Doe v. The Regents of the U. of Cal. CA1/2 ( 2021 )

Filed 9/30/21 Doe v. The Regents of the U. of Cal. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
JOHN DOE,
Plaintiff and Appellant,
A159004
v.
THE REGENTS OF THE (Alameda County
UNIVERSITY OF CALIFORNIA, Super. Ct. No. RG19007666)
Defendant and Respondent.
John Doe was a student at University of California, Davis (UC Davis),
when fellow student Jane Roe reported that he engaged in nonconsensual
sexual intercourse with her in violation of University of California policy.
John agreed they had sex but said Jane consented. Following an
investigation, UC Davis found that, on the night John and Jane had sex,
Jane was incapacitated due to alcohol such that she was unable to consent
and that, given her condition, a reasonable person should have known she
was unable to consent. UC Davis concluded John violated explicit UC policy,
and he was suspended from all UC campuses for two years. John petitioned
the superior court for a writ of administrative mandate to set aside the
suspension, and the court denied the petition.
In this appeal, John contends he was denied a fair process in UC
Davis’s investigation and adjudication of Jane’s allegations. He argues (1) he
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was denied a live hearing and an opportunity to cross-examine witnesses
before a fact finder who was not also the investigator, (2) the investigator in
this case failed to conduct a fair, thorough, and impartial investigation, and
(3) the findings were not supported by substantial evidence.
In Doe v. Allee (2019) 30 Cal.App.5th 1036, 1069 (Allee), the court held
in university disciplinary proceedings involving allegations of sexual
misconduct, when the sanction is severe and credibility is central to the
adjudication, the university must provide cross-examination at a live hearing
before a neutral adjudicator who was not also the investigator as a matter of
fair process. We conclude that, in this case, credibility was not central
because John’s own account of the incident provided substantial evidence of
the policy violation; therefore, the procedures mandated in Allee were not
required. The administrative record shows the investigation was thorough,
there is no evidence of investigator bias, and John was provided many
opportunities to state his version of events and to review and respond to the
evidence. On this record, we cannot say John was denied a fair process.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant UC Davis Policies and Procedures
1. Investigating and Deciding Complaints
The procedures for investigating and adjudicating claims at the time
Jane filed her complaint and John was disciplined were the UC Policies
Applying to Campus Activities, Organizations and Students–Appendix E:
Sexual Violence and Sexual Harassment Student Adjudication Framework
issued January 1, 2016 (Appendix E) and the UC Davis Adjudication of
Student Cases of Sexual Violence and Sexual Harassment Policy dated April
21, 2017 (together, the “Procedures”). The Procedures are no longer in effect,
2
and the process for adjudicating sexual misconduct claims in the UC system
is no longer governed by the April 2017 version of Appendix E.1
Each University of California campus has a Title IX Office responsible
for receiving and responding to reports of sexual violence and sexual
harassment. When a Title IX Officer receives a report of alleged sexual
violence or sexual harassment warranting investigation, the officer
designates an investigator “to conduct a fair, thorough, and impartial
investigation.” The person who made the complaint and the person accused
of misconduct are given written notice of the charges and a summary of the
investigative and adjudicative process.
When the investigator completes the investigation, she prepares a
written report, which includes findings of fact and a recommendation
regarding whether there were any policy violations. The parties are sent
written notice of the findings and recommendations, and an explanation of
the decision-making process and the subsequent right to file an
administrative appeal.
It is the Office of Student Support and Judicial Affairs (OSSJA) that
decides whether any policy violations occurred and determines the
appropriate discipline. Either party may schedule a meeting with the OSSJA
or submit a written statement to address the findings and recommendations
and potential discipline. The OSSJA reviews the investigation report and the
parties’ comments and decides whether to accept the recommendations of the
1 Even though both parties note that the Procedures are no longer in
effect, for simplicity and clarity we refer to them in the present tense.
(Respondent UC Regents reports its adjudication policies have most recently
been modified following the issuance of new Title IX regulations by the
Department of Education. John states the Procedures were rescinded in
March 2019 after Allee, supra, 30 Cal.App.5th 1036, was decided.)
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investigator. Written notice of the OSSJA decision is sent to the parties; the
notice includes an appeal form and description of the administrative appeal
procedure.2
Administrative appeals are decided by an “appeal hearing officer.” The
appeal procedures require notice and the exchange of witnesses, witness
summaries, and documents prior to the hearing.3 After the appeal hearing,
the appeal hearing officer renders her decision and issues a written report. If
the appeal hearing officer upholds the findings and disciplinary sanctions,
there is no right to further administrative appeal. If the OSSJA’s decision is
modified or overturned, the parties may appeal to the Chancellor.
2. Policies Governing Student Conduct
The UC Policy on Sexual Violence and Sexual Harassment issued
January 1, 2016, (UC Policy) defines and prohibits certain sexual misconduct.
Pertinent here, it prohibits “[s]exual [a]ssault – [p]enetration,” which it
defines as “Without the consent of the Complainant, penetration, no matter
how slight, of the vagina, anus, or mouth by a penis; or the vagina or anus by
any body part or object.”
The UC Policy defines “consent” as “affirmative, conscious, voluntary,
and revocable” and provides, “It is the responsibility of each person to ensure
2 The Procedures allow either party to contest the OSSJA’s decision by
submitting an appeal on one or more of the following four grounds:
(1) procedural error that materially affected the outcome, (2) “[t]he decision
was unreasonable based on the evidence,” (3) new, material information, or
(4) disproportionate discipline.
3 For example, the parties are required to submit to the appeal hearing
officer “the information they intend to present at the appeal, including all
documents to be presented, the names of all witnesses, and a brief summary
of all witnesses’ expected testimony” at least five days before the hearing.
The information is then provided to the parties.
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they have the affirmative consent of the other to engage in the sexual
activity.” The definition further provides, “The Respondent’s belief that the
Complainant consented shall not provide a valid excuse where” either “[t]he
Respondent did not take reasonable steps, in the circumstances known to the
Respondent at the time, to ascertain whether the Complainant affirmatively
consented” or “[t]he Respondent knew or a reasonable person should have
known that the Complainant was unable to consent because the Complainant
was incapacitated in that the Complainant was” “asleep or unconscious” or
“due to the influence of drugs, alcohol, or medication, unable to understand
the fact, nature, or extent of the sexual activity.”
The UC Davis Policy on Student Conduct and Discipline (Code of
Conduct) prohibits “physical abuse,” which includes “physical assault; threats
of violence; or other conduct that threatens the health or safety of any
person.”
