S.M. v. Los Angeles Unified School Dist.

Filed 10/7/15 Unmodified opinion attached
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
S.M., a Minor, etc., B253983
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC477194)
v.
ORDER MODIFYING OPINION
LOS ANGELES UNIFIED SCHOOL AND DENYING PETITION FOR
DISTRICT, REHEARING
Defendant and Respondent. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on September 16, 2015, be modified as
follows on page 16, line 8 to read:
Under the facts of this case, plaintiff was required to show only that Hermida
had the potential to sexually abuse minors.
Petition for Rehearing is denied. No change in judgment.
________________________________________________________________________
KIRSCHNER, J. KRIEGLER, Acting P.J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
Filed 9/16/15 Unmodified opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
S.M., a Minor, etc., B253983
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC477194)
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lawrence H. Cho, Judge. Reversed and remanded.
Perez & Caballero, Frank J. Perez and Miguel G. Caballero; Law Office of Shea S.
Murphy, Shea S. Murphy; Esner, Chang & Boyer, Stuart B. Esner and Holly N. Boyer for
Plaintiff and Appellant.
Horvitz & Levy, H. Thomas Watson and Karen M. Bray; Andrade Gonzalez,
Sean A. Andrade for Defendant and Respondent.
This appeal is brought by S.M. (plaintiff) from a judgment in favor of the Los
Angeles Unified School District (the District) on a cause of action for negligent
supervision of a teacher employed by the District, who sexually abused plaintiff on and
off campus over several months while she was attending Edison Middle School (the
school). We reverse the judgment and remand the matter for a new trial.
STATEMENT OF CONTENTIONS
Plaintiff appeals from the judgment in favor of defendant, the District, contending
the court erred prejudicially by (1) modifying CACI No. 426 to require plaintiff to prove
that her teacher had displayed a “dangerous propensity to sexually abuse minors;” (2)
permitting admission of evidence of plaintiff’s sexual history; (3) instructing the jury that
plaintiff could be found comparatively at fault if she “consented” to sex with her teacher;
(4) instructing the jury that the teacher’s intentional torts against plaintiff could be a
superseding cause of her injuries; and (5) instructing the jury on discretionary immunity.
FACTS
a. Undisputed Facts Concerning the Sexual Abuse of Plaintiff
In the fall of 2010, plaintiff was a thirteen-year-old student in the eighth grade at
the school. Her math teacher was Elkis Hermida (Hermida). In October 2010, Hermida
invited plaintiff to be friends on a social networking site. Soon, the two began
exchanging direct text messages on their cell phones. Over time, the messages turned
sexual. Plaintiff turned 14 on December 13, 2010.
In late 2010 or early 2011, Hermida told plaintiff to come to his classroom during
his conference period when he did not have class. He told her to tell her teacher that she
had to use the bathroom. She complied. When plaintiff entered Hermida’s classroom, he
told her to shut the door. He hugged and kissed her.
About a week later, Hermida again texted plaintiff and told her to come to his
classroom. She complied, and he again kissed her.
2
Hermida subsequently approached plaintiff at her desk at the end of math class
and told her that she needed to stay after class. He dismissed the other students, closed
the door and kissed her. He told her that he wanted to have sex with her.
On March 12, 2011, plaintiff told her mother that she was going to a friend’s
house. However, plaintiff left the friend’s house and met Hermida across the street from
the school. He drove her to a motel where they had sexual intercourse.
They also had sexual intercourse at the school. Hermida texted plaintiff and told
her to come to his classroom. He had arranged the furniture in the classroom so that they
could have sex in a hidden alcove in the room and no one would see them. They had oral
and vaginal sex in the classroom with the door closed.
The next time they had sexual intercourse was on a Saturday at a motel. Hermida
told her that they were not in a relationship but were just having sex. At this point,
plaintiff wanted to stop having sexual intercourse with Hermida, but did not feel that she
was free to do so.
The fourth time they had sexual intercourse was also at a motel. Hermida wanted
to have anal sex. Plaintiff objected, but Hermida inserted something into her anus
anyway.
During the time that Hermida and plaintiff were having sexual intercourse,
Hermida sent nude photographs of himself to plaintiff. He requested and received nude
photos of plaintiff. At one point he sent her a video of him masturbating.
In May 2011, one of plaintiff’s friends told a teacher about the relationship
between plaintiff and Hermida. The teacher reported the abuse the next day.
Hermida was promptly arrested. He pled no contest to one count of lewd acts
upon a victim aged 14 in violation of Penal Code section1 288, subdivision (c)(1) and
served time in prison.
1
All further unspecified references are to the Penal Code.
3
b. Hermida’s Conduct at School
The District’s “Code of Conduct with Students” provides that “[t]he most
important responsibility of the . . . (District) is the safety of our students.” The Code of
Conduct states: “All employees, as well as all individuals who work with or have contact
with students, are reminded that they must be mindful of the fine line drawn between
being sensitive to and supportive of students and a possible or perceived breach of
responsible, ethical behavior.” The Code of Conduct outlines certain conduct, which
teachers are “cautioned to avoid,” including “[e]ngaging in any behaviors, either directly
or indirectly with a student(s) or in the presence of a student(s), that are unprofessional,
unethical, illegal, immoral, or exploitive” as well as “[t]ouching or having physical
contact with a student(s) that is not age-appropriate or within the scope of the
employee’s/individual’s responsibilities and/or duties.”
The Code of Conduct further provides: “Even though the intent of the
employee/individual may be purely professional, those who engage in any of the above
behavior(s), either directly or indirectly with a student(s) or in the presence of a
student(s), are subjecting themselves to all possible perceptions of impropriety.
Employees/individuals are advised that, when allegations of inappropriate conduct or
behavior are made, the District is obligated to investigate the allegations, and, if
warranted, take appropriate administrative and/or disciplined [sic] action.”
While the District presented evidence that these were only “guidelines” for
teachers, which was disputed by other testimony, Vice Principal Garcia testified that if it
is reported that a teacher has violated one of the behaviors advised against in the Code of
Conduct, the District is obligated to “meet with the individual at that time and find out
the facts of what the allegations are.” Garcia testified that if someone had reported to an
administrator an appearance of impropriety, the District would have to investigate the
claim, which would include interviewing the teacher, the victim, witnesses, and other
individuals, as well as gathering information in order to determine the truth of the
allegation.
4
Plaintiff presented several instances of conduct by Hermida which she contended
violated the Code of Conduct, were “red flags” and should have alerted the District that
Hermida posed a risk of harm to students.
i. Classroom atmosphere
Ruby A., who was in plaintiff’s eighth grade class, testified that Hermida would
often talk about his personal life, including drinking, going out with friends, problems
with his girlfriend, and other topics with Ruby and her girlfriends. Ruby also testified
that she repeatedly saw Hermida acting inappropriately with female students during his
after school math tutoring sessions. She saw Hermida touching or caressing the hands of
female students in a sexual way.
