IN THE SUPREME COURT OF
CALIFORNIA
JANE S.D. DOE et al.,
Petitioners,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
MOUNTAIN VIEW SCHOOL DISTRICT,
Real Party in Interest.
S272166
Second Appellate District, Division Two
B313874
Los Angeles County Superior Court
BC712514
July 27, 2023
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Evans concurred.
JANE S.D. DOE v. SUPERIOR COURT
S272166
Opinion of the Court by Guerrero, C. J.
Jane S.D. Doe (plaintiff) sued the Mountain View School
District (real party in interest, hereinafter the District) to
recover for sexual abuse committed by her fourth-grade teacher
when she was eight years old. The District, seeking to
undermine plaintiff’s claim for emotional distress damages
resulting from the teacher’s conduct, planned to introduce
evidence that plaintiff had been molested a few years later by
another person — and that this subsequent molestation caused
at least some of plaintiff’s emotional distress injuries and
related damages.
Evidence Code section 1106, subdivision (a), generally
protects — or shields — civil litigants who allege “sexual
harassment, sexual assault, or sexual battery” by barring
evidence of a “plaintiff’s sexual conduct . . . to prove consent by
the plaintiff or the absence of injury to the plaintiff.” (Italics
added.)1 Yet subdivision (e) of section 1106 also specifies: “This
section shall not be construed to make inadmissible any
evidence offered to attack the credibility of the plaintiff as
provided in Section 783.” In turn, section 783, subdivision (d),
provides that a trial court may allow introduction of evidence
“regarding the sexual conduct of the plaintiff,” so long as that
evidence “is relevant pursuant to Section 780” (governing
1
Subsequent statutory references are to the Evidence Code
unless otherwise noted.
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Opinion of the Court by Guerrero, C. J.
witness credibility, generally) and “not inadmissible pursuant to
Section 352” (governing a court’s discretion to exclude relevant
evidence under certain circumstances).
Plaintiff filed a pretrial motion seeking to exclude
evidence of the subsequent molestation. The trial court ruled
that the challenged evidence was (1) not protected by any shield
statute, and (2) relevant and admissible with regard to whether
plaintiff’s emotional distress was caused solely by the teacher’s
conduct or by a combination of his conduct and the subsequent
molestation. In light of that ruling, both parties referred to the
subsequent molestation in their opening statements to the jury.
We then stayed the trial and directed the Court of Appeal to
issue an order to show cause. The appellate court obtained
briefing, held oral argument, and published an opinion finding
the evidence regarding the subsequent molestation admissible.
(Doe v. Superior Court (2021) 71 Cal.App.5th 227 (Doe).) We
granted review of that decision to address the interrelationship
of the statutory provisions and the admissibility of the
challenged evidence.
We conclude that section 1106, subdivision (e), may permit
admission of evidence that would otherwise be excluded under
section 1106, subdivision (a). But such admissibility is subject
to the procedures set out in section 783 and especially careful
review and scrutiny under section 352. As we shall explain, the
Legislature devised section 783 to protect against unwarranted
intrusion into the private life of a plaintiff who sues for sexual
assault, by identifying and circumscribing evidence that may be
admitted to attack such a person’s credibility. Correspondingly,
section 352, as applied in this setting, requires special informed
review and scrutiny, designed to protect such a plaintiff’s
privacy rights and to limit the introduction of evidence
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Opinion of the Court by Guerrero, C. J.
concerning such a person’s sexual conduct. And yet, these
crucial protections appear not to have been applied in this case.
Accordingly, we direct the Court of Appeal to remand the matter
to the trial court for further proceedings. Thereafter, the trial
court will need to determine whether, assuming the jury
remains empaneled, trial with that jury should proceed.
I. FACTS AND PROCEDURE
A. Molestation of Plaintiff by Her Teacher in 2009–
2010
Plaintiff is one of six former students suing the District
and its former employee, plaintiff’s teacher, Joseph Baldenebro,
concerning sexual abuse committed by Baldenebro. A first
amended complaint, filed in October 2020, alleges Baldenebro is
“currently in the custody of the California Department of
Corrections.” The complaint asserts negligence based on the
District’s hiring and retention of Baldenebro; its supervision of
him; its failure to warn, train, and educate against his abuse;
and its failure to report his abuse. The complaint also alleges
sexual harassment against the District and Baldenebro. (Civ.
Code, § 51.9.) Regarding plaintiff, who was born in May 2001,
the complaint alleges Baldenebro “molested [her] on multiple
occasions” in 2009–2010. Although the complaint asserts
generally that each minor victim was “molested” by Baldenebro
between 2002 and 2017, the complaint further alleges much
more graphic conduct as to plaintiff in particular. The
complaint contends she has suffered “extensive physical,
psychological and emotional damages,” which she eventually (in
2016) “began to discover . . . were caused by the childhood sexual
harassment” by Baldenebro.
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B. Discovery Revealing That in 2013 Plaintiff
Suffered a Subsequent Sexual Molestation by a
“Teenaged Family Friend”
Through
discovery,
the
District
learned
that
approximately three years after the original abuse by
Baldenebro, plaintiff suffered “another sexual incident” in 2013,
perpetrated by a “teenaged family friend.” Nothing in the record
sheds light on the nature or extent of the 2013 incident.
C. Pretrial Rulings Regarding Admissibility of
Evidence Concerning the 2013 Molestation
In May 2021, plaintiff filed a motion in limine invoking
sections 1106 and 352 as a shield against admission of evidence
concerning the 2013 molestation. At a pretrial hearing in mid-
July 2021, the trial court raised the applicability of “section 782”
which, along with corresponding section 1103, governs the
admissibility of evidence regarding “sexual conduct” and related
procedures to attack the “credibility of the complaining witness”
in criminal cases. Clearly, the trial court meant to refer to
section 783, which, along with corresponding section 1106,
governs admissibility of evidence concerning “sexual conduct”
and related procedures used to attack the “credibility of the
plaintiff” in civil cases. (Regarding the interrelationship and
background of these four key statutes, see pt. II., post.) The trial
court expressed doubt whether “section 782” governs admission
of the 2013 molestation because, the court asserted, that statute
“[t]ypically . . . relates to voluntary sexual activity of the victim.”
But “just to be on the safe side,” the court asked the District to
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Opinion of the Court by Guerrero, C. J.
submit a motion seeking to introduce the evidence under
“section 782.”2
The District filed an application as directed, arguing that
“section 782” did not govern because “[t]his action is not a
criminal prosecution.” The District also asserted it did not plan
to use the 2013 molestation evidence to impeach the plaintiff,
yet sought to introduce the evidence “out of an abundance of
caution.” In sealed filings it set out what it knew about the 2013
molestation and included a declaration concerning the relevance
of that evidence: “to establish an alternative explanation for
[plaintiff’s] psychological harm and condition.” Specifically, the
District asserted, whereas plaintiff “alleges past and future
emotional distress and psychological injuries from the
Baldenebro
molestation”
in
2009–2010,
“[t]he
2013
incident . . . may be the cause of harm from 2013 forward.”
After considering this additional briefing, the trial court
held a further hearing during jury selection, just a few days
before the parties were set to make opening statements.
Counsel for the District acknowledged that its briefing
concerning the court’s requested motion had been “a little
ambiguous,” and sought to “clarify” that it did indeed seek to
question plaintiff concerning “concurrent cause[s] of harm.”
2
Thereafter the trial court continued to refer to section 782,
when the court should have referenced and invoked section 783.
The District, in its subsequent briefing and arguments, noted the
inapplicability of section 782 to civil actions, yet failed to expressly
acknowledge that section 783 applied. The Court of Appeal below
acknowledged the trial court’s (and parties’) erroneous invocation
of sections 1103 and 782, but viewed the court and the parties as,
in practical effect, having addressed and applied sections 1106 and
783. (See Doe, supra, 71 Cal.App.5th at pp. 235, 241.
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Counsel explained that he intended to ask the plaintiff if she
was “the victim of a sexual abuse episode” in 2013 but would
“not examine her about the details or the specifics of the
incident.” Counsel acknowledged plaintiff’s “right to privacy,”
but argued that the District has a right “to show alternative
causes of that harm.”
The trial court, still erroneously referring to sections 1103
and 782 instead of sections 1106 and 783, ruled that the
evidence of the 2013 molestation fell outside the scope of any
shield statute. The court reasoned that the statutory term
“sexual conduct” (which is used in all four statutes) should be
understood to cover only voluntary conduct or a “willingness to
engage in” such conduct. The court determined the 2013
molestation necessarily reflects “involuntary” conduct, falling
outside those sections, because plaintiff was an unwilling
“victim of inappropriate sexual behavior.” Hence, the court
held, the “2013 . . . incident is not . . . sexual conduct within the
meaning of” the shield statutes.
