A.M. v. Ventura Unified School Dist. ( 2016 )

Filed 10/19/16 Unmodified opinion attached
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
A.M., a Minor, etc., 2d Civil No. B266650
(Super. Ct. No. 56-2013-
Plaintiff and Appellant, 00445601-CU-PO-VTA)
(Ventura County)
v.
VENTURA UNIFIED SCHOOL ORDER MODIFYING OPINION
DISTRICT, et al., (No Change in Judgment)
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on October 12, 2016, be modified
as follows:
On page 4, line 3, add the following footnote after the words “Government
Code section 44807,”: “Although the complaint alleges a violation of Government Code
section 44807, that section does not exist.” The footnote shall be numbered footnote No.
2.
On page 3, at the end of the last paragraph, renumber footnote No. 2 as
footnote No. 3.
On page 13, at the end of the first full paragraph, renumber footnote No. 3 as
footnote No. 4.
No change in judgment.
Filed 10/12/16 Unmodified opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
A.M., a Minor, etc., 2d Civil No. B266650
(Super. Ct. No. 56-2013-
Plaintiff and Appellant, 00445601-CU-PO-VTA)
(Ventura County)
v.
VENTURA UNIFIED SCHOOL DISTRICT
et al.,
Defendants and Respondents.
D.G., as guardian ad litem for her minor daughter, A.M. (appellant), sued the
Ventura Unified School District (District), Michael Tapia, and Gwen Fields (collectively
respondents) for negligence. Appellant alleged, among other things, that respondents
negligently allowed male students to sexually abuse her while at school. The trial court
granted summary judgment for respondents, concluding that appellant failed to file the
required government tort claim with the District.
Appellant concedes she did not file a tort claim, but asserts she was excused
from doing so pursuant to Government Code section 905, subdivision (m), which exempts
“[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 sexual abuse.”1 Section 340.1, subdivisions
(a)(2) and (b)(1) set forth the limitations period for bringing actions “for liability against
1
All further statutory references are to the Code of Civil Procedure unless
otherwise stated.
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.” Such actions must be commenced before the
victim’s 26th birthday. (Ibid.) Appellant’s is such an action.
Because section 340.1 provides the limitations period for appellant’s claims
of childhood sexual abuse, appellant was exempt from filing a tort claim under
Government Code section 905, subdivision (m). As we shall explain, the trial court erred
by concluding the exemption applies only if the alleged childhood sexual abuse was
committed by an employee, volunteer, representative or agent of the public entity. We
reverse and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
Appellant was a second grade student at an elementary school in Ventura.
Between September 2012 and April 2013, appellant allegedly was bullied, battered and
sexually abused by some of her fellow students. A.R., a male student, hit and kicked her,
touched her private parts, pinched her buttocks, hugged her and pressed himself against
her. Another student exposed himself to appellant and rubbed his private parts on her. On
one occasion, appellant was knocked unconscious.
D.G. reported the abuse to various District employees, including appellant’s
teacher (Fields) and the school’s principal (Tapia). When D.G. attempted to see the
superintendant, she was referred to another District employee, who referred her back to
Tapia. According to D.G., the District did nothing to stop the attacks on appellant.
Fields told D.G. that “[she needs] to fix things on [her] own,” and Tapia suggested that she
move appellant to another school.
As a result of the bullying and attacks, appellant was afraid to go to school or
to play outside with her friends. In April 2013, D.G. began homeschooling appellant.
In June 2013, appellant presented a tort claim to the County of Ventura,
which is a separate entity from the District. The County of Ventura sent a notice of
rejection. No claim was presented to the District.
2
Appellant and D.G. filed a complaint for damages against respondents for
(1) negligent supervision of students; (2) negligent supervision of school premises;
(3) violation of article I, section 28, subdivision (c) of the California Constitution,
Government Code section 44807, Education Code section 8202 and California Code of
Regulations, title 5, section 5552; (4) sexual harassment; (5) negligent infliction of
emotional distress as to appellant; and (6) negligent infliction of emotional distress as to
D.G. Only the sixth cause of action was brought by D.G. on her own behalf. After
respondents demurred to most of the causes of action, appellant and D.G. voluntarily
dismissed the common law claims, leaving only appellant’s claims for negligent
supervision of students, negligent supervision of school premises and violation of
constitutional and statutory rights. The trial court overruled the demurrer as to those three
claims.
