Government Liability Update

Paramedics Did Not Owe Duty to Perform Adequate Medical Examination of Person Who Refused Treatment

In Murphy v. City of Petaluma, published November 25, 2024, the First District Court of Appeal, Division 1 affirmed summary judgment in favor of the defendant city and two of its paramedics.  The plaintiff was involved in a head-on collision.  The defendant paramedics responded to the scene.  They asked the plaintiff questions to determine her involvement in the collision and whether she was hurt or needed medical assistance.  She stated she was not hurt and did not want or need medical assistance.   The paramedics did not observe any signs of injury, any signs the plaintiff was in pain, or any signs of cognitive impairment. One of the paramedics explained to the plaintiff that it was possible she had suffered an injury of which she was unaware, that the injury could manifest later, and that the injury could be life-threatening.  He recommended that she accept transportation to a hospital where she could be examined as a precautionary measure.  The plaintiff responded she was aware of the risks, but again declined transportation to the hospital.  The paramedic advised the plaintiff of the potential signs of serious injury of which she should be aware.  After attending to the other driver, the paramedic returned to the plaintiff to ask if she had developed a headache or required medical assistance.  She again refused medical assistance, and still did not display objective signs of injury or cognitive impairment.  Before the paramedics left, one of the paramedics again obtained confirmation from the plaintiff that she did not want or need medical assistance.  Based on their observation of the plaintiff, the paramedics concluded she was alert and oriented, had capacity, and had expressly exercised her right to refuse medical treatment.  After leaving the scene, the plaintiff suffered a stroke in her sleep, due to a hypertensive crisis caused by the collision.  The plaintiff sued the city and paramedics, alleging the paramedics were grossly negligent in their medical examination, evaluation, and treatment of her, including failing to take her blood pressure and failing to transport her to a medical facility.  The trial court granted the defendants' motion for summary judgment, concluding that no medical care was initiated and that the paramedics did not take any action that created a duty to perform a full assessment of the plaintiff's medical condition.

The appellate court agreed.  The plaintiff contended the paramedics owed her a duty of care to provide medical assistance in accordance with Health and Safety Code section 1799.106 under the negligent undertaking doctrine.  Emergency rescue personnel, like other persons, have no general duty to protect others from the conduct of third parties.  The negligent undertaking rule is an exception.  Where one undertakes to aid another, the person is under a duty to exercise due care in acting, and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking.  The plaintiff contended that by virtue of the paramedics interactions with her at the scene they assumed a duty to provide her with adequate medical care.  She maintained her refusal to of medical care was irrelevant to the duty issue.  She did not claim that the paramedics were negligent in their assessment that she had the cognitive capacity to exercise her right to refuse medical assistance.  The court rejected the plaintiff's argument. As with other first responders, the scope of the duty the paramedics assumed must be measured by the particular level of service they provided.  That level of service was dictated by the plaintiff's repeated refusal of medical assistance and transport.  After she made these statements, the paramedics did not undertake a medical examination.  Therefore, they did not assume a duty to conduct such an examination meeting the applicable standard of care.  Further, there is no evidence that the paramedics' conduct increased the harm or risk of harm inflicted by the third party.  The paramedics left the plaintiff in exactly the position she occupied before they arrived.  They therefore did not have a duty to render medical assistance to the plaintiff in accordance with the standard of care.

Complaint Stated Cause of Action against District for Officer’s Use of Force Off-Duty to Retrieve Cellphone

In Juarez v. San Bernardino Unified School District, published November 25, 2024, the Fourth District Court of Appeal, Division 1 reversed the trial court’s decision sustaining demurrer to the plaintiffs’ complaint and dismissing the case.  The plaintiffs alleged that one of the plaintiffs found a cellphone on the ground, and placed it in his truck.  Later, when the plaintiffs were outside of one of the plaintiff’s homes, an officer of the defendant district tracked his cellphone to their location.  He approached the plaintiffs, carrying his firearm and with his badge clipped to his belt.  He identified himself as a police officer for the district, displayed his badge, and demanded they comply with his commands.  He then pulled his firearm, cocked it, and aimed it at the plaintiffs outside the house, while another plaintiff watched from inside the house.  He demanded they turn over the cellphone.  The plaintiff who found the cellphone retrieved the phone from his truck and attempted to hand it to the officer.  The officer ordered him to put the phone on the ground.  As the plaintiff went to do so, the officer struck the plaintiff in the face with his gun, causing the plaintiff to fall and lose consciousness.  The officer took pictures of the plaintiffs, and told them he knew who they were.  The officer later pled guilty to assault by a police officer and threatening the other plaintiffs under color of law.  He admitted he acted under color of authority as a district police officer when he detained the plaintiffs and assaulted one of them.  The plaintiffs sued the officer and the district, asserting multiple causes of action.  The complaint alleged the district was liable under Government Code section 815.2, subdivision (a) (respondeat superior liability).  The court sustained the district’s demurrer without leave to amend, finding that the plaintiffs failed to allege facts showing the officer acted in the course and scope of his employment.

