Filed 8/27/19 Certified for Publication 9/23/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JOHN DOE,

Plaintiff and Appellant,

v.

OCCIDENTAL COLLEGE,

Defendant and Respondent.

 B284707

 (Los Angeles County

 Super. Ct. No. BS147275)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mary H. Strobel, Judge. Affirmed.

Werksman Jackson Hathaway & Quinn, Hathaway Parker, 

Mark M. Hathaway and Jenna E. Parker for Plaintiff and 

Appellant.

Cynthia P. Garrett for Foundation for Individual Rights in 

Education as Amicus Curiae on behalf of Plaintiff and Appellant.

Epstein Becker & Green, Jonathan M. Brenner and Susan 

Graham for Defendant and Respondent.
2

INTRODUCTION

Occidental College expelled John Doe for violating its 

sexual misconduct policy after he sexually assaulted Jane Doe. 

An external adjudicator found Jane was incapacitated within the 

meaning of the policy because she was intoxicated and unable to 

make “an informed and rational decision to engage in sexual 

activity.” The adjudicator found John was also intoxicated; in 

fact, so intoxicated he did not know Jane was incapacitated. 

Under Occidental’s policy, however, John’s intoxication did not 

diminish his responsibility to obtain Jane’s consent, and John 

violated the policy because he should have known Jane was 

incapacitated. The adjudicator concluded a sober person in 

John’s position should have known Jane was too drunk to 

consent.1

After unsuccessfully appealing within the college, John 

filed a petition for writ of administrative mandate in the trial 

court. The trial court denied the petition and entered judgment 

in favor of Occidental. John argues on appeal that he did not 

have a fair disciplinary hearing and that the evidence did not 

support the adjudicator’s findings. We affirm.

 

1 We refer to Occidental’s sexual misconduct policy in effect 

when Jane accused John of violating it. As of January 22, 2019

Occidental revised its policy and issued a new interim sexual 

misconduct policy. (See https://www.oxy.edu/sexual-respect-titleix> [as of Aug. 9, 2019], archived at < https://perma.cc/JDZ7-

ETZP>.)
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Occidental’s Sexual Misconduct Policy 

Two weeks before their sexual encounter, John and Jane 

both attended freshman orientation sessions on sexual 

misconduct and Occidental’s sexual misconduct policy. 

Occidental’s policy prohibits sexual assault, which it defines as 

“[h]aving or attempting to have sexual intercourse with another 

individual . . . [b]y force or threat of force,” “[w]ithout effective 

consent,” or “[w]here [the other] individual is incapacitated.” The 

policy also prohibits non-consensual sexual contact, which it 

defines as “[h]aving sexual contact with another individual . . . 

[b]y force or threat of force, “[w]ithout effective consent,” or 

“[w]here that individual is incapacitated.”

The policy defines “incapacitation” as “a state where an 

individual cannot make an informed and rational decision to 

engage in sexual activity because s/he lacks conscious knowledge 

of the nature of the act (e.g., to understand the who, what, when, 

where, why or how of the sexual interaction) and/or is physically 

helpless. An individual is incapacitated, and therefore unable to 

give consent, if s/he is asleep, unconscious, or otherwise unaware 

that sexual activity is occurring.” 

The policy discusses the relationship between alcohol use 

and incapacitation. The language we italicize was central to the 

adjudicator’s decision here: “Incapacitation may result from the 

use of alcohol and/or drugs. Consumption of alcohol or other 

drugs alone is insufficient to establish incapacitation. The 

impact of alcohol and drugs varies from person to person, and 

evaluating incapacitation requires an assessment of how the 

consumption of alcohol and/or drugs impacts an individual’s: [¶] 
4

decision-making ability; [¶] awareness of consequences; [¶] 

ability to make informed judgments; or [¶] capacity to appreciate 

the nature and the quality of the act. [¶] Evaluating

incapacitation also requires an assessment of whether a 

Respondent knew or should have known, that the Complainant 

was incapacitated. [¶] . . . In general, sexual contact while 

under the influence of alcohol or other drugs poses a risk to all 

parties. Alcohol and drugs impair a person’s decision-making 

capacity, awareness of the consequences, and ability to make 

informed judgments. It is especially important, therefore, that 

anyone engaging in sexual activity be aware of the other person’s 

level of intoxication. If there is any doubt as to the level or extent 

of the other individual’s intoxication or impairment, the prudent 

course of action is to forgo or cease any sexual contact or activity. 

[¶] Being intoxicated or impaired by drugs or alcohol . . . does not 

diminish one’s responsibility to obtain consent.” 

B. Saturday Night and Sunday Morning, September 7-8, 

2013 

Jane and John knew each other, but not well. They lived 

on different floors of the same dormitory and had one class 

together. John was 18, and Jane was one month shy of 18. 

Multiple witnesses told Occidental’s investigators or testified at 

the disciplinary hearing that, during the hours before John and 

Jane had sexual intercourse, Jane drank large quantities of 

vodka and became extremely intoxicated. The investigation 

report, witness interview summaries, and testimony at the 

hearing described the following events. 
5

1. 9:15 p.m.-11:30 p.m.: Jane Gets Drunk

Jane began drinking alcohol in her dormmate Liam’s room 

at approximately 9:15 Saturday evening. Jane drank orange 

juice mixed with vodka and several shots of straight vodka. 

Jane’s friend Angela said Jane was “drinking heavily.” Other 

witnesses described Jane as “a little bit drunk, but still in 

control,” and “buzzed.” Jane described herself as “tipsy.” 

At 9:45 p.m. Jane and others decided to go to a fraternity 

party. Jane went to her room to change clothes. Jane’s 

roommate Genevieve recalled Jane was drinking orange juice 

mixed with alcohol, but was “pretty lucid” and “talking and 

walking normally.” 

After leaving the dormitory, Jane became “more and more 

drunk.” She could not walk straight. She stumbled and scraped 

her knee but could not feel it. She testified, “[T]hat’s how drunk I 

was.” Angela testified, “[I]t seemed like [Jane] became more . . . 

out of touch with . . . what was going on with her . . . .” Other 

witnesses observed Jane “could not walk a straight line and . . . 

was ‘getting loud.’” 

When Genevieve encountered Jane at 11:30 p.m., Jane was 

“visibly more intoxicated” than she had been earlier in the 

evening. She was stumbling and spoke in a “high-pitched” voice. 

Genevieve believed Jane’s “decision-making capacity” was “hazy.” 

She testified: “I wouldn’t trust Jane to make sound . . . decisions 

that she would make while sober when I saw her then,” and even 

“[m]ore so later [that evening].” 

