Judge: Curtis A. Kin, Case: 24STCP00346, Date: 2024-10-08 Tentative Ruling

Case Number: 24STCP00346    Hearing Date: October 8, 2024    Dept: 86

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

I.       Factual Background

A.           Roe’s Sexual Assault Allegations Against Doe

On October 15, 2021, Jane Roe, a sophomore at the University of California at Los Angeles (“UCLA”), first met petitioner John Doe, a senior at UCLA, at a fraternity party, and they exchanged contact information. (AR 54, 58, 109, 249-50.)

On October 23, 2021, Roe attended a tailgate party on Doe’s fraternity’s bus. (AR 54, 251.) Roe texted with Doe to coordinate meeting him at the tailgate, but they did not meet up. (AR 109-10, 250-51.) That evening, Doe texted Roe to ask if she wanted to go out with him later that night, and Roe responded: “I’m not tryna go out[.] I’m tryna fuck[.]” (AR 111, 250.) Doe did not end up meeting up with Roe that night. (AR 251.) Doe and Roe exchanged some flirty text messages. (AR 109-14.) On October 23, 2021, Roe asked Doe if he wanted to “hang out” but Doe did not immediately respond. (AR 112, 251.) Doe later responded that he passed out. (AR 112, 251.)

On Tuesday, October 26, 2021, Doe received a text message from Roe stating, “I’ve made up my mind,” indicating to Doe that Roe had made up her mind to see him that night. (AR 112-13.) Doe sent Roe his location at the fraternity house. (AR 112, 263.) Roe did not know Doe well and claimed she only intended to study. (AR 264.) She thought Doe might try to kiss her because they had been flirting via text and in person. (AR 264.)

Doe and Roe dispute what happened in Doe’s room.

According to Doe, Roe arrived at Doe’s house around 9:15 p.m. Doe greeted her and walked her to his room. (AR 114, AR 253, AR 264.) Roe sat on Doe’s bed and made small talk. (AR 253.) Roe then told Doe that she hadn’t had sex in a while. (AR 254.) Roe started kissing Doe and told Doe that she wanted to have sex with him. (AR 58-59, 254.) Doe was not feeling aroused by the situation or by Roe’s aggressiveness, and he was not able to get an erection. (AR 59, 255-56.) Roe wanted to continue the sexual activity, so Doe rubbed her clitoris and digitally penetrated her while she laid on her back and moaned with pleasure. (AR 256-57.) Doe was not interested in continuing to engage in sexual activity with Roe, and, when his phone buzzed near the bed, he used the diversion to stop the sexual activity. (AR 257.) Roe became upset with Doe for stopping and accused him of taking a photo of her with his phone. (AR 257.) Doe told Roe that he had not taken any photos of her and showed her that he was texting with a friend. (AR 257.) Roe dressed, collected her belongings, and quickly left Doe’s room. (AR 257-58.)

According to Roe, when Roe arrived in Doe’s room, she sat on his bed and took her laptop out to study. (AR 54, 265.) Almost immediately, Doe “took [her] laptop off [her] lap, stood [her] up, turned [her] around, and pushed [her] face first into the bed.” (AR 54, 265.) Doe groped Roe and unzipped her sweatshirt. (AR 54, 265.) They kissed, and Roe assisted Doe in removing her pants. (AR 288.) Roe testified that the sexual contact was consensual up until this point, but Roe became concerned at how quickly things were progressing. (AR 265, 287.)

After the initial consensual touching, Doe became increasingly aggressive with Roe without consent. For example, Doe turned Roe onto her stomach and bit her buttock, causing Roe to scream out in pain. (AR 265.) Then, Doe turned her onto her back, “put his hands around [her] neck and choked [her].” (AR 265.) Roe had to push him off with her hands so that he would release his grip on her neck. (AR 265.)

