Judge: Curtis A. Kin, Case: 22STCP03907, Date: 2023-11-14 Tentative Ruling

Hon. Curtis Kin The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 22STCP03907    Hearing Date: November 14, 2023    Dept: 82

            Petitioner John Doe petitions for a writ of mandate directing respondent University of Southern California to set aside a decision finding that petitioner engaged in sexual misconduct and suspending petitioner for three years.  

I.       Factual Background

            This proceeding concerns two incidents of alleged sexual misconduct by petitioner John Doe against Jane Doe. Petitioner and Jane Doe were students at respondent University of Southern California. (Pet. ¶¶ 1, 4.) On September 5, 2021, petitioner allegedly engaged in sexual intercourse with Jane without her consent. (Pet. ¶ 15.) On September 17, 2021, during a party in Jane’s dormitory suite, petitioner allegedly touched Jane’s hips without her consent. (Pet. ¶ 15.)

            As part of the investigation into Jane’s allegations, petitioner was interviewed on January 31, 2022, and April 13, 2022. (Pet. ¶ 16.) Petitioner told the investigator that, prior to the September 5 incident, he and Jane developed a friendship and made out and engaged in intimate touching. (Pet. ¶ 17.) Prior to September 5, 2021, he and Jane purportedly unsuccessfully attempted sexual intercourse. (Pet. ¶ 17.) Petitioner maintained that the September 5 encounter and events leading up to the encounter were consensual. (Pet. ¶ 17.)

            According to petitioner, on September 7, 2021, Jane told him that she no longer wanted a sexual relationship with him. (Pet. ¶ 17.) On September 17, 2021, Jane allegedly gave approval to a mutual friend to invite petitioner to the party. (Pet. ¶ 17.) Petitioner maintains that he avoided Jane at the party. (Pet. ¶ 17.)

            Because petitioner was accused of sexual violence and faced expulsion, respondent’s policies required a hearing before an independent hearing officer. (Pet. ¶ 21.) The hearing on Jane’s allegations took place from August 8 to 10, 2022. (Pet. ¶ 23.) Petitioner asserted that Jane consented to all sexual conduct. (Pet. ¶ 23.)

On August 31, 2022, Hearing Officer Amanda Ames issued a report finding that the allegations of Sexual Assault on September 5 and Harassment on September 17 were proved by a preponderance of the evidence. (Pet. ¶ 24.) The Hearing Officer determined that petitioner violated the Title IX Policy against sexual assault and harassment and Student Conduct Code 11.33.A’s prohibition against unauthorized entry or presence at University premises. (Pet. ¶ 24.)

            Petitioner alleges that the Hearing Officer ignored substantial exculpatory evidence and unreasonably resolved inconsistencies and implausible evidence in Jane’s favor. (Pet. ¶ 25.) The Hearing Officer allegedly applied a higher burden of proof to petitioner, forcing petitioner to prove his innocence. (Pet. ¶ 25.) With respect to the September 5 incident, which had no corroborating evidence, the Hearing Officer arbitrarily discounted petitioner’s credibility, finding Jane more credible. (Pet. ¶ 26.) With respect to the September 7 incident, the Hearing Officer ignored evidence that Jane allowed petitioner to attend the party. (Pet. ¶ 26.)

            Petitioner was initially expelled. (Pet. ¶ 27.) Petitioner appealed the Hearing Officer’s decision. (Pet. ¶ 28.) With respect to Hearing Officer’s determination of violations, the appeal was denied. (Pet. ¶ 28.) With respect to the sanction, the expulsion was modified to a three-year suspension. (Pet. ¶ 29.)

II.      Procedural History

            On October 31, 2022, petitioner filed a Petition for Writ of Administrative Mandate.  On February 23, 2023, the Court (Hon. Mary Strobel) scheduled the trial date for November 14, 2023, set a briefing schedule in connection therewith, and ordered petitioner to lodge the administrative record on the same date the reply brief is filed.  (2/23/23 Minute Order.)

On September 18, 2023, petitioner filed an opening brief. On October 18, 2023, respondent filed an opposition. On October 20, 2023, respondent filed an amended opposition. Petitioner did not file a Reply and did not lodge the administrative record with the Court.

III.     Analysis

            As a preliminary matter, petitioner invokes CCP § 1085 as an alternative ground for mandamus. (Pet. at 1:20-22, ¶¶ 6, 38.) However, petitioner does not argue in the opening brief why he is entitled to relief under CCP § 1085. Accordingly, any claim under CCP § 1085 is forfeited. (See Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.)

The petition is also brought under CCP § 1094.5. (Pet. at 1:19-20, ¶¶ 37-39; Prayer for Relief ¶ 3; OB at 4:17-6:15.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “‘prejudicial abuse of discretion.’ ” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) 

As noted above, on February 23, 2023, the Court set the petition for hearing on November 14, 2023. (2/23/23 Minute Order.) Petitioner was ordered to lodge the administrative record on the same day the reply brief is filed (15 days prior to the hearing date). (2/23/23 Minute Order.) Petitioner has not presented an administrative record. The operative Petition does not contain any exhibits which could be deemed the complete administrative record or part of the administrative record.  

            Petitioner’s grounds for seeking a writ of administrative mandate require the Court to review the administrative record. In the opening brief, petitioner argues that the Hearing Officer was not neutral and ignored petitioner’s assertions regarding his reasonable belief of Jane’s consent. Citing to portions of the administrative record, petitioner also argues that the Hearing Officer’s finding that petitioner committed sexual assault and harassment is not supported by the evidence. With respect to the sanction, petitioner contends that it is excessive because he submitted character references and he showed some remorse during the hearing, albeit without a full confession. The adjudication of petitioner’s claims necessarily requires review of the administrative record.  None of petitioner’s grounds for seeking administrative mandate pose a question of law for which review of the administrative record would not be required.

Because petitioner has not presented an administrative record, petitioner fails to satisfy his burden of proof under CCP § 1094.5. 

V.      Conclusion

            The petition is DENIED.