Filed 3/13/20 Big Oak Flat-Groveland Unified School District v. Superior Court CA5

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

BIG OAK FLAT-GROVELAND UNIFIED SCHOOL DISTRICT et al.,

Petitioners,

v.

THE SUPERIOR COURT OF TUOLUMNE COUNTY,

Respondent;

JANE DOE,

Real Party in Interest.

F074265

(Super. Ct. No. CV59658)

OPINION

ORIGINAL PROCEEDING; petition for writ of mandate. Kevin M. Seibert, Judge.

Johnson Schachter & Lewis, Jason Michael Sherman and Alesa Rose Schachter for Petitioners Big Oak Flat-Groveland Unified School District and Dave Urquhart.

Law Offices of Benjamin L. Ratliff, Benjamin L. Ratliff; McCormick Barstow and Anthony N. Demaria for Petitioner Jim Frost.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Petitioners.

Lozano Smith, Sloan R. Simmons, Nicholas W. Smith; Keith J. Bray for California School Boards Association’s Education Legal Alliance as Amicus Curiae on behalf of Petitioners.

Weintraub Tobin, Brendan J. Begley and Melissa M. Whitehead for California Association of Joint Powers Authorities as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Manly Stewart & Finaldi, John C. Manly, Vince W. Finaldi; Law Offices of Kenneth N. Meleyco, Kenneth N. Meleyco; Esner, Chang & Boyer, Holly N. Boyer and Shea S. Murphy for Real Party in Interest.

-ooOoo-

Petitioners petitioned this court for a writ of mandate directing the trial court to vacate its order overruling their demurrers to respondent Jane Doe’s first amended complaint, and to enter a new order sustaining their demurrers. We ordered issuance of the writ. The Supreme Court granted review, then transferred the matter back to this court with directions to vacate our previous decision and to reconsider the cause in light of the recent amendment of Government Code section 935, one of the statutes we construed in our original decision. We vacated our prior decision. Subsequently, Doe notified us of the amendments of two other statutes we originally construed, section 905 and Code of Civil Procedure section 340.1, which also affect our decision in this matter. Having reconsidered the matter in light of these statutory amendments, we now deny the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

Doe filed a first amended complaint against Big Oak Flat-Groveland Unified School District and two of its school principals, as well as a former teacher, Jeremy Monn, alleging claims of childhood sexual abuse based on the actions of Monn. Doe alleged that she did not present a claim to the district under the Government Claims Act (the Act; § 810 et seq.) because, under section 905, former subdivision (m), her claim for childhood sexual abuse was exempt from the claim presentation requirement.

Big Oak demurred to Doe’s first amended complaint, asserting that, although section 905, former subdivision (m), exempted Doe’s claim from the claim presentation requirements of the Act, former section 935 authorized a local public entity, such as a school district, to impose its own claim presentation requirement on claims exempted by section 905. Big Oak asserted the district had enacted a policy and regulation imposing such a claim presentation requirement, and Doe had failed to comply with it. Big Oak contended Doe’s action was barred by her failure to present a timely claim to the district before filing suit.

The trial court overruled the demurrer, concluding the Legislature’s intent in enacting section 905, former subdivision (m), was to exempt claims of childhood sexual abuse from any requirement of presenting a government claim. The trial court stated there was no authority in former section 935 allowing the district’s ordinances or regulations to circumvent that exemption. Big Oak filed a petition for a writ of mandate with this court, to overturn the trial court’s decision. We issued an order to show cause why the relief sought should not be granted.

On February 22, 2018, we issued an opinion finding section 905, former subdivision (m), and former section 935 were unambiguous and harmonious. (Big Oak Flat-Groveland Unified School Dist. v. Superior Court (2018) 21 Cal.App.5th 403 (Big Oak), review granted June 13, 2018, S247975.) Section 905, former subdivision (m), exempted claims of childhood sexual abuse from the state-imposed claim presentation requirement, but former section 935 authorized a local public entity to impose its own claim presentation requirement. (Big Oak, supra, at p. 417.) Because Doe had not alleged compliance with the district’s claim presentation requirements, we ordered issuance of a peremptory writ of mandate, directing the trial court to sustain Big Oak’s demurrer to Doe’s first amended complaint and to determine whether leave to amend should be granted. (Id. at pp. 427–428.)

