Opinion
B321883
01-16-2024
JOHN DOE, Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Respondent.
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and Appellant. Paul Hastings, George W. Abele and Emily Monroe for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STCP01310 Michael I. Levanas, Judge. Affirmed.
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and Appellant.
Paul Hastings, George W. Abele and Emily Monroe for Defendant and Respondent.
CURREY, P. J.
INTRODUCTION
This is the second writ of administrative mandate proceeding (Code Civ. Proc., § 1094.5) arising from John Doe's expulsion from the University of Southern California (USC) for engaging in nonconsensual sex with another former USC student, Jane Roe, in violation of USC's student conduct code.
All further undesignated statutory references are to the Code of Civil Procedure.
After he was initially expelled in 2016, Doe filed a petition for writ of administrative mandate challenging the investigation that led to his expulsion. (See John Doe v. Ainsley Carry, et al., LASC Case No. BS163736.) The trial court (Hon. Elizabeth White (Ret.)) granted the petition, concluding there was an unacceptable probability of bias against Doe by USC's then-Title IX investigators, and ordered USC to conduct a new, fair and impartial, investigation.
LASC Case No. BS163736 and the case underlying this appeal were ordered related.
USC then retained a third-party attorney investigator to conduct a new investigation. After a live hearing before a third-party adjudicator, USC again imposed the sanction of expulsion, based on the attorney investigator's report and the adjudicator's findings. Doe filed a second petition for writ of administrative mandate challenging the new investigation, which the trial court (Hon. Michael I. Levanas) denied. Doe appeals, contending reversal is required for three reasons: (1) he was denied a fair administrative hearing; (2) the adjudicator's findings were not supported by substantial evidence; and (3) the sanction of expulsion was an excessive abuse of discretion. For the reasons discussed below, we conclude Doe has not demonstrated any bias or procedural unfairness in the second investigation, the adjudicator's findings are supported by substantial evidence, and USC was well within its discretion in imposing the sanction of expulsion. We accordingly affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The substantive policies involving the conduct at issue are taken from the 2015-2016 student conduct code (i.e., the code in effect at the time of the incident). The procedural policies are taken from the 2019 student conduct code (i.e., the code in effect at the time of USC's second investigation, which is the subject of this appeal).
The USC student conduct code in effect at the time of the incident in question prohibited students from engaging in sexual misconduct, which it defined as "[s]exual activity and behavior which is non-consensual . . . whether the respondent is a stranger or an acquaintance of the complainant[.]" It also prohibited sexual assault, which includes, but is not limited to "sexual intercourse or sexual contact without consent." A sexual act is "non-consensual" where "[t]here is no affirmative, conscious and voluntary consent, or consent is not freely given" or "[p]hysical force, threats, coercion or intimidation are used to overpower or control another ...." "The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent."
Individuals are encouraged to report sexual misconduct or other prohibited conduct to USC's Title IX office. Upon receiving a report of sexual misconduct or other prohibited conduct, USC's Title IX office conducts an intake interview of the accuser or alleged victim. If USC decides to conduct a formal investigation, it provides written notice to the accuser and the accused student of the investigation and the alleged policy violations. USC also assigns a Title IX investigator to the matter, who gathers facts and interviews witnesses. Both parties are given an opportunity to provide relevant information and names of relevant witnesses. They are also given the opportunity to inspect documents and/or relevant information gathered during the investigation.
For students facing severe disciplinary sanctions (i.e., expulsion), where the credibility of witnesses is central to adjudication of the allegations, a live hearing is held before an adjudicator in which the parties "may indirectly cross-examine" each other and those witnesses whose credibility is central to the adjudication of the allegation. The adjudicator is an individual other than the assigned investigator or Title IX coordinator.
As discussed below, the parties were given an opportunity to submit questions for the adjudicator to ask any witnesses testifying at the hearing, both before and during the hearing.
At the conclusion of the live hearing, the adjudicator prepares a Summary Administrative Review (SAR), which presents and analyzes the information collected during the investigation and presented at the hearing, makes findings of fact using a preponderance of the evidence standard, and concludes whether the accused student violated USC's policies. If the adjudicator finds a policy was violated, the SAR is forwarded to the Misconduct Sanctioning Panel (MSP), comprised of one undergraduate student and two staff members designated by the provost and senior vice-president for academic affairs, to impose sanctions.
Either party may file a written appeal of the findings of the adjudicator or the MSP. The appellate panel is comprised of three individuals appointed by the vice-president for student affairs. The vice-president for student affairs has the discretion to accept, modify, or reject the appellate panel's recommendations and makes the final decision based on his or her review of the entire record of the case. Once the decision is made, both parties receive the final decision in writing simultaneously. Throughout the entire process, both the accuser and accused student are allowed to receive support and assistance from an advisor of their choice, who could be an attorney.
