Doe v. University of Southern Calif. ( 2018 )


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  • Filed 12/11/18
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SEVEN
    JOHN DOE,                           B271834
    Plaintiff and Appellant,     (Los Angeles County
    Super. Ct. No. BS152306)
    v.
    UNIVERSITY OF SOUTHERN
    CALIFORNIA,
    Defendant and
    Respondent.
    APPEAL from the judgment of the Superior Court of Los
    Angeles County, Joanne B. O’Donnell, Judge. Reversed and
    remanded.
    Werksman Jackson Hathaway & Quinn, Mark M.
    Hathaway, Mark W. Allen and Jenna E. Eyrich for Plaintiff and
    Appellant.
    Gibson, Dunn & Crutcher, Theane Evangelis, Lauren M.
    Blas and Gregory S. Bok for Defendant and Respondent.
    ______________
    John Doe appeals from the trial court’s denial of his
    petition for a writ of administrative mandamus to set aside his
    expulsion from the University of Southern California (USC) for
    unauthorized alcohol use, sexual misconduct, sexual assault, and
    rape. USC student Jane Roe1 submitted a complaint to USC
    alleging John had sexually assaulted her in Jane’s apartment
    after they both attended a “paint” party, at which the students
    splattered paint on each other. Dr. Kegan Allee, the Title IX2
    1      We identify the parties by the pseudonyms “John Doe” and
    “Jane Roe,” as used by the parties, to protect their privacy. For
    ease of reference, we refer to John Doe and Jane Roe in this
    opinion as John and Jane, and refer to the student witnesses by
    their first names to protect their identities.
    2     Title IX of the Education Amendments of 1972 (20 U.S.C.
    § 1681 et seq.) (Title IX), applicable to universities receiving any
    federal financial assistance, requires institutions of higher
    education to address discrimination on the basis of sex. These
    requirements have been applied to require universities to
    investigate allegations of sexual misconduct involving students.
    A student may bring a Title IX claim against a school for sexual
    harassment by another student where the harassment “is so
    severe, pervasive, and objectively offensive that it effectively bars
    the victim’s access to an educational opportunity or benefit,” and
    “the funding recipient acts with deliberate indifference to known
    acts of harassment in its programs or activities.” (Davis v.
    Monroe County Bd. of Ed. (1999) 
    526 U.S. 629
    , 633; accord,
    Gebser v. Lago Vista Independent School Dist. (1998) 
    524 U.S. 274
    , 283 [“sexual harassment can constitute discrimination on
    the basis of sex under Title IX”].) Sexual assault “qualifies as
    being severe, pervasive, and objectively offensive sexual
    harassment that could deprive [plaintiff] of access to educational
    opportunities provided by her school.” (Soper ex rel. Soper v.
    Hoben (6th Cir. 1999) 
    195 F.3d 845
    , 855; accord, Lopez v. Regents
    2
    investigator, who served as the investigator and adjudicator of
    the complaint pursuant to USC’s administrative guidelines,
    found by a preponderance of the evidence John knew or should
    have known Jane was too drunk to consent to sexual activity. In
    addition, Dr. Allee concluded even if Jane had consented to
    vaginal sex, she had not consented to anal sex, as evidenced by
    blood observed in her apartment on the mattress, sheets, and
    carpeting later that day by Jane and another student.
    John contends on appeal he was denied a fair hearing. We
    agree. Dr. Allee did not interview three central witnesses,
    including the two witnesses who observed Jane’s apartment after
    the sexual encounter—one described a large puddle of blood on
    the mattress and blood on the sheets and carpeting; another saw
    the apartment earlier that day and did not see any blood. Jane
    relied on the third witness to help her reconstruct what happened
    the morning of the incident. Instead, Dr. Allee relied on the
    summary of the interviews by another Title IX investigator,
    Marilou Mirkovich. Accordingly, Dr. Allee was not able to assess
    the credibility of these critical witnesses during the interviews.
    Because Dr. Allee’s investigative report and adjudication
    turned on witness credibility, Dr. Allee should have interviewed
    all critical witnesses in person or by videoconference to allow her
    to observe the students during the interview. This was especially
    important here where there were inconsistencies in the testimony
    and a dispute over whether the substances observed in Jane’s
    apartment after the sexual encounter were blood or paint from
    the paint party. In addition, USC did not comply with its own
    procedures to conduct a fair and thorough investigation by failing
    of the University of California (N.D.Cal. 2013) 
    5 F. Supp. 3d 1106
    ,
    1124.)
    3
    to request that Jane provide her clothes from the morning of the
    incident and her consent to release her medical records from the
    rape treatment center.
    We reverse and remand to the trial court with directions to
    grant John’s amended petition for a writ of administrative
    mandamus.
    FACTUAL AND PROCEDURAL BACKGROUND
    A.    Events Prior to the Incident
    On April 12, 2014 Jane and Sarah went to Jane’s
    apartment to get ready for two parties they planned to attend
    that evening.3 While they were at Jane’s apartment, they each
    had one beer and possibly shared a second beer. Each of them
    had one shot of alcohol at the first party. They then went to
    Sarah’s apartment around 9:30 p.m., and Jane and Sarah began
    drinking honey whiskey shots. Sarah reported she and Jane may
    have had three shots each while at Sarah’s apartment. Jane
    stated she did not drink more than two or three shots. Around
    10:00 p.m. Carter arrived at Sarah’s apartment, followed by
    John. John was Carter’s friend from the same hometown.
    Around 11:00 p.m. Emily joined the group.
    The group walked over to the paint party together. At the
    party, the attendees splattered each other with jugs of paint.
    Sarah stated there was a lot of red paint at the party, and she
    3     We summarize the facts from the administrative record,
    including the interview summaries prepared by the Title IX
    investigators, the cell phone records submitted by Jane, the
    written statement provided by Jane’s friend J.D., the USC
    Department of Public Safety report, and the Los Angeles Police
    Department investigative report.
    4
    had red paint behind her ears and on her body for days after the
    party. Sarah reported the day after the party the red paint
    looked like “bruises and blood.” Sarah and Jane shared a drink
    at the party. Emily observed Jane was “very flirty,” putting her
    arms around young men and sitting on their laps. Jane sat on
    Austin’s lap, which Sarah thought was “weird” because Austin
    was “creepy” and “older.” Emily saw John with his arm around
    Jane. Jane told Dr. Allee, “[John] was apparently always around
    me all night. I remember there was a long-haired person always
    near me with a USC shirt.”
    Carter told Dr. Allee that John was with him at the party
    most of the night because John did not know the other students.
    Carter described Jane, John, and Sarah as “very drunk.” Carter
    explained that before the party Jane “was very quiet and
    reserved, but later at the party she was doing stuff that was
    totally not like her.” He said it would have been obvious she was
    “really drunk” because she was having difficulty walking, “[s]he
    was hanging on people a lot,” sat on a strange male’s lap, and was
    waving her drink around. But she spoke in full sentences and did
    not have slurred speech. He did not see Jane fall down, although
    he only saw her “at random times.” Carter described himself and
    Emily as being only “tipsy.”
    Vance was a friend of Andrew, whom Jane was dating.
    Vance told Dr. Allee that Jane “was very drunk” at the party.
    Jane tried to dance with Vance, but “[s]he fell down a couple of
    times.” He saw Jane fall down three times towards the end of the
    party: first when she threw buckets of paint on other people;
    then when she was dancing with a group; and a third time when
    she was outside on the street curb with two female friends.
    Jane also described herself as intoxicated and falling down.
    She told Dr. Allee, “I lost complete control of that 3rd eye that I
    5
    always [had] to be aware of how intoxicated I am.” She added,
    “The next day my tailbone super hurt and my back felt thrown
    out.”
    At 1:49 a.m. the next day Jane sent a text to Andrew,
    stating, “Vance is helping me walk home [¶] Help.”4 At
    2:04 a.m. she added, “Blackout [¶] Vance helped.” Then at
    2:40 a.m. she texted, “Sort of [¶] He seems okay with i[t] all. . . .”
    Vance later told Jane he remembered another male was with
    Jane and Sarah, but he did not know who it was.
    At the end of the party, Jane, Sarah, Emily, Austin, Carter,
    and John left the party together. As they were leaving, Carter
    saw Jane “hanging on” to Sarah and John. Carter and Emily
    walked ahead of the group. Emily described Jane as “very
    drunk,” but she was walking “ok.” At some point Carter left to
    walk to his apartment, and Emily rejoined the group.5
    Jane walked back to her apartment with John. Emily and
    Sarah went to Sarah’s apartment so Emily could charge her
    phone. At 2:14 and again at 2:55 a.m. Jane sent texts to Emily
    and Sarah to inquire whether they were coming back to her
    apartment. Emily responded that they were looking for Sarah’s
    phone, and asked if Jane was with John. Jane responded that
    she was. Emily and Sarah later walked to Jane’s apartment to
    use Jane’s computer to track down Sarah’s cell phone.
