A Special Application of Evidence Code § 352

Doe v. Superior Court, No. S272166 (Cal. Jul. 27, 2023)

Evidence Code § 1106(a) generally prohibits the admission of evidence of the plaintiff’s sexual conduct to prove consent or absence of injury to the plaintiff in a sexual harassment, sexual assault or sexual battery case. But § 1106(e) says that it does not render inadmissible evidence used to attack the credibility of the plaintiff under § 783. And § 783 says that, after following a specified procedure, the court can admit evidence of the plaintiff’s sexual conduct if it is relevant under § 780—the general rule regarding witness credibility—and not rendered inadmissible under the probative-value-versus-prejudice balancing test in § 352. 

The facts in this case are pretty awful. Plaintiff claims she was molested by her fourth grade teacher. To rebut causation on her emotional distress damages, the School intended to offer evidence that Plaintiff was also molested by a “family friend” several years later, and this subsequent act was the cause of some or all of her injuries and damages. Plaintiff moved in limine to keep the evidence out under §§ 1106 and 352. The trial court ultimately found the evidence admissible because it believed that § 1106—which it repeatedly misidentified by its criminal analogue, § 1103—applied only to voluntary sexual conduct.

Plaintiff took an immediate writ. The Court of Appeal initially stayed the case, but soon thereafter summarily denied the writ and dissolved the stay. The parties proceeded to opening statements, which mentioned the later incident. The Supreme Court, however, quickly granted review, issued a stay of its own, and transferred the case back to the Court of Appeal. The Court of Appeal, in a published opinion, found that the trial court erred in finding that § 1106 didn’t apply to involuntary sexual abuse. But it nonetheless found that the incident was admissible for impeachment only, based on its anticipation that Plaintiff would testify that the teacher's molestation was the sole cause of her emotional distress. It further found that the trial court had, more or less, followed the procedural requirements of § 783 and didn't abuse its discretion in failing to exclude the evidence under § 352. The Supreme Court granted review again.

Chief Justice Guerreo’s unanimous opinion for the court canvasses the somewhat ugly history regarding the admissibility of evidence of a victim’s “unchasteness” to purportedly show her consent in rape cases. It wasn't until the early '80s that California got rid of a requirement of physical resistance to establish rape and began to bar the use of victim’s sexual history in criminal rape cases to show consent. Then these limitations were expanded to civil cases in 1985.

As the Court explains, § 1106(a) prohibits the admission of the plaintiff's sexual conduct—voluntary or not—as substantive evidence to prove consent or absence of injury. But § 1106(e) essentially permits, subject to the procedures in § 783 and balancing under § 352, the use of the same evidence to attack the plaintiff’s credibility. The Court recognizes that there is some “tension” between those two points. That, according to the Court highlights the importance of the § 783 procedures and § 352 balancing.

The Court thus parts ways with the Court of Appeal’s finding that the trial court substantially complied with § 783, which requires defendant to make a sworn offer of proof, plaintiff to be questioned out of the presence of a jury regarding the validity of the offer of proof, and an order by the court specifically delineating what questions, if any, should be allowed. In particular, the Court notes that an examination of Plaintiff might show whether she plans to testify that that 100% of her emotional distress was attributable to the teacher. That would have allowed the trial court to specifically define what was admissible in advance. 

The Court further declines to affirm the Court of Appeal’s holding that the evidence was admissible under § 352. In particular, the the trial court's failure to follow the § 783 procedures resulted in an inadequate record to fairly make that determination. The Court explains, however, that in the context of sexual conduct evidence in sexual abuse cases, § 352 balancing takes on a particular significance. 

In most cases the “prejudice” to be avoided under the statute is the risk that a jury will draw unjustified conclusions from inflammatory or emotionally fraught evidence. But here, the prejudice is also to the Plaintiff, who can be made to suffer unwarranted intrusion into her private life. The balancing must account for the plaintiff’s right to privacy and freedom from harassment. Thus, as established in cases applying the analogous criminal provisions, “courts should use their discretion to sparingly and narrowly use their discretion to admit such evidence.” Accounting for the policy behind § 1006(a) requires a broader § “352 inquiry compared with the garden-variety weighing contemplated under that statute in isolation.” 

That didn’t happen here, so it will need to happen on remand. The court finally notes that “if the previously empaneled jury remains constituted (as we were informed at oral argument it does*), the trial court will be expected to proceed as appropriate in that regard.”