B. The October 14, 2015 Incident and Roe's Report
Doe and Roe met during a study abroad program through USC in the summer of 2015, and began dating in the fall of that year. Roe would sleep over at Doe's residence and they would engage in consensual sexual touching, but not sexual intercourse. Doe was aware that Roe had never had sexual intercourse before the date of the incident.
On January 28, 2016, Roe made a report of sexual misconduct to USC's Title IX office, and met with the Title IX investigator assigned to the investigation. Roe reported that on October 14, 2015, beginning at 11:52 p.m., Doe and Roe exchanged a series of text messages. Doe sent Roe a text message asking her to sleep over in his room at his fraternity house. After Roe responded she would come over, Doe texted, "I'm kinda drunk but super happy you're coming." When Roe asked how drunk, he responded, "6/10?" Roe stated, "I'm not tryna be a bootycall," to which Doe responded "You're a cuddlecall." Roe reported that to her, "cuddlecall" conveyed they "'would not be engaging in anything sexual.'"
When Roe arrived, she noticed Doe was drunk. She recalled mutual kissing and removal of their clothes. Then, Doe got lubrication, jumped on Roe, and said "'we're going to do this tonight.'" He then started to insert his penis into her vagina. Roe reported she said "'No, not right now. Not tonight.'" She told Doe "no" between 10 and 15 times. Doe responded with comments like "'oh, you're such a tease'" or "'it will be like ripping off the band aid.'" Roe tried pushing him off of her. Doe was really aggressive, resulting in bruises all over Roe's genital area the next morning. After repeated attempts to get Doe off of her, which lasted about 45 minutes, Doe got off of Roe and told her to get out of his room. Roe then wrote on Doe's whiteboard "You better have a great apology for this" and left Doe's room, crying.
The next morning, Doe texted Roe asking: "Did you leave last night? Did I black out? So many questions." Roe responded: "Yes to both." Doe replied, in part: "I just saw your note [on the whiteboard]. I have no idea what I did but I'm sorry and I bet you have a good reason to be upset." Roe responded: "You asked me to come over and cuddle and I went. It was clear all you wanted was to have sex and you wouldn't stop until you did, which was really uncomfortable for me and also unwanted. And even though I audibly said things like stop and no, you kept persisting. I had to physically push you off of me multiple times because you wouldn't stop on your own. In addition to being forceful, you also tried to guilt trip me into feeling bad and having sex. I shouldn't have to give reasons for my decisions. You should respect my reasoning even if you don't agree with it or if it doesn't match yours. And after all this you refused to talk to me. And then you told me to go away. And then I did. It sucks to feel taken advantage of."
Over the course of the day, Doe sent Roe several text messages, including one text in which he made the following statements: "I clearly made a mistake and should [sic] known better," "I don't know why drunk/asleep me was so rude to you afterwards but I'm so sorry about it," and "[p]hysically I may have crossed a line...."
That same day, Roe sent a text message to her friend, J.K., stating, "Unwanted sex occurred last night and I feel so shifty [sic] and I have bruises all over my private parts and I can't even walk or sit everything hurts." She also texted J.K that Doe "was also really drunk" and he "really wanted to have sex yesterday[,] and I didn't and he was persistent and aggressive for like two hours and I just kept pushing him off of me and telling him to stop."
After the incident, Roe continued to date Doe for several more weeks before they broke up. Roe explained that, after the incident, she knew something had happened, but it took her going home for winter break and reflecting on that night to fully realize it was rape. This realization led her to file a report.
C. Notice and First Investigation
On March 22, 2016, USC notified Doe that a report had been received that he allegedly violated USC Student Conduct Code section 11.53.C ("Engaging in any actual or attempted non-consensual physical sexual act including, but not limited to vaginal, oral or anal penetration using a body part or object.") Roe's report was investigated by then-USC Title IX investigator Patrick Noonan, and overseen by then-Title IX coordinator, Gretchen Dahlinger Means. USC expelled Doe in June 2016.
