Judge: Michael Shultz, Case: 22CMCV00248, Date: 2024-01-11 Tentative Ruling
Case Number: 22CMCV00248 Hearing Date: January 11, 2024 Dept: A
22CMCV00248
John Doe v. Doe #1, a public entity, et al.
[TENTATIVE] ORDER
SUSTAINING IN PART AND OVERRULING IN PART DEMURRER TO PLAINTIFF’S COMPLAINT
I.
BACKGROUND
The
complaint alleges that Plaintiff was a victim of child sexual abuse perpetrated
by Doe #2, an adult male teacher, during the 1976 school year at Centennial
High School, which was maintained and operated by Doe #1. Plaintiff alleges claims for (1) childhood
sexual abuse; (2) intentional infliction of emotional distress; (3) negligent
hiring, supervision, and retention; (4) failure to report suspected child abuse;
(5) negligent supervision of a minor; and (6) negligence.
II.
ARGUMENTS
Defendant Doe 2 (the “District”) demurs to
three of six causes of action on grounds the enacting legislation, AB 218, that
revived Plaintiff’s claims, is unconstitutional because it provides a gift of
public funds. The Court has no power to create liability against the state for
past acts of negligence. AB 218 revived Plaintiff’s claims and removed a
necessary element of a claim against a public entity (requirement to present a
tort claim) which constitutes an impermissible gift of public funds. The claims
otherwise fail for lack of specificity, uncertainty, and failure to allege a
claim.
Plaintiff argues that Defendant relies on
cases that are over 120 years old and have no bearing on this case. The
legislature is entitled to revive stale claims. The demurrer based on
uncertainty is baseless. AB 218 is constitutional. The claims are adequately
alleged.
In reply, Defendant argues that the three
bases for demurrer are (1) whether AB 218 creates new liability for past
negligence; (2) if so, does the statute serve a public purpose; and (3) whether
the claims are alleged with specificity. Defendant also argues that the statute imposing
a duty to report suspected child abuse did not exist in 1976 when the alleged
events occurred.
III. LEGAL
STANDARDS
A demurrer tests the sufficiency of a
complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35
Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must
assume the truth of the properly pleaded factual allegations as well as facts
that can be reasonably inferred from those expressly pleaded facts. The court
may also consider matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.)
The court may not consider contentions,
deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7
Cal.4th 634, 638.) Plaintiff is required to allege facts sufficient to
establish every element of each cause of action. (Rakestraw v. California Physicians
Service (2000) 81
Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to
constitute a cause of action, courts should sustain the demurrer. (Code Civ.
Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1126.)
Sufficient facts are the essential facts
of the case "with reasonable precision and with particularity that is
sufficiently specific to acquaint the defendant with the nature, source, and
extent of his cause of action.” (Gressley v. Williams (1961) 193
Cal.App.2d 636, 643-644.) Whether the
Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180
Cal.App.3d 605, 609–610.)
IV.
DISCUSSION
A.
Defendant has not established that AB 218 is
unconstitutional.
The District demurs to the claims for (3rd)
negligent hiring/supervision/retention, (4th) failure to report
suspected child abuse, and (5th) for negligent supervision of a minor. The
interpretation of a statute and whether it is constitutional are questions of
law. (Valov
v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1120.)
Defendant contends that AB 218 which enacted Civil Procedure § 340.1 reviving
childhood sexual abuse claims and eliminating the requirement that the
plaintiff present a tort claim prior to filing suit against a government entity
are unlawful gifts of public funds in violation of the California Constitution.
The California Constitution provides that
the Legislature has no power “to make any gift or authorize the making of any
gift * * * of any public money or thing of value to any individual * * *;
provided, that nothing in this section shall prevent the Legislature granting
aid pursuant to Section 21 of this article … .” (Cal.
Const., art. XVI, § 6; County
of Alameda v. Carleson (1971) 5 Cal.3d 730, 745 (the “Gift Clause”).)
The term “gift” is not limited to the transfer of personal property without
consideration, but includes all appropriations of public money, for which there
is no authority or enforceable claim. (Conlin
v. Board of Sup'rs of City and County of San Francisco (1893) 99 Cal. 17,
21.)
Defendant’s first argument is that AB 218
impermissibly creates liability against a public entity for past acts of
negligence which were unenforceable at the time the law changed, and which
constitutes an unlawful gift. Defendant cites Bourn
v. Hart (1892) 93 Cal. 321, wherein, the Legislature passed a
special act to compensate a prison guard who had been injured while in the
State’s employment, although the state was not previously liable. (Id.) The court held that if the state desired to
make itself liable, it had to enact a general law to embrace all cases coming
into its provisions.
In contrast, AB 218 does not address one
person’s injury claim, but rather applies generally to victims of childhood
sexual assault that meet the requirements of statute. Bourn is
distinguishable. (Id. at 328, [“A
legislative appropriation made to an individual in payment of a claim for
damages on account of personal injuries sustained by him while in its service,
and for which the state is not responsible, either upon general principles of
law or by reason of some previous statute creating such liability, is a gift
within the meaning of the constitution. The appropriation made to petitioner
was a mere gratuitous assumption of an obligation from which the state was and
is exempt."].)
