Filed 10/7/15 Unmodified opinion attached

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

S.M., a Minor, etc.,

Plaintiff and Appellant,

v.

LOS ANGELES UNIFIED SCHOOL 

DISTRICT,

Defendant and Respondent.

 B253983

 (Los Angeles County

 Super. Ct. No. BC477194)

 ORDER MODIFYING OPINION

 AND DENYING PETITION FOR

 REHEARING

 [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on September 16, 2015, be modified as 

follows on page 16, line 8 to read: 

Under the facts of this case, plaintiff was required to show only that Hermida 

had the potential to sexually abuse minors.

Petition for Rehearing is denied. No change in judgment.

________________________________________________________________________

KIRSCHNER, J. KRIEGLER, Acting P.J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
Filed 9/16/15 Unmodified opinion

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

S.M., a Minor, etc., 

Plaintiff and Appellant,

v.

LOS ANGELES UNIFIED SCHOOL 

DISTRICT,

Defendant and Respondent.

 B253983

 (Los Angeles County

 Super. Ct. No. BC477194)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Lawrence H. Cho, Judge. Reversed and remanded. 

Perez & Caballero, Frank J. Perez and Miguel G. Caballero; Law Office of Shea S. 

Murphy, Shea S. Murphy; Esner, Chang & Boyer, Stuart B. Esner and Holly N. Boyer for 

Plaintiff and Appellant.

Horvitz & Levy, H. Thomas Watson and Karen M. Bray; Andrade Gonzalez, 

Sean A. Andrade for Defendant and Respondent.
2

This appeal is brought by S.M. (plaintiff) from a judgment in favor of the Los 

Angeles Unified School District (the District) on a cause of action for negligent 

supervision of a teacher employed by the District, who sexually abused plaintiff on and 

off campus over several months while she was attending Edison Middle School (the 

school). We reverse the judgment and remand the matter for a new trial.

STATEMENT OF CONTENTIONS

Plaintiff appeals from the judgment in favor of defendant, the District, contending 

the court erred prejudicially by (1) modifying CACI No. 426 to require plaintiff to prove 

that her teacher had displayed a “dangerous propensity to sexually abuse minors;” (2) 

permitting admission of evidence of plaintiff’s sexual history; (3) instructing the jury that 

plaintiff could be found comparatively at fault if she “consented” to sex with her teacher; 

(4) instructing the jury that the teacher’s intentional torts against plaintiff could be a 

superseding cause of her injuries; and (5) instructing the jury on discretionary immunity. 

FACTS

a. Undisputed Facts Concerning the Sexual Abuse of Plaintiff

In the fall of 2010, plaintiff was a thirteen-year-old student in the eighth grade at 

the school. Her math teacher was Elkis Hermida (Hermida). In October 2010, Hermida 

invited plaintiff to be friends on a social networking site. Soon, the two began 

exchanging direct text messages on their cell phones. Over time, the messages turned 

sexual. Plaintiff turned 14 on December 13, 2010. 

In late 2010 or early 2011, Hermida told plaintiff to come to his classroom during 

his conference period when he did not have class. He told her to tell her teacher that she 

had to use the bathroom. She complied. When plaintiff entered Hermida’s classroom, he 

told her to shut the door. He hugged and kissed her. 

About a week later, Hermida again texted plaintiff and told her to come to his 

classroom. She complied, and he again kissed her.
3

Hermida subsequently approached plaintiff at her desk at the end of math class 

and told her that she needed to stay after class. He dismissed the other students, closed 

the door and kissed her. He told her that he wanted to have sex with her.

On March 12, 2011, plaintiff told her mother that she was going to a friend’s 

house. However, plaintiff left the friend’s house and met Hermida across the street from 

the school. He drove her to a motel where they had sexual intercourse. 

They also had sexual intercourse at the school. Hermida texted plaintiff and told 

her to come to his classroom. He had arranged the furniture in the classroom so that they 

could have sex in a hidden alcove in the room and no one would see them. They had oral 

and vaginal sex in the classroom with the door closed.

The next time they had sexual intercourse was on a Saturday at a motel. Hermida 

told her that they were not in a relationship but were just having sex. At this point, 

plaintiff wanted to stop having sexual intercourse with Hermida, but did not feel that she 

was free to do so.

The fourth time they had sexual intercourse was also at a motel. Hermida wanted 

to have anal sex. Plaintiff objected, but Hermida inserted something into her anus 

anyway.

During the time that Hermida and plaintiff were having sexual intercourse, 

Hermida sent nude photographs of himself to plaintiff. He requested and received nude 

photos of plaintiff. At one point he sent her a video of him masturbating.

In May 2011, one of plaintiff’s friends told a teacher about the relationship 

between plaintiff and Hermida. The teacher reported the abuse the next day.

Hermida was promptly arrested. He pled no contest to one count of lewd acts

upon a victim aged 14 in violation of Penal Code section1 288, subdivision (c)(1) and 

served time in prison. 

 

1 All further unspecified references are to the Penal Code.
4

b. Hermida’s Conduct at School

The District’s “Code of Conduct with Students” provides that “[t]he most 

important responsibility of the . . . (District) is the safety of our students.” The Code of 

Conduct states: “All employees, as well as all individuals who work with or have contact 

with students, are reminded that they must be mindful of the fine line drawn between 

being sensitive to and supportive of students and a possible or perceived breach of 

responsible, ethical behavior.” The Code of Conduct outlines certain conduct, which 

teachers are “cautioned to avoid,” including “[e]ngaging in any behaviors, either directly 

or indirectly with a student(s) or in the presence of a student(s), that are unprofessional, 

unethical, illegal, immoral, or exploitive” as well as “[t]ouching or having physical 

contact with a student(s) that is not age-appropriate or within the scope of the 

employee’s/individual’s responsibilities and/or duties.” 

The Code of Conduct further provides: “Even though the intent of the 

employee/individual may be purely professional, those who engage in any of the above 

behavior(s), either directly or indirectly with a student(s) or in the presence of a 

student(s), are subjecting themselves to all possible perceptions of impropriety. 

Employees/individuals are advised that, when allegations of inappropriate conduct or 

behavior are made, the District is obligated to investigate the allegations, and, if 

warranted, take appropriate administrative and/or disciplined [sic] action.” 

