Filed 10/25/22

CERTIFIED FOR PUBLICATION 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

K.M. et al.,

Plaintiffs and Appellants,

v.

GROSSMONT UNION HIGH SCHOOL 

DISTRICT,

Defendant and Respondent.

 D075957

 (Super. Ct. Nos. 37-2015-00004806-

CU-PO-CTL, 37-2015-00031982-CUPO-CTL, 37-2016-00006248-CU-POCTL)

 

K.M. et al.,

Plaintiffs and Respondents,

v.

GROSSMONT UNION HIGH SCHOOL 

DISTRICT,

Defendant and Appellant.

 

 D076833

APPEALS from a judgment and postjudgment orders of the Superior 

Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed.

The Zalkin Law Firm, Irwin M. Zalkin and Devin M. Storey, for 

Plaintiffs and Appellants.
2

Artiano Shinoff, Paul V. Carelli IV, Gil Abed, and Daniel R. Shinoff, for 

Defendant and Appellant.

Leone & Alberts, Louis A. Leone and Seth L. Gordon for Northern 

California Regional Liability Excess Fund, Southern California Regional 

Liability Excess Fund, Statewide Association of Community Colleges, and 

School Association for Excess Risk as Amici Curiae on behalf of Defendant 

and Appellant.

INTRODUCTION

Plaintiffs K.M., H.R., and M.L. (Plaintiffs) sued the Grossmont Union 

High School District (the District) for negligence based on alleged sexual 

abuse by their high school drama teacher, James Chatham.1 They also 

asserted sexual harassment claims under Civil Code section 51.9, to which 

the District successfully demurred. The District made Code of Civil 

Procedure section 998 offers, which Plaintiffs did not accept.2 The case

proceeded to a jury trial, where the trial court excluded certain evidence and 

mistakenly included Plaintiffs in an oral jury instruction regarding 

apportionment of fault. Plaintiffs prevailed, and the jury assigned 60 percent 

of fault to Chatham, and 40 percent to the District, with resulting damage 

awards lower than the section 998 offers. The parties moved to tax each 

1 Plaintiffs describe themselves by surname or as Roe plaintiffs. The 

District uses their names, noting they appear in the record. We recognize 

Plaintiffs’ interest in privacy, but use first and last initials for clarity. We 

also abbreviate certain other names, and no disrespect is intended.

2 Further statutory references are to the Code of Civil Procedure, unless 

otherwise noted.
3

other’s costs. The trial court ruled the offers were invalid, granted Plaintiffs’

motion, and denied the District’s motion in pertinent part. 

Both parties appealed. The Legislature later enacted Assembly Bill 

No. 218 (Assembly Bill 218 or Assem. Bill 218), which amended Code of Civil 

Procedure section 340.1, to reduce procedural barriers for childhood sexual 

abuse claims and to allow treble damages for a claim involving a prior coverup of abuse.

Plaintiffs seek a new trial. They contend they are entitled to pursue 

treble damages, and that the trial court erred by sustaining the demurrers to 

their sexual harassment claims, excluding certain evidence, and giving the

erroneous oral jury instruction. The District argues the trial court wrongly 

determined its Code of Civil Procedure section 998 offers were invalid. We 

conclude the treble damages provision in Code of Civil Procedure section 

340.1 is neither retroactive, nor applicable to public school districts. We 

further conclude Plaintiffs do not establish they can pursue sexual 

harassment claims against the District under Civil Code section 51.9. The 

parties do not establish reversible error on the other asserted grounds, either. 

We affirm the judgment and postjudgment orders. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Events

Plaintiffs attended Granite Hills High School (“Granite Hills”) between 

2009 and 2015. Chatham was the drama teacher until 2014. Georgette 

Torres was the school principal until 2013, and passed away in 2016. Jake 

Gaier and Michael Fowler served as assistant principals, with Fowler leaving 

for another school in 2011 and returning as principal in 2013. 
4

The District had a policy prohibiting sexual harassment. There was 

also an online training program titled, “Making Right Choices” for staff and 

students, which addressed inappropriate conduct and reporting. 

Former head custodian Sonia Villa received reports from custodians 

who saw Chatham with male students, and told her supervisor, Janie 

Wright, and teachers about these reports. Around 2010, she attended a 

meeting with Wright, Torres, and Fowler, at which Torres questioned why 

Villa was talking to teachers about other teachers and (according to Villa) 

required her to sign something. 

In November 2011, a student’s parents emailed Gaier to report 

inappropriate conduct by Chatham, including telling the students, “get up on 

stage we are filming a porno” and having a male visitor who would sit on his 

lap and whom he would ask to “kiss him.”3 Torres and Gaier held a meeting 

with Chatham, he agreed to stop, and they placed the email and meeting 

notes in his file as a written record. Gaier conducted a follow-up classroom 

visit, and did not hear further complaints or rumors about Chatham. 

Between 2011 and 2014, Chatham engaged in sexual contact with each 

Plaintiff, which they described at trial and we address post. 

In late January 2014, a female student and her mother told Granite 

Hill’s resource officer, Robert Lesagonicz (Officer L.), that Chatham was 

sexually touching students. Fowler, who was now principal, placed Chatham 

on administrative leave. Officer L. conducted an investigation in which he 

interviewed the Plaintiffs and others. El Cajon Police Department detective 

David Vojtaskovic (Detective V.) also conducted an investigation. H.R.

3 Other alleged conduct included telling a boy he looked like a porn star; 

telling a “boy to get behind [another boy] (sexually)”; and using terms like 

“dick, pussy, ass, porn, shit” and “that’s what he/she said.” 
5

organized a meeting with K.M. and others in early February 2014 to discuss 

Chatham, at which they initially agreed to protect him; M.L. was not present. 

The District subsequently terminated Chatham’s employment. 

B. Litigation and Pretrial Proceedings

In 2015 and 2016, each Plaintiff sued the District. The operative 

complaints asserted claims for negligence; negligent supervision; negligent 

hiring or retention; negligent failure to warn, train, or educate students;

intentional infliction of emotional distress; and sexual harassment under 

Civil Code section 51.9.4

The District demurred to the claims for sexual harassment under Civil 

Code section 51.9, arguing in part that it was not subject to liability. The 

trial court consolidated the cases, including for purposes of the demurrers. In 

June 2016, the court sustained the demurrers without leave to amend. 

In May 2018, the District made the operative Civil Code section 998 

offers, which Plaintiffs did not accept. 

C. Trial

The matter proceeded to a jury trial in November 2018 on Plaintiffs’ 

negligence claims. The jury heard extensive witness testimony, which we 

now summarize.5 

4 Plaintiffs cited Government Code section 815.2 and 820 as the basis for 

their negligence claims. H.R. also asserted claims under the Fair 

Employment and Housing Act, which the District represents were dismissed 

and are not at issue here. 

5 We focus here on Plaintiffs’ experiences with Chatham, the events in 

2010 and 2011, and an overview of the psychiatric expert testimony. We 

discuss other relevant testimony, post.
6

1. Plaintiffs’ Testimony

K.M. took Chatham’s class his sophomore year. Chatham engaged in 

improper conduct with male visitors, like having them sit on his lap. K.M.

then did a summer theater program, in which Chatham did similar things, 

along with a “game” that involved almost kissing the boys. He started 

touching K.M., including nibbling on his ear, massaging his head and 

shoulders, and touching his stomach and thigh. K.M. said “it was a constant 

thing . . . so it became normal . . . .” During K.M.’s junior year, Chatham 

touched K.M.’s genitals over his pants and under his underwear, and kissed 

him. Chatham’s behavior continued into his senior year, and K.M. eventually

stopped interacting with him. During Officer L.’s investigation, K.M. initially 

denied doing anything with Chatham, stating he was worried if people would 

“think if [he] was gay” or “just a rat . . . .” He later described Chatham’s

conduct verbally for Officer L., but did not include in his written statement 

that Chatham touched his genitals. He also did not tell Detective V. about 

everything that happened, explaining he was “embarrassed” and “still 

struggling” with why he let it happen. K.M. was now serving in the military 

and married with a child. 

H.R. took Chatham’s class his junior year. H.R. first saw Chatham 

touch other boys, and Chatham then started touching him, including pulling 

him on his lap; nibbling his ears; rubbing his shoulders, chest, and legs; and 

doing the kissing game. H.R. said it felt “so normal,” the students would 

mimic Chatham, and it was how they “joked around.” Chatham later touched 

him under and over his underwear, and flicked his crotch. H.R. further 

testified his father had been difficult, his parents made him leave the home 

his senior year, and Chatham helped him get a job in community theater and 

work as his unpaid teaching assistant. H.R. said he avoided Officer L.’s calls 
7

and organized the meeting to help Chatham, because Chatham “meant a lot” 

to him. He told Detective V. only about “minor things,” to protect Chatham.

M.L. played multiple sports in high school, and excelled at football. He 

took a class with Chatham the first semester of his junior year. Chatham 

became “like a . . . close friend,” started doing the kissing game, and one day 

groped his leg. M.L. said he was “weirded out,” but thought it was a joke and 

did not report it. Chatham touched his legs repeatedly, felt “up [his] shirt,” 

and groped and wrestled with him. Two weeks before Chatham was placed 

on leave, he touched M.L.’s genitals under his shorts. M.L. acknowledged he 

did not disclose the genital touching until early 2018, when he told Plaintiffs’ 

expert psychiatrist, Dr. Calvin Colarusso. He said he did not tell Detective V. 

everything because he was embarrassed and did not want this to take away 

from his athletic success. After high school, M.L. attended Grossmont 

Community College, where he played football for a period of time. 

2. Testimony Regarding 2010 Villa Meeting

Former head custodian Sonia Villa testified about custodian reports 

about Chatham, and her meeting with school administration. She said she 

received multiple reports from a female custodian, including one time when 

Chatham and a male student were in his office with the lights off, and told 

her supervisor, Janie Wright, and a teacher. Villa said that another time, 

custodian William Kennedy reported a boy was laying on Chatham’s leg on a 

sofa, and Chatham was touching the boy’s hair. When Villa arrived, they 

were just sitting on the sofa. She told Wright, as well as another teacher, 

Joni Mah. Mah told her to tell an assistant principal, but Villa was 

concerned about “jump[ing] her supervisor” and getting fired. 

Villa stated she was called into a meeting with Wright, Fowler, and 

Torres. According to Villa, Torres said she heard Villa was talking about 
8

“Chatham doing inappropriate stuff” and asked, “why I don’t come to her, 

why I came to a teacher and told her before her.” Villa stated Torres had a 

“paper” ready, and said, “[F]rom now on, she don’t want to hear that I talk 

about any teacher in any way, . . . and . . . I’m not allowed to say anything to 

anybody, to any teacher, . . . to my custodians and that this is what I have to 

sign the paper.” She signed the paper because she “need[ed] the job.” Villa 

then told the custodians they now had to “give [her complaints] in writ[ing].” 

Mah, Kennedy, and Fowler also testified about these events.6 Mah 

confirmed Villa talked to her about Kennedy’s report, and said she talked to 

Fowler. Kennedy said he saw Chatham and the boy sitting side by side, with 

the lights down; Torres and Wright met with him and explained they were 

doing plays; and he denied they told him not to raise concerns. Fowler 

testified the Villa meeting was “about [Villa] complaining to teachers versus 

management.” He denied Torres told Villa not to report inappropriate 

conduct by Chatham, or gave her anything to sign (although he testified at 

deposition that he did not remember any paperwork). Mah testified Villa

subsequently said she was “told she shouldn’t be talking to teachers about 

other teachers” and “had to sign something,” and that Torres said she “talked 

to [Villa] about gossiping about teachers with other teachers.” 

3. Testimony Regarding 2011 Email 

Gaier testified about the 2011 email regarding Chatham, and the 

meeting and classroom visit that followed. He agreed that multiple actions

violated the sexual harassment policy. He said he immediately told Torres, 

who concurred the behavior was inappropriate. During the meeting,

6 Kennedy’s deposition testimony was read for the jury, as he was 

deceased by the time of trial. Torres was also deceased, and Wright did 

testify, but had no recollection of the events. 
9

Chatham acknowledged certain behaviors, they took him at “his word” that it 

would stop, and put the documentation in his file. Gaier agreed Chatham

“was not just given a stern warning; he was given discipline.” Gaier said that 

when he visited Chatham’s classroom, Chatham acted appropriately and he 

did not receive further complaints. 

The student whose parents sent the email testified that after Gaier’s 

classroom visit, Chatham told the class someone “ratted him out for being 

inappropriate.” 

Steven Sonnich, the District’s associate administrator for human 

resources from around 2004 to 2016 (i.e., its chief personnel officer), was 

asked about the incident. He said placement of a document in Chatham’s 

personnel file reflected it was a serious matter, and was “deemed serious by 

employees.” He also said a visit could “send [a] message,” if it carried the 

connotation that the teacher was “under a microscope,” but had 

acknowledged at deposition that a single visit was not a strategy he would 

have used. 

4. Expert Witness Testimony

Both sides offered psychiatric experts. Dr. Calvin Colarusso testified 

for Plaintiffs. He said each Plaintiff experienced child sexual abuse and posttraumatic stress disorder (PTSD), which could result from sexual abuse. He 

also determined K.M. had depression encompassed by his PTSD, H.R. had 

major depressive disorder, and M.L. had cannabis use disorder. 

Dr. Colarusso noted H.R. was diagnosed with depression previously and 

family issues contributed to it, but said the “sexual abuse exaggerated the 

depression.” For M.L., he acknowledged other factors contributed to his 

trauma, but said there would be no PTSD without the sexual abuse. 
10

Dr. Colarusso opined each Plaintiff needed years of therapy, now and in the 

future. 

The District’s psychiatric expert was Dr. Dominick Addario. He noted 

it was “very rare” for PTSD to develop in a situation not involving fear, and 

“most PTSD or stress-related issues from trauma take around 16 to 36 

months to clear.” He opined K.M. had heightened scores for anxiety and 

negativity, but would be in the same place without the experience with 

Chatham. He opined H.R. had major depressive disorder, noting his history 

of psychiatric and family issues, and 30 percent of his problems related to 

Chatham. As for M.L., Dr. Addario testified he had adjustment disorder with 

mild depressive features, and 15 percent of his issues were from Chatham. 

D. Jury Instructions, Verdict, and Post-Trial Proceedings

The trial court instructed the jury that Plaintiffs contended they were 

harmed by the District’s negligence, and the District denied these allegations. 

In giving jury instruction 406 of the Judicial Council of California Civil Jury 

Instructions (CACI 406), regarding apportionment of fault among joint 

tortfeasors, the court mistakenly included “Plaintiffs.” The trial court also 

told the jury there were two stipulations; that the District responded 

“appropriately and reasonably” to the 2014 report on Chatham, and that 

there were no prior student complaints besides the 2011 report. 

In February 2019, the jury returned verdicts for Plaintiffs. The jury 

awarded damages of $480,000 to H.R.; $120,000 to K.M., and $135,000 to 

M.L. The jury apportioned 60 percent fault to Chatham and 40 percent fault 

to the District. With this apportionment, and application of Civil Code 
11

section 1431.2, the District was required to pay damages of $240,000 to H.R., 

$60,000 to K.M., and $69,000 to M.L.7

Plaintiffs unsuccessfully moved for a new trial, asserting the trial court 

erroneously excluded certain evidence and included them in the CACI 406 

instruction. In February 2019, the trial court entered judgment. The court

then granted Plaintiffs’ motion to tax costs, and denied the District’s motion 

to tax costs in part, on the grounds that the District’s section 998 offers were 

invalid. 

