The opinion
Filed 7/31/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
WEST CONTRA COSTA UNIFIED
SCHOOL DISTRICT,
Petitioner,
v. A169314
THE SUPERIOR COURT OF
CONTRA COSTA COUNTY, (Contra Costa County
Super. Ct. No. C22-02774)
Respondent;
A.M.M.,
Real Party in Interest.
In 2019 the Legislature enacted Assembly Bill No. 218 (2019–2020 Reg.
Sess.) (Stats. 2019, ch. 861, § 1) (AB 218), which provided a three-year
window within which plaintiffs were permitted to bring childhood sexual
assault claims against public entities that would otherwise be barred because
of statutes of limitations or claim presentation requirements. Plaintiff and
real party in interest A.M.M. (Plaintiff) subsequently relied on the enactment
to file a complaint against defendant and petitioner West Contra Costa
Unified School District (District) alleging she was the victim of sexual
assaults by a District employee that began when she was 14 years old in 1979
and lasted until 1983.
The District demurred, arguing that reviving a claim that was formerly
barred for failure to satisfy the claim presentation requirement would
1
constitute an unconstitutional gift of public funds, in violation of article XVI,
section 6 of the California Constitution (the “gift clause”). The trial court
overruled the demurrer, the District sought writ review, and this court issued
an order to show cause. Before this court, the District also contends AB 218
violates its right to due process under both the federal and California
Constitutions. We reject the District’s contentions.
BACKGROUND
Plaintiff alleges she was repeatedly sexually assaulted by her counselor
at Richmond High School, within the District, between 1979 and 1983.
Plaintiff further alleges that District employees were aware of the counselor’s
conduct. In December 2022, Plaintiff filed her initial complaint, and in June
2023 she filed a second amended complaint asserting eight causes of action:
(1) child sexual abuse; (2) sexual battery; (3) intentional infliction of
emotional distress; (4) negligence; (5) negligence per se; (6) negligent hiring,
retention, and supervision of an unfit employee; (7) negligent supervision of a
minor; and (8) negligent failure to warn, train, or educate. The complaint
states the action was brought pursuant to AB 218 and that the action is not
barred due to any failure to present a claim to the District.
In August 2023, the District filed a demurrer on the ground that the
gift clause prohibited the Legislature from retroactively reviving Plaintiff’s
claims, as well as on other grounds. In October, the trial court sustained the
demurrer to the first three causes of action with leave to amend, but
overruled the demurrer to the extent it was based on the gift clause.1
In December 2023, the District filed a petition in this court seeking
issuance of a writ of mandate directing respondent Superior Court of Contra
1 The trial court’s order sustaining the demurrer as to the first three
causes of action is not at issue in the present proceeding.
2
Costa County to sustain the demurrer in its entirety. In February 2024, this
court issued an order to show cause, Plaintiff filed a return, and the District
filed a reply.2 This court also permitted Plaintiff to file a letter brief in
response to a new state due process argument asserted by the District in its
reply. Finally, this court granted requests by various entities to file 12
amicus curiae briefs, and Plaintiff and the District filed responses to the
briefs.3
2 This court granted the parties’ requests for judicial notice of the
legislative history of AB 218 and of superior court orders addressing AB 218
in other matters.
3 Amicus curiae briefs in support of Plaintiff were filed by (1) Consumer
Attorneys of California and (2) Public Justice, Child USA, Equal Rights
Advocates, and National Center for Victims of Crime. Amicus curiae briefs in
support of the District were filed by (1) Schools Association for Excess Risk,
Northern California Regional Liability Excess Fund, Southern California
Regional Liability Excess Fund, and Statewide Association of Community
Colleges; (2) California School Boards Association and its Education Legal
Alliance; (3) Montecito Union School District and Carpinteria Unified School
District; (4) Schools Excess Liability Fund, California Association of Joint
Powers Authorities, and Public Risk Innovations, Solutions, and
Management; (5) Alliance of Schools for Cooperative Insurance Programs; (6)
California Association of School Business Officials; (7) Schools Insurance
Authority; (8) County of Los Angeles; (9) Compton Unified School District;
and (10) East Side Union High School District, San Mateo Union High School
District, Santa Clara Unified School District, Oakland Unified School
District, Los Gatos-Saratoga Union High School District, Oak Grove School
District, and Berryessa Union School District.
3
DISCUSSION
I. Legal Background
A. The Claim Presentation Requirement
Actions against a public entity “for recovery of damages suffered as a
result of childhood sexual assault” (Code Civ. Proc., §§ 340.1, 340.11)4 are
subject to the Government Claims Act (Gov. Code, § 905 et seq.) (GCA). The
California Supreme Court has “described ‘the intent that illuminates section
340.1 as a whole’ as an aim ‘to expand the ability of victims of childhood
sexual abuse to hold to account individuals and entities responsible for their
injuries.’ ” (Los Angeles Unified Sch. Dist. v. Superior Ct. (2023) 14 Cal.5th
758, 777 (Los Angeles Unified).) The Court explained, “Since its original
enactment in 1986 [citation], the statute has been amended on multiple
occasions to extend the filing periods for claims alleging childhood sexual
assault and revive otherwise time-barred claims. [¶] One such amendment
occurred through the enactment of [AB 218] in 2019. [Citation.] This
revision made several changes to []section 340.1. Among these adjustments,
[AB 218] extended the time for filing claims for childhood sexual assault
([]§ 340.1, subds. (a), (c)) and created a revival window for lapsed claims (id.,
subd. (q)), which included relief from the claim presentation deadlines within
the [GCA].” (Ibid.)
4 All undesignated statutory references are to the Code of Civil
Procedure. Effective January 1, 2024, the Legislature enacted section 340.11,
which now governs claims for childhood sexual assault that occurred before
January 1, 2024. (Stats. 2023, ch. 877 (S.B. 558), § 1, eff. Jan. 1, 2024.) The
revival provision at issue in the present case is currently located in section
340.11, subdivision (q). The current version of section 340.1 applies to any
claim in which the childhood sexual assault occurred on or after January 1,
2024. (§ 340.1, subd. (p).) Nevertheless, the discussion of section 340.1 in the
caselaw is also relevant to section 340.11.
4
In particular, AB 218, which took effect January 1, 2020, revived claims
for childhood sexual abuse, regardless of when the sexual abuse allegedly
took place, for a three-year period that expired December 31, 2022. (Former
§ 340.1, subd. (q).) The statute expressly revived claims “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.”
(Ibid., emphasis added; see also Coats v. New Haven Unified Sch. Dist. (2020)
46 Cal.App.5th 415, 424 (Coats).) Prior to the enactment of AB 218, former
Government Code section 905, subdivision (m), exempted from the claim
presentation requirement “[c]laims made pursuant to Section 340.1 . . . for
the recovery of damages suffered as a result of childhood sexual abuse” with
one significant limitation: “[t]his subdivision shall apply only to claims
arising out of conduct occurring on or after January 1, 2009.” AB 218
removed that limitation, so Government Code section 905, subdivision (m)
exempts all claims based on childhood sexual assault from the claim
presentation requirement. (See Coats, at p. 424.)
The District challenges this retroactive, statutory waiver of the claim
presentation requirement. “For many decades before” the 1963 enactment of
the GCA, “tort liability for public entity defendants was barred by a common
law rule of governmental immunity.” (Quigley v. Garden Valley Fire Prot.
Dist. (2019) 7 Cal.5th 798, 803 (Quigley).) The GCA “sets forth the general
rule of immunity for public entities,” “ ‘abolish[ing] all common law or
judicially declared forms of liability for public entities, except for such
liability as may be required by the state or federal constitution,’ ” or “ ‘if a
statute . . . is found declaring them to be liable.’ ” (County of Santa Clara v.
Superior Court (2023) 14 Cal.5th 1034, 1045.) Thus, the GCA “is a
5
comprehensive statutory scheme governing the liabilities and immunities of
public entities and public employees for torts.” (Quigley, at p. 803.)
Pursuant to the claim presentation requirement, “[b]efore suing a
public entity, the plaintiff must present a timely written claim for damages to
the entity.” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208
(Shirk).) During the 1979–1983 timeframe at issue in the present case, “a
claim relating to a cause of action for ‘injury to person’ had to be presented to
a government entity ‘not later than the 100th day after the accrual of the
cause of action.’ ” (Ibid., emphasis added.) “Accrual of the cause of action for
purposes of the government claims statute is the date of accrual that would
pertain under the statute of limitations applicable to a dispute between
private litigants.” (Id. at pp. 208–209; accord, Willis v. City of Carlsbad
(2020) 48 Cal.App.5th 1104, 1118.)
