Filed 7/2/19; Certified for Publication 7/24/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JOHN DOE,

Plaintiff and Appellant,

v.

OCCIDENTAL COLLEGE,

Defendant and Respondent.

 B282292

 (Los Angeles County

 Super. Ct. No. BS150532)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, James C. Chalfant, Judge. Affirmed.

Werksman Jackson Hathaway & Quinn, Mark M. 

Hathaway and Jenna E. Eyrich for Plaintiff and Appellant.

Epstein Becker & Green, Jonathan M. Brenner and Susan 

Graham for Defendant and Respondent.

——————————
2

FACTUAL AND PROCEDURAL BACKGROUND

John Doe (Doe) appeals from the judgment of the trial court 

denying his petition for writ of mandate. (Code Civ. Proc., 

§ 1094.5.) He sought to set aside his expulsion from Occidental 

College after an outside adjudicator found he had sexually 

assaulted and engaged in non-consensual sexual contact with 

Jane Roe (Roe), another student. Doe contends he was denied a 

fair hearing and the decision was not supported by substantial 

evidence. For the reasons given below, we affirm the judgment.

I. Occidental’s sexual misconduct policy

Occidental has a comprehensive policy (the policy) that 

prohibits “all forms of . . . misconduct, including . . . sexual 

assault” and “[n]on-[c]onsensual [s]exual [c]ontact.” The policy, 

which applies to all members of the Occidental community, 

defines these terms and explains the concepts of consent and 

coercion.

Occidental’s policy contains thorough procedures for 

adjudicating policy violations. Upon receipt of a report of a 

potential violation of the policy, Occidental may impose 

reasonable and appropriate interim measures to eliminate the 

hostile environment and protect the parties. Such measures 

include a campus-wide “[s]tay-[a]way [l]etter,” changing class 

schedules, and an interim suspension.

With a sexual misconduct report, Occidental’s Title IX team 

conducts an “Initial Title IX Assessment.” Occidental gathers all 

of the relevant facts and determines whether to pursue an 

informal resolution, or whether there is sufficient information to 

refer the report to a hearing panel for disciplinary action in a 

formal resolution format. Occidental notifies the respondent, the 
3

alleged perpetrator, when it seeks action that would have an 

impact on the respondent, such as protective measures that 

restrict his or her movement.

If the Title IX team concludes that disciplinary action may 

be appropriate, Occidental initiates an investigation, by either an 

Occidental employee or an external investigator. The 

investigation “will typically include interviews with the 

Complainant, the Respondent and any witnesses,” and the 

gathering of any documents and other evidence. The policy 

requires the investigation be “thorough, impartial, and fair” and 

“designed to provide a fair and reliable gathering of facts” under 

“principles of fundamental fairness and respect for all parties.” 

All individuals in this investigation, including the respondent, 

are to be treated with “appropriate sensitivity and respect.”

The investigator prepares a written report, based on which 

the Title IX team and hearing coordinator will “make a threshold 

determination as to whether there is sufficient information upon 

which an adjudicator could find a violation of this policy.” When 

an adjudicator could find a policy violation, Occidental may 

institute formal resolution proceedings against the respondent 

involving a hearing before either a faculty panel or an external 

adjudicator. 

The hearing coordinator sends a written notification letter 

to the respondent containing a brief summary of the conduct at 

issue and the specific provision of the policy violations that are 

alleged to have occurred. The hearing coordinator also schedules 

separate meetings with the parties to explain the hearing process 

and to answer questions. The parties may review all 

investigative documents “at least five (5) business days prior to 

the hearing.” At the hearing itself, the parties may call all non-
4

character witnesses who were interviewed by the investigator, 

make oral or written inquiries of the investigator, and address 

outstanding factual issues.

The adjudicator determines responsibility by a 

preponderance of the evidence and recommends appropriate 

sanctions to the hearing coordinator. The respondent may appeal 

the final outcome to an impartial decision-maker. 

II. The sexual misconduct allegations against Doe and the 

interim measures

The administrative record shows that Roe, a freshman, 

reported to Occidental’s Title IX office an incident of sexual 

misconduct by Doe, a junior, that occurred on September 28 to 29, 

2013. Roe asked for a stay-away letter. On October 28, 2013, the 

dean of students issued Doe a stay-away letter instructing him to 

refrain from approaching Roe, or from calling, texting, 

communicating with, or sending her messages. 

