Filed 4/5/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JOHN DOE, 

Plaintiff and Appellant,

v.

UNIVERSITY OF SOUTHERN 

CALIFORNIA,

Defendant and Appellant.

 B262917

 (Los Angeles County

 Super. Ct. No. BS148077)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert 

H. O‟Brien, Judge. Affirmed in part. Reversed and remanded in part.

Scheper Kim & Harris, David C. Scheper, Marc S. Harris and Amos A. Lowder 

for Plaintiff and Appellant.

Paul Hastings, J. Al Latham Jr., and Felicia A. Davis for Defendant and Appellant.
2

INTRODUCTION

University of Southern California (USC) found that student “John Doe”

1

violated 

USC‟s student conduct code as a result of his participation in a group sexual encounter at 

a fraternity party. Another student, “Jane,” alleged she had been sexually assaulted by a 

group of men at the party. She reported that her sexual contact with John was 

consensual, but certain contact with the other men was not. USC‟s office of Student 

Judicial Affairs and Community Standards (SJACS) investigated Jane‟s allegation and 

found that John violated nine sections of the student conduct code, including the section 

prohibiting sexual assault. John appealed to USC‟s Student Behavior Appeals Panel

(Appeals Panel), which found that there was insufficient evidence of any sexual assault. 

The Appeals Panel nonetheless held that John violated two sections of the student 

conduct code: He “encouraged or permitted” other students to slap Jane on the buttocks 

during the sexual activity, which the parties agree was not consensual, in violation of 

Student Conduct Code section 11.44C (section 11.44C), and he endangered Jane by

leaving her alone in the bedroom when the involved parties dispersed in violation of 

Student Conduct Code section 11.32 (section 11.32).

John petitioned for a writ of mandate in the superior court, arguing that he was not 

afforded a fair hearing and that there was insufficient evidence to support the Appeals 

Panel‟s finding that he violated the Student Conduct Code. The court rejected John‟s fair 

hearing challenge. It also held that there was substantial evidence to support the Appeals 

Panel‟s finding that John violated section 11.44C by encouraging and permitting the 

other students‟ behavior, but that there was not sufficient evidence to support the finding 

that John violated section 11.32 by endangering Jane. 

John appeals on both procedural and substantive grounds. USC cross-appeals the 

trial court‟s ruling granting John‟s petition as to section 11.32.

 

1

The names of appellant and all students involved have been changed or 

abbreviated in this opinion, as they were in the trial court below. 
3

John argues that he was denied a fair hearing. We agree. Although SJACS gave 

John a list of Student Conduct Code sections he allegedly violated, SJACS did not

provide John with any notice of the factual basis for these charges. The SJACS 

investigation and report focused on alleged sexual assault and whether Jane consented to 

sexual contact. The Appeals Panel, on the other hand, suspended John for encouraging 

other students to slap Jane and for endangering Jane after all sexual contact had ended. 

Because John never received notice of the factual basis of the allegations and the SJACS 

investigation focused on Jane‟s consent to sexual activity, John was not afforded an

adequate opportunity to defend his actions relating to the slaps or leaving the bedroom. 

USC therefore failed to provide John fair notice of the allegations that resulted in 

suspension, or an adequate hearing on those allegations. 

John also argues there was insufficient evidence to support the Appeals Panel‟s 

finding that he violated section 11.44C. USC argues on cross-appeal that the Appeals 

Panel‟s finding that John violated section 11.32 should be reinstated; John argues there is 

insufficient evidence of this violation as well. We agree with John that the evidence does 

not support the Appeals Panel‟s findings as to either violation. There is no substantial

evidence that John encouraged or permitted other students to slap Jane on the buttocks in 

violation of section 11.44C, because the evidence does not demonstrate that John knew 

they would slap Jane nor that John was in a position to prevent them from doing so. 

There is also no evidence to support a violation of section 11.32, because the Appeals 

Panel‟s finding that John endangered Jane by leaving the bedroom contradicts both 

John‟s and Jane‟s recollection of relevant events. The trial court‟s judgment is therefore 

affirmed in part and reversed in part. 

FACTUAL AND PROCEDURAL BACKGROUND

A. The incident

The following facts are taken from the administrative record. The basic facts are 

undisputed, although there are some inconsistencies in the details. Relevant factual 

discrepancies are discussed in the following section relating to the investigation.
4

Jane, who was a student and athlete at USC, and a group of her friends attended a 

fraternity party in January 2013 at a large, off-campus house in the hills near Los 

Angeles. Jane and her friends caught a bus from the fraternity house to the party 

location. John, a member of the USC football team, was on the same bus. Also attending 

the party were two male students from an out-of-state university, “Student 1” and 

“Student 2,” who were friends of John‟s teammate. 

At some point in the evening Jane began to dance, and John began dancing with 

her. John said that he and Student 1 were both dancing with Jane, “sandwiching” her

between them. When asked about this, Jane did not remember whether it had occurred.2

After dancing together for a few minutes, John pushed Jane onto a couch and gave her a

provocative “lap dance,” which John characterized as “flirtatious” and “silly,” and Jane 

characterized as somewhat “uncomfortable” because people were watching. After the 

dance, John, Jane, and Student 1 went to a bedroom together. John had vaginal 

intercourse with Jane while Jane performed oral sex on Student 1. During the sexual 

activity, John and Student 1 made comments to each other about Jane‟s body. All parties 

agree that the entirety of this encounter was consensual. Jane returned to her group of 

friends and told them she had sex with John; she seemed happy and excited about it. 

Approximately 45 minutes later, Jane and John returned to the bedroom a second 

time. There were multiple men in the room, and people were continually entering and 

exiting the room. Jane could not remember if she had vaginal intercourse with John 

again. She performed oral sex on John for about 15-30 seconds while lying on her 

stomach and elbows. As she did this, Jane was either completely undressed or her dress 

was pulled up over her hips. Someone behind Jane pulled her to her knees, and she felt 

her vagina being penetrated intermittently with penises and fingers. 

 

2 Both Jane and John consumed alcohol that night, but at no point was either of 

them incoherent or passed out. Jane repeatedly told investigators that her memory was 

“blurry,” “foggy,” and “patchy” as a result of her alcohol consumption. The parties‟ 

ability to consent as a result of intoxication is not at issue in this appeal. 
5

At some point during this encounter, the other men present in the room—not 

including John—exceeded the scope of Jane‟s consent. One man began getting rough 

and hurting Jane by “forcefully finger[ing]” her. The men were also talking to each other 

about Jane. Jane recognized the voice of Student 1 saying, “How do you like that?” as 

she was being penetrated roughly. John was also saying “dirty things” about Jane and 

making “comments about my body.” Jane perceived these comments as degrading and 

demoralizing. Student 1 slapped Jane hard on the buttocks. Someone else, possibly 

Student 2, slapped Jane again. 

This interaction lasted for one to two minutes. Jane did not say anything to John 

or the other men, nor did she ask them to stop.3 Jane told interviewers that when the men 

“got rough” she thought she might cry; despite trying not to, she did begin to cry. John 

said out loud, “Is she crying?” and “I can‟t believe she‟s crying.” Jane perceived his 

statements as mocking or ridiculing rather than compassionate. 

All physical contact ceased “immediately” or “instantly” upon John‟s observation 

that Jane was upset and crying. John pulled away from Jane and according to Jane he 

“jumped, like not jumped up, but sped off the bed.” Once John got up, John and the other 

men dressed and left the room within 20 seconds. John estimated that the entire second 

encounter in the bedroom lasted five minutes or less. Jane‟s friend witnessed Jane 

emerge from the bedroom; Jane was crying and clearly upset. 

After the students returned to campus, John approached Jane and apologized for 

the other men, saying “I don‟t know why they smacked you.” Later, Jane texted to John, 

“Thanks for a good night. Your friends suck though.” A week or two later, Jane 

approached John at another party and tried to dance with him or talk to him; she thought 

she might “still have a chance with him.” John either ignored Jane or declined to dance

with her. 

 

3 We recognize that Jane‟s lack of verbalization at the time was not an indication 

of Jane‟s consent. Given the posture of the case before us, however, this fact is relevant 

to what John knew about Jane‟s situation, when he knew it, and how he acted upon that 

knowledge. 
6

B. The investigation

The incident happened in January 2013. Jane reported it to SJACS in August 

2013.4She told SJACS representatives that in mid-February her athletic coach suggested 

that she had confidence issues, and therefore recommended that she see an athletics 

counselor. When the counselor asked Jane if she had ever been sexually assaulted, “it 

dawned on me and I connected it.” She then reported to the counselor that she was 

assaulted by John and several other men at the party. She told her parents about the 

incident in July of that year, and reported the incident to the school in August. 