Doe petitioned the Supreme Court for review, which was granted. While that review was pending, the Governor on July 20, 2018, signed into law Senate Bill No. 1053 (2017–2018 Reg. Sess.) (Senate Bill 1053) which amended section 935, adding a new subdivision that made the section inapplicable to claims of childhood sexual abuse described in section 905, former subdivision (m). (Stats. 2018, ch. 153, § 1, p. 2336, eff. Jan. 1, 2019.) The amendment stated it was declaratory of existing law. The Supreme Court transferred the matter back to this court, to reconsider our decision in light of Senate Bill 1053. We vacated our prior decision and ordered supplemental briefing. The parties filed supplemental briefs discussing the effect of Senate Bill 1053 on our prior decision. (Cal. Rules of Court, rules 8.200(b), 8.528(f).)

Subsequently, Doe advised this court of further statutory amendments, effective January 1, 2020, that affect the decision in this case. The Legislature passed Assembly Bill No. 218 (2019–2020 Reg. Sess.) (Assembly Bill 218), which amended section 905 and Code of Civil Procedure section 340.1. (Stats. 2019, ch. 861, §§ 1, 3, pp. 7093, 7096.) The amendment of Code of Civil Procedure section 340.1 extended the limitations period for claims of childhood sexual assault (previously referred to as childhood sexual abuse), and revived such claims if they had not yet been litigated to finality and would otherwise have been barred by the applicable statute of limitations or claim presentation deadline. (Code Civ. Proc., § 340.1, subds. (a), (q).) It expressly revived any action filed before the date of enactment of the amendment and still pending on that date. (Code Civ. Proc., § 340.1, subd. (r).)

In light of the recent amendments of section 905, section 935, and Code of Civil Procedure section 340.1, we conclude that, to the extent Doe’s claim was barred by the failure to present a timely claim to the district as we previously held, her claim has since been revived and claim presentation is no longer required. Accordingly, Big Oak is no longer entitled to the relief requested, and we deny the petition for a writ of mandate.

DISCUSSION

I. Standard of Review

The construction of statutes and the ascertainment of legislative intent are questions of law, which we review de novo. (In re Jennifer S. (2009) 179 Cal.App.4th 64, 68.) Whether an amended statute applies to conduct that predates its enactment is also reviewed de novo. (Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022, 1028.)

II. Rules of Statutory Interpretation

“The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] ‘In determining intent, we look first to the language of the statute, giving effect to its “plain meaning.” ’ ” (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) If the plain language of the statute is clear and unambiguous, we presume the Legislature meant what it said, and the plain meaning governs. (Stephens v. County of Tulare (2006) 38 Cal.4th 793, 802.) “If the statutory terms are ambiguous, we may examine extrinsic sources, including the ostensible objects to be achieved and the legislative history.” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) We do not construe statutes in isolation; the language of the statute must be construed in the context of the entire statutory scheme of which it is a part. (Ibid.)

III. Background of Statutory Provisions

Doe’s first amended complaint alleged she was molested by Monn, a high school teacher employed by the district, from April 2013 through July 2013, when she was 15 years old. She commenced her action against Big Oak on September 14, 2015. In 2013, Code of Civil Procedure section 340.1, former subdivision (e), defined childhood sexual abuse as “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 [specified sections of the Penal Code] … at the time the act was committed.” (Stats. 2002, ch. 149, § 1, p. 600.) Code of Civil Procedure section 340.1, former subdivision (a), provided a cause of action for childhood sexual abuse could be brought against the perpetrator of the abuse and against third parties whose negligent or intentional conduct was a legal cause of the abuse, and that “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.” (Stats. 2002, ch. 149, § 1, p. 599.)

