K.M. v. Grossmont Union High School Dist. ( 2022 )

Filed 10/25/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
K.M. et al., D075957
Plaintiffs and Appellants,
(Super. Ct. Nos. 37-2015-00004806-
v. CU-PO-CTL, 37-2015-00031982-CU-
PO-CTL, 37-2016-00006248-CU-PO-
GROSSMONT UNION HIGH SCHOOL CTL)
DISTRICT,
Defendant and Respondent.
K.M. et al., D076833
Plaintiffs and Respondents,
v.
GROSSMONT UNION HIGH SCHOOL
DISTRICT,
Defendant and Appellant.
APPEALS from a judgment and postjudgment orders of the Superior
Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed.
The Zalkin Law Firm, Irwin M. Zalkin and Devin M. Storey, for
Plaintiffs and Appellants.
Artiano Shinoff, Paul V. Carelli IV, Gil Abed, and Daniel R. Shinoff, for
Defendant and Appellant.
Leone & Alberts, Louis A. Leone and Seth L. Gordon for Northern
California Regional Liability Excess Fund, Southern California Regional
Liability Excess Fund, Statewide Association of Community Colleges, and
School Association for Excess Risk as Amici Curiae on behalf of Defendant
and Appellant.
INTRODUCTION
Plaintiffs K.M., H.R., and M.L. (Plaintiffs) sued the Grossmont Union
High School District (the District) for negligence based on alleged sexual
abuse by their high school drama teacher, James Chatham.1 They also
asserted sexual harassment claims under Civil Code section 51.9, to which
the District successfully demurred. The District made Code of Civil
Procedure section 998 offers, which Plaintiffs did not accept.2 The case
proceeded to a jury trial, where the trial court excluded certain evidence and
mistakenly included Plaintiffs in an oral jury instruction regarding
apportionment of fault. Plaintiffs prevailed, and the jury assigned 60 percent
of fault to Chatham, and 40 percent to the District, with resulting damage
awards lower than the section 998 offers. The parties moved to tax each
1 Plaintiffs describe themselves by surname or as Roe plaintiffs. The
District uses their names, noting they appear in the record. We recognize
Plaintiffs’ interest in privacy, but use first and last initials for clarity. We
also abbreviate certain other names, and no disrespect is intended.
2 Further statutory references are to the Code of Civil Procedure, unless
otherwise noted.
2
other’s costs. The trial court ruled the offers were invalid, granted Plaintiffs’
motion, and denied the District’s motion in pertinent part.
Both parties appealed. The Legislature later enacted Assembly Bill
No. 218 (Assembly Bill 218 or Assem. Bill 218), which amended Code of Civil
Procedure section 340.1, to reduce procedural barriers for childhood sexual
abuse claims and to allow treble damages for a claim involving a prior cover-
up of abuse.
Plaintiffs seek a new trial. They contend they are entitled to pursue
treble damages, and that the trial court erred by sustaining the demurrers to
their sexual harassment claims, excluding certain evidence, and giving the
erroneous oral jury instruction. The District argues the trial court wrongly
determined its Code of Civil Procedure section 998 offers were invalid. We
conclude the treble damages provision in Code of Civil Procedure section
340.1 is neither retroactive, nor applicable to public school districts. We
further conclude Plaintiffs do not establish they can pursue sexual
harassment claims against the District under Civil Code section 51.9. The
parties do not establish reversible error on the other asserted grounds, either.
We affirm the judgment and postjudgment orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Events
Plaintiffs attended Granite Hills High School (“Granite Hills”) between
2009 and 2015. Chatham was the drama teacher until 2014. Georgette
Torres was the school principal until 2013, and passed away in 2016. Jake
Gaier and Michael Fowler served as assistant principals, with Fowler leaving
for another school in 2011 and returning as principal in 2013.
3
The District had a policy prohibiting sexual harassment. There was
also an online training program titled, “Making Right Choices” for staff and
students, which addressed inappropriate conduct and reporting.
Former head custodian Sonia Villa received reports from custodians
who saw Chatham with male students, and told her supervisor, Janie
Wright, and teachers about these reports. Around 2010, she attended a
meeting with Wright, Torres, and Fowler, at which Torres questioned why
Villa was talking to teachers about other teachers and (according to Villa)
required her to sign something.
In November 2011, a student’s parents emailed Gaier to report
inappropriate conduct by Chatham, including telling the students, “get up on
stage we are filming a porno” and having a male visitor who would sit on his
lap and whom he would ask to “kiss him.”3 Torres and Gaier held a meeting
with Chatham, he agreed to stop, and they placed the email and meeting
notes in his file as a written record. Gaier conducted a follow-up classroom
visit, and did not hear further complaints or rumors about Chatham.
Between 2011 and 2014, Chatham engaged in sexual contact with each
Plaintiff, which they described at trial and we address post.
In late January 2014, a female student and her mother told Granite
Hill’s resource officer, Robert Lesagonicz (Officer L.), that Chatham was
sexually touching students. Fowler, who was now principal, placed Chatham
on administrative leave. Officer L. conducted an investigation in which he
interviewed the Plaintiffs and others. El Cajon Police Department detective
David Vojtaskovic (Detective V.) also conducted an investigation. H.R.
3 Other alleged conduct included telling a boy he looked like a porn star;
telling a “boy to get behind [another boy] (sexually)”; and using terms like
“dick, pussy, ass, porn, shit” and “that’s what he/she said.”
4
organized a meeting with K.M. and others in early February 2014 to discuss
Chatham, at which they initially agreed to protect him; M.L. was not present.
The District subsequently terminated Chatham’s employment.
B. Litigation and Pretrial Proceedings
In 2015 and 2016, each Plaintiff sued the District. The operative
complaints asserted claims for negligence; negligent supervision; negligent
hiring or retention; negligent failure to warn, train, or educate students;
intentional infliction of emotional distress; and sexual harassment under
Civil Code section 51.9.4
The District demurred to the claims for sexual harassment under Civil
Code section 51.9, arguing in part that it was not subject to liability. The
trial court consolidated the cases, including for purposes of the demurrers. In
June 2016, the court sustained the demurrers without leave to amend.
In May 2018, the District made the operative Civil Code section 998
offers, which Plaintiffs did not accept.
C. Trial
The matter proceeded to a jury trial in November 2018 on Plaintiffs’
negligence claims. The jury heard extensive witness testimony, which we
now summarize.5
4 Plaintiffs cited Government Code section 815.2 and 820 as the basis for
their negligence claims. H.R. also asserted claims under the Fair
Employment and Housing Act, which the District represents were dismissed
and are not at issue here.
5 We focus here on Plaintiffs’ experiences with Chatham, the events in
2010 and 2011, and an overview of the psychiatric expert testimony. We
discuss other relevant testimony, post.
5
1. Plaintiffs’ Testimony
K.M. took Chatham’s class his sophomore year. Chatham engaged in
improper conduct with male visitors, like having them sit on his lap. K.M.
then did a summer theater program, in which Chatham did similar things,
along with a “game” that involved almost kissing the boys. He started
touching K.M., including nibbling on his ear, massaging his head and
shoulders, and touching his stomach and thigh. K.M. said “it was a constant
thing . . . so it became normal . . . .” During K.M.’s junior year, Chatham
touched K.M.’s genitals over his pants and under his underwear, and kissed
him. Chatham’s behavior continued into his senior year, and K.M. eventually
stopped interacting with him. During Officer L.’s investigation, K.M. initially
denied doing anything with Chatham, stating he was worried if people would
“think if [he] was gay” or “just a rat . . . .” He later described Chatham’s
conduct verbally for Officer L., but did not include in his written statement
that Chatham touched his genitals. He also did not tell Detective V. about
everything that happened, explaining he was “embarrassed” and “still
struggling” with why he let it happen. K.M. was now serving in the military
and married with a child.
H.R. took Chatham’s class his junior year. H.R. first saw Chatham
touch other boys, and Chatham then started touching him, including pulling
him on his lap; nibbling his ears; rubbing his shoulders, chest, and legs; and
doing the kissing game. H.R. said it felt “so normal,” the students would
mimic Chatham, and it was how they “joked around.” Chatham later touched
him under and over his underwear, and flicked his crotch. H.R. further
testified his father had been difficult, his parents made him leave the home
his senior year, and Chatham helped him get a job in community theater and
work as his unpaid teaching assistant. H.R. said he avoided Officer L.’s calls
6
and organized the meeting to help Chatham, because Chatham “meant a lot”
to him. He told Detective V. only about “minor things,” to protect Chatham.
M.L. played multiple sports in high school, and excelled at football. He
took a class with Chatham the first semester of his junior year. Chatham
became “like a . . . close friend,” started doing the kissing game, and one day
groped his leg. M.L. said he was “weirded out,” but thought it was a joke and
did not report it. Chatham touched his legs repeatedly, felt “up [his] shirt,”
and groped and wrestled with him. Two weeks before Chatham was placed
on leave, he touched M.L.’s genitals under his shorts. M.L. acknowledged he
did not disclose the genital touching until early 2018, when he told Plaintiffs’
expert psychiatrist, Dr. Calvin Colarusso. He said he did not tell Detective V.
everything because he was embarrassed and did not want this to take away
from his athletic success. After high school, M.L. attended Grossmont
Community College, where he played football for a period of time.
2. Testimony Regarding 2010 Villa Meeting
Former head custodian Sonia Villa testified about custodian reports
about Chatham, and her meeting with school administration. She said she
received multiple reports from a female custodian, including one time when
Chatham and a male student were in his office with the lights off, and told
her supervisor, Janie Wright, and a teacher. Villa said that another time,
custodian William Kennedy reported a boy was laying on Chatham’s leg on a
sofa, and Chatham was touching the boy’s hair. When Villa arrived, they
were just sitting on the sofa. She told Wright, as well as another teacher,
Joni Mah. Mah told her to tell an assistant principal, but Villa was
concerned about “jump[ing] her supervisor” and getting fired.
Villa stated she was called into a meeting with Wright, Fowler, and
Torres. According to Villa, Torres said she heard Villa was talking about
7
“Chatham doing inappropriate stuff” and asked, “why I don’t come to her,
why I came to a teacher and told her before her.” Villa stated Torres had a
“paper” ready, and said, “[F]rom now on, she don’t want to hear that I talk
about any teacher in any way, . . . and . . . I’m not allowed to say anything to
anybody, to any teacher, . . . to my custodians and that this is what I have to
sign the paper.” She signed the paper because she “need[ed] the job.” Villa
then told the custodians they now had to “give [her complaints] in writ[ing].”
Mah, Kennedy, and Fowler also testified about these events.6 Mah
confirmed Villa talked to her about Kennedy’s report, and said she talked to
Fowler. Kennedy said he saw Chatham and the boy sitting side by side, with
the lights down; Torres and Wright met with him and explained they were
doing plays; and he denied they told him not to raise concerns. Fowler
testified the Villa meeting was “about [Villa] complaining to teachers versus
management.” He denied Torres told Villa not to report inappropriate
conduct by Chatham, or gave her anything to sign (although he testified at
deposition that he did not remember any paperwork). Mah testified Villa
subsequently said she was “told she shouldn’t be talking to teachers about
other teachers” and “had to sign something,” and that Torres said she “talked
to [Villa] about gossiping about teachers with other teachers.”
3. Testimony Regarding 2011 Email
Gaier testified about the 2011 email regarding Chatham, and the
meeting and classroom visit that followed. He agreed that multiple actions
violated the sexual harassment policy. He said he immediately told Torres,
who concurred the behavior was inappropriate. During the meeting,
6 Kennedy’s deposition testimony was read for the jury, as he was
deceased by the time of trial. Torres was also deceased, and Wright did
testify, but had no recollection of the events.
8
Chatham acknowledged certain behaviors, they took him at “his word” that it
would stop, and put the documentation in his file. Gaier agreed Chatham
“was not just given a stern warning; he was given discipline.” Gaier said that
when he visited Chatham’s classroom, Chatham acted appropriately and he
did not receive further complaints.
The student whose parents sent the email testified that after Gaier’s
classroom visit, Chatham told the class someone “ratted him out for being
inappropriate.”
Steven Sonnich, the District’s associate administrator for human
resources from around 2004 to 2016 (i.e., its chief personnel officer), was
asked about the incident. He said placement of a document in Chatham’s
personnel file reflected it was a serious matter, and was “deemed serious by
employees.” He also said a visit could “send [a] message,” if it carried the
connotation that the teacher was “under a microscope,” but had
acknowledged at deposition that a single visit was not a strategy he would
have used.
4. Expert Witness Testimony
Both sides offered psychiatric experts. Dr. Calvin Colarusso testified
for Plaintiffs. He said each Plaintiff experienced child sexual abuse and post-
traumatic stress disorder (PTSD), which could result from sexual abuse. He
also determined K.M. had depression encompassed by his PTSD, H.R. had
major depressive disorder, and M.L. had cannabis use disorder.
Dr. Colarusso noted H.R. was diagnosed with depression previously and
family issues contributed to it, but said the “sexual abuse exaggerated the
depression.” For M.L., he acknowledged other factors contributed to his
trauma, but said there would be no PTSD without the sexual abuse.
9
Dr. Colarusso opined each Plaintiff needed years of therapy, now and in the
future.
The District’s psychiatric expert was Dr. Dominick Addario. He noted
it was “very rare” for PTSD to develop in a situation not involving fear, and
“most PTSD or stress-related issues from trauma take around 16 to 36
months to clear.” He opined K.M. had heightened scores for anxiety and
negativity, but would be in the same place without the experience with
Chatham. He opined H.R. had major depressive disorder, noting his history
of psychiatric and family issues, and 30 percent of his problems related to
Chatham. As for M.L., Dr. Addario testified he had adjustment disorder with
mild depressive features, and 15 percent of his issues were from Chatham.
D. Jury Instructions, Verdict, and Post-Trial Proceedings
The trial court instructed the jury that Plaintiffs contended they were
harmed by the District’s negligence, and the District denied these allegations.
In giving jury instruction 406 of the Judicial Council of California Civil Jury
Instructions (CACI 406), regarding apportionment of fault among joint
tortfeasors, the court mistakenly included “Plaintiffs.” The trial court also
told the jury there were two stipulations; that the District responded
“appropriately and reasonably” to the 2014 report on Chatham, and that
there were no prior student complaints besides the 2011 report.
In February 2019, the jury returned verdicts for Plaintiffs. The jury
awarded damages of $480,000 to H.R.; $120,000 to K.M., and $135,000 to
M.L. The jury apportioned 60 percent fault to Chatham and 40 percent fault
to the District. With this apportionment, and application of Civil Code
10
section 1431.2, the District was required to pay damages of $240,000 to H.R.,
$60,000 to K.M., and $69,000 to M.L.7
Plaintiffs unsuccessfully moved for a new trial, asserting the trial court
erroneously excluded certain evidence and included them in the CACI 406
instruction. In February 2019, the trial court entered judgment. The court
then granted Plaintiffs’ motion to tax costs, and denied the District’s motion
to tax costs in part, on the grounds that the District’s section 998 offers were
invalid.
