D.Z. v. Los Angeles Unified School Dist. ( 2019 )

Filed 5/14/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
D.Z., B283799
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC484110)
v.
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Malcolm H. Mackey, Judge. Reversed and remanded with directions.
Carrillo Law Firm, Luis A. Carrillo, Michael S. Carrillo; Esner, Chang
& Boyer, Holly N. Boyer, Shea S. Murray and Steffi A. Jose, for Plaintiff and
Appellant.
Baute Crochetiere & Hartley, Mark D. Baute, David P. Crochetiere for
Defendant and Respondent.
INTRODUCTION
Appellant D.Z.1 sued respondent Los Angeles Unified School District
(LAUSD), alleging negligent supervision arising out of her claim that she was
sexually abused by her high school teacher, James Shelburne. She further
alleged that LAUSD knew or should have known of the danger posed by
Shelburne, and the district’s failure to respond appropriately to that
knowledge resulted in harm to her. The jury found in favor of LAUSD.
Appellant asserts numerous errors on appeal. First, she contends that
the court erred in limiting the evidence of Shelburne’s purported misconduct
to acts involving touching students, thereby excluding a relevant history of
escalating inappropriate conduct that went unchecked by LAUSD. Second,
appellant contends the court committed prejudicial error in giving several
jury instructions and using the special verdict form proposed by LAUSD.
Finally, she argues that the court improperly excluded her rebuttal expert
witness from trial.
We conclude that the court abused its discretion in excluding all
evidence of conduct by Shelburne that did not involve physical touching.
Further, this error was prejudicial to appellant. We therefore reverse the
judgment and remand the matter for retrial. In addition, although we need
not reach appellant’s jury instruction claims, we address them for the benefit
of any retrial in this matter.
FACTUAL AND PROCEDURAL HISTORY
I. Complaint
Appellant filed her complaint in May 2012 alleging a cause of action for
negligence against LAUSD, Shelburne, and other district employees, as well
as a cause of action for respondeat superior liability against LAUSD. She
1
The record reflects some inconsistency regarding reference to
appellant, as well as other students, by full name or by initials only. The
students were minors at the time of the incident in 2010 and appellant filed
her complaint in 2012 as a minor through her guardian ad litem. However,
by the time of trial in 2017, they were adults. Appellant requests that we
refer to her by her initials. In light of that request, the sensitive nature of
the case, and their status as minors at the time the alleged conduct occurred,
we refer to appellant and the other students by first name or by initials. (See
California Rules of Court, rules 8.90(b) and 8.401.)
2
alleged that in September 2010, she was 16 years old, in eleventh grade at
Miguel Leonis High School (MLHS), and enrolled in three classes taught by
Shelburne. Between September and October 26, 2010, appellant alleged that
Shelburne engaged in multiple acts of sexual abuse, including hugging her
tightly, touching her hands and back in a way that made her uncomfortable,
and pressing his genitals against her. She also alleged that Shelburne took
inappropriate photographs of female students. In her first cause of action for
negligence, she alleged that LAUSD failed to properly train and supervise its
staff to protect students from sexual abuse. Further, she alleged that
LAUSD knew or should have known of Shelburne’s harmful conduct and
nevertheless continued to retain him as an employee.
Appellant later dismissed Shelburne and the other individual
defendants, as well as her respondeat superior claim, proceeding to trial in
April 2017 on her negligence claim against LAUSD.
II. Evidence at trial
A. The school
MLHS is a continuation high school within LAUSD that enrolls “at-
risk” students who struggled in the larger, traditional high school setting.
The school is small, with around 130 students, four to five teachers, a few
assistant teachers, and one or two administrators. Each teacher is
responsible for multiple subjects and the students move between classrooms
and subjects each day based on their individual needs; the witnesses largely
agreed that the relationship between teacher and student was “closer” than
in a traditional high school. While the testimony varied at trial as to how
much time a student was required to spend in a particular teacher’s
classroom, the witnesses generally testified that for some portion of the day,
each student was required to check in and work with a specific teacher, but
that for the rest of the day, the students were independent and could choose
where to work. The school used timecards to determine students’ credit
toward each class.
Shelburne taught math, physical education, and several electives at
MLHS from 1994 to 2010. MLHS had three principals during that time
period—Odus Caldwell from 1986 to 2007, Collura Franklin from 2007 to
2009, and Wendy Garcia from 2009 to June 2011. The four classrooms at
3
MLHS are connected to each other and to the principal’s office. Shelburne’s
classroom was located next to the principal’s office; when leaving the office,
one would walk through Shelburne’s classroom to reach any other classroom.
Caldwell and Garcia both testified at trial that they would walk through the
classrooms multiple times per day observing staff and students; in addition, if
the principal’s office door was open, he or she could see directly into
Shelburne’s class.
Multiple witnesses testified regarding the LAUSD policies, code of
conduct, and training on sexual harassment and child abuse. Garcia testified
that administrators and teachers received semi-annual training on the
policies and reporting requirements. She also discussed training on the code
of conduct, including that employees should avoid touching or having
physical contact with students that is not age appropriate or within the scope
of their employment. As mandated reporters, the teachers and
administrators were required to report any suspected abuse by filing a
Suspected Child Abuse Report (SCAR) with the child abuse unit of the Los
Angeles Police Department (LAPD), as well as an LAUSD incident report.
B. Appellant
Appellant began attending MLHS in September 2010, after she was
expelled from her prior school for throwing a book at the dean. She testified
that Shelburne first touched her during her first week at the school. She was
sitting in the back of Shelburne’s classroom, when he “came and rested his
body really close to mine.” She described that Shelburne leaned over her
desk, with one hand on her desk and the other hand on her back. He also
pressed his body into hers, so that she “felt his stomach and his thing.” She
moved away from him and he eventually walked away. Afterward, she
“thought it was in [her] head” and did not tell anyone because she was
scared.
Appellant testified that Shelburne also touched her and made her
uncomfortable and scared later that same day, during volleyball class. He
told her he was going to teach her to serve the ball, then stood behind her and
put his arms around her so that she could feel his arms and stomach. He
started massaging her hands. He then moved away, caressing her arms as
he did so.
4
In addition, appellant detailed other instances of touching by
Shelburne when she would approach his desk to have him approve her time
card or retrieve other paperwork. She testified that Shelburne hugged her
from behind about four times, and that she could feel his stomach and penis.
He also hugged her from the front eight or nine times, tightly enough so that
her chest was on his. After the first instance, she told then-principal Garcia
about the hugging, that she was very uncomfortable and Shelburne was
being “very inappropriate.” According to appellant, Garcia responded that
Shelburne was a good teacher and it was “probably just me.” Appellant said
that she then “cussed [Garcia] out.”
