California Supreme Court:
Caution Required in Admitting Sexual-Abuse Evidence
Guerrero Says Evidence That Woman Suing School District Over Teacher’s Alleged Misconduct Was Subjected to
Abuse by Another at a Later Time Might Be Used for Impeachment, but Only After Especially Careful Weighing
By a MetNews Staff Writer
The California Supreme Court, in a rare move, yesterday interceded in a trial in progress, holding that an action by a woman based on alleged sexual abuse by her fourth grade teacher in 2010 and 2011, it might be permissible to present evidence of abuse in 2013 by someone else to minimize damages against the defendant school district, but that the trial court must apply an “especially careful review and scrutiny” of the circumstances.
Chief Justice Patricia Guerrero wrote for a unanimous court in reversing an Oct. 29, 2021 decision by Div. Two of this district’s Court of Appeal denying a petition for a writ of mandate to bar the evidence. The petition was brought by “Jane S.D. Doe,” one of six plaintiffs in an action against the Mountain View School District in the San Gabriel Valley.
Justice Brian M. Hoffstadt wrote the Court of Appeal opinion. It says that Los Angeles Superior Court Judge Mary Ann Murphy did not abuse her discretion in determining, pursuant to Evidence Code §352, that the probative value—to contradict Doe’s anticipated testimony attributing all of her emotional distress to the district’s alleged negligent hiring, retention and supervision of the teacher—outweighs the prejudicial value of admitting the evidence.
He specified that evidence of the 2013 molestation could be used only for impeachment purposes. His opinion directed that on remand, the Superior Court was 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.”
Evidence Code Sections
Guerrero’s opinion discusses, as Hoffstadt’s did, the interplay between §1106, §783, and §352 of the Evidence Code. Sec. 1106(a) generally bars admission of “evidence of specific instances of the plaintiff’s sexual conduct” in civil cases, but subd. (e) says: “This section shall not be construed to make inadmissible any evidence offered to attack the credibility of the plaintiff as provided in Section 783.”
Sec. 783 provides that “[i]n any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, if evidence of sexual conduct of the plaintiff is offered to attack credibility of the plaintiff,” the defendant must set forth in a written motion what evidence is proposed to be offered. If the offer of proof is sufficient, the section says, the judge must hold a hearing to determine if the evidence would be admissible under §352 which reads:
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The chief justice wrote:
“[W]e 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, together with careful review and scrutiny under section 352. The Legislature devised section 783 to identify and circumscribe evidence that may be admitted to attack a sexual assault plaintiff’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 limit introduction of evidence concerning that person’s sexual conduct.”
Hearing Wasn’t ‘Robust’
While Hoffstadt observed that Murphy “conducted a hearing as statutorily required” and “engaged in a section 352 analysis that looked to the factors pertinent to impeachment,” Guerrero declared that the hearing was not sufficiently “robust.” She pointed out that §783(c) says that the court must “allow the questioning of the plaintiff regarding the offer of proof made by the defendant.”
Guerrero did not say that Murphy refused to allow such questioning, but said that she was obliged to “prompt” the parties to present testimony by Doe concerning conduct of the teacher, Joseph Baldenebro, and the 2013 abuse.
Hoffstadt’s opinion expresses this view:
“There is nothing to indicate that either party was denied its statutory right to question the plaintiff at the hearing….The parties were aware of this right…, yet opted not to question plaintiff.”
The chief justice said:
“We disagree with the appellate court’s analysis.”
No Clear Path
Murphy had reasoned that the general bar in §1106(a) to admission of “evidence of specific instances of the plaintiff’s sexual conduct” meant voluntary sexual conduct, but nonetheless proceeded to conduct an analysis under §352. Guerrero said that once Murphy articulated the view that §1106(a) was inapplicable, “the parties had no reason or clear mechanism to invoke their right to question plaintiff” as provided in §783(c).
She did not explain why, once a hearing commenced, the defense was deterred from calling Doe to the stand.
The chief justice said that “[t]he Court of Appeal erred in construing” the parties’ failure to call the plaintiff as a witness “as a waiver,” adding:
“Moreover, it is not apparent why the parties would have waived such an opportunity to flesh out the record. Nor is it evident why the trial court failed to prompt the parties to take advantage of the statutory procedure in order to achieve clarity in these crucial respects. But precisely because there was no such elucidation on the record, the Court of Appeal found itself forced to fill the gaps: The appellate court found it necessary to assume that in fact plaintiff will testify that 100 percent of her emotional distress damages is attributable to the 2009–2010 Baldenebro abuse and none to any other factor, including the 2013 molestation.”
She said it cannot be concluded “on this record, as the Court of Appeal did, that the trial court properly exercised its discretion in finding the evidence regarding the 2013 molestation to be admissible under section 352.”
The dispositional paragraph of the opinion says:
“We reverse the judgment of the Court of Appeal and remand with directions that it remand to the trial court to undertake proper proceedings under Evidence Code sections 1106 and 783. If, in the course of those future proceedings, the District attempts to advance its evolved and expansive arguments regarding the relevance and use of the evidence concerning the 2013 molestation for impeachment, the trial court will have an opportunity to consider that issue as well. In any event, we expect the trial court to engage in the structured focusing and narrowing contemplated by section 783, and, if after further consideration it allows evidence concerning the 2013 molestation, to specify what evidence may be introduced and what questions may be asked, thus clarifying what may be presented to the jury. Thereafter, if the previously empaneled jury remains constituted (as we were informed at oral argument it does), the trial court will be expected to proceed as appropriate in that regard.”
The case is Doe v. Superior Court (Mountain View School District), 2023 S.O.S. 2700.
Doe was represented by Luis A. Carrillo, Michael S. Carrillo, Laura M. Jimenez of the Carrillo Law Firm of South Pasadena; Ronald T. Labriola of The Senators (Ret.) Firm in Irvine; and by Stuart B. Esner, Holly N. Boyer and Kevin K. Nguyen of the Pasadena firm of Esner, Chang & Boyer. Attorneys on appeal for the school district were Jeffry A. Miller, Lann G. McIntyre, Dana Alden Fox, Gregory M. Ryan, Edward E. Ward, Jr., and Wendy S. Dowse of various offices of Lewis Brisbois Bisgaard & Smith.
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