Opinion
B321766
11-06-2023
JOHN DOE, Plaintiff and Appellant, v. TIMOTHY P. WHITE, as Chancellor of the California State University, etc., et al., Respondents.
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and Appellant. California State University, Office of General Counsel, Susan Westover, William C. Hsu and Brian P. Villarreal for Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCP02973, Mitchell L. Beckloff, Judge.
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and Appellant.
California State University, Office of General Counsel, Susan Westover, William C. Hsu and Brian P. Villarreal for Respondents.
MOOR, J.
Petitioner John Doe appeals from an order denying a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5 in favor of respondents Timothy P. White, in his capacity as Chancellor of the California State University, and the Board of Trustees of the California State University (collectively "the University") in this action concerning student discipline procedures in sexual misconduct matters. On appeal, Doe contends he did not receive a fair administrative hearing because: (1) the University failed to provide adequate notice of the charges against him, (2) the University did not provide him with the evidence relied upon by the finder of fact, and (3) he was denied a live hearing with an opportunity for cross-examination of his accuser and other witnesses. We conclude Doe failed to exhaust his administrative remedies, and therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
California State University's Sexual Misconduct Policies
Executive Order 1097 (EO 1097), effective October 5, 2016, governed sexual misconduct complaints by California State University (CSU) students during the relevant time. EO 1097 stated, "Engaging in any sexual activity without first obtaining Affirmative Consent to the specific activity constitutes Sexual Misconduct and is a violation of this policy, whether or not the conduct violates any civil or criminal law. [¶] . . . [¶] Sexual activity includes but is not limited to kissing, touching intimate body parts, fondling, intercourse, penetration of any body part, and oral sex."
Under EO 1097, after a complaint of sexual misconduct was filed, a Title IX coordinator was to conduct an initial intake interview with the complainant, explain the investigation procedure, inform the complainant of applicable rights, and discuss interim remedies. The coordinator would apprise the complainant of the right to file a criminal complaint and offer to assist with filing a criminal complaint.
Based on the complaint and the intake interview, the coordinator would determine whether the complaint fell within the scope of the policy. If so, the coordinator would investigate the complaint or assign the investigation to another investigator. If assigned to another investigator, the coordinator was required to supervise all delegated tasks, including reviewing draft investigation reports before they were final to ensure the investigation complied with EO 1097.
Prior to or during an initial interview with the accused party, the coordinator was required to: (1) explain the investigation procedure and the accused student's rights; (2) provide a copy of EO 1097 and a description of the complainant's allegations; and (3) give the accused student a full opportunity to respond to the allegations, including scheduling other meetings, accepting documentary evidence, and accepting witness lists. With limited exceptions, information about the complaint could be shared with other campus employees and law enforcement as necessary; confidentiality could not be ensured.
EO 1097 requires the parties have an equal opportunity to present relevant witnesses and evidence in connection with the investigation. In addition, before reaching a final conclusion or issuing a final investigation report, the investigator must have: (1) advised the parties, or offered to advise them, verbally or in writing, of any evidence upon which the findings will be based; and (2) given the parties an opportunity to respond to the evidence, including presenting further relevant evidence, information, or arguments that could affect the outcome.
Although a law enforcement agency might be conducting a criminal investigation into the same allegations, the procedures were separate investigations and the University must complete its investigation as promptly as possible. The investigator was to prepare a report summarizing the allegations, the investigation process, the preponderance of the evidence standard, a detailed description of the evidence considered, and findings of fact. The report must be provided to the coordinator to review to ensure compliance with EO 1097.
The coordinator would inform the complainant and accused party of the outcome of the investigation in writing, including the same information as the investigator's report and a determination as to whether EO 1097 was violated, and if so, any remedies to be imposed.
A dissatisfied party could file an appeal in writing with the chancellor's office on three grounds: (1) the investigation outcome was not supported by the evidence; (2) prejudicial procedural errors had an impact on the outcome to such an extent that the investigation did not comply with EO 1097; or (3) new evidence existed that was not available at the time of the investigation. The chancellor's office would not consider any evidence that was not introduced during the hearing unless it was unavailable at the time of the investigation. The chancellor's office would provide a response summarizing the issues raised on appeal, the evidence, the preponderance standard, and the determination of the issues. If the chancellor's office determined that the investigation should be reopened to cure a defect or consider new evidence, it could remand the investigation to the campus. After the appeal process was exhausted, the findings of the investigation were final and concluded the process under EO 1097.
Student discipline for violation of EO 1097 was governed by Executive Order 1098 (EO 1098). The sanctions that could be imposed for violation of the student conduct code were: restitution; loss of financial aid; educational or remedial sanctions, such as essays or service to the University; denial of access to the campus or specified people for a designated period of time; disciplinary probation; suspension; or expulsion.