The progression of the investigation, as included in the administrative record, is

set forth sequentially below. The administrative record contains written reports detailing 

four interviews with Jane, two interviews with John, and interviews with several 

additional witnesses.5 The interview reports do not contain recordings or transcripts. 

The interviews were conducted by USC employees who were a part of SJACS and other 

USC administrative bodies. The main investigator was Donna Turner, Assistant Director 

of SJACS, who was present each of Jane‟s and John‟s interviews; each interview 

included a second USC representative as well. 

Turner and La Shonda Blunt Coleman, who is identified as the Director of the 

Center for Women and Men, first interviewed Jane on August 30, 2013. Jane reported 

that her memories of the night were foggy as a result of her intoxication. She said her 

memory of the first and second encounter blurred together. She told investigators about 

the lap dance, and said that her memory began to get “jumbled” starting from the first 

time she went into the bedroom with John and Student 1. She said she was “more drunk”

the second time they went to the bedroom. She knew other men were in the room at the

time, but she thought John would kick them out. Jane reported that she did not consent to 

 

4

The role of SJACS is not entirely clear in the record on appeal. It appears that 

SJACS receives reports of misconduct, investigates the alleged incident, determines 

whether discipline is warranted, and either recommends or directly imposes disciplinary 

action. 

5 A number of interviews with fraternity representatives and other witnesses who 

had no knowledge of the events concerning Jane and John are not discussed here. 
7

sexual activity with anyone other than John the second time they were in the bedroom 

together. 

The interview notes reflect Jane‟s statement that during the second encounter, 

“„One guy starts to forcefully finger me.‟ She recognized the voice as that of [John‟s] 

friend from the first incident. He was saying „How do you like that‟ and making other 

comments in a degrading and demoralizing manner.” The interview notes say that John

was also “„saying stuff; dirty things about me,‟” and John and the other men were 

“prompting and urging each other on in the activity.” Jane did not verbalize anything 

when the other men began to touch her, but the men were hurting her. Importantly, Jane 

did not mention anything about being slapped in this interview.

The interview notes state, “She was being hurt and started crying.” As soon as 

John observed out loud that Jane was crying, John and the other men stopped, quickly 

dressed, and left the room within 20 seconds, leaving Jane on the bed. One man who was 

not involved in the incident remained in the room. Jane said she crawled off the bed, 

found her clothes, and went into the bathroom attached to the bedroom to “pull[ ] herself 

together” before leaving the room. 

On September 4, USC sent a letter to John stating, “A report has been received in 

this office that you allegedly have violated the University Student Conduct Code.” It 

included the date of the incident, and the location as an off-campus fraternity event. The 

letter set out eleven different sections of the Student Conduct Code that John allegedly 

violated:

Section 11.32: “Conducting oneself in a manner that endangers the health or 

safety of oneself, other members or visitors within the university community or at 

university sponsored or related events.”

Section 11.36A: “Causing physical harm to any person in the university 

community or at university-sponsored activities.”

Section 11.36B: “Causing reasonable apprehension of harm to any person in the 

university community or at university-sponsored activities.”
8

Section 11.38: “Behavior which disrupts or interferes with normal university or 

university-sponsored activities . . . .”

Section 11.40: “Unauthorized use, possession or dissemination of alcohol in the 

university community or at university-sponsored activities.”

Section 11.44A: “Engaging in disruptive or disorderly conduct in the university 

community or at university-sponsored activities.”

Section 11.44B: “Engaging in a [sic] lewd, indecent or obscene behavior in the 

university community or at university-sponsored activities.”

Section 11.44C: “Encouraging or permitting others to engage in misconduct 

prohibited within the university community. Failing to confront and prevent the 

misconduct, notify an appropriate university official of the misconduct, or remove 

oneself from the situation.”

Section 11.53A: “Engaging in non-consensual sexual conduct or lewd, indecent, 

or obscene behavior which is sexual in nature, within the university community or at 

university-sponsored activities.”

Section 11.53B: “Non-consensual actual or attempted intercourse, sexual 

touching, fondling and/or groping.”

Section 11.53C: “A sexual assault is classified as rape when vaginal, anal, or oral 

penetration takes place without the consent of the person penetrated.” 

The September 4 letter included no factual information about the incident that led 

to the alleged violations. The only hint that the accusation involved John‟s contact with 

Jane is that the letter instructed John to refrain from contacting or communicating with 

Jane. The letter also stated, “If you wish to inspect the report cited in this letter, you must 

make a written request to do so 24 hours in advance of the day you wish to review the 

report.” It went on to say, “A summary of the procedures for this process is enclosed.” 

No summary of procedures is included with the letter in the record on appeal. 

On September 5, Blunt Coleman signed a single-page form titled “Report of 

Alleged Violations to the USC Student Conduct Code.” It stated that the named student 
9

(John) was aware of the report. It included Jane‟s name as the “individual affected,” but 

contained no information about the nature of the alleged violations. 

On September 6, SJACS interviewers met with “B,” one of Jane‟s friends who 

attended the party. B reported that she and other friends were in the hallway of the house 

when she saw Jane in a bedroom with multiple men. They asked if she was okay, Jane 

said she was fine, and someone closed the bedroom door. The friends later witnessed 

Jane emerge from the bedroom upset. Jane told B that at least one person other than John 

had sex with her. On September 10, SJACS interviewers met with “S,” another of Jane‟s 

friends who attended the party. S saw Jane go into the bedroom with John and “2-3 other 

guys.” The interview notes state, “[Jane] told [S], „I‟m OK‟ and told them to go, so they 

left.” S did not witness Jane emerge from the room, but later witnessed Jane crying on a 

couch in the hallway. Jane never told S what happened. 

On September 16, Turner of SJACS interviewed Jane a second time. Blunt 

Coleman was present, and is identified as Jane‟s advocate. The facts Jane relayed were 

largely consistent with her first interview. The interview notes say that after John asked 

if she was crying, “[t]he men stopped immediately, they dressed and they all left.” Jane 

reiterated that her memory of the night was “spotty” as a result of her intoxication. Jane 

also said the alcohol affected her judgment; had she been sober, she would not have 

“gone in a room with a bunch of guys.” Again, Jane mentioned nothing about being 

slapped. 

On September 17, SJACS interviewers met with John for the first time. The 

interview notes state that “RTR[

6

] explained the Student Conduct Code Review Process, 

confirmed student‟s receipt of written notice of allegations, SJACS hearing officers [sic] 

role as non-biased third party to review information, standard of proof used to decide 

cases. . . . RTR explained the rights of both parties to submit and review information I 

[sic] the case. . . . RTR explained that both parties have a right to inspect records with 24 

hour notice. . . . RTR discussed students‟ right to have an advisor, access to informatiou 

 

6

It appears from the record that this may be Raquel Torres-Retana, who signed the 

September 4 letter to John setting out the sections of the Student Conduct Code at issue.
10

[sic], the standard of proof to decide the case, sanctions, appeals, and discussed 

admonition re retaliation and harassment.” 

When discussing the incident, John emphasized that all of his contact with Jane 

was consensual. This interview contains the first mention of anyone slapping Jane on the 

buttocks. John told interviewers that during the second sexual encounter, Student 1 

slapped Jane‟s buttocks hard. The slap was “[h]ard, not cool by the sound.” Then 

Student 2, who was not initially in the room but entered after the sexual activity began, 

slapped Jane‟s buttocks hard a second time. John said, “It happened so fast I couldn‟t 

stop them.” John emphasized, “By no means did I put hands on her like that or have 

unconsensual conduct with her.” At one point in the interview John indicated that he got 

dressed quickly after the slaps occurred; he said at another point that he was already 

getting dressed when the slaps occurred. He stated, “I didn‟t leave her there (with the 

guys). She was alert. Not passed out. I made sure those two guys left” before he left the 

room. The notes also state, “I got dressed. I had them leave. They said, Are you 

kidding? [John] had them leave then he left the room.” When asked if he checked on 

Jane afterward, John responded, “I watched her pull her dress down and walked out. I 

should have checked on her at the time. I didn‟t know she was upset about it.”

The same day, interviewers met with “Y,” another of Jane‟s friends who attended 

the party. Y witnessed Jane emerge from the bedroom crying. The interview notes state, 

“[Jane] told them that while she was in there she only thought she was going to give 

[John] a blow job. Then other guys came up behind her. She didn‟t know how many 

people she had sex with.” Y was also with Jane when John approached her after the party 

and apologized for the other students‟ behavior. 