As we will discuss, whether Jane was able to consent within the
meaning of the UC Policy is central to the outcome of this appeal.
B. Incident and Complaint
In December 2017, UC Davis student Jane and her roommate Witness
A shared a room on the first floor of a residence hall; John lived on another
floor of the same building.4 It is not disputed that, on the evening of
Saturday, December 2, 2017, a group of students including John were
hanging out in Jane’s dorm room, Jane drank a good deal of alcohol and
ended up vomiting and falling asleep in a shared residence hall bathroom,
and later that night, John and Jane had sex.
4 The administrative record refers to the studentwitnesses as Witness
A, B, and so on. The parties refer to John Doe and Jane Roe with
pseudonyms to protect their privacy, and we do the same.
5
On January 26, 2018, Jane reported to the Title IX Office that John
had engaged in nonconsensual sexual intercourse with her.
C. Investigation
Wendy Lilliedoll, of the Office of the Provost and Executive Vice
Chancellor, was assigned to investigate the matter. On February 6, 2018,
Jane and John were each sent notice of the investigation. The three-page
notice to John identified Jane as the complainant, stated the allegation that
John engaged in sexual intercourse without Jane’s consent in her dorm room
on or about December 2, 2017, and referred to the university policies alleged
to have been violated. These were the UC Policy prohibiting “Sexual Assault
– Penetration” and the Code of Conduct prohibition of physical assault. The
notice explained the investigation process and provided websites where the
UC Policy, the Code of Conduct, and the Procedures could be found.
1. Witness Interviews
Over the course of March and April 2018, Lilliedoll met in person with
Jane, John, and five additional witnesses—students she referred to as
Witnesses A, B, C, D, and E.5
a. Jane
Jane told Lilliedoll that on the night of December 2, 2017, she was
hanging out with some friends, and John, whom she did not know well, was
there, too. Jane “definitely consumed far too much” alcohol that night,
probably eight or nine shots or so.
5 Jane and Witness A shared a room on the first floor near the front
door of their residence hall. John and Witness E were roommates and lived
on the second floor of the same residence hall. Witness B and Witness D
were roommates and also lived on the second floor. Witness C lived in a
different dorm and was good friends with John.
6
Jane ended up vomiting in the gender-neutral bathroom in the
residence hall. John went with her to the bathroom. She told him she was
fine and he did not need to be there, but John insisted on staying with her
and told her she needed to take off her shirt. Jane kept saying “no” and
pushing him away.
When Jane and John returned from the bathroom to her dorm room,
most people had left; only her roommate, Witness A, and one other friend
were still there.6 Jane told Lilliedoll she was “really out of it” at that point
and she did not remember what John said, but Witness A later told her that
John said he was going to do his homework in her room and make sure she
was okay. John went to get his backpack. Jane was in bed trying to sleep
when he returned.
According to Jane, she did not remember exactly what happened that
night. She thought John sat in a rolling chair and worked while Witness A
was in the room but as soon as she left, John got into bed with her. Jane was
“half asleep” and “not with it.” She told Lilliedoll, “He, I guess, just took
advantage of me. I was not in any state to give consent, which was really
obvious.” Lilliedoll asked about what specific acts occurred, and Jane
responded, “He had sex with me. There was a point where I realized what
was happening and said, ‘Oh shoot, I don’t want to be doing this.’ I think
that’s when I got up and put on my pajamas. I think my thought process was
if I got ready for bed he would leave.” She told John she wanted to go to
sleep; he tried taking off her pajamas. Jane said, “He didn’t really listen
when I said I wanted to sleep.” She thinks he managed to take off her
pajamas and to continue to have sex with her. Asked whether there was any
From the accounts of John and Witness D, the other person in the
6
room was Witness D.
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other sexual activity, Jane did not remember any oral sex or genital touching.
She remembered falling asleep multiple times; John kept waking her up.
Asked about contraception, Jane recalled that John had condoms. At the
time of her interview with Lilliedoll (March 15, 2018), Jane told Lilliedoll
that she should have been more direct in telling John to leave, but she also
thought that she was not coherent enough at the time to do that.7
b. John
Lilliedoll interviewed John in April 2018 and gave him a summary of
the interview a few days later, inviting him to identify any inaccuracies or
clarifications. John provided his comments, which Lilliedoll then
incorporated into an interview summary.
John reported that Jane and Witness A invited him and his friend,
Witness C, to a party in their room, and everyone started drinking. John
thought Jane had about six drinks.
John said he did not have too much to drink that night, and he was
mostly making sure people who did have too much were okay. Witness A
asked him to check on Jane in the gender-neutral bathroom. He found her in
the disabled stall, in his words, “purging,” sometimes slouched over with her
head in the toilet bowl. John’s friend, Witness C, was in another stall, and
John went to see if he needed anything. He brought water to both Jane and
Witness C. Witness C said he was done for the night, and John helped him
up the stairs to John’s room and put him in a spare bunk.
John went back downstairs and found Jane still in the bathroom. She
was lying face up on the bathroom floor with her legs straddling the toilet,
7Jane also told Lilliedoll that she just wanted to forget about what
happened at first, but, later, she was motivated to file a complaint when she
heard about an incident involving John and other female classmates that
occurred during the winter quarter.
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and John was concerned she might be choking. He quickly lifted her up, put
her head over the toilet, and patted her back. He noticed she was really cold
to the touch. She said her back and chest hurt; he asked if she wanted him to
unhook her bra, and she said yes, so he unhooked it over her shirt. John told
Lilliedoll he got the idea because at another party where he was not drinking
someone asked him if he could help her unhook her bra. He offered Jane
more water, and she said she could not drink more water and she just needed
to throw up.
At one point, John left the bathroom. When he returned, he found Jane
and Witness A asleep on the floor. Jane had her legs straddling the toilet,
and Witness A was sitting behind Jane. It was getting late, so he suggested
that Witness A end the party in her room. He asked Jane if he could help
her, and she told him to leave her by the toilet. He put her in a position
where she was hunched over the toilet.
John thought he gave Jane at least half an hour to finish up in the
bathroom. During this time, she fell asleep again. Eventually, he asked Jane
if she was done, and she said she thought she was, so he helped her to her
feet. She pushed him away and said she could walk by herself, but she
slipped, and John caught her and helped her back to her room.
When John and Jane returned to her room, Witness D was there. John
told him he could go back to his room because Jane had to go to sleep.
