Opinion

Doe v. Super. Ct.

Court: California Supreme Court
Filed: Jul 27, 2023
Status: Published
Cited by: 0 cases
Authority: More cited than 23.7%

The opinion

IN THE SUPREME COURT OF

CALIFORNIA

JANE S.D. DOE et al.,

Petitioners,

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

MOUNTAIN VIEW SCHOOL DISTRICT,

Real Party in Interest.

S272166

Second Appellate District, Division Two

B313874

Los Angeles County Superior Court

BC712514

July 27, 2023

Chief Justice Guerrero authored the opinion of the Court, in

which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and

Evans concurred.

JANE S.D. DOE v. SUPERIOR COURT

S272166

Opinion of the Court by Guerrero, C. J.

Jane S.D. Doe (plaintiff) sued the Mountain View School

District (real party in interest, hereinafter the District) to

recover for sexual abuse committed by her fourth-grade teacher

when she was eight years old. The District, seeking to

undermine plaintiff’s claim for emotional distress damages

resulting from the teacher’s conduct, planned to introduce

evidence that plaintiff had been molested a few years later by

another person — and that this subsequent molestation caused

at least some of plaintiff’s emotional distress injuries and

related damages.

Evidence Code section 1106, subdivision (a), generally

protects — or shields — civil litigants who allege “sexual

harassment, sexual assault, or sexual battery” by barring

evidence of a “plaintiff’s sexual conduct . . . to prove consent by

the plaintiff or the absence of injury to the plaintiff.” (Italics

added.)1 Yet subdivision (e) of section 1106 also specifies: “This

section shall not be construed to make inadmissible any

evidence offered to attack the credibility of the plaintiff as

provided in Section 783.” In turn, section 783, subdivision (d),

provides that a trial court may allow introduction of evidence

“regarding the sexual conduct of the plaintiff,” so long as that

evidence “is relevant pursuant to Section 780” (governing

Subsequent statutory references are to the Evidence Code

unless otherwise noted.

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witness credibility, generally) and “not inadmissible pursuant to

Section 352” (governing a court’s discretion to exclude relevant

evidence under certain circumstances).

Plaintiff filed a pretrial motion seeking to exclude

evidence of the subsequent molestation. The trial court ruled

that the challenged evidence was (1) not protected by any shield

statute, and (2) relevant and admissible with regard to whether

plaintiff’s emotional distress was caused solely by the teacher’s

conduct or by a combination of his conduct and the subsequent

molestation. In light of that ruling, both parties referred to the

subsequent molestation in their opening statements to the jury.

We then stayed the trial and directed the Court of Appeal to

issue an order to show cause. The appellate court obtained

briefing, held oral argument, and published an opinion finding

the evidence regarding the subsequent molestation admissible.

(Doe v. Superior Court (2021) 71 Cal.App.5th 227 (Doe).) We

granted review of that decision to address the interrelationship

of the statutory provisions and the admissibility of the

challenged evidence.

We conclude that section 1106, subdivision (e), may permit

admission of evidence that would otherwise be excluded under

section 1106, subdivision (a). But such admissibility is subject

to the procedures set out in section 783 and especially careful

review and scrutiny under section 352. As we shall explain, the

Legislature devised section 783 to protect against unwarranted

intrusion into the private life of a plaintiff who sues for sexual

assault, by identifying and circumscribing evidence that may be

admitted to attack such a person’s credibility. Correspondingly,

section 352, as applied in this setting, requires special informed

review and scrutiny, designed to protect such a plaintiff’s

privacy rights and to limit the introduction of evidence

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concerning such a person’s sexual conduct. And yet, these

crucial protections appear not to have been applied in this case.

Accordingly, we direct the Court of Appeal to remand the matter

to the trial court for further proceedings. Thereafter, the trial

court will need to determine whether, assuming the jury

remains empaneled, trial with that jury should proceed.

I. FACTS AND PROCEDURE

A. Molestation of Plaintiff by Her Teacher in 2009–

2010

Plaintiff is one of six former students suing the District

and its former employee, plaintiff’s teacher, Joseph Baldenebro,

concerning sexual abuse committed by Baldenebro. A first

amended complaint, filed in October 2020, alleges Baldenebro is

“currently in the custody of the California Department of

Corrections.” The complaint asserts negligence based on the

District’s hiring and retention of Baldenebro; its supervision of

him; its failure to warn, train, and educate against his abuse;

and its failure to report his abuse. The complaint also alleges

sexual harassment against the District and Baldenebro. (Civ.

Code, § 51.9.) Regarding plaintiff, who was born in May 2001,

the complaint alleges Baldenebro “molested [her] on multiple

occasions” in 2009–2010. Although the complaint asserts

generally that each minor victim was “molested” by Baldenebro

between 2002 and 2017, the complaint further alleges much

more graphic conduct as to plaintiff in particular. The

complaint contends she has suffered “extensive physical,

psychological and emotional damages,” which she eventually (in

2016) “began to discover . . . were caused by the childhood sexual

harassment” by Baldenebro.

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B. Discovery Revealing That in 2013 Plaintiff

Suffered a Subsequent Sexual Molestation by a

“Teenaged Family Friend”

Through discovery, the District learned that

approximately three years after the original abuse by

Baldenebro, plaintiff suffered “another sexual incident” in 2013,

perpetrated by a “teenaged family friend.” Nothing in the record

sheds light on the nature or extent of the 2013 incident.

C. Pretrial Rulings Regarding Admissibility of

Evidence Concerning the 2013 Molestation

In May 2021, plaintiff filed a motion in limine invoking

sections 1106 and 352 as a shield against admission of evidence

concerning the 2013 molestation. At a pretrial hearing in mid-

July 2021, the trial court raised the applicability of “section 782”

which, along with corresponding section 1103, governs the

admissibility of evidence regarding “sexual conduct” and related

procedures to attack the “credibility of the complaining witness”

in criminal cases. Clearly, the trial court meant to refer to

section 783, which, along with corresponding section 1106,

governs admissibility of evidence concerning “sexual conduct”

and related procedures used to attack the “credibility of the

plaintiff” in civil cases. (Regarding the interrelationship and

background of these four key statutes, see pt. II., post.) The trial

court expressed doubt whether “section 782” governs admission

of the 2013 molestation because, the court asserted, that statute

“[t]ypically . . . relates to voluntary sexual activity of the victim.”

