1

Filed 2/13/24 Doe v. Regents of the University of California CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been 

certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOHN DOE,

Petitioner and Appellant,

v.

THE REGENTS OF THE 

UNIVERSITY OF CALIFORNIA

Respondent.

 A164398

 (Alameda County

 Super. Ct. No. RG20082204)

In September 2020, John Doe (Doe) was dismissed from the University 

of California, Berkeley (UCB) for violating its policy against sexual violence 

and harassment. He challenged the decision, ultimately filing a petition for a 

writ of administrative mandate against the Regents of the University of 

California (Regents). Doe alleges that he was denied a fair and impartial 

hearing because UCB utilized a “sole investigator/fact finder model” and 

failed to provide him with a “neutral adjudicator.” He additionally claims 

that the UCB investigator failed to perform a fair and thorough investigation

by failing to obtain an expert toxicology opinion. Finally, Doe contends that 

the findings of the hearing officer were not supported by substantial 

evidence.
2

The trial court considered and rejected all of these arguments, denying

the writ petition. Having conducted our own review of the administrative 

record, we affirm.

I. BACKGROUND

On October 18, 2019, UCB’s Office for the Prevention of Harassment 

and Discrimination (Title IX Office) received a complaint from student Jane 

Roe (Roe) alleging that student Doe had sexually assaulted her at her offcampus apartment on August 20, 2019.1 Pursuant to Title IX and the USB 

Policy on Student Conduct and Discipline (Student Conduct Code), the Title 

IX Office commenced an investigation. 

A. UCB Policies and Procedures Related to Discipline in Cases 

Involving Sexual Violence or Sexual Harassment

UCB adopted the Student Conduct Code which incorporates several 

Appendices. The Student Conduct Code outlines prohibited conduct, 

resources for students, procedures by which a misconduct allegation is 

investigated and adjudicated, and possible sanctions. Appendix E is 

incorporated into the Student Conduct Code and reflects a system-wide policy 

adopted by the Regents to address allegations of sexual violence and 

harassment on all University of California campuses.

UCB’s Title IX Office is responsible for receiving and responding to 

complaints regarding sexual violence or sexual harassment. The receipt of a 

complaint can trigger an investigation, overseen by the Title IX Officer, in 

1 Title IX of the federal Education Amendments of 1972 (20 U.S.C. 

§ 1681 et seq. (Title IX)) prohibits sex discrimination under any education 

program or activity receiving federal funds. Title IX has been applied to 

require universities to investigate allegations of sexual misconduct involving 

students. (Doe v. Regents of University of California (2022) 80 Cal.App.5th 

282, 286.) 
3

which an investigator is designated and charged with conducting “a fair, 

thorough, and impartial investigation.” If a formal investigation of a 

complaint will be conducted, notice of the charges is sent to the complainant 

and respondent. The notice includes information about the charges, describes

a five-stage investigative and adjudicative process, and advises the parties 

about their rights and available support resources. Included with the notice 

is information regarding the ability of the complainant and respondent to 

submit questions for the investigator to ask witnesses or the other party. 

The notice also advises that any investigative findings will be based upon the 

preponderance of evidence and describes the type of evidence that is 

considered by the investigator. Upon completion of the preliminary 

investigation and findings, the complainant and respondent are each given a 

copy of the Report of Investigation (ROI) and provided further opportunity to 

respond before the ROI is finalized. 

Where the investigation results in a recommendation of suspension or 

dismissal, as was the case here, a hearing to contest the preliminary 

investigation is automatically triggered. A separate and “appropriately 

trained” hearing officer is designated, who may be either a university 

employee or an outside contractor. The hearing officer and a hearing 

coordinator (who manages the procedural and administrative aspects of the 

hearing) conduct separate pre-hearing meetings with each party to discuss 

the hearing process and address questions. Formal rules of evidence and 

procedure do not apply to the hearing, and evidence will be received if the 

hearing officer considers it to be relevant and reliable. Under the policies, 

the investigative file is admitted into evidence at the hearing. In 

determining whether a policy violation has occurred by a preponderance of 

the evidence, the hearing officer considers the investigative file as well as any 
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evidence received at the hearing. The hearing officer’s findings are then 

forwarded to the Title IX Office and to Student Conduct for a determination 

as to the appropriate sanctions to be imposed. The complainant and 

respondent will receive notice of the determination and any sanction, as well 

as information regarding the right to appeal. An appeal is limited to three 

grounds: whether there was procedural error in the hearing that materially 

affected the outcome; whether the determination regarding policy violation 

was unreasonable based on the evidence before the hearing officer; and/or 

whether the sanctions were disproportionate to the hearing officer’s findings.

