Rose Ecf 285

Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 1 of 10 Page ID #:10148
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BRANDON J. ANAND, ESQ. (SBN: 262183)

Anand Law, PC
5455 Wilshire, Blvd., Ste. 1812
Los Angeles, CA 90036
Telephone: (323) 325-3389
Facsimile: (323) 488-9659
Email: brandon@anandlaw.com
WAUKEEN Q. MCCOY, ESQ. (SBN 168228)
McCoy Law Firm, PC
555 Montgomery Street, Suite 1100
San Francisco, California 94111
Telephone: (415) 675-7705
Facsimile: (415) 675-2530
Email: Mail@McCoysLaw.com
Attorneys for Plaintiff
JANE DOE
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
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Case No.: CV-15-7503-MWF (JCx)
JANE DOE (A Pseudonym),

Plaintiff,
PLAINTIFF JANE DOES NOTICE OF

MOTION AND MOTION TO STRIKE
v.
(AND IN THE ALTERNATIVE OPPOSE)
DEFENDANT DERRICK ROSES
DERRICK ROSE, an Individual;
NOTICE OF MOTION AND MOTION TO
RANDALL HAMPTON, an Individual;
ADMIT PROBATIVE EVIDENCE OF
RYAN ALLEN, an Individual, and DOES 1-10 PLAINTIFFS SEXUAL BEHAVIOR AND
Inclusive,
SEXUAL PREDISPOSITION UNDER
FEDERAL RULE OF EVIDENCE 412 (C)
Defendant.
Hearing:
Date: September 29, 2016
Time: 10:00 AM
Place: Courtroom 1600
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Trial Date: October 4, 2016

Judge: Hon. Michael Fitzgerald
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PLAINTIFF DOES NOTICE OF MOTION AND MOTION TO STRIKE (AND IN THE ALTERNATIVE OPPOSE) DEFENDANT
DERRICK ROSES NOTICE OF MOTION AND MOTION TO ADMIT PROBATIVE EVIDENCE OF PLAINTIFFS SEXUAL BEHAVIOR
AND SEXUAL PREDISPOSITION UNDER FRE 412 (C)
249974.1
CASE NO. CV 15-7503-MWF(JCX)

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TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on October 4, 2016 at 8:30 a.m. or as soon
as thereafter as the matter may be heard in Courtroom 1600 of the above-entitled
Court, located in the Spring Street Courthouse located at 312 North Spring Street,
Los Angles, California, Plaintiff Jane Doe will and hereby does move this Court for
an order, pursuant to Federal Rule of Civil Procedure 12 (f) (2), to strike Defendant
Derrick Roses Notice of Motion and Motion to Admit Probative Evidence of
Plaintiffs Sexual Behavior and Sexual Predisposition under Federal Rule of
Evidence (FRE) 412 (c) (Motion) because it (1) violates The Courts Amended
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Order Re Jury Trial (Docket No. 46) and (2) the Court previously ruled on this issue
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when it granted Plaintiffs Motion in Limine No. 4 Exclude Any And All Evidence
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And Testimony Related To Plaintiff Does Alleged Prior Relationships And
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Alleged Sexual Predisposition Pursuant to FRE 412 (Docket No. 265) ([A]ny such
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evidence is flatly inadmissible under Federal Rule of Evidence 412(a)).
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In the alternative, the Court should decline the Motion on the merits. Plaintiff
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Jane Doe requests the Court deny Defendant Roses Motion under Federal Rule of
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Evidence 412 (c) (2) supported by the Memorandum of Points and Authorities
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which follows.
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DATED: September 28, 2016

Respectfully submitted,
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/s/ Brandon J Anand

BRANDON J. ANAND
Attorney for Plaintiff
JANE DOE
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249974.1