But “just to be on the safe side,” the court asked the District to

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submit a motion seeking to introduce the evidence under

“section 782.”2

The District filed an application as directed, arguing that

“section 782” did not govern because “[t]his action is not a

criminal prosecution.” The District also asserted it did not plan

to use the 2013 molestation evidence to impeach the plaintiff,

yet sought to introduce the evidence “out of an abundance of

caution.” In sealed filings it set out what it knew about the 2013

molestation and included a declaration concerning the relevance

of that evidence: “to establish an alternative explanation for

[plaintiff’s] psychological harm and condition.” Specifically, the

District asserted, whereas plaintiff “alleges past and future

emotional distress and psychological injuries from the

Baldenebro molestation” in 2009–2010, “[t]he 2013

incident . . . may be the cause of harm from 2013 forward.”

After considering this additional briefing, the trial court

held a further hearing during jury selection, just a few days

before the parties were set to make opening statements.

Counsel for the District acknowledged that its briefing

concerning the court’s requested motion had been “a little

ambiguous,” and sought to “clarify” that it did indeed seek to

question plaintiff concerning “concurrent cause[s] of harm.”

Thereafter the trial court continued to refer to section 782,

when the court should have referenced and invoked section 783.

The District, in its subsequent briefing and arguments, noted the

inapplicability of section 782 to civil actions, yet failed to expressly

acknowledge that section 783 applied. The Court of Appeal below

acknowledged the trial court’s (and parties’) erroneous invocation

of sections 1103 and 782, but viewed the court and the parties as,

in practical effect, having addressed and applied sections 1106 and

783. (See Doe, supra, 71 Cal.App.5th at pp. 235, 241.)

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Counsel explained that he intended to ask the plaintiff if she

was “the victim of a sexual abuse episode” in 2013 but would

“not examine her about the details or the specifics of the

incident.” Counsel acknowledged plaintiff’s “right to privacy,”

but argued that the District has a right “to show alternative

causes of that harm.”

The trial court, still erroneously referring to sections 1103

and 782 instead of sections 1106 and 783, ruled that the

evidence of the 2013 molestation fell outside the scope of any

shield statute. The court reasoned that the statutory term

“sexual conduct” (which is used in all four statutes) should be

understood to cover only voluntary conduct or a “willingness to

engage in” such conduct. The court determined the 2013

molestation necessarily reflects “involuntary” conduct, falling

outside those sections, because plaintiff was an unwilling

“victim of inappropriate sexual behavior.” Hence, the court

held, the “2013 . . . incident is not . . . sexual conduct within the

meaning of” the shield statutes.

Having so concluded, the trial court next proceeded to

consider the admissibility of evidence concerning the 2013

molestation under section 780, which as previously noted sets

out grounds the finder of fact may rely upon to assess witness

credibility; and under section 352, which prescribes a balancing

test for relevant evidence that may create a substantial danger

of undue prejudice if admitted.

Regarding witness credibility, the court addressed the

District’s argument that the jury should learn about the

subsequent molestation insofar as it relates to plaintiff’s

emotional distress damages. In this respect, the court

analogized the 2009–2010 abuse by Baldenebro and the

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subsequent 2013 molestation to a situation posed when a

litigant is involved in successive automobile accidents, and

asserted that “if there’s a subsequent auto case . . . and the

plaintiff is injured and the judge excludes evidence of that, I

think it would be reversible error.” The court highlighted some

of the issues facing plaintiff in the wake of the molestation by

Baldenebro — namely, anger with her parents and “issues with

boys.” The court surmised that the “second incident” may have

exacerbated these issues and that the District should be entitled

to elicit information about them in “the most minimally invasive

manner by asking [plaintiff] hopefully one single question.” The

court acknowledged plaintiff’s “right to privacy,” but found the

2013 molestation “highly and directly relevant on the defense

damage case” concerning whether plaintiff’s emotional distress

was caused solely by Baldenebro’s conduct or by a combination

of his conduct and the 2013 molestation.

Turning to undue prejudice under section 352, the trial

court stated it would exercise its discretion to allow the evidence

concerning the 2013 molestation, reasoning that its “probative

value is not substantially outweighed by the probability” that

admission would cause undue delay or prejudice, confusion, or

otherwise mislead the jury.

D. Writ Proceedings and Opening Statements at

Trial

Immediately after the trial court’s ruling, counsel for

plaintiffs petitioned the Court of Appeal for a writ of mandate

ordering the lower court to exclude evidence regarding the 2013

molestation and requested a stay of the trial proceedings

pending the appellate court’s review. In a hearing in the trial

court on that same day, the court confirmed that the District

would be permitted to “mention” the 2013 molestation in its

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opening statement. The Court of Appeal initially granted an

immediate stay of the trial later that day, but ultimately denied

the writ and dissolved the stay the following day.

On the next court day, plaintiffs’ counsel advised the trial

court and the District that he had filed a petition for review in

this court and request for an immediate stay. Counsel

confirmed that he was “not requesting a stay of this trial” from

the trial court and “preserv[ed] our objection to the subsequent

sexual abuse incident . . . but in light of the Court of Appeal’s

ruling, we will go forward and we will address that in our

opening as well because of the ruling.”

In the ensuing opening statements, counsel for plaintiffs

told the jury that his clients would recount “inappropriate

behavior” by teacher Baldenebro dating from the early 2000’s

until 2017. Counsel briefly described the conduct each of the six

student plaintiffs had experienced with Baldenebro:

inappropriate touching, kisses, being made to sit on

Baldenebro’s lap, and feeling a bulge in his pants. But, counsel

asserted, “[U]nfortunately [plaintiff] got the worst abuse.” In

addition to being subjected to conduct like the others, counsel

told the jury, plaintiff also was subjected to Baldenebro making

her rub his penis until he ejaculated; inserting his fingers into

her vagina; and inserting his penis into her mouth and

ejaculating. Further, counsel asserted, Baldenebro admonished

plaintiff: “If you ever tell anybody, I’ll tell them that you let me

do this to you.”

Plaintiff’s counsel eventually briefly foreshadowed the

additional sexual molestation plaintiff had suffered, telling the

jury: “The evidence will show that unfortunately [plaintiff] had

a subsequent incident with a . . . boy” in 2013. Moreover,

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counsel acknowledged, when plaintiff first reported

Baldenebro’s conduct to the police, she did not reveal “the

entirety of the trauma that she went through.” Finally, counsel

impliedly acknowledged that plaintiff’s psychotherapy

treatment records related to the 2013 incident would not

mention Baldenebro’s conduct.

Thereafter, counsel for the District began his opening

statement by conceding that “Baldenebro did most of the things

claimed by the plaintiffs” and acknowledging, “Baldenebro

caused the plaintiffs emotional distress, and as I’ve said from

the outset, the District has already admitted it was negligent

and . . . should have supervised him better.” The issue before

the jury, counsel for the District asserted, is the extent to which

the District caused each plaintiff’s harm. Counsel previewed the

events that all six student plaintiffs allege occurred with respect

to each of them, and the corresponding asserted emotional

injuries of each. With regard to five of the six student plaintiffs,

counsel generally conceded that their allegations established

some level of depression and resulting psychological harm, but

pointed out that in most instances other unrelated stressors —

such as dealing with a sibling’s drug abuse, a brother’s death, a

father’s incarceration, or anxiety caused by being a new

mother — contributed in some manner to each plaintiff’s

cumulative psychological harm.