Doe filed a petition for writ of administrative mandate in the Los Angeles County Superior Court (John Doe v. Ainsley Carry, et al., LASC Case No. BS163736) challenging the investigation that led to his expulsion. On December 20, 2017, the trial court (Hon. Elizabeth White (Ret.)) granted the petition, finding there was an unacceptable probability of bias against Doe by Mr. Noonan and Ms. Means. The court explained: "USC's Title IX Office is the actual entity that rendered the determination against [Doe], and the office was improperly biased against [Doe] and in favor of Roe. Additionally, Title IX Coordinator Means held an adversarial position in relation to [Doe], rendering her advisory role with the purportedly neutral Student Equity Review Panel . . . improper." The court further stated: "In this case, the review panel did not issue any rationale for 'its' determination and, instead, summarily adopted the findings of the Title IX investigator. [Citation.] Further eroding USC's attempt to portray the review panel as an independent decisionmaking body is the student conduct code provision mandating that the review panel 'will be advised by the Title IX Coordinator, who is present during the [review panel's] deliberations.' [Citation.] In sum, the panel is merely a proxy for the Title IX Office, which actually rendered the underlying decision. Against this background, it is clear that the determination in the instant case was the product of a biased adjudicator, as Title IX Investigator Noonan's and Title IX Coordinator Means' comments against [Doe]- referring to him as a 'motherfucker'-and in favor of Roe-described as a 'catch'-amply demonstrate an unacceptable probability of actual bias." (Original italics.) The court, therefore, ordered USC to conduct a new fair and impartial investigation.
As stated in the trial court's order granting the petition, at the end of a conference call in which Means and Noonan communicated their findings to Doe, neither party terminated the phone call, and "Means and Noonan engaged in a colloquy in which Means asked, 'Who do those motherfuckers think they are?' and, 'Does that college motherfucker know who I am?' [Citation.] Both Noonan and Means referred to [Doe] as 'motherfuckers.' [Citation.] Noonan and Means also described Roe as 'a catch' and expressed, '[She is] so cute and intelligent. What was she doing with that (referencing [Doe])?'"
D. Second Investigation
In May 2018, USC retained an outside attorney, Nancy Hasani, Esq., to conduct a new investigation of Roe's 2016 report of sexual assault. Ms. Hasani began by re-interviewing Roe on June 19, 2018. During that interview, Roe explained the statement she gave in January 2016 would be the most accurate reflection of what occurred, given she tried to block out the incident from her memory. Ms. Hasani then obtained a copy of the January 2016 interview notes and met with Roe again on July 10, 2018 to review them in detail. Ms. Hasani went through the notes line-by-line, asking Roe if the notes were accurate and whether there was anything different she wanted to add or change. Roe did not change anything, but added a few details and clarifications.
The notes of Roe's initial report were taken by Title IX Investigator Kagen Allee. There was no claim of bias against Allee in the first writ proceeding.
On April 10, 2019, Ms. Hasani interviewed Doe. In describing the incident, Doe recounted the following. He was drinking alcohol before he texted Roe to come over that night. He was "buzzed" but [with respect to his level of intoxication] "it was hard to rate these things." When Roe came over, they started cuddling, kissing, and touching each other's bodies. Roe then agreed to have sex with Doe, and Doe got lubricant. Doe applied the lubricant to both of them, and he got on top of her. When Doe tried to penetrate Roe with his penis, she said "ouch" a few times so he would "release pressure and stop trying to penetrate her with his penis and reset." This process of "attempted penetration" lasted about 10 to 15 minutes. Ultimately, they stopped when Roe said "'let's stop.'"
The witness interview summary indicates Ms. Hasani exchanged multiple calls and letters with Doe's counsel between June 2018 and April 2019 requesting an interview with Doe. Doe's counsel ultimately agreed to have Ms. Hasani interview Doe (with counsel present) in April 2019.
After the incident, they continued to date until around midNovember 2015. During that time, Roe and Doe had consensual sex one time. According to Doe, Roe broke up with him after seeing a picture on Instagram of Doe on a date with another woman.
Doe further relayed that over winter break, in late December 2015 and early January 2016, Roe started messaging him on Facebook. In those messages, Roe started alleging she considered the incident rape and she was very angry with him. Doe became terrified at that point because he "totally disagreed" with her assertion. Doe relayed that "on the one hand [Roe] was saying they could date and then on the other hand was saying she could ruin his life." He wanted to "amend his friendship with her . . . [h]owever, she was threatening him over and over." When Doe returned to school from winter break, Roe sent him an email indicating she was filing her sexual assault claim with USC's Title IX office.
In addition to Doe and Roe, Ms. Hasani interviewed nine student witnesses, including J.K. She also contacted nine other witnesses, but they either did not respond or declined to participate in the investigation. This included J.S., Doe's roommate at the time of the incident who, according to Roe, witnessed her leaving Doe's room the night of the incident. J.S. did not respond to Ms. Hasani's multiple attempts to reach him by email, phone, and letter, however.