Both parties timely appealed. We granted the application of the 

Northern California Regional Liability Excess Fund, Southern California 

Regional Liability Excess Fund, Statewide Association of Community 

Colleges, and School Association for Excess Risk to file an amicus curiae 

brief, and permitted the parties to file supplemental briefs to address the 

amicus brief and recent case law regarding section 340.1 treble damages.8 

DISCUSSION

I. Plaintiffs’ Appeal From Judgment

Plaintiffs argue they are entitled to seek the newly-available treble 

damages, and that the trial court erred by sustaining the District’s 

7 Under Civil Code section 1431.2, “[i]n any action for personal injury, 

property damage, or wrongful death, based upon principles of comparative 

fault, the liability of each defendant for non-economic damages shall be 

several only and shall not be joint.” The damages here were awarded as 

follows: H.R. ($80,000 economic, $400,000 non-economic); K.M. ($20,000 

economic, $100,000 non-economic), and M.L. ($25,000 economic, $110,000 

non-economic).

8 Los Angeles Unified School District v. Superior Court (2021) 64 

Cal.App.5th 549 (review granted Sept. 1, 2021, S269608) (LAUSD) and X.M. 

v. Superior Court (2021) 68 Cal.App.5th 1014 (review granted Dec. 1, 2021, 

S271478) (X.M.).
12

demurrers to their sexual harassment claims, refusing admission of certain 

evidence, and including Plaintiffs in the CACI 406 instruction to their 

prejudice. We reject each argument. 

A. Overview of Applicable Law

1. Statutory Interpretation 

In interpreting a statute, “we look first to the words of a statute, 

‘because they generally provide the most reliable indicator of legislative 

intent.’ [Citation]. We give the words their usual and ordinary meaning 

[citation], while construing them in light of the statute as a whole and the 

statute’s purpose.” (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 

524, 530-531 (Pineda); see Monterey Peninsula Water Management Dist. v. 

Pub. Utilities Com. (2016) 62 Cal.4th 693, 699 (Monterey) [“statutory 

language cannot be read in isolation; like all language, statutory language 

takes its meaning from the context in which it appears”].) “ ‘If there is no 

ambiguity in the language, we presume the Legislature meant what it said 

and the plain meaning of the statute governs.’ ” (Pineda, at p. 530.)

“If the statutory terms are ambiguous, we may examine extrinsic 

sources, including the ostensible objects to be achieved and the legislative 

history. [Citation.] In such circumstances, we choose the construction that 

comports most closely with the Legislature’s apparent intent, endeavoring to 

promote rather than defeat the statute’s general purpose, and avoiding a 

construction that would lead to absurd consequences.” (Smith v. Superior 

Court (2006) 39 Cal.4th 77, 83.)

2. Standard of Review

When an appeal raises a pure issue of law, including as to statutory 

interpretation, we review the issue de novo. (People ex rel. Lockyer v. 

Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; Pineda, supra, 51 Cal.4th at 
13

p. 529.) Only prejudicial error is grounds for reversal. (Soule v. General 

Motors Corp. (1994) 8 Cal.4th 548, 573-574 (Soule).) The appellant has the

burden to “show not only that the trial court erred, but also that the error 

was prejudicial . . . .” (Hoffman Street, LLC v. City of West Hollywood (2009) 

179 Cal.App.4th 754, 772.) We address other applicable standards of review 

as necessary for particular issues.9

B. Treble Damages

Plaintiffs contend they are entitled to a new trial to seek treble 

damages under Assembly Bill 218. We conclude the treble damages provision 

is neither retroactive, nor applicable to public school districts.10

1. Section 340.1 and Assembly Bill 218

“Section 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 (Quarry).) After its enactment in 1986, the section was 

amended repeatedly to expand the statute of limitations and reduce other 

barriers to claims, including with a one-year claim revival period in 2002. 

9 To the extent Plaintiffs cite statutes (e.g. Civ. Code, § 1708.5.5, Gov. 

Code, § 815.6), but provide no reasoned argument or separate headings, any 

points regarding them are deemed forfeited. (Badie v. Bank of America

(1998) 67 Cal.App.4th 779, 784-785 [“When an appellant fails to raise a point, 

or asserts it but fails to support it with reasoned argument and citations to 

authority, we treat the point as waived.”]; Cal. Rules of Court, rule 

8.204(a)(1)(B) [briefs must “[s]tate each point under a separate heading or 

subheading summarizing the point”].) Points raised by the parties for the 

first time on reply could also be deemed forfeited, but we elect to address 

them as we deem appropriate. (American Drug Stores, Inc. v. Stroh (1992) 10 

Cal.App.4th 1446, 1453 [“[p]oints raised for the first time in a reply brief will 

ordinarily not be considered”].)

10 We need not and do not reach the District’s contention that retroactive 

treble damages would violate ex post facto principles. 
14

(Ibid.) Assembly Bill 218 further extended the statute of limitations, 

permitted up to treble damages for abuse resulting from a cover-up, and 

provided a three-year claim revival period. (Assem. Bill 218, § 1.) 

Section 340.1, subdivision (a), now permits an “action for recovery of 

damages suffered as a result of childhood sexual assault” to be brought 

within 22 years of the age of majority (i.e., age 40) or five years of when the 

plaintiff discovered the injury or should have. (§ 340.1, subd. (a).) Section 

340.1, subdivisions (a)(1)-(3) describe the actions to which subdivision (a) 

applies. (See § 340.1, subd. (a)(1) [person who commits act]; id., subd. (a)(2) 

[person or entity with duty of care to plaintiff, where negligent act was a 

legal cause of assault]; id., subd. (a)(3) [person or entity, where intentional 

act was a legal cause of assault].) 

Section 340.1, subdivision (b)(1), the treble damages provision, states: 

“In an action described in subdivision (a), a person who is sexually assaulted 

and proves it was as the result of a cover up may recover up to treble 

damages against a defendant who is found to have covered up the sexual 

assault of a minor, unless prohibited by another law.” Section 340.1, 

subdivision (b)(2) states a “ ‘cover up’ is a concerted effort to hide evidence 

relating to childhood sexual assault.” 

Section 340.1, subdivisions (q) and (r) address claim revival. 

Subdivision (q) states, “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. A plaintiff shall have the later of the 

three-year time period under this subdivision or the time period under 
15

subdivision (a) as amended by [Assembly Bill 218].” Subdivision (r) 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 

[its] enactment . . . , and to any action filed before [its] enactment, and still 

pending . . . , including any action or causes of action that would have been 

barred by the laws in effect before the date of enactment.”

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. 

(Former Gov. Code, § 905, subd. (m) [exemption for Code Civ. Proc., § 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 are 

retroactive”].)

2. Retroactivity

Plaintiffs contend all of Assembly Bill 218’s changes, including the new 

treble damages provision, apply retroactively. The District maintains this

provision is a substantive change, and as there is no clear legislative intent 

for retroactive application, it applies prospectively. We conclude the treble 

damages provision operates prospectively only. 

a. Applicable Law

“[S]tatutes ordinarily are interpreted as operating prospectively in the 

absence of a clear indication of a contrary legislative intent,” and there is a

“presumption against retroactive application . . . .” (Quarry, supra, 53 

Cal.4th at p. 955.) “We apply the presumption in the absence of explicit 

legislative indications of retroactivity, doing so based on the fundamental 
16

fairness considerations raised by ‘ “imposing new burdens on persons after 

the fact.” ’ ” (McHugh v. Protective Life Ins. Co. (2021) 12 Cal.5th 213, 229

(McHugh).)

“ ‘In deciding whether the application of a law is prospective or 

retroactive, we look to function, not form. . . . Does the law “change[ ] the 

legal consequences of past conduct by imposing new or different liabilities 

based upon such conduct[?]” [Citation.] Does it “substantially affect[ ] 

existing rights and obligations[?]” [Citation.] If so, then application to a trial 

of preenactment conduct is forbidden, absent an express legislative intent to 

permit such retroactive application. If not, then application to a trial of 

preenactment conduct is permitted, because the application is prospective.’ ” 

(Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 

231-232 (Mervyn’s); accord, McHugh, supra, 12 Cal.5th at p. 229.) 

We focus on “whether the statutory change in question significantly

alters settled expectations. . . .” (McHugh, supra, 12 Cal.5th at p. 230;

compare, e.g., Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193-

1194 (Evangelatos) [new liability under Proposition 51 applied prospectively], 

with McHugh, at pp. 231-232 [new insurance grace period and notice rules 

applied to existing actions; they made “relatively cabined, procedural 

changes” to policy administration, and did not “unfairly ‘rewrite’ existing 

policies”]; see also Mervyn’s, supra, 39 Cal.4th at pp. 231-232 [impermissible 

retroactive rules included “subject[ing] tobacco sellers to tort liability for acts 

performed” when “protect[ed] [by] an immunity statute,” while permissible 

prospective rules included eliminating right under anti-SLAPP to “dismiss 

certain public-interest lawsuits”].)

“Ambiguous statutory language will not suffice to dispel the 

presumption against retroactivity; rather ‘ “a statute that is ambiguous with 
17

respect to retroactive application is construed . . . to be unambiguously 

prospective.” ’ ” (Quarry, supra, 53 Cal.4th at p. 955.)

b. Statutory Language

Section 340.1 contains no language that supports retroactive treble 

damages. Subdivision (b), the treble damages provision, is silent as to 

timing. Subdivisions (q) and (r) revive claims based on conduct prior to 

enactment of Assembly Bill 218, but expressly reference only subdivision (a), 

not subdivision (b). (See § 340.1, subd. (q) [three-year revival period for nonfinal “claim for damages described in . . . subdivision (a)”]; id., subd. (r) 

[changes to “time period under subdivision (a)” under Assembly Bill 218 

apply to and revive non-final actions]; see also § 3 [“No part of [this code] is 

retroactive, unless expressly so declared.”].)

Plaintiffs maintain that because section 340.1, subdivision (b) “refers 

back” to section 340.1 subdivision (a), and subdivision (r) makes actions

under subdivision (a) retroactive, then subdivision (b) claims are “necessarily 

encompassed” in subdivision (a) and also retroactive. They further suggest

that because Assembly Bill 218 added both subdivision (b) and the claim 

revival provisions, subdivision (b)’s “reference to ‘subdivision (a)’ was made 

with the understanding that [s]ubsections (q) and (r) revived any claims for 

damages falling within [s]ubsection (a).” (Italics omitted.) None of this is 

persuasive. If the Legislature intended section 340.1, subdivisions (q) and (r) 

to apply to subdivision (b), it could have said so, instead of relying on crossreferences through subdivision (a). Regardless, Plaintiffs’ reading of these 

provisions is at best a competing interpretation, which would render them

ambiguous and insufficient for retroactive application of subdivision (b). 

(Quarry, supra, 53 Cal.4th at p. 955.)
18

c. Statutory Scheme

Prospective application of the treble damages provision is also 

consistent with the statutory scheme. As described above, Assembly Bill 218

both reduced barriers to childhood sexual assault claims and added treble 

damages for assault resulting from a cover-up. The provisions aimed at 

reducing barriers either do not implicate improper retroactivity, or use

express revival or retroactivity language. (See Quarry, supra, 53 Cal.4th at 

p. 956 [where “former limitations period has not expired, an enlarged 

limitations period ordinarily applies and is said to apply prospectively”]; Code 

Civ. Proc., § 340.1, subds. (q), (r) [express revival language]; Gov. Code, § 905, 

subd. (p) [express retroactivity language].) In contrast, the new treble 

damages provision imposed new and significant liability, and lacked any 

retroactivity language. (§ 340.1, subd. (b).) This change altered “ ‘ “the legal 

consequences of past conduct by imposing new . . . liabilities,” ’ ” and thus 

“ ‘application to a trial of preenactment conduct is forbidden.’ ” (Mervyn’s, 

supra, 39 Cal.4th at pp. 231-232; accord, McHugh, supra, 12 Cal.5th at 

p. 229.) 

Plaintiffs’ arguments lack merit. First, they contend section 340.1, 

subdivision (a), “does not define covered actions by the specific type of 

damages sought, e.g., compensatory, treble, etc.” This argument ignores both 

general tort principles, and the structure of section 340.1. Prior to Assembly

Bill 218, subdivision (a) already applied to an “action for recovery of

damages,” and tort actions presumptively allow damages “for the purpose of 

compensating . . . .” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 146-

147 (Kizer).) Assembly Bill 218 added treble damages in a different 

subdivision—subdivision (b)—and, as explained above, the claims revival 

provisions referenced only subdivision (a).
19

Second, Plaintiffs contend an “analysis of whether [section 340.1, 

subdivision] (b) is retroactive is misplaced,” as it “governs the remedy for an 

existing cause of action” and “does not create a new cause of action.” Citing 

older authority, they state a statute is “procedural” when “it merely provides 

a new remedy,” and “neither creates a new cause of action nor deprives 

defendant of any defense on the merits.” (See, e.g., Kuykendall v. State Bd. of 

Equalization (1994) 22 Cal.App.4th 1194, 1211, fn. 20.) Under current law, it 

is “ ‘not significant whether the statute is labeled substantive or procedural 

in nature.’ ” (Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 379; 

Mervyn’s, supra, 39 Cal.4th at pp. 231-232 [we “look to function, not form”].) 

Nor is a new cause of action, or omission of a defense, necessary. (Cf. ARA 

Living Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 

1564 (ARA Living) [although amendment to elder abuse law “fell short of 

creating a cause of action,” it did not “prescribe[ ] only procedures for trials”].) 

Rather, the issue is whether a law makes a significant change to potential 

liability. (Mervyn’s, at pp. 231-232; accord, McHugh, supra, 12 Cal.5th at 

p. 230.) Assembly Bill 218’s addition of treble damages does so.

We also reject Plaintiffs’ reliance on attorney fees cases. Courts treat 

“legislation affecting the recovery of costs, including attorney fees, as 

addressing a ‘procedural’ matter that is ‘prospective’ in character and thus 

not at odds with the general presumption against retroactivity.” (USS-Posco 

Industries v. Case (2016) 244 Cal.App.4th 197, 221.) The cases cited by 

Plaintiffs follow that approach, but do not involve damages and offer no 

guidance here. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 

23 Cal.3d 917, 930-932; Olson v. Hickman (1972) 25 Cal.App.3d 920, 922.) 

ARA Living did involve both fees and damages, and illustrates they remain 

distinct. (ARA Living, supra, 18 Cal.App.4th at p. 1562.) There, the Court of 
20

Appeal held attorney fee changes applied to pending actions, but a new 

provision allowing successors (not just surviving victims) to recover pain and 

suffering damages applied prospectively only. (Id. at pp. 1562-1564.)

More broadly, Plaintiffs contend the Legislature intended “to broaden 

the scope and application of [section] 340.1 to the widest possible extent, as it 

has consistently done over decades,” noting Assembly Bill 218’s retroactive 

change to Government Code section 905 as well. There is no dispute that 

Assembly Bill 218, and prior amendments to section 340.1, aimed to reduce 

barriers to recovery for childhood sexual assault victims. (See, e.g., Coats v. 

New Haven Unified School Dist. (2020) 46 Cal.App.5th 415, 430 and fn. 7

[“the Legislature has consistently worked to expand the ability of victims of 

childhood sexual abuse to seek compensation”]; McVeigh v. Doe 1 (2006) 138 

Cal.App.4th 898, 903-904 [“The overall goal of section 340.1 is to allow 

victims of childhood sexual abuse a longer time period in which to bring suit 

against their abusers.”].) But that overarching goal does not mean the 

Legislature intended one particular provision (here, adding treble damages) 

to apply retroactively. (Cf. Evangelatos, supra, 44 Cal.3d at p. 1213 [“Most 

statutory changes are . . . intended to improve a preexisting situation and to 

bring about a fairer state of affairs, and if such an objective were itself 

sufficient to demonstrate a clear legislative intent to apply a statute 

retroactively, almost all statutory provisions . . . would apply retroactively 

rather than prospectively.”].)

d. Legislative History

Finally, the legislative history for Assembly Bill 218 does not support 

retroactive application of the treble damages provision.