Jane decided to return to the dormitory. She told her 

friends, “I can’t walk anymore. I’m just going to go back to [the 

dormitory].” According to Chloe, who met Jane at orientation, 
6

Jane had obviously been drinking and “was not able to walk very 

well.” Angela told Jamison, another friend of Jane, they “needed 

‘to take care of Jane.’” Angela later told investigators: “During 

freshmen orientation . . . [we] were told [we] were supposed to 

watch out for . . . friends when they were partying. I know it 

sounds corny . . . but I was trying to be a good person and be 

there for Jane as much as I could.” 

2. 7:00 p.m.-11:00 p.m.: John Gets Drunk

Liam saw “a lot of alcohol,” including vodka, rum, and beer 

in John’s room after 7:00 p.m. John was “‘exuberant,’ as if he had 

been drinking ‘a good amount.’” He had a bottle of alcohol in his 

hand and was dancing around the room. Liam said John was 

“not sloppy but a shot or two past tipsy.” Another resident of the 

dormitory, Aidan, also stopped by John’s room at 7:00 p.m. 

John’s friends told Aidan that John was “really drunk.” Aidan 

described John as “[k]ind of clumsy” and having “slow speech.” 

At 11:00 p.m. John’s roommate, Gavin, was getting ready to 

leave when John walked into the room. John was stumbling, 

slurring his words, and speaking in a loud voice. After observing 

John for an hour, Gavin “decided not to go out, so that he could 

‘keep an eye’ on John.” Aidan, who was also in John’s room at the 

time, described John’s “level of intoxication” as “a ‘shit show.’” 

John “was slurring his words [and] stumbl[ing] . . . .” Aidan 

estimated “that on a 0 to 10 scale, with 10 being inebriated to the 

point of not being able to function, John was ‘maybe a 7.’” 

3. 11:30 p.m.: Jane Goes to John’s Room

Jane returned to her room on the third floor of the 

dormitory at 11:30 p.m., but did not stay there. She was “bored,” 
7

“wired with energy,” and “drunk.” She went to the second floor 

“because there were usually people there.” John’s roommate 

Gavin saw Jane leaning against the hallway wall and heard her 

slurring her words. Jane followed Gavin to John’s room, where 

she embraced John and started dancing with him. It seemed 

“kind of intense,” so Gavin left. 

Angela and Jamison lost track of Jane and were worried. 

Angela called Jane, who said she was in John’s room. Angela and 

Jamison found Jane and John dancing and kissing and drinking 

vodka from a bottle. Angela estimated Jane drank three or four 

more shots. Jane was stumbling and leaning on things to 

support herself. Later, Jane and John embraced on John’s bed 

and were “getting really physical.” Angela was concerned that 

Jane “was not fully aware of what she was doing” and that Jane 

“did not seem to know where she was or what was going to 

happen next.” Angela “wasn’t sure how [Jane] would feel about” 

kissing John. Angela told Jane she should stop drinking and 

tried repeatedly to take away the vodka bottle. Angela believed 

John heard her: “Yeah. I’m sure he could have . . . heard [me tell 

Jane to stop drinking].” John appeared “very intoxicated” and 

“really drunk.” John told Jamison he had been drinking since 

1:00 p.m. 

At midnight, Angela and Jamison took Jane to her room. 

By then, Jane was “super drunk” and “incoherent.” Angela put 

Jane in bed, closed the door, and left. Jamison waited outside 

Jane’s room briefly before he also left. 
8

4. 12:20 a.m. -12:45 a.m.: Jane and John 

Exchange Text Messages 

At 12:20 a.m. Jane sent a text message to her best friend 

from home saying, “I’m wasted.” Between 12:31 and 12:45 a.m., 

Jane and John exchanged text messages, including these: 

John: “The second that you’re away from [Angela and 

Jamison] come back.”

Jane: “Okay.”

John: “Get the fuck back here. Get the fuck back here.”

Jane: “They’re still with me . . . .”

John: “Make them leave. Tell them yo[u] want to 

sleep. . . . Just get back here.”

Jane: “Okay do you have a condom.”

John: “Yes.”

Jane: “Good give me two minutes.”

John: “Come here.”

Jane: “Coming.”

John: “Good girl. Knock when you’re here.”

Jane: “[Jamison is] out ride [sic] my door.” 

John: “What.

Jane: “[Jamison] is outside my door.”

John: “Wtf.”

Jane: “Right.”

John: “Get him to leave.”

Jane: “Working on [i]t.”

. . . .

John: “Leave. Say you’re going to the bathroom.”

Jane: “Okay.” 
9

Before leaving her room, Jane texted her friend from home 

again at 12:40 a.m. and said, “The worlds moving. 

I’mgoingtohave sex now.” 

5. 12:45 a.m.-2:00 a.m.: Jane Goes to John’s Room 

Again

Gavin saw Jane on the second floor stumbling in the 

hallway and vomiting in a trash can. He helped her into a 

bathroom where she vomited again. When Jane said she felt 

better, Gavin left. Jane went to John’s room and told him she 

had just vomited. (John testified he had no memory of Jane 

vomiting.) 

At 2:00 a.m. Gavin told Aidan that Jane had been drinking, 

had thrown up, and was alone with John in John’s room. Aidan 

was concerned. He testified: “I was worried . . . if she was 

intoxicated, that she shouldn’t be . . . alone in a room with 

someone else [because] she’s not in the right mind to, like, make 

decisions like that[.]” Aidan also knew John had been “very 

drunk earlier.” Aidan expressed his concern to Gavin, who gave 

him a key to the room. Aidan found John sitting on the bed 

naked with Jane under the covers. John said, “Yo, get the fuck 

out.” Minutes later, John came out of the room and walked “in a 

normal gait” toward the bathroom. Aidan knocked on the door 

and asked three times if Jane was okay. Jane said, “Yeah, I’m 

fine.” 

Gavin also walked in on John and Jane. It was “obvious” to 

him that they were “having sex.” Gavin believed Jane was 

conscious because he saw her legs moving. He quickly closed the 

door and left. He later told investigators he “had attended sexual 

assault prevention training during orientation, and had been told 
10

what to do if he witnessed a sexual assault. ‘This didn’t look like 

one to me[.]’” After Gavin entered the room, John told Jane he 

thought she should leave, and she did. 

6. 2:00 a.m.: Jane Returns to Her Room but 

Leaves Again

Angela found Jane in the hallway after 2:00 a.m. “a lot less

steady on her feet than she had been earlier” and slurring her 

words. Genevieve was there when Angela “ushered” Jane into 

their room. According to Genevieve, Jane was “very 

incapacitated,” “very obviously drunk,” even “past drunk.” Jane’s 

words were “excessive[ly] slurr[ed]” and she was incoherent. 

