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.
1

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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2

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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3

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 midJuly 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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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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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 thenrecent 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 abovedescribed 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 quasijudicial 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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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.

19

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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20

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.

21

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.

22

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.

23

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.

24

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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Opinion of the Court by Guerrero, C. J.

25

(governing discovery; see ante, fn. 6) — each call “for a case-bycase 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-bycase 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.

26

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.

27

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.

28

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.

29

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.

30

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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31

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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32

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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Opinion of the Court by Guerrero, C. J.

33

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.

34

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 
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Opinion of the Court by Guerrero, C. J.

35

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. 
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Opinion of the Court by Guerrero, C. J.

36

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 
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Opinion of the Court by Guerrero, C. J.

37

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 
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Opinion of the Court by Guerrero, C. J.

38

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 
JANE S.D. DOE v. SUPERIOR COURT

Opinion of the Court by Guerrero, C. J.

39

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. 
JANE S.D. DOE v. SUPERIOR COURT

Opinion of the Court by Guerrero, C. J.

40

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”].) 
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Opinion of the Court by Guerrero, C. J.

41

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 
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Opinion of the Court by Guerrero, C. J.

42

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.
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