Fraulein Manligas, a teacher at the school, testified that some of her female
students told her that they thought Hermida was cute. Manligas also testified that when
she would walk by Hermida’s afternoon tutoring sessions, she noticed it was mostly girls
in his classroom. Manligas and other teachers “had a general agreement that he had a lot
of girls in his room.” She further testified that too many girls in a classroom may have
looked bad for Hermida’s reputation. When asked why she never reported this, Manligas
testified: “Why would I report a lot of girls in his tutoring, as something that’s
improper? . . . [T]hat’s not child abuse.”
ii. Hugging
Several students, including Ruby, testified that Hermida would regularly hug
certain girls as they came into his classroom. Jean C., who was in plaintiff’s class,
testified that he saw Hermida hugging girls during passing periods, lunch break and in
class. Hermida would only hug some of the girls. Jean stated that Hermida would hug
the girls every day, and that he did it in front of other teachers and students. According to
Jean, Mr. Agawal, whose classroom was directly across the hall from Hermida’s
classroom, was sometimes in the hallway when Hermida was hugging girls.
5
Ruby explained that Hermida’s hugs with female students were “face to face” with
both arms around the girls. She explained that as she was going to the classroom next
door, she would witness him openly hugging girls as they came into his classroom.
When asked what she thought of this, she said it was not right “[b]ecause he was the only
teacher doing it.”
Ruby also testified Ms. La Conde and Agawal were present in the hallway when
Hermida hugged girls. Once, Hermida hugged plaintiff in the hallway while in the
middle of a conversation with Agawal. Ruby estimated that she saw Hermida hug
plaintiff more than ten times at school.
Hermida himself admitted that he routinely hugged girls as they came into his
classroom during passing period and other teachers were in the hallway when he engaged
in such behavior. He further testified that no one from the school ever said anything to
him about such behavior.
Evidence at trial revealed that teachers were required to stand outside their
classrooms during passing period. The District presented evidence that neither La Conde
nor Agawal saw Hermida hugging female students.
Vice Principal Garcia testified that if a teacher had witnessed another teacher
hugging students on a regular basis as they entered the classroom, such conduct would be
inappropriate and should have been reported to an administrator. He also testified that if
a teacher routinely hugged students entering the classroom, such behavior would violate
the Code of Conduct.
iii. Lying on classroom table
Andrea Mordoh, a teacher at the school, testified that she witnessed
“unprofessional” conduct by Hermida and reported it to the school principal, Coleen
Kaiwi. Mordoh explained that as she was walking by his classroom, she saw Hermida
“lying on his back on one table and he had his cell phone. To me, it looked like he was
texting. And there were two female students sitting at the table next to the table he was
6
lying on, and they were working on something or talking.” Mordoh testified that she felt
the conduct was unprofessional. She noted that the fact that it was two female students,
and not a mix of male and female students, alarmed her and gave rise to the appearance
of impropriety. Mordoh later told her lunch group, which consisted of three other
teachers at the school, of Hermida’s inappropriate conduct.
Mordoh testified that the conduct she witnessed with Hermida lying on his back in
his classroom with female students was conduct falling within the provision of the Code
of Conduct prohibiting employees from engaging in behavior that is “unprofessional,
unethical, illegal, immoral, or exploitive.”
The District never conducted any investigation following Mordoh’s report of
unprofessional conduct by Hermida. Principal Kaiwi never talked to Hermida about the
incident and testified that she does not remember receiving such a report from Mordoh.
iv. Furniture arrangement
Hermida admitted that before he had sex with plaintiff, he rearranged the furniture
in his classroom which created a hidden alcove. He kept his furniture in this arrangement
through the spring semester. The layout of the furniture and the hidden alcove would
have been visible to others visiting his classroom. Hermida stated that he received
comments from coworkers about the furniture layout. According to Hermida, he was
also often visited by school administrators during the time when the hidden alcove
existed. It was in this hidden alcove that Hermida actually had sex with plaintiff.
Vice Principal Garcia testified that if a teacher arranged the furniture in his or her
classroom such that a hidden alcove was created, such behavior would be inappropriate
and unacceptable and would necessitate a discussion with the teacher to dismantle the
hidden area.
The District put on evidence that at the school there were formal and informal
pop-ins of the classrooms. Informal pop-ins are not recorded. Principal Kaiwi testified
that while she is positive she visited Hermida’s class for an observation, she had no
7
record of it. She also did not recall if she ever informally observed Hermida during his
after school tutoring sessions. Vice Principal Garcia testified that he popped into
Hermida’s classroom once or twice during the time when Hermida was a teacher at the
school.
c. School Experts
Plaintiff’s school safety expert, Davis Cowles, testified that in his opinion “even
though the District had good guidelines and a good code of conduct in place, they didn’t
place a high priority on the potential for teacher misconduct towards students. And I felt
that had that been in place, been a more important priority for the administration, that this
whole thing may have been avoided.”
Cowles testified that there were several red flags—the fact that Hermida openly
hugged female students, his rearrangement of the furniture in his classroom, and the
incident reported by Mordoh where he was inappropriately lying on the desk with two
female students—which should have been addressed by the District either with
heightened supervision of Hermida or at least a discussion with him about appropriate
conduct.
Cowles explained that the District “allowed an environment where the potential
for this kind of misconduct could take place.” For example, despite the fact that a student
and teacher should not be alone in a classroom with the door shut, an act prohibited by
the Code of Conduct, the school administrators were not concerned with such behavior
and did not really enforce this prohibition. This lack of concern was shown in Vice
Principal Garcia’s testimony that he did not believe that a teacher alone with a student in
a classroom with the door closed was a violation of the Code of Conduct.
A lack of concern was also shown by Principal Kaiwi’s testimony that there was
no rule against a teacher closing and locking their door during a conference period.
Principal Kaiwi testified that if she passed a classroom where the teacher had locked the
door, it would not raise any red flags to her. When asked if it would cause her concern if
8
she were to open a locked classroom and discover the teacher was alone with a student in
the room, she testified: “Well, it would concern me to the point where I would think I
was interrupting a private conversation.”
The District’s school supervision expert, Edward Sussman, testified that the
District “reasonably supervised . . . Hermida and the plaintiff at the time of the sexual
relationship, that they—the school—had no prior knowledge there was any relationship
between the plaintiff and . . . Hermida, and that they had kept their relationship a
complete secret.” He stated that “in my opinion, it is very difficult, if not impossible, to
determine if two people, whether it be students, teachers, or student-teacher relationship
that want to disregard rules and behaviors, it’s almost impossible for the school to really
do anything about it unless they know this is going on.”
