JANE S.D. DOE et al.,
S272166
IN THE SUPREME COURT OF CALIFORNIA
July 27, 2023
Second Appellate District, Division Two B313874; Los Angeles County Superior Court BC712514
Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Evans concurred.
JANE S.D. DOE v. SUPERIOR COURT
S272166
Jane S.D. Doe (plaintiff) sued the Mountain View School District (real party in interest, hereinafter the District) to recover for sexual abuse committed by her fourth-grade teacher when she was eight years old. The District, seeking to undermine plaintiff‘s claim for emotional distress damages resulting from the teacher‘s conduct, planned to introduce evidence that plaintiff had been molested a few years later by another person — and that this subsequent molestation caused at least some of plaintiff‘s emotional distress injuries and related damages.
witness credibility, generally) and “not inadmissible pursuant to
Plaintiff filed a pretrial motion seeking to exclude evidence of the subsequent molestation. The trial court ruled that the challenged evidence was (1) not protected by any shield statute, and (2) relevant and admissible with regard to whether plaintiff‘s emotional distress was caused solely by the teacher‘s conduct or by a combination of his conduct and the subsequent molestation. In light of that ruling, both parties referred to the subsequent molestation in their opening statements to the jury. We then stayed the trial and directed the Court of Appeal to issue an order to show cause. The
We conclude that
concerning such a person‘s sexual conduct. And yet, these crucial protections appear not to have been applied in this case. Accordingly, we direct the Court of Appeal to remand the matter to the trial court for further proceedings. Thereafter, the trial court will need to determine whether, assuming the jury remains empaneled, trial with that jury should proceed.
I. FACTS AND PROCEDURE
A. Molestation of Plaintiff by Her Teacher in 2009-2010
Plaintiff is one of six former students suing the District and its former employee, plaintiff‘s teacher, Joseph Baldenebro, concerning sexual abuse committed by Baldenebro. A first amended complaint, filed in October 2020, alleges Baldenebro is “currently in the custody of the California Department of Corrections.” The complaint asserts negligence based on the District‘s hiring and retention of Baldenebro; its supervision of him; its failure to warn, train, and educate against his abuse; and its failure to report his abuse. The complaint also alleges sexual harassment against the District and Baldenebro. (
Through discovery, the District learned that approximately three years after the original abuse by Baldenebro, plaintiff suffered “another sexual incident” in 2013, perpetrated by a “teenaged family friend.” Nothing in the record sheds light on the nature or extent of the 2013 incident.
C. Pretrial Rulings Regarding Admissibility of Evidence Concerning the 2013 Molestation
In May 2021, plaintiff filed a motion in limine invoking
submit a motion seeking to introduce the evidence under ”
The District filed an application as directed, arguing that ”
After considering this additional briefing, the trial court held a further hearing during jury selection, just a few days before the parties were set to make opening statements. Counsel for the District acknowledged that its briefing concerning the court‘s requested motion had been “a little ambiguous,” and sought to “clarify” that it did indeed seek to question plaintiff concerning “concurrent cause[s] of harm.”
Counsel explained that he intended to ask the plaintiff if she was “the victim of a sexual abuse episode” in 2013 but would “not examine her about the details or the specifics of the incident.” Counsel acknowledged plaintiff‘s “right to privacy,” but argued that the District has a right “to show alternative causes of that harm.”
The trial court, still erroneously referring to
Having so concluded, the trial court next proceeded to consider the admissibility of evidence concerning the 2013 molestation under
Regarding witness credibility, the court addressed the District‘s argument that the jury should learn about the subsequent molestation insofar as it relates to plaintiff‘s emotional distress damages. In this respect, the court analogized the 2009-2010 abuse by Baldenebro and the
subsequent 2013 molestation to a situation posed when a litigant is involved in successive automobile accidents, and asserted that “if there‘s a subsequent auto case . . . and the plaintiff is injured and the judge excludes evidence of that, I think it would be reversible error.” The court highlighted some of the issues facing plaintiff in the wake of the molestation by Baldenebro — namely, anger with her parents and “issues with boys.” The court surmised that the “second incident” may have exacerbated these issues and that the District should be
Turning to undue prejudice under
D. Writ Proceedings and Opening Statements at Trial
Immediately after the trial court‘s ruling, counsel for plaintiffs petitioned the Court of Appeal for a writ of mandate ordering the lower court to exclude evidence regarding the 2013 molestation and requested a stay of the trial proceedings pending the appellate court‘s review. In a hearing in the trial court on that same day, the court confirmed that the District would be permitted to “mention” the 2013 molestation in its
opening statement. The Court of Appeal initially granted an immediate stay of the trial later that day, but ultimately denied the writ and dissolved the stay the following day.
