Metropolitan News-Enterprise


Thursday, September 17, 2015


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C.A. Tosses Verdict in Case Where LAUSD Blamed Student for Sex With Teacher




A teenaged plaintiff whom an attorney for the Los Angeles Unified School District blamed for a sexual relationship with her eighth grade math teacher won a new trial yesterday in a ruling by this district’s Court of Appeal.

Div. Five said Los Angeles Superior Court Judge Lawrence H. Cho committed several prejudicial errors, including misinstructing the jury as to the level of knowledge the district had to have had in order to be liable for negligent supervision, admitting evidence of the plaintiff’s sexual history, and allowing the jury to find comparative fault or consent.

“[C]omparative fault has no application in a case involving the sexual abuse of a minor student by an adult teacher in a position of authority in a public school setting,” Los Angeles Superior Court Judge Richard H. Kirschner, sitting on assignment, wrote for the Court of Appeal.

Media Backlash

The case spawned a media backlash late last year, after jurors voted 10-2 to find that the plaintiff, who as identified only as S.M. and who was 13 years old when the events in question began, was not the victim of negligence by the district. The teacher, Elkis Hermida, was sentenced to three years in prison in 2011 for lewd acts against a child.



In this file photo, Elkis Hermida is seen crying during a news conference.


The district was forced to respond to complaints regarding remarks by its trial counsel, W. Keith Wyatt of Ivie, McNeill & Wyatt.

“She wants to be paid for doing something that she knew was wrong, that she acknowledged was wrong, that she knew was from the beginning,” Wyatt told the jury, adding, “She doesn’t want therapy, she wants money. That’s what they are asking you for.”

In a radio interview after the trial, Wyatt defended the tactic of arguing that jurors should consider the middle school student’s willingness to go to motel rooms to meet the 28-year old teacher for sex.  

“She lied to her mother so she could have sex with her teacher,” Wyatt told KPCC. “She went to a motel in which she engaged in voluntary consensual sex with her teacher. Why shouldn’t she be responsible for that?”

After a torrent of criticism from sex abuse experts, victim advocates, editorialists, and others, Wyatt apologized.

“My statements were ill thought out and poorly articulated and by no means reflect the opinions of the school district or its leadership,” Wyatt said in a written statement. The apology failed to quell the clamor, however, and the district’s general counsel was forced to issue a written statement announcing that Wyatt would no longer handle any cases for the district.

That statement did not address the status of cases already being handled by his firm, but the district disclosed two weeks later that it had hired new counsel in 14 of the 18 cases, and that attorneys at the firm other than Wyatt would handle the remaining four cases.

Instructional Error

Kirschner yesterday said the trial judge erred in giving a modified version of the standard instruction concerning negligent hiring, supervision and training, CACI No. 426.

The standard instruction permits a finding of negligence where the plaintiff proves the employee was “unfit/[or] incompetent” to perform the job, that the employer should have known of the unfitness or incompetence and the risk of harm created thereby, and that the plaintiff was harmed as a result. Cho modified the instruction by substituting “dangerous propensity to sexually abuse minors” for unfitness or incompetency.

That was wrong, Kirschner said, because the use of “propensity” likely misled the jury into thinking that the plaintiff had to prove prior acts of misconduct on the teacher’s part. He cited, among other sources,’s definition of the word as “something that comes naturally to you or something you just do a lot.”

The use of the word, Kirschner said, overstated what the plaintiff had to prove. “Plaintiff was only required to prove that Hermida had the potential to sexually abuse minors, not a ‘propensity’ to do so,” he explained.

The jurist went on to say that the judge used an erroneous legal standard when he admitted evidence of S.M.’s sexual history. The admission of that evidence was “clearly barred by the express language of Evidence Code section 1106, subdivision (a), prohibiting the use of prior sexual history evidence to prove the absence of injury to the plaintiff, with the exception of loss of consortium,” he said.

He rejected the argument that the evidence was admissible because it was offered only on the issue of damages, and not liability. In fact, the student’s sexual history was discussed throughout the trial, while the district argued that there was no evidence of prior misconduct by Hermida, “which had the unfortunate effect of making plaintiff look in some ways more sophisticated than her abuser,” Kirschner said.

The jury, he went on to say, should never have been allowed to consider consent or comparative fault as defenses.

“As the California Supreme Court has made clear in its discussion of minors as the victims of sex crimes, the minor is wronged by the adult’s conduct even if she ‘consents’ to the sexual relationship,” Kirschner said, because the law protects minors and it is the adult’s burden to avoid the relationship.  

This is especially true in the case of a school district, which has a “special relationship” with its pupils and an obligation to protect them even against their own misjudgments. S.M.’s immaturity, he wrote, “was a source of the District’s responsibility to her, not a partial excuse from that responsibility.”

Judge Sandy Kriegler concurred in the opinion.

Presiding Justice Paul Turner concurred separately.

He argued that the modification of CACI No. 426 wasn’t reversible error because plaintiff’s counsel never asked for the modification that his colleagues said should have been made, but he agreed that the other errors cited by Kirschner constituted grounds for reversal.

Attorneys on appeal in S.M. v. Los Angeles Unified School District, B253983, were Frank J. Perez and Miguel G. Caballero of Perez & Caballero, Shea S. Murphy, and Stuart B. Esner and Holly N. Boyer of Esner, Chang & Boyer for the plaintiff and H. Thomas Watson and Karen M. Bray of Horvitz & Levy and Sean A. Andrade of Andrade Gonzalez for the district.


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