The decision on appeal is final. 

B. The Incident on August 20, 2019

Doe and Roe knew each other as they had the same major and mutual 

friends, including Roe’s ex-boyfriend. On the evening of August 20, 2019, Doe 

and Roe met for dinner. After dinner, they talked about going to a café or 

pub, but ultimately returned to Roe’s apartment. Roe’s roommate was not 

home. Roe’s bedroom was the living room, with her bed located in the corner 

near a wall. 

Doe and Roe agree that they both had some alcoholic drinks. Doe 

drank between four to five glasses of whiskey, while Roe drank one to three

beers. Doe and Roe also agree that, at a later point, Doe placed his penis in 

Roe’s vagina. Roe contends that she did not consent; Doe contends she did. 

According to Roe, she is a “ ‘lightweight’ ” and, after drinking the beer,

she felt intoxicated. She asked Doe when he was leaving and initially told 

him to leave at 10 p.m. but later told him by 11 p.m. She was wearing a 

dress and put on pajama bottoms under her dress. Due to her intoxication, 

she fell while trying to put on her pajama pants, and stumbled while walking, 

knocking over a shoe rack. Roe says that Doe remained in her apartment
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while she laid down on the floor and fell asleep. At one point, she woke up 

and saw Doe lying on her bed. Doe suggested she join him on the bed to sleep 

and stated that he was going home soon. As Doe was friends with Roe and

they had spent over 24 hours together in the past, she did not feel 

uncomfortable. Doe woke Roe up later to suggest they watch a movie, and 

she was able to get her laptop and unlock it after several attempts. Roe 

recalled falling back to sleep but woke up to find Doe touching her breasts 

over her clothes. She felt Doe put his hand in her underwear and touch her 

genitals. Roe recalls pushing Doe away and moving her body against the 

wall to stay away from Doe but feeling too intoxicated to stop it. She shook 

her body and frowned and made a sound like “ ‘nnng.’ ” Roe recalled Doe 

turned her body to face his, suddenly took her pants off and penetrated her 

vagina with his penis. Roe reported there was no foreplay or kissing and that 

it happened “really, really fast in a short amount of time” and without all of 

her clothes being taken off. Roe recalled that as she failed to cooperate, Doe 

moved her body to try to penetrate her from a different position.

Doe recalls the night differently. Doe had seen Roe far more 

intoxicated than she was that night. Doe acknowledged Roe was “ ‘midways’

drunk” or “tipsy” but that she was communicative and responsive. Doe never 

saw Roe pass out or become unconscious, and stated she walked normally 

and maintained a conversation. Doe acknowledged that, at some point, he

and Roe laid down on her bed together. According to Doe, he asked Roe if she 

wanted to watch a movie, she agreed, and together they laid on the bed and 

watched YouTube. Doe noticed Roe was not watching the laptop but looking 

at her phone. After five minutes, Doe asked Roe if she wanted to take her 

pants off, and she responded by removing her pants and underwear as did 

Doe. Doe observed the removal of clothing “happened naturally.” Doe and 
6

Roe mutually touched each other’s bodies, kissed each other’s cheeks or

necks, and ultimately Doe got on top of Roe and had sex while Roe wrapped 

her arms around his back. Doe agreed that he and Roe did not kiss each 

other on the mouth. As additional evidence of consent, Doe told the 

investigator that he touched Roe’s vagina and found it lubricated. Doe 

described Roe as initially participatory, that she verbally responded “yes” to 

indicate consent and maintained eye contact. Doe acknowledged that after 

15 minutes, Roe did not seem to be enjoying sex, and when Doe asked “ ‘[d]o 

you want this to stop,’ ” she said yes. Doe maintained that he ceased all 

sexual activity with Roe at that point. When Doe asked Roe if she wanted 

him to go home, she said yes, so Doe put his clothes on and returned to his 

own apartment.

