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

Opinion

HUFFMAN, Acting P. J.

John Doe and Jane Roe 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 (Student Conduct Code). 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 complaint in which the 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.

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.

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 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 had sex the night before, but she did not remember engaging in sexual intercourse. 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 I guess I did my job right.” Evidence in the record indicates that John penetrated Jane’s vagina three times with his finger.

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 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 had 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.”

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 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. 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 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;[]

“2) An alleged violation of the Sex Offense Policy on the morning of February 1st, 2014, involving digital penetration without consent; and

“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). 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 Policy by retaliating against Jane.

However, in regard to the incident on the morning of February 1, 2014, Dalcourt concluded: “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 objechons, 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 resoluhon of the alleged violahons. 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 unhl he received the OPHD Report.

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 potenhal ruination of [John’s] future

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

‘T 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’ [Vc] 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.

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 the effective consent of the other person and is intentional.” (Sex Offense Policy, § II, subd. A, p. 3.) 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 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, § II, subd. A, p. 3, boldface omitted.)

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. 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. Of the 32 questions proposed by John, the Panel chair only asked nine of them. However, after asking the nine previously submitted 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 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.” (Original italics, boldface & underscoring.) 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.[] Further, Complainant’s 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.

Both Jane and John then submitted statements to be considered by the appropriate dean (in this instance, Mallory). 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.

On January 13, 2015, 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’s 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. 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 and failing to proceed in a manner required by law; UCSD’s decision was not supported by the Panel’s findings; 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.

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 Code 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.

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 [189 Cal.Rptr.3d 619].) “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 [188 Cal.Rptr.3d 655].)

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.)

We review the fairness of the administrative proceeding de novo. (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482 [22 Cal.Rptr.3d 772].) “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 [167 Cal.Rptr.3d 148].) 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 [178 Cal.Rptr.3d 62] (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 University of California (2013) 216 Cal.App.4th 1474, 1489 [157 Cal.Rptr.3d 630] (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 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 [128 Cal.Rptr.2d 514].) “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 [73 Cal.Rptr.2d 695] [“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 [263 Cal.Rptr. 597].) 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 [34 Cal.Rptr.2d 26]), 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 [122 Cal.Rptr. 79, 536 P.2d 479]).

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, § II, subd. A, p. 3.) Further, the Sex Offense 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, § II, subd. 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, § II, subd. 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, § II, subd. 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 penetrated 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 penetrate 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, § II, subd. 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.l, p. 7; see Goldberg v. Regents of the University of California (1967) 248 Cal.App.2d 867, 883 [57 Cal.Rptr. 463] (Goldberg) [“Clearly, there is no merit in the contention that plaintiffs were deprived of procedural due process because the Committee 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 that 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, § IV, subd. D7, 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.l, 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, 253 [200 Cal.Rptr.3d 851] (‘“Hearsay evidence that contradicts all firsthand accounts of what occurred is not substantial evidence”). That case is not instructive here.

In Doe v. University of Southern California, supra, 246 Cal.App.4th 221, the issue was whether the University of Southern California (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 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 [29 Cal.Rptr.2d 191].) 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’ [s/c] 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, 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.

Ill

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 parties of the pendency of the action . . . and an opportunity to present their objections.’ ” (Doe v. University of Southern California, supra, 246 Cal.App.4th at p. 240, quoting Bergeron v. Department of Health Services (1999) 71 Cal.App.4th 17, 24 [83 Cal.Rptr.2d 481].) 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 [42 L.Ed.2d 725, 95 S.Ct. 729] (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. “ ‘[Procedures 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, 770 [99 Cal.Rptr. 531] (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, fns. omitted.)

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 federal 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 [133 Cal.Rptr.2d 527].)

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 forwarded to OPHD for investigation. 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, “[biased 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 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, but, at times, a student will serve as a panelist. (Review Procedures, § III, subd. A.l, 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 fife (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.

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.

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 advisor