Filed 10/8/26 Medina v. Montebello Unified School Dist. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
WALTHER MEDINA, B344307
Plaintiff and Appellant, (Los Angeles County Super.
Ct. No. 19STCV39485)
v.
ORDER MODIFYING
MONTEBELLO UNIFIED OPINION
SCHOOL DISTRICT et al., (No change in the appellate
judgment)
Defendants and
Respondents.
THE COURT:
It is ordered that the opinion filed herein on September 17,
2026 be modified as follows:
On the caption page, Daniel S. Modafarri is corrected to:
Daniel S. Modafferi.
There is no change in the appellate judgment.
____________________________________________________________
MARTINEZ, P. J. SEGAL, J. FEUER, J.
Filed 9/17/26 Medina v. Montebello Unified School Dist. CA2/7 (unmodified opn.)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
WALTHER MEDINA, B344307
Plaintiff and Appellant, (Los Angeles County Super.
Ct. No. 19STCV39485)
v.
MONTEBELLO UNIFIED
SCHOOL DISTRICT et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Maurice A. Leiter, Judge. Affirmed.
Law Office of Michael Freiman and Michael Freiman for
Plaintiff and Appellant.
Fozi Dwork & Modaferri and Daniel S. Modaferri for
Defendant and Respondent Montebello Unified School District.
Baute Crochetiere Hartley & McCoy, Mark D. Baute and
Mathew Ralph Santiago for Defendant and Respondent Anthony
Martinez.
_______________________________
INTRODUCTION
Walther Medina met Anthony Martinez when Medina was
30 years old and trying to earn a living as a nightclub singer.
Medina didn’t have a high school diploma, and his job prospects
were limited. Martinez, then superintendent of Montebello
Unified School District, mentored Medina, encouraged him to
complete his high school education or pass an equivalency exam,
helped him enroll in the District’s adult school, and gave him
financial support when he enrolled in classes during the summer
of 2019.
Martinez and Medina became friends, and Martinez
frequently gave Medina gifts and money. One night in
August 2019 Medina and Martinez drank tequila together at
Martinez’s home. What happened next is the subject of this
lawsuit. Martinez remembered very little about the evening. He
did recall, however, that he was intoxicated, that Medina helped
him into his bedroom and into bed, and that Medina stood over
him with his genitals exposed. Medina claimed that, while he
helped Martinez into bed, Martinez pulled Medina’s pants down
and stroked Medina’s genitals.
Six weeks later Medina filed this action against Martinez
and the District, alleging violation of the Ralph Civil Rights Act
of 1976 (Civ. Code, § 51.7; Ralph Act);1 sexual battery; gender
violence (§ 52.4); violation of the Unruh Civil Rights Act (§ 51;
Unruh Act); violation of the Tom Bane Civil Rights Act (§ 52.1;
Bane Act); intentional infliction of emotional distress; negligence;
and violation of Education Code section 220. Medina alleged that
1 Undesignated section references are to the Civil Code.
2
Martinez sought a sexual relationship with him in exchange for
money and education services from the District and that
Martinez eventually sexually assaulted him. The trial court
resolved most causes of action against Medina on demurrer or on
summary adjudication. A few causes of action proceeded to a
trial, and the jury found against Medina.
Medina’s challenges to the trial court’s rulings on the
defendants’ demurrers and motions for summary adjudication,
which (i.e., the challenges) are cursory and lack citations to
relevant legal authority or the record, are forfeited, without
merit, or both. Regarding the trial, Medina argues the trial court
abused its discretion in excluding a secret recording Medina
made of a three-hour conversation he had with Martinez
two days after the tequila-drinking session. Because Penal Code
section 632 prohibits a party in a civil case from introducing
evidence of illegally recorded communications, the court did not
abuse its discretion in excluding that evidence. Therefore, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Martinez Goes to a Restaurant and Meets Medina
In March 2019 Martinez met Medina while attending a
birthday party at a restaurant. Medina, who was 30 years old at
the time, sang at the restaurant, including a song Martinez
requested.
Martinez later contacted Medina through a social media
platform and wished him well with his singing career. Medina
responded that, because singing did not pay enough, he needed
additional work. After some additional messaging Martinez gave
3
Medina contact information for a relative who ran a landscaping
company. Medina contacted Martinez’s relative and began
working for him.
B. Medina and Martinez Develop a Personal
Relationship; Martinez Gives Medina Gifts, Money,
and More Work
Martinez took an interest in Medina and encouraged him to
complete his high school education or pass a high school
equivalency examination. Martinez helped Medina enroll at the
adult school operated by the District and select courses to take
during the summer session. Medina completed three courses at
the adult school between July 1, 2019 and August 9, 2019.
Martinez and Medina became friends, and they frequently
met for drinks and meals. Martinez gave Medina gifts, including
money, designer accessories, and clothing. Martinez eventually
hired Medina to work for Martinez’s elderly father and paid
Medina $2,000 a month for that service. Medina sometimes
referred to these payments as his “allowance.”
C. Medina Asks Martinez To Drink Tequila with Him;
Martinez Becomes Intoxicated and Medina’s Genitals
Are Exposed
On August 20, 2019 Medina and Martinez made a plan to
drink tequila and go out to dinner. They met at Martinez’s home,
where Medina could also do some work for Martinez’s father that
evening. After drinking several shots of tequila Martinez (but
not Medina) became intoxicated. Martinez told Medina he was
not feeling well, and Medina helped Martinez walk to his
bedroom so Martinez could lie down on his bed. According to
4
Medina, as he helped Martinez into bed, Martinez pulled down
Medina’s pants and briefly stroked his penis. Martinez, who
recalled few details from the evening, remembered waking in his
bed while Medina stood over him with his genitals exposed.
The following day Medina asked Martinez to give him
September’s “allowance” early and arranged to go to Martinez’s
house to pick up the money. Medina went to the house at
approximately 9:45 p.m. with his daughter. Martinez greeted
Medina at the front door. Medina said that, instead of shaking
hands, Martinez grabbed Medina’s crotch. Martinez said his
hand accidentally grazed Medina’s leg as he greeted Medina with
a hug.
D. Medina and Martinez Have a Three-hour
Conversation, Which Medina Records Without
Martinez’s Consent
Medina and Martinez got together again on August 22,
2019. The two men had a lengthy, three-hour conversation about
what happened at Martinez’s house on August 20, 2019. The
conversation started at a coffee shop, then moved to Medina’s car.
Without Martinez’s knowledge or consent, Medina recorded the
entire conversation.
