Judge: Kevin A. Enright, Case: 37-2021-00006011-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - May 02, 2024

05/03/2024  10:30:00 AM  2103 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kevin A. Enright

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00006011-CU-PO-CTL DOE VS CORONADO UNIFIED SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Coronado Unified School District (CUSD)'s Motion for Judgment Notwithstanding the Verdict is GRANTED IN PART and DENIED IN PART. The allocation of harm is modified as follows: sixty percent (60%) to Jordan Bucklew; and forty percent (40%) to CUSD.

Defendant CUSD's Motion for New Trial, or in the Alternative, Remittitur is DENIED.

Preliminary Matters Plaintiff's objections to the declaration of Randall Winet are SUSTAINED as to Objection Nos. 7-8 (Evid.

Code § 1150) and 12-13 (Hearsay; Evid. Code § 1150) and are otherwise OVERRULED.

Plaintiff's objections to the declaration of Cvetanka Perovic are SUSTAINED. (Evid. Code § 1150).

Plaintiff's objections to the declaration of Mark Generoli are SUSTAINED. (Evid. Code § 1150; Code Civ.

Proc., § 2015.5 [declaration is unsigned]).) Although CUSD filed an 'amended' declaration of Randall Winet that included a slightly modified and signed declaration from Generoli, CUSD filed this declaration and exhibits after the 10-day deadline to file and serve supporting affidavits after filing a notice of intention under CCP § 659a, and on the same day Plaintiff filed her oppositions. (ROA 256, 264, 274.) CUSD's objections to the declaration of Joshua Arriola are SUSTAINED. (Evid. Code § 1150).

CUSD's objections to the declaration of Lucy Cao are SUSTAINED. (Evid. Code § 1150).

CUSD's objections to the declaration of Karen Kane are SUSTAINED. (Evid. Code § 1150).

CUSD's objections to the declaration of Nathan Stein are SUSTAINED. (Evid. Code § 1150).

CUSD's objections to the declaration of Ronald Weaver are SUSTAINED. (Evid. Code § 1150).

CUSD's objections to the declaration of Lina Willis are SUSTAINED. (Evid. Code § 1150).

Background This matter proceeded to jury trial on February 20, 2024. On March 11, 2024, the jury returned a special verdict. (ROA 235.) The jury found Jordan Bucklew posed a risk of sexual misconduct towards students; Calendar No.: Event ID:  TENTATIVE RULINGS

3112083 CASE NUMBER: CASE TITLE:  DOE VS CORONADO UNIFIED SCHOOL DISTRICT [IMAGED]  37-2021-00006011-CU-PO-CTL CUSD knew or should have known Bucklew posed a risk of sexual misconduct toward students and this risk created a particular risk to others; Bucklew's risk of sexual misconduct toward students harmed Plaintiff; and CUSD's negligence in hiring, retaining or supervising Bucklew was a substantial actor in causing Plaintiff harm. (Id., Question Nos. 1-4.) The jury awarded Plaintiff $2.5 million in past non-economic damages and $2.5 million in future non-economic damages, for a total of $5 million. The jury apportioned responsibility for Plaintiff's harm as follows: ten percent (10%) to Jordan Bucklew; and ninety percent (90%) to CUSD. (ROA 235, Question Nos. 5-6.) On March 22, 2024, CUSD filed a notice of intention to move for new trial and judgment notwithstanding the verdict (JNOV). (ROA 240.) Thus, CUSD timely moved for a new trial and JNOV after the jury verdict was rendered but before judgment was entered. (CCP §§ 629, 659.) On March 29, 2024, CUSD timely filed and served the instant motions within 10 days of filing the notice of intention pursuant to CCP § 659a. (ROA 246, 250, 251, 254.) On April 5, 2024, the Court entered judgment on the verdict. (ROA 265.) The parties timely filed oppositions and replies. (ROA 256, 264, 268, 270.) Analysis Motion for Judgment Notwithstanding the Verdict CUSD moves for JNOV on the following grounds: 1) there is no substantial evidence to support a finding CUSD knew or should have known Bucklew posed a risk of sexual misconduct toward students; and 2) JNOV should be granted on the issues of improper allocation of fault between CUSD and Bucklew and the excessive damages. (ROA 251, at p. 1:25-2:9.) In essence, a motion for JNOV is a 'challenge to the sufficiency of the evidence to support the jury's verdict[.]' (Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 703.) When reviewing a JNOV, the appellate court will ordinarily use the same standard the trial court uses in ruling on the motion and determine whether it appears from the record, viewed most favorably to the party securing the verdict, that any substantial evidence supports the verdict. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284 (1998); Sweatman v. Dept. of Veteran's Affairs (2001) 25 Cal.4th 62, 68.) The trial court properly denies the motion if there is any substantial evidence, or reasonable inferences to be drawn from the evidence, to support the verdict. (Trujillo, supra, at 284.) The court may, under appropriate circumstances, grant a partial JNOV. (See Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 314.) 'Substantial evidence' is a quantum of evidence that is 'enough to allow a reasonable jury to have reached the challenged result.' (College Hospital, Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 715.) However, '[s]ubstantial evidence is not 'synonymous with 'any' evidence. It must be reasonable . . . ., credible, and of solid value . . . .' [Citation.]' (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp.

