California Court of Appeal Nov 2, 2015 No. E051961AUnpublished
Filed 11/2/15 Ruelas v. Harper CA4/2 Opinion following rehearing NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
GUILLERMO RUELAS et al., E051961
Plaintiffs and Respondents, (Super.Ct.Nos. RCVRS083017 & RCVRS085541) v. OPINION JERRY HARPER et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. David A. Williams,
Judge. Affirmed in part; reversed in part with directions.
Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief Assistant
Attorney General, Alicia M.B. Fowler, Acting Chief Assistant Attorney General, Steven
M. Gevercer and Kristin G. Hogue, Assistant Attorneys General, Richard J. Rojo, Joel A.
Davis, Martin Ageson and Donna M. Dean, Deputy Attorneys General, for Defendants
and Appellants Jerry Harper and Xavier Ruiz.
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Child & Marton, Bradford T. Child and Michael R. Mauge for Defendant and
Appellant James Shelby.
Law Offices of Gary A. Dordick, Gary A. Dordick; The Eisenberg Law Firm,
Cara L. Eisenberg; Law Offices of Peter Goldstein and Peter Goldstein for Plaintiffs and
Respondents Guillermo Ruelas, Oscar Miranda and Alejandro Espinoza.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller and Mitchell A. Shapiro for
Pitchess v. Superior Court, supra, 11 Cal.3d 531.) Those procedures apply in both
criminal and civil cases. (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 390.)
Evidence Code section 1045 provides: “(a) Nothing in this article shall be construed to
affect the right of access to records of complaints, or investigations of complaints, or
discipline imposed as a result of those investigations, concerning an event or transaction
in which the peace officer . . . participated, or which he or she perceived, and pertaining
to the manner in which he or she performed his or her duties, provided that information is
relevant to the subject matter involved in the pending litigation.
“(b) In determining relevance, the court shall examine the information in
chambers in conformity with [Evidence Code] Section 915, and shall exclude from
disclosure:
“(1) Information consisting of complaints concerning conduct occurring more
than five years before the event or transaction that is the subject of the litigation in aid of
which discovery or disclosure is sought.” (Italics added.)
The Legislature’s purpose in enacting Evidence Code section 1045 was to protect
peace officers’ privacy interests. (See, e.g., Haggerty v. Superior Court (2004) 117
Cal.App.4th 1079, 1085.) In enacting that section, the Legislature defined as irrelevant,
and therefore exempt from disclosure, complaints about conduct that occurred more than
five years before the events that form the basis of current litigation.
As to Shelby, the “conduct . . . that is the subject of the litigation,” to which the
prior complaints are relevant, began as to the present plaintiffs in mid-October 2002. The
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conduct underlying the Beck-Rivera complaint, which was discussed in the Westlund
report and again in the OIG report, occurred sometime between July 1996 and January
1997. In that the conduct occurred more than five years before mid-October 2002, the
court erred in admitting the evidence against Shelby. As to Harper and Ruiz, however,
the Beck-Rivera complaint was admissible. The conduct “that was the subject of the
litigation” regarding Harper and Ruiz was their deliberate indifference, or their “failure to
protect” plaintiffs against a risk of injury with actual knowledge of the underlying facts.
Thus, as to Ruiz, his “failure to protect” arguably began upon his review of the 1999
Westlund investigation; Harper’s “failure to protect” arguably began upon his review of
the 2000 OIG report. As such, the Beck-Rivera conduct which occurred between July
1996 and January 1997 was relevant to the defendants’ failure to protect up through July
2001 (the fifth anniversary of the Beck-Rivera conduct).5
As such, the court did not err in allowing into evidence the Beck-Rivera complaint
on the issue of notice relative to the theory of a “failure to protect.”6
5 We also note that the personnel records at issue are not those of Harper or Ruiz. While Shelby and his employer may claim the privilege, there does not appear to be any basis for Harper and Ruiz to assert a privilege over records that are not theirs. (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 57 [“Both the individual officer and the law enforcement agency are entitled to claim the confidential personnel records privilege of Penal Code section 832.7.”].)
6 See Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 639 [in noncriminal matter where petitioner seeks personnel records of nonparty public safety officers, the court must balance the litigant’s discovery interest against the officer’s confidentiality interest].)
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C. Objections to Polygraph Evidence
Defendants challenge the admission of polygraph evidence relating to the Beck-
Rivera accusations. We agree that as to Shelby and Harper there was insufficient
foundation to establish the reliability of the polygraph result for purposes of using said
evidence for its truth in establishing Shelby’s common plan. (People v. Kelly (1976) 17
Cal.3d 24.) We do not agree as to Ruiz. First, Evidence Code section 351.1 does not
preclude the use of polygraph evidence in civil cases. (See People v. Fields (2009) 175
Cal.App.4th 1001, 1017 [“Evidence Code section 351.1 does not speak to the use of
polygraph evidence in proceedings outside the context of criminal proceedings, and we
have found no statutory or judicially created bar to a party offering polygraph evidence in
civil proceedings.”]; cf. Arden v. State Bar (1987) 43 Cal.3d 713, 723-724 [polygraph
evidence could not be used in a disciplinary proceeding].) Second, while the polygraph
result may not be submitted for its truth, it was clearly relevant and admissible as to
defendant Ruiz.
In order to prove deliberate indifference under a “failure to protect” theory,
plaintiffs had to demonstrate that Ruiz had actual knowledge of a substantial risk to
plaintiffs. To show such knowledge plaintiffs needed to establish that Ruiz either
directly investigated or was aware of the facts reported in investigations performed by
others. As confirmed by Ruiz: (1) “polygraphs were an investigative tool used by the
CYA at that time”; (2) Ruiz himself “recommended polygraphs on certain cases”; (3)
while not “entirely accurate,” he “saw some benefit in them . . . [¶] . . . with regards to
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using them as a tool.” As such, regardless of the reliability of a polygraph test, Ruiz used
them and found them helpful in various investigations. And as clarified by Marc Gantt
“the information that you obtain [from a polygraph] cannot be used as . . . the reason for
any type of discipline. It’s an investigative tool alone.” The testimony was therefore
admissible as to the nature of the investigations and the attempt to verify or confirm the
underlying facts. It is probative on the issue of notice.
D. Hearsay Objections to Statements from Investigative Reports
Defendants contend the trial court erred in allowing into evidence prejudicial and
irrelevant hearsay statements from investigative reports.
1. Additional Background
Defendants moved before trial to exclude various investigative reports on the
grounds that such evidence was inadmissible hearsay, lacked validation, violated the
secondary evidence rule, was inadmissible evidence of prior bad acts, and violated
Evidence Code section 1280. The trial court granted the motions, but ruled that such
evidence might be admissible for impeachment.
Over defense objections, the trial court later permitted Cantino to read excerpts
from his report. Cantino testified that during his investigation, he had interviewed
numerous people, with the majority of those people being wards.
During Ruiz’s testimony, the trial court instructed the jury, as follows: “Certain
evidence was admitted for a limited purpose. You may consider that evidence only for
the limited purpose and not for any other purpose. [¶] You have heard testimony about
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documents that contain allegations regarding defendant James Shelby that were made by
wards other than the plaintiffs in this case. Testimony about documents which contain
allegations made by witnesses who were not before the Court is hearsay. [¶] These
hearsay statements are admitted into evidence for a limited purpose. You may only
consider this testimony to determine whether defendants Harper and/or Ruiz had notice
that defendant James Shelby was engaging in improper acts or [o]missions and for no
other purpose. [¶] You may not consider this evidence for the purpose of determining
whether defendant James Shelby did such acts with the plaintiffs before . . . this court.”
In giving final instructions, the trial court stated: “We read this before, weeks ago,
but I’m reading it again.” The court then repeated the instruction, as set forth ante. The
trial court further instructed the jury: “During the trial, I explained that certain evidence
could be considered as to only one party. You may only consider that evidence as to
any—you may not consider that evidence as to any other party. [¶] During the trial, I
explained that certain evidence could be considered as to one or more parties, but not to
every party. You may not consider that evidence as to any other party.”
In argument to the jury, Shelby’s attorney stated: “[Y]ou got a special instruction.