On the next court day, plaintiffs’ counsel advised the trial court and the District that he had filed a petition for review in this court and request for an immediate stay. Counsel confirmed that he was “not requesting a stay of this trial” from the trial court and “preserv[ed] our objection to the subsequent sexual abuse incident . . . but in light of the Court of Appeal‘s ruling, we will go forward and we will address that in our opening as well because of the ruling.”
In the ensuing opening statements, counsel for plaintiffs told the jury that his clients would recount “inappropriate behavior” by teacher Baldenebro dating from the early 2000‘s until 2017. Counsel briefly described the conduct each of the six student plaintiffs had experienced with Baldenebro: inappropriate touching, kisses, being made to sit on Baldenebro‘s lap, and feeling a bulge in his pants. But, counsel asserted, “[U]nfortunately [plaintiff] got the worst abuse.” In addition to being subjected to conduct like the others, counsel told the jury, plaintiff also was subjected to Baldenebro making her rub his penis until he ejaculated; inserting his fingers into her vagina; and inserting his penis into her mouth and ejaculating. Further, counsel asserted, Baldenebro admonished plaintiff: “If you ever tell anybody, I‘ll tell them that you let me do this to you.”
counsel acknowledged, when plaintiff first reported Baldenebro‘s conduct to the police, she did not reveal “the entirety of the trauma that she went through.” Finally, counsel impliedly acknowledged that plaintiff‘s psychotherapy treatment records related to the 2013 incident would not mention Baldenebro‘s conduct.
Thereafter, counsel for the District began his opening statement by conceding that “Baldenebro did most of the things claimed by the plaintiffs” and acknowledging, “Baldenebro caused the plaintiffs emotional distress, and as I‘ve said from the outset, the District has already admitted it was negligent and . . . should have supervised him better.” The issue before the jury, counsel for the District asserted, is the extent to which the District caused each plaintiff‘s harm. Counsel previewed the events that all six student plaintiffs allege occurred with respect to each of them, and the corresponding asserted emotional injuries of each. With regard to five of the six student plaintiffs, counsel generally conceded that their allegations established some level of depression and resulting psychological harm, but pointed out that in most instances other unrelated stressors — such as dealing with a sibling‘s drug abuse, a brother‘s death, a father‘s incarceration, or anxiety caused by being a new mother — contributed in some manner to each plaintiff‘s cumulative psychological harm.
Counsel for the District then turned to plaintiff and observed that she is “the only one who makes” more “graphic allegations.” Counsel asserted that when plaintiff, at the age of 18, became aware of Baldenebro‘s arrest, she reported his abuse to the sheriff‘s department, where she was interviewed by a female deputy. At that time, counsel told the jury, plaintiff
“didn‘t say anything about” the more graphic allegations described by her trial counsel.
Counsel for the District next stated that plaintiff “underwent therapy from October 2016 to April 2017” but during those sessions “never mention[ed] or stat[ed] anything about Baldenebro.” Moreover, counsel asserted, when plaintiff resumed therapy in April 2019, and at that time mentioned “abuse by a school teacher,” she did not describe any graphic conduct like that highlighted by her counsel.
Counsel for the District told the jury that discovery showed that plaintiff stated, under oath, that she attributes her emotional distress to “the abuse and conduct [of] Baldenebro” in the “2009-2010 time frame.” Counsel then addressed the evidence concerning the 2013 molestation: “[C]ompletely unrelated to this, and tragically in 2013[,] she was sexually molested and
Counsel concluded by telling the jury that the District‘s psychiatrist expert interviewed plaintiff five months earlier for “three hours . . . and diagnosed [plaintiff] with posttraumatic stress disorder, PTSD. [The District‘s psychiatrist] believes it was caused by the unrelated 2013 sexual abuse incident and by Baldenebro. Both.” And so, counsel argued, Baldenebro is indeed part of the cause of plaintiff‘s emotional distress, but “it‘s a whole other stressor going on in this life that was traumatic
and awful that she experienced unrelated to [the District] and Baldenebro.”
