E.D. COATS et al.,
A150490
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 3/12/20
CERTIFIED FOR PUBLICATION; (Alameda County Super. Ct. No. RG16820158)
Appellants E.D. Coats and her foster mother, Tinella B. Coats sued the New Haven Unified School District and others alleging that E.D. had been sexually abused by one of her high school teachers. The trial court entered judgment on the pleadings due to appellants’ failure to comply with
As we will explain, due to amendments of the controlling statutes enacted during the pendency of this appeal, we will reverse the judgment as to E.D.‘s causes of action and remand for further proceedings. As to Coats‘s causes of action, we will affirm the judgment.
BACKGROUND
According to the allegations of the complaint, in the spring of 2014, when E.D. was 17 years old and a junior in high school, one of her teachers began “grooming” her and then engaging in sexual intercourse and oral sex with her in locations including his classroom and his car in the school parking lot. The situation was discovered in January 2015, after the school‘s alarm system was triggered during a vacation, when no one should have been inside, and a representative of the alarm monitoring company heard what sounded like two people engaging in sexual intercourse. A representative sent to campus was met at the door by the teacher, who refused to let him in and said his wife was inside; the teacher was then observed leaving with a young woman later identified as E.D. The teacher admitted engaging in sexual intercourse with E.D. 10 to 20 times while she was a minor and pled no contest to one count of felony unlawful sexual intercourse with a minor (
On June 20, 2016, appellants filed a complaint for personal injuries and damages against the New Haven Unified School District (District), the school principal, the teacher, and others. E.D. alleged causes of action against the teacher for sexual abuse (first cause of action), against the other defendants for negligence and breach of statutory duties in failing to adequately supervise teachers and protect students (second and third causes of action), and against all the defendants for intentional and negligent infliction of emotional distress (fourth and fifth causes of action). Coats joined in the claims of intentional and negligent infliction of emotional distress.
Appellants alleged that they were not required to present a claim to the District under the Government Claims Act (
The trial agreed with respondents, granted the motion and dismissed the complaint with respect to all claims against the District and the principal. Judgment was entered on January 3, 2017, and this appeal followed.
DISCUSSION
I.
Under the Government Claims Act, personal injury claims against public entities generally must be presented to the entity within six months of accrual of the injury. (A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1257.) Absent an applicable exception, “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 (2004) 32 Cal.4th 1234, 1239;
At the time appellants filed this action,
The
In concluding appellants’ suit was barred by their failure to comply with the District‘s claims presentation requirement, the trial court rejected appellants’ argument that the District‘s policy and regulation “‘circumvent the express intention of the legislature‘” in
Appellants’ appeal challenged these determinations. Prior to the enactment of subdivision (m) of
Respondent‘s brief relies on a series of cases considering the interplay between
The California Supreme Court granted review of Big Oak Flat in June 2018 (S247975), and we granted appellants’ unopposed request to stay
In July 2018, the Legislature adopted Senate Bill No. 1053, which amended
On July 17, 2019, the California Supreme Court transferred Big Oak Flat to the Fifth Appellate District Court of Appeal “with directions to vacate its decision and reconsider the cause in light of the enactment of Statutes 2018, chapter 1053 (Sen. Bill No. 1053 (2017-2018 Reg. Sess.)). (Cf. Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922-923 & 930; Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244.) (Cal. Rules of Court, rule 8.528(d).)”