Jane tried to undress but could not undo her buttons. When 

Genevieve gave Jane water, “it dribbled out of her mouth.” 

Genevieve “check[ed] [Jane] for the signs of alcohol poisoning.” 

Genevieve left briefly to take a shower, and Jane disappeared. 

Genevieve found Jane in the lobby of the dormitory next 

door. Jane was “wearing her pajamas, ‘sitting on a couch on 

some guy’s lap.’” Jamison, who was also present, said Jane was 

“extremely drunk,” even more so than when they were together in 

John’s room. Jamison told the investigators, “I didn’t know it 

was possible to be more drunk than she was [earlier].” Jane 

could not walk without reaching out to balance herself. When 

Genevieve tried to help Jane up, Jane “buckled under her own 

weight.” Genevieve needed help to get Jane back to their room. 

She testified, “I was pretty sure that if we weren’t supporting her 

and keeping her upright, she would not be able to stay upright.” 

Maddie, whose room was next door to Jane’s room, saw 

Genevieve and Jane in the hallway. Jane was “pretty 
11

intoxicated” and was “slurring her words and stumbling.” 

Maddie helped Genevieve get Jane into bed.

7. Later Sunday Morning: Jane Learns She Had 

Sex with John

Angela woke at 10:00 a.m. to a text message. Jane told 

Angela “I think I had sex with John last night.” Jane had seen 

her text conversation with John but did not remember sending or 

receiving the messages. Jane subsequently asked Gavin what 

had happened. Gavin told her he had seen her having sex with 

John. Jane told Aidan “she did not remember much of anything,” 

was “not sure what exactly had happened,” and was “trying to 

piece together what had happened.” Aidan told Jane, “Well, we 

think that . . . you and John might have had sex.” And Jane said, 

“Yeah. I was worried that that might have been what happened.” 

Genevieve testified Jane told her “she couldn’t believe that it had 

happened. She didn’t remember it. She didn’t know if there was 

protection used or not.” 

C. Occidental Investigates and Conducts a Hearing

1. The Investigation 

Jane submitted a complaint against John for sexual 

misconduct. When Occidental receives a sexual misconduct 

complaint, its “Title IX team”2 conducts an initial assessment “to 

 

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

§ 1681 et seq.) is a federal civil rights law that prohibits 

discrimination based on gender in education programs or 

activities that receive federal funding. (See 34 C.F.R. § 106.1 et 
12

provide an integrated and coordinated response.” Following the 

assessment, the college decides whether to resolve the matter 

informally or refer it for investigation. When the college decides 

to investigate, it designates one or more trained employees or 

external investigators to conduct a “thorough, impartial and fair” 

investigation that is “appropriate in light of the circumstances of 

the case” and “respectful of individual privacy concerns.” The 

investigators “are not charged with reaching a determination as 

to responsibility.” During the investigation, the complainant and 

respondent have an “equal opportunity to be heard, to submit 

evidence, and to identify witnesses who may have relevant 

information.” When the investigation is complete, the 

investigators prepare and submit a written report. The college 

notifies the parties the investigation is complete and provides 

them with information about the next step. 

Occidental appointed independent investigators to 

investigate Jane’s complaint. The investigators interviewed Jane 

and nine other witnesses. Jane told the investigators “there 

[was] a ‘big hole’ in her memory of the evening.” She 

remembered drinking vodka from a bottle and dancing with 

John. She said the vodka did not burn her throat “because she 

was already so intoxicated.” She also remembered feeling hot 

and taking off her shirt. She put her shirt back on after Angela 

“flip[ped] out.” According to Jane, John “pushed her onto the bed, 

and they ‘ma[d]e out for a while.’” John told Jane “to get rid of 

[Angela] and [Jamison].” He told her to let them take her up to 

her room and then come back to his room. John asked for Jane’s 

 

seq.) Occidental’s Title IX coordinator “oversees the College’s 

overall compliance with Title IX.” 
13

cell phone number so he could text her to come back to his room 

and he could “fuck” her. (John’s subsequent testimony at the 

disciplinary hearing was consistent to the extent he remembered 

talking to Jane about “having her leave with her friends so she 

could come back down so [they] could have sex.”) 

Jane said she remembered that, after returning to John’s 

room, she asked him if he had a condom. She remembered 

“performing oral sex on him,” but did not remember “having 

sexual intercourse.” Jane also remembered that John briefly left 

the room and that she heard a knock at the door and voices 

asking if she was okay. She remembered John telling her his 

roommate had come into the room. 

On his attorney’s advice, John declined to allow the 

investigators to interview him. The investigators issued a 

written report with a summary of each witness interview. 

Consistent with Occidental’s policy, the investigators did not 

“reach[ ] a determination as to responsibility.” 

2. The Threshold Determination

After Occidental receives the investigation report, it 

designates a hearing coordinator who, in consultation with the 

Title IX team, reviews the report and makes “a threshold 

determination as to whether there is sufficient information upon 

which an adjudicator could find a violation of this policy. This 

threshold determination does not involve making a determination 

of responsibility, nor does it involve a credibility assessment. If 

the threshold has been established, the Hearing Coordinator will 

issue a Notification Letter to the [parties] and refer the report for 

Pre-Hearing Procedures.” The notification letter “provides each 

party with a brief summary of the conduct at issue and the 
14

specific provision of the [alleged] policy violation(s) . . . .” The 

parties may consult attorneys, but the attorneys may not 

participate in the proceedings. The parties, however, may have 

an advisor assist them, and they have the right to review 

investigative documents and call witnesses. 

Occidental appointed a hearing coordinator who made a 

threshold determination there was sufficient evidence to support 

a finding John violated the college’s sexual misconduct policy. 

The hearing coordinator notified Jane and John in writing that 

“[g]iven the nature and severity of the allegations” there would be 

a formal hearing. 

3. The Disciplinary Hearing

Following a threshold determination, Occidental holds a 

disciplinary hearing before a three-member panel or, at the 

hearing coordinator’s discretion, an external adjudicator. The 

hearing is “not intended to be adversarial” and is “not comparable 

to a criminal trial.” The complainant and respondent are not 

permitted to question each other directly. Instead, “the parties 

may submit questions to the hearing panel [or adjudicator] in 

writing [both prior to and during the hearing], which may be 

posed at the discretion of the hearing panel [or adjudicator].” The 

parties “may . . . request alternative testimony options that 

would not require physical proximity to the other party.” The 

hearing panel or adjudicator determines the respondent’s 

responsibility by a preponderance of the evidence and documents 

its findings in writing. If the hearing panel or adjudicator finds 

the respondent violated the sexual misconduct policy, it 

recommends an appropriate sanction to the hearing coordinator. 

