Judge: Stephen I. Goorvitch, Case: 20STCV10698, Date: 2023-11-16 Tentative Ruling

Case Number: 20STCV10698    Hearing Date: February 22, 2024    Dept: 39

John Doe v. Los Angeles Unified School District

Case No. 20STCV10698

Pretrial Motions

            Plaintiff John Doe (“Plaintiff”) filed this action against the Los Angeles Unified School District (“Defendant” or the “LAUSD”) alleging that he was molested by an employee at his middle school.  The case will proceed to trial on the following causes of action:

Fourth COA – Negligent Hiring, Supervision and Retention (Government Code §§ 815.2 & 820)

Fifth COA – Breach of a Mandatory Duty to Report (Government Code § 815.6)

Eighth COA – Negligence (Government Code §§ 815.2 & 820)

            A.        Plaintiff’s Motions in Limine

                        1.         Motion in Limine #1 – GRANTED IN PART; DENIED IN PART

            Plaintiff’s counsel seeks to exclude evidence of certain actions by his client.  Plaintiff’s counsel argues: “Plaintiff has been diagnosed with conditions like ADHD, depression, and anxiety, both before and after the incident.  While some pre-existing diagnoses may be relevant to his damages, detailing specific bad acts would be unfairly prejudicial and should be excluded at trial . . . .”  One of Plaintiff’s theories of damages is that the molestation caused him to attempt suicide and is the reason for his psychological issues.  In raising this theory of damages, Plaintiff has put his mental state at issue, and Defendant is entitled to introduce evidence concerning Plaintiff’s mental health, which is reflected by his actions.

            Based upon the foregoing, the motion is granted in part and denied in part.  Defendant’s counsel may not introduce evidence concerning the following: (1) Plaintiff’s misdemeanor convictions and the underlying facts/circumstances; (2) The fact that Plaintiff’s girlfriend sought a restraining order against him in April 2017; and (3) Allegations of sexual harassment against Plaintiff in 2017.  With respect to the first and second issues, there is little probative value to this legal process, and any probative value would be greatly outweighed by the prejudice.  With respect to the third issue, evidence that Plaintiff engaged in sexual harassment is not probative in light of the Court’s decision to admit most of the other evidence, and it would be unduly prejudicial because the jury may be confused into believing that any consent by Plaintiff (who was a minor) is a defense in this case. 

            The motion is denied in all other respects because the remaining incidents are probative as to Plaintiff’s mental state and whether the sexual molestation—or the underlying psychological issues as evidence by Plaintiff’s behavior—are responsible for his damages.  In other words, the evidence Plaintiff seeks to exclude is probative to establish whether Plaintiff had a pre-existing psychological condition.  For example, behavioral issues at home or reports of violent behavior are probative of whether he had pre-existing psychological issues.  Although the Court is excluding the fact of the restraining order, Defendant’s counsel may introduce evidence of the underlying incident.  Similarly, Plaintiff’s drug and alcohol experimentation not only evidences a pre-existing psychological condition, it is close enough in time to the alleged molestation to be relevant to his recollection and perceptions of the events at issue.

            B.        Defendant’s Motions in Limine

                        1.         Motion in Limine #1 – GRANTED

Defendant seeks to exclude evidence of prior settlements or verdicts against the LAUSD.  Plaintiff stipulated to an order granting this motion in limine.  Therefore, the motion is granted.      

                        2.         Motion in Limine #2 – WITHDRAWN

                        3.         Motion in Limine #3 – GRANTED IN PART; DENIED IN PART

            Defendant seeks to exclude evidence relating to other allegations of sexual abuse at the John Liechty Middle School.  The motion is denied with respect to allegations of sexual abuse by Clara Moreno-Santos, because such evidence may be probative of the issue whether the LAUSD had notice of the relevant issues, and this probative value is not greatly outweighed by the prejudice.  The motion is granted with respect to allegations that any other LAUSD employees engaged in sexual abuse of students.  For example, allegations that Denique Tarin was investigated for kissing a middle school student and engaging in inappropriate conduct with students has little probative value, because the relevant issue is whether Defendant had notice of issues with Clara Moreno-Santos.  The mere fact that Denique Tarin had inappropriate relations with students does not mean the LAUSD was negligent in supervising Clara Moreno-Santos and reporting her abuse.  The Court finds that any probative value is greatly outweighed by the prejudice of having a trial within a trial concerning allegations against Denique Tarin. 

                        4.         Motion in Limine #4 – GRANTED

            Defendant moves to exclude evidence relating to Adalberto Vega’s promotion.  Plaintiff does not oppose the motion.  Therefore, the motion is granted with respect to both parties: While this order shall not prohibit Vega from testifying about his current assignment, neither party shall inquire into the circumstances for the reassignment.  Defendant’s counsel may not make a record that Vega was promoted, suggesting that he performed appropriately in response to the underlying incident.  Plaintiff’s counsel may not make a record that Vega was transferred, suggesting that he performed inappropriately in response to the underlying incident.

                        5.         Motion in Limine #5 – GRANTED WITHOUT PREJUDICE   

            Defendant seeks to exclude hearsay statements in police reports “reflecting that Plaintiff was the subject of child abuse.”  There are two reports at issue.  The first was written by LAPD Officer Avila, who is not on the witness list.  The second was written by LAPD Detective Melissa Jindra, who is on the witness list.  Both reports attribute statements to Plaintiff. 