Both parties timely appealed. We granted the application of the
Northern California Regional Liability Excess Fund, Southern California
Regional Liability Excess Fund, Statewide Association of Community
Colleges, and School Association for Excess Risk to file an amicus curiae
brief, and permitted the parties to file supplemental briefs to address the
amicus brief and recent case law regarding section 340.1 treble damages.8
DISCUSSION
I. Plaintiffs’ Appeal From Judgment
Plaintiffs argue they are entitled to seek the newly-available treble
damages, and that the trial court erred by sustaining the District’s
7 Under Civil Code section 1431.2, “[i]n any action for personal injury,
property damage, or wrongful death, based upon principles of comparative
fault, the liability of each defendant for non-economic damages shall be
several only and shall not be joint.” The damages here were awarded as
follows: H.R. ($80,000 economic, $400,000 non-economic); K.M. ($20,000
economic, $100,000 non-economic), and M.L. ($25,000 economic, $110,000
non-economic).
8 Los Angeles Unified School District v. Superior Court (2021) 64
Cal.App.5th 549 (review granted Sept. 1, 2021, S269608) (LAUSD) and X.M.
v. Superior Court (2021) 68 Cal.App.5th 1014 (review granted Dec. 1, 2021,
S271478) (X.M.).
11
demurrers to their sexual harassment claims, refusing admission of certain
evidence, and including Plaintiffs in the CACI 406 instruction to their
prejudice. We reject each argument.
A. Overview of Applicable Law
1. Statutory Interpretation
In interpreting a statute, “we look first to the words of a statute,
‘because they generally provide the most reliable indicator of legislative
intent.’ [Citation]. We give the words their usual and ordinary meaning
[citation], while construing them in light of the statute as a whole and the
statute’s purpose.” (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th
524, 530-531 (Pineda); see Monterey Peninsula Water Management Dist. v.
Pub. Utilities Com. (2016) 62 Cal.4th 693, 699 (Monterey) [“statutory
language cannot be read in isolation; like all language, statutory language
takes its meaning from the context in which it appears”].) “ ‘If there is no
ambiguity in the language, we presume the Legislature meant what it said
and the plain meaning of the statute governs.’ ” (Pineda, at p. 530.)
“If the statutory terms are ambiguous, we may examine extrinsic
sources, including the ostensible objects to be achieved and the legislative
history. [Citation.] In such circumstances, we choose the construction that
comports most closely with the Legislature’s apparent intent, endeavoring to
promote rather than defeat the statute’s general purpose, and avoiding a
construction that would lead to absurd consequences.” (Smith v. Superior
Court (2006) 39 Cal.4th 77, 83.)
2. Standard of Review
When an appeal raises a pure issue of law, including as to statutory
interpretation, we review the issue de novo. (People ex rel. Lockyer v.
Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; Pineda, supra, 51 Cal.4th at
12
p. 529.) Only prejudicial error is grounds for reversal. (Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 573-574 (Soule).) The appellant has the
burden to “show not only that the trial court erred, but also that the error
was prejudicial . . . .” (Hoffman Street, LLC v. City of West Hollywood (2009)
179 Cal.App.4th 754, 772.) We address other applicable standards of review
as necessary for particular issues.9
B. Treble Damages
Plaintiffs contend they are entitled to a new trial to seek treble
damages under Assembly Bill 218. We conclude the treble damages provision
is neither retroactive, nor applicable to public school districts.10
1. Section 340.1 and Assembly Bill 218
“Section 340.1 governs the period within which a plaintiff must bring a
tort claim based upon childhood sexual abuse.” (Quarry v. Doe I (2012) 53
Cal.4th 945, 952 (Quarry).) After its enactment in 1986, the section was
amended repeatedly to expand the statute of limitations and reduce other
barriers to claims, including with a one-year claim revival period in 2002.
9 To the extent Plaintiffs cite statutes (e.g. Civ. Code, § 1708.5.5, Gov.
Code, § 815.6), but provide no reasoned argument or separate headings, any
points regarding them are deemed forfeited. (Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784-785 [“When an appellant fails to raise a point,
or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.”]; Cal. Rules of Court, rule
8.204(a)(1)(B) [briefs must “[s]tate each point under a separate heading or
subheading summarizing the point”].) Points raised by the parties for the
first time on reply could also be deemed forfeited, but we elect to address
them as we deem appropriate. (American Drug Stores, Inc. v. Stroh (1992) 10
Cal.App.4th 1446, 1453 [“[p]oints raised for the first time in a reply brief will
ordinarily not be considered”].)
10 We need not and do not reach the District’s contention that retroactive
treble damages would violate ex post facto principles.
13
(Ibid.) Assembly Bill 218 further extended the statute of limitations,
permitted up to treble damages for abuse resulting from a cover-up, and
provided a three-year claim revival period. (Assem. Bill 218, § 1.)
Section 340.1, subdivision (a), now permits an “action for recovery of
damages suffered as a result of childhood sexual assault” to be brought
within 22 years of the age of majority (i.e., age 40) or five years of when the
plaintiff discovered the injury or should have. (§ 340.1, subd. (a).) Section
340.1, subdivisions (a)(1)-(3) describe the actions to which subdivision (a)
applies. (See § 340.1, subd. (a)(1) [person who commits act]; id., subd. (a)(2)
[person or entity with duty of care to plaintiff, where negligent act was a
legal cause of assault]; id., subd. (a)(3) [person or entity, where intentional
act was a legal cause of assault].)
Section 340.1, subdivision (b)(1), the treble damages provision, states:
“In an action described in subdivision (a), a person who is sexually assaulted
and proves it was as the result of a cover up may recover up to treble
damages against a defendant who is found to have covered up the sexual
assault of a minor, unless prohibited by another law.” Section 340.1,
subdivision (b)(2) states a “ ‘cover up’ is a concerted effort to hide evidence
relating to childhood sexual assault.”
Section 340.1, subdivisions (q) and (r) address claim revival.
Subdivision (q) states, “any claim for damages described in paragraphs (1)
through (3), inclusive, of subdivision (a) that has not been litigated to finality
and that would otherwise be barred as of January 1, 2020, because the
applicable statute of limitations, claim presentation deadline, or any other
time limit had expired, is revived, and these claims may be commenced
within three years of January 1, 2020. A plaintiff shall have the later of the
three-year time period under this subdivision or the time period under
14
subdivision (a) as amended by [Assembly Bill 218].” Subdivision (r) states,
“The changes made to the time period under subdivision (a) as amended by
[Assembly Bill 218] apply to and revive any action commenced on or after
[its] enactment . . . , and to any action filed before [its] enactment, and still
pending . . . , including any action or causes of action that would have been
barred by the laws in effect before the date of enactment.”
Assembly Bill 218 also amended Government Code section 905, which
imposes claim presentation requirements for local public entities, to
retroactively expand the exemption for section 340.1 to all such claims.
(Former Gov. Code, § 905, subd. (m) [exemption for Code Civ. Proc., § 340.1
claims “arising out of conduct occurring on or after January 1, 2009”]; Assem.
Bill 218, § 1 [amending Gov. Code, § 905, subd. (m) to eliminate “on or after
January 1, 2009,” and add subd. (p)]; Gov. Code, § 905, subd. (p) [“The
changes made to this section by the act that added this subdivision are
retroactive”].)
2. Retroactivity
Plaintiffs contend all of Assembly Bill 218’s changes, including the new
treble damages provision, apply retroactively. The District maintains this
provision is a substantive change, and as there is no clear legislative intent
for retroactive application, it applies prospectively. We conclude the treble
damages provision operates prospectively only.
a. Applicable Law
“[S]tatutes ordinarily are interpreted as operating prospectively in the
absence of a clear indication of a contrary legislative intent,” and there is a
“presumption against retroactive application . . . .” (Quarry, supra, 53
Cal.4th at p. 955.) “We apply the presumption in the absence of explicit
legislative indications of retroactivity, doing so based on the fundamental
15
fairness considerations raised by ‘ “imposing new burdens on persons after
the fact.” ’ ” (McHugh v. Protective Life Ins. Co. (2021) 12 Cal.5th 213, 229
(McHugh).)
“ ‘In deciding whether the application of a law is prospective or
retroactive, we look to function, not form. . . . Does the law “change[ ] the
legal consequences of past conduct by imposing new or different liabilities
based upon such conduct[?]” [Citation.] Does it “substantially affect[ ]
existing rights and obligations[?]” [Citation.] If so, then application to a trial
of preenactment conduct is forbidden, absent an express legislative intent to
permit such retroactive application. If not, then application to a trial of
preenactment conduct is permitted, because the application is prospective.’ ”
(Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223,
231-232 (Mervyn’s); accord, McHugh, supra, 12 Cal.5th at p. 229.)
We focus on “whether the statutory change in question significantly
alters settled expectations. . . .” (McHugh, supra, 12 Cal.5th at p. 230;
compare, e.g., Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193-
1194 (Evangelatos) [new liability under Proposition 51 applied prospectively],
with McHugh, at pp. 231-232 [new insurance grace period and notice rules
applied to existing actions; they made “relatively cabined, procedural
changes” to policy administration, and did not “unfairly ‘rewrite’ existing
policies”]; see also Mervyn’s, supra, 39 Cal.4th at pp. 231-232 [impermissible
retroactive rules included “subject[ing] tobacco sellers to tort liability for acts
performed” when “protect[ed] [by] an immunity statute,” while permissible
prospective rules included eliminating right under anti-SLAPP to “dismiss
certain public-interest lawsuits”].)
“Ambiguous statutory language will not suffice to dispel the
presumption against retroactivity; rather ‘ “a statute that is ambiguous with
16
respect to retroactive application is construed . . . to be unambiguously
prospective.” ’ ” (Quarry, supra, 53 Cal.4th at p. 955.)
b. Statutory Language
Section 340.1 contains no language that supports retroactive treble
damages. Subdivision (b), the treble damages provision, is silent as to
timing. Subdivisions (q) and (r) revive claims based on conduct prior to
enactment of Assembly Bill 218, but expressly reference only subdivision (a),
not subdivision (b). (See § 340.1, subd. (q) [three-year revival period for non-
final “claim for damages described in . . . subdivision (a)”]; id., subd. (r)
[changes to “time period under subdivision (a)” under Assembly Bill 218
apply to and revive non-final actions]; see also § 3 [“No part of [this code] is
retroactive, unless expressly so declared.”].)
Plaintiffs maintain that because section 340.1, subdivision (b) “refers
back” to section 340.1 subdivision (a), and subdivision (r) makes actions
under subdivision (a) retroactive, then subdivision (b) claims are “necessarily
encompassed” in subdivision (a) and also retroactive. They further suggest
that because Assembly Bill 218 added both subdivision (b) and the claim
revival provisions, subdivision (b)’s “reference to ‘subdivision (a)’ was made
with the understanding that [s]ubsections (q) and (r) revived any claims for
damages falling within [s]ubsection (a).” (Italics omitted.) None of this is
persuasive. If the Legislature intended section 340.1, subdivisions (q) and (r)
to apply to subdivision (b), it could have said so, instead of relying on cross-
references through subdivision (a). Regardless, Plaintiffs’ reading of these
provisions is at best a competing interpretation, which would render them
ambiguous and insufficient for retroactive application of subdivision (b).
(Quarry, supra, 53 Cal.4th at p. 955.)
17
c. Statutory Scheme
Prospective application of the treble damages provision is also
consistent with the statutory scheme. As described above, Assembly Bill 218
both reduced barriers to childhood sexual assault claims and added treble
damages for assault resulting from a cover-up. The provisions aimed at
reducing barriers either do not implicate improper retroactivity, or use
express revival or retroactivity language. (See Quarry, supra, 53 Cal.4th at
p. 956 [where “former limitations period has not expired, an enlarged
limitations period ordinarily applies and is said to apply prospectively”]; Code
Civ. Proc., § 340.1, subds. (q), (r) [express revival language]; Gov. Code, § 905,
subd. (p) [express retroactivity language].) In contrast, the new treble
damages provision imposed new and significant liability, and lacked any
retroactivity language. (§ 340.1, subd. (b).) This change altered “ ‘ “the legal
consequences of past conduct by imposing new . . . liabilities,” ’ ” and thus
“ ‘application to a trial of preenactment conduct is forbidden.’ ” (Mervyn’s,
supra, 39 Cal.4th at pp. 231-232; accord, McHugh, supra, 12 Cal.5th at
p. 229.)
Plaintiffs’ arguments lack merit. First, they contend section 340.1,
subdivision (a), “does not define covered actions by the specific type of
damages sought, e.g., compensatory, treble, etc.” This argument ignores both
general tort principles, and the structure of section 340.1. Prior to Assembly
Bill 218, subdivision (a) already applied to an “action for recovery of
damages,” and tort actions presumptively allow damages “for the purpose of
compensating . . . .” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 146-
147 (Kizer).) Assembly Bill 218 added treble damages in a different
subdivision—subdivision (b)—and, as explained above, the claims revival
provisions referenced only subdivision (a).
18
Second, Plaintiffs contend an “analysis of whether [section 340.1,
subdivision] (b) is retroactive is misplaced,” as it “governs the remedy for an
existing cause of action” and “does not create a new cause of action.” Citing
older authority, they state a statute is “procedural” when “it merely provides
a new remedy,” and “neither creates a new cause of action nor deprives
defendant of any defense on the merits.” (See, e.g., Kuykendall v. State Bd. of
Equalization (1994) 22 Cal.App.4th 1194, 1211, fn. 20.) Under current law, it
is “ ‘not significant whether the statute is labeled substantive or procedural
in nature.’ ” (Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 379;
Mervyn’s, supra, 39 Cal.4th at pp. 231-232 [we “look to function, not form”].)
Nor is a new cause of action, or omission of a defense, necessary. (Cf. ARA
Living Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556,
1564 (ARA Living) [although amendment to elder abuse law “fell short of
creating a cause of action,” it did not “prescribe[ ] only procedures for trials”].)
Rather, the issue is whether a law makes a significant change to potential
liability. (Mervyn’s, at pp. 231-232; accord, McHugh, supra, 12 Cal.5th at
p. 230.) Assembly Bill 218’s addition of treble damages does so.
We also reject Plaintiffs’ reliance on attorney fees cases. Courts treat
“legislation affecting the recovery of costs, including attorney fees, as
addressing a ‘procedural’ matter that is ‘prospective’ in character and thus
not at odds with the general presumption against retroactivity.” (USS-Posco
Industries v. Case (2016) 244 Cal.App.4th 197, 221.) The cases cited by
Plaintiffs follow that approach, but do not involve damages and offer no
guidance here. (Woodland Hills Residents Assn., Inc. v. City Council (1979)
23 Cal.3d 917, 930-932; Olson v. Hickman (1972) 25 Cal.App.3d 920, 922.)
ARA Living did involve both fees and damages, and illustrates they remain
distinct. (ARA Living, supra, 18 Cal.App.4th at p. 1562.) There, the Court of
19
Appeal held attorney fee changes applied to pending actions, but a new
provision allowing successors (not just surviving victims) to recover pain and
suffering damages applied prospectively only. (Id. at pp. 1562-1564.)
More broadly, Plaintiffs contend the Legislature intended “to broaden
the scope and application of [section] 340.1 to the widest possible extent, as it
has consistently done over decades,” noting Assembly Bill 218’s retroactive
change to Government Code section 905 as well. There is no dispute that
Assembly Bill 218, and prior amendments to section 340.1, aimed to reduce
barriers to recovery for childhood sexual assault victims. (See, e.g., Coats v.
