John Doe vs. Gilbert Fugitt

Motion to Strike

Cal. Super. - 4th Dist.April 24, 2017

© O 0 0 N N O O U 1 B A W w W N D R N O N N N D N N N D N M N N F P F F P FP F F P F P FP F F P P = c o ~ N o o u o A W N F P O V U 0 0 N o U U BE E W N + , O o MARK M.HATHAWAY (CA 151332; DC 437335; IL 6327924; NY 2431682) JENNA E. PARKER (CA 303560) WERKSMAN JACKSON HATHAWAY & QUINNLLP 888 W est Sixth Street, Fourth Floor Los Angeles, California 90017 Telephone: (213) 688-0460 Facsimile: (213) 624-1942 E-Mail: mhathaway@ werksmanjackson.com E-Mail: jenna@ werksmanjackson.com Attorneys for Petitioner John Doe SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER JOHN DOE, an individual, Case No.: 30-2017-00916260-CU-WM-CJC Petitioner, [Hon. Walter P. Schwarm, Department C-19] V. PETITIONER'S NOTICE OF MOTION AND MOTION TO STRIKE GILBERT FUGITT, Ed.D., an individual in IRRELEVANT MATERIAL FROM his official capacity as Dean of Students; RESPONDENT'S OPPOSITION BRIEF BRIANNA MONTGOMERY, an individual in her official capacity as Associate Dean of Date: October 23, 2018 Residential Education and Services; Time: 1:30 p.m. CONCORDIA UNIVERSITY, aCalifornia Dept: C19 corporation; and DOES 1 to 20 inclusive, [Filed with Petitioner's Objection To Respondents. Respondent's Request For Judicial Notice] TOALL PARTIESAND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 23, 2018 at 1:30 p.m. in Dept. C19 of the above entitled court, Petitioner will, and hereby, move pursuant to Code Civ. Proc. §§ 435, and 436 to strike all portions of Concordia University’s Brief in Opposition to Petitioner for Writ of Administrative M andate that discuss or mention matters set forth in Respondent Concordia University's improper Request for Judicial Notice In Support of Brief in Opposition To Petition for Writ of Administrative M andate. The motion will be based upon this Notice, the attached M emorandum of Points and A uthorities, PETITIONER'S OBJECTION TO REQUEST FOR JUDICIAL NOTICE AND MOTION TO STRIKE 1 O © 0 0 ~ N O O U 1 B A W w W N O P N O N N N D N N N D N N N F P F F P FP F F P F P F P F P F P c o d N o o u t A W w W N N F P O O O U 0 0 u N o O o U U ~ ~ W w N N 2 o O o Petitioner's Objections to Respondent's Request for Judicial Notice, filed concurrently, the argumentsof counsel and the records and files in this action. WERKSMAN JACKSON HATHAWAY & QUINN LLP Dated: October 16, 2018 By. fr7&.*%7/ MARK M.HATH JENNA E. PARKER Attorneys for Petitioner PETITIONER'S OBJECTION TO REQUEST FOR JUDICIAL NOTICE AND MOTION TO STRIKE 2 © O 0 0 N N O O U 1 B A W w W N D R N O N N N D N N N D N M N N F P F F P FP F F P F P FP F F P P = c o ~ N o o u o A W N F P O V U 0 0 N o U U BE E W N + , O o MEMORANDUM OF POINTS AND AUTHORITIES I. THE COURT SHOULD STRIKE IRRELEVANT PORTIONS OF RESPONDENT'S BRIEF. Code Civ. Proc. § 436 provides that the court may “(s)trike out any irrelevant, false, or improper matter inserted in any pleading” or it may “(s)trike out all or any part of any pleading not drawn or filed in conformity with the laws ofthis state, a court rule, or an order of the court.” The Court should exercise discretion to strike out those portions of Concordia University’s Brief in Opposition to Petitioner for Writ of Administrative Mandate that relied upon the irrelevant material for which judicial notice was sought. As shown in Petitioner's Objection To Respondent's Request For Judicial Notice, filed concurrently, judicial notice of documents outside the Administrative Record in a writ proceeding is inappropriate, as are citations in the Opposition Brief that are outside the Administrative Record that Respondent Concordia University produced in this writ proceeding matter. Specifically, the Court should strike out the following lines of Concordia’s Opposition Brief: 3:11-12; 12:6-12; 13:27-14:3; 14:6-9; and 14:12-15. For reference, a redacted version of the Opposition Brief with the offending material stricken is attached hereto. WERKSMAN JACKSON HATHAWAY & QUINN LLP Dated: October 16, 2018 By. fpr&e»"7, MARK M.HATH JENNA E. PARKER Attorneys for Petitioner PETITIONER'S OBJECTION TO REQUEST FOR JUDICIAL NOTICE AND MOTION TO STRIKE 3 © O 0 0 N N O O U 1 B A W w W N D R N O N N N D N N N D N M N N F P F F P FP F F P F P FP F F P P = c o ~ N o o u o A W N F P O V U 0 0 N o U U BE E W N + , O o PROOF OF SERVICE STATE OF CALIFORNIA) )ss. COUNTY OF LOS ANGELES) | am employed in the County of Los Angeles, State of California. 1 am over the age of 18 and not a party to the within action; my business address is 888 West Sixth Street, Suite 400, Los Angeles, California 90017. On October 16, 2018,| served the foregoing document described PETITIONER'S NOTICE OF MOTION AND MOTION TO STRIKE IRRELEVANT MATERIAL FROM RESPONDENT'S OPPOSITION BRIEF on all interested parties listed below by transmitting to all interested parties a true copy thereof as follows: Adam L. Johnson,Esq. Musick Peeler & Garrett LLP 650 Town Center Drive Suite 1200 Costa Mesa, CA 92626 Phone: (714) 668-2400 Facsimile: (714) 688-2490 E-mail: a.johnson@ mpglaw.com ATTORNEY FOR RESPONDENTS [1 BY FACSIMILE TRANSMISSION from FAX number (213) 624-1942 to the fax numberset forth above. The facsimile machine | used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2005(i), | caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration. [1 BY MAIL by placing a true copy thereof enclosed in a sealed envelope addressed as set forth above. | am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. | am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. [1] BY PERSONAL SERVICE by delivering a copy of the document(s) by hand to the addressee or | cause such envelope to be delivered by process server. BY EXPRESS SERVICE by depositing in a box or other facility regularly maintained by the express service carrier or delivering to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served. BY ELECTRONIC TRANSMISSION by transmitting a PDF version of the document(s) by electronic mail to the party(s) identified on the service list using the