            The Court grants the motion without prejudice to revisiting this decision during trial if necessary.  As an initial matter, the Court is unclear why the police report is necessary.  Detective Melissa Jindra will be a witness at trial.  Presumably, she will testify that she investigated allegations of child abuse, interviewed Plaintiff, and arrested Clara Moreno-Santos.  Detective Jindra likely would be able to testify as to Plaintiff’s statements as prior consistent statements if Defendant’s counsel challenges his credibility directly on cross-examination or indirectly by arguing that no molestation occurred.  Detective Jindra might be able to provide a lay opinion under Evidence Code section 800 that Plaintiff exhibited all of the characteristic signs and behavior of an abused child assuming she has foundation to do so (e.g., she has encountered abused children and investigated child molestation cases in the past).  Defendant’s counsel does not intend to argue that Plaintiff was not molested by Clara Moreno-Santos.  Therefore, the Court excludes the report under Evidence Code section 352 as cumulative of Detective Jindra’s testimony.

            The Court will revisit this decision if there is some independent need to introduce the report.  The report may, in fact, be admissible.  Police reports may fall within the official records exception to the hearsay rule if the officer prepared the report within the scope of her duty as a public employee; the report was made on or near the date of the relevant events; and the sources of information and method and time of preparation were such to indicate the trustworthiness of the report.  If necessary, the Court could conduct a 402 hearing with Detective Jindra in order to resolve this issue.   

                        6.         Motion in Limine #6 – GRANTED IN PART; DENIED IN PART  

            Defendant moves to exclude “evidence of statements related to Plaintiff’s alleged ‘diagnosis’ of herpes allegedly transmitted from Clara Moreno-Santos.”  The motion is granted in part and denied in part.

            Plaintiff may testify about his physical condition, i.e., that he discovered lesions, how they felt, etc.  Plaintiff may testify that he sought medical advice of this condition.  Plaintiff may testify concerning what medications he takes for the condition.  Plaintiff may testify about the timing of Clara Moreno-Santos’s molestation in relation to his discovery of the lesions, and whether he had sexual contact with anyone else during the relevant time period.   

            Plaintiff may not testify that he was diagnosed with herpes because the testimony would be based on hearsay.  Plaintiff also may not testify that the medications are used to treat herpes, as he lacks foundation for that testimony.  Plaintiff’s counsel must elicit this testimony from his non-retained expert witnesses (or retained expert witnesses, if they examined Plaintiff) or through other admissible evidence.

                        7.         Motion in Limine #7 – DENIED WITHOUT PREJUDICE   

            Defendant moves to exclude argument and evidence that the LAUSD had “any responsibility to check on Plaintiff off-campus.”  The Court cannot rule on this motion in advance of trial because the Court must hear the evidence and argument.  On the one hand, Defendant is correct that the LAUSD was not responsible for monitoring students after they leave school after school hours.  On the other hand, as the Court noted in denying Defendant’s motion for summary judgment, the LAUSD had a responsibility to hire, train, and supervise Ms. Moreno-Santos and to report suspected child abuse.  Defendant’s counsel may argue that it was not negligent in supervising Moreno-Santos because the misconduct occurred off-campus.      

            C.        Motion to Exclude Witnesses – DENIED

            Plaintiff’s counsel moves to exclude four witnesses: (1) Isela Vega, a therapist; (2) Melissa Pireo, a teacher; (3) Gabriela Lopez, a social worker; and (4) Guillermo Alas, a teacher.  The parties filed a joint witness list on February 20, 2024.  However, on February 19, 2024, at 6:39 p.m., Defendant’s counsel served Plaintiff’s counsel with a witness list containing the four additional names.

            The Court cannot exclude witnesses or evidence not identified or produced during discovery unless the omission violated a court order or otherwise was willful. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422-1434; see also Mitchell v. Superior Court (2015) 243 Cal.App.4th 269, 272; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334.)  Originally, the Court ordered the parties to prepare and file joint trial documents—and “to identify all witnesses they intend to call in their respective cases-in-chief, and identify and produce all exhibits they intend to introduce in their respective cases-in-chief”—on or before February 16, 2024.  (See Court’s Minute Order, dated January 29, 2024.)  However, the Court continued the deadline to February 20, 2024, to accommodate a two-day mandatory settlement conference.  (See Court’s Minute Order, dated February 15, 2024.)  The witnesses were disclosed in advance of the deadline, and there is no basis to conclude that Defendant’s counsel concealed the names of these potential witnesses in discovery.

            Based upon the foregoing, Plaintiff’s motion to exclude the additional witnesses is denied.  The Court authorizes Plaintiff’s counsel to take depositions of these witnesses after the discovery cut-off.  If Plaintiff’s counsel wishes to do so, the Court orders Defendant’s counsel to make any LAUSD employees available for depositions or to facilitate the depositions of any non-LAUSD employees.  This order is without prejudice to Plaintiff’s counsel seeking to exclude these witnesses as providing cumulative testimony.

            D.        Motion to Exclude Exhibits #147 and #148 – DENIED

            Plaintiff’s counsel moves to exclude Exhibit #147 and Exhibit #148, which are Plaintiff’s medical records.  The fact discovery cutoff was Monday, January 22, 2024, based on a trial date of February 20, 2024.  (See Court’s Minute Order, dated June 30, 2024.)  The subpoenas were served before the discovery cutoff: The subpoena for Exhibit #147 was served on January 10, 2024, and the subpoena for Exhibit #148 was served on January 12, 2024. 

            The declaration of the custodian of records for Exhibit #147 was executed on February 6, 2024.  The declaration of the custodian of records for Exhibit #148 was executed on January 29, 2024.  Plaintiff’s counsel advances no evidence that he served any discovery requests after January 29, 2024, that would have required production of these documents.  Nor can the Court find any misconduct by Defendant’s counsel.  The exhibit list filed on February 15, 2024, lists these documents in sufficient detail.  The documents were produced before the Court’s deadline of February 20, 2024.  (See Court’s Minute Order, dated February 15, 2024.)  Therefore, the motion is denied.