Appellants’ subsequently filed reply brief on the present appeal argues that Senate Bill No. 1053 demonstrates the Legislature never intended
Then, on October 13, 2019, Assembly Bill No. 218 (Assembly Bill 218) was signed into law. Assembly Bill 218 significantly amended
Two of the subdivisions added by Assembly Bill 218 are of direct relevance here. Subdivision (q) provides: “Notwithstanding any other provision of law, any claim for damages described in paragraphs (1) through (3), inclusive, of subdivision (a) that has not been litigated to finality and 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, is revived, and these claims may be commenced within three years of January 1, 2020. A plaintiff shall have the later of the three-year time period under this subdivision or the time period under subdivision (a) as amended by the act that added this subdivision. Subdivision (r) of the amended
In addition to the changes to
In a supplemental letter brief filed in November 2019, appellants argue that Assembly Bill 218 effectively moots the previously presented issues in this case because even if the action was previously barred by the failure to
timely file a claim with the District, it is now revived pursuant to
The District responds that Assembly Bill 218 raises serious constitutional issues in that it “imposes liability and sanctions of a punitive nature for conduct that was not previously actionable” and thereby “runs afoul of the constitutional prohibition against ex post facto laws (
The District directs our attention to several cases finding that laws “containing similar provisions” violated the ex post facto clause or refusing to apply laws retroactively because of ex post facto concerns. (Landgraf v. USI Film Products (1994) 511 U.S. 244, 281 (Landgraf); Schering-Plough Corp., supra, 779 F.Supp.2d at p. 237; Louis Vuitton S.A. v. Spencer Handbags Corp. (2d Cir. 1985) 765 F.2d 966, 971-972.) Landgraf addressed a section of the Civil Rights Act of 1991 creating a right to recover compensatory and punitive damages for intentional discrimination in violation of title VII of the Civil Rights Act of 1964; previously, only equitable relief had been available for a title VII violation. In holding the new provision did not apply to a case pending on appeal at the time of enactment, the court explained there was no clear evidence of congressional intent to apply it to cases arising before it was enacted, “[r]etroactive imposition of punitive damages would raise a serious constitutional question” and even retroactive application of the provision for compensatory damages would impose a “new disability” on employers. (Landgraf, at pp. 281, 283-284.) In Schering-Plough Corp., the state sought to apply a provision of the Massachusetts False Claims Act (MFCA) that increased penalties and damages (including trebled damages) above the amount available under prior law in a case involving conduct that preceded enactment of the statute. Despite an unambiguous statement of legislative intent that the statute apply retroactively, the court held such application would violate the ex post facto clause and, therefore, the defendants’ liability for conduct predating the new law was governed by the law in effect prior to the MFCA. (Schering-Plough Corp., at pp. 233-238.) In Louis Vuitton, the
In each of these cases, the court was asked to apply a statutory provision increasing the amount of damages available for acts committed prior to the provisions’ enactment. Here, however, the treble damages provision added to
Additionally, an ex post facto argument quite similar to the District‘s was rejected in Bishop of Oakland, supra, 128 Cal.App.4th 1155, which considered a 2002 amendment to
Furthermore, the Bishop of Oakland court explained, “to the extent ex post facto concerns were implicated by Landgraf, they are substantially different
“At issue here, however, is the revival of a lapsed civil limitations period in order to restore common law remedies that actually existed at the time of the alleged misconduct. As noted, numerous federal and California decisions have held that there is no constitutional impediment to such legislation. In light of those decisions, and in the absence of any such issues or discussion in Landgraf, we do not believe Landgraf can be read as having any applicability here. Instead, as we explain below, we hold that a statute reviving the limitations period for a common law tort cause of action, thereby allowing the plaintiff to seek punitive damages, does not implicate the ex post facto doctrine and therefore does not trigger the intent-effects test at all.” (Bishop of Oakland, supra, 128 Cal.App.4th at p. 1164, fn. omitted.) The court then went on to discuss caselaw underlying its conclusion that “[n]o reported decision of any federal or state court has ever held that punitive damages awarded pursuant to a common law tort claim might constitute criminal punishment under the ex post facto clause. Our courts and others have held just the opposite.” (Id. at p. 1165.)
