Opinion
2d Civil No. B221724 Super. Ct. No. 1302430
08-15-2011
ARTHUR OLGUIN, Plaintiff and Appellant, v. SANTA BARBARA COMMUNITY COLLEGE DISTRICT et al., Defendants and Appellants.
Trygstad, Schwab & Trygstad, Lawrence B. Trygstad, Richard J. Schwab, Shanon D. Trygstad for Plaintiff and Appellant. Hardin & Coffin, LLP, Rick Hardin, Naomi R. Dewey for Defendants and Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Barbara County)
A psychology professor at a community college distributes to his colleagues a memo that is highly critical of the psychology department chairperson. We conclude the memo falls within the zone of protected speech and is therefore not actionable.
Plaintiff Arthur Olguin, a psychology professor, appeals a judgment in favor of defendants Santa Barbara Community College District (District) and Raymond Launier, a District psychology professor. Launier filed a grievance against Olguin and sent a memo to District colleagues. Launier claimed that Olguin violated academic freedom when Olguin instructed the college bookstore not to order materials Launier authored and planned to use in his classes. Olguin stated the memo contained false statements including the "republication" of a student's complaint to the District about witnessing him commit a lewd act in his office. Olguin sued defendants, alleging multiple causes of action, including defamation, intentional infliction of emotional distress, and negligence by the District for hiring and not supervising Launier. Launier claimed his academic freedom memo fell within a conditional privilege. The jury found Launier did not act with malice.
We conclude, among other things, the trial court properly instructed the jury on conditional privileges that protect defendants from liability for defamation and infliction of emotional distress. (CACI Nos. 1605, 1723.) The court's error in not specifically defining "malice" or "actual malice" does not require reversal. The court was not required to define these terms in the special verdict form. Substantial evidence supports the finding that Launier did not act with malice. The court did not err in excluding a 1993 California Board of Psychology decision that revoked Launier's license as a psychologist. Neither did the court abuse its discretion in admitting defense evidence about a student's allegation that Olguin committed a lewd act in his office. The jury's verdict on Olguin's negligent hiring and supervision cause of action was not internally inconsistent. We affirm.
FACTS
Olguin was on the faculty and served as the chair of the District's psychology department from 1999 to 2007. Launier applied for a teaching position in that department. Olguin, who was on the hiring committee, recommended that Launier not receive the position. Nevertheless, the District hired Launier.
Olguin discovered that Launier's license to treat patients as a psychologist had been revoked. During a psychology department meeting in 2002, in the presence of Launier and his colleagues, Olguin informed the group that Launier's license had been revoked. Olguin testified he did this because it was "helpful to team building within [his] department."
In 2005, Launier filed a grievance claiming that Olguin, as department chair, had harassed him, discriminated against him, and was treating him unfairly.
In 2007, Launier requested the District's college bookstore to include supplemental materials that he had authored and had prepared as required materials for his classes.
Olguin responded by directing the bookstore to "delete these supplemental products from the textbook orders for these courses." He said it was improper for Launier to use these "self-authored products" in his classes.
On June 20, 2007, Launier filed a grievance stating that his "rights as a faculty member are adversely affected" by Olguin's directive to delete his materials.
On August 23, 2007, Launier prepared a 38-page memo which he distributed to his colleagues at the District. In the memo, he said Olguin's action contravened his rights as a faculty member under "Academic Freedom Policy 2520." He claimed Olguin had obstructed his ability "to appropriately and economically incorporate testing and assessment into [his] courses in ways that truly enrich the learning experience of [his] students." Launier challenged the reasons Olguin gave for deleting the materials. Launier wrote: "In his email, in a kind of twisted, back-stabbing psychology, Dr. Olguin is now unable or unwilling to recognize the relevance of the WISE/EQD project assignments and assessment rubrics to help students . . . . Tongue in cheek, perhaps the bite is there because Dr. Olguin . . . was born not with a silver spoon in his mouth but with a slivered and forked tongue for spewing deceitful bile and deceptive rationalizations." (Italics added.)
