Doe v. The Regents of Univ. of Cal.

1

JOHN DOE, Petitioner and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA Respondent.

A164398

California Court of Appeals, First District, First Division

February 13, 2024

NOT TO BE PUBLISHED

(Alameda County Super. Ct. No. RG20082204)

GETTY J. ^[*]

In September 2020, John Doe (Doe) was dismissed from the University of California, Berkeley (UCB) for violating its policy against sexual violence and harassment. He challenged the decision, ultimately filing a petition for a writ of administrative mandate against the Regents of the University of California (Regents). Doe alleges that he was denied a fair and impartial hearing because UCB utilized a "sole investigator/fact finder model" and failed to provide him with a "neutral adjudicator." He additionally claims that the UCB investigator failed to perform a fair and thorough investigation by failing to obtain an expert toxicology opinion. Finally, Doe contends that the findings of the hearing officer were not supported by substantial evidence.

The trial court considered and rejected all of these arguments denying the writ petition. Having conducted our own review of the administrative record, we affirm.

I. BACKGROUND

On October 18, 2019, UCB's Office for the Prevention of Harassment and Discrimination (Title IX Office) received a complaint from student Jane Roe (Roe) alleging that student Doe had sexually assaulted her at her off-campus apartment on August 20, 2019.^[1] Pursuant to Title IX and the USB Policy on Student Conduct and Discipline (Student Conduct Code), the Title IX Office commenced an investigation.

A. UCB Policies and Procedures Related to Discipline in Cases Involving Sexual Violence or Sexual Harassment

UCB adopted the Student Conduct Code which incorporates several Appendices. The Student Conduct Code outlines prohibited conduct, resources for students, procedures by which a misconduct allegation is investigated and adjudicated, and possible sanctions. Appendix E is incorporated into the Student Conduct Code and reflects a system-wide policy adopted by the Regents to address allegations of sexual violence and harassment on all University of California campuses.

UCB's Title IX Office is responsible for receiving and responding to complaints regarding sexual violence or sexual harassment. The receipt of a complaint can trigger an investigation, overseen by the Title IX Officer, in which an investigator is designated and charged with conducting "a fair, thorough, and impartial investigation." If a formal investigation of a complaint will be conducted, notice of the charges is sent to the complainant and respondent. The notice includes information about the charges, describes a five-stage investigative and adjudicative process, and advises the parties about their rights and available support resources. Included with the notice is information regarding the ability of the complainant and respondent to submit questions for the investigator to ask witnesses or the other party.

The notice also advises that any investigative findings will be based upon the preponderance of evidence and describes the type of evidence that is considered by the investigator. Upon completion of the preliminary investigation and findings, the complainant and respondent are each given a copy of the Report of Investigation (ROI) and provided further opportunity to respond before the ROI is finalized.

Where the investigation results in a recommendation of suspension or dismissal, as was the case here, a hearing to contest the preliminary investigation is automatically triggered. A separate and "appropriately trained" hearing officer is designated, who may be either a university employee or an outside contractor. The hearing officer and a hearing coordinator (who manages the procedural and administrative aspects of the hearing) conduct separate pre-hearing meetings with each party to discuss the hearing process and address questions. Formal rules of evidence and procedure do not apply to the hearing, and evidence will be received if the hearing officer considers it to be relevant and reliable. Under the policies, the investigative file is admitted into evidence at the hearing. In determining whether a policy violation has occurred by a preponderance of the evidence, the hearing officer considers the investigative file as well as any evidence received at the hearing. The hearing officer's findings are then forwarded to the Title IX Office and to Student Conduct for a determination as to the appropriate sanctions to be imposed. The complainant and respondent will receive notice of the determination and any sanction, as well as information regarding the right to appeal. An appeal is limited to three grounds: whether there was procedural error in the hearing that materially affected the outcome; whether the determination regarding policy violation was unreasonable based on the evidence before the hearing officer; and/or whether the sanctions were disproportionate to the hearing officer's findings.

The decision on appeal is final.