We begin with the parties’ requests for judicial notice. We take notice

of the Assembly Bill 218 bill history, including interim versions and 
21

committee reports and analyses, as well as fact sheets from the bill’s author. 

(Evid. Code, § 452, subd. (c) [official records of Legislature are subject to 

judicial notice]; Carter v. California Dept. of Veterans Affairs (2006) 38 

Cal.4th 914, 928 [taking judicial notice of bill author’s fact sheet, where it 

“appear[ed] to be part of the debate on the legislation”].) However, we will 

not take notice of letters to the Legislature, as they do not establish 

legislative intent. (In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 

39, 47, fn. 6 (Pendleton) [denying notice of letters to legislators, which

opposed later-deleted bill text; it was “not apparent” letters were “considered 

by the Legislature when [the bill] was considered” and there was “no basis” to 

assume they “reflect legislative intent”]; see Superior Court v. County of 

Mendocino (1996) 13 Cal.4th 45, 59, fn. 7 [denying judicial notice of irrelevant 

material].) For similar reasons, we also deny notice of news and journal

articles, and the bill author’s press release. (See People v. Garcia (2002) 28 

Cal.4th 1166, 1175, fn. 5 [denying notice of “authoring legislator’s press 

releases and letters”].)

We now turn to the bill history of Assembly Bill 218. We focus on 

materials highlighted by Plaintiffs, and conclude they do not reflect clear

legislative intent for retroactive treble damages. 

First, Plaintiffs argue the “legislative history contains frequent 

references to the retroactive effect of the statute,” citing an Assembly 

Committee on the Judiciary report. (Assem. Comm. Jud., Mar. 12, 2019.) 

The issue is whether the treble damages provision is retroactive, not the 

entire law, and the references they cite do not establish it is. 

Plaintiffs state the report reflected numerous groups opposed the treble 

damages provision, and one insurance group objected “to the application of 

treble damages retroactively . . . .” Input to the legislature does not reflect 
22

legislative intent. (Cf. Pendleton, supra, 24 Cal.4th at p. 47, fn. 6.) Thus, we 

also accord no significance to the fact that, as Plaintiffs note, the “legislative 

history does not reflect any proposed amendment in response to this 

objection.” Plaintiffs then focus on subsequent comments, which state “the 

flip side of the burden of the cost of these claims on [entities] that protected 

sexual abusers of children is the lifetime damage done to those children.” 

The comments continue, stating in part that claim revival “only assures that 

claims can be heard on their merits.” These comments do not constitute a

“clear indication” that the treble damages provision is retroactive. (Quarry, 

supra, 53 Cal.4th at p. 955.) Plaintiffs also note the Assembly report states,

“This measure applies retroactively to local public agencies” and “remov[es] 

the protections of the [Government Tort Claims Act] from local public 

entities.” The “measure applies” statement is a heading for a section that 

addresses only changes to Government Code section 905. The “remov[es] . . . 

protections” language is from a subsequent section, under the heading “The 

bill also exposes those who cover up the sexual abuse of children to additional 

punishment”—which does address cover-up claims and treble damages, but 

not retroactivity. 

Second, Plaintiffs argue the legislative history “confirms a retroactive 

intent,” since “retroactivity was justified” by the harm from the assaults and 

the importance of deterring cover-ups. They cite an “According to the 

Author” section of an Assembly report, which in addressing treble damages, 

states in part that the “reform is clearly needed . . . .” (Assem. Bill 218, 3d 

reading, Jan. 16, 2019 (2019-2020 Reg. Sess.) p. 2.) We discuss this author

statement post, in addressing whether the treble damages provision is

punitive. Here, it suffices to say the statement does not support retroactivity. 
23

Legislative recognition that a change is important does not mean it is 

retroactive, as we note above. (Evangelatos, supra, 44 Cal.3d at p. 1213.)

Finally, Plaintiffs argue “cover-ups were a major justification for 

retroactivity and revival,” and we should not accept that statute portions 

“addressing cover-up were prospective only.” They cite a Senate Rules 

Committee report, which states in part, “[T]he systematic incidence of 

childhood sexual assault . . . and the cover-ups that accompanied them 

arguably make both a revival period and an extended statute of limitations 

warranted.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading 

analysis of Assem. Bill 218 (2019-2020 Reg. Sess.) as amended Aug. 30, 2019, 

p. 5.) We are not persuaded. Section 340.1 has been amended repeatedly to 

reduce barriers to claims, including a prior claim revival period. (Quarry, 

supra, 53 Cal.4th at p. 955.) As we discuss post, actual damages were and 

remain available for cover-up type allegations. To the extent cover-ups were

part of the reason for further reducing such barriers in Assembly Bill 218, 

that is not an express statement that treble damages can be pursued 

retroactively.11

3. Impact of Government Code Section 818

Treble damages are available under Code of Civil Procedure section 

340.1, subdivision (b)(1), “unless prohibited by another law.” (§ 340.1, 

11 As Plaintiffs note elsewhere, a Senate Appropriations Committee 

report stated the fiscal impact would include “[u]nknown, potentially-major 

out-year costs . . . to the extent litigation is successfully brought outside the 

current statute of limitations and/or the districts are liable for treble 

damages.” (Sen. Com. on Appropriations Rep. on Assem. Bill 218 (2019-2020 

Reg. Sess.) Aug. 12, 2019.) At most, this reflects uncertainty about whether 

treble damages can be brought outside the statute of limitations, not 

retroactive intent.
24

subd. (b)(1).) We conclude Government Code section 818 precludes 

application of this provision to public school districts, joining our colleagues 

in other courts who have reached this conclusion.12

a. Applicable Law

“In tort actions, damages are normally awarded for the purpose of 

compensating the plaintiff for injury suffered . . . .” (Kizer, supra, 53 Cal.3d 

at pp. 146-147.) “When, however, the defendant’s conduct is outrageous, 

additional damages may be awarded to punish the defendant and to deter 

such conduct in the future. [Citations.] Punitive or exemplary damages ‘are 

not intended to compensate the injured party, but rather to punish the 

tortfeasor whose wrongful action was intentional or malicious . . . .’ ” (Id. at 

p. 147; see Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, fn. 13 

[“purpose of punitive damages is to punish wrongdoers and thereby deter . . . 

wrongful acts”]; Civ. Code, § 3294, subd. (a) [allowing punitive damages in 

non-contract cases where defendant is “guilty of oppression, fraud, or 

malice”].)

Government Code section 818, enacted as part of the Government Tort 

Claims Act (Gov. Code, § 810, et seq., sometimes “Tort Claims Act”), states: 

“Notwithstanding any other provision of law, a public entity is not liable for 

damages awarded under Section 3294 of the Civil Code or other damages 

12 (LAUSD, supra, 64 Cal.App.5th at pp. 553-554, 567 [granting writ 

relief to public school district, where trial court denied motion to strike treble 

damages; holding § 340.1, subd. (b) “does not have a compensatory function”; 

its “primary purpose is to punish . . . cover ups to deter future ones”; and a 

“public entity . . . is immune from these enhanced damages under [Gov. Code,

§] 818”]; X.M., supra, 68 Cal.App.5th at pp. 1019-1020 [denying student’s writ 

petition from grant of motion to strike; purpose was punitive, not 

compensatory].) 
25

imposed primarily for the sake of example and by way of punishing the 

defendant.” (See State Dept. of Corrections v. Workers’ Comp. Appeals Bd.

(1971) 5 Cal.3d 885, 891 (Dept. of Corrections) [Gov. Code, § 818 refers to 

damages “designed to punish the defendant rather than to compensate the 

plaintiff”]; Kizer, supra, 53 Cal.3d at p. 146 [Gov. Code, § 818 “was not 

intended to proscribe all punitive sanctions,” but to limit “exposure to . . . 

actual compensatory damages in tort cases”].)

b. Statutory Language

Section 340.1, subdivision (b)(1), states in pertinent part that a plaintiff 

who proves a childhood sexual assault “was . . . the result of a cover up” may 

“recover up to treble damages . . . unless prohibited by another law.” It does 

not address the purpose of the treble damages. 

Plaintiffs contend that “[b]y linking . . . treble damages to a showing of 

causation, the Legislature made clear that [they] are intended to compensate 

the victim of cover-up.” The District argues the provision’s plain meaning is 

that one may recover up to treble damages, unless “some other law” bars 

them; Government Code section 818 is “the other law”; and the provision 

“does not apply to public entities because [it] is meant to punish . . . .” 

We conclude the statutory text supports the District’s view that the 

treble damages provision is punitive, not compensatory, and Plaintiffs’ focus 

on causation is misplaced. We further conclude the text reasonably 

encompasses Government Code section 818 as “another law,” and bars treble 

damages against the District. 

First, the text reflects a primarily punitive purpose. Section 340.1, 

subdivision (a), gives a plaintiff additional time to pursue a tort action for 

“damages suffered as a result of childhood sexual assault.” This could 

include damages due to a plaintiff’s awareness that the assault resulted from 
26

a prior cover-up. Treble damages under subdivision (b), like punitive 

damages, are “by definition in addition to actual damages and beyond the 

equivalent of harm done.” (Dept. of Corrections, supra, 5 Cal.3d at p. 891.) 

Further, as with punitive damages, a plaintiff must prove additional 

culpability by defendant (i.e., the prior cover-up), and the jury has discretion 

over whether and how much to award. (Cf. Marron v. Superior Court (2003) 

108 Cal.App.4th 1049, 1059 [“In determining compensatory damages, ‘[a] 

jury’s assessment of the extent of a plaintiff’s injury is essentially a factual 

determination, whereas its imposition of punitive damages is an expression of 

its moral condemnation.’ ” (Italics omitted)].) 

Plaintiffs’ position lacks merit. Focusing on what they characterize as

causation, they find it significant that only subsequent victims can seek

treble damages, not one whose assault was covered up. In turn, they argue 

the conduct of a defendant that covers up assault “is exactly the same 

whether the abuser reoffends or not,” and if treble damages were “intended 

solely to punish . . . , treble damages would be available whether or not the 

perpetrator re-offends.” We disagree. The Legislature could reasonably 

distinguish between the culpability of Defendant A that covers up one 

assault, and Defendant B, whose cover-up results in further assaults. For 

example, Defendant A could take other measures to protect children, thus 

avoiding another assault, while Defendant B allows an environment to 

persist in which the perpetrator assaults others. 

Second, the only reasonable interpretation of “unless prohibited by 

another law” is that it refers to laws that limit enhanced damages, like 

Government Code section 818. Although Government Code section 818 may 

not be the only such exception to the treble damages provision, it is an

exception. Plaintiffs question whether “another law” refers to Government 
27

Code section 818, noting the Legislature could have identified it by name, but

they do not offer an alternative explanation for what law or laws it does refer 

to. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 

1118 [“ ‘ “Courts should give meaning to every word of a statute if possible, 

and should avoid a construction making any word surplusage.” ’ ”].) 

Plaintiffs maintain that even if the treble damages provision has “some 

punitive aspect,” it remains compensatory and Government Code section 818 

does not apply, citing the legislative history and case law from other contexts. 

We address and reject these arguments in turn.

c. Legislative History

Plaintiffs do not establish the legislative history reflects clear intent for 

treble damages to serve a compensatory purpose or to apply to public entities.

First, Plaintiffs cite a Senate Judiciary Committee report comment that 

states, in part, that “the victim’s assault must result from a prior cover up of 

childhood sexual assault.” (Sen. Com. on Judiciary, Rep. on Assem. Bill 218 

(2019-2020 Reg. Sess.), Jul. 2, 2019, p. 11.) The report is silent as to the 

purpose of treble damages, and Plaintiffs’ causation argument for a 

compensatory purpose lacks merit, as discussed above. 

Second, Plaintiffs direct us to an excerpt from the bill author statement

noted above: 

“[Assembly Bill] 218 would also confront the pervasive 

problem of cover ups in institutions, from schools to sports 

league[s], which result in continuing victimization and the 

sexual assault of additional children. The bill would allow 

for recovery of up to treble damages from the defendant 

who covered up sexual assault. This reform is clearly 

needed both to compensate victims who never should have 

been victims—and would not have been if past sexual 

assault had been properly brought to light—and also as an 

effective deterrent against individuals and entities who 
28

have chosen to protect the perpetrators of sexual assault 

over the victims.”

The author statement does not establish a compensatory purpose. The 

statement does not identify the injury for which compensation is needed, and 

the language suggests a punitive motive. (LAUSD, supra, 64 Cal.App.5th at 

p. 560; see also Sen. Com. on Judiciary, Background Information Sheet for 

Assem. Bill 218, May 11, 2019 [bill would “increas[e] . . . damages a victim 

may recover from those who sought to cover up the abuse in order to deter 

bad actors”].) As noted, plaintiffs can already recover all of their actual 

damages. (See X.M., supra, 68 Cal.App.5th at p. 1027 [no legislative history 

materials identified injuries that “treble damages are needed to compensate 

that actual damages do not already cover”].) And, even if the Legislature did 

intend treble damages to aid in compensation for cases involving cover-ups, it 

still does not follow that treble damages were not primarily punitive. 

Third, Plaintiffs cite statements that purportedly show the Legislature 

intended to subject all defendants to treble damages. They start with a 

statement in an early Assembly report, repeated elsewhere, that “[t]his bill 

applies equally to abuse occurring at public and private schools and applies to 

all local public entities.” (Assem. Bill 218, 3d reading, Jan. 16, 2019 (2019-

2020 Reg. Sess.) p. 2.) Parts of Assembly Bill 218 apply to public entities, but 

that does not mean the treble damages provision does. Indeed, the 

Legislative Counsel’s Digest in the enacted bill states the bill provides for 

“treble damages against certain defendants,” and does not limit that 

qualification to defendants who engaged in prior cover-ups. (Italics added.)

Plaintiffs also cite the Senate Appropriations Committee report comment, 

noted above, that there could be costs to school districts “to the extent 

litigation is successfully brought outside the current statute of limitations 
29

and/or the districts are liable for treble damages.” As we explained, this text 

reflects, at most, uncertainty as to public entity damages, not clear intent.

Plaintiffs make a related policy argument, contending “there is no basis 

in logic or law to impose a lesser standard on public schools . . . .” We 

question this characterization, as all schools remain liable for actual 

damages, and reject the point regardless. Courts have long recognized there 

is little justification for imposing enhanced damages on public entities, 

including public schools. (See McAllister v. South Coast Air Quality Etc. Dist. 

(1986) 183 Cal.App.3d 653, 660 [deterrence aspect of punitive damages has

“ ‘little justification’ ” for public entities; “officials will do their duty,”

employees will be disciplined as needed, and employees would not be deterred 

by award against entity]; Wells v. One2One Learning Foundation (2006) 39 

Cal.4th 1164, 1196, fn. 20 (Wells) [even if California False Claims Act’s 

(CFCA) “treble-damage provisions are not strictly, or even primarily, 

‘punitive,’ ” the “purpose behind the statutory ban on punitive damages 

against public entities—to protect their tax-funded revenues from legal 

judgments in amounts beyond those strictly necessary to recompense the 

injured party—applies equally here”]; see Visalia Unified School Dist. v. 

Superior Ct. (2019) 43 Cal.App.5th 563, 570 [punitive damages against public 

entities “ ‘punish the very group’ ” they are “ ‘intended to benefit’—the 

taxpaying members of the general public.”].)