Respondents moved for summary judgment on the ground that the remaining
three causes of action are barred due to appellant’s failure to comply with the claims
presentation requirement set forth in Government Code section 911.2. Appellant did not
dispute the facts raised in respondents’ motion. She argued that because her claim was
made pursuant to section 340.1 for “childhood sexual abuse,” she was not required to file a
government tort claim. (Gov. Code, § 905, subd. (m).)
The trial court rejected appellant’s contention “that a claim was not required
in the first place pursuant to an exception granted by Government Code section 905
[subdivision] (m) and the revival language contained [in] section 340.1.” It concluded
“that that these sections apply to childhood sexual abuse committed by an employee,
volunteer, representative or agent of a public entity,” and not by “third parties (students).”
The court accordingly granted summary judgment for respondents. This appeal followed.2
2
Respondents correctly contend that D.G. lacks standing to appeal the trial court’s
summary judgment on her own behalf. Because D.G. dismissed her individual claim
before judgment was entered, she is not a party to the judgment except in her capacity as
guardian ad litem for her daughter. The notice of appeal confirms that D.G. appealed the
judgment strictly on appellant’s behalf.
3
DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo. (Wiener v. Southcoast
Childcare Centers, Inc. (2004) 32 Cal. 4th 1138, 1142.) In addition, “‘the interpretation
and application of a statutory scheme to an undisputed set of facts is a question of law
[citation] which is subject to de novo review on appeal. [Citation.]’” (Bodell Construction
Co. v. Trustees of Cal. State University (1998) 62 Cal. App. 4th 1508, 1515.)
“We begin with the fundamental rule that our primary task is to determine
the lawmakers’ intent” in enacting the relevant statute. (Delaney v. Superior Court (1990)
50 Cal. 3d 785, 798.) “In determining such intent, a court must look first to the words of
the statute themselves, giving to the language its usual, ordinary import and according
significance, if possible, to every word, phrase and sentence in pursuance of the legislative
purpose. A construction making some words surplusage is to be avoided. The words of
the statute must be construed in context, keeping in mind the statutory purpose, and
statutes or statutory sections relating to the same subject must be harmonized, both
internally and with each other, to the extent possible. [Citations.] Where uncertainty
exists consideration should be given to the consequences that will flow from a particular
interpretation. [Citation.] Both the legislative history of the statute and the wider
historical circumstances of its enactment may be considered in ascertaining the legislative
intent. [Citations.]” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987)
43 Cal. 3d 1379, 1386-1387.)
B. Enactment of Government Code Section 905, Subdivision (m)
The Government Tort Claims Act (Gov. Code, § 810 et seq.) requires that
“[b]efore suing a public entity, the plaintiff must present a timely written claim for
damages to the entity. [Citations.]” (Shirk v. Vista Unified School Dist. (2007) 42 Cal. 4th
201, 208 (Shirk).) “A claim relating to a cause of action for . . . injury to person[s] . . .
shall be presented . . . not later than six months after the accrual of the cause of action.”
(Gov. Code, § 911.2, subd. (a).) “Timely claim presentation is not merely a procedural
requirement, but is . . . ‘“‘a condition precedent to plaintiff’s maintaining an action against
4
defendant’”’ [citations], and thus an element of the plaintiff’s cause of action. [Citation.]”
(Shirk, at p. 209.) With certain exceptions, once a claim has been presented and rejected, a
plaintiff has six months to file a lawsuit. (Gov. Code, § 945.6, subd. (a)(1).) These time
periods are generally not tolled while the plaintiff is a minor. (§ 352, subd. (b); K.J. v.
Arcadia Unified School Dist. (2009) 172 Cal. App. 4th 1229, 1238; County of Los Angeles
v. Superior Court (2005) 127 Cal. App. 4th 1263, 1268-1269.)
As discussed more fully below, section 340.1 “sets forth a special statute of
limitations for victims of childhood sexual abuse.” (County of Los Angeles v. Superior
Court, supra, 127 Cal.App.4th at pp. 1269-1270; see K.J. v. Arcadia Unified School Dist.,
supra, 172 Cal.App.4th at p. 1238.) In Shirk, our Supreme Court concluded that the
delayed discovery provisions in section 340.1 did not toll the period in which to present a
claim under the Government Tort Claims Act. The court held specifically that a timely
six-month claim is a prerequisite to maintaining an action for childhood sexual abuse
against a public entity school district. (Shirk, supra, 42 Cal.4th at p. 214.)