E. Medina Sues Martinez and the District
On November 1, 2019 Medina sued Martinez and the
District alleging eight causes of action against both of them:
violations of the Ralph Act, Bane Act, and Unruh Act; sexual
battery; gender violence; intentional infliction of emotional
5
distress; negligence; and violation of Education Code section 220.2
Medina alleged that Martinez wanted a sexual relationship with
him in exchange for money and education services from the
District and that, after gaining Medina’s trust, Martinez sexually
assaulted Medina.3
F. The Trial Court Sustains the District’s Demurrer to
Medina’s Gender Violence Cause of Action Without
Leave To Amend
The District demurred to two causes of action in the
operative second amended complaint. The District argued,
among other things, it could not be vicariously liable for gender
violence because under section 52.4, subdivision (e), an employer
cannot be liable for gender violence unless the employer
personally committed an act of gender violence. Medina opposed
the demurrer. The trial court agreed with the District and
2 Education Code section 220 provides: “No person shall be
subjected to discrimination on the basis of disability, gender,
gender identity, gender expression, nationality, race or ethnicity,
religion, sexual orientation, or any other characteristic that is
contained in the definition of hate crimes . . . in any program or
activity conducted by an educational institution that receives, or
benefits from, state financial assistance, or enrolls pupils who
receive state student financial aid.”
3 Martinez filed a cross-complaint against the District
seeking indemnity and declaratory relief. Martinez later
dismissed the cross-complaint with prejudice.
6
sustained the demurer to Medina’s gender violence cause of
action without leave to amend.4
G. The Trial Court Grants Martinez’s Motion for
Summary Adjudication on Two of Medina’s Causes of
Action
Martinez filed a motion for summary adjudication on
Medina’s causes of action for violation of the Bane Act and for
negligence. Observing a violation of the Bane Act requires the
defendant to interfere with the plaintiff’s legal rights, Martinez
argued Medina had not identified in his operative complaint any
legal right Martinez interfered with. Regarding Medina’s
negligence cause of action, Martinez argued Medina could not
establish Martinez owed Medina a duty of care. Medina did not
address either argument in his opposition to the motion. The
trial court agreed with Martinez and granted his motion for
summary adjudication on Medina’s Bane Act and negligence
causes of action.5
4 The court also sustained without leave to amend the
District’s demurrer to Medina’s cause of action for violation of the
Unruh Act. Medina does not challenge that ruling.
5 The trial court also granted Martinez’s motion for summary
adjudication on Medina’s causes of action for violation of the
Unruh Act and Education Code section 220. Medina does not
challenge those rulings either.
7
H. The Trial Court Grants the District’s Motion for
Summary Adjudication on Five of Medina’s Causes of
Action
The District filed a motion for summary adjudication on
Medina’s causes of action for violation of the Ralph Act, violation
of the Bane Act, sexual battery, intentional infliction of emotional
distress, and negligence. The District argued that Government
Code section 815 immunized it from tort liability and that,
because any sexual misconduct by Martinez was outside the
scope of his employment, the District could not be vicariously
liable for Martinez’s actions. The District argued in the
alternative that Martinez’s relationship with Medina was
personal, not professional, and that the District was not liable for
any actions taken by Martinez on his personal time. Medina
opposed the motion, arguing that Martinez was not only the
District’s superintendent but also its chief of police and that the
District was aware of (and permitted) Martinez’s unlawful
behavior.
The trial court granted the District’s motion for summary
adjudication. The court ruled that, because an employee’s acts of
sexual misconduct are usually outside the scope of employment,
an employer is generally not vicariously liable for those acts. The
court ruled that, because much of the relationship between
Medina and Martinez occurred outside business hours and in
private, the District was not vicariously liable for any tortious
conduct Martinez engaged in against Medina. The court also
ruled that, though there is a limited exception to the bar against
employer vicarious liability where a law enforcement officer
engages in sexual misconduct against a detainee, the exception
did not apply because Medina did not present any evidence
8
Martinez acted as a law enforcement officer in his relationship
with Medina.
I. The Jury Finds in Favor of Martinez and the District
on Medina’s Remaining Causes of Action
The trial court conducted a five-day jury trial on Medina’s
remaining causes of action: violation of the Ralph Act, sexual
battery, gender violence, and intentional infliction of emotional
distress against Martinez; and violation of Education Code
section 220 against the District. Martinez and Medina testified
about their relationship and the events of August 2019, and much
of their testimony related to text messages they exchanged. The
messages often evidenced Medina’s requests for money from
Martinez. On one occasion Medina asked Martinez for
almost $900 and sent Martinez numerous images (primarily
cartoon characters with the caption “please” and a photograph of
Medina making a sad face with the comment, “my sad cat eyes”)
by text pleading for help. On multiple occasions Martinez sent
Medina the money he asked for.
The messages also showed a level of intimacy in the
relationship. Medina told Martinez that he looked “handsome”
during a television appearance, that Martinez was a “superstar,”
and that Martinez was Medina’s “knight in shining armor.” On
one occasion Medina sent Martinez a photograph of his clothed
crotch area, and on the evening of August 20, 2019 Medina sent
Martinez a photograph of himself and a photograph of a shirtless
man. And at some point during the evening of August 20, 2019
Medina wrote “you are awesome” on Martinez’s hand. On
August 21, 2019 (the day after the first alleged sexual assault)
Medina sent Martinez a picture of their hands clasped together,
9
with the phrase showing the comment “awesome conversation
night.”
The jury found against Medina and in favor of Martinez
and the District on all remaining causes of action. The trial court
entered judgment against Medina and in favor of the
two defendants. Medina timely appealed.
J. The Court Denies Medina’s Motion for a New Trial,
and Medina Appeals
Medina filed a motion for a new trial on the grounds the
trial court “erroneously excluded evidence at trial and otherwise
disposed of [Medina’s] other claims through demurrer and
summary adjudication.” The supporting one-and-a-half-page
memorandum of points and authorities did not discuss relevant
legal authority or analyze the legal issues. The court denied the
motion for a new trial, stating Medina “provides no authority or
analysis discussing why the Court’s ruling at trial [regarding the
recording] was erroneous” and “simply asks the Court to change
its rulings, without explaining why [Medina] believes the Court
erred.”
DISCUSSION
A. Medina’s Argument the Trial Court Erred in
Sustaining the District’s Demurrer to the Gender
Violence Cause of Action Is Forfeited and Meritless
1. Standard of Review
“‘In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
10
facts sufficient to state a cause of action under any legal theory.’”
(Mathews v. Becerra (2019) 8 Cal.5th 756, 768; accord, Nichols v.
