Judge Gail Killefer, Case Number: 20STCV42582, Date: 2023-10-10 Tentative Ruling

On November 5, 2020, John Doe 1 filed a Complaint against Roes 1 and 2. On December 8, 2020, John Doe 1 filed the operative First Amended Complaint (“FAC”) identifying the Los Angeles Unified School District (“LAUSD”) and Does 1 to 50 as Defendants and alleging a claim for personal injuries and damages arising from childhood sexual abuse.

On February 2, 2022, John Doe 2 also filed a Complaint for personal injuries and damages arising from childhood sexual abuse (LASC Case No. 22STCV04077). John Doe 2 filed the operative First Amended Complaint (“FAC”) on March 22, 2022, naming LAUSD as a defendant.

On July 13, 2022, the court consolidated the cases, with this case (LASC Case No. 20STCV42582) being the lead case.

On September 23, 2023, and September 27, 2023, John Doe 1 and John Doe 2 (collectively “Plaintiffs”), respectively filed opposing papers.

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

1) Exhibit 1: Notice of Entry or Order in Jane Doe #1 et al. v. Acalanes Union High School District et al., Contra Costa County Superior Court, Case No. C22-02613 (hereinafter “the AUHSD Action”) on the ruling by the Hon. Danielle K. Douglas dated June 13, 2023, on defendant’s demurrer to plaintiffs’ complaint.

2) Exhibit 2: Defendant Acalanes Union High School District’s memorandum of points and authorities in support of demurrer in the AUHSD Action filed February 23, 2023.

3) Exhibit 3: Judge Douglas tentative ruling in the AUHSD Action dated April 10, 2023.

4) Exhibit 4: Judge Douglas Order After Hearing requesting supplemental briefing in the AUHSD Action dated May 3, 2023, filed on May 4, 2023.

Plaintiffs object to LAUSD’s request for judicial notice on the basis that the case Defendants request judicial notice of, involves different parties, in a different venue. The fact that the trial court opinion is from another case does not mean that the court cannot take judicial notice of that opinion under Evid. Code § 452(d), nor does it mean that the court “will unquestionably adopt its findings.” (See Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1098.) “‘Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’” (People v. Woodell (1998) 17 Cal.4th 969, 455 citing Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7.)

Accordingly, the court grants Defendant LAUSD’s request for judicial notice.[1]

1) Exhibit 1: Assem. Floor Analysis, Analysis of Assem. Bill No. 218 (2019-2020 Reg. Sess.) as amended August 30, 2019.

2) Exhibit 2: Sen. Rules Com., Analysis of Assem. Bill No. 218 (2019-2020 Reg. Sess.) as amended August 30, 2019.

3) Exhibit 3: Sen. Com. on Appropriations, Analysis of Assem. Bill No. 218 (2019-2020 Reg. Sess.) as amended August 30, 2019.

4) Exhibit 4: Sen. Com. on Appropriations, Analysis of Assem. Bill No. 218 (2019-2020 Reg. Sess.) as amended March 25, 2019.

5) Exhibit 5: Sen. Judiciary Com., Analysis of Assem. Bill No. 218 (2019-2020 Reg. Sess.) as amended March 25, 2019.

6) Exhibit 6: Assem. Floor Analysis, Third Reading, Analysis of Assem. Bill. No. 218 (2019-2020 Reg. Sess.) as amended March 25, 2019.

7) Exhibit 7: Assem. Floor Analysis, Third Reading, Analysis of Assem. Bill. No. 218 (2019-2020 Reg. Sess.) as introduced January 16, 2019

8) Exhibit 8: Assem. Com. on Judiciary, Analysis of Assem. Bill No. 218 (2019-2020 Reg. Sess.) as introduced January 16, 2019.

Plaintiffs’ request for judicial notice is granted. (See K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th 717, 740 [taking judicial notice of Assembly Bill 218 bill history].)

Discussion

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)¿¿

John Doe 1 brings this action against LAUSD due to sexual abuse that occurred around 1978 through 1982. (John Doe 1, FAC ¶ 18.) John Doe 2 alleges the abuse occurred in 1973. (John Doe 2, FAC ¶ 17.) LAUSD has now filed a motion for judgment on the pleadings against each Plaintiff. Defendant LAUSD alleges that Assembly Bill 218 (“AB 218”), which further amended CCP § 340.1 in 2019, is unconstitutional because it retroactively strips governmental immunity from public entities in violation of Cal. Const. art. XVI, § 6, which prohibits gifts of public funds.

