Judge James C. Chalfant, Case Number: 24STCP03264, Date: 2025-01-22 Tentative Ruling

Petitioner John Doe (“Doe”) seeks mandamus to set aside an Emergency Removal Order issued by Respondent University of Southern California (“USC”), which functions as an indefinite suspension from the law school campus and related off-campus activities.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Doe filed the Petition against Respondents Monique S. Allard, Ed.D., (“Allard”) and USC on October 11, 2024. He filed the First Amended Petition (“FAP”) on October 24, 2024, which is the operative pleading, alleging causes of action for traditional and administrative mandamus. The FAP alleges in pertinent part as follows.

Doe is a 1L law student at USC Gould School of Law on an academic scholarship that covers half-tuition, with the balance paid by student loans. Jane Roe (“Roe”) is a 1L classmate and has four classes with Doe. Doe and Roe sat next to each other in class, about 12 hours per week, and they formed a study group with another classmate. Doe has been in a committed relationship with his girlfriend for over a year and considered Roe and their study partner as platonic female friends.

On August 28, 2024, Doe, Roe, and the study partner watched the movie “Legally Blonde” together. On the night of August 28-29, 2024, the three study partners attended several social functions with other classmates, referred to as bar review. At the last location on the roof of Tuscany apartment, Roe became noticeably intoxicated and said that she was going to be sick. Doe walked Roe downstairs and a short distance to her apartment, where he met at least two of her roommates. Doe and Roe arrived at her apartment shortly after 10:00 pm. In the apartment, Roe, who was intoxicated, leaned in to kiss Doe, but Doe pulled away. Roe vomited and Doe sat with her for over an hour as she recovered from her intoxication.

While recovering in the bathroom, Roe asked Doe to retrieve her phone from their study partner. Roe told Doe where to find her apartment key in her room so he could re-enter the apartment without disturbing her roommates or requiring Roe to answer the door. Doe came back to the apartment and gave Roe her phone, left again to drive to the study partner’s home, and then returned to Jane Roe’s apartment where she was still in the bathroom.

After Roe sobered up, she and Doe went to her bedroom. Doe told her that he was going to leave, but he needed to find his phone. Roe asked Doe to lie down next to her on the bed, and he sat on the bed next to her. Roe then took his hands and pulled them towards her vaginal area. Doe had no romantic interest in Roe and told her that he just wanted to go home. As Doe was going towards the door to leave, Roe grabbed him to come back into her bedroom. She also groped Doe and attempted to take his clothes off, pulled his pants down and took a sleeve of his shirt off. Roe attempted to physically restrain Doe from finding his phone, but she eventually agreed to call his phone from her phone so they could locate it. Roe continued to forcefully pull on Doe and attempt to kiss him.

On September 14, 2024, Roe texted Doe about what happened between them on August 29, 2024. Doe called her and explained how she acted inappropriately that evening but that he had moved past it.

On September 15, 2024, Doe reported Roe’s August 29-30th conduct to USC. On September 16, 2024, Doe met with USC Dean Nickey Woods to follow-up on his report.

On information and belief, Roe also made a report to USC against Doe and contacted law enforcement on September 16, 2024. Roe purports to have recovered memories about two weeks after the alleged incident.

On September 16, 2024, Roe called Doe twice to discuss what happened in her apartment on August 29-30th. Unbeknownst to Doe, the phone calls were pretext calls directed by law enforcement. During the first call, Doe denied that the two had sex and described the conduct that had occurred, that Roe had been the aggressor, that they never had sex, and that Roe had pushed his hand into her vagina. During the second call, Roe asked Doe to go with her to get a pregnancy test. Doe said no, but he would get one to drop one off to her. When Doe arrived to drop off the pregnancy kit to Roe’s apartment, he was arrested. No criminal charges were filed, and the matter is still under investigation.

On September 18, 2024, Roe obtained a civil harassment temporary restraining order (“TRO”). The TRO hearing has been continued to December 19, 2024. The TRO allows Doe to attend law school, if permitted by USC and so long as Doe complies with the TRO and stays ten yards away from Roe on campus.