The California Supreme Court has explained the purposes of the claim
presentation requirement as follows: “ ‘Requiring a person allegedly harmed
by a public entity to first present a claim to the entity, before seeking redress
in court, affords the entity an opportunity to promptly remedy the condition
giving rise to the injury, thus minimizing the risk of similar harm to others.
[Citations.] The requisite timely claim presentation before commencing a
lawsuit also permits the public entity to investigate while tangible evidence
is still available, memories are fresh, and witnesses can be located.
[Citations.] Fresh notice of a claim permits early assessment by the public
entity, allows its governing board to settle meritorious disputes without
incurring the added cost of litigation, and gives it time to engage in
appropriate budgetary planning. [Citations.] The notice requirement under
the government claims statute thus is based on a recognition of the special
status of public entities, according them greater protections than nonpublic
6
entity defendants, because unlike nonpublic defendants, public entities
whose acts or omissions are alleged to have caused harm will incur costs that
must ultimately be borne by the taxpayers.’ ” (Rubenstein v. Doe No. 1 (2017)
3 Cal.5th 903, 907–908 (Rubenstein).)
B. The Prohibition on Gifts of Public Funds
The District contends that AB 218’s retroactive waiver of the claim
presentation requirement constitutes an unconstitutional gift of public funds.
The gift clause declares, in relevant part, that “The Legislature shall have no
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.)5 The gift clause denies “to the
legislature the right to make direct appropriations to individuals from
general considerations of charity or gratitude, or because of some supposed
moral obligation resting upon the people of the state . . . . It was because of
abuses which had crept into legislation by reason of the unlimited power
theretofore exercised by the legislature in determining what individual
claims should be recognized by private statute, and to relieve in some degree
legislators from the importunities of persons interested in securing such
appropriations, that the power of the legislature was thus limited by the
present constitution of this state.” (Stevenson v. Colgan (1891) 91 Cal. 649,
651.)
The word “gift” as used in the gift clause is not limited to transfers of
personal property, “ ‘but includes all appropriations of public money for which
there is no authority or enforceable claim,’ ” or which are grounded on mere
5 The prohibition on gifts was previously contained in article IV, section
31, of the California Constitution. (See Conlin v. Bd. of Sup’rs of City & Cnty.
of San Francisco (1893) 99 Cal. 17, 21 (Conlin).)
7
moral or equitable obligations. (Westly v. U.S. Bancorp (2003)
114 Cal.App.4th 577, 582; see also Conlin, supra, 99 Cal. at pp. 21–22.)6
However, a “gift” of public funds is not unconstitutional if “it is to be used for
a public rather than a private purpose. . . . That is because ‘[t]he benefit to
the state from an expenditure for a “public purpose” is in the nature of
consideration and the funds expended are therefore not a gift even though
private persons are benefited there from.’ ” (Westly, at p. 583; see also Los
Angeles County v. La Fuente (1942) 20 Cal.2d 870, 876–877 (La Fuente) [“If
6 We observe that other states’ high courts have ruled differently,
concluding that appropriating public funds to satisfy a moral obligation not
previously recognized in law is not improper. (Compare Veterans’ Welfare Bd.
v. Riley (1922) 189 Cal. 159, 170 [“Our own decisions consistently hold that
an appropriation of public funds based upon a moral obligation as a
consideration is a gift within the meaning of the Constitution.”] with, e.g.,
Ruotolo v. State (1994) 83 N.Y.2d 248, 259 [“If the waiver of immunity from
liability imposed by the Legislature rests on an adequate moral obligation,
then the bypass does not offend the no-gift prohibition.”]; Koike v. Bd. of
Water Supply, City & Cnty. of Honolulu (1960) 44 Haw. 100, 105 [“The
essence of a moral obligation is that it arises out of a state of facts appealing
to a universal sense of justice and fairness, though, upon such facts no legally
enforceable claim can be based.”]; State v. Clausen (1921) 113 Wash. 570, 573
[“if there is a moral and honorable claim upon the public treasury, although
there be no debt which could obtain recognition in a court of law or equity, a
basis for the exercise of the taxing power is furnished”]; see also Mills v.
Stewart (1926) 76 Mont. 429, 247 P. 332, 335 [“We are unable to appreciate
the distinction drawn by the California court between a claim of this
character founded upon a statute enacted prior to the time the injury
occurred and a claim predicated upon a statute enacted after the injury.”];
People v. Standard Acc. Ins. Co. (1941) 42 Cal.App.2d 409, 413–414
(Standard) [“California has been placed with the minority in the application
of the constitutional provision as to claims arising out of past transactions
and based upon moral obligations.”]; 63C AmJur.2d (2024) Public Funds § 58
[“the right of the state to appropriate public funds in discharge of the state’s
duty, whether the duty is legal or only moral, is recognized in some
jurisdictions but not in others”].)
8
the money is for a public purpose, the appropriation is not a gift even though
private persons are benefited by the expenditure.”]; Sturgeon v. County of Los
Angeles (2008) 167 Cal.App.4th 630, 637 [“By its terms, article XVI, section 6
of the state Constitution prevents the Legislature from making or
authorizing any gift of public funds for private purposes.”].)
“The determination of what constitutes a public purpose is primarily a
matter for the Legislature, and its discretion will not be disturbed by the
courts so long as that determination has a reasonable basis.” (Cnty. of
Alameda v. Carleson (1971) 5 Cal.3d 730, 746 (Carleson).) Where the
Legislature makes findings, they are “given great weight and will be upheld
unless found to be unreasonable and arbitrary.” (California Hous. Fin.
Agency v. Elliott (1976) 17 Cal.3d 575, 583 (Elliott).) But “[t]he failure to
explicitly state a public purpose is not decisive. The courts may infer the
public purpose from other legislation or the manner in which the legislation
is enacted.” (Scott v. State Bd. of Equalization (1996) 50 Cal.App.4th 1597,
1604 (Scott).)
II. AB 218’s Retroactive Waiver Is Not A Gift of Public Funds
The District contends AB 218’s waiver of the claim presentation
requirement is a gift of public funds, insofar as the statute retroactively
removes the requirement for claims that accrued before 2009.7 In this Part,
we reject this argument, without regard to the question of public purpose (see
Part III, post). As we explain, waiver 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” (Quigley,
7 As noted previously, prior legislation had prospectively removed the
claim presentation requirement for claims that accrued on or after January 1,
2009, but AB 218 removed the requirement retroactively as to all claims, no
matter when they accrued.
9
supra, 7 Cal.5th at p. 813) for the underlying alleged wrongful conduct.
Instead, AB 218 simply waived a condition the state had imposed on its
consent to suit. (Quigley, at pp. 811–813; Chapman v. State (1894) 104 Cal.
690, 697 (Chapman).)
A. The Chapman Decision
Chapman, supra, 104 Cal. 690, is the appropriate lens through which
to evaluate the District’s gift clause claim. In that case, a state-operated
wharf collapsed, allegedly due to the state’s negligence, and coal stored on the
wharf was lost. (Id. at p. 692.) At the time of the loss, such a claim could
only be presented to the state board of examiners; the plaintiff did so and the
board rejected the claim. (Ibid.) Subsequently, the plaintiff brought suit
under a statute enacted after the loss, providing that persons who have
contract or negligence claims “ ‘against the state, not allowed by the state
board of examiners, are hereby authorized, on the terms and conditions
herein contained, to bring suit thereon against the state in any of the courts
of this state of competent jurisdiction, and prosecute the same to final
judgment.’ ” (Id. at p. 693.) The trial court sustained a demurrer to the
complaint, and on appeal the state argued “that at the time when the coal
belonging to the assignors of the plaintiff was lost, the state was not liable for
the damage occasioned by said loss . . . and that the act should not be
construed as intended to create any liability against the state for such past
negligence.” (Ibid.) The state relied on the principle that “in the absence of a
statute voluntarily assuming such liability, the state is not liable in damages
for the negligent acts of its officers while engaged in discharging ordinary
official duties pertaining to the administration of the government of the
state,” and no such statute existed at the time of the loss. (Ibid.)
