Filed 3/12/20
                      CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FIRST APPELLATE DISTRICT

                                 DIVISION TWO


 E.D. COATS et al.,
         Plaintiffs and Appellants,
                                             A150490
 v.
 NEW HAVEN UNIFIED SCHOOL                    (Alameda County
 DISTRICT et al.,                            Super. Ct. No. RG16820158)
         Defendants and Respondents.

       Appellants E.D. Coats and her foster mother, Tinella B. Coats sued the
New Haven Unified School District and others alleging that E.D. had been
sexually abused by one of her high school teachers. The trial court entered
judgment on the pleadings due to appellants’ failure to comply with the
Government Claims Act prior to filing suit. Appellants contend the action
was not properly subject to a claim presentation requirement.
       As we will explain, due to amendments of the controlling statutes
enacted during the pendency of this appeal, we will reverse the judgment as
to E.D.’s causes of action and remand for further proceedings. As to Coats’s
causes of action, we will affirm the judgment.
                                BACKGROUND
       According to the allegations of the complaint, in the spring of 2014,
when E.D. was 17 years old and a junior in high school, one of her teachers
began “grooming” her and then engaging in sexual intercourse and oral sex
with her in locations including his classroom and his car in the school


                                        1
parking lot. The situation was discovered in January 2015, after the school’s
alarm system was triggered during a vacation, when no one should have been
inside, and a representative of the alarm monitoring company heard what
sounded like two people engaging in sexual intercourse. A representative
sent to campus was met at the door by the teacher, who refused to let him in
and said his wife was inside; the teacher was then observed leaving with a
young woman later identified as E.D. The teacher admitted engaging in
sexual intercourse with E.D. 10 to 20 times while she was a minor and pled
no contest to one count of felony unlawful sexual intercourse with a minor
(Pen. Code, § 261.5, subd. (d).) The school principal had previously
disciplined the teacher for inappropriate contact with a student on at least
one occasion, but the conduct had not been reported to any authorities and no
steps had been taken to monitor the teacher’s contact with other female
students.
      On June 20, 2016, appellants filed a complaint for personal injuries and
damages against the New Haven Unified School District (District), the school
principal, the teacher, and others. E.D. alleged causes of action against the
teacher for sexual abuse (first cause of action), against the other defendants
for negligence and breach of statutory duties in failing to adequately
supervise teachers and protect students (second and third causes of action),
and against all the defendants for intentional and negligent infliction of
emotional distress (fourth and fifth causes of action). Coats joined in the
claims of intentional and negligent infliction of emotional distress.
      Appellants alleged that they were not required to present a claim to the
District under the Government Claims Act (Gov. Code, § 810 et seq.)1 due to


      1Further statutory references will be to the Government Code except
as otherwise specified.


                                       2
the exemption for claims of sexual abuse of a minor stated in section 905,
subdivision (m). The District and the principal, respondents here, moved for
judgment on the pleadings as to the second through fifth causes of action,
arguing that notwithstanding section 905, subdivision (m), E.D. was required
to present a claim to the District pursuant to a District regulation adopted
under the authority of section 935, and that the section 905, subdivision (m),
exemption did not apply to Coats because she was not an abused minor.
      The trial agreed with respondents, granted the motion and dismissed
the complaint with respect to all claims against the District and the
principal. Judgment was entered on January 3, 2017, and this appeal
followed.
                                DISCUSSION
                                       I.
      Under the Government Claims Act, personal injury claims against
public entities generally must be presented to the entity within six months of
accrual of the injury. (A.M. v. Ventura Unified School Dist. (2016) 3
Cal.App.5th 1252, 1257.) Absent an applicable exception, “failure to timely
present a claim for money or damages to a public entity bars a plaintiff from
filing a lawsuit against that entity.” (State of California v. Superior Court
(2004) 32 Cal.4th 1234, 1239; §§ 911.2, 945.4.) Section 905 enumerates a
number of exceptions to the claims requirement, including “[c]laims made
pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of
damages suffered as a result of childhood sexual abuse” arising out of conduct
occurring on or after January 1, 2009. (§ 905, subd. (m).)
      At the time appellants filed this action, Code of Civil Procedure section
340.1 allowed an action for damages resulting from childhood sexual abuse to
be commenced “within eight years of the date the plaintiff attains the age of



                                       3
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.”
      The section 905, subdivision (m), exception undisputedly applies to
E.D.’s claims. Pursuant to section 935, however, local entities may prescribe
claims presentation requirements, subject to specified restrictions, for claims
“which are excepted by Section 905” and “are not governed by any other
statutes or regulations expressly relating thereto.”2 The District’s board



      2   When this action was filed, section 935 provided:
      “(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.
      (b) The procedure so prescribed may include a requirement that a claim
be presented and acted upon as a prerequisite to suit thereon. If such
requirement is included, any action brought against the public entity on the
claim shall be subject to the provisions of Section 945.6 and Section 946.
     (c) The procedure so prescribed may not require a shorter time for
presentation of any claim than the time provided in Section 911.2.
      (d) The procedure so prescribed may not provide a longer time for the
board to take action upon any claim than the time provided in Section 912.4.
      (e) When a claim required by the procedure to be presented within a
period of less than one year after the accrual of the cause of action is not
presented within the required time, an application may be made to the public
entity for leave to present such claim. Subdivision (b) of Section
911.4, Sections 911.6 to 912.2, inclusive, and Sections 946.4 and 946.6 are
applicable to all such claims, and the time specified in the charter, ordinance
or regulation shall be deemed the ‘time specified in Section 911.2’ within the
meaning of Sections 911.6 and 946.6.”


