Judge Curtis A. Kin, Case Number: 23STCP00014, Date: 2024-03-21 Tentative Ruling

Petitioner John Doe petitions for a writ of mandate directing respondents University of Southern California; Monique S. Allard, in her official capacity as Interim Vice President for Student Affairs; and Catherine Spear, in her official

capacity as Title IX Coordinator and Vice President of the Office for Equity, Equal

Opportunity, and Title IX to set aside a decision finding that petitioner engaged in sexual misconduct and expelling petitioner.

This proceeding concerns an incident between petitioner John Doe and non-party Jane Roe while they were having sexual intercourse.

On October 15, 2021, Roe and her friend MM met petitioner at a nightclub. (AR 89, 98, 632-35, 918, 1110.) All three of them were students at the University of Southern California (“USC”). (AR 87, 636, 936.) Roe and petitioner began dancing together and making out. (AR 89, 106, 693-97, 924, 926-28, 930, 1110.) After some time, Roe told her friend MM that she was leaving with petitioner, and all three took a Lyft back to MM’s residence. (AR 89, 697, 700-02, 933-36, 1111.) From there, Roe and petitioner rode an electric scooter to the Sigma Nu fraternity house where petitioner lived. (AR 89–90, 107, 703–04, 937, 1111.)

Roe and petitioner made their way to petitioner’s bedroom, where they began consensual sexual intercourse. (AR 90, 644-50, 940-41, 954-55.) After several minutes, they changed positions to where Roe was facing away from petitioner and resumed vaginal intercourse. (AR 90, 650-54, 985-86, 1111.) It was at this point that petitioner began to touch and enter Roe’s anus with his fingers. (AR 90, 120, 655, 1112.) Roe moved to physically signal petitioner to stop. (AR 90-91, 121, 655, 1112.) When this did not work, Roe tried to lift herself up to get petitioner off her. (AR 655-56, 1112.) This was difficult for Roe, because petitioner had his entire upper body weight on Roe’s back and buttocks. (AR 657, 989, 1112.) As Roe began lifting herself, petitioner removed his penis from her vagina and began inserting it into her anus. (AR 121, 655-56, 986-87, 1112.) Roe jolted up and out of petitioner’s bed. (AR 121, 655-56, 986, 1112.) Roe then explicitly told petitioner that she did not want to engage in anal intercourse and began to reach for her clothes to get dressed and leave. (AR 91, 122, 656-57, 986, 992, 1112.)

Petitioner was apologetic and asked Roe to stay and assured her that they would not engage in anal intercourse. (AR 122, 657, 1112.) Roe agreed to stay and try again with Petitioner. (AR 91, 657, 1112.) They went back to petitioner’s bed; petitioner retrieved another condom; and they resumed vaginal intercourse. (AR 91, 129, 662-64, 1113.) Roe ended up on her stomach again with Petitioner placing his weight on her back and buttocks area. (AR 666–67, 1113.) Petitioner then removed his penis from Roe’s vagina and again inserted it into her anus an unknown number of times, according to Roe. (AR 91, 129-30, 664-67, 1113.) Eventually, Roe found the strength to push petitioner off her. (AR 91, 130, 667, 1113.) She stood up and said that she was “done” and “can’t do this anymore.” (AR 667.)

In a frenzy, Roe searched for her clothes in the dark. (AR 130, 667-68, 993.) When she could not find all of her clothes, petitioner offered her a sweater, and they walked downstairs together. (AR 91, 668, 993-94, 1113.) Petitioner made statements like, “What’s wrong, I didn’t mean to do anything to you.” (AR 668-69, 1113.) Roe just kept saying “It’s fine, it’s fine. I just need to go.” (AR 668-69, 993, 1114.) Petitioner offered to call Roe a Lyft, but Roe declined. (AR 669, 1114.) Roe wanted to leave as soon as possible. (AR 669.) They gave each other a hug goodbye, and Roe left Sigma Nu around 3:00 a.m. (AR 92, 669, 993-94, 1114.)

On October 16, 2021, Roe reported that petitioner sexually assaulted her to USC’s Department of Public Safety (“DPS”) and the Los Angeles Police Department (“LAPD”). (AR 92, 95, 145, 204-10, 213-14.) That day, DPS reported the incident to USC’s Office for Equity, Equal Opportunity, and Title IX (“EEO-TIX”). (AR 399-400.) Roe was also seen that day by the UCLA Rape Treatment Center where an anal laceration was found by the examiner. (AR 92, 165-76.)

