California Child Sexual Abuse Attorney - Michael Rehm
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A look at the case law:
Procedural and Factual History:
Ed Coats and her foster mother sued the New Haven Unified School District and others alleging that E.D had been sexually abused by one of his high school teachers. The trial court in Alameda County found in favor of the New Haven Unified School District, the court reasoned that E.D Coats and his mother did not comply with the Government Claims Act prior to bringing the lawsuit, specifically that they did not comply with Government Codes section 905 and 935. The Court of Appeal in this case overturned the lower court due to recent changes in the law related to Child Sexual Assault under 340.1.
E.D. Coats was 17 years old and a Junior in High school when one of her high school teachers began “grooming” her and it ultimately led to sexual intercourse multiple times. According to the case:
“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 (Pen. Code, § 261.5, subd. (d).) The school principal had previously disciplined the teacher for inappropriate contact with a student on at least one occasion, but the conduct had not been reported to any authorities and no steps had been taken to monitor the teacher's contact with other female students.”
“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.”
Attorney Michael Rehm's Analysis:
This case deals with several issues surrounding the recent changes in the law regarding Childhood Sexual Assault, under Code of Civil Procedure 340.1. It deals with the relationship between the Government Claims Act, Government Code section 935 which provides how local entities may prescribe claims presentation requirements, and CCP 340.1. The suit was against the New Haven Unified School District, a governmental entity, which normally would be governed by the rules relating to the Government Claims Act, which requires filing a notice e of claim with the governmental agency within six months of the incident.
The court discussed the Government Claims Act and the history of CCP 340.1:
“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; §§ 911.2, 945.4.) Section 905 enumerates a number of exceptions to the claims requirement, including “[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” arising out of conduct occurring on or after January 1, 2009. (§ 905, subd. (m).)”
“Prior to the enactment of subdivision (m) of section 905, the California Supreme Court held in Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 212–214 (Shirk), that despite an amendment to Code of Civil Procedure section 340.1 reviving certain claims of childhood sexual abuse that previously had been barred due to expiration of the statute of limitations, the plaintiff's suit was precluded by her failure to present a timely claim to the entity under the Government Claims Act. Subdivision (m) was added to section 905 in 2008, in direct response to Shirk.”
The court also discussed how Government Code 935 can apply in these matters:
“The section 905, subdivision (m), exception undisputedly applies to E.D.'s claims. Pursuant to section 935, however, local entities may prescribe claims presentation requirements, subject to specified restrictions, for claims “which are excepted by Section 905” and “are not governed by any other statutes or regulations expressly relating thereto.” The District's board policy 3320 provides, “Any and all claims for money or damages against the district must be presented to and acted upon in accordance with Board policy and administrative regulation. Compliance with district procedures is a prerequisite to any court action . . . .” The District's administrative regulation for board policy 3320 provides, “Claims for money or damages specifically excepted from Government Code [section] 905 shall be filed no later than six months after the accrual of the cause of action.”
Attorney Michael Rehm's Analysis:
The lower court in this case rejected the victim's lawsuit, reasoning that they did not comply with Government Code 935, which allows a local ordinance to place their own notice requirement for matters that Government Code 905 does not apply to. The Court of Appeal discussed:
“Respondent's brief relies on a series of cases considering the interplay between sections 905 and 935, culminating in the Fifth District Court of Appeal's since-vacated decision in Big Oak Flat-Groveland Unified School Dist. v. Superior Court (2018) 21 Cal.App.5th 403 (Big Oak Flat). Big Oak Flat, decided while this appeal was pending, was the first, and to our knowledge remains the only, case to specifically consider the interplay between section 935 and subdivision (m) of section 905. It held that section 935 authorized adoption of local claims requirements for claims excepted by section 905, subdivision (m), rejecting arguments similar to appellants' in the trial court and here.
The California Supreme Court granted review of Big Oak Flat in June 2018 (S247975), and we granted appellants' unopposed request to stay briefing on this appeal pending the court's decision. At the time, only appellants' reply brief was outstanding.
In July 2018, the Legislature adopted Senate Bill No. 1053, which amended section 935 by adding a new subdivision (f): “Any procedure authorized to be prescribed by this section does not apply to claims of childhood sexual abuse made as described in subdivision (m) of Section 905. This subdivision is declaratory of existing law.”
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).)”
Attorney Michael Rehm's analysis:
The legislature got involved and amended Government Code 935 to avoid results like the one the lower court in this matter had come to. At this point, the case shifts to a discussion on whether the changes toe CCP 3401.1 violate constitutional principles, specifically the violation on ex post facto laws and Due Process principles.
“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 (U.S. Const. art. I, § 10, cl. 1; Cal. Const., art. I, § 9) and the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and the California counterpart.”
“As the District acknowledges, “[t]he constitutional prohibition on ex post facto laws usually applies to criminal statutes.” (Massachusetts v. Schering-Plough Corp. (D. Mass. 2011) 779 F.Supp.2d 224, 233 (Schering-Plough Corp.).) Legislation reviving the statute of limitations on civil law claims does not violate constitutional principles (Roman Catholic Bishop of Oakland v. Superior Court (2005) 128 Cal.App.4th 1155, 1161 (Bishop of Oakland); Liebig v. Superior Court (1989) 209 Cal.App.3d 828, 831–834.) As the District's cases illustrate, “a civil statute may violate the Ex Post Facto Clause if it is ‘ “so punitive either in purpose or effect as to negate [the State's] intention' to deem it “civil.” ' ” (Schering-Plough Corp., at p. 233, quoting Kansas v. Hendricks (1997) 521 U.S. 346, 361.) “Only the ‘clearest proof' will suffice to override the Legislature's stated intent and render a nominally civil statute penal for ex post facto purposes. [Citation.]” (21st Century Insurance Co. v. Superior Court (2005) 127 Cal.App.4th 1351, 1362, quoting Smith v. Doe (2003) 538 U.S. 84, 92)”
The Court of Appeal rejected the argument and noted: “the treble damages provision added to Code of Civil Procedure section 340.1, subdivision (b), is not at issue, as appellants did not allege any cover-up that could trigger the provision. The only question before us on this appeal is whether appellants' suit is barred by their failure to timely file a claim with the District under its administrative regulation for board policy 3320. The constitutionality of retroactive application of the new treble damages provision has no bearing on whether Assembly Bill 218 successfully revived cases that have “not been litigated to finality” and “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.”