                                         4
policy 3320 provides, “Any and all claims for money or damages against the
district must be presented to and acted upon in accordance with Board policy
and administrative regulation. Compliance with district procedures is a
prerequisite to any court action . . . .” The District’s administrative
regulation for board policy 3320 provides, “Claims for money or damages
specifically excepted from Government Code [section] 905 shall be filed no
later than six months after the accrual of the cause of action.”
      In concluding appellants’ suit was barred by their failure to comply
with the District’s claims presentation requirement, the trial court rejected
appellants’ argument that the District’s policy and regulation “ ‘circumvent
the express intention of the legislature’ ” in section 905, subdivision (m), to
exempt victims of childhood sexual abuse from government claims
presentation requirements. The trial court reasoned that the other
subdivisions of section 905 are subject to section 935, and the Legislature did
not indicate that subdivision (m), should be treated differently. The court
also rejected appellants’ argument that section 935 does not authorize the
local regulation because it only applies to claims “not governed by any other
statutes or regulations expressly relating thereto” and claims under section
905, subdivision (m), are “governed by” Code of Civil Procedure section 340.1.
The court followed cases holding that the reference in section 935 to “other
statutes or regulation expressly relating thereto” was to statutes prescribing
procedures for filing a claim against the public entity (Tapia v. County of San
Bernardino (1994) 29 Cal.App.4th 375, 384; California School Employees
Assn. v. Azusa Unified School Dist. (1984) 152 Cal.App.3d 580, 587, fn. 3).




      A 2018 amendment adding an additional subdivision to the statute will
be discussed post.


                                        5
      Appellants’ appeal challenged these determinations. Prior to the
enactment of subdivision (m) of section 905, the California Supreme Court
held in Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 212–214
(Shirk), that despite an amendment to Code of Civil Procedure section 340.1
reviving certain claims of childhood sexual abuse that previously had been
barred due to expiration of the statute of limitations, the plaintiff’s suit was
precluded by her failure to present a timely claim to the entity under the
Government Claims Act. Subdivision (m) was added to section 905 in 2008,
in direct response to Shirk. (Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903,
914 (Rubenstein); A.M. v. Ventura Unified School Dist., supra, 3 Cal.App.5th
at p. 1258; Assem. Comm. on Judiciary, Analysis of Sen. Bill No. 640 (2007-
2008 Reg. Sess.) as amended June 9, 2008 [“This bill is intended to address
the Shirk decision by expressly providing that childhood sexual abuse actions
against public entities are exempted from government tort claims
requirements and the six-month notice requirement.”].) The legislative
history, noting that Code of Civil Procedure section “340.1’s delayed discovery
provisions recognize” that “[f]or many victims, the emotional and
psychological trauma from childhood sexual abuse does not manifest itself
until well into adulthood,” states the intention “to ensure that victims
severely damaged by childhood sexual abuse are able to seek compensation
from those responsible, whether those responsible are private or public
entities.” (Assem. Comm. on Judiciary, Analysis of Sen. Bill No. 640 (2007-
2008 Reg. Sess.) as amended June 9, 2008 [author’s statement].) Appellants
argue that allowing a local ordinance to impose a six-month claims filing
requirement violates the clear legislative intent of section 905, subdivision
(m), to allow victims asserting claims of childhood sexual abuse against




                                        6
governmental entities the same time within which to do so as victims of
private actors.
      Respondent’s brief relies on a series of cases considering the interplay
between sections 905 and 935, culminating in the Fifth District Court of
Appeal’s since-vacated decision in Big Oak Flat-Groveland Unified School
Dist. v. Superior Court (2018) 21 Cal.App.5th 403 (Big Oak Flat). Big Oak
Flat, decided while this appeal was pending, was the first, and to our
knowledge remains the only, case to specifically consider the interplay
between section 935 and subdivision (m) of section 905. It held that section
935 authorized adoption of local claims requirements for claims excepted by
section 905, subdivision (m), rejecting arguments similar to appellants’ in the
trial court and here.
      The California Supreme Court granted review of Big Oak Flat in June
2018 (S247975), and we granted appellants’ unopposed request to stay
briefing on this appeal pending the court’s decision. At the time, only
appellants’ reply brief was outstanding.
      In July 2018, the Legislature adopted Senate Bill No. 1053, which
amended section 935 by adding a new subdivision (f): “Any procedure
authorized to be prescribed by this section does not apply to claims of
childhood sexual abuse made as described in subdivision (m) of Section 905.
This subdivision is declaratory of existing law.”
      On July 17, 2019, the California Supreme Court transferred Big Oak
Flat to the Fifth Appellate District Court of Appeal “with directions to vacate
its decision and reconsider the cause in light of the enactment of Statutes
2018, chapter 1053 (Sen. Bill No. 1053 (2017-2018 Reg. Sess.)). (Cf. Carter v.
California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922–923 & 930;




