Modification: Balakrishnan v. The Regents of the University of California

GOPAL BALAKRISHNAN,

Plaintiff and Appellant,

v.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Defendant and Respondent.

No. A164480

(Alameda County Super. Ct. No. RG19018682)

California Court of Appeal

First Appellate District

Division Five

Filed March 1, 2024

ORDER GRANTING RESPONDENT'S MOTION FOR CONFIDENTIAL TREATMENT OF STUDENT IDENTITIES AND MODIFYING OPINION

NO CHANGE IN JUDGMENT

Trial Court: Superior Court of the County of Alameda

Trial Judge: Paul Herbert

Counsel: Hathaway Parker, Mark M. Hathaway and Jenna E. Parker, for Plaintiff and Appellant.

University of California Office of the General Counsel and Katharine Essick; Munger, Tolles & Olson, Hailyn J. Chen and Rebecca L. Sciarrino, for Defendant and Respondent.

THE COURT:^*

Respondent's motion for confidential treatment of student identities, filed on February 7, 2024, is granted.

It is ordered that the opinion filed herein on February 1, 2024, be modified as follows:

1. On page 3, the paragraph that begins, "The University received multiple complaints about plaintiff's conduct," is deleted and replaced with: "The University received multiple complaints about plaintiff's conduct. One of the more serious complaints, involving Jane Doe, an academic, came in anonymously. Since Jane Doe did not wish to participate in a formal investigation, the Title IX office relied on information she gave to a news Web site to identify an eyewitness who was willing to speak. The Title IX office also decided to investigate complaints from three other individuals: John Doe 1, Anneliese H., and John Doe 2."

2. On page 3, the paragraph that begins, "Jane Doe, a poet and academic from the East Coast," is deleted and replaced with: "Jane Doe, a poet and academic from the East Coast, met plaintiff when she traveled to Berkeley in 2013 to attend the three-day East Bay Poetry Summit (Poetry Summit), which plaintiff also attended. Jane Doe, along with a friend and professor (Witness 1), were invited to stay overnight at the home of the professor who was hosting the Poetry Summit. One evening, after the Poetry Summit ended for the day, the professor held a party for attendees at her home. It was a festive affair. At some point, Jane Doe and plaintiff were observed kissing. After midnight, however, Jane Doe and Witness 1 retired for the evening to the study where they were sharing a bed. A short while later, Jane Doe woke up to find plaintiff in the study, drunkenly trying to get in bed and asking to have sex with her. She told plaintiff that she was not interested in sexual activity and ' "shooed" ' him from the room. Nonetheless, about 2:00 a.m., Jane Doe woke up again to find plaintiff naked and 'loom[ing] over her while she lay in bed.' Plaintiff climbed into bed, and Jane Doe could feel his penis poking into her side. Jane Doe and Witness 1 forced plaintiff from the room and, this time, barricaded the door with furniture so he could not return."

3. On page 4, the paragraph that begins, "After completing the Doe investigation," is deleted and replaced with: "After completing the Jane Doe investigation, the investigator found plaintiff engaged in 'unwelcome physical conduct of a sexual nature which is conduct that falls squarely within the definition of prohibited conduct under the University of California Policy on Sexual Harassment dated February 10, 2006, the policy in effect at the time of the incident.' However, the investigator could not substantiate a violation of this policy because it only applied to ' "member[s] of the University community." ' "

4. On pages 7 and 8, both the heading and the text of section C (of part I of the factual and procedural background) are deleted and replaced with:

"C. John Doe 1 and John Doe 2.

"Former UCSC student John Doe 1 reported that, during the fall or winter of 2009, when he was 18 years old, he attended a small party at plaintiff's residence. John Doe 1 knew plaintiff through campus activities but was not his student. At this party, plaintiff gave John Doe 1 and other attendees cocaine and alcohol, and afterward he drove John Doe 1 home while under the influence of alcohol and drugs. John Doe 1 also recalled other occasions during this time period when plaintiff bought him alcohol at local bars although he was underage. John Doe 1 contacted the Title IX office after learning of the public accusations that had been raised against plaintiff because he believed his experiences were relevant.

"Following an investigation, the investigator found by a preponderance of the evidence that plaintiff gave John Doe 1 alcohol and cocaine at a party and bought him alcohol at least twice at local bars despite knowing he was under age 21.

"John Doe 2 was a Ph.D. candidate in the History of Human Consciousness Department in 2015, and plaintiff was his adviser. According to John Doe 2, one afternoon he visited plaintiff's office to discuss his dissertation. The pair engaged in a heated discussion regarding the appropriate direction of John Doe 2's dissertation. At some point, plaintiff became verbally and physically aggressive. John Doe 2 protested and tried to leave, but plaintiff blocked him by lunging at him and aggressively grabbing him.