The appellate court disagreed.  The scope of employment is interpreted broadly under the respondeat superior doctrine.  The employer will not be held vicariously liable for an employee’s malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes.  If the employee inflicts injury out of personal malice, not engendered by the employment, or acts out of personal malice unconnected with the employment, or if the misconduct is not an outgrowth of the employment, the employee is acting outside the scope of employment.  Here, however, the complaint alleged that as a district officer, the officer had a duty to ensure the safety and security of district property.  It alleged that the district authorized and equipped the officer to use force to seize evidence and prevent its destruction.  It cited Penal Code section 830.32 as authorizing the officer to arrest someone if he had probable cause to believe they had committed a felony.  The complaint alleged that the officer used his cellphone to perform his job, and that he sought to retrieve it to be able to perform his job.  The plaintiffs therefore asserted multiple plausible theories for how the officer’s search for the phone was connected to his employment.  A fact-finder could conclude that the officer acted within the scope of his duties in attempting to retrieve the phone.  Further, a fact-finder could reasonably infer that retrieving what the officer believed to be his stolen phone was an act necessary to his comfort, convenience, health, and welfare.  That is another standard for activities within the scope of duty.  Finally, it is reasonable to infer that an officer’s conduct in drawing a firearm, identifying himself as an officer, and demanding that others comply with his commands were all actions signaling that he sought to detain or arrest someone.  Whether he was actually doing so is for the trier of fact to determine.

The Claim-Presentation Deadline for Imprisonment Based on Alleged Public Defender Malpractice Is Six Months, Not One Year

In McCurdy v. County of Riverside, published November 21, 2024, the Fourth District Court of Appeal, Division 1 affirmed a trial court decision denying a petition for relief from the claim requirements under Government Code section 946.6.  The plaintiff was on probation.  At an October 2020 hearing, his public defender allegedly committed malpractice that resulted in the plaintiff's probation being revoked. On June 16, 2022, a court of appeal granted the plaintiff's writ of habeas corpus based on ineffective assistance of counsel in the probation revocation hearing.  The remittitur issued August 17, 2022.  On June 30, 2023, the plaintiff presented a claim for damages to the county, alleging ineffective assistance of the public defender and that he was wrongly imprisoned for 600 days as a result. He alleged the injury occurred August 17, 2022.  The county rejected the claim as not being presented within six months of the event or occurrence.  The plaintiff presented an application for leave to present late claim on July 18, 2023.  The county denied the application.  The plaintiff's petition to the court for late-claim relief asserted that the one-year deadline for claims not based on personal injury, injury to personal property, or injury to growing crops.  It further asserted that if the deadline was six months, his claim was untimely due to excusable neglect.  His attorney presented a declaration that the plaintiff was advised by three attorneys (including the declaring attorney) on three separate occasions that the one-year deadline applied; that despite best efforts, he was only able to obtain his present attorney in June 2023; and that the petitioner believed the one-year deadline applied.  The trial court found that the cause of action accrued when the court revoked the plaintiff's parole; that his late-claim application was therefore filed more than a year after accrual; and that regardless the plaintiff failed to show he was entitled to relief.

The appellate court noted, but declined to resolve, the issue of when the cause of action of a criminal defendant for attorney malpractice accrued, in light of the current language of Code of Civil Procedure section 340.6.  Even assuming the accrual date the plaintiff argued--August 17, 2022, when the remittitur on his habeas writ issued--the plaintiff presented his claim 11 months after that.  The court rejected the argument that a legal malpractice action against a public defender for alleged malpractice resulting in wrongful imprisonment is a claim in contract, since no contract is involved.  Instead, it is a tort claim for personal injury, and the six-month deadline applies.  The appellate court further ruled that the trial court did not abuse its discretion in rejecting the plaintiff's argument of excusable neglect, because the plaintiff's attorney's declaration--which lacked details on dates and other particulars--failed to meet the proof requirements, and because the plaintiff had forfeited his argument that the finding was an abuse of discretion.  Further, the weight of authority suggests that attorney negligence, particularly in the context of a public defender, is primarily a cause of action for personal injury.  At a minimum, the attorneys should have been aware that the six-month period might apply and therefore should have presented a protective claim within that period.  

