Opinion
E065516
05-09-2018
ROOKE BARON, Plaintiff and Appellant, v. SCAF WATER POLO et al., Defendants and Respondents.
WCH Law Group, Ravi Sudan; Gates, O'Doherty, Gonter & Guy and Douglas D. Guy for Plaintiff and Appellant. Hewitt & Truszkowski, Stephen L. Hewitt and Henry C. Truszkowski for Defendant and Respondent SCAF Water Polo. Law Offices of Brad Snyder and Bradley A. Snyder for Defendant and Respondent Stephen Born. No appearance by Defendant and Respondent Nicolas Simental.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1014455) OPINION APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed. WCH Law Group, Ravi Sudan; Gates, O'Doherty, Gonter & Guy and Douglas D. Guy for Plaintiff and Appellant. Hewitt & Truszkowski, Stephen L. Hewitt and Henry C. Truszkowski for Defendant and Respondent SCAF Water Polo. Law Offices of Brad Snyder and Bradley A. Snyder for Defendant and Respondent Stephen Born. No appearance by Defendant and Respondent Nicolas Simental.
I.
INTRODUCTION
Defendant and respondent, Nicolas Simental, sexually abused plaintiff and appellant, Rooke Baron, numerous times for about a year and a half, beginning when she was 15 years old. Simental was 11 years older than Rooke. Rooke filed the instant civil action against Simental, and defendants and respondents, Stephen Born and Southern California Aquatics Federation Water Polo, Inc. (SCAF), for damages, alleging childhood sexual abuse and intentional infliction of emotional distress against Simental, and negligence against Born and SCAF. Because Simental and Born were SCAF officials or agents, Rooke also sued SCAF for vicarious liability based on Simental's acts of sexually abusing Rooke, and based on Born's negligence in not protecting her. The jury found Simental liable for sexually abusing Rooke but found SCAF and Born not directly or vicariously liable.
Because Rooke Baron and her father, Ronald Baron, are both mentioned in this opinion and share the same last name, we refer to Rooke Baron by her first name, Rooke, and to Ronald Baron by his last name.
Rooke appeals from a judgment against Simental, awarding Rooke $2,064,675 in damages solely against Simental. Rooke contends (1) the trial court deprived her of the right to assert vicarious liability against SCAF, by rejecting Rooke's proposed special verdict questions addressing SCAF's vicarious liability, (2) defense counsel committed misconduct and introduced inadmissible, prejudicial evidence, (3) the trial court erred in rejecting Rooke's special jury instructions 7, 9, 10, 11, 12, and 18, and giving inapplicable and improper special jury instructions 5, 16, 18, 28, 57, and 60, (4) the trial court erred in allowing consideration of nonparties' fault when apportioning damages for the tort of childhood sexual abuse, (5) the trial court abused its discretion in allowing defense counsel to read Born's deposition testimony during redirect examination, and (6) there was insufficient evidence to support the verdict to the extent it favored defendants.
We reject Rooke's contentions as discussed below and affirm the judgment.
II.
FACTS AND PROCEDURAL BACKGROUND
In October 2010, Rooke filed the instant lawsuit against SCAF and Simental. Two years later Rooke filed a second amended complaint adding Born as a defendant. Thereafter, Rooke filed a third amended complaint, the operative complaint in this action (complaint). The complaint included causes of action for (1) unlawful seduction of a minor and childhood sexual abuse, against Simental and SCAF, (2) childhood sexual battery, against Simental and SCAF, (3) gender violence/battery, against Simental, (4) intentional infliction of emotional distress, against Simental and SCAF, (5) negligence, against Born and SCAF, and (6) sexual harassment, against Simental and SCAF.
The complaint alleged that Simental, who was 11 years older than Rooke, sexually abused Rooke, beginning in 2005, when she was 15 years old. Simental continued to engage in sexual acts with Rooke for over a year and a half, until November 2006. During the sexual abuse, Baron allegedly held weekly SCAF Inland Chapter officer meetings at his home. The meetings were usually attended by Born, Simental, and Baron. Alcohol was consumed during the meetings, and usually afterwards Born and Simental would sleep over at the Baron home in the living room, because they had become intoxicated. The living room was adjacent to Rooke's bedroom. Beginning in the spring of 2005, Simental began sexually abusing Rooke while Born was sleeping on the living room couch and the rest of the family slept upstairs. Rooke further alleged that Born knew about Simental's sexual relationship with Rooke and, through Born, SCAF knew or should have known of the sexual relationship. Rooke claimed SCAF and Born were negligent in failing to take reasonable action to protect Rooke from foreseeable harm and stop the ongoing sexual relationship.
Evidence of the following facts was presented at trial. SCAF is a Southern California organization formed for the purpose of recruiting, training, and certifying referees for water polo competition at the high school, collegiate, and club levels. SCAF does not have employees. It operates through a volunteer board of directors and officers, in accordance with SCAF's code of ethics. SCAF referees are independent contractors.
SCAF is comprised of six regional chapters, including the SCAF Inland Empire Chapter, which includes San Bernardino County. Regional chapters are operated by volunteer officers, who conduct regular officer meetings, which are held before chapter meetings. SCAF does not restrict the consumption of alcohol at SCAF officer meetings, and there are no restrictions as to where a SCAF officer meeting can be held.
During the gatherings at the Baron home in 2005 and 2006, Baron, Born, and Simental would typically discuss SCAF matters and drink alcohol. Simental and Born would drive to the Baron home together and would sometimes bring alcohol. Baron would also provide alcohol. Born and Simental would become intoxicated, sleep over in the Baron living room until sober, and then drive home.
