Filed 11/22/16

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOHN DOE,

Plaintiff and Respondent,

v.

REGENTS OF THE UNIVERSITY OF 

CALIFORNIA,

Defendant and Appellant.

 D068901

 (Super. Ct. No. 37-2015-00010549-

 CU-WM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joel M. 

Pressman, Judge. Reversed and remanded with directions.

Munger, Tolles & Olson, Bradley S. Phillips, Grant A. Davis-Denny, Thomas P. 

Clancy; Charles F. Robinson, Karen J. Petrulakis, Margaret L. Wu and Elisabeth C. Yap 

for Defendant and Appellant.

Huang Ybarra Singer & May, Katherine K. Huang, Carlos A. Singer and Kevin H. 

Scott for the California Coalition Against Sexual Assault, the National Alliance to End 

Sexual Violence, and the California Women's Law Center as Amicus Curiae on behalf of 

Defendant and Appellant.
2

Haberkorn & Associates, Matthew H. Haberkorn; Esner, Chang & Boyer, 

Andrew N. Chang and Joseph S. Persoff for Plaintiff and Respondent.

Cynthia P. Garrett for Foundation for Individual Rights in Education as Amicus 

Curiae for Plaintiff and Respondent.

John Doe and Jane Roe1 were students at the University of California, San Diego 

(UCSD) when they began a romantic relationship. A few months after their relationship 

ended, Jane made a complaint to UCSD's Office of Student Conduct (OSC) that John had 

sexually assaulted her. An investigator from UCSD's Office for the Prevention of 

Harassment and Discrimination (OPHD) began an investigation, and Jane submitted a

written request for a formal investigation. The investigator produced a report indicating 

it was more likely than not that John digitally penetrated Jane's vagina without consent on 

the morning of February 1, 2014 in violation of UCSD's Student Conduct Code.2 The 

investigator concluded there was insufficient evidence to support two other claims Jane 

had alleged against John. These claims were: (1) John had sexual intercourse with Jane 

without her effective consent on January 31, 2014; and (2) John retaliated against Jane at 

an off campus party on May 14, 2014.

After a meeting with the relevant dean in which John did not take responsibility 

for the alleged misconduct, UCSD held a student conduct review hearing regarding Jane's 

 

1 To protect the identities of the individuals involved, we use the names "John Doe" 

and "Jane Roe." As a matter of convenience and to avoid confusion, we use just John 

and Jane throughout the remainder of the opinion.

2 A copy of UCSD's Student Conduct Code for the 2013-2014 Academic Year 

(Final 7-2-13) is contained in the record.
3

complaint where a student conduct review panel (Panel) heard testimony and considered 

evidence. Ultimately, the Panel found that John had violated UCSD's Student Conduct 

Code. In addition to other sanctions, the Panel recommended John be suspended from 

UCSD for one quarter.

After considering the Panel's recommendation, the evidence, and statements from 

both John and Jane, the relevant dean suspended John for an entire year in addition to 

prescribing other sanctions. John appealed the Panel's decision as well as the sanctions to 

the council of provosts, but the council found the Panel's decision supported by the

evidence and the sanctions were not too excessive. In fact, the council of provosts 

increased the length of John's suspension by a quarter.

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

afforded a fair hearing, substantial evidence did not support the Panel's decision, and both 

the dean and the Regents of the University of California (Regents) improperly increased 

his punishment in response to his appealing the Panel's decision and recommended 

sanctions. The superior court granted the petition, agreeing with John on all grounds and 

entered judgement requiring the Regents to set aside their findings and the sanctions 

issued against John.

The Regents appeal the judgment, arguing the trial court erred in granting the 

petition for writ of mandamus. Specifically, the Regents contend the Panel's substantive 

decision is supported by substantial evidence, the hearing provided John did not deny him 

due process, and the sanctions were not a product of an abuse of discretion. We agree.
4

Substantial evidence supports the Panel's decision and findings. Specifically, the 

decision and findings are supported by Jane's testimony at the hearing as well as the 

investigator's report, which was before the Panel and given to John and Jane before the 

hearing. John's reliance on contrasting evidence and emphasis of other evidence bearing 

on Jane's credibility is not of the moment. Under the extremely deferential substantial 

evidence standard of review, we must disregard the contrary evidence, and we do not 

make credibility determinations. Here, the evidence was sufficient to buttress the Panel's 

decision.

We also disagree with John's contention that the process, especially the hearing, 

was unfair. John was provided with notice of his alleged violation, informed regarding 

the basis of that violation, and given the opportunity to put forth his defense. We 

acknowledge that UCSD's procedures were not perfect and we have some concerns, but 

on the record before us, we cannot conclude the process was unfair. Further, John has 

not shown he was prejudiced by the process UCSD afforded him in this case.

Finally, we determine that UCSD's sanctioning of John was not an abuse of 

discretion. In reaching this conclusion, we observe that the Panel was not authorized to 

sanction John and merely made a recommendation to the relevant dean. That dean 

sanctioned John in the first instance and did so per the applicable sanctioning guidelines, 

which required a minimum one-year suspension for his violation. And, on the record 

before us, we cannot say that the slight increase in the length of that suspension levied by 

the council of provosts after John's appeal was an abuse of discretion.
5

For these reasons and as explained below, we reverse the judgment and remand 

the matter back to superior court with instructions. 

FACTUAL AND PROCEDURAL BACKGROUND

The Incident

We take the following facts from the administrative record. Where appropriate, 

we note some of the disputed facts that appear in the record.

Jane and John met in January 2014. Shortly thereafter, they began a romantic 

relationship. At the beginning of the relationship, Jane told John that she was a virgin 

and planned to wait to have sexual intercourse "until marriage or until something that was 

very, very special to [her] and that [she] wasn't going to change [her] mind." The couple 

would "make out[,]" including engaging in oral sex. During some of these interactions, 

John would ask Jane to have sex. She would tell him that she physically wanted to, but 

"mentally [she] always said no." John stated that he and Jane "expressed an interest in 

having intercourse," and Jane "eventually communicated to [him] that she was now 

becoming a bit more ambivalent in respect to her abstinence." John informed Jane that 

he was willing to have sex with her if she changed her mind.

On January 31, 2014, Jane and John agreed to attend a party together. Prior to 

going to the party, Jane went to John's apartment with a group of people to "pregame, to 

drink before the party." Jane was not an experienced drinker, and the evening of 

January 31 marked only the second or third time she had ever drank alcohol. The record 

is unclear how much alcohol Jane consumed while at John's apartment, but Jane drank 
6

vodka out of a red plastic cup. John believed Jane drank about four or five shots of 

vodka.

Jane also brought a change of clothes to John's apartment so she could spend the 

night after the party. She had spent the night with him on previous occasions, and they 

had not had sex on any of those nights.

Jane and John eventually left John's apartment and went to the party. Jane recalls 

drinking more alcohol at the party, but the record is unclear regarding how intoxicated 

Jane was. The record indicates that Jane's "memory of the night became very blurry."

Eventually, Jane and John returned to John's apartment after the party. Jane did 

not remember much of what happened the rest of the night as she "blacked out."

The next morning, Jane woke up in John's bed. Although she could not remember 

what happened the night before, her vagina felt sore. She suspected that the soreness was 

caused by having sex the night before, but she did not remember engaging in sexual 

intercourse.3 That morning, John tried several times to touch Jane's vagina. Jane kept 

pushing his hands away while saying, "Stop, it hurts," and "I am sore. Don't." Jane 

stated that John kept coming "back and doing it regardless of whether or not [she] said 

stop or not." After Jane told John to stop one time, John responded, "Well, if it hurts then 

 

3 In an offer of proof, John only stated that he and Jane started kissing in his 

bedroom after the party on January 31, 2014. He did not state that they had sexual 

intercourse that night. 
7

I guess I did my job right." Evidence in the record indicates that John entered Jane's 

vagina three times with his finger.4

A couple hours later, John drove Jane home. During the day, John and Jane texted 

each other, commenting about how members of their fraternity and sorority were 

becoming romantically involved.

The night of February 1, 2014, was Jane's sorority formal, and she had previously 

asked John to attend. Although Jane was "really upset" "for having sex" and "getting that 

drunk[,]" she did not "want to uninvite [John] because [she] didn't want people to ask 

[her] why" and "didn't want to explain what happened." Thus, Jane and John attended the 

formal. There, John asked Jane if they were going to have sex again that night. Jane told 

John that she wanted to pretend that the previous night never happened and was just 

going to move on. However, John kept asking Jane to have sex that night, saying "Well, 

what's twice? You know, we have already done it once, what's twice?" He also told 

Jane, "You are already not a virgin, it is already over, you might as well do it again." 

Jane responded multiple times that she was not going to have sex. Nevertheless, Jane 

eventually consented to have sex with John, stating that she "gave up on [herself]" and 

told John something to the effect of, "Let's just get it over with, it is whatever."

After the formal, Jane and John interacted occasionally both socially and 

academically. Jane stated that they were not friends and she did not want to be around 

 

4 John denied that he and Jane were "amorous" on the morning of February 1. He 

also testified that there was no touching between them. However, he did not provide any 

further detail regarding what occurred that morning, invoking the Fifth Amendment in 

response to the Panel's follow up questions.
8

him. In fact, Jane claimed that she nearly failed a class she had with John because she 

did not want to see him. John provided a couple texts that show Jane and John discussing 

the possibility of interacting socially as well as discussing homework. He also provided 

an offer of proof that they studied together.

The Complaint and the Investigation

On June 5, 2014, Jane submitted a complaint to OSC stating that John engaged in 

sexual intercourse with her while she was incapacitated due to alcohol consumption on 

January 31, 2014. The complaint was forwarded to OPHD for investigation. OPHD 

Complaint Resolution Officer Elena Dalcourt began the investigation. Dalcourt 

interviewed Jane on June 12, 2014. During that interview, Jane expanded on her original 

complaint, alleging that on the morning of February 1, 2014, John digitally penetrated her 

vagina more than once despite her objections. She also alleged that on May 14, 2014, 

John retaliated against her by intimidating, harassing, and threatening her at an off 

campus party.

Four days after her initial interview, Jane submitted a request for formal 

investigation (Request) to OPHD. In the Request, Jane alleged that John raped her on 

January 31, 2014, because she was "highly intoxicated" and "in no condition to be able to 

give consent[.]" Jane also contended that on the morning following her sexual encounter 

with John, she told John that she felt "weird" about what happened, but John told her that 

"it was fine and that [she] wanted it." Jane then alleged that John "kept trying to move 

[her] underwear and touch [her] but [she] kept telling him that it hurt really badly and 

asked him to stop."
9

In investigating Jane's allegations, Dalcourt interviewed Jane twice, talked to 14 

witnesses, and reviewed certain text messages. Dalcourt also sent an e-mail to John 

asking to discuss the Request. John, through counsel, declined to be interviewed. 

However, John's counsel did provide Dalcourt with an offer of proof dated July 29, 2014 

(July Offer of Proof). As part of the July Offer of Proof, John's counsel invoked the Fifth 

Amendment on John's behalf, but then provided an offer of proof "regarding the scope of 

[John's] testimony if he were called as a witness and required to testify[.]" The July Offer 

of Proof provided some general background information about John and discussed his 

relationship with Jane. In regard to their relationship, the offer of proof stated that a few 

days after they met, Jane agreed to go back to John's apartment after a party. Jane told 

John she was Mormon and did not want to have sex, but would "gladly spend the night." 

John told Jane he had no problem with her request to abstain from sex.

The July Offer of Proof provided that in the week leading up to the February 1, 

2014 formal, Jane would send John numerous text messages " 'non-stop' throughout the 

days and nights" and that Jane indicated that she liked John a lot. John, however, wanted 

to keep their relationship "less serious." 

The July Offer of Proof also set forth that, through various text messages, Jane 

conveyed her excitement to get intoxicated and spend the night with John on January 31, 

2014, and have John spend the night with her following the formal on February 1.

After John and Jane returned to John's apartment following the party on 

January 31, the July Offer of Proof stated that John and Jane "started kissing" but it did 

not describe what occurred, if anything, beyond kissing. In other words, the offer of 
10

proof did not discuss any sexual intercourse occurring between John and Jane on the 

night of January 31. Likewise, there was no mention of any intimate touching the 

following morning. Nor did the offer of proof indicate that John and Jane engaged in any 

intimate activities beyond kissing when John spent the night at Jane's apartment 

following the formal on February 1.

Dalcourt provided John's attorney with 21 written questions pertaining to the 

investigation of Jane's claims in the Request. John's attorney provided a response to the 

questions in a second offer of proof dated August 25, 2014 (August Offer of Proof). The 

responses to the 21 questions consisted largely of objections and short answers. Of 

particular note, John's attorney was unable to provide any text message showing that John 

expressed to Jane that he did not want Jane to become too intoxicated and he did not want 

her to do anything stupid at the January 31 party.5 In addition, as a follow up to the July 

Offer of Proof wherein John's attorney stated that Jane and John "physically felt each 

other" during a car ride on January 31, John's attorney declined to explain what he had 

meant by that phrase, but instead, invoked the Fifth Amendment. Also, in response to the 

question, "Was there any touching between the parties on the morning of February 1st?", 

John's counsel objected that the question was vague, ambiguous, unintelligible, and 

overly broad. No substantive response was provided.

Via e-mail, Dalcourt confirmed that she had received the August Offer of Proof. 

John's attorney responded, indicating "I'm hopeful that with the information provided 

 

5 The July Offer of Proof indicated that John sent text messages to Jane conveying 

these sentiments.
11

thus far by way of an offer of proof, and your ongoing investigation, this matter will be 

resolved shortly and John Doe will be exonerated of any and all complaints submitted by 

Jane Roe."

Dalcourt responded, in part:

"As you are aware, we typically conduct interviews in person, and 

the nature of the questions posed to your client are the type of 

questions we ask in in-person interviews. As you have declined on 

your client's behalf an in-person interview, we are attempting to 

provide your client an opportunity to supply relevant information, 

the same opportunity provided to the complainant. As we discussed 

previously, this is not a criminal proceeding; it is an administrative 

investigation. If you have additional information to provide on 

behalf of your client, you can do so at any time while the 

investigation is pending. You may also suggest any witnesses you 

believe can supply relevant information.

