Filed 10/20/15 Ruelas v. Harper CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.,

         Plaintiffs and Respondents,                                     E051961

v.                                                                       (Super.Ct.Nos. RCVRS083017 &
                                                                          RCVRS085541)
JERRY HARPER et al.,
                                                                         ORDER MODIFYING OPINION
         Defendants and Appellants.                                      [NO CHANGE IN JUDGMENT]




         The opinion filed in this matter on October 6, 2015, is modified as follows:

         The second sentence of the first paragraph in the section titled T. Attorney Fees

shall be deleted.

         Except for this modification, the opinion remains unchanged. This modification

does not affect a change in the judgment.

         NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                             1
                                KING
                                       J.


We concur:

McKINSTER
             Acting P. J.

CODRINGTON
                       J.




                            2
Filed 10/6/15 Ruelas v. Harper CA4/2 (unmodified version)

                   NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
                been certified for publication or ordered published for purposes of rule 8.1115.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.

                                                       1
       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

Plaintiff and Respondent Martin Mendoza.

                                  I. INTRODUCTION

       At relevant times from 2002 through 2004, plaintiffs Guillermo Ruelas, Oscar

Miranda, Alejandro Espinoza, and Martin Mendoza were wards at the Heman G. Stark

Youth Correctional Facility (Stark). Stark is part of the Department of Juvenile Justice,

formerly the California Youth Authority (CYA).1 While they were wards, defendant

James Shelby, a Youth Correctional Counselor (YCC) at Stark, committed various sexual

acts with them, for which plaintiffs sued Shelby and his superiors, defendants Jerry

Harper and Xavier Ruiz.

       Defendants all appeal from a judgment in favor of Ruelas, Miranda, and Espinoza

in their action under title 42 United States Code section 1983 (section 1983); Shelby

appeals from a judgment in favor of Mendoza in his action for state law claims of



       1  For consistency with the parties’ designation and with the record below, we will
use the term CYA throughout this opinion.



                                             2
negligence and violation of Civil Code section 52.4; and Ruiz appeals from a judgment in

favor of Mendoza in his action under title 42 United States Code section 1983.

       Defendants all contend the trial court erred by:

       (1) Failing to dismiss Mendoza’s action for failure to exhaust his administrative

remedies.

       (2) Disclosing evidence to plaintiffs in violation of Evidence Code section 1045

and admitting that evidence at trial.

       (3) Awarding attorney fees in favor of Ruelas, Miranda, and Espinoza.

       Shelby adopts the arguments of Harper and Ruiz, who in turn adopt Shelby’s

arguments.

       Shelby contends the trial court committed reversible error by:

       (1) Permitting plaintiffs to raise his pretrial invocation of his Fifth Amendment

privilege against self-incrimination.

       (2) Allowing officers to read to the jury inadmissible hearsay statements from

investigative reports.

       (3) Allowing expert opinion testimony on the ultimate issue.

       (4) Admitting evidence of prior bad acts under Evidence Code section 1101.

       (5) Admitting evidence of his HIV status.

       (6) Excluding the testimony of his witnesses (Elizabeth Landeros & Salvador

Zendejas).

       (7) Excluding his proffered impeachment evidence.



                                             3
          Harper and Ruiz contend:

          (1) The evidence was insufficient to establish:

                 (a) they had actual knowledge of a substantial risk of the constitutional

injuries plaintiffs suffered;

                 (b) the subjective belief element of a deliberate indifference claim against

prison supervisory officials;

                 (c) the conscious disregard element of plaintiffs’ failure to protect claim;

                 (d) the causation element of plaintiffs’ failure to protect and cruel and

unusual policy claims; and

                 (e) the specific practice or policy that underlay the cruel and unusual policy

claims.

          (2) The trial court erred in admitting evidence of irrelevant accusations of other

wards and other extraneous and prejudicial information.

          (3) The trial court erred in its instructions to the jury concerning, among other

things:

                 (a) the actual knowledge element of plaintiffs’ failure to protect claim;

                 (b) subjective belief as an independent element of plaintiffs’ claim; and

                 (c) the deference to be given to prison officials’ discretion.

          (4) The trial court erred in admitting evidence of actions or omissions of others

irrelevant to plaintiffs’ failure to protect claim.

          (5) They were entitled to judgment based on qualified immunity.



                                                 4
       (6) The trial court erred in excluding evidence of what they actually knew.

       We conclude that Mendoza failed to exhaust his administrative remedies and,

therefore, we reverse the judgments in his favor.

       We further conclude as to Harper and Ruiz that the trial court erred by:

       (1) Failing to give requested instructions on the elements of a claim of deliberate

indifference based on a policy or practice.

       (2) Admitting evidence that was irrelevant to establish knowledge or notice.

       We find however that the cumulative nature of the errors is harmless.

       In regard to Shelby, while error occurred as to the admission of certain evidence,

he has failed to establish that the error resulted in a miscarriage of justice.

       As such, we affirm the judgment in favor of Ruelas, Espinoza, and Miranda

against defendants Shelby, Ruiz, and Harper.

                   II. FACTS AND PROCEDURAL BACKGROUND

       Following dismissal of other defendants and other claims, Ruelas, Miranda, and

Espinoza proceeded to trial against Shelby, Ruiz, and Harper on a cause of action for

violation of title 42 United States Code section 1983. Mendoza’s separate complaint was

consolidated with that of the other plaintiffs, and Mendoza proceeded to trial on state law

causes of action against Shelby, including violations of Civil Code section 52.4 and

negligence, and on a cause of action against Ruiz under title 42 United States Code

section 1983.




                                               5
       In their briefs, plaintiffs and defendants cite to various exhibits that were not

admitted into evidence in the trial court. Such citations do not satisfy the parties’

obligation to cite to evidence in the record to support contentions on appeal. (Connolly v.

Trabue (2012) 204 Cal.App.4th 1154, 1166, fn. 5.) We therefore have not considered

those citations in deciding this appeal.

A. The Parties

       Plaintiffs were wards at Stark between 2002 and 2004. Stark was the largest

facility in the CYA system, with approximately 1,400 wards between the ages of 18 and

26.

       Shelby was a YCC at Stark from 1995 to 2004. As a YCC, Shelby was a peace

officer who worked with 10 to 15 wards individually and in small group counseling

sessions. He was responsible for preparing parole reports, documenting wards’ behavior,

and ensuring that wards were enrolled in school and had jobs. A YCC also provided

basic supervision of the living units. There were approximately 150 YCC’s employed at

Stark. As a peace officer, Shelby had legal rights under the Public Safety Officers

Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) and as a member of the

California Correctional Peace Officers Association; those rights limited supervisors’

abilities to take disciplinary actions against Shelby.

       Harper was appointed director of the CYA in May 2000 and held that position

until December 2003. As director, he managed overall issues for the approximately

5,400-employee organization and oversaw its numerous youth facilities, including Stark.



                                              6
He had the authority to terminate a CYA employee when appropriate. The ward

grievance system was also under Harper’s supervision as director.

       Ruiz was the superintendent of Stark from April 1999 until he retired in June

2004. As superintendent, he supervised all Stark employees and oversaw educational

instruction; criminal rehabilitation services; security; medical, dental, and mental health

clinics; parole case work services; food service; administrative services; and plant

operations.

B. Shelby’s Conduct Toward Plaintiffs

       1. Ruelas

       Ruelas testified that he was not assigned to Shelby’s unit when he was a ward at

Stark, but Shelby offered to put him on a cleaning unit. Ruelas testified about several

incidents involving Shelby. One incident occurred when he was cleaning the halls.

Shelby pointed to Ruelas’s genitalia and said: “What are you working with? You know

what I want.” Ruelas pretended he did not know what Shelby was talking about. Once,

in the showers, Shelby approached Ruelas and again said he “wanted to see what

[Ruelas] was working with.” Ruelas backed away. Shelby said that Ruelas was

“lagging,” and that Ruelas “knew what [Shelby] wanted.” Another time, Shelby asked

Ruelas to help him with case work. He took Ruelas into the “senior’s office” and closed

the door. Shelby started touching Ruelas’s genital area and orally copulated Ruelas.

Ruelas did not fight back because he was scared. A few days later, Shelby again took

Ruelas into the senior’s office and said he would allow Ruelas to make a personal



                                              7
telephone call. Once in the office, Shelby asked Ruelas to start masturbating. Shelby

then knelt down and orally copulated Ruelas.

       Similar conduct occurred about 15 to 20 times. Ruelas repeatedly told Shelby

“no,” but Shelby did not respond. When Ruelas tried to stop Shelby, Shelby said, “You

don’t know what I can do,” which Ruelas interpreted as a threat.

       Around October 2003, Ruelas made attempts to avoid having sex with Shelby.

Shortly thereafter, Ruelas was attacked by two other wards. Another Stark YCC,

Terrance Parker, was present when Ruelas was attacked. Parker testified: “Shelby

open[ed] the door, the day room door and those wards came in and began to assault

Ruelas.” Shelby did not attempt to intervene or stop the assault. It appeared to Parker as

if “Shelby intentionally opened the door . . . so that Ruelas could be assaulted.” After a

period of time, the abuse escalated. Ruelas testified that Shelby would have Ruelas

penetrate Shelby, while Shelby masterbated.

       2. Espinoza

       Espinoza testified that Shelby gave him a television, and asked Espinoza “to show

him some,” which Espinoza understood to mean “show [Shelby] something sexual.”

Next, a ward brought Espinoza a pornographic magazine in his cell and told him to “get

ready” because Shelby was going to do a walk through. Espinoza covered his window

and did not say anything when Shelby knocked on the door; Shelby left.

       The next incident involved Espinoza asking Shelby for an adaptor for his

television. Shelby brought him into the senior’s office and said he would not let



                                             8
Espinoza have the adaptor until Shelby had “seen something.” Espinoza pulled his pants

down quickly and showed Shelby his penis; Shelby then gave him the adaptor. Another

time, Shelby asked Espinoza to help him in the parole agent’s office. Once in the office,

Shelby knelt down, pulled Espinoza’s pants down, and orally copulated Espinoza.

Espinoza said he wanted to go back to his cell, and Shelby told him not to make a big

deal about it.

       3. Miranda

       Miranda testified that Shelby demanded sexual favors from him, fondled his

genitals, and orally copulated him. The incidents took place in closed offices. Shelby

offered Miranda cigarettes and extra time out of his cell in exchange for sex.

       4. Mendoza

       Mendoza testified that Shelby orally copulated him several times from late 2003

through February 2004, and the only reason it stopped was because “Shelby was removed

from the facility.”

       5. Other Evidence of Shelby’s Conduct

       James Castillo, a chaplain at Stark, testified that in February 2004, a ward came to

him “kind of angry saying he just doesn’t like what’s going on up in the company . . .

referring to Shelby.” Between February and March 2004, at least three different wards

had contacted Chaplain Castillo regarding sexual abuse by Shelby. Chaplain Castillo

then contacted Frank Cantino, a CYA’s Office of Internal Affairs (IA) senior special

agent, and reported what the wards had told him.



                                             9
       Dennis Moorman worked as a YCC at Stark until 2002; his employment

overlapped that of Shelby for about a year. Moorman confronted Shelby on a “couple

occasions” when he saw Shelby taking wards into the senior’s office with the door

closed. Moorman brought the matter to his supervisor’s attention because he was

concerned about safety issues. Moorman was required to conduct random cell checks,

and he found contraband such as Walkmans, CD players, magazines, clothing, personal

items, and cosmetics in the rooms of wards who were apparent favorites of Shelby. More

than once, after Moorman had confiscated such contraband, he would later find that the

confiscated items had been returned to the wards. Moorman also reported those events to

his supervisor.

       Moorman eventually requested to be transferred to another unit because he did not

want to work with Shelby anymore; Moorman thought there was something inappropriate

going on, and he had a safety concern about Shelby’s well-being. Moorman had seen

condoms in the trash of the senior’s office. A “couple of times,” wards approached

Moorman and told him that Shelby was being inappropriate with wards or had some sort

of a relationship with wards; however, Moorman did not recall that they ever told him

they had sexual contact with Shelby. Moorman heard from “a couple wards” that they

would receive “presents” if they exposed themselves to Shelby.

       Patrick Barber worked as a YCC at Stark from 1998 to 2009. He worked directly

with Shelby for eight or nine months in 1999. During that time, he observed activities

and behavior with wards that he believed were inappropriate. Once, when the whole



                                           10
institution was on lockdown, Shelby spent an hour to an hour and a half with a ward in

the senior’s office with the door closed. Barber testified that Shelby went into the

senior’s office, with a ward, with the door closed, “on a regular and ongoing basis,” about

twice a week. When Shelby walked wards into the room, Barber saw staff “mimicking or

gesturing with a sexual connotation, typically associated with oral copulation.” Barber

never reported his observations to his supervisors because he felt he “would be retaliated

against.”

       A former coworker of Shelby testified that she had occasionally seen Shelby go

into the senior’s office with wards and close the door, although doors were supposed to

be left open for safety reasons.

       Alvin Cohn, plaintiffs’ expert on juvenile institution administration, testified that it

was relatively rare for wards to complain of homosexual behavior on the part of staff. He

explained that “juveniles are really intimidated in an institution. They’re frightened. In

the case of sexual behavior, homosexual behavior, they’re embarrassed. [¶] So it’s not

uncommon when something like this does occur they would hold that information and

[not] report it . . . because they don’t want to be accused of being gay, especially if

they’re not gay.” He concluded “that Mr. Ruiz’ performance was grossly inadequate and

left a great deal to be desired in terms of what one would expect of a superintendent of a

major institution.” When asked if he had seen anything in the documents he had

reviewed indicating Ruiz believed Shelby was a substantial risk to sexually assaulting

wards, Cohn responded that he believed Ruiz “should have been concerned for the health,



                                              11
welfare and safety of the wards and should have taken more direct action to remove Mr.

