D.Z. v. L. A. Unified Sch. Dist., 35 Cal. App. 5th 210

Background

Plaintiff (D.Z.) sued LAUSD for negligent supervision after her teacher, James Shelburne, allegedly sexually abused her in 2010 (touching, pressing genitals, photographing students); she dismissed individual defendants and proceeded against LAUSD only.
MLHS was a small continuation school with close student‑teacher interaction; several students and staff had complained about Shelburne’s touching, comments, and conduct between 2007–2010.
In 2009 students reported a crude sexual comment by Shelburne that prompted a school note/SCAR and an investigation; the court excluded evidence of the substance of that comment at trial.
Appellant presented expert testimony that grooming and non‑touching sexualized conduct are relevant indicia of a risk of sexual abuse and that LAUSD had notice as early as 2009; defense experts supported the district’s response.
The jury found LAUSD not liable, answering “no” to whether Shelburne posed a risk of sexual abuse; the Court of Appeal reversed, holding the trial court abused its discretion by excluding non‑touching evidence and that the error was prejudicial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion of evidence other than physical touching (motions in limine)	Excluded evidence (sexual comments, offers of rides, photos, grooming behavior) was relevant to foreseeability/notice and should be admitted.	Evidence was irrelevant or prejudicial under Evid. Code §352 because only physical touching directly bears on the claim.	Reversed: court abused discretion by excluding all non‑touching sexualized conduct; some of that evidence was relevant to foreseeability/notice and exclusion was prejudicial.
Jury instructions CACI Nos. 3701 and 3703 (vicarious liability phrasing)	Instructions were unnecessary and misleading; they improperly limited or singled out only the current principal rather than all administrators implicated.	Instructions were proper form language identifying the agent.	Held error: instructions were unnecessary, potentially confusing, and misframed the scope of plaintiff’s claim (should reflect multiple administrators).
CACI No. 426 wording (requiring that employee "posed a risk of sexual abuse")	Language improperly required proof of prior identical sexual misconduct or too narrow a standard instead of general unfitness.	Language appropriately specified the particular risk at issue (foreseeability of sexual abuse) consistent with model instruction.	No error: phrasing was appropriate to identify the particular foreseeable risk and did not require identical prior misconduct.
Excluding plaintiff’s rebuttal witness to impeach teacher’s trial claim about inability to have erections	Plaintiff needed to rebut a new factual claim raised by teacher at trial; rebuttal evidence should have been allowed.	Admission was unnecessary or untimely; trial court properly excluded rebuttal.	Not reached on merits (moot) because reversal for evidentiary exclusion requires retrial; court did not decide this issue.

Key Cases Cited

C.A. v. William S. Hart Union High Sch. Dist., 53 Cal.4th 861 (California Supreme Court) (schools owe duty to supervise and may be liable when they know or should know of foreseeable risk of sexual abuse)
Dailey v. Los Angeles Unified Sch. Dist., 2 Cal.3d 741 (California Supreme Court) (schools’ protective duty of ordinary care toward students)
M.W. v. Panama Buena Vista Union School Dist., 110 Cal.App.4th 508 (Court of Appeal) (foreseeability analysis may rest on circumstances that indicate a general risk, not identical prior events)
People v. Fuiava, 53 Cal.4th 622 (California Supreme Court) (appellate review of discretionary evidentiary rulings — abuse of discretion standard)
College Hospital, Inc. v. Superior Court, 8 Cal.4th 704 (California Supreme Court) (standard for "reasonable probability" harmless‑error review)
Lopez v. Watchtower Bible & Tract Society of New York, Inc., 246 Cal.App.4th 566 (Court of Appeal) (negligent hiring/retention requires proof employer knew or had reason to believe employee likely to engage in sexual abuse)
Phillips v. TLC Plumbing, Inc., 172 Cal.App.4th 1133 (Court of Appeal) (employer negligence where hiring created a particular foreseeable risk)