California Evidence Code Section 1101
Evidence Code Section 1101(a) prohibits, with specified exceptions, admission of "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . when offered to prove his or her conduct on a specified occasion."
Subdivision (b) of Evidence Code section 1101 (section 1101(b)) provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
Admission of evidence pursuant section 1101(b) is confided to the sound discretion of the trial court. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609.)
Its decision to admit such evidence will not be disturbed on appeal absent an abuse of discretion. (Id. at p. 1610; see, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
Even if evidence is admissible pursuant to section 1101(b), it may be excluded under section 352, which gives the trial court the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Balcom (1994) 7 Cal.4th 414, 426-427; People v. Ewoldt, supra, 7 Cal.4th at p. 404.)
The trial court's decision to admit evidence under section 352 is similarly reviewed for abuse of discretion. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
In applying Evidence Code section 1101, subdivision (b) to actions for employment discrimination or harassment, California courts have held that evidence that an employer discriminated against other employees in the plaintiff's protected class, commonly referred to as "me too" evidence, may be admissible to prove that the employer acted with a discriminatory motive or intent in its adverse action against the plaintiff. (McCoy, supra, 216 Cal.App.4th at pp. 296-297; Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 766-777 (Johnson); Pantoja v. Anton (2011) 198 Cal.App.4th 87, 109-110 (Pantoja).)
The relevance of evidence concerning an employer's conduct toward non-party employees is inherently "'fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.'" (Johnson, supra, at p. 767.) "Similar considerations are involved in balancing the probative value of the evidence against its prejudicial effect." (Ibid.)
"Me too" evidence is therefore not subject to any per se rule of exclusion, and may be admissible to prove an employer's motive or intent even where the conduct occurred outside the plaintiff's presence and at times other than when the plaintiff was employed. (Pantoja, supra, at pp. 115-116; see also Sprint/United Management Co. v. Mendelsohn (2008) 552 U.S. 379, 381, 388 evidence that employer discriminated against employees other than plaintiff "is neither per se admissible nor per se inadmissible," and instead "requires a fact-intensive, context-specific inquiry".)