The opinion
Filed 5/21/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LOS ANGELES UNIFIED B307389
SCHOOL DISTRICT,
Los Angeles County
Petitioner, Super. Ct. No. BC659059
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
JANE DOE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Shirley K.
Watkins, Judge. Petition granted.
Gutierrez, Preciado & House, Calvin House and Arthur
C. Preciado for Petitioner.
No appearance for Respondent.
Taylor & Ring, David M. Ring, Natalie L. Weatherford;
Esner, Chang & Boyer and Holly N. Boyer for Real Party in
Interest.
The Zalkin Law Firm and Devin M. Storey for National
Center for the Victims of Crime as Amicus Curiae on behalf of
Real Party in Interest.
_________________________
Code of Civil Procedure section 340.1 (section 340.1)
authorizes an award of “up to treble damages” in a tort action
for childhood sexual assault where the assault occurred “as the
result of a cover up.” (Code Civ. Proc., § 340.1, subd. (b)(1).)
Government Code section 818 (section 818) exempts a public
entity from an award of damages “imposed primarily for the
sake of example and by way of punishing the defendant.” In
this writ proceeding we must determine whether section 818
precludes an award of treble damages under section 340.1
against a public entity.
Plaintiff Jane Doe sued the Los Angeles Unified School
District (LAUSD) alleging an LAUSD employee sexually
assaulted her when she was 14 years old. She alleged the assault
resulted from LAUSD’s cover up of the employee’s sexual assault
of another student and requested an award of treble damages
under section 340.1. The trial court denied LAUSD’s motion
to strike the damages request, reasoning the imposition of
treble damages under section 340.1 serves not to punish those
who cover up childhood sexual assaults, but to compensate
victims. We conclude the court erred.
Childhood sexual assault inflicts grave harm on its
vulnerable victims—harm that is undoubtedly amplified in some
cases when a victim learns the assault resulted from a deliberate
cover up by the individuals and institutions charged with the
victim’s care. But noneconomic damages under general tort
principles already provide compensation for this added
2
psychological trauma, and neither plaintiff nor the statute’s
legislative history identifies any other possible compensatory
function for the treble damages provision in section 340.1.
Moreover, while section 340.1 generally serves to ensure
perpetrators of sexual assault are held accountable for the
harm they inflict on their vulnerable victims, the statute’s text
unambiguously demonstrates the treble damages provision’s
purpose is to deter future cover ups by punishing past ones in
a tort action. Because treble damages under section 340.1 are
primarily exemplary and punitive, a public entity like LAUSD
maintains sovereign immunity from liability for such damages
under section 818. We therefore grant LAUSD’s petition for
a writ of mandate and direct the trial court to enter an order
striking the treble damages request.
FACTS AND PROCEDURAL BACKGROUND
We draw the facts from the operative first amended
complaint and assume the truth of all properly alleged facts.
(See Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145,
1157.)
LAUSD is a public education agency operating a number
of schools in Los Angeles County, including the high school
plaintiff attended. Plaintiff was 14 years old when she began
her freshman year. Defendant Daniel Garcia was an aide in
two of plaintiff’s classes.
During the first semester of plaintiff’s freshman year,
Garcia began giving her special attention and acting physically
affectionate towards her at school. During the same period,
Garcia targeted other female students, one of whom complained
to the school administration that Garcia inappropriately touched
3
her. Despite this report, the school did not terminate Garcia’s
employment.
In November 2014, Garcia’s “grooming and manipulation”
culminated in his sexual abuse of plaintiff. Due to Garcia’s
threats and coercion, plaintiff did not disclose the abuse to
her parents until March 2016. Plaintiff’s parents immediately
reported the abuse to law enforcement. In May 2016, Garcia
was arrested and charged with criminal offenses stemming
from the abuse.
Before the incident in November 2014, LAUSD allegedly
engaged in a cover up of Garcia’s sexual abuse of another female
LAUSD student. In February 2014, LAUSD learned Garcia
was involved in a “ ‘boyfriend-girlfriend relationship’ ” with
a female student, H.M., at a different LAUSD school. After
learning of the relationship, LAUSD did not terminate Garcia,
but instead transferred him to plaintiff’s high school, where he
met and eventually abused plaintiff. LAUSD also created a false
report that H.M. and Garcia “ ‘dated’ before Garcia’s employment”
with LAUSD. Contrary to the report, H.M. testified under oath
that she told the school district she met Garcia through his
employment at her high school and they “ ‘dated’ while Garcia
was employed” at the school.
In April 2017, plaintiff sued LAUSD and Garcia. Her
operative complaint asserted causes of action against LAUSD for
negligent hiring, supervision, and retention of an unfit employee;
breach of mandatory duty to report suspected child abuse;
negligent failure to warn, train, or educate; and negligent
supervision of a minor. She sought an award of economic
and noneconomic damages against all defendants and an
award of treble damages under section 340.1 against LAUSD.
4
LAUSD moved to strike the request for treble damages.
It argued the “discretionary award of treble damages” under
section 340.1 is “punitive” and, therefore, prohibited against
a public entity under section 818.
Plaintiff opposed the motion. She argued the treble
damages provision’s purpose was not “merely punitive” because
it also served a compensatory function. In support, plaintiff
asked the court to take judicial notice of several Assembly Floor
Analyses of the enacting legislation that included the following
statement attributed to the bill’s author:
“AB 218 would also confront the pervasive
problem of cover ups in institutions, from
schools to sports league[s], which result in
continuing victimization and the sexual assault
of additional children. The bill would allow
for recovery of up to treble damages from the
defendant who covered up sexual assault. This
reform is clearly needed both to compensate
victims who never should have been victims-
and would not have been if past sexual assault
had been properly brought to light- and also
as an effective deterrent against individuals
and entities who have chosen to protect the
perpetrators of sexual assault over the victims.”
