Judge Kerry Bensinger, Case Number: 22STCV36634, Date: 2024-08-28 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOTION FOR A STAY PENDING APPEAL OR IN THE ALTERNATIVE A TRIAL DATE CONTINUANCE

On November 21, 2022, Plaintiff, Jane Doe C.L., initiated this action against Defendant, Doe 1, a public entity, and Does 2 through 50, for childhood sexual assault and abuse that occurred in 1974 or 1975. On March 2, 2023, Plaintiff filed an amendment to the Complaint naming Los Angeles Unified School District (LAUSD) as Doe 1. She asserts causes of actions for (1) Negligent Hiring, Supervision, and Retention Based on Government Code Sections 815.2 and 820, (2) Failure to Report Suspected Child Abuse (Government Code Sections 815.2, 815.6, and 820), (3) Negligent Supervision of a Minor Government Code Sections 815.2 and 820, and (4) Negligence (against Does 41 through 50).

In relevant part, the Complaint alleges that Plaintiff was sexually assaulted and molested by her schoolteacher Thomas DeWitt (“DeWitt”). Dewitt was an employee of the LAUSD at the 68th Street Elementary School. At the time of the alleged assaults, Plaintiff was eight or nine years old. The Complaint further alleges that administrators, teachers, and staff at the school received complaints and warnings about DeWitt’s improper behavior, including that DeWitt used his position of trust and authority to sexually assault female students, that DeWitt inappropriately touched female students, that DeWitt was overly close with female students, and other complaints of a similar nature. However, LAUSD failed to investigate DeWitt’s conduct or to adequately supervise him.

Before the court are two motions filed by LAUSD: (1) Motion for Judgment on the Pleadings as to the First, Second, and Third Causes of Action, and (2) Motion for a Stay Pending Appeal or in the Alternative a Trial Continuance Date (“Motion to Stay”).

The motions are fully briefed. The court begins by addressing the Motion to Stay.

The parties each request judicial notice of court documents in connection to the Motion for Judgment on the Pleadings and the Motion to Stay.

LAUSD seeks a stay on the ground that the First Appellate District and Second Appellate District Courts of Appeal are set to rule on an argument raised by LAUSD: whether AB 218 violates the anti-gift provision set forth in Article XVI, Section 6, of the California Constitution.

While the Motion to Stay was pending, the First Appellate District issued its ruling in West Contra Costa Unified School District v. Superior Court of Contra Costa County (Cal. Ct. App., July 31, 2024, No. A169314) 2024 WL 359393 (West Contra Costa). There, the West Contra Costa court rejected the argument LAUSD presses in its Motion for Judgment on Pleadings (discussed infra): AB 218’s waiver of the claim presentation requirement “did not constitute an expenditure of public funds that may be considered a “gift” because AB 218 did not create new substantive liability for the underlying alleged wrongful conduct.” (West Contra Costa, at *4 (citations and quotations omitted).) Having squarely addressed the issue that LAUSD raises in this case, there is no basis to stay the proceedings.

To the extent that LAUSD seeks a stay of proceedings to await the Second Appellate District’s ruling on “AB 218 claim waiver” issue in Roe #2, a Public Elementary School District v. The Superior Court of Santa Barbara County, Case No. B334707, the motion lacks merit. “Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.” (Auto Equity Sales, Inc. v. Superior Ct. of Santa Clara Cnty. (1962) 57 Cal.2d 450, 455.)

Here, the First Appellate District has issued its decision in West Contra Costa. That decision directly addresses (and forecloses) LAUSD’s anti-gift challenge. This court is bound by West Contra Costa.

“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.¿ [Citations.]”¿ (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057 1064.)¿ The court must assume the truth of all properly pleaded material facts and allegations, but not contentions or conclusions of fact or law.¿ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Wise v. Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738.)¿ “A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action.¿ (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).)”¿ (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.)¿ “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.¿[Citation.]”¿ (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)¿ “The common law ground for a motion for judgment on the pleadings is identical to the statutory ground[.]” (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1055.) Allegations are to be liberally construed.¿ (Code Civ. Proc., § 452.)¿¿¿

If the motion for judgment on the pleadings is granted, it may be granted with or without leave to amend. (Code Civ. Proc., § 438, subd. (h)(1).) “Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852, emphasis added.)

Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. (Code Civ. Proc. § 439, subd. (a).) Defense counsel has complied with the meet and confer requirement. (See Declaration of Ryan D. Miller, ¶ 2.)

LASUD advances two arguments in support of its Motion for Judgment on the Pleadings. First, LAUSD argues the Complaint does not state a valid claim against LAUSD because the statutory basis for exempting Plaintiff’s claims from the Government Claims Act violates the anti-gift provision of the California Constitution. Second, LAUSD argues the Complaint fails to plead Plaintiff’s claims with sufficient particularity. The court addresses these arguments in turn.

Under Code of Civil Procedure section 340.1, as amended by AB 218, 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, for any of the following actions: (1) an action against any person for committing an act of childhood sexual assault; or (2) an action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff. (Code Civ. Proc., § 340.1, subd. (a)(1)-(2).)

AB 218 also amended the provision that lists exceptions to the Government Claims Act, Government Code section 905, by removing language in subdivision (m) that limited the exception to claims arising out of conduct that occurred on or after January 2009 and adding subdivision (p), which made this change retroactive. (See Coats v. New Haven Unified School District (2020) 46 Cal.App.5th 415, 424 (Coats); Gov. Code § 905, subds. (m), (p).)

