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Court of Appeal:
Law Reviving Claims of Childhood Sexual Assaults Is Valid
Panel Rejects Contention That Enactment Entails Gift of Public Funds in Violation of State Constitution
By a MetNews Staff Writer
A 2019 enactment creating a window that opened on Jan. 1, 2020, and closed on Dec. 31, 2022 within which time-barred actions for sexual child abuse could be brought, without regard to the usual claim-presentation requirement for suits against governmental entities, does not violate the state constitutional ban on gifts of public moneys, Div. Five of the First District Court of Appeal has held.
Justice Mark B. Simons authored the opinion, filed yesterday, which denies a writ challenge by the West Contra Costa Unified School District to Contra Costa Superior Court Judge John P. Devine’s order overruling its demurrer.
In the course of the opinion, Simons rebuffed public policy arguments raised by the County of Los Angeles which contends that upholding the provisions of AB 218 could have devastating effects on its finances, crippling its efforts to serve the public.
The district—sued in December 2022 by a woman, “A.M.M.,” who claims to have been repeatedly sexually assaulted by a high school counselor between 1979 and 1983—relied upon Art. XVI, §6 of the California Constitution. That clause provides that the Legislature does not “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.”
In one of its briefs on appeal, the district asserted that the 2019 legislation, AB 218, “offers a ‘gift’ or ‘thing of value; in constitutional terms—it creates new liability for claims that were previously extinguished.”
Simons’s Opinion
Simons responded:
“[W]aiver of the claim presentation requirement did not constitute an expenditure of public funds that may be considered a ‘gift’ because AB 218 did not create new ‘substantive liability’…for the underlying alleged wrongful conduct. Instead, AB 218 simply waived a condition the state had imposed on its consent to suit.”
He elaborated that the Government Claims Act “itself makes clear that the District’s substantive liability existed when the alleged wrongful conduct occurred; timely presentation of a claim was a condition to waiver of government immunity, but it was not necessary to render the underlying conduct tortious.”
Noting that a governmental entity is statutorily liable for torts of employees, he wrote:
“Because a statute imposing liability on the District existed at the time of the sexual assaults, AB 218 imposes no new substantive liability….”
‘Public Purpose’
Simons went on the say:
“Even if we had ruled that AB 218 authorizes expenditures within the scope of the gift clause, the expenditures are not ‘gifts’ because they serve a public purpose.”
He noted that it has long been held that there is no proscribed gift of public funds for such an end. The public good was served by AB 218, Simons declared, based on “the Legislature’s purpose to aid the disadvantaged group of childhood sex assault victims.”
The district “does not dispute ‘the horrific damage and life-long trauma that can be caused by childhood sexual assault,’ ” as found by the Senate Committee on the Judiciary in its analysis of AB 218 “nor does the District deny that AB 218 was enacted to provide relief to such victims by providing an opportunity for them to obtain compensation from the private and public entities that employed their abusers, Simon wrote, remarking:
“[T]the public purpose underlying AB 218 is not fundamentally different from the public purpose involved in any of a number of other enactments providing assistance to other disadvantaged classes of persons.”
Public Policy Arguments
Twelve amicus curiae briefs were accepted by the appeals court, only two of which supported the plaintiff’s position. The brief filed by the County of Los Angeles says:
“AB 218 vastly changed the litigation landscape for every public entity in California with children in their custody or care. With over 2,000 cases (involving nearly 5,000 plaintiffs) pending against the County for alleged misconduct spanning a 70-year period, AB 218 cases present one of the County of Los Angeles’s most serious fiscal challenges in recent history. Projected liability may exceed $3 billion. While immense by any measure, to put that number in context, the County’s entire annual 2023-2024 operating budget for the Department of Children and Family Services (DCFS), which serves more than 2 million children and employs 9,931 people, is $3.29 billion.”
