Judge Kerry Bensinger, Case Number: 23STCV20613, Date: 2024-01-22 Tentative Ruling

This is a childhood sexual abuse case. On August 23, 2023, Plaintiff, John M.E.L. Doe, initiated this action against Defendant Los Angeles Unified School District (“LAUSD”) for actions for (1) Negligence and (2) Negligent Failure to Warn, Train, or Educate.

In relevant part, the Complaint alleges that Plaintiff was sexually abused by Vance Miller (“Miller”) from 1998 to 2002 while he was a student at Hamilton Music Academy. Miller was an employee of the Los Angeles Unified School District (“LAUSD”). The Complaint further alleges that LAUSD had notice of Miller’s misconduct.

Each party requests judicial notice of rulings and orders in other similar cases. 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.

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.)¿

Defense counsel has complied with the meet and confer requirement. (See Declaration of Ramon L. Quintanilla, ¶¶ 3-4.)

LASUD advances four arguments in support of its motion: (1) Plaintiff did not allege a statutory basis to impose liability on LAUSD; (2) Plaintiff’s negligence-based causes of action are duplicative; (3) the allegations are not pled with sufficient particularity, and (4) 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 Article XVI, section 6 of the California Constitution.

“[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 Complaint does not allege a statutory basis for liability against LAUSD. Plaintiff concedes he did not plead the applicable statutory grounds. He requests leave to amend to plead Government Code section 815.2. (Opposition, p. 1:4-12.) The Complaint is not pled with particularity. Given Plaintiff’s concession, the Court sustains the demurrer on these grounds with leave to amend.

Notwithstanding the Court’s ruling, the Court addresses LAUSD’s remaining arguments.

Defendant argues Plaintiff’s claims for negligence and negligent failure to warn, train, or educate are duplicative. Not so here. The Complaint alleges that Defendant breached their duty of care to Plaintiff by failing to adequately supervise, or negligently retaining Miller who they permitted to have access to Plaintiff. (See Complaint, ¶ 14.) Unlike a “cause of action” for negligent failure to warn, train, or educate, a negligent supervision and retention claim is a distinct cause of action. (See CACI No. 426.) The causes of action are not duplicative.

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. As LAUSD notes, “the retroactive elimination of the claims-presentation requirement may still be constitutional if it serves a ‘public purpose.’” (Motion, at p. 15.) 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.)

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, the school district 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. Contrary to Defendant’s argument, the statute does not aid E.H. alone. The statute here is multifaceted and benefits the public, specifically an unknown and unspecified class or group of persons harmed by sexual assaults. AB 218’s public purpose distinguishes this case from the turn of the 20^th century cases cited by LAUSD. (See Hammond, supra, 6 Cal.2d at p. 723 [distinguishing private person cases from public purpose cases].)

Plaintiff is ordered to serve and file his First Amended Complaint within 30 days of this order.

Defendant is to file and serve its responsive pleading within 30 days of service of Plaintiff’s amended pleading.

Kerry Bensinger

Judge of the Superior Court