Judge Kerry Bensinger, Case Number: 22STCV38760, Date: 2023-12-18 Tentative Ruling

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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.

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This is a childhood sexual abuse case. On December 13, 2022, Plaintiff, E.H., initiated this action for sexual assaults that occurred in 1958 and 1967. On May 9, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants, Los Angeles Unified School District (as Doe 1), Compton Unified School District (as Doe 2), and Does 3 through 25, alleging causes of actions for (1) Negligence (Does 1 and 2), (2) Negligence (Does 3 through 25), (3) Negligent Hiring, Retention, and Supervision (Does 1 and 2), and (4) Negligent Hiring, Retention, and Supervision (against Does 3 through 25).

In relevant part, the SAC alleges that Plaintiff was sexually abused by Sterling George Dyer (“Dyer”) and Mr. McCalvary. Dyer and Mr. McCalvary were employees of the Los Angeles Unified School District and Compton Unified School District. At the time of the alleged assaults, Plaintiff was seven years old and sixteen years old. The SAC further alleges that each school district had notice of Dyer’s and Mr. McCalvary’s misconduct.

On November 22, 2023, the Los Angeles Unified School District (“LAUSD”) filed this Motion for Judgment on the Pleadings as to the First and Third Causes of Action. The Motion is based upon the sole argument that the SAC does not state a valid claim against LAUSD because the statutory basis for exempting Plaintiff’s claims from the Government Claims Act violates the California Constitution’s prohibition of the gift of public funds.

“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).)¿

The parties each request judicial notice of documents. As the Court does not rely on those documents in the disposition of this motion, the Court declines to rule on the requests.

Defense counsel has complied with the meet and confer requirement. (See Declaration of Jeffrey P. Wade, Jr., ¶¶ 4-6.)

LASUD argues that the SAC does not state a claim against LAUSD for negligence or negligent hiring, hiring, or retention because Assembly Bill (AB) 218 violates the California Constitution.

Under CCP section 340.1, as amended by AB 218, in an action for recovery of damages suffered as a result of childhood sexual assault, 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. (CCP § 340.1, subd. (a)(1)-(2).)¹

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; 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 and 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.

The Court finds that the effect of AB 218 in amending the Government Claims Act to add an exemption for claims of the type alleged herein does not constitute a “gift of public money or thing of value” within the meaning of the Anti-Gift Provision of the Constitution. As the California Supreme Court held in Heron v. Riley (1930) 209 Cal. 509, 517:

“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 express by its express consent; but it may surrender its sovereignty in that particular. The judgments which are to be paid bear no semblance to gifts. They must first be 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.”

Here, AB 218 did not create an obligation on the part of a governmental agency to pay a claim made by Plaintiff. In order for Plaintiff to recover money from LAUSD, Plaintiff must first obtain a judgment in this case. This would not be a gift of public funds.

Based on the foregoing, the Court is not persuaded by LAUSD’s argument that the retroactive elimination of the claim presentation requirement for childhood sexual abuse claims that arose before 2009 in AB 218 is unconstitutional under the Anti-Gift Provision.

Kerry Bensinger

Judge of the Superior Court