The trial court denied the motion to strike. It granted the
request for judicial notice and found the analyses demonstrated
a “legislative intent . . . to compensate the victim.” Because the
treble damages provision had a compensatory function, the court
ruled immunity under section 818 was not available to LAUSD.
5
LAUSD filed this petition for writ of mandate. We issued
an order to show cause.
DISCUSSION
1. The Government Tort Claims Act and Sovereign
Immunity from Punitive Damages under Section 818
The Government Tort Claims Act (Gov. Code, § 810 et seq.;
hereafter Tort Claims Act) specifies the cases in which a public
entity is liable for injuries arising out of its acts or omissions,
or those of its employees. (See, e.g., Gov. Code, §§ 815, 815.2,
815.4, 815.6, 818.2, 818.4, 818.6, 818.7, 818.8; Kizer v. County
of San Mateo (1991) 53 Cal.3d 139, 145 (Kizer).) Under the Tort
Claims Act, sovereign immunity remains the rule in California,
and governmental liability is limited to exceptions specifically
set forth in statute. (Colome v. State Athletic Com. (1996)
47 Cal.App.4th 1444, 1454–1455; Elson v. Public Utilities
Commission (1975) 51 Cal.App.3d 577, 584–585.)
Section 818, one of the statutes enacted as part of the
Tort Claims Act, provides: “Notwithstanding any other provision
of law, a public entity is not liable for damages awarded under
Section 3294 of the Civil Code or other damages imposed
primarily for the sake of example and by way of punishing
the defendant.”1 Read in the context of the Tort Claims Act,
section 818 means “a plaintiff who alleges injury caused by
1 Civil Code section 3294, subdivision (a) provides: “In an
action for the breach of an obligation not arising from contract,
where it is proven by clear and convincing evidence that the
defendant has been guilty of oppression, fraud, or malice, the
plaintiff, in addition to the actual damages, may recover damages
for the sake of example and by way of punishing the defendant.”
6
a public entity may be entitled to actual damages for that injury,
but not punitive damages.” (Kizer, supra, 53 Cal.3d at p. 145,
italics added.) Section 818 “was intended to limit the state’s
waiver of sovereign immunity and, therefore, to limit its exposure
to liability for actual compensatory damages in tort cases.”
(Kizer, at p. 146, italics added.)
Punitive damages and compensatory damages serve
different purposes. (Marron v. Superior Court (2003) 108
Cal.App.4th 1049, 1059 (Marron), citing Cooper Industries, Inc.
v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 432.)
Compensatory damages “are intended to redress the concrete
loss that the plaintiff has suffered by reason of the defendant’s
wrongful conduct.” (Cooper Industries, at p. 432.) In contrast,
punitive damages “operate as ‘private fines’ intended to punish
the defendant and to deter future wrongdoing.” (Ibid.) In
determining compensatory damages, “[a] jury’s assessment of the
extent of a plaintiff's injury is essentially a factual determination,
whereas its imposition of punitive damages is an expression of
its moral condemnation.” (Ibid.; Marron, at p. 1059.) Punitive
damages are not compensation for loss or injury. (Marron, at
p. 1059.)
“[S]ection 818 of the Government Code, in referring to
‘damages imposed primarily for the sake of example and by way
of punishing the defendant’ contemplates . . . punitive damages
[that] are designed to punish the defendant rather than to
compensate the plaintiff. Punitive damages are by definition
in addition to actual damages and beyond the equivalent of harm
done.” (State Dept. of Corrections v. Workmen’s Comp. App. Bd.
7
(1971) 5 Cal.3d 885, 891 (State Dept. of Corrections); Marron,
at p. 1060.) In contrast, “[d]amages which are punitive in nature,
but not ‘simply’ or solely punitive in that they fulfill ‘legitimate
and fully justified compensatory functions,’ have been held not
to be punitive damages within the meaning of section 818 of
the Government Code.” (People ex rel. Younger v. Superior Ct.,
Alameda Cty. (1976) 16 Cal.3d 30, 35–36 (Younger), first and
second italics added; see Helfend v. Southern California Rapid
Transit Dist. (1970) 2 Cal.3d 1, 13, 14–16 (Helfend); State Dept.
of Corrections, at p. 891.)
Helfend and State Dept. of Corrections are instructive.
In Helfend, our Supreme Court considered whether the collateral
source rule produced “punitive” damage awards that could not
be imposed against a governmental entity under section 818. 2
(Helfend, supra, 2 Cal.3d at pp. 8–10.) Although the rule has
a punitive aspect, in that it requires a tortfeasor to pay
damages for an injury that an independent source has already
compensated, the Helfend court held enforcement of the rule
against a public entity nonetheless serves a compensatory
function permitted under section 818. This is so, the court
reasoned, because a collateral source, like insurance, is “a form
of investment, the benefits of which become payable without
respect to any other possible source of funds.” (Helfend, at p. 10.)
2 The collateral source rule holds that “if an injured party
receives some compensation for his injuries from a source wholly
independent of the tortfeasor, such payment should not be
deducted from the damages which the plaintiff would otherwise
collect from the tortfeasor.” (Helfend, supra, 2 Cal.3d at p. 6.)
