Judge: Michael Shultz, Case: 22CMCV00266, Date: 2024-02-20 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/u
Case Number: 22CMCV00266 Hearing Date: February 20, 2024 Dept: A
22CMCV00266
John Doe v. Compton Unified School District
[TENTATIVE] ORDER OVERRULING
DEMURRER TO PLAINTIFF’S COMPLAINT
I.
BACKGROUND
The
complaint alleges that Plaintiff was a victim of child sexual assault
perpetrated by Doe 2, who was employed as a teacher at Ralph Bunche Elementary
School during the 1983 to 1986 school years when Plaintiff was between nine and
14 years old. 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, Compton Unified School
District (“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 by creating “new liability” against
a government entity. The court has no
power to create liability against the state for past acts of negligence. AB 218,
which serves no public purpose 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 or a basis for imposing vicarious liability against the District.
Plaintiff argues that the District 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, the District argues that the allegations
are insufficient as alleged against a public entity which requires specificity
in pleading. Plaintiff’s case authority does not apply in the context of this
case.
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.
The District 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.) The
District 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.)
The District’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." (Bourn
at 328.)
The
District 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.)
The District next cites Powell
v. Phelan (1903) 138 Cal. 271, which is 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, which the Powell
Court determined was unconstitutional because it created liability, and
therefore, resulted in an impermissible gift of public funds. (Powell
213.) The court held that the gift
clause did not allow “any room for moral considerations.” (Powell
at 274.) These cases do not apply, because AB 218 does not
create new liability.
The District then cites Chapman
v. State (1894) 104 Cal. 690, 694, which is distinguishable, because the
plaintiff there 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 in Chapman 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.) However, a more recent opinion has 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, as the District characterizes
the legislation. (Coats
v. New Haven Unified School District
(2020) 46 Cal.App.5th 415, 430–431.)
The District 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."].)
However, 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, the District’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 August
8, 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).)
The statute on which Plaintiff relies for
government entity liability was enacted in 1963. (Gov. Code § 815.2.) AB 218
did not “create” an entirely new liability; 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.)
The District 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 manner in which 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.]"].)
While
the District 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 of time 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 the District 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 which imposes vicarious liability on a public entity for the negligence
of its employees. Plaintiff alleges that the District is liable for the failure
of its employees, staff, and supervisors, for failing to adequately and
properly investigate, hire, train, and supervise its employees and staff, and
to protect its students from harm caused by such dangerous and unfit staff for
which the District is liable under Gov.
Code, § 815.2 (Gov.
Code, § 815.2, ["A public entity is liable for
injury proximately caused by an ac, t 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;
Complaint, ¶ 36.)
The District misconstrues the allegations
as imposing liability against the District for the schoolteacher’s alleged criminal
conduct. (Dem. 14:2-9.) The basis for liability is the District’s alleged failure,
by and through its employees, to supervise, retain, or investigate, its own
employees. Moreover, the complaint’s lack of allegations identifying 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. The omission 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 OVERRULED
This claim
specifically alleges a violation of the Child Assault and Neglect Reporting Act
(“CANRA”), codified at Penal Code Section 11165, et seq. (Complaint, ¶ 48.) The District argues it does not apply to
public entities, as “mandated reporters” are defined as individuals. (Pen. Code, § 11165.7.) As previously discussed, liability
against a public entity may be vicarious. Plaintiff is not required to allege
evidentiary facts such as when or where the abuse occurred or the identity of
the employee who purportedly observed it.
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 third cause of action, the latter of which arises from the District’s breach
of duty resulting from its failure to supervise, investigate or retain an
employee who the District allegedly knew to be unfit.
In contrast, the fifth cause of action arises
from the District’s duty owed to the minor arising from its special
relationship to protect the minor. (Complaint, ¶ 51.) 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
ignored “clear and obvious signs” that Doe 2 was spending significant but
unjustified time with minor students, was inappropriately touching them, taking
them on field trips, giving them money, and that he was sexually assaulting,
abusing and or otherwise engaging in wrongful conduct towards Plaintiff and
others. (Complaint, ¶ 53) These allegations are sufficient to support
the claim. The absence of specific identifying information 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 third, fourth and fifth causes of action are
OVERRULED. The District is ordered to file its answer
within 10 days.