City Did Not Have Actual or Constructive Notice of Ice Patch in Parking Lot, Despite Knowledge of Snowfall and Temperatures

In Maksimow v. City of South Lake Tahoe, published November 4, 2024, the Third District Court of Appeal affirmed summary judgment for the defendant city.  On the morning of March 26, 2020, the plaintiff slipped on a patch of ice, 3' x 4', in a public parking lot.  The ice was located near a car in the parking lot.  She sued the city for maintaining a dangerous condition of public property.  The city moved for summary judgment.  It presented evidence that the city received no liability claims concerning dangerous conditions in the lot, from January 2017 to the accident date.  It also presented evidence that there were no complaints or service requests for snow or ice removal from the lot in the 12 months before the fall.  The city had first become aware of the ice patch when the plaintiff presented her claim for damages.  The city presented evidence that the car near the ice had been identified for investigation as part of the city's abandoned vehicle abatement plan.  Photos of the vehicle on March 12, 2020 showed no ice or snow, and the pavement around the car appeared smooth and dry.  Photos taken by the plaintiff two to four weeks after the accident showed a small strip of snow on the passenger side of the car, and no ice or snow near the marked site of the fall.  The city presented evidence of its snow and ice removal plan.  The plaintiff presented evidence that the city issued a parking citation for the car on March 15, 2020, which cited a municipal code prohibiting obstruction of snow removal equipment.  The plaintiff presented photos from the city taken on that date, which showed the lot and car covered in several inches of fresh snow.  The parties submitted contradictory evidence from public weather agencies of the amount of snow that fell before the accident date.  The plaintiff presented a declaration from a snow expert criticizing the city's snow and ice removal.  The trial court sustained objections to both sides' agency evidence of snow fall.  It granted the summary judgment motion, finding that the plaintiff had failed to raise a genuine issue of fact on whether the city had actual or constructive notice.

The appellate court agreed.  The plaintiff failed to raise an issue on actual notice of the ice.  Evidence that the city had actual notice of substantial snowfall and the abandoned car did not establish actual notice of the ice patch, or that it would form near the abandoned car.  Evidence that employees were aware of circumstances that could conspire to create an ice patch at some indeterminate time was not enough.  The plaintiff also failed to raise an issue on constructive notice.  That the city had notice of substantial snowfall and the abandoned car by March 15 did not raise a triable issue on constructive notice of an ice patch 11 days later.  There was no evidence there was ice in the lot on March 15.  Even if snow and ice go together, both are transitory phenomena.  Average daily temperatures did not establish constructive notice of the presence of ice at any particular time.  A jury would have no way of knowing whether the accumulated snow and ice in the parking lot existed for such a period of time that the city, in the exercise of due care, could have discovered them and their dangerous character.

Stipulated Judgment Awarding Set Amount of Attorney Fees but Permitting Fees for Enforcement Allowed Plaintiffs to Seek Award of Fees for Enforcement

In Robles v. City of Ontario, published November 6, 2024, the Fourth District Court of Appeal, Division 3 reversed a trial court order denying the plaintiffs their attorney fees for enforcing a stipulated judgment.  The plaintiffs brought a lawsuit under the Voting Rights Act of 16965 (52 U.S.C section 10301(c)), the California Voting Rights Act (Elec. Code section 14027) and 42 U.S.C. section 1983 alleging the defendant city violated the voting rights acts by failing to conduct district, rather than at-large, elections for city council members.  The parties settled the lawsuit with a stipulated judgment.  A paragraph of the stipulation provided that the city would pay “$300,000 in full satisfaction of attorneys’ fees and litigation expenses in this Action consistent with Elections Code section 14030 . . . . The City accepts plaintiffs’ attorneys’ statement for this claim and representation that it is based on actual time and expenses incurred.” Another paragraph provided that, “except as otherwise expressly provided in this Stipulation, each party shall bear its own costs, expenses, and attorneys fees arising out of or relating to the Action.”  Another paragraph stated that the plaintiffs released the defendants from any attorneys' fees " except for rights to enforce this Stipulation, or as provided herein.”  Later, the plaintiffs brought a motion to enforce the stipulated judgment, alleging the city was not complying with it.  The trial court found that the city had not complied with the terms of the settlement.  The court questioned whether the stipulated judgment was entirely consistent with the law, but eventually the defendants conceded that issue.  The court ruled the substantive issues resolved.  The plaintiffs moved for attorney fees for enforcing the judgment.  The trial court ruled that the stipulation did not provide for fees beyond those already paid.  The court further opined that the motion was not necessary, because the city had been doing everything it could and the plaintiffs were pushing because the matter was not moving quick enough.