While the District presented evidence that these were only “guidelines” for 

teachers, which was disputed by other testimony, Vice Principal Garcia testified that if it 

is reported that a teacher has violated one of the behaviors advised against in the Code of 

Conduct, the District is obligated to “meet with the individual at that time and find out 

the facts of what the allegations are.” Garcia testified that if someone had reported to an 

administrator an appearance of impropriety, the District would have to investigate the 

claim, which would include interviewing the teacher, the victim, witnesses, and other 

individuals, as well as gathering information in order to determine the truth of the 

allegation. 
5

Plaintiff presented several instances of conduct by Hermida which she contended 

violated the Code of Conduct, were “red flags” and should have alerted the District that 

Hermida posed a risk of harm to students.

i. Classroom atmosphere

Ruby A., who was in plaintiff’s eighth grade class, testified that Hermida would 

often talk about his personal life, including drinking, going out with friends, problems 

with his girlfriend, and other topics with Ruby and her girlfriends. Ruby also testified 

that she repeatedly saw Hermida acting inappropriately with female students during his 

after school math tutoring sessions. She saw Hermida touching or caressing the hands of 

female students in a sexual way. 

Fraulein Manligas, a teacher at the school, testified that some of her female 

students told her that they thought Hermida was cute. Manligas also testified that when 

she would walk by Hermida’s afternoon tutoring sessions, she noticed it was mostly girls 

in his classroom. Manligas and other teachers “had a general agreement that he had a lot 

of girls in his room.” She further testified that too many girls in a classroom may have 

looked bad for Hermida’s reputation. When asked why she never reported this, Manligas 

testified: “Why would I report a lot of girls in his tutoring, as something that’s 

improper? . . . [T]hat’s not child abuse.” 

ii. Hugging

Several students, including Ruby, testified that Hermida would regularly hug 

certain girls as they came into his classroom. Jean C., who was in plaintiff’s class, 

testified that he saw Hermida hugging girls during passing periods, lunch break and in 

class. Hermida would only hug some of the girls. Jean stated that Hermida would hug 

the girls every day, and that he did it in front of other teachers and students. According to 

Jean, Mr. Agawal, whose classroom was directly across the hall from Hermida’s 

classroom, was sometimes in the hallway when Hermida was hugging girls. 
6

Ruby explained that Hermida’s hugs with female students were “face to face” with 

both arms around the girls. She explained that as she was going to the classroom next 

door, she would witness him openly hugging girls as they came into his classroom. 

When asked what she thought of this, she said it was not right “[b]ecause he was the only 

teacher doing it.” 

Ruby also testified Ms. La Conde and Agawal were present in the hallway when 

Hermida hugged girls. Once, Hermida hugged plaintiff in the hallway while in the 

middle of a conversation with Agawal. Ruby estimated that she saw Hermida hug 

plaintiff more than ten times at school. 

Hermida himself admitted that he routinely hugged girls as they came into his 

classroom during passing period and other teachers were in the hallway when he engaged 

in such behavior. He further testified that no one from the school ever said anything to 

him about such behavior. 

Evidence at trial revealed that teachers were required to stand outside their 

classrooms during passing period. The District presented evidence that neither La Conde 

nor Agawal saw Hermida hugging female students. 

Vice Principal Garcia testified that if a teacher had witnessed another teacher 

hugging students on a regular basis as they entered the classroom, such conduct would be 

inappropriate and should have been reported to an administrator. He also testified that if 

a teacher routinely hugged students entering the classroom, such behavior would violate 

the Code of Conduct. 

iii. Lying on classroom table

Andrea Mordoh, a teacher at the school, testified that she witnessed 

“unprofessional” conduct by Hermida and reported it to the school principal, Coleen 

Kaiwi. Mordoh explained that as she was walking by his classroom, she saw Hermida 

“lying on his back on one table and he had his cell phone. To me, it looked like he was 

texting. And there were two female students sitting at the table next to the table he was 
7

lying on, and they were working on something or talking.” Mordoh testified that she felt 

the conduct was unprofessional. She noted that the fact that it was two female students, 

and not a mix of male and female students, alarmed her and gave rise to the appearance 

of impropriety. Mordoh later told her lunch group, which consisted of three other 

teachers at the school, of Hermida’s inappropriate conduct. 

Mordoh testified that the conduct she witnessed with Hermida lying on his back in 

his classroom with female students was conduct falling within the provision of the Code 

of Conduct prohibiting employees from engaging in behavior that is “unprofessional, 

unethical, illegal, immoral, or exploitive.” 

The District never conducted any investigation following Mordoh’s report of 

unprofessional conduct by Hermida. Principal Kaiwi never talked to Hermida about the 

incident and testified that she does not remember receiving such a report from Mordoh. 

iv. Furniture arrangement

Hermida admitted that before he had sex with plaintiff, he rearranged the furniture 

in his classroom which created a hidden alcove. He kept his furniture in this arrangement 

through the spring semester. The layout of the furniture and the hidden alcove would 

have been visible to others visiting his classroom. Hermida stated that he received 

comments from coworkers about the furniture layout. According to Hermida, he was 

also often visited by school administrators during the time when the hidden alcove 

existed. It was in this hidden alcove that Hermida actually had sex with plaintiff. 

Vice Principal Garcia testified that if a teacher arranged the furniture in his or her 

classroom such that a hidden alcove was created, such behavior would be inappropriate 

and unacceptable and would necessitate a discussion with the teacher to dismantle the 

hidden area. 

The District put on evidence that at the school there were formal and informal 

pop-ins of the classrooms. Informal pop-ins are not recorded. Principal Kaiwi testified 

that while she is positive she visited Hermida’s class for an observation, she had no 
8

record of it. She also did not recall if she ever informally observed Hermida during his 

after school tutoring sessions. Vice Principal Garcia testified that he popped into 

Hermida’s classroom once or twice during the time when Hermida was a teacher at the 

school. 

c. School Experts

Plaintiff’s school safety expert, Davis Cowles, testified that in his opinion “even 

though the District had good guidelines and a good code of conduct in place, they didn’t 

place a high priority on the potential for teacher misconduct towards students. And I felt 

that had that been in place, been a more important priority for the administration, that this 

whole thing may have been avoided.” 

Cowles testified that there were several red flags—the fact that Hermida openly 

hugged female students, his rearrangement of the furniture in his classroom, and the 

incident reported by Mordoh where he was inappropriately lying on the desk with two 

female students—which should have been addressed by the District either with 

heightened supervision of Hermida or at least a discussion with him about appropriate 

conduct. 

Cowles explained that the District “allowed an environment where the potential 

for this kind of misconduct could take place.” For example, despite the fact that a student 

and teacher should not be alone in a classroom with the door shut, an act prohibited by 

the Code of Conduct, the school administrators were not concerned with such behavior 

and did not really enforce this prohibition. This lack of concern was shown in Vice 

Principal Garcia’s testimony that he did not believe that a teacher alone with a student in 

a classroom with the door closed was a violation of the Code of Conduct. 

A lack of concern was also shown by Principal Kaiwi’s testimony that there was 

no rule against a teacher closing and locking their door during a conference period. 

Principal Kaiwi testified that if she passed a classroom where the teacher had locked the 

door, it would not raise any red flags to her. When asked if it would cause her concern if 
9

she were to open a locked classroom and discover the teacher was alone with a student in 

the room, she testified: “Well, it would concern me to the point where I would think I 

was interrupting a private conversation.” 