Rooke's first contact with Simental was in 2002, when she went to a movie with him, her father, Baron, and his girlfriend, Regina Montoya, who lived with Rooke and Baron. The first time Simental had sex with Rooke was in June 2005, when Rooke was 15 years old, Simental was 26 years old, and Born was 21 years old. Simental had sex with Rooke at least 14 to 16 times, usually in Rooke's bedroom while Born slept on the couch in the living room. During that time, Born was Simental's best friend. Contrary to Simental's multiple statements made before the trial, Simental testified at trial and stated in a declaration opposing SCAF's motion for summary judgment, that the morning after he first had sex with Rooke in June 2005, he told Born he had just had sex with her. This contradicted Simental's testimony during his previous deposition, in which Simental said he did not tell Born or anyone else that he and Rooke were involved in a sexual relationship.
Born consistently denied contemporaneous knowledge of Simental and Rooke having sex. He testified that when he woke up at the Baron home, Simental was always there in the living room. Born did not suspect anything of a sexual nature was going on between Simental and Rooke. Born also testified that Simental called him in September 2013, informing him that Simental was changing his testimony in order to keep SCAF in the lawsuit.
At the time of the sexual abuse in 2005 and 2006, Simental was a SCAF-sanctioned referee, assigner, and past president of SCAF Inland Chapter. Born was a SCAF-sanctioned referee, a member of the SCAF board of directors, and president of SCAF Inland Chapter. Baron was a SCAF-sanctioned referee, instructional chair of SCAF Inland Chapter, and past president of SCAF Inland Chapter.
In 2007, Baron discovered Rooke's diaries, in which Rooke described sexual activity with Simental. She stated in her diaries that Born knew of the activity. Baron provided the diaries to the police. Baron also notified the SCAF president of Simental's arrest for engaging in sexual acts with Rooke. Simental was charged and convicted of criminal child abuse.
III.
VICARIOUS LIABILITY
Rooke contends the trial court prejudicially erred in rejecting questions 2, 3, and 4 from Rooke's proposed special verdict form. The court deleted the questions from the section entitled "Childhood Sexual Abuse." Those questions were as follows:
"2. Did Nicolas Simental commit childhood sexual abuse upon Rooke Baron after consuming alcohol during the SCAF Officers' Meetings? [¶] . . . [¶]
"3. Was Nicolas Simental's ingestion of alcohol a substantial factor in causing harm to Rooke Baron? [¶] . . . [¶]
"4. Was Nicolas Simental acting within the scope of his authority as SCAF's representative, officer, or agent while attending the SCAF Officers' Meetings and consuming alcohol?"
After the court ordered these three questions stricken, the special verdict section addressing Rooke's claim of childhood sexual abuse included only the following two questions:
"1. Did Nicolas Simental commit childhood sexual abuse upon Rooke Baron? [¶] . . . [¶]
"2. Was Nicolas Simental's conduct a substantial factor in causing harm to Rooke Baron?"
The jury answered "YES" to both of these questions.
The trial court "may direct the jury to find a special verdict only upon issues in the case." (Klemme v. Hoag Memorial Hospital Presbyterian (1980) 103 Cal.App.3d 640, 645.) A special verdict requires the jury to determine every controverted fact issue. (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1539; Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 206.) A special verdict must present conclusions of fact (i.e., ultimate facts) established by the evidence, from which the court draws conclusions of law. (Code Civ. Proc., § 624.)
Formulation of special verdict questions is within the trial court's discretion. Whether the questions are misleading or confusing, or inaccurately frame issues is reviewed de novo for an abuse of discretion. Abuse of discretion based on erroneous special verdict interrogatories is subject to a harmless error standard. To obtain reversal the appellant must demonstrate prejudice. (Klemme v. Hoag Memorial Hospital Presbyterian, supra, 103 Cal.App 4th at p. 645; Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228.)
A. Respondeat Superior Liability
In determining whether the trial court erred in striking the special verdict questions, we begin by considering whether there was any evidence supporting vicarious liability against SCAF based on Simental sexually abusing Rooke. Under the respondeat superior doctrine, "an employer is liable for risks 'arising out of the employment.' [Citations.] [¶] A risk arises out of the employment when 'in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.'" (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003 (Farmers Ins.).) "'"[W]here the question is one of vicarious liability, the inquiry should be whether the risk was one 'that may fairly be regarded as typical of or broadly incidental' to the enterprise undertaken by the employer. [Citation.]" [Citation.] Accordingly, the employer's liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise.'" (Farmers Ins., at p. 1003, quoting Perez v. Van Groningen & Sons, Inc., at p. 968; see also Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208-209 (Mary M.).)
Civil Code section 2338 codifies the respondeat superior doctrine as follows: "Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal." Civil Code section 2338 "is not limited to employer and employee but speaks more broadly of agent and principal; it makes the principal liable for negligent and 'wrongful' acts committed by the agent 'in and as part of the transaction of such [agency] business.'" (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296, fn. 2.)
Rooke argues this doctrine applies to Simental's acts of sexually abusing her, because the misconduct occurred right after Simental, Born, and Baron met at Baron's home for SCAF Inland Chapter officers' meetings. During the gatherings, Born and Simental drank alcohol and became intoxicated. Rooke argues that, even though Simental sexually abused Rooke after the SCAF meetings while alone with Rooke in her bedroom, the evidence supported findings that SCAF was vicariously liable under the theory of respondeat superior. Born, Simental, and Baron were SCAF principals, officers, agents or representatives and they were conducting SCAF business, which Rooke argues led to Simental sexually abusing Rooke. Rooke cites Purton v. Marriott Internat., Inc. (2013) 218 Cal.App.4th 499, 505, for the proposition that, "[u]nder the respondeat superior doctrine, the term 'scope of employment' has been interpreted broadly. [Citation.] '"[T]he employer's liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise."' [Citation.] '"[T]he fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer."' [Citation.] Thus, an employer's vicarious liability may extend to the employee's negligence, willful and malicious torts, or acts that contravene an express company rule and confer no benefit to the employer."
As noted in Mary M., supra, 54 Cal.3d at pages 218-219, "'"The fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer."' [Citation.] . . . '[T]he proper inquiry is not "'whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal.'"'" Here, SCAF Inland Chapter officers' meetings were authorized by SCAF and drinking during the meetings was not expressly prohibited. However, there is no evidence whatsoever that SCAF authorized, ratified or approved its officers getting drunk during meetings, and then afterwards sexually abusing minors.