Shelby from contact with the wards until a complete investigation and everything put

together from all of the complaints and allegations demonstrated what I believe to be a

conclusion.” Cohn stated that Ruiz had been “[s]omewhere between negligent and

indifferent.”

C. Investigation of Ward Grievances

       The CYA and Stark had a grievance system through which a ward could complain

of staff misconduct. In addition, a ward could send a confidential letter to the

superintendent or director, or could call or write to the Office of the Inspector General

(OIG) or the ombudsman.

       When a ward filed a grievance about staff misconduct, the superintendent or his

designee would evaluate the allegations to determine whether the facts alleged, if true,

would support taking adverse action against the employee. If the grievance contained

insufficient facts to support adverse action, the grievance would be rejected, and the ward

would be informed of the right to file a new grievance seeking other relief. If additional

facts were needed, a preliminary inquiry would be conducted, typically by a senior

manager at the facility who was not in the line of supervision of the employee under

investigation. The superintendent or his designee would then either sustain the grievance,

deny the grievance, or order a formal investigation by the CYA’s IA office.

       IA was an independent department of the CYA with the responsibility of

investigating allegations of misconduct, and was headed by an assistant director who



                                             12
reported only to the director. IA investigators were not under the authority of

superintendents. Thus, Ruiz had no role in the management of IA and was barred from

having any influence on its operations and investigations.

       Ruiz and Harper testified that the terms “inquiry” and “investigation” were often

used interchangeably. However, an inquiry was less formal and was “solely designed to

gather additional facts to make a further decision whether an investigation should be

completed or whether there was sufficient facts available that the superintendent could

make a decision” on whether the grievance had merit. IA became involved when a

formal investigation took place. Harper testified that an inquiry could simply be closed

with a letter by the superintendent, and more evidence was gathered during an

investigation. Harper testified that not “all” IA investigations were brought to his

attention, that “it would depend on whether the investigative head thought [he] should see

it.”

       The OIG was an independent auditor of the California youth and adult correctional

systems. The OIG would inspect a facility, prepare a report, and make recommendations.

The OIG visited Stark in mid-2000 to review its operations, and produced a management

review audit report, dated October 2000, setting forth its findings.

       Among other things, the report criticized aspects of the grievance system at Stark

and the CYA investigative process. The report stated: “The investigative process does

not ensure that allegations of staff misconduct are promptly and properly investigated. In

addition, management actions relative to investigations that have been undertaken appear



                                             13
to be questionable. The facility’s investigation log does not properly track investigation

casework and investigations are not always completed in a timely manner. There is a

lack of criteria clearly differentiating Level I and Level II investigations. Investigations

are not always completed properly, and some are closed inappropriately. [Stark] also has

no written policies and procedures governing its investigative process.”

       With respect to deficiencies in the ward grievance process, the report stated: “A

number of grievances involving allegations of staff misconduct or staff assaults on wards

have received little or no attention from [Stark] staff.”

       The OIG then produced a follow-up audit report in July 2002. Harper concluded,

based on the follow-up report, that Stark “had made some significant progress in some of

the areas that the OIG had pointed out.” The follow-up report stated that the previous

backlog had been eliminated, but that there were still “24 open staff action grievances

more than 30 days old.”

       Harper testified that he did not have any concerns about the condition of the

operations at Stark based on the management audit report and did not, therefore, develop

any substantial concerns about Ruiz’s management techniques, practices, or acts.

D. Investigations and Ward Grievances Concerning Shelby Before 2004

       1. The 1999 Westlund Investigation

       In 1999, IA investigator Daniel Westlund conducted an investigation of alleged

misconduct by Shelby. The investigation concerned several allegations. First, that ward

Matthew Beck had reported that he had seen Shelby performing oral copulation on ward



                                              14
Edward Rivera in Rivera’s cell. Second, that Shelby had improperly left his post to speak

to Rivera about YCC Gentry, and that Shelby had made “untrue, slanderous statements”

to Rivera about Gentry. Third, that Shelby had allowed a ward to assist him in filing

confidential ward files. And, finally, that Shelby had telephoned the shop where Rivera

was assigned to work, falsely identified himself as YCC Thomas, and requested to speak

to Rivera.

       In conducting the investigation, Westlund interviewed ward Ricardo Tovar. Tovar

alleged that sometime before May 1999, Shelby found contraband in Tovar’s possession.

Shelby told Tovar that he would not report him if Tovar allowed Shelby to orally

copulate him. A maintenance worker at Stark told Westlund that after a discussion he

had with Tovar, “he got the impression an event of a sexual nature had taken place

between Shelby and Tovar.”

       Westlund recommended that all charges against Shelby be sustained. Ruiz

testified he did not specifically remember Westlund’s report, but his job included

reviewing investigative reports and making discipline recommendations. He did not

believe he had seen the exhibits to the report. Ruiz testified that he had recommended

Shelby’s termination.

       The matter went to CYA’s legal department, which eliminated Beck’s accusation

because Beck could not pin down the date of the alleged oral copulation of Rivera. The

legal department also eliminated the charge of allowing a ward access to confidential

files. The CYA director or his designee would ultimately decide whether to sustain the



                                            15
charges and what discipline to impose. Based on the remaining charges, the then-

director’s designee reduced Shelby’s discipline from the originally recommended

termination to a letter of reprimand.

       At the time of Westlund’s report of the 1999 allegations against Shelby, Harper

was not yet employed by CYA, and he had not received Westlund’s report.

              (a) The Perez Accusations

       In October 1999, ward Jason Perez assaulted Shelby and was charged for the

assault through Stark’s disciplinary system. An investigation was conducted as part of

the usual process when a ward was charged with misconduct. Perez asserted that Shelby

had “touched him in a sexual manner on or around his buttocks while escorting him back

to a holding room.” Perez assaulted Shelby after Shelby stepped into a holding room to

provide backup. The other officer present did not see Shelby touch Perez. The

investigator found Perez’s allegation not credible.

       As discussed at more length, post, the OIG recommended in its October 3, 2000,

report that “each allegation” against Shelby should be reinvestigated. Ruiz testified,

however, that an investigation into the allegations raised by Perez had in fact been

conducted.

       The matter was assigned to Kevin Ide of IA, who submitted a report in March

2001. Ide reported that Perez admitted he had attacked Shelby because Shelby had

touched his buttocks and had made a sexual comment. Perez told the investigator he had

“been playing with Shelby with sexual comment[s]” the day before the incident. During



                                            16
the investigation, Shelby denied he had any communication or contact with Perez before

the attack. However, three other wards stated they had heard conversations of a sexual

nature between Shelby and Perez. One ward reported hearing, the day before the

incident, that Shelby had said Perez “had a nice, quote, ass, end quote.” Lieutenant

Lefall, who witnessed the assault, stated he had been present to serve Perez with notice of

a disciplinary hearing. Lefall stated that he had never seen Shelby put his hands on

Perez; he did not remember seeing Shelby anywhere near Perez before the attack

occurred; and there had been no exchange of words between Shelby and Perez before the

attack.

          In June 2001, formal notice went out that Perez’s charges regarding improper

touching were not sustained. Harper knew that the matter had been reinvestigated and

the charges had not been sustained.

                  (b) The Guerrero-Valles Grievance

          In November 1999, ward Daniel Guerrero-Valles2 alleged that another ward had

broken his jaw by striking him in the face after football practice the previous month. He

claimed Shelby had set him up to be injured because he had told Shelby he heard Shelby

was providing sexual favors for other wards, and he wanted a different counselor.

          After a preliminary investigation, Ruiz then ordered an IA investigation. On the

form requesting the IA investigation, Ruiz did not mention the sexual communication,


          2   The ward’s name also appears in the record as Guerrerovalles.



                                               17
but only the broken jaw. Westlund was assigned the investigation. Westlund concluded

that the allegation was not sustained. Ruiz testified he concurred with Westlund’s

conclusions, and he did not think Shelby “was an out of the ordinary risk of [committing]

sexual misconduct against wards.”

       The OIG report of October 3, 2000, as discussed post, listed concerns about the

investigation, specifically, (1) that Guerrero-Valles had not been questioned about the

issue of sexual favors, which he had raised; (2) that Shelby had not been questioned about

Guerrero-Valles’s allegation; and (3) that the ward who had injured Guerrero-Valles had

not been interviewed adequately.

       Harper was not the director when the initial Guerrero-Valles investigation took

place. Harper had the matter reinvestigated, and he knew the charges had again not been

sustained.

       2. The October 3, 2000, OIG Report

       On October 3, 2000, the OIG provided a report to Harper criticizing CYA’s

handling of Beck’s and Rivera’s allegations and subsequent investigation, as well as the

investigations into the complaints of Tovar, Perez, and Guerrero-Valles.

       The report stated that Perez had alleged that in October 1999, Shelby had

provoked an assault “by inappropriately touching him in a sexual manner,” and that

despite Perez’s reports to Stark staff, “no follow up action ha[d] been taken.” The report

stated: “Based on its review of ward Perez’s allegations and the history of Shelby’s past

behavior, the [OIG] believes that action should have been taken to fully investigate



                                            18
Perez’s grievance and disciplinary appeal issues involving possible inappropriate sexual

misconduct by Shelby.”

       The report also discussed ward Tovar’s allegation that Shelby had propositioned

him for oral copulation in exchange for not reporting Tovar’s possession of contraband;

that allegation had supported the 1999 charge against Shelby for immoral sexual

behavior, and Westlund’s investigation had led to that charge being sustained. The OIG

identified several concerns about the handling of the matter, including that the basis for

eliminating the charge of immoral sexual behavior was questionable. The OIG noted that

Tovar’s allegation had not been fully pursued during the investigation and had not been

considered by the CYA legal office. The report stated: “Had Tovar’s allegation been

pursued more persistently, it is possible that the department could have more narrowly

defined the time period when Shelby allegedly propositioned Tovar for sexual favors.”

The report further noted that “Shelby’s sexual misconduct involving ward Tovar was

amended out of the charges without explanation. Had the reason been insufficient

evidence, there was no indication that [Stark] was asked to conduct further investigation

to rectify such deficiencies.”

       The OIG report also listed concerns about the investigation of Guerrero-Valles’s

allegations, including that “Ward Guerrero[-V]alles was not questioned regarding the

issue of ‘sexual favors’ that he raised in the private conversation with Shelby. Since this

was the alleged motive for Shelby to ‘set up’ Guerrero[-V]alles, it was important to

question Guerrero[-V]alles as to the source of the information and how Shelby responded



                                             19
to the issue.” In addition, “Shelby was not questioned regarding Guerrero[-V]alles’s

allegation that Shelby performed sexual favors for wards. The investigation should have

determined if Shelby was already aware of such a rumor and, if so, what he did about it.”

       The report concluded: “The [OIG] believes that a criminal investigation would

have provided the [CYA] with more flexibility in gathering evidence of potential

misconduct. Due to the number of sexual misconduct complaints on record[] for Shelby,

the department had a duty to conduct a thorough and proper investigation to make that

determination. That decision should have been pursued early in the investigative process

with the involvement of the internal affairs unit and its chief of investigations.” The OIG

recommended an additional IA investigation of Perez’s and Guerrero-Valles’s

allegations, among other things.

       The report recommended: “The director of the [CYA] should review and revise

the department procedures to ensure that complaints of staff misconduct are promptly and

thoroughly investigated and that the results of investigations are addressed promptly and

responsibly. A system should be developed to closely monitor cases from the initiation

of the investigation through final disposition. The statutory time limit for various

offenses should be considered and incorporated into this process.”

       The OIG further recommended: “The director of the [CYA] should develop a

departmental policy that clearly addresses how allegations of potential criminal conduct

should be pursued. This policy should focus on early review of requests by parole,




                                             20
institutions, and camps to open personnel complaint investigations to ensure proper

screening of these cases for assignment to the appropriate investigative unit.”

         Harper testified that he had received the October 3, 2000, OIG report, but that he

did not recall if he had received the attachments to that report. After he received the

report, he asked Ruiz to set up a meeting so he could meet Shelby and “get some idea of

what he looked like, and do that in an inconspicuous way.” Harper introduced himself to

a group of several employees, including Shelby.

         Also, after he received the report, Harper directed IA to conduct a thorough

investigation of the Perez incident. The conclusion of that investigation was that Perez’s

allegation was unsubstantiated. An IA investigation of Guerrero-Valles’s allegation was

also reopened, and the conclusion was the allegation was unsubstantiated. Harper never

heard any criticism about the results or process of those reinvestigations. Harper testified

that he did not ever conclude or believe, as a result of the reinvestigations, that Shelby

“constituted an out of the ordinary risk” of committing “forced sexual conduct” with

wards.

         Ruiz did not recall reviewing the October 3, 2000, OIG report regarding Shelby’s

conduct. He testified that reports or investigations from the OIG go directly to the

director.

                (a) The Tanori Grievance

         On July 29, 2000, ward Armando Tanori filed a grievance alleging that Shelby had

sexually harassed him more than once. Ruiz testified he “would have” reviewed the



                                              21
grievance in his job as superintendent of Stark, but he did not recall it. Ruiz’s program

administrator assigned the grievance for a preliminary inquiry. The inquiry was

terminated after Tanori was paroled. The letter terminating the inquiry stated: “Ward

paroled 8-11-00. Not enough time to complete inquiry. Matter extended until 8-27-00

[and] resolved.”

       Ruiz testified that the ward could have withdrawn the grievance or that it had been

resolved to the ward’s satisfaction. He stated: “All I can tell you is what the treatment

team puts down here as resolved. I don’t know what that means. But there was no

investigation, if that’s what you’re asking.” Ruiz further stated he did not know if he had

“received the end of this inquiry or this grievance after it was signed off by [the program

administrator].” He agreed he should have reviewed the grievance, but he did not recall

doing so. He did not know if the program administrator who signed off on the grievance

had been aware of prior claims of sexual misconduct against Shelby, but acknowledged,

“[t]hey should be aware.”

