Doe v. Regents of the Univ. of Cal.

• Decision Date: 09 October 2018
• Docket Number: 2d Civ. No. B283229
• Citation: 28 Cal.App.5th 44,238 Cal.Rptr.3d 843
• Court: California Court of Appeals
• Parties: John DOE, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

28 Cal.App.5th 44

238 Cal.Rptr.3d 843

John DOE, Plaintiff and Appellant,

v.The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

2d Civ. No. B283229

Court of Appeal, Second District, Division 6, California.

Filed October 9, 2018

Leader & Berkon, LLP, Arthur I. Willner for Plaintiff and Appellant.

Nye, Peabody, Stirling, Hale & Miller, LLP, Jonathan D. Miller, Alison M. Bernal, Santa Barbara, for Defendants and Respondents The Regents of the University of California, Margaret Klawunn, and Henry T. Yang.

GILBERT, P. J.

Due process - two preeminent words that are the lifeblood of our Constitution.Not a precise term, but most everyone knows when it is present and when it is not.It is often most conspicuous by its absence.Its primary characteristic is fairness.It is self-evident that a trial, an adjudication, or a hearing that may adversely affect a person’s life must be conducted with fairness to all parties.

Here, a university held a hearing to determine whether a student violated its student code of conduct.Noticeably absent was even a semblance of due process.When the accused does not receive a fair hearing, neither does the accuser.

John Doe(John) was suspended from the University of California, Santa Barbara (UCSB) for eight quarters (two years) because he was found guilty of sexual misconduct in violation of UCSB’s Student Conduct Code.He appeals the superior court’s decision denying his petition for a writ of administrative mandate to compel UCSB to rescind his suspension.( Code Civ. Proc., § 1094.5, subd. (g).)

John was denied access to critical evidence; denied the opportunity to adequately cross-examine witnesses; and denied the opportunity to present evidence in his defense.UCSB denied John a fair hearing.We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

John Doe and Jane Roe(Jane) were undergraduate students at UCSB.On the night of June 26, 2015, Jane attended a birthday party for John’s girlfriend (eyewitness one) that was held in the apartment John shared with eyewitness one and another roommate (eyewitness two).Jane was intoxicated and decided to lie down under the covers on a mattress against the living room wall.

John returned home also intoxicated and wanted to lie down.Eyewitness one told him to lie down on the mattress for a nap because they were going to the beach later.He lay down fully clothed on top of the covers facing the wall with his back to Jane.Eyewitnesses one and two were talking, sitting on the couch, approximately two-and-a-half feet away.

Jane alleged that while she was asleep on the mattress, John sexually assaulted her.She alleged he aggressively fondled and sucked her breasts while she was in an incapacitated state and unable to consent; removed the bottom half of her clothing; and penetrated her vagina and anus with his fingers and/or penis without her consent.

On June 28, 2015, two days after the alleged assault, Jane was medically examined by the Santa Barbara County Sexual Assault Response Team(SART).She reported the sexual assault to campus police, but declined to divulge the identity of the suspect or location of the sexual battery.On June 30, 2015, Jane’s complaint was sent to UCSB’s Title IX office.The office attempted to contact Jane for further information, but she did not respond and the file was closed.

One month later, on July 31, Jane informed campus police that she wished to proceed with her complaint.On August 3, 2015, the Title IX office initiated an investigation.

On September 16, 2015, the Office of Judicial Affairs(OJA) notified John that he was being placed on interim suspension pending an investigation into the incident, and was not allowed on campus or permitted to live in UCSB housing.

John contested the interim suspension and denied that he assaulted or had sexual contact with Jane.He attended an informal hearing with Suzanne Perkin, the assistant dean of students, on September 29, 2015.At that time, he submitted a statement to the OJA, as well as eyewitness statements and photographs to support his claim that he had not committed any of the alleged acts.On October 1, 2015, Perkin e-mailed campus police Detective Dawn Arviso to "reconfirm that there is physical evidence of an assault in this case."The detective replied by e-mail that "[t]he SART report states ‘bruising and laceration noted in anal area.’ "The detective, however, did not provide the SART report to Perkin.The detective’s e-mail about the SART report was not disclosed to John or his counsel until several months later.Therefore, John could not respond to the SART report while attempting to contest his interim suspension.On October 5, 2015, the vice chancellor consulted with Perkin and then upheld John’s interim suspension with modifications.