On October 1, interviewers met with the man the parties refer to as “Witness 6,” 

John‟s friend who also attended the party. Witness 6 saw John and Jane dancing 

together, and then noticed that John disappeared. Witness 6 reported that when John 

returned, he told Witness 6 that he had sex with the girl he danced with (Jane) and that 

she was still in the room with Student 1 and Student 2. According to Witness 6, John 

said that they were attempting to engage in a “threesome,” but they were drunk and 
11

started smacking Jane‟s butt so John left. Witness 6 said Jane later “started trying to 

dance with me like she was dancing with [John], bending over. [John] gave [Witness 6] 

a „no‟ sign (drawing his finger across his throat). Not going to dance with her.” Witness 

6 walked away to join his friends. He also saw John approach Jane after the students 

returned to campus. 

Also on October 1, interviewers met with Jane for a third time. The interview 

notes state that the purpose of the meeting was to determine “which of [John‟s] behaviors 

[Jane] was ok with and those which made her feel uncomfortable; which were consensual 

and which were not consensual.” Jane confirmed that the first sexual encounter with 

John and Student 1 was consensual in its entirety. She said that during the second 

encounter she was aware other people were in the room with her and John. The notes 

state that “someone got rough and [Jane] thought she would cry.” Then Jane mentioned 

for the first time that someone “slappe[d] her on the butt, hard.”7She said that there were 

at least two slaps. The interview notes state, “Fair to say you don‟t know who slapped 

you? [Jane]: [Jane] affirmed that she doesn‟t actually know who slapped her.” When the 

interviewer asked Jane if the men had intercourse with her or just digitally penetrated her, 

Jane stated, “Pretty sure it was both but the digital (penetration) set me off.” (Parentheses 

in interview notes.) Jane confirmed that all contact “stopped instantly” when John 

observed that she was crying. She said again that her memory of the night was “patchy” 

from intoxication. She stated that she did not know if all the men left the room together 

because she went into the bathroom, which differed slightly from her earlier statement

that after the men left, she crawled off the bed and then went to the bathroom. 

On October 3, interviewers met with John a second time to “try to fill in gaps now 

that information has been gathered from other witnesses.” In the meeting notes, there is 

no indication that they discussed the investigation procedure or John‟s rights again. The 

notes show that interviewers asked, “Part of what she‟s saying is one or more people had 

rough sex with her that she didn‟t consent to the second time. Looking into if you had 

 

7 Due to the nature of the interview notes, it is not clear whether interviewers 

asked Jane about this or whether Jane offered this information. 
12

any role in that by encouraging it. [John] stated that he did not (and shook his head in the 

negative). [¶] [Interviewer]: We are not so much interested in the first incident, but 

whether the second incident could be considered a gang rape. We are looking into this to 

see if she was or was not in a position to consent” due to her intoxication. John said that 

Jane did not seem excessively intoxicated. 

John said Jane was the one who suggested the second encounter in the bedroom 

with him and Student 1. He also stated that besides the three of them, no one else was in 

the bedroom except for a man who was passed out on a couch. He said Student 2 entered 

the room while the three were engaged in sexual activity, and the two slaps occurred 

shortly thereafter. John did not remember any conversation between the men during the 

incident. John “scooted back to remove himself (after the first slap). (The second slap 

came quickly thereafter.)” After the second slap, John “pulled away, pulled his leg 

around,” Jane “pulled her dress back down” and the men walked out. Within an hour 

they took a bus back to school, and John apologized for the other students‟ behavior once 

they had returned. 

On October 4 interviewers met with “C,” another friend of John‟s who also

attended the party. Student 1 and Student 2 were his friends from high school. C said he 

witnessed John, Jane, and Student 1 dance together before disappearing down the hallway 

together. He said he saw John, Student 1, and Student 2 emerge from the bedroom 

together. 

On October 22 interviewers met with Jane a fourth time. Blunt Coleman also 

attended as Jane‟s advocate. The interview notes state, “[Turner] asked [Jane] if she has 

received all the statements she sent to her. [Jane] replied that she had.” The interviewers 

also stated that notes for the most recent interviews needed to be sent to Jane, and they 

showed Jane notes from other recent witnesses interviews during Jane‟s interview. 

Jane reiterated at several points in this interview that she was “drunk” while she 

and John were interacting. Jane said the men‟s comments started when the other men 

began touching her; she did not know when John started making comments.

Investigators asked, “Did [John] or anyone tell anyone to do something to you? Were 
13

there any directive comments?” Jane replied, “I don‟t think so.” Later investigators

asked, “Did anyone tell them to hit you?” Jane replied, “No.” The interview notes state, 

“[Turner] said I know it is hard, but can you tell me what [John] was saying?” [Jane] 

replied, “How do you like that?” [Turner] asked if John was saying that. [Jane] said, 

„They were all saying it. Like, “Look at her! Oh my god!” When asked when John 

started saying these things, Jane replied that she did not know. She also said, “They 

would say how do you like that? whenever anything was being done—fingering me 

violently and hitting me.” She added, “[T]hey were all kind of feeding off each other.” 

Later in the interview when asked specifically what John said, Jane replied that he made 

“[c]omments about my body.” Jane also said that during the first encounter John and 

Student 1 made “comments to each other about my body” that she did not find offensive. 

Jane thought the abusive conduct with commentary lasted about a minute or two 

before she began crying. Within this time frame, she was slapped “[t]owards the middle 

and then the end. There were at least three hits,” which contrasted with her earlier 

statement that there were at least two hits (and her first two interviews, which did not 

mention any slaps). She also said, “[T]hree hits. I don‟t know how many comments.” 

Although she said in her third interview that she did not know who slapped her, in her 

fourth interview Jane said Student 1 was the first person who slapped her. An 

investigator asked Jane how much time passed between slaps. Jane replied that she did 

not know. When pressed for more information, Jane replied that perhaps ten seconds 

passed between slaps. 

On October 24, SJACS representatives met with Y again, and on October 25, they 

met with B again. Neither added significant facts to her earlier accounts.

C. Results of the SJACS investigation 

SJACS completed its investigation on October 29, 2013 and generated a

“Summary Administrative Review” (SJACS report). The SJACS report notes that the 

investigation and report were completed by Turner and the other administrators who 

conducted the interviews. The report concluded that John violated nine different sections 

of the USC Student Conduct Code—all of the sections cited in the September 4 letter, 
14

except sections 11.38 (disruption of “normal university or university-sponsored 

activities”) and 11.40 (“Unauthorized use, possession or dissemination of alcohol”).

In explaining its findings, two pages of the report criticize John‟s recollection of 

the story as “contradicted not only by credible information as provided by other 

witnesses, including [John‟s] own friends who attended the party, but also by [John‟s] 

own statements when asked to provide further detail.” Despite Jane‟s repeated 

characterization of her memory as patchy and spotty as a result of her intoxication, the 

report summarily stated that “[Jane] was found to be a credible witness on the most 

important contested points.” The report concluded, “[O]n the second sexual encounter, 

[Jane] did not consent to sexual intercourse, oral sex, assault, or any form of vaginal 

penetration with anyone other than [John.]” It found that John “had control over the 

number of individuals in the room” and therefore “he was the one who allowed men, 

other than himself, to remain in the room, unbeknownst to [Jane].” The report went on to 

say, “Given [Jane‟s] credibility and [John‟s] lack of credibility (and distortions of the 

facts), we find more credible than not [Jane‟s] assertion that [John] encouraged the other 

men to assault and penetrate [Jane].” Despite Jane‟s clear affirmation that the first group 

sexual encounter was consensual, with respect to the second encounter, the report stated,

“SJACS does not find it credible that [Jane] consented to sex with two or more men . . . .” 

The report concluded, “[John] actively participated, in concert with [Student 1], 

[Student 2], and the other men who touched or sexually penetrated [Jane], in the sexual 

assault of [Jane] by allowing and encouraging the group assault. Through his actions and 

comments, [John] encouraged and assisted in the sexual assault that [Jane] suffered. 

[John] thereby violated the above listed sections of the Student Conduct Code.” The 

SJACS report does not connect any of John‟s actions to specific Student Conduct Code 

sections.

John was suspended for more than two years, effective immediately. During that 

time, he would not be allowed to complete any work toward a USC degree. Once the 

suspension period was complete, he would be required to demonstrate his “preparedness” 

to re-enroll to the Associate Vice Provost of Student Affairs; otherwise he would not be 
15

allowed to re-enroll.8If he were to re-enroll, he would automatically be placed on 

“deferred expulsion,” so that if he was “responsible for any further violation of the 

Student Conduct Code” he would be subject to immediate expulsion. The report stated 

that sanctions against John were imposed “to educate [John] and further his personal 

development” and to “protect the University community.” 