10
The Chapman court acknowledged that it would violate the gift clause
for the Legislature to retroactively authorize an action based on negligence,
because “the [L]egislature has no power to create a liability against the state
for any such past act of negligence upon the part of its officers.” (Chapman,
supra, 104 Cal. at p. 693.)8 However, the Court concluded the plaintiff’s
action was actually founded upon breach of contract, because the state, in
consideration of wharfage paid to it, was contractually obligated to exercise
ordinary care in preserving the property entrusted to it. (Id. at pp. 694–695.)
And, critically, although the state was not liable for its negligence at the time
of the loss, the state was at the time liable under contract, because “a state is
bound by the same rules as an individual in measuring its liability on a
contract.” (Id. at p. 694.)
The Court explained, “the liability of the state accrued at the time of its
breach; that is, when the coal was lost through the negligence of the officers
in charge of the state’s wharf, although there was then no law giving to the
plaintiff’s assignors the right to sue the state therefor. At that time the only
remedy given the citizen to enforce the contract liabilities of the state, was to
present the claim arising thereon to the state board of examiners for
allowance, or to appeal to the legislature for an appropriation to pay the
8 As Plaintiff points out, most decisions applying the gift clause involve
specific appropriations. (See, e.g., Conlin, supra, 99 Cal. 17 [disapproving
appropriation to individual for road improvements where there was no
contractual liability]; Bourn v. Hart (1892) 93 Cal. 321 [disapproving
appropriation for state employee injured due to negligence of superior];
Standard, supra, 42 Cal.App.2d at p. 414 [approving payment of insurance
premiums to protect state officers against potential liabilities]; Alameda
Cnty. v. Chambers (1917) 35 Cal.App. 537 [disapproving legislative
appropriation to pay the claims of various persons for losses due to a fire].)
But Chapman clarifies that providing an opportunity for a plaintiff to assert
a claim based on newly created liability can also constitute a gift.
11
same; but the right to sue the state has since been given . . . and in so far as
that act gives the right to sue the state upon its contracts, the legislature did
not create any liability or cause of action against the state where none existed
before. The state was always liable upon its contracts, and the act just
referred to merely gave an additional remedy for the enforcement of such
liability, and it is not, even as applied to prior contracts, in conflict with any
provision of the constitution.” (Chapman, supra, 104 Cal. at p. 696, emphasis
added.) The Court emphasized, “ ‘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.)
Thus, with respect to the gift clause, Chapman focused on whether the
underlying conduct for which the Legislature provided a right to sue was
conduct for which the state was liable at the time it occurred. (See also Heron
v. Riley (1930) 209 Cal. 507, 517 [“The legislature has not attempted to create
a liability against the state for any past acts of negligence on the part of its
officers, agents or employees—something it could not do, and the doing of
which would, in effect, be the making of a gift”].) Notably, the board of
examiners presentation requirement in Chapman was perfectly analogous to
the claim presentation requirement at issue in the present case: as explained
by that Court, the challenged act providing the plaintiff a right to bring suit
“contemplates that claims against the state shall first be presented to the
state board of examiners for allowance, and . . . it is only on claims so
presented, and ‘not allowed by the state board of examiners,’ that the state
gives its consent to be sued.” (Chapman, supra, 104 Cal. at p. 697.) Unlike
12
the present case, Chapman did not involve the waiver of that requirement,
because the plaintiff had presented its claim to the board. Nevertheless, and
critically, the Chapman decision not only concluded there is no gift clause
violation if liability existed when the alleged misconduct occurred, but the
decision also did not view satisfaction of the claim presentation requirement
as an aspect of the relevant underlying liability. Instead, “the liability of the
state accrued at the time of its [contractual] breach.” (Id. at p. 696.) As
explained below, this liability has been referred to as the state’s “substantive
liability.” (Quigley, supra, 7 Cal.5th at p. 813.)
B. The Claim Presentation Requirement is Not Part of the District’s
Substantive Liability
Under the GCA, the claims presentation requirement is not part of the
District’s substantive liability, so retroactive waiver of the requirement does
not “create any liability or cause of action against the state where none
existed before.” (Chapman, supra, 104 Cal. at p. 696.)
Government Code section 905.8 states, “Nothing in this part imposes
liability upon a public entity unless such liability otherwise exists.”9 The
associated California Law Revision Commission comment explains that this
section “makes clear that the claims presentation provisions do not impose
substantive liability; some other statute must be found that imposes
liability.” (4 Cal. Law Revision Com. Rep. (1963) p. 1001, 1028; see Gormley
v. Gonzalez (2022) 84 Cal.App.5th 72, 80 (Gormley) [“it is proper to look to
comments by the Commission, which are persuasive evidence of the intent of
the Legislature in enacting the Commission’s recommendations”].) Thus the
question of the District’s “substantive liability” is determined by reference to
9 The section is in Part 3, “Claims Against Public Entities,”
Government Code section 900, et seq.
13
statutes outside the claim presentation requirement. At the time of the
alleged sexual misconduct (and today), Government Code section 820,
subdivision (a) provided that “a public employee is liable for injury caused by
his act or omission to the same extent as a private person,” and Government
Code section 815.2, subdivision (a) provided that “A public entity is liable for
injury proximately caused by an act or omission of an employee of the public
entity within the scope of his employment if the act or omission would, apart
from this section, have given rise to a cause of action against that employee
or his personal representative.” (See also Dailey v. Los Angeles Unified Sch.
Dist. (1970) 2 Cal.3d 741, 747 [“Under section 815.2, subdivision (a) of the
Government Code, a school district is vicariously liable for injuries
proximately caused by . . . negligence.”]; accord, C.A. v. William S. Hart
Union High Sch. Dist. (2012) 53 Cal.4th 861, 865–866.) The District does not
dispute that those statutes impose liability for the type of conduct alleged in
the present case.
The California Supreme Court’s decision in Quigley, supra, 7 Cal.5th
798, is also instructive. In that case the Court addressed, in the context of
the GCA, the distinction between “questions of substantive liability” and “the
separate question whether public entities are amenable to suit in state
courts.” (Id. at p. 813.) The case involved Government Code section 850.4,
which bars public entity liability for injuries “resulting from the condition of
fire protection or firefighting equipment or facilities.” The issue in the case
was “whether this immunity provision constitutes an affirmative defense that
may be forfeited if not timely raised or instead serves as a limitation on the
fundamental jurisdiction of the courts, such that the issue can never be
forfeited or waived.” (Id. at p. 802.) The Court held the provision was an
affirmative defense, because “California law has long distinguished between
14
limitations on the substantive liability of public entities, on the one hand,
and limitations on the power of the courts to hear cases involving public
entities, on the other.” (Id. at p. 811.) Quigley emphasized the distinction
between the state’s “substantive liability” for alleged wrongdoing and the
state’s “consent to suit”—there, to support a conclusion that the immunity
provision did not create a “jurisdictional bar” to suit. (Id. at pp. 811–813.) As
relevant in the present case, it is clear the claim presentation requirement is
a condition on the state’s consent to suit, and not an aspect of the state’s
substantive liability.
The District’s only response on this point is to assert that “[l]iability
against a public entity cannot exist independent of the claim presentation
requirement.” It is true, of course, that the GCA governs “the liabilities and
immunities of public entities and public employees for torts.” (Quigley,
supra, 7 Cal.5th at p. 803.) But, although the District appears to argue
compliance with the claims presentation requirement is an aspect of its
substantive liability, the District fails to explain how that aligns with the
Law Review Commission’s unambiguous statement that “the claims
presentation provisions do not impose substantive liability.” (4 Cal. Law
Revision Com. Rep. (1963) pp. 1001, 1028.)
Accordingly, the GCA 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. Because
a statute imposing liability on the District existed at the time of the sexual
assaults, AB 218 imposes no new substantive liability under Chapman’s gift
clause analysis.
15
C. The Shirk and Bickerdike Cases Do Not Compel a Different
Result
The District concedes that “statutes of limitations may be extended by
the Legislature without violating the constitution—those statutes provide
only new remedies.” (See Bickerdike v. State (1904) 144 Cal. 681, 692
(Bickerdike) [waiver of statute of limitations defense does not violate gift
clause]; accord, Mitchell v. Cnty. Sanitation Dist. No. One of Los Angeles
Cnty. (1957) 150 Cal.App.2d 366, 372.) But the District contends that
“critical differences between statutes of limitations and the claim
presentation requirement” mandate differing results under the gift clause.