On October 19, 2021, Roe met with EEO-TIX to discuss her reporting options and supportive measures available. (AR 83.) Roe reported that she was not concerned for her physical safety and did not have concerns about retaliation. (AR 83.)

On October 20, 2021, DPS issued a crime alert which stated: “The university has received a report of sexual assault at the Sigma Nu fraternity house…. The university also has received reports of drugs being placed into drinks during a party at the same fraternity house, leading to possible drug-facilitated sexual assaults.” (AR 200.)

Also on October 20, 2021, respondent Catherine Spear, USC’s Vice President of EEO-TIX and Title IX Coordinator, sent petitioner a Notice of Emergency Removal informing him that, due to allegations by Roe of “nonconsensual sexual activity and physical violence,” he was immediately barred from the university campus. (AR 401-08, 1241-43.). Petitioner was allowed to continue taking courses asynchronously, i.e., by watching recordings of classes and completing assignments and exams without attending class, either in-person or remotely. (AR 1321-22.)

On October 21, 2021, petitioner denied the allegations against him and challenged the emergency removal. (AR 1249.) However, respondent Monique Allard, Interim Vice President for Student Affairs, denied his challenge on October 28, 2021, after having reviewed the risk factors posed by petitioner’s presence on campus. (AR 81, 1287-90, 1341-45.) Allard stated that petitioner’s assertion that he would not be a threat to safety did not provide a basis for lifting an emergency removal order. (AR 80.) Allard also noted that it was unknown whether the allegations against petitioner were unrelated to the other allegations against the fraternity given that petitioner was the Sigma Nu chapter president and leader of that student organization. (AR 81.)

Members of the USC community gathered at the Sigma Nu fraternity house on or around October 21, 2021 in protest. (AR 512.) The fraternity house was vandalized with graffiti, including petitioner’s name written on the wall; protestors entered the house (according to petitioner); and the house was covered in various signs. (AR 490-91, 525.) Commenters on social media demanded action from USC. (AR 527.) On the following day, petitioner’s name and image appeared throughout social media calling him a “rapist.” (AR 522, 529.) Prior to LAPD’s confirmation that petitioner was the “main suspect” in the sexual assault reports at the fraternity, petitioner was rumored to have been involved in the allegations. (AR 1076.)

On October 26, 2021, Roe filed a formal complaint with EEO-TIX alleging that petitioner engaged in “multiple instances of non-consensual oral sex and anal penetration of [Roe] with his penis and fingers,” as well as “multiple instances of non-consensual sexual acts, attempted non-consensual sexual acts, and acts of violence…including, but not limited to, strangling, biting, slapping, and physically restraining [Roe] from moving.” (AR 63-64.) That same day, EEO-TIX sent petitioner a Notice of Investigation. (AR 1331-37.)

EEO-TIX’s investigation of petitioner’s alleged assault of Roe was separate from its investigation of alleged drug-facilitated sexual assaults at Sigma Nu. (AR 1062-63.) Different investigators were assigned to each investigation. (AR 1062-64.) Investigator Kyle Gruber (“Investigator”) handled the investigation of Roe’s allegations against petitioner. (AR 246.) Investigator Jessica Lew handled the report that drug-facilitated sexual assaults occurred at Sigma Nu during a party on September 24, 2021. (AR 1067.)

For the investigation concerning Roe’s allegations, the Investigator reached out to petitioner on October 28, 2021, to request an interview. (AR 246-47, 1338-39.) Petitioner declined to be interviewed and did not respond to the Investigator’s invitation to provide the names of relevant witnesses. (AR 256-59.) Thus, the Investigator reached out to the relevant witnesses he identified based on his investigation. (AR 260-64, 310-12, 331-33, 352-53, 365-70, 426-40, 458-71, 481-87, 605-09.)