Also on September 18, 2024, Doe received a Notice of Emergency Removal from USC EEO-TIX Director Linda Hoos. The Emergency Removal Order was based on Roe’s allegations and the issuance of the TRO.

Doe timely appealed the Emergency Removal Order, denied the allegations made by Roe, and submitted evidence in support of his appeal. On September 30, 2024, Respondent Allard denied Doe’s appeal of the Emergency Removal Order.

On October 16, 2024, the court denied Doe’s ex parte application for a stay of the Emergency Removal Order and set an expedited briefing schedule for trial.

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085. Traditional mandamus permits judicial review of ministerial duties as well as quasi-legislative and legislative acts. County of Del Norte v. City of Crescent City, (1999) 71 Cal.App.4th 965, 972.

A traditional writ of mandate is the method of compelling the performance of a legal, ministerial duty required by statute. See Rodriguez v. Solis, (1991) 1 Cal.App.4th 495, 501-02. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.” Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

In the absence of a ministerial duty, traditional mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion. An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.” Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106. In applying this deferential test, a court “must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.” Western States Petroleum Assn v. Superior Court, (1995) 9 Cal.4th 559, 577. Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner. American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (2005) 126 Cal.App.4th 247, 261. It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71. In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom. Id. at 371. A writ will lie where the agency’s discretion can be exercised only in one way. Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

USC notes that Doe’s counsel represented at the October 22, 2024 trial setting conference that the Petition lies in traditional mandamus under CCP section 1085 whereas USC’s counsel asserted that Doe could not seek relief for traditional mandamus as the Emergency Removal decision was not a ministerial act. See RJN Ex. C. In his opening brief, Doe explains that USC’s Emergency Removal decision was a prejudicial abuse of discretion. USC argues that Doe fails to establish that the Emergency Removal decision is the type of decision that can be addressed through traditional mandamus because Doe cannot show that (1) USC has a clear, present and ministerial duty and (2) Doe has a clear, present and beneficial right to the performance of that duty. Opp. at 11-12.

USC additionally argues that, while Doe does not rely on administrative mandamus in his opening brief, the FAP alleges that the Emergency Removal decision is a “final administrative decision” subject to challenge by way of administrative mandate.” FAP ¶50. His opening brief seemingly reserves his right to have his writ proceed as a section 1094.5 claim. Pet. Op. Br. at 14, n. 3. Yet, Doe fails to demonstrate that the Emergency Removal is a final administrative decision and that he therefore exhausted his administrative remedies, thus rendering his alternative CCP section 1094.5 claim deficient. To the contrary, and as clearly stated by Allard, the Emergency Review decision is merely one stage in USC’s resolution process. AR 234. Opp. at 15-17.

USC misunderstands Doe’s position. Although his opening brief refers to both traditional mandamus and administrative mandamus (Pet. Op. Br. at 14-16), Doe relies on the discretionary abuse of discretion prong of traditional mandate, which requires a showing that Allard’s decision is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.” Kahn v. Los Angeles City Employees’ Retirement System, supra, 187 Cal.App.4th at 106. Pet. Op. Br. at 14, n. 3; Reply at 6-7.

Doe is correct to rely on this deferential standard. As USC argues, there is no ministerial duty at issue. Moreover, Allard’s decision is not reviewable in administrative mandamus. Even if Allard’s decision arguably can be deemed final on the subject of Emergency Removal, CCP section 1094.5(a) does not apply unless there has been a proceeding that required a hearing, the taking of evidence, and discretionary administrative determination of facts. Helene Curtis, Inc. v. Los Angeles County Assessment Appeals Board, (2004) 121 Cal.App.4^th 29, 37. Purely documentary proceedings can satisfy the hearing requirement of CCP section 1094.5 so long as the organization is required by law to accept and consider evidence from both sides. Friends of the Old Trees v. Department of Forestry & Fire Protection, (1997) 52 Cal.App.4th 1383, 1391. However, where an organization makes a decision based upon one party’s unilateral submission of information without considering evidence from opposing parties, no hearing occurs within the meaning of CCP section 1094.5. 300 DeHaro Street Investors v. Department of Housing and Community Development, (2008) 161 Cal.App.4th 1240, 1250. USC’s appeal procedure for an Emergency Removal Order requires evidence only from the student and therefore does not qualify as a hearing for purposes of CCP section 1094.5.

