Judicial Notice of Internet Evidence — Can Emails of Public Entities Be Judicially Noticed as “Official Acts?” (Would Requisite Foundation Be Tantamount to Conventional Authentication?)

Takla v. Regents of the Univ. of Calif., 2015 U.S. Dist. LEXIS 150587 (C.D. Cal. Nov. 2, 2015):

I. INTRODUCTION

On August 28, 2015, plaintiffs Nefertiti Takla ("Takla") and Kristen Hillaire Glasgow ("Glasgow") filed their First Amended Complaint ("FAC") against defendant the Regents of the University of California ("UCLA"). Dkt. 18. In their FAC, Takla and Glasgow, Ph.D. candidates at UCLA's History Department, allege that they were sexually harassed by Gabriel Piterberg ("Piterberg"), a history professor at UCLA. Takla and Glasgow assert sexual-harassment and hostile-environment claims against UCLA under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), and Glasgow additionally asserts a claim for vicarious liability against the university on the basis of the negligent supervision, training, and/or retention of Piterberg.

On September 28, 2015, UCLA filed a motion to dismiss Takla's Title IX claims and Glasgow's vicarious-liability claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 20. On October 12, 2015, plaintiffs filed their opposition. Dkt. 31. On October 19, 2015, UCLA filed a reply. Dkt. 32. [*2]  Having carefully considered the parties' arguments, the Court finds and concludes as follows.

II. BACKGROUND

Takla

Takla alleges that Piterberg, her dissertation advisor, began sexually harassing her in the summer of 2011. (FAC ¶ 11.) On June 12, 2013, Takla reported the harassment to UCLA's former Title IX Coordinator, Pamela Thomason ("Thomason"). (Id. ¶ 55.) On June 26, 2013, Takla met with the former Chair of UCLA's History Department, David Myers, and requested that Piterberg be replaced by a new advisor. (Id. ¶ 61.) Professor Myers agreed, but asked her [*3]  not to speak to anyone about what happened with Piterberg. (Id.)

On July 2, 2013, Takla received an e-mail from Thomason informing her that she had interviewed Piterberg, who admitted to the "basic facts" but denied "manipulating or trying to coerce" her. (Id. ¶ 63) Thomason informed Takla that UCLA would handle her case through a process called, "Early Resolution," in lieu of a formal hearing before the Academic Senate, which was Takla's preference. (Id. ¶¶ 63, 66.) Thomason discouraged Takla from filing a written request for a formal investigation, stating that Piterberg's peers may well side with him. (Id. ¶ 71.) According to Takla, Thomason convinced her that Early Resolution was the best way to handle this matter because it would be faster and more efficient and would eliminate the need for Takla to testify before the Academic Senate. (Id. ¶ 66.) Thomason assured Takla that she would still be informed of the university's punishment and sanctions against Piterberg. (Id.) Thomason noted, however, that in order for UCLA to handle Takla's claims through Early Resolution, UCLA's Vice Chancellor of Academic Personnel, Carol Goldberg, would need to confirm that Piterberg had not sexually [*4]  harassed other women on campus. (Id. ¶ 67.) Thomason learned through her investigation that Piterberg sexually harassed another graduate student at UCLA, a junior professor in another department, and a junior professor in the History Department. (Id. ¶ 68.) Nonetheless, UCLA settled Takla's case through Early Resolution. (Id. ¶ 69.) It is against UCLA's policy on sexual harassment to proceed with Early Resolution in cases involving sexual assault or multiple complaints of sexual misconduct. (Id.)

In March 2014, nine months after Takla first reported Piterberg's harrassment, UCLA concluded its investigation without making any formal findings. (Id. ¶ 73.) The delay in concluding the investigation was in violation of UCLA's Title IX policies. (Id.) When Takla requested a formal investigative report in May 2014, Thomason informed Takla that there was no formal documentation or report, again in violation of UCLA's policies. (Id. ¶ 72.) Takla never learned the outcome of Early Resolution nor whether Piterberg was sanctioned for his conduct. (Id. ¶ 74.)

Fear of running into Piterberg and being subjected to additional sexual harassment has prevented Takla from going to UCLA's campus. (Id. ¶ [*5]  77.)

Glasgow

Glasgow alleges that she was sexually harassed by Piterberg from February 2008 to October 2013. (Id. ¶¶ 80, 81.) On July 7, 2013, Glasgow received a call from a faculty member in the History Department informing her that Takla had filed a sexual harassment complaint against Piterberg to no avail. (Id. ¶ 93.) On July 8, 2013, Glasgow reported to Thomason that she too was sexually harassed by Piterberg. (Id. ¶ 94.) Glasgow also contacted Professor Myers and informed him of this fact, but Professor Myers asked Glasgow not to share her story with others. (Id. ¶ 98.)

In August 2013, Piterberg asked Glasgow to have coffee him on campus. (Id. ¶ 115.) During this encounter, Piterberg steered the conversation toward the topic of sex. (Id.) It became clear to Glasgow at that point that Piterberg did not know that she had reported him and that Thomason had not followed up with her report. (Id.) On October 5, 2013, at an annual party for graduate students of the History Department, Glasgow was again sexually harassed by Piterberg. (Id. ¶ 118.)

***

V. CONCLUSION

In accordance with the foregoing, UCLA's motion to dismiss the First Amended Complaint is denied as to Takla's Title IX claims and granted as to Glasgow's vicarious-liability claim without leave to amend.

IT IS SO ORDERED.4

4   The Court declines to take judicial notice of Exhibit 9, an email from Thomason to Piterberg, informing Piterberg of Takla's report and instructing him to avoid contact with Takla. Plaintiffs argue that the email is admissible under California Evidence Code § 452(c), which permits a court to take judicial notice of "[o]fficial acts of the legislative, executive, and judicial departments of the United States." Whether the email in question constitutes an "official act," however, is a fact-specific inquiry that this Court declines to conduct at this stage of the proceeding.

UCLA also seeks to have this Court take judicial notice of a variety of emails. Because, at best, these emails could be judicially noticed to [*27]  demonstrate that they were sent, and not for the truth of the matters asserted, the Court declines to judicially notice them.

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