Alghannam (2026) 118 Cal.App.5th 726, 732-733; Childhelp,
Inc. v. City of Los Angeles (2023) 91 Cal.App.5th 224, 234.) We
“‘accept the truth of material facts properly pleaded in the
operative complaint, but not contentions, deductions, or
conclusions of fact or law.’” (Capito v. San Jose Healthcare
System, LP (2024) 17 Cal.5th 274, 280; accord, Nichols, at p. 733.)
We “‘accept as true even the most improbable alleged facts, and
we do not concern ourselves with the plaintiff’s ability to prove
[the] factual allegations.’” (Bath v. State of California (2024)
105 Cal.App.5th 1184, 1193; see River’s Side at Washington
Square Homeowners Assn. v. Superior Court (2023)
88 Cal.App.5th 1209, 1227 [“‘No matter how unlikely or
improbable, plaintiff’s allegations must be accepted as true for
the purpose of ruling on the demurrer.’”].) “We liberally construe
the pleading with a view to substantial justice between the
parties.” (Stella v. Asset Management Consultants, Inc. (2017)
8 Cal.App.5th 181, 190.)
“When a trial court has sustained a demurrer without leave
to amend, ‘we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm.’ [Citation.] ‘The
burden of proving such reasonable possibility is squarely on the
plaintiff.’” (Nichols v. Alghannam, supra, 118 Cal.App.5th at
p. 733; see King v. CompPartners, Inc. (2018) 5 Cal.5th 1039,
1050.) ““‘‘While such a showing can be made for the first time to
the reviewing court [citation], it must be made.’”’” (Childhelp,
11
Inc. v. City of Los Angeles, supra, 91 Cal.App.5th at p. 235; see
Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 608.)
2. Applicable Law re Gender Violence
Section 52.4 authorizes a private right of action against any
person that engages in “gender violence,” defined as either
“(1) One or more acts that would constitute a criminal offense
under state law that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, committed at least in part based on the gender of the
victim, whether or not those acts have resulted in criminal
complaints, charges, prosecution, or conviction. [Or]
[¶] (2) A physical intrusion or physical invasion of a sexual
nature under coercive conditions, whether or not those acts have
resulted in criminal complaints, charges, prosecution, or
conviction.” (§ 52.4, subd. (c); see Doe v. Kachru (2025)
115 Cal.App.5th 175, 203 [section 52.4 “is a civil rights statute
directed at those who perpetrate or threaten violence and are
motivated to do so by some discriminatory bias or animus based
on the victim’s gender”].) The statute does not create a right of
action against an employer for gender violence committed by an
employee: “Notwithstanding any other laws that may establish
the liability of an employer for the acts of an employee, this
section does not establish any civil liability of a person because of
his or her status as an employer, unless the employer personally
committed an act of gender violence.” (§ 52.4, subd. (e).)
3. Medina Forfeited His Argument
Medina argues the trial court erred in sustaining the
District’s demurrer to his gender violence cause of action. By
12
failing to provide any analysis supported by relevant legal
authority, however, Medina forfeited the argument.
We presume the trial court’s judgment or order is correct,
and the appellant has the burden to affirmatively demonstrate
error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; accord,
Family Violence Appellate Project v. Superior Court (Aug. 10,
2026, S288176) ___ Cal.5th ___, ___ [2026 WL 2291541, p. 1]; see
Brockman v. Kaiser Foundation Hospitals (2025) 114 Cal.App.5th
569, 588 [“an order of the lower court is presumed correct—that
is, all intendments and presumptions are indulged to support it
on matters as to which the record is silent—and the appellant
must affirmatively demonstrate prejudicial error”].) An
appellant forfeits an argument by failing to support it with
“reasoned argument and citations to authority . . . .” (AmeriGas
Propane, L.P. v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th
981, 1001, fn. 4; see Coziahr v. Otay Water Dist. (2024)
103 Cal.App.5th 785, 799 [“Points must be supported by reasoned
argument, authority, and record citations, or may be deemed
forfeited.”]; Lee v. Kim (2019) 41 Cal.App.5th 705, 721
[appellant’s “burden on appeal ‘includes the obligation to present
argument and legal authority on each point raised’”].)
In his opening brief Medina includes one paragraph
challenging the trial court’s ruling on the District’s demurrer to
his gender violence cause of action. After describing the
procedural posture and the court’s ruling, Medina asserts:
“However, Plaintiff’s Second Amended Complaint explains how
Dr. Martinez’s conduct—as the Superintendent and Chief of
Police of [the District] and the center of [the District’s]
racketeering enterprise—constitutes the conduct of [the District]
such that it should be liable for gender violence.” Medina then
13
cites two lines of his opposition to the District’s demurrer
(essentially the same sentence in his opening brief) and the
five pages of general allegations in the operative complaint. That
is all. Medina does not discuss the statutory requirements for a
gender violence cause of action. (He doesn’t even cite the
statute.) He does not discuss the allegations in his complaint or
explain why those allegations were sufficient to constitute a
cause of action for gender violence. By failing to make a reasoned
argument supported by citations to relevant authority, Medina
forfeited his argument the trial court erred in sustaining the
District’s demurrer to the gender violence cause of action.
4. Medina’s Argument Lacks Merit
Forfeiture aside, Medina’s argument the trial court erred in
sustaining the District’s demurrer to his gender violence cause of
action lacks merit. As stated, section 52.4 does not authorize a
private right of action against an employer unless the employer
personally committed an act of gender violence. (§ 52.4,
subd. (e).) Because Medina did not allege the District—as
opposed to Martinez—committed an act of gender violence, and
because Medina did not identify any other basis for the District’s
liability under section 52.4, the trial court did not err in
sustaining the District’s demurrer to the gender violence cause of
action.
Nor has Medina shown the trial court abused its discretion
in sustaining the District’s demurrer without leave to amend.
“The onus is on the plaintiff to articulate the ‘specifi[c] ways’ to
cure the identified defect, and absent such an articulation, a trial
or appellate court may grant leave to amend ‘only if a potentially
effective amendment [is] both apparent and consistent with the
14
plaintiff’s theory of the case.’” (Schaeffer v. Califia Farms, LLC
(2020) 44 Cal.App.5th 1125, 1145; see Summerfield v. City of
Inglewood (2023) 96 Cal.App.5th 983, 1000 [“‘The burden of
showing that a reasonable possibility exists that amendment can
cure the defects remains with the plaintiff; neither the trial court
nor this court will rewrite a complaint.’”].) Where, as here, “‘the
appellant offers no allegations to support the possibility of
amendment and no legal authority showing the viability of new
causes of action, there is no basis for finding the trial court
abused its discretion when it sustained the demurrer without
leave to amend.’” (Summerfield, at p. 1000.) Medina does not
explain how he could amend his complaint to cure its defects.