    4    According to Vance, he offered to walk Jane home, but
    Sarah told him firmly he was not needed. Although Jane texted
    Andrew that Vance walked her home, it is undisputed John
    walked Jane to her apartment.
    5     The record does not reflect when Austin left the group.
    6
    B.     The Incident
    Emily and Sarah arrived at Jane’s apartment about
    3:30 a.m. on April 13, 2014.6 Emily opened Jane’s apartment
    door without knocking.7 When Emily and Sarah walked into the
    apartment, Jane and John were naked on the air mattress in the
    living room. Emily stated John did not cover himself; he
    remained on the air mattress completely naked. Sarah saw “two
    dark figures” on the air mattress, but she did not know the
    second person was John. The lights were off, and Sarah did not
    see paint around the air mattress. When Emily asked to use
    Jane’s computer, Jane became “frantic” and could not find the
    computer, even though it was in plain view. After Emily picked
    up the computer, Jane guided her out the front door. Emily
    heard the door locking and assumed Jane locked the door because
    she had led Emily out. Jane told Dr. Allee that John had said,
    “Lock the door.” Emily and Sarah sat outside Jane’s apartment
    door trying to use the computer. At 3:36 a.m. Emily sent a text
    message to Jane saying they had left the computer outside Jane’s
    apartment. Emily and Sarah returned to Emily’s apartment.
    Jane described the sexual encounter to Dr. Allee: “I
    blacked out. My friends came to my apartment and found me
    having sex with John. I was nervous. Agitated, but I can’t
    remember why. He was having sex with me but I wasn’t
    responding back. He flipped me over and pushed my head down.
    6     Security video footage from the elevator showed Emily and
    Sarah exiting the elevator to Jane’s floor at 3:31 a.m., then
    reentering the elevator from Jane’s floor at 3:38 a.m.
    7     Jane kept her door unlocked because she lived at the end of
    a hallway, and it was not apparent there was an apartment
    there. Sarah stated it was normal for Emily and her to walk into
    Jane’s apartment without knocking.
    7
    He entered me from behind. That was really painful! The only
    thing I remember saying was ‘condom’ because I was probably
    really nervous he wasn’t using one. Pain pulled me out of the
    black out. I was in so much pain.” Jane added, “The most vivid
    memory is the pain from the anal intercourse. I shouted from
    [the] pain. I’m pretty sure it was loud. There was aggression to
    make him stop.” After the encounter Jane went to her bedroom
    to hide. According to Jane, John came in and told her, “I crossed
    a boundary,” and left the apartment. Security footage from the
    elevator showed John entering the elevator from Jane’s floor at
    3:57 a.m.
    Dr. Allee asked Jane if she had sensory memories from that
    night. Jane responded, “Yeah, I have a lot of those. I currently
    can’t smell alcohol without throwing up. I can’t be touched below
    my torso without freaking out. I have this terrible panic if
    someone hugs me without telling me. I remember the sensation
    of throwing up the rice, but not where or how. I remember the
    light when my friends opened the door to the apartment. I
    remember the pain of the flipping me over. Most of the memories
    come from Emily. Sarah wasn’t unconscious but behaving very
    strangely, which is why Emily was focused on her.”
    At 3:49 a.m., after John left the apartment, Jane sent a text
    message to Emily: “[I]s [Sarah] okay?!? [¶] Fuck [¶] I was so
    drunk [¶] Ow [¶] That wasn’t what I wanted.” Jane then
    texted, “I was taken advantage of but it’s fine” and “It happens.”
    At 4:00 a.m. Jane called J.D., a high school friend who lived
    in a different state. J.D. provided Dr. Allee a written statement
    describing his conversation with Jane:8 “[Jane] was crying when
    8     J.D. told Dr. Allee he wrote the statement the same
    morning after he spoke with Jane a second time and realized she
    did not remember their 4:00 a.m. conversation.
    8
    I picked up and she disclosed she had had a very bad sexual
    encounter and she wasn’t really sure how everything had
    happened. She said that it hurt a lot and she was still in pain.
    She kept apologizing through tears and I told her that she had
    nothing to apologize for and there was nothing she had done
    wrong. She had met him at the party and she couldn’t remember
    his name. . . . They had walked in on [her] and the guy having
    sex, but they didn’t realize what was going on and she couldn’t
    communicate it. She couldn’t remember if she had verbally
    consented to anything or not and I said it didn’t matter because
    she was obviously intoxicated and she had told me that she even
    threw up before he hooked up with her. She was disoriented and
    panicked and was embarrassed because she couldn’t really
    remember what happened between the party and her apartment
    or how the guy had come back with them. She had made him
    leave the apartment some period of time prior to the
    conversation, and she said she was really scared and had locked
    the door of her apartment.”
    At 9:21 a.m. Jane called J.D. again after seeing his text
    message telling her to call him. J.D. stated, “When she called the
    next morning, she was really struggling to remember the
    chronology of events and had completely forgotten that she had
    thrown up. . . . She still didn’t remember his name and could
    only vaguely remember walking back, with no idea how he joined
    their party. She then disclosed to me that there was blood on the
    sheets and mattress and they were freaking her out but she
    wasn’t sure what to do about them. This alarmed me for obvious
    reasons and I believe it was at this point she disclosed to me that
    they had had anal intercourse. She was still in some
    discomfort. . . . Later, [Jane] called me in a panic saying that she
    had found the guy’s wallet in her apartment and was really
    9
    scared he was going to come back for it and she wasn’t sure what
    to do or whether to bring it to the rape clinic. We decided she
    should take it.”
    Jane told Dr. Allee that when J.D. reminded her she had
    told him she threw up, she “remembered the feeling of throwing
    up the rice.” Jane found a bowl of rice in the kitchen. Jane told
    Dr. Allee she was covered in blood in her rectal area and on her
    thighs. She put on a maxi dress to cover the blood and paint, and
    wiped the paint off her face before she went outside. Jane found
    a condom with fluids and put it in a bag, but she was concerned it
    might have belonged to Andrew. Jane put all the clothes she had
    been wearing into another bag.
    On the morning of April 13 Sarah went to Jane’s
    apartment. When she arrived, Jane was on the phone, dressed in
    a maxi dress. Sarah did not remember seeing blood or paint on
    the floor or mattress, but thought the air mattress was gone and
    the apartment “looked really empty” and “seemed cleaner.”
    Sarah collected her belongings from the night before and left the
    apartment after about five or 10 minutes.
    Andrew did not attend the paint party. He fell asleep
    around 2:00 a.m., then woke up about 10:30 a.m. He had
    received text messages from Jane throughout the night. He
    spoke with Jane and deduced she had been assaulted after she
    told him she could not change her clothes or drink water. Later
    that day Andrew had a previously scheduled lunch with Vance.
    At lunch, Andrew asked Vance about the party and learned that
    someone was “hanging” around Jane. Vance told Andrew that
    Jane had been “unusually intoxicated” at the party and he had
    seen her fall down.
    Although John did not provide a statement, Carter relayed
    to Dr. Allee what John told him on April 13. When Carter woke
    10
    up that morning, he saw text messages from John saying he was
    worried because Jane “was freaking out.”9 John called Carter
    later that day while Carter was on his way home. Carter told
    Dr. Allee, “[John] told me that they got back to her apartment.
    They were making out and she was like ‘do you have a condom?’
    He didn’t know it would go that far. He asked if it was okay and
    she said, ‘don’t ask, just do it.’ They started having sex, and I
    don’t know why John did this. She flipped over so he thought she
    wanted to have anal sex. So he did and she flipped out like any
    girl would. She threw stuff at him and was yelling. He asked me
    what he did wrong and I said, ‘of course you did something very
    wrong.’ . . . He asked permission. He’s very polite.”
    Carter recounted that John asked permission to have sex,
    but not anal sex “because she seemed turned off when he asked
    the 1st time.” John said he immediately stopped when Jane told
    him to, then left the apartment. Carter added, “[John] said he
    didn’t see blood. He was very confused when he heard that.”
    John told Carter Jane was never bleeding.
    C.     Jane’s Visit to the Rape Treatment Center
    About 11:00 a.m. on April 13 two USC Department of
    Public Safety (DPS) officers drove Jane to the Santa Monica-
    UCLA Medical Center, Rape Treatment Center (rape treatment
    center). Jane told the officers she had been sexually assaulted by
    an acquaintance around 2:00 a.m. that day, and she had been
    drinking. When two Los Angeles Police Department (LAPD)
    officers arrived at the rape treatment center, Jane told them she
    did not want to speak about the incident or make a report. Jane
    9    Carter told Dr. Allee he no longer had the text messages
    because he got a new cell phone.
    11
    was seen by a psychologist and a nurse practitioner. The center
    obtained a SART kit10 from the examination, but Jane did not
    want to release the kit to the LAPD officers.
    Jane told Dr. Allee she was “freaked out” by the DPS
    officers and was overwhelmed when the male LAPD officers came
    to the rape treatment center because she did not want to look at
    any males. Jane was at the rape treatment center from
    approximately 12:30 to 4:30 p.m. While Jane was there, John
    texted her at 3:38 p.m. and asked, “Hey I think I might’ve left my
    wallet at your place, have you seen it around?” Jane did not
    remember giving John her cell phone number and did not reply.