John was informed of the SJACS decision in a long letter that reiterated SJCAS‟s 

findings. The letter stated, “[John] actively participated, in concert with [Student 1], 

[Student 2] and the other men who touched or sexually penetrated [Jane], in the sexual 

assault of [Jane] by allowing and encouraging the assault. Through his actions and 

comments, [John] encouraged and assisted in the sexual assault that [Jane] suffered.” 

The letter imposed the same penalties as the SJACS report, with an added requirement 

that John “must provide proof of counseling regarding the issues raised by the January 

26, 2013 incident including alcohol use/abuse. Verification of counseling from a licensed 

therapist or counselor” was required to be submitted to the school prior to re-enrollment. 

The letter provided John with information about how to appeal the decision.

D. John’s appeal

John retained counsel and appealed to USC‟s Student Behavior Appeals Panel.

He pointed out in his appeal letter that despite minor discrepancies in the various 

accounts of the evening, the major facts were not in dispute: Jane engaged in consensual 

sexual activity with John and Student 1 at least once; Jane and John engaged in 

consensual sexual activity twice; Student 1 and Student 2 exceeded the scope of Jane‟s 

consent by slapping her; and John terminated the second sexual encounter immediately 

upon discovering that Jane was upset. The letter highlighted numerous inconsistencies in 

the evidence, argued that there was bias in the investigation (such as providing Jane, but 

not John, with all witness statements, and meeting with Jane, but not John, multiple times 

to “clarify” inconsistencies), and objected that SJACS credited Jane‟s version of events,

even when contradicted by multiple other witnesses. John also argued that the 

 

8

There is no indication in the record of what a demonstration of preparedness 

would entail.
16

investigative process was unfair because there was no evidentiary hearing, and the onus 

was put on John to prove his innocence rather than the other way around. 

No response to John‟s appeal letter from SJACS or any other USC administrative 

body appears in the record. Jane submitted a letter detailing the difficulties she had 

experienced after the incident, which she characterized as a rape. She also stated that she 

is uncomfortable on campus knowing that John was still there, and concluded, “I do not 

believe that the University is enforcing its Title IX responsibilities for responding 

effectively and immediately to reports of sexual harassment, or quelling what is currently 

a hostile environment. I expect that the University will hold [sic] its original decision for 

my case in order to ensure my safety, comfort, and peace on this campus.” 

The Appeals Panel issued its decision in March 2014. The Appeals Panel opined 

that the procedural process was fair and that an evidentiary hearing was not required. 

The written decision stated, “[T]he questions presented for this panel‟s review are 

whether the investigator failed to follow university rules while reviewing the cited 

behavior and whether the sanction imposed is excessive or inappropriate. Our decision is 

subject to review and approval by the Vice Provost, Student Affairs, and once approved 

is a final decision without further appeal.” Because John argued in his appeal letter that 

the investigation was biased, the Appeals Panel “examined particularly carefully whether 

the evidence supports each finding and whether the findings support the conclusion as to 

each of the specific violations cited.” 

The Appeals Panel disagreed with SJACS on several important points. The 

Appeals Panel held that the second sexual encounter could not support a finding that John 

encouraged or participated in a sexual assault. The panel noted that John, Jane, and 

Student 1 engaged in consensual group sex once, and that the second interaction

“involved sexual behavior with the same two people in the same place only 45 minutes 

apart. Thus it was reasonable for the accused to believe that the complainant‟s consent 

for sexual activity with [Student 1] was ongoing from the first encounter until the 

complainant signaled otherwise by word or deed.” The Appeals Panel found, however, 

that there was no “reasonable basis for the accused to believe the complainant consented 
17

to being struck by anyone.” The Appeals Panel therefore found that Student 1 and 

Student 2 improperly slapped Jane, John encouraged or permitted the slaps, and John 

endangered Jane by leaving the bedroom while Jane was still in the bedroom with 

Student 1 and Student 2. 

The Appeals Panel overturned the SJACS decision with respect to seven of the 

nine Student Conduct Code sections John was accused of violating, but held that John 

violated two sections of the Student Conduct Code. First, the Appeals Panel held that 

John violated Student Conduct Code section 11.44C, which prohibits, in part, 

“[e]ncouraging or permitting others to engage in misconduct prohibited within the 

university community.” Quoting Jane‟s statements from both her first and third 

interviews, the Appeals Panel held that John violated section 11.44C because when 

Student 1 and Student 2 slapped Jane, “at each blow one of the men including the 

accused made taunting and aggressive comments about what she was experiencing.” As 

a result, the Appeals Panel concluded, “[T]he accused permitted the assault.” The 

Appeals Panel also held that John failed to comply with the second phrase of section 

11.44C, “[F]ailing to confront and prevent the misconduct, notify an appropriate 

university official of the misconduct, or remove [one]self from the situation.” 

Second, the Appeals Panel found that John violated Student Conduct Code section 

11.32, which prohibits “[c]onducting oneself in a manner that endangers the health or 

safety of other members. . .within the university community.” The Appeals Panel 

credited Witness 6‟s statement, holding that SJACS “reasonably read the evidence as 

showing it was more likely than not that the accused exited the room before [Student 1 

and Student 2], leaving the complainant in the room with the two men.” As a result, “the 

accused abandoned the complainant by leaving the room before the two men who had 

accosted her, and thus endangered her safety.” 

The Appeals Panel reduced John‟s suspension from two years to one year. It 

upheld the remaining restrictions and conditions.
18

E. Writ proceedings in the trial court

John challenged the Appeals Panel‟s decision in a petition for writ of mandate 

under Code of Civil Procedure, section 1094.5 filed in the superior court.9 He applied ex 

parte for a stay of the Appeals Panel‟s decision. The trial court denied the initial request 

and a renewed request days later, stating that there was an insufficient factual showing of 

irreparable harm. 

In his writ petition, John argued that the investigation and hearing process were

unfair in that he was deprived of an adversarial proceeding in which he could challenge 

the evidence presented against him. He also argued that he was not provided with 

adequate notice, because the Appeals Panel‟s rationale for the violations of the Student 

Conduct Code was based on an entirely different theory than the one pursued by SJACS. 

John also argued that the Appeals Panel‟s decision that he violated two sections of the 

Student Conduct Code was not supported by substantial evidence. USC opposed the 

petition, arguing that the procedure was fair, and that substantial evidence supported the 

Appeals Panel‟s decision.

The trial court held that USC‟s procedure was fair because John had the 

opportunity to tell his side of the story in his two interviews, and he had the right to 

request any materials collected in the investigation. The court also held that John‟s 

“argument that he was denied fair notice of the issues being considered at the hearing is a 

non-starter. While he claims that he was not informed of the charges against him until 

the Appeal Panel rendered its decision, the record clearly shows that he was informed of 

all the charges against him from the outset. SJACS sent Petitioner a letter on September 

4, 2013, that quoted each of the alleged violations, including the two he was eventually 

found guilty of, and stated the investigation was in connection with Jane Doe.” In 

 

9

“The remedy of administrative mandamus . . . applies to private organizations 

that provide for a formal evidentiary hearing.” (Gupta v. Stanford University (2004) 124 

Cal.App.4th 407, 411; see also Pomona College v. Superior Court (1996) 45 Cal.App.4th 

1716, 1722-1723.)
19

addition, “The Appeals Board [sic] decision did apply the code provisions to the facts in a 

systematic and thorough manner.” 

The trial court also held that substantial evidence supported the Appeals Panel‟s 

determination that John violated section 11.44C. Noting that John and other men were 

“encouraging each other,” the court said, “[O]nly when Jane started crying did Petitioner 

make a ridiculing (or incredulous) comment „is she crying?‟, and stop the encounter.” 

The court went on to say, “The argument that everything was consensual does not 

automatically provide immunity. . . . [¶] Petitioner allowed Jane Doe to be sexually 

abused in the primal sense. She chose to be with him albeit in a drunken state. That he 

invited another so called drunken man to also engage in sex with her in a drunken state is 

a phenomenon that the word „consensual‟ does not apply to in a civilized society. [¶] 

Given her condition, what would a civilized, rational person do? [¶] He would protect 

her.” The court concluded, “The Appeals Board [sic] was justified in finding that 

Petitioner violated this section by not taking some affirmative step to prevent the 

misconduct that his acquaintances were committing right in front of him.” 

However, the trial court held that substantial evidence did not support the Appeals 

Panel‟s decision that John violated section 11.32. The court noted that both Jane and 

John stated that the men left together, and held that the Appeals Panel erred by relying on 

the less-reliable testimony of Witness 6. The court therefore granted John‟s petition with 

respect to the violation of section 11.32, and denied the remainder of the petition. 

