K.M. et al., Plaintiffs and Appellants, v. GROSSMONT UNION HIGH SCHOOL DISTRICT, Defendant and Respondent; K.M. et al., Plaintiffs and Respondents, v. GROSSMONT UNION HIGH SCHOOL DISTRICT, Defendant and Appellant.
D075957, D076833 (Super. Ct. Nos. 37-2015-00004806-CU-PO-CTL, 37-2015-00031982-CU-PO-CTL, 37-2016-00006248-CU-PO-CTL)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, STATE OF CALIFORNIA
October 25, 2022
CERTIFIED FOR PUBLICATION
The Zalkin Law Firm, Irwin M. Zalkin and Devin M. Storey, for Plaintiffs and Appellants.
Artiano Shinoff, Paul V. Carelli IV, Gil Abed, and Daniel R. Shinoff, for Defendant and Appellant.
Leone & Alberts, Louis A. Leone and Seth L. Gordon for Northern California Regional Liability Excess Fund, Southern California Regional Liability Excess
INTRODUCTION
Plaintiffs K.M., H.R., and M.L. (Plaintiffs) sued the Grossmont Union High School District (the District) for negligence based on alleged sexual abuse by their high school drama teacher, James Chatham.1 They also asserted sexual harassment claims under
other‘s costs. The trial court ruled the offers were invalid, granted Plaintiffs’ motion, and denied the District‘s motion in pertinent part.
Both parties appealed. The Legislature later enacted Assembly Bill No. 218 (Assembly Bill 218 or Assem. Bill 218), which amended
Plaintiffs seek a new trial. They contend they are entitled to pursue treble damages, and that the trial court erred by sustaining the demurrers to their sexual harassment claims, excluding certain evidence, and giving the erroneous oral jury instruction. The District argues the trial court wrongly determined its
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Events
Plaintiffs attended Granite Hills High Schоol (“Granite Hills“) between 2009 and 2015. Chatham was the drama teacher until 2014. Georgette Torres was the school principal until 2013, and passed away in 2016. Jake Gaier and Michael Fowler served as assistant principals, with Fowler leaving for another school in 2011 and returning as principal in 2013.
The District had a policy prohibiting sexual harassment. There was also an online training program titled, “Making Right Choices” for staff and students, which addressed inappropriate conduct and reporting.
Former head custodian Sonia Villa received reports from custodians who saw Chatham with male students, and told her supervisor, Janie Wright, and teachers about these reports. Around 2010, she attended a meeting with Wright, Torres, and Fowler, at which Torres questioned why Villa was talking to teachers about other teachers and (according to Villa) required her to sign something.
In November 2011, a student‘s parents emailed Gaier to report inappropriate conduct by Chatham, including telling the students, “get up on stage we are filming a porno” and having a male visitor who would sit on his lap and whom he would ask to “kiss him.”3 Torres and Gaier held a meeting with Chatham, he agreed to stop, and they placed the email and meeting notes in his file as a written record. Gaier conducted a follow-up classroom visit, and did not hear further complaints or rumors about Chatham.
Between 2011 and 2014, Chatham engaged in sexual contact with each Plaintiff, which they described at trial and we address post.
In late January 2014, a female student and her mother told Granite Hill‘s resource officer, Robert Lesagonicz (Officer L.), that Chatham was sexually touching students. Fowler, who was now principal, placed Chatham on administrative leave. Officer L. conducted an investigation in which he
organized a meeting with K.M. and others in early February 2014 to discuss Chatham, at which they initially agreed to protect him; M.L. was not present. The District subsequently terminated Chatham‘s employment.
B. Litigation and Pretrial Proceedings
In 2015 and 2016, each Plaintiff sued the District. The operative complaints asserted claims for negligence; negligent supervision; negligent hiring or retention; negligent failure to warn, train, or educate students; intentional infliction of emоtional distress; and sexual harassment under
The District demurred to the claims for sexual harassment under
In May 2018, the District made the operative
C. Trial
The matter proceeded to a jury trial in November 2018 on Plaintiffs’ negligence claims. The jury heard extensive witness testimony, which we now summarize.5
1. Plaintiffs’ Testimony
K.M. took Chatham‘s class his sophomore year. Chatham engaged in improper conduct with male visitors, like having them sit on his lap. K.M. then did a summer theater program, in which Chatham did similar things, along with a “game” that involved almost kissing the boys. He started touching K.M., including nibbling on his ear, massaging his head and shoulders, and touching his stomach and thigh. K.M. said “it was a constant thing . . . so it became normal . . . .” During K.M.‘s junior year, Chatham touched K.M.‘s genitals over his pants and under his underwear, and kissed him. Chatham‘s behavior continued into his senior year, and K.M. eventually
H.R. took Chatham‘s class his junior year. H.R. first saw Chatham touch other boys, and Chatham then started touching him, including pulling him on his lap; nibbling his ears; rubbing his shoulders, chest, and legs; and doing the kissing game. H.R. said it felt “so normal,” the students would mimic Chatham, and it was how they “joked around.” Chatham later touched him under and over his underwear, and flicked his crotch. H.R. further testified his father had been difficult, his parents made him leave the home his senior year, and Chatham helped him get a job in community theater and work as his unpaid teaching assistant. H.R. said he avoided Officer L.‘s calls
and organized the meeting to help Chatham, because Chatham “meant a lot” to him. He told Detective V. only about “minor things,” to protect Chatham.
M.L. played multiple sports in high school, and excelled at football. He took a class with Chatham the first semester of his junior year. Chatham became “like a . . . close friend,” started doing the kissing game, and one day groped his leg. M.L. said he was “weirded out,” but thought it was a jоke and did not report it. Chatham touched his legs repeatedly, felt “up [his] shirt,” and groped and wrestled with him. Two weeks before Chatham was placed on leave, he touched M.L.‘s genitals under his shorts. M.L. acknowledged he did not disclose the genital touching until early 2018, when he told Plaintiffs’ expert psychiatrist, Dr. Calvin Colarusso. He said he did not tell Detective V. everything because he was embarrassed and did not want this to take away from his athletic success. After high school, M.L. attended Grossmont Community College, where he played football for a period of time.
2. Testimony Regarding 2010 Villa Meeting
Former head custodian Sonia Villa testified about custodian reports about Chatham, and her meeting with school administration. She said she received multiple reports from a female custodian, including one time when Chatham and a male student were in his office with the lights off, and told her supervisor, Janie Wright, and a teacher. Villa said that another time, custodian William Kennedy reported a boy was laying on Chatham‘s leg on a sofa, and Chatham was touching the boy‘s hair. When Villa arrived, they were just sitting on the sofa. She told Wright, as well as another teacher, Joni Mah.
Villa stated she was called into a meeting with Wright, Fowler, and Torres. According to Villa, Torres said she heard Villa was talking about
“Chatham doing inappropriate stuff” and asked, “why I don‘t come to her, why I came to a teacher and told her before her.” Villa stated Torres had a “paper” ready, and said, “[F]rom now on, she don‘t want to hear that I talk about any teacher in any way, . . . and . . . I‘m not allowed to say anything to anybody, to any teacher, . . . to my custodians and that this is what I have to sign the paper.” She signed the paper because she “need[ed] the job.” Villa then told the custodians they now had to “give [her complaints] in writ[ing].”