“The Hearing Coordinator, in consultation with the Title IX
15

Coordinator, will review the recommendations and impose an 

appropriate sanction.” When the panel or adjudicator concludes 

the respondent committed a sexual assault, the student “may 

receive a sanction ranging from suspension to expulsion.” Either 

party may appeal the decision. 

Jane, John, the lead investigator, and five freshman 

students—Gavin, Angela, Aidan, Genevieve, and Chloe—testified 

during a one-day hearing before the external adjudicator. Jane 

testified her memory of the incident was “foggy.” She 

remembered some details days and weeks later, after she had 

spoken with others. She did not remember having intercourse 

with John, but a few days after their encounter she remembered 

she had oral sex with him. She did not remember sending the 

text messages. 

John testified there was no alcohol in his room, he did not 

see Jane drink any alcohol, and he did not hear Angela express 

concern about Jane’s drinking. He also testified, somewhat 

inconsistently: “I knew [Jane] was drunk. I did not know—I

didn’t really know she was drunk. I knew she’d been drinking. I 

didn’t know to what level of impairment she was at. But we were 

. . . conversing normally and having relatively normal 

interactions for an hour or so, in that window before she left [my 

room] and came back. In no way did I think or was she 

incapacitated during that time.” 

Based on the investigative report, the summaries of the 

witness interviews, and the testimony of the witnesses at the 

hearing, the adjudicator found by a preponderance of the 

evidence John violated Occidental’s sexual misconduct policy by 

sexually assaulting Jane and having non-consensual sexual 

contact with her. The adjudicator found that Jane’s text 
16

messages, “coupled with her actions in returning to [John’s] room 

after that exchange of text messages[,] are conduct and 

statements that would indicate that she consented to sexual 

intercourse with [John],” but that Jane was incapacitated when 

she engaged in the conduct. The adjudicator also found that 

John, who “was more intoxicated than he had ever been,” “did not 

have actual knowledge of [Jane’s] incapacitation,” but that a 

sober person in John’s position should have known Jane was 

incapacitated and could not consent.3 The adjudicator issued a 

written decision, and Occidental expelled John. 

D. John Files an Administrative Appeal and a Petition 

for Writ of Mandate 

As authorized by Occidental’s sexual misconduct policy, 

John appealed in writing to the hearing coordinator. John had 

the “burden of proof . . . as the original determination and 

sanction are presumed to have been decided reasonably and 

appropriately.” Counsel for Jane submitted a written response to 

John’s appeal. The hearing coordinator asked the assistant 

director for housing services to act as the appeals officer and 

review the appeal. The assistant director conducted a 

“deferential” review for “clear error” and found “no basis for 

overturning the external adjudicator’s decision.” 

John filed a petition for administrative mandate under 

Code of Civil Procedure section 1094.5 in the trial court.4 John 

 

3 John does not challenge the sober person standard in 

Occidental’s policy.

4 “If a private college has a procedure for conducting sexual 

misconduct disciplinary proceedings, an accused student may 
17

argued the hearing was unfair because the proceedings were 

“typified by [a] lack of impartiality,” the adjudicator 

“purposefully” failed to ask questions that John had proposed and 

that were “critical” to his defense, and the hearing coordinator 

denied John “reasonable access to evidence.” John also asserted 

the evidence did not support the adjudicator’s findings. The trial 

court denied the petition and entered a judgment in favor of 

Occidental. John timely appealed. 

DISCUSSION

A. Standard of Review 

“A university disciplinary proceeding concerning sexual 

misconduct does not involve a fundamental vested right; thus, we 

review the administrative decision applying the same standard of 

review applicable in the trial court.” (Doe v. University of 

Southern California (2018) 29 Cal.App.5th 1212, 1231 (USC III); 

accord, Doe v. Occidental College (2019) 37 Cal.App.5th 1003, 

1013 (Occidental); Doe v. Allee (2019) 30 Cal.App.5th 1036, 1060 

(Allee).) “The question presented by a petition for writ of 

administrative mandate is whether the agency or tribunal that 

issued the decision being challenged ‘proceeded without, or in 

excess of, jurisdiction; whether there was a fair trial; and 

whether there was any prejudicial abuse of discretion.’ ([Code 

Civ. Proc.,] § 1094.5, subd. (b).) ‘Abuse of discretion is 

established if the respondent has not proceeded in the manner 

 

challenge the outcome of the proceedings in a petition for a writ 

of administrative mandate.” (Doe v. Westmount College (2019) 34 

Cal.App.5th 622, 634.)
18

required by law, the order or decision is not supported by the 

findings, or the findings are not supported by the evidence.’” (Doe 

v. University of Southern California (2018) 28 Cal.App.5th 26, 34 

(USC II); accord, Occidental, at p. 1014; USC III, at p. 1230.) 

However, “[w]e review the fairness of the administrative 

proceeding de novo. ‘A challenge to the procedural fairness of the 

administrative hearing is reviewed de novo on appeal because the 

ultimate determination of procedural fairness amounts to a 

question of law.’ [Citation.]” (Doe v. University of Southern 

California (2016) 246 Cal.App.4th 221, 239 (USC I); see 

Occidental, at p. 1014 [“we review the fairness of the proceedings 

de novo, and the substantive decision for substantial evidence”].)

B. The Disciplinary Hearing Was Fair

1. The Hearing Requirements in Private College 

Sexual Misconduct Proceedings

In several recent cases, California courts have found fault 

with the procedures in private university sexual misconduct 

disciplinary proceedings. These deficiencies include failing to 

interview or hear testimony from and assess the credibility of 

critical witnesses (Doe v. Westmont College (2019) 34 Cal.App.5th 

622, 636-637 (Westmont); USC III, supra, 29 Cal.App.5th at pp. 

1215-1216, 1232-1237), failing to give the respondent notice of 

the factual basis for the charges or access to evidence (Westmont, 

at pp. 637-638; Doe v. Regents of University of California (2018) 

28 Cal.App.5th 44, 46, 58-59 (UCSB);5 USC I, supra, 246 

 

5 The UCSB case concerns a public university, which is 

subject to federal constitutional guarantees not applicable to 

private colleges and universities. Nevertheless, the case is 
19

Cal.App.4th at pp. 241-244), not allowing the respondent to 

submit questions for the panel or adjudicator to ask the 

complainant and other witnesses (Westmont, at pp. 638-639; USC 

III, at pp. 1237-1238; UCSB, at pp. 46, 60; Doe v. Claremont 

McKenna College (2018) 25 Cal.App.5th 1055, 1057-1058 

(Claremont)), and failing to ensure witnesses appear, directly or 

indirectly, for cross-examination (Allee, supra, 30 Cal.App.5th at 

p. 1039; USC III, at pp. 1215-1216, 1237-1238; Claremont, at pp. 

