Doe v. Marysville Joint Unified School Dist. CA3

Filed 3/2/23 Doe v. Marysville Joint Unified School Dist. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----

M.D. DOE et al., C095253

Plaintiffs and Appellants, (Super. Ct. No.
CVCV20-00738)
v.

MARYSVILLE JOINT UNIFIED SCHOOL
DISTRICT,

Defendant and Respondent.

In 2002, plaintiffs M.D. Doe, A.J. Doe, and S. Doe (together, plaintiffs) sued
defendant Marysville Joint Unified School District (the District) and at least one District
employee, alleging their school counselor sexually abused them. The trial court entered
judgment in favor of the District after finding that plaintiffs failed to timely file a
government claim before filing their complaint. We affirmed the judgment on appeal
(Doe v. Marysville Joint Unified School District (Nov. 9, 2005, C047771) [nonpub.
opn.]), and the Supreme Court denied review.

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 In 2019, the Legislature passed Assembly Bill No. 218 (2019-2020 Reg. Sess.)
(Assembly Bill 218), which amended Code of Civil Procedure section 340.11 to extend
the statute of limitations for victims bringing childhood claims of sexual assault. (Stats
2019, ch. 861, § 1.) Thereafter, plaintiffs filed this action against the District and certain
individuals predicated on the same set of facts as their 2002 suit. The trial court
sustained the District’s demurrer without leave to amend as to plaintiffs, finding that the
prior dismissal was res judicata, and that allowing section 340.1 to reopen a final
judgment would run afoul of constitutional separation of powers principles.
Plaintiffs appeal, arguing the trial court erred because their prior claims were not
“litigated to finality” within the meaning of section 340.1 and may therefore be revived,
and because dismissing plaintiffs’ claims violates equal protection. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs allege that their school counselor, William Wayne Babcock (Babcock),
sexually abused them for several years while they were students at an elementary school
in the District.2 Between June and August 2002, plaintiffs filed claims under the
Government Claims Act. (Gov. Code, § 810 et seq.) Plaintiffs then filed suit against the
District and employee June Chiechi (Chiechi), alleging Babcock abused them between
1998 and 2002, and that the District and Chiechi breached various duties to plaintiffs and
their parents related to Babcock’s abuse. The trial court granted the District’s and
Chiechi’s motions for summary judgment, finding that plaintiffs’ causes of action
accrued more than a year before they filed their government claims, and thus their causes
of action were untimely. Plaintiffs appealed, and this court affirmed the trial court’s

1 Undesignated statutory references are to the Code of Civil Procedure.
2 Babcock is currently serving a sentence of 22 years in prison for his crimes.

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ruling. The Supreme Court denied plaintiffs’ petition for review and issued a remittitur
in March 2006.
On January 1, 2020, Assembly Bill 218 took effect, extending the statute of
limitations for victims bringing childhood sexual assault claims that had not been
“litigated to finality.” (§ 340.1, subd. (q).) In response to this statutory amendment, on
October 8, 2020, plaintiffs, along with another alleged victim (J. Doe), filed this action
against the District, Babcock, and Chiechi. Their complaint effectively alleged the same
claims against the District as were alleged in the 2002 suit.
The District demurred to all 17 causes of action in the complaint on various
grounds. The trial court sustained the demurrer without leave to amend as to plaintiffs on
two grounds: (1) the prior action was res judicata; and (2) case authority which held that
permitting the Legislature to reopen final judgments would violate separation of power
principles, Perez v. Roe 1 (2006) 146 Cal.App.4th 171 (Perez) and Plaut v. Spendthrift
Farm (1995) 514 U.S. 211 [131 L.Ed.2d 328] (Plaut). The trial court entered a judgment
of dismissal as to plaintiffs, and plaintiffs filed this appeal.
DISCUSSION
Plaintiffs argue that because their first action was dismissed as untimely under the
Government Claims Act, it was not litigated to finality on the merits, and thus section
340.1 permits them to bring their claims anew. They assert that the Legislature has long
been permitted to extend retroactively the statute of limitations for civil claims, thereby
reviving them, and may do so here without violating the Constitution. With respect to res
judicata, they contend that terminating an action on statute of limitations grounds does
not have a res judicata effect because it is not a determination on the merits. Finally,