On March 14, 2022, the Investigator completed the initial fact gathering stage and shared the evidence with petitioner and Roe. (AR 1845-48.) Petitioner requested several extensions to review and respond to the evidence collected, and USC extended the Evidence Review deadline several times at his request. (AR 1866-68, 1872-74, 1919-26.) On April 22, 2022, petitioner responded to the evidence collected and provided additional evidence, including a news article regarding protests at the Sigma Nu fraternity. (AR 488-512.) With his response, petitioner also requested further investigation, including interviews of additional witnesses. (AR 488-512, 1929-53.) The Investigator attempted to reach most of the witnesses that petitioner identified. (AR 2293.)

On May 26, 2022, the Investigator notified petitioner that he completed an additional round of fact gathering and shared the additional evidence. (AR 2098, 2101.) On June 4, 2022, petitioner responded to the additional evidence collected, provided additional evidence, and again requested further investigation, including investigation into how Roe learned petitioner’s full name, the alleged disclosure of his name to media outlets, and an allegation that the university made a decision not to respond to Sigma Nu residents’ emergency calls during a protest at the fraternity. (AR 515-35, 2110-30.) The Investigator determined that this information was not directly related to the allegations at issue in the investigation, i.e., whether petitioner engaged in nonconsensual anal intercourse with Roe on October 16, 2021; thus, the Investigator determined no further investigation was necessary. (AR 2293-94.) Thereafter, a live hearing was scheduled for July 25-27, 2022. (AR 2248-50.)

On June 29, 2022, petitioner was provided with the Investigative Report and Notice of Hearing, among other materials, as well as evidence collected. (AR 2260-2306, 2489-90.) The Investigator recommended that the alleged conduct in Roe’s formal complaint, if true, would constitute violations under the various USC policies at issue. (AR 2297.)

On July 10, 2022, petitioner provided a written response to the Investigative Report. (AR 572-603, 2522-53.) On July 15, 2022, petitioner sent a letter requesting the transcript of an interview of Witness AM conducted in connection with the separate investigation of the Sigma Nu fraternity, claiming that the interview would impeach certain statements by Roe and show her bias against petitioner. (AR 2592-95.) The Investigator, who was not involved in the separate fraternity investigation, subsequently found and provided the transcript to petitioner on July 18, 2022. (AR 536-66, 1063-64, 1069.)

The live hearing took place over a period of five days, July 25, 2022, to July 29, 2022, via Zoom before Hearing Officer Aaron O’Donnell (“Hearing Officer”). (AR 1105.) The hearing was to determine whether, based on a preponderance of the evidence, the following allegations occurred: (1) whether petitioner grabbed and pulled up Roe’s dress at the night club to reveal her buttocks; (2) whether petitioner engaged in multiple instances of non-consensual oral sex; (3) whether petitioner engaged in multiple instances of non-consensual anal penetration with his penis and fingers; (4) whether petitioner attempted to engage in non-consensual anal penetration and vaginal intercourse without a condom; and (5) whether petitioner committed multiple acts of violence against Roe including strangling, biting, slapping, and physically restraining her. (AR 1127-30.) Five requested witnesses did not participate in the hearing; according to policy, the Hearing Officer could not rely on these witnesses’ previous statements. (AR 1106.) Approximately 95 exhibits (including two hearing exhibits) were submitted for consideration during the hearing. (AR 1135-40.)

The first day of the hearing took place on July 25, 2022. (AR 610.) After introductory remarks, the Hearing Officer explained the status of the requested witnesses’ availability to participate in the hearing. (AR 612-13.) Witness SS informed USC that she would only be available Tuesday, July 26, 2022. (AR 613.) Witness AM advised that she would not be available during the given dates. (AR 613, 2768.)

After opening statements, Roe was the first to be examined and gave her account of what happened on the night of the alleged incident. (AR 629.) Roe testified that petitioner began inserting his fingers into her anus and then inserted his penis into her anus more than twice. (AR 655-56, 665.)

Officer David Reyes was then examined and stated that Roe never made to him an allegation of violence (including choking or biting) and that he did not observe any bruises or lacerations on Roe when he interviewed her on October 16, 2021. (AR 723, 1126.)

