Filed 2/22/18; pub. order 3/16/18 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIFTH APPELLATE DISTRICT

BIG OAK FLAT-GROVELAND UNIFIED
SCHOOL DISTRICT et al.,                                           F074265
     Petitioners,
                                                          (Super. Ct. No. CV59658)
                  v.

THE SUPERIOR COURT OF TUOLUMNE                                  OPINION
COUNTY,
     Respondent;

JANE DOE,
     Real Party in Interest.
         ORIGINAL PROCEEDING; petition for writ of mandate. Kevin M. Seibert,
Judge.
         Johnson Schachter & Lewis, Jason Michael Sherman, Alesa Rose Schachter; Law
Offices of Benjamin L. Ratliff and Benjamin L. Ratliff for Petitioners.
         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 and Holly N. Boyer
for Real Party in Interest.
                                           -ooOoo-

       Petitioners, bring this writ petition, requesting that this court issue a writ of
mandate directing the trial court to vacate its order overruling petitioners’ demurrers to
Jane Doe’s first amended complaint, and to enter a new order sustaining their demurrers.
Petitioners’ demurrers were based on Doe’s failure to present a government claim to
petitioner school district (district) before commencing her judicial action against
petitioners. The trial court concluded Doe’s claim was statutorily exempt from the claim
presentation requirement. We are called upon to interpret the interaction of two
provisions of the Government Claims Act (Gov. Code, § 810, et seq.; “the Act”) to
determine whether they required Doe to present a government claim to a local public
entity on her cause of action for childhood sexual abuse under Code of Civil Procedure
section 340.1 prior to filing suit on that claim. This presents a question of first
impression. We conclude the Legislature exempted such claims from the claim
presentation requirement of the Act, but permitted local public entities to impose their
own claim presentation requirements, which the district did. Because Doe failed to allege
timely compliance with the district’s claim presentation requirement, or an excuse for
failure to comply, we conclude petitioners’ demurrers to the first amended complaint
should have been sustained. We therefore grant petitioners’ petition for a writ of
mandate.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Doe’s first amended complaint alleges that, while she was a 15-year-old
sophomore at a high school within the district, she was molested by a teacher, Jeremy
Monn, between April 2013 and July 2013. Monn demanded that Doe keep the facts of
the sexual abuse a secret. There were red flags in the teacher’s conduct that should have

                                               2.
caused the district a reasonable suspicion that Monn was engaging in sexual abuse with
students. Petitioners counseled Monn about his behavior, but failed to report it to law
enforcement authorities. Petitioners suggested Monn find employment elsewhere; he
became a teacher in another district. There, he molested another student and that
molestation was reported to police. After Monn was arrested, Doe began to understand
he had manipulated and exploited her, and she reported the molestation to her guardian.
Her guardian reported it to police, and a deputy district attorney instructed the guardian to
delay bringing a civil case until Monn’s criminal prosecution was resolved. Doe and her
guardian followed this advice, although they informed the district of Doe’s molestation
the day after it was reported to police. After Monn was convicted, Doe filed her action
on September 14, 2015. The first amended complaint contained causes of action against
petitioners for negligence, negligent supervision, negligent hiring or retention, negligent
failure to report the abuse, negligence per se, and sexual harassment. The original
complaint alleged that no claim was presented to the district because under Government
Code section 905, subdivision (m),1 her claim for childhood sexual abuse was exempt
from the claim presentation requirement.
       Petitioners demurred to the first amended complaint, asserting that, although
section 905(m) exempted Doe’s claim from the claim presentation requirements of the
Act, section 935 authorized a local public entity, such as the district, to impose its own
claim presentation requirement on claims exempted by section 905; the district had
enacted a policy and regulation imposing such a claim presentation requirement, and Doe
had failed to comply with it. Petitioners contended Doe’s action against them was barred
by her failure to present a timely claim to the district before filing suit.
       Doe opposed the demurrer. The trial court overruled the demurrer, concluding the
Legislature’s intent in enacting section 905(m) was to exempt claims of childhood sexual

1      All further statutory references are to the Government Code unless otherwise indicated.
Section 905, subdivision (m), will be referred to as section 905(m).

                                               3.
abuse from the requirement of presenting a government claim. The trial court stated
there was no authority in section 935 allowing the district’s ordinances or regulations to
circumvent that exemption. Petitioners brought this petition for a writ of mandate to
overturn the trial court’s decision, asserting sections 905 and 935 are clear and, although
section 905(m) exempts causes of action for childhood sexual abuse from the state-
imposed claim presentation requirement, section 935 authorizes local public entities to
impose their own claim presentation requirements, which the district did. Because Doe
did not comply with the district’s claim presentation requirement, petitioners contend her
action is barred. We issued an order to show cause why the relief sought should not be
granted.2
                                        DISCUSSION
I.     Review of Order Overruling Demurrer
       “ ‘An order overruling a demurrer is not directly appealable, but may be reviewed
on appeal from the final judgment. [Citation.] Appeal is presumed to be an adequate
remedy and writ review is rarely granted unless a significant issue of law is raised, or
resolution of the issue would result in a final disposition as to the petitioner.’ ” (Boy
Scouts of America National Foundation v. Superior Court (2012) 206 Cal.App.4th 428,
438 (Boy Scouts).) Here, writ review is warranted because the petition raises a significant
issue regarding whether a government claim must be presented to a local public entity,
pursuant to an enactment of that entity, before an action may be filed against that entity
on a claim of childhood sexual abuse pursuant to Code of Civil Procedure section 340.1.
Additionally, unless Doe can amend to allege facts excusing her failure to present a claim