I’m going to go through that with you on this hearsay issue because it’s important. And
this case is unusual in that a lot of hearsay evidence came into the case against Mr. Ruiz
and Mr. Harper that isn’t appropriate evidence against Mr. Shelby.” Counsel then argued
extensively about the hearsay evidence that could not be used against Shelby.
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2. Analysis
Shelby’s hearsay objection to the reading of ward statements in investigative
reports is off the mark because such statements were not admitted against him, and the
trial court explicitly instructed the jury on that point.
The information that was made known to Harper and/or Ruiz was admissible over
their hearsay objections because the statements were offered to show their notice or
knowledge of the assertions wards had made, not whether those assertions were true.
Because the allegations were not offered to prove their truth, they are not subject to the
prohibition against hearsay. (See, e.g., Magnolia Square Homeowners Assn. v. Safeco
Ins. Co. (1990) 221 Cal.App.3d 1049, 1057.)
E. Secondary Evidence Objection
Defendants contend the trial court abused its discretion in allowing Cantino to read
excerpts from his report because the testimony violated the secondary evidence rule.
Shelby argues that the trial court should have excluded Cantino’s testimony about the
contents of interviews because original tape recordings of the interviews were available.
Evidence Code section 1520 states: “The content of a writing may be proved by
an otherwise admissible original.” Evidence Code section 1521, subdivision (a)(2),
provides that secondary evidence may not be used to prove the contents of a writing if
admission of the evidence would be unfair. A “writing” includes every means of
recording tangible things, including tape or video recordings. (Evid. Code, § 250; People
v. Panah (2005) 35 Cal.4th 395, 475.) In Panah, the court explained: “The purpose of
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the best evidence rule is ‘to minimize the possibilities of misinterpretation of writings by
requiring the production of the original writings themselves, if available.’ [Citation.]
Therefore, ‘[t]he best evidence rule applies only when the contents of a writing are at
issue.’ [Citation.] Conversely, ‘[u]nless the content is in issue the best evidence rule
does not come into play.’ [Citation.] Where no dispute exists regarding the accuracy of
the evidence received in lieu of the original writing, any error in admitting such evidence
is harmless.” (Ibid.) Here, likewise, any error was harmless.
F. Objection Under Evidence Code Sections 1101 and 352
Shelby contends the trial court erred in admitting evidence of prior bad acts in
violation of Evidence Code sections 1101 and 352.
1. Additional background
Shelby, joined by Harper and Ruiz, moved before trial to exclude evidence
relating to other alleged prior bad acts under Evidence Code sections 1101 and 352. The
trial court held it would rule on the motion at an Evidence Code section 402 hearing
before plaintiffs introduced any such evidence. However, the trial court later permitted
plaintiffs to introduce such evidence over defense objections and without holding an
Evidence Code section 402 hearing. Shelby now challenges the admission of extensive
evidence of prior bad acts on the ground such evidence did not qualify under the common
plan exception to Evidence Code section 1101, and it was unduly prejudicial under
Evidence Code section 352.
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The challenged evidence included (1) the reports of four wards (Canas, Navarette,
Ortiz, and Tovar) that Shelby had sex with them; (2) evidence that Shelby had searched a
Web site known as “meetaninmate.com” on his home computer; (3) Starmer’s
conclusions that Shelby had a “modus operandi” for coercing male Latino wards into
having sex with him, that Shelby engaged in a seduction pattern, and that Starmer
believed the accusers; (4) the report of Chaplain Castillo that several wards had told him
of other instances of Shelby’s sexual misconduct; and (5) Shelby’s own testimony that he
was bisexual, engaged in sex with men, and his preference with men was to receive anal
sex. Shelby also challenges, on the same grounds, the admission of evidence of a sexual
encounter with a former ward, Douglas Gerard, and Gerard’s testimony that Shelby had
sexually harassed him when he was a ward.
2. Allegations of Other Wards
We first note that much of the evidence about which Shelby complains was not in
fact admitted against him; the trial court instructed the jury that hearsay statements
containing allegations from other wards against Shelby was admitted only to show notice
as to Harper and Ruiz. We assume that the jury limited its consideration of such
evidence as it was instructed to do. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780,
803.)
With respect to the evidence that was admitted against Shelby, specifically, the
trial testimony of Gerard and the deposition testimony of Tovar read at trial, Evidence
Shelby also argues that the trial court committed misconduct in failing to give the
curative instruction at the time of the challenged testimony rather than at the end of trial.
However, Evidence Code section 913 does not specify when such an instruction should
be given, but only that it should be given on request. The timing of such an instruction
was a matter within the discretion of the trial court. (Code Civ. Proc., § 607a.) We find
an abuse of discretion only when the trial court has “exceed[ed] the bounds of reason, all
of the circumstances before it being considered.” (Denham v. Superior Court (1970) 2
Cal.3d 557, 566.) The trial court’s determination to instruct on the privilege at the end of
trial did not meet that stringent standard for finding an abuse of discretion.
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J. Exclusion of Testimony of Landeros and Zendejas
Shelby contends the trial court erred in excluding certain testimony of his
witnesses Elizabeth Landeros and Salvador Zendejas.
1. Additional Background
Landeros was a former YCC and supervisor at Stark. Counsel for Shelby
proposed calling her to testify that she had heard a ward, Francisco Dominguez, a former
plaintiff who had been dismissed for failing to appear at his deposition, discussing with
other wards, Canas and Navarette, what they should tell Cantino in their interviews.
Dominguez, Canas, and Navarette were all unavailable as witnesses. Counsel for Shelby
made an offer of proof that Landeros would testify that “upon the ward’s exit from the
interview room with Mr. Cantino, [she] heard them exclaim that they were going to, ‘Get
that faggot out of here.’ That they had lawyers and that they were smiling and high-
fiving one another.” The trial court ruled the evidence inadmissible.
Zendejas was a YCC at Stark from July 2002 to November 2006. Counsel for
Shelby asked him if he had a conversation with Dominguez about sexual allegations, and
the trial court sustained plaintiffs’ objection on the ground of irrelevance. A discussion
was held off the record and not reported. Later, Shelby’s counsel stated that he tried to
get Zendejas’s testimony admitted, testimony that included: “[H]e heard ward
Dominguez specifically [tell] him that he had been told what to say about Mr. Shelby.
Mr. Dominguez was a former plaintiff. That he received a note from other wards
regarding what to tell investigators and what to say about Mr. Shelby.”
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2. Analysis
Shelby first argues that the proffered evidence was not hearsay because the
statements “constituted ‘operative facts’ that had independent significance.” We
disagree.
The offer of proof relative to Landeros was that she overheard certain wards
indicate that they were going to“[g]et that faggot out of here.” If offered for the
nonhearsay purpose that the complainants are biased against Shelby because of Shelby’s
sexual orientation, the impeachment value is extremely minimal based on the underlying
facts of the case. In our view, however, the statement is clearly being offered for the
implied statement that the complainants are fabricating their version of what occurred.
“[E]vidence of an express statement of a declarant is nevertheless hearsay evidence if
such evidence is offered to prove—not the truth of the matter that is stated in such
statement expressly—but the truth of a matter that is stated in such statement by
implication.” (People v. Allen (1976) 65 Cal.App.3d 426, 433.) Here, the statement in
conjunction with the “high fiving” by the speakers, was being offered for the implied
statement that they were fabricating their version of events so that they could “get”
Shelby. This fact was eventually acknowledged by defense counsel wherein he argued:
“In this case, what she heard was an indication that the ward planned to fabricate a story
of having some sexual contact with Mr. Shelby. . . .” Further, we do not believe the court
abused its discretion in finding no applicable hearsay exception. Counsel focused on
Evidence Code section 1230, the declaration against penal interest. While defense
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counsel argued that the statement was an implied admission of fabrication, the statement
could also be construed in a manner which does not suggest fabrication. One could easily
interpret the statement and high fiving as being celebratory of the fact that the witnesses
were allowed to truthfully relay facts to investigators and that finally Shelby was going to
get fired. (See People v. Frierson (1991) 53 Cal.3d 730, 745 [in determining the
trustworthiness of the statement (against the interest of) “the court may take into account
not just the words but the circumstances under which they were uttered, [and] the
possible motivation of the declarant . . . .”].)
