Doe v. White CA2/3 ( 2023 )

Filed 5/8/23 Doe v. White CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
JOHN DOE, B314030
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 20STCP02944
TIMOTHY P. WHITE et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Hathaway Parker, Mark M. Hathaway and Jenna E.
Parker for Plaintiff and Appellant.
California State University Office of General Counsel,
Susan Westover and William C. Hsu for Defendants and
Respondents.
_______________________________________
INTRODUCTION
John Doe and Jane Roe1 met during their freshman year at
California Polytechnic State University, San Luis Obispo (Cal
Poly). They soon began a sexually active relationship, which
lasted for several months. After they ended their relationship,
Jane accused John of sexual misconduct and dating violence.
After Cal Poly investigated Jane’s accusations, the school held a
hearing at which John and Jane appeared, testified, and posed
questions to each other, which were asked by the hearing officer.
The hearing officer found John committed three of the nine
alleged acts of misconduct and recommended, among other
things, that the school suspend John for one academic year. The
school adopted the hearing officer’s findings and recommended
sanction. Following an unsuccessful administrative appeal, John
petitioned the trial court for an administrative writ of mandate
seeking to overturn Cal Poly’s decision, which the court denied.
John appeals, arguing he did not receive a fair disciplinary
hearing and that substantial evidence does not support the
hearing officer’s findings of misconduct or Cal Poly’s sanction
decision. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Cal Poly’s Sexual Misconduct Policies
The California State University (Cal State) system has
adopted a series of executive orders establishing the policies and
1For privacy purposes, we use the names “John Doe” and “Jane Roe” to
refer to the parties involved in the underlying disciplinary proceedings.
We hereafter refer to them as “John” and “Jane.”
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procedures that schools in the system, such as Cal Poly, must
employ to investigate and adjudicate allegations of sexual
misconduct. In 2016, Cal State adopted Executive Order 1097
(2016 Executive Order), which includes substantive policy
provisions that prohibit dating violence and sexual misconduct of
any kind. That order includes the following definitions that are
relevant here.
Sexual misconduct includes “[e]ngaging in any sexual
activity without first obtaining Affirmative Consent to the
specific activity.” Affirmative consent is defined as “an informed,
affirmative, conscious, voluntary, and mutual agreement to
engage in sexual activity.” Silence does not constitute affirmative
consent. Nor does affirmative consent exist when the accused
student “knew or reasonably should have known that the [other]
person was unable to consent to the sexual activity” because the
other person was “asleep or unconscious” or was “incapacitated
due to the influence of drugs, alcohol or medication, so that the
[other] person could not understand the fact, nature or extent of
the sexual activity.” And the other person’s consent to sexual
activity on one occasion does not constitute consent on another
occasion.
Dating violence is defined as “abuse committed by a person
who is or has been in a social or dating relationship of a romantic
or intimate nature with the victim.” Abuse means “intentionally
or recklessly causing or attempting to cause bodily injury or
placing another person in reasonable apprehension of imminent
serious bodily injury to self or another.”
In 2019, Cal State revised Executive Order 1097 (2019
Executive Order). Under the 2019 Executive Order, a complaint
of sexual misconduct or dating violence is investigated and
3
adjudicated under the revised order’s procedures, while the
substantive question of whether a student engaged in dating
violence or sexual misconduct is determined under the policies
and definitions in effect at the time the incidents occurred.2
If a school official receives a complaint of sexual
misconduct, the school must conduct an investigation, which
could culminate in a hearing. If a hearing is held, the hearing
officer must determine whether the accused student violated Cal
State’s policies under a preponderance of the evidence standard
of proof. At the hearing, each party is allowed no more than 10
minutes for an opening statement, and neither party is allowed to
make closing statements.
If the hearing officer finds the accused student committed
misconduct, she proposes a sanction, which is forwarded to the
school’s president, who may adopt the proposed sanction, adopt a
different sanction, or altogether reject a sanction. The president’s
decision is forwarded to the parties, who have a right to appeal
that decision to the Cal State’s Chancellor’s Office.