    D.     Subsequent Events
    On the afternoon of April 13 Andrew picked Jane up from
    the rape treatment center. It was not until then that Jane
    opened John’s wallet and saw his name. Andrew and Jane went
    to the police station, and Andrew dropped off the wallet, saying
    he found it on the street. At 4:25 p.m. Jane texted J.D. to say, “I
    look like a battered convict. Mostly because the paint looks like
    bruises. And I’m in [an] all grey sweatsuit.”
    Jane and Andrew next went to Jane’s apartment. Only
    Andrew went inside; Jane waited in the hallway. Mirkovich
    summarized her interview with Andrew: “He stated that when
    he walked in, he ‘realized that everything was disheveled’—there
    was a basket of clothes strewn about and ‘throw-up.’ Then he
    noticed that [there were] puddles of blood on the air mattress,
    10    A sexual assault response team (SART) kit is collected by a
    medical practitioner and typically contains the results of a sexual
    assault examination or evidence collected in response to an
    alleged sexual assault. (See People v. Uribe (2008) 
    162 Cal. App. 4th 1457
    , 1463.)
    12
    which were about 6 inches in size, and a used condom. He stated
    that there was ‘a lot of blood’ on the sheet and that there was
    blood on the carpet—which he stated does not show on the photo.
    He described it as ‘very bloody.’ When he left the apartment, he
    told [Jane] that she ‘probably [did not] want to go in there [her
    apartment].’” Jane asked Andrew to deflate the air mattress and
    throw away the sheets, so he “put the sheets down the ‘garbage
    chute.’”
    Jane told Dr. Allee, “After speaking to the counselor at the
    Rape Treatment Center I knew there wasn’t enough evidence for
    a criminal case and I just couldn’t look at the blood. Andrew
    threw the bloody sheets and air mattress down the trash chute.
    I’m pretty sure there is still a blood stain on the carpet. I’d look
    the other way while he threw the bloody sheets and mattress
    away. . . . Maybe it was a bad idea to throw away the bloody
    sheets, but I knew I didn’t want to go through an 18 month
    investigation or have my name out there.”
    At 7:48 p.m. John texted Jane stating, “I am so sorry about
    last night. I made a drunken mistake and feel horrible about it.
    I had no right to do what I did and I’m so so sorry. I hope you can
    forgive me.”
    E.    The Investigation
    On April 30, 2014 Jane submitted a complaint to the USC
    Office of Student Judicial Affairs and Community Standards
    (SJACS) stating John had sexually assaulted her in the early
    morning of April 13, 2014.11 Dr. Allee interviewed Jane by Skype
    11    USC’s 2013/2014 SCampus Student Guidebook (Guidebook)
    provides that a student who alleges sexual misconduct can file a
    formal report with SJACS. (Guidebook, § 17.01.A.) The
    Guidebook provides further that as part of the investigation into
    13
    about the incident. Jen was present as a support person and
    advisor for Jane during the interview; she was not affiliated with
    the USC community.
    On May 1, 2014 Dr. Allee sent Jane an e-mail stating in
    part, “I have already received [J.D.’s] written statement to add to
    the evidence gathered thus far (your screenshots, contact list,
    UCLA records,[12] etc.). [¶] . . . [¶] I do have one request for you.
    Yesterday you mentioned that there is someone in [Los Angeles]
    who can get into your apartment. Jody [Shipper][13] and I would
    like to get into there early tomorrow morning, or as soon as
    possible to take photographs. Is this something that can be
    arranged?” In response, Jane wrote, “My mom is sending photos
    that my godsister took when she was getting some of my
    a complaint, “the investigator will ask for all information
    relevant to the allegations. For both parties, this is their
    opportunity to present any information regarding the incident,
    including names of witnesses, the existence of documents or
    videotapes, or any other information the parties feel may be
    relevant. Both parties may also present supplemental
    information during the course of the investigation, until the
    investigator makes findings.” (Guidebook, § 17.02.C.) Following
    the investigation, the investigator makes findings of fact as to
    whether by a preponderance of the evidence there has been a
    violation of the student conduct code, and can impose sanctions
    after consultation with the SJACS director. (Guidebook,
    §§ 17.02.D, 17.06.A.) Sanctions can include “expulsion,
    suspension, revocation of degree and revocation of admission.”
    (Guidebook, § 17.06.B.)
    12    The rape treatment center sent Dr. Allee a letter
    confirming Jane was seen at the center on April 13, 2014 for an
    emergency medical-forensic examination following her report of a
    sexual assault.
    13    Shipper was the Title IX coordinator at USC.
    14
    belongings to send back. Since I was in and out of my apartment
    and cleaned up some things (threw away all the sheets) there
    would not be much to see, but the pictures should be sufficient.
    [¶] The blood soaked through a little on the mattress pad and
    there’s stains on the living room floor. [¶] If it’s absolutely
    mandatory after you view the photos, I can discuss getting a key.”
    On May 3, 2014 DPS served John with three letters dated
    May 2, 2014. The first letter notified John that USC had received
    a complaint alleging he violated seven provisions of the student
    conduct code: section 11.32.B (endangering others); section 11.40
    (unauthorized alcohol use); section 11.44.B (lewd or obscene
    behavior); section 11.51.A (harassing or threatening behavior);
    section 11.53.A (sexual misconduct); section 11.53.B (sexual
    assault); and section 11.53.C (rape).14 The letter identified the
    date of the incident (4/13/2014), stated the location (off campus),
    and provided definitions for the alleged violations.
    The second letter requested John and Jane refrain from
    any contact with each other. In the third letter, USC placed John
    on interim suspension because Jane’s complaint indicated John’s
    14     The Guidebook section 11.40 defines “unauthorized alcohol
    use” as “[u]nauthorized use, possession or dissemination of
    alcohol in the university community or at university-sponsored
    activities.” Section 11.53.A defines “sexual misconduct” as
    “[e]ngaging in non-consensual sexual conduct or lewd, indecent or
    obscene behavior, which is sexual in nature, within the university
    community or at university-sponsored activities.” Section
    11.53.B defines “sexual assault” as “[n]on-consensual actual or
    attempted intercourse, sexual touching, fondling and/or groping.”
    Under section 11.53.C, “[a] sexual assault is classified as rape
    when vaginal, anal or oral penetration, with a body part or object,
    takes place without the meaningful consent of the person
    penetrated.”
    15
    behavior “created a clear and present danger to the safety and
    well-being of the university community and members thereof.”15
    Dr. Allee was the initial Title IX investigator before she
    was replaced in May 2014 by Mirkovich, an outside attorney.16
    Mirkovich interviewed Emily on May 21, Andrew on May 23, and
    Sarah on June 4, 2014. The case was transferred back to
    Dr. Allee on June 5, 2014. Dr. Allee did not reinterview Emily,
    Andrew, or Sarah. Dr. Allee conducted telephone interviews of
    J.D., Vance, and Carter17 on May 6, August 14, and August 19,
    2014, respectively.
    On May 30, 2014 John’s attorney sent an e-mail to
    Mirkovich and Shipper requesting “all documents and relevant
    15    USC suspended John because Jane told Dr. Allee “she may
    have been ‘roofied’” and John had been “hanging around” her
    while she was drinking. Dr. Allee later determined there was
    insufficient evidence to conclude John drugged Jane.
    16    According to Shipper, Mirkovich was hired as a Title IX
    investigator to handle overflow cases from her office.
    17    Dr. Allee invited the parties to provide comments on
    Carter’s statement by noon of the next day. In response, Jane
    e-mailed Dr. Allee later that evening, expressing her concern that
    Carter was offering opinions on John’s “conduct without
    witnessing it” and recounting John’s “stories.” Jane also stated,
    “Regarding the ‘gap in story’ about the blood; since forensic
    evidence was not requested for the investigation, it was not
    provided, but if we were not thorough enough please let me know,
    as I would be more than willing to provide further clarification. I
    did the best I could to express over the phone and by providing
    evidence to the clinic hours following the incident, just how much
    emergency medical attention was required.” John’s counsel also
    provided a written response to Carter’s interview on August 20,
    2014, contending both John and Jane were inebriated but
    voluntarily consented to the sexual contact.
    16
    information gathered to date as part of the investigation,
    including but not limited to the statements the complainant
    made to DPS personnel, to Los Angeles Police personnel, to
    Student Counseling, to personnel at the Rape Treatment Center,
    and any other witness statements. I would also like to arrange
    for independent laboratory testing of the condom and
    complainant’s clothing that the complainant preserved from the
    alleged incident.”
    On June 3, 2014 and continuing through the course of the
    investigation, Shipper provided John with summaries of the
    witness interviews, the DPS and LAPD reports, text messages,
    call logs, and other information the investigators gathered.18
    Shipper contacted the rape treatment center and LAPD to
    inquire about the condom and Jane’s clothing, but they would not
    confirm what they collected or release any evidence being held as
    property of law enforcement. John’s attorney informed Shipper
    he learned the rape treatment center retained the condom from
    the sexual encounter, but not Jane’s clothing. He asked USC to
    follow up with Jane to obtain the clothing.
