John Doe v. Univ. of S. Cal.

• Decision Date: 11 December 2018
• Docket Number: B271834
• Citation: 241 Cal.Rptr.3d 146,29 Cal.App.5th 1212
• Court: California Court of Appeals Court of Appeals
• Parties: John DOE, Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Respondent.

29 Cal.App.5th 1212

241 Cal.Rptr.3d 146

John DOE, Plaintiff and Appellant,

v.UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Respondent.

B271834

Court of Appeal, Second District, Division 7, California.

Filed December 11, 2018

Werksman Jackson Hathaway & Quinn, Mark M. Hathaway, Mark W. Allen and Jenna E. Eyrich, Los Angeles, for Plaintiff and Appellant.

Gibson, Dunn & Crutcher, Theane Evangelis, Lauren M. Blas and Gregory S. Bok, Los Angeles, for Defendant and Respondent.

FEUER, J.

John Doe appeals from the trial court’s denial of his petition for a writ of administrative mandamus to set aside his expulsion from the University of Southern California (USC) for unauthorized alcohol use, sexual misconduct, sexual assault, and rape. USC student Jane Roe¹ submitted a complaint to USC alleging John had sexually assaulted her in Jane’s apartment after they both attended a "paint" party, at which the students splattered paint on each other. Dr. Kegan Allee, the Title IX² investigator, who served as the investigator and adjudicator of the complaint pursuant to USC’s administrative guidelines, found by a preponderance of the evidence John knew or should have known Jane was too drunk to consent to sexual activity. In addition, Dr. Allee concluded even if Jane had consented to vaginal sex, she had not consented to anal sex, as evidenced by blood observed in her apartment on the mattress, sheets, and carpeting later that day by Jane and another student.

John contends on appeal he was denied a fair hearing. We agree. Dr. Allee did not interview three central witnesses, including the two witnesses who observed Jane’s apartment after the sexual encounter—one described a large puddle of blood on the mattress and blood on the sheets and carpeting; another saw the apartment earlier that day and did not see any blood. Jane relied on the third witness to help her reconstruct what happened the morning of the incident. Instead, Dr. Allee relied on the summary of the interviews by another Title IX investigator, Marilou Mirkovich. Accordingly, Dr. Allee was not able to assess the credibility of these critical witnesses during the interviews.

Because Dr. Allee’s investigative report and adjudication turned on witness credibility, Dr. Allee should have interviewed all critical witnesses in person or by videoconference to allow her to observe the students during the interview. This was especially important here where there were inconsistencies in the testimony and a dispute over whether the substances observed in Jane’s apartment after the sexual encounter were blood or paint from the paint party. In addition, USC did not comply with its own procedures to conduct a fair and thorough investigation by failing to request that Jane provide her clothes from the morning of the incident and her consent to release her medical records from the rape treatment center.

We reverse and remand to the trial court with directions to grant John’s amended petition for a writ of administrative mandamus.

FACTUAL AND PROCEDURAL BACKGROUND

A. Events Prior to the Incident

On April 12, 2014 Jane and Sarah went to Jane’s apartment to get ready for two parties they planned to attend that evening.³ While they were at Jane’s apartment, they each had one beer and possibly shared a second beer. Each of them had one shot of alcohol at the first party. They then went to Sarah’s apartment around 9:30 p.m., and Jane and Sarah began drinking honey whiskey shots. Sarah reported she and Jane may have had three shots each while at Sarah’s apartment. Jane stated she did not drink more than two or three shots. Around 10:00 p.m. Carter arrived at Sarah’s apartment, followed by John. John was Carter’s friend from the same hometown. Around 11:00 p.m. Emily joined the group.

The group walked over to the paint party together. At the party, the attendees splattered each other with jugs of paint. Sarah stated there was a lot of red paint at the party, and she had red paint behind her ears and on her body for days after the party. Sarah reported the day after the party the red paint looked like "bruises and blood." Sarah and Jane shared a drink at the party. Emily observed Jane was "very flirty," putting her arms around young men and sitting on their laps. Jane sat on Austin’s lap, which Sarah thought was "weird" because Austin was "creepy" and "older." Emily saw John with his arm around Jane. Jane told Dr. Allee, "[John] was apparently always around me all night. I remember there was a long-haired person always near me with a USC shirt."

Carter told Dr. Allee that John was with him at the party most of the night because John did not know the other students. Carter described Jane, John, and Sarah as "very drunk." Carter explained that before the party Jane "was very quiet and reserved, but later at the party she was doing stuff that was totally not like her." He said it would have been obvious she was "really drunk" because she was having difficulty walking, "[s]he was hanging on people a lot," sat on a strange male’s lap, and was waving her drink around. But she spoke in full sentences and did not have slurred speech. He did not see Jane fall down, although he only saw her "at random times." Carter described himself and Emily as being only "tipsy."