Sussman testified that teachers “must” adhere to the bullet points describing the
inappropriate behavior in the Code of Conduct. He agreed that under the Code of
Conduct, the District must investigate allegations of inappropriate conduct. Although
Sussman at times contradicted his own testimony, stating at one point that the Code of
Conduct was merely a guideline and not a set of prohibitions, he later agreed that
behavior described in the Code of Conduct referring to a teacher not engaging in conduct
that is “unprofessional, unethical, illegal, immoral, or exploitative” is “obviously
something that you need to follow.” He further clarified that nothing says that the
inappropriate conduct must be “sexual” to trigger an investigation.
d. Damages
At trial, plaintiff described the emotional distress she suffered and continues to
suffer as a result of the abuse.
Dr. Lilli Friedland, a board certified psychologist, elaborated on plaintiff’s
testimony, explaining that although plaintiff had already received some counseling for the
abuse, she will need further therapy throughout her life. Dr. Friedland testified, “because
she’s so not used to thinking about what’s going on inside of her. She’s usually thinking
9
of focusing on the other person. So she will need a great deal of psychological help right
now. And almost definitely, without any reasonable doubt, she will need it at different
periods of time in her life when she encounters other developmental stages and other
situations.”
Dr. Friedland further explained that aspects of plaintiff’s personality, her
obedience to authority, and her loneliness (caused by changing schools and being teased)
made her vulnerable to this type of abuse. Dr. Friedland testified that, “she was brought
up to believe in authority and this man—and power. She adored him. He really listened
to her.” “[Hermida] made all the overtures. He was the one who initiated the personal
discussions and the personal examples and telling of secrets. He made all the plans.”
The detective that interviewed plaintiff and conducted the investigation into the abuse
testified that he would refer to Hermida’s conduct—his behavior as a school teacher, as
somebody in a position of trust, who befriends a child in order to then sexually abuse the
child—as grooming.
Dr. Stan Katz, the clinical and forensic psychologist hired by the District,
presented a contrary view of plaintiff’s damages, testifying that “there was no indication
in any of the data that . . . she . . . experienced a life-threatening event.” Dr. Katz testified
that he believed the relationship made plaintiff more mature. “It always matures
someone because you have to go through experiences which most teenagers don’t have to
deal with. So you learn by experience.” When asked his opinion as to plaintiff’s future
prognosis, he stated that plaintiff is doing “quite well” and likely will not need future
counseling as a result of the abuse.
e. Verdict
After a two week trial, the jury returned a verdict in the District’s favor. As to the
first question, which asked “[w]as defendant . . . District negligent?” the jury answered
“No” by a vote of ten to two.
Judgment was entered for the District, and this appeal timely followed.
10
CONTENTIONS ON APPEAL
a. Instructions Concerning Negligent Supervision
Plaintiff contends the trial court erred in modifying CACI No. 426 concerning
negligent hiring, supervision or retention of an employee to require plaintiff to prove that
Hermida had a “dangerous propensity to sexually abuse minors.” Respondent contends
that plaintiff is barred from raising this claim by the doctrine of invited error. We see no
bar to plaintiff’s claim. We agree the trial court erred prejudicially. Plaintiff was only
required to prove that Hermida had the potential to sexually abuse minors, not a
“propensity” to do so.
i. Instruction
The standard version of CACI No. 426 provides:
“[Name of plaintiff] claims that [he/she] was harmed by [name of employee] and
that [name of employer defendant] is responsible for that harm because [name of
employer defendant] negligently [hired/ supervised/ [or] retained] [name of employee].
To establish this claim, [name of plaintiff] must prove all of the following:
1) That [name of employee] was [unfit/ [or] incompetent] to perform the work for
which [he/she] was hired;
2) That [name of employer defendant] knew or should have known that [name of
employee] was [unfit/ [or] incompetent] and that this [unfitness/ [or] incompetence]
created a particular risk to others;
3) That [name of employee]’s [unfitness/ [or] incompetence] harmed [name of
plaintiff]; and
4) That [name of employer defendant]’s negligence in [hiring/ supervising/ [or]
retaining] [name of employee] was a substantial factor in causing [name of plaintiff]'s
harm.
The trial court replaced the phrase “unfit/[or] incompetent” with the phrase
“dangerous propensity to sexually abuse minors[.]”
11
ii. Invited error
The invited error doctrine bars a party from challenging an instruction to which
the party stated it had no objection. (Electronic Equipment Express, Inc. v. Donald H.
Seiler & Co. (1981) 122 Cal. App. 3d 834, 856.) That did not occur here.
The District sought two changes to CACI No. 426, arguing that the “knew or
should have known” requirement in the instruction should be changed to the higher
standard of “knew or had reason to know” and the general term “unfit” should be
changed to require prior acts of sexual misconduct. The arguments were not unrelated.
As the court recognized, in situations requiring a “had reason to know standard,” the prior
conduct giving rise to a “reason to know” had to be unambiguous. In this context, that
would mean prior acts of sexual misconduct. The court found, however, that the
appropriate standard in this case was “should have known.” The District submitted on
that ruling, but continued to argue vigorously for “unfit” to be replaced by “had
committed prior acts of sexual misconduct.”
Plaintiff argued repeatedly that the “unfit” language of the instruction was clear
and did not need to be modified. She argued, “It’s my position that 426 adequately
discussed the law. There is nothing confusing about it that would confuse the jury or
mislead the jury. . . . ” “CACI is very well thought out. CACI is—the Judicial
Council. . . . And this is what they came up with based on the interpretation of the law as
it stands, Your Honor.” “It’s up to the jury to define fit or unfit, Your Honor.” Although
plaintiff occasionally stated during argument about this jury instruction her belief that
Hermida had exhibited a “propensity” for sexual misconduct, at no point did she concede
that the law required her to prove that Hermida exhibited such conduct as an element of
her claim. To the contrary, she specifically argued that the law did not require her “to
show the propensity to have sexual misconduct. It doesn’t say the propensity to do any
specific conduct.”
The court found that applicable law was contained in C.A. v. William S. Hart
Union High School District (2012) 53 Cal. 4th 861 (C.A.) and In re Veronica G. (2007)
12
157 Cal. App. 4th 179 and that the District “knew or should have known about this
particular risk is what the law mandates.” At the end of argument, the court ruled that it
was going to change CACI No. 426 and was going to “try to track the language of C.A.