Ms. Hasani prepared a 44-page summary of her investigation, detailing the allegations, the investigative timeline, the parties' descriptions of the incident and the weeks following the incident, and a summary of the evidence. She also prepared an evidence review packet, which included documents she collected from the parties and witnesses, and detailed witness interview summaries. She then emailed Doe's counsel and Roe to inform them she had compiled the evidence for their review before the live hearing. The emails explained each party would have access to the documents for 48 hours on a secure document sharing website called "One Hub." Ms. Hasani encouraged the parties to take notes during the review because they would not be able to download or print any of the documents. She informed the parties, however, that if they needed additional time to review the evidence, an extension could be requested. No extension was requested.
On July 25, 2019, Doe and his counsel viewed documents on One Hub. At the close of the review period, Ms. Hasani emailed Doe's counsel informing him that the period to review evidence had expired, but if more time was needed to review the documents, Doe's counsel should let her know. Again, no extension was requested.
Ms. Hasani also sent Doe's counsel USC's policy on submitting questions in a Title IX investigation, and explained Doe "now [had] the opportunity to submit written questions for the reporting party and any witnesses" during the live hearing. The policy states that "the adjudicator will ask each party and any witnesses called questions that have been submitted by the parties[,]" but the adjudicator "has the responsibility to exclude questions that are inflammatory, argumentative, or relate to character evidence or non-relevant sexual history." Doe submitted 49 questions (with additional sub-questions) for Roe.
E. Live Hearing
USC conducted a live hearing on October 24, 2019. It retained Liz Paris, Esq., as the outside adjudicator to preside over the hearing, which was administrated by JAMS. In advance of the hearing, Ms. Paris reviewed Ms. Hasani's summary of the investigation and evidence review packet, USC's 2015 and 2019 student conduct codes, and the questions submitted for the hearing by Doe (Roe did not submit questions).
Ms. Paris requested testimony from Roe, Doe, and J.S. (Doe's former roommate and former USC student) at the hearing. Ms. Hasani attempted to contact J.S. again by email and letter to inform him the adjudicator requested him to attend the live hearing. Although J.S. eventually agreed to meet with Ms. Hasani, he ultimately canceled the interview before the scheduled date and declined to participate in the live hearing.
Roe and Doe testified at the hearing. They both had access to the evidence on One Hub during the hearing. Ms. Paris asked Doe 39 of the 57 questions submitted by Doe. She excluded the remaining questions as not probative of the issues in dispute. Ms. Paris questioned Doe for approximately the same amount of time as she questioned Roe. Doe then provided a closing statement and the hearing concluded.
Although Doe initially submitted 49 questions for Roe, Ms. Paris indicated during the hearing that she received a total of 57 questions from Doe.
After the hearing, Ms. Paris issued a 12-page SAR based on the testimony provided during the live hearing and the evidence submitted to her from Ms. Hasani's investigation. Ms. Paris concluded, based on the preponderance of the evidence standard, that Doe penetrated Roe's vagina with his penis while in his room at his fraternity house on October 14, 2015, and Doe did not have Roe's consent to do so. She noted that the parties agree there was "at least a minimal amount of vaginal penetration with [Doe's] penis." She further concluded Doe's belief that Roe provided consent for sexual intercourse arose from Doe's intoxication.
Ms. Paris primarily based her findings on the text messages exchanged between the parties on the day immediately following the incident (October 15, 2015). She explained the "record does not support that [Roe] was driven by a motive to fabricate her allegations against [Doe]" based on either unhappiness in her own life or due to Doe's unwillingness to explore a romantic relationship with her again because "these arguments do not account for the text message exchanged on October 15, 2015, in which [Roe] clearly alleged [Doe] had non-consensual sexual intercourse with her." She also found Doe's assertion that his memory was limited as to certain details but clear and precise about other details "lessened his credibility overall." Based on her findings, Ms. Paris concluded Doe engaged in sexual assault as defined by the 2015 student code of conduct.
F. USC's Misconduct Sanctioning Panel and Doe's Appeal
After notice to the parties of Ms. Paris's findings, the SAR and Ms. Hasani's investigative summary were forwarded to the MSP. The MSP discussed intent and maliciousness "at length" and concluded it did not appear that Doe intended to harm Roe, but rather he was "reckless/careless in his alcohol consumption[ ]" and forced himself on Roe despite her verbal opposition. It observed, however, that USC's student conduct code "does not address intent to harm or require 'maliciousness' in a sexual assault - rather only that [Doe] engage[d] in conduct without the affirmative consent of the party, as was the case here." The MSP also analyzed aggravating and mitigating factors. While the MSP found Doe's remorse was a mitigating factor, it found the consistent effort it took Roe to physically get Doe to stop, and the bruises the following day, to be aggravating factors. The MSP ultimately recommended expulsion based on its analysis of the aggravating and mitigating factors, and USC's zero-tolerance approach to sexual assault.