The following day, Doe went to the dean of students’ office 

who directed him to Nadia Palacios (Palacios), the coordinator of 

Occidental’s Project Sexual Assault Free Environment (Project 

SAFE), a victim’s advocacy center. Doe and Palacios recognized 

each other because Doe had heckled her during a Project SAFE 

presentation a month earlier. Palacios told Doe that she was a 

survivor advocate only and repeatedly directed him back to the 

dean of students or to the Title IX office. Doe “smirked” at 

Palacios and complained about the stay-away letter, asserting 

that Occidental appeared to accept Roe’s account of events and to 

take his version less seriously. Palacios explained that her office 

was duty-bound to accept a complaint at face value and then to 

investigate. Nevertheless, Doe continued to talk. Palacios 

eventually calmed him down. But, as he stood up to leave, Doe 
5

saw an educational poster debunking “rape myths” and became 

visibly angry. He yelled at Palacios loudly and aggressively for 

10 minutes that “ ‘[t]hese girls wear whatever they want and they 

tease us all night and they expect us not to get anything;’ ” “ ‘[t]he 

girls owe him something;’ ” and “ ‘[n]othing ever happened that 

night. I don’t even know this girl.’ ” Doe was “very emotional 

and vented.” Palacios felt threatened by his conduct, although 

Doe never explicitly threatened her. 

Doe’s outburst was overheard by Kristofer Montoya, a 

student leader and captain of the men’s basketball team who was 

doing homework at Project SAFE that day. Montoya related that 

Doe told Palacios “ ‘[t]here were no bruises, I didn’t hit her or 

anything . . . so that’s not rape, that’s not sexual assault.’ ” Doe 

insisted that the accusations against him were ridiculous, unfair, 

and unbelievable. Doe asked, “[i]f she goes back to the room and 

entices me all night, how can you expect me to think nothing’s 

going to happen?” Doe declared that “[m]en are the victims 

because they are not expected to do anything at the end of the 

night.” 

After Doe left Project SAFE, Palacios called campus safety 

officers to report the incident. She called Roe to warn that Doe 

was upset by the stay-away letter. She also emailed the dean of 

students to report Doe’s conduct.

III. Roe’s complaint against Doe

In the days and weeks following the incident, Roe discussed 

it with her friends. Roe told three friends that Doe penetrated 

her vagina with his penis and that she kept telling him she did 

not want to have intercourse; she told him to stop and he kept 

trying to have sex with her. She told one friend that Doe was 

aggressive and manipulative. She related to another friend that 
6

she informed Doe that she was a virgin and did not want to have 

sex with him, and that Doe agreed that the two would watch 

movies and hang out. She also told that friend that Doe would 

not let her leave his room. Her friends indicated that Roe 

appeared upset about what had happened with Doe, and that Roe 

was initially uncertain whether what happened constituted 

sexual assault. One friend, who had received sexual assault 

training, told Roe that what she described was sexual assault and 

arranged a meeting between Roe and Palacios. 

Roe also told her Residential Advisor Tess LangsethDePaolis (Langseth-DePaolis), and Professor Shanna Lorenz 

(Lorenz) about the incident, using the word “rape” to describe 

what happened to her. Roe told Langseth-DePaolis that she was 

a virgin and did not want to have sex, but that Doe was “very 

pushy and kept pushing and kept kissing and kept touching” Roe 

until they had sex. Roe told Lorenz that she “tried to get out, but 

she was dragged back into the room by [Doe].” 

Two days before her meeting with Palacios, Roe 

experienced non-menstrual related vaginal bleeding and 

irritation and went to Occidental’s student wellness center to 

request pregnancy and STD tests, and a PAP smear. The staffer

who performed the latter two tests was unavailable. Roe was 

very upset that the vaginal bleeding meant her hymen had been 

broken. She did not tell the staff she was raped, but did indicate 

that she had sexual intercourse with a man for the first time and 

ask if her hymen had been broken.

At her scheduled meeting with Palacios, Roe related what 

happened, including that she was penetrated multiple times 

without consent. She did not identify Doe by name. 
7

Doe violated the stay-away letter. Roe began feeling that 

her encounters with Doe were not random and that he was 

“purposefully trying to find [her]” or “find ways to intimidate 

[her] and make [her] feel unsafe.” Roe was freaked out and 

reported to Palacios an incident one evening when Doe walked 

directly up to her and got “really close to her face.” He said 

something that she could not hear because she had earphones on. 

On December 13, 2013, the office of the dean of students 

emailed Doe that he may have engaged in behavior that violated 

the stay-away letter and reminded him not to violate its 

instructions.

In the new semester, Roe’s class schedule was such that 

she saw Doe up to eight times a day, which she found very 

upsetting. Also, Roe observed Doe’s behavior towards other 

female students and heard about encounters he had with other 

women. Roe told Palacios that she was afraid of Doe and worried 

he might do something to her friends. She felt that “it wasn’t 

healthy for him to be on the same campus with her.” 