1057-1058, 1070).

In Westmont, supra, 34 Cal.App.5th 622 the court 

summarized the requirements for a fair hearing. The court 

emphasized that a college disciplinary proceeding is not like a 

criminal proceeding: “A college’s procedure for investigating and 

adjudicating student sexual misconduct allegations is not 

analogous to a criminal proceeding. [Citation.] . . . [¶] A fair 

hearing strives to balance three competing interests: The 

accused student seeks ‘“‘to avoid unfair or mistaken exclusion 

from the educational process.’”’ [Citation.] The college tries to 

provide a safe environment for all of its students. [Citation.] The 

alleged victim—who often ‘“live[s], work[s], and stud[ies] on a 

 

instructive. (See Westmont, supra, 34 Cal.App.5th at p. 634 

[“[t]he common law requirements for a fair hearing at a private 

college ‘mirror the due process protections at public 

universities’”]; USC III, supra, 29 Cal.App.5th at p. 1232, fn. 25 

[public university “‘[d]ue process jurisprudence may be 

“instructive” in cases determining fair hearing standards for 

student disciplinary proceedings at private schools’”]; Doe v. 

Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1057-

1058, 1067, fn. 8 [“[federal] [d]ue process jurisprudence . . . may 

be ‘instructive’ in cases determining fair hearing standards for 

student disciplinary proceedings at private schools”].)
20

shared college campus”’ with the accused—wants to safeguard his 

or her own well-being. [Citation.] [¶] These competing interests 

‘must be addressed in light of the nature of a [college] and the 

limits of its resources.’ [Citation.] A college’s primary purpose is 

education. [Citation.] Hearing requirements that are too formal 

and rigid divert resources and attention from that purpose. 

[Citation.] Accordingly, ‘all the safeguards and formalities of a 

criminal trial’ are not required. [Citation.] ‘Although [a college] 

must treat students fairly, it is not required to convert its 

classrooms into courtrooms.’” (Westmont, at pp. 634-635; see Doe 

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

1078 (UCSD) [“‘“[p]rocedures for dismissing college students [are] 

not analogous to criminal proceedings and could not be so 

without at the same time being both impractical and detrimental 

to the educational atmosphere and functions of a university”’”];

Doe v. University of Kentucky (6th Cir. 2017) 860 F.3d 365, 370 

[“school disciplinary proceedings, while requiring some level of 

due process, need not reach the same level of protection that 

would be present in a criminal prosecution”].) 

The court in Westmont explained: “‘[N]o particular form of 

student disciplinary hearing is required under California law.’ 

[Citation.] . . . At a minimum, the college must comply with its 

own policies and procedures. [Citation.] Those procedures must 

provide the accused student with a hearing before a neutral 

adjudicatory body. [Citation.] The accused must be permitted to 

respond to the evidence against him or her. [Citations.] The 

alleged victim and other critical witnesses must appear before 

the adjudicatory body in some form—in person, by video 

conference, or by some other means—so the body can observe 

their demeanor. [Citations.] This is because ‘“the opportunity to 
21

question a witness and observe [his or her] demeanor while being 

questioned can be just as important to the trier of fact as it is to 

the accused.” [Citation.]’ [Citation.] ‘Recognizing the risk that 

an accusing witness may suffer trauma if personally confronted 

by an alleged assailant at a hearing, [the USC I court observed] 

that mechanisms can readily be fashioned to “provid[e] accused 

students with the opportunity to hear the evidence being 

presented against them without subjecting alleged victims to 

direct cross-examination by the accused.” [Citation.]’ [Citation.] 

It is not necessary to place the alleged victim and the accused in 

the same room. [Citation.] [¶] The college must provide the 

accused student with the names of witnesses and the facts to 

which each testifies. [Citations.] The accused must be able to 

pose questions to the witnesses in some manner, either directly 

or indirectly, such as through the adjudicatory body. [Citations.] 

The body need not ask every question proposed by the accused.” 

(Westmont, supra, 34 Cal.App.5th at p. 635.)

In particular, direct cross-examination of a complainant by 

a respondent is not only not required, it is inappropriate. “In 

administrative cases addressing sexual assault involving 

students who live, work, and study on a shared college campus, 

cross-examination is especially fraught with potential 

drawbacks.” (USC I, supra, 246 Cal.App.4th at p. 245; accord, 

Claremont, supra, 25 Cal.App.5th at p. 1067.) As the United 

States Department of Education Office for Civil Rights once 

observed, “Allowing an alleged perpetrator to question an alleged 

victim directly may be traumatic or intimidating, thereby 

possibly escalating or perpetrating a hostile environment.” (U.S. 

Dept. of Ed., Off. for Civil Rights, “Dear Colleague” letter, Apr. 4, 

2011, p. 12 < https://www2.ed.gov/about/offices/list/ocr/letters/
22

colleague-201104.pdf > [as of Aug. 9, 2019], archived at 

<https://perma.cc/PEF7-3ZVC>; withdrawn by U.S. Dept. of Ed., 

Off. for Civil Rights, “Dear Colleague” letter, Sept. 22, 2017,

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix201709.pdf> [as of Aug. 9, 2019], archived at <https://perma.cc/

8YTD-59M8>.)6

2. John’s Hearing Was Fair

Occidental hired independent investigators to investigate 

Jane’s complaint. As prescribed by Occidental’s policy, the 

investigators did not determine responsibility. The hearing 

coordinator made a threshold determination the evidence 

warranted a hearing and informed John and Jane of that 

determination. She also gave them written notice of the conduct 

underlying the alleged policy violations. In doing so, the hearing 

coordinator did not assess credibility or determine responsibility. 

Jane and John each had an opportunity to review the 

investigation report and the witness interview summaries. 

Advisors assisted Jane and John and attended the hearing with 

them. The witnesses, including Jane, appeared in person. John 

proposed questions before and during the hearing for the 

adjudicator to ask Jane, and the adjudicator asked some of them. 