                                       7
Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244.) (Cal.
Rules of Court, rule 8.528(d).)”
      Appellants’ subsequently filed reply brief on the present appeal argues
that Senate Bill No. 1053 demonstrates the Legislature never intended
section 935 to permit imposition of local claims presentation requirements on
claims of childhood sexual abuse as described in section 905, subdivision (m).
Respondent filed a supplemental brief contesting appellant’s arguments, and
appellant filed a supplemental reply brief.
      Then, on October 13, 2019, Assembly Bill No. 218 (Assembly Bill 218)
was signed into law. Assembly Bill 218 significantly amended Code of Civil
Procedure section 340.1. Among other things, it lengthened the time within
which an action for damages resulting from “childhood sexual assault”3 must
be brought to 22 years from the date the plaintiff attains the age of majority
or five years from 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” (Code Civ. Proc., § 340.1,
subd. (a)); it added a provision for recovery of treble damages from
“a defendant who is found to have covered up the sexual assault of a minor”
(Id., subd. (b)); and it raised to 40 years the age for cut-off of a plaintiff’s
ability to sue third party defendants (Id., subd. (c).)
      Two of the subdivisions added by Assembly Bill 218 are of direct
relevance here. Subdivision (q) provides: “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

      3The amended statute replaces the term childhood sexual “abuse” with
childhood sexual “assault” but maintains the same definition of the included
conduct. (Compare Code Civ. Proc., § 340.1, subdivision (e), as amended,
with section 340.1, subdivision (e), prior to Assem. Bill 218.)


                                          8
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. Subdivision (r) of the
amended section 340.1, Code of Civil Procedure provides: “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.”
      In addition to the changes to Code of Civil Procedure section 340.1,
Assembly Bill 218 amended section 905 by deleting from subdivision (m) the
language that previously limited this exception to the government claim
presentation requirement to claims arising out of conduct occurring on or
after January 1, 2009, and adding subdivision (p), which made this change
retroactive.4
      In a supplemental letter brief filed in November 2019, appellants argue
that Assembly Bill 218 effectively moots the previously presented issues in
this case because even if the action was previously barred by the failure to



      4 Subdivision (p) of section 905 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.”


                                       9
timely file a claim with the District, it is now revived pursuant to Code of
Civil Procedure section 340.1, subdivisions (q) and (r).
      The District responds that Assembly Bill 218 raises serious
constitutional issues in that it “imposes liability and sanctions of a punitive
nature for conduct that was not previously actionable” and thereby “runs
afoul of the constitutional prohibition against ex post facto laws (U.S. Const.
art. I, § 10, cl. 1; Cal. Const., art. I, § 9) and the Due Process Clauses of the
Fifth and Fourteenth Amendments to the United States Constitution and the
California counterpart.”5
      As the District acknowledges, “[t]he constitutional prohibition on ex
post facto laws usually applies to criminal statutes.” (Massachusetts v.
Schering-Plough Corp. (D. Mass. 2011) 779 F.Supp.2d 224, 233 (Schering-
Plough Corp.).) Legislation reviving the statute of limitations on civil law
claims does not violate constitutional principles (Roman Catholic Bishop of
Oakland v. Superior Court (2005) 128 Cal.App.4th 1155, 1161 (Bishop of
Oakland); Liebig v. Superior Court (1989) 209 Cal.App.3d 828, 831–834.) As
the District’s cases illustrate, “a civil statute may violate the Ex Post Facto
Clause if it is ‘ “so punitive either in purpose or effect as to negate [the
State’s] intention’ to deem it “civil.” ’ ” (Schering-Plough Corp., at p. 233,
quoting Kansas v. Hendricks (1997) 521 U.S. 346, 361.) “Only the ‘clearest
proof’ will suffice to override the Legislature’s stated intent and render a
nominally civil statute penal for ex post facto purposes. [Citation.]” (21st
Century Insurance Co. v. Superior Court (2005) 127 Cal.App.4th 1351, 1362,
quoting Smith v. Doe (2003) 538 U.S. 84, 92)

      5The District initially offered the additional argument that it would be
improper for us to base a decision on a law that had not yet taken effect.
That point is no longer relevant due to the passage of time, as Assembly Bill
218 became effective on January 1, 2020.