A substantial part of Launier's memo responded to Olguin's claims that Launier's materials are not relevant and to Olguin's ethical concerns about Launier using "self-authored" texts. Launier said, "Olguin seems to imply that the simple fact of receiving financial remuneration . . . is somehow unethical. Where did Olguin ever get this idea?" Launier pointed to examples where others had used materials they prepared for their classes. He said he had made copies of the materials "freely available" at the District library. He claimed that because there was no basis for Olguin's conclusions, his actions must have been motivated by "resentment" and "jealously."
At one time Launier had been department chair. Launier noted that Olguin was a "hyper hypocrite when it comes to his own history." He said, "Olguin had been administratively removed from his role as Department Chair for alleged lewd behavior witnessed by a student in his office . . . ." (Italics added.)
Olguin's case ultimately went to trial on his causes of action against the District and Launier for defamation and intentional and negligent infliction of emotion distress, and against the District for negligently hiring and failing to supervise Launier.
At trial, Launier testified that he wrote the memo to communicate with his District colleagues because they shared his "legitimate concerns" about "academic freedom" and "the rights of faculty to develop and use materials" in their classes. When asked, "[D]id you bear any malice or ill-will toward Dr. Olguin?" Launier responded, "No, I did not." Launier said that his license as a psychologist was revoked in 1993 after he did not contest charges that he had "sexual affairs with two clients." His teaching position at the District did not require that he be a licensed psychologist.
Alyson Bostwick, a District mental health counselor, testified that in 1996 a female student told her that she went to Olguin's office, looked inside, and was "traumatized by witnessing . . . Olguin masturbating in his office." Bostwick promptly reported the incident to the District. She believed the student's allegations against Olguin were credible. She noted that the student exhibited "traumatized body language." The student also told her that during class Olguin "was making inappropriate sexual innuendoes as well as looking at her in inappropriate ways . . . ." Bostwick testified, "I was concerned that other students might have similar experiences and I was trying to protect other students as well . . . ." She said that 10 to 15 students made complaints about Olguin's conduct. The students said he was "intimidating, condescending, threatening, making inappropriate eye contact, sexual innuendos and just general unprofessional conduct."
Jack Friedlander, the District's vice president for educational programs, said that in 1996 he and other faculty members were aware of the student's accusations about the lewd conduct incident. He said Olguin was disrespectful to the dean and had engaged in "combative" and "inappropriate" behavior directed at his students and his colleagues.
John Romo, the District's former president, testified that when he was at the District he had received a "consistent pattern" of complaints from Olguin's colleagues about Olguin's "abusive" language, "uncooperativeness," and "unprofessional behavior." Catherine Carroll, a professor in the District's department of communications, testified that Olguin was "very divisive," contentious, and "very condescending." Erika Endrijonas, the dean of the District's education programs from 2001 to 2009, said Olguin was unfriendly and "dismissive" to other people. She said, "My only opinion of him as a professional was that he was rude and unprofessional." Stanley Bursten, the District's psychology department chair, said Olguin acted "unethically," treated him with "distain," and he "had a difficult time establishing an amicable working relationship with Dr. Olguin."
Olguin testified, "I brought this suit because Dr. Launier wrote and distributed false and malicious material . . . . They were lies." He said he never engaged in any "lewd conduct" in his office. The female student had made a false allegation against him in 1996. He was only temporarily removed as the department chair because "they had lost confidence in my ability to lead the department." He was not "disrespectful" to his colleagues and his students. On cross-examination, Olguin said his reputation within his department "was harmed" by his removal as the department chair in 1996, and Launier had nothing to do with that demotion. As early as 1996, his colleagues were "criticizing [him] for [his] interpersonal relationships with them . . . ."
The trial court instructed the jury that if Launier's memo contained inaccurate information, Olguin still had to prove that Launier acted "with hatred or ill will" or "without reasonable grounds for believing the truth of the statement" to recover damages.
On a special verdict form, the jury found Launier was not "acting with actual malice when he wrote and distributed" the memo to his colleagues. It found the District "negligent in its hiring and/or supervision" of Launier, but the negligence was not "a substantial factor in causing harm" to Olguin.
DISCUSSION
Jury Instructions on Conditional Privilege and CACI No. 1723
Olguin contends "the court improperly instructed the jury on the absolute privilege of Civil Code § 47(b)." (Emphasis omitted.) He claims this "litigation privilege" was not applicable here because Launier's communication was not made in a judicial or quasi-judicial proceeding.