Mah, Kennedy, and Fowler also testified about these events.6 Mah confirmed Villa talked to her about Kennedy‘s report, and said she talked to Fowler. Kennedy said he saw Chatham and the boy sitting side by side, with the lights down; Torres and Wright met with him and explained they were doing plays; and he denied they told him not to raise concerns. Fowler testified the Villa meeting was “about [Villa] complaining to teachers versus management.” He denied Torres told Villa not to report inappropriate conduct by Chatham, or gave her anything to sign (although he testified at deposition that he did not remember any paperwork). Mah testified Villa subsequently said she was “told she shouldn‘t be talking to teachers about other teachers” and “had to sign something,” and that Torres said she “talked to [Villa] about gossiping about teachers with other teachers.”
3. Testimony Regarding 2011 Email
Gaier testified about the 2011 email regarding Chatham, and the meeting and classroom visit that followed. He agreed that multiple actions violated the sexual harassment policy. He said he immediately told Torres, who concurred the behavior was inappropriate. During the meeting,
Chatham acknowledged certain behaviors, they took him at “his word” that it would stop, and put the documentation in his file. Gaier agreed Chatham “was not just given a stern warning; he was given discipline.” Gaier said that when he visited Chatham‘s classroom, Chatham acted appropriately and he did not receive further complaints.
The student whose parents sent the email testified that after Gaier‘s classroom visit, Chatham told the class someone “ratted him out for being inappropriate.”
4. Expert Witness Testimony
Both sides offered psychiatric experts. Dr. Calvin Colarusso testified for Plaintiffs. He said each Plaintiff experienced child sexual abuse and post-traumatic stress disorder (PTSD), which could result from sexual abuse. He also determined K.M. had depression encompassed by his PTSD, H.R. had major depressive disorder, and M.L. had cannabis use disorder. Dr. Colarusso noted H.R. was diagnosed with depression previously and family issues contributed to it, but said the “sexual abuse exaggerated the depression.” For M.L., he acknowledged other factors contributed to his trauma, but said there would be no PTSD without the sexual abuse.
Dr. Colarusso opined each Plaintiff needed years of therapy, now and in the future.
The District‘s psychiatric expert was Dr. Dominick Addario. He noted it was “very rare” for PTSD to develop in a situation not involving fear, and “most PTSD or stress-related issues from trauma take around 16 to 36 months to clear.” He opined K.M. had heightened scores for anxiety and negativity, but would be in the same place without the experience with Chatham. He opined H.R. had major depressive disorder, noting his history of psychiatric and family issues, and 30 percent of his problems related to Chatham. As for M.L., Dr. Addario testified he had adjustment disorder with mild depressive features, and 15 percent of his issues were from Chatham.
D. Jury Instructions, Verdict, and Post-Trial Proceedings
The trial court instructed the jury that Plaintiffs contended they were harmed by the District‘s negligence, and the District denied these allegations. In giving jury instruction 406 of the Judicial Council of California Civil Jury Instructions (CACI 406), regarding apportionment of fault among joint tortfeasors, the court mistakenly included “Plaintiffs.” The trial court also told the jury there were two stipulations; that the District responded “appropriately and reasonably” to the 2014 report on Chatham, and that there were no prior student complaints besides the 2011 report.
In February 2019, the jury returned verdicts for Plaintiffs. The jury awarded damages of $480,000 to H.R.; $120,000 to K.M., and $135,000
section 1431.2, the District was required to pay damages of $240,000 to H.R., $60,000 to K.M., and $69,000 to M.L.7
Plaintiffs unsuccessfully moved for a new trial, asserting the trial court erroneously excluded certain evidence and included them in the CACI 406 instruction. In February 2019, the trial court entered judgment. The court then granted Plaintiffs’ motion to tax costs, and denied the District‘s motion to tax costs in part, on the grounds that the District‘s section 998 offers were invalid.
Both parties timely appealed. We granted the application of the Northern California Regional Liability Excess Fund, Southern California Regional Liability Excess Fund, Statewide Association of Community Colleges, and School Association for Excess Risk to file an amicus curiae brief, and permitted the parties to file supplemental briefs to address the amicus brief and recent case law regarding section 340.1 treble damages.8
DISCUSSION
I. Plaintiffs’ Appeal From Judgment
Plaintiffs argue they are entitled to seek the newly-available treble damages, and that the trial court erred by sustaining the District‘s
demurrers to their sexual harassment claims, refusing admission of certain evidence, and including Plaintiffs in the CACI 406 instruction to their prejudice. We reject each argument.
A. Overview of Applicable Law
1. Statutory Interpretation
In interpreting a statute, “we look first to the words of a statute, ‘because they generally provide the most reliable indicator of legislative
“If the statutory terms are ambiguous, we may examine extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we choose the construction that comports most closely with the Legislature‘s apparent intent, endeavoring to promote rather than defeat the statute‘s general purpose, and avoiding a construction that would lead to absurd consequences.” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.)
2. Standard of Review
When an appeal raises a pure issue of law, including as to statutory interpretation, we review the issue de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; Pineda, supra, 51 Cal.4th at
p. 529.) Only prejudicial error is grounds for reversal. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573-574 (Soule).) The appellant has the burden to “show not only that the trial court erred, but also that the error was prejudicial . . . .” (Hoffman Street, LLC v. City of West Hollywood (2009) 179 Cal.App.4th 754, 772.) We address other applicable standards of review as necessary for particular issues.9
Plaintiffs contend they are entitled to a new trial to seek treble damages under Assembly Bill 218. We conclude the treble damages provision is neither retroactive, nor applicable to public school districts.10
1. Section 340.1 and Assembly Bill 218
“Section 340.1 governs the period within which a plaintiff must bring a tort claim based upon childhood sexual abuse.” (Quarry v. Doe I (2012) 53 Cal.4th 945, 952 (Quarry).) After its enactment in 1986, the section was amended repeatedly to expand the statute of limitations and reduce other barriers to claims, including with a one-year claim revival period in 2002.
(Ibid.) Assembly Bill 218 further extended the statute of limitations, permitted up to treble damages for abuse resulting from a cover-up, and provided a three-year claim revival period. (Assem. Bill 218, § 1.)
Section 340.1, subdivision (a), now permits an “action for recovery of damages suffered as a result of childhood sexual assault” to be brought within 22 years of the age of majority (i.e., age 40) or five years of when the plaintiff discovered the injury or should have. (
Section 340.1, subdivision (b)(1), the treble damages provision, states: “In an action described in subdivision (a), a person who is sexually assaulted and proves it was as the result of a cover up may recover up to treble damages against a defendant who is found to have covered up the sexual assault of a minor, unless prohibited by another law.”
subdivision (a) as amended by [Assembly Bill 218].” Subdivision (r) states, “The changes made to the time period under subdivision (a) as amended by [Assembly Bill 218] apply to and revive any action commenced on or after [its] enactment . . . , and to any action filed before [its] enactment, and still pending . . . , including any action or causes of action that would have been barred by the laws in effect before the date of enactment.”
