Doe v. Trustees of the Cal. State Univ. CA2/6 ( 2023 )

Filed 10/3/23 Doe v. Trustees of the Cal. State Univ. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
JOHN DOE, 2d Civil No. B323486
(Super. Ct. No. 21CV-0531)
Plaintiff and Appellant, (San Luis Obispo County)
v.
TRUSTEES OF THE
CALIFORNIA STATE
UNIVERSITY,
Defendant and Respondent.
Jane Roe accused John Doe of sexual misconduct in
December 2019 while they attended California Polytechnic State
University–San Luis Obispo (CalPoly). In May 2021, a hearing
officer found the evidence supported Jane’s accusation. CalPoly
administrators agreed and suspended John for two academic
quarters.
John petitioned for a writ of administrative mandate (Code
Civ. Proc., § 1094.5), arguing he did not receive a fair hearing and
that substantial evidence did not support the findings. The trial
court denied John’s petition. On appeal from the judgment, John
contends: (1) CalPoly did not follow its policies and procedures
for investigating and adjudicating sexual misconduct complaints;
(2) he did not receive a fair hearing; (3) substantial evidence does
not support the hearing officer’s findings; and (4) his suspension
was an excessive sanction. We affirm.
FACTUAL AND PROCEDURAL HISTORY
CalPoly’s Sexual Misconduct Policies and Procedures
California State University’s (CalState) Executive Order
1097 sets forth the policies and procedures used to investigate
and adjudicate complaints of sexual misconduct. CalState
revised Executive Order 1097 in August of 2020 to address newly
enacted state and federal laws. Both the current and previous
versions apply in this case. The order in effect when the alleged
misconduct occurred in 2019 (2019 E.O. 1097) determines
whether a substantive policy violation occurred. The order in
effect during the investigation and hearing in 2020 and 2021
(2020 E.O. 1097) determines which hearing procedures apply.
2019 E.O. 1097 prohibits sexual misconduct “of any kind,
which includes sexual activity engaged in without Affirmative
Consent.” It defines “sexual activity” as “kissing, touching
intimate body parts, fondling, intercourse, penetration of any
body part, and oral sex.” It defines “Affirmative Consent” as an
“informed, affirmative, conscious, voluntary, and mutual
agreement to engage in sexual activity.” A person cannot
affirmatively consent when asleep, unconscious, or incapacitated.
2020 E.O. 1097 requires CalPoly to “respond promptly” to
complaints of sexual misconduct and to “take appropriate action
to prevent, correct, and discipline” such misconduct. CalPoly
offers an informal resolution process to those who do not wish to
initiate an investigation. The complaining party may initiate an
investigation by submitting a formal complaint if the matter is
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not resolved informally. CalPoly must investigate any complaint
falling within the scope of EO 1097.
Addendum A to 2020 E.O. 1097 sets forth the applicable
investigation and hearing process. The process first requires an
investigation by the Title IX Coordinator or their designee. The
complaining and responding parties must receive “Notice of
Investigation” that summarizes the complaint and describes the
investigation process. The investigator must also notify the
parties that they may submit evidence, identify witnesses, and
request the investigator collect evidence not available to the
requesting party. The investigator must prepare and provide the
parties with a “Preliminary Investigation Report” of the evidence.
After the Preliminary Investigation Report is shared with the
parties, the “Review of Evidence” process begins. During this
process the parties may identify additional disputed facts and
additional witnesses, provide a written response to the evidence,
submit questions to ask the other party and witnesses, and
request the investigator gather additional evidence. Once the
Review of Evidence process is complete, the parties receive the
“Final Investigation Report.” The Title IX Coordinator must
review all drafts of the report to ensure “the investigation was
sufficient, appropriate, impartial, and in compliance with the
relevant Executive Order.”
After the investigation process is completed, CalPoly must
notify the parties of the hearing date at least 20 working days in
advance. The notice of hearing must name the hearing officer.
The parties may object to the appointed hearing officer if there is
an actual conflict of interest. The parties may submit proposed
witnesses and questions in advance and may object to those
submitted by the other party. At the hearing, each party is given
10 minutes for an opening statement. The hearing officer then
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questions the parties and witnesses and the parties may propose
follow-up questions. Formal rules of evidence do not apply.