2       We grant both parties’ requests for judicial notice, with the exception of Doe’s September
22, 2016, request. Exhibit No. 1 to that request duplicates exhibit No. 1 to Doe’s October 28,
2016, request for judicial notice. Exhibit Nos. 2 and 3 to the September 22, 2016, request are
irrelevant to the issues in this case. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th
1057, 1063 [“only relevant material may be [judicially] noticed”], overruled on other grounds in
In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)

                                                4.
to the district, resolution of the petition in petitioners’ favor will result in a final
disposition of the action in their favor.
       “A demurrer tests the legal sufficiency of the factual allegations in a complaint.”
(Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558.)
“The standard of review for an order overruling a demurrer is de novo.” (Casterson v.
Superior Court (2002) 101 Cal.App.4th 177, 182.) Although the matter arrives in this
court “by the unusual path of a writ petition challenging” the order, “the ordinary
standards of demurrer review still apply.” (City of Stockton v. Superior Court (2007) 42
Cal.4th 730, 746–747 (Stockton).) In reviewing the ruling on a demurrer, we use the de
novo standard, exercising our independent judgment concerning whether the complaint
states a cause of action as a matter of law. (Traders Sports, Inc. v. City of San Leandro
(2001) 93 Cal.App.4th 37, 43.) We also review issues of statutory construction de novo.
(Regents, at p. 558.) “We deem to be true all material facts properly pled.” (Traders
Sports, at p. 43.) If no liability of petitioners exists as a matter of law, we must hold that
the demurrer should have been sustained and grant the writ petition. (Ibid.)
II.    Childhood Sexual Abuse
       “Historically, claims of childhood sexual abuse were governed by a one-year
statute of limitations,” but the statute was tolled until the child reach the age of majority.
(Tietge v. Western Province of the Servites, Inc. (1997) 55 Cal.App.4th 382, 385.) In
1986, the Legislature added Code of Civil Procedure section 340.1, which extended the
limitations period for some claims of childhood sexual abuse. (Tietge, at p. 385.) In
1990, the Legislature rewrote that section, to provide that the time for commencement of
an action for childhood sexual abuse “ ‘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 occurs later.’ ” (Ibid.) In
1998, the Legislature expanded the scope of the statute to include claims against third


                                                5.
parties, other than the individual perpetrator. (Boy Scouts, supra,206 Cal.App.4th at
p. 440.) The 1998 amendment “ ‘expanded the limitations period for actions against
entities that employed or supervised abusers until three years from the date the plaintiff
discovers that psychological injury occurring after age 18 was due to childhood sex
abuse, but no later than the plaintiff’s 26th birthday. [Citations.]’ [Citation.] Thus, ‘the
1998 amendment imposed an absolute bar against instituting a lawsuit against third party
defendants once the plaintiff reached the age of 26.’ ” (Ibid.) In its most recent
amendment in 2002, the Legislature enacted an exception to that absolute bar, applicable
to a third party defendant who “ ‘ “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 the future by that person.” ’ ” (Ibid.)
       The current version of Code of Civil Procedure section 340.1, subdivision (a),
provides:

              “(a) In 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.” (Code Civ.
       Proc., § 340.1, subd. (a).)



                                             6.
       “ ‘Childhood sexual abuse’ [is defined 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.3
III.   Government Claim Presentation Requirements
       The intent of the Act “ ‘is not to expand the rights of plaintiffs in suits against
governmental entities, but to confine potential governmental liability to rigidly delineated
circumstances: immunity is waived only if the various requirements of the act are
satisfied.’ ” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) There are
multiple policies or purposes underlying the provisions of the Act that require
presentation of a claim to a public entity prior to filing suit and prescribe limited time
frames in which to do so. (City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894,
902–903 (Ontario).) “Requiring a person allegedly harmed by a public entity to first
present a claim to the entity, before seeking redress in court, affords the entity an
opportunity to promptly remedy the condition giving rise to the injury, thus minimizing
the risk of similar harm to others. [Citations.] The requisite timely claim presentation
before commencing a lawsuit also permits the public entity to investigate while tangible
evidence is still available, memories are fresh, and witnesses can be located. [Citations.]
Fresh notice of a claim permits early assessment by the public entity, allows its governing
board to settle meritorious disputes without incurring the added cost of litigation, and
gives it time to engage in appropriate budgetary planning. [Citations.] The notice
requirement under the government claims statute thus 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.” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 213 (Shirk).) “ ‘It

3      The specified sections include all or portions of Penal Code sections 266j, 285, 286, 288,
288a, 289, and 647.6. (Code Civ. Proc., § 340.1, subd. (e).)

