Doe v. Occidental College

Filed 7/2/19; Certified for Publication 7/24/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JOHN DOE, B282292
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS150532)
v.
OCCIDENTAL COLLEGE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Werksman Jackson Hathaway & Quinn, Mark M.
Hathaway and Jenna E. Eyrich for Plaintiff and Appellant.
Epstein Becker & Green, Jonathan M. Brenner and Susan
Graham for Defendant and Respondent.
——————————
FACTUAL AND PROCEDURAL BACKGROUND
John Doe (Doe) appeals from the judgment of the trial court
denying his petition for writ of mandate. (Code Civ. Proc.,
§ 1094.5.) He sought to set aside his expulsion from Occidental
College after an outside adjudicator found he had sexually
assaulted and engaged in non-consensual sexual contact with
Jane Roe (Roe), another student. Doe contends he was denied a
fair hearing and the decision was not supported by substantial
evidence. For the reasons given below, we affirm the judgment.
I. Occidental’s sexual misconduct policy
Occidental has a comprehensive policy (the policy) that
prohibits “all forms of . . . misconduct, including . . . sexual
assault” and “[n]on-[c]onsensual [s]exual [c]ontact.” The policy,
which applies to all members of the Occidental community,
defines these terms and explains the concepts of consent and
coercion.
Occidental’s policy contains thorough procedures for
adjudicating policy violations. Upon receipt of a report of a
potential violation of the policy, Occidental may impose
reasonable and appropriate interim measures to eliminate the
hostile environment and protect the parties. Such measures
include a campus-wide “[s]tay-[a]way [l]etter,” changing class
schedules, and an interim suspension.
With a sexual misconduct report, Occidental’s Title IX team
conducts an “Initial Title IX Assessment.” Occidental gathers all
of the relevant facts and determines whether to pursue an
informal resolution, or whether there is sufficient information to
refer the report to a hearing panel for disciplinary action in a
formal resolution format. Occidental notifies the respondent, the
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alleged perpetrator, when it seeks action that would have an
impact on the respondent, such as protective measures that
restrict his or her movement.
If the Title IX team concludes that disciplinary action may
be appropriate, Occidental initiates an investigation, by either an
Occidental employee or an external investigator. The
investigation “will typically include interviews with the
Complainant, the Respondent and any witnesses,” and the
gathering of any documents and other evidence. The policy
requires the investigation be “thorough, impartial, and fair” and
“designed to provide a fair and reliable gathering of facts” under
“principles of fundamental fairness and respect for all parties.”
All individuals in this investigation, including the respondent,
are to be treated with “appropriate sensitivity and respect.”
The investigator prepares a written report, based on which
the Title IX team and hearing coordinator will “make a threshold
determination as to whether there is sufficient information upon
which an adjudicator could find a violation of this policy.” When
an adjudicator could find a policy violation, Occidental may
institute formal resolution proceedings against the respondent
involving a hearing before either a faculty panel or an external
adjudicator.
The hearing coordinator sends a written notification letter
to the respondent containing a brief summary of the conduct at
issue and the specific provision of the policy violations that are
alleged to have occurred. The hearing coordinator also schedules
separate meetings with the parties to explain the hearing process
and to answer questions. The parties may review all
investigative documents “at least five (5) business days prior to
the hearing.” At the hearing itself, the parties may call all non-
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character witnesses who were interviewed by the investigator,
make oral or written inquiries of the investigator, and address
outstanding factual issues.
The adjudicator determines responsibility by a
preponderance of the evidence and recommends appropriate
sanctions to the hearing coordinator. The respondent may appeal
the final outcome to an impartial decision-maker.
II. The sexual misconduct allegations against Doe and the
interim measures
The administrative record shows that Roe, a freshman,
reported to Occidental’s Title IX office an incident of sexual
misconduct by Doe, a junior, that occurred on September 28 to 29,
2013. Roe asked for a stay-away letter. On October 28, 2013, the
dean of students issued Doe a stay-away letter instructing him to
refrain from approaching Roe, or from calling, texting,
communicating with, or sending her messages.
