Doe v. Regents of the Univ. of Cal.

• Decision Date: 24 June 2022
• Docket Number: A161546
• Citation: 80 Cal.App.5th 282,295 Cal.Rptr.3d 625
• Parties: John DOE, Plaintiff and Respondent, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent; Jane Roe, Appellant.
• Court: California Court of Appeals Court of Appeals

80 Cal.App.5th 282

295 Cal.Rptr.3d 625

John DOE, Plaintiff and Respondent,

v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent;Jane Roe, Appellant.

A161546

Court of Appeal, First District, Division 3, California.

Filed June 24, 2022

Steptoe & Johnson, Robyn C. Crowther, Melanie A. Ayerh ; Public Counsel Law Center, Kathryn A. Eidmann, Amanda Savage, Tara Ford, Noreen A. Farrell; Equal Rights Advocates, Brenda Star Adams and Maha Ibrahim, for Appellant.

Family Violence Law Center, Erin Scott, Stephanie Penrod; and L.L. Dunn Law Firm, Laura L. Dunn, for Amici Curiae on behalf of Appellant.

California Women's Law Center, Chelsea Mutual, Elise Brumbach, for Amici Curiae on behalf of Appellant.

Hathaway Parker, Mark M. Hathaway, and Jenna E. Parker, Los Angeles, for Plaintiff and Respondent.

Munger, Tolles & Olson, Hailyn J. Chen, Los Angeles, and Teresa Alexandra Reed Dippo, San Francisco, for Defendant and Respondent.

TUCHER, P.J.

John Doe filed a petition for writ of mandate against the Regents of the University of California (the University), seeking to set aside the University's decision to discipline John for sexually assaulting Jane Roe.¹ The trial court granted the petition, finding John was not afforded procedural due process during the University's investigation of Jane's complaint. Jane, who was not a party in John's writ case, moved to vacate the mandate order on the ground that the order is void because she did not receive notice of, and an opportunity to participate in, the writ proceeding. The trial court denied Jane's motion. We acknowledge that Jane's interests were affected by the mandate proceeding, such that she may have been a real party in interest or a necessary party, but she has not established that she was an indispensable party. Nor has she established that the absence of even an indispensable party is grounds to void a judgment. We accordingly affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Incident and University Investigation

At the beginning of September 2015, John and Jane were friends and undergraduate students at the University of California, Santa Barbara (UCSB). On September 7, they went to a party together and then had a sexual encounter. The next day, a dispute arose about whether the encounter was consensual. Jane filed a police report about the incident, which led to a criminal investigation but no criminal charges.

Thirteen months after the alleged assault, on October 10, 2016, Jane filed a complaint about John with UCSB's Title IX and Sexual Harassment Policy Compliance Office. Title IX refers to Title IX of the Federal Education Amendments of 1972, 20 U.S.C. § 1681 et seq., which "prohibits sex discrimination under any education program or activity receiving federal funds." ( Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 598, 84 Cal.Rptr.3d 285.) Title IX has been "applied to require universities to investigate allegations of sexual misconduct involving students." ( Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1215, fn. 2, 241 Cal.Rptr.3d 146.)

Jane's complaint was assigned to investigator Kristi Johnson who interviewed Jane and obtained a list of witnesses from her. On October 31, 2016, John was notified about the pending investigation. In January 2017, Johnson left UCSB, and the matter was reassigned to investigator Brian Quillen.

Quillen interviewed John on May 17, 2017, which was the first time that a UCSB representative interviewed John about the incident. On May 24, after the fact-finding phase of UCSB's investigation was almost completed, Quillen met with John for an oral "debriefing" interview. During that meeting, Quillen provided verbal summaries of witness statements and John proposed questions for Quillen to ask Jane. The next day, UCSB Investigator Yahyavi interviewed Jane and asked her John's questions.

On August 9, 2017, Quillen submitted a report to the University's Office of Judicial Affairs (OJA). Quillen's report summarizes evidence collected during the investigation and contains express findings of fact and recommendations. Quillen found that John was aware, or should have been aware, that Jane was incapacitated during their sexual encounter. Quillen also found that John fabricated audio recordings that he represented to be Jane giving consent to the encounter. Quillen recommended that the OJA decide that John sexually assaulted Jane and suspend John for three years.