As to the proffered testimony of Zendejas, it also was being offered for the truth of
the matter stated therein, that being, Dominquez was told what to say. With that said,
however, it is impossible to determine whether the court abused its discretion in not
allowing the testimony in that after plaintiffs’ counsel objected, the matter was discussed
off the record. Thereafter, defense counsel moved on to a new line of questioning.
It must also be noted that considerable evidence was presented to the jury
concerning the possibility of fabrication of accusations and collusion among wards.
Defense expert Larry Meisner testified: “[T]here is evidence, as I recall, that wards were
overheard talking with each other about what they were supposed to say in the
investigation and how to nail Shelby.”
Ruiz testified that he had read the investigative report concerning the Delgado
grievance. The report stated that a staff member told the investigator that two
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anonymous wards said Delgado had made up his complaint in order to be moved to
another company.
In addition, Shelby’s counsel asked Cantino whether wards had told him that “this
whole thing was a fake, a set up?” Cantino responded: “I had a couple wards, I do
believe. I don’t remember the exact number. Yes, there were a couple wards I
interviewed that said, it was bunk or fake.”
Finally, Shelby’s counsel argued that wards had filed false accusations to get rid of
him. One ward, Ortiz, who had previously reported that Shelby had orally copulated him
in an office, testified at trial that he had made up the story because Shelby was strict, and
Ortiz did not want him to return to Stark.
In light of the extensive evidence on the issue, the proffered testimony of Landeros
and Zendejas would have been merely cumulative. The trial court did not abuse its
discretion in excluding their testimony. (Tip Top Foods, Inc. v. Lyng (1972) 28
Cal.App.3d 533, 554.)
K. Exclusion of Impeachment Evidence
Shelby contends the trial court erred in excluding the impeachment testimony of
Monica Martinez and Don Krueger.
1. Monica Martinez
(a) Additional Background
In his opening statement, counsel for Ruelas stated that Ruelas had tried to commit
suicide. Ruelas testified that in July 2005, after his release from Stark, he tried to kill
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himself by slitting his wrist, and he showed his scars to the jury. He testified his suicide
attempt was a result of depression he suffered because of the sexual abuse. At the
hospital for treatment of the cuts, he told hospital personnel that he had fallen off a chair
through a window. Ruelas testified that he had lied about how he had received the cuts
because he did not want to be sent for psychiatric treatment.
Ruelas also testified, without further elaboration, that he had “some sexual
problems or dysfunction” that he attributed to the abuse. Defendants did not cross-
examine him on that point. He conceded that he had gone on “a couple of dates” with
Martinez before he met his wife and had sexual relations with Martinez.
Counsel for Shelby called Ruelas’s wife, Jasmin Sharafadin, as a witness under
Evidence Code section 776. Sharafadin testified that in July 2005, possibly on the day of
Ruelas’s suicide attempt, she went to Martinez’s home to talk about Martinez’s
relationship with Ruelas. Sharafadin became angry when Martinez would not talk to her,
and she slashed a tire on Martinez’s car with a knife. The same day, Sharafadin had a
physical altercation with Martinez’s sister-in-law, and Ruelas had to separate the two
women. Sharafadin denied there was any connection between the events at Martinez’s
house and Ruelas’s hospitalization.
The court held an Evidence Code section 402 hearing at which Martinez testified
she had dated Ruelas between 2004 and 2005; that their relationship ended about two
months before Sharafadin showed up at her house and slashed her car tire; that Ruelas
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and she had sexual relations around 30 times; and that Ruelas did not have any sexual
performance problems when he was with her.
(b) Analysis
Shelby asserts on appeal that Martinez was called “to directly refute Ruelas’
testimony relating to his damages.” However, Shelby did not bring a motion for a new
trial on the issue of excessive damages, and he is therefore precluded from raising the
issue for the first time on appeal. (Sholar v. Barker (1962) 211 Cal.App.2d 31, 32-33.)
Shelby further asserts that Martinez’s testimony “would have suggested to the jury
that Ruelas lied under oath when he testified that he suffered from sexual dysfunction and
had attempted suicide as a result of the alleged sexual abuse.” However, Ruelas’s
testimony about sexual dysfunction was brief and nonspecific, and Martinez’s proffered
testimony related only to Ruelas’s relationship with her five or six years before the trial.
Such testimony would thus have been of marginal relevance to any continuing or later
developing problems Ruelas might have suffered. Moreover Martinez’s proffered
testimony about the events of July 2005 was largely cumulative to that of Sharafadin.
We conclude Shelby has not shown that the trial court abused its discretion in excluding
Martinez’s testimony.
2. Don Krueger
Shelby contends the trial court erred in excluding impeachment testimony of
Lieutenant Don Krueger concerning the details of Ruelas’s felony conviction.
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(a) Additional Background
The trial court granted plaintiffs’ motion in limine to exclude evidence regarding
the nature of their underlying commitment offenses. However, during opening statement,
counsel for Ruelas stated: “Mr. Ruelas at 17 years old was in a stolen car and arrested.
He didn’t steal the car, but in his neighborhood and his background and where you come
from, you don’t say who did. The people . . . got away and he didn’t say who they were.
He got three years for that. [¶] They had picked him up at a movie with his girlfriend,
and he was in the back of the car when they got stopped. And that’s—he’s in a stolen
car, and he’s not cooperating with the investigation, and he was sentenced. He was 17
years old, a juvenile. So he was in juvenile court sentenced to three years.”
Ruelas testified he “took the blame” for the “carjacking and receiving stolen
property.” He denied that he had stolen the vehicle and stated that he had been “standing
near a vehicle that had been stolen by a friend.” On cross-examination, Ruelas
acknowledged that he had been sentenced for felony carjacking.
Shelby’s counsel stated that he planned to call Krueger. Krueger had arrested
Ruelas for carjacking. He would testify about the night of Ruelas’s arrest, and about the
fact that Ruelas was an active participant in the carjacking. Following additional
discussion, the trial court ruled that it would exclude Krueger’s testimony.
(b) Analysis
Shelby argues that Krueger’s testimony should have been admitted under
Evidence Code section 780, subdivision (i), which allows the jury to consider evidence
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that “has any tendency in reason to prove or disprove the truthfulness” of any witness,
including “[t]he existence or nonexistence of any fact testified to by him.”
However, Krueger’s proffered testimony, that Ruelas actively participated in the
carjacking, would not have directly contradicted that of Ruelas, who himself testified that
he had taken the blame for the carjacking. We therefore conclude that the trial court did
not abuse its discretion in excluding Krueger’s testimony.
Even assuming error, such error was not prejudicial. Shelby argues that “Ruelas’
testimony and credibility were critical to the case, as he was the only one of the
[plaintiffs] to testify.” Not so. All four plaintiffs testified at trial and were extensively
cross-examined.
L. Opinion Evidence
Shelby contends the trial court committed reversible error in allowing expert
opinion testimony on the ultimate issue.
1. Additional Background
During his opening statement, counsel for Harper and Ruiz told the jury
investigators for the CYA IA and the Chino Police Department had investigated reports
of misconduct by Shelby. Counsel continued: “They found no corroborative evidence of
any misconduct by Shelby with respect to the plaintiffs. Not one document. Not one
piece of DNA. Not one witness whoever saw anything. [¶] It was presented to the DA
here in San Bernardino County December ‘04, was rejected for prosecution.”
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Out of the presence of the jury, counsel for plaintiffs argued that the door had been
opened for evidence that information had been submitted to the district attorney and
charges had been recommended. Shelby’s counsel argued that the codefendants, not
Shelby, had opened that door. Counsel for Harper and Ruiz conceded that the remarks
during opening statement had been an error that could be resolved with an instruction.
The court ruled that plaintiffs could ask Cantino about any direct evidence and “go into”
what had been recommended to the district attorney.
Thereafter, Cantino responded, “yes” to the question, “Did you recommend
criminal prosecution of Mr. Shelby to the district attorney’s office?” after the trial court
overruled Shelby’s counsel’s objection on the grounds of “ultimate fact” and “peace
officer’s conclusion.” Counsel for Harper and Ruiz did not interpose an objection.
Starmer testified that he had submitted his report to the district attorney’s office
and felt there was sufficient evidence for a criminal prosecution. No objections were
raised as to that testimony.
