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SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

APPEARANCES:
For Petitioner(s): Alec Scott Rose (x)
For Respondent(s): Hailyn Jennifer Chen (x)

NATURE OF PROCEEDINGS: HEARING ON PETITION FOR WRIT OF MANDATE

Matter comes on for hearing and is argued.


.
Petitioner's exhibit 1 (administrative record) is admitted into evidence.

The court adopts its tentative ruling as the order of the court and is set forth in this minute order.

Petitioner John Doe (“Petitioner”), a graduate student of California Institute of Technology


(“Respondent” or “Caltech”), seeks an administrative writ of mandate directing Respondent to
set aside an administrative decision that placed Petitioner on indefinite involuntary leave.

Factual Background

Caltech’s Sexual Violence Policy

Caltech has a written policy and set of procedures for resolving complaints of sexual violence
(“Policy” or “Sexual Violence Policy”). (AR 3-22.) This policy applied to the complaints of
sexual violence made against Petitioner in this case. (See Oppo. 7.)

Under the Policy, reports of sexual violence are forwarded to Caltech’s Title IX Coordinator,
who conducts an “initial assessment” of the complaint. (AR 17.) After the initial assessment, the
Title IX Coordinator may refer the complaint for administrative resolution, formal investigation,
or other appropriate disposition. (Ibid.)

In this case, the reports of sexual violence against Petitioner were referred for a formal
investigation. (AR 25.) The Policy provides a detailed list of procedures for a formal
investigation. (AR 18-20.) As relevant to this writ petition, the procedures include the following:
Minute Order Page 1 of 11
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

• “The purpose of the investigation is to determine the facts relating to the complaint.
• All participants involved in the investigation will receive a fair process and be treated with
dignity, care, and respect….[¶¶]
• ….Caltech will typically use a team of one or two investigators, though an individual, a
committee or an outside consultant may conduct the investigation….
• The complainant and respondent will be informed of the relevant procedures ….[¶]
• Within a reasonable length of time after the complaint has been filed, the respondent will be
notified in writing of the nature and alleged factual bases underlying the complaint and an
investigation will begin. If interim measures are needed to protect the rights of the complainant
and/or respondent during the investigation, the appropriate administrators shall see that they are
made…. [¶¶]
• The investigator(s) will summarize for the respondent the evidence in support of the complaint
to allow the respondent the opportunity to reply.
• The investigation will be treated as private to the extent possible….[¶]
• The complainant and respondent will be given equal opportunity to present their cases
separately to the investigator(s), to suggest others who might be interviewed, and to present other
evidence. The investigator(s) can, if appropriate, interview other parties to reach findings and
conclusions….[¶¶]
• All parties who participate in investigative interviews may submit written statements.
Investigatory meetings will not be recorded.
• Both parties will be kept informed of the status of the investigation….[¶]
• Extensions of time, and other exceptions to or modifications of these procedures can be made
by the Title IX Coordinator or designee, Provost, Dean or Associate Deans, Associate Vice
President for Human Resources, or Director for Human Resources at JPL, if required for fairness
or practical necessity. Exceptions must be made in writing and notice provided to both the
complainant and respondent, which notice will include the reason for the extension, exception or
modification.” (AR 18-20.)

The Policy states that “the investigator(s) will use the preponderance of evidence standard in
determining whether sexual violence occurred.” (AR 20.) Significantly for this writ petition, the
Policy acknowledges that credibility of witnesses may be important: “When the investigator(s) is
presented with two different but plausible versions of the incident, credibility determinations
may affect the outcome.” (AR 20.)

In a section titled “Findings and Conclusions,” the Policy states that the “investigator(s) will
report their findings and conclusions regarding the charges to the Provost, relevant Dean… as
Minute Order Page 2 of 11
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

appropriate, for decision.” (AR 20.) In a section titled “Resolution,” the Policy states: “As soon
as practicable after receiving the findings and conclusions of the investigator(s), the appropriate
Caltech official … will make a decision concerning resolution of the complaint, including
imposing sanctions against the respondent if appropriate.” (Ibid.) The complainant and
respondent will be notified in writing of the decision and their rights to appeal. (Ibid.)

The Policy includes an appeal procedure, which states in part: “Appeals of decisions resulting
from the Formal Investigation process must be on the grounds that a procedural error occurred
that significantly affected the outcome of the investigation, there is a new and relevant evidence
that was unavailable at the time of the investigation that could substantially impact the original
findings, or the sanction is substantially disproportionate to the findings.” (AR 21.) Appeal
decisions are final. (Ibid.)

