Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This action arises from an alleged child sexual abuse.  Plaintiff John Doe (A.G.) alleges he was sexually abused by a former employee of Defendant City of Santa Monica, Eric Uller.  Plaintiff alleges that the abuse began in 2003 when he was 11 and continued for 2.5 years until 2005.  During that period, Uller sexually abused Plaintiff multiple times, including oral and anal rape.      

The operative complaint alleges three claims for (1) negligence – negligent supervision, (2) negligence – negligent hiring and retention, and (3) negligent infliction of emotional distress.   

This hearing is on the City’s demurrer to the Complaint.  The City argues that the Complaint fails to state facts supporting the timely presentation element of Plaintiff’s causes of action against the City, a public entity, for pre-2009 childhood sexual assault, and the Legislature’s retroactive elimination of the claim presentation element from claims arising out of pre-2009 childhood sexual abuse is constitutionally invalid because it constitutes an appropriation of public funds in violation of Article XVI section 6 of the California constitution.   

MEET AND CONFER 

Code Civ. Proc. § 430.41 5 requires that before the filing of a demurrer, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing its meet and confer efforts.  (Code Civ. Proc. § 430.41(a)(3).)  The City submits the declaration of Henry Gonzalez which shows the parties met and conferred by telephone which satisfies the requirements of Code Civ. Proc. § 430.41.    

LEGAL STANDARD 

A demurrer tests the legal sufficiency of the allegations in a complaint.  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

The City argues that plaintiff failed to comply with the claims presentation requirements of Cal. Gov. Code §905, and AB 218’s retroactive elimination of §905 requirements for childhood sexual abuse claims is unconstitutional.  The Court disagrees. 

In ruling on the constitutionality of a statute, the Supreme Court has held: “Courts should exercise judicial restraint in passing upon the acts of coordinate branches of government; the presumption is in favor of constitutionality, and the invalidity of the legislation must be clear before it can be declared unconstitutional.”  (Dittus v. Cranston (1959) 53 Cal.2d 284, 286.)  Legislative enactments are “presumed to be valid.”  (Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 780.)  As a general rule, statutes should be construed, if reasonably possible, to avoid finding them unconstitutional.  (Tuffli v. Governing Board (1994) 30 Cal.App.4th 1398, 1340.) 

Here, to proceed civilly against a public entity, a plaintiff must first timely present the claim according to statutory requirements.¿ (Cal. Gov. Code §905.)  Absent such a timely claim, no action for damages can be filed against the public entity.  (Williams v. Horvath (1976) 16 Cal.3d 834, 838; Gov. Code §954.)  AB 218¿allowed for revival of otherwise time-barred civil actions for childhood sexual abuse if filed by December 31, 2022 (Cal. Code of Civ. Proc. §340.1(q)) and exempts these claims from the¿§905¿requirement (Cal. Gov. Code §905(m)).   

The City argues the waiver of the tort claim requirement constitutes a gift of public money in violation of Article XVI Section 6 of the California Constitution.¿ That section states the legislature may not “make or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever[.]”  The term “gift” is not limited to the transfer of personal property without consideration, but includes all appropriations of public money, for which there is no authority or enforceable claim.  (Conlin v. Board of Sup'rs of City and County of San Francisco¿(1893) 99 Cal. 17, 21.) 

Defendant cites¿in support to Conlin v. Bd. of Supervisors of the City & County of San Francisco (1893) 99 Cal. 17  These cases are distinguishable because they involve acts by municipal legislatures that ordered direct appropriation of funds to specific individuals. 

In Conlin, the Legislature passed an act authorizing the City & County of San Francisco to pay John Conlin, specifically, $54,015 for work done upon public streets pursuant to a contract that remained unpaid.  That case involved appropriation of public funds to a particular person’s benefit, not for a public purpose.  (Conlin¿at 99 Cal. at 20.) 

In Powell, the Legislature passed a law providing for the payment of juror fees in all counties.¿ At the time of the juror’s service, there was no law making such services a charge against the City and County of San Francisco, and the court concluded the creation of such liability was an unconstitutional gift of public funds.  (Powell, 138 Cal. at 274.)   

