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Dissenter Objects to Failure of Court to Request Briefing on Key Issue—C.A.
Richman Bemoans Not Litigating Legality of Verdict Which Allocates All Responsibility For Molestation to School, Despite Parties’ Silence
By a MetNews Staff Writer
Div. Two of the First District Court of Appeal yesterday affirmed a $10 million judgment against a school district for the sexual abuse of a student by a teacher who had previously been accused of inappropriate behavior, drawing a dissent by Justice James A. Richman for failing to address an unbriefed issue—whether the verdict allocating 100% of the responsibility to the employer, and not the perpetrator, could be supported by the evidence.
Appealing the judgment was the Tamalpais Union High School District which hired Normandie Burgos as a physical education teacher and high school tennis coach in 1998.
Burgos was convicted in 2019 of 60 counts of child molestation and sentenced to 255 years in prison by Contra Costa Superior Court Judge Charles B. Burch.
In June 2021, former student Alex Harrison—referred to in court filings as “A.H.” but who agreed to go public about the abuse in a series of stories by the New York Times—filed suit against the district, arguing that the school system was liable due to its failure to properly supervise Burgos after an earlier complaint that the educator had inappropriately touched the genitals of another minor during a body fat testing procedure.
Harrison, who attended Talampais High School from 2000 to 2004, alleges that Burgos molested him while serving as the minor’s tennis coach.
A jury found the district negligent on May 10, 2022, assigning 100% responsibility to the district and none to Burgos—who was not a party to the case but was listed by name— on a special verdict form.
On appeal, the district challenged the jury instructions as to the liability of a school system for the conduct of its supervisory employees, arguing that the error must have been prejudicial because the jury reached a “legally impossible” verdict by assigning all responsibility to the school and none to the perpetrator.
Justice Marla J. Miller authored the opinion affirming the judgment, finding no instructional error. As to the verdict apportionment, she noted that “the District does not separately claim insufficiency of the evidence as to the jury’s apportionment finding” and so “we do not consider whether the jury’s apportionment of fault was supported by sufficient evidence.”
Presiding Justice Therese M. Stewart joined in the opinion.
Richman took no issue with the “well written” and “comprehensive” opinion by Miller, saying:
“[The opinion] analyzes under settled principles of appellate review the arguments put forth by the District, and concludes they have no merit. I agree. Indeed, I agree with all 22-and-a-half pages of the substance of her opinion, which is fine, as far as it goes.”
However, he wrote that “I would go further, and do something that to my knowledge this court has not done in my 18-and-a-half years’ experience here: raise on our own, and seek supplemental briefing on, an issue ‘not proposed or briefed by any party.’ ”
He continued:
“The issue I would have briefed is whether the verdict allocating 100 percent responsibility for A.H.’s harm to the District, zero percent to Burgos, can support the judgment.”
The jurist argued that such action is authorized under Government Code §68081, which provides:
“Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.”
District’s Approach
The justice noted:
“The District seems to have made a strategic decision to attack the verdict and seek a new trial on all issues by arguing instructional error, and that the allocation on the verdict reflects the prejudice from that error. With this approach, for reasons best known to it—reasons unfathomable to me—the District did not make any alternative argument, for example, insufficiency of the evidence, and seek a new trial on the allocation issue.”
Saying that “I would raise the issue myself as, recognizing I do not have the benefit of A.H.’s briefing on the issue, my review of the law leads me to conclude that the judgment is based on a verdict that cannot stand,” he wrote:
“The jury…allocated 100 percent of responsibility for the harm to the District, zero to Burgos. That cannot be: if Burgos’s sexual battery did not harm A.H., then the District could not have been negligent in hiring him or failing to supervise him.”
Richman pointed to case law finding similar verdicts against public employers relating to child molestation to be unsupported by the evidence as it was impossible to find that the entity is culpable if the actual perpetrator is not. Finding the cases persuasive, he remarked:
“[T]he harm was a sexual battery. And the sexual batterer was Burgos.”
Extraordinary Position
He acknowledged the uniqueness of his position and commented:
“I recognize full well the fundamental principles, for example, that the parties control the litigation, and we decide the issues the parties put before us. Or that our role is not to be active but, as United States Supreme Court Chief Justice John G. Roberts, Jr. said in his oft-quoted statement during his confirmation hearings, ‘Judges are like umpires. Umpires don’t make the rules, they apply them….’….I recognize too how extraordinary my position is,…that this is something we have never done before.”
He continued: “That said, if what I believe should occur would occur, the District’s liability would remain, as would A.H.’s $10 million verdict. The only issue that would be determined on remand is what percentage of that $10 million the District would be responsible for….[I]t could be more than Burgos. Maybe less. But whatever it is, it cannot be 100 percent.”
Adding a “final note,” Richman said:
“Perhaps this dissent will be used by the District to seek review in the Supreme Court….If the District does not file a petition for review, I urge the Supreme Court to grant review on its own motion.”
The case is A.H. v. Tamalpais Union High School District, 2024 S.O.S. 3303.
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