The following day, Doe went to the dean of students’ office
who directed him to Nadia Palacios (Palacios), the coordinator of
Occidental’s Project Sexual Assault Free Environment (Project
SAFE), a victim’s advocacy center. Doe and Palacios recognized
each other because Doe had heckled her during a Project SAFE
presentation a month earlier. Palacios told Doe that she was a
survivor advocate only and repeatedly directed him back to the
dean of students or to the Title IX office. Doe “smirked” at
Palacios and complained about the stay-away letter, asserting
that Occidental appeared to accept Roe’s account of events and to
take his version less seriously. Palacios explained that her office
was duty-bound to accept a complaint at face value and then to
investigate. Nevertheless, Doe continued to talk. Palacios
eventually calmed him down. But, as he stood up to leave, Doe
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saw an educational poster debunking “rape myths” and became
visibly angry. He yelled at Palacios loudly and aggressively for
10 minutes that “ ‘[t]hese girls wear whatever they want and they
tease us all night and they expect us not to get anything;’ ” “ ‘[t]he
girls owe him something;’ ” and “ ‘[n]othing ever happened that
night. I don’t even know this girl.’ ” Doe was “very emotional
and vented.” Palacios felt threatened by his conduct, although
Doe never explicitly threatened her.
Doe’s outburst was overheard by Kristofer Montoya, a
student leader and captain of the men’s basketball team who was
doing homework at Project SAFE that day. Montoya related that
Doe told Palacios “ ‘[t]here were no bruises, I didn’t hit her or
anything . . . so that’s not rape, that’s not sexual assault.’ ” Doe
insisted that the accusations against him were ridiculous, unfair,
and unbelievable. Doe asked, “[i]f she goes back to the room and
entices me all night, how can you expect me to think nothing’s
going to happen?” Doe declared that “[m]en are the victims
because they are not expected to do anything at the end of the
night.”
After Doe left Project SAFE, Palacios called campus safety
officers to report the incident. She called Roe to warn that Doe
was upset by the stay-away letter. She also emailed the dean of
students to report Doe’s conduct.
III. Roe’s complaint against Doe
In the days and weeks following the incident, Roe discussed
it with her friends. Roe told three friends that Doe penetrated
her vagina with his penis and that she kept telling him she did
not want to have intercourse; she told him to stop and he kept
trying to have sex with her. She told one friend that Doe was
aggressive and manipulative. She related to another friend that
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she informed Doe that she was a virgin and did not want to have
sex with him, and that Doe agreed that the two would watch
movies and hang out. She also told that friend that Doe would
not let her leave his room. Her friends indicated that Roe
appeared upset about what had happened with Doe, and that Roe
was initially uncertain whether what happened constituted
sexual assault. One friend, who had received sexual assault
training, told Roe that what she described was sexual assault and
arranged a meeting between Roe and Palacios.
Roe also told her Residential Advisor Tess Langseth-
DePaolis (Langseth-DePaolis), and Professor Shanna Lorenz
(Lorenz) about the incident, using the word “rape” to describe
what happened to her. Roe told Langseth-DePaolis that she was
a virgin and did not want to have sex, but that Doe was “very
pushy and kept pushing and kept kissing and kept touching” Roe
until they had sex. Roe told Lorenz that she “tried to get out, but
she was dragged back into the room by [Doe].”
Two days before her meeting with Palacios, Roe
experienced non-menstrual related vaginal bleeding and
irritation and went to Occidental’s student wellness center to
request pregnancy and STD tests, and a PAP smear. The staffer
who performed the latter two tests was unavailable. Roe was
very upset that the vaginal bleeding meant her hymen had been
broken. She did not tell the staff she was raped, but did indicate
that she had sexual intercourse with a man for the first time and
ask if her hymen had been broken.
At her scheduled meeting with Palacios, Roe related what
happened, including that she was penetrated multiple times
without consent. She did not identify Doe by name.
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Doe violated the stay-away letter. Roe began feeling that
her encounters with Doe were not random and that he was
“purposefully trying to find [her]” or “find ways to intimidate
[her] and make [her] feel unsafe.” Roe was freaked out and
reported to Palacios an incident one evening when Doe walked
directly up to her and got “really close to her face.” He said
something that she could not hear because she had earphones on.
On December 13, 2013, the office of the dean of students
emailed Doe that he may have engaged in behavior that violated
the stay-away letter and reminded him not to violate its
instructions.
In the new semester, Roe’s class schedule was such that
she saw Doe up to eight times a day, which she found very
upsetting. Also, Roe observed Doe’s behavior towards other
female students and heard about encounters he had with other
women. Roe told Palacios that she was afraid of Doe and worried
he might do something to her friends. She felt that “it wasn’t
healthy for him to be on the same campus with her.”
