Judge Ralph C. Hofer, Case Number: 22BBCV00933, Date: 2024-02-23 Tentative Ruling

Judge: Ralph C. Hofer, Case: 22BBCV00933, Date: 2024-02-23 Tentative Ruling

Case Number: 22BBCV00933 Hearing Date: February 23, 2024 Dept: D

TENTATIVE RULING

Calendar: 5

Date: 2/23/2024

Case No: 22 BBCV00933 Trial Date: August 26, 2024

Case Name: Jane Doe 7034 v. Burbank Unified School District

JUDGMENT ON THE PLEADINGS

Moving Party: Defendant Burbank Unified School District

Responding Party: Plaintiff Jane Doe 7034

Meet and Confer? Yes

RELIEF REQUESTED:

Judgment on the pleadings.

DEFENDANT FILED ANSWER TO COMPLAINT?

Yes, filed March 6, 2023

CAUSES OF ACTION: from First Amended Complaint

1) Negligence

2) Negligent Supervision and Retention

SUMMARY OF FACTS:

Plaintiff Jane Doe 7034 brings this action against defendant Burbank Unified School District, alleging that in 1978, when plaintiff was a 15-year-old student at John Muir Middle School, plaintiff was groomed and sexually assaulted by her science teacher, Robert Goar, a Burbank Unified School District employee.

Plaintiff alleges that defendant never investigated Goar’s inappropriate conduct with minors, failed to limit Goar’s interaction and involvement with underage students until a satisfactory investigation could be completed, and failed to comply with its duty to ensure the safety of students and to report suspected child abuse to the appropriate authorities. Plaintiff alleges that defendant’s liability arises from its employees’ and agents’ actions taken within the course and scope of their employment subsequent to Goar’s grooming and assaults of plaintiff and that defendant is also directly liable as a result of vicarious liability for the failure of its administrative staff to reasonably supervise its employees. Plaintiff alleges that as a result of the sexual assaults by Goar, which were enabled and facilitated by defendants, plaintiff has suffered injury, to plaintiff’s damage.

ANALYSIS:

Procedural

Request for Judicial Notice of Minute Orders in Other Superior Court Cases

In support of its motion, defendant Burbank Unified School District has filed a Request for Judicial Notice, requesting that the court judicially notice an Order After Hearing in a Contra Costa Superior Court case, and a Minute Order in a Superior Court matter in the County of Merced.

These orders in other superior court cases, unrelated to this case, have no precedential value.

Plaintiff has filed an opposition to the court judicially noticing or considering these unpublished state trial court rulings, arguing that the Request for Judicial Notice impermissibly seeks to make an end-run around the rule against citing unpublished decisional authority.

Under CRC Rule 8.1115:

“(a) Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”

Subdivision (b) states:

“An unpublished opinion may be cited or relied on:

(1) When the opinion is relevant under the doctrines of law of the case, res judicata or collateral estoppel; or

(2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.”

The minute orders of other superior court judges are not published opinions which may be cited as precedent to this court, and, even if they constituted unpublished opinions, neither of the exceptions apply here. Reliance on such non-binding minute orders from other superior courts appears to be a deliberate violation of the letter, as well as the spirit, of the Court Rule.

Plaintiff cites to Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, in which the Second District declined a request by amicus curiae in that case to take judicial notice of a number of rulings by state and federal trial courts relating to a legal issue raised in the matter. The Second District declined to take judicial notice of such decisions, noting, “A written trial court ruling in another case has no precedential value in this court, which is also the rule in federal courts.” Budrow, at 884-885, citations omitted.

The Second District in Budrow cited Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831, in which the court of appeal had also declined to consider a trial court ruling in an unrelated superior court case, noting, “a written trial court ruling has no precedential value.” Santa Ana Hospital, at 831. The court of appeal expressly rejected an argument that since the predecessor statute to CRC Rule 8.1115, CRC Rule 977, precluded citation of unreported “appellate opinions,” unreported “trial court” opinions are citable authority. The court of appeal found this an “illogical conclusion.” Santa Ana Hospital, at 831.