[v.] William Hart as close as I can in crafting my own version of 426. . . . ” The court
stated that it would give the modified version of the instruction to the parties later.
When the parties were later given the court’s modified version of CACI No. 426,
that instruction in fact used the “dangerous propensity” language taken from C.A.
Plaintiff did not object. Since plaintiff had already argued that such language was not
required, her acquiescence to the instruction does not support a finding of waiver,
forfeiture or invited error. (Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 212-
213 [“‘“An attorney who submits to the authority of an erroneous, adverse ruling after
making appropriate objections or motions, does not waive the error in the ruling by
proceeding in accordance therewith and endeavoring to make the best of a bad situation
for which he was not responsible”’”].)
iii. Modification
“When a party challenges a particular jury instruction as being incorrect or
incomplete, ‘we evaluate the instructions given as a whole, not in isolation.’ (People v.
Rundle (2008) 43 Cal. 4th 76, 149.) ‘“ For ambiguous instructions, the test is whether
there is a reasonable likelihood that the jury misunderstood and misapplied the
instruction.”’ (Ibid.) The propriety of jury instructions is a question of law that we
review de novo.” (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal. App. 4th
72, 82.)
Here, the harm that plaintiff suffered was sexual abuse. There must be a nexus in
the instruction between the harm suffered by plaintiff and the unfitness of Hermida as a
teacher. The trial court correctly ruled that plaintiff was not required to show that
Hermida was unfit to be a teacher because he had committed prior acts of sexual
13
misconduct. The trial court undercut its ruling, however, when it defined Hermida’s
unfitness as a “dangerous propensity to sexually abuse minors.”
There is a reasonable probability that the jury misunderstood the propensity phrase
to require prior acts of sexual misconduct. A common meaning of propensity is “a
disposition to behave in a certain way.” (American Heritage Dictionary (2011)
[as of Sept. 8, 2015].) “If you have a propensity for
something, then it’s something that comes naturally to you or something you just do a
lot.” (Vocabulary.com (2015) [as of Sept. 8, 2015], italics
added.) Thus, the use of the phrase “propensity to sexually abuse minors” strongly
indicates that sexually abusing minors was something that Hermida did with some
frequency. This is more than the law required plaintiff to prove.2 Plaintiff was only
required to prove that Hermida had the potential for sexually abusing minors.
The District contends the use of the phrase “propensity” was not misleading when
considered with several other instructions which correctly state general principles of tort
law, such as “[f]oreseeability is determined in light of all the circumstances and does not
require prior identical acts or injuries,” and a school district may be liable if “it knew or
should have known that the teacher posed a foreseeable risk of harm to students.” The
2
In C.A., upon which the trial court relied for the propensity language, the plaintiff
alleged that the school counselor who abused him had engaged in unlawful sexually-
related conduct with minors in the past and the school district knew or should have
known or were put on notice of the counselor’s past sexual abuse of minors and her
“propensity and disposition” to engage in such abuse. (C.A., supra, 53 Cal.4th at p. 866.)
The issue before the Supreme Court in C.A. was whether the plaintiff’s theory of liability
for negligent hiring, retention and supervision was a legally viable one. The court
concluded that “a public school district may be vicariously liable under section 815.2 for
the negligence of administrators or supervisors in hiring, supervising and retaining a
school employee who sexually harasses and abuses a student. Whether plaintiff in this
case can prove the District’s administrative or supervisory personnel were actually
negligent in this respect is not a question we address in this appeal from dismissal on the
sustaining of a demurrer.” (Id. at p. 879.) Thus, C.A. cannot be read as requiring “proof
of a dangerous propensity to sexually abuse minors” in a negligent supervision cause of
action.
14
District contends that these instructions would have told the jury that plaintiff was not
required to prove prior acts of sexual misconduct by Hermida.
The jury in this case was given a number of very general instructions on
foreseeability under tort law, which was followed by one quite specific instruction which
was titled with the cause of action in this case, used the names of the parties in this case,
and referred to the specific wrongful conduct alleged in this case. This specific
instruction does not use the term “foreseeability.” There is no reason to believe that the
jury somehow “mentally corrected” the more specific instruction to conform with the
general tort principles set forth in earlier instructions.
iv. Prejudice
As we have explained, it is reasonably likely that the jury understood the
propensity language of the modified CACI No. 426 to require proof of prior acts of
sexual misconduct by Hermida. This likelihood was increased by the District’s argument
suggesting that prior sexual misconduct was key to foreseeing Hermida’s sexual abuse of
plaintiff. The District argued that “[T]hey don’t have any acts of sexual misconduct,
clear acts of sexual misconduct by . . . Hermida that would give [the District] notice.”
The District also argued, “And the question you have to answer is, should [school]
administrators or teachers have foreseen sexual misconduct by . . . Hermida? Okay.
Well, what had he done by way of sexual misconduct before?” The District further
argued, “Hermida had no past history of sexual misconduct. . . . ”
The modified version of CACI No. 426, as argued by the District and as likely
misunderstood by the jury, thus set up an insurmountable hurdle for plaintiff. It required
her to prove that the District knew that Hermida had a dangerous propensity to sexually
abuse minors. It is difficult to see how such a propensity could be shown except by past
acts of sexual abuse of a minor.
Since plaintiff was Hermida’s first known victim, she could not prove that he had
committed past acts of sexual abuse and so could not have shown that he had a dangerous
15
propensity to sexually abuse minors. Indeed, no first victim of a predatory teacher
would have a remedy, since he or she could not prove propensity. This is not the law.
A miscarriage of justice occurs if, based on the entire record, including the
evidence, it is reasonably probable the jury would have reached a result more favorable to
plaintiff absent the error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal. 4th 780, 800.)
Probability here “does not mean more likely than not, but merely a reasonable chance,
more than an abstract possibility.’ [Citation.]” (Ibid.)
Plaintiff was required to show only that Hermida had the potential to sexually
abuse minors. There were several actions by Hermida which could have shown such a
potential. Hermida’s acts of openly hugging female students could be found to have
shown such potential, as could his rearrangement of the furniture in his classroom to
create a hidden alcove, his lying on his back on one of the tables in his classroom while
two female students were sitting at the table, and his discussion of his personal life,
including drinking and problems with his girlfriend with his female students. There is a
reasonable chance that plaintiff would have obtained a more favorable result in the
absence of the erroneous instruction. Reversal is required.
b. Plaintiff’s Sexual History
Plaintiff contends the trial court erred prejudicially in admitting evidence of her
prior sexual history. We agree.
i. Law concerning the discovery and use of a plaintiff’s sexual history
In 1985, the Legislature added sections 783 and 1106 to the Evidence Code and
section 2036.1 to the Code of Civil Procedure. (See Knoettgen v. Superior Court (1990)
224 Cal. App. 3d 11, 13.)
Code of Civil Procedure section 2017.220, subdivision (a), which derives from
section 2036.1, expressly provides, “any party seeking discovery concerning the
plaintiff’s sexual conduct with individuals other than the alleged perpetrator shall
16
establish specific facts showing that there is good cause for that discovery, and that the
matter sought to be discovered is relevant to the subject matter of the action and
reasonably calculated to lead to the discovery of admissible evidence.”