Having so concluded, the trial court next proceeded to
consider the admissibility of evidence concerning the 2013
molestation under section 780, which as previously noted sets
out grounds the finder of fact may rely upon to assess witness
credibility; and under section 352, which prescribes a balancing
test for relevant evidence that may create a substantial danger
of undue prejudice if admitted.
Regarding witness credibility, the court addressed the
District’s argument that the jury should learn about the
subsequent molestation insofar as it relates to plaintiff’s
emotional distress damages. In this respect, the court
analogized the 2009–2010 abuse by Baldenebro and the
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subsequent 2013 molestation to a situation posed when a
litigant is involved in successive automobile accidents, and
asserted that “if there’s a subsequent auto case . . . and the
plaintiff is injured and the judge excludes evidence of that, I
think it would be reversible error.” The court highlighted some
of the issues facing plaintiff in the wake of the molestation by
Baldenebro — namely, anger with her parents and “issues with
boys.” The court surmised that the “second incident” may have
exacerbated these issues and that the District should be entitled
to elicit information about them in “the most minimally invasive
manner by asking [plaintiff] hopefully one single question.” The
court acknowledged plaintiff’s “right to privacy,” but found the
2013 molestation “highly and directly relevant on the defense
damage case” concerning whether plaintiff’s emotional distress
was caused solely by Baldenebro’s conduct or by a combination
of his conduct and the 2013 molestation.
Turning to undue prejudice under section 352, the trial
court stated it would exercise its discretion to allow the evidence
concerning the 2013 molestation, reasoning that its “probative
value is not substantially outweighed by the probability” that
admission would cause undue delay or prejudice, confusion, or
otherwise mislead the jury.
D. Writ Proceedings and Opening Statements at
Trial
Immediately after the trial court’s ruling, counsel for
plaintiffs petitioned the Court of Appeal for a writ of mandate
ordering the lower court to exclude evidence regarding the 2013
molestation and requested a stay of the trial proceedings
pending the appellate court’s review. In a hearing in the trial
court on that same day, the court confirmed that the District
would be permitted to “mention” the 2013 molestation in its
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opening statement. The Court of Appeal initially granted an
immediate stay of the trial later that day, but ultimately denied
the writ and dissolved the stay the following day.
On the next court day, plaintiffs’ counsel advised the trial
court and the District that he had filed a petition for review in
this court and request for an immediate stay. Counsel
confirmed that he was “not requesting a stay of this trial” from
the trial court and “preserv[ed] our objection to the subsequent
sexual abuse incident . . . but in light of the Court of Appeal’s
ruling, we will go forward and we will address that in our
opening as well because of the ruling.”
In the ensuing opening statements, counsel for plaintiffs
told the jury that his clients would recount “inappropriate
behavior” by teacher Baldenebro dating from the early 2000’s
until 2017. Counsel briefly described the conduct each of the six
student plaintiffs had experienced with Baldenebro:
inappropriate touching, kisses, being made to sit on
Baldenebro’s lap, and feeling a bulge in his pants. But, counsel
asserted, “[U]nfortunately [plaintiff] got the worst abuse.” In
addition to being subjected to conduct like the others, counsel
told the jury, plaintiff also was subjected to Baldenebro making
her rub his penis until he ejaculated; inserting his fingers into
her vagina; and inserting his penis into her mouth and
ejaculating. Further, counsel asserted, Baldenebro admonished
plaintiff: “If you ever tell anybody, I’ll tell them that you let me
do this to you.”
Plaintiff’s counsel eventually briefly foreshadowed the
additional sexual molestation plaintiff had suffered, telling the
jury: “The evidence will show that unfortunately [plaintiff] had
a subsequent incident with a . . . boy” in 2013. Moreover,
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counsel acknowledged, when plaintiff first reported
Baldenebro’s conduct to the police, she did not reveal “the
entirety of the trauma that she went through.” Finally, counsel
impliedly acknowledged that plaintiff’s psychotherapy
treatment records related to the 2013 incident would not
mention Baldenebro’s conduct.
Thereafter, counsel for the District began his opening
statement by conceding that “Baldenebro did most of the things
claimed by the plaintiffs” and acknowledging, “Baldenebro
caused the plaintiffs emotional distress, and as I’ve said from
the outset, the District has already admitted it was negligent
and . . . should have supervised him better.” The issue before
the jury, counsel for the District asserted, is the extent to which
the District caused each plaintiff’s harm. Counsel previewed the
events that all six student plaintiffs allege occurred with respect
to each of them, and the corresponding asserted emotional
injuries of each. With regard to five of the six student plaintiffs,
counsel generally conceded that their allegations established
some level of depression and resulting psychological harm, but
pointed out that in most instances other unrelated stressors —
such as dealing with a sibling’s drug abuse, a brother’s death, a
father’s incarceration, or anxiety caused by being a new
mother — contributed in some manner to each plaintiff’s
cumulative psychological harm.
Counsel for the District then turned to plaintiff and
observed that she is “the only one who makes” more “graphic
allegations.” Counsel asserted that when plaintiff, at the age of
18, became aware of Baldenebro’s arrest, she reported his abuse
to the sheriff’s department, where she was interviewed by a
female deputy. At that time, counsel told the jury, plaintiff
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“didn’t say anything about” the more graphic allegations
described by her trial counsel.
Counsel for the District next stated that plaintiff
“underwent therapy from October 2016 to April 2017” but
during those sessions “never mention[ed] or stat[ed] anything
about Baldenebro.” Moreover, counsel asserted, when plaintiff
resumed therapy in April 2019, and at that time mentioned
“abuse by a school teacher,” she did not describe any graphic
conduct like that highlighted by her counsel.
Counsel for the District told the jury that discovery
showed that plaintiff stated, under oath, that she attributes her
emotional distress to “the abuse and conduct [of] Baldenebro” in
the “2009–2010 time frame.” Counsel then addressed the
evidence concerning the 2013 molestation: “[C]ompletely
unrelated to this, and tragically in 2013[,] she was sexually
molested and abused unrelated to . . . the school district or
Baldenebro — by a family friend or relative.” “[O]ur expert
[psychiatrist] . . . will tell you you can’t just separate them, that
the mental issues she’s got are in part caused by her interaction
with Baldenebro, whatever that was, and the completely
unrelated molestation in 2013 that she’s still suffering [from]
separately and apart.” (Italics added.
Counsel concluded by telling the jury that the District’s
psychiatrist expert interviewed plaintiff five months earlier for
“three hours . . . and diagnosed [plaintiff] with posttraumatic
stress disorder, PTSD. [The District’s psychiatrist] believes it
was caused by the unrelated 2013 sexual abuse incident and by
Baldenebro. Both.” And so, counsel argued, Baldenebro is
indeed part of the cause of plaintiff’s emotional distress, but “it’s
a whole other stressor going on in this life that was traumatic
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and awful that she experienced unrelated to [the District] and
Baldenebro.”
After opening statements, four of the witnesses for the
student plaintiffs and the other claimants testified. Before trial
resumed the next morning, this court, acting in connection with
plaintiff’s then-pending petition for review, stayed further trial
proceedings. Two days later, we granted the petition for review
and immediately transferred the matter back to the Court of
Appeal with directions to issue an order to show cause. The
Court of Appeal expeditiously did so. The trial court then
advised the jury that the matter had been stayed, but
admonished: “You are still jurors in this case” and would be
advised “when proceedings do resume and when you will be
required to appear . . . for [resumption of] this trial.”
E. Proceedings in the Court of Appeal
The Court of Appeal continued our stay of trial
proceedings and obtained further briefing. The District did not
defend the trial court’s view that the evidence failed to qualify
as “sexual conduct” under what the District belatedly
acknowledged as the relevant statutes, sections 1106 and 783.
Instead, the District asserted the evidence is admissible to
attack plaintiff’s credibility under section 783.
In its opinion denying plaintiff’s petition for a writ of
mandate, the Court of Appeal held that the trial court erred in
referring to inapplicable sections 1103 and 782 (governing
criminal cases) instead of sections 1106 and 783 (governing civil
cases), and more significantly, by ultimately ruling that no
shield statute governed. The Court of Appeal explained that
contrary to the trial court’s understanding, the term “sexual
conduct” as used in the shield statutes encompasses both a
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Opinion of the Court by Guerrero, C. J.
plaintiff’s voluntary conduct and sexual abuse to which a
plaintiff has been involuntarily subjected; hence, admission of
the evidence regarding the 2013 molestation must be analyzed
under sections 1106 and 783. (Doe, supra, 71 Cal.App.5th at
pp. 236–240.) The appellate court nonetheless determined that
the trial court had, in essence, “conducted a hearing [under
section 783] as statutorily required.” (Id. at p. 235.) The Court
of Appeal “anticipated” that plaintiff would eventually testify
that all of her present emotional distress is attributable to
Baldenebro and to no other cause. (Id. at p. 232.) The court
then characterized the trial court’s ultimate evidentiary ruling
as ambiguous and proceeded to interpret that ruling narrowly,
viewing it as “admitting the 2013 molestation for impeachment
purposes only.” (Id. at p. 235, italics added; see also id. at
p. 241.
