Judge Salvatore Sirna, Case Number: 22STCV10734, Date: 2023-11-22 Tentative Ruling

Defendant Bonita Unified School District’s Motion for Judgment on the Pleadings

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

This action arises from the alleged sexual abuse of a middle school student by school staff. From 1978 to 1979, Plaintiff T.C. was a student attending Ramona Middle School in La Verne which was operated and controlled by Defendant Bonita Unified School District (BUSD). During T.C.’s time at Ramona Middle School, T.C. alleges Roy Redifer, a history teacher employed by BUSD, sexually abused T.C. by groping T.C.’s genitals. T.C. also alleges BUSD was made aware of Redifer’s sexual abuse and failed to take any action to protect T.C.

On March 29, 2022, T.C. filed a complaint against Does 1-25, alleging the following causes of action: (1) negligence; (2) negligence; (3) negligent hiring, retention, and supervision; and (4) negligent hiring, retention, and supervision.

On June 3, 2022, T.C. filed a First Amended Complaint (FAC) against BUSD and Does 2-25, alleging the same causes of action.

On November 10, 2022, T.C. filed a Second Amended Complaint (SAC) against the same defendants alleging the same causes of action.

On October 26, 2023, BUSD filed the present motion. On November 22, the court continued the hearing on BUSD’s motion for parties to further meet and confer. On December 11, BUSD’s counsel telephonically met and conferred with T.C.’s counsel. (Tourkow Decl., ¶ 4.)

T.C.’s request for judicial notice of California State Assembly records is GRANTED pursuant to Evidence Code section 452, subdivision (c). But to the extent T.C. and BUSD both request judicial notice of trial court orders in other cases, those requests are DENIED as they are neither precedent nor binding authority for this court. (B.F. v. Superior Court (2012) 207 Cal.App.4th 621, 627, fn. 2.)

BUSD moves for judgment on the pleadings as to T.C.’s entire SAC on the grounds that AB 218 violates article 16, section 6 of the California Constitution. For the following reasons, the court DENIES BUSD’s motion.

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) “A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. [Citation.] The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice.” (Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 738.)

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.)

BUSD 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, BUSD argues AB 218 violates the gift clause because it imposes liability on public entities for past incidents where there was previously no liability. 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 in this case, the court finds changes to claim presentation requirements 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 BUSD 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 BUSD. 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, AB 218 has merely expanded the remedies available to T.C. Thus, because AB 218 does not create liability for BUSD and instead addresses the remedies available to T.C., it does not meet the definition of an unconstitutional gift that violates the California Constitution’s gift clause.

[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.)