Finally, Plaintiffs argue that even after the phrase “unless prohibited 

by another law” was added to section 340.1, subdivision (b), various groups

and persons, including “public and private school officials,” still requested the 

bill “be amended to eliminate . . . treble damages.” They cite an Assembly 

report from March 2019, but other bill history materials reflect the language 

was added later. (See Assem. Bill 218 text, as amended in Senate on Aug. 30, 
30

2019; Sen. Comm. on Appropriations, analysis of Assem. Bill 218 (2019-2020 

Reg. Sess.) Aug. 30, 2019.) Regardless, the opposing groups’ concerns were 

described in substantially similar terms in multiple reports over time, and 

there is no indication the description was reviewed when the “another law” 

language was added, such that we should ascribe significance to any lack of 

modification. Lastly, private groups would still have reason to oppose treble 

damages, after addition of language referencing Government Code section 

818, and the views of outside entities do not reflect legislative intent, 

regardless. (Cf. Pendleton, supra, 24 Cal.4th at p. 47, fn. 6.) 

d. Case Law From Other Contexts

Plaintiffs also rely on case law from other contexts to contend the treble 

damages provision is compensatory or otherwise is not subject to Government 

Code section 818, including civil penalties, workers’ compensation, rent 

control, and federal statutes. None of these authorities convince us to reach a 

different conclusion.

First, Plaintiffs contend “ ‘the immunity . . . under section 818 is 

narrow, extending only to damages whose purpose is simply and solely 

punitive,’ ” citing a civil penalties case, Los Angeles County Metropolitan 

Transp. Authority v. Superior Court (2004) 123 Cal.App.4th 261, 275 

(LACMTA), and two earlier civil penalty precedents, People ex rel. Younger v. 

Superior Court (1976) 16 Cal.3d 30 (Younger) and Kizer, supra, 53 Cal.3d 

139. They also cite Younger and Kizer to contend “statutory schemes with 

obvious punitive elements are nonetheless permissible despite Government 

Code [section] 818 if they advance any legitimate non-punitive interest.” 

Civil penalties entail different considerations than enhanced tort damages, 

and these cases are otherwise distinguishable. 
31

In Younger, the California Supreme Court held Government Code 

section 818 did not immunize the Port of San Francisco from civil penalties 

for oil spills under the Water Code. (Younger, supra, 16 Cal.3d at pp. 34-35.) 

The Court held the penalties were not “simply and solely punitive in nature, 

but fulfill legitimate compensatory functions.” (Id. at p. 39.) The Court 

explained much of the oil spill harm was “unquantifiable” and “cannot be 

recovered in an action for actual damage,” and that collected sums were used 

for pollution abatement. (Id. at p. 39 and fn. 6.) 

Then, in Kizer, the Court held civil penalties could be imposed on a 

county long-term care facility under the Health and Safety Code. (Kizer, 

supra, 53 Cal.3d at p. 141.) Focusing on the Tort Claims Act, the Court first 

held that nothing therein suggested Government Code section 818 “was 

intended to apply to statutory civil penalties designed to ensure compliance 

with a detailed regulatory scheme . . . even though they may have a punitive 

effect.” (Kizer, at p. 146; id. at pp. 147-148 [“primary purpose” of penalties is 

“to secure obedience . . . to assure important public policy objectives”].) The 

Court also determined the statutory scheme did not “suggest[ ] . . . 

government health facilities should be treated differently than private 

facilities,” and disagreed with the county that another statutory provision 

could provide a fully compensatory remedy. (Id. at pp. 148, 150.)

Lastly, in LACMTA, the Court of Appeal held a public transit authority 

was subject to a civil penalty under Civil Code section 52, subdivision (b)(2). 

(LACMTA, supra, 123 Cal.App.4th at p. 276.) The court noted “fundamental 

differences” between civil penalties and punitive damages, including that 

penalties are mandatory and do not require the plaintiff suffer actual 

damages. (Ibid.) The court also noted the penalty there “appear[ed] designed 
32

to ensure that the plaintiff will receive at least a minimum amount of 

compensation,” even with “little or no actual damages . . . .” (Ibid.)

These cases do not aid Plaintiffs. Plaintiffs seek enhanced damages in 

a tort action for childhood sexual assault, not application of civil penalties in 

a complex regulatory scheme. There is no need to provide minimum 

compensation or incentivize lawsuits, as assault damages are quantifiable

(and may be considerable), plaintiffs are already entitled to receive such 

damages, and, indeed, Plaintiffs have done so here. (See, e.g., J.P. v. 

Carlsbad Unified School District (2014) 232 Cal.App.4th 323, 332 [district 

owed at least $1.8 million to plaintiffs, even after apportionment].)13 As for 

the “simply and solely punitive” phrasing, we view that as a way of applying 

the “primarily punitive” requirement of Government Code section 818 in the 

civil penalties context—not a de facto elimination of the word “primarily.” 

(See Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 

Cal.4th 1029, 1039 [“ ‘[a]n interpretation that renders statutory language a 

nullity is obviously to be avoided.’ ”].)

Second, Plaintiffs contend a “strong analogy” can be made between the 

damage multiplier in Department of Corrections, a workers’ compensation 

case, and the treble damages provision here. We disagree. There, the 

California Supreme Court held Government Code section 818 did not apply to 

a statute that increased a workers’ compensation award by 50 percent for

injuries resulting “from the serious and willful misconduct of the employer.” 

(Dept. of Corrections, supra, 5 Cal.3d at pp. 887, 891.) The Court explained 

the purpose of ordinary workers’ compensation “was not . . . to be full . . .

13 We deny the District’s request for judicial notice of substantial damage 

awards in two recent cases, as they are not necessary to our analysis.
33

compensation,” but, rather, to transfer “part of the [employee’s] burden” to 

“the employer . . . .” (Id. at p. 889.) Thus, the “increased award [was] not a 

penalty in the sense of being designed primarily to punish the defendant 

rather than to more adequately compensate the plaintiff.” (Id. at p. 890.) In 

contrast, any plaintiff suing for childhood sexual assault is entitled to recover 

actual damages, and enhanced damages are in excess of those actual

damages. We reject Plaintiffs’ claim that childhood sexual assault victims

are not fully compensated, because respondeat superior limits employer 

liability, the employee is often judgment proof, and juries apportion some 

liability to the employee. A plaintiff’s decision not to pursue recovery from 

the employee does not mean they are able to receive “only partial 

compensation.” 

Third, Plaintiffs contend courts have found treble damages multipliers 

are not always punitive, citing a rent control case, Beeman v. Burling (1990) 

216 Cal.App.3d 1586, and two federal cases, PacifiCare Health Sys., Inc. v. 

Book (2003) 538 U.S. 401 (Book) and Cook County v. United States ex rel 

Chandler (2003) 538 U.S. 119. These cases do not help Plaintiffs, either. In 

Beeman, the Court of Appeal disagreed a rent control ordinance improperly

required “not less than three times actual damages” for wrongful eviction. 

(Beeman, at p. 1597.) It distinguished statutory from punitive damages, 

explaining the former may take the form of penalties or a damages 

multiplier, but are “set by a legislative body,” while the latter are “entrusted 

to the factfinder.” (Id. at pp. 1597-1598.) Here, the treble damages provision 

is permissive and applied by the factfinder. As for Book and Cook, the United 

States Supreme Court recognized treble damages can have remedial goals, 

but in the context of complex federal laws that have no bearing on the 

California statutes before us. (Book, supra, 538 U.S. at pp. 405-406 [whether 
34

arbitration agreement ban on punitive damages covered RICO treble 

damages was issue for arbitrator; noting treble damages were on a 

“spectrum” and those in RICO were “remedial in nature”]; ibid. [treble 

damages under Clayton Act (antitrust) were remedial]; Cook, supra, 538 U.S. 

at p. 130 [amendment authorizing treble damages in federal False Claims 

Act, while “essentially punitive,” had “compensatory traits”].) 

Finally, the District argues the enhanced damages provision in Civil 

Code section 52, subdivision (a), which applies to laws including the Unruh 

Act and permits up to treble damages, is analogous to Assembly Bill 218 

treble damages and courts have held it to be punitive.14 The District cites, 

inter alia, Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 

1171, superseded by statute on other grounds in Munson v. Del Taco, Inc.

(2009) 46 Cal.4th 661 (Munson) and Archibald v. County of San Bernardino

(C.D. Cal., May 10, 2018) 2018 WL 8949779. Plaintiffs dispute the relevance 

of these authorities. To the extent they offer guidance, they are consistent 

with our conclusion that Government Code section 818 precludes treble 

damages here. In Harris, the California Supreme Court held the Unruh Act 

did not prevent a landlord’s minimum income policy, in part because the act

barred only intentional gender discrimination. (Harris, at pp. 1148-1149.) 

The Court noted “the damages provision allowing for an exemplary award . . .

reveals a desire to punish . . . .” (Id. at p. 1172.) In Archibald, a district court 

denied treble damages against a county under Civil Code section 52, 

subdivision (a), citing Harris and Government Code section 818. (Archibald, 

14 See Civil Code, section 52, subd. (a) (defendant is “liable for each and 

every offense for the actual damages, and any amount that may be 

determined by a jury, or a court sitting without a jury, up to a maximum of 

three times the amount of actual damage but in no case less than four 

thousand dollars ($4,000).”)
35

at *1-*2.) The court explained other courts had relied on Harris to find these

damages were punitive and “unavailable against a public entity,” and

observed they bore “some . . . hallmarks of punitive damages.” (Id. at *4; 

ibid. [noting Harris language was dicta, considering if there was a nonpunitive purpose there, and concluding there was not].) The treble damages 

here likewise are primarily intended to punish, resemble punitive damages, 

and lack a compensatory purpose. 

4. Plaintiffs Do Not Establish Reversal Is Warranted

Finally, Plaintiffs contend a retrial is warranted when a statutory 

amendment “requires a new finding of fact.” This argument rests on their 

position that they can pursue treble damages, which we have rejected. 

C. Sexual Harassment Claim

Plaintiffs contend the trial court erred by granting the District’s 

demurrers to their sexual harassment claims, asserting the District is a 

“person” subject to Civil Code section 51.9 and they adequately stated a claim 

for relief under Civil Code sections 51.9 and 52. We reject these arguments 

and conclude the trial court properly granted the demurrers. 

1. Additional Facts

As noted, each Plaintiff asserted a claim for sexual harassment under 

Civil Code section 51.9; the District demurred, including on the grounds that 

it was not subject to liability; and the trial court sustained the demurrers

without leave to amend. 

The trial court stated that under Civil Code section 51.9, “the term 

‘person’ does not strictly apply to the individual perpetrator.” The court 

acknowledged C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094 

(Tenet) held a private hospital employer could be liable under Civil Code 

section 51.9 for sexual harassment, but explained this did not apply to public 
36

entities: “[T]he district cannot be held liable for the actions of a teacher 

because [Civil Code] section 51.9, as currently written, does not explicitly 

create liability for a public entity. . . . [W]ithout a statutory basis to hold the 

district directly liable for sexual harassment, the Government Claims Act 

immunizes the district.” The court then addressed the public policy and cost 

implications of imposing vicarious liability for sexual misconduct by teachers, 

citing John R. v. Oakland Unified School District (1989) 48 Cal.3d 438

(John R.), and concluded it was persuaded government entities were not 

liable on that basis. 

2. Applicable Law

Civil Code section 51.9 provides a cause of action for sexual harassment 

against a “person” who is in a “business, service, or professional relationship” 

with the plaintiff. (Civ. Code, § 51.9, subd. (a)(1).) The statute identifies a 

nonexclusive list of persons with whom a relationship may exist, including 

physicians, landlords, and teachers. (Id. at subd. (a)(1)(A)-(I).) Damages are 

“awarded as provided by subdivision (b) of [Civil Code] Section 52.” (Civ. 

Code, § 51.9, subd. (b).) 

Civil Code section 52, subdivision (b) states: “Whoever denies the right 

provided by [Civil Code] Section 51.7 or 51.9, or aids, incites, or conspires in 

that denial, is liable for each and every offense for the actual damages 

suffered by any person denied that right,” as well as “exemplary damages,”

“attorney’s fees as may be determined by the court,” and, for Civil Code 

section 51.7, a civil penalty. 

“We review a ruling sustaining a demurrer de novo, exercising 

independent judgment as to whether the complaint states a cause of action as 

a matter of law. [Citation.] ‘We affirm the judgment if it is correct on any 

ground stated in the demurrer, regardless of the trial court’s stated reasons.’ 
37

[Citation.] Further, ‘ “[i]f another proper ground for sustaining the demurrer 

exists, this court will still affirm the demurrer.” ’ ” (Abatti v. Imperial 

Irrigation District (2020) 52 Cal.App.5th 236, 294 (Abatti).)

“When a demurrer is sustained without leave to amend, ‘we decide 

whether there is a reasonable possibility that the defect can be cured by 

amendment: if it can be, the trial court has abused its discretion and we 

reverse; if not, there has been no abuse of discretion and we affirm. 

[Citations.] The burden of proving such reasonable possibility is squarely on 

the plaintiff.’ ” (Abatti, supra, 52 Cal.App.5th at pp. 294-295, citing Blank v. 

Kirwan (1985) 39 Cal.3d 311, 318.)

3. Whether Public Entity Is A “Person” Under Civil Code 

Section 51.9

We begin with the central issue here: whether a public school district 

is a “person” under Civil Code section 51.9. We conclude that it is not. 

a. Statutory Language

Civil Code section 51.9 applies to a “person” in a professional 

relationship with the plaintiff. (Civ. Code, § 51.9, subd. (a)(1).) Although 

Civil Code section 14 states “the word person includes a corporation as well 

as a natural person,” it does not state the word includes government entities. 

Plaintiffs maintain the District is a “public corporation,” and thus a person 

for purposes of Civil Code sections 14 and 51.9. They further argue entities 

are subject to liability as persons under other authorities, and government 

liability is limited only when it infringes on sovereign power. These 

arguments lack merit.

First, Plaintiffs do not establish the District is a person under Civil 

Code section 14. “A public school district is a political subdivision of the 

State of California.” (Sheppard v. North Orange County Regional 

Occupational Program (2010) 191 Cal.App.4th 289, 301; Butt v. State of 
38

California (1992) 4 Cal.4th 668, 680-681 [“ ‘Local districts are the State’s 

agents for local operation of the common school system’ ”].) To the extent a 

school district is characterized as a public corporation, the word “corporation” 

in that term does not mean it is a “corporation” within the meaning of Civil 

Code section 14, much less Civil Code section 51.9. (Cf. Delano Farms Co. v. 

California Table Grape Com. (2018) 4 Cal.5th 1204, 1238 [“Many such 

[public] corporations, such as school districts [citation], fulfill quintessentially 

governmental functions”].) Plaintiffs’ reliance on the charter school holding 

in Wells, supra, 39 Cal.4th 1164, is misplaced. Wells did determine a charter 

school was a “person” subject to the CFCA, but held public school districts are

not liable under that law. (Id. at p. 1200 [charter school was a “person” 

because CFCA statute did not exempt “ ‘corporations’ organized under the 

Nonprofit Public Benefit Corporation Law” and certain other laws]; id. at 

p. 1179 [public school districts are not “persons” under the CFCA]; see also, 

e.g., Gateway Community Charters v. Spiess (2017) 9 Cal.App.5th 499, 507 

[charter school, unlike public school district, was not “other municipal 

corporation” exempt from Labor Code provision at issue].) 

Second, Plaintiffs rely on other inapposite authorities to argue for a 

broad interpretation of “person” under Civil Code section 51.9. Hassan v. 