Although we agree that the claim presentation requirement and the statutes
of limitations are distinct, the District has not shown the differences are
material for purposes of the gift clause.10
The District relies principally on the characterization of the claim
presentation requirement in Shirk, supra, 42 Cal.4th 201. The Shirk Court
undertook a straightforward analysis of the plain language of a 2002
statutory amendment to section 340.1 that revived claims barred “solely” by a
statute of limitations (id. at p. 211) and determined it was not “intended to
apply to the . . . claim presentation deadline.” (Id. at p. 212.) “[T]he
government claim presentation deadline is not a statute of limitations. Had
10 Plaintiff relies on Coats, supra, 46 Cal.App.5th 415, which also
involved a challenge to AB 218, but the school district there argued
retroactive application of the amendments would violate “ ‘the constitutional
prohibition against ex post facto laws.’ ” (Id. at p. 424.) The court referenced
prior decisions upholding revival of claims barred by the statutes of
limitations and observed, “The present case, of course, involves revival of a
cause of action barred by a claim presentation requirement, not a statute of
limitations. But we are aware of no reason the Legislature should be any less
able to revive claims in this context . . . .” (Id. at pp. 426–428.) Because
Coats did not address the gift clause, it is not decisive in the present analysis.
16
the Legislature intended to also revive in subdivision (c) the claim
presentation deadline under the government claims statute, it could have
easily said so. It did not.” (Id. at p. 213; accord, Rubenstein, supra, 3 Cal.5th
at p. 907.)11
In declining to construe the statutory reference to “the applicable
statute of limitations” to encompass the claim presentation requirement,
Shirk went on to observe that “timely claim presentation is not merely a
procedural requirement, but is . . . ‘ “ ‘a condition precedent to plaintiff’s
maintaining an action against defendant’ ” ’ [citation], and thus an element of
the plaintiff’s cause of action. [Citation.] Complaints that do not allege facts
demonstrating either that a claim was timely presented or that compliance
with the claims statute is excused are subject to a general demurrer for not
stating facts sufficient to constitute a cause of action.” (Shirk, supra,
42 Cal.4th at p. 209; accord, DiCampli-Mintz v. Cnty. of Santa Clara (2012)
55 Cal.4th 983, 990; see also State of California v. Superior Ct. (2004)
32 Cal.4th 1234, 1240–1243.)
In comparison, “ ‘ “[s]tatute of limitations” is the collective term applied
to acts or parts of acts that prescribe the periods beyond which a plaintiff
may not bring a cause of action.’ ” (Shirk, supra, 42 Cal.4th at pp. 211–212.)
“[T]he primary purpose of the statutes of limitation is to prevent plaintiffs
from asserting stale claims once evidence is no longer fresh and witnesses are
no longer available.” (Murphy v. Kenneth Cole Productions, Inc. (2007)
40 Cal.4th 1094, 1114.) A statute of limitations is an affirmative defense that
may be forfeited by a defendant (Save the Agoura Cornell Knoll v. City of
11 Former Government Code section 905, subdivision (m), exempting
from the claim presentation requirement childhood sexual assault claims
arising out of conduct occurring on or after January 1, 2009 was added “in
direct response to Shirk.” (Coats, supra, 46 Cal.App.5th at p. 422.)
17
Agoura Hills (2020) 46 Cal.App.5th 665, 681) or equitably tolled by a court
(Mojica v. 4311 Wilshire, LLC (2005) 131 Cal.App.4th 1069, 1073).
Shirk stands for the proposition that there are differences between a
statute of limitations and the claim presentation requirement, and a
statutory reference to one does not include the other. But the Court did not
suggest the differences are material in the context of the gift clause (which
was not at issue in that case). Nor, of course, did Shirk hold that a waiver of
the claim presentation requirement is a gift but waiver of the statute of
limitations is not. However, Bickerdike, supra, 144 Cal. 681, offers more
support for the District’s position. The Supreme Court reasoned, “The
statute of limitations does not . . . 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.” (Id. at p. 692.) The District argues, “when no
timely claim is presented, a plaintiff’s claim is extinguished and a limitation
on liability arises. . . . A statute creating liability that did not exist (because
any prior liability was extinguished when no timely claim was presented) is a
‘gift’ or ‘thing of value’ to [Plaintiff].”
However, under Chapman the crucial consideration is whether the
Legislature has created new substantive liability, or, instead, has simply
removed an obstacle to recovery imposed by the state as a condition of its
consent to suit that is not an aspect of the underlying substantive liability.
Indeed, although Shirk characterized the timely presentation of a claim as an
18
“element” of a cause of action in the sense that it must be pled in a complaint,
both Shirk and Rubenstein make clear it is not an aspect of the underlying
substantive liability. Thus, Shirk held that the cause of action for childhood
sexual assault in that case “accrued” at the time of the last molestation.
(Shirk, supra, 42 Cal.4th at p. 210 [“Generally, a cause of action for childhood
sexual molestation accrues at the time of molestation.”].) Rubenstein, supra,
3 Cal.5th 903, which addressed the same enactment, made the point even
more explicitly. The Court restated the general rule that “ ‘a cause of action
accrues at “the time when the cause of action is complete with all of its
elements,” ’ ” and re-affirmed Shirk’s holding that a childhood sexual assault
claim accrues (is “ ‘ “complete with all of its elements” ’ ”) at the time of the
“wrongful act”—“at the latest . . ., the time of the last alleged molestation.”
(Rubenstein, at pp. 911, 913.) Neither Shirk nor Rubenstein suggested that
accrual only occurred after satisfaction of the claim presentation
requirement, which would be expected if satisfaction of the requirement were
an aspect of the substantive liability—that is, the actual wrongful conduct
giving rise to a claim. Of course, before AB 218, compliance with the claim
presentation requirement was a condition precedent to maintaining an
action, but, in effect, so was the filing of an action before expiration of the
statute of limitations. (See Williams v. Johnson (D.C. Cir. 2015) 776 F.3d
865, 874 [“all procedural requirements are ultimately conditions precedent to
some substantive right, else they would be requirements without
consequence”].) One must be pled in the complaint and the other is a defense
to an action, but neither is a substantive aspect of the underlying tortious
conduct for which the State has waived immunity.
In conclusion, while the differences between the statutes of limitations
and the claim presentation requirement are material in some circumstances,
19
the District has not shown the distinction is material under the gift clause.
When the Legislature waives either requirement, it exposes the public
treasury to potential causes of action that were otherwise barred. As we
understand Chapman, the gift clause is violated when conduct that was not
tortious when it took place is subsequently made tortious with retroactive
effect. But the GCA itself and the Quigley, Shirk, and Rubenstein decisions
make clear that the District’s substantive liability for the alleged sexual
assaults exists independently of the claim presentation requirement.12 Thus,
we conclude that no “gift” occurred when the Legislature waived the claim
presentation requirement with respect to alleged conduct for which the
District was indisputably substantively liable when it happened.
12 Amici curiae Public Justice, et. al., argue for a similar distinction in
different language, reasoning, “the District wrongly suggests that it never
owed [Plaintiff] anything because the claim-presentation requirement was an
‘element’ of her ‘cause of action.’ [Citation.] But this confuses the elements of
the District’s liability—the facts that make it ‘obliged by law or equity’ to
compensate [Plaintiff] (Liable, Oxford English Dict. (July 2023))—with the
elements of [Plaintiff’s] ‘cause of action, which is the right to relief in court.’
(Klopstock v. Superior Ct. for City & Cnty. of San Francisco (1941) 17 Cal.2d
13, 18; Cause of Action, Black’s Law Dict. (11th ed. 2019) [‘[A] factual
situation that entitles one person to obtain a remedy in court from another
person” (italics added)].)” The language used by the courts has not closely
tracked the suggested distinction between “liability” and a “cause of action.”
For example, Shirk and Rubenstein held that that the “cause of action for
childhood sexual molestation accrues at the time of molestation” (Shirk,
supra, 42 Cal.4th at p. 210; accord, Rubenstein, supra, 3 Cal.5th at pp. 911,
913)—even before the claim presentation necessary to relief in court. But the
notion of “substantive liability” emphasized in this decision is parallel to the
notion of “liability” in the argument made by amicus curiae.
