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Date: 10-11-2018

Case Style: John Doe v. The Regents of the University of California

Case Number: B283229

Judge: Gilbert, P.J.

Court: California Court of Appeals Second Appellate District Division Six on appeal from the Superior Court, County of Santa Barbara

Plaintiff's Attorney: Arthur I. Willner

Defendant's Attorney: Jonathan Dengler Miller and Alison M. Bernal

Description: Due process - two preeminent words that are the lifeblood
of our Constitution. Not a precise term, but most everyone knows
when it is present and when it is not. It is often most
conspicuous by its absence. Its primary characteristic is fairness.
It is self-evident that a trial, an adjudication, or a hearing that
may adversely affect a person’s life must be conducted with
fairness to all parties.
Here, a university held a hearing to determine whether a
student violated its student code of conduct. Noticeably absent
was even a semblance of due process. When the accused does not
receive a fair hearing, neither does the accuser.
John Doe (John) was suspended from the University of
California, Santa Barbara (UCSB) for eight quarters (two years)
because he was found guilty of sexual misconduct in violation of
UCSB’s Student Conduct Code. He appeals the superior court’s
decision denying his petition for a writ of administrative mandate
to compel UCSB to rescind his suspension. (Code Civ. Proc.,
§ 1094.5, subd. (g).)
John was denied access to critical evidence; denied the
opportunity to adequately cross-examine witnesses; and denied
the opportunity to present evidence in his defense. UCSB denied
John a fair hearing. We reverse.
John Doe and Jane Roe (Jane) were undergraduate
students at UCSB. On the night of June 26, 2015, Jane attended
a birthday party for John’s girlfriend (eyewitness one) that was
held in the apartment John shared with eyewitness one and
another roommate (eyewitness two). Jane was intoxicated and
decided to lie down under the covers on a mattress against the
living room wall.
John returned home also intoxicated and wanted to lie
down. Eyewitness one told him to lie down on the mattress for a
nap because they were going to the beach later. He lay down
fully clothed on top of the covers facing the wall with his back to
Jane. Eyewitnesses one and two were talking, sitting on the
couch, approximately two-and-a-half feet away.
Jane alleged that while she was asleep on the mattress,
John sexually assaulted her. She alleged he aggressively fondled
and sucked her breasts while she was in an incapacitated state
and unable to consent; removed the bottom half of her clothing;
and penetrated her vagina and anus with his fingers and/or penis
without her consent.
On June 28, 2015, two days after the alleged assault, Jane
was medically examined by the Santa Barbara County Sexual
Assault Response Team (SART). She reported the sexual assault
to campus police, but declined to divulge the identity of the
suspect or location of the sexual battery. On June 30, 2015,
Jane’s complaint was sent to UCSB’s Title IX office. The office
attempted to contact Jane for further information, but she did not
respond and the file was closed.
One month later, on July 31, Jane informed campus police
that she wished to proceed with her complaint. On August 3,
2015, the Title IX office initiated an investigation.
On September 16, 2015, the Office of Judicial Affairs (OJA)
notified John that he was being placed on interim suspension
pending an investigation into the incident, and was not allowed
on campus or permitted to live in UCSB housing.
John contested the interim suspension and denied that he
assaulted or had sexual contact with Jane. He attended an
informal hearing with Suzanne Perkin, the assistant dean of
students, on September 29, 2015. At that time, he submitted a
statement to the OJA, as well as eyewitness statements and
photographs to support his claim that he had not committed any
of the alleged acts. On October 1, 2015, Perkin e-mailed campus
police Detective Dawn Arviso to “reconfirm that there is physical
evidence of an assault in this case.” The detective replied by
e-mail that “[t]he SART report states ‘bruising and laceration
noted in anal area.’” The detective, however, did not provide the
SART report to Perkin. The detective’s e-mail about the SART
report was not disclosed to John or his counsel until several
months later. Therefore, John could not respond to the SART
report while attempting to contest his interim suspension. On
October 5, 2015, the vice chancellor consulted with Perkin and
then upheld John’s interim suspension with modifications.
According to UCSB, the Santa Barbara County Sheriff’s
Department requested that the Title IX office place its
investigation on hold from November 4, 2015, to December 15,
It was not until May 17, 2016, nearly a year after the
alleged assault, that the Title IX office concluded its investigation
and issued a report finding Jane’s claims were substantiated.