Counsel for the District then turned to plaintiff and

observed that she is “the only one who makes” more “graphic

allegations.” Counsel asserted that when plaintiff, at the age of

18, became aware of Baldenebro’s arrest, she reported his abuse

to the sheriff’s department, where she was interviewed by a

female deputy. At that time, counsel told the jury, plaintiff

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“didn’t say anything about” the more graphic allegations

described by her trial counsel.

Counsel for the District next stated that plaintiff

“underwent therapy from October 2016 to April 2017” but

during those sessions “never mention[ed] or stat[ed] anything

about Baldenebro.” Moreover, counsel asserted, when plaintiff

resumed therapy in April 2019, and at that time mentioned

“abuse by a school teacher,” she did not describe any graphic

conduct like that highlighted by her counsel.

Counsel for the District told the jury that discovery

showed that plaintiff stated, under oath, that she attributes her

emotional distress to “the abuse and conduct [of] Baldenebro” in

the “2009–2010 time frame.” Counsel then addressed the

evidence concerning the 2013 molestation: “[C]ompletely

unrelated to this, and tragically in 2013[,] she was sexually

molested and abused unrelated to . . . the school district or

Baldenebro — by a family friend or relative.” “[O]ur expert

[psychiatrist] . . . will tell you you can’t just separate them, that

the mental issues she’s got are in part caused by her interaction

with Baldenebro, whatever that was, and the completely

unrelated molestation in 2013 that she’s still suffering [from]

separately and apart.” (Italics added.)

Counsel concluded by telling the jury that the District’s

psychiatrist expert interviewed plaintiff five months earlier for

“three hours . . . and diagnosed [plaintiff] with posttraumatic

stress disorder, PTSD. [The District’s psychiatrist] believes it

was caused by the unrelated 2013 sexual abuse incident and by

Baldenebro. Both.” And so, counsel argued, Baldenebro is

indeed part of the cause of plaintiff’s emotional distress, but “it’s

a whole other stressor going on in this life that was traumatic

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and awful that she experienced unrelated to [the District] and

Baldenebro.”

After opening statements, four of the witnesses for the

student plaintiffs and the other claimants testified. Before trial

resumed the next morning, this court, acting in connection with

plaintiff’s then-pending petition for review, stayed further trial

proceedings. Two days later, we granted the petition for review

and immediately transferred the matter back to the Court of

Appeal with directions to issue an order to show cause. The

Court of Appeal expeditiously did so. The trial court then

advised the jury that the matter had been stayed, but

admonished: “You are still jurors in this case” and would be

advised “when proceedings do resume and when you will be

required to appear . . . for [resumption of] this trial.”

E. Proceedings in the Court of Appeal

The Court of Appeal continued our stay of trial

proceedings and obtained further briefing. The District did not

defend the trial court’s view that the evidence failed to qualify

as “sexual conduct” under what the District belatedly

acknowledged as the relevant statutes, sections 1106 and 783.

Instead, the District asserted the evidence is admissible to

attack plaintiff’s credibility under section 783.

In its opinion denying plaintiff’s petition for a writ of

mandate, the Court of Appeal held that the trial court erred in

referring to inapplicable sections 1103 and 782 (governing

criminal cases) instead of sections 1106 and 783 (governing civil

cases), and more significantly, by ultimately ruling that no

shield statute governed. The Court of Appeal explained that

contrary to the trial court’s understanding, the term “sexual

conduct” as used in the shield statutes encompasses both a

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plaintiff’s voluntary conduct and sexual abuse to which a

plaintiff has been involuntarily subjected; hence, admission of

the evidence regarding the 2013 molestation must be analyzed

under sections 1106 and 783. (Doe, supra, 71 Cal.App.5th at

pp. 236–240.) The appellate court nonetheless determined that

the trial court had, in essence, “conducted a hearing [under

section 783] as statutorily required.” (Id. at p. 235.) The Court

of Appeal “anticipated” that plaintiff would eventually testify

that all of her present emotional distress is attributable to

Baldenebro and to no other cause. (Id. at p. 232.) The court

then characterized the trial court’s ultimate evidentiary ruling

as ambiguous and proceeded to interpret that ruling narrowly,

viewing it as “admitting the 2013 molestation for impeachment

purposes only.” (Id. at p. 235, italics added; see also id. at

p. 241.)

Having construed the record and the trial court’s ruling in

this manner, the Court of Appeal proceeded to address the

section 352 balancing inquiry. The appellate court determined

that the trial court had “applied the same section 352 analysis

called for by” sections 1106 and 783. (Doe, supra, 71 Cal.App.5th

at p. 235, italics added.) Moreover, the Court of Appeal

concluded, the trial court did not abuse its discretion in

declining to exclude the challenged evidence under section 352.

(Doe, at pp. 240–242.) The appellate court lifted the stay of trial

proceedings and instructed the trial court to either assess any

prejudice flowing from the empaneled jury’s exposure to the

mentioning of the 2013 incident during opening statements or

to restart the trial with a new jury.

Plaintiff and the other claimants filed a second petition for

review, which we granted.

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II. GENERAL AND STATUTORY BACKGROUND

In order to understand and place into perspective the key

statutes at issue here — sections 1106 and 783 — we find it

useful to briefly survey the history that led to them. As shown

below, by enacting these provisions, the Legislature sought to

extend reforms governing criminal prosecution of sexual assault

crimes by making corresponding reforms to the Evidence Code’s

treatment of civil suits for sexual assault or harassment.

Early California statutes and decisions concerning

criminal prosecutions for rape evinced considerable solicitude

toward the accused and skepticism regarding the alleged

victim.3 Relatedly, courts permitted defendants to present

evidence of a rape victim’s past sexual history to refute the

prosecution’s charge that a sexual act was nonconsensual.4

Indeed, to prove the statutory crime of rape, the prosecution

was required to establish physical resistance by a victim. (People

v. Fleming (1892) 94 Cal. 308, 311 [noting that the applicable

statute required a showing that the victim “ ‘resists, but her

resistance is overcome by force or violence’ ”].) An early decision

by this court asserted that “non-resistance” would be seen as “an

invitation to [a] defendant to persist in his endeavors.” (People v.

Brown (1874) 47 Cal. 447, 450.) In 1980, our Legislature amended

California’s rape statute “to delete most references to resistance.”

(People v. Barnes (1986) 42 Cal.3d 284, 292.)