After the incident, Doe and Roe exchanged numerous phone calls and 

text messages about what happened. Many of the written communications 

were considered as evidence. The substance of the communications was Roe’s 

assertion to Doe that she had not consented to engaging in sex with him. 

Doe’s responses largely acknowledged that Roe was unhappy, that Doe was 

sorry she did not like it, but that they had “ ‘both wanted it.’ ” Roe demanded 

that Doe secure the Plan B pill for her, which he did. Shortly after, Doe came 

with Roe’s ex-boyfriend to pick up the ex-boyfriend’s belongings at Roe’s 

house. He took a picture of himself doing so and posted it to his social media. 

On August 29, 2019, Roe filed a police report with the Berkeley Police 

Department. No criminal charges were filed. Later, Roe asked Doe to drop a 

class they were both in and he refused. Doe eventually submitted a written 

request to the university explaining the conflict with Roe and requesting to 

drop the class after the drop date. Two months after the incident, Roe filed 

her complaint with the Title IX Office.
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C. The Investigation and Recommendation for Dismissal

Following receipt of Roe’s complaint, a formal investigation was 

initiated by the Title IX Office. Attorney Emily Suran was designated as the 

Complaint Resolution Officer responsible for the investigation. Suran 

interviewed Roe, Doe and four non-percipient witnesses and obtained

documentary evidence including written statements and texts and electronic 

messages exchanged between Doe and Roe after the incident. After 

gathering these materials, Suran provided Doe and Roe with an opportunity 

to review the evidence and submit additional comments.

Suran substantiated Roe’s complaint, concluding by a preponderance of 

evidence that she found Roe’s version of the events more credible and 

consistent than Doe’s. Suran determined that Roe was incapacitated and did 

not consent to sexual contact by Doe and that Doe deliberately took 

advantage of her incapacity. Specifically, she found credible Roe’s “account of 

being intermittently asleep and unable to effectively communicate due to her 

intoxication.” Suran additionally found that Doe’s unwelcome sexual contact

interfered with Roe’s education by creating a hostile environment and thus 

constituted sexual harassment under Appendix E. Doe’s conduct also 

violated the Student Conduct Code. Suran issued her ROI on March 16, 

2020, setting forth the complaint; describing the procedures used to 

investigate the complaint; summarizing her interviews with Roe, Doe, and 

the non-percipient witnesses; and attaching copies of additional exhibits such 

as written statements, texts, and electronic messages. 

Based upon Suran’s preliminary findings, Senior Student Conduct 

Coordinator Rebecca Wallace informed Doe of the intent to dismiss him from 

UCB, pending hearing or appeal. Pursuant to the UCB procedures, an 

automatic appeal was triggered. 
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D. The Administrative Hearing and Appeal

The matter was assigned to hearing officer Lauren Becker, an attorney

from an outside law firm who was hired by UCB. Doe objected to Becker’s 

appointment on the basis that she was of a different gender and had externed 

for a judge that Doe had read negative things about. The request to 

disqualify was denied by Student Conduct. 

A two-day fact-finding hearing was conducted on July 16 and 17, 2020. 

Roe, Doe, and three non-percipient witnesses testified. Doe’s video feed was 

disconnected while Roe testified, but he listened to her and her interpreted 

testimony telephonically. The parties and the hearing officer were otherwise 

able to see and hear all witnesses. Roe testified and was questioned by the 

hearing officer. Doe was informed of his ability to question Roe by 

submitting questions to the hearing officer, but he did not do so. 