After opening statements, four of the witnesses for the student plaintiffs and the other claimants testified. Before trial resumed the next morning, this court, acting in connection with plaintiff‘s then-pending petition for review, stayed further trial proceedings. Two days later, we granted the petition for review and immediately transferred the matter back to the Court of Appeal with directions to issue an order to show cause. The Court of Appeal expeditiously did so. The trial court then advised the jury that the matter had been stayed, but admonished: “You are still jurors in this case” and would be advised “when proceedings do resume and when you will be required to appear . . . for [resumption of] this trial.”
E. Proceedings in the Court of Appeal
The Court of Appeal continued our stay of trial proceedings and obtained further briefing. The District did not defend the trial court‘s view that the evidence failed to qualify as “sexual conduct” under what the District belatedly acknowledged as the relevant statutes,
In its opinion denying plaintiff‘s petition for a writ of mandate, the Court of Appeal held that the trial court erred in referring to inapplicable
plaintiff‘s voluntary conduct and sexual abuse to which a plaintiff has been involuntarily subjected; hence, admission of the
Having construed the record and the trial court‘s ruling in this manner, the Court of Appeal proceeded to address the
Plaintiff and the other claimants filed a second petition for review, which we granted.
II. GENERAL AND STATUTORY BACKGROUND
In order to understand and place into perspective the key statutes at issue here —
Early California statutes and decisions concerning criminal prosecutions for rape evinced considerable solicitude toward the accused and skepticism regarding the alleged victim.3 Relatedly, courts permitted defendants to
relations] voluntarily in the past would be much more likely to consent, than one whose past reputation was without blemish, and whose personal conduct could not truthfully be assailed.” ’ ” (Id. at pp. 262-263, quoting People v. Johnson (1895) 106 Cal. 289, 293.)
In 1981, our Legislature, apparently spurred by then-recent corresponding federal reforms,5 amended
amended statute provided an exception: “This subdivision does not make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in
Most recently, and directly relevant here, in 1985 our Legislature enacted civil law reforms extending the above-described protections afforded by the criminal rape shield statutes to the civil context. (Stats. 1985, ch. 1328, § 1, p. 4654.) The legislation, Senate Bill No. 1057 (1985-1986 Reg. Sess.), added
adjudications, and imposing substantially similar limitations on discovery concerning sexual conduct and on admission of such evidence).7
Within Senate Bill No. 1057 (1985-1986 Reg. Sess.), our Legislature set out to clarify, in uncodified section 1 of its enactment, its purpose and the policy it sought to achieve. It recounted that prior to the amendment of
echoing the then-recent federal court decision in Priest, supra, 98 F.R.D. at page 762, the Legislature concluded: “[T]he use of evidence of a complainant‘s sexual behavior is more often harassing and intimidating than genuinely probative, and the potential for prejudice outweighs whatever probative value that evidence may have.
III. DISCUSSION
Preliminarily, we observe that the threshold issue addressed by the Court of Appeal — determining that, contrary to the trial court‘s understanding, the term “sexual conduct” as used in
As explained below, we conclude that
limit introduction of evidence concerning that person‘s sexual conduct.
A. Does Section 1106, Subdivision (e), Allow Admission of the Same Evidence Prohibited Under Subdivision (a) To Attack the Credibility of a Witness‘s Testimony as it Relates to Apportionment of Injury in the Calculation of Damages?
As noted earlier,
In turn,
plaintiff.8 Next,
Viewing this scheme as adopted in 1985 as a whole and giving full effect to all of its words and parts (Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190), it is clear that
same evidence” of a victim‘s sexual conduct may be admitted — when relevant under
1. The appellate opinion in Rioz provides guidance
In considering these objections to the appellate court‘s interpretation of the statutory language, we find an early Court of Appeal opinion addressing the criminal statutory counterpart,
People v. Rioz (1984) 161 Cal.App.3d 905 (Rioz), which was decided a few months before the bill that enacted the 1985 corresponding civil legislation was first introduced, recognized the tension within the statutory scheme created by
In Rioz, supra, 161 Cal.App.3d 905, it was alleged that the defendants raped the victim. The defendants asserted the victim had agreed to have sex with them for pay, and at trial sought to introduce evidence that the victim had been convicted of prostitution “as well as certain aspects of her activities as a prostitute.” (Id. at p. 914.) The trial court excluded the evidence under what is now subdivision (c)(1) of
The appellate court began by commenting: “There is necessarily a certain amount of overlap between the issues of the victim‘s consent in a rape or other sex offense case and the victim‘s credibility. Presumably, any complaining witness in a rape case will deny consent to the sexual acts complained of; to avoid the harassment which had traditionally plagued complaining witnesses in cases of this type, the Legislature excluded evidence of prior sexual activity by the complaining witness with persons other than the defendant in order to prove consent.” (Rioz, supra, 161 Cal.App.3d at p. 916.) The court observed that under what is now subdivision (c)(1) of
Nevertheless, the Court of Appeal in Rioz recognized that what is inadmissible under what is now subdivision (c)(1) of
The court in Rioz explained: “It is significant that the express provisions of . . .