Vance was a friend of Andrew, whom Jane was dating. Vance told Dr. Allee that Jane "was very drunk" at the party. Jane tried to dance with Vance, but "[s]he fell down a couple of times." He saw Jane fall down three times towards the end of the party: first when she threw buckets of paint on other people; then when she was dancing with a group; and a third time when she was outside on the street curb with two female friends.

Jane also described herself as intoxicated and falling down. She told Dr. Allee, "I lost complete control of that 3rd eye that I always [had] to be aware of how intoxicated I am." She added, "The next day my tailbone super hurt and my back felt thrown out."

At 1:49 a.m. the next day Jane sent a text to Andrew, stating, "Vance is helping me walk home [¶] Help."⁴ At 2:04 a.m. she added, "Blackout [¶] Vance helped." Then at 2:40 a.m. she texted, "Sort of [¶] He seems okay with i[t] all. ..." Vance later told Jane he remembered another male was with Jane and Sarah, but he did not know who it was.

At the end of the party, Jane, Sarah, Emily, Austin, Carter, and John left the party together. As they were leaving, Carter saw Jane "hanging on" to Sarah and John. Carter and Emily walked ahead of the group. Emily described Jane as "very drunk," but she was walking "ok." At some point Carter left to walk to his apartment, and Emily rejoined the group.⁵

Jane walked back to her apartment with John. Emily and Sarah went to Sarah’s apartment so Emily could charge her phone. At 2:14 and again at 2:55 a.m. Jane sent texts to Emily and Sarah to inquire whether they were coming back to her apartment. Emily responded that they were looking for Sarah’s phone, and asked if Jane was with John. Jane responded that she was. Emily and Sarah later walked to Jane’s apartment to use Jane’s computer to track down Sarah’s cell phone.

B. The Incident

Emily and Sarah arrived at Jane’s apartment about 3:30 a.m. on April 13, 2014.⁶ Emily opened Jane’s apartment door without knocking.⁷ When Emily and Sarah walked into the apartment, Jane and John were naked on the air mattress in the living room. Emily stated John did not cover himself; he remained on the air mattress completely naked. Sarah saw "two dark figures" on the air mattress, but she did not know the second person was John. The lights were off, and Sarah did not see paint around the air mattress. When Emily asked to use Jane’s computer, Jane became "frantic" and could not find the computer, even though it was in plain view. After Emily picked up the computer, Jane guided her out the front door. Emily heard the door locking and assumed Jane locked the door because she had led Emily out. Jane told Dr. Allee that John had said, "Lock the door." Emily and Sarah sat outside Jane’s apartment door trying to use the computer. At 3:36 a.m. Emily sent a text message to Jane saying they had left the computer outside Jane’s apartment. Emily and Sarah returned to Emily’s apartment.

Jane described the sexual encounter to Dr. Allee: "I blacked out. My friends came to my apartment and found me having sex with John. I was nervous. Agitated, but I can’t remember why. He was having sex with me but I wasn’t responding back. He flipped me over and pushed my head down. He entered me from behind. That was really painful! The only thing I remember saying was ‘condom’ because I was probably really nervous he wasn’t using one. Pain pulled me out of the black out. I was in so much pain." Jane added, "The most vivid memory is the pain from the anal intercourse. I shouted from [the] pain. I’m pretty sure it was loud. There was aggression to make him stop." After the encounter Jane went to her bedroom to hide. According to Jane, John came in and told her, "I crossed a boundary," and left the apartment. Security footage from the elevator showed John entering the elevator from Jane’s floor at 3:57 a.m.

Dr. Allee asked Jane if she had sensory memories from that night. Jane responded, "Yeah, I have a lot of those. I currently can’t smell alcohol without throwing up. I can’t be touched below my torso without freaking out. I have this terrible panic if someone hugs me without telling me. I remember the sensation of throwing up the rice, but not where or how. I remember the light when my friends opened the door to the apartment. I remember the pain of the flipping me over. Most of the memories come from Emily. Sarah wasn’t unconscious but behaving very strangely, which is why Emily was focused on her."

At 3:49 a.m., after John left the apartment, Jane sent a text message to Emily: "[I]s [Sarah] okay?!? [¶] Fuck [¶] I was so drunk [¶] Ow [¶] That wasn’t what I wanted." Jane then texted, "I was taken advantage of but it’s fine" and "It happens."

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