And in the trial court Medina did not indicate how he could
amend his complaint to state a cause of action against the
District under section 52.4.
B. The Trial Court Did Not Err in Granting the Motions
by Martinez and the District for Summary
Adjudication
1. Applicable Law and Standard of Review
“‘“A motion for summary judgment or summary
adjudication is properly granted only when ‘all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.’”’” (Nargizyan v. State Farm General Ins. Co.
(2026) 120 Cal.App.5th 581, 593; see Code Civ. Proc., § 437c,
subd. (c); Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607, 618.) “‘A defendant seeking summary
judgment must show that the plaintiff cannot establish at least
15
one element of the cause of action.’” (Fajardo v. Dailey (2022)
85 Cal.App.5th 221, 225; see Regents, at p. 618; Sgaraglino v.
County of Ventura (2026) 121 Cal.App.5th 16, 22.) “‘Only after
the defendant carries that initial burden does the burden shift to
the plaintiff “to show that a triable issue of one or more material
facts exists as to the cause of action or a defense thereto.”’”
(Campbell v. FPI Management, Inc. (2024) 98 Cal.App.5th 1151,
1162; accord, Sgaraglino, at p. 22.) “There is a triable issue of
material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion . . . .” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850; see Landis’ Labyrinth, Inc. v.
Whitaker (2025) 116 Cal.App.5th 724, 735.)
“‘“‘“We review the trial court’s decision de novo, considering
all the evidence set forth in the moving and opposing papers
except that to which objections were made and sustained.”’
[Citation.] We liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.”’” (Hampton v. County of
San Diego (2015) 62 Cal.4th 340, 347; see De Meo v. Cooley LLP
(2025) 115 Cal.App.5th 17, 28; Wawrzenski v. United Airlines,
Inc. (2024) 106 Cal.App.5th 663, 684.)
2. The Trial Court Did Not Err in Granting
Martinez’s Motion for Summary Adjudication
on Medina’s Cause of Action for Violation of the
Bane Act
Martinez moved for summary adjudication on Medina’s
cause of action for violation of the Bane Act on two grounds,
one of which was that in his operative complaint Medina did not
16
identify any constitutional or statutory right Martinez interfered
with. “‘When a motion for summary judgment is used to test
whether the complaint states a cause of action, the court will
apply the rule applicable to demurrers and accept the allegations
of the complaint as true.’” (American Airlines, Inc. v. County of
San Mateo (1996) 12 Cal.4th 1110, 1118; accord, Gilead Tenofovir
Cases (2026) 20 Cal.5th 390, 450.) Where, as here, the motion for
summary adjudication challenges the sufficiency of the
allegations of the complaint, “we review de novo the question of
law whether [the plaintiff’s] complaint alleged sufficient essential
facts to acquaint [the defendant] with the nature, source, and
extent of” the challenged cause of action. (Prue v. Brady
Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1378.)
To prevail on a cause of action under the Bane Act, the
“‘plaintiff must show (1) intentional interference or attempted
interference with a state or federal constitutional or legal right,
and (2) the interference or attempted interference was by threats,
intimidation or coercion.’” (Animal Protection & Rescue League,
Inc. v. County of Riverside (2025) 111 Cal.App.5th 914, 920; see
§ 52.1, subd. (c); Shoyoye v. County of Los Angeles (2012)
203 Cal.App.4th 947, 956 [a defendant is liable under the Bane
Act “if he or she interfered with or attempted to interfere with
the plaintiff’s constitutional rights by the requisite threats,
intimidation, or coercion”].) Martinez argued Medina did not
identify, in his operative complaint or anywhere else, any
constitutional or statutory right with which Martinez purportedly
interfered. Medina did not address the issue in his opposition to
the motion for summary adjudication. The trial court reviewed
the operative complaint and concluded that, because the pleading
17
did “not specify legal rights with which Martinez interfered,” the
Bane Act cause of action “cannot be established.”
Because Medina did not allege Martinez interfered with a
statutory or constitutional right, the trial court did not err in
granting the motion for summary adjudication on Medina’s
Bane Act cause of action. Medina alleged Martinez helped
Medina and gained Medina’s trust “as a means of forcing him to
engage in a sexual relationship in an unlawful quid pro quo.”
Medina alleged Martinez “subjected [Medina] to romantic
messages verbally and in writing, sexual discussion, taking
pictures of [Medina], hugging [Medina], touching other parts of
his body, and other unwelcomed sexual advances including
without limitation asking [Medina] to take his pants off in
Martinez’s office at the school district.” Medina also alleged
Martinez sexually assaulted him twice, once “by forcibly grabbing
his genitals and performing an unwelcomed sexual act” and a
second time by “forcibly grabbing [Medina’s] genitals” at
Martinez’s home. Medina alleged that, as a result of Martinez’s
conduct, he “was forced to terminate his education within the
Montebello School District.” Medina also alleged “[d]efendants’
[sic] were severe, pervasive, offensive, and deprived [Medina] of
the right to equal access and educational benefits and
opportunities.” But Medina did not allege that any statutory or
constitutional provision granted him the right to “equal access” or
“educational benefits and opportunities.” Nor has he identified
any such right on appeal.
Medina’s challenge to the trial court’s ruling consists of a
single sentence: “However, both in Plaintiff’s Second Amended
Complaint and in the evidence presented to the Court in
opposition to the motion, Plaintiff showed that Defendant
18
Martinez’s sexual assault interfered with Plaintiff’s rights to be
free from sexual assault and to attend a public school, which
Plaintiff was forced to end as a result of the assault.” In support
of this assertion, Medina cites, among other things, a 750-page
document titled “Compendium of Evidence” that consists of
three deposition transcripts (one volume of Martinez’s deposition
and two volumes of Medina’s deposition).
Medina’s argument is triply forfeited. First, Medina did
not make it in the trial court. (See Cabatit v. Sunnova Energy
Corp. (2020) 60 Cal.App.5th 317, 322 [“If a party fails to raise an
issue or theory in the trial court, we may deem consideration of
that issue or theory forfeited on appeal.”]; Jackpot Harvesting
Co., Inc. v. Superior Court (2018) 26 Cal.App.5th 125, 155
[“arguments not raised in summary judgment proceedings” are
forfeited].) Second, Medina does not cite any legal authority in
support of his argument. (See Siskiyou Hospital, Inc. v. County of
Siskiyou (2025) 109 Cal.App.5th 14, 39 [“[t]he absence of
reasoned legal argument supported by citation to authority
allows this court to treat the contention as forfeited”]; Audish v.