Roe filed her formal sexual assault complaint on 

January 31, 2014. The report reflected that the two had met 

previously at a fraternity party where they kissed. He asked for 

sex but she declined, telling him she was a virgin. On the 

evening of September 28, 2013, Roe saw Doe at the GLO dance 

party. They kissed. He asked if she wanted to have sex. She 

said no, but agreed to make out with him in his room. Once 

there, Doe penetrated Roe with his penis. She told him “no and 

to stop. They continued making out and he penetrated her 

again.” After the third time, she screamed but he put his hand 

over her mouth. She tried to leave but he pulled her back and 

downplayed her desire to remain a virgin. He told her “she owed 
8

him something” and asked for anal sex. Believing she could not 

leave the dormitory without a key, she acquiesced to his request. 

Later, she put her clothes on and fell asleep in the room. The 

next morning, Doe penetrated her anus again. Doe then walked 

Roe back to her dormitory.

IV. Notice to Doe; the interim suspension; and the 

investigation

Occidental sent a notice to Doe on February 6, 2014 

advising him of Roe’s complaint alleging an incident of sexual 

misconduct on September 28 to 29, 2013, and that Occidental 

would conduct a formal resolution process which would include 

an investigation. The notice told Doe where he could find the 

policy and provided a contact to obtain more information on the 

investigation and the complaint. Due to the nature of the 

allegations, Occidental imposed an interim suspension on Doe, 

effective February 6, 2014, and pending resolution of the 

complaint.

Doe immediately engaged counsel and a private 

investigator who, in February 2014, took recorded statements of 

three of Doe’s friends.

Occidental engaged Public Interest Investigations, Inc. 

(PII) as the external investigator. PII interviewed Roe on 

February 13, 2014. Beginning on February 14, 2014, PII 

repeatedly attempted to interview Doe. They exchanged emails 

discussing Doe’s concerns about the investigation. Finally, PII 

interviewed Doe on March 20, 2014, and provided him access to 

his interview summary on April 4, 2014. Between February 13 

and April 2, 2014, PII interviewed 12 witnesses, plus Doe and 

Roe, and reviewed medical records, electronic logs, text messages, 
9

floor plans, and other evidence. PII also toured the campus 

grounds and Doe’s dormitory.

A. Roe’s account of the incident to PII

Roe told PII that the two met a few times before the 

incident. Once at a fraternity party, they danced and engaged in 

consensual kissing. She declined his invitation to go to his dorm 

room, stating that she was a virgin and did not want to have sex 

with him. Doe responded, “That’s ok. I respect that.”

Roe came to the GLO dance with a group of friends on the 

night of September 28, 2013. She ate a marijuana candy and 

drank two shots of liquor. Doe had consumed approximately six 

beers.1 The two danced and kissed. Doe invited Roe back to his 

room and she again told him that she was a virgin and would not 

have sex with him; “if that is what you want, you should find 

someone else.” Doe responded that he just wanted to make out, 

and “I won’t force you to do anything else.” Roe explained that 

when she first agreed to go to Doe’s room, she expected they 

would engage in oral sex but not sexual intercourse. 

Once in Doe’s room, the two engaged in mutual sexual 

conduct, including kissing, fondling, and oral sex. She then 

attempted to leave his room because he made comments that she 

found troubling, including that he was contemplating being “evil 

for the rest of his life.” When she tried to leave, Doe pulled her 

back on the bed “very forcefully,” placing both of his hands on her 

 

1 The adjudicator eventually found that although both 

parties admitted that they had consumed alcohol and Roe 

admitted that she consumed marijuana, neither party asserted 

that they were incapacitated and so the element of incapacity 

was not considered by the adjudicator. 
10

shoulders or her waist. Roe felt “trapped” and unable to leave, 

while Doe continued to “rant about feeling like an outsider.”

Doe apologized for his remarks and they began kissing 

again. She closed her eyes while Doe started touching her vagina 

with his hand. Then she felt something that was “harder than 

his hand inside [her].” Realizing it was his penis inside her 

vagina, Roe started “freaking out” and felt like she was going to 

throw up. She asked Doe what he was doing and told him, “[y]ou 

aren’t going to have sex with me.” Doe pulled his penis out of her 

vagina and said, “You can’t come in here and torture me like that. 

It’s not fair. Do you do this to all men?” Roe told Doe she wanted 

to leave. Doe apologized again and suggested that they just 

“pleasure each other.”

According to Roe, the two engaged in more mutual kissing 

and fondling, but he once again inserted his penis into her vagina 

without her consent. Roe asked him to stop and he did. Roe told 

him she did not want him to take her virginity. Doe asked her, 

“Why should your virginity even matter?” Roe told Doe she felt 

really uncomfortable. Doe promised he would not penetrate her 

vagina with his penis again. Roe felt she could not leave because 

she had already tried twice but was prevented by Doe. She 

stayed based on his promise. Between five and 20 minutes later, 

Doe again inserted his penis into her vagina. Roe screamed. Doe 

placed his hand over her mouth and said, “Don’t scream, my 

roommates will hear.” She told him to stop and he pulled his 

penis out of her vagina.