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plaintiffs argue that reading section 340.1 to prohibit them from reopening their judgment
in the 2002 case violates equal protection. We find plaintiffs’ arguments unpersuasive.3
A. Section 340.1
Enacted in 1986, “[s]ection 340.1 governs the period within which a plaintiff must
bring a tort claim based upon childhood sexual abuse.” (Quarry v. Doe I (2012) 53
Cal.4th 945, 952.) The Legislature has since repeatedly amended the section to further
expand the statute of limitations and decrease other barriers to victims seeking to bring
their claims of abuse. (Ibid.) Effective January 1, 2020, Assembly Bill 218 again
extended the statute of limitations to permit an “action for recovery of damages suffered
as a result of childhood sexual assault” to be brought by age 40 or within five years of
when the plaintiff discovered (or reasonably should have discovered) the resulting
psychological injury or illness. (§ 340.1, subds. (a), (c).) As relevant here, the amended
statute also provides for a three-year revival period for all claims for damages brought

3 Plaintiffs’ counsel is admonished for failing to include a single record citation in
plaintiffs’ briefs in violation of California Rules of Court, rule 8.204(a)(1)(C). “It is the
duty of counsel to refer us to the portion of the record supporting [plaintiffs’] contentions
on appeal. [Citations.] . . . ‘It is neither practical nor appropriate for us to comb the
record on [plaintiffs’] behalf.’ ” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th
728, 738.)

Plaintiffs’ briefs are deficient in other respects. For example, the opening brief’s
section discussing the standard of review contains no citations to legal authority. (Cal.
Rules of Court, rule 8.204(a)(1)(B).) It similarly contains no proper case citation
regarding its discussion of the rules of statutory interpretation. The reply brief also
contains an improper discussion of the status of the evidence in this case, referencing
facts that are neither alleged in the complaint nor otherwise contained in the record.

Despite plaintiffs’ disregard of the rules of appellate procedure, we will exercise
our discretion to consider the merits of plaintiffs’ appeal. We do so because the District
has substantively responded to plaintiffs’ arguments, and because the principal issue
presented on appeal is a legal question that does not require an intensive review of the
record.

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under subdivision (a) that had “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.” (§ 340.1, subd. (q).)
Subdivision (r), which also addresses claim revival, states: “The changes made to
the time period under subdivision (a) as amended by [Assembly Bill 218] apply to and
revive any action commenced on or after the date of enactment of [Assembly Bill 218],
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.” (§ 340.1, subd. (r).)
B. Statutory analysis
As the trial court’s ruling on demurrer presents a question of statutory
interpretation, we review the matter de novo. (California Apartment Assn. v. City of
Fremont (2002) 97 Cal.App.4th 693, 699.) In doing so, we conclude that the plain
language of section 340.1, subdivisions (q) and (r), particularly in view of Assembly Bill
218’s amendments to the statute’s revival language, does not support plaintiffs’
interpretation.
When construing statutes, our purpose is to discern the Legislature’s intent so that
we best effectuate the purpose of the law. (People v. Albillar (2010) 51 Cal.4th 47, 54-
55.) “When interpreting statutes, we begin with the plain, commonsense meaning of the
language used by the Legislature. [Citation.] If the language is unambiguous, the plain
meaning controls. [Citation.]” (Voices of the Wetlands v. State Water Resources Control
Bd. (2011) 52 Cal.4th 499, 519.) If the language of the statute is ambiguous, a court “can
look to legislative history [citation] and to rules or maxims of construction” to resolve the
ambiguity. (People v. Smith (2004) 32 Cal.4th 792, 798.)
We turn first to the plain language of the statute. As set forth above, section
340.1, subdivision (q) provides that it only revives a claim for damages “that has not been
litigated to finality.” (Italics added.) Similarly, subdivision (r) states that the statute