The appellate court ruled that the trial court erred in interpreting the stipulated judgment's fee provisions.  The $300,000 satisfaction of attorney fees in the stipulation includes language that the fees had been "incurred."  That indicates fees incurred in the past.  The stipulation also carved out fees "to enforce this stipulation."  That is what plaintiffs sought, and under the stipulated judgment they had a legal right to seek those fees.  The court remanded the matter to the trial court to determine whether the plaintiffs qualified as prevailing parties, and if so the amount of fees to be awarded.  In determining prevailing party status, the appellate court further ruled, whether plaintiffs' counsel was "pushing" or whether defendants were doing "everything they can" is not relevant.

Police Agency Acted within Its Discretion in Terminating Officer For Refusing to Comply with Vaccine Mandate

In Bedard v. City of Los Angeles, published October 31, 2024, the Second District Court of Appeal, Division 3 affirmed a trial court decision denying in part and granting in part a petition for administrative mandate.  In 2021, the defendant city passed an ordinance that required that all city employees be vaccinated against COVID-19 or request an exemption by a specified date.  Employees with medical conditions/restrictions or sincerely-held religious beliefs would qualify for exemption.  An exempt employee was subject to weekly testing during work hours at no cost.  Employees could not opt out of getting vaccinated without a specified exemption.  In an agreement with the union to which the plaintiff belonged, the city extended the compliance deadline; that between the original deadline and the new deadline, the employee would pay for interim testing, which would not occur during work hours; and that an employee terminated for noncompliance could seek reemployment subject to the vaccination requirements, or could resign or retire and be eligible for rehire after the vaccination order was lifted.  The plaintiff never submitted documentation showing she had been vaccinated or had applied for an exemption and would be tested.  On November 5, 2021, she was given a notice that if she did not meet all of the requirements, including showing proof of being fully vaccinated by the due date of December 18, 2021, she would be placed off-duty and served with written notice of separation.  She refused to sign the notice.  On November 7, 2021, the plaintiff sent an e-mail to her superior stating she would not be vaccinated.  She did not mention any religious or medical reason.  On November 16, 2021, the agency served the plaintiff with a complaint and relief from duty.  She was temporarily relieved of duty on November 17, 2021, pending a Board of Rights hearing.  The Board of Rights, after a hearing, found that the plaintiff failed to comply with the ordinance by refusing to be vaccinated, not seeking an exemption, and refusing to sign the notice.  The Board further concluded the plaintiff had not been given sufficient time to respond to the charges, in violation of Skelly, and awarded her back pay form the date of her discipline to the time the discipline was validated.  The chief of police stated he would not comply with the back pay order, finding that the Board did not have jurisdiction to award back pay.   The plaintiff petitioned for administrative mandate.  The trial court made findings of fact affirming the plaintiff's dismissal, but granting the petition to the extent the plaintiff sought back pay.

The appellate court ruled that substantial evidence supported the trial court's findings.  It further ruled that the Board did not abuse its discretion by terminating the plaintiff for failing to comply with the vaccination policy.  The vaccination requirement's objective was to protect the city's workforce and the public from a dangerous illness during a global pandemic.  The plaintiff's refusal to vaccinate placed her, her coworkers, and the public with whom she interacted while on duty at a significant risk of harm.  The severity of her conduct warranted the severity of the discipline.  The court further rejected the plaintiff's argument that the Skelly violation the Board and trial court found required reinstatement rather than back pay as a remedy.  The plaintiff did not cite any law to support her contention that reinstatement was an available remedy for the due process violation.  Further, although the plaintiff contended she would have been able to avoid termination if she had the full 30 days to respond to the charges, she offered no credible explanation of how she could avoid termination since she refused to vaccinate and did not fall under an exemption.

