The opinion
Filed 4/7/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SABRENA ODOM, B327997
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC724401
v.
LOS ANGELES COMMUNITY
COLLEGE DISTRICT et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Robert S. Draper, Judge. Reversed and
remanded for a new trial.
Meyers Nave, Janice P. Brown, Nadia Bermudez, Nicole
Ries Fox and Margaret W. Rosequist for Defendants and
Appellants.
Alexander Morrison + Fehr, Tracy L. Fehr; Law Offices of
Maryann P. Gallagher and Maryann P. Gallagher for Plaintiff
and Respondent.
_____________________________
SUMMARY
Defendants appeal from a judgment on a jury verdict
awarding $10 million to plaintiff on her claims for sexual
harassment, retaliation and related claims. We reverse the
judgment, not for lack of substantial evidence, but for prejudicial
errors in the admission of irrelevant and damaging “me-too”
evidence from a witness who was not similarly situated to
plaintiff, and for the equally prejudicial and erroneous admission
of 20-year-old newspaper articles and other evidence of the
alleged harasser’s misdemeanor convictions.
This is an unusual case, due to the significant arbitrary
and prejudicial evidentiary rulings of the judge presiding over the
trial. After the judgment was entered, defendants filed motions
for a new trial (or in the alternative a remittitur) and for partial
judgment notwithstanding the verdict (JNOV) (or in the
alternative for remittitur). At the hearing on those motions,
which were denied, the trial judge initiated extended, bizarre
personal comments on racial matters with newly substituted
defense counsel (the only Black woman in the courtroom), despite
there being no racial issue of any kind in the case. Defendants
filed a motion to disqualify the judge for cause and to void his
rulings on the motions. After writ proceedings and referral to a
neutral judge, the trial judge was disqualified and his rulings on
the postjudgment motions were voided.
On this appeal from the judgment, we need not decide
whether the trial judge’s prejudicially erroneous evidentiary
rulings during the trial were motivated, in part, as defendants
contend, by “persistent racial and gender bias.” It seems clear
the judge’s rulings were motivated by personal opinions
untethered to the rules of evidence. Whatever his motivations
may have been, the judge admitted inflammatory evidence
without consideration of the evidentiary rules, with undeniable
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prejudicial effect, thus preventing a fair trial. We accordingly
reverse the judgment and order a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2018, plaintiff Sabrena Odom filed a complaint
for damages, alleging sexual harassment; failure to investigate
and prevent sexual harassment; retaliation; and negligent hiring,
supervision and retention, in violation of the Fair Employment
and Housing Act (FEHA; Gov. Code, § 12940 et seq.), against
defendants Los Angeles Community College District (the District)
and Howard Irvin, then the vice president of student services at
Los Angeles Southwest College, a community college in the
District. The alleged sexual harassment occurred between
February 2017 and October 2017.
1. The Parties
Plaintiff was and still is a tenured professor at Southwest
College. She began as an adjunct, and in 2005 was hired full
time, working 50/50 as an English instructor and as director of
the Student Success Center, which offered tutoring and
workshops to enable student learning. The record contains
undisputed evidence recounting plaintiff’s background, the
achievement of her lifelong dream of teaching at Southwest
College, her doctorate, her exceptional performance at the college,
her devotion to her students and to the Student Success Center,
and the thriving of the center under her leadership.
Defendants are the District and Dr. Irvin, the alleged
harasser. Dr. Irvin joined Southwest College in 2016 as vice
president of student services. He had been an officer with the
Los Angeles Police Department for 13 years, until he retired in
1998, 18 years before he joined Southwest College. After leaving
the police department, he began a career in community
counseling and worked at several community colleges in southern
California. He earned his Ph.D. in 2007.
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2. The Sexual Harassment and Retaliation Evidence
We first recount evidence relating to plaintiff’s sexual
harassment and retaliation claims, exclusive of the wrongly
admitted evidence at issue, which we shall describe later.
a. Sexual harassment
Plaintiff testified that the sexual harassment began in
February 2017 and continued for about eight months.
In February 2017, plaintiff and Dr. Irvin both attended a
conference in San Francisco, sponsored by a national
organization, Achieving the Dream, that focused on working
students and students who were parents. Dr. Irvin had
administrative oversight of the Achieving the Dream initiative,
for which plaintiff was the faculty representative. Plaintiff had
not interacted with Dr. Irvin before she met him at the
conference. They met in the lobby bar of the conference hotel and
talked about the purpose for the conference and plaintiff’s plan
for presenting a poster she had prepared for the conference.
Plaintiff testified she felt uncomfortable with the casual way
Dr. Irvin spoke to her and some of the personal questions he
asked her. Dr. Irvin testified he asked plaintiff no personal
questions.
Plaintiff testified that dinners with the group from the
college attending a conference are typical, but that she did not
want to go to dinner with Dr. Irvin alone, so she invited a
colleague from another college to attend with her. Plaintiff
testified she was “uncomfortable the entire time.”
Plaintiff testified that at the end of the conference,
Dr. Irvin made her uncomfortable when he asked her if she “was
willing to ride home with him in his car from San Francisco back
to Los Angeles.” She told him she would take her flight back.
Dr. Irvin testified he had flown to the Bay area from Los Angeles
and rented a car, and he offered plaintiff a ride to the
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San Francisco airport. She accepted, and he took her to the
airport.
Plaintiff testified that between February and September
2017, she met with Dr. Irvin to get his approval for budgetary
items, when she needed supplies, and when she was hiring
students for the tutoring program. The meetings were sometimes
once a week, sometimes every other week, and sometimes
multiple times a week. Dr. Irvin would often call her at the spur
of the moment to come to his office. The first time, in February
2017, “the discussion quickly went from business to me, to my
body, the way I looked.” Plaintiff described the meetings with
Dr. Irvin, at which he would say things like, “[Y]ou look very sexy
today, and I would love to see what your body looked like naked.”
Dr. Irvin said “multiple times” that he wanted to have sex with
plaintiff. He continued to make comments and then he would
apologize. “[A]fter I would state that I didn’t appreciate what he
was saying to me, he would always apologize and say ‘I’m just a
man’ and ‘I’m no good. I know I’m no good.’ ”
Plaintiff testified Dr. Irvin told her that “he had the
authority to place people in positions that could be lucrative
financially, and that could lead to other opportunities, and he
would support me in making those things happen if I followed
through with his request for sex.”
While sitting at the table in his office, Dr. Irvin “would
start . . . to make references to sex and how virile he was and how
he would please me, he would squirm in his chair and rub his
genitals and just make motions that he was trying to please
himself as he was speaking.” This “made me feel scared” because
“he was much stronger than me” and “I constantly wondered
what he would do next.” After the meetings, Dr. Irvin would
usually insist on walking out with her on the campus and would
say things like, “ ‘I would love to tap that ass.’ ”
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When Dr. Irvin asked plaintiff to have sex with him, she
“felt violated because I was very clear and direct that I did not
want a sexual relationship with him from the first time he asked.
And I was just really confused as to why he continued to pressure
me into having sex with him.”
There was a great deal of other testimony from plaintiff
along those lines.
Dr. Irvin testified he had “no recollection” of meeting with
plaintiff in his office “any time.” Dr. Irvin’s calendar showed one
meeting with plaintiff on September 28, 2017, but he had “no
direct recollection of that.” Dr. Irvin testified he never walked
around campus with plaintiff or said the things to her that she
testified he said. He testified he had no reason to meet with
plaintiff “at all” because she reported to Dr. Lawrence Bradford.