The District’s school supervision expert, Edward Sussman, testified that the 

District “reasonably supervised . . . Hermida and the plaintiff at the time of the sexual 

relationship, that they—the school—had no prior knowledge there was any relationship 

between the plaintiff and . . . Hermida, and that they had kept their relationship a 

complete secret.” He stated that “in my opinion, it is very difficult, if not impossible, to 

determine if two people, whether it be students, teachers, or student-teacher relationship 

that want to disregard rules and behaviors, it’s almost impossible for the school to really 

do anything about it unless they know this is going on.” 

Sussman testified that teachers “must” adhere to the bullet points describing the 

inappropriate behavior in the Code of Conduct. He agreed that under the Code of 

Conduct, the District must investigate allegations of inappropriate conduct. Although 

Sussman at times contradicted his own testimony, stating at one point that the Code of 

Conduct was merely a guideline and not a set of prohibitions, he later agreed that 

behavior described in the Code of Conduct referring to a teacher not engaging in conduct 

that is “unprofessional, unethical, illegal, immoral, or exploitative” is “obviously 

something that you need to follow.” He further clarified that nothing says that the 

inappropriate conduct must be “sexual” to trigger an investigation. 

d. Damages

At trial, plaintiff described the emotional distress she suffered and continues to 

suffer as a result of the abuse. 

Dr. Lilli Friedland, a board certified psychologist, elaborated on plaintiff’s 

testimony, explaining that although plaintiff had already received some counseling for the 

abuse, she will need further therapy throughout her life. Dr. Friedland testified, “because 

she’s so not used to thinking about what’s going on inside of her. She’s usually thinking 
10

of focusing on the other person. So she will need a great deal of psychological help right 

now. And almost definitely, without any reasonable doubt, she will need it at different 

periods of time in her life when she encounters other developmental stages and other 

situations.” 

Dr. Friedland further explained that aspects of plaintiff’s personality, her 

obedience to authority, and her loneliness (caused by changing schools and being teased)

made her vulnerable to this type of abuse. Dr. Friedland testified that, “she was brought 

up to believe in authority and this man—and power. She adored him. He really listened 

to her.” “[Hermida] made all the overtures. He was the one who initiated the personal 

discussions and the personal examples and telling of secrets. He made all the plans.” 

The detective that interviewed plaintiff and conducted the investigation into the abuse 

testified that he would refer to Hermida’s conduct—his behavior as a school teacher, as 

somebody in a position of trust, who befriends a child in order to then sexually abuse the 

child—as grooming. 

Dr. Stan Katz, the clinical and forensic psychologist hired by the District, 

presented a contrary view of plaintiff’s damages, testifying that “there was no indication 

in any of the data that . . . she . . . experienced a life-threatening event.” Dr. Katz testified 

that he believed the relationship made plaintiff more mature. “It always matures 

someone because you have to go through experiences which most teenagers don’t have to 

deal with. So you learn by experience.” When asked his opinion as to plaintiff’s future 

prognosis, he stated that plaintiff is doing “quite well” and likely will not need future 

counseling as a result of the abuse. 

e. Verdict

After a two week trial, the jury returned a verdict in the District’s favor. As to the 

first question, which asked “[w]as defendant . . . District negligent?” the jury answered 

“No” by a vote of ten to two. 

Judgment was entered for the District, and this appeal timely followed. 
11

CONTENTIONS ON APPEAL

a. Instructions Concerning Negligent Supervision

Plaintiff contends the trial court erred in modifying CACI No. 426 concerning 

negligent hiring, supervision or retention of an employee to require plaintiff to prove that 

Hermida had a “dangerous propensity to sexually abuse minors.” Respondent contends 

that plaintiff is barred from raising this claim by the doctrine of invited error. We see no 

bar to plaintiff’s claim. We agree the trial court erred prejudicially. Plaintiff was only 

required to prove that Hermida had the potential to sexually abuse minors, not a 

“propensity” to do so.

i. Instruction

The standard version of CACI No. 426 provides:

“[Name of plaintiff] claims that [he/she] was harmed by [name of employee] and 

that [name of employer defendant] is responsible for that harm because [name of 

employer defendant] negligently [hired/ supervised/ [or] retained] [name of employee]. 

To establish this claim, [name of plaintiff] must prove all of the following:

1) That [name of employee] was [unfit/ [or] incompetent] to perform the work for 

which [he/she] was hired;

2) That [name of employer defendant] knew or should have known that [name of 

employee] was [unfit/ [or] incompetent] and that this [unfitness/ [or] incompetence] 

created a particular risk to others;

3) That [name of employee]’s [unfitness/ [or] incompetence] harmed [name of 

plaintiff]; and

4) That [name of employer defendant]’s negligence in [hiring/ supervising/ [or] 

retaining] [name of employee] was a substantial factor in causing [name of plaintiff]'s 

harm.

The trial court replaced the phrase “unfit/[or] incompetent” with the phrase 

“dangerous propensity to sexually abuse minors[.]” 
12

ii. Invited error

The invited error doctrine bars a party from challenging an instruction to which 

the party stated it had no objection. (Electronic Equipment Express, Inc. v. Donald H. 

Seiler & Co. (1981) 122 Cal.App.3d 834, 856.) That did not occur here.

The District sought two changes to CACI No. 426, arguing that the “knew or 

should have known” requirement in the instruction should be changed to the higher 

standard of “knew or had reason to know” and the general term “unfit” should be 

changed to require prior acts of sexual misconduct. The arguments were not unrelated. 

As the court recognized, in situations requiring a “had reason to know standard,” the prior 

conduct giving rise to a “reason to know” had to be unambiguous. In this context, that 

would mean prior acts of sexual misconduct. The court found, however, that the 

appropriate standard in this case was “should have known.” The District submitted on 

that ruling, but continued to argue vigorously for “unfit” to be replaced by “had 

committed prior acts of sexual misconduct.”

Plaintiff argued repeatedly that the “unfit” language of the instruction was clear 

and did not need to be modified. She argued, “It’s my position that 426 adequately 

discussed the law. There is nothing confusing about it that would confuse the jury or 

mislead the jury. . . . ” “CACI is very well thought out. CACI is—the Judicial 

Council. . . . And this is what they came up with based on the interpretation of the law as 

it stands, Your Honor.” “It’s up to the jury to define fit or unfit, Your Honor.” Although 

plaintiff occasionally stated during argument about this jury instruction her belief that 

Hermida had exhibited a “propensity” for sexual misconduct, at no point did she concede 

that the law required her to prove that Hermida exhibited such conduct as an element of 

her claim. To the contrary, she specifically argued that the law did not require her “to 

show the propensity to have sexual misconduct. It doesn’t say the propensity to do any 

specific conduct.” 