8
Thus, enforcing the collateral source rule does not have the effect
of paying a plaintiff compensation greater than that to which
he is entitled for his investment. On the contrary, were a public
entity tortfeasor permitted “to mitigate damages with payments
from [a] plaintiff’s insurance, [the] plaintiff would be in a position
inferior to that of having bought no insurance, because his
payment of premiums would have earned no benefit.” (Ibid.,
italics added.)
In State Dept. of Corrections, our Supreme Court held
Labor Code section 4553, which requires the amount of
recoverable workers’ compensation to be increased one-half
where the employer’s serious and willful misconduct causes
an employee’s injury, does not impose punitive damages under
section 818. (State Dept. of Corrections, supra, 5 Cal.3d at
p. 891.) While the statute has a punitive aspect, in that it
requires the employer “to pay a higher amount of compensation
by reason of his serious and wilful misconduct,” the court
nonetheless reasoned it was designed not “to penalize an
employer,” but “to provide more nearly full compensation to
an injured employee.” (Id. at pp. 889–890.) As our high court
explained, the workers’ compensation act’s “ ‘ordinary schedule
of compensation’ ” is “ ‘not considered to be full and complete
compensation for the injuries received,’ ” because the “ ‘risk of
actual injuries’ ” under the system is “ ‘shared by employer and
employee.’ ” (Id. at p. 889.) As such, the Legislature rationally
deemed it “ ‘just if the injury was caused by willful misconduct
of the employer [that] he should be made to pay a greater
proportion of the burden,’ ” and, in that sense, “ ‘the additional
9
allowance is really for additional compensation . . . , and not for
exemplary damages.’ ” (Ibid.; E. Clemens Horst Co. v. Industrial
Accident Commission (1920) 184 Cal. 180, 193.) Because the
statute has the effect of “more fully compensating the plaintiff
for an industrial injury rather than penalizing the employer,”
the court held imposition of the increased award against a public
entity does not violate section 818. (State Dept. of Corrections,
at p. 891.)
This distinction between damages that are primarily
punitive and those that also serve a compensatory function has
“a fair and substantial relation” to the object of the Tort Claims
Act and to promotion of “a number of legitimate state interests.”
(Stanley v. City and County of San Francisco (1975) 48
Cal.App.3d 575, 581.) “This is in part because punitive damages,
unlike compensatory damages, are not recoverable as a matter
of right.” (McAllister v. South Coast Air Quality Etc. Dist.
(1986) 183 Cal.App.3d 653, 659–660 (McAllister), citing Finney
v. Lockhart (1950) 35 Cal.2d 161, 163 and Brewer v. Second
Baptist Church (1948) 32 Cal.2d 791, 800.) “The basic
justification for a punitive award is to punish the offender and
to deter others from committing similar wrongs.” (McAllister, at
p. 660.) But this “ ‘deterrence element . . . adds little justification
for [an exemplary damages] award against a [public entity].
In the first place it is to be assumed that the municipal officials
will do their duty and if discipline of a wrongdoing employee is
indicated, appropriate measures will be taken without a punitive
award. [¶] Further, a huge award against [a public entity] would
not necessarily deter other employees who generally would be
10
unlikely to be able to pay a judgment assessed against them
personally.’ ” (Ibid.) On the contrary, “ ‘[s]ince punishment
is the objective, the people who would bear the burden of the
award—the citizens—are the self-same group who are expected
to benefit from the public example which the punishment makes
of the wrongdoer.’ ” (Ibid.)
Thus, the Tort Claims Act draws a rational distinction
by maintaining sovereign immunity from punitive damages that
are “awarded to punish the defendant and to deter [outrageous]
conduct in the future,” while waiving immunity for normal tort
damages that are “awarded for the purpose of compensating the
plaintiff for injury suffered, i.e., restoring the plaintiff as nearly
as possible to his or her former position.” (Kizer, supra, 53 Cal.3d
at pp. 146–147; McAllister, supra, 183 Cal.App.3d at pp. 659–661
[section 818 does not violate constitutional equal protection
clause].) “Punitive or exemplary damages ‘are not intended to
compensate the injured party, but rather to punish the tortfeasor
whose wrongful action was intentional or malicious.’ ” (Kizer, at
p. 147.) Compensation is the essential condition. Tort damages
that have a compensatory function, although also having a
punitive aspect, are not “imposed primarily for the sake of
example and by way of punishing the defendant” (Gov. Code,
§ 818), and a public entity is liable under the Tort Claims Act
for the injuries those damages serve to compensate. (Kizer, at
pp. 145–147; Younger, supra, 16 Cal.3d at pp. 35–36; State Dept.
of Corrections, supra, 5 Cal.3d at pp. 890–891; Helfend, supra,
2 Cal.3d at p. 16.)
11
2. Treble Damages under Section 340.1 Are Imposed
to Punish and Deter Cover Ups, Not to Compensate
a Plaintiff for Additional Injuries Suffered as a
Result of a Cover Up
Section 340.1 principally governs the period within which
a plaintiff must bring a tort claim to recover damages suffered
due to childhood sexual assault. (Quarry v. Doe I (2012) 53
Cal.4th 945, 952, 979.) In 2019, the Legislature amended the
statute to extend the limitations period and, as relevant to this
proceeding, to provide for the recovery of up to treble damages
when a defendant’s cover up of a minor’s sexual assault has
resulted in the subsequent sexual assault of the plaintiff.
(Assem. Bill No. 218 (2019-2020 Reg. Sess.) § 1.)
