Opinion
C071730
07-24-2017
JANE DOE 1, a Minor, etc., et al., Plaintiffs and Respondents, v. SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34200900035547CUPOGDS)
The guardians ad litem for two elementary school students (identified for their protection as Jane Doe and Susan Doe) brought this civil lawsuit against the Sacramento City Unified School District and one of the district's physical education teachers, Abdol Hossein Mehrdadi. Among other things, the lawsuit alleged Mehrdadi sexually molested the two students and the district negligently supervised Mehrdadi and failed to warn, train, or educate Jane, Susan and others about the risks of sexual abuse. The claims against Mehrdadi were dismissed prior to trial. Following trial, a jury found the district liable for negligently supervising Mehrdadi and negligently failing to warn, train or educate Jane and Susan about the risks of sexual abuse.
The district now contends (1) the trial court should have dismissed the claims against the district as a matter of law; (2) there is insufficient evidence to support the finding of negligent supervision; (3) the verdict forms are defective; (4) the jury findings that the district negligently supervised Mehrdadi, but did not fail to warn of his dangerous propensities, are inconsistent; (5) the trial court made evidentiary errors; and (6) the trial court issued flawed jury instructions. Amici curiae Northern California Regional Liability Excess Fund (NCR), Southern California Regional Liability Excess Fund (SCR) and Schools Association for Excess Risk (SAFER) submitted a brief on issues of government immunity and vicarious liability in the context of sexual abuse by public school teachers.
We conclude (1) the district fails to demonstrate that it was entitled to judgment as a matter of law; (2) substantial evidence supports the jury's finding that the district knew or should have known Mehrdadi posed a particular risk to Jane and Susan; (3) the district's claim that the verdict forms are defective with regard to apportionment and findings of knowledge and causation are without merit, and its claim of other defects in the verdict forms are forfeited; (4) the special verdict findings are not irreconcilable; (5) the trial court did not abuse its discretion in admitting the challenged evidence; and (6) no instructional error occurred.
We grant the district's motion to augment the record on appeal, and deny Jane and Susan's motion for appellate sanctions. --------
We will affirm the judgment.
BACKGROUND
Mehrdadi taught physical education at John Still Elementary School within the district. Jane and Susan were students in his classes. Police arrived at the school in February 2008 to investigate Jane's claim that Mehrdadi had sexually molested her. The principal contacted the district as soon as he learned about the police investigation, and he conducted his own investigation. The district promptly put Mehrdadi on leave and removed him from campus. Later, in May 2008, Susan reported that Mehrdadi had molested her in late 2007.
A law firm presented government claims on behalf of Jane and Susan in July 2008. Jane's government claim alleged her caregiver learned about Mehrdadi's molestation of Jane in February 2008. Susan's government claim alleged her caregiver learned about the molestation of Susan in May 2008. Jane later said she told her mother about the Mehrdadi molestation before the end of the 2006-2007 school year, but her mother (who had physical and mental disabilities and kidney failure) died that summer. The government claims identified Mehrdadi and the school principal as the individual wrongdoers. Jane and Susan alleged the principal (1) hired Mehrdadi with knowledge of Mehrdadi's propensity to molest children; (2) negligently supervised Mehrdadi, allowing him to separate students from their classmates; and (3) failed to protect Jane and Susan from a known child molester. The district rejected the government claims.
As is relevant to this appeal, a first amended complaint asserted causes of action against the district for negligent supervision of Mehrdadi and failure to warn, train or educate Jane, Susan and others about the risks of sexual abuse. Following trial, the jury found that Mehrdadi molested Jane and Susan and that the district negligently supervised Mehrdadi and negligently failed to warn, train or educate Jane and Susan about the risks of sexual abuse. The jury awarded damages to Jane and Susan.
Additional facts are included in our discussion of the contentions on appeal.
DISCUSSION
I
The district contends the trial court should have dismissed the claims against the district as a matter of law. Specifically, the district argues the claims against it are barred by the statute of limitations and the district cannot be held liable for failing to educate Jane and Susan about the risks of sexual abuse. We address each contention in turn.