The hearing officer applies the preponderance of the
evidence standard to decide if the accused student committed the
alleged misconduct. The officer must issue a report containing
findings of fact and conclusions about whether the accused
committed a violation and, if a violation is found, recommend
appropriate sanctions. If the officer finds a violation occurred,
the president of CalPoly reviews the report and issues a decision
letter. The president may impose the recommended sanctions,
impose different sanctions, or “reject sanctions altogether.” A
party may appeal the decision to CalState’s Office of the
Chancellor.
Jane’s Accusations
John and Jane were students at CalPoly. They attended a
birthday party for a mutual friend, Natalie, on the evening of
December 7, 2019. Jane danced with John but did not remember
any solo or one-on-one interactions with him. Both drank alcohol.
When the party ended, they returned with several others to the
house John shared with his fraternity brothers. Natalie wanted
to spend the night because she drank heavily. Jane agreed to
stay with her. One of John’s roommates provided Jane and
Natalie with pajamas and blankets so they could sleep on the
downstairs couches.
The group watched a movie. John sat next to Jane. When
the movie ended Jane and Natalie prepared to sleep. John tried
to sleep next to Jane but she said there was not enough room for
him. John stood up and walked upstairs to his bedroom.
Jane awoke around 4:00 a.m. with John laying on top of
her, sucking on her neck. She told him to stop and tried to push
him away several times. He then kissed her on the lips. She
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pushed him off again, this time successfully, and he returned
upstairs. Jane texted two friends at 4:12 a.m.: “omg I just woke
up with [John] fucking on top of me like sucking my neck .n when
I told him to stop he wouldn’t.” Jane was already awake when
Natalie awoke at 6:00 a.m. Natalie noticed bruising on Jane’s
neck. They left the house without seeing John.
Jane’s boyfriend sent John a text message later that
morning accusing him of sexually assaulting Jane. John
responded that he drank too much that night and was sorry
about what happened. John then texted Natalie that he was
“appalled” by what happened and wanted to apologize in person.
Natalie responded that Jane was still processing what happened
and needed to study for finals. John wrote an apology letter soon
after. His fraternity expelled him after he self-reported the
incident to its judicial board.
Jane’s Complaint
Jane reported the incident in January of 2020 but did not
seek a formal investigation. She and John agreed to participate
in CalPoly’s informal resolution process. CalPoly terminated the
process on August 6, when John and Jane could not agree on the
terms of John’s discipline. Jane filed a formal complaint three
weeks later and met with the designated investigator for an
intake interview. CalPoly sent John and Jane a notice of
investigation in September summarizing the allegations and
encouraging them to submit evidence and names of proposed
witnesses. Both received copies of 2020 E.O. 1097 and
Addendum A.
The Investigation
John told the investigator he drank heavily on the night of
the incident. He remembered Jane dancing with him at the party
and “playfully touching his back.” She talked and flirted with
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him. When they returned to the fraternity house, Jane sat on his
lap while they hung out with friends. That was his last memory
until he woke the next morning. He recalled nothing about the
alleged incident.
The investigator interviewed Natalie and Jane’s friend,
Carsen. Natalie remembered the morning after the incident but
little of the night before. Carsen saw John and Jane talking but
noticed nothing that “stood out” to her. She left John’s house at
midnight and received Jane’s text message about the incident
early the next morning.
Three of John’s roommates met with the investigator as
well. All described John and Jane interacting flirtatiously
throughout the night. One roommate noticed them “grinding” on
the dance floor at the party and saw Jane sitting on John’s lap
when they returned to the house. The roommate remembered
walking with John upstairs after watching television with the
group. The next morning he noticed John “freaking out” after
receiving the text from Jane’s boyfriend.
Investigation Reports
John and Jane received the preliminary investigation
report in November of 2020. The investigator invited them to
respond in writing or in person. She also said they could propose
additional questions, identify other witnesses, or request she
gather more evidence. John and Jane both commented on the
report. John also made several requests including that Jane be
questioned further, that Jane’s boyfriend be interviewed, and
that additional documents be obtained. The investigator
provided the parties with the second preliminary report in
January of 2021. John and Jane again responded to and
commented on the report.