20
III. AB 218 Serves a Public Purpose
As noted previously, an expenditure of public funds that serves a public
purpose does not violate the gift clause, and “[t]he determination of what
constitutes a public purpose is primarily a matter for the Legislature, and its
discretion will not be disturbed by the courts so long as that determination
has a reasonable basis.” (Carleson, supra, 5 Cal.3d at p. 746; accord, San
Diego Cnty. Dep’t of Soc. Servs. v. Superior Ct. (2005) 134 Cal.App.4th 761,
766; Scott, supra, 50 Cal.App.4th at p. 1605.) 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.
A. The Purpose of AB 218
As noted at the outset of our discussion, prior California decisions have
been clear that “ ‘the intent that illuminates section 340.1 as a whole’ ” and
AB 218 in particular is “an aim ‘to expand the ability of victims of childhood
sexual abuse to hold to account individuals and entities responsible for their
injuries.’ ” (Los Angeles Unified, supra, 14 Cal.5th at p. 777; accord, Quarry
v. Doe I (2012) 53 Cal.4th 945, 1003–1004; see also Doe v. City of Los Angeles
(2007) 42 Cal.4th 531, 536 [section 340.1 is “a remedial statute that the
Legislature intended to be construed broadly”]; Coats, supra, 46 Cal.App.5th
at p. 430 [“It is apparent from the history of amendments to these statutes
. . . that the Legislature has consistently worked to expand the ability of
victims of childhood sexual abuse to seek compensation from the responsible
parties, on several occasions in direct response to restrictive judicial
opinions.”]; Liebig v. Superior Ct. (1989) 209 Cal.App.3d 828, 834 [“the
important state interest espoused by section 340.1 is the increased
availability of tort relief to plaintiffs who had been the victims of sexual
abuse while a minor”].) More narrowly, the purpose of “exempting [s]ection
21
340.1 civil actions for childhood sexual abuse from government tort claim
requirements” is “ ‘ “to ensure that victims severely damaged by childhood
sexual abuse are able to seek compensation from those responsible, whether
those responsible are private or public entities.” ’ ” (A.M. v. Ventura Unified
Sch. Dist. (2016) 3 Cal.App.5th 1252, 1264 [referencing prior amendment to
Gov. Code, § 905, subd. (m)].)
The legislative history to AB 218 provides further details. A Senate
Judiciary Committee report explains, “ ‘Childhood sexual abuse has been
correlated with higher levels of depression, guilt, shame, self-blame, eating
disorders, somatic concerns, anxiety, dissociative patterns, repression, denial,
sexual problems, and relationship problems.’ Given the horrific damage and
life-long trauma that can be caused by childhood sexual assault, these claims
are arguably worthy of such revival, despite the general disregard for doing
so.” (Sen. Com. on Judiciary, Analysis of AB 218 (2019–2020 Reg. Sess.) as
amended March 25, 2019, p. 8.) The report continued, characterizing the bill
author’s argument as follows: “There are complex psychological effects that
result from being victimized in this way. In addition, the systematic
incidence of childhood sexual assault in numerous institutions in this country
and the cover-ups that accompanied them arguably make both a revival
period and an extended statute of limitations warranted. This bill provides
another chance for victims, who are currently barred from pursing claims
based solely on the passage of time, to seek justice.” (Ibid.) An Assembly
Judiciary Committee report included similar reasoning and also referenced
proponents’ arguments that “the psychological injuries from sexual[] assault
emerge later in life and that victims routinely need decades to reach the
psychological place where they can come forward” and “ ‘[t]he residual effects
of the trauma impact the survivor’s education and employment, adding to the
22
economic loss the individual suffers as a result of the crime.’ ” (Assem. Com.
on Judiciary, Analysis of AB 218 (2019–2020 Reg. Sess.) as introduced
January 16, 2019, p. 5 (italics omitted); see also id. at p. 1 [referring to “the
lifetime of damage that this abuse causes its victims”].)
B. Revival of An Unenforceable Claim Can Serve a Public Purpose
At the outset, we reject the District’s blanket assertion that “California
precedent firmly establishes that making previously unenforceable claims
actionable cannot serve” a public purpose. In support of that proposition, the
District cites Conlin, supra, 99 Cal. 17, Jordan v. Cal. Dept. of Motor Vehicles
(2002) 100 Cal.App.4th 431 (Jordan), and Orange Cty. Found. v. Irvine Co.
(1983) 139 Cal.App.3d 195 (Orange County). The District misreads those
authorities.13
In Conlin, the City of San Francisco had only a “moral or equitable
obligation” to provide compensation to a contractor because there was no
contractual liability at the time the work was performed. (Conlin, supra,
99 Cal. at p. 22.) Conlin is distinguishable because, as discussed in Part II,
ante, AB 218 does not create new substantive liability. Furthermore, in
Conlin “[t]here was no claim or suggestion that the moneys so directed to be
paid were to be devoted to any public purpose.” (City of Oakland v. Garrison
(1924) 194 Cal. 298, 302; accord, Patrick v. Riley (1930) 209 Cal. 350, 355–
356.) In Garrison, the Court affirmed that, in cases involving the revival of
previously unenforceable claims, it is still “the primary and fundamental
subject of inquiry . . . whether the money is to be used for a public or a
private purpose.” (Garrison, at p. 302; accord, Riley, at p. 356.)
13 We observe that the District’s argument would also lead to a
conclusion that any enactment waiving a statute of limitations bar does not
serve a public purpose, because any such enactment would also revive a
previously unenforceable claim.
23
Orange County and Jordan are analogous to Conlin. In Orange
County, the court merely held that it would be a gift of public funds for the
state to enter into a settlement agreement clearing title to property where
the private party receiving the payment knew it had no claim to the property.
(Orange County, supra, 139 Cal.App.3d at pp. 200–201.) The payment was
not “the settlement of a good faith dispute,” and no other public purpose was
identified. (Id. at p. 200.) Similarly, in Jordan, the court of appeal concluded
an arbitration award violated the gift clause because it awarded fees in
excess of the maximum authorized by the Legislature in connection with the
action. (Jordan, supra, 100 Cal.App.4th at pp. 438–442, 450.) The court
stated that awarding fees in excess of the state’s maximum exposure was
“akin to payment of a wholly invalid claim and violates the gift clause.” (Id.
at p. 450.) In contrast to Conlin, Orange County, and Jordan, which involved
only discrete payments to private parties with no larger public goal, in the
present case the Legislature sought to provide relief to a disadvantaged
group of persons. As explained below, that is a sufficient public purpose
under the gift clause.
C. Courts Have Regularly Concluded That Expenditures on Behalf
of Disadvantaged Groups Serve a Public Purpose
“[A] public purpose embodies not only expenditures which are
necessary for the continued existence of government, but also those ‘which
may tend to make that government subserve the general well-being of
society, and advance the present and prospective happiness and prosperity to
the people.’ ” (San Diego Cnty. v. Hammond (1936) 6 Cal.2d 709, 722; see
also Carleson, supra, 5 Cal.3d at p. 746 [“the Legislature could reasonably
have determined that such legislation was in the best interests of the general
public welfare”]; Allied Architects’ Ass’n of Los Angeles v. Payne (1923)
24
192 Cal. 431, 439 [“[A] gift as implying a gratuity, that is, something for
nothing, . . . is the “gift” meant by the constitution,” and the “return” may be
“incorporeal and intangible”]; Standard, supra, 42 Cal.App.2d at p. 414 [“The
legislature is vested with a large discretion in determining what is for the
public good and what are public purposes for which public moneys can be
rightfully expended and that discretion cannot be controlled by the courts
except when its action is clearly evasive.”].)
Employing such a “general public welfare” rationale, a “wide variety of
welfare and other social programs have been upheld against constitutional
challenge” under the gift clause. (Carleson, supra, 5 Cal.3d at p. 746; see also
Alameda Cnty. v. Janssen (1940) 16 Cal.2d 276, 282 [“This court has
frequently upheld the expenditure of funds by the state or its subdivisions for
the benefit of individuals as for a ‘public purpose.’ ”].) Carleson involved the
state’s “plan for aid and services to needy families with children” (Carleson,
at p. 734), and Janssen involved “the release of liens held against the
property of indigent recipients of aid” (Janssen, at p. 282). (See also, e.g.,
Elliott, supra 17 Cal.3d at pp. 583–584 [“There is considerable case law
supporting the Agency’s contention that the Legislature acted reasonably in
concluding that decent housing for the affected persons serves a public
purpose.”]; La Fuente, supra 20 Cal.2d at p. 877 [“The care and relief of aged
persons who are in need clearly may be a special matter of state concern in
promoting public health and welfare.”]; City & Cnty. of San Francisco v.