       Harper did not recall whether he had seen Tanori’s grievance, and a grievance that

was resolved at the institutional level would not have been sent to the director. Harper

did not know if the OIG had ever recommended further investigation of Tanori’s

grievance, although he believed the OIG had been critical of the handling of that

grievance.




                                            22
              (b) The Delgado Grievance

       On April 1, 2002, ward Tomas Delgado wrote Ruiz a letter stating that Shelby had

approached him “in a sexual way.” The letter stated that Shelby had sent another ward to

tell Delgado that if Delgado wrote up a grievance on Shelby, Shelby was “going to ‘f---

[him] up.’” The letter continued: “Mr. Shelby is known for bringing contraband for his

workers or what they call his mission boys. Mr. Shelby came at me in a sexual way

because on 3-30-02, I was showering in the holding room area and he was staring at me.

When I looked up and I said, ‘what’s up?’ he said, ‘[you’re] packing, I see.’” Delgado

further wrote that Shelby told him that “if I let [Shelby] give me oral that I wouldn’t have

nothing to worry about anything financially [sic].”

       Ruiz testified he did not recall the letter because he had received hundreds of

letters and dozens of grievances. Ruiz assigned Delgado’s grievance for inquiry. Ruiz

did not know if the investigator had been aware of prior grievances against Shelby. After

receiving the investigator’s report, Ruiz did not believe the evidence supported Delgado’s

accusations, and he did not believe there was an “increased risk” of Shelby committing

“sexual misconduct with wards relative to . . . other staff members.”

       Harper did not recall knowing about Delgado’s accusation. He did not know in

April 2002 that another ward had come forward claiming Shelby wanted to orally

copulate him. Harper agreed that the statements in Delgado’s grievance “should have

warranted an investigation.”




                                            23
              (c) The Walker Grievance

       In March 2003, ward Tyrone Walker filed a grievance stating that Shelby had

verbally and sexually harassed him, as well as sexually assaulted him. Harper assigned

the matter to IA. In a memo from IA to Harper, it was reported that Walker had claimed

Shelby was going to handcuff him and take him from a holding room to his cell alone,

rather than with another staff member. Shelby told Walker, “I can handle you myself,”

which Walker interpreted as a sexual comment. Shelby also brushed against Walker and

grabbed Walker’s buttock. Shelby reported, however, that Walker had assaulted him

when Shelby was escorting him to his cell.

       After the inquiry was completed, an IA special agent sent Harper a memo

recommending that no further investigation be conducted because there were no other

witnesses and no corroborating evidence. Harper agreed that Shelby’s failure to follow

security procedures by attempting to escort a ward by himself should have been

addressed by Stark’s management.

              (d) The Galustian Incident

       In June 2003, Shelby was observed on security cameras leaving a bag outside the

cell of ward Ruben Galustian. After leaving the bag, Shelby then opened the door so

Galustian could bring the bag into his cell. Shelby admitted “placing a package (plastic

bag) containing a ‘bunt-cake’ and ‘candies’ at the outside of [Galustian’s] door.”




                                             24
      Shelby’s conduct violated Stark rules against bringing items into the institution,

and Ruiz ordered an IA investigation. Based on Ruiz’s recommendation, Shelby received

a five-day suspension for violating the rules. Harper did not know about the incident.

             (e) The Johnson Grievance

      In October 2003, ward Paul Johnson filed a grievance alleging that Shelby was

harassing him and was treating him “unequally” by telling other wards not to talk to him.

Johnson further alleged that he had “received information from several wards that (YCC)

Mr. James Shelby ha[d] offered sexual advances to them for job opportunities and

material goods from the community that are not allowed into the facility, and is

considered ‘contraband’ according to policy, if they engaged in any sexual activity.”

Johnson continued: “One of these wards reported to me that he would occasionally

expose[] his penis and at the same time masturbate[e] it when Mr. Shelby conducts his

bank checks while he’s in his room. The ward reported that Mr. Shelby would stop at his

door and star[e] at him when [he] does this sexual act. Moreover, this ward reported to

me that Mr. Shelby would write him a note stating that he will be coming down the bank

and wants to see his penis.” The ward “furthermore reported to [Johnson] that Mr.

Shelby will always offer sexual advances to him and will either reject Mr. Shelby’s

request or lead him on so that he can manipulate Mr. Shelby for more goods and juice.”

Johnson identified the ward as “Espinoza.” Johnson’s grievance further stated: “Ward

Mendoza reported to me that Mr. Shelby offered sexual advances to him, gave him

goods, and made him a company worker. Ward Mendoza reported to me that he did not



                                            25
. . . show any of his [private] parts to Mr. Shelby and rejected all of his sexual offerings

. . . .”

           Ruiz denied Johnson’s grievance on the ground it could not be classified as a staff

action grievance and because it was based on hearsay. It was never investigated. Ruiz

did not tell Harper about the grievance, and Harper denied knowing about it.

E. Ward Accusations Against Shelby in February 2004 and Subsequent Investigations

           On February 18, 2004, a group of wards at Stark, including Ruelas, Miranda, and

Espinoza, gave statements regarding a joint investigation by IA and the Chino Police

Department, and Shelby was placed on paid administrative leave.3 Frank Cantino, an IA

agent, and Jack Whitworth, a Chino police detective, conducted the investigation.

Among other things, the wards accused Shelby of using various inducements to permit

him to perform oral sex on each of them between September 2002 and February 2004.

           From March 2005 through November 2006, a criminal investigation of Shelby was

conducted by IA special agent Frank Starmer. Starmer took over the Shelby investigation

from agent Cantino.

           After each investigation, the district attorney declined to prosecute the matter

because of credibility problems with the accusers.

           Over objections, the trial court allowed Cantino to testify about his interviews with

wards “as possible notice to Ruiz.” Cantino testified that ward Miguel Canas reported


           3   Shelby subsequently permanently retired on stress disability.



                                                 26
that in exchange for letting Shelby perform oral sex on him, Canas was provided with a

Walkman and a television set. Ward Luis Salcido reported sexual acts consistent with

those reported by other wards, “[i]n terms of the acts performed and the location of the

acts.” The acts occurred between December 2003 and February 2004. Ward Octavio

Navarette reported being a victim of a sexual act by Shelby. Ward Steven Ortiz reported

being “subject to [Shelby’s] modus operandi.”

       As recounted, ante, ward Tovar reported, during Westlund’s investigation, that

Shelby caught him with contraband. Shelby indicated he would not write Tovar up, but

stated, “[y]ou’re going to owe me.” Shelby later said he would orally copulate Tovar.

Tovar told Westlund that Shelby had never touched him and had never brought up the

topic again.

       At trial, Tovar’s videotaped deposition was introduced. In his deposition, Tovar

testified that when wards came out of the shower, Shelby would “smack us on the butt.”

Shelby had done that to Tovar about 15 times. Shelby made comments toward Tovar and

other wards, such as “Wow, look at his package,” when they were in the shower.

       Once when contraband was found under Tovar’s bed, Shelby told him he had a

“write-up coming”; he could “work it off,” and he would find out the next day what

Shelby “meant.” The next day after a group meeting, Shelby took Tovar into an enclosed

office and told him to pull his pants down and to let Shelby “suck [his] dick.” Tovar let

Shelby do so because he feared that if he did not, his sentence would be extended. Tovar

ejaculated, and Shelby put the semen in a napkin and threw it in the trash. Shelby told



                                            27
Tovar “not to say a word” about it, which Tovar interpreted as a threat. Shelby said not

to worry about the write-up, that he would “rip it,” and then Shelby ripped some paper.

Tovar did not engage in any other sexual acts with Shelby, but Shelby stared at him

during hallway routine checks and told him to pull his pants down and “pull it out.”

Tovar exposed himself to Shelby about three times, and he saw Shelby asking other

wards to expose themselves “a lot of times.” Shelby sent him notes telling him not to say

a word about what had happened. Tovar told a cook, a janitor, and a maintenance worker

about what had happened. They all told him to go to the staff, but Tovar did not feel he

could trust the staff. He did not tell anyone else because he was embarrassed. He did not

remember if he had told Westlund during the investigation, but he had tried to be as

accurate as he could during his interview. Tovar told Starmer and another agent that

Shelby had orally copulated him.

       Douglas Gerard testified that while he had been a ward at Stark, Shelby would

stare at him in the shower in a way that was inappropriate. Gerard testified that in one

incident, he asked Shelby “for a phone call,” and Shelby let Gerard use the telephone in

the senior’s office. After Gerard made the call, Shelby said something like, “[t]hat’s not

for free.” Shelby then grabbed Gerard’s penis, started stroking him, and performed oral

sex on Gerard. After that incident, whenever Gerard helped Shelby by carrying files or

other items, Shelby would touch him and make comments, but there were no other

instances of oral sex. Another encounter involved Shelby taking a television set away

from Gerard. Gerard testified that the only way to get it returned was by “flirting” with



                                            28
Shelby and letting Shelby grab him. Twice, Shelby brought Gerard packages containing

cigarettes and marijuana, which Shelby had received from Gerard’s friends outside the

institution. Another time, while in the senior’s office, Shelby put a condom on the desk

and asked Gerard to engage in anal sex with him. Gerard refused and left the office.

Gerard testified that he did not remember telling officers that he did not have a sexual

relationship with Shelby. Gerard stated: “I might have told them. I just don’t remember

if I did or didn’t. . . . [I]t’s an embarrassing thing to talk about.”

       Ortiz, who had previously reported to Cantino during the joint IA/Chino Police

Department investigation 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

Shelby to return to Stark.

       Cantino testified that in response to the nature of the investigation, Ruiz stated

either that “Hispanics don’t engage in homosexual activity with [B]lacks” or that Ruiz

“did not believe Hispanics engaged in homosexual behavior.”

F. Verdicts and Judgments

       The jury entered special verdicts finding that Shelby masturbated, orally

copulated, or engaged in anal sex or other severe sexual conduct with each plaintiff; that

no plaintiff had consented to such acts; and that Shelby’s conduct was a substantial factor

in causing harm to each plaintiff.

       As to claims against Harper, the jury entered special verdicts finding that

Espinoza, Miranda, and Ruelas were imprisoned under conditions that exposed each of



                                               29
them to a substantial risk of serious harm and/or sexual abuse, and Harper knew of such

risk and disregarded the risk by failing to take reasonable measures to correct it. The jury

found that Harper’s conduct was a substantial factor in the harm caused to Espinoza,

Miranda, and Ruelas.

       As to claims against Ruiz, the jury entered special verdicts finding that plaintiffs

were imprisoned under conditions that exposed each of them to a substantial risk of being

seriously harmed and/or sexually abused, and Ruiz knew of such risk and disregarded it

by failing to take reasonable measures to correct it. The jury also found that Ruiz’s

conduct was a substantial factor in the harm caused to plaintiffs.

       The jury awarded damages of $12,000 to Espinoza, $250,000 to Miranda,

$655,896 to Ruelas, and $160,000 to Mendoza. The jury found that the conduct of

Shelby, Harper, and Ruiz had been proven by clear and convincing evidence.

       The parties stipulated to punitive damages, as follows:

              Against Shelby: $46,309.67 (Ruelas); $28,023.67 (Miranda); $666.66

(Espinoza); and $25,000 (Mendoza).

              Against Ruiz: $21,384.66 (Ruelas); $12,948.68 (Miranda); $666.66

(Espinoza); and $15,000 (Mendoza).

              Against Harper: $30,734.67 (Ruelas); $18,598.67 (Miranda); and $666.66

(Espinoza).




                                             30
       The trial court awarded costs and attorney fees to counsel for Ruelas, Miranda,

and Espinoza against Shelby, Harper, and Ruiz jointly and severally in amounts totaling

more than $6 million. The fee awards to Mendoza are not at issue in this appeal.

       Additional facts are set forth in the discussion of the issues to which they are

relevant.

                                    III. DISCUSSION

A. Exhaustion of Administrative Remedies

       Shelby and Ruiz contend the trial court erred in finding that Mendoza had

exhausted his administrative remedies.

       1. Additional Background

       Mendoza filed his initial complaint in February 2005, while he was still

incarcerated at Stark. Mendoza proceeded to trial on claims against Ruiz under title 42

United States Code section 1983 and against Shelby under state law (Civ. Code, § 52.4,

negligence) for sexually assaulting him and molesting him while he was a ward at Stark.

       Mendoza concedes he did not file a written grievance before filing suit, although

he knew how to do so. When the sexual conduct began, Mendoza did not complain to

anyone because he feared retaliation from other wards or staff for filing a complaint

based on sexual abuse, and because he did not know of anyone he could trust. After he

learned Shelby had been removed from Stark and that other wards had already

complained about Shelby, Mendoza testified that he felt safe and did not feel the need to

complain. Once Mendoza heard rumors that Shelby might return, he wrote two letters to



                                             31
Chaplain Castillo and spoke to him in person about the molestation. Mendoza went to

the chaplain because he heard that other wards had spoken to the chaplain, and that other

wards had been interviewed about Shelby. Chaplain Castillo in turn reported the

incidents to IA agent Cantino.

       Ruiz moved for summary adjudication on the ground Mendoza had failed to

exhaust his administrative remedies. The trial court initially granted that motion,

concluding that Mendoza had failed to file a written grievance under the procedures

available at Stark.

       Shelby moved for summary judgment on the same ground. The trial court held

that while Mendoza’s informal report to the chaplain was insufficient to create any

exception to the exhaustion requirement with respect to federal claims, it was sufficient

with respect to the state law claims against Shelby. The court also found a “triable issue

with regard to whether he could have even filed a proper grievance based on the

circumstances at Stark at that time.” The court thus denied Shelby’s motion for summary

judgment.