Our opinion in People v. Pantages (1931) 212 Cal. 237

observed that it would be error “ ‘to exclude evidence which tends

to show prior unchaste acts’ ” of an adult woman, “ ‘either with the

defendant or with other men.’ ” (Id. at p. 262.) We quoted

approvingly from one of our prior decisions: “ ‘ “This class of

evidence is admissible for the purpose of tending to show the

nonprobability of resistance upon the part of the prosecutrix. For

it is certainly more probable that a woman who has [had sexual

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In 1981, our Legislature, apparently spurred by then-

recent corresponding federal reforms,5 amended sections 1103

and 782 to restrict the ability of a criminal defendant to present

evidence of a sexual assault victim’s past sexual history. (Stats.

1981, ch. 726, §§ 1–2, pp. 2875–2877; see generally People v.

Fontana (2010) 49 Cal.4th 351, 362 (Fontana) [“The

Legislature’s purpose in crafting these limitations is manifest

and represents a valid determination that victims of sex-related

offenses deserve heightened protection against surprise,

harassment, and unnecessary invasions of privacy”].) Under

section 1103 as amended, evidence of “the complaining witness’

sexual conduct . . . is not admissible by the defendant in order to

prove consent by the complaining witness.” (§ 1103, former

subd. (b)(1), renumbered as § 1103, subd. (c)(1).) And yet the

relations] voluntarily in the past would be much more likely to

consent, than one whose past reputation was without blemish, and

whose personal conduct could not truthfully be assailed.” ’ ” (Id. at

pp. 262–263, quoting People v. Johnson (1895) 106 Cal. 289, 293.)

As explained in Priest v. Rotary (N.D.Cal. 1983) 98 F.R.D.

755, 762 (Priest), by 1978, “Congress became so disturbed at the

treatment of rape victims that it enacted [Federal Rules of

Evidence, rule] 412.” The federal rule provides: “[E]vidence

offered to prove that a victim engaged in other sexual behavior” or

“to prove a victim’s sexual predisposition” is inadmissible in

proceedings “involving alleged sexual misconduct.” (Fed. Rules

Evid., rule 412(a)(1–2), 28 U.S.C.) Yet the federal rule recognizes

exceptions applicable in both criminal and civil cases. Regarding

the former, the exceptions include admission of “evidence whose

exclusion would violate the defendant’s constitutional rights.” (Id.,

rule 412(b)(1)(C).) In civil cases, “the court may admit evidence

offered to prove a victim’s sexual behavior or sexual predisposition

if its probative value substantially outweighs the danger of harm

to any victim and of unfair prejudice to any party.” (Id.,

rule 412(b)(2).)

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amended statute provided an exception: “This subdivision does

not make inadmissible any evidence offered to attack the

credibility of the complaining witness as provided in

Section 782.” (Id., former subd. (b)(4), renumbered as § 1103,

subd. (c)(5).)

Section 782, as correspondingly amended in 1981, in turn

establishes procedures to be followed in criminal cases when

“evidence of sexual conduct of the complaining witness is offered

to attack the credibility of the complaining witness.” (Id.,

subd. (a).) The statute calls for a written motion; an affidavit

filed under seal accompanied by an offer of proof; a hearing

outside the presence of any jury at which there may be

questioning of the alleged crime victim; and finally, an

assessment of admissibility under section 352, followed by an

order specifying what evidence may be introduced by the

defendant and the nature of questions permitted. (§ 782,

subd. (a)(1)–(4).)

Most recently, and directly relevant here, in 1985 our

Legislature enacted civil law reforms extending the above-

described protections afforded by the criminal rape shield

statutes to the civil context. (Stats. 1985, ch. 1328, § 1, p. 4654.)

The legislation, Senate Bill No. 1057 (1985–1986 Reg. Sess.),

added sections 1106 and 783 to the Evidence Code, which

substantially track their criminal counterparts, and made

corresponding amendments to the Code of Civil Procedure

(placing limitations on civil discovery concerning sexual

conduct)6 and the Government Code (addressing administrative

See Code of Civil Procedure, former section 2036.1, amended

and renumbered as section 2017.220 (authorizing, in subd. (a),

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adjudications, and imposing substantially similar limitations on

discovery concerning sexual conduct and on admission of such

evidence).7

Within Senate Bill No. 1057 (1985–1986 Reg. Sess.), our

Legislature set out to clarify, in uncodified section 1 of its

enactment, its purpose and the policy it sought to achieve. It

recounted that prior to the amendment of sections 1103 and 782,

“victims in criminal prosecutions for rape . . . often ran the risk

of finding their own moral characters on trial during the

prosecution of their assailants” and explained: “It is the intent

of the Legislature to take similar measures” as specified in those

sections “in sexual harassment, sexual assault, or sexual battery

cases.” (Stats. 1985, ch. 1328, § 1, p. 4655.) In this regard, the

Legislature declared: “The discovery of sexual aspects of

complainant[s’] lives, as well as those of their past and current

friends and acquaintances, has the clear potential to discourage

complaints and to annoy and harass litigants. That annoyance

and discomfort, as a result of defendant or respondent inquiries,

is unnecessary and deplorable. Without protection against it,

individuals whose intimate lives are unjustifiably and

offensively intruded upon might face the ‘Catch-22’ of invoking

their remedy only at the risk of enduring further intrusions into

details of their personal lives in discovery, and in open quasi-

judicial or judicial proceedings.” (Id., pp. 4654–4655.) Finally,

trial courts to permit “discovery concerning the plaintiff’s sexual

conduct” only if the “party seeking discovery . . . establish[es]

specific facts showing that there is good cause”).

See Government Code, former sections 11507.6 and 11513,

renumbered as section 11440.40 (correspondingly limiting

discovery and admission of evidence concerning a litigant’s sexual

conduct).

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echoing the then-recent federal court decision in Priest, supra,

98 F.R.D. at page 762, the Legislature concluded: “[T]he use of

evidence of a complainant’s sexual behavior is more often

harassing and intimidating than genuinely probative, and the

potential for prejudice outweighs whatever probative value that

evidence may have. Absent extraordinary circumstances,

inquiry into those areas should not be permitted, either in

discovery or at trial.” (Stats. 1985, ch. 1328, § 1, p. 4655.)

III. DISCUSSION

Preliminarily, we observe that the threshold issue

addressed by the Court of Appeal — determining that, contrary

to the trial court’s understanding, the term “sexual conduct” as

used in sections 1106 and 783 encompasses both a plaintiff’s

voluntary conduct and sexual abuse to which a plaintiff has been

involuntarily subjected — is uncontested by the parties now.

(Doe, supra, 71 Cal.App.5th at pp. 236–240.) The District has

also abandoned its “argument that the 2013 molestation should

have been admitted for all purposes.” (Id. at p. 240.)