Roe filed her formal sexual assault complaint on
January 31, 2014. The report reflected that the two had met
previously at a fraternity party where they kissed. He asked for
sex but she declined, telling him she was a virgin. On the
evening of September 28, 2013, Roe saw Doe at the GLO dance
party. They kissed. He asked if she wanted to have sex. She
said no, but agreed to make out with him in his room. Once
there, Doe penetrated Roe with his penis. She told him “no and
to stop. They continued making out and he penetrated her
again.” After the third time, she screamed but he put his hand
over her mouth. She tried to leave but he pulled her back and
downplayed her desire to remain a virgin. He told her “she owed
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him something” and asked for anal sex. Believing she could not
leave the dormitory without a key, she acquiesced to his request.
Later, she put her clothes on and fell asleep in the room. The
next morning, Doe penetrated her anus again. Doe then walked
Roe back to her dormitory.
IV. Notice to Doe; the interim suspension; and the
investigation
Occidental sent a notice to Doe on February 6, 2014
advising him of Roe’s complaint alleging an incident of sexual
misconduct on September 28 to 29, 2013, and that Occidental
would conduct a formal resolution process which would include
an investigation. The notice told Doe where he could find the
policy and provided a contact to obtain more information on the
investigation and the complaint. Due to the nature of the
allegations, Occidental imposed an interim suspension on Doe,
effective February 6, 2014, and pending resolution of the
complaint.
Doe immediately engaged counsel and a private
investigator who, in February 2014, took recorded statements of
three of Doe’s friends.
Occidental engaged Public Interest Investigations, Inc.
(PII) as the external investigator. PII interviewed Roe on
February 13, 2014. Beginning on February 14, 2014, PII
repeatedly attempted to interview Doe. They exchanged emails
discussing Doe’s concerns about the investigation. Finally, PII
interviewed Doe on March 20, 2014, and provided him access to
his interview summary on April 4, 2014. Between February 13
and April 2, 2014, PII interviewed 12 witnesses, plus Doe and
Roe, and reviewed medical records, electronic logs, text messages,
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floor plans, and other evidence. PII also toured the campus
grounds and Doe’s dormitory.
A. Roe’s account of the incident to PII
Roe told PII that the two met a few times before the
incident. Once at a fraternity party, they danced and engaged in
consensual kissing. She declined his invitation to go to his dorm
room, stating that she was a virgin and did not want to have sex
with him. Doe responded, “That’s ok. I respect that.”
Roe came to the GLO dance with a group of friends on the
night of September 28, 2013. She ate a marijuana candy and
drank two shots of liquor. Doe had consumed approximately six
beers.1 The two danced and kissed. Doe invited Roe back to his
room and she again told him that she was a virgin and would not
have sex with him; “if that is what you want, you should find
someone else.” Doe responded that he just wanted to make out,
and “I won’t force you to do anything else.” Roe explained that
when she first agreed to go to Doe’s room, she expected they
would engage in oral sex but not sexual intercourse.
Once in Doe’s room, the two engaged in mutual sexual
conduct, including kissing, fondling, and oral sex. She then
attempted to leave his room because he made comments that she
found troubling, including that he was contemplating being “evil
for the rest of his life.” When she tried to leave, Doe pulled her
back on the bed “very forcefully,” placing both of his hands on her
1 The adjudicator eventually found that although both
parties admitted that they had consumed alcohol and Roe
admitted that she consumed marijuana, neither party asserted
that they were incapacitated and so the element of incapacity
was not considered by the adjudicator.
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shoulders or her waist. Roe felt “trapped” and unable to leave,
while Doe continued to “rant about feeling like an outsider.”
Doe apologized for his remarks and they began kissing
again. She closed her eyes while Doe started touching her vagina
with his hand. Then she felt something that was “harder than
his hand inside [her].” Realizing it was his penis inside her
vagina, Roe started “freaking out” and felt like she was going to
throw up. She asked Doe what he was doing and told him, “[y]ou
aren’t going to have sex with me.” Doe pulled his penis out of her
vagina and said, “You can’t come in here and torture me like that.
It’s not fair. Do you do this to all men?” Roe told Doe she wanted
to leave. Doe apologized again and suggested that they just
“pleasure each other.”
According to Roe, the two engaged in more mutual kissing
and fondling, but he once again inserted his penis into her vagina
without her consent. Roe asked him to stop and he did. Roe told
him she did not want him to take her virginity. Doe asked her,
“Why should your virginity even matter?” Roe told Doe she felt
really uncomfortable. Doe promised he would not penetrate her
vagina with his penis again. Roe felt she could not leave because
she had already tried twice but was prevented by Doe. She
stayed based on his promise. Between five and 20 minutes later,
Doe again inserted his penis into her vagina. Roe screamed. Doe
placed his hand over her mouth and said, “Don’t scream, my
roommates will hear.” She told him to stop and he pulled his
penis out of her vagina.