       Harper and Ruiz moved for summary adjudication of the claims of Ruelas,

Espinoza, and Miranda on the ground they had failed to exhaust administrative remedies.

At the hearing on the motion, defense expert Edward Izaguirre, a wards’ rights

coordinator at Stark from August 2003 to December 2005, testified that the “Ward’s

Rights Handbook” (the handbook), which was given to each ward upon entry into the

facility, was one of the documents containing a description of Stark’s grievance process.



                                            32
The handbook provides: “The Ward Grievance Procedure is a process you may use when

you have a complaint or problem with any Youth Authority policy, rule or practice, or

with any behavior or action directed toward you by staff or other wards. [¶] If you have

a complaint about a policy or staff member, talk it over with staff first. In most cases,

they can help you work it out. Try to find an answer to your problem. You are not

required to talk about it before filing a grievance, but you are encouraged to do so.”

       Izaguirre detailed the steps through which a staff action grievance was processed.

If a staff action grievance was denied, “[t]he appeal process was the regular grievance

system.” Izaguirre testified that at Stark, “we recognize what they call a zero level. A

zero level is called the informal resolution. The level one is the panel level. That’s

where you go to panel and you have the ward who is filing the grievance, and he presents

his case to the panel, and then, it is either accepted as the grievance or it’s denied. If it’s

denied, then it goes up to the appeals, which is the next level, which is the level two.”

Izaguirre clarified that the informal process took place “after the grievance has been

filed,” and in the informal process, “[t]he grievance writer and the senior youth counselor

sit down and see if they can mediate it before it gets to the first level.” He further

testified that a grievance concerning sexual assault by a YCC would not be something

that would be informally resolved. The appeal process for staff action grievances was not

set forth in the handbook, but was described in the “Administrative Policy and Operations

Manual.” Izaguirre further stated that if a ward’s staff action grievance was denied,




                                              33
“[t]he ward is advised that he could go through the regular grievance system as his

appeal.”

       The trial court found: “First of all, I don’t think Wright [v. State of California

(2004) 122 Cal.App.4th 659 (Wright)] applies to the [CYA]. Second of all, Welfare and

Institutions Code [section] 17666.5 [sic, see § 1766.5] just dictates a grievance system.

Title 15, Division 4 Chapter One Article 5 lays out the grievance procedure and does not

make it mandatory. [¶] And furthermore, the mandatory language in there has to do with

the superintendent and regional administrative [remedies]. And furthermore, I don’t

believe as outlined in there that this type of grievance even comes within the procedure.

And it’s my feeling that it probably just comes strictly under the Tort Claims Act.”

       Thereafter, Mendoza requested reinstatement of his claim against Ruiz based on

the ground that he had exhausted available administrative remedies even though he had

not filed a formal written grievance. He argued that his oral report of Shelby’s abuse to

Chaplain Castillo satisfied the local grievance process that encouraged wards to make

oral reports before filing written grievances. He further contended that as a result of his

oral report, Mendoza had obtained the relief he sought: He was protected from further

abuse; his claims were investigated; and, thus, he had exhausted his administrative

remedies. In support of his motion, Mendoza filed, among other things, excerpts from

the deposition testimony of defendants’ expert witness, Jay Aguas. Specifically, Aguas

replied, “no,” to the question, “Does a ward have to file a grievance if they are the victim

of a criminal act by a staff member?” and “yes” to the question, “If . . . a ward is the



                                             34
victim of a criminal act by a staff member, may that ward seek assistance to address his

victimization without utilizing the grievance system?”

       The trial court reversed its previous order granting summary judgment and granted

Mendoza’s motion to reinstate his federal claim against Ruiz. The court held that

Mendoza’s oral complaint to the chaplain satisfied the exhaustion requirement and

fulfilled the remedies available at Stark.

       2. Exhaustion Requirements Under Federal and State Law

       Under the Prison Litigation Reform Act (PLRA), a prisoner must exhaust all

available administrative remedies before bringing a title 42 United States Code section

1983 action. Specifically, title 42 United States Code section 1997e(a) provides: “No

action shall be brought with respect to prison conditions under section 1983 of this title,

or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.” In Booth v.

Churner (2001) 532 U.S. 731, 733-741, the Supreme Court held that the PLRA requires a

prisoner to complete a prison administrative process even when the prisoner seeks only

money damages, and the available process does not provide for recovery of such

damages. (Id. at p. 734.)

       The exhaustion requirement similarly applies to state law claims: “Under both

state and federal law, a prisoner must exhaust available administrative remedies before

seeking judicial relief. . . . The exhaustion requirement is jurisdictional: a court cannot




                                             35
hear a case before a litigant exhausts administrative remedies.” (Wright, supra, 122

Cal.App.4th at pp. 664-665.)

       Welfare and Institutions Code section 1766.5 provides for the establishment of a

grievance system within the CYA: “The director shall establish and maintain a fair,

simple, and expeditious system for resolution of grievances of all persons committed to

the Youth Authority regarding the substance or application of any written or unwritten

policy, rule, regulation, or practice of the department or of an agent or contractor of the

department or any decision, behavior, or action by an employee, agent, contractor, or

other person confined within the institutions or camps of the Youth Authority which is

directed toward the grievant, other than matters involving individual discipline.” The

California Code of Regulations defines a grievance as “a complaint from a ward

concerning: [¶] (1) The substance or application of any written or unwritten policy or

practice of the Department, . . . or [¶] (2) [a]ny behavior or action directed toward a

ward by staff or other wards.” (Cal. Code Regs., tit. 15, § 4085, subd. (a)(1), (a)(2).) A

ward may file a grievance concerning “[a]lleged employee misconduct, improper or

inappropriate behavior, or failure of an employee to perform assigned duties.” (Cal.

Code Regs., tit. 15, § 4086, subd. (e).)

       In Wright, the court affirmed the dismissal of a prisoner’s action against the state,

the department of corrections, and individual administrative and medical personnel for

medical malpractice and failure to furnish medical care, holding that the prisoner had

failed to exhaust available administrative remedies, even though money damages were



                                             36
unavailable in the administrative process. (Wright, supra, 122 Cal.App.4th at pp. 668-

669.) The court rejected the prisoner’s contention that substantial compliance (i.e.,

completion of two of four levels of review) was sufficient to exhaust administrative

remedies. (Id. at p. 664.) The court explained that “[t]he exhaustion of [the]

administrative remedies requirement furthers several important societal and governmental

interests. These include bolstering administrative autonomy, mitigating damages, giving

agencies [the] opportunity to make factual findings, encouraging settlement, filtering out

frivolous claims, fostering better prepared litigation, and promoting judicial economy.

[Citations.] In addition, the requirement ensures ‘the use of administrative agency

expertise and capability to order and monitor corrective measures . . . .’ [Citation.]” (Id.

at p. 666.)

       3. Exhaustion Requirements Apply to Wards at Stark

       Mendoza argues that exhaustion requirements might not apply to wards in juvenile

detention facilities. We disagree. By its terms, the PLRA applies to juvenile wards, as

well as to adult prisoners: “As used in this section, the term ‘prisoner’ means any person

incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law . . . .” (42 U.S.C. § 1997e(h).)

Federal courts have held that the PLRA applies to juvenile detention facilities, as well as

to prisons. (See, e.g., Christina A. v. Bloomberg (8th Cir. 2003) 315 F.3d 990, 994-995;

Alexander S. v. Boyd (4th Cir. 1997) 113 F.3d 1373, 1383-1385, abrogated on another

ground by Martin v. Hadix (1999) 527 U.S. 343, 352.)



                                             37
       Mendoza has cited no authority for the suggestion that wards in juvenile detention

facilities are exempt from state law exhaustion requirements, and our own research has

revealed none. Moreover, the regulations applicable to grievances of adult prisoners

(Cal. Code Regs., tit. 15, §§ 3084.1-3084.7) under consideration in Wright do not differ

in any meaningful way from the regulations applicable to wards (Cal. Code Regs., tit. 15,

§ 4086 et seq.). Thus, the reasoning and conclusions of the court in Wright are fully

applicable to the case before us.

       Finally, we note that Mendoza was not a minor when the sexual conduct occurred.

Harper testified that all wards at Stark are between 18 and 26 years old.

       4. Neither an Oral Complaint Nor Participation in an IA Investigation Exhausted

Administrative Remedies

       Mendoza argues that by making an oral complaint and by participating in the IA

investigation of Shelby, he satisfied the exhaustion requirement. We disagree. Courts

have held that participation in an IA investigation does not satisfy the PLRA exhaustion

requirement. (Pavey v. Conley (7th Cir. 2011) 663 F.3d 899, 905-906.)

       In Pavey, it was undisputed that the plaintiff did not file a grievance under the

prison’s grievance process, although he had complained to prison officials. (Pavey v.

Conley, supra, 663 F.3d at p. 905.) The court held: “No plausible reading [of applicable

procedures] even hints that if an inmate cannot write, [the plaintiff had a broken hand] he

may abandon the requirement of filing a written form with the grievance specialist so

long as he has told someone in the prison about his ailments. . . . When administrative



                                             38
procedures are clearly laid out, as in this case, an inmate must comply with them in order

to exhaust his remedies. [Citations.]” (Ibid.) The court also rejected the argument that

Pavey’s participation in an IA investigation was sufficient to exhaust administrative

remedies. The court explained that the PLRA “is concerned with the ‘remedies’ that

have been made available to prisoners. An internal-affairs investigation may lead to

disciplinary proceedings targeting the wayward employee but ordinarily does not offer a

remedy to the prisoner who was on the receiving end of the employee’s malfeasance.

[Citations.] [¶] And even if the internal-affairs investigation could result in some relief

for the prisoner, the Supreme Court has rejected any suggestion that prisoners are

permitted to pick and choose how to present their concerns to prison officials. ‘The

benefits of exhaustion can be realized only if the prison grievance system is given a fair

opportunity to consider the grievance. The prison grievance system will not have such an

opportunity unless the grievant complies with the system’s critical procedural rules.’

[Citations.] If a prisoner can be required to submit his grievance in the particular manner

and within the precise period of time designated by the prison’s administrative

procedures, then he must also be required to present his grievance in the proper forum.”

(Id. at pp. 905-906; see Panaro v. City of North Las Vegas (9th Cir. 2005) 432 F.3d 949,

953-954 [rejecting the argument that participation in an internal affairs investigation

constituted constructive exhaustion of administrative remedies]; Thomas v. Woolum (6th

Cir. 2003) 337 F.3d 720, 734 [“In determining whether the inmate has exhausted his or

her remedies, we . . . look to the inmate’s grievance, not to other information compiled in



                                             39
other investigations”], abrogated on other grounds in Woodford v. Ngo (2006) 548 U.S.

81, 87.)

       In Macias v. Zenk (2d Cir. 2007) 495 F.3d 37, the court held that an informal

complaint did not satisfy the exhaustion requirement. The administrative remedy system

at issue included three tiers: “The first tier requires the inmate to report informally the

issue to the staff, the second tier requires the inmate to file a written remedy request with

the Warden, and the third tier requires the inmate to file appeals with the appropriate

Regional Director and then with the General Counsel.” (Id. at p. 42.) Thus, even when

the available procedures include an informal report to staff, compliance with that step

alone does not exhaust administrative remedies.

       Mendoza further argues that Izaguirre’s testimony established that there was a

“zero level” procedure, under which a ward could report a problem orally, in addition to

the formal grievance procedure at Stark. However, Izaguirre clarified in his testimony

that the informal “zero level” procedure applied only after a ward had filed a written

grievance; the procedure was not, as Mendoza argues, a substitute for filing a written

grievance.

              (a) The Futility Exception Does Not Apply

                     (i) Additional Background

       In the OIG July 2002 follow-up audit report, numerous problems with the ward

grievance system were identified. The report stated that “fewer than half” of the prior

recommendations to Stark management had been implemented, and that the ward



                                              40
grievance system had “not improved.” Specifically, the report stated: “Problems with

the ward grievance system continue. The institution does not investigate all ward

grievances in a timely manner. The follow-up review found 24 open staff action

grievances more than 30 days old, one of which dated back to August 2000.” “Another

seven staff action grievances, received from May through July 2001 were still

outstanding as preliminary fact-finding investigations. Of the 44 outstanding regular

grievances, 11 (25%) were more than 30 days old.” The report further stated: “The

institution has not developed written policies and procedures for conducting internal

affairs investigations. Moreover, the institution is not properly tracking investigative

casework. Careful monitoring of individual investigations to ensure thoroughness, proper

disposition, and prompt completion is not always accomplished.”

                     (ii) Analysis

       Mendoza argues that the exhaustion requirement does not apply when an effective

administrative remedy is wholly lacking. He further argues that he was excused from

filing a grievance because the evidence showed it would have been denied.

       Federal courts have held that the futility exception to the exhaustion requirement

does not apply in PLRA suits. (Booth v. Churner, supra, 532 U.S. at p. 741 fn. 6 [stating

that the court would “not read futility or other exceptions into statutory exhaustion

requirements where Congress has provided otherwise”].)

       Under state case law, the futility exception applies “only if the party invoking it

can positively state that the administrative agency has declared what its ruling will be in a



                                             41
particular case.” (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1313.)

Mendoza has made no such showing. The OIG reports on which Mendoza relies were

prepared in 2000 and 2002, before the conduct alleged in the current action. Mendoza

also argues that Ruiz’s treatment of ward Johnson’s grievance indicates he would have

denied any grievance raising similar allegations. However, the basis for the denial of

Johnson’s grievance was that it was based on hearsay. Mendoza has not established that

if he had filed his own grievance, it would have been similarly dismissed.