2. Jane and John’s Relationship
Jane and John met in early October 2017, while they were
freshmen at Cal Poly. On October 7, they went to the beach before
returning to John’s room, where they kissed and, eventually, had
sex. After that night, Jane and John began seeing each other
regularly. They often had sex, and Jane would frequently sleep in
John’s room.
2 Because all the alleged incidents of misconduct in this case occurred
in 2017 and 2018, the 2016 Executive Order’s substantive policies
apply to John’s disciplinary proceedings.
4
In late December 2017, John sent Jane a text message, telling
her that he didn’t want to be in a serious relationship. Jane initially
was upset, but she reached out to John a few days later, telling him
that she was open to trying to be friends.
On January 12, 2018, John invited Jane to a party hosted by
the fraternity he was pledging. Jane and her roommate, McKenzie
Harrison, attended the party together, before which they drank
several shots of vodka. Jane and John talked at the party before
returning to John’s room, where they had sex. Jane slept in John’s
room several nights the following week.
On January 20, 2018, John took Jane to the Install Formal, a
dance sponsored by his fraternity. Harrison also attended the dance
with another student. While Jane and Harrison got ready in their
room, they drank several shots of vodka. They then went to John’s
room, where they each had several more shots. In all, Jane had five
or six shots of vodka before she and John went to the dance. She
didn’t drink any more alcohol that night.
After the dance, Jane and John returned to John’s room,
where they had sex before falling asleep. Later that night, Jane
woke up to John trying to penetrate her vagina with his penis. Jane
was lying on her side, and John was behind her. Once John
penetrated Jane’s vagina, he turned Jane onto her stomach so she
couldn’t move. Jane was confused about what was happening
because she still felt drunk and had just been in a deep sleep. When
Jane asked, “wait, what are you doing?”, John replied, “I’m still
turned on, … I want to have sex with you again.” Jane told John
that she didn’t want to have sex, but he ignored her and continued
to penetrate her. Jane remained silent until John finished because
she was “confused” and “frozen.” Jane left in the morning, but she
sent John a text message that evening asking if she could take a
nap in his room the next day after one of her final exams.
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On February 3, 2018, John and Jane went to a party together.
They had sex twice at the party. John became angry and started
yelling at Jane while they were having sex the second time, after he
noticed she was menstruating.
On April 7, 2018, Jane and Harrison attended a fraternity
party, where they ran into John. John gave Jane several drinks
before they returned to his room. There, they had rough but
consensual sex.
On May 10, 2018, Jane attended another fraternity party
with Harrison. Jane drank several shots of vodka before the party,
and she had several more drinks at the party after running into
John. Jane hung out with John before they both returned to his
room, where they had rough but consensual sex.
On June 8, 2018, Jane and Harrison attended a Miami Vice
themed party hosted by John’s fraternity. Before the party, Jane
and Harrison had a couple of shots of vodka. At the party, Jane had
two or three cups of “jungle juice,” a mixture of juice and hard
alcohol. Jane and John danced and kissed at the party.
After returning to John’s room, Jane and John had
consensual sex before falling asleep. Jane later woke up on her
stomach, with John on top of her trying to penetrate her vagina
with his penis. John was using one of his hands to pin down Jane’s
neck while he used his other arm to spread open her legs. Jane told
John several times that she didn’t want to have sex, to which he
responded, “be quiet, you’re gonna wake [my roommates].” John
then pushed Jane’s face into the pillow to prevent her from talking,
causing her to suffer a black eye where his hand pressed against her
face. John continued to penetrate Jane while pinning down her
head. Jane was terrified and left the room shortly after John
stopped having sex with her.
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3. Jane’s Complaint and Cal Poly’s Investigation
In February 2019, Jane filed a complaint with Cal Poly’s
police department, alleging John forced her to have
nonconsensual sex on numerous occasions between October 7,
2017 and June 8, 2018. The police department forwarded Jane’s
complaint to Cal Poly’s Office of Equal Opportunity (OEO).
In April 2019, Cal Poly began investigating Jane’s
allegations against John. One of Cal Poly’s investigators
interviewed Jane, John, Harrison, and two students who were
John’s roommates during his freshman year. Before his
interview, John retained counsel, who provided the investigator
with over 200 pages of text messages that John and Jane sent
each other between October 2017 and February 2019.