B. The Incident on August 20, 2019

Doe and Roe knew each other as they had the same major and mutual friends, including Roe's ex-boyfriend. On the evening of August 20, 2019, Doe and Roe met for dinner. After dinner, they talked about going to a cafe or pub, but ultimately returned to Roe's apartment. Roe's roommate was not home. Roe's bedroom was the living room, with her bed located in the corner near a wall.

Doe and Roe agree that they both had some alcoholic drinks. Doe drank between four to five glasses of whiskey, while Roe drank one to three beers. Doe and Roe also agree that, at a later point, Doe placed his penis in Roe's vagina. Roe contends that she did not consent; Doe contends she did.

According to Roe, she is a" 'lightweight'" and, after drinking the beer, she felt intoxicated. She asked Doe when he was leaving and initially told him to leave at 10 p.m. but later told him by 11 p.m. She was wearing a dress and put on pajama bottoms under her dress. Due to her intoxication, she fell while trying to put on her pajama pants, and stumbled while walking, knocking over a shoe rack. Roe says that Doe remained in her apartment while she laid down on the floor and fell asleep. At one point, she woke up and saw Doe lying on her bed. Doe suggested she join him on the bed to sleep and stated that he was going home soon. As Doe was friends with Roe and they had spent over 24 hours together in the past, she did not feel uncomfortable. Doe woke Roe up later to suggest they watch a movie, and she was able to get her laptop and unlock it after several attempts. Roe recalled falling back to sleep but woke up to find Doe touching her breasts over her clothes. She felt Doe put his hand in her underwear and touch her genitals. Roe recalls pushing Doe away and moving her body against the wall to stay away from Doe but feeling too intoxicated to stop it. She shook her body and frowned and made a sound like" 'nnng.'" Roe recalled Doe turned her body to face his, suddenly took her pants off and penetrated her vagina with his penis. Roe reported there was no foreplay or kissing and that it happened "really, really fast in a short amount of time" and without all of her clothes being taken off. Roe recalled that as she failed to cooperate, Doe moved her body to try to penetrate her from a different position.

Doe recalls the night differently. Doe had seen Roe far more intoxicated than she was that night. Doe acknowledged Roe was" 'midways' drunk" or "tipsy" but that she was communicative and responsive. Doe never saw Roe pass out or become unconscious, and stated she walked normally and maintained a conversation. Doe acknowledged that, at some point, he and Roe laid down on her bed together. According to Doe, he asked Roe if she wanted to watch a movie, she agreed, and together they laid on the bed and watched YouTube. Doe noticed Roe was not watching the laptop but looking at her phone. After five minutes, Doe asked Roe if she wanted to take her pants off, and she responded by removing her pants and underwear as did Doe. Doe observed the removal of clothing "happened naturally." Doe and Roe mutually touched each other's bodies, kissed each other's cheeks or necks, and ultimately Doe got on top of Roe and had sex while Roe wrapped her arms around his back. Doe agreed that he and Roe did not kiss each other on the mouth. As additional evidence of consent, Doe told the investigator that he touched Roe's vagina and found it lubricated. Doe described Roe as initially participatory, that she verbally responded "yes" to indicate consent and maintained eye contact. Doe acknowledged that after 15 minutes, Roe did not seem to be enjoying sex, and when Doe asked" '[d]o you want this to stop,'" she said yes. Doe maintained that he ceased all sexual activity with Roe at that point. When Doe asked Roe if she wanted him to go home, she said yes, so Doe put his clothes on and returned to his own apartment.

After the incident, Doe and Roe exchanged numerous phone calls and text messages about what happened. Many of the written communications were considered as evidence. The substance of the communications was Roe's assertion to Doe that she had not consented to engaging in sex with him. Doe's responses largely acknowledged that Roe was unhappy, that Doe was sorry she did not like it, but that they had" 'both wanted it.'" Roe demanded that Doe secure the Plan B pill for her, which he did. Shortly after, Doe came with Roe's ex-boyfriend to pick up the ex-boyfriend's belongings at Roe's house. He took a picture of himself doing so and posted it to his social media.

On August 29, 2019, Roe filed a police report with the Berkeley Police Department. No...