Collins (1932) 216 Cal. 187, 190 [approving bonds for “the relief of [the City’s]
indigent sick and dependent poor”].)
We believe AB 218 may be sustained under the reasoning of the above
cases. The District does not dispute “the horrific damage and life-long
trauma that can be caused by childhood sexual assault” (Sen. Com. on
25
Judiciary, Analysis of AB 218, supra, at p. 8); 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. We believe the Legislature’s purpose to
aid the disadvantaged group of childhood sex assault victims in the present
case is analogous to the intent to offer relief to other disadvantaged groups in
the cases in the preceding paragraph and the other cases relied upon in those
decisions.14
One additional decision, Scott, supra, 50 Cal.App.4th 1597, is
instructive. There, the Legislature enacted a statute retroactively extending
the time period during which taxpayers could claim an exclusion from
reassessment for transfers of ownership of real property from parents to
children. (Id. at p. 1600.) The enactment retroactively excused compliance
with a constitutional provision “that the failure in any year to claim an
exemption or classification which reduces a property tax amounts to a waiver
as a matter of law for that year.” (Ibid.) The court of appeal rejected a
County Tax Assessor’s claim that the statute violated the gift clause,
concluding that the enactment served a public purpose. (Id. at pp. 1605–
1606.) In particular, providing “ ‘relief of hardship to’ ” a “limited class of
persons” (taxpayers who “inadvertently lost their parent-child exclusion”)
was a “ ‘valid public purpose.’ ” (Id. at pp. 1604–1605.) By analogy, providing
14 The District cites to San Diego Cnty. Dep’t of Soc. Servs. v. Superior
Ct., supra, 134 Cal.App.4th 761, where the court held it was a prohibited gift
of public funds for a juvenile court to order the “use of County funds to pay
independent counsel to investigate the possibility of filing a civil suit on
behalf of a dependent child.” (Id. at p. 766.) But that case did not involve a
legislative determination of public purpose to offer relief to a disadvantaged
group. Indeed, the juvenile court’s order was contrary to the court’s local
rules. (Id. at p. 767.)
26
relief to a class of victims of childhood sexual assault who failed to file timely
claims also serves a public purpose.
In sum, in seeking to aid victims of childhood sexual assault, 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 “in the best interests of
the general public welfare.” (Carleson, supra, 5 Cal.3d at p. 746.) The main
difference is the mechanism of expenditure of the public funds: many
programs provide direct or indirect subsidies from the public treasury, while
AB 218 ensures any public expenditures will be made by entities accountable
for the victims’ injuries.
The District argues that AB 218 is different because it “does not benefit
any recognizable ‘population’ ” . . . The beneficiaries of AB 218 are not united
by any protected characteristic (like race or creed), nor by geography,
property ownership, financial condition, or the like.” We disagree. The class
of persons benefited by AB 218 is sufficiently defined, even if victims must
prove their eligibility for compensation in individual lawsuits. The District
cites no authority to the contrary.
The District has not shown AB 218 does not serve a valid public
purpose.15
D. The Policy Arguments of the District and Amici Curiae are
Misplaced
The District and the amici curiae who filed briefs in support of the
District also argue at length that AB 218 is bad public policy. The District
15 The parties debate whether AB 218 also deters future sexual
assaults. We need not and do not address that issue because we conclude
AB 218 serves a public purpose regardless of any such deterrence.
27
argues, “AB 218 affirmatively harms the public interest by precipitating an
unprecedented wealth transfer from public schools to private individuals,
imperiling the solvency of numerous school districts, and threatening the
constitutional education rights of children now attending public schools.”
The amici curiae who filed briefs in support of the District are, for example,
various public entities facing liability under AB 218, policy groups
representing public schools in California, and joint powers authorities
(JPAs).16 The District summarizes the arguments in those briefs as follows:
“Amici note the thousands of claims filed pursuant to AB 218, and emphasize
the resulting astronomical costs”; “For the most part, these costs will not be
shifted to private insurers”; “Public schools that had insurance coverage . . .
when much of the alleged abuse occurred—either cannot locate their
insurance policies, or their insurers went out of business”; “Many school
districts are protected instead by joint powers authorities, an alternative to
insurance. JPAs operate effectively when they can plan ahead; claim notices
(gathered from the reporting requirement in the [GCA]) are the foundation of
their actuarial calculations”; and “there is little reason to hope that public
school districts can adequately defend themselves in individual cases. They
cannot locate important witnesses and documents because of the age of the
allegations. . . . Also, plaintiffs may be unable to identify alleged
16 The amici curiae are listed in footnote 3, ante. “Joint powers
authorities, in which two or more municipalities join together to exercise any
power that each has the power to exercise individually, have been sanctioned
by the Joint Exercise of Powers Act, Government Code Sections 6500, et seq.,
since 1949. The municipalities have the power to insure, either through self-
insurance or the purchase of a commercial policy, or both, against a broad
range of liabilities. [Citations.] They can also insure through participation in
joint powers pooling arrangements.” (City of S. El Monte v. S. Cal. Joint
Powers Ins. Auth. (1995) 38 Cal.App.4th 1629, 1632.)
28
perpetrators, compounding the difficulties for public entities trying to defend
against such claims.”
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 218.17 Indeed, those concerns
were considered by the Legislature. A Senate Judiciary Committee report
observed that the bill was “opposed by various associations that would likely
be affected by these revived or extended claims periods.” (Sen. Com. on
Judiciary, Analysis of AB 218, supra, at p. 1.) In particular, “[a] coalition of
groups, including the Schools Excess Liability Fund, the Schools Insurance
Authority, the Association of California School Administrators, the California
Association of Joint Powers Authorities, and the California Association of
School Business Officials, [wrote] in opposition: [¶] ‘As drafted, AB 218
exposes local public schools and others, to claims of abuse going back 40 years
ago and longer. It will be impossible for employers to effectively defend
against these claims when evidence is likely gone, witnesses have moved or
passed away, and there has been a turnover of staff. With these barriers,
schools will be unable to adequately respond to these claims. This failure will
17 Plaintiff disputes the assertions made by the amici curiae in support
of the District, arguing “Amici’s own documents show that since AB 218 was
signed in 2019, JPAs have forecasted potential liability, increased member
assessments, and pooled resources sufficient to cover claims filed during
AB 218’s revival period. Further, public entities already enjoy special
protections if faced with a large judgment that allows school districts to make
periodic payments over 10 years and at significantly lower interest rates than
the already discounted 7% applicable to public entity defendants. (Gov. Code,
§ 970.6, subd. (a); § 984, subd. (d).) School districts may also issue judgment
obligation bonds pursuant to Gov. Code, § 975.2 et seq. to satisfy any duty to
pay uncovered liabilities.” We need not and do not resolve the factual
disputes about the consequences of AB 218.
29
result in diversion of funding intended to educate students and serve
communities to financing increased legal costs, whether or not the claim is
valid. This is particularly troubling when considering that AB 218 would
permit the recovery of treble damages . . . .” (Id. at p. 12.)18 With respect to
the treble damages provision, the coalition argued, “Coupled with the other
provisions of the bill, this component may result in added billions of dollars in
costs to schools to settle claims that are decades old and occurred under
school boards and administrators that are long gone, with little evidence or
ability to defend against them. With little to no evidence available, school
districts will be forced to settle a lawsuit resulting in the diversion of critical
education funds and services for today’s students.” (Id. at p. 13.)
Similarly, an Assembly Judiciary Committee Report stated that
opponents of the bill—“public and private school officials, insurance
associations, and joint powers associations”—argued, “it is very difficult to
defend against old claims when records and witnesses may be unavailable,
insurance may no longer be available, and the cost of defending these actions
could be astronomical and could prevent the impacted entities from being
able to support their main work.” (Assem. Com. on Judiciary, Analysis of
AB 218, supra, p. 2, italics omitted; see also id. at pp. 9–10.) The opponents
further argued, “ ‘AB 218 will create new liability that will be funded in large
part by public dollars that would otherwise go directly to funding
education.’ ” (Id. at p. 10.) The report acknowledged opponents’ concerns and
the request to retain the claims presentation bar, but observed, “Obviously,
the flip side of the burden of the cost of these claims on schools, churches, and
18 All but one of the groups mentioned in the report as opposing AB 218
are amicus curiae in the present proceeding (see fn. 3, ante), making similar
arguments in opposition to AB 218.