Evidence Code section 1106, subdivision (a) expressly provides, “opinion
evidence, reputation evidence, and evidence of specific instances of plaintiff’s sexual
conduct . . . is not admissible by the defendant . . . to prove . . . the absence of injury to
the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of
consortium.”
“The purpose of this legislation, though probably self-evident, was eloquently
stated by the Legislature: ‘The discovery of sexual aspects of complainant's lives . . . has
the clear potential to discourage complaints and to annoy and harass litigants. That
annoyance and discomfort, as a result of defendant[s’] . . . inquiries, is unnecessary and
deplorable.’” (Knoettgen v. Superior Court, supra, 224 Cal.App.3d at p. 13.) The
Legislature concluded, “‘the use of evidence of a complainant’s sexual behavior is more
often harassing and intimidating than genuinely probative, and the potential for prejudice
outweighs whatever probative value that evidence may have. Absent extraordinary
circumstances, inquiry into those areas should not be permitted, either in discovery or at
trial.’ (Stats. 1985, ch. 1328, § 1, pp. 4654-4655.)” (Id. at p. 14.)
ii. Trial court’s rulings
In February 2013, the Honorable Suzanne Bruguera held a hearing on the
District’s motions to compel the mental examination of plaintiff and to permit
questioning of plaintiff about her sexual history. The motion to permit questioning about
her sexual history was denied.
In October 2013, plaintiff made a motion to preclude evidence of her sexual
history apart from Hermida. The motion was heard by the Honorable Lawrence Cho,
who presided at the trial of this matter. At the hearing on the motion, plaintiff’s counsel
explained that although there were some interrogatory responses suggesting that the
17
abuse might affect plaintiff’s future romantic relationships, “we basically waived that
when we were proceeding on in discovery and trying to exclude any inquiry into her
sexual history.” Referring to the earlier hearing on discovery of plaintiff’s sexual history,
the District’s attorney stated, “we were precluded from obtaining that type of information
from plaintiff, not from anybody else.”
The District’s counsel argued that plaintiff’s sexual history was relevant even if
she did not seek damages related to future romantic relationships. They contended that
“when she’s claiming emotion[al] distress from having been involved in a sexual
relationship with a teacher but she’s also having sexual relations with other people during
this same time period, then that’s relevant to her contentions that she’s going to suffer
emotional distress.” The District added, “you can’t separate that.” The District pointed
to the deposition testimony of their expert, Dr. Katz, who was asked, “So you’re saying
that victims of sexual abuse who had prior sexual experiences are less traumatized than
those who haven’t?” Dr. Katz responded, “They certainly can be.”
The trial court denied plaintiff’s motion in limine, ruling “I find that given the
proffer on the defense that there will be expert testimony indicating that the extent of
damages, if any, can be dependent upon other sexual relations that the plaintiff was
having at the time is sufficient to raise—sufficient to raise a relevance to the issue of
causation, as well as the issue of extent of damages suffered as a result of this sex with
the teacher, as opposed to having sex with other individuals.”
iii. Analysis
A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of
discretion. (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal. App. 4th 1103, 1111.)
However, a trial court abuses its discretion as a matter of law if its applies the wrong
legal standard to the issue before it. (Doe 2 v. Superior Court (2005) 132 Cal. App. 4th
1504, 1517.) That was the case here.
18
Here, the trial court did not weigh the prejudicial potential of the evidence against
its probative value and did not make a finding of exceptional circumstances which would
permit the use of plaintiff’s sexual history or behavior at trial. Thus, the trial court
abused its discretion.
The District and the trial court relied on the mere fact that plaintiff was claiming
emotional distress damages to justify the use of the evidence. This is not sufficient, and
moreover is clearly barred by the express language of Evidence Code section 1106,
subdivision (a), prohibiting the use of prior sexual history evidence to prove the absence
of injury to the plaintiff, with the exception of loss of consortium. As our Supreme Court
has explained, “We cannot agree that the mere initiation of a sexual harassment suit, even
with the rather extreme mental and emotional damage plaintiff claims to have suffered,
functions to waive all her privacy interests, exposing her persona to the unfettered mental
probing of defendants’ expert.” (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 841.)
The District and the court also relied on the deposition testimony of the District’s
expert to justify the use of the evidence. This is not sufficient. Dr. Katz testified at his
deposition that “I don’t know what [her] sexual history is. I don’t know if she was ever
raped before. I don’t know if she had sex consensually, non-consensually. I don’t know
how often she has sex with how many different boys. And for me to understand the
sexual trauma, I would like to know that.” He also testified, “Here is what I’m saying,
without knowing her past sexual history, I don’t know how traumatized she was by the
sexual acts that [were] perpetrated on [her in this case.]”
Dr. Katz’s deposition testimony is remarkably similar to an expert declaration
found insufficient by our colleagues in Division Two in Knoettgen v. Superior Court,
supra, 224 Cal. App. 3d 11. That declaration stated in pertinent part, “In order to conduct
a meaningful evaluation of Plaintiff’s alleged emotional damages, it is necessary to
inquire into sexual assaults that Plaintiff may have suffered in the past. Such incidents
are directly relevant to the issues of whether there is an alternative source of any
emotional distress suffered by Plaintiff and the extent of damages Plaintiff allegedly has
19
suffered from the acts alleged in her Complaint.” (Id. at p. 14.) The court concluded that
this showing did not differentiate the case before it from any other sexual harassment
case. (Ibid.) We reach the same conclusion in this case.
Dr. Katz simply testified that past sexual history is relevant to understanding the
extent of plaintiff’s sexual trauma. This is true in every case. It does not show
exceptional circumstances which would allow the introduction of plaintiff’s sexual
history.
iv. Waiver
The District claims that even if the trial court erred in ruling that evidence of
plaintiff’s sexuality was admissible, plaintiff reasserted her claims of damage to her
sexuality at the beginning of trial, thus opening the door to evidence on that topic.
“‘[A] motion in limine to exclude evidence is a sufficient manifestation of
objection to protect the record on appeal when it satisfied the basic requirements of
Evidence Code section 353, i. e.: (1) a specific legal ground for exclusion is advanced
and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable
body of evidence; and (3) the motion is made at a time before or during trial when the
trial judge can determine the evidentiary question in its appropriate context.’ (People v.
