Judge Gail Killefer, Case Number: 22STCV23632, Date: 2024-06-05 Tentative Ruling

TENTATIVE: Defendant LAUSD’s Motion for Judgment on the Pleadings is denied. Defendant to give notice.

On July 21, 2022, James Oree Milton (“Plaintiff”) filed a Complaint against Does 1 and Does 2 to 25.

The action arises out of childhood sexual abuse under CCP § 340.1. The Complaint alleges four causes of action for:

On March 25, 2024, Defendant Los Angeles Unified School District (“LAUSD”) filed a Motion for Judgment on the Pleadings (MJOP). Plaintiff opposes the Motion. The matter is now before the court.

motion for judgment on the pleadings[1]

“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.)¿¿¿

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) Order Re: Demurrer, E.L. v. Pasadena Unified School District, Case No. 22STCV23288, Superior Court of California, County of Los Angeles.

2) Order After Hearing, Jane Doe v. Sergio Marquez, et al., Case No. 22CV003767, in the Superior Court of California, County of Monterey.

3) Order, Jane Doe, et al. v. Alcanes Union High School District, et al., Case No. C22-02613, Superior Court of California, County of Contra Costa.

The court denies Defendant LAUSD’s request for judicial notice. Judicial notice is an evidentiary procedure that allows the court to establish certain indisputable facts. The unpublished rulings offered by LAUSD have no precedential value and are not being submitted as evidence but are being cited as precedent. Such citation is beyond the scope of judicial notice and is legally improper. (Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, 884-885.)

1) Exhibit 1: Tentative Order dated May 15, 2023, in Jane Doe (Beth Hill) v. Amador USD, Case No. 22-CV-12948, tentative ruling overruling Demurrer.

2) Exhibit 2: Minute Order dated July 13, 2021, in Jane Doe v. Los Gatos-Saratoga Union High School District, Case No. 21CV376543.

3) Exhibit 3: Order dated August 18, 2021, in Jane Doe v. Oakland Union School District, Case No. RG21087567, order overruling Demurrer.

4) Exhibit 4: Order dated April 7, 2022, in John Doe v. Roseville City School District, Case No. S-CV-0047426, order overruling Demurrer.

5) Exhibit 5: Order dated June 1, 2023, in John Doe v. Tamalpais Union High School District, et al., Case No. CIV 2202251, order overruling Demurrer.

6) Exhibit 6: Order dated July 27, 2023 on Defendant’s Demurrer to Plaintiff’s First Amended Complaint, in John Roe 1 -5 v. Mountain View Whisman School District, et al., Case No. 22CV02834.

7) Exhibit 7: Order dated May 19, 2021, in John Roe 1, et al. v. Union High School District, et al., Case No. 20CV368341, order overruling Demurrer.

8) Exhibit 8: Minute Order dated July 20, 2021, in Reza Afshar v. Charles Sayers, et al., Case No. 20CV367836, order overruling Demurrer.

9) Exhibit 9: Minute Order dated December 8, 2021, in Robin Richie v. Oroville Union High School District, et al., Case No. 21CV01364, order overruling Demurrer.

10) Exhibit 10: Tentative Order dated August 3, 2023, in W. v. Doe, Case No. 22CV012244, tentative order overruling Demurrer.

11) Exhibit 11: Order dated September 12, 2023, John Doe v. Tamalpais Union High School District, et al., in Case No. 2300236, order overruling Demurrer.

Plaintiff’s request for judicial notice as to Exhibits 1 through 11 is denied for the same reasons as stated above. Plaintiff’s request for judicial notice of Exhibit 12 is granted.

Plaintiff brings this action against LAUSD due to sexual abuse that occurred around 1975 to 1976. (Compl., ¶¶ 3, 32.) Defendant LAUSD has now filed a Motion for Judgment on the Pleadings (“MJOP”) on two grounds: 1) Plaintiff failed to comply with the Government Tort Claims Act; and 2) Assembly Bill 218 (“AB 218”), which further amended CCP § 340.1, 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.

Under the Government Tort Claims Act, no person may sue a public entity or public employee for money or damages unless a timely written claim has been presented to, and acted on or deemed rejected by the public entity. (Gov. Code, §§ 905, 912.4, 945.4.)

The Complaint alleges that it is exempt from the Government Tort Claims Act under Gov. Code § 905(m). (Compl., ¶ 62.) Section 905(m) exempts “[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 abuse.” (Gov. Code, § 904(m); see also A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1254–1255 (A.M.).)