Macias (2024) 102 Cal.App.5th 740, 751 [to demonstrate error,
“‘“an appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the
record”’”].) Third, he did not support the argument with
appropriate citations to the record. (See L.O. v. Kilrain (2023)
96 Cal.App.5th 616, 620 [appellant “forfeited any argument that
the challenged orders were erroneously issued” because he “failed
to appropriately cite the record”].) A party must support every
factual assertion with a citation to the page number of the
transcript or appendix where the matter appears. (Cal. Rules of
Court, rule 8.204(a)(1)(C); see Pagan v. City of San Rafael (2026)
19
119 Cal.App.5th 853, 865 [“‘[t]he purpose of this requirement is to
enable appellate justices and staff attorneys to locate relevant
portions of the record quickly”’].) Medina’s block reference to a
750-page section of the appendix, consisting of three entire
deposition transcripts, is not sufficient. (See Nazari v.
Ayrapetyan (2009) 171 Cal.App.4th 690, 694, fn. 1 [“Plaintiff’s
single citation to a reporter’s transcript with block page
references, for example, ‘RT Vol 6, 2480-2501,’ frustrates this
court’s ability to evaluate which facts a party believes support his
position, particularly when a large portion of that citation
referred to points that appeared to be irrelevant.”].)
3. The Trial Court Did Not Err in Granting
Martinez’s Motion for Summary Adjudication
on Medina’s Cause of Action for Negligence
Martinez moved for summary adjudication on Medina’s
negligence cause of action on the ground Medina could not
establish Martinez owed him a duty of care. “To establish a
cause of action for negligence, the plaintiff must show that the
‘defendant had a duty to use due care, that he breached that
duty, and that the breach was the proximate or legal cause of the
resulting injury.’” (Brown v. USA Taekwondo (2021) 11 Cal.5th
204, 213; accord, C.F. v. Alternative Family Services, Inc. (2026)
120 Cal.App.5th 1208, 1229-1230.) “Whether a duty exists is a
question of law to be resolved by the court.” (Brown, at p. 213;
see Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 769, 772-
774; C.F., at p. 1230.)
Martinez argued in his motion for summary adjudication
that, though every person must exercise reasonable care in his or
her activities, a person is generally not liable for negligence in
20
the absence of a special relationship with the plaintiff or some
other circumstance that creates an affirmative duty to protect the
plaintiff. Martinez argued the “personal and charitable
relationship” between himself and Medina did not create any
special duty of care toward Medina. Martinez submitted
evidence that he helped Medina find employment, enroll in the
District’s adult school, and select classes; that he and Medina
socialized by visiting bars and restaurants together; and that he
gave Medina clothing and loaned him money. Medina did not
dispute those facts. Medina also did not address the negligence
cause of action against Martinez in his opposition. In reply,
Martinez argued that, because Medina in his opposition to the
motion did not identify any duty of care Martinez owed Medina,
Medina effectively conceded there was no such duty. Martinez
also argued Medina’s negligence cause of action failed because
Medina based all of his causes of action, including his cause of
action for negligence, on allegations Martinez committed
intentional and deliberate (i.e., not negligent) acts of sexual
misconduct.
The trial court granted Martinez’s motion for summary
adjudication on Medina’s negligence cause of action. The court
ruled it was “unclear from the operative complaint and
[Medina’s] opposing papers what facts [Medina] believes
establish the tort of negligence against Martinez.” And by failing
to address the issue in his opposition brief, the court concluded,
Medina “has not shown a triable issue of fact as to negligence.”
Medina argues only that “it’s clear from Plaintiff [sic] facts
presented that Defendant Martinez did owe a duty of care to
Plaintiff as a human being, superintendent, and chief of police,
and violated such duty of care by gaining Plaintiff’s trust and
21
then sexually assaulting the Plaintiff.” Medina’s analysis is just
as cursory as his argument in support of his Bane Act cause of
action. And again his argument is triply forfeited. Medina did
not make it in the trial court. (See Cabatit v. Sunnova Energy
Corp., supra, 60 Cal.App.5th at p. 322.) Medina does not cite any
legal authority in support of his argument. (See Siskiyou
Hospital, Inc. v. County of Siskiyou, supra, 109 Cal.App.5th at
p. 39.) And he did not support the argument with appropriate
citations to the record. (See Meridian Financial Services, Inc. v.
Phan (2021) 67 Cal.App.5th 657, 684 [“[t]he reviewing court is
not required to develop the parties’ arguments or search the
record for supporting evidence and may instead treat arguments
that are not developed or supported by adequate citations to the
record as waived”].)
4. The Trial Court Did Not Err in Granting the
District’s Motion for Summary Adjudication on
Medina’s Five Causes of Action Against the
District Based on Vicarious Liability
The District moved for summary adjudication of Medina’s
causes of action for violation of the Ralph Act, violation of the
Bane Act, sexual battery, intentional infliction of emotional
distress, and negligence. The District argued that, even if
Martinez sexually assaulted Medina as alleged in his complaint,
those acts were outside the scope of Martinez’s employment.
Therefore, the District contended, it could not be vicariously
liable for those acts as a matter of law.
A public entity like the District is immune from tort
liability except as provided by statute. (Gov. Code, § 815,
subd. (a); Leon v. County of Riverside (2023) 14 Cal.5th 910, 918;
22
Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th
113, 126, fn. 4.) Government Code section 815.2 makes a public
entity vicariously liable for injuries proximately caused by an
employee acting in the scope of his or her employment if the
employee’s act or omission gives rise to a cause of action against
the employee (i.e., if the employee is not immune from liability).
(Gov. Code, § 815.2, subds. (a), (b); see Leon, at p. 918.) Courts
analyzing vicarious liability generally interpret “scope of
employment” broadly. “For example, ‘[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, acts necessary to the comfort,
convenience, health, and welfare of the employee while at work,
though strictly personal and not acts of service, do not take the
employee outside the scope of employment.’” (Farmers Ins. Group
v. County of Santa Clara (1995) 11 Cal.4th 992, 1004; accord,
Juarez v. San Bernardino City Unified School Dist. (2024)
106 Cal.App.5th 1213, 1221.)
Notwithstanding the broad “scope of employment,” sexual
assault generally falls outside the scope of employment. (See
Daza v. Los Angeles Community College Dist. (2016)
247 Cal.App.4th 260, 268 [“courts have rarely held an employee’s
sexual assault or sexual harassment of a third party falls within
the scope of employment”].) The general rule applies in school
settings, and a school district is not vicariously liable for an
employee’s acts of sexual misconduct with a student.6 (See
6 Cases discussing sexual misconduct in a school setting
usually involve injury to a minor, not someone like Medina, who
was 30 years old and enrolled part time in an adult school
program operated by the District.