Court of Appeal reversed.

*From all indications from dates in the opinion, it looks like about two years have passed since the opening statements discussed in the opinion. That's a long break for a jury.

Christynne, I am not your lawyer...

Wood v. Superior Court, No. D076325 (D4d1 Mar. 13, 2020)

Plaintiff, a transgender woman, lodged a FEHA complaint against her gym with the DFEH. DFEH decided to bring suit. Plaintiff intervened. In discovery, Plaintiff claimed attorney-client privilege over some of her communications with the DFEH’s lawyers. The trial court overruled the privilege. Plaintiff took a writ, which the Court of Appeal denies. 

The DFEH’s lawyers represent DFEH, not Plaintiff, a fact of which Plaintiff was apparently aware. Plaintiff might well have sought legal advice from the DFEH counsel. But that’s not enough to bring the communications within the privilege. By statute, a communication is subject to the attorney-client privilege only if it is “made in the course of an attorney-client relationship.” Evidence Code § 352. If there’s no reason to believe that an attorney client relationship existed between Plaintiff and the lawyers, there’s no privilege from the getgo.

Writ denied.

Can't Turn Back from the Batson Path

Unzueta v. Akopyan, No. B284305 (D2d7, Nov. 18, 2019)

In this med-mal case Plaintiff alleges that an anesthesiologist caused paralysis in her leg by mis-administering an epidural during childbirth. Plaintiff’s appeal raises our procedural issues: a jury selection issue, an issue regarding expert designation, an evidence issue, and a claim of misconduct during closing argument.

1.

The Baston challenge*—an objection to racial discrimination in the exercise of peremptory strikes of juror—has applied to civil cases for nearly thirty years. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). But compared to the enormous volume of litigation over Batson challenges in criminal cases, civil Batsons are pretty rare. Maybe prosecutors are just more racist, but I kind of doubt it. More likely is that civil litigators just aren’t particularly attuned to the issue. Plus, there’s no civil habeas.

This case illustrates that. Doctor’s lawyer exercised six of her seven strikes against Latinx jurors. Plaintiff’s lawyers, however, didn’t raise it. The trial judge—who has been around for a long time and has some criminal experience—flagged the Batson issue. During selection of alternates the following day, the judge found that the first step of the Batson analysis—a prima facie of racial discrimination in the exercise of peremptories—was met. The second step generally requires the striking lawyer to offer a valid, non-discriminatory reason for the strike.

But the trial judge didn’t require Doctor’s lawyer to meet the second step for each juror, because it was “yesterday’s news.” Because Plaintiff failed to raise a Batson issue during voir dire the trial court declined to revisit it. After a defense verdict—the jury found that the standard of care had been breached, but no causation—Plaintiff tried to re-raise the issue in a new trial motion, which was denied. Plaintiff appealed.

The Court of Appeal starts off by explaining the three-step Batson analysis. First, the challenger needs to make a prima facie showing of the use of an impermissible criteria like sex or race. This usually entails showing a pattern. Like in this case, six of the seven peremptories exercised by the Doctor were against Hispanic jurors.

Next, if the court finds a prima facie case, the striker needs to come up with a non-discriminatory justification. It doesn’t need to reach the level of cause. Indeed, it can be weird or idiosyncratic.  But the explanation needs to be clear and reasonably specific.

Then in the third step, the court needs to decide if the explanation is credible, and if the challenger has met her burden to show purposeful discrimination.

As a threshold issue, the Court explains that the Plaintiff didn’t forfeit her challenge by failing to object to the first four Hispanic jurors who were struck on the first day. But when the court brought it up, Plaintiff’s counsel agreed. Although not a portrait of clarity, it was clear enough from the record what strikes plaintiff was objecting to, and the suspect classification at issue. And in any event, since the issue came up before jury selection was over and a panel sworn, the purpose of the forfeiture rule was satisfied.

That being the case, the trial court erred in not moving on to step two. Moreover, in applying step two, the trial court should have made the Doctor come up with neutral reasons for all of her strikes of Hispanic jurors, including those exercised the prior day.

The Court orders a limited remand on the Batson issue only. The trial court needs to conduct steps two and three for the six struck Hispanic jurors. Only if there is a finding of purposeful discrimination does there need to be a new trial. That seems a little odd, given the passage of time. But that’s what the case law requires.

2. 