Despite Roe’s screams and pushing Doe away, Doe continued to touch Roe without consent. (AR 265-66.) Doe turned Roe over again and began digitally penetrating her while Roe was face down on the bed. (AR 266.) Roe began to panic, because she expressed her non-consent twice to the biting and choking, and she feared Doe would choke her again. (AR 266.) Roe tried to figure out how to remove herself from the situation. (AR 244, 299.) Then, she looked behind her, saw Doe with one hand inside of her vagina and with his phone in his other hand. (AR 299.) Roe told Doe to “get the fuck off [her],” as she thought Doe might have been photographing or videoing her. (AR 55, 266.) At this point, Roe was “truly, truly panicked.” (AR 266.)

Roe quickly tried to get away by gathering her belongings and attempting to get dressed, but Doe held onto her pants and refused to give them to her. (AR 266, 478.) Doe pushed Roe back onto the bed and put her in a “headlock” to prevent her from putting on her pants and leaving his room. (AR 55, 266-67.) Roe could not breathe and was scared of Doe. (AR 267.) Roe used her elbows to shove against Doe’s chest. (AR 267.) Doe grabbed her by the wrist and pulled her back onto the bed. (AR 267.)

Doe then berated Roe for approximately fifteen minutes as she sat on the bed wanting to leave. (AR 56, 267.) Doe called her “bipolar” and told her she was being “a fuckin’ bitch.” (AR 56, 245, 267.) Finally, Doe let her go and said: “Fine. Go you fucking bitch.” (AR 267.) Roe recalled that, at some point, Doe told her he could not “get hard” unless he had an emotional connection. (AR 245.) At no point during this encounter did Roe tell Doe she wanted to have sex with him. (AR 288.)

Roe ran out of the fraternity house and made it two blocks before sitting under a tree. (AR 267.) She first called her roommate, Witness 1, who did not answer because she was at a sorority event. (AR 267.) Witness 1 then texted Roe to ask, “… you good?” (AR 81, 101.) Roe responded: “No[,] I got out of there but it was horrible.” (AR 101.) When Witness 1 asked where Roe was, Roe replied: “I’m sitting outside trying to pull it together before I go back to the dorm.” (AR 81, 101-02.) Roe then called another friend, Witness 3, who immediately came to Roe’s aid while she had a panic attack. (AR 268.) Witness 3 helped Roe walk back to her dorm room. (AR 81, 268.)

Witness 1 and Witness 2 then met Roe in her dorm room as well. (AR 81, 268.) Roe testified she had another panic attack when she tried to recount the events of the night to Witnesses 1 and 2. (AR 273.)

B.           Investigation

On November 8, 2021, the Title IX Office learned from the University of California Police Department (“UCPD”) that Doe may have engaged in conduct prohibited by the University’s Policy Against Sexual Violence and Sexual Harassment (“SVSH Policy”). (AR 49, 222, 534.) On December 16, 2021, the assigned investigator interviewed Roe, who requested a formal investigation. (AR 49.) On February 24, 2022, the Title IX Office notified the parties that it had opened an investigation and included the specific allegations to be investigated in the Notice of Charges. (AR 119, 125.) On March 22, 2022, the investigator informed Doe of the investigative procedures and proceeded to interview him about the allegations. (AR 50.)

Both parties were interviewed twice by the investigator. (AR 52.) Doe denied Roe’s allegations and maintained that Roe initiated the sexual encounter, that she “consistently verbalized consent by saying that she wanted to have sex with him and grabbing his face and kissing it,” and that she pressured Doe to have sexual intercourse with her. (AR 58-59.)