Proceeding Against Doe
In Fall 2016, Doe was a senior studying accounting at California State University, Fullerton (CSUF). Doe and fellow student Jane Roe were in a study group for an accounting class. On October 14, 2016, Doe and Roe picked up food at an In-N-Out Burger restaurant to eat in Doe's car. On October 16, 2016, Roe went to the local police station with her boyfriend and two friends to report that she had been sexually assaulted by Doe on October 14 and 15, 2016. On October 18, 2016, she provided a second incident report with additional details.
A police officer provided a summary of Roe's allegations to Title IX Coordinator Mary Becerra and other school officials. Beccera interviewed Roe on October 20, 2016, and offered accommodations.
On November 15, 2016, Becerra sent a letter to Doe stating, "The University has received allegations of sexual misconduct against you ("Respondent") by CSUF student, ROE ("Complainant"). The alleged incident is stated to have occurred at an off-campus location on October 18, 2016." The date listed in the notice was a typographical error. There was no further description of the factual allegations. The letter informed Doe that an investigation would be conducted pursuant to EO 1097. An investigator would contact him to schedule an interview to discuss the allegations and any other pertinent information to clarify the facts. The investigation process would consist of interviewing Roe, Doe, and anyone identified as having pertinent information, as well as reviewing evidence.
Bacerra assigned Andy Terhorst to investigate the allegations. Terhorst scheduled an investigatory interview with Doe on December 1, 2016. In response to questions from Doe prior to his interview, Becerra sent an email stating, in relevant part, "You will be informed of all information and evidence gathered that will be factored into determining an outcome. This will be done through the investigatory interviews; this is your opportunity to respond, as well as provide your own evidence, including names of witnesses and other information you deem critical or relevant that the investigator needs to have."
Interview with Terhorst
On December 1, 2016, without describing Roe's allegations, Terhorst asked about Doe's studies and how he met Roe. Doe confirmed that he had a class with Roe and explained how he met her. Terhorst asked what happened after their first study group session, whether they were still talking and seeing each other in class. Doe answered, "Not really. One time . . . we were gonna hang out and, you know, we went to [In-N-Out], and that's it. You know, [In-N-Out] was full of people, so I decided to come back and hang out by her house and . . ." Terhorst interrupted to confirm the location of the restaurant. He asked whether they studied again at that time, but Doe said no. Terhorst asked whether they talked about life in general. Doe responded, "I don't remember really. I don't think so. I don't believe so." Terhorst asked why they didn't study again. Doe said he had job interviews to prepare for and a really busy month. They discussed his interviews with recruiters and his schedule.
Terhorst said, "Okay. So the - the allegations that that -ROE reported, started with that [In-N-Out] thing, with the [In-N-Out] night -" Doe responded, "Oh. Oh." Terhorst continued, "Okay. So let's - you said you didn't have any - any real contact with her between [In-N-Out] and that last time - that first time -that first and last time you guys studied?" Doe said, "She's -she's saying it's October 18th; right?" Terhorst answered, "It's -it's 14th, I believe." Doe said, "18th? I got the letter here." Terhorst answered, "No. The - the letter - I think the letter has the wrong date."
Doe showed Terhorst the email from Becerra saying that the sexual misconduct occurred on October 18. Terhorst said, "That's the wrong date." Doe said, "That is - that is the date that she sent me though....That can't be the wrong date." Terhorst asked why. Doe responded, "Because that's - that's a legal document."
Terhorst told him, "[Y]ou're gonna have a revised one that comes out." Terhorst attempted to proceed. Doe said, "Andy, let's - let's be - I want to be fair. She can't just change the date like this." Terhorst stated that it was an error on Becerra's part, because the police report said Friday, October 14th. Doe said, "No. On this document, it says October 18th, so I'm gonna go by October 18th through the investigation, because I have all the documents here for October 18th, so . . ."
Terhorst said he was being fair and October 14 was the date in the police report that should have been on the letter. Terhorst asked if Doe met with Roe on Friday, October 14th. Doe said, "I didn't meet with her October 18th, so I don't know what -why she would be accusing me for Friday, October 18th.... Because in [Becerra's] email, she said the investigation is limited to the allegations brough forth . . . on October 18th. So, I didn't get any - any - you know, notice for October 14th. I got it for October 18th [inaudible]." They disagreed about whether or not the date could be changed. Terhorst responded, "Well that's your opinion." Doe said, "No. I'm telling you, this is the investigation, and I'm complying. And now that I have all the evidence, you know . . . here with me . . . it's not fair to me."