There was other evidence supporting Dr. Irvin’s testimony that
plaintiff reported to Dr. Bradford, the vice president of academic
affairs, when these events began in February 2017. However, the
Student Success Center that plaintiff directed was funded
through grants, and “Dr. Irvin was in charge of the funding
through those particular grants.” Plaintiff testified that in the
fall of 2017, she received a notice that “my direct report would be
changed to Dr. Irvin.”
b. Retaliation
In early November 2017, plaintiff went to Denise Noldon,
the interim president of Southwest College, and told her she was
being sexually harassed by Dr. Irvin, had not complied with his
wishes, and felt she was being retaliated against “with an attack
against my program as well as my staff.” Plaintiff testified that
nothing happened in response to her complaint. Dr. Noldon
testified that plaintiff did not complain to her about sexual
harassment by Dr. Irvin at any of the three meetings Dr. Noldon
had with plaintiff.
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Plaintiff testified to three different acts of alleged
retaliation against her “program” and her “staff.”
First, plaintiff testified that in the fall of 2017, Dr. Irvin
tried to move the Student Success Center from the library to
another building, knowing that plaintiff thought the program
was “best suited to be in the library.” He told her he was going to
refurbish the old building (where the center had been located
before plaintiff became director). Dr. Irvin tried to convince her
“that it was a good thing to do,” and she “continuously [told] him
the [center] was in its rightful location.” Plaintiff also testified
that spending $200,000 to refurbish another location “was just an
expense that our college really couldn’t afford and could have
been better utilized with supporting current programs already in
existence that needed support.”
Dr. Irvin testified about discussions at four or five senior
staff meetings (which plaintiff did not attend) about moving the
center. He testified that he did not recall “at any time . . . having
any discussions at all with [plaintiff] about . . . moving the
success center.” He learned from Dr. Bradford that Dr. Bradford
had told her about it and “she was pissed.”
Dr. Noldon, the interim president, testified she initially
thought the proposed move was a good idea, but later changed
her mind because of the timetable for spending the funds and
because plaintiff did not appear to want the move. The proposed
relocation did not take place.
Second, Dr. Irvin announced, at an annual meeting for all
faculty administrators and staff, that plaintiff would be “working
at a new program under student services and one that he would
be responsible for.” Plaintiff testified that she thought Dr. Irvin
“wanted to be my direct report,” “wanted to be my supervisor,”
and while he already “had financial control,” she felt he wanted
“all control.” Dr. Irvin testified that he did in fact make the
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announcement, and had not had any discussions “with anybody
at the senior staff level that that was going to happen,” and he
had “made an assumption that was inaccurate” based on his
understanding of the plans for the relocation of the center. He
testified he did not want plaintiff to be under his supervision.
Third, plaintiff testified that on August 22, 2017, Dr. Irvin
notified her “that two of [plaintiff’s] staff members were fired on
the spot with no discussion with me, no discussion with them.
They were just notified that they no longer had a job at the
beginning of the semester.” Plaintiff testified she was “just
devastated that someone who was actually in a position to
support these students took their livelihood away from them
without even discussing it with me or with them.”
Dr. Irvin testified that the two student employees were
terminated because they had exceeded the District’s five-year
limit on student employment. Plaintiff testified that students
can be reclassified when they exceed the five-year student work
limit. She asked Dr. Irvin if the two student workers he
terminated, Jennifer Gallegos and Eddie Powell, could be
reclassified, and he said no.
Ms. Gallegos testified that she had been employed by the
college for six years and six months, and so wondered “why is it
just now happening?” She testified that she knew other student
workers who were over the five-year mark, so she and Eddie
Powell asked Dr. Irvin’s secretary, Ms. Byley. Ms. Byley showed
them a green sticky note from Dr. Irvin with their names and
employment numbers on it, and said he told her to check their
hire dates.
Ms. Gallegos testified that Dr. Irvin then gave her a job in
the admissions office and told her she was not allowed to go to
the Student Success Center. Her station was in the building
where Dr. Irvin had his office. Dr. Irvin would watch her from
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the second floor. She worked there for about three weeks, “but he
made me feel uncomfortable and intimidated” and “stressed out,”
and she decided “I shouldn’t have to go through something like
this.”
Plaintiff testified that nothing happened after she
complained to Dr. Noldon in early November 2017 about
Dr. Irvin’s sexual harassment and retaliation, so plaintiff went to
her union representative, Dr. Sandra Lee, and told her she
thought the reason for the contention over the center “was
because of Dr. Irvin’s harassment of me and retaliation that I
didn’t comply with him.”
Then, at a November 2017 academic senate meeting, the
college’s administrative vice president, Dan Hall, announced that
the center “would start reporting to Dr. Irvin in Student Services
effective immediately.” This came as a surprise to the academic
senate president, Robert Stewart, who told plaintiff that such a
unilateral move was out of compliance with processes for moving
programs under a faculty contract. Immediately after the
meeting, Mr. Stewart, Dr. Lee (plaintiff’s union representative)
and plaintiff went to the president’s office to seek clarity about
the decision, and the meeting was contentious.
3. Plaintiff’s Internal Complaint, the Investigation
and the Findings
On December 4, 2017, a few days after the contentious
meeting in Dr. Noldon’s office, plaintiff filed a written internal
complaint, reporting Dr. Irvin’s unwanted sexual advances and
retaliation against her for not complying with them. Her
complaint included allegations that her work environment was
unsafe.
Muriel Alford, a compliance officer for the District, was
appointed to conduct an investigation, which she completed five
months later. During Ms. Alford’s investigation, plaintiff
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responded to Ms. Alford’s multiple written requests for
information. In December 2017, among many other questions,
plaintiff was asked to describe how her work atmosphere had
become a hostile environment. Among other things, she wrote:
“I felt that I could not trust administrators at [Southwest
College]. Each morning before arrival at work, I experienced
severe stomachaches, headaches, and I have trouble sleeping at
night. My thoughts are consumed with being sexually harassed
and retaliated against by [Southwest College] administration.”
Another question asked plaintiff to describe how her
emotional distress was manifested. She wrote in part: “My
emotional stress is manifested by feelings of fear, disbelief and
anxiety. I often think of being trapped by Dr. Irvin and unable to
escape. I think of him holding me hostage against my will at gun
point. I feel detached and often reflect on the past comforts of
working as [a District] employee. I feel as if I am grieving the
career I once loved, and it brings forth emotional mood swings.”
Plaintiff received and answered a second set of questions in late
January 2018.
In addition to the two sets of questions, to which plaintiff
provided detailed answers, Ms. Alford again asked for further
information in writing (to “describe the sexual advances and state
the unwanted comments”). Plaintiff provided that information,
and Ms. Alford interviewed plaintiff for at least two hours in
February 2018. Plaintiff testified that during the interview,
Ms. Alford “made me feel as if I was wasting her time. And she
really didn’t show any compassion towards listening to what I
had to say.” During the interview, Ms. Alford asked her, “Why
would you continue to have meetings with him alone in his office
and not complain to someone about his harassment? Why did
you frequently visit him instead of e-mail or with someone else in
attendance?” Plaintiff answered that she had business to conduct
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“that was important, and it had a significant effect on my
students’ ability to get resources from college that they needed,
and he had to approve my request for resources.”
After that two-hour interview, Ms. Alford asked for another
meeting, and plaintiff asked her what more she needed from
plaintiff. Plaintiff received no response for months, until she
received a letter advising her there was no evidence to
substantiate her claims. She felt betrayed, “not taken seriously,
not valued, not supported.”