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revives any action that has commenced but is “still pending on [the date of enactment].”
(Italics added.) Thus, the statute only revives claims that have not already reached final
adjudication. Here, there is no dispute that plaintiffs’ claims were litigated to finality
long ago; they were adjudicated by the trial court on summary judgment, which we
affirmed on appeal, and finally, the Supreme Court denied review. (See Perez, supra,
146 Cal.App.4th at p. 188.) According to the unambiguous statutory language, plaintiffs’
claims therefore cannot be revived. (See Safechuck v. MJJ Productions, Inc. (2020) 43
Cal.App.5th 1094, 1100 [“The import of section 340.1, subdivisions (q) and (r) is clear:
the Legislature intended to preserve and revive all nonfinal claims”].)
Nonetheless, plaintiffs urge us to read the phrase “not been litigated to finality” to
include the phrase “on the merits.” And because a disposition based upon a limitations
period violation is not a determination on the merits, plaintiffs contend that their claims—
which were summarily adjudicated as untimely under the Government Claims Act—are
not barred from revival. As support for reading this language into subdivision (q),
plaintiffs repeatedly cite to a purported quote from the report of the Senate Judiciary
Committee discussing Assembly Bill 218: “ ‘Termination of a prior action on the basis
of the statute of limitations Plaintiffs not constitute a claim that has been litigated to
finality on the merits.’ ”
Although this text is not found in the legislative history, we presume that plaintiffs
are referring to the following statement in the Senate Judiciary Committee’s analysis:
“Termination of a prior action on the basis of the statute of limitations does not constitute
a claim that has been litigated to finality on the merits.” (Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 218 (2019-2020 Reg. Sess.) July 2, 2019, p. 2.) This citation
does not help plaintiffs. In fact, this quote is a description of the prior version of section
340.1, which is laid out before the discussion of Assembly Bill 218’s amendments.
Before the enactment of Assembly Bill 218, section 340.1 contained the language
that plaintiffs ask us to read back into the statute. The prior version stated that the revival

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provision of section 340.1 does not apply to “[a]ny claim that has been litigated to finality
on the merits in any court of competent jurisdiction prior to January 1, 2003.
Termination of a prior action on the basis of the statute of limitations does not constitute
a claim that has been litigated to finality on the merits.” (§ 340.1, former subd. (d)(1),
italics added; Stats. 2018, ch. 423, § 8.) However, the Legislature had good reason to
remove the language allowing revival of claims litigated to finality “on the merits”:
reopening a case litigated to finality would be unconstitutional.
This issue was squarely addressed in Perez, supra, 146 Cal.App.4th 171. There,
the Second District Court of Appeal, Division Eight, considered whether prior section
340.1’s language allowing revival of claims litigated to finality on statute of limitations
grounds was an unconstitutional attempt by the Legislature to unravel a final judgment.
In finding that it was, the Perez court explained: “Once the judgments against appellants
in the previous action were upheld on appeal—for [the first appellant] when the
California Supreme Court denied her petition for review, and for [the second appellant]
when his appeal was dismissed—they became final for separation of powers purposes
and could not be legislatively revived. Because the power to conclusively resolve cases
by rendering dispositive judgments rests with the judiciary alone [citation], the
Legislature may not reverse final judgments such as those that were rendered under the
previous limitations period of section 340.1.” (Perez, at p. 188.) Accordingly, Perez
held that “the Legislature violated the separation of powers doctrine when it amended
section 340.1 to revive childhood sex abuse actions where a final judgment had been
entered under the statute of limitations that previously existed.” (Perez, at p. 188; Cal.
Const., art. III, § 3.)
Perez is rooted in both federal and state constitutional principles. It relied on the
United States Supreme Court’s decision in Plaut, supra, 514 U.S. 211, which held that
retroactive legislation purporting to apply to a case already finally adjudicated,
impermissibly reverses a determination already made in a particular case. (Plaut, at p.

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225.) The high court reasoned that such legislation is a “clear violation of the separation-
of-powers principle” because, once a judgment becomes final, “Congress may not declare
by retroactive legislation that the law applicable to that very case was something other
than what the courts said it was.” (Id. at pp. 225, 227, original italics.)
Perez also based its holding on two California Supreme Court cases, People v.
Bunn (2002) 27 Cal.4th 1, and its companion case, People v. King (2002) 27 Cal.4th 29.
Deriving their analyses from Plaut, both Bunn and King held that “if a criminal complaint
is dismissed because the statute of limitations has run, and the Legislature later
retroactively expands the statute of limitations before that ruling becomes final, then the
new limitations period will apply. If the Legislature changes the limitations period after
the time for appeal has expired or the ruling has completed its journey through the entire
appellate process, however, the Legislature’s attempt to revive the criminal action
violates the separation of powers doctrine.” (Perez, supra, 146 Cal.App.4th at p. 177
[summarizing the holdings in Bunn and King].)
Perez found the rule announced in Bunn and King applicable in the civil context
for the same reasons it applied in criminal actions: allowing the Legislature to undo the
finality of judgments violates the separation of powers doctrine. (Perez, supra, 146
Cal.App.4th at p. 183.) Several years after Perez was issued, the Legislature deleted the
problematic language from the statute. Thus, Assembly Bill 218’s amendments actually
negate plaintiffs’ interpretation, as the Legislature expressly removed language permitting
plaintiffs to reopen cases disposed of on nonmerit-based grounds. This clearly indicates
the Legislature’s intent that all claims litigated to finality, regardless of the basis for their
adjudication, may not be revived under section 340.1.
Further, a statute should not be construed to violate the Constitution “ ‘ “if any
other possible construction remains available.” ’ ” (People v. Trujeque (2015) 61 Cal.4th
227, 256; accord, Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades
Council (1988) 485 U.S. 568, 575 [99 L.Ed.2d 645, 654] [“where an otherwise