(2007) 157 Cal.App.4th 835, 845.) Trial courts 'may not weigh the evidence or judge the credibility of witnesses,' must draw all reasonable inferences in favor of the prevailing party and must disregard conflicting evidence. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 299.) For the reasons set forth below, the Court finds there is no substantial evidence to support the jury's verdict apportioning 90% fault to CUSD and 10% fault to Bucklew. (ROA 235, Question No. 6.) The Court is otherwise not persuaded CUSD has met the standards for granting JNOV.

Knowledge of Risk of Sexual Misconduct Calendar No.: Event ID:  TENTATIVE RULINGS

3112083 CASE NUMBER: CASE TITLE:  DOE VS CORONADO UNIFIED SCHOOL DISTRICT [IMAGED]  37-2021-00006011-CU-PO-CTL There is substantial evidence in the record for the jury to have found that CUSD knew or should have known Bucklew posed a risk of sexual misconduct toward students. Contrary to CUSD's contentions, the evidence presented at trial was not limited to the evidence Plaintiff presented regarding code of conduct violations and the awareness of CUSD employees and supervisors of these violations. Plaintiff also presented evidence that head basketball coach Toler Goodwin knew or should have known the risks presented by Bucklew during the January 2020 trip by the basketball team to Los Angeles when he permitted Bucklew to take Plaintiff to the bar to watch a Lakers game. Plaintiff also presented evidence that the District knew or should have known of the risks presented by Bucklew based on the testimony of a previous member of the basketball team regarding Bucklew's conduct against her.

Accordingly, CUSD's JNOV motion is DENIED on this basis.

Non-Economic Damages 'There is no fixed standard to determine the amount of noneconomic damages. Instead, the determination is committed to the discretion of the trier of fact.' (Phipps v. Copeland Corporation LLC (2021) 64 Cal.App.5th 319, 337.) There is substantial evidence in the record for the jury to have awarded $5 million in non-economic damages, as Plaintiff presented substantial evidence that she suffered serious emotional injures. Plaintiff presented evidence of the effect of the harm she suffered had on her well-being, including trauma and various symptoms of severe emotional distress. While CUSD argues that Plaintiff 'has been and continues to function at a high level' in light of her academic and social activities following the events with Bucklew (See ROA 270, Reply, at p. 4:27), Plaintiff presented evidence she suffers from chronic PTSD and Major Depressive Disorder and underwent four years of therapy.

Accordingly, CUSD's JNOV motion is DENIED on this basis.

Allocation of Fault The Court finds there is no substantial evidence in the record to support the allocation of fault between Bucklew and CUSD set forth in the special verdict.

'[A] school district may be liable for its own negligence in supervising and hiring a teacher who sexually abuses a student. The district may not, however, be held vicariously liable for the teacher's act of sexual misconduct.' (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1057, citing John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438.) The California Supreme Court has noted in dicta that 'when negligence by an administrator or supervisor is established, the greater share of fault will ordinarily lie with the individual who intentionally abused or harassed the student than with any other party, and that fact should be reflected in any allocation of comparative fault.' (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 879.) The evidence presented by both parties demonstrated that Bucklew engaged in, and plead guilty to, criminal conduct. The evidence presented also showed Bucklew used his position of trust and authority, and his popularity with students and CUSD staff, to engage in his predatory acts. In contrast, there was no evidence of any criminal conduct by CUSD staff or supervisors. Although CUSD is liable for its negligent acts, it cannot be held liable for Bucklew's criminal acts of sexual misconduct.