e-mail address(es) indicated. | declare under penalty of perjury under the laws of the State of California that the above is true and correct. a that the above is true and correct. PETITIONER'S OBJECTION TO REQUEST FOR JUDICIAL NOTICE AND MOTION TO STRIKE 4 ATTACHMENTS O O 0 0 N N A n n B A W N = R O N N O N RN N N N N m m m m ® QW R& R 3 R O O R S 9% 3 a G R E 5» oo = 2 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW 650 TOWN CENTER DRIVE, SUITE 1200 COSTA MESA, CALIFORNIA 92626-1925 TELEPHONE (714) 668-2400 FACSIMILE (714) 668-2490 Adam L. Johnson (State Bar No. 167067) a.johnson@mpglaw.com Attorneys for Respondent CONCORDIA UNIVERSITY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE JOHN DOE, an individual, Case No. 30-2017-00916260-CU-WM-CIC Petitioner, Hon. Walter P. Schwarm, Department C19 Vs. CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT GILBERT FUGITT, Ed.D,et al., OF ADMINISTRATIVE MANDATE Respondent. Date: October 23, 2018 Time: 1:30 p.m. Dept.: C19 [Filed concurrently with Request for Judicial Notice] 11198522CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVEMANDATE MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW ~ ~ W N ~ N A N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IL IIL IA VL 1119852.2 TABLE OF CONTENTS Page INTRODUCTION .......oouiiietiiereriiteiietes eres esses essai sas sb eb sees ssbb bese sb esse ss ease nae snsnansanens 3 FACTUAL BACKGROUND .....oiiiiiiniieniiineiseiieiiireissnsssssassasnes4 A. The Events Of Friday, October 28, 2016 ..........ccoovvviiiviiiniiniiiiiieeecceens4 B. The Parties’ Text Messages (Provided To Concordia By Petitioner) ..............c......... 5 C. Concordia’s Sexual Misconduct/Title IX Policy And Procedure ............cccoooveeinns6 D. The Claim, Investigation, Decision, And Appeal .........ccccoovviiinniiiininnn 8 THE STANDARD OF REVIEW. .......coviiieiiiiiiciicineevens10 OVERWHELMING SUBSTANTIAL EVIDENCE ESTABLISHED THAT THE PARTIES HAD SEX, JANE ROE WAS UNDER THE INFLUENCE OF ALCOHOL AND MARIJUANA AND UNABLE TO CONSENT, AND THAT, EVEN IF SHE HAD BEEN ABLE TO CONSENT, SHE DID NOT AFFIRMATIVELY CONSENT .......ooiiiiiieiitieieneecientrsererersesnesraeesens 11 A. Substantial Evidence Supports The Finding Of Sexual Harassment ...................... 11 B. Substantial Evidence Supports The Finding Jane Roe Was Incapacitated .............. 12 PETITIONER RECEIVED A FAIR HEARING AND WAIVED OR SHOULD BE ESTOPPED FROM CLAIMING ANY PURPORTED PROCEDURAL DEFECTS......... 13 A. Petitioner Had Sufficient Notice Of The Claims Against Him...........ccccoeiiiiiiis 14 B. Petitioner Had An Adequate Opportunity To Respond to the Claims...................... 15 1. Petitioner And His Attorney Had The Opportunity To Indirectly Question Jane Roe Through The Investigator Which Was Not Required Because The Case Did Not “Turn” On Her Credibility............... 15 2. No Evidence Was Improperly Withheld From Petitioner...............ccooneai. 17 CONCLUSION ....oiiiictitiitteteteeterseetbesas ebb s bases b esses besa b eben ens 17 1 CONCORDIA UNIVERSITY’S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW O O 0 N N A W n B A W N N D N N N N D e s e s e s 28 TABLE OF AUTHORITIES Page(s) CASES Doe v. Claremont McKenna College (2018) 25 Cal.APP.Sth 1055....ceciiiiireiriiiiiicess11,16,17, 18 Doe v. Regents of the University of California (2016) 5 Cal.APDP.Sth 1055....ciiiiiiiiiiiiepassim Doe v. University of Southern California (2016) 246 Cal.APP.Ath 221 ....cocviiiiiciiiiiiiiciiies11, 16 Friends ofthe Old Trees v. Department ofForestry & Fire Protection (1997) 52 Cal.APP.4th1383...11 Goss v. Lopez (1975) 419 TLS. 565oiibbeeben11 Hongsathavij v. Queen ofAngels Med. Ctr. (1998) 62 Cal.APP.A4th 1123...iiies12 Roesch v. De Mota (1944) 24 Cal.2d 563......ooeviiiiiiiiii cs14 Tiholiz v. Northridge Hospital Foundation (1984) 151 Cal.APP.3d 1197iiieee16 STATUTES Cal. Civ. Proc. Code §1094.5(D) ..ooveiiieirrieieeieeccrinesasssareessansans 11 Cal. EVI. Code §623 ...oovvviiiieiiiieiieiiee stresses ite es sae eens s sees ibb esis rss sates sabes sashes saree sabe ates 14 Cal. BIA. Code §664 .......oeoviieeeiececeeeeebb11 1119852.2 2 CONCORDIA UNIVERSITY’S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE N o ~ N A N w n W w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW I. INTRODUCTION Petitioner John Doe, a 24-year old senior transfer student-athlete at Concordia University, was found to have sexually assaulted a younger female student, Jane Roe, and expelled. On October 28, 2016, at the time of the assault, he was already on probation for sexually harassing his ex-girlfriend, after he admitted posting her photo and telephone number on Craigslist with a caption stating, “I need to be punished for fucking over people in my life because I'm a slut,” and inviting internet trolls to “punish” her. He was previously on probation for admitted plagiarism on five occasions. During the investigation of the sexual assault of Jane Roe, the University discovered John Doe had previously been found responsible for sexually assaulting another female student “who was heavily intoxicated and unable to consent” at Salisbury University in Maryland, before transferring to Concordia.' Stricken per Court Order The evidence supporting the University’s finding that John Doe sexually assaulted Jane Roe, which included numerous text messages, was not only substantial, but overwhelming. John Doe admitted that, on the night in question, he gave Jane Roe alcohol and provided her with her first “bowl” of marijuana to smoke. He admits she was“under the influence ofmarijuana.” Jane Roe explained that, after she fell asleep in his bed, she awoke to John Doe having sexual intercourse with her. She did not “remember . . . starting to have sex,” only “pushing [him] off, saying “I’m scared.” John Doe claims that, after she told him to “Stop!,” he did so. However, Jane Roe woke up again to John Doe having sexual intercourse with her, and ejaculating on her. Based on the totality of the evidence, including multiple interviews with the parties, witness statements, and numerous text messages, the University properly determined that John Doe “knew or should have known”that Jane Roe lacked the capacity to consent to sexual activity, and found that he violated the Code of Conduct prohibiting non-consensual sexual conduct, non- consensual sexual intercourse, and sexual harassment. The writ petition should be denied. ! John Doe told Concordia’s investigator that the prior sexual assault finding had been “reversed,” although the settlement agreement he provided to the investigator shows that the finding was not reversed, and that Salisbury University merely agreed to keep the finding secret. (AR 270.) 