A
The district argues the claims against it are barred by the statute of limitations. The district is a public entity and liability of a public entity is limited by the Government Claims Act, Government Code section 810 et seq. Before a complaint for money damages may be filed against a public entity, the injured party must present a claim and the claim must be acted upon or deemed rejected. (Gov. Code, § 945.4.) The claim must be filed no later than six months after accrual. (Gov. Code, §§ 910, 911.2.) But under the delayed discovery doctrine, accrual may be postponed until the plaintiff discovers or has reason to discover the cause of action. (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1233.) Timely claim presentation is more than a procedural requirement; it is a condition precedent to maintaining an action. (Id. at p. 1238.) A public entity may be estopped from asserting the time limitation if its agent acted to affirmatively prevent or deter the filing. (Id. at pp. 1239-1240; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 446 (John R.).)
Where the plaintiff is a minor, it is generally the knowledge of the minor's parents that determines the accrual of a cause of action against a public entity. (Whitfield v. Roth (1974) 10 Cal.3d 874, 885.) In a claim for sexual assault, however, the cause of action accrues when the assault occurs unless a minor lacks the capacity to understand that he or she has been harmed by sexual conduct; in such a situation, accrual is delayed until the child tells a parent. (Curtis T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1422-1423.) If more than six months but less than one year has passed from the date of accrual, a plaintiff may apply for leave to present a late claim. (Gov. Code, § 911.4.) A public entity must grant leave to present a late claim if the applicant was a minor when the claim should have been presented. (Gov. Code, § 911.6, subd. (b)(2).)
When they filed their claims in July 2008, Jane and Susan alleged their caregivers learned about the assaults in February and May 2008, respectively. The trial court concluded the claims were timely. We review the trial court's application of the claim presentation requirements for abuse of discretion. (Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 712.)
With regard to Jane, the jury found that when she was in fourth grade -- more than a year before she filed her government claim -- she told her mother about the Mehrdadi molestation. But the mother had physical and mental disabilities along with kidney failure and died that summer. The jury found that Mehrdadi threatened Jane, causing her to delay reporting the molestation to the police. As for Susan, the jury found that Mehrdadi did not threaten her, but it found Susan did not understand the molestation was wrong or harmful at the time it happened.
On this record, we cannot say the trial court abused its discretion in finding that the claims were timely.
B
The district also argues it cannot be held liable for failing to educate students regarding child sexual abuse.
1
The district begins by asserting that Jane and Susan did not satisfy the claim filing requirement with regard to their failure-to-educate claim. The purpose of the claim filing requirement of the Government Claims Act is "to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455.) "Consequently, a claim need not contain the detail and specificity required of a pleading, but need only 'fairly describe what [the] entity is alleged to have done.' " (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446 (Stockett).) "Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint." (Id. at p. 447; see White v. Superior Court (1990) 225 Cal.App.3d 1505, 1511 [causes of action for negligent hiring, training, and retention and failure to train, supervise, and discipline are fairly reflected in a written claim alleging false arrest, assault, and denial of medical assistance by a police officer].)
Jane and Susan's amended government claim alleged the district "failed to supervise or protect its students, which are under investigation at the present time." Later, Jane and Susan's ninth cause of action alleged the district breached its duty to take reasonable measures to protect Jane, Susan and others from the risk of Mehrdadi's sexual abuse by failing to warn, train, or educate Jane, Susan and others about how to avoid the risks of sexual molestation, how to spot signs of sexual abuse, and how to deal with a potential abuser.
We conclude the amended government claim adequately presented the claim in Jane and Susan's ninth cause of action and the trial court did not err in declining to dismiss that cause of action as a matter of law. In determining whether the factual basis for a cause of action is fairly reflected in the plaintiff's written claim, " 'we are mindful that "[s]o long as the policies of the claims statutes are effectuated, [the statutes] should be given a liberal construction to permit full adjudication on the merits." ' " (Stockett, supra, 34 Cal.4th at p. 449.)
2
The district further argues it does not owe an "actionable duty of care" in the discharge of academic functions; it has no duty to educate students about child sexual abuse before the seventh grade; and Jane and Susan failed to prove that any failure to warn, train, or educate them caused them harm. We need not address these claims, however, because the jury found, as an independent basis for liability, that the district negligently supervised Mehrdadi.
There is a special relationship between a school district and its employees and students arising from the compulsory nature of education and the comprehensive control over students exercised by school personnel. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869-870 (C.A.).) Because of that special relationship, school personnel have a duty to use reasonable measures to protect students from foreseeable injury arising from the acts of third parties, including sexual misconduct by a district employee. (Ibid.; see also Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 744-745, 747-751 (Dailey).) In cases involving sexual misconduct by a teacher, the school district that employed the teacher is not vicariously liable for the sexual misconduct (John R., supra, 48 Cal.3d at p. 441) but it can be vicariously liable for the negligent supervision of that teacher if district employees knew or should have known that the teacher posed a reasonably foreseeable risk of harm to students. (C.A., supra, 53 Cal.4th at p. 870; Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1855 (Virginia G.)