Because Cannabis is Illegal under Federal Law, Conditional Use Permit for Cultivation Cannot Be Granted over Servient Tenement Owner's Objection

In JCCrandell, LLC v. County of Santa Barbara, published October 29, 2024, the Second District Court of Appeal, Division 6 reversed a trial court decision denying a petition for administrative mandate.  A company applied to the respondent county for a conditional use permit to cultivate cannabis.  The holder of the land on which cultivation would take place consented to the cultivation.  The site is zoned for agriculture.  The only access to the parcel is an easement owned by the petitioner.  The petitioner objected to issuance of the CUP.  The county issued the CUP over the objection.  The petitioner sought a writ of administrative mandate on grounds including that the use of the easement for cannabis activities is prohibited by federal law.  The trial court denied the petition.  It ruled the county's decision did not involve a vested interest, and so was subject to substantial evidence review; and that substantial evidence supported the decision.

The appellate court ruled that the trial court applied the wrong standard of review.  The petitioner's right to exclude an unauthorized person from its property is a fundamental vested right.  Therefore, the independent judgment standard of review is the proper standard.  Under that standard, the county erred, because cannabis is illegal.  Under federal law, cannabis is illegal in every state and territory of the United States.  Under the Supremacy Clause of the US Constitution, federal laws  are the supreme law of the land.  Civil Code section 1550.5, subdivision (b) provides commercial activity relating to medicinal or adult-use cannabis is the lawful object of a contract, not contrary to law, and not contrary to public policy.  The court ruled that the subdivision defies the Supremacy Clause.   "No matter how much California voters and the Legislature might try," the court ruled, "cannabis cultivation and transportation are illegal in California as long as it remains illegal under federal law."  It cannot be used to force a landowner to allow its property to be used for cannabis cultivation.

Because Suit against Individual Defendants for Relief only Entity Can Provide Does Not Serve Public Interest, Public Interest Exemption from Anti-SLAPP Does Not Apply

In Howard Jarvis Taxpayers Association v. Powell, published October 11, 2024, the Fourth District Court of Appeal, Division 2 reversed an award of fees under the Anti-SLAPP statutes and reversed denial of a special motion to strike under Anti-SLAPP.  The plaintiff sued a water district and three of its board members, alleging aquifer replenishment charge assessments violated the law.  The petition and complaint included causes of action against the board members for writ of mandate, conversion, civil conspiracy, and declaratory relief.  All of the defendants demurred, and the individual defendants filed an anti-SLAPP motion.  The trial court denied the motion under Code of Civil Procedure section 425.17's special interest exemption.  The plaintiff was awarded fees under Code of Civil Procedure section 425.16 for an anti-SLAPP motion that was frivolous or solely intended to cause delay.

The appellate court ruled that the trial court erred in applying the public interest exemption, because the plaintiff sued the individual members of an official government body for relief only the government body can provide.  The writ of mandate cause of action sought a writ to direct the defendants to stop collecting charges, vacate resolutions imposing the charges, and returning all amounts collected as unlawful charges.  The conversion cause of action sought a return of those amounts.  All of these are acts only the water district can perform.  There is a distinction between action taken by a government body and the expressive conduct of individual representatives.  Including the individual defendants was gratuitous.  It did not serve the public interest.  It could only serve to expose the individuals to potential costs of having to provide for their own defense as well as the threat of personal liability.  That risk is enough to have a chilling effect, especially against public officials who often serve for little or no compensation.  Without the exemption, the elements of an anti-SLAPP special motion to strike are met:  the officials' acts were protected activity, and there was no probability of success on the merits of the claims.  The civil conspiracy cause of action failed against the board members because the board members were immune from liability under Government Code section 820.2.  The declaratory relief action fails against the individual defendants because it seeks a declaration that does not implicate the individual defendants' rights and duties.

District Court Lacks Inherent Authority to Impose Presumption Instruction as Sanction for Inadvertent Loss of Electronically-Stored Information

 

In Gregory v. State of Montana, published September 27, 2024, the 9th Circuit Court of Appeals reversed a judgment against the defendant probation officer and state.  There was an altercation between the plaintiff and the officer in the probation office parking lot that ended with the plaintiff’s arrest.  The incident was captured on an external surveillance camera that monitored the parking lot and that was operated by the probation office.Four days after the incident, the plaintiff’s criminal defense attorney contacted the department of corrections to request the parking lot footage.  The person who attempted to provide the footage did not realize that the surveillance footage would be automatically deleted in 17 days.  His various attempts to capture the footage ran into technical difficulties.  He took a cellphone video of the footage and provided that, but it was too poor to make out what it depicted.  The original footage was eventually deleted.  The plaintiff sued the probation officer under 42 U.S.C. Section 1983 for use of excessive force and a state law claim for assault and battery, and sued the state for negligent infliction of emotional distress.  The plaintiff brought a motion for sanctions against the state based on the loss of the parking lot footage.  The court granted the motion in part.  It rejected the plaintiff’s claim for a default judgment, and instead, invoking its inherent authority, the court instructed the jury that the probation officer used unreasonable force in the seizure of the plaintiff; and submit to the jury the issues of causation, damages, and punitive damages.  The cellphone video was played to the jury, but instructed the jury that because the state had failed to preserve the video, the jury was permitted to infer that the lost footage would have been favorable to the plaintiff.  The court instructed the jury that it had been established as a matter of law that the probation officer used excessive force against the plaintiff in violation of the 4th Amendment.  The jury awarded the plaintiff $75,000 in damages, and plaintiff obtained attorney fees.