 

6 In November 2018 the Department of Education Office for 

Civil Rights issued proposed Title IX regulations pursuant to 

which, among other things: a person may not serve as both 

investigator and adjudicator; live hearings are required; and an 

accused student’s advisor may cross-examine the accuser and 

other witnesses, either in person or with technology that allows 

the decision-maker and the parties to simultaneously see and 

hear the witness. (Proposed Regulations, § 106.45, subds. (b)(3), 

(b)(4) (2018).)
23

The adjudicator heard the evidence and determined by a 

preponderance of the evidence John had violated the policy. 

Occidental’s policy complied with all the procedural requirements 

identified by California cases dealing with sexual misconduct 

disciplinary proceedings: both sides had notice of the charges and 

hearing and had access to the evidence, the hearing included live 

testimony and written reports of witness interviews, the critical 

witnesses appeared in person at the hearing so that the 

adjudicator could evaluate their credibility, and the respondent 

had an opportunity to propose questions for the adjudicator to 

ask the complainant. (See generally Westmont, supra, 34 

Cal.App.5th at p. 635.) 

3. John’s Contentions the Hearing Was Unfair Are 

Meritless

John argues his hearing was unfair because the hearing 

coordinator excluded a “charge evaluation worksheet” indicating 

the Los Angeles County District Attorney’s Office had declined to 

prosecute John criminally. John also argues the hearing 

coordinator and the independent adjudicator were biased. Each 

of these arguments lacks merit.

a. John’s arguments concerning the charge 

evaluation worksheet are forfeited and do

not support mandamus relief

The district attorney’s office gave counsel for John a copy of 

a “charge evaluation worksheet” reflecting the district attorney’s 

decision not to prosecute John. Counsel forwarded the worksheet 

to Occidental’s investigators. The investigators commented in 

their report that counsel for John had sent them the worksheet. 
24

The investigators attached the worksheet as an exhibit, but they 

did not discuss it in their report.7 Someone, presumably the 

hearing coordinator, later redacted the exhibit from the 

investigator’s report.8 

John argues the adjudicator precluded him from using the 

worksheet to impeach witnesses at the disciplinary hearing. In 

particular, John contends he wanted to use this statement in the 

worksheet: “Witnesses were interviewed and agreed that the 

victim and suspect were both drunk, however, that they were 

both willing participants exercising bad judgment.” John 

contends the adjudicator “effectively precluded [him] from 

impeaching any witness who spoke with [police] investigators 

and later told [Occidental’s] investigators that Jane was not a 

willing participant.” 

There is nothing in the record of the disciplinary hearing, 

however, reflecting John ever sought to use the worksheet at the 

hearing or to question any witness about what he or she told the 

police. Nor is there any record the hearing adjudicator or 

 

7 The copy counsel for John gave the investigators was

heavily redacted. The record does not show whether someone 

redacted it before or after counsel for John received it from the 

district attorney’s office.

8 Occidental’s sexual misconduct policy authorized the 

hearing coordinator to “review the investigative report, any 

witness statements[,] and any other documentary evidence” and 

to “redact information that is irrelevant, more prejudicial than 

probative, or immaterial,” “statements of personal opinion, rather 

than direct observations or reasonable inferences from the facts, 

and statements as to general reputation for any character trait, 

including honesty.” 
25

coordinator ever precluded John from impeaching any of the 

witnesses with the worksheet. John did not argue at the 

disciplinary hearing, in his administrative appeal, or in the trial 

court he wanted to use or was precluded from using the 

worksheet for impeachment purposes.9 By failing to make the 

argument until his appeal to this court, John forfeited it. (See 

USC III, supra, 29 Cal.App.5th at p. 1230 [“[g]enerally, a party 

cannot raise new issues . . . for the first time on appeal”]; USC II, 

supra, 28 Cal.App.5th at p. 37 [“[b]ecause this issue was not 

raised during the administrative proceedings or in the superior 

court, . . . [the university] did not have an opportunity to address 

it; and it would normally be deemed forfeited”]; id. at p. 41 

[appellant forfeited the argument the university compromised his 

ability to gather evidence to defend himself by not raising the 

issue in his administrative appeal and raising it “only . . . in 

passing” in the trial court].) 

In any event, even if John had sought to impeach someone 

with the worksheet and the adjudicator had precluded him from 

doing so, any error in such a ruling would have been harmless. 

(See Thornbrough v. Western Placer Unified School Dist. (2013) 

223 Cal.App.4th 169, 200 [“it is well settled that the improper 

admission or rejection of evidence at an administrative hearing 

does not provide ‘grounds for reversal unless the error has 

resulted in a miscarriage of justice”’ and it is “‘reasonably 

probable a more favorable result would have been reached absent 

the error’”]; McCoy v. Board of Retirement (1986) 183 Cal.App.3d 

 

9 John briefly argued in his administrative appeal the 

worksheet was new evidence that was unavailable during the 

disciplinary hearing because it was redacted from the 

investigation report. 
26

1044, 1054 [“[a]n administrative agency is not required to observe 

the strict rules of evidence enforced in the courts, and the 

admission or rejection of evidence is not ground for reversal 

unless there has been a denial of justice”].) Whether one of the 

witnesses at the hearing had made a prior inconsistent statement 

about Jane’s willingness to engage in sexual activity with John 

would have had little if any impact on the adjudicator’s 

conclusions Jane was, and John should have known she was, 

incapacitated due to intoxication. The question the adjudicator 

decided was not whether witnesses thought Jane was willing, but 

whether Jane was able to make “an informed and rational 

decision to engage in sexual activity.” Thus, even if John had 

attempted to impeach one or more of the witnesses with the 

worksheet, there is no reasonable likelihood the result would 

have been any different. 

 

b. The hearing coordinator was not biased 

John argues the hearing coordinator was, or appeared to 

be, biased against him because she made a post-investigation 

threshold determination there was sufficient information from 

which an adjudicator could find John violated Occidental’s sexual 

misconduct policy and she released information to be considered 

at the hearing only five days prior to the hearing. John also 

complains that the hearing coordinator was “vested with the 

opportunity to ‘impose an appropriate sanction’ in consultation 

with the Title IX Coordinator” and that the policy required the 

hearing coordinator to attend all meetings with the adjudicator 

and to advise the adjudicator on policy and procedure. 

John’s obligation “is to demonstrate actual bias. A 

disciplinary decision may not be invalidated solely on the basis of 
27

an inference or appearance of bias.” (Allee, supra, 30 Cal.App.5th 

at p. 1060; see Occidental, supra, 37 Cal.App.5th at p. 1018 [“‘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.”’”’”]; Gai v. City of Selma 

(1998) 68 Cal.App.4th 213, 220 [same].) A “‘mere belief that [a 

school official] acted with . . . ulterior motives is insufficient to 

state a claim for relief.’” (Allee, at pp. 1060-1061.)