                                               7.
is well-settled that claims statutes must be satisfied even in face of the public entity’s
actual knowledge of the circumstances surrounding the claim.’ ” (Stockton, supra, 42
Cal.4th at p. 738.)
       “Government Code section 905 requires that ‘all claims for money or damages
against local public entities’ be presented to the responsible public entity before a lawsuit
is filed. Failure to present a timely claim bars suit against the entity.” (Stockton, supra,
42 Cal.4th at p. 734, fn. omitted; §§ 905, 945.4.) The term “local public entity” includes
a school district. (§ 900.4; Johnson v. San Diego Unified School Dist. (1990) 217
Cal.App.3d 692, 699.) A claim relating to a cause of action for personal injury must be
presented to the local public entity “not later than six months after the accrual of the
cause of action.” (§ 911.2, subd. (a).) The date of accrual of the cause of action for claim
presentation purposes is the same as the date of accrual that applies for statute of
limitations purposes in the absence of a claim presentation requirement. (§ 901.) “The
general rule for defining the accrual of a cause of action sets the date as the time ‘when,
under the substantive law, the wrongful act is done,’ or the wrongful result occurs, and
the consequent ‘liability arises.’ [Citation.] In other words, it sets the date as the time
when the cause of action is complete with all of its elements.” (Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 397.) “Generally, a cause of action for childhood sexual
molestation accrues at the time of molestation.” (Shirk, supra, 42 Cal.4th at p. 210.) The
basic rule of accrual is modified by the discovery rule. (Jolly v. Eli Lilly & Co. (1988) 44
Cal.3d 1103, 1109.) “Under the discovery rule, the statute of limitations begins to run
when the plaintiff suspects or should suspect that her injury was caused by wrongdoing,
that someone has done something wrong to her.” (Id. at p. 1110, fn. omitted.)
       Under the Act, “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 (Bodde) (2004) 32 Cal.4th 1234, 1239, fn. omitted (Bodde).) “ ‘[T]he
filing of a claim for damages “is more than a procedural requirement, it is a condition


                                               8.
precedent to plaintiff’s maintaining an action against defendant, in short, an integral part
of plaintiff’s cause of action.” ’ ” (Id. at p. 1240.) “[F]ailure to allege facts
demonstrating or excusing compliance with the claim presentation requirement subjects a
claim against a public entity to a demurrer for failure to state a cause of action.” (Id. at
p. 1239, fn. omitted.)4
       Section 905 lists 15 exceptions to the requirement that a claim be presented to a
local public entity before an action for money or damages may be filed against it. One of
the exceptions, which was added to the statute in 2008, is for “[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.” (§ 905(m).) Doe contends her action is one for
childhood sexual abuse under Code of Civil Procedure section 340.1, therefore
section 905(m), exempted her action from the claim presentation requirement.
Accordingly, she was not required to comply with, and her complaint was not required to
allege compliance with, the claim presentation requirement of section 905. Instead, her
first amended complaint alleged that, pursuant to section 905(m), she was not required to
present a claim to the district before filing her action against the district and its
employees.
       Section 935, however, provides in part:

              “(a) Claims against a local public entity for money or damages
       which are excepted by Section 905 from Chapter 1 (commencing with
       Section 900) and Chapter 2 (commencing with Section 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.




4       Presentation of a claim to the employing public entity is also a prerequisite to bringing an
action against a public employee or former public employee for an injury resulting from an act or
omission in the scope of that employee’s public employment. (Julian v. City of San Diego
(1986) 183 Cal.App.3d 169, 175–176.)

                                                 9.
               “(b) The procedure so prescribed may include a requirement that a
        claim be presented and acted upon as a prerequisite to suit thereon.”
        (§ 935, subds. (a), (b).)
        Petitioners contend the district enacted such a regulation on January 4, 2008,
before Doe’s cause of action accrued, when it enacted Board Policy 3320 and
Administrative Regulation 3320. Petitioners’ Board Policy 3320 provides, in pertinent
part:

        “Any and all claims for money or damages against the district shall be
        presented to and acted upon in accordance with Board policy and
        administrative regulation. [¶] . . . [¶] Compliance with this policy and
        accompanying administrative regulation is a prerequisite to any court
        action, unless the claim is governed by statutes or regulations which
        expressly free the claimant from the obligation to comply with district
        policies and procedures and the claims procedures set forth in the
        Government Code.”
        Administrative Regulation 3320 provides, in part:

               “The following time limitations apply to claims against the district:

               “1. Claims for money or damages relating to a cause of action for
        death or for injury to person, personal property or growing crops shall be
        presented to the Governing Board not later than six months after the accrual
        of the cause of action. (Government Code 905, 911.2)

               “2. Claims for money or damages specifically excepted from
        Government Code 905 shall be filed not later than six months after the
        accrual of the cause of action. (Government Code 905, 911.2, 935)”
        The administrative regulation also specifies procedures for presentation of late
claims and sets time limits for the board’s action on claims presented, in accordance with
the Act.
IV.     Statutory Interpretation
        A.     Plain meaning
        Interpretation and application of statutes are questions of law, which we review de
novo. (Boy Scouts, supra, 206 Cal.App.4th at p. 446.) “Our fundamental task in
construing a statute is to ascertain the intent of the lawmakers so as to effectuate the


                                             10.
purpose of the statute.” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) In
construing legislative intent, we give “the language its usual, ordinary import and
accord[] 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.”
(A.M. v. Ventura Unified School Dist. (2016) 3 Cal.App.5th 1252, 1257.) If there is no
ambiguity in the language, “then we presume the lawmakers meant what they said, and
the plain meaning of the language governs. [Citations.] If, however, the statutory terms
are ambiguous, then we may resort to extrinsic sources, including the ostensible objects
to be achieved and the legislative history. [Citation.] In such circumstances, we ‘ “select
the construction that comports most closely with the apparent intent of the Legislature,
with a view to promoting rather than defeating the general purpose of the statute, and
avoid an interpretation that would lead to absurd consequences.” ’ ” (Day, at p. 272.)
       Section 905 provides: “There shall be presented in accordance with Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section 910) all claims
for money or damages against local public entities except any of the following . . . .”
Section 945.4 provides that, with exceptions not relevant here, “no suit for money or
damages may be brought against a public entity on a cause of action for which a claim is
required to be presented in accordance with Chapter 1 (commencing with Section 900)
and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written
claim therefor has been presented to the public entity and has been acted upon by the
board, or has been deemed to have been rejected by the board.” The plain meaning of the
language of these statutes requires that all claims for money or damages against a local
public entity be presented to that local public entity, and be rejected or deemed rejected
by it, before the claimant may file an action against the public entity in court, unless the
claim falls within one of the listed exceptions. Section 905(m) excepts from the claim
presentation requirement “[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.”


