A.M. v. Ventura Unified School District

Opinion

D.G., as guardian ad litem for her minor daughter, A.M. (appellant), sued the Ventura Unified School District (District), Michael Tapia, and Gwen Fields (collectively, respondents) for negligence. Appellant alleged, among other things, that respondents negligently allowed male students to sexually abuse her while at school. The trial court granted summary judgment for respondents, concluding that appellant failed to file the required government tort claim with the District.

Appellant concedes she did not file a tort claim, but asserts she was excused from doing so pursuant to Government Code section 905, subdivision (m), which exempts “[cjlaims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood

“We begin with the fundamental rule that our primary task is to determine the lawmakers’ intent” in enacting the relevant statute. (Delaney v. Superior Court (1990) 50 Cal.3d 785 , 798 [ 268 Cal.Rptr. 753 , 789 P.2d 934 ].) “In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citations.]” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 , 1386-1387 [ 241 Cal.Rptr. 67 , 743 P.2d 1323 ].)

B. Enactment of Government Code Section 905, Subdivision (m)

The Government Claims Act (Gov. Code, § 810 et seq.) requires that “[b]efore suing a public entity, the plaintiff must present a timely written claim for damages to the entity. [Citations.]” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201 , 208 [ 64 Cal.Rptr.3d 210 , 164 P.3d 630 ] (Shirk).) “A claim relating to a cause of action for . . . injury to person[s] . . . shall be presented ... not later than six months after the accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).) “Timely claim presentation is not merely a procedural requirement, but is ... ‘ “ ‘a condition precedent to plaintiff’s maintaining an action against defendant’ ” ’ [citations], and thus an element of the plaintiff’s cause of action. [Citation.]” (Shirk, at p. 209.) With certain exceptions, once a claim has been presented and rejected, a plaintiff has six months to file a lawsuit. (Gov. Code, § 945.6, subd. (a)(1).) These time periods are generally not tolled while the plaintiff is a minor. (Ed. Code, § 352, subd. (a); K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229 , 1238 [ 92 Cal.Rptr.3d 1 ]; County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263 , 1268-1269 [ 26 Cal.Rptr.3d 445 ].)

As discussed more fully below, section 340.1 “sets forth a special statute of limitations for victims of childhood sexual abuse.” (County of Los Angeles v. Superior Court, supra, 127 Cal.App.4th at p. 1268; see K.J. v. Arcadia Unified

In direct response to Shirk, the Legislature enacted Government Code section 905, subdivision (m), which eliminates the claim presentation requirement for “[c]laims made pursuant to Section 340.1 ... for the recovery of damages suffered as a result of childhood sexual abuse.” (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 640 (2007-2008 Reg. Sess.) as amended June 9, 2008, p. 3 [“This bill is intended to address the Shirk decision by expressly providing that childhood sexual abuse actions against public entities are exempted from government tort claims requirements and the six-month notice requirement”].) This exemption applies to claims arising out of conduct occurring on or after January 1, 2009. (Gov. Code, § 905, subd. (m); J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323 , 333, fn. 6 [ 181 Cal.Rptr.3d 286 ] [“Effective January 1, 2009, the government claim presentation requirement no longer applies to claims for childhood sexual abuse”]; accord, S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal.App.4th 712 , 721, fn. 6 [ 109 Cal.Rptr.3d 270 ].)

Appellant’s complaint alleges that, while she was a second grade student at a Ventura elementary school in 2012 and 2013, respondents negligently failed to supervise “the conduct of children on school grounds and to enforce the rules and regulations necessary to protect [her and other] students” from sexual abuse and that she suffered harm from such abuse. Appellant did not present a timely tort claim to the District, and the question before us is whether her action, which arose out of post-2008 conduct, is exempt from that requirement under Government Code section 905, subdivision (m). The answer lies in whether her sexual abuse claims fall within section 340.1.

C. Interpretation and Application of Section 340.1

Section 340.1 contains varying limitations periods for bringing actions for childhood sexual abuse against different groups of defendants. Subdivision (a) of section 340.1 provides that “[i]n an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three 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 abuse, whichever period expires

Notwithstanding this language, an action against third parties brought under section 340.1, subdivision (a)(2) and (3) must be brought before the plaintiffs 26th birthday. Section 340.1, subdivision (b)(1) expressly states: ‘“(1) No action described in paragraph (2) or (3) of subdivision (a) may be commenced on or after the plaintiffs 26th birthday.” But this subdivision is subject to an exception. Section 340.1, subdivision (b)(2) provides that the age cutoff in subdivision (b)(1) ‘“does not apply if the person or entity knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment.” (Italics added.)