Witness A (Jane’s roommate) told John he could leave, but he asked if he
could do homework in their room so he could watch Jane to make sure she
fell asleep safely. John and Witness A put Jane to bed with a wastebasket
nearby. Jane drooled into the basket and made a lot of gurgling noises, but
John did not recall her vomiting again. He thought her stomach was empty
because she was refusing to drink water.
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John ran upstairs to get his backpack. When he returned to Jane’s
room, Witness A was asleep but Jane was having a hard time sleeping. Jane
kept saying, “I’m cold” in a “shivery, fluttery voice,” and John tucked her in
as well as he could. He put on headphones and started working on an
assignment.
At some point, Witness A asked if he would stay around while she went
out. He thought it was possible Witness A couldn’t sleep because Jane was
groaning.
John took his headphones off and heard loud groaning. Jane
complained that she was too cold to fall asleep. John told Lilliedoll he was
really warm from all the walking he had been doing, so he asked Jane if she
wanted him to get under the covers and keep the bed warm, and she said
yes.8 He took off his jeans and button-up shirt and got in bed with Jane,
wearing a t-shirt and basketball shorts. Jane started coming closer to him
and spooning him, and he felt “super uncomfortable” and was “hugging the
wall.” Jane was not wearing pants, and he guessed she took them off when
he went upstairs. He started to fall asleep because the bed was warm; he
thought it was around 11:30 p.m.
John told Lilliedoll he woke up at 2:30 a.m. with Jane’s mouth on his
mouth and her legs tangled in his. He asked what she was doing, and she
asked if he had a condom. Jane said she wanted to “do it.” He asked if she
was kidding, and she said she wasn’t. He asked if she was sober, and she
said she was. John got out of bed and found a strip of about four condoms in
his backpack.
8John told Lilliedoll he felt conflicted about what he was doing. He felt
weird making the offer, but he would have felt bad if Jane stayed up all night
shivering.
10
According to John, he went back to bed and asked Jane if she was sure
about going through with this, and she said yes. She reached for his crotch.
He asked again if she was sober, and Jane said he could stop asking those
questions about consent. The sexual encounter began with John performing
oral sex for several minutes. He told Lilliedoll that Jane reacted by saying,
“ooo,” and she seemed surprised and seemed to enjoy what he was doing.
John reported he then asked for permission to continue, Jane gave him
permission, and they began to have sex. They started in the missionary
position and changed positions twice. At one point, Witness A walked in the
room to get something, and Jane said, “Oh shit,” and pulled the sheets over
herself. Witness A left the room, and John did not know if she saw what was
happening.
John asked Jane if she was willing to perform oral sex. She said, “sure,
give me a minute.” She turned on the lights and started cleaning the room—
she pushed clothes to the side of the bed, moved a wastebasket, and took her
bra and perhaps her pants to the closet. She put on a t-shirt. She may have
put on underwear or pajama bottoms. She got back into bed and made eye
contact with John while she performed oral sex. This lasted a long time;
John eventually asked if they should stop and go to bed.
John woke around 5:15 a.m. and was starting to get dressed when
Witness A entered the room. He may have left a condom on the floor.
Later that morning (December 3), John talked to Witness B about what
happened with Jane. He asked Witness B what Witness A told him. Witness
B said he thought they (John and Jane) hooked up, and John confirmed this.
John wanted to check up on Jane, and Witness B gave him her phone
number.
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John texted Jane, and she did not respond until the next day. She
indicated she did not know what happened, and John texted, “Do you
remember what happened?” He told Lilliedoll he wrote this because he
thought Jane was “flirting.” Jane responded that she thought she had too
much to drink to remember.
At some point, John learned from Witness B that Jane had a boyfriend
and that really “set [John] off” because he thought having sex with a girl who
has a boyfriend is disrespectful to the boyfriend. John described to Lilliedoll
his text message exchanges with Jane, since he had deleted the text message
string. He texted Jane that he knew she had a boyfriend, and she responded
that she loved her boyfriend and would never have sex with John of her own
“free will.” John texted that was not what she said at the time and he “made
sure.” John thought Jane was being “super irrational.”
Before deleting the messages, John showed some of them to Witness B
and asked what he thought Jane meant. According to John, Witness B told
him it sounded like he did nothing wrong. John told Witness B he got in bed
with Jane to help her stay warm. He wanted to take a quick nap and make
sure she fell asleep and leave. He said he took his pants off because he
couldn’t sleep with three layers of clothing and also his pants were probably
still wet from the drizzle because it was raining that day.
Regarding whether Jane was drunk when they had sex, John thought if
she stopped drinking at 10:00 p.m., vomited until 11:30 p.m., and kept
drinking water until 2:30 a.m., then she was not drunk. He thought she
could not have been awake and had all that energy if she were drunk. He
was confident he had “total consent.”
John told Lilliedoll that when Jane was in the bathroom, she was
slurring and spoke “hazily.” But later, when they were in bed and she asked
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if he had a condom, she did not slur. He said Jane sounded more like she was
just waking up. He kept asking her if she was sober, and she started getting
annoyed. After Witness A walked in on them having sex and then left the
room, John and Jane talked about an activity Jane had the next morning.
John said, “she seemed to have gotten back to herself” by that time.
c. Witness A
Jane’s roommate, Witness A, confirmed that she and Jane had a party
in their room on the night in question, and John and Witness C were there.
A few hours into the party, Jane went to the bathroom. Witness A went to
check on Jane, and it appeared John was being nice and helping her out.
When Jane returned to her room from the bathroom, she was stumbling,
unable to talk, and had her face in a trash can.
John put Jane in bed. Jane threw up in a trash can. John went to get
his homework and said he would stay with her to make sure she was okay.
Jane continued to vomit, which made Witness A feel disgusted and
nauseated. Around 1:00 or 2:00 a.m., Witness A left their room to hang out in
the hall with Witness B. At one point, she briefly went in the room to get
something, and she saw John in bed with Jane; they appeared to be sleeping.
At 4:00 a.m., Witness A returned to her room to go to bed. John was
getting out of Jane’s bed. Later that morning, Jane was crying. Witness A
asked whether John “took advantage of” her, and Jane said yes.
d. Witness B
Witness B said that, on the night of the party, Jane was in the
bathroom throwing up and “wasn’t doing so well” and John said he would
help her. He confirmed that, much later that night, he and Witness A hung
out outside her room.
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A day or two after the party, John talked to Witness B about what
happened. John told Witness B that Jane was sober and speaking clearly
and they had sex.
e. Witness C
Witness C was good friends with John. On the night of the incident, he
arrived at the residence hall around 9:00 or 10:00 p.m. Upperclassmen from
John’s fraternity bought them alcohol, and he and John took the alcohol to
the party in Jane’s room. Witness C did not observe any interactions
between Jane and John at the party and did not sense there was romantic
interest on either side.