"For clarity and in addition to the June 16, 2014 Request for Formal 

Investigation submitted by complainant Jane Roe, I would like to 

outline the specific allegations our office is investigating, as details 

have emerged from interviews of the complainant and relevant 

witnesses. We are investigating the following allegations:

"1) An alleged violation of the UC San Diego Student Sex Offense 

Policy (the 'Sex Offense Policy,' link provided previously on 7/22) 

on the night of January 31st, 2014 involving sexual intercourse while 

the complainant was allegedly incapacitated and unable to provide 

effective consent under the Sex Offense Policy[6];

"2) An alleged violation of the Sex Offense Policy on the morning of 

February 1st, 2014, involving digital penetration without consent; 

and 

 

6 The UC San Diego Student Sex Offense Policy and Reporting Procedures, 

effective date November 17, 2009, updated December 3, 2009, and January 30, 2013 

(Sex Offense Policy), is contained in the administrative record.
12

"3) An alleged violation of the Sex Offense Policy with respect to 

retaliation, including harassment, threats and intimidation on the 

night of May 14, 2014 at an off-campus party.

"Please let me know if you have any questions regarding the above 

or our process."

On September 10, 2014, Dalcourt submitted the results of her investigation to 

OSC in a written report (OPHD Report).7 The report included Dalcourt's credibility 

determinations of various witnesses who were not identified by name in the OPHD 

Report as well as a discussion of some of the information provided by the witnesses. In 

addition, the report included a rather detailed discussion of what Jane told Dalcourt

during her two interviews. In regard to Jane's claim that John had sexual intercourse with 

her while she was too intoxicated to consent, Dalcourt found Jane "credible in her 

assertion that she was in a blackout during sexual intercourse, [but ultimately concluded] 

there is insufficient evidence to show based on [Jane's] behavior, [John] knew or should 

have known that [Jane] was incapacitated." Dalcourt also determined there was 

insufficient evidence to find John violated the Sex Offense Policy8 by retaliating against 

Jane.

However, in regard to the incident on the morning of February 1, 2014, Dalcourt

concluded:

 

7 The OPHD Report was a 15-page letter from Dalcourt to Benjamin White, director 

of OSC.

8 The record refers to John violating the Student Conduct Code and the Sex Offense 

Policy somewhat interchangeably. Among other things, the Student Conduct Code states 

conduct, including attempts to engage in or aid in such conduct, in violation of the Sex 

Offense Policy will subject a student to certain consequences and sanctions. (Student 

Conduct Code, § VII, subd. (Z), p. 9.) 
13

"I find reasonable cause to believe University policy was violated. I 

find [Jane] credible in her assertion that she objected to physical 

activity during the morning in a clear and unambiguous manner, and 

that [John] repeatedly ignored these objections, despite [Jane] telling 

him that his touching was painful. I find [Jane] did not intend to 

engage in any sexual activity during the morning, and that [John] 

ignored [Jane's] wishes that he refrain from touching her and 

entering her. I find [Jane] credible in stating that [John] said that he 

must have done '[his] job right' due to the fact that [Jane] was in 

pain, which shows he did not see her communication of pain as a 

reason to stop, as would a reasonable person in the respondent's 

position." 

Subsequently, on October 13, 2014, John, his father, and his counsel met with 

Dean Sherry Mallory, the dean of student affairs for Revelle College, to discuss an 

administrative resolution of the alleged violations. Although there is no record of what 

was discussed at that meeting, John's counsel sent a follow up e-mail to Mallory after the 

meeting. In that e-mail, John's counsel indicated that John "unequivocally told [Mallory] 

the actions [digital penetration] did not occur." He then continued to point out that Jane's 

credibility was "suspect." John's counsel emphasized that the digital penetration incident 

was not described in the Request although Jane submitted the Request after her initial 

complaint on June 5, 2014 and her first interview with Dalcourt. Counsel then implied 

that the allegation of nonconsensual penetration was "first 'developed' somehow during 

the investigation." Further, he claimed that John was not made aware of such an 

allegation until he received the OPHD Report.9

 

9 This claim is contradicted by the record. The OPHD Report is dated 

September 10, 2014. However, in an e-mail from Dalcourt to John's counsel dated 

August 26, 2014, Dalcourt specifically informed John's counsel that she was investigating 

three alleged violations of the Sex Offense Policy, including nonconsensual digital 
14

John's counsel asked Mallory to dismiss the alleged violation because "the 

preponderance of evidence tip[s] in favor of the accused." To this end, John's counsel 

stressed Jane was not credible, her motives were questionable because she took too long 

to make her complaint, and the "case sounds more like a scorned young woman than one 

meriting the potential ruination of [John's] future . . . ."

Four days later, Mallory responded by e-mail to John's counsel. She stated in part:

"I apologize for the delay in responding. As I mentioned during our 

meeting on Monday, I consider OPHD's finding of an alleged 

violation to be sufficient evidence to sustain the allegation and to 

forward the case to the Student Conduct Office for review.

"As requested, I have re-reviewed the complainants' [sic] statement 

of facts submitted on June 16. While she does not specifically 

reference digital penetration, she does mention touching and a 

request to stop. Students often expand on the statements included in 

their initial complaints during follow-up conversations (with OPHD, 

the Office of Student Conduct, or the Student Conduct Officer 

hearing the case); I expect that is what happened in this instance." 

The Hearing, Punishment, and Appeal to the Council of Provosts

On November 10, 2014, John was notified that his student conduct review hearing 

would be held on December 12, 2014. As part of that notice, John was informed that the 

hearing panel would consist of Rebecca Otten, director of Strategic Partnership/Housing 

Allocations (Chair); Jeff Hill, assistant director (The Village) of Residence Life; and Kris 

Nelson, representative of the Graduate Student Association. In addition, Anthony 

Jakubisin, assistant director of Residence Life (Sixth College), would serve as the 

university representative.

 

penetration that occurred on February 1, 2014. Indeed, Dalcourt asked John's counsel for 

any information or witnesses relevant to the claims.
15

Prior to the hearing, John made a written submission to the Panel. In that 

submission, John referenced his right to remain silent under UCSD's Review Procedures 

for Alleged Sex Offenses, Harassment or Discrimination Violations, effective January 30, 

2013, updated August 21, 2013, July 22, 2014 (Review Procedures) and the Fifth 

Amendment. He provided a statement of facts similar to what he previously provided in 

the July Offer of Proof, but also included a discussion of Dalcourt's investigation. John 

did not state that he and Jane engaged in consensual sexual intercourse on January 31 or 

February 1, 2014. Nor did he indicate that any intimate touching occurred on the 

morning of February 1.

In addition, in the written submission, John challenged Jane's credibility and 

provided the Panel with copies of text messages as well as other evidence. He also 

disputed the fairness of the proceedings, noting he did not receive OPHD's entire 

investigatory file and pointing the Panel to various articles addressing the lack of fairness 

to an accused during sexual misconduct cases at other universities.

John's student conduct review hearing was held on December 12, 2014, during 

which John had counsel present. At the hearing, the Panel considered whether John 

violated UCSD's Student Conduct Code by committing sexual assault or sexual 

misconduct. "Sexual assault" is defined as "sexual activity engaged in without effective 

consent of the other person, and is intentional." This includes circumstances involving 

physical force, violence, threats, or intimidation; ignoring the objections of the other 

person; or taking advantage of the other person's incapacitation. (Sex Offense Policy, 

§ II, subd. (A), p. 3.) "Sexual misconduct occurs when non-consensual activity is 
16

engaged in without the intent to harm another, such as when a person believes 

unreasonably that effective consent was given when, in fact, it was not." (Sex Offense 

Policy, § II, subd. (A), p. 3.) 

Following prefatory statements by the Panel chair addressing the review process 

and rules of the hearing, Jakubisin, as the university representative, presented information 

supporting the alleged violation of the Student Conduct Code.10 As part of his 

presentation, Jakubisin called Jane as a witness. She testified in detail as to the events on 

the morning of February 1, 2014. She also testified as to her prior relationship with John

and their actions after the morning of February 1, 2014. After Jakubisin finished asking 

Jane questions, the Panel chair asked Jane a few additional questions, mainly about her 

interactions with John on the nights of January 31 and February 1, 2014.

After asking the Panel's questions, the Panel chair moved on to written questions 

for Jane that John had submitted prior to the hearing. In all, John had proposed 32

questions for the Panel to ask Jane.11 Of the 32 questions proposed by John, the Panel 

chair only asked nine of them. However, after asking the nine previously submitted 

 

10 Per the Review Procedures, "[t]he role of the University Representative will be to 

present information from the investigative report and other relevant documents 

supporting the alleged violations. The University Representative [also] will coordinate 

the appearance of witnesses, including the complainant, supporting the alleged 

violations." (Review Procedures, § III, subd. (B), p. 4.)

11 "The Review Panel or Review Officer will be responsible for asking questions to 

parties and witnesses during the review. Parties may provide questions in writing to the 

Review Panel Chair or Review Officer to be asked of the other party or witnesses at the 

Chair's or Review Officer's discretion. The Chair or Review Officer may exclude any 

unduly repetitious or irrelevant questions or information. Review participants are not 

required to provide information that would be incriminating." (Review Procedures, § III,

subd. (T)(2), p. 8.) 
17

questions, the Panel chair asked John if he had any additional questions for Jane. John 

declined to submit any additional questions.

The Panel chair then asked John to present any information and witnesses 

supporting his perspective. John declined to do so, but instead, asserted his Fifth 

Amendment right not to respond. The Panel chair noted that John had interjected during 

Jane's testimony; thus, she asked John if he wanted to elaborate on what he was going to 

say at that time. John declined to do so. The Panel chair proceeded to ask John 

questions. One such question asked John to identify any "particular part of [his] 

statement or the documents that [he] provided that [he] would like [the Panel] to focus 

on." John responded, "Everything that I ha[ve] submitted is relevant and should be 

considered."

The Panel chair also asked John about what consent did Jane provide on the 

morning of February 1, 2014 when he allegedly digitally penetrated Jane's vagina. John 

stated that they "had not been amorous in the morning whatsoever" and then clarified 

"[t]here was no touching" that morning. As a follow up, the Panel chair asked John if he 

would like to elaborate on the conversation that he and Jane had on the morning of 

February 1, 2014. At that point, John asserted his Fifth Amendment right and did not 

respond to any further questions about the incident.

After the Panel chair finished asking John questions, the Panel then provided 

Jakubisin the opportunity to give a closing summary statement. Jakubisin did so, 

focusing the Panel on the one incident on the morning of February 1, 2014, discussing 

UCSD's policies relating to the incident, highlighting Jane's testimony at the hearing, and 
18

emphasizing certain portions and findings of the OPHD Report. Although given an 

opportunity to do so, John declined to make any closing summary statement.

After the hearing concluded, but on the same day as the hearing, John submitted to 

the Panel a document entitled "Respondent's Supplemental Submissions and Other 

Information in Support of his Defense." In that document, John argued, among other 

issues that his "questions . . . to be asked of Complainant were unreasonably and 

indiscriminately limited to such an extent that Respondent was subjected to an 

unfair hearing and a denial of his due process rights." (Emphasis in original.) John 

continued to emphasize that he should have been permitted to more fully cross-examine 

Jane during the hearing.

In regard to the incident itself, John provided the following argument:

"The alleged violation of the Sex Offense Policy on the morning of 

February 1st, 2014 involving digital penetration without consent is 

built solely around factual claims and charges made orally by 

Complainant. Crucial to this issue, as set forth in . . . Dalcourt's . . . 

September 10, 2014 letter to Mr. White, is the fact that the 

Complainant admits to having sexual intercourse on the evenings of 

January 31, 2014 and February 1, 2014 - before and after the alleged 

digital penetration that she failed to mention in her Request 

submitted on June 16, 2014 (after meeting with . . . Dalcourt of 

OPHD just four days prior). In light of the foregoing and based 

upon a preponderance of the evidence, the alleged digital penetration 

on February 1, 2014, if it even occurred (a fact vehemently denied 

by Respondent), took place in between two consensual acts of 

intercourse between the parties.[12] Further, Complainant's 

 

12 This marks the first time in the administrative record where John concedes that he 

and Jane had sexual intercourse on the night of January 31, 2014. However, we note that 

John refers to the sexual intercourse as consensual. We find no support in the record for 

this assertion. Jane testified that she was intoxicated and passed out when intercourse 

occurred. Dalcourt found Jane credible in her assertion that she was blacked out during 

sexual intercourse, but found it "unclear as to how [Jane] exhibited intoxication and if 
19

interviews summarized by OPHD in its investigative report, is 

lacking in credibility, for Complainant never mentioned the alleged 

acts of digital penetration - even after she had four days to think 

about what she eventually drafted and included in her Request dated 

June 16, 2014. Here again, based upon a preponderance of the 

evidence, Respondent cannot be found responsible for 

nonconsensual digital penetration on the morning of February 1, 

2014."

Five days after the hearing, the Panel produced a report, containing the Panel's 

findings as well as recommended sanctions. Among other things, the Panel found "Jane 

credible in her assertion that John tried to digitally penetrate Jane's vagina and he ignored 

her objections." In addition, the Panel noted that Dalcourt conducted an investigation of 

the incident and concluded that it was more likely than not that, on February 1, John 

ignored Jane's objections to sexual activity. The Panel concluded that John violated 

UCSD's Student Conduct Code by committing sexual misconduct. The Panel 

additionally stated it did not find John violated UCSD's Student Conduct Code by 

committing a sexual assault.

The Panel recommended the following sanctions: (1) suspension for one quarter; 

(2) permanent no contact order between Jane and John; (3) a two-hour sex offense/sex 

harassment training with OPHD; and (4) counseling. 

 

[John] knew or should have known that [Jane] was incapacitated and was therefore 

unable to provide effective consent." John did not offer any narrative regarding what 

occurred between he and Jane in his bedroom after they returned from the party on 

January 31 beyond the claim that the couple "started kissing." 
20

Both Jane and John then submitted statements to be considered by the appropriate 

dean (in this instance, Mallory).13 In her impact statement, Jane discussed the severe 

negative impact John's actions had upon her. She also expressed confusion regarding the 

Panel's conclusion that John violated the Student Conduct Code by engaging in sexual 

misconduct. She pointed out that John took the position that no touching occurred on the 

morning of February 1, 2014. Jane further emphasized that John denied he digitally 

penetrated her vagina because he knew that he did not obtain her consent. Additionally, 

Jane stated that a quarter suspension was not a sufficient sanction and asked for John to 

be suspended for a year.

In his statement, John maintained that he never touched Jane the morning of 

February 1, 2014. John asserted that Jane falsely accused him for her "own sick 

enjoyment" and he also questioned Jane's "suspect motives." John claimed that Jane's 

allegations against him "stem from an internal religious conflict resulting from her own 

regretful decision to lose her virginity, or just as likely, she had parental pressure to 

report sexual allegations when they found out she was no longer a virgin. Either of these 

possibilities, undoubtedly coupled with her twisted psyche, fueled her complaint." John 

additionally explained how the Panel's findings would negatively impact his life and his 

future. Throughout his statement, he repeatedly mentioned his innocence.

