Judge Christian R. Gullon, Case Number: 22PSCV02768, Date: 2023-09-28 Tentative Ruling

Judge: Christian R. Gullon, Case: 22PSCV02768, Date: 2023-09-28 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

Defendant Doe 1 School District DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR DAMAGES is SUSTAINED (i.e., Negligence COAs are duplicative such that there shall be one negligence COA for negligent hiring, retention and supervision; demurrer to Sexual Battery COA is sustained without leave to amend; to the extent that Defendant argues AB 218 is unconstitutional, the court determines the Gifts Clause is not invoked).

This case pertains to a sexual assault. Plaintiff Jennifer Parker (“Plaintiff”) alleges the following against Defendant Doe 1 School District (“Defendant”). In 1984, when she was a junior in high school, Plaintiff served as John Fernandez’s (“Perpetrator” or “Fernandez”) teaching assistant. Throughout the year, the Perpetrator made sexually inappropriate comments to Plaintiff. On one occasion, Plaintiff asked another teacher at the high school what to do, but the teacher did not help nor report the matter. Then, while alone in the classroom, the Perpetrator sexually assaulted Plaintiff. However, despite informing the school, the incident was not reported to law enforcement nor investigated. When Plaintiff’s mother acted, Defendant again did not report the incident to law enforcement, but rather transferred the Perpetrator to a different school. The premise of Plaintiff’s action is that Defendant “failed to thoroughly investigate such complaint, and failed to timely take corrective action, or to warn subsequent parents and students of the risks posed by Perpetrator.”

On December 9, 2022, Plaintiff filed suit for the following causes of action (“COA”):

On May 18, 2023, Defendant filed a demurrer, which on 6/27/23 (after taking the matter under submission) issued the following rule: Defendant Doe 1 School District’s Demurrer to Plaintiff’s Complaint is SUSTAINED with leave to amend as to the Negligent Causes of Action and OVERRULED as to the 5th Cause of Action for Intentional Infliction of Emotional Distress. As for 6th Cause of Action for Sexual Battery, which the court took under submission, the court SUSTAINS the Demurrer with leave to amend because Plaintiff has failed to plead a statute such that the Court cannot adequately address the ratification issue.

On July 24, 2023, Plaintiff filed her first amended complaint (FAC) alleging the following COAs:

On September 28, 2023, the court continued the hearing on the demurrer to the FAC for Plaintiff’s failure to meet and confer with Defendant.

On October 6, 2023, Defendant filed a declaration regarding the meet and confer effort.

A demurrer, in pertinent part, may be asserted when the pleading does not state facts sufficient to constitute a cause of action or when the pleading is uncertain (“uncertain” includes ambiguous and unintelligible). (Code of Civ. Proc., § 430.10 subds. (e), (f).) Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.[2] (Code of Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Defendant demurs on three grounds: (1) AB 218 Violates California Constitution, Article XVI, § 6, (2) Plaintiff has not identified a statutory duty of care for the negligence COAs and are otherwise duplicative, and (3) Plaintiff’s sixth COA for sexual battery is legally untenable.

As the second and third arguments were previously addressed by the court, the court will first address those first.

“Under the California Tort Claims Act (Gov. Code § 810 et seq.), ‘a public entity is not liable for injury arising from an act or omission except as provided by statute.’ [Citations]. Thus, in California, ‘all government tort liability must be based on statute [citation].’ [Citation]. ‘In the absence of a constitutional requirement, public entities may be held liable only if a statute ... is found declaring them to be liable.’” [Citation.] (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)

Defendant again argues that the negligence COAs fail to state a distinct statutory basis. Plaintiff avers that liability is derived from Government Code section 815.2.

Here, as noted before, Government Code section 815.2 is the statute that provides for liability (i.e., vicarious liability for injuries within the course and scope of employment).[4] To the extent that Defendant argues a statutory duty must also be pled, it fails to provide legal authority to support that contention.[5]

Non-statutory duties aside, Plaintiff has pled various duties including, inter alia, “Defendants owed Plaintiff, a minor child, a special duty of care, in addition to a duty of ordinary care, and owed Plaintiff the higher duty of care that adults dealing with children owe to protect them from harm” and that by virtue of standing in loco parentis Defendants also owed “a heightened duty of care towards Plaintiff and Defendant failed to take reasonable steps to protect Plaintiff,” (FAC ¶27).

Thus, Plaintiff has pled both a statutory basis for liability (Government Code §§ 815.2 and 820) and duties (e.g., special duty of care).[6]

Therefore, the court OVERRULES the demurrer on the grounds that Plaintiff has not pled the statutory basis for each negligence COAs.