Section 340.1, subdivision (b)(1) provides: “In an action
[for recovery of damages suffered as a result of childhood sexual
assault], a person who is sexually assaulted and proves it was as
the result of a cover up may recover up to treble damages against
a defendant who is found to have covered up the sexual assault
of a minor, unless prohibited by another law.” Because punitive
damages are, by definition, “in addition to actual damages,”
the imposition of up to treble a plaintiff’s actual damages under
the statute plainly has a punitive component. (State Dept. of
Corrections, supra, 5 Cal.3d at p. 888; Civ. Code, § 3294, subd.
(a); see also Imperial Merchant Services, Inc. v. Hunt (2009)
47 Cal.4th 381, 394 (Imperial Merchant) [“Treble damages are
punitive in nature.”]; Harris v. Capital Growth Investors XIV
(1991) 52 Cal.3d 1142, 1172 [Unruh Civil Rights Act damages
provision “allowing for an exemplary award of up to treble the
12
actual damages suffered with a stated minimum amount reveals
a desire to punish intentional and morally offensive conduct.”].)
However, the critical question under section 818 is whether
these damages are primarily punitive—that is, whether they are
“simply and solely punitive” in that they do not “fulfill legitimate
compensatory functions.” (Younger, supra, 16 Cal.3d at p. 39;
Kizer, supra, 53 Cal.3d at p. 145.)
Plaintiff maintains the legislative history of Assembly Bill
No. 218 (A.B. 218)—the legislation that added treble damages to
section 340.1—establishes the provision’s compensatory purpose.
Specifically, she relies upon a statement attributed to the bill’s
author in the final Assembly Floor Analysis of the legislation
before it became law. The statement explains the “recovery
of up to treble damages from the defendant who covered up
sexual assault” is “clearly needed both to compensate victims
who never should have been victims- and would not have been
if past sexual assault had been properly brought to light- and
also as an effective deterrent against individuals and entities who
have chosen to protect the perpetrators of sexual assault over
the victims.” (Assem. Floor Analysis, Analysis of Assem. Bill
No. 218 (2019-2020 Reg. Sess.) as amended Aug. 30, 2019, p. 2,
italics added.) While the same statement shows up in several
other Assembly Floor Analyses for A.B. 218, it appears to be the
only reference to compensation related to treble damages in all
the legislative history materials the parties have offered. 3
3 We granted LAUSD’s request for judicial notice of the
legislative history materials presented to the trial court, and
deferred ruling on three subsequent requests for judicial notice
13
Established rules of statutory construction require that we
ascertain the intent of the enacting legislative body so we may
adopt the construction that best effectuates the law’s purpose.
(Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709,
715.) We first examine the words of the statute themselves
because the statutory language is generally the most reliable
indicator of legislative intent. (Ibid.) If the language is clear
on its face, we generally “ ‘do not inquire what the legislature
meant; we ask only what the statute means.’ ” (J.A. Jones
Construction Co. v. Superior Court (1994) 27 Cal.App.4th 1568,
1575 (J.A. Jones); see also Code Civ. Proc., § 1858 [“In the
construction of a statute or instrument, the office of the Judge is
simply to ascertain and declare what is in terms or in substance
filed by LAUSD, plaintiff, and amicus curiae National Center for
the Victims of Crime. We grant LAUSD’s request to take judicial
notice of the bill history for A.B. 218 as a record of official acts
of the Legislature. (Evid. Code, § 452, subd. (c).) We also grant
plaintiff’s request as to the Fact Sheet prepared by the office
of the bill’s author, but we deny the request with respect to the
news articles. (See Carter v. California Dept. of Veterans Affairs
(2006) 38 Cal.4th 914, 928 [taking judicial notice of bill author’s
Fact Sheet].) The news articles cannot be used to establish the
truth of the matter asserted and they do not provide additional
information relevant to a material issue in this case. (See Doe
v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4.) For
the same reasons, we deny the amicus’s request to take judicial
notice of several journal articles discussing the psychological
impact of childhood sexual abuse. We also deny plaintiff’s
request to take judicial notice of a letter to members of the
Senate voicing opposition to A.B. 218 unless amended. (See In re
Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39, 47, fn. 6;
McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1161, fn. 3.)
14
contained therein, not to insert what has been omitted, or to omit
what has been inserted . . . .”].)
Ambiguity is a different matter. When confronted with
ambiguous statutory text, it may be appropriate to look to
extrinsic sources, such as legislative history, for evidence of
the Legislature’s intent. (J.A. Jones, supra, 27 Cal.App.4th at
p. 1576; see also Code Civ. Proc., § 1859 [“In the construction
of a statute the intention of the Legislature . . . is to be pursued,
if possible . . . .” (Italics added.)].) But even then, we are mindful
that “reading the tea leaves of legislative history is often no easy
matter.” (J.A. Jones, at p. 1578.) Assuming there is such a thing
as “meaningful collective intent, courts can get it wrong when
what they have before them is a motley collection of authors’
statements, committee reports, internal memoranda and lobbyist
letters.” (Ibid.) Related to this problem is the reality, on the
one hand, that “legislators are often ‘blissfully unaware of the
existence’ of the issue with which the court must grapple,” and,
on the other, that “ambiguity may be the deliberate outcome of
the legislative process.” (Ibid.)4 In view of these considerations,
4 As the J.A. Jones court noted, judicial use of legislative
history has come under formidable criticisms, including that
“[l]egislative history has become contaminated by documents
which are more aimed at influencing the judiciary after the
bill is passed than explaining to the rest of the legislature
what the bill is about before it is passed.” (J.A. Jones, supra,
27 Cal.App.4th at p. 1577; see Eskridge, The New Textualism
(1990) 37 UCLA L.Rev. 621, 643–644 [describing recurring
skepticism about “the reliability of traditional linchpins of
statutory interpretation, such as committee reports and sponsor’s
statements,” as “specific explanations in those sources may well
15
“the wisest course is to rely on legislative history only when
that history itself is unambiguous.” (Id. at pp. 1578–1579, citing
Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 831
[legislative “ ‘purpose’ ” controlled where it had been stated in
“ ‘unmistakable terms’ ”].)