The Title IX Office also interviewed Witness 1, Roe’s roommate, and Witnesses 2 and 3, Roe’s friends. (AR 52-53.) Witnesses 1, 2, and 3 corroborated Roe’s allegations, although Roe told each witness what happened with varying amounts of detail. Witnesses 1 and 3 corroborated Roe’s statements regarding her attempts to leave Doe’s room and Doe’s efforts to prevent her from leaving. (AR 79.) Witness 1 specifically reported that Roe told her that Doe physically restrained Roe from leaving his room several times. (AR 63.) Witness 3 further bolstered this account, telling the investigator that Roe told him that Doe “would not let her leave for a long time.” (AR 68.) All three witnesses provided similar observations about Roe’s demeanor immediately after her encounter with Doe. (AR 81.) Witnesses 1 and 2 confirmed the phone call to Witness 1 and the text messages that followed. (AR 81, 102, 267.) Witness 3 stated that he went to pick up Roe from where she sat under a tree, after Roe had fled Doe’s room. (AR 67.) Witness 3 told the investigator he could hear Roe crying as he walked towards her. (AR 67.) He described Roe as “very shaken,” “shocked,” and “overwhelmed.” When Roe arrived back at the dorm, Witness 1 described Roe as being in “extreme distress,” “hysteria,” and “sobbing,” suffering what looked like a panic attack. (AR 81.)

In June 2022, while the investigation ensued, Doe participated in his graduation commencement ceremonies at UCLA. (AR 221.) Doe completed the last class he needed to earn his bachelor’s degree from UCLA in Fall 2022. (AR 221.) UCLA refused to confer Doe’s degree before the disciplinary proceedings concluded, which hindered Doe’s chances of finding employment after graduation. (AR 221, 249.)

Following the interviews, the investigator provided both parties an opportunity to review and comment on the Summary of Information Relied Upon (“SIRU”), including their own statements, witness statements, and text messages. (AR 50.) In response to the SIRU, Roe requested that two more witnesses be interviewed. (AR 50.) On July 15, 2022, a supplemental SIRU with the new evidence was again sent to the parties. (AR 19, 50.) The Title IX Office provided the investigator three extensions to finalize and issue the report due to several other investigations the investigator handled at that time. (AR 50.)

On November 9, 2022, the investigator submitted a 53-page report with preliminary findings, concluding that a preponderance of the evidence established that Doe: (1) intentionally bit Roe’s buttocks without consent; (2) digitally penetrated Roe’s vagina without consent; and (3) used violence and force to overcome Roe’s will. (AR 37, 48.) The investigator did not find that a preponderance of the evidence established that Doe made photographs or recordings depicting Roe’s nudity or sexual acts. (AR 48.)

The investigation made preliminary conclusions that Doe violated two provisions of the SVSH Policy (Sexual Assault – Contact and Sexual Assault – Penetration) with aggravating factors, as well as the UCLA Student Conduct Code. (AR 37, 48, 100.) The investigator also preliminarily found that the sexual assault violations were “aggravated” under the SVSH Policy because Doe used force and violence to touch and digitally penetrate Roe’s vagina, including choking, grabbing, and throwing Roe on the bed. (AR 97-98.)

On December 5, 2022, the Assistant Dean of Students informed Doe that, based on the investigator’s preliminary determination, the proposed disciplinary sanction was dismissal from the University. (AR 40-41.) Although Doe failed to contest the investigator’s preliminary determination, the University scheduled a hearing pursuant to its Policy. (AR 42.)

C.           Hearing and Decision

On April 26, 2023, Doe and Roe received an amended notice of hearing, providing them with information about the hearing procedures and scope. (AR 139, 143.) On May 10, 2023, the hearing officer conducted the hearing, receiving testimony from Doe, Roe, and three witnesses, and reviewing the documentary evidence. (AR 225-447.) Both parties had advisors and support persons at the hearing. (AR 230-31 [HT 6:6-7:22].) Both parties made opening and closing statements, and the hearing officer permitted cross-examination by each parties’ advisor, consistent with the SVSH Policy framework. (AR 240-47 [HT 16:1-23:18]; 248-59 [HT 24:21-35:11]; 276-315 [52:16-91:17]; 354-78 [HT 130:8-154:19]; 438-39 [HT 214:11-215:22]; 440:4-446:16 [HT 216:4-222:16].) Doe’s advisor (Ms. Parker) cross-examined every witness, including Roe. (AR 226.) Doe did not call any witnesses at the hearing, even hough he had the opportunity to do so. (AR 207 [Appendix F, VII.D.1.b].)