Here, the jury found that the district negligently supervised Mehrdadi, the negligent supervision of Mehrdadi was a substantial factor in causing harm to Jane and Susan, and Jane and Susan's damages were caused by the conduct of Mehrdadi and the district. Because negligent supervision is a sufficient basis for district liability, the crux of this case is whether there is sufficient evidence to support the jury conclusion that district employees knew or should have known Mehrdadi posed a reasonably foreseeable risk of harm to students. Accordingly, we turn to that question.
II
The district contends there is insufficient evidence to support the finding that it knew or had reason to know Mehrdadi posed a particular risk to Jane and Susan. We disagree.
The rules of appellate review in a case challenging the sufficiency of the evidence supporting a verdict are well-settled. We view all factual matters most favorably to the prevailing party and in support of the judgment. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 925.) We also resolve all conflicts in favor of the prevailing party. (Estate of Teel (1944) 25 Cal.2d 520, 526.) We do not disturb the trier of fact's resolution of issues of credibility. (Nestle, supra, 6 Cal.3d at p. 925.) Our task " 'begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.' " (Estate of Teel, supra, 25 Cal.2d at p. 526, italics omitted.)
As we have stated, liability for negligent supervision against the district requires proof that the district knew or should have known facts which would warn a reasonable person that Mehrdadi presented an undue risk of harm to third persons in light of the particular work to be performed. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214-1216; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; see also Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395-396 (Juarez).) Analogizing to cases construing Code of Civil Procedure section 340.1, the district argues an entity has reason to know (i.e., has constructive knowledge) its employee is unfit if it has actual knowledge of facts from which a reasonable person would infer the employee engaged in misconduct. Even if the cases cited by the district are applicable, the jury in this case could rationally find from the evidence before it that the district should have known Mehrdadi was unfit for his job.
A school safety monitor testified at trial. She was a district employee who supervised the playground before and after school and during the lunch period. Contrary to the district's appellate assertion, Jane and Susan identified the school safety monitor by name at trial as a district employee whose alleged negligence supported district vicarious liability. The safety monitor testified that her duties included ensuring student safety. She said one time when she saw Jane walking with Mehrdadi, Jane looked like she had been crying, and Mehrdadi had his arm around the child. When the safety monitor asked if anything was wrong, Mehrdadi responded that the child was fine. The safety monitor did not talk to Jane but testified that the proper exercise of her duties as a safety monitor required her to question Jane separately to make sure Jane was okay. The safety monitor said she saw Mehrdadi holding Jane's hand on two or three occasions. On one occasion Mehrdadi and Jane were with another girl and the girls had candy. On another occasion, when Jane was in fourth grade, the safety monitor escorted Jane to the nurse's office for a change of clothing after Jane wet her pants. The safety monitor testified she would have thought there was something wrong for a student in fourth grade to wet her pants. The safety monitor was a mandatory reporter of child abuse and wished she had been more curious, but she made no reports because she had no suspicion of sexual molestation. The safety monitor did not know of any district employee who had suspicions about Mehrdadi before the police arrived to investigate. But she had sufficient authority to inquire further about Jane's tears and if she had thought about it, she might have guessed that incontinence could be a sign that something was wrong. She testified that as early as 2006, she was aware of student concerns that Mehrdadi was "touchy-feely" and that a student was uncomfortable when he patted her on the back.
The district argues this evidence is insufficient to prove that any district employee knew or had reason to know Mehrdadi posed a risk to Jane and Susan. But given the applicable law and the factual record, we will not reverse the jury's finding that the district knew or should have known Mehrdadi was unfit and his unfitness created a particular risk to others. (See Dailey, supra, 2 Cal.3d at pp. 745-747 [school districts owe students a duty to exercise reasonable care to keep their students physically safe]; C.A., supra, 53 Cal.4th at pp. 865-866; J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123 [case involving a yard monitor].) The jury findings concerning negligent supervision support the judgment for Jane and Susan.