As with before, Defendant asserts that the negligence COAs are “based on the same idea – i.e., that the District had a duty to take reasonable measures to protect Plaintiff from an employee it knew or should have known had a dangerous propensity, which ultimately caused damage to Plaintiff” and thus, “one of them should be dismissed.” (Demurrer pp. 22-23.)

As with before, the court again agrees with Defendant that the negligence COAs are duplicative based upon the primary right theory.[7] Previously, the court noted that Defendant’s alleged failures “affected one primary right, and that Plaintiff’s right to be free from injury to her person.” (June 27, 2023 Final Ruling.) And when the injuries violate the same primary right, only one suit is allowed. (See Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 638-639.) Thus, regardless of the number of legal theories which the complaint states, if there is but one injury to a primary right, only one cause of action arises. (Lippert v. Bailey (1966) 241 Cal. App.2d, 376, 382.)

Here, though Plaintiff attempts to draw a distinction between the District’s failure to supervise, warn, and protect Plaintiff (1^st COA) versus the District’s failure in retaining and supervising Perpetrator (2^nd COA), the ultimate injury is the same: harm to Plaintiff.

As with the opposition to the initial demurrer, Plaintiff does not address the primary right’s theory.

Therefore, the court SUSTAINS the demurrer on the grounds of duplicity WITHOUT leave to amend. There is to be one negligence COA for negligent hiring, retention and supervision.

Previously, the court sustained the demurrer as to this COA with leave to amend. Now, the court sustains the demurrer as to the sexual battery COA without leave to amend.

Though Plaintiff provides various cases, none are instructive as they do not involve schools. (See Opp. pp. 14, 15, citing C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110 [involved a medical center]; Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852 [involved employment law]; Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169 [involved a winery]; Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73 [involved action by finance company and title insurance company]; Roberts v. Ford Aero. & Communications Corp. (1990) 224 Cal.App.3d 793 [involved an employment action]; Greenfield v. Spectrum Investment Corporation (1985) 174 Cal.App.3d 111, 120 [Personal injury action brought against employer arising out of intentional physical assault of customer by employee].

The distinction in where the cases took case is key because the courts in C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 and John R. v. Oakland Unified School Dist. (1989) 43 Cal.3d 438 have already spoken on a school district’s vicarious liability for misconduct of its employees that are outside the scope of employment. Though admittedly Hart expanded public school districts' potential liability from the John R. standard,[8] the Hart court carefully noted that its decision continues the California practice established in John R. of immunizing public-school districts from vicarious liability for its employees' intentional sexual misconduct, as emphasized by the focus on a negligent hiring, supervising, and retaining claim.[9] Thus, as binding authority has provided immunity for vicarious liability for the intentional conduct of school personnel based upon similar facts (i.e., allegations that the district turned a blind eye to a school personnel’s sexual misconduct), this court is unwilling and unable to contravene such a ruling by holding otherwise via merely a different form of liability.

What is more, as noted above, statutory authority is required for claims against a public entity. Here, though the 4^th COA is predicated upon 815.2, Government Code sections 815.2 codifies the concept of vicarious liability, not direct liability[10] nor ratification. Thus, Plaintiff has not provided a statutory basis for liability for sexual battery. (See also Demurrer p. 24.)

Thus, absent allegations that school personnel (e.g., the principal Nero or Dean Pruitt) “voluntary elected to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him” (Rakestraw, supra, 8 Cal.3d at p. 73), a sexual battery COA fails.

Therefore, the court SUSTAINS the demurrer as to the 4^th COA for sexual battery WITHOUT leave to amend.

In sum, at this point, one of the negligence COAs is to be dismissed and as is the sexual battery COA. That leaves one negligence COA and an IIED COA. With sufficient facts pled as the foregoing COAs, the court will now turn to the constitutional issue.

As a prefatory matter, the court notes that as of October 10, 2023, AB 452 was passed which eliminates the statute of limitations (“SOL”) for sexual assault cases arising after January 1, 2024.

Additionally, the court acknowledges that the legislative branch is entitled to deference from the courts because of the constitutional separation of powers, meaning courts presume legislative is valid. (California Chamber of Commerce v. State Air Resources Bd. (2017) 10 Cal.App.5th 604, 651-652). That said, the separation of powers principles allows courts to interpret statutes, leaving the legislature with the task of revising it as it deems wise. (Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745.)

Preliminary comments aside, the court now turns to Defendant’s argument that AB 218 is unconstitutional as it violates the Gifts Clause.

