Government Liability Update

Amendment to Bane Act Exempting It from Statutory Immunities Is Not Retroactive

In Wiley v. Kern High School District, ordered partially published on December 20, 2024, the Fifth District Court of Appeal affirmed a demurrer to a claim under Civil Code section 52.1, the Bane Act.  The plaintiff alleged that she engaged in a verbal altercation with various students, staff members, and a school district police officer when she stopped by a district high school to pick up school yearbooks for her children.  She submitted a written complaint about the incident to the high school. The police officer wrote an incident report recommending various charges against the plaintiff.  The plaintiff alleged that the report contained no evidence that could reasonably be construed as constituting probable cause against her, and "cast" her "in an extremely unfavorable light."  A citation was issued against the plaintiff.  A criminal complaint issued against her charging her with misdemeanors.  During the criminal proceedings against the plaintiff, the plaintiff asked the prosecutor why he was not dropping the charges.  The prosecutor allegedly replied to the effect that the plaintiff had angered the district employees involved by threatening a lawsuit against them.  On January 3, 2022, after a mistrial, the court dismissed the misdemeanor charges in the interests of justice.  The plaintiff brought suit against multiple defendants, including the officer who wrote the report.  The trial court sustained the demurrer as to various claims and defendants.  In particular, demurrer was sustained as to all claims against the officer without leave to amend, and he was dismissed.  The plaintiff appealed.

The appellate court affirmed the demurrer as to all causes of action, albeit it reversed for leave to amend as to one cause of action.  The published portion of the decision addressed the plaintiff's Bane Act cause of action.  The plaintiff alleged that the officer who wrote the report was liable for malicious prosecution and abuse of process under the Bane Act.  By alleging the report cast her in an "unfavorable light," the plaintiff failed to plead the elements of malicious prosecution.  She does not allege the officer arrested her without probable cause, submitted false information, omitted material information, knowingly caused erroneous charges to be filed against her, or influenced prosecutors to prosecute her without probable cause.  She does not allege the officer threatened or intimidated her.  She did not allege facts connecting the report to the complaint she made to the school.  Although the officer did not need to obtain the information for his report by threats, intimidation, or coercion to qualify under the Bane Act, the report itself was not inherently coercive, and the plaintiff failed to allege any facts showing that the officer's alleged acts rose to the level of coercion required by the Bane Act.  The Bane Act's language limiting actions based on speech alone counsels that a mere unfavorable portrait of the plaintiff is likely insufficient.  The court further held the officer immune from liability under Government Code section 821.6, immunity to malicious prosecution claims.  In 2022, subdivision (n) was added to section 821.6, removing this immunity for police officers for Bane Act violations.  The court rejected the plaintiff's argument that the amendment applied to the events of this case.  The plaintiff attempted to analogize the amendment to statute of limitations cases, and argued that the elements of her cause of action for malicious prosecution were not completed until January 3, 2022, when her case was dismissed in the interests of justice.  She therefore argued that the amendment was retroactive.  The court disagreed.  Statutes are presumed prospective, unless the statute is procedural.  A statute is not procedural when it deprives a defendant of any defense on the merits.  Statutory immunity for public entities or employees is generally a substantive, rather than procedural, bar to tort immunity.  The removal of an absolute defense to liability is more than a procedural change.  There is no express legislative intent, or evidence of a clear legislative intent, to increase liability for past conduct regarding the 2022 amendment.  Finally, retroactive application of the penalties available under the Bane Act--actual damages, treble damages, punitive damages--would raise a serious constitutional question.

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Pollak, Vida & Barer represented the defendants on appeal in this matter.

 

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.

"Counsel Mandate" Bars Non-Attorney Parent from Representing Children's Claims Pro Se

In Grizzell v. San Elijo Elementary School, published August 7, 2024, the 9th Circuit affirmed the district court's dismissal without prejudice of a civil rights case against the defendant school and school district.  The plaintiff enrolled her children in the school under the McKinney-Vento Homeless Assistance Act.  She alleges that the children suffered racial discrimination and harassment, and were ultimately unlawfully unenrolled.  She asserted claims under the Equal Protection and Due Process clauses of the 14th Amendment, Title IV and Title VI of the Civil Rights Act of 1964, and several other federal and state educational laws.  When the plaintiff conceded that the lawsuit only concerns her children's claims, the district court dismissed the action without prejudice because the minors could proceed with their claims only through an attorney licensed to practice in the court.  The plaintiff appealed.

The 9th Circuit panel affirmed.  The "Counsel mandate" requires a non-attorney parent to be represented by counsel in bringing an action on behalf of her child.  The right to proceed pro se under 28 U.S.C. section 1654 does not create a true choice for minors who, under state law, cannot determine their own legal actions, and does not overcome the rule that a non-lawyer has no authority to appear as an attorney for others.  The panel acknowledged the important interests raised by the plaintiff's allegations, and that other circuits have allowed more flexibility in permitting a pro se parent to make a child's case the parent's own.  But the panel viewed itself bound by precedent.

