Opinion

Odom v. L.A. Community College Dist.

Court
California Court of Appeal
Filed
Apr 7, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 34.7%

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

2

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.

3

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

4

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.’ ”

5

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.

6

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

7

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

8

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

9

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

10

“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

11

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.”

12

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

13

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

14

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

15

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

16

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

17

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

18

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.

36

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,

37

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.”

38

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.

39

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.