Judge: Michael Shultz, Case: 22CMCV00492, Date: 2023-11-16 Tentative Ruling
Case Number: 22CMCV00492 Hearing Date: November 16, 2023 Dept: A
22CMCV00492 Jane Doe v. Luis Silva, et
al.
Thursday,
November 16, 2023
[TENTATIVE] ORDER
I.
BACKGROUND
This action arises from
alleged childhood sexual assault that occurred while Plaintiff was a student at
Paramount High School. At the time Plaintiff filed the complaint on November 3,
2023, Plaintiff was under 40 years old. Plaintiff alleges claims for sexual
battery, intentional infliction of emotional distress, and public entity
liability under Gov Code § 815.2 and 815.4.
II.
ARGUMENTS
Defendant moves for
judgment on the pleading as to all claims, but specifically the third cause of
action for public entity liability. While the legislation enacting Civil
Procedure § 340.1 (“AB 218”) retroactively revived claims that were previously
barred by the statute of limitations, Defendant contends the amendment
effectively stripped Defendant of immunity and constitutes an impermissible use
of public funds. Defendant also argues that Plaintiff failed to present a claim
under the Tort Claims Act.
Plaintiff argues that there
is no authority to support the claim that AB 218’s revival of previously barred
claims and removing the claims presentation requirement is a gift of public
funds.
Defendant did not file a
reply brief due on November 8, 2023. (Code Civ. Proc., § 1005.)
III.
LEGAL
STANDARDS
A party can move for
judgment on the pleadings on grounds the complaint does not state facts
sufficient to constitute a cause of action against that defendant. (Code Civ.
Proc., § 438 subd.
(c)(B)). The motion performs the same function as a general demurrer and
attacks only defects disclosed on the face of the pleadings or by matters
subject to judicial notice. (Burnett
v. Chimney Sweep (2004) 123
Cal.App.4th 1057, 1064). For the purposes of this motion, all properly alleged
material facts are deemed true. (Fire
Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.)
IV.
DISCUSSION
Plaintiff
commenced this action on November 3, 2022. The version of the statute then in
effect became effective on January 1, 2020, and 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).)
Defendant contends
that AB 218 improperly revived otherwise stale claims for childhood sexual assault
and retroactively eliminated the claim presentation requirement for claims that
accrued before 2009. Defendant contends these amendments violate the constitutional
prohibition against gifting of public funds.
The California
Constitution states that the Legislature has no power to make a gift of any
public money or thing of value to any individual. (Cal.
Const., art. XVI, § 6.) 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 cites Bourn
v. Hart (1892) 93 Cal. 321, which held that a “legislative
appropriation” made to an individual in payment of a claim for personal injury
damages for which the state is not responsible, “is a gift within the meaning
of the Constitution.” (Bourn
v. Hart (1892) 93 Cal. 321, 328.) However, this case does not involve a
legislative appropriation of money.
Defendant
contends that imposing liability for a past act of negligence constitutes a
“gift of public money or other thing of value to any person.” (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.) Here, the
legislature did not create liability by virtue of AB 218 where none existed.
Statutory liability against a public entity is conferred by the Government Code
which existed at the time of the alleged acts. (Gov.
Code, § 815.) Creation of liability is not at issue.
The issue is
whether AB 218’s revival of claims previously barred and the abrogation of
claims filing requirements constitutes a gift of public funds. The California
Constitution states that the Legislature does not have the 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 …
.” (County
of Alameda v. Carleson (1971) 5 Cal.3d 730, 745.)
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.]"].)
Here, 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.) Additionally,
the statute’s public purpose is evident from the Assembly’s Floor Analysis,
which acknowledged the bill’s support from children’s advocates, police chiefs,
the PTA and crime victims’ organizations. (Plaintiff’s Request for Judicial
Notice, Ex. A, page 2.) The committee recognized the lifetime damage that abuse
causes its victims and acknowledged that with a shortened statute of
limitations, “there can be no justice and more children will be abused.” (Id.).
Conlin, cited
by Defendant, is generally instructive on the principles of a “gift” under the
Constitution, however, it is otherwise factually distinguishable. There, the Legislature
passed a statute authorizing the City & County of San Francisco to pay
$54,015 to a contractor for work done upon public streets pursuant to a
contract that remained unpaid. It involved a personal benefit, not a public
purpose. (Conlin
at 20.). Defendant also cites Powell
v. Phelan (1903) 138 Cal. 271, which is not particularly
instructive as it did not consider whether newly enacted legislation for the
purpose of giving money to certain jurors in criminal cases they were otherwise
not entitled to was for a public purpose. (Powell
at 274.)
Defendant also
cites Heron
v. Riley (1930) 209 Cal. 507 which rejected the argument that the
appropriation of funds to pay judgments against the State constituted a gift.
The Court held that application of such funds are not gifts of public money as the
judgments were obtained after due process requirements were met. (Heron
at 517.) The court distinguished the legislation at issue by stating the
"legislature has not attempted to create a liability against the state for
any past acts of negligence on the part of its officers, agents or
employees—something it could not do, and the doing of which would, in effect,
be the making of a gift—but has provided that ‘hereafter it shall be liable for
certain things done which cause damage to its citizens, its liability to be
first determined by an appropriate action at law." (Id.)
Heron did not discuss whether retroactive application of a revival
statute constituted a gift of public funds.
The Gift Clause "was
intended to prevent the giving of a bonus and was not intended to apply
to the settlement of claims, whether they had great or little merit, or no
merit at all." (Bourn
at 322.) Used in its popular sense, a “gift” is a “gratuitous donation
without consideration, and without any reasonable claim to it.” (Id.)
Section 340.1 does not involve giving of a bonus.
Defendant has
not established that Plaintiff does not have an enforceable claim because she
was required to present a government claim until the Legislature amended the
statute in 2009, abrogating those requirements. The California Supreme Court’s
decision on which Defendant relies was based on a government claim presented by
the Plaintiff in 2012. The effective version of the statute provided that “the
time for commencement of the action shall be within eight years of the date the
plaintiff attains the age of majority or within three 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
abuse, whichever period expires later, … .”(1999
Cal ALS 120, 1999 Cal SB 674, 1999 Cal Stats. ch. 120, 1999 Cal ALS 120, 1999
Cal SB 674, 1999 Cal Stats. ch. 120.) The statute also did not revive
claims otherwise expired because of a failure to present a timely government
claim. The Rubenstein court acknowledged that “[h]ad 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.” (Rubenstein
v. Doe No. 1 (2017) 3 Cal.5th 903, 907.)
Here, Plaintiff
did not present a tort claim pursuant to the 2020 version of 340.1, which
expressly revives claims “not litigated to finality that would otherwise be
barred because of the statute of limitations or claims presentation deadline or
any other time limit had expired, … .” (Cal
Code Civ Proc § 340.1 (q).) Rubenstein does not apply.
V.
CONCLUSION
Based
on the foregoing, Defendant’s Motion for Judgment on the Pleading is DENIED.