In this case, the trial court minute orders in other unrelated cases and argument based on them accordingly is disregarded by this court, the objections are sustained, and the Request for Judicial Notice is denied. The court will also consider whether it is appropriate to set an OSC re sanctions against counsel for defendant for engaging in this conduct.

Substantive

CCP § 438 establishes the procedures for moving for judgment on the pleadings, and provides, in pertinent part:

“(c)(1) The motion provided for in this section may only be made on one of the following

grounds:...

(B) If the moving party is a defendant, that either of the following conditions exist:

(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint

(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.”

Subdivision (d) provides that “the grounds for the motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

The motion may be granted with leave to file an amended complaint, or without leave to amend, in which case, judgment may be entered in favor of the moving defendant. CCP § 438 (h).

Defendant Burbank Unified School District argues that the two causes of action brought by plaintiff in her FAC must be dismissed for failure of plaintiff to comply with the government claim requirement of Government Code sections 911.2 and 945.4, and that plaintiff has failed to sufficiently plead compliance with the government claims requirement or otherwise adequately state why plaintiff should be exempt from doing so.

Defendant concedes that plaintiff in the FAC alleges:

“Plaintiff brings this Complaint pursuant to California Code of Civil Procedure section 340.1, as amended by Assembly Bill 218, for the childhood sexual assault he suffered at the hands of Defendants. Pursuant to California Government Code section 905(m) as amended by Assembly Bill 218, Plaintiff is specifically exempt from the claims presentation requirement for his claims against Burbank Unified School District.”

[FAC, para. 3].

Government Code §945.4 provides, in pertinent part: “ . . . no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted on by the board, or has been deemed to have been rejected by the board…”

Under Dilts v Cantua Elementary School District (1987) 189 Cal.App.3d 27, 31, in circumstances where a claim must be presented, “the plaintiff must allege compliance with, or circumstances excusing compliance, or the complaint is subject to general demurrer.”

Defendant concedes that plaintiff in the FAC alleges:

[FAC, para. 3].

This allegation appears sufficient to allege circumstances excusing compliance with the claims presentation requirement, that is, that there has been a statutory amendment enacted by the legislature which specifically exempts plaintiff from the claims presentation requirement.

Defendant argues that although the legislature acted in 2020 to revive and extend the statute of limitations for claims of sexual assault, this modification to the statute of limitations did not also revive, or otherwise affect, the government claim filing requirement. Defendant indicates that to address this circumstance, the legislature in 2020 also modified Government Code section 905 (m) in order to retroactively also eliminate the claims requirement for such claims when made against a government entity such as defendant.

Specifically, CCP § 340.1, as amended by AB 218, as it read effective January 1, 2020, expressly revived otherwise time-barred claims related to childhood sexual assault, and actually expressly includes claims subject to a claims presentation requirement:

“Notwithstanding any other provision of law, any claim for damages described in paragraphs (1) through (3), inclusive of subdivision (a) that has not been litigated to finality and that would otherwise be barred as of January 1, 2020, because the applicable statute of limitations, claims presentation deadline, or any other time limit had expired, is revived, and these claims may be commenced within three years of January 1, 2020.

CCP § 340.1(q), emphasis added.

Under CCP § 340.1(r), as amended:

“The changes made to the time period. . . apply to and revive any action commenced on or after the date of enactment of that act . . . including any action or causes of action that would have been barred by the laws in effect before the date of enactment.”

Amendments which became effective in January of 2024, reinforce that actions “in which the childhood sexual assault occurred on or before December 31, 2023,” may be commenced pursuant to the applicable statute of limitations “set forth in existing law as it read on December 31, 2023.” CCP § 340.1(p).

On January 1, 2020, AB 218 also amended Government Code § 905, which provides, in pertinent part:

“There shall be presented in accordance with Chapter 1…and Chapter 2… all claims for money or damages against local public entitles except any of the following:…

(m) Claims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse.”