The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State, or of any county, city and county, city, township or other political corporation or subdivision of the State now existing, or that may be hereafter established, in aid of or to any person, association, or corporation, whether municipal or otherwise, or to pledge the credit thereof, in any manner whatever, for the payment of the liabilities of any individual, association, municipal or other corporation whatever; nor shall it have 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 whatever[.]

(Cal. Const., art. XVI, § 6.) LAUSD argues that AB 218 not only extended the time for filing claims for childhood sexual assault but also created a revival window for lapsed claims and provided retroactive relief from the claim presentation requirements of the California Tort Claims Act. LAUSD argues that AB 218 is unconstitutional because it violates the prohibition against the gift of public funds. In other words, “AB 218 purports to retroactively include acts prior to 2009 as not requiring compliance with the Government Claims Act. Herein lies the Constitutional violation.” (MJOP as John Doe 1 at p. 3:2-3 [emphasis original].)

LAUSD asserts that “the legislature has no power to create a liability against the state for any past act of negligence upon the part of its officers; and a statute undertaking to assume a liability upon the part of the state for the negligence of its officers in cases where, under the general rules of law, a master would have to respond for the negligent acts of his servant, would only be valid in so far as it might relate to future acts of negligence.” (Chapman v. State (1894) 104 Cal. 690, 693.) The California Supreme Court in Heron v. Riley (1930) 209 Cal. 507 further explained:

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.

In other words, LAUSD argues that pursuant to Chapman and Heron, the Legislature cannot create tort liability against the State and its political subdivision for past acts of negligence, which is what AB 218 permits by extending the statute of limitations for claims of childhood sexual assault and reviving certain lapsed claims and exempting them from the claim presentation requirement. (See CCP, § 340.1; Gov. Code, § 905(m), (p).)

The parties do not dispute that the Legislature has the authority to enlarge the statute of limitations. (See Quarry v. Doe I (2012) 53 Cal.4th 945, 955 (“Quarry”) [“The Legislature has authority to establish—and to enlarge—limitations periods.].) “Code of Civil Procedure Section 340.1 is, for the most part, a statute of limitations.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 536.) However, the claim presentation requirement has been described as an element of a plaintiff’s cause of action rather than a procedural hurdle akin to a statute of limitations. “With certain exceptions (§ 905), the timely filing of a written government claim is an element that a plaintiff is required to prove in order to prevail on his or her cause of action.” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1119 [italics original].)

The court is unpersuaded that the Legislature lacks the power to revive lapsed claims[3] and waive its sovereign immunity by exempting said claims from the claim presentation requirement of the Government Tort Claims Act. The California Supreme Court’s opinions in Chapman and Heron were decided prior to the enactment of the Government Tort Claims Act in 1963.^{^[4]} In Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, the California Supreme Court recounted the history of the Government Tort Claims Act:

Enacted in 1963, the Government Claims Act (GCA or Act) is a comprehensive statutory scheme governing the liabilities and immunities of public entities and public employees for torts. [Citation.] For many decades before the Act, 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].

In Williams v. Horvath (1976) 16 Cal.3d 834, the California Supreme Court explained that following “following our decision in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, “the Tort Claims Act” was enacted. (Id. at p. 838.) “Government Code section 815 restores sovereign immunity in California except as provided in the Tort Claims Act or other statute. Thus the intent of the act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.” (Id.)

Consequently, as specifically articulated in Gov. Code, § 905 (m), the Legislature has the authority to exempt “[c]laims 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” from the claim presentation requirement.

Furthermore, the Legislature has the authority to revive lapsed claims. In Quarry v. Doe I (2012) 53 Cal.4th 945, the California Supreme Court recognized that CCP § 340.1 revives lapsed claims, and the “revival of the claim is seen as a retroactive application of the law under an enlarged statute of limitations.” (Quarry, supra, 53 Cal.4th at p. 956.) “The Legislature has authority to establish—and to enlarge—limitations periods. (Id. at p. 955.) “Retroactive application of statutory revisions cannot, however, reopen cases that have been litigated to final judgments.” (Safechuck v. MJJ Productions, Inc. (2020) 43 Cal.App.5th 1094, 1099–1100 [internal citations and quotations omitted].) This is consistent with CCP § 340.1(q), which limits a claim for damages due to childhood sexual abuse to claims “that [have] not been litigated to finality” and revives claims “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[.]” (CCP, § 340.1(q).)