 

13 If the Panel determines that a respondent violated the Student Conduct Code, the 

respondent and the relevant dean is provided with a copy of the Panel's report. The 

complainant has five days from notice of the Panel's decision to submit an impact 

statement for the dean's consideration. At the same time, the respondent has the 

opportunity to provide a statement describing any circumstances the dean should consider 

when assigning sanctions. (Review Procedures, § IV, subds. (A) & (B).) 
21

On January 13, 2015, Mallory, after reviewing the Panel's report, Jane's and John's 

statements, John's student conduct review record, and UCSD's sanctioning guidelines, 

Mallory sanctioned John as follows: (1) a year suspension from UCSD; (2) academic 

probation for the rest of John's tenure at UCSD; (3) a mandated assessment at UCSD 

counseling and psychological services; (4) a meeting with a representative of OPHD 

within a month of his return to UCSD; (5) a requirement that he complete an ethics 

workshop; and (6) no contact with Jane.

John appealed the finding of responsibility as well as the sanctions to the council 

of provosts, a body consisting of six UCSD college provosts. John's appeal challenged 

the Panel's process, its findings, and the sanctions imposed.14 The council of provosts 

ultimately upheld the decision of responsibility and increased John's suspension from 

UCSD to a year and a quarter.

The Petition for a Writ of Mandamus

John filed a petition for administrative mandamus in superior court, which was 

later amended. In the operative petition, John argued that the Regents violated Code of 

Civil Procedure section 1094.5 by failing to grant John a fair hearing, failing to proceed 

in a manner required by law; UCSD's decision was not supported by the Panel's findings; 

 

14 In discussing the background of the incident, John, for the second time, took the 

position that he and Jane engaged in consensual sexual intercourse the night of 

January 31, 2014. As we mentioned previously, there is no evidence in the record to 

support this assertion. Further, John goes even further and states that Dalcourt did not 

find Jane's claim of nonconsensual sexual intercourse credible. This misrepresents 

Dalcourt's findings. To the contrary, Dalcourt found Jane credible in her assertion that 

she was "in a blackout during sexual intercourse." However, Dalcourt found the evidence 

insufficient to show that John knew or should have known Jane was unable to provide 

effective consent.
22

and the Panel's findings were not supported by the evidence. In support for his position, 

we note John represented to the court that he and Jane engaged in consensual sexual 

intercourse on January 31, 2014, and cited to the administrative record to support this 

assertion. His citations, however, do not indicate that any consensual intercourse 

occurred. For example, John cited to the Request. Nowhere in the Request does Jane 

state that she had consensual sexual intercourse with John on January 31. Instead, she 

stated that she remembered "starting to kiss" John "and that's pretty much it. When I 

woke up the next morning, I had the idea that we had had sex . . . ." Moreover, later in 

the Request, Jane stated that she believed John had raped her. We fail to see how John 

could cite to the Request as evidence in the administrative record that he and Jane 

engaged in consensual sexual intercourse on January 31, 2014.

John also cited to a portion of his own impact statement that he sent to Mallory 

after the hearing. On the page to which John cites, he does not specifically address what 

occurred on January 31, 2014, but alternatively, states that he would never sexually 

violate a woman. In short, neither of the citations to the administrative record provided 

by John support his assertion that he and Jane engaged in consensual sexual intercourse 

on January 31, 2014.15

 

15 We again emphasize John's after the hearing representation that he and Jane 

engaged in consensual sexual intercourse on January 31, 2014. Although John did not 

have the obligation to offer any evidence regarding what occurred on the night of 

January 31, we observe that in the July Offer of Proof, John only represented that the 

couple kissed on that night. He said nothing about engaging in sexual intercourse, 

consensual or otherwise. In the August Offer of Proof, John did not state that consensual 

sexual intercourse occurred on January 31. John did not testify at the hearing that he and 

Jane engaged in consensual sexual intercourse on January 31. Put differently, if John 
23

After reviewing John's petition and related briefing, the Regents' opposition, the 

administrative record, and hearing oral argument, the superior court granted John's 

petition. The court found that the procedure was unfair because the Regents unfairly 

limited John's right to cross-examine Jane. The court also found the procedure was unfair 

to John because Jane testified while behind a barrier, the Panel improperly relied on the 

OPHD Report, the Panel would not allow John to object or remove certain statements by 

Jane, and the Panel gave improper weight to John's exercise of his Fifth Amendment right 

to remain silent.

The court also found that the evidence did not support the Panel's finding that John 

violated UCSD's Student Conduct Policy by engaging in sexual conduct. The court 

found that "the sequence of evidence do[es] not demonstrate non-consensual behavior[,]"

but instead, the "the evidence does show [Jane's] personal regret for engaging in sexual 

activity beyond her boundaries."

Finally, the court found UCSD abused its discretion in increasing sanctions after 

appeal without explanation. In reaching this conclusion, the court assumed the Panel's 

recommended sanctions were the actual sanctions John first received.

 

believed that what occurred on the night of January 31 somehow impacted the evidence 

provided about the incident on the morning of February 1, 2014, he had several 

opportunities to present Dalcourt or the Panel with evidence of what occurred. He did 

not do so, and the Panel was not asked to make any findings as to what occurred on 

January 31. That said, we find it curious that, immediately after the hearing, John 

represented that consensual sexual intercourse occurred on January 31, 2014. We find it 

troubling that his attorney would make that bald assertion to the superior court without 

any citation to the record that actually supported the assertion. 
24

The court ordered the Regents to set aside the Panel's findings as well as the

sanctions imposed against John, and entered a final judgment requiring the same.

The Regents timely appealed.

DISCUSSION

Here, the Regents argue the superior court erred in: (1) finding the Panel's factual 

determination was not supported by substantial evidence; (2) concluding the process 

provided John was unfair; and (3) determining UCSD abused its discretion in sanctioning 

John.

I

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." (Department of Corrections & Rehabilitation v. State 

Personnel Bd. (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.)

In regard 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.)
25

We review the fairness of the administrative proceeding de novo. (Nasha 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 Dept. of Social Services (2014) 223 Cal.App.4th 72, 96.) 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 (Berman).)

We review the 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."].)

II

THE PANEL'S SUBSTANTIVE DECISION

The parties agree that the superior court applied the proper standard of review to 

the Panel's substantive decision, substantial evidence. However, the parties disagree with 

the court's ultimate determination under that review standard. Although we exercise the 

same standard of review as did the superior court (Do v. Regents of the University of 

California (2013) 216 Cal.App.4th 1474, 1489 (Do)), in light of the superior court's 

conclusion below, we believe it important to discuss this extremely deferential standard 

of review.

"On substantial evidence review, we do not 'weigh the evidence, consider the 

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

inferences that may be drawn from it.' " (Do, supra, 216 Cal.App.4th at p. 1492.) " '[The 
26

administrative agency's] findings come before us "with a strong presumption as to their 

correctness and regularity." [Citation.] We do not substitute our own judgment if the 

[agency's] decision " ' "is one which could have been made by reasonable people. . . ."

[Citation.]' " ' " (California Youth Authority v. State Personnel Bd. (2002) 104 

Cal.App.4th 575, 584.) "Only if no reasonable person could reach the conclusion reached 

by the administrative agency, based on the entire record before it, will a court conclude 

that the agency's findings are not supported by substantial evidence." (Do, supra, at 

p. 1490; see Hongsathavij v. Queen of Angels Etc. Medical Center (1998) 62 Cal.App.4th 

1123, 1137 ["an appellate court must uphold administrative findings unless the findings 

are so lacking in evidentiary support as to render them unreasonable"].) 

We are required to accept all evidence which supports the successful party, 

disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict. 

(Minelian v. Manzella (1989) 215 Cal.App.3d 457, 463.) Credibility is an issue of fact 

for the finder of fact to resolve (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 

Cal.App.4th 613, 622), and the testimony of a single witness, even that of a party, is 

sufficient to provide substantial evidence to support a finding of fact (In re Marriage of 

Mix (1975) 14 Cal.3d 604, 614).

Here, the Panel determined that John committed sexual misconduct on the 

morning of February 1, 2014. Under the Sex Offense Policy, " '[s]exual misconduct'

occurs when non-consensual sexual activity is engaged in without the intent to harm 

another, such as when a person believes unreasonably that effective consent was given, 

when, in fact, it was not." (Sex Offense Policy, § A, p. 3.) Further, the Sex Offense 
27

Policy makes clear that it is a violation of the UCSD Student Conduct Code for students 

to commit or attempt to commit any sex offense defined or addressed in the Sex Offense 

Policy. (Sex Offense Policy, § A, p. 2.) In regard to consent, the Sex Offense Policy

states that "[c]onsent is not indefinite and may be withdrawn at any time." (Sex Offense 

Policy, § A, p. 3.) "Having previously consented to an act does not necessarily imply 

continued effective consent[.] [¶] A current or previous romantic or sexual relationship 

does not imply continued consent[.]" (Sex Offense Policy, § A, p. 3.)

We find substantial evidence supports the Panel's substantive decision. At the 

hearing, Jane testified that, on the morning of February 1, John "kept trying to put his 

hands down [her] pants, and [she] kept telling him that it hurt, because he had had sex 

with [her] while [she] was blacked out drunk the night before, and [she] had never had 

sex prior, so [she] was very sore." Jane further testified that John "kept trying to touch 

[her], and [she] kept pushing his hand away and telling him that it hurt." Jane explained 

that John "would take his hands away, and then like two minutes later he would go and 

try again." Jane stated that, on the morning of February 1, 2014, she told John "multiple 

times" that he should "stop." Jane said she "was very, very clear about that." Despite 

Jane's objections, John "kept going back and doing it regardless of whether or not [Jane]

said stop or not." At one point when Jane told John that his attempts to penetrate her 

vagina hurt, John responded, "Well, if it hurts then I guess I did my job right."

In addition, the OPHD Report stated that on the morning of February 1, 2014, 

John "put his hand down [Jane's] underwear and entered her vagina with his finger, and 

that she told him, 'Stop, it hurts really bad.' " The OPHD Report indicated that John 
28

entered Jane's vagina three times despite Jane telling John she was not in the mood and 

repeated that it hurt and pushed his hand away.

Jane's testimony, by itself, is sufficient to establish that John attempted, multiple 

times, to enter her vagina with his finger despite Jane's clear protestations. Here, John 

argues that conclusion is all that could be found based on Jane's testimony. Even if that 

were true, Jane's testimony would be sufficient for a finding of sexual misconduct as the 

Sex Offense Policy defines a prohibited act, among other things, as committing or 

attempting to commit sexual misconduct. (See Sex Offense Policy, § A, p. 2.) 

In addition, John's argument ignores the additional context provided by the OPHD

Report. That report clearly states that John digitally penetrated Jane's vagina three times. 

When Jane testified that John "then kept trying to move my underwear and touch me but 

I kept telling him that it hurt really badly and asked him to stop[,]" a fact finder could 

reasonably infer that Jane was stating that John was trying to touch Jane's vagina for an 

extended period of time, but when he did manage to touch it, it was painful to Jane and 

she told him no and pushed him away.

In regard to the OPHD Report, John argues that it is "double hearsay" and thus 

cannot constitute evidence in the hearing. John is mistaken. The review procedures

clearly state: "Formal rules of evidence (e.g., California Evidence Code) do not apply." 

(Review Procedures, § III, subd. (T)(1), p. 7; see Goldberg v. Regents of University of 

California (1967) 248 Cal.App.2d 867, 883 (Goldberg) ["Clearly, there is no merit in the 

contention that plaintiffs were deprived of procedural due process because the Committee 
29

did not follow the rules of evidence usually applicable in judicial proceedings . . . ."].) 

Moreover, John was on notice that the OPHD Report could be relied upon at the hearing:

"Generally, an investigation results in a written report that includes a 

statement of the allegations, a summary of the evidence, findings of 

fact, and a determination by the investigator as to whether there is 

reasonable cause to believe that University policy has been violated. 

The standard of proof for the purposes of the investigation is 

preponderance of the evidence (whether it is more likely than not the 

facts occurred as alleged). The report will be submitted to the 

Director of Student Conduct and relevant Dean. The report may be 

used as evidence in other related proceedings, such as subsequent 

complaints, grievances and/or student conduct actions." (Sex 

Offense Policy, § D, subd. (7), p. 8.)

In fact, in the Review Procedures, John was informed, "[t]he Review Panel or 

Review Officer will receive and consider all information and evidence for the alleged 

violations at issue in the case that he or she deems relevant and useful. The investigative 

report produced by OPHD serves as the primary fact-finding document for the incident." 

(Review Procedures, § III, subd. (T)(1), p. 7.)

We also are not impressed by John's argument that the OPHD Report is unreliable 

hearsay evidence based on Doe v. University of Southern California (2016) 246 

Cal.App.4th 221 at page 253 (USC) ("Hearsay evidence that contradicts all firsthand 

accounts of what occurred is not substantial evidence."). That case is not instructive 

here.

In USC, supra, 246 Cal.App.4th 221, the issue was whether USC could find that 

the respondent had endangered the complainant by leaving the complainant in a room 

with other men. There, USC had found that the respondent had left the room without the 

complainant based solely on the report of the respondent's friend who was not in the 
30

room and who was recounting what the respondent had told him. Importantly, the Court 

of Appeal found that both the respondent and the complainant had repeatedly told 

investigators that the respondent remained in the room with the complainant until the 

other men left. (Id. at pp. 252-253.)

Unlike the witness statement relied on by USC, Dalcourt did not contradict 

statements of all firsthand witnesses, but instead, reported the statement of Jane, a 

firsthand witness. Moreover, as we discuss above, Dalcourt's summary of Jane's 

statement was consistent with Jane's testimony at the hearing.

John also argues that the Panel's substantive decision was not based on substantial 

evidence, but instead, was the product of speculation and conjecture. (See Kuhn v. 

Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) To this end, John 

points us to a statement from Mallory that he claims is her justification for the Panel's 

finding:

"As requested, I have re-reviewed the complainants' statement of 

facts submitted on June 16. While she does not specifically 

reference digital penetration, she does mention touching and a 

request to stop. Students often expand on the statements included in 

their initial complaints during follow-up conversations (with OPHD, 

the Office of Student Conduct, or the Student Conduct Officer 

hearing the case); I expect that is what happened in this instance."

John's reliance on Mallory's statement is misplaced. The statement appears in an 

e-mail dated October 17, 2014, from Mallory to John's counsel. It was in response to 

John's counsel's e-mail to Mallory, arguing the Request undermined the existence of the 

alleged violation because Jane did not mention digital penetration in the Request. 

Moreover, Mallory's statement occurred almost two months before the hearing. As such, 
31

Mallory's statement does not attempt to justify the Panel's findings. Instead, Mallory was 

explaining why she believed a hearing was warranted. John's argument here that 

Mallory's statement somehow undermines the Panel's findings and substantive decision is 

unavailing and borders on a misrepresentation to this court.