(Emphasis added).

Government Code § 905 now also expressly provides:

“(p) The changes made to this section by the act that added this subdivision are retroactive and apply to any action commenced on or after the date of enactment of that act…”

Plaintiff here accordingly argues that the plain language of the statutes make clear the legislature intended to retroactively excuse childhood sexual assault from the claims presentation requirement.

This result appears to be the case, the FAC appropriately alleges that plaintiff is not subject to the claims presentation requirement, and the motion is denied.

Defendant argues that notwithstanding the legislature’s clear intent and efforts in this regard, the retroactive elimination of the claims requirement from such sexual abuse claims brought against public entities should be disregarded by the court here as unconstitutional.

Defendant argues that timely claim presentation is not a procedural hurdle akin to a statute of limitations, but when claim presentation is required, the claim presentation is considered a substantive element of the claim.

Defendant argues that in 1978, when the alleged events in the FAC occurred, a government claim was clearly required to avoid the immunity on the part of a public entity such as defendant and was a substantive element of plaintiff’s cause of action against a public entity. Defendant argues that the legislature’s subsequent effort to create a basis for relief notwithstanding the failure to comply with the claims presentation requirement, constitutes an improper gift of public funds and violates the California Constitution, Article XVI section 6. Specifically, defendant argues that the legislation creates a cause of action where none existed before, as the government claims requirement previously had been a substantive element of the cause of action against a public entity, so without a timely claim, the cause of action itself did not exist.

Defendant argues that because AB 218 is unconstitutional as applied to public entities, all of plaintiff’s causes of action fail as a matter of law.

Defendant relies on Article XVI, section 6 of the California Constitution, which provides, in pertinent part:

“The Legislature shall have no power to give or to lend, or to authorize the giving or lending … in any manner whatever, for the payment of liabilities of any individual, association, municipal or other corporation whatever; nor shall it have power to make any gift or authorize the making of any gift, of any public money….”

It is held that, “[t]he term ‘gift’ in the constitutional provision ‘includes all appropriations of public money for which there is no authority or enforceable claim,’ even if there is a moral or equitable obligation.’” Property California SCJLW One Corp. v. Leamy (2018) 25 Cal. App. 5th 1155, 1166, n. 6, citing Conlin v. Board of Sup’rs of City and County of San Francisco (1893) 99 Cal. 17, 21–22. In Conlin, the California Supreme Court long ago observed, “The legislature is to be regarded as holding the public moneys in trust for public purposes…” Conlin, at 22.

Defendant relies on Shirk v. Vista Unified School District (2007) 42 Cal.4th 201, which addressed a situation where the California Supreme Court was evaluating childhood sexual abuse statutes amendments which the Court found did not reflect any legislative intent to excuse victims of childhood sexual abuse from complying with the government claims statute when suing a public entity. In fact, the Court in Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 914-915, noted that the legislative history of the version of Government Code section 905 (m) which had been enacted since Shirk, “makes clear the Legislature overruled Shirk,” but noted that in that version, the legislature had done so only prospectively. Rubenstein, 914

915.

The current legislative intent from the plain language of the statutes to excuse victims from complying with the government claims requirement retroactively, could not be clearer.

Plaintiff urges that the legislature did not improperly create a cause of action which did not previously exist, but that the claim for sexual abuse existed when it occurred, and the entity could have faced liability once it had occurred. Plaintiff also points out that the revision retains the burden of proof and all critical requirements that a claimant prove the validity of the claim on its merits. See e.g., CCP § 340.1 (e) (“This section shall not be construed to alter the otherwise applicable burden of proof, as defined in Section 115 of the Evidence Code, that a plaintiff has in a civil action subject to this section”).

Plaintiff also points out that the Government Code creation of liability for public entities has its fundamental roots in statute. The Government Claims Act expressly recognizes:

“Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”

Government Code § 815(a), emphasis added.