                                         10
      The District directs our attention to several cases finding that laws
“containing similar provisions” violated the ex post facto clause or refusing to
apply laws retroactively because of ex post facto concerns. (Landgraf v. USI
Film Products (1994) 511 U.S. 244, 281 (Landgraf); Schering-Plough Corp.,
supra, 779 F.Supp.2d at p. 237; Louis Vuitton S.A. v. Spencer Handbags
Corp. (2d Cir. 1985) 165 F.2d 966, 971–972.) Landgraf addressed a section of
the Civil Rights Act of 1991 creating a right to recover compensatory and
punitive damages for intentional discrimination in violation of title VII of the
Civil Rights Act of 1964; previously, only equitable relief had been available
for a title VII violation. In holding the new provision did not apply to a case
pending on appeal at the time of enactment, the court explained there was no
clear evidence of congressional intent to apply it to cases arising before it was
enacted, “[r]etroactive imposition of punitive damages would raise a serious
constitutional question” and even retroactive application of the provision for
compensatory damages would impose a “new disability” on employers.
(Landgraf, at pp. 281, 283–284.) In Schering-Plough Corp., the state sought
to apply a provision of the Massachusetts False Claims Act (MFCA) that
increased penalties and damages (including trebled damages) above the
amount available under prior law in a case involving conduct that preceded
enactment of the statute. Despite an unambiguous statement of legislative
intent that the statute apply retroactively, the court held such application
would violate the ex post facto clause and, therefore, the defendants’ liability
for conduct predating the new law was governed by the law in effect prior to
the MFCA. (Schering-Plough Corp., at pp. 233–238.) In Louis Vuitton, the
plaintiffs in a trademark infringement case asked the trial court to amend its
judgment by applying the damages provision of a new statute, enacted days
before the start of trial, that made mandatory what had previously been a



                                       11
discretionary treble damages award. The court interpreted the provision as
applying only prospectively in order to avoid potential constitutional ex post
facto and due process issues. (Louis Vuitton, at pp. 971–972)
      In each of these cases, the court was asked to apply a statutory
provision increasing the amount of damages available for acts committed
prior to the provisions’ enactment. Here, however, the treble damages
provision added to Code of Civil Procedure section 340.1, subdivision (b), is
not at issue, as appellants did not allege any cover-up that could trigger the
provision. The only question before us on this appeal is whether appellants’
suit is barred by their failure to timely file a claim with the District under its
administrative regulation for board policy 3320. The constitutionality of
retroactive application of the new treble damages provision has no bearing on
whether Assembly Bill 218 successfully revived cases that have “not been
litigated to finality” and “would otherwise be barred as of January 1, 2020,
because the applicable statute of limitations, claim presentation deadline, or
any other time limit had expired.” (Code Civ. Proc., § 340.1, subd. (q).) The
District does not argue that the claim revival provisions of Assembly Bill 218
could be construed as punitive for ex post facto purposes under the seven-
factor analysis courts employ to make this determination. (Kennedy v.
Mendoza-Martinez (1963) 372 U.S. 144, 168–169; Bishop of Oakland, supra,
128 Cal.App.4th at pp. 1162–1163.) Its contention that six of the seven
factors “weigh in favor of a finding of unconstitutionality,” is directed at the
treble damages provision.
      Additionally, an ex post facto argument quite similar to the District’s
was rejected in Bishop of Oakland, supra, 128 Cal.App.4th 1155, which
considered a 2002 amendment to Code of Civil Procedure section 340.1
providing a one-year revival period for claims of liability for failure to take



                                        12
reasonable steps to prevent childhood sexual abuse that had expired under
the prior statute of limitations. In a suit filed during this revival window, the
court held that allowing the plaintiff to seek punitive damages would not
violate the ex post facto clause. The court rejected the defendant’s reliance
upon Landgraf, supra, 511 U.S. 244, for the proposition that punitive
damages are criminal in nature because the Landgraf court’s comments on
this point were dicta, as its ex post facto concerns were discussed in
analyzing whether the Legislature intended the law to operate retroactively,
not whether the law in fact violated the ex post facto clause. (Bishop of
Oakland, at pp. 1163–1164.)
      Furthermore, the Bishop of Oakland court explained, “to the extent ex
post facto concerns were implicated by Landgraf, they are substantially
different from those at issue here. Landgraf did not concern a common law
tort claim. Instead, it concerned the retroactive application of a new
statutory punitive damage remedy to preexisting conduct which occurred at a
time when no such damages were recoverable. This distinction animated the
Landgraf court’s analysis: ‘In cases like this one, in which prior law afforded
no relief, [the new law] can be seen as creating a new cause of action, and its
impact on parties’ rights is especially pronounced.’ ([Landgraf, supra, 511
U.S.] at p. 284.) As a result, the new statute resembled ‘a statute increasing
the amount of damages available under a preestablished cause of action.’ (Id.
at [pp. 284–285].) Neither Landgraf nor the cases it cites concerned or
considered the ability to recover punitive damages as part of a statute
reviving a time-lapsed common law tort cause of action. (See Usery v. Turner
Elkhorn Mining Co. (1976) 428 U.S. 1, [award of benefits under federal Coal
Mining Health and Safety Act]; De Veau v. Braisted (1960) 363 U.S. 144 [New
York State Waterfront Commission Act precluding convicted felons from