Rooke argues that Simental's sexual abuse of Rooke was an outgrowth of his SCAF agency. As stated in Purton v. Marriott Internat., Inc., supra, 218 Cal.App.4th at page 505, "an employer [or principal] may be vicariously liable for an employee's [or agent's] tort if the employee's act was an '"outgrowth"' of his employment, '"'inherent in the working environment,'"' '"'typical of or broadly incidental to'"' the employer's business, or, in a general way, foreseeable from the employee's duties. [Citation.]" The Purton court explained that "[f]oreseeability in the context of respondeat superior liability must be distinguished from foreseeability as a test for negligence. [Citation.] '"'[F]oreseeability' as a test for respondeat superior merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business."'" (Ibid.; see also Farmers Ins., supra, 11 Cal.4th at p. 1004.)
An employer or principal "will not be held vicariously liable for an employee's malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes." (Farmers Ins., supra, 11 Cal.4th at p. 1005.) This includes conduct in which the representative, agent, or employee "'inflicts an injury out of personal malice, not engendered by the employment' [citation] or acts out of 'personal malice unconnected with the employment.'" (Ibid.) "'If an employee's tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.' [Citation.] In such cases, the losses do not foreseeably result from the conduct of the employer's enterprise and so are not fairly attributable to the employer as a cost of doing business." (Ibid.)
Here, there is conflicting evidence as to whether the gatherings among Simental, Born, and Baron constituted official SCAF Inland Chapter officer meetings. Even assuming the gatherings were SCAF meetings, SCAF was not vicariously liable for Simental sexually abusing Rooke because Simental's conduct was quite unusual and startling. It was not conduct inherent in conducting SCAF officer meetings and was not typical or broadly incidental to SCAF business, or even foreseeable. (Purton v. Marriott Internat., Inc., supra, 218 Cal.App.4th at p. 505.) It thus would be unfair to include the loss resulting from such conduct among other costs of SCAF's business. (Ibid.) SCAF did not benefit from, condone or encourage Simental's criminal conduct or heavy drinking during the SCAF meetings. Rather, Simental committed an egregious sexual crime against a minor, which the jury found he concealed from everyone, including Born, Baron, and SCAF. It is undisputed in the instant case that Simental "'substantially deviated from his duties for personal purposes "' (Mary M., supra, 54 Cal.3d at p. 218), and SCAF was unaware of the unlawful conduct and had no reason to foresee it. There does not appear to be any evidence that such criminal conduct was a pervasive problem among SCAF officers conducting SCAF chapter meetings or that such meetings commonly led to heavy drinking and intoxication, and, in turn, molestation of children.
Generally, the courts have held employers are not vicariously liable for employee sexual misconduct directed toward a third party, except as to sexual misconduct by on-duty police officers against members of the public. (Farmers Ins., supra, 11 Cal.4th at p. 1006; Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718 [church not liable for repeated acts of sexual assault on minor by Sunday school teacher]; Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133 [school district not liable for janitor's rape of student].)
Although child sexual abuse is a serious societal problem, holding SCAF responsible here would stretch the respondeat superior foreseeability concept beyond its logical limits. (Mary M., supra, 54 Cal.3d at p. 214.) We reject the proposition that simply because SCAF provided the opportunity for Simental's criminal acts, by virtue of requiring SCAF Inland Chapter officer meetings, that Simental's criminal conduct should be imputed to SCAF. "Rather, the imposition of tort liability for a third party's sexual misconduct requires that direct negligence be established." (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395.) The jury found in the instant case that both SCAF and Born were not directly negligent, and there is no evidence to the contrary.
We therefore conclude as a matter of law that SCAF cannot be held liable for Simental's unlawful acts of clandestinely sexually abusing Rooke. In turn, we reject Rooke's contention that the special verdict form was fatally defective because it did not include Rooke's three vicarious liability questions premised on Simental drinking alcohol during SCAF meetings. The trial court appropriately ordered Rooke's three proposed questions stricken from the special verdict form.
B. Posttrial Motions
Rooke contends the trial court erred in denying her motions for judgment notwithstanding the verdict (JNOV) and new trial, in which she argued the trial court should have granted these posttrial motions in order to remedy the trial court's erroneous striking of Rooke's proposed special verdict questions on vicarious liability (questions 2, 3, and 4). As argued above regarding the special verdict form, Rooke asserts there was substantial evidence supporting a finding that SCAF was vicariously liable for Simental sexually abusing Rooke after consuming alcohol during SCAF Inland Chapter officer meetings. Rooke argues Simental was acting within the course and scope of his SCAF agency.
For the same reasons stated above regarding Rooke's challenge to the special verdict form, we reject Rooke's challenge to the trial court's ruling denying Rooke's motions for JNOV and new trial. As a matter of law, the factual findings posed in the stricken special verdict questions (Nos. 2, 3, and 4), if found true, are insufficient to support vicarious liability. Therefore the trial court properly deleted Rooke's proposed special verdict questions, and denied Rooke's motions for JNOV and new trial.
IV.
ATTORNEY MISCONDUCT
Rooke contends defense counsel for Born and SCAF committed attorney misconduct when cross-examining Simental during the trial. During such cross-examination, defense counsel for Born and SCAF inquired regarding Simental providing a declaration contradicting his previous statements denying he told Born he had had sex with Rooke.
A. Applicable Law Regarding Attorney Misconduct
"'The law, like boxing, prohibits hitting below the belt. The basic rule forbids an attorney to pander to the prejudice, passion or sympathy of the jury.' [Citation.] 'The rule also manifests itself by prohibiting irrelevant ad hominem attacks.' [Citation.] 'Personal attacks on the character or motives of the adverse party, his counsel or his witnesses are misconduct.' [Citation.] Similarly, repeated violations of pretrial in limine rulings, despite sustained objections, is misconduct." (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 295.)