Mercy American River Hospital (2003) 31 Cal.4th 709 held noncorporate 

entities were persons for purposes of a medical reporting privilege in Civil 

Code section 43.8, noting in part that the term “including” in Civil Code 

section 14 was expansive. Hassan relied on City of Pasadena v. Stimson

(1891) 91 Cal.238, 248, which held a statute permitting persons to acquire 

property for a sewer by condemnation applied to corporations. (Stimson, at 

pp. 245-246.) These cases involve dramatically different contexts and offer no 

guidance on the meaning of “person” here. (See State ex rel Harris v.
39

PriceWaterhouseCoopers, LLP (2006) 39 Cal.4th 1220, 1232 [rejecting 

reliance on Stimson, in companion case to Wells; “there are numerous 

indications in the language, structure, and history of the CFCA that the 

Legislature did not intend this particular statute to include public entities as 

‘persons’ ”]; People v. Kareem A. (2020) 46 Cal.App.5th 58, 70-75 [noting use 

of term “include” in Code of Civil Procedure section permitting imposition of 

sanctions, but relying on legislative purpose and history to conclude agency 

was subject to them].) Nor does the inclusion of “teacher” in the list of

individuals subject to Civil Code section 51.9 compel a broad interpretation

here. (Civ. Code, § 51.9, subd. (a)(1)(E).) Teachers may have private or 

public employers, and, regardless, imposing liability on a teacher does not 

pose the same concerns as imposing it on a public school district. 

Third, Plaintiffs argue “person” should not be interpreted to exclude 

government entities unless liability would infringe their sovereign powers, 

citing Flournoy v. State (1962) 57 Cal.2d 497 and other older cases. But, as 

the California Supreme Court explained in Wells, “[T]he premise that public 

entities are statutory ‘persons’ unless their sovereign powers would be 

infringed is simply a maxim of statutory construction. While the ‘sovereign 

powers’ principle can help resolve an unclear legislative intent, it cannot 

override positive indicia of a contrary legislative intent.” (Wells, supra, 39 

Cal.4th at pp. 1192-1193 [both indicia of legislative intent and fiscal impact 

foreclosed public school liability under CFCA].) As we explain next, Plaintiffs 

do not establish Civil Code section 51.9 was intended to apply to public school

districts, or that it would not impede their functions, and thus do not show

the sovereign power principle should apply. 
40

b. Statutory Purpose 

Plaintiffs contend that imposing liability under Civil Code section 51.9

on public school districts would effectuate, not impede, their functions, which 

include preventing harassment. They relatedly contend liability would serve 

the state’s interest in compensating victims and encourage them to come 

forward, and, otherwise, there is “no incentive to correct ongoing sexual 

harassment.” These contentions lack merit.

First, there is no question that public school districts must provide a 

harassment-free environment for students. (See Ed. Code, § 220 [barring 

discrimination in schools receiving state funding]; id., § 230 [prohibited 

practices include harassment on the basis of sex]; id., § 231.5 [requiring 

“notification of the prohibition against sexual harassment” and “available 

remedies”]; Donovan v. Poway Unified Sch. Dist. (2008) 167 Cal.App.4th 567, 

579 (Donovan) [addressing peer sexual orientation harassment claim under 

Ed. Code, § 220].) But statutory interpretation requires us to consider this

statute’s purpose. Plaintiffs do not establish Civil Code section 51.9 was 

intended to encourage school districts to curtail harassment, or necessary to 

do so. Tenet, which involved a private hospital, noted the enacting bill for 

Civil Code section 51.9 indicated its purpose was to expand liability in 

recognition that “ ‘sexual harassment occurs not only in the workplace, but in 

relationships between providers of professional services and their clients.’ ” 

(Tenet, supra, 169 Cal.App.4th at p. 1105 [discussing Sen. Bill 612; Stats. 

1994, uncodified § 1]; cf. Wells, supra, 39 Cal.4th at p. 1191 [addressing 

CFCA; legislative history “suggests there was no intent to include school 

districts and other public and governmental agencies”].) 

Further, there are other laws and legal theories besides Civil Code 

section 51.9 that encourage harassment victims to come forward, and let 
41

them obtain compensation when they do, including the Education Code. 

(Ed. Code, §§ 220, 231.5; Donovan, supra, 167 Cal.App.4th at p. 579; see 

C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 (C.A.)

[“public school district may be vicariously liable under [Gov. Code, §] 815.2 

for the negligence of administrators or supervisors in hiring, supervising and 

retaining a school employee who sexually harasses and abuses a student”].) 

Second, Plaintiffs also do not establish that applying Civil Code section 

51.9 to public school districts would have no effect on their functioning. 

Wells, which addressed the fiscal impact of the CFCA, is instructive. (Wells, 

supra, 39 Cal.4th at p. 1193.) The Court explained, in part:

“School districts must use the limited funds at their 

disposal to carry out the state’s constitutionally mandated 

duty to provide a system of public education. . . . [¶] 

[T]here can be no doubt that public education is among the 

state’s most basic sovereign powers. Laws that divert 

limited educational funds from this core function are an 

obvious interference with the effective exercise of that 

power.”

(Wells, supra, 39 Cal.4th at p. 1195; ibid. [“The Legislature is aware of the 

stringent revenue, budget, and appropriations limitations affecting all 

agencies of government—and public school districts in particular”]; id. at 

pp. 1196-1197 [Legislature “did not intend to subject financially constrained 

school districts . . . to the treble-damages-plus-penalties provisions of the 

CFCA”].) For similar reasons, we will not presume the Legislature intended 

to subject public school districts to Civil Code section 51.9 by implication.

Plaintiffs’ attempt to distinguish Wells is unpersuasive. They argue

Civil Code section 51.9 imposes only actual damages and attorney fees

(acknowledging exemplary damages under Civ. Code, § 52, subd. (b)(1) are 

limited by Gov. Code, § 818), whereas the CFCA has “draconian liabilities,” 
42

including double or treble damages, civil penalties, and attorney fees and 

costs. They then reason that “[g]iven Wells’ pronouncement that an 

obligation to pay damages does not infringe on sovereign powers,” we should 

focus only on fees and “fees are already available against school districts in 

sexual harassment cases under Title IX and Section 1021.5.” Wells

recognized that “where liability otherwise exists, public entities must pay 

legal judgments,” but did not state damages are not impactful. (Wells, supra, 

39 Cal.4th at p. 1196, italics added.) And fees compound that impact, even if 

overall exposure is not as high as under the CFCA. Plaintiffs also contend 

the “ ‘ “ultimate purpose of the [CFCA] is to protect the public fisc,” ’ ” citing 

Wells, at page 1196. The California Supreme Court has recognized fiscal 

impact on schools as a concern in other contexts, as well, not just under the 

CFCA. (See, e.g., John R., supra, 48 Cal.3d at p. 451 [addressing vicarious 

liability for teacher sexual misconduct].)

Finally, the District directed us in its briefing to Brennon B. v. Superior 

Court (2020) 57 Cal.App.5th 367, 369, which held the Unruh Act does not 

apply to public school districts. After briefing concluded, the California 

Supreme Court affirmed the Court of Appeal, holding in relevant part, “The 

statutory text of the [Unruh] Act, its purpose and history, and our prior 

caselaw all indicate that public schools, as governmental entities engaged in 

the provision of a free and public education, are not ‘business establishments’ 

within the meaning of the Act. (Civ. Code, § 51, subd. (b).)” (Brennon B. v. 

Superior Court (2022) 13 Cal.5th 662, 669 (Brennon B.).) The parties 

addressed the decision at oral argument, and Plaintiffs maintain it is not 

applicable here.

We conclude that although Brennon B. involves the Unruh Act, not 

section 51.9, the Court’s analysis is instructive, and consistent with our 
43

conclusion that Civil Code section 51.9 does not apply to public school 

districts. Pertinent here, the Court noted the district’s reliance on Wells, 

supra, 39 Cal.4th 1164, to argue that “subjecting public school districts to 

financial liabilities does not come without significant drawbacks and doing so 

could impede the ability of local governments (and the state) to provide free 

public education.” (Brennon B., supra, 13 Cal.5th at p. 695; id. at p. 696

[citing Wells, at pp. 1195-1196 [legislature is “aware of stringent revenue, 

budget, and appropriations limitations” on public school districts].) The 

Court also noted school districts “remain subject to other antidiscrimination 

laws.” (Brennon B. at p. 695.) Significantly, the Court recognized “those laws 

may not afford the same remedies” as the Unruh Act, but “ ‘that circumstance 

cannot justify extending the scope of the [Unruh Act] further than its 

language reasonably will bear.’ ” (Id. at pp. 695-696.) Here, too, Civil Code 

section 51.9 does not extend to situations unsupported by the statute’s text 

and purpose. 

4. Plaintiffs’ Liability Theories

Plaintiffs maintain the District’s “liability is clear under three distinct 

avenues”: it is (1) “statutorily liable for its supervisory employees’ failure to 

address and correct Chatham’s sexual harassment,” citing Government Code 

sections 815.2 and 820 and C.A., supra, 53 Cal.4th 861; (2) “responsible for 

ratifying Chatham’s misconduct,” citing Tenet, supra, 169 Cal.App.4th 1094, 

and (3) “liable for its employees’ actions in denying, or aiding, conspiring or 

inciting the denial of Plaintiffs’ rights under section 51.9,” citing Civil Code 

section 52 and asserting it “contains its own source of liability.” 

None of these arguments support the relief Plaintiffs seek to pursue—

liability under Civil Code section 51.9 and attorney fees under section 52. 
44

a. Vicarious Liability 

First, Plaintiffs contend Government Code sections 815.2 and 820 

“impose[ ] upon public entities vicarious liability for the tortious acts and 

omissions of their administrative or supervisory personnel,” citing C.A., 

supra, 53 Cal.4th 861. This argument does not support liability under Civil 

Code section 51.9 or remedies under Civil Code section 52.

Government Code section 815, part of the Tort Claims Act, “establishes 

that public entity tort liability is exclusively statutory.” (C.A., supra, 53 

Cal.4th at p. 868.) “ ‘[T]he general rule is that an employee of a public entity 

is liable for his torts to the same extent as a private person ([Gov. Code,] 

§ 820, subd. (a)) and the public entity is vicariously liable for any injury 

which its employee causes ([Gov. Code,] § 815.2, subd. (a)) to the same extent 

as a private employer ([Gov. Code,] § 815, subd. (b)).’ ” (C.A., at p. 868.)

In C.A., the plaintiff sued his public school district and guidance 

counselor based on alleged sexual harassment and abuse by the counselor, 

the Court of Appeal affirmed the district’s dismissal following demurrer, and 

the California Supreme Court reversed. (C.A., supra, 53 Cal.4th at p. 865.) 

The Court held allegations that the “administrators and employees knew or 

should have known of [the counselor’s] dangerous propensities, but 

nevertheless hired, retained and failed to properly supervise her” could 

“make the District liable under a vicarious liability theory encompassed by 

[Government Code] section 815.2.” (Id. at p. 875.) But C.A. did not address 

Civil Code section 51.9, and does not support public school district liability 

under it. (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343 [“A decision, 

of course, does not stand for a proposition not considered by the court”].) The 

Court also recognized diversion of school funds remained a valid concern. 

(C.A., at p. 878 [concerns over vicarious liability for teacher sexual 
45

misconduct noted in John R., supra, 48 Cal.3d at p. 451, including “ ‘the 

diversion of needed funds . . . to cover claims,’ ” were “still valid”].) The other 

authorities cited by Plaintiffs do not address Civil Code section 51.9, either. 

(See Nicole M. v. Martinez Unified Sch. Dist. (N.D. Cal. 1997) 964 F.Supp. 

1369, 1388-1389 (Nicole M.) [school administrators could be sued under 

Unruh Act for failing to remedy peer sexual harassment]; Ed. Code, §§ 220, 

230.)

b. Ratification 

Next, Plaintiffs contend “[p]rinciples of ratification apply to a [Civil 

Code] section 51.9 cause of action,” citing Tenet, supra, 169 Cal.App.4th at 

page 1111. They further contend these “principles also apply against public 

entities,” citing City of Los Angeles v. Superior Court (1973) 33 Cal.App.3d 

778, 782-783 (City of Los Angeles). These contentions lack merit. 

Although Tenet did conclude plaintiffs could proceed on a ratification 

theory under Civil Code section 51.9, the case involved a private employer, as 

Plaintiffs impliedly acknowledge. (Tenet, supra, 169 Cal.App.4th at p. 1097, 

1099-1100 [reversing order sustaining private hospital’s demurrer to putative 

class action without leave to amend, in action claiming sexual molestation by 

certified nursing assistant; hospital allegedly destroyed records to conceal 

abuse and hid information so employee could keep working].) Thus, we also

reject Plaintiffs’ claim that the trial court lacked “any substantive 

explanation for failing to apply” the Tenet case. 

City of Los Angeles did involve a public entity defendant, but did not 

address Civil Code section 51.9 or ratification. There, a city sought writ relief 

from a discovery order in a civil suit alleging police battery. (City of Los 

Angeles, supra, 33 Cal.App.3d at pp. 780-782.) The Court of Appeal denied 

relief in part, noting the city could be liable for “willfully continuing to 
46

employ an individual of known violent propensities” and “negligent failure to 

adequately supervise its employees.” (Id. at pp. 782-784.) At most, the case 

stands for the proposition that a plaintiff can pursue negligent retention and 

supervision theories against public entities. Baptist v. Robinson (2006) 143 

Cal.App.4th 151, also cited by Plaintiffs here, did not involve Civil Code 

section 51.9 or a public entity, and is inapposite. (Id. at p. 169 [although 

“failure to discharge an employee who has committed misconduct may be 

evidence of ratification,” winery did not ratify conduct of driver who injured 

motorcyclist while transporting grapes for his own use].)15

c. Civil Code section 52

Finally, Plaintiffs contend Civil Code section 52, subdivision (b) 

“contains its own source of liability for anyone who affirmatively ‘denies’, or 

who ‘aids, incites, or conspires in’ the denial of, rights attendant to sexual 

harassment.” This contention lacks merit, too.

We begin with the statutory text, which states: “Whoever denies the 

right provided by [Civil Code] Section 51.7 or 51.9, or aids, incites, or 

conspires in that denial, is liable” for identified remedies. (Civ. Code, § 52, 

subd. (b).) Plaintiffs suggest the term “[w]hoever” is sufficient to impose 

liability, whether or not there is liability under Civil Code section 51.9. But 

we may not view statutory language “in isolation.” (Monterey, supra, 62 

Cal.4th at p. 699; Pineda, supra, 51 Cal.4th at pp. 530-531 [courts construe 

statutory text “in light of the statute as a whole”].) The statute’s plain 

language requires predicate liability under Civil Code section 51.9 (or Civ.

Code, § 51.7, if applicable).

15 Plaintiffs contend the trial court improperly decided the “factual issue” 

of ratification at the pleading stage. The court determined the District could 

not be liable as a matter of law. 
47

Accordingly, the California Supreme Court has described Civil Code 

section 52 as an “ ‘enforcement mechanism for [Civil Code] section 51 and 

other provisions of law,’ ” and courts have interpreted these provisions 

consistently. (Munson, supra, 46 Cal.4th at pp. 667-668; cf., e.g., id. at p. 667 

[“[Civil Code] section 51 has always provided substantive protection against 

invidious discrimination in public accommodations, without specifying 

remedies, and [Civil Code] section 52 has always provided remedies”]; 

Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1452 [“ ‘the Ralph Act

[Civ. Code, § 51.7] and the Unruh Act . . . share the same remedy statute, 

Civ. Code, § 52’ ”]; cf. Doran v. North State Grocery, Inc. (2006) 137 

Cal.App.4th 484, 489 [“plain language” of Civ. Code, § 52, subd. (a) “makes 

clear that only those who deny rights guaranteed by [Civ. Code] section 51, 

51.5, or 51.6 are liable for attorney fees”].)