Having construed the record and the trial court’s ruling in
this manner, the Court of Appeal proceeded to address the
section 352 balancing inquiry. The appellate court determined
that the trial court had “applied the same section 352 analysis
called for by” sections 1106 and 783. (Doe, supra, 71 Cal.App.5th
at p. 235, italics added.) Moreover, the Court of Appeal
concluded, the trial court did not abuse its discretion in
declining to exclude the challenged evidence under section 352.
(Doe, at pp. 240–242.) The appellate court lifted the stay of trial
proceedings and instructed the trial court to either assess any
prejudice flowing from the empaneled jury’s exposure to the
mentioning of the 2013 incident during opening statements or
to restart the trial with a new jury.
Plaintiff and the other claimants filed a second petition for
review, which we granted.
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II. GENERAL AND STATUTORY BACKGROUND
In order to understand and place into perspective the key
statutes at issue here — sections 1106 and 783 — we find it
useful to briefly survey the history that led to them. As shown
below, by enacting these provisions, the Legislature sought to
extend reforms governing criminal prosecution of sexual assault
crimes by making corresponding reforms to the Evidence Code’s
treatment of civil suits for sexual assault or harassment.
Early California statutes and decisions concerning
criminal prosecutions for rape evinced considerable solicitude
toward the accused and skepticism regarding the alleged
victim.3 Relatedly, courts permitted defendants to present
evidence of a rape victim’s past sexual history to refute the
prosecution’s charge that a sexual act was nonconsensual.4
3
Indeed, to prove the statutory crime of rape, the prosecution
was required to establish physical resistance by a victim. (People
v. Fleming (1892) 94 Cal. 308, 311 [noting that the applicable
statute required a showing that the victim “ ‘resists, but her
resistance is overcome by force or violence’ ”].) An early decision
by this court asserted that “non-resistance” would be seen as “an
invitation to [a] defendant to persist in his endeavors.” (People v.
Brown (1874) 47 Cal. 447, 450.) In 1980, our Legislature amended
California’s rape statute “to delete most references to resistance.”
(People v. Barnes (1986) 42 Cal.3d 284, 292.
4
Our opinion in People v. Pantages (1931) 212 Cal. 237
observed that it would be error “ ‘to exclude evidence which tends
to show prior unchaste acts’ ” of an adult woman, “ ‘either with the
defendant or with other men.’ ” (Id. at p. 262.) We quoted
approvingly from one of our prior decisions: “ ‘ “This class of
evidence is admissible for the purpose of tending to show the
nonprobability of resistance upon the part of the prosecutrix. For
it is certainly more probable that a woman who has [had sexual
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In 1981, our Legislature, apparently spurred by then-
recent corresponding federal reforms,5 amended sections 1103
and 782 to restrict the ability of a criminal defendant to present
evidence of a sexual assault victim’s past sexual history. (Stats.
1981, ch. 726, §§ 1–2, pp. 2875–2877; see generally People v.
Fontana (2010) 49 Cal.4th 351, 362 (Fontana) [“The
Legislature’s purpose in crafting these limitations is manifest
and represents a valid determination that victims of sex-related
offenses deserve heightened protection against surprise,
harassment, and unnecessary invasions of privacy”].) Under
section 1103 as amended, evidence of “the complaining witness’
sexual conduct . . . is not admissible by the defendant in order to
prove consent by the complaining witness.” (§ 1103, former
subd. (b)(1), renumbered as § 1103, subd. (c)(1).) And yet the
relations] voluntarily in the past would be much more likely to
consent, than one whose past reputation was without blemish, and
whose personal conduct could not truthfully be assailed.” ’ ” (Id. at
pp. 262–263, quoting People v. Johnson (1895) 106 Cal. 289, 293.
5
As explained in Priest v. Rotary (N.D.Cal. 1983) 98 F.R.D.
755, 762 (Priest), by 1978, “Congress became so disturbed at the
treatment of rape victims that it enacted [Federal Rules of
Evidence, rule] 412.” The federal rule provides: “[E]vidence
offered to prove that a victim engaged in other sexual behavior” or
“to prove a victim’s sexual predisposition” is inadmissible in
proceedings “involving alleged sexual misconduct.” (Fed. Rules
Evid., rule 412(a)(1–2), 28 U.S.C.) Yet the federal rule recognizes
exceptions applicable in both criminal and civil cases. Regarding
the former, the exceptions include admission of “evidence whose
exclusion would violate the defendant’s constitutional rights.” (Id.,
rule 412(b)(1)(C).) In civil cases, “the court may admit evidence
offered to prove a victim’s sexual behavior or sexual predisposition
if its probative value substantially outweighs the danger of harm
to any victim and of unfair prejudice to any party.” (Id.,
rule 412(b)(2).
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amended statute provided an exception: “This subdivision does
not make inadmissible any evidence offered to attack the
credibility of the complaining witness as provided in
Section 782.” (Id., former subd. (b)(4), renumbered as § 1103,
subd. (c)(5).
Section 782, as correspondingly amended in 1981, in turn
establishes procedures to be followed in criminal cases when
“evidence of sexual conduct of the complaining witness is offered
to attack the credibility of the complaining witness.” (Id.,
subd. (a).) The statute calls for a written motion; an affidavit
filed under seal accompanied by an offer of proof; a hearing
outside the presence of any jury at which there may be
questioning of the alleged crime victim; and finally, an
assessment of admissibility under section 352, followed by an
order specifying what evidence may be introduced by the
defendant and the nature of questions permitted. (§ 782,
subd. (a)(1)–(4).
Most recently, and directly relevant here, in 1985 our
Legislature enacted civil law reforms extending the above-
described protections afforded by the criminal rape shield
statutes to the civil context. (Stats. 1985, ch. 1328, § 1, p. 4654.
The legislation, Senate Bill No. 1057 (1985–1986 Reg. Sess.),
added sections 1106 and 783 to the Evidence Code, which
substantially track their criminal counterparts, and made
corresponding amendments to the Code of Civil Procedure
(placing limitations on civil discovery concerning sexual
conduct)6 and the Government Code (addressing administrative
6
See Code of Civil Procedure, former section 2036.1, amended
and renumbered as section 2017.220 (authorizing, in subd. (a),
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adjudications, and imposing substantially similar limitations on
discovery concerning sexual conduct and on admission of such
evidence).7
Within Senate Bill No. 1057 (1985–1986 Reg. Sess.), our
Legislature set out to clarify, in uncodified section 1 of its
enactment, its purpose and the policy it sought to achieve. It
recounted that prior to the amendment of sections 1103 and 782,
“victims in criminal prosecutions for rape . . . often ran the risk
of finding their own moral characters on trial during the
prosecution of their assailants” and explained: “It is the intent
of the Legislature to take similar measures” as specified in those
sections “in sexual harassment, sexual assault, or sexual battery
cases.” (Stats. 1985, ch. 1328, § 1, p. 4655.) In this regard, the
Legislature declared: “The discovery of sexual aspects of
complainant[s’] lives, as well as those of their past and current
friends and acquaintances, has the clear potential to discourage
complaints and to annoy and harass litigants. That annoyance
and discomfort, as a result of defendant or respondent inquiries,
is unnecessary and deplorable. Without protection against it,
individuals whose intimate lives are unjustifiably and
offensively intruded upon might face the ‘Catch-22’ of invoking
their remedy only at the risk of enduring further intrusions into
details of their personal lives in discovery, and in open quasi-
judicial or judicial proceedings.” (Id., pp. 4654–4655.) Finally,
trial courts to permit “discovery concerning the plaintiff’s sexual
conduct” only if the “party seeking discovery . . . establish[es]
specific facts showing that there is good cause”).
7
See Government Code, former sections 11507.6 and 11513,
renumbered as section 11440.40 (correspondingly limiting
discovery and admission of evidence concerning a litigant’s sexual
conduct).
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echoing the then-recent federal court decision in Priest, supra,
98 F.R.D. at page 762, the Legislature concluded: “[T]he use of
evidence of a complainant’s sexual behavior is more often
harassing and intimidating than genuinely probative, and the
potential for prejudice outweighs whatever probative value that
evidence may have. Absent extraordinary circumstances,
inquiry into those areas should not be permitted, either in
discovery or at trial.” (Stats. 1985, ch. 1328, § 1, p. 4655.