The investigation took 173 working days (nearly 10 months) from
the date the investigation was initiated (August 3, 2015) to the
date the report was issued (May 17, 2016), excluding the time the
investigation was placed on hold.
UCSB’s written policies require prompt investigation of
complaints for sexual harassment and sexual violence. (U.C.
Policy - Sexual Harassment & Sexual Violence (2014)
§ (V)(B)(4)(g) [“The investigation shall be completed as promptly
as possible and in most cases within 60 working days of the date
the request for formal investigation was filed. This deadline may
be extended on approval by a designated University official”
(italics added)].) The record does not reveal the reason for the
delay here.
UCSB charged John with violating sections 102.08 and
102.09 of UCSB’s Student Conduct Code. Section 102.08
prohibits “[p]hysical abuse, sexual assault, threats of violence, or
other conduct that threatens the health or safety of any persons.”
Section 102.09 prohibits conduct amounting to sexual

1 The administrative record does not include documentation
of any such request by the sheriff’s department.
harassment. Violations of the Student Conduct Code that
warrant a suspension or dismissal from UCSB are heard by the
Sexual/Interpersonal Violence Conduct Committee (Committee).
On June 29, 2016, one year after the alleged conduct, John
was notified that a hearing before the Committee was scheduled
for July 12, 2016, to determine if he had violated the Student
Conduct Code. John was notified that he had until July 11, 12
days later, within which to submit any information he wanted
the Committee to review, along with the name and contact
information of any witnesses. His witness list and information
would be combined with the initial incident report, the Title IX
officer’s investigation notes and report, and UCSB’s internal
correspondence and notifications to the parties to create the
“hearing packet.” John was advised that if he wished to review
the hearing packet in advance of the hearing, he could make an
appointment to review it with the director of judicial affairs in
her office prior to the hearing, or he could review it at the
On July 6, 2016, John submitted his list of exhibits,
evidence, and witnesses for the hearing. Jane submitted no
witness information or evidence at that time.
On the afternoon of July 11, 2016, the day before the
scheduled hearing, the Committee Chair continued the hearing to
August 16, 2016, “to ensure all requested information is
gathered, made available for review in a timely manner to all
parties prior to a hearing, and available for review by the
[Committee] during the hearing.” John objected to the
continuance, explaining that he and his witnesses had already
made travel arrangements. He stated that rescheduling created
a hardship and prejudiced his defense; his key witness
(eyewitness one) would be studying abroad after July 26th and
would be unable to attend the hearing. The OJA overruled his
objection, explaining the Committee had “the right to postpone
the hearing for a reasonable period of time to allow consultation
with University General Counsel.”
Prior to the August 16th hearing, Jane submitted her list of
witnesses and two documents -- the cover page of her SART
report and a second SART document that listed her current
medications. John submitted a list of witnesses, detailed
declarations from his roommates (eyewitnesses one and two),
photographs of the living room, and the report of a polygraph
On August 16, 2016, a two-member Committee conducted a
hearing to determine if John had sexually assaulted Jane in
violation of the Student Conduct Code.
Testimony at the Administrative Hearing
Our review of the evidence is hindered by the state of the
administrative record. The Student Conduct Code requires the
OJA or UCSB’s general counsel to audio record the proceeding
and keep summary minutes of the hearing. (UCSB Student
Conduct Code, § D, subd. 1.(d)(2)(c)(iv).) Nothing in the
administrative record indicates an audio recording of the
proceeding was made, and there is no transcript of the hearing.
The minutes of the hearing included in the administrative record
set forth the testimony, but are replete with redactions and
ellipses. This court, therefore, is unable to determine whether
portions of the testimony were omitted from the minutes.
Jane explained that she was good friends with John and
eyewitness one and had spent the night at their apartment many
times. She testified that on the night of the incident, she drank
wine and mango margaritas, played beer pong, and “hung out” in
the living room with the eyewitnesses and others attending the
party. At some point, she felt “pretty drunk” and decided to lie
down on the mattress of the bottom bunk bed situated against
the wall in the living room. The bottom bunk had a full size
mattress and was barely three feet from the couch. Eyewitness
one lent Jane pajamas and she lay on her side under the covers
facing the back of the couch. The room was well lit and quiet.
Several lamps were on and no music was playing.