    On June 11, 2014 Dr. Allee notified Jane by telephone that
    John had requested “her clothing, if she still has it, and the
    condom (from SM/UCLA Rape Treatment Center) in order to do
    independent testing.” Dr. Allee told Jane that John also
    requested the last name of Jane’s support person. Dr. Allee
    wrote in her notes from the call, “[Dr. Allee] believes that [John]
    would like to do this testing on his own in order to better respond
    18    In response to a request from John’s attorneys for interview
    notes and audio of video recordings of interviews, Shipper stated,
    “Neither party gets the notes from interviews, but is instead
    provided with the transcribed interview notes. The university
    does not use audio recordings for interviews.”
    17
    to the allegations. Therefore the request is coming from John
    Doe rather than from [Dr. Allee] or USC.”
    John never received Jane’s medical report or other evidence
    from the rape treatment center, or Jane’s clothing from the night
    of the incident. John also requested, but did not receive Jen’s last
    name.
    On June 18, 2014 Dr. Allee met with John and his attorney.
    John provided two photographs of his shorts and shoes from the
    night of incident; they were stained with paint. He declined to
    provide a statement in light of the pending LAPD investigation.
    Dr. Allee inquired if John had any other witness names or
    information, and he responded he did not. Finally, Dr. Allee
    informed John she had a letter from the rape treatment center
    confirming the date Jane sought services from the center.
    On August 14, 2014 Dr. Allee provided Jane and John with
    security camera footage of them in the elevator on the way to
    Jane’s apartment. Dr. Allee asked Jane to confirm the footage
    showed Jane and John, and later Sarah and Emily.19 Dr. Allee
    also wrote to Jane, “Is there a good time to speak with you
    tomorrow? I just have a quick question that would be better
    discussed on the phone.”
    F.    Summary Administrative Review
    On August 20, 2014 Dr. Allee concluded her investigation
    and issued her summary administrative review. Dr. Allee
    observed, “Although the complainant did not recall many of the
    events from approximately 2 am until 3:30 or 4 am, she stated
    19    Although the record does not indicate whether Jane
    provided any additional information, Dr. Allee’s report reflects
    that the elevator footage shows Jane, John, Sarah, and Emily.
    18
    that she had spoken to [Emily, Sarah, and Andrew] to help
    reconstruct that time.” Dr. Allee noted Jane reported “there was
    a long-haired person always near me with a USC shirt,” and
    Dr. Allee inferred that person was John because the elevator
    camera footage showed he “had long hair and was wearing a
    cardinal-colored USC t-shirt and khaki shorts.” As part of the
    investigation, Dr. Allee considered the witness statements, the
    two photographs of John’s clothing, records of Jane’s phone calls
    and text messages, Jane’s photographs of her apartment, elevator
    security camera footage,20 the DPS and LAPD reports, and the
    verification of services letter from the rape treatment center.
    Dr. Allee summarized the witness statements and found John
    violated the student conduct code.
    Dr. Allee concluded, “After a thorough, neutral and
    impartial investigation, I find Mr. Doe responsible for violating
    the student code of conduct. This decision was reached after a
    thorough review of all of the relevant evidence, as noted above. I
    find it more likely than not that Mr. Doe knew or should have
    known, regardless of his own intoxication, that the complainant
    was too drunk to consent to sexual activity. Based on witness
    statements, Mr. Doe was around the complainant at the party
    and left the party with the complainant and her friends. I find it
    more likely than not that he would have seen her having
    difficulty walking and possibly falling down, especially given
    [Carter’s] statement that she was hanging on [Mr. Doe] after they
    left the party. Careful observation of the elevator footage also
    reveals that the complainant pressed the wrong button in the
    20    In response to our request, on October 4, 2018 USC lodged
    the color photographs submitted by Jane and the security camera
    footage from the elevator, which were part of the administrative
    record.
    19
    elevator (on the wrong column of buttons, not simply the one
    above or below), and that she seemed confused (looking around
    on each floor as doors opened for other residents and appears to
    start to exit three times before finding her floor). The
    complainant also vomited rice in the kitchen before the alleged
    assault occurred, and the vomit was visible when [Andrew]
    walked into the apartment the next day (and therefore [Mr. Doe]
    would more than likely have known she vomited). Although the
    video footage shows the complainant walking on her own and
    interacting with other people in the elevator, I find it more likely
    than not that [Mr. Doe] would have seen her having difficulty
    walking, pressing the wrong elevator buttons, and vomit, clear
    indicators that she was too intoxicated to consent.[21] Therefore,
    even if she did appear to consent to vaginal sex, she was too
    incapacitated to understand who, what, where, when, and why
    21     The Guidebook states, “Consent is defined as positive
    cooperation. Consent is informed, knowing and voluntary.
    Consent is active, not passive. Silence, in and of itself, cannot be
    interpreted as consent. When people consent to sexual activity,
    they will have indicated, verbally or otherwise, that they are
    participating willingly, freely and voluntarily. Consent is an
    ongoing process in any sexual interaction. Consent may be
    withdrawn at any time during a sexual interaction. The
    existence of a dating relationship between the persons involved,
    or the fact of past sexual relations between them, should never by
    itself be assumed to be an indicator of consent. [¶] If you have
    sexual activity with someone you know to be—or should know to
    be—mentally or physically incapacitated (by alcohol or other drug
    use, unconsciousness or passed out), you are in violation of this
    policy. Incapacitation is a state where one cannot make a
    rational, reasonable decision because he or she lacks the ability
    to understand the who, what, when, where, why or how of the
    sexual interaction.”
    20
    and thus could not properly consent (the university defines
    sexual assault as any physical sexual act perpetrated upon a
    person . . . where the ability to give or withhold consent is
    impaired due to the influence of alcohol or other drugs).
    Furthermore, she did not consent to anal sex. Moreover, the
    evidence provided demonstrates that the complainant acted in
    ways consistent with the belief that she had been sexually
    assaulted, and that this behavior occurred immediately after the
    incident. Mr. Doe also apologized twice, once verbally and again
    in a text message, noting that he ‘had no right to do what (he)
    did.’” (Fn. omitted.)
    Dr. Allee addressed the two photographs of John’s khaki
    shorts and red shoes that showed “extensive paint stains in the
    colors of red, yellow, and blue (in the order of prominence).”
    Dr. Allee stated, “Mr. Doe has made no statements on his own
    behalf, but presumably the photographs were offered to
    demonstrate that there was paint on the sheets and mattress,
    and that the pools of red and streaks of red seen on the carpet
    and mattress the next day were not blood. Although it is possible
    that some of the red substance on the sheets, air mattress, and
    carpet was paint, the complainant and [Andrew] specifically
    described blood. However there was no yellow or blue, only red,
    and red was also seen as being a larger pool, which is
    inconsistent with leftover dried paint transferred from clothing
    and skin several hours later. Furthermore, the complainant
    reported ‘I realized I was covered in blood in my rectum area and
    on my thighs. I put on a maxi dress to cover the blood and paint.’
    This statement indicates she made a distinction between the
    blood and the paint. [Andrew] said there were puddles of blood
    on the air mattress, ‘a lot of blood’ on the sheet, and that there
    was blood on the carpet—which he stated does not show on the
    21
    photo. He described it as ‘very bloody.’ He also did not describe
    yellow or blue, or the other paint colors that would also have
    transferred.”
    Dr. Allee found Sarah’s conflicting statement—that there
    was no blood in Jane’s apartment in the morning after the sexual
    encounter—was not “sufficiently reliable.” Dr. Allee explained,
    “[Sarah’s] statement contains several inconsistencies regarding
    the appearance of the complainant’s apartment. She stated that
    on the one hand the complainant’s apartment is always ‘pretty
    messy,’ and that she ‘wouldn’t have noticed a difference if it was
    messier’ than earlier that day. She also stated that the next
    morning the apartment ‘seemed cleaner.’ Further, it is unclear
    how long she was at the complainant’s apartment the next
    morning. She reported she grabbed her stuff and left, and then
    that she was there for five to ten minutes. Therefore, her
    observations on the appearance of the apartment are not
    considered sufficiently reliable.”
    Dr. Allee imposed the sanction of expulsion and prohibited
    John from having any contact with Jane. Dr. Allee advised the
    parties, “A permanent notation of expulsion will appear on the
    student’s academic transcript . . . .”
    G.    John’s Appeal to the Student Behavior Appeals Panel
    On September 4, 2014 John appealed Dr. Allee’s decision to
    the Student Behavior Appeals Panel (Appeals Panel).22 John
    22     USC provides for an appeal from the investigator’s decision
    to a three-member Appeals Panel. (Guidebook, §§ 17.07.A,
    17.07.F.) The Appeals Panel does not provide for an in-person
    hearing; instead, “all appeals are documentary reviews in which
    no oral testimony is taken and no oral argument takes place.”