"'[T]o preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial and the party must also have moved for a mistrial or sought a curative admonition unless the misconduct was so persistent that an admonition would have been inadequate to cure the resulting prejudice. [Citation.] This is so because "[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial."' [Citation.] Raising the issue for the first time in a posttrial motion is insufficient because the trial court has no ability to correct the misconduct at that point." (Bigler-Engler v. Breg, Inc., supra, 7 Cal.App.5th at p. 295.)
B. Forfeiture
Here, Rooke objected to the cross-examination at issue and requested and obtained a stipulated curative instruction, which the trial court read to the jury as follows: "All counsel in this matter agree there was no improper conduct by any attorney in the preparation of the declaration. You are not to infer any improper conduct on the part of Mr. Raphael [Rooke's attorney] or Mr. Ricks [Simental's attorney] in their preparation of the declaration of Nicolas Simental." Rooke also did not move for a mistrial. SCAF argues that, by not moving for a mistrial after the curative instruction, Rooke forfeited her objection to the cross-examination at issue.
We disagree. Moving for a mistrial would likely have been futile once a stipulated curative instruction was given. It is unlikely the trial court would have granted a mistrial after giving a stipulated curative instruction. Furthermore, Rooke's request for a stipulated curative instruction, instead of moving for a mistrial, suggests that Rooke believed the instruction was sufficient to cure any misconduct and nothing further was required to correct the error. Regardless of whether Rooke forfeited her attorney misconduct objection, we reject it on the merits.
C. Cross-examination Using Simental's Deposition Testimony
Rooke's attorney misconduct objection is based on the following circumstances. Born's attorney read to the jury Simental's deposition testimony stating that right after the first time he had sex with Rooke, Simental did not tell Born. Several years later, Simental contradicted his previous testimony and statement to the police by providing a declaration in September 2013, opposing SCAF's motion for summary judgment. Simental stated in his declaration that right after he first had sex with Rooke, he told Born he had sex with her. Simental explained that "it was decided upon" that he should at that time tell the "entire truth." Simental further stated in his declaration that he was supplementing his previous discovery responses in which he failed to disclose his conversation with Born the morning after first having sex with Rooke.
Rooke contends defense counsels' cross-examination using Simental's inconsistent deposition testimony constitutes attorney misconduct because it suggested that Rooke's and Simental's attorneys illicitly conspired to persuade Simental to change his testimony. We disagree. There was no prejudicial attorney misconduct. First, the trial court gave a stipulated curative instruction after Rooke complained that the cross-examination in question might be construed by jurors as impugning the character or motives of Rooke's and Simental's attorneys. The parties all agreed to the curative instruction, thereby conveying that the instruction cured any potential harm caused by defense counsels' cross-examination. "Attorney misconduct is incurable only in extreme cases." (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1412.) Here, the curative instruction, agreed to by all parties, was sufficient to cure any possible aspersions on Rooke's and Simental's attorneys.
More importantly, there was no attorney misconduct. Defense counsels' cross-examination was within the wide latitude accorded counsel cross-examining witnesses. Simental signed a declaration two days before the hearing on SCAF's motion for summary judgment. The declaration contradicted Simental's previous testimony and police statement given years before that he did not tell Born he had sex with Rooke. It also was inconsistent with Rooke's statement to the police. In addition, the veracity of Simental's testimony was suspect because his declaration was on pleading paper inscribed with a footer stating Rooke's attorney's law firm name. Born also testified that Simental called him in September 2013, informing him that Simental was changing his testimony to state Born had contemporaneous knowledge of the sexual abuse in order to keep SCAF in the lawsuit. Defense counsel conducted permissible cross-examination exploring the circumstances of the drafting of Simental's declaration. Such cross-examination was directly relevant to the veracity of Simental's testimony on a key issue.
V.
ADMISSIBILITY OF EVIDENCE OF FURNISHING ALCOHOL
Rooke asserts that the trial court committed prejudicial error by allowing the defense to introduce evidence of Simental, Baron, and Montoya furnishing Rooke with alcohol. Rooke argues the evidence should not have been permitted as to Baron and Montoya because they are immune from liability under Civil Code section 1714, subdivision (c), as social hosts. We disagree. As Rooke's parents and as homeowners, Baron and Montoya owed Rooke a duty to protect and supervise her in their home. When Rooke was asked during the trial about drinking alcohol, Rooke testified that she often was drunk in Montoya's presence and obtained alcohol from Baron and Montoya's liquor cabinet. Rooke also testified that there were times when her father gave her alcohol if she asked for it, but he did not let her get drunk. Under Penal Code section 272, Baron and Montoya had a duty not to contribute to Rooke's delinquency, which included not providing Rooke with alcohol, not making alcohol readily accessible to Rooke in her home, and not allowing her to consume it.
Rooke argues the trial court violated its ruling on Rooke's motion in limine (MIL) No. 12 by allowing evidence Rooke was given alcohol. Rooke asserts that the court's MIL ruling prohibited the introduction of any evidence of furnishing alcohol. MIL No. 12 requested the court to prohibit defendants, defense counsel, and defense witnesses from "mentioning, making reference to, implying, suggesting, arguing, and/or introducing any evidence that Plaintiff's father, Ron Baron furnished, gave, or supplied alcoholic beverages to defendants SIMENTAL and BORN or to any person anytime immediately before, during, or after the meetings at his house . . . ." (Italics added.) Rooke asserted in the MIL that such evidence was irrelevant, had no probative value, and was unduly prejudicial.
We disagree. The evidence was potentially admissible for impeachment purposes and relevant to the determination of comparative fault by Baron and others. Simental's attorney argued that he anticipated that Rooke would argue that Simental exclusively gave her alcohol. Simental's attorney asserted that if Rooke was permitted to accuse Simental of exclusively giving her alcohol, it would be unfair to preclude Simental from presenting evidence that she received alcohol from other sources as well. The trial court agreed that if Rooke testified she received alcohol only from Simental, evidence that others also provided her with alcohol would be admissible as impeachment evidence. The court then ruled that Rooke's MIL No. 12 "is denied. Evidence as to who provided the alcohol, specifically Baron, can come in before the jury." The trial court clarified that Rooke would have to testify first that only Simental gave her alcohol. Then evidence refuting this could come in for impeachment purposes.