III. DISCUSSION
Preliminarily, we observe that the threshold issue
addressed by the Court of Appeal — determining that, contrary
to the trial court’s understanding, the term “sexual conduct” as
used in sections 1106 and 783 encompasses both a plaintiff’s
voluntary conduct and sexual abuse to which a plaintiff has been
involuntarily subjected — is uncontested by the parties now.
(Doe, supra, 71 Cal.App.5th at pp. 236–240.) The District has
also abandoned its “argument that the 2013 molestation should
have been admitted for all purposes.” (Id. at p. 240.
Accordingly, as the appellate court held, admission of the
evidence regarding the 2013 molestation must be analyzed
under sections 1106 and 783.
As explained below, we conclude that section 1106,
subdivision (e), may permit admission of evidence that would
otherwise be excluded under section 1106, subdivision (a). But
such admissibility is subject to the procedures set out in section
783, together with careful review and scrutiny under
section 352. The Legislature devised section 783 to identify and
circumscribe evidence that may be admitted to attack a sexual
assault plaintiff’s credibility. Correspondingly, section 352, as
applied in this setting, requires special informed review and
scrutiny designed to protect such a plaintiff’s privacy rights and
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JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
limit introduction of evidence concerning that person’s sexual
conduct.
A. Does Section 1106, Subdivision (e), Allow
Admission of the Same Evidence Prohibited
Under Subdivision (a) To Attack the Credibility
of a Witness’s Testimony as it Relates to
Apportionment of Injury in the Calculation of
Damages?
As noted earlier, section 1106, subdivision (a), provides
generally that “[i]n any civil action alleging conduct which
constitutes sexual harassment, sexual assault, or sexual
battery, . . . evidence of specific instances of the plaintiff’s sexual
conduct . . . is not admissible by the defendant in order to prove
consent by the plaintiff or the absence of injury to the
plaintiff . . . .” (Italics added.) Yet the same statute’s
subdivision (e) states: “This section shall not be construed to
make inadmissible any evidence offered to attack the credibility
of the plaintiff as provided in Section 783.”
In turn, section 783 lists detailed procedures to be followed
“[i]n any civil action alleging conduct which constitutes sexual
harassment, sexual assault, or sexual battery, if evidence of
sexual conduct of the plaintiff is offered to attack credibility of
the plaintiff under Section 780,” which governs witness
credibility generally. The procedures set out in section 783,
subdivisions (a)–(c), call for a written motion, an affidavit
accompanied by an offer of proof, and a hearing outside the
presence of any jury at which there may be questioning of the
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Opinion of the Court by Guerrero, C. J.
plaintiff.8 Next, section 783, subdivision (d), provides: “At the
conclusion of the hearing, if the court finds that evidence
proposed to be offered by the defendant regarding the sexual
conduct of the plaintiff is relevant pursuant to Section 780, and
is not inadmissible pursuant to Section 352, the court may make
an order stating what evidence may be introduced by the
defendant, and the nature of the questions to be permitted. The
defendant may then offer evidence pursuant to the order of the
court.”
Viewing this scheme as adopted in 1985 as a whole and
giving full effect to all of its words and parts (Smith v. LoanMe,
Inc. (2021) 11 Cal.5th 183, 190), it is clear that section 1106,
subdivision (a), precludes admission of evidence concerning a
plaintiff victim’s sexual conduct as substantive evidence “in
order to prove consent by the plaintiff or the absence of injury to
the plaintiff.” (Italics added; see also Black’s Law Dict. (11th ed.
2019) p. 703, col. 1 [defining substantive evidence as that
“offered to help establish a fact in issue”].) In spite of this, the
Court of Appeal below concluded section 1106, subdivision (e),
and section 783 establish procedures under which “the very
8
These parts of section 783 read: “(a) A written motion shall
be made by the defendant to the court and the plaintiff’s attorney
stating that the defense has an offer of proof of the relevancy of
evidence of the sexual conduct of the plaintiff proposed to be
presented. [¶] (b) The written motion shall be accompanied by an
affidavit in which the offer of proof shall be stated. [¶] (c) If the
court finds that the offer of proof is sufficient, the court shall order
a hearing out of the presence of the jury, if any, and at the hearing
allow the questioning of the plaintiff regarding the offer of proof
made by the defendant.” The only significant difference between
these provisions and the criminal statutory counterpart,
section 782, is that the latter requires the affidavit to be filed and
kept under seal. (See § 782, subd. (a)(2) & (5).
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Opinion of the Court by Guerrero, C. J.
same evidence” of a victim’s sexual conduct may be admitted —
when relevant under section 780 and necessary and appropriate
under section 352 — to permit a defendant to impeach the
credibility of a plaintiff’s testimony concerning causation of
injury or apportionment of damages. (Doe, supra,
71 Cal.App.5th at p. 240; see also Black’s Law Dict., supra, at
p. 700, col. 2 [defining impeachment evidence as that “used to
undermine a witness’s credibility”]; McDermott, Note,
California Rape Evidence Reform: An Analysis of Senate Bill
1678 (1975) 26 Hastings L.J. 1551, 1557 [“substantive evidence
is admitted to prove or disprove any disputed fact or issue that
is of consequence to the determination of the action, while
credibility evidence is that which supports or attacks the
credibility of the witness”].
Plaintiff and amicus curiae on her behalf, Consumer
Attorneys of California, assert that the Court of Appeal’s
interpretation renders subdivision (a) of section 1106 “a nullity”
and that “[t]he statement to be impeached” pursuant to
subdivision (e) of section 1106 “cannot be one that is
inadmissible under” subdivision (a) of that same section.
1. The appellate opinion in Rioz provides guidance
In considering these objections to the appellate court’s
interpretation of the statutory language, we find an early Court
of Appeal opinion addressing the criminal statutory
counterpart, section 782, to be particularly instructive.
People v. Rioz (1984) 161 Cal.App.3d 905 (Rioz), which was
decided a few months before the bill that enacted the 1985
corresponding civil legislation was first introduced, recognized
the tension within the statutory scheme created by
sections 1103 and 782. Significantly, the court in Rioz
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Opinion of the Court by Guerrero, C. J.
reconciled that tension in a manner that allowed admission
under section 1103, former subdivision (b)(4) (now subd. (c)(5)),
and 782 of the very same type of consent evidence that was
inadmissible as substantive evidence under section 1103, former
subdivision (b)(1) (now subd. (c)(1)).
In Rioz, supra, 161 Cal.App.3d 905, it was alleged that the
defendants raped the victim. The defendants asserted the
victim had agreed to have sex with them for pay, and at trial
sought to introduce evidence that the victim had been convicted
of prostitution “as well as certain aspects of her activities as a
prostitute.” (Id. at p. 914.) The trial court excluded the evidence
under what is now subdivision (c)(1) of section 1103. (Rioz, at
p. 914.) We will quote in some detail the Court of Appeal’s
discussion addressing what it termed “the inherent tension” (id.
at p. 915) between that statute and section 782.
The appellate court began by commenting: “There is
necessarily a certain amount of overlap between the issues of
the victim’s consent in a rape or other sex offense case and the
victim’s credibility. Presumably, any complaining witness in a
rape case will deny consent to the sexual acts complained of; to
avoid the harassment which had traditionally plagued
complaining witnesses in cases of this type, the Legislature
excluded evidence of prior sexual activity by the complaining
witness with persons other than the defendant in order to prove
consent.” (Rioz, supra, 161 Cal.App.3d at p. 916.) The court
observed that under what is now subdivision (c)(1) of
section 1103, “a defendant in a rape case cannot, based solely
upon the victim’s testimony and . . . presumed denial of consent,
introduce evidence that [the victim] engaged in sexual activity
with” one, 10, or 100 other persons, “nor that [the victim]
engaged in such activity freely or for monetary compensation.
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Opinion of the Court by Guerrero, C. J.
This rule properly prevents the victim of sexual assault from
being . . . placed on trial.” (Rioz, at p. 916.
Nevertheless, the Court of Appeal in Rioz recognized that
what is inadmissible under what is now subdivision (c)(1) of
section 1103 can become admissible for impeachment under
what is now subdivision (c)(5) of section 1103. The court
reasoned: “[O]nce the defendant, in accordance with the
procedural requirements of . . . section 782, makes a sworn offer
of proof concerning the relevance of the sexual conduct of the
complaining witness to attack her credibility, even though it is
the underlying issue of consent which is being challenged, then
the absolute protection afforded by . . . section 1103, [former]
subdivision (b)(1) [now subdivision (c)(1)] gives way to the
detailed procedural safeguards inherent in . . . section 782.”
