” McCann, 225 P.3d at 527
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`(internal quotation marks omitted). A “true conflict” is said to exist if each jurisdiction
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`has a “real and legitimate interest” in having its law applied. Id. at 527, 531–32. A
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`jurisdiction may not have the requisite interest if, for example, it has an “unusual and
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`outmoded statute,” Offshore Rental Co. v. Cont’l Oil Co., 583 P.2d 721, 728 (Cal. 1978),
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`or has “exhibited little concern” about whether its law is applied in the relevant context,
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`id.; see Kearney, 137 P.3d at 934, or the party that would benefit from application of the
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`jurisdiction’s law is not a resident of the jurisdiction, see Hurtado v. Superior Ct., 522
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`P.2d 666, 668, 670 (Cal. 1974) (no true conflict in wrongful-death suit by Mexican
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`plaintiffs against Californian defendants where Mexico, but not California, imposed a
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`limit on monetary recovery because Mexico’s policy was meant to protect its defendant-
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`residents from ruinous liability, not to deny full recovery to its injured plaintiff-residents).
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`In these situations, there is no true conflict even if the ignored law would produce a
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`different result.
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`If a true conflict exists, the court proceeds to step three, known as comparative-
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`impairment analysis. See McCann, 225 P.3d at 527, 533. This step requires the court to
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`determine which jurisdiction’s interests would be “more impaired” if its law were not
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`applied and then apply that jurisdiction’s law. Id. at 527 (internal quotation marks
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`omitted). The court “carefully evaluates and compares the nature and strength of the
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`interest of each jurisdiction in the application of its own law.” Id. (internal quotation
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`marks omitted). The relevant interest is not measured by the strength of the State’s belief
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`that its law is normatively superior. The California Supreme Court has emphasized that
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`courts are not to “weigh” the wisdom of each jurisdiction’s policies by “determining
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`which conflicting law manifested the ‘better’ or the ‘worthier’ social policy on the
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`specific issue.” Id. at 533 (some internal quotation marks omitted). As that court has
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`explained, “An attempted balancing of conflicting state policies in that sense is difficult
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`to justify in the context of a federal system in which, within constitutional limits, states
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`are empowered to mold their policies as they wish.” Id. (ellipsis and internal quotation
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`marks omitted). “Instead, the process can accurately be described as a problem of
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`allocating domains of law-making power in multi-state contexts—by determining the
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`appropriate limitations on the reach of state policies.” Id. at 533–34 (brackets, ellipsis,
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`and internal quotation marks omitted). “Emphasis is placed on the appropriate scope of
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`conflicting state policies rather than on the quality of those policies.” Id. at 534 (brackets
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`and internal quotation marks omitted).
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`California courts have recognized that “a jurisdiction ordinarily has the
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`predominant interest in regulating conduct that occurs within its borders and in being able
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`to assure individuals and commercial entities operating within its territory that applicable
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`limitations on liability set forth in the jurisdiction’s law will be available to those
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`individuals and businesses in the event they are faced with litigation in the future.” Id.
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`(citations and internal quotation marks omitted); see also Cooper v. Tokyo Elec. Power
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`Co. Holdings, Inc., 960 F.3d 549, 557, 562 (9th Cir. 2020) (applying California choice-
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`of-law rules), cert. denied, 141 S. Ct. 1735 (2021). That is not to say that California
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`courts blindly apply the law of the jurisdiction where the alleged tortious conduct
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`occurred without regard to the nature of the issue before the court, see McCann, 225 P.3d
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`at 534; but it does mean that a foreign jurisdiction has a “presumptive interest” in
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`applying its law to conduct within its territory “absent some other compelling interest to
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`be served by applying California law,” Castro v. Budget Rent-A-Car Sys., Inc., 65 Cal.
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`Rptr. 3d 430, 442 (Cal. Ct. App. 2007); see also Michael H. Hoffheimer, California’s
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`Territorial Turn in Choice of Law, 67 Rutgers U. L. Rev. 167, 241 (2015) (surveying
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`California precedent and concluding that “California judicial decisions since 2000 display
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`a marked turn to territorial principles as the decisive consideration in resolving conflict of
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`laws”).