III
The district further contends the special verdict forms are defective in that (A) they did not require the jury to apportion fault to Jane's stepfather (who also allegedly molested Jane) and others; (B) they improperly included awards for special damages and did not require the jury to make findings concerning negligent hiring, investigation, or retention of Mehrdadi; and (C) they did not require the jury to make findings regarding notice and causation, which are necessary for negligent supervision liability.
Special verdicts " 'must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.' " (Taylor v. Nabors Drilling USA (2014) 222 Cal.App.4th 1228, 1240.) A special verdict is fatally defective if it does not allow the jury to resolve every controverted issue in the case. (Ibid.; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325.) We analyze the special verdict forms de novo. (Taylor, supra, 222 Cal.App.4th at p. 1242.)
A
The district argues the special verdict forms are defective because they did not require the jury to apportion fault to Jane's stepfather and others.
Citing CACI 3933, the district says it was entitled to ask the jury to apportion fault among all those who caused Jane and Susan's injuries. But Jane and Susan only sought damages from the district and Mehrdadi, and the district did not ask the trial court to give the CACI 3933 instruction.
In any event, the special verdict forms asked the jury to determine the damages caused by Mehrdadi and the district, not by the stepfather. Additionally, counsel for the district told the jury not to consider damages caused by Jane's stepfather, arguing the district should not pay for the stepfather's wrongs. District counsel did not mention any other alleged tortfeasors who caused harm to either plaintiff. And Jane and Susan's counsel argued any damages allocable to the stepfather were not applicable because this case is against the district.
Special verdict form question 9 shows the jury awarded Jane and Susan only those damages which were caused by Mehrdadi and the district. The district fails to demonstrate the special verdict form is defective for lack of apportionment.
B
The district adds that the special verdict forms are defective because (1) they included awards for special damages even though Jane and Susan waived claims for such damages before trial, and (2) they did not require the jury to make findings concerning negligent hiring, investigation, or retention of Mehrdadi.
Because the district did not support these appellate contentions with citations to authority, we deem the points forfeited. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1 (Okasaki); Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 (Keyes) ["It is the appellant's responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant's behalf."]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).)
C
The district further argues the special verdict forms are defective because they did not require the jury to make findings regarding notice and causation, which are necessary for negligent supervision liability.
The trial court instructed the jury on the necessary elements for negligent supervision against the district. Absent some contrary indication in the record, and the district does not point to any, we presume the jury followed the trial court's instructions. (J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 341.) It was not necessary to set out each element of the negligent supervision cause of action in the special verdict form because the trial court instructed the jury on the elements. (Id. at pp. 338-341; Babcock v. Omansky (1973) 31 Cal.App.3d 625, 630, disapproved on another point in Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 485-486, 496.)
Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, a case the district cites, is inapposite. In that case, the special verdict form did not allow the jury to make any findings concerning breach of fiduciary duty or fraud. (Id. at p. 958.) The special verdict form only related to the plaintiff's breach of contract cause of action. (Ibid.) The appellate court struck the punitive damages award because the jury was not asked to make, and did not make, any factual findings for a tort cause of action and punitive damages were not available for breach of contract. (Id. at pp. 960-962.) Here, however, the jury was asked to make, and did make, a finding on negligent supervision.
IV
The district claims the jury was inconsistent in finding that the district negligently supervised Mehrdadi but did not fail to warn of his dangerous propensities.
"A special verdict is inconsistent if there is no possibility of reconciling its findings with each other. [Citation.] If a verdict appears inconsistent, a party adversely affected should request clarification, and the court should send the jury out again to resolve the inconsistency. [Citations.] If no party requests clarification or an inconsistency remains after the jury returns, the trial court must interpret the verdict in light of the jury instructions and the evidence and attempt to resolve any inconsistency. [Citations.] [¶] On appeal, we review a special verdict de novo to determine whether its findings are inconsistent." (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357-358. fn. omitted.) The remedy for an inconsistent special verdict is a new trial. (Id. at p. 358.)
The finding of negligent supervision could be based on the determination that the district did not have actual knowledge of Mehrdadi's unfitness but nevertheless should have known he posed an unreasonable risk of harm to Jane and Susan. (C.A., supra, 53 Cal.4th at pp. 865, 879.) And, as instructed, the jury could have found that the district did not negligently fail to warn Jane and Susan of Mehrdadi's unfitness because it did not have actual knowledge of his unfitness. Thus, the special verdict findings are not inconsistent or irreconcilable.