On the expert designation issue, Doctor called an expert on causation who had been designated by the Hospital, which settled prior to suit, but who was not designated by Doctor. Plaintiff objected to Doctor calling a witness she had not designated. But Plaintiff deposed the expert before the settlement. Under Code of Civil Procedure § 2034.310, any party can call an expert that has been designated by some other party, so long as the expert was deposed. So Plaintiff’s objection was correctly overruled.

3.

As to the evidence, Doctor was convicted of misdemeanor theft in 1992 and failed to report that in her medical licensing paperwork a few times until the early 2000s. (After that, the licensors asked if she had sustained any new convictions, to which she truthfully answered no.) Plaintiff tried to get that in at trial, but the trial court kept it out under Evidence Code § 352.

The Court finds that keeping out the theft itself was an easy call under § 352. It was a misdemeanor, a long time ago, so it had little bearing on Doctor’s truthfulness.

It finds the licensing misreporting to be a harder call. But it declines to reach the issue because Plaintiff can’t show prejudice. Doctor’s trial testimony was that she met the standard of care. But the jury already found adversely on that element, so if it disbelieved the doctor more it wouldn’t have mattered. Causation, on the other hand, was proven up through experts, so Doctor’s being a liar wouldn’t have helped Plaintiff’s case.

4. 

Finally, Doctor’s lawyer said some not very nice things about Plaintiff during closing. Like that she wanted the jury to take the Doctor’s purse and give it to Plaintiff and that Plaintiff wanted to be supported for the rest of her life by Doctor.

Lawyers get a pretty wide berth during closing argument. They can’t say crazy prejudicial things like making unfounded accusations of Nazism, or appeal to sympathy by claiming that a Plaintiff verdict will put the Defendant in the poorhouse or lead to the end of public services. But they are free to hit hard. 

The first statement here—in one about the purse—was made in the context of causation and wasn’t over the line. And Plaintiff didn’t object or seek a curative instruction on the second, so an appeal on it was forfeited.

*     *     *

Reversed in part and remanded for Batson steps two and three.

* One of the federal judges I clerked for was a DA  and then, for a very long time, a state court trial judge who mostly handled criminal departments. Californians being a proud people, he was of the habit of referring to the various criminal procedures exclusive by state court case names, which often left us scrambling to figure out things like, “what the hell is Hovey voir dire?” So, FWIW, the state court equivalent to a Batson challenge is called a Wheeler challenge. And, Golden State proud, the California Supreme Court case decided Wheeler eight years before U.S. Supremes decided Batson.

Bad, But Not Prejudicial

D.Z. v. LAUSD, No. B283799 (D2d4 May 14, 2019)

This is a pretty rare reversal of a jury verdict due to a trial court’s erroneous exclusion of evidence under Evidence Code § 352’s prejudice vs. probative value balancing test. That’s generally reviewed with a substantial amount of deference. But what the trial court did here was pretty bad. 

The case involves a teacher allegedly molesting a student. A key issue is whether the school was on notice that the teacher was a creep. The trial court, however, limited any evidence of other creepiness to the teacher’s physical acts. So the jury never heard, for instance, that the school knew about, but did not discipline, the teacher for his collection of inappropriate student photos or his lewd comments about a student’s breasts. That’s not ok.

Reversed.

The Pick Three Rule in Practice, Again

IIG Wireless v. Yi, No. G053393 (D4d3 Apr. 23, 2018)

This is another one of those grab bag cases where everyone raises way too many issues after a trial and everything gets affirmed. It’s some kind of partnership dispute over a cell phone retail business.

Briefly:

Pick Three...

Eng v. Brown, No. D071773 (D4d1 Mar. 22, 2018)

Appellant in this case violated a rule of thumb that applies to appealing an adverse civil judgment in California: It does not matter how many times the trial court messed up, absent extraordinary circumstances, an appellant should pick, at most, the three best issues to raise on appeal and concentrate on them. If a reversal isn’t in the cards on your top three issues, the chances that it could be on issues six or seven are fleetingly slim. Plus, when too many issues are raised, the word limits on the briefs lead to underdeveloped arguments that aren’t very convincing.

Some Evidence Questions in an Asbestos Case

Evans v. Am. Optical Corp., No. B265222 (D2d4 Nov. 22, 2016)

Evidentiary issues raised in an appeal after a defense verdict in an asbestos case. 

Don't Need a Physiscist to Know What a Fender Bender Looks Like ...