Caltech’s Formal Investigation of Petitioner

In 2016, five separate complainants reported to Caltech that Petitioner, a graduate student, either
engaged in nonconsensual sexual intercourse with the complainant—in some instances while the
complainant was incapacitated and could not consent—or pressured the complainant to engage in
sexual activity while the complainant was intoxicated. (AR 63.) Some of the complainants
reported that
Petitioner physically restrained them or placed them in fear of their physical safety. (AR 47, 52,
74.) Caltech also received reports that Petitioner provided underage students with alcohol. (AR
63.)

Caltech notified Petitioner of “concerning reports” about him “implicat[ing] Title IX,” and of the
opening of a formal investigation, in a September 18, 2016 letter. (AR 25-26.) Caltech provided
further notice to Petitioner, on October 25, 2016 and December 6, 2016, of allegations of sexual
violence against him. (AR 27-28, 38-39.) The September 18, 2016 letter also notified Petitioner
that he “provided alcohol to underage students in their undergraduate residences during the
2015-216 academic year.” (AR 27.)

Caltech’s Title IX investigators conducted an investigation, which included


interviews of Petitioner, complainants, and numerous witnesses. (AR 63–65.) In all,
the investigators interviewed two dozen witnesses and also reviewed documentary evidence. (AR
64–65.) The investigators explained to Petitioner the allegations
against him; the investigators also summarized the witness statements and other evidence
supporting those allegations and provided Petitioner with an opportunity to respond to the
Minute Order Page 3 of 11
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

summary. (AR 63–64.) Petitioner was not provided an opportunity to question the accusers or
adverse witnesses at a live hearing before a neutral factfinder to test their credibility. Petitioner
was also not permitted to submit written questions to the investigators to pose to the accusers or
witnesses. (See AR 63-82.)

After the investigation, the investigators concluded that Petitioner more likely than not violated
Caltech’s Sexual Violence Policy or Caltech’s policy prohibiting sexual harassment with respect
to all five complainants. (AR 69, 72, 74, 77, 80.) The investigators made several credibility
determinations against Petitioner. (See AR 68-69 [“We did not find [Petitioner’s] response to
HG’s allegations credible”]; 69-71 [although complainant “SURF” did not participate in
investigation, “[Petitioner’s] denial of these allegations is not credible”]; 74; 77; 79.)

The investigators also found it more likely than not that Petitioner violated Caltech’s Alcohol
and other Drugs policy. The investigative report states that Petitioner “acknowledged providing
alcohol to underage students, and we also heard that he did so from AH, JM, JT, MC, AB, and
JL.” (AR 72; see also AR 44, 69-72.)

Administrative Decision

Based on the investigative findings, Dean of Graduate Studies Douglas Rees concluded, in a
letter dated December 29, 2016, that the allegations against Petitioner had been substantiated.
(AR 81.) Rees placed Petitioner on indefinite involuntary leave, and notified him of his right to
appeal on the three grounds stated in the Policy. (AR 82.) Petitioner did not file an administrative
appeal. (Opening Brief (OB) 20-27.)

Procedural History

On November 13, 2017, Petitioner filed his petition for writ of administrative mandate. On
January 26, 2018, Respondent filed an answer. On March 5, 2019, Petitioner filed his first
amended petition (“FAP”) for writ of administrative mandate. On April 5, 2019, Respondent
filed its answer to the FAP.

On April 19, 2019, Petitioner filed his opening brief in support of the petition. The court has
received Respondent’s opposition, Petitioner’s reply, and the administrative record. 1

California Rules of Court, Rule 3.1113

Minute Order Page 4 of 11


SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

Petitioner’s 38-page opening brief greatly exceeds the page limit of 15 pages. Petitioner did not
obtain leave to file an oversized brief as required by CRC Rule 3.1113(d) and (e). Petitioner’s
counsel is admonished to comply with Rule 3.1113 in future briefs. Respondent has not objected
to the oversized brief. A substantial part of Petitioner’s opening brief relates to an issue –
whether the evidence supports the findings – that, as discussed below, the court need not decide.
Thus, while inappropriate, the oversized brief was not particularly prejudicial to the court or
Respondent in this case. The court exercises its discretion to consider Petitioner’s entire brief.

Standard of Review

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded
without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of
discretion. An abuse of discretion is established if the agency has not proceeded in the manner
required by law, the decision is not supported by the findings, or the findings are not supported
by the evidence. (CCP § 1094.5(b); see Topanga Assn. for a Scenic Community v. County of
Los Angeles, (1974) 11 Cal. 3d 506, 515.)

