Judge Kerry Bensinger, Case Number: 23STCV11094, Date: 2024-02-26 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.

This is a revival action arising from childhood sexual abuse. On May 17, 2023, Plaintiff, L.R., initiated this action against Doe 1. On July 31, 2023, Plaintiff filed the operative First Amended Complaint (FAC) naming Defendant, Los Angeles Unified School District (“LAUSD”) as Doe 1. The FAC asserts causes of action for Negligence (First Cause of Action) and Negligent Hiring, Retention, and Supervision (Second Cause of Action) against LAUSD.

As alleged in the FAC, Plaintiff was sexually abused by David McManus (“McManus”), an LAUSD employee, from 1978 to 1980 while Plaintiff was a student at El Camino Real Charter High School. Plaintiff reported the sexual abuse to Joanne Mahler, a nurse employed at the school. However, no action was taken, no investigation was completed, and McManus continued to sexually abuse and assault Plaintiff.

On October 27, 2023, LAUSD filed this demurrer, and concurrently filed a motion to strike allegations supporting treble and punitive damages from the FAC.

Plaintiff filed an opposition to the demurrer only. LAUSD replied. The motion to strike is unopposed.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿ (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)¿ “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.¿ We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.¿ [Citation.]”¿ (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed.¿ (Code Civ. Proc., § 452.)¿ In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.¿ (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)¿¿

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).)¿“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”¿(Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment.¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)¿

Plaintiff requests judicial notice of fourteen (14) rulings and orders in other similar cases and the August 30, 2019 assembly floor analysis of Assembly Bill (AB) 218. As the court does not rely on any of the documents for which judicial notice is requested, the court declines to rule on the requests.

Defense counsel has complied with the meet and confer requirement. (See Declaration of Jieun Choi, ¶ 3.)

LASUD advances the following arguments: (1) the FAC does not state a valid claim against LAUSD because the statutory basis for exempting Plaintiff’s claims from the Government Claims Act violates Article XVI, section 6 of the California Constitution, (2) the allegations are vague and uncertain; and (3) Plaintiff does not sufficiently allege a statutory basis to impose liability on LAUSD for Negligence. The court addresses each argument 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.

Ultimately, LAUSD’s Government Claims Act argument fails to overcome AB 218’s public purpose. Moreover, Plaintiff points out successfully that AB 218 serves a public purpose.

“It is well settled that in determining whether any appropriation of public funds is to be deemed a gift, ‘The primary and fundamental subject of inquiry is as to whether the money is to be used for a public or private purpose. If it is for a public purpose it is not generally speaking, to be regarded as a gift.” (San Diego County v. Hammond (1936) 6 Cal.2d 709, 721 (Hammond) (citation omitted).) “The determination of what constitutes a public purpose is primarily a matter for the Legislature, and its discretion will not be disturbed by the courts so long as that determination has a reasonable basis. Accordingly, a wide variety of welfare and other social programs have been upheld against constitutional challenge.” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 746, citation omitted.) “[T]he failure to expressly state a public purpose is not decisive. The 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, 1605 (Scott).)

In Coats, supra, 46 Cal.App.5th at p. 428, the appellate court addressed the very issue raised here – the revival of a cause of action barred by a claim presentation requirement. The school district in Coats, however, raised an ex post facto challenge to AB 218. Rejecting that argument, the Appellate Court held that the Legislature has the power to expressly revive time-barred civil causes of action.

Here, LAUSD pivots and raises an Anti-Gift challenge instead of an ex post facto challenge. In Martin v. Santa Clara Unified School District (2002) 102 Cal.App.4th 241, 253, the school district challenged the payment of backpay under section 44940.5 for teachers who successfully completed diversion. The school district argued such payments were an unconstitutional gift of public funds. According to the school district the legislation “manifestly lacks a public purpose.” (Ibid.) The Martin Court disagreed, holding that it “could not find as a matter of law that section 44940.5 as applied to diversion dismissals is devoid of a legislative purpose.” (Id. at p. 254.)

So too here. As discussed in Coats, the Legislature’s purpose in passing AB 218 was to assure that victims of childhood sexual abuse receive justice. (See also Liebig v. Superior Court (1989) 209 Cal.App.3d 828, 834 [“In the case the important state interest espoused by section 340.1 is the increased availability of tort relief to plaintiffs who had been victims of childhood sexual abuse while a minor …. the public policy is manifest from the text of the law.”].) Deterring future sexual abuse by holding those responsible and accountable similarly provides a reasonable basis and public purpose for the legislation. The statute here is multifaceted and benefits the public, specifically an unknown and unspecified class or group of persons harmed by sexual assaults. For this reason, LAUSD’s argument that Coats (as well as Leibig and Scott) is not binding on this court because it does not address the facts in this case misses the point. The Coats Court noted the Legislature’s purpose in passing AB 218 and the Leibig Court recognized the interest espoused by Section 340.1. Further, the Scott Court authorizes a trial court to infer a public purpose. This court infers a public purpose from AB 218.

Undeterred, LAUSD argues no public purpose is achieved in the settlement of a wholly invalid claim. In support of this proposition, LAUSD cites Orange County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195. In that case, a taxpayers’ association, Orange County Foundation, instituted an action to set aside a settlement agreement between The Irvine Company (“Irvine Co.”) and the State of California under which Irvine Co. relinquished its claims to certain islands in return for a payment of money. The taxpayers’ associations alleged Irvine Co. had no genuine interest in the islands because the islands were always tidelands and submerged lands protected by a public trust. Irvine Co. successfully moved for summary judgment. The Court of Appeal reversed and held that when state funds are expended pursuant to a settlement agreement in exchange for the relinquishment of an invalid claim, no public purpose is achieved. This was so because a “[c]ompromise of a wholly invalid claim is inadequate consideration to support a contract.” (Orange County Foundation, 139 Cal.App.3d at pp. 199, 201.)