"John Doe 2 reported this incident to Professor Dean Mathiowetz in November 2015 and later discussed it with the department's chair, David Marriott. Marriott secured plaintiff's commitment to have no contact with John Doe 2 and assigned John Doe 2 a new adviser. Despite this informal resolution, John Doe 2 came forward with an official complaint after reading the publicity, in 2017, about plaintiff's pattern of abusive behavior.

"The investigator again found by a preponderance of the evidence that plaintiff engaged in the alleged misconduct. While plaintiff's 'overall intent may have been benign,' his advising approach was detrimental to John Doe 2. Further, John Doe 2 reasonably viewed plaintiff's conduct as unwelcome and physically aggressive."

5. On page 8, the paragraph that begins, "On November 9, 2018, the Charges Committee found probable cause as to each complainant," is deleted and replaced with: "On November 9, 2018, the Charges Committee found probable cause as to each complainant: Jane Doe, Anneliese H., John Doe 1, and John Doe 2. With respect to Jane Doe, the Charges Committee acknowledged the investigator did not substantiate a violation of the UCSC sexual harassment policy because Jane Doe was not a member of the University community. The committee nonetheless found probable cause under part II of the University's Faculty Code of Conduct (APM‑015),⁴ Professional Responsibilities, Ethical Principles, and Unacceptable Faculty Conduct (hereinafter, Faculty Code of Conduct, Part II), which permits faculty members to be disciplined ' "for conduct which is not justified by the ethical principles, and which significantly impairs the University's central functions as set forth in the Preamble." . . . "Other types of serious misconduct, not specifically enumerated herein, may nonetheless be the basis for disciplinary action [if they also meet the preceding standards] . . . .'⁵"

As to footnote numbers 4 and 5 in this modified paragraph, both their placement (reproduced here) and their text (not reproduced here) are unchanged.

6. On page 10, the paragraph that begins, "With respect to Jane Doe, the PT Committee found clear and convincing evidence," is deleted and replaced with: "With respect to Jane Doe, the PT Committee found clear and convincing evidence that plaintiff violated the Faculty Code of Conduct, Part II, as there was 'no question' his conduct toward Jane Doe at an academic event was not justified by ethical principles and undermined the University's central function to provide an environment ' "conducive to sharing, extending, and critically examining knowledge and values, and to furthering the search for wisdom." ' "

7. On page 11, the last three paragraphs of part II (of the factual and procedural background), including footnote number 8, are deleted and replaced with:

"With respect to John Doe 1, the PT Committee found evidence that plaintiff violated the University's policy on substance abuse by knowingly providing him alcohol and cocaine. However, it concluded the evidence presented at the hearing did not meet the clear and convincing standard since John Doe 1 was vague as to key information, including times, persons, and dates. Accordingly, this charge was dismissed.

"Lastly, the PT Committee dismissed the charge relating to John Doe 2 based on the three-year limitations period set forth in the Faculty Code of Conduct.¹

"Thus, having unanimously found plaintiff committed serious violations of the Faculty Code of Conduct in the cases of Jane Doe and Anneliese H., the PT Committee recommended his dismissal and denial of emeritus status."

8. On page 18, line 4, "Ms. [Doe]" is deleted and replaced with "[Jane Doe]."

9. On page 18, line 18, the citation "(Ibid.)" is deleted.

10. On page 21, the paragraph that begins, "Plaintiff's attempt to paint this explanation as mere postulating," is deleted and replaced with: "Plaintiff's attempt to paint this explanation as mere postulating underscores his ongoing failure to recognize the gravity of his conduct. He sexually abused a fellow academic, Jane Doe, at an academic conference, and when she escorted him from the room, he returned later and abused her again. In response, Jane Doe and Witness 1 were forced to barricade the door for their safety. Plaintiff's colleagues on the PT Committee appropriately determined that his conduct presented a serious risk to the safety of others in the community and that his continued association with UCSC would likely discourage students and professors alike from participating in academic events where he might be present. The 2017 open letter calling on the University to discipline plaintiff for his pattern of abusive behavior, signed by over 150 people, confirms the PT Committee's determination was well founded, as does Witness 1's testimony about the trauma Jane Doe suffered from his abuse. Accordingly, the University's Jane Doe findings stand."

There is no change in the judgment.

^*Jackson, P. J.; Burns, J.; Chou, J.

^1. Department chair David Marriott testified that he knew of the alleged incident as of November 1 or 2, 2015, the day of or after it occurred. Yet, John Doe 2 did not file a formal complaint until 2018, and plaintiff did not receive notice of the University's intent to discipline him until November 14, 2018, about two weeks past the limitations period.