“A challenge to the procedural fairness of the administrative hearing is reviewed de novo on


appeal because the ultimate determination of procedural fairness amounts to a question of law.”
(Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Analysis

Petitioner contends that, for various reasons, the administrative procedure was unfair. (OB 19-
27.) Petitioner further contends that the evidence does not support the findings. (OB 31-38.) In
opposition, Respondent contends that Petitioner failed to exhaust his administrative remedies and
is not excused from doing so. (Oppo. 12-16.) Respondent does not oppose Petitioner’s fair
procedure arguments on the merits, but does contend that substantial evidence supports the
administrative decision. (Oppo. 16-18.)

Exhaustion of Administrative Remedies

Summary of Applicable Law

Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (Cal.


Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.)
Minute Order Page 5 of 11
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

“Under the doctrine of exhaustion of administrative remedies, ‘where an administrative remedy


is provided by statute, relief must be sought from the administrative body and this remedy
exhausted before the courts will act.’ This rule ‘is not a matter of judicial discretion, but is a
fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of
stare decisis and binding upon all courts’.’” (Park Area Neighbors v. Town of Fairfax (1994) 29
Cal.App.4th 1442, 1447.)

There are exceptions to the exhaustion requirement, including “when pursuit of an administrative
remedy would result in irreparable harm, when the administrative agency cannot grant an
adequate remedy, and when the aggrieved party can positively state what the administrative
agency's decision in his particular case would be.” (Edgren v. Regents of University of
California (1984) 158 Cal.App.3d 515, 520.)

“Because this exhaustion requirement depends on the availability of a remedy within the
administrative proceeding, we must examine the procedures applicable to the proceeding.” (Clew
Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 185.) Interpretation of
the administrative procedures presents a legal question. (Ibid.)

“If an administrative remedy fails to satisfy the standards of due process, the exhaustion
requirement is excused.” (Imagistics Intern., Inc. v. Department of General Services (2007) 150
Cal.App.4th 581, 591; see also Bockover v. Perko (1994) 28 Cal.App.4th 479, 486.) “A party is
not required to exhaust the available administrative remedies when those administrative
procedures are the very source of the asserted injury…. Under this exception, a party is excused
from exhausting the administrative remedies where the challenge is to the constitutionality of the
administrative agency itself or the agency's procedure.” (Unnamed Physician v. Board of
Trustees (2001) 93 Cal.App.4th 607, 621.)

“‘It is settled that the rule requiring exhaustion of administrative remedies does not apply where
an administrative remedy is unavailable [citation] or inadequate.’ (Tiernan v. Trustees of Cal.
State University & Colleges (1982) 33 Cal.3d 211, 217 [188 Cal.Rptr. 115, 655 P.2d 317].)
Further, even where there is an administrative remedy to exhaust, the exhaustion requirement is
excused where its pursuit would be futile, idle or useless.’” (Bollengier v. Doctors Medical
Center (1990) 222 Cal.App.3d 1115, 1126.) “The futility exception is very narrow and will not
apply unless the petitioner can positively state that the administrative agency has declared what
its ruling will be in a particular case.” (Ibid.)

In Tiernan, the Court found that some of the plaintiff’s claims were not barred by the exhaustion
Minute Order Page 6 of 11
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

requirement because the grievance process was “ill-suited” to resolve such claims. (Tiernan,
supra, 22 Cal.3d at 217-218.) The court stated: “The rules governing the University's grievance
procedure provided no avenue by which plaintiff could have advanced her claim that the trustees
had a duty to enact regulations governing notice of nonreappointment for temporary employees.”
(Ibid.)

Application to Findings that Petitioner Violated Sexual Violence Policy

Petitioner contends that “the futility exception excuses Petitioner’s failure to exhaust Caltech’s
limited appeal because Caltech’s limited right to appeal [in the Sexual Violence Policy] is
inadequate and would not have changed … Caltech’s determinations.” (OB 28.) Petitioner
contends that exhaustion is excused because the Sexual Violence Policy “does not permit a
student to file an appeal on the grounds that Caltech’s entire policy and procedure for
investigating Title IX complaints deprives the accused of a fair hearing.” (OB 29.)

In relevant part, the Sexual Violence Policy states that “Appeals of decisions resulting from the
Formal Investigation process must be on the grounds that a procedural error occurred that
significantly affected the outcome of the investigation….” (AR 21.) The court reviews this
procedure de novo. (Clew Land & Livestock, LLC, supra, 19 Cal.App.5th at 185.)

