35 Cal.App.5th 210
Cal. Ct. App.2019Background
- Plaintiff (D.Z.), a former MLHS student, alleged sexual abuse by teacher James Shelburne in 2010 (hugging, rubbing, pressing genitals, touching buttocks) and sued LAUSD for negligent supervision/retention; individual defendants and respondeat superior claims were dismissed before trial.
- MLHS is a small continuation high school where teachers have closer relationships with students; several students and staff reported prior inappropriate conduct by Shelburne (patting, hugging, leering, suggestive comments, Facebook photos, alleged offers of rides), and school principals testified about school practices and prior complaints.
- In 2009 students complained about a crude sexual comment by Shelburne that prompted a principal’s note and some form of follow-up; additional complaints about touching and other conduct surfaced in October 2010 and led to a SCAR and Shelburne’s removal from campus and eventual retirement.
- Before trial LAUSD moved in limine to exclude evidence of Shelburne’s misconduct that did not involve physical touching; the trial court granted a bright-line exclusion of all non-touching evidence and admitted only touching-related evidence.
- After a two-week trial the jury found LAUSD not liable (10–2 on whether Shelburne posed a risk of sexual abuse). The Court of Appeal reversed, holding the exclusion of non-touching evidence was an abuse of discretion and prejudicial; it remanded for a new trial and addressed certain instruction issues for guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of non-touching misconduct under Evid. Code §352 | Excluded non-touching evidence (sexual comments, grooming, photos, offers of rides) was relevant to foreseeability/notice and to show an escalating pattern; exclusion was arbitrary and prejudicial | Evidence was irrelevant or discovered only after the incident and prejudicial under §352; only touching evidence mattered | Reversed: court abused discretion in excluding all non-touching evidence; some excluded evidence was relevant to foreseeability/notice and the exclusion was prejudicial enough to require retrial |
| Pretrial motions in limine (scope and application) | Motions improperly drew a bright line barring evidence relevant to notice and grooming; prevented full presentation | Motions were proper to avoid unfair prejudice and confusion; limited the case to physical touching evidence | Court’s bright-line rulings were arbitrary; exclusion exceeded permissible §352 balancing and distorted trial evidence; reversal required |
| Jury instructions (CACI Nos. 3701, 3703, 426) | CACI 3701/3703 (vicarious liability) unnecessary and misleading when modified to name only one administrator; CACI 426 should not reframe ‘‘unfitness’’ as requiring prior identical sexual misconduct | Modifications clarified the agent and focused the claim; instruction language was proper | Court: 3701/3703 as given were unnecessary and potentially confusing and should have reflected all relevant administrators; CACI 426 language ("posed a risk of sexual abuse") was appropriate and not reversible error |
| Exclusion of rebuttal witness (re: Shelburne’s erectile dysfunction claim) | Plaintiff should have been permitted rebuttal to newly raised trial claim | Defense objected as improper impeachment/rebuttal procedure | Moot on appeal (trial reversed for other reasons); court declined to decide because reversal resolved outcome |
Key Cases Cited
- C.A. v. William S. Hart Union High Sch. Dist., 53 Cal.4th 861 (school districts may be liable for negligent supervision/retention where employees knew or should have known of a foreseeable risk to students)
- Dailey v. Los Angeles Unified Sch. Dist., 2 Cal.3d 741 (schools owe a protective duty of ordinary care to students)
- M.W. v. Panama Buena Vista Union School Dist., 110 Cal.App.4th 508 (foreseeability of sexual harm may be shown by circumstances short of identical prior events)
- People v. Fuiava, 53 Cal.4th 622 (standard of appellate review for evidentiary rulings under §352)
- Cassim v. Allstate Ins. Co., 33 Cal.4th 780 (standard for prejudice review under Watson)