1119852.2 3 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE [N S] O o 0 N N N N n n R A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW II. FACTUAL BACKGROUND A. The Events Of Friday, October 28, 2016 On Friday evening, October28, 2016, Jane Roe drove to John Doe’s home around 7:00 p.m. It was their first date. (AR 9,25.) Jane Roe had a glass of wine and some chicken. (AR 9, 25.) She had noteaten previously that day. (AR 9.) John Doe provided her with a “bow!” of marijuana to smoke from a bong. (AR 9, 25.) It wasthe first time she smoked from a bong. (AR 9,25.) The marijuana had “a strange effect on her almostright after she smoked it; she felt like she was spinning and her fingers were numb, and had never felt like that before.” (AR 9.) He took her upstairs to his room. (AR 9, 25.) She “laid down and asked [him] to go away,” and was “freaking out.” (AR 9.) John Doe admits she was “under the influence of marijuana.” (AR 26.) Jane Roe woke up to John Doe having sexual intercourse with her. (AR 9, 25.) She does not remember getting undressed. (AR 9.) Jane Roe told him “at least five timesto get off of her and she tried to push him off but she didn’t have the strength.” (AR 9.) She was “scared and didn’t want to do it.” (AR 9.) She said in a later text to John Doe: “I don’t even remember us starting to have sex. I rememberit happening, me pushing you off saying I'm scared and then that’s about it.” (AR 13.) She thinks he “may have stopped briefly, but within five or ten minutes,” he “was doing it again; he was on top of her and in her; she was starting to become aware again what he was doing but by that time he had stopped because he ejaculated,” and some ejaculate got “on the middle of her body on her stomach.” (AR 9.) John Doe said, “Wow [Jane], I’ve been wanting to do that a long time.” (AR 10.) Jane Roe curled up into a ball. (Id.) According to John Doe, he and Jane Roe had intercourse that was initially consensual. (AR 26.) He admitted that while he was having intercourse, she told him to “Stop! having sex because she wasn’t feeling very well and felt very high from smoking out ofthe bong earlier.” (AR 26.) He claims he “immediately stopped having intercourse with her, and then walked downstairs to get food and waterto help herfeel better.” (AR 26.) He denied resuming sex. Jane Roe could not drive home and had problems saying words. (AR 10.) According to John Doe, around 11:00 p.m., he offered to drive her home while his friends followed him in his truck because “ she wasn’t feeling well enough to drive.” (AR 26.) He “did not want her to drive home 1119852.2 4 CONCORDIA UNIVERSITY’S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE n ~ N A N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW under the influence of marijuana.” (AR 26.) “[I]t took her a week at least to try and walk through what happened that night by thinking about the night over and over again to herself before she was able to feel okay with reporting it to her...coach right before the Christmas break.” (AR 10.) B. The Parties’ Text Messages (Provided To ConcordiaBy Petitioner) On October 29, 2016, Jane Roe texted John Doe stating, “Sorry last night just really scared me and idk [sic] we shouldn’t have had sex the first night we hung out,I still feel weird now too.” (AR 12, 38.) Hereplied, ©... Tunderstand sorry.” (AR 12, 38.) She texted, “I was so fucked up that I couldn’t say words... like it legit scared me the reaction I was getting from the weed.” (AR 12,39.) John Doe replied, “[s]orry bout the rushing into sex part.” (AR 12, 39.) On November 2, 2016, Jane Roe sent a text to John Doe stating “I’m still a little [on] edge that the first time we had sex was when I wasn’t fully aware of what was going on and couldn’t even get a word out.” (AR 12, 56.) He responded, “... listen sorry we had sex....” (AR 13, 57.) She texted, “But even if you didn’t know you knew that having sex then was not right because I wasn’t in the right state of mind and you knew I could barely talk and was fucked up. When is that ever okay?... I don’t even remember usstarting to have sex, I rememberit happening, me pushing you off saying I'm scared and then that’s about it.” (AR 13; AR 58-59.) On November 11, 2016, Jane Roe texted him stating, “You raped me. You fucked up big time and you know that. You admitted you knew I could barely talk and how fucked up I was.” (AR 13, 117.) Hereplied, “Woahhhh.” (AR 13, 117.) She texted, “I don’t even remember you starting to have intercourse with me.” (AR 13, 117.) He said, “Dude you took one hit. Your [sic] really gonna say that to me.” (AR 13, 117.) She replied, “I rememberoften telling you to stop and it took me a couple of times to say that for you to actually stop and then you did it again later.” (AR 13, 117.) Hestated, “You[’re] really gonna say I raped you.” (AR 13, 118.) She said, “It’s the fucking truth [John]. You did. That's why I was disgusted that’s why I didn’t even wanna do things with you sexually after.” (AR 13, 118.) He said, “Okay. I understand that feeling. I don’t know whatto tell you.” (AR 13, 118.) She said, “It’s not a fucking feeling. It’s not a fucking joke. . .. I just want you to admit it that you were in the wrong and you know what you did.” (AR 13, 118-19.) John Doe responded, “I said sorry 1,000 times [Jane]. I feel bad 1119852.2 5 