Witness C saw Jane lying on the floor of a stall in the bathroom. “[S]he
was not in a good state” and was “zonked out.”
The next day or day after that, John visited Witness C and was really
worried. He was not sure if he had done something wrong with Jane.
Witness C understood from John’s account that Jane was cold, John warmed
her up by sitting or lying down next to her, and then Jane “got all touchy.”
According to Witness C, John said he was not sure whether the encounter
was consensual or whether Jane was in the right state of mind. Witness C
told Lilliedoll that he sometimes thinks John brags about things and may not
be telling the truth. In this instance, however, John did not appear to be
bragging; he expressed confusion and a bit of guilt.
f. Witness D
Witness D was briefly in Jane’s room at the end of the party around
1:00 or 2:00 a.m. He saw John bring Jane into her room; he was holding her
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up. Jane and Witness A were going to bed, so he went to his room and went
to sleep.9
2. Evidence Gathered
Lilliedoll collected access card swipe data for John, Jane, and the five
witnesses showing when their cards were used to enter the residence hall on
the night in question. Witness D’s card was used to enter the residence hall
at 1:10 a.m. on December 3, 2017.
Lilliedoll obtained screen shots of text exchanges from the witnesses.
Texts from Witness B’s phone show that, on the afternoon of December 3,
John asked him for Jane’s and Witness A’s numbers. John also asked
Witness B to check with Witness A about whether John “did anything to piss
her off.”
3. John’s Response to the Evidence Summary
In early May 2018, Lilliedoll sent the parties her evidence summary,
informing them they could comment in writing and “suggest additional
information you believe I should pursue.”
John provided a preliminary written response on May 8 and a further
written response on May 12, 2018. He gave his own written summary of
events and responded to Lilliedoll’s interview summary for Jane line by line.
In response to Jane’s statement that she had eight or nine shots, John
wrote, “She was pacing herself for most of the beginning [of the party] and
probably started hammering drinks an hour or so before she started puking.”
Responding to Jane’s assertion that he tried to take her shirt off and
she kept pushing him away in the bathroom, John wrote, “After she kept
9 Witness E (John’s roommate) was not with John on the night of the
incident, but John told him about it. Witness E did not remember much
detail about what was said, but he thought John told him that he initiated
sex, Jane was on top at some point, and he “got a blow job.”
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gasping frantically and groaning about her back and chest pains (probably
from hunching over the toilet for so long)[,] I asked her if she was okay with
me unclasping her bra over her shirt first. She told me she was fine and
didn’t want me to do it then. Only after she continued complaining did I
bring up the idea again, saying it would make her feel a whole lot [b]etter.
Only after she said yes did I do it quickly without further intent.[10] [¶] I even
asked her if she felt better and she said yes.”
In response to Jane’s statement that John took advantage of her and
her general description that he had sex with her and she did not recall oral
sex or genital touching, John went into greater detail describing their sexual
interactions.
Responding to Jane’s statement that she felt obligated to report the
incident after she heard about a later incident involving John and some other
women, John gave his version of the later incident, but he did not question
Jane’s truthfulness in explaining her motivation to file a complaint against
him.
John proposed follow-up questions for Jane. Some questions assumed
his version of events and asked why she acted as he said she did (“Why did
she give me numerous accounts of consent and assurance that she was sober
before and during the sex?” “Why did she ask me for a condom after she
kissed me when we both woke up around 2?”) Other questions asked whether
she remembered certain very specific details of their sexual interaction. John
In his written summary of events (which he apparently wrote before
10
he provided his response to Lilliedoll’s evidence summary), John wrote, “She
complained about her back and chest hurting, so I tell her I’m going to help
her by unhooking her bra and I did (over the shirt).” Here, he did not
mention asking for permission before unhooking her bra.
16
did not suggest that Lilliedoll ask Jane about her boyfriend or about possible
motivations for fabricating her complaint.
John also responded to the interview summaries for Witness A and
Witness B and proposed follow-up questions. He did not dispute Witness A’s
description of Jane as stumbling and unable to talk when she returned from
the bathroom. Nor did John dispute Witness B’s description of the party.
4. Investigator’s Follow Up
Lilliedoll considered all of John’s proposed questions for Jane and
Witness A, and she followed up with the questions she found material.11
Lilliedoll also posed questions to John based on his written response to her
evidence summary. John did not reply to Lilliedoll’s questions.
D. Investigator’s Report: Findings and Recommendations
Lilliedoll completed her investigation report on May 23, 2018.
1. Credibility Findings
Lilliedoll found “issues with the reliability of both parties’ accounts.”
Regarding Jane, Lilliedoll found “[t]he evidence suggested [she] was severely
intoxicated,” impacting her “ability to accurately observe and recall many
relevant events.” Lilliedoll considered John’s suggestion that Jane may have
fabricated her claim because John found out she had a boyfriend or because
someone may have been “slut-shaming” her. Lilliedoll noted Witness A saw
Jane crying the morning after the incident, before John learned Jane had a
boyfriend, and before anyone would have “slut-shamed” her. Based on the
timing of the complaint, Lilliedoll found credible Jane’s explanation that she
11Lilliedoll met with Jane in person on May 16, 2018, to ask additional
questions and corresponded with Witness A with follow-up questions. In her
investigation report, Lilliedoll provided a table listing (1) each of John’s
proposed questions, (2) the question she asked or her basis for not asking the
question, and (3) the response if applicable.
17
pursued the complaint because she heard about a concerning incident
between some female classmates and John involving alcohol.
As to John, Lilliedoll observed that he “had a motive to exaggerate the
evidence of consent because there are serious consequences associated with
violating the [UC P]olicy.”12 John mentioned that he removed his pants when
he got into bed with Jane because they were wet from rain, but Lilliedoll
checked a website for weather history and found “it did not rain in Davis on
December 2, 2017.”
2. Factual Findings
Lilliedoll made 28 factual findings, which she supported with evidence
or noted that the fact was undisputed.13 Her findings included the following.
Jane and John returned from the bathroom around the 1:00 a.m. hour.14
Around that time, Jane was stumbling (based on statements from Witness
A), required help to walk (John), made gurgling noises and drooled (John),
vomited into a trash can by her bed (Witness A), loudly groaned (John), and
12Lilliedoll pointed out that John expressed concern about whether he
did something wrong with his good friend Witness C, but he was adamant
with Witness B (a friend of Jane and Witness A) that he did nothing wrong
and that Jane was sober. To her, this suggested John may have been altering
his account depending on his audience.