                                       13
collecting or receiving union dues]; Louis Vuitton S.A. v. Spencer Handbags
Corp.[, supra,] 765 F.2d 966 [treble civil damages under criminal trademark
counterfeiting law].)
      “At issue here, however, is the revival of a lapsed civil limitations
period in order to restore common law remedies that actually existed at the
time of the alleged misconduct. As noted, numerous federal and California
decisions have held that there is no constitutional impediment to such
legislation. In light of those decisions, and in the absence of any such issues
or discussion in Landgraf, we do not believe Landgraf can be read as having
any applicability here. Instead, as we explain below, we hold that a statute
reviving the limitations period for a common law tort cause of action, thereby
allowing the plaintiff to seek punitive damages, does not implicate the ex post
facto doctrine and therefore does not trigger the intent-effects test at all.”
(Bishop of Oakland, supra, 128 Cal.App.4th at p. 1164, fn. omitted.) The
court then went on to discuss caselaw underlying its conclusion that “[n]o
reported decision of any federal or state court has ever held that punitive
damages awarded pursuant to a common law tort claim might constitute
criminal punishment under the ex post facto clause. Our courts and others
have held just the opposite.” (Id. at p. 1165.)
      Putting aside the issue of punitive damages, as noted in Bishop of
Oakland, supra, 128 Cal.App.4th at pages 1161–1162, an earlier case had
rejected a constitutional challenge to the revival of previously time-barred
causes of action in the original version of Code of Civil Procedure section
340.1. (Liebig v. Superior Court, supra, 209 Cal.App.3d at pp. 830–831.) The
1986 statute “expressly revive[d] time-barred causes of action,” applying the
new three-year period to actions that would have been barred by the
limitations period prior to the January 1, 1987, effective date of the statute as



                                        14
well as to pending actions. (Liebig, at p. 831.) Liebig explained: “[T]he
Legislature has the power to expressly revive time-barred civil common law
causes of action. This holding is consistent with the niche in our civil law
occupied by statutes of limitations. ‘The principle is . . . well established that
“[s]tatutorily imposed limitations on actions are technical defenses which
should be strictly construed to avoid the forfeiture of a plaintiff’s rights. . . .”
[Citation.] [T]here is a “strong public policy that litigation be disposed of on
the merits wherever possible.” ’ (Steketee v. Lintz, Williams & Rothberg
(1985) 38 Cal.3d 46, 56–57, quoting Sevilla v. Stearns-Roger, Inc. (1980) 101
Cal.App.3d 608, 611, and Hocharian v. Superior Court (1981) 28 Cal.3d 714,
724.)” (Liebig, at p. 835.)
      The present case, of course, involves revival of a cause of action barred
by a claim presentation requirement, not a statute of limitations. But we are
aware of no reason the Legislature should be any less able to revive claims in
this context, as it expressly did in Assembly Bill 218: “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.” (§ 340.1, subd. (q), italics added.)
      The express inclusion of “claim presentation deadline[s]” in Assembly
Bill 218 distinguishes it from the 2002 amendment to Code of Civil Procedure
section 340.1, which revived claims “that would otherwise be barred as of
January 1, 2003, solely because the applicable statute of limitations has or
had expired. . . .” (Stats. 2002, ch. 149, § 1.) That revival provision, our
Supreme Court held, did not alter the bar imposed by a plaintiff’s failure to



                                         15
file a claim with the public entity defendant: “ ‘[T]he government Claim
presentation deadline is not a statute of limitations. Had the Legislature
intended to also revive in subdivision (c) the claim presentation deadline
under the government claims statute, it could have easily said so. It did
not.’ ” (Rubenstein, supra, 3 Cal.5th at p. 907, quoting Shirk, supra, 42
Cal.4th at p. 213.) In Assembly Bill 218, the Legislature made clear its
intent to revive causes of action previously barred by government claims
presentation requirements.
      Rubenstein noted that the claim presentation requirement “ ‘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.’ ”
(Rubenstein, supra, 3 Cal.5th at p. 908, quoting Shirk, supra, 42 Cal.4th at
p. 213.)6 In that case, the plaintiff argued that the claim she filed with a

      6  Rubenstein described the “ ‘public policies underlying
the claim presentation requirement of the government claims statute.
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.]’ ” (Rubenstein, supra, 3 Cal.5th at pp. 907–908, quoting
Shirk, supra, 42 Cal.4th at p. 213.) “ ‘ “The claims statutes also ‘enable the
public entity to engage in fiscal planning for potential liabilities and to avoid
similar liabilities in the future.’ ” ’ (DiCampli-Mintz v. County of Santa
Clara (2012) 55 Cal.4th 983, 991; see City of Stockton v. Superior
Court (2007) 42 Cal.4th 730, 738 [similar]; Perez v. Golden Empire Transit