In direct response to Shirk, the Legislature enacted Government Code section
905, subdivision (m), which eliminates the claim presentation requirement for “[c]laims
made pursuant to Section 340.1 . . . for the recovery of damages suffered as a result of
childhood sexual abuse.” (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 640
(2007-2008 Reg. Sess.) as amended June 8, 2008, p. 3 [“This bill is intended to address the
Shirk decision by expressly providing that childhood sexual abuse actions against public
entities are exempted from government tort claims requirements and the six-month notice
requirement”].) This exemption applies to claims arising out of conduct occurring on or
after January 1, 2009. (Gov. Code, § 905, subd. (m); J.P. v. Carlsbad Unified School Dist.
(2014) 232 Cal. App. 4th 323, 333, fn. 6 [“Effective January 1, 2009, the government claim
presentation requirement no longer applies to claims for childhood sexual abuse”]; accord,
S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal. App. 4th 712, 721, fn. 6.)
Appellant’s complaint alleges that, while she was a second grade student at a
Ventura elementary school in 2012 and 2013, respondents negligently failed to supervise
“the conduct of children on school grounds and to enforce the rules and regulations
5
necessary to protect [her and other] students” from sexual abuse and that she suffered harm
from such abuse. Appellant did not present a timely tort claim to the District, and the
question before us is whether her action, which arose out of post-2008 conduct, is exempt
from that requirement under Government Code section 905, subdivision (m). The answer
lies in whether her sexual abuse claims fall within section 340.1.
C. Interpretation and Application of Section 340.1
Section 340.1 contains varying limitations periods for bringing actions for
childhood sexual abuse against different groups of defendants. Subdivision (a) of section
340.1 provides that “[i]n an action for recovery of damages suffered as a result of
childhood sexual abuse, the time for commencement of the action shall be within eight
years of the date the plaintiff attains the age of majority or within three years of the date
the plaintiff discovers or reasonably should have discovered that psychological injury or
illness occurring after the age of majority was caused by the sexual abuse, whichever
period expires 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.” (Italics added.)
Notwithstanding this language, an action against third parties brought under
section 340.1, subdivisions (a)(2) and (a)(3) must be brought before the plaintiff’s 26th
birthday. Section 340.1, subdivision (b)(1) expressly states: “(1) No action described in
paragraph (2) or (3) of subdivision (a) may be commenced on or after the plaintiff’s 26th
birthday.” But this subdivision is subject to an exception. Section 340.1, subdivision
(b)(2) provides that the age cutoff in subdivision (b)(1) “does not apply if the person or
entity knew or had reason to know, or was otherwise on notice, of any unlawful sexual
conduct by an employee, volunteer, representative, or agent, and failed to take reasonable
steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in
6
the future by that person, including, but not limited to, preventing or avoiding placement of
that person in a function or environment in which contact with children is an inherent part
of that function or environment.” (Italics added.)
1. Relevant History of Amendments to Section 340.1
As a general rule, a cause of action for childhood sexual abuse accrues at the
time of molestation. (John R. v. Oakland Unified School Dist. (1989) 48 Cal. 3d 438, 443.)
Prior to the enactment of section 340.1 in 1986, courts applied former section 340, which
provided a one-year statute of limitations for child sexual abuse claims. Courts also
applied section 352, subdivision (a), which tolled the running of the statute while the
plaintiff was still a minor. (See former § 340, subd. (3).)
In 1986 the Legislature enacted section 340.1, which expanded the
limitations period to three years for sexual abuse by a relative or household member of a
child under 14 years of age. (Former § 340.1, added by Stats. 1986, ch. 914, § 1, pp. 3165-
3166.) “In 1990, the limitations period for actions against the actual perpetrator was
extended in all cases to the later of three years from discovery that adult-onset
psychological injury had been caused by the abuse, or the plaintiff’s 26th birthday.” (Doe
v. Doe 1 (2012) 208 Cal. App. 4th 1185, 1189; see Quarry v. Doe I (2012) 53 Cal. 4th 945,
963 (Quarry).)