School District's Recission of COVID Vaccination Policy Did Not Render Employee Challenge Moot

In Health Freedom defense Fund, Inc. v. Carvalho, published June 7, 2024, a divided panel of the 9th Circuit Court of Appeals reversed a district court order granting judgment on the pleadings.  The plaintiffs challenged  the defendant California school district's mandatory COVID-19 vaccination policy.  The district reversed course on the policy multiple times.  The district court held that under Jacobsen v. Massachusetts (1905) 197 U.S. 11, rational basis review applied to a vaccination program.  It rejected the plaintiffs' contention that the COVID-19 vaccine is not a vaccine because it allegedly does not prevent disease, but instead mitigates it and is therefore a medical treatment.  The district court relied on CDC documents the district submitted, of which it took judicial notice.  After the oral argument of the case, the defendant district rescinded its COVID-19 vaccination policy.

The majority held that the case was not moot.  The district twice rescinded the policy when facing litigation risk, including after oral argument.  The majority deemed this a tactical manipulation of the federal courts invoking the voluntary cessation exception to mootness.  The district did not carry its heavy burden of showing it would not revert to imposing a similar policy.  On the merits, accepting the allegations in the complaint as true, the Jacobsen rule for vaccination programs did not apply.  The judicially noticed documents did not contradict the complaint's allegations sufficiently to rebut them.  The majority remanded the case to the district court.  A concurring judge raised the possibility that the district had sovereign immunity to the suit.  Another concurring judge opined that the allegations in the complaint were sufficient to invoke the plaintiffs' liberty right to be free of unwanted medical treatment.  A dissenting judge opined the case was moot.

Judge's Review of Certificates and Decision to Allow Childhood Sexual Abuse Claim to Proceed Is Not Determination of Fact for Purposes of CCP Section 170.6

In San Diego Unified School District v. Superior Court (John Doe D.Y.), published May 28, 2024, the Fourth District Court of Appeal, Division 1 issued a writ of mandate directing the trial court to vacate its order denying the real party district's Code of Civil Procedure section 170.6 to the trial court judge.  Code of Civil Procedure section 340.1 requires a plaintiff who is 40 or older at the time of filing a suit for childhood sexual abuse to file a certificate of merit for each defendant, and cannot serve any defendant until the court determines based solely on the certificates that there is reasonable and meritorious cause for filing the action against the defendant.  Further, the plaintiff must name each defendant by fictitious names unless the plaintiff files a certificate of corroborative fact and the court determines, based solely on the certificate and reasonable inferences to be drawn from it, that one or more facts corroborative of one or more of the charging allegations against a defendant has been shown.  By statute, neither certificate is served on the defendant, and are reviewed in camera by the trial court.  The plaintiff filed this action, and it was assigned to a superior court judge.  The superior court entered an order on the plaintiff's ex parte application to serve and name Doe defendants under section 340.1.  The plaintiff then filed an amendment to name the defendant district in place of a Doe defendant, and served the district with the complaint.  When the district filed its first appearance, a request for an automatic extension of the time to demurrer, the district filed a Code of Civil Procedure section 170.6 peremptory challenge to the judge the same day.  The trial court denied the challenge as untimely.  The district petitioned the appellate court for relief,  on the ground that it timely filed the challenge within 15 days of its appearance.  The appellate court issued an order to show cause.  Neither the plaintiff nor the superior court responded.  The district filed a supplemental brief in lieu of reply, arguing a review of section 340.1 certificates is not a “determination of contested fact issues relating to the merits” under section 170.6 that would bar a subsequent section 170.6 challenge.

The appellate court agreed.   Courts narrowly construe what constitutes a determination of contested fact relating to the merits under section 170.6, limiting it to decisions actually on the merits of the case.  The purpose of the certificate of merit is to impose a pleading hurdle to prevent frivolous and unsubstantiated claims.  It is therefore similar to a determination of probable cause in a criminal prosecution.  The defendant ha no opportunity to oppose the certificates and raise conflicting factual contentions.  The certificate determination is therefore comparable to a demurrer or an ex parte request for a temporary restraining order, which are not deemed resolution of disputed facts under section 170.6.  This limited review therefore does not preclude a subsequent section 170.6 challenge.