During the hearing, Roe explained her diagnoses of post-traumatic stress disorder (“PTSD”), generalized anxiety disorder, and panic disorder caused by Doe’s actions. (AR 241.) A diagnosis of PTSD is a disqualifiable medical condition for the U.S. Army, potentially impacting Roe’s future service, as Roe attended UCLA on a Reserve Officer Training Corps (“ROTC”) scholarship. (AR 240, 243.) Whenever Roe wore her uniform after the incident, she was anxious to remove the tight-fitting uniform from her neck, where Doe choked her. (AR 242.)

Roe also described that, within a week or so of the sexual assault, she took a leave of absence from school because she needed support from her family in Maryland. (AR 246.) Roe’s grades dropped, and it was impossible for her to concentrate. (AR 246.) The leave occurred in the middle of classes, exams, and Roe’s ROTC commitments. (AR 246.)

Each witness testified to the impact that the incident had on Roe. (See, e.g., AR 429-30 [Witness 3: “[Roe] was very anxious a lot of the time . . . she was pretty constrained to staying in the dorms with me…. I’ve never seen her kind of as subdued and overwhelmed….”]; 412 [Witness 1: after the incident she noticed a lot “of anxiety and sadness” in Roe. Roe’s grades suffered, and “anything regarding the incident [was] extremely triggering to her….”]; 391 [Witness 2: observing, Roe, who was normally a bubbly person, became very upset if anyone brought up the incident].)

Based on a credibility analysis and review of the testimony and documents, the hearing officer found Doe’s conduct constituted Sexual Assault – Contact and Sexual Assault – Penetration in violation of the SVSH Policy and Student Conduct Code. (AR 487-89.)

D.           Appeal of Decision

Doe submitted his appeal and had an opportunity to meet with the appeal officer to provide input on his sanctions. (AR 514, 531, 540.) On August 15, 2023, the appeal officer upheld the hearing officer’s findings, but reduced the sanction from dismissal to a three-year suspension. (AR 534.) In upholding the hearing officer’s findings, the appeal officer reiterated that the hearing officer’s decision finding Roe more credible and substantiating the allegations was based on all the evidence, including that Roe immediately sought help from her friends, was visibly upset, and suffered academic and psychological impacts from the incident. (AR 543.) The appeal officer also found that, if there were any inconsistencies in Roe’s statements during the investigation or to witnesses, the inconsistencies were immaterial. (AR 543.)

In reducing the sanction against Doe, the appeal officer found that, although Roe suffered severe impacts to her academic, professional, and personal life, the hearing officer did not make specific factual findings that Doe’s conduct caused Roe “physical injury” to support an enhanced sanction of dismissal. (AR 548.) The appeal officer further determined that a suspension “holds [Doe] accountable for his actions; he will be unable to obtain his degree until the term of suspension has been completed.” (AR 548.) The appeal officer found that a suspension for three calendar years was appropriate in light of the aggravated conduct. (AR 548-49.)

II.      Procedural History

            On October 17, 2023, petitioner filed a Petition for Writ of Mandamus in Alameda Superior Court. Upon stipulation, the case was transferred to the Los Angeles County Superior Court, where the petition was filed on February 2, 2024. On March 4, 2024, respondent filed an Answer.

            On August 14, 2024, petitioner filed an opening brief. On September 13, 2024, respondent filed an opposition. On September 23, 2024, petitioner filed a reply. The Court has received a hard copy of the joint appendix and electronic copy of the administrative record.

III.     Standard of Review

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).)

A.           Substantial Evidence Review

Student sexual misconduct proceedings at public and private universities do not involve a fundamental vested right, which means that the substantial evidence standard applies to a writ petition challenging the university’s decision 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.)

B.           Fair Hearing

“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.)