All statutory references are to the Civil Code unless otherwise stated.
The District and Launier respond that Olguin's argument on this issue is misplaced because the trial court did not give an instruction on the litigation privilege. They argue that it properly instructed jurors on the qualified privilege under section 47, subdivision (c). We agree.
The trial court instructed the jury: "Under the circumstances of this case, Plaintiff Arthur Olguin cannot recover damages from Defendants Santa Barbara Community College District and Raymond Launier, even if the statement was false, unless Plaintiff also proves that Defendants acted with hatred or ill will toward Plaintiff. [¶] If Defendants acted without reasonable grounds for believing the truth of the statement, this is a factor you may consider in determining whether Defendants acted with hatred or ill will toward Plaintiff." (CACI No. 1723, italics added.)
By contrast, section 47, subdivision (b) provides a privilege for communications made in judicial proceedings. "The privilege is absolute and applies to all publications no matter how maliciously they were made." (Bisno v. Douglas Emmett Realty Fuind 1988 (2009) 174 Cal.App.4th 1534, 1550.) But the trial court did not give an instruction on this privilege, nor should it have. Instead, it instructed jurors on the qualified privilege under section 47, subdivision (c), as set forth in CACI No. 1723, which allows a person to communicate with other interested persons provided the communication is made "without malice." (§ 47, subd. (c); Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723 [if a communication falls within this provision "and if it was made without malice, it is privileged and cannot constitute a defamation under California law"]; Williams v. Taylor (1982) 129 Cal.App.3d 745, 751.)
Olguin claims the trial court's failure to define malice was prejudicial. "'Instructional error in a civil case is prejudicial "'[w]here it seems probable'" that the error prejudicially affected the verdict. [Citation.] It is not enough that there may have been a "mere possibility" of prejudice.'" (Alcala v. Vazmar Corp. (2008) 167 Cal.App.4th 747, 755.) Olguin suggests that this instruction gives no guidance to jurors on the issue of malice. We disagree. It does not define malice, but it does give guidance on the meaning of the term. The instruction provides that the privilege does not apply where the defendants acted "with hatred or ill will toward Plaintiff" or if they acted "without reasonable grounds for believing the truth of the statement." This is a correct definition of malice which defeats the privilege. As stated by our Supreme Court, "[A]s to the issue of malice, the trial court instructed the jury . . . that the qualified privilege 'is lost . . . if the person making the statement was: . . . [m]otivated by hatred or ill-will toward the plaintiff . . . ; or . . . [w]as without a good-faith belief in the truth of the statement.' This instruction correctly stated the law." (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1213.) Where the communications are qualifiedly privileged, it is "plaintiff's burden to show the statements were made with actual malice so as to defeat the privilege." (Williams v. Taylor, supra, 129 Cal.App.3d at p. 752.) The instruction was proper.
The Special Verdict Form
Olguin notes that the jury checked the box "no" to the question on the special verdict form that asked, "Was Dr. Raymond Launier acting with actual malice when he wrote and distributed [the memo about Olguin]?" He argues that the special verdict form does not define the terms "malice" or "actual malice," and he claims this was prejudicial because the jury could have misunderstood the meaning of these terms.
The trial court instructed the jury that it had to follow its instructions in reaching its verdict. We presume the jury did so. (People v. Hamilton (1988) 45 Cal.3d 351, 375.) The applicable jury instruction (CACI No. 1723) provided the jury with the correct legal standard for the state of mind that would defeat the privilege. Any reasonable juror would follow the court's direction and apply that instruction in answering the questions on the special verdict form. The term "malice" was not expressly mentioned in the court's instruction, but the substance of CACI No. 1723 is consistent with decisional law. "'A party is not entitled to have the jury instructed in any particular fashion or phraseology, and may not complain if the court correctly gives the substance of the applicable law.'" (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.)
Moreover, "[a] judgment may not be reversed on appeal, even for error involving 'misdirection of the jury,' unless 'after an examination of the entire cause, including the evidence,' it appears the error caused a 'miscarriage of justice.'" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) In closing arguments, the parties provided a definition of malice that linked that term on the special verdict form to CACI No. 1723. Olguin's counsel told jurors that Launier "certainly bore him ill will, and that is all that is required to show malice." Counsel said, "We have clearly proved malice. We just have to prove either hatred or ill will." The defense told the jury, "You've got to show ill will, hatred . . . ." The jury's verdict of no malice was a further rejection of Olguin's claim that Launier acted because of ill will or hatred.