Assembly Bill 218 also amended
2. Retroactivity
Plaintiffs сontend all of Assembly Bill 218‘s changes, including the new treble damages provision, apply retroactively. The District maintains this provision is a substantive change, and as there is no clear legislative intent for retroactive application, it applies prospectively. We conclude the treble damages provision operates prospectively only.
a. Applicable Law
“[S]tatutes ordinarily are interpreted as operating prospectively in the absence of a clear indication of a contrary legislative intent,” and there is a “presumption against retroactive application . . . .” (Quarry, supra, 53 Cal.4th at p. 955.) “We apply the presumption in the absence of explicit legislative indications of retroactivity, doing so based on the fundamental
fairness considerations raised by ’ “imposing new burdens on persons after the fact.” ’ ” (McHugh v. Protective Life Ins. Co. (2021) 12 Cal.5th 213, 229 (McHugh).)
” ‘In deciding whether the application of a law is prospective or retroactive, we look to function, not form. . . . Does the law “change[ ] the legal consequences of past conduct by imposing new or different liabilities based upon such conduct[?]” [Citation.] Does it “substantially affect[ ] existing rights and obligations[?]” [Citation.] If so, then application to a trial of
We focus on “whether the statutory change in question significantly alters settled expectations. . . .” (McHugh, supra, 12 Cal.5th at p. 230; compare, e.g., Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193-1194 (Evangelatos) [new liability under Proposition 51 applied prospectively], with McHugh, at pp. 231-232 [new insurance grace period and notice rules applied to existing actions; they made “relatively cabined, procedural changes” to policy administration, and did not “unfairly ‘rewrite’ existing policies“]; see also Mervyn‘s, supra, 39 Cal.4th at pp. 231-232 [impermissible retroactive rules included “subject[ing] tobacco sellers to tort liability for acts performed” when “protect[ed] [by] an immunity statute,” while permissible prospective rules included eliminating right under anti-SLAPP to “dismiss certain public-interest lawsuits“].)
“Ambiguous statutory language will not suffice to dispel the presumption against retroactivity; rather ’ “a statute that is ambiguous with
respect to retroactive application is construed . . . to be unambiguously prospective.” ’ ” (Quarry, supra, 53 Cal.4th at p. 955.)
b. Statutory Language
Plaintiffs maintain that because
c. Statutory Scheme
Prospective application of the treble damages provision is also consistent with the statutory scheme. As described above, Assembly Bill 218 both reduced barriers to childhood sexual assault claims and added treble damages for assault resulting from a cover-up. The provisions aimed at reducing barriers either do not implicate improper retroactivity, or use express revival or retroactivity language. (See Quarry, supra, 53 Cal.4th at p. 956 [where “former limitations period has not expired, an enlarged limitations period ordinarily applies and is said to apply prospectively“];
Plaintiffs’ arguments lack merit. First, they contend
Second, Plaintiffs contend an “analysis of whether [
We also reject Plaintiffs’ reliance on attorney fees cases. Courts treat “legislation affecting the recovery of costs, including attorney fees, as addressing a ‘procedural’ matter that is ‘prospective’ in character and thus not at odds with the general presumption against retroactivity.” (USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197, 221.) The cases cited by Plaintiffs follow that approach, but do not involve damages and offer no guidance here. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 930-932; Olson v. Hickman (1972) 25 Cal.App.3d 920, 922.) ARA Living did involve both fees and damages, and illustrates they remain distinct. (ARA Living, supra, 18 Cal.App.4th at p. 1562.) There, the Court of
Appeal held attorney fee changes applied to pending actions, but a new provision allowing successors (not just surviving victims) to recover pain and suffering damages applied prospectively only. (Id. at pp. 1562-1564.)
More broadly, Plaintiffs contend the Legislature intended “to broaden the scope and application of [
d. Legislative History
Finally, the legislative history for Assembly Bill 218 does not support retroactive application of the treble damages provision.
We begin with the parties’ requests for judicial notice. We take notice of the Assembly Bill 218 bill history, including interim versions and
committee reports and analyses, as well as fact sheets from the bill’s author. (
We now turn to the bill history of Assembly Bill 218. We focus on materials highlighted by Plaintiffs, and conclude they do not reflect clear legislative intent for retroactive treble damages.
First, Plaintiffs argue the “legislative history contains frequent references to the retroactive effect of the statute,” citing an Assembly Committee on the Judiciary report. (Assem. Comm. Jud., Mar. 12, 2019.) The issue is whether the treble damages provision is retroactive, not the entire law, and the references they cite do not establish it is.
Plaintiffs state the report reflected numerous groups opposed the treble damages provision, and one insurance group objected “to the application of treble damages retroactively . . . .” Input to the legislature does not reflect legislative intent. (Cf. Pendleton, supra, 24 Cal.4th at p. 47, fn. 6.)
Second, Plaintiffs argue the legislative history “confirms a retroactive intent,” since “retroactivity was justified” by the harm from the assaults and the importance of deterring cover-ups. They cite an “According to the Author” section of an Assembly report, which in addressing treble damages, states in part that the “reform is clearly needed . . . .” (Assem. Bill 218, 3d reading, Jan. 16, 2019 (2019-2020 Reg. Sess.) p. 2.) We discuss this author statement post, in addressing whether the treble damages provision is punitive. Here, it suffices to say the statement does not support retroactivity. Legislative recognition that a change is important does not mean it is retroactive, as we note above. (Evangelatos, supra, 44 Cal.3d at p. 1213.)
Finally, Plaintiffs argue “cover-ups were a major justification for retroactivity and revival,” and we should not accept that statute portions “addressing cover-up were prospective only.” They cite a Senate Rules Committee report, which states in part, “[T]he systematic incidence of childhood sexual assault . . . and the cover-ups that accompanied them arguably make both a revival period and an extended statute of limitations warranted.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 218 (2019-2020 Reg. Sess.) as amended Aug. 30, 2019, p. 5.) We are not persuaded.
3. Impact of Government Code Section 818
Treble damages are available under
a. Applicable Law
“In tort actions, damages are normally awarded for the purpose of compensating the plaintiff for injury suffered . . . .” (Kizer, supra, 53 Cal.3d at pp. 146-147.) “When, however, the defendant’s conduct is outrageous, additional damages may be awarded to punish the defendant and to deter such conduct in the future. [Citations.] Punitive or exemplary damages ‘are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious . . . .’ ” (Id. at p. 147; see Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, fn. 13 [“purpose of punitive damages is to punish wrongdoers and thereby deter . . . wrongful acts”];
b. Statutory Language
Plaintiffs contend that “[b]y linking . . . treble damages to a showing of causation, the Legislature made clear that [they] are intended to compensate the victim of cover-up.” The District argues the provision’s plain meaning is that one may recover up to treble damages, unless “some other law” bars them;
We conclude the statutory text supports the District’s view that the treble damages provision is punitive, not compensatory, and Plaintiffs’ focus on causation is misplaced. We further conclude the text reasonably encompasses
First, the text reflects a primarily punitive purpose.