IV.     Analysis

A.           Whether Substantial Evidence Supports Imposition of Discipline

Petitioner Doe contends that the Hearing Officer did not properly hold the University to its burden of proving its allegations by a preponderance of the evidence and instead improperly shifted the burden of proof to Doe to prove his innocence.

            The SVSH Policy states: “While the parties have the right to identify evidence and witnesses, the University bears the burden of proof and of gathering evidence sufficient to reach a determination regarding responsibility.” (AR 169.) According to the Policies Applying to Campus Activities, Organizations, and Students (“PACAOS”) Appendix F, “The hearing officer will decide whether a violation of the SVSH Policy (or related non-SVSH Policy violation) occurred based on a Preponderance of Evidence standard.” (AR 212.) Preponderance of the evidence means “more likely than not” that the existence of a fact is true. (Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 369 [preponderance of the evidence is such evidence “as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests”].)

            The Hearing Officer found that petitioner’s conduct violated the SVSH Policy with respect to Sexual Assault – Contact and Sexual Assault – Penetration, as well as the UCLA Student Conduct Code based on conduct that threatens health or safety and violation of the University of California Policy on Sexual Violence and Sexual Harassment. (AR 487-89.) The SVSH Policy defines Sexual Assault – Conduct as the intentional touching of an intimate body part, i.e. genitals, anus, groin, breast, or buttocks, without the complainant’s consent. (AR 153, 188, 487.) The SVSH Policy defines Sexual Assault – Penetration to include the penetration, no matter how slight, of the complainant’s vagina or anus by any body part or object. (AR 153, 488.) Both forms of sexual assault are aggravated when the conduct includes “[o]vercoming the will of Complainant by: [¶] force (the use of physical force or inducing reasonable fear of immediate or future bodily injury) [or] violence (the use of physical force to cause harm or injury)….” (AR 154.) The UCLA Student Conduct Code prohibits “[c]onduct that threatens the health or safety of any person including, but not limited to physical assault….,” as well as a violation of the University of California Policy on Sexual Violence and Sexual Harassment. (AR 488-89, 558, 564.)

            During the hearing, complainant Roe testified that, after initial consensual touching, petitioner bit Roe’s buttock, causing her to scream in pain. (AR 265 [HT 41:12-14].) Then, while petitioner and Roe were kissing, petitioner put his hands around Roe’s neck and choked her. (AR 265 [HT 41:19:21].) While unable to breathe, Roe was able to say “stop” and attempted to push petitioner off with her hands on his chest so that petitioner would stop choking her. (AR 265 [HT 41:21-24].) Despite Roe having previously screamed and having told petitioner to stop, petitioner continued to kiss and touch Roe. (AR 265-66 [HT 41:25-42:2].) Petitioner turned Roe on her stomach and digitally penetrated her while Roe was face down. (AR 266 [HT 42:3-5].) Roe began to panic and tried to figure out how to extricate herself from the situation. (AR 266 [HT 42:5-9].) Roe turned her head and saw that petitioner had one hand inside her and one hand on his phone. (AR 266 [HT 42:9:13].) Roe then told petitioner to “get the fuck off [her],” at which point Roe was “truly, truly panicked.” (AR 266 [HT 42:14-15].)

            When petitioner stopped digitally penetrating Roe, Roe got up and attempted to get dressed. (AR 266 [HT 42:16-18].) Petitioner withheld Roe’s pants to prevent her from leaving. (AR 266 [HT 42:18-20].) Petitioner then pushed Roe back onto the bed. (AR 266 [HT 42:24].) Roe was able to get up, but petitioner came up behind Roe and wrapped his arm around her in a headlock, preventing Roe from breathing. (AR 266-67 [HT 42:25-43:3].) After Roe used her elbows to shove against petitioner’s chest, petitioner eventually released her. (AR 267 [HT 43:3-5].) Roe then attempted to gather her belongings and leave, at which point petitioner grabbed her by the wrist and pulled her back onto the bed. (AR 267 [HT 43:6-8].) Petitioner then berated Roe for 15 minutes, during which Roe tried to figure out how to leave without her life being threatened. (AR 56, 267 [HT 43:8-14].) Roe then tried to leave, at which point petitioner let her go. (AR 267 [HT 43:15-16].)