Christ v. Schwartz, No. D068579 (D4d1 Aug. 12, 2016)

Appeal from a defense verdict in a low-speed car accident case. Plaintiffs are the victim and her husband, who is suing for loss of consortium. Defendant stipulated to negligence and causation of the accident, so the upshot of the defense verdict is that the jury didn’t believe that the victim’s claimed injuries were legit or that they resulted from the accident. Plaintiffs’ contend on appeal that the trial court erred in admitting photos of the damaged cars and evidence regarding victim’s husband’s extramarital affairs.

On the photos, Plaintiffs claim that, in the absence of expert evidence about the significance of the damage, it was error to admit the photographs as evidence of whether the accident was the cause of Plaintiffs’ alleged injuries. But California law does not require an expert to lay foundation for accident scene photos, so long as the judge in his or her discretion believes that the jury can use the photos to draw conclusions within their ordinary common experience. One outlier decision of another state somewhat suggested that rule, but even in that case a later decision walked it back.

Nor did the court abuse its discretion in declining the exclude the photos under Evidence Code § 352. The photos were relevant to show that the collision was a side impact, the general force of the collision, and to impeach Husband’s testimony that the car was more messed up than the photos showed it to be. Given that relevance, it was not an abuse of discretion to let them in.

So far as the affair goes, it had happened almost a decade and a half before the trial. The trial court tentatively denied a motion in limine to keep it out as minimally relevant to loss of consortium, but reserved a decision for trial. When Defendant’s counsel asked a question on the issue, Victim did not object, but she gave an unresponsive answer addressed to other issues. But then she volunteered a bunch of detail on the issue in response to general questions about the nature of her injuries and the state of her relationship with Husband. And then her lawyer addressed the affair issue in depth on redirect.

The court finds that Plaintiffs forfeited the issue by failing to timely object. A tentatively denied motion in limine that is expressly subject to revisitation does not preserve an objection in the absence of an on the record objection at trial under Evidence Code § 353. And in any event, a party seeking loss of consortium puts the state of his relationship into issue. Although the affair occurred a long time ago, Victim affirmatively brought it up during her medical treatment or her alleged injuries, which suggests that it was at least potentially relevant to her.

And regardless, the record was clear that the jury didn’t believe the victim’s testimony about the source and nature of her injuries. She was thoroughly impeached on these issues at trial, including by clandestine video showing her engaged in activities that were completely inconsistent with the the injuries she claimed to have suffered. Under the circumstances, even if it was error to admit either the photos or the testimony about the infidelity, the error was harmless and insufficiently prejudicial to merit reversal.

Affirmed.

Fake Decks up in the Files?

Kim v. Toyota Motor Corp., No. B247672 (D2d7, as modified Feb. 8, 2016)

This is an automotive products liability case mostly about when plaintiffs can admit evidence of industry custom to show a defect under the risk-benefit test. (The answer, according to the court, is sometimes,  parting ways with other courts that have said always and never.) The court also, however, briefly tackles two points of procedural interest.
 

A Portrait of a Repo Man as an Imperfect Heuristic

Uspenskaya v. Meline, No. C071647 (D3 Oct. 28, 2015)

This is another med-mal case where the issue is to what degree plaintiff’s as-billed medical expenses—which have no relation to reality, much less what she actually paid—are admissible evidence of her special damages. Plaintiff here was uninsured and she gave her doctors liens on the full billed amounts. So she did, in fact, technically owe them what was billed.

This issue was kind of addressed this in the Bermudez case, decided last summer. There, the court—expounding on the Supreme Court’s 2011 Howell decision—explained that for an uninsured plaintiff, the true measure of her medical specials is the lesser of (1) what she actually paid to satisfy the doctor; and (2) a “reasonable value,” to be determined through a wide-ranging gestalt-type test. Bermudez said that the billed amount is not, on its own, sufficient to the prove reasonableness of the expense. But along with just a little other stuff—like, in particular, an expert’s opinion—it gets plaintiff to the jury.

The trial court here found plaintiff’s billed amounts to be more or less reasonable and let them go to the jury. It’s not clear that plaintiff had any other evidence. So that might not jibe with Bermudez. But these Defendants didn’t raise that issue in their appeal. Instead, their argument was that Plaintiff’s doctors sold her bills to a collection agent—likely for cents on the dollar. Defendants wanted to put that in as evidence of the “reasonable value” of plaintiff’s claim, in lieu of the billed amounts.