Doe began yelling at her, “You are torturing me” and that 

she had at least to agree to give him oral sex. Consenting, Roe 

did so briefly before Doe stopped her so he could go to the 

bathroom. While Doe was in the bathroom, Roe contemplated 
11

leaving but mistakenly thought she needed a key card to exit the 

building and did not think that Doe would let her out based on 

his earlier conduct when she had tried to leave. She felt “scared 

and fearful,” “unhappy and confused,” and that Doe was 

“manipulative.”

When Doe returned from the bathroom, he told Roe that it 

was “not fair, and she had to at least agree to have anal sex with 

him.” She told him she did not want to but Doe insisted that 

“[y]ou have to.” Roe agreed because she felt pressured to say yes. 

She was exhausted and wanted to sleep. She began yelling when 

Doe penetrated her anus. He stopped and complained that she 

did not let him “put it in all the way.” The two eventually went to 

sleep. The following morning, Doe again inserted his penis into 

Roe’s anus. She pushed him away. He stopped. Roe told Doe she 

wanted to leave. Doe walked Roe back to her dorm.

Langseth-DePaolis related to the investigator that Roe 

claimed to have “flashbacks and [was] thinking about [Doe].” Roe 

told Langseth-DePaolis that she was “really nervous and she felt 

like throwing up and [was unable to] breathe.” Lorenz told the 

investigator that Roe appeared “shocked” and did not want to 

discuss the details but asked for extensions on assignments. 

Since the incident, Lorenz reported, Roe struggled in class and 

was “in a fog” “more in shock, like a deer in traffic.”

B. Doe’s account of the incident to PII

Doe denied much of Roe’s account in his interview with PII. 

He reported that Roe did not say she was a virgin and that she 

did not want to have sex with him, although he already knew 

about her virginity. Doe stated he had no intention of having sex 

with Roe; he only planned to “fool[ ] around a little bit.” When 

questioned further, Doe stated he did not remember whether Roe 
12

talked about being a virgin or not wanting to have sex. He later 

stated that at some point, he brought up Roe’s virginity and 

recalled reassuring her that he would not pressure her to have 

sex. Doe denied having sexual intercourse that night. He 

claimed that Roe “random[ly]” suggested they try anal sex, 

without his prompting, and as a result the first anal penetration 

was consensual. Doe denied Roe attempted, or said she wanted, 

to leave his room at any point, nor did he try to prevent her from 

leaving.

Doe’s two roommates were home in their triangle dorm 

suite with their respective doors closed when Roe and Doe 

arrived. They did not see or hear Roe. One roommate confirmed 

to the investigator that Doe knew that Roe was a virgin. Doe told 

him that there was “a disagreement about what they would do 

[sexually] and how far they were going to go.” Doe told the 

roommate that he and Roe ended up talking most of the night. 

V. Procedural background

PII provided its final investigation report, along with 

summaries of the witness interviews and other evidence, to 

Occidental’s Title IX hearing coordinator. The hearing 

coordinator found “there [was] sufficient information upon which 

a determination of a potential violation of the . . . Policy [could] be 

made.” The hearing coordinator sent Doe and Roe a notice of the 

charges on April 25, 2014. The notice contained Roe’s allegation 

that Doe had vaginal intercourse with her three times and anal 

intercourse with her two times, all without her consent. Roe 

further alleged Doe used coercion to engage in these acts of nonconsensual sex and to prevent her from leaving his room. The 

notice informed Doe that he was being charged with violating the 
13

policy’s prohibition against sexual assault and non-consensual 

sexual contact.

On May 2, 2014, the hearing coordinator notified Doe of the 

May 12, 2014 hearing date. The notice identified the external 

adjudicator and provided Doe with electronic access to the 

password-protected website containing all of the investigation’s 

documents and evidence. Doe viewed the information on the 

website seven times between May 2, 2014 and May 10, 2014.

The hearing took place on May 12, 2014 and lasted five 

hours. Six witnesses testified, including the PII representative. 

In her May 14, 2014 written decision, the adjudicator found by a 

preponderance of the evidence that Doe vaginally and anally 

penetrated Roe without effective consent, thereby violating 

Occidental’s policy. Occidental permanently separated Doe from 

the college immediately.

Doe appealed the decision to Occidental’s associate dean of 

students. After his appeal was denied, Doe filed his petition for 

writ of mandate seeking to have Occidental set aside its decision. 

