Doe v. The Superior Court
| Docket Number | S272166 |
| Decision Date | 27 July 2023 |
| Parties | JANE S.D. DOE et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MOUNTAIN VIEW SCHOOL DISTRICT, Real Party in Interest. |
| Court | California Supreme Court |
Second Appellate District, Division Two B313874
Superior Court Los Angeles County No. BC712514 Mary Ann Murphy Judge
Carrillo Law Firm, Luis A. Carrillo, Michael S. Carrillo Laura M. Jimenez; The Senators (Ret.) Firm, Ronald T Labriola; Esner, Chang &Boyer, Stuart B. Esner, Holly N. Boyer and Kevin K. Nguyen for Petitioners.
Arbogast Law and David M. Arbogast for Consumer Attorneys of California as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Lewis Brisbois Bisgaard &Smith, Jeffry A. Miller, Lann G. McIntyre, Dana Alden Fox, Gregory M. Ryan, Edward E. Ward, Jr., and Wendy S. Dowse for Real Party in Interest.
OPINION
Jane S.D. Doe (plaintiff) sued the Mountain View School District (real party in interest, hereinafter the District) to recover for sexual abuse committed by her fourth-grade teacher when she was eight years old. The District, seeking to undermine plaintiff's claim for emotional distress damages resulting from the teacher's conduct, planned to introduce evidence that plaintiff had been molested a few years later by another person - and that this subsequent molestation caused at least some of plaintiff's emotional distress injuries and related damages.
Evidence Code section 1106, subdivision (a), generally protects - or shields - civil litigants who allege "sexual harassment, sexual assault, or sexual battery" by barring evidence of a "plaintiff's sexual conduct . . . to prove consent by the plaintiff or the absence of injury to the plaintiff." (Italics added.)[1] Yet subdivision (e) of section 1106 also specifies: "This section shall not be construed to make inadmissible any evidence offered to attack the credibility of the plaintiff as provided in Section 783." In turn, section 783, subdivision (d), provides that a trial court may allow introduction of evidence "regarding the sexual conduct of the plaintiff," so long as that evidence "is relevant pursuant to Section 780" (governing witness credibility, generally) and "not inadmissible pursuant to Section 352" (governing a court's discretion to exclude relevant evidence under certain circumstances).
Plaintiff filed a pretrial motion seeking to exclude evidence of the subsequent molestation. The trial court ruled that the challenged evidence was (1) not protected by any shield statute, and (2) relevant and admissible with regard to whether plaintiff's emotional distress was caused solely by the teacher's conduct or by a combination of his conduct and the subsequent molestation. In light of that ruling, both parties referred to the subsequent molestation in their opening statements to the jury. We then stayed the trial and directed the Court of Appeal to issue an order to show cause. The appellate court obtained briefing, held oral argument, and published an opinion finding the evidence regarding the subsequent molestation admissible. (Doe v. Superior Court (2021) 71 Cal.App.5th 227 (Doe).) We granted review of that decision to address the interrelationship of the statutory provisions and the admissibility of the challenged evidence.
We conclude that section 1106, subdivision (e), may permit admission of evidence that would otherwise be excluded under section 1106, subdivision (a). But such admissibility is subject to the procedures set out in section 783 and especially careful review and scrutiny under section 352. As we shall explain, the Legislature devised section 783 to protect against unwarranted intrusion into the private life of a plaintiff who sues for sexual assault, by identifying and circumscribing evidence that may be admitted to attack such a person's credibility. Correspondingly, section 352, as applied in this setting, requires special informed review and scrutiny, designed to protect such a plaintiff's privacy rights and to limit the introduction of evidence concerning such a person's sexual conduct. And yet, these crucial protections appear not to have been applied in this case. Accordingly, we direct the Court of Appeal to remand the matter to the trial court for further proceedings. Thereafter, the trial court will need to determine whether, assuming the jury remains empaneled, trial with that jury should proceed.