On June 11, 2019, the investigator sent Jane and John a
preliminary investigation report detailing Jane’s allegations of
sexual misconduct and dating violence as well as the evidence
that the investigator had gathered. The report identified nine
charges of misconduct against John, including allegations that he
engaged in dating violence with Jane throughout their
relationship and had nonconsensual sex with her on January 20
and June 8, 2018. Jane and John were informed that they could
meet with the investigator to discuss the allegations and the
report, respond to the evidence discussed in the report, and to
present additional evidence. Both parties met with the
investigator.
Between July and August 2019, the investigator issued two
more preliminary investigative reports, which were sent to the
parties. After each report was issued, Jane and John were
allowed to meet with the investigator, present additional
evidence, and dispute the evidence discussed in each report.
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In October 2019, the investigator issued a final
investigation report detailing the gathered evidence and
identifying the material disputed facts. Jane and John received
copies of the final report.
4. The Disciplinary Hearing
Following two continuances—one requested by each
party—Cal Poly held a three-day remote hearing on Jane’s
complaint in May 2020. A neutral hearing officer presided over
the hearing. Before questioning any witnesses, the hearing officer
informed the parties that the hearing would be conducted under
the procedures set forth in the 2019 Executive Order. John
acknowledged that he was familiar with that executive order. The
hearing officer also explained that she would evaluate the
evidence presented at the hearing under the preponderance of the
evidence standard—i.e., whether it was more likely than not that
John violated Cal Poly’s policies.
The attorney who represented John during Cal Poly’s
investigation served as John’s advisor at the hearing. Before the
hearing, John submitted about 70 questions for the hearing
officer to ask Jane and the other witnesses. John did not call any
witnesses on his behalf, but he proposed additional questions for
the hearing officer to ask throughout the hearing.
The hearing officer gave John and Jane each 10 minutes to
make an opening statement. John used about three of his allotted
minutes. The hearing officer did not allow either party to make
closing statements.
Jane, John, Harrison, and several other Cal Poly students
testified at the hearing. The hearing officer allowed Jane and
John each to testify uninterrupted about their version of events
before asking her own questions. When the hearing officer asked
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John whether he recalled waking Jane up in the middle of the
night to have sex on January 20, 2018, he responded, “Never.
Never. I would never do that.” When asked about the June 8,
2018 incident, John provided a similar response: “At no point did
I ever have sex with [Jane] in the middle of the night at all, at
any time.”
The hearing officer asked most of John’s proposed questions
for Jane, excluding only those the hearing officer believed had
been asked and answered or were irrelevant, argumentative, or
harassing. John did not object to the hearing officer omitting any
of his proposed questions.
5. The Decision and Sanction
On June 12, 2020, the hearing officer issued a 52-page
statement of decision. The hearing officer found three of Jane’s
nine allegations were substantiated. Specifically, the hearing
officer found it was more likely than not that John had
nonconsensual vaginal intercourse with Jane on January 20 and
June 8, 2018 and that he committed dating violence by recklessly
causing Jane to suffer a black eye during the June 8 incident.
Although the hearing officer noted that Jane’s testimony was
“sometimes inconsistent and more expansive than what she
reported previously,” she found John’s “blanket statement of
‘never’ waking [Jane] in the middle of the night to engage in sex
lack[ed] credibility.” Specifically, John’s “emphatic ‘never’ rang
less than true, particularly when the Hearing Officer considered
all statements made during the three days of testimony
regarding the parties’ nine-month relationship.”
On June 24, 2021, the hearing officer recommended that
Cal Poly issue the following sanction against John: (1) a one-year
academic suspension; (2) mandatory participation in a “Men and
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Masculinity Program”; (3) a mandatory assessment by a licensed
mental health professional specializing in alcohol and drug use
and completion of any recommended treatment program; and (4)
compliance with a strict no contact order between John and Jane.
In issuing her recommendation, the hearing officer noted that
John never accepted responsibility, or showed any remorse, for
his conduct.
Cal Poly adopted the hearing officer’s recommended
sanction and suspended John from school for one year. John filed
an appeal with the Cal State Chancellor’s Office, which was
denied.