Evidence of Baron and Montoya furnishing alcohol to Rooke was also directly relevant to the jury's determination of comparative fault on the part of Baron and Montoya in failing to protect and supervise her. Because the evidence was relevant and not unduly prejudicial, the trial court did not abuse its discretion in allowing evidence of Baron and Montoya furnishing alcohol to Rooke and others.
VI.
INSTRUCTIONAL ERROR
Rooke contends the trial court committed numerous instructional errors, including failing to give special jury instructions requested by Rooke, and giving erroneous or misleading special jury instructions proposed by defendants. We conclude there was no such instructional error.
A. Applicable Law
"'A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.'" (McMahon v. Albany Unified School District (2002) 104 Cal.App.4th 1275, 1289, quoting Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) "'Although a party is entitled to instructions on his [or her] theory of the case, if reasonably supported by the pleadings and the evidence, instructions must be properly selected and framed. The trial court is not required to give instructions [that] are not correct statements of the law or are incomplete or misleading [citation].'" (Norman v. Life Care Centers of America, Inc.(2002) 107 Cal.App.4th 1233, 1242, quoting Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 782.)
We review jury instructions de novo, as a question of law. (Mize-Kurzman v. Marin Cmty. Coll. Dist. (2012) 202 Cal.App.4th 832, 845.) "[W]e view the evidence in the light most favorable to the claim of instructional error. [Citations.] In other words, we assume the jury might have believed the evidence favorable to the appellant and rendered a verdict in appellant's favor on those issues as to which it was misdirected." (Id. at pp. 845-846.) "'"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.) . . . [¶] Instructional error in a civil case is prejudicial 'where it seems probable' that the error 'prejudicially affected the verdict.'"'" (Id. at p. 846.)
B. Special Instructions 10, 11, 12, and 18
Rooke argued at trial that Simental consumed alcohol during SCAF officers' meetings held at the Baron home, within the scope of his agency or authority. This resulted in Simental becoming intoxicated, which led to Simental sexually abusing her. During the trial, the court gave the jury CACI vicarious liability instructions, including CACI Nos. 3700 (Introduction to Vicarious Responsibility), 3703 (Legal Relationship Not Disputed), 3710 (Ratification), 3720 (Scope of Employment), 3722 (Scope of Employment-Unauthorized Acts), 3723 (Substantial Deviation), and 3724 (Social or Recreational Activities).
Rooke also requested special instructions supporting her vicarious liability theory, including special instructions 10, 11, and 12, as follows:
"[No. 10] Where the agent or representative may be deemed to be pursuing his principal's business errand and a personal objective simultaneously, he will still be acting within the scope of his employment/agency/authority.
"[No. 11] Alcohol plays a major role in the incidence of death and injuries on our highways, the battered women's syndrome, and assaults and batteries in taverns, on the streets and in the home.
"[No. 12] The Principal is liable for its agent's wrongful act as long as the agent's ingestion of alcohol within the scope of employment or authority was a substantial factor in causing Plaintiff's injury. [¶] The Principal's liability continues until the risk that was created by the alcohol ingestion dissipates. It does not matter when or where the agent's act results in Plaintiff's injury."
After the trial court rejected special instructions 10, 11, and 12, Rooke requested special instruction 18, in lieu of special instruction 12. Special instruction 18 states: "The Principal is liable for its officer or agent's wrongful act as long as a legal cause [or] a substantial factor of Plaintiff's injury occurred within the scope of the officer or agent's authority or agency. [¶] It is irrelevant when the wrongful act results in Plaintiff's injury." The trial court also rejected special instruction 18, concluding that the CACI instructions on vicarious liability were sufficient.
Rooke argues the requested vicarious liability instructions should have been given because the general CACI instructions did not sufficiently address vicarious liability. The instructions did not clearly instruct the jury that a principal is liable for its agent ingesting alcohol within the scope of the agency if the alcohol consumption was a substantial factor in causing the plaintiff's injury. We conclude special instructions 10, 11, 12, and 18 were unnecessary because the CACI instructions sufficiently covered all of the applicable vicarious liability principles. "It is not error, of course, [for the trial court] to refuse to give an instruction requested by a party when the legal point is covered adequately by the instructions that are given." (Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11.) The trial court thus did not abuse its discretion in rejecting special instructions 10, 11, 12, and 18. Furthermore, "even had the court erred, any error would have been harmless under any standard." (People v. Hovarter (2008) 44 Cal.4th 983, 1022.)
C. Special Instructions 7 and 9
Rooke contends the trial court erred in rejecting her proposed special instructions 7 and 9. The instructions related to Born's and SCAF's alleged negligence, founded on theories of special relationship and nondelegable duty of care. The trial court rejected the instructions, concluding they were argumentative and unnecessary.
Rooke argues that a special relationship between SCAF, Simental, Born, and Rooke created a duty to control Simental's sexual activity with Rooke, who was a foreseeable victim. Rooke's proposed special instruction 7 (special relationship defined) states the following: "A Special Relationship exists between ROOKE BARON and SCAF and STEPHEN BORN, jointly or severally, if at the time of the subject events: [¶] (1) ROOKE BARON was a member of a vulnerable class of persons who are unable to care for or protect themselves; and [¶] (2) SCAF and STEPHEN BORN, jointly or severally, agreed to protect the vulnerable class. [¶] If you find the existence of a Special Relationship, you must find that SCAF and STEPHEN BORN and each of them owed a duty to protect ROOKE BARON."