The trial court refused. Because the plaintiff still owed the whole amount and the collector could and would invariably seek to recover more from plaintiff than it paid her doctors for the claims, nothing suggested that the sale value of the claims—without more—represented their true “reasonable value.” Defendant needed something to bridge the gap between the sale value and the reasonable one. Otherwise, the sale value would not stand up as an acceptable proxy for reasonable value. So without an expert, the trial court correctly held that whatever evidentiary value the context-less sale numbers had, it was outweighed by the potential that the jury might give them too much credence.

In a way, the case is essentially Bermudez in reverse. The court points out—with considerable examination of the post-Howell case law—that while “reasonable value” can be measured by what the doctor would accept from the plaintiff to settle her bill, what the doctor would take from a repo man to clear bad debt off the books isn’t quite the same thing.

Affirmed.

No, No Puede!

Velasquez v. Centrome, No. B247080 (D2d8 Jan. 30, 2015) 

This is a toxic tort case. Plaintiff claims that workplace exposure to diacetyl—a chemical that smells like butterscotch or cheap California chardonnay—caused him severe lung injuries. The main issue in dispute is whether plaintiff is entitled to recover damages for the cost of a future lung transplant. 

In Limines ...

Scott v. C.R. Bard, Inc., No F066039 (D5 Nov. 19, 2014)

Defendant appeals a plaintiff verdict in a medical device defect case. Defendant moved in limine to keep out evidence regardling certain actions that the FDA took related to its product that occurred after plaintiff was injured. The trial court granted the motion. But then during opening statement, defense counsel made a big deal of the fact the FDA continued to monitor and regulate the product and had taken no action to recall it. The trial court decided that defendant had opened the door and let the post-injury FDA evidence come in. 

According to the court of appeal, the trial court didn’t abuse its discretion in doing so. Defendant’s own acts made the evidence relevant. It also was not excludable as a subsequent remedial measure under Evidence Code § 1151 because it did not concern acts by the defendant, to which the subsequent remedial measures rule is limited. Nor did § 352 merit exclusion. Plenty of context regarding the FDA’s actions was admitted, minimizing any risk of prejudice or confusion. And the court did not err by reversing its in limine ruling. In limine rulings are always provisional and subject to reconsiseration during trial.

The court also rejects a cross appeal by plaintiff on an asserted instructional error. The jury found that plaintiff’s doctor—who was not joined as a party—was forty percent at fault. But the jury wasn't actually instructed on the med-mal standard of care. Problem is, plaintiffs never requested such an instruction. Because properly instructing the jury on scope of the doctor’s duty of care was in the interest of plaintiffs, by failing to propose the instruction, plaintiffs invited the error and are estopped from asserting it on appeal.

Affirmed. 

Court Cures County's Reefer Madness

Hernandez v. County of Los Angeles, No. B243194 (D2d5 June 6, 2014)

Randy Hernandez got in a traffic accident on the 110. The CHP officer dispatched to investigate the accident While Randy and the other driver were waiting for the Highway Patrol to arrive, an L.A. County sheriff who happened to be driving on the freeway ran Randy over. Randy died. During the wrongful death case brought by Randy’s daughter, the county put in evidence that Randy used medical marijuana. But none of the county’s experts would attest that Randy’s reefer use bore any causal relationship to his getting run over. At closing, however, the county’s lawyer invited the jury to speculate that that it did. The jury verdict attributed 14 percent of the fault to Randy. The court here reverses.

There Goes My (Smoking) Gun ...

Nevarrez v. San Marino Skilled Nursing & Wellness Centre, No. B235372 (D2d4 Nov. 4, 2013)

This is an appeal after a jury trial that awarded plaintiff almost $4.4 million in damages stemming from allegations of negligence, elder abuse, and statutory violations at a nursing home. As relevant here, the court of appeal upheld challenges to two jury instructions, but reversed on two theories of liability because the trial court abused its discretion in admitting prejudicial evidence regarding prior regulatory violations at the facility. In doing so, it missed an opportunity to clarify the law of evidence.

Majority Affords No Tolling for Minority

Barker v. Garza, No. B237916 (D2d8 Aug. 22, 2013) 

In a split decision, the court of appeal holds that tolling of a statute of limitations due to the plaintiff’s minority status under Code of Civil Procedure § 352(a) does not apply to claims brought under the Drug Dealer Liability Act. In reaching that result it suggests a broad interpretive rule that the dissent finds particularly problematic.