Ms. Alford submitted a report of her investigation, for
consideration of the deciding official, on May 8, 2018. Ms. Alford
concluded that plaintiff “failed to establish a prima facie case of
hostile work environment sexual harassment,” as “she was
unable to substantiate her allegations based on preponderance of
the evidence presented.” (Italics omitted.) Ms. Alford also
concluded plaintiff failed to establish a prima facie case of
retaliation. The report stated that Dr. Irvin “was not responsible
for the denial of the request to retain the students,” and district
policy mandated their termination. The report stated that
“[w]hen it was made known that [plaintiff] did not want to
relocate the Center the plan did not move forward.” The report
also concluded plaintiff “did not show that she suffered any
tangible harm. Overall, the preponderance of evidence presented
does not support a finding that the conduct by respondents Irvin
or Noldon, occurred as alleged by [plaintiff].”
Kathleen Burke was the interim deputy chancellor for the
District and made the final decision on plaintiff’s complaint. On
June 8, 2018, Dr. Burke sent a letter to plaintiff notifying her of
the results of the Alford investigation. The letter repeatedly
stated that plaintiff “failed to provide documentation or
testimony that would allow a reasonable person to believe the
allegations to be truthful.” The letter gave the parties an
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opportunity to make an oral statement to Dr. Burke before she
made the final decision. Dr. Burke testified the purpose of the
opportunity to respond was “[i]f any additional information has
come up since the time of the investigation that would lead to a
change in the decision or influence the final decision, it’s an
opportunity for the complainant and for the respondent to come
meet with the final decision maker.” Plaintiff did not request a
meeting.
Dr. Burke never met with Ms. Alford about the allegations
and never met with plaintiff. She met with Dr. Irvin, whom she
had known for three or four years, in June 2018. Dr. Burke
relied on Ms. Alford’s report, which did not include witness
statements; she relied on Ms. Alford’s summary of what the
witnesses said.
Notably, in her internal college complaint, plaintiff had
identified “frequent[]” meetings alone with Dr. Irvin in his office
during “the week of September 4th and September 11, 2017,”
when she was trying to get him to reconsider the firing of her two
student workers. In her report, Ms. Alford stated the complaint
alleged meetings occurred “[o]n” those dates. In her factual
findings, Ms. Alford stated that “[s]ome of the dates of meetings
submitted by the complainant with the exception of one date
could not be substantiated. For example, complainant used dates
when the college was closed [Labor Day, September 4] or when
[according to his work calendar, Dr. Irvin] was not on campus the
day of the alleged incident [September 11].” Dr. Burke testified
she was unaware that Ms. Alford’s statements on this point were
wrong. Dr. Burke was unaware of several other pertinent facts,
such as Dr. Irvin’s re-hiring of Jennifer Gallegos after she had
been fired.
Plaintiff testified she felt devastated by the report because
“I felt like I was perceived to be a liar and making all this up.”
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4. Plaintiff’s Complaint and the Trial
Plaintiff filed her complaint in this action in October 2018.
Judge Robert S. Draper presided over a three-week trial in
October 2022. There were more than 20 witnesses. Plainly,
witness credibility was the key issue for the jury to decide, and
the trial court should have carefully weighed the relevance of any
evidence offered to impeach a witness against the potential for
undue prejudice. The court admitted testimony and documents
we conclude should not have been admitted. We now turn to that
evidence, as well as other trial-related matters.
a. The Los Angeles Times articles and Dr. Irvin’s
misdemeanor convictions
i. Background
When plaintiff filed her internal complaint in December
2017, the complaint included a statement that she felt her work
environment was unsafe. During Ms. Alford’s investigation, her
first set of questions included a question asking plaintiff to
describe “in specifics what has made you fear for your safety
while at work.”
Plaintiff’s written response explained that during the
summer of 2017, someone had slipped an article from The Los
Angeles Times (The Times) under her door, with the handwritten
words, “Watch Out.” (There were actually two articles, one dated
Feb. 25, 1998, and the other dated Oct. 30, 1997.) Plaintiff stated
that the article “detailed Dr. Irvin’s past as an LAPD officer and
his conviction of sexual assault. I was already uneasy around
him, but after reading the article, I became frightened whenever
he was around. I didn’t want to become a victim of his like the
woman in the article. One day during a meeting with Dr. Irvin, I
asked him if he carried a gun. His response was, ‘No, but I can
get to it when I need it.’ Another time, I asked him the same
question and he said, ‘Of course.’ I believe I asked him this
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question at least 3 times, and I was never comfortable with the
answer.”
Dr. Irvin’s criminal defense attorney testified Dr. Irvin was
never convicted of any sex crime, and there was no evidence at
trial to support plaintiff’s belief that he had been.
Ms. Alford’s second set of questions included question
No. 10, which asked: “Submit a copy of the L.A. Times article
regarding Dr. Irvin. State the reasons why you repeatedly asked
him if he carried a gun.”
Plaintiff’s response appears in trial exhibit No. 19. In
response to Ms. Alford’s question, plaintiff submitted a copy of
the two newspaper articles that had been put under her door.
Plaintiff explained that “every current and former police officer
carries a gun. I live in fear now, not only on campus, but off
campus as well. On campus, I am now hyper vigilant and
extremely conscious of my surroundings because I know that
Irvin is dangerous and poses a threat to my safety due to my non-
compliance to his demands for sexual favors.”
ii. Trial proceedings
During her trial testimony, plaintiff’s counsel asked
plaintiff to explain more about The Times’s articles. Defense
counsel objected on hearsay grounds. The court stated, “Well, the
L.A. Times is not being admitted for the truth. What the L.A.
Times article says is being admitted for her reaction, not
admitted for the truth, so it’s overruled.” However, the court
permitted plaintiff’s counsel to read from the article and question
plaintiff extensively about statements in the article.
Plaintiff testified that she “felt terrified after I read it.”
She said it “was about Dr. Irvin and how he committed sexual
assault against another female police officer.” (As noted above,
there was no evidence to support plaintiff’s belief that Dr. Irvin
committed a sexual assault, and defendants had to call Dr. Irvin’s
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defense counsel from 20 years before to testify to that effect.)
Plaintiff was questioned and testified about her written
responses to Ms. Alford’s questions, one of which was: “I dreaded
walking to my car at night. I stopped parking in the multilevel
structure. I questioned my ability to do my job well. I questioned
my 20-year career as an educator. I was constantly aware that
there was someone on campus who had a gun and wanted to
harm me.” (There was no evidence at trial to support plaintiff’s
testimony that Dr. Irvin had a gun.)
When plaintiff’s counsel moved trial exhibit No. 19 into
evidence, defense counsel stated that “[w]e have an issue with
this particular document.” After an unreported sidebar, the court
stated: “All right. This has the article referred to attached. It
has also a lot of information. [¶] To the extent the exhibit states
her belief and what she believed and what she saw, [plaintiff],
that would be admitted for the truth. [¶] To the extent it states
hearsay, such as the number article [sic], it would be admitted for
her response from the request from the college.”
Plaintiff then testified about her answer to Ms. Alford’s
question No. 10. Her counsel questioned her about the 1998
article, which stated that a female detective “testified Tuesday
that she was concerned and confused about why a police sergeant
[Irvin] against whom she had a restraining order for stalking her,
he was invited to meet with police chief Bernard Parks in the
building where she worked.” (McGreevy, LAPD Detective
Testifies Stalker Cop Got Too Close, The L.A. Times (Feb. 25,
1998).) The article referred to the female detective’s “emotional
testimony [that] came on the opening day of the criminal trial in
which police sergeant Howard Irvin is charged with violating a
restraining order that prohibited him from going within
100 yards of the workplace at police headquarters.” (Ibid.)
Plaintiff testified she was “terrified” when she first read the
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article, and provided it to Ms. Alford at her request “[b]ecause I
wanted them to be clear why I was terrified.” Plaintiff testified
that “this article and what was in it” was “one of the reasons that
compelled [her] to complain.” The article stated that the female
detective “ ‘told the jury after she ended a five-year relationship
with Irvin in June 1996, he continued to contact her against her
wishes and threatened her with physical harm.’ ” (Ibid.)