Whitworth testified that he had submitted the case for prosecutorial review to the
district attorney. He responded, “yes,” to the question, “And from your work, the totality
of your investigation, did you think it should be submitted to the district attorney for their
determination as to whether or not it should be criminally prosecuted?” The trial court
overruled defendants’ objections on the ground of improper opinion of an investigator,
among other objections.
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(2) Analysis
“Testimony in the form of an opinion that is otherwise admissible is not
objectionable because it embraces the ultimate issue to be decided by the trier of fact.”
(Evid. Code, § 805; see North American Capacity Ins. Co. v. Claremont Liability Ins. Co.
(2009) 177 Cal.App.4th 272, 294.) Thus, Shelby’s contention that the challenged
testimony was inadmissible on the ground it went to the ultimate issue is not well taken.
California courts have indicated that counsel’s remarks during opening statement,
because such remarks are not evidence, do not “open the door” to admission of evidence
on the same subject. (See, e.g., Rufo v. Simpson (2001) 86 Cal.App.4th 573, 600-604
[counsel’s reference in opening statement to defendant’s willingness to take a lie detector
test did not permit plaintiff to inquire into the subject, especially when plaintiff had not
objected to the statement]; accord, Winfred D. v. Michelin North America, Inc. (2008)
165 Cal.App.4th 1011, 1027-1028.) We will therefore assume for purposes of argument
that counsel’s remarks did not open the door to the admission of evidence on the subject.
However, in Winfred D., the court cited with approval a line of cases from other states
holding that a curative instruction or, if necessary, a mistrial, is the appropriate remedy
for improper remarks made in opening statements. (Winfred D. v. Michelin North
America, Inc., supra, at p. 1027.) Shelby has not provided any citation to the record
indicating that he requested such an instruction.
In any event, we discern no undue prejudice from the introduction of the
investigators’ conclusions because the jury repeatedly heard evidence that those
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conclusions were ultimately rejected by the prosecutors, who declined to pursue criminal
charges against Shelby on the grounds that there was no corroborating physical evidence
and Shelby’s accusers lacked credibility. For example, Starmer testified on cross-
examination by Shelby’s counsel that when he started his investigation, he first reviewed
a prosecution rejection letter from the Cantino and Whitworth investigation. He agreed
that one of the reasons for the rejection was the lack of physical evidence. Such evidence
effectively counterbalanced any prejudice from the evidence to which Shelby now
objects.
M. Evidence of Shelby’s HIV Status
Shelby contends the trial court erred by admitting evidence of his HIV status.
In 2006, Starmer informed plaintiffs that Shelby had tested positive for HIV and
recommended they be tested. All plaintiffs tested negative.
The trial court initially granted Shelby’s motion in limine to exclude evidence of
his positive HIV status on the ground it was irrelevant and was more prejudicial than
probative under Evidence Code section 352. However, the trial court later permitted
plaintiffs to recall Shelby to the witness stand for cross-examination about his HIV status
on the ground it was relevant to plaintiffs’ claims for punitive damages.
Shelby was asked the following questions:
(1) “Do you think that it would be reckless to force somebody through threats of
intimidation to engage in anal sex with a person who’s HIV positive?”
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(2) “Does it make it worse, in your opinion, to force somebody to have sex if
you’re HIV positive and you don’t tell them?”
(3) “[D]oesn’t [it] make it worse to force someone into anal sex if you’re HIV
positive without warning them?”
Shelby responded that it was wrong to threaten someone or force someone to have
sex.
The trial court stated that an instruction limiting the evidence to the issue of
punitive damages would be appropriate. However, Shelby has not provided any citation
to the record to establish that he requested such an instruction. We therefore conclude
that his contention of error was forfeited. (Boeken v. Philip Morris, Inc. (2005) 127
Cal.App.4th 1640, 1694, fn. 27.)
N. Prejudicial Effect of Errors as to Shelby
A judgment should be reversed only when an appellant shows that a miscarriage
of justice has occurred. (Cal. Const., art. VI, § 13.) A miscarriage of justice is shown
when, after examination of the entire cause, including the evidence, it is reasonably
probable that a result more favorable to the appellant would have been reached in the
absence of the error. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 800-802.)
Multiple errors may be found cumulatively prejudicial, even though independently they
would have been deemed harmless. (Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123,
141.)
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We have found error in the trial court’s admission of evidence in violation of
Evidence Code section 1045 and in the admission of related polygraph evidence. We
have also found error in the admission of certain evidence in violation of Evidence Code
section 1101, specifically, that an agent had searched a Web site on Shelby’s home
computer, “meetaninmate.com,” and that Shelby had an off-duty sexual relationship with
a former ward. Finally, we have assumed for purposes of argument that the trial court
erred in allowing evidence of Shelby’s pretrial invocation of his privilege against self-
incrimination and we have found error in allowing testimony by investigators that they
recommended that criminal charges be filed.
We nonetheless conclude that Shelby has failed to establish that the errors,
whether considered singly or cumulatively, led to a miscarriage of justice. “The court
must be convinced of the injurious nature of the error after an examination of the entire
record. In other words, it must, to some extent, weigh the evidence, for the probability of
injury from the error may be dependent on the state of the evidence.” (9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 418, pp. 476-477.) While Shelby argues that all the
errors were reversible, he has failed to make those arguments in the context of any
meaningful discussion of the vast amount of admissible evidence at his trial. We will
therefore affirm the judgment against him in favor of Ruelas, Espinoza, and Miranda.
O. Sufficiency of Evidence
Harper and Ruiz contend that the judgments against them should be reversed and
the trial court should be directed to enter a new judgment in their favor on the ground the
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evidence was insufficient to establish (1) that they had actual knowledge of a substantial
risk of the constitutional injuries plaintiffs suffered; (2) the subjective belief element of a
deliberate indifference claim against prison supervisory officials; (3) the conscious
disregard element of plaintiffs’ failure to protect claim; or (4) the elements of plaintiffs’
cruel and unusual policy claim.
1. Standard of Review
When a party in an appeal challenges findings of fact, this court is “bound by the
‘elementary, but often overlooked principle of law, that . . . the power of an appellate
court begins and ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.]
[The court] must therefore view the evidence in the light most favorable to the prevailing
party, giving it the benefit of every reasonable inference and resolving all conflicts in its
favor . . . .” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by
statute on another ground as stated in Eller Media Co. v. City of Los Angeles (2001) 87
Cal.App.4th 1217, 1219-1220, fn. 3.) The appellant must provide a fair summary of the
evidence, and failure to do so results in forfeiture of the claim of lack of substantial
evidence to support the verdict. (Myers v. Trendwest Resorts, Inc. (2009) 178
Cal.App.4th 735, 749.) The duty to adhere to procedural rules grows with the complexity
of the record. (Akins v. State of California (1998) 61 Cal.App.4th 1, 17, fn. 9.)
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2. Elements of a Section 1983 Claim Under Farmer
Section 1983 provides for a cause of action against “[e]very person who,” under
color of state law, “subjects, or causes to be subjected,” another person to a deprivation of
a federally protected right. To state a claim under section 1983, the plaintiff must plead
that a government official has personally violated his or her constitutional rights.
(Ashcroft v. Iqbal (2009) 556 U.S. 662, 676 (Iqbal).)
In Farmer, the court held that a prison official’s deliberate indifference to a
substantial risk of serious harm to an inmate violates the Eighth Amendment. The term
“deliberate indifference” requires a showing that the official was subjectively aware of
the risk: “[A] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” (Farmer, supra, 511 U.S. at p. 837.) The
court continued: “[A]n official’s failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.” (Id. at p. 838.)
Thus, for a prison official to be found deliberately indifferent under a failure to
protect theory, the plaintiff must prove that before his or her injury: (1) the official
personally actually knew of facts from which the inference could be drawn that there was
a substantial risk of such injury occurring; (2) the official in fact subjectively drew such
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inference; and (3) the official consciously or recklessly disregarded the risk. (Farmer,
supra, 511 U.S. at pp. 836-840, 846-847.) “In addition, prison officials who actually
knew of a substantial risk to inmate health or safety may be found free from liability if
they responded reasonably to the risk, even if the harm ultimately was not averted. A
prison official’s duty under the Eighth Amendment is to ensure ‘“reasonable safety,’”
[citations], a standard that incorporates due regard for prison officials’ ‘unenviable task
of keeping dangerous men in safe custody under humane conditions,’ [citations].