Article XVI, section 6 of the California Constitution (“the Anti-Gift Provision”) provides, in relevant part: “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 the portion of AB 218 that retroactively exempts childhood sexual abuse claims from the Government Claims Act is unconstitutional with respect to public entities because it constitutes an impermissible gift of public funds. Compliance with the Government Claims Act is a substantive prerequisite to stating a claim for money damages against a public entity. (See State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240-41.) LAUSD’s argument turns on the distinction between the nature of the statutes of limitation for childhood sexual abuse cases and the substantive requirements of the Government Claims Act for stating a claim against a government entity.

As discussed elsewhere in this ruling, LAUSD’s anti-gift challenge has been squarely addressed in West Costa Contra. There, the First District Court of Appeal held that “waiver of the claim presentation requirement did not constitute an expenditure of public funds that may be considered a ‘gift’ because AB 218 did not create new ‘substantive liability’ [citation] for the underlying alleged wrongful conduct. Instead, AB 218 simply waived a condition the state had imposed on its consent to suit. [Citation.]” (West Contra Costa, supra, at *4.) The Court further observed in the alternative that, even if AB 218 authorizes expenditures within the scope of the gift clause, “the expenditures are not ‘gifts’ because they serve a public purpose.” (Id. at *8.) LAUSD’s anti-gift challenge fails.

LAUSD argues the Complaint lacks the “specificity” required to bring a tort cause of action against a governmental entity. The court disagrees. Doe v. City of Los Angeles (2007) 42 Cal.4th 531 (Doe), a case that LAUSD cites, is instructive.

examine whether the pleadings in these cases are sufficient to invoke the extended statute of limitations set forth in subdivision (b)(2). We conclude that subdivision (b)(2) is a remedial statute that the Legislature intended to be construed broadly to effectuate the intent that illuminates section 340.1 as a whole; to expand the ability of victims of childhood sexual abuse to hold to account individuals and entities responsible for their injuries. This principle of broad construction is not consistent with language in the opinion of the Court of Appeal below that imposed heightened pleading requirements on plaintiffs seeking to bring their actions within this expansion of the statute of limitations in childhood sexual abuse cases. However, even without the stringent pleading requirements imposed by the Court of Appeal, we agree with its conclusion that the statute requires more specific allegations than were made by plaintiffs in this case. Accordingly, we affirm the judgment of the Court of Appeal.

(Doe, supra, 42 Cal.4th at pp. 536-37.) The California Supreme Court’s task was to examine the statute in effect at the time. The Court described the statute as follows: “Code of Civil Procedure section 340.1, which extends the statute of limitations within which a victim of childhood sexual abuse may sue a person or entity who did not perpetrate the abuse but was a legal cause of it, requires that such actions be brought before the victim's 26th birthday, unless the defendant ‘knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person....’ (Code Civ. Proc., § 340.1, subd. (b)(2).)” (Ibid.)

Rejecting the Appellate Court’s stricter pleading requirement, the Doe court stated that a plaintiff is not required to “plead evidentiary, as opposed to ultimate facts,” and may include allegations based upon information and belief. (Doe, supra, at p. 550.) Nonetheless, the plaintiffs’ allegations in Doe were insufficient “because no degree of broad construction of their pleadings can supply what is missing from them—allegations that defendants knew, had reason to know, or were otherwise on notice of past incidents of unlawful sexual conduct by Kalish with minors that triggered the duty on defendant's part to take preventive measure to avoid acts of unlawful sexual conduct by Kalish in the future.” (Id. at p. 551.) The Doe Court found the complaint inadequate because they failed to “allege that defendants had knowledge of Kalish's past unlawful sexual conduct with minors, which is the prerequisite for imposing upon these defendants liability for his subsequent sexual abuse of plaintiffs. That defendants had knowledge or notice of misconduct by Kalish that created a risk of sexual exploitation is not enough under the express terms of the statute. (Id. at p. 552.) (Emphasis added.)

Effective January 1, 2020, AB 218 amended the statutory language. As relevant here, Section 340.1, subdivision (c) states: “An action described in paragraph (2) or (3) of subdivision (a) shall not be commenced on or after the plaintiff's 40th birthday unless the person or entity knew or had reason to know, or was otherwise on notice, of any misconduct that creates a risk of childhood sexual assault by an employee, volunteer, representative, or agent, or the person or entity failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard. Nothing in this subdivision shall be construed to constitute a substantive change in negligence law.” (Emphasis added.) Under the plain terms of the operative section, the scope of the statute captures cases where the entity knew or was on notice of any misconduct that created a risk of childhood sexual assault.

Here, the Complaint alleges that “Administrators, teachers, and staff at 68th Street Elementary School (which is part of DOE 1) received complaints and warnings about Thomas Dewitt’s improper behavior from parents and students, including that DeWitt used his position of trust and authority to sexually assault female students, that Thomas Dewitt inappropriately touched female students, that Thomas Dewitt was overly close with female students, and other complaints of a similar nature.” (Complaint, ¶ 16.)

These allegations include evidentiary as well as ultimate facts which are sufficient to allege that LAUSD knew or was on notice of DeWitt’s misconduct that created a risk of childhood sexual assault to Plaintiff. For pleading purposes “constructive knowledge (as measured by the reason to know standard),” (Doe at p. 549), may be shown if the Defendant had notice “of any misconduct that creates a risk of childhood sexual assault.” The allegations that administrators, teachers, and staff at Plaintiff’s elementary school received complaints and warnings about DeWitt’s conduct is sufficient to establish LAUSD’s constructive, if not actual, knowledge of DeWitt’s misconduct. Plaintiff’s allegations are pleaded sufficiently to survive Defendant’s motion for judgment on the pleadings.

Kerry Bensinger

Judge of the Superior Court

[1] LAUSD alternatively requested a trial continuance in the event the court was inclined to deny the Motion to Stay. That request was predicated on the assumption that First Appellate District would not have issued its decision in West Contra Costa prior to the hearing for this Motion. The request is now moot.