About a week later, on October 26, 2010, appellant was sitting in
Shelburne’s classroom when he came up and asked if she needed a ride home.
She said no and started to get up. Shelburne had one hand on the classroom
door and put his other hand under her clothes, touching her bare buttocks.
Appellant left the room, feeling like the encounter was her fault.
The following day, October 27, appellant was again sitting in the back
of Shelburne’s classroom. Shelburne called her to his desk, but she ignored
him; he called her name louder and then enlisted other students to get her
attention until she went up to him. He showed her a paper but would not
give it to her unless she came closer. When she did, he put his hand on her
buttocks, under her clothes. Appellant did not remember how she responded,
but testified that Shelburne yelled at her to get out of his class, and she left
crying. She went to the bathroom.
Later that morning, appellant’s friend, Tania R., convinced her to
report the incident to Garcia. Appellant testified that she did not want to
speak to Garcia, because “I tried talking to her before.” But she agreed to go
with Tania, who had been in the classroom during the incident. Appellant
told Garcia only that Shelburne had touched her back; she did not report
everything that happened because she was scared Garcia would not believe
her. Garcia asked appellant to prepare a written statement reporting what
had happened. In the statement, appellant stated that she “felt weird when
[Shelburne] put his hand on my back. Like it just didn’t feel normal.” She
moved away and told him, “don’t touch me.” Shelburne then “told me to leave
his class so I did.”
5
Appellant called Garcia two days later with additional information.
She testified that her father “forced” her to make the telephone call because
he wanted her to tell Garcia everything. According to Garcia’s report of that
call, appellant said Shelburne “didn’t just touch her on the back...he touched
her on the behind” more than twice. Garcia asked appellant to come back to
school to provide another report, but appellant was hospitalized shortly
afterward for cutting her arms and legs and threatening to kill herself.
Appellant remained in the hospital for several days on an involuntary hold.
C. Other reports of potential misconduct
In September of 2009, about a year prior to the incident between
appellant and Shelburne, Garcia met with several female students and
MLHS teacher Janet Silverstein regarding their complaints about Shelburne.
That meeting was documented by Garcia in a single page of notes dated
September 29, 2009. As reflected in the notes, the students first complained
about a comment by Shelburne that “If [student] fell forward her face would
not hit the ground.”2 The students also told Garcia that they had “heard
before coming to Leonis that Mr. Shelburne was a ‘perv.’ That he patted
them on their back and made comments.” Garcia’s notes reflect that she
asked the students if they were uncomfortable going into Shelburne’s
classroom and they said they were not. The students’ statements about
Shelburne being a “perv” and patting them were admitted at trial through
several witnesses, along with Garcia’s redacted notes.
Tania, appellant’s friend, attended MLHS from 2008 to 2013 and had
several classes with Shelburne. She testified that she did not like going up to
Shelburne’s desk because “he tended not to have eye contact with you.” As
she would hand over her time card, he would “hit your breast, like random
weird things like that. Accidental or not, but still not comfortable.” She did
not think Shelburne touching her breast was accidental more than maybe the
2 This portion of the notes was redacted from the version admitted at
trial as Exhibit 23. As discussed further below, prior to trial, the court
granted two motions in limine filed by LAUSD, excluding evidence of conduct
by Shelburne other than conduct involving touching. As a result, the exhibit
and testimony about the students’ complaints did not discuss the substance of
the comment Shelburne made or the investigation subsequently done by
Garcia.
6
first or second time. After he hit her breast two or three times, Tania started
avoiding Shelburne by asking the student teaching assistant to clock her out.
Tania also testified that Shelburne would go around the classroom
“massaging” students on the shoulders or lower back, saying they “looked
stressed out” and patting them on the back. She felt there was no choice,
because “as long as you played nice, he let you get away with things and let
you do whatever you want as long as you kind of kept him on your good side.”
He would also touch her when teaching how to serve in volleyball, standing
right behind her so that she could feel his belly behind her and his hands on
her hands. She felt “uncomfortable” and that the conduct was “kind of
disrespectful.” Tania stated that sometimes when Shelburne talked to her or
other students, he would “place his hand on your hand or on your arm, on
your leg.”
Tania testified that she saw Shelburne touch appellant on multiple
occasions, including during volleyball practice and leaning over to explain a
math problem. Tania stated that she was in the classroom during the
incident between appellant and Shelburne on October 27, 2010; she did not
see where he was touching appellant, she looked up when appellant said
something to Shelburne and saw “his hand coming off.” She said that “every
time you saw Shelburne, his hands was coming off of somebody.” Tania
claimed it was a “shock” for appellant to verbally react, because “nobody
really says nothing. Everybody goes with it.” When appellant spoke out,
everyone stopped and looked, Shelburne turned red, and appellant’s eyes
became watery. Shelburne then got mad and kicked appellant out of the
classroom.
Tania found appellant outside of class and convinced appellant to talk
to Garcia. In addition, Tania and several other female students complained
to Garcia that day. Tania testified that they “gave [Garcia] our thoughts and
concerns and how things weren’t being done, even it being said for a couple
years already. Kind of like everybody had enough already.” Tania told
Garcia about prior disrespectful comments made by Shelburne, as well as the
touching, said that she felt uncomfortable, and asked if there was any way to
switch to classes not taught by Shelburne. Tania also wrote a statement on
October 27, 2010, reporting that appellant had told her Shelburne “was
7
holding her lower back,” appellant told him not to touch her, and Shelburne
kicked appellant out of class.
Tania testified that she met with Garcia two or three times to report
that Shelburne touched her. She could not recall complaining to Garcia in
2009.
Silverstein testified that she felt “incredibly strongly” that Shelburne
“had caused harm to the students, and I was glad that this was being
followed up with.” She was a teacher at MLHS from 2007 to 2012.
Silverstein stated that from 2007 to 2009, during Franklin’s tenure as
principal, Silverstein saw Shelburne hug female students, massage their
shoulders, and rub their hands. She also saw him stare at the breasts of
female students. In addition, female students reported to her negative
behavior by Shelburne and told her that they were uncomfortable with him
touching them. Silverstein testified that she did not feel it was appropriate
for her to report this to the principal, so she encouraged the students to do so.