On day two of the hearing, July 26, 2022, Roe’s advisor informed the Hearing Officer that she had a family emergency which resulted in the hearing ending earlier than scheduled, at approximately 2:50 p.m. (AR 735.) Due to the change in schedule, the Hearing Officer suggested moving SS’s testimony to the following day, although he acknowledged SS stated she was only available at 1:30 p.m. for the day she was originally scheduled. (AR 735-36.) Petitioner agreed to the rescheduling. (AR 736.) The cross-examination of Roe resumed, and Dr. Frank Sheridan (petitioner’s expert in forensic pathology), MM, and Dr. Veronica Thomas (petitioner’s expert in forensic psychology) all testified. (AR 494, 735-36, 844.)

On day three, July 27, 2021, prior to the cross-examination of Roe and examination of petitioner, the Hearing Officer responded to petitioner’s concerns about SS, stating that he understood petitioner’s interest in her as a witness but that, due to time constraints, other witnesses were prioritized. (AR 864.) The cross-examination of Roe then concluded, followed by petitioner’s examination. (AR 914-15.) Dr. Thomas returned to the hearing to undergo cross-examination. (AR 964.) Following Dr. Thomas’ testimony, petitioner’s direct examination resumed, followed by his cross-examination. (AR 982, 1002.)

During cross-examination, petitioner admitted that he penetrated Roe’s anus without any indicia of consent. (AR 987-88.) With respect to the degree of anal penetration, petitioner stated initially that he believed his penis did not fully enter Roe’s anus, stating that it just “hit the surface.” (AR 987-88.) Petitioner later testified that he could feel the difference, stating: “it just didn’t feel like the same area I’d been in.” (AR 1032.) While petitioner testified at the hearing that his penetration of Roe’s anus was accidental, he never mentioned the conduct was accidental in conversations with either of his two experts—psychologist Veronica Thomas or polygrapher Peter Perrin. (AR 504-06, 572, 847-48, 1125.)

Despite attempts at contacting SS to reschedule her testimony, SS did not respond. (AR 2917-19.) At the end of the hearing, petitioner expressed on the record that he believed he was given “an unfair hand” due to missing SS’s availability and the inability to reschedule her. (AR 1038.)

On July 28, 2022, Roe decided to not participate in the hearing, but her advisor was present on her behalf. (AR 1040.) Petitioner inquired about the status of SS once again, but there was no update. (AR 1040.) The Investigator was examined, during which he explained what Witness SS told him concerning her encounter with Roe prior to the incident, additional details about the investigation of the fraternity, and which witnesses were not examined. (AR 1043-46, 1063, 1067, 1077.) On July 29, 2022, the final day of the hearing took place, and both parties delivered their closing statements.

On August 17, 2022, the Hearing Officer issued his Written Notice of Determination, finding only one out of five allegations to be supported by a preponderance of the evidence. (AR 1127-30.) The one substantiated allegation occurred during the course of at least three of the other allegations of nonconsensual acts that were not sustained. (AR 1129.) The Hearing Officer assigned “more overall reliability to [petitioner]’s denials of strangling and other physical force and violence than to [Roe’s] account….” (AR1127.) Further, the Hearing Officer did not find that the evidence supported the allegations of multiple instances of non-consensual oral sex or the allegation that petitioner attempt to engage in non-consensual anal and vaginal penetration without a condom. (AR 1128, 1130.)

However, the Hearing Officer did conclude that a preponderance of the evidence supported the allegation that petitioner engaged in non-consensual anal penetration of Roe with his penis and fingers. (AR 1129.) The Hearing Officer based this determination on his assessment of the parties’ respective credibility and the fact that, even by petitioner’s own admission, Roe did not say or do anything that would indicate consent before petitioner engaged in anal penetration. (AR 3693-97, 3699-3700.) The Hearing Officer assigned “more overall reliability to [Roe]’s account regarding the allegations regarding nonconsensual anal penetration than to [petitioner]’s denials.” (AR 3697.) Thus, the Hearing Officer determined that petitioner violated USC’s student conduct code and its policies prohibiting Title IX sexual harassment, sexual assault, and sexual and gender-based harassment. (AR 3701-04.)

On August 29, 2022, after consideration of petitioner’s and Roe’s impact statements, the Misconduct Sanctioning Panel (“MSP”) determined that petitioner should be expelled, not permitted on USC’s campus, and prohibited from contacting Roe. (AR 1141-43.)