Accordingly, as the appellate court held, admission of the

evidence regarding the 2013 molestation must be analyzed

under sections 1106 and 783.

As explained below, we conclude that section 1106,

subdivision (e), may permit admission of evidence that would

otherwise be excluded under section 1106, subdivision (a). But

such admissibility is subject to the procedures set out in section

783, together with careful review and scrutiny under

section 352. The Legislature devised section 783 to identify and

circumscribe evidence that may be admitted to attack a sexual

assault plaintiff’s credibility. Correspondingly, section 352, as

applied in this setting, requires special informed review and

scrutiny designed to protect such a plaintiff’s privacy rights and

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limit introduction of evidence concerning that person’s sexual

conduct.

A. Does Section 1106, Subdivision (e), Allow

Admission of the Same Evidence Prohibited

Under Subdivision (a) To Attack the Credibility

of a Witness’s Testimony as it Relates to

Apportionment of Injury in the Calculation of

Damages?

As noted earlier, section 1106, subdivision (a), provides

generally that “[i]n any civil action alleging conduct which

constitutes sexual harassment, sexual assault, or sexual

battery, . . . evidence of specific instances of the plaintiff’s sexual

conduct . . . is not admissible by the defendant in order to prove

consent by the plaintiff or the absence of injury to the

plaintiff . . . .” (Italics added.) Yet the same statute’s

subdivision (e) states: “This section shall not be construed to

make inadmissible any evidence offered to attack the credibility

of the plaintiff as provided in Section 783.”

In turn, section 783 lists detailed procedures to be followed

“[i]n any civil action alleging conduct which constitutes sexual

harassment, sexual assault, or sexual battery, if evidence of

sexual conduct of the plaintiff is offered to attack credibility of

the plaintiff under Section 780,” which governs witness

credibility generally. The procedures set out in section 783,

subdivisions (a)–(c), call for a written motion, an affidavit

accompanied by an offer of proof, and a hearing outside the

presence of any jury at which there may be questioning of the

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plaintiff.8 Next, section 783, subdivision (d), provides: “At the

conclusion of the hearing, if the court finds that evidence

proposed to be offered by the defendant regarding the sexual

conduct of the plaintiff is relevant pursuant to Section 780, and

is not inadmissible pursuant to Section 352, the court may make

an order stating what evidence may be introduced by the

defendant, and the nature of the questions to be permitted. The

defendant may then offer evidence pursuant to the order of the

court.”

Viewing this scheme as adopted in 1985 as a whole and

giving full effect to all of its words and parts (Smith v. LoanMe,

Inc. (2021) 11 Cal.5th 183, 190), it is clear that section 1106,

subdivision (a), precludes admission of evidence concerning a

plaintiff victim’s sexual conduct as substantive evidence “in

order to prove consent by the plaintiff or the absence of injury to

the plaintiff.” (Italics added; see also Black’s Law Dict. (11th ed.

2019) p. 703, col. 1 [defining substantive evidence as that

“offered to help establish a fact in issue”].) In spite of this, the

Court of Appeal below concluded section 1106, subdivision (e),

and section 783 establish procedures under which “the very

These parts of section 783 read: “(a) A written motion shall

be made by the defendant to the court and the plaintiff’s attorney

stating that the defense has an offer of proof of the relevancy of

evidence of the sexual conduct of the plaintiff proposed to be

presented. [¶] (b) The written motion shall be accompanied by an

affidavit in which the offer of proof shall be stated. [¶] (c) If the

court finds that the offer of proof is sufficient, the court shall order

a hearing out of the presence of the jury, if any, and at the hearing

allow the questioning of the plaintiff regarding the offer of proof

made by the defendant.” The only significant difference between

these provisions and the criminal statutory counterpart,

section 782, is that the latter requires the affidavit to be filed and

kept under seal. (See § 782, subd. (a)(2) & (5).)

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same evidence” of a victim’s sexual conduct may be admitted —

when relevant under section 780 and necessary and appropriate

under section 352 — to permit a defendant to impeach the

credibility of a plaintiff’s testimony concerning causation of

injury or apportionment of damages. (Doe, supra,

71 Cal.App.5th at p. 240; see also Black’s Law Dict., supra, at

p. 700, col. 2 [defining impeachment evidence as that “used to

undermine a witness’s credibility”]; McDermott, Note,

California Rape Evidence Reform: An Analysis of Senate Bill

1678 (1975) 26 Hastings L.J. 1551, 1557 [“substantive evidence

is admitted to prove or disprove any disputed fact or issue that

is of consequence to the determination of the action, while

credibility evidence is that which supports or attacks the

credibility of the witness”].)

Plaintiff and amicus curiae on her behalf, Consumer

Attorneys of California, assert that the Court of Appeal’s

interpretation renders subdivision (a) of section 1106 “a nullity”

and that “[t]he statement to be impeached” pursuant to

subdivision (e) of section 1106 “cannot be one that is

inadmissible under” subdivision (a) of that same section.

1. The appellate opinion in Rioz provides guidance

In considering these objections to the appellate court’s

interpretation of the statutory language, we find an early Court

of Appeal opinion addressing the criminal statutory

counterpart, section 782, to be particularly instructive.

People v. Rioz (1984) 161 Cal.App.3d 905 (Rioz), which was

decided a few months before the bill that enacted the 1985

corresponding civil legislation was first introduced, recognized

the tension within the statutory scheme created by

sections 1103 and 782. Significantly, the court in Rioz

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reconciled that tension in a manner that allowed admission

under section 1103, former subdivision (b)(4) (now subd. (c)(5)),

and 782 of the very same type of consent evidence that was

inadmissible as substantive evidence under section 1103, former

subdivision (b)(1) (now subd. (c)(1)).

In Rioz, supra, 161 Cal.App.3d 905, it was alleged that the

defendants raped the victim. The defendants asserted the

victim had agreed to have sex with them for pay, and at trial

sought to introduce evidence that the victim had been convicted

of prostitution “as well as certain aspects of her activities as a

prostitute.” (Id. at p. 914.) The trial court excluded the evidence

under what is now subdivision (c)(1) of section 1103. (Rioz, at

p. 914.) We will quote in some detail the Court of Appeal’s

discussion addressing what it termed “the inherent tension” (id.

at p. 915) between that statute and section 782.

The appellate court began by commenting: “There is

necessarily a certain amount of overlap between the issues of

the victim’s consent in a rape or other sex offense case and the

victim’s credibility. Presumably, any complaining witness in a

rape case will deny consent to the sexual acts complained of; to

avoid the harassment which had traditionally plagued

complaining witnesses in cases of this type, the Legislature

excluded evidence of prior sexual activity by the complaining

witness with persons other than the defendant in order to prove

consent.” (Rioz, supra, 161 Cal.App.3d at p. 916.) The court

observed that under what is now subdivision (c)(1) of

section 1103, “a defendant in a rape case cannot, based solely

upon the victim’s testimony and . . . presumed denial of consent,

introduce evidence that [the victim] engaged in sexual activity

with” one, 10, or 100 other persons, “nor that [the victim]

engaged in such activity freely or for monetary compensation.