13Among other things, it was agreed that Jane and John did not flirt at
the party, that Jane vomited in the bathroom as the result of intoxication,
that John got into bed with Jane, and that they had sexual intercourse.
14 Lilliedoll noted that John stated he thought they left the bathroom
earlier, around 11:30 p.m., but she found other evidence supported a later
timeline. Witness D stated he was in Jane and Witness A’s room only briefly
around 1:00 or 2:00 a.m. Door swipe records showed that Witness D entered
the residence hall at 1:10 a.m., and Lilliedoll found it reasonable that he
stopped by Jane’s room at approximately that time. Both John and Witness
D reported that Witness D was in the room when John and Jane returned
from the bathroom, so they likely arrived in Jane’s room soon after 1:10 a.m.
18
was in a condition that prompted John to say he would sit with her to make
sure she was okay (John, Witness A). Witness A left the room to meet
Witness B around 2:00 a.m. because Jane’s condition was impacting her
ability to sleep.15
Lilliedoll rejected some of John’s assertions. She found the
preponderance of the evidence did not support that John “spent several hours
studying and/or sleeping before any sexual activity occurred” and did not
support that Jane “orally requested sexual activity with” John.16
3. Recommendations
Lilliedoll recommended finding (1) that Jane did not provide
“affirmative, conscious, and voluntary agreement” to sexual activity, (2) that
Jane was incapacitated and a reasonable person in John’s position should
15 Lilliedoll noted that John initially stated that Witness A was out of
the room from 2:00 a.m. to 5:00 a.m. Witness A thought she left the room
around 1:00 or 2:00 a.m. Lilliedoll reasoned that Witness A leaving the room
around 2:00 a.m. was “in line with [Jane] and [John] returning to the room
after 1:10 a.m. (when Witness D swiped into the building), then [John] going
upstairs to get his things and Witness A trying to sleep before eventually”
leaving the room to hang out with Witness B.
16 Lilliedoll did not credit John’s account that Jane repeatedly stated
she was sober and consented to sex in light of his earlier statements to his
friends in which he failed to mention consent. She reasoned, “Witness C, who
is a close friend of [John], said [John] explicitly expressed concern about
whether the encounter was consensual. Given that conversation between
[John] and Witness C, it would have made sense for [John] to have told
Witness C that he repeatedly asked [Jane] if she was sure she wanted to
engage in sexual intercourse and she said yes each time. However, Witness C
stated that [John] did not tell Witness C about any conversation between the
parties before the sexual activity other than [Jane] saying she was cold.
According to Witness C, [John] said [Jane] got ‘touchy’ and he ‘just went with
it’ because he liked it.”
19
have understood her condition, and (3) that John did not take reasonable
steps to evaluate consent.
E. John’s Response to the Investigator’s Findings and Recommendations
On May 24, 2018, the parties were sent notice of the investigator’s
findings and recommendations and an electronic copy of the investigation
report. The notice stated that the Director of the OSSJA, Donald Dudley,
would make the final determination and that the parties had until June 5 to
meet with the OSSJA or submit a written statement.
John submitted a written statement to Dudley. He suggested the
witnesses may have “collaborate[d] in what they might have said to the
Investigator” because they were friends with Jane. He argued the
investigator “seem[ed] to have an opinion in mind about what happened.” He
asserted he had never been drunk before and did not know what it felt like.
He repeated that Jane initiated intimate activity and asked, “How can I be
found in trouble for having sex with someone who, while they consumed an
amount of alcohol, made first contact?” John concluded, “In summary, what I
want to have examined is who actually initiated the interaction and the
number of times I got her consent to continue.”
F. OSSJA’s Decision
On June 15, 2018, Dudley sent the parties notice of his decision. He
agreed with Lilliedoll’s recommendation that Jane did not express
affirmative, conscious, and voluntary agreement to engage in sexual activity
with John, noting that Jane “was surprised when [John] engaged in oral sex.”
Dudley also agreed that Jane “was incapacitated and therefore not able to
give consent” and that John did not take reasonable steps given Jane’s
condition to ascertain whether he had affirmative consent. He determined
20
that the appropriate sanction was dismissal from the University of
California.
G. Administrative Appeals
On June 29, 2018, John appealed the OSSJA decision on the grounds
(1) the decision was unreasonable based on the evidence, (2) the investigation
was not fair, thorough, or impartial, (3) there was new material evidence that
undermined the claims, and (4) the disciplinary sanction did not fit the case.
The purported new evidence was a letter by toxicologist Gary Lage describing
the phenomenon of alcohol-induced memory loss of an event, also known as a
“blackout.” Lage wrote, “The fact that a person experiences alcohol-induced
amnesia of actions they took while intoxicated, does not mean that they were
too incapacitated to make voluntary decisions while they were intoxicated.”
John argued the evidence showed Jane was able to understand the fact,
nature, and extent of what happened that night, “or at the very least, it
would have seemed that way to anyone in [John’s] position.” He noted that
Jane did not remember that night, but he did, and asserted, “Indeed, almost
all of what you know about that night—almost all of the evidence Ms.
Lilliedoll cited in her analysis—comes from information that I provided.”
Written notice of the hearing was sent to the parties. The appeal
hearing officer limited the scope of the hearing to three of John’s four grounds
for appeal, excluding his claim of new evidence based on the Lage letter.17
Jane’s notice informed her that she was not obligated to attend the appeal
17UC Davis’s rules provide that “all evidence, documentation, or
suggestions of witnesses should be offered to the investigator prior to the
conclusion of the investigation.” The appeal hearing officer found that John
knew that Jane alleged she was incapacitated due to the effects of alcohol,
and he could have sought expert opinion on the issue during the
investigation. Thus, she determined, “Dr. Lage’s report is not new
information that was unavailable at the time of the investigation.”
21
hearing, and Jane told the hearing coordinator that she would not
participate.
The appeal hearing was held on August 27, 2018. John was present
with an advisor (an attorney) and a support person. John made opening and
closing statements, and the hearing officer asked questions of John, Lilliedoll,
and Dudley.
On September 13, 2018, the parties were sent notice of the appeal
hearing officer’s 14-page written decision. The Appeal Officer upheld the
findings of the original decision and modified the sanction, setting aside the
dismissal and imposing a two-year suspension from the University of
California and exclusion from University housing instead.
On September 20, 2018, John submitted a second-level appeal,
appealing the appeal hearing officer’s decision. On October 10, 2018, the
Associate Vice Chancellor of Student Affairs denied the second-level appeal.