23
C.A. v. William S. Hart Union High School Dist. (2011)
53 Cal.4th 861, 865-866, 879 [because a school counselor’s sexual
abuse of a student was outside the scope of her employment, the
school district was not vicariously liable for the counselor’s acts];
John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438,
450-452 [teacher who engages in sexual misconduct with a
student acts outside the scope of employment, and the employer
school district was not vicariously liable for the teacher’s
conduct]; O.B. v. Los Angeles Unified School Dist. (2025)
113 Cal.App.5th 930, 937 [“‘If a teacher sexually abuses a
student, the school district that employs the teacher is not liable
for the teacher’s conduct under [Government Code section 815.2,
subdivision (a),] because such conduct is not within the scope of
employment.’”].)7
Citing John R. v. Oakland Unified School Dist., supra,
48 Cal.3d 438, the District argued in its motion for summary
adjudication that, as a matter of law, any sexual misconduct
7 A school district, however, may be vicariously liable for its
supervisory employees’ negligence in hiring and supervising an
employee that engages in sexual misconduct against a student.
(See C.A. v. William S. Hart Union High School Dist., supra,
53 Cal.4th at pp. 865-866, 879 [though a school district was not
vicariously liable for counselor’s sexual misconduct, the district
could be vicariously liable for the acts of other employees who
negligently hired, retained, and supervised the counselor]; O.B. v.
Los Angeles Unified School Dist., supra, 113 Cal.App.5th at
p. 937 [if a teacher sexually abuses a student, the school district
“‘may be held liable if its supervisory employees were negligent in
hiring and supervising the abusive teacher and that negligence
resulted in the student’s harm’”].) Medina did not make that
argument in opposition to the District’s motion for summary
judgment, nor does he make it on appeal.
24
Martinez committed was outside the scope of his employment
with the District. The District further argued that, whatever the
nature of the relationship between Martinez and Medina, the
undisputed evidence showed their relationship was personal and
private, not work-related. As discussed, Martinez met Medina,
who was performing as a singer at a restaurant, when Martinez
attended a birthday party for a personal friend. Medina and
Martinez began socializing, meeting at restaurants and bars, and
texting frequently. Martinez helped Medina find work with a
relative, gave Medina gifts, and gave him money. Martinez
ultimately hired Medina to do administrative work for Martinez’s
father and paid him a $500 weekly “allowance” for that work.
And the two alleged sexual assaults took place outside of working
hours and at Martinez’s residence. While Martinez did mentor
Medina and assist him in enrolling in the adult school at the
District, that was part of his personal relationship with Medina.
Finally, regarding Medina’s allegation Martinez was chief
of police for the District, the District offered evidence Martinez
was never the police chief or any other type of law enforcement
officer for the District, and it was undisputed Martinez never
took part in any law enforcement training and never had a
uniform, badge, or firearm. The District also argued that, even if
Martinez held himself out as a law enforcement officer, the
limited scope of employment exception regarding sexual assault
by law enforcement officers in Mary M. v. City of Los Angeles
(1991) 54 Cal.3d 202 (Mary M.) did not apply because Martinez
never acted as a law enforcement officer with respect to Medina,
i.e., Martinez never showed Medina a uniform, badge, or firearm,
and never detained him.
25
Medina did not create a triable issue of material fact
regarding whether the alleged sexual assaults were within the
scope of Martinez’s employment. First, Medina did not dispute
any of the facts showing his relationship with Martinez was
predominantly personal, not professional. Nor did Medina’s
additional facts create a triable issue of material fact on that
point.
Second, though Medina testified Martinez said he was the
chief of police for the District, that fact, even if true, did not
create a triable issue of material fact regarding whether the
alleged sexual assaults occurred within the scope of Martinez’s
employment.8 In Mary M., supra, 54 Cal.3d 202 the Supreme
Court created a limited exception to the general rule an
employee’s sexual assault is outside the scope of employment. In
Mary M. a police sergeant stopped the victim for erratic driving.
The officer was in uniform, wore a badge, had a gun, and was
driving a marked black and white police car. After the officer
asked the victim to perform a field sobriety test, she began to cry
and pleaded with the officer not to take her to jail. The officer
told the victim to get in the front seat of his car. He did not
handcuff her. He drove the victim to her home, demanded
“‘payment,’” and raped her. (Id. at p. 207.)
8 Medina did not include in the record on appeal the
District’s response to Medina’s 84 additional disputed facts.
However, the District submitted an order from the District’s
Personnel Commission indicating that, at least as of June 11,
2019—more than two months before the alleged sexual
assaults—Martinez would not receive a salary for services as the
District’s chief of police and that he could not appoint himself to
that position.
26
The Supreme Court held the city that employed the police
sergeant could be vicariously liable for the officer’s sexual
assault. The court stated “society has granted police officers
extraordinary power and authority over its citizenry” and has
given officers visible symbols of the coercive power they possess,
including distinctively marked cars, uniforms, badges, and
weapons. (Mary M., supra, 54 Cal.3d at p. 216.) The Supreme
Court concluded the cost resulting from an abuse of that power is
best borne by society at large. (Id. at pp. 217-218.) Therefore,
the Supreme Court held, vicarious liability of a public employer
of a law enforcement officer is appropriate where the evidence
shows the officer, while “on duty, commits a sexual assault by
misusing his official authority.” (Id. at pp. 216-218.) The
Supreme Court, however, emphasized the limited scope of the
exception. (See Mary M., at p. 218, fn. 11 [“We stress that our
conclusion in this case flows from the unique authority vested in
police officers.”]; Lisa M. v. Henry Mayo Newhall Memorial
Hospital (1995) 12 Cal.4th 291, 304 [same]; Farmers Ins. Group
v. County of Santa Clara, supra, 11 Cal.4th at p. 1006 [“except
where sexual misconduct by on-duty police officers against
members of the public is involved,” as in Mary M., an employer is
not vicariously liable to a third party for sexual misconduct by its
employee].)
Because the undisputed evidence showed Martinez never
coerced or exerted authority over Medina in a law enforcement
capacity, the limited exception of Mary M. did not apply.
Martinez denied that he was the chief of police or interim chief of
police for the District and that he ever had a uniform, badge, or
gun. Martinez also denied giving Medina the impression he was
a law enforcement officer. Though Medina disputed some of
27
those facts, Medina admittedly never saw Martinez wearing a
law enforcement uniform, displaying a badge, or possessing a
gun. Medina testified at his deposition Martinez never said he
was arresting Medina and never gave Medina the impression
Martinez was detaining him under law enforcement power. And
Medina said he never felt pressured or coerced to engage in any
sexual conduct with Martinez due to his purported status as a
law enforcement officer. The undisputed evidence, therefore, did
not support an inference Martinez misused any official law
enforcement authority he may have had, as required for the
Mary M. exception to apply.