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE O o X X 3 N N n N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYSAT LAW that’s how you feel. really do. I reallllly do.” (AR 14, 119.) Jane Roe later texted John Doe, “Based off of the facts, you know how fucked up I was, you knew I could barely get out a word, you knew you were in the fucking wrong. . . . You’re not a bad person but you did a Fucked up thing.” (AR 14, 120.) He said, “I agree.” (AR 14, 120.) She said, “Want you to admit it.” (AR 14, 120.) He responded, “No I know I fucked up.” (AR 14, 120.) Hesaid, “I honestly didn’t realize how High you were because I was thinking you were just high...not fucked up like you say you were.” (AR 14, 121.) She texted, “[Y]es you did. I told you over and over how fucked up I was. And unless you're deaf and you heard me and you knew. You also knew that I like never smoked and bongs fuck you up. ... You also admitted that you KNEW I could barelytalk. . .. You said it yourself. Soo uhm yeah clearly I was Fucked up and you knew it.” (AR 14, 122.) He texted, “I said I was sorry for not realizing how high you were!” (AR 14, 123.) She texted, “Yes you did. Because I remember you laughing aboutit.” John Doe texted, “After!!” (AR 14,123.) She texted, “I mentioned that I was so fucked up that I could barely talk. ... You said, ‘yeah I know you could barely get out a word” and fucking laughed.” (AR 14-15, 123.) Jane Roe later said, “You keep trying to manipulate me to think you didn’t rape me butthe reality ofit all is you did.” (AR 15, 125.) She said, “I tried to pretend it didn’t happen but I've been raped before. I know what rape is.” (AR 15, 125.) He texted, “Yeah and every time you tell me what happened . . . it sounds like it and I fucked up . . . 1 hope you can forgive me ... I didn’t mean it to get to this point and I’m sorry....” (AR 15, 126.) C. Concordia’s Sexual Misconduct/Title IX Policy And Procedure Concordia University is a Christian post-secondary educationalinstitution located in Irvine, California. (AR 680.) In accordance with Title IX and California law, the University prohibits all forms of sexual misconductas set forth in its Sexual Misconduct/Title IX Policy. (AR 700, 700-704.) Pursuant to Concordia’s sexual misconduct policy: Non-consensual sexual intercourse is defined as: A. Any sexual penetration or intercourse (anal, oral or vaginal), B. howeverslight, C. with any object, D. by a person upon another person, E. that is without consent and/or by force. 1119852.2 6 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE A A L n A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW (AR 701-702.) Non-consensual sexual contact is defined as: A. Any intentional sexual touching, B. howeverslight, C. with any object, D. by a person upon another person, E. that is without consent and/or by force. Sexual harassmentis: A. Unwelcome, sexual or gender-based verbal, written or physical conduct that is, B. sufficiently severe, persistent or pervasive thatit, and C. has the effect of unreasonably interfering with, denying or limiting employment opportunities or the ability to participate in or benefit from the University’s educational, social and/or residential program, and is based on real or reasonably perceived power differentials (quid pro quo), the creation of a hostile environment or retaliation. The sexual misconduct policy provides an extensive statement on “consent,” as follows: 1119852.2 Consentis affirmative, knowing, voluntary and clear permission by word or action, to engage in mutually agreed upon sexual activity. Since individuals may experience the same interaction in different ways,it is the responsibility of each party to make certain that the other has consented before engaging in each stage of the activity. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. A person cannot corisentif he or she is unable to understand whatis happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engaged in a sexual activity when the individual knows, or should know,that the other person is physically or mentally incapacitated has violated this policy. Itis not an excuse that the individual respondent of sexual misconduct was intoxicated and, therefore, did notrealize the incapacity ofthe other. . . . A person can withdraw consent at any time during sexual activity by expressing in words or actions that he or she no longer wants the act to continue and, if that happens, the other person must stop immediately. (AR 703.) Upon receipt of a complaint or an allegation of a violation of the Student Code of Conduct or a University policy, the appropriate administrator or individual designated by the Dean of Students will conducta preliminary investigation to determine whether there are sufficient grounds to provethat a violation of the Code of Conduct occurred. (AR 705.) 7 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE [V S] ~ N O N W n B r W w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW The Student Code of Conduct sets forth the rights of the individual accused (respondent). (AR 706.) If a determination is made that disciplinary action may be taken, formal written notice of allegations and a disciplinary hearing are provided to the respondent. (AR 707.) “An administrative hearing conducted by one hearing officer is the most common way a student conduct case is adjudicated.” (AR 707.) “The investigator may be the same individual that conducts the preliminary investigation, if necessary, and will generally be the same individual that conducts the administrative hearing.” (AR 707.) “During the hearing, the student has the right to hear and present information related to the disciplinary process and the allegations presented against him or her.” (AR 707.) “The hearing officer and/or investigator will make a finding and responsibility to assign sanctions, if necessary.” (AR 707.) After the hearing, “the administrator hearing the case...will make a finding and either issue sanctions or recommend sanctions via the Office of Student