Morris (1991) 53 Cal. 3d 152, 190, disapproved on another ground by People v.
Stansbury (1995) 9 Cal. 4th 824, 830, fn. 1.)” (Boston v. Penny Lane Centers, Inc.
(2009) 170 Cal. App. 4th 936, 950.) Even if plaintiff addressed damages to her sexuality
at trial, she was permitted to do so without waiving her objections to that evidence under
the “defensive acts” doctrine which permits a party to introduce evidence she has
previously unsuccessfully objected to, in an attempt to preemptively address the
evidence. (People v. Scott (1978) 21 Cal. 3d 284, 291.)
20
v. Prejudice
“There can be no doubt that allowing a jury to hear evidence of unsavory conduct
can be reversible error due to its prejudicial effect.” (People v. Paniagua (2012) 209
Cal. App. 4th 499, 519-520; Winfred D. v. Michelin North America, Inc. (2008) 165
Cal. App. 4th 1011, 1026, 1029.)
The Legislature clearly recognized that a plaintiff’s sexual history had significant
potential for prejudice. (Knoettgen v. Superior Court, supra, 224 Cal.App.3d at pp. 13-
14.) There is ample evidence that the prejudicial potential was realized. The jury asked a
significant number of questions about plaintiff’s sexual history which indicated an
improper and irrelevant interest in the topic.
Jurors sent a note during Dr. Friedland’s testimony stating, “there appears to be an
inconsistency. Andy was an 8th grade boy, left middle school in fall of 2010. She was
two years younger, so she should be in 7th grade in the fall of 2010. The attorney said
she was in 8th grade.” The juror then clarified, “I just wanted to know what grade she
was in while she was having—what grade was that?” When Dr. Friedland suggested that
plaintiff was in 8th grade in 2010, the juror replied, “It doesn’t make sense. If he’s two
years older and was going to 9th grade, she would have been in 7th. The attorney said
8th, so I’m just confused.”
While plaintiff was testifying, a juror sent a note asking, “Is [plaintiff] planning to
go to back to . . . Hermida after turning 18; and . . . how old was she when she first
starting having sex?”
A juror also sent a note posing a series of questions to be asked of plaintiff: “Did
you have a boyfriend and you started texting back and forth [with Hermida]?” “Did you
have a boyfriend at any point during the relationship with . . . Hermida?” “Did you tell
your friend when he first . . . sen[t] you a friend request through myspace?” “Have you
had sex with other boys before having sex with . . . Hermida?” This line of questioning
by the jurors was not admissible.
21
The District then exacerbated the prejudice by using plaintiff’s relationships with
boys to argue that she was sophisticated and could, in effect, voluntarily consent to sex
with Hermida. They argued during closing: “And no matter what you say about her
mind being overcome, from some reason, by Hermida, Hermida wasn’t in her classroom.
That was a decision she made. And what did [her friend] Andromeda tell you about
plaintiff coming back from one of those episodes? Coming back into the classroom after
having met with Hermida and had some sexual acts occur. Me and Hermida just had a
quickie. A quickie. [¶] And at first she tried to act like she didn’t know what it was, and
then she acknowledged what it was. Now, a quickie, is that a language or thought
process of a naïve person, a person that doesn’t know what’s going on, a quickie?”
Although evidence of plaintiff’s sexual history was purportedly offered only on
the issue of damages, her history was discussed throughout the trial. This evidence and
argument about it is highly prejudicial and warrants reversal even considered in isolation.
That prejudice is only heightened when the presentation of plaintiff’s sexual history is
contrasted with the District’s refrain that there was no evidence that Hermida had
committed prior acts of sexual misconduct, which had the unfortunate effect of making
plaintiff look in some ways more sophisticated than her abuser.
There is a reasonable chance that the jury would have reached a more favorable
result for plaintiff in the absence of evidence of her sexual history. Reversal is required.
c. Comparative Fault and Consent
Plaintiff contends the trial court erred in instructing the jury that the District
“claims that [plaintiff’s] own wrongful conduct contributed to her harm” and if the
District proves this claim, plaintiff’s “damages are reduced by your determination of the
percentage of [plaintiff’s] responsibility.” She further contends that the trial court erred
in permitting the District to argue that her wrongful conduct was consenting to the sex.
22
i. Comparative negligence or fault
We agree that the trial court erred in instructing the jury on comparative fault for
two reasons: (1) there was no evidence of any wrongful conduct by plaintiff, and
(2) comparative fault has no application in a case involving the sexual abuse of a minor
student by an adult teacher in a position of authority in a public school setting.
Hermida’s sexual abuse of plaintiff began while she was under the protection of
the District, which stands in loco parentis to all of its students, including plaintiff.
Criminal law prohibited the sexual acts committed by Hermida in order to protect minors
like plaintiff who, due to a lack of mature judgment, might be manipulated into sexual
activity with a predatory adult. The District nevertheless sought in the trial of this matter
to deprive plaintiff of the protections afforded her by criminal and civil law; the District
convinced the trial court that minors can consent to sex with adults and so the law
imposing responsibility on minors in other contexts should be expanded to the school
setting to impose responsibility on minor students for their own sexual abuse by
teachers.3 On appeal, the District continues to maintain that a minor student who is the
victim of sexual abuse by a teacher bears responsibility for preventing that abuse. The
District was wrong in the trial court and is wrong now. There is no case or statutory
authority or persuasive reasoning supporting the notion that students sexually victimized
by their teachers can be contributorily responsible for the harm they suffer.
3
In agreeing to give the instructions requested by the District, the trial court relied
primarily on Sagadin v. Ripper (1985) 175 Cal. App. 3d 1141 (Sagadin), which involves
liability for the illegal serving of alcohol to minors by social hosts in a private home. The
trial court was mistaken in so relying. “[S]chool grounds provide a different setting than
an adult’s home. And there are differing public policy concerns related to the
responsibilities of school districts that provide mandatory education as compared to
adults who invite children into their home on a voluntary basis.” (M.W. v. Panama
Buena Vista Union School Dist. (2003) 110 Cal. App. 4th 508, 524.) Further, in Sagadin,
“the claimed negligence of the [social hosts] was predicated solely on the violation of . . .
a penal statute.” (Sagadin, supra, 175 Cal.App.3d at p. 1163.) In this case, the claimed
negligence of the District is predicated on the special relationship between plaintiff, a
pupil in the District, and defendant, a school district.
23
The District’s theory of comparative fault was based on its claim that plaintiff
engaged in wrongful conduct by “consenting” to sex with Hermida, and so could be held
responsible for the harm she suffered from that abuse.