John has not shown actual bias. Unlike the policies of 

some colleges and universities, Occidental’s policy does not have 

a college or university official serving in a dual role as both 

investigator and adjudicator. (See Allee, supra, 30 Cal.App.5th at 

p. 1061 [“[t]he fact finder may not be a single individual with the 

divided and inconsistent roles [of investigator and adjudicator]”.) 

And even if Occidental’s policy had such a feature, that without 

more would not be sufficient to show actual bias. (See Westmont, 

supra, 34 Cal.App.5th at p. 637 [“‘“[t]he combination of 

investigative and adjudicative functions does not, without more,”’ 

deprive a student accused of sexual misconduct of a fair 

hearing”]; USC III, supra, 29 Cal.App.5th at p. 1235, fn. 29 

[“[a]lthough the Title IX investigator held dual roles as the 

investigator and adjudicator, ‘the combination of investigative 

and adjudicative functions does not, without more, constitute a 

due process violation’”].) Moreover, in making her threshold 

determination, the hearing coordinator here played no role in 

determining whether John violated the sexual misconduct policy, 

did not make any findings on credibility or recommendations

regarding responsibility, and did not participate in the 

adjudicator’s decision. The hearing coordinator attended 
28

pre-resolution meetings and the disciplinary hearing only “to 

serve as a resource for the [adjudicator] on issues of policy and 

procedure, and to ensure that policy and procedure [were] 

appropriately followed throughout the hearing.”10 And the 

hearing coordinator participated in the sanction decision only 

after the adjudicator concluded John had violated the policy.11 

The coordinator’s participation in that decision did not reflect any 

bias that negatively affected John or influenced the adjudicator’s 

decision.

John argues the hearing coordinator “unfairly released 

information that was to be used at the hearing . . . just five days 

before [the hearing]—knowing that [John], an 18-year-old 

freshman without any legal background—bore the responsibility 

of defending himself in [Occidental’s] process.” But when the 

hearing coordinator released the investigation report and 

summaries of witness statements to John and Jane, she was not 

 

10 Occidental’s policy provides: “The Hearing Panel [or single 

adjudicator as here] is supported by the Hearing Coordinator, 

who is present at hearing panel meetings, but is not . . . a voting 

member of the panel. He or she will meet with all involved 

parties prior to the hearing, be present during the hearing to 

serve as a resource for the hearing panel on issues of policy and 

procedure, and to ensure that policy and procedure are 

appropriately followed throughout the hearing.” 

11 The policy states: “If the [hearing] panel [or adjudicator] 

finds the Respondent responsible, the panel will then recommend 

appropriate sanctions to the Hearing Coordinator. The Hearing 

Coordinator, in consultation with the Title IX Coordinator, will 

review the recommendations and impose an appropriate 

sanction.” 
29

exhibiting bias, she was complying with the policy to release this 

information “at least five (5) business days prior to the hearing.”

12 

John has not cited any authority holding that five business days 

is insufficient or unfair. Nor is it accurate to say John was 

“defending himself.” John was represented by counsel (although 

not at the hearing), who was able to assist John and his advisor 

to prepare for the hearing. Finally, John does not identify any 

prejudice he suffered by not having the information from the 

hearing coordinator any sooner, nor does he argue what, if 

anything, he would have done differently with additional time to 

prepare for the hearing. (See USC II, supra, 28 Cal.App.5th at p. 

40 [“Doe does not indicate how his delay in reviewing” the 

information showing his academic dishonesty “prejudiced his 

case”].)

Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 

Cal.App.4th 81, on which John relies, is distinguishable. In that 

case an assistant city attorney advocated for the city in 

connection with the plaintiff’s attempts to renew a permit to 

operate a cabaret. After the city denied the plaintiff’s permit 

application, the same assistant city attorney advised the 

decisionmaker on the plaintiff’s administrative appeal of the 

decision to deny the permit. (Id. at pp. 84-86, 96.) The court held 

the assistant city attorney’s dual role as advocate and adjudicator 

violated the plaintiff’s due process rights. (Id. at pp. 86, 97-98.) 

Here, in contrast, the hearing coordinator did not act as an 

advocate or adjudicate John’s responsibility. As discussed, in 

making her threshold determination the investigation report 

 

12 The hearing coordinator made the relevant materials 

available to Jane and John on Sunday, December 1, 2013 at 

9:00 p.m. The hearing was on Saturday, December 7, 2013. 
30

contained “sufficient information upon which an adjudicator 

could find a violation of the [sexual misconduct] policy,” the 

hearing coordinator did not make findings on credibility or fault. 

c. The independent adjudicator was not

biased

John argues the adjudicator was biased and “antagonistic” 

toward him because she refused to ask Jane 29 of the 38 written 

questions he submitted.13 John asserts the unasked questions 

“were designed to illustrate for the adjudicator that [Jane] had 

made statements indicating her consciousness and awareness 

before, during, and after the sexual activity, undermining her 

claim of incapacitation.” John concludes that, “[h]ad [these] 

additional 29 questions been posed to [Jane], the frailty of her 

tenuous claim, and her dubious credibility, would have become 

more apparent [to the adjudicator]. Specifically, [the adjudicator] 

would have been exposed to evidence demonstrating that [Jane] 

was able to recall extensively the events that occurred, 

undermining [Jane’s] claim that she had experienced ‘blackouts’ 

and incapacitation.” 

John has again failed to show bias. Under Occidental’s 

policy, the adjudicator had the discretion not to ask questions 

that were inappropriate, irrelevant, or cumulative.14 There is 

 

13 John also proposed questions for the adjudicator to ask 

several of the witnesses, but he does not argue the adjudicator 

evidenced any bias in asking or not asking any of those questions.

14 Occidental’s policy provides that “the parties may submit 

questions to the hearing panel [or, as here, the adjudicator] in 

writing, which may be posed at the discretion of the hearing 

panel [or adjudicator].” 
31

nothing unfair about granting the adjudicator this kind of 

discretion. (See Westmont, supra, 34 Cal.App.5th at p. 635 [“[t]he 

[adjudicatory] body need not ask every question proposed by the 

accused”]; Claremont, supra, 25 Cal.App.5th at p. 1073 [“granting 

the fact finder discretion to exclude or rephrase [proposed] 

questions” is appropriate and “strikes a fair balance among the 

interests of the school, the accused student, and the 

complainant”]; UCSD, supra, 5 Cal.App.5th at p. 1085 

[permitting the hearing panel chair to screen the accused’s 

written questions and ask only those questions that are not 

repetitive or irrelevant did not, “as a procedural concern,” render 

the hearing unfair].) 