The District and Launier also claim that Olguin's opening brief does not contain a complete statement of the evidence, and consequently Olguin has not shown how the absence of the alleged error would change the outcome. We agree. Nevertheless, we conclude there was no miscarriage of justice. Launier's testimony that he was motivated by concerns about academic freedom is supported by his memo, which is essentially a treatise on academic freedom. Olguin notes that Launier said he had a "forked tongue for spewing bile." But any colleague reading it would understand that this was said in jest because Launier prefaced these remarks with the phrase "[t]ongue in cheek." (Yorty v. Chandler (1970) 13 Cal.App.3d 467, 476.)
Olguin views all of Launier's negative statements about him to be actionable defamation. But Launier set forth the facts from which he drew conclusions. "'[C]ourts have found statements to be nonactionable opinion when the facts supporting the opinion are disclosed.'" (Dong v. Board of Trustees (1987) 191 Cal.App.3d 1572, 1584.) "Arguments for actionability disappear when the audience members know the facts underlying an assertion and can judge the truthfulness of the allegedly defamatory statement themselves." (Dunlap v. Wayne (1986) 716 P.2d 842, 849.) Here Launier sent the memo to colleagues who knew he had a dispute with Olguin. This was a highly educated audience. After reading the facts of the dispute, they would view the negative conclusions to be largely "rhetorical hyperbole." (Letter Carriers v. Austin (1974) 418 U.S. 264, 285; Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1049.)
Launier said Olguin's justifications for censoring his materials were intellectually dishonest and amounted to "deceptive rationalizations." Olguin notes that Launier also accused him of being "autocratic," ignoring "academic freedom," engaging in "would-be book burning," an "abuse of power," acting illegally, ignoring district policy, being "overly-controlling," "restrictive," "censuring," "punitive," "prejudicial," "ill-justified," "discriminatory," "unethical," having a "misinformation agenda," being angry, critical, engaging in "small minded attacks," etc.
These were obvious opinions (Grillo v. Smith (1983) 144 Cal.App.3d 868, 871); readers would understand these words to be "a form of exaggerated expression" (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 726) based on the author's "subjective judgment" (id. at p. 725). Launier used these words as rhetorical barbs in an academic argument against censorship and Olguin's management of the psychology department.
Launier's memo touched upon sensitive constitutional interests by urging his academic colleagues to support his opposition to a public college's censorship of his treatises and to protect the academic freedom of professors to plan their course materials. "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us. . . . That freedom is therefore a special concern of the First Amendment. . . ." (Keyishian v. Bd. of Regents (1967) 385 U.S. 589, 603.) Public colleges and universities are important forums for debate and the "robust exchange of ideas." (Ibid.)Consequently, they "are not enclaves immune from the sweep of the First Amendment." (Healy v. James (1972) 408 U.S. 169, 180.) "[T]he First Amendment tolerates neither laws nor other means of coercion, persuasion or intimidation 'that cast a pall of orthodoxy' over the free exchange of ideas in the classroom." (Dube v. State University of New York (1990) 900 F.2d 587, 598.) Professors do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (Tinker v. Des Moines Community School Dist. (1969) 393 U.S. 503, 506.)
Consequently, in the collision of opposing opinions in heated academic debates on important issues, "'there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.'" (Letter Carriers v. Austin, supra, 418 U.S. at p. 284.) We have "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks . . . ." (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270.)
But the chilling effect of litigation on the discussion of these issues is obvious. Consequently, protecting even harshly critical opinions of those at the center of an important controversy "'provides assurance that public debate will not suffer for lack of 'imaginative expression.'" (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at p. 1049; Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1440-1441 [protected opinions included such caustic bombast as referring to the targeted individuals as being "intellectually dishonest," "ignorant," a "buffoon," a "sub-standard human," a "bully," a "midget among giants," "whores," etc.].)