30
athletic programs that protected sexual abusers of children is the lifetime
damage done to those children.” (Assem. Com. on Judiciary, Analysis of AB
218, supra, at pp. 10–11.)
Another committee analysis expressly acknowledged the potential
fiscal impact on schools, referencing “Unknown, potentially-major . . . costs to
local entities and school districts to the extent litigation is successfully
brought outside the current statute of limitations and/or the entities are
liable for damages. If payouts are large enough, this measure could lead to
cost pressures to the state to stabilize a local jurisdiction or district.” (Sen.
Rules Com., Analysis of AB 218 (2019–2020 Reg. Sess.) as amended August
30, 2019, p. 6.)
This court does not know the full scope of the information provided to
legislators in opposition to AB 218, but it 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. To the contrary, “ ‘Courts do not sit as super-
legislatures to determine the wisdom, desirability or propriety of statutes
enacted by the Legislature.’ [Citation.] ‘In reviewing the constitutionality of
legislation, it must be remembered that “[c]ourts have nothing to do with the
wisdom of laws . . ., and the legislative power must be upheld unless
manifestly abused so as to infringe on constitutional guaranties. . . . The only
function of the courts is to determine whether the exercise of legislative
power has exceeded constitutional limitations.” ’ ” (In re J.C. (2017) 13
31
Cal.App.5th 1201, 1207–1208; see also People v. Hardin (2024) 15 Cal.5th
834, 864 [“It is not for us to pass judgment on the wisdom or desirability of
[the Legislature’s] policy choices.”]; Copley Press, Inc. v. Superior Court
(2006) 39 Cal.4th 1272, 1299 [“[I]t is for the Legislature to weigh the
competing policy considerations.”]; 20th Century Ins. Co. v. Superior Ct.
(2001) 90 Cal.App.4th 1247, 1263–1264 [“[I]t is the Legislature, not the
courts, which is the proper forum for resolving the competing policy interests
involved in the decision to revive a time-barred claim”].) Accordingly, this
court will not address in detail amici curiae’s “voluminous” briefing
“addressed to the wisdom of [the statute], a topic outside our purview.”
(Claypool v. Wilson (1992) 4 Cal.App.4th 646, 659.)
Ironically, the District asserts 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.”
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. As the court recognized in Coats, supra,
46 Cal.App.5th at page 429, “In [AB 218], the Legislature has again
attempted to balance the competing concerns of protecting public entities
from stale claims and allowing victims of childhood sexual abuse to seek
compensation. This time, the Legislature came to a different conclusion, with
an express revival provision for claims against public entities as well as those
against private defendants.” (See also Los Angeles Unified, supra, 14 Cal.5th
at pp. 769–770 [the GCA “as a whole reflects an awareness that although tort
claims can draw from public coffers and may impose additional burdens on
taxpayers, to the extent these awards are necessary to compensate plaintiffs
with meritorious claims for their injuries, they simply reflect the loss-
distributing function of tort law at work”].) The District has not shown the
32
Legislature lacked a “reasonable basis” for its determination that AB 218
serves a public purpose. (Carleson, supra, 5 Cal.3d at p. 746.)19
IV. The District Lacks Standing to Assert Its Due Process Claims
The District also contends that “resurrecting extinguished claims that
are barred by a lapsed claim presentation deadline” violates its right to due
process under both the federal and California Constitutions.20 The District
lacks standing to challenge AB 218 on those grounds.
In Star–Kist Foods, Inc. v. County of Los Angeles (1986) 42 Cal.3d 1
(Star–Kist), the Supreme Court noted “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. ‘A municipal corporation, created by a state for
the better ordering of government, has no privileges or immunities under the
federal constitution which it may invoke in opposition to the will of its
creator.’ ” (Id. at p. 6; accord, People v. Carter (2023) 97 Cal.App.5th 960, 976
(Carter); City of Grass Valley v. Cohen (2017) 17 Cal.App.5th 567, 592
(Cohen); San Diego Cnty. Water Auth. v. Metro. Water Dist. of S. California
(2017) 12 Cal.App.5th 1124, 1162 (San Diego Cnty.); City of San Jose v.
19 We are not unsympathetic to the concerns expressed by the District
and amici curiae supporting the District. One amicus curiae brief
dramatically describes AB 218 as “a massive intergenerational transfer of
public moneys away from the current generation of children.” But, to the
extent that AB 218 excessively strains school district budgets or has other
negative unintended consequences, recourse is with the Legislature.
20 The District did not assert either of its due process claims below or in
the Petition. Nevertheless, we “exercise our discretion to decide a pure
question of law where the facts are undisputed.” (McKneely v. Superior Ct.
(2023) 91 Cal.App.5th 1232, 1241.)
33
Sharma (2016) 5 Cal.App.5th 123, 148; see also Santa Monica Cmty. Coll.
Dist. v. Pub. Emp. Rels. Bd. (1980) 112 Cal.App.3d 684, 690 [referring to “the
long line of cases which hold that a public entity, being a creature of the
state, is not a ‘person’ within the meaning of the due process clause, and is
not entitled to due process from the state”].)21
“ ‘The same reasoning applies to the due process protections afforded
under the California Constitution.’ ” (City of Burbank v. Burbank Glendale
Pasadena Airport Authority (1999) 72 Cal.App.4th 366, 380, quoting Board of
Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 296–297; see also
Reclamation Dist. No. 1500 v. Superior Ct. in & for Sutter Cnty. (1916)
171 Cal. 672, 680 [rejecting takings claim under California Constitution and
referring to “the proposition that the county (or reclamation or school district)
is a mere political agency of the state, that it holds its property on behalf of
the state for governmental purposes, and that it has no private proprietary
interest in such property as against the state”]; Carter, supra, 97 Cal.App.5th
at p. 976 [relying on Star–Kist to reject claims under the “United States and
California Constitutions’ contracts clauses”]; McMahon, at p. 297 [citing
cases].) The District provides no reason why it has standing to assert a due
process claim under the California Constitution where it may not do so under
the federal Constitution.
“ ‘A public school district is a political subdivision of the State of
California.’ ” (K.M. v. Grossmont Union High Sch. Dist. (2022)
84 Cal.App.5th 717, 752; see also California Redevelopment Assn. v.
Matosantos (2011) 53 Cal.4th 231, 243 [“the Legislature established school
21 “The term ‘standing’ in this context refers not to traditional notions
of a plaintiff’s entitlement to seek judicial resolution of a dispute, but to a
narrower, more specific inquiry focused upon the internal political
organization of the state . . . .” (Star-Kist, supra, 42 Cal.3d at pp. 5–6.)
34
districts as political subdivisions and delegated to them [the] duty” of
providing a public school system]; Butt v. State of California (1992) 4 Cal.4th
668, 680–681 [“ ‘Local districts are the State’s agents for local operation of the
common school system’ ”].) The District does not dispute that point, and it
has no substantial answer to the rule articulated in Star–Kist and applied
repeatedly since then. The District points out that Star–Kist exempted
certain constitutional claims from the “no standing” rule, but the exemption
does not encompass the District’s due process claims. In particular, the
Court explained, “[p]rovisions like the Fourteenth Amendment and the
contract clause ‘confer fundamental rights on individual citizens’; the
supremacy clause, in contrast, ‘establishes a structure of government which
defines the relative powers of states and the federal government.’ [Citations.]
Political subdivisions cannot assert ‘constitutional rights which are intended
to limit governmental action vis-a-vis individual citizens’ but may invoke the
supremacy clause to challenge preempted state law.” (Star–Kist, supra,
42 Cal.3d at p. 8.) At issue in Star–Kist was a claim based on the federal
constitutional commerce clause, which “resembles the supremacy clause in
that it, albeit indirectly, ‘defines the relative powers of states and the federal
government.’ ” (Id. at p. 9.) The District’s due process claims are not
analogous to the supremacy and commerce clause claims exempted by Star–
Kist. (See Cohen, supra, 17 Cal.App.5th at p. 592 [emphasizing limited scope
of the Star–Kist exception]; San Diego Cnty., supra, 12 Cal.App.5th at p. 1162
[same].)