    (Guidebook, § 17.07.C.) USC limits an appeal to three grounds:
    22
    contended he was not provided a fair hearing, the findings did
    not support the decision, exculpatory evidence was destroyed or
    not made available, Dr. Allee failed to follow USC rules and
    regulations in her investigation, and the sanction imposed was
    excessive. Jane responded to John’s appeal, stating there was no
    new evidence, John had provided “a rather distorted view of the
    facts that do exist,” and John “does not explain how the damage
    done to my body demonstrates consent; he simply fails to discuss
    it at all.”
    The Appeals Panel denied John’s appeal, noting John had
    failed to address the three grounds set forth in the USC
    guidelines. The Appeals Panel concluded there was “significant
    eyewitness testimony that Ms. Roe was severely intoxicated” and
    unable to consent. Further, even if she consented to sexual
    activity, the “evidence does not support Mr. Doe’s contention that
    he stopped all physical activity once he realized that he did not
    have consent to perform anal intercourse. Rather, the evidence
    indicates that Mr. Doe continued performing anal intercourse
    with Ms. Roe despite that it was causing her physical injury,
    including a significant amount of bleeding.” The Appeals Panel
    recommended immediate expulsion and avoidance of all contact
    with Jane. On November 12, 2014 vice provost Ainsley Carry
    “1. That new evidence has become available which is sufficient to
    alter the decision and which the appellant was not aware of or
    which could not have been reasonably obtained at the time of the
    original review. [¶] 2. That the sanction imposed is excessive,
    insufficient or inappropriate. [¶] 3. That the investigator failed
    to follow university rules while reviewing the cited behavior.”
    (Guidebook, § 17.07.D.) The Appeals Panel drafts a
    recommended decision, which the vice provost of student affairs
    may modify before it becomes final. (Guidebook, § 17.07.F.)
    23
    informed John that Carry had approved the Appeals Panel
    decision, which became final.
    H.      The Trial Court Writ Proceeding
    On January 22, 2015 John filed an amended petition for a
    writ of administrative mandamus under Code of Civil
    Procedure23 section 1094.5, raising procedural and substantive
    challenges.24 In his opening brief John argued he was denied fair
    process and USC’s findings were not supported by substantial
    evidence. John contended the investigation was unfair because
    “USC failed to provide exculpatory evidence of Ms. Roe’s [rape
    treatment center] report, clothing from the date of the alleged
    incident, and the condom(s) that were found in her apartment.”
    John also argued he was not provided an “impartial hearing
    panel or truly independent adjudicator.” In addition, “Dr. Allee
    failed to conduct independent interviews” of Emily, Sarah, and
    Andrew; instead, she relied on Mirkovich’s interview summaries.
    John contended “USC deprived [him] of his right to cross-
    examine witnesses, and instead relied on Dr. Allee to conduct her
    self-proclaimed thorough and impartial investigation. Dr. Allee
    failed to examine witnesses on weaknesses in their stories and
    fill in gaps in other witnesses’ stories.” John also argued USC
    failed to provide Jen’s last name or identify the members of the
    23    Further undesignated statutory references are to the Code
    of Civil Procedure.
    24    As we noted in Doe v. University of Southern California
    (2018) 28 Cal.App.5th 26, “The remedy of administrative
    mandamus is available to review adjudicatory decisions of private
    organizations, including universities.” (Id. at p. 31, fn. 9; accord,
    Doe v. University of Southern California (2016) 
    246 Cal. App. 4th 221
    , 237 & fn. 9.)
    24
    Appeals Panel. Finally, John challenged the selective
    enforcement of the unauthorized alcohol use provision of the
    student conduct code because Jane was not disciplined for
    violating it.
    In its opposition USC argued John had been provided a fair
    hearing and Dr. Allee’s findings were supported by substantial
    evidence. As to the evidence, USC asserted it had requested, but
    was not able to obtain, the condom, Jane’s clothes from the night
    of the incident, and Jane’s private medical records from the rape
    treatment center.
    After taking the case under submission, on February 8,
    2016 the trial court issued a 40-page ruling denying John’s
    petition. The trial court found there was substantial evidence to
    support USC’s decision. The trial court deferred to USC’s finding
    that Jane’s testimony was credible that she lacked the capacity to
    consent and did not consent to the sexual activity, and noted her
    testimony was corroborated by Andrew and J.D.
    As to John’s fair hearing claim, the trial court found John
    did not adequately present his contentions because his “bullet-
    points contain[ed] no citations” to case law or the administrative
    record. Nonetheless, the court found the USC procedures
    provided John notice of the charges, “a ‘fair, thorough, neutral
    and impartial investigation,’” the right to inspect documents and
    information, the right to present witnesses and information, the
    right to a written decision by the investigator, and the right to
    appeal the decision, and therefore satisfied “the due process
    requirements for post-secondary expulsion hearings set forth in
    Goldberg [v. Regents of University of California (1967)
    
    248 Cal. App. 2d 867
    ].”
    The trial court rejected John’s contention that due process
    entitled him to cross-examination of witnesses and to learn the
    25
    identities of Jane’s advisor and the Appeals Panel members. In
    addition, while John had “[t]he right to a neutral adjudicator,” he
    failed to demonstrate he was denied that right. The trial court
    concluded that in the absence of evidence rebutting the
    presumption that a hearing officer is “an impartial arbiter,” there
    was “nothing per se improper with Dr. Allee’s role as both an
    investigator and adjudicator.” The court rejected John’s
    contention he had a right to Jane’s medical records from the rape
    treatment center, Jane’s clothing, or the condom, stating that
    John “provides no authority for the proposition that [USC], a
    private institution conducting a non-criminal disciplinary
    proceeding, is required to provide him with ‘exculpatory’ evidence
    that is protected by both federal medical privacy laws and the
    official information privilege.”
    The trial court entered judgment denying John’s writ
    petition on February 29, 2016. John timely appealed.
    DISCUSSION
    A.      John Did Not Forfeit His Unfair Hearing Contentions
    USC contends John forfeited the argument he was denied a
    fair hearing because he did not properly raise a challenge to
    USC’s procedures in the trial court. Generally, a party cannot
    raise new issues or change the theory of a cause of action for the
    first time on appeal. (Johnson v. Greenelsh (2009) 
    47 Cal. 4th 598
    , 603; Franz v. Board of Medical Quality Assurance (1982)
    
    31 Cal. 3d 124
    , 143 [petitioner forfeited contention he was denied
    a fair hearing because of a panel member’s bias where he did not
    raise this issue before the agency or the trial court].) “‘“This rule
    is based on fairness—it would be unfair, both to the trial court
    and the opposing litigants, to permit a change of theory on
    26
    appeal . . . .”’” (American Indian Health & Services Corp. v. Kent
    (2018) 24 Cal.App.5th 772, 789; accord, C9 Ventures v. SVC-West,
    L.P. (2012) 
    202 Cal. App. 4th 1483
    , 1492 [“opposing party should
    not be required to defend for the first time on appeal against a
    new theory”].) Nevertheless, an appellate court has discretion to
    consider an issue for the first time on appeal “‘where the relevant
    facts are undisputed and could not have been altered by the
    presentation of additional evidence.’” (American Indian Health &
    Services Corp. v. Kent, at p. 789; accord, C9 Ventures v. SVC-
    West, L.P., at p. 1492.)
    Here, although John’s arguments did not cite to case law or
    the administrative record, the trial court proceeded to address
    John’s contentions, including whether he had a right to cross-
    examination and exculpatory evidence. Further, USC responded
    to John’s arguments. Moreover, the facts are not in dispute.
    Under these circumstances, John did not forfeit his fair hearing
    contentions on appeal. (See American Indian Health & Services
    Corp. v. 
    Kent, supra
    , 24 Cal.App.5th at p. 789.)
    B.    Standard of Review
    “The question presented by a petition for writ of
    administrative mandate is whether the agency or tribunal that
    issued the decision being challenged ‘proceeded without, or in
    excess of, jurisdiction; whether there was a fair trial; and
    whether there was any prejudicial abuse of discretion.’ (§ 1094.5,
    subd. (b).)” (Doe v. University of Southern 
    California, supra
    ,
    28 Cal.App.5th at p. 34; accord, Doe v. Regents of University of
    California (2018) 28 Cal.App.5th 44, 55 (UC Santa Barbara); Doe
    v. Regents of University of California (2016) 5 Cal.App.5th 1055,
    1072 (UC San Diego).) “Abuse of discretion is established if the
    respondent has not proceeded in the manner required by law, the
    27
    order or decision is not supported by the findings, or the findings
    are not supported by the evidence.” (§ 1094.5, subd. (b).)
    A university disciplinary proceeding concerning sexual
    misconduct does not involve a fundamental vested right; thus, we
    review the administrative decision applying the same standard of
    review applicable in the trial court. (Doe v. Claremont McKenna
    College (2018) 25 Cal.App.5th 1055, 1065 (Claremont McKenna);
    Doe v. University of Southern California (2016) 
    246 Cal. App. 4th 221
    , 239 (University of Southern California).) We review USC’s
    findings for substantial evidence in light of the whole record.