In 2013, when Doe’s claim arose, all claims for money or damages against local public entities were required to be presented to the public entity and acted on, or deemed denied, before a lawsuit could be filed, with specified exceptions. (§§ 905, 945.4; City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734.) A claim was also required to be presented to the local public entity before suit could be brought against one of its employees, based on an injury caused by an act or omission of the employee within the scope of his or her employment. (§§ 950, 950.2, 950.6.) A claim relating to a cause of action for personal injury was required to be presented to the local public entity “not later than six months after the accrual of the cause of action.” (§ 911.2, subd. (a).) Failure to present a timely claim barred suit against the entity and the employee. (City of Stockton, supra, at p. 734; §§ 945.4, 950.2.)

Among the exceptions in section 905 to the requirement that a claimant present a claim to the public entity before filing suit was former subdivision (m), which was added in 2008. It excepted from the claim presentation requirement: “Claims made pursuant to [s]ection 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual abuse. This subdivision shall apply only to claims arising out of conduct occurring on or after January 1, 2009.” (§ 905, former subd. (m), added by Stats. 2008, ch. 383, § 1, p. 2479.)

When it added former subdivision (m) to section 905, the Legislature did not amend former section 935, subdivisions (a) and (b), which continued to provide:

“(a) Claims against a local public entity for money or damages which are excepted by [s]ection 905 from Chapter 1 (commencing with [s]ection 900) and Chapter 2 (commencing with [s]ection 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.” (Stats. 1965, ch. 653, § 13.)

Pursuant to former section 935, the district adopted provisions requiring presentation of a claim prior to filing suit against it on a claim for money damages.

In February 2018, based on the law then in effect, we issued a writ of mandate, directing the trial court to vacate its order overruling Big Oak’s demurrer and enter a new order sustaining the demurrer. In July 2018, while review of that decision was pending in the Supreme Court, the Legislature amended section 935 to add new subdivision (f), which provides: “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 [s]ection 905. This subdivision is declaratory of existing law.” (§ 935, subd. (f), added by Stats. 2018, ch. 153, § 1, p. 2336.) The Supreme Court transferred the matter back to this court to reconsider our decision in light of that amendment. In 2019, the Legislature amended section 905 and Code of Civil Procedure section 340.1, effective January 1, 2020. (Stats. 2019, ch. 861, §§ 1, 3, pp. 7093–7097.) The effect of the 2019 amendments on the issues before us must also be considered.

IV. Effect of 2018 Amendment of Section 935

In 2018, Senate Bill 1053 amended section 935 to add new subdivision (f), stating that section 935 “does not apply to claims of childhood sexual abuse made as described in subdivision (m) of [s]ection 905.” (Stats. 2018, ch. 153, § 1, p. 2336, eff. Jan. 1, 2019.) The legislative history of Senate Bill 1053 indicated that the earlier amendment of section 905 by Senate Bill No. 640 (2008 Reg. Sess.) (Senate Bill 640) which added subdivision (m) (Stats. 2008, ch. 383, § 1, p. 2479, eff. Jan. 1, 2009), closed a loophole in the statutory scheme by making an explicit exception to the claim presentation requirement for claims for damages suffered as a result of childhood sexual abuse. (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1053 (2017–2018 Reg. Sess.) as amended May 24, 2018, pp. 3–4.) The analysis continued:

“Despite this additional legislation making it clear the Legislature intended [Code of Civil Procedure] [s]ection 340.1 to apply to claims against local public entities, numerous public entities, including school districts, have been using another statute, [s]ection 935 [], to circumvent and undermine [Senate Bill] 640 and [s]ection 905[, subdivision ](m) []. These public entities are attempting to defeat lawsuits alleging claims of childhood sexual abuse based on claims-presentations requirements the local public entities have set in their own charter, ordinance, or regulation. This bill explicitly prohibits this practice and effectuates the intent of the Legislature in enacting [Senate Bill] 640, thereby ensuring the delayed discovery provisions in [Code of Civil Procedure] [s]ection 340.1 apply to all childhood sexual abuse claims against local public entities.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1053 (2017–2018 Reg. Sess.) as amended May 24, 2018, p. 4.)