The court found that applicable law was contained in C.A. v. William S. Hart 

Union High School District (2012) 53 Cal.4th 861 (C.A.) and In re Veronica G. (2007) 
13

157 Cal.App.4th 179 and that the District “knew or should have known about this 

particular risk is what the law mandates.” At the end of argument, the court ruled that it 

was going to change CACI No. 426 and was going to “try to track the language of C.A. 

[v.] William Hart as close as I can in crafting my own version of 426. . . . ” The court 

stated that it would give the modified version of the instruction to the parties later.

When the parties were later given the court’s modified version of CACI No. 426, 

that instruction in fact used the “dangerous propensity” language taken from C.A. 

Plaintiff did not object. Since plaintiff had already argued that such language was not 

required, her acquiescence to the instruction does not support a finding of waiver, 

forfeiture or invited error. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-

213 [“‘“An attorney who submits to the authority of an erroneous, adverse ruling after 

making appropriate objections or motions, does not waive the error in the ruling by 

proceeding in accordance therewith and endeavoring to make the best of a bad situation 

for which he was not responsible”’”].)

iii. Modification

“When a party challenges a particular jury instruction as being incorrect or 

incomplete, ‘we evaluate the instructions given as a whole, not in isolation.’ (People v. 

Rundle (2008) 43 Cal.4th 76, 149.) ‘“ For ambiguous instructions, the test is whether 

there is a reasonable likelihood that the jury misunderstood and misapplied the 

instruction.”’ (Ibid.) The propriety of jury instructions is a question of law that we 

review de novo.” (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 

72, 82.)

Here, the harm that plaintiff suffered was sexual abuse. There must be a nexus in 

the instruction between the harm suffered by plaintiff and the unfitness of Hermida as a 

teacher. The trial court correctly ruled that plaintiff was not required to show that 

Hermida was unfit to be a teacher because he had committed prior acts of sexual 
14

misconduct. The trial court undercut its ruling, however, when it defined Hermida’s 

unfitness as a “dangerous propensity to sexually abuse minors.”

There is a reasonable probability that the jury misunderstood the propensity phrase 

to require prior acts of sexual misconduct. A common meaning of propensity is “a 

disposition to behave in a certain way.” (American Heritage Dictionary (2011) 

<www.thefreedictionary.com> [as of Sept. 8, 2015].) “If you have a propensity for 

something, then it’s something that comes naturally to you or something you just do a 

lot.” (Vocabulary.com (2015) <www.vocabulary.com> [as of Sept. 8, 2015], italics 

added.) Thus, the use of the phrase “propensity to sexually abuse minors” strongly 

indicates that sexually abusing minors was something that Hermida did with some 

frequency. This is more than the law required plaintiff to prove.2 Plaintiff was only 

required to prove that Hermida had the potential for sexually abusing minors.

The District contends the use of the phrase “propensity” was not misleading when 

considered with several other instructions which correctly state general principles of tort 

law, such as “[f]oreseeability is determined in light of all the circumstances and does not 

require prior identical acts or injuries,” and a school district may be liable if “it knew or 

should have known that the teacher posed a foreseeable risk of harm to students.” The 

 

2

In C.A., upon which the trial court relied for the propensity language, the plaintiff 

alleged that the school counselor who abused him had engaged in unlawful sexuallyrelated conduct with minors in the past and the school district knew or should have 

known or were put on notice of the counselor’s past sexual abuse of minors and her 

“propensity and disposition” to engage in such abuse. (C.A., supra, 53 Cal.4th at p. 866.) 

The issue before the Supreme Court in C.A. was whether the plaintiff’s theory of liability 

for negligent hiring, retention and supervision was a legally viable one. The court 

concluded that “a public school district may be vicariously liable under section 815.2 for 

the negligence of administrators or supervisors in hiring, supervising and retaining a 

school employee who sexually harasses and abuses a student. Whether plaintiff in this 

case can prove the District’s administrative or supervisory personnel were actually 

negligent in this respect is not a question we address in this appeal from dismissal on the 

sustaining of a demurrer.” (Id. at p. 879.) Thus, C.A. cannot be read as requiring “proof 

of a dangerous propensity to sexually abuse minors” in a negligent supervision cause of 

action.
15

District contends that these instructions would have told the jury that plaintiff was not 

required to prove prior acts of sexual misconduct by Hermida.

The jury in this case was given a number of very general instructions on 

foreseeability under tort law, which was followed by one quite specific instruction which 

was titled with the cause of action in this case, used the names of the parties in this case, 

and referred to the specific wrongful conduct alleged in this case. This specific 

instruction does not use the term “foreseeability.” There is no reason to believe that the 

jury somehow “mentally corrected” the more specific instruction to conform with the 

general tort principles set forth in earlier instructions.

iv. Prejudice

As we have explained, it is reasonably likely that the jury understood the 

propensity language of the modified CACI No. 426 to require proof of prior acts of 

sexual misconduct by Hermida. This likelihood was increased by the District’s argument 

suggesting that prior sexual misconduct was key to foreseeing Hermida’s sexual abuse of 

plaintiff. The District argued that “[T]hey don’t have any acts of sexual misconduct, 

clear acts of sexual misconduct by . . . Hermida that would give [the District] notice.” 

The District also argued, “And the question you have to answer is, should [school]

administrators or teachers have foreseen sexual misconduct by . . . Hermida? Okay. 

Well, what had he done by way of sexual misconduct before?” The District further 

argued, “Hermida had no past history of sexual misconduct. . . . ” 

The modified version of CACI No. 426, as argued by the District and as likely 

misunderstood by the jury, thus set up an insurmountable hurdle for plaintiff. It required 

her to prove that the District knew that Hermida had a dangerous propensity to sexually 

abuse minors. It is difficult to see how such a propensity could be shown except by past 

acts of sexual abuse of a minor. 

Since plaintiff was Hermida’s first known victim, she could not prove that he had 

committed past acts of sexual abuse and so could not have shown that he had a dangerous 
16

propensity to sexually abuse minors. Indeed, no first victim of a predatory teacher 

would have a remedy, since he or she could not prove propensity. This is not the law.

A miscarriage of justice occurs if, based on the entire record, including the 

evidence, it is reasonably probable the jury would have reached a result more favorable to

plaintiff absent the error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) 

Probability here “does not mean more likely than not, but merely a reasonable chance, 

more than an abstract possibility.’ [Citation.]” (Ibid.)