Doe began yelling at her, “You are torturing me” and that
she had at least to agree to give him oral sex. Consenting, Roe
did so briefly before Doe stopped her so he could go to the
bathroom. While Doe was in the bathroom, Roe contemplated
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leaving but mistakenly thought she needed a key card to exit the
building and did not think that Doe would let her out based on
his earlier conduct when she had tried to leave. She felt “scared
and fearful,” “unhappy and confused,” and that Doe was
“manipulative.”
When Doe returned from the bathroom, he told Roe that it
was “not fair, and she had to at least agree to have anal sex with
him.” She told him she did not want to but Doe insisted that
“[y]ou have to.” Roe agreed because she felt pressured to say yes.
She was exhausted and wanted to sleep. She began yelling when
Doe penetrated her anus. He stopped and complained that she
did not let him “put it in all the way.” The two eventually went to
sleep. The following morning, Doe again inserted his penis into
Roe’s anus. She pushed him away. He stopped. Roe told Doe she
wanted to leave. Doe walked Roe back to her dorm.
Langseth-DePaolis related to the investigator that Roe
claimed to have “flashbacks and [was] thinking about [Doe].” Roe
told Langseth-DePaolis that she was “really nervous and she felt
like throwing up and [was unable to] breathe.” Lorenz told the
investigator that Roe appeared “shocked” and did not want to
discuss the details but asked for extensions on assignments.
Since the incident, Lorenz reported, Roe struggled in class and
was “in a fog” “more in shock, like a deer in traffic.”
B. Doe’s account of the incident to PII
Doe denied much of Roe’s account in his interview with PII.
He reported that Roe did not say she was a virgin and that she
did not want to have sex with him, although he already knew
about her virginity. Doe stated he had no intention of having sex
with Roe; he only planned to “fool[ ] around a little bit.” When
questioned further, Doe stated he did not remember whether Roe
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talked about being a virgin or not wanting to have sex. He later
stated that at some point, he brought up Roe’s virginity and
recalled reassuring her that he would not pressure her to have
sex. Doe denied having sexual intercourse that night. He
claimed that Roe “random[ly]” suggested they try anal sex,
without his prompting, and as a result the first anal penetration
was consensual. Doe denied Roe attempted, or said she wanted,
to leave his room at any point, nor did he try to prevent her from
leaving.
Doe’s two roommates were home in their triangle dorm
suite with their respective doors closed when Roe and Doe
arrived. They did not see or hear Roe. One roommate confirmed
to the investigator that Doe knew that Roe was a virgin. Doe told
him that there was “a disagreement about what they would do
[sexually] and how far they were going to go.” Doe told the
roommate that he and Roe ended up talking most of the night.
V. Procedural background
PII provided its final investigation report, along with
summaries of the witness interviews and other evidence, to
Occidental’s Title IX hearing coordinator. The hearing
coordinator found “there [was] sufficient information upon which
a determination of a potential violation of the . . . Policy [could] be
made.” The hearing coordinator sent Doe and Roe a notice of the
charges on April 25, 2014. The notice contained Roe’s allegation
that Doe had vaginal intercourse with her three times and anal
intercourse with her two times, all without her consent. Roe
further alleged Doe used coercion to engage in these acts of non-
consensual sex and to prevent her from leaving his room. The
notice informed Doe that he was being charged with violating the
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policy’s prohibition against sexual assault and non-consensual
sexual contact.
On May 2, 2014, the hearing coordinator notified Doe of the
May 12, 2014 hearing date. The notice identified the external
adjudicator and provided Doe with electronic access to the
password-protected website containing all of the investigation’s
documents and evidence. Doe viewed the information on the
website seven times between May 2, 2014 and May 10, 2014.
The hearing took place on May 12, 2014 and lasted five
hours. Six witnesses testified, including the PII representative.
In her May 14, 2014 written decision, the adjudicator found by a
preponderance of the evidence that Doe vaginally and anally
penetrated Roe without effective consent, thereby violating
Occidental’s policy. Occidental permanently separated Doe from
the college immediately.
Doe appealed the decision to Occidental’s associate dean of
students. After his appeal was denied, Doe filed his petition for
writ of mandate seeking to have Occidental set aside its decision.
His petition alleged that Occidental abused its discretion by
failing to proceed in the manner required by law because it
denied him a fair hearing and its findings were unsupported by
the evidence. In a comprehensive statement of decision, the trial
court denied the petition. Doe filed his timely appeal from the
ensuing judgment.
