                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 30 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANGELICA J. KAUHAKO, individually                No. 16-16681
and as parent and next friend of her minor
child, M. Doe,                                   D.C. No. 1:13-cv-00567-DKW-KJM

              Plaintiff-Appellee,
                                                 MEMORANDUM*
 v.

STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION,

              Defendant-Third-Party-
              Plaintiff-Appellant.

      and

NELSON SHIGETA, individually and as
principal of Waianae High School;
KRISTIN LINDQUIST, individually and
as care coordinator of Waianae High
School,

              Defendants-Third-Party-
              Plaintiffs,

  v.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
RUSTON TOM,

            Third-Party-Defendant-
            Appellee.



ANGELICA J. KAUHAKO, individually            No. 17-15085
and as parent and next friend of her minor
child, M. Doe,
                                             D.C. No. 1:13-cv-00567-DKW-KJM
            Plaintiff-Appellee,

v.

STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION; et al.,

            Defendants-Third-Party-
            Plaintiffs-Appellees,

 v.

RUSTON TOM,

            Third-Party-Defendant-
            Appellant.


                 Appeals from the United States District Court
                           for the District of Hawaii
                Derrick Kahala Watson, District Judge, Presiding

               No. 16-16681 Argued and Submitted June 11, 2018




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                     No. 17-15085 Submitted June 11, 2018**
                                Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.

      These appeals arise from a lawsuit filed by Angelica Kauhako individually

and as parent and next friend of M. Doe against the State of Hawaii Board of

Education and Department of Education (“the State”) and teacher Kristin

Lindquist. The State impleaded Ruston Tom as a third-party defendant, and the

jury returned a verdict in Kauhako and Tom’s favor. The State appeals the district

court’s evidentiary rulings, and the court’s denial of its motion for judgment as a

matter of law or for a new trial. Tom cross-appeals the district court’s denial of his

motion for attorney’s fees. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm the district court in both appeals.

                                1. The State’s Appeal

      A. We review the district court’s evidentiary rulings for an abuse of

discretion. Ostad v. Or. Health Scis. Univ., 327 F.3d 876, 885 (9th Cir. 2003). The

district court did not err in permitting Dr. Lynch to testify absent the disclosure

required by Fed. R. Civ. P. 26(a)(2)(C), because Dr. Lynch did not offer expert

testimony, and Dr. Lynch’s deposition testimony gave the State ample notice of her


      ** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                           3
expected trial testimony. The district court also did not permit improper cross-

examination of Lindquist. The topics elicited on cross were reasonably related to

the scope of the direct examination, or to matters affecting Lindquist’s credibility

as a witness. Fed. R. Evid. 611(b). The State correctly argues that the district court

admitted inadmissible hearsay at trial by allowing Kauhako to testify to M.’s

statements after the April 18 assault. But because multiple witnesses testified

without objection to M.’s account of the assault, the error was harmless.

      B. We review de novo the district court’s denial of the State’s renewed

motion for judgment as a matter of law. Josephs v. Pac. Bell, 443 F.3d 1050, 1062

(9th Cir. 2006). The State argues that it is entitled to judgment because of

Lindquist’s immunity from liability. The district court determined that, in

accordance with the jury’s failure to find that she acted with malice, Lindquist was

entitled to a qualified privilege afforded under Hawaii law to non-judicial

governmental officials performing public duties, and dismissed all claims against

her. See Towse v. State, 647 P.2d 696, 702 (Haw. 1982). As a result, the State’s

liability cannot be premised on Lindquist’s conduct on a theory of respondeat

superior. See Hulsman v. Hemmeter Dev. Corp., 647 P.2d 713, 717 (Haw. 1982).

      We disagree, however, that Lindquist’s conduct forms the sole basis for the

State’s liability. The record contains substantial evidence of the State’s direct


                                           4
liability, as distinct from liability based on respondeat superior. See, e.g., Doe

Parents No. 1. v. State, Dep’t of Educ., 58 P.3d 545, 579 (Haw. 2002). Under

Hawaii law, the State is subject to a duty “reasonably to anticipate, as would a

reasonably prudent parent, foreseeable harm and to take whatever action is

reasonable to protect a student from that foreseeable harm.” Id. at 592. In fact, in

the final Pretrial Order, the State stipulated that “Defendant DOE, standing in loco

parentis, owed a duty to Plaintiff to take reasonable steps to prevent reasonably

foreseeable harms to its students.” If the State is put on notice of a specific risk of

harm, it “is required to take affirmative steps specifically to ensure the safety and

welfare of [its] students.” Id. at 591.

      The record contains substantial evidence that approximately six months

before the assault at issue, multiple officials were informed of a separate incident

in which Tom inappropriately touched M. The record also contains evidence that

officials failed to take reasonable precautions to ensure M.’s safety and to

supervise Tom after receiving notice of that prior incident. Accordingly, the district

court correctly denied the State’s motion for judgment as a matter of law.

Substantial evidence also supports the jury’s award of damages for future medical

expenses.




                                            5
      C. The district court did not abuse its discretion in denying the State’s

motion for a new trial based on alleged inconsistencies in the jury’s verdict. We

uphold an allegedly inconsistent verdict “unless it is impossible under a fair

reading to harmonize the answers.” Magnussen v. YAK, Inc., 73 F.3d 245, 246 (9th

Cir. 1996) (internal quotation marks omitted). The jury found for the State with

respect to Kauhako’s Title IX claim, but found against the State with respect to

Kauhako’s negligence-based claims. Because a Title IX claim requires proof of

actual knowledge of severe sexual harassment that deprives the victim of access to

educational opportunities, while negligence requires only proof that the school

knew or should have known of a foreseeable risk of harm to M., the verdict is

consistent. See Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642 (1999).

                                  2. Tom’s Appeal

      The district court did not abuse its discretion in denying Tom’s motion for

attorney’s fees. Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 967 (9th Cir. 2009).

Tom is not entitled to fees under the Individuals with Disabilities Education Act,

because he did not prevail in any “action or proceeding” brought under that statute.

20 U.S.C. § 1415(i)(3)(B)(i). Tom only successfully defended the State’s claim

against him for contribution. Tom is not entitled to attorney’s fees under Haw. Rev.

Stat. § 607-14.5(a) because he has not demonstrated that the State has waived its


                                          6
sovereign immunity and consented to an award of fees. Nelson v. Haw. Homes

Comm’n, 307 P.3d 142, 168 (Haw. 2013). In addition, the State’s claims against

Tom were not frivolous.

      As to both appeals, the respective challenged orders of the district court are

AFFIRMED.




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