 

The 9th Circuit ruled that the district court had erred in giving the instruction.  Although district courts have inherent authority to fashion their own sanctions for conduct that abuses the judicial process, that authority can be limited by statute and rule.  FRCP 37(e) has prescribed sanctions for loss of electronically-stored information due to failure to take reasonable steps to preserve it.  The court may order measures no greater than necessary to cure the prejudice.  Only upon finding that the party acted with intent to deprive another party of the information may the district court instruct the jury that it may or must presume the information was unfavorable to the party, dismiss the action, or enter a default judgment.  The sanction here fell within the category of sanctions that may be entered only for intentional conduct.  The rule precludes a district court from resorting to inherent authority to evade its strictures.  The case was remanded for a new trial.

Divided Appellate Court Affirms Judgment Apportioning 100% Fault to Entity That Failed to Prevent Molestation and 0 to Molester

In A.H. v. Tamalpais Union High School Dist., published September 9, 2024, the First District Court of Appeal, Division 2 affirmed a judgment against the district entered after jury trial.  The plaintiff was molested by his school tennis coach.  Before the molestation occurred, the school principal received a report that the coach had touched a student's genitals while measuring body fat.  After investigation, the principal wrote the coach a letter of warning in which he stated he would create a protocol for body fat measurement.  The principal did not place the letter in the coach's personnel file, did not create the protocol, and did not tell other P.E. teachers or supervisors about the complaint.  Before plaintiff's molestation, the coach improperly touched multiple other students during body fat measurements and massages.  After the plaintiff graduated, the principal received a second complaint about the coach involving a body fat test.  In closing argument, the plaintiff asked the jury to apportion 90% fault to the district and 10% to the coach.  The district's counsel asked the jury to apportion 75-90% fault to the coach.  The jury awarded $10 million in noneconomic damages, and apportioned 100% responsibility to the district and 0% to the coach.  The district did not criticize the verdict regarding apportionment of fault after the jury returned it.  The district did not move for new trial.  The district appealed, arguing that the trial court failed to properly instruct the jury and that the fault apportionment showed the error was prejudicial.  It also argued that the trial court abused its discretion in admitting evidence of the molestations that were not reported to the district, the complaint after the plaintiff graduated, and of the coach's conviction 16 years after the plaintiff graduated.

The court rejected the claims of error.  The district complained that the trial court did not give its requested instructions that the district could not be held vicariously liable for the molestation, and could be held liable only for supervisors' negligence in hiring, supervision, and retention.  The appellate court ruled that the instructions given adequately communicated these concepts to the jury.  The district argued that the trial court should have given the district's proposed special instruction based on language in C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 noting that ordinarily lie with the individual who intentionally abused or harassed the students, and that the fact should be reflected in any allocation of comparative fault.  The court agreed with the trial court that the language did not create an actual standard, but was instead a comment by the Supreme Court regarding what happens at times.  CACI No. 406, which was given, correctly instructs the jury on apportionment.  Instructing the jury with the proposed language would have confused the jury.  Because the district failed to show instructional error, the majority declined to reach the district's argument that the "legally impossible" verdict apportioning no fault to the molester showed prejudicial error.  The court noted that the district did not separately claim insufficiency of the evidence as to the jury's apportionment finding.  The court also rejected the evidentiary arguments, finding the trial court did not abuse its discretion in deeming the unreported molestations relevant to the pervasiveness of the coach's molestation and the negligence of the supervisors in failing to detect or prevent it, the subsequent molestation as relevant to lack of reasonable supervision following the earlier complaint, and the later conviction relevant to damages because the plaintiff testified at the criminal trial.

A dissenting justice opined that despite the district's failure to raise insufficiency of the evidence to attack the fault apportionment, the court should have addressed the issue sua sponte and reversed the apportionment as improper as a matter of law.  The justice urged the California Supreme Court to grant review of the decision.