Jane testified that, as she was sleeping in the bunk bed,
“an intense, throbbing pain jerked [her] out of [her] sleep.” She
felt her “shirt scrunched up to her neck” and could tell her
“stomach and breasts were exposed.” She was “completely
disoriented and unsure where [she] was or who was touching
[her].” She said she “feared for [her] life, not knowing when this
person would stop.” She stated she “started to panic . . . yet [she]
was frozen, paralyzed.” She “pretended to be asleep [so] this
person would eventually leave [her] alone.” Jane testified that
she could hear two people sitting on the couch next to her. She
opened her eyes and realized she was in the living room. She
said the two people on the couch were immersed in deep
conversation. Jane said, “I resumed to act as though I was
asleep. The sucking and biting went on for several minutes. . . .
[H]e unhooked my bra; I realized this wasn’t going to end.” She
heard the click of a cell phone camera and believed her assailant
was taking photos of her naked breasts.
Jane testified that her assailant pulled her shirt down to
cover her breasts and then pulled the blanket over to cover her.
She wondered if she should yell out for attention in the hope that
someone would hear her. She rolled over onto her back and the
assailant briefly stopped. She then felt “fingers penetrating [her]
vagina and anus.” Eventually, the person assaulting her got up
and she realized it was John. She said she was in a complete
state of shock and disbelief that a good friend was assaulting her.
Jane said that John returned to the bed and the assault
continued. Jane did not want a confrontation and did not want
anyone to know. She felt pain in her anus again, “worse pain
that [she] felt in [her] life.” She started to mumble, hoping it
would appear she was talking in her sleep. Eyewitness one came
over to check on her. Jane stated she told eyewitness one “in
French that [she] did not feel good and wanted to go home.”
Eyewitness one got Jane water and then returned to the couch.
Jane stated her “attempt at being rescued and going home [was]
futile,” the “fear was debilitating,” she knew John was still there,
and she started hyperventilating. She “started making noises
again . . . but did not yell,” and John stopped.
Eyewitness one came back and Jane told her, “[W]hoever’s
behind me is hurting me badly,” this time in English. Jane said
her “butt and nipples hurt.” Jane testified eyewitness one tried
to reassure her, telling her she “must be having a bad dream” and
that her pants were still on. Jane claimed that eyewitness one
pulled back the blanket, and when she saw that Jane’s bottom
half was bare (pajamas and underwear completely off), she
screamed for everyone to get out of the apartment and started to
cry. The eyewitnesses then walked Jane home, and Jane told
them what happened.
John testified and denied all of Jane’s accusations. He said
he returned to the apartment around midnight to 12:30 a.m.,
after playing beer pong at another location. He was very
intoxicated and was nodding off while sitting on the floor next to
the eyewitnesses. Eyewitness one told him to lie down for a nap
on the bottom bunk with Jane, since the top bunk was covered
with luggage and other items. John lay down fully clothed on top
of the covers facing the wall, with his back to Jane. John testified
that “[t]he first [he] heard of [Jane’s] allegations was when she
woke [him] up by basically yelling about someone hurting her.”
He was awakened from a deep sleep, thought she was having a
nightmare, got up, and left eyewitness one “to figure out what
was wrong.”
John testified he has a genetic neurological disorder, a
“form of palsy,” which affects his motor skills, especially when
tired or drunk. John’s mother testified about his nervous system
disorder, describing it as a movement disorder with tremors.
They claimed his condition would render it difficult for him to
unzip his pants while intoxicated, much less perform the acts
alleged by Jane. John stated he could not take off a bra “quickly,
smoothly, or quietly.”
Eyewitness one testified by Skype and provided a
declaration. She started dating John their freshman year in
2011. She was sitting on the couch, with her arm along the back
of it, and the bed was often in her peripheral vision. Jane was
under the covers, John was on top of the covers, and the two were
lying back to back. She saw Jane wake up in the bed confused,
disoriented, and mumbling in foreign languages that eyewitness
one did not speak. She thought Jane was having a bad dream,
and John was still asleep facing the wall. She said he usually
“sleeps like a rock.” She denied screaming or crying out when
Jane woke up. She said she did not see or hear any sexual
assault and maintained it was physically impossible for any of
Jane’s allegations to be true.
Eyewitness one stated that due to John’s condition, his
movements are not smooth or fluid. “[I]t would have been
impossible for him to make any kind of movements toward
[Jane], who was under [the] covers, without being noticed by me
and my other roommate, and [he] certainly could not unhook a
bra . . . .” When she and eyewitness two returned to the
apartment after walking Jane home, they examined the mattress,
sheets, and cover “for any visible signs or smells of bodily fluids”
consistent with anal or vaginal penetration, but found none.