The deferential abuse of discretion standard for traditional mandamus applies to this case.

Doe correctly summarizes the law concerning student discipline at a private university. See Pet. Op. Br. at 12-13.

The doctrine of judicial non-intervention into the academic affairs of schools does not apply in instances of non-academic affairs, including the Emergency Removal proceeding at USC. See Banks v. Dominican College, (1995) 35 Cal.App.4th 1545; Paulsen v. Golden Gate University (1979) 25 Cal.3d 803.

Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation is so insubstantial that student discipline may be imposed by any procedure the school chooses, no matter how arbitrary. Goss v. Lopez, (1975) 419 U.S. 565, 576. “The student’s interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences .... Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.” Id. at 579-80. At a minimum, students facing academic discipline such as suspension or expulsion must be given notice and afforded a hearing. Id. at 579.

While California law does not require any specific form of disciplinary hearing, a university is bound by its own policies and procedures. Berman v. Regents of University of California, (2014) 229 Cal.App.4th 1265, 1271-72. A fair process requires the university to present the evidence to the accused individual so that he has a reasonable opportunity to prepare a defense and to respond to the accusation. Doe v. University of Southern California, (2016) 246 Cal.App.4th 221, 245-46. Moreover, limited, incomplete, and untimely access to the evidence impedes the accused’s ability to respond to the evidence and present relevant evidence in his defense. Doe v. Regents of University of California, (2019) 28 Cal.App.5th 44, 57-60.

“Certain circumstances may warrant removing a student Respondent from a University program or activity. The University may remove a student Respondent on an emergency basis from University property or employment, education, or research programs or activities. Before imposing an emergency removal, the University will undertake an individualized analysis of safety and risk for the campus community to determine whether the Respondent’s presence in the program or activity poses an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Prohibited Conduct, and justifies removal of the Respondent from the University program or activity. In making this determination, the VP of EEO-TIX may consult with campus partners who review interim actions or conduct threat assessments.

The VP of EEO-TIX will promptly provide the Respondent with written notice of any removal and an opportunity to challenge the removal. During any challenge, the Respondent will remain off campus and must comply with the notice of removal. That notice shall include a statement that any information the Respondent chooses to provide may subsequently be used in implementing any aspect of this Policy, including the investigation and adjudication of the allegations of Prohibited Conduct. The Respondent will have 72 hours from the date of the removal to submit a written challenge to the safety and risk analysis to the VP of EEO-TIX.” AR 29.

Emergency Removal requires an individualized analysis of safety and risk for the campus community to determine whether the Petitioner’s presence in the University program or activity poses an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Discrimination, Harassment or Retaliation, and justifies removal of the Respondent from the University program or activity. AR 262.

Doe began his first year as a USC law student in August of 2024. AR 255. Doe attends USC on an academic scholarship that covers half-tuition, with the balance paid by student loans. AR 121, 255. Doe has no history of discipline or violence. See AR 128-32.

Doe first met fellow law student Roe a week prior to their orientation at USC. AR 121. Shortly thereafter, Doe and Roe became friends and exchanged text messages on a regular basis. Roe and Doe were also in a study group with one of Roe’s roommates AR 255. Doe has been in a committed relationship with his girlfriend for over a year and considered Roe and their other study partner as platonic female friends. AR 255.

The evening of August 29, 2024, Roe went to a friend’s house to consume alcohol prior to attending “Bar Review,” a law school social event. AR 103. Doe was also at the house and had brought a bottle of Hennessy with him, which he shared with Roe. AR 256. Roe also drank Mike’s Hard Lemonade before heading to Bar Review. AR 103. While at the Bar Review, Roe began to feel noticeably intoxicated and experienced significant gaps in her memory at around 10:00 pm, which concerned her friends who were present. AR 103.