The analysis of Senate Bill 1053 added: “This bill makes clear that [s]ection 935 [] does not apply to claims of childhood sexual abuse, ensuring the clear intent of [Senate Bill] 640 is effectuated and the delayed discovery provisions of [Code of Civil Procedure] section 340.1 control.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1053 (2017–2018 Reg. Sess.) as amended May 24, 2018, p. 5.) The Assembly’s analysis described the purpose and effect of Senate Bill 1053 in similar terms. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1053 (2017–2018 Reg. Sess.) as amended May 24, 2018, pp. 1, 4–5.) Both the Assembly and the Senate noted the bill provided the amendment was declaratory of existing law. (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1053 (2017–2018 Reg. Sess.) as amended May 24, 2018, pp. 1, 3, 7; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1053 (2017–2018 Reg. Sess.) as amended May 24, 2018, p. 2.)

“ ‘Generally, statutes operate prospectively only.’ ” (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475.) “[S]tatutes do not operate retrospectively unless the Legislature plainly intended them to do so. [Citations.] A statute has retrospective effect when it substantially changes the legal consequences of past events.” (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) However, “a statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions predating its enactment.” (Ibid., italics omitted.) This is because the true meaning of the statute remains the same. (Ibid.) “We look to ‘the surrounding circumstances’ as well as the Legislature’s intent when determining whether a statute changed or merely clarified the law.” (In re Marriage of Fellows (2006) 39 Cal.4th 179, 184.)

While the Legislature enacts legislation, it is the judicial branch that interprets it. (McClung v. Employment Development Dept., supra, 34 Cal.4th at p. 472.) Consequently, even if a later Legislature purports to declare what an earlier Legislature intended when it enacted or amended an earlier statute, that declaration is neither binding on the court nor conclusive in construing the statute, although it is entitled to consideration. (Id. at p. 473.)

In our prior decision in this matter, we determined that, although section 905, former subdivision (m), expressly exempted claims of childhood sexual abuse from the state-imposed claim presentation requirement, former section 935 permitted local public entities to impose their own claim presentation requirements. By enacting Senate Bill 1053, which added to section 935 a provision that any local entity’s claim presentation requirement imposed pursuant to section 935 did not apply to claims of childhood sexual abuse and stating that this provision was “declaratory of existing law,” the Legislature attempted to interpret existing law contrary to our interpretation, and to declare what an earlier Legislature intended by its legislation. Because we are not bound by the Legislature’s interpretation, determination of the effect of Senate Bill 1053 on our prior decision would present questions of statutory interpretation and Legislative intent, i.e., whether the amendment was declaratory of existing law and, if not, whether the Legislature intended to make Senate Bill 1053 retroactive, so that it would apply to claims like Doe’s that arose prior to enactment of Senate Bill 1053. We need not address these questions, however, because we conclude the subsequent amendment of Code of Civil Procedure section 340.1 and its effect on Doe’s claim render that issue moot.

V. 2019 Amendments

After the Supreme Court transferred this matter back to this court, the Legislature amended section 905 and Code of Civil Procedure section 340.1, effective January 1, 2020. (Stats. 2019, ch. 861, §§ 1, 3, pp. 7093–7097.) The amendments revived certain claims of childhood sexual abuse.

A. Code of Civil Procedure section 340.1

Assembly Bill 218 made several changes to Code of Civil Procedure section 340.1. (Stats. 2019, ch. 861, § 1, pp. 7093–7094.) It renamed “childhood sexual abuse” (Code Civ. Proc., § 340.1, former subd. (a)), now calling it “childhood sexual assault” (Code Civ. Proc., § 340.1, subd. (a)). It extended the limitations period for filing an action for damages suffered as a result of childhood sexual assault; the action must now be filed “within 22 years of the date the plaintiff attains the age of majority or within five 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 assault, whichever period expires later.” (Ibid.) It also added express provisions for revival of certain claims:

“(q) 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.

“(r) The changes made to the time period under subdivision (a) as amended by the act that amended this subdivision in 2019 apply to and revive 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.” (Code Civ. Proc., § 340.1, subds. (q), (r).)

Under these subdivisions, a claim for childhood sexual assault that had not been litigated to finality as of January 1, 2020, or was still pending when Assembly Bill 218 was enacted, is revived; if it was still pending on the date of enactment, it may continue to be prosecuted, even if it would have been barred under prior law by the failure to present a timely government claim.