John timely appealed and USC cross-appealed. 

STANDARD OF REVIEW

The scope of our review from a judgment on a petition for writ of mandate is the 

same as that of the trial court. (California Department of Corrections and Rehabilitation 

v. California State Personnel Board (2015) 238 Cal.App.4th 710, 716.) “An appellate 

court in a case not involving a fundamental vested right reviews the agency‟s decision, 

rather than the trial court‟s decision, applying the same standard of review applicable in 

the trial court.” (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261.)
20

With respect to a petition for writ of mandate, we determine “whether the 

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

findings, or the findings are not supported by the evidence.” (Ibid.)

We 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.” 

(Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.) “The statute‟s 

requirement of a „fair trial‟ means that there must have been „a fair administrative 

hearing.‟” (Gonzalez v. Santa Clara County Department of Social Services (2014) 223 

Cal.App.4th 72, 96; Pomona College v. Superior Court, supra, 45 Cal.App.4th at p.

1730.) Where student discipline is at issue, the university must comply with its own 

policies and procedures. (Berman v. Regents of University of California (2014) 229 

Cal.App.4th 1265, 1271.) 

We review the Appeals Panel‟s substantive decision for substantial evidence. 

(Code Civ. Proc., § 1094.5, subd. (c) [“abuse of discretion is established if the court 

determines that the findings are not supported by substantial evidence in the light of the 

whole record.”].)

DISCUSSION

A. Fair hearing

John argues that he was not provided sufficient notice of the charges that were 

ultimately imposed, because the Appeals Panel relied on an entirely different theory to 

justify sanctions against John compared to that relied upon by SJACS. He also argues 

that he was not afforded a fair hearing at any stage of the proceedings, because he did not 

have “an opportunity to test and rebut the evidence against him.” John also contends he 

should have been allowed to cross-examine witnesses or otherwise test the credibility, 

knowledge, and recollection of the witnesses against him. 
21

Section 17.03 of the Student Guidebook states that one of the “procedural 

protections” granted to accused students is “[w]ritten notice of the incident report that 

specifies the nature of the alleged violation and the basis for the charge including the date 

and period of time and location of the alleged incident.” USC provided John notice of 

the code sections he allegedly violated, but it did not provide any information at any stage

about what activity ultimately would form the basis for those violations and related 

penalties. There was also no hearing, as that term is commonly understood. Instead, 

SJACS did its investigation by interviewing witnesses and writing its report 

recommending penalties, which John appealed to the Appeals Board.

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.” (Bergeron v. Department of Health Services (1999) 71 Cal.App.4th 17, 24; 

see also Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1445 [“Notice of the 

charges sufficient to provide a reasonable opportunity to respond is basic to the 

constitutional right to due process and the common law right to a fair procedure.”].)

With respect to student discipline, “[t]he student‟s interest is to avoid unfair or mistaken 

exclusion from the educational process, with all of its unfortunate consequences. . . . 

Disciplinarians, although proceeding in utmost good faith, frequently act on the reports 

and advice of others; and the controlling facts and the nature of the conduct under 

challenge are often disputed. The risk of error is not at all trivial, and it should be 

guarded against if that may be done without prohibitive cost or interference with the 

educational process.” (Goss v. Lopez (1975) 419 U.S. 565, 579-580 (Goss).)

“At the very minimum, therefore, students facing suspension . . . must be given 

some kind of notice and afforded some kind of hearing.” (Goss, supra, 419 U.S. at p. 

579.) 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.” (Id. at p. 582.)

Here, both the notice and the hearing were insufficient. 
22

1. Notice

In the initial letter from SJACS, John was not apprised of the factual basis of the 

accusations against him; he was given only a list of code sections, a date, and Jane‟s 

name. After its investigation, SJACS found that sanctions were warranted because John 

participated in a group sexual assault. The Appeals Panel, on the other hand, found that 

sanctions for sexual assault could not be supported on the record. Instead, the Appeals 

Panel found that John violated section 11.44C because John encouraged or permitted the 

other students to slap Jane. John was never provided notice or an opportunity to respond 

to the theory that his actions in relationship to the other students‟ slaps, separated from 

the remaining activity, could result in his suspension. The Appeals Panel also found that 

John violated section 11.32 because he endangered Jane when he left the bedroom. The 

factual basis for this finding is troubling, because the SJACS report does not even suggest 

that Jane was in danger when John left the room, or that John endangered Jane by his 

actions after the group activity ceased. Because John had no notice that such allegations

were at issue, he had no opportunity to defend himself. 

Moreover, in the only times when John did have an opportunity to explain his 

actions—during the SJACS interviews—the SJACS investigators led John to believe that 

the only issue was whether sexual contact with Jane was consensual. They did not 

inform him that they were investigating whether John encouraged the other students‟ 

slaps or if Jane was in danger after John left the room. The notes for John‟s second 

interview state, “[Interviewer]: Part of what she‟s saying is one or more people had 

rough sex with her that she didn‟t consent to the second time. Looking into if you had 

any role in that by encouraging it. [John] stated that he did not (and shook his head in the 

negative). [¶] [Interviewer]: We are not so much interested in the first incident, but 

whether the second incident could be considered a gang rape. We are looking into this to 

see if she was or was not in a position to consent” due to her intoxication. John also 

stated at this interview, “The only thing I‟m upset about . . . the only thing I did with her 

was completely consensual. I feel I was completely respectful. I was so shocked that my 

name came up.” The investigator‟s statements, John‟s comments, and John‟s emphasis 
23

on Jane‟s consent through both interviews indicate that the investigation focused on 

whether John‟s and Student 1‟s sexual contact with Jane was consensual. There is no 

indication from either John or the investigators in any of the interviews that John was 

informed that he could be penalized based on other students slapping Jane, or because of 

the manner in which John left the bedroom afterward.

In support of his argument that notice was lacking, John cites In re Ruffalo (1968) 

390 U.S. 544, in which an Ohio attorney challenged a decision disbarring him for 

misconduct. The Ohio Board of Commissioners on Grievances and Discipline originally 

charged the attorney with twelve counts of misconduct. After the attorney and a witness 

testified at a hearing about the alleged misconduct, the board added another charge based 

on the attorney‟s testimony; the additional charge eventually served as the basis for the 

attorney‟s disbarment. The Supreme Court held that the process deprived the attorney of 

due process: “These are adversary proceedings of a quasi-criminal nature. [Citation.] 

The charge must be known before the proceedings commence. They become a trap 

when, after they are underway, the charges are amended on the basis of testimony of the 

accused. He can then be given no opportunity to expunge the earlier statements and start 

afresh. [¶] . . . [¶] This absence of fair notice as to the reach of the grievance procedure 

and the precise nature of the charges deprived petitioner of procedural due process.” (In 

re Ruffalo, 390 U.S. at pp. 551-552.)

USC is correct that In re Ruffalo is distinguishable because the attorney there did 

not have notice of the additional charge or its basis at the outset of the case, and here 

John knew which Student Conduct Code sections were at issue. However, the 

comparison to In re Ruffalo is apt in that a disciplinary penalty based on testimony given 

while defending against a different charge smacks of unfairness. The comparison is 

especially compelling here in that Jane never mentioned the slaps in her first two 

interviews. Therefore, the slaps clearly did not serve as the basis for Jane‟s complaint to 

SJACS, nor could they have been the basis of the SJACS letter accusing John of violating 

the Student Conduct Code—yet the slaps ultimately provided the basis for John‟s 

suspension. In addition, the Appeals Panel used statements from Jane‟s first interview—
24

before anyone ever mentioned slaps—to support their finding that John encouraged the 

slaps. 

Moreover, the attorney in In re Ruffalo was afforded a continuance to address the 

new allegation, and the Supreme Court found the process to be unfair nonetheless. Here, 

John was not afforded any opportunity to address the Appeals Panel‟s new theory. No 

further investigation was done once the Appeals Panel rendered its decision, John was not 

provided any opportunity to be heard on the specific allegations that he permitted the 

slaps or that he endangered Jane by leaving the bedroom, and the order suspending him 

from school was effective immediately. This process does not pass muster under In re 

Ruffalo.