Initially, Roe had limited recollection of how she returned to her apartment from the party. USC AR 108, 113. Roe recalled that she left the event but did not recall the walk back to her apartment with Doe. USC AR 79. Roe said that her roommates told her that when she entered her apartment, she went to the bathroom to vomit. USC AR 79-80. The next morning, August 30th, Roe noticed that she had two bruises on her inner thighs and was experiencing vaginal discomfort but could not immediately recall why she was bruised and in pain. USC AR 79.

Roe later informed USC that she had never experienced memory loss before and that she had previously consumed more alcohol than she did on the night of the incident with no similar effect having occurred. USC AR 111. Doe later admitted to Roe that he was sober during the night of the incident. USC AR 177.

On September 13, 2024, Roe began to remember more details from what happened on August 30th with Doe between 1:00-4:00 a.m. USC AR 80-81. Roe discussed those recollections with her friend who took notes, and then proceeded to discuss her concerns with Associate Dean Nickey Woods (“Woods”) later that same day. USC AR 80-81. Among other things, Roe reported that Doe sexually assaulted her while she was unconscious during the early morning of August 30, 2024. USC AR 80-81. Roe stated that she drank at the bar and “blacked out,” went in and out of consciousness, and woke up to find Doe in her bed. She noticed that her undergarments had been removed and Doe was touching her, and recalled Doe having sex with her—none of which occurred with her affirmative consent as she was unable to provide consent. USC AR 80-81.

USC’s Title IX Office confirmed receipt of Roe’s initial complaint on the same day. USC AR 39.

On September 15, 2024, Roe recorded a phone call between Doe and herself to discuss the events that had occurred. USC AR 80.

On September 16, 2024, Roe reported the incident to the Los Angeles Police Department (“LAPD”) and met with officers at her apartment, who gathered some items for testing. USC AR 131. Roe later went to an LAPD station to set up a pretext call with Doe. USC AR 131. She reported that LAPD detectives were present in the room and recorded Doe admitting to digitally penetrating Roe’s vagina, although he denied raping her. USC AR 131.

LAPD then asked Roe to call Doe again to gain information. USC AR 132. During that second call, LAPD informed Roe that the detectives wished her to get Doe to come to her apartment so that they could arrest him. USC AR 132. Roe called Doe and asked him to take her to get a pregnancy test. USC AR 132. Doe agreed to meet Roe at her apartment where he was arrested by LAPD in connection with her report of sexual assault. USC AR 96-97, 132.

On September 15, 2024, Doe filed a report with USC against Roe which reported staff categorized as a type of prohibited discrimination, harassment, and retaliation. USC AR 54-56. Doe contended that he and Roe were intoxicated on August 29, Roe was “blackout drunk,” Roe physically restrained him from leaving her apartment after he walked her there, meaning that she grabbed his arm. USC AR 56. Doe’s report did not raise any concerns about his physical safety in connection with Roe. USC AR 54-56.

On September 16, 2024, Doe met with Assistant Dean Woods to follow-up on the report he had made the day before. AR 125, 258.

Roe met with USC officials on September 17, 2024, and stated her concern that moving seats in class was completely unacceptable and that she would not feel safe if Doe were on campus. USC AR 131, 144, 147. Roe indicated that she has five roommates who also were concerned about their safety. USC AR 144. Doe knew her address and Roe was worried that he would come to her apartment now that he had been arrested. USC AR 147.

Roe submitted a formal complaint against Doe on September 18, 2024. USC AR 195-97. In her complaint, Roe recounted the events leading to her alleged sexual assault. USC AR 195-97. She contended that she was very intoxicated and feeling sick and remembered walking home. USC AR 196. She woke up in bed wearing her dress but without underwear and with Doe lying next to her. USC AR 196. She then remembered waking up with her arms around the toilet. USC AR 196. Later she woke up in bed, naked and on her stomach, with Doe first penetrating her vagina with his finger and then with his penis from behind. USC AR 196. Doe removed his penis and joked that he did not want a baby to be born between students in their law school section. USC AR 196-97.