                                       16
public entity defendant in 2012, when she became aware of memories of
sexual abuse by her public school athletic coach 1993–1994, was timely.
Accepting the plaintiff’s argument that her claim accrued when she became
aware of the past abuse, the court said, would contravene the policies
underlying the claim presentation requirement: “A public entity cannot plan
for a fiscal year if it may be subject to an unknown and unknowable number
of ancient claims like this one. It is probably too late today to meaningfully
investigate the facts behind the claim and reach reliable conclusions; even if
some investigation is still possible, a claim timely filed in 1993 or 1994 would
certainly have been easier to investigate and would have allowed for more
reliable conclusions. It is also too late to prevent the alleged abuser from
abusing again.” (Rubenstein, at p. 914.)
      The Rubenstein court observed that in responding to Shirk by adding
subdivision (m) to section 905, the Legislature had “endeavored to take
account of these policy concerns,” creating the exception to the claims
requirement for childhood sexual abuse cases but making it prospective only.
(Rubenstein, supra, 3 Cal.5th at p. 914.) “[T]he amendment shows that the
Legislature has attempted to balance the important objectives underlying the
statutory scheme with practical concerns about permitting the litigation of
old claims against governmental entities.” (Ibid.)
      In Assembly Bill 218, the Legislature has again attempted to balance
the competing concerns of protecting public entities from stale claims and
allowing victims of childhood sexual abuse to seek compensation. This time,
the Legislature came a different conclusion, with an express revival provision
for claims against public entities as well as those against private defendants.


Dist. (2012) 209 Cal.App.4th 1228, 1234, 147 [summarizing these policy
considerations].)” (Rubenstein, at p. 908.)


                                       17
The District attempts to cast doubt upon the constitutionality of retroactive
application of the legislation by pointing to the magnitude of the changes it
makes, not only adding the previously discussed provision for treble damages
in cases of cover-up of childhood sexual abuse but extending the statute of
limitations 14 years longer than under prior law (to 22 years after the age of
majority), reviving claims that have not been litigated to finality for a three-
year period regardless of when the abuse allegedly occurred (“even if the
abuse allegedly occurred 100 years ago”), and eliminating the protection
section 905, subdivision (m), previously provided for claims arising from
conduct that occurred prior to 2009. None of these changes are implicated in
the present case. As we have said, there are no allegations to trigger the
treble damages provision. Appellants’ suit was filed when E.D. was 19 years
old, well within the prior statute of limitations (eight years from age of
majority). The alleged abuse last occurred only a year and a half prior to the
filing of the complaint, far from the “100 years ago” invoked by the District in
characterizing the amendment. And the case involves alleged abuse in 2014
and 2015, not prior to 2009. The District offers no reason for finding the
claim revival provisions of Assembly Bill 218 unconstitutional.
      In light of the express revival provision in subdivision (q) of Code of
Civil Procedure section 340.1, it is not necessary for us to determine the
merits of appellants’ argument that the trial court erred in finding the
District’s claim presentation requirement was valid under section 935 despite
the exception for childhood sexual abuse claims stated in section 905,
subdivision (m), either due to the legislative intent reflected in section 905,
subdivision (m), itself or as clarified by Senate Bill No. 1053’s addition of the
exception to section 935 for claims of childhood sexual abuse. It is apparent
from the history of amendments to these statutes, however, that the



                                        18
Legislature has consistently worked to expand the ability of victims of
childhood sexual abuse to seek compensation from the responsible parties,




                                      19
on several occasions in direct response to restrictive judicial opinions.7 In
the face of a revival provision expressly and unequivocally encompassing


      7 In addition to the statutory amendments we have described, Code of
Civil Procedure section 340.1 had previously been amended several times. As
enacted in 1986, section 340.1 extended the statute of limitations for a claim
of sexual molestation of a child to three years from the age of majority;
previously, the statute of limitations for such a claim would have been one
year from the age of majority. (Liebig v. Superior Court, supra, 209
Cal.App.3d at pp. 830–831.) The statute “expressly revive[d] time-barred
causes of action,” applying the new three-year period to actions that would
have been barred by the prior limitations period, as well as to pending
actions. (Id. at p. 831.)
       In 1990, the Legislature extended the statute of limitations for claims
of childhood sexual abuse to eight years from the date of the plaintiff’s
majority or three years from the date of discovery that “psychological injury
or illness occurring after the age of majority was caused by the sexual abuse.”
(Stats. 1990, ch. 1578, § 1.) The legislation stated, “The amendments to this
section enacted at the 1990 portion of the 1989–90 Regular Session shall
apply to any action commenced on or after January 1, 1991.” (Id., § 1, subd.
(k).) In 1994, responding to a court decision holding the 1990 amendment did
not indicate legislative intent to revive causes of action which had lapsed
under prior law (David A. v. Superior Court (1993) 20 Cal.App.4th 281, 286;
Quarry v. Doe I (2012) 53 Cal.4th 945, 964), the Legislature added
subdivisions (o) and (p), expressly reviving such causes of action in cases
commenced on or after January 1, 1991.
       Amendments in 1998 distinguished between actions against a person
for committing an act of childhood sexual abuse and actions to impose
liability on third parties whose conduct was a legal cause of the abuse, with
the latter required to be commenced by the plaintiff’s 26th birthday. (Stats.
1998, ch. 1032, § 1, subds. (a), (b).) An amendment a year later stated that
the 1998 amendments applied to actions commenced on or after January 1,
1999, and previously filed actions still pending on that date, “including any
action or causes of action which would have been barred by the laws in effect
prior to January 1, 1999,” but did not revive causes of action that had been
finally adjudicated prior to January 1, 1999.” (Stats. 1999, ch. 120, § 1,
subd. (s).)
      Amendments in 2002 extended the time for commencing third-party
actions beyond the plaintiff’s 26th birthday in specified circumstances and