In summary, Jane's testimony at the hearing coupled with the OPHD Report amply 

support the Panel's finding that John violated the Student Conduct Code on the morning 

of February 1, 2014. The fact John denied that any touching occurred on the morning of 

February 1, 2014 does not undermine the Panel's finding. In fact, we must disregard that 

evidence under the instant standard of review. (Do, supra, 216 Cal.App.4th at p. 1492.) 

Further, the facts that Jane and John were involved in a romantic relationship, had 

previously engaged in consensual oral sex, and engaged in consensual sexual intercourse 

the night of February 1, 2014, all impact the credibility of Jane, but credibility is for the 

fact finder to determine. (Johnson v. Pratt & Whitney Canada, Inc., supra, 28 

Cal.App.4th at p. 622.) We will not reweigh the evidence. (Do, supra, at p. 1492.) The 

superior court erred in finding the Panel's substantive decision was not supported by 

substantial evidence.

III

FAIRNESS OF UCSD'S PROCEDURES 

A. The Law

Having concluded that substantial evidence supports the Panel's substantive 

decision, we next address whether UCSD provided John with a fair procedure. 

Generally, a fair procedure requires " 'notice reasonably calculated to apprise interested 
32

parties of the pendency of the action . . . and an opportunity to present their objections.' " 

(USC, supra, 246 Cal.App.4th at p. 240, quoting Bergeron v. Department of Health 

Services (1999) 71 Cal.App.4th 17, 24.) In regard 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; italics omitted.) 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.) 

However, case law does not plainly elucidate the specific components of a fair 

hearing. Yet, it is clear that the hearing need not include all the safeguards and 

formalities of a criminal trial. " '[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.' " (Andersen v. Regents of University of California (1972) 22 Cal.App.3d 763, 
33

770 (Andersen).) "A university's primary purpose is to educate students: '[a] school is an 

academic institution, not a courtroom or administrative hearing room.' A formalized 

hearing process would divert both resources and attention from a university's main 

calling, that is education. Although a university must treat students fairly, it is not 

required to convert its classrooms into courtrooms." (Murakowski v. University of 

Delaware (D. Del. 2008) 575 F.Supp.2d 571, 585-586.)

Although no particular form of student disciplinary hearing is required under 

California law, a university is bound by its own policies and procedures. (Berman, supra, 

229 Cal.App.4th at pp. 1271-1272.) Additionally, UCSD's "rule-making powers and its 

relationship with its students are subject to constitutional guarantees." (Goldberg, supra, 

248 Cal.App.2d at p. 875.) Nevertheless, a disciplinary proceeding at a university does 

not provide the same due process protections afforded to a defendant in a criminal trial. 

(Id. at p. 881.) However, "to comport with due process," the university's procedures must 

" 'be tailored, in light of the decision to be made, to "the capacities and circumstances of 

those who are to be heard," [citation] . . . to insure that they are given a meaningful 

opportunity to present their case.' " (Southern Cal. Underground Contractors, Inc. v. 

City of San Diego (2003) 108 Cal.App.4th 533, 545.)

B. UCSD's Procedures

At UCSD, a complaint of an alleged violation of the Student Conduct Code

involving sex offenses is referred to OPHD. (Review Procedures, prefatory statement, 

p. 1.) Here, on June 5, 2014, Jane submitted a written report to OSC, which was 
34

forwarded to OPHD for investigation.16 Dalcourt, an OPHD representative, met with 

Jane on June 12, 2014. Four days later, Jane submitted the Request, triggering a formal 

investigation. Dalcourt became the investigator and interviewed some 14 witnesses and 

reviewed various text messages. She also interviewed Jane twice. Dalcourt contacted 

John and attempted to interview him, but John would not agree to be interviewed or 

provide a written or recorded statement. Instead, John, through counsel, submitted two 

offers of proof.

Dalcourt produced the OPHD Report, which indicated that Dalcourt found, 

"[b]ased upon the totality of the circumstances and the evidence presented," it "more 

likely than not that on February 1, [John] ignored [Jane's] objections to sexual activity in 

violation of the Student Sex Offense Policy." The OPHD Report was addressed to the 

director of OSC for "appropriate corrective or disciplinary action."

After receipt of a report from OPHD, the director of OSC reviews the report to 

determine if reasonable cause exists to believe the Student Conduct Code was violated. 

If so, the report is referred to the appropriate dean of students for resolution. (Review 

Procedures, § I, subd. (A), p. 1.) If the subject dean believes reasonable cause exists that 

the Student Conduct Code was violated, the dean will notify, in writing, OPHD, the 

complainant, and the respondent. (Review Procedures, § I, subd. (B), p. 1.) The dean 

then will invite the respondent to participate in an "Administrative Resolution" wherein 

the dean and respondent will meet to determine whether the respondent accepts

responsibility for the alleged violation. (Review Procedures, § II, p. 2.) If the respondent 

 

16 Jane's written report dated June 5, 2014, is not contained in the record.
35

does not accept responsibility, the matter will proceed under the student conduct review 

process.

Here, the OPHD Report was sent to Mallory. Mallory sent an e-mail dated 

September 25, 2014, to John informing him that he was accused of violating certain 

sections of the Student Conduct Code. Specifically, the e-mail informed John:

"[I]t is alleged that on February 1, 2014, you ignored the objections 

of another student that she did not want to engage in sexual activity, 

according to an investigative report completed by the UCSD Office 

of the Prevention of Harassment and Discrimination. The report 

states that the other student asked you to refrain from touching and 

digitally penetrating her but that you did not comply with her 

requests."

The e-mail also instructed John to contact Mallory's office to set up an administrative 

resolution.

On October 13, 2014, John, his father, and his counsel met with Mallory. During 

that meeting, John did not accept responsibility and told Mallory that he did not digitally 

penetrate Jane's vagina on the morning of February 1, 2014. After the meeting, John's 

counsel e-mailed Mallory, urging Mallory to dismiss the allegations against John. 

Mallory declined to do so and forwarded the matter to OSC for review.

Once the subject dean submits a matter to OSC, that office sets up a student 

conduct review. The director of OSC or his or her designee selects a review panel or 

review officer to hear and receive the respondent's and the complainant's information 

about the incidents, meet with relevant witnesses, determine the responsibility of the 

respondent, and recommend appropriate sanctions, if any. (Review Procedures, § III, 

p. 3.) If a panel is appointed, it typically is composed of three staff or faculty members, 
36

but, at times, a student will serve as a panelist. (Review Procedures, § III, subd. (A)(1), 

p. 4.) The director of OSC also selects a university official to serve as UCSD's 

representative for the review. The university representative presents information from 

the investigative report as well as relevant documents supporting the alleged violations. 

The university representative also works with OSC to coordinate the appearance of 

witnesses, including the complainant. (Review Procedures, § III, subd. (B), p. 4.)

Here, the student conduct coordinator sent an e-mail dated November 10, 2014 to 

John informing him that a formal hearing with the Panel to discuss the allegations was set 

for December 12, 2014 at 1:00 p.m. In addition, the e-mail informed John that the Panel 

would consist of: Rebecca Otten, director of Strategic Partnership/Housing Allocations; 

Jeff Hill, assistant director (The Village) of Residence Life; and Kris Nelson, 

representative of the graduate student association. Also, the e-mail listed Anthony 

Jakubisin, assistant director of Residence Life (Sixth College) as the university 

representative. Further, the e-mail provided John with links to the Review Procedures,

Sex Offense Policy, Student Conduct Code, UCSD Housing and Residential Life 

Policies, and frequently asked questions regarding the student conduct process.

Either the complainant or the respondent may request in writing that any of the 

individuals selected for the review panel be disqualified because that individual cannot be 

impartial or unbiased. Such request must be made at least five business days before the 

hearing. (Review Procedures, § III, subd. (L), p. 6.) There is no indication in the record 

that John or Jane requested that any of the proposed Panel members be disqualified.
37

The complainant and the respondent may have advisors present during all stages 

of the process. Potential advisors include a student advocate from UCSD's Office of the 

Student Advocate; a UCSD student, staff, or faculty member; or an attorney. However, 

only student advocates are permitted to speak on behalf of their advisee. (Review 

Procedures, § III, subd. (J), p. 5.) Here, John was represented by counsel before, during, 

and after the hearing. Jane elected to have Nancy Wahling, director of the Sexual Assault 

and Violence Prevention Resource Center, serve as her advisor.

Before the hearing, the complainant or the respondent may suggest witnesses for 

the hearing. (Review Procedures, § III, subd. (N), p. 6.) Also, the parties may provide 

written questions to the review panel chair or review officer to be asked of the other party 

or witnesses at the chair's or review officer's discretion. The chair or review officer may 

exclude repetitious or irrelevant questions. (Review Procedures, § III, subd. (T)(2), p. 8.)

Here, the only witness at the hearing was Jane. There is no indication in the 

record that John suggested any witnesses. He did, however, submit written questions for 

the Panel to ask Jane.

The review panel chair or review officer may allow the complainant or any 

witness to be visually or physically separated from the respondent. (Review Procedures,

§ III, subd. (R), p. 7.) Here, a wall or screen was placed between Jane and John so they 

could not see each other during the hearing. John claims the Panel could not see Jane 

while she testified. The Regents dispute this. It is unclear from the record whether the 

wall/screen prevented the Panel from observing Jane while she testified.
38

During the actual hearing, the review panel chair begins by explaining the review 

process to the participants. The review panel then hears and receives information and 

witnesses about the incident from the university representative, including information 

directly from the complainant. The respondent then has the opportunity to provide 

information and witnesses about the incident supporting his or her perspective. Both the 

university representative and the respondent will have the opportunity to provide 

summary statements before the conclusion of the hearing. The review panel chair 

concludes the hearing by explaining the next steps. (Review Procedures, § III, subd. (T), 

p. 7.) 

Both the complainant and the respondent may be present during the entire hearing 

or may not appear at all. Also, the respondent may remain silent throughout the review 

process, and the review panel cannot infer any responsibility based on such silence.

(Review Procedures, § III, subd. (I), p. 5.)

After conducting the hearing, the review panel deliberates privately and makes a 

decision by majority vote. If the review panel determines that the respondent is 

responsible for the alleged violations by a preponderance of the evidence, then it will 

make a nonbinding advisory sanction to the relevant dean. (Review Procedures, § III, 

subd. (U)(3).) The review panel will produce a report with its findings as to each 

violation as well as the nonbinding sanction recommendation. (Review Procedures, § IV, 

p. 9.) The parties then may submit statements to the relevant dean for consideration. 

(Review Procedures, § IV, subd. (B), p. 9.) The subject dean will assign sanctions after 

considering the findings of the review panel, UCSD's sanctioning guidelines, and the 
39

respondent's student conduct record. (Review Procedures, § IV, subd. (D), p. 9.) Either 

the complainant or the respondent may appeal the determination of responsibility or 

sanctions to OSC, but, for undergraduate students, all appeals are reviewed by the council 

of provosts. (Review Procedures, § V, subd. (A)(1), p. 10.)

C. John's Claims of Unfairness

The Regents argue the superior court erred when it determined the procedures 

UCSD used under its review procedures were unfair. As we independently review the 

question of whether UCSD provided a fair hearing (see TWC Storage, LLC v. State Water 

Resources Control Bd. (2010) 185 Cal.App.4th 291, 296), we turn to John's claims that 

the hearing was unfair. John contends UCSD restricted his ability to defend himself 

resulting in an unfair hearing. Specifically, he asserts UCSD: (1) did not allow John's 

attorney to actively participate in the hearing; (2) did not allow John to cross-examine 

Jane at the hearing; (3) withheld evidence supporting the Panel's decision; and (4) 

penalized John for invoking his Fifth Amendment right against self-incrimination.

1. John's Counsel Was Not Permitted to Actively Participate During the Hearing

First, John contends UCSD unfairly restricted his ability to defend himself by not 

allowing his attorney to participate in the hearing. However, there is no authority that 

entitles John to have counsel actively participate at his hearing. (See Perlman v. Shasta 

Joint Jr. College Dist. Bd. of Trustees (1970) 9 Cal.App.3d 873, 879 [no right to counsel 

in student disciplinary proceeding]; Charles S. v. Board of Education (1971) 20 

Cal.App.3d 83, 90 [no right to counsel in academic disciplinary proceeding].) Federal 

cases agree. (See Flaim v. Medical College of Ohio (6th Cir. 2005) 418 F.3d 629, 636; 
40

Osteen v. Henley (7th Cir. 1993) 13 F.3d 221, 225-226.) John does not provide any 

contrary authority. Instead, he cites to a few cases discussing the requirement of a 

defendant's waiver of counsel in the criminal context to be knowing and intelligent.17 

These cases are not instructive here.

UCSD's Review Procedures clearly state that John was entitled to have an advisor, 

who could be an attorney, but the advisor would not be permitted to participate in the 

hearing. John could have engaged the services of a student advocate, who would have 

been permitted to speak on John's behalf at the hearing. (Review Procedures, § III, 

subd. (J), p. 5.) John declined to use one.

In addition, we observe that although John's counsel was not permitted to actively 

participate during the hearing, the counsel was heavily involved in all aspects of the 

instant matter. He communicated with Dalcourt during her investigation, providing two 

offers of proof in support of John's position. John's counsel attended the administrative 

resolution with Mallory, John, and John's father. Although John's counsel was not 

permitted to address Mallory during that meeting, John's counsel sent an e-mail to 

Mallory after the administrative resolution meeting, imploring Mallory to dismiss the 

allegations against John. John's counsel was able to assist John in submitting materials to 

the Panel prior to the hearing, including written questions for the Panel to ask Jane. 

John's counsel sat with John during the hearing and was able to advise him then. And 

John's counsel was permitted to assist John in submitting his posthearing submissions and 

 

17 Faretta v. California (1975) 422 U.S. 806, 835; People v. Burgener (2009) 46 

Cal.4th 231, 241-242; see People v. Lancaster (2007) 41 Cal.4th 50, 68.
41

his appeal to the council of provosts. Alternatively stated, John was able to retain 

counsel and that counsel was able to participate significantly throughout the process. 

That his attorney was not permitted to actively participate during the hearing does not 

give us pause that the procedures employed by UCSD, in this regard, were unfair.

We also are not persuaded by John's argument that Jakubisin acted as the advocate 

for Jane when he was supposed to be neutral. Jakubisin was the university representative. 

As such, he was tasked to present information from the OPHD Report as well as relevant 

documents supporting the alleged violations. (Review Procedures, § III, subd. (B), p. 4.) 