             Within minutes of leaving the scene of the incident, Roe called Witness 1, who did not answer. (AR 267-68 [HT 43:24-44:1].) Roe then called Witness 3, who went to Roe’s location. (AR 268 [HT 44:2-4].) During the investigation, Witness 3 stated that as he approached Roe, he saw her “sitting on a mound by some trees, with her knees against her chest, like she was cradling herself.” (AR 67, 81.) Witness 3 could hear Roe crying. (AR 67, 81.) Witness 3 described Roe as “very shaken,” “shocked,” and “overwhelmed.” (AR 67, 81.) Witness testified to the same effect at the hearing. (AR 424 [HT 200:7-201:11].)

Roe texted Witness 1 at 10:10 p.m. (AR 101.) When Witness 1 asked if Roe was “good,” Roe replied, “No[.] I got out of there but it was horrible.” (AR 101.) When Witness 1 asked where Roe was, Roe responded, “I’m sitting outside trying to pull it together before I go back to the dorm.” (AR 101-02.) When Witness 1 and Witness 2 returned to the dorm, they found Roe. Witness 1 observed Roe in “extreme distress,” crying and having a panic attack. (AR 81.) Witness 2 described Roe as “hysterical” and “sobbing” and “chok[ing] on her words because she was trying to hold back her tears.” (AR 81-82.) Roe remained upset after the incident, according to the three witnesses. (See, e.g., AR 391 [167:12-17], 412 [HT 188:14-20], 429-30 [HT 205:22-206:13].)

            The foregoing is substantial evidence that petitioner violated the SVSH Policy and UCLA Student Code provisions at issue here. A reasonable factfinder could find by a preponderance of the evidence that petitioner touched and penetrated Roe’s vagina without Roe’s consent and used force and violence by biting her, twice choking her, grabbing her, and throwing Roe on the bed. (AR 488; see also AR 152 [“Consent” defined in SVSH Policy as “an affirmative, conscious, and voluntary agreement to engage in sexual activity,” which “must be ongoing and can be revoked at any time during sexual activity”].)

            Petitioner argues that the “greater weight of the evidence” did not support a finding of responsibility. (Opening Br. at 9:8-10.) Petitioner misstates the standard. In cases of student sexual misconduct, a decision must be upheld if there is substantial evidence to support it. (Doe, 5 Cal.App.5th at 1073.) Nonetheless, petitioner maintains the finding of his responsibility is not supported because, among other purported inconsistencies:

·      Roe did not indicate in her text messages to Witness 1 that petitioner had sexually assaulted Roe. (AR 101-02.)

·      Witness 3 testified that Roe told him that petitioner had initially choked her with consent and pinned her down to the bed (AR 426 [HT 202:23-25]), which petitioner never told to the investigator or the Hearing Officer.

·      Petitioner could not have physically pinned Roe down because she physically outweighed him. (AR 443 [HT 218:24-219:5].)

·      Contrary to Witness 3’s testimony regarding what Roe told him (AR 427 [HT 203:19-22]), petitioner would not have called Roe a “frigid bitch” due to her refusal to engage in sexual activity with him because it is undisputed that he was unable to get an erection during the encounter (AR 245 [HT 21:7-8]).

·      Roe never told any of the three witnesses that petitioner had sexually or digitally penetrated her, which contradicts the Hearing Officer’s finding that Roe reported what had happened to Witness 1 and Witness 2 within a short period of time after leaving petitioner’s house. (AR 486.)

·      Roe first testified that petitioner “almost immediately” pushed her onto the bed and began groping her but later testified that they engaged in small talk for 10 minutes before engaging in sexual activity. (Compare AR 264 [HT 41:1-7] with 286-87 [HT 62:9-63:5].)