Terhorst said Doe did not have a choice about whether to receive a revised notice of investigation. Terhorst asked, "[A]re you going to answer any questions relating to Friday, October 14th?" Doe responded, "I'm gonna answer questions about October 18th. That's what [inaudible] investigation." Terhorst said, "That's not what I asked. I asked if you were gonna answer -" Doe interrupted, "I'm not ready. I have to build up my evidence and everything." Terhorst asked, "Well, let me tell you - do you want me to tell you what the allegation [inaudible]?" Doe answered, "That's not - that's not fair to me. Yes, please." Doe added that he didn't accept allegations about October 14th, but he wanted to know what Roe said about October 18th. Terhorst reiterated that the allegations were about Friday, October 14th.
Doe suspected Roe had written October 18th on the original report filed with the school, and he asked to see the document that Terhorst was looking at. Terhorst refused to show it to him and said, "No. You're not - you're not entitled to see this." Doe asked if Terhorst was not showing him the document because it said October 18. Doe stated, "And I'm trying to be fair and honest with people. And I have all the evidence here for October 18th, and I don't think it's fair that they just changed the date on me. That's not the investigation."
The conversation continued to turn in the same circle. Terhorst said Doe would receive a revised notice and whether he chose to cooperate with it was his choice. "If you don't want to cooperate, then we'll make a finding without your statement." Doe said, "Andy, October 18th was the notice I received originally. She cannot just keep changing dates like this . . . because it never occurred. It never happened, Andy." Terhorst asked, "[W]ell, you're not willing to answer questions [about] what happened on the 14th?" Doe responded that he wanted to adhere to the original allegation," 'Cause I can tell you right here, I have all the evidence for October 18th. I have - I was home at 10:30. I have my class schedule. I had an interview on October 20th, so I didn't even have time to do any of this stuff.... I had emails here that I was sending on October 18th..... My debit card information, if you want it. I have receipts when I went shopping, and I have - I was in Irvine at that time at Shell.' "
Terhorst explained again that the date in the notice was a typographical error. Doe said, "It's not a typographical error. It's the accusation that I received. They had so much time to send that to me....They could have fixed that at any time and they didn't." Doe said that he was going to have an attorney listen to the interview, because he didn't think it was fair. He said Terhorst did not give him enough time to prepare for an allegation about October 14th.
Terhorst said Doe had time and added, "I don't know what - what prep you're looking for, you know -" Doe answered, "Evidence." Terhorst said, "Well, she's made these allegations.... You said you went to [In-N-Out] with her on one time. I asked you - that's when the allegations began at [In-N-Out], and you said you didn't . . . know what I was talking about, because on the 18th you were busy." Doe answered, "No. I'm saying the investigation[']s on the 18th - [In-N-Out] has nothing to do with this." Terhorst asked if Doe wanted to tell him what happened at [In-N-Out]. Doe said he wanted to know what Roe was accusing him of doing on October 18. Terhorst repeated that October 18th was a typographical error, which Doe disputed again, and Terhorst ended the interview. Terhorst did not attempt to provide any description of the allegations of sexual misconduct against Doe without referring to the date of the incident.
Later that day, Becerra sent a notice to Doe stating that there was an error in the incident date on the previous notice. She clarified, "This was an administrative, typographical error and is not reflective of statements made by the Complainant to the Title IX and Gender Equity Office at the time the complaint was filed." The notice further stated, "The alleged incident is stated to have occurred at an off campus location on or around October 14, 2016 and October 15, 2016." There was no further description of the factual allegations.
Doe Hires Attorney and Refuses Further Participation
Doe hired attorney Thomas B. Connor. On December 12, 2016, Connor notified Terhorst that he represented Doe, "who has reportedly been questioned by you for an alleged sexual assault brought to your attention by a Miss ROE." The attorney advised Terhorst not to question Doe without his attorney present. He stated that he told Doe to assert his Fifth Amendment rights if Terhorst attempted to question him without counsel present.
On January 9, 2017, an administrative assistant sent an email to Doe to schedule another interview with Terhorst. The email provided no information about Roe's allegations or the evidence against Doe. On January 10, 2017, Doe's attorney responded to the assistant that replying was time-consuming and annoying to Doe. According to Doe, the time to conduct an investigation had expired. The attorney stated that Doe had no more information to discuss with Terhorst and would not be attending any meeting with him. Doe was asserting his constitutional rights on the advice of his counsel. The attorney mailed a letter to the assistant reiterating that Doe had no intent to converse with Terhorst.