Moreover, the defense claimed the memo did not change how Olguin's colleagues viewed him because they already had "a fairly poor opinion" of him. That is supported by overwhelming evidence from the testimony of Bostwick, Bursten, Carroll, Endrijonas, Romo, and Friedlander. Those witnesses impeached Olguin's testimony that he treated his colleagues with respect. Olguin also admitted that his reputation within the department "was harmed" when he was removed as department chair in 1996, and that Launier was not responsible for that demotion. He conceded that, as early as 1996, his colleagues were criticizing him regarding his "interpersonal relationships with them." Olguin testified that he and other faculty removed Launier as department chair in 1999 partly because of his license revocation. But Olguin was impeached when he later admitted that he did not even discover the revocation until 2000. Bostwick's testimony supported Launier's position regarding the alleged lewd behavior incident. The special verdict shows that Olguin was unable to prove causation and damages, and that jurors rejected a substantial portion of his testimony.
Instructional Error for Giving CACI No. 1605
Olguin claims the trial court erred by instructing the jury with CACI No. 1605, because it "instructed the jurors that Launier's conduct was permissible under the litigation privilege." We disagree. CACI No. 1605 does not adopt a litigation privilege standard, and it does not immunize defendants for malicious conduct.
CACI No. 1605 involves an affirmative defense of privileged conduct relating to a cause of action for intentional infliction of emotional distress. The privilege or defense applies only in limited circumstances where the defendants meet all the requirements.
The trial court instructed the jury, "Defendants Santa Barbara Community College District and Raymond Launier claim that they are not responsible for Plaintiff Arthur Olguin's harm, if any, because Defendant's conduct was permissible. To succeed, Defendants must prove all of the following: 1. That Defendants were exercising their legal rights to process a grievance against Plaintiff; 2. That Defendants' conduct was lawful and consistent with community standards, and 3. That Defendants had a good-faith belief that they had a legal right to engage in the conduct. If you find all of the above, then Defendants' conduct was permissible." (CACI No. 1605, italics added.)
No reasonable juror would conclude that this instruction gives Launier an absolute privilege to pursue a grievance, or that he could engage in malicious conduct and still maintain the privilege and be immune from liability. The instruction requires that any defendant relying on this defense must have a state of mind of good faith. A defendant who engaged in malicious conduct could not have the requisite state of mind to assert the defense. The privilege here is conditional. "[T]he exercise of the privilege to assert one's legal rights must be done in a permissible way and with a good faith belief in the existence of the rights asserted." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 395.) The trial court did not err in giving this instruction.
Olguin suggests that as a matter of law Launier falls outside the qualified privileges in CACI Nos. 1605 and 1723 because Launier admitted he was angry. Olguin notes that Launier testified he "was angry at . . . what [he] perceived to be the manipulation involved to use [his license revocation] against [him] to deny courses that [he] had been teaching for . . . four of five years." But that does not prevent the jury from finding that the privileges survived. "'[I]f the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resentment or indignation at the supposed misconduct of the person defamed does not constitute an abuse of the privilege.'" (Williams v. Taylor, supra, 129 Cal.App.3d at pp. 752-753.) Launier's admission that he was angry at the tactics Olguin used does not mean a trier of fact must find malice was the motive for publishing the memo to his colleagues. (Ibid.)
Substantial Evidence
Olguin contends there is "no substantial evidence that [Launier] did not act with malice" in making the publication. (Emphasis omitted.) We disagree. The jury finding of lack of malice is supported by sufficient evidence in the record.
"'[The] reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.'" (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 908.) "We review the evidence in the light most favorable to the respondent, resolve all evidentiary conflicts in favor of the prevailing party and indulge all reasonable inferences possible to uphold the jury's verdict." (Ibid.)
Olguin cites evidence that he claims supports his position. But the issue is not whether some evidence supports Olguin, it is whether substantial evidence supports the judgment. The District and Launier correctly note that Olguin's brief is insufficient on the substantial evidence issue because he omits evidence favorable to the defendants. "The appellant's brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant . . . ." (Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1279.)
Launier testified that anger was not his motivation. He did not respond "personally" to what he considered to be harassment by Olguin. He said, "I just realized I needed to stand up for my rights." He said that even though he was personally attacked, there was "a broader issue involving academic freedom of the rights of faculty to develop and use materials in their course, and that it was this broader group of people with whom I shared the grievance document . . . ." Launier said he did this because the faculty "had legitimate concerns about these developments," because they also had published material for their courses. The issue of censorship was "a broad concern to those within our particular social sciences division." Launier also denied that he harbored any ill will towards Olguin. From this evidence, the jury could reasonably infer that Launier was not motivated by malice.