In a written decision, Hearing Officer Becker sustained the complaint 

against Doe, finding he had violated UCB policy by engaging in sexual acts 

with Roe without her consent and while she was incapacitated by sleep and 

alcohol. Since Doe contested the preliminary determinations in the ROI, 

Becker did not rely upon or consider those determinations during the 

hearing. Rather, Becker found Doe’s account to be inconsistent with 

documentary evidence, including his texts and electronic messages. In 

contrast, Becker found Roe’s account that the sexual contact was not 

consensual to be more credible, specifically noting that Roe “credibly 

described herself as intermittently asleep and ‘blacked out’ due to alcohol 

throughout the encounter.” For example, there were aspects of the encounter 

Roe did not recall, such as Doe inserting his finger in her vagina.

Based upon the hearing officer’s findings, the Title IX Office notified 

Doe he was dismissed from UCB. Doe appealed, alleging that the decision 
9

was not supported by the evidence and submitting detailed arguments 

disputing evidence and findings made by the hearing officer. Vice Chancellor 

Catherine Koshland denied his appeal, concluding that Doe had not described 

any procedural error and that the hearing officer’s determination was 

reasonable based on the evidence presented and credibility findings made. 

Doe was dismissed effective September 22, 2020. 

E. The Writ Petition and Trial Court’s Decision

On December 8, 2020, Doe filed a petition for writ of mandamus 

challenging his dismissal. With the filing of his opening brief, Doe requested 

that the trial court take judicial notice of a toxicologist’s report containing 

opinions regarding blood alcohol content of a female based upon weight and 

number of drinks that had not been presented during the administrative 

hearing. Doe argued that the proceeding was not fair because of the absence 

of a neutral factfinder and that the hearing officer’s findings were 

unsupported by substantial evidence.

The trial court denied the request for judicial notice and denied the 

writ petition, noting in particular that other witnesses had corroborated Roe’s 

statements regarding her low alcohol tolerance. This appeal followed.

II. DISCUSSION

A. Standard of Review

A student may challenge a disciplinary sanction of suspension or 

expulsion at a public university by way of a petition for writ of administrative 

mandate. (Doe v. Regents of University of California (2021) 70 Cal.App.5th 

521, 532 (UCSB)). The student seeking a writ of administrative mandate 

must show that the institution: (1) acted without, or in excess of, its 

jurisdiction; (2) deprived the student of a fair administrative hearing; or (3) 

committed a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, 
10

subd. (b).) Abuse of discretion is established if the respondent has not 

proceeded in the manner required by law, the order or decision is not 

supported by the findings, or the findings are not supported by the evidence. 

(Ibid.; Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 

1072 (UCSD).) We review the fairness of the administrative hearing de novo. 

(UCSD, at p. 1072.) Because student discipline does not involve a 

fundamental vested right, we review the substantive decision for substantial 

evidence in light of the whole record. (Id., at p. 1073.) 

B. Doe Was Not Denied a Fair Hearing

Code of Civil Procedure section 1094.5 subdivision (b) requires that 

there must have been “ ‘ “a fair administrative hearing.” ’ ” (Doe v. University 

of Southern California (2016) 246 Cal.App.4th 221, 239, citing Gonzalez v. 

Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 96.) 

In disciplining college students, the fundamental principles of fairness 

require, at a minimum, “ ‘giving the accused students notice of the charges 

and an opportunity to be heard in their own defense.’ ” (Doe v. Regents of 

University of California (2018) 28 Cal.App.5th 44, 56, citing Goss v. Lopez

(1975) 419 U.S. 565, 581.) Additionally, “[w]here student discipline is at 

issue, the university must comply with its own policies and procedures.” 

(UCSD, supra, 5 Cal.App.5th at p. 1073.)

1. Doe’s Claim He Did Not Have a Neutral Factfinder Is Not 

Supported by the Record

Doe contends that he was denied a fair hearing because the 

investigator’s report and findings were submitted into evidence and heavily 

relied upon by the hearing officer. He alleges that “[t]he sheer volume of 

duplicative findings and credibility determinations between the investigator 

and Hearing Officer decisions [sic] tends to show that Hearing Officer Lauren 

Becker did not make her own findings and credibility determinations, and 
11

instead simply adopted those of the investigator.” Relying on Doe v. Allee

(2019) 30 Cal.App.5th 1036 (Allee), Doe contends that the hearing was unfair 

because it “implemented a single individual acting as investigator, 

prosecutor, fact finder and sentencer.” (Id. at p. 1068.) We disagree.