His petition alleged that Occidental abused its discretion by 

failing to proceed in the manner required by law because it 

denied him a fair hearing and its findings were unsupported by 

the evidence. In a comprehensive statement of decision, the trial 

court denied the petition. Doe filed his timely appeal from the 

ensuing judgment.

DISCUSSION

I. Standard of review

The remedy of administrative mandamus under Code of 

Civil Procedure section 1094.5 “ ‘ “applies to private organizations 

that provide for a formal evidentiary hearing.” ’ [Citation.] In 
14

cases that do not ‘ “involv[e] a fundamental vested right,” ’ we 

review the [adjudicator’s] decision rather than the trial court’s 

decision, ‘ “applying the same standard of review applicable in 

the trial court.” ’ [Citation.] This standard has been applied to 

college disciplinary decisions involving sexual misconduct.” (Doe 

v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1065

(CMC).)

“When reviewing the denial of a petition for writ of 

administrative mandate, we determine ‘whether [Occidental] has 

proceeded without, or in excess of, jurisdiction; whether there 

was a fair trial; and whether there was any prejudicial abuse of 

discretion.’ [Citations.] In this context, ‘fair trial’ refers to a fair 

administrative hearing. [Citation.] We review the fairness of the 

proceedings de novo, and the substantive decision for substantial 

evidence.” (CMC, supra, 25 Cal.App.5th at p. 1065.)

II. Fair process

“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 (USC).)

The cases do not plainly define the components or 

standards of a fair hearing in student disciplinary proceedings 

involving allegations of sexual misconduct. (USC, supra, 246 

Cal.App.4th at p. 245; Doe v. Regents of University of California

(2016) 5 Cal.App.5th 1055, 1078 (Regents).) A fair hearing “need 

not include all the safeguards and formalities of a criminal trial.” 

(Regents, at p. 1078.) “ ‘[T]he pure adversary model is not 

entitled to constitutionally enshrined exclusivity as the means for 

resolving disputes in “[t]he incredible variety of administrative 
15

mechanisms [utilized] in this country.” ’ ” (USC, at p. 244.) 

“[C]ourts have recognized competing concerns. On the one hand, 

an accused student has an interest ‘ “to avoid unfair or mistaken 

exclusion from the educational process, with all of its unfortunate 

consequences. . . . The risk of error is not . . . trivial, and it 

should be guarded against if that may be done without 

prohibitive cost or interference with the educational process.” ’ ” 

(CMC, supra, 25 Cal.App.5th at p. 1066.) “On the other hand, 

‘ “[a] formalized hearing process would divert both resources and 

attention from a university’s main calling, that is education.” ’ . . . 

[Citation.] Disciplinary proceedings involving sexual misconduct 

must also account for the well-being of the alleged victim, who 

often ‘live[s], work[s], and stud[ies] on a shared college campus’ 

with the alleged perpetrator.” (Ibid.; USC, at p. 245.)

While no particular form of student disciplinary hearing is 

required in California, “ ‘[a]t the very minimum, . . . students 

facing suspension . . . must be given some kind of notice and 

afforded some kind of hearing.’ [Citation.] The hearing need not 

be formal, but ‘in being given an opportunity to explain his 

version of the facts at this discussion, the student [must] first be 

told what he is accused of doing and what the basis of the 

accusation is.’ ” (USC, supra, 246 Cal.App.4th at p. 240.) 

Universities are bound by their own policies and procedures. 

(Regents, supra, 5 Cal.App.5th at p. 1078.) And, “ ‘to comport 

with due process,’ the university’s procedures must ‘ “be tailored, 

in light of the decision to be made, to ‘the capacities and 

circumstances of those who are to be heard,’ [citation] . . . to 

insure that they are given a meaningful opportunity to present 

their case.” ’ ” (Ibid.) 
16

A. No violation of the policy’s notice requirements 

Doe contends that Occidental violated its policy by failing 

to provide him timely notice. He argues he “did not receive notice 

of Roe’s complaint until after [Occidental] completed its 

investigation, nearly three months after Roe filed her complaint.” 

He also argues he did not receive a “summary” of the allegations 

against him before he was interviewed. To be clear, Doe does not 

challenge the legal sufficiency of the policy, and he does not 

contend that he never received notice of the specific allegations 

against him, or that he was precluded from presenting his case at 

the hearing. Rather, he argues that he did not receive notice 

before he was interviewed by PII in March 2014. 

Doe is wrong. Occidental gave Doe notice on February 6, 

2014—a week after Roe filed her complaint. In compliance with 

appendix A, section (V)(D)(1) of the policy, that notice advised 

Doe that Roe was “alleging an incident of sexual misconduct,” a 

term used in the policy, “on or about September 28-29, 2013.” 