Exclusion of Evidence
Olguin contends the trial court erred by refusing to admit a decision by the California Board of Psychology which had revoked Launier's license. We disagree.
Olguin argues that he gave the decision to the District and it was relevant to Launier's motive to make his publication. But the District and Launier note that his license revocation was undisputed. Launier admitted it, and the jury heard testimony about the reasons for it.
To prevail, Olguin must show both trial court error and prejudice. (Mize v. Atchison, T. & S.F. Ry. Co. (1975) 46 Cal.App.3d 436, 450.) "The trial court is vested with very broad discretion in ruling on the admissibility of evidence." (Aguayo v. Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1038.) It acts within that discretion when it excludes cumulative evidence. (Ibid.)Here the court reasonably could find that the decision was not necessary to prove Olguin's causes of action and that it would distract jurors. (Evid. Code, § 352.) There was no abuse of discretion.
Improperly Admitting Evidence
Olguin contends the trial court committed reversible error by admitting evidence about a complaint a female student made about seeing Olguin masturbate in his office. We disagree.
Olguin sued Launier for defamation because Launier mentioned this incident in his memo. Launier said Olguin engaged in "alleged lewd behavior" in his office which was observed by a student. At trial, Bostwick testified that a female student said she saw Olguin "masturbating in his office." Olguin testified this incident never took place. Consequently, this was a contested factual issue.
The District and Launier claim Olguin may not object because he also used evidence about this incident in an attempt to show that Launier acted with malice. They are correct. In an attempt to impeach Launier's credibility, Olguin's counsel asked Launier about the student's accusation.
The trial court also could reasonably find that the probative value of this evidence substantially outweighed the potential for prejudice. (Evid. Code, § 352.) A major issue in Olguin's defamation cause of action was whether Launier had falsely published information about this incident. Olguin claimed the publication supported his claim for emotional distress damages.
The trial court could find the accusation involved embarrassing subject matter, but it was also a double-edged sword because it did not prejudice Olguin's litigation position in a defamation case. Because the allegation was embarrassing, it substantially increased Olguin's potential for a greater damage award if he prevailed. Moreover, because Olguin was suing Launier for mentioning the accusation, the defense had the right to present evidence about it to disprove Olguin's claims. The court instructed jurors that the student's accusations "are not to be considered for the truth"; they were admitted for a limited purpose under the state of mind exception to the hearsay rule. Launier's state of mind was an important issue. The defense had the right to introduce evidence about the incident to support Launier's justifications for including it in his memo.
Irreconcilable Jury Verdict
Olguin claims the jury verdict on his negligence cause of action against the District was internally inconsistent and irreconcilable. We disagree.
In a special verdict form, the jury found that the District was "negligent in its hiring and/or supervision" of Launier. It also found that its negligence was not "a substantial factor in causing harm" to Olguin.
Olguin argues that there is no rational way the jury could find negligence without also finding damages. He claims that "he testified to his injuries which included severe emotional distress . . . ." But the jury was not required to accept his testimony, and he had the burden to prove "duty, breach, causation and damages." (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480.) These are separate issues and the failure to prove causation and damages is fatal to a negligence cause of action even where negligence has been established. (Id. at pp. 480-481.)
Here the jury could reasonably find that, although the District was negligent, Olguin did not present sufficient or credible evidence on the other elements of his cause of action. The verdict was not internally inconsistent or irreconcilable.
We have reviewed Olguin's remaining contentions and conclude that he has not shown error. We need not reach issues raised in respondents' cross appeal.
The judgment is affirmed. Costs on appeal are awarded in favor of appellants Santa Barbara Community College District and Raymond Launier.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
COFFEE, J.
PERREN, J.
James Brown, Judge
Superior Court County of Santa Barbara
Trygstad, Schwab & Trygstad, Lawrence B. Trygstad, Richard J. Schwab, Shanon D. Trygstad for Plaintiff and Appellant.
Hardin & Coffin, LLP, Rick Hardin, Naomi R. Dewey for Defendants and Appellants.