She continued to observe this behavior between 2009 and 2011 under
principal Garcia. In total, students reported to her over half a dozen times
that they were uncomfortable with Shelburne’s behavior. Silverstein testified
that she encouraged them to report to Garcia, and she also followed up
directly with Garcia and discussed those reports. She discussed complaints
regarding physical touching several times with Garcia and believed that
Garcia was keeping a log of the complaints. She received a complaint from
one male student regarding Shelburne’s touching of his girlfriend; that
student told Silverstein that he wanted to be violent toward Shelburne
because of the touching.
Silverstein also testified generally regarding an instance when three
students came to her to report a comment made by Shelburne. She could not
recall when that occurred. She also could not recall whether there was any
instance when she went to Garcia with a complaint and it resulted in a
SCAR. In response to a question by LAUSD’s counsel, she began to state that
she thought Garcia “was aware when she came on board . . . that Mr.
Caldwell, a prior principal, had already started documenting . . .” LAUSD’s
counsel cut her off, objected to his own question based on the rulings on the
motion in limine, and proceeded to a different question.
8
Silverstein acknowledged that she was a mandatory reporter, but
stated she felt she had done her job by reporting the conduct to the principal.
She also said that she felt the touching was inappropriate, but not abuse.
However, she testified that, in retrospect, she should have formally reported
it and regretted failing to file SCARs based on the students’ reports of
touching.
Nicole Rose-Manning worked at MLHS as a special education trainee,
then assistant, from 2005 to 2010. She testified that she worked in all of the
classrooms helping students, but spent most of her time working on math in
Shelburne’s class. She said that Shelburne “made me feel uncomfortable in
different ways” including in his comments to her and things she witnessed in
class. According to Rose-Manning, Shelburne showed “complete favoritism”
toward the female students, including allowing girls to wear flip-flops in P.E.
and allowing female students to input time on their own timecards. Under
Caldwell, she often saw Shelburne hugging female students. She described
seeing Shelburne engaging in “a lot of close hugging,” putting one arm
around students, and putting his hand on a girl’s leg or thigh. She did not
report this conduct to Caldwell because she was new and scared of the
principal.
Rose-Manning continued to witness the same conduct when Franklin
was principal, and she reported it to Franklin three times. She also saw the
same conduct under Garcia and reported one incident. She was not aware of
any investigation following that report. She did not witness anything
involving appellant, as Rose-Manning left in March 2010.
Robin Cunningham worked at MLHS from 2006 to 2012 as the office
manager under Caldwell, Franklin, and Garcia. She testified that Caldwell
and Garcia mostly kept the door to the principal’s office open; Franklin kept
the door mostly closed during her time as principal. Cunningham admitted
that she thought Shelburne was creepy. She saw him hug students, but
stated that she did not think the hugs were inappropriate. She denied seeing
Shelburne touch students’ hands or massage their shoulders, and denied ever
telling Garcia that Shelburne was touching students inappropriately.
Cunningham was not aware of any complaints to Garcia about Shelburne by
appellant, any other student, or Silverstein prior to October 27, 2010. She
9
also testified that she thought Garcia’s investigation following appellant’s
October 27, 2010 complaint was “extremely” thorough.
D. Principals Caldwell and Garcia
Caldwell testified that he performed teacher evaluations, including of
Shelburne, every two years. He did not recall receiving complaints about
Shelburne after Shelburne started in 1995. He did not recall documenting
any complaints or initiating any investigations related to Shelburne. He
never saw Shelburne touching a student’s private parts and never received
any such complaint. Caldwell considered Shelburne one of the best teachers
at the school and gave him positive performance evaluations.
Garcia testified that when she came to MLHS as principal, she worked
closely with Caldwell during the transition, but never spoke to Franklin, who
had left at the end of the prior school year. When she began as principal, no
one on staff told her about any complaints about Shelburne touching
students. However, Cunningham did say Shelburne was “sleazy.” Garcia
testified that she observed the teachers and students very carefully and “was
in and out of those [class]rooms all day long.”
Garcia denied that Rose-Manning ever reported that Shelburne
touched students inappropriately. She did receive a complaint in September
2009 from Silverstein and two students. As documented in her notes, the
students reported that they “had heard before coming to Leonis that Mr.
Shelburne was a perv and that he patted them on the back and made
comments.” Garcia interpreted this as meaning that the students were
reporting rumors of patting, not that they had personally been touched by
Shelburne or seen him do so. Both students told Garcia they were not
uncomfortable returning to Shelburne’s classroom. Garcia did not file a
SCAR regarding this report of touching, but testified vaguely that she did file
one for something else at that time. She did not testify as to that SCAR
report or detail the comment that precipitated it. Garcia did not recall
whether she discussed the patting allegation with Shelburne or documented
it in his file. She did not do any reporting or investigation related to the
patting. She did acknowledge that the allegation regarding patting “raise[d]
a red flag.”
10
Garcia did not recall receiving any complaint from appellant prior to
October 27, 2010. She received four complaints on the morning of October 27,
2010. The first was by Tania, reporting what had happened to appellant.
Garcia had Tania write a statement and asked her to try to convince
appellant to come speak with her. About a half hour later, Garcia received a
complaint from a second student, who said she witnessed the interaction
between Shelburne and appellant. This student wrote a report, stating that
she saw Shelburne’s “hand backing off but I didn’t see it on [appellant].” The
student said that appellant told her “she doesn’t like it when he touches her
that next time she’s going to tell him off.”
The third report that morning came from appellant, a short time later.
According to Garcia, appellant was very quiet and soft-spoken during the
interview and appeared to be sincere. Garcia agreed that the conduct
appellant reported was sexual harassment and sexual abuse under
respondent’s policies. She asked appellant to write a statement.
Garcia received a fourth complaint from another student, B.P., later
that morning. B.P. wrote a statement and told Garcia that Shelburne had
touched her and her friends. Garcia completed a SCAR based on B.P.’s
report.
Garcia then called the district office and reported the allegations; she
also filed a SCAR based on appellant’s complaint. Appellant called her two
days later and reported additional information. Appellant seemed upset
during the call, and Garcia felt appellant was afraid to talk because she was
whispering. During that call, appellant told Garcia that Shelburne had also
touched her on the buttocks, more than twice. Garcia then prepared an
updated report with this information. She also filed an LAUSD incident
report.
Garcia detailed at length her investigation following the October 27,
2010 complaints. She met with appellant’s parents and interviewed other
students. She sent Shelburne home the following day, October 28, 2010. She
told Shelburne not to speak with any of the students about his absence or
anything regarding the situation. Shelburne then took a leave of absence and
ultimately retired in April 2011.
11
Following Garcia’s updated SCAR on October 29, 2010, investigating
officers from the LAPD interviewed the students with Garcia present.