H. Petition for Writ of Administrative Mandate
On February 21, 2019, Doe filed a petition for writ of administrative
mandate (Code Civ. Proc., § 1094.5) (§ 1094.5) and declaratory relief (Civ.
Code, § 1060). He argued the proceedings were unfair because a single
person (Lilliedoll) investigated the allegations and determined the facts and
because he was denied an opportunity to cross-examine Jane and adverse
witnesses in a live, adversarial setting before a neutral factfinder. John
relied primarily on Allee, supra, 30 Cal.App.5th 1036. John also argued
Lilliedoll lacked impartiality and substantial evidence did not support the
factual finding that Jane was incapacitated.
The trial court denied the petition.
22
DISCUSSION
A. Standard of Review
A University of California student may challenge a disciplinary
sanction of suspension or expulsion by a petition for writ of administrative
mandate. (E.g., Doe v. Regents of University of California (2016) 5
Cal.App.5th 1055, 1058, 1070 (UCSD) [student petitioned for writ of
administrative mandate to challenge his suspension from UC San Diego for
one year and one quarter after he was found to have digitally penetrated a
classmate without her consent]; Berman v. Regents of University of California
(2014) 229 Cal.App.4th 1265, 1267, 1270 [UC San Diego student petitioned
for writ of administrative mandate to set aside his two-quarter suspension for
hitting another student]; Goldberg v. Regents of University of Cal. (1967) 248
Cal.App.2d 867, 870, 873–874 [noting mandate was the appropriate remedy
where UC Berkeley students challenged on First Amendment grounds their
suspensions and dismissals for student conduct violations].)
To prevail, a petitioner seeking a writ of administrative mandate must
show the agency (in this case, UC Davis) (1) acted without, or in excess of, its
jurisdiction, (2) deprived the petitioner of a fair administrative hearing, or
(3) committed a prejudicial abuse of discretion. (§ 1094.5, subd. (b); Doe v.
University of Southern California (2016) 246 Cal.App.4th 221, 239 (USC I)
[section 1094.5’s “fair trial” requirement means there must be a fair
administrative hearing].)18 “ ‘Abuse of discretion is established if the
18 John contends he was denied a “fair process.” The fair
administrative hearing protected under section 1094.5 is sometimes referred
to as “fair process” (e.g., Doe v. Occidental College (2019) 37 Cal.App.5th
1003, 1014; Doe v. University of Southern California (2018) 29 Cal.App.5th
1212, 1228 (USC II) or “fair procedure” (e.g., USC I, supra, 246 Cal.App.4th
at p. 240; Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1445.)
23
[agency] has not proceeded in the manner required by law, the order or
decision is not supported by the findings, or the findings are not supported by
the evidence.’ ” (Ibid.; see Clark v. City of Hermosa Beach (1996) 48
Cal.App.4th 1152, 1169.)
When, as here, an administrative decision does not involve a
fundamental vested right, the trial court reviews the record to determine
whether the findings and decision are supported by substantial evidence.19
(JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142
Cal.App.4th 1046, 1057.) We review the agency’s decision, rather than the
trial court’s decision, applying the substantial evidence standard. (Id. at p.
1058.)
When reviewing a claim that a petitioner did not receive a fair hearing,
we uphold the trial court’s decision if it is supported by substantial evidence,
but when the evidence is substantially undisputed, the issue becomes a
question of law, which we review de novo. (Pinheiro v. Civil Service Com. for
County of Fresno (2016) 245 Cal.App.4th 1458, 1464; see Clark v. City of
Hermosa Beach, supra, 48 Cal.App.4th at pp. 1169–1170.)
B. Fair Process
1. Legal Principles
Generally, a fair process requires notice of the charges and an
opportunity to be heard. (USC I, supra, 246 Cal.App.4th at p. 240.) “ ‘At the
very minimum, therefore, students facing suspension . . . must be given some
kind of notice and afforded some kind of hearing.’ ” (Ibid., quoting Goss v.
19 John does not claim his suspension in this case substantially affected
a fundamental vested right. (See USC II, supra, 29 Cal.App.5th at p.1231
[“[a] university disciplinary proceeding concerning sexual misconduct does
not involve a fundamental vested right”].)
24
Lopez (1975) 419 U.S. 565, 579 (Goss).)20 Further, “a university is bound by
its own policies and procedures.” (UCSD, supra, 5 Cal.App.5th at p. 1078.)
Due process requires a “university’s procedures [to] ‘ “be tailored, in light of
the decision to be made, to ‘the capacities and circumstances of those who are
to be heard,’ [citation] . . . to insure that they are given a meaningful
opportunity to present their case.” ’ ” (Ibid.)21
Beyond these standards, however, it is safe to say the law is in flux
regarding what procedures are required for student disciplinary proceedings
involving allegations of sexual misconduct at colleges and universities. Such
proceedings do not require “all the safeguards and formalities of a criminal
trial,” and a university “ ‘is not required to convert its classrooms into
courtrooms.’ ” (UCSD, supra, 5 Cal.App.5th at p. 1078.) But the recent trend
20In Goss, the United States Supreme Court held, in the context of
temporary suspensions from public high school, that “some kind of notice”
and “some kind of hearing” were required under the federal Due Process
Clause. (419 U.S. at p. 579.) The court contemplated that the hearing would
often be no more than an informal discussion about the alleged misconduct
between the school disciplinarian and the student “minutes after [the alleged
misconduct] has occurred” where the student would be given “an opportunity
to explain his version of the facts.” (Id. at p. 582.)
21 In the introduction to his opening brief, John asserts the
administrative proceeding did not comply with due process. But in his legal
argument, he does not differentiate between “fair process” and “due process,”
and in Allee, the case on which John’s appeal primarily depends, the court
observed, “For practical purposes, common law requirements for a fair
disciplinary hearing at a private university mirror the due process
protections at public universities.” (Allee, supra, 30 Cal.App.5th at p. 1061.)
Since John never argues due process requires greater procedural protections
than he is due under his right to “fair process,” there is no separate due
process claim for us to consider. That is, John’s due process claim succeeds or
fails to the extent his fair process claim succeeds or fails.
25
has been to expect more adversarial and criminal-trial-like procedures when
a student is accused of sexual misconduct.
Previously, for example, in April 2016, Division Four of the Second
District Court of Appeal recognized in USC I that not every administrative
hearing required the accused be given the opportunity to confront and cross-
examine witnesses, noting “ ‘the pure adversary model is not entitled to
constitutionally enshrined exclusivity as the means for resolving disputes
in’ ” administrative proceedings. (USC I, supra, 246 Cal.App.4th at pp. 244–
245.) The court further observed that “cross-examination is especially
fraught with potential drawbacks” “[i]n administrative cases addressing
sexual assault involving students who live, work, and study on a shared
college campus.” (Id. at p. 245.)