Plaintiff contends the evidence presented demonstrates that CUSD employees and supervisors did not take action against Bucklew and helped facilitate his conduct. While this evidence (or reasonable inferences from the evidence) supports a finding of CUSD's culpability, it does not support apportioning a much greater degree of fault to CUSD compared to Bucklew. (See Ortega, supra, 64 Cal.App.4th at p. 1057; see also Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 148 [evidence did not support apportionment of 99% of fault to negligent defendants and 1% to person who committed criminal acts as no reasonable jury could conclude the latter's fault 'was as trifling as the jury's allocation would Calendar No.: Event ID:  TENTATIVE RULINGS

3112083 CASE NUMBER: CASE TITLE:  DOE VS CORONADO UNIFIED SCHOOL DISTRICT [IMAGED]  37-2021-00006011-CU-PO-CTL suggest'].) Accordingly, CUSD's JNOV motion is GRANTED on this basis. The allocation of harm is modified as follows: sixty percent (60%) to Jordan Bucklew; and forty percent (40%) to CUSD.

Motion for New Trial or, in the Alternative, Remittitur Based on the notice, CUSD moves for a new trial under CCP § 657 on the following grounds: (1) irregularity in the proceedings of the court, jury or adverse party; (5) the award of damages was excessive; and (6) the evidence was insufficient to justify the verdict or decision. (ROA 272, at p. 1:26-2:5.) CUSD alternatively moves for a remitter under CCP § 662.5. (Id. at p. 2: 6-8.) The Court must evaluate whether any of the identified statutory grounds for new trial is established, and if so, whether that ground 'materially affect[s] the substantial rights of [the moving] party.' (CCP § 657.) A new trial may only be granted in California if a miscarriage of justice occurred. (Ibid.; Cal. Const. Art.

VI, sec. 13; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 579.) On a motion for new trial, the trial court is charged with reviewing the record and weighing the evidence admitted at trial to determine whether the 'jury clearly should have reached a different verdict or decision.' (CCP § 657.) In ruling on a new trial, a trial court sits as an independent trier of fact. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) 'A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury ....' (Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.) A judge who presided over the trial is presumed to have considered the entire record before ruling on the motion. (See Maher v. Saad (2000) 82 Cal.App.4th 1317, 1324.) New trials shall not be granted unless moving parties show a reasonable probability that a more favorable result could have been obtained, were it not for an error. (Winfred D. v. Michelin No. Amer., Inc. (2008) 165 Cal.App.4th 1011, 1038.) 1) Irregularity in the Proceedings (CCP § 657(1)) A new trial may be ordered due to an '[i]rregularity of the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.' (CCP § 657(1).) A motion on these grounds must be supported by affidavits. (Id. § 658.) An 'irregularity in the proceedings' under CCP § 657(1) refers to an act that (1) violates the right of a party to a fair trial and (2) to which a party cannot object during the trial. (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229-1230.) - Misconduct of Opposing Counsel Misconduct of counsel can be grounds for a new trial only if it is 'reasonably probable' that the party moving for a new trial would have obtained a more favorable result absent the misconduct. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 303.) Whether counsel's misconduct is prejudicial turns on such factors as 'the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances.' (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 211.) CUSD contends the introduction of future therapy costs as an item of economic damages by Plaintiff's counsel, followed by counsel's subsequent withdrawal of economic damages before closing arguments, constituted misconduct and confused the jury. In considering the attorney misconduct alleged by CUSD, including consideration of the scope of Dr. Cresswell's testimony, the overall proceedings, as well as the Court's discussion on CUSD's juror misconduct arguments set forth below, the Court does not find the alleged misconduct constituted prejudice as to warrant a new trial.

- Jury Misconduct Calendar No.: Event ID:  TENTATIVE RULINGS

3112083 CASE NUMBER: CASE TITLE:  DOE VS CORONADO UNIFIED SCHOOL DISTRICT [IMAGED]  37-2021-00006011-CU-PO-CTL CUSD contends as a result of the conduct of Plaintiff's counsel in introducing evidence of future therapy costs but ultimately withdrawing the economic damages claims before closing arguments, the jury improperly considered and included economic damages (future therapy costs) in the award of non-economic damages.

'A trial court undertakes a three-step process to evaluate a motion for new trial based on juror misconduct' under CCP § 657. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 278) 'The trial court must first determine whether the declarations supporting the motion are admissible under Evidence Code section 1150. Second, if all or part of the declarations are admissible, the trial court determines whether the facts establish misconduct. If the trial court finds misconduct occurred the trial court then determines whether the misconduct was prejudicial.' (Ibid.; see also Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345.) The moving party 'bears the burden of establishing juror misconduct.' (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.) 'Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.' (See Evid. Code, § 1150(a), emphasis added.) A juror may not testify to the subjective reasoning processes of the individual juror, or the subjective collective mental process purporting to show how the verdict was reached. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1683.) '[J]uror declarations are inadmissible where, as here, they 'at most suggest 'deliberative error' in the jury's collective mental process-confusion, misunderstanding, and misinterpretation of the law.' ' (Ibid.) Juror affidavits that recite the reasoning process the jury employed during deliberations to arrive at its damages reflect the jurors' subjective mental processes and constitute inadmissible evidence to impeach a verdict. (Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1604.) In support of its claim of juror misconduct, CUSD relies on the declarations of jurors Cvetanka Perovic and Mark Generoli (ROA 248, Winet Decl., at Exs. G-H.) Notwithstanding the procedural deficiencies with the declarations of Generoli filed with the Court, CUSD has not provided admissible evidence to support a finding that there was prejudicial juror misconduct.