The second newspaper article about Dr. Irvin contained
details of three domestic abuse allegations and their
consequences. (Krikorian et al., Officer Was Subject of
3 Domestic Abuse Probes, The L.A. Times (Oct. 30, 1997).)
Plaintiff’s counsel referred to this article during plaintiff’s
testimony, stating: “There’s a second article which is smaller,
and a little harder to read, but this article is Exhibit 19-08 and
19-09. And I’m just going to show it for identification so the jury
can see it. [¶] So this was ‘Officer was subject of three domestic
abuse probes.’ This, again, was included in the information that
you provided to [the District] in January of 2018 with regard to
Irvin; correct?” Plaintiff responded affirmatively.
During the later cross-examination of Dr. Irvin, he testified
he had been accused of domestic violence in 1994 and was
suspended from the LAPD for 22 days; was again accused of
domestic violence in 1996 and underwent a Board of Rights
hearing; was convicted of four misdemeanors, two for disobeying
court orders, one for threatening a crime with intent to terrorize,
and one for stalking, for each of which he received probation.
These all appeared in a “live scan” submitted to Southwest
College in February 2016 when he applied for employment there.
Alberto Roman, who was vice chancellor of human
resources for the District when Dr. Irvin was hired, testified for
the defense about the live scan results and procedures for
reviewing live scans during the hiring process. Dr. Roman
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testified he would look for several things, including “the nature of
the misdemeanor or felony, the recency, . . . whether or not it’s
been expunged or dismissed, and how that particular conviction
would relate to the job.” He testified the District had been
advised over the years “not to consider those for purposes of
rejecting candidates for employment. [¶] So if there is a
dismissed or expunged misdemeanor, for example, we do not hold
that against the candidate to hire them.”
On cross-examination, Dr. Roman confirmed that he
reviewed Dr. Irvin’s live scan results at the time of his hiring,
and that Dr. Irvin had been convicted of two counts of disobeying
court orders, one count of threatening crime with intent to
terrorize, and one count of stalking. Dr. Roman explained that
the convictions were set aside and dismissed, and so they were
not considered for purposes of employment. When asked if those
prior convictions for sex crimes would not be looked at during an
investigation of sexual harassment allegations, Dr. Roman
testified that “it’s not our practice to go back and look at
dispositions that were dismissed from years ago to make those
kinds of conclusions about a complaint that’s at hand before the
office.”
b. The Raquel Gonzalez testimony
Raquel Gonzalez was a student worker at Southwest
College from the fall of 2015 until early 2018. She worked for
Johnel Barron, the outreach coordinator, visiting high schools
and doing related outreach work. She made an internal
complaint about Mr. Barron, and when “[n]othing happened,” in
October 2017 she filed a sexual harassment lawsuit against
Mr. Barron and the District that also named Dr. Irvin as a
defendant.
Before Ms. Gonzalez testified, defense counsel described
her as a “surprise witness” (though her name was on the witness
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list) and asked to take her deposition. The court allowed the
deposition.
After Ms. Gonzalez’s deposition, defendants sought to
exclude her testimony and evidence of her claims and complaints,
but the court allowed her testimony and admitted her complaint
into evidence.
Before Ms. Gonzalez testified, the court discussed the issue
with counsel. The court stated that “Ms. Gonzalez’s testimony
paints quite a different picture of the college than has been
portrayed by counsel of the college. [¶] Whether that’s true or
not is for the jury to determine, but I think the testimony is
relevant on that subject. Mr. Irvin was also involved in it, and to
that extent—but that’s also relevant.” Referring to
Ms. Gonzalez’s October 2017 lawsuit against Mr. Barron and
Dr. Irvin, defense counsel stated that “just because she makes
allegations, doesn’t make them true.” The court responded,
“That’s why you have cross-examination.”
Defense counsel argued that the testimony was not “me-
too” evidence because the Gonzalez allegations “are so vastly
different from that of [plaintiff],” in that Ms. Gonzalez was a
student, in a completely different role than plaintiff, with
allegations nothing like plaintiff’s. The court at first said, “It’s
really not a fair category as me-too evidence,” and “what it is, is
creating a picture that’s quite different than what you have
created in your case. So what it’s like to be . . . a student, a co-ed,
innocent co-ed at the college. And your picture is different than
the plaintiff’s picture. [¶] The juror—you can cross-examine
Ms. Gonzalez. Maybe she’s making everything up. Maybe you
can prove that. But the jury is entitled to know there is a
different view.” And: “So it’s my view that this is relevant
evidence, and it doesn’t fall—neatly fall into any of the categories
of me-too or somebody else or— [¶] It’s just like is this what the
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college was? Would I let my daughter go to the college? . . .
[B]ut the point is the jury is entitled to hear that.”
Defense counsel argued the testimony was “improper
character evidence that is showing an inaccurate allegation of a
propensity to harass, as opposed to actual facts,” and repeated
that Ms. Gonzalez was in a completely different role with
allegations that were nothing like plaintiff’s. The court
responded “in terms of looking at it with respect to the jury . . . .
[¶] [L]et’s say I have a daughter, college age, and she wants to
decide where am I going to go to college. Okay. Is this
information that you would like her to have? Is this information
that you would like to have? And then you could cross-examine
her. [¶] [B]ut it does seem to be relevant on that.”
Ms. Gonzalez then testified. She explained her work for
Mr. Barron. She met Dr. Irvin when he began working at
Southwest College; Dr. Irvin was Mr. Barron’s direct supervisor
and his office was next to Mr. Barron’s office. Several other
student workers, mostly female, were also working for
Mr. Barron. Mr. Barron began to require them to wear skirts
and high heels, and send him pictures of what they were going to
wear the next day. Two to three times a month, the group of
workers would have informal meetings with Mr. Barron and
Dr. Irvin in Dr. Irvin’s office.
Ms. Gonzalez testified extensively about the ways
Mr. Barron was inappropriate with female students who worked
for him. For example, Ms. Gonzalez testified that part of the job
with Mr. Barron was that “you were expected to share as much as
possible with him regarding your personal life.” “And I was
expected to tell him, like, who I was dating, what type of person I
was dating.”
Ms. Gonzalez testified about frequent meetings among
Mr. Barron, Dr. Irvin, and the female students who worked for
19
Mr. Barron. She testified: “And some of those conversations
were shared in the meeting with Dr. Irvin during—at some times.
And so Dr. Irvin knew what was going on in our office.”
Ms. Gonzalez testified that “these meetings still haunt me to this
day.” “So Dr. Irvin would sit here with his hand like this
(indicating), one of his legs over his other leg, and he would go
like—just push back and forth, like slowly, and just, like, laugh,
like, you know, not a giggle, not openly laugh, but agreeing with
the stuff that was being said.” “And Mr. Barron would say, ‘Oh,
what do you think?’ And he [Dr. Irvin] would, like agree with
what Mr. Barron was saying. You know, you need a—‘you don’t
know about love,’ or ‘you don’t know about who to date,’ and stuff
like that. [¶] So, you know, I just think he—it was like he was
entertained.” “So that was basically the only way we interacted
with Dr. Irvin. There was no other, like business matters that we
would discuss with him.”
“Mr. Barron actually, like, would teach us how to walk,
like—so that we can attract a man, and then he would share this
with Dr. Irvin. And, you know, like I said, Dr. Irvin was just
entertained. He never stopped anything. He never stopped
Mr. Barron and said, hey, that’s kind of inappropriate for you to
say. Nothing like that ever happened.”