                                      20
claims of childhood sexual abuse previously barred for failure to present a
timely government claim, it is clear we must reverse the trial court’s
judgment and remand for further proceedings on appellants’ complaint.
                                        II.
      The above analysis would apply equally to Coats’s claims of emotional
distress if, as appellants maintain, these claims were also subject to the
exception of section 905, subdivision (m). The exception, as we have said,
applies to “[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.” Appellants argue Coats’s claims come within the exception because
she suffered emotional distress “as a result of” the “childhood sexual assault”
of her foster daughter. The District argues section 905, subdivision (m), is
inapplicable because Coats was not a victim of childhood sexual assault.
      The trial court, without further explanation, held subdivision (m) of
section 905 did not apply to Coats because she was “not making a ‘[c]laim . . .
pursuant to Section 340.1 . . . for the recovery of damages suffered as a result
of childhood sexual abuse.’ ”
      In appellants’ view, since the purpose of Code of Civil Procedure section
340.1 is to allow a victim of childhood sexual abuse sufficient time to
recognize and reveal his or her injury, it would make no sense to subject a
parent’s claims arising from the child’s abuse to a six-month government
claims presentation requirement. Appellants cite A.M. v. Ventura Unified
School Dist., supra, 3 Cal.App.5th at page 1256, as “noting that despite its
plain language, claims under section 340.1 could be asserted by a guardian



expressly revived such claims “that would otherwise be barred as of January
1, 2003, solely because the applicable statute of limitations has or had
expired” for a period of one year. (Stats. 2002, ch. 149, § 1, subds. (b)(2), (c).)


                                         21
ad litem for the child.” In that case, a mother, as guardian ad litem for her
minor daughter, sued the school district and others for alleged negligence in
allowing male students to sexually abuse the daughter at school. The trial
court granted summary judgment for the defendants because no government
tort claim had been filed with the District. A.M. reversed, finding the
daughter’s claims exempt from the claim filing requirement under section
905, subdivision (m). The case is not helpful to appellants with respect to
Coats’s causes of action, however, because the only claim in A.M. brought by
the mother on her own behalf (negligent infliction of emotional distress) was
voluntarily dismissed prior to the trial court’s summary judgment.
      Appellants’ contention that Government Code section 905, subdivision
(m), applies to Coats’s emotional distress claims turns on whether they are
claims “made pursuant to Section 340.1 of the Code of Civil Procedure for the
recovery of damages suffered as a result of childhood sexual assault.” The
plain language of Code of Civil Procedure section 340.1 demonstrates it is
aimed at direct victims of sexual assault. Subdivision (a) of the statute
begins, “In an action for recovery of damages suffered as a result of childhood
sexual assault, the time for commencement of the action shall be 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 . . . .” (Code Civ. Proc., § 340.1, subd. (a), italics added.)
Subdivision (d) defines childhood sexual assault by reference to specified acts
“committed against the plaintiff that occurred when the plaintiff was under
the age of 18 years.” (Id., subd. (d), italics added.) A plaintiff 40 years of age
or older at the time the action is filed must file a certificate of merit by a
mental health practitioner providing a “professional opinion there is a



                                         22
reasonable basis to believe that the plaintiff had been a subject to childhood
sexual abuse.” (Id., subds. (f), (g)(2), italics added.) Clearly, the statute
prescribes the time within which a plaintiff who was the subject of sexual
assault as a minor may bring an action for damages against the perpetrator
or parties whose conduct was a legal cause of the sexual assault. The statute
does not expressly address actions for damages suffered by third parties “as a
result” of a child’s sexual assault.
      Subdivision (m) of Government Code section 905 tracks the language of
Code of Civil Procedure section 340.1: The exception is for claims “made
pursuant to Section 340.1 of the Code of Civil Procedure for the recovery of
damages suffered as a result of childhood sexual assault.” (Italics added.)
Since the exception to the claims presentation requirement is for claims
“made pursuant to Section 340.1 of the Code of Civil Procedure,” which
governs actions “for recovery of damages suffered as a result of childhood
sexual assault” by the victim of the assault, it seems apparent that the “as a
result of childhood sexual assault” language in section 905, subdivision (m),
refers to damages suffered by the victim, not causes of action alleging indirect
injury suffered by a third person due to a child having been sexually
assaulted. We are not aware of anything in the legislative history of section
905, subdivision (m), or Assembly Bill 218 suggesting the Legislature
intended the childhood sexual abuse exception to the government claims
presentation requirement to apply to causes of action asserted by a party
other than the victim of the childhood sexual abuse.
      Appellants make a reasonable argument that it would be incongruous
to require a parent’s action for emotional distress resulting from childhood
sexual abuse of his or her child to be filed within six months of the abuse
when the law recognizes that the child may not reveal and/or become aware