The declarations of Perovic and Generoli purportedly describe the process by which the jurors determined the amount of damages and allocation of fault and thus contain inadmissible characterizations of the mental processes of jurors. For instance, Perovic attests: 'In discussing future non-economic losses, several jurors discussed their opinion that the Plaintiff would need future therapy, and the amounts of future non-economic losses should include financial provisions for that future therapy. Some jurors expressed their opinion that they believe the Plaintiff would need therapy for the rest of her life. Thus, in determining future non-economic losses, the jurors discussed that the cost of future therapy needed to be included as part of the damages awarded.' (ROA 248, Winet Decl., at Ex. G [Perovic Decl.], at ¶ 7.) Similarly, Generoli attests: 'In determining future non-economic damages, there were discussions about the fact that [Plaintiff] would need future therapy, including different types of therapy. We agreed that our verdict should take into consideration the expense of future therapy, and this issue was discussed as part of our juror deliberations.' (Id. at Ex. H [Generoli Decl.], at ¶ 5.) Both Perovic and Generoli further attest to the purported bases for the juror's determinations on non-economic damages and allocation of fault. (See Perovic Decl., at ¶¶ 6, 8; Generoli Decl., at ¶¶ 4, 6.) These statements are inadmissible. (Maxwell, supra, 22 Cal.App.4th at p. 1604; Mesecher, supra, 9 Cal.App.4th at p. 1683.) The declarations also contain inadmissible statements on the subjective reasoning processes of the individual jurors. (See Perovic Decl., at ¶ 6 ['I also felt that she had done well functionally since the Calendar No.: Event ID:  TENTATIVE RULINGS

3112083 CASE NUMBER: CASE TITLE:  DOE VS CORONADO UNIFIED SCHOOL DISTRICT [IMAGED]  37-2021-00006011-CU-PO-CTL events with Mr. Bucklew and to me the evidence did not support an award of $5 million dollars' and 'I feel that the amounts suggested by the jurors - myself included - were, in a way, arbitrary bids, not based on a realistic calculation but rather on a feeling what millions sound to us personally']; see also Generoli Decl., at ¶ 6.) To the extent CUSD also relies on Attorney Winet's declaration attesting to his communications with named and unnamed jurors (ROA 248, Winet Decl., at ¶ 3), such evidence is inadmissible hearsay and barred by Evidence Code § 1150.

Even if the Court considered these declarations, the declarations are insufficient evidence to establish jury misconduct. Nothing in the declarations indicate the jurors factored in or added the estimated $103,200.00 in future therapy costs as part of the award of future non-economic damages. (See Krouse v. Graham (1977) 19 Cal.3d 59, 81 [noting the juror affidavits 'concur in alleging that the Mladinov verdict was inflated by $30,000 to compensate her for her attorneys' fees'].) At most, these declarations show extensive deliberations on calculating non-economic damages. 'Such injuries are subjective, and the determination of the amount of damages by the trier of fact is equally subjective.' (Phipps, supra, 64 Cal.App.5th at p. 337.) 2) Excessive Damages (CCP § 657(5)), 3) Insufficiency of the Evidence (CCP § 657(6)) and 4) Remittitur These issues are addressed in the Court's ruling on CUSD's motion for JNOV. For the reasons previously set forth, the Court is not persuaded that the jury clearly should have reached a different verdict or decision as to the jury's determination CUSD knew or should have known Bucklew posed a risk of sexual misconduct toward students and the award of $5 million dollars in non-economic damages.

In light of the Court's ruling partially granting JNOV on the issue of apportionment, CUSD's motion is moot on this ground.

Conclusion Defendant Coronado Unified School District's Motion for Judgment Notwithstanding the Verdict is GRANTED IN PART and DENIED IN PART. The allocation of harm is modified as follows: sixty percent (60%) to Jordan Bucklew; and forty percent (40%) to CUSD.

Defendant Coronado Unified School District's Motion for New Trial, or in the Alternative, Remittitur is DENIED.

If this tentative ruling is confirmed, the Minute Order will be the order of the Court. No formal order is required.

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