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John and Jane received the final investigation report in
February of 2021. Shortly after, they received a notice of hearing
that provided a hearing date in April 2021 and listed deadlines to
submit witness lists and questions.
The Hearing
A hearing was held over two days in April of 2021.
Mediator Lisa Jaye of JAMS presided as the hearing officer. The
attorney who represented John during the investigation served
as his advisor. The hearing officer confirmed the parties were
offered the opportunity to review the evidence. The officer
explained the process for questioning witnesses and the
“preponderance of the evidence standard” she would use to
analyze the evidence. She confirmed having prepared for the
hearing by reading the final investigation report and the
attached exhibits. When she asked if the parties had questions
before starting, John responded he did not, and that he had
“made [his] objections to the hearing process in writing.”
CalPoly’s Title IX coordinator testified first about Jane’s
allegations and the investigation. This was followed by
testimony from Jane, John, three of John’s roommates, two of
Jane’s friends (including Natalie), and Jane’s (now) former
boyfriend. The hearing officer allowed John and Jane to submit
follow up questions by email after each witness testified.
Hearing Officer’s Decision, Sanction, and John’s Appeal
The hearing officer issued a decision report in May of 2021.
She concluded it was “more likely than not that the incident
occurred, as [Jane] reported and, consequently, the allegation of
Sexual Misconduct has been substantiated.” John and Jane
submitted written impact statements after the decision
describing what they believed was the appropriate sanction given
these findings. The hearing officer recommended suspending
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John for one academic year. CalPoly agreed with the hearing
officer’s findings but suspended John for only two quarters. The
Chancellor’s Office denied John’s appeal. The trial court denied
his petition for writ of mandate.
DISCUSSION
Scope and Standard of Review
A student found to have committed sexual misconduct may
challenge the outcome of a university’s disciplinary proceedings
in a petition for writ of administrative mandate. (See, e.g., Doe v.
Westmont College (2019) 34 Cal.App.5th 622, 634 (Westmont).)
Like the trial court, we independently determine whether the
university followed its own policies and procedures and whether
the student received a fair hearing. (Id. at pp. 634-635.) “We
review the fairness of the administrative proceeding de novo.”
(Doe v. Regents of University of California (2016) 5 Cal.App.5th
1055, 1073 (UCSD).) We review the substantive decision for
substantial evidence (Doe v. University of Southern California
(2018) 29 Cal.App.5th 1212, 1231) “in the light of the whole
record” (Code Civ. Proc., § 1094.5, subd. (c)), and the sanction
imposed for abuse of discretion (UCSD at p. 1106).
John contends we should apply our independent judgment,
not the substantial evidence standard, because this case involves
fundamental vested rights. This is incorrect. “Regardless of the
nature of the right involved or the standard of judicial review
applied in the trial court, an appellate court reviewing the
superior court’s administrative mandamus decision always
applies a substantial evidence standard.” (JKH Enterprises, Inc.
v. Department of Industrial Relations (2006) 142 Cal.App.4th
1046, 1058 citing Fukuda v. City of Angels (1999) 20 Cal.4th 805,
824 and Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144.)
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It is the trial court that must determine in the first
instance which standard to apply. If it properly applied the
substantial evidence test then our function is identical to the trial
court’s, i.e., to review the administrative record to determine
whether CalPoly’s findings were supported by substantial
evidence. John concedes we must review CalPoly’s decision
directly. To the extent he contends the trial court applied the
incorrect standard, he has forfeited that contention by failing to
raise the issue below. It would not matter if he did. This case
does not involve John’s fundamental vested rights. (See Doe v.
University of Southern California, supra, 29 Cal.App.5th at
p. 1231 [“A university disciplinary proceeding concerning sexual
misconduct does not involve a fundamental vested right”].)
CalPoly Followed Its Policies and Procedures
2019 E.O. 1097 requires hearing officers to determine
“whether each allegation is substantiated by a Preponderance of
the Evidence.” “Preponderance of the Evidence” is defined as
“the greater weight of the evidence; i.e., that the evidence on one
side outweighs, preponderates over, or is more than, the evidence
on the other side.” “The burden of proof and the burden of
gathering evidence sufficient to reach a determination regarding
responsibility rests on the University and not on the Parties.”