Plaintiff was required to show only that Hermida had the potential to sexually 

abuse minors. There were several actions by Hermida which could have shown such a 

potential. Hermida’s acts of openly hugging female students could be found to have 

shown such potential, as could his rearrangement of the furniture in his classroom to 

create a hidden alcove, his lying on his back on one of the tables in his classroom while 

two female students were sitting at the table, and his discussion of his personal life, 

including drinking and problems with his girlfriend with his female students. There is a 

reasonable chance that plaintiff would have obtained a more favorable result in the 

absence of the erroneous instruction. Reversal is required.

b. Plaintiff’s Sexual History

Plaintiff contends the trial court erred prejudicially in admitting evidence of her 

prior sexual history. We agree.

i. Law concerning the discovery and use of a plaintiff’s sexual history

In 1985, the Legislature added sections 783 and 1106 to the Evidence Code and 

section 2036.1 to the Code of Civil Procedure. (See Knoettgen v. Superior Court (1990) 

224 Cal.App.3d 11, 13.)

Code of Civil Procedure section 2017.220, subdivision (a), which derives from 

section 2036.1, expressly provides, “any party seeking discovery concerning the 

plaintiff’s sexual conduct with individuals other than the alleged perpetrator shall 
17

establish specific facts showing that there is good cause for that discovery, and that the 

matter sought to be discovered is relevant to the subject matter of the action and 

reasonably calculated to lead to the discovery of admissible evidence.” 

Evidence Code section 1106, subdivision (a) expressly provides, “opinion 

evidence, reputation evidence, and evidence of specific instances of plaintiff’s sexual 

conduct . . . is not admissible by the defendant . . . to prove . . . the absence of injury to 

the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of 

consortium.” 

“The purpose of this legislation, though probably self-evident, was eloquently 

stated by the Legislature: ‘The discovery of sexual aspects of complainant's lives . . . has 

the clear potential to discourage complaints and to annoy and harass litigants. That 

annoyance and discomfort, as a result of defendant[s’] . . . inquiries, is unnecessary and 

deplorable.’” (Knoettgen v. Superior Court, supra, 224 Cal.App.3d at p. 13.) The 

Legislature concluded, “‘the 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, pp. 4654-4655.)” (Id. at p. 14.)

ii. Trial court’s rulings

In February 2013, the Honorable Suzanne Bruguera held a hearing on the 

District’s motions to compel the mental examination of plaintiff and to permit 

questioning of plaintiff about her sexual history. The motion to permit questioning about 

her sexual history was denied.

In October 2013, plaintiff made a motion to preclude evidence of her sexual 

history apart from Hermida. The motion was heard by the Honorable Lawrence Cho, 

who presided at the trial of this matter. At the hearing on the motion, plaintiff’s counsel 

explained that although there were some interrogatory responses suggesting that the 
18

abuse might affect plaintiff’s future romantic relationships, “we basically waived that 

when we were proceeding on in discovery and trying to exclude any inquiry into her 

sexual history.” Referring to the earlier hearing on discovery of plaintiff’s sexual history, 

the District’s attorney stated, “we were precluded from obtaining that type of information 

from plaintiff, not from anybody else.” 

The District’s counsel argued that plaintiff’s sexual history was relevant even if 

she did not seek damages related to future romantic relationships. They contended that 

“when she’s claiming emotion[al] distress from having been involved in a sexual 

relationship with a teacher but she’s also having sexual relations with other people during 

this same time period, then that’s relevant to her contentions that she’s going to suffer 

emotional distress.” The District added, “you can’t separate that.” The District pointed 

to the deposition testimony of their expert, Dr. Katz, who was asked, “So you’re saying 

that victims of sexual abuse who had prior sexual experiences are less traumatized than 

those who haven’t?” Dr. Katz responded, “They certainly can be.”

The trial court denied plaintiff’s motion in limine, ruling “I find that given the 

proffer on the defense that there will be expert testimony indicating that the extent of 

damages, if any, can be dependent upon other sexual relations that the plaintiff was 

having at the time is sufficient to raise—sufficient to raise a relevance to the issue of 

causation, as well as the issue of extent of damages suffered as a result of this sex with 

the teacher, as opposed to having sex with other individuals.” 

iii. Analysis

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of 

discretion. (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111.) 

However, a trial court abuses its discretion as a matter of law if its applies the wrong 

legal standard to the issue before it. (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 

1504, 1517.) That was the case here.
19

Here, the trial court did not weigh the prejudicial potential of the evidence against 

its probative value and did not make a finding of exceptional circumstances which would 

permit the use of plaintiff’s sexual history or behavior at trial. Thus, the trial court 

abused its discretion. 

The District and the trial court relied on the mere fact that plaintiff was claiming 

emotional distress damages to justify the use of the evidence. This is not sufficient, and 

moreover is clearly barred by the express language of Evidence Code section 1106, 

subdivision (a), prohibiting the use of prior sexual history evidence to prove the absence 

of injury to the plaintiff, with the exception of loss of consortium. As our Supreme Court 

has explained, “We cannot agree that the mere initiation of a sexual harassment suit, even 

with the rather extreme mental and emotional damage plaintiff claims to have suffered, 

functions to waive all her privacy interests, exposing her persona to the unfettered mental 

probing of defendants’ expert.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 841.) 

The District and the court also relied on the deposition testimony of the District’s 

expert to justify the use of the evidence. This is not sufficient. Dr. Katz testified at his 

deposition that “I don’t know what [her] sexual history is. I don’t know if she was ever 

raped before. I don’t know if she had sex consensually, non-consensually. I don’t know 

how often she has sex with how many different boys. And for me to understand the 

sexual trauma, I would like to know that.” He also testified, “Here is what I’m saying, 

without knowing her past sexual history, I don’t know how traumatized she was by the 

sexual acts that [were] perpetrated on [her in this case.]” 

Dr. Katz’s deposition testimony is remarkably similar to an expert declaration 

found insufficient by our colleagues in Division Two in Knoettgen v. Superior Court, 

supra, 224 Cal.App.3d 11. That declaration stated in pertinent part, “In order to conduct 

a meaningful evaluation of Plaintiff’s alleged emotional damages, it is necessary to 

inquire into sexual assaults that Plaintiff may have suffered in the past. Such incidents 

are directly relevant to the issues of whether there is an alternative source of any 

emotional distress suffered by Plaintiff and the extent of damages Plaintiff allegedly has 
20

suffered from the acts alleged in her Complaint.” (Id. at p. 14.) The court concluded that 

this showing did not differentiate the case before it from any other sexual harassment 

case. (Ibid.) We reach the same conclusion in this case.

Dr. Katz simply testified that past sexual history is relevant to understanding the 

extent of plaintiff’s sexual trauma. This is true in every case. It does not show 

exceptional circumstances which would allow the introduction of plaintiff’s sexual 

history.

iv. Waiver

The District claims that even if the trial court erred in ruling that evidence of 

plaintiff’s sexuality was admissible, plaintiff reasserted her claims of damage to her 

sexuality at the beginning of trial, thus opening the door to evidence on that topic.