A solitary statement repeated in some legislative analyses
that treble damages are necessary to compensate victims of a
cover up does not unambiguously demonstrate the Legislature
in fact added the provision to section 340.1 for that purpose.
Critically, the statement does not identify what injury these
treble damages are needed to compensate. It refers only to
“victims who never should have been victims,” implying that
the bill’s author had the predicate sexual assault itself in mind—
not some added injury resulting from the cover up that requires
an added award of treble the plaintiff’s actual damages.
Moreover, the moral condemnation voiced in the statement—
its invocation of “victims who never should have been victims”
and “individuals and entities who have chosen to protect the
perpetrators of sexual assault over the victims”—while plainly
warranted, indicates the bill’s author may have had a primarily
punitive motivation for imposing treble damages in response to
be strategic, rather than sincere, expressions of the statute’s
meaning”].) More fundamentally, critics have observed that
“the idea that the diverse membership of a democratically elected
legislature can ever have one collective ‘intent’ on anything is
a myth; if there is ambiguity it is because the legislature either
could not agree on clearer language or because it made the
deliberate choice to be ambiguous—in effect, the only ‘intent’
is to pass the matter on to the courts.” (J.A. Jones, at p. 1577.)
16
patently heinous conduct. Whether this was indeed the author’s
motivation is beside the point. The fact that this solitary
statement is open to such inferences is enough for us to decline
to embrace it as an unambiguous expression of the Legislature’s
intent. (See J.A. Jones, supra, 27 Cal.App.4th at pp. 1578–1579.)
In her return, plaintiff attempts to answer one of the
questions left open by the proffered legislative history. She
maintains the treble damages provision is needed, not for the
sexual abuse itself, but to compensate for “the additional harm
caused [to] a victim of sexual abuse who learns that the abuse
was entirely avoidable by an entity defendant.” (Italics added.)
Elsewhere in her return plaintiff similarly contends the
treble damages provision has a “compensatory element for the
indescribable and unquantifiable damage suffered by a child who
learns that the very entity charged with caring for him or her
not only knew that the abuser had a propensity for sexual abuse,
but also actively covered[ ]up evidence of such prior abuse.”
It will no doubt be the case in some horrific instances that
the victim of a childhood sexual assault will suffer additional
psychological trauma upon learning those charged with his or
her care and protection in effect facilitated the assault by aiding
its perpetrator in a deliberate cover up of past sexual abuse.
However, while the manifestations of this trauma may be
largely subjective, damages to compensate for it are by no
means unquantifiable, nor are they unavailable to the victim
under normal tort damages principles.
“The general rule of damages in tort is that the injured
party may recover for all detriment caused whether it could
17
have been anticipated or not. [Citations.] In accordance with
the general rule, it is settled in this state that mental suffering
constitutes an aggravation of damages when it naturally ensues
from the act complained of, and in this connection mental
suffering includes nervousness, grief, anxiety, worry, shock,
humiliation and indignity as well as physical pain.” (Crisci
v. Security Insurance Co. of New Haven, Conn. (1967) 66
Cal.2d 425, 433, italics added.) Admittedly, terms like “fright,
nervousness, grief, anxiety, worry, mortification, shock,
humiliation, indignity, embarrassment, apprehension, terror
or ordeal . . . refer to subjective states, representing a detriment
which can be translated into monetary loss only with great
difficulty. [Citations.] But the detriment, nevertheless, is a
genuine one that requires compensation [citations], and the
issue generally must be resolved by the ‘impartial conscience
and judgment of jurors who may be expected to act reasonably,
intelligently and in harmony with the evidence.’ ” (Capelouto
v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892–893.)
Consistent with these principles, the standard jury
instruction for tort damages tells jurors they must award
a plaintiff, upon proof of the defendant’s liability, full
“compensation” in the form of monetary “ ‘damages’ ” for “each
item of harm that was caused by [the defendant’s] wrongful
conduct.” (CACI No. 3900, italics added.) This includes an award
of noneconomic damages for all past and future physical pain,
mental suffering, loss of enjoyment of life, disfigurement,
physical impairment, inconvenience, grief, anxiety, humiliation,
and emotional distress. (CACI No. 3905A.)
18
Plaintiff does not identify any injury from a childhood
sexual assault or cover up for which normal tort damages fail
to provide full compensation. Nor does the legislative history
she presents. And we are unable to discern any uncompensated
injury or unfulfilled right to compensation ourselves. 5 (Cf. State
Dept. of Corrections, supra, 5 Cal.3d at pp. 889–891; Helfend,
supra, 2 Cal.3d at p. 10.) On the contrary, the treble damages
imposed under section 340.1 are, by definition, in addition to
a plaintiff’s actual damages, and the statute necessarily awards
the plaintiff, upon proof of a cover up, damages “beyond the
equivalent of harm done.” (State Dept. of Corrections, at p. 891;
5 Amicus curiae National Center for the Victims of Crime
suggests the treble damages provision works to compensate
a victim more fully in cases when a school district’s cover up
results in sexual assault by “[a]llowing the finder of fact to use
a damages multiplier to redistribute the collectability of the
damages award from the judgment-proof former teacher to
the morally culpable employer.” The premise for the argument
is amicus’s assertion that jurors are likely to allocate a greater
portion of the fault for childhood sexual abuse to the school
employee who committed the abuse than to the institutional
defendant that perpetrated a cover up. Suffice it to say, there
is no evidence in the record to support this assertion. Moreover,
as our Supreme Court recently reaffirmed that “California
principles of comparative fault have never required or authorized
the reduction of an intentional tortfeasor’s liability based on the
acts of others,” amicus’s concern that a victim could be denied
the full share of compensation attributable to the injury caused
by an institution’s intentional cover up is unfounded. (B.B. v.