1. Relevan t History of Amendm en ts to Section 340.1

As a general rule, a cause of action for childhood sexual abuse accrues at the time of molestation. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 , 443 [ 256 Cal.Rptr. 766 , 769 P.2d 948 ].) Prior to the enactment of section 340.1 in 1986, courts applied former section 340, which provided a one-year statute of limitations for child sexual abuse claims. Courts also applied section 352, subdivision (a), which tolled the running of the statute while the plaintiff was still a minor. (See former § 340, subd. (3).)

In 1986 the Legislature enacted section 340.1, which expanded the limitations period to three years for sexual abuse by a relative or household member of a child under 14 years of age. (Former § 340.1, added by Stats. 1986, ch. 914, § 1, pp. 3165-3166.) ‘“In 1990, the limitations period for actions against the actual perpetrator was extended in all cases to the later of three years from discovery that adult-onset psychological injury had been caused by the abuse, or the plaintiffs 26th birthday.” (Doe v. Doe 1 (2012) 208 Cal.App.4th 1185 , 1189 [ 146 Cal.Rptr.3d 215 ]; see Quarry v. Doe I (2012) 53 Cal.4th 945 , 963 [ 139 Cal.Rptr.3d 3 , 272 P.3d 977 ] (Quarry).)

2. Application of Section 340.1 to Appellant’s Claims

The trial court determined that by creating a subcategory of third party defendants to which the expanded statute of limitations applies, the Legislature meant to also limit third party claims arising out of section 340.1, subdivision (a)(2) to those in which an employee, volunteer, representative, or agent of the person or entity committed the alleged abuse. We do not read the statute’s language so broadly. All the Legislature did was eliminate “ ‘the age 26 cutoff as against a narrow category of third party defendants who had both the knowledge and the ability to protect against abusive behavior [by an employee, volunteer, representative, or agent], but failed to do so. Anyone discovering that childhood abuse was the cause of the injuries after 2003 could sue these—more culpable—defendants without regard to the age 26 cutoff.’ ” (Quarry, supra, 53 Cal.4th at p. 978, italics added.)

There is nothing to suggest that the Legislature intended to modify section 340.1, subdivision (a)(2) to limit “[a]n action for liability against any person or entity who owed a duty of care to the plaintiff’ to cases in which the alleged abuse was committed by an employee, volunteer, representative or agent of the person or entity. To the contrary, the statutory amendment simply clarified that claims against third parties under section 340.1, subdivision (a)(2) remain subject to the age 26 cutoff unless extended by section 340.1, subdivision (b)(2). (Quarry, supra, 53 Cal.4th at pp. 969, 988; accord, Dutra v.

Here, appellant is still a minor and therefore has no need to invoke the three-year revival provision in section 340.1, subdivision (b)(2). Her claims against respondents were timely filed under section 340.1, subdivision (a)(2) because they were discovered and brought before her 26th birthday. (See § 340.1, subds. (a)(2), (b)(1).) Although respondents argue that this statute of limitations does not apply to appellant’s sexual abuse claims, they provide no alternative statute of limitations for us to consider. Indeed, the trial court did not question section 340.l’s applicability to childhood sexual abuse claims brought against third parties. It just found, albeit incorrectly, that the claims must involve abuse by an employee, volunteer, representative or agent of the public entity for section 340.1, subdivision (a)(2) to apply.

Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910 [ 39 Cal.Rptr.3d 137 ] does not aid respondents’ position. The plaintiff in that case was 40 years old when she sued her parents for damage inflicted by her father’s sexual abuse. She claimed that because her parents were in business together, her father was her mother’s agent. (Id. at p. 923.) On that basis she argued that her case fell within section 340.1, subdivision (b)(2), thereby freeing her from the ban on suits against third parties by victims over age 26. The court disagreed, concluding the relationship was not an agency relationship within the meaning of section 340.1, subdivision (b)(2) and, consequently, the claim was properly dismissed as untimely. (Aaronoff, at p. 923.) As previously discussed, section 340.1, subdivision (b)(2) has no application here.