Petitioner submitted an appeal on September 2, 2022, raising the following grounds: (1) procedural irregularities; (2) newly discovered evidence; and (3) bias. Petitioner described in detail how the decision was prejudicially impacted by USC’s failure to call witnesses, failure to provide/consider exculpatory evidence, and the overwhelming presence of bias against him from the media and USC community. (AR 1156-1219.) On October 14, 2022, respondent Allard affirmed the Written Determination by the Hearing Officer and the Sanction Decision issued by the MSP. (AR 1220-38.)

On January 4, 2023, petitioner filed a Petition for Writ of Administrative Mandamus. On March 28, 2023, respondents USC, Allard, and Spear filed an Answer.

On October 6, 2023, petitioner filed an opening brief. On November 7, 2023, respondents filed an opposition. On November 22, 2023, petitioner filed a reply. The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Numerous Court of Appeal cases have affirmed that student sexual misconduct proceedings at public and private universities do not involve a fundamental vested right, and that the substantial evidence standard applies in the trial court. (See, e.g., Doe v. Occidental College (2019) 40 Cal.App.5th 208, 220-221; Doe v. Allee (2019) 30 Cal.App.5th 1036, 1060; Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 238, 239, 248-49; Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1073-74; see also Gurfinkel v. Los Angeles Community College Dist. (1981) 121 Cal.App.3d 1, 6 [no fundamental right to a public college education].)

Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-85), or evidence of ponderable legal significance which is reasonable, credible and of solid value (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). “Courts may reverse an [administrative] decision only if, based on the evidence…a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

“On substantial evidence review, [the court] do[es] not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. The administrative agency’s findings come before [the court] with a strong presumption as to their correctness and regularity. [The court] do[es] not substitute [its] own judgment if the agency’s decision is one which could have been made by reasonable people. Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency’s findings are not supported by substantial evidence.” (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1073, citations and quotations omitted.)

“Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) “A university is bound by its own policies and procedures.” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1078.) “Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062, disapproved of on other grounds by Boermeester v. Carry (2023) 15 Cal.5th 72, 96.) “To comport with due process …, university procedures must be tailored in light of the matters at issue, to ensure that parties have a meaningful opportunity to present their case.” (Id. at 1063-64.) As a general rule, the accused usually “must be permitted to see the evidence against him.” (Doe v. Regents of University of California (2018) 28 Cal.App.5th 44, 57.)

Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [petitioner] of adequate notice or an opportunity to be heard before impartial judges.” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)

The procedural fairness of an administrative proceeding is a question of law and accordingly reviewed de novo. (Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1231; Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner contends that he was deprived of exculpatory evidence, that the Investigator did not pursue leads, and that the Hearing Officer improperly relied on a report from a witness who did not testify at the hearing.

Petitioner contends that the Investigator “effectively withheld” the transcript of Witness AM because it was provided to petitioner upon his request one week before the hearing. (Opening Br. at 9:27-28; AR 1063-64.) Petitioner maintains that the transcript was exculpatory because it somehow shows that Roe was present during a September 24, 2021 party at the Sigma Nu fraternity, when Roe maintained that she had never been at the Sigma Nu fraternity prior to the incident on October 15 and 16, 2021. (AR 1067-68.)

The Investigator testified that it was university policy to provide exculpatory evidence to the parties. (AR 1067.) However, the Investigator had no reason to know about AM’s statement prior to petitioner’s request for the transcript on July 15, 2022. (AR 2592-95.) AM was interviewed by a different investigator, Jessica Lew, in connection with a different investigation, namely the allegations against Sigma Nu fraternity, not petitioner. (AR 536-66.) Neither petitioner nor Roe identified AM as a witness for the Investigator to interview. (AR 489-90, 516, 1816.) Therefore, the Investigator had no occasion to know about AM’s interview until petitioner requested the transcript of the interview of an unnamed witness. (AR 1174.) Only when the Investigator asked Lew about petitioner’s request and Lew identified the interview of AM did the Investigator become aware of the transcript. (AR 1064, 1069.) The Investigator subsequently provided the transcript to petitioner on July 18, 2022, in advance of the hearing. (AR 1069.)