Ms. Gonzalez testified that at one of the meetings with
Mr. Barron and Dr. Irvin, “[t]hey were talking about having a
pool party at Dr. Irvin’s house. And Mr. Barron was, like, oh,
yeah, you guys should bring your bikinis, and we’ll get in the
pool. [¶] And Dr. Irvin followed saying, yeah, bring your bikinis,
you know, stuff like that.”
Ms. Gonzalez recounted how Mr. Barron suspended her
after she brought her husband to a 50th anniversary gala, open
to the public, to which Mr. Barron had told her “only you women
can come.” Ms. Gonzalez complained to “the Title IX person” at
20
the college, showing her text messages of a sexual nature
between her and Mr. Barron. “Nothing happened from that
complaint,” and she then sued Mr. Barron, Dr. Irvin, and the
District, preceded by an October 7, 2017 complaint to the
Department of Fair Employment and Housing.
At plaintiff’s request, the trial court took judicial notice
that the Gonzalez complaint was filed in superior court and
stated, “You may consider the fact that it was filed.” The trial
court admitted the complaint into evidence over defense
objections, “to show that this complaint was filed and the
statements were made in the complaint.” The court further
stated that “[t]his is being admitted for the purpose of showing
that [the District] and Mr. Irvin had notice of this document as of
this date, and made the allegations that they made.”
Plaintiff’s counsel then questioned Ms. Gonzalez about
whether comments by Mr. Barron, alleged in her lawsuit, were
made during the meetings with Dr. Irvin. The defense objected
to reading any portion of the complaint; the court replied it had
taken judicial notice, and asked defense counsel if he understood
what judicial notice meant. Counsel replied, “Okay.”
Ms. Gonzalez then testified that Mr. Barron said several of the
things that were alleged in her complaint during the meetings, in
front of Dr. Irvin, and that Dr. Irvin was smiling when these
things were said. An example is: “ ‘[Mr. Barron] told the female
employees that they shouldn’t be out with boys, that they
shouldn’t f-u-c-k boys, fuck boys, because they don’t know how to
satisfy a woman.’ ” Another example is that Mr. Barron “told his
female employees how they should walk like they had the best
pussy out there.’ ” Ms. Gonzalez testified that these things were
said to her and other female students by Mr. Barron “with
Dr. Irvin in the room,” and Dr. Irvin’s reaction was to sit back
and laugh.
21
Ms. Gonzalez testified that she filed the lawsuit “[b]ecause
no one had done anything” and she “was still being harassed, still
being threatened over the phone and being called” (by
Mr. Barron), and she thought a lawsuit would put a stop to it.
She testified that when Mr. Barron suspended her “and the whole
lawsuit was filed and everything,” she was moved to the college
president’s office, to work under Dr. Noldon’s supervision.
Dr. Noldon treated Ms. Gonzalez like a new employee and did not
ask anything about the lawsuit. Ms. Gonzalez testified that she
did not expect Dr. Irvin “to do anything because he was part of
the behavior”; she was hoping Dr. Noldon would do something,
but “[s]he didn’t do anything either.”
Dr. Noldon was questioned at length about her handling of
Ms. Gonzalez’s claims about Mr. Barron. Dr. Noldon testified,
among other things, that she explained to Ms. Gonzalez what
Ms. Gonzalez needed to do if she wanted to file a formal
complaint.
Ms. Gonzalez testified that she dismissed her lawsuit
because her original attorney clashed with another attorney in
her firm and left the firm, but was unable to take cases with her,
and found another attorney for Ms. Gonzalez. She spoke to the
new attorney, “[a]nd then after that, it just became too much to
do.” “So I decided to just stop all this stuff back and forth and
having to repeat myself and go over these traumatic experiences.
It was – I was just trying to move on.”
When asked about the Gonzalez complaint, Dr. Roman, the
District’s interim vice chancellor, testified it was “not the
practice” to search for any sexual harassment lawsuits against
the subject of the investigation; “[t]he practice is look at the facts
on hand and make a determination whether or not the
complaints rise to a level of sexual harassment.”
22
c. Other evidence
As mentioned, many other witnesses testified on various
points. Among them was Denisha Hill, who was a student
worker in 2017 and tutored at the Student Success Center. She
testified that plaintiff told her that Dr. Irvin sexually harassed
her. Plaintiff told her this at some time during the 2017 spring
term.
Monrow Mabon represented Dr. Irvin in connection with
the allegations that resulted in his misdemeanor convictions. He
testified that Dr. Irvin was never convicted of any sex crime, and
that when a matter is expunged, “it’s as if the event never
occurred for all intents and purposes.” On cross-examination,
plaintiff’s counsel asked him if he represented Dr. Irvin “in a
domestic violence case where he was alleged to hold a gun to his
significant other, to her head,” and Mr. Mabon responded, “I don’t
remember all the facts, but there is a probability that I did.”
Then counsel asked if he represented Dr. Irvin in another case
“where he was alleged to have broken the neck of the significant
other.” Mr. Mabon responded that “the lines are a little bit
blurred” after more than 20 years, “but I’ve had the opportunity
to represent Mr. Irvin on issues and family matters in the past.”
Plaintiff’s counsel also questioned Mr. Mabon about sexual
predators and grooming, over defense objections.
Plaintiff testified that after the District’s response to her
complaint, she had to continue to work with Dr. Irvin for four
more years, until Dr. Irvin left the college. She did not claim that
any harassment occurred after October 2017. Plaintiff testified
extensively about her fears and the changes in her life as a result
of the harassment. She testified she was fearful; she dreaded
going to work and seeing him on campus. She stopped putting on
workshops and stopped teaching a night class she had taught for
15 years because she did not feel safe at night. Plaintiff testified
23
to the numerous activities she no longer participated in. She saw
a doctor twice a week for three weeks, but then stopped her
sessions because talking about what had happened did not make
her feel better and instead made her feel weaker. She watches
the clock all day and looks forward to going home, but also feels
unsafe living alone for the first time in her life. Several other
witnesses also testified about the change in plaintiff’s spirit, her
retreat into a shell, and the severity of her distress.
Over defense objections, the trial court referred to stalking
in one of the jury instructions. The jury was instructed:
“[Plaintiff] claims that she was harmed by Dr. Howard Irvin, and
[the District] is responsible for that harm because [the District]
negligently hired, supervised, or retained Dr. Howard Irvin. [¶]
To establish this claim, [plaintiff] must prove all of the following:
that [the District] hired Dr. Howard Irvin; that Dr. Howard Irvin
had a history of stalking, which [the District] failed to consider in
evaluating [plaintiff’s] claim of sexual harassment; that [the
District] knew or should have known that Dr. Howard Irvin
wasn’t fit and created a particular risk to others; and that [the
District’s] negligence in hiring a supervisor or retaining
Dr. Howard Irvin was a substantial factor in causing [plaintiff’s]
harm.”
The defense argued that the fact of the expungement
“makes that unfair because it was—because of the expungement
it was not something that was considered by [the District].” The
trial judge responded that judges and jurors “come with life
experiences. And when Ms. Gonzalez . . . was talking, I have a—
a 17-year-old granddaughter who’s now looking at colleges. . . .
[¶] If I had an 8- to 17-year old granddaughter who’s now looking
at colleges and actually is on the road as the case was going on,
and the question was asked, and then down the road, turned out
that there was some molestation and the college had known
24
about that, when they got the complaint and didn’t do anything
about it, I would be upset as a grandfather.” The court concluded
by saying, “That is my life situation right now. . . . So I think it’s
fair, I think the jury instruction as I asked it to be written is fair
in the context of this case and what—what the argument is as to
why that should have been considered. Whether the jury believes
that or not, that’s up to the jury.”
In her closing argument, plaintiff’s counsel began by telling
the jury that, in addition to being compensated for harassment
and retaliation, it was equally important to plaintiff to “stop[]
Dr. Irvin from ever being around, alone, with female students.”