Plaintiff is one of six former students suing the District and its former employee, plaintiff's teacher, Joseph Baldenebro, concerning sexual abuse committed by Baldenebro. A first amended complaint, filed in October 2020, alleges Baldenebro is "currently in the custody of the California Department of Corrections." The complaint asserts negligence based on the District's hiring and retention of Baldenebro; its supervision of him; its failure to warn, train, and educate against his abuse; and its failure to report his abuse. The complaint also alleges sexual harassment against the District and Baldenebro. (Civ. Code, § 51.9.) Regarding plaintiff, who was born in May 2001, the complaint alleges Baldenebro "molested [her] on multiple occasions" in 2009-2010. Although the complaint asserts generally that each minor victim was "molested" by Baldenebro between 2002 and 2017, the complaint further alleges much more graphic conduct as to plaintiff in particular. The complaint contends she has suffered "extensive physical, psychological and emotional damages," which she eventually (in 2016) "began to discover . . . were caused by the childhood sexual harassment" by Baldenebro.
Through discovery, the District learned that approximately three years after the original abuse by Baldenebro, plaintiff suffered "another sexual incident" in 2013, perpetrated by a "teenaged family friend." Nothing in the record sheds light on the nature or extent of the 2013 incident.
In May 2021, plaintiff filed a motion in limine invoking sections 1106 and 352 as a shield against admission of evidence concerning the 2013 molestation. At a pretrial hearing in midJuly 2021, the trial court raised the applicability of "section 782" which, along with corresponding section 1103, governs the admissibility of evidence regarding "sexual conduct" and related procedures to attack the "credibility of the complaining witness" in criminal cases. Clearly, the trial court meant to refer to section 783, which, along with corresponding section 1106, governs admissibility of evidence concerning "sexual conduct" and related procedures used to attack the "credibility of the plaintiff" in civil cases. (Regarding the interrelationship and background of these four key statutes, see pt. II., post.) The trial court expressed doubt whether "section 782" governs admission of the 2013 molestation because, the court asserted, that statute "[t]ypically . . . relates to voluntary sexual activity of the victim." But "just to be on the safe side," the court asked the District to submit a motion seeking to introduce the evidence under "section 782."[2]
The District filed an application as directed, arguing that "section 782" did not govern because "[t]his action is not a criminal prosecution." The District also asserted it did not plan to use the 2013 molestation evidence to impeach the plaintiff, yet sought to introduce the evidence "out of an abundance of caution." In sealed filings it set out what it knew about the 2013 molestation and included a declaration concerning the relevance of that evidence: "to establish an alternative explanation for [plaintiff's] psychological harm and condition." Specifically, the District asserted, whereas plaintiff "alleges past and future emotional distress and psychological injuries from the Baldenebro molestation" in 2009-2010, "[t]he 2013 incident . . . may be the cause of harm from 2013 forward."
After considering this additional briefing, the trial court held a further hearing during jury selection, just a few days before the parties were set to make opening statements. Counsel for the District acknowledged that its briefing concerning the court's requested motion had been "a little ambiguous," and sought to "clarify" that it did indeed seek to question plaintiff concerning "concurrent cause[s] of harm."
Counsel explained that he intended to ask the plaintiff if she was "the victim of a sexual abuse episode" in 2013 but would "not examine her about the details or the specifics of the incident." Counsel acknowledged plaintiff's "right to privacy," but argued that the District has a right "to show alternative causes of that harm."
The trial court, still erroneously referring to sections 1103 and 782 instead of sections 1106 and 783, ruled that the evidence of the 2013 molestation fell outside the scope of any shield statute. The court reasoned that the statutory term "sexual conduct" (which is used in all four statutes) should be understood to cover only voluntary conduct or a "willingness to engage in" such conduct. The court determined the 2013 molestation necessarily reflects "involuntary" conduct, falling outside those sections, because plaintiff was an unwilling "victim of inappropriate sexual behavior." Hence, the court held, the "2013 . . . incident is not . . . sexual conduct within the meaning of" the shield statutes.
Having so concluded, the trial...
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