Judge: Anne Richardson, Case: 22STCV38416, Date: 2024-03-14 Tentative Ruling

Case Number: 22STCV38416    Hearing Date: March 14, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff E.M.—a citizen and resident of the State of Arkansas—sues Defendants Doe 1 Los Angeles Unified School District (LAUSD) and Does 2 through 25 pursuant to a January 6, 2023, First Amended Complaint (FAC) alleging claims of (1) Negligence (School), (2) Negligence (Does 2 through 25), (3) Negligent Hiring, Retention, and Supervision (School), and (4) Negligent Hiring, Retention, and Supervision (Does 2 through 25).

The claims arise from the following allegations. From approximately 1987 to 1988, when Plaintiff was approximately ten years old, Plaintiff was sexually abused and assaulted by an LAUSD teacher, Eugene Rosen, on numerous occasions over the course of approximately a one-year period. The acts of sexual abuse and assault perpetrated against Plaintiff by Eugene Rosen took place on LAUSD premises. The inappropriate behavior and rumors of Eugene Rosen were well known at LAUSD, which, observed by any reasonable person, would raise suspicion and merit an investigation. E.M. reported inappropriate touching of E.M.’s shoulders to multiple teachers at the school and the principal of the school. Despite the foregoing, no action was taken, no investigation was completed, and Eugene Rosen continued to sexually abuse and assault E.M.

B. Motion Before the Court

On November 13, 2024, LAUSD filed a motion for judgment on the pleadings against the Complaint’s claims.

On February 13, 2024, Plaintiff E.M. filed an opposition to LAUSD’s motion.

On March 7, 2024, LAUSD replied to Plaintiff E.M.’s opposition.

LAUSD’s motion is now before the Court.

II. Requests for Judicial Notice

Per Plaintiff E.M.’s request, the Court takes judicial notice of the Assembly floor analysis AB 218 dated August 30, 2019. (Opp’n, RJN, Ex. 12; Evid. Code, §§ 452, subds. (c), (h), 453, subds. (a)-(b).)

However, the Court declines to take notice of the eleven rulings by other trial courts in relation to whether AB 218 violates the Gift Clause. (Opp’n, RJN, Exs. 1-11.) “There is … a precondition to the taking of judicial notice in either its mandatory or permissive form[:] [A]ny matter to be judicially noticed must be relevant to a material issue.” (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.) The orders advanced for notice by E.M. simply do not relate to the face of the pleadings here or the Court’s analysis of the relevant authorities and proper interpretation of the law.

III. Motion for Judgment on the Pleadings

A. Legal Standard

Either prior to trial or at the trial—and barring statutory provisions otherwise—the plaintiff or the defendants may move for judgment on the pleadings where the appropriate ground for such a motion is the same as that arguable by general demurrer, namely, the failure to state a cause of action or defense. (Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791 A motion for JOP is used to challenge a pleading in the same manner as a general demurrer—that is, the challenged pleading (1) establishes that the court does not have subject-matter jurisdiction or (2) does not allege facts sufficient to support a cause of action or defense. (Code Civ. Proc., § 438, subd. (c)(1); see Marzec v. Public Empls. Ret. Sys. (2015) 236 Cal.App.4th 889, 900; International Assn of Firefighters v. City of San Jose (2011) 195 Cal.App.4th 1179, 1196.)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) Courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) However, this analysis “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

As with a demurrer, the grounds for a motion for judgment on the pleadings must appear on the face of the pleading or be based on facts capable of judicial notice. (Bufil v. Dollar Fin. Grp. (2008) 162 Cal.App.4th 1193, 1202, disapproved on other grounds in Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 985-986, fn. 15.) The only significant difference between the two motions is that a motion for judgment on the pleadings is brought after the time to file a general demurrer has expired. (Code Civ. Proc., § 438, subd. (f); Caldera Pharms. v. Regents of the Univ. of Cal. (2012) 205 Cal.App.4th 338, 350; International Assn of Firefighters v. City of San Jose, supra, at p. 1196.)

B. Motion for Judgment on the Pleadings, Entire Complaint, Violation of Gift Clause: DENIED.

1. Parties’ Arguments

LAUSD demurs to the Complaint as a whole on the grounds that the claims are premised on a change to the law known as AB 218, which was passed in 2020, eliminated the claims presentation requirement for childhood sexual abuse cases for conduct arising on or after January 1, 2009, and added a new subsection to Government Code section 905 making the changes to the statute retroactive, actions which amount to a violation of the California Constitution’s Gift Clause. (Mot., pp. 7-12.)

The opposition contests this position, and the reply responds thereto. (Opp’n, pp. 2-9; Reply, pp. 2-4.)

2. Analysis

After review, the Court finds in favor of Plaintiff E.M.

a. AB 218 is Not Unconstitutional

Here, the Court is unpersuaded that the Legislature lacks the power to revive lapsed claims and exempt said claims from the claim presentation requirement of the Government Tort Claims Act.

The test for “whether or not a proposed application of public funds is to be deemed a gift within the meaning [of the gift clause], … is … whether the money is to be used for a public or a private purpose.” (City of Oakland v. Garrison (1924) 194 Cal. 298, 302.) “The determination of what constitutes a public purpose is primarily a matter for the Legislature to determine, and its discretion will not be disturbed by the courts so long as that determination has a reasonable basis. [Citations.]” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 746.) Legislative findings are to be “given great weight and will be upheld unless they are found to be unreasonable and arbitrary. [Citations.]” (California Hous. Fin. Agency v. Elliot (1976) 17 Cal.3d 575, 583.) 

