Lawsuits related to AB 218 create costs and confusion for California schools
AB 218 expands the window for childhood sexual assault claims
view of people's hands signing paper work in an legal setting

In the 2000s, a legislative trend of making it easier for plaintiffs of childhood sexual assault (CSA) claims to bring lawsuits against public entities emerged. For example, the claims presentation requirement for suing local public entities for money damages under the Government Tort Claims Act was removed by the Legislature for all claims from 2009 onward. Then in 2019, the Legislature passed Assembly Bill 218, which extends the statute of limitations for bringing these claims and provides a “lookback window” that allowed CSA claims that are alleged to have occurred at any time to be filed without satisfying the claims presentation requirement, if they were filed between January 2020 and December 2022.

While the claims allowed by laws in the legislative trend favoring CSA plaintiffs can typically be planned for (see the Legal article in the January newsletter), the claims made accessible under AB 218 create a series of issues for local educational agencies, especially as courts and juries begin to make decisions on these cases that are often decades old. In response, LEAs, with the help of CSBA’s Education Legal Alliance (ELA), are challenging AB 218’s constitutionality and pointing out the law’s major policy implications.

Legal and policy considerations against AB 218 and resulting cases

In the public discourse of AB 218 cases, there is a belief that the awards to plaintiffs are just insurance funds that do not impact the LEAs directly. In reality, the cost and outcome of these cases is falling squarely on LEAs and is very rarely covered by insurance. This is the result of several factors including that, in many instances where the claims are based on actions from decades ago, there is no way to identify the insurance details from the time of the alleged events. Similarly, witnesses and records related to an alleged event or employee accused of wrongdoing are hard, if not impossible, to find as an LEA builds a defense. As a result of these challenges, LEAs are left to cover huge awards to plaintiffs. These are some of the policy arguments that the ELA has made in its amicus briefs and letters filed to support LEAs.

The constitutionality of AB 218 is also subject to question. Several LEAs have argued that the constitutional limits of the Legislature’s authority and the inability of public entities to gift public funds make AB 218 unlawful. Based on several California Supreme Court cases, the Legislature is not permitted to impose liability on a public agency where there previously was none. (This same argument is not applicable to retroactively lifting a statute of limitations.) The ELA and affected LEAs argue that AB 218 does just that because claims presentation requirements are “elements of the plaintiff’s cause of action and conditions precedent to the maintenance of the action.” Because of AB 218, a plaintiff who would not have had a claim without satisfying the claims presentation requirement, now has a claim, and an LEA that would have had no liability, now has some potential liability.

There is an exception to the prohibition on gifts of public funds where there is a “public purpose” to the gift that more broadly serves the public and the state beyond just private compensation. In these cases, plaintiffs have argued that the compensation of individual victims constitutes a “public purpose,” thus exempting AB 218 from the prohibition on gifts of public funds. However, LEAs and the ELA have argued, with support from prior court precedent, that the compensation of individuals, while noble, does not meet the definition of a public purpose that would allow such an exemption.

Recent decisions in cases related to AB 218

These arguments have been raised in several AB 218 cases with inconsistent results so far, but the ELA is hopeful they will become more prevalent and determinative as the cases make their way through the appellate courts and potentially to the California Supreme Court. West Contra Costa Unified School District challenged three different AB 218 cases (with allegations in the years 1979–83, 1971–73, and 1974–75) by seeking to have AB 218 declared as an unconstitutional gift of public funds based on the legal argument discussed previously. In two of these cases, the superior court rejected the argument and denied the district’s request. However, in the third case, heard by the same court as the other two cases with a different judge, the court accepted the argument and prevented the case from moving forward. As a result, the district is asking the appellate court to reconsider the question and issue a writ that would create a consistent finding that AB 218 is an unconstitutional gift of public funds. The ELA filed a letter in support of the district’s two requests for a writ from the appellate court. One of the cases has been accepted by the appellate court, and the ELA is preparing its amicus brief in support of the district (the other case is still pending).

Similarly, in North Monterey County, a superior court recently accepted the gift of public funds argument in a case involving alleged events from 2002–03. Merced City School District is challenging AB 218’s constitutionality, but focusing on the creation of liability for LEAs where there was none before, rather than emphasizing the gifts of public funds argument.

LEAs and the ELA recognize that victims of CSA deserve support that enables them to heal from such awful experiences. However, having LEAs bear the cost of remedying events that occurred decades ago will undoubtedly hamper their ability to provide basic education to present day students. The implications of AB 218 are just beginning to materialize for LEAs throughout the state, but it is certainly clear that efforts are being made by LEAs and the ELA to limit the impacts as much as possible.