Jakubisin's role was explicitly set out in the Review Procedures. His role was not of a 

neutral, but as the individual at the hearing who would present evidence to prove the 

alleged violation.

Nor are we swayed by John's concern that Jakubisin and two of the Panel members 

were UCSD employees. If John had concerns about any of the Panel members' inability 

to be impartial, he could have requested he or she be removed from the Panel. He did not 

do so. Further, except for pointing out that Panel members were all UCSD employees, 

John has not offered any evidence that they were biased or otherwise unable to be 

impartial during the hearing. He has not shown actual bias or illuminated a circumstance 

" ' "in which experience teaches that the probability of actual bias on the part of the judge 

or decisionmaker is too high to be constitutionally tolerable." ' " (Today's Fresh Start, 

Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 219, citing 

Morongo Band of Mission Indians v. State Water Resources Control Board (2009) 45 

Cal.4th 731, 737.) 
42

In short, neither Jakubisin's role at the hearing nor his relationship with two of the 

Panel members supports John's argument that he was denied a fair hearing because his 

attorney could not actively participate in the hearing.

2. The Cross-Examination of Jane

Second, John claims the hearing was unfair because he was not allowed to crossexamine Jane. Indeed, John contends "UCSD completely eliminated [his] significant 

right." We find this contention an overstatement and not supported by the record. At the 

hearing, John was afforded the opportunity to question Jane through the Panel by 

submitting written questions before the hearing as well as being given the opportunity to 

submit additional questions at the conclusion of Jane's testimony. Thus, we must 

evaluate if this process rendered the hearing unfair.18

There is no requirement under California law that, in an administrative hearing, an 

accused is entitled to cross-examine witnesses. "Although 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 administrative appeal . . . must afford the [accused] an 

opportunity to confront and cross-examine witnesses." (James v. City of Coronado

(2003) 106 Cal.App.4th 905, 912.) Yet, in the instant matter, where the Panel's findings 

are likely to turn on the credibility of the complainant, and the respondent faces very 

 

18 We note that John relies on Manufactured Homes Communities, Inc. v. County of 

San Luis Obispo (2008) 167 Cal.App.4th 705 and Doe v. Brandeis University (D. Mass. 

Mar. 31, 2016) 2016 U.S. Dist. LEXIS 43499 as authority that he was entitled to directly 

cross-examine Jane during the hearing. In both of those cases, cross-examination of 

witnesses testifying against the party was completely prohibited. That is not the case 

here where UCSD's policies provided John with a mechanism by which to question Jane.
43

severe consequences if he is found to have violated school rules, we determine that a fair 

procedure requires a process by which the respondent may question, if even indirectly, 

the complainant.

Here, as we discuss above, UCSD permitted John to submit written questions to 

the Panel prior to the hearing. At least one court has suggested this very procedure to 

protect an accused's due process rights. (See Donohue v. Baker (N.D. N.Y. 1997) 976 

F.Supp. 136, 147 ["At the very least, in light of the disputed nature of the facts and the 

importance of witness credibility in this case, due process required that the panel permit 

the plaintiff to hear all evidence against him and to direct questions to his accuser through 

the panel."]; accord, Nash v. Auburn University (11th Cir. 1987) 812 F.2d 655, 664.) 

Further, we observe that there is no California or federal authority requiring an accused 

be permitted, in a disciplinary hearing, to directly question the complainant. In 

California, courts have recognized that "a full dress judicial hearing with the right to 

cross-examine witnesses [is] not required" in student disciplinary proceedings. 

(Goldberg, supra, 248 Cal.App.2d at pp. 881-882.) Further, Division 4 of the Second 

District recently explained the concerns of allowing full scale cross-examination in 

student sexual misconduct matters:

"In administrative cases addressing sexual assault involving students 

who live, work, and study on a shared college campus, crossexamination 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. It stated, 'OCR strongly discourages schools from 

allowing the parties personally to question or cross-examine each 

other during the hearing. Allowing an alleged perpetrator to 
44

question an alleged victim directly may be traumatic or intimidating, 

thereby possibly escalating or perpetuating a hostile environment.' " 

(USC, supra, 246 Cal.App.4th at p. 245, fns. omitted.)

Balancing UCSD's desire to protect victims of sexual misconduct with the 

accused's need to adequately defend himself or herself, we conclude that the mechanism 

UCSD provided John here, does not, simply as a procedural concern, cause us to question 

the fairness of the hearing. That said, UCSD's procedures permitted the Panel chair to 

screen John's written questions and only ask those she deemed were not repetitive or 

irrelevant. Thus, the Panel chair only asked nine of the 32 questions posed by John. In 

addition, John complains that the Panel chair paraphrased some of his questions and 

allowed Jane to provide short answers. We therefore analyze whether the Panel chair's 

use of the indirect cross-examination procedure during the hearing rendered the hearing 

unfair by prejudicing John.

Ostensibly, the fact that the Panel chair asked less than one-third of the questions 

posed by John gives us pause. The Regents attempt to assuage our concern by pointing 

out that the Panel chair only omitted questions that were repetitive of earlier testimony or 

irrelevant. For example, the Regents emphasize that question Nos. 13 through 19 simply 

asked Jane to admit she sent certain texts. During the hearing, the Panel chair declined to 

ask these questions, stating "Okay. I'm not asking 13. We have a copy of the texts, so we 

have read them. Same with No. 14 and 15, it looks like, through 19. We have copies of 

all of these text messages, and I have read them." Additionally, the Regents provide 

specific examples of questions that the Panel chair did not ask, but the requested 

information had already been provided. For instance, the Panel chair did not ask question 
45

No. 9 which stated, "Have you previously admitted during this investigation that prior to 

the exchange between your sorority and [John's] fraternity on the night of January 31, 

2014, you brought a change of clothes to [John's] residence with the intention of spending 

the night with him?" Apparently, the Panel chair believed that question to have been 

asked and answered because Jane had already testified during the hearing that, on 

January 31, she brought her "pajamas and stuff" to John's residence so she could "spend 

the night, which is something that [she] had done before and not had sex." In addition, 

the OPHD Report, which was presented to the Panel and constituted evidence before it, 

indicated that Jane had brought a change of clothes to John's residence on January 31 in 

case she decided to stay the night.

We independently found other examples where the Panel chair did not ask 

questions because they had already been asked or the information had been previously 

provided. For example, question No. 2 merely asked if Jane was presently enrolled at 

another college and if so where. The Panel chair did not ask that question, but, in 

response to John's first question, Jane already had stated that she remained a student at 

UCSD. Another one of John's questions not asked by the Panel chair concerned whether 

anyone else was present at the time Jane claimed John digitally penetrated her vagina on 

the morning of February 1. Again, Jane's previous testimony at the hearing and the 

OPHD Report already established this fact. Jane testified that she woke up in John's bed 

on the morning of February 1, and John kept trying to put his hands down her pants to 

touch her despite her objections. The OPHD Report cautioned that "[o]ften the only 

witnesses present during alleged incidents of sexual assault are the complainant and the 
46

respondent." There is no indication in the report that there was anyone else present when 

the nonconsensual sexual activity allegedly occurred. John makes no claim that any third 

party was present in any of his offers of proof or posthearing submissions. In other 

words, it was quite clear to everyone involved that the only two people in John's bedroom 

on the morning of February 1, 2014, were John and Jane.

We are puzzled that John did not specifically address any of the questions the 

Panel chair declined to ask. In his respondent's brief, he does not explain which of the 

questions were critical to his position or the prejudice he experienced by the omission of 

certain questions. Rather, John emphasizes that only nine of his 32 questions were asked 

and also mentions that two of them were paraphrased. Yet again, he does not explain to 

us the prejudice he experienced based on these two paraphrased questions (indeed, John 

does not even identify the two paraphrased questions). 

Also, John complains that Jane provided long narrative answers to Jakubisin's 

questions, but only provided short answers to the questions John submitted. He argues 

this underscores the inherit unfairness in the way the Panel chair asked his questions. We 

reject this contention. Jakubisin asked Jane a total of five questions, all of which called 

for narrative answers.19 In contrast, most of John's submitted questions simply asked for 

 

19 Jakubisin asked Jane: (1) "Would you please describe the events of the morning 

of February 1st in detail"; (2) "What did you tell John about your unwillingness or 

willingness to engage in sexual activity before February 1st, 2014"; (3) "In general, how 

would you characterize that John responded to you saying that you didn't want to have 

sexual activity with him? What was -- generally how did he act? What did that seem like 

to you?"; (4) What do you remember about the evening of January 31st, beginning with 

what you characterize as pregaming, and then ending with you waking up on the morning 

of February 1st"; and (5) So the report from . . . OPHD[] mentions that at some point 
47

yes or no answers. John did not submit open ended questions requiring a narrative 

answer. As such, his contention that the Panel allowed Jane to provide short answers to 

his questions is not well taken.

Although here John does not take issue with the Panel chair's omission of any 

particular question, we note that during the hearing, John expressed his concern regarding 

two questions the Panel chair did not ask. In addition, in his reply brief in support of 

petition for writ of mandamus filed with the superior court, John took issue with a few 

questions that the Panel chair declined to ask. Despite the fact we could deem these 

points waived because John did not include them in his respondent's brief, we exercise 

our discretion to take the extraordinary measure to consider these arguments because we:

(1) independently review the fairness of the hearing accorded John and (2) are concerned 

the Panel chair asked so few of John's submitted questions.

During the hearing, the Panel chair indicated that she would not ask question No. 4 

because it had "already been answered." At that point, John's attorney commented that it 

had not been answered. After the Panel chair reminded counsel that he was not permitted 

to participate in the hearing, John commented, "I object. I think it needs to be asked. It is 

very important for subsequent questions." The Panel chair reiterated that she would not 

ask the question because "it ha[d] been asked and answered."

Question No. 4, as submitted by John, read: "Your two-page typewritten Request 

for Formal Investigation dated June 16, 2014, was submitted to OPHD four days after 

 

after February 1st, you asked John if he had used a condom on January 31st, 2014. [¶] 

Could you please tell me about that communication, what was asked and why you asked 

it."
48

you initially met with Elena Dalcourt of OPHD on June 12, 2014, correct?" At the 

hearing, Jane did not testify about the timing of her submission of the Request relative to 

her first meeting with Dalcourt. Nevertheless, the evidence of this chronology was 

already before the Panel. The OPHD Report explicitly states that Dalcourt first met with 

Jane on June 12, 2014. It also states that Jane submitted the Request to OPHD on 

June 16, 2014. This report was before and considered by the Panel. In addition, John 

emphasized the same chronology in his prehearing submission to the Panel:

"Complainant's Request submitted on June 16, 2014 (not to belabor the point, but at a 

time after a written report was submitted to the UCSD Office of Student Conduct on 

June 5, 2014 and after meeting with Ms. Dalcourt on June 12, 2014) . . . ." Thus, the 

record shows that the information John sought through question No. 4 was already before 

the Panel. John does not explain how the Panel hearing Jane respond to question No. 4 in 

the affirmative would have impacted the Panel's findings and conclusions. John does not 

argue that there was any dispute as to the chronology of Jane meeting with Dalcourt then, 

four days later, submitting the Request. Further, John again stressed this chronology in 

his supplemental submission, submitted after the conclusion of the hearing, where he 

wrote: "Crucial to this issue, as set forth in . . . Dalcourt's . . . September 10, 2014 letter 

to Mr. White, is the fact that the Complainant admits to having sexual intercourse on the 

evenings of January 31, 2014 and February 1, 2014 - before and after the alleged digital 

penetration that she failed to mention in her Request submitted on June 16, 2014 (after 

meeting with Ms. Dalcourt of OPHD just four days prior)." In short, the Panel chair's 

decision not to ask Jane question No. 4 did not prejudice John whatsoever as the 
49

chronology of Jane's first meeting with Dalcourt relative to her submitting the Request 

was before the Panel in three different documents.

Also at the hearing, the Panel chair declined to ask question No. 21 because the 

Panel "already ha[d] copies of the texts." John, however, voiced his disagreement: "It's 

relevant because it shows that we were friends at the time, but it is all -- it is also worth 

noting that we did meet up in the library to do homework on several occasions." Despite 

John's protest, the Panel chair did not ask the question, informing John that he would 

have his opportunity to present evidence later.

Question No. 21 read: "In further screenshots of text messages that [John] asserts 

consists of exchanges between the two of you on April 28, 2014, is it true that you texted 

[John] at 10:05 P.M. the following: 'did you get #13 on chapter 5 for the homework' to 

which he responded, '10400' and then a few more exchanges occurred that evening 

regarding homework?"

Question No. 21 merely asked Jane to admit that she sent certain texts about 

homework to John. The only specific text in the question asked about an answer to a 

homework problem. The text says nothing about Jane and John getting together to do 

homework. Although John argued at the hearing that question No. 21 shows that Jane 

and John were friends at that time and met in the library to do homework on several 

occasions, we are not persuaded. The question only requested Jane to admit she sent the 

texts. The content of the texts was already before the Panel, and there is no indication in 

the record that Jane denied having sent the texts or that there was any question as to the 

authenticity of the texts. Thus, to the extent John wanted the Panel to infer that he and 
50

Jane were friends after February 1, 2014, from the subject texts, those texts were before 

the Panel and the Panel could have so inferred. Accordingly, John has not shown that the 

Panel chair's decision not to ask question No. 21 prejudiced him or otherwise rendered 

the hearing unfair.

In his reply brief filed with the superior court, John argues that the Panel chair 

improperly paraphrased question No. 20. Question No. 20, as submitted by John, read:

"So, approximately three months after the alleged incident of February 1, 2014, you two 

were texting each other on the evening of April 25, 2014 for purposes of planning to get 

together to pregame before some outing?"

Instead of asking question No. 20 as submitted, the Panel chair paraphrased the 

question, as part of the following exchange:

"[Panel chair]: Okay. So referring to the text messages, we have 

also read a text message from the evening on April 21st, and it was 

for purposes of planning to get together to pregame before an outing. 

Could you -- do you remember that? And if so, could you --

"[John]: It was April 25th.

"[Panel chair]: April 25th. I am sorry. That is what this states. I 

misspoke. [¶] Do you remember those texts and could you provide 

some context to us, please?

"[Jane]: I don't remember what happened on April 25th. I don't 

remember what date that was.

"[Panel chair]: Okay. I will just go ahead and read and see if this 

triggers your memory. If not, I will move on to the next question. 

[¶] Let's see. 'Hey, when should we head over to your place to 

pregame?' This was at 8:07 p.m. on Friday, April 25th. The 

response, 'Like soon, if you guys want to come or if you want to then 

head to another pregame, but we'll have rides.' Next response,

'Okay, let me talk to (student). What time are you guys leaving?' 
51

Response, 'Probably 9:00. If not, just head to (student's) pregame.' 