(Italics added.) The notice contained links to the policy and the 

student code of conduct, and provided contact information if Doe 

had questions about the complaint. Thus, Doe received notice 

shortly after Roe filed her complaint, prior to his interview, and 

before PII completed its report. Even earlier than that, 

Occidental gave Doe notice that Roe had made a report on 

October 28, 2013, when it sent him the stay-away letter, and on 

December 13, 2013, when it emailed Doe a reminder of the stayaway requirement. Doe clearly knew about the allegations 

because he denied them when he yelled at Palacios in October 

2013. Furthermore, the requirement is that notice simply 

apprise Doe “ ‘of the pendency of the action.’ ” (USC, supra, 246 

Cal.App.4th at p. 240, italics added.) Logically, Occidental was 
17

not obligated to provide Doe with formal notice before Roe even 

filed the complaint against him that began the action. 

Doe argues that Occidental violated the policy by failing to 

“articulate the specific policy sections allegedly violated until 

after PII’s investigation ended.” Review of the record reveals that 

Occidental proceeded exactly as required by appendix A, 

section (IV)(A), by sending Doe written notification “[a]t the 

conclusion of [PII’s] investigation” that contained a “summary of 

the conduct at issue and the specific provision of the policy 

violation(s) that are alleged to have [occurred],” and listed the 

alleged policy violations as “Sexual Assault” and “NonConsensual Sexual Contact,” along with their definitions. USC, 

supra, 246 Cal.App.4th 221, cited by Doe is inapposite. In USC, 

the administrative appeal absolved the student of the charges 

alleged against him, but disciplined him for conduct of which he 

had never received notice. (Id. at pp. 234–236.) In contrast, 

Occidental did not engage in any “bait and switch.” Occidental 

informed Doe of the sexual assault and non-consensual sexual 

contact charges against him. Doe had a five hour hearing during 

which he addressed the same allegations that were contained in 

the notice and in the investigative report. The adjudicator found 

that he had committed sexual misconduct as stated in the notice 

and nothing different. 

Doe next contends that Occidental violated its own policy 

when it suspended him from campus in early February 2014, 

before the investigation had begun, and “without [providing him] 

any notice of the charges.” Again, Doe misstates the facts. 

Occidental in fact did comply with the policy. Pursuant to 

section VIII, subdivisions (A) and (B), Occidental sent Doe a 

campus stay-away letter in October 2013. As Doe appeared to 
18

violate that letter, Occidental sent him a reminder email in 

December 2013. Then, following section VIII, subdivision (C), 

which gives it authority in the face of an immediate threat of 

harm to the safety or well-being of an individual, Occidental 

placed Doe on interim suspension pending resolution of the 

report. The record indicates not only that Doe violated the stayaway letter, but also that Roe was concerned about his conduct 

with other women and was afraid he would threaten her friends. 

The notice also informed Doe that Roe had filed a complaint with 

the Title IX office alleging an incident of sexual misconduct on 

September 28 through 29, 2013; that Occidental was undertaking 

an investigation; and that it had the discretion to place students 

on interim suspension immediately and without prior notice. 

B. No procedural unfairness

1. No prejudice by exceeding the 60-day guideline

for hearings

Doe contends that Occidental violated the policy’s provision 

that “required it to resolve complaints within 60 days.” What the 

policy actually states in section IX, subdivision (G), is that “[t]he 

College seeks to resolve all reports within 60 days of the initial 

report. All time frames expressed in this policy are meant to be 

guidelines rather than rigid requirements. Extenuating 

circumstances may arise that require the extension of time 

frames, including extension beyond 60 days.” (Italics added.) 

The policy provides an incomplete list of extenuating 

circumstances. Although the record does not reveal an 

explanation for why the 60-day guideline was exceeded here, Doe 

fails to indicate how he was prejudiced by any delay. He argues 

that as the result of the delay, the hearing was held the day after 

summer recess began, which prevented witnesses from attending 
19

the hearing. However, six witnesses, including Doe’s two 

roommates and his friend, testified either in person or by 

telephone. Otherwise, Doe has not identified what witness the 

scheduling prevented him from calling. 

2. Doe had access to all of the evidence against

him

Doe contends Occidental violated its policy by failing to 

provide him any evidence during the investigation, only allowing 

him to view the investigative report and exhibits 10 days before 

the hearing. The policy does not provide for distribution of 

evidence during the investigation. Apart from the fact that Doe’s 

receipt 10 days before the hearing exceeded the minimum of five 

days that the policy does provide for (§ V, subd. (D)(5)), Doe never 

claimed at the administrative level that the 10 days was 

insufficient, and he never requested a continuance. More 

important, Doe does not claim he was unprepared for the 

hearing. Nor could he, because he retained counsel who 

conducted its own investigation months before the hearing, 

giving him ample time to prepare.