“‘[A] motion in limine to exclude evidence is a sufficient manifestation of 

objection to protect the record on appeal when it satisfied the basic requirements of 

Evidence Code section 353, i. e.: (1) a specific legal ground for exclusion is advanced 

and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable 

body of evidence; and (3) the motion is made at a time before or during trial when the 

trial judge can determine the evidentiary question in its appropriate context.’ (People v. 

Morris (1991) 53 Cal.3d 152, 190, disapproved on another ground by People v. 

Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)” (Boston v. Penny Lane Centers, Inc. 

(2009) 170 Cal.App.4th 936, 950.) Even if plaintiff addressed damages to her sexuality 

at trial, she was permitted to do so without waiving her objections to that evidence under 

the “defensive acts” doctrine which permits a party to introduce evidence she has 

previously unsuccessfully objected to, in an attempt to preemptively address the 

evidence. (People v. Scott (1978) 21 Cal.3d 284, 291.)
21

v. Prejudice

“There can be no doubt that allowing a jury to hear evidence of unsavory conduct 

can be reversible error due to its prejudicial effect.” (People v. Paniagua (2012) 209 

Cal.App.4th 499, 519-520; Winfred D. v. Michelin North America, Inc. (2008) 165 

Cal.App.4th 1011, 1026, 1029.)

The Legislature clearly recognized that a plaintiff’s sexual history had significant 

potential for prejudice. (Knoettgen v. Superior Court, supra, 224 Cal.App.3d at pp. 13-

14.) There is ample evidence that the prejudicial potential was realized. The jury asked a 

significant number of questions about plaintiff’s sexual history which indicated an 

improper and irrelevant interest in the topic. 

Jurors sent a note during Dr. Friedland’s testimony stating, “there appears to be an 

inconsistency. Andy was an 8th grade boy, left middle school in fall of 2010. She was 

two years younger, so she should be in 7th grade in the fall of 2010. The attorney said 

she was in 8th grade.” The juror then clarified, “I just wanted to know what grade she 

was in while she was having—what grade was that?” When Dr. Friedland suggested that 

plaintiff was in 8th grade in 2010, the juror replied, “It doesn’t make sense. If he’s two 

years older and was going to 9th grade, she would have been in 7th. The attorney said 

8th, so I’m just confused.” 

While plaintiff was testifying, a juror sent a note asking, “Is [plaintiff] planning to 

go to back to . . . Hermida after turning 18; and . . . how old was she when she first 

starting having sex?” 

A juror also sent a note posing a series of questions to be asked of plaintiff: “Did 

you have a boyfriend and you started texting back and forth [with Hermida]?” “Did you 

have a boyfriend at any point during the relationship with . . . Hermida?” “Did you tell 

your friend when he first . . . sen[t] you a friend request through myspace?” “Have you 

had sex with other boys before having sex with . . . Hermida?” This line of questioning 

by the jurors was not admissible.
22

The District then exacerbated the prejudice by using plaintiff’s relationships with 

boys to argue that she was sophisticated and could, in effect, voluntarily consent to sex 

with Hermida. They argued during closing: “And no matter what you say about her 

mind being overcome, from some reason, by Hermida, Hermida wasn’t in her classroom. 

That was a decision she made. And what did [her friend] Andromeda tell you about 

plaintiff coming back from one of those episodes? Coming back into the classroom after 

having met with Hermida and had some sexual acts occur. Me and Hermida just had a 

quickie. A quickie. [¶] And at first she tried to act like she didn’t know what it was, and 

then she acknowledged what it was. Now, a quickie, is that a language or thought 

process of a naïve person, a person that doesn’t know what’s going on, a quickie?”

Although evidence of plaintiff’s sexual history was purportedly offered only on 

the issue of damages, her history was discussed throughout the trial. This evidence and 

argument about it is highly prejudicial and warrants reversal even considered in isolation. 

That prejudice is only heightened when the presentation of plaintiff’s sexual history is 

contrasted with the District’s refrain that there was no evidence that Hermida had

committed prior acts of sexual misconduct, which had the unfortunate effect of making 

plaintiff look in some ways more sophisticated than her abuser. 

There is a reasonable chance that the jury would have reached a more favorable 

result for plaintiff in the absence of evidence of her sexual history. Reversal is required.

c. Comparative Fault and Consent

Plaintiff contends the trial court erred in instructing the jury that the District

“claims that [plaintiff’s] own wrongful conduct contributed to her harm” and if the 

District proves this claim, plaintiff’s “damages are reduced by your determination of the 

percentage of [plaintiff’s] responsibility.” She further contends that the trial court erred 

in permitting the District to argue that her wrongful conduct was consenting to the sex.
23

i. Comparative negligence or fault

We agree that the trial court erred in instructing the jury on comparative fault for 

two reasons: (1) there was no evidence of any wrongful conduct by plaintiff, and 

(2) comparative fault has no application in a case involving the sexual abuse of a minor 

student by an adult teacher in a position of authority in a public school setting. 

Hermida’s sexual abuse of plaintiff began while she was under the protection of 

the District, which stands in loco parentis to all of its students, including plaintiff. 

Criminal law prohibited the sexual acts committed by Hermida in order to protect minors 

like plaintiff who, due to a lack of mature judgment, might be manipulated into sexual 

activity with a predatory adult. The District nevertheless sought in the trial of this matter 

to deprive plaintiff of the protections afforded her by criminal and civil law; the District 

convinced the trial court that minors can consent to sex with adults and so the law 

imposing responsibility on minors in other contexts should be expanded to the school 

setting to impose responsibility on minor students for their own sexual abuse by 

teachers.3 On appeal, the District continues to maintain that a minor student who is the 

victim of sexual abuse by a teacher bears responsibility for preventing that abuse. The 

District was wrong in the trial court and is wrong now. There is no case or statutory 

authority or persuasive reasoning supporting the notion that students sexually victimized 

by their teachers can be contributorily responsible for the harm they suffer.

 

3

In agreeing to give the instructions requested by the District, the trial court relied 

primarily on Sagadin v. Ripper (1985) 175 Cal.App.3d 1141 (Sagadin), which involves 

liability for the illegal serving of alcohol to minors by social hosts in a private home. The 

trial court was mistaken in so relying. “[S]chool grounds provide a different setting than 

an adult’s home. And there are differing public policy concerns related to the 

responsibilities of school districts that provide mandatory education as compared to 

adults who invite children into their home on a voluntary basis.” (M.W. v. Panama 

Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 524.) Further, in Sagadin, 

“the claimed negligence of the [social hosts] was predicated solely on the violation of . . . 

a penal statute.” (Sagadin, supra, 175 Cal.App.3d at p. 1163.) In this case, the claimed 

negligence of the District is predicated on the special relationship between plaintiff, a 

pupil in the District, and defendant, a school district.
24

The District’s theory of comparative fault was based on its claim that plaintiff 

engaged in wrongful conduct by “consenting” to sex with Hermida, and so could be held 

responsible for the harm she suffered from that abuse.