John also cites Wheeler v. State Bd. of Forestry (1983) 144 Cal.App.3d 522 

(Wheeler), where a professional forester‟s license was revoked after the State Board of 

Forestry found him guilty of “gross incompetence” under Public Resources Code section 

778, subdivision (b). The forester was not initially charged with gross incompetence, 

however; “rather, the error was charged as a „deceit, misrepresentation, or fraud in his 

practice,‟ separate grounds of discipline under Public Resources Code section 778, 

subdivision (b), and on these charges Wheeler was exonerated.” (Id. at p. 526.) The 

court, applying Administrative Procedure Act (APA)10 guidelines, held that the 

uncharged allegation could not be sustained: “An accusation is required to initiate the 

proceeding and must specify „the statutes and rules which the respondent is alleged to 

have violated . . . .‟ (Gov. Code, § 11503.) The fulfillment of this requirement is a 

statutory predicate for disciplinary action. It follows that the finding must be based upon 

the accusation. Here it was not. Disciplinary action cannot be founded upon a charge not 

made.” (Wheeler, supra, 144 Cal.App.3d at p. 527.) The court also held that the 

standardless term “gross incompetence” could not support the revocation of the forester‟s 

license: “[T]he APA requires, as a predicate to disciplinary action, that the accusation 

specify „the statutes and rules which the respondent is alleged to have violated.‟ (Gov. 

 

10 Gov. Code, § 11501; Pub. Resources Code, § 776.
25

Code, § 11503.) This provides a constitutionally required notice to the accused of the 

standards by which his conduct is to be measured. [Citations.] It permits discipline to be 

imposed only for violation of an ascertainable standard of conduct.” (Wheeler, supra, 

144 Cal.App.3d at p. 527.)

Wheeler also indicates that the procedures here were insufficient. Although John 

was provided notice of the Student Conduct Code sections he allegedly violated, USC 

began its investigation by pursuing one theory of discipline (sexual assault), but imposed 

discipline based on a wholly different theory (encouraging or permitting battery and 

endangering a student by abandonment). USC argues that unlike the “gross 

incompetence” in Wheeler, “encouraging or permitting others to engage in misconduct” 

is not standardless. In the context of the case before us, we disagree. That SJACS and 

the Appeals Panel could interpret the term to censure multiple facets of John‟s conduct 

shows that the standards were extremely malleable. We recognize that universities need 

adequate tools to address the very serious and sensitive problem of sexual assault on 

campus. But it is not too heavy a burden to require that students facing disciplinary 

action be informed of the factual basis for the charges against them. A charge of 

“encouraging or permitting others to engage in misconduct” that can penalize completely 

different behavior based on the decision-maker (SJACS versus the Appeals Panel), 

without notice to the student, is indeed as standardless as the undefined “gross 

incompetence” in Wheeler. 

Because John was not informed of the factual basis of the allegations at the outset, 

SJACS told John that they were investigating his involvement in a sexual assault, and the 

sanction John appealed was based primarily on a finding of sexual assault, John was 

never afforded notice or a meaningful opportunity to address whether he “encouraged or 

permitted” the slaps, or whether his departure from the bedroom endangered Jane. If 

notice is to be meaningful, it must include information about the basis of the

accusation—not just a list of Student Conduct Code sections that can be interpreted to 

encompass any activity SJACS or the Appeals Panel finds to be inappropriate. Because 

John was sanctioned based on activities that he was never informed might be the cause 
26

for sanctions, John was not provided with sufficient notice required of a fair hearing 

under Code of Civil Procedure, section 1094.5, subdivision (b). 

2. Lack of a hearing

The lack of a hearing that would have allowed John to respond to the evidence 

presented against him compounded the problems arising from the lack of sufficient 

notice. The notes from Jane‟s fourth interview make clear that Jane had been provided 

copies of SJACS‟s notes relating to every witness, including those who had very little

relevant knowledge. John, on the other hand, did not receive any information regarding

the other witnesses‟ testimony. USC argues that John did not have that information 

because he “did not avail himself of the right to inspect records until after he filed his 

administrative appeal.” In addition, USC argues that the SJACS investigation, decision, 

and Appeals Panel process constituted a sufficiently fair hearing: “The accused also has 

the right to know the charges against him, to see the evidence against him, upon request, 

and to respond fully to the charges, both orally and in writing. The accused also has the 

right to appeal the initial findings to a three-member panel. This is a hearing.” 

Under the circumstances of this case, we disagree that this hearing meets the fair 

hearing requirements of Code of Civil Procedure, section 1094.5, subdivision (b). As 

noted above, John was not informed about the factual basis for the charges for which he 

was ultimately sanctioned. He therefore never had a sufficient hearing affording him the 

opportunity to respond fully to those charges.

We recognize that “the pure adversary model is not entitled to constitutionally 

enshrined exclusivity as the means for resolving disputes in „[t]he incredible variety of 

administrative mechanisms [utilized] in this country. . . .‟” (Howitt v. Superior Court

(1992) 3 Cal.App.4th 1575, 1581, quoting Withrow v. Larkin (1975) 421 U.S. 35, 52.) 

Rather, “[s]pecific requirements for procedural due process vary depending upon the 

situation under consideration and the interests involved.” (Applebaum v. Board of 

Directors (1980) 104 Cal.App.3d 648, 657.) 

For example, “[a]lthough we recognize the value of cross-examination as a means 

of uncovering the truth [citation], we reject the notion that as a matter of law every 
27

administrative appeal . . . must afford the [accused] an opportunity to confront and crossexamine witnesses.” (James v. City of Coronado (2003) 106 Cal.App.4th 905, 912 

[discussing disciplinary actions involving police officers under Gov. Code § 3304, subd. 

(b)].) 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. The United States Department of Education Office for Civil Rights 

(OCR) addressed this issue in its April 4, 2011 “Dear Colleague” letter, intended as a 

guidance document regarding sexual violence on college campuses.11 It stated, “OCR 

strongly discourages schools from allowing the parties personally to question or crossexamine each other during the hearing. Allowing an alleged perpetrator to question an 

alleged victim directly may be traumatic or intimidating, thereby possibly escalating or 

perpetuating a hostile environment.”12 (OCR Dear Colleague letter, p. 12.) 

There are few cases defining fair hearing standards for student discipline at private 

universities.13 Cases involving procedural due process requirements under similar 

circumstances, however, may be instructive. (See BreakZone Billiards v. City of 

 

11 http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.

12 We note that there are alternate ways of providing accused students with the 

opportunity to hear the evidence being presented against them without subjecting alleged 

victims to direct cross-examination by the accused. (See, e.g., Doe v. University of the 

Pacific (E.D. Cal., Dec. 8, 2010, CIV. S-09-764) 2010 WL 5135360, at *4 [the accusing 

student‟s “testimony was not presented live to Respondent Students but instead was tape 

recorded and played for Respondent Students immediately following the completion of 

her testimony”]; Gomes v. University of Maine System (D. Me. 2005) 365 F.Supp.2d 6, 

27 [placing a screen between the accuser and the accused]; Columbia University, GenderBased Misconduct Policies for Students, August 2013, p. 15, available at 

http://ssgbsm.columbia.edu/files/gbsm/content/GenderBased_Misconduct_Policies_Students.pdf [providing that witnesses will provide 

testimony directly to the hearing panel while other parties view live testimony from a 

separate room via closed-circuit television].)

13 The hearing standards required for student discipline are not necessarily the 

same as those required for academic purposes. “[T]here are distinct differences between 

decisions to suspend or dismiss a student for disciplinary purposes and similar actions 

taken for academic reasons which may call for hearings in connection with the former but 

not the latter.” (Board of Curators of University of Missouri v. Horowitz (1978) 435 U.S. 

78, 87.)
28

Torrance (2000) 81 Cal.App.4th 1205, 1236, fn. 24.) As noted above, for example, Goss

held that in student disciplinary proceedings, due process requires “an „informal giveand-take‟ between the student and the administrative body dismissing him that would, at 

least, give the student „the opportunity to characterize his conduct and put it in what he 

deems the proper context.‟” (Horowitz, supra, 435 U.S. at p. 86, quoting Goss, 419 U.S. 

at p. 584.)