Next, Doe contends that the investigative report contained 

only the initials of the witnesses rather than their full names, 

and cites to a redacted version of the report submitted to the trial 

court in connection with his petition for writ of mandate. There, 

he alleged that “PII interviewed several additional student 

witnesses whose names were redacted from the investigation 

report and undisclosed to [Doe].”

Our review of the trial court and administrative record 

reveals otherwise. According to the declaration of Ruth Jones, 

Title IX coordinator, under penalty of perjury and attached to 

Occidental’s sur reply to the writ petition, Occidental gave Doe 
20

password-protected, electronic access to all of the hearing 

documents, including the investigative report and supporting 

witness interview summaries, with the full names of all 

witnesses. Doe viewed the unredacted version in the 

administrative record seven times between May 2, and May 10, 

2014. Jones also declared, “At no point during the administrative 

process did . . . Doe, his advisor, or his retained counsel advise my 

office that . . . Doe was unaware of the identities of the 

witnesses.” Doe did not include, as one of his numerous 

objections to the process at the administrative hearing, the 

objection that witnesses were only identified by initials. Nor did 

Doe provide the trial court with a sworn counter-declaration to 

that of Jones. Therefore, even if the investigative report he 

received only contained witnesses’ initials, Doe failed to 

demonstrate prejudice. Doe knew the names of all of the 

witnesses.

3. The contention of adjudicator bias is forfeited

Doe dedicates much of his appeal to his contention that the 

external adjudicator was “blatantly biased” in favor of Roe. 

(Capitalization and boldface omitted.)

“A party seeking to show bias or prejudice on the part of an 

administrative decision maker is required to prove the same ‘with 

concrete facts: “ ‘[b]ias and prejudice are never implied and must 

be established by clear averments.’ ” ’ ” (Nasha v. City of Los 

Angeles (2004) 125 Cal.App.4th 470, 483.) But, “[w]hen a litigant 

suspects bias on the part of a member of an administrative 

hearing body, the issue must be raised in the first instance at the 

hearing.” (Attard v. Board of Supervisors of Contra Costa County

(2017) 14 Cal.App.5th 1066, 1083.)
21

Here, Doe did not raise the issue of bias at the 

administrative level or in the trial court. Doe’s first mention of 

adjudicator bias is in his brief on appeal, in an apparent effort to 

have us re-assess the credibility of the witnesses. We will not 

consider the issue of bias raised for the first time on appeal; Doe 

has forfeited the contention. (See Horn v. Atchison, T. & S. F. Ry. 

Co. (1964) 61 Cal.2d 602, 610.)

III. No abuse of discretion in finding Doe violated the policy by 

having nonconsensual sexual contact with Roe

Initially, Doe contends that we should independently 

review the administrative decision because, he argues, it affects a 

vested fundamental right. But, California cases reviewing 

colleges’ disciplinary decisions concerning student sexual 

misconduct have repeatedly applied the substantial evidence 

standard because the decisions there “do not ‘ “involv[e] a 

fundamental vested right.” ’ ” (CMC, supra, 25 Cal.App.5th at 

p. 1065; USC, supra, 246 Cal.App.4th at pp. 239 & 238; Regents, 

supra, 5 Cal.App.5th at p. 1073.) This makes sense where the 

United States Supreme Court has recognized that among the 

“ ‘ “ ‘four essential freedoms’ of a university [is the freedom] to 

determine for itself . . . who may be admitted to study.” ’ ” 

(Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 

1726.) “ ‘ “Although a university must treat students fairly” ’ ” 

(CMC, at p. 1066), its “main calling” is education and so “ ‘ “it is 

not required to convert its classrooms into courtrooms.” ’ ” (Ibid.) 

These California authorities, to which we are clearly bound, 

distinguishes this case from the out-of-state cases cited by Doe. 

(Furey v. Temple Univ. (E.D.Pa. 2012) 884 F.Supp.2d 223 [public 
22

university]; Doe v. Rector & Visitors of George Mason University

(E.D.Va. 2016) 149 F.Supp.3d 602 [public university].)2

Our substantial evidence standard is extremely deferential. 

(Regents, supra, 5 Cal.App.5th at p. 1073.) “ ‘[W]e do 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.” ’ [Citation.] ‘ “[The administrative agency’s] 

findings come before us ‘with a strong presumption as to their 

correctness and regularity.’ [Citation.] We do not substitute our 

own judgment if the [agency’s] decision ‘ “ ‘is one which could 

have been made by reasonable people. . . .’ [Citation.]” ’ ” ’ 

[Citation.] ‘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.’ [Citations.] 

[¶] We are required to accept all evidence which supports the 

successful party, disregard the contrary evidence, and draw all 

reasonable inferences to uphold the verdict. [Citation.] 