In any event, despite the Investigator’s characterization of AM’s interview as exculpatory, the Court disagrees. AM told Lew (incorrectly) that Roe was one of the alleged seven sexual assault victims who were drugged at the fraternity party in September 2021. (AR 562-64.) AM came to this erroneous conclusion based on her interpretation of Roe’s postings on social media and not because Roe or anyone told AM. (AR 562-63.) Rather, in communications AM reported that she actually had with Roe, Roe purportedly stated that she was previously assaulted, never obtained justice for the past assault, and encouraged AM to make a complaint.[1] (AR 563.) AM’s understanding of Roe’s social media posts and Roe’s prior assault have no bearing on the Hearing Officer’s findings that petitioner had anal intercourse with Roe without her consent, especially considering that petitioner admitted that anal penetration occurred and no prior consent was obtained. (AR 987-88, 993.) Put another way, even if Roe had been at the fraternity prior to the incident, that fact bears little on whether Roe had consented to anal intercourse the following month.

For the foregoing reasons, the Investigator did not withhold exculpatory evidence. To the extent that the Investigator improperly delayed in providing the transcript of AM’s interview to petitioner, such error was harmless in light of petitioner’s admission that the anal intercourse penetration occurred without consent.

Witness SS told the Investigator that the weekend before the subject incident started, Roe told SS that she was going to Sigma Nu and that she knew the president, i.e., petitioner. (AR 339-40.) Petitioner contends that the Investigator did not inquire who was with Roe and SS during their conversation. (Opening Br. at 10:18-22; AR 1056 [Roe stated that she ran into SS and other friend].) However, SS told the Investigator that she was alone during the conversation (AR 339), which petitioner does not contest. (Reply at 4:4-5.)

Further, the impeachment value of SS’s statement is hard to see. Petitioner claims it would “heavily undermine Roe’s credibility, especially since she asserted that she had never been to the fraternity and did not know Doe.” (Reply at 4:8-10.) But petitioner himself took the position that he and Roe did not know one another prior to meeting at the nightclub on October 15, 2021. (See AR 572 [petitioner’s response to Investigative Report adopting assertion that “[Petitioner] told me he did not know [Roe] until he met her at a bar on the date and time in question”].) Indeed, in an October 16, 2021 text exchange between Roe and MM, which petitioner urged respondents to scrutinize, Roe describes her initial impression of petitioner from the night before as having no “red flags” because “he was very normal at the start” (AR 591)—statements consistent with her meeting him for the first time. Further, similar to the finding above with respect to AM’s statement, whether Roe had been to Sigma Nu prior to the incident or stated that she knew petitioner has no bearing on the Hearing Officer’s findings that petitioner had non-consensual anal intercourse with Roe, particularly given petitioner’s admission of anal penetration without prior consent. (AR 987-88, 993.)

Petitioner also argues that he requested the Investigator to find out how his name was leaked and to investigate the protests resulting in vandalism to the Sigma Nu property. (AR 515-16.) The Investigator was charged with investigating Roe’s allegations against petitioner. (AR 246.) Petitioner’s requests were not directly related to Roe’s allegations. Accordingly, the Investigator appropriately determined that no further fact gathering pursuant to petitioner’s request was necessary. (AR 2294.)

Petitioner also argues that the Investigator did not interview Witness LH, who was named by Roe as an outreach/outcry witness and who had vilified petitioner on social media. (AR 515.) However, the Investigator did attempt to interview LH, but LH did not respond to the Investigator’s request. (AR 468-69.)

For the foregoing reasons, the Investigator did not fail to follow investigatory leads. To the extent that the Investigator failed to pursue any purported investigatory leads, such error was harmless in light of petitioner’s admission that the anal intercourse was nonconsensual.

Petitioner argues that the Hearing Officer should not have considered the report of Peter Perrin when the Hearing Officer made clear that he could not rely on statements of parties or witnesses (such as Perrin) who did not testify at the hearing and submit to cross-examination. (AR 54, 853.)

In the written determination by the Hearing Officer, he found that petitioner’s description of his having entered Roe’s anus as “completely accidental” was contradicted by a synopsis by Perrin of what petitioner told Perrin. (AR 3695.) Perrin had administered a polygraph examination on petitioner. (AR 504-06.) In his report, Perrin described petitioner’s description of the incident as follows:

[Petitioner] told me he did not know [Roe] until he met her at a bar on the date and time in question. He said they danced and kissed, and after a short time, [Roe] agreed to go to his residence with him. He said once at his residence they began to kiss and took each other’s clothes off and engaged in consensual sex. [Petitioner] said at one point he was behind [Roe] in “doggie style” position. He said his penis entered her anus for a single thrust. He said [Roe] immediately tensed and told him to stop. [Petitioner] said he stopped as soon as [Roe] told him to stop. He said [Roe] told him she wanted to leave. He said he walked her to the door where they hugged said the next day he was shocked to discover she had made a complaint against him.