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acceptable construction of a statute would raise serious constitutional problems, the Court
will construe the statute to avoid such problems unless such construction is plainly
contrary to the intent of Congress”].) Reading the statute to permit revival of any fully
adjudicated claims, even those not decided on the merits, would give rise to the same
constitutional problem that the amended statute resolved.
Additionally, we note that plaintiffs’ argument rests on the premise that their
action was dismissed as untimely under the applicable statute of limitations, but this is
inaccurate. Rather, the courts found plaintiffs failed to timely file, under Government
Code section 911.2, a government claim, which barred their action. In many respects, the
government claims presentation deadline is distinct from a statute of limitations. Indeed,
our Supreme Court previously found the two concepts distinguishable in the context of
former section 340.1. Specifically, it held that section 340.1’s prior language reviving
claims that would otherwise be barred “solely because the applicable statute of
limitations” had expired (§ 340.1, former subd. (c); Stats. 2018, ch. 423, § 8), did not
revive the deadline for presenting a government claim to a public entity. (Shirk v. Vista
Unified School Dist. (2007) 42 Cal.4th 201, 219-220, superseded by statute as stated in
Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 914.) In doing so, it explained that “the
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.)4

4 In response to Shirk, “Assembly Bill 218 also amended Government Code section
905, which imposes claim presentation requirements for local public entities, to
retroactively expand the exemption for section 340.1 to all such claims. (Gov. Code,
former § 905, subd. (m) [exemption for [] § 340.1 claims ‘arising out of conduct
occurring on or after January 1, 2009’]; Assem. Bill 218, § 1 [amending Gov. Code, §
905, subd. (m) to eliminate ‘on or after January 1, 2009,’ and add subd. (p)]; Gov. Code,
§ 905, subd. (p) [‘The changes made to this section by the act that added this subdivision

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Accordingly, plaintiffs cannot casually substitute one concept for the other without even
acknowledging the distinction.
Nonetheless, regardless of why plaintiffs’ claims were dismissed—whether for
failing to comply with statute of limitations or the government claims presentation
deadline—plaintiffs’ claims were litigated to finality. Thus, pursuant to section 340.1,
subdivisions (q) and (r), plaintiffs’ claims cannot be revived.
Plaintiffs do not grapple with the separation of powers concerns raised by their
interpretation. Instead, they argue that their prior action does not have a res judicata
effect because it was disposed of on statute of limitations grounds, and that permitting
plaintiffs to reopen their case retroactively does not violate the ex post facto clause of the
constitution or due process. These arguments miss the point. Even if we accepted them
as true, they would not resolve the separation of powers violation that would arise if the
statute allowed them to revive their case.5
Plaintiffs also cite to Mid-Century Ins. Co. v. Superior Court (2006) 138
Cal.App.4th 769, which held that a statute reviving claims against earthquake insurers,
except those claims “litigated to finality,” revived claims dismissed under the prior
statute of limitations. (Id. at p. 776, fn. 1.) However, Mid-Century did not address the
separation of powers concerns raised by this interpretation; it appears that neither party

are retroactive’].)” (K.M. v. Grossmont Union High School Dist. (2022) 84 Cal.App.5th
717, 736.)
5 Indeed, plaintiffs are correct that termination of an action on statute of limitations
grounds is not a determination on the merits and thus does not have res judicata effect.
(Koch v. Rodlin Enterprises (1990) 223 Cal.App.3d 1591, 1595-1596.) However,
plaintiffs’ 2002 case was not dismissed on statute of limitations grounds, and plaintiffs do
not address whether dismissal of an action for failure to timely file a government claim is
res judicata on any future action. Nonetheless, even if the trial court may have erred in
sustaining the demurrer on res judicata grounds, “ ‘we review the ruling, not the court’s
reasoning and, if the ruling was correct on any ground, we affirm.’ ” (People v. Zamudio
(2008) 43 Cal.4th 327, 351, fn. 11.)