Rooke argues this instruction should have been given because there was a special relationship between Rooke and defendants Born and SCAF, based on Rooke being a child and a member of the public. Rooke asserts that SCAF's code of ethics recognizes a special relationship between the public and signatories to the ethics code, such as Born and SCAF. Rooke, a child, was a member of a vulnerable class, and child sexual abuse by a signatory to SCAF's code of ethics was prohibited. Rooke contends there was thus a special relationship between Rooke and defendants. We disagree.
SCAF's code of ethics did not create a special relationship between Rooke and defendants. As a general rule, "liability for negligence 'is not imposed for the failure to assist or protect another, absent some legal or special relationship between the parties giving rise to a duty to act. [Citations.]' [Citations.] The special relationship doctrine has developed as a means of avoiding imposing a duty to take protective action for the benefit of a potential victim when there is no relationship to the person needing protection." (Juarez v. Boy Scouts of America, Inc., supra, 81 Cal.App.4th at p. 410.) In Juarez, the court noted that, "[g]enerally, a greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger. [Citation.] Consequently, California courts have frequently recognized special relationships between children and their adult caregivers that give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties." (Ibid.)
Here, there was no unique relationship between Rooke and defendants that supported Rooke's proposed special relationship instruction. Defendants did not hold custody or have a caregiver relationship as to Rooke. They were not responsible for her in any other way. The trial court also was not required to give special instruction 7 based on SCAF's code of ethics or based on Rooke being home during SCAF officer meetings held at her home.
Rooke also argues the trial court abused its discretion in rejecting special instruction 9. We conclude there was no abuse of discretion because the evidence and law do not support a finding that Born and SCAF owed Rooke a nondelegable duty of care. Rooke's proposed special instruction 9, entitled, "Duty Not To Make Plaintiff's Situation Worse," states: "STEPHEN BORN and SCAF owed plaintiff a legal duty to avoid aiding, facilitating, or increasing the risk or likelihood of her childhood sexual abuse by NICOLAS SIMENTAL."
"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 572.) Special instruction 9 is argumentative and unnecessary, the evidence does not support a finding that Born and SCAF owed any special nondelegable duty to protect Rooke from Simental's sexual activity with her. "The trial court is not required to give instructions [that] are not correct statements of the law or are incomplete or misleading [citation]." (Levy-Zentner Co. v. Southern Pac. Transportation Co., supra, 74 Cal.App.3d at p. 782; accord, Norman v. Life Care Centers of America, Inc. (2002) 107 Cal.App.4th 1233, 1242.) Here, the trial court did not abuse its discretion in rejecting special instruction 9.
D. Defendants' Modified CACI Instructions
Rooke argues the trial court erred in giving defendants' modified CACI instructions, instructions 5 (CACI No. 204), 28 (CACI No. 427), 16 (CACI No. 401), 18 (CACI No. 406), 57 (CACI No. 3933), and 60 (CACI No. 3960).
1. Special Instruction 5 (CACI No. 204)
Rooke contends special instruction 5, which modified CACI No. 204, contained an incorrect statement of law and imposed a higher burden of proof on Rooke. Instruction 5 states: "If you find that a person associated with the case loses or destroys a particular item of evidence, an inference is created that the existence and production of the item of evidence could be unfavorable."
This instruction concerned the disappearance of Rooke's diaries (four booklets) after Baron turned them over to the police, the police photocopied them, and the police then returned them to Rooke's father. Rooke testified she asked her father what happened to the diaries and he said he gave them to Montoya. When Rooke asked Montoya what happened to them, Montoya said she gave them to Rooke's father. Rooke produced copies of the diaries and was cross-examined regarding their contents. Simental's investigator testified that he also obtained a copy of the diaries during Simental's criminal case.
Copies of the diaries produced during discovery consisted of black and white photocopies of pages which were out of order, whereas the original diaries included various handwriting styles in varying colors. Some pages were from spiral notebooks and some were from three-hole punched paper. Some of the photocopies contained obscure and illegible print because the print on the other side of the photocopied page showed through. The diaries were relied upon by Rooke to show Born had contemporaneous knowledge of Rooke's sexual relationship with Simental. The court agreed to give CACI No. 204, but as modified. Rooke objected to the modification, because it conveyed a negative inference as to Rooke, who had nothing to do with the loss of the diaries. The court stated that that was why the modified instruction made no inference to any individual.
The CACI No. 204 instructive section, "Directions for Use," states: "In Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12, a case concerning the tort of intentional spoliation of evidence, the Supreme Court observed that trial courts are free to adapt standard jury instructions on willful suppression to fit the circumstances of the case, 'including the egregiousness of the spoliation and the strength and nature of the inference arising from the spoliation.'" In addition, under CACI No. 204 "Sources and Authority," Williamson v. Superior Court of Los Angeles County (1978) 21 Cal.3d 829 (Williamson), is cited for the proposition: "'The rule of [present Evidence Code section 413] . . . is predicated on common sense, and public policy. The purpose of a trial is to arrive at the true facts. A trial is not a game where one counsel safely may sit back and refuse to produce evidence where in the nature of things his client is the only source from which that evidence may be secured. A defendant is not under a duty to produce testimony adverse to himself, but if he fails to produce evidence that would naturally have been produced he must take the risk that the trier of fact will infer, and properly so, that the evidence, had it been produced, would have been adverse.'" (Id. at p. 836, fn. 2, quoting Breland v. Traylor Engineering & Mfg. Co. (1942) 52 Cal.App.2d 415, 426.)
Rooke argues special instruction 5 (modified CACI No. 204) should not have been given because there was no evidence Rooke willfully suppressed, destroyed, or altered the diaries, and copies of the diaries were produced. Therefore the instruction improperly stated to the jury that an unfavorable inference could be made from the loss of the diaries. We disagree. The circumstances and law support the trial court giving modified CACI No. 204 (instruction 5). There was no abuse of discretion in doing so. Furthermore, even if there was error, it was harmless. It is not probable that instruction 5 misled the jury or prejudicially affected the verdict. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983.)