Conduct.” (AR 708.) The student will receive the decision in writing. (AR 708.) The Code of Conduct sets forth a variety of possible sanctions, from loss of privileges to expulsion. (AR 709-713.) Either party may appeal the decision using the appeal process outlined in the Code of Conduct. (AR 704, 715.) D. The Claim, Investigation, Decision, And Appeal On December 14, 2016, Jane Roe reported to the University that she had been sexually assaulted by John Doe. The University opened an investigation and sent a letter providing notice to John Doe. (AR 3-6.) The investigator interviewed Jane Roe, and then John Doe (with John Doe and his lawyer present) and then John Doe’s brother. (AR 7, 231.) John Doe provided the investigator with a written statement, 184 pages of texts, a polygraph test, two witness statements, and documents about a prior finding of sexual assault against him at Salisbury University in Maryland. (AR 25-274.) After meeting with him, the investigator met with Jane Roe again. (AR 7, 16-17.) She later emailed questions to John Doe, and, on March 1, 2017, he and his attorney provided responses to three clarifying questions reflected in the report. (AR 7, 16-17.) On March 14, 2017, the investigator issued a 15-page report (AR 7-21), finding that “it was more likely than not that [John Doe] knew or should have known [Jane Roe] lacked capacity [to consent to sexual activity].” (AR 354-55.) John Doe was responsible for (1) non-consensual 1119852.2 8 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE ~ N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW sexual intercourse, (2) non-consensual sexual contact, and (3) sexual harassment. (AR 19-21, 354-55.) The investigator recommended expulsion to the Associate Dean, who adopted the recommendation, and John Doe was expelled, effective March 15, 2017. (AR 354-55.) In assessing credibility, the investigator noted that John Doe had been found responsible for a sexual assault at Salisbury University in Maryland during academic year 2015-16. He told her that Salisbury had “reversed”its decision. (AR 18.) The investigator noted a secondary concern, in that he was found responsible for a prior incident of sexual harassment at Concordia (AR 307-353), but she determined the matter should not have a bearing on whether he assaulted Jane Roe. (AR 18.) The investigator noted that, in response to questions she posed to John Doe, he had forwarded an email from his attorney, Mark Hathaway, reflecting the attorney had prepared the answers for him, and that, in her opinion, it impacted John Doe’s credibility. (AR 18.) The investigator noted that both parties agreed that there was penetration of John Doe’s penis into Jane Roe’s vagina. (AR 19-21.) The parties’ statements differed on whether consent was obtained. Afterciting University policy on consent (see above), the investigator determined that it was more likely than not that Jane Roe was incapacitated at the time of sexual intercourse and could not have given consent, dueto a lack of food intake, ingestion of wine, and smoking marijuana through a bong for the first time. Texts corroborated that she was disoriented and incapacitated, and unable to give consent. The investigator found John Doe either knew or should have known that Jane Roe was incapacitated due to her stating several times that she did notfeel well and that he should stop or get off of her. The investigator cited John Doe’s text messages recognizing she was incapacitated. (AR 20.) A witnesses statement provided by John Doe confirmed she was “a little off from wine or weed or a combo,” a second witness corroborated that he drove her home, and a third witness said Jane Roe told her she was “date-raped.” The investigator found that, even if she had not been incapacitated, consent wasstill required and the facts did not reflect consent was obtained. (AR 20.) The findings of non-consensual sexual contact and harassment followed from the finding of non-consensual sexual intercourse. (AR 21.) On March 15, 2017, the Associate Dean accepted the recommendation of the investigator, and informed John Doe he was “permanently expelled from the University.” (AR 354-55.) 1119852.2 9 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE ~ ~ W N ~ N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW On March 20, 2017, John Doe sent an email to the Dean of Students stating that he wanted to appeal. (AR 356-57.) He requested and was granted an extension. In late March, 2017, he provided his appeal with several hundred pages of exhibits, most of which were the same documents he submitted in the investigation. (AR 358-671.) At the appeal hearing on March 31, 2016, the Dean met with John Doe,his attorney and his mother and father. Notes of the proceeding were taken. (AR 672-73.) On April 18, 2017, the Dean issued an opinion denying the appeal and upholding the sanction of expulsion. (AR 674-75.) III. THE STANDARD OF REVIEW On a petition for writ of mandate, the courtis to determine “whether the respondenthas proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” (Cal. Civ. Proc. Code §1094.5(b).) The petitioner has the burden of proofin an administrative mandamus proceeding. (Cal. Evid. Code §664.) In this case, a “fair trial” refers to a “fair administrative hearing.” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1073 [“Regents”].) “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.” (Id. at 1077; Goss v. Lopez (1975) 419 U.S. 565, 579-82.) “[P]urely documentary proceedings can satisfy the hearing requirement of section 1094.5, so long as the agency is required by law to accept and consider evidence from interested parties before making its decision.” (Friends ofthe Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1391.) A court reviews the fairness of the proceedings de novo, and the substantive decision for “substantial evidence.” (Id.; CCP §1094.5(c).) According to Petitioner, “fairness”is established if the court finds the “administrative proceedings were conducted in a manner consistent with the minimal requisites of fair procedure demanded by established common law principles.” (POB at 12:14-17.) Student conduct proceedings do not involve a “fundamental vested right” that might require a court to apply independent judgment or conducta trial de novo. (Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1065 [CMC]; Regents, 5 CalApp.5th at 1072; Doe v. University ofSouthern California (2016) 246 Cal.App.4th 221, 239 [“USC].) 