Judge: Michael Shultz, Case: 22CMCV00580, Date: 2023-12-05 Tentative Ruling
Case Number: 22CMCV00580 Hearing Date: December 5, 2023 Dept: A
[TENTATIVE] ORDER
I.
BACKGROUND
The first amended complaint (“FAC”) alleges damages suffered
by Plaintiff as a result of childhood sexual assault, while Plaintiff was 10-12
years old and an elementary school student. Plaintiff alleges claims for
negligence and negligence of public employees.
Defendant, Los Angeles Unified School District, demurs to the
second cause of action on grounds AB 218 created a new liability and is an
unconstitutional gift of public funds. The appropriation of public funds for
unenforceable claims serves no public purpose.
In opposition, Plaintiff argues that AB 218 did not create a
gift of public funds nor an unconstitutional gift. The legislation was for a
public purpose.
In reply, Defendant clarifies that the issues raised are
whether AB 218 creates new liability for past negligence, and if so, does it
serve a public purpose. Plaintiff never presented a government claim to
Defendant, which is a necessary element, and therefore, did not have an
enforceable claim until the passage of AB 218. Even if the Legislature could
retroactively eliminate the claims presentation requirement, the statute does
not serve a public purpose.
II. LEGAL
STANDARDS
The bases for
demurrer are limited by statute and may be sustained for failure to state facts
sufficient to support a cause of action. (Code Civ. Proc., § 430.10). 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). The court must
assume the truth of (1) the properly pleaded factual allegations; (2) facts
that can be reasonably inferred from those expressly pleaded; and (3)
judicially noticed matters. (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).
III. DISCUSSION
Plaintiff’s
request for judicial notice of two Superior Court orders addressing AB 218 is
DENIED as the orders are not relevant to the Court’s disposition of this
demurrer. While the court may take judicial notice of court records, judicial
notice is proper as to those facts that are not reasonably subject to dispute.
(Sosinsky
v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The Court grants judicial
notice of the Senate Floor Analysis for AB 218. (Evid. Code, § 452 subd. (a)
and (c).)
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 file a government claim 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 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
second cause of action to which Defendant demurs is for negligent supervision
and protection of a minor student in violation of Gov 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 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.
Continuing
its argument that AB 218 impermissibly creates liability for a past act of negligence, Defendant cites 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.) However, 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, as Defendant characterizes the legislation. (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."].)
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, 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 November 22, 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 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.)
IV.
CONCLUSION
Based on the foregoing, Defendant’s
demurrer to the FAC is OVERRULED. Defendant is ordered to answer within 10
days.