The District was responsible “because they knew that [Dr. Irvin]
was sexually harassing other people. That he had a history, and
they failed to take action.” Counsel referred to “[Raquel]
Gonzalez [sic], these prior stalking allegations that he had
against him.” She referred to Ms. Gonzalez more than 15 times
in the course of her argument. At the end of her opening
argument, she urged the jury to find that Dr. Irvin acted with
“conscious disregard of the rights of Raquel Gonzales [sic], of
students, of faculty, of [plaintiff].” In that event, “[w]e’ll talk
about how we make sure that he never goes to any college and is
never alone with another woman again.”
d. The verdict and judgment
After deliberating for less than a day, the jury found in
favor of plaintiff on each of her four claims. As to the District,
the jury awarded plaintiff $8.5 million in noneconomic damages
($7 million for past mental suffering and emotional distress and
$1.5 million for future mental suffering and emotional distress).
As to Dr. Irvin, the jury awarded $1.5 million in noneconomic
damages for past mental suffering and emotional distress. The
jury found by clear and convincing evidence that Dr. Irvin acted
25
with malice or oppression, but in the punitive damages phase of
the trial, the jury declined to award any damages.
Judgment was entered on the jury verdict on December 7,
2022.
5. Postjudgment Proceedings
Defendants moved for a new trial, or in the alternative for
remittitur. Defendants argued the excessive noneconomic
damages justified a new trial, or at least should be reduced by the
court, and that evidentiary errors—improper admission of the
newspaper articles and the evidence of Dr. Irvin’s expunged
convictions—were prejudicial and prevented defendants from
receiving a fair trial. Defendants argued that if the court issued
a remittitur, it should be an award against the District “for no
more than $150,000 in past noneconomic damages and $100,000
in future noneconomic damages, with no damages awarded
against Dr. Irvin.”
Defendants also moved for partial judgment
notwithstanding the verdict, or in the alternative for remittitur,
based on excessive damages. The hearing on defendants’ motions
was held on February 15, 2023. The trial court made comments
at the hearing, and later in chambers, reflecting his personal
feelings and perspectives about societal and civil rights advances
of Black Americans and the progress our society has made
respecting women in the workplace since he was a college student
and then a young attorney decades ago. At times during the
hearing, Judge Draper appeared to become emotional and
repeatedly described the personal effect the testimony had on
him as a grandfather.
Defendant was represented by new counsel for the
posttrial proceedings, a Black woman, Janice P. Brown. The
District’s attorneys included two women, one of whom is Black,
but apparently, Ms. Brown was the only Black attorney at the
26
hearing on the posttrial motions. As described at length above,
the case involved sexual harassment, retaliation, and related
claims by a tenured professor. Race was not an issue in the case.
During the hearing, Judge Draper made many
inappropriate remarks, including comments using racial terms.
For example, Judge Draper stated that plaintiff and Dr. Irvin
came from the same neighborhood: “And I use the term that my
wife says is not politically acceptable. I think they are politically
acceptable, because I use terms like coal black and light brown
because I don’t think those are bad terms.”
Judge Draper asked Ms. Brown whether she had read the
Robert Caro books about Lyndon Johnson, and Ms. Brown said
she was not sure. Judge Draper continued: “This is not part of
my decision at all. I’m just telling you. The reason that the
South was able to stop civil rights for so long was the Southern
senators who were against miscegenation, they called it. You
know what ‘miscegenation’ is?” Ms. Brown responded: “I’m fully
aware of that, Your Honor.” Judge Draper stated: “Of course you
are. That’s my point. Both of the—when I went to Cal—and I’m
sorry if I’m boring you, but when I went to Cal, my wife and I, we
had seven really good black players all lined up at split end. And
the idea of one of them playing quarterback would have been
crazy.” Judge Draper mentioned Doug Williams, and Ms. Brown
stated that she was at that game. The court stated: “Both of the
quarterbacks, who were spectacular quarterbacks, were the
product of miscegenation. And the South would have had a lot
better football team if the Southern senators had not–”
Ms. Brown then directed the court to the damages issues raised
in defendants’ posttrial motions.
During the afternoon session of the hearing, Judge Draper
asked Ms. Brown whether she had “a date or something” when
she checked her watch. In chambers, he repeated a line told to
27
female secretaries at law firms when he was a young lawyer:
“You better be able to fuck better than you can type.”
Near the beginning of the afternoon session of the hearing,
Ms. Brown asked the judge why he thought Doug Williams (the
first Black quarterback to start and win a Super Bowl) was
relevant to the case. Judge Draper replied that it was not
relevant. “It has to do with what I feel society has come to, and
it’s a good thing.” Ms. Brown asked, “And what has society come
to that—I mean, is there any relation to the case? I mean, you
mentioned society has come to—what—having mixed Black men,
I mean, the football players were mixed race?” Judge Draper
said, “Yeah,” and Ms. Brown asked why that has some meaning
for the case.
Judge Draper responded: “You know, it doesn’t have
meaning for this case except that we’re all a part of the world.
We’re all a part of our United States. And I’m very proud of our
country. I’m very proud of how—75 percent of everybody were in
favor of Black Lives Matter right after Floyd was—was done.
Okay? Went back to the normal political but it’s—it doesn’t have
anything to do with our case. [¶] We have two plaintiffs who
couldn’t say there was a racial issue in this case because they
were both very Black people. Beautiful people, successful people,
people I’m proud of. . . . So, no. To answer your first question is I
can’t do any better than that.”
Ms. Brown then asked the trial court why he had
mentioned the south and Black and mixed-race people not being
accepted there. In response, Judge Draper mentioned Presidents
Kennedy and Johnson in the context of the civil rights movement
and getting the Civil Rights Act through. He mentioned his son-
in-law’s explanation for why southerners hate Lyndon Johnson.
He then said, “I’m just sharing a little history with you. When
28
you get older, you like to share history. It had absolutely nothing
to do with my decision. There was no racial issue in this case.”
At the close of the hearing, the court denied both of
defendants’ motions.
Judge Draper’s statements at the hearing led to a motion
by defendants on March 3, 2023, to disqualify him for cause.
Judge Draper issued a lengthy “recusal order” finding there were
no legal grounds for disqualification for cause but recusing
himself from further proceedings in the case. Among the
observations made in his recusal order, Judge Draper said that,
when he made the in chambers comment about female
secretaries doing a better job in giving sexual favors than typing,
he was trying to explain that this type of behavior was acceptable
at some firms in his early years of practice, and “I felt it a mark
of substantial progress that it was now widely and correctly
recognized as totally unacceptable. I thought this reference to
historical progress would be considered a plus by Ms. Brown in
an area her resume says is a vital interest of hers.”
Judge Draper also said in his recusal order that his delight
in Ms. Brown taking over defendants’ representation “actually
had nothing to do with ‘ethnicity.’ While Ms. Brown[] identifies
as African American, virtually every witness in this case,
including[] particularly plaintiff Doctor Odom and defendant
Doctor Irvin, were African Americans. What impressed me, and
encouraged me, about Ms. Brown[] taking over was that it had
seemed clear to me that someone running the show at [the
District], who I did not assume was [trial counsel], must have
been brain-dead to allow the case to continue even after the
showing of the first deposition. [¶] And I want to emphasize,
after that statement, that this view was formed by me, but not
expressed, solely based on the evidence I saw, starting with day
one [o]f the trial. It also was based in part on my own prior
29
professional experience.” Judge Draper said it seemed to him the
District had decided that “any ultimate loss will only be borne by
people like me and everyone else in the courtroom, the
taxpayers.”
