Judge: Loren G. Freestone, Case: 37-2021-00027978-CU-PO-CTL, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 04, 2024

04/05/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00027978-CU-PO-CTL DOE S L VS DEFENDANT DOE 1 [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Grossmont Union High School District's (GUHSD) motion for summary judgment as to the first amended complaint filed by Plaintiff Jane Doe S.L. (Doe) is DENIED.

Preliminary Matters GUHSD's request for judicial notice (ROA #217): Unopposed requests 1–3 and 8–9 are granted.

Requests 4–7 are denied on the ground the Diocese case is not relevant to the disposition of this motion. (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 653.) Doe's request for judicial notice (ROA #253): Unopposed requests 1–8 are granted.

Doe's evidentiary objections (ROA #247): Objection no. 17 is overruled. Objection nos. 1–16 are not material to the disposition of this motion. (Code Civ. Proc., §437c, subd. (q).) GUHSD's evidentiary objections (ROA #266): Objection nos. 1–2 are overruled. Objection nos. 3–4 are not material to the disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).) The court disregard's GUHSD's 'reply separate statement.' (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Constitutionality of AB 218 The alleged sexual assault in this case occurred in 1976. A government claim was never presented, and the complaint was not filed until 2021. At first blush, the complaint appears barred.

However, Assembly Bill No. 218 (2018–2019 Reg. Sess.) amended Code of Civil Procedure section 340.1 to create a three-year window (starting January 1, 2020) in which claims for childhood sexual assault that would have otherwise been barred by the applicable statute of limitations or claim presentation deadline were revived. (See former Code Civ. Proc., § 340.1, subd. (q), (r).) AB 218 similarly amended Government Code section 905 to exempt childhood sexual assault claims from the claims presentation requirement, regardless of when the alleged assault occurred. (See Gov. Code, § 905, subds. (m), (p).) Doe is therefore able to pursue her complaint notwithstanding any statutes of limitation or claims presentation requirements.

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3083670  42 CASE NUMBER: CASE TITLE:  DOE S L VS DEFENDANT DOE 1 [IMAGED]  37-2021-00027978-CU-PO-CTL GUHSD argues that AB218's retroactive removal of the claim presentation requirement constitutes an unconstitutional gift under Article XVI, section 6 of the California Constitution. That section states that the Legislature shall not 'have power to make any gift or authorize the making of any gift, of any public money or thing of value to any individual.' GUHSD argues that AB218 is a 'gift' because it exposes it to liability for past conduct where no enforceable claim previously existed.

The Legislature cannot 'create a liability against the state for any past acts of negligence on the part of its officers, agents or employees' because doing so 'would, in effect, be the making of a gift.' (Heron v. Riley (1930) 209 Cal. 507, 517.) However, simply reviving a claim that was previously barred by the applicable statute of limitations is not a gift. (See Bickerdike v. State (1904) 144 Cal. 681, 692.) GUHSD argues that Bickerdike is not controlling because the statute of limitations and the claims presentation requirement are not identical concepts. For example, it cites to Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, where the California Supreme Court interpreted section 340.1, as amended by Senate Bill No. 1779 (2001–2002 Reg. Sess.). That version of the statute stated that a claim for childhood sexual assault that 'would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired is revived' and may be commenced within one year of that date. (See former Code Civ. Proc., § 340.1, subd. (c).) The Court noted that '[t]imely presentation is not merely a procedural requirement,' but rather 'an element of the plaintiff's cause of action.' (Id. at p. 209.) The court therefore held that SB1779 did not revive claims that were also barred by the claim presentation requirement: '[T]he government claim presentation deadline is not a statute of limitations. Had the Legislature intended to also revive in subdivision (c) the claim presentation deadline under the government claims statute, it could have easily said so. It did not.' (Id.

at pp. 212–213.) As set forth above, the Legislature has now 'said so' by way of AB218. The issue presented is thus whether there is a meaningful difference between reviving a claim barred by the statute of limitations and reviving a claim barred by the claim presentation requirement in the context of GUHSD's constitutional challenge. Although it addressed a different constitutional challenge, Coats v. New Haven Unified School District (2020) 46 Cal.App.5th 415 is instructive.