2. Special Instructions 28 (CACI No. 427), 16 (CACI No. 401), 18 (CACIN No. 406), 57 (CACI No. 3933), and 60 (CACI No. 3960)
Rooke argues the trial court erred in giving the following modified CACI Instructions, special instructions 28 (CACI No. 427), 16 (CACI No. 401), 18 (CACI No. 406), 57 (CACI No. 3933), and 60 (CACI No. 3960). Instruction 28 modifies CACI No. 427, which instructs on furnishing alcoholic beverages to minors in violation of Civil Code section 1714, subdivision (d). The court modified CACI No. 427 to state, in relevant part: "DEFENDANTS claim that RON BARON and/or REGINA MONTOYA are responsible for ROOKE BARON's harm because of RON BARON and/or REGINA MONTOYA furnished alcoholic beverages to her, a minor, at the home of RON BARON and REGINA MONTOYA." The remainder of the instruction states the elements of liability for furnishing a minor with alcohol.
Rooke argues the trial court erred in giving special instruction 28 because Rooke did not make a claim against Baron or Montoya for furnishing her with alcohol. Rooke further argues that Baron and Montoya are immune from liability under Civil Code section 1714. In addition, Baron, Rooke, and Montoya denied Baron furnished Rooke alcohol, other than a mere sip. Rooke argues that, everyone, with the exception of Simental, denied Montoya furnished any alcohol to Rooke. Rooke asserts similar grounds for objecting to special instructions 16 (CACI No. 401 [Basic Standard of Care]), 18 (CACI No. 406 [Apportionment of Responsibility]), 57 (CACI No. 3933 [Damages from Multiple Defendants]), and 60 (CACI No. 3960 [Comparative Fault of Plaintiff]).
We conclude there was no abuse of discretion in the trial court giving special instructions 16, 18, 28, 57, and 60, which are based on modified CACI instructions. The instructions were proper modifications of relevant CACI instructions and supported by the evidence. The court appropriately used the special instructions to instruct the jury on defendants' theory of comparative fault and apportionment of fault as to nonparties.
Although special instruction 28 is founded on Civil Code section 1714, subdivision (d), which was not in effect at the time of Rooke's sexual abuse, the instruction was nevertheless relevant to the theory of comparative fault as to Baron and Montoya providing Rooke with alcohol and making it accessible to her. Furthermore, even if the court erred in giving the instruction, such error was harmless. "[Th]ere 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." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) "Actual prejudice must be assessed in the context of the individual trial record . . . [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 arguments, and (4) any indications by the jury itself that it was misled." (Id. at pp. 580-581.) Here, there was no prejudicial error.
VII.
APPORTIONMENT OF FAULT
Rooke contends the trial court erred in providing jury instructions and special verdict questions on apportionment of fault as to Simental's intentional tort of sexually abusing Rooke. Rooke objected in the trial court by filing objections to the proposed judgment, and moving for JNOV and a new trial. The trial court denied Rooke's objections and postjudgment motions. During the trial, the jury was instructed to allocate fault among all potential tortfeasors, resulting in the jury finding Baron and Montoya comparatively at fault. The jury apportioned fault as follows: 15 percent fault to Baron; 5 percent fault to Montoya; 80 percent fault to Simental; and zero fault to Born and SCAF. The trial court therefore deducted 20 percent from Rooke's noneconomic damages.
Citing Code of Civil Procedure section 875, subdivision (d), and Civil Code section 1431.2, subdivision (a), Rooke argues that Simental's sexual assault tort should not have been subject to apportionment, as a matter of law. An intentional actor "cannot rely on someone else's negligence to shift responsibility for his or her own conduct. . . . [A] party who commits intentional misconduct should not be entitled to escape responsibility for damages based upon the negligence of the victim or a joint tortfeasor." (Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1, 6-7.) However, as the court stated in Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 136, "On the issue of apportionment of damages between one or more negligent defendants and a nonparty intentional tortfeasor, . . . a defendant may be found liable for noneconomic damages only in proportion to the total fault of all persons whose acts were a legal cause of the plaintiff's injuries, whether or not all such persons have appeared in the action, and whether their acts were intentional or negligent." (Italics added; see also Civ. Code, § 1431.2, subd. (a).)
Here, Baron and Montoya's names were therefore properly added to the modified CACI instructions, special instructions 16 (CACI No. 401), 18 (CACI No. 406), and 28 (CACI No. 427), relating to negligence and apportionment, and also included in the special verdict form section entitled, "Comparative Fault and Apportionment," which requested the jury to state the "percentage of responsibility for Rooke Baron's harm" assigned to Baron and Montoya, as well as to SCAF, Simental, and Born. Rooke was properly awarded the full amount of the economic damages, as well as the full amount of noneconomic damages attributable to Simental. There was thus no improper offset from the damages award against Simental for committing the intentional tort of childhood sexual abuse. Nonparties, such as Baron and Montoya, were appropriately listed in the special verdict section stating the percentage of responsibility of those the jury determined were at fault and whose conduct was a substantial factor in causing harm to Rooke. (Scott v. County of Los Angeles, supra, 27 Cal.App.4th at p. 136.)
During oral argument, Rooke's attorney cited Conti v. Watchtower Bible & Tract Soc'y of New York, Inc. (2015) 235 Cal.App.4th 1214, a child molestation case, for the proposition there was no comparative fault based on negligent supervision because Rooke's father and Montoya had no knowledge of the sexual abuse. Conti is distinguishable. The Conti court rejected comparative fault as to the child's parents "given the absence of any evidence they had reason to know Kendrick was a threat to her." (Conti, supra, at p. 1237.) Here, unlike in Conti, the theory of comparative fault is based on Baron and Montoya furnishing Rooke with alcohol which contributed to her harm.
We accordingly reject Rooke's contention that the trial court improperly gave jury instructions and a special verdict form requesting the jury to determine whether nonparties Baron and Montoya were at fault, and requesting the jury to determine their share of fault for Simental's intentional tort of childhood sexual abuse.