The causes of action at issue are based on
liability imposed by Government Code § 815.2. The statute creating liability
against a public entity was enacted in 1963. AB 218 did not “create” an
entirely new liability where none had existed before. It enacted a “revival
provision expressly and unequivocally encompassing claims of childhood sexual
abuse previously barred for failure to present a timely government claim.” (Coats
v. New Haven Unified School District (2020) 46 Cal.App.5th 415, 430–431.)
Defendant also cites Conlin
v. Board of Sup'rs of City and County of San Francisco (1893) 99 Cal. 17,
21 for the same proposition. Conlin is equally distinguishable. There, the Legislature passed an act
authorizing the City & County of San Francisco to pay John Conlin,
specifically, $54,015 to a contractor for work done upon public streets
pursuant to a contract that remained unpaid. That case involved appropriation
of public funds to a particular person’s benefit, not for a public
purpose. (Conlin
at 20.)
Defendant next cites Powell
v. Phelan (1903) 138 Cal. 271, which is also inapposite. At the
time of a particular juror’s completion of jury service, jurors did not have
legal entitlement to payment for such service. Thereafter, the Legislature
passed a law providing for the payment of juror fees in all counties. (Powell
at 213). The court held that the gift clause did not allow “any room for moral
considerations.” (Powell
at 274.) At the time of the juror’s service, there was no law
making such services a charge against the City and County of San Francisco, and
the creation of such liability was an unconstitutional gift of public funds. (Id.)
These cases do not apply, because AB 218 did not attempt to “create” liability
where none had previously ever existed.
Defendant argues that AB 218 impermissibly
creates liability for a past act of
negligence citing Chapman
v. State (1894) 104 Cal. 690, 694. Chapman is distinguishable because
the plaintiff alleged negligence against the State based on a statute enacted
after plaintiff’s claims arose. In Chapman, the plaintiff sued the state
for the loss of its coal when a large part of the wharf where the coal was
stored broke away from the wharf due to the State’s alleged negligence. (Id.
at 692.)
At
the time the incident took place, the State was not liable for damage absent a
statute voluntarily assuming such liability. The court acknowledged that to
“create” liability for a past act of negligence violated the constitutional
prohibition against gifts of public money. (Id. at 693.) The Coats court characterized AB 218’s amendments as a “revival” of a previously
barred cause of action for failure to timely present a government action, not
the creation of new liability. Defendant’s characterization of the legislation
is misplaced. (Coats
at 430–431.)
Defendant argues that the claims
presentation requirement under the Government Tort Claims Act is a substantive
element of a claim for alleged abuse or molestation. The Legislature cannot
excuse a substantive element of any claim against a public entity. (Shirk
v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209 ["Timely
claim presentation is not merely a procedural requirement, but is, as this
court long ago concluded, ‘a condition precedent to plaintiff's maintaining an
action against defendant’ [citations omitted], and thus an element of the
plaintiff's cause of action."].)
In direct response to Shirk, the
Legislature enacted Government Code, section 905, subd. (m) which eliminated
the claims presentation requirement for claims pursuant to Civil Procedure,
section 340.1 for damages for childhood sexual abuse. (A.M.
v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1258.) The
enacting legislation, S.B. 640, was “intended to address the Shirk
decision by expressly providing that childhood sexual abuse actions against
public entities are exempted from presentation requirements, but only for
claims arising out of conduct occurring on or after January 1, 2009.” (Id.)
Therefore, Defendant’s reliance on Shirk for the proposition that AB 218
unconstitutionally gifts public funds by removing an element of a cause of
action (claims presentation requirements) is misplaced, given the Legislature’s
passage of Gov. Code, section 905 subd. (m) in response to Shirk.
Moreover, the exemption for claims
presentation requirements applicable to claims arising on or after January 1, 2009,
was subsequently eliminated by the passage of AB 218 and added that the changes
were retroactive. (Gov. Code § 905 subd (p).) Plaintiff filed this action on
July 28, 2022. The version of the statute in effect at the time of filing
provided that any claim not litigated to finality and that would otherwise be
barred as of January 1, 2020 “because the applicable statute of limitations,
claim presentation deadline, or any other time limit had expired, is revived,
and these claims may be commenced within three years of January 1, 2020.” (Code
Civ. Proc., § 340.1 (q).)
Finally, Defendant unpersuasively contends
that AB 218 does not serve a public purpose and therefore constitutes a gift of
public funds. Funds expended for a
public purpose does not constitute a “gift” although private persons may
benefit. (Id. at 746.) The existence of a gift is determined by the
Legislature although the courts can infer the public purpose from other
legislation or the way the legislation is enacted. (Scott v. State Bd. of Equalization (1996)
50 Cal.App.4th 1597, 1604; Jordan
v. California Dept. of Motor Vehicles
(2002) 100 Cal.App.4th 431, 450 [“It is well settled that the primary question to be considered in
determining whether an appropriation of public funds is to be considered a gift
is whether the funds are to be used for a public or private purpose. If they
are to be used for a public purpose, they are not a gift within the meaning of
this constitutional prohibition. [Citation.]"].)