V
The district further contends the trial court made certain evidentiary errors. Specifically, the district argues the trial court erred in allowing Ray Tolleson to testify as an expert witness and in admitting evidence regarding the training that district employees received about identifying child sexual abuse.
A
The district asserts Tolleson was not qualified to testify as an expert and his expert testimony lacked foundation.
The qualification of a witness to testify as an expert is a matter within the sound discretion of the trial court. (Hutter v. Hommel (1931) 213 Cal. 677, 681.) We will not disturb the exercise of that discretion unless the party challenging the trial court's ruling demonstrates a manifest abuse of discretion. (Ibid.) A person is qualified to testify as an expert if he or she has special knowledge, skill, experience, training, or education sufficient to qualify him or her as an expert on the subject to which his or her testimony relates. (Evid. Code, § 720, subd. (a); Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 701.) "The test is whether a witness discloses sufficient knowledge of the subject to entitle his opinion to go to the jury." (Hutter, supra, 213 Cal. at p. 681.)
Jane and Susan offered Ray Tolleson as an expert on school administration. Tolleson had decades of experience working as a teacher, physical education coach, and administrator for the San Juan Unified School District. He served as a middle school vice principal and principal, Director of Elementary Schools, Director of Certificated Personnel, Assistant Superintendent of Human Resources, Associate Superintendent of Educational Services, and Superintendent. Tolleson was involved in the discipline and termination of teachers, including cases in which allegations of improper contact between a teacher and a student were made. He had experience handling child sexual abuse matters as a vice principal, principal, and administrator. He received training on the signs of potential sexual abuse. As Superintendent, he became familiar with the standards of practice in other school districts. He reviewed and helped draft school board policies and was familiar with policies that schools throughout the state implemented to help reduce the risk of harm to students. He also reviewed depositions taken in this case, the district's policies on sexual harassment, child abuse and reporting, an employee handbook, and annual student/parent and employee notices about sexual harassment reporting and complaint procedures. Tolleson offered expert opinion on various topics, such as reasonable measures to protect students from harm, age appropriate education on sexual harassment prevention, responsibilities and general practices of mandatory reporters, and standards of practice in various factual scenarios.
The trial court did not abuse its discretion in admitting Tolleson's expert testimony. Although the district asserts Tolleson testified Mehrdadi was negligently supervised, the district does not provide us with a record citation for the assertion. We do not consider claims made without citation to the record. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [assertion that is unsupported by record reference is forfeited].)
B
The district also argues the trial court erred in admitting evidence regarding the training district employees received on identifying child sexual abuse. It argues such evidence was improper because Jane and Susan did not assert a cause of action for failure to train employees.
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) A trial court has broad discretion in determining the relevance of evidence. (People v. O'Shell (2009) 172 Cal.App.4th 1296, 1307; San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1414.) We will find abuse of discretion only upon a clear showing that the trial court's evidentiary ruling exceeded the bounds of reason. (People v. Dean (2009) 174 Cal.App.4th 186, 193; City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900-901.)
Jane and Susan's amended complaint alleged that although the district knew or reasonably should have known Mehrdadi acted inappropriately with students, the district failed to warn Jane and Susan of Mehrdadi's unfitness and failed to take reasonable measures to prevent further sexual abuse. At trial, Jane and Susan sought to prove, as part of its negligent supervision claim, that the district failed to properly train its employees in detecting and reporting potential child sexual abuse, and that if such training had been provided the safety monitor and the principal would have had reasonable suspicion Mehrdadi was abusing Jane and would have reported their suspicion to the district. Jane and Susan argued evidence about training of district employees was admissible in part because the amended complaint alleged the district failed to take reasonable measures to prevent further sexual abuse. The trial court ruled that while Jane and Susan could not present testimony that the district had a duty to train its employees, evidence of training or lack thereof "fairly falls within the negligent supervision and failure-to-warn claim."