    (§ 1094.5, subd. (c) [“abuse of discretion is established if the court
    determines that the findings are not supported by substantial
    evidence in the light of the whole record”]; UC Santa 
    Barbara, supra
    , 28 Cal.App.5th at p. 56; UC San 
    Diego, supra
    ,
    5 Cal.App.5th at p. 1073.) However, we review the fairness of the
    administrative proceeding de novo. (UC Santa Barbara, at p. 56;
    Claremont McKenna, at p. 1065; UC San Diego, at p. 1073.)
    C.      John Was Denied a Fair Hearing
    1.    General principles of fairness
    In evaluating the fairness of a student disciplinary
    proceeding, courts have recognized the competing interests of the
    university, the complaining student, and the accused student.
    (See Claremont 
    McKenna, supra
    , 25 Cal.App.5th at p. 1066;
    UC San 
    Diego, supra
    , 5 Cal.App.5th at pp. 1077-1078.) “With
    respect to student discipline, ‘[t]he student’s interest is to avoid
    unfair or mistaken exclusion from the educational process, with
    all its unfortunate consequences. . . . Disciplinarians, although
    proceeding in utmost good faith, frequently act on the reports and
    advice of others; and the controlling facts and the nature of the
    conduct under challenge are often disputed. The risk of error is
    28
    not at all trivial, and it should be guarded against if that may be
    done without prohibitive cost or interference with the educational
    process.’” (University of Southern 
    California, supra
    ,
    246 Cal.App.4th at p. 240, quoting Goss v. Lopez (1975) 
    419 U.S. 565
    , 579-580 (Goss); accord, Claremont McKenna, at p. 1066;
    UC San Diego, at p. 1077.) But courts also acknowledge that
    “‘“[a] formalized hearing process would divert both resources and
    attention from a university’s main calling, that is education.”’”
    (Claremont McKenna, at p. 1066, quoting UC San Diego, at
    p. 1078.) Moreover, “[d]isciplinary proceedings involving sexual
    misconduct must also account for the well-being of the alleged
    victim, who often ‘live[s], work[s], and stud[ies] on a shared
    college campus’ with the alleged perpetrator.” (Claremont
    McKenna, at p. 1066, quoting University of Southern California,
    at p. 245.)
    “In disciplining college students, the fundamental
    principles of fairness require, at a minimum, ‘giving the accused
    students notice of the charges and an opportunity to be heard in
    their own defense.’” (UC Santa 
    Barbara, supra
    , 28 Cal.App.5th
    at p. 56; see 
    Goss, supra
    , 
    419 U.S. 565
    at pp. 579, 581 [public high
    school students facing suspension “must be given some kind of
    notice and afforded some kind of hearing” under due process
    clause].) “[A] student disciplinary proceeding at a university does
    not provide the same due process protections afforded to a
    defendant in a criminal trial.” (UC San 
    Diego, supra
    ,
    5 Cal.App.5th at p. 1078; accord, Goldberg v. Regents of
    University of 
    California, supra
    , 248 Cal.App.2d at p. 881
    (Goldberg) [“procedures for dismissing college students were not
    analogous to criminal proceedings”].) “However, ‘to comport with
    due process,’ the university’s procedures must ‘“be tailored, in
    light of the decision to be made, to ‘the capacities and
    29
    circumstances of those who are to be heard,’ [citation] . . . to
    insure that they are given a meaningful opportunity to present
    their case.”’” (UC San Diego, at p. 1078.)25
    2.    Where a university’s determination turns on witness
    credibility, the adjudicator must have an opportunity
    to assess personally the credibility of critical witnesses
    John contends he was denied a fair hearing because
    Dr. Allee did not reinterview critical witnesses who had been
    interviewed by Mirkovich, including Sarah, Emily, and Andrew,
    to enable Dr. Allee to assess their credibility.26 We agree.
    25     Many of the opinions addressing student disciplinary
    proceedings, including UC San Diego, UC Santa Barbara and
    Goldberg, concerned public universities subject to federal
    constitutional guarantees not applicable to private colleges. As
    the court in Claremont McKenna recognized, “Due process
    jurisprudence nevertheless may be ‘instructive’ in cases
    determining fair hearing standards for student disciplinary
    proceedings at private schools.” (Claremont 
    McKenna, supra
    ,
    25 Cal.App.5th at p. 1067, fn. 8; accord, University of Southern
    
    California, supra
    , 246 Cal.App.4th at p. 245.) However, it is not
    the case that “the fair hearing requirements under section 1094.5
    are in all ways equivalent to those under the federal and
    California Constitutions . . . .” (Claremont McKenna, at p. 1067,
    fn. 8.) As in Claremont McKenna, we need not address the
    differences between the requirements for disciplinary proceedings
    at public and private universities because we conclude the
    process here did not provide John a fair hearing under section
    1094.5.
    26     John also contends Dr. Allee “possibly” failed to interview
    J.D. Although Dr. Allee principally relied on J.D.’s written
    statement, she also interviewed him by telephone. A telephone
    interview would not provide an opportunity for Dr. Allee to assess
    J.D.’s demeanor during the interview, raising some of the same
    30
    As our colleagues in Division One concluded in Claremont
    McKenna, “where the accused student faces a severe penalty and
    the school’s determination turns on the complaining witness’s
    credibility . . . the complaining witness must be before the finder
    of fact either physically or through videoconference or like
    technology to enable the finder of fact to assess the complaining
    witness’s credibility in responding to its own questions or those
    proposed by the accused student.” (Claremont 
    McKenna, supra
    ,
    25 Cal.App.5th at p. 1070; accord, Doe v. Baum (6th Cir. 2018)
    
    903 F.3d 575
    , 581-582 (Baum) [“if a university is faced with
    competing narratives about potential misconduct,” some form of
    in-person questioning is required to enable “the fact-finder [to]
    observe the witness’s demeanor under that questioning”]; Doe v.
    University of Cincinnati (6th Cir. 2017) 
    872 F.3d 393
    , 401
    (Cincinnati) [“[T]he opportunity to question a witness and
    observe her demeanor while being questioned can be just as
    important to the trier of fact as it is to the accused.”].)27
    concerns for evaluating credibility. Because we conclude the
    failure to interview Sarah, Emily, and Andrew denied John a fair
    hearing, we do not reach whether Dr. Allee should have
    interviewed J.D. or other witnesses, including Vance and Carter,
    in person or by videoconference.
    27     On April 4, 2011 the United States Department of
    Education Office for Civil Rights (OCR) issued a “Dear Colleague”
    letter, in which it provided guidance on how universities should
    investigate and resolve complaints of student sexual misconduct.
    (UC San 
    Diego, supra
    , 5 Cal.App.5th at p. 1085; University of
    Southern 
    California, supra
    , 246 Cal.App.4th at p. 245.) On
    September 22, 2017 OCR withdrew its 2011 Dear Colleague
    letter and initiated a rulemaking process with public comment.
    (OCR, Dear Colleague Letter (Sept. 22, 2017) 41 Cal. 4th 1337
    , in invalidating a local court rule
    and trial scheduling order requiring parties in contested marital
    dissolution trials to rely on written declarations instead of live
    testimony, “Oral testimony of witnesses given in the presence of
    the trier of fact is valued for its probative worth on the issue of
    credibility, because such testimony affords the trier of fact an
    opportunity to observe the demeanor of witnesses.” (Id. at
    p. 1358.)
    In Claremont McKenna and Cincinnati, the courts
    addressed whether a student accused of sexual misconduct had a
    right to question the complainant, either directly or indirectly, to
    enable the trier of fact to assess her credibility. Both courts
    concluded the accused student had this right where credibility
    was central to the university’s determination. (Claremont
    
    McKenna, supra
    , 25 Cal.App.5th at p. 1070; 
    Cincinnati, supra
    ,
    872 F.3d at p. 401.)
    In Baum, the Sixth Circuit extended this analysis to
    questioning of witnesses other than the complainant where the
    201709.pdf> [as of Dec. 7, 2018].) On November 15, 2018 OCR
    proposed regulations modifying the minimum standards for a
    Title IX investigation into alleged sexual misconduct. (OCR,
    Title IX of the Education Amendments of 1972 Notice of Proposed
    Rulemaking  [as of Dec. 7, 2018] (Proposed Regulations).) Under
    the Proposed Regulations, an investigator could not serve as the
    adjudicator, universities would be required to hold a live hearing,
    and the complainant and accused student would have an
    opportunity for the student’s “advisor” to cross-examine the
    complainant and all witnesses in person or through a
    technological substitute. (Proposed Regulations, § 106.45, subd.
    (b)(3), (4).)
    32
    fact-finder found the complainant and witnesses who
    corroborated the complainant’s version of events more credible
    than the accused student and witnesses who corroborated his
    side of the story. 
    (Baum, supra
    , 903 F.3d at pp. 582-583.)
