Judge Salvatore Sirna, Case Number: 22PSCV03039, Date: 2023-10-26 Tentative Ruling

Defendant Baldwin Park Unified School District’s Demurrer to Plaintiff’s First Amended Complaint

Defendant Baldwin Park Unified School District’s Motion to Strike Treble Damages and Attorney’s Fees Allegations in the First Amended Complaint

Defendant Baldwin Park Unified School District’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.

Defendant Baldwin Park Unified School District’s Motion to Strike Treble Damages and Attorney’s Fees Allegations in the First Amended Complaint is GRANTED. Based on M.N.’s notice of non-opposition, the court strikes M.N.’s request for treble damages and attorney fees from the FAC.

BPUSD is ordered to file its answer to the FAC, with the request for treble damages and attorney fees striken, within twenty (20) days.

This action arises from the alleged sexual abuse of an elementary student by a fellow student. In the 1993-1994 school year, Plaintiff Jane Doe M.N. was a fifth-grade student attending Vineland Elementary School (Vineland) in the Baldwin Park Unified School District (BPUSD). During this time, M.N. alleges a fellow student sexually assaulted M.N. After M.N. reported the assault to M.N.’s father, M.N.’s father informed Vineland school officials. While the student was removed from M.N.’s class, M.N. alleges the student was not removed from Vineland. As a result, M.N. alleges the student still approached M.N. during recess and would sexually harass M.N. with unwanted physical contact and verbal abuse.

On July 28, 2023, M.N. filed a complaint against BPUSD, Vineland, and Does 3-50, alleging the following causes of action: (1) childhood sexual assault, (2) sexual battery, (3) intentional infliction of emotional distress (IIED), (4) negligence, and (5) negligent supervision/failure to warn.

On June 20, 2023, BPUSD filed a demurrer and motion to strike M.N.’s Complaint. On July 28, M.N. filed a First Amended Complaint (FAC) against the same defendants alleging a single cause of action for negligent supervision/failure to warn.

On September 28, 2023, BPUSD filed the present demurrer and motion to strike. Prior to filing, BPUSD’s counsel met and conferred telephonically with M.N.’s counsel and was unable to reach a resolution. (Knapp Decl., ¶ 12.)

A hearing on the demurrer and motion to strike is set for October 26, 2023, along with a case management conference.

M.N. requests judicial notice of trial court orders in other cases. The court finds M.N.’s request improper, and is denied since orders of other trial courts are neither precedent nor binding authority for this court. (See, B.F. v. Superior Court (2012) 207 Cal.App.4th 621, 627, fn. 2.)

BPUSD demurs to M.N.’s FAC on the grounds that AB 218 violates article 16, section 6 of the California Constitution. For the following reasons, the court OVERRULES BPUSD’s demurrer.

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, at p. 747.)

In 2019, the California Legislature passed AB 218 and it was signed into law. (Stats. 2019, ch. 861.) As relevant here, it amended Code of Civil Procedure section 340.1 to add a subdivision (q) which allows a childhood sexual assault claim that would have been time-barred as of January 1, 2020, to be brought within three years of January 1, 2020. (Stats. 2019, ch. 861, § 1.) AB 218 also amended Government Code section 905, subdivision (m), which excludes childhood sexual assault claims from notice of claim requirements, by removing language that made the statute only applicable “to claims arising out of conduct occurring on or after January 1, 2009” and making such changes retroactive. (Compare Stats. 2019, ch. 861, § 3, with Stats. 2012, ch. 776, § 2.)

BPUSD argues this amendment violates article 16, section 6 of the California Constitution[1] which provides in relevant 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 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 . . . .”

Our supreme court has consistently interpreted the gift clause to prevent the Legislature from retroactively creating liability for public agencies. In Bourn v. Hart (1892) 93 Cal. 321, the Legislature passed legislation that provided compensation for a state prison guard who had been previously injured. (Id., at p. 326.) The supreme court held the legislation violated the gift clause because the state was not liable for the guard’s injury “either upon general principles of law or by reason of some previous statute creating such liability” at the time of the injury. (Id., at p. 328.)