School personnel have a duty to enforce the rules and regulations necessary for the protection of students under their supervision and must use reasonable measures to protect students from foreseeable injury. (C.A., supra, 53 Cal.4th at pp. 869-870.) A plaintiff can state a cause of action for negligent supervision of a teacher where school district employees knew or should have known the teacher posed a reasonably foreseeable risk of harm to students under his supervision. (Virginia G., supra, 15 Cal.App.4th at p. 1856.) Effective January 1, 2005, employers are strongly encouraged to provide their employees who are mandated reporters with training in the duties imposed by the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.). (Pen. Code, § 11165.7, subd. (c); Stats. 2004, ch. 842, § 5.5 [adding language in Pen. Code, § 11165.7, subd. (c)].) The safety monitor and the principal were mandated reporters. The training recommended by Penal Code section 11165.7 includes training in child abuse identification and reporting of child abuse. (Pen. Code, § 11165.7, subd. (c); Stats. 2004, ch. 842, § 5.5.) While training was not mandatory, as early as 1987 school districts that did not train their mandated reporters under the child abuse reporting laws were required to explain to the State Department of Education why the training was not provided. (Stats. 1987, ch. 1459, § 14 [former version of Pen. Code, § 11165.7, subd. (d)].)
Because of the duties the district owed to its students and the duty it had in supervising Mehrdadi, whether the district trained its mandated reporters has a tendency in reason to prove or disprove Jane and Susan's negligent supervision and negligent failure to warn causes of action. (See also Juarez, supra, 81 Cal.App.4th at pp. 384-385, 405-410 [examining costs and benefits of educating adult caretakers about sexual abuse in determining that the Boys Scouts of America owed a scout a duty to take reasonable measures to protect him from sexual assault by a scoutmaster].) The trial court did not abuse its discretion in admitting evidence regarding the training of district personnel in detecting and responding to suspected child abuse.
The district claims trial evidence showed such training would not have prevented the harm to Jane and Susan. But information that was not before the trial court at the time it ruled on the admissibility of the evidence is irrelevant to our inquiry. (See, e.g., In re Arturo D. (2002) 27 Cal.4th 60, 77, fn. 18 [evidence presented after challenged ruling is disregarded].) Moreover, the district does not explain how the trial evidence shows the trial court abused its discretion in admitting the challenged evidence. We need not consider the point for that reason. (Okasaki, supra, 203 Cal.App.4th at p. 1045, fn. 1; Keyes, supra, 189 Cal.App.4th at p. 656; Badie, supra, 67 Cal.App.4th at pp. 784-785.)
VI
In addition, the district contends the trial court issued flawed jury instructions. Specifically, the district argues the trial court erred in (A) instructing the jury with CACI Nos. 400 and 401 in conjunction with CACI No. 426; (B) not requiring the jury to find that a district employee was negligent before holding the district liable for negligent supervision; and (C) refusing to give the district's special instruction Nos. 3 and 10.
"The trial court's 'duty to instruct the jury is discharged if its instructions embrace all points of law necessary to a decision.' " (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) Where a party claims the instructions given are ambiguous, we determine whether there is a reasonable likelihood the jury misunderstood and misapplied the instruction. (Ibid.) The propriety of jury instructions is a question of law which we review de novo. (Ibid.) In assessing a claim of instructional error, we evaluate the instructions given as a whole. (Ibid.)
A
The district claims the trial court erred in giving CACI 400 and 401 in conjunction with CACI 426 because the jury could have disregarded the CACI 426 instruction in finding the district liable for negligent supervision.
Pursuant to CACI 400, the trial court instructed the jury that to establish district negligence, Jane and Susan were required to prove (1) the district was negligent; (2) Jane and Susan were harmed; and (3) the district's negligence was a substantial factor in causing Jane and Susan's harm. The trial court then instructed, pursuant to CACI 401, that "[n]egligence is the failure to use reasonable care to prevent harm to one self [sic] or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. You must decide how a reasonably careful person would have acted in Defendant Sacramento City Unified School District's situation."
With regard to negligent supervision, the trial court instructed in accordance with CACI 426 as follows: "Plaintiffs Jane Doe One and Susan Doe One claimed that they were harmed by Abdol Hossein Mehrdadi and that Defendant Sacramento City Unified School District is responsible for that harm because defendant negligently supervised Abdol Hossein Mehrdadi. To establish this claim, plaintiffs must prove all of the following: [¶] (1) That Abdol Hossein Mehrdadi was unfit to perform the work for which he was hired; [¶] (2) The defendant knew or should have known that Abdol Hossein Mehrdadi was unfit and that this unfitness created a particular risk to others; [¶] (3) That Abdol Hossein Mehrdadi's unfitness harmed plaintiffs; and [¶] (4) That defendant's negligence in supervising Abdol Hossein Mehrdadi was a substantial factor in causing plaintiffs' harm."