DISCUSSION
I. Standard of review
The remedy of administrative mandamus under Code of
Civil Procedure section 1094.5 “ ‘ “applies to private organizations
that provide for a formal evidentiary hearing.” ’ [Citation.] In
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cases that do not ‘ “involv[e] a fundamental vested right,” ’ we
review the [adjudicator’s] decision rather than the trial court’s
decision, ‘ “applying the same standard of review applicable in
the trial court.” ’ [Citation.] This standard has been applied to
college disciplinary decisions involving sexual misconduct.” (Doe
v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1065
(CMC).)
“When reviewing the denial of a petition for writ of
administrative mandate, we determine ‘whether [Occidental] has
proceeded without, or in excess of, jurisdiction; whether there
was a fair trial; and whether there was any prejudicial abuse of
discretion.’ [Citations.] In this context, ‘fair trial’ refers to a fair
administrative hearing. [Citation.] We review the fairness of the
proceedings de novo, and the substantive decision for substantial
evidence.” (CMC, supra, 25 Cal.App.5th at p. 1065.)
II. Fair process
“Generally, a fair procedure requires ‘notice reasonably
calculated to apprise interested parties of the pendency of the
action . . . and an opportunity to present their objections.’ ” (Doe
v. University of Southern California (2016) 246 Cal.App.4th 221,
240 (USC).)
The cases do not plainly define the components or
standards of a fair hearing in student disciplinary proceedings
involving allegations of sexual misconduct. (USC, supra, 246
Cal.App.4th at p. 245; Doe v. Regents of University of California
(2016) 5 Cal.App.5th 1055, 1078 (Regents).) A fair hearing “need
not include all the safeguards and formalities of a criminal trial.”
(Regents, at p. 1078.) “ ‘[T]he pure adversary model is not
entitled to constitutionally enshrined exclusivity as the means for
resolving disputes in “[t]he incredible variety of administrative
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mechanisms [utilized] in this country.” ’ ” (USC, at p. 244.)
“[C]ourts have recognized competing concerns. On the one hand,
an accused student has an interest ‘ “to avoid unfair or mistaken
exclusion from the educational process, with all of its unfortunate
consequences. . . . The risk of error is not . . . trivial, and it
should be guarded against if that may be done without
prohibitive cost or interference with the educational process.” ’ ”
(CMC, supra, 25 Cal.App.5th at p. 1066.) “On the other hand,
‘ “[a] formalized hearing process would divert both resources and
attention from a university’s main calling, that is education.” ’ . . .
[Citation.] Disciplinary proceedings involving sexual misconduct
must also account for the well-being of the alleged victim, who
often ‘live[s], work[s], and stud[ies] on a shared college campus’
with the alleged perpetrator.” (Ibid.; USC, at p. 245.)
While no particular form of student disciplinary hearing is
required in California, “ ‘[a]t the very minimum, . . . students
facing suspension . . . must be given some kind of notice and
afforded some kind of hearing.’ [Citation.] The hearing need not
be formal, but ‘in being given an opportunity to explain his
version of the facts at this discussion, the student [must] first be
told what he is accused of doing and what the basis of the
accusation is.’ ” (USC, supra, 246 Cal.App.4th at p. 240.)
Universities are bound by their own policies and procedures.
(Regents, supra, 5 Cal.App.5th at p. 1078.) And, “ ‘to comport
with due process,’ the university’s procedures must ‘ “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.)
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A. No violation of the policy’s notice requirements
Doe contends that Occidental violated its policy by failing
to provide him timely notice. He argues he “did not receive notice
of Roe’s complaint until after [Occidental] completed its
investigation, nearly three months after Roe filed her complaint.”
He also argues he did not receive a “summary” of the allegations
against him before he was interviewed. To be clear, Doe does not
challenge the legal sufficiency of the policy, and he does not
contend that he never received notice of the specific allegations
against him, or that he was precluded from presenting his case at
the hearing. Rather, he argues that he did not receive notice
before he was interviewed by PII in March 2014.
Doe is wrong. Occidental gave Doe notice on February 6,
2014—a week after Roe filed her complaint. In compliance with
appendix A, section (V)(D)(1) of the policy, that notice advised
Doe that Roe was “alleging an incident of sexual misconduct,” a
term used in the policy, “on or about September 28-29, 2013.”