Credibility is an issue of fact for the finder of fact to resolve 

[citation], and the testimony of a single witness, even that of a 

 

2 California courts are not bound by out-of-state cases. 

(Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447, fn. 2) 

Doe also cites Goss v. Lopez (1975) 419 U.S. 565 for this 

proposition. The Supreme Court in Goss recognized that where 

state law has created a student’s entitlement to a public 

education, that entitlement constitutes a property interest that is 

constitutionally protected. (Id. at pp. 573–574, 576.) But Goss

involved public secondary-school pupils, not private-college 

students. (Ryan v. California Interscholastic Federation-San 

Diego Section (2001) 94 Cal.App.4th 1048, 1062.)
23

party, is sufficient to provide substantial evidence to support a 

finding of fact.” (Id. at pp. 1073–1074.)3

Viewing the entire record here, it supports the adjudicator’s 

conclusion that Doe committed sexual assault and nonconsensual sexual contact on September 28 and 29, 2013. The 

policy defines sexual assault as “[h]aving or 

attempting . . . sexual intercourse with another individual: 

[¶] By force or threat of force; [or] [¶] Without effective consent.” 

Non-consensual sexual contact is defined in the policy as 

“[h]aving sexual contact with another individual: [¶] By force or 

threat of force; [or] [¶] without effective consent.” 

Roe consistently stated in her interviews and to LangsethDePaolis, Lorenz, Palacios, and her three friends that she told 

Doe she was a virgin and did not want to have sex with him. 

Nonetheless, Doe penetrated Roe’s vagina numerous times with 

his penis. Following the incident, Roe had a pregnancy test, 

corroborating the fact that vaginal penetration occurred as she 

alleged. Furthermore, Roe conveyed that she submitted to anal 

sex because Doe attempted to restrict her from leaving his room 

and he was verbally and physically aggressive toward her. Thus, 

the anal sex occurred by force or threat of force, and without 

effective consent. The second episode of non-consensual anal sex 

occurred the next morning when Roe awoke to find Doe’s penis in 

her anus. Roe’s account is sufficient to provide substantial 

 

3 We note, even under the independent judgment standard, 

“a trial court must afford a strong presumption of correctness 

concerning the administrative findings, and the party challenging 

the administrative decision bears the burden of convincing the 

court that the administrative findings are contrary to the weight 

of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 

817.) 
24

evidence to support a factual finding, and it was substantiated by 

the other witnesses. (Regents, supra, 5 Cal.App.5th at p. 1074.) 

To challenge the adjudicator’s findings, Doe argues “the 

facts simply do not support a finding . . . [he] engaged in 

nonconsensual sexual activity” because he consistently denied 

Roe’s account, and because Roe’s testimony “downright 

lack[ed] . . . credibility.” He lists evidence he claims the 

adjudicator “ignored,” and other facts that support his version of 

events to argue “it is plausible that Roe was mistaken about any 

penetration occurring.” Doe’s argument—an attempt to reweigh 

the evidence—is unavailing.

Recognizing that the parties’ testimony about whether Doe 

penetrated Roe’s vagina or anus conflicted, and that the critical 

issue was to determine whose version was more reliable, the 

adjudicator listed the reasons she found Roe’s version to be more 

persuasive: (1) Doe’s statements to others were consistent with 

statements Roe attributed to him; (2) Doe made inconsistent 

statements; (3) Roe’s reporting was consistent; (4) information 

provided by Roe was corroborated by Doe; (5) Roe’s conduct was 

consistent with vaginal penetration; (6) Doe’s testimony that the 

absence of bruising requires a finding that no sexual assault 

occurred; and (7) the inability of Doe’s witnesses to competently 

testify to the events that occurred in Doe’s room. Thus, the result 

here was predicated on credibility findings. Credibility is an 

issue of fact for the adjudicator to resolve. The adjudicator gave 

reasons for her conclusion that Roe’s account was more reliable. 

We may not reassess that finding. (Regents, supra, 5 Cal.App.5th 

at pp. 1073–1074.) Doe has demonstrated no error.
25

DISPOSITION

The judgment is affirmed. Occidental College is awarded 

its costs on appeal.

DHANIDINA, J.

We concur:

EDMON, P. J.

MURILLO, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
Filed 7/24/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JOHN DOE,

Plaintiff and Appellant,

v.

OCCIDENTAL COLLEGE,

Defendant and Respondent.

 B282292

 (Los Angeles County

 Super. Ct. No. BS150532)

 CERTIFICATION AND

 ORDER FOR PUBLICATION

The opinion in the above-entitled matter filed July 2, 2019, 

was not certified for publication in the Official Reports. For good 

cause it now appears that the opinion should be published in the 

Official Reports and it is so ordered.

DHANIDINA, J. EDMON, P. J.