In our original opinion, we concluded Doe’s claim was barred by the law then in effect, because she failed to present a claim within the time period prescribed by the district’s claim presentation requirements. Nothing in our record indicates her claim has been litigated to finality. Big Oak’s demurrer was overruled in the trial court, leaving her action pending. Although our original decision ordered that a writ be issued directing the trial court to sustain the demurrer, it did not order dismissal, but directed the trial court to determine whether leave to amend should be granted. Additionally, the Supreme Court granted review of our decision and, at its direction, we have since withdrawn that decision. Consequently, Doe’s action has not been litigated to finality and is still pending. Under the new provisions of Code of Civil Procedure section 340.1, subdivisions (q) and (r), Doe’s claims have been revived. Because the 2018 amendment of section 935 eliminated the requirement of presenting a claim to a local public entity before filing an action alleging childhood sexual abuse or assault, Doe’s claims are not barred by the failure to comply with any claim presentation requirements.

B. Section 905

Assembly Bill 218 also amended section 905. It amended subdivision (m), which already excepted from the Act’s claim presentation requirement “[c]laims made pursuant to [s]ection 340.1 of the Code of Civil Procedure for the recovery of damages suffered as a result of childhood sexual assault.” (Stats. 2019, ch. 861, § 3, p. 7097.) It deleted from section 905, former subdivision (m), the following language: “This subdivision shall apply only to claims arising out of conduct occurring on or after January 1, 2009.” (Stats. 2019, ch. 861, § 3, p. 7097.) As a result of this deletion, all claims of childhood sexual assault are exempt from the claim presentation requirement, even those arising out of conduct occurring prior to January 1, 2009.

Assembly Bill 218 also added new subdivision (p), to section 905, providing: “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.” (Stats. 2019, ch. 861, § 3, p. 7097.) Thus, the exemption from any local public entity’s claim presentation requirement applicable to claims arising out of conduct occurring prior to January 1, 2009, is expressly made retroactive; claims barred under prior law by the failure to present a timely claim are no longer barred by that failure, and may be pursued if they meet the time constraints of Code of Civil Procedure section 340.1. Because Doe’s claims allegedly arose after 2009, this amendment does not directly affect her action. However, it further indicates the legislative intent to broadly remove time barriers from the pursuit of actions for childhood sexual assault.

VI. Revival of Claims

The enactment or amendment of a statute ordinarily operates prospectively, in the absence of a clear indication of a contrary legislative intent. (Quarry v. Doe I (2012) 53 Cal.4th 945, 955 (Quarry).) “In general, a law has a retroactive effect when it functions to ‘ “ ‘change[] the legal consequences of past conduct by imposing new or different liabilities based upon such conduct’ ” ’ that is, when it ‘ “ ‘substantially affect[s] existing rights and obligations.’ ” ’ [Citations.] Ordinarily, considerations of basic fairness militate against such retroactive changes.” (Id. at p. 956.)

“The Legislature has authority to establish—and to enlarge—limitations periods.” (Quarry, supra, 53 Cal.4th at p. 955.) “Enlargement of the statutory period in which civil actions may be brought constitutes a special category within the general topic of the prospective or retroactive application of statutes.… [¶] As long as the former limitations period has not expired, an enlarged limitations period ordinarily applies and is said to apply prospectively to govern cases that are pending when, or instituted after, the enactment took effect.” (Id. at p. 956.) “However, when it comes to applying amendments that enlarge the limitations period to claims as to which the limitations period has expired before the amendment became law—that is, claims that have lapsed—the analysis is different. Once a claim has lapsed (under the formerly applicable statute of limitations), revival of the claim is seen as a retroactive application of the law under an enlarged statute of limitations. Lapsed claims will not be considered revived without express language of revival.” (Id. at p. 957.)

The amendment of Code of Civil Procedure section 340.1, subdivisions (q) and (r), expressly revived lapsed claims. Assembly Bill 218 expressly revived claims of childhood sexual assault that otherwise would have been barred by the expiration of the prior claim presentation deadline or statute of limitations.