Amendments in 1998 and 1999 applied an extended limitations period to
third party defendants “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,” with an absolute cutoff at age 26 regardless of
when discovery occurred. (§ 340.1, subd. (a)(2); Doe v. Doe 1, supra, 208 Cal.App.4th at
p. 1189; Quarry, supra, 53 Cal.4th at pp. 965-967.) This law changed in 2003 when
section 340.1 was amended to expand the limitations period for childhood sexual abuse
claims against certain third parties to the later of plaintiff’s 26th birthday or three years
from discovery that the abuse caused adult-onset psychological injury. (Doe, at pp. 1189-
1190.) But “[t]his expansion applied to only a limited class of [third party] defendants,
[i.e.,] those who knew, or had reason to know, or were otherwise on notice of any unlawful
7
sexual conduct by an employee or other agent and failed to take reasonable steps and to
implement reasonable safeguards to avoid acts of unlawful sexual conduct by that person
in the future. As to all other third party defendants, the age 26 cutoff still applied.” (Doe,
at p. 1190, italics added; Quarry, at pp. 968-969 [“This exception was adopted to apply to
claims against a subcategory of the third party defendants that already had been defined in
section 340.1, subdivision (a)(2) and (3)”].)
2. Application of Section 340.1 to Appellant’s Claims
The trial court determined that by creating a subcategory of third party
defendants to which the expanded statute of limitations applies, the Legislature meant to
also limit third-party claims arising out of section 340.1, subdivision (a)(2) to those in
which an employee, volunteer, representative, or agent of the person or entity committed
the alleged abuse. We do not read the statute’s language so broadly. All the Legislature
did was eliminate “‘the age 26 cutoff as against a narrow category of third party
defendants who had both the knowledge and the ability to protect against abusive behavior
[by an employee, volunteer, representative, or agent], but failed to do so. Anyone
discovering that childhood abuse was the cause of the injuries after 2003 could sue
these―more culpable―defendants without regard to the age 26 cutoff.’” (Quarry, supra,
53 Cal.4th at p. 978, italics added.)
There is nothing to suggest that the Legislature intended to modify section
340.l, subdivision (a)(2) to limit “[a]n action for liability against any person or entity who
owed a duty of care to the plaintiff” to cases in which the alleged abuse was committed by
an employee, volunteer, representative or agent of the person or entity. To the contrary,
the statutory amendment simply clarified that claims against third parties under section
340.1, subdivision (a)(2) remain subject to the age 26 cutoff unless extended by
subdivision (b)(2). (Quarry, supra, 53 Cal.4th at pp. 969, 988; accord, Dutra v. Eagleson
(2006) 146 Cal. App. 4th 216, 224 [“[O]nly those actions against the actual perpetrator, or
against a third party defendant described in subdivision (b)(2), could be brought after the
plaintiff’s 26th birthday, up to three years after the plaintiff discovered the cause of his
adult-onset psychological injuries”]; Doe v. City of Los Angeles (2007) 42 Cal. 4th 531, 544
8
[“Subdivision (b)(2) extends past a plaintiff’s 26th birthday claims against a
nonperpetrator defendant who is or was in a specified relationship with the
perpetrator―‘employee, volunteer, representative, or agent’―and who, ‘knew or had
reason to know, or was otherwise on notice’ of the perpetrator’s ‘unlawful sexual conduct’
and ‘failed to take “preventative measures to” avoid acts of unlawful sexual conduct in the
future’ by that perpetrator”].)
Here, appellant is still a minor and therefore has no need to invoke the three-
year revival provision in section 340.1, subdivision (b)(2). Her claims against respondents
were timely filed under section 340.1, subdivision (a)(2) because they were discovered and
brought before her 26th birthday. (See § 340.1, subds. (a)(2), (b)(1).) Although
respondents argue that this statute of limitations does not apply to appellant's sexual abuse
claims, they provide no alternative statute of limitations for us to consider. Indeed, the
trial court did not question section 340.1’s applicability to childhood sexual abuse claims
brought against third parties. It just found, albeit incorrectly, that the claims must involve
abuse by an employee, volunteer, representative or agent of the public entity for section
340.1, subdivision (a)(2) to apply.
