Filed 1/7/20 Roe v. Victor Elementary School Dist. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JANE ROE, a Minor, etc.,

Plaintiff and Appellant,

v.

VICTOR ELEMENTARY SCHOOL DISTRICT,

Defendant and Respondent.

E069073

(Super.Ct.No. CIVDS1512932)

OPINION

APPEAL from the Superior Court of San Bernardino County. Thomas S. Garza, Judge. Reversed.

The Zalkin Law Firm, Irwin M. Zalkin and Devin M. Storey for Plaintiff and Appellant.

Orrock Popka Tucker & Dolen, Raymond F. Dolen and Dennis G. Popka for Defendant and Respondent.

In this negligence action, Jane Roe sued Victor Elementary School District (the District) for alleged negligence concerning sexual assault perpetrated against her by a teacher of the District while she was attending elementary school. The trial court granted summary judgment against Roe because she failed to petition the superior court under Government Code section 946.6 (section 946.6) for relief from compliance with the claims presentation requirement of the Government Claims Act (Gov. Code, § 810 et seq.).

While this appeal was pending, the Governor signed into law Assembly Bill No. 218 (2019-2020 Reg. Sess.) (Assembly Bill 218), which exempts claims for childhood sexual assault from the Government Claims Act. At Roe’s request, we continued oral argument while the bill was awaiting executive action. After Assembly Bill 218 was signed into law, we requested supplemental briefs addressing the effect of the new law on this case. Because Assembly Bill 218 expressly applies to all cases pending on the date of enactment, even if the action would have otherwise been barred under prior law, we conclude that Assembly Bill 218 applies to this action. We therefore reverse the judgment entered against Roe.

BACKGROUND

Roe was born in April 1999. In 2005, she attended first grade at Del Rey Elementary School, a school in the District. From September 2005 to December 2005, she was sexually molested on multiple occasions by Rogelio Cardenas, who was her art teacher at the school.

In August 2014, when Roe was 15 years old, she attempted to commit suicide and was hospitalized. While undergoing treatment at an inpatient mental health facility after the attempt, Roe disclosed to her therapist that she had been molested by a teacher at Del Rey Elementary School. The therapist told R.C., Roe’s mother, about the allegation. In April 2015, Roe and R.C. were interviewed by a police officer, and Roe identified Cardenas as the teacher who molested her. It appears that in that interview, Roe learned that Cardenas was incarcerated.

On May 29, 2015, Roe filed a claim for damages with the District, along with an application for leave to present a late claim. In the late claim application, she reported that she “did not appreciate the wrongfulness of the [District’s] and [Cardenas’s] conduct until after she first reported the abuse in August 2014. Thus, her cause of action did not accrue until August 2014.” On June 11, 2015, the District denied the claim as untimely and advised Roe to apply for leave to present a late claim. In response, on August 6, 2015, Roe refiled her application for leave to present a late claim with the District and resubmitted her claim. On August 18, 2015, the District responded and informed Roe that her “Application for Leave to Present Late Claim was previously denied on June 11, 2015.” Attached to the District’s response was the June 11 letter denying her original claim and a June 11 letter denying her application to present a late claim. It is not clear whether Roe had previously received the letter denying her late claim application.

On September 9, 2015, Roe commenced this tort action against the District in the superior court. She alleged that she “first disclosed her sexual abuse in August 2014” and that she had been “incapable of ascertaining that the Perpetrator’s conduct was harmful to her, or that she suffered injury as a result of the Perpetrator’s conduct until after [she] disclosed the sexual abuse.”