Nor are we persuaded by S.M. v. Los Angeles Unified School District, supra, 184 Cal.App.4th 712 , in which the court determined that the plaintiff’s cause of action accrued for purposes of the tort claim presentation requirement when she learned of the purported sexual abuse. (Id. at p. 721.) That decision is inapplicable because the alleged abuse predates the effective date of Government Code section 905, subdivision (m). As the court noted, ‘“[i]n apparent recognition of the dilemma faced by families of children abused by public school officials, the law has changed. For claims described in . . .

Respondents argue that even if the trial court did misconstrue the application of section 340.1 to appellant’s case, the summary judgment must be upheld for other reasons. First, they assert appellant failed to allege in her complaint that she was making claims pursuant to section 340.1 and that she may not make this allegation for the first time on a summary judgment motion. We are not persuaded. Section 340.1 is not a type of claim per se; it is a statute of limitations governing claims such as those raised by appellant’s complaint. (County of Los Angeles v. Superior Court, supra, 127 Cal.App.4th at p. 1268.) Appellant alleged facts showing that the limitations period in section 340.1, subdivision (a)(2) applies, and that was sufficient to raise the issue for purposes of the summary judgment motion. (See Pipitone v. Williams (2016) 244 Cal.App.4th 1437 , 1449 [ 198 Cal.Rptr.3d 900 ].)

Second, respondents contend appellant’s defense fails because appellant is not in the class of persons for whom section 340.1 was enacted. Specifically, they assert section 340.1 applies only to adult plaintiffs, and not minor plaintiffs. We recognize that the primary purpose of section 340.1 is to extend the statute of limitations for adults who discover they had been abused as children, but respondents cite no persuasive authority suggesting that section 340.1, subdivision (a)(2) does not apply to situations in which the abuse is discovered while the plaintiff is still a minor. (See Debbie Reynolds Prof. Rehearsal Studios v. Superior Court (1994) 25 Cal.App.4th 222 , 232 [ 30 Cal.Rptr.2d 514 ] [“The obvious goal of amended section 340.1 is to allow sexual abuse victims a longer time period in which to become aware of their psychological injuries and remain eligible to bring suit against their abusers”].) Although Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405 , 1419-1420 [ 21 Cal.Rptr.3d 208 ], noted that the limitations period for adult plaintiffs to file civil actions based on childhood sexual abuse is governed by section 340.1, it had no occasion to interpret that statute. Opinions are not authority for issues they do not consider and decide. (Stoll v. Shuff (1994) 22 Cal.App.4th 22 , 27 [ 27 Cal.Rptr.2d 249 ].)

Section 340.1 provides that, with certain exceptions not applicable here, an action against a third party for damages arising from childhood

Third, respondents maintain that acts alleged to have been committed by seven-year-old children do not fall within the definition of “ ‘[cjhildhood sexual abuse’ ” in section 340.1, subdivision (e). Subdivision (e) states: “ ‘Childhood sexual abuse’ as used in this section includes any act committed against the plaintiff that occurred when the plaintiff was under the age of 18 years and that would have been proscribed by Section 266j of the Penal Code; Section 285 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 286 of the Penal Code; subdivision (a) or (b) of Section 288 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision (c), of Section 288a of the Penal Code; subdivision (h), (i), or (j) of Section 289 of the Penal Code; section 647.6 of the Penal Code or any prior laws of this state of similar effect at the time the act was committed. Nothing in this subdivision limits the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged perpetrator of the abuse.” (§ 340.1, subd. (e).)

Appellant’s complaint alleges that between September 2012 and April 2013, appellant was sexually abused by two of her fellow students. A.R., a male student, touched her private parts, pinched her buttocks, hugged her and pressed himself against her, while another student exposed himself to her and also rubbed his private parts on her. These actions qualify as lewd and lascivious acts committed upon a child under the age of 14. (See Pen. Code, § 288, subd. (a).)

Respondents argue that these students are not legally responsible for these acts because Penal Code section 26 provides that a child under the age of 14 is not capable of committing a crime in the absence of clear proof that, at the time of committing the charged act, he or she knew its wrongfulness. Respondents did not, however, submit any evidence on this point. (§ 437c, subd. (p)(2).) Their motion for summary judgment was limited to issues concerning appellant’s failure to present a government tort claim. It is well established that when a ‘“new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or