The appellate court in Rioz concluded: “This discretion in the trial court, along with the other safeguards inherent in . . .
Finally, the Court of Appeal in Rioz cautioned that ”
The District extracts the following lesson from Rioz: “Just as there is necessarily a certain amount of overlap between a criminal complainant‘s or a civil plaintiff‘s consent in a criminal or civil sexual assault case and her credibility, there is necessarily a certain amount of overlap between the issues of a civil plaintiff‘s [emotional distress] damages and her credibility. To be sure, there will be some overlap between [plaintiff‘s emotional distress] damages and her credibility. . . . Thus, once a defendant makes a sworn offer of proof concerning the relevance of the sexual conduct to attack the plaintiff‘s credibility,” the protection afforded by
Indeed, this is ultimately the understanding arrived at by the Court of Appeal below. The appellate court observed that corresponding key parts of the 1985 legislation —
The Court of Appeal conceded that plaintiff‘s restrictive view of the statutory scheme — under which the exception articulated in
We agree, as recognized in Rioz, supra, 161 Cal.App.3d 905 and by the Court of Appeal below, that there is inherenttension within the criminal (§§ 1103, 782) and civil (§§ 1106, 783) shield provisions. The tension within the criminal provisions was highlighted soon after the Legislature enacted the original version of
2. Sections 1106, subdivision (e) and 783 address overall witness credibility — not exclusively false testimony
Plaintiff also suggests in her opening brief that evidence admissible under
In any event, such a narrow reading of the statutes is not supported by the language of
We perceive nothing in the statutory language that purports to limit the credibility exception as plaintiff suggests.Instead, we read the scheme as contemplating that in appropriate and limited circumstances, admission of “other sexual conduct” evidence may indeed be warranted under
3. Legislative history does not alter, but supports, this interpretation
To the extent the statutory language might be deemed ambiguous in this respect, nothing in the legislative history calls into question this interpretation. A key analysis prepared by the Senate Committee on the Judiciary revealed an understanding and intent not to completely or categorically bar such evidence, but instead, simply to extend the Legislature‘s earlier reforms governing criminal prosecution of sexual assault crimes to the civil arena. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1057 (1985-1986 Reg. Sess.) as introduced Mar. 7, 1985, pp. 1-2 (hereinafter Senate Committee Analysis).) The objective was to prevent ”unjustified inquiry into the prior conduct of sexual harassment complainants,” not to foreclose all inquiry entirely. (Id. at p. 2, italics added.) The committee analysis described the proposed legislation, and what eventually was enacted as
B. Did the Court of Appeal Properly Determine That the Trial Court Essentially Complied with Section 783 ?
As observed earlier, the Court of Appeal acknowledged the trial court‘s key errors with respect to
As a preliminary matter, it is apparent from the record that the trial court, having invested considerable resources over nine days in the midst of the COVID-19 pandemic in the challenging task of selecting 12 jurors and eight alternate jurors, was understandably and indeed admirably focused on expeditiously resolving numerous pretrial matters in order to proceed with trial. But having erroneously found no shield statute to be applicable, the trial court neglected to focus on, and benefit from, the key procedural and structural protections set out in
The trial court did not hold a more robust “hearing out of the presence of the jury,” at which it would ”allow the questioning of the plaintiff regarding the offer of proof made by the defendant.” (
The Court of Appeal acknowledged that there had been no such questioning of plaintiff, but reasoned that the parties must have been aware of — and waived — that statutory right and thus were not prejudiced. (Doe, supra, 71 Cal.App.5th at p. 241.)13 We disagree with the appellate court‘s analysis. The initial issue at the trial court‘s in limine hearing was the applicability of the shield law. Once the court found the shield law inapplicable, the parties had no reason or clear mechanismto invoke their right to question plaintiff under that law. The Court of Appeal erred in construing their failure to do so as a waiver. 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. (Doe, at p. 232.)