                                             11.
Thus, under section 905, no claim is required to be presented under the Act prior to filing
suit against a local public entity for damages resulting from childhood sexual abuse.
       The plain meaning of the language of section 935 permits the local public entity to
impose its own claim presentation requirement on claims that section 905 excepts from
the Act’s claim presentation requirements, as long as the local claim presentation period
is no shorter than the period prescribed by the Act (six months, in this case). (§§ 935,
subds. (a), (b), (c), 911.2, subd. (a).) The district’s Board Policy 3320 and Administrative
Regulation 3320 impose such a claim presentation requirement on claims exempted by
section 905 from the claim presentation requirements of the Act. They require
presentation of a claim falling within any of the 15 exempt categories of claims within six
months after accrual of the cause of action.
       Doe asks that we consider the legislative history of the enactment of
subdivision (m) of section 905, but she has not identified any language of the section that
is ambiguous and requires interpretation. If statutory language is clear and
unambiguous, there is no need for construction; we resort to the legislative history of the
statutory provision only if its terms are ambiguous. (Ontario, supra, 12 Cal.App.4th at
p. 901.) Section 905(m) is clear. There is no dispute that it exempts causes of action for
childhood sexual abuse from the claim presentation requirements of the Act. Thus,
because no ambiguity in section 905(m) has been shown, we have no occasion to
consider the legislative history of that provision.
       The parties disagree, however, about the effect of section 935 on Doe’s claim
presentation obligations. As the court in Ontario stated, “Sections 905 and 935, read
together, are perfectly clear. Section 905 creates exemptions from the state-mandated
claims procedure; section 935 permits local public entities to enact their own
procedures to cover the exempted claims. Section 935, by its terms, covers all ‘[c]laims
against a local public entity for money or damages which are excepted by Section 905.’ ”
(Ontario, supra, 12 Cal.App.4th at pp. 901–902.) Thus, a local public entity may impose


                                               12.
its own claim presentation requirement on any of the types of claims listed in section 905,
including claims described in section 905(m).
       Section 935, subdivision (a), provides that claims against local public entities that
are excepted by section 905 from the Act’s claim presentation requirement, “and which
are not governed by any other statutes or regulations expressly relating thereto,” are
governed by the local public entity’s procedures. Doe contends her claim under
section 905(m) is governed by another statute, because section 905(m) expressly
mentions Code of Civil Procedure section 340.1. We disagree.
       Section 935 is concerned with the claim procedures for claims against local public
entities. Subdivision (a) permits a local public entity to impose claim procedures on
claims that are exempted from the Act’s claim presentation requirement by section 905.
Subdivision (b) of section 935 permits those procedures to include a claim presentation
requirement. Subdivisions (c), (d), and (e) impose requirements and restrictions on what
those procedures may include. In context, the language “not governed by any other
statutes or regulations expressly relating thereto” refers to statutes or regulations
expressly addressing local public entity claim procedures. (§ 935, subd. (a).) Code of
Civil Procedure section 340.1 sets the statute of limitations on actions for childhood
sexual abuse. It does not address procedures for prelitigation claims against local public
entities. Code of Civil Procedure section 340.1 is not another statute that governs claim
presentation procedures for claims of childhood sexual abuse, and it does not preclude a
local public entity from applying its own claim presentation requirement to causes of
action brought pursuant to that statute.
       Our interpretation is supported by California School Employees Assn. v. Azusa
Unified School Dist. (1984) 152 Cal.App.3d 580 (Azusa). Azusa was an action by a
union to recover unpaid wages for its members. The defendant district argued, among
other things, that the action was barred by the union’s failure to comply with the claim
presentation requirements of the Act. (Azusa, at p. 584.) The court concluded that, while


                                             13.
the wage claim was exempt from the Act’s claim presentation requirements pursuant to
section 905, subdivision (c), the district had adopted its own policy requiring presentation
of claims for wages. (Azusa, at pp. 586–587.) Presentation of a claim pursuant to that
policy was a prerequisite to filing suit for unpaid wages. (Id. at p. 587.) Relying on the
“ ‘not governed by any other statutes’ ” language, the union argued the wage statute took
precedence over the claim filing procedures prescribed by the Act. (Azusa, at p. 587,
fn. 3.) The court rejected the union’s argument: “This argument is without merit. [The
wage statute] does not prescribe the procedures for filing a claim for wages. Rather, this
section only gives rise to the duty to pay wages. A reasonable construction of the
language of Government Code section 935, when taken as a whole, permits a local entity
to adopt the claims procedures prescribed by the Government Code or some other
procedure for claims otherwise excepted from the filing requirements of Government
Code section 900 et seq.” (Ibid.)
       Similarly, in Tapia v. County of San Bernardino (1994) 29 Cal.App.4th 375
(Tapia), the petitioner sought retroactive payment of salary and benefits from her
employment with the county in a dispute over whether she was disabled. The county
demurred, asserting the petitioner had failed to allege compliance with the claim
presentation requirements. Although claims for salary were exempted by section 905,
subdivision (c) from the claim presentation requirement set out in the Act, pursuant to
section 935 the county had adopted an ordinance requiring presentation of a claim. In
accordance with section 935, it required presentation of a claim for all categories of
claims listed as exceptions in section 905. (Tapia, at p. 383.) The trial court found the
ordinance did not apply because the claim was governed by the wage statute in issue and
therefore was excluded by section 935, subdivision (a). (Tapia, at pp. 383–384.) The
appellate court disagreed. It concluded the statute in issue, like the statute in Azusa, did
“ ‘not prescribe the procedures for filing a claim.’ ” (Tapia, at p. 384.) The fact that the
statute prescribed a substantive duty on which the petitioner’s claim was based was