Plaintiffs’ position lacks merit. Focusing on what they characterize as causation, they find it significant that only subsequent victims can seek treble
Second, the only reasonable interpretation of “unless prohibited by another law” is that it refers to laws that limit enhanced damages, like
Plaintiffs maintain that even if the treble damages provision has “some punitive aspect,” it remains compensatory and
c. Legislative History
Plaintiffs do not establish the legislative history reflects clear intent for treble damages to serve a compensatory purpose or to apply to public entities.
First, Plaintiffs cite a Senate Judiciary Committee report comment that states, in part, that “the victim’s assault must result from a prior cover up of childhood sexual assault.” (Sen. Com. on Judiciary, Rep. on Assem. Bill 218 (2019-2020 Reg. Sess.), Jul. 2, 2019, p. 11.) The report is silent as to the purpose of treble damages, and Plaintiffs’ causation argument for a compensatory purpose lacks merit, as discussed above.
Second, Plaintiffs direct us to an excerpt from the bill author statement noted above:
“[Assembly Bill] 218 would also confront the pervasive problem of cover ups in institutions, from schools to sports league[s], which result in continuing victimization and the sexual assault of additional children. The
bill would allow for recovery of up to treble damages from the defendant who covered up sexual аssault. This reform is clearly needed both to compensate victims who never should have been victims—and would not have been if past sexual assault had been properly brought to light—and also as an effective deterrent against individuals and entities who have chosen to protect the perpetrators of sexual assault over the victims.”
The author statement does not establish a compensatory purpose. The statement does not identify the injury for which compensation is needed, and the language suggests a punitive motive. (LAUSD, supra, 64 Cal.App.5th at p. 560; see also Sen. Com. on Judiciary, Background Information Sheet for Assem. Bill 218, May 11, 2019 [bill would “increas[e] . . . damages a victim may recover from those who sought to cover up the abuse in order to deter bad actors”].) As noted, plaintiffs can already recover all of their actual damages. (See X.M., supra, 68 Cal.App.5th at p. 1027 [no legislative history materials identified injuries that “treble damages are needed to compensate that actual damages do not already cover”].) And, even if the Legislature did intend treble damages to aid in compensation for cases involving cover-ups, it still does not follow that treble damages were not primarily punitive.
Third, Plaintiffs cite statements that purportedly show the Legislature intended to subject all defendants to treble damages. They start with a statement in an early Assembly report, repeated elsewhere, that “[t]his bill applies equally to abuse occurring at public and private schools and applies to all local public entities.” (Assem. Bill 218, 3d reading, Jan. 16, 2019 (2019-2020 Reg. Sess.) p. 2.) Parts of Assembly Bill 218 apply to public entities, but that does not mean the treble damages provision does. Indeed, the Legislative Counsel’s Digest in the enacted bill states the bill provides for “treble damages against certain defendants,” and does not limit that qualification to defendants who engaged in prior cover-ups. (Italics added.) Plaintiffs also cite the Senate Appropriations Committee report comment, noted above, that there could be costs to school districts “to the extent litigation is successfully brought outside the current statute of limitations and/or the districts are liable for treble damages.” As we explained, this text reflects, at most, uncertainty as to publiс entity damages, not clear intent.
Plaintiffs make a related policy argument, contending “there is no basis in logic or law to impose a lesser standard on public schools . . . .” We question this characterization, as all schools remain liable for actual damages, and reject the point regardless. Courts have long recognized there is little justification for imposing enhanced damages on public entities, including
Finally, Plaintiffs argue that even after the phrase “unless prohibited by another law” was added to
d. Case Law From Other Contexts
Plaintiffs also rely on case law from other contexts to contend the treble damages provision is compensatory or otherwise is not subject to
First, Plaintiffs contend “ ‘the immunity . . . under
In Younger, the California Supreme Court held
Then, in Kizer, the Court held civil penalties could be imposed on a county long-term care facility under the Health and Safety Code. (Kizer, supra, 53 Cal.3d at p. 141.) Focusing on the Tort Claims Act, the Court first held that nothing therein suggested
Lastly, in LACMTA, the Court of Appeal held a public transit authority was subject to a civil penalty under
These cases do not aid Plaintiffs. Plaintiffs seek enhanced damages in a tort action for childhood sexual assault, not application of civil penalties
Second, Plaintiffs contend a “strong analogy” can be made between the damage multiplier in Department of Corrections, a workers’ compensation case, and the treble damages provision here. We disagree. There, the California Supreme Court held
Third, Plaintiffs contend courts have found treble damages multipliers are not always punitive, citing a rent control case, Beeman v. Burling (1990) 216 Cal.App.3d 1586, and two federal cases, PacifiCare Health Sys., Inc. v. Book (2003) 538 U.S. 401 (Book) and Cook County v. United States ex rel Chandler (2003) 538 U.S. 119 (Cook). These cases do not help Plaintiffs, either. In Beeman, the Court of Appeal disagreed a rent control ordinance improperly required “not less than three times actual damages” for wrongful
Finally, the District argues the enhanced damages provision in
at *1-*2.) The court explained other courts had relied on Harris to find these damages were punitive and “unavailable against a public entity,” and observed they bore “some . . . hallmarks of punitive damages.” (Id. at *4; ibid. [noting Harris language was dicta, considering if there was a non-punitive purpose
4. Plaintiffs Do Not Establish Reversal Is Warranted
Finally, Plaintiffs contend a retrial is warranted when a statutory amendment “requires a new finding of fact.” This argument rests on their position that they can pursue treble damages, which we have rejected.
C. Sexual Harassment Claim
Plaintiffs contend the trial court erred by granting the District’s demurrers to their sexual harassment claims, asserting the District is a “person” subject to
1. Additional Facts
As noted, each Plaintiff asserted a claim for sexual harassment under
The trial court stated that under
2. Applicable Law
“We review a ruling sustaining a demurrer de novo, exercising independent judgment as to whether the complaint states a cause of action as a matter of law. [Citation.] ‘We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court’s stated reasons.’ [Citation.] Further, ‘ “[i]f another proper ground fоr sustaining the demurrer exists, this court will still affirm the demurrer.” ’ ” (Abatti v. Imperial Irrigation District (2020) 52 Cal.App.5th 236, 294 (Abatti).)
“When a demurrer is sustained without leave to amend, ‘we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ ” (Abatti, supra, 52 Cal.App.5th at pp. 294-295, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
3. Whether Public Entity Is A “Person” Under Civil Code Section 51.9
We begin with the central issue here: whether a public school district is a “person” under
a. Statutory Language
First, Plaintiffs do not establish the District is a person under
Second, Plaintiffs rely on other inapposite authorities to argue for a broad interpretation of “person” under
Third, Plaintiffs argue “person” should not be interpreted to exclude government entities unless liability would infringe their sovereign powers, citing Flournoy v. State (1962) 57 Cal.2d 497 and other older cases. But, as the California Supreme Court explained in Wells, “[T]he premise that public entities are statutory ‘persons’ unless their sovereign powers would be infringed is simply a maxim of statutory construction. While the ‘sovereign powers’ principle can help resolve an unclear legislative intent, it cannot override positive indicia of a contrary legislative intent.” (Wells, supra, 39 Cal.4th at pp. 1192-1193 [both indicia of legislative intent and fiscal impact foreclosed public school liability under CFCA].) As we explain next, Plaintiffs do not establish
b. Statutory Purpose
Plaintiffs contend that imposing liability under
First, there is no question that public school districts must provide a harassment-free environment for students. (Sеe
Further, there are other laws and legal theories besides
them obtain compensation when they do, including the
Second, Plaintiffs also do not establish that applying
“School districts must use the limited funds at their disposal to carry out the state‘s constitutionally mandated duty to provide a system of public education. . . . [¶] [T]here can be no doubt that public education is among the state‘s most basic sovereign powers. Laws that divert limited educational funds from this core function are an obvious interference with the effective exercise of that power.”