A review of the legislative history of AB 218 shows its public purpose. An August 30, 2019 Assembly discussion of AB 218 —at which AB 218 was voted on—shows that AB 218’s purposes are: to help prevent future assaults by raising the cost for sexual assault of minors; to protect victims of sexual assault rather than the perpetrators, who benefit from statutes of limitations; to confront cover ups of sexual abuse in institutions, thus preventing continuing victimization and the sexual assault of additional children; and to create an effective deterrent against individuals and entities who have chosen to protect the perpetrators of sexual assault over the victims. (Opp’n, RJN, Ex. 12 [attaching Assm. Floor analysis AB 218 (2019-2020 Reg. Sess.) (Sep. 14, 2019) 2019 CA A.B. 218].) The Court finds that these comments sufficiently state the public purposes for the Legislature’s passage of AB 218, such that, even if AB 218 permits a private individual to recover individualized monetary relief based on sexual assault, that benefit serves the public by deterring sexual assault generally and protecting minors. 

Moreover, a question remains as to how a statute requiring a public entity to defend a tort claim it thought had expired constitutes an unlawful gift of public money where the same defense employed in a new case just filed would not violate the Gift Clause. Both require a plaintiff to prove wrongdoing and damages to recover. Nothing in section Code of Civil Procedure section 340.1, subdivision (q), or Government Code section 905, subdivisions (m) and (p)—statutory sections modified by AB 218—obligate any defendant, individually or collectively with the other statutory sections, to pay monies related to a meritless claim. As highlighted in an authority cited by LAUSD: “We are not strongly impressed with the contention of the respondent that the application of funds to pay judgments obtained against the state constitutes a gift of public money, within the prohibition of the Constitution … The judgments which are to be paid bear no semblance to gifts. They must be first obtained in courts of competent jurisdiction, to which the parties have submitted their claims in the manner directed by law. In other words, they are judgments obtained after the requirements of due process of law have been complied with.” (See Heron v. Riley, 209 Cal. 507, 517.)

b. LAUSD’s Cited Authority is Distinguishable

LAUSD’s cited authority (Opp’n, 10-12) is factually distinguishable because those decisions involved circumstances where the legislature appropriated funds to pay specific individuals (Bourn v. Hart (1892) 93 Cal. 321, 326-328; Conlin v. Board of Supervisors (1893) 99 Cal.17, 21-23) passed legislation that a specific class of persons would be paid a specified amount out of a county’s or other public entity’s general funds (Powell v. Phelan (1903) 138 Cal. 271, 273-274, Heron v. Riley, supra, 209 Cal. at 517). AB 218 does neither of these things, but rather revives previously time-barred claims that accrued when the sexual assault occurred but must still be proven in a court of competent jurisdiction in the manner provided by law, consistent with due process requirements. Any claims presentation was abolished by AB 218 and its application is retroactive to the allegations here, which occurred from 1987 to 1988.

The cases LAUSD relies on also predate the Government Claims Act, enacted in 1963. Before the Government Claims Act was enacted, “tort liability for public entity defendants was barred by a common law rule of governmental immunity. Over time, however, the common law rule became ‘riddled with exceptions,’ both legislative and judge made, and in 1961 this court abolished the rule altogether [in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 214].” (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 803.) More than a decade after the Government Claims Act was passed, the California Supreme Court pronounced that “Government Code section 815 restores sovereign immunity in California except as provided in the Tort Claims Act or other statute.” (Williams v. Horvath (1976) 16 Cal.3d 834, 838.)

However, even if the Legislature confined potential governmental liability to “rigidly delineated circumstances,” the Court is not persuaded that the Legislature is barred from changing those circumstances, nor is it persuaded that the Legislature necessarily “creates liability” when it eliminates a statutory immunity that previously applied to a negligent act that occurred in the past, e.g., in the form of the elimination of the prefiling claims requirement and retroactivity challenged here. In dicta in Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 213, superseded by statute on other grounds as stated in Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 914-916, the California Supreme Court stated that if the Legislature “intended to … revive … the claim representation requirement under the government claims statute, it could have easily said so,” implying the Legislature’s ability to make the changes it did in AB 218 relating to subdivisions (m) and (p) in Government Code section 905. And here, as briefly discussed above, any cause of action against Eugene Rosen, the offending teacher, accrued at the time the cause of action was complete with all its elements. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.) Those elements, in the light most favorable to the pleadings, accrued at the time of the alleged abuse in 1988 at the latest. The exposure to LAUSD would have been created at the same time under a negligence or negligent supervision theory, such as here, subject to the claims presentation requirement at the time. As such, unlike LAUSD’s cited authority, liability initially existed and was simply revived by AB 218.

c. The California Supreme Court Has Denied Review of Similar Arguments

Last, the Court briefly notes that the California Supreme Court has denied review of a court of appeal denial of a petition for writ of mandate filed by a California school district against a trial court overruling the school district’s demurrer to a pleading, where the demurrer was based on the arguments that AB 218 was not constitutional based on its elimination of the Government Claims Act requirement and retroactivity component. (Jamie Hill v. Stockton Unified School District, a public entity et al. (Super. Ct. San Joaquin County, 2022, No. STK-CV-UNPI-2022-0001471) (Dec. 21, 2022) [trial court ruling overruling demurrer based on AB 218 unconstitutionality arguments]; Stockton Unified School District v. The Superior Court of San Joaquin County (Apr. 17, 2023, C098020) [petition for writ of mandate denied], review den. Stockton Unified School District v. S.C. (Hill) (May 31, 2023, S279636).)

LAUSD’s motion is thus DENIED. 

IV. Conclusion

Defendant Los Angeles Unified School District’s Motion for Judgment on the Pleadings is DENIED.