Aaronoff v. Martinez-Senftner (2006) 136 Cal. App. 4th 910 does not aid
respondents’ position. The plaintiff in that case was 40 years old when she sued her
parents for damage inflicted by her father’s sexual abuse. She claimed that because her
parents were in business together, her father was her mother’s agent. (Id. at p. 923.) On
that basis she argued that her case fell within section 340.1, subdivision (b)(2), thereby
freeing her from the ban on suits against third parties by victims over age 26. The court
disagreed, concluding the relationship was not an agency relationship within the meaning
of section 340.1, subdivision (b)(2) and, consequently, the claim was properly dismissed as
untimely. (Aaranoff, at p. 923.) As previously discussed, section 340.1, subdivision (b)(2)
has no application here.
Nor are we persuaded by S.M. v. Los Angeles Unified School District, supra,
184 Cal. App. 4th 712, in which the court determined that the plaintiff’s cause of action
accrued for purposes of the tort claim presentation requirement when she learned of the
9
purported sexual abuse. (Id. at p. 721.) That decision is inapplicable because the alleged
abuse predates the effective date of Government Code section 905, subdivision (m). As
the court noted, “[i]n apparent recognition of the dilemma faced by families of children
abused by public school officials, the law has changed. For claims described in . . . section
340.1 for the recovery of damages suffered due to childhood sexual abuse occurring after
January 1, 2009, the tort claim presentation requirement no longer applies.” (S.M., at p.
721, fn. 6, citing Gov. Code, § 905, subd. (m); see J.P. v. Carlsbad Unified School Dist.,
supra, 232 Cal.App.4th at p. 333, fn. 6 [“Because the abuse here occurred before [January
1, 2009], the claim requirement (with its six-month time limitation) governs this case”];
K.J. v. Arcadia Unified School Dist., supra, 172 Cal. App. 4th 1229, 1234, fn. 2 [“The 2008
amendment [creating Government Code section 905, subdivision (m)], by its terms, does
not apply to the instant case”]; County of Los Angeles v. Superior Court, supra, 127
Cal.App.4th at p. 1266 [alleged sexual abuse occurred in 2001 before enactment of
Government Code section 905, subdivision (m)].)
Respondents argue that even if the trial court did misconstrue the application
of section 340.1 to appellant’s case, the summary judgment must be upheld for other
reasons. First, they assert appellant failed to allege in her complaint that she was making
claims pursuant to section 340.1 and that she may not make this allegation for the first time
on a summary judgment motion. We are not persuaded. Section 340.1 is not a type of
claim per se; it is a statute of limitations governing claims such as those raised by
appellant’s complaint. (County of Los Angeles v. Superior Court, supra, 127 Cal.App.4th
at p. 1268.) Appellant alleged facts showing that the limitations period in section 340.1,
subdivision (a)(2) applies, and that was sufficient to raise the issue for purposes of the
summary judgment motion. (See Pipitone v. Williams (2016) 244 Cal. App. 4th 1437,
1449.)
Second, respondents contend appellant’s defense fails because appellant is
not in the class of persons for whom section 340.1 was enacted. Specifically, they assert
section 340.1 applies only to adult plaintiffs, and not minor plaintiffs. We recognize that
the primary purpose of section 340.1 is to extend the statute of limitations for adults who
10
discover they had been abused as children, but respondents cite no persuasive authority
suggesting that section 340.1, subdivision (a)(2) does not apply to situations in which the
abuse is discovered while the plaintiff is still a minor. (See Debbie Reynolds Prof.
Rehearsal Studios v. Superior Court (1994) 25 Cal. App. 4th 222, 232 [“The obvious goal
of amended section 340.1 is to allow sexual abuse victims a longer time period in which to
become aware of their psychological injuries and remain eligible to bring suit against their
abusers”].) Although Curtis T. v. County of Los Angeles (2004) 123 Cal. App. 4th 1405,
1419-1420, noted that the limitations period for adult plaintiffs to file civil actions based
on childhood sexual abuse is governed by section 340.1, it had no occasion to interpret that
statute. Opinions are not authority for issues they do not consider and decide. (Stoll v.
Shuff (1994) 22 Cal. App. 4th 22, 27.)
Section 340.1 provides that, with certain exceptions not applicable here, an
action against a third party for damages arising from childhood sexual abuse must be
brought before age 26. (Id., subds. (a)(2), (b)(1).) Here, it is undisputed that appellant is
making a claim of sexual abuse that occurred during her childhood and that was brought
before the age of 26. Nothing in the statutory language implies that the action cannot be
brought while the plaintiff is still a minor. If that were the case, a childhood sexual abuse
claim discovered shortly before the plaintiff’s 18th birthday would be subject to the
government claim presentation requirement, while a claim discovered shortly after that
birthday would be exempt under Government Code section 905, subdivision (m). We
must refrain from an interpretation of a statute that would result in absurd consequences.
(Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal. 4th 995, 1003.)
Third, respondents maintain that acts alleged to have been committed by
seven-year-old children do not fall within the definition of “‘childhood sexual abuse”’ in
section 340.1, subdivision (e). That subdivision states: “‘Childhood sexual abuse’ as used
in this section includes any act committed against the plaintiff that occurred when the
plaintiff was under the age of 18 years and that would have been proscribed by Section
266j of the Penal Code; Section 285 of the Penal Code; paragraph (1) or (2) of subdivision
(b), or of subdivision (c), of Section 286 of the Penal Code; subdivision (a) or (b) of
11
Section 288 of the Penal Code; paragraph (1) or (2) of subdivision (b), or of subdivision
(c), of Section 288a of the Penal Code; subdivision (h), (i), or (j) of Section 289 of the
Penal Code; or any prior laws of this state of similar effect at the time the act was
committed. Nothing in this subdivision limits the availability of causes of action permitted
under subdivision (a), including causes of action against persons or entities other than the
alleged perpetrator of the abuse.”
Appellant’s complaint alleges that between September 2012 and April 2013,
appellant was sexually abused by two of her fellow students. A.R., a male student,
touched her private parts, pinched her buttocks, hugged her and pressed himself against
her, while another student exposed himself to her and also rubbed his private parts on her.
These actions qualify as lewd and lascivious acts committed upon a child under the age of
14. (See Pen. Code, § 288, subd. (a).)
Respondents argue that these students are not legally responsible for these
acts because Penal Code section 26 provides that a child under the age of 14 is not capable
of committing a crime in the absence of clear proof that, at the time of committing the
charged act, he or she knew its wrongfulness. Respondents did not, however, submit any
evidence on this point. (§ 437c, subd. (p)(2).) Their motion for summary judgment was
limited to issues concerning appellant’s failure to present a government tort claim. It is
well established that when a “new theory contemplates a factual situation the consequences
of which are open to controversy and were not put in issue or presented at the trial the
opposing party should not be required to defend against it on appeal. [Citations.]”
(Panopulos v. Maderis (1956) 47 Cal. 2d 337, 341; see Richmond v. Dart Industries, Inc.
(1987) 196 Cal. App. 3d 869, 879.) We therefore decline to consider the issue for the first
time on appeal.
Finally, the legislative history of Government Code section 905, subdivision
(m) confirms that the purpose of that section was ‘“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. . . .”’ (Assem. Com. on Judiciary,
Analysis of Sen. Bill No. 640, supra, at p. 3.) The author of the legislation explained this
12
would be accomplished “by specifically exempting Section 340.1 civil actions for
childhood sexual abuse from government tort claim requirements, thereby treating Section
340.1 actions against public entities the same as those against private entities.” (Id. at
p. 4.) Our decision is consistent with this intent.
In sum, we conclude that appellant’s claim for liability against respondents is
subject to the limitations period in section 340.1, subdivisions (a)(2) and (b)(1). Because
section 340.1 applies to appellant’s claims for childhood sexual abuse, she was not
required to present a tort claim to the District in order to raise those claims. (Gov. Code,
§ 905, subd. (m).) The trial court erred by holding that the alleged perpetrators of the
wrongful conduct had to be employees, volunteers, representatives or agents of the public
entity for section 340.1 to apply.3
DISPOSITION
We reverse the judgment and remand the matter to the trial court for further
proceedings on appellant’s claims for childhood sexual abuse. Appellant shall recover her
costs on appeal.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
3
The complaint alleges claims for harassment and other nonsexual abuse claims.
Having failed to file a valid government tort claim, appellant may not pursue those claims.
(See Gov. Code, § 911.2, subd. (a); Shirk, supra, 42 Cal.4th at p. 208.) The exemption
under Government Code section 905, subdivision (m) applies only to her childhood sexual
abuse claims.
13
Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Law Offices of Robert S. Gerstein and Robert S. Gerstein; Law Offices of
Robert H. Tourtelot, PLC and Robert H. Tourtelot for Plaintiff and Appellant.
Woo Houska LLP, Carol A. Woo and Maureen M. Houska for Defendants
and Respondents.