Doe appealed to an appellate panel, which concluded substantial evidence supported the adjudicator's findings, the sanction imposed was not disproportionate to the violation found, and USC did not deviate from the process set forth in the applicable policies. The panel, therefore, recommended that the vice president of student affairs affirm the conclusions reached by the adjudicator and the sanctions recommended by the MSP. On February 20, 2020, the vice president of student affairs approved the sanction of expulsion.
G. Writ Proceedings in the Trial Court
On April 9, 2020, Doe filed a Code of Civil Procedure section 1094.5 petition for writ of mandate, contending the second investigation was procedurally unfair, the adjudicator's findings were not supported by substantial evidence, and the expulsion sanction was an abuse of discretion. The petition was denied, and this appeal followed entry of judgment.
DISCUSSION
1. Writ of Administrative Review
"A writ of administrative review brought pursuant to section 1094.5 allows for judicial review of quasi judicial decisions that are made 'as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.' (§ 1094.5, subd. (a).)." (Boermeester v. Carry (2023) 15 Cal.5th 72, 85 (Boermeester).) Section 1094.5 applies to a private university's disciplinary decisions. (Boermeester, at p. 86.) As relevant here, judicial review is limited to whether there was a fair trial and whether there was any prejudicial abuse of discretion. (§ 1094.5, subd. (b).) "The scope of our review from a judgment on a petition for writ of mandate is the same as that of the trial court." (Department of Corrections &Rehabilitation v. State Personnel Bd. (2015) 238 Cal.App.4th 710, 716.)
"'"A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law. "'" (Boermeester, supra, 15 Cal.5th at p. 85.) "[T]hough the fair procedure doctrine requires adequate notice of the charges and a reasonable opportunity to respond," in this context, we must "give private universities primary responsibility for crafting the precise procedures meant to afford a student with notice and an opportunity to respond." (Id. at p. 90.) "Private universities generally know best how to manage their own operations, and requiring a fixed set of procedures they must utilize in every situation when determining student discipline would constitute an improper '"intrusion into the[ir] internal affairs. "'" (Ibid.)
Doe's substantive challenges to the adjudicator's findings after the live hearing are reviewed for substantial evidence. (§ 1094.5, subd. (c) ["abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record"].)
In cases involving a vested fundamental right, the court exercises its "independent judgment" and abuse of discretion is established "if the court determines that the findings are not supported by the weight of the evidence." (§ 1094.5, subd. (c).) At oral argument, Doe argued, for the first time, his expulsion affected his vested fundamental rights. We need not address this contention because Doe did not raise it in his appellate briefs. (See Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1027 fn. 2 ["We need not consider an argument not mentioned in the briefs and raised for the first time at oral argument."].) In any event, "California cases reviewing college' 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.''" (Doe v. Occidental College (2019) 37 Cal.App.5th 1003, 1019.) Alternatively, relying on Boermeester, supra, 15 Cal.5th 72, Doe argues that because USC is a private entity, USC's factual findings should be reviewed under an independent judgment standard, even in the absence of a substantial effect on any vested fundamental right. But nothing in Boermeester suggests that private universities are entitled to less deference than public universities. Rather, Boermeester held private universities have primary responsibility for developing their disciplinary procedures because "requiring a fixed set of procedures they must utilize . . . would constitute an improper 'intrusion into the[ir] internal affairs.'" (Boermeester, supra, 15 Cal.5th at p. 90.)
2. Fair Hearing
Doe contends he was denied a fair hearing on the following grounds: (1) the adjudicator was biased; (2) he was denied the purported right to cross-examination; (3) he was prejudiced by the passage of time; and (4) he was denied access to the evidence. For the reasons discussed below, we are unpersuaded.
A. Bias
A fair hearing requires that the "decision maker is free of bias for or against a party." (Morongo Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737.) "Unless they have a financial interest in the outcome [citation], adjudicators are presumed to be impartial." (Ibid.) "[T]he presumption of impartiality can be overcome only by specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias." (Id. at p. 741.)
Doe offers several theories in support of his argument that Ms. Paris was biased, none of which has merit. Initially, Doe argues Ms. Paris had a financial interest in the outcome of the matter because she was hired by USC, and she has an interest in being re-hired by USC. The only way to ensure she gets re-hired, according to Doe, is by "find[ing] in favor of the University." But USC did not retain Ms. Paris to find in favor of, or against, USC. Rather, she was retained to make factual findings and conclusions regarding whether the accused student violated one or more of USC's policies. Doe provides no evidence demonstrating third-party adjudicators are paid differently (or only re-hired) based on whether they find in favor of the accused or the accuser. The record, therefore, contains no evidence that Ms. Paris had a financial interest in the outcome of the matter.