1119852.2 10 CONCORDIA UNIVERSITY’S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE W w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW IV. OVERWHELMING SUBSTANTIAL EVIDENCE ESTABLISHED THAT THE PARTIES HAD SEX, JANE ROE WAS UNDER THE INFLUENCE OF ALCOHOL AND MARIJUANA AND UNABLE TO CONSENT, AND THAT, EVEN IF SHE HAD BEEN ABLE TO CONSENT, SHE DID NOT AFFIRMATIVELY CONSENT The substantial evidence standard is an “extremely deferential...standard of review.” (Regents, 5 Cal.App.5th at 1073-74.) “On substantial evidence review, the court does 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.” (/d.) The agency’s findings come before the court “with a strong presumption asto their correctness and regularity.” (Id.) The court does “not substitute [its] own judgment if the agency’s decision is one which could have been made by reasonable people.” (Id.) “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.; Hongsathavij v. Queen of Angels Med. Ctr. (1998) 62 Cal.App.4th 1123, 1137 [The court “must uphold administrative findings unless [they] are so lacking in evidentiary support as to render them unreasonable.”].) The court is “required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict.” (Id. at 1074.) “Credibility is an issue of fact for the finder of fact . .and the testimony of a single witness, even that of a party,is sufficient to provide substantial evidence to support a finding of fact.” (Id.) The administrative record contains overwhelming substantial evidence showing that Jane Roe was incapacitated by alcohol and marijuana at the time of the assault, and unable to consent to sexual activity. (See, e.g., Factual Background, supra.) The investigator noted, even “[a]ssuming arguendo that she was not incapacitated, consentis still required, and the facts do not support that consent was obtained.” (AR 20.) John Doe’s failure to cite evidence showing he complied with his obligation “to make certain that the other [party] has consented before engaging in each stage of the [sexual] activity” (AR 19), is yet another basis on which to uphold the decision. A. Substantial Evidence Supports The Finding Of Sexual Harassment There is substantial evidence John Doe’s sexual assault of Jane Roe interfered with her ability to benefit from Concordia’s educational and social programs. (AR 21.) Jane Roe was 11198522 11 CONCORDIA UNIVERSITY’S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE ~ ~ ~ N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW severely affected by the incident, as reflected by her statements to the investigator (AR 9-10), and the text messages that John Doe provided. (AR 30-214.) The investigator explicitly found that John Doe’s unwelcome sexual physical conduct was “severe and had the effect of unreasonably interfering with [Jane Doe’s] ability to benefit from the University’s educational and social program.” (AR 21, 354.) The finding is strongly supported by a review ofthe record as a whole. Stricken per Court Order B. Substantial Evidence Supports The FindingJane Roe Was Incapacitated John Doe’s argumentthat the “only” evidence of Jane Roe’s incapacitation was “her statement”is not supported by the record. John Doe’s statement and the other witness statements he provided all showed that Jane Roe was under the influence of alcohol and marijuana. John Doe said in his statement that Jane Roe asked him if she “could smoke out of[his] bong for her first time” (AR 25), and said she was “underthe influence of marijuana.” (AR 26.) According to him, “While having intercourse, [Jane] told [him] to ‘Stop!’ having sex because she wasn’t feeling very well and felt very high from smoking out of the bong earlier.” (AR 26.) “[S]he wasn’t feeling well enough to drive,” and he “did not want her to drive home under the influence of marijuana.” (AR 26.) Witness 1, John Doe’s brother, confirmed they “had white wine and smoked.” (AR 231.) Witness 2, John Doe’s friend, confirmed John Doe told him “they had been smoking marijuana,” and he had to drive her home. (AR 232.) Witness 3, said Jane Roe told her, “[she] got very high because [she] tried to smoke out of the bong for the first time.” (AR 234.) The text messages John Doe gave the investigator independently established Jane Roe was “fucked up,” unable to consent, and that he did not even try to obtain her affirmative consent. (AR 12-16; 30- 214.) Asreflected in Concordia’s policy, “it is the responsibility of each party to make certain 1119852.2 12 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW that the other has consented before engaging in each state of the activity.” (AR 703.) There “must be a clear expression in words or actions that the other individual consented to that specific sexual conduct.” (AR 703.) “It is not an excuse that the individual respondent of sexual misconduct was intoxicated and, therefore did notrealize the incapacity of the other.” (AR 703.) John Doe’s argumentthat there was evidence that Jane Roe was not “really” too incapacitated to consent, are without merit, and largely irrelevant under the deferential “substantial evidence”standard. V. PETITIONER RECEIVED A FAIR HEARING AND WAIVED OR SHOULD BE ESTOPPED FROM CLAIMING ANY PURPORTED PROCEDURAL DEFECTS A fair administrative hearing generally “requires ‘notice reasonably calculated to apprise interested parties of the pendency ofthe action...and an opportunity to present their objections.” (Regents, 5 Cal.App.5th at 1077.) “Procedures for dismissing college students are not analogous to criminal proceedings and could not be so withoutat the same