 

Teacher's Numerous Absences and the Negative Impact on Students and Fellow Teachers Justified Her Dismissal

In Campbell v. Los Angeles Unified School Dist., ordered published May 22, 2024, the Second District Court of Appeal affirmed a trial court decision denying a petition for a writ of administrative mandate challenging her dismissal.  (A decision in another lawsuit between the parties was published May 21, 2024.)  The plaintiff worked as a resource specialist teacher at a school for two years.  Her role involved developing Individualized Education Programs for students with special needs.  The district dismissed the plaintiff because, among other things, she was excessively absent from school, which negatively affected students and staff.  The trial court plaintiff was absent or tardy almost 38% of her workdays for her first school year and 45% of her workdays for the following school year.  The trial court further found that the poor attendance had a negative impact on students and burdened fellow teachers.  The court found that during both years, the plaintiff was notified of the adverse effects her poor attendance had on her students, but nevertheless treated her position as a part-time job and came to work when she did not have other matters to which she gave priority.  The Commission on Professional Competence held an 11-day hearing and upheld the dismissal.  The trial court upheld that decision.  The plaintiff appealed.  She contended that the court erred in affirming her dismissal because the Commission miscited and applied the wrong statutory subdivisions at her hearing, and because the court failed to apply the correct legal standard when determining her fitness to teach.

The appellate court agreed with the trial court.  The district conceded, and the trial court recognized, that the Commission cited incorrect subdivisions of a statute in its legal conclusions.  But the Commission accurately listed, by name, the correct statutory causes for her dismissal.  This adequately apprised her of the bases for her dismissal.  The trial court relied on good case law for its decision.  The case the plaintiff argues should have been followed is distinguishable.  While that case holds that the number of absences alone is not determinative, the trial court did not uphold the dismissal solely based on the number of absences.  It pointed to the negative impact the absences had on students and fellow teachers; failure to correct her conduct despite notices of the adverse effects of her absences and tardiness; and yet continued to treat her work as a part-time job.

School District Can Be Held Liable for Injury to Student When School Bus Does Not Arrive on Time and Student Gets Ride to School

In Brinsmead v. Elk Grove Unified School District, published September 18, 2023, the Third District Court of Appeal reversed an order of dismissal entered after the trial court sustained the defendant district's demurrer.  According to the complaint, the plaintiffs' daughter was enrolled in the district's school bus program.  One morning, the daughter was present at the bus stop at the scheduled arrival time, to take the bus to school.  The bus did not arrive.  Neither the daughter nor her parents received notice of a delay in the bus service.  Forty minutes after the scheduled arrival time, the daughter got a ride to school in a friend's car.  During the ride, the car was hit head-on by another driver.  The daughter sustained fatal injuries.  The parents sued the school district for wrongful death and a survivor's action.  The district demurred to the complaint on the ground that Education Code section 44808 rendered it immune because the district had not yet begun to undertake the daughter's transportation to school.  After allowing leave to amend, the court sustained the demurrer to the amended complaint without leave to amend.

The appellate court disagreed.  Under Education Code section 44808, a district is immune from liability for the conduct or safety of pupils when not on school property.  But section 44808 provides an exception to immunity and a duty of care where the district has undertaken to provide transportation for a pupil to and from the school premises.  If the district makes that undertaking, it is liable for the pupil's safety while the pupil is or should be under the immediate and direct supervision of a district employee.  When a district accepts a student’s enrollment in a district’s school bus program to provide stable and reliable transportation to school, that acceptance constitutes a “specific undertaking” by the district within the meaning of section 44808.  The court rejected an argument that the undertaking begins only when a bus arrives.  The undertaking occurs both when the school bus arrives and transports students and also when the district accepts the responsibility of providing that transportation.  The appellate court further interpreted section 44808's phrase "should have been under  . . . supervision" to cover the time during which the bus should have arrived and provided transportation to a student.  Whether a particular student was or should have been under a district employee's direct supervision is a question of fact.  The parents therefore adequately alleged the daughter should have been under district supervision by the time she decided to find other transportation and was fatally injured.

School District Did Not Violate Confidentiality of Medical Information Act by Requiring Employee to Provide Verification of COVID-19 Vaccination Status or Undergo Weekly Testing

In Rossi v. Sequoia Union Elementary School District, published August 25, 2023, the Fifth Appellate District affirmed dismissal after demurrer was sustained in this case and in two other related appeals arising out of similar circumstances.  During the State of Emergency declared due to COVID-19, the State Public Health Officer issued an order requiring K-12 schools to verify the COVID-19 vaccination status of all school workers.  The plaintiff was providing in-person classroom assistance when the order issued.  The plaintiff repeatedly refused to disclose her vaccination status or undergo weekly testing.  After attempts to accommodate her with at-home employment, the district eventually terminated her employment.  The plaintiff sued the school district under the Confidentiality of Medical Information Act, Civil Code section 56 et seq.  She alleged causes of action for discrimination due to the plaintiff's refusal to authorize a release of her medical information (Civil Code section 56.20(b)) and for unauthorized use of her medical information, in violation of section 56.20(c).  The trial court sustained the district's demurrer without leave to amend.