As the California Supreme Court has made clear in its discussion of minors as the 

victims of sex crimes, the minor is wronged by the adult’s conduct even if she “consents” 

to the sexual relationship. (People v. Tobias (2001) 25 Cal.4th 327 (Tobias).) As the 

court stated, “‘It has long been settled that where a penal statute expressly outlaws 

conduct against minors, a minor who is a victim of the proscribed conduct is not an 

accomplice. . . . ’” The court explained, “The rationale underlying this rule is that 

prosecution of the minor for cooperating with the defendant would be inconsistent with 

the purpose of the law, which is to protect the minor. . . . [T]he minor, even if a willing 

participant in the defendant’s conduct, is a victim. . . . ” (Id. at p. 334, italics added.) 

“[T]he law. . . puts the burden on the adult to avoid the sexual relationship.” (Id. at 

p. 337, italics added.)

This burden falls with particular force on a school district. It is well settled that “a

school district and its employees have a special relationship with the district’s pupils, a 

relationship arising from the mandatory character of school attendance and the 

comprehensive control over students exercised by school personnel, ‘analogous in many 

ways to the relationship between parents and their children.’ [Citations.]” (C.A., supra, 

53 Cal.4th at pp. 869-870.) Because of this special relationship, a school district has 

obligations to its pupils “beyond what each person generally owes others under Civil 

Code section 1714.”4 (Id. at p. 870.) 

As relevant here, a school district has “a duty of supervision that include[s] an 

obligation to offer [a student] some protection against her own lack of mature judgment.” 

 

4 Civil Code section 1714, subdivision (a) provides in pertinent part, “Everyone is 

responsible, not only for the result of his or her willful acts, but also for an injury 

occasioned to another by his or her want of ordinary care or skill in the management of 

his or her property or person, except so far as the latter has, willfully or by want of 

ordinary care, brought the injury upon himself or herself.” 
25

(Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017 (Kahn).) Such 

supervision is necessary because of the “commonly known tendency of students to 

engage in . . . impulsive behavior which exposes them . . . to the risk of serious physical 

harm.” (Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 748.) Thus, 

plaintiff’s lack of mature judgment in “cooperating” with her abuser was a source of the 

District’s responsibility to her, not a partial excuse from that responsibility. Plaintiff 

cannot be held partially responsible for the sexual abuse committed on her by Hermida, 

an adult teacher.

ii. Consent

The trial court instructed the jury that there is no age of consent and that a minor is 

capable of giving legal consent to sexual intercourse. This instruction was incorrect 

under the circumstances of this case, which involve the sexual abuse of a minor by an 

adult in a position of authority.

Hermida pled no contest to committing a lewd or lascivious act on child aged 14 

or 15 in violation of section 288, subdivision (c)(1). As the standard jury instructions for 

this crime show, it is not a defense that the child may have consented to the act. 

(CALCRIM No. 1112; CALJIC No. 10.41; CALJIC No. 10.42.5)5 It was also undisputed 

at trial that Hermida had sexual intercourse with plaintiff, which violated section 261.5. 

Consent is also not a defense to that offense. Thus, Hermida is a criminal, even if 

plaintiff consented to his sexual acts. 

At the same time, plaintiff is the victim of a crime, even if she consented to 

Hermida’s acts. As we discuss above, the California Supreme Court has made clear in its 

discussion of minors as the victims of sex crimes that the minor is wronged by the adult’s 

 

5 CALJIC No. 10.41 applies to violations of section 288, subdivision (a) and 

provides that consent is not a defense. The use note to CALJIC No. 10.42.5 provides that 

instructions and case law concerning section 288, subdivision (a) applies to violations of 

section 288, subdivision (c) as well.
26

conduct even if she “consents” to the sexual relationship. (Tobias, supra, 25 Cal.4th 

327.) 

The victim of a crime does not bear any responsibility for the harm she suffers 

from the crime. Thus, a minor’s purported consent to a crime is simply not relevant in a 

tort action against a school district for damages arising from the sexual abuse of a minor

by a teacher. Specifically, in this case, plaintiff’s purported consent to Hermida’s crimes 

is not in any way relevant to the issue of whether the District negligently supervised 

Hermida, or to whether she suffered damages as a result of that supervision.

Despite this clear lack of relevance of consent, the trial court instructed the jury 

that “There is no ‘age of consent’ with regard to sexual relations involving a minor. A 

minor is capable of giving legal consent to sexual intercourse unless said minor has such 

a high degree of immaturity that the minor could not meaningfully agree to engage in the 

sexual conduct in question.” The court said, “I believe it is a correct statement of law, as 

this was taken directly from the Donaldson case.” The court was referring to Donaldson 

v. Department of Real Estate (2005) 134 Cal.App.4th 948 (Donaldson).6 Although 

Donaldson is a civil case, the Donaldson court’s discussion of “consent” is taken from 

the criminal law. However, the Donaldson court simply missed the bigger picture 

concerning consent in criminal law, as did the trial court in this case. 

Generally, consent is a very limited concept in sex crimes against a minor. The 

court in Donaldson relied on the discussion of consent in Tobias, supra, 25 Cal.4th 327, 

which involved the very narrow topic of consent in the crime of incest in which one 

participant is a minor. Incest is a unique crime, in that both participants can be criminally 

prosecuted if they consent to the act, and the statute, as written, does not make a clear 

 

6 The issue before the court in Donaldson was the narrow one of whether a violation 

of section 261.5 was a sex crime involving “a non-consenting participant” within the 

meaning of a statute authorizing the revocation of a real estate license. The court found 

that since absence of consent was not an element of a section 261.5 offense, a finding that 

a licensee violated section 261.5 did not prove that the licensee had had sex with a nonconsenting participant.
27

distinction between adult participants and participants who are minors aged 14 or older. 

(§ 285.) Thus, the Tobias court’s discussion of consent is not readily applicable to other 

sex crimes.

At the same time that the Donaldson court relied on the consent discussion in 

Tobias, it overlooked that opinion’s general discussion of the role of minors as victims in 

sex crimes. This more general discussion is applicable to sex crimes other than incest. 

As we have discussed above, the opinion in Tobias shows that even if a minor consents to 

sexual activity with an adult, he or she is still the victim of the crime. Thus, the trial 

court erred in instructing the jury on consent.