The parties reply in part on Dixon v. Alabama State Bd. of Ed. (5th Cir. 1961) 294 

F.2d 150, 159 (Dixon), which held that when a student is facing disciplinary sanctions, 

“the student should be given the names of the witnesses against him and an oral or 

written report on the facts to which each witness testifies. He should also be given the 

opportunity to present to the Board [of Education], or at least to an administrative official 

of the college, his own defense against the charges and to produce either oral testimony 

or written affidavits of witnesses in his behalf. If the hearing is not before the Board 

directly, the results and findings of the hearing should be presented in a report open to the 

student‟s inspection. If these rudimentary elements of fair play are followed in a case of 

misconduct of this particular type, we feel that the requirements of due process of law 

will have been fulfilled.” (See also Andersen v. Regents of University of California

(1972) 22 Cal.App.3d 763, 771 (Anderson) [“As said in Dixon, supra, the student is 

entitled to (1) a notice containing a statement of the specific charges against him, the 

names of the witnesses and a statement of the gist of their proposed testimony, and (2) a 

hearing the scope and nature of which should vary according to the circumstances of the 

particular case. The hearing need not be a full dress judicial hearing but one giving the 

student a full opportunity to present his defenses.”]; Goldberg v. Regents of University of 

Cal. (1967) 248 Cal.App.2d 867, 882 (Goldberg) [due process requirements were met 

where the student plaintiffs “received a proper advance notice of the hearing specifying 

the particular charges and suggesting that they might wish to obtain counsel,” and 

“[p]laintiffs were represented by counsel and given ample opportunity to hear and 

observe the witnesses against them and to present their own defense.”].)
29

USC argues the procedural protections required in Dixon were in place here

because John had access to information submitted by the other witnesses and an 

opportunity to respond to that evidence—had he requested it. But requiring John to

request access to the evidence against him does not comply with the requirements of a 

fair hearing. (See, e.g., Goss, supra, 419 U.S. at p. 582 [“in being given an opportunity 

to explain his version of the facts . . . the student [must] first be told what he is accused of 

doing and what the basis of the accusation is”]; Dixon, supra, 294 F.2d at p. 159 [“the 

student should be given the names of the witnesses against him and an oral or written 

report on the facts to which each witness testifies”]; Andersen, supra, 22 Cal.App.3d at 

p. 771 [“the student is entitled to . . . the names of the witnesses and a statement of the 

gist of their proposed testimony”]; Goldberg, supra, 248 Cal.App.2d at p. 882 [students 

should be “given ample opportunity to hear and observe the witnesses against them ”].)

Even where constitutional due process protections do not apply, common law 

requirements for a fair hearing under section 1094.5 do not allow an administrative board 

to rely on evidence that has never been revealed to the accused. For example, in Pinsker 

v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541 (Pinsker), an orthodontist, 

Pinsker, was rejected from a professional association. He argued that the association‟s

process for denying his membership did not afford him a fair hearing. The association 

argued, as USC does here, that they provided Pinsker a fair hearing by “conducting an 

investigation into Pinsker‟s case and by resting their rejection of this application on the 

information disclosed by that investigation.” (Id. at p. 555.) The Supreme Court rejected 

this argument: “Although the trial court apparently agreed with this contention, we 

conclude that the procedure followed in the instant case does not meet minimal common 

law standards.” (Ibid.) The Court said that although “[t]he common law requirement of 

a fair procedure does not compel formal proceedings with all the embellishments of a 

court trial,” private associations “retain the initial and primary responsibility for devising 

a method which provides an applicant adequate notice of the „charges‟ against him and 

reasonable opportunity to respond. In drafting such procedure, and determining, for 

example, whether an applicant is to be given an opportunity to respond in writing or by 
30

personal appearance, the organization should consider the nature of the tendered issue 

and should fashion its procedure to insure a fair opportunity for an applicant to present 

his position.” (Id. at pp. 555-556.) Pinsker, like John, was unaware that certain issues 

would be considered by the association, and therefore never had the opportunity to 

respond to those issues. The Court held, “Under these circumstances, we conclude that 

the procedure followed by the defendant association did not meet the minimum standards 

required under the common law.” (Id. at p. 556.) 

A similar procedure was also rejected by the Supreme Court in English v. City of 

Long Beach (1950) 35 Cal.2d 155. There, the civil service board was considering 

whether a police officer‟s physical limitations interfered with his ability to perform his 

duties. Before the required employment hearing, “[m]embers of the board took evidence 

outside the hearing and outside the presence of [the officer] or his attorney. Some of 

them talked to one of the examining doctors, and one member questioned his personal 

physician concerning the relation of [the officer‟s] asserted disability to the performance 

of the duties of his position.” (Id. at p. 157.) The officer was afforded a hearing, but the 

board members relied in part on the evidence they had gathered before the hearing in 

determining that the officer‟s employment should be terminated. On appeal, the Supreme 

Court held that the officer was denied a fair hearing. “The action of such an 

administrative board exercising adjudicatory functions when based upon information of 

which the parties were not apprised and which they had no opportunity to controvert 

amounts to a denial of a hearing. [Citations.] Administrative tribunals which are 

required to make a determination after a hearing cannot act upon their own information, 

and nothing can be considered as evidence that was not introduced at a hearing of which 

the parties had notice or at which they were present. [Citations.] . . . [T]he right of a 

hearing before an administrative tribunal would be meaningless if the tribunal were 

permitted to base its determination upon information received without the knowledge of 

the parties. A hearing requires that the party be apprised of the evidence against him so 

that he may have an opportunity to refute, test, and explain it, and the requirement of a 
31

hearing necessarily contemplates a decision in light of the evidence there introduced. 

[Citations.]” (Id. at pp. 158-159.) 

Here, SJACS relied on information never revealed to John, and the Appeals Panel 

suspended John on a different theory than SJACS. John was not provided any 

information about the factual basis of the charges against him, he was not allowed to 

access any evidence used to support those accusations unless he actively sought it 

through a written request, and he was not provided with any opportunity to appear 

directly before the decision-making panel to rebut the evidence presented against him. 

While a full trial-like proceeding with the right of cross-examination is not necessary for 

administrative proceedings, we cannot agree with USC that the process afforded to John 

met the standards of a fair hearing under section 1094.5.14

B. Substantial evidence

John argues that even if we find that the hearing was fair, the decision of the 

Appeals Panel should nonetheless be overturned because any finding that John violated 

section 11.44C was not supported by substantial evidence. USC argues in its crossappeal that the Appeals Panel‟s finding that John violated section 11.32 is supported by 

substantial evidence, and therefore that finding should be reinstated. 

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.]” 

(Perlman v. Shasta Joint Jr. College Dist. Bd. of Trustees (1970) 9 Cal.App.3d 873, 882.) 

“While it is commonly stated that our „power‟ begins and ends with a determination that 

there is substantial evidence [citation], this does not mean we must blindly seize any 

 

14 The SJACS report states that it was prepared by Turner and other interviewers, 

“with oversight by Jody Shipper, Title IX Coordinator.” Shipper also participated in one 

interview with Jane and one interview with John. OCR‟s Dear Colleague letter cautions 

that “serving as the Title IX coordinator and a disciplinary hearing board member . . . 

may create a conflict of interest.” (OCR Dear Colleague letter, p. 7.) Because the exact 

composition of SJACS is never explained in the record before us, it is unclear whether 

such a conflict occurred here.
32

evidence in support of the respondent 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 of 

ponderable legal significance. Obviously the word cannot be deemed synonymous with 

„any‟ evidence. It must be reasonable . . . , credible, and of solid value. . . .‟ [Citation.] 

The ultimate determination is whether a reasonable trier of fact could have found for the 

respondent based on the whole record. [Citation.]” (Kuhn v. Department of General 

Services (1994) 22 Cal.App.4th 1627, 1633 [emphasis in original].)

1. Section 11.44C

Section 11.44C prohibits “[e]ncouraging or permitting others to engage in 

misconduct prohibited within the university community. Failing to confront and prevent 

the misconduct, notify an appropriate university official of the misconduct, or remove 

oneself from the situation.” John argues that there is insufficient evidence to support the 

Appeals Panel‟s conclusion that John “encouraged” or “permitted” Student 1 or Student 2 

to slap Jane.

The Appeals Panel adopted a conclusion from the SJACS report stating that “each 

time a blow was delivered, one of the men, including [John], made taunting and 

aggressive comments about what she was experiencing.” USC quotes this statement no 

fewer than six times in its briefs in support of the argument that the Appeals Panel‟s 

decision was supported by substantial evidence. We find this characterization of events 

to be unsupported by the record. 

First, there are only two accounts of what occurred in the bedroom: John‟s and 

Jane‟s. John stated that two slaps occurred in quick succession, and all contact with Jane 

ceased very quickly thereafter. Jane‟s first two interviews do not include any discussion 

of slaps, and therefore cannot support the Appeals Panel‟s finding that John permitted or 

encouraged the slaps. 

Second, Jane‟s accounts were extremely vague about what John actually said. 

When asked specifically what John said, Jane replied that he made “[c]omments about 

my body.” Interviewers asked Jane again what John said, and Jane replied, “How do you 

like that?” But this is the comment Jane attributed to Student 1—not John—in her first 
33

interview, before any slaps were mentioned. When asked for clarification about whether 

John said that (as opposed to the other men), Jane was vague: “They were all saying it. 

Like, Look at her! Oh my god!” Jane did not know when John started saying these 

things. This does not support a finding that John permitted or encouraged the other men 

to slap Jane.

Third, Jane was very clear that John did not tell the other men to do anything. 