time being both impractical and detrimentalto the educational atmosphere and functions of the university.” (Id.) “A university’s primary purpose is to educate students: a schoolis an academic institution, not a courtroom.” (Id.) “There are few cases defining fair hearing standards for student discipline at private universities.” (Regents, 5 Cal.App.5th at 1102.) Cases that touch on the issue generally suggest general guidelines or recommend a specific fix for a particular shortcoming. (Id.) Petitioner's arguments regarding alleged defects in Concordia’s notice and hearing procedures do not appear to be genuine, and are barred by Concordia’s affirmative defenses of Estoppel and Waiver. (Answer, filed 9/29/17, at 21.) “Waiver is the intentional relinquishment of a known right after knowledge ofthe facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572.) Estoppel is when “a party has, by his own statement or conduct, intentionally and deliberately led anotherto believe a particular thing true and to act upon such belief, he is not in any litigation arising out of such statement or conduct, permitted to contradict it.” (Cal. Evid. Code §623.) Both defenses stem from Petitioner’s (and his attorney’s) prior participation in sexual assault proceedings and their failure to timely assert any purported procedural deficiencies. Stricken per Court Order 1119852.2 13 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE O o 0 N N N R A W N B N D N N N N N N D = = e m e s 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW CourtOrder 1] "FIKnehad any genuine questions about the fairness of Concordia’s procedures, or any questions that he wanted his client to pose to Jane Roe through the investigator, he could have had hisclient raise them prior to the decision. Order 7] IE [0[TheConcordia proceedings took place over a yearlater. John Doe knew he wasentitled to “proper”notice of any claim against him, but never “requested clarification” or complained (until now) about the notice. O er FEE Cseeve does not claim that he wanted to ortried to ask questions of Jane Roe through the investigator. John Doe and his attorney’s tactical decisions to not raise the purported procedural issues regarding alleged inadequacy of notice, questioning of Jane Doe, orthe like, until after the decision in the underlying matter was rendered, does not mean that they did not have the “opportunity” to present a defense. They did. Thefailure to timely raise any procedural issues should bar them from asserting them in this writ proceeding, or at least inform the court’s review. A. Petitioner Had SufficientNotice Of The Claims Against Him Petitioner confirms he received notice of the claims against him in a letter dated December 14, 2016. (AR 3.) The notice stated, in pertinent part: “On December 14, 2016, [the Director of Student Conduct] received a complaint alleging the following occurred on October 28, 2016, at an off-campus location: You sexually assaulted CUI student [Jane Roe].” (AR 3.) The notice was sufficient to “apprise [John Doe] of the pendency of the action.” (POB at 13:18-19.) The notice provided the factual basis for the claim, including the identity of the parties, 1119852.2 14 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE ~ N N N W n A 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW the date of the incident, the nature of the incident, and that it occurred “off campus.” (AR 3.) “Sexual assault” is a commonly-used term, and includes e.g., “any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent.” (See, e.g., Concordia University Clery Report for 2017-18, available online, at 15.) John Doe could have raised any genuine notice issues during the investigation. He did not. The notice in this case was unlike the notice in USC, where “John Doe” was not informed “about the factual basis for the charges for which he was ultimately sanctioned.” (USC, 246 Cal.App.4th at 244.) In USC, the court said a school needs to provide “information about the basis of the accusation — notjusta list of student conduct code sections” violated. (Id.) In USC, the respondent was told that he was being investigated in connection with a sexual assault, but was never told that he faced potential responsibility for “encouraging and permitting” an assault but waslater found responsible for doing just that. (/d.) This case is not like the USC case. John Doe’s claim that he did not understand that he was facing responsibility for non- consensual sexual intercourse (and the “lesser included” offenses of non-consensual sexual contact and sexual harassment), until he received the decision, is undermined by the notice, his written statement (AR 25-29), and the documents that he submitted to the investigator (AR 30-274), which show that he was well aware of the factual basis of the claims. B. Petitioner Had An Adequate Opportunity To Respond totheClaims An opportunity to respond in an administrative proceeding is sufficiently fair if there is a “reasonable opportunity to be heard.” (Tiholiz v. Northridge Hospital Foundation (1984) 151 Cal.App.3d 1197, 1202.) The record as a whole shows Petitioner had an adequate opportunity to present his defense. His claims of alleged procedural deficiencies should be barred by waiver and estoppel, but even if the court considers them, they are legally and factually without merit. 