    The same considerations underlying the holdings in
    Claremont McKenna, Baum, and Cincinnati apply here. Where a
    student faces a potentially severe sanction from a student
    disciplinary decision and the university’s determination depends
    on witness credibility, the adjudicator must have the ability to
    observe the demeanor of those witnesses in deciding which
    witnesses are more credible. (Claremont 
    McKenna, supra
    ,
    25 Cal.App.5th at p. 1070; 
    Baum, supra
    , 903 F.3d at p. 581;
    
    Cincinnati, supra
    , 872 F.3d at p. 402.) This will typically be the
    case in disciplinary proceedings involving sexual misconduct
    where there is no corroborating physical evidence to assist the
    adjudicator in resolving conflicting accounts.28
    In Claremont McKenna, the parties were the only witnesses
    to the incident, and without the complaining witness’s statement,
    28    We recognize the added burden on the university and the
    witnesses that would result from requiring an in-person or
    videoconference interview. However, given the available
    videoconference technologies like Skype, the additional burden is
    not significant and must be weighed against the importance of
    the determination, especially where the accused student faces a
    severe sanction. We do not suggest that all witnesses must be
    interviewed in this manner. However, where the witness
    accounts are in conflict and the adjudicator must determine
    which account to believe, or the adjudicator otherwise questions
    the veracity of a witness’s account, it is essential for the
    adjudicator to have an opportunity to observe the demeanor of
    those witnesses where the determination turns on their
    credibility.
    33
    there was no corroborating evidence she did not consent to have
    sex with the accused student. (Claremont 
    McKenna, supra
    ,
    25 Cal.App.5th at p. 1070.) On these facts, Division One reversed
    the trial court’s denial of the accused student’s petition for a writ
    of administrative mandate, concluding fairness required all three
    members of the adjudicatory committee hear the complaining
    witness’s account of the incident before they decided to believe
    her account over that of the accused student. (Id. at pp. 1072-
    1073.)
    In Cincinnati, the Sixth Circuit similarly held the accused
    student showed a likelihood of success on the merits that he was
    denied a fair hearing where the review panel relied on the
    investigator’s written report of the complaining witness’s
    statement to find her account, that she had not consented to sex,
    more believable than that of the accused student, who asserted
    the encounter was consensual. (
    Cincinnati, supra
    , 872 F.3d at
    pp. 402, 407.) The court observed, “Given the parties’ competing
    claims, and the lack of corroborative evidence to support or refute
    [the complainant’s] allegations, the present case left the [review]
    panel with ‘a choice between believing an accuser and an
    accused.’ [Citation.] Yet, the panel resolved this ‘problem of
    credibility’ without assessing [the complainant’s] credibility.
    [Citation.] In fact, it decided [the accused student’s] fate without
    seeing or hearing from [the complainant] at all. That is
    disturbing and, in this case, a denial of due process.” (Id. at
    p. 402.) In Baum, the complainant and accused student provided
    different accounts as to whether the complainant was too
    intoxicated the evening of the incident to have the capacity to
    consent to sex. 
    (Baum, supra
    , 903 F.3d at pp. 578-579.) The
    investigator interviewed 23 witnesses: the female witnesses
    corroborated the complainant’s story; the male witnesses
    34
    corroborated the accused student’s story. (Id. at p. 579.) The
    Sixth Circuit concluded the trial court erred in dismissing the
    accused student’s due process claim, finding there was a
    “significant risk” the university denied him due process by
    relying on witness statements instead of live testimony where the
    university’s determination turned on the credibility of the
    complainant, the accused student, and the witnesses. (Id. at
    pp. 581-582, 585.)
    Under USC’s sexual misconduct review procedures, John
    was not entitled to a hearing. Instead, the Title IX investigator
    served as both the investigator and adjudicator.29 Although Jane
    reported she blacked out after the paint party and spoke with
    Emily, Sarah, and Andrew to reconstruct what happened
    between 2:00 a.m. and 4:00 a.m. when the incident occurred,
    Dr. Allee did not interview these critical witnesses, and instead
    relied on Mirkovich’s summaries.
    29     Although the Title IX investigator held dual roles as the
    investigator and adjudicator, “the combination of investigative
    and adjudicative functions does not, without more, constitute a
    due process violation . . . .” (Withrow v. Larkin (1974) 
    421 U.S. 35
    , 58; accord, Griggs v. Board of Trustees (1964) 
    61 Cal. 2d 93
    , 98
    [“the combination of adjudicating functions with prosecuting or
    investigating functions will ordinarily not constitute a denial of
    due process”]; Southern Cal. Underground Contractors, Inc. v.
    City of San Diego (2003) 
    108 Cal. App. 4th 533
    , 548-549 [rejecting
    contention that hearing was not before impartial tribunal
    because city was both prosecutor and adjudicator]; Hongsathavij
    v. Queen of Angels etc. Medical Center (1998) 
    62 Cal. App. 4th 1123
    , 1142 [“[o]verlapping investigatory, prosecutorial and
    adjudicatory functions do not necessarily deny a fair hearing and
    are common before most administrative boards”].)
    35
    Andrew and Sarah gave conflicting accounts as to the
    condition of the apartment and whether there was blood in the
    apartment on the morning of the incident. Andrew described
    Jane’s apartment as “disheveled,” with “puddles of blood on the
    air mattress, which were about 6 inches in size,” as well as “a lot
    of blood” on the sheets and blood on the carpet. Yet Sarah stated
    when she returned to Jane’s apartment on the morning of
    April 13, it “seemed cleaner” and looked “really empty.” She was
    in the apartment for five or 10 minutes, and did not recall seeing
    blood or paint on the floor or mattress. Dr. Allee found Sarah’s
    statement about the apartment and the absence of blood were not
    “sufficiently reliable,” although she never interviewed Sarah to
    inquire about any inconsistencies in her statement or to assess
    her demeanor.30
    Further, it is undisputed red paint was used at the party.
    Sarah told Mirkovich she had red paint behind her ears and on
    her body for days after the party and the red paint looked like
    “bruises and blood.” Jane similarly texted J.D. to say she looked
    like a “battered convict” because “the paint looks like bruises.”
    Jane recalled she put on a maxi dress before going to the rape
    treatment center “to cover the blood and paint.” Thus,
    determination of whether there was blood or red paint (or
    neither) in the apartment after the incident was important to the
    university’s determination. Indeed, in Dr. Allee’s report she
    noted “it is possible that some of the red substance on the sheets,
    air mattress, and carpet was paint,” but pointed out that Jane
    and Andrew “specifically described blood.”
    30    Evaluation of Andrew’s credibility would also have been
    important in light of the fact he was dating Jane at the time of
    the incident and disposed of the asserted bloody sheets.
    36
    Emily’s statements were also central because Jane reported
    to Dr. Allee that she blacked out, and “[m]ost of the memories
    come from Emily.”
    In addition, as in Claremont McKenna, Cincinnati, and
    Baum, there was no physical evidence showing there was blood
    on Jane’s body or in the apartment after the incident. It is
    undisputed that Andrew, at Jane’s direction, threw out the sheets
    and deflated the air mattress. Andrew acknowledged the color
    photographs provided by Jane did not show any blood in the
    apartment. This was contrary to Jane’s statement that the blood
    soaked through the mattress pad, and there were stains on the
    living room floor that were reflected in the photographs. Jane’s
    clothing from the evening and the SART rape treatment kit
    might have revealed whether there was blood or red paint on
    Jane, but neither was obtained by Dr. Allee as part of her
    investigation. Thus, Dr. Allee was left to rely on the conflicting
    statements of witnesses as to whether the alleged nonconsensual
    anal sex caused Jane to bleed.31
    There is no question that expulsion from the university was
    a severe sanction. Given the conflicting witness statements and
    lack of corroborating evidence, a fair hearing required Dr. Allee
    31    Although Dr. Allee could have based her finding of a lack of
    consent solely on Jane’s level of intoxication, both she and the
    Appeals Panel pointed to the evidence of blood on Jane’s body and
    in the apartment in reaching the conclusion Jane did not consent
    to anal sex. In addition, the evidence of a forced sexual
    encounter, resulting in bleeding, could have impacted the
    imposition of the severe sanction of expulsion. The Appeals
    Panel stated, “[T]he evidence indicates that [John] continued
    performing anal intercourse with [Jane] despite that it was
    causing her physical injury, including a significant amount of
    bleeding.”