Defendants sought writ review, and this court directed the
superior court to refer the disqualification motion to a neutral
judge. On October 16, 2023, Orange County Superior Court
Judge Cheri Pham disqualified Judge Draper, stating that the
evidence defendants submitted “establishes that during the
February 15, 2023 hearing, Judge Robert S. Draper made several
irrelevant and inappropriate comments about race and gender.
Defendants’ attorney was the only African American person in
the courtroom. Under these circumstances, and on the record
presented, a person aware of the facts might reasonably entertain
a doubt whether Judge Draper would be impartial.” Judge Pham
also observed that, in response to our alternative writ, Judge
Draper had vacated his recusal orders, and there was no verified
answer to defendant’s disqualification motion; so the judge was
deemed to have consented to his disqualification.
Judge Pham further concluded that Judge Draper was
disqualified on February 15, 2023, when he made the
inappropriate comments, before he had ruled on the motions, so
his rulings on defendants’ new trial and partial JNOV motions
were void.
On December 18, 2023, the newly assigned trial judge,
Judge Theresa M. Traber, ruled that the court had no jurisdiction
under Code of Civil Procedure section 660, subdivision (c), to rule
on defendants’ postjudgment motions.
Meanwhile, on March 17, 2023, defendants filed a notice of
appeal from the judgment and the postjudgment orders.
30
DISCUSSION
Defendants do not claim that the verdict was not supported
by substantial evidence, as indeed it was, in light of the extensive
irrelevant and prejudicial evidence that never should have been
admitted. Defendants challenge “the fairness of the trial given
Judge Draper’s bias, two prejudicial evidentiary rulings, and the
excessiveness of the emotional distress award as a matter of law
such that a new trial should have been granted.”
As stated at the outset, and as discussed post, we conclude
the evidentiary rulings at issue were manifestly erroneous and
prejudicial. Before turning to that discussion, we briefly address
and reject several other reasons plaintiff proffers for nevertheless
affirming the judgment.
1. Plaintiff’s Prefatory Claims
Plaintiff contends defendants forfeited any contention that
there was not substantial evidence to support the verdict because
“they did not fairly state all the evidence” as required by
appellate rules in an appeal challenging the sufficiency of the
evidence to support the verdict. However, as already noted,
defendants do not argue that the verdict is not supported by
substantial evidence. They challenge the fairness of a trial where
the trial court, in postjudgment proceedings, made irrelevant and
inappropriate comments about race and gender sufficient to
result in his disqualification for cause, and where, during the
trial, the court made evidentiary rulings that were a gross abuse
of discretion. In short, while it is the duty of an appellant in a
lack of substantial evidence case to present all the evidence
supporting the verdict, that rule does not apply in the
circumstances of this case.
Plaintiff also contends defendants forfeited the contention
they should get a new trial because, when they filed their motion
to disqualify Judge Draper, they did not request his
31
disqualification from trial of the case. But Judge Draper did not
reveal any biases until after the verdict, in posttrial proceedings,
and those revelations served only to enhance and suggest
motivations for his erroneous and prejudicial evidentiary rulings.
2. The Times’s Articles and Dr. Irvin’s Decades-old
Misdemeanor Convictions
Defendants moved in limine before trial to exclude any
evidence of Dr. Irvin’s expunged misdemeanor convictions. As
described above, Judge Draper admitted the 20-year-old
newspaper articles, stating they were “not admitted for the
truth,” but only to explain plaintiff’s reaction to reading them.
But later the court stated that trial exhibit No. 19 (plaintiff’s
responses to Ms. Alford’s questions with the articles attached)
would be admitted “[t]o the extent the exhibit states [plaintiff’s]
belief and what she believed and what she saw.” And, “[t]o the
extent it states hearsay,” the court admitted it “for her response
from the request from the college.”
The trial court’s ruling in effect allowed the jury to consider
the newspaper articles for their truth, notwithstanding their lack
of admissibility as hearsay and the heavy weight of prejudice.
Nowhere in the record do we find any Evidence Code section 352
analysis or balancing of the probative value and prejudicial effect
of this evidence by Judge Draper.
Further, Judge Draper reasoned the jury could infer that
Dr. Irvin was the person who slid the newspaper articles under
plaintiff’s office door, to intimidate her. But plaintiff’s opposition
to defendants’ motion in limine made no claim that Dr. Irvin put
the articles under her door, and the undisputed evidence at trial
was that another employee, Roy Fontenot, slid the articles under
her door, not to intimidate plaintiff but presumably to warn her.
It thus appears Judge Draper developed the theory on his own
32
that Dr. Irvin may have slid the articles under plaintiff’s door to
intimidate her, an impermissible act of judicial advocacy.
“Prejudice, under [Evidence Code] section 352, refers to
‘ “ ‘ “ ‘evidence which uniquely tends to evoke an emotional bias
against the [moving party] as an individual and which has very
little effect on the issues.’ ” ’ ” ’ [Citation.] When the evidence at
issue involves prior bad acts, substantial prejudice is inherent in
the evidence and its admission requires ‘extremely careful
analysis.’ The evidence should be examined pursuant to
section 352. Generally, such evidence is admissible only if it has
‘substantial’ probative value.” (Argueta v. Worldwide Flight
Services, Inc. (2023) 97 Cal.App.5th 822, 837.)
Here, the prejudicial effect of the articles far exceeded any
relevance to this case. Unlike the victim described in the 20-
year-old articles, here there was no prior relationship between
plaintiff and Dr. Irvin: no stalking, no restraining orders, no
criminal charges. Plaintiff does not claim that Dr. Irvin ever
touched or threatened her. He never showed plaintiff a gun or
brought up the subject of guns; plaintiff is the one who kept
bringing up the question whether he had a gun.
After the article describing Dr. Irvin’s criminal trial in 1998
was admitted, the jury was left to decide whether the college was
negligent in hiring or retaining Dr. Irvin in light of his
misdemeanor convictions. The defense’s explanation involved
Dr. Roman’s testimony about how and why live scans of a
criminal record are used in the hiring process, and that
misdemeanor convictions that are set aside or dismissed are not
considered. (See p. 17, ante.) The District contends it could not
rely on the 20-year-old misdemeanor convictions in making its
hiring decisions because California law prohibits employers from
considering expunged misdemeanor convictions in most
circumstances. (Lab. Code, § 432.7, subd. (a)(1).) Yet, as
33
discussed ante, Judge Draper instructed the jury that the
elements of plaintiff’s claim of negligent hiring or retention
included that Dr. Irvin had a history of stalking which the
District failed to consider in evaluating plaintiff’s claim of sexual
harassment.
Plaintiff argues that it was defendants who put the live
scan results in evidence during Dr. Roman’s testimony, so they
“have forfeited the issue” of the trial court’s abuse of discretion in
admitting evidence of Dr. Irvin’s convictions. We think not. The
District never should have been put in the position of having to
explain to the jury why the college hired or retained Dr. Irvin
despite the old convictions.
Plaintiff argues that even if there was error, it was
harmless. To support this contention plaintiff cites People v. Case
(2018) 5 Cal.5th 1, 41, where the court stated that “[t]he danger
of undue prejudice is . . . lessened if evidence of the uncharged
acts was ‘no more inflammatory than the testimony concerning
the charged offenses.’ ” Plaintiff asserts the content of the two
newspaper articles “was no more inflammatory than all of the
conduct [plaintiff] and the other harassed women outlined in
their testimony.” We cannot agree; the articles themselves
clearly demonstrate otherwise.
Plaintiff also cites criminal cases finding admission of a
prior offense to be harmless error, such as where a prior
conviction was “a very small part of the People’s case and was
unlikely to have swayed the jury.” (People v. Washington (2021)
61 Cal.App.5th 776, 789.) Those cases have no factual
similarities to this one.