Plaintiffs identify no California authority or legislative history that

supports their view that Civil Code section 52 provides an independent 

source of liability. Their reliance on Nicole M., supra, 964 F.Supp. 1369, is

misplaced, both because we are not bound by lower federal courts (Upshaw v. 

Superior Court (2018) 22 Cal.App.5th 489, 503) and because the case is 

inapposite. There, the district court held a student could pursue claims for 

peer sexual harassment under the Unruh Act and Civil Code section 51.5

against a public school district, and the superintendent and principal, noting 

the term “[w]hoever” in the applicable section of Civil Code section 52

(subd. (a)). (Nicole M., at pp. 1371-1372, 1388-1390; see id. at p. 1388 

[“[B]ecause [Civ. Code, §] 52, subd. (a) allows plaintiffs to recover damages 

against ‘[w]hoever . . . makes any discrimination . . . contrary to [Civil Code]

Section 51 or 51.5,’ plaintiff may bring a claim against [the principal and 

superintendent] for violations of those sections.”].) Setting aside the court’s 
48

determination that the school district was subject to the Unruh Act, (which 

Brennon B. has now made clear was incorrect), the Nicole M. court’s point 

appeared to be that the plaintiff could recover from the individuals—not that 

Civil Code section 52 was its own source of liability.16 And even if Plaintiffs 

did pursue a claim under Civil Code section 52, subdivision (b) against the 

administrators for “aid[ing], incit[ing] or conspir[ing]” sexual harassment, 

they do not establish this would support liability against the District. (Cf. 

Munson, supra, 46 Cal.4th at p. 671 [noting Court has read “denies, aids or 

incites” language in Civ. Code, § 52, subd. (a), as “connoting intentional 

discrimination”]; John R., supra, 48 Cal.3d at p. 452.)

d. Ability To Amend 

Because the District is not liable under Civil Code section 51.9, and 

Plaintiffs have not shown they can recover against the District under Civil 

Code section 52, subdivision (b), they could not amend their complaints to 

permit relief under these statutes. (Abatti, supra, 52 Cal.App.5th at p. 295.)

We observe Plaintiffs do not demonstrate prejudice, regardless. They 

argue the “exclusion of sexual harassment claims” limited their ability to 

show Chatham “creat[ed] an inappropriate environment”; foreclosed a 

ratification theory that could have avoided allocation of fault; and prevented 

them from obtaining attorney fees. Even if Plaintiffs could not pursue sexual 

16 Sullivan v. Vallejo City Unified School District (E.D. Cal. 1990) 731 

F.Supp. 947, also cited by Plaintiffs, is inapposite too. (Id. at p. 952 [holding 

school districts are subject to Unruh Act, based on its legislative history; not 

addressing Civ. Code, §§ 51.9, 52].) (Cf. Brennon B., supra, 13 Cal.5th at 

p. 684 [disagreeing with Sullivan, and describing as unpersuasive the “body 

of cases that rely on [Sullivan] cursorily to conclude that public school 

districts are business establishments for purposes of the [Unruh] Act,” 

including Nicole M.)
49

harassment claims under Civil Code section 51.9, they were still able to offer

evidence that Chatham regularly acted in an inappropriate, sexualized 

manner, and prevailed on negligence claims based on this conduct. Second, 

on ratification, Plaintiffs argue “[a]llocation of noneconomic damages is not 

available in vicarious liability situations,” citing a vicarious liability case, 

Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 629-631. They do 

not establish ratification is unavailable outside the Civil Code section 51.9

context, or that ratification is equivalent to vicarious liability for allocation 

purposes. Finally, as for fees, Plaintiffs could have named Chatham as a 

defendant, enabling them to pursue both Civil Code section 51.9 claims, and 

the related attorney fees.

D. Plaintiffs Do Not Establish Evidentiary Error 

Plaintiffs assert the trial court erred by limiting evidence regarding 

Chatham’s friendship with Torres and his internet bookmarks, and by

purportedly excluding testimony by a therapist and football coach. They do 

not establish any prejudicial abuse of discretion. 

1. Applicable Law

“ ‘A trial court’s exercise of discretion in admitting or excluding 

evidence is reviewable for abuse [citation] and will not be disturbed except on 

a showing the trial court exercised its discretion in an arbitrary, capricious, 

or patently absurd manner that resulted in a manifest miscarriage of 

justice.’ ” (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) It is the 

appellant’s “ ‘burden to establish such an abuse, which we will find only if the 

trial court’s order exceeds the bounds of reason.’ ” (Serri v. Santa Clara 

University (2014) 226 Cal.App.4th 830, 852.) An “ ‘erroneous evidentiary 

ruling requires reversal only if “there is a reasonable probability that a result 

more favorable to the appealing party would have been reached in the 
50

absence of the error.” ’ ” (Id. at p. 857; Cassim v. Allstate Ins. Co. (2004) 33 

Cal.4th 780, 800 (Cassim) [probability here means “ ‘a reasonable chance, 

more than an abstract possibility’ ”].) 

2. Friendship Between Chatham and Torres

a. Additional Facts

During depositions, Plaintiffs’ counsel asked about Chatham’s 

relationship with Torres. Chatham himself said Torres was a good friend, 

they would eat together, and she would watch his local theater performances. 

Librarian Lynn Kraszewski said Chatham and Torres “had a friendship,” and 

noted one time that she, Chatham, and Torres visited Chatham’s new 

apartment and then had dinner at Torres’s home. Teacher Merryl Nelson 

said Chatham and Torres were “collegial,” and when asked if he had Torres’s 

ear, she said “I felt he did . . . in relation to a few instances . . . that had to do 

with me.” Teacher Joni Mah said Torres “liked” Chatham, but would not 

“call it a close relationship” and was not aware of any special treatment, 

while a campus supervisor assumed they were friends, because they “talk[ed]

a lot.” 

The District moved in limine to exclude testimony that Chatham and 

Torres were friends, as irrelevant, speculative, and confusing. Plaintiffs 

opposed, citing the deposition testimony and Facebook messages from before 

Torres died in 2016, in which Chatham proposed getting brunch and said, “I 

miss you tons,” and Torres replied, “That sounds like a great idea! . . . Miss 

you, too!” At the motion hearing, Plaintiffs’ counsel argued Sonnich, the 

former head of human resources, would testify personnel were supposed to 

report, not investigate, because friendships were common and this evidence 

would show Chatham and Torres had one. The trial court tentatively 

excluded the evidence, stating they would see “how [Sonnich] testifies” and 
51

“let the evidence flow.” The court also granted Plaintiffs’ motion to exclude 

evidence of Torres’s character. 

During trial, Plaintiffs’ counsel again sought to introduce relationship

evidence, contending the District was suggesting in witness examination that 

the school would never “not respond . . . appropriate[ly]” to complaints, in 

part due to Torres’s character. The trial court denied the request, but told 

counsel, “You will probably be given a little leeway . . . when you have 

[Chatham] on the stand and you talk to him about his relationship with 

[Torres].” Chatham did not testify at trial.

Sonnich subsequently testified administrators were supposed to report, 

not investigate, due in part to the collegiality of the environment and the 

desire for a uniform process. Plaintiffs’ standard of care expert, Robert 

Fraisse, testified there should have been an independent investigation of the

2011 email, also citing collegiality. 

When Plaintiffs called Kraszewski, the trial court ruled they could ask 

about meals and going to each other’s houses, but could not ask if Chatham 

and Torres had a “special relationship,” explaining it “would be speculation, 

but more important is that [Torres] would not be here . . . .” Plaintiffs asked

Kraszewski if she, Chatham, and Torres ever socialized together outside of 

school, and she responded “[n]ot very often, but yes.” She described the time 

that Torres invited her and Chatham for dinner, and said this was “more to 

see” Chatham’s new apartment and they went to Torres’s house for dinner 

afterwards. 

During closing arguments, Plaintiffs’ counsel argued Chatham should 

have been reported for District investigation; cited Sonnich, Fraisse, and 

Kraszewski’s testimony; and asserted Kraszewski said “Torres wanted to be 

[Chatham’s] friend” and “[t]hat can cloud . . . judgment.” 
52

b. Analysis

Plaintiffs do not establish any abuse of discretion. The trial court 

carefully and repeatedly considered whether to permit evidence about

Chatham and Torres’s friendship, and ruled Plaintiffs could elicit certain 

testimony from Kraszewski (which they did) and Chatham (which they did 

not do). The court’s decision to preclude Plaintiffs from having Kraszewski

speculate about the nature of the relationship was sound, and Plaintiffs do 

not show they made any further effort to introduce the Facebook messages 

after the motion in limine hearing. 

Plaintiffs argue they sought the relationship evidence to “explain the 

lack of adequate response” by school administrators to the 2011 email report 

about Chatham. In other words, they aimed to suggest Torres handled the 

issue herself, rather than reporting it for District investigation, due to 

favoritism. But Torres was deceased, and the only deponent who even 

potentially suggested she favored Chatham was teacher Nelson—who said 

Chatham had Torres’s ear in situations relating to Nelson. The trial court 

could reasonably limit such speculation about Torres’s motives. (People v. 

Babbitt (1988) 45 Cal.3d 660, 682 [“ ‘The inference which defendant sought to 

have drawn . . . is clearly speculative, and evidence which produces only 

speculative inferences is irrelevant evidence.’ ”].) Plaintiffs were still able to 

elicit objective facts—Torres did not report Chatham for District 

investigation, and did visit his apartment and had dinner with him—and to 

use this evidence in closing arguments to contend her judgment could have 

been clouded by her desire to be friends with Chatham.

Plaintiffs also do not establish they were prejudiced by the limitation 

on the friendship evidence. They contend it “very reasonably accounts for the 

low allocation of only 40% fault to the District,” and was especially prejudicial 
53

because the District was able to emphasize Torres’s concern for student 

safety and accolades received by her and the school. These contentions lack 

merit. It was undisputed that Torres did not report Chatham for 

investigation, and Plaintiffs already showed she spent time with Chatham 

outside of school and argued her judgment was clouded as to him. Plaintiffs 

do not show that additional evidence about Torres and Chatham’s

relationship would have materially enhanced that showing, or impacted the 

fault allocation at all. 

3. Internet Bookmarks

a. Additional Facts

A laboratory ran a forensic search on Chatham’s District laptop, and 

San Diego Police Detective V. received a screenshot of his website bookmarks.

The screenshot included around 15 pornographic bookmarks, including 

multiple sites with the terms “teen” and/or “boy.” 

When Plaintiffs’ counsel examined Detective V. about the bookmarks, 

the District objected on various grounds, and the trial court addressed the 

scope of the testimony. The court asked Plaintiffs’ counsel if he wanted “all 

this in,” and counsel said, “[A] sampling . . . is fine. I don’t need to have every 

site.” Counsel explained that if the District had done the “investigation 

[they] . . . should have done,” it likely would have obtained Chatham’s

computer to see what was going on. The court stated it had an Evidence Code 

section 352 concern about the term “boy,” explaining “If we start getting into 

child porn . . . . Ballgame over.” The court asked Plaintiffs’ counsel to 

identify sites and avoid the term “boy”; counsel suggested “Gay Teen Love,” 

“Welcome to Free Gay Pictures,” Pornhost.com, and a site with 9,000 free gay 

photos, and also agreed to the trial court’s suggestion of “Gay Hotel in 

Amsterdam.” Detective V. resumed testifying, and Plaintiffs’ counsel said, 
54

“We’re not going to go through everything . . . . Just tell us a . . . few of the 

bookmarked sites on there.” Detective V. identified the five sites discussed by 

counsel and the court. 

Both psychiatric experts addressed grooming (an issue on which 

Plaintiffs believe the bookmark evidence is relevant, as we discuss post). 

Dr. Colarusso defined grooming as an attempt to gain confidence, so one can 

sexually abuse a child. He said that this was a “situation of group grooming” 

in front of other teenagers. Dr. Addario said grooming involves a perpetrator 

“singling out one person” for “special treatment,” and he had not had a case 

involving group grooming. Sonnich, former head of human resources, also 

testified about grooming, and said the “literature on this is that grooming is 

an individual with an individual.” 

Fraisse, Plaintiffs’ standard of care expert, testified that if the District 

found pornography on Chatham’s computer in 2010 or 2011, it “would have 

been a reason for termination.” During closing arguments, Plaintiffs noted 

the pornographic bookmarks, including “Gay Teen Love,” contended that they 

would have been discovered if an investigation was conducted in 2011, and 

argued there was group grooming. 

b. Analysis

Plaintiffs argue the trial court erroneously “refused to allow the 

document showing the pornographic websites.” We reject this argument. 

As a preliminary matter, it is not clear Plaintiffs objected to the trial 

court’s treatment of the bookmarks. Their counsel told the trial court a 

“sampling” was adequate and identified bookmarks at the court’s request

that did not include the word “boy.” On appeal, Plaintiffs indicate Exhibit 35 

had the full bookmark list and the court excluded it, but the record pages 

they cite do not address an Exhibit 35. (See Shaw v. County of Santa Cruz
55

(2008) 170 Cal.App.4th 229, 282 [appellants “fail to point to any place in the 

record where they successfully preserved” claim for “erroneous exclusion of 

evidence,” precluding consideration on appeal].)17

Even if Plaintiffs preserved their argument, they do not establish any

abuse of discretion. Under Evidence Code section 352, a trial court “may 

exclude evidence if its probative value is substantially outweighed by the 

probability” that it will “create substantial danger of undue prejudice,” 

among other grounds. The court reasonably excluded bookmarks containing 

the word “boy,” because it implicates child pornography and could unduly 

prejudice the jury. (Cf. People v. Holford (2012) 203 Cal.App.4th 155, 171 

[“[C]hild pornography is not pretty and will always be unpleasant. Trial 

courts must be afforded equally broad discretion in ruling on [Evid. Code, §] 

352 objections in this context”].) The court could also impliedly find that 

supplemental testimony (e.g. that Chatham was not charged with child 

pornography) would not mitigate this risk. The court still permitted 

Plaintiffs to identify multiple sites for Detective V’s testimony, including 

“Gay Teen Love,” which reflected Chatham’s sexual interest in young men. 

Plaintiffs do not establish otherwise. First, they argue the “presence of 

so many of these websites as bookmarks” shows the District failed to monitor 

Chatham’s computer after the 2011 email, and their discovery at the time 

would have triggered termination. But there is no dispute the District did 

not review his computer before 2014, any pornographic bookmarks would 

suffice to illustrate that, and Plaintiffs were able to elicit testimony about five

of them (and note this was not “everything”).

17 The exhibit lodgment in the record on appeal contains the bookmark 

list and identifies it as a nonadmitted page in Exhibit 2 (the police report), 

but Plaintiffs do not identify any ruling in that regard, either. 
56

Second, Plaintiffs argue that limiting the bookmark evidence bolstered

the District’s purported positions that Chatham’s conduct was not grooming, 

but rather “unprofessional behavior,” and that Plaintiffs participated in some 

of Chatham’s conduct. Even setting aside Plaintiffs’ dubious characterization 

of the District’s positions, their point lacks merit. If Plaintiffs felt that 

showing Chatham had sexual interest in young males was necessary to show 

he engaged in group grooming and preyed on Plaintiffs (and to dispute 

contrary arguments by the District), that still does not mean they needed the 

full list of bookmarks to do so. We also reject Plaintiffs’ claim that the 

inclusion of a gay travel site rendered the evidence “a non sequitur that 

Chatham was gay.” Their counsel agreed to include this site and regardless,

the “Gay Teen Love” site was evidence that Chatham was interested in young 

men specifically.

