FACTUAL AND PROCEDURAL BACKGROUND
Doe's first amended complaint alleges that, while she was a 15-year-old sophomore at a high school within the district, she was molested by a teacher, Jeremy Monn, between April 2013 and July 2013. Monn demanded that Doe keep the facts of the sexual abuse a secret. There were red flags in the teacher's conduct that should have caused the district a reasonable suspicion that Monn was engaging in sexual abuse with students. Petitioners counseled Monn about his behavior, but failed to report it to law enforcement authorities. Petitioners suggested Monn find еmployment elsewhere; he became a
Petitioners demurred to the first amended complaint, asserting that, although section 905(m) exempted Doe's claim from the claim presentation requirements of the Act, section 935 authorized a local public entity, such as the district, to impose its own claim presentation requirement on claims exempted by section 905 ; the district had enacted a policy and regulation imposing such a claim presentation requirement, and Doe had failed to comply with it. Petitioners contended Doe's action against them was barred by her failure to
Doe opposed the demurrer. The trial court overruled the demurrer, concluding the Legislature's intent in enacting section 905(m) was to exempt claims of childhood sexual abuse from the requirement of presenting a government claim. The trial court stated there was no authority in section 935 allowing the district's ordinances or regulations to circumvent that exemption. Petitioners brought this petition for a writ of mandate to overturn the trial court's decision, asserting sections 905 and 935 are clear and, although section 905(m) exempts causes of action for childhood sexual abuse from the state-imposed claim presentation requirement, section 935 authorizes local public entities to impose their own claim presentation requirements, which the district did. Because Doe did not comply with the district's claim presentation requirement, petitioners contend her action is barred. We issued an order to show cause why the relief sought should not be granted.
I. Review of Order Overruling Demurrer
" 'An order overruling a demurrer is not directly appealable, but may be reviewed on appeal from the final judgment. [Citation.] Appeal is presumed to be an adequate remedy and writ review is rarely granted unless a significant issue of law is raised, or resolution of the issue would result in a final disposition as to the petitioner.' " ( Boy Scouts of America National Foundation v. Superior Court (2012)
"A demurrer tests the legal sufficiency of the factual allegations in a complaint." ( Regents of University of California v. Superior Court (2013)
II. Childhood Sexual Abuse
"Historically, claims of childhood sexual abuse were governed by a one-year statute of limitations," but the statute was tolled until the child reach the age of majority. (
The current version of Code of Civil Procedure section 340.1, subdivision (a), provides:
"(a) In an action for recovеry of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later, for any of the following actions:
"(1) An action against any person for committing an act of childhood sexual abuse.
"(2) An action for liability against any person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.
"(3) An action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff." ( Code Civ. Proc., § 340.1, subd. (a).)
III. Government Claim Presentation Requirements
The intent of the Act " 'is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.' " ( Brown v. Poway Unified School Dist. (1993)
" Government Code section 905 requires that 'all claims for money or damages against local public entities' be presented to the responsible public
Under the Act, "failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity." ( State of California v. Superior Court (Bodde ) (2004)
Section 905 lists 15 exceptions to the requirement that a claim be presented to a local public entity before an action for money or damages may be filed against it. One of the exceptions, which was аdded to the statute in 2008, is for "[c]laims made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood
Section 935, however, provides in part:
"(a) Claims against a local public entity for money or damages which are excepted by Section 905 from Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of this part, and which are not governed by any other statutes or regulations expressly relating thereto, shall be governed by the procedure prescribed in any charter, ordinance or regulation adopted by the local public entity.
"(b) The procedure so prescribed may include a requirement that a claim be presented and acted upon as a prerequisite to suit thereon." ( § 935, subds. (a), (b).)
Petitioners contend the district enacted such a regulation on January 4, 2008, before
"Any and all claims for money or damages against the district shall be presented to and acted upon in accordance with Board policy and administrative regulation. [¶] ... [¶] Compliance with this policy and accompanying administrative regulation is a prerequisite to any court action, unless the claim is governed by statutes or regulations which expressly free the claimant from the obligation to comply with district policies and procedurеs and the claims procedures set forth in the Government Code."