Whether one puts it in terms of duty or deliberate indifference, prison officials who act
reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.”
(Id. at pp. 844-845.)
The court uses an objective standard to evaluate the element of a substantial risk of
serious harm. (See Marsh v. Butler County (11th Cir. 2001) 268 F.3d 1014, 1028-1029,
1031 (en banc), abrogated on other grounds by Bell Atlantic Corp. v. Twombly (2007)
550 U.S. 544, as recognized by Gilmore v. Hodges (11th Cir. 2013) 738 F.3d 266, 278.)
The element of defendant’s deliberate indifference to that risk has two components, one
subjective and one objective. To satisfy the subjective component, a plaintiff must
establish that the defendant “actually (subjectively) kn[ew] that an inmate [faced] a
substantial risk of serious harm.” (Rodriguez v. Secretary for the Dept. of Corrections
(11th Cir. 2007) 508 F.3d 611, 617, fn. omitted, citing Farmer, supra, 511 U.S. at pp.
829, 837, 844.) To satisfy the objective component, a plaintiff must establish that the
defendant “disregard[ed] that known risk by failing to respond to it in an (objectively)
78
reasonable manner.” (Rodriguez v. Secretary for the Dept. of Corrections, supra, at p.
617.)
Because liability in a section 1983 case is personal, we must separately consider
the sufficiency of the evidence as to each defendant. (Iqbal, supra, 556 U.S. at p. 676.)
(a) Sufficiency of Evidence of Actual Knowledge
“Whether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference from
circumstantial evidence, [citation], and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious. [Citation.] For
example, if an Eighth Amendment plaintiff presents evidence showing that a substantial
risk of inmate attacks was ‘longstanding, pervasive, well-documented, or expressly noted
by prison officials in the past, and the circumstances suggest that the defendant-official
being sued had been exposed to information concerning the risk and thus “must have
known” about it, then such evidence could be sufficient to permit a trier of fact to find
that the defendant-official had actual knowledge of the risk.’” (Farmer, supra, 511 U.S.
at pp. 842-843.)
Even if the risk is obvious, “a prison official may show that the obvious escaped
him, [citation], [but] he would not escape liability if the evidence showed that he merely
refused to verify underlying facts that he strongly suspected to be true, or declined to
confirm inferences of risk that he strongly suspected to exist . . . . When instructing
juries in deliberate indifference cases with such issues of proof, courts should be careful
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to ensure that the requirement of subjective culpability is not lost. It is not enough
merely to find that a reasonable person would have known, or that the defendant should
have known, and juries should be instructed accordingly.” (Farmer, supra, 511 U.S. at
p. 843, fn. 8.)
“Because, however, prison officials who lacked knowledge of a risk cannot be
said to have inflicted punishment, it remains open to the officials to prove that they were
unaware even of an obvious risk to inmate health or safety. That a trier of fact may infer
knowledge from the obvious, in other words, does not mean that it must do so. Prison
officials charged with deliberate indifference might show, for example, that they did not
know of the underlying facts indicating a sufficiently substantial danger and that they
were therefore unaware of a danger, or that they knew the underlying facts but believed
(albeit unsoundly) that the risk to which the facts gave rise was insubstantial or
nonexistent.” (Farmer, supra, 511 U.S. at p. 844.)
Harper became director in May 2000. He received the OIG October 3, 2000,
report discussing the prior allegations against Shelby. Included within the 9 page report
was: (1) Beck’s allegation that he witnessed Shelby orally copulating Rivera; (2)
Shelby’s proposition to Tovar, that Tovar allow Shelby to orally copulate him in
exchange for not reporting Tovar’s possession of marijuana; (3) the alleged attack on
Guerrero-Valles for referencing to Shelby that Guerrero-Valles had heard that Shelby
was performing sexual favors for wards; and (4) Perez’s complaint that while wearing
only a towel around his waist, Shelby placed his hand on Perez’s hip and began to move
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his hand lower. Harper did not recall if he received or looked at the underlying
attachments. The OIG criticized the handling of all four allegations. Harper knew the
latter two allegations had been reinvestigated and found to be unsubstantiated. He did
not recall if he had read the report of the reinvestigation of Perez’s complaint.
Harper was aware of Walker’s grievance wherein Shelby handcuffed Walker,
grabbed Walker’s buttock and indicated that he could handle Walker himself. Walker
interpreted this comment as being a sexual comment. Harper knew that the IA agent who
had investigated the complaint had deemed it to be unmeritorious. Harper did not recall
if he had seen the Tanori grievance, and he did not know if the OIG had ever
recommended further investigation, but he thought they had. Harper was unaware of the
Delgado and Johnson grievances. Harper did not recall if he had ever read the entire
1999 Westlund report.
As to Ruiz, the evidence showed that he was aware that Westlund had
recommended sustaining the 1999 allegation of immoral sexual behavior based in part on
Tovar’s report of a sexual proposition and Beck’s observation of Shelby orally copulating
Rivera.7 Ruiz had recommended terminating Shelby on the basis of the 1999 allegations.
Ruiz knew of the subsequent allegations of sexual misconduct raised by Perez, Guerrero-
7 Tovar’s report of a sexual proposition was corroborated in part by Westlund’s discussion with a maintenance worker wherein the worker told Westlund that he got the impression that something sexual had occurred between Shelby and Tovar.
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Valles, and Walker.8 He was also aware of Delgado’s allegation that when Delgado was
taking a shower Shelby was looking at him and told Delgado that he was “packing.”
Delgado’s allegation contained a further reference that Shelby told Delgado that he
wouldn’t have to worry about anything financial if he let Shelby “give [him] oral.” Ruiz
further knew of Tanori’s grievance that Shelby had sexually harassed him. He also knew
of Johnson’s grievance which accused Shelby of offering job opportunities and other
perks to wards if they engaged in sexual activities. Johnson also reported that one ward
would expose his penis to Shelby and masturbate while Shelby watched.
Harper and Ruiz contend that before February 2004, the only information
available to them consisted of unsustained allegations against Shelby, and that a pattern
of unsubstantiated complaints is insufficient to establish their actual knowledge of a
substantial risk that Shelby would coerce wards into sexual acts. Harper and Ruiz rely on
Brooks v. Scheib (11th Cir. 1987) 813 F.2d 1191, in which the court reversed judgment
against the City of Atlanta in an action based on a police officer’s alleged assault. Even
though the officer had been accused of similar misconduct seven times before the
incident with the plaintiff, the court explained: “Quite simply, there is no evidence that
city officials were aware of past police misconduct. [Citations.] Brooks never
demonstrated that past complaints of police misconduct had any merit. Indeed, the
number of complaints bears no relation to their validity. In Scheib’s case, for example,
8In conjunction with the Perez complaint, three other wards stated they heard conversations of a sexual nature between Shelby and Perez.
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there is a logical explanation as to why a large number of complaints have been lodged
against him: Officer Scheib patrolled a high crime area. A significant percentage of
those Scheib arrested were continually in trouble with the law. These experienced
‘customers’ frequently use citizens’ complaints as a means of harassing officers who
arrest them. The City presented testimony that each complaint was fully investigated and
found to be lacking in merit. In sum, there is no evidence that would allow a jury to find
that the City knew or should have known that the natural consequence of its policy and
practices would be the deprivation of constitutional rights.” (Id. at p. 1193.)
Harper and Ruiz also cite: (1) Hernandez v. Woodford (E.D.Cal., Mar. 12, 2009,
Amendment rights as alleged, you should give deference to the judgment of prison
officials in the adoption and execution of policies and practices that in their judgment are
needed to preserve discipline and to maintain internal security in the prison.” Defendants
claim the court erred in failing to give this jury instruction. We disagree.