1. Petitioner And His Attorney Had The Opportunity To Indirectly Question Jane Roe Through The Investigator Which Was Not Required Because The Case Did Not “Turn” On Her Credibility Petitioner argues that the underlying matter turned on the credibility of Jane Roe, and that he should therefore have been given an “opportunity” to question her, “evenif indirectly,” based on the CMC case,cited above. (POB at 14:9-11.) In CMC,the court granted a petition for writ 1119852.2 15 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE n o ~ ~ N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW because the accuser never appeared before the 3-person factfinding panel, so that two ofthe three factfinders never had an opportunity to evaluate the accuser’s credibility. (CMC, 25 Cal.App.5th at 1071-72.) The court in CMC stated that, where an accused student faces a severe penalty, and a school’s determination “turns” on the complaining witness’s credibility, the accused studentis “entitled to a process by which the respondent may question, even if indirectly, the complainant,” and “the complaining witness must be before the finder of fact either physically or through video conference or like technology to enable the finder of fact to assess the complaining witnesses’ credibility in responding to its own questions or those proposed by the accused student.” (/d.) This case is distinguishable from CMC, because (1) this case did not “turn” on Jane Roe’s credibility (Petitioner’s admissions and text messages were key evidence), and (2) the factfinder (i.e., investigator), met with Jane Roe multiple times, and was able to assess her credibility in response to questions, including any questions that John Doe or his attorney wanted to propose. First, as reflected by the investigation report, the case did not “turn” on Jane Roe’s credibility. (AR 7-21.) As discussed above, John Doe and every other witness testified to facts supporting the finding that Jane Roe was incapacitated. The text messages that John Doe provided independently established that he knew Jane Roe was “under the influence,” unable to consent, and that he did nottry to obtain her affirmative consent. (AR 12-16; 30-214.) Second, John Doe and his attorney clearly had the opportunity to propose any questions they wanted the investigator to raise with Jane Roe during her second interview. (AR 7.) Again, John Doe and his attorney were aware they could suggest questions for the investigator to ask Jane Roe. In Regents, 5 Cal.App.Sth at 1084, the court found that, although “Jane Roe” was the sole witness, due process was satisfied because the accused could suggest questions to be asked by the factfinders. Petitioner’s decision to not propose any questions to Jane Roe does not mean he did not have the opportunity. As stated in Regents, the relevant question is whether the student had the opportunity, not whether he actually took advantage of it. (/d. at 1104.) John Doe’s argumentthat he should have been allowed to “hear and observe” the witnesses against him, is not supported by the authority that he cites, and is irrelevant, because he submitted the two witness statements at issue (AR 232-37), and he and his attorney were present for the 1119852.2 16 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW S H O W N O O 0 0 3 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 telephonic interview ofthe third witness, his brother (AR 231.) He was notentitled to “confront” Jane Roe. Even in a case turning on a single complaining witnesses’ credibility, a school merely needs to provide a “means for the factfinder to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.” (CMC, 25 Cal.App.5th at 1073 [emphasis added].) 2. No Evidence Was Improperly Withheld From Petitioner John Doe argues incorrectly that the University relied on evidence that was never provided to him to find that he sexually assaulted Jane Roe. In fact, the documentary evidence relied upon was (1) provided by John Doe himself, and/or (2) already in his possession. (AR 25-353.) Itis thus not surprising that he claims to have spent only an hour reviewing the evidence prior to his appeal. He could have had more time if he wanted. The only item he claimed to have not seen previously was a police officer’s business card reflecting that Jane Roe reported the incident, not that a police report was ever prepared. The record reflects that he already had the items he claims were “missing,” because he provided the items to Concordia and/or because he was previously provided with copies of the documents in connection with his five prior admitted incidents of plagiarism, and his prior admitted sexual harassment ofhis ex-girlfriend. (AR 238-353.) The documents are properly part of the administrative record, because all were referred to in the investigation and/or appeal. (AR 18, 674-75.) The court in Regents rejected a similar argument, finding that “John Doe” had “not shown that he was prejudiced by the absence of” the evidence of which he was allegedly deprived. (/d. at 1096.) Petitioner had not pointed to any new evidence “that surprised him or for which he was unprepared.” (/d.) In this case, John Doe provided all of the documentary evidence that was relied on for the finding, and there is no evidence he was “prejudiced” by being deprived of any allegedly missing evidence, since he already hadit. V1. CONCLUSION For all the above reasons, the Court should deny the Petition for Writ in its entirety. DATED: October 10, 2018 MUSICK, PEELER & GARRETT LLP By: Adam L. Johnson Attorneys for Respondent Concordia University 11198522 17 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE W w 0 3 O N \ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE At the time ofservice, I was over 18 years of age and nota party to this action. I am employed in the County of Orange, State of California. My business address is 650 Town Center Drive, Suite 1200, Costa Mesa, CA 92626-1925. On October 10, 2018, I served true copies of the following document(s) described as CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE on the interested parties in this action as follows: Mark M. Hathaway WERKSMAN JACKSON HATHAWAY & QUINN LLP 888 West Sixth Street, Fourth Floor Los Angeles, CA 90017 Phone: (213) 688-0460 Fax: (213) 624-1942 Email: mhathaway@werksmanjackson.com Attorneysfor Petitioner John Doe x] BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx and addressed to the persons at the addresses listed in the Service List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 10, 2018, at Costa Mesa, California. Apa YPorone) April Y{jsay IB J 1119852.2 18 CONCORDIA UNIVERSITY'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDATE