Judge: Christopher K. Lui, Case: 22STCV19003, Date: 2024-03-19 Tentative Ruling

Case Number: 22STCV19003    Hearing Date: March 19, 2024    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

This is a revival action pursuant to Civ. Proc. Code, § 340.1, alleging Plaintiff was sexually abused and assaulted by Defendants’ employee while Plaintiff was a student at school.

Defendant Los Angeles Unified School District moves for judgment on the pleadings as to the Second Amended Complaint.

TENTATIVE RULING

Defendant Los Angeles Unified School District’s motion for judgment on the pleadings as to the Second Amended Complaint is DENIED in its entirety.

ANALYSIS

Motion For Judgment On The Pleadings

Request For Judicial Notice

            Defendant’s request that the Court take judicial notice of California 2008 Legislative Search, 2008 Potion of 2007-2008 Regular Session, Chapter 383, S.B. No. 640 is GRANTED. The Court may take judicial notice of legislative history materials relevant to a material issue. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544 n.4.)

            Plaintiff’s requests that the Court take judicial notice of various Superior Court rulings is DENIED as these unpublished, non-binding rulings are not relevant to this Court’s determination of this motion. The Court need only take judicial notice of relevant materials. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled in part on other grounds noted in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The Court may deny a request for judicial notice of material unnecessary to its decision. (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 713.) Defendant’s objection to these requests is SUSTAINED.

Plaintiff’s request that the Court take judicial notice of Assembly floor analysis AB 218 dated August 30, 2019 is GRANTED.

Meet and Confer

            The Declaration of Jeffrey P. Wade reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 439.

Discussion

Defendant Los Angeles Unified School District moves for judgment on the pleadings on the following grounds:

1.         Entire Second Amended Complaint.

            A.        Failure To Present Government Claim.

Pursuant to Code of Civil Procedure section 438, subdivision (c)(1)(B(ii) Plaintiff Stephen Benveniste’s Second Amended Complaint fails to state a cause of action against Defendant Los Angeles Unified School District because Plaintiff failed to present a Government Claim to Los Angeles Unified School District prior to commencing suit.   Thus, Causes of Action Number 1 for Negligence and Number 4 for Negligent Hiring, Retention and Supervision fail as a matter of law.  

This argument is not persuasive because the Legislature eliminated the government claims requirement for actions for recovery of damages suffered as a result of childhood sexual assault. (Civ. Proc. Code, § 340.1(q).)

See also Gov. Code, § 905(m), which provides:

There shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) all claims for money or damages against local public entities except any of the following:

. . .

(m) Claims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual assault.

     (Gov. Code § 905(m).)

Defendant argues that the Legislature’s elimination of the government claim requirement violates the “gift clause” in creating a liability for LAUSD and other public entities where one did not previously exist, and because the legislation only served a private purpose, i.e., that certain individuals may sue. This argument is not persuasive.

Eliminating the claims presentation requirement for these cases is not creating new governmental liability where none exists—those long-standing (since 1963) statutory bases are alleged in the 2AC as follows: Government Code §§ 815.2[1], 815.4[2], and/or 815.6[3]. (2AC, ¶ 58.)

Rather, the new legislation removes one barrier—a government claim—to such liability, which Plaintiff still must prove. This may be difficult if the incidents occurred long ago, as memories fade and documentary evidence/witnesses may be unavailable.

It does not constitute a gift of public funds because Plaintiff must prove liability in order to obtain such funds by way of payment of a judgment---they are not simply being given to him without the need for a trial. And, if Plaintiff should prevail at trial, Defendant’s payment of a judgment does not constitute a gift of public money:

"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 state cannot be subjected to suits against itself except by its express consent; but it may surrender its sovereignty in that particular. It has done so in this instance through the act of its duly authorized representative, the legislature. 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. The legislature has not attempted to create a liability against the state for any past acts of negligence on the part of its officers, agents or employees -- something it could not do, and the doing of which would, in effect, be the making of a gift -- but has provided that 'hereafter' it shall be liable for certain things done which cause damage to its citizens, its liability to be first determined by an appropriate action at law.

     (Heron v. Riley (1930) 209 Cal. 507, 517 [bold emphasis and underlining added].)

            Defendant places great importance on the language in Heron that the legislature could not create a liability against the state for past acts of negligence on the part of its officer, agents or employees, which would be the making of a gift. Defendant also cites Chapman v. State (1894) 104 Cal. 690, 693, which contains the following passage:

It is also true that under section 31 of article IV of the constitution of this state, which forbids the legislature from making any gift of public money or other thing of value to any person, the legislature has no power to create a liability against the state for any such past act of negligence upon the part of its officers.

     (Italics in original.)

However, the removal of the claims presentation requirement does not create a liability, but rather revives potential liability if the plaintiff can prove it. This government claim elimination has been upheld:

In addition to the changes to Code of Civil Procedure section 340.1, Assembly Bill 218 amended Government Code section 905 by deleting from subdivision (m) the language that previously limited this exception to the government claim presentation requirement to claims arising out of conduct occurring on or after January 1, 2009, and adding subdivision (p), which made this change retroactive.

     (Coats v. New Haven Unified School Dist. (2020) 46 Cal.App.5th 415, 424.)

The present case, of course, involves revival of a cause of action barred by a claim presentation requirement, not a statute of limitations. But we are aware of no reason the Legislature should be any less able to revive claims in this context, as it expressly did in Assembly Bill 218: “Notwithstanding any other provision of law, any 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.” (§ 340.1, subd. (q), italics added.)

The express inclusion of “claim presentation deadline[s]” in Assembly Bill 218 distinguishes it from the 2002 amendment to Code of Civil Procedure section 340.1, which revived claims “that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired. …” (Stats. 2002, ch. 149, § 1, p. 752.) That revival provision, our Supreme Court held, did not alter the bar imposed by a plaintiff's failure to file a claim with the public entity defendant: “‘[T]he government claim presentation deadline is not a statute of limitations. Had the Legislature intended to also revive in subdivision (c) the claim presentation deadline under the government claims statute, it could have easily said so. It did not.’” (Rubenstein, supra, 3 Cal.5th at p. 907, quoting Shirk, supra, 42 Cal.4th at p. 213.) In Assembly Bill 218, the Legislature made clear its intent to revive causes of action previously barred by government claims presentation requirements.

Rubenstein noted that the claim presentation requirement “‘is based on a recognition of the special status of public entities, according them greater protections than nonpublic entity defendants, because unlike nonpublic defendants, public entities whose acts or omissions are alleged to have caused harm will incur costs that must ultimately be borne by the taxpayers.’” (Rubenstein, supra, 3 Cal.5th at p. 908, quoting  [*429] Shirk, supra, 42 Cal.4th at p. 213.) In that case, the plaintiff argued that the claim she filed with a public entity defendant in 2012, when she became aware of memories of sexual abuse by her public school athletic coach from 1993 to 1994, was timely. Accepting the plaintiff's argument that her claim accrued when she became aware of the past abuse, the court said, would contravene the policies underlying the claim presentation requirement: “A public entity cannot plan for a fiscal year if it may be subject to an unknown and unknowable number of ancient claims like this one. It is probably too late today to meaningfully investigate the facts behind the claim and reach reliable conclusions; even if some investigation is still possible, a claim timely filed in 1993 or 1994 would certainly have been easier to investigate and would have allowed for more reliable conclusions. It is also too late to prevent the alleged abuser from abusing again.” (Rubenstein, at p. 914.)

The Rubenstein court observed that in responding to Shirk by adding subdivision (m) to section 905, the Legislature had “endeavored to take account of these policy concerns,” creating the exception to the claims requirement for childhood sexual abuse cases but making it prospective only. (Rubenstein, supra, 3 Cal.5th at p. 914.) “[T]he amendment shows that the Legislature has attempted to balance the important objectives underlying the statutory scheme with practical concerns about permitting the litigation of old claims against governmental entities.” (Ibid.)

In Assembly Bill 218, the Legislature has again attempted to balance the competing concerns of protecting public entities from stale claims and allowing victims of childhood sexual abuse to seek compensation. This time, the Legislature came to a different conclusion, with an express revival provision for claims against public entities as well as those against private defendants. The District attempts to cast doubt upon the constitutionality of [*430]  retroactive application of the legislation by pointing to the magnitude of the changes it makes, not only adding the previously discussed provision for treble damages in cases of coverup of childhood sexual abuse but extending the statute of limitations 14 years longer than under prior law (to 22 years after the age of majority), reviving claims that have not been litigated to finality for a three-year period regardless of when the abuse allegedly occurred (“even if the abuse allegedly occurred 100 years ago”), and eliminating the protection section 905, subdivision (m), previously provided for claims arising from conduct that occurred prior to 2009. None of these changes are implicated in the present case. As we have said, there are no allegations to trigger the treble damages provision. Appellants' suit was filed when E.D. was 19 years old, well within the prior statute of limitations (eight years from age of majority). The alleged abuse last occurred only a year and a half prior to the filing of the complaint, far from the “100 years ago” invoked by the District in characterizing the amendment. And the case involves alleged abuse in 2014 and 2015, not prior to 2009. The District offers no reason for finding the claim revival provisions of Assembly Bill 218 unconstitutional.

In light of the express revival provision in subdivision (q) of Code of Civil Procedure section 340.1, it is not necessary for us to determine the merits of appellants' argument that the trial court erred in finding the District's claim presentation requirement was valid under section 935 despite the exception for childhood sexual abuse claims stated in section 905, subdivision (m), either due to the legislative intent reflected in section 905, subdivision (m), itself or as clarified by Senate Bill No. 1053's (2017–2018 Reg. Sess.) addition of the exception to section 935 for claims of childhood sexual abuse. It is apparent from the history of amendments to these statutes, however, that the Legislature has consistently worked to expand the ability of victims of childhood sexual abuse to seek compensation from the responsible parties, on several occasions in direct response to restrictive judicial opinions. In the face of a revival provision expressly and unequivocally encompassing claims of childhood sexual abuse previously barred for failure to [*431]  present a timely government claim, it is clear we must reverse the trial court's judgment and remand for further proceedings on appellants' complaint.

(Coats v. New Haven Unified School Dist. (2020) 46 Cal. App. 5th 415, 428-31 [bold emphasis added].)

            Defendant also relies upon the principal espoused in Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431 regarding the prohibition of a gift of public money:

Section 6 of article XVI of the California Constitution provides that the Legislature has no power "to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation . . . ."  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. ( Conlin v. Board of Supervisors (1893) 99 Cal. 17, 21-22, [33 P. 753].) "An appropriation of money by the legislature for the relief of one who has no legal claim therefor must be regarded as a gift within the meaning of that term, as used in this section, and it is none the less a gift that a sufficient motive appears for its appropriation, if the motive does not rest upon a valid consideration." ( Id. at p. 22.)

"It is well settled that the primary question to be considered in determining whether an appropriation of public funds is to be considered a gift is whether the funds are to be used for a public or private purpose. If they are to be used for a public purpose, they are not a gift within the meaning of this constitutional prohibition. [Citation.]" ( California Teachers Assn. v. Board of Trustees (1978) 82 Cal. App. 3d 249, 257, [146 Cal. Rptr. 850].)

(Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 450 [bold emphasis added].)

            Here, the legislature has not “appropriated” any public money: indeed, Plaintiff may never recover any damages if he cannot prove his case, and even if he does, as noted above, the payment of a judgment does not constitute a gift.

            Defendant’s citation to Bourn v. Hart (1892) 93 Cal. 321 is unavailing, as the legislature in that case enacted a specific appropriation of public money payable to a named individual or certain individuals—a situation that obviously does not exist here. Likewise as to Conlin v. Board of Supervisors (1893) 99 Cal. 17, and Powell v. Phelan (1903) 138 Cal. 271, upon which Defendant also relies.

            In any event, even if considered a gift, the claims presentation elimination serves a public, not private purpose, as can be gleaned from this legislative comment to AB218 (Pltf’s RJN, Exh. 12, Page 2).

COMMENTS:

Childhood sexual abuse continues to ruin children lives and continues to shock the nation because, unfortunately, perpetrators continue to abuse, often with impunity, and sometimes with the help of third parties who either choose not to get involved or actively cover-up the abuse. Whether the abuse occurred through gymnastics, swimming, school, or a religious institution, too many children have been victims of abuse and their lives have been forever impacted by that abuse. Despite the lifetime of damage that this abuse causes its victims, the state's statute of limitations restricts how long actions can be brought to recover for damages caused by childhood sexual abuse. In an effort to allow more victims of childhood sexual assault to be compensated for their injuries and, to help prevent future assaults by raising the costs for this abuse, this bill extends the civil statute of limitations for childhood sexual assault by 14 years, revives old claims for three years, and eliminates existing limitations for claims against public institutions. This bill applies equally to abuse occurring at public and private schools and applies to all local public entities. Lastly, the bill allows a victim of childhood sexual abuse to recover tremble [sic] damages against a defendant if the sexual assault is the result of a cover-up by the defendant of a prior sexual assault of a minor.

     (Bold emphasis added.)

            This argument is not persuasive.

            B.        Re: The Revival of Statute of Limitations Is Unconstitutional.

Further, Defendant argues, AB 218’s revival of the statute of limitations for statutory claims made against LAUSD is also prohibited on due process grounds under the Supreme Court’s decision in Chambers v. Gallagher (1918) 177 Cal. 704. Defendant argues that AB 218 is unconstitutional as applied to Los Angeles Unified School District. In Chambers, the Supreme Court rejected Campbell and ruled that the Legislature could not enact a new limitations period which effectively revived a cause of action after the original period had lapsed. (Id. at 709-710.)

            However, in Liebig v. Superior Court (1989) 209 Cal.App.3d 828, 830, the court expressly held that Civil Code, § 340.1 was valid and, to the extent a vested right exists in the repose of a cause of action:

. . . the law is clear that vested rights are not immune from retroactive laws when an important state interest is at stake. (Citations omitted.) In this case the important state interest espoused by section 340.1 is the increased availability of tort relief to plaintiffs who had been the victims of sexual abuse while a minor. While August complains that the trial court had no "evidence" of public policy before it, the identification of public policy can be as much an interpretive as an evidentiary exercise. The language of the retroactivity provision of section 340.1 indicates a clear legislative intent to maximize claims of sexual-abuse minor plaintiffs for as expansive a period of time as possible. The public policy is manifest from the text of the law.

 [*835]  We adopt the distinction made in Nelson between statutory and common law causes of action, and conclude that Chambers and its cognate cases are inapposite to the common law torts alleged in Lisa's complaint. Under the rationale of Nelson and Gallo, we hold that the Legislature has the power to expressly revive time-barred civil common law causes of action. This holding is consistent with the niche in our civil law occupied by statutes of limitations. "The principle is . . . well established that ' [statutorily] imposed limitations on actions are technical defenses which should be strictly construed to avoid the forfeiture of a plaintiff's rights. . . .' [Citation.] [There] is a 'strong public policy that litigation be disposed of on the merits wherever possible.'" (Citations omitted)

     (Liebig, supra, 209 Cal.App.3d at 834-35 [bold emphasis added].)

            Defendant argues that  the statutory basis for LAUSD’s liability distinguishes this from Liebig, which only applied to reviving time-barred common law causes of action. Here, the 2AC alleges four common law causes of action: (1) negligence against the LAUSD; (2) negligence against Does 2 through 25; (3) negligent hiring, retention, and supervision against the LAUSD; and (4) negligent hiring, retention, and supervision (Does 2 through 25).. .

Although there is a statutory basis for holding Defendant LAUSD liable, these actually state a basis for vicarious liability, and thus are derivative of the underlying common law liability.

(a) 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.

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.

     (Gov. Code § 815.2(a) & (b)[bold emphasis added].)

[1]

A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.

     (Gov. Code § 815.4 [bold emphasis added].)

            The effect of Gov. Code, §§ 815.2 and 815.4 is to remove immunity to the extent stated in the statutes. “[T]he Legislature enacted a comprehensive statutory scheme that wipes the slate clean of common law liabilities and immunities and replaces them with statutory provisions specifying the extent of liability or immunity. (See Gov. Code, §§ 815, 815.2, 820.)” (Leon v. County of Riverside (2023) 14 Cal. 5th 910, 928.)

As such, the holding of Campbell—and the distinction made by Liebig—does not apply here to prohibit the revival of the above causes of action against the LAUSD.

            Notably, where school district’s supervisory or administrative personnel knew or should have known that a school employee sexually harasses or abuses a student, the school district may be held liable for negligent hiring, retention and/or supervision under Gov. Code, § 815.2:

We conclude plaintiff's theory of vicarious liability for negligent hiring, retention and supervision is a legally viable one. Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable. (Citations omitted.) If a supervisory or administrative employee of the school district is proven to have breached that duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his  [*866]  injuries, and assuming no immunity provision applies, liability falls on the school district under section 815.2.

(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 865-66  [bold emphasis added].)

Within these limits, we conclude a public school district may be vicariously liable under section 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student. Whether plaintiff in this case can prove the District's administrative or supervisory personnel were actually negligent in this respect is not a question we address in this appeal from dismissal on the sustaining of a demurrer.

(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879 [bold emphasis added].

            Defendant’s argument on this basis is not persuasive.

            For the foregoing reasons, Defendant’s motion for judgment on the pleadings is DENIED in its entirety.