                                             14.
“irrelevant to the failure to prescribe the procedures for presenting a claim.” (Ibid.)
Because the statute did not prescribe the procedures for presenting a claim, the
petitioner’s claim was not “governed thereby,” and she was required to present a claim to
the county under the claims ordinance. (Ibid.)
       Doe argues that, unlike Azusa and Tapia, the statute here, Code of Civil Procedure
section 340.1, governs the procedure for bringing a claim under that section. That section
prescribes “the time for commencement of the action” for childhood sexual abuse. (Code
Civ. Proc., § 340.1, subd. (a).) It does not mention, much less prescribe, the time or
procedure for presenting a claim to a public entity prior to commencing an action for
childhood sexual abuse. We agree with Azusa and Tapia that the type of statute referred
to in section 935, subdivision (a), is a statute that prescribes procedures, such as claim
presentation, for processing claims against a local public entity prior to filing suit against
it.
       The Supreme Court in Shirk, supra, 42 Cal.4th 201 made the distinction between a
statute of limitations and a statute or regulation imposing a claim presentation
requirement. In Shirk, the court considered whether a 2002 amendment to Code of Civil
Procedure section 340.1, which provided that certain causes of action for childhood
sexual abuse that otherwise would have been barred solely by the applicable statute of
limitations were revived during 2003, also revived a cause of action for childhood sexual
abuse that was barred by the plaintiff’s failure to present a timely claim to the local public
entity defendant. (Shirk, at pp. 204–205.) The court stated: “In plain language, that
provision expressly limited revival of childhood sexual abuse causes of action to those
barred ‘solely’ by expiration of the applicable statute of limitations. [Citation.] The term
‘ “[s]tatute of limitations” is the collective term applied to acts or parts of acts that
prescribe the periods beyond which a plaintiff may not bring a cause of action.’ ” (Id. at
pp. 211–212.) The revival provision of Code of Civil Procedure section 340.1, however,
made “no reference whatsoever to any revival of the period in which to present a claim


                                               15.
under the government claims statute.” (Shirk, at p. 212.) A cause of action barred by
failure to present a timely claim “is not barred ‘solely’ by lapse of the applicable statute
of limitations, the phrasing that the Legislature used in the revival provision . . . . [T]he
government claim presentation deadline is not a statute of limitations. Had the
Legislature intended to also revive . . . the claim presentation deadline under the
government claims statute, it could have easily said so. It did not.” (Id. at p. 213.)
Accordingly, the court concluded the claim presentation provisions of the Act were not
affected by the amendment to the provision of Code of Civil Procedure section 340.1,
which affected only the statute of limitations applicable to causes of action for childhood
sexual abuse. (Shirk, at p. 213.)
       We conclude Code of Civil Procedure section 340.1 is not another statute
expressly relating to government claims for childhood sexual abuse against a local public
entity, which governs such claims and precludes the local public entity from imposing its
own claim presentation procedures on such claims pursuant to section 935.
       Doe also argues that language in the district’s provisions renders the district’s
claim presentation requirement inapplicable. The district’s Board Policy 3320 provides:
“Compliance with this policy and accompanying administrative regulation is a
prerequisite to any court action, unless the claim is governed by statutes or regulations
which expressly free the claimant from the obligation to comply with district policies and
procedures and the claims procedures set forth in the Government Code.” While section
905(m) “free[s] the claimant [on a childhood sexual abuse cause of action] from the
obligation to comply with . . . the claims procedures set forth in the Government Code,” it
does not “free the claimant from the obligation to comply with district policies and
procedures.” Section 935 expressly permits the district to impose its own claim
procedures, despite the provision in section 905 excepting causes of action for childhood
sexual abuse from compliance with the Act’s claim presentation procedures. Thus, the




                                              16.
exception in Board Policy 3320 does not excuse compliance with the district’s claim
presentation requirement in this case.
       B.     Implied repeal of section 935
       Doe’s interpretation of section 905 as exempting childhood sexual abuse claims
from local public entity claim presentation requirements, in addition to the claim
presentation requirements set out in the Act, would effectively repeal or negate
section 935 as to those claims. Doe has not pointed us to any language in either statute
that would support this interpretation. Rather, she contends the legislative history of the
amendment adding subdivision (m) to section 905 indicates this was the Legislature’s
intent. As previously discussed, however, Doe has not identified any ambiguous
language in section 905(m) that requires interpretation by looking to the legislative
history of that provision for the legislative intent. (See DaFonte v. Up-Right, Inc. (1992)
2 Cal.4th 593, 601.)
       Even if we were to look at the legislative history of section 905(m), we could not
construe that provision as eliminating the claim presentation requirement imposed by the
district’s enactments. In 2007, the California Supreme Court issued its decision in Shirk,
concluding that, although the Legislature had amended Code of Civil Procedure
section 340.1 to lengthen the limitations period for bringing actions for childhood sexual
abuse and had revived certain causes of action for childhood sexual abuse on which the
statute of limitations had already run, it had not changed the requirement that the
claimant present a timely government claim prior to filing suit against a public entity.
(Shirk, supra, 42 Cal.4th at pp. 210–214.) Because the plaintiff had not presented a
timely claim, her action was barred. (Id. at pp. 210, 213–214.)
       In 2008, the Legislature responded by enacting section 905(m). (Stats. 2008,
ch. 383, § 1.) Doe presented two items she asserts express the legislative intent behind
the 2008 amendment. A bill analysis by the Assembly Committee on Judiciary, dated
June 24, 2008, stated: “This bill provides that childhood sexual abuse claims against