John filed a petition for writ of mandate against Timothy P.
White, in his capacity as Cal State’s Chancellor, and the Cal
State Trustees, seeking an order requiring Cal Poly to set aside
its decision, including the hearing officer’s findings and the
sanctions issued against John. The court denied John’s petition
and entered judgment in respondents’ favor.
John appeals.
DISCUSSION
1. Standard of Review
In an appeal from a judgment denying a petition for writ of
mandate, we apply the same standards of review as the trial
court. (Doe v. Regents of University of California (2016) 5
Cal.App.5th 1055, 1072 (Regents).) We determine “whether the
respondent has proceeded without, or in excess of, jurisdiction;
whether there was a fair trial; and whether there was any
prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd.
(b).) The respondent abuses its discretion if it has not proceeded
in the manner required by law, its decision is not supported by
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the findings, or its findings are not supported by the evidence.
(Ibid.) We independently review whether the administrative
proceedings were fair. (Regents, at p. 1073.)
2. John received a fair hearing.
John contends Cal Poly denied him a fair hearing because
(1) he was unable to effectively cross-examine witnesses and
present a defense; (2) the hearing officer improperly shifted the
burden of proof; (3) the hearing officer was biased and acted as an
advocate for Jane; and (4) he was prejudiced by unnecessary
delay. As we explain, each of these arguments lacks merit.
2.1. Applicable Law
Universities investigating and adjudicating student sexual
misconduct are not required to employ the same procedures and
safeguards used in criminal proceedings. (Regents, supra, 5
Cal.App.5th at p. 1078.) Still, universities must provide an
accused student notice of the allegations and a fair hearing at
which he has an opportunity to rebut those allegations. (Id. at p.
1077.)
While no particular form of hearing is required under
California law, courts have delineated a series of minimum
procedures universities must employ in student disciplinary
hearings. (Regents, supra, 5 Cal.App.5th at p. 1078; Doe v.
Westmont College (2019) 34 Cal.App.5th 622, 634–635
(Westmont).) A university must follow its own policies and
procedures. (Regents, at p. 1078.) Those procedures must afford
the accused student a hearing before a neutral adjudicator.
(Westmont, at p. 635.) The accused student must have the
opportunity to respond to charges and evidence against him, and
11
the university must provide him with the names of witnesses and
the facts to which each witness testifies. (Ibid.)
When resolution of the charges against the accused student
turns on the credibility of witnesses, the complaining student and
other important witnesses must appear before the adjudicator—
either in person, by video conference, or by some other means—to
allow the adjudicator to observe their demeanor. (Westmont,
supra, 34 Cal.App.5th at pp. 635, 638–639.) The complainant and
the accused student do not need to appear in the same room for
the hearing, however. (Ibid.) Additionally, while there is no
requirement that the accused student be able to directly cross-
examine the complainant and other witnesses, the accused
student must be given the opportunity to pose questions to the
complainant and other witnesses. (Regents, supra, 5 Cal.App.5th
at pp. 1084–1085.) The questions may be asked indirectly, such
as through pre-written questions read by the adjudicator.
(Westmont, at p. 635.) The adjudicator has discretion to omit
questions that are irrelevant, inflammatory, or call for answers
that are cumulative of other evidence already considered. (Doe v.
Occidental College (2019) 40 Cal.App.5th 208, 228 (Occidental).)
2.2. John was not denied the right to cross-examine
witnesses.
John argues he was denied the right to cross-examine
witnesses at his disciplinary hearing because he was unable “to
directly cross-examine [Jane] and other witnesses.” This
argument lacks merit.
As we just explained, an accused student does not have the
right to directly cross-examine the complainant and other
witnesses during a disciplinary hearing. (Westmont, supra, 34
Cal.App.5th at p. 638.) All that is required is that the accused
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student be given the chance to pose questions to the complainant
and other witnesses, questions which may be asked indirectly—
i.e., by the adjudicator. (Doe v. Allee (2019) 30 Cal.App.5th 1036,
1066 (Allee).)