(Rioz, supra, 161 Cal.App.3d at p. 916, italics omitted & added.
The court in Rioz explained: “It is significant that the
express provisions of . . . section 782 vest broad discretion in the
trial court to weigh the defendant’s proffered evidence, prior to
its submission to the jury, and to resolve the conflicting interests
of the complaining witness and the defendant. Initially, the trial
court need not even hold a hearing unless it first determines
that the defendant’s sworn offer of proof is sufficient. Moreover,
even after a hearing outside the presence of the jury at which
the complaining witness is questioned about the defendant’s offer
of proof, the statute specifically reaffirms the trial court’s
discretion, pursuant to . . . section 352, to exclude relevant
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Opinion of the Court by Guerrero, C. J.
evidence which is more prejudicial than probative.” (Rioz,
supra, 161 Cal.App.3d at p. 916, italics added.)9
The appellate court in Rioz concluded: “This discretion in
the trial court, along with the other safeguards inherent
in . . . section 782, including the requirement that the defendant
tender a sworn offer of proof of the relevancy of the complaining
witness’ sexual conduct to attack her credibility, all operate to
provide a rational resolution of the tension existing between”
section 782 and what is now set out in subdivision (c)(5) of
section 1103. (Rioz, supra, 161 Cal.App.3d at p. 917, italics
added.) The court continued: “Such a resolution recognizes both
the right of the victim to be free from unwarranted intrusion
into [that person’s] privacy and sexual life beyond the offense
charged and the right of a defendant who makes the necessary
sworn offer of proof in order to place the credibility of the
9
At this point the Rioz court provided “[a]n example . . . to
demonstrate the wisdom of this statutory framework: A defendant
charged with forcible rape makes the requisite written motion,
supported by a sworn affidavit, offering to prove that the
complaining witness, a convicted prostitute, agreed to have sex
with the defendant for money and charged him with rape to get
even with him when he refused to pay her. However, not only has
the complaining witness denied that the sexual activity with the
defendant was [consensual], but other evidence establishes
without contradiction that the complaining witness was beaten in
connection with the event. Given the potentially prejudicial
impact of a prostitution conviction on the victim’s testimony that
she did not consent, the trial court, in the exercise of its discretion,
may determine that the injuries suffered by the victim are wholly
inconsistent with the defendant’s offer of proof and either reject
the sufficiency of the offer of proof in the first instance or exclude
evidence of the prostitution conviction, after a hearing, pursuant
to . . . section 352.” (Rioz, supra, 161 Cal.App.3d at pp. 916–917.
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Opinion of the Court by Guerrero, C. J.
complaining witness at issue to fully establish the proffered
defense.” (Ibid.
Finally, the Court of Appeal in Rioz cautioned that
“section 782 applies only when the credibility of the complaining
witness is attacked. Great care must be taken to insure that this
exception to the general rule barring evidence of a complaining
witness’ prior sexual conduct, i.e., . . . section 1103, subdivision
(b)(1) [now (c)(1)], does not impermissibly encroach upon the rule
itself and become a ‘back door’ for admitting otherwise
inadmissible evidence.” (Rioz, supra, 161 Cal.App.3d at pp. 918–
919, italics added.
The District extracts the following lesson from Rioz: “Just
as there is necessarily a certain amount of overlap between a
criminal complainant’s or a civil plaintiff’s consent in a criminal
or civil sexual assault case and her credibility, there is
necessarily a certain amount of overlap between the issues of a
civil plaintiff’s [emotional distress] damages and her credibility.
To be sure, there will be some overlap between [plaintiff’s
emotional distress] damages and her credibility. . . . Thus, once
a defendant makes a sworn offer of proof concerning the
relevance of the sexual conduct to attack the plaintiff’s
credibility,” the protection afforded by section 1106, subdivision
(a) “ ‘gives way [under the exception articulated in that section’s
subdivision (e)] to the detailed procedural safeguards inherent
in’ ” section 783. (Quoting Rioz, supra, 161 Cal.App.3d at
p. 916.
Indeed, this is ultimately the understanding arrived at by
the Court of Appeal below. The appellate court observed that
corresponding key parts of the 1985 legislation — Evidence
Code section 783, as well as Code of Civil Procedure 2017.220
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JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
(governing discovery; see ante, fn. 6) — each call “for a case-by-
case approach that sometimes allows for the discovery and
limited admissibility of a plaintiff’s sexual conduct, which puts
them in some ‘tension’ with section 1106,” subdivision (a). (Doe,
supra, 71 Cal.App.5th at p. 239.) The appellate court reasoned
that “in cases like this one,” in which a plaintiff who seeks “to
recover emotional distress damages will typically need to testify
to establish that the defendant’s conduct has inflicted emotional
distress,” such “testimony will make evidence of emotional
distress involuntarily inflicted by others through sexual abuse
relevant to impeach her testimony.” (Ibid., italics added.
Significantly, the appellate court acknowledged, “In such cases,
the very same evidence” that section 1106, subdivision (a
“excludes becomes admissible — subject to balancing under
section 352 — under section 783 to impeach” the plaintiff/victim
witness. (Doe, at pp. 239–240, italics added.
The Court of Appeal conceded that plaintiff’s restrictive
view of the statutory scheme — under which the exception
articulated in section 1106, subdivision (e), and section 783
would be “categorically unavailable when the proposed
impeachment regards the plaintiff’s consent or the absence of
injury prohibited as substantive evidence under [subdivision (a
of] section 1106” — might “be one way to try to harmonize the
inherent tension between sections 1106 and 783.” (Doe, supra,
71 Cal.App.5th at p. 242.) But, the court concluded, that
interpretation “is not one supported by the plain text of either
statute: Section 1106 expressly names section 783 as an
exception to its prohibitions, and section 783 looks to a case-by-
case balancing of considerations under section 352.” (Ibid.
We agree, as recognized in Rioz, supra, 161 Cal.App.3d
905 and by the Court of Appeal below, that there is inherent
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Opinion of the Court by Guerrero, C. J.
tension within the criminal (§§ 1103, 782) and civil (§§ 1106,
783) shield provisions. The tension within the criminal
provisions was highlighted soon after the Legislature enacted
the original version of section 782. (Review of Selected 1974
California Legislation, Criminal Procedure (1975) 6 Pacific L.J.
125, 265 [observing that because “the procedures enacted by
section 782 may in some cases permit the trier of fact to hear
evidence of the victim’s sexual conduct under the procedures
delineated above and for the purpose of determining credibility,
section 782 has the effect of permitting the trier of fact to hear
the same evidence which section 1103 (relating to consent) will
normally serve to exclude”].) The Court of Appeal in People v.
Chandler (1997) 56 Cal.App.4th 703, 708 (Chandler) implicitly
acknowledged this tension in the course of stressing the need to
“narrowly exercis[e]” and “sparingly” employ the discretion to
admit evidence under the criminal provisions. More recently,
we reiterated Rioz’s admonition concerning admission of
evidence under the criminal shield statutes: “[W]e emphasize
that ‘[g]reat care must be taken to insure that this exception to
the general rule barring evidence of a complaining witness’ prior
sexual conduct . . . does not impermissibly encroach upon the
rule itself and become a “back door” for admitting otherwise
inadmissible evidence.’ ” (Fontana, supra, 49 Cal.4th at p. 363,
quoting Rioz, supra, 161 Cal.App.3d at pp. 918–919.) Other
decisions applying the discovery shield statutes (see ante, fn. 6),
have echoed this caution in the course of warning against
allowing unwarranted discovery of such evidence.10
10
See, e.g., Vinson v. Superior Court (1987) 43 Cal.3d 833, 843
(Vinson) (quoting the Legislature’s uncodified statement of intent
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Opinion of the Court by Guerrero, C. J.
And yet great care does not mean that an express
exception prominently articulated in the statutory scheme
should not be given full effect in appropriate circumstances. We
conclude that contrary to plaintiff’s reading, subdivision (a) of
section 1106 does not contemplate categorical exclusion of
evidence concerning “other sexual conduct” when that evidence
is sought to be admitted under the same section’s subdivision (e
to challenge the credibility of the plaintiff as provided in
section 783.11
2. Sections 1106, subdivision (e) and 783 address
overall witness credibility — not exclusively false
testimony
Plaintiff also suggests in her opening brief that evidence
admissible under section 1106, subdivision (e) and section 783
should be “reserved for when the conduct being placed before the
jury has bearing on credibility because it tends to call into
and strictly construing “good cause” for civil discovery, requiring
“specific facts justifying inquiry”); Barrenda L. v. Superior Court
(1998) 65 Cal.App.4th 794, 801 (Barrenda L.) (stating that “good
cause” for civil discovery requires more than “[t]he mere fact that
a plaintiff has initiated an action seeking damages for extreme
mental and emotional distress”); Knoettgen v. Superior Court
(1990) 224 Cal.App.3d 11, 14 (Knoettgen) (asserting that courts
must be “vigilant” when allowing civil discovery concerning prior
sexual abuse); Mendez v. Superior Court (1988) 206 Cal.App.3d
557, 573 (Mendez) (observing that emotional distress is a normal
product of sexual abuse and to regularly allow discovery intruding
on such privacy would violate the Legislature’s intent).