                                            17.
local public entities are not subject to the Tort Claims Act.”5 It noted supporters of the
bill complained “that the six-month claim requirement of the Tort Claims Act unfairly
penalizes child sexual abuse victims who are abused by public employees and that they
should be given the same legal protections as all other victims.” Further, “[t]his 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.” (Italics added.) The bill’s author stated the bill
“would respond to the Shirk decision 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.” (Italics added.) The assembly committee analysis also noted there were (at that
time) 12 other types of claims exempted from the Act’s claim presentation requirements.
For each type, a separate code section set forth the applicable statute of limitations for
that type of claim; the same would be true of childhood sexual abuse, because Code of
Civil Procedure section 340.1 “sets forth timeframes within which civil actions based
upon childhood sexual abuse must be brought.” The Senate’s analysis, dated July 14,
2008, contains similar information.
       In the legislative history of section 905(m) that was presented to this court, there
was no mention of section 935.6 The Legislature did not repeal, amend, or make an

5       “Tort Claims Act” is a phrase that has been used to refer to the Act. In Stockton, supra,
42 Cal.4th 730, the Supreme Court recognized that “Tort Claims Act” was a misnomer because
the Act also governs at least some contract claims. It therefore “adopt[ed] the practice of
referring to the claims statutes as the ‘Government Claims Act,’ to avoid the confusion
engendered by the informal short title ‘Tort Claims Act.’ ” (Stockton, at p. 734.)
6       This omission is peculiar. The context in which government employees most regularly
interact with children is through local public entities. And the Legislature’s clear intent of
adding subdivision (m) to section 905 was to make it easier for certain child sexual abuse
claimants to sue the government without having to first present a government claim. It is odd,
then, that the legislative history does not mention section 935, which provides local public
entities a way that could, in effect, thwart that purpose. (See § 935, subds .(a)–(b).) One
possible explanation is that when the Legislature amended section 905, it was unaware of
section 935, or failed to understand its impact. While our rules of statutory construction have us

                                               18.
exception to the portion of section 935 that permits a local public entity to prescribe its
own claim procedures for the categories of claims excepted by section 905 from the claim
procedures of the Act. The legislative history did not indicate claims described in
section 905(m) were to be treated differently from claims described in the other
subdivisions of section 905, for which local public entities are authorized to prescribe
their own claim procedures. The legislative history referred to exempting causes of
action for childhood sexual abuse from the Act. It did not mention exempting them from
local entities’ own claim presentation requirements or from the effect of section 935.
Although the bill’s author opined that the bill would “ ‘treat[] Section 340.1 actions
against public entities the same as those against private entities,’ ” the language chosen
did not have that effect.
       “[T]he judicial function is simply to ascertain and declare what is in terms or in
substance contained in the statute, not to insert what has been omitted, or omit what has
been inserted. [Citation.] Courts cannot depart from the meaning of language in a statute
which is free from ambiguity, even though the consequence would be to defeat the object
of the statute.” (Martinez v. Allstate Ins. Co. (1968) 261 Cal.App.2d 754, 757.)
Section 905(m) unambiguously exempts causes of action for childhood sexual abuse
from the Act’s claim presentation requirements. Equally unambiguously, section 935
permits a local public entity to enact its own claim presentation procedures for causes of
action exempted from the Act’s claim requirements by section 905. “The Legislature is
deemed to be aware of existing statutes, and we assume that it amends a statute in light of
those preexisting statutes.” (Shirk, supra, 42 Cal.4th at p. 212.) Accordingly, we assume
that the Legislature, by amending section 905 without making a corresponding change to
section 935, intended to leave section 935 intact. It is a cardinal rule of statutory

presume the Legislature is aware of existing statutes when it amends the law, (at p. 20, post) we
acknowledge that this rule is often a necessary fiction to foster consistency in the interpretation
of statutes. If the conclusion we reach under the rules of statutory construction that we must
follow does not reflect the Legislature’s intentions, it is in the Legislature’s province, not ours, to
address the issue.

                                                 19.
construction that the court must not insert what has been omitted, or omit what has been
inserted. (Code Civ. Proc., § 1858; Boy Scouts, supra, 206 Cal.App.4th at p. 446.) “We
may not, under the guise of construction, rewrite the law.” (California Fed. Savings &
Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.) We cannot rewrite
section 905(m) to exempt causes of action for childhood sexual abuse from the claim
presentation requirements imposed by local entities, in addition to those imposed by the
Act. Nor can we rewrite section 935 to exclude childhood sexual abuse causes of action
described in section 905(m) from section 935’s authorization to local public entities to
impose their own claim presentation requirements on causes of action in the categories
listed in section 905.
       “Generally, we will presume that the enactment of a statute does not impliedly
repeal existing statutes.” (Apartment Assn. of Los Angeles County, Inc. v. City of
Los Angeles (2009) 173 Cal.App.4th 13, 22.) “Where two statutes touch upon a common
subject, we must construe them with reference to each other and seek to harmonize them
in such a way that neither becomes surplusage.” (Lincoln Place Tenants Assn v. City of
Los Angeles (2007) 155 Cal.App.4th 425, 440.) “The governing principles in
determining whether a statute repeals another by implication are well established.
[Citation.] The law shuns repeals by implication. [Citation.] In fact, ‘ “[t]he
presumption against implied repeal is so strong that, ‘To overcome the presumption the
two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot
have concurrent operation. The courts are bound, if possible, to maintain the integrity of
both statutes if the two may stand together.’ ” ’ ” (Stop Youth Addiction, Inc. v. Lucky
Stores, Inc. (1998) 17 Cal.4th 553, 569.) Sections 905 and 935 are not
“ ‘ “ ‘irreconcilable, clearly repugnant, and so inconsistent that the two cannot have
concurrent operation.’ ” ’ ” (Stop Youth Addiction, at p. 569.) They are, in fact,
coordinated. “Section 905 creates exemptions from the state-mandated claims procedure;
section 935 permits local public entities to enact their own procedures to cover the