Pursuant to the Policy, the formal investigation determines the facts, and results in the findings
and conclusions that are reported to the relevant Caltech official. In context, the relevant basis
for appeal – “a procedural error occurred that significantly affected the outcome of the
investigation” – is reasonably interpreted to refer a procedural error related to the detailed
investigative procedures set forth in the Policy itself. (AR 18-20.)

Petitioner’s broad fair procedure arguments are not based on alleged violations of the Policy, but
challenge the fundamental fairness of the Policy to adjudicate complaints of sexual violence.
Specifically, citing case law, Petitioner contends that the Policy is unfair because: (1) Caltech
does not provide for a live hearing before a neutral factfinder; (2) the accused student has no
opportunity to cross-examine witnesses; and (3) Caltech investigation and factual determinations
deprive the accused student with access to evidence. (OB 29.) The Policy did not allow an appeal
on these grounds. Thus, exhaustion was excused because the administrative remedy was
inadequate. (See Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520;
Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 217; Unnamed
Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 621; Imagistics Intern., Inc. v.
Department of General Services (2007) 150 Cal.App.4th 581, 591.)
Minute Order Page 7 of 11
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

Caltech contends that these exceptions to the exhaustion rule do not apply because “the grounds
on which Petitioner alleges Caltech denied him a fair hearing are explicitly fact-dependent, not
matters of policy.” Caltech contends that Petitioner brings only an “as-applied” challenge to the
Policy, which could have been exhausted. (OB 15-16.) However, the Policy does not allow for
either an as-applied or facial challenge to the fairness of the procedure.

Caltech also contends that the exception for inadequacy of appeal only applies where the “appeal
procedure itself fails to comply with due process.” (Oppo. 16.) The case law does not limit the
exception to procedures that fail to comply with due process; inadequacy of the administrative
appeal can also excuse exhaustion. (See e.g. Tiernan v. Trustees of Cal. State University &
Colleges (1982) 33 Cal.3d 211, 217.)

The court concludes that the appeal procedure was inadequate with respect to Petitioner’s
arguments that the Sexual Violence Policy deprives him, and other similarly situated students
accused of sexual violence, a fair procedure. Thus, exhaustion is excused as to those fair
procedure arguments. 2

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 (2016) 246 Cal.App.4th 221, 240 [hereafter Doe v. USC].) “A university
is bound by its own policies and procedures.” (Doe v. Regents of the University of California
(2016) 5 Cal.App.5th 1055, 1078.)

Opportunity to Question Complainants and Witnesses; Single Investigator Procedure

In Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, the Court of
Appeal stated that “where the Panel's findings are likely to turn on the credibility of the
complainant, and the respondent faces very severe consequences if he is found to have violated
school rules, we determine that a fair procedure requires a process by which the respondent may
question, if even indirectly, the complainant.” (Id. at 1084.) The Court of Appeal provided
additional guidance on this issue in Doe v. Claremont McKenna College (August 8, 2018) 25
Cal.App.5th 1055:

We hold that where, as here, John was facing potentially severe consequences and the
Minute Order Page 8 of 11
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

Committee's decision against him turned on believing Jane, the Committee's procedures should
have included an opportunity for the Committee to assess Jane's credibility by her appearing at
the hearing in person or by videoconference or similar technology, and by the Committee's
asking her appropriate questions proposed by John or the Committee itself. That opportunity did
not exist here. (Id. at 1057-1058.)

(See also Doe v. University of Cincinnati (8th Cir. 2017) 872 F.3d 393, 401-402 [same]; accord
Doe v. Baum (6th Cir. 2018) 903 F.3d 575, 578 [same]; see also Doe v. University of Southern
California (2018) 29 Cal.App.5th 1212; Doe v. Regents of University of California (2018) 28
Cal.App.5th 44, 60.)

The Court of Appeal recently provided further guidance on the procedures required in sexual
misconduct disciplinary proceedings where the determination pivots on witness credibility. (See
Doe v. Allee (2019) 30 Cal.App.5th 1036.) The court set forth the following rule:

[W]e hold that when a student accused of sexual misconduct faces severe disciplinary sanctions,
and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central
to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the
university provide a mechanism by which the accused may cross–examine those witnesses,
directly or indirectly, at a hearing in which the witnesses appear in person or by other means
(e.g., videoconferencing) before a neutral adjudicator with the power independently to find facts
and make credibility assessments. That factfinder cannot be a single individual with the divided
and inconsistent roles occupied by the Title IX investigator in the USC system. (See Allee, supra,
30 Cal.App.5th at 1069 [emphasis added].)