According to Garcia, B.P. told the officers, consistent with her prior report,
that Shelburne touched her leg and lower back while assisting her in the
classroom. B.P. also said that Shelburne touched all of the students in this
manner and she was uncomfortable around him. Tania told the officers that
Shelburne touched her and other female students on the back and the legs.
She also reported that Shelburne sometimes stood behind students and
looked over their shoulders and it made her very uncomfortable. Appellant
was not present for the LAPD interview because she was hospitalized at the
time. Garcia also acknowledged her notes reflecting other statements made
by students during the course of the investigation, including several
references to Shelburne pressing his belly against a student, holding a
student’s hand, standing “way too close,” touching a student’s hips, and
grabbing “you by your waist. He’s a pervert. He likes to hug.”
E. Shelburne
Shelburne testified that prior to October 2010, he had never been
subject to a claim that he had inappropriately touched a student and no one
had complained to him about any touching or standing too close. He denied
all of the conduct alleged. In response to appellant’s claim that she could feel
his erect penis against her on several occasions, Shelburne testified that he
had been taking blood thinners since 2006, which “makes it practically
impossible” to have an erection; in fact, he stated that he had not had one
since 2006. Shelburne was interviewed by the LAPD and the city attorney’s
office as part of the investigation. He testified that he was told it was a “he-
said she-said” issue and the matter would not be pursued. Conversely, the
LAPD did not determine that the report of suspected child abuse was
unfounded.
F. Experts
Both parties presented testimony from education experts regarding the
standard of care for the district. Appellant’s expert, Dr. Marian Stephens,
acknowledged that LAUSD’s policies were “excellent” but nevertheless opined
that LAUSD did not meet the standard of care, because “they were faced with
information that told them, at various stages, that there were students at
12
risk . . . subjected to kind of inappropriate behaviors on the part of the
teacher that made them uncomfortable,” which administrators failed to
adequately report or thoroughly investigate. Dr. Stephens also discussed
grooming conduct that could lead to child abuse, such as where a teacher has
“more and more contact with the student and offers to give the student rides
home where they can be alone in the car; offers to assist the student . . .
again, having increased contact and even, to some extent, touching.” She
noted that the touching could be subtle at first, such as hugging or minor
body contact, to test the victim’s comfort level and response. She opined that,
in this case, the reports of patting should have been identified and addressed
as potentially inappropriate. She also testified that LAUSD had notice of
inappropriate touching by Shelburne as early as September 2009. She did
not have any criticism of Garcia’s handling of the incident from October 27,
2010 onward.
Defense expert Larry Perondi opined that Garcia’s response was
appropriate to both the 2009 and 2010 complaints. He acknowledged that the
report of touching in 2009 would obligate the principal to investigate.
Both parties also presented psychological experts, who diagnosed
appellant with various disorders, opined whether any of those disorders were
caused by the incident with Shelburne, and opined as to appellant’s
emotional distress and damages.
III. Verdict and Judgment
After a nearly two-week trial, the jury returned a verdict in LAUSD’s
favor. In response to the first question of the special verdict—“Do you find
that James Shelburne, as an employee of [LAUSD], posed a risk of sexually
abusing students?”—the jury answered “no” by a vote of ten to two.
The court entered judgment in LAUSD’s favor. Appellant timely
appealed.
DISCUSSION
I. Exclusion of Evidence
Appellant contends the court erred by excluding all evidence of prior
inappropriate conduct by Shelburne that did not involve physical touching of
students. She argues that by doing so, the court excluded “a substantial body
of evidence” relevant to showing that Shelburne posed a risk of sexual abuse
13
to the students and that LAUSD knew or should have known of such a risk.
We agree. The trial court abused its discretion by finding that the only
evidence relevant to this case was other instances of physical touching and
excluding other relevant evidence, such as a sexual comment by Shelburne to
a student that was egregious enough to trigger an investigation by the school.
Further, this error was prejudicial to appellant, as it distorted much of the
evidence presented and severely hampered appellant’s ability to present her
case.
A. Legal standards
Under Evidence Code3 section 352, a trial court has the discretion to
exclude otherwise relevant evidence when its probative value is substantially
outweighed by “the probability that its admission will . . . create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.”
We review the trial court’s ruling excluding evidence under section 352 for an
abuse of discretion. (People v. Fuiava (2012) 53 Cal. 4th 622, 663; People ex
rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal. App. 4th 619, 639.)
“‘Discretion is abused whenever, in its exercise, the court exceeds the bounds
of reason, all of the circumstances before it being considered.’” (Denham v.
Superior Court (1970) 2 Cal. 3d 557, 566; see also People v. Carrington (2009)
47 Cal. 4th 145, 195 [an abuse of discretion is “established by ‘a showing the
trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice’”].)
It is well established that “school personnel owe students under their
supervision a protective duty of ordinary care.” (C.A. v. William S. Hart
Union High Sch. Dist. (2012) 53 Cal. 4th 861, 865 (C.A.); Dailey v. Los Angeles
Unified Sch. Dist. (1970) 2 Cal. 3d 741, 747.) Further, “a school district is
liable for the negligence of supervisory or administrative personnel who
knew, or should have known,” of the foreseeable risk to students of sexual
abuse by an employee and nevertheless hired, retained, and/or inadequately
supervised that employee. (C.A., supra, 53 Cal.4th at p. 865.)
In C.A., a student sued his school district for negligent hiring,
retention, and supervision, based on alleged sexual harassment and abuse by
3All further statutory references are to the Evidence Code unless
otherwise stated.
14
his high school guidance counselor. (C.A., supra, 53 Cal.4th at p. 866.) The
Supreme Court held that school authorities, by the nature of their special
relationship with their students, have “a duty to ‘supervise at all times the
conduct of the children on the school grounds and to enforce those rules and
regulations necessary to their protection,’” which “includes the duty to use
reasonable measures to protect students from foreseeable injury at the hands
of third parties.” (Id. at pp. 869-870.) The court then concluded that the
school district could be liable for the negligent breach of that duty by district
employees acting within the scope of their employment. (Id. at p. 879.) With
this framework in mind, we turn to the evidence at issue here.
B. Background
1. Motions in limine
Prior to trial, LAUSD filed motion in limine number 1, seeking to
exclude evidence of alleged bad acts by Shelburne “directed to parties other
than plaintiff,” and motion in limine number 5, to exclude evidence of alleged
bad acts by Shelburne “unrelated to plaintiff’s negligence claim.” In
particular, LAUSD sought exclusion of the following evidence:
(1) Comments by Shelburne to students that LAUSD claimed were
“non-sexual” but otherwise inappropriate. Most notably, this included the
2009 comment Shelburne made in front of his class about the size of a
student’s breasts, that : “If [student] fell forward her face would not hit the
ground.” Several students reported this comment to Garcia at the time it was
made.