2

Doe misapprehends Allee, applicable law, and the record in these 

proceedings. Even Allee, which involved a private university, acknowledged 

“that an administrative procedure in which a single individual or body 

investigates and adjudicates does not, ‘without more,’ violate due process.” 

(Allee, supra, 30 Cal.App.5th at p. 1067.)3 Moreover, the United States 

Supreme Court rejected a due process challenge to the combination of 

investigatory and adjudicatory functions in a single agency in Withrow v. 

Larkin (1975) 421 U.S. 35 (Withrow), finding that a medical licensing board 

possessing both investigatory and adjudicatory functions did not violate due 

process. (Id. at pp. 52–55.) Relying on Withrow, the California Supreme 

Court likewise concluded that the combination of investigative, prosecutorial,

2 We note that, under UCB’s procedures, Doe had the opportunity to 

appeal the hearing officer’s determination on the basis that a procedural 

error during the hearing process materially affected the outcome. Doe’s 

appeal did not assert procedural error. Arguably, he has therefore forfeited 

this procedural challenge. (UCSB, supra, 70 Cal.App.5th at p. 539.) 

However, since the facts of the matter are not in dispute, we exercise our 

discretion to consider this constitutional claim. (Doe v. University of 

Southern California (2018) 29 Cal.App.5th 1212, 1230.) 

3 Recently, our Supreme Court reiterated that “fair procedure” in the 

context of a private university requires only “ ‘adequate notice of the 

“charges” and a reasonable opportunity to respond’ ” and is not identical to 

due process. (Boermeester v. Carry (2023) 15 Cal.5th 72, 87, 90.) It 

disapproved Allee to the extent it held that a private university must allow 

an accused student to indirectly cross-examine witnesses at a hearing, even 

where the university’s policies do not provide for such a hearing. (Id. at 

pp. 95–96.) 
12

and adjudicatory functions within a single administrative agency does not by 

itself violate due process. (Morongo Band of Mission Indians v. State Water 

Resources Control Board (2009) 45 Cal.4th 731, 737 (Morongo Band).) 

However, “ ‘[p]rocedural fairness . . . does require some internal separation 

between advocates and decision makers to preserve neutrality.’ ” (Ibid.) 

That standard was clearly met here. 

Regardless, as a factual matter it simply cannot be said that there was

a single investigator and adjudicator in this case. UCB assigned Suran to 

investigate Roe’s complaint. Suran’s investigative report and findings were 

submitted to Senior Conduct Coordinator Wallace who recommended 

dismissal. Based upon the recommendation, an administrative hearing was

automatically triggered. UCB retained a neutral hearing officer, Becker, to 

hear the administrative hearing. An evidentiary hearing was conducted in 

which witnesses who were interviewed as part of the investigation also

testified. While the ROI was admitted as evidence, hearing officer Becker 

expressly stated she did not consider Suran’s preliminary determinations as 

they had been contested, instead concluding, based on her own review of all of 

the evidence, that Doe had violated the university’s restrictions against 

sexual violence and harassment. Based on Becker’s findings, the Title IX 

Office dismissed Doe. Doe’s dismissal was appealed to the Chancellor who 

denied the appeal.

No evidence exists that the investigator or hearing officer colluded or 

did not act independently. Other than disagreeing with their findings, Doe’s 

only objection to Becker was based on her gender and her association with a 

judge as an extern. Doe presents no evidence of investigator or hearing 

officer bias. Absent a financial interest in the outcome, adjudicators are 

presumed impartial. (Withrow, supra, 421 U.S. at p. 47; Morongo Band,
13

supra, 45 Cal.4th at p. 737.) Doe’s argument essentially is that the 

proceeding was unfair because both the investigator and the hearing officer 

found Roe credible. None of Doe’s arguments show an absence of 

independent evaluation; rather, they show a consistent view of the same

evidence by two independent persons.