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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
INTRODUCTION
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Pursuant to Federal Rule of Evidence (FRE) 412 (b)(2) and FRE 412 (c) (2)
Plaintiff Jane Doe hereby submits this Motion to Oppose Defendant Derrick Roses
Notice of Motion and Motion to Admit Probative Evidence of Plaintiffs Sexual
Behavior and Sexual Predisposition under Federal Rule of Evidence 412 (c).
Because Rule 412 governs the admissibility of evidence at trial, it does not
directly govern a party's behavior during the pleading or discovery process.
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Plaintiff Jane Doe has not opened the door to her sexual behavior or sexual
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predisposition merely by pleading facts and responding to discovery requests. As
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will be discussed, Defendant Rose is mistaken in proposing that Plaintiff Jane Doe
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has made subject matter impermissible by FRE 412 permissible at this stage of the
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proceedings. The purpose of Rule 412 is to prevent juries from placing excess
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probative value on matters that should not affect their decisions-namely, a victim's
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or plaintiffs sexual history. Any sexual behavior or sexual predisposition of the
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Plaintiff Jane Doe not probative of whether or not sexual assault took place in the
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early morning of August 27, 2013 and tending to prejudice or harm her is
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impermissible evidence under FRE 412 (b)(2).
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FRE 412 reflected Congressional consensus that, in most instances, evidence
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of a rape victim's prior sexual history is irrelevant to a determination of whether a
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rape has occurred. Rule 412 was intended by Congress to protect victims of sexual
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violence by limiting the effects of rape myths and stereotypes.

These myths include the idea that a victim must have precipitated the sexual
misconduct; that women assume the risk of being targeted by engaging in
certain behaviors; and the idea that it is the woman's job to be the gatekeeper
of sex, and therefore are somehow responsible when things go awry. These
ideas, widely shared by men and women who have traditional notions of
gender roles, are sometimes relied on as a way of explaining why some
women are victimized and others are not. Such evidence may be intuitively
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appealing, but only because it relies on stereotypes that are often unexamined
and never identified as biased or false. Although evidence of a victim's past
sexual history meets the low relevance threshold of Rule 401, Rule 412 is
intended to combat these sexual myths and stereotypical cultural beliefs.
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See, Jane Aiken, Protecting Plaintiffs Sexual Pasts: Coping with Preconceptions
Through Discretion. 51 Emory L.J. 559, 570, (2002).
Defendant Rose requests that the Court allow him to present evidence of
Plaintiff Jane Doe's past sexual behavior and sexual disposition which is not
probative for a jury as to the question of the alleged sexual assault, and amounts to
an attempt to impermissibly besmirch Plaintiff Jane Does character with precisely
the type evidence that FRE 412 is intended to prevent.
II.
A. Plaintiff Jane Doe Has Neither Affirmatively Placed Her Reputation

In Controversy Nor Voluntarily Injected Her Sexual Behavior and
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Predisposition Into The Instant Case Under FRE 412 (b)(2).
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ARGUMENT
In a civil case, evidence offered to prove the sexual behavior or sexual

predisposition of any alleged victim is admissible if it is otherwise admissible under
the Federal Rules of Evidence and its probative value substantially outweighs the
danger of harm to any victim and of unfair prejudice to any party. Evidence of an
alleged victim's reputation is admissible only if it has been placed in controversy by
the alleged victim. See, Macklin v. Mendenhall, 257 F.R.D. 596, 601 (E.D. Cal.
2009)
Evidence of sexual conduct which is remote in time or place to
plaintiffs' alleged sexual assault on August 27, 2013 is irrelevant. See, Macklin v.
Mendenhall, 257 F.R.D. 596, 603 (E.D. Cal. 2009). Rule 412(b)(2) also provides
that [e]vidence of an alleged victim's reputation is admissible only if it has been
placed in controversy by the alleged victim. Thus, if a plaintiff brings an action
alleging employment discrimination based upon a sexually hostile work
249974.1