(Italics added.) The notice contained links to the policy and the
student code of conduct, and provided contact information if Doe
had questions about the complaint. Thus, Doe received notice
shortly after Roe filed her complaint, prior to his interview, and
before PII completed its report. Even earlier than that,
Occidental gave Doe notice that Roe had made a report on
October 28, 2013, when it sent him the stay-away letter, and on
December 13, 2013, when it emailed Doe a reminder of the stay-
away requirement. Doe clearly knew about the allegations
because he denied them when he yelled at Palacios in October
2013. Furthermore, the requirement is that notice simply
apprise Doe “ ‘of the pendency of the action.’ ” (USC, supra, 246
Cal.App.4th at p. 240, italics added.) Logically, Occidental was
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not obligated to provide Doe with formal notice before Roe even
filed the complaint against him that began the action.
Doe argues that Occidental violated the policy by failing to
“articulate the specific policy sections allegedly violated until
after PII’s investigation ended.” Review of the record reveals that
Occidental proceeded exactly as required by appendix A,
section (IV)(A), by sending Doe written notification “[a]t the
conclusion of [PII’s] investigation” that contained a “summary of
the conduct at issue and the specific provision of the policy
violation(s) that are alleged to have [occurred],” and listed the
alleged policy violations as “Sexual Assault” and “Non-
Consensual Sexual Contact,” along with their definitions. USC,
supra, 246 Cal.App.4th 221, cited by Doe is inapposite. In USC,
the administrative appeal absolved the student of the charges
alleged against him, but disciplined him for conduct of which he
had never received notice. (Id. at pp. 234–236.) In contrast,
Occidental did not engage in any “bait and switch.” Occidental
informed Doe of the sexual assault and non-consensual sexual
contact charges against him. Doe had a five hour hearing during
which he addressed the same allegations that were contained in
the notice and in the investigative report. The adjudicator found
that he had committed sexual misconduct as stated in the notice
and nothing different.
Doe next contends that Occidental violated its own policy
when it suspended him from campus in early February 2014,
before the investigation had begun, and “without [providing him]
any notice of the charges.” Again, Doe misstates the facts.
Occidental in fact did comply with the policy. Pursuant to
section VIII, subdivisions (A) and (B), Occidental sent Doe a
campus stay-away letter in October 2013. As Doe appeared to
17
violate that letter, Occidental sent him a reminder email in
December 2013. Then, following section VIII, subdivision (C),
which gives it authority in the face of an immediate threat of
harm to the safety or well-being of an individual, Occidental
placed Doe on interim suspension pending resolution of the
report. The record indicates not only that Doe violated the stay-
away letter, but also that Roe was concerned about his conduct
with other women and was afraid he would threaten her friends.
The notice also informed Doe that Roe had filed a complaint with
the Title IX office alleging an incident of sexual misconduct on
September 28 through 29, 2013; that Occidental was undertaking
an investigation; and that it had the discretion to place students
on interim suspension immediately and without prior notice.
B. No procedural unfairness
1. No prejudice by exceeding the 60-day guideline
for hearings
Doe contends that Occidental violated the policy’s provision
that “required it to resolve complaints within 60 days.” What the
policy actually states in section IX, subdivision (G), is that “[t]he
College seeks to resolve all reports within 60 days of the initial
report. All time frames expressed in this policy are meant to be
guidelines rather than rigid requirements. Extenuating
circumstances may arise that require the extension of time
frames, including extension beyond 60 days.” (Italics added.)
The policy provides an incomplete list of extenuating
circumstances. Although the record does not reveal an
explanation for why the 60-day guideline was exceeded here, Doe
fails to indicate how he was prejudiced by any delay. He argues
that as the result of the delay, the hearing was held the day after
summer recess began, which prevented witnesses from attending
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the hearing. However, six witnesses, including Doe’s two
roommates and his friend, testified either in person or by
telephone. Otherwise, Doe has not identified what witness the
scheduling prevented him from calling.
2. Doe had access to all of the evidence against
him
Doe contends Occidental violated its policy by failing to
provide him any evidence during the investigation, only allowing
him to view the investigative report and exhibits 10 days before
the hearing. The policy does not provide for distribution of
evidence during the investigation. Apart from the fact that Doe’s
receipt 10 days before the hearing exceeded the minimum of five
days that the policy does provide for (§ V, subd. (D)(5)), Doe never
claimed at the administrative level that the 10 days was
insufficient, and he never requested a continuance. More
important, Doe does not claim he was unprepared for the
hearing. Nor could he, because he retained counsel who
conducted its own investigation months before the hearing,
giving him ample time to prepare.
Next, Doe contends that the investigative report contained
only the initials of the witnesses rather than their full names,
and cites to a redacted version of the report submitted to the trial
court in connection with his petition for writ of mandate. There,
he alleged that “PII interviewed several additional student
witnesses whose names were redacted from the investigation
report and undisclosed to [Doe].”