'9:30. Okay, is there alcohol there or do we need to bring stuff? The 

guy who usually buys --' I think it says guys, but 'Buys us alcohol is 

out of town, so we have like a third of a fifth of Captain. Ha, ha.' 

[¶] Are you remembering? Yes? Okay. Would you like me to 

continue reading the texts, or are you able to provide context to that?

"[Jane]: Yeah. We had another exchange where my friend 

(student) wanted to pregame for free alcohol, so she asked me to text 

them. And we ultimately decided not to go to the pregame because I 

didn't want to be around him, and be in that kind of atmosphere 

again.

"[Panel chair]: So just to make sure I understand, you were trying 

to get somebody to provide alcohol? That was the intent of the text?

"[Jane]: Yes.

"[Panel chair]: Okay. And was there any other reason or 

relationship you were establishing in this text?

"[Jane]: We weren't friends.

"[Panel chair]: Okay.

"[Jane]: And I didn't go over there.

"[Panel chair]: Okay.

"[Jane]: I don't know if the texts show that, but I didn't want to 

go."

Again, John's submitted question merely asked Jane to admit that she sent certain 

texts to John. Apparently, John believed the text showed that he and Jane were still 

friends on April 25, 2014. John's complaint seems to be that Jane should not have been 

able to provide context to the April 25, 2014 text, and the Panel chair's paraphrased 

question allowed Jane to do just that. As with the other texts, the Panel already had the 

subject texts in front of it. We see no problem with the Panel chair asking Jane to explain 
52

the texts. John was able to offer his own testimony regarding the subject texts if he 

wanted to do so. If he was not inclined to testify about them during the hearing, he could 

have included an explanation of the texts in his supplemental submission. He opted not 

to do so. We find no prejudice in the Panel chair paraphrasing question No. 20 and 

allowing Jane to explain the context of the subject texts.

John additionally argued that the Panel chair allowed Jane to provide an 

unresponsive answer to question No. 22. As submitted by John, question No. 22 read, 

"So, would you agree with the fact that at least up until April 28, 2014, you and [John] 

had gotten along quite well together - socially and as classmates to do homework?" John 

claimed this question "tended to refute [Jane's] false claim that she was no longer friends 

with [John] . . . ." As a threshold issue, we reject John's claim. The only way this 

question would refute Jane's "false claim" that she was not friends with John up until 

April 28, 2014 was if she answered the question in the affirmative. Based on her answer 

to a previous question where she stated that she was not friends with John and did not 

want to be around him during the April 25, 2014 timeframe, we determine that Jane 

would not have answered this question in the affirmative if the Panel chair had asked it as 

written.

Instead of asking question No. 22 as written, the Panel chair asked Jane, "Can you 

talk to us a little bit about your relationship with [John] between February 1st and then up 

until April 28th. And you have already addressed it. Is there anything else that you 

would like to add to your relationship, let's say, the months of maybe March or April?" 

Jane responded, "I don't think any communication or whatever relationship, or the fact 
53

that we were in the same class or anything, is relevant to his sexually assaulting me on 

the 31st and on the 1st. I don't know how any after-relationship changes those facts."

In response to Jane's answer, John objected and moved to strike her testimony. 

The Panel chair reminded John that they were not in a court proceeding and allowed the 

answer to stand.

In his reply brief in support of petition for writ of mandamus, John argued that the

Panel chair allowed Jane to provide an unresponsive answer. John further contended that 

this error undermined his case because he "anticipated eliciting testimony from [Jane] 

concerning the time they spent studying together in the library, again tending to refute 

her false claims that she and [John] were no longer friends and that she did not want to be 

around him." Although John intended to elicit testimony from Jane that she was friends 

with John during the period in question, we struggle to see how question Nos. 20 and 22 

would establish this fact. Question No. 20, as submitted by John, merely asked Jane to 

admit she sent certain texts to John on April 25. However, there was no dispute that she 

sent the texts, and the Panel was free to infer that the texts showed Jane and John were 

friends. However, the Panel also could infer that Jane's agreement that she sent the texts 

in response to question No. 20, by itself, would not establish that she and John were 

friends. Further, question No. 22 was a simple yes or no question asking Jane to admit 

she was friends and studied with John up until April 28, 2014. Jane had already testified 

that she was not friends with John during the April 2014 timeframe. Although John 

anticipated to elicit Jane's admission that they were friends, a single yes or no question 

trying to establish this fact was not going to carry the day, especially in light of the record 
54

and Jane's previous testimony. Thus, we conclude the Panel chair's paraphrasing of 

question Nos. 20 and 22 did not prejudice John or otherwise render the hearing unfair.

The last question John discussed in his reply brief is question No. 10. Question 

No. 10 read: "Would you agree with the fact that your first complaint wherein you allege 

that on January 31, 2014 and February 1, 2014, [John] did some things that you felt were 

wrong was when you presented a written report to the University's Office of Student 

Conduct on June 5, 2014?"

The Panel chair phrased question No. 10 as follows: "Is it correct that the first 

time you complained that [John] did some things that you felt were wrong on 

January 31st and February 1st, that the first time you complained about that was on 

June 5th? Or was there a previous time that you had complained about it?"

Jane asked for clarification, "To the school or to anyone?" The Panel chair 

replied, "However you would like to respond?" Jane then answered, "To the school, no, 

that was the first time."

In his reply brief, John argued that the Panel chair allowed Jane to provide an 

incomplete answer because Jane did not provide information on whether she made prior 

consistent statements to anyone other than university staff who could corroborate her 

claims. We disagree. The call of question No. 10 implied that John was asking about 

Jane's "first complaint" and referenced Jane's first written report on June 5, 2014. A 

reasonable interpretation of question No. 10 is that the question concerned Jane making a 

report to UCSD. Moreover, the question merely required a yes or no answer. It does not 

ask Jane to identify who she first told John allegedly assaulted her on January 31 and 
55

February 1. Nor does the question ask Jane to describe when she first complained or 

what she said. Alternatively stated, the question as submitted would have never provided 

John with the information he later claimed he was denied. Instead, at best, if Jane had 

interpreted question No. 10 as asking when she first told anyone about what occurred on 

January 31 and February 1, and she had told someone prior to her June 5, 2014 report to 

OSC, question No. 10 would have only required her to answer in the negative. John then 

would have had to submit a follow up question to find out more details. In this sense, the 

answer provided by Jane placed John in a similar situation. She believed the question to 

be ambiguous so she asked for clarification. Then she confirmed that the first time she 

complained to UCSD was her June 5 complaint. Thus, if John wanted to know if she told 

anyone before June 5 about the incidents, he would have had to submit a follow up 

question. This result is no different had John's question been read verbatim and Jane 

responded with a yes or no answer as required by the question.

In short, after clarification, Jane responded to a yes or no question posed by John. 

John's claim that he was somehow denied information that he never asked for in his 

question is not well taken. The hearing was not unfair and John was not prejudiced based 

on the Panel chair allowing Jane to answer question No. 10 in the manner she did.

John also claims he was not sufficiently permitted to cross-examine Jane because 

he could not ask her questions based on her testimony at the hearing. In other words, all 

his questions for Jane had to be submitted to the Panel before the hearing. The record 

does not support John's position. After declining to ask John's written submitted 

questions Nos. 29 through 32, the Panel chair asked John if he had any additional 
56

questions for Jane: "Any additional questions? No?" Thus, the record suggests that John 

was given the opportunity to submit questions for Jane in response to her testimony at the 

hearing, but he declined to do so. As such, we find no merit to his claim that he was not 

permitted to question Jane in response to her hearing testimony.

Additionally, in connection to his challenge of the cross-examination process, 

John implies his ability to cross-examine Jane was unfairly hampered because Jane 

testified behind a screen. In making this argument, John claims that Jane could not be 

seen by either the Panel or him. The Regents deny that the Panel was unable to view 

Jane while she testified. Further, there is no evidence in the record that the Panel could 

not see Jane while she testified. The hearing transcript does not indicate that the Panel 

could not see Jane. And John did not object at the hearing that the Panel could not see 

Jane.

The Review Procedures provide that the Panel chair may allow the complainant or 

any witness to be visually or physically separated from the respondent. (Review 

Procedures, § III, subd. (R), p. 7.) As John admits in his respondent's brief, courts have 

found allowing a complainant to testify behind a screen so he or she cannot be seen by 

the respondent limits the potential of trauma to the complainant. (See USC, supra, 246 

Cal.App.4th at p. 245, fn. 12; Gomes v. University of Maine System (D.Me. 2005) 365 

F.Supp.2d 6, 27.) The physical and visual separation of Jane from John at the hearing did 

not prejudice or otherwise hamper John's ability to cross-examine Jane to the point that it 

made the hearing unfair.
57

3. Withholding of Evidence

John next insists the hearing was unfair because UCSD withheld evidence from 

him and the Panel relied on that evidence to make its findings. John contends, "The 

common law requirements of a fair hearing do not allow an administrative board to rely 

on evidence that has never been revealed to the accused." He claims the Panel 

improperly relied on the OPHD Report, referencing it twice in its findings.

John is correct that the Panel specifically referenced the OPHD Report in making 

its findings. Specifically, the Panel noted, "Jane stated to . . . Dalcourt . . . that John 

entered Jane's vagina with his fingers a total of three times." In addition, the Panel found 

that "Dalcourt . . . conducted an investigation of this incident and found 'based upon the 

totality of the circumstances and the evidence presented, I find it more likely than not that 

on February 1, [John] ignored [Jane's] objections to sexual activity in violation of the 

Student Conduct Offense Policy.' " Both of these findings are taken from the OPHD 

Report.

John claims the Panel's reliance on the OPHD Report made the hearing unfair 

because: (1) he had no reason to believe the Panel would "render its decision based 

on . . . [the] report[;]" (2) Dalcourt did not testify at the hearing; (3) UCSD refused to 

provide John with Dalcourt's interview notes of her interviews with the 14 unidentified 

witnesses; and (4) UCSD did not give John Dalcourt's notes from her two interviews with 

Jane. We reject these contentions.

First, John's claim that he had no reason to believe the Panel would rely on the 

OPHD Report is not well grounded. The Sex Offense Policy explicitly states that an 
58

investigation of any claim would result in a written report, and "[t]he report may be used 

as evidence in other related proceedings, such as subsequent complaints, grievances, 

and/or student conduct actions." (Sex Offense Policy, § IV, subd. (D)(7), p. 8.) And, the 

Review Procedures explain how the panel will use a report from the OPHD, "the 

investigative report produced by OPHD serves as the primary fact-finding document for 

the incident." (Review Procedures, § III, subd. (T)(1), p. 7.) As such, John was on notice 

as to the importance of the OPHD Report. Indeed, in his case, UCSD proceeded on only 

one of three of Jane's claims based on the conclusions of the OPHD Report.

Moreover, the record underscores that John understood the importance of the 

OPHD Report. Before the hearing, John's counsel argued to Mallory that she should 

dismiss the remaining claim of nonconsensual digital penetration because the only 

evidence it occurred was Jane's own statements. To support his argument, John's counsel 

used the other findings in the OPHD Report that insufficient evidence existed of the two 

other charges. Put differently, John was arguing, based on the reliability of the OPHD 

Report as to the other two claims, the remaining claim could not proceed to a hearing. In 

addition, in his prehearing submission, John discussed the OPHD Report at length, 

explaining how some of the facts in the report as well as certain findings supported his 

position that no nonconsensual sexual activity occurred on February 1, 2014. In this 

sense, John was pointing the Panel to certain portions of the OPHD Report and making 

arguments based on the report. Accordingly, John's own actions and use of the OHPD 

Report belies his claim that he did not know that the Panel would rely on the report. In 
59

fact, in some instances, John's counsel seemed to be imploring the Panel to trust the 

report.

Second, we are not impressed by John's claim the Panel unfairly considered the 

OPHD Report because Dalcourt did not testify at the hearing. As we discuss above, the 

Review Procedures make it clear that the OPHD Report was to serve as the main factfinding document and the formal rules of evidence do not apply in a hearing. This 

suggests that the university representative would not ask the Panel to call Dalcourt as a 

witness. However, we find nothing in the relevant procedures and rules that prohibited 

John from calling Dalcourt as a witness. In fact, there is no indication that he attempted 

to do so although he was clearly permitted to propose witnesses to the Panel. We find 

specious John's claim that Dalcourt's failure to testify rendered the Panel's reliance on the 

OPHD Report unfair when John made no attempt whatsoever to call Dalcourt as a 

witness.

Third, we are not persuaded that the hearing was unfair because John was not 

provided with Dalcourt's interview notes from the 14 unidentified witnesses mentioned in 

the OPHD Report. Dalcourt was asked to investigate three claims on behalf of Jane: 

nonconsensual sexual intercourse on the night of January 31, 2014; nonconsensual digital 

penetration on February 1, 2014; and retaliation occurring on May 14, 2014. From the 

OPHD Report, it appears these 14 witnesses relate only to the two claims on which 

UCSD did not proceed (intercourse and retaliation). John's counsel understood this to be 

the case as he conveyed the same to Mallory: "The statements of the complainant and 

witnesses interviewed during the investigation led to a finding by the UC San Diego 
60

Office of Student Conduct that insufficient evidence existed on two of three charges. 

That being said, the only evidence of the alleged violation, which you have not yet 

dismissed but have clear and concise authority to do so, is that of the complainant's own 

statements." Therefore, we conclude John was not prejudiced and his hearing rendered 

unfair because he did not receive Dalcourt's interview notes of the 14 unidentified 

witnesses, none of whom testified at the hearing.

Fourth, although we do not find any of John's other claims about UCSD 

withholding evidence persuasive, the failure to turn over Dalcourt's interview notes from 

her two meetings with Jane gives us pause. The Regents emphasize there is no case law 

requiring disclosure of an investigator's notes. They are correct. There is no formal right 

to discovery in student conduct review hearings. (Cf. Goldberg, supra, 248 Cal.App.2d 

at pp. 881-883.) Further, courts have held that a fair hearing only requires that the 

respondent be aware of what he or she is accused of doing and the basis of that 

accusation. (See 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"].) Courts have applied the requirements 

discussed in Goss to hold "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" (Dixon v. 

Alabama State Board of Education (5th Cir. 1961) 294 F.2d 150, 159 (Dixon)) and "the 

student is entitled to . . . names of the witnesses and a statement of the gist of their 

proposed testimony" (Andersen, supra, 22 Cal.App.3d at p. 771). (See USC, supra, 246 

Cal.App.4th at p. 246.)
61

Although we are not aware of any authority that would require a university to 

provide a respondent with an investigator's interview notes of her meeting with the 

complainant, we can see, in certain circumstances, the need for such a requirement. In a 

case like the one before us, there are only two witnesses to the incident - the complainant 

and respondent. As such, a finding of responsibility will turn on who the fact finder 

deems more credible. Therefore, an investigator's notes of her interviews with the 

complainant could be critical in the respondent's ability to propose questions for the 

complainant.

That said, we are hesitant to prescribe such a bright line rule on the record before 

us, especially when John has not shown that he was prejudiced by the absence of the 

interview notes. Here, Dalcourt produced the very detailed, 15-page OPHD Report. 

Within that report, Dalcourt explained that she interviewed Jane twice: the first time on 

June 12, 2014 and the second on July 29, 2014. The OPHD Report included Dalcourt's 

description of what Jane told her about: (1) Jane's relationship with John prior to the 

incident, (2) the events of January 31, 2014, (3) the events of the morning of February 1, 

2014; (4) the events of the evening of February 1, 2014; (5) text messages about 

January 31; and (6) the alleged retaliation on May 14, 2014. There is no dispute that 

John had the OPHD Report before the hearing. In addition, he also received a copy of 

the Request. Through the OPHD Report and the Request, John was well informed about 

the substance of what Jane's testimony would be against him at the hearing. Indeed, he 
62

has not pointed to any portion of Jane's testimony at the hearing that surprised him or for 

which he was unprepared.20

Further, John used portions of the OPHD Report to argue to Mallory that the case 

should not proceed to a hearing. He also cited to the OPHD Report in submissions to the 

Panel to show Jane was not credible. John emphasized an inconsistency between the 

Request (wherein Jane did not state John digitally penetrated her vagina on the morning 

of February 1, 2014) and the OPHD Report, which stated that Jane said John had entered 

her vagina with his finger three times. He even based one of his questions to Jane during 

the hearing on this inconsistency.

John claims he needed Dalcourt's interview notes to allow him to challenge the 

OPHD Report's conclusion. To this end, he claims perhaps Dalcourt misinterpreted

Jane's statement or fabricated Jane's statement to ensure a particular conclusion. We are 

not persuaded. John's claim that Dalcourt either misinterpreted or fabricated Jane's 

 

20 John also maintains that he needed Dalcourt's interview notes because he might 

have been able to impeach Jane. For example, he asserts that the absence of the interview 

notes prevented him from discovering that Jane was arrested for public intoxication and 

her parents found out about the arrest and her previous sexual relationship with John 

before Jane ever complained to OSC. However, there is no indication in the record that 

Jane told Dalcourt about those occurrences. The OPHD Report does not include that 

information. Given the thoroughness of the report and the detailed description of Jane's 

statements, we view the absence of any mention of Jane's arrest or her parents' role, if 

any, on Jane's decision to complain to OSC as a strong indication that Jane did not 

mention those events to Dalcourt. In fact, it appears in the record that Jane first mentions 

her arrest and her parents finding out about her relationship with John in her impact 

statement to Mallory after the hearing. 
63

statement is speculative and without any basis whatsoever.21 Further, it is clear from the 

record that John did challenge the OPHD Report's conclusion about the incident of digital 

penetration.

At the hearing, John submitted one question to the Panel for Jane regarding her 

failure to mention in the Request that John had digitally penetrated her vagina. When 

questioned by the Panel about the discrepancy between the OPHD Report and the 

Request, Jane explained that by using the phrase "touch me" in the Request, she did not 

"want to get too super graphic in the [Request], but [she meant] insert his fingers in [her] 

vagina." In its report, the Panel included this discrepancy in its findings, and specifically 

found Jane was credible in her explanation.

Despite asking only one question of Jane regarding the discrepancy between the 

Request and the OPHD Report, John had other avenues he could have pursued to 

challenge the OPHD's Report. For example, he could have submitted a question to ask 

Jane if she ever told Dalcourt that John had digitally penetrated her vagina. Or even 

more directly, he could have asked Jane if he digitally penetrated her vagina without 

consent on the morning of February 1, 2014. He chose not to ask either question 

although he had the opportunity to do so. In fact, in his 32 submitted questions, John 

 

21 This claim is all the more dubious when we consider the conclusions of the OPHD 

Report. Dalcourt was tasked to investigate three claims Jane made against John. 

Dalcourt did not find sufficient evidence for UCSD to proceed on two of the three claims 

despite finding Jane credible as to one of those claims. Moreover, John's attorney relied 

on other findings and conclusions in the OPHD Report to argue to Mallory and the Panel 

that the remaining claim lacked merit. In other words, John's attorney used the OPHD 

Report when it supported John's position on the claims, but denounced it when it did not. 
64

appears to have eschewed any direct question for Jane regarding what occurred on the 

morning of February 1, 2014. 

John also could have called Dalcourt as a witness and asked her about her 

interviews with Jane. There is no indication that he attempted to have Dalcourt appear as 

a witness.

Additionally, John claims the lack of Dalcourt's interview notes harmed him when 

he appealed the Panel's decision to Mallory. He argues that in response to his appeal, 

Mallory stated, "Students often expand on the statement included in their initial 

complaints during follow up conversations . . .; I expect that is what is happened in this 

instance." John insists Mallory's response is speculative and argues the Panel must have 

speculated in reaching its findings. John is mistaken. Mallory's comments were in 

response to John's attorney requesting Mallory dismiss the remaining claim and not let 

the matter go to the Panel for a hearing. The exchange occurred before the hearing.22 

Thus, Mallory's response has no bearing on how the Panel approached its evaluation of 

the evidence at the hearing. Moreover, unlike Mallory, the Panel was able to consider 

various text messages, John's multiple written submissions, and Jane's testimony at the 

hearing. Therefore, the Panel was in a much different situation than when Mallory sent 

her e-mail to John's counsel.

In short, although we are concerned that John was not given Dalcourt's notes from 

her two interviews with Jane, on the record before us, we cannot conclude the hearing 

 

22 In his respondent's brief, John misrepresents at least three times the timing of 

Mallory's e-mail in relation to the hearing.
65

was unfair based on UCSD's refusal to provide John with those notes. The subject 

interview notes were not before the Panel. John had the very detailed OPHD Report and 

the Request as did the Panel. Jane testified at the hearing. The Panel asked her about the 

language she used in the Request. John could have submitted additional questions to 

Jane to probe the accuracy of the OPHD Report. He also could have called Dalcourt as a 

witness. Against this backdrop, John has not shown he was prejudiced by UCSD's failure 

to provide him with Dalcourt's notes of her interviews with Jane. In other words, the lack 

of Dalcourt's interview notes of Jane did not prohibit John from having a meaningful 

opportunity to present his defense. (See Southern Cal. Underground Contractors, Inc. v. 

City of San Diego, supra, 108 Cal.App.4th at p. 545.)

4. John's Invocation of the Fifth Amendment

Finally, John argues that the hearing was unfair because the Panel penalized him 

for invoking his Fifth Amendment right to remain silent. He bases his claim on the 

Panel's fourth finding: "While John stated during the hearing that he did not digitally 

penetrate Jane's vagina, he abstained from providing additional information regarding the 

incident . . . and the panel would have liked to hear more information from him."

In a criminal proceeding, a fact finder may not infer guilt from the accused's 

exercise of his Fifth Amendment against self-incrimination. (People v. Frierson (1991) 

53 Cal.3d 730, 743; Evid. Code, § 913.) Although not a criminal proceeding, UCSD 

policy also provides "the respondent may remain silent throughout the review process

and his or her silence will not be taken as an inference of responsibility for the alleged 

violations." (Review Procedures, § III, subd. (I), p. 5.)
66

During the hearing, however, John did not remain silent. Instead, the following 

exchange occurred regarding the incident on the morning of February 1, 2014:

"[Panel chair]: So we heard from the complaining witness that she 

does not recall having sex, but she felt sore and assumed, and then 

later confirmed with you, that you had sex. [¶] My question is, if 

could you please elaborate on that situation -- on that incident at that 

time, and what consent did you acquire from her?

"[John]: Can you clarify if you are talking about the morning of 

February 1st or the night of January 31st?

"[Panel chair]: You know what, for this incident let me talk directly 

to the incident when you had allegedly digitally penetrated her.

"[John]: Okay. No, we had not been amorous in the morning 

whatsoever. We had just woken up.

"[Panel chair]: So clarify that for me. Are you saying - -

"[John]: There was no touching –

"[Panel chair]: -- that it never occurred?

"[John]: No.

"[Panel chair]: No touching? Okay. [¶] Do you remember -- or 

would you like to elaborate on the conversation that you had at that 

time?

"[John]: I am asserting my 5th Amendment right and not 

responding.

"[Panel chair]: So if you had intended to digitally penetrate her, 

what -- in what form would you seek consent? Or what would 

consent look like to you?

"[John]: I am asserting my 5th Amendment right and not 

responding."
67

Here, John argues that his response to the Panel chair's question about whether any 

touching occurred on the morning of February 1 is akin to a not guilty plea. We disagree 

with that characterization. A plea in a criminal case simply involves a defendant saying 

"not guilty" to a particular charge. That defendant does not state why he or she is not 

guilty or provide any detail to support his or her plea. In contrast, John's response at the 

hearing offered details about what occurred the morning of February 1. Jane had testified 

that John kept trying to move her underwear so he could insert his finger in her vagina. 

Further, Jane testified that John did so despite her clear indication that she did not 

welcome the contact. The OPHD Report offered the conclusion that John had digitally 

penetrated Jane's vagina three times without consent. John, however, offered a new 

narrative regarding the morning of February 1. According to John, the couple was not 

amorous and there was no touching whatsoever. Alternatively stated, John's response is 

not analogous to a not guilty plea where it would be unclear what had occurred between 

Jane and John on that morning. The Panel was not left to wonder if John was denying 

any responsibility because Jane had given consent or Jane was unclear in the manner she 

conveyed that she was unwilling to engage in any sexual activity. Instead, John explicitly 

informed the Panel that no touching occurred. We struggle to contemplate how John's 

response cannot be viewed as testimony about the incident.

Having concluded that John did offer some testimony about the incident on the 

morning of February 1, we next consider what inference, if anything, the Panel could 

draw based upon John's refusal to respond to additional questions about what occurred on 

the subject morning. Both parties agree that, in the criminal context, a defendant may not 
68

selectively invoke the Fifth Amendment to avoid cross-examination. (See Mitchell v. 

U.S. (1999) 526 U.S. 314, 322 ["The illogic of allowing a witness to offer only selfselected testimony should be obvious even to the witness, so there is no unfairness in 

allowing cross-examination when testimony is given without invoking the privilege."]; 

see Jenkins v. Anderson (1980) 447 U.S. 231, 236, fn. 3 ["[A] defendant who takes the 

stand in his own behalf cannot then claim the privilege against cross-examination on 

matters reasonably related to the subject matter of his direct examination."].) " 'A 

defendant who takes the stand to testify in his own behalf waives the privilege against 

self-incrimination to the extent of the scope of relevant cross-examination. [Citations.]

"It matters not that the defendant's answer on cross-examination might tend to establish 

his guilt of a collateral offense for which he could still be prosecuted." ' " (People v. 

Coffman and Marlow (2004) 34 Cal.4th 1, 72.) Further, a trial court may strike a 

witness's testimony if he wrongfully refuses to undergo cross-examination. (See Frost v. 

Superior Court (2000) 80 Cal.App.4th 724, 735.)

Here, after John testified that there was no touching between he and Jane on the 

morning of February 1, the Panel chair asked John follow up questions, seeking more 

context for John's statement. John, however, refused to answer the follow up questions. 

The hearing was not a criminal trial in a court of law, and the Panel chair had no means 

by which to compel John to answer the additional questions. In addition, the Panel chair 

did not strike John's testimony. That said, we see nothing improper about the Panel 

considering John's refusal to answer questions that would provide additional context to 

support his statement of what occurred as having some bearing on his credibility. In fact, 
69

in a case such as this where the Panel would have to weigh the credibility of the 

complainant and the respondent, it is "illogical" to allow John to state his version of the 

incident, but refuse to respond to additional questions about his position, and not have the 

Panel be able to consider John's refusal as impacting his credibility.

In addition, we observe John's limited testimony regarding what occurred on the 

morning of February 1, 2014 and then his invocation of the Fifth Amendment in response

to additional questions is emblematic of how he presented his version of events

throughout the investigation and through the conclusion of the hearing. When Dalcourt 

began to investigate Jane's claims, John would not talk to Dalcourt, but instead, 

communicated through counsel. John's counsel informed Dalcourt that John would be 

invoking his Fifth Amendment right to remain silent, but then John's attorney made an 

offer of proof, which, in addition to screen shots of texts, included a narrative of John's

potential testimony if he was required to testify at the hearing. This offer of proof stated 

that John and Jane "physically felt each other" in the car on the way to the January 31 

party. When Dalcourt asked John's counsel to explain what this phrase meant, John's 

counsel would not provide a substantive answer, but instead, objected on Fifth 

Amendment grounds. In addition, when Dalcourt asked John's counsel if any touching 

occurred between John and Jane on the morning of February 1, 2014, counsel objected 

that the term "touching" was vague and ambiguous and did not provide a substantive 

response.

Notably, in John's first offer of proof, there was no information provided regarding 

what occurred on the night of January 31, 2014, and the morning and night of February 1, 
70

2014. In fact, the offer of proof just indicated that John and Jane kissed in his bedroom 

on the night of January 31 as well as in Jane's bedroom on the night of February 1. There 

was no mention of intercourse. John's prehearing submission to the Panel echoed this 

limited narrative. At the hearing, John offered no evidence about what occurred in his 

bedroom on the night of January 31. However, after the hearing concluded, John 

provided the Panel with a supplemental submission wherein he asserted he and Jane had 

consensual sexual intercourse on January 31. We note that there was no evidence in the 

record to support this assertion. John provided no supporting evidence before or during 

the hearing that he and Jane engaged in consensual sexual intercourse on January 31. 

The OPHD Report mentioned some texts by John wherein he indicated the sexual 

intercourse was consensual, but Dalcourt stated, "Without an opportunity to interview 

[John], I was unable to assess his credibility in his apparent assertion (as evidenced

through text messages) that he obtained consent for sexual activity." Only after the 

hearing concluded and no further questions could be asked of John, did he take the 

position that he and Jane had consensual sexual intercourse on January 31. Such a 

description of what occurred on the night of January 31 differed greatly from Jane's 

testimony that she was blacked out and could not have given consent. And by waiting 

until the hearing was over, the Panel had no means to question John on his claim that he 

and Jane engaged in consensual sexual intercourse. In other words, the Panel could not 

test John's credibility on this point as well.

Further, in John's appeal to the council of provosts as well as his memorandum in 

support of his petition for writ of mandamus, John again took the position that he and 
71

Jane had consensual sexual intercourse on January 31. As we observe above, there was 

no evidence in the record to support this assertion.