Although the defendant in Quarry was the Roman Catholic Bishop of Oakland, rather than a public entity, the California Supreme Court recognized the applicability of revival of lapsed claims as applied to a public entity in Los Angeles Unified School Dist. v. Superior Court (2023) 14 Cal.5th 758.

[AB 218] made several changes to Code of Civil Procedure section 340.1. Among these adjustments, Assembly Bill No. 218 extended the time for filing claims for childhood sexual assault (Code Civ. Proc., § 340.1, subds. (a), (c)) and created a revival window for lapsed claims (id., subd. (q)), which included relief from the claim presentation deadlines within the Government Claims Act. (Gov. Code, § 905 et seq.) The 2019 amendment also revised section 340.1(b)(1) to provide that in an action seeking damages suffered due to childhood sexual assault, “a person who is sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.” (Ibid., as amended by Stats. 2019, ch. 861, § 1.)

(Id. at p. 777.) The only limitation to CCP § 340.1 that the California Supreme Court acknowledged was that Gov. Code § 818 prohibited the recovery of treble damages under CCP § 340.1(b)(1) against a public entity. (Id. at p. 790.) The California Supreme Court in Los Angeles Unified School Dist. made no mention that the California Legislature was prohibited from reviving lapsed claims against the State and waiving the claim presentation requirement to those lapsed claims.

Prior to the enactment of AB 218, the California Supreme Court in Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201 (“Shirk”), held that despite the 2009 amendments reviving certain claims for childhood sexual abuse that had lapsed due to the expiration of the statutes of limitations, the plaintiff’s claims in Shirk were nevertheless barred due to her failure to present a timely claim under the Government Claims Act. (Id. at p. 212-214.) The Legislature responded by enacting Senate Bill No. 640^{^[5]} and expressly exempting claims based on childhood sexual abuse from the claim presentation requirement, the tort claims requirements, and the six-month notice. (Coats v. New Haven Unified School District (2020) 46 Cal.App.5th 415, 422 (“Coats”) [“Subdivision (m) was added to section 905 in 2008, in direct response to Shirk.”].)

AB 218 amended Gov. Code § 905(m) by deleting the limitation that the waiver from the claim presentation requirement applied to conduct “occurring on or after January 1, 2009” and adding subsection (p) to the Gov. Code § 905, expressly stating that “changes made to this section by the act that added this subdivision are retroactive and apply to any action commenced on or after the date of enactment of that act, and to any action filed before the date of enactment and still pending on that date, including any action or causes of action that would have been barred by the laws in effect before the date of enactment.” (Gov. Code, § 905(p).

Therefore, the court concludes that the Legislature expressly intended and had the authority to revive lapsed claims, including lapsed claims against the State. (Liebig v. Superior Court (1989) 209 Cal.App.3d 828, 830 [“[T]he Legislature has the power to retroactively extend a civil statute of limitations to revive a cause of action time-barred under the former limitations period.”]; Roman Catholic Bishop of Oakland v. Superior Court (2005) 128 Cal.App.4th 1155, 1161 [“It is equally well settled that legislation reviving the statute of limitations on civil law claims does not violate constitutional principles.”].) In analyzing Cal. Const., art. XVI, § 6, the court finds no indication that the Legislature lacks the authority to waive sovereign immunity and revive lapsed claims against the State and that doing so would be a prohibition against the gift of public funds.

Specifically, there is no indication that the revival of lapsed claims constitutes a “gift” under

Cal. Const., art. XVI, § 6. The term “gift” for purposes of Cal. Cost. Art. XVI, § 6, “‘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. California Dept. of Motor Vehicles (2002) 100 Cal.App.4th 431, 450 [citation omitted].) “The determination of what constitutes a public purpose is primarily a matter for legislative discretion [Citations], which is not disturbed by the courts so long as it has a reasonable basis.” (Alameda County v. Janssen (1940) 16 Cal.2d 276, 281 (“Janssen”).) The Legislature is not required to explicitly state a public purpose, “[t]he courts may 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 public purpose of AB 218 can be inferred from its legislative history.

Finally, the legislative history of Government Code section 905, subdivision (m) confirms that the purpose of that section was ‘to ensure that victims severely damaged by childhood sexual abuse are able to seek compensation from those responsible, whether those responsible are private or public entities....’ [Citation.] The author of the legislation explained this would be accomplished ‘by specifically exempting Section 340.1 civil actions for childhood sexual abuse from government tort claim requirements, thereby treating Section 340.1 actions against public entities the same as those against private entities.’ [Citation.] Our decision is consistent with this intent.

(A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1264 [internal quotations omitted] (“A.M.”).

By enacting AB 218, the Legislature “lengthened the time within which an action for damages resulting from ‘childhood sexual assault’ could be brought and revived lapsed claim that had “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[.]” (Coats, supra, 46 Cal.App.5th 415, 423-424 citing CCP, § 340.1(r).)Therefore, the public purpose of AB 218 is to allow victims of childhood sexual assault to obtain compensation from both private and public entities.

LAUSD argues that paying judgments or settlements to Plaintiffs serves no public purpose, and thus AB 218 violates the gifts clause of the California constitution. “It is well settled that, in determining whether an appropriation of public funds or property is to be considered a gift, the primary question is whether the funds are to be used for a ‘public’ or a ‘private’ purpose. If they are for a ‘public purpose’, they are not a gift within the meaning of [Cal. Cost. Art. XVI, § 6].” (Janssen, supra, 16 Cal.2d at p. 281.)

Defendants cite Orange County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195 for the proposition that the appropriation of public funds for the payment of unenforceable claims serves no public purpose. Orange County Foundation v. Irvine Co. (1983) held that the settlement of a good faith dispute between the State and a private party in an appropriate use of public funds and is not a gift barred by art. XVI, § 6 of the California constitution “because the relinquishment of a colorable legal claim in return for settlement funds paid by the State is good consideration and accomplishes a valid public purpose.” (Id. at 200.) However, if the claim is invalid or unfounded, a promise to compromise “is not valuable consideration.” (Id. p. 201 [italics original].) Here, LAUSD fails to show that Plaintiffs claims are invalid or unenforceable since AB 218 revived Plaintiffs’ claims.

As explained above, the public purpose of CCP § 340.1 is to extend the statute of limitations and revive certain claims for victims of childhood sexual abuse and to allow them to bring claims against both private and public entities. (See A.M, supra, 3 Cal.App.5th at p. 1264.) Plaintiffs will only be entitled to compensation for damages under CCP § 340.1 if their claims are found to be valid or at least “colorable.” (Orange County Foundation, supra, 139 Cal.App.3d at p. 200; see also Property California SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1167.)

The court finds that Defendant LAUSD has failed to show the revival of lapsed childhood claims for sexual assault against the State is unconstitutional and in violation Cal. Const. art. XVI, § 6. Therefore, LAUSD’s motions for judgment on the pleadings are denied.

[1] In its motion, LAUSD asks as the court to consider the decision in Jane Doe #1 et al. v. Acalanes Union High School District et al., Contra Costa County Superior Court, Case No. C22-02613 (hereinafter “the AUHSD Action”). This is in violation of CRC, rule 8.1115(a), which specifically states: “Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” “It is well-established that, under this rule, nonpublished opinions have no precedential value.” (Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 109.) Therefore, any reference made to the AUHSD action in Defendant LAUSD’s moving paper sis stricken for not being in conformity with the rules of court. (CCP, § 436.)

[2] CCP § 439(a) requires the moving part to meet and confer in person or by telephone with the party who filed the pleading before filing a motion for judgment on the pleadings. The meet and confer requirement has been met. (Hicks Decl. ¶ 3.)

[3] The prohibition on Ex Post Facto laws, or laws applied after the fact, have only been applied to criminal statutes and the court is unaware of its application being extended to civil statutes. (See Collins v. Youngblood (1990) 497 U.S. 37, 42 [“[C]constitutional prohibition on ex post facto laws applies only to penal statutes[.]”.]; Galvan v. Press (1954) 347 U.S. 522, 531 [Declining to extend Ex Post Facto Clause to deportation proceedings and reiterating that it is “applicable only to punitive legislation[.]”].)

[4] “Government Tort Claims Act” replaced the old “Tort Claims Act” label as explained in City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 742, fn. 7. [“Government Claims Act” is an appropriately inclusive term and an apt short version of the comprehensive title bestowed by the 1963 Legislature: ‘Claims and Actions Against Public Entities and Public Employees.’ (Stats.1963, ch. 1681, p. 3267.)”.].)

[5] Senate Bill No. 640 waived the requirement to present a claim within 6 months after the accrual of the cause of action “to claims arising out of conduct occurring on or after January 1, 2009.” (,2008 Cal. Legis. Serv. Ch. 383 (S.B. 640).)