Jane Doe v. Superior Court of L. A. Cnty.

• Decision Date: 29 October 2021
• Docket Number: B313874
• Citation: Jane Doe v. Superior Court of L. A. Cnty., 71 Cal.App.5th 227, 286 Cal.Rptr.3d 204 (Cal. App. 2021)
• Parties: Jane DOE et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Mountain View School District, Real Party in Interest.
• Court: California Court of Appeals

71 Cal.App.5th 227

286 Cal.Rptr.3d 204

Jane DOE et al., Petitioners,

v.The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

Mountain View School District, Real Party in Interest.

B313874

Court of Appeal, Second District, Division 2, California.

Filed October 29, 2021

Carrillo Law Firm, Luis A. Carrillo, Montebello, Michael S. Carrillo, South Pasadena, Laura M. Jimenez ; The Senators (Ret.) Firm, Ronald T. Labriola, Invine; Esner, Chang & Boyer, Stuart B. Esner, Los Angeles, and Holly N. Boyer, Pasadena, for Petitioners.

No appearance for Respondent.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Lann G. McIntyre, San Diego, Dana Alden Fox, Gregory M. Ryan, Edward E. Ward Jr., and Wendy S. Dowse, Los Angeles, for Real Party in Interest.

HOFFSTADT, J.

A young woman sued a school district for negligently supervising the fourth-grade teacher who molested her in 2010 and 2011. Prior to trial, the district sought to introduce evidence that the woman had been sexually abused by someone else in 2013. The trial court admitted the evidence in part, reasoning that (1) the evidence fell outside of the scope of Evidence Code sections 1106 and 783¹ because those statutes regulate the admission of "the plaintiff's sexual conduct," which the court ruled did not include being involuntarily subjected to sexual abuse, and (2) admitting the evidence was proper, ostensibly to impeach the plaintiff, under section 352 because its probative value to contradict her anticipated testimony attributing all of her emotional distress to the teacher's molestation was not substantially outweighed by the danger of undue prejudice. To resolve the woman's petition for writ of mandate challenging this ruling, we must confront the question: Does the term "plaintiff's sexual conduct" in sections 1106 and 783 (as well as Code of Civil Procedure section 2017.220 ) encompass sexual abuse to which a plaintiff has been involuntary subjected as well as the plaintiff's voluntary sexual conduct? We conclude that the answer is yes. Because section 783 requires a trial court, after following certain procedures, to engage in a section 352 analysis identical to the one the trial court undertook, we must also confront the question: Did the trial court abuse its discretion in finding that the probative value of the subsequent sexual abuse was not outweighed by the danger of undue prejudice? We conclude that the answer is no. Accordingly, we deny the writ petition and dissolve the stay of the trial proceedings, but instruct the trial court to either assess any prejudice flowing from the empaneled jury's exposure to the mentioning of the 2013 incident during opening statements, or begin the trial with a new jury.

FACTS AND PROCEDURAL BACKGROUND

I. Plaintiff's Complaint

S.D. (plaintiff) is one of several plaintiffs suing the Mountain View School District (the District). While plaintiff was a fourth-grade student at one of the District's elementary schools during the 2010-2011 school year, her teacher—Joseph Baldenebro—molested her. Plaintiff is suing the District for (1) negligence due to its (a) negligent hiring and retention of Baldenebro, (b) negligent supervision of him, (c) negligent failure to warn, train, and educate against his abuse, and (d) negligence per se in not reporting his abuse, and (2) sexual harassment ( Civ. Code, § 51.9 ).² Among other things, plaintiff is seeking compensation for the "physical, mental, and emotional damages and injuries resulting from the sexual harassment."

II. Discovery

In response to discovery propounded by the District, the District learned that plaintiff had been "sexually molested" by a "teenage family friend" in 2013. The molestation inflicted "emotional and psychological trauma" upon plaintiff for the next several years, severe enough that she sought out "medical" and psychological treatment in 2016.

III. Pretrial Rulings on Admissibility of 2013 Molestation

In May 2021, plaintiff filed a motion in limine to exclude evidence of her "sexual history with persons other than" Baldenebro; her motion cited sections 1106 and 352.