Roe sought a temporary restraining order (“TRO”) against Doe which the court granted on September 18, 2024. AR 186-94. The TRO specified that Doe must stay at least 100 yards away from Roe, reduced to ten yards on campus if USC permitted him to do so. USC AR 190.

USC initiated an individualized risk assessment in which staff discussed the reported information and assessed various risk factors to determine whether Doe should be removed from the law school program pending the completion of investigation and possible hearing under the Resolution Process. USC AR 205-07.

On September 18, 2024, USC issued an Emergency Removal order against Doe. USC AR 205-07. USC considered risk factors that Doe had been arrested on September 16, 2024 and released on bond, the law enforcement investigation against him was active, Doe reportedly made statements to Roe on the phone related to the occurrence of sexual contact with Roe on August 29, Roe was visibly intoxicated on August 29, Roe alleged that she had been sexually assaulted, and Roe alleged that she and her classmates had been severely impacted by Doe’s conduct and were concerned about safety if he were present on campus. USC AR 206. USC determined that Doe’s presence at the law school posed an immediate threat to the physical health or safety of a student or other individual justifying Emergency Removal based on identified risk factors. USC AR 206.

The Notice of Emergency Removal outlined Doe’s right to appeal the order and well as his right to explore the possibility of participating in coursework remotely, virtually, or asynchronously. USC AR 206.

Doe filed his formal complaint against Roe on October 16, 2024. USC AR 236-38. He alleged that he had not been willing to leave Roe unattended at the Bar Review or with her roommates because he had lost a friend to alcohol poisoning and felt a duty to make sure that Roe was okay, and Roe asked him to stay. AR 122, 153. He walked Roe downstairs and a short distance to her apartment, where he met at least two of her roommates. AR 122, 153. Doe and Roe arrived at her apartment shortly after 10:00 p.m. AR 121-22.

In the apartment, Roe, who was intoxicated, leaned in to kiss Doe but Doe pulled away. AR 256. Roe vomited in the toilet and Doe sat with her for over an hour as she recovered from her intoxication. AR 153, 256. While recovering in the bathroom, Roe asked Doe to retrieve her phone from their study partner, with whom Roe had left it. AR 153, 256. When Doe left to retrieve Roe’s phone, Roe told Doe where to find her apartment key in her room so he could take the key and re-enter the apartment without disturbing her roommates or requiring Roe to answer the door. AR 256.

Doe came back to the apartment and gave Roe her phone, then left again to drive to their study partner home, and then returned to Roe’s apartment where she was still in the bathroom. AR 256.

After Roe sobered up and said she felt better, Roe and Doe went to her bedroom and Doe told her that he was going to leave, but that he needed to find his phone first. AR 153, 256. Roe asked Doe to lie down next to her and he did. AR 122. Roe took Doe’s hands and pulled them towards her vagina. AR 256. Doe had no romantic interest in Roe and told her that he just wanted to go home. AR 122, 153, 256.

As Doe was leaving, Roe attempted to take his clothes off, pulling his pants down and pulling off a sleeve of his shirt. AR 153, 256. Doe got his clothing back on and insisted that she call his phone so he could find it. AR 257. (Doe’s phone records show the two calls that Roe made to Doe’s phone at 4:06 a.m. AR 209.)

Roe continued to forcefully pull Doe and attempt to kiss him the entire way from her bedroom and through her apartment until they reached the hallway. AR 209. (Security video confirms the interaction between Roe and Doe as he was leaving her apartment, with Roe trying to get Doe to stay. AR181-200, 266.) Doe left the apartment at 4:18 a.m. AR 123, 257.

That afternoon Roe and Doe spoke on the phone for 14 minutes and Roe invited Doe to join her at a carnival on the USC campus, but he declined. AR 123, 209. A few hours later, Roe texted Doe: “Are you upset?” AR 209. Doe eventually replied that he wasn’t upset, and they texted for about 15 minutes and then spoke on the phone for almost four hours. AR 124, 209-210, 257.