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This rule properly prevents the victim of sexual assault from

being . . . placed on trial.” (Rioz, at p. 916.)

Nevertheless, the Court of Appeal in Rioz recognized that

what is inadmissible under what is now subdivision (c)(1) of

section 1103 can become admissible for impeachment under

what is now subdivision (c)(5) of section 1103. The court

reasoned: “[O]nce the defendant, in accordance with the

procedural requirements of . . . section 782, makes a sworn offer

of proof concerning the relevance of the sexual conduct of the

complaining witness to attack her credibility, even though it is

the underlying issue of consent which is being challenged, then

the absolute protection afforded by . . . section 1103, [former]

subdivision (b)(1) [now subdivision (c)(1)] gives way to the

detailed procedural safeguards inherent in . . . section 782.”

(Rioz, supra, 161 Cal.App.3d at p. 916, italics omitted & added.)

The court in Rioz explained: “It is significant that the

express provisions of . . . section 782 vest broad discretion in the

trial court to weigh the defendant’s proffered evidence, prior to

its submission to the jury, and to resolve the conflicting interests

of the complaining witness and the defendant. Initially, the trial

court need not even hold a hearing unless it first determines

that the defendant’s sworn offer of proof is sufficient. Moreover,

even after a hearing outside the presence of the jury at which

the complaining witness is questioned about the defendant’s offer

of proof, the statute specifically reaffirms the trial court’s

discretion, pursuant to . . . section 352, to exclude relevant

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evidence which is more prejudicial than probative.” (Rioz,

supra, 161 Cal.App.3d at p. 916, italics added.)9

The appellate court in Rioz concluded: “This discretion in

the trial court, along with the other safeguards inherent

in . . . section 782, including the requirement that the defendant

tender a sworn offer of proof of the relevancy of the complaining

witness’ sexual conduct to attack her credibility, all operate to

provide a rational resolution of the tension existing between”

section 782 and what is now set out in subdivision (c)(5) of

section 1103. (Rioz, supra, 161 Cal.App.3d at p. 917, italics

added.) The court continued: “Such a resolution recognizes both

the right of the victim to be free from unwarranted intrusion

into [that person’s] privacy and sexual life beyond the offense

charged and the right of a defendant who makes the necessary

sworn offer of proof in order to place the credibility of the

At this point the Rioz court provided “[a]n example . . . to

demonstrate the wisdom of this statutory framework: A defendant

charged with forcible rape makes the requisite written motion,

supported by a sworn affidavit, offering to prove that the

complaining witness, a convicted prostitute, agreed to have sex

with the defendant for money and charged him with rape to get

even with him when he refused to pay her. However, not only has

the complaining witness denied that the sexual activity with the

defendant was [consensual], but other evidence establishes

without contradiction that the complaining witness was beaten in

connection with the event. Given the potentially prejudicial

impact of a prostitution conviction on the victim’s testimony that

she did not consent, the trial court, in the exercise of its discretion,

may determine that the injuries suffered by the victim are wholly

inconsistent with the defendant’s offer of proof and either reject

the sufficiency of the offer of proof in the first instance or exclude

evidence of the prostitution conviction, after a hearing, pursuant

to . . . section 352.” (Rioz, supra, 161 Cal.App.3d at pp. 916–917.)

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complaining witness at issue to fully establish the proffered

defense.” (Ibid.)

Finally, the Court of Appeal in Rioz cautioned that

“section 782 applies only when the credibility of the complaining

witness is attacked. Great care must be taken to insure that this

exception to the general rule barring evidence of a complaining

witness’ prior sexual conduct, i.e., . . . section 1103, subdivision

(b)(1) [now (c)(1)], does not impermissibly encroach upon the rule

itself and become a ‘back door’ for admitting otherwise

inadmissible evidence.” (Rioz, supra, 161 Cal.App.3d at pp. 918–

919, italics added.)

The District extracts the following lesson from Rioz: “Just

as there is necessarily a certain amount of overlap between a

criminal complainant’s or a civil plaintiff’s consent in a criminal

or civil sexual assault case and her credibility, there is

necessarily a certain amount of overlap between the issues of a

civil plaintiff’s [emotional distress] damages and her credibility.

To be sure, there will be some overlap between [plaintiff’s

emotional distress] damages and her credibility. . . . Thus, once

a defendant makes a sworn offer of proof concerning the

relevance of the sexual conduct to attack the plaintiff’s

credibility,” the protection afforded by section 1106, subdivision

(a) “ ‘gives way [under the exception articulated in that section’s

subdivision (e)] to the detailed procedural safeguards inherent

in’ ” section 783. (Quoting Rioz, supra, 161 Cal.App.3d at

p. 916.)

Indeed, this is ultimately the understanding arrived at by

the Court of Appeal below. The appellate court observed that

corresponding key parts of the 1985 legislation — Evidence

Code section 783, as well as Code of Civil Procedure 2017.220

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

case approach that sometimes allows for the discovery and

limited admissibility of a plaintiff’s sexual conduct, which puts

them in some ‘tension’ with section 1106,” subdivision (a). (Doe,

supra, 71 Cal.App.5th at p. 239.) The appellate court reasoned

that “in cases like this one,” in which a plaintiff who seeks “to

recover emotional distress damages will typically need to testify

to establish that the defendant’s conduct has inflicted emotional

distress,” such “testimony will make evidence of emotional

distress involuntarily inflicted by others through sexual abuse

relevant to impeach her testimony.” (Ibid., italics added.)

Significantly, the appellate court acknowledged, “In such cases,

the very same evidence” that section 1106, subdivision (a)

“excludes becomes admissible — subject to balancing under

section 352 — under section 783 to impeach” the plaintiff/victim

witness. (Doe, at pp. 239–240, italics added.)

The Court of Appeal conceded that plaintiff’s restrictive

view of the statutory scheme — under which the exception

articulated in section 1106, subdivision (e), and section 783

would be “categorically unavailable when the proposed

impeachment regards the plaintiff’s consent or the absence of

injury prohibited as substantive evidence under [subdivision (a)

of] section 1106” — might “be one way to try to harmonize the

inherent tension between sections 1106 and 783.” (Doe, supra,

71 Cal.App.5th at p. 242.) But, the court concluded, that

interpretation “is not one supported by the plain text of either

statute: Section 1106 expressly names section 783 as an

exception to its prohibitions, and section 783 looks to a case-by-

case balancing of considerations under section 352.” (Ibid.)

