Doe v. Regents of the Univ. of Cal.

Decision Date22 November 2016
Docket NumberD068901
Citation5 Cal.App.5th 1055,210 Cal.Rptr.3d 479
CourtCalifornia Court of Appeals Court of Appeals
Parties John DOE, Plaintiff and Respondent, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Appellant.

Munger, Tolles & Olson, Bradley S. Phillips, Grant A. Davis-Denny, Thomas P. Clancy, Los Angeles; Charles F. Robinson, Karen J. Petrulakis, Margaret L. Wu and Elisabeth C. Yap, Oakland, for Defendant and Appellant.

Huang Ybarra Singer & May, Katherine K. Huang, Pasadena, Carlos A. Singer, Los Angeles, and Kevin H. Scott for the California Coalition Against Sexual Assault, the National Alliance to End Sexual Violence, and the California Women's Law Center as Amicus Curiae on behalf of Defendant and Appellant.

Haberkorn & Associates, Matthew H. Haberkorn, Redwood City; Esner, Chang & Boyer, Andrew N. Chang, Oakland, and Joseph S. Persoff for Plaintiff and Respondent.

Cynthia P. Garrett for Foundation for Individual Rights in Education as Amicus Curiae for Plaintiff and Respondent.

HUFFMAN, Acting P.J.John Doe and Jane Roe1 were students at the University of California, San Diego (UCSD) when they began a romantic relationship. A few months after their relationship ended, Jane made a complaint to UCSD's Office of Student Conduct (OSC) that John had sexually assaulted her. An investigator from UCSD's Office for the Prevention of Harassment and Discrimination (OPHD) began an investigation, and Jane submitted a written request for a formal investigation. The investigator produced a report indicating it was more likely than not that John digitally penetrated Jane's vagina without consent on the morning of February 1, 2014 in violation of UCSD's Student Conduct Code.2 The investigator concluded there was insufficient evidence to support two other claims Jane had alleged against John. These claims were: (1) John had sexual intercourse with Jane without her effective consent on January 31, 2014; and (2) John retaliated against Jane at an off campus party on May 14, 2014.

After a meeting with the relevant dean in which John did not take responsibility for the alleged misconduct, UCSD held a student conduct review hearing regarding Jane's complaint where a student conduct review panel (Panel) heard testimony and considered evidence. Ultimately, the Panel found that John had violated UCSD's Student Conduct Code. In addition to other sanctions, the Panel recommended John be suspended from UCSD for one quarter.

After considering the Panel's recommendation, the evidence, and statements from both John and Jane, the relevant dean suspended John for an entire year in addition to prescribing other sanctions. John appealed the Panel's decision as well as the sanctions to the council of provosts, but the council found the Panel's decision supported by the evidence and the sanctions were not too excessive. In fact, the council of provosts increased the length of John's suspension by a quarter.

John petitioned for a writ of mandate in the superior court, arguing he was not afforded a fair hearing, substantial evidence did not support the Panel's decision, and both the dean and the Regents of the University of California (Regents) improperly increased his punishment in response to his appealing the Panel's decision and recommended sanctions. The superior court granted the petition, agreeing with John on all grounds and entered judgement requiring the Regents to set aside their findings and the sanctions issued against John.

The Regents appeal the judgment, arguing the trial court erred in granting the petition for writ of mandamus. Specifically, the Regents contend the Panel's substantive decision is supported by substantial evidence, the hearing provided John did not deny him due process, and the sanctions were not a product of an abuse of discretion. We agree.

Substantial evidence supports the Panel's decision and findings. Specifically, the decision and findings are supported by Jane's testimony at the hearing as well as the investigator's report, which was before the Panel and given to John and Jane before the hearing. John's reliance on contrasting evidence and emphasis of other evidence bearing on Jane's credibility is not of the moment. Under the extremely deferential substantial evidence standard of review, we must disregard the contrary evidence, and we do not make credibility determinations. Here, the evidence was sufficient to buttress the Panel's decision.