New Haven Unified School Dist. (2020) 46 Cal.App.5th 415, 430 and fn. 7
[“the Legislature has consistently worked to expand the ability of victims of
childhood sexual abuse to seek compensation”]; McVeigh v. Doe 1 (2006) 138
Cal.App.4th 898, 903-904 [“The overall goal of section 340.1 is to allow
victims of childhood sexual abuse a longer time period in which to bring suit
against their abusers.”].) But that overarching goal does not mean the
Legislature intended one particular provision (here, adding treble damages)
to apply retroactively. (Cf. Evangelatos, supra, 44 Cal.3d at p. 1213 [“Most
statutory changes are . . . intended to improve a preexisting situation and to
bring about a fairer state of affairs, and if such an objective were itself
sufficient to demonstrate a clear legislative intent to apply a statute
retroactively, almost all statutory provisions . . . would apply retroactively
rather than prospectively.”].)
d. Legislative History
Finally, the legislative history for Assembly Bill 218 does not support
retroactive application of the treble damages provision.
We begin with the parties’ requests for judicial notice. We take notice
of the Assembly Bill 218 bill history, including interim versions and
20
committee reports and analyses, as well as fact sheets from the bill’s author.
(Evid. Code, § 452, subd. (c) [official records of Legislature are subject to
judicial notice]; Carter v. California Dept. of Veterans Affairs (2006) 38
Cal.4th 914, 928 [taking judicial notice of bill author’s fact sheet, where it
“appear[ed] to be part of the debate on the legislation”].) However, we will
not take notice of letters to the Legislature, as they do not establish
legislative intent. (In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th
39, 47, fn. 6 (Pendleton) [denying notice of letters to legislators, which
opposed later-deleted bill text; it was “not apparent” letters were “considered
by the Legislature when [the bill] was considered” and there was “no basis” to
assume they “reflect legislative intent”]; see Superior Court v. County of
Mendocino (1996) 13 Cal.4th 45, 59, fn. 7 [denying judicial notice of irrelevant
material].) For similar reasons, we also deny notice of news and journal
articles, and the bill author’s press release. (See People v. Garcia (2002) 28
Cal.4th 1166, 1175, fn. 5 [denying notice of “authoring legislator’s press
releases and letters”].)
We now turn to the bill history of Assembly Bill 218. We focus on
materials highlighted by Plaintiffs, and conclude they do not reflect clear
legislative intent for retroactive treble damages.
First, Plaintiffs argue the “legislative history contains frequent
references to the retroactive effect of the statute,” citing an Assembly
Committee on the Judiciary report. (Assem. Comm. Jud., Mar. 12, 2019.)
The issue is whether the treble damages provision is retroactive, not the
entire law, and the references they cite do not establish it is.
Plaintiffs state the report reflected numerous groups opposed the treble
damages provision, and one insurance group objected “to the application of
treble damages retroactively . . . .” Input to the legislature does not reflect
21
legislative intent. (Cf. Pendleton, supra, 24 Cal.4th at p. 47, fn. 6.) Thus, we
also accord no significance to the fact that, as Plaintiffs note, the “legislative
history does not reflect any proposed amendment in response to this
objection.” Plaintiffs then focus on subsequent comments, which state “the
flip side of the burden of the cost of these claims on [entities] that protected
sexual abusers of children is the lifetime damage done to those children.”
The comments continue, stating in part that claim revival “only assures that
claims can be heard on their merits.” These comments do not constitute a
“clear indication” that the treble damages provision is retroactive. (Quarry,
supra, 53 Cal.4th at p. 955.) Plaintiffs also note the Assembly report states,
“This measure applies retroactively to local public agencies” and “remov[es]
the protections of the [Government Tort Claims Act] from local public
entities.” The “measure applies” statement is a heading for a section that
addresses only changes to Government Code section 905. The “remov[es] . . .
protections” language is from a subsequent section, under the heading “The
bill also exposes those who cover up the sexual abuse of children to additional
punishment”—which does address cover-up claims and treble damages, but
not retroactivity.
Second, Plaintiffs argue the legislative history “confirms a retroactive
intent,” since “retroactivity was justified” by the harm from the assaults and
the importance of deterring cover-ups. They cite an “According to the
Author” section of an Assembly report, which in addressing treble damages,
states in part that the “reform is clearly needed . . . .” (Assem. Bill 218, 3d
reading, Jan. 16, 2019 (2019-2020 Reg. Sess.) p. 2.) We discuss this author
statement post, in addressing whether the treble damages provision is
punitive. Here, it suffices to say the statement does not support retroactivity.
22
Legislative recognition that a change is important does not mean it is
retroactive, as we note above. (Evangelatos, supra, 44 Cal.3d at p. 1213.)
Finally, Plaintiffs argue “cover-ups were a major justification for
retroactivity and revival,” and we should not accept that statute portions
“addressing cover-up were prospective only.” They cite a Senate Rules
Committee report, which states in part, “[T]he systematic incidence of
childhood sexual assault . . . and the cover-ups that accompanied them
arguably make both a revival period and an extended statute of limitations
warranted.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill 218 (2019-2020 Reg. Sess.) as amended Aug. 30, 2019,
p. 5.) We are not persuaded. Section 340.1 has been amended repeatedly to
reduce barriers to claims, including a prior claim revival period. (Quarry,
supra, 53 Cal.4th at p. 955.) As we discuss post, actual damages were and
remain available for cover-up type allegations. To the extent cover-ups were
part of the reason for further reducing such barriers in Assembly Bill 218,
that is not an express statement that treble damages can be pursued
retroactively.11
3. Impact of Government Code Section 818
Treble damages are available under Code of Civil Procedure section
340.1, subdivision (b)(1), “unless prohibited by another law.” (§ 340.1,
11 As Plaintiffs note elsewhere, a Senate Appropriations Committee
report stated the fiscal impact would include “[u]nknown, potentially-major
out-year costs . . . to the extent litigation is successfully brought outside the
current statute of limitations and/or the districts are liable for treble
damages.” (Sen. Com. on Appropriations Rep. on Assem. Bill 218 (2019-2020
Reg. Sess.) Aug. 12, 2019.) At most, this reflects uncertainty about whether
treble damages can be brought outside the statute of limitations, not
retroactive intent.
23
subd. (b)(1).) We conclude Government Code section 818 precludes
application of this provision to public school districts, joining our colleagues
in other courts who have reached this conclusion.12
a. Applicable Law
“In tort actions, damages are normally awarded for the purpose of
compensating the plaintiff for injury suffered . . . .” (Kizer, supra, 53 Cal.3d
at pp. 146-147.) “When, however, the defendant’s conduct is outrageous,
additional damages may be awarded to punish the defendant and to deter
such conduct in the future. [Citations.] Punitive or exemplary damages ‘are
not intended to compensate the injured party, but rather to punish the
tortfeasor whose wrongful action was intentional or malicious . . . .’ ” (Id. at
p. 147; see Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, fn. 13
[“purpose of punitive damages is to punish wrongdoers and thereby deter . . .
wrongful acts”]; Civ. Code, § 3294, subd. (a) [allowing punitive damages in
non-contract cases where defendant is “guilty of oppression, fraud, or
malice”].)
Government Code section 818, enacted as part of the Government Tort
Claims Act (Gov. Code, § 810, et seq., sometimes “Tort Claims Act”), states:
“Notwithstanding any other provision of law, a public entity is not liable for
damages awarded under Section 3294 of the Civil Code or other damages
12 (LAUSD, supra, 64 Cal.App.5th at pp. 553-554, 567 [granting writ
relief to public school district, where trial court denied motion to strike treble
damages; holding § 340.1, subd. (b) “does not have a compensatory function”;
its “primary purpose is to punish . . . cover ups to deter future ones”; and a
“public entity . . . is immune from these enhanced damages under [Gov. Code,
§] 818”]; X.M., supra, 68 Cal.App.5th at pp. 1019-1020 [denying student’s writ
petition from grant of motion to strike; purpose was punitive, not
compensatory].)
24
imposed primarily for the sake of example and by way of punishing the
defendant.” (See State Dept. of Corrections v. Workers’ Comp. Appeals Bd.
(1971) 5 Cal.3d 885, 891 (Dept. of Corrections) [Gov. Code, § 818 refers to
damages “designed to punish the defendant rather than to compensate the
plaintiff”]; Kizer, supra, 53 Cal.3d at p. 146 [Gov. Code, § 818 “was not
intended to proscribe all punitive sanctions,” but to limit “exposure to . . .
actual compensatory damages in tort cases”].)
b. Statutory Language
Section 340.1, subdivision (b)(1), states in pertinent part that a plaintiff
who proves a childhood sexual assault “was . . . the result of a cover up” may
“recover up to treble damages . . . unless prohibited by another law.” It does
not address the purpose of the treble damages.
Plaintiffs contend that “[b]y linking . . . treble damages to a showing of
causation, the Legislature made clear that [they] are intended to compensate
the victim of cover-up.” The District argues the provision’s plain meaning is
that one may recover up to treble damages, unless “some other law” bars
them; Government Code section 818 is “the other law”; and the provision
“does not apply to public entities because [it] is meant to punish . . . .”
We conclude the statutory text supports the District’s view that the
treble damages provision is punitive, not compensatory, and Plaintiffs’ focus
on causation is misplaced. We further conclude the text reasonably
encompasses Government Code section 818 as “another law,” and bars treble
damages against the District.
First, the text reflects a primarily punitive purpose. Section 340.1,
subdivision (a), gives a plaintiff additional time to pursue a tort action for
“damages suffered as a result of childhood sexual assault.” This could
include damages due to a plaintiff’s awareness that the assault resulted from
25
a prior cover-up. Treble damages under subdivision (b), like punitive
damages, are “by definition in addition to actual damages and beyond the
equivalent of harm done.” (Dept. of Corrections, supra, 5 Cal.3d at p. 891.)
Further, as with punitive damages, a plaintiff must prove additional
culpability by defendant (i.e., the prior cover-up), and the jury has discretion
over whether and how much to award. (Cf. Marron v. Superior Court (2003)
108 Cal.App.4th 1049, 1059 [“In determining compensatory damages, ‘[a]
jury’s assessment of the extent of a plaintiff’s injury is essentially a factual
determination, whereas its imposition of punitive damages is an expression of
its moral condemnation.’ ” (Italics omitted)].)
Plaintiffs’ position lacks merit. Focusing on what they characterize as
causation, they find it significant that only subsequent victims can seek
treble damages, not one whose assault was covered up. In turn, they argue
the conduct of a defendant that covers up assault “is exactly the same
whether the abuser reoffends or not,” and if treble damages were “intended
solely to punish . . . , treble damages would be available whether or not the
perpetrator re-offends.” We disagree. The Legislature could reasonably
distinguish between the culpability of Defendant A that covers up one
assault, and Defendant B, whose cover-up results in further assaults. For
example, Defendant A could take other measures to protect children, thus
avoiding another assault, while Defendant B allows an environment to
persist in which the perpetrator assaults others.
Second, the only reasonable interpretation of “unless prohibited by
another law” is that it refers to laws that limit enhanced damages, like
Government Code section 818. Although Government Code section 818 may
not be the only such exception to the treble damages provision, it is an
exception. Plaintiffs question whether “another law” refers to Government
26
Code section 818, noting the Legislature could have identified it by name, but
they do not offer an alternative explanation for what law or laws it does refer
to. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1118 [“ ‘ “Courts should give meaning to every word of a statute if possible,
and should avoid a construction making any word surplusage.” ’ ”].)
Plaintiffs maintain that even if the treble damages provision has “some
punitive aspect,” it remains compensatory and Government Code section 818
does not apply, citing the legislative history and case law from other contexts.
We address and reject these arguments in turn.
c. Legislative History
Plaintiffs do not establish the legislative history reflects clear intent for
treble damages to serve a compensatory purpose or to apply to public entities.
First, Plaintiffs cite a Senate Judiciary Committee report comment that
states, in part, that “the victim’s assault must result from a prior cover up of
childhood sexual assault.” (Sen. Com. on Judiciary, Rep. on Assem. Bill 218
(2019-2020 Reg. Sess.), Jul. 2, 2019, p. 11.) The report is silent as to the
purpose of treble damages, and Plaintiffs’ causation argument for a
compensatory purpose lacks merit, as discussed above.
Second, Plaintiffs direct us to an excerpt from the bill author statement
noted above:
“[Assembly Bill] 218 would also confront the pervasive
problem of cover ups in institutions, from schools to sports
league[s], which result in continuing victimization and the
sexual assault of additional children. The bill would allow
for recovery of up to treble damages from the defendant
who covered up sexual assault. This reform is clearly
needed both to compensate victims who never should have
been victims—and would not have been if past sexual
assault had been properly brought to light—and also as an
effective deterrent against individuals and entities who
27
have chosen to protect the perpetrators of sexual assault
over the victims.”
The author statement does not establish a compensatory purpose. The
statement does not identify the injury for which compensation is needed, and
the language suggests a punitive motive. (LAUSD, supra, 64 Cal.App.5th at
p. 560; see also Sen. Com. on Judiciary, Background Information Sheet for
Assem. Bill 218, May 11, 2019 [bill would “increas[e] . . . damages a victim
may recover from those who sought to cover up the abuse in order to deter
bad actors”].) As noted, plaintiffs can already recover all of their actual
damages. (See X.M., supra, 68 Cal.App.5th at p. 1027 [no legislative history
materials identified injuries that “treble damages are needed to compensate
that actual damages do not already cover”].) And, even if the Legislature did
intend treble damages to aid in compensation for cases involving cover-ups, it
still does not follow that treble damages were not primarily punitive.
Third, Plaintiffs cite statements that purportedly show the Legislature
intended to subject all defendants to treble damages. They start with a
statement in an early Assembly report, repeated elsewhere, that “[t]his bill
applies equally to abuse occurring at public and private schools and applies to
all local public entities.” (Assem. Bill 218, 3d reading, Jan. 16, 2019 (2019-
2020 Reg. Sess.) p. 2.) Parts of Assembly Bill 218 apply to public entities, but
that does not mean the treble damages provision does. Indeed, the
Legislative Counsel’s Digest in the enacted bill states the bill provides for
“treble damages against certain defendants,” and does not limit that
qualification to defendants who engaged in prior cover-ups. (Italics added.)
Plaintiffs also cite the Senate Appropriations Committee report comment,
noted above, that there could be costs to school districts “to the extent
litigation is successfully brought outside the current statute of limitations
28
and/or the districts are liable for treble damages.” As we explained, this text
reflects, at most, uncertainty as to public entity damages, not clear intent.
Plaintiffs make a related policy argument, contending “there is no basis
in logic or law to impose a lesser standard on public schools . . . .” We
question this characterization, as all schools remain liable for actual
damages, and reject the point regardless. Courts have long recognized there
is little justification for imposing enhanced damages on public entities,
including public schools. (See McAllister v. South Coast Air Quality Etc. Dist.