That is exactly what happened here. The hearing officer
gave John several opportunities to pose questions to Jane and the
other witnesses. The hearing officer allowed John to submit
questions before Jane testified, most of which the hearing officer
asked. The hearing officer also offered John the opportunity to
submit follow-up questions in response to Jane’s testimony. John,
therefore, wasn’t denied the opportunity to cross-examine
witnesses at his disciplinary hearing.
2.3. John was not denied his right to present a
defense.
Next, John contends he was denied the opportunity to
present a full defense at his disciplinary hearing. Specifically,
John argues the hearing officer improperly cut short his opening
statement, denied him the opportunity to “present a defense case
or redirect or clarify his own testimony,” and did not allow him to
respond to evidence. This argument also lacks merit.
Per the 2019 Executive Order, the hearing officer gave
John and Jane each 10 minutes to present an opening statement.
According to the hearing officer, John only used about 3 of his
allotted 10 minutes. Nothing in the record suggests the hearing
officer cut short John’s opening statement.
John also was provided ample opportunities to present a
defense. During the investigatory phase, John was allowed to
respond to all of Jane’s allegations, including providing the
investigator with his version of the events that occurred during
his relationship with Jane. John gave the investigator the
13
evidence he believed supported his side of the story, including the
text messages he and Jane exchanged throughout their
relationship. John also was given the opportunity to review the
investigator’s reports, correct any of his statements in those
reports, and respond to evidence discussed in those reports.
At the disciplinary hearing, the hearing officer allowed
John to testify about his version of events without interruption
before she began questioning him. John proposed numerous
questions that the hearing officer asked Jane and the other
witnesses. And, before concluding the hearing, the hearing officer
gave John the chance to pose additional questions, respond to
Jane’s testimony, and to testify about any facts that had yet to be
addressed. Although the hearing officer did not allow John to give
a closing argument, she did not allow Jane to give one either.
Indeed, the 2019 Executive Order prohibits the parties from
given closing arguments at disciplinary hearings. John does not
cite to any authority requiring universities to afford accused
students the opportunity to give closing arguments at a
disciplinary hearing.
In short, the record does not support John’s claim that he
was denied the right to present a defense at his disciplinary
hearing.
2.4. The hearing officer did not misapply the
standard of proof.
John also contends the hearing officer misapplied the
preponderance of the evidence standard of proof at the
disciplinary hearing. We disagree.
John does not point to anything in the record suggesting
the hearing officer failed to apply the preponderance of the
evidence standard of proof. Indeed, the hearing officer repeatedly
14
acknowledged the preponderance of the evidence standard
throughout John’s disciplinary proceedings. For instance, at the
beginning of the hearing, she explained that she would apply the
standard to each of the charges against John. And, when
explaining her findings as to each charge, including the charges
she sustained, the hearing officer explained that she “examined
the evidence, assessed the credibility of the parties and the
witnesses, and weighed the evidence under a preponderance of
the evidence standard.”
John insists, however, that the hearing officer shifted the
burden of proof, requiring him to present evidence that would
establish it was more likely than not that he obtained Jane’s
affirmative consent before engaging in the charged sexual acts on
January 20 and June 8, 2018 and that he did not engage in
dating violence during the June 8 incident. Specifically, John
argues the hearing officer’s findings that “[t]here is no evidence
that the vaginal penetration was voluntary and mutual” shows
the hearing officer placed the burden of proof on John to show he
obtained Jane’s consent before having sex with her. The record
doesn’t support this claim.
Jane repeatedly testified that she never consented to
having sex with John during the January 20 and June 8, 2018
incidents because she either: (1) told John she didn’t want to
have sex; (2) was too intoxicated to consent to having sex with
John; or (3) was too confused to consent to sex because she was
coming out of a deep sleep when John penetrated her. Cal Poly,
therefore, presented affirmative evidence that would support a
finding that John did not obtain Jane’s consent before having sex
with her. And the hearing officer relied on this evidence in her
statement of decision when she sustained the sexual misconduct
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charges arising out of the January 20 and June 8, 2018 incidents.
The hearing officer’s observation that there was no evidence
showing the parties engaged in voluntary and mutual sex during
those incidents merely reflects the hearing officer’s view that
John failed to successfully rebut Cal Poly’s evidence; it does not
suggest the hearing officer improperly shifted the burden of
proof.