Unlike Conlin and Powell, AB 218 did not attempt to “create” liability where none had previously ever existed; it merely revives a claim that was previously time-barred.  (Coats v. New Haven Unified School District¿(2020) 46 Cal.App.5th 415, 430–431.)  The victims of sex abuse must still prove their claims in court.     

Likewise,¿the City’s citation to Chapman¿is misplaced as Chapman actually supports Plaintiff’s position.  There, the plaintiff sued the state for the loss of its coal when a large part of the wharf where the coal was stored broke away from the wharf due to the State’s alleged negligence.  (Id.¿at 692.)  Plaintiff sued for the loss.  At the time, such claims could only be presented to the Board of Examiners and could not be brought in court.  (Id. at 693-94.)  Plaintiff submitted his claim for damages to the Board, and the Board rejected the claim.  Because the claims process barred his suit, the plaintiff could not bring an action in Court.  (Id.)  In 1893, the State passed a law allowing those whose claims had been rejected by the Board to now sue the State in court.  (Id. at 693.)  The plaintiff then brought an action under the new statute.   

The defendant argued that the 1893 statute violated the gift clause.  The Supreme Court rejected the argument.  The Court explained that while the 1893 statute gave the plaintiff the “right to sue the state” in court, this was not a gift.  The statute did not create a new claim because the plaintiff always had a claim; plaintiff just lacked a judicial remedy for a violation.  (Id. at 696.)  “[T]he legislature did not create any liability or cause of action against the state where none existed before.  The state was always liable upon its contracts, and the act … merely gave an additional remedy for the enforcement of such liability.”  (Id.)   

Here too, the amendment reviving previously barred claims concerns claims for liability that previously existed.  AB 218 did not create a new liability.  It simply removed a hurdle to the initiation of a lawsuit against the public entity.  Under Chapman, removing such a procedural prerequisite does not violate the gift clause because it is not a creation of a new liability.  The California Court of Appeal has characterized¿AB 218’s amendments as a “revival” of a previously barred cause of action for failure to timely present a government action, not the creation of new liability.  (Coats¿at 46 Cal.App.5th at 430–431.)   

Heron v. Riley (1930) 209 Cal. 507¿held a statute allowing a “judgment to be obtained after the requirements of due process have been complied with” does not constitute a gift.¿ (Id. at 517.)  AB 218 rather than providing a direct payment, allows a judgment to be obtained after due process, so it does not award a gift. 

Defendant notes Heron found a statute imposing retroactive liability against a state entity could constitute an¿unconstitutional “gift.”   But¿AB 218¿does not impose retroactive liability to create liability where none existed before; it merely revives or extends a statute of limitations that might have previously expired.  (Coats, 46 Cal.App.5th at 430–431.)   

Defendant next argues that AB 218 does not serve a public purpose and therefore constitutes a gift of public funds.  “[T]he 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.]”¿(Jordan v. California Dept. of Motor Vehicles¿(2002) 100 Cal.App.4th 431, 450.)¿ 

The courts can infer the public purpose from other legislation or the manner in which the legislation is enacted.  (Scott v. State Bd. of Equalization¿(1996) 50 Cal.App.4th 1597, 1604.)¿ Here, 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.”  (Liebig v. Superior Court¿(1989) 209 Cal.App.3d 828, 834.)  Therefore, AB 218 clearly serves a public purpose and  does not constitute a gift.    

The City cites to Conlin to argue that “all appropriations of public money, for which there is no authority or enforceable claim” are unconstitutional gifts of public funds and this is true ‘even if there is a moral or equitable obligation’ and even where ‘a sufficient motive appears for its appropriation.”  Conlin, however did not involve a determination of whether the statute at issue served a public purpose.  “The case involved the single question of the power of the legislature to authorize and direct a municipality to make a payment of public moneys from the city treasury to a private individual who had no valid or enforceable claim against the city therfor.  There was no claim or suggestion that the moneys so directed to be paid were to be devoted to any public purpose.”  (City of Oakland v. Garrison (1924) 194 Cal. 298, 302.)       

In sum, AB 218 as codified does not provide a gift, as it does not provide a benefit to a specific individual or group, does not retroactively create liability where none existed, and serves a public purpose.  It is not unconstitutional as written or applied. 

CONCLUSION 

For the foregoing reasons, the Court OVERRULES the City of Santa Monica’s demurrer.   

DATED:  March 12, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court