(1986) 183 Cal.App.3d 653, 660 [deterrence aspect of punitive damages has
“ ‘little justification’ ” for public entities; “officials will do their duty,”
employees will be disciplined as needed, and employees would not be deterred
by award against entity]; Wells v. One2One Learning Foundation (2006) 39
Cal.4th 1164, 1196, fn. 20 (Wells) [even if California False Claims Act’s
(CFCA) “treble-damage provisions are not strictly, or even primarily,
‘punitive,’ ” the “purpose behind the statutory ban on punitive damages
against public entities—to protect their tax-funded revenues from legal
judgments in amounts beyond those strictly necessary to recompense the
injured party—applies equally here”]; see Visalia Unified School Dist. v.
Superior Ct. (2019) 43 Cal.App.5th 563, 570 [punitive damages against public
entities “ ‘punish the very group’ ” they are “ ‘intended to benefit’—the
taxpaying members of the general public.”].)
Finally, Plaintiffs argue that even after the phrase “unless prohibited
by another law” was added to section 340.1, subdivision (b), various groups
and persons, including “public and private school officials,” still requested the
bill “be amended to eliminate . . . treble damages.” They cite an Assembly
report from March 2019, but other bill history materials reflect the language
was added later. (See Assem. Bill 218 text, as amended in Senate on Aug. 30,
29
2019; Sen. Comm. on Appropriations, analysis of Assem. Bill 218 (2019-2020
Reg. Sess.) Aug. 30, 2019.) Regardless, the opposing groups’ concerns were
described in substantially similar terms in multiple reports over time, and
there is no indication the description was reviewed when the “another law”
language was added, such that we should ascribe significance to any lack of
modification. Lastly, private groups would still have reason to oppose treble
damages, after addition of language referencing Government Code section
818, and the views of outside entities do not reflect legislative intent,
regardless. (Cf. Pendleton, supra, 24 Cal.4th at p. 47, fn. 6.)
d. Case Law From Other Contexts
Plaintiffs also rely on case law from other contexts to contend the treble
damages provision is compensatory or otherwise is not subject to Government
Code section 818, including civil penalties, workers’ compensation, rent
control, and federal statutes. None of these authorities convince us to reach a
different conclusion.
First, Plaintiffs contend “ ‘the immunity . . . under section 818 is
narrow, extending only to damages whose purpose is simply and solely
punitive,’ ” citing a civil penalties case, Los Angeles County Metropolitan
Transp. Authority v. Superior Court (2004) 123 Cal.App.4th 261, 275
(LACMTA), and two earlier civil penalty precedents, People ex rel. Younger v.
Superior Court (1976) 16 Cal.3d 30 (Younger) and Kizer, supra, 53 Cal.3d
139. They also cite Younger and Kizer to contend “statutory schemes with
obvious punitive elements are nonetheless permissible despite Government
Code [section] 818 if they advance any legitimate non-punitive interest.”
Civil penalties entail different considerations than enhanced tort damages,
and these cases are otherwise distinguishable.
30
In Younger, the California Supreme Court held Government Code
section 818 did not immunize the Port of San Francisco from civil penalties
for oil spills under the Water Code. (Younger, supra, 16 Cal.3d at pp. 34-35.)
The Court held the penalties were not “simply and solely punitive in nature,
but fulfill legitimate compensatory functions.” (Id. at p. 39.) The Court
explained much of the oil spill harm was “unquantifiable” and “cannot be
recovered in an action for actual damage,” and that collected sums were used
for pollution abatement. (Id. at p. 39 and fn. 6.)
Then, in Kizer, the Court held civil penalties could be imposed on a
county long-term care facility under the Health and Safety Code. (Kizer,
supra, 53 Cal.3d at p. 141.) Focusing on the Tort Claims Act, the Court first
held that nothing therein suggested Government Code section 818 “was
intended to apply to statutory civil penalties designed to ensure compliance
with a detailed regulatory scheme . . . even though they may have a punitive
effect.” (Kizer, at p. 146; id. at pp. 147-148 [“primary purpose” of penalties is
“to secure obedience . . . to assure important public policy objectives”].) The
Court also determined the statutory scheme did not “suggest[ ] . . .
government health facilities should be treated differently than private
facilities,” and disagreed with the county that another statutory provision
could provide a fully compensatory remedy. (Id. at pp. 148, 150.)
Lastly, in LACMTA, the Court of Appeal held a public transit authority
was subject to a civil penalty under Civil Code section 52, subdivision (b)(2).
(LACMTA, supra, 123 Cal.App.4th at p. 276.) The court noted “fundamental
differences” between civil penalties and punitive damages, including that
penalties are mandatory and do not require the plaintiff suffer actual
damages. (Ibid.) The court also noted the penalty there “appear[ed] designed
31
to ensure that the plaintiff will receive at least a minimum amount of
compensation,” even with “little or no actual damages . . . .” (Ibid.)
These cases do not aid Plaintiffs. Plaintiffs seek enhanced damages in
a tort action for childhood sexual assault, not application of civil penalties in
a complex regulatory scheme. There is no need to provide minimum
compensation or incentivize lawsuits, as assault damages are quantifiable
(and may be considerable), plaintiffs are already entitled to receive such
damages, and, indeed, Plaintiffs have done so here. (See, e.g., J.P. v.
Carlsbad Unified School District (2014) 232 Cal.App.4th 323, 332 [district
owed at least $1.8 million to plaintiffs, even after apportionment].)13 As for
the “simply and solely punitive” phrasing, we view that as a way of applying
the “primarily punitive” requirement of Government Code section 818 in the
civil penalties context—not a de facto elimination of the word “primarily.”
(See Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59
Cal.4th 1029, 1039 [“ ‘[a]n interpretation that renders statutory language a
nullity is obviously to be avoided.’ ”].)
Second, Plaintiffs contend a “strong analogy” can be made between the
damage multiplier in Department of Corrections, a workers’ compensation
case, and the treble damages provision here. We disagree. There, the
California Supreme Court held Government Code section 818 did not apply to
a statute that increased a workers’ compensation award by 50 percent for
injuries resulting “from the serious and willful misconduct of the employer.”
(Dept. of Corrections, supra, 5 Cal.3d at pp. 887, 891.) The Court explained
the purpose of ordinary workers’ compensation “was not . . . to be full . . .
13 We deny the District’s request for judicial notice of substantial damage
awards in two recent cases, as they are not necessary to our analysis.
32
compensation,” but, rather, to transfer “part of the [employee’s] burden” to
“the employer . . . .” (Id. at p. 889.) Thus, the “increased award [was] not a
penalty in the sense of being designed primarily to punish the defendant
rather than to more adequately compensate the plaintiff.” (Id. at p. 890.) In
contrast, any plaintiff suing for childhood sexual assault is entitled to recover
actual damages, and enhanced damages are in excess of those actual
damages. We reject Plaintiffs’ claim that childhood sexual assault victims
are not fully compensated, because respondeat superior limits employer
liability, the employee is often judgment proof, and juries apportion some
liability to the employee. A plaintiff’s decision not to pursue recovery from
the employee does not mean they are able to receive “only partial
compensation.”
Third, Plaintiffs contend courts have found treble damages multipliers
are not always punitive, citing a rent control case, Beeman v. Burling (1990)
216 Cal.App.3d 1586, and two federal cases, PacifiCare Health Sys., Inc. v.
Book (2003) 538 U.S. 401 (Book) and Cook County v. United States ex rel
Chandler (2003) 538 U.S. 119. These cases do not help Plaintiffs, either. In
Beeman, the Court of Appeal disagreed a rent control ordinance improperly
required “not less than three times actual damages” for wrongful eviction.
(Beeman, at p. 1597.) It distinguished statutory from punitive damages,
explaining the former may take the form of penalties or a damages
multiplier, but are “set by a legislative body,” while the latter are “entrusted
to the factfinder.” (Id. at pp. 1597-1598.) Here, the treble damages provision
is permissive and applied by the factfinder. As for Book and Cook, the United
States Supreme Court recognized treble damages can have remedial goals,
but in the context of complex federal laws that have no bearing on the
California statutes before us. (Book, supra, 538 U.S. at pp. 405-406 [whether
33
arbitration agreement ban on punitive damages covered RICO treble
damages was issue for arbitrator; noting treble damages were on a
“spectrum” and those in RICO were “remedial in nature”]; ibid. [treble
damages under Clayton Act (antitrust) were remedial]; Cook, supra, 538 U.S.
at p. 130 [amendment authorizing treble damages in federal False Claims
Act, while “essentially punitive,” had “compensatory traits”].)
Finally, the District argues the enhanced damages provision in Civil
Code section 52, subdivision (a), which applies to laws including the Unruh
Act and permits up to treble damages, is analogous to Assembly Bill 218
treble damages and courts have held it to be punitive.14 The District cites,
inter alia, Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142,
1171, superseded by statute on other grounds in Munson v. Del Taco, Inc.
(2009) 46 Cal.4th 661 (Munson) and Archibald v. County of San Bernardino
(C.D. Cal., May 10, 2018) 2018 WL 8949779. Plaintiffs dispute the relevance
of these authorities. To the extent they offer guidance, they are consistent
with our conclusion that Government Code section 818 precludes treble
damages here. In Harris, the California Supreme Court held the Unruh Act
did not prevent a landlord’s minimum income policy, in part because the act
barred only intentional gender discrimination. (Harris, at pp. 1148-1149.)
The Court noted “the damages provision allowing for an exemplary award . . .
reveals a desire to punish . . . .” (Id. at p. 1172.) In Archibald, a district court
denied treble damages against a county under Civil Code section 52,
subdivision (a), citing Harris and Government Code section 818. (Archibald,
14 See Civil Code, section 52, subd. (a) (defendant is “liable for each and
every offense for the actual damages, and any amount that may be
determined by a jury, or a court sitting without a jury, up to a maximum of
three times the amount of actual damage but in no case less than four
thousand dollars ($4,000).”)
34
at *1-*2.) The court explained other courts had relied on Harris to find these
damages were punitive and “unavailable against a public entity,” and
observed they bore “some . . . hallmarks of punitive damages.” (Id. at *4;
ibid. [noting Harris language was dicta, considering if there was a non-
punitive purpose there, and concluding there was not].) The treble damages
here likewise are primarily intended to punish, resemble punitive damages,
and lack a compensatory purpose.
4. Plaintiffs Do Not Establish Reversal Is Warranted
Finally, Plaintiffs contend a retrial is warranted when a statutory
amendment “requires a new finding of fact.” This argument rests on their
position that they can pursue treble damages, which we have rejected.
C. Sexual Harassment Claim
Plaintiffs contend the trial court erred by granting the District’s
demurrers to their sexual harassment claims, asserting the District is a
“person” subject to Civil Code section 51.9 and they adequately stated a claim
for relief under Civil Code sections 51.9 and 52. We reject these arguments
and conclude the trial court properly granted the demurrers.
1. Additional Facts
As noted, each Plaintiff asserted a claim for sexual harassment under
Civil Code section 51.9; the District demurred, including on the grounds that
it was not subject to liability; and the trial court sustained the demurrers
without leave to amend.
The trial court stated that under Civil Code section 51.9, “the term
‘person’ does not strictly apply to the individual perpetrator.” The court
acknowledged C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094(Tenet) held a private hospital employer could be liable under Civil Code
section 51.9 for sexual harassment, but explained this did not apply to public
35
entities: “[T]he district cannot be held liable for the actions of a teacher
because [Civil Code] section 51.9, as currently written, does not explicitly
create liability for a public entity. . . . [W]ithout a statutory basis to hold the
district directly liable for sexual harassment, the Government Claims Act
immunizes the district.” The court then addressed the public policy and cost
implications of imposing vicarious liability for sexual misconduct by teachers,
citing John R. v. Oakland Unified School District (1989) 48 Cal.3d 438(John R.), and concluded it was persuaded government entities were not
liable on that basis.
2. Applicable Law
Civil Code section 51.9 provides a cause of action for sexual harassment
against a “person” who is in a “business, service, or professional relationship”
with the plaintiff. (Civ. Code, § 51.9, subd. (a)(1).) The statute identifies a
nonexclusive list of persons with whom a relationship may exist, including
physicians, landlords, and teachers. (Id. at subd. (a)(1)(A)-(I).) Damages are
“awarded as provided by subdivision (b) of [Civil Code] Section 52.” (Civ.
Code, § 51.9, subd. (b).)
Civil Code section 52, subdivision (b) states: “Whoever denies the right
provided by [Civil Code] Section 51.7 or 51.9, or aids, incites, or conspires in
that denial, is liable for each and every offense for the actual damages
suffered by any person denied that right,” as well as “exemplary damages,”
“attorney’s fees as may be determined by the court,” and, for Civil Code
section 51.7, a civil penalty.
“We review a ruling sustaining a demurrer de novo, exercising
independent judgment as to whether the complaint states a cause of action as
a matter of law. [Citation.] ‘We affirm the judgment if it is correct on any
ground stated in the demurrer, regardless of the trial court’s stated reasons.’
36
[Citation.] Further, ‘ “[i]f another proper ground for sustaining the demurrer
exists, this court will still affirm the demurrer.” ’ ” (Abatti v. Imperial
Irrigation District (2020) 52 Cal.App.5th 236, 294 (Abatti).)
“When a demurrer is sustained without leave to amend, ‘we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on
the plaintiff.’ ” (Abatti, supra, 52 Cal.App.5th at pp. 294-295, citing Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
3. Whether Public Entity Is A “Person” Under Civil Code
Section 51.9
We begin with the central issue here: whether a public school district
is a “person” under Civil Code section 51.9. We conclude that it is not.
a. Statutory Language
Civil Code section 51.9 applies to a “person” in a professional
relationship with the plaintiff. (Civ. Code, § 51.9, subd. (a)(1).) Although
Civil Code section 14 states “the word person includes a corporation as well
as a natural person,” it does not state the word includes government entities.
Plaintiffs maintain the District is a “public corporation,” and thus a person
for purposes of Civil Code sections 14 and 51.9. They further argue entities
are subject to liability as persons under other authorities, and government
liability is limited only when it infringes on sovereign power. These
arguments lack merit.
First, Plaintiffs do not establish the District is a person under Civil
Code section 14. “A public school district is a political subdivision of the
State of California.” (Sheppard v. North Orange County Regional
Occupational Program (2010) 191 Cal.App.4th 289, 301; Butt v. State of
37
California (1992) 4 Cal.4th 668, 680-681 [“ ‘Local districts are the State’s
agents for local operation of the common school system’ ”].) To the extent a
school district is characterized as a public corporation, the word “corporation”
in that term does not mean it is a “corporation” within the meaning of Civil
Code section 14, much less Civil Code section 51.9. (Cf. Delano Farms Co. v.
California Table Grape Com. (2018) 4 Cal.5th 1204, 1238 [“Many such
[public] corporations, such as school districts [citation], fulfill quintessentially
governmental functions”].) Plaintiffs’ reliance on the charter school holding
in Wells, supra, 39 Cal.4th 1164, is misplaced. Wells did determine a charter
school was a “person” subject to the CFCA, but held public school districts are
not liable under that law. (Id. at p. 1200 [charter school was a “person”
because CFCA statute did not exempt “ ‘corporations’ organized under the
Nonprofit Public Benefit Corporation Law” and certain other laws]; id. at
p. 1179 [public school districts are not “persons” under the CFCA]; see also,
e.g., Gateway Community Charters v. Spiess (2017) 9 Cal.App.5th 499, 507
[charter school, unlike public school district, was not “other municipal
corporation” exempt from Labor Code provision at issue].)