              (b) No Exception for Victim of Criminal Act

       Finally, Mendoza argues that expert witness Aguas stated that a ward who was the

victim of a criminal act did not have to use the formal grievance procedure. It goes

without saying that a ward is not required to file a formal grievance when he is the victim

of a criminal act: For whatever reasons, any ward may choose not to pursue such a

matter further. However, that does not mean the ward who declines to file a grievance

may later seek redress by filing a civil suit; rather, the law is clear that he may not do so

unless he has completed the formal grievance process. (See Wright, supra, 122

Cal.App.4th at pp. 668-669.)

       We conclude that the trial court erred in ruling Mendoza had exhausted his

administrative remedies, and the judgments in his favor must be reversed.

B. Disclosure of Evidence Under Evidence Code Section 1045

       Defendants argue that the trial court erred in disclosing evidence to plaintiffs in

violation of Evidence Code section 1045 and admitting that evidence at trial.



                                              42
       1. Additional Background

       During discovery, plaintiffs filed a Pitchess4 motion under Evidence Code

sections 1043 through 1045 for disclosure of records in Shelby’s personnel file. The trial

court granted the motion and ordered the production of information in that file going back

to October 19, 1997. The trial court then conducted an in camera review of the file and

ordered the release of documents, including Westlund’s 1999 report of his investigation

into the accusations against Shelby, the OIG’s October 3, 2000, report discussing the

Westlund report, as well as other matters relating to Shelby.

       Specifically, the Westlund report and the October 3, 2000, OIG report contained

references to the complaint made against Shelby in 1999 by ward Beck stating he had

seen Shelby performing oral sex on ward Rivera in Rivera’s cell. CYA records

confirmed that the incident could have occurred only between July 1996 and January

1997, more than five years before Shelby’s misconduct as to plaintiffs.

       Defendants moved in limine to exclude from evidence the information concerning

Beck’s accusation against Shelby on the ground, among others, that disclosure and

admission of such evidence violated Evidence Code section 1045, subdivision (b)(1),

because it concerned conduct that had occurred more than five years before the conduct

at issue in the current case. After conducting a hearing, the trial court granted the motion:

“I’ll exclude the Beck-Rivera portions of the file from evidence. And unless there’s other


       4   Pitchess v. Superior Court (1974) 11 Cal.3d 531.



                                             43
ways of getting it in, I’ll exclude reference to that in opening statement or any other

purpose.” However, the trial court later permitted use of such evidence throughout the

trial, including allowing plaintiffs’ counsel to question Ruiz regarding the allegations in

Beck’s complaint and to have Ruiz read an excerpt from the Westlund report to the jury.

       (2) Discussion

       Peace officers’ personnel records are privileged and may not be disclosed except

through statutory procedures. (Pen. Code, §§ 832.7, 832.8; Evid. Code, §§ 1043-1047;

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.)



                                              44
       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. While plaintiffs

assert that Evidence Code section 1045 governs disclosure, not admissibility, only

relevant evidence is admissible. (Evid. Code, § 350.) The Legislature’s determination of

relevance is binding on us.

       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

conduct underlying the Beck-Rivera complaint, which was discussed in the Westlund

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 in April 1999, the date he was hired; Harper’s “failure

to protect” arguably began in May 2000, the date of his hire. As such, the Beck-Rivera

conduct which occurred between July 1996 and January 1997 was relevant to the




                                              45
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.”

C. Objections to Polygraph Evidence

       Defendants challenge the admission of polygraph evidence relating to the Beck-

Rivera accusations. We agree that as to Shelby 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 Harper and 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



       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.”].)



                                              46
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 Harper and Ruiz had actual knowledge of a substantial

risk to plaintiffs. To show such knowledge plaintiffs needed to establish that Harper and

Ruiz either directly investigated or were 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 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



                                             47
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

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



                                              48
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.

       2. Analysis

       Shelby’s hearsay objection to the reading of ward statements in investigative

reports is meritless 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.



                                              49
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

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



                                             50
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.

       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



                                             51
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

Code section 1101, subdivision (b), allows admission of uncharged conduct “when

relevant to prove some fact (such as motive, . . . intent, preparation, [or] plan . . .) other

than [the defendant’s] disposition to commit such an act.” In People v. Ewoldt (1994)

7 Cal.4th 380, the court explained: “[E]vidence that the defendant has committed

uncharged criminal acts that are similar to the charged offense may be relevant if these

acts demonstrate circumstantially that the defendant committed the charged offense

pursuant to the same design or plan he or she used in committing the uncharged acts.

Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or

distinctive; it need only exist to support the inference that the defendant employed that

plan in committing the charged offense.” (Id. at p. 403.)

        Shelby contends the challenged evidence involving sexual contact with other

wards “does not share sufficient features with the allegations to fall under the common

plan exception,” and that the allegations by other wards were not sufficiently similar to

those of plaintiffs to admit them under the common plan exception to Evidence Code

section 1101. In his statement of facts, which spans only six pages of his opening brief,



                                               52
despite an appellate record that fills over 100 volumes and approximately 9,000 pages of

reporter’s transcript, Shelby gives scant details of the conduct plaintiffs alleged.

Specifically, he states that plaintiffs accused him of “allegedly using various positive and

negative inducements to coerce them into permitting him to perform oral sex on them on

one or more occasions,” and that Ruelas also alleged that Shelby had given him a cellular

telephone in exchange for sexual favors. Similarly, in listing the various categories of

evidence that were purportedly inadmissible under Evidence Code sections 1101 and 352,

Shelby again provides only scant details, i.e., that various wards accused him of “having

sex” with him, some in exchange for contraband, and that “a number of unidentified

wards had told [Chaplain Castillo] of other alleged instances of sexual misconduct” by

Shelby.

       We do not consider error as an abstract proposition. A party’s failure to fairly

summarize the evidence in the light most favorable to the judgment results in forfeiture of

evidentiary claims. (See, e.g., Western Aggregates, Inc. v. County of Yuba (2002) 101

Cal.App.4th 278, 290.) Here, Shelby merely asserts, without any meaningful discussion

of the specific evidence he challenges or of the plaintiffs’ allegations, that the “‘prior bad

acts’ evidence does not share sufficient features with the allegations to fall under the

common plan exception.” Shelby’s bald assertions of error are wholly inadequate to

allow any meaningful analysis of the issue. We therefore find no error as to Shelby under

Evidence Code sections 1101 and 352 concerning the testimony of Tovar and Gerard

about Shelby’s sexual conduct with them while they were wards.



                                              53
       3. Search of Shelby’s Home Computer

       All defendants challenge the admission of evidence that a search of Shelby’s home

computer some time after April 2005 had revealed that Shelby accessed a Web site where

people can arrange to correspond with adult inmates.

       Starmer testified that the search of Shelby’s home computer revealed that the

computer had been used to access the Web site “meetaninmate.com.” The trial court

overruled Shelby’s objections on the grounds of hearsay and Evidence Code sections

352 and 1101. Harper and Ruiz’s objections were overruled on the ground of irrelevance.

Sharmer testified that the Web site was significant to his findings because “[c]learly,

[Shelby] had an attraction for people in custody.”

       As to Harper and Ruiz, we conclude that the evidence was irrelevant because it

was discovered after Shelby had left Stark, and it therefore had no probative value with

respect to notice to Harper and Ruiz of Shelby’s misconduct.

       We agree with Shelby that the evidence was inadmissible under Evidence Code

section 1101 because it did not show conduct sufficiently similar to that alleged by

plaintiffs to establish a common plan; those allegations did not include any use of a

computer.

       4. Starmer’s Conclusions

       Shelby contends the trial court erred under Evidence Code section 1101 in

admitting into evidence Starmer’s conclusions that (1) Shelby had a “modus operandi”

for coercing male Latino wards into having sex with him, (2) Shelby engaged in a



                                            54
seduction pattern, and (3) Starmer was trained to discern the truth, and he believed the

accusers.

       Evidence Code section 1101 permits evidence of prior conduct when relevant to

prove, among other things, that a defendant’s acts were carried out pursuant to a common

plan. Starmer’s conclusions that Shelby’s conduct constituted a modus operandi and a

seduction pattern was admissible for that purpose.

       Starmer’s statements that he was trained, could tell when someone was telling the

truth, and believed the accusers did not fit within Evidence Code section 1101, and

Shelby’s objection on the basis of that statute, was meritless.

G. Irrelevant Evidence Admitted Against Harper and Ruiz

       Harper and Ruiz contend the trial court erred by admitting evidence obtained

during the investigations that followed the February 2004 accusations against Shelby.

       1. Additional Background

       Harper and Ruiz moved in limine to exclude evidence obtained after February 18,

2004, the date the accusations that formed the basis of the current lawsuit surfaced. One

ground for the motions was that such evidence was irrelevant to Harper and Ruiz’s notice

or knowledge of the substantial risk of a constitutional violation by Shelby. The trial

court reserved its ruling on the motion and agreed to conduct a hearing under Evidence

Code section 402 before allowing such testimony.

       Later, in discussing the permissible parameters for opening statements, counsel for

Harper and Ruiz noted that certain items were not to be admitted until that hearing was



                                             55
held. The trial court responded: “We’re not doing a[n Evidence Code section] 402

process. Those are all coming in. You’ll just have to deal with them. [¶] . . . [¶] And

that’s what my ruling was.” Following additional argument, the trial court repeated that

the challenged evidence would be admitted. Thereafter, counsel for Harper and Ruiz

objected on the ground of relevance, among other grounds, when Cantino testified as to

what several wards had told him during the post-February 2004 investigations about

Shelby performing sexual acts with them. The trial court overruled those objections.

       2. Discussion

       A plaintiff in an action based on deliberate indifference of prison officials bears a

heavy burden of establishing that the officials knew of and disregarded a particular

substantial known risk of the constitutional injury that later occurred. (Farmer v.

Brennan (1994) 511 U.S. 825, 847 (Farmer).) Under that standard, information that

became available to officials only after the injury to the plaintiff is irrelevant because it

cannot show the officials’ notice or knowledge of a risk. We thus conclude the trial court

erred in allowing evidence of ward complaints made after February 18, 2004, to be

admitted against Harper and Ruiz.

H. Shelby’s Off-duty Sexual Encounter

       All defendants challenge the admission of evidence that Shelby had an off-duty

sexual encounter with former ward Gerard at a hotel in 2001. The defendants objected to

such evidence on the grounds of hearsay, undue prejudice, prior bad acts, and irrelevance

to establish notice. The trial court agreed that the evidence, discovered after plaintiffs



                                              56
came forward with their accusations, did not provide notice to Harper and Ruiz. The trial

court allowed the evidence “for a narrowly defined issue. That is, that Shelby has gay

sex and he has it with people who are at least former wards.”

       We will assume for purposes of argument that the evidence was inadmissible

under Evidence Code section 1101 because the circumstances of the encounter were not

sufficiently similar to the conduct alleged by plaintiffs to show a common plan.

Specifically, the encounter took place away from Stark after Gerard was no longer a

ward, and the potential for coercion was not present. We further agree with Harper and

Ruiz that the evidence was irrelevant to establish notice because the information became

known only during the 2004 investigation.

I. References to Shelby’s Pretrial Invocation of His Fifth Amendment Privilege

       Shelby contends the trial court committed reversible error in permitting plaintiffs

to raise his pretrial invocation of his Fifth Amendment privilege against self-

incrimination.

       1. Additional Background

       During discovery, Shelby repeatedly asserted his Fifth Amendment privilege

against self-incrimination. Plaintiffs moved in limine to prevent Shelby from testifying at

trial as to those matters for which he had asserted that privilege, and Harper and Ruiz

moved to compel Shelby to testify and to preclude him from asserting the privilege based

on a proposed grant of use immunity. The trial court denied both motions, and later




                                            57
directed counsel for plaintiffs not to refer to the Fifth Amendment in their opening

statements.

       During opening statements, counsel for Ruelas referred to numerous allegations of

misconduct against Shelby and stated: “[I]n the course of this trial, Mr. Shelby’s not

going to deny the truth of a single one. [¶] He has not to date and he will not.” Counsel

for Shelby did not object to those remarks. Shelby had not yet indicated he would

withdraw his Fifth Amendment privilege. However, after opening statements, Shelby’s

counsel indicated that Shelby would indeed testify at trial. The trial court ordered Shelby

to appear for an additional deposition session, and plaintiffs’ counsel deposed Shelby.

       Thereafter, during the examination of Starmer, counsel for Ruelas asked: “[D]id

you attempt to get Mr. Shelby’s statement as to these events?” Over Shelby’s counsel’s

objections under Evidence Code sections 960 and 913, Starmer responded that Shelby

had “maintained his 5th Amendment privilege.”

       Next, during the examination of Shelby under Evidence Code section 776, counsel

for Ruelas asked the following questions, over the objections of Shelby’s counsel:

       (1) “Did you assert your 5th Amendment not to answer questions of Mr. Cantino

about whether you molested the plaintiffs in this case?”

       (2) “Cantino couldn’t talk to you because he did the wards. You refused and took

the 5th Amendment to Agent Starmer, correct?”

       (3) “Is it true, sir, that every single question propounded to you on the subject of

whether you molested the plaintiffs in this case, up through the first day of this trial, you



                                              58
asserted the 5th Amendment, your right against criminal prosecution? Refused to answer

every question?”

       (4) “You waited until the statute of limitations for criminal prosecution expired

and then you said you wanted to testify; isn’t that correct?”

       Shelby responded that he had acted on his attorney’s advice.

       Out of the presence of the jury, Shelby’s counsel moved for a mistrial. The trial

court stated: “I thought the record showed we were going to allow him to at least go into

that because of the circumstances where you, after opening statement, now tell us that

he’s going to waive the 5th Amendment, he’s going to testify, after they’d already

concluded discovery.” Counsel for Ruelas argued that he would have been prejudiced if

he had not been allowed to raise the Fifth Amendment issue after mentioning it in

opening statement before Shelby decided to waive the privilege. The trial court denied

the request for mistrial.

       Counsel for Shelby later requested a jury admonishment or limiting instruction

based on Evidence Code section 913, subdivision (b). The court stated such an

instruction would be appropriate later but declined to read the instruction at that time.