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The proposed instruction was based on Norwood v. Vance (9th Cir. 2010)
591 F.3d 1062. In that case, a prisoner, over a period of two years, underwent four
separate lockdowns. The lockdowns were initiated as a result of inmate assaults on both
staff and fellow inmates. The plaintiff complained under section 1983 that as a result of
the lockdowns he was deprived of his use of the exercise yard. “In considering whether
defendants were deliberately indifferent to the need for outdoor exercise, the jury should
consider that defendants had a competing obligation under the Eighth Amendment to
ensure the safety of prisoners, including protecting prisoners from each other. In
considering these factors, you should give deference to prison officials in the adoption
and execution of policies and practices that in their judgment are needed to preserve
discipline and to maintain internal security in a prison.” (Id. at p. 1066.) “[P]rison
officials have a duty to keep inmates safe, and in particular to protect them from each
other. [Citations.] Officials must balance this imperative against other obligations that
our laws impose, such as providing outdoor exercise. When violence rises to unusually
high levels, prison officials can reasonably believe it is lawful to temporarily restrict
outdoor exercise to help bring the violence under control. We’ve explained that ‘prison
officials have a right and a duty to take the necessary steps to reestablish order in a prison
when such order is lost. This is for the benefit of the prisoners as much as for the benefit
of the prison officials.’” (Id. at p. 1069.)
To the extent the jury instruction referencing deference to prison officials’
judgment is associated with liability premised on “policies and practices,” we believe that
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a failure to give said instruction is harmless. As previously discussed, the jury clearly
based its liability finding on a “failure to protect” theory.
Further, the deference instruction applies to situations in which a prison official
must balance two competing interests in the decision-making process. Here, there is
nothing to balance. There is no competing interest. Nothing is to be gained by the
institution or the prisoners in allowing Shelby’s sexual misconduct to continue. There is
no balanced decision to defer to.
As stated most recently in Chess v. Dovey (9th Cir. 2015) 790 F.3d 961, “where
the parties do not put into issue a security-based policy, the deference instruction has no
‘foundation in the evidence’ and should not be given.” (Id. at p. 973.)
R. Exclusion of Harper and Ruiz’s Proffered Evidence
Harper and Ruiz contend the trial court repeatedly denied their requests to
introduce evidence. Specifically, they contend the trial court erred in refusing to admit
exculpatory evidence contained in the reports of witness interviews and in refusing to
enter those documents into evidence in their entirety. To cite just a few examples, during
cross-examination of Ruiz, counsel for Shelby asked him if he had seen a document that
had been attached to the report regarding the Delgado grievance. Ruiz testified that the
document supported the investigator’s conclusion not to sustain the grievance. Ruiz
replied that he “would have” reviewed that document; however, the trial court sustained
an objection from Ruelas’s counsel on the ground of hearsay, among other objections.
Similarly, the trial court sustained objections when the investigator himself testified. The
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trial court also denied requests to enter the documents into evidence in their entirety, as
they had been received by Harper and Ruiz.
The information that was made known to Ruiz and/or Harper was admissible over
plaintiffs’ hearsay objections because the information went only to their notice, not to the
truth of the matter asserted. Moreover, that information was highly relevant to the critical
issues of their actual knowledge and their subjective beliefs. Finally, the evidence was
admissible under Evidence Code section 356, which provides: “Where part of . . . [a]
writing is given in evidence by one party, the whole on the same subject may be inquired
into by an adverse party[.]” We conclude the trial court erred in excluding the proffered
evidence. While we find error, given the cumulative nature of the evidence, we believe it
harmless.9
Harper and Ruiz contend the October 3, 2000 OIG report was inadmissible
hearsay because it included summaries of other documents. However, the report was
admitted not to establish the truth of any statement contained in the report, but to
demonstrate the extent of Harper and Ruiz’s notice of the report’s contents. As such, the
report was not hearsay. For the same reasons, we reject Harper and Ruiz’s contention
that the trial court erred in admitting the report under Evidence Code section 702,
subdivision (a), because plaintiffs never established that the author of the report had
personal knowledge of the statements in the report.
9 The record contains ample evidence that investigators concluded that accusations were unsupported or not sustained.
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Harper contends the October 3, 2000, OIG report was irrelevant as to his
knowledge because, among other things, he knew the OIG was overly critical of the CYA
and not objectively reliable. His contentions go to the credibility of the report, not to its
relevance and, therefore, provide no basis for exclusion of evidence offered to show
notice.
Ruiz contends the October 3, 2000, OIG report was irrelevant as to him because he
never saw it and was unaware of its contents. “When evidence is admissible as to one
party or for one purpose and is inadmissible as to another party or for another purpose,
the court upon request shall restrict the evidence to its proper scope and instruct the jury
accordingly.” (Evid. Code, § 355.) The trial court has no sua sponte duty to give such an
instruction. (See, e.g., People v. Hajek and Vo (2014) 58 Cal.4th 1144.) Ruiz has not
shown that he requested such an instruction.
Harper and Ruiz challenge the admission of evidence that allegations were made
against Shelby in 1999 for allowing a ward to have access to confidential files, for
leaving his post, and for being dishonest in telling Rivera about a rumor and in using a
false name to get Rivera to take a telephone call. They also challenge evidence of the
Galustian cake incident. We do not agree that such evidence was irrelevant to show
notice or knowledge that Shelby presented a risk of sexual misconduct toward wards.
(Farmer, supra, 511 U.S. at p. 848.) Based on the evidence as a whole, this was part and
parcel of Shelby’s conduct, to reward and coerce wards into engaging in sexual conduct.
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Harper and Ruiz argue that the allegations of several wards were irrelevant
because, although they were related to sex, they “had nothing to do with [their]
knowledge of any risk of the sexual assaults.” Those allegations included Perez’s
allegation that Shelby made some sexual comments to him while moving his hand down
Perez’s hip; Walker’s allegation that Shelby said he “could handle” Walker and grabbed
his buttock while handcuffing him; and Tanori’s allegation that Shelby “sexually
harassed” him. We disagree.
The October 3, 2000, OIG report specifically identified the Perez incident as
requiring closer attention: “Based on its review of ward Perez’s allegations and the
history of Shelby’s past behavior, the Office of the Inspector General believes that action
should have been taken to fully investigate Perez’s grievance and disciplinary appeal
issues involving possible inappropriate sexual misconduct by Shelby.” Thus, in our
view, Perez’s allegation was highly relevant on the issue of notice of the likelihood of
Shelby’s sexual misconduct, and Walker’s similar allegation was relevant for the same
reason. Tanori’s allegation was never investigated, so the meaning of his underlying
complaint was never determined. Ruiz’s failure to order a complete investigation of that
allegation was one of the critical elements of plaintiffs’ case against him.
Harper and Ruiz further contend that the Perez, Delgado, Walker, and Guerrero-
Valles allegations were irrelevant and inadmissible because they were found to be
unsupported by evidence after investigation and, therefore, did not establish the required
objective strong likelihood or substantial risk that Shelby would sexually assault wards.
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Again, Harper and Ruiz’s objection goes merely to the probative value of such evidence,
not to its admissibility.
S. Prejudicial Effect of Errors As to Harper and Ruiz
To summarize, we have found error in: (1) the trial court’s refusal to give
proffered instructions on a claim based on policy or practice; (2) the admission of
irrelevant evidence against Harper and Ruiz, specifically, among other things, evidence
that was discovered after Shelby left Stark and, therefore, could not have established
knowledge or notice; (3) not allowing into evidence certain exculpatory comments found
in various investigative reports; and (4) the admission of evidence relative to
“meetaninmate.com” and Shelby engaging in sexual conduct at a motel with former
inmate Girard. As to Harper, we also find error in admitting polygraph results into
evidence. We find these errors however, harmless.
As indicated ante, a judgment should be reversed only when an appellant shows
that a miscarriage of justice has occurred. (Cal. Const., art. VI, § 13.) A miscarriage of
justice is shown when, after examination of the entire cause, including the evidence, it is
reasonably probable that a result more favorable to the appellant would have been
reached in the absence of the error. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp.
800-802.) Multiple errors may be found cumulatively prejudicial, even though
independently they would have been deemed harmless. (Johnson v. Tosco Corp. (1991)
1 Cal.App.4th 123, 141.) As previously discussed, the error concerning the failure to
instruct on policy and practice was harmless because the case did not go to the jury on
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that theory. It is clear that the verdicts against Harper and Ruiz were based on a failure to
protect.