Since that case, the supreme court has held “[a]n appropriation of money by the legislature for the relief of one who has no legal claim therefor must be regarded as a gift” pursuant to the gift clause. (Conlin v. Board of Supervisors (1893) 99 Cal. 17, 21-22 (Conlin); see Chapman v. State (1894) 104 Cal. 690, 693 (Chapman) [holding gift clause denies Legislature “power to create a liability against the state for any such past act of negligence upon the part of its officers.”]; Powell v. Phelan (1903) 138 Cal. 271, 273-274 (Powell) [holding law appropriating money to jurors for past jury service was gift because they were not entitled to compensation at time they served]; Heron v. Riley (1930) 209 Cal. 507, 517 (Heron) [holding the Legislature cannot “create a liability against the state for any past acts of negligence on the part of its officers, agents or employees”]; see also Jordan v. California Dept. of Motor Vehicles (2002) 100 Cal.App.4th 431, 450, citing Conlin, supra, 99 Cal. At p. 21-22.)

Relying on these authorities, BPUSD argues AB 218 violates the gift clause because it imposes liability on public entities for past incidents where there was previously no liability. In opposition, M.N. argues the constitutionality of AB 218 was established in Coats v. New Haven Unified School District (2020) 46 Cal.App.5th 415. But in accusing BPUSD’s counsel of failing to address this case, M.N. failed to mention the case did not address whether AB 218 violated the gift clause. It instead addressed whether AB 218 violated the due process clauses and prohibitions on ex post facto laws in the United States and California constitutions. (Id., at p. 424.) The other authorities relied on by M.N. also fail to address whether AB 218 violates the gift clause. (Roman Catholic Bishop of Oakland v. Superior Court (2005) 128 Cal.App.4th 1155, 1161 [addressing constitutional prohibition on ex post facto laws]; Liebig v. Superior Court (1989) 209 Cal.App.3d 828, 830 [addressing whether Legislature could extend statute of limitations after expiration].)

This court, however, relies on authority which is directly on point. In Bickerdike v. State (1904) 144 Cal. 681 (Bickerdike), our supreme court addressed a similar issue and held the Legislature’s revival of claims against the state through changes to the statute of limitations did not violate the gift clause. (Id., at p. 692.) There, the Legislature had enacted a 1901 law that allowed claimants to bring an action against the state for unpaid bounties in connection with an 1891 law that allowed for the payment of bounties to those who killed coyotes. (Id., at p. 683-684.) In 1895, the 1891 law had been repealed and, at the time, the statute of limitations for claims against the state was only two years. (Id., at p. 684, 691-692.) In that case, because the 1901 law was more than two years after the 1891 law had been repealed in 1895, the state argued the 1901 law had essentially revived previously time-barred claims. (Id., at p. 691-692.) Like BPUSD, the state in that case argued the revival constituted a gift in violation of the gift clause. (Id., at p. 692.) But in rejecting this argument, the court stated the following:

“The statute of limitations does not, however, go to the substance of the right, but only to the remedy. When the statute has made the defense available to the debtor, his debt has not been extinguished. It still exists, and may be enforced against him unless he chooses to avail himself of the defense afforded by the statute and specially plead it. The payment of such a debt by the debtor is not a ‘gift,’ in any proper sense of the word, and there is nothing in the constitutional provision invoked that can be held to prohibit the legislature from paying these claims.” (Ibid.)

The court finds this analysis instructive and controlling here. Indeed, the above cited case law discussing the gift clause refers to the creation of liability for past acts rather than the modification of remedies for previously existing liabilities. Similarly, here, in amending Code of Civil Procedure section 340.1, AB 218 did not create new liability for childhood sexual assault but rather waived the applicable statute of limitations to revive time-barred claims.