Medina argues the District “was liable for negligence
because [the District] concentrated all power in the hands of
Defendant Martinez, who was both the Superintendent and Chief
of Police, which made Defendant Martinez’s unlawful conduct
both foreseeable and ratified by [the District], which constitutes
negligence even without vicarious liability.” This argument is
doubly forfeited. First, Medina did not raise this theory of direct
liability in opposition to the District’s motion for summary
adjudication. He argued only that the District failed to carry its
initial burden in moving for summary adjudication, that the
District was vicariously liable for Martinez’s sexual misconduct,
and that the District was directly liable for Martinez’s conduct
under Education Code section 220. (See Jackpot Harvesting Co.,
Inc. v. Superior Court, supra, 26 Cal.App.5th at p. 155
[arguments not raised in summary judgment proceedings are
forfeited].) Second, Medina has not supported his argument with
any legal authority. (See Siskiyou Hospital, Inc. v. County of
Siskiyou, supra, 109 Cal.App.5th at p. 39.)
28
C. The Trial Court Did Not Abuse Its Discretion in
Excluding Medina’s Secret Recording of a Three-hour
Conversation Between Medina and Martinez
Medina argues the trial court erred in excluding at trial the
secret recording Medina made of his lengthy conversation with
Martinez on August 22, 2019. The court did not abuse its
discretion.
1. Standard of Review
“We generally review a trial court’s evidentiary ruling for
abuse of discretion. [Citation.] At the same time, we review a
trial court’s legal conclusion de novo. [Citations.] ‘In deciding
whether the trial court’s order[ ] excluding evidence . . .
constituted an abuse of discretion, we “view the entire record in
the light most favorable to the court’s ruling, and draw all
reasonable inferences in support of it. [Citation.] . . . The trial
court’s decision will be reversed only ‘for manifest abuse
exceeding the bounds of reason.’’” [Citation.] ‘An evidentiary
ruling that “rests on an error of law is an abuse of discretion.’””
(640 Octavia LLC v. Walston (2025) 111 Cal.App.5th 861, 868-
869; see Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 630.)
2. Relevant Proceedings
After Medina produced a copy of the August 22, 2019
recording in discovery, Martinez filed a motion in limine to
exclude the recording on two grounds. First, Martinez argued
that, because Medina violated Penal Code section 632 by
recording the conversation without Martinez’s knowledge or
consent, the recording was inadmissible under Penal Code
29
section 632, subdivision (d).9 Second, Martinez argued that,
because the recorded conversation was lengthy (more than three
hours) and fluctuated between Spanish and English, and because
the recording was often difficult or impossible to understand, the
trial court should exclude the recording under Evidence Code
section 352. Medina opposed the motion, arguing Penal Code
section 632 did not apply because the parties did not have a
reasonable expectation of privacy during the conversation, which
began near a coffee shop. Medina argued in the alternative that,
if the court ruled the conversation was confidential, the court
should admit the recording under Penal Code section 633.5
because it contained evidence of a crime.
The court denied the motion in part, excluding under
Evidence Code section 352 the full, three-hour recording of the
conversation. The court also ruled the recording was
inadmissible under Penal Code section 632, subdivision (d). The
court ruled Medina and Martinez could each testify about his
recollection of the August 22, 2019 conversation without
disclosing Medina had recorded it. The court, however, left open
the possibility Medina could use the recording to impeach
Martinez (and vice versa). The court ordered any party who
wanted to use the recording for impeachment, prior to doing so in
front of the jury, to advise the court of the specific testimony the
party wanted to impeach, to play for the court the excerpt of the
9 Penal Code section 632, subdivision (d), states: “Except as
proof in an action or prosecution for violation of this section,
evidence obtained as a result of eavesdropping upon or recording
a confidential communication in violation of this section is not
admissible in any judicial, administrative, legislative, or other
proceeding.”
30
recording the party wanted to use, and to provide a written
transcript of the excerpt with an English translation if necessary.
The court stated it would rule at that point whether the party
seeking to use the recording for impeachment purposes could do
so. After Martinez testified, Medina identified eight excerpts
from the August 22, 2019 recording he contended impeached
Martinez’s testimony where he “denied stroking [Medina’s] penis
because he would remember that” and “denied grabbing
[Medina’s] penis.”
The trial court reviewed each of the excerpts Medina
proposed to play for the jury and denied Medina’s request to use
the recording to impeach Martinez. First, the court ruled the
excerpts identified by Medina did not impeach Martinez’s trial
testimony. Second, the court excluded the excerpts under
Evidence Code section 352. The court stated that Medina and
Martinez testified about their recollections of the August 22, 2019
conversation and that any probative value of the recording was
substantially outweighed by the risk of undue prejudice,
confusion, and misleading the jury. Third, citing Penal Code
section 632 and Frio v. Superior Court (1988) 203 Cal.App.3d
1480 (Frio), the court ruled that, because Medina testified about
his recollection of the recorded conversation, he could not avoid
the evidentiary bar of Penal Code section 632.
3. The Trial Court Did Not Abuse Its Discretion in
Excluding Excerpts of the Recording
Under Penal Code section 632 an electronic recording of a
confidential communication made without the consent of all
parties to the communication is inadmissible in a noncriminal
judicial proceeding. (Pen. Code, § 632, subd. (d); see People v.
31
Guzman (2019) 8 Cal.5th 673, 681 [“the 1982 passage of the
Right to Truth-in-Evidence provision repealed [Penal Code
section 632, subdivision (d),] to the extent the section applies to
criminal proceedings”].) “‘[C]onfidential communication’” means
“any communication carried on in circumstances as may
reasonably indicate that any party to the communication desires
it to be confined to the parties thereto, but excludes a
communication made in a public gathering . . . or in any other
circumstance in which the parties to the communication may
reasonably expect that the communication may be overheard or
recorded.” (Pen. Code, § 632, subd. (c).) “‘A conversation is
confidential if a party to that conversation has an objectively
reasonable expectation that the conversation is not being
overheard or recorded.’” (Mezger v. Bick (2021) 66 Cal.App.5th
76, 89.)
The trial court did not abuse its discretion in excluding
Medina’s recording of the August 22, 2019 conversation under
Penal Code section 632, subdivision (d). Medina recorded the
conversation without Martinez’s knowledge or consent. And
Martinez, at least, intended and took steps to ensure
confidentiality. Medina met Martinez at a coffee shop where they
began their conversation, but they later moved to Medina’s car
for greater privacy. Medina does argue otherwise.