We also disagree with John's contention that the process, especially the hearing, was unfair. John was provided with notice of his alleged violation, informed regarding the basis of that violation, and given the opportunity to put forth his defense. We acknowledge that UCSD's procedures were not perfect and we have some concerns, but on the record before us, we cannot conclude the process was unfair. Further, John has not shown he was prejudiced by the process UCSD afforded him in this case.

Finally, we determine that UCSD's sanctioning of John was not an abuse of discretion. In reaching this conclusion, we observe that the Panel was not authorized to sanction John and merely made a recommendation to the relevant dean. That dean sanctioned John in the first instance and did so per the applicable sanctioning guidelines, which required a minimum one-year suspension for his violation. And, on the record before us, we cannot say that the slight increase in the length of that suspension levied by the council of provosts after John's appeal was an abuse of discretion.

For these reasons and as explained below, we reverse the judgment and remand the matter back to superior court with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

The Incident

We take the following facts from the administrative record. Where appropriate, we note some of the disputed facts that appear in the record.

Jane and John met in January 2014. Shortly thereafter, they began a romantic relationship. At the beginning of the relationship, Jane told John that she was a virgin and planned to wait to have sexual intercourse "until marriage or until something that was very, very special to [her] and that [she] wasn't going to change [her] mind." The couple would "make out[,]" including engaging in oral sex. During some of these interactions, John would ask Jane to have sex. She would tell him that she physically wanted to, but "mentally [she] always said no." John stated that he and Jane "expressed an interest in having intercourse," and Jane "eventually communicated to [him] that she was now becoming a bit more ambivalent in respect to her abstinence." John informed Jane that he was willing to have sex with her if she changed her mind.

On January 31, 2014, Jane and John agreed to attend a party together. Prior to going to the party, Jane went to John's apartment with a group of people to "pregame, to drink before the party." Jane was not an experienced drinker, and the evening of January 31 marked only the second or third time she had ever drank alcohol. The record is unclear how much alcohol Jane consumed while at John's apartment, but Jane drank vodka out of a red plastic cup. John believed Jane drank about four or five shots of vodka.

Jane also brought a change of clothes to John's apartment so she could spend the night after the party. She had spent the night with him on previous occasions, and they had not had sex on any of those nights.

Jane and John eventually left John's apartment and went to the party. Jane recalls drinking more alcohol at the party, but the record is unclear regarding how intoxicated Jane was. The record indicates that Jane's "memory of the night became very blurry."

Eventually, Jane and John returned to John's apartment after the party. Jane did not remember much of what happened the rest of the night as she "blacked out."

The next morning, Jane woke up in John's bed. Although she could not remember what happened the night before, her vagina felt sore. She suspected that the soreness was caused by having sex the night before, but she did not remember engaging in sexual intercourse.3 That morning, John tried several times to touch Jane's vagina. Jane kept pushing his hands away while saying, "Stop, it hurts," and "I am sore. Don't." Jane stated that John kept coming "back and doing it regardless of whether or not [she] said stop or not." After Jane told John to stop one time, John responded, "Well, if it hurts then I guess I did my job right." Evidence in the record indicates that John entered Jane's vagina three times with his finger.4

A couple hours later, John drove Jane home. During the day, John and Jane texted each other, commenting about how members of their fraternity and sorority were becoming romantically involved.

The night of February 1, 2014, was Jane's sorority formal, and she had previously asked John to attend. Although Jane was "really upset" "for having sex" and "getting that drunk[,]" she did not "want to uninvite [John] because [she] didn't want people to ask [her] why" and "didn't want to explain what happened." Thus, Jane and John attended the formal. There, John asked Jane if they were going to have sex again that night. Jane told John that she wanted to pretend that the previous night never happened and was just going to move on. However, John kept asking Jane to have sex that night, saying "Well, what's twice? You know, we have already done it once, what's twice?" He also told Jane, "You are already not a virgin, it is already over, you might as well do it again." Jane responded multiple times that she was not going to have sex. Nevertheless, Jane eventually consented to have sex with John, stating that she "gave up on [herself]" and told John something to the effect of, "Let's just get it over with, it is whatever."

After the formal, Jane and John interacted occasionally both socially and academically. Jane stated that they were not friends and she did not want to be around him. In fact, Jane claimed that she nearly failed a class she had with John...

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