·      Roe testified during the hearing that the digital penetration was “no longer consensual” when she feared that petitioner was recording her using his phone, indicating that the digital penetration was at one point consensual. (AR 300 [HT 76:18-21].)

·      Roe could not remember on which side of her buttocks petitioner bit her. (AR 295 [HT 71:14-16].) Roe testified she showed the bite mark to Witness 1 (AR 296 [HT 71:17-72:5]), but Witness 1 did not remember being shown a bite mark. (AR 414 [HT 190:20-22].)

·      Roe did not tell her friends that petitioner was unable to get an erection and did not want to continue having sexual activity with her. (AR 396 [HT 172:22-24], 415 [HT 191:6-8], 432-33 [HT 208:24-209:1].)

The above purported inconsistencies raised by petitioner do not render the evidence in favor of Roe’s version of events insubstantial. The common thread in Roe’s testimony and the testimony of the three witnesses is that Roe indicated through screaming in pain and staying stop that she no longer wanted to engage in sexual activity with petitioner; yet, petitioner continued to sexually touch petitioner without consent by digitally penetrating her, choking her, and grabbing her wrists. Based on the three witnesses’ observations of Roe on the night of the incident and thereafter, the Hearing Officer was entitled to find that Roe’s version of events indeed occurred, as Roe would not have been as upset as described by the three witnesses if, as petitioner argues, Roe had merely been rejected by petitioner. It was not unreasonable for the Hearing Officer to have concluded that any inconsistencies regarding the sequence of events or the level of detail petitioner recounted to each witness concerning the incident were immaterial.

            With respect to petitioner’s argument that the Hearing Officer shifted the burden of proof onto petitioner, the Court disagrees. Petitioner and Roe presented two opposing events regarding what occurred during the incident. The Hearing Officer was entitled—indeed required—to assess the credibility of the parties and make findings. (AR 212 [“On any disputed and material issue, the hearing officer should make their own findings and credibility determinations based on all of the evidence before them”].) The Hearing Officer did not find that petitioner was required to prove that Roe was not credible and had a motive to lie. Rather, the Hearing Officer determined that Roe’s version of events was more credible because, for example, Roe would not have been as upset as she was if a sexual assault had not occurred. (AR 486-87.)  Simply put, the Hearing Officer did not improperly require petitioner to discredit Roe when the Hearing Officer made the ultimate determination of which competing account (petitioner’s or Roe’s) to believe, which necessarily required crediting one version of what happened over the other.

            Based on the foregoing, the Court finds that the Hearing Officer did not improperly shift the burden to petitioner and that the Hearing Officer’s conclusions were supported by substantial evidence.

B.           Propriety of Penalty

In the alternative, petitioner maintains that the University should be required to reflect in petitioner’s degree that he graduated in Fall 2022, which is when petitioner contends that he completed his degree requirements.

The UCLA Student Conduct Code allows a hold to be placed on a student receiving a degree from the University, meaning that a degree can properly reflect that a student graduated on the date that the suspension ends. (AR 569.)  Here, because petitioner received a three-year suspension after his appeal, his degree may reflect a Fall 2025 graduation date. (AR 548-49.)  Petitioner describes certain obstacles and difficulties he may face when having to explain his later graduation date to third parties, but petitioner presents no authority for this Court to order respondent to backdate petitioner’s diploma to reflect a different date of graduation. In the reply, petitioner cites to the portion of the Student Conduct Code that states that “the fact that the sanction was imposed must be posted on the academic transcript for the duration of the Suspension or Dismissal.” (AR 571.) That provision, however, does not necessarily require that, once a suspension ends, any reference to the suspension necessarily must be removed from the transcript or other school records, including a diploma.

            Accordingly, the Court declines to issue an order directing respondent as to how the graduation date shall be reflected on petitioner’s diploma.

V.      Conclusion

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent The Regents of the University of California shall prepare, serve, and ultimately file a proposed judgment.