In short, John provided some evidence to support his position, including limited 

testimony about the incident. However, he refused to provide answers to follow up 

questions or otherwise supply further evidence to support his version of what occurred. It 

is clear that John selectively invoked the Fifth Amendment, and the Panel properly could 

consider his refusal to provide more information as bearing on John's credibility.

E. Conclusion

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

private universities." (USC, supra, 246 Cal.App.4th at p. 245.) The parties have not 

cited to any case that clearly delineates specific requirements. Instead, the cases suggest 

general guidelines (see Goss, supra, 419 U.S. at p. 582; Andersen, supra, 22 Cal.App.3d 

at p. 771) or recommend a specific fix for a particular shortcoming (see Donohue v. 

Baker, supra, 976 F.Supp. at p. 147).23 The Fifth Circuit set forth somewhat

comprehensive parameters in the event a student is facing disciplinary sanctions:

"[T]he 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 

 

23 Here, it appears UCSD employed the very cross-examination technique (questions 

from the respondent to the complainant directed through the panel) suggested by the 

court in Donohue v. Baker, supra, 976 F.Supp. at page 147.
72

in a case of misconduct of this particular type, we feel that the 

requirements of due process of law will have been fulfilled." 

(Dixon, supra, 294 F.2d at p. 159.)

We have considered these cases in evaluating UCSD's procedures here. UCSD 

created a process by which claims of improper sexual activity are investigated. During 

the investigation, witnesses are interviewed and both the complainant and the respondent 

are asked for information and may submit to interviews. At the end of the investigation,

a report is produced, which is provided to the complainant, the respondent, and the 

relevant dean. If the report finds that the respondent is responsible for some misconduct, 

the dean invites the respondent to meet with her to ascertain if the respondent will accept 

responsibility. If the respondent does not, the matter proceeds to a hearing before a 

panel. At the hearing, UCSD offers witnesses, including the complainant, and other 

evidence. The respondent is permitted to submit questions for the complainant through 

the panel. The panel asks complainant the submitted questions, but may omit irrelevant 

or repetitive questions. The respondent then is permitted to have witnesses testify on his 

behalf and present other evidence. Toward the end of the hearing, the university 

representative and the respondent each may make a closing statement.

After the conclusion of the hearing, the panel issues a written decision, including 

recommended sanctions if necessary, and forwards the decision to the relevant dean, the 

complainant, and the respondent. The complainant and the respondent are then permitted 

to provide the dean with impact statements before the dean sanctions the respondent. 

After the dean announces the sanctions, the respondent may appeal the panel's decision as 

well as the sanctions to the council of provosts.
73

UCSD's procedure is not perfect. We have particular concerns in a case like the 

instant matter where there are allegations of sexual misconduct and/or assault and the 

determination of responsibility rests almost entirely on a credibility contest between the 

complainant and respondent. In such a case, no doubt the university would want to 

provide a procedure that both punishes and curbs violations of the Sex Offense Policy, 

but also attempts to be fair to both the complainant and the respondent. Here, we are 

concerned that the procedure employed by UCSD has great potential to be unfair to a 

student accused of violating the Sex Offense Policy. Most troubling would be the limits 

placed on the respondent's opportunity to cross-examine the complainant, especially in 

response to the complainant's hearing testimony. In addition, we are perturbed by a 

procedure that also prohibits a respondent from receiving all information that may have a 

bearing on the complainant's credibility (e.g., Dalcourt's notes of her interviews with 

Jane, Jane's June 5, 2014 report). That said, on the record before us, we cannot say that 

the procedure used by UCSD violates due process. Further, it appears that UCSD did 

provide John with "a full opportunity to present his defenses." (Andersen, supra, 22 

Cal.App.3d at p. 771.) The record indicates, however, that John chose not to utilize the

opportunities he was provided.

For example, after John's counsel corresponded with Dalcourt regarding her 

investigation, Dalcourt asked counsel to suggest any witnesses that could be helpful. 

There is no indication in the record that counsel did so.

In regard to his ability to cross-examine Jane at the hearing, John claims UCSD 

"completely eliminated" his "significant right." The record undermines this point. He 
74

was permitted to submit questions to the Panel chair. He did so and questions that the 

Panel chair believed were not repetitive or irrelevant were asked.24 Importantly, the 

Panel chair asked John if he had any additional questions at the hearing, and John 

declined to submit any. 

At the hearing, the Panel chair offered John the opportunity to present information 

and witnesses to support his perspective of the incident. John declined to do so and 

invoked his "5th Amendment right to not respond." Although John did not have to 

supply any information or witnesses, and surely did not have to testify, we note that he 

had the opportunity to do so. Moreover, he did not call any witnesses whatsoever. He 

could have done so while remaining silent. For example, in his statement to Mallory, 

John referenced that "girls in [Jane's] sorority assured me she wouldn't get way with this"

(wrongfully accusing him of digitally penetrating her vagina without consent). Such a 

statement suggests that some of the members of Jane's sorority believed Jane was lying 

about the incident on the morning of February 1. If John was being truthful in his 

statement to Mallory, it begs the question why John did not call any of these individuals 

as witnesses to challenge Jane's credibility. There is no indication that UCSD prohibited 

him from doing so.

Also, at the hearing, John indicated that a certain text showed that he and Jane 

were friends after the incident and met up in the library to do homework on several 

occasions. We note that the specific text referenced at the hearing only indicated that 

 

24 As we discuss above, the Panel chair only asked nine of the 32 questions John 

proposed. John, however, did not explain how the omitted questions prejudiced him or 

otherwise rendered the hearing unfair.
75

Jane and John were texting each other about a certain homework problem. John could 

have offered a witness to testify that he saw John and Jane in the library studying or 

could offer some testimony supporting John's position that they were friends. He did not 

do so.

John offered limited testimony at the hearing that there was no touching on the 

morning of February 1, but refused to provide any more information about that morning. 

Although he selectively invoked the Fifth Amendment, he could have provided additional 

testimony to bolster his position and credibility. He declined to do so.

During the hearing, the Panel Chair asked John what "particular part of [his] 

statement or the documents that [he] ha[d] provided" "would [he] like [the Panel] to focus 

on[.]" John did not focus the Panel to any specific statement or document, but instead, 

conveyed, "Everything that I ha[ve] submitted is relevant and should be considered." 

At the hearing, John was given the opportunity to give a closing statement. He 

avoided this opportunity as well.

In short, John was provided an opportunity at the hearing to present his version of 

events. He attempted to do so, but he neglected to call any witness to support his position 

and selectively invoked the Fifth Amendment. He did not point the Panel to any 

particular document or portions of his prehearing submission. It appears from the record 

that John believed Jane would not be credible because he and Jane were involved in a 

romantic relationship and engaged in consensual sexual intercourse on the night of 

February 1, 2014. Additionally, at the conclusion, John submitted a supplemental 

submission where he took the position, for the first time, that he and Jane engaged in 
76

consensual sexual intercourse on January 31, 2014. We note that John offered no 

comment on any sexual intercourse occurring on January 31 in his offers of proof or his 

prehearing submission. Also, there is no information or evidence in the record that the 

January 31 sexual intercourse was consensual. Apparently, John believed that his claim 

that he and Jane engaged in consensual sexual intercourse on January 31 and then 

February 1 would further undercut Jane's credibility that nonconsensual touching 

occurred on the morning of February 1. That said, except for a self-serving assertion in a 

posthearing submission, John provided no evidence or other information to support his 

claim that the sexual intercourse on January 31 was consensual. Indeed, he avoided that 

topic altogether before and during the hearing.

In the end, the Panel had to make a credibility determination between Jane and 

John. It believed Jane. John was given a full opportunity to present his defenses. 

(Andersen, supra, 22 Cal.App.3d at p. 771.) The fact that John's strategy did not prove 

successful does not undermine the fairness of the hearing, especially here where John did 

not take advantage of the opportunities presented to him.

IV

SANCTIONS

The Regents argue the superior court erred when it found UCSD abused its 

discretion in imposing sanctions on John. We agree. 

We review the penalty imposed by an administrative body for an abuse of 

discretion. (Landau v. Superior Court (1998) 81 Cal.App.4th 191, 218.) This court 

cannot "substitute its discretion for that of the administrative agency concerning the 
77

degree of punishment imposed." (Ibid., italics omitted.) Moreover, "[i]t is only in the 

exceptional case, when it is shown that reasonable minds cannot differ on the propriety of 

the penalty, that an abuse of discretion is shown." (Deegan v. City of Mountain View

(1999) 72 Cal.App.4th 37, 47.)

After the hearing, the Panel recommended several sanctions for John: 

(1) suspension for one quarter; (2) a permanent no contact order with Jane; (3) a two-hour 

sex offense/sexual harassment training with OPHD; and (4) counseling assessment. The 

Panel's recommendation was forwarded to Mallory for consideration. Upon reviewing 

the Panel's report, Jane's impact statement, John's posthearing statement, John's student 

conduct record, and UCSD's sanctioning guidelines, and "after careful and deliberate 

review," Mallory imposed the following sanctions: (1) a year suspension; 

(2) nonacademic probation for the duration of John's tenure as an undergraduate student 

at UCSD; (3) counseling assessment; (4) a meeting with a member of the OPHD to 

discuss the Sex Offense Policy; (5) attendance at an ethics workshop at a cost of $50 to 

John; and (6) a permanent noncontact order with Jane. John appealed the sanctions to the 

council of provosts and submitted a pleading in support of his appeal as well as most of 

the documents contained in the administrative record. The council of provosts increased 

the length of John's suspension to a year and a quarter, but kept the remaining sanctions 

as Mallory prescribed.

The superior court found that the sanctions were an abuse of discretion because 

the sanctions were increased each time John appealed. Specifically, the court determined 

that Mallory increased the Panel's sanctions without sufficient explanation when John 
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appealed and then the council of provosts did the same with John's final appeal. In his 

respondent's brief, John argues the superior court was correct and repeats the 

characterization that he appealed the Panel's sanctions as well as those "increased" by 

Mallory.

Initially, we observe that both the superior court and John mischaracterize the 

Panel's and Mallory's role in dispensing the sanctions. It is clear from UCSD's 

procedures that the Panel lacks any authority to actually sanction John. It merely makes 

"non-binding advisory sanction recommendations to the relevant Dean." Thus, the 

Panel's "sanctions" were not appealed to Mallory in this case. As the "relevant Dean,"

Mallory is the individual at UCSD with the authority to sanction John in the first 

instance. (Review Procedures, § IV, subds. (A)-(D), p. 9.) Here, Mallory acted per the 

applicable UCSD procedure and sanctioned John. 

Nevertheless, John argues that it was an abuse of discretion for Mallory to fail to 

explain the reasoning behind the sanctions. We disagree. In the correspondence 

informing John of his sanctions, John received an explanation regarding what Mallory 

considered in arriving at the sanctions: "Dean Mallory reviewed the Hearing Report, 

applicable statements submitted by both parties, your student conduct record, and the 

University's Sanctioning Guidelines . . . ." Put differently, it appears that Mallory 

reviewed the relevant materials to make sure that the Panel found that John violated the 

Student Conduct Code by engaging in sexual misconduct. Having found that he had, she 

then proceeded to sanction John, considering the parties' respective statements and John's 

conduct record. In addition, John appears to ignore that under UCSD's sanctioning 
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guidelines, the minimum suspension for sexual misconduct is one year. (See Sanctioning 

at UC San Diego, updated October 3, 2014, § V, p. 3.) This is precisely the length of the 

suspension John received from Mallory.

We are not persuaded by John's argument that the one-year suspension was an 

abuse of discretion because he did not actually commit sexual misconduct. This 

argument is merely a rehash of John's challenge that substantial evidence does not 

support the Panel's substantive findings. As we determine above, the evidence supports 

the Panel's finding that John committed sexual misconduct. We thus summarily reject 

John's argument that he could not be punished under the applicable sanctioning 

guidelines because he did not actually commit sexual misconduct. 

John also challenges the council of provosts increasing the length of his 

suspension by one quarter after he appealed the matter to the council. However, the crux 

of John's challenge is contingent on his initial argument that it was an abuse of discretion 

for Mallory to "increase" his sanctions. Mallory did not increase the sanctions because 

she was the individual with the authority to sanction John in the first instance. Because 

we reject John's foundational argument against his sanctions, he essentially asks us to 

find the increase of his suspension by one quarter after his appeal to the council of 

provosts was an abuse of discretion because the council was punishing him simply for 

exercising his right to appeal. However, on the record before us, we cannot say that 

"reasonable minds cannot differ on the propriety" of this sanction. (Deegan v. City of 

Mountain View, supra, 72 Cal.App.4th at p. 47.) 
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Although the council of provosts did not provide a reasoned explanation for 

increasing John's suspension, we do not have to scour the record to find possible 

justifications for the slight increase. For example, in John's posthearing statement to 

Mallory, which he provided to the council of provosts as part of his appeal, he did not 

take responsibility for the sexual misconduct the Panel found he committed. Instead, 

John maintained that he never touched Jane on the morning of February 1 and pointed out 

that he was "too smart to even consider sexually violating a woman due to the resulting 

potential criminal implications, the threat of academic termination, and ultimately a 

destroyed future." John also repeatedly attacked Jane. He claimed she falsely accused 

him for her "own sick enjoyment." John insisted Jane had "suspect" and "malicious

motives" and "impulsively and carelessly fabricat[ed] lies and dup[ed] school officials." 

John suggested Jane's religion and/or parents played a role in her false accusations 

against him: "I strongly believe that these allegations stem from an internal religious 

conflict resulting from her own regretful decision to lose her virginity, or just as likely, 

she had parental pressure to report sexual allegations when they found out she was no 

longer a virgin. Either of these possibilities, undoubtedly coupled with her twisted 

psyche, fueled her complaint." John additionally stated that Jane was "a scorned girl"

who "defame[d]" him. 

It is reasonable that the council of provosts could have viewed John's comments as 

being made by someone who did not show the proper amount of remorse or concern. We 

realize that John believed he was innocent, but the Panel found otherwise and John's 

arguments did not convince the council of provosts that the Panel was mistaken. Thus, to 
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the council, John had committed sexual misconduct and was utterly unrepentant. 

Moreover, not only did he express no compunction, but he then repeatedly berated the 

victim. Under this scenario, we cannot say that no reasonable mind would have believed 

that a quarter increase of John's suspension was warranted. Accordingly, we conclude 

the sanctions provided here were not the product of an abuse of discretion.

DISPOSITION

The judgment is reversed. The matter is remanded to the superior court with 

orders for the court to enter an order denying the petition for writ of mandamus as well as 

entering a judgment in favor of the Regents. The Regents are awarded their costs on 

appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

IRION, J.