Second, Plaintiffs rely on other inapposite authorities to argue for a
broad interpretation of “person” under Civil Code section 51.9. Hassan v.
Mercy American River Hospital (2003) 31 Cal.4th 709 held noncorporate
entities were persons for purposes of a medical reporting privilege in Civil
Code section 43.8, noting in part that the term “including” in Civil Code
section 14 was expansive. Hassan relied on City of Pasadena v. Stimson
(1891) 91 Cal.238, 248, which held a statute permitting persons to acquire
property for a sewer by condemnation applied to corporations. (Stimson, at
pp. 245-246.) These cases involve dramatically different contexts and offer no
guidance on the meaning of “person” here. (See State ex rel Harris v.
38
PriceWaterhouseCoopers, LLP (2006) 39 Cal.4th 1220, 1232 [rejecting
reliance on Stimson, in companion case to Wells; “there are numerous
indications in the language, structure, and history of the CFCA that the
Legislature did not intend this particular statute to include public entities as
‘persons’ ”]; People v. Kareem A. (2020) 46 Cal.App.5th 58, 70-75 [noting use
of term “include” in Code of Civil Procedure section permitting imposition of
sanctions, but relying on legislative purpose and history to conclude agency
was subject to them].) Nor does the inclusion of “teacher” in the list of
individuals subject to Civil Code section 51.9 compel a broad interpretation
here. (Civ. Code, § 51.9, subd. (a)(1)(E).) Teachers may have private or
public employers, and, regardless, imposing liability on a teacher does not
pose the same concerns as imposing it on a public school district.
Third, Plaintiffs argue “person” should not be interpreted to exclude
government entities unless liability would infringe their sovereign powers,
citing Flournoy v. State (1962) 57 Cal.2d 497 and other older cases. But, as
the California Supreme Court explained in Wells, “[T]he premise that public
entities are statutory ‘persons’ unless their sovereign powers would be
infringed is simply a maxim of statutory construction. While the ‘sovereign
powers’ principle can help resolve an unclear legislative intent, it cannot
override positive indicia of a contrary legislative intent.” (Wells, supra, 39
Cal.4th at pp. 1192-1193 [both indicia of legislative intent and fiscal impact
foreclosed public school liability under CFCA].) As we explain next, Plaintiffs
do not establish Civil Code section 51.9 was intended to apply to public school
districts, or that it would not impede their functions, and thus do not show
the sovereign power principle should apply.
39
b. Statutory Purpose
Plaintiffs contend that imposing liability under Civil Code section 51.9
on public school districts would effectuate, not impede, their functions, which
include preventing harassment. They relatedly contend liability would serve
the state’s interest in compensating victims and encourage them to come
forward, and, otherwise, there is “no incentive to correct ongoing sexual
harassment.” These contentions lack merit.
First, there is no question that public school districts must provide a
harassment-free environment for students. (See Ed. Code, § 220 [barring
discrimination in schools receiving state funding]; id., § 230 [prohibited
practices include harassment on the basis of sex]; id., § 231.5 [requiring
“notification of the prohibition against sexual harassment” and “available
remedies”]; Donovan v. Poway Unified Sch. Dist. (2008) 167 Cal.App.4th 567,
579 (Donovan) [addressing peer sexual orientation harassment claim under
Ed. Code, § 220].) But statutory interpretation requires us to consider this
statute’s purpose. Plaintiffs do not establish Civil Code section 51.9 was
intended to encourage school districts to curtail harassment, or necessary to
do so. Tenet, which involved a private hospital, noted the enacting bill for
Civil Code section 51.9 indicated its purpose was to expand liability in
recognition that “ ‘sexual harassment occurs not only in the workplace, but in
relationships between providers of professional services and their clients.’ ”
(Tenet, supra, 169 Cal.App.4th at p. 1105 [discussing Sen. Bill 612; Stats.
1994, uncodified § 1]; cf. Wells, supra, 39 Cal.4th at p. 1191 [addressing
CFCA; legislative history “suggests there was no intent to include school
districts and other public and governmental agencies”].)
Further, there are other laws and legal theories besides Civil Code
section 51.9 that encourage harassment victims to come forward, and let
40
them obtain compensation when they do, including the Education Code.
(Ed. Code, §§ 220, 231.5; Donovan, supra, 167 Cal.App.4th at p. 579; see
C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 (C.A.)
[“public school district may be vicariously liable under [Gov. Code, §] 815.2
for the negligence of administrators or supervisors in hiring, supervising and
retaining a school employee who sexually harasses and abuses a student”].)
Second, Plaintiffs also do not establish that applying Civil Code section
51.9 to public school districts would have no effect on their functioning.
Wells, which addressed the fiscal impact of the CFCA, is instructive. (Wells,
supra, 39 Cal.4th at p. 1193.) The Court explained, in part:
“School districts must use the limited funds at their
disposal to carry out the state’s constitutionally mandated
duty to provide a system of public education. . . . [¶]
[T]here can be no doubt that public education is among the
state’s most basic sovereign powers. Laws that divert
limited educational funds from this core function are an
obvious interference with the effective exercise of that
power.”
(Wells, supra, 39 Cal.4th at p. 1195; ibid. [“The Legislature is aware of the
stringent revenue, budget, and appropriations limitations affecting all
agencies of government—and public school districts in particular”]; id. at
pp. 1196-1197 [Legislature “did not intend to subject financially constrained
school districts . . . to the treble-damages-plus-penalties provisions of the
CFCA”].) For similar reasons, we will not presume the Legislature intended
to subject public school districts to Civil Code section 51.9 by implication.
Plaintiffs’ attempt to distinguish Wells is unpersuasive. They argue
Civil Code section 51.9 imposes only actual damages and attorney fees
(acknowledging exemplary damages under Civ. Code, § 52, subd. (b)(1) are
limited by Gov. Code, § 818), whereas the CFCA has “draconian liabilities,”
41
including double or treble damages, civil penalties, and attorney fees and
costs. They then reason that “[g]iven Wells’ pronouncement that an
obligation to pay damages does not infringe on sovereign powers,” we should
focus only on fees and “fees are already available against school districts in
sexual harassment cases under Title IX and Section 1021.5.” Wells
recognized that “where liability otherwise exists, public entities must pay
legal judgments,” but did not state damages are not impactful. (Wells, supra,39 Cal.4th at p. 1196, italics added.) And fees compound that impact, even if
overall exposure is not as high as under the CFCA. Plaintiffs also contend
the “ ‘ “ultimate purpose of the [CFCA] is to protect the public fisc,” ’ ” citing
Wells, at page 1196. The California Supreme Court has recognized fiscal
impact on schools as a concern in other contexts, as well, not just under the
CFCA. (See, e.g., John R., supra, 48 Cal.3d at p. 451 [addressing vicarious
liability for teacher sexual misconduct].)
Finally, the District directed us in its briefing to Brennon B. v. Superior
Court (2020) 57 Cal.App.5th 367, 369, which held the Unruh Act does not
apply to public school districts. After briefing concluded, the California
Supreme Court affirmed the Court of Appeal, holding in relevant part, “The
statutory text of the [Unruh] Act, its purpose and history, and our prior
caselaw all indicate that public schools, as governmental entities engaged in
the provision of a free and public education, are not ‘business establishments’
within the meaning of the Act. (Civ. Code, § 51, subd. (b).)” (Brennon B. v.
Superior Court (2022) 13 Cal.5th 662, 669 (Brennon B.).) The parties
addressed the decision at oral argument, and Plaintiffs maintain it is not
applicable here.
We conclude that although Brennon B. involves the Unruh Act, not
section 51.9, the Court’s analysis is instructive, and consistent with our
42
conclusion that Civil Code section 51.9 does not apply to public school
districts. Pertinent here, the Court noted the district’s reliance on Wells,
supra, 39 Cal.4th 1164, to argue that “subjecting public school districts to
financial liabilities does not come without significant drawbacks and doing so
could impede the ability of local governments (and the state) to provide free
public education.” (Brennon B., supra, 13 Cal.5th at p. 695; id. at p. 696
[citing Wells, at pp. 1195-1196 [legislature is “aware of stringent revenue,
budget, and appropriations limitations” on public school districts].) The
Court also noted school districts “remain subject to other antidiscrimination
laws.” (Brennon B. at p. 695.) Significantly, the Court recognized “those laws
may not afford the same remedies” as the Unruh Act, but “ ‘that circumstance
cannot justify extending the scope of the [Unruh Act] further than its
language reasonably will bear.’ ” (Id. at pp. 695-696.) Here, too, Civil Code
section 51.9 does not extend to situations unsupported by the statute’s text
and purpose.
4. Plaintiffs’ Liability Theories
Plaintiffs maintain the District’s “liability is clear under three distinct
avenues”: it is (1) “statutorily liable for its supervisory employees’ failure to
address and correct Chatham’s sexual harassment,” citing Government Code
sections 815.2 and 820 and C.A., supra, 53 Cal.4th 861; (2) “responsible for
ratifying Chatham’s misconduct,” citing Tenet, supra, 169 Cal.App.4th 1094,
and (3) “liable for its employees’ actions in denying, or aiding, conspiring or
inciting the denial of Plaintiffs’ rights under section 51.9,” citing Civil Code
section 52 and asserting it “contains its own source of liability.”
None of these arguments support the relief Plaintiffs seek to pursue—
liability under Civil Code section 51.9 and attorney fees under section 52.
43
a. Vicarious Liability
First, Plaintiffs contend Government Code sections 815.2 and 820
“impose[ ] upon public entities vicarious liability for the tortious acts and
omissions of their administrative or supervisory personnel,” citing C.A.,
supra, 53 Cal.4th 861. This argument does not support liability under Civil
Code section 51.9 or remedies under Civil Code section 52.
Government Code section 815, part of the Tort Claims Act, “establishes
that public entity tort liability is exclusively statutory.” (C.A., supra, 53
Cal.4th at p. 868.) “ ‘[T]he general rule is that an employee of a public entity
is liable for his torts to the same extent as a private person ([Gov. Code,]
§ 820, subd. (a)) and the public entity is vicariously liable for any injury
which its employee causes ([Gov. Code,] § 815.2, subd. (a)) to the same extent
as a private employer ([Gov. Code,] § 815, subd. (b)).’ ” (C.A., at p. 868.)
In C.A., the plaintiff sued his public school district and guidance
counselor based on alleged sexual harassment and abuse by the counselor,
the Court of Appeal affirmed the district’s dismissal following demurrer, and
the California Supreme Court reversed. (C.A., supra, 53 Cal.4th at p. 865.)
The Court held allegations that the “administrators and employees knew or
should have known of [the counselor’s] dangerous propensities, but
nevertheless hired, retained and failed to properly supervise her” could
“make the District liable under a vicarious liability theory encompassed by
[Government Code] section 815.2.” (Id. at p. 875.) But C.A. did not address
Civil Code section 51.9, and does not support public school district liability
under it. (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343 [“A decision,
of course, does not stand for a proposition not considered by the court”].) The
Court also recognized diversion of school funds remained a valid concern.
(C.A., at p. 878 [concerns over vicarious liability for teacher sexual
44
misconduct noted in John R., supra, 48 Cal.3d at p. 451, including “ ‘the
diversion of needed funds . . . to cover claims,’ ” were “still valid”].) The other
authorities cited by Plaintiffs do not address Civil Code section 51.9, either.
(See Nicole M. v. Martinez Unified Sch. Dist. (N.D. Cal. 1997) 964 F.Supp.
1369, 1388-1389 (Nicole M.) [school administrators could be sued under
Unruh Act for failing to remedy peer sexual harassment]; Ed. Code, §§ 220,
230.)
b. Ratification
Next, Plaintiffs contend “[p]rinciples of ratification apply to a [Civil
Code] section 51.9 cause of action,” citing Tenet, supra, 169 Cal.App.4th at
page 1111. They further contend these “principles also apply against public
entities,” citing City of Los Angeles v. Superior Court (1973) 33 Cal.App.3d
778, 782-783 (City of Los Angeles). These contentions lack merit.
Although Tenet did conclude plaintiffs could proceed on a ratification
theory under Civil Code section 51.9, the case involved a private employer, as
Plaintiffs impliedly acknowledge. (Tenet, supra, 169 Cal.App.4th at p. 1097,
1099-1100 [reversing order sustaining private hospital’s demurrer to putative
class action without leave to amend, in action claiming sexual molestation by
certified nursing assistant; hospital allegedly destroyed records to conceal
abuse and hid information so employee could keep working].) Thus, we also
reject Plaintiffs’ claim that the trial court lacked “any substantive
explanation for failing to apply” the Tenet case.
City of Los Angeles did involve a public entity defendant, but did not
address Civil Code section 51.9 or ratification. There, a city sought writ relief
from a discovery order in a civil suit alleging police battery. (City of Los
Angeles, supra, 33 Cal.App.3d at pp. 780-782.) The Court of Appeal denied
relief in part, noting the city could be liable for “willfully continuing to
45
employ an individual of known violent propensities” and “negligent failure to
adequately supervise its employees.” (Id. at pp. 782-784.) At most, the case
stands for the proposition that a plaintiff can pursue negligent retention and
supervision theories against public entities. Baptist v. Robinson (2006) 143
Cal.App.4th 151, also cited by Plaintiffs here, did not involve Civil Code
section 51.9 or a public entity, and is inapposite. (Id. at p. 169 [although
“failure to discharge an employee who has committed misconduct may be
evidence of ratification,” winery did not ratify conduct of driver who injured
motorcyclist while transporting grapes for his own use].)15
c. Civil Code section 52
Finally, Plaintiffs contend Civil Code section 52, subdivision (b)
“contains its own source of liability for anyone who affirmatively ‘denies’, or
who ‘aids, incites, or conspires in’ the denial of, rights attendant to sexual
harassment.” This contention lacks merit, too.
We begin with the statutory text, which states: “Whoever denies the
right provided by [Civil Code] Section 51.7 or 51.9, or aids, incites, or
conspires in that denial, is liable” for identified remedies. (Civ. Code, § 52,
subd. (b).) Plaintiffs suggest the term “[w]hoever” is sufficient to impose
liability, whether or not there is liability under Civil Code section 51.9. But
we may not view statutory language “in isolation.” (Monterey, supra, 62
Cal.4th at p. 699; Pineda, supra, 51 Cal.4th at pp. 530-531 [courts construe
statutory text “in light of the statute as a whole”].) The statute’s plain
language requires predicate liability under Civil Code section 51.9 (or Civ.
Code, § 51.7, if applicable).
15 Plaintiffs contend the trial court improperly decided the “factual issue”
of ratification at the pleading stage. The court determined the District could
not be liable as a matter of law.