(Wells, supra, 39 Cal.4th at p. 1195; ibid. [“The Legislature is aware of the stringent revenue, budget, and appropriations limitations affecting all agencies of government—and public school districts in particular“]; id. at pp. 1196-1197 [Legislature “did not intend to subject financially constrained school districts . . . to the treble-damages-plus-penalties provisions of the CFCA“].) For similar reasons, we will not presume the Legislature intended to subject public school districts to
Plaintiffs’ attempt to distinguish Wells is unpersuasive. They argue
Finally, the District directed us in its briefing to Brennon B. v. Superior Court (2020) 57 Cal.App.5th 367, 369, which held the Unruh Act does not apply to public school districts. After briefing concluded, the California Supreme Court affirmed the Court of Appeal, holding in relevant part, “The statutory text of the [Unruh] Act, its purpose and history, and our prior caselaw all indicate that public schools, as governmental entities engaged in the provision of a free and public education, are not ‘business establishments’ within the meaning of the Act. (
We conclude that although Brennon B. involves the Unruh Act, not section 51.9, the Court‘s analysis is instructive, and consistent with our conclusion that
4. Plaintiffs’ Liability Theories
Plaintiffs maintain the District‘s “liability is clear under three distinct avenues“: it is (1) “statutorily liable for its supervisory employees’ failure to
None of these arguments support the relief Plaintiffs seek to pursue—liability under
a. Vicarious Liability
First, Plaintiffs contend
In C.A., the plaintiff sued his public school district and guidance counselor based on alleged sexual harassment and abuse by the counselor, the Court of Appeal affirmed the district‘s dismissal following demurrer, and the California Supreme Court reversed. (C.A., supra, 53 Cal.4th at p. 865.) The Court held allegations that the “administrators and employees knew or should have known of [the counselor‘s] dangerous propensities, but nevertheless hired, retained and failed to properly supervise her” could “make the District liable under a vicarious liability theory encompassed by [
b. Ratification
Next, Plaintiffs contend “[p]rinciples of ratification apply to a [
Although Tenet did conclude plaintiffs could proceed on a ratification theory under
City of Los Angeles did involve a public entity defendant, but did not address
c. Civil Code section 52
Finally, Plaintiffs contend
We begin with the statutory text, which states: “Whoever denies the right provided by [
Accordingly, the California Supreme Court has described
Plaintiffs identify no California authority or legislative history that supports their view that
d. Ability To Amend
Because the District is not liable under
We observe Plaintiffs do not demonstrate prejudice, regardless. They argue the “exclusion of sexual harassment claims” limited their ability to show Chatham “creat[ed] an inappropriate environment“; foreclosed a ratification theory that could have avoided allocation of fault; and prevented them from obtaining attorney fees. Even if Plaintiffs could not pursue sexual harassment claims under
Plaintiffs assert the trial court erred by limiting evidence regarding Chatham‘s friendship with Torres and his internet bookmarks, and by purportedly excluding testimony by a therapist and football coach. They do not establish any prejudicial abuse of discretion.
1. Applicable Law
” ‘A trial court‘s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) It is the appellant‘s ” ‘burden to establish suсh an abuse, which we will find only if the trial court‘s order exceeds the bounds of reason.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852.) An ” ‘erroneous evidentiary ruling requires reversal only if “there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error.” ’ ” (Id. at p. 857; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim) [probability here means ” ‘a reasonable chance, more than an abstract possibility’ “].)
2. Friendship Between Chatham and Torres
a. Additional Facts
During depositions, Plaintiffs’ counsel asked about Chatham‘s relationship with Torres. Chatham himself said Torres was a good friend, they would eat together, and she would watch his local theater performances. Librarian Lynn Kraszewski said Chatham and Torres “had a friendship,” and noted one time that she, Chatham, and Torres visited Chatham‘s new apartment and then had dinner at Torres‘s home. Teacher Merryl Nelson said Chatham and Torres were “collegial,” and when asked if he had Torres‘s ear, she said “I felt he did . . . in relation to a few instances . . . that had to do with me.” Teacher Joni Mah said Torres “liked” Chatham, but would not “call it a close relationship” and was not aware of any special treatment, while a campus supervisor assumed they were friends, because they “talk[ed] a lot.”
The District moved in limine to exclude testimony that Chatham and Torres were friends, as irrelevant, speculative, and confusing. Plaintiffs opposed, citing the deposition testimony and Facebook messages from before Torres died in 2016, in which Chatham proposed getting brunch and said, “I
During trial, Plaintiffs’ counsel again sought to introduce relationship evidence, contending the District was suggesting in witness examination that the school would never “not respond . . . appropriate[ly]” to complaints, in part due to Torres‘s character. The trial court denied the request, but told counsel, “You will probably be given a little leeway . . . when you have [Chatham] on the stand and you talk to him about his relationship with [Torres].” Chatham did not testify at trial.
Sonnich subsequently testified administrators were supposed to report, not investigate, due in part to the collegiality of the environment and the desire for a uniform process. Plaintiffs’ standard of care expert, Robert Fraisse, testified there should have been an independent investigation of the 2011 email, also citing collegiality.
When Plaintiffs called Kraszewski, the trial court ruled they could ask about meals and going to each other‘s houses, but could not ask if Chatham and Torres had a “special relationship,” explaining it “would be speculation, but more important is that [Torres] would not be here . . . .” Plaintiffs asked Kraszewski if she, Chatham, and Torres ever socialized together outside of school, and she responded “[n]ot very often, but yes.” She described the time that Torres invited her and Chatham for dinner, and said this was “more to see” Chatham‘s new apartment and they went to Torres‘s house for dinner afterwards.
During closing arguments, Plaintiffs’ counsel argued Chatham should have been reported for District investigation; cited Sonnich, Fraisse, and Kraszewski‘s testimony; and asserted Kraszewski said “Torres wanted to be [Chatham‘s] friend” and “[t]hat can cloud . . . judgment.”
b. Analysis
Plaintiffs do not establish any abuse of discretion. The trial court carefully and repeatedly considered whether to permit evidence about Chatham and Torres‘s friendship, and ruled Plaintiffs could elicit certain testimony from Kraszewski (which they did) and Chatham (which they did not do). The
Plaintiffs argue they sought the relationship evidence to “explain the lack of adequate response” by school administrators to the 2011 email report about Chatham. In other words, they aimed to suggest Torres handled the issue herself, rather than reporting it for District investigation, due to favoritism. But Torres was deceased, and the only deponent who even potentially suggested she favored Chatham was teacher Nelson—who said Chatham had Torres‘s ear in situations relating to Nelson. The trial court could reasonably limit such speculation about Torres‘s motives. (People v. Babbitt (1988) 45 Cal.3d 660, 682 [” ‘The inference which defendant sought to have drawn . . . is clearly speculative, and evidence which produces only speculative inferences is irrelevant evidence.’ “].) Plaintiffs were still able to elicit objective facts—Torres did not report Chatham for District investigation, and did visit his apartment and had dinner with him—and to use this evidence in closing arguments to contend her judgment could have been clouded by her desire to be friends with Chatham.