We agree, as recognized in Rioz, supra, 161 Cal.App.3d

905 and by the Court of Appeal below, that there is inherent

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tension within the criminal (§§ 1103, 782) and civil (§§ 1106,

783) shield provisions. The tension within the criminal

provisions was highlighted soon after the Legislature enacted

the original version of section 782. (Review of Selected 1974

California Legislation, Criminal Procedure (1975) 6 Pacific L.J.

125, 265 [observing that because “the procedures enacted by

section 782 may in some cases permit the trier of fact to hear

evidence of the victim’s sexual conduct under the procedures

delineated above and for the purpose of determining credibility,

section 782 has the effect of permitting the trier of fact to hear

the same evidence which section 1103 (relating to consent) will

normally serve to exclude”].) The Court of Appeal in People v.

Chandler (1997) 56 Cal.App.4th 703, 708 (Chandler) implicitly

acknowledged this tension in the course of stressing the need to

“narrowly exercis[e]” and “sparingly” employ the discretion to

admit evidence under the criminal provisions. More recently,

we reiterated Rioz’s admonition concerning admission of

evidence under the criminal shield statutes: “[W]e emphasize

that ‘[g]reat care must be taken to insure that this exception to

the general rule barring evidence of a complaining witness’ prior

sexual conduct . . . does not impermissibly encroach upon the

rule itself and become a “back door” for admitting otherwise

inadmissible evidence.’ ” (Fontana, supra, 49 Cal.4th at p. 363,

quoting Rioz, supra, 161 Cal.App.3d at pp. 918–919.) Other

decisions applying the discovery shield statutes (see ante, fn. 6),

have echoed this caution in the course of warning against

allowing unwarranted discovery of such evidence.10

See, e.g., Vinson v. Superior Court (1987) 43 Cal.3d 833, 843

(Vinson) (quoting the Legislature’s uncodified statement of intent

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And yet great care does not mean that an express

exception prominently articulated in the statutory scheme

should not be given full effect in appropriate circumstances. We

conclude that contrary to plaintiff’s reading, subdivision (a) of

section 1106 does not contemplate categorical exclusion of

evidence concerning “other sexual conduct” when that evidence

is sought to be admitted under the same section’s subdivision (e)

to challenge the credibility of the plaintiff as provided in

section 783.11

2. Sections 1106, subdivision (e) and 783 address

overall witness credibility — not exclusively false

testimony

Plaintiff also suggests in her opening brief that evidence

admissible under section 1106, subdivision (e) and section 783

should be “reserved for when the conduct being placed before the

jury has bearing on credibility because it tends to call into

and strictly construing “good cause” for civil discovery, requiring

“specific facts justifying inquiry”); Barrenda L. v. Superior Court

(1998) 65 Cal.App.4th 794, 801 (Barrenda L.) (stating that “good

cause” for civil discovery requires more than “[t]he mere fact that

a plaintiff has initiated an action seeking damages for extreme

mental and emotional distress”); Knoettgen v. Superior Court

(1990) 224 Cal.App.3d 11, 14 (Knoettgen) (asserting that courts

must be “vigilant” when allowing civil discovery concerning prior

sexual abuse); Mendez v. Superior Court (1988) 206 Cal.App.3d

557, 573 (Mendez) (observing that emotional distress is a normal

product of sexual abuse and to regularly allow discovery intruding

on such privacy would violate the Legislature’s intent).

Plaintiff suggests this conclusion is inconsistent with the

language of and the result in Knoettgen, supra, 224 Cal.App.3d 11,

an early case applying the civil discovery shield statute (see ante,

fns. 6 & 10). But the Knoettgen decision is distinguishable: It

mentioned sections 1106 and 783 only in passing and did not

construe or apply them.

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question whether the victim is offering false testimony.” (Italics

added.) In support, plaintiff relies on People v. Franklin (1994)

25 Cal.App.4th 328 (Franklin), in which the Court of Appeal

briefly addressed the criminal statutory counterpart,

section 782 — and then ultimately allowed, without applying

that statute, evidence that a crime victim had previously made

false complaints of molestation. In her reply brief, plaintiff

appears to retreat from her prior assertions, stating that she has

“never argued” that the credibility exception is reserved for

probing whether a victim is offering false testimony.

In any event, such a narrow reading of the statutes is not

supported by the language of section 1106, subdivision (e),

which allows admission of evidence to address “the credibility of

the plaintiff” when the safeguards of section 783 are followed.

The sections apply whenever a plaintiff’s credibility as a witness

is at issue — such as when memory or accuracy may be

disputed. When evidence regarding a plaintiff’s credibility

concerns that person’s sexual conduct, the requirements of

sections 783, 780, and 352 work together to prevent admission

of evidence that is unnecessarily harassing, irrelevant, or

unduly prejudicial. But contrary to plaintiff’s suggestion,

section 783 is not addressed to “false testimony” in the form of

an assertion that a witness previously made, but which has been

determined to be untrue. (See People v. Tidwell (2008)

163 Cal.App.4th 1447, 1456 [discussing and applying Franklin,

supra, 25 Cal.App.4th 328 and holding corresponding § 782

“inapplicable” when the defense sought to use a complaining

witness’s “allegedly false complaints” (contrasted with the

witness’s prior sexual conduct) “as impeachment evidence”].)

We perceive nothing in the statutory language that

purports to limit the credibility exception as plaintiff suggests.

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Instead, we read the scheme as contemplating that in

appropriate and limited circumstances, admission of “other

sexual conduct” evidence may indeed be warranted under

section 1106, subdivision (e), and section 783 for

impeachment — even when that same evidence is inadmissible

as substantive evidence under section 1106, subdivision (a) —

subject, of course, to the credibility and section 352 analysis

contemplated by the Legislature’s scheme.

