In K.M. v. Grossmont Union High School District, published October 25, 2022, the Fourth District Court of Appeal, Division 1 affirmed a judgment after jury trial. The plaintiffs alleged their high school drama teacher sexually abused them. The causes of action included one against the defendant district under Civil Code section 51.9. The trial court sustained the district’s demurrer to this cause of action without leave to amend. The case proceeded to trial against the district on negligence claims. The jury awarded damages, and apportioned fault 60% to the teacher and 40% to the district. The plaintiff appealed the ruling on section 51.9. While the appeal was pending, Code of Civil Procedure section 340.1 was amended to add a provision for treble damages against parties that covered up childhood sexual abuse. On appeal, the plaintiff contended that under this provision it was entitled to treble damages against the district.
The appellate court concluded that Code of Civil Procedure section 340.1’s treble damages provision is neither retroactive nor applicable to public school districts. In addition to the treble damages provision, the amendment to section 340.1 in Assembly Bill 218 extended the statute of limitations for childhood sexual abuse and provided a three-year revival period. The plaintiffs contended that all of AB 218’s provisions, including the new treble damages provision, apply retroactively. The language of the treble damages provision is silent as to retroactivity, and applying the tests for when statutes are to be interpreted as retroactive, as well as review of the legislative history, supports the conclusion that the provision applies only prospectively. The court also agreed with two prior appellate decisions (both currently under review by the California Supreme Court) that the treble damages provision is a punitive damages provision that is barred by Government Code section 818, which immunizes public entities from punitive damages. The court analyzed the treble damages provision and concluded that the damages are punitive rather than compensatory. The appellate court further upheld the trial court’s ruling that Civil Code section 51.9, together with Civil Code section 52, do not create a statutory cause of action against public entities. Civil Code section 51.9 renders providers of business services liable for sexual harassment of customers. The court applied the tests for statutes that create causes of action against public entities, and concluded that a public entity is not a “person” under section 51.9. Although the statute mentions “teacher” as a type of business relationship to which the statute applies, both public and private entities can employ teachers. Further, applying section 51.9 to school districts would affect their ability to function by diverting funds needed for education. Section 52, which provides remedies for violation of section 51.9, does not create a stand-alone cause of action. Finally, Government Code sections 815.2 and 820, which impose vicarious liability upon public entities for their employees’ violation of duties, do not support imposing section 51.9 or 52 liability upon school districts.
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