Plaintiffs also do not establish they were prejudiced by the limitation on the friendship evidence. They contend it “very reasonably accounts for the low allocation of only 40% fault to the District,” and was especially prejudicial because the District was able to emphasize Torres‘s concern for student safety and accolades received by her and the school. These contentions lack merit. It was undisputed that Torres did not report Chatham for investigation, and Plaintiffs already showed she spent time with Chatham outside of school and argued her judgment was clouded as to him. Plaintiffs do not show that additional evidence about Torres and Chatham‘s relationship would have materially enhanced that showing, or impacted the fault allocation at all.
3. Internet Bookmarks
a. Additional Facts
A laboratory ran a forensic search on Chatham‘s District laptop, and San Diego Police Detective V. received a screenshot of his website bookmarks. The screenshot included around 15 pornographic bookmarks, including multiple sites with the terms “teen” and/or “boy.”
When Plaintiffs’ counsel examined Detective V. about the bookmarks, the District objected on various grounds, and the trial court addressed the scope
Both psychiatric experts addressed grooming (an issue on which Plaintiffs believe the bookmark evidence is relevant, as we discuss post). Dr. Colarusso defined grooming as an attempt to gain confidence, so one can sexually abuse a child. He said that this was a “situation of group grooming” in front of other teenagers. Dr. Addario said grooming involves a perpetrator “singling out one person” for “special treatment,” and he had not had a case involving group grooming. Sonnich, former head of human resources, also testified about grooming, and said the “literature on this is that grooming is an individual with an individual.”
Fraisse, Plaintiffs’ standard of care expert, testified that if the District found pornography on Chatham‘s computer in 2010 or 2011, it “would have been a reason for termination.” During closing arguments, Plaintiffs noted the pornographic bookmarks, including “Gay Teen Love,” contended that they would have been discovered if an investigation was conducted in 2011, and argued there was group grooming.
b. Analysis
Plaintiffs argue the trial court erroneously “refused to allow the document showing the pornographic websites.” We reject this argument.
As a preliminary matter, it is not clear Plaintiffs objected to the trial court‘s treatment of the bookmarks. Their counsel told the trial court a “sampling” was adequate and identified bookmarks at the court‘s request that did not include the word “boy.” On appeal, Plaintiffs indicate Exhibit 35 had the full bookmark list and the court excluded it, but the record pages they cite do not address an Exhibit 35. (See Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 [appellants “fail to point to any
Even if Plaintiffs preserved their argument, they do not establish any abuse of discretion. Under
Plaintiffs do not establish otherwise. First, they argue the “presence of so many of these websites as bookmarks” shows the District failed to monitor Chatham‘s computer after the 2011 email, and their discovery at the time would have triggered termination. But there is no dispute the District did not review his computer before 2014, any pornographic bookmarks would suffice to illustrate that, and Plaintiffs were able to elicit testimony about five of them (and note this was not “everything“).
Second, Plaintiffs argue that limiting the bookmark evidence bolstered the District‘s purported positions that Chatham‘s conduct was not grooming, but rather “unprofessional behavior,” and that Plaintiffs participated in some of Chatham‘s conduct. Even setting aside Plaintiffs’ dubious characterization of the District‘s positions, their point lacks merit. If Plaintiffs felt that showing Chatham had sexual interest in young males was necessary to show he engaged in group grooming and preyed on Plaintiffs (and to dispute contrary arguments by the District), that still does not mean they needed the full list of bookmarks to do so. We also reject Plaintiffs’ claim that the inclusion of a gay travel site rendered the evidence “a non sequitur that Chatham was gay.” Their counsel agreed to include this site and regardless, the “Gay Teen Love” site was evidence that Chatham was interested in young men specifically.
Finally, Plaintiffs do not establish prejudice. They contend the limitation of the bookmark evidence “had a reasonable likelihood of lowering the jury‘s
4. H.R.‘s Treating Psychologist
a. Additional Facts
Trial initially was set for February 2018, and expert depositions were completed the previous month.
In April or May 2018, H.R. began seeing Dr. Morgan Shaw, a treating psychologist at Kaiser Permanente. In mid-May 2018, Plaintiffs sent the District a “Supplemental Designation of Expert Witnesses” that listed Dr. Shaw as one of H.R.‘s “percipient treating physicians who may be asked opinion testimony.” The transmittal email indicated they would forward Dr. Shaw‘s records. The District‘s counsel responded, stating the District objected; discovery was closed; and this would prejudice the District and require further discovery.
In late May 2018, the trial court issued an order continuing the trial to October 2018 and stating, “[n]o further discovery.”
In September 2018, Plaintiffs unsuccessfully moved to augment their expert witness designation; only the denial order is in the record.
The District moved in limine to bar Plaintiffs from offering testimony from Dr. Shaw. The District contended it had been unable to depose her, and its experts were unable to review the medical records. Plaintiffs opposed the motion, arguing in part that although the court previously denied their motion to “designate Dr. Shaw as a non-retained expert,” the current question was “whether [she] should be allowed to testify as a percipient witness.” They also argued the District “refused to take [her] deposition . . . when it was offered on multiple occasions.” The counsel declaration they cited in support of their opposition does not appear to be in the record. At the hearing, the trial court ruled H.R. could testify Dr. Shaw treated him, but she could not testify. When the District‘s counsel asked for clarification that H.R. was the only one who could testify, the court said his mother could “say [she] took him to treatment” and confirmed Plaintiffs’ expert psychiatrist, Dr. Colarusso, could not change or supplement his opinion.
While conducting H.R.‘s direct examination, Plaintiffs’ counsel asked about counseling he received in high school and in 2015. He said he attended five to seven sessions his sophomore year due to family issues and another five to seven his junior year after his grades slipped, and that the latter sessions “did help somewhat.” He said he sought out counseling at Kaiser again in 2015 because he was having “tough mental times” and the Chatham events were “get[ting] to” him. Plaintiffs’ counsel did not ask about 2018 or Dr. Shaw. They also examined H.R.‘s parents about his counseling sessions, and also did not ask about 2018 or Dr. Shaw.
During cross examination, the District‘s counsel asked H.R. if he recalled the names of health care providers between October 2015 and April 2018. He named Dr. Shaw. Counsel asked, “[W]hen did you first start to see Ms. Shaw?” and H.R. said, “sometime around the beginning of this year,” confirming he meant 2018. H.R. acknowledged he saw the counselor in 2015 the day before his deposition. On redirect, Plaintiffs’ counsel asked H.R. how long he had seen Dr. Shaw, and he said, “probably [up until the] beginning of September.”
