Judge Randolph M. Hammock, Case Number: 23STCV14606, Date: 2024-02-07 Tentative Ruling

Plaintiff T.W. alleges he suffered childhood sexual abuse from Mike Graber while a student at Pasadena Unified School District in 1983. Plaintiff brings causes of action against the District for negligence and negligent hiring, retention, and supervision, and against Does 2 through 25 for negligence and negligent hiring, retention, and supervision.

Defendant’s Demurrer to the First Cause of Action is SUSTAINED. Whether leave to amend is to be granted will depend on whether Plaintiff can make a sufficient offer of proof at the hearing as to how he could successfully amend his Complaint, consistent with this ruling.

Each party asks the court to take judicial notice of various trial court rulings or records. With certain exceptions, not applicable here, the Rules of Court generally prohibit judicial notice of unpublished opinions. (See Cal. Rules of Court, rule 8.1115(a); see also Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal. 5th 260, 269.) Trial court opinions are unpublished and have no precedential value. (Neary v. Regents of Univ. of Calif. (1992) 3 Cal.4th 273, 282.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Defendant District demurrers to the First Amended Complaint. Defendant first argues that Assembly Bill 218 is unconstitutional, and therefore its purported waiver of the Government Claims Act requirements is invalid. It follows that Plaintiff needed, but failed to, plead compliance with the Government Claims Act.

Under CCP § 340.1, as amended by AB 218, in an action for recovery of damages suffered as a result of childhood sexual assault, the time for commencement of the action shall be within 22 years of the date the plaintiff attains the age of majority or within five 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 assault, whichever period expires later, for any of the following actions: (1) an action against any person for committing an act of childhood sexual assault; or (2) an action for liability against any person or entity who owed a duty of care to the plaintiff, if a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual assault that resulted in the injury to the plaintiff. (CCP § 340.1, subd. (a)(1)-(2).)

CCP § 340.1(q) further provides: “Notwithstanding any other law, a 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, 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. A plaintiff shall have the later of the three-year time period under this subdivision or the time period under subdivision (a) as amended by the act that added this subdivision.”

AB 218 also amended the provision that lists exceptions to the Government Claims Act, Government Code section 905, by removing language in subdivision (m) that limited the exception to claims arising out of conduct that occurred on or after January 2009 and adding subdivision (p), which made this change retroactive. (See Coats v. New Haven Unified School District (2020) 46 Cal.App.5th 415, 424 (“Coats”); Gov. Code § 905, subds. (m), (p).)

Article XVI, section 6 of the California Constitution (“the Anti-Gift Provision”) provides, in relevant part: “The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State, or of any county, city and county, city, township or other political corporation or subdivision of the State now existing, or that may be hereafter established, in aid of or to any person, association, or corporation, whether municipal or otherwise, or to pledge the credit thereof, in any manner whatever, for the payment of the 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 or thing of value to any individual, municipal or other corporation whatever… .” (Cal. Const., art. XVI, § 6.)

The District argues that the portion of AB 218 that retroactively exempts childhood sexual abuse claims from the Government Claims Act is unconstitutional with respect to public entities and constitutes an impermissible gift of public funds. Compliance with the Government Claims Act is a substantive prerequisite to stating a claim for money damages against a public entity. (See State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240-41.)

The test for “whether or not a proposed application of public funds is to be deemed a gift within the meaning [of the gift clause], … is … whether the money is to be used for a public or a private purpose.” (City of Oakland v. Garrison (1924) 194 Cal. 298, 302.) “The determination of what constitutes a public purpose is primarily a matter for the Legislature to determine, and its discretion will not be disturbed by the courts so long as that determination has a reasonable basis. [Citations.]” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 746.) Legislative findings are to be “given great weight and will be upheld unless they are found to be unreasonable and arbitrary. [Citations.]” (California Hous. Fin. Agency v. Elliot (1976) 17 Cal.3d 575, 583.)¿

Here, this court does not agree with the District that the effect of AB 218 in amending the Government Claims Act to add an exemption for claims of the type alleged herein constitutes a “gift of public money or thing of value” within the meaning of the Anti-Gift Provision of the Constitution. In Heron v. Riley (1930) 209 Cal. 509, 517, the California Supreme Court rejected the respondent’s argument “that the application of funds to pay judgments obtained against the state constitutes a gift of public money, within the prohibition of the Constitution.” The Court continued by explaining “[t]he judgments which are to be paid bear no semblance to gifts. They must first be obtained in courts of competent jurisdiction, to which the parties have submitted their claims in the manner directed by law. In other words, they are judgments obtained after the requirements of due process of law have been complied with.” (Id.)

Here, too, the “gifts” created by AB 218 can only be obtained if Plaintiff obtains a judgment against the District. In other words, AB 218 did not create an obligation on the part of a governmental agency to pay a claim without due process of law. This is not a gift of public funds. It is merely a mechanism in which an injured plaintiff may obtain a judgment of money against a public agency, by demonstrating he or she is legally entitled to same.

In this case, the alleged negligence is based on the District’s failure to protect Plaintiff from the abuse of one of the District’s employees. “Whether a complaint in fact asserts one or more causes of action for pleading purposes depends on whether it alleges invasion of one or more primary rights. ‘The primary rights theory is a theory of code pleading that has long been followed in California. It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.]’” (Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257-58.)

Whether framed as negligence or negligent hiring, retention, and supervision, the primary right and corresponding duty are the same. Thus, the negligent hiring claim is subject to demurrer, as it is duplicative of the general negligence claim and adds nothing to the FAC by way of fact or theory of recovery.

Accordingly, Defendant’s Demurrer to the Third Cause of Action is SUSTAINED, without leave to amend.

Finally, Defendant argues the action is barred by the applicable statute of limitations in CCP section 340.1. Under this section, “the time for commencement of [an action for childhood sexual assault] shall be within 22 years of the date the plaintiff attains the age of majority or within five 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 assault, whichever period expires later…”

Here, the alleged abuse occurred in “approximately 1983, when Plaintiff was approximately fourteen (14) years old.” (FAC ¶ 32.) This means Plaintiff would have turned 18 in 1987, and 40 in 2009. Thus, as of 2009, his lawsuit became time barred unless he can plead facts showing he filed this lawsuit within five years of discovering the psychological injury.

Plaintiff has not alleged these facts, but rather, asserts only generally that he “suffered and continues to suffer economic damages, and severe and permanent psychological, emotional, and physical injuries, shame, humiliation, and the inability to lead a normal life.” (Id. ¶ 91.) Without allegations showing when the phycological injuries were discovered, his claims are barred by the statute of limitations.

Accordingly, Defendant’s Demurrer to the First Cause of Action is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate at the hearing how he can amend his Complaint to demonstrate that he filed this lawsuit within five years of discovering the psychological injury.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.