Our review of the trial court and administrative record
reveals otherwise. According to the declaration of Ruth Jones,
Title IX coordinator, under penalty of perjury and attached to
Occidental’s sur reply to the writ petition, Occidental gave Doe
19
password-protected, electronic access to all of the hearing
documents, including the investigative report and supporting
witness interview summaries, with the full names of all
witnesses. Doe viewed the unredacted version in the
administrative record seven times between May 2, and May 10,
2014. Jones also declared, “At no point during the administrative
process did . . . Doe, his advisor, or his retained counsel advise my
office that . . . Doe was unaware of the identities of the
witnesses.” Doe did not include, as one of his numerous
objections to the process at the administrative hearing, the
objection that witnesses were only identified by initials. Nor did
Doe provide the trial court with a sworn counter-declaration to
that of Jones. Therefore, even if the investigative report he
received only contained witnesses’ initials, Doe failed to
demonstrate prejudice. Doe knew the names of all of the
witnesses.
3. The contention of adjudicator bias is forfeited
Doe dedicates much of his appeal to his contention that the
external adjudicator was “blatantly biased” in favor of Roe.
(Capitalization and boldface omitted.)
“A party seeking to show bias or prejudice on the part of an
administrative decision maker is required to prove the same ‘with
concrete facts: “ ‘[b]ias and prejudice are never implied and must
be established by clear averments.’ ” ’ ” (Nasha v. City of Los
Angeles (2004) 125 Cal.App.4th 470, 483.) But, “[w]hen a litigant
suspects bias on the part of a member of an administrative
hearing body, the issue must be raised in the first instance at the
hearing.” (Attard v. Board of Supervisors of Contra Costa County
(2017) 14 Cal.App.5th 1066, 1083.)
20
Here, Doe did not raise the issue of bias at the
administrative level or in the trial court. Doe’s first mention of
adjudicator bias is in his brief on appeal, in an apparent effort to
have us re-assess the credibility of the witnesses. We will not
consider the issue of bias raised for the first time on appeal; Doe
has forfeited the contention. (See Horn v. Atchison, T. & S. F. Ry.
Co. (1964) 61 Cal.2d 602, 610.)
III. No abuse of discretion in finding Doe violated the policy by
having nonconsensual sexual contact with Roe
Initially, Doe contends that we should independently
review the administrative decision because, he argues, it affects a
vested fundamental right. But, California cases reviewing
colleges’ disciplinary decisions concerning student sexual
misconduct have repeatedly applied the substantial evidence
standard because the decisions there “do not ‘ “involv[e] a
fundamental vested right.” ’ ” (CMC, supra, 25 Cal.App.5th at
p. 1065; USC, supra, 246 Cal.App.4th at pp. 239 & 238; Regents,
supra, 5 Cal.App.5th at p. 1073.) This makes sense where the
United States Supreme Court has recognized that among the
“ ‘ “ ‘four essential freedoms’ of a university [is the freedom] to
determine for itself . . . who may be admitted to study.” ’ ”
(Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716,
1726.) “ ‘ “Although a university must treat students fairly” ’ ”
(CMC, at p. 1066), its “main calling” is education and so “ ‘ “it is
not required to convert its classrooms into courtrooms.” ’ ” (Ibid.)
These California authorities, to which we are clearly bound,
distinguishes this case from the out-of-state cases cited by Doe.
(Furey v. Temple Univ. (E.D.Pa. 2012) 884 F.Supp.2d 223 [public
21
university]; Doe v. Rector & Visitors of George Mason University
(E.D.Va. 2016) 149 F.Supp.3d 602 [public university].)2
Our substantial evidence standard is extremely deferential.
(Regents, supra, 5 Cal.App.5th at p. 1073.) “ ‘[W]e do not “weigh
the evidence, consider the credibility of witnesses, or resolve
conflicts in the evidence or in the reasonable inferences that may
be drawn from it.” ’ [Citation.] ‘ “[The administrative agency’s]
findings come before us ‘with a strong presumption as to their
correctness and regularity.’ [Citation.] We do not substitute our
own judgment if the [agency’s] decision ‘ “ ‘is one which could
have been made by reasonable people. . . .’ [Citation.]” ’ ” ’
[Citation.] ‘Only if no reasonable person could reach the
conclusion reached by the administrative agency, based on the
entire record before it, will a court conclude that the agency’s
findings are not supported by substantial evidence.’ [Citations.]
[¶] We are required to accept all evidence which supports the
successful party, disregard the contrary evidence, and draw all
reasonable inferences to uphold the verdict. [Citation.]