The trial court instructed the jury at the close of trial: “‘You have heard testimony that

prior to trial, James Shelby has exercised his legal right not to testify concerning certain

matters. Do not draw any conclusions from the exercise of this right or let it affect any of

your decisions in this case. [¶] A party may exercise this right freely and without fear of

a penalty.’”



                                             59
       2. Analysis

       California law makes no distinction between civil and criminal litigation

concerning the impermissibility of drawing adverse inferences from a witness’s

invocation of the privilege against self-incrimination. (People v. Holloway (2004) 33

Cal.4th 96, 131-132.) Evidence Code section 913 provides: “(a) If in the instant

proceeding or on a prior occasion a privilege is or was exercised not to testify with

respect to any matter, or to refuse to disclose or to prevent another from disclosing any

matter, neither the presiding officer nor counsel may comment thereon, no presumption

shall arise because of the exercise of the privilege, and the trier of fact may not draw any

inference therefrom as to the credibility of the witness or as to any matter at issue in the

proceeding. [¶] (b) The court, at the request of a party who may be adversely affected

because an unfavorable inference may be drawn by the jury because a privilege has been

exercised, shall instruct the jury that no presumption arises because of the exercise of the

privilege and that the jury may not draw any inference therefrom as to the credibility of

the witness or as to any matter at issue in the proceeding.”

       We first observe that with respect to Ruelas’s counsel’s remarks during opening

statement, Shelby forfeited any claim of error by failing to raise a timely objection. (See

Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 860 [Fourth Dist., Div. Two].)

       Next, Shelby’s conduct in deciding to waive his privilege only after opening

statements and after the close of discovery smacks of the conduct condemned in A & M

Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, in which the court stated: “[T]he



                                             60
enactment of the Discovery Act of 1957 was intended to take the ‘game element’ out of

trial preparation and do away with surprise at trial. [Citation.] The accomplishment of

this purpose compels the court to prevent a litigant claiming his constitutional privilege

against self-incrimination in discovery and then waiving the privilege and testifying at

trial. Such a strategy subjects the opposing party to unwarranted surprise. A litigant

cannot be permitted to blow hot and cold in this manner.” (Id. at p. 566.) Under that

case, the trial court could have precluded Shelby from testifying about matters as to

which he had previously claimed the privilege. Instead, the trial court allowed plaintiffs

to depose him before his testimony. Moreover, at trial, Shelby explained his pretrial

invocation of the privilege as having been based on instruction of his counsel.

       Even if we assume error in allowing questions about the invocation of the

privilege, the trial court did instruct the jury in accordance with Evidence Code section

913, subdivision (b), that it could not use Shelby’s invocation of the privilege to draw

adverse conclusions against him. We presume the jury understood and followed the trial

court’s limiting instruction. (Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797, 808.)

       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



                                             61
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.

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



                                             62
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.”

       2. Analysis

       Shelby first argues that the proffered evidence was not hearsay because the

statements “constituted ‘operative facts’ that had independent significance.” The hearsay

rule is not implicated when the words themselves are operative facts and an issue in the

case is whether they were uttered or written. (Am-Cal Investment Co. v. Sharlyn Estates,

Inc. (1967) 255 Cal.App.2d 526, 541.) Here, we agree the statements were not hearsay

because they were offered to show the bias of the speaker. (See, e.g., Weathers v. Kaiser

Foundation Hospitals (1971) 5 Cal.3d 98, 109.) Nonetheless, we disagree that the trial

court abused its discretion by excluding those statements because considerable other

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

anonymous wards said Delgado had made up his complaint in order to be moved to

another company.




                                            63
       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

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



                                               64
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

and she had sexual relations around 30 times; and that Ruelas did not have any sexual

performance problems when he was with her.




                                              65
              (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.

              (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,



                                             66
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

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.”




                                            67
       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.”

       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



                                              68
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.

       (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.



                                             69
(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

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



                                              70
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?”

       (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?”




                                            71
        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.)

        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



                                              72
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.

       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

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.




                                              73
       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.)

       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).)




                                              74
       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

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



                                              75
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)

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.)




                                             76
                  (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

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.)



                                             77
       “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

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.



                                             78
      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. 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-

Valles, and Walker. 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.



                                           79
       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,

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,

No. Civ. S-07-0252 GEB EFB P) 2009 U.S.Dist. Lexis 19715, at page *21 (granting



                                             80
summary judgment to the prison supervisor because the plaintiff failed to allege sufficient

details, “[i]nsofar as he suggests that [the guard] had a pattern and practice of abusing

prisoners such that maintaining him in any position where he would have contact with

prisoners would constitute deliberate indifference,” and he failed to offer evidence of the

guard’s prior conduct or the supervisor’s knowledge of it); (2) Daniels v. Delaware

(D.Del. 2000) 120 F.Supp.2d 411 at page 420 (allegations of sexual misconduct that were

investigated and found to be unsubstantiated were insufficient to establish supervisor

liability); and (3) Sauceda v. Dailey (D.Kan., June 12, 1998, No. 97-2278-JWL) 1998

U.S.Dist. Lexis 11460, at pages *38-*39, and footnote 8 (prior complaints about an

officer that were investigated and resolved in favor of the officer were insufficient to

establish a county’s deliberate indifference; the plaintiff did not argue that the

investigations had been inadequate).

       Although we find Brooks and the other cases cited helpful, they are not dispositive

because they are distinguishable on several bases. First, unlike in Brooks, evidence in the

instant case showed that certain allegations had not been fully investigated or found to be

lacking in merit. Most significantly, the investigator initially determined that the Tovar

and Beck-Rivera allegations should be sustained, and Shelby’s termination had been

recommended on the basis, at least in part, of these allegations. Moreover, the grievance

filed by ward Tanori was terminated when Tanori was paroled, and the record does not

show that any investigation had taken place. Delgado’s grievance was denied on the

basis of a preliminary inquiry report; no IA investigation was conducted, even though



                                              81
Delgado’s allegations bore remarkable similarity to Tovar’s allegations. Johnson’s

grievance was summarily denied without investigation on the basis that it was based on

hearsay.

       Second, in the present case, the OIG had specifically raised concerns about the

handling of prior claims of Shelby’s sexual misconduct and recommended more stringent

examination of such claims.

       Third, in the present case, the nature of the complaints was independently

significant. While the evidence showed that ward grievances were common, the evidence

was also undisputed that complaints alleging homosexual conduct by a male staff

member against a male ward were exceedingly rare. As recounted, ante, plaintiffs’

expert Cohn testified that juvenile wards rarely complain about homosexual behavior on

the part of staff. He explained that wards are intimidated in an institution and are

embarrassed about homosexual behavior. Cohn stated: “So it’s not uncommon when

something like this does occur they would hold that information and don’t report it

because they don’t want to be accused of being gay, especially if they’re not gay.”

Similarly, defense expert Izaguirre agreed that in his experience, “allegations of

homosexual contact between wards and staff was a very, very rare thing, if it ever

occurred at all.” Harper conceded that it was unusual for a male ward to allege that a

male staff member had been sexually abusive to him. In his experience as director, he

had learned of six to 10 allegations of sexual misconduct between staff and wards, but the

only ones that involved a male staff member and a male ward pertained to Shelby.



                                             82
Moreover, Shelby was the only employee, out of approximately 5,400 employees in the

CYA, who had three or more allegations of sexual misconduct made against him.

       Ruiz did not believe he had ever discussed Shelby’s fitness as an employee with

Harper. Harper conceded he had the authority to remove Shelby from contact with wards

even if other impediments prevented him from terminating Shelby’s employment. Ruiz

could also do so in an emergency.

       We first conclude that the evidence against Harper and Ruiz satisfied Farmer’s

requirement of objective evidence that there was a strong likelihood or “substantial risk”

that Shelby would sexually assault wards. (Farmer, supra, 511 U.S. at pp. 842-844.)

       With respect to the requirement of actual knowledge, we conclude that the

evidence was sufficient to establish that both Harper and Ruiz must have known of that

substantial risk and, therefore, had actual knowledge that Shelby posed a substantial

danger of coercing wards at Stark to participate in sexual acts. While Harper and Ruiz

argue extensively that Tovar’s allegations, the October 3, 2000, OIG report, and other

evidence were not credible, under the standard governing our review, we “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, supra, 16 Cal.4th at p. 1053.) Plaintiffs presented no direct evidence that

either Harper or Ruiz actually believed there was a substantial risk of Shelby seriously

harming wards; the direct evidence was to the contrary. Harper testified that after

reading the October 3, 2000, OIG report, he concluded there was not enough evidence to



                                               83
believe Shelby had engaged in any sexual misconduct with Tovar. Ruiz also testified that

he never believed Shelby posed any substantial risk of seriously harming wards.

However, the trier of fact was free to disregard or disbelieve their testimony. Also,

Harper testified that after he received the October 3, 2000, OIG report, he made special

arrangements with Ruiz to meet Shelby inconspicuously so he could see what Shelby

“looked like.” The jury could reasonably infer from such curiosity that Harper had

concerns about whether Shelby posed a risk of harming wards.

       We likewise conclude the same: The evidence summarized, ante, was sufficient to

establish the element of subjective awareness. In Farmer, the court explained: “[A]

factfinder may conclude that a prison official knew of a substantial risk from the very fact

that the risk was obvious . . . ‘so that a reasonable man would realize it, we might well

infer that [the defendant] did in fact realize it; but the inference cannot be conclusive, for

we know that people are not always conscious of what reasonable people would be

conscious of.’” (Farmer, supra, 511 U.S. at p. 842.) In Gonzales v. Martinez (10th Cir.

2005) 403 F.3d 1179, for example, the court held that evidence of prior nonsexual

physical assaults, lapses in jail security, and sexual harassment and intimidation by

guards was sufficient to support a reasonable inference that a sheriff was aware of the

risk of sexual assault on female inmates. (Id. at p. 1187.)

       In Mitchell v. Rappahannock Regional Jail Authority (E.D.Va. 2010) 703

F.Supp.2d 549, 561, the court held that allegations that prison officials had received prior

oral and written reports from a correction officer that a guard had been “‘messing



                                              84
around’” with the plaintiff, but that the prison officials had done nothing in response,

were sufficient to state a complaint against the officials when the plaintiff was sexually

assaulted by the guard after those reports.

              (b) Sufficiency of Evidence of Causation

       Harper and Ruiz contend the evidence was insufficient to establish the causation

element of plaintiffs’ claims.

       A plaintiff who seeks to hold a prison official liable for a deliberate indifference

claim under the Eight Amendment must establish that the official’s conduct caused the

injury. (See Martinez v. California (1980) 444 U.S. 277, 285.) “The inquiry into

causation must be individualized and focus on the duties and responsibilities of each

individual defendant whose acts or omissions are alleged to have caused a constitutional

deprivation. [Citations.]” (Leer v. Murphy (9th Cir. 1988) 844 F.2d 628, 633.)

       In raising the argument that evidence of causation was insufficient, Harper and

Ruiz fail to discuss any evidence that supported plaintiffs’ claims, including any mention

of the evidence of the acts on which those claims were based. Rather, they merely state

that “there was insufficient evidence of a causal link between [their] conduct and the

injuries alleged by respondents to support a judgment against either of them.” A

defendant seeking to overturn a judgment on the ground of insufficient evidence bears the

responsibility of setting forth all the evidence bearing on the issue in the light most

favorable to the judgment. (Myers v. Trendwest Resorts, Inc., supra, 178 Cal.App.4th at




                                              85
p. 749.) Having failed to do so, Harper and Ruiz have forfeited their claim that evidence

of causation was insufficient.

       We conclude that the evidence was sufficient to establish plaintiffs’ claims based

on deliberate indifference.

              (c) Sufficiency of Evidence of Deficient Policy

       A prison official may be liable under section 1983 for implementing a cruel and

unusual policy or for failing to correct a condition with an appropriate policy. (Iqbal,

supra, 556 U.S. at p. 676; Beers-Capitol v. Whetzel (3d Cir. 2001) 256 F.3d 120, 134-

135.) “The deliberate indifference claims implicating supervisors for their deficient

policies are more complicated than the other, more direct deliberate indifference claims,

because the former add another level to the analysis.” (Beers-Capitol v. Whetzel, supra,

at p. 133.) “[T]o hold a supervisor liable because his policies or practices led to an

Eighth Amendment violation, the plaintiff must identify a specific policy or practice that

the supervisor failed to employ and show that: (1) the existing policy or practice created

an unreasonable risk of the Eighth Amendment injury; (2) the supervisor was aware that

the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4)

the injury resulted from the policy or practice.” (Id. at p. 134.)

       As Harper and Ruiz point out, the trial court never required plaintiffs to identify

the specific policy on which they based their claim of cruel and unusual policy. The trial

court’s instructions on that claim were defective.




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P. Qualified Immunity

         Harper and Ruiz argue that they were entitled to qualified immunity because

plaintiffs failed to establish their conduct violated clearly established federal

constitutional or statutory law of which a reasonable person would have known.

         1. Additional Background

         Harper and Ruiz requested a separate trial on the issue of qualified immunity. The

trial court denied the motion. At the close of trial, Harper and Ruiz again raised the issue

in a motion for directed verdict, but the trial court denied that motion as well.

         2. Standard of Review

         “The issue of whether qualified immunity exists is ultimately one of law for the

trial court. [Citation.] Disputes of historical fact relevant to the issue, however, must be

decided by a jury. [Citations.]” (Wood v. Emmerson (2007) 155 Cal.App.4th 1506,

1515.)

         3. Analysis

         Public officials are entitled to qualified immunity for their actions unless the

plaintiff shows that their conduct violated clearly established federal constitutional or

statutory law of which a reasonable person would have known. (Anderson v. Creighton

(1987) 483 U.S. 635, 639.) In determining whether an official is entitled to qualified

immunity, the court determines: (1) whether a constitutional right was violated, taking

the alleged facts in the light most favorable to the injured party; and (2) whether the law

was clearly established when the violation occurred. (Saucier v. Katz (2001) 533 U.S.