Putting aside the issue of punitive damages, as noted in Bishop of Oakland, supra, 128 Cal.App.4th at pages 1161-1162, an earlier case had rejected a constitutional challenge to the revival of previously time-barred causes of action in the original version of
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, as it expressly did in Assembly Bill 218: “Notwithstanding any other provision of law, any claim for damages described in paragraphs (1) through (3), inclusive, of subdivision (a) that has not been litigated to finality and 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, is revived, and these claims may be commenced within three years of January 1, 2020.” (
The express inclusion of “claim presentation deadline[s]” in Assembly Bill 218 distinguishes it from the 2002 amendment to
Rubenstein noted that the claim presentation requirement ” ‘is based on a recognition of the special status of public entities, according them greater protections than nonpublic 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, supra, 3 Cal.5th at p. 908, quoting Shirk, supra, 42 Cal.4th at p. 213.)6 In that case, the plaintiff argued that the claim she filed with a
public entity defendant in 2012, when she became aware of memories of sexual abuse by her public school athletic coach 1993-1994, was timely. Accepting the plaintiff‘s argument that her claim accrued when she became aware of the past abuse, the court said, would contravene the policies underlying the claim presentation requirement: “A public entity cannot plan for a fiscal year if it may be subject to an unknown and unknowable number of ancient claims like this one. It is probably too late today to meaningfully investigate the facts behind the claim and reach reliable conclusions; even if some investigation is still possible, a claim timely filed in 1993 or 1994 would certainly have been easier to investigate and would have allowed for more reliable conclusions. It is also too late to prevent the alleged abuser from abusing again.” (Rubenstein, at p. 914.)
The Rubenstein court observed that in responding to Shirk by adding subdivision (m) to
In Assembly Bill 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 a different conclusion, with an express revival provision for claims against public entities as well as those against private defendants.
The District attempts to cast doubt upon the constitutionality of
In light of the express revival provision in subdivision (q) of
claims of childhood sexual abuse previously barred for failure to
II.
The above analysis would apply equally to Coats‘s claims of emotional distress if, as appellants maintain, these claims were also subject to the exception of
The trial court, without further explanation, held subdivision (m) of
In appellants’ view, since the purpose of
Appellants’ contention that
Subdivision (m) of
Appellants make a reasonable argument that it would be incongruous to require a parent‘s action for emotional distress resulting from childhood sexual abuse of his or her child to be filed within six months of the abuse when the law recognizes that the child may not reveal and/or become aware of the significance of such abuse until years later. But this argument assumes the Legislature intended parents or other third parties to be able to recover damages from public entities for the emotional distress they suffer upon learning the victim was sexually abused. The incongruity would exist only to the extent appellants’ assumption is warranted.
Appellants point to Phyllis P. v. Superior Court (1986) 183 Cal.App.3d 1193 (Phyllis P.), which permitted a mother to assert claims for emotional distress against school authorities arising out of the sexual assault and rape of her young daughter by another student. The child had reported incidents of molestation to her teacher, but the teacher and school counselor decided not to tell the mother about the molestation or counseling that was provided to the child; the principal warned the offending student his parents would be notified if he did not stop “bothering” the child but also did not notify the victim‘s mother. (Id. at p. 1195.) Ultimately, the child was raped. The mother claimed she could have taken precautionary measures if she had been informed of the earlier assaults and suffered severe emotional distress as a result of the defendants’ failure to notify her, due to the rape and her observation of her daughter‘s physical and psychological deterioration. (Ibid.) The court concluded the school defendants had a special relationship with and duty of care to the mother in these circumstances, failed to properly supervise the perpetrator or protect the child, and withheld information about the earlier assaults from the mother, preventing her from taking precautions, amounting to a cover-up the defendants should have foreseen would cause the
On the other hand, Steven F., supra, 112 Cal.App.4th 904, reversed a jury verdict in favor of parents on their cause of action for emotional distress upon learning their daughter had engaged in a sexual relationship with one of her high school teachers. The daughter had tried to hide the relationship from her parents, begged them not to go to the police when they found out, and became suicidal after the teacher was arrested. (Id. at p. 906.) There was no evidence the school defendants knew of the sexual relationship or of any prior tendency on the part of the teacher to have sex with students. (Id. at pp. 907, 909.) Steven F. distinguished Phyllis P. factually, as the school authorities in that case were aware of the propensity and danger posed by the perpetrator and intentionally chose to keep information from the mother, thereby “preempt[ing]” or “usurp[ing]” the “parental prerogative to take measures to protect the child.” (Steven F., at pp. 914-915.) The Steven F. court considered several theories of recovery discussed in cases involving third party emotional distress claims and concluded none supported recovery on the facts of that case. (Id. at pp. 911-919.)