2.5. John has not shown the hearing officer was
biased.
John next contends the hearing officer was biased and
acted as an advocate for Jane because the hearing officer: (1)
ignored the fact that Jane “filed a false police report regarding
January 12, 2018 and May 19, 2018”; (2) failed to ask Jane
whether she asked John if she could nap in his residence the day
after the January 20, 2018 incident; (3) failed to follow up on
Jane’s April 14, 2018 text message telling John she wanted to
spend more time with him; (4) improperly modified some of
John’s proposed questions; (5) attempted to rehabilitate Jane’s
and Harrison’s testimony about the January 20, 2018 incident;
(6) allowed the investigator to identify any material differences
between the parties’ testimony and the statements they made
during the investigation; and (7) allowed officials from Cal Poly’s
Office of Equal Opportunity to “tell her how to sanction” John.
These arguments are not well-taken.
As a preliminary matter, John never argued at any point
below that the hearing officer was biased. He didn’t raise the
issue at the disciplinary hearing, in his administrative appeal, or
in the trial court. John has therefore forfeited any claim of
hearing officer bias by failing to raise that issue until this appeal.
(Occidental, supra, 40 Cal.App.5th at p. 225.)
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Nor did John object to many of the specific instances he
claims evidence the hearing officer’s bias. For instance, he did not
object when the hearing officer omitted any of his questions that
weren’t asked. Nor did he object to the hearing officer modifying
any of his questions. He has, therefore, forfeited any claim of bias
or error based on the hearing officer’s decision to omit or modify
any of his proposed questions (Occidental, supra, 40 Cal.App.5th
at p. 225.)
In any event, John hasn’t shown any error or bias
stemming from the hearing officer’s decision to omit some of his
questions. The hearing officer stated that she considered “[a]ll
documentary exhibits,” which includes the more than 200 pages
of text messages that John gave to the investigator, including
Jane’s January 21, 2018 text asking John if she could sleep in his
room. Thus, any response to John’s proposed question about
whether Jane sent that text message would have been
cumulative of the message itself.
As for John’s claim that the hearing officer failed to follow
up on Jane’s April 14, 2018 text message, the hearing officer did
ask Jane about that message. Specifically, the hearing officer
asked Jane, “on April 14, 2018, one week after you alleged John
sexually assaulted you, did you tell him that you wanted to spend
time with him and to cuddle with him?” When Jane confirmed
she sent that message, the hearing officer followed up, asking
Jane what she meant by “cuddles,” to which Jane replied that she
couldn’t remember.
John also never objected on the grounds that the hearing
officer improperly rehabilitated Jane’s or Harrison’s testimony.
For example, he didn’t object when the hearing officer followed up
on parts of Jane’s testimony, such as when the hearing officer
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sought clarification as to whether Jane meant she was too
incapacitated to provide consent when Jane testified that
although she consented the first time she had sex with John on
January 20, 2018, she “was drunk” at the time. By failing to
object, John has forfeited any claim of bias or error arising out of
the hearing officer’s efforts to clarify witness testimony.
(Occidental, supra, 40 Cal.App.5th at p. 225.)
Moreover, John didn’t object when the hearing officer
allowed the investigator to identify evidence presented at the
hearing that the investigator believed was materially different
from the evidence gathered during the investigation. Nor does
John point to any authority prohibiting a hearing officer from
eliciting such testimony during a disciplinary hearing. John has
therefore forfeited any claim of bias or error based on such
conduct. (Occidental, supra, 40 Cal.App.5th at p. 225.)
John also hasn’t shown the hearing officer erred or was
otherwise biased because she “ignored that Jane … filed a false
police report regarding January 12, 2018 and May 19, 2018.”
First, John points to nothing in the record establishing or
suggesting Jane filed a false police report. While the hearing
officer found Jane’s allegations arising out of the incidents that
occurred on January 12 and May 19 were unsubstantiated, that
does not mean the allegations were false. Second, John fails to
explain how the hearing officer’s refusal to acknowledge falsities
in Jane’s police report establishes the hearing officer was biased.