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environment but does not seek reputational damages or make allegations relating to
her professional reputation, she has not opened the door for reputational evidence
to be admitted. See, Id. At 604 (E.D. Cal. 2009).
Here, Plaintiff Doe is not seeking any reputational damages, she is seeking
damages as a direct result of an alleged sexual assault on August 27, 2013. Plaintiff
has not claimed that the alleged sexual assault has aggravated any childhood sexual
abuse or other previous sexual assault which would serve to exacerbate damages
here. For that reason she has not "opened the door" to a permissible inquiry into
her sexual past. See, S.M. v. J.K., 262 F.3d 914, 91920 (9th Cir. 2001), amended,
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315 F.3d 1058 (9th Cir. 2003).
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Defendants have advanced the argument that Plaintiff Jane Doe has put her
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character at issue and opened the door to inquiry into her sexual conduct in
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relation to her religious beliefs and professed "shyness" and "prudishness".
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Defendants argue that by claiming to be introverted, yet conceding that she has
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engaged in activities which may be deemed to compromise her adherence to her
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values and are "adventurous", Plaintiff Jane Doe has placed her character at issue;
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Defendants urge that her prior sexual conduct must be explored to challenge her
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testimony concerning her personal moral beliefs as well as for the purposes of
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determining damages. None of this line of reasoning by Defendant Rose will lead
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to evidence which would meet the balancing test for admissibility under Rule
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412(b)(2) because it is not probative of the alleged sexual assault and will prejudice
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and harm Plaintiff Jane Doe. See, Barta v. City and County of Honolulu, 169 F.R.D.
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132, 136 (D. Haw. 1996)
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B. The Criminal Exceptions FRE 412 (b)(1)(A),(B), and (C) Are Not
Applicable In This Case.
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Defendants propose that the Court violate FRE 412 and admit Plaintiff Jane
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Does past sexual behavior because it is relevant for a jury to determine her motives
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for bringing an allegation of sexual assault. For that reason Defendant Rose urges
the court to utilize reasoning associated with the Criminal exception FRE 412 (B)
and (C ). See, United States v. Begay, 937 F.2d 515, 523 (10th Cir. 2001).
However, this is a civil action for damages. The veracity of Plaintiff Does
claims of sexual assault do not lack credibility because she seeks damages. The
constitutional issues associated with the Criminal exceptions to FRE 412 (a)(1) and
FRE (a)(2), such as the right to confront an accuser and other constitutional
safeguards to show motive by an alleged victim are not applicable under FRE 412
(b)(2). See, Crane v.Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d
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636, 645 (1986). See also, Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct.
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1038, 1045 35 L.Ed.2d 297, 308 (1973). This Court must consider the impact of a
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given ruling on the victim alleging sexual assault, and should guard against jury
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confusion and misleading inquiry. Evidence of Plaintiff Jane Doe's sexual activity
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may divert the jury's attention from the behavior of the defendants on August 27,
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2013 to that of the victim at times not probative of the alleged sexual assault. For
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example, the evidence may mislead a jury to conclude that one who assaults a more
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sexually experienced woman is not culpable, especially if the woman initiated the
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meeting which led to the assault.
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Plaintiff Jane Doe has no history of making false sexual assault allegations.
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A criminal defendant states a violation of the Confrontation Clause by showing that
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he is prohibited from engaging in otherwise appropriate cross-examination
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designed to show a prototypical form of bias on the part of the witness, and thereby
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to expose to the jury the facts from which jurors could appropriately draw inferences
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relating to the reliability of the witness. See, Delaware v. Van Arsdall, 475 U.S. 673,
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680, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986)
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Here, the only criteria the Court may apply is the balancing test of FRE 412
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(b)(2). Defendant Rose is asking for application of the Criminal exception because
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of the weight of the harm and prejudice the evidence he wants to introduce leads to
prejudicial, impermissible inferences. The only permissible sexual inquiry is one
to determine whether or not the alleged sexual assault took place on August 27,
2013 involving the named defendants.
C. Defendants Contention That Inquiry Into Plaintiff Jane Doe's Sexual