As the California Supreme Court has made clear in its discussion of minors as the
victims of sex crimes, the minor is wronged by the adult’s conduct even if she “consents”
to the sexual relationship. (People v. Tobias (2001) 25 Cal. 4th 327 (Tobias).) As the
court stated, “‘It has long been settled that where a penal statute expressly outlaws
conduct against minors, a minor who is a victim of the proscribed conduct is not an
accomplice. . . . ’” The court explained, “The rationale underlying this rule is that
prosecution of the minor for cooperating with the defendant would be inconsistent with
the purpose of the law, which is to protect the minor. . . . [T]he minor, even if a willing
participant in the defendant’s conduct, is a victim. . . . ” (Id. at p. 334, italics added.)
“[T]he law. . . puts the burden on the adult to avoid the sexual relationship.” (Id. at
p. 337, italics added.)
This burden falls with particular force on a school district. It is well settled that “a
school district and its employees have a special relationship with the district’s pupils, a
relationship arising from the mandatory character of school attendance and the
comprehensive control over students exercised by school personnel, ‘analogous in many
ways to the relationship between parents and their children.’ [Citations.]” (C.A., supra,
53 Cal.4th at pp. 869-870.) Because of this special relationship, a school district has
obligations to its pupils “beyond what each person generally owes others under Civil
Code section 1714.”4 (Id. at p. 870.)
As relevant here, a school district has “a duty of supervision that include[s] an
obligation to offer [a student] some protection against her own lack of mature judgment.”
4
Civil Code section 1714, subdivision (a) provides in pertinent part, “Everyone is
responsible, not only for the result of his or her willful acts, but also for an injury
occasioned to another by his or her want of ordinary care or skill in the management of
his or her property or person, except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself.”
24
(Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1017 (Kahn).) Such
supervision is necessary because of the “commonly known tendency of students to
engage in . . . impulsive behavior which exposes them . . . to the risk of serious physical
harm.” (Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal. 3d 741, 748.) Thus,
plaintiff’s lack of mature judgment in “cooperating” with her abuser was a source of the
District’s responsibility to her, not a partial excuse from that responsibility. Plaintiff
cannot be held partially responsible for the sexual abuse committed on her by Hermida,
an adult teacher.
ii. Consent
The trial court instructed the jury that there is no age of consent and that a minor is
capable of giving legal consent to sexual intercourse. This instruction was incorrect
under the circumstances of this case, which involve the sexual abuse of a minor by an
adult in a position of authority.
Hermida pled no contest to committing a lewd or lascivious act on child aged 14
or 15 in violation of section 288, subdivision (c)(1). As the standard jury instructions for
this crime show, it is not a defense that the child may have consented to the act.
(CALCRIM No. 1112; CALJIC No. 10.41; CALJIC No. 10.42.5)5 It was also undisputed
at trial that Hermida had sexual intercourse with plaintiff, which violated section 261.5.
Consent is also not a defense to that offense. Thus, Hermida is a criminal, even if
plaintiff consented to his sexual acts.
At the same time, plaintiff is the victim of a crime, even if she consented to
Hermida’s acts. As we discuss above, the California Supreme Court has made clear in its
discussion of minors as the victims of sex crimes that the minor is wronged by the adult’s
5
CALJIC No. 10.41 applies to violations of section 288, subdivision (a) and
provides that consent is not a defense. The use note to CALJIC No. 10.42.5 provides that
instructions and case law concerning section 288, subdivision (a) applies to violations of
section 288, subdivision (c) as well.
25
conduct even if she “consents” to the sexual relationship. (Tobias, supra, 25 Cal. 4th
327.)
The victim of a crime does not bear any responsibility for the harm she suffers
from the crime. Thus, a minor’s purported consent to a crime is simply not relevant in a
tort action against a school district for damages arising from the sexual abuse of a minor
by a teacher. Specifically, in this case, plaintiff’s purported consent to Hermida’s crimes
is not in any way relevant to the issue of whether the District negligently supervised
Hermida, or to whether she suffered damages as a result of that supervision.
Despite this clear lack of relevance of consent, the trial court instructed the jury
that “There is no ‘age of consent’ with regard to sexual relations involving a minor. A
minor is capable of giving legal consent to sexual intercourse unless said minor has such
a high degree of immaturity that the minor could not meaningfully agree to engage in the
sexual conduct in question.” The court said, “I believe it is a correct statement of law, as
this was taken directly from the Donaldson case.” The court was referring to Donaldson
v. Department of Real Estate (2005) 134 Cal. App. 4th 948 (Donaldson).6 Although
Donaldson is a civil case, the Donaldson court’s discussion of “consent” is taken from
the criminal law. However, the Donaldson court simply missed the bigger picture
concerning consent in criminal law, as did the trial court in this case.
Generally, consent is a very limited concept in sex crimes against a minor. The
court in Donaldson relied on the discussion of consent in Tobias, supra, 25 Cal. 4th 327,
which involved the very narrow topic of consent in the crime of incest in which one
participant is a minor. Incest is a unique crime, in that both participants can be criminally
prosecuted if they consent to the act, and the statute, as written, does not make a clear
6
The issue before the court in Donaldson was the narrow one of whether a violation
of section 261.5 was a sex crime involving “a non-consenting participant” within the
meaning of a statute authorizing the revocation of a real estate license. The court found
that since absence of consent was not an element of a section 261.5 offense, a finding that
a licensee violated section 261.5 did not prove that the licensee had had sex with a non-
consenting participant.
26
distinction between adult participants and participants who are minors aged 14 or older.
(§ 285.) Thus, the Tobias court’s discussion of consent is not readily applicable to other
sex crimes.
At the same time that the Donaldson court relied on the consent discussion in
Tobias, it overlooked that opinion’s general discussion of the role of minors as victims in
sex crimes. This more general discussion is applicable to sex crimes other than incest.
As we have discussed above, the opinion in Tobias shows that even if a minor consents to
sexual activity with an adult, he or she is still the victim of the crime. Thus, the trial
court erred in instructing the jury on consent.7
iii. Prejudice
Although the issue of comparative fault was purportedly offered only on the issue
of damages, the idea that plaintiff engaged in wrongful conduct was discussed throughout
the trial. The idea that plaintiff engaged in wrongful conduct by “consenting” to sexual
intercourse wrongly portrayed her in a negative light and was highly prejudicial. There is
a reasonable chance that the jury would have reached a more favorable result for plaintiff
in the absence of evidence that she engaged in wrongful conduct, particularly wrongful
conduct in “consenting” to sexual intercourse with her teacher. Reversal is required.
d. Superseding Cause Instruction
Plaintiff contends the trial court erred by instructing the jury pursuant to CACI
No. 433 that the District was “not responsible for [plaintiff’s] harm if [the] District
7
Although there may have been some confusion about the applicability of the
criminal law concept of “consent” to civil cases at the time of the trial in this matter, the
Legislature has since added section 1708.5.5 to the Civil Code to clarify that “consent” is
not a defense in civil law actions for sexual battery involving a minor victim and an adult
who is in a position of authority over the minor, including teachers. The Legislature has
also amended Evidence Code section 1106 to provide that “evidence of the plaintiff
minor’s sexual conduct with the defendant adult [shall not be] admissible to prove
consent by the plaintiff or the absence of injury to the plaintiff.” (Stats. 2015, ch. 128.)