11
Plaintiff suggests this conclusion is inconsistent with the
language of and the result in Knoettgen, supra, 224 Cal.App.3d 11,
an early case applying the civil discovery shield statute (see ante,
fns. 6 & 10). But the Knoettgen decision is distinguishable: It
mentioned sections 1106 and 783 only in passing and did not
construe or apply them.
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Opinion of the Court by Guerrero, C. J.
question whether the victim is offering false testimony.” (Italics
added.) In support, plaintiff relies on People v. Franklin (1994
25 Cal.App.4th 328 (Franklin), in which the Court of Appeal
briefly addressed the criminal statutory counterpart,
section 782 — and then ultimately allowed, without applying
that statute, evidence that a crime victim had previously made
false complaints of molestation. In her reply brief, plaintiff
appears to retreat from her prior assertions, stating that she has
“never argued” that the credibility exception is reserved for
probing whether a victim is offering false testimony.
In any event, such a narrow reading of the statutes is not
supported by the language of section 1106, subdivision (e),
which allows admission of evidence to address “the credibility of
the plaintiff” when the safeguards of section 783 are followed.
The sections apply whenever a plaintiff’s credibility as a witness
is at issue — such as when memory or accuracy may be
disputed. When evidence regarding a plaintiff’s credibility
concerns that person’s sexual conduct, the requirements of
sections 783, 780, and 352 work together to prevent admission
of evidence that is unnecessarily harassing, irrelevant, or
unduly prejudicial. But contrary to plaintiff’s suggestion,
section 783 is not addressed to “false testimony” in the form of
an assertion that a witness previously made, but which has been
determined to be untrue. (See People v. Tidwell (2008
163 Cal.App.4th 1447, 1456 [discussing and applying Franklin,
supra, 25 Cal.App.4th 328 and holding corresponding § 782
“inapplicable” when the defense sought to use a complaining
witness’s “allegedly false complaints” (contrasted with the
witness’s prior sexual conduct) “as impeachment evidence”].
We perceive nothing in the statutory language that
purports to limit the credibility exception as plaintiff suggests.
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Opinion of the Court by Guerrero, C. J.
Instead, we read the scheme as contemplating that in
appropriate and limited circumstances, admission of “other
sexual conduct” evidence may indeed be warranted under
section 1106, subdivision (e), and section 783 for
impeachment — even when that same evidence is inadmissible
as substantive evidence under section 1106, subdivision (a) —
subject, of course, to the credibility and section 352 analysis
contemplated by the Legislature’s scheme.
3. Legislative history does not alter, but supports, this
interpretation
To the extent the statutory language might be deemed
ambiguous in this respect, nothing in the legislative history calls
into question this interpretation. A key analysis prepared by
the Senate Committee on the Judiciary revealed an
understanding and intent not to completely or categorically bar
such evidence, but instead, simply to extend the Legislature’s
earlier reforms governing criminal prosecution of sexual assault
crimes to the civil arena. (Sen. Com. on Judiciary, Analysis of
Sen. Bill No. 1057 (1985–1986 Reg. Sess.) as introduced Mar. 7,
1985, pp. 1–2 (hereinafter Senate Committee Analysis).) The
objective was to prevent “unjustified inquiry into the prior
conduct of sexual harassment complainants,” not to foreclose all
inquiry entirely. (Id. at p. 2, italics added.) The committee
analysis described the proposed legislation, and what eventually
was enacted as sections 1106 and 783, as designed to “control
unnecessary inquiry into the sexual lives of alleged harassment
victims,” to provide “some protection” to victims who faced
“unjustified intrusion into their personal lives,” and to “curb[]
such abuse.” (Sen. Com. Analysis, at p. 2, italics added.) The
same analysis cited and described two then-recent decisions —
United States District Court Judge Thelton Henderson’s opinion
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Opinion of the Court by Guerrero, C. J.
in Priest, supra, 98 F.R.D. 755 and the administrative decision
in Department of Fair Employment and Housing v. Fresno
Hilton Hotel (1984) No. 84-03, FEHC Precedential Decisions
1984–1985, CEB 2, p. 1 — and characterized them as
“[p]recedent for limiting inquiry.” (Sen. Com. Analysis, at p. 2,
italics added.) The committee analysis noted that, just as
criminal defendants remained able to attack the credibility of an
alleged victim by following specified procedures, so too would
civil defendants under the proposed legislation. (Id. at pp. 3–4.
The analysis observed that under the existing law governing
criminal cases, “specific instances of the complaining witness’
sexual conduct is generally not admissible to prove consent” (id.
at p. 4, italics added), and the proposed legislation “would
extend this protection to” civil victims. (Ibid.) Nevertheless, the
analysis stated, civil defendants, like criminal defendants,
would be permitted to introduce such evidence to “attack the
credibility of witnesses” under procedures that eventually would
be enacted as section 783. (Sen. Com. Analysis, at p. 4.) It
appears from this and related history materials that the
Legislature viewed the 1985 legislation as limiting — but not
categorically barring, nor as reserved for addressing “false
testimony” — evidence concerning a plaintiff victim’s sexual
conduct when offered to attack the credibility of the witness’s
testimony.
B. Did the Court of Appeal Properly Determine
That the Trial Court Essentially Complied with
Section 783?
As observed earlier, the Court of Appeal acknowledged the
trial court’s key errors with respect to sections 1106 and 783 —
namely, its failure to focus on those statutes, instead of
sections 1103 and 782, and its conclusion that, in any event, no
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shield law applies here because the 2013 molestation reflects
plaintiff’s involuntary sexual conduct. Yet, the appellate court
reasoned, it was “tasked with reviewing the court’s ruling — not
the rationale it used to get there.” (Doe, supra, 71 Cal.App.5th
at p. 241.) In that regard, the appellate court concluded, the
trial court ultimately “conducted a hearing as statutorily
required” under sections 1106 and 783. (Doe, at p. 235, italics
added; see also id. at pp. 240–241.)12 We do not agree with the
Court of Appeal that the trial court, in essence, conducted a
proper hearing under section 783.
As a preliminary matter, it is apparent from the record
that the trial court, having invested considerable resources over
nine days in the midst of the COVID-19 pandemic in the
challenging task of selecting 12 jurors and eight alternate
jurors, was understandably and indeed admirably focused on
expeditiously resolving numerous pretrial matters in order to
proceed with trial. But having erroneously found no shield
statute to be applicable, the trial court neglected to focus on, and
benefit from, the key procedural and structural protections set
out in section 783.
12
The Court of Appeal stated that “the trial court adhered to
all but one of the specific procedural requirements” of section 783.
(Doe, supra, 71 Cal.App.5th at p. 241.) Namely, the appellate court
acknowledged, the trial court did not require the District to
support its section 783 motion with an affidavit that includes an
offer of proof as required by section 783, subdivision (b). Instead,
as noted earlier, the District had made such an offer of proof via
its sealed declaration, which was submitted in support of its
“section 782” motion. When parties properly follow the dictates of
Code of Civil Procedure section 2015.5, a declaration would equally
satisfy the affidavit requirement of Evidence Code section 783.
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1. Failure to hold a hearing out of the presence of the
jury, allowing questioning of plaintiff regarding
the District’s offer of proof
The trial court did not hold a more robust “hearing out of
the presence of the jury,” at which it would “allow the
questioning of the plaintiff regarding the offer of proof made by
the defendant.” (§ 783, subd. (c), italics added.) Consequently,
the record reflects no information about the nature of the 2013
molestation, how the evidence regarding that molestation
compares with the evidence concerning the 2009–2010 abuse, or
how plaintiff might characterize and testify regarding those
events. Most significantly, such questioning of plaintiff would
have been expected to address the issue of whether she will
claim that 100 percent of her emotional distress damages is
attributable to the 2009–2010 Baldenebro abuse and none to
any other factor, including the 2013 molestation.
