Mediation Message No. 90

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 90

OTHER CONDUCT EVIDENCE

Since Pantoja v. Anton (2011) 198 Cal.App.4th 87 held that an employer’s sexual harassment of employees other than the plaintiff was relevant, pursuant to Evid. Code sec. 1101, subd. (b), to prove both gender bias and to rebut defense assertions that the employer had a policy of not tolerating harassment (id. at p. 116), it has become popular to refer to such testimony as “me too” evidence. (See, for example, Hatai v. Department of Transportation (2013) 214 Cal.App.4th 1287.) The purpose of this Mediation Message is to advise that the term “me too” does not adequately describe the scope of such evidence; to remind that section 1101, subd. (b) applies to both plaintiffs and defendants and inform that “other act” evidence may also be admissible if relevant and not prejudicial under Evid. Code sec. 352.
Before Pantoja, 1101, subd. (b) was generally the province of criminal prosecutors who often used its language to introduce evidence that defendants had committed acts, in addition to the charged crimes, to help prove their identities, intents, respective knowledge or modus operandi in committing the charged offenses. No published criminal opinions, of the many that discussed the subject, used the term “me too” evidence. That language appears to be limited to claims by witnesses on behalf of plaintiffs in employment cases who testify that they too (“me too” colloquially) were subjected to the same wrongdoing alleged by the plaintiff. But, since 1101. subd. (b) does not limit “other conduct” evidence to just wronged employees (see, for example, reference in the statute to “absence of mistake or accident”), the description “me too” is misleading and too limited.
Nor does section 1101, subd. (b) provide that “other conduct” evidence shall be used only by plaintiffs and not defendants. Thus, for example, in an employment case where the employee might claim that he was terminated for filing a workers’ compensation claim for a work-related injury, it seems appropriate that the employer could introduce evidence it had never retaliated against multiple other employees who had filed similar claims.
Then, there’s Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740 which allows both the employee and employer to use declarations by non-party employees to support and oppose a motion for summary judgment. However, rather than rely on section 1101, subd. (b) to test the admissibility of this evidence, Johnson simply held it admissible if relevant and not prejudicial under Evidence Code section 352. (Id. at p. 767.)
There’s precedent in the criminal law for the relevance plus section 352 approach when the “other conduct” evidence is part of the crime at issue rather than totally unrelated, such as the commission of an uncharged but similar crime on a different date. In the former instances, the evidence is admissible, not because it conforms to section 1101, subd. (b), but because it’s part of the res gestae of the case being tried. (See People v. Marshall (1964) 226 Cal.App.2d 243, 244-245 [defendant's uncharged sales of heroin around the same time frame as the charged sale were part of his short and unified sales program]; see also United States v. Beckman (9th Cir. 2002) 298 F.3d 788, 793–794 holding that acts “inextricably intertwined” with the charged offense are not subject to Federal Rule of Evidence 404(b) analysis. In Beckman, the defendant’s prior drug use was “necessary to provide a ‘coherent and comprehensible story’ regarding the (drug) crimes for which he was charged.”)
In civil matters, like criminal cases, other acts related to the claims, whether they be employment, business, real property or personal injury, are admissible if relevant and not prejudicial, pursuant to section 352. For example, a defendant’s use of a cell phone while driving is admissible if it distracted the defendant and arguably caused the accident. Section 1101, subd. (b) comes into play if the plaintiff attempts to show that the defendant had been involved in another, unrelated accident while also using a cell phone. Likewise, in a harassment, retaliation or wrongful termination claim, the employer’s good or bad treatment of other employees at the same business is relevant, as in Johnson, to provide a “coherent” picture. Section 1101, subd. (b) is applicable only when the plaintiff attempts to prove the defendant acted similarly when it operated an unrelated company or where the defendant offers to show it acted properly when running an uninvolved business.
As Johnson notes, relevant evidence is subject to 352 analysis, just as is 1101, subd. (b), but its admissibility depends simply on whether it is relevant and not for the purpose, as section 1101, subd. (b) provides, of establishing that the other conduct and the alleged wrong or breach are sufficiently similar to support an inference that they are manifestations of the same “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” (Id.) As a result, the burden for the moving party, when using the relevance standard, is less onerous and less complicated for the court in ruling on its admissibility.

MDM’s helpful hints:
• Both plaintiffs and defendants in civil cases may take advantage of either Evid. Code section 1101, subd. (b) or the Johnson approach (is the evidence relevant and not prejudicial?).
• It is less burdensome and complicated to use the relevance plus 352 analysis when the “other conduct” evidence is part of the totality of circumstances surrounding the alleged wrong or breach.
• Use the term “other conduct” rather than “me too” to describe evidence that you intend to introduce pursuant to 1101, subd. (b) or Johmson; “me too” is like chalk on a board.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, August 2013

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