The District‘s expert, Dr. Addario, testified H.R. had a history of noncompliance with treatment, and opined the “chances are fair to guarded if he‘ll follow through with treatment.” He further testified, as to all Plaintiffs, that he did not know if he could “accept that we have three people who don‘t go to any treatment, yet they‘re having all these problems.” As noted, Plaintiffs’ expert, Dr. Colarusso, believed all three Plaintiffs needed years of therapy.
In closing arguments, Plaintiffs’ counsel noted H.R. had “been seeing Dr. Shaw since early 2018,” and argued the “therapy with Dr. Shaw ha[d] helped [H.R.] a lot,” and he “hop[ed] . . . to get better mentally.” The District‘s counsel argued the jury should consider the lack of counseling in evaluating the damages evidence. For H.R., counsel argued he “rarely went to counseling,” went after his lawsuit only before the deposition, and was not going now, and said, “So will he go in the future? We don‘t know. We can judge past conduct. We know what he‘s done so far.”
b. Analysis
Plaintiffs do not show the trial court abused its discretion. After unsuccessfully trying to add Dr. Shaw to their expert witness designation, they opposed the District‘s motion to exclude her, in part because she could still testify as a
Plaintiffs’ arguments lack merit. They contend they offered Dr. Shaw for deposition and, because the District did not take it, the District was able to suggest H.R. was malingering or unlikely to seek treatment. Plaintiffs’ appendix omits the attorney declaration that purportedly shows the deposition offers were made. (County of Sacramento v. Rawat (2021) 65 Cal.App.5th 858, 861 [” ‘we may disregard factual contentions . . . based on information that is outside the record.’ “].) In any event, we assume that to the extent Plaintiffs described discovery proceedings for the trial court, the court considered them while ruling on the motion in limine, and it could still reasonably conclude that having H.R. testify, not Dr. Shaw, was the fair resolution. (
Plaintiffs do not establish prejudice, either. They contend that Dr. Shaw‘s testimony was necessary, and H.R.‘s damages were unjustifiably low as a result of its exclusion. We are not persuaded. Plaintiffs still presented evidence that H.R. received counseling multiple times in the past (from H.R. and his family), and would benefit from years of counseling in the future (from Plaintiffs’ psychiatric expert, Dr. Colarusso). That showing was not rendered moot simply because the District offered expert testimony and argument that questioned if H.R. would seek treatment. We also reject Plaintiffs’ assertion that “[t]he key piece of rebuttal evidence” for H.R. was “his 10 visits to Dr. Shaw in April and May of 2018, documented in Exhibit 127 [Dr. Shaw‘s treating notes].” H.R. told the jury he saw Dr. Shaw from the “beginning” of 2018 through September 2018, and Plaintiffs cited the “early 2018” timeframe in closing arguments, permitting the jury to infer a
have shown he saw her for around six weeks, and a limited number of times.18
5. M.L.‘s College Football Coach
a. Additional Facts
M.L. played football during his second year at Grossmont Community College. During a transcribed interview with Dr. Addario in 2017, M.L. told him, “I played one full year of football. . . . I did pretty good in school because I was playing football all year long.”
In opening statements, Plaintiffs’ counsel told the jury that at the end of M.L.‘s college football season, “with Division 1 scouts there, and having the best game of his . . . career[,] he just walked off the field.”
M.L. testified he did not get into a Division 1 or 2 program, because he did not have the grades, and everything he worked for was “washed [away], gone, pointless.” He enrolled at Grossmont to play football and try to transfer to another program. He did not play his first year due to an injury, and said “it started to get a little more rough,” as he “lost [his] outlet.” During his second year, the “love of the sport” was leaving him. He said his last game was week eight; it was his “best game . . . all year,” with scouts in the stands; and he “walked off,” “[d]idn‘t finish the season,” and “[didn‘t] know why.” On cross-examination, the District‘s counsel asked if M.L. told Dr. Addario he played “all year,” and M.L. recalled saying he played “that football year.” After counsel read the interview transcript, M.L. acknowledged he told Dr. Addario, “I played the year.” On redirect, M.L. confirmed he walked off the field with “about two” games left, it was his “last game,” and he “[didn‘t] know what happened.”
M.L.‘s father testified M.L. had a “couple of really amazing” college football games, but the “last two games of the season he didn‘t even show up for his own games.”
Dr. Colarusso opined M.L.‘s “self-esteem was built around his reputation as a football player,” he had been “outed . . . having had homosexual experiences with a teacher,” and feared the “publicity related to sports.” He said that despite M.L. initially excelling at football after the Chatham events, that did not continue into junior college, noting he walked off the field and
Plaintiffs’ cоunsel asked to call M.L.‘s college football coach. The trial court said, “Don‘t call the football coach. It‘s not the main issue.” Counsel asked if he could call him as a rebuttal witness, and the court stated, “You can always . . . if it‘s appropriate, call somebody on rebuttal.” After the District‘s case, the court said the coach was “out,” but let Plaintiffs’ counsel make an offer of proof. Counsel argued the District made Plaintiffs’ “credibility . . . a major issue” and cross-examined M.L. on his statement to Dr. Addario; there was “jury appeal” in that M.L. “walked off the field and never went back to his sport, his passion“; and the coach “can corroborate that.” The court ruled the football coach could not testify.
During closing arguments, Plaintiffs’ counsel reiterated M.L. walked off the field. The District‘s counsel argued there was no “credible evidence to that effect,” citing the interview with Dr. Addario. Counsel further argued, “The football career [M.L.] thought he was going to have . . . did not happen . . . when he went to junior college” and “that‘s what shattered” him.
b. Analysis
Even if the football coach were a proper rebuttal witness (which the District disputes), Plaintiffs do not establish they were prejudiced by his exclusion. They argue, in substance, that the District questioned whether M.L. left football because of Chatham‘s abuse, in order to call his credibility into question and reduce the jury‘s damage award, and the coach‘s exclusion led to reduced damages. These arguments lack merit.
There was no dispute M.L. was a promising high school football player, who left the sport after playing during one college season. But whether he left the sport because of Chatham, and the circumstances under which he left, are different issues. Plaintiffs do not establish the coach had any insight as to the potentially significant issue: why he left football. Rather, the coach could testify only about the comparatively minor detail of when and how M.L. left the team. And there was already evidence before the jury on that issue. Both M.L. and his father testified he did not finish the season; M.L. described walking off the field; and he confirmed doing so, even after hearing the interview transcript with Dr. Addario. Plaintiffs do not establish additional testimony from the coach on this minor factual issue could have increased the
Plaintiffs’ focus оn the District‘s arguments is unavailing. To the extent the District contended in closing arguments that M.L. left football for reasons other than Chatham, this was supported by evidence unrelated to any testimony the coach could provide. Although Dr. Colarusso suggested M.L.‘s departure from football was related to Chatham, he also noted M.L. addressed his struggle with his grades. M.L. himself said that when he did not get into a top football program due to his grades, he felt like everything he worked for was “pointless.” And M.L. stated he “didn‘t know” why he left the field. Although the District did argue there was no credible evidence M.L. left the field mid-game—an issue on which the coach could have testified—Plaintiffs do not show that would have impacted damages, for the reasons discussed above.