In 2019, the California Legislature passed Assembly Bill 218 (“AB 218”), which took effect January 1, 2020, and made several significant changes to Code of Civil Procedure section 340.1 (“CCP § 340.1”)—the statute of limitations for claims of childhood sexual abuse. Among other things, the law revives all claims of childhood sexual abuse not previously litigated to finality for a 3-year period; it extends the SOL for such claims to 22 years after the age of majority (or age 40); it authorizes treble damages for “cover ups”; and it retroactively eliminates the protection previously afforded to public school districts by Government Code section 905, subdivision (m), which provided a bright-line rule that public entities could not be held liable for abuse claims arising from conduct occurring prior to January 1, 2009.

In an action for recovery of damages suffered as a result of childhood sexual assault, the time for commencement of the action shall be within 22 years of the date the plaintiff attains the age of majority or within five 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 assault, whichever period expires later . . . (q) Notwithstanding any other law, a claim for damages described in paragraphs (1) through (3), inclusive, of subdivision (a) that has not been litigated to finality and that would otherwise be barred as of January 1, 2020, because the applicable statute of limitations, claim presentation deadline, or any other time limit had expired, is revived, and these claims may be commenced within three years of January 1, 2020. A plaintiff shall have the later of the three-year time period under this subdivision or the time period under subdivision (a) as amended by the act that added this subdivision.

Defendant argues that revival of the SOL does not also revive, or otherwise affect, the Government Claim filing requirement.[11] Unless there is an exception, compliance with the claim filing requirement is a substantive element of a plaintiff’s cause of action against a public entity. Accordingly, prior to 2020, Plaintiff’s claims (for events occurring in 1985) were subject to the claim filing requirement. Effectively, Plaintiff’s failure to submit a government claim results in the lack of an enforceable COA. In fact, the court in Perez v. Roe 1 (2006) 146 Cal.App.4th 171 struck down, as unconstitutional, the Legislature’s attempt to revive all past claims for childhood sexual abuse, even those that had been previously dismissed because of an expired statute of limitations. (Demurrer p. 12.) Accordingly, with no viable claim, the Legislature’s subsequent effort (via AB 218) to create liability where there previously was none, constitutes an improper gift of public funds and violates California Constitution, Article XVI, § 6 (the “Gifts Clause”). (See generally Demurrer p. 11, citing Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, 210-212, DiCampli-Mintz v. Cnty. of Santa Clara (2012) 55 Cal. 4th 983, 990.

For reasons to be discussed below, the court determines that the AB 218 does not invoke the Gifts Clause.

The Gift Clause prohibits the Legislature from making “any gift or authorize the making of any gift, or any public money or thing of value to any individual, municipal or other corporation whatever.” (Cal. Const. Art. XVI, Sec. 6.)[12] As observed by the state Supreme Court in Stevenson v. Colgan (1891) 91 Cal. 649:

By these provisions of the constitution, there is denied to the legislature the right to make direct appropriations to individuals from general considerations of charity or gratitude, or because of some supposed oral obligation resting upon the people of the state, and such as a just and generous man, although under no legal liability so to do, might be willing to recognize in his dealings with others. It was because of abuses which had crept into legislation by reason of the unlimited power theretofore exercised by the legislature in determining what individual claims should be recognized by private statute, and to relieve in some degree legislators from the importunities of persons interested in securing such appropriations, that the power of the legislature was thus limited by the present constitution of this state. (Id. at p. 651, italics added.)[13]

This focus on gift and extra compensation prohibitions of the constitution was not arbitrarily read into the state Constitution. “The most important changes made in the new constitution centered around the power of the legislature and the position it should occupy. As previously stated, there had been much opposition to and fear of previous legislature . . . Interesting debates took place on the question of prohibition of the extension of state credit, the prohibition of grants to religious societies by the Legislature and sub-divisions of the State, and on the capacity of the Legislature to provide for orphan and old folks' home.” (Sargent, The California Constitutional Convention of 1878-9, 6 Cal.L.Rev. 1, 8-9, italics added.) Article IV, section 32 (now art. XVI, section 6) was to prevent the arbitrary payment to individuals “who were constantly asking the legislature to consider their misfortunes in pity, and regard them as deserving subjects of public benevolence.” (Miller v. Dunn (1887) 72 Cal.462, 468.) Hence, lobbying was made a felony both as to the lobbyist and guilty legislator. (Id. at p. 10.) Not only was the distrust of legislative largesse a concern in the convention of 1879, but of the country’s constitution. “When the Americans set up their new, independent government, they brought an original attitude towards offices and gifts which separated them from Europe. Gifts, which were part of European diplomatic culture, were recast as corrupt influences. And offices were viewed with fear of their corrupting power, given the examples of Europe. The ‘corner-stone’ of the new Constitution, according to one delegate, was the provision designed to prevent lucrative offices from being sold and traded for political power.” (Zephyr Teachout, Gifts, Offices, And Corruption, 107 NW. U. L. REV. COLLOQUY 30 (2012), italics added.) Thus, whether the state constitution or the federal constitution, both contain a “structural commitment to fighting corruption.” (Ibid, italics added.)

