Judge: Michael Shultz, Case: 22CMCV00661, Date: 2023-12-12 Tentative Ruling
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Case Number: 22CMCV00661 Hearing Date: December 12, 2023 Dept: A
22CMCV00661 John Doe J.M. v. Doe 1, et
al.
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint
alleges that Plaintiff, currently 42 years old, was a victim of child sexual
abuse in 1991 or 1992 perpetrated by Defendant, Twone Flowers (Doe 2), who was
allegedly an agent or teacher’s aide employed by Defendant, Compton Unified
School District (Doe 1) (“the District”) while Plaintiff was a student at
Enterprise Middle School. Plaintiff alleges claims relating to the alleged
abuse.
The District
argues that some of Plaintiff’s claims are subject to demur because the claims were
retroactively revived although such claims were unenforceable. The enacting
legislation, AB 218, 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. Removing a necessary
element of a claim (requirement to present a tort claim) constitutes an
impermissible gift of public funds.
Plaintiff
argues that the cases on which Defendant relies have tenuous application. AB
218 has been declared constitutional. There are no grounds by which the Court
should usurp the role of the Legislature and unilaterally declare the law
unconstitutional.
In
reply, Defendant argues that the only inquiry with respect to the law’s public
purpose is whether the claims were valid at the time the Legislature made the
appropriation of funds.
II.
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.)
III.
DISCUSSION
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 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. “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 causes of action at issue are based
on liability imposed by 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.
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.) 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 December
9, 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.]"].)
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 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 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.)
IV.
CONCLUSION
Based
on the foregoing, Defendant’s demurrer to the complaint is OVERRULED. Defendant
is ordered to answer within 10 days.