Orrick Associates Win Civil Suit for UC Davis Student Who Said She Was Raped—and Then Got Sued for Defamation
Justin Giovannettone and Rabi David, with Orrick.
It started with a depressingly familiar scenario: A college party. Too much drinking. A young woman who said she woke up with her pants down and a man on top of her.
But Yee Xiong’s case against a fellow student at the University of California at Davis took a decidedly unusual turn when her alleged attacker on the day of his sentencing sued her for defamation, seeking $4 million in damages.
The reason? She and her family called him a rapist in Facebook posts.
The man, Lang Her, pleaded no contest to felony assault by means of force likely to produce great bodily injury. He was sentenced to a year in county jail and had to register as a sex offender. Still, he had the…hmmm, what’s the right word…. let’s call it the nerve to sue Xiong and her family for defamation since he wasn’t actually convicted of rape.
Recruited by the district attorney’s office in Yuba County, California to represent Xiong, lawyers from Orrick, Herrington & Sutcliffe working pro bono made short work of the defamation claim. In 2016, the team led by McGregor Scott (who left the firm in December 2017 to be the U.S. Attorney for the Eastern District of California) got the suit tossed on anti-SLAPP grounds.
But that wasn’t the end of the story. Orrick continued to represent Xiong in a civil suit against Lang Her for sexual battery.
On Friday, Orrick associates Justin Giovannettone and Rabi David (with supervision by partner Michael Weed) won a unanimous jury verdict for Xiong after a four-day trial in Yolo County Superior Court. The jurors awarded her the full amount of damages sought—$152,400 for medical expenses and compensation for pain and suffering.
“She was ecstatic. We were ecstatic as well,” said Giovannettone of his first trial experience. He handled the closing and the direct examination of their client, while David did the opening and the cross of Yang Her. They split the other nine witnesses.
In large part, Xiong brought the civil suit in reaction to the defamation claim. That her assailant would file such a case meant to her that he “refused to accept responsibility for what he did to her,” Giovannettone said. “She was looking for vindication.”
Still, he said the Orrick lawyers weren’t originally planning to mention the defamation suit at trial. They changed their mind when Her’s lawyer, solo practitioner David Collins, went on about Xiong’s multi-lawyer, big-firm legal team, as if she was some kind of litigious Goliath. The defamation suit added context to Orrick’s representation. “We felt like we had to explain that,” Giovannettone said.
Given the timing of the trial—less than two weeks after the Brett Kavanaugh/ Christine Blasey Ford hearing—the Orrick team was also acutely aware that their client’s claims might take on a wider resonance.
But Giovannettone, who is based in the firm’s Sacramento office and earned his law degree in 2013, said that their overriding focus in court “was on the facts of this case”—and Her’s shifting story of what happened.
On July 9, 2012, Xiong, then 20, attended a party at Her’s apartment in Davis. According to the Sacramento Bee, she’d been to parties there before. Both Xiong and Her are members of the tight-knit Hmong community, and their families know each other.
She drank too much, vomited and passed out.
She says she awoke to “intense pressure on her lower body and intense pain,” according to the complaint. “He was having sexual intercourse with her without her consent. Her arms were pinned down by his, and she was unable to speak. She could not explain why. Shortly after she woke up, the defendant ceased the assault, pulled up her pants, and got into his bed.”
The next morning, he drove her to her apartment, then dropped her off at school.
“I decided my best bet was to act like nothing had happened. I was afraid that Lang would further assault me, or worst, kill me, if I knew what he did to me, so I played along with his act, and had to force myself to feel ‘nothing,’” Xiong wrote in a 2016 letter to the court.
The next day, she reported the rape to the police, and underwent an examination, where semen was found that matched Her.
He was charged with one count of rape of an intoxicated person. The case was tried twice, and both times the jury deadlocked. Prosecutors were prepared to try it a third time when Her took the plea deal.
While jurors in the criminal trial may have had a hard time with the “beyond reasonable doubt” standard (defense counsel apparently made a big deal out of Xiong accepting a ride from Her the next day), they had no problem finding for Xiong in the civil suit. The 12 jurors came to a unanimous conclusion in less than three hours.
For one thing, Her initially denied any sexual contact. It was only after he learned of forensic DNA evidence implicating him that he changed his story, claiming Xiong had consented.
“If it really was consensual,” Giovannettone said, “a normal man would not have denied it happened.”
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