California Court of Appeals, Second District, Sixth Division
modified Oct. 19, 2016.]
Court County of Ventura Super. Ct. No. 56-2013-
00445601-CU-PO-VTA Henry J. Walsh, Judge
[Copyrighted Material Omitted]
Offices of Robert S. Gerstein, Robert S. Gerstein; Law
Offices of Robert H. Tourtelot and Robert H. Tourtelot for
Plaintiff and Appellant.
Houska, Carol A. Woo and Maureen M. Houska for Defendants and
as guardian ad litem for her minor daughter, A.M.
(appellant), sued the Ventura Unified School District
(District), Michael Tapia, and Gwen Fields (collectively
respondents) for negligence. Appellant alleged, among other
things, that respondents negligently allowed male students to
sexually abuse her while at school. The trial court granted
summary judgment for respondents, concluding that appellant
failed to file the required government tort claim with the
concedes she did not file a tort claim, but asserts she was
excused from doing so pursuant to Government Code section
905, subdivision (m), which exempts “[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.” Section 340.1, subdivisions (a)(2) and
(b)(1) set forth the limitations period for bringing actions
“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." (§340.1, subd. (a)(2).) Such actions
must be commenced before the victim's 26th birthday.
(§ 340.1, subd. (b)(1).) Appellant's is such an
section 340.1 provides the limitations period for
appellant's claims of childhood sexual abuse, appellant
was exempt from filing a tort claim under Government Code
section 905, subdivision (m). As we shall explain, the trial
court erred by concluding the exemption applies only if the
alleged childhood sexual abuse was committed by an employee,
volunteer, representative or agent of the public entity. We
reverse and remand for further proceedings.
AND PROCEDURAL BACKGROUND
was a second grade student at an elementary school in
Ventura. Between September 2012 and April 2013, appellant
allegedly was bullied, battered and sexually abused by some
of her fellow students. A.R., a male student, hit and kicked
her, touched her private parts, pinched her buttocks, hugged
her and pressed himself against her. Another student exposed
himself to appellant and rubbed his private parts on her. On
one occasion, appellant was knocked unconscious.
reported the abuse to various District employees, including
appellant's teacher (Fields) and the school's
principal (Tapia). When D.G. attempted to see the
superintendant, she was referred to another District
employee, who referred her back to Tapia. According to D.G.,
the District did nothing to stop the attacks on appellant.
Fields told D.G. that “[she needs] to fix things on
[her] own, ” and Tapia suggested that she move
appellant to another school.
result of the bullying and attacks, appellant was afraid to
go to school or to play outside with her friends. In April
2013, D.G. began homeschooling appellant.
2013, appellant presented a tort claim to the County of
Ventura, which is a separate entity from the District. The
County of Ventura sent a notice of rejection. No claim was
presented to the District.
and D.G. filed a complaint for damages against respondents
for (1) negligent supervision of students; (2) negligent
supervision of school
premises; (3) violation of article I, section 28, subdivision
(c) of the California Constitution, Government Code section
44807, Education Code section 8202 and
California Code of Regulations, title 5, section 5552; (4)
sexual harassment; (5) negligent infliction of emotional
distress as to appellant; and (6) negligent infliction of
emotional distress as to D.G. Only the sixth cause of action
was brought by D.G. on her own behalf. After respondents
demurred to most of the causes of action, appellant and D.G.
voluntarily dismissed the common law claims, leaving only
appellant's claims for negligent supervision of students,
negligent supervision of school premises and violation of
constitutional and statutory rights. The trial court
overruled the demurrer as to those three claims.
moved for summary judgment on the ground that the remaining
three causes of action are barred due to appellant's
failure to comply with the claims presentation requirement
set forth in Government Code section 911.2. Appellant did not
dispute the facts raised in respondents' motion. She
argued that because her claim was made pursuant to section
340.1 for “childhood ...