                                            20.
exempted claims. Section 935, by its terms, covers all ‘[c]laims against a local public
entity for money or damages which are excepted by Section 905.’ ” (Ontario, supra, 12
Cal.App.4th at pp. 901–902.)
       Doe argues that, even in Ontario, the court stated “that, in applying the ‘plain
meaning’ rule, ‘[l]iteral construction should not prevail if it is contrary to the legislative
intent apparent in the statute.’ ” (Ontario, supra, 12 Cal.App.4th at p. 902.) The intent
apparent in section 905(m) was to exempt causes of action for childhood sexual abuse
from the state imposed claim presentation requirements of the Act. There was no
legislative intent apparent in section 905, or in the amendment that added
subdivision (m), to amend, repeal, or render nugatory section 935, either with respect to
causes of action described in section 905 in general or with respect to causes of action
described in section 905(m) specifically.
       Doe has not identified any ambiguity in the language of section 905(m) or
section 935 that would warrant resort to the legislative history of either statute. We
decline to hold that any portion of section 935 has been impliedly repealed by the
enactment of section 905(m), when the two can be harmonized to give effect to both.
       C.     Legislative Counsel Bureau letter
       Doe also refers us to a letter from the Legislative Counsel Bureau (Legislative
Counsel) to Senator Jim Beall, dated March 11, 2016, apparently as evidence of
legislative intent. The Legislative Counsel states that “section 935, subdivision (a)
permits a school district to adopt a procedure for the presentation of a claim excepted by
section 905 only if it is not governed by a statute or regulation that expressly relates to
the claim.” It opines: “Section 905 lists childhood sexual abuse claims among its
exceptions, and defines those claims in terms of the statute that establishes the timeframe
for victims of childhood sexual abuse to file lawsuits—that is, ‘[c]laims made pursuant to
Section 340.1.’ By definition, then, such claims are expressly governed by statute. It
follows necessarily that such claims do not fall within the class of claims excepted by


                                              21.
section 905 for which a local public entity may adopt its own claims procedure.” (Fns.
omitted.) The letter, however, was written years after the legislation enacting section
905(m) was passed.
       “Opinions of the Legislative Counsel ordinarily are ‘prepared to assist the
Legislature in its consideration of pending legislation’ [citation], and therefore such
opinions often shed light on legislative intent.” (St. John’s Well Child & Family Center
v. Schwarzenegger (2010) 50 Cal.4th 960, 982.) In contrast, when an opinion was not
part of the legislative history, but was prepared long after adoption of the statute, “[i]t is,
rather, a post hoc expression of the Legislative Counsel’s opinion of what the Legislature
meant when it adopted [the statute]; and like any such opinion—even that of an appellate
court—it is only as persuasive as its reasoning.” (Grupe Development Co. v. Superior
Court (1993) 4 Cal.4th 911, 922.) The Legislative Counsel’s opinion does not consider
or apply Azusa and Tapia, which held, contrary to the Legislative Counsel’s conclusion,
that the phrase “ ‘not governed by any other statutes or regulations expressly relating
thereto,’ ” as used in section 935, refers to statutes or regulations that prescribe the
procedures for presenting a claim to public entity. (Azusa, supra, 152 Cal.App.3d at
p. 587, fn. 3; Tapia, supra, 29 Cal.App.4th at p. 384.) As previously discussed, Code of
Civil Procedure section 340.1 is not such a statute. It does not govern claim presentation,
but sets out the statute of limitations for filing an action in court.
       Further, the cases on which the opinion relies for the proposition that, effective
January 1, 2009, the government claim presentation requirement no longer applied to
causes of action for childhood sexual abuse, did not discuss the effect of section 935.
(See S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal.App.4th 712, 721–722,
fn. 6; J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 333, fn. 6.) The
Legislative Counsel’s opinion likewise neglects to mention or discuss that statute.
Consequently, we do not find the Legislative Counsel’s opinion persuasive.




                                               22.
       D.     Other arguments
       We reject Doe’s argument that the district’s regulation was barred because a local
public entity cannot enact a regulation that is inconsistent with state statute. While
liability of local government entities for torts is a matter of state concern, and thus may
not be regulated by local ordinances or regulations inconsistent with state law as
established by the Government Claims Act, the district did not enact inconsistent
legislation, but merely exercised the authority affirmatively granted to it by the state in
section 935. (Ontario, supra, 12 Cal.App.4th at pp. 899–900.)
       Doe argues the district failed to show that its board policy and administrative
regulation barred her action due to failure to present a timely claim. She asserts Board
Policy 3320 and Administrative Regulation 3320 are inconsistent with each other, and
the board policy excludes causes of action described in Code of Civil Procedure
section 340.1 from the claim presentation requirement. Her contention is without merit.
       Board Policy 3320 identifies the causes of action for which a claim must be
presented prior to filing suit. Administrative Regulation 3320 complements it by
prescribing the time periods within which claims must be presented. Board Policy 3320
states: “Any and all claims for money or damages against the district shall be presented
to and acted upon in accordance with Board policy and administrative regulation. [¶] . . .
[¶] Compliance with this policy and accompanying administrative regulation is a
prerequisite to any court action, unless the claim is governed by statutes or regulations
which expressly free the claimant from the obligation to comply with district policies and
procedures and the claims procedures set forth in the Government Code.” The board
policy requires claim presentation unless a statute or regulation expressly frees the
claimant from compliance with both the claim procedures of the Act and the claim
procedures established by the district. While section 905(m) freed Doe from compliance
with the claim presentation requirements of the Act, Doe has cited no statute or




