Judge: Upinder S. Kalra, Case: 23STCV13750, Date: 2023-11-28 Tentative Ruling

Case Number: 23STCV13750    Hearing Date: November 28, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   November 28, 2023                                       

CASE NAME:           Jane A.V. Doe v. Los Angeles Unified School District, et al.

CASE NO.:                23STCV13750

DEMURRER TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE

MOVING PARTY:  Defendant Los Angeles Unified School District

RESPONDING PARTY(S): Plaintiff A. V. Doe

REQUESTED RELIEF:

1.       Demurrer to the entire First Amended Complaint for failure to state sufficient facts to constitute a cause of action.

2.       Motion to Strike portions of the FAC pertaining to treble/punitive damages.

TENTATIVE RULING:

1.      Demurrer to the FAC is OVERRULED in its entirety;

2.      Motion to Strike is GRANTED as follows:

a.       The court strikes: Prayer, Page 21: “c) Up to treble damages as against LAUSD pursuant to California Code of Civil Procedure § 240.1(A) AND 340.1(B)(1)(2).”

b.      The court strikes:  Page 20, line 27, “appropriate statutory penalties” as to LAUSD only.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 14, 2023, Plaintiff Jane A. V. Doe (Plaintiff) filed a Complaint against Defendants John Doe 1 and John Doe 2.

On July 19, 2023, Plaintiff filed a First Amended Complaint (FAC) changing the caption per court order to reflect Defendants Los Angeles Unified School District and Robert K. Carey. The FAC alleges four causes of action for (1) Negligence, (2) Negligent Supervision/Retention, (3) Sexual Battery, and (4) Sexual Harassment. According to the FAC, Plaintiff was a victim of childhood sexual assault and harassment by her swim coach, Defendant Carey, when she attended Los Angeles High School from 1982-1983. Plaintiff alleges that Defendant LAUSD knew or should have known of Defendant Carey’s conduct.

On September 8, 2023, Defendant Los Angeles Unified School District (LAUSD) filed the instant demurrer and motion to strike.

On September 21, 2023, the court transferred the matter from Department 38 to Department 51 and vacated all pending hearings, including the instant demurrer.

 On September 25, 2023, Plaintiff filed oppositions to the demurrer and motion to strike.

On November 1, 2023, LAUSD filed an amended notice of hearing on the demurrer and motion to strike. On November 3, 2023, Plaintiff filed oppositions. On November 16, 2023, LAUSD filed replies.

On November 20, 2023, Defendant Carey filed a reply to Plaintiff’s opposition to demurrer. However, Defendant Carey did not file a separate demurrer and has not indicated to the court that he joined Defendant LAUSD’s demurrer.

LEGAL STANDARD:

Meet and Confer

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). According to the Declaration of Joseph K. Miller, the parties met and conferred telephonically on August 29, 2023. (Miller Decl. ¶ 2.)

Demurrer

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.¿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. …. 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.)¿ 

Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., (CCP) § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id.¿§¿437.)¿“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman¿(1998) 63 Cal.App.4th 761, 768.)¿ 

Irrelevant matter includes: allegations not essential to the claim or defense, allegations “neither pertinent to nor supported by an otherwise sufficient claim or defense,” or a demand for judgment “requesting relief not supported by the allegations of the complaint or cross-complaint.” (CCP § 431.10(b).)  

ANALYSIS:

Demurrer

LAUSD contends that the California Legislature cannot pass a law attempting to impose liability on a public entity for a past occurrence where there is no enforceable claim as an unconstitutional gift of public funds, that Assembly Bill No. 218 (AB 218) purports to do so, Plaintiff did not have a viable claim against LAUSD prior to AB 218, and that Judicial Council Emergency Rule 9 did not apply.[1] Alternatively, LAUSD argues that Plaintiff’s action is time-barred under CCP § 340.1(a).[2] Plaintiff argues that LAUSD has failed to cite persuasive authority that AB 218 is unconstitutional, that Judicial Council Emergency Rule 9 is not inconsistent with AB 218, and  that Plaintiff’s claims fall within CCP § 340.1(q). LAUSD replies that Plaintiff did not address the constitutionality of AB 218, that AB 218 achieves no public purpose, that Judicial Council Emergency Order 9 could not extend the deadline for Plaintiff’s claim because the underlying statute purporting to extend it is unconstitutional, and that Plaintiff has not demonstrated that she can plead around these defects to warrant leave to amend.