John contends the hearing officer improperly likened the
preponderance standard to the “scales of justice” and deprived
him of a presumption of innocence required under the
University’s “policies and procedures.” “By placing [John] and
the University on equal footing at the beginning of the hearing,”
he argues, “the Hearing Officer required both parties to provide
proof, improperly placing the burden on [John].” We again
disagree. The hearing officer’s report accurately recites the
preponderance of evidence standard and its statutory basis in the
9
Education Code. (See Ed. Code, § 67386, subd. (a)(3) [“A policy
that the standard used in determining whether the elements of
the complaint against the accused have been demonstrated is the
preponderance of the evidence”].) The applicable policies and
procedures did not create a presumption of innocence. Referring
to John’s lack of evidence did not show the hearing officer shifted
the burden of proof or held him to a heightened evidentiary
standard. As discussed below, it reflects the officer’s finding that
prior flirting between John and Jane did not establish Jane
received the hickies prior to 4:00 a.m. or received them during
consensual sexual activity with John.
John next contends “the Final Investigation Report was
written with a biased slant, intended to influence the reader to
believe that [John] altered his story while [Jane] did not.” He
cites language such as “‘For the first time, [John] mentioned,’”
“‘[John] further implied,’” and “‘for the first time, [John] also
asserted’” as showing the investigation was not “‘sufficient,
appropriate, [and] impartial, and in compliance’” with E.O. 1097.
Again we disagree.
We do not view this language as biased. John knew about
Jane’s core allegations from Jane’s boyfriend’s text messages on
December 8, 2019. John received more details regarding the
allegations in the notice of investigation in September of 2020.
John stated at his October 6 interview that Jane flirted with him
throughout the evening and sat on his lap when they returned to
his house. John did not accuse Jane of lying until later, when he
responded to the first preliminary investigation report. His late
accusations were worthy of note and do not reflect bias on the
part of the investigator.
John could have asked the investigator to revise or remove
this language after receiving the second preliminary
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investigation report. He did not. Nor did he raise his concerns at
the hearing. At the end of John’s initial testimony, the officer
asked “[a]re there any portions of the final investigation report,
any exhibits that you want to call to my attention?” John
responded, “No, not at this time.”
John next asserts the investigation “was not complete”
because “[i]t was limited to the information [Jane] chose to
provide.” He states the investigator allowed Jane to answer
questions “broadly and generally” and failed to obtain “important
details” such as the precise time Jane noticed the hickies on her
neck on the morning of December 8, 2019. He cites the
investigator’s failure to obtain additional pictures and text
messages, or to better authenticate Jane’s original pictures, as
further examples of the investigation’s deficiencies.
2020 E.O. 1097 requires “tak[ing] reasonable steps to
gather all relevant evidence from the Parties, other witnesses or
other sources.” The investigation complied with this standard
and it was not limited to information Jane “chose” to provide.
The investigator interviewed Jane, John, and six witnesses,
including Natalie, Carsen, three of John’s roommates, and Jane’s
former boyfriend. Three of the six exhibits attached to the
preliminary report were known to John long before the
investigation began, i.e., his apology letter to Jane and text
messages with Natalie and Jane’s boyfriend. The investigator
issued two preliminary reports and sought John’s comments on
each during the review of evidence process.
John Received a Fair Hearing
The procedures for adjudicating complaints of sexual
misconduct at a university need not mirror those provided in
criminal cases. (Boermeester v. Carry (2023) 15 Cal.5th 72, 94.)
Providing this level of due process would “‘divert both resources
11
and attention from a university’s main calling, that is education.’”
(Id., quoting UCSD, supra, 5 Cal.App.5th at p. 1078.) A
university “must nevertheless give the accused student notice of
the allegations against him or her and a fair hearing at which he
or she may attempt to rebut those allegations.” (Westmont,
supra, 34 Cal.App.5th at p. 634.)