With regards to claim presentation requirements, our supreme court has held they are “more than a procedural requirement” and are “an integral part of plaintiff’s cause of action” that must be satisfied before a cause of action can be maintained. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240, quoting Williams v. Horvath (1976) 16 Cal.3d 834, 842.) But while claim presentation requirements may be distinguished from statutes of limitations, the court finds changes to claim presentation requirements also do not violate the gift clause. In Chapman, our supreme court distinguished the creation of a remedy from the creation of a liability. There, the plaintiff brought an action against the state for negligence after a cargo of coal was lost during the collapse of a public wharf in San Francisco. (Chapman, supra, 104 Cal. at p. 692.) While plaintiff brought the action pursuant to an 1893 law that allowed negligence actions against the state, the state argued it was not liable for the accident which occurred before the passage of the 1893 law. (Id., at p. 693.)

In Chapman, our supreme court noted the 1893 law did not create liability for the state as the state was already liable pursuant to the principles of contract law. (Id., at p. 696.) Instead, the court held the 1893 law “merely gave an additional remedy for the enforcement of such liability.” (Ibid.) In holding so, the court quoted the following language from a New York case:

“The fact that the state is not subject to an action on behalf of a citizen does not establish that he has no claim against the state, or that no liability exists from the state to him. It only shows that he cannot enforce against the state his claim, and make it answer in a court of law for its liability. What is made out by this objection is not that there is no liability and no claim, but that there is no remedy.” (Ibid, quoting Coster v. City of Albany (N.Y. 1871) 43 N.Y. 399, 407-408.)

This distinction is well recognized in California as courts have held the state’s consent to suit is not a waiver of the state’s immunity from liability. (See, e.g., Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 811 [noting the court has “rejected the idea that the Legislature, by offering the state’s consent to suit, also intended to eliminate the state’s substantive immunity from liability.”]; People ex rel. Dept. of Parks and Recreation v. West-A-Rama, Inc. (1973) 35 Cal.App.3d 786, 794 [noting claim statutes are simply notice requirements and do not waive state’s sovereign immunity].)

In the authorities that BPUSD relied on, this distinction also appears. For example, in Bourn, our supreme court noted as follows:

“The exemption of the state from paying damages for accidents of this nature does not depend upon its immunity from being sued without its consent, but rests upon grounds of public policy which deny its liability for such damages. . . . The appropriation made to petitioner was a mere gratuitous assumption of an obligation from which the state was and is exempt, and is within the mischief which the framers of the constitution intended to remedy by the sections before referred to.” (Bourn, supra, 93 Cal. at p. 328.)

In other words, the court in Bourn distinguished between the state’s ability to consent to suit and the state’s immunity from liability for the type of injury suffered by plaintiff. Similarly in Conlin, the court noted that the Legislature’s attempt to provide a remedy for unpaid contracts was a gift because the legislation itself admitted the state had no legal obligation to pay plaintiff. (Conlin, supra, 99 Cal. at p. 22.) And in Powell, the court noted the state was under no legal obligation to pay jurors. (Powell, supra, 138 Cal. at p. 273-274.)

In the present case, AB 218 does not violate the gift clause by retroactively creating liabilities for BPUSD. Instead, such liability is created by Government Code section 820, subdivision (a), which states “[e]xcept as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” In retroactively adjusting claim presentation requirements and the applicable statute of limitations, AB 218 has merely expanded the remedies available to M.N. Thus, because AB 218 does not create liability for BPUSD and instead addresses the remedies available to M.N., it does not meet the definition of an unconstitutional gift that violates the California Constitution’s gift clause.

BPUSD moves to strike M.N.’s request for treble damages and attorney fees from the FAC. In response, M.N. filed a notice of non-opposition that agreed to withdraw such requests. Accordingly, the court summarily GRANTS BPUSD’s motion to strike.

Furthermore, BPUSD’s motion to strike portions of M.N.’s FAC is GRANTED. Based on M.N.’s notice of non-opposition, the court strikes M.N.’s request for treble damages and attorney fees from the FAC.

BPUSD is ordered to file its answer to the FAC, with the request for treble damages and attorney fees striken, within twenty (20) days.

[1] This provision is also known as the “gift clause” and the court will herein refer to it as such. (See State of California ex rel. State Lands Com. v. County of Orange (1982) 134 Cal.App.3d 20, 28.)