E. Plaintiffs Do Not Establish Instructional Error
Finally, Plaintiffs argue the trial court prejudicially limited damages, by erroneously listing them in the oral CACI 406 instruction regarding apportionment of fault. We conclude any error was harmless.
1. Additional Facts
The trial court and counsel addressed the verdict form and the
While giving the jury instructions, the trial court explained Plaintiffs claimed the District negligently retained and supervised Chatham, resulting in harm to them, and the District denied these claims. The court subsequently instructed the jury with a modified version of
“[The District] claims . . . [Chatham] also contributed to Plaintiffs’ harm. To succeed on this claim, [the District] must prove both of the following: [¶] 1, that [Chatham] was at fault; and [¶] 2, that the fault of [Chatham] was a substantial factor in causing Plaintiffs’ harm. [¶] If you find that the fault of more than one person, including Plaintiffs, [the District], and [Chatham], was a substantial factor in causing Plaintiffs’ harm you must decide how much responsibility each has by assigning percentages of responsibility to each person listed on the verdict form. The percentages must total 100. [¶] You will make a separate finding of
plaintiffs’ total damages, if any. In determining the amount of damages, you should not consider any person‘s assigned percentage of responsibility. [¶] ‘Person’ can also mean an individual or a business entity.”
The oral instruction matched the written jury instructions submitted before trial. The court also instructed the jury under
While addressing apportionment in closing arguments, the District‘s counsel argued as to H.R., “Don‘t let [Chatham] get away. . . . He‘s 100 percent at fault. . . . 99 percent, 98 percent. Definitely the vast majority of fault.” For M.L., he said “don‘t let [Chatham] get away” and that Chatham was at fault a “hundred percent, 99 percent.” And, for K.M., he said, “[W]hen you apportion fault, it‘s [Chatham].”
After closing arguments, the trial court gave further instructions. The court stated “[m]ost . . . instructions are typed,” but handwritten words might be added, and the jurors should “treat all the words the same” and “[s]imply accept the instructions in [their] final form.” The court also stated, “I will give you verdict forms with answers you must follow.” The final written jury instructions are not in the record. The verdict form is not in the record either, but the judgment memorialized the verdict and reflects apportionment to Chatham (60 percent) and the District (40 percent).
Plaintiffs moved for a new trial based in part on instructional error regarding
2. Applicable Law
“Instructional error in a civil case is not ground for reversal unless it is probable the error prejudicially affected the verdict.” (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 359 (Red Mountain); accord, Soule, supra, 8 Cal.4th at p. 580; Soule, at pp. 580-581 [factors for consideration include the state of the evidence, the effect of other instructions and counsel‘s arguments, and any indications by the jury it was misled].) “We independently review claims of instructional error viewing the evidence in the light most favorable to the appellant.” (Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1333.)
Plaintiffs do not establish they were prejudiced by the trial court‘s inclusion of the term “plaintiffs” in the oral
As an initial matter, Plaintiffs do not show the jury relied on the oral instruction. “We presume that jurors are intelligent and capable of correctly understanding, correlating, applying, and following the court‘s instructions.” (People v. Acosta (2014) 226 Cal.App.4th 108, 119 (Acosta).) ” ‘This presumption includes the written instructions.’ ” (People v. Mills (2010) 48 Cal.4th 158, 200-201 (Mills).) “[A]s long as the court provides the jury with the written instructions to take into the deliberation room, they govern in any conflict with those delivered orally.” (People v. Osband (1996) 13 Cal.4th 622, 717; see People v. Mungia (2008) 44 Cal.4th 1101, 1132 [“[W]hen erroneous oral instructions are supplemented by correct written ones, we assumе the jury followed the written instructions, particularly when, as here, the jury is instructed that the written version is controlling.“].)
Plaintiffs concede the final written instructions presumptively were correct, but argue we should not assume the jury followed them. They state the “presumption of regularity applies where the jury is instructed that the written instructions control,” usually with
The rest of the instructions, the verdict form, and closing arguments all made clear to the jury that fault should be assigned between Chatham and the District. (See Soule, supra, 8 Cal.4th at pp. 580-581.) The rest of
Plaintiffs’ arguments do not compel a different result.
First, they argue that because the trial court gave the
Second, Plaintiffs argue the District‘s trial strategy was to blame them for “their participation [in] and failure to report” Chatham‘s conduct, citing evidence and argument that they did not fear him and viewed his conduct as a joke, did not report it at the time, and did not pursue counseling. Plaintiffs then argue the oral
II. The District‘s Appeal From The Costs Orders
The District argues the trial court‘s orders on costs should be reversed, because the court erroneously ruled its section 998 offers were invalid. This argument lacks merit.
A. Additional Facts
The District made the operative
“Plaintiff . . . agrees that all parties will bear their own costs and fees, and the parties will execute a settlement and release providing that Plaintiff will satisfy all liens, execute a
Civil Code section 1542 waiver, and there will be no admission of liability by [the District].”21
No settlement agreement or release agreement was attached to the offers. Plaintiffs did not accept the offers.
As noted, the judgment required the District to pay $240,000 to H.R., $60,000 to K.M., and $69,000 to M.L. For each Plaintiff, the District‘s
The District filed costs memoranda, and moved to strike Plaintiffs’ costs based in part on the
The trial court granted Plaintiffs’ motions to tax costs, stating the District “failed to meet its burden to show the . . .
B. Applicable Law
“The burden is on the offering party to demonstrate that the offer is valid under
C. Analysis
Each
Sanford, cited by the trial court, is instructive. (Sanford, supra, 246 Cal.App.4th at pp. 1123-1124.) Defendants in a motorcycle accident case made a
“[T]he terms of a settlement agreement can be the subject of much negotiation. And the terms can be problematical. For example, settlement agreements typically contain a waiver of all claims ‘known and unknown,’ a provision that has been held to invalidate a . . . 998 offer.’ [Citations.] [¶] . . . [¶] [A]nd as every lawyer who has settled a case will appreciate, the issue as to . . . section 1542 in a release can be the subject of much discussion.” (Sanford, supra, 246 Cal.App.4th at p. 1131.)
The court agreed with the plaintiff that because the agreement was “not described or revealed,” he was ” ‘left to guess at what terms [the offerors] might insist upon . . . .’ ” (Sanford, supra, 246 Cal.App.4th at p. 1131; id. at p. 1132 [” ‘Disputes would erupt and become routine over what offerors can and cannot place into these jack-in-the-box settlement agreements hidden in their
The District‘s
Nor, as the District claims, is this deficiency mitigated by the offers’ broad description of three terms (i.e., lien satisfaction and
The District belatedly offers two more points on reply, which also lack merit. First, it argues an “offeree may seek clarification or negotiate the terms of an unclear
DISPOSITION
The judgment and order are affirmed. The District shall be awarded its costs with respect to Plaintiffs’ appeal. Plaintiffs shall be awarded their costs with respect to the District‘s appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
O‘ROURKE, J.
BUCHANAN, J.