Only seven months later, however, Division One of the Fourth District
held in UCSD that when the “findings are likely to turn on the credibility of
the complainant, and [the] respondent faces very severe consequences if he is
found to have violated school rules, . . . a fair procedure requires a process by
which the respondent may question, if even indirectly, the complainant.”
(UCSD, supra, 5 Cal.App.5th at p. 1084.) In that case, the court approved a
procedure under which the accused student was permitted to submit written
questions, which a panel then asked of the complainant. (Id. at pp. 1084–
1085.)
In August 2018, Division One of the Second District held in Doe v.
Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1070, that “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
26
witness’s credibility in responding to its own questions or those proposed by
the accused student.”
Then in January 2019, Division Four of the Second District (the panel
that, less than three years earlier, recognized cross-examination and an
adversarial process were not necessary components of fair process) imposed
additional procedural requirements in Allee, supra, 30 Cal.App.5th 1036.
The Allee court held, “when a student accused of sexual misconduct
faces severe disciplinary sanctions, and the credibility of witnesses (whether
the accusing student, other witnesses, or both) is central to the adjudication
of the allegation, fundamental fairness requires, at a minimum, that the
university provide a mechanism by which the accused may cross–examine
those witnesses, directly or indirectly, at a hearing in which the witnesses
appear in person or by other means (e.g., videoconferencing) before a neutral
adjudicator with the power independently to find facts and make credibility
assessments. That fact finder cannot be a single individual with the divided
and inconsistent roles [of investigator and fact finder].” (Allee, supra, 30
Cal.App.5th at p. 1069.)22
2. Procedures Required
John contends UC Davis denied him a fair process because he did not
receive a live hearing at which he could cross-examine witnesses and where
the fact finder was not also the investigator.
22 In Allee, the investigator also found facts as Lilliedoll did in this case.
(Allee, supra, 30 Cal.App.5th at p. 1069.) Previously, courts recognized,
“Overlapping investigatory, prosecutorial and adjudicatory functions do not
necessarily deny a fair hearing and are common before most administrative
boards.” (Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62
Cal.App.4th 1123, 1142; USC II, supra, 29 Cal.App.5th at p. 1235, fn. 29
[quoting Hongsathavij].)
27
As a preliminary matter, respondent argues John forfeited this claim
because he never requested the opportunity to conduct live cross-examination
and never objected to any aspect of the Procedures during the administrative
proceeding. (See Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th
765, 787 [due process claim was forfeited where the claim was not raised at
the administrative hearing]; Southern Cal. Underground Contractors, Inc. v.
City of San Diego (2003) 108 Cal.App.4th 533, 548–549 [claim that a hearing
was unfair because an entity acted as both prosecutor and adjudicator was
forfeited where the claim was not raised at the administrative hearing].)
John responds that he did raise the issue of cross-examination when he
argued in his administrative appeal that Lilliedoll failed to ask witnesses
relevant questions and failed to investigate Jane’s potential motives to
fabricate her complaint. We need not decide whether John’s claim was
forfeited, however, because we conclude the claim fails on the merits.
Here, the investigation, disciplinary decision, and administrative
appeals in this case took place in 2018, before the Allee decision was filed.
John petitioned the trial court for a writ of administrative mandate a month
after Allee came out. John argued below that UC Davis denied him a fair
process relying on Allee.23
23 We assume without deciding that Allee was correctly decided and
that its holding applies to university adjudications that occurred before the
decision came out. However, in 2020, the Legislature passed Senate Bill No.
493 (2019–2020 Reg. Sess.), which added section 66281.8 to the Education
Code. Subdivision (g)(1) of the statute provides (effective January 1, 2021),
“Any case law interpreting procedural requirements or process that is due to
student complainants or respondents when adjudicating complaints of sexual
or gender-based violence, including dating or domestic violence, at
postsecondary educational institutions in the State of California shall have
no retroactive effect.” (Ed. Code, § 66281.8, subd. (g)(1).) The question of
28
The trial court denied the petition, reasoning that the procedures
prescribed in Allee were not required in John’s case because the
determination of credibility was not “central” to the disciplinary decision.
The court, considering only undisputed facts and resolving all disputed facts
in favor of John, found that “[n]o reasonable person who witnessed what John
Doe admitted to seeing could think that Jane Roe had the capacity to consent
to sex, even after a few hours to sober up.” We likewise conclude that
credibility was not central in this case.
The university found Jane was incapacitated due to alcohol and was
therefore unable to give consent. The UC Policy provides that an accused
student’s belief that there was consent does not establish consent where “a
reasonable person should have known that the Complainant was unable to
consent because the Complainant was incapacitated in that the Complainant
was . . . due to the influence of . . . alcohol . . . unable to understand the fact,
nature, or extent of the sexual activity.”
John argues this is a “he-said-she-said” case, implying that he and Jane
gave materially contradictory accounts of the incident. But they did not. As
John describes in his opening brief, he “provided a complete account of what
occurred in the room and also provided detailed information about [Jane]’s
intoxication that was against this own interest” and Jane “did not refute [his]
account.” John emphasizes the numerous assurances he sought from Jane,
but, in the end, what matters is that the evidence provided by John was
sufficient to establish that she was incapacitated due to alcohol at the time
Senate Bill No. 493’s effect on court review of university disciplinary
proceedings is currently pending before our Supreme Court in Boermeester v.
Carry, review granted and ordered not to be published, September 16, 2020,
S263180.
29
and that a reasonable person in John’s position should have known that. And
this is squarely a violation of the UC Policy.
To recap John’s account, he knew Jane was drinking and thought she
had about six drinks. Jane started “hammering drinks an hour or so before
she started puking.” John found her “purging” in the bathroom, and she was
sometimes slouched over with her head in the toilet bowl. At one point, she
was lying on the bathroom floor, and John thought she might be choking.
She was slurring and speaking “hazily.” He described her as “gasping
frantically and groaning” from pain in the bathroom. She spent at least 30
minutes there and fell asleep on the bathroom floor at least twice. Later, in
her own bed, Jane drooled and made gurgling noises, and she was in such a
state that John thought it was a good idea to watch her to make sure she fell
asleep safely. He put a trash can by her bed in case she vomited. Later, she
had a “shivery, fluttery voice” and, even later, she was groaning loudly. He
got in bed with her, and when she initiated sexual activity with him, she
seemed like she was just waking up. Later, after they had been having sex
for a while, Jane talked about an activity she had the next morning and “she
seemed to have gotten back to herself.”