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 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.) 

The Court does not agree with LAUSD 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.  As the California Supreme Court held in Heron v. Riley (1930) 209 Cal. 509, 517:

“We are not strongly impressed with the contention of the respondent 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 state cannot be subjected to suits against itself express by its express consent; but it may surrender its sovereignty in that particular.  The 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.”

Here, AB 218 did not create an obligation on the part of a governmental agency to pay a claim made by Plaintiff.  For Plaintiff to recover money from LAUSD, Plaintiff must first obtain a judgment in this case.  This would not be a gift of public funds. 

Based on the foregoing, the Court is not persuaded by LAUSD’s argument that the retroactive elimination of the claim presentation requirement for childhood sexual abuse claims that arose before 2009 in AB 218 is unconstitutional under the Anti-Gift Provision. 

Accordingly, the court OVERRULES LAUSD’s demurrer in its entirety.

Motion to Strike

LAUSD seeks to strike the following portions of the FAC:

1.      Prayer, Page 21: “c) Up to treble damages as against LAUSD pursuant to California Code of Civil Procedure § 240.1(A) AND 340.1(B)(1)(2).”

2.      Page 20, Lines 27-28: “PLAINTIFF also seeks appropriate statutory penalties and attorney’s fees pursuant to section 52 of the Civil Code.”[3]

LAUSD contends they are immune from treble and punitive damages under Gov. Code § 818. Plaintiff opposes the motion to strike to the extent it would strike such damages as to Defendant Carey.

CCP § 340.1(b)(1) provides for treble damages in cases where there is a “cover up” of childhood sexual assault.

Cal. Civ. Code § 52, the Unruh Civil Rights Act, provides for exemplary/punitive damages against “who[m]ever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6” or “who[m]ever denies the right provided by Section 51.7 or 51.9 . . . . “ (Cal. Civ. Code § 52(a) and (b).) It requires proof of intentional race discrimination. (See, e.g., Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640.)

Gov. Code § 818 provides: “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” It “immunizes public entities from damages” that “function, in essence, as an award of punitive or exemplary damages.” (Los Angeles Unified School Dist. v. Superior Court (2023) 14 Cal.5th 758, 775.) Courts frequently characterize treble damages as exemplary or punitive. (Id. at p. 778.) And, while that alone is not determinative, the Supreme Court has identified treble damages pursuant to CCP § 340.1(b)(1) as functionally punitive or exemplary. (Id. at p. 780.)

The court agrees with LAUSD that it is immune from treble and punitive damages under

Gov. Code § 818. Plaintiff’s request for treble damages is limited to LAUSD and it is the only time treble damages is mentioned in the FAC.[4] (FAC, Prayer, item (c).) Along those same lines, Plaintiff’s request for “statutory damages” under Cal. Civ. Code § 52 also impermissibly seek punitive or exemplary damages against LAUSD.[5]

Accordingly, the court GRANTS the motion to strike.

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

3.      Demurrer to the FAC is OVERRULED in its entirety;

4.      Motion to Strike is GRANTED as follows:

a.       The court strikes: Prayer, Page 21: “c) Up to treble damages as against LAUSD pursuant to California Code of Civil Procedure § 240.1(A) AND 340.1(B)(1)(2).”

b.      The court strikes:  Page 20, line 27, “appropriate statutory penalties” as to LAUSD only.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             November 28, 2023                __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court