On September 24, 2024, Doe, through counsel, filed a challenge to the Emergency Removal. USC AR 209-28.[3]

On September 30, 2024, Allard issued a final decision on Doe’s challenge. USC AR 234-35. Allard confirmed the Emergency Removal decision, noting that her review was limited to evaluating the individual safety and risk analysis rather than making findings of facts and responsibility, and that Doe’s written challenge did not provide any information that would alter the safety and risk analysis conducted by USC, which formed the basis for the Emergency Removal Order. USC AR 233-34.

On September 27, 2024, USC issued a Notice of Investigation that included Roe’s allegations but not Doe’s allegations. AR 141-47. On October 29, 2024, Respondents issued an Amended Notice of Investigation that included Doe’s allegations against Roe. AR 151-58. The Amended Notice of Investigation superseded and replaced the original Notice of Investigation. AR 151.

O December 23, 2024, Doe’s criminal defense counsel spoke with Jessica Goulden of the District Attorney’s Office and was informed that the District Attorney’s Office had rejected prosecution of Doe. Shapiro Decl., ¶1.[4]

Petitioner Doe seeks traditional mandamus to set aside the Emergency Removal Order as arbitrary and capricious, or entirely lacking in evidentiary support. See Kahn v. Los Angeles City Employees’ Retirement System, supra, 187 Cal.App.4th at 106. The court’s deferential standard of review is dispositive.

Doe argues that Roe’s allegations that she started remembering in the weeks after August 30^th, even if not false, do not support the Emergency Removal Order decision that he poses “an immediate threat to the physical health or safety of any student or other individual arising from [those] allegations of Prohibited Conduct.” In the weeks following August 30, 2024, there was an abundance of interactions, phone calls, and messages between Roe and Doe, and yet a complete absence of anything that could remotely be considered as a threat or threatening to physical health or safety of anyone. Pet. Op. Br. at 17.

When the Emergency Removal Order was issued on September 18, 2024, USC knew that Doe had also reported “Prohibited Conduct” by Roe but took Emergency Removal action only against him. AR 117. The Emergency Removal decision relies entirely on Roe’s uncorroborated allegations, which were also the basis for issuance of the civil harassment TRO and Doe’s arrest. The only risk factors identified as considered by USC were: (1) Doe’s arrest, subsequent detention, release on bond, and active law enforcement investigation; (2) Roe’s claim that he admitted to inserting his fingers into her vagina during the 21 minute pretext call; (3) Roe’s intoxication on August 30, 2024; and (4) the severity and impact of Roe’s allegations on “reporting Party and other students.” AR 103. None of these factors have anything to do with any risk of physical health and safety during law school classes on campus and assume that Roe’s allegations are factually accurate. The Emergency Removal Order is punitive, and an improper sanction imposed before any determination whether Roe’s allegations are true. In the absence of any showing that Doe’s presence on campus “poses an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Prohibited Conduct”, the Emergency Removal decision is an abuse of discretion. USC’s belatedly acknowledgment of Doe’s allegations, reported to the school before his arrest and the TRO, shows the arbitrary nature of the Emergency Removal decision. Pet. Op. Br. at 17.

USC’s actions were not arbitrary, capricious, or without evidentiary support.[5] The Administrative Record shows that USC considered the known circumstances and risk factors, the most significant of which were: (1) Roe’s visible intoxication, which Doe acknowledged; (2) Roe’s allegation that Doe engaged in sexual assault by penetration and intentional touching of Roe’s vagina with his finger and/or penis while she was incapacitated and not able to consent; (3) Roe’s allegation that Doe admitted in a LAPD-recorded pretext call that he digitally penetrated Roe’s vagina, although he denied raping her. USC AR 131; (4) Doe’s September 16, 2024 arrest on felony charges by LAPD, his release on bond, and LAPD’s active criminal investigation; and (5) Roe’s expression of concern for her safety if Doe is present on campus, as well as her expression of her roommates’ concern. USC AR 201-02.