For present purposes, it is not necessary for us to determine where the present case would fall as a factual matter.9 These cases illustrate that parents have not been seen by the courts as necessarily entitled to recover for emotional distress when their children have a direct claim of sexual abuse.
Absent discernable legislative intent, we cannot conclude the Legislature intended to provide relatives the same rights as direct victims in the context of childhood sexual abuse cases under
Accordingly, we agree with the trial court that Coats‘s causes of action are barred by her failure to file a timely claim with the District.
The judgment is affirmed as to Coats. As to E.D., the judgment is reversed and the matter remanded for further proceedings consistent with this opinion.
Kline, P.J.
We concur:
Richman, J.
Stewart, J.
E.D. Coats et al. v. New Haven Unified School District et al. (A150490)
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Robert B. Freedman
Attorneys for Appellants: Taylor & Ring John C. Taylor Natalie Weatherford
Esner, Chang & Boyer Holly N. Boyer Joseph S. Persoff
Haysbert Moultrie Nazareth M. Haysbert
Attorneys for Respondents: Leone & Alberts Louis A. Leone Katherine Alberts Marina B. Pitts Seth L. Gordon
Notes
“(a) Claims against a local public entity for money or damages which are excepted by
(b) The procedure so prescribed may include a requirement that a claim be presented and acted upon as a prerequisite to suit thereon. If such requirement is included, any action brought against the public entity on the claim shall be subject to the provisions of
(c) The procedure so prescribed may not require a shorter time for presentation of any claim than the time provided in
(d) The procedure so prescribed may not provide a longer time for the board to take action upon any claim than the time provided in
(e) When a claim required by the procedure to be presented within a period of less than one year after the accrual of the cause of action is not presented within the required time, an application may be made to the public entity for leave to present such claim. Subdivision (b) of
A 2018 amendment adding an additional subdivision to the statute will be discussed post.
In 1990, the Legislature extended the statute of limitations for claims of childhood sexual abuse to eight years from the date of the plaintiff‘s majority or three years from the date of discovery that “psychological injury or illness occurring after the age of majority was caused by the sexual abuse.” (Stats. 1990, ch. 1578, § 1.) The legislation stated, “The amendments to this section enacted at the 1990 portion of the 1989-90 Regular Session shall apply to any action commenced on or after January 1, 1991.” (Id., § 1, subd. (k).) In 1994, responding to a court decision holding the 1990 amendment did not indicate legislative intent to revive causes of action which had lapsed under prior law (David A. v. Superior Court (1993) 20 Cal.App.4th 281, 286; Quarry v. Doe I (2012) 53 Cal.4th 945, 964), the Legislature added subdivisions (o) and (p), expressly reviving such causes of action in cases commenced on or after January 1, 1991.
Amendments in 1998 distinguished between actions against a person for committing an act of childhood sexual abuse and actions to impose liability on third parties whose conduct was a legal cause of the abuse, with the latter required to be commenced by the plaintiff‘s 26th birthday. (Stats. 1998, ch. 1032, § 1, subds. (a), (b).) An amendment a year later stated that the 1998 amendments applied to actions commenced on or after January 1, 1999, and previously filed actions still pending on that date, “including any action or causes of action which would have been barred by the laws in effect prior to January 1, 1999,” but did not revive causes of action that had been finally adjudicated prior to January 1, 1999.” (Stats. 1999, ch. 120, § 1, subd. (s).)
Amendments in 2002 extended the time for commencing third-party actions beyond the plaintiff‘s 26th birthday in specified circumstances and expressly revived such claims “that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired” for a period of one year. (Stats. 2002, ch. 149, § 1, subds. (b)(2), (c).)