                                             23.
regulation that expressly freed her from compliance with the district’s claim presentation
requirements. Section 935, in fact, required such compliance.
       Administrative Regulation 3320 sets out the time limits for presentation of claims
against the district:

              “1. Claims for money or damages relating to a cause of action for
       death or for injury to person, personal property or growing crops shall be
       presented to the Governing Board not later than six months after the accrual
       of the cause of action. (Government Code 905, 911.2)

              “2. Claims for money or damages specifically excepted from
       Government Code 905 shall be filed not later than six months after the
       accrual of the cause of action. (Government Code 905, 911.2, 935)”
       The first subdivision merely repeats the time requirements of the Act, referencing
the applicable statutes. Doe seems to contend the second subdivision is inconsistent with
Board Policy 3320 because it does not contain the same limitation excluding claims
“governed by statutes or regulations which expressly free the claimant from the
obligation to comply with district policies and procedures and the claims procedures set
forth in the Government Code” that is set out in Board Policy 3320. The second
subdivision governs those claims excepted from section 905, but for which the district
requires presentation of a claim. If the district did not require presentation of a claim, or
if a statute or regulation freed the claimant from the district’s claim presentation
requirement, no time limit would be needed because no claim presentation would be
required. In other words, Administrative Regulation 3320 would not apply. Thus, the
provisions of Board Policy 3320 and Administrative Regulation 3320 are not
inconsistent.
       Doe appears to argue the district has not shown it complied with section 53051,
which requires public entities to file a statement containing certain identifying
information with the Secretary of State and the county clerk in each county where the
public entity has an office; it also requires the Secretary of State and county clerks to
maintain the information in a Roster of Public Agencies. Section 946.4 provides that,

                                             24.
when a claim must be presented prior to filing a lawsuit against a public entity, the failure
to present a claim does not constitute a bar or defense to the maintenance of a suit against
the public entity if the public entity has not provided the statement containing
information for the Roster of Public Agencies or if the information in the Roster “is so
inaccurate or incomplete that it does not substantially conform to the requirements of
Section 53051.” (§ 946.4, subd. (a)(2).) “The purpose of the statute requiring
information for the Roster of Public Agencies (§ 53051) was to provide a means for
identifying public agencies and the names and addresses of designated officers needed to
enable or assist a person to comply with any applicable claims procedure.” (Tubbs v.
Southern Cal. Rapid Transit Dist. (1967) 67 Cal.2d 671, 676.) Relieving a plaintiff of the
claim presentation requirements when the public entity fails to comply with
section 53051 provides an incentive for public entities to comply with that section.
(Wilson v. San Francisco Redevelopment Agency (1977) 19 Cal.3d 555, 562.)
       In this proceeding we are reviewing the trial court’s ruling on a demurrer.
Compliance with the claim presentation requirement is an element of Doe’s cause of
action against the district. (Bodde, supra, 32 Cal.4th at p. 1240.) To survive a demurrer,
Doe’s complaint must allege facts either demonstrating or excusing compliance with the
requirement of claim presentation. (Id. at pp. 1240–1241.) Doe’s complaint did not
allege compliance. It also did not allege facts showing Doe’s compliance was excused by
the district’s failure to maintain accurate information in the Roster of Public Agencies, in
compliance with section 53051. Doe has not asserted she could amend her complaint to
truthfully allege the district’s failure to comply with section 53051 as a means of
excusing her failure to present a timely claim to the district.
       We conclude none of Doe’s contentions excuse her failure to allege compliance or
excuse from compliance with the claim presentation requirements of the district’s board
policy and administrative regulation.




                                             25.
                                     DISPOSITION
       Let a peremptory writ of mandate issue directing respondent court to vacate its
order overruling petitioners’ demurrers to the first amended complaint and to enter a new
order sustaining the demurrers. Respondent court is directed to determine whether any
request by Doe for leave to amend her pleading should be granted. Petitioners are
entitled to their costs on appeal.




                                                               _____________________
                                                                            HILL, P.J.
WE CONCUR:


 _____________________
POOCHIGIAN, J.


 _____________________
DETJEN, J.




                                           26.
Filed 3/16/18

                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT




BIG OAK FLAT-GROVELAND UNIFIED
SCHOOL DISTRICT et al.,                                              F074265
     Petitioners,
                                                            (Super. Ct. No. CV59658)
                  v.

THE SUPERIOR COURT OF TUOLUMNE                             ORDER GRANTING
COUNTY,                                                     REQUESTS FOR
     Respondent;
                                                             PUBLICATION
JANE DOE,
     Real Party in Interest.


       As the nonpublished opinion filed on February 22, 2018, in the above entitled
matter hereby meets the standards for publication specified in the California Rules of
Court, rule 8.1105(c), it is hereby ordered that the opinion be certified for publication in
the Official Reports.



                                                                            HILL, P.J.

WE CONCUR:



POOCHIGIAN, J.



DETJEN, J.


                                             27.