With that backdrop, the Gifts Clause can be reasonably interpreted as an anti-corruption clause, but Defendant has not provided an argument nor analysis as to how AB 218—which merely simply provides Plaintiff and those similarly situated with a forum to come forward and face their abusers (RJN Ex. 4, p. 28 of 160 of PDF)—amounts to corruption (e.g., giving of a gift for a self-serving benefit of a legislator). Absent such a showing, the court need not reach Defendant’s other arguments related to this issue (e.g., creation of liability when none existed).

Based on the foregoing, the demurrer is SUSTAINED in so far as one of the negligence COAs is dismissed and the sexual battery COA is dismissed.

[1] Upon review of the meet and confer letter and response, the court determines the parties met and conferred in good faith.

[2] As neither party’s RJN provides binding authority, the court declines to take judicial notice. That said, pursuant to Evidence Code section 452, the court takes judicial notice of Plaintiff’s Exhibits 1-5 as they are official acts or reports of the California Legislature in connection with the enactment of Assembly Bill 218 during the 2019-2020 Legislative Session.

[3] Aside from the constitutional argument, much of the arguments and cited cases are similar to the demurrer to the original complaint. Therefore, if the party does not engage in a thorough analysis as to this instant demurrer, the court directs the parties to the court’s previous final ruling.

[4] “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”

[5] While Government Code section 815.6 provides that a public entity may be found liable when it is under a mandatory duty imposed by an “enactment” that serves the purpose of protecting against a specific risk, the complaint is not largely predicated upon a mandatory duty. (Only mandatory duty alleged is mandatory reporting (FAC ¶22.)) Plus, a breach of a statutorily imposed duty owed by the entity to the injured party is required for direct claims (see William S. Hart, 53 Cal.4th at p. 867), here, however, the basis for liability against the district is vicarious liability, as evidenced by citation to Government Code section 815.2.

[6] The Reply does not address Government Code sections 815.2 and 820, though raised by Plaintiff in opposition, suggesting this requirement is met.

[7] See previous ruling for in-depth discussion.

[8] In John R., the court narrowly focused on public school districts' vicarious liability for sexual abuse committed by teachers. (Id. at 949 (“The principal question before us is whether the school district that employed the teacher can be held vicariously liable for the teacher's acts [of sexual misconduct] under the doctrine of respondeat superior.”). In comparison, the William S. Hart court focused more broadly on school districts' potential liability for the negligent supervision of all administrative or supervisory school district employees. (C.A. v. William S. Hart Union Sch. Dist., 270 P.3d 699, 701-02 (Cal. 2012) (“On review, the question presented is whether the District may be found vicariously liable for the acts of its employees... not for the acts of the counselor, which were outside the scope of her employment... but for the negligence of supervisory or administrative personnel.”).

[9] (Hart, 53 Cal.4th at p. 878 [“and have followed John R.'s suggestion that these remedial goals are best addressed “by holding school districts to the exercise of due care” in their administrators' and supervisors' “selection of [instructional] employees and the close monitoring of their conduct,” rather than by making districts vicariously liable for the intentional sexual misconduct of teachers and other employees.”].)

[10] Id. at p. 874 [“As no statute made a public entity liable for this type of negligence, no direct liability could be established under section 815.”].)

[11] “The intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances.” (Demurrer p. 13, quoting Zelig v. Cnty. of Los Angeles (2002) 27 Cal. 4th 1112, 1127–28.)

[12] The term ‘gift’ in the constitutional provision ‘includes all appropriations of public money for which there is no authority or enforceable claim,’ even if there is a moral or equitable obligation.” (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 450 [quoting Conlin v. Board of Supervisors (1893) 99 Cal. 17, 21-22].)

[13] As Stevenson was decided in 1891, twelve years after the Convention of 1879, the court discussed Article 4, Sections 31 and 32 of the California Constitution, which is the substantive equivalent of article XVI, section 6 (‘Public Finance’). Though the use of the word “direct” appropriations to individuals has been removed, the focus on “individuals” remains. The Reply does not address Stevenson, though raised (tersely) by Plaintiff in Opposition. (Opp. p. 7.)