Finally, Plaintiffs do not establish prejudice. They contend the 

limitation of the bookmark evidence “had a reasonable likelihood of lowering 

the jury’s allocation of fault to the District.” We do not see how. Plaintiffs 

were able to have Detective V. testify about five bookmarks, including “Gay 

Teen Love,” and during closing arguments, they referenced that testimony

and were able to address the issues they focus on here (e.g., Chatham would 

have been terminated if the bookmarks had been discovered; grooming can 

occur on a group basis). Plaintiffs do not establish that having all 15 

bookmarks before the jury, instead of five, would have made any difference. 

4. H.R.’s Treating Psychologist 

a. Additional Facts

Trial initially was set for February 2018, and expert depositions were 

completed the previous month. 
57

In April or May 2018, H.R. began seeing Dr. Morgan Shaw, a treating 

psychologist at Kaiser Permanente. In mid-May 2018, Plaintiffs sent the 

District a “Supplemental Designation of Expert Witnesses” that listed 

Dr. Shaw as one of H.R.’s “percipient treating physicians who may be asked 

opinion testimony.” The transmittal email indicated they would forward

Dr. Shaw’s records. The District’s counsel responded, stating the District 

objected; discovery was closed; and this would prejudice the District and 

require further discovery. 

In late May 2018, the trial court issued an order continuing the trial to 

October 2018 and stating, “[n]o further discovery.” 

In September 2018, Plaintiffs unsuccessfully moved to augment their 

expert witness designation; only the denial order is in the record. 

The District moved in limine to bar Plaintiffs from offering testimony 

from Dr. Shaw. The District contended it had been unable to depose her, and 

its experts were unable to review the medical records. Plaintiffs opposed the 

motion, arguing in part that although the court previously denied their

motion to “designate Dr. Shaw as a non-retained expert,” the current 

question was “whether [she] should be allowed to testify as a percipient 

witness.” They also argued the District “refused to take [her] deposition . . . 

when it was offered on multiple occasions.” The counsel declaration they 

cited in support of their opposition does not appear to be in the record. At the 

hearing, the trial court ruled H.R. could testify Dr. Shaw treated him, but she 

could not testify. When the District’s counsel asked for clarification that H.R. 

was the only one who could testify, the court said his mother could “say [she] 

took him to treatment” and confirmed Plaintiffs’ expert psychiatrist, 

Dr. Colarusso, could not change or supplement his opinion. 
58

Mid-trial, the court expressed concern about the speed of proceedings 

and asked, “Is Dr. Shaw going to be called?” The record does not reflect any 

response by counsel. 

While conducting H.R.’s direct examination, Plaintiffs’ counsel asked 

about counseling he received in high school and in 2015. He said he attended 

five to seven sessions his sophomore year due to family issues and another 

five to seven his junior year after his grades slipped, and that the latter 

sessions “did help somewhat.” He said he sought out counseling at Kaiser 

again in 2015 because he was having “tough mental times” and the Chatham 

events were “get[ting] to” him. Plaintiffs’ counsel did not ask about 2018 or 

Dr. Shaw. They also examined H.R.’s parents about his counseling sessions, 

and also did not ask about 2018 or Dr. Shaw. 

During cross examination, the District’s counsel asked H.R. if he 

recalled the names of health care providers between October 2015 and April 

2018. He named Dr. Shaw. Counsel asked, “[W]hen did you first start to see 

Ms. Shaw?” and H.R. said, “sometime around the beginning of this year,” 

confirming he meant 2018. H.R. acknowledged he saw the counselor in 2015 

the day before his deposition. On redirect, Plaintiffs’ counsel asked H.R. how 

long he had seen Dr. Shaw, and he said, “probably [up until the] beginning of 

September.” 

The District’s expert, Dr. Addario, testified H.R. had a history of

noncompliance with treatment, and opined the “chances are fair to 

guarded if he’ll follow through with treatment.” He further testified, as to all 

Plaintiffs, that he did not know if he could “accept that we have three people 

who don’t go to any treatment, yet they’re having all these problems.” As 

noted, Plaintiffs’ expert, Dr. Colarusso, believed all three Plaintiffs needed 

years of therapy. 
59

In closing arguments, Plaintiffs’ counsel noted H.R. had “been seeing 

Dr. Shaw since early 2018,” and argued the “therapy with Dr. Shaw ha[d]

helped [H.R.] a lot,” and he “hop[ed] . . . to get better mentally.” The 

District’s counsel argued the jury should consider the lack of counseling in 

evaluating the damages evidence. For H.R., counsel argued he “rarely went 

to counseling,” went after his lawsuit only before the deposition, and was not 

going now, and said, “So will he go in the future? We don’t know. We can 

judge past conduct. We know what he’s done so far.” 

b. Analysis

Plaintiffs do not show the trial court abused its discretion. After

unsuccessfully trying to add Dr. Shaw to their expert witness designation, 

they opposed the District’s motion to exclude her, in part because she could 

still testify as a percipient witness. Put differently, she could testify about 

the treatment H.R. received. The trial court could reasonably conclude this 

topic could be addressed by having H.R. testify about his treatment, which 

avoided having a witness who was identified after discovery closed (whether 

the delay was justified or not). It was Plaintiffs who then chose to address 

the topic in only a limited manner. They did not ask H.R. about Dr. Shaw

until redirect examination, and then asked only when counseling ended—not 

how many sessions he attended or whether they were helpful, testimony they 

elicited about other counseling sessions. They also did not ask if he planned 

to resume treatment in the future. And there is no indication they renewed 

their request to have Dr. Shaw testify, even after the trial court asked midtrial if she would be testifying.

Plaintiffs’ arguments lack merit. They contend they offered Dr. Shaw 

for deposition and, because the District did not take it, the District was able 

to suggest H.R. was malingering or unlikely to seek treatment. Plaintiffs’ 
60

appendix omits the attorney declaration that purportedly shows the 

deposition offers were made. (County of Sacramento v. Rawat (2021) 65 

Cal.App.5th 858, 861 [“ ‘[W]e may disregard factual contentions . . . based on 

information that is outside the record.’ ”].) In any event, we assume that to 

the extent Plaintiffs described discovery proceedings for the trial court, the 

court considered them while ruling on the motion in limine, and it could still 

reasonably conclude that having H.R. testify, not Dr. Shaw, was the fair 

resolution. (Evid. Code, § 664 [“It is presumed that official duty has been 

regularly performed.”].)

Plaintiffs do not establish prejudice, either. They contend that 

Dr. Shaw’s testimony was necessary, and H.R.’s damages were unjustifiably 

low as a result of its exclusion. We are not persuaded. Plaintiffs still 

presented evidence that H.R. received counseling multiple times in the past 

(from H.R. and his family), and would benefit from years of counseling in the 

future (from Plaintiffs’ psychiatric expert, Dr. Colarusso). That showing was 

not rendered moot simply because the District offered expert testimony and 

argument that questioned if H.R. would seek treatment. We also reject 

Plaintiffs’ assertion that “[t]he key piece of rebuttal evidence” for H.R. was 

“his 10 visits to Dr. Shaw in April and May of 2018, documented in Exhibit 

127 [Dr. Shaw’s treating notes].” H.R. told the jury he saw Dr. Shaw from 

the “beginning” of 2018 through September 2018, and Plaintiffs cited the 

“early 2018” timeframe in closing arguments, permitting the jury to infer a 

long treatment period and potentially many visits. The treating notes would 
61

have shown he saw her for around six weeks, and a limited number of 

times.18 

5. M.L.’s College Football Coach

a. Additional Facts

M.L. played football during his second year at Grossmont Community 

College. During a transcribed interview with Dr. Addario in 2017, M.L. told 

him, “I played one full year of football. . . . I did pretty good in school because 

I was playing football all year long.” 

In opening statements, Plaintiffs’ counsel told the jury that at the end 

of M.L.’s college football season, “with Division 1 scouts there, and having the 

best game of his . . . career[,] he just walked off the field.” 

M.L. testified he did not get into a Division 1 or 2 program, because he 

did not have the grades, and everything he worked for was “washed [away], 

gone, pointless.” He enrolled at Grossmont to play football and try to transfer

to another program. He did not play his first year due to an injury, and said 

“it started to get a little more rough,” as he “lost [his] outlet.” During his

second year, the “love of the sport” was leaving him. He said his last game 

was week eight; it was his “best game . . . all year,” with scouts in the stands; 

and he “walked off,” “[d]idn’t finish the season,” and “[didn’t] know why.” On 

cross-examination, the District’s counsel asked if M.L. told Dr. Addario he

played “all year,” and M.L. recalled saying he played “that football year.” 

After counsel read the interview transcript, M.L. acknowledged he told 

Dr. Addario, “I played the year.” On redirect, M.L. confirmed he walked off 

18 Proposed Exhibit 127, which the parties lodged here, reflects five visits, 

and two “no show[s].” A summary invoice has 10 entries, with five entries for 

the visits and five entries for payment dates. 
62

the field with “about two” games left, it was his “last game,” and he “[didn’t] 

know what happened.” 

M.L.’s father testified M.L. had a “couple of really amazing” college 

football games, but the “last two games of the season he didn’t even show up 

for his own games.” 

Dr. Colarusso opined M.L.’s “self-esteem was built around his 

reputation as a football player,” he had been “outed . . . having had

homosexual experiences with a teacher,” and feared the “publicity related to 

sports.” He said that despite M.L. initially excelling at football after the 

Chatham events, that did not continue into junior college, noting he walked 

off the field and did not finish the year. On cross-examination, he

acknowledged the walk-off incident was not in his notes, but recalled the 

information came from M.L. Dr. Colarusso also testified, “We talked some 

about his struggle with grades in high school. He said, quote, I lost 

everything, meaning, self-esteem, his life, his football career. Quote, I was 

depressed. No one would understand. He didn’t open up to his parents. He 

felt like less of a man.” 

Plaintiffs’ counsel asked to call M.L.’s college football coach. The trial 

court said, “Don’t call the football coach. It’s not the main issue.” Counsel 

asked if he could call him as a rebuttal witness, and the court stated, “You 

can always . . . if it’s appropriate, call somebody on rebuttal.” After the 

District’s case, the court said the coach was “out,” but let Plaintiffs’ counsel 

make an offer of proof. Counsel argued the District made Plaintiffs’

“credibility . . . a major issue” and cross-examined M.L. on his statement to 

Dr. Addario; there was “jury appeal” in that M.L. “walked off the field and 

never went back to his sport, his passion”; and the coach “can corroborate 

that.” The court ruled the football coach could not testify. 
63

During closing arguments, Plaintiffs’ counsel reiterated M.L. walked off 

the field. The District’s counsel argued there was no “credible evidence to 

that effect,” citing the interview with Dr. Addario. Counsel further argued, 

“The football career [M.L.] thought he was going to have . . . did not 

happen . . . when he went to junior college” and “that’s what shattered” him. 

b. Analysis

Even if the football coach were a proper rebuttal witness (which the 

District disputes), Plaintiffs do not establish they were prejudiced by his 

exclusion. They argue, in substance, that the District questioned whether 

M.L. left football because of Chatham’s abuse, in order to call his credibility 

into question and reduce the jury’s damage award, and the coach’s exclusion 

led to reduced damages. These arguments lack merit. 

There was no dispute M.L. was a promising high school football player, 

who left the sport after playing during one college season. But whether he 

left the sport because of Chatham, and the circumstances under which he 

left, are different issues. Plaintiffs do not establish the coach had any insight 

as to the potentially significant issue: why he left football. Rather, the coach

could testify only about the comparatively minor detail of when and how M.L. 

left the team. And there was already evidence before the jury on that issue. 

Both M.L. and his father testified he did not finish the season; M.L. described 

walking off the field; and he confirmed doing so, even after hearing the 

interview transcript with Dr. Addario. Plaintiffs do not establish additional 

testimony from the coach on this minor factual issue could have increased the 

damage award. (Cf. Cassim, supra, 33 Cal.4th at p. 800 [must be “more than 

an abstract possibility”].)

Plaintiffs’ focus on the District’s arguments is unavailing. To the 

extent the District contended in closing arguments that M.L. left football for 
64

reasons other than Chatham, this was supported by evidence unrelated to 

any testimony the coach could provide. Although Dr. Colarusso suggested 

M.L.’s departure from football was related to Chatham, he also noted M.L.

addressed his struggle with his grades. M.L. himself said that when he did 

not get into a top football program due to his grades, he felt like everything 

he worked for was “pointless.” And M.L. stated he “didn’t know” why he left 

the field. Although the District did argue there was no credible evidence 

M.L. left the field mid-game—an issue on which the coach could have 

testified—Plaintiffs do not show that would have impacted damages, for the 

reasons discussed above.

E. Plaintiffs Do Not Establish Instructional Error 

Finally, Plaintiffs argue the trial court prejudicially limited damages, 

by erroneously listing them in the oral CACI 406 instruction regarding 

apportionment of fault. We conclude any error was harmless.

1. Additional Facts

The trial court and counsel addressed the verdict form and the CACI 

406 jury instruction, which addresses fault apportionment among joint 

tortfeasors. The District sought to include additional individuals on the 

verdict form, including H.R.’s father, which Plaintiffs opposed. The court 

ruled only the District and Chatham would be on the form, stating it “relies 

on what joint tortfeasors are . . . .” 

While giving the jury instructions, the trial court explained Plaintiffs

claimed the District negligently retained and supervised Chatham, resulting 

in harm to them, and the District denied these claims. The court 

subsequently instructed the jury with a modified version of CACI 406 and 

erroneously included the term “plaintiffs” (italics added):

“[The District] claims . . . [Chatham] also contributed to 

Plaintiffs’ harm. To succeed on this claim, [the District] 
65

must prove both of the following: [¶] 1, that [Chatham] 

was at fault; and [¶] 2, that the fault of [Chatham] was a 

substantial factor in causing Plaintiffs’ harm. [¶] If you 

find that the fault of more than one person, including 

Plaintiffs, [the District], and [Chatham], was a substantial 

factor in causing Plaintiffs’ harm you must decide how 

much responsibility each has by assigning percentages of 

responsibility to each person listed on the verdict form. 

The percentages must total 100. [¶] You will make a 

separate finding of plaintiffs’ total damages, if any. In 

determining the amount of damages, you should not 

consider any person’s assigned percentage of responsibility.

[¶] ‘Person’ can also mean an individual or a business 

entity.”

The oral instruction matched the written jury instructions submitted before 

trial. The court also instructed the jury under CACI 3900 to award damages 

“caused by [the District’s] wrongful conduct.” 

While addressing apportionment in closing arguments, the District’s 

counsel argued as to H.R., “Don’t let [Chatham] get away. . . . He’s 100 

percent at fault. . . . 99 percent, 98 percent. Definitely the vast majority of 

fault.” For M.L., he said “don’t let [Chatham] get away” and that Chatham

was at fault a “hundred percent, 99 percent.” And, for K.M., he said, “[W]hen 

you apportion fault, it’s [Chatham].” 

After closing arguments, the trial court gave further instructions. The 

court stated “[m]ost . . . instructions are typed,” but handwritten words might 

be added, and the jurors should “treat all the words the same” and “[s]imply 

accept the instructions in [their] final form.” The court also stated, “I will 

give you verdict forms with answers you must follow.” The final written jury 

instructions are not in the record. The verdict form is not in the record 

either, but the judgment memorialized the verdict and reflects apportionment

to Chatham (60 percent) and the District (40 percent). 
66

Plaintiffs moved for a new trial based in part on instructional error 

regarding CACI 406, which the trial court denied. The court found it was 

wrong to include plaintiffs in CACI 406, but this did not “infect[ ] the 

whole . . . verdict.” The court further stated, “Clearly, there was no 

comparative negligen[ce] . . . instruction. Clearly, the verdict form put it just 

between [Chatham] and the [District].” 