Nor has John shown the adjudicator’s failure to ask all of 

the questions he proposed caused him prejudice. (See UCSD, 

supra, 5 Cal.App.5th at p. 1086 [adjudicator’s failure to ask or 

paraphrase certain questions did not prejudice the appellant]; id. 

at p. 1088 [adjudicator’s “decision not to ask Jane question No. 4 

did not prejudice John whatsoever”].) Only five of John’s 

proposed questions concerned statements Jane made about what 

she remembered. Four of those five questions concerned what 

Jane told the investigators, and the fifth was whether Jane told 

people the day after the incident she had a hard time 

remembering what had occurred.15 Jane’s responses to those 

 

15 (1) “Did you tell the investigators that John told you to 

come back down ‘so he can fuck you?[’]” (2) “The next day, 

Sunday, did you tell people that you had a difficult time 

remembering what happened that night?” (3) “But in your 

statement, you told the investigators about a number of things 

that you do remember happening about that time, correct?” (4)

“You told the investigators that you remembered asking John if 
32

questions would have been cumulative or, as the trial court 

found, “duplicative of evidence already in the record.” The 

investigation report, the investigators’ summary of Jane’s 

interview, the lead investigator’s testimony at the hearing, Jane’s 

testimony, and the testimony of the five students, all included 

statements about what Jane said she remembered. The 

adjudicator knew what Jane told the investigators and other 

students about what she remembered. The adjudicator 

considered the extent to which Jane did or did not remember her 

encounter with John and the surrounding events. The 

adjudicator found: “[Jane] states, and the external adjudicator 

believes, she has no recollection of having sexual intercourse with 

[John].”16

John also asserts the adjudicator “demonstrated curt and 

contentious reactions to [him].” He relies solely on the following 

exchange, which occurred during his opening statement: “[John:] 

So, to reiterate again, I didn’t sexually assault Jane Doe. I would 

never and could never do something like that. And the police 

 

he had a condom because you had not used any birth control, is 

that right?” (5) “You told the investigators that you remembered 

performing oral sex on John when you were in his room, correct?” 

16 Eleven additional questions John proposed asked whether 

Jane remembered specific events, for example, “You remember 

giving John your cell phone number . . . .” Five questions asked 

whether Jane had sent specific text messages.

*

 And one question 

asked Jane to draw a legal conclusion: “So even if you don’t 

remember now, or have blocked it out, at the time you and John 

had sex in his room, you were conscious and aware, isn’t that 

right?” 

* As stated, Jane testified she did not remember sending 

any text messages. 
33

investigation agrees. [¶] [The Adjudicator]: I’d like to stop you 

from any reference to the police investigation, please.” Of course, 

a hearing transcript does not convey the speaker’s tone of voice. 

But there was nothing inherently curt or contentious about the 

adjudicator’s statement. Nor does the hearing transcript contain 

any evidence the adjudicator was curt to or contentious with John 

at any other time during the proceeding. To the contrary, the 

record reflects the adjudicator was consistently polite to all 

participants.

d. There was no “cumulative impact” 

John contends “this Court should find that the cumulative 

impact of how [Occidental] conducted its disciplinary proceeding 

against [him] contains a notable stench of unfairness.” As 

discussed, there was no instance of unfairness, let alone 

cumulative unfairness.

C. There Was Substantial Evidence John Should Have 

Known Jane Was Incapacitated 

“When reviewing a university’s disciplinary actions, ‘“[t]he 

power of an appellate court begins and ends with the 

determination as to whether there is any substantial evidence, 

contradicted or uncontradicted, that will support the finding.” 

[Citation.]’ [Citation.] . . . ‘[T]his does not mean we must blindly 

seize any evidence in support of the [determination] in order to 

affirm the judgment . . . . “[I]f the word ‘substantial’ [is to mean] 

anything at all, it clearly implies that such evidence must 

be . . . reasonable . . . , credible, and of solid value . . . .” 

[Citation.] The ultimate determination is whether a reasonable 

trier of fact could have [made the findings] based on the whole 
34

record.’” (USC I, supra, 246 Cal.App.4th at pp. 248-249; see M.N. 

v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607, 

616 [“[t]he court must ‘accept all evidence which supports the 

successful party, disregard the contrary evidence, and draw all 

reasonable inferences to uphold the [administrative decision’”].) 

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

. . . .’” (M.N., at p. 616; accord, Occidental, supra, 37 Cal.App.5th 

at p. 1019.)

There was substantial evidence that Jane was 

incapacitated and that, despite her possible apparent assent, a 

sober person in John’s position should have known she was 

incapacitated. Jane was extremely intoxicated. In John’s 

presence, Jane drank at least three or four shots of vodka and 

was stumbling and leaning on walls and furniture for support. 

Angela, in John’s presence, told Jane to stop drinking, and 

Angela repeatedly tried to take the vodka bottle away from Jane. 

According to Angela, Jane was too drunk to know what she was 

doing, where she was, or where she was going. When Jane 

returned alone to John’s room, she told him she had just vomited. 

Jane’s intoxication increased while she was alone with John. 

When she left John’s room, Jane was, according to her roommate, 

“past drunk.” The next morning, Jane suspected but did not 

know whether she had sex with John. The adjudicator 

reasonably concluded that Jane was unable to make “an informed 

and rational decision to engage in sexual activity” and that John, 

had he been sober, should have known it. 
35

DISPOSITION

The order denying John’s petition for a writ of mandate is 

affirmed. Occidental is to recover its costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

STONE, J.

 

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

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

Constitution.
Filed 9/23/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JOHN DOE,

Plaintiff and Appellant,

v.

OCCIDENTAL COLLEGE,

Defendant and Respondent.

 B284707

 (Los Angeles County

 Super. Ct. No. BS147275)

 ORDER CERTIFYING OPINION FOR 

 PUBLICATION; NO CHANGE IN 

 APPELLATE JUDGMENT

THE COURT: 

The opinion in this case filed August 27, 2019 was not certified for 

publication. Because the opinion meets the standards for publication specified 

in California Rules of Court, rule 8.1105(c), the respondent’s request for 

publication under California Rules of Court, rule 8.1120(a), is granted.

IT IS HEREBY CERTIFIED that the opinion meets the standards for 

publication specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the opinion be published in the Official Reports.

This order does not change the appellate judgment. 

PERLUSS, P. J. SEGAL, J. STONE, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article 

VI, section 6 of the California Constitution.