John contends he did not receive a fair hearing for the
following reasons, among others: (1) the hearing officer
predetermined the truth of important facts; (2) the officer
permitted witnesses to testify regarding ultimate issues; (3) the
officer denied him the right of cross-exam; and (4) the officer did
not provide him “any meaningful opportunity to present a full
defense” or give him “the opportunity to make a closing
statement.” None of these is persuasive.1
John argues the hearing officer “accepted [CalPoly’s]
charges that [John] was the responsible party and that the action
occurred at 4:00 a.m. without obtaining evidence to support those
findings.” He states the officer “blithely overlooked” making
findings on these issues and focused solely on the issue of
consent. He builds this argument on a single sentence stating,
“The issue in this case is whether the sexual activities were
consensual.” John reads the sentence in isolation. The hearing
officer’s decision repeatedly refers to the misconduct as “alleged”
and explains why the officer sustained those allegations. We also
reject John’s related assertion that the officer “telegraphed” her
predetermined findings to the witnesses while questioning them,
1 John again argues the hearing officer applied the
improper standard and burden of proof. The argument fails for
the reasons stated above. Any other arguments John raised that
are not expressly addressed in this opinion lack merit.
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particularly about consent. John and Jane submitted questions
for the officer to ask at the hearing. Asking a particular question
did not mean the officer agreed or sided with the party who
prepared it, only that the question fell within 2020 E.O. 1097’s
broad definition of “relevant.” (2020 E.O. 1097, art. IX.10, Art.
II.F.)2
John asserts Natalie should not have opined on the
ultimate issue of whether Jane consented to John’s acts. He cites
no objection on this ground in the record. Even if he did object,
allowing such testimony did not deprive him of a fair hearing.
“Formal rules of evidence applied in courtroom proceedings (e.g.,
California Evidence Code) do not apply in [a Title IX] hearing.”
(2020 E.O. 1097, art. IX.12.) “[T]he hearing officer is not bound
by, but may take guidance from, the formal rules of evidence”
when determining whether “to discard or rephrase” the questions
submitted by the parties. (Ed. Code, § 66281.8, subd.
(b)(4)(A)(viii)(III).)
John next contends the hearing procedures gave him no
opportunity to cross-examine witnesses. He misunderstands
what the law requires. “A student accused of sexual misconduct
is not entitled to directly cross-examine the alleged victim or
other witnesses who testify at a sexual misconduct hearing.”
(Westmont, supra, 34 Cal.App.5th at p. 638.) The accused
student need only be permitted to pose questions indirectly, such
as through the hearing officer. (Id. at p. 639.) This procedure is
now codified. (See Ed. Code, § 66281.8, subd. (b)(4)(A)(viii)(I) &
(III).) The hearing officer adhered to these procedures and,
2 Article II.F. of 2020 E.O. 1097 defines “Relevant” as
“having significant and demonstrable bearing on the matter at
hand.”
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further, permitted the parties to submit follow-up questions after
the initial testimony of each witness.
Lastly, John contends he did not receive “any meaningful
opportunity to present a full defense,” including “the opportunity
to make a closing statement.” He again misunderstands the
procedures CalPoly must follow. “[T]he investigation and
adjudication of alleged misconduct under this section is not an
adversarial process between the complainant, the respondent,
and the witnesses, but rather a process for postsecondary
institutions to comply with their obligations under existing law.”
(Ed. Code, § 66281.8, subd. (b)(4)(A)(i).) ““‘The judicial model of
an evidentiary hearing is neither a required, nor even the most
effective, method of decisionmaking in all circumstances.’””
(Boermeester v. Carry, supra, 15 Cal.5th at p. 94, quoting Murden
v. County of Sacramento (1984) 160 Cal.App.3d 302, 311.) The
hearing followed the procedures set forth in 2020 E.O. 1097. The
parties received ten minutes for opening statements. The Title
IX Coordinator testified as the first witness for the purpose of
“describ[ing] the Formal Complaint, investigation process, and
summariz[ing] the evidence.” The length and content of each
witness’s testimony depended on the questions submitted by the
parties. Closing statements were not allowed under 2020 E.O.
1097.
CalPoly Did Not Deprive John of Support Services
John states CalPoly treated him differently than Jane by
depriving him of “considerable resources and an advocate” during
the proceedings. This is not so. Page 3 of CalPoly’s notice of
investigation stated: “Right to a Support Advisor [¶] Please be
informed that you have the right to a Support Advisor
throughout the Complaint process. This includes having a
Support Advisor present during any meeting we have with you.