Credibility is an issue of fact for the finder of fact to resolve
[citation], and the testimony of a single witness, even that of a
2 California courts are not bound by out-of-state cases.
(Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447, fn. 2)
Doe also cites Goss v. Lopez (1975) 419 U.S. 565 for this
proposition. The Supreme Court in Goss recognized that where
state law has created a student’s entitlement to a public
education, that entitlement constitutes a property interest that is
constitutionally protected. (Id. at pp. 573–574, 576.) But Goss
involved public secondary-school pupils, not private-college
students. (Ryan v. California Interscholastic Federation-San
Diego Section (2001) 94 Cal.App.4th 1048, 1062.)
22
party, is sufficient to provide substantial evidence to support a
finding of fact.” (Id. at pp. 1073–1074.)3
Viewing the entire record here, it supports the adjudicator’s
conclusion that Doe committed sexual assault and non-
consensual sexual contact on September 28 and 29, 2013. The
policy defines sexual assault as “[h]aving or
attempting . . . sexual intercourse with another individual:
[¶] By force or threat of force; [or] [¶] Without effective consent.”
Non-consensual sexual contact is defined in the policy as
“[h]aving sexual contact with another individual: [¶] By force or
threat of force; [or] [¶] without effective consent.”
Roe consistently stated in her interviews and to Langseth-
DePaolis, Lorenz, Palacios, and her three friends that she told
Doe she was a virgin and did not want to have sex with him.
Nonetheless, Doe penetrated Roe’s vagina numerous times with
his penis. Following the incident, Roe had a pregnancy test,
corroborating the fact that vaginal penetration occurred as she
alleged. Furthermore, Roe conveyed that she submitted to anal
sex because Doe attempted to restrict her from leaving his room
and he was verbally and physically aggressive toward her. Thus,
the anal sex occurred by force or threat of force, and without
effective consent. The second episode of non-consensual anal sex
occurred the next morning when Roe awoke to find Doe’s penis in
her anus. Roe’s account is sufficient to provide substantial
3 We note, even under the independent judgment standard,
“a trial court must afford a strong presumption of correctness
concerning the administrative findings, and the party challenging
the administrative decision bears the burden of convincing the
court that the administrative findings are contrary to the weight
of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805,
817.)
23
evidence to support a factual finding, and it was substantiated by
the other witnesses. (Regents, supra, 5 Cal.App.5th at p. 1074.)
To challenge the adjudicator’s findings, Doe argues “the
facts simply do not support a finding . . . [he] engaged in
nonconsensual sexual activity” because he consistently denied
Roe’s account, and because Roe’s testimony “downright
lack[ed] . . . credibility.” He lists evidence he claims the
adjudicator “ignored,” and other facts that support his version of
events to argue “it is plausible that Roe was mistaken about any
penetration occurring.” Doe’s argument—an attempt to reweigh
the evidence—is unavailing.
Recognizing that the parties’ testimony about whether Doe
penetrated Roe’s vagina or anus conflicted, and that the critical
issue was to determine whose version was more reliable, the
adjudicator listed the reasons she found Roe’s version to be more
persuasive: (1) Doe’s statements to others were consistent with
statements Roe attributed to him; (2) Doe made inconsistent
statements; (3) Roe’s reporting was consistent; (4) information
provided by Roe was corroborated by Doe; (5) Roe’s conduct was
consistent with vaginal penetration; (6) Doe’s testimony that the
absence of bruising requires a finding that no sexual assault
occurred; and (7) the inability of Doe’s witnesses to competently
testify to the events that occurred in Doe’s room. Thus, the result
here was predicated on credibility findings. Credibility is an
issue of fact for the adjudicator to resolve. The adjudicator gave
reasons for her conclusion that Roe’s account was more reliable.
We may not reassess that finding. (Regents, supra, 5 Cal.App.5th
at pp. 1073–1074.) Doe has demonstrated no error.
24
DISPOSITION
The judgment is affirmed. Occidental College is awarded
its costs on appeal.
DHANIDINA, J.
We concur:
EDMON, P. J.
MURILLO, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
25
Filed 7/24/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JOHN DOE, B282292
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BS150532)
v. CERTIFICATION AND
ORDER FOR PUBLICATION
OCCIDENTAL COLLEGE,
Defendant and Respondent.
The opinion in the above-entitled matter filed July 2, 2019,
was not certified for publication in the Official Reports. For good
cause it now appears that the opinion should be published in the
Official Reports and it is so ordered.
DHANIDINA, J. EDMON, P. J.