(See Allee, supra, 30 Cal.App.5th at p. 1060 [“A disciplinary
decision may not be invalidated solely on the basis of an inference
or appearance of bias.”]; Doe v. Occidental College (2019) 37
Cal.App.5th 1003, 1018 [“ ‘A party seeking to show bias or
18
prejudice on the part of an administrative decision maker is
required to prove the same “with concrete facts[.]” ’ ”].)
Finally, John forfeited any claim that the hearing officer
was somehow biased because she relied on a third-party’s
sanction recommendation because he did not raise that issue in
his administrative appeal or in the trial court. (Occidental, supra,
40 Cal.App.5th at p. 225.) In any event, John fails to explain how
the hearing officer’s reliance on a third-party’s sanction
recommendation evidences any bias or prejudiced him in any
manner. (See Cal. Const., art. VI, § 13 [no reversal if error did not
result in miscarriage of justice]; Code Civ. Proc., § 475 [no
judgment shall be reversed by reason of any error unless the
error was prejudicial and a different result would have been more
probable without such error].)
In sum, John has failed to show the hearing officer
harbored any bias against him.
2.6. John has not shown he was prejudiced by any
delay.
John argues Cal Poly unnecessarily delayed completing its
investigation of Jane’s allegations and in conducting his
disciplinary hearing. These arguments are meritless.
Under the 2019 Executive Order, a university has 120
working days from the date a Notice of Investigation is sent to
the parties to complete its investigation. As John acknowledges,
the investigator completed her investigation 108 days after Cal
Poly sent the parties a Notice of Investigation. Cal Poly,
therefore, did not delay in completing its investigation. In any
event, John does not explain how he suffered any prejudice as a
result of the investigation taking 108 days to complete.
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Nor has John shown he was prejudiced because Cal Poly
did not conduct his disciplinary hearing until more than a year
after Jane filed her complaint of sexual misconduct. Although the
hearing officer noted that some of the witnesses’ recollections of
events and specific details “may have been affected by the
passage of time,” John does not point to anything in the record
showing any delay affected the hearing officer’s findings that he
engaged in sexual misconduct on January 20, 2018 and sexual
misconduct and dating violence on June 8, 2018. For instance,
John doesn’t claim he was unable to adequately defend against
those charges because the passage of time affected his ability to
recall what happened on January 20 or June 8, 2018. Indeed, as
Cal Poly points out, John repeatedly and adamantly denied that
he ever woke Jane up in the middle of the night to have sex with
her.
3. Substantial evidence supports the hearing officer’s
findings.
Next, John contends the hearing officer’s findings that
some of Jane’s testimony was credible and that John engaged in
two acts of sexual misconduct and one act of dating violence are
not supported by the evidence. We are not persuaded.
We review the university’s substantive decision for
substantial evidence. (Doe v. Claremont McKenna College (2018)
25 Cal.App.5th 1055, 1065.) We do not weigh the evidence,
consider the credibility of witnesses, or resolve conflicts in the
evidence. (Regents, supra, 5 Cal.App.5th at p. 1073.) The
university’s findings come before us with a “ ‘strong presumption
as to their correctness and regularity.’ ” (Ibid.) Thus, if the
university’s decision is reasonable, we will not substitute that
decision with our own judgment. (Ibid.) We will only set aside the
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university’s findings if “ ‘no reasonable person could reach the
[same] conclusion.’ ” (Ibid.)
We must accept all the evidence that supports the
prevailing party, disregard all contrary evidence, and draw all
reasonable inferences necessary to uphold the university’s
findings. (Regents, supra, 5 Cal.App.5th at p. 1074.) Witness
credibility is an issue of fact for the fact finder, and “the
testimony of a single witness, even that of a party, is sufficient to
provide substantial evidence to support a finding of fact.” (Ibid.)
The hearing officer found John engaged in sexual
misconduct on January 20, 2018 and sexual misconduct and
dating violence on June 8, 2018. Substantial evidence supports
these findings.
As to the January 20, 2018 incident, Jane testified that she
and John went to his room after they attended a dance hosted by
his fraternity. Jane was still drunk when they got there.