Past is Permissible to Determine Damages is Misguided.
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Defendant Rose claims that evidence of Plaintiff Jane Does sexual
conduct is relevant to the issue of emotional damages because sexually promiscuous
people are less likely to be offended by such conduct. In reality, her past sexual
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conduct (as alleged by defendants) does not, as defendants would argue, create
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emotional calluses that lessen the impact of unwelcomed sexual assault and battery.
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The fact that the Plaintiff Jane Doe may have welcomed sexual advances from
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Defendant Rose at some point in time before the morning of August 27, 2013 or
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even welcomed sexual advances from certain individuals in her past, has absolutely
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no bearing on the emotional trauma she may feel from sexual assault that is
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unwelcome. Past sexual conduct does not callous one to subsequent, unwelcomed
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sexual assault. See, Macklin v. Mendenhall, 257 F.R.D. 596, 603 (E.D. Cal. 2009).
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Defendants seek to introduce evidence of persons that Plaintiff Jane
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Doe may have had sexual relations with not named is this action. Any past sexual
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activity by Plaintiff Jane Doe which did not involve conduct with any of the named
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defendants is impermissible. Within that defined area, plaintiff's sexual conduct has
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no relevance to her claims of sexual assault or any applicable defenses, which
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defenses include the welcomeness defense or consent to the behavior by plaintiff as
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well as issues of causation and damages. See, Barta v. City and County of Honolulu,
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169 F.R.D. 132,135 (D.Haw.1996).
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D. Defendants Attempt to Use Plaintiff Jane Doe's Sexual History for

Impeachment Purposes is Impermissible Under FRE 412 (b()(2).
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Each consensual sexual act by a woman is a separate consensual sex
act. Each is a separate choice. Each decision to consent is a new act, a choice made
on the circumstances prevailing in the present not governed by the past. The issue
in this case is sexual battery and assault.
circumvent the boundaries of FRE 412 (b)(2) and introduce impermissible sexual
character evidence to bolster his defense that Plaintiff Jane Doe: (1) invited the
sexual assault on August 27, 2013; (2) invited his attention on August 27, 2013; (3)
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is not credible because she has been sexually active and seeks financial damages;
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(4) because she had an interest in sex that she consented; (5) that because she once
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had an interest in sex that she welcomed Defendants approaches.
Defendant Rose is attempting to
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Defendant is attempting to cause a jury to make the impermissible
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inference that somehow Plaintiff Jane Doe welcomed the alleged sexual assault.
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Defendants' arguments as to the need to explore Plaintiff's past sexual conduct for
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purposes of impeachment is misguided. First, the Advisory Comments to FRE 412
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specifically state that Rule 412 seeks to achieve its objectives by barring evidence
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relating to the alleged victim's sexual behavior or alleged sexual predisposition,
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whether offered as substantive evidence or for impeachment, except in designated
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circumstances in which the probative value of the evidence significantly outweighs
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possible harm to the victim. See, Macklin v. Mendenhall, 257 F.R.D. 596, 60506
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(E.D. Cal. 2009).
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E. Defendant Roses Requested Specific Evidence Is Not Admissible

Under FRE 412(b)(2)
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The evidence Defendant Rose's FRE 412(c) motion requests that the Court
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admit to trial fails the balancing test required by FRE 412(b)(2). Plaintiff Jane Doe
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is entitled to a fair trial. Under FRE 412(b)(2) evidence concerning Plaintiff Jane
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Doe's sexual fantasies or past sexual practices have no probative value on the issue
of whether she welcomed the alleged sexual assault of August 27, 2013. Rule
412(b)(2) reverses the usual approach and tilts the balance toward inadmissibility
in three regards according to the Advisory Committee. First, it raises the threshold
for admission by requiring that the probative value of the evidence substantially
outweigh the specified dangers. Second, it shift[s] the burden to the proponent to
demonstrate admissibility rather than making the opponent justify exclusion of the
evidence. Third, it puts harm to the victim on the scale in addition to prejudice
to the parties. See, B.K.B. v. Maui Police Dept., 276 F.3d 1091 (9th Cir. 2002).
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Rule 412 requires the court to assess both the "danger of harm to any victim
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and of unfair prejudice to any party. The inclusion of "harm to any victim as a part
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of this balancing test provides the key to effective implementation of amended Rule
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412. See, FED. R. EVID. 412 advisory committee's notes. This additional
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requirement forces the court to focus on the impact of evidence on the victim and
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any victim. If the proponent of the evidence can demonstrate that the proposed
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evidence is otherwise admissible under the rules and its probative value
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substantially outweighs the harm to any victim and unfair prejudice to any party,
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then the evidence may be admissible. By requiring that the evidence be "otherwise
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admissible," the evidence must also meet the strictures of Rule 404, which precludes
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the use of evidence as inference of character to prove conduct in conformity with
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that character. See, FRE. 404(a).
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III.
CONCLUSION
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Defendant Rose is attempting to introduce impermissible, irrelevant
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character evidence, which is not probative of the alleged sexual assault. It is an
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attempt to prejudice a jury into drawing an inference that Plaintiff Jane Doe
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somehow "welcomed" sex with Defendants Rose, Allen and Hampton on the
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Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 10 of 10 Page ID