The appellate court held that the section 56.20(b) claim was properly resolved by demurrer.    Section 56.20(b) provides that nothing in the section shall prohibit an employer from taking such action as is necessary in the absence of medical information due to an employee's refusal to sign an authorization permitting a health care provider to release information to others.  Where an employer demonstrates that it acted out of a legal necessity to comply with a lawful order, the exception's application can be determined as a matter of law, because it turns on interpretation of the order.  Here, there was no room for factual debate on how the district could have complied with the health order's requirements other than directing her to stay home, and terminating her when it was clear she was never going to test.  As for the section 56.20(c) cause of action, the trial court properly sustained the demurrer because the plaintiff failed to plead a prima facie case that her medical information was "disclosed."  It did not appear she could save her complaint by amendment, so the trial court properly sustained the demurrer without leave to amend.

School District Complaint Form Did Not Substantially Comply with Claim Requirements and Did Not Serve as a Claim as Presented; No Equitable Estoppel Where Claimant Obtains Counsel within Time to Seek Late-Claim Relief

In A.S. v. Palmdale School District, published August 28, 2023, the Second District Court of Appeal, Division 8 affirmed dismissal of a personal injury suit against a school on demurrer.  On March 5, 2019, an elementary school teacher allegedly grabbed the minor plaintiff's arm and twisted it, resulting in an injury.  The next day, the plaintiff's mother went to the school to file a complaint.  The receptionist told her to go to the school district.  She went to the district office.  The receptionist told the mother that the assistant superintendent had instructed her to give the mother a form entitled "Complaint Form--Employee Student Issue."  The mother asked if there were any other forms she needed to complete.  The receptionist said the assistant superintendent had only instructed her to provide that form.  The mother took the form home and completed it.  In the form, she described the incident, her son's injury, and the medical treatment.  She complained about the school's investigation, and alleged the principal was biased.  She suggested that a thorough district level, unbiased investigation be conducted, and that the teacher receive discipline.  She returned, gave the form to the assistant superintendent, and asked if there were any other documents or paperwork to complete.  He said there were none, and promised a full inquiry would be made and he would be in touch with her.  On February 25, 2020, the minor, now represented by counsel, filed suit.  He alleged that he had complied with the Government Claims Act, and attached a copy of the school complaint as an exhibit to the complaint.  The district demurred three times to the complaint, on the ground that the plaintiff did not comply with the Government Claims Act.  The first two demurrers were sustained with leave.  The third was sustained without leave, and the action was dismissed.

The appellate court ruled that the demurrer was properly sustained.  The school complaint form did not substantially comply with the claims requirement.  A document does not substantially comply with the claims requirement where it entirely omits a claim element required by Government Code section 910.  Under section 910, the claim must show the amount claimed if under $10,000; and if over $10,000 shall indicate whether the claim would be a limited civil case.  The form specified several administrative actions the plaintiff wanted the district to take, but did not state he was seeking monetary damages and made no attempt to estimate the amount of damages or state whether the claim would be a limited case.  It therefore did not substantially comply with the claim requirements.  The district did not waive noncompliance as an affirmative defense by failing to serve a Notice of Noncompliance under Government Code section 910.8.  A public entity must serve such a notice to object to a deficiency in a document that serves as a "claim as presented."  The most important element of a "claim as presented" is that it discloses the existence of a claim against the defendant that, if not satisfied, will result in litigation.  The complaint form here in no way suggested he was seeking compensation or was threatening litigation.  The court rejected the plaintiff's contention that the district was equitably estopped from asserting noncompliance because the assistant superintendent represented that the complaint form was the only form needed.  Even if those statements could have estopped the district while the claimant was unrepresented,  the law recognizes that circumstances may change and render estoppel no longer appropriate.  Here, the claimant obtained counsel and filed suit within the time to apply to the district for leave to present a late claim. The counsel was charged with knowledge of the law in California, including the Government Claims Act.  Further, the allegations of the complaint showed that the counsel was actually aware of the claim presentation requirement.  The plaintiff was charged with his attorney's knowledge of the claim presentation requirement.  He therefore could not satisfy the ignorance or reliance elements of equitable estoppel.  Although the record did not show the exact date the attorney was retained, he filed the suit within one year of the incident, showing that the claimant knew of the claim requirement within the one-year period to apply for leave to present a late claim.

While Evidence of Minor Plaintiff’s Subsequent Molestation May be Introduced into Childhood Sexual Abuse Trial, Trial Court Must Follow Statutory Procedure in Deciding What Evidence, if Any, to Allow

 

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.