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A Support Advisor can be a friend, family member, union
representative, attorney, or any other individual of your choice,
. . . . If you do not have a Support Advisor, but would like one,
one may be assigned to you through the Office of Equal
Opportunity (“OEO”) Party Advisor Program.” John never
requested CalPoly provide him an advisor. He designated an
attorney to serve this role instead.
Substantial Evidence Supports the Hearing Officer’s Findings
John argues the hearing officer “re-wrote” the evidence to
support her predetermined findings and disregarded evidence
that Jane fabricated her allegations. We do not weigh the
evidence, resolve conflicts therein, or consider the credibility of
witnesses when reviewing the hearing officer’s decision. (UCSD,
supra, 5 Cal.App.5th at p. 1073.) Instead, we accept all evidence
supporting the decision, draw all inferences supporting it, and
disregard contrary evidence. (Id. at p. 1074.) It is “‘[o]nly if no
reasonable person could reach the conclusion reached by the
[officer], based on the entire record before [her], [that we would]
conclude that the . . . findings are not supported by substantial
evidence.’ [Citations.]” (Id., at p. 1073.)
Jane testified she awoke around 4:00 a.m. to John sucking
on her neck. She told him to stop and tried to push him off. He
kissed her. John testified he could not remember this because he
drank to blackout. He recalled Jane flirting with him earlier,
which was corroborated by his roommates. John then postulates
Jane must have received the hickies before 4:00 a.m. and,
therefore, that she fabricated her allegations.
The hearing officer was not required to believe John’s
account over Jane’s. Jane’s testimony alone constitutes evidence
substantiating her allegations. (UCSD, supra, 5 Cal.App.5th at
p. 1074 [“the testimony of a single witness, even that of a party,
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is sufficient to provide substantial evidence to support a finding
of fact”].) John fails to show that no reasonable person could
have reached the hearing officer’s conclusion.
John’s Suspension Was Not an Abuse of Discretion
Finally, John contends CalPoly “failed to provide any
evidence to support its determination that the two-quarter
suspension was appropriate or was in any way related to the
extremely brief duration of a single act that resulted in no
injuries.” We review CalPoly’s sanction for abuse of discretion.
(UCSD, supra, 5 Cal.App.5th at p. 1106.) Pursuant to this
standard of review, we “cannot ‘substitute [our] discretion for
that of the [university] concerning the degree of punishment
imposed.’” (Ibid.) “‘[I]t is only in the exceptional case, when it is
shown that reasonable minds cannot differ on the propriety of the
penalty, that an abuse of discretion is shown.’” (Ibid.)
CalPoly’s Title IX Coordinator and Student Conduct
Administrator jointly proposed suspending John for one academic
year. The hearing officer agreed, noting John was previously
found responsible for an alcohol-related violation of CalPoly’s
University Housing Community Standards. John admitted to
violating these standards again when he drank on the night of
the incident. The hearing officer noted Jane received physical
injuries (“hickies,” John’s preferred euphemism for bruising) and
struggled academically and emotionally after the incident.
Despite the unanimous recommendations of the Title IX
Coordinator, the Student Conduct Administrator, and the
hearing officer, CalPoly’s president imposed a lesser sanction: a
suspension of two quarters, at the end of which John could
register for classes so long as he obtained an alcohol and
substance abuse assessment from a licensed therapist. This
temporary hiatus from taking classes at CalPoly, even if noted on
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John’s transcript, does not strike us as an exceptional penalty
given the gravity of the hearing officer’s findings. (See UCSD,
supra, 5 Cal.App.5th at p. 1108 [affirming university’s
lengthening of recommended suspension by one quarter for
“utterly unrepentant” respondent who “berated the victim” of
alleged sexual misconduct at hearing].)
DISPOSITION
The judgment is affirmed. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
YEGAN, Acting P.J.
BALTODANO, J.
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Rita Federman, Judge
Superior Court County of San Luis Obispo
______________________________
Hathaway Parker, Mark M. Hathaway and Jenna E.
Parker for Plaintiff and Appellant.
California State University Office of General Counsel,
Susan Westover and William C. Hsu for Defendants and
Respondents.