Next, Doe argues even if Ms. Paris did not have a financial interest in the outcome, specific evidence in the record demonstrates actual bias. The evidence he relies on, however, misstates the record and/or does not demonstrate bias.
First, Doe contends Roe was permitted to rely solely on the interview notes from the first investigation in 2016, yet he was not permitted to rely on his initial statement from 2016. But Doe fails to cite any evidence in the record showing he attempted to rely on statements he made in 2016, but was not permitted to do so. Moreover, Roe did not rely solely on her notes from the 2016 investigation. At the live hearing, Roe testified (without reference to the 2016 notes) that Doe penetrated her with his penis more than once without a condom, it was not consensual, and Doe was drunk. Roe's reliance on the 2016 interview notes in response to some of Ms. Paris's questions at the live hearing in no way demonstrates "actual bias" on the part of Ms. Paris.
Second, Doe asserts Ms. Paris "helped" Roe answer questions in a way that would support the final decision. Doe provides only two examples from the live hearing. At one point during the live hearing, Ms. Paris asked Roe: "Was there ever a point where [Doe] started to penetrate you and you told him, 'Stop. That hurts.'" Roe responded: "I believe so. Yes, that night." Later in the hearing, Ms. Paris asked: "You had referenced just some bruising or tenderness after October 14th. Was there any bleeding after that incident?" Roe responded that she did not remember. Even assuming the questions are leading, neither of these isolated instances demonstrates actual bias.
Third, Ms. Paris purportedly exhibited bias by mischaracterizing the record regarding her opinion of Doe's level of intoxication. In support of this argument, Doe essentially argues substantial evidence does not support Ms. Paris's finding that the record supports Doe "was more intoxicated than he originally described ...." We reject Doe's attempt to conflate the issues of bias and substantial evidence. We instead address the separate issue of substantial evidence below in section 3.
Finally, Doe takes issue with the number of witnesses interviewed during the investigation and that no third-party witnesses testified at the live hearing. Regarding the witnesses interviewed, Doe asserts, without citation to the record, that Ms. Hasani interviewed "[Roe's] witnesses and not witnesses requested by [Doe]." But he fails to identify a single witness that he proposed and Ms. Hasani declined to contact. With respect to third-party witness testimony at the live hearing, the record demonstrates Ms. Paris did, indeed, request testimony at the live hearing from J.S. (Doe's former roommate at USC). J.S. declined to participate, however, and she lacked power to compel his attendance. (See Boermeester, supra, 15 Cal.5th at p. 94 [private universities lack subpoena power].) And, more importantly, even if Ms. Paris only requested live testimony from Doe and Roe, nothing in the record suggests that decision was a result of actual bias against Doe. (See id. at p. 76 [private universities have "broad discretion in formulating their disciplinary processes"].)
The notes of Doe's interview with Ms. Hasani indicate Doe's only proposed witness was J.S., who, as discussed above, did not respond to Ms. Hasani's multiple attempts to contact him.
In sum, we conclude the record contains no evidence of a financial interest in the outcome of the matter; and thus, Ms. Paris is presumed to be impartial. We further conclude that because the record is also devoid of evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias, Doe has not overcome the presumption of impartiality.
We also reject Doe's argument that USC failed to abide by its own policy that requires the accused to be "presumed not responsible" because USC "presumed that [Roe] was telling the truth and [Doe] was responsible, requiring him to prove otherwise." Nothing in the record supports this assertion. Indeed, the SAR states the applicable standard is preponderance of the evidence, and Ms. Paris informed the parties of the standard during the live hearing: "The standard by which I analyze the evidence and make my decision is by the preponderance of the evidence[, which means] it is more likely than not that a violation of policy occurred, based on all the relevant information that is provided."
B. Cross-Examination
Doe next contends that requiring him to submit his questions to the adjudicator for cross-examination of Roe before the live hearing deprived him of "true cross-examination" and was fundamentally unfair. He also argues he was deprived of the opportunity to cross-examine other witnesses because those witnesses did not testify at the live hearing. As discussed below, however, there is no absolute right to cross-examination in administrative proceedings.