In Coats, the school district argued that AB218's revival of claims that were previously barred by the claim presentation requirement was an unconstitutional ex post facto law because it 'imposes liability and sanctions of a punitive nature for conduct that was not previously actionable.' (Coats, supra, 46 Cal.App.5th at p. 424.) The court first noted that '[l]egislation reviving the statute of limitations on civil law claims does not violate constitutional principles.' (See id. at pp. 425–428, citing Roman Catholic Bishop of Oakland v. Superior Court (2005) 128 Cal.App4th 1155, 1161 and Liebig v. Superior Court (1989) 209 Cal.App.3d 828, 831–834.) The court then noted that the 'present case, of course, involves revival of a cause of action barred by a claim presentation requirement, not a statute of limitations. But we are aware of no reason the Legislature should be any less able to revive claims in this context, as it expressly did in Assembly Bill 218.' (Coats, supra, 46 Cal.App.5th at p. 428.) There is similarly no reason for distinguishing between the statute of limitations and the claims presentation requirement for purposes of GUHSD's challenge here. Notably, a primary reason Bickerdike concluded that it was not a 'gift' to revive claims barred by the statute of limitations was the fact that the defense was subject to waiver in litigation. (See Bickerdike, supra, 144 Cal. at p. 692.) As with the statute of limitations, the claims presentation requirement is also subject to waiver. (See, e.g, California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, –1298.) GUHSD's argument also largely glosses over the issue of whether AB218 serves a public purpose.

'[E]xpenditures of public funds . . . which involve a benefit to private persons are not gifts within the meaning of the Constitution if those funds are expended for a public purpose. 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.' (Preston v. State Board Calendar No.: Event ID:  TENTATIVE RULINGS

3083670  42 CASE NUMBER: CASE TITLE:  DOE S L VS DEFENDANT DOE 1 [IMAGED]  37-2021-00027978-CU-PO-CTL of Equalization (2001) 25 Cal.4th 197, 225 [retroactive tax exemption not an unconstitutional gift because the Legislature intended it to 'improve the business climate in California']; see also Scott v. State Board of Equalization (1996) 50 Cal.App.4th 1597, 1604 ['courts may infer the public purpose' when it is not explicitly stated].) Here, the Legislature was not only concerned with compensating individual victims, but also preventing future instances of childhood sexual assault-a public purpose. For example, the legislative history states: 'In an effort to allow more victims of childhood sexual assault to be compensated for their injuries and, to help prevent future assaults by raising the costs for this abuse, this bill . . . revives old claims for three years, and eliminates existing limitations for claims against public institutions.' (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 218 (2018–2019 Reg. Sess.) as introduced Jan. 16, 2019, p. 3.) Citing several examples of sexual assault at San Diego schools, the legislative history also states: 'Current law has also failed to provide an effective deterrent on entities with a duty of care to children from sweeping sexual assault under the rug and engaging in cover-ups.' (Id. at p. 7.) The legislative history further notes the public costs associated with reviving claims against school districts were considered: 'AB 218 will create new liability that will be funded in large part by public dollars that would otherwise go directly to funding education.' (Id. at pp. 9–10.) Overall, the Legislature could rationally conclude that if school districts like GUHSD experienced the actual costs associated with not protecting students from sexual abuse, then they would be more motivated to ensure similar incidents do not happen again in the future, and therefore any public dollars associated with reviving previously barred claims would ultimately serve a public purpose.

It is a fundamental precept that '[c]ourts should exercise judicial restraint in passing upon the acts of co-ordinate branches of government; the presumption is in favor of constitutionality, and the invalidity of the legislation must be clear before it can be declared unconstitutional.' (Board of Supervisors v. Dolan (1975) 45 Cal.App.3d 237, 241.) For the reasons set forth above, GUHSD has failed to show that AB218 constitutes an unconstitutional gift.

Notice/Ratification GUHSD argues that even if AB218 is constitutional and Doe's claims are timely, it cannot be liable because it lacked notice that Larry Wilson posed a risk to students of sexual assault. GUHSD also argues that ratification is not a viable theory of liability against a government entity and that there is no evidence it ratified Wilson's assault. As there are triable issues on notice, it is unnecessary to address Doe's alternate ratification theory.