Indeed, John has acknowledged that the circumstances look bad. He
wrote to the appeal hearing officer, “I understand how, at first glance, you
could think this case is easy: [Jane] and I and had sex after she got so drunk
that she threw up. So surely she must have been too drunk to consent to
sex—case closed.”24 And, more significantly, he acknowledged, “[A]lmost all
of what you know about that night—almost all of the evidence Ms. Lilliedoll
24John went on to tell the appeal hearing officer that the case was not
so simple because Jane initiated the sexual activity and he “asked her over
and over again if she was sober enough to know what she was doing and if
she was sure she wanted to do it.” (Italics omitted.)
30
cited in her analysis—comes from information that I provided.” Thus, for
example, Lilliedoll found, “A reasonable person in [John]’s position who felt
that [Jane] was not in a condition where she could safely sleep in her own bed
unsupervised would have understood that she was unable to consent to
sexual activity.” This finding is based solely on John’s account of events.
On this record, we conclude John’s account alone was sufficient to
establish that Jane was unable to consent due to alcohol and that a
reasonable person in John’s position should have known that. As a result, we
further conclude credibility was not central to the adjudication and,
consequently, the procedures outlined in Allee were not required.
3. Fairness of the Investigation
Next, John contends Lilliedoll failed to conduct a fair, thorough, and
impartial investigation as required by the Procedures. He makes two
arguments in support of this contention.
First, John argues Lilliedoll rejected theories put forth by John that
Jane had a motive to fabricate her allegations. But Lilliedoll explained her
reasons for accepting Jane’s explanation for why she submitted a complaint,
and those reasons were not unfounded. Moreover, during the investigation,
Lilliedoll sent John summaries of all the interviews and invited him to
suggest further avenues of investigation. In response, John submitted over
20 follow-up questions for Jane, but none of them addressed possible motives
to fabricate. John had a right to an impartial investigator; he did not have a
right to have all his theories accepted.
He also complains that Lilliedoll found he “had a motive to exaggerate
the evidence of consent because there are serious consequences associated
with violating the [UC P]olicy.” While this statement in isolation might be
concerning, Lilliedoll elaborated that, soon after the incident, John expressed
31
worry to his good friend, Witness C, and indicated he was not sure whether
the sexual encounter was consensual or whether Jane was in the right state
of mind. Yet, according to Witness C, John did not mention in this
conversation that Jane repeatedly gave verbal consent to sexual activity. Of
course, we would not generally expect a college student recounting a sexual
encounter to a friend to describe every statement of the other person’s
consent, but it was not unreasonable for Lilliedoll to determine that, in the
context of a conversation discussing concern that a sexual encounter might
not have been consensual, John likely would have mentioned that Jane said
she was sober and repeatedly consented to sexual activity if that had
happened.
Second, John claims Lilliedoll uniformly rejected or discounted
evidence that was favorable to him. He points out that the appeal hearing
officer agreed with him that Lilliedoll should have considered that Jane had a
boyfriend as a motive to lie and that she gave unjustified weight to what
John said to his friends about how sexual contact was initiated. But the
appeal hearing officer also found that no alleged procedural error affected the
outcome, that the record showed “Lilliedoll thoroughly considered the
evidence, statements provided by the parties, and witnesses testimony in
reaching her findings,” and that Lilliedoll considered John’s account as well
as other evidence in determining that Jane was incapacitated.
Here, the trial court found, “Lilliedoll offered the students transparency
in her investigation, influence on its direction, and opportunities to correct
any errors. She documented the evidence that she relied on, provided that
evidence (including interview summaries) to both John Doe and Jane Roe for
comment, and allowed both students to propose follow-up questions to each
32
other and other witnesses.” Whether our review is for substantial evidence or
de novo, we agree with the trial court.
The record shows Lilliedoll did not simply accept Jane’s version of
events, nor did she treat this as an open and shut case. Instead, she
interviewed John and other students from the residence hall. Some of the
witnesses were Jane’s friends (Witness A, Witness B), but others (Witness C,
Witness E) were closer to John. Lilliedoll collected access card swipe data for
the residence hall for all the witnesses as well as dining services card swipe
data. She also requested security camera footage for the residence hall,
looking for first floor activity outside the gender-neutral bathroom and Jane’s
room, but no video was available.
Lilliedoll interviewed John in person on April 12, 2018. She then
provided him a summary of the interview, inviting him to clarify or correct
the summary. John provided comments and clarifications on April 22, which
Lilliedoll incorporated in her evidence summary. On May 2, Lilliedoll
provided John a summary of all the evidence collected in her investigation,
inviting him to “suggest additional information you believe I should pursue.”
John gave Lilliedoll his own written summary of events, a written response
to the evidence, and follow-up questions for Jane and Witness A. In response
to John’s suggested questions, Lilliedoll followed up with Jane in person and
followed up with Witness A in writing.
This record does not support John’s claim that the investigation was
anything other than fair, thorough, and impartial. John was given ample
opportunity to explain his version of the facts, and we cannot say the process
he received was unfair.
33
C. Substantial Evidence
Finally, John argues no substantial evidence supports Lilliedoll’s
finding that Jane lacked capacity. He relies on his own account that Jane
assured him she was sober when she consented to sex and toxicologist Lage’s
letter. But, again, what Jane may have said to him is not determinative.
The issue is whether there was substantial evidence to support a finding that
Jane was incapacitated due to alcohol at the time of the sexual activity and
that a reasonable person in John’s position should have known that. John’s
own account of Jane’s state that night and the accounts of eyewitnesses
provide substantial evidence of Jane’s incapacity.25
As for Lage’s letter, we cannot fault Lilliedoll for not considering expert
evidence that she was not provided. In any event, the general tenor of John’s
argument appears to be that if a student has sex with a person who is visibly
impaired by intoxication and the person later cannot remember what
happened, then the accused student’s version of events, including his
subjective beliefs, must be adopted and lack of consent under UC Policy
cannot—as a matter of law—be established by circumstantial evidence of the
person’s incapacity. We decline to adopt such a position.
DISPOSITION
The judgment is affirmed.
25 Recall that, in his line-by-line response to Witness A’s interview,
John did not dispute Witness A’s description of Jane as stumbling and unable
to talk when she returned to her room from the bathroom.
34
_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Richman, J.
A159004, Doe v. The Regents of University of California
35