46
Accordingly, the California Supreme Court has described Civil Code
section 52 as an “ ‘enforcement mechanism for [Civil Code] section 51 and
other provisions of law,’ ” and courts have interpreted these provisions
consistently. (Munson, supra, 46 Cal.4th at pp. 667-668; cf., e.g., id. at p. 667
[“[Civil Code] section 51 has always provided substantive protection against
invidious discrimination in public accommodations, without specifying
remedies, and [Civil Code] section 52 has always provided remedies”];
Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1452 [“ ‘the Ralph Act
[Civ. Code, § 51.7] and the Unruh Act . . . share the same remedy statute,
Civ. Code, § 52’ ”]; cf. Doran v. North State Grocery, Inc. (2006) 137
Cal.App.4th 484, 489 [“plain language” of Civ. Code, § 52, subd. (a) “makes
clear that only those who deny rights guaranteed by [Civ. Code] section 51,
51.5, or 51.6 are liable for attorney fees”].)
Plaintiffs identify no California authority or legislative history that
supports their view that Civil Code section 52 provides an independent
source of liability. Their reliance on Nicole M., supra, 964 F.Supp. 1369, is
misplaced, both because we are not bound by lower federal courts (Upshaw v.
Superior Court (2018) 22 Cal.App.5th 489, 503) and because the case is
inapposite. There, the district court held a student could pursue claims for
peer sexual harassment under the Unruh Act and Civil Code section 51.5
against a public school district, and the superintendent and principal, noting
the term “[w]hoever” in the applicable section of Civil Code section 52
(subd. (a)). (Nicole M., at pp. 1371-1372, 1388-1390; see id. at p. 1388
[“[B]ecause [Civ. Code, §] 52, subd. (a) allows plaintiffs to recover damages
against ‘[w]hoever . . . makes any discrimination . . . contrary to [Civil Code]
Section 51 or 51.5,’ plaintiff may bring a claim against [the principal and
superintendent] for violations of those sections.”].) Setting aside the court’s
47
determination that the school district was subject to the Unruh Act, (which
Brennon B. has now made clear was incorrect), the Nicole M. court’s point
appeared to be that the plaintiff could recover from the individuals—not that
Civil Code section 52 was its own source of liability.16 And even if Plaintiffs
did pursue a claim under Civil Code section 52, subdivision (b) against the
administrators for “aid[ing], incit[ing] or conspir[ing]” sexual harassment,
they do not establish this would support liability against the District. (Cf.
Munson, supra, 46 Cal.4th at p. 671 [noting Court has read “denies, aids or
incites” language in Civ. Code, § 52, subd. (a), as “connoting intentional
discrimination”]; John R., supra, 48 Cal.3d at p. 452.)
d. Ability To Amend
Because the District is not liable under Civil Code section 51.9, and
Plaintiffs have not shown they can recover against the District under Civil
Code section 52, subdivision (b), they could not amend their complaints to
permit relief under these statutes. (Abatti, supra, 52 Cal.App.5th at p. 295.)
We observe Plaintiffs do not demonstrate prejudice, regardless. They
argue the “exclusion of sexual harassment claims” limited their ability to
show Chatham “creat[ed] an inappropriate environment”; foreclosed a
ratification theory that could have avoided allocation of fault; and prevented
them from obtaining attorney fees. Even if Plaintiffs could not pursue sexual
16 Sullivan v. Vallejo City Unified School District (E.D. Cal. 1990) 731
F.Supp. 947, also cited by Plaintiffs, is inapposite too. (Id. at p. 952 [holding
school districts are subject to Unruh Act, based on its legislative history; not
addressing Civ. Code, §§ 51.9, 52].) (Cf. Brennon B., supra, 13 Cal.5th at
p. 684 [disagreeing with Sullivan, and describing as unpersuasive the “body
of cases that rely on [Sullivan] cursorily to conclude that public school
districts are business establishments for purposes of the [Unruh] Act,”
including Nicole M.)
48
harassment claims under Civil Code section 51.9, they were still able to offer
evidence that Chatham regularly acted in an inappropriate, sexualized
manner, and prevailed on negligence claims based on this conduct. Second,
on ratification, Plaintiffs argue “[a]llocation of noneconomic damages is not
available in vicarious liability situations,” citing a vicarious liability case,
Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 629-631. They do
not establish ratification is unavailable outside the Civil Code section 51.9
context, or that ratification is equivalent to vicarious liability for allocation
purposes. Finally, as for fees, Plaintiffs could have named Chatham as a
defendant, enabling them to pursue both Civil Code section 51.9 claims, and
the related attorney fees.
D. Plaintiffs Do Not Establish Evidentiary Error
Plaintiffs assert the trial court erred by limiting evidence regarding
Chatham’s friendship with Torres and his internet bookmarks, and by
purportedly excluding testimony by a therapist and football coach. They do
not establish any prejudicial abuse of discretion.
1. Applicable Law
“ ‘A trial court’s exercise of discretion in admitting or excluding
evidence is reviewable for abuse [citation] and will not be disturbed except on
a showing the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest miscarriage of
justice.’ ” (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) It is the
appellant’s “ ‘burden to establish such an abuse, which we will find only if the
trial court’s order exceeds the bounds of reason.’ ” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 852.) An “ ‘erroneous evidentiary
ruling requires reversal only if “there is a reasonable probability that a result
more favorable to the appealing party would have been reached in the
49
absence of the error.” ’ ” (Id. at p. 857; Cassim v. Allstate Ins. Co. (2004) 33
Cal.4th 780, 800 (Cassim) [probability here means “ ‘a reasonable chance,
more than an abstract possibility’ ”].)
2. Friendship Between Chatham and Torres
a. Additional Facts
During depositions, Plaintiffs’ counsel asked about Chatham’s
relationship with Torres. Chatham himself said Torres was a good friend,
they would eat together, and she would watch his local theater performances.
Librarian Lynn Kraszewski said Chatham and Torres “had a friendship,” and
noted one time that she, Chatham, and Torres visited Chatham’s new
apartment and then had dinner at Torres’s home. Teacher Merryl Nelson
said Chatham and Torres were “collegial,” and when asked if he had Torres’s
ear, she said “I felt he did . . . in relation to a few instances . . . that had to do
with me.” Teacher Joni Mah said Torres “liked” Chatham, but would not
“call it a close relationship” and was not aware of any special treatment,
while a campus supervisor assumed they were friends, because they “talk[ed]
a lot.”
The District moved in limine to exclude testimony that Chatham and
Torres were friends, as irrelevant, speculative, and confusing. Plaintiffs
opposed, citing the deposition testimony and Facebook messages from before
Torres died in 2016, in which Chatham proposed getting brunch and said, “I
miss you tons,” and Torres replied, “That sounds like a great idea! . . . Miss
you, too!” At the motion hearing, Plaintiffs’ counsel argued Sonnich, the
former head of human resources, would testify personnel were supposed to
report, not investigate, because friendships were common and this evidence
would show Chatham and Torres had one. The trial court tentatively
excluded the evidence, stating they would see “how [Sonnich] testifies” and
50
“let the evidence flow.” The court also granted Plaintiffs’ motion to exclude
evidence of Torres’s character.
During trial, Plaintiffs’ counsel again sought to introduce relationship
evidence, contending the District was suggesting in witness examination that
the school would never “not respond . . . appropriate[ly]” to complaints, in
part due to Torres’s character. The trial court denied the request, but told
counsel, “You will probably be given a little leeway . . . when you have
[Chatham] on the stand and you talk to him about his relationship with
[Torres].” Chatham did not testify at trial.
Sonnich subsequently testified administrators were supposed to report,
not investigate, due in part to the collegiality of the environment and the
desire for a uniform process. Plaintiffs’ standard of care expert, Robert
Fraisse, testified there should have been an independent investigation of the
2011 email, also citing collegiality.
When Plaintiffs called Kraszewski, the trial court ruled they could ask
about meals and going to each other’s houses, but could not ask if Chatham
and Torres had a “special relationship,” explaining it “would be speculation,
but more important is that [Torres] would not be here . . . .” Plaintiffs asked
Kraszewski if she, Chatham, and Torres ever socialized together outside of
school, and she responded “[n]ot very often, but yes.” She described the time
that Torres invited her and Chatham for dinner, and said this was “more to
see” Chatham’s new apartment and they went to Torres’s house for dinner
afterwards.
During closing arguments, Plaintiffs’ counsel argued Chatham should
have been reported for District investigation; cited Sonnich, Fraisse, and
Kraszewski’s testimony; and asserted Kraszewski said “Torres wanted to be
[Chatham’s] friend” and “[t]hat can cloud . . . judgment.”
51
b. Analysis
Plaintiffs do not establish any abuse of discretion. The trial court
carefully and repeatedly considered whether to permit evidence about
Chatham and Torres’s friendship, and ruled Plaintiffs could elicit certain
testimony from Kraszewski (which they did) and Chatham (which they did
not do). The court’s decision to preclude Plaintiffs from having Kraszewski
speculate about the nature of the relationship was sound, and Plaintiffs do
not show they made any further effort to introduce the Facebook messages
after the motion in limine hearing.
Plaintiffs argue they sought the relationship evidence to “explain the
lack of adequate response” by school administrators to the 2011 email report
about Chatham. In other words, they aimed to suggest Torres handled the
issue herself, rather than reporting it for District investigation, due to
favoritism. But Torres was deceased, and the only deponent who even
potentially suggested she favored Chatham was teacher Nelson—who said
Chatham had Torres’s ear in situations relating to Nelson. The trial court
could reasonably limit such speculation about Torres’s motives. (People v.
Babbitt (1988) 45 Cal.3d 660, 682 [“ ‘The inference which defendant sought to
have drawn . . . is clearly speculative, and evidence which produces only
speculative inferences is irrelevant evidence.’ ”].) Plaintiffs were still able to
elicit objective facts—Torres did not report Chatham for District
investigation, and did visit his apartment and had dinner with him—and to
use this evidence in closing arguments to contend her judgment could have
been clouded by her desire to be friends with Chatham.
Plaintiffs also do not establish they were prejudiced by the limitation
on the friendship evidence. They contend it “very reasonably accounts for the
low allocation of only 40% fault to the District,” and was especially prejudicial
52
because the District was able to emphasize Torres’s concern for student
safety and accolades received by her and the school. These contentions lack
merit. It was undisputed that Torres did not report Chatham for
investigation, and Plaintiffs already showed she spent time with Chatham
outside of school and argued her judgment was clouded as to him. Plaintiffs
do not show that additional evidence about Torres and Chatham’s
relationship would have materially enhanced that showing, or impacted the
fault allocation at all.
3. Internet Bookmarks
a. Additional Facts
A laboratory ran a forensic search on Chatham’s District laptop, and
San Diego Police Detective V. received a screenshot of his website bookmarks.
The screenshot included around 15 pornographic bookmarks, including
multiple sites with the terms “teen” and/or “boy.”
When Plaintiffs’ counsel examined Detective V. about the bookmarks,
the District objected on various grounds, and the trial court addressed the
scope of the testimony. The court asked Plaintiffs’ counsel if he wanted “all
this in,” and counsel said, “[A] sampling . . . is fine. I don’t need to have every
site.” Counsel explained that if the District had done the “investigation
[they] . . . should have done,” it likely would have obtained Chatham’s
computer to see what was going on. The court stated it had an Evidence Code
section 352 concern about the term “boy,” explaining “If we start getting into
child porn . . . . Ballgame over.” The court asked Plaintiffs’ counsel to
identify sites and avoid the term “boy”; counsel suggested “Gay Teen Love,”
“Welcome to Free Gay Pictures,” Pornhost.com, and a site with 9,000 free gay
photos, and also agreed to the trial court’s suggestion of “Gay Hotel in
Amsterdam.” Detective V. resumed testifying, and Plaintiffs’ counsel said,
53
“We’re not going to go through everything . . . . Just tell us a . . . few of the
bookmarked sites on there.” Detective V. identified the five sites discussed by
counsel and the court.
Both psychiatric experts addressed grooming (an issue on which
Plaintiffs believe the bookmark evidence is relevant, as we discuss post).
Dr. Colarusso defined grooming as an attempt to gain confidence, so one can
sexually abuse a child. He said that this was a “situation of group grooming”
in front of other teenagers. Dr. Addario said grooming involves a perpetrator
“singling out one person” for “special treatment,” and he had not had a case
involving group grooming. Sonnich, former head of human resources, also
testified about grooming, and said the “literature on this is that grooming is
an individual with an individual.”
Fraisse, Plaintiffs’ standard of care expert, testified that if the District
found pornography on Chatham’s computer in 2010 or 2011, it “would have
been a reason for termination.” During closing arguments, Plaintiffs noted
the pornographic bookmarks, including “Gay Teen Love,” contended that they
would have been discovered if an investigation was conducted in 2011, and
argued there was group grooming.
b. Analysis
Plaintiffs argue the trial court erroneously “refused to allow the
document showing the pornographic websites.” We reject this argument.
As a preliminary matter, it is not clear Plaintiffs objected to the trial
court’s treatment of the bookmarks. Their counsel told the trial court a
“sampling” was adequate and identified bookmarks at the court’s request
that did not include the word “boy.” On appeal, Plaintiffs indicate Exhibit 35
had the full bookmark list and the court excluded it, but the record pages
they cite do not address an Exhibit 35. (See Shaw v. County of Santa Cruz
54
(2008) 170 Cal.App.4th 229, 282 [appellants “fail to point to any place in the
record where they successfully preserved” claim for “erroneous exclusion of
evidence,” precluding consideration on appeal].)17
Even if Plaintiffs preserved their argument, they do not establish any
abuse of discretion. Under Evidence Code section 352, a trial court “may
exclude evidence if its probative value is substantially outweighed by the
probability” that it will “create substantial danger of undue prejudice,”
among other grounds. The court reasonably excluded bookmarks containing
the word “boy,” because it implicates child pornography and could unduly
prejudice the jury. (Cf. People v. Holford (2012) 203 Cal.App.4th 155, 171
[“[C]hild pornography is not pretty and will always be unpleasant. Trial
courts must be afforded equally broad discretion in ruling on [Evid. Code, §]
352 objections in this context”].) The court could also impliedly find that
supplemental testimony (e.g. that Chatham was not charged with child
pornography) would not mitigate this risk. The court still permitted
Plaintiffs to identify multiple sites for Detective V’s testimony, including
“Gay Teen Love,” which reflected Chatham’s sexual interest in young men.
Plaintiffs do not establish otherwise. First, they argue the “presence of
so many of these websites as bookmarks” shows the District failed to monitor
Chatham’s computer after the 2011 email, and their discovery at the time
would have triggered termination. But there is no dispute the District did
not review his computer before 2014, any pornographic bookmarks would
suffice to illustrate that, and Plaintiffs were able to elicit testimony about five
of them (and note this was not “everything”).
17 The exhibit lodgment in the record on appeal contains the bookmark
list and identifies it as a nonadmitted page in Exhibit 2 (the police report),
but Plaintiffs do not identify any ruling in that regard, either.
55
Second, Plaintiffs argue that limiting the bookmark evidence bolstered
the District’s purported positions that Chatham’s conduct was not grooming,
but rather “unprofessional behavior,” and that Plaintiffs participated in some
of Chatham’s conduct. Even setting aside Plaintiffs’ dubious characterization
of the District’s positions, their point lacks merit. If Plaintiffs felt that
showing Chatham had sexual interest in young males was necessary to show
he engaged in group grooming and preyed on Plaintiffs (and to dispute
contrary arguments by the District), that still does not mean they needed the
full list of bookmarks to do so. We also reject Plaintiffs’ claim that the
inclusion of a gay travel site rendered the evidence “a non sequitur that
Chatham was gay.” Their counsel agreed to include this site and regardless,
the “Gay Teen Love” site was evidence that Chatham was interested in young
men specifically.