Eyewitness one said Jane was her best friend at the time. She
reiterated that if John had done anything, “I would have been on
[Jane’s] side.”
In response to questions from the Committee, eyewitness
one stated that when Jane got up from the bed, she was wearing
a short sleeve shirt and underwear, but not the pajama bottoms.
Eyewitness one said that frequently when Jane slept over, she
would remove her pajama bottoms if she was hot.
Eyewitness two provided a declaration in which he
corroborated eyewitness one’s testimony and maintained that
what Jane described was “not physically possible.” John
produced the sofa and mattress at the hearing to demonstrate the
proximity of the eyewitnesses.
Dr. Louis Rovner, a polygraph examiner, testified by
telephone. John’s counsel retained him to administer a
polygraph examination of John. Rovner holds a B.A., M.A., and a
Ph.D. in Biopsychology. He is a member of the Panel of Experts
of the Los Angeles County Superior Court, Criminal Division. He
has published numerous articles about polygraph-related issues
for scientific and professional journals.
Rovner opined that John’s complete denial of the
allegations against him was truthful. Rovner testified that given
John’s score on the exam, he was “absolutely certain” John was
telling the truth when John responded to his questions about the
night in question. The Committee asked if it would affect the test
result if the person was intoxicated during the events he or she
was questioned about. Rovner responded that any opinion from
him on that question “would be pointless speculation.”
The SART Report Evidence
Prior to the August 16th hearing, Jane submitted to the
Committee two pages from the SART report. The first page is the
cover page, containing only Jane’s name. The second page
identifies the name of the medical professional who performed
the SART exam (Cynthia Hecox), and notes that Jane was taking
Viibryd, a prescription antidepressant.2
In the recommendation
section on the second page, it states that Jane “was advised to
take [a] warm bath in Epsom salt and relax anal muscles to help
sooth discomfort.” These two pages were included in the hearing
packet. The record does not include details regarding how or
when the hearing packet for the August 16th hearing was given
to John. John states he received it the night before the hearing.
At the hearing, the Committee questioned Detective Arviso
about the e-mail she sent to Assistant Dean Perkin on October 1,
2015. The e-mail reads: “[T]he SART report states ‘there was
bruising/laceration noted in the anal area.’” But the two pages of

2 The second page of the SART report and minutes of the
committee hearing refer to “Vybryyd.” The superior court
confirmed that the correct spelling for the medication is
“Viibryd,” and refers to it as such. For clarity, we use the spelling
used in the superior court.
the SART report submitted by Jane do not contain this
information. The Committee relied on the detective’s recollection
that this statement was in fact in the SART report. The
Committee asked the detective if there were any other details
from the report that could be shared. The detective testified, “I’m
not able to disclose anything in great detail . . . case is open
criminally; limits what I am able to share.” The Committee then
asked the detective whether this reference to
“bruising/laceration” was unusual in a SART report. She
testified that “it is not uncommon when there is an assault that
this verbiage would be seen in a SART report,” and stated the
findings of the SART exam were consistent with the allegations
in this case.
When questioned by John about how the “anal area” was
defined in the SART report (i.e., was the bruising and laceration
inside or outside), the detective stated: “That’s exactly how it
was written; my understanding looking at this particular
sentence in exam . . . within the butt cheeks; I don’t know what
damage was done internally.” The Committee then inquired:
“Why was the sentence that you sent to Ms. Perkin from the
[SART] exam the only portion that was shared or could be
shared?” The detective responded that the information in the
SART report was confidential because it was an ongoing
The detective testified that other than this “small snippet”
that she selected from the report, it would not be “appropriate to
disclose what additional findings came through [the] SART
exam.” When John asked if the findings in the SART report
could have been caused by anything other than what Jane
alleged, the detective said: “Well that’s a rough question for me to
answer; I would say the findings in [the SART report] certainly
could have occurred based on [the] allegations in [the] criminal
case; I don’t know what else could have caused it. . . . It’s out of
my realm, my scope to answer the questions.” The complete
SART report was not produced at the hearing or disclosed to John
or his counsel.
The Viibryd Evidence
John was aware that Jane was taking an antidepressant
prior to the hearing, but states he did not learn the name of the
medication until the night before the August 16th hearing, when
he received the hearing packet.