The 'duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally,' including 'injuries to a student resulting from a teacher's sexual assault.' (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 870.) The school is responsible for 'taking reasonable measures to guard pupils against harassment and abuse from foreseeable sources, including any teachers or counselors they know or have reason to know are prone to such abuse.' (Id. at p. 871.) The 'knew or should have known' standard 'imposes liability on a school district on the basis of supervisory personnel's constructive knowledge that an employee is prone to harm students.' (Roe v. Hesperia Unified School District (2022) 85 Cal.App.5th 13, 26.) In other words, 'school administrators have a duty to protect students from sexual abuse by school employees, even if the school does not have actual knowledge of a particular employee's history of committing, or propensity to commit, such abuse.' (Ibid.) School districts must 'take reasonable measures to identify and respond to potential misconduct, even before a district knows a specific employee has previously engaged in sexual misconduct because protecting children from sexual abuse is one of society's highest priorities.' (Ibid.) Even when an employee's conduct is 'ambiguous,' school districts must 'notice, identify, and respond to warning signs that suggest an employee is sexually abusing or will sexually abuse a student.' (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 135.) Calendar No.: Event ID:  TENTATIVE RULINGS

3083670  42 CASE NUMBER: CASE TITLE:  DOE S L VS DEFENDANT DOE 1 [IMAGED]  37-2021-00027978-CU-PO-CTL For example, in Roe, the plaintiffs alleged that a janitor had them 'sit on his lap and accompanied them on a daily basis to empty rooms on campus when his job did not require him to have any one-on-one contact with students.' (Roe, supra, 85 Cal.App.5th at p. 30.) The court held that based on those allegations, the school district 'had reason to know or should have known that [the janitor] posed a foreseeable risk of sexually abusing plaintiffs.' (Ibid.) Similarly, in Lawndale, a district employee responsible for overseeing an afterschool program had various on-campus interactions with the plaintiff that her peers described as 'flirting.' (See Lawndale, supra, 72 Cal.App.5th at pp. 122.) There was no evidence that teachers or other district employees witnessed such conduct. (Id. at p. 143.) The afterschool employee's direct supervisor only checked in on his interactions with students about once a week. (Id. at p. 122.) The court held that there were triable issues as to whether there were sufficient 'red flags' to make the ensuring sexual abuse foreseeable, whether the district took reasonable measures to prevent the sexual abuse of students, and whether its supervision of the afterschool employee and the plaintiff were reasonable. (Id. at pp. 131, 137–138 & fn. 7.) GUHSD submits evidence that Wilson interacted with Doe ten to twelve times on the field during passing periods, each time for approximately five to eight minutes. GUHSD submits evidence that the conversations were not sexual or romantic, that Wilson did not share any details about his life with Doe, and that although they talked about cigarettes, smoking was permitted on school campuses at the time.

GUHSD also submits evidence that Wilson did not isolate Doe on the field or take her to any secluded areas on campus, that no one ever witnessed any sexual contact between them, and that she did not tell anyone she was going to his apartment on the day of the incident. GHUSD submits evidence that Wilson did not have a criminal background and had not previously had any sexual contact with students.

And GHUSD submits evidence that despite a diligent search, it has not been able to locate any documents showing that it had notice that Wilson posed a threat to students.

However, Doe presents evidence that Wilson only ever talked to girls on the field and only ever walked with girls during passing periods. Doe also presents evidence that Wilson had inappropriate conversations with her and other students about smoking marijuana and told them he could get some, which was ultimately how he lured her to his apartment. These are all potential 'warning signs.' (See Roe, supra, 85 Cal.App.5th at p. 30; Lawndale, supra, 72 Cal.App.5th at pp. 122, 131.) Doe also presents evidence that Wilson was flirtatious with female students at a different GUHSD school and was furnishing marijuana to them. Although this conduct occurred approximately 9–10 years after the incident with Doe, it is probative as to what GUHSD knew at the time of the incident and the effectiveness of its steps to protect students during the relevant timeframe. (See Lopez v. Watchtower Bible & Tract Society of N.Y., Inc. (2016) 246 Cal.App.4th 566, 593.) Doe additional presents evidence that GUHSD does not have any documents showing that it trained its employees about sexual abuse during the relevant timeframe, and that GUHSD is not even aware of what type of training it provided to employees during the relevant timeframe. GHUSD's own evidence indicates that it did not implement a child abuse reporting policy until approximately two years after the incident. The lack of training and pertinent policies undercuts GUHSD's argument that it lacked notice of Wilson's actions. (See Lawndale, supra, 72 Cal.App.5th at p. 135 [school districts cannot 'ignore signs of grooming or misconduct simply because someone untrained in the signs of sexual abuse perceives the conduct as ambiguous'].) 'Because summary judgment denies the adversary party a trial, it should be granted with caution.

Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party.' (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 139.) Viewing the totality of the evidence in the light most favorable to Doe, there are triable issues as to whether GUHSD knew, or at a minimum should have known, that Wilson posed a risk of sexual abuse to its students.

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3083670  42 CASE NUMBER: CASE TITLE:  DOE S L VS DEFENDANT DOE 1 [IMAGED]  37-2021-00027978-CU-PO-CTL Causation GUHSD argues that Doe 'does not have any competent proof of causation.' There is no liability if the negligent supervision was not the proximate cause of the injury. (See Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1371.) However, 'where a school fails to provide supervision and an injury results from conduct that would not have occurred had supervision been provided, liability may be imposed.' (Id. at p. 1372.) Similarly, '[w]here supervision is provided but the supervisor allows dangerous conduct to go on, liability may be imposed.' (Ibid.) Proximate cause is typically a question of fact for the jury. (See Beck v. San Francisco Unified School Dist. (1964) 225 Cal.App.2d 503, 508; accord Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 520; J.H., supra, 183 Cal.App.4th at pp. 144–145, 148.) GUHSD cites a variety of cases on this issue. However, 'each of the proximate cause decisions turns on its own facts and has little value as precedent.' (Beck v. San Francisco Unified School Dist. (1964) 225 Cal.App.2d 503, 508.) For example, GUHSD places heavy reliance on Thompson. In that case, two students 'formed a hasty plan to rob plaintiff of marijuana that they believed he was carrying. To do so, they decided to lure plaintiff to a place where they would be out of the immediate view of campus supervisory personnel for at least a couple minutes. Plaintiff was amenable to meeting them there. Once the participants where at that place, the events unfolded extremely quickly. Within one and a half minutes to two minutes of the time he had patrolled past the area, [the] campus monitor [] returned and found plaintiff already injured.' (Thompson, supra, 107 Cal.App.4th at p. 1372.) The court held the plaintiff's claim of ineffective supervision was not supported by competent proof of causation because the injury occurred 'with such rapidity that supervisory personnel could have no opportunity to discover and respond to the situation.' (Ibid.) The facts of this case are unlike Thompson. As set forth above, there is a triable issue as to whether GUHSD had the opportunity to discovery and respond to the situation before the abuse occurred. For example, there is evidence that in the months leading up to the incident, Wilson was openly congregating and walking with only girl students (including Doe) and talking to them about smoking marijuana (which was the alleged bait he subsequently used for convincing Doe to follow him to his apartment). GUHSD did not submit any evidence showing that Doe would have followed Wilson even if it had intervened and stopped these types of interactions. As such, there are triable issues on causation.

Section 44808 Immunity GUHSD argues that it is immune for the off-campus after-hours sexual assault under Education Code section 44808. That section states: 'Notwithstanding any other provision of this case, no school district .

. . shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property,' unless a handful of exceptions apply. (Educ. Code, § 44808.) However, section 44808 immunity does not apply when the cause of the off-campus injury is caused by negligent on-campus supervision. (Hoyem, supra, 22 Cal.3d at pp. 516–520, 523.) This is the rule even when the injury occurs both off-campus and after school hours. (See Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 794–795; accord Perna v. Conejo Valley Unified School Dist.

(1983) 143 Cal.App.3d 292, 295–296; but see LeRoy v. Yarboi (2021) 71 Cal.App.5th 737, 743–744.) Here, Doe's causes of action are based on GUHSD's allegedly negligent supervision while she and Wilson were on campus. GUHSD is not immune simply because that negligence allowed Wilson to lure Doe to his off-campus apartment where the assault occurred.

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3083670  42 CASE NUMBER: CASE TITLE:  DOE S L VS DEFENDANT DOE 1 [IMAGED]  37-2021-00027978-CU-PO-CTL Conclusion GUHSD has not shown that it is entitled to judgment as a matter of law. The motion for summary judgment is therefore denied.

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