                                               87
194, 200-201, overruled in part by Pearson v. Callahan (2009) 555 U.S. 223, 227.) “The

relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted. [Citation.]” (Saucier v. Katz, supra, at p. 202.)

       “Since public officials exercising discretionary powers may sometimes abuse their

discretion, the immunity is qualified, rather than absolute, so that civil damages can serve

as a restraint. At the same time, the immunity incorporates a recognition that ‘claims

frequently run against the innocent as well as the guilty—at a cost not only to the

defendant officials, but to society as a whole.’ [Citation.] While unproductive societal

costs may be unavoidable in a system that relies on private litigation as one means to

enforce our constitutional norms, the aim of qualified immunity is to limit those costs to

the greatest practical degree. We do not want to let the threat of litigation and personal

liability ‘deter[] . . . able citizens from acceptance of public office[,]’ nor do we want to

‘dampen the ardor of all but the most resolute, or the most irresponsible public officials,

in the unflinching discharge of their duties.’ [Citation.] Hence, ‘[t]his immunity is broad

in scope and protects “all but the plainly incompetent or those who knowingly violate the

law.”’ [Citations.]” (Curley v. Klem (3d Cir. 2007) 499 F.3d 199, 206.)

       Ordinarily, courts look to prior case law to determine whether the contours of the

right have been defined at a level sufficiently clear to give notice to a reasonable official.

Although this does not require that the specific action in question was previously held

unlawful, clearly established law may not be defined “at a high level of generality.”



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(Ashcroft v. al-Kidd (2011) ___ U.S. ___ [131 S.Ct. 2074, 2084].) Nonetheless, “general

statements of the law are not inherently incapable of giving fair and clear warning, and

. . . a general constitutional rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question . . . .” (U.S. v. Lanier (1997) 520 U.S.

259, 271.) And “some conduct is so obviously contrary to constitutional norms that even

in the absence of case law, the defense of qualified immunity does not apply.” (Skrtich v.

Thornton (11th Cir. 2002) 280 F.3d 1295, 1305, fn. 9.)

       In Schwenk v. Hartford (9th Cir. 2000) 204 F.3d 1187, the court stated: “A sexual

assault on an inmate by a guard—regardless of the gender of the guard or of the

prisoner—is deeply ‘offensive to human dignity.’” (Id. at p. 1197.) In Farmer, the court

stated: “Being violently assaulted in prison is simply not ‘part of the penalty that

criminal offenders pay for their offenses against society.’” (Farmer, supra, 511 U.S. at

p. 834.) “As a result, in Farmer, the Supreme Court held that prison officials may be

held liable under the Eighth Amendment for the rape of a transsexual inmate by another

inmate if the officials knew that the victim faced a substantial risk of serious harm and

they disregarded that risk by failing to take reasonable measures to abate it. [Citation.]

Thus, the shield that qualified immunity provides is limited to those officials who are

either unaware of the risk or who take reasonable measures to counter it.” (Schwenk v.

Hartford, supra, at p. 1197.) While the current case does not involve a violent assault,

the reasoning of Farmer and Schwenk is equally applicable.




                                             89
       Harper and Ruiz argue that it was not a settled issue whether sexual conduct

between CYA staff and wards violated the wards’ civil rights. They contrast Carrigan v.

Davis (D.Del. 1999) 70 F.Supp.2d 448 at pages 452-453 (concluding that as a matter of

law, fellatio between a prison inmate and guard, even if consensual, was a per se

violation of the 8th Amend.) with Graham v. Sheriff of Logan County (10th Cir. 2013)

741 F.3d 1118 at page 1125 (noting that it was a matter of first impression in the 10th

Cir. whether consent could be a defense to an 8th Amend. claim based on sexual acts, and

that other courts were divided in their approach to the issue).

       However, plaintiffs’ complaints alleged, and the evidence showed, that Shelby’s

sexual conduct was coercive, not consensual, and that it included substantial sexual

contact. We therefore reject the contention that the law was unsettled on the issue of

whether such conduct violated constitutional rights.

       In Qasem v. Toro (S.D.N.Y. 2010) 737 F.Supp.2d 147, the court rejected qualified

immunity for prison officials. The court explained: “It is well established that the sexual

exploitation of prisoners by prison guards amounts to a constitutional violation.

[Citations.] Given the extent of the alleged sexual abuse, the numerous warning signs

alleged, and the number of questionable—if not unintelligible—decisions made with

respect to plaintiff during the course of the [Inspector General’s] investigation, the Court

cannot say at this stage of the litigation that [the officials] are entitled to qualified

immunity for their alleged actions.” (Id. at pp. 153-154.)




                                               90
       In Hope v. Pelzer (2002) 536 U.S. 730 at pages 741-742, a majority of the court

concluded that the defendants were not entitled to qualified immunity on the ground that

case law, a state regulation, and a department of justice report, should have made it

obvious to a reasonable official that the conduct was unconstitutional. Here, a California

statute proscribes sexual activity between a peace officer and a confined person: “An

employee or officer of a public entity detention facility, . . . who engages in sexual

activity with a consenting adult who is confined in a detention facility is guilty of a public

offense.” (Pen. Code, § 289.6, subd. (a)(2).) The proscribed sexual activity includes

sodomy, oral copulation, and masturbation (id., subd. (d)), and the consent of the

confined person is not a defense (id., subd. (e)). As noted, the jury found that none of the

plaintiffs consented to sexual activity with Shelby.

       We conclude that the trial court did not err in denying Harper and Ruiz’s qualified

immunity claims.

Q. Jury Instructions

       Harper and Ruiz contend that the trial court erred in failing to give their proposed

special instructions on alter ego liability, negligence, and the elements of the failure to

protect and failure to adopt policies and practices claims. They further argue that the trial

court erred in failing to instruct on the deference required to be given to prison officials’

judgment.




                                              91
       1. Standard of Review

       We apply de novo review to claims of instructional error. (Mansur v. Ford

Motor Co. (2011) 197 Cal.App.4th 1365, 1373 [Fourth Dist., Div. Two].) In reviewing

challenges to jury instructions, “we consider the jury instructions ‘as a whole.’” (Cristler

v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 83.) The trial court

discharges its duty to instruct the jury “if its instructions embrace all points of law

necessary to a decision.” (Thompson Pacific Construction, Inc. v. City of Sunnyvale

(2007) 155 Cal.App.4th 525, 553.)

       “[T]here is no rule of automatic reversal or ‘inherent’ prejudice applicable to any

category of civil instructional error, whether of commission or omission. A judgment

may not be reversed for instructional error in a civil case ‘unless, after an examination of

the entire cause, including the evidence, the court shall be of the opinion that the error

complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)”

(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) Instructional error is

prejudicial when it seems probable that the error affected the verdict. (LeMons v. Regents

of University of California (1978) 21 Cal.3d 869, 875.) The determination of prejudice

“depends heavily on the particular nature of the error, including its natural and probable

effect on a party’s ability to place his full case before the jury. [¶] . . . [W]hen deciding

whether an error of instructional omission was prejudicial, the court must also evaluate

(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s




                                              92
arguments, and (4) any indications by the jury itself that it was misled.” (Soule v.

General Motors Corp., supra, at pp. 580-581, fn. omitted.)

       1. Instructions Given on Failure to Protect

       Special instruction No. 3, which was read to the jury, stated: “Prison officials

have a duty to protect incarcerated wards from sexual abuse. In this case, plaintiffs claim

that defendants Jerry Harper and/or Xavier Ruiz violated the 8th Amendment to the

United States Constitution by showing deliberate indifference to a substantial risk of

serious harm to plaintiffs. [¶] In order to establish his claim for violation of the 8th

Amendment, each plaintiff must prove each of the following three things by a

preponderance of the evidence: [¶] First, there was a substantial risk of serious harm to

plaintiff, namely a substantial risk that James Shelby would coerce wards into sexual

acts; [¶] Second, defendants Jerry Harper and/or Xavier Ruiz were deliberately

indifferent to that risk; [¶] Third, plaintiff . . . would not have been subjected to James

Shelby’s sexual abuse if defendants Jerry Harper and/or Xavier Ruiz had not been

deliberately indifferent. [¶] . . . [¶] I will now proceed to give you more details on the

second of these three requirements. [¶] To show deliberate indifference, plaintiff must

show that defendants Jerry Harper and/or Xavier Ruiz knew of a substantial risk that

plaintiff would be coerced into sex, and that the defendant(s) disregarded that risk by

failing to take reasonable measures to deal with them. [¶] Plaintiffs must show that

defendants Jerry Harper and/or Xavier Ruiz actually knew of the risk. Plaintiffs need not

prove that the defendant or defendants knew precisely defendant James Shelby would



                                             93
coerce wards into sex so long as plaintiffs show that defendants . . . Jerry Harper and

Xavier Ruiz knew there was an obvious and substantial risk to plaintiffs of such. [¶] . . .

[¶] That [a] prison official knew of facts that he strongly suspected to be true and those

facts indicated a substantial risk of harm to an inmate, the official cannot escape liability

merely because he refused to take the opportunity to confirm those facts. [¶] . . . [¶]

But keep in mind that mere carelessness or negligence is not enough to make an official

liable. It is not enough for plaintiffs to show that a reasonable person would have known

or that defendants Jerry Harper and/or Xavier Ruiz should have known of the risk to the

plaintiffs. Plaintiffs must show that the defendant or defendants actually knew of the

risk. [¶] If plaintiffs prove that there was a risk of serious harm to them, and that the risk

was obvious, you are entitled to infer from the obviousness of the risk that defendants

Jerry Harper and/or Xavier Ruiz knew of the risk. [¶] However, defendants Jerry Harper

and/or Xavier Ruiz claim that even if there was an obvious risk, he was unaware of the

risk. [¶] If you find that either defendant Jerry Harper and/or Xavier Ruiz was unaware

of the risk, then you must find that he was not deliberately indifferent.”

       3. Requested Instruction on Alter Ego Liability

       Harper and Ruiz proposed special instruction No. 4, as follows: “The liability of

each defendant must be proved individually and merely finding any one defendant liable

to any Plaintiff is not sufficient to hold any other defendant liable to that Plaintiff. [¶]

Defendants Harper and Ruiz are sued in this case as individuals. They are not the alter

ego of the State of California and the State is not a party in this case. Defendants Harper



                                              94
and Ruiz are not responsible for the acts of employees of the California Youth Authority

simply because they held supervisory positions in that organization, although they are

personally responsible for their own acts and omissions. [¶] Similarly, admissions and

opinions of other employees of the California Youth Authority or the State of California

are not to be deemed to be admissions binding on Defendants Harper and Ruiz.” The

trial court refused the requested instruction.

        In actions under section 1983, supervisory officials are not liable for the

unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious

liability; rather, they are liable based only on their own personal knowledge and actions,

not the knowledge and actions of others. (Farmer, supra, 511 U.S. at pp. 842-843.)

Harper and Ruiz argue that in the absence of the requested instruction, the instructions

given failed to adequately instruct the jury that it must find personal knowledge as a basis

for their liability.

        While the trial court did not explicitly instruct the jury that respondeat superior

principles could not form the basis for Harper’s or Ruiz’s liability, the instructions given

repeatedly emphasized the requirement of personal knowledge. In special instruction

No. 3, the trial court informed the jury that plaintiffs had to show that Harper and Ruiz

“knew of a substantial risk . . . and . . . disregarded that risk by failing to take reasonable

measures”; and that they “actually knew of the risk.” The special verdict forms required

the jury to find that Harper and Ruiz each “kn[e]w the conditions created a substantial

risk of serious harm and/or sexual abuse and disregard[ed] that risk by failing to take



                                                 95
reasonable measures to correct it.” We conclude the trial court’s instructions adequately

conveyed to the jury that it must find personal knowledge as a basis for liability of Harper

and Ruiz.

       4. Requested Instructions on Subjective Belief and Actual Belief

       Harper and Ruiz contend that the trial court failed to instruct the jury adequately

on the subjective belief element of the failure to protect claim. They assert the trial

court’s instructions did not separately identify the subjective belief component of a

deliberate indifference claim against prison officials.

       Harper and Ruiz proposed special instruction No. 13, as follows: “The second

element which Plaintiffs must prove in order to show that Defendant Jerry Harper or

Defendant Xavier Ruiz was deliberately indifferent in a failure to protect the Plaintiffs is

that the given defendant personally believed that there was a substantial risk that

Defendant James Shelby would force sex on wards.”

       Harper and Ruiz further proposed special instruction No. 16, as follows:

“However, even if you find that the risk was obvious, Defendant Jerry Harper or

Defendant Xavier Ruiz may still be able to show that they still did not actually believe

that it existed; for example, they might show 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 not substantial.”




                                             96
       The trial court denied special instruction No. 13, stating: “I don’t think they have

to personally believe that the allegations are true.” The trial court also denied special

instruction No. 16.

       As discussed, ante, “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.) Here, the instructions given repeatedly set forth the requirement of personal

knowledge. With regard to actual belief, the trial court instructed the jury that Harper

and Ruiz claimed “that even if there was an obvious risk, he was unaware of the risk,”

and if the jury found that if either was unaware of the risk, the jury had to find he was not

deliberately indifferent. That instruction adequately conveyed to the jury that it must find

subjective belief.

       We further note proposed special instruction No. 13 (as well as other proposed

instructions) misstated the law to the extent it would have required the jury to find a risk

of forced rather than coerced sex. The trial court may reject a requested instruction that

contains incorrect statements of law. (Levy-Zentner Co. v. Southern Pac. Transportation

Co. (1977) 74 Cal.App.3d 762, 782.)