Orange County Foundation is distinguishable. Unlike Orange County Foundation, this case is at the pleading stage. As such, the court is concerned only with the well-pleaded allegations on the face of the complaint and judicially noticeable facts. The court does not consider the merits of the evidence. LAUSD would have this court assume Plaintiff’s claim to be invalid where no evidence has been presented.[1] Nor does this case concern the validity of a contract.

LAUSD next argues the FAC is vague or uncertain because it is comprised of conclusory statement rather than factual allegations. For instance, LAUSD argues there are no factual allegations showing how the school district was on notice of McManus’s propensity for sexual misconduct or that McManus had sexually abused Plaintiff. For this proposition, LAUSD relies primarily upon Doe v. City of Los Angeles (2007) 42 Cal.4th 531 (Doe). Doe does not help LAUSD’s cause.

In Doe, the California Supreme Court granted review to examine whether the pleadings in childhood sexual abuse cases are sufficient to invoke the extended statute of limitations set forth in subdivision (b)(2). The High Court stated:

“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. LAUSD does not deal with or address the current version of the statute.

Here, the FAC alleges LAUSD had knowledge or notice of McManus’s misconduct that created a risk of sexual exploitation, and knew, or in the exercise of reasonable care should have known, that McManus had a propensity to engage in the sexual abuse or assault of children. (FAC, ¶¶ 28, 38.) The FAC also alleges Plaintiff reported McManus’s abuse to Mahler, a school nurse, yet no investigation was conducted. (FAC, ¶ 34.) Further, despite knowledge of McManus’s threat to the health, safety, and welfare of minors, LAUSD provided McManus with unsupervised and unfettered access to minors, including Plaintiff. (FAC, ¶ 43.) These allegations are sufficiently specific under the current version of Section 340.1. The FAC is not vague or uncertain.

LAUSD goes on to argue that the allegations must allege knowledge of a supervisory employee in order to impart liability to the school district. LAUSD cites Doe for this proposition. However, a reading of Doe does not support LAUSD. No such language appears in Doe. Rather, a plaintiff is not required “to specify at the pleading stage which of a defendant’s employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872, emphasis in original.) LAUSD’s challenge to the First and Third Causes of Action fail on these grounds.

“[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ . . . and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.)

LAUSD argues that the First Cause of Action for Negligence does not allege a statutory basis for liability against LAUSD. Not so. The FAC alleges that the statutory basis for Plaintiff’s claim is predicated on Government Code sections 815.2, 815.4, and/or 815.6. (FAC, ¶¶ 61, 64, 65.) LAUSD concedes it may be vicariously liable pursuant to Government Code section 815.2. (Mot., p. 15.) Nonetheless, LAUSD argues the FAC is still deficient because it does not identify the employees that owed a duty to Plaintiff, how employees breached their duty, or what those employees knew or should have known. This is a continuation of the argument the court considered and rejected in LAUSD’s vagueness/uncertainty challenge to the FAC. As Doe observed in rejecting application of a heightened pleading standard to claims of childhood sexual abuse against public entities, “Section 340.1 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.” (Doe, supra, 42 Cal.4th at pp. 536-37.)

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.¿ (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿¿

“The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.)¿

LAUSD seeks to strike allegations supporting Plaintiff’s request for treble and punitive damages. Specifically, LAUSD seeks an order striking:

2. FAC, Paragraph 54, in its entirety, which states: “Upon information and belief, PERPETRATOR sexually abused Plaintiff and other students at SCHOOL.”

3. FAC, Paragraph 55, in its entirety, which states: “Upon information and belief, SCHOOL knew or had reason to know, or otherwise was on notice of PERPETRATOR’s sexual abuse of other students at SCHOOL prior to abusing Plaintiff. SCHOOL, through its employees and agents, also knew or had reason to know, or otherwise was on notice of PERPETRATOR’s sexual abuse of Plaintiff, but failed to take remedial action, and instead covered it up, thereby permitting such abuse to continue.”

4. FAC, Paragraph 56, in its entirety, which states: “The sexual abuse of Plaintiff was the result of a cover-up by SCHOOL, as defined in CCP § 340.1(b).”

5. FAC, Paragraph 58, line 21: The word “SCHOOL.” 6. FAC, Paragraph 59, line 26: The word “SCHOOL.”

LAUSD is entitled to an order striking the foregoing allegations. Code of Civil Procedure section 340.1 subdivision (b)(1) provides for treble damages when a plaintiff suing in tort for childhood sexual assault proves the assault “was as the result of a cover up” by defendant. (Code Civ. Proc., § 340.1, subd. (b)(1).) However, Government Code section 818 exempts a public entity from an award of damages “imposed primarily for the sake of example and by way of punishing the defendant.” (Gov. Code, § 818.) Government Code section 818 “was intended to limit the state's waiver of sovereign immunity and, therefore, to limit its exposure to liability for actual compensatory damages in tort cases.” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 145.) Treble damages are punitive damages for the purposes of Section 818. (Los Angeles Unified School Dist. v. Superior Court (2023) 14 Cal.5th 758, 777-78.) Plaintiff, having not filed an opposition to the motion to strike, does not offer an argument or authority to the contrary.

LAUSD is to file and serve its Answer to the First Amended Complaint within 20 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] Suffice it to say, the FAC does not allege Plaintiff’s claims are invalid.