Finally, Plaintiffs do not establish prejudice. They contend the
limitation of the bookmark evidence “had a reasonable likelihood of lowering
the jury’s allocation of fault to the District.” We do not see how. Plaintiffs
were able to have Detective V. testify about five bookmarks, including “Gay
Teen Love,” and during closing arguments, they referenced that testimony
and were able to address the issues they focus on here (e.g., Chatham would
have been terminated if the bookmarks had been discovered; grooming can
occur on a group basis). Plaintiffs do not establish that having all 15
bookmarks before the jury, instead of five, would have made any difference.
4. H.R.’s Treating Psychologist
a. Additional Facts
Trial initially was set for February 2018, and expert depositions were
completed the previous month.
56
In April or May 2018, H.R. began seeing Dr. Morgan Shaw, a treating
psychologist at Kaiser Permanente. In mid-May 2018, Plaintiffs sent the
District a “Supplemental Designation of Expert Witnesses” that listed
Dr. Shaw as one of H.R.’s “percipient treating physicians who may be asked
opinion testimony.” The transmittal email indicated they would forward
Dr. Shaw’s records. The District’s counsel responded, stating the District
objected; discovery was closed; and this would prejudice the District and
require further discovery.
In late May 2018, the trial court issued an order continuing the trial to
October 2018 and stating, “[n]o further discovery.”
In September 2018, Plaintiffs unsuccessfully moved to augment their
expert witness designation; only the denial order is in the record.
The District moved in limine to bar Plaintiffs from offering testimony
from Dr. Shaw. The District contended it had been unable to depose her, and
its experts were unable to review the medical records. Plaintiffs opposed the
motion, arguing in part that although the court previously denied their
motion to “designate Dr. Shaw as a non-retained expert,” the current
question was “whether [she] should be allowed to testify as a percipient
witness.” They also argued the District “refused to take [her] deposition . . .
when it was offered on multiple occasions.” The counsel declaration they
cited in support of their opposition does not appear to be in the record. At the
hearing, the trial court ruled H.R. could testify Dr. Shaw treated him, but she
could not testify. When the District’s counsel asked for clarification that H.R.
was the only one who could testify, the court said his mother could “say [she]
took him to treatment” and confirmed Plaintiffs’ expert psychiatrist,
Dr. Colarusso, could not change or supplement his opinion.
57
Mid-trial, the court expressed concern about the speed of proceedings
and asked, “Is Dr. Shaw going to be called?” The record does not reflect any
response by counsel.
While conducting H.R.’s direct examination, Plaintiffs’ counsel asked
about counseling he received in high school and in 2015. He said he attended
five to seven sessions his sophomore year due to family issues and another
five to seven his junior year after his grades slipped, and that the latter
sessions “did help somewhat.” He said he sought out counseling at Kaiser
again in 2015 because he was having “tough mental times” and the Chatham
events were “get[ting] to” him. Plaintiffs’ counsel did not ask about 2018 or
Dr. Shaw. They also examined H.R.’s parents about his counseling sessions,
and also did not ask about 2018 or Dr. Shaw.
During cross examination, the District’s counsel asked H.R. if he
recalled the names of health care providers between October 2015 and April
2018. He named Dr. Shaw. Counsel asked, “[W]hen did you first start to see
Ms. Shaw?” and H.R. said, “sometime around the beginning of this year,”
confirming he meant 2018. H.R. acknowledged he saw the counselor in 2015
the day before his deposition. On redirect, Plaintiffs’ counsel asked H.R. how
long he had seen Dr. Shaw, and he said, “probably [up until the] beginning of
September.”
The District’s expert, Dr. Addario, testified H.R. had a history of
noncompliance with treatment, and opined the “chances are fair to
guarded if he’ll follow through with treatment.” He further testified, as to all
Plaintiffs, that he did not know if he could “accept that we have three people
who don’t go to any treatment, yet they’re having all these problems.” As
noted, Plaintiffs’ expert, Dr. Colarusso, believed all three Plaintiffs needed
years of therapy.
58
In closing arguments, Plaintiffs’ counsel noted H.R. had “been seeing
Dr. Shaw since early 2018,” and argued the “therapy with Dr. Shaw ha[d]
helped [H.R.] a lot,” and he “hop[ed] . . . to get better mentally.” The
District’s counsel argued the jury should consider the lack of counseling in
evaluating the damages evidence. For H.R., counsel argued he “rarely went
to counseling,” went after his lawsuit only before the deposition, and was not
going now, and said, “So will he go in the future? We don’t know. We can
judge past conduct. We know what he’s done so far.”
b. Analysis
Plaintiffs do not show the trial court abused its discretion. After
unsuccessfully trying to add Dr. Shaw to their expert witness designation,
they opposed the District’s motion to exclude her, in part because she could
still testify as a percipient witness. Put differently, she could testify about
the treatment H.R. received. The trial court could reasonably conclude this
topic could be addressed by having H.R. testify about his treatment, which
avoided having a witness who was identified after discovery closed (whether
the delay was justified or not). It was Plaintiffs who then chose to address
the topic in only a limited manner. They did not ask H.R. about Dr. Shaw
until redirect examination, and then asked only when counseling ended—not
how many sessions he attended or whether they were helpful, testimony they
elicited about other counseling sessions. They also did not ask if he planned
to resume treatment in the future. And there is no indication they renewed
their request to have Dr. Shaw testify, even after the trial court asked mid-
trial if she would be testifying.
Plaintiffs’ arguments lack merit. They contend they offered Dr. Shaw
for deposition and, because the District did not take it, the District was able
to suggest H.R. was malingering or unlikely to seek treatment. Plaintiffs’
59
appendix omits the attorney declaration that purportedly shows the
deposition offers were made. (County of Sacramento v. Rawat (2021) 65
Cal.App.5th 858, 861 [“ ‘[W]e may disregard factual contentions . . . based on
information that is outside the record.’ ”].) In any event, we assume that to
the extent Plaintiffs described discovery proceedings for the trial court, the
court considered them while ruling on the motion in limine, and it could still
reasonably conclude that having H.R. testify, not Dr. Shaw, was the fair
resolution. (Evid. Code, § 664 [“It is presumed that official duty has been
regularly performed.”].)
Plaintiffs do not establish prejudice, either. They contend that
Dr. Shaw’s testimony was necessary, and H.R.’s damages were unjustifiably
low as a result of its exclusion. We are not persuaded. Plaintiffs still
presented evidence that H.R. received counseling multiple times in the past
(from H.R. and his family), and would benefit from years of counseling in the
future (from Plaintiffs’ psychiatric expert, Dr. Colarusso). That showing was
not rendered moot simply because the District offered expert testimony and
argument that questioned if H.R. would seek treatment. We also reject
Plaintiffs’ assertion that “[t]he key piece of rebuttal evidence” for H.R. was
“his 10 visits to Dr. Shaw in April and May of 2018, documented in Exhibit
127 [Dr. Shaw’s treating notes].” H.R. told the jury he saw Dr. Shaw from
the “beginning” of 2018 through September 2018, and Plaintiffs cited the
“early 2018” timeframe in closing arguments, permitting the jury to infer a
long treatment period and potentially many visits. The treating notes would
60
have shown he saw her for around six weeks, and a limited number of
times.18
5. M.L.’s College Football Coach
a. Additional Facts
M.L. played football during his second year at Grossmont Community
College. During a transcribed interview with Dr. Addario in 2017, M.L. told
him, “I played one full year of football. . . . I did pretty good in school because
I was playing football all year long.”
In opening statements, Plaintiffs’ counsel told the jury that at the end
of M.L.’s college football season, “with Division 1 scouts there, and having the
best game of his . . . career[,] he just walked off the field.”
M.L. testified he did not get into a Division 1 or 2 program, because he
did not have the grades, and everything he worked for was “washed [away],
gone, pointless.” He enrolled at Grossmont to play football and try to transfer
to another program. He did not play his first year due to an injury, and said
“it started to get a little more rough,” as he “lost [his] outlet.” During his
second year, the “love of the sport” was leaving him. He said his last game
was week eight; it was his “best game . . . all year,” with scouts in the stands;
and he “walked off,” “[d]idn’t finish the season,” and “[didn’t] know why.” On
cross-examination, the District’s counsel asked if M.L. told Dr. Addario he
played “all year,” and M.L. recalled saying he played “that football year.”
After counsel read the interview transcript, M.L. acknowledged he told
Dr. Addario, “I played the year.” On redirect, M.L. confirmed he walked off
18 Proposed Exhibit 127, which the parties lodged here, reflects five visits,
and two “no show[s].” A summary invoice has 10 entries, with five entries for
the visits and five entries for payment dates.
61
the field with “about two” games left, it was his “last game,” and he “[didn’t]
know what happened.”
M.L.’s father testified M.L. had a “couple of really amazing” college
football games, but the “last two games of the season he didn’t even show up
for his own games.”
Dr. Colarusso opined M.L.’s “self-esteem was built around his
reputation as a football player,” he had been “outed . . . having had
homosexual experiences with a teacher,” and feared the “publicity related to
sports.” He said that despite M.L. initially excelling at football after the
Chatham events, that did not continue into junior college, noting he walked
off the field and did not finish the year. On cross-examination, he
acknowledged the walk-off incident was not in his notes, but recalled the
information came from M.L. Dr. Colarusso also testified, “We talked some
about his struggle with grades in high school. He said, quote, I lost
everything, meaning, self-esteem, his life, his football career. Quote, I was
depressed. No one would understand. He didn’t open up to his parents. He
felt like less of a man.”
Plaintiffs’ counsel asked to call M.L.’s college football coach. The trial
court said, “Don’t call the football coach. It’s not the main issue.” Counsel
asked if he could call him as a rebuttal witness, and the court stated, “You
can always . . . if it’s appropriate, call somebody on rebuttal.” After the
District’s case, the court said the coach was “out,” but let Plaintiffs’ counsel
make an offer of proof. Counsel argued the District made Plaintiffs’
“credibility . . . a major issue” and cross-examined M.L. on his statement to
Dr. Addario; there was “jury appeal” in that M.L. “walked off the field and
never went back to his sport, his passion”; and the coach “can corroborate
that.” The court ruled the football coach could not testify.
62
During closing arguments, Plaintiffs’ counsel reiterated M.L. walked off
the field. The District’s counsel argued there was no “credible evidence to
that effect,” citing the interview with Dr. Addario. Counsel further argued,
“The football career [M.L.] thought he was going to have . . . did not
happen . . . when he went to junior college” and “that’s what shattered” him.
b. Analysis
Even if the football coach were a proper rebuttal witness (which the
District disputes), Plaintiffs do not establish they were prejudiced by his
exclusion. They argue, in substance, that the District questioned whether
M.L. left football because of Chatham’s abuse, in order to call his credibility
into question and reduce the jury’s damage award, and the coach’s exclusion
led to reduced damages. These arguments lack merit.
There was no dispute M.L. was a promising high school football player,
who left the sport after playing during one college season. But whether he
left the sport because of Chatham, and the circumstances under which he
left, are different issues. Plaintiffs do not establish the coach had any insight
as to the potentially significant issue: why he left football. Rather, the coach
could testify only about the comparatively minor detail of when and how M.L.
left the team. And there was already evidence before the jury on that issue.
Both M.L. and his father testified he did not finish the season; M.L. described
walking off the field; and he confirmed doing so, even after hearing the
interview transcript with Dr. Addario. Plaintiffs do not establish additional
testimony from the coach on this minor factual issue could have increased the
damage award. (Cf. Cassim, supra, 33 Cal.4th at p. 800 [must be “more than
an abstract possibility”].)
Plaintiffs’ focus on the District’s arguments is unavailing. To the
extent the District contended in closing arguments that M.L. left football for
63
reasons other than Chatham, this was supported by evidence unrelated to
any testimony the coach could provide. Although Dr. Colarusso suggested
M.L.’s departure from football was related to Chatham, he also noted M.L.
addressed his struggle with his grades. M.L. himself said that when he did
not get into a top football program due to his grades, he felt like everything
he worked for was “pointless.” And M.L. stated he “didn’t know” why he left
the field. Although the District did argue there was no credible evidence
M.L. left the field mid-game—an issue on which the coach could have
testified—Plaintiffs do not show that would have impacted damages, for the
reasons discussed above.
E. Plaintiffs Do Not Establish Instructional Error
Finally, Plaintiffs argue the trial court prejudicially limited damages,
by erroneously listing them in the oral CACI 406 instruction regarding
apportionment of fault. We conclude any error was harmless.
1. Additional Facts
The trial court and counsel addressed the verdict form and the CACI
406 jury instruction, which addresses fault apportionment among joint
tortfeasors. The District sought to include additional individuals on the
verdict form, including H.R.’s father, which Plaintiffs opposed. The court
ruled only the District and Chatham would be on the form, stating it “relies
on what joint tortfeasors are . . . .”
While giving the jury instructions, the trial court explained Plaintiffs
claimed the District negligently retained and supervised Chatham, resulting
in harm to them, and the District denied these claims. The court
subsequently instructed the jury with a modified version of CACI 406 and
erroneously included the term “plaintiffs” (italics added):
“[The District] claims . . . [Chatham] also contributed to
Plaintiffs’ harm. To succeed on this claim, [the District]
64
must prove both of the following: [¶] 1, that [Chatham]
was at fault; and [¶] 2, that the fault of [Chatham] was a
substantial factor in causing Plaintiffs’ harm. [¶] If you
find that the fault of more than one person, including
Plaintiffs, [the District], and [Chatham], was a substantial
factor in causing Plaintiffs’ harm you must decide how
much responsibility each has by assigning percentages of
responsibility to each person listed on the verdict form.
The percentages must total 100. [¶] You will make a
separate finding of plaintiffs’ total damages, if any. In
determining the amount of damages, you should not
consider any person’s assigned percentage of responsibility.
[¶] ‘Person’ can also mean an individual or a business
entity.”
The oral instruction matched the written jury instructions submitted before
trial. The court also instructed the jury under CACI 3900 to award damages
“caused by [the District’s] wrongful conduct.”
While addressing apportionment in closing arguments, the District’s
counsel argued as to H.R., “Don’t let [Chatham] get away. . . . He’s 100
percent at fault. . . . 99 percent, 98 percent. Definitely the vast majority of
fault.” For M.L., he said “don’t let [Chatham] get away” and that Chatham
was at fault a “hundred percent, 99 percent.” And, for K.M., he said, “[W]hen
you apportion fault, it’s [Chatham].”
After closing arguments, the trial court gave further instructions. The
court stated “[m]ost . . . instructions are typed,” but handwritten words might
be added, and the jurors should “treat all the words the same” and “[s]imply
accept the instructions in [their] final form.” The court also stated, “I will
give you verdict forms with answers you must follow.” The final written jury
instructions are not in the record. The verdict form is not in the record
either, but the judgment memorialized the verdict and reflects apportionment
to Chatham (60 percent) and the District (40 percent).