At a pretrial hearing on July 19, 2021, the trial court shared its preliminary view that section 1106 may not bar admission of the 2013 molestation because section 1106 "[t]ypically ... relates to voluntary sexual activity." The court nevertheless invited the District to submit a motion seeking to admit the evidence for impeachment purposes under section 783.³

On the same day as the hearing, the District filed its 783 motion. Although the motion indicated that the District sought to admit evidence of the 2013 molestation "to establish an alternative explanation for [plaintiff's] psychological harm and condition" rather than to " ‘attack [plaintiff's] credibility,’ " the District nevertheless moved to admit evidence of the 2013 molestation under section 783 —and hence for impeachment purposes—"out of an abundance of caution."

After additional briefing, the trial court held a further hearing during jury selection and before opening statements. The trial court ruled that the admissibility of evidence regarding the 2013 molestation was not governed by either section 1106 (as urged by plaintiff in her motion in limine) or section 783 (as suggested by the court). In so ruling, the court reasoned that those sections govern the admissibility of a victim's "sexual conduct," that "sexual conduct" must reflect voluntary sexual conduct or a "willingness to engage in sexual conduct," and that the 2013 molestation was necessarily "involuntary" because plaintiff was "a victim of inappropriate sexual behavior." Finding no need to apply the special analysis set forth in sections 1106 or 783, the court proceeded to analyze the admissibility of the 2013 molestation under the general rules governing relevance, including section 352. In this regard, the court found the 2013 molestation to be "highly and directly relevant" to whether plaintiff's emotional distress was caused solely by Baldenebro's conduct (for which the District was to be held responsible) or caused by a combination of his conduct and the 2013 molestation because both the 2010-2011 molestation and the 2013 molestation involved the "[s]ame conduct" and the "[s]ame injury" and because the 2013 molestation "undoubtedly added to [plaintiff's] damages." The court found that this significant probative value was "not substantially outweighed by the probability that its admission will necessitate undue consumption of time, create[ ] substantial danger of undue prejudice, confuse the issues, or mislead the jury" because the District planned to elicit the 2013 molestation through "minimally invasive" questioning of plaintiff and the opinion of an expert witness as to its impact.

IV. Writ Proceedings

On July 29, 2021, the day after the ruling, plaintiff petitioned this court for a writ of mandate ordering the trial court to exclude evidence of the 2013 molestation and requested a stay of the trial proceedings pending our review of the trial court's evidentiary ruling. We granted a stay, but ultimately denied the writ (and dissolved the stay) on July 30, 2021.

The next court day, the parties made opening statements to the jury. After the court ruled that the District could mention the 2013 molestation in its opening statement, plaintiff mentioned the molestation in her opening statement. In its opening statement, the District stated that plaintiff's mental distress was "caused" "both" "by the ... 2013 sexual abuse incident and by Baldenebro."

Plaintiff petitioned the California Supreme Court to review our denial of her writ and to stay the trial court proceedings. The Supreme Court issued a stay of proceedings on August 3, 2021, and then on August 9, 2021, granted the petition for review and remanded the matter to this court to issue an order to show cause. We did so, continued the stay of trial proceedings issued by the Supreme Court, and obtained further briefing and argument, and now issue this opinion.

DISCUSSION

In her writ petition, plaintiff challenges the trial court's pretrial evidentiary ruling allowing the District to introduce evidence of the 2013 molestation. This challenge presents two questions on the merits: (1) Did the trial court err in ruling that section 1106 and section 783 do not apply to sexual conduct that is involuntary, and (2) Did the trial court abuse its discretion in concluding that the probative value of this evidence was not substantially outweighed by the dangers of unfair prejudice? It also presents a question of remedy.

As a threshold matter, however, we address the parties’ competing claims of waiver.

The District has argued that plaintiff has waived any right to press her challenge to admitting the 2013 molestation because plaintiff mentioned it during her opening statement to the jury after we ruled but before the Supreme Court intervened. Because the plaintiff's decision to do so was a tactically reasonable response to try to make the best of the trial court's adverse ruling by "fronting" evidence that would be devastating if it first came from the opposing side, there was no waiver. ( Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213, 285 Cal.Rptr. 99, 814 P.2d 1341 [" ‘ "An attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which [s]he was not responsible" ’ "].)

Conversely, plaintiff argues that the District has waived the right to argue that the 2013 molestation is admissible under section 783 to impeach plaintiff because the District repeatedly disavowed to the trial court any intention to use the evidence for impeachment. Although the District's focus was certainly on admitting the 2013 molestation as substantive evidence under section 1106, and although the District repeatedly (and accurately) noted that section 782 was...