Aside from the parties’ mutual accusations, the Administrative Record shows that Doe was formally arrested and had to post bail. Roe also obtained a TRO and repeatedly raised personal and community safety concerns about Doe’s presence on campus. These are the facts causing the retaliation safety concerns of Roe and her roommates. While Doe can argue that Roe triggered her own safety concerns by causing his arrest and obtaining a TRO, USC still was entitled to rely on these facts in making a risk assessment. By contrast, Doe’s written submissions to USC never raised any personal physical safety concerns about Roe’s presence on campus. As USC argues (Opp. at 14), the mere fact that Doe also made a formal claim against Roe does not mean the Emergency Removal Order should be invalid. Such a conclusion would not be reflective of USC’s individualized review and assessment concerning Doe.

In upholding the Emergency Removal Order, Allard noted that Doe denied any misconduct. USC AR 234. She also noted that his challenge included potentially relevant video evidence that had been preserved by a third-party and text messages exchanged between the parties on August 30 and August 31, 2024, he submitted character references, and his concern that Roe made a false report because she knew Doe intended to submit a formal complaint against her. AR 234.[6] Allard noted that her role was to make an individual safety and risk analysis, not to decide the underlying allegations, and that Doe’s challenge did not provide any information that would alter the safety and risk analysis which formed the basis for the Emergency Removal order. AR 234. This was not an abuse of discretion.

The standard of review is dispositive of the FAP, which is denied. Respondent USC’s counsel is ordered to prepare a proposed judgment, serve it on Doe’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for February 20, 2025 at 9:30 a.m.

[1] Doe’s reply was served on December 30, 2024, one court day after it was due on December 27, 2024 under the expedited briefing schedule. Doe explains that USC served a new and different administrative record on December 20, 2024 which affected the already shortened time for his reply. Although the reply was not actually filed until January 6, 2025, the court accepts this explanation and USC has suffered no prejudice.

[2] USC requests judicial notice of: (1) an October 9, 2024 minute order from a hearing before Commissioner Laura Cohen (RJN Ex. A); (2) this court’s October 22, 2024 minute order (RJN Ex. B); (3) a December 19, 2024 minute order from a hearing before Commissioner Cohen (RJN Ex. C). Exhibits A and C are judicially noticed. Evid. Code §452(d). There is no need to judicially notice a minute order from the instant case (Ex. B). A court can always review the instant court file.

[3] It appears that some or all of the evidence in Doe’s formal complaint was presented for his challenge to the Emergency Removal Order.

[4] USC’s written objection to this declaration is overruled. The statement is received for notice and impact on the parties. Moreover, this case lies in traditional mandamus and the parties are not limited to the Administrative Record, although evidence subsequent to the agency decision is of limited value.

[5] Doe makes no argument that USC failed to follow its own procedure or otherwise were unlawful or procedurally unfair.

[6]The timeline is as follows. Roe first raised specific concerns that she had been sexually assaulted by Doe on September 13, 2024. USC AR 36-38. Doe first raised unspecified concerns against Roe two days later, on September 15, 2024. USC AR 54-56. Doe was arrested after a pretext phone call on September 16, 2024. AR 103. Roe filed a formal complaint against Doe on September 18, 2024. USC AR 195-97. The court also granted the TRO against Doe on September 18, 2024. AR 186-94. The Emergency Removal Order was upheld on September 30, 2024. AR 234-35. Doe filed a formal complaint against Roe on October 16, 2024. USC AR 236-38.

While this timeline shows that Roe was ahead of Doe in making accusations, Doe argues that Roe only began to remember details of the August 30 events on September 13, 2024, after she became concerned that Doe was angry with her. AR 209. He notes that they spoke for four hours the next morning, August 31, 2024, and almost daily thereafter, and also spent at least 12 hours a week in class sitting next to each other, more hours in their study group, and directly messaged frequently. AR 209-18, 219-54. Reply at 4-5. The court draws no conclusions from the timeline.