Also harmless was the admission of evidence of Shelby’s conduct involving wards
Canas, Salcido, Navarette, and Ortiz, conduct of which it was not shown that Harper or
Ruiz was on notice of. While the evidence should not have been admitted for purposes of
notice, one cannot say that it is reasonably probable that a result more favorable to Harper
and Ruiz would have been rendered in the absence of the error. Properly before the jury
on the issue of notice was Shelby’s conduct involving: Edward Rivera, Ricardo Tovar,
Jason Perez, Daniel Guerrero-Valles, Armando Tanori, Tomas Delgado, Tyrone Walker,
and Paul Johnson.10 It simply cannot be said that a different verdict would have been
rendered in the absence of the inadmissible evidence. Further, as to the argued error in
not allowing certain portions of the investigative reports into evidence, it was harmless
because of the cumulative nature of the evidence. The jury had before it evidence that
investigators had found some of the accusations to be unsubstantiated. Lastly, as to the
evidence of “meetaninmate.com,” and Shelby meeting Girard in a motel, no reasonable
juror would think that Harper or Ruiz should have known of said conduct.
The judgments in favor of Ruelas, Miranda, and Espinoza are affirmed. As to
Mendoza, the judgment is reversed.
10There was no evidence that Harper was aware of the Tanori, Delgado, and Johnson incidents.
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T. Attorney Fees
The trial court’s award of attorney fees was joint and several; the trial court did
not identify fees attributable to specific claims and defenses.
We agree with defendants that attorney fees under title 42 United States Code
section 1988 should be awarded to the respective party plaintiffs, as opposed to their
attorneys. (Astrue v. Ratliff (2010) ___ U.S. ___ [130 S.Ct. 2521, 2529]; Venegas v.
Mitchell (1990) 495 U.S. 82, 87-88; Evans v. Jeff D. (1986) 475 U.S. 717, 730-731.)
Further, the judgments recovered by each individual plaintiff are severable from each of
the other plaintiffs; as such, each plaintiff is responsible for his own attorney fees, and the
judgment should so reflect. (Emery v. Pacific Employers Ins. Co. (1937) 8 Cal.2d 663,
666 [“Each plaintiff recovers upon his separate cause of action. No plaintiff has any
interest in the sum awarded to another plaintiff.”]; Code Civ. Proc., § 378 subd. (b)
[“Judgment may be given for one or more of the plaintiffs according to their respective
right to relief.”].)
Defendants contend that plaintiffs’ counsels’ fees are excessive. We disagree.11
An applicant for attorney fees under title 42 United States Code section 1988
“bears the burden of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.” (Hensley v. Eckerhart (1983) 461 U.S.
11 Discussion of Mr. Dordick’s fee enhancement will be discussed, post.
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424, 437.) The fee award should be one that is “sufficient to induce a capable attorney to
undertake the representation of a meritorious civil rights case” and “‘adequate to attract
competent counsel, but that does not produce windfalls to attorneys.’” (Perdue v. Kenny
A. (2010) 559 U.S. 542, 552 (Perdue).)
“‘We review the trial court’s award of attorney fees under [title 42 United States
Code] section 1988 for an abuse of discretion.’ [Citation.] ‘“‘[T]he appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of reason.’”
[Citations.]’ [Citation.] . . . We defer to the trial court’s discretion ‘because of its
“superior understanding of the litigation and the desirability of avoiding frequent
appellate review of what essentially are factual maters.” [Citation.]’ [Citation.] The
California Supreme Court has explained, ‘“The ‘experienced trial judge is the best judge
of the value of professional services rendered in his court, and while his judgment is of
course subject to review, it will not be disturbed unless the appellate court is convinced
that it is clearly wrong[’]”—meaning that it abused its discretion. . . .’” (Harman v. City
and County of San Francisco (2007) 158 Cal.App.4th 407, 418.)
The clerk’s transcript contains approximately 1,100 pages of billing documents;
the billing identifies the task performed, the amount of time spent, and the attorney
performing the work. While defendants may wish to characterize these documents as a
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billing compilation or block billing, the time accounted for is as detailed as any client
could expect.12
This case was in active litigation before the trial court for over seven years. Trial
spanned approximately six months. From the record, it appears that all counsel were well
prepared and fought to the bitter end. While liability for each plaintiff was premised, for
the most part, on the same facts, each plaintiff was nonetheless entitled to individual
representation through all stages of discovery and at trial.
In viewing the billing for the main plaintiffs’ attorneys, each attorney billed for
slightly over 400 hours of trial time, with trial preparation ranging from 590 to 1,236
hours. It cannot be said that the time spent did not fall within the range of what would be
expected on a case of this nature.
Defendants argue that the hourly fees charged are not in line with what attorneys
in the “relevant community” (i.e., San Bernardino County) would charge. We believe
defendants too narrowly constrict the “relevant community,” as it relates to handling
complex civil rights litigation. It must first be noted that none of the attorneys
participating in the present matter are from San Bernardino County. Two are from
Orange County and four are from Los Angeles County. This, in and of itself, supports
12 In light of the record containing almost 1,100 pages of fairly specific billing, we find defendants’ arguments relative to plaintiffs’ failure to produce raw billing documents unmeritorious. Further, given the specificity of the billing documents, it was well within the trial court’s discretion to deny defendants’ motion to conduct discovery relative to plaintiffs’ counsels’ time records. (See Riverside Sheriffs’ Assn. v. County of Riverside (2007) 152 Cal.App.4th 414, 424-425 [Fourth Dist., Div. Two].)
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the notion that at present the “relevant community” is the greater Los Angeles area. (See
Gates v. Deukmejian (9th Cir. 1992) 987 F.2d 1392, 1405.) Further, we find it hard to
accept the argument that Mr. Goldstein’s hourly rate of $407 and Ms. Eisenberg’s hourly
rate of $500 are excessive, even if limited to attorneys in San Bernardino County. 13
Lastly, there is ample evidence in the record to support the trial court’s conclusion that
the hourly rate for all three lead attorneys was reasonable and within the norm of the
“relevant community.”14
As to the fee award for time spent by Richard Pearl, we cannot say the trial court
abused its discretion in allotting some attorney time to Mr. Pearl. Certainly, 98 percent of
his declaration appears to be that of an expert, as opposed to an attorney. Yet attached to
Mr. Pearl’s declaration are billing records which reflect work more akin to that of a
lawyer than as an expert. We therefore find no error. (See Davis v. City and County of
San Francisco (9th Cir. 1992) 976 F.2d 1536, 1544.)
Lastly, we address the issue of enhanced fees to Mr. Dordick.
As for Mr. Dordick, Ms. Eisenberg, and Mr. Goldstein, a review of the record
demonstrates they did an extremely good job. From a plaintiff’s perspective, this is an
Mr. Dordick’s hourly fee will be discussed, post, when we address the 13 enhancement.
14 We recognize that Ms. Eisenberg’s hourly rate for her involvement in the fees motion was $150 more per hour than for her work on the substantive portion of the case. Given that she was the main attorney as it relates to the compilation of all the billing documents, we cannot say that the trial court was “clearly wrong” in approving the fees.
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extremely tough case. While the defendants’ alleged conduct is egregious, the case was
nonetheless problematic from the beginning.
Given the issues of credibility, as well as difficulty in proving liability, we believe
few attorneys would have taken the case. It is a case with little to no chance of settlement
with years of attorney time expended, and compensation totally dependent on a roll of the
dice before a jury. While the outlay of advanced costs in and of itself is not extraordinary
when compared to larger contingency fee cases, it was a substantial out-of-pocket risk
given the prospects of success. Lastly, from the date of filing to the present time, the
matter has lasted 11 years with no remuneration to plaintiffs’ counsel.
We now turn to Perdue. “[T]here is strong presumption that the lodestar is
sufficient; factors subsumed in the lodestar calculation cannot be used as a ground for
increasing an award above the lodestar; and a party seeking fees has the burden of
identifying a factor that the lodestar does not adequately take into account and proving
with specificity that an enhanced fee is justified.” (Perdue, supra, 559 U.S. at p. 546.) In
addressing the sufficiency of the lodestar method in calculating attorney fees, the court
indicated that the ultimate goal is to award a reasonable fee, “one that is adequate to
attract competent counsel . . . .” (Id. at p. 552.) “[W]e have never sustained an
enhancement of a lodestar amount for performance, . . . we have repeatedly said that
enhancements may be awarded in ‘“rare”’ and ‘“exceptional”’ circumstances.