The Court of Appeal acknowledged that there had been no
such questioning of plaintiff, but reasoned that the parties must
have been aware of — and waived — that statutory right and
thus were not prejudiced. (Doe, supra, 71 Cal.App.5th at
p. 241.)13 We disagree with the appellate court’s analysis. The
initial issue at the trial court’s in limine hearing was the
applicability of the shield law. Once the court found the shield
law inapplicable, the parties had no reason or clear mechanism
13
The appellate court asserted: “There is nothing to indicate
that either party was denied its statutory right to
question . . . plaintiff at the hearing (§ 783, subd. (c)); because this
right exists whether a hearing is conducted under section 782 or
783, the parties were aware of this right when the court
erroneously invoked section 782, yet opted not to question
plaintiff.” (Doe, supra, 71 Cal.App.5th at p. 241.
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JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
to invoke their right to question plaintiff under that law. The
Court of Appeal erred in construing their failure to do so as a
waiver. Moreover, it is not apparent why the parties would have
waived such an opportunity to flesh out the record. Nor is it
evident why the trial court failed to prompt the parties to take
advantage of the statutory procedure in order to achieve clarity
in these crucial respects. But precisely because there was no
such elucidation on the record, the Court of Appeal found itself
forced to fill the gaps: The appellate court found it necessary to
assume that in fact plaintiff will testify that 100 percent of her
emotional distress damages is attributable to the 2009–2010
Baldenebro abuse and none to any other factor, including the
2013 molestation. (Doe, at p. 232.
2. Failure to make an order stating what evidence
may be introduced by the District and the nature of
the questions to be permitted
The trial court also failed to properly undertake to “make
an order stating what evidence may be introduced by the
defendant, and the nature of the questions to be permitted,”
which in turn would have allowed the District to later “offer
evidence pursuant to the order of the court.” (§ 783, subd. (d).
Consequently, the record reflects no understanding between the
court and the parties about the governing constraints on what
evidence may be introduced and what questions may be asked
regarding that evidence. Again, the Court of Appeal found itself
forced to address one of the consequences of this void by
characterizing the trial court’s ruling as ambiguous and then by
interpreting it “as admitting evidence of the 2013 molestation
solely for purposes of impeaching . . . plaintiff” regarding
damages. (Doe, supra, 71 Cal.App.5th at p. 241, italics added;
see also id. at p. 235.
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Opinion of the Court by Guerrero, C. J.
The record and briefing reflect a related problem flowing
from the trial court’s failure to pin down what evidence may be
introduced and what questions may be asked regarding the
evidence concerning the 2013 molestation. These omissions in
turn allowed the District to repeatedly change its legal
reasoning supporting relevance and admission of that evidence.
In the absence of any structured focusing and narrowing, the
District’s legal arguments throughout this litigation have been
an evolving target: (1) In the trial court, the District initially
asserted that it had no plan “to use the 2013 molestation
evidence to ‘attack the credibility’ of [plaintiff]” for impeachment
purposes. Still, the District maintained, that molestation
evidence is relevant “to establish an alternative explanation for
[plaintiff’s] psychological harm and condition,” and “[t]he 2013
incident . . . may be the cause of harm from 2013 forward.” (2) In
the hearing on its “section 782” motion, the District sought to
clarify that it did indeed seek to question plaintiff in order to
impeach her anticipated testimony concerning “concurrent
cause[s] of harm.” But, counsel for the District assured the trial
court, he intended to ask plaintiff simply if she was “the victim
of a sexual abuse episode” in 2013 — and no more. (3) The trial
court apparently understood the District as seeking to admit
evidence concerning plaintiff’s 2013 molestation as relevant
concerning only damages and via a single minimally invasive
question. And yet the District’s opening statement before the
jury was much more expansive, encouraging the panel to use the
evidence of the 2013 molestation to question the credibility of
petitioner’s description of the specific abuse by Baldenebro in
2009–2010. (4) Now, further expanding on the theme suggested
in its opening statement to the jury, in its answer brief filed in
this court, the District explains that it seeks to attack plaintiff’s
34
JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
credibility by additionally arguing that the 2013 molestation
caused her “chronic PTSD” and that this in turn has led plaintiff
to exaggerate her claims about what Baldenebro did to her. In
this regard, the District argues: “If what [plaintiff] claims
happened with Baldenebro did not actually happen because the
2013 trauma caused her to misremember or unintentionally
exaggerate the details, then her damages for what may actually
have occurred would be less.” In other words, the District now
asserts, the “evidence of [plaintiff’s] 2013 trauma is relevant to
her credibility because it significantly affects her capacity to
recollect what happened with Baldenebro and likely distorted
her memories.” (Italics added.
Although, as noted, the Court of Appeal characterized the
trial court as allowing the evidence for “impeachment purposes
only” (Doe, supra, 71 Cal.App.5th at p. 235; see also id. at
p. 241), the record before the trial court gives no indication that
it had in mind, and weighed or considered, the District’s evolved
and expansive understanding of the relevance and use of the
2013 molestation for any such impeachment.
Had the trial court thoroughly followed the procedures set
out in section 783, subdivision (c), and then issued an order as
contemplated by subdivision (d), specifying what evidence may
be introduced by the District and the nature of permissible
questions, the District would have been constrained to proceed
accordingly. But in the absence of clear guardrails, the District
has substantially augmented its legal theories concerning the
scope and nature of its proposed impeachment as the litigation
has continued. At the same time, plaintiff was left in danger of
what the statute was designed to avoid — unjustified and
uncircumscribed intrusion into her privacy in the immediate
presence of the jury.
35
JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
For these reasons, we disagree with the Court of Appeal’s
conclusion that the trial court essentially undertook a proper
inquiry and analysis “as statutorily required” (Doe, supra,
71 Cal.App.5th at p. 235) under sections 1106 and 783. We must
direct the appellate court to remand for such a hearing.
C. Should We Nevertheless Affirm the Trial
Court’s Finding That the Challenged Evidence
Is Admissible Under Section 352?
The District urges us to uphold the Court of Appeal’s
determination that the trial court ultimately properly exercised
its discretion under section 352. We decline to do so for three
reasons.
First, as indicated above, the record was not developed in
accordance with the procedures contemplated by sections 1106
and 783. The Court of Appeal found it necessary to fill gaps by
making key assumptions about plaintiff’s anticipated testimony
and the scope of the trial court’s evidentiary ruling. We will not
indulge such assumptions, and we decline to rule on the trial
court’s section 352 determination pending further proceedings
on remand.
Second, and somewhat related to the above-described
record problem, the District’s evolved and expanded position
concerning the relevance and use of the evidence regarding the
2013 molestation greatly complicates any attempt at this stage
to assess the trial court’s section 352 determination. As noted,
the trial court does not appear to have apprehended or
considered the District’s newly advanced argument that
evidence regarding the 2013 molestation may be used to
impeach plaintiff’s credibility not only with respect to her
apportionment of harm related to her emotional distress, but
36
JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
also with respect to her recollection and description of the
specific abuse by Baldenebro. Yet in shifting theories the
District has created an insurmountable problem for itself: We
cannot assess the trial court’s section 352 determination in
relation to legal arguments that were not presented to and
considered by that court.
Finally, even if we were to ignore the District’s new theory
of relevance concerning impeachment and instead confine
ourselves (as the Court of Appeal appears to have done) to
assuming that the trial court considered and approved the
evidence regarding the 2013 molestation solely for purposes of
impeachment of plaintiff related exclusively to her anticipated
apportionment of 100 percent of her emotional distress damages
to the Baldenebro abuse, on this record we would not be able to
agree with the appellate court’s affirmance of the trial court’s
section 352 ruling. As explained below, it appears that the trial
court viewed the inquiry into prejudicial effect under section 352
as posing a mere garden-variety evidentiary question, without
bearing in mind the applicable special considerations governing
that inquiry in the current setting.