65
Plaintiffs moved for a new trial based in part on instructional error
regarding CACI 406, which the trial court denied. The court found it was
wrong to include plaintiffs in CACI 406, but this did not “infect[ ] the
whole . . . verdict.” The court further stated, “Clearly, there was no
comparative negligen[ce] . . . instruction. Clearly, the verdict form put it just
between [Chatham] and the [District].”
2. Applicable Law
“Instructional error in a civil case is not ground for reversal unless it is
probable the error prejudicially affected the verdict.” (Red Mountain, LLC v.
Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 359 (Red
Mountain); accord, Soule, supra, 8 Cal.4th at p. 580; Soule, at pp. 580-581
[factors for consideration include the state of the evidence, the effect of other
instructions and counsel’s arguments, and any indications by the jury it was
misled].) “We independently review claims of instructional error viewing the
evidence in the light most favorable to the appellant.” (Orichian v. BMW of
North America, LLC (2014) 226 Cal.App.4th 1322, 1333.)
3. Analysis
Plaintiffs do not establish they were prejudiced by the trial court’s
inclusion of the term “plaintiffs” in the oral CACI 406 instruction.
As an initial matter, Plaintiffs do not show the jury relied on the oral
instruction. “We presume that jurors are intelligent and capable of correctly
understanding, correlating, applying, and following the court’s instructions.”
(People v. Acosta (2014) 226 Cal.App.4th 108, 119 (Acosta).) “ ‘This
presumption includes the written instructions.’ ” (People v. Mills (2010) 48
Cal.4th 158, 200-201 (Mills).) “[A]s long as the court provides the jury with
the written instructions to take into the deliberation room, they govern in
any conflict with those delivered orally.” (People v. Osband (1996) 13 Cal.4th
66622, 717; see People v. Mungia (2008) 44 Cal.4th 1101, 1132 [“[W]hen
erroneous oral instructions are supplemented by correct written ones, we
assume the jury followed the written instructions, particularly when, as here,
the jury is instructed that the written version is controlling.”].)
Plaintiffs concede the final written instructions presumptively were
correct, but argue we should not assume the jury followed them. They state
the “presumption of regularity applies where the jury is instructed that the
written instructions control,” usually with CALJIC 17.45; other cases
involved minor errors; and the error here was “far from trivial . . . .”19 The
District maintains the trial court did indicate the written instructions
controlled, by telling the jury to “[s]imply accept the instructions in [their]
final form”; Plaintiffs disagree this was adequate. We need not resolve that
disagreement, because the error was trivial, as we explain next in concluding
there was no prejudice.
The rest of the instructions, the verdict form, and closing arguments all
made clear to the jury that fault should be assigned between Chatham and
the District. (See Soule, supra, 8 Cal.4th at pp. 580-581.) The rest of CACI
406 told the jury the District claimed Chatham also contributed to their
harm—not Plaintiffs themselves; to “assign[ ] percentages of responsibility to
each person listed on the verdict form”; and that the “percentages must total
100.” The jury was also told they would be given “verdict forms with answers
[they] must follow.” Chatham and the District presumably were the only
persons on the verdict form. During closing arguments, the District’s counsel
argued Chatham was 100 percent at fault (or close), and the jury should not
19 CALJIC 17.45 states in pertinent part, “You are to be governed only by
the instruction in its final wording.”
67
let Chatham “get away” with it. Counsel never stated Plaintiffs were any
percent at fault.
On this record, it would have been unreasonable for the jurors to view
the word “plaintiffs” in CACI 406 as anything besides a trivial misstatement
and we will not assume they did. (Acosta, supra, 226 Cal.App.4th at p. 119;
cf. Mills, supra, 48 Cal.4th at p. 200 [“verdicts are not undermined by the
mere fact the trial court misspoke”].) There is also nothing to suggest the
jury was confused. The jury’s assigned fault percentages, 60 percent to
Chatham and 40 percent to the District, added up to 100 percent, as
instructed. Plaintiffs also do not show the jury asked any questions during
deliberations. Accordingly, Plaintiffs do not establish they would have
obtained a larger apportionment to the District or higher damage award,
absent the error, and we will not reverse. (Red Mountain, supra, 143
Cal.App.4th at p. 359.)
Plaintiffs’ arguments do not compel a different result.
First, they argue that because the trial court gave the CACI 3900
instruction to award damages “caused by [the District’s] wrongful conduct,”
the jury “reduced ahead of time . . . damages . . . not caused” by the District
and “being told to apportion fault to Plaintiffs . . . would result in a double
deduction to Plaintiffs.” The trial court gave CACI 406 before CACI 3900;
mistakenly permitted, but did not require, apportionment of fault to
Plaintiffs; and expressly told the jury it would determine damages
“separately” and “should not consider” assigned responsibility. We must
assume the jury followed the instructions, not misunderstood or disregarded
them. (Acosta, supra, 226 Cal.App.4th at p. 119.)
Second, Plaintiffs argue the District’s trial strategy was to blame them
for “their participation [in] and failure to report” Chatham’s conduct, citing
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evidence and argument that they did not fear him and viewed his conduct as
a joke, did not report it at the time, and did not pursue counseling. Plaintiffs
then argue the oral CACI 406 instruction “likely resulted in one of three
scenarios”: the jury could have handwritten a percentage of fault for
Plaintiffs on the verdict form, which they concede did not happen; they could
have “assigned Plaintiffs a certain percentage of fault and . . . attributed it to
Chatham”; or they could have “reduced the overall damages already limited
to [District’s] misconduct by what they considered to be Plaintiffs’ individual
fault.” Plaintiffs assert the latter two are reasonably probable, so they have
shown prejudice. Not so. We already rejected a discount as inconsistent with
the jury instructions. Plaintiffs’ claim that the jury could assign fault to
Plaintiffs, but attribute it to Chatham, is both contrary to the instructions
and implausible. Ultimately, Plaintiffs disregard the likely scenario, that is
consistent with the instructions: the jury ignored the misstatement and
assigned fault and awarded damages based on their view of the District’s
culpability.20
II. The District’s Appeal From The Costs Orders
The District argues the trial court’s orders on costs should be reversed,
because the court erroneously ruled its section 998 offers were invalid. This
argument lacks merit.
A. Additional Facts
The District made the operative section 998 offer to each Plaintiff in
May 2018. The District offered $320,000 to H.R., $170,000 to K.M., and
$110,000 to M.L. Pertinent here, each offer included the following language:
20 Because Plaintiffs do not establish prejudicial error, we do not reach
the District’s further argument that Plaintiffs invited error by, inter alia, not
objecting to the oral instruction at the time.
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“Plaintiff . . . agrees that all parties will bear their own
costs and fees, and the parties will execute a settlement
and release providing that Plaintiff will satisfy all liens,
execute a Civil Code section 1542 waiver, and there will be
no admission of liability by [the District].”21
No settlement agreement or release agreement was attached to the offers.
Plaintiffs did not accept the offers.
As noted, the judgment required the District to pay $240,000 to H.R.,
$60,000 to K.M., and $69,000 to M.L. For each Plaintiff, the District’s section
998 offer exceeded the amount owed.
The District filed costs memoranda, and moved to strike Plaintiffs’
costs based in part on the section 998 offers. Plaintiffs moved to tax the
District’s costs, and opposed the motion to strike their costs, arguing the
section 998 offers were invalid.
The trial court granted Plaintiffs’ motions to tax costs, stating the
District “failed to meet its burden to show the . . . section 998 offers were
valid,” and citing Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81 (Ignacio) and
Sanford v. Rasnick (2016) 246 Cal.App.4th 1121 (Sanford). The court
granted the District’s motions to tax Plaintiffs’ costs in part, and on grounds
other than section 998. During the hearing, the court explained the offers
were “invalid because of the additional terms[,] in trying to value the
additional terms.”
21 Civil Code section 1542 states: “A general release does not extend to
claims that the creditor or releasing party does not know or suspect to exist
in his or her favor at the time of executing the release and that, if known by
him or her, would have materially affected his or her settlement with the
debtor or released party.”
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B. Applicable Law
Section 998 “establishes a procedure for shifting the costs upon a
party’s refusal to settle. If the party who prevailed at trial obtained a
judgment less favorable than a pretrial settlement offer submitted by the
other party, then the prevailing party may not recover its own postoffer costs
and, moreover, must pay its opponent’s postoffer costs, including, potentially,
expert witness costs.” (Ignacio, supra, 2 Cal.App.5th at p. 86; see Elite Show
Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268 (Staffpro)
[purpose of § 998 is to “encourage . . . settlement . . . , by punishing the party
who fails to accept a reasonable settlement offer from its opponent”].)
“The burden is on the offering party to demonstrate that the offer is
valid under section 998.” (Ignacio, supra, 2 Cal.App.5th at p. 86.) Whether a
section 998 offer is “sufficiently certain to be enforceable involves a question
of law . . . .” (Staffpro, supra, 119 Cal.App.4th at p. 268; Berg v. Darden
(2004) 120 Cal.App.4th 721, 727, 731 (Berg) [no “ ‘magic language’ ” is
necessary, but “offer must be sufficiently specific to permit the recipient
meaningfully to evaluate it”].) “We independently review whether a section
998 settlement offer was valid.” (Ignacio, at p. 86; Staffpro, at p. 268 [review
is de novo].)
C. Analysis
Each section 998 offer required the parties to “execute a settlement and
release providing that Plaintiff will satisfy all liens, execute a Civil Code
section 1542 waiver, and there will be no admission of liability,” but did not
attach a settlement and release agreement. Plaintiffs argue all three terms
rendered the offers invalid, which the District disputes. We conclude that
requiring execution of a settlement and release agreement, without attaching
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it or at least providing detailed terms, rendered the offers invalid, and do not
reach the other arguments advanced by the parties.
Sanford, cited by the trial court, is instructive. (Sanford, supra, 246
Cal.App.4th at pp. 1123-1124.) Defendants in a motorcycle accident case
made a section 998 offer that required “execution and transmittal of a written
settlement agreement and general release,” but neither the offer, nor counsel
communications, disclosed the agreement’s terms. After losing at trial, they
successfully moved to tax the plaintiffs’ costs, and the Court of Appeal
reversed. (Id. at pp. 1125, 1127-1128, 1130.) The court stated, “The case law
does allow for releases. [Citations.] [¶] But a release is not a settlement
agreement, and the [defendants] have cited no case, and we have found none,
holding that a valid . . . 998 offer can include a settlement agreement, let
alone one undescribed and unexplained.” (Id. at p. 1130.) The court
elaborated:
“[T]he terms of a settlement agreement can be the subject
of much negotiation. And the terms can be problematical.
For example, settlement agreements typically contain a
waiver of all claims ‘known and unknown,’ a provision that
has been held to invalidate a . . . 998 offer.’ [Citations.]
[¶] . . . [¶] [A]nd as every lawyer who has settled a case will
appreciate, the issue as to . . . section 1542 in a release can
be the subject of much discussion.” (Sanford, supra, 246
Cal.App.4th at p. 1131.)
The court agreed with the plaintiff that because the agreement was “not
described or revealed,” he was “ ‘left to guess at what terms [the offerors]
might insist upon . . . .’ ” (Sanford, supra, 246 Cal.App.4th at p. 1131; id. at
p. 1132 [“ ‘Disputes would erupt and become routine over what offerors can
and cannot place into these jack-in-the-box settlement agreements hidden in
their section 998 offers.’ ”].)
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The District’s section 998 offers are invalid for the same reasons as in
Sanford. They required the Plaintiffs to execute a settlement agreement and
release, but did not attach the written agreement or describe the terms in
any meaningful detail. This left Plaintiffs “to guess at what terms” the
District might require. (Sanford, supra, 246 Cal.App.4th at p. 1131; compare
Auburn Woods I Homeowners Assn. v. State Farm General Ins. Co. (2020) 56
Cal.App.5th 717, 727 (Auburn) [“Unlike in the Sanford case, here the
proposed settlement agreement was attached to [defendants’] section 998
offer, and thus [the plaintiffs were] not required to guess about the terms and
conditions.”].) Plaintiffs identify potential terms like tax treatment and non-
disparagement. The District’s response—that “the terms are right there” and
“[t]here is nothing to add”—is not compelling. If there was nothing to add,
there was no need to require “execution of a settlement and release.”
Nor, as the District claims, is this deficiency mitigated by the offers’
broad description of three terms (i.e., lien satisfaction and Civil Code section
1542 waiver by Plaintiffs, nonadmission of liability by the District). As the
Sanford court observed, settlement agreement terms “can be the subject of
much negotiation”—including terms regarding liens and Civil Code section
1542. (Sanford, supra, 246 Cal.App.4th at p. 1131 [settlement agreement
terms “can, and frequently do, implicate the protection of lienholders”]; ibid.
[“the issue as to . . . [Civ. Code, §] 1542 in a release can be the subject of much
discussion”].) The District maintains a section 998 offer can require
satisfaction of liens, citing Toste v. CalPortland Construction (2016) 245
Cal.App.4th 362, 374. But that is not what the District’s offers do. Rather,
they require a settlement that addresses liens, which can involve issues
warranting further negotiations (e.g. lien treatment after default). Toste did
not involve a settlement agreement, and Sanford confirms that once an
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agreement is required, the details of issues like liens must be addressed.
That the Sanford offer did not address liens at all does not render its point
inapplicable, as the District contends. (Sanford, at p. 1125.)22
The District belatedly offers two more points on reply, which also lack
merit. First, it argues an “offeree may seek clarification or negotiate the
terms of an unclear section 998 offer,” citing Berg, supra, 120 Cal.App.4th
721. (Id. at pp. 730-731 [determining § 998 offer was sufficiently specific, but
noting that if offeree is “uncertain about some aspect of the offer,” he is “free
to explore those matters with the offeror, or even to make
counterproposals”].) That an offeree has these options does not absolve an
offeror from providing a clear, valid offer. Second, the District argues the
offers “did not require ‘execution and transmittal of a written settlement
agreement’ as . . . in Sanford,” but rather “sought execution of a ‘settlement
and release.’ ” In this context, “execute” reasonably implies a written
document. (See Black’s Law. Dict., 11th ed. [definitions of “execute” include
“[t]o make (a legal document) valid by signing”].) Accordingly, the District’s
combined respondent’s brief and cross-appellant’s opening brief repeatedly
characterized the offer as “requir[ing] . . . a settlement agreement,” in one
instance calling it an “expected settlement agreement.” The District offers no
22 Although we need not address whether the Civil Code section 1542
waiver separately renders the Code of Civil Procedure section 998 offer
invalid, we note that in cases cited by the District on the issue, the offeror
provided a settlement agreement that included the Civil Code section 1542
waiver, mitigating concerns about its scope. (See Fassberg Construction Co.
v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 765
[“proposed agreement . . . included a waiver of the provisions of Civil Code
[§] 1542”]; Auburn, supra, 56 Cal.App.5th at p. 726 [Civ. Code, § 1542 waiver
in proposed settlement agreement was limited to “any and all claims for
damages related to the subject of the ACTION”].)
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reasonable explanation on reply for what else “execution of a settlement and
release” could mean.
DISPOSITION
The judgment and order are affirmed. The District shall be awarded its
costs with respect to Plaintiffs’ appeal. Plaintiffs shall be awarded their costs
with respect to the District’s appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
BUCHANAN, J.
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