The legislative history of Assembly Bill 218 discussed Quarry. It noted that the Quarry court “makes the case against reviving claims that have expired, highlighting the principle that such revival, while within the Legislature’s power, should not be provided lightly. [Citations.] The courts have made clear that important state interests must be at stake to justify such a disruption of the law.” (Sen. Judiciary Com., Analysis of Assem. Bill No. 218 (2019–2020 Reg. Sess.) as amended March 25, 2019, p. 8.) Although Quarry addressed changes in the statute of limitations, rather than changes to, or the elimination of, the time period for presenting a government claim, the court’s reasoning would appear to apply to both.

The Legislature explained its justification of the provision for revival of claims in Assembly Bill 218:

“ ‘Childhood sexual abuse has been correlated with higher levels of depression, guilt, shame, self-blame, eating disorders, somatic concerns, anxiety, dissociative patterns, repression, denial, sexual problems, and relationship problems.’ Given the horrific damage and life-long trauma that can be caused by childhood sexual assault, these claims are arguably worthy of such revival, despite the general disregard for doing so.…

“As argued by the author, there has been a dramatic shift in cultural sensitivities around sexual abuse and a more accepting societal climate for victims. Rather than fearing stigma, victims of past abuse are more likely to be willing to come forward now with claims. There are complex psychological effects that result from being victimized in this way. In addition, the systematic incidence of childhood sexual assault in numerous institutions in this country and the cover-ups that accompanied them arguably make both a revival period and an extended statute of limitations warranted. This bill provides another chance for victims, who are currently barred from pursuing claims based solely on the passage of time, to seek justice.” (Sen. Judiciary Com., Analysis of Assem. Bill No. 218 (2019–2020 Reg. Sess.) as amended March 25, 2019, p. 8, fn. omitted.)

Thus, the Legislature was clear in its intent to provide longer periods in which to initiate actions for childhood sexual assault, and to revive claims that had lapsed through the passage of time. It expressly revived claims that were still pending at the time of enactment of Assembly Bill 218, but would otherwise have been barred by the expiration of the deadline for presenting a government claim.

Consequently, even if we were to conclude the 2018 amendment of section 935, which was enacted in Senate Bill 1053, was not “declaratory of existing law,” as the Legislature asserted, and did not apply retroactively to lapsed claims already barred by a failure to comply with claim presentation requirements (like Doe’s claim), Assembly Bill 218 remedied Doe’s failure to present a timely claim. As amended by Assembly Bill 218, Code of Civil Procedure section 340.1, subdivisions (q) and (r), revived Doe’s cause of action for childhood sexual assault, despite the failure to present a timely claim pursuant to the district’s claim presentation requirement. Sections 905, subdivision (m), and 935, subdivision (f), now exempt claims of childhood sexual assault from any claim presentation requirement, whether imposed by the Act or by an enactment of a local public entity.

Big Oak has not pointed to anything in the text or history of Assembly Bill 218 that contradicts this interpretation or suggests some other construction. In fact, Big Oak declined to file a brief analyzing the effect of Assembly Bill 218 on Doe’s action. Instead, it informed this court it would stand on its prior briefing, which addressed only the effect of the Senate Bill 1053 amendment of section 935.

Accordingly, we conclude that, under the latest versions of section 905, section 935, and Code of Civil Procedure section 340.1, Doe’s claim has been revived and is not barred by the failure to comply with any claim presentation requirement. Big Oak sought a writ of mandate directing the trial court to vacate its order overruling Big Oak’s demurrer to Doe’s first amended complaint, and to enter a new order sustaining the demurrer on the ground Doe failed to comply with the district’s claim presentation requirement. That ground for Big Oak’s demurrer to Doe’s first amended complaint is no longer applicable and the demurrer is properly overruled. We therefore deny Big Oak’s petition for a writ of mandate.

DISPOSITION

The order to show cause is discharged and the petition for writ of mandate is denied. The parties shall bear their own costs in this writ proceeding.

HILL, P.J.

WE CONCUR:

POOCHIGIAN, J.

DETJEN, J.