(AR 504-05.) With respect to this account, the Hearing Officer found, “[i]n this account, [petitioner]’s actions appear intentional, and there is no mention of [petitioner]’s anal penetration of Reporting Party as being accidental.” (AR 3695.)

USC’s Resolution Process for Sexual Misconduct states: “The Hearing Officer will review the investigative report and any written statements provided by the parties in response to the investigative report, all exhibits, and any additional relevant evidence introduced at the hearing.” (AR 53.) When petitioner submitted his written response to the Investigative Report, on the very first page of his response, petitioner asserted that “widely respected polygrapher, Pete Perrin, synopsized what happened when he summarized my statement to him,” followed by the above excerpt from Perrin’s report quoted verbatim. (AR 572.) Petitioner thus adopted the above statement by Perrin as his own. There is no question that petitioner testified during the hearing and was subject to cross-examination. (AR 914-15, 982, 1002.) Accordingly, pursuant to the Resolution Process for Sexual Misconduct policy, the Hearing Officer was entitled to consider the portion of Perrin’s report that petitioner himself adopted.

For the foregoing reasons, the Hearing Officer did not improperly incorporate Perrin’s summary of the incident into the written determination.

During the hearing, petitioner maintained that his contact with Roe’s anus was “completely accidental.” (AR 1125.) The Hearing Officer found this assertion not credible. (AR 1125.) The Hearing Officer relied on the testimony of Dr. Thomas, petitioner’s adoption of Perrin’s summary, and petitioner’s inconsistent testimony regarding the degree of anal penetration. (AR 1125.)

With respect to the testimony of Dr. Thomas, she testified that petitioner described the sexual activity in which he and Roe engaged as consensual. (AR 1125, 3693; see also AR 3378 [Dr. Thomas testified that petitioner told him “[t]hat they had sex, and she was mad at him, and he said he was drunk, and most of the conduct was between the two of them. He was adamant that he didn’t rape anybody, and that their conduct was consensual”].) Dr. Thomas did not mention any statement from petitioner that any sexual act, including anal penetration, was accidental.

With respect to Perrin’s summary of petitioner’s account of the incident, the Hearing Officer found that such account describes intentional actions on the part of petitioner, not accidental. (AR 3695.) Petitioner told Perrin that “he entered [Roe]’s anus with his penis” without mentioning that it was accidental.

With respect to the degree of anal penetration, petitioner stated initially that he believed his penis did not fully enter Roe’s anus, explaining that it just “hit the surface.” (AR 987-88.) When later asked how he knew that his penis was in Roe’s anus rather than her vagina, petitioner testified that he could feel the difference stating: “it just didn’t feel like the same area I’d been in. It was ... I don't know. I don’t really want to get into it, but if you've been having sex, vagina gets looser. This was not the same area that I was previously in.” (AR 1032.) Petitioner’s statement suggests a greater degree of anal penetration compared to the degree to which he had earlier testified.

The finding that petitioner engaged in non-consensual anal intercourse is subject to a review for substantial evidence. Based on petitioner’s description to Dr. Thomas of his sexual acts with Roe as consensual, petitioner’s incorporation of Perrin’s summary which contained no mention that the anal penetration was accidental, and petitioner’s inconsistent statements regarding the degree of anal penetration, a reasonable person was entitled to find that petitioner’s description of his contact with Roe’s anus as accidental was not credible.

In the reply, petitioner focuses on the fact that four of the five allegations against him were unsubstantiated. (Reply at 7:12-22.) That may be true, but it has no bearing on whether substantial evidence supported the finding that petitioner engaged in non-consensual anal intercourse, as claimed by Roe. Indeed, it merely demonstrates that the Hearing Officer found that petitioner’s account on some issues was more reliable that Roe’s account and that Roe’s account on other issues was more reliable than petitioner’s account. On substantial evidence review, this Court does not evaluate the credibility or witnesses or reweigh the evidence; rather, this Court’s review is limited to whether there is sufficient evidence to support the findings that were made. (Doe, 5 Cal.App.5th at 1073.)