Medina argues the trial court erred in excluding the
recording because, according to Medina, the recording was
admissible under Penal Code section 633.5. That statute
provides that Penal Code sections “631, 632, 632.5, 632.6, and
632.7 do not prohibit one party to a confidential communication
from recording the communication for the purpose of obtaining
evidence reasonably believed to relate to the commission by
32
another party to the communication of the crime of extortion,
kidnapping, bribery, any felony involving violence against the
person, including, but not limited to, human trafficking, as
defined in Section 236.1, or a violation of Section 653m, or
domestic violence as defined in Section 13700. Sections 631, 632,
632.5, 632.6, and 632.7 do not render any evidence so obtained
inadmissible in a prosecution for extortion, kidnapping, bribery,
any felony involving violence against the person, including, but
not limited to, human trafficking, as defined in Section 236.1, a
violation of Section 653m, or domestic violence as defined in
Section 13700, or any crime in connection therewith.”
Because Penal Code section 633.5 does not apply in civil
proceedings, the trial court did not abuse its discretion in
excluding the recording. Penal Code section 633.5 creates a
narrow exception to Penal Code 632—a recording otherwise
inadmissible under Penal Code section 632 may be used “in a
prosecution” of the crimes listed in Penal Code section 633.5.
(See Geragos v. Abelyan (2023) 88 Cal.App.5th 1005, 1030 [“Penal
Code section 633.5’s express language narrowly permits use of a
recording of a confidential communication “‘in a prosecution for
extortion, kidnapping, bribery’” and other expressly specified
crimes.”]; see also People v. Guzman, supra, 8 Cal.5th at p. 683
[Penal Code section 632, subdivision (d), was repealed by the
Right to Truth-in-Evidence provision regarding criminal cases,
but “it is undisputed that civil, ‘administrative,’ ‘legislative,’ and
other noncriminal proceedings [were] unaffected”].) By using the
term “prosecution,” the Legislature limited the application of
Penal Code section 633.5 to criminal prosecutions. (See Geragos,
at p. 1030 [rejecting the argument Penal Code section 633.5
authorizes use of a recording containing evidence of an
33
enumerated crime in a civil action]; People v. Ayers (1975)
51 Cal.App.3d 370, 376-377 [a private citizen cannot gain “any
personal benefit from the evidence” obtained in violation of Penal
Code section 631, but “evidence obtained by the illegal act of a
private citizen acting in a purely private capacity and without
governmental sanction or involvement may be used by the
government in a criminal prosecution” under Penal Code
section 633.5].) Therefore, even if the August 22, 2019 recording
contained evidence Martinez committed a crime—an issue we do
not reach—Penal Code section 633.5 did not override Penal Code
section 632’s evidentiary sanction.
Citing Frio, supra, 203 Cal.App.3d 1480, Medina argues
that, “where a party who unlawfully recorded a communication is
prohibited from testifying, the transcript of the unlawfully
recorded conversation may be admissible as impeachment if the
other party’s testimony is at variance with the recording.”
Medina’s argument fails for several reasons.
First, Penal Code section 632, subdivision (d), does not
allow the court to admit an illegal recording for impeachment
purposes in a civil action. As stated, that provision authorizes
using such a recording only “as proof in an action or prosecution
for violation of this section,” i.e., as evidence against the
recording party to establish a violation of Penal Code section 632.
Otherwise, as discussed, a recording made in violation of Penal
Code section 632 is inadmissible in any noncriminal judicial
proceeding, including for impeachment.
Second, the court in Frio did not hold the plaintiff (actually,
the cross-complainant), who had recorded some of his telephone
34
calls with the defendants on his answering machine,10 could play
those recordings at trial.11 The plaintiff in Frio made notes of his
conversations with the defendants; some of those notes were of
the actual phone calls, and some were of the recordings of those
calls. (Frio, supra, 203 Cal.App.3d at p. 1486.) The court in Frio
held the plaintiff, who was “unable to testify fully and accurately
absent use of a written memorandum,” could use his notes to
refresh his memory because refreshing recollection “does not
involve reading or offering them in evidence.” (Id. at pp. 1492-
1493; see People v. Parks (1971) 4 Cal.3d 955, 961 [“[i]f it is
necessary to refresh the memory of a witness through the use of a
prior recorded statement, that statement should not be read
aloud before the jury”].) The court in Frio held the plaintiff could
use his notes to refresh his recollection of the telephone calls,
even though some of the evidence in those notes “was acquired in
10 A answering machine was a tape recorder that had “two
magnetic tapes (typically cassettes), one for playing an
announcement to the calling party (e.g., ‘I’m out of the office. At
the sound of the tone please leave your name and phone number
and I will return your call.’) and the other for recording messages
from the calling party.” (T.A.D. Avanti, Inc v. Phone-Mate, Inc.
(C.D. Cal., Mar. 7, 1978, No. CIV.A. 76-4020-RMT) 1978 WL
21725, p. 1.) A cassette was an audio recording that recorded
“a human voice in analog” and that required an “audio cassette
player . . . to listen to a cassette tape. The benefit of a cassette
tape [was] that one [could] rewind it and review the information.
But it [was] limited to just going forward or backward . . . .”
(American Council of the Blind v. Astrue (N.D. Cal., Oct. 20, 2009,
No. C 05-04696 WHA) 2009 WL 3400686, p. 9.)
11 In fact, the recordings had been destroyed. (Frio, supra,
203 Cal.App.3d at p. 1486.)
35
apparent violation of [Penal Code] section 632, subdivision (d).”
(Frio, at p. 1494.) Here, Medina did not seek to use the recording
to refresh his recollection; he sought to play the recording to the
jury. Frio does not apply.
The court in Frio added a few comments in dicta: “If [the
recording party] is allowed at trial to relate his present
recollection of recorded conversations, albeit refreshed, there is
no need to allow him to avoid further the statutory sanction [of
Penal Code section 632, subdivision (d)] and also use the notes or
tapes to impeach any witness he may have recorded.
[¶] However, if [the recording party] were to be precluded from
giving testimony because of the evidentiary sanction of
section 632, the party asserting the sanction should not be
permitted to use it as a shield for perjury.” (Frio, supra,
203 Cal.App.3d at pp. 1496-1497.) To the extent the court in Frio
was suggesting a judicially created exception to Penal Code
section 632, subdivision (d), such an exception would not apply
here: Medina was not precluded from testifying about his
conversations with Martinez; he testified at length about his
conversations with Martinez and about his recollection of the
recording.
36
DISPOSITION
The judgment is affirmed. Anthony Martinez and the
Montebello Unified School District are to recover their costs on
appeal.
SEGAL, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
37