In support of its position, the District also cites to Rogers v. Brockette
(5th Cir. 1979) 588 F.2d 1057, Zee Toys, Inc. v. County of Los Angeles (1978)
85 Cal.App.3d 763, and Board of Ed. of Central School Dist. No. 1 v. Allen
(1968) 392 U.S. 236. None of those decisions are contrary to or undermine
35
the rule articulated in the Star–Kist decision. Rogers was a supremacy clause
case, and it stated that federal courts have “invariably” held municipalities
may not assert due process claims against states. (Rogers, at pp. 1067–1068.)
Zee Toys was a commerce clause case relating “to the national interest in
observing the boundaries of state and federal power.” (Zee Toys, at p. 778.)
Finally, Allen permitted school board members to assert a First Amendment
challenge to a state law on the basis that they had “a ‘personal stake in the
outcome’ of [the] litigation.” (Allen, at p. 241 & fn. 5.) Allen did not question
the “well-established rule” described in Star–Kist or any of the United States
Supreme Court cases cited therein. (Star–Kist, supra, 42 Cal.3d at p. 6.)
Finally, the District cites to Washington v. Seattle School Dist. No. 1
(1982) 458 U.S. 457, with the bold but erroneous assertion that the decision
“signaled that school districts are different and not subject to the political-
subdivision rule.” That case did not suggest that school districts are
“different” and did not consider the issue in Star–Kist: whether a political
subdivision possesses “ ‘privileges or immunities under the federal
constitution which it may invoke in opposition to the will of’ ” the state.
(Star–Kist, supra, 42 Cal.3d at p. 6.) Instead, in Seattle School District the
Supreme Court allowed a local school board seeking to defend a busing
integration program to challenge a state initiative on equal protection
grounds because the initiative “use[d] the racial nature of an issue to define
the governmental decisionmaking structure, and thus impose[d] substantial
and unique burdens on racial minorities.” (Seattle School District, at p. 470.)
Therefore, the decision in that case was grounded on the equal protection
rights of the racial minorities adversely affected by the initiative, not on any
equal protection right held by the school district vis-à-vis the state. The same
is true of other cases cited by the District. (See Romer v. Evans (1996)
36
517 U.S. 620, 625 [municipalities challenging state constitutional
amendment based on equal protection rights of gays and lesbians]; Coral
Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315,
329 (Coral Construction) [considering claim by city that statute violated
citizens’ equal protection rights]; Cent. Delta Water Agency v. State Water
Res. Control Bd. (1993) 17 Cal.App.4th 621, 629 [water agencies had standing
to bring action contending statute “violate[d] the [equal protection] rights of
the agencies’ constituent water users”].)22 It is also irrelevant that Seattle
School District held that the school district plaintiffs could recover attorney’s
fees from the state defendant; the Court so held simply because the plaintiffs
were “plainly parties covered by the language of the fees statutes.” (Seattle
School District, at p. 487, fn. 31.) In any event, the Court nowhere addressed
the standing issue presented in Star–Kist and in the present case. (See
Maplebear, Inc. v. Busick (2018) 26 Cal.App.5th 394, 406 [“ ‘[i]t is axiomatic
that cases are not authority for propositions not considered’ ”]; Burbank-
Glendale-Pasadena Airport Auth. v. City of Burbank (9th Cir. 1998) 136 F.3d
1360, 1363 [“Seattle School District does not constitute binding authority
with respect to standing”].)23
22 For the first time at oral argument, the District argued it has
standing to assert the constitutional rights of current students negatively
impacted by the District’s potential liability under AB 218. That argument
has been forfeited. (Goldstein v. Superior Ct. (2023) 93 Cal.App.5th 736, 746,
fn. 8.)
23 The same is true of other cases cited by the District and amicus
curiae County of Los Angeles that are both inapposite and do not consider
standing. (See, e.g., Romer v. Evans, supra, 517 U.S. 620; Coral
Construction, supra, 50 Cal.4th 315; Midway Venture LLC v. County of San
Diego (2021) 60 Cal.App.5th 58; Carr v. State of California (1976)
58 Cal.App.3d 139.) Another case, Bd. of Natural Resources of State of Wash.
v. Brown (9th Cir. 1993) 992 F.2d 937, addresses the standing of counties to
37
The District lacks standing to assert a due process challenge to AB 218
under either the federal or California Constitutions.
DISPOSITION
The District’s petition for writ of mandate is denied. Costs are awarded
to Plaintiff.
SIMONS, J.
We concur.
JACKSON, P. J.
BURNS, J.
(A169314)
challenge a federal enactment, which does not implicate “the well-established
rule that subordinate political entities, as ‘creatures’ of the state, may not
challenge state action” on due process or equal protection grounds. (Star–
Kist, supra, 42 Cal.3d at p. 6.)
38
West Contra Costa USD v. Superior Court (A169314)
Trial Judge: Hon. John P. Devine
Trial Court: Contra Costa County Superior Court
Attorneys:
Horvitz & Levy LLP, David M. Axelrad and Peder K. Batalden;
Fagen Friedman & Fulfrost LLP, Roy A. Combs, David R. Mishook, and
Rami B. Noeil for Petitioner.
Greines, Martin, Stein & Richland LLP, Edward L. Xanders and
Alana Rotter for Schools Association for Excess Risk, Northern
California Regional Liability Excess Fund, Southern California
Regional Liability Excess Fund, and Statewide Association of
Community Colleges as Amici Curiae on behalf of Petitioner.
Atkinson, Andelson, Loya, Ruud & Romo, Mark Bresee, Alyssa
Ruiz de Esparza, and Juliana Duran; California School Boards
Association, Kristin Lindgren, Bode Owoyele, and Dana Scott for
California School Boards Association and its Education Legal Alliance
as Amicus Curiae on behalf of Petitioner.
Griffith & Thornburgh, LLP, Craig Price, Felicita A. Torres, and
Austin S. Payne for Montecito Union School District and Carpinteria
Unified School District as Amici Curiae on behalf of Petitioner.
Cole Huber LLP, Derek P. Cole for Schools Excess Liability Fund,
California Association of Joint Powers Authorities, and Public Risk
Innovations, Solutions, and Management as Amici Curiae on behalf of
Petitioner.
Fozi Dwork & Modafferi, LLP, Daniel S. Modafferi for Alliance of
Schools for Cooperative Insurance Programs as Amicus Curiae on
behalf of Petitioner.
39
Lozano Smith, Sloan R. Simmons and Adam M. Vasquez for
California Association of School Business Officials as Amicus Curiae on
behalf of Petitioner.
Matheny Sears Linkert & Jaime, LLP, Richard S. Linkert and
Madison M. Simmons for Schools Insurance Authority as Amicus
Curiae on behalf of Petitioner.
Miller Barondess, LLP, Mira Hashmall, Nadia A. Sarkis, and
Eleanor S. Ruth for County of Los Angeles as Amicus Curiae on behalf
of Petitioner.
Orbach Huff & Henderson LLP, David M. Huff, Enrique M.
Vassallo, JiEun Choi, and Julia A. Wolpert for Compton Unified School
District as Amicus Curiae on behalf of Petitioner.
Davis, Bengtson & Young, Eric J. Bengtson and Bruce D.
MacLeod for East Side Union High School District, San Mateo Union
High School District, Santa Clara Unified School District, Oakland
Unified School District, Los Gatos-Saratoga Union High School
District, Oak Grove School District, and Berryessa Union School
District as Amici Curiae on behalf of Petitioner.
No appearance for Respondent.
Boucher LLP, Raymond Boucher, Shehnaz M. Bhujwala, and
Amanda Walbrun; Esner, Chang, Boyer & Murphy, Holly N. Boyer for
Real Party in Interest.
Alan Charles Dell’Ario; DeMarco Law Firm, Anthony M.
DeMarco for Consumer Attorneys of California as Amicus Curiae on
behalf of Real Party in Interest.
Public Justice, Sean Ouellette and Adele P. Kimmel for Public
Justice, Child USA, Equal Rights Advocates, and National Center for
Victims of Crime as Amici Curiae on behalf of Real Party in Interest.
40