3. Legislative history does not alter, but supports, this

interpretation

To the extent the statutory language might be deemed

ambiguous in this respect, nothing in the legislative history calls

into question this interpretation. A key analysis prepared by

the Senate Committee on the Judiciary revealed an

understanding and intent not to completely or categorically bar

such evidence, but instead, simply to extend the Legislature’s

earlier reforms governing criminal prosecution of sexual assault

crimes to the civil arena. (Sen. Com. on Judiciary, Analysis of

Sen. Bill No. 1057 (1985–1986 Reg. Sess.) as introduced Mar. 7,

1985, pp. 1–2 (hereinafter Senate Committee Analysis).) The

objective was to prevent “unjustified inquiry into the prior

conduct of sexual harassment complainants,” not to foreclose all

inquiry entirely. (Id. at p. 2, italics added.) The committee

analysis described the proposed legislation, and what eventually

was enacted as sections 1106 and 783, as designed to “control

unnecessary inquiry into the sexual lives of alleged harassment

victims,” to provide “some protection” to victims who faced

“unjustified intrusion into their personal lives,” and to “curb[]

such abuse.” (Sen. Com. Analysis, at p. 2, italics added.) The

same analysis cited and described two then-recent decisions —

United States District Court Judge Thelton Henderson’s opinion

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in Priest, supra, 98 F.R.D. 755 and the administrative decision

in Department of Fair Employment and Housing v. Fresno

Hilton Hotel (1984) No. 84-03, FEHC Precedential Decisions

1984–1985, CEB 2, p. 1 — and characterized them as

“[p]recedent for limiting inquiry.” (Sen. Com. Analysis, at p. 2,

italics added.) The committee analysis noted that, just as

criminal defendants remained able to attack the credibility of an

alleged victim by following specified procedures, so too would

civil defendants under the proposed legislation. (Id. at pp. 3–4.)

The analysis observed that under the existing law governing

criminal cases, “specific instances of the complaining witness’

sexual conduct is generally not admissible to prove consent” (id.

at p. 4, italics added), and the proposed legislation “would

extend this protection to” civil victims. (Ibid.) Nevertheless, the

analysis stated, civil defendants, like criminal defendants,

would be permitted to introduce such evidence to “attack the

credibility of witnesses” under procedures that eventually would

be enacted as section 783. (Sen. Com. Analysis, at p. 4.) It

appears from this and related history materials that the

Legislature viewed the 1985 legislation as limiting — but not

categorically barring, nor as reserved for addressing “false

testimony” — evidence concerning a plaintiff victim’s sexual

conduct when offered to attack the credibility of the witness’s

testimony.

B. Did the Court of Appeal Properly Determine

That the Trial Court Essentially Complied with

Section 783?

As observed earlier, the Court of Appeal acknowledged the

trial court’s key errors with respect to sections 1106 and 783 —

namely, its failure to focus on those statutes, instead of

sections 1103 and 782, and its conclusion that, in any event, no

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shield law applies here because the 2013 molestation reflects

plaintiff’s involuntary sexual conduct. Yet, the appellate court

reasoned, it was “tasked with reviewing the court’s ruling — not

the rationale it used to get there.” (Doe, supra, 71 Cal.App.5th

at p. 241.) In that regard, the appellate court concluded, the

trial court ultimately “conducted a hearing as statutorily

required” under sections 1106 and 783. (Doe, at p. 235, italics

added; see also id. at pp. 240–241.)12 We do not agree with the

Court of Appeal that the trial court, in essence, conducted a

proper hearing under section 783.

As a preliminary matter, it is apparent from the record

that the trial court, having invested considerable resources over

nine days in the midst of the COVID-19 pandemic in the

challenging task of selecting 12 jurors and eight alternate

jurors, was understandably and indeed admirably focused on

expeditiously resolving numerous pretrial matters in order to

proceed with trial. But having erroneously found no shield

statute to be applicable, the trial court neglected to focus on, and

benefit from, the key procedural and structural protections set

out in section 783.

The Court of Appeal stated that “the trial court adhered to

all but one of the specific procedural requirements” of section 783.

(Doe, supra, 71 Cal.App.5th at p. 241.) Namely, the appellate court

acknowledged, the trial court did not require the District to

support its section 783 motion with an affidavit that includes an

offer of proof as required by section 783, subdivision (b). Instead,

as noted earlier, the District had made such an offer of proof via

its sealed declaration, which was submitted in support of its

“section 782” motion. When parties properly follow the dictates of

Code of Civil Procedure section 2015.5, a declaration would equally

satisfy the affidavit requirement of Evidence Code section 783.

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1. Failure to hold a hearing out of the presence of the

jury, allowing questioning of plaintiff regarding

the District’s offer of proof

The trial court did not hold a more robust “hearing out of

the presence of the jury,” at which it would “allow the

questioning of the plaintiff regarding the offer of proof made by

the defendant.” (§ 783, subd. (c), italics added.) Consequently,

the record reflects no information about the nature of the 2013

molestation, how the evidence regarding that molestation

compares with the evidence concerning the 2009–2010 abuse, or

how plaintiff might characterize and testify regarding those

events. Most significantly, such questioning of plaintiff would

have been expected to address the issue of whether she will

claim that 100 percent of her emotional distress damages is

attributable to the 2009–2010 Baldenebro abuse and none to

any other factor, including the 2013 molestation.

The Court of Appeal acknowledged that there had been no

such questioning of plaintiff, but reasoned that the parties must

have been aware of — and waived — that statutory right and

thus were not prejudiced. (Doe, supra, 71 Cal.App.5th at

p. 241.)13 We disagree with the appellate court’s analysis. The

initial issue at the trial court’s in limine hearing was the

applicability of the shield law. Once the court found the shield

law inapplicable, the parties had no reason or clear mechanism

The appellate court asserted: “There is nothing to indicate

that either party was denied its statutory right to

question . . . plaintiff at the hearing (§ 783, subd. (c)); because this

right exists whether a hearing is conducted under section 782 or

783, the parties were aware of this right when the court

erroneously invoked section 782, yet opted not to question

plaintiff.” (Doe, supra, 71 Cal.App.5th at p. 241.)

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to invoke their right to question plaintiff under that law. The

Court of Appeal erred in construing their failure to do so as a

waiver. Moreover, it is not apparent why the parties would have

waived such an opportunity to flesh out the record. Nor is it

evident why the trial court failed to prompt the parties to take

advantage of the statutory procedure in order to achieve clarity

in these crucial respects. But precisely because there was no

such elucidation on the record, the Court of Appeal found itself

forced to fill the gaps: The appellate court found it necessary to

assume that in fact plaintiff will testify that 100 percent of her

emotional distress damages is attributable to the 2009–2010

Baldenebro abuse and none to any other factor, including the

2013 molestation. (Doe, at p. 232.)

2. Failure to make an order stating what evidence

may be introduced by the District and the nature of

the questions to be permitted

The trial court also failed to properly undertake to “make

an order stating what evidence may be introduced by the

defendant, and the nature of the questions to be permitted,”

which in turn would have allowed the District to later “offer

evidence pursuant to the order of the court.” (§ 783, subd. (d).)

Consequently, the record reflects no understanding between the

court and the parties about the governing constraints on what

evidence may be introduced and what questions may be asked

regarding that evidence. Again, the Court of Appeal found itself

forced to address one of the consequences of this void by

characterizing the trial court’s ruling as ambiguous and then by

interpreting it “as admitting evidence of the 2013 molestation

solely for purposes of impeaching . . . plaintiff” regarding

damages. (Doe, supra, 71 Cal.App.5th at p. 241, italics added;