At the hearing, John asked Jane about the possible side
effects of Viibryd, and its side effects when combined with
alcohol. Jane refused to answer the question, stating, “It’s my
private medical information.” John, attempting to explain his
line of questioning, stated that Viibryd “has many side-effects”
that “become severe when alcohol is consumed . . . such as
hallucinations and sleep paralysis and night terrors.”
John’s mother attempted to testify about the side effects of
Viibryd. She called the manufacturer of Viibryd that morning
and wanted to testify about what she had learned from the
manufacturer. The Committee Chair stated he could not accept
this information in this format. When John persisted in asking
his mother about Viibryd and the effects of sleep paralysis, the
chair stated UCSB’s general counsel advised him not to accept
the testimony. John again asked his mother about the side
effects of Viibryd, and general counsel interjected, stating:
“You’re trying to circumnavigate the procedures here. You do not
have the expertise to lay the foundation for this type of evidence.
We appreciate you feel you wish you had more time on the SART
exam but you [had] the opportunity to look at it prior to the
hearing, but you can’t backdoor this. If you have other relevant
questions as to your mother having experience with your [central
nervous system] diagnosis, that would be appropriate.” John was
not allowed to introduce any evidence about Viibryd.
The Committee’s Findings
The Committee found by a preponderance of the evidence
that John violated the Student Conduct Code. The Committee
noted that both John and Jane “agreed that the room was well lit
during the incident, and there was little ambient noise in the
apartment . . . .” The Committee found that “it would have been
possible for an assault as described to occur without the attention
of witnesses who were facing each other and conversing.” The
Committee concluded that “[t]he results of the physical SART
exam corroborate the report of vaginal and/or anal penetration
with fingers and/or a penis.” Relying in part on the SART report,
the Committee rejected John’s theory that Jane’s use of alcohol
while taking Viibryd caused Jane to hallucinate the incident.
The Committee found the SART report supported the claim that
a physical assault was committed, and, therefore, the use of
Viibryd was unlikely to have caused Jane to fabricate the report.
The Committee found Jane’s “testimony and evidence provided
throughout the investigation and hearing” more consistent than
The Committee believed John suffered from a hereditary
neurological disorder that causes tremors, but it concluded that
“the condition would not necessarily make the assault as
described impossible, and it may have even exacerbated the
physical sensations [Jane] described and physical evidence
described in relation to the incident.” The Committee rejected
the polygraph evidence because John was drunk at the time of
the incident and “there is no scientific evidence regarding the
validity of polygraph examinations in this scenario.”
The Committee recommended John be suspended for two
years (eight quarters), starting Fall 2016. On September 2, 2016,
the vice chancellor of student affairs notified John that she
agreed with the Committee’s recommended sanction. John
sought review of the vice chancellor’s decision. The chancellor
affirmed the sanction, but adjusted the suspension to include the
time John had already served on interim suspension. Therefore,
his eight-quarter suspension was effective Fall 2015 through
Summer 2017.
The Superior Court Proceedings
John filed a petition for a writ of administrative mandate in
the superior court to challenge UCSB’s decision. (Code Civ. Proc.,
§ 1094.5.) John contended he was deprived of due process during
the administrative hearing because, among other reasons, the
Committee chose to apply the rules of evidence on an ad hoc basis
and to withhold critical and exculpatory evidence. He argued he
had not been able to see the SART report, about which the
detective testified, and was not allowed to present evidence about
the side effects of Viibryd.
At the hearing in the superior court on April 13, 2017,
John’s counsel informed the court that the Santa Barbara County
District Attorney’s Office had decided not to pursue any charges
against John. John’s counsel argued that a short continuance
would allow John to get a copy of the SART report for the court’s
consideration. The superior court declined to continue the
hearing or take further evidence outside the administrative
record. A complete copy of the SART report is not included in the
record on appeal.
The superior court denied the petition for a writ of
mandate, noting that “[t]he better practice may have been to find
a way to let [John] see the SART report or exclude any reference
to a small portion of the findings in the report given out of
context.” Nevertheless, the court concluded the admission of a
small portion of the SART report and the detective’s testimony
were not prejudicial because the SART exam was not the sole
supporting evidence for the Committee’s conclusions. The court
also concluded John had not demonstrated he was prejudiced by
the timing of the Committee’s disclosure, the day before the
hearing, of Jane’s use of Viibryd or its exclusion of his mother’s
John argues UCSB deprived him of his due process right to
a fair hearing because it withheld critical evidence, improperly
excluded relevant evidence, and selectively applied the formal
rules of evidence. He also argues UCSB abused its discretion by
reaching findings that were not supported by substantial
evidence in light of the whole record.