When asked, “Did [John] or anyone tell anyone to do something to you? Were there any 

directive comments?” Jane replied, “I don‟t think so.” And later in the same interview: 

“Did anyone tell them to hit you? [Jane] replied No.” 

The Appeals Panel held that while “there is no evidence that the accused directed 

the activity, SJACS was reasonable in concluding that he encouraged it.” The Appeals 

Panel partially relied on Jane‟s statement that the men were “prompting and urging each 

other on in the activity.” But Jane said that in her first interview when discussing the 

rough digital penetration, before she ever mentioned that she was slapped. That comment 

therefore cannot support a finding that John encouraged or permitted the others to slap 

Jane. The Appeals Panel also credited Jane‟s statement that the men were “all kind of 

feeding off each other,” but that statement also did not implicate anything that John may 

have said relating to Student 1 and Student 2 slapping Jane. In short, we find no support 

for the assertion that John made taunting and aggressive comments in relationship to the 

slaps. No substantial evidence supports a conclusion that John “encouraged . . . others to 

engage in misconduct.”

As to whether John “permitted” the misconduct, the Appeals Panel held that John 

said he saw Student 1 and Student 2 “smack the complainant several times.” Without 

citing any evidence or support, the Appeals Panel concluded that if John tried to stop the 

nonconsensual conduct, “it is more than likely than not that he did so, if at all, only after 

the complainant began crying.” John told interviewers that the slaps occurred “so fast I 

couldn‟t stop them.” Jane said there may have been as much as 20 seconds between the 

first and third slaps. The question therefore is whether there is substantial evidence to 
34

determine that John “permitted” the other students to slap Jane within the time frame 

between the first and last slap.

In the six interviews discussing what occurred in the bedroom (two interviews 

with John and four interviews with Jane), none of the information demonstrates that John, 

by his words or actions, permitted Student 1 and Student 2 to slap Jane. To conclude that 

John could have or should have done something to control the other men‟s behavior

necessarily requires an assumption that John knew that Student 1 would slap Jane, and 

then that Student 2 would follow up with another slap (or, in the case of Jane‟s fourth 

interview, that he was aware a third slap would occur). There is nothing in the record to 

support such a finding. John could not prevent activity he did not know was about to 

occur, and therefore the evidence demonstrating John‟s 20 to 30 seconds of inaction, 

without more, cannot be fairly characterized as “permitting” Student 1‟s and Student 2‟s 

misconduct.

USC argues that even if we do not find that John violated the first sentence of 

section 11.44C by “[e]ncouraging or permitting others to engage in misconduct 

prohibited within the university community,” we should find that John nonetheless

violated the second sentence of section 11.44C because he “[f]ail[ed] to confront and 

prevent the misconduct, notify an appropriate university official of the misconduct, or 

remove [himself] from the situation.” USC acknowledges that the “or” in this sentence is 

disjunctive, so a student may choose any one of the three actions to comply with the code 

section. 

The evidence unquestionably shows that John complied with the third option—he 

removed himself from the situation. The nonconsensual activity lasted, at most, 20

seconds (assuming 10 seconds after the first and second slaps). Jane was unequivocal in 

her statement that as soon as she started crying, all contact ended and the men left within 

20 seconds. John therefore left within one minute of the first slap. There is no 

substantial evidence supporting a conclusion that John failed to remove himself from the 

situation.
35

The Appeals Panel held that the way John removed himself from the situation was 

insufficient to comply with section 11.44C because he “was abandoning the complainant 

in a situation endangering her, and also because he was fleeing after the misconduct 

occurred.” There is no evidence in the record to support these conclusions. As discussed 

more fully below, there is no evidence that Jane was in danger after John and the other 

men left; she told interviewers that she immediately went to the bathroom to collect 

herself and then returned to her friends. Moreover, the Appeals Panel‟s interpretation 

places John in a Catch-22: The language of 11.44C permitted John to remove himself 

from the situation to comply with its requirements, but the Appeals Panel held that he 

violated 11.44C by doing so.15 Such a ruling cannot be sustained. 

An “abuse of discretion is established if the court determines that the findings are 

not supported by substantial evidence in the light of the whole record.” (Code Civ. Proc., 

§ 1094.5, subd. (c).) Here, substantial evidence does not support the Appeals Panel‟s 

conclusion that John either encouraged or permitted Student 1 or Student 2 to slap Jane, 

or that John failed to remove himself from the situation. In light of the entire record, the 

Appeals Panel‟s finding that John violated section 11.44C is not supported by substantial 

evidence.

2. Section 11.32

USC argues in its cross-appeal that substantial evidence supports the Appeals 

Panel‟s conclusion that John violated Section 11.32, and therefore that violation should 

be reinstated.

16

 Section 11.32 prohibits “[c]onducting oneself in a manner that endangers 

 

15 As discussed in the following section, USC furthers the nature of the Catch-22 

by arguing that John also violated 11.32 by removing himself from the situation. Under 

this logic, by complying with the mandate of 11.44C, John necessarily violated 11.32.

16 In its cross-appellant‟s reply brief, USC goes far beyond the scope of its opening 

brief and argues additional points relating to John‟s appeal. When a party is both an 

appellant and respondent, as is the case here, “[a] party must confine a reply brief, or the 

reply portion of a combined brief, to points raised in its appeal.” (Cal. Rules of Court, 

rule 8.216(b)(3).) We therefore have not considered any arguments from the reply brief 

that extend beyond the scope of USC‟s opening brief relating to John‟s alleged violation 
36

the health or safety of other members or visitors within the university community or at 

university sponsored or related events.” According to USC, there is substantial evidence 

that “Petitioner endangered Jane‟s safety by abandoning her in the bedroom,” or phrased 

another way, “abandoning a vulnerable student, exposed, on a bed, where other 

partygoers had full access, would support a violation of Section 11.32.” 

This argument is unpersuasive. USC‟s suggestion that John endangered Jane‟s 

safety simply because she was “in a rented house in Hollywood, far from the USC 

campus, and full of college students, many of whom had been drinking” is purely 

speculative. There is no evidence in the record that Jane‟s health and safety were in any 

danger after John left the bedroom. There is therefore no evidence that John violated 

section 11.32 by leaving Jane in the bedroom.

The Appeals Panel concluded that John violated 11.32, but it reached that decision 

by disregarding both Jane‟s and John‟s accounts of what occurred, and instead relying on 

the report of John‟s friend, Witness 6. Witness 6 reported that during the party, John said 

he left Jane in the bedroom with the other men. The six interviews of Jane and John 

made clear that this was not correct. Jane said in her first interview that after she cried, 

John, Student 1, and Student 2 stopped, quickly dressed, and left the room within 20 

seconds. In her second interview, she said when she started crying, “they dressed and 

they all left.” In her third interview, Jane said she was not sure if all the men left 

together, because she went into the bathroom, and nothing about John‟s departure was 

mentioned in the fourth interview. John told investigators in his first interview that when 

he left the bedroom he ensured Student 1 and Student 2 also left, and he said in his 

second interview that when he walked out, Student 1 and Student 2 were with him. 

John‟s friend C also told interviewers that he saw John, Student 1, and Student 2 emerge 

from the bedroom together. 

Hearsay evidence that contradicts all firsthand accounts of what occurred is not 

substantial evidence sufficient to support a finding that John endangered Jane‟s health or 

 

of section 11.32. (Cal. Rules of Court, rule 8.204(e)(2); Hawran v. Hixson (2012) 209 

Cal.App.4th 256, 267-268.)
37

safety when he walked out of the bedroom. Under the substantial evidence test, the 

quality of the evidence is important. (Roddenberry v. Roddenberry (1996) 44 

Cal.App.4th 634, 651.) “„Substantial evidence‟ is evidence of ponderable legal 

significance, evidence that is reasonable, credible and of solid value.” (Ibid.) The 

hearsay recounted by Witness 6, which directly contradicts the accounts of percipient 

witnesses John (the alleged source of Witness 6‟s information), Jane, and C, does not 

meet this standard. The Appeals Panel‟s finding that John violated section 11.32 was 

therefore not supported by substantial evidence.

Because John was denied a fair hearing as required by Code of Civil Procedure 

section 1094.5, and substantial evidence does not support the Appeals Panel‟s findings, 

John‟s petition for writ of mandate should have been granted. 

DISPOSITION

The judgment is affirmed to the extent that it sets aside USC‟s decision that John 

violated Student Conduct Code section 11.32. The judgment is reversed in all other 

respects, and the matter is remanded to the trial court with directions to grant John‟s

petition for writ of mandate. John shall recover his costs on appeal. 

CERTIFIED FOR PUBLICATION

COLLINS, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.