Administrative Regulation 3320 provides, in part:
"The following time limitations apply to claims against the district:
"1. Claims for money or damages relating to a cause of action for death or for injury to person, personal property or growing crops shall be presented to the Governing Board not later than six months after the accrual of the cause of action. ( Government Code 905, 911.2 )
"2. Claims for money or damages specifically excepted from Government Code 905 shall be filed not later than six months after the accrual of the cause of action. ( Government Code 905, 911.2, 935 )"
IV. Statutory Interpretation
A. Plain meaning
Interpretation and application of statutes are questions of law, which we review de novo. ( Boy Scouts , supra ,
Section 905 provides: "There shall be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (сommencing with Section 910) all claims for money or damages against local public entities except any of the following ...." Section 945.4 provides that, with exceptions not relevant here, "no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this
The plain meaning of the language of section 935 permits the local public entity to impose its own claim presentation requirement on claims that section 905 excepts from the Act's claim presentation requirements, as long as the local claim presentation period is no shorter than the period prescribed by the Act (six months, in this case). ( §§ 935, subds. (a), (b), (c), 911.2, subd. (a).) The district's Board Policy 3320 and Administrative Regulation 3320 impose such a claim presentation requirement on claims exempted by section 905 from the claim presentation requirements of the Act. They require presentation of a claim falling within any of the 15 exempt categories of claims within six months after accrual of the cause of action.
Doe asks that we consider the legislative history of the enactment of subdivision (m) of section 905, but she has not identified any language of the section that is ambiguous and requires interpretation. If statutory language is clear and unambiguous, there is no need for construction; we resort to the legislative history of the statutory provision only if its terms are ambiguous. ( Ontario , supra ,
The parties disagree, however, about the effect of section 935 on Doe's claim presentation obligations. As the court in Ontario stated, " Sections 905 and 935, read together, are perfectly clear. Section 905 creates exemptions from the state-mandated claims procedure; section 935 permits local public entities to enact their own procedures to cover the exempted claims. Section 935, by its terms, covers all '[c]laims against a local public entity for money or damages which are excepted by Section 905.' " ( Ontario , supra , 12 Cal.App.4th at pp. 901-902,
Section 935, subdivision (a), provides that claims against local public entities that are excepted by section 905 from the Act's claim presentation requirement, "and which are not governed by any other statutes or regulations expressly relating thereto," are governed by the local public entity's procedures. Doe contends her claim under section 905(m) is governed by another statute, because section 905(m) expressly mentions Code of Civil Procedure section 340.1. We disagree.
Our interpretation is supported by California School Employees Assn. v. Azusa Unified School Dist . (1984)
Similarly, in Tapia v. County of San Bernardino (1994)
Doe argues that, unlike Azusa and Tapia , the statute here, Code of Civil Procedure section 340.1, governs the procedure for bringing a claim under that section. That section prescribes "the time for commencement of the action" for childhood sexual abuse. ( Code Civ. Proc., § 340.1, subd. (a).) It does not mention, much less prescribe, the time or procedure for presenting a claim to a public entity prior to commencing an action for childhood sexual abuse. We agree with Azusa and Tapia that the type of statute referred to in section 935, subdivision (a), is a statute that prescribes procedures, such as claim presentation, for processing claims against a local public entity prior to filing suit against it.
The Supreme Court in Shirk, supra,
We conclude Code of Civil Procedure section 340.1 is not another statute expressly relating to government claims for childhood sexual abuse against a local public entity, which governs such claims and precludes the local public entity from imposing its own claim presentation procedures on such claims pursuant to section 935.