(2) Shelburne’s offers to give female students a ride home. LAUSD
argued that several students reported such offers only after the incident with
appellant on October 27, 2010. Appellant argued that the evidence was
relevant to show actual or constructive notice to LAUSD; it is unclear from
the record before us whether there was any evidence that anyone complained
to administrators about this issue prior to October 2010.
(3) Questions from Shelburne to female students about their boyfriends
and sexual experiences. Appellant proffered testimony by Rose-Manning, the
assistant teacher, that she was in Shelburne’s classroom in 2007 and heard
him ask students about their first sexual experiences (unrelated to any
educational matter), and students complained to her that the inquiry made
15
them uncomfortable. Rose-Manning also stated that she heard Shelburne
make inappropriate comments to female students about having boyfriends
and how they were treated by their boyfriends, and that she complained
about these comments to Franklin. During the investigation into appellant’s
claims in 2010, B.P. told police that on October 25, 2010, Shelburne
approached her and said, “You are so pretty, do you have a boyfriend? Does
he treat you like the princess you are?” She said the questions made her
uncomfortable.
(4) Photographs of students taken by Shelburne, which he kept on his
computer and posted on his personal Facebook page, as well as Facebook
friend requests sent by Shelburne to female students. It appears undisputed
that Garcia first discovered these photographs on Shelburne’s computer in
his classroom and his district-issued laptop during the investigation in
October 2010. Appellant claims that LAUSD’s expert, Perondi, was shown
the picture of a female student posted to Shelburne’s Facebook page during
Perondi’s deposition. Perondi testified that the picture was “more sexual in
nature than not,” and that posting the picture was a violation of the LAUSD
code of conduct. Appellant’s counsel also stated that former principal
Caldwell would testify “that he went into the darkroom at [MLHS], found
inappropriate photographs and reported [Shelburne] to the school district,”
and that the district took “some action” in response that did not include
disciplining Shelburne.
(5) Favoritism by Shelburne toward his female students. This included
claims that Shelburne let his female students violate the dress code, approve
their own timecards, drink in class, and store drugs in his classroom. Rose-
Manning claimed she had complained about this issue to Franklin.
LAUSD argued that this evidence was irrelevant to appellant’s claim,
did not put the district on notice of any relevant conduct, and was prejudicial
to LAUSD. Appellant opposed the motions, arguing that the evidence was
highly relevant to establish that the district knew or should have known that
Shelburne was likely to engage in “sexually deviant behavior” with students,
and failed to protect appellant from this risk.
The court first heard argument on the motions in limine at a hearing
on March 23, 2017, although the motions had not yet been fully briefed by
16
either party. Turning to LAUSD’s motion in limine number 1, the following
exchange occurred:
“The court: Yes, they should be excluded. I know there are a number
of facts that should be excluded. We’re talking about touching -- your
client has been touched.
“Mr. Khehra [appellant’s counsel]: It goes to the issue of notice, your
honor.
“The court: How has she been touched? What is it, twice, or what?
“Mr. Khehra: Several times, your honor. It’s . . .
“The court: Patting on the rear end or touching the breast? What is it?
“Mr. Khehra: Rubbing his privates on her and then actually grabbing
her buttocks as well. And the issue with the other prior bad acts, this
is not a classic case of character evidence or anything like that. These
bad acts go directly to the issue of notice.
“The court: Well, these other bad acts are not important as to his acts .
. . We’re concerned about the touchy-feely item. They would be
excluded unless you have another reason to bring all that.
“Mr. Khehra: For notice, your honor. . . . All of these other prior
allegations and his history and his conduct as a teacher at the school,
all goes to the issue of notice, that the administrators should have
known what was going on with this teacher and he was unfit for his
job.”
The court stated it was deferring a decision but indicated it would
likely exclude the evidence “other than something of touching of other
students,” finding that the other evidence “is a 352 problem.” The court made
the same determination regarding motion in limine number five, stating that
“anything that’s touching, that’s fine, but not other limits. 352 on that.”
At the next hearing,4 the court reiterated that it would allow evidence
related to “touching or hugging” only. The court suggested that some of the
4 During this hearing, the court also denied several of appellant’s
motions in limine, including those seeking to exclude evidence of appellant’s
prior sexual relationships and prior sexual abuse against her. In response to
appellant’s petition, we issued a notice of intention to grant a peremptory
17
other alleged acts, such as offering female students rides home, were not
reported until after the incident at issue occurred. Appellant’s counsel
argued that the evidence helped to establish a pattern slowly escalating
toward touching. The court responded: “To give someone a ride home is
going to lead to touching, no. . . . 352 on that issue.” Similarly, appellant’s
counsel argued that Shelburne’s questions to female students about their
boyfriends was evidence of grooming. The court responded: “This is what
people ask: do you have a boyfriend, how are you doing. . . . 352. We’re not
getting into that, counsel.”
At a subsequent hearing, LAUSD’s counsel asked for clarification as to
whether the court was excluding the comment Shelburne made in 2009
“about a girl falling forward -- she has large breasts. If she fell forward, she
wouldn’t hit her face. . . . I would assume that under the court’s ruling that
would be out as well.” LAUSD’s counsel further argued that the comment
was “a bad joke, which [Shelburne] admitted to, made in class,” and that
Shelburne was disciplined for it. Appellant’s counsel argued that it was
sexual in nature and was relevant to notice because the comment led to an
investigation by the district. The argument continued:
“The court: You have a 352 -- no. I’m not going to allow that.
“Mr. Carillo [Appellant’s counsel]: Your honor, this is sexual
harassment.
“The court: Sexual harassment when a girl is falling?
“Mr. Carillo: Yes, your honor. Mr. Shelburne was actually brought in,
given a conference memo, a SCAR . . . was prepared. . . . This is pure
notice evidence, your honor, because it put the district on notice the
year prior to our client coming in that. . . . Mr. Shelburne . . . could
have the propensity to touch kids.
“The court: No. That goes too far. Touch kids? No. That will not be
allowed. . . . It’s a statement he made. It doesn’t show touching or
notice of touching, so that will not be allowed.”
writ of mandate on this issue. The trial court then granted appellant’s
motions and excluded the evidence from trial.