Here, the administrative procedure was unfair under Allee. Petitioner was accused of sexual
misconduct by five different complainants and faced severe disciplinary sanctions. The
credibility of the complainants, multiple adverse witnesses, and Petitioner was at issue. (See AR
40-80.) At least one of the complainants, “SURF,” chose not to participate in the investigation.
(AR 51.) Nonetheless, the investigators credited her complaint over Petitioner’s response based
on interviews with other witnesses. (AR 51-53.) The investigators made several credibility
determinations against Petitioner. (See AR 68-69; 69-71; 74; 77; 79.) Allee instructs that where,
as here, the credibility of witnesses is key, the complainants and adverse witnesses must be
subjected to questioning, including direct or indirect cross-examination, at a hearing before a
neutral adjudicator. Furthermore, under Allee, the investigators could not serve as the neutral
adjudicator.

Minute Order Page 9 of 11


SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

Caltech has not responded to these fair procedure arguments and has therefore conceded the
same. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328,
1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Based on the foregoing, the administrative procedure was unfair and the decision and sanction
must be set aside. 3

Substantial Evidence Review

The court concludes that the substantial evidence test would apply to Caltech’s findings that
Petitioner violated Sexual Violence Policy. (See e.g. Doe v. University of Southern California
(2016) 246 Cal.App.4th 221, 238, 239, 248-249; Doe v. Regents of the University of California
(2016) 5 Cal.App.5th 1055, 1073-1074.) However, because of the lack of fair hearing discussed
above, the court need not determine whether the findings that Petitioner violated the Sexual
Violence Policy are supported by substantial evidence.

Conclusion

The petition is GRANTED. The court will issue a writ directing Caltech to set aside the
administrative decision, to the extent it was based on alleged violations of the Sexual Violence
Policy, and the sanction of indefinite involuntary leave. Should Caltech elect to initiate new
administrative proceedings against Petitioner for alleged violations of the Sexual Violence
Policy, it shall do so in a manner consistent with a fair procedure and the views expressed herein.
4

Petitioner is ordered to prepare a proposed form of judgment and writ, serve opposing counsel
for approval as to form, and lodge with the court within 20 days. Concurrent with that lodging,
Petitioner is to file and serve a declaration stating whether there is agreement between the parties
as to the form of judgment and writ. If there is not agreement, the court will hold the judgment
and writ for ten days during which time opposing party may file written objections.

FOOTNOTES:

1- At a trial setting conference held February 22, 2018, counsel advised the court that the
administrative record would exceed 450 pages. The court ordered the parties to prepare a joint
appendix consistent with the court’s guidelines. The administrative record lodged on or about
July 1, 2019 is 122 pages. The parties have not lodged a joint appendix. Neither party claims that
Minute Order Page 10 of 11
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 82

BS171416 July 9, 2019


JOHN DOE VS CALIFORNIA INSTITUTE OF 9:30 AM
TECHNOLOGY

Judge: Honorable Mary H. Strobel CSR: D Van Dyke/CSR 12654


Judicial Assistant: N DiGiambattista ERM: None
Courtroom Assistant: B Byers Deputy Sheriff: None

the administrative record is incomplete.


2- Alternatively, Petitioner argues that the appeal procedure itself denied him due process
because, inter alia, it did not permit him to challenge Caltech’s entire policy and required him to
show procedural error without access to all relevant evidence. (OB 29-30.) While the court sees
some merit to these contentions, the court need not decide them because the court concludes that
the appeal procedure was inadequate and futile.
3- Since the decision must be set aside on these grounds, the court finds it unnecessary to decide
Petitioner’s additional argument that he was denied fair, reasonable, and timely access to
evidence. (OB 25-27.)
4- Petitioner did not challenge the findings regarding his violation of the Alcohol and Other Drug
Policy, and apparently admitted those allegations. (AR 72, 44, 69-72; see also OB 34:18-19
[Petitioner admitted he provided Student 2 alcohol when she was underage].) That finding need
not be set aside. The sanction must nonetheless be set aside because it was also based on alleged
violations of the Sexual Violence Policy.

Petitioner's exhibit 1 is ordered returned forthwith to the party who lodged it, to be preserved
unaltered until a final judgment is rendered in this case and is to be forwarded to the court of
appeal in the event of an appeal.
.
Counsel for petitioner is to give notice and to prepare, serve and e-file the proposed judgment
and proposed writ, along with a declaration which states whether counsel for respondent has
objections to the form of the judgment. If there are objections, the court will hold the proposed
judgment and proposed writ ten days for objections.

Minute Order Page 11 of 11

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