Our Supreme Court recently held that fair procedure does not require "private universities to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually." (Boermeester, supra, 15 Cal.5th at p. 92.) The Boermeester court explained: "Requiring live hearings featuring real-time cross-examination of witnesses in the accused student's presence would be contrary to our prior conclusion that 'fair procedure does not compel formal proceedings with all the embellishments of a court trial.' [Citation.] It would also be contrary to our admonition that courts must refrain from fixing rigid trial-like procedures 'that must invariably be observed.'" (Id. at pp. 92-93.) It recognized that "[w]hile live adversarial questioning may be considered essential in the context of a criminal trial[,]" "[p]rivate universities are ill equipped to function as courts because they lack subpoena power to force key witnesses to attend a hearing and be subject to crossexamination. They must instead rely on the voluntary participation of witnesses, which may prove more likely when the disciplinary process allows witnesses to testify outside of the context of a live hearing and outside the accused student's presence." (Id. at pp. 93-94.) "Simply put, the '"procedures for dismissing college students [are] not analogous to criminal proceedings and could not be so without at the same time being both impractical and detrimental to the educational atmosphere and functions of a university."'" (Id. at p. 94)
The Boermeester court disapproved of Doe v. Allee (2019) 30 Cal.App.5th 1036 to the extent it is inconsistent with its opinion. (Boermeester, supra, 15 Cal.5th at pp. 95-96.)
The Boermeester court also noted the "Legislature recently enacted legislation [Senate Bill No. 493 (2019-2020 Reg. Sess.] setting forth the precise procedures it felt were necessary to ensure fairness to both the accused student and the accuser." (Boermeester at p. 90.) Like in Boermeester, Senate Bill 493 (2019-2020 Reg. Sess.) does not apply here since the incident and USC's investigation and live hearing occurred prior to Senate Bill 493's effective date of January 1, 2021. (Stats. 2020, ch. 303.) The court in Boermeester, however, found it "noteworthy that the statute does not require universities to conduct live hearings featuring cross-examination of the accuser and other witnesses." (Id. at p. 91.) Rather, under Senate Bill 493, "universities are left to determine for themselves whether to conduct a hearing, how to format it, and what rules govern it." (Ibid.)
Here, USC provided Doe with greater procedural safeguards than those required under Boermeester. (See Boermeester, supra, 15 Cal.5th at p. 90 [the fair procedure doctrine requires only adequate notice of the charges and a reasonable opportunity to respond, and private universities are given the "primary responsibility for crafting the precise procedures meant to afford a student with notice and an opportunity to respond"].) As detailed above, USC provided Doe with notice of the allegations; the opportunity to provide his version of events in his interview with the third-party attorney investigator; the opportunity to review the evidence with his attorney-advisor; the opportunity to submit his own evidence and the names of potential witnesses to Ms. Hasani; a live hearing with Roe in attendance; the opportunity to submit questions for the adjudicator to ask Roe during the live hearing; and the opportunity to appeal the MSP's decision to the appellate panel. USC was not required to have gone further either by permitting Doe to "ask [Roe] questions in real time" or by providing Doe an opportunity to cross-examine witnesses at the live hearing who provided witness statements during the investigation.
C. Passage of Time
Doe further argues he was substantially prejudiced by the four-year delay between the alleged incident and the investigation.
The trial court in the first writ of administrative mandate proceeding entered judgment in favor of Doe on March 19, 2018. As discussed above, USC retained Ms. Hasani to conduct a new investigation of Roe's 2016 report in May 2018, and it conducted the live hearing in October 2019.
In September 2018, Doe's counsel sent USC a cease-and-desist letter demanding it stop the second investigation, and subsequently filed in the trial court an unsuccessful order to show cause re: contempt. Thus, much of the delay between the conclusion of the first writ proceeding and the conclusion of the second investigation was due to the actions of Doe, not USC. We therefore conclude Doe has not shown USC unreasonably delayed the second investigation.
D. Access to Evidence
Doe lastly contends USC did not provide a fair hearing because he was denied a meaningful opportunity to review the evidence that was provided through One Hub. Without citation to authority, Doe claims the "substandard review" of documents permitted by USC cannot be considered "access to the evidence." We are unconvinced.
As discussed above, both parties were given equal access to the documents through One Hub. Doe and his attorney-advisor reviewed the evidence during the two-day evidence review period. Ms. Hasani twice informed the parties they could request additional time to review the documents-once in the initial email scheduling the evidence review and again when the period to review evidence had expired-but Doe did not request an extension. Doe then formulated 57 questions for Roe based on his access to the evidence.
Accordingly, we conclude Doe was given a "reasonable opportunity to respond" to Roe's allegations. (See Boermeester, supra, 15 Cal.5th at p. 90 [private universities are given "primary responsibility for crafting the precise procedures meant to afford a student with notice and an opportunity to respond"].)
3. Substantial Evidence
Doe alternatively contends substantial evidence does not support the adjudicator's findings. Again, we disagree.
Substantial evidence review is "extremely deferential." (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 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.'" (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1492.) "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." (Id. at p. 1490.)