                                             97
         5. Requested Instruction on Negligence

         Harper and Ruiz proposed special instruction No. 5A, as follows: “The Plaintiffs

have no claim against either Defendant Harper or Defendant Ruiz for negligence, and you

may not base a judgment against either Defendant Harper or Defendant Ruiz upon any

allegation or finding that they acted negligently or unreasonably. [¶] You may find

either of such defendants liable in this case only if you find that they were deliberately

indifferent according to the instructions I am about to give you.”

         The trial court refused that instruction and instead instructed the jury: “That [a]

prison official knew of facts that he strongly suspected to be true and those facts

indicated a substantial risk of harm to an inmate, the official cannot escape liability

merely because he refused to take the opportunity to confirm those facts. [¶] . . . [¶]

But keep in mind that mere carelessness or negligence is not enough to make an official

liable. It is not enough for plaintiffs to show that a reasonable person would have known

or that defendants Jerry Harper and/or Xavier Ruiz should have known of the risk to the

plaintiffs. Plaintiffs must show that the defendant or defendants actually knew of the

risk.”

         A prison official’s liability on a claim under section 1983 may not be based on

negligence, but requires a showing of intentional, knowing, or reckless conduct.

(Farmer, supra, 511 U.S. at p. 834.) The trial court’s instruction adequately stated the

law on that issue.




                                               98
       Moreover, the proposed instruction was not an accurate statement of the law in

that it posits that Harper’s and Ruiz’s liability could not be based “upon any allegation or

finding that they acted . . . unreasonably.” As so stated, the proposed instruction in effect

reversed the requirement that to find liability, the jury must determine that defendants

failed to take reasonable measures to deal with a known risk, among other elements as set

forth in Farmer. The trial court may reject a requested instruction that contains incorrect

statements of law. (Levy-Zentner Co. v. Southern Pac. Transportation Co., supra, 74

Cal.App.3d at p. 782.)

       6. Requested Instruction on Constraints on Officials’ Authority

       Harper and Ruiz proposed special instruction No. 21, as follows: “If you find that

Defendant Jerry Harper or Defendant Xavier Ruiz failed to act in response to such a risk,

but could not have acted to avert due to a lack of authority or ability to do so, you cannot

find that they consciously disregarded the risk.” Harper and Ruiz argued that the Public

Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) and the

memorandum of understanding that governed CYA employees’ rights precluded Harper

and Ruiz from firing Shelby. The trial court denied the instruction, stating: “But I don’t

think an MOU or civil service protections are violation of the law.”

       Harper and Ruiz argue that the proposed instruction was based on Williams v.

Bennett (11th Cir. 1982) 689 F.2d 1370, 1384, in which the court stated: “There can be

no duty, the breach of which is actionable, to do that which is beyond the power,

authority, or means of the charged party. One may be callously indifferent to the fate of



                                             99
prisoners and yet not liable for their injuries. Those whose callous indifference results in

liability are those under a duty—possessed of authority and means—to prevent the

injury.”

       While the trial court’s instruction did not explicitly address the issue, it did set

forth the requirement that to be found liable, the jury had to find that defendants

disregarded a known risk by failing to take reasonable measures. Implicit in the

requirement of reasonableness is that the defendants had authority and ability to take

particular measures.

       Moreover, “[i]nstructions are to state rules of law in general terms and avoid

reciting matters of evidence. Instructions that unduly emphasize issues or theories, either

by singling them out or making them unduly prominent, are improper.” (Santillan v.

Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 725-726.) The proposed

instruction arguably violated this rule because it highlighted an aspect of Harper and

Ruiz’s evidentiary theory, i.e., that they acted reasonably because official constraints on

their authority precluded other action.

       7. Instruction Given on Policies and Practices Claim

       The trial court instructed the jury in special instruction No. 7 that Harper and Ruiz

could be held liable for the “adoption of policies and practices or failure to adopt policies

and practices which caused [a] risk [that Shelby would coerce wards into sex] to exist,”

and stated: “As described elsewhere in these instructions, there are several particular




                                             100
elements which you must find in order to find that either defendant Jerry Harper . . . [¶]

. . . or defendant Xavier Ruiz was deliberately indifferent under either of these theories.”

       8. Requested Instructions on Policies and Practices Claim

       Harper and Ruiz proposed special instruction No. 26, as follows: “The third

element that must be established in order for you to find that either Defendant Jerry

Harper or Defendant Xavier Ruiz was deliberately indifferent with respect to their

policies or practices is that the policy in question created a substantial risk that Defendant

James Shelby would force wards into sex.” The trial court agreed to give that instruction

with modifications.

       Harper and Ruiz submitted a modified special instruction No. 26, as follows: “In

order for you to find that either Defendant Jerry Harper or Defendant Xavier Ruiz was

deliberately indifferent with respect to their policies or practices, you must find that the

policy in question created a substantial risk that Defendant James Shelby would force

wards into sex.” However, the trial court failed to read it to the jury.

       Harper and Ruiz proposed special instruction No. 27, as follows: “The fourth

element that must be established in order for you to find that either Defendant Jerry

Harper or Defendant Xavier Ruiz was deliberately indifferent with respect to their

policies or practices is that the defendant in question personally believed that such policy

created a substantial risk that Defendant James Shelby would force wards into sex.” The

trial court refused the proposed instruction.




                                             101
       Harper and Ruiz proposed special instruction No. 28, as follows: “The fifth

element that must be established in order for you to find that either Defendant Jerry

Harper or Defendant Xavier Ruiz was deliberately indifferent with respect to their

policies or practices is that the defendant in question consciously disregarded the risk

which the defendant believed existed.” The trial court refused the proposed instruction

on the ground it was covered in another instruction.

       Harper and Ruiz proposed special instruction No. 29, as follows: “In order to find

that either Defendant Jerry Harper or Defendant Xavier Ruiz consciously disregarded the

risk created by his policy or practice, you must find that the defendant in question was

aware of a pattern of sexual assaults being committed by his employee or that the risk of

such harm was so great and obvious that the failure of such defendant to respond will

alone support the finding that such defendant consciously disregarded the risk.” The trial

court refused the proposed instruction on the ground it was covered by other instructions.

       Harper and Ruiz proposed special instruction No. 31, as follows: “The sixth

element that must be established in order for you to find that either Defendant Jerry

Harper or Defendant Xavier Ruiz was deliberately indifferent with respect to their

policies or practices is that the defendant in question’s actions or omissions with

conscious disregard was the cause of the Plaintiff in question being forced into sex by

Defendant James Shelby.” The trial court refused the proposed instruction.

       Harper and Ruiz also requested that the special verdict form include each of the

elements of the cruel and unusual policy claim. The trial court denied the request.



                                            102
       We first note that modified proposed special instruction No. 26 did not differ in

any material respect from the initial proposed instruction; rather, it merely omitted the

statement that the instruction addresses the third element. Nonetheless, the trial court’s

instructions failed to identify the elements of a claim based on policies and practices.

Although in special instruction No. 7 the trial court stated that the particular elements of

the claim were described elsewhere in the instructions, Harper and Ruiz complain that the

trial court never described the additional elements of the policy claim or gave any further

instruction on the issue. We agree that the trial court erred in this regard. We believe the

error harmless, however.

       As previously noted, there are two alternative theories by which plaintiffs can

establish “deliberate indifference” on the part of Harper and Ruiz.

       For a prison official to be found deliberately indifferent under a failure to protect

theory, the plaintiff must prove that: (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 inference; and (3) the official

consciously or recklessly disregarded the risk. (Farmer, supra, 511 U.S. at pp. 836-840,

846-847.)

       “[T]o hold a supervisor liable [for deliberate indifference] because his policies or

practices led to an Eighth Amendment violation, the plaintiff must identify a specific

policy or practice that the supervisor failed to employ and show that: (1) the existing

policy or practice created an unreasonable risk of the Eighth Amendment injury; (2) the



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supervisor was aware that the unreasonable risk was created; (3) the supervisor was

indifferent to that risk; and (4) the injury resulted from the policy or practice.” (Beers-

Capitol v. Whetzel, supra, 256 F.3d at p. 134, italics added.)

       Looking initially to the first alternative, and as already discussed, there was

substantial evidence to support a finding of liability on the “failure to protect” theory.

Further, the jury was properly instructed on the “failure to protect theory.” Most

importantly, the jury was told that “[t]o show deliberate indifference, plaintiff must show

that defendants Jerry Harper and/or Xavier Ruiz knew of a substantial risk that plaintiff

would be coerced into sex, and that the defendants disregarded that risk by failing to take

reasonable measures to deal with them.”

       As to the second manner of establishing deliberate indifference “because of

policies or practices,” there was virtually no evidence to support a verdict; further, the

jury was, in essence, not instructed on the theory. The only reference to “policies or

practices in the instructions was as follows: “In order to find defendant James [sic]

Harper or Xavier Ruiz liable . . . you must find that such defendant was deliberately

indifferent to a certain type of risk of misconduct by defendant James Shelby . . . under

two alternative theories. [¶] Either, one, a failure by the given defendant to protect

plaintiffs from risks—from a risk which defendant James Shelby posed to force wards

into sex, or; [¶] The given defendant’s adoption of policies and practices or failure to

adopt policies and practices which caused such risk to exist. [¶] As described elsewhere

in these instructions, there are several particular elements which you must find in order to



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find that either defendant Jerry Harper — [¶] . . . —or defendant Xavier Ruiz was

deliberately indifferent under either of these theories.” (Italics added.)

        Based on the fact that there was little to no evidence on “policies or practices,” and

the jury was, in essence, not instructed on the theory, it would appear clear that the jury

did not rest its verdict on this theory. Additionally, one need look no further than the

special verdict, to know that the failure to completely instruct on “policies and practices”

was harmless. The special verdict returned by the jury dealt only with the “failure to

protect” theory. There was no reference in the verdict form to any of the elements on the

“policies and practices” alternative. The pertinent questions on the special verdict forms

were:

        “4. Was plaintiff [name] imprisoned under conditions that exposed him to a

substantial risk of serious harm and/or sexual abuse?”

        “5. Did defendant [Harper/Ruiz] know the conditions created a substantial risk of

serious harm and/or sexual abuse and disregard that risk by failing to take reasonable

measures to correct it?”

        “6. Was defendant [Harper/Ruiz]’s conduct a substantial factor in causing harm to

plaintiff [name]?”

        In answering questions 4 and 5, the jury necessarily concluded that plaintiffs were

being exposed to a substantial risk of sexual abuse by Shelby, and that Harper and Ruiz

knew of this substantial risk and did nothing to protect plaintiffs from the abuse. The

jury’s affirmative answers to questions 4 and 5 correlate directly to the elements of the



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“failure to protect” theory, wherein: (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 inference; and (3) the official

consciously or recklessly disregarded the risk. (Farmer, supra, 511 U.S. at pp. 836-840,

846-847.)

       There is absolutely no reference in the special verdict as to the elements of

alternative two wherein: “(1) the existing policy or practice created an unreasonable risk

of the Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk

was created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted

from the policy or practice.” (Beers-Capitol v. Whetzel, supra, 256 F.3d at p. 134.)

       Lastly, a review of the closing arguments indicate that there was basically no

discussion of the “policy and practices” theory. Any error in failing to completely

instruct on the theory of “policies and practices” is thereby harmless.

       9. Requested Special Instruction on Deference to Prison Officials’ Judgment

       Harper and Ruiz proposed special instruction No. 5B, as follows: “In determining

whether defendant Jerry Harper and/or defendant Xavier Ruiz violated plaintiffs’ 8th

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.

       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.

       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



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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.

          Plaintiffs argued at trial that they could prove notice to Harper and Ruiz that

Shelby was likely to sexually assault wards by showing that he was an “unfit,

unprofessional employee” who frequently violated the rules. However, notice of bad acts



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unrelated to the constitutional injury at issue in a case cannot establish actual knowledge

of a substantial risk of that constitutional injury. (Parrish v. Cleveland (4th Cir. 2004)

372 F.3d 294, 305-307 [correctional officers’ general knowledge of the risks of

transporting intoxicated and handcuffed prisoners did not establish notice of the specific

risk of aspiration of gastric contents and positional asphyxia from use of a “spit” mask].)

It was error to admit such evidence against Harper and Ruiz.

       Plaintiffs also contend that Shelby’s coworkers had seen Shelby violate various

CYA policies and believed that Shelby posed a danger to wards. However, such

evidence was irrelevant to establish that either Harper or Ruiz shared such knowledge or

belief. Liability under section 1983 may be based only on officials’ own knowledge, not

that of their subordinates. (Farmer, supra, 511 U.S. at pp. 837-838; Iqbal, supra, 556

U.S. at p. 677.)

       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



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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.

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; and (3) the admission of evidence relative to “meetaninmate.com”




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and Shelby engaging in sexual conduct at a motel with former inmate Girard. 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

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. It simply cannot be said that a different verdict would have been



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rendered in the absence of the inadmissible evidence. 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.

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. Because we reverse the

judgment as to Harper and Ruiz and remand for further proceedings, we will also vacate

the award of attorney fees and remand for reconsideration of attorney fees chargeable to

Shelby.

       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)




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[“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.6

        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.

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


        6   Discussion of Mr. Dordick’s fee enhancement will be discussed, post.



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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

billing compilation or block billing, the time accounted for is as detailed as any client

could expect.7

       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.



       7   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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       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

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. 8

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.”9

       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. Dordick’s hourly fee will be discussed, post, when we address the
       8
enhancement.

       9We 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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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

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



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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

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




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[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

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



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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

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



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(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.”

       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




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feels that an enhancement is appropriate, employ a method of calculation that is

objectively reasonable and subject to review.10

       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.




       10  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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                                    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, consistent with the views expressed in this opinion. The matter is further

remanded with directions to correct the judgments to reflect that attorney fees and costs

are awarded to Ruelas, Espinoz, 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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