According to UCSB, the Santa Barbara County Sheriff’s Department requested that the Title IX office place its investigation on hold from November 4, 2015, to December 15, 2015.¹It was not until May 17, 2016, nearly a year after the alleged assault, that the Title IX office concluded its investigation and issued a report finding Jane’s claims were substantiated.The investigation took 173 working days (nearly 10 months) from the date the investigation was initiated (August 3, 2015) to the date the report was issued (May 17, 2016), excluding the time the investigation was placed on hold.

UCSB’s written policies require prompt investigation of complaints for sexual harassment and sexual violence.(U.C. Policy - Sexual Harassment & Sexual Violence(2014)§ (V)(B)(4)(g)["The investigation shall be completed as promptly as possible and in most caseswithin 60 working days of the date the request for formal investigation was filed.This deadline may be extended on approval by a designated University official"(italics added) ].)The record does not reveal the reason for the delay here.

UCSB charged John with violating sections 102.08and102.09 of UCSB’s Student Conduct Code.Section 102.08 prohibits "[p]hysical abuse, sexual assault, threats of violence, or other conduct that threatens the health or safety of any persons."Section 102.09 prohibits conduct amounting to sexual harassment.Violations of the Student Conduct Code that warrant a suspension or dismissal from UCSB are heard by the Sexual/Interpersonal Violence Conduct Committee(Committee).

On June 29, 2016, one year after the alleged conduct, John was notified that a hearing before the Committee was scheduled for July 12, 2016, to determine if he had violated the Student Conduct Code.John was notified that he had until July 11, 12 days later, within which to submit any information he wanted the Committee to review, along with the name and contact information of any witnesses.His witness list and information would be combined with the initial incident report, the Title IX officer’s investigation notes and report, and UCSB’s internal correspondence and notifications to the parties to create the "hearing packet."John was advised that if he wished to review the hearing packet in advance of the hearing, he could make an appointment to review it with the director of judicial affairs in her office prior to the hearing, or he could review it at the hearing.

On July 6, 2016, John submitted his list of exhibits, evidence, and witnesses for the hearing.Jane submitted no witness information or evidence at that time.

On the afternoon of July 11, 2016, the day before the scheduled hearing, the Committee Chair continued the hearing to August 16, 2016, "to ensure all requested information is gathered, made available for review in a timely manner to all parties prior to a hearing, and available for review by the [Committee] during the hearing."John objected to the continuance, explaining that he and his witnesses had already made travel arrangements.He stated that rescheduling created a hardship and prejudiced his defense; his key witness (eyewitness one) would be studying abroad after July 26th and would be unable to attend the hearing.The OJA overruled his objection, explaining the Committee had "the right to postpone the hearing for a reasonable period of time to allow consultation with University General Counsel."

Prior to the August 16th hearing, Jane submitted her list of witnesses and two documents -- the cover page of her SART report and a second SART document that listed her current medications.John submitted a list of witnesses, detailed declarations from his roommates (eyewitnesses one and two), photographs of the living room, and the report of a polygraph examiner.

On August 16, 2016, a two-member Committee conducted a hearing to determine if John had sexually assaulted Jane in violation of the Student Conduct Code.

Testimony at the Administrative Hearing

Our review of the evidence is hindered by the state of the administrative record.The Student Conduct Code requires the OJA or UCSB’s general counsel to audio record the proceeding and keep summary minutes of the hearing.(UCSB Student Conduct Code, § D, subd. 1.(d)(2)(c)(iv).)Nothing in the administrative record indicates an audio recording of the proceeding was made, and there is no transcript of the hearing.The minutes of the hearing included in the administrative record set forth the testimony, but are replete with redactions and ellipses.This court, therefore, is unable to determine whether portions of the testimony were omitted from the minutes.

Jane explained that she was good friends with John and eyewitness one and had spent the night at their apartment many times.She testified that on the night of the incident, she drank wine and mango margaritas, played beer pong, and "hung out" in the living room with the eyewitnesses and others attending the party.At some point, she felt "pretty drunk" and decided to lie down on the mattress of the bottom bunk bed situated against the wall in the living room.The bottom bunk had a full size mattress and was barely three feet from the couch.Eyewitness one lent...