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`Illustrative is Offshore Rental Co. v. Continental Oil Co., in which a California
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`corporation sued a non-California corporation for damages arising from the latter’s
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`negligence that caused injury to a key employee of the California corporation. See 583
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`P.2d 721, 723 (Cal. 1978). All relevant events occurred in Louisiana. See id. Louisiana
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`law barred recovery on key-employee claims, see id. at 724, reflecting its interest “to
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`protect negligent resident tort-feasors acting within Louisiana’s borders from the
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`financial hardships caused by the assessment of excessive legal liability or exaggerated
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`claims,” id. at 725. California law, however, permitted recovery, reflecting an interest in
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`protecting injured California plaintiffs and thereby protecting California’s economy and
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`tax revenues from the effects of such injuries. See id. at 724–25. The court held that
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`Louisiana’s interests would be the more impaired if its law were not applied, see id. at
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`729, pointing out that the foundation of Louisiana’s liability-limiting policy was “the
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`vital interest in promoting freedom of investment and enterprise within Louisiana’s
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`borders,” id. at 728 (emphasis omitted).
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`Offshore Rental was reaffirmed by the California high court in McCann v. Foster
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`Wheeler LLC, which presented choice-of-law issues similar to those in our case. See 225
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`P.3d 516, 535–36 (Cal. 2010). The plaintiff sought recovery for mesothelioma caused by
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`exposure to asbestos while observing the installation of a very large boiler at an oil
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`refinery in Oklahoma. See id. at 520. The defendant company had designed,
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`manufactured, and provided advice regarding the installation of the boiler. See id.
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`Although the plaintiff had not been a California resident at the time of exposure, he was a
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`resident when he became ill and filed suit. See id. at 520–21. The claim was barred by
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`Oklahoma’s statute of repose but permitted under California law. See id. at 527–29. The
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`court previewed its analysis in the following sentence:
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`[A]lthough California has a legitimate interest in affording a remedy to a
`resident of California whose asbestos-related illness first manifests itself
`when the individual is a California resident, past California cases indicate
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`that it is generally appropriate for a court to accord limited weight to
`California’s interest in providing a remedy for a current California resident
`when the conduct of the defendant from whom recovery is sought occurred
`in another state, at a time when the plaintiff was present in (and, in the
`present situation, a resident of) that other state, and where that other state
`has its own substantive law, that differs from California law, governing the
`defendant’s potential liability for the conduct that occurred within that
`state.
`
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`Id. at 519.
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`The court recognized that Oklahoma’s law served “the legitimate government
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`objectives of providing a measure of security for building professionals whose liability
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`could otherwise extend indefinitely” and “the legitimate objective of avoiding the
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`difficulties of proof which arise from the passage of time.” Id. at 529–30 (internal
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`quotation marks omitted). At the same time, California had a general interest in ensuring
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`recovery for its injured residents and a special interest in providing relief for asbestos-
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`related harm, reflected in the California legislature’s decision to create a special,
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`extended statute of limitations for such claims. See id. at 529, 532; see also Cal. Civ.
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`Proc. Code § 340.2. But two factors tilted the scales in favor of applying Oklahoma law.
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`First, the court noted California’s “diminished authority over activity that occurs in
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`another state.” McCann, 225 P.3d at 536. Second, it noted that when someone enters a
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`State, she “expose[s] [herself] to the risks of the territory, and should not expect to
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`subject [the] defendant to a financial hazard that [the law of the State she entered] had not
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`created.” Id. at 535 (internal quotation marks omitted). The court rejected the plaintiff’s
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`argument that his case was different because his injury actually occurred in California—
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`where the repercussions of his exposure to asbestos first manifested themselves. See id.
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`at 537. It explained that this circumstance did “not realistically distinguish the present
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`matter from a case . . . in which a California resident is seriously injured in an automobile
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`accident in another state and returns home to California for extensive medical treatment
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`and long-term care.” Id. The court recognized that “in such a case the plaintiff’s long-
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`term medical expenses are likely to be incurred in California and, if the plaintiff’s
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`resources are insufficient, the state ultimately may expend considerable financial
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`resources for his or her care,” id.; but it noted that “past California choice-of-law
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`decisions . . . have not treated that type of case as one in which a defendant’s conduct has
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`caused an injury in California,” id. It explained that those decisions have recognized
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`“that the State in which the alleged injury-producing conduct occurred (and in which a
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`significant risk of harm to others is posed) generally has the predominant interest in
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`determining the appropriate parameters of liability for conduct undertaken within its
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`borders.” Id. Thus, the court held that Oklahoma’s interests in limiting liability for torts
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`occurring within its territory prevailed over California’s interests. See id.
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`As these cases demonstrate, California’s choice-of-law rules—particularly
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`comparative-impairment analysis—is rooted in basic notions of federalism. See id. at
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`533. It is well established that “our federal system . . . leaves to a state, within the limits
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`permitted by the Constitution, the right to pursue local policies diverging from those of
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`its neighbors.” Klaxon, 313 U.S. at 496. Recognizing this, California courts take a
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`“restrained view” in extending California’s authority to impose liability on extraterritorial
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`conduct that is not subject to liability under the laws of the jurisdiction in which such
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`conduct occurred. McCann, 225 P.3d at 535. To have courts evaluate and weigh the
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`wisdom of competing States’ laws would, in California’s view, violate federalist
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`principles. See id. at 533.
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`B.
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`Application to this Case
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`1.
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`Step 1: Do the Statutes of Limitations of California and
`Utah Lead to Different Results?
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`Both California and Utah have enacted special statutes of limitations for claims of
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`childhood sexual abuse. When Ms. Gerson commenced this suit in 2019, California law
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`gave victims of childhood sexual abuse the right to sue until the later of their 26th
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`birthdays or three years after their discovery of their psychological injuries. See Cal. Civ.
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`Proc. Code § 340.1(a) (2019).3 This limitations period applied to suits brought against
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`3 The California statute read in relevant part:
`
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`(a) In an action for recovery of damages suffered as a result of childhood
`sexual abuse, the time for commencement of the action shall be within
`eight years of the date the plaintiff attains the age of majority or within
`three years of the date the plaintiff discovers or reasonably should have
`discovered that psychological injury or illness occurring after the age of
`majority was caused by the sexual abuse, whichever period expires later,
`for any of the following actions:
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`(1) An action against any person for committing an act of childhood
`sexual abuse.
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`(2) An action for liability against any person or entity who owed a
`duty of care to the plaintiff, where a wrongful or negligent act by
`that person or entity was a legal cause of the childhood sexual abuse
`which resulted in the injury to the plaintiff.
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`(3) An action for liability against any person or entity where an
`intentional act by that person or entity was a legal cause of the
`childhood sexual abuse which resulted in the injury to the plaintiff.
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`
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`alleged perpetrators or nonperpetrator persons or entities whose actions caused sexual
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`abuse. See id. In Utah a special statute of limitations for sexual abuse permitted victims
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`to sue perpetrators “at any time” and to sue nonperpetrators until the later of the victims’
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`22nd birthdays or four years after their discoveries of their psychological injuries. Utah
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`Code § 78B-2-308(3).4 The special statute applies only to suits against living persons.
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`See id. § 78B-2-308(6); Savage v. Utah Youth Vill., 104 P.3d 1242, 1247–49 (Utah 2004).
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`Nonliving entities, such as Logan River, were instead subject to Utah’s default four-year
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`limitations period and a tolling provision for claims arising before a plaintiff reaches the
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`age of majority. See Utah Code § 78B-2-307(3); id. § 78B-2-108.
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`Cal. Civ. Proc. Code § 340.1 (2019). After Ms. Gerson filed suit, California’s statute of
`limitations was amended to further extend the limitations period to 22 years after a victim
`attains the age of majority or, if later, five years after delayed discovery of the abuse. See
`2019 Cal. Legis. Serv. Ch.861 (A.B. 218) (West) (effective January 1, 2020).
` The Utah statute reads in relevant part:
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` 4
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`
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`(3)(a) A victim may file a civil action against a perpetrator for intentional or
`negligent sexual abuse suffered as a child at any time.
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`(b) A victim may file a civil action against a non-perpetrator for intentional
`or negligent sexual abuse suffered as a child:
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`(i) within four years after the individual attains the age of 18 years;
`or
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`(ii) if a victim discovers sexual abuse only after attaining the age of
`18 years, that individual may bring a civil action for such sexual
`abuse within four years after discovery of the sexual abuse,
`whichever period expires later.
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`Utah Code § 78B-2-308; see id. § 78B-2-308(2)(b) (defining discovery of sexual abuse).
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`Thus, Utah law was more favorable to victims than California law with respect to
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`suits against perpetrators of sexual abuse, because Utah set no time limit on such suits.
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`For suits against living persons who were nonperpetrators, the laws of the two States
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`were comparable. Although Utah always allowed suits only until age 22, while
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`California always allowed suits until age 26, Utah had a four-year discovery period while
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`California’s discovery period was three years. For suits against nonperpetrators who
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`were not living persons, however, California law was more plaintiff-friendly. California
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`allowed suits until the later of age 26 and the end of a three-year discovery period,
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`whereas Utah allowed suits only until age 22 and recognized no special discovery period.
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`These differences in the laws of California and Utah illustrate the often-observed
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`reality that crafting statutes of limitations requires balancing important interests of
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`plaintiffs and defendants. See Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019) (“The
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`length of a limitations period reflects a value judgment concerning the point at which the
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`interests in favor of protecting valid claims are outweighed by the interests in prohibiting
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`the prosecution of stale ones.” (internal quotation marks omitted)); McCann, 225 P.3d at
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`529 (recognizing that Oklahoma’s statute of repose “was intended to balance the interest
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`of injured persons in having a remedy available for such injuries against the interest of
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`[defendants] in being subject to a specified time limit during which they would remain
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`potentially liable for their actions”).