County of Los Angeles (2020) 10 Cal.5th 1, 24 [holding Civil Code
section 1431.2, subdivision (a) does not require reduction of an
intentional tortfeasor’s liability for noneconomic damages].)
19
Imperial Merchant, supra, 47 Cal.4th at p. 394 [“Treble damages
are punitive in nature [citation] and punitive damages generally
inure only to the person damaged.”].) Because the treble
damages provision under section 340.1 plainly is designed to
punish those who cover up childhood sexual abuse and thereby
to deter future cover ups, rather than to compensate victims,
the imposition of these damages is primarily punitive under
section 818. (State Dept. of Corrections, at p. 891.)
3. The Tort Claims Act Governs Plaintiff’s Tort Claims
Against LAUSD; Authorities Concerning Civil
Penalties Imposed to Enforce a Regulatory Scheme
Are Inapposite
Even absent a compensatory function, plaintiff argues
section 340.1’s treble damages provision is nevertheless beyond
the purview of section 818 because it advances a nonpunitive
“public policy objective.” She maintains the provision’s focus on
cover ups reflects a legislative imperative to bring past childhood
sexual abuse to light, and she argues the availability of treble
damages advances this objective by offering victims an incentive
to come forward to “end the pattern of abuse.” Specifically,
plaintiff contends treble damages are needed to “encourage those
victims who experienced inappropriate encounters with sexual
predators that may not have in-and-of themselves been egregious
sexual abuse to come forward in a civil action.” In those cases,
she argues, “inappropriate conduct by a teacher may not give rise
to substantial damage awards,” but if damages are “enhanced
up to three times the actual damages, a victim may be more
likely to come forward which may help unravel an institution’s
20
efforts to cover[ ]up and hide evidence of prior sexual assaults
or inappropriate behavior.”
Plaintiff’s argument rests on a misapprehension of
controlling Supreme Court authority. As we will explain, our
high court has held section 818 does not apply to civil penalties
that have the primary purpose of securing obedience to statutes
and regulations imposed to assure important public policy
objectives because those penalties lie outside the perimeters of
a tort action and therefore are not subject to the Tort Claims Act.
However, the court has not recognized a similar exception for
exemplary damages that may be imposed in a statutorily created
tort action like the one plaintiff has brought under section 340.1.
In a tort action, as we have discussed, the essential condition that
separates primarily punitive damages, for which a public entity
maintains sovereign immunity under section 818, and normal
tort damages having a punitive component, for which a public
entity waives such immunity, is that the latter class of damages
serves a compensatory function. Absent a compensatory function,
punitive damages are just that—simply and solely punitive—
under section 818.
In Kizer, our Supreme Court directly addressed whether
“the Tort Claims Act in general, and Government Code section
818 in particular,” are applicable to “statutory civil penalties
imposed” under “a detailed regulatory scheme.” (Kizer, supra,
53 Cal.3d at pp. 144–146.) The writ proceeding arose from a suit
filed by the State Department of Health Services (Department)
against the County of San Mateo’s Department of Health
Services (County) to assess civil penalties under the Long-Term
21
Care, Health, Safety, and Security Act of 1973. (Kizer, at pp. 141,
143–144.) The Department had licensed the County to operate
a long-term health care facility that violated patient care
regulations resulting in a patient’s death. (Id. at pp. 141–144.)
The County demurred, arguing the penalties were punitive or
exemplary damages and section 818 forbids the imposition
of such damages against a public entity. (Kizer, at p. 144.)
The trial court sustained the demurrer and the appellate court
affirmed, concluding the statutory penalty scheme did “not have
a compensatory function” and, therefore, the high court’s prior
holding in Younger dictated that the penalties were punitive
under section 818. (Kizer, at p. 144; cf. Younger, supra, 16 Cal.3d
at p. 39 [“civil penalties imposed pursuant to [a statute] are not
simply and solely punitive in nature [if they] fulfill legitimate
compensatory functions and are not punitive damages within
the meaning of Government Code section 818”].) The Supreme
Court reversed.
Our Supreme Court held “the Tort Claims Act in general,
and Government Code section 818 in particular, are not
applicable” to civil penalties like those at issue in Kizer. (Kizer,
supra, 53 Cal.3d at p. 144.) Addressing its prior holding in
Younger, the high court explained that, in Younger, “it was not
necessary to the resolution of the case to address the question of
whether the Tort Claims Act was applicable to the civil penalties
imposed” there, because those “penalties were compensatory as
well as punitive” and, as such “they were not punitive damages
22
within the meaning of Government Code section 818.”6 (Kizer,
at pp. 144–145.) “Unlike Younger,” the Kizer court emphasized,
“the present case specifically raises the question of whether the
Tort Claims Act applies to the statutory civil penalties imposed
by the Department.” (Id. at p. 145.) In answering that question,
the court “conclude[d] that nothing in the Tort Claims Act
suggests that Government Code section 818 was intended to
apply to statutory civil penalties such as the penalties at issue
here.” (Ibid.)