27
proves both of the following: [¶] 1. That the criminal conduct of . . . Hermida happened
after the conduct of [the] District; and [¶] 2. That [the] District did not know and could
not reasonably foreseen that another person would be likely to take advantage of the
situation created by [the] District’s conduct to commit this type of act.” We agree.
“It is well established that when a defendant’s negligence is based upon his or her
having exposed the plaintiff to an unreasonable risk of harm from the actions of others,
the occurrence of the type of conduct against which the defendant had a duty to protect
the plaintiff cannot properly constitute a superseding cause that completely relieves the
defendant of any responsibility for the plaintiff’s injuries.” (Lugtu v. California Highway
Patrol (2001) 26 Cal. 4th 703, 725; accord Kahn, supra, 31 Cal.4th at p. 1017.)
There was no dispute that the District’s Code of Conduct was designed in part to
protect students from sexual abuse by teachers. As we discuss throughout this opinion,
sex by an adult with a minor is always a crime. Thus, the fact that Hermida committed a
sex crime is not a superseding cause.
e. Discretionary Immunity Instruction
Plaintiff contends the trial court erred in instructing the jury that “Decisions by a
school principal to impose discipline on a teacher require the exercise of judgment and
choice, and accordingly are discretionary acts for which defendant . . . is immune from
liability.” Plaintiff has not cited any objection in the trial court and did not offer any
legal or factual argument in her opening brief to support her claim. Accordingly, she has
waived this claim on appeal. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal. App. 4th
659, 685.)
We note that in her reply brief, plaintiff contends that the instruction is erroneous
because it might have caused the jury to mistakenly believe that a school principal’s
decision to investigate claims of potential misconduct is discretionary although plaintiff
claims such investigation was mandatory under the District policy. Although we do not
28
consider this argument on appeal (Reichardt v. Hoffman (1997) 52 Cal. App. 4th 754,
764), plaintiff is free to make this argument on remand.
DISPOSITION
The judgment is reversed and matter is remanded for a new trial. Plaintiff, S.M.,
shall recover costs on appeal.
CERTIFIED FOR PUBLICATION
KIRSCHNER, J.
I concur:
KRIEGLER, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
29
S.M. v. Los Angeles Unified School District
B253983
TURNER, P.J., Concurring
I concur in the decision to reverse the judgment. I respectfully disagree though
that there was properly preserved prejudicial instructional error in connection with CACI
No. 426. The tort of negligent supervision involves a special application of negligence
rules. (Rest.2d Agency § 213, com. a; see Schovanec v. Archdiocese of Oklahoma City
(Okla. 2008) 188 P.3d 158, 169, fn. 12.) In terms of negligent retention, there must be
knowledge of the particular risk or hazard that causes injury. (Doe v. Capital Cities
(1996) 50 Cal. App. 4th 1038, 1054 [“Liability is based upon the facts that the employer
knew or should have known that hiring the employee created a particular risk or hazard
and that particular harm materializes.”]; Evan F. v. Hughson United Methodist Church
(1992) 8 Cal. App. 4th 828, 836-837 [the cornerstone of the religious conference’s liability
of negligent hiring was “the risk that [the molester] will act in a certain way (i.e., molest a
child). . . .”]; see Rest.2d, supra, § 213, com. d [“[T]here is liability only to the extent that
the harm is caused by the quality of the employee which the employer had reason to
suppose would be likely to cause harm.”]; see Chin et al., Cal. Practice Guide:
Employment Litigation (Rutter Group 2014) ¶ 5:832, p. 5(I)-86.) In Diaz v. Carmarco
(2011) 51 Cal. 4th 1148, 1157, our Supreme Court analyzed a negligent retention claim in
the context of an accident prone truck driver. In doing so, our Supreme Court defined the
relevant negligent retention claim as follows: “Awareness, constructive or actual, that a
person is unfit or incompetent to drive underlies a claim that an employer was negligent
in hiring or retaining that person as a driver. (See Judicial Council of Cal. Civ. Jury
Instns. (2010) CACI No. 426.)” (Diaz v. Carcamo, supra, 51 Cal.4th at p. 1157.) Thus,
defendant was entitled to an instruction focusing the jurors’ attention on the relevant
knowledge element—the risk Elkis Hermidia would sexually abuse a student.
Plaintiff argues that CACI No. 426 should have been given without modifying it to
refer to defendant’s knowledge of Mr. Hermidia’s propensity or potential to abuse a
child. This contention as no merit. For example, there was evidence of Mr. Hermidia’s
unprofessionalism, laying on his back on his desk texting. The jurors could reasonably
have concluded that level of unprofessionalism should have evinced some response from
Mr. Hermidia’s colleagues and his supervisors; instead of institutional silence. On the
other hand, the jurors could have deduced such conduct in the presence of female
students was evidence of a propensity to engage in sexual misconduct when coupled with
other evidence. The instruction selected by the trial court directed the jury at the critical
issue—whether the conduct of which defendant was aware of should have been triggered
appropriate correction action.
Plaintiff never asserted in the trial court any modification should be made to CACI
No. 426. This is not a case where there was a complete failure to instruct on a cause of
action. The position plaintiff took, that modification to CACI No. 426 was unwarranted,
is without merit. Thus, any issue concerning using the phrase “potential” to sexually
abuse minors rather than the “dangerous propensity” verbiage has been forfeited.
(Agarwal v. Johnson (1979) 25 Cal. 3d 932, 951; Scofield v. Critical Air Medicine (1996)
45 Cal. App. 4th 990, 1011.) And even if the language “dangerous propensity” to sexually
abuse minors should have been replaced with the “potential” adjective, there is no
reasonable probability of a different result. (Cassim v. Allstate Co. (2004) 33 Cal. 4th
780, 800; Cal. Const., art. VI, § 13.) However, I join in my colleagues’ well-stated
discussion of the other errors which do, for the reasons stated, warrant reversal of the
judgment.
TURNER, P. J.
2