3. The Raquel Gonzalez Testimony
We likewise conclude that the trial court erred in admitting
the testimony from Ms. Gonzalez—a student—about her internal
college complaint of sexual harassment against a different
34
administrator than Dr. Irvin, Johnel Barron, and the lawsuit she
later filed, and dismissed, which included allegations against
Dr. Irvin. Defendants objected to Ms. Gonzalez’s testimony,
arguing the internal college complaint she made was against
Mr. Barron and did not name Dr. Irvin; her later-filed lawsuit
which included claims against Dr. Irvin was inadmissible;
Ms. Gonzalez as a student was not similarly situated to a faculty
member like plaintiff; and her testimony was improper character
evidence to show a propensity for harassment at the college.
“Courts have sanctioned the use of ‘me too’ evidence, which
is evidence of an employer’s alleged gender bias ‘in the form of
harassing activity against women employees other than the
plaintiff’ in certain circumstances.” (Pinter-Brown v. Regents of
University of California (2020) 48 Cal.App.5th 55, 96 (Pinter-
Brown); id. at p. 89 [me-too evidence is “evidence that an
employer waged the same type of discrimination against other
employees as it did against a plaintiff”].) However, “[t]he ‘me-too’
doctrine . . . does not permit a plaintiff to present evidence of
discrimination against employees outside of the plaintiff’s
protected class to show discrimination or harassment against the
plaintiff. [Citation.] Although ‘me too’ evidence can be
admissible to prove intent, motive, and the like with respect to
the plaintiff’s own protected class, it is never admissible to prove
an employer’s propensity to harass.” (Id. at p. 96.) “Additionally,
the admissibility of ‘me too’ evidence hinges on how closely
related the evidence is to the plaintiff’s circumstances and theory
of the case.” (Id. at p. 89.)
Here, even the trial court observed that the Gonzalez
testimony was “really not a fair category as me-too evidence,” and
“it doesn’t fall—neatly fall into any of the categories of me-too or
somebody else . . . .” But the court allowed the testimony on the
basis that it was relevant to show “what it’s like to be . . . a
35
student, a co-ed, innocent co-ed at the college.” Rather than me-
too evidence, “It’s just like is this what the college was? Would I
let my daughter go to the college?” And, “Is this information that
you would like [your college-age daughter] to have? Is this
information that you would like to have?” Having expressed
these personal opinions, Judge Draper placed no limits on the
scope of Ms. Gonzalez’s testimony. Ms. Gonzalez testified for well
over half a court day.
Needless to say, the standard for admissibility of “me-too”
evidence is not whether the information is something a parent
would like to have in considering a college admissions decision.
The evidence must be “closely related . . . to the plaintiff’s
circumstances and theory of the case.” (Pinter-Brown, supra,
48 Cal.App.5th at p. 89.) Ms. Gonzalez was a student working at
the school whose harassment claims were aimed at Mr. Barron.
In her initial internal complaint, she did not even mention
Dr. Irvin.
By contrast, plaintiff was a tenured faculty member and
colleague of Dr. Irvin’s, not a student worker. Her allegations of
sexual harassment against Dr. Irvin were significantly different
in kind from those in the Gonzalez complaint. Among other
things, including repeated comments about her body, plaintiff
alleged Dr. Irvin continually pressured her to have sex with him,
and retaliated against her for refusing to do so by attacking her
program and her staff. That “theory of the case” is entirely
different from Ms. Gonzalez’s testimony that Mr. Barron made
inappropriate statements to students who worked with him. In
short, Ms. Gonzalez was not similarly situated to plaintiff. We
see no basis for admitting the evidence as “me-too” evidence and,
as we have seen, the trial court did not either—despite admitting
it to show “what it’s like to be . . . a student, a co-ed, innocent co-
ed at the college”—an inadmissible propensity theory.
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The court failed entirely to analyze the admissibility of
Ms. Gonzalez’s testimony under Evidence Code section 352 and to
consider the reasons for not admitting it. Admission of the
Gonzalez testimony presented a classic abuse of discretion under
section 352: it resulted in a minitrial on issues irrelevant to
plaintiff’s claims. The jury was likely to confuse Ms. Gonzalez’s
claims with those of plaintiff, which was encouraged by counsel’s
closing argument repeatedly referring to the Gonzalez testimony.
The prejudicial effect is demonstrated by the outsize award of
$10 million in noneconomic damages in a case where plaintiff’s
status at the college is unchanged and no economic damages were
incurred.
Plaintiff insists the Gonzalez testimony was admissible to
show notice to the District of Dr. Irvin’s harassment, “in support
of [plaintiff’s] negligent supervision/retention and failure to
prevent harassment claims,” and also “for Gonzales’ [sic]
corroboration of interactions she observed between [plaintiff] and
Irvin.” As to the latter claim, plaintiff does not provide any
record references to any such testimony.
The “notice” contention relates to the admission of the
Gonzalez lawsuit into evidence. Plaintiff states she requested
only that the court take judicial notice of the filing dates of the
lawsuit and DFEH complaint. But plaintiff’s counsel later moved
the complaint into evidence over defense objections, and the court
admitted it to show defendants “had notice of this document as of
this date, and made the allegations that they made.” Plaintiff
then proceeded to question Ms. Gonzalez about whether
comments her complaint alleged were made by Mr. Barron were
made when Dr. Irvin was present, reading those allegations into
the record (as described ante, at pp. 21-22).
This was inflammatory testimony, and Ms. Gonzalez
testified a great deal more about Mr. Barron’s behavior,
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Mr. Barron’s “prey[ing] on women,” Mr. Barron’s threats to end
her career, her fear when she filed the lawsuit and at the time of
her testimony, and her hopes that her testimony would result in
Mr. Barron’s removal from his position. None of this testimony
was necessary to prove the District “received notice of Irvin’s
harassment before [plaintiff] complained.” Plaintiff asserts the
Gonzalez testimony was more probative than prejudicial, but our
review of the record confirms the opposite.
Finally, plaintiff argues that even if admission of the
Gonzalez evidence was an abuse of discretion (and it was), the
error was harmless. She says defendants have not shown a
miscarriage of justice because other evidence “ ‘directly
implicated’ ” the District, and the Gonzalez testimony was not
“ ‘central’ ” to the jury’s verdict. As we have seen, the Gonzalez
testimony was a significant part of the trial and was emphasized
at closing argument. We are not persuaded the error was
harmless, particularly in light of the size of the verdict.
4. Conclusion
Defendants also contend that the jury’s noneconomic
damages awards, totaling $10 million, were excessive. Plaintiff
continued to work at the District through the close of trial and
had no economic damages. Defendants contend there is no
precedent for this award absent economic or debilitating injuries,
and the award was grossly disproportionate to awards in
comparable cases.
We agree the excessive verdict is an additional reason why
the case must be retried. The jury made those awards after
hearing highly damaging evidence it should not have heard; a
jury instruction that referred to proving Dr. Irvin’s history of
stalking; and closing arguments that emphasized the
inadmissible evidence and the importance of stopping Dr. Irvin
“from ever being around, alone, with female students.”
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On a final note, while we do not know whether, as
defendants contend, Judge Draper’s “persistent racial and gender
bias” motivated his rulings at trial, we cannot rule out that
possibility in light of the extreme and bizarre comments he made
at the posttrial motions hearing and his ensuing disqualification
for cause. We need not decide whether bias was the reason for
his arbitrary and capricious evidentiary rulings; the rulings were
an abuse of discretion irrespective of his motivations. One thing
we can say for sure is, the rulings were not motivated by a
devotion to the law of evidence.
DISPOSITION
The judgment is reversed and the cause is remanded to the
trial court for a new trial. Defendants shall recover costs on
appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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