                                        23
of the significance of such abuse until years later. But this argument
assumes the Legislature intended parents or other third parties to be able to
recover damages from public entities for the emotional distress they suffer
upon learning the victim was sexually abused. The incongruity would exist
only to the extent appellants’ assumption is warranted.
      Appellants point to Phyllis P. v. Superior Court (1986) 183 Cal.App.3d
1193 (Phyllis P.), which permitted a mother to assert claims for emotional
distress against school authorities arising out of the sexual assault and rape
of her young daughter by another student. The child had reported incidents
of molestation to her teacher, but the teacher and school counselor decided
not to tell the mother about the molestation or counseling that was provided
to the child; the principal warned the offending student his parents would be
notified if he did not stop “bothering” the child but also did not notify the
victim’s mother. (Id. at p. 1195.) Ultimately, the child was raped. The
mother claimed she could have taken precautionary measures if she had been
informed of the earlier assaults and suffered severe emotional distress as a
result of the defendants’ failure to notify her, due to the rape and her
observation of her daughter’s physical and psychological deterioration. (Ibid.)
The court concluded the school defendants had a special relationship with
and duty of care to the mother in these circumstances, failed to properly
supervise the perpetrator or protect the child, and withheld information
about the earlier assaults from the mother, preventing her from taking
precautions, amounting to a cover-up the defendants should have foreseen
would cause the mother more emotional distress than informing her of the
molestation in the first place. (Id. at pp. 1196–1197.)8

      8Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th
904 (Steven F.) noted that Phyllis P. was decided on a foreseeability theory
subsequently repudiated in Burgess v. Superior Court (1992) 2 Cal.4th 1064,

                                        24
      On the other hand, Steven F., supra, 112 Cal.App.4th 904, reversed a
jury verdict in favor of parents on their cause of action for emotional distress
upon learning their daughter had engaged in a sexual relationship with one
of her high school teachers. The daughter had tried to hide the relationship
from her parents, begged them not to go to the police when they found out,
and became suicidal after the teacher was arrested. (Id. at p. 906.) There
was no evidence the school defendants knew of the sexual relationship or of
any prior tendency on the part of the teacher to have sex with students.
(Id. at pp. 907, 909.) Steven F. distinguished Phyllis P. factually, as the
school authorities in that case were aware of the propensity and danger posed
by the perpetrator and intentionally chose to keep information from the
mother, thereby “preempt[ing]” or “usurp[ing]” the “parental prerogative to
take measures to protect the child.” (Steven F., at pp. 914–915.) The Steven
F. court considered several theories of recovery discussed in cases involving
third party emotional distress claims and concluded none supported recovery
on the facts of that case. (Id. at pp. 911–919.)
      For present purposes, it is not necessary for us to determine where the
present case would fall as a factual matter.9 These cases illustrate that
parents have not been seen by the courts as necessarily entitled to recover for
emotional distress when their children have a direct claim of sexual abuse.


1074, but viewed the decision as supported by cases allowing recovery for
negligent infliction of emotional distress by third party relatives where the
relative is a “direct victim” in that the negligence was “directed at” the
relative or there was “outrageous conduct on the part of the defendant.”
(Steven F., at pp. 912–913.)
      9 Given its ruling that Coats’s claims were barred by her failure to file a
timely claim with the District, the trial court did not consider whether she
sufficiently alleged a special relationship with the District to support her
causes of action for emotional distress.


                                       25
Absent discernable legislative intent, we cannot conclude the Legislature
intended to provide relatives the same rights as direct victims in the context
of childhood sexual abuse cases under Code of Civil Procedure section 340.1.
Given the policy underpinnings of the Government Claims Act, it would
require an even greater stretch to conclude the Legislature intended the
section 905, subdivision (m), exception to the claims presentation
requirement to apply to relatives’ claims.
      Accordingly, we agree with the trial court that Coats’s causes of action
are barred by her failure to file a timely claim with the District.
                                DISPOSITION
      The judgment is affirmed as to Coats. As to E.D., the judgment is
reversed and the matter remanded for further proceedings consistent with
this opinion.




                                       26
                                           _________________________
                                           Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Stewart, J.




E.D. Coats et al. v. New Haven Unified School District et al. (A150490)




                                      27
Trial Court:                 Alameda County Superior Court

Trial Judge:                 Hon. Robert B. Freedman


Attorneys for Appellants:    Taylor & Ring
                             John C. Taylor
                             Natalie Weatherford

                             Esner, Chang & Boyer
                             Holly N. Boyer
                             Joseph S. Persoff

                             Haysbert Moultrie
                             Nazareth M. Haysbert

Attorneys for Respondents:   Leone & Alberts
                             Louis A. Leone
                             Katherine Alberts
                             Marina B. Pitts
                             Seth L. Gordon




                              28