As we observed in Fontana, supra, 49 Cal.4th 351
(regarding the original rape shield statutes, §§ 1103 and 782), it
is proper for a trial court to take into account, when
“ ‘determining the amount of unfair prejudice’ ” under
section 352, that “the policy of the [original] rape shield law [is]
‘to guard against unwarranted intrusion into the victim’s
private life.’ ” (Fontana, at p. 370, quoting U.S. v. One Feather
(8th Cir. 1983) 702 F.2d 737, 739.) The appellate decisions
applying the criminal rape shield statutes have honored this
policy by emphasizing that discovery or admission should be
subject to especially careful scrutiny in order to avoid
37
JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
unwarranted intrusion into a victim’s private life. They have
stressed that courts should sparingly and narrowly use their
discretion to admit such evidence (see, e.g., Chandler, supra,
56 Cal.App.4th at p. 708) and must be careful to avoid
“admitting otherwise inadmissible evidence” (Rioz, supra,
161 Cal.App.3d at p. 919).
These principles — highlighted in Fontana, supra,
49 Cal.4th 351 and embraced in the aforementioned criminal
cases — operate with at least equal force when, as here, a court
must apply sections 1106 and 783. As noted earlier, the
Legislature enacted these statutes with an accompanying
uncodified statement of intent (Stats. 1985, ch. 1328, § 1,
pp. 4654–4655; set out and quoted ante, pt. II.), reflecting its
protective view of civil victim witnesses. Of course, “An
uncodified section is part of the statutory law. [Citation.] ‘In
considering the purpose of legislation, statements of the intent
of the enacting body contained in a preamble, while not
conclusive, are entitled to consideration. [Citations.] Although
such statements in an uncodified section do not confer power,
determine rights, or enlarge the scope of a measure, they
properly may be utilized as an aid in construing a statute.’ ”
(Carter v. California Dept. of Veteran Affairs (2006) 38 Cal.4th
914, 925.) Consistent with this, decisions applying the civil
shield statutes in the context of discovery have quoted the
Legislature’s uncodified statement of intent in enacting them
and, correspondingly, stressed the need to carefully
circumscribe such discovery. In Vinson, supra, 43 Cal.3d 833,
we viewed the Legislature’s uncodified statements, including
the “extraordinary circumstances” language, as “suggest[ing]
that a stronger showing of good cause [for discovery] must be
made to justify inquiry into this topic than is needed for a
38
JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
general examination.” (Id. at p. 843, fn. 8, italics added.
Subsequent Court of Appeal decisions have similarly treated
this and the Legislature’s related uncodified passages as an aid
in construing the statutory scheme, reflecting a general
admonition that courts should exercise great care and caution
in considering whether to allow such discovery and avoid
admitting otherwise inadmissible evidence. (Barrenda L.,
supra, 65 Cal.App.4th at p. 801; Knoettgen, supra,
224 Cal.App.3d at pp. 14–15.)14
And yet the record does not indicate that the trial court
approached its analysis concerning prejudicial effect under
section 352 with the solicitude that we contemplated in
Fontana, supra, 49 Cal.4th at page 370, by keeping in mind “the
policy of . . . ‘guard[ing] against unwarranted intrusion into the
victim’s private life.’ ” Nor does the record reflect that the trial
court or the Court of Appeal conducted an appropriate
section 352 analysis under the applicable civil law statutes,
sections 1106 and 783.
As a general matter, section 352 is concerned with how
certain evidence might skew a jury’s logical and dispassionate
14
In this regard we decline to endorse certain language in
Mendez, supra, 206 Cal.App.3d at pages 572–573, upon which
plaintiff extensively relies. In the course of affirming a denial of
civil discovery concerning sexual assault, the Court of Appeal in
Mendez focused on the Legislature’s uncodified “extraordinary
circumstances” language and concluded that a “defendant must
demonstrate some extraordinary circumstance attendant to [the]
plaintiff’s claim” before such discovery may be allowed. (Mendez,
at p. 573.) As explained above, we view the Legislature’s
uncodified language not as imposing a standard or condition for
discovery or admission, but as an interpretive aid in construing the
statutory scheme.
39
JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
consideration of evidence, or otherwise contribute confusion to
or delay a trial. In this respect, section 352 requires courts to
consider, in part, whether the evidence in question might
unduly prejudice the party against whom it is offered. (See
generally Simons, Cal. Evidence Manual (Dec. 2022) § 1:25 et
seq. [hereinafter California Evidence Manual].)15
But sections 1103 and 1106 address an additional concern.
In these particularly delicate circumstances, whether criminal
or civil, a trial court must do more than simply weigh potential
prejudice to the objecting party with the goal of insulating the
jury from distraction or exposure to inflammatory evidence of
limited value. These statutes, and corresponding sections 782
and 783, focus on a different kind of prejudice: that suffered by
complainants who may experience harassment and intimidation
related to discovery regarding — and potential introduction of
evidence concerning — specific events in their private lives.
Of course, multiple interests are implicated in this
context. A defendant has a right to a fair adjudication and to
counter a plaintiff’s evidence. And a complainant has a right to
privacy and freedom from harassment. Sections 782 and 783
15
As we have observed, section 352 uses the word “prejudice”
“ ‘in its etymological sense of “prejudging” a person or cause on
the basis of extraneous factors.’ ” (People v. Zapien (1993
4 Cal.4th 929, 958; see also Vorse v. Sarasy (1997
53 Cal.App.4th 998, 1009 [“[E]vidence should be excluded as
unduly prejudicial when it is of such nature as to inflame the
emotions of the jur[ors], motivating them to use the information,
not to logically evaluate the point upon which it is relevant, but
to reward or punish one side because of the jurors’ emotional
reaction. In such a circumstance, the evidence is unduly
prejudicial because of the substantial likelihood the jury will use
it for an illegitimate purpose”].
40
JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
articulate specific procedures designed to balance and protect
the potentially conflicting rights of both the complainant and
the defendant. These procedures require a broader section 352
inquiry compared with the garden-variety weighing
contemplated under that statute in isolation. In such cases the
trial court must not simply assess the potential for prejudice to
the party against whom the evidence is offered, but also
undertake a more probing inquiry by considering whether the
discovery or adjudication process is being used to harass,
intimidate, or unduly invade the privacy of the complainant. In
doing so, a trial court must bear in mind its obligation to act as
a gatekeeper, and to be guided by the Legislature’s special
statements concerning the purpose of the shield provisions: to
protect a victim’s right of privacy and prevent unnecessary
intrusion into complainants’ personal sexual lives both in civil
discovery and in civil judicial proceedings. (Stats. 1985,
ch. 1328, § 1, pp. 4654–4655; see also California Evidence
Manual, supra, § 1:30 [observing that the Legislature commonly
uses § 352 “to reinforce the goals of those code provisions” —
such as §§ 1103 and 1106 — “which exclude relevant evidence
due to some extrinsic policy”].) In this respect, when balancing
the probative and prejudicial value of sexual conduct evidence,
trial courts should consider allowing only limited, minimally
invasive questioning — or permitting the parties to stipulate to
facts concerning the sexual conduct.
In light of our understanding of section 352 as it applies
in this setting, we do not agree with the Court of Appeal’s
conclusion that the trial court ultimately “applied the same
section 352 analysis called for by” the pertinent shield statutes.
(Doe, supra, 71 Cal.App.5th at p. 235, italics added.) Nor if we
were to reach the issue would we be able to conclude on this
41
JANE S.D. DOE v. SUPERIOR COURT
Opinion of the Court by Guerrero, C. J.
record, as the Court of Appeal did, that the trial court properly
exercised its discretion in finding the evidence regarding the
2013 molestation to be admissible under section 352.
IV. CONCLUSION
We reverse the judgment of the Court of Appeal and
remand with directions that it remand to the trial court to
undertake proper proceedings under Evidence Code
sections 1106 and 783. If, in the course of those future
proceedings, the District attempts to advance its evolved and
expansive arguments regarding the relevance and use of the
evidence concerning the 2013 molestation for impeachment, the
trial court will have an opportunity to consider that issue as
well. In any event, we expect the trial court to engage in the
structured focusing and narrowing contemplated by section 783,
and, if after further consideration it allows evidence concerning
the 2013 molestation, to specify what evidence may be
introduced and what questions may be asked, thus clarifying
what may be presented to the jury. Thereafter, if the previously
empaneled jury remains constituted (as we were informed at
oral argument it does), the trial court will be expected to proceed
as appropriate in that regard.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
42
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Jane S.D. Doe v. Superior Court
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 71 Cal.App.5th 227
Review Granted (unpublished)
Rehearing Granted
Opinion No. S272166
Date Filed: July 27, 2023
Court: Superior
County: Los Angeles
Judge: Mary Ann Murphy
Counsel:
Carrillo Law Firm, Luis A. Carrillo, Michael S. Carrillo, Laura M.
Jimenez; The Senators (Ret.) Firm, Ronald T. Labriola; Esner, Chang
& Boyer, Stuart B. Esner, Holly N. Boyer and Kevin K. Nguyen for
Petitioners.
Arbogast Law and David M. Arbogast for Consumer Attorneys of
California as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Lann G. McIntyre,
Dana Alden Fox, Gregory M. Ryan, Edward E. Ward, Jr., and Wendy
S. Dowse for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Holly N. Boyer
Esner, Chang & Boyer LLP
234 East Colorado Boulevard, Suite 975
Pasadena, CA 91101
(626) 535-9860
Lann G. McIntyre
Lewis Brisbois Bisgaard & Smith LLP
550 West C Street, Suite 1700
San Diego, CA 92101
(619) 699-4976
Opinion Information
| Date: | Docket Number: |
| Thu, 07/27/2023 | S272166 |