2. A Fair Investigation Did Not Require the Investigator to 

Obtain an Expert Toxicology Opinion

Doe also claims that the investigator failed to perform a fair, thorough 

and impartial investigation as required by Appendix E by failing to secure 

evidence of the objective chemical effects of drinking one or two cans of beer.

In other words, Doe contends that under its policies, UCB had a duty to 

secure an expert toxicology opinion. Again, we are not persuaded. 

Appendix E does require UCB to conduct an investigation of allegations of 

sexual misconduct. But nowhere in the procedures does it require the 

university to hire an expert witness. 

Evidence of intoxication on the evening in dispute was addressed 

through the testimony of both Doe and Roe. Roe testified to falling asleep, 

being unable to stand, and knocking over a shoe rack. Doe acknowledged 

that Roe was under the influence but felt that “ ‘she seemed OK drunk.’ ” 

Other witnesses reported their experiences with Roe being a “lightweight” 

when drinking alcohol.

Discrepancy exists as to how much beer Roe drank with evidence 

ranging from one to three beers. However, lay opinion evidence of 

intoxication is routinely admitted in evidentiary proceedings to establish 

intoxication. (See People v. Navarette (2003) 30 Cal.4th 458, 493; People v. 

Williams (1988) 44 Cal.3d 883, 914; see also People v. Leahy (1994) 8 Cal.4th

587, 620 [layperson evidence of intoxication admissible as jurors sufficiently 
14

familiar with symptoms of intoxication that they are able to identify them], 

dis. opn. of Baxter, J.)4

While UCB did not have a duty to secure an expert toxicology opinion, 

the procedures also did not prevent Doe from doing so. From the start of the 

investigation, Doe was informed about Roe’s allegations and given the 

opportunity to respond to them. He also had the opportunity to present his 

own evidence and call his own witnesses at the hearing, which could have 

included providing expert testimony. 

C. Doe’s Dismissal Was Supported by Substantial Evidence

Doe next contends that the hearing officer’s findings were not 

supported by substantial evidence by arguing that Roe was not credible, that 

the amount of alcohol that Roe drank could not have rendered her 

incapacitated, and that the hearing officer did not correctly assess the 

evidence. By itself, this argument implicitly acknowledges the existence of 

evidence in the record. The fact that Doe disputes Roe’s version of the events, 

or is critical of her testimony, does not mean substantial evidence does not 

exist. Cases involving allegations of sexual assault are unique in that they 

typically “turn on a credibility contest between the accused and the accuser 

alone, since the act is most often committed in private.” (See People v. 

Gammage (1992) 2 Cal.4th 693, 697.) 

In reviewing the adjudicative decision of an administrative agency, a

reviewing court cannot substitute its own findings and inferences for that of

the agency. A reviewing court does not weigh evidence, consider the

credibility of witnesses, or resolve conflicts in the evidence or the reasonable

4 Doe’s own proffered expert opinion does not show the absence of 

alcohol in a female’s system based upon the hypothetical scenario. The 

declaration establishes a range of 0.4 to 0.7 BAC based upon assumed facts. 
15

inferences that may be drawn from it. (UCSD, supra, 5 Cal.App.5th at 

p. 1073.) “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.” (Akella v. Regents of University of California (2021) 61 

Cal.App.5th 801, 814.) Based upon this record, we cannot find that no 

reasonable person could reach the conclusion reached by the administrative 

agency. 

Specifically, assuming Doe’s credibility as we must, the determination 

that she was intermittently blacked out or asleep during the encounter is 

supported by substantial evidence in the record, including her own testimony 

and corroborating evidence as detailed above. The evidence also supports the 

conclusion that Doe deliberately took advantage of Doe’s incapacitation 

within the meaning of Appendix E. In sum, Doe was provided a procedurally 

fair hearing, and substantial evidence supports the agency’s decision. 

III. DISPOSITION

The judgment of the trial court is affirmed. Each party shall bear their 

own costs on appeal.
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GETTY, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A164398

 Judge of the Solano County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.