18
Later during the hearing, when appellant’s counsel again argued that the
evidence was admissible and “not 352, your honor, because it is sexual,
because it is a sexual comment about a girl,” the court queried, “A comment
about a girl falling?” Appellant’s counsel responded that the comment “puts
the district on notice that Mr. Shelburne is engaging in unlawful and
unpermitted sexual conduct.” The court disagreed, stating: “No. That does
not show that. It shows he made a comment -- what you would call a risque
comment, but I don’t know if it’s risque in that situation. No. That’s
excluded.”
2. Effect at trial
As a result of the court’s rulings on the motions in limine, no evidence
was presented at trial regarding the substance of Shelburne’s 2009 comment,
details regarding the SCAR prepared by Garcia as a result of that comment,
or any resulting investigation.5 However, several witnesses did refer to the
comment, often in the course of discussing the portion of the 2009 complaint
that involved touching.
For example, during cross-examination, Silverstein testified about
receiving complaints from several students and that she followed up with the
principal more than once, but could not remember the timing. When
LAUSD’s counsel asked her about “the nature of the allegation” made by the
student, Silverstein started to explain that the complaint was about “falling
on the face,” but immediately afterward was cut off by LAUSD’s counsel and
directed to focus on “physical touching.” The court reiterated, “We’re talking
about physical touching. That’s what the case is about.” LAUSD’s counsel
also questioned Silverstein at length about the fact that there were no
written reports generated based on complaints she received about touching
prior to October 2010, suggesting that the 2009 touching reports were less
serious. During redirect examination, appellant’s counsel asked whether
Silverstein was “aware of at least one time where [a prior complaint] did
5Similarly, there was no evidence admitted at trial regarding
Shelburne’s alleged questions to female students about sexual experiences or
having boyfriends, offering them rides home (except for appellant’s testimony
about Shelburne’s offer to her), or taking, keeping, or posting photographs of
female students.
19
result in documentation and a SCAR report?” Silverstein stated that she did
not remember. When appellant’s counsel tried to ask about additional details
related to the 2009 comment, the court sustained several objections by
LAUSD’s counsel based on the motion in limine. Ultimately, Silverstein did
not testify regarding her knowledge of Shelburne’s comment in 2009 or the
ensuing SCAR and investigation.
Similarly, during Tania’s testimony, she stated that she could not recall
whether she spoke with Garcia about Shelburne touching her prior to
October 2010. When appellant’s counsel attempted to refresh her recollection
using exhibit 23 (Garcia’s notes from 2009), the court sustained respondent’s
objection based on the motion in limine. After further questioning, Tania
again testified that she could not recall reporting any conduct prior to
October 2010.
In addition, appellant’s expert, Dr. Stephens, referred in her testimony
to a comment by Shelburne “that was sexual in nature” and “inappropriate”
as an example of an instance where Garcia failed to appropriately report or
investigate Shelburne’s behavior. During cross-examination, LAUSD’s
counsel focused on notice to the district related to Shelburne’s alleged
touching of appellant, much of which Dr. Stephens agreed was only
discovered in October 2010. Dr. Stephens’ attempts to refer to other, prior
conduct were restricted based on the rulings on the motions in limine.
In closing arguments, LAUSD’s counsel argued that in all of
Shelburne’s years of teaching, the only notice to the district was “one
complaint in 2009 about a comment only, not touching, and then the
following year there was one complaint about low-back touching.” He then
cautioned the jury to “be careful” with respect to exhibit 23, Garcia’s notes
from the 2009 interview with students (redacted to remove the comment),
stating that the basis of the exhibit, “which is a single verbal comment, not
touching, was excluded from this trial due to lack of relevance. That’s why
you didn’t hear what the comment was.” He continued to refer to the exhibit
throughout his closing argument, arguing that the comment was irrelevant
and the exhibit was “innocuous.” Counsel further suggested that that “not
once during her direct exam did [Tania] ever say she felt unsafe in class, or
did she say anything about comments.”
20
C. Analysis
1. Exclusion under Evidence Code section 352
Appellant contends the trial court erred in excluding evidence under
section 352 of all conduct by Shelburne other than touching. As an initial
matter, she argues that the evidence was relevant and therefore admissible.
“Relevant” evidence is evidence “having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (§ 210; see also, e.g., People v. Scheid (1997) 16
Cal. 4th 1, 13–14 [“The test of relevance is whether the evidence tends
‘“logically, naturally, and by reasonable inference” to establish material
facts,’”].) Here, appellant asserts that the evidence at issue was relevant to
prove that there was a foreseeable risk of harm to her. We agree that at least
some of the excluded evidence was relevant to this issue.
As the court in C.A. explained, a negligent supervision claim depends,
in part, on a showing that the risk of harm was reasonably foreseeable.
(C.A., supra, 53 Cal.4th at p. 869-870; see also Leger v. Stockton Unified
School Dist., supra, 202 Cal.App.3d at p. 1459 [“The existence of a duty of
care of a school district toward a student depends, in part, on whether the
particular harm to the student is reasonably foreseeable.”].) “Foreseeability
is determined in light of all the circumstances and does not require prior
identical events or injuries.” (M. W. v. Panama Buena Vista Union School
Dist. (2003) 110 Cal. App. 4th 508, 518–519 (M.W.), citing Frances T. v. Village
Green Owners Assn. (1986) 42 Cal. 3d 490, 502–503.) “‘It is not necessary to
prove that the very injury which occurred must have been foreseeable by the
school authorities. . . . Their negligence is established if a reasonably
prudent person would foresee that injuries of the same general type would be
likely to happen in the absence of [adequate] safeguards.’” (Ibid.; see also
Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at p. 1460
[harm reasonably foreseeable from threats of violence known by school
authorities even where violence had yet to occur].)
In M.W., for example, the court found the school district owed a duty of
care to a student who was sexually assaulted by another student in a school
bathroom. (M.W., supra, 110 Cal.App.4th at p. 511.) The court concluded
that the risk of assault was foreseeable based on (1) the district’s lack of
21
supervision in the early morning when the assault occurred in a known
“trouble spot,” (2) the assailant’s extensive prior record of discipline; and (3)
the unique vulnerabilities of special education students such as the victim.
(Id. at pp. 519-520.)
As such, to support her negligent supervision claim, appellant had to
prove both that Shelburne posed a risk of harm to students and that the risk
of harm was reasonably foreseeable, i.e., that LAUSD knew or should have
known of the risk. (See C.A., supra, 53 Cal.4th at p. 869-870; CACI No. 426.)