On August 24, 2017, the OJA issued a decision that adopted Quillen's findings and recommendation. John appealed the OJA's decision to UCSB's Interpersonal Violence Appeal Review Committee. As grounds for appeal, John alleged procedural errors, findings unsupported by substantial evidence, and a disproportionate punishment.

In October 2017, John submitted questions that he wanted the Review Committee to ask witnesses at the hearing on his appeal, which was held later that month. The only witnesses who appeared at the hearing were John, Jane, investigator Quillen, and OJA representative Suzanne Perkins. The Committee asked Quillen and Perkins for answers to John's questions. The Committee did not ask Jane questions, concluding that John's questions of her were outside the scope of his appeal.

On November 13, 2017, the Review Committee denied John's appeal and upheld his suspension.

II. John's Writ Petition

In January 2018, John filed a petition against the University, seeking a writ of mandate under Code of Civil Procedure, section 1094.5 or, in the alternative, under section 1085.² John alleged that UCSB's disciplinary action against him was invalid because the University did not grant him a fair hearing, failed to proceed in the manner required by law, and made a decision unsupported by the evidence. Seeking independent review, John alleged he was denied his right under Title IX to continue his education without the stigma of having been found responsible for a sexual assault. John's petition names as respondent only the Regents of the University of California; Jane Roe is described as a "[n]on-party."

In January 2019, the trial court granted John's petition, in a 41-page order directing the University to set aside its decision against John. As a preliminary matter, the court construed John's pleading as a petition for a writ of mandate under section 1085, rather than one for administrative mandamus under section 1094.5. The court reasoned that " ‘ordinary mandate’ " is used to review agency decisions made without an evidentiary hearing. (Citing McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1785, 52 Cal.Rptr.2d 466.) Here, the Regents had acknowledged that UCSB's procedure for investigating sexual violence and sexual harassment complaints involves "a single investigator who makes factual findings, a single [administrator] at the OJA who makes a decision without a hearing, and an appeal board that reviews the decision for substantial evidence." However, UCSB's process did produce a defined record, which the University had filed with the court, and the court used the evidence in that record to review John's claims.³

John's first claim was that UCSB's process was unconstitutional because it did not afford John the right to question Jane. Recognizing that the precise requirements of due process depend on the context, the court found that in this case, the University was required to provide John an "effective opportunity to present questions to [Jane] in front of the finder of fact" because of "the felony level nature" of the charge against John, the "importance of the relative credibility" of Jane and John, and the "seriousness of the potential consequences" of the University's decision.

The procedures followed in this case did not meet that standard, the court found. OJA, although it was the decisionmaker, was not the finder of fact. OJA relied on the facts as found by investigator Quillen,⁴ and neither he nor John was present when investigator Yahyavi presented John's questions to Jane. As a result, the court concluded, UCSB's process was not constitutionally adequate for resolving Jane's complaint of sexual assault; it did not afford "the minimum due process opportunity to cross-examine required by the constitution." And the error was prejudicial because cross examination of Jane and perhaps other witnesses could have led to a different result, the court concluded.

John's second material claim was that the University failed to follow its own policies requiring an investigation that is impartial, thorough, timely and fair. The trial court found that the investigation was impartial and sufficiently thorough, but it was not completed in a timely manner, nor was it fair, given the seriousness of the charge. The court found the procedure to be unfair in several respects, including two due process violations so serious they amounted to structural error. First, one person served as both investigator and factfinder, creating an unacceptable " ‘record exclusivity’ " problem, in that "the investigator is the only person who has seen or heard the evidence" on which the factfinder relies. Second, this problem was exacerbated here because different investigators interviewed and evaluated the credibility of Jane and John, so there was no single finder of fact.

Finally, the court found that the University's record of the proceeding contained substantial evidence supportive of investigator Quillen's findings. Nevertheless, because of the due process violations, the court granted the petition for a writ of mandate directing the University to set aside and vacate the disciplinary decision against John. In directing John to prepare a proposed judgment, the court ordered that "[t]he judgment must not interfere with the discretion of the [University] regarding further proceedings."

On February 22, 2019, the court entered judgment and issued the peremptory writ of mandate. When the judgment was not appealed, it became final.

III. Jane...