(p) This section applies to any claim in which the childhood sexual assault occurred on and after January 1, 2024. Notwithstanding any other law, a claim for damages based on conduct described in paragraphs (1) through (3), inclusive, of subdivision (a), in which the childhood sexual assault occurred on or before December 31, 2023 may only be commenced pursuant to the applicable statute of limitations set forth in existing law as it read on December 31, 2023.

(q) Notwithstanding any other law, a claim for damages [for childhood sexual assault] 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.

(r) The changes made to the time period . . . by the act that amended this subdivision in 2019 apply to and revive 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.

Because Plaintiff filed this action on July 21, 2022 -- within three years of January 1, 2020 -- Plaintiff’s Complaint is exempt from the claims presentation requirement under Gov. Code § 905(m). Furthermore, Section 905(p) explicitly states:

The 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.

AB 218, as codified in CCP § 340.1, abolished the statute of limitation for childhood sexual assault claims. Section 905(m) and (p) expressly exclude such claims from the claim presentation requirement and retroactively revives such claims. Therefore, Defendant LAUSD’s argument that Plaintiff is required to comply with the claims presentation requirement of the Government Tort Claims Act is without merit.

Defendant LAUSD alleges that AB 2018’s retroactive provision violates 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 is unconstitutional because it applies retroactively rather than prospectively and revives lapsed claims by providing relief from the Government Tort Claims Act presentation requirement under section 905(m). Therefore, LAUSD argues that AB 218 violates the prohibition against gift of public funds to a plaintiff. (Motion, at p. 9, fn. 5.)

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].) “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.” (Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471, 495 [internal citations and quotations omitted].) “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.” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 746.)

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^{^[2]} and expressly exempting claims based on childhood sexual abuse from the claim presentation requirement and 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).)

Plaintiff’s opposition cites the legislative history of AB 218 which makes clear that its public purpose was to ensure that victims of childhood sexual abuse can recover for their injuries and deter the coverup of sexual assault in institutions. (Plaintiff’s RJN, Ex. 12.) In A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, the Court of Appeal noted:

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.

(Id. at p. 1264 [internal quotations omitted].) Accordingly, the court finds that by permitting victims of sexual childhood sexual abuse to bring claims, AB 218 serves the public by deterring sexual assault and protecting minors.

More importantly, Defendant LAUSD fails to show that that revival of a lapsed claims constitutes a “gift” under Cal. Const., art. XVI, § 6 as the plaintiff is still required to prove wrongdoing and damages to recover. Nothing in section CCP § 340.1(q), or Gov. Code § 905(m) and (p)—the 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.

The cases that LAUSD relies on—Bourn v. Hart (1892) 93 Cal. 321, Conlin v. Board of Supervisors (1893) 99 Cal. 17, Powell v. Phelan (1903) 138 Cal. 271, and Heron v. Riley (1930) 209 Cal. 507—were all decided before the Government Tort Claims Act was enacted in 1963^{^[3]}.

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].

(Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 803.) In Williams v. Horvath (1976) 16 Cal.3d 834, the California Supreme Court explained that “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.)

Furthermore, the cases relied on by LAUSD are factually distinguishable because the decisions involved circumstance 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, 1930) 209 Cal. 507.) AB 218 does not appropriate funds to specific individuals or class of persons but instead revives previously time-barred claims that accrued when the sexual assault occurred while still requiring that the claims be proven in a court of competent jurisdiction in the manner provided by law, consistent with due process requirements

“‘A defendant challenging the constitutionality of a statute carries a heavy burden: ‘The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.’ [Citations.]” (In re D.L. (2023) 93 Cal.App.5th 144, 156.) Defendant LAUSD has failed to show that AB 218 is unconstitutional and violates the Gift Clause of the California Constitution. Moreover, the law is clear that the Legislature has the power to revive time-barred claims. (See Liebig v. Superior Court (1989) 209 Cal.App.3d 828, 830-831; Coats v. New Haven Unified School Dist. (2020) 46 Cal.App.5th 415, 427-428.)

Defendant LAUSD’s Motion for Judgment on the Pleadings is denied. Defendant to give notice.

[1] Pursuant to CCP § 439, the meet and confer requirement has been met. (Lee Decl. ¶ 2, Ex. A.)

[2] 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).)

[3] “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.)”.].)