2. Failure to make an order stating what evidence may be introduced by the District and the nature of the questions to be permitted
The trial court also failed to properly undertake to “make an order stating what evidence may be introduced by the defendant, and the nature of the
The record and briefing reflect a related problem flowing from the trial court‘s failure to pin down what evidence may be introduced and what questions may be asked regarding the evidence concerning the 2013 molestation. These omissions in turn allowed the District to repeatedly change its legal reasoning supporting relevance and admission of that evidence. In the absence of any structured focusing and narrowing, the District‘s legal arguments throughout this litigation have been an evolving target: (1) In the trial court, the District initially asserted that it had no plan “to use the 2013 molestation evidence to ‘attack the credibility’ of [plaintiff]” for impeachment purposes. Still, the District maintained, that molestation evidence is relevant “to establish an alternative explanation for [plaintiff‘s] psychological harm and condition,” and “[t]he 2013 incident . . . may be the cause of harm from 2013 forward.” (2) In the hearing on its “section 782” motion, the District sought to clarify that it did indeed seek to question plaintiff in order to impeach her anticipated testimony concerning “concurrent cause[s] of harm.” But, counsel for the District assured the trial court, he intended to ask plaintiff simply if she was “the victim of a sexual abuse episode” in 2013 — and no more. (3) The trial court apparently understood the District as seeking to admit evidence concerning plaintiff‘s 2013 molestation as relevant concerning only damages and via a single minimally invasive question. And yet the District‘s opening statement before the jury was much more expansive, encouraging the panel to use the evidence of the 2013 molestation to question the credibility of petitioner‘s description of the specific abuse by Baldenebro in 2009-2010. (4) Now, further expanding on the theme suggested in its opening statement to the jury, in its answer brief filed in this court, the District explains that it seeks to attack plaintiff‘scredibility by additionally arguing that the 2013 molestation caused her “chronic PTSD” and that this in turn has led plaintiff to exaggerate her claims about what Baldenebro did to her. In this regard, the District argues: “If what [plaintiff] claims happened with Baldenebro did not actually happen because the 2013 trauma caused her to misremember or unintentionally exaggerate the details, then her damages for what may actually have occurred would be less.” In other words, the District now asserts, the ”
Although, as noted, the Court of Appeal characterized the trial court as allowing the evidence for “impeachment purposes only” (Doe, supra, 71 Cal.App.5th at p. 235; see also id. at p. 241), the record before the trial court gives no indication that it had in mind, and weighed or considered, the District‘s evolved and expansive understanding of the relevance and use of the 2013 molestation for any such impeachment.
Had the trial court thoroughly followed the procedures set out in
For these reasons, we disagree with the Court of Appeal‘s conclusion that the trial court essentially undertook a proper inquiry and analysis “as statutorily required” (Doe, supra, 71 Cal.App.5th at p. 235) under
C. Should We Nevertheless Affirm the Trial Court‘s Finding That the Challenged Evidence Is Admissible Under Section 352 ?
The District urges us to uphold the Court of Appeal‘s determination that the trial court ultimately properly exercised its discretion under
First, as indicated above, the record was not developed in accordance with the procedures contemplated by
Second, and somewhat related to the above-described record problem, the District‘s evolved and expanded position concerning the relevance and use of
Finally, even if we were to ignore the District‘s new theory of relevance concerning impeachment and instead confine ourselves (as the Court of Appeal appears to have done) to assuming that the trial court considered and approved the evidence regarding the 2013 molestation solely for purposes of impeachment of plaintiff related exclusively to her anticipated apportionment of 100 percent of her emotional distress damages to the Baldenebro abuse, on this record we would not be able to agree with the appellate court‘s affirmance of the trial court‘s
As we observed in Fontana, supra, 49 Cal.4th 351 (regarding the original rape shield statutes, §§ 1103 and 782), it is proper for a trial court to take into account, when ” ‘determining the amount of unfair prejudice’ ” under
These principles — highlighted in Fontana, supra, 49 Cal.4th 351 and embraced in the aforementioned criminal cases — operate with at least equal force when, as here, a court must apply
And yet the record does not indicate that the trial court approached its analysis concerning prejudicial effect under
As a general matter,
But
Of course, multiple interests are implicated in this context. A defendant has a right to a fair adjudication and to counter a plaintiff‘s evidence. And a complainant has a right to privacy and freedom from harassment.
In light of our understanding of
IV. CONCLUSION
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
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.