“The Tort Claims Act,” the Kizer court emphasized,
“specifies the cases in which a public entity is liable for injuries
arising out of its acts or omissions, or those of its employees.”
(Kizer, supra, 53 Cal.3d at p. 145.) “The Tort Claims Act
defines ‘injury’ as ‘death, injury to a person, damage to or loss
of property, or any other injury that a person may suffer to his
person, reputation, character, feelings or estate, of such nature
6 Younger considered whether section 818 permitted civil
penalties under the Water Code to be enforced against the Port
of Oakland, a public entity, for an oil spill. (Younger, supra,
16 Cal.3d at pp. 34–39.) Although the penalty was admittedly
punitive in that it sought to deter oil spills, the Younger court
concluded the money collected was “not simply and solely
punitive in nature” because it also served to “compensate the
people of this state” for the unquantifiable damage to public
waters and wildlife and to defray some of the costs of cleaning
up waste and abating further damages. (Id. at pp. 37–39.) As
the Kizer court explained, “[i]n essence, the Younger analysis
presumed that Government Code section 818 was applicable and
concluded that even if the Tort Claims Act applied, the port was
liable for the civil penalties.” (Kizer, supra, 53 Cal.3d at p. 144.)
23
that it would be actionable if inflicted by a private person.’ ”
(Ibid., quoting Gov. Code, § 810.8.) Thus, the Kizer court
explained, “Government Code section 818 in context means that,
under the Tort Claims Act, a plaintiff who alleges injury caused
by a public entity may be entitled to actual damages for that
injury, but not punitive damages.” (Kizer, at p. 145, italics
added.) Consistent with that interpretation, our Supreme Court
observed there was “nothing in the Tort Claims Act to suggest
that Government Code section 818 was intended to apply to
statutory civil penalties designed to ensure compliance with
a detailed regulatory scheme, . . . even though they may have a
punitive effect.” (Id. at p. 146, italics added.) “The Department’s
citation enforcement action,” the Kizer court held, “lies outside
the perimeters of a tort action and therefore does not readily
lend itself to a liability analysis based on tort principles.”
(Ibid., italics added.)
Admittedly, this court’s past analysis of Kizer in
Los Angeles County Metropolitan Transportation Authority v.
Superior Court (2004) 123 Cal.App.4th 261 (LACMTA) failed to
appreciate this critical distinction between tort claims, which are
subject to the Tort Claims Act and section 818, and civil penalty
claims, which lie outside the purview of those laws. In LACMTA,
a different panel of this court considered whether section 818
exempts a public entity from liability for the $25,000 civil penalty
authorized under the Unruh Civil Rights Act for the denial of
certain specified rights. (LACMTA, at pp. 266–267; Civ. Code,
§ 52, subd. (b)(2).) For a number of independent reasons, the
LACMTA court correctly concluded section 818 did not preclude
24
imposition of the penalty; however, as relevant here, one of those
reasons was that the civil penalty served a “nonpunitive” purpose
“to encourage private parties to seek redress through the civil
justice system by making it more economically attractive for
them to sue.”7 (LACMTA, at pp. 271–272.) The LACMTA court
based this holding on Kizer, which the court read as creating an
exception to section 818 when a civil penalty’s “primary purpose
[is] ‘to secure obedience to statutes and regulations imposed to
assure important public policy objectives.’ ” (LACMTA, at p. 274,
7 The LACMTA court also concluded section 818 did
not preclude imposition of the civil penalties because (1) the
Unruh Act “separately provid[ed] for exemplary damages and
[the] civil penalty, [so] the Legislature obviously intended for
the two categories of relief to be distinct from one another”; and
(2) the penalty served to provide a “minimum compensatory
recovery even in those cases where the plaintiff can show little
or no actual damages.” (LACMTA, supra, 123 Cal.App.4th at
pp. 267, 271, second italics added.) The former reason was
plainly correct and consistent with the Kizer court’s holding that
civil penalties are beyond the purview of the Tort Claims Act and
section 818. (Kizer, supra, 53 Cal.3d at pp. 145–146.) The latter
reason is more dubious in view of our Supreme Court’s clear
pronouncement that damages are punitive under section 818
when they are “in addition to actual damages and beyond the
equivalent of harm done.” (State Dept. of Corrections, supra,
5 Cal.3d at p. 891 & fn. 2, citing Rest., Contracts, § 342, com. a,
p. 561 [“All damages are in some degree punitive and preventive;
but they are not so called unless they exceed just compensation
measured by the harm suffered.”].)
25
quoting Kizer, supra, 53 Cal.3d at pp. 147–148.) This analysis
misread Kizer.8
As discussed, the Supreme Court in Kizer held section 818
does not apply to civil penalties because those penalties are
designed to provide a mechanism for enforcing a regulatory
scheme, not to redress tort “injury” within the meaning of
the Tort Claims Act. (Kizer, supra, 53 Cal.3d at pp. 145–146.)
Indeed, the passage quoted in LACMTA was part of the Kizer
court’s broader discussion of the differences between statutory
civil penalties and tort damages that the court catalogued
to emphasize this point. The paragraph that precedes the
discussion in Kizer makes clear that it was not the vindication of
important public policy objectives that removed the civil penalties
8 The LACMTA court also opined that the “critical reason
the penalties were sustained by the Kizer court, despite their
punitive aspect, was that they served a compensatory function.”