B. Implied repeal of section 935
Doe's interpretation of section 905 as exempting childhood sexual abuse claims from local public entity claim presentation requirements, in addition to the claim presentation requirements set out in the Act, would effectively repeal or negate section 935 as to those claims. Doe has not pointed us to any language in either statute that would support this interpretation. Rather, she contends the legislative history of the amendment adding subdivision (m) to section 905 indicates this was the Legislature's intent. As previously discussed, however, Doe has not identified any ambiguous language in section 905(m) that requires interpretation by looking to the legislative history of that provision for the legislative intent. (See DaFonte v. Up-Right, Inc . (1992)
In 2008, the Legislature responded by enacting section 905(m). (Stats. 2008, ch. 383, § 1.) Doe presented two items she asserts express the legislative intent behind the 2008 amendment. A bill analysis by the Assembly Committee on Judiciary, dated June 24, 2008, stated: "This bill provides that childhood sexual abuse claims against local public entities are not subject to the Tort Claims Act."
In the legislative history of section 905(m) that was presented to this court, there was no mention of section 935.
"[T]he judicial function is simply to ascertain and declare what is in terms or in substance contained in the statute, not to insert what has been omitted, or omit what has been inserted. [Citation.] Courts cannot depart from the meaning of language in a statute which is free
"Generally, we will presume that the enactment of a statute does not impliedly repeal existing statutes." ( Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2009)
Doe argues that, even in Ontario, the court stated "that, in applying the 'plain meaning' rule, '[l]iteral construction should not prevail if it is contrary to the legislative intеnt apparent in the statute.' " ( Ontario , supra ,
Doe has not identified any ambiguity in the language of section 905(m) or section 935 that would warrant resort to the legislative history of either statute. We decline to hold that any portion of section 935 has been impliedly repealed by the enactment of section 905(m), when the two can be harmonized to give effect to both.
C. Legislative Counsel Bureau letter
Doe also refers us to a letter from the Legislative Counsel Bureau (Legislative Counsel) to Senator Jim Beall, dated March 11, 2016, apparently as evidence of legislative intent. The Legislative Counsel states that " section 935, subdivision (a) permits a school district to adopt a procedure for the presentation of a claim excepted by section 905 only if it is not governed by a statute or regulation that expressly relates to the claim." It opines: " Section 905 lists childhood sexual abuse claims among its exceptions, and defines those claims in terms of the statute that establishes the timeframe for victims of childhood sexual abuse to file lawsuits-that is, '[c]laims made pursuant to Section 340.1.' By definition, then, such claims are expressly governed by statute. It follows necessarily that such claims do not fall within the class of claims excepted by section 905 for which a local public entity may adopt its own claims procedure." (Fns. omitted.) The letter, however, was written years after the legislation enacting section 905(m) was passed.
"Opinions of the Legislative Counsel ordinarily are 'prepared to assist the Legislature in its consideration of pending legislation' [citation], and therefore such opinions oftеn shed light on legislative intent." ( St. John's Well Child & Family Center v. Schwarzenegger (2010)
Further, the cases on which the opinion relies for the proposition that, effective January 1, 2009, the gоvernment claim presentation requirement no longer applied to causes of action for childhood sexual abuse, did not discuss the effect of section 935. (See
D. Other arguments
We reject Doe's argument that the district's regulation was barred because a local public entity cannot enact a regulation that is inconsistent with state statute. While liability of local government entities for torts is a matter of state concern, and thus may not be regulated by local ordinances or regulations inconsistent with state law as established by the Government Claims Act, the district did not enact inconsistent legislation, but merely exercised the authority affirmatively granted to it by the state in section 935. ( Ontario , supra , 12 Cal.App.4th at pp. 899-900,
Doe argues the district failed to show that its board policy and administrative regulation barred her action due to failure to present a timely claim. She asserts Board Policy 3320 and Administrative Regulаtion 3320 are inconsistent with each other, and the board policy excludes causes of action described in Code of Civil Procedure section 340.1 from the claim presentation requirement. Her contention is without merit.