The brief, prepared by Nadia A. Sarkis of the Century City law firm of Miller Barondess, LLP, continues:
“The resolution of AB 218 cases will come directly from the County’s limited public fisc; there is unlikely to be any insurance coverage for these claims, certainly not for those that are decades-old. Individual lawsuits have already resulted in nine-figure jury verdicts against other public entities, which means the stakes for these lawsuits are incredibly high.
“At the same time, the passage of time makes these cases exceedingly difficult to assess, let alone defend. Plaintiffs typically fail to identify perpetrators by name. In most cases, the relevant juvenile records were destroyed decades ago under legislative mandate. Even in the rare cases when perpetrators can be identified, the alleged aggressors left the County’s employment years before, many are deceased, and personnel records no longer exist.”
The brief points out:
“After the passage of AB 218, plaintiffs’ law firms immediately sprung into action—canvasing radio, social media, and other public media channels with ads attracting putative plaintiffs. These efforts bore substantial returns—a handful of plaintiffs’ law firms represent more than 95 percent of plaintiffs bringing previously-barred claims arising from decades-old incidents against the County.”
Contentions Rejected
Simons was unpersuaded. He commented:
“The concerns raised by the District and amici curiae are legitimate considerations that would have been appropriate considerations for the Legislature in deciding whether to enact AB 218. Indeed, those concerns were considered by the Legislature.”
Acknowledging no fisci knowledge of the extent to which legislators mulled arguments against passage of AB 218, he said:
“[I]t is clear that opponents had both an opportunity and incentive to make their arguments to the Legislature. The District and amici curiae cite no authority that it is appropriate for this court to make complicated factual determinations regarding the conflicting policies debated in the Legislature about the effects of the legislation, or to balance the negative consequences on public finances with the positive benefits of giving relief to persons who were sexually assaulted by public employees when they were children.”
Simons quoted the district as representing that it “is not asking this Court to make any policy decisions in this case or to weigh in on whether AB 218 is a good law,” replying:
“Unfortunately, that is exactly what the District and amici curiae ask this court to do in arguing that the potential negative consequences of AB 218 outweigh its benefits.”
Due Process Contention
The district argued in one of its briefs on appeal:
“…AB 218 violates due process under the state and federal Constitutions. When no timely claim is presented, a plaintiff’s claim is extinguished and a limitation on liability arises that is effectively a vested right or form of immunity; resurrecting extinguished claims interferes with this immunity and violates due process.”
The plaintiff countered in a May 9 letter brief that “the argument fails at the outset as the District lacks standing to raise it.”
It pointed to the California Supreme Court’s 1986 decision in Star-Kist Foods, Inc v. County of Los Angeles where the high court cited “the well-established rule that subordinate political entities, as ‘creatures’ of the state, may not challenge state action as violating the entities’ rights under the due process or equal protection clauses of the Fourteenth Amendment or under the contract clause of the federal Constitution.”
Simons agreed with the plaintiff that the district lacks standing, observing that it “has no substantial answer to the rule articulated in Star–Kist and applied repeatedly since then.”
The case is West Contra Costa Unified School District v. Superior Court (A.M.M.), 2024 S.O.S. 2617.
Other Cases
Another case before the First District’s Div. Five raising an issue as to the applicability of the gift clause to AB 218 is Doe v. Acalanes Union High School District, A169013. That case is still in the briefing stage.
So is John Doe R.L. v. Merced City School District, involving the identical issue, pending before the Fifth District Court of Appeal.
Raymond Boucher, Shehnaz M. Bhujwala, and Amanda Walbrun of Boucher’s Woodland Hills firm and Holly N. Boyer of the Pasadena firm of Esner, Chang, Boyer & Murphy represented A.M.M. Boucher’s firm and Boyer are also acting for the plaintiffs in the appeals involving the Acalanes Union High School District and the Merced City School District.
Attorneys for the West Contra Costa Unified School District were David M. Axelrad and Peder K. Batalden of the Burbank appellate law firm of Horvitz & Levy LLP and Roy A. Combs, David R. Mishook, and Rami B. Noeil of the Carlsbad firm of Fagen Friedman & Fulfrost LLP.
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