The Court of Appeal, although specifically explaining ex post facto was not an issue before the court, did discuss the issue:
The New Haven School District argument:
“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)”
“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.”
The Court of Appeals view of New Haven's argument:
“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 Code of Civil Procedure section 340.1 providing a one-year revival period for claims of liability for failure to take reasonable steps to prevent childhood sexual abuse that had expired under the prior statute of limitations. In a suit filed during this revival window, the court held that allowing the plaintiff to seek punitive damages would not violate the ex post facto clause. The court rejected the defendant's reliance upon Landgraf, supra, 511 U.S. 244, for the proposition that punitive damages are criminal in nature because the Landgraf court's comments on this point were dicta, as its ex post facto concerns were discussed in analyzing whether the Legislature intended the law to operate retroactively, not whether the law in fact violated the ex post facto clause. (Bishop of Oakland, at pp. 1163–1164.)
Furthermore, the Bishop of Oakland court explained, “to the extent ex post facto concerns were implicated by Landgraf, they are substantially different from those at issue here. Landgraf did not concern a common law tort claim. Instead, it concerned the retroactive application of a new statutory punitive damage remedy to preexisting conduct which occurred at a time when no such damages were recoverable. This distinction animated the Landgraf court's analysis: ‘In cases like this one, in which prior law afforded no relief, [the new law] can be seen as creating a new cause of action, and its impact on parties' rights is especially pronounced.' ([Landgraf, supra, 511 U.S.] at p. 284.) As a result, the new statute resembled ‘a statute increasing the amount of damages available under a preestablished cause of action.' (Id. at [pp. 284–285].) Neither Landgraf nor the cases it cites concerned or considered the ability to recover punitive damages as part of a statute reviving a time-lapsed common law tort cause of action. (See Usery v. Turner Elkhorn Mining Co. (1976) 428 U.S. 1, [award of benefits under federal Coal Mining Health and Safety Act]; De Veau v. Braisted (1960) 363 U.S. 144 [New York State Waterfront Commission Act precluding convicted felons from collecting or receiving union dues]; Louis Vuitton S.A. v. Spencer Handbags Corp.[, supra,] 765 F.2d 966 [treble civil damages under criminal trademark counterfeiting law].)”
Attorney Michael Rehm's Analysis:
The Court seemed to heavily rely on the distinction between a common law cause of action vs. a new statutory right created. This is a relatively new amendment to an existing common law cause of action (sexual assault), and the defense on these cases will continue to attack the Constitutionality of the Amendment. The Court had a very persuasive argument regarding ex post facto violations; however, the court was notably silent on whether retroactive imposition of punitive damages, or other aspects of the amendment in general would comply with Due Process principles. The Due Process argument is obviously something to look out for from the defense in these cases, as well as Constitutional challenges to the treble damage's clause, which allows victims to sue for treble damages if they can show a “cover-up” occurred. Treble damages allow the court to triple the amount of actual damages awarded, a major hammer for the victims to use in these cases.
The Foster Mothers Claim:
Although the Court of Appeal ruled that the victim of the assault could proceed with her suit, they did throw out the Mothers suit for emotional distress in this matter. The court discussed:
“Appellants' contention that Government Code section 905, subdivision (m), applies to Coats's emotional distress claims turns on whether they are claims “made pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual assault.” The plain language of Code of Civil Procedure section 340.1 demonstrates it is aimed at direct victims of sexual assault.”
“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.”
The Court concluded:
“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 Code of Civil Procedure section 340.1. Given the policy underpinnings of the Government Claims Act, it would require an even greater stretch to conclude the Legislature intended the section 905, subdivision (m), exception to the claims presentation requirement to apply to relatives' claims.”
Attorney Michael Rehm's Analysis:
This case shows how family members of the abused minor have a cause of action for emotional distress against the perpetrators. The Court limited the ability of parents to bring suit, at least in regard to suits against Government Agencies, but the Court did specifically note these are valid causes of action in these cases, and if there are not Statute of Limitations issues, should be explored in all cases. The Court is basically stating that they agree with the Victims on this issue as well, calling their argument reasonable, but the Court was limited as to what it could do, since the legislature had not specifically addressed the issue, which is also a signal to the legislature to do just that.
This case provides a good summary of the current issues being dealt with on the ground floor, in the actual courtroom. The case also provides a glimpse of what direction the defense in these cases will attempt to attack the statute in the future. It is similar to the defense in an auto accident cases, where they will many times admit that their client caused the accident, but that the injuries are not as severe as the victims are claiming. Here, it appears the Defense will potentially admit the sexual assault occurred but attempt to argue the statute in and of itself is unconstitutional, and hence, the lawsuit must be dismissed. For the victims reading this, I would take comfort in the fact that the defense's argument is a stretch, and they will likely have the same result the defense had in this case: a loss and the victims having their day in court.
If you are a victim of abuse as a child, and you were abused by a Teacher, Coach, School Employee, Priest/Clergy, or as a member of the Boy Scouts, or just in general, and would like a free consultation, call Attorney Michael Rehm at (800) 978-0754.