(LACMTA, supra, 123 Cal.App.4th at p. 274.) This too
admittedly misreads Kizer. As the Supreme Court made clear,
the critical distinction between the civil penalties in Kizer and
those the high court previously addressed in Younger was that
the “Water Code penalties [in Younger] were compensatory as
well as punitive,” while the statutory penalty scheme in Kizer
did “not have a compensatory function.” (Kizer, supra, 53 Cal.3d
at pp. 144–145.) Thus, it was “not necessary” in Younger
“to address the question of whether the Tort Claims Act was
applicable to the civil penalties imposed under the Water Code.”
(Kizer, at p. 144.) But “[u]nlike Younger,” because the civil
penalties in Kizer did not have a compensatory function, the
case “specifically raise[d] the question of whether the Tort
Claims Act applies to the statutory civil penalties imposed
by the Department.” (Id. at p. 145.)
26
from section 818’s purview; rather, it was the fact that those
sanctions were not predicated on a tort injury:
“In our view, Government Code section 818 was
not intended to proscribe all punitive sanctions.
Instead, the section was intended to limit
the state’s waiver of sovereign immunity and,
therefore, to limit its exposure to liability for
actual compensatory damages in tort cases.
The Tort Claims Act must be read against the
background of general tort law. [Citation.]
Against that background, the Tort Claims Act
does not apply to the type of sanction that the
Legislature has imposed in this case to enforce
the Act’s regulatory scheme. Under the Long-
Term Care, Health, Safety, and Security Act
of 1973, the essential prerequisite to liability is
a violation of some minimum health or safety
standard rather than ‘injury’ or ‘damage.’
Consequently, we do not believe that the
Legislature intended the immunity created
by Government Code section 818 to apply to
statutory civil penalties expressly designed to
enforce minimum health and safety standards.”
(Kizer, at p. 146, italics added, fn. omitted; see also Burden v.
County of Santa Clara (2000) 81 Cal.App.4th 244, 252–253
[recognizing Kizer is inapplicable because “Labor Code section
970 creates a statutory tort cause of action”].)
27
Even if we agreed with plaintiff that the treble damages
provision might incentivize victims to file claims for childhood
sexual assault, this supposed public policy objective does not
remove the enhanced damages provision from section 818’s
purview. Treble damages under section 340.1 are available
only in “an action for recovery of damages suffered as a result
of childhood sexual assault” (Code Civ. Proc., § 340.1, subds. (a)
& (b)(1))—in other words, in a tort action for damages subject
to the Tort Claims Act and section 818. (Kizer, supra, 53 Cal.3d
at pp. 145–146.) Unlike the civil penalties at issue in Kizer, to
obtain treble damages under section 340.1, plaintiff must prove
she suffered actual harm. (Cf. Kizer, at p. 147 [“Civil penalties
under the Act, unlike damages, require no showing of actual
harm per se.”].) Unlike civil penalties, treble damages under
section 340.1 require the defendant to have engaged in willful
misconduct by deliberately covering up past childhood sexual
abuse. (Cf. Kizer, at p. 147 [“The civil penalties under the Act
can be imposed for negligent conduct and it is not necessary . . .
[to] prove that a health facility’s actions in violating specific
health and safety regulations are malicious, wilful, or even
intentional.”].) And, critically, while civil damages are
mandatory upon proof of a violation, “up to treble damages”
under section 340.1 are imposed at the discretion of the fact
finder upon proof that childhood sexual abuse resulted from
the defendant’s cover up. (Code Civ. Proc., § 340.1, subd. (b)(1),
italics added; Kizer, at p. 148, citing Beeman v. Burling (1990)
216 Cal.App.3d 1586, 1598 [“Thus, while both exemplary
damages and statutory damages serve to motivate compliance
28
with the law and punish wrongdoers, they are distinct legal
concepts, one of which is entrusted to the factfinder, the other
to the Legislature.”]; see also Marron, supra, 108 Cal.App.4th
at p. 1059 [a jury’s “ ‘imposition of punitive damages is an
expression of its moral condemnation’ ”].)
As our Supreme Court’s authorities uniformly teach:
“Government Code section 818 in context means that, under
the Tort Claims Act, a plaintiff who alleges injury caused by a
public entity may be entitled to actual damages for that injury,
but not punitive damages.” (Kizer, supra, 53 Cal.3d at p. 145.)
In referring to “ ‘damages imposed primarily for the sake of
example and by way of punishing the defendant,’ ” section 818
“contemplates . . . punitive damages [that] are designed to punish
the defendant rather than to compensate the plaintiff.” (State
Dept. of Corrections, supra, 5 Cal.3d at p. 891.) All punitive
awards serve a public policy objective by deterring future
misconduct; however, it is only when those damages also “fulfill
‘legitimate and fully justified compensatory functions’ ” that
they are to be regarded as “not ‘simply’ or solely punitive” under
section 818. (Younger, supra, 16 Cal.3d at pp. 35–36, italics
added.) The treble damages provision in section 340.1 does not
have a compensatory function; its primary purpose is to punish
past childhood sexual abuse cover ups to deter future ones.
While this is a worthy public policy objective, it is not one for
which the state has waived sovereign immunity under the
Tort Claims Act. (See Kizer, at pp. 145–146.) A public entity
like LAUSD is immune from these enhanced damages under
section 818.
29
DISPOSITION
The writ is granted. The trial court is directed to enter
an order granting LAUSD’s motion to strike the treble damages
request and related allegations of the complaint. LAUSD is
entitled to its costs, if any.
CERTIFIED FOR PUBLICATION
EGERTON, J.
We concur:
EDMON, P. J.
SALTER, J.*
* Judge of the Orange County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
30