#:10157
morning of August 27, 2013.
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DATED: September 26, 2016

Respectfully submitted,
/s/ Brandon J Anand
BRANDON J. ANAND
Attorney for Plaintiff
JANE DOE
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Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 1 of 10 Page ID #:10148

BRANDON J. ANAND, ESQ. (SBN: 262183)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

Case No.: CV-15-7503-MWF (JCx)

JANE DOE (A Pseudonym),

PLAINTIFF JANE DOES NOTICE OF

Trial Date: October 4, 2016

CASE NO. CV 15-7503-MWF(JCX)

Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 2 of 10 Page ID #:10149

TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on October 4, 2016 at 8:30 a.m. or as soon

as thereafter as the matter may be heard in Courtroom 1600 of the above-entitled

Derrick Roses Notice of Motion and Motion to Admit Probative Evidence of

Plaintiffs Sexual Behavior and Sexual Predisposition under Federal Rule of

And Testimony Related To Plaintiff Does Alleged Prior Relationships And

evidence is flatly inadmissible under Federal Rule of Evidence 412(a)).

DATED: September 28, 2016

/s/ Brandon J Anand

CASE NO. CV 15-7503-MWF(JCX)

Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 3 of 10 Page ID #:10150

MEMORANDUM OF POINTS AND AUTHORITIES

Notice of Motion and Motion to Admit Probative Evidence of Plaintiffs Sexual

directly govern a party's behavior during the pleading or discovery process.

predisposition merely by pleading facts and responding to discovery requests. As

or plaintiffs sexual history. Any sexual behavior or sexual predisposition of the

impermissible evidence under FRE 412 (b)(2).

FRE 412 reflected Congressional consensus that, in most instances, evidence

of a rape victim's prior sexual history is irrelevant to a determination of whether a

violence by limiting the effects of rape myths and stereotypes.

CASE NO. CV 15-7503-MWF(JCX)

Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 4 of 10 Page ID #:10151

A. Plaintiff Jane Doe Has Neither Affirmatively Placed Her Reputation

Predisposition Into The Instant Case Under FRE 412 (b)(2).

In a civil case, evidence offered to prove the sexual behavior or sexual

CASE NO. CV 15-7503-MWF(JCX)

Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 5 of 10 Page ID #:10152

to be admitted. See, Id. At 604 (E.D. Cal. 2009).

315 F.3d 1058 (9th Cir. 2003).

relation to her religious beliefs and professed "shyness" and "prudishness".

engaged in activities which may be deemed to compromise her adherence to her

132, 136 (D. Haw. 1996)

CASE NO. CV 15-7503-MWF(JCX)

Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 6 of 10 Page ID #:10153

meeting which led to the assault.

A criminal defendant states a violation of the Confrontation Clause by showing that

he is prohibited from engaging in otherwise appropriate cross-examination

680, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986)

CASE NO. CV 15-7503-MWF(JCX)

Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 7 of 10 Page ID #:10154

prejudicial, impermissible inferences. The only permissible sexual inquiry is one

2013 involving the named defendants.

C. Defendants Contention That Inquiry Into Plaintiff Jane Doe's Sexual

Defendant Rose claims that evidence of Plaintiff Jane Does sexual

conduct is relevant to the issue of emotional damages because sexually promiscuous

Defendants seek to introduce evidence of persons that Plaintiff Jane

no relevance to her claims of sexual assault or any applicable defenses, which

defenses include the welcomeness defense or consent to the behavior by plaintiff as

169 F.R.D. 132,135 (D.Haw.1996).

CASE NO. CV 15-7503-MWF(JCX)

Case 2:15-cv-07503-MWF-JC Document 285 Filed 09/28/16 Page 8 of 10 Page ID #:10155

D. Defendants Attempt to Use Plaintiff Jane Doe's Sexual History for

Each consensual sexual act by a woman is a separate consensual sex

in this case is sexual battery and assault.