Board Policy 3320 identifies the causes of action for which a claim must be presented prior to filing suit. Administrative Regulation 3320 complements it by prescribing the time periods within which claims must be presented. Board Policy 3320 states: "Any and all claims for money or damages against the district shall be presented to and acted upon in accordance with Board policy and administrative regulation. [¶] ... [¶] Compliance with this policy and
Administrative Regulation 3320 sets out the time limits for presentation of claims against the district:
"1. Claims for money or damages relating to a cause of action for death or for injury to person, personal property or growing crops shall be presented to the Governing Board not later than six months after the accrual of the cause of action. ( Government Code 905, 911.2 )
"2. Claims for money or damages specifically excepted from Government Code 905 shall be filed not later than six months after the accrual of the cause of actiоn. ( Government Code 905, 911.2, 935 )"
The first subdivision merely repeats the time requirements of the Act, referencing the applicable statutes. Doe seems to contend the second subdivision is inconsistent with Board Policy 3320 because it does not contain the same limitation excluding claims "governed by statutes or regulations which expressly free the claimant from the obligation to comply with district policies and procedures and the claims procedures set forth in the Government Code" that is set out in Board Policy 3320. The second subdivision governs those claims excepted from section 905, but for which the district requires presentation of a claim. If the district did not require presentation of a claim, or if a statute or regulation freed the claimant from the district's claim presentation requirement, no time limit would be needed because no claim presentation would be required. In other words, Administrative Regulation 3320 would not apply. Thus, the provisions of Board Policy 3320 and Administrative Regulation 3320 are not inconsistent.
Doe appears tо argue the district has not shown it complied with section 53051, which requires public entities to file a statement containing
In this proceeding we are reviewing the trial court's ruling on a demurrer. Compliance with the claim presentation requirement is an element of Doe's cause of action against the district. ( Bodde, supra ,
We conclude none of Doe's contentions excuse her failure to allege compliance or excuse from compliance with the claim presentation requirements of the district's board policy and administrative regulation.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its order overruling petitioners' demurrers to the first amended complaint
WE CONCUR:
POOCHIGIAN, J.
DETJEN, J.
Notes
All further statutory references are to the Government Code unless otherwise indicated. Section 905, subdivision (m), will be referred to as section 905(m).
We grant both parties' requests for judicial notice, with the exception of Doe's September 22, 2016, request. Exhibit No. 1 to that request duplicates еxhibit No. 1 to Doe's October 28, 2016, request for judicial notice. Exhibit Nos. 2 and 3 to the September 22, 2016, request are irrelevant to the issues in this case. (See Mangini v. R.J. Reynolds Tobacco Co . (1994)
The specified sections include all or portions of Penal Code sections 266j, 285, 286, 288, 288a, 289, and 647.6. (Code Civ. Proc., § 340.1, subd. (e).)
Presentation of a claim to the employing public entity is also a prerequisite to bringing an action against a public employee or former public employee for an injury resulting from an act or omission in the scope of that employee's public employment. (Julian v. City of San Diego (1986)
"Tort Claims Act" is a phrase that has been used to refer to the Act. In Stockton, supra,
This omission is peculiar. Thе context in which government employees most regularly interact with children is through local public entities. And the Legislature's clear intent of adding subdivision (m) to section 905 was to make it easier for certain child sexual abuse claimants to sue the government without having to first present a government claim. It is odd, then, that the legislative history does not mention section 935, which provides local public entities a way that could, in effect, thwart that purpose. (See § 935, subds. (a) -(b).) One possible explanation is that when the Legislature amended section 905, it was unaware of section 935, or failed to understand its impact. While our rules of statutory construction have us presume the Legislature is aware of existing statutes when it amends the law, (at p. 361, post ) we acknowledge that this rule is often a necessary fiction to foster consistency in the interpretation of statutes. If the conclusion we reach under the rules of statutory construction that we must follow does not reflect the Legislature's intentions, it is in the Legislature's province, not ours, to address the issue.