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.) Our review appears to be
an amalgamation of the three standards of review that govern
appellate practice. 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 UCSB’s findings for
“substantial evidence in the light of the whole record.” (Id., subd.
We review the fairness of the administrative proceeding de
novo. (Doe v. Regents of University of California (2016) 5
Cal.App.5th 1055, 1073.) “‘The statute’s requirement of a “‘fair
trial’” means that there must have been “a fair administrative
hearing.”’” (Doe v. University of Southern California (2016) 246
Cal.App.4th 221, 239, quoting Gonzalez v. Santa Clara County
Dept. of Social Services (2014) 223 Cal.App.4th 72, 96.) “[T]he
University’s rule-making powers and its relationship with its
students are subject to federal constitutional guarantees.”
(Goldberg v. Regents of University of California (1967) 248
Cal.App.2d 867, 875.) In disciplining college students, the
fundamental principles of fairness require, at a minimum, “giving
the accused students notice of the charges and an opportunity to
be heard in their own defense.” (Id. at p. 881; Goss v. Lopez
(1975) 419 U.S. 565, 581 [42 L.Ed.2d 725, 738].) “Where student
discipline is at issue, the university must comply with its own
policies and procedures.” (Doe, at p. 1073.) “[T]he formal rules of
evidence do not apply . . . .” (Id. at p. 1095.)
UCSB Rules
UCSB’s Student Conduct Code provides: “Students who
are subject to University discipline shall be afforded procedural
due process, which is a basic principle underpinning the proper
enforcement of University policies and campus regulations. The
primary purpose of any University disciplinary proceeding is to
determine the guilt or innocence of the accused student.
Deviations from established procedures shall not invalidate a
finding of a hearing body unless the deviation significantly
affected the result. It is recognized that University faculty, staff,
and students are principally engaged in the business and the
pursuit of education, and are not legally trained personnel. As
such they should be guided more by principles of fairness and
common sense than by formal rules of evidence or procedure.”
(Id., § B.)
The Student Conduct Code requires UCSB and its
designated officials to “[m]onitor the process to ensure the
maintenance of procedural due process.” (UCSB Student
Conduct Code, § D, subd. 1.(d)(2)(c)(iii).) “Proceedings will
provide a prompt, fair, and impartial investigation and
resolution.” (OJA Sexual/Interpersonal Violence Response
Procedures for Sexual Assault (rev. Feb. 25, 2014) Proc. &
Process When Reporting to Univ.)
In disciplinary hearings, the Committee “[s]hall receive
verbal and documentary evidence of the kind on which
reasonable persons are accustomed to rely in serious matters and
may exclude irrelevant or unduly repetitious evidence.” (UCSB
Student Conduct Code, § D, subd. 1.(d)(2)(d)(iv).) An accused
student “[s]hall have the right to confront and question all
witnesses.” (Id., subd. 1.(d)(2)(a)(v).)
“The accused has the right to due process as outlined in
the Campus Regulations. Among these rights are: [¶] (i) The
right to written notice of the charges, [¶] (ii) To be accompanied
at the hearing by an advisor of his/her choice, [¶] (iii) To be
present for the duration of the hearing, [¶] (iv) To produce
witnesses and evidence pertaining to the case, [¶] (v) To question
all witnesses, [¶] [and] (vi) To simultaneously with the accuser,
be informed in writing of the outcome of any institutional
disciplinary proceeding, the institution’s procedures for appealing
the results of the proceeding, any change to the results that occur
prior to the time that such results become final, and when such
results become final.” (OJA Sexual/Interpersonal Violence
Response Procedures for Sexual Assault, supra, Proc. & Process
When Reporting to Univ., Rights of the Complainant.)
Lack of a Fair Hearing
Limited access to the SART report
John contends he was deprived of a fair hearing when the
Committee allowed the detective to testify about a single phrase
from the SART report without requiring production of the entire
report to the Committee and to him. Without access to the
complete SART report, John did not have a fair opportunity to
cross-examine the detective and challenge the medical finding in
the report. The accused must be permitted to see the evidence
against him. Need we say more?