VIII.
READING BORN'S DEPOSITION TRANSCRIPT AT TRIAL
Rooke contends the trial court erred in allowing SCAF's trial attorney to read to the jury Born's deposition testimony during Born's redirect examination. Rooke argues this was improper and prejudicial because Born was not an "adverse party" under Code of Civil Procedure section 2025.620, subdivision (b), and was not an unavailable witness. Rooke complains that reading Born's deposition testimony to the jury circumvented her objections to leading questions and permitted cumulative testimony. Rooke further asserts that at the time of the deposition, Born was represented by the same attorney who represented SCAF, and overwhelming evidence demonstrated that Born was biased and motivated not to tell the truth. Rooke concludes that SCAF's attorney's reading of Born's deposition testimony during the trial was procedurally improper, the testimony was cumulative, and it was used to incite the jurors' passion to sympathize with Born and against Rooke.
There was no procedural impropriety in SCAF's trial attorney reading Born's deposition testimony to the jury. At the end of Rooke's cross-examination, SCAF's attorney requested permission to read testimony consisting of prior consistent statements made by Born during his deposition. The court permitted all counsel to preview the cited testimony and state any objections to reading it to the jury. When asked if he had any objections to it, Rooke's attorney did not state any. SCAF's attorney then read the cited portions of Born's deposition to the jury. Rooke's attorney later told the court he objected to the reading of Born's deposition testimony because SCAF's attorney had previously represented Born and therefore Born and SCAF were not adverse witnesses. The court responded that Born's deposition testimony was permissible because it was evidence of Born's prior consistent statements. (People v. Bias (1959) 170 Cal.App.2d 502, 511; Evid. Code, § 791.)
As the trial court correctly ruled, the reading of Born's deposition testimony was proper because it provided evidence of Born's prior consistent statements. "Ordinarily, prior consistent statements cannot be introduced to rebut impeaching evidence. However, one exception to this rule is the admissibility of prior consistent statements in answer to an express or implied charge that the trial testimony was recently fabricated. . . . [T]he defendant had a right to introduce this testimony 'to rebut the prosecution's charge that his story was a recent fabrication.'" (People v. Bias, supra, 170 Cal.App.2d at p. 511.) Here, Born's consistent deposition testimony statements were admissible to refute evidence Rooke introduced that Born was contemporaneously aware of Simental's sexual activity with Rooke. (Evid. Code, § 791.)
In any event, there was no prejudice in the admission of the testimony. "It is not reasonable to assume that without the rehabilitation testimony the verdicts of the jury would have been different." (People v. Bias, supra, 170 Cal.App.2d at p. 512.)
IX.
SUFFICIENCY OF EVIDENCE
Rooke argues there was insufficient evidence to support the jury's verdict in favor of SCAF and Born. We disagree.
"Where the ruling that is the subject of appeal turns on the trial court's determination of disputed facts, the appropriate standard of review on appeal is 'sufficiency of the evidence.' Evidence is sufficient if there is 'substantial' evidence to support the ruling. Such evidence 'must be reasonable in nature, credible, and of solid value. . . .'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.) "It is an oftrepeated rule that an order challenged on appeal ' is presumed correct and all intendments and presumptions are indulged to support the order on matters to which the record is silent. It is appellant's burden to affirmatively demonstrate error and, where the evidence is in conflict, [the appellate] court will not disturb the trial court's findings. [Citations.]"' (Cochran v. Rubens (1996) 42 Cal.App.4th 481, 486, quoting Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.)
Born's defense judgment is founded on the jury's special verdict findings that Born did not have contemporaneous knowledge of Simental's sexual relationship with Rooke and he was not negligent. SCAF's defense judgment is founded on the jury's special verdict findings that SCAF did not negligently supervise or retain Simental and SCAF was not negligent. Rooke argues there was insufficient evidence to support the jury's special verdict finding that Born had no contemporaneous knowledge of Simental's sexually abusive conduct.
We conclude, to the contrary, there was substantial evidence. Such evidence includes evidence that Born consistently denied having any contemporaneous knowledge of Simental's sexual relationship with Rooke. Born testified he went to sleep in Baron's living room and when he woke up, Simental was always present. Born did not suspect anything was going on between Simental and Rooke. Born did not see any groping or holding hands. During Simental's first deposition in 2012, he denied he ever told Born he was having sex with Rooke. Then later, he contradicted himself in his declaration opposing SCAF's summary judgment motion. Born testified at trial that Simental told Born he was changing his previous statement that Born had no knowledge of the sexual abuse because Rooke wanted to keep SCAF in the case.
Additional evidence demonstrating that Born did not have contemporaneous knowledge of Simental and Rooke's sexual activities included Simental's testimony that Simental did not display signs of affection for Rooke in Born's presence, and Simental's testimony that he noticed Born was asleep when Simental entered Rooke's bedroom the first time Simental had sex with Rooke. Rooke also testified that Simental and Rooke made a concerted effort to conceal their sexual activities with each other. Born testified he never saw Simental enter Rooke's bedroom and, when Born awoke in the middle of the night, he always saw Simental asleep in the living room. Born's lack of knowledge of Rooke and Simental's ongoing sexual relationship is further demonstrated by Rooke and Baron not identifying Born to the police or district attorney as someone who had any information about Simental sexually abusing Rooke.
Although there may have been evidence supporting a finding that Born had contemporaneous knowledge of Simental's sexual relationship with Rooke, there was also substantial evidence to the contrary. We may not reweigh the evidence, and "will not disturb the finding of the trier of fact if there is substantial evidence in the record in support thereof. [Citations.] It is not the province of the reviewing court to analyze conflicts in the evidence. [Citation.] Rather, when a finding of fact is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence contradicted or uncontradicted, which will uphold the disputed finding. [Citation.]" (Berniker v. Berniker (1947) 30 Cal.2d 439, 444.) Here, the evidence was more than sufficient to support the defense verdict in favor of SCAF and Born.
X.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. FIELDS
J.