The District moved for summary judgment on the ground that Roe failed to petition the superior court under section 946.6 for leave to file a complaint and on the alternative ground that Roe failed to present a government tort claim within one year of the date of accrual, arguing that Roe’s cause of action accrued before August 2014. After the motion was filed but before Roe filed her opposition, the Supreme Court decided J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 655-656 (J.M.), in which it concluded that a minor plaintiff must timely petition the superior court for relief from the claims presentation requirement under section 946.6 even if the public entity wrongly denied the minor’s late claim application. Roe argued that J.M. did not apply retroactively. The trial court disagreed, concluded that J.M. applied retroactively, found that Roe’s cause of action accrued at the latest when R.C. learned of the abuse in August 2014, and granted the motion because Roe failed to petition the court for relief from the claims presentation requirement under section 946.6 before filing suit.

DISCUSSION

While this appeal was pending, on October 13, 2019, Governor Newsom signed Assembly Bill 218 into law, which became effective on January 1, 2020. Among other changes made, Assembly Bill 218 eliminated the requirement that any victims of childhood sexual assault claiming money or damages from a local public entity comply with the Government Claims Act before filing suit. (Gov. Code, § 905.) Specifically, section 905 of the Government Code now provides that “[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 assault” are exempted from the claims presentation requirement for “all claims for money or damages against local public entities.” (Gov. Code, § 905, subd. (m).) Previously—at the time that Roe filed her lawsuit—only claims arising from conduct that occurred on or after January 1, 2009, were exempted from the claims presentation requirement. (Former Gov. Code, § 905, subd. (m).) The parties agree and we concur that Roe’s claims fall within the definition of childhood sexual assault provided in section 340.1 of the Code of Civil Procedure.

There is a presumption against retroactive application of new statutes “in the absence of a clear indication of a contrary legislative intent,” such as “‘“express language of retroactivity.”’” (Quarry v. Doe I (2012) 53 Cal.4th 945, 955.) That presumption does not apply here because Assembly Bill 218 expressly makes the new claims presentation exemption retroactive. The statute provides: “The changes made to this section by the act that added this subdivision are retroactive and apply to any action commenced on or after the date of enactment of that act, and to any action filed before the date of enactment and still pending on that date, including any action or causes of action that would have been barred by the laws in effect before the date of enactment.” (Gov. Code, § 905, subd. (p).) This statutory language is clear and unambiguous.

Given the unequivocal language of Assembly Bill 218’s retroactivity provision, we conclude that Assembly Bill 218 applies retroactively to Roe’s action against the District for negligence relating to the childhood sexual assault she experienced in 2005 by a teacher when she was in second grade. Because Roe’s claim against the District is no longer subject to the Government Claims Act, it necessarily follows that Roe’s failure to petition the superior court for relief from the claims presentation requirement before filing her lawsuit no longer operates as a bar to her lawsuit.

Because Assembly Bill 218 did not become effective immediately, the District urged us not to apply Assembly Bill 218 to this case during the period in between Assembly Bill 218’s passage and its effective date. We declined that invitation. Although Assembly Bill 218 was not effective immediately, our opinion would not have been final before the statute’s effective date. (People v. Garcia (2018) 28 Cal.App.5th 961, 973 [applying Sen. Bill No. 1393 even though its effective date was two months after the opinion was filed because it was “highly unlikely” that the judgment would be final before that date].) The parties filed their supplemental briefs on October 31, 2019. Assembly Bill 218 applies to all litigation pending on January 1, 2020, so it would have been futile for us to apply the law as it existed before that date unless the opinion would have been final on that date. The District does not dispute the applicability of Assembly Bill 218 to this case if the case is not final.

Moreover, the District’s request for us to act quickly and apply the pre-Assembly Bill 218 law was based on misplaced policy arguments about the soundness of Assembly Bill 218. Regardless of any sympathies we might have to those arguments, it was for the Legislature to consider and weigh those arguments and not us. “Our function is not to judge the wisdom of statutes.” (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099.)

In sum, we reverse the judgment entered against Roe for her failure to petition the superior court for relief from the claims presentation requirement because Assembly Bill 218 now excepts Roe’s negligence action against the District from the Government Claims Act.

DISPOSITION

The judgment is reversed. Each party shall bear their own costs of appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

FIELDS

Acting P. J.

RAPHAEL

J.