The Committee need not strictly adhere to the “formal rules
of evidence or procedure,” but these rules serve as a guide for the
Committee to arrive at a decision based on “principles of fairness
and common sense.” (UCSB Student Conduct Code, § B.) We
refer to these rules to illustrate where fairness is lacking.
For example, the best evidence rule (now the secondary
evidence rule in California) precludes oral testimony to prove the
content of a writing. (Evid. Code, § 1523.) “The principal
rationale advanced for the best evidence rule is to insure that the
trier of fact is presented with the exact words of a writing.”
(Grad & Prairie, The Best Evidence Rule: A Critical Appraisal of
the Law in California (1976) 9 U.C. Davis L.Rev. 257, 258.)
“[T]he chance of error is substantial when a witness purports to
recall from memory the terms of a writing. [¶] The rule is also
thought to help prevent fraud.” (Id. at p. 259.) “The final
rationale offered for the rule is that inspection of an original
document could reveal valuable information not disclosed . . . .”
(Ibid.) This is because it is unfair to have a witness testify about
the contents of a writing without producing the actual writing for
Here, the only substantive portion of the SART report
considered by the Committee, and provided to John prior to the
hearing, was the phrase quoted in the detective’s e-mail of
October 1, 2015. Without the complete SART report, the trier of
fact was left to rely on the detective’s recollection and veracity.
To argue that it is fair to allow the detective to testify about the
contents of the SART report, but preclude the accused and the
trier of fact from seeing the report, strains credulity. (See Goss v.
Lopez, supra, 419 U.S. at p. 582 [42 L.Ed.2d at p. 739] [student
must be told “the basis of the accusation”].)
In addition, the rule of completeness, Evidence Code
section 356, would have allowed John to inquire into the whole of
the SART report, once a portion of the report was quoted during
the detective’s testimony. “The purpose of Evidence Code section
356 is ‘to prevent the use of selected aspects of a conversation,
act, declaration, or writing, so as to create a misleading
impression on the subjects addressed.’” (People v. Clark (2016) 63
Cal.4th 522, 600.) It was unfair to allow the detective to select
and describe only a portion of the SART report, without
producing the complete report. John’s lack of access to the entire
report prevented effective cross-examination and hampered his
ability to present a defense.
Here, the detective testified that the single phrase in the
SART report was consistent with Jane’s allegations. But when
questioned by John about other potential causes of the SART
finding, the detective said it was outside the scope of her
expertise. The detective’s inability to answer whether the finding
in the SART report could be caused by anything other than
Jane’s allegations underscores the unfairness of allowing the
detective to testify about the report when she had not authored
the report or conducted the medical examination, and was
unqualified to give an expert opinion on causation. Allowing the
detective to select and describe a portion of the report denied
John the opportunity to effectively challenge the evidence used to
determine his guilt. (Cf. Doe v. Regents of University of
California, supra, 5 Cal.App.5th at p. 1098 [unlike this case,
failure to disclose interview notes not before the hearing panel
did not prevent the student “from having a meaningful
opportunity to present his defense”].)
The Committee relied on the SART evidence to find that
John sexually assaulted Jane and violated the Student Conduct
Code. It concluded that this evidence corroborated Jane’s “report
of vaginal and/or anal penetration with fingers and/or a penis.”
The Committee also found that John’s “theory that [Jane’s]
antidepressant combined with alcohol precipitated the incident is
unlikely, especially when combined with the findings of the
physical SART exam . . . .” The SART report was critical
evidence, but the Committee did not have the report. At a
minimum, UCSB should have required the detective to provide a
complete copy of the SART report.
The Committee should not have considered the SART
evidence without giving John timely and complete access to the
report. (See Doe v. University of Southern California, supra, 246
Cal.App.4th at p. 247 [“common law requirements for a fair
hearing under Code of Civil Procedure section 1094.5 do not allow
an administrative board to rely on evidence that has never been
revealed to the accused”].) Without this evidence, the Committee
could have concluded there was not a preponderance of evidence
that John violated the Student Conduct Code. The error was
prejudicial and requires reversal.