For the foregoing reasons, the Court finds that substantial evidence supported the Hearing Officer’s finding that petitioner engaged in anal intercourse with Roe without her consent.

For sexual assault, expulsion is a reasonable sanction. If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.) The Court does not find any manifest abuse of discretion from the imposition of discretion. (See Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.)

Petitioner contends that USC was pressured by the community to find him in violation given the publicity of the allegations and protest against Sigma Nu. (AR 512.) Mere accusations of bias and prejudice on the part of an administrative decisionmaker are insufficient; assertions of bias and prejudice must be supported by “clear averments.” (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 582, quoting Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 792.)

Petitioner fails to establish that either the Hearing Officer or respondents were biased. Petitioner argues that the Hearing Officer excluded testimony of witnesses who did not submit to cross-examination, when USC did not enforce this written policy in other cases. (AR 2769; Opening Br. at 14:6-12.) However, prior to the start of the hearing, the Hearing Officer asked whether the written policy was still being enforced. (AR 2769.) Although no direct response to the Hearing Officer’s inquiry is cited by either party, the record reflects that the Hearing Officer applied the written policy during the hearing and that USC was following its policy as written. (AR 765, 853, 1105, 2862 [7/26/22 response from Spear to SS that policy is being followed].) The Hearing Officer’s application of the written policy is not evidence of bias.

Petitioner also argues that the Hearing Officer neglected the scheduling of witnesses, in particular Witness SS. According to petitioner, the Hearing Officer should not have rescheduled SS, who purportedly had exculpatory evidence, in favor of MM, who was not present during the alleged conduct. As stated above, the Court disagrees that SS’s testimony would have been exculpatory or meaningfully impeached Roe. Even if SS could exculpate petitioner, there was no showing that the Hearing Officer knew SS would not be available after July 26, when she was scheduled to testify. MM had indicated that she was traveling on July 27. (AR 2844-45.) By contrast, SS never indicated that she was not available on July 27. (AR 2859-61.) Further, petitioner agreed to the rescheduling during the hearing. (AR 736 [“Everything sounds great. Thank you”].) Accordingly, the Hearing Officer’s attempts to accommodate the testimony of both MM and SS does not evidence any bias.

In the reply, petitioner also argues that the Hearing Officer had a pecuniary interest in remaining employed by USC to adjudicate student misconduct matters. The Hearing Officer’s mere appointment by USC is insufficient to establish a disqualifying financial interest, without more. (See El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 996 [“We see nothing in the mere fact of having been appointed by a hospital’s governing body instead of by the medical staff that would inherently cast doubt on the impartiality of a review hearing participant”].) Petitioner widely speculates that “USC would not be paying for the Hearing Officer’s services in future cases if he did not generate a finding favorable to USC.” (Reply at 6:22-24.) Petitioner presents no evidence about how USC selects its hearing officers to demonstrate that Mr. O’Donnell, the Hearing Officer here, faced the risk of exclusion from future work if he were to find contrary to USC’s interests. (Cf. Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1020-21 [“Counties that appoint temporary administrative hearing officers must do so in a way that does not create the risk that favorable decisions will be rewarded with future remunerative work. The ad hoc procedure used here does create that risk”].) Accordingly, petitioner’s assertion of the Hearing Officer’s purported financial interest is insufficient to demonstrate bias.

With respect to respondents, while they were the ultimate decisionmakers who affirmed the Hearing Officer’s findings and imposed expulsion as a sanction, respondent Allard carefully considered petitioner’s bases for appeal and determined them to be without merit. (AR 1220-38.) Petitioner fails to demonstrate the “clear averments” necessary to establish bias on the part of respondents.

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondents shall prepare, serve, and ultimately file a proposed judgment.

[1] The Hearing Officer was aware that Roe “had suffered sexual assault on prior occasions,” because petitioner sought to exclude such evidence as “not probative of the veracity of [Roe]’s allegations regarding [petitioner]’s conduct on October 15-16, 2021.” (AR 3677.) The Hearing Officer agreed with petitioner that he should not rely on such evidence in making any findings whether petitioner committed any of the act alleged by Roe. (AR 3677.)