[Citations.] [¶] [T]he novelty and complexity of a case generally may not be used as a
ground for an enhancement because these factors ‘presumably [are] fully reflected in the
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number of billable hours recorded by counsel.’ [Citations.] We have also held that the
quality of an attorney’s performance generally should not be used to adjust the lodestar
‘[b]ecause considerations concerning the quality of a prevailing party’s counsel’s
representation normally are reflected in the reasonable hourly rate.’ [Citation.]” (Id. at
pp. 552-553.)
The court continued however by indicating that “superior attorney performance”
would justify an enhancement if it could be determined that the lodestar amount did not
“adequately measure the attorney’s true market value, as demonstrated in part during the
litigation.” (Perdue, supra, 559 U.S. at pp. 554-555, fn. omitted.) Further, in
determining the propriety of an enhancement, the trial court should look to whether there
was an “extraordinary outlay of expenses” and whether the litigation was “exceptionally
protracted.” (Id. at p. 555.)
Finally, the “fee applicant seeking an enhancement must produce ‘specific
evidence’ that supports the award” (Perdue, supra, 559 U.S. at p. 553), and the “judge
[must] provide a reasonably specific explanation for all aspects of a fee determination,
including any award of an enhancement” (id. at p. 558).
We begin by noting that Mr. Dordick’s fee was $850 per hour. It was a little over
two times Mr. Goldstein’s hourly fee and 1.7 times Ms. Eisenberg’s hourly fee. Based on
Perdue, we feel compelled to conclude that Mr. Dordick has, for the most part, been
remunerated for the quality of his representation. As he states in his declaration: “My
requested hourly rate, based upon 23 years of extensive trial experience, reputation, and
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year of admission (1987), is $850/hour . . . I think that my requested hourly rate of
$850/hr is more than fair given the quality of my work and my unique experience of
having obtained several substantial verdicts in the Inland Empire and in other
surrounding areas.”
We do not believe, however, that this ends the inquiry. In his declaration, Mr.
Dordick expressed his belief that defendants “unnecessarily create[d] work and obstacles
to the litigation.” He further declared: “The inordinate length of this trial also impacted
my existing cases. I never anticipated that it would take so long to get to trial and that the
trial, itself, would take another 1/2 a year. I had to delay my typical Trial workload,
which is at least 4 trials a year on average, and continue all other matters. That has
caused a significant hardship, because I have essentially been in back-to-back trials since
about a month after the completion of the trial in the case at bar. I have had 3 jury trials
already and just started my 4th trial in a wrongful death case, expected to take about a
month. I have 2 more trials that must start before the end of the year. But for the 6
month trial in the case at bar, I could have spread those other trials out so as not to
become a physical and emotional strain. [¶] . . . In addition, the impact of waiting
another 2 years during the appeal in this case to recover the over $218,000 . . . that I
advanced as costs and to wait to be paid the reasonable value of my services is also
financially debilitating. The loss of the use of those funds substantially impacts my law
practice and my ability to advance costs for other clients. Also, I had to reject cases
during the last 10 months, since I was unavailable due to the needs of this case. I only
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accept cases with values in excess of one-million dollars, so losing a few cases impacts
my practice substantially.”
Mr. Dordick’s involvement in the present matter appears to have been for four
years. Based on time sheets, approximately 10 months of this four-year period was
dedicated to this case. Given this time dedication, Mr. Dordick states that he had to
continue numerous trials. Missing from his declaration, however, is the specificity as to
how long those trials had to be postponed and the impact this had on his clients or his
business. Also, while Mr. Dordick declares that he had to reject cases during the last 10
months, there is no description of the cases, whether the cases were referred out, or
whether he would have taken the cases had he not been in trial. Lastly, while this matter
has dragged on, it is unclear from the record whether this is attributable to defendants,
plaintiffs, or simply a matter of the complexity of the litigation.
Here, the trial court awarded a .5 enhancement on the lodestar fee of Mr. Dordick.
Aside from the complexity of the case and the exceptional job done by Mr. Dordick
(which we believe under Perdue is, for the most part, included within the lodestar), the
trial court supported its decision to award a .5 enhancement on the basis that: “Mr.
Dordick is a sole practitioner. He has advanced over $300,000 in costs to proceed with
the case through trial. His ability to handle other cases during the six month’s trial was,
of course, limited. His ability to take in new cases during this period [of] time was, of
course, limited.”
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While this general conclusion may be true, under Perdue, we feel compelled to
reverse and remand for further hearing as it relates to the enhancement. As stated by the
majority in Perdue, the “fee applicant seeking an enhancement must produce ‘specific
evidence’ that supports the award” (Perdue, supra, 559 U.S. at p. 553), and the “judge
[must] provide a reasonably specific explanation for all aspects of a fee determination,
including any award of an enhancement” (id. at p. 558). On the present record, we
believe the specificity required by both the fee applicant and the trial court is somewhat
lacking.
On remand, after further hearing and evidence as to the enhancement, the quality
of the representation by Mr. Dordick and the complexity of the case should not be
considerations in the award of an enhancement. (These factors are taken into
consideration in the lodestar.) As to the length of Mr. Dordick’s involvement in the case,
the length of the trial, the disruption, if any, of counsel’s practice, and a reasonable return
on the costs expended and fees earned, the trial court should, as much as possible if it
feels that an enhancement is appropriate, employ a method of calculation that is
objectively reasonable and subject to review.15
15 When dealing with a delay for the reimbursement of costs, the amount of the enhancement “must be calculated using a method that is reasonable, objective, and capable of being reviewed on appeal . . . .” (Perdue, supra, 559 U.S. at p. 555.) As to any inordinate delay in the payment of fees, “[c]ompensation for this delay is generally made ‘either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present day value.’” (Id. at p. 556.)
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While an award of attorney fees is not “‘a form of economic relief to improve the
financial lot of attorneys,’” the underlying “aim is to enforce the covered civil rights
statutes.” (Perdue, supra, 559 U.S. at p. 552.) While the trial court, which is familiar
with the discovery process and trial of the present matter, is in the best position to judge,
the record on appeal reflects what one might say is a problematic plaintiff’s case. While
certainly there are extremely competent plaintiff’s attorneys in Eastern Los Angeles
County and San Bernardino County, it is questionable whether their interest would turn to
a case of this nature. Out-of-pocket costs of $300,000 for larger injury cases is by no
means out of the question. However, under what appears to be problematic facts, it is an
enormous risk; we believe the same can be said for the investment of time.
We are viewing a cold record; the trial judge familiar with the discovery and trial
of the case is in the best position to determine the entitlement to and, if appropriate, the
amount of an enhancement. The matter is therefore remanded for this purpose.
IV. DISPOSITION
The judgment in favor of Mendoza and against Shelby is reversed. The judgments
in favor of Ruelas, Espinoz, and Miranda and against Shelby, Harper and Ruiz, including
the lodestar attorney fee awards for all counsel, are affirmed, except that the portion of
the judgments awarding a fee enhancement for Mr. Dordick is reversed. The matter is
remanded for further proceedings, consistent with this opinion, for a determination of the
propriety of and, if appropriate, the amount of fee enhancement to be awarded for Mr.
Dordick. The matter is further remanded with directions to correct the judgments to
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reflect that attorney fees and costs are awarded to Ruelas, Espinoza, and Miranda, rather
than to their attorneys.
Each party shall bear their respective costs on appeal. (Cal. Rules of Court, rule
8.278.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment in favor of Ruelas, Espinoza, and Miranda against defendants Shelby, Ruiz, and Harper, finding that while errors occurred during trial, they were harmless. The court reversed the judgment in favor of Mendoza, holding that he failed to exhaust his administrative remedies.
Issues
Did the trial court err in failing to dismiss Mendoza’s action for failure to exhaust administrative remedies?
Did the trial court commit reversible error in its evidentiary rulings and jury instructions regarding the section 1983 claims against Harper and Ruiz?
Did the cumulative effect of trial errors result in a miscarriage of justice for the defendants?
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“We conclude that Mendoza failed to exhaust his administrative remedies and, therefore, we reverse the judgments in his favor.”
“We find however that the cumulative nature of the errors is harmless.”
“As such, we affirm the judgment in favor of Ruelas, Espinoza, and Miranda against defendants Shelby, Ruiz, and Harper.”