In challenging the adjudicator's findings as unsupported by substantial evidence, Doe argues Ms. Paris's finding regarding his level of intoxication (i.e., Doe's belief that Roe consented to sexual intercourse arose from his intoxication) was "based upon her inability to explain why [Doe] did not remember the incident in the way [Roe] did[ ]" and "was based upon her presumptions and suppositions [ ]." But the SAR clearly identifies the evidence on which Ms. Paris's finding was based. Specifically, regarding Doe's level of intoxication, Ms. Paris relied on the text messages exchanged the day after the incident: "[Doe's] first message to [Roe] was to question whether he blacked out. On the one hand, [during the hearing Doe] denied blacking out and provided an explanation for his statements and admissions. In contrast, the documentary evidence, statements made during the investigation and during the live hearing call [Doe's] version of events into question." The SAR further explains: "[Roe] discussed [Doe] being drunk and his lack of memory in her investigative interviews, in messages with [Doe], and at the live hearing ....[Roe's] adherence to her original assertions gave additional weight to her credibility." Moreover, in the text messages exchanged between Doe and Roe the night of the incident, Doe admitted that he was "kinda drunk" and rated his level of intoxication as a "6/10[.]" Thus, based on documentary evidence and her credibility findings, which we will not disturb, Ms. Paris concluded "[i]t is more likely that [Doe] was intoxicated and did not remember engaging in some of the conduct alleged by [Roe]."
Doe next argues Ms. Paris's findings regarding consent (i.e., that Doe did not have Roe's consent, and Doe's belief he had consent for sexual intercourse arose from his intoxication) are not supported by the evidence. In support of this argument, Doe claims he consistently advised Roe he believed she was consenting, and he presented evidence to support this reasonable belief, including the touching, kissing, and use of lubrication.
Doe's arguments disregard the standard of review. As discussed above, we do not reweigh the evidence nor substitute our own credibility determinations for those of the adjudicator. (Do v. Regents of University of California, supra, 216 Cal.App.4th at p. 1492; see also Doe v. Regents of University, supra, 5 Cal.App.5th at p. 1074 ["We are required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the [findings]" and "the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact"].)
The record contains sufficient evidence to support Ms. Paris's findings. As Ms. Paris observed, in the text messages exchanged between the parties the morning after the incident, Roe stated Doe had "unwanted" sex with her, that she had to physically push him off her, and that Doe told her to leave. Ms. Paris found the text messages "provide compelling, close-in-time corroboration of [Roe's] allegations." Ms. Paris also considered Doe's arguments made at the hearing-that in responding to Roe's text messages, "he was initially confused as to what [Roe] was talking about, and then he attempted to comfort her and diffuse the situation[ ]" but ultimately "found these arguments less persuasive than the documentary record, which support[s] [Roe's] allegations."
On this record, we cannot conclude that "no reasonable person" could reach the same findings as the adjudicator. (Do v. Regents of University of California, supra, 216 Cal.App.4th at p. 1490.) Substantial evidence, therefore, supports the adjudicator's conclusion that Doe's conduct violated USC's policies. (Ibid.)
4. Sanction of Expulsion
"We review the penalty imposed by an administrative body for an abuse of discretion. [Citation.] This court cannot 'substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.' [Citation.] Moreover, '[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.'" (Doe v. Regents of University of California, supra, 5 Cal.App.5th at p. 1106.)
Doe argues USC abused its discretion by expelling him when there was no evidence he was a danger to the USC community generally, or to Roe, specifically, who had since graduated from USC at the time Doe was expelled. But even assuming Doe is not presently a threat to Roe or the USC community, he has not shown USC abused its discretion by expelling him.
As discussed above, the MSP reviewed the adjudicator's findings (which we have concluded are supported by substantial evidence) and determined the "extensive text . . . messages between the parties" constitute "strong evidentiary support" for the adjudicator's findings. While the MSP found Doe's remorse was a mitigating factor, it found the consistent effort it took Roe to physically get Doe to stop, and the bruises the following day, to be aggravating factors. The MSP acknowledged the record indicates Doe did not intend to harm Roe, but explained USC's student conduct code does not "require 'maliciousness' in a sexual assault - rather only that [Doe] engage in conduct without the affirmative consent of the party, as was the case here." It further noted USC "want[s] to be clear to the community that violations of [its] policy have consequences and that USC has a zero tolerance approach to sexual assault." The MSP, therefore, recommended the sanction of expulsion. Doe has not shown that vaginal penetration without consent, in violation of USC's policy, cannot support a decision to expel a student. We therefore discern no abuse of discretion.
DISPOSITION
The judgment is affirmed. USC is awarded its costs on appeal.
WE CONCUR: COLLINS, J., BAKER, J. [*]
[*] Justice of the Court of Appeal, Second Appellate District, Division Five, assigned to Division Four, by the Chief Justice pursuant to article VI, section 6 of the California Constitution.