Although they had consensual sex before falling asleep, Jane
woke up during the early morning hours to John penetrating her
vagina with his penis. Jane was confused about what was
happening because she had been in a deep sleep and still felt
drunk. Once she realized that John was having sex with her, she
said, “wait, what are you doing?” When John replied that he was
“still turned on,” Jane told him that she wasn’t in the mood for
sex. John continued to have sex with Jane despite her protest.
From that point on, Jane remained silent because she was
“confused and frozen.” This evidence amply supports a finding
that, at the very least, John did not obtain Jane’s affirmative
consent before having sex with her.
Substantial evidence also supports the hearing officer’s
finding that John engaged in sexual misconduct on June 8, 2018.
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After John and Jane attended a Miami Vice themed party, they
returned to his room, where they had consensual sex before
falling asleep. Jane later woke up on her stomach, with John on
top of her, penetrating her vagina with his penis. According to
Jane, John was pinning down her neck with one of his arms while
he used his other arm to spread open her legs. Jane told John
several times that she didn’t want to have sex, but he didn’t stop
penetrating her. Instead, he told her to “be quiet” because she
would wake his roommates. John then pushed Jane’s face into a
pillow to keep her from making noise while he continued to
penetrate her. This evidence also clearly supports a finding that
John had sex with Jane without her consent.
And finally, substantial evidence supports the hearing
officer’s finding that John engaged in dating violence during the
June 8, 2018 incident. Jane testified that she suffered a black eye
as a result of John using his hand to push her face into a pillow
while he forced her to have sex with him.
John argues the hearing officer erred in relying on Jane’s
testimony. According to John, Jane’s testimony was not
believable in light of (1) the numerous text messages she sent
him throughout their relationship expressing satisfaction with
some of their sexual activities and her desire to make their
relationship more serious; (2) Jane’s confusion about when some
of the alleged instances of misconduct and dating violence
occurred; and (3) Jane’s testimony that contradicted some of the
statements she made during the pre-hearing investigation. To
support his argument, John points out that the hearing officer
noted in her statement of decision that while Jane’s “answers to
questions at the hearing were specific and detailed, they were
sometimes inconsistent and more expansive than what she
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reported previously.” John contends that because the hearing
officer found some of Jane’s statements lacked credibility, the
hearing officer should have discredited all of Jane’s testimony.
This argument lacks merit.
It is well-settled that appellate courts will not second guess
the trier of fact’s credibility determinations. (Regents, supra, 5
Cal.App.5th at p. 1077 [“credibility is for the fact finder to
determine”].) The hearing officer in this case observed Jane and
John testify and compared the parties’ testimony to their
statements during the pre-hearing investigation. Thus, the
hearing officer was in the best position to evaluate the witnesses’
credibility, including the credibility of Jane’s testimony. That the
hearing officer discredited parts of Jane’s testimony does not
mean she was required to discredit all of Jane’s testimony. Fact
finders commonly find some aspects of a witness’s testimony
credible while disregarding other parts of that testimony.
4. Substantial evidence supports Cal Poly’s sanction
decision.
Finally, John challenges Cal Poly’s decision to suspend him
for one academic year and require him to complete a drug and
alcohol assessment. We review a university’s decision to
discipline a student for engaging in sexual misconduct and dating
violence for abuse of discretion. (Regents, supra, 5 Cal.App.5th at
p. 1106.) We do not substitute our discretion for that of the
university. (Ibid.) “ ‘It 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.’ ” (Ibid.)
As we just explained, substantial evidence supports the
hearing officer’s findings that John had sex with Jane without
her consent on two occasions and gave her a black eye during one
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of those occasions while trying to ensure she wouldn’t alert other
people in the room that he was having sex with her. Due to the
serious nature of each of those acts of misconduct, as well as
John’s refusal to accept responsibility or show remorse for any of
his conduct, Cal Poly was well within its discretion to suspend
John for one year.
Cal Poly also acted within its discretion when it required
John to complete a drug and alcohol program. John was only a
teenager during the events leading to this case. He admitted
throughout the hearing that he and Jane frequently consumed
alcohol before they had sex, including leading up to the incidents
on January 20 and June 8, 2018. It was, therefore, more than
reasonable for the school to conclude that John had issues with
alcohol use and that alcohol was a contributing factor when he
had sex with Jane without her consent and gave her a black eye.
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DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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