Thus,
while Defendant relies on Jordan, that case supports Plaintiff’s contention
that AB 218 serves a public purpose. The retroactivity provision
of section 340.1 “indicates a clear legislative intent to maximize
claims of sexual-abuse minor plaintiffs for as expansive a period as possible.
The public policy is manifest from the text of the law.” (Liebig v. Superior Court (1989)
209 Cal.App.3d 828, 834.)
The
second case on which Defendant relies also supports Plaintiff’s contention. The
relevant inquiry in determining whether the use of public funds is a gift is
whether the funds are to be used for a public or private purpose. If they are
to be used for a public purpose, they are not a gift within the meaning of this
constitutional prohibition. (Orange
County Foundation v. Irvine Co.
(1983) 139 Cal.App.3d 195, 200.)
B.
The
third cause of action for negligent hiring, supervision, and retention is well
stated.
A
public entity is not liable for an injury “[e]xcept as provided by statute.” (Gov. Code § 815.) Plaintiff must allege
sufficiently detailed facts to support an inference that each of the statutory
elements of liability is satisfied. General allegations are regarded as
inadequate. (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.
Moreover, “[s]ince the duty of a governmental agency can only be created by
statute or ‘enactment,‘ the statute or ‘enactment‘ claimed to establish the
duty must at the very least be identified." (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)
The claim is adequately based on
statute. Plaintiff alleges that the District is liable for the failure of its
employees, staff, and supervisors, for hiring and retaining Doe 2, for which
the District is liable under Government
Code section 815.2. (Gov. Code §815.2, ["A public
entity is liable for injury proximately caused by an act or omission of an
employee of the public entity within the scope of his employment if the act or
omission would, apart from this section, have given rise to a cause of action
against that employee or his personal representative"].) The District’s duty arises from a special
relationship between it and the student, which "entailed the duty to take
reasonable measures to protect plaintiff from injuries at the hands of others
in the school environment." (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 877.)
Moreover, Plaintiff’s
failure to identify specific names of witnesses, the date of the events, where,
or what was witnessed, does not render the complaint defective. Plaintiff is
not required to allege evidentiary facts. Identifying individuals by name is
not required and does not render the pleading uncertain. (Hart
at 872, [The claim that Plaintiff was
required to identify employees at the pleading stage was not supported by
authority. “To survive a demurrer, the complaint need only allege facts
sufficient to state a cause of action; each evidentiary fact that might
eventually form part of the plaintiff's proof need not be alleged.”].)
C.
Demurrer to the fourth cause of action for
failure to report suspected child abuse is SUSTAINED.
This claim
specifically alleges a violation of the Child Assault and Neglect Reporting Act
(“CANRA”), codified at Penal Code Section 11165, et seq. (Complaint, ¶ 53.)
That legislation was enacted in 1987. Plaintiff alleges the claims arose in
1976. Plaintiff’s opposition does not address Defendant’s liability for a
statute that did not exist at the time of the alleged events.
D.
Demurrer to the fifth cause of action for
negligent supervision of a minor is OVERRULED.
This cause of action is not duplicative of
the sixth cause of action for general negligence as fifth cause of action is
specifically addressed to the District’s duty owed to the minor arising from
its special relationship. (Complaint, ¶ 64.) These duties are imposed by the Education
Code and Cal.
Code Regs., tit. 5, § 5551. (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 871, [“Responsibility for the safety of public school
students is not borne solely by instructional personnel. School principals and
other supervisory employees, to the extent their duties include overseeing the
educational environment and the performance of teachers and counselors, also
have the responsibility of 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."].)
Plaintiff alleges that the District
received prior complaints and warnings from students and parents about Doe 2’s
improper behavior, that he touched students and made them feel uncomfortable, and
made inappropriate sexual comments to students. (Complaint, ¶ 65.) Plaintiff
alleges Defendant did not take any responsive action. (Id.)
These allegations are sufficient to support the claim.
As previously stated, Plaintiff is not
required to identify particular evidentiary facts at this stage, and the
failure to do so does not render the complaint fatally uncertain. Uncertainty exists where a complaint’s factual
allegations are so confusing, they do not sufficiently apprise a defendant of
the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp.
(1986) 185 Cal.App.3d 135, 139, fn. 2; Code
Civ. Proc., § 430.10(f).) The allegations are sufficiently detailed and clear.
Moreover, demurrers for uncertainty are 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.)
V.
CONCLUSION
Based on
the foregoing, demurrer to the fourth cause of action for failure to report
child abuse is SUSTAINED without leave to amend as Plaintiff has not
demonstrated how this cause of action can apply to events that allegedly
occurred. (Association of Community Organizations for Reform Now v. Department
of Industrial Relations (1995) 41
Cal.App.4th 298, 302.) In all other respects,
demurrer is OVERRULED. Defendant is ordered to file its answer within 10 days.