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`Ms. Gerson was 25 when she filed suit. Her claims against Logan River (a
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`nonliving nonperpetrator) therefore would be timely under California law but untimely
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`under Utah law. The two statutes differ in their application to this case.
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`2.
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`Step 2: Is There a True Conflict?
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`We think it obvious that California and Utah each has a “real and legitimate
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`interest” in having its statute of limitations applied. McCann, 225 P.3d at 531–32.
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`California, recognizing the obstacles in bringing claims of childhood sexual abuse, has
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`provided a generous statute of limitations so that its residents can be compensated for
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`their injuries and lessen the burden on the State for their care. In some respects Utah has
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`an even more generous statute of limitations (for suits against alleged perpetrators); but,
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`as in this case, it has a shorter limitations period for suits against entities that are not
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`living persons. Utah’s limitation of liability for businesses (such as Logan River) and
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`other entities reflects the usual reasons for setting time limits on lawsuits—“including
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`preventing unfair litigation such as surprise or ambush claims, fictitious and fraudulent
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`claims, and stale claims” and avoiding injustices “due to the difficulties caused by lost
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`evidence, faded memories and disappearing witnesses.” Davis v. Provo City Corp., 193
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`P.3d 86, 91 (Utah 2008) (internal quotation marks omitted); see McCann, 225 P.3d at 530
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`(setting clear limitations periods serves a State’s “vital” economic interest by promoting
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`commercial activity within the State, which in turn can increase “tax and other revenue”
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`and “advance the opportunity of state residents to obtain employment and the products
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`and services offered” (internal quotation marks omitted)).
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`Ms. Gerson argues that Utah has little interest in having its law applied because,
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`unlike California, it “has ‘exhibited little concern’” about “third-party business entities
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`who negligently facilitate [child sexual-]abuse.” Aplt. Br. at 21–22 (quoting Kearney,
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`137 P.3d at 927). But this proposition is impossible to reconcile with the fact that the
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`Appellate Case: 20-4074 Document: 010110568854 Date Filed: 08/30/2021 Page: 16
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`Utah child-sexual-abuse statute of limitations in effect when Ms. Gerson filed suit had
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`been amended as recently as 2015 (to eliminate any time limit on suits against
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`perpetrators), 2016, and 2018. This was no out-of-date statute whose contemporary
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`application would be a surprise to anyone. Ms. Gerson has provided no evidence that the
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`Utah courts have declined to dismiss untimely sexual-abuse claims against nonliving
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`persons. Her exhibited-little-concern argument amounts to no more than an assertion that
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`a State can show concern on a subject only by expanding liability, not by protecting
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`prospective defendants. That assertion ignores the reality that both plaintiffs and
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`defendants have significant interests in the terms of a statute of limitations, and state
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`policy must balance those interests. Cf. Mazza v. Am. Honda Motor Co., 666 F.3d 581,
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`592 (9th Cir. 2012) (“Maximizing consumer and business welfare, and achieving the
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`correct balance for society, does not inexorably favor greater consumer protection;
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`instead, setting a baseline of corporate liability for consumer harm requires balancing the
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`competing interests.”).
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`We readily conclude that there is a “true conflict” between the California and Utah
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`statutes. To subject a Utah enterprise to litigation on this claim at this late date would
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`clearly be contrary to Utah policy to protect such entities from stale claims. The policies
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`of the two States cannot be reconciled on the issue whether Ms. Gerson’s claims can
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`proceed.
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`3.
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`Step 3: Comparative-Impairment Analysis
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`We now must determine which State’s interests would be “more impaired if its
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`policy were subordinated to the policy of the other state.” McCann, 225 P.3d at 533
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`Appellate Case: 20-4074 Document: 010110568854 Date Filed: 08/30/2021 Page: 17
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`(internal quotation marks omitted). The answer can be found in McCann. Addressing
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`issues similar to those of the present case, McCann held that a foreign State’s interest in
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`setting clear limitations on liability for conduct within its borders that injuriously
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`impacted the plaintiff while also within the State predominated over California’s
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`interest—reflected through a special, more generous statute of limitations—in facilitating
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`recovery by its residents for latent injuries (in that case, arising from asbestos) that are
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`often difficult to prosecute within ordinary limitations periods. See id. at 537. That same
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`analysis applies here and requires application of Utah’s statute of limitations.
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`This result should not be surprising. The outcome of California’s choice-of-law
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`doctrine in this context is far from unique. When parties have different domiciles but the
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`tortious conduct and injury occurred within the tortfeasor’s home State, whose law favors
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`the tortfeasor, the great majority of courts apply the law of the