Evidence tending to prove either of these elements was relevant to her claim.6
Here, the trial court appeared to conclude that the evidence related to
touching was relevant to the foreseeability analysis, while any other
evidence, even if sexual in nature and directed toward female students, was
not. LAUSD cites no authority to support this premise, and we have found
none. The arbitrary nature of this determination was evidenced by the fact
that the court admitted the students’ reference to touching in 2009, which all
witnesses seemed to agree was comparatively minor, while excluding the
sexual comment that prompted the students to complain in the first place
and spurred Garcia to investigate. This allowed LAUSD to argue that the
touching incident in 2009 was not serious enough to require an investigation,
while preventing appellant from introducing evidence showing conduct that
was investigated, simply because the latter conduct was not physical
touching. Indeed, appellant was permitted to elicit expert testimony
regarding types of grooming behavior that could lead to sexual abuse, but
was prevented from offering evidence that Shelburne had engaged in such
behavior and that the district knew or should have known about it.
LAUSD also contends that most of the excluded evidence was
irrelevant to notice because it involved conduct that was not reported or
discovered until October 2010. While it appears to be undisputed that the
district was unaware of certain conduct prior to October 2010, such as
6As such, evidence relevant to whether Shelburne posed a risk of harm
could be admissible, even if that evidence did not also demonstrate notice. Of
course, the court retains the discretion to exclude such evidence under section
352 as, for example, unduly prejudicial or inflammatory. Here, because the
trial court concluded any evidence other than touching was irrelevant, it did
not reach this step.
22
Shelburne taking photographs of female students and posting them on
Facebook, appellant offered witness testimony that much of the conduct was
reported prior to that time. Moreover, given that the standard is what the
district knew or should have known, the court’s blanket exclusion of this
evidence was error. For example, appellant’s proffer of evidence that the
district had notice of Shelburne’s potentially inappropriate conduct involving
photos of students while Caldwell was principal is relevant to appellant’s
argument that the district should have investigated and discovered
Shelburne’s later conduct in taking photos of female students and posting
those photos in violation of school and district policies. The court’s failure to
consider this evidence because it was not related to physical touching was
error.7
We do not suggest that all of the evidence proffered by appellant was
improperly excluded. But because the court drew a bright line excluding all
evidence of conduct other than touching, it arbitrarily excluded evidence that
was relevant to appellant’s claim.
Moreover, we find no support for any countervailing considerations
under section 352 of undue prejudice, confusion, or undue consumption of
time, nor did the court make any such findings on the record. Indeed, the
testimony of several of the witnesses was likely more confusing with the
evidentiary exclusions, as both witnesses and counsel struggled to discuss
Shelburne’s past conduct and LAUSD’s knowledge without violating the
court’s orders. As such, we conclude that the court’s order granting LAUSD’s
motion in limine numbers one and five was an abuse of discretion.
2. Prejudice
LAUSD also argues that any erroneous exclusion of evidence was
harmless, because the jury heard information about the 2009 comment other
than its “actual wording,” and because the other evidence excluded was “non-
sexual” and “seemingly innocuous” conduct by Shelburne. We disagree.
7LAUSD argued that the court did not expressly rule on Caldwell’s
proffered testimony regarding the discovery of photos and that appellant
“made no effort to elicit this testimony” at trial. However, as LAUSD
acknowledged, this testimony was squarely within the scope of the evidence
excluded by the court.
23
We review claims of evidentiary error for prejudice applying the
“‘miscarriage of justice’” or “reasonably probable” harmless error standard.
(See Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447, citing People v.
Watson (1956) 46 Cal. 2d 818, 836.) Thus, 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.’” (Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210
Cal. App. 4th 1435, 1449
Thus, a “miscarriage of justice” warranting reversal “should be declared
only when the court, “after an examination of the entire cause, including the
evidence,” is of the “opinion” that it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of
the error.” (Cassim v. Allstate Ins. Co. (2004) 33 Cal. 4th 780, 800; see also
Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal. App. 4th 1435,
1449.) “We have made clear that a ‘probability’ in this context does not mean
more likely than not, but merely a reasonable chance, more than an abstract
possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704,
715.)
Having examined the record, we conclude that the erroneous exclusion
of evidence prejudiced appellant. We are not persuaded by LAUSD’s attempts
to minimize the effect of the content of Shelburne’s comment in 2009–
suggesting that “hearing the actual joke actually would likely have served to
diminish the impact of this evidence.” In contrast to the witnesses’ vague
assertions regarding an inappropriate comment, the comment itself involved
Shelburne’s crude comment on the size of a student’s breasts. This comment,
along with evidence regarding Shelburne’s inappropriate questions to
students about boyfriends and sexual experiences, all of which appellant
claims the district knew about prior to October 2010, was therefore crucial to
her argument that LAUSD knew or should have known of the risk that
Shelburne would commit sexual abuse of a student.
Moreover, the exclusion of non-touching evidence impacted appellant’s
ability to offer otherwise admissible evidence of prior complaints. Several
witnesses became confused when asked to discuss complaints of touching
only, omitting the evidence of inappropriate comments, and were unable to
24
testify about what they had said or when. Capitalizing on this confusion,
LAUSD’s counsel repeatedly suggested, during cross-examination and in
closing argument, that there were no complaints relevant to the case prior to
October 2010. Conversely, appellant’s counsel was unable to offer evidence of
the one complaint—the 2009 comment—that Garcia felt was serious enough
to document in a SCAR, nor could appellant question Garcia or Shelburne
about that comment or whether an adequate investigation was done. As
such, it was reasonably probable that the admission of this evidence would
have led to a result more favorable to appellant.
II. Jury Instructions and Special Verdict
Appellant contends the trial court erred in giving several form jury
instructions, CACI Nos. 3701, 3703, and 426, with modifications proposed by
LAUSD. She also asserts that the same errors occurred in the special verdict
form used. Although we need not reach these issues in light of our reversal
on the basis of the court’s evidentiary rulings, we examine appellant’s claims
as the same issues would doubtless be raised in the event of any retrial. The
propriety of jury instructions is a question of law that we review de novo.
(See Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal. App. 4th 72,
82.)
We agree with appellant that CACI Nos. 3701 and 3703 were
unnecessary and potentially confusing given the issues in dispute in this
case. We find no error with respect to CACI No. 426 and corresponding
issues on the special verdict form.
A. CACI Nos. 3701 and 3703
CACI Nos. 3701, “Tort liability asserted against principal, essential
factual elements,” and 3703, “Legal relationship not disputed,” are part of the
series of instructions regarding vicarious liability. Although appellant
initially requested their inclusion, she later argued that CACI No. 3701 was
unnecessary as the parties did not dispute that principal Garcia, as well as
Franklin and Caldwell before her, were employees of LAUSD and acting
within the course and scope of their employment when engaged in the alleged
negligent supervision at issue. She also objected to LAUSD’s proposed
version of both CACI Nos. 3701 and 3703, which inserted only Garcia as the
25
applicable agent, rather than all three administrators. The court disagreed
and accepted respondent’s proposed version.