7

iii. Prejudice

Although the issue of comparative fault was purportedly offered only on the issue 

of damages, the idea that plaintiff engaged in wrongful conduct was discussed throughout 

the trial. The idea that plaintiff engaged in wrongful conduct by “consenting” to sexual 

intercourse wrongly portrayed her in a negative light and was highly prejudicial. There is 

a reasonable chance that the jury would have reached a more favorable result for plaintiff 

in the absence of evidence that she engaged in wrongful conduct, particularly wrongful 

conduct in “consenting” to sexual intercourse with her teacher. Reversal is required.

d. Superseding Cause Instruction

Plaintiff contends the trial court erred by instructing the jury pursuant to CACI 

No. 433 that the District was “not responsible for [plaintiff’s] harm if [the] District 

 

7 Although there may have been some confusion about the applicability of the 

criminal law concept of “consent” to civil cases at the time of the trial in this matter, the 

Legislature has since added section 1708.5.5 to the Civil Code to clarify that “consent” is 

not a defense in civil law actions for sexual battery involving a minor victim and an adult 

who is in a position of authority over the minor, including teachers. The Legislature has 

also amended Evidence Code section 1106 to provide that “evidence of the plaintiff 

minor’s sexual conduct with the defendant adult [shall not be] admissible to prove 

consent by the plaintiff or the absence of injury to the plaintiff.” (Stats. 2015, ch. 128.) 
28

proves both of the following: [¶] 1. That the criminal conduct of . . . Hermida happened 

after the conduct of [the] District; and [¶] 2. That [the] District did not know and could 

not reasonably foreseen that another person would be likely to take advantage of the 

situation created by [the] District’s conduct to commit this type of act.” We agree.

“It is well established that when a defendant’s negligence is based upon his or her 

having exposed the plaintiff to an unreasonable risk of harm from the actions of others, 

the occurrence of the type of conduct against which the defendant had a duty to protect 

the plaintiff cannot properly constitute a superseding cause that completely relieves the 

defendant of any responsibility for the plaintiff’s injuries.” (Lugtu v. California Highway 

Patrol (2001) 26 Cal.4th 703, 725; accord Kahn, supra, 31 Cal.4th at p. 1017.) 

There was no dispute that the District’s Code of Conduct was designed in part to 

protect students from sexual abuse by teachers. As we discuss throughout this opinion, 

sex by an adult with a minor is always a crime. Thus, the fact that Hermida committed a 

sex crime is not a superseding cause. 

e. Discretionary Immunity Instruction

Plaintiff contends the trial court erred in instructing the jury that “Decisions by a 

school principal to impose discipline on a teacher require the exercise of judgment and 

choice, and accordingly are discretionary acts for which defendant . . . is immune from 

liability.” Plaintiff has not cited any objection in the trial court and did not offer any 

legal or factual argument in her opening brief to support her claim. Accordingly, she has 

waived this claim on appeal. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 

659, 685.)

We note that in her reply brief, plaintiff contends that the instruction is erroneous 

because it might have caused the jury to mistakenly believe that a school principal’s 

decision to investigate claims of potential misconduct is discretionary although plaintiff 

claims such investigation was mandatory under the District policy. Although we do not 
29

consider this argument on appeal (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 

764), plaintiff is free to make this argument on remand.

DISPOSITION

The judgment is reversed and matter is remanded for a new trial. Plaintiff, S.M., 

shall recover costs on appeal.

CERTIFIED FOR PUBLICATION

KIRSCHNER, J.

I concur:

KRIEGLER, J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
S.M. v. Los Angeles Unified School District

B253983

TURNER, P.J., Concurring

I concur in the decision to reverse the judgment. I respectfully disagree though 

that there was properly preserved prejudicial instructional error in connection with CACI 

No. 426. The tort of negligent supervision involves a special application of negligence 

rules. (Rest.2d Agency § 213, com. a; see Schovanec v. Archdiocese of Oklahoma City

(Okla. 2008) 188 P.3d 158, 169, fn. 12.) In terms of negligent retention, there must be 

knowledge of the particular risk or hazard that causes injury. (Doe v. Capital Cities

(1996) 50 Cal.App.4th 1038, 1054 [“Liability is based upon the facts that the employer 

knew or should have known that hiring the employee created a particular risk or hazard 

and that particular harm materializes.”]; Evan F. v. Hughson United Methodist Church

(1992) 8 Cal.App.4th 828, 836-837 [the cornerstone of the religious conference’s liability 

of negligent hiring was “the risk that [the molester] will act in a certain way (i.e., molest a 

child). . . .”]; see Rest.2d, supra, § 213, com. d [“[T]here is liability only to the extent that 

the harm is caused by the quality of the employee which the employer had reason to 

suppose would be likely to cause harm.”]; see Chin et al., Cal. Practice Guide: 

Employment Litigation (Rutter Group 2014) ¶ 5:832, p. 5(I)-86.) In Diaz v. Carmarco 

(2011) 51 Cal.4th 1148, 1157, our Supreme Court analyzed a negligent retention claim in 

the context of an accident prone truck driver. In doing so, our Supreme Court defined the 

relevant negligent retention claim as follows: “Awareness, constructive or actual, that a 

person is unfit or incompetent to drive underlies a claim that an employer was negligent 

in hiring or retaining that person as a driver. (See Judicial Council of Cal. Civ. Jury 

Instns. (2010) CACI No. 426.)” (Diaz v. Carcamo, supra, 51 Cal.4th at p. 1157.) Thus, 

defendant was entitled to an instruction focusing the jurors’ attention on the relevant 

knowledge element—the risk Elkis Hermidia would sexually abuse a student.
2

Plaintiff argues that CACI No. 426 should have been given without modifying it to 

refer to defendant’s knowledge of Mr. Hermidia’s propensity or potential to abuse a 

child. This contention as no merit. For example, there was evidence of Mr. Hermidia’s 

unprofessionalism, laying on his back on his desk texting. The jurors could reasonably 

have concluded that level of unprofessionalism should have evinced some response from 

Mr. Hermidia’s colleagues and his supervisors; instead of institutional silence. On the 

other hand, the jurors could have deduced such conduct in the presence of female 

students was evidence of a propensity to engage in sexual misconduct when coupled with 

other evidence. The instruction selected by the trial court directed the jury at the critical 

issue—whether the conduct of which defendant was aware of should have been triggered 

appropriate correction action. 

Plaintiff never asserted in the trial court any modification should be made to CACI 

No. 426. This is not a case where there was a complete failure to instruct on a cause of 

action. The position plaintiff took, that modification to CACI No. 426 was unwarranted, 

is without merit. Thus, any issue concerning using the phrase “potential” to sexually 

abuse minors rather than the “dangerous propensity” verbiage has been forfeited. 

(Agarwal v. Johnson (1979) 25 Cal.3d 932, 951; Scofield v. Critical Air Medicine (1996) 

45 Cal.App.4th 990, 1011.) And even if the language “dangerous propensity” to sexually 

abuse minors should have been replaced with the “potential” adjective, there is no 

reasonable probability of a different result. (Cassim v. Allstate Co. (2004) 33 Cal.4th 

780, 800; Cal. Const., art. VI, § 13.) However, I join in my colleagues’ well-stated 

discussion of the other errors which do, for the reasons stated, warrant reversal of the 

judgment.

 

TURNER, P. J.