2. Applicable Law

“Instructional error in a civil case is not ground for reversal unless it is 

probable the error prejudicially affected the verdict.” (Red Mountain, LLC v. 

Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 359 (Red 

Mountain); accord, Soule, supra, 8 Cal.4th at p. 580; Soule, at pp. 580-581 

[factors for consideration include the state of the evidence, the effect of other 

instructions and counsel’s arguments, and any indications by the jury it was 

misled].) “We independently review claims of instructional error viewing the 

evidence in the light most favorable to the appellant.” (Orichian v. BMW of 

North America, LLC (2014) 226 Cal.App.4th 1322, 1333.)

3. Analysis

Plaintiffs do not establish they were prejudiced by the trial court’s 

inclusion of the term “plaintiffs” in the oral CACI 406 instruction.

As an initial matter, Plaintiffs do not show the jury relied on the oral 

instruction. “We presume that jurors are intelligent and capable of correctly 

understanding, correlating, applying, and following the court’s instructions.” 

(People v. Acosta (2014) 226 Cal.App.4th 108, 119 (Acosta).) “ ‘This 

presumption includes the written instructions.’ ” (People v. Mills (2010) 48 

Cal.4th 158, 200-201 (Mills).) “[A]s long as the court provides the jury with 

the written instructions to take into the deliberation room, they govern in 

any conflict with those delivered orally.” (People v. Osband (1996) 13 Cal.4th 
67

622, 717; see People v. Mungia (2008) 44 Cal.4th 1101, 1132 [“[W]hen 

erroneous oral instructions are supplemented by correct written ones, we 

assume the jury followed the written instructions, particularly when, as here, 

the jury is instructed that the written version is controlling.”].) 

Plaintiffs concede the final written instructions presumptively were 

correct, but argue we should not assume the jury followed them. They state

the “presumption of regularity applies where the jury is instructed that the 

written instructions control,” usually with CALJIC 17.45; other cases 

involved minor errors; and the error here was “far from trivial . . . .”19 The 

District maintains the trial court did indicate the written instructions 

controlled, by telling the jury to “[s]imply accept the instructions in [their] 

final form”; Plaintiffs disagree this was adequate. We need not resolve that

disagreement, because the error was trivial, as we explain next in concluding 

there was no prejudice.

The rest of the instructions, the verdict form, and closing arguments all 

made clear to the jury that fault should be assigned between Chatham and 

the District. (See Soule, supra, 8 Cal.4th at pp. 580-581.) The rest of CACI 

406 told the jury the District claimed Chatham also contributed to their 

harm—not Plaintiffs themselves; to “assign[ ] percentages of responsibility to 

each person listed on the verdict form”; and that the “percentages must total 

100.” The jury was also told they would be given “verdict forms with answers 

[they] must follow.” Chatham and the District presumably were the only 

persons on the verdict form. During closing arguments, the District’s counsel

argued Chatham was 100 percent at fault (or close), and the jury should not 

19 CALJIC 17.45 states in pertinent part, “You are to be governed only by 

the instruction in its final wording.” 
68

let Chatham “get away” with it. Counsel never stated Plaintiffs were any

percent at fault.

On this record, it would have been unreasonable for the jurors to view 

the word “plaintiffs” in CACI 406 as anything besides a trivial misstatement 

and we will not assume they did. (Acosta, supra, 226 Cal.App.4th at p. 119; 

cf. Mills, supra, 48 Cal.4th at p. 200 [“verdicts are not undermined by the 

mere fact the trial court misspoke”].) There is also nothing to suggest the 

jury was confused. The jury’s assigned fault percentages, 60 percent to 

Chatham and 40 percent to the District, added up to 100 percent, as 

instructed. Plaintiffs also do not show the jury asked any questions during 

deliberations. Accordingly, Plaintiffs do not establish they would have 

obtained a larger apportionment to the District or higher damage award, 

absent the error, and we will not reverse. (Red Mountain, supra, 143 

Cal.App.4th at p. 359.) 

Plaintiffs’ arguments do not compel a different result.

First, they argue that because the trial court gave the CACI 3900 

instruction to award damages “caused by [the District’s] wrongful conduct,” 

the jury “reduced ahead of time . . . damages . . . not caused” by the District 

and “being told to apportion fault to Plaintiffs . . . would result in a double 

deduction to Plaintiffs.” The trial court gave CACI 406 before CACI 3900; 

mistakenly permitted, but did not require, apportionment of fault to 

Plaintiffs; and expressly told the jury it would determine damages 

“separately” and “should not consider” assigned responsibility. We must 

assume the jury followed the instructions, not misunderstood or disregarded 

them. (Acosta, supra, 226 Cal.App.4th at p. 119.)

Second, Plaintiffs argue the District’s trial strategy was to blame them 

for “their participation [in] and failure to report” Chatham’s conduct, citing 
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evidence and argument that they did not fear him and viewed his conduct as 

a joke, did not report it at the time, and did not pursue counseling. Plaintiffs

then argue the oral CACI 406 instruction “likely resulted in one of three 

scenarios”: the jury could have handwritten a percentage of fault for 

Plaintiffs on the verdict form, which they concede did not happen; they could 

have “assigned Plaintiffs a certain percentage of fault and . . . attributed it to 

Chatham”; or they could have “reduced the overall damages already limited 

to [District’s] misconduct by what they considered to be Plaintiffs’ individual 

fault.” Plaintiffs assert the latter two are reasonably probable, so they have 

shown prejudice. Not so. We already rejected a discount as inconsistent with 

the jury instructions. Plaintiffs’ claim that the jury could assign fault to 

Plaintiffs, but attribute it to Chatham, is both contrary to the instructions 

and implausible. Ultimately, Plaintiffs disregard the likely scenario, that is

consistent with the instructions: the jury ignored the misstatement and 

assigned fault and awarded damages based on their view of the District’s 

culpability.20 

II. The District’s Appeal From The Costs Orders 

The District argues the trial court’s orders on costs should be reversed, 

because the court erroneously ruled its section 998 offers were invalid. This 

argument lacks merit. 

A. Additional Facts 

The District made the operative section 998 offer to each Plaintiff in 

May 2018. The District offered $320,000 to H.R., $170,000 to K.M., and 

$110,000 to M.L. Pertinent here, each offer included the following language:

20 Because Plaintiffs do not establish prejudicial error, we do not reach 

the District’s further argument that Plaintiffs invited error by, inter alia, not 

objecting to the oral instruction at the time. 
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“Plaintiff . . . agrees that all parties will bear their own 

costs and fees, and the parties will execute a settlement 

and release providing that Plaintiff will satisfy all liens, 

execute a Civil Code section 1542 waiver, and there will be 

no admission of liability by [the District].”21

No settlement agreement or release agreement was attached to the offers. 

Plaintiffs did not accept the offers.

As noted, the judgment required the District to pay $240,000 to H.R., 

$60,000 to K.M., and $69,000 to M.L. For each Plaintiff, the District’s section 

998 offer exceeded the amount owed.

The District filed costs memoranda, and moved to strike Plaintiffs’ 

costs based in part on the section 998 offers. Plaintiffs moved to tax the 

District’s costs, and opposed the motion to strike their costs, arguing the 

section 998 offers were invalid. 

The trial court granted Plaintiffs’ motions to tax costs, stating the 

District “failed to meet its burden to show the . . . section 998 offers were 

valid,” and citing Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81 (Ignacio) and 

Sanford v. Rasnick (2016) 246 Cal.App.4th 1121 (Sanford). The court 

granted the District’s motions to tax Plaintiffs’ costs in part, and on grounds 

other than section 998. During the hearing, the court explained the offers 

were “invalid because of the additional terms[,] in trying to value the 

additional terms.” 

21 Civil Code section 1542 states: “A general release does not extend to 

claims that the creditor or releasing party does not know or suspect to exist 

in his or her favor at the time of executing the release and that, if known by 

him or her, would have materially affected his or her settlement with the 

debtor or released party.”
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B. Applicable Law 

Section 998 “establishes a procedure for shifting the costs upon a 

party’s refusal to settle. If the party who prevailed at trial obtained a 

judgment less favorable than a pretrial settlement offer submitted by the 

other party, then the prevailing party may not recover its own postoffer costs 

and, moreover, must pay its opponent’s postoffer costs, including, potentially, 

expert witness costs.” (Ignacio, supra, 2 Cal.App.5th at p. 86; see Elite Show 

Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268 (Staffpro) 

[purpose of § 998 is to “encourage . . . settlement . . . , by punishing the party 

who fails to accept a reasonable settlement offer from its opponent”].) 

“The burden is on the offering party to demonstrate that the offer is 

valid under section 998.” (Ignacio, supra, 2 Cal.App.5th at p. 86.) Whether a 

section 998 offer is “sufficiently certain to be enforceable involves a question 

of law . . . .” (Staffpro, supra, 119 Cal.App.4th at p. 268; Berg v. Darden

(2004) 120 Cal.App.4th 721, 727, 731 (Berg) [no “ ‘magic language’ ” is 

necessary, but “offer must be sufficiently specific to permit the recipient 

meaningfully to evaluate it”].) “We independently review whether a section 

998 settlement offer was valid.” (Ignacio, at p. 86; Staffpro, at p. 268 [review 

is de novo].)

C. Analysis 

Each section 998 offer required the parties to “execute a settlement and 

release providing that Plaintiff will satisfy all liens, execute a Civil Code 

section 1542 waiver, and there will be no admission of liability,” but did not 

attach a settlement and release agreement. Plaintiffs argue all three terms 

rendered the offers invalid, which the District disputes. We conclude that 

requiring execution of a settlement and release agreement, without attaching 
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it or at least providing detailed terms, rendered the offers invalid, and do not 

reach the other arguments advanced by the parties.

Sanford, cited by the trial court, is instructive. (Sanford, supra, 246 

Cal.App.4th at pp. 1123-1124.) Defendants in a motorcycle accident case 

made a section 998 offer that required “execution and transmittal of a written 

settlement agreement and general release,” but neither the offer, nor counsel 

communications, disclosed the agreement’s terms. After losing at trial, they 

successfully moved to tax the plaintiffs’ costs, and the Court of Appeal 

reversed. (Id. at pp. 1125, 1127-1128, 1130.) The court stated, “The case law 

does allow for releases. [Citations.] [¶] But a release is not a settlement 

agreement, and the [defendants] have cited no case, and we have found none, 

holding that a valid . . . 998 offer can include a settlement agreement, let 

alone one undescribed and unexplained.” (Id. at p. 1130.) The court 

elaborated:

“[T]he terms of a settlement agreement can be the subject 

of much negotiation. And the terms can be problematical. 

For example, settlement agreements typically contain a 

waiver of all claims ‘known and unknown,’ a provision that 

has been held to invalidate a . . . 998 offer.’ [Citations.] 

[¶] . . . [¶] [A]nd as every lawyer who has settled a case will 

appreciate, the issue as to . . . section 1542 in a release can 

be the subject of much discussion.” (Sanford, supra, 246 

Cal.App.4th at p. 1131.)

The court agreed with the plaintiff that because the agreement was “not 

described or revealed,” he was “ ‘left to guess at what terms [the offerors] 

might insist upon . . . .’ ” (Sanford, supra, 246 Cal.App.4th at p. 1131; id. at 

p. 1132 [“ ‘Disputes would erupt and become routine over what offerors can 

and cannot place into these jack-in-the-box settlement agreements hidden in 

their section 998 offers.’ ”].)
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The District’s section 998 offers are invalid for the same reasons as in 

Sanford. They required the Plaintiffs to execute a settlement agreement and 

release, but did not attach the written agreement or describe the terms in 

any meaningful detail. This left Plaintiffs “to guess at what terms” the 

District might require. (Sanford, supra, 246 Cal.App.4th at p. 1131; compare

Auburn Woods I Homeowners Assn. v. State Farm General Ins. Co. (2020) 56 

Cal.App.5th 717, 727 (Auburn) [“Unlike in the Sanford case, here the 

proposed settlement agreement was attached to [defendants’] section 998 

offer, and thus [the plaintiffs were] not required to guess about the terms and 

conditions.”].) Plaintiffs identify potential terms like tax treatment and nondisparagement. The District’s response—that “the terms are right there” and 

“[t]here is nothing to add”—is not compelling. If there was nothing to add, 

there was no need to require “execution of a settlement and release.”

Nor, as the District claims, is this deficiency mitigated by the offers’

broad description of three terms (i.e., lien satisfaction and Civil Code section 

1542 waiver by Plaintiffs, nonadmission of liability by the District). As the 

Sanford court observed, settlement agreement terms “can be the subject of 

much negotiation”—including terms regarding liens and Civil Code section 

1542. (Sanford, supra, 246 Cal.App.4th at p. 1131 [settlement agreement 

terms “can, and frequently do, implicate the protection of lienholders”]; ibid. 

[“the issue as to . . . [Civ. Code, §] 1542 in a release can be the subject of much 

discussion”].) The District maintains a section 998 offer can require 

satisfaction of liens, citing Toste v. CalPortland Construction (2016) 245 

Cal.App.4th 362, 374. But that is not what the District’s offers do. Rather, 

they require a settlement that addresses liens, which can involve issues 

warranting further negotiations (e.g. lien treatment after default). Toste did 

not involve a settlement agreement, and Sanford confirms that once an 
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agreement is required, the details of issues like liens must be addressed. 

That the Sanford offer did not address liens at all does not render its point 

inapplicable, as the District contends. (Sanford, at p. 1125.)22

The District belatedly offers two more points on reply, which also lack 

merit. First, it argues an “offeree may seek clarification or negotiate the 

terms of an unclear section 998 offer,” citing Berg, supra, 120 Cal.App.4th 

721. (Id. at pp. 730-731 [determining § 998 offer was sufficiently specific, but 

noting that if offeree is “uncertain about some aspect of the offer,” he is “free 

to explore those matters with the offeror, or even to make 

counterproposals”].) That an offeree has these options does not absolve an 

offeror from providing a clear, valid offer. Second, the District argues the 

offers “did not require ‘execution and transmittal of a written settlement 

agreement’ as . . . in Sanford,” but rather “sought execution of a ‘settlement 

and release.’ ” In this context, “execute” reasonably implies a written 

document. (See Black’s Law. Dict., 11th ed. [definitions of “execute” include 

“[t]o make (a legal document) valid by signing”].) Accordingly, the District’s 

combined respondent’s brief and cross-appellant’s opening brief repeatedly 

characterized the offer as “requir[ing] . . . a settlement agreement,” in one 

instance calling it an “expected settlement agreement.” The District offers no

22 Although we need not address whether the Civil Code section 1542 

waiver separately renders the Code of Civil Procedure section 998 offer 

invalid, we note that in cases cited by the District on the issue, the offeror 

provided a settlement agreement that included the Civil Code section 1542 

waiver, mitigating concerns about its scope. (See Fassberg Construction Co. 

v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 765 

[“proposed agreement . . . included a waiver of the provisions of Civil Code 

[§] 1542”]; Auburn, supra, 56 Cal.App.5th at p. 726 [Civ. Code, § 1542 waiver 

in proposed settlement agreement was limited to “any and all claims for 

damages related to the subject of the ACTION”].) 
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reasonable explanation on reply for what else “execution of a settlement and 

release” could mean. 

DISPOSITION

The judgment and order are affirmed. The District shall be awarded its 

costs with respect to Plaintiffs’ appeal. Plaintiffs shall be awarded their costs 

with respect to the District’s appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

BUCHANAN, J.