In Jane S.D. Doe v. Superior Court (Mountain View High School Dist.), published July 27, 2023, the California Supreme Court reversed a trial court decision denying a pretrial motion in limine. The plaintiff sued the district to recover for sexual abuse committed by her fourth-grade teacher in 2009-2010. There was evidence she was then molested by a family friend in 2013. The plaintiff moved in limine under Evidence Code sections 352 and 1106 to bar evidence of the 2013 molestation. The district contended that the 2013 incident may be the cause of the plaintiff’s emotional harm from 2013 forward. It submitted sealed filings setting out what it knew of the 2013 molestation, and included a declaration as to the relevance of the evidence. The trial court ruled that the evidence of the 2013 molestation fell outside the scope of any shield statute. It reasoned that the statutory term “sexual conduct” in the shield statutes covers only voluntary conduct or a willingness to engage in such conduct; and that the molestation was involuntary. The court then analyzed the admission of the evidence under Evidence Code sections 780 (credibility) and 352. The court ruled that the district should be allowed to elicit information about the second molestation, in the most minimally invasive manner possible; and that under section 352, the probative value was not substantially outweighed by undue delay, prejudice, or misleading the jury. After the ruling, the plaintiffs’ counsel petitioned the appellate court for a writ of mandate. The appellate court initially granted a stay of trial that day, but denied the writ and dissolved the stay the next day. The plaintiff’s counsel petitioned the Supreme Court for review. Opening statements proceeded in the trial court. In opening statement, the plaintiff’s counsel mentioned the evidence of the 2013 molestation. The district’s counsel stated the evidence would show that the plaintiff blamed her emotional distress entirely on the employee’s molestation, but that it would introduce expert testimony diagnosing the plaintiff with PTSD from the 2013 molestation. After some witnesses testified, the Supreme Court stayed the trial, granted review, and remanded the matter back to the court of appeal. The trial court stayed the case, but told the jury that would be recalled for resumption of the trial. The appellate court ruled that the shield statutes did apply, including the requirement under section 1106 that evidence could be admitted under Evidence Code section 783 if it went to credibility. It then ruled that the trial court had in essence conducted the evidentiary hearing section 783 required. The appellate court also upheld the trial court’s section 352 analysis. It remanded the case for further trial proceedings. The Supreme Court granted a second petition for review.
The Supreme Court concluded that the evidence of the 2013 molestation might be admissible under Evidence Code sections 1106, 783, and 352. Section 1106(a) generally shields sexual harassment, sexual assault, or sexual battery plaintiffs by barring evidence of a plaintiff’s sexual conduct to prove consent by the plaintiff or absence of injury to the plaintiff. Section 1106(e) states that the statute does not make inadmissible evidence offered to attack the plaintiff’s credibility under section 783. Section 783(d) provides that the court may allow introduction of evidence regarding the plaintiff’s sexual conduct so long as the evidence is relevant pursuant to section 780 (governing witness credibility) and not inadmissible under section 352 (discretionary exclusion of relevant evidence due to undue prejudice). Sections 1106(e) and 783, the Supreme Court ruled, address overall witness credibility, not just situations where the defendant contends the plaintiff is offering false testimony. Credibility also concerns such matters as accuracy and memory. Sections 783, 780, and 352 do work together to prevent admission of evidence that is unnecessarily harassing, irrelevant, or unduly prejudicial, but do not limit admission to challenging allegedly false testimony. The Supreme Court disagreed with the appellate court’s conclusion that the trial court essentially carried out the evidentiary hearing procedure prescribed in section 783, however. The statute requires that the trial court hold a robust hearing out of the presence of the jury, at which it would allow the questioning of the plaintiff regarding the offer of proof made by the defendant. Here, the questioning would have been expected to address whether the plaintiff claimed 100 percent of her emotional distress damages is attributable to the employee molestation and none to the 2013 molestation. Further, once determining the evidence was admissible, the trial court should have made an order stating what evidence the district could introduce and the nature of the questions to be permitted. As a result, the district’s legal arguments throughout the litigation were a moving target. Finally, the trial court’s section 352 analysis should be applied to serve the intent of the shield statutes to guard against unwarranted intrusion into the victim’s private life; and focus on the prejudice suffered by complainants who may experience harassment and intimidation, all weighed against the defendant’s right to a fair adjudication and to counter a plaintiff’s evidence. The Supreme Court remanded the matter to the trial court to undertake proper proceedings under sections 1106 and 783.
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