Other Cumulative Errors
In the event of a future administrative hearing in this case,
we discuss additional cumulative errors that occurred at the
John contends that UCSB’s untimely disclosure of the
Viibryd evidence deprived him of the opportunity to obtain an
expert to testify about the side effects of Viibryd, and the
opportunity to effectively cross-examine Jane. He also argues
UCSB inconsistently applied its policies and procedures and
selectively applied formal evidentiary rules, to his detriment. We
agree. While UCSB’s rules provide “no formal right to discovery,”
the Committee’s rulings during the hearing placed John in a
catch-22; he learned the name of the medication Jane was taking
too late to allow him to obtain an expert opinion, but the
Committee precluded John from offering evidence of the side
effects of Viibryd without an expert. (Doe v. Regents of University
of California, supra, 5 Cal.App.5th at p. 1095.)
The Committee recognized the relevance of the Viibryd
issue, but it rejected John’s claim about insufficient notice by
stating John “already had knowledge” about Jane’s use of
antidepressant medications; he just did not know what exact
medication she was taking until the night before the hearing. No
reputable expert could have offered an opinion without knowing
the exact medication Jane was taking. Because no formal right
to discovery exists in UCSB’s student conduct hearings, and the
formal rules of evidence do not apply, John should have been
allowed to introduce evidence of the side effects of Viibryd
through his mother’s testimony or some other informal method.
Moreover, John’s counsel was not allowed to actively
participate in the hearing. “Students are to represent
themselves. The role of the attorney or advisor is therefore
limited to assistance and support of the student in making
his/her own case.” (UCSB Student Conduct Code, § D, subd.
1.(d)(2)(a)(ii); Doe v. Regents of University of California, supra, 5
Cal.App.5th at pp. 1082-1084 [student not deprived of fair
hearing where counsel not allowed to actively participate].) The
Committee, however, permitted UCSB’s general counsel to
actively participate and to make formal evidentiary objections.
This unfairness is magnified when UCSB’s general counsel is
allowed to make formal evidentiary objections, which UCSB’s
policies and procedures do not permit. A student, whose counsel
cannot actively participate, is set up for failure because he or she
lacks the legal training and experience to respond effectively to
formal evidentiary objections.
The Committee also selectively applied the formal rules of
evidence to John’s detriment. The Committee precluded John’s
mother from offering testimony about the side effects of Viibryd
based on a lack of foundation. But it allowed the detective to
offer an expert medical opinion on causation, even though she
was not a medical expert and had not authored the SART report.
Finally, the Committee inexplicably allowed Jane to decline
to respond to John’s questions about the side effects of Viibryd on
the ground that it was her “private medical information.” This
deprived John of his right to cross-examine Jane and impeded his
ability to present relevant evidence in support of his defense.
(See, e.g., Doe v. Claremont McKenna College (2018) 25
Cal.App.5th 1055, 1070 [when a disciplinary determination turns
on the complaining witness’s credibility, the accused student is
entitled to a process by which the complainant answers his
questions]; Doe v. Regents of University of California, supra, 5
Cal.App.5th at p. 1084.) Here, John could not present evidence of
the side effects of Viibryd through his mother’s testimony and
Jane was not required to answer his questions.
The Committee’s refusal to hear John’s evidence of the side
effects of Viibryd was prejudicial. Jane’s behavior, as described
by eyewitness one, was consistent with John’s theory that Jane
was experiencing the side effects of consuming alcohol while
taking Viibryd.
Without hearing all of John’s evidence, the Committee
rejected John’s defense, concluding that Jane’s allegations were
corroborated by the physical finding in the SART report. Thus,
the error in excluding John’s evidence of the side effects of
Viibryd was compounded by admitting only a portion of the SART
The Committee reached a significant finding based on
nothing more than speculation. While it believed John suffered
from a hereditary neurological disorder that causes tremors, it
concluded “the condition would not necessarily make the assault
as described impossible, and it may have even exacerbated the
physical sensations [Jane] described and physical evidence
described in relation to the incident.” We question the
committee's expertise to arrive at this startling conclusion.
It is ironic that an institution of higher learning, where
American history and government are taught, should stray so far
from the principles that underlie our democracy. This case
turned on the Committee’s determination of the credibility of the
witnesses. Credibility cannot be properly decided until the
accused is given the opportunity to adequately respond to the
accusation. The lack of due process in the hearing here precluded
a fair evaluation of the witnesses’ credibility. In this respect,
neither Jane nor John received a fair hearing.
In light of our conclusion, it is unnecessary to discuss
John’s remaining contention concerning sufficiency of the

Outcome: The judgment is reversed and the matter is remanded to the superior court with directions to grant John’s petition for a writ of administrative mandate. John is awarded costs on appeal.

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