Article 3, section 5 of the California Constitution provides: “Suits may be brought against the state in such manner and in such court’s as shall be directed by law.”

Plaintiff argued that these provisions establish public entity liability is entirely statutory; in other words, public entity liability is wholly subject to the terms and conditions enacted by the legislature. See Hayashi v. Alameda County Flood Control and Water Conservation Dist. (1959) 167 Cal. App. 2d 584, 586-587 (holding predecessor Cal. Const., art. 20, § 6 “permits the Legislature to prescribe how and when suits may be brought against the State and its political subdivisions”).

Plaintiff also points out that a legislative act such as that here, with a clear intent on the part of the legislature, should be viewed with deference. Plaintiff quotes from the California Supreme Court opinion in Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal. 4th 486, 520

“‘It is no small matter for one branch of the government to annul the formal exercise by another and coordinate branch of power committed to the latter, and the courts should not and must not annul, as contrary to the constitution, a statute passed by the Legislature, unless it can be said of the statute that it positively and certainly is opposed to the constitution.’…

‘If there is any doubt as to the Legislature’s power to act in any given case, the doubt should be resolved in favor of the Legislature’s action.’”

Howard Jarvis, at 520-521, quoting Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal. 3d 685, 691-692.

Plaintiff argues that AB 218 was a constitutional exercise of the Legislature’s power to prescribe the conditions for liability for childhood sexual assault, including public entities’ liability, and it has not been established as positively and certainly opposed to the constitution.

Plaintiff also argues that even if AB 218’s revival provision were construed as otherwise implicating a “gift” of public funds, it would still be constitutional, as made for a public purpose.

Plaintiff relies on Mannheim v. Superior Court (1970) 3 Cal.3d 678, 691, in which the California Supreme Court observed:

“[I]t is well established that a relinquishment of rights by the state—if made for a public purpose—will not violate the constitutional prohibition.

The concept of public purpose has been liberally construed by the courts, and the Legislature’s determination will be upheld unless it is totally arbitrary.”

Mannheim, at 690-691, citation omitted.

“The determination of what constitutes a public purpose is primarily a matter for the Legislature and will not be disturbed as long as it has a reasonable basis.” San Diego County Dept. of Social Services v. Superior Court. (2005) 134 Cal.App.4th 761, 766, citation omitted.

Plaintiff argues that legislative history showing that the public purpose served by AB 218 is clear. “In Assembly Bill 218, the Legislature has again attempted to balance the competing concerns of protecting public entities from stale claims and allowing victims of childhood sexual abuse to seek compensation.” Coats v. New Haven Unified School District (2000) 46 Cal.App.5th 415, 429.

Plaintiff also argues that the legislature has acknowledged that survivors of childhood sexual assault sometimes take years, if not decades, to come forward, and that this is incompatible with the Government Claim Act’s short timeframe for its claim presentation requirement. It appears that this showing is sufficient to give rise to an inference that the statutory provisions serve a valid public purpose, particularly at the pleading stage.

Defendant in reply argues that the legislation does nothing but punish public entities for actions its present employees did not commit and were realistically unaware of since they occurred so long ago, when the legal landscape and requirements for recognizing sexual abuse were vastly different than they are today. This assertion sounds, in a defense to the merits of the claim, and not an argument that there is no valid public purpose underlying the legislation.

The FAC is sufficient to withstand judgment on the pleadings, and the motion is denied.

RULING:

Defendant Burbank Unified School District’s Motion for Judgment on the Pleadings is DENIED.

Defendant Burbank Unified School District’s Request for Judicial Notice is DENIED. The Court has not judicially noticed or considered minute orders issued in completely unrelated superior court actions in other counties.

Plaintiff’s Objections to Defendant Burbank Unified School District’s Request for Judicial Notice are SUSTAINED.

Plaintiff’s UNOPPOSED Request for Judicial Notice in Support of Opposition to Burbank Unified School District’s Motion for Judgment on the Pleadings is GRANTED.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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