The trial court told the jury to consider all the instructions together. It said the jury should follow the instructions that apply and use the instructions together with the facts to reach its verdict.
Reading all the instructions together, we conclude the CACI 400, 401 and 426 instructions were not inconsistent. Jane and Susan alleged the district was liable for negligence, including negligent supervision of Mehrdadi. The CACI 400 and 401 instructions defined negligence generally and described the basic standard of care. Those instructions related to Jane and Susan's negligence claims. Jane and Susan were also entitled to an instruction on their claim of negligent supervision. (Soule, supra, 8 Cal.4th at p. 572 ["A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by [the party] which is supported by substantial evidence."].) The CACI 426 instruction stated the elements of negligent supervision. There is no indication the jury disregarded CACI 426 and the district fails to demonstrate that giving the challenged instructions created legally inconsistent verdicts.
B
Citing C.A., supra, 53 Cal.4th 861, the district asserts the CACI 426 instruction was defective because it failed to require the jury to find that a district employee was negligent in order to hold the district liable for negligent supervision of Mehrdadi.
It is true that the challenged instruction referenced the district, but the district could only act through its employees or agents. (See, generally, Marron v. Superior Court (2003) 108 Cal.App.4th 1049, 1067; Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 836.) In finding the district liable for negligent supervision, the jury must have concluded one or more individuals employed by the district engaged in negligent supervision.
C
The district further argues that the trial court erred in refusing to give the district's special instruction Nos. 3 and 10.
The district's proposed special instruction No. 10 stated, "Defendant cannot be held liable unless Jane Doe 1 and Susan Doe 1 prove that an administrator or . . . supervisor's affirmative act was negligent and caused plaintiff's harm." The trial court refused to give the proposed special instruction, ruling that CACI Nos. 401 and 426 adequately instructed the jury. The district maintains that in order to find liability against the district, the jury should have been required to find negligence by a district employee. But as we have already explained, CACI No. 426 instructed the jury that to find the district liable for negligent supervision, the jury had to find, among other things, that the district's negligence in "supervising" Mehrdadi was a substantial factor in causing plaintiffs' harm. And the jury must have concluded one or more individuals employed by the district engaged in negligent supervision because the district could only act through its employees or agents.
The district's proposed special instruction No. 3 states, "There can be no liability against Defendant SACRAMENTO CITY UNIFIED SCHOOL DISTRICT unless there is a finding that the school district knew or had reason to know that Abdol Hossein Mehrdadi was a person who presented a particular danger to the students. [¶] 'Reason to know' means that the person has knowledge of facts from which a reasonable man of ordinary intelligence would either infer the existence of the fact in question or would regard its existence as so highly probable that his conduct would be predicated upon the assumption that the fact did exist. [¶] 'Reason to know' is not established by merely proving the event occurred." The trial court declined to give proposed special instruction No. 3.
Later, during jury deliberations, the jury sent the trial court a note stating that it found special verdict question 3 and CACI No. 426 confusing. The jurors subsequently clarified they were confused by the second element in CACI No. 426, which requires the jury to find "That Defendant knew or should have known that Abdol Hossein Mehrdadi was unfit." The jury said they could not continue with deliberations until nine jurors agreed on the answer to special verdict question 3. The trial court instructed the jury to recess for the evening and, if the jurors were still confused in the morning, to provide a further note explaining the nature of the jurors' confusion.
The next morning the jury submitted a note explaining its confusion about the second element in CACI No. 426: "[T]he confusion exists in relation to time and when they 'should have known' Coach M was unfit." The jury asked, "Because 'should have known' implies a time in the future -- can you change/clarify this part?" After conferring with counsel, the trial court instructed the jury, " 'Should have known' refers to a time before at least one of the alleged acts by Mehrdadi occurred. This must be judged separately as to each plaintiff."
Pointing to the jury's questions about special verdict question No. 3 and CACI No. 426 during deliberations, the district asserts the trial court should have instructed the jury on the definition of "reason to know." But the jury's explanatory note and question clearly focused on timing, a subject that proposed special instruction No. 3 did not address. The jury said confusion existed "in relation to time" and "when" the district should have known Mehrdadi was unfit. The jury suggested "should have known" implied a "time in the future" and asked the trial court for clarification. The trial court properly conferred with counsel and provided clarification regarding timing. The district fails to demonstrate trial court error with regard to special instruction No. 3.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
ROBIE, J.