Judge Lee W. Tsao, Case Number: 22NWCV00532, Date: 2023-12-14 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV00532, Date: 2023-12-14 Tentative Ruling

Case Number: 22NWCV00532 Hearing Date: January 16, 2024 Dept: C

T. M. vs Whittier City School District

Case No.: 22NWCV00532

Hearing Date: January 16, 2024 @ 10:30 AM

Tentative Ruling

I. Defendant Whittier City School District Motion for Judgment on the Pleadings is DENIED.

II. Defendant’s Motion for an Order Compelling an Independent Medical Examination of Plaintiff T.M. is GRANTED as set forth below.

Moving party to give notice.

Background

This action stems from conduct that allegedly occurred more than 18 years ago. Plaintiff alleges that she was sexually abused by her 8th grade math teacher, Jason Kreuger, in 2005, while she was a student at Walter Dexter Middle School, in the Whittier City School District (“Defendant District”) (Complaint, at ¶¶ 3, 5, 31). Plaintiff’s Complaint alleges two causes of action against the District: negligence and negligent hiring, retention and supervision.

Defendant District now seeks a motion for judgment on the pleadings and presents a motion for an independent medical examination.

i. Motion for Judgment on the Pleadings

Legal Standard

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against the defendant.” (Code Civ. Proc. § 438, subds. (b)(1) and (c)(1)(B)(ii).) “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. Presentation of extrinsic evidence is … not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999, citations omitted.)

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer: that under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties; matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Ibid., at fn. 5.) The court “must accept as true all material facts properly pleaded, but does not consider¿conclusions¿of¿law¿or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220, citing¿Shea Homes Limited Partnership v. County of Alameda¿(2003) 110 Cal.App.4th 1246, 1254.)

Upon granting a motion for judgment on the pleadings, the court should also grant leave to amend the deficient complaint as long as there is a reasonable possibility its deficiencies might be cured by amendment. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) The burden of demonstrating the possibility that the deficiencies might be cured, however, rests squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Childhood Sexual Abuse Claims

Under CCP section 340.1, as amended by Assembly Bill No. 218 (“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).)

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.)

Defendant District 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.)

Defendant District’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 Defendant District, 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 Defendant District’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. The Court therefore DENIES the Motion.

ii. Motion for Order Compelling an Independent Medical Exam

Legal Standard

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).)

Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., § 2032.310, subd. (a).) A mental examination shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders. (Code Civ. Proc., § 2032.020, subd. (c)(1).)

A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination, and shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2032.310, subd. (b).) The Court shall grant the motion only for good cause shown. (Code Civ. Proc., § 2032.310, subd. (a).)

Plaintiff alleges that she was sexually harassed, molested and abused by a former Defendant District employee during the 2005-2006 school year. Plaintiff has alleged significant emotional distress damages, including, but not limited to: severe and permanent psychological, emotional, and physical injuries, shame, humiliation, and the inability to lead a normal life. (Complaint at ¶ 73.) Further, Plaintiff alleges that she has experienced mistrust of people, anger, poor self-image and poor self-esteem, anxiety, panic attacks, depression, PTSD, flashbacks, which has also affected her ability to form and develop healthy relationships, and hypersexuality. (Response to Form Interrogatory No. 6.2. Declaration of Stephenson-Cheang, at ¶ 3.)

Defendant District argues that by claiming continuing emotional distress, Plaintiff has put her mental condition at issue. Plaintiff does not dispute this.

Defendant District proposes to examine Plaintiff based on Plaintiff’s and Dr. Mohan Nair’s availability. Defendant District proposes the examination will take place on one (1) day to be concluded in four hours, in order to allow a psychiatric interview and cognitive and psychological testing of Plaintiff, and submits the location to be at Dr. Nair’s office: 133 Promenade Walk North, Ste 108, Long Beach, CA 90802. Defendant District specifies that the tests to be administered are an executive functioning measure such as the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS; approximately 30 minutes), a written comprehension (reading) measure such as the Wide Range Achievement Test, Fifth Edition (WRAT-5; approximately 15 minutes), and a personality measure such as the Minnesota Multiphasic Personality Inventory-3 (MMPI-3; approximately 50 minutes) and the Millon Clinical Multiaxial Inventory-IV (MCI-IV; approximately 30 minutes). Dr. Nair may also administer a trauma-specific measure such as effort tests, including but not limited to the TOMM (Test of Memory Malingering; approximately 20 minutes) and Structured Inventory of Malingered Symptoms (SIMS; approximately 15 minutes). (Niman Decl., Exhibit A ¶ 3.)

Plaintiff argues that Defendant District is not allowing Plaintiff to audiotape the mental examination and has failed to establish good cause for the proposed tests and a seven-hour examination.

Plaintiff is entitled to an audio recording of any and all portions of the examination. (CCP § 2032.530(a).) The court ORDERS Dr. Nair to audio record the entire examination unless another method of audio recording is agreed upon by the parties.

The court finds that the tests proposed by Defendant District are appropriate in light of Plaintiff’s claims of emotional distress. The court further finds that four hours, not including rest periods, is enough time for the examination.

Accordingly, the Motion for an Order Compelling the Independent Medical Examination of Plaintiff is GRANTED as set forth above, to be taken within sixty days of this order or within such time as agreed upon by the parties.