No Treble Damages Against Public Entities for “Cover-Up” Under Childhood Sexual Assault Statute
In 2020, the Legislature amended Code of Civil Procedure section 340.1(b)(1) to permit the imposition of treble damages for a “cover up” of childhood sexual assault. Many questions remain unresolved in the courts concerning the constitutionality and application of this statute, including what specific conduct constitutes a “cover up.” (The Second Appellate District denied a writ of mandate filed in October 2021 challenging the constitutionality of the treble damages provision in the statute. See Alameda Superior Court Case No. JCCP 5108; Second Appellate District Case No. B313278.)
However, one question has now been answered definitively and favorably for public entities. There is no exposure to treble damages when a public entity is sued for a “cover up” of a childhood sexual assault. In Los Angeles Unified School District v. Superior Court (Jane Doe) ___ Cal. 5th ___ (2023), the California Supreme Court unanimously held the purpose of treble damages in the amended statute to be punitive, not remedial. Just as a public entity cannot be liable for punitive damages (Govt. Code 818), it cannot be liable for treble damages either, as a matter of law. This decision followed an earlier published Court of Appeal opinion involving a public school district reaching the same result, X.M. v. Superior Court of San Bernardino County (2021) 68 Cal. App.5th 1014.
The Supreme Court explicitly rejected the plaintiffs’ argument the penalties were intended to fully compensate plaintiffs or achieve a non-punitive public policy objective instead of being “simply or solely punitive.” The Court saw through this argument, noting that “[s]ome kind of nonpunitive function can always be hypothesized for any award of damages, whether it be the incentivization of lawsuits by holding out the prospect of a larger return, the recovery of expenditures on attorney fees or litigation expenses or something else.”
The Court acknowledged that in some instances treble damages can be remedial and not punitive, but this depends on a fact-based inquiry that may vary from statute to statute. Focusing on the childhood sexual assault statute, the Court reviewed the legislative history of the “cover up” language and tripling damages. In that history, there was consideration not only to compensating but to punishing those protecting perpetrators of sexual assault. [A committee analysis of Assembly Bill 218 explained how “[t]he bill also exposes those who cover up the sexual abuse of children to additional punishment.”]
In addition, the Court disagreed with the premise that “cover up” damages would incentivize victims. The existence of a “cover up” may be unknown to the victim until after the lawsuit is filed, blunting any incentivizing effect.
In conclusion, the Court explained: “[w]e remain convinced that the enhanced damages authorized under section 340.1(b)(1) are imposed primarily for the sake of example and by way of punishing the defendant (818) and are therefore incapable of being imposed on a public entity.”
You can find the case here.
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