Thus, the jury was instructed using CACI No. 3701 as follows:
“[D.Z.] claims that she was harmed by Wendy Garcia’s negligence.
“[D.Z.] also claims that LAUSD is responsible for the harm.
“If you find that Wendy Garcia’s negligence harmed [D.Z.], then you
must decide whether LAUSD is responsible for the harm. LAUSD is
responsible if [D.Z.] proves both of the following:
“1. That Wendy Garcia was LAUSD’s employee; and
“2. That Wendy Garcia was acting within the scope of her employment
when she harmed [D.Z.].”
The jury was similarly instructed using CACI No. 3703:
“In this case Wendy Garcia was the employee of LAUSD.
“If you find that Wendy Garcia was acting within the scope of her
employment when the incident occurred, then LAUSD is responsible for
any harm caused by Wendy Garcia’s negligence.”
First, we agree with appellant that CACI Nos. 3701 and 3703 were
unnecessary and potentially confusing to the jury, as it was undisputed that
the administrators were acting within the course and scope of their
employment with LAUSD during all relevant times. Indeed, the special
verdict did not ask the jury to make any findings on this issue.
Second, we also agree that both instructions as given did not reflect the
scope of appellant’s claim. As proposed by LAUSD, the instructions used
Garcia’s name to replace the bracketed term “name of agent.” The use notes
of both instructions state: “The term ‘name of agent,’ in brackets, is intended
in the general sense, to denote the person or entity whose wrongful conduct is
alleged to have created the principal’s liability.” Here, appellant contended
that MLHS administrators, including Caldwell, Franklin, and Garcia,
negligently supervised and retained Shelburne, causing her harm. Thus, the
wrongful conduct alleged should not have been limited to that committed by
the administrator in place at the time of the injury (Garcia) but rather
reflected the full scope of appellant’s claim. As such, it was error for the court
to give these instructions as proposed by the district. (See Joyce v. Simi
Valley Unified School District (2003) 110 Cal. App. 4th 292, 303 [“An
26
instruction correct in the abstract, may not be given where it is not supported
by the evidence or is likely to mislead the jury.”]; Harris v. Oaks Shopping
Center (1999) 70 Cal. App. 4th 206, 209 [“Irrelevant, confusing, incomplete or
misleading instructions need not be given.”].)
B. CACI 426 and special verdict
Appellant also argues that the court erred in giving respondent’s
version of CACI No. 426 as follows:
“[D.Z.] claims that she was harmed by James Shelburne and that
LAUSD is responsible for that harm because LAUSD negligently
supervised and/or retained James Shelburne. To establish this claim,
“[D.Z.] must prove all of the following:
“1. That LAUSD hired James Shelburne;
“2. That James Shelburne posed a risk of sexual abuse towards
students;
“3. That LAUSD knew or should have known that James Shelburne
posed a risk of sexual abuse towards students and that this risk of
sexual abuse towards students created a particular risk to others;
“4. That James Shelburne’s posed risk [sic] of sexual abuse towards
students harmed [D.Z.]; and
“5. That LAUSD’s negligence in supervising and/or retaining James
Shelburne was a substantial factor in causing [D.Z.]’s harm.”
Appellant takes issue with the insertion of “posed a risk of sexual abuse
toward students” into the second, third, and fourth element of the
instruction. The model instruction reads as follows for element two: “That
[name of employee] [[was/became] [unfit [or] incompetent] to perform the
work for which [he/she] was hired/[specify other particular risk]].” (CACI No.
426.) Appellant argues that the instruction should have focused on whether
Shelburne was unfit or incompetent as a teacher. She contends that by using
the phrase “posed a risk of sexual abuse,” the court “imposed a standard
which required Plaintiff to show that evidence of identical prior sexual
misconduct by Shelburne existed.”
We are not persuaded. The language of the instruction used specifies
the particular risk at issue in this case. That is consistent with the model
instruction, which prompts the user to “specify other particular risk,” as well
27
as the use notes, which state: “In most cases, ‘unfitness’ or ‘incompetence’ (or
both) will adequately describe the particular risk that the employee
represents. However, there may be cases in which neither word adequately
describes the risk that the employer should have known about.” It is also
consistent with the case law, discussed above, holding that a claim for
negligent supervision requires a showing of foreseeability of a particular risk
of harm. (See C.A., supra, 53 Cal.4th at p. 869-870; Leger v. Stockton Unified
School Dist., supra, 202 Cal.App.3d at p. 1459.) This standard is echoed in
the cases cited as “sources and authority” for CACI No. 426. (See Lopez v.
Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal. App. 4th
566, 591 [“To prevail on his negligent hiring/retention claim, Lopez will be
required to prove Campos was Watchtower's agent and Watchtower knew or
had reason to believe Campos was likely to engage in sexual abuse.”]; Phillips
v. TLC Plumbing, Inc. (2009) 172 Cal. App. 4th 1133, 1139 [“Negligence
liability will be imposed on an employer if it ‘knew or should have known that
hiring the employee created a particular risk or hazard and that particular
harm materializes.’”].)
Nothing about the instruction deviated from the appropriate
foreseeability analysis or required appellant to show Shelburne committed
identical prior sexual misconduct.8 We therefore find no error with respect to
CACI No. 426 or the corresponding language in the special verdict form.
III. Rebuttal witness
Appellant also contends that the court erred when it refused to let her
call a rebuttal witness to address Shelburne’s claim that he could not have an
erection due to the blood thinners he was taking. She argues that Shelburne
made this claim for the first time at trial and she should have been able to
8 We reject appellant’s argument, raised largely in her reply, that
LAUSD’s duty to supervise its students gives rise to a “separate and distinct”
claim of negligence, as distinguished from its duty to protect her by
adequately supervising Shelburne. Her contention that she had alleged or
shown a broader duty of care that would give rise to liability based on
Shelburne’s general “unfitness”—as distinct from a foreseeable risk that he
would sexually abuse a student— is not supported by the record or by the
applicable case law on foreseeability, discussed herein.
28
call a rebuttal witness to impeach this claim. This issue is moot, given our
reversal on other grounds. We therefore need not reach it.
DISPOSITION
The judgment is reversed and the matter is remanded for a new trial.
Appellant is awarded her costs on appeal.
CERTIFIED FOR PUBLICATION
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
29