    37
    as the adjudicator to assess personally the credibility of critical
    witnesses, including Sarah, Emily, and Andrew, in person or by
    videoconference or other technological means, which would have
    provided Dr. Allee an opportunity to observe the witnesses’
    demeanor during the interview.32
    3.      If USC conducts a new disciplinary proceeding, it
    should allow John to submit questions for the
    adjudicator to ask Jane
    We have concluded John was deprived of a fair hearing
    because Dr. Allee as the adjudicator had no opportunity to assess
    personally the credibility of the critical witnesses—Sarah, Emily,
    and Andrew. In addition, as part of the adjudicator’s assessment
    of credibility, an accused student must have the opportunity
    indirectly to question the complainant.33 (UC Santa Barbara,
    32     At many universities, a hearing is provided at which an
    adjudicative panel considers the testimony of the parties and
    other witnesses. (See, e.g., UC Santa 
    Barbara, supra
    ,
    28 Cal.App.5th at pp. 49-52, 57 [two-member committee hears
    testimony from parties and other witnesses at hearing];
    Claremont 
    McKenna, supra
    , 25 Cal.App.5th at pp. 1062-1064
    [three-member committee comprised of investigator and two
    faculty or staff members holds hearing at which parties may
    make oral statements]; UC San 
    Diego, supra
    , 5 Cal.App.5th at
    pp. 1080-1081 [three-member panel holds hearing with testimony
    from parties and witnesses; parties may propose written
    questions to ask parties and witnesses].) Where the
    determination of sexual misconduct by the adjudicators turns on
    witness credibility, the hearing panel likewise would need to
    ensure the panel has an opportunity to assess the credibility of
    critical witnesses in person or by videoconference.
    33    Under USC’s procedures, the accused student does not
    have “the right to confront accusers.” (Guidebook, § 
    17.03.) 38 supra
    , 28 Cal.App.5th at p. 60 [accused student was deprived of
    right to cross-examine complainant and to present his defense
    where committee allowed her to refuse to answer questions about
    the side effects of an antidepressant medication she was taking at
    the time of the alleged sexual assault on privacy grounds];
    Claremont 
    McKenna, supra
    , 25 Cal.App.5th at p. 1057 [college
    should have required complainant to appear at hearing in person
    or by videoconference to allow “the Committee[] [to ask] her
    appropriate questions proposed by John or the Committee itself”];
    
    Cincinnati, supra
    , 872 F.3d at p. 406 [accused student had a right
    to question the complainant through the review committee where
    the committee had to decide whether to believe the complainant
    or accused student].)34
    USC’s procedures do not provide an accused student the
    right to submit a list of questions to ask the complainant, nor was
    John given that opportunity here.35 If USC proceeds with a new
    Thus, consistent with California law, John did not have a right
    directly to question Jane or the other witnesses. (See UC San
    
    Diego, supra
    , 5 Cal.App.5th at p. 1084 [“There is no requirement
    under California law that, in an administrative hearing, an
    accused is entitled to cross-examine witnesses.”]; University of
    Southern 
    California, supra
    , 246 Cal.App.4th at p. 245
    [“‘[A]lthough we recognize the value of cross-examination as a
    means of uncovering the truth [citation], we reject the notion that
    as a matter of law every administrative appeal . . . must afford
    the [accused] an opportunity to confront and cross-examine
    witnesses.’”].)
    34     On appeal, John does not address the right to submit a list
    of questions, but in the trial court he contended he was deprived
    of the right to cross-examine Jane and the other witnesses.
    35   Under USC’s procedures, the complainant and accused
    students have certain procedural rights, including: “A. Written
    39
    disciplinary proceeding, it should afford John an opportunity to
    submit a list of questions to ask Jane.36
    4.   The investigator did not conduct a fair and thorough
    investigation, as required by USC’s procedures
    “Where student discipline is at issue, the university must
    comply with its own policies and procedures.” (University of
    Southern 
    California, supra
    , 246 Cal.App.4th at p. 239; accord,
    UC San 
    Diego, supra
    , 5 Cal.App.5th at p. 1073.) John contends
    USC violated its own procedures by failing to conduct “[a] fair,
    thorough, neutral and impartial investigation of the incident.”
    notice of the incident report that specifies the nature of the
    alleged violation and the basis for the charge including the date
    or period of time and location regarding the alleged incident”;
    “D. A fair, thorough, neutral and impartial investigation of the
    incident”; and “E. At the start of the investigation, a summary of
    rights, investigation procedures and avenue of appeal.”
    (Guidebook, § 17.03.A, D, E.) In addition, “[b]oth parties have the
    right to inspect documents and/or relevant information gathered
    as part of the investigation (though medical information may be
    kept confidential).” (Id., § 17.03.F.) The list of procedural rights
    does not include a right to submit a list of questions for the
    investigator to ask the complainant or other witnesses.
    36     Although it would be a better practice to allow the
    complainant and accused student to submit a list of questions to
    ask witnesses for whom the fact-finder needs to make a
    credibility determination, we do not reach whether John’s
    inability indirectly to ask questions of Sarah, Emily, and Andrew
    violated his right to a fair hearing. (See 
    Baum, supra
    , 903 F.3d
    at p. 582 [accused student’s inability to cross-examine
    complainant or her witnesses posed “a significant risk that the
    university erroneously deprived [accused student] of his protected
    interests”].)
    40
    (Guidebook, § 17.03.D.) Among other arguments, John contends
    USC failed to obtain Jane’s clothes from the night of the party or
    her medical records from the rape treatment center to help
    resolve the conflict over whether substances on Jane’s body and
    in her apartment were red paint or blood.37 We agree USC
    violated its own procedures by failing to request that Jane provide
    her clothes or consent to release her medical records.
    Jane told Dr. Allee that Andrew threw away the sheets at
    her request, but Jane had collected the clothes she wore the night
    of the party as evidence. Yet Dr. Allee did not request Jane
    provide her clothes as part of the investigation. Rather, she only
    informed Jane that John had requested Jane’s clothes (and the
    condom Jane found in the apartment) because John wanted “to
    do [independent] testing on his own in order to better respond to
    the allegations.” Further, by emphasizing “the request [was]
    coming from John Doe rather than from [Dr. Allee] or USC,” this
    made it easier for Jane to ignore the request, hampering John’s
    ability to defend himself. (See UC Santa 
    Barbara, supra
    ,
    37     John contends Dr. Allee withheld Jane’s medical records,
    pointing to a May 1, 2014 e-mail from Dr. Allee to Jane stating
    she had obtained “UCLA records.” However, there is no evidence
    in the administrative record that USC obtained Jane’s medical
    records from the rape treatment center. Instead, in her summary
    administrative review Dr. Allee only references the “verification
    of services letter” from the rape treatment center. John also
    contends Dr. Allee “engaged in willful ignorance by apparently
    failing to observe the ‘bloodied’ carpet in [Jane’s] apartment first-
    hand.” But when Dr. Allee asked Jane for access to the
    apartment to take photographs on May 1, 2014, it was already 18
    days after the April 13, 2014 incident. Dr. Allee could reasonably
    have concluded the photographs Jane e-mailed her were
    sufficient, especially given that Jane was no longer at USC or in
    California.
    41
    28 Cal.App.5th at p. 60 [by allowing complainant to decline to
    answer accused student’s questions because it was her “‘private
    medical information,’” the committee “impeded his ability to
    present relevant evidence in support of his defense”].)
    In addition, John requested the medical report and other
    evidence from the rape treatment center, but Dr. Allee never
    asked Jane if she would consent to release of this information. In
    Jane’s e-mail to Dr. Allee in response to Carter’s witness
    statement, Jane stated, “[S]ince forensic evidence was not
    requested for the investigation, it was not provided, but if we
    were not thorough enough please let me know, as I would be
    more than willing to provide further clarification.” Jane
    appeared willing to provide additional “forensic evidence,” but
    Dr. Allee never followed up with Jane to obtain her consent to
    release her medical records.
    We recognize Jane’s medical records are protected by
    federal privacy laws, and USC would have to obtain Jane’s
    consent before it could release the records to John. Under the
    Health Insurance Portability and Accountability Act of 1996
    (42 U.S.C. § 1320d et seq.) privacy rules, a healthcare provider
    (such as the rape treatment center) cannot disclose protected
    health information without the consent of the patient, unless the
    provider receives an order, warrant, subpoena, or summons
    signed by a judicial officer; a grand jury subpoena; or an
    administrative subpoena, summons, or investigative demand
    from law enforcement. (45 C.F.R. § 164.512(e)(1)(i) & (f)(1)(ii).)
    Because none of the exceptions applies here, USC would need
    Jane’s written authorization to obtain her medical records from
    42
    the rape treatment center. (45 C.F.R. § 164.508.)38 But this does
    not mean USC was excused from requesting that Jane provide
    consent to the release of her medical records, which she may well
    have given in this case (subject to confidentiality protections).39
    DISPOSITION
    The judgment is reversed and the matter remanded to the
    trial court with directions to grant John’s writ of administrative
    mandamus. John is awarded his costs on appeal.
    FEUER, J.
    WE CONCUR:
    PERLUSS, P. J.
    ZELON, J.
    38    In addition, even if USC were able to obtain Jane’s medical
    records, they were subject to the Family Educational Rights and
    Privacy Act, which generally prohibits the disclosure of
    “personally identifiable information” in student education records
    without the student’s written consent. (20 U.S.C. § 1232g(b);
    34 C.F.R. § 99.30.)
    39    Because we conclude John was denied a fair hearing, we do
    not reach John’s other contentions, including whether substantial
    evidence supported USC’s decision to expel John for violations of
    the student conduct code and other grounds John asserts to
    support his claim he was denied a fair hearing.
    43