CASE PROCESSING PROCEDURES; EVIDENCE – Adverse Inferences

Single Topic for Decision 2905M

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The Board declined OE3’s invitation to draw an adverse inference against the District under Evidence Code section 413, which provides that “[i]n determining what inferences to draw from the evidence or facts in the case against a party, a trier of fact may consider . . . the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him.” OE3 argues that the Board should draw an adverse inference because the District failed to call a particular manager as a witness to testify regarding the statements an employee witness attributed to him, and that failure “itself leads to the inference that his testimony would not have contradicted the other witnesses’ accounts.” (Alliance Environmental Science and Technology High School et al. (2020) PERB Decision No. 2717-E, p. 23; see Regents of the University of California (1987) PERB Decision No. 640-H, adopting proposed decision at pp. 88-90.) But by calling three different employees to testify, the District presented evidence within its control that directly controverted the witness’ account on a disputed material fact. The Board therefore found that an adverse inference is not appropriate. (p. 19.)