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raised the constitutional issue and the appellate court simply did not consider it. Thus,
Mid-Century is not relevant to our analysis here. (People v. Ault (2004) 33 Cal.4th 1250,
1268, fn. 10 [“It is axiomatic that cases are not authority for propositions not
considered”].)
Based on the foregoing, we conclude that section 340.1’s revival provision means
what it says. It exempts from revival all claims that have been litigated to finality,
irrespective of the basis for the court’s final determination.
C. Equal protection
Plaintiffs next contend that preventing litigants from reviving their lawsuit violates
equal protection, because it treats one group (those who litigated their claims to finality)
differently than another (those who did not) without a rational basis for the unequal
treatment. We disagree.
“The Fourteenth Amendment to the United States Constitution and article I,
section 7 of the California Constitution guarantee all persons the equal protection of the
laws.” (People v. Edwards (2019) 34 Cal.App.5th 183, 195.) “ ‘ “The first prerequisite
to a meritorious claim under the equal protection clause is a showing that the state has
adopted a classification that affects two or more similarly situated groups in an unequal
manner.” [Citations.] This initial inquiry is not whether persons are similarly situated for
all purposes, but “whether they are similarly situated for purposes of the law
challenged.” ’ [Citations.]” (People v. Morales (2016) 63 Cal.4th 399, 408, italics
omitted.)
Here, section 340.1 distinguishes between those who litigated their claims to
finality prior to January 1, 2020, from others similarly situated who had not previously
litigated their cases to finality. Thus, the two groups are similarly situated for purposes
of the law.
“When, as here, the classification is not based on a suspect class and does not
involve a fundamental right, we evaluate the classification under the ‘rational basis’ test

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and determine only if the classification ‘bears a fair relationship to a legitimate public
purpose.’ [Citation.] We remain ‘[m]indful of the deference we must accord the
Legislature under the rational basis standard’ [citation] and uphold a statutory
classification against an equal protection challenge ‘if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification.’
[Citation.]” (People v. Conley (2004) 116 Cal.App.4th 566, 574.) “While the realities of
the subject matter cannot be completely ignored [citation], a court may engage in
‘ ‘‘rational speculation” ’ as to the justifications for the legislative choice [citation]. It is
immaterial for rational basis review ‘whether or not’ any such speculation has ‘a
foundation in the record.’ [Citations.]” (People v. Turnage (2012) 55 Cal.4th 62, 75.)
Here, the Legislature had a rational basis for differentiating between the two
classes. As discussed, it could not permit those who had litigated their claims to finality
(on any grounds) to revive their claims, because doing so would violate the separation of
powers. This provides a sound rational basis for the distinction.
In reaching this conclusion, we acknowledge that “penalizing” plaintiffs for their
diligence in bringing claims years ago, while “rewarding” those who sat on their claims
and did nothing, is not a wholly equitable outcome. Nonetheless, while the Perez court
also recognized this potential unfairness, it explained that conversely, “there are the
defendants who years ago obtained favorable judgments based on the law as it then
existed, likely incurring substantial attorney’s fees in order to do so. Relying on what
appeared to be a final judgment, they might have felt free years later to discard favorable
evidence and might as well have lost track of key witnesses.” (Perez, supra, 146
Cal.App.4th at p. 188.) Thus, the Legislature may have barred plaintiffs from relitigating
claims not only because of separation of powers concerns, but also because reviving fully
adjudicated claims would unfairly impact those defendants who depended on the finality
of those decisions. These are sufficient rational bases for distinguishing between the two

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groups. Thus, section 340.1’s revival provision does not violate the equal protection
clause.
DISPOSITION
The judgment is affirmed. The District shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2).)

KRAUSE , J.

We concur:

DUARTE , Acting P. J.

EARL , J.

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