S.C. Denies Review of Ruling in USC Sexual Assault Probe

Thursday, August 11, 2016

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S.C. Denies Review of Ruling in USC Sexual Assault Probe

By KENNETH OFGANG, Staff Writer

The California Supreme Court yesterday left standing a Court of Appeal ruling requiring the University of Southern California to set aside the suspension of a male student involved in an alleged incident of sexual assault.

The justices, at their weekly conference in San Francisco, voted 5-2 to deny the university’s petition for review. Only Justices Goodwin H. Liu and Mariano-Florentino Cuéllar voted to take the case, Doe v. University of Southern California (2016) 246 Cal. App. 4th 221.

The Court of Appeal granted a writ of mandate sought by the student, identified as John Doe. In a footnote, Justice Audrey Collins of Div. Four explained that, while USC is a private university, it requires an evidentiary hearing for student discipline, and is therefore required by state law to treat students fairly and cannot impose discipline without substantial evidence of a rules violation.

The case against John Doe stemmed from what the justice described as a group sexual encounter at a fraternity party. An admittedly intoxicated student, identified only as Jane, said she was assaulted by a group of men at the party.

Jane admitted that she engaged in consensual sexual activity, apparently oral sex, with John Doe. But she ultimately claimed, in a statement to campus investigators, that John Doe encouraged other men to slap her on the buttocks, which she did not consent to.

University Finding

The university’s office of Student Judicial Affairs and Community Standards, or SJACS, found John Doe in violation of nine sections of the student conduct code, including the section prohibiting sexual assault. But the Student Behavior Appeals Panel ruled that there was insufficient evidence to support that charge, or most of the others, but found that John Doe “encouraged or permitted” other students to strike Jane, and that he endangered her by leaving her alone in the bedroom when he and the other males dispersed.

Retired Los Angeles Superior Court Judge Robert O’Brien, sitting on assignment, granted mandamus relief in part. He ruled that John Doe received a fair hearing, and that there was substantial evidence that he permitted or encouraged improper behavior by others, but that there was insufficient evidence of endangerment.

Collins, however, said John Doe was denied both meaningful notice and a fair hearing.

The justice said the male student was led to believe that the only issue being considered by SJACS was whether the sex was consensual. He thus “was never afforded notice or a meaningful opportunity to address whether he ‘encouraged or permitted’ the slaps, or whether his departure from the bedroom endangered Jane.”

Notice of a misconduct charge, Collins said, “must include information about the basis of the accusation—not just a list of Student Conduct Code sections that can be interpreted to encompass any activity SJACS or the Appeals Panel finds to be inappropriate.”

No Fair Hearing

Collins also rejected the university’s argument that by allowing the student “to know the charges against him, to see the evidence against him, upon request, and to respond fully to the charges, both orally and in writing” and to appeal the SJACS findings to the three-member panel,” it gave him a fair hearing.

The justice noted a number of deficiencies, including the fact that Jane—who gave four separate statements to investigators, the first two of which made no mention of being slapped by other males—was given copies of her statements, but John Doe was not. And the burden of requesting copies of the statements, she said, should not have been placed on the accused.

“Here, SJACS relied on information never revealed to John, and the Appeals Panel suspended John on a different theory than SJACS. John was not provided any information about the factual basis of the charges against him, he was not allowed to access any evidence used to support those accusations unless he actively sought it through a written request, and he was not provided with any opportunity to appear directly before the decision-making panel to rebut the evidence presented against him,” Collins wrote. “While a full trial-like proceeding with the right of cross-examination is not necessary for administrative proceedings, we cannot agree with USC that the process afforded to John met the standards of a fair hearing under Code of Civil Procedure section 1094.5.”

The justice also concluded that in light of the discrepancies in the statements, there was insufficient evidence to support the “encouraged or permitted” charge.

Movie Case

In other conference action, the court left standing a ruling by this district’s Div. One reviving, for the second time, a theater owner’s antitrust suit against a larger competitor.

Flagship Theatres claims that Century Theaters—which acquired the Century 15 at the River theater, located in Rancho Mirage less than two miles from Flagship’s Cinemas Palme D’Or, in 2002 and was itself acquired by Cinemark USA Inc.in 2006—is able to obtain higher-quality films for it’s at less cost because of its size. Palme D’Or is Flagship’s only theater, and Flagship claims Century uses its power in the marketplace to prevent Flagship from obtaining the best films.

No justice voted to review the ruling in Flagship Theatres of Palm Desert, LLC, v. Century Theatres, Inc., B257148, in which the court reversed Los Angeles Superior Court Judge Allan J. Goodman’s ruling granting Cinemark’s request for terminating sanctions on the eve of trial in the decade-old suit.

Goodman had granted terminating sanctions on the grounds that Flagship co-owner Brian Tabor’s purported accidental deletion of all of his emails from 2007 through 2009 had impaired the defendant’s ability to mount an adequate defense. But Justice Jeffrey Johnson, in an unpublished opinion for the appeals panel, said the record supported Tabor’s claim that the deletions were part of an effort to solve an email problem, not to destroy evidence.

Lesser sanctions, the jurist said, would be sufficient to dispel any prejudice to the defendant.

The Court of Appeal’s previous ruling in the case came in 2011, when it held that the previous trial judge relied on a “legally erroneous conception of the antitrust injury requirement” and that the plaintiff need only prove that it suffered loss from competition-reducing conduct by the defendant, even if it cannot show evidence—such as proof of higher prices or reduced supply—that the market has become uncompetitive or less competitive.