That same day, Becerra sent an email to Doe's attorney. She stated that under CSU's policy, the investigator was required to provide Doe with opportunities to participate in the investigation, to provide a response to Roe's allegations, and to provide any relevant evidence that he wished the investigator to consider. Becerra notified Doe's attorney that the investigation would reach a determination regardless of Doe's participation, but the interview with Terhorst was Doe's opportunity to provide information. If Doe chose not to participate in the investigation, he would not be able to submit evidence available during the time of the investigation in the appeal process.
Becerra also explained that although Doe did not intend to participate in the investigation, CSU's policy required the investigator to provide updates to Doe throughout the process, including the status of the investigation and a final offer for Doe to respond to the information and evidence collected during the investigation. Doe was not required to respond, but CSU was required to send email to Doe to give him ample opportunity and knowledge about the continuing investigation, which would be sent to Doe's attorney as well.
On January 24, 2017, Terhorst sent an email to Doe and his attorney stating that CSUF policies required Terhorst to contact Doe and provide a final opportunity to participate in the complaint process, provide a response to the allegations, and provide any relevant evidence that Doe wished to have considered in the investigation. Terhorst acknowledged that Doe was represented by counsel and wished to assert his Fifth Amendment rights, so Terhorst asked that Doe or his attorney contact Terhorst about Doe's intent to provide a statement. Terhorst did not state anything further about Roe's allegations or about providing evidence against Doe. Doe did not respond.
Investigative Report
On February 21, 2017, Terhorst issued his investigative report. Terhorst interviewed Roe, as well as one of Roe's study partners and her best friend. Terhorst found Roe to be credible.
He spoke with a police detective about the ongoing criminal investigation involving Roe and Doe. The detective shared the statement that Doe made to the police. Doe told the detective that he went to In-N-Out with Roe to get food, but the restaurant was too busy, so they talked in a residential area for a couple hours. Doe could not remember many details about the night, but he denied touching Roe, telling her to take her clothes off or move around in the car in her underwear, giving her drugs even though she "kept asking for drugs," masturbating in front of her, or making her feel uncomfortable. He stated, "Nothing consensually happened sexually." Doe stated that he was not intimate with Roe, did not find her attractive, and did not kiss her. They did not discuss anything related to sex, just talked, and he slept in the car during the six hours that they were together. Then Doe dropped her off at her apartment. He did not know why Roe would make these allegations against him and said she must be crazy.
Terhorst found Doe, in his interview, appeared ready to address the allegations of events that occurred on October 18, 2016, but would not answer questions about October 14 and 15, 2016. Although Doe claimed to Roe that he was a fraternity member, the Director of Student Life and Leadership at CSUF did not find Doe's name associated with a fraternity during the previous four years. Doe also claimed to Roe that he was a member of the United States Air Force, but the Director of the Veteran's Resource Center at CSUF advised that Doe was not registered as a veteran. The report acknowledged that the lack of registration did not prove Doe was not a veteran, only that he may not have registered for veteran education benefits. Based on the limited information that Doe provided and his refusal to answer questions about October 14 and 15, 2016, Terhorst concluded Doe did not want to provide information that would incriminate him. Terhorst found Doe was not credible.
Terhorst concluded Doe engaged in a persistent six-hour effort to engage Roe in sexual activity based on the following findings of fact. On October 14, 2026, Doe picked up Roe at 11 p.m. purportedly to get something to eat at In-and-Out, study accounting, provide her test bank questions, and mentor her. The restaurant was too crowded, so he suggested watching a movie on his phone in the car. Even though she said she had homework and did not want to stay out late, he drove to a dark, secluded residential area and engaged her in conversation.
Roe was afraid for her safety in the unfamiliar neighborhood. Sensing her anxiety, Doe pressured her to ingest half of a pill that he said was Adderall. He took the other half. Roe began to feel less inhibited and confused, which made her more anxious. She said and did things in the car that she would not normally do or say and could only attribute her actions to the effects of the Adderall.
Doe put his hand on Roe's thigh. She told him that she was uncomfortable with him touching her. She felt afraid for her safety and asked if he was going to rape her, which made him angry. He said she needed to overcome her fear of physical touch; she needed to experiment in college and overcome her emotional obstacles. He asked about parts of her body and her views on marriage and sex. He ordered her to remove her pants. She removed them. He said he would not return them until she had performed additional actions and told her to take a series of actions, such as showing him how she masturbated. She told him that he did not have consent to touch her. She also told him to leave his pants on. He pulled his pants down and masturbated, telling Roe to look at him. At 5:00 a.m., Doe took Roe back to her apartment. When Roe said she was going to tell her boyfriend about the events, Doe became visibly upset and said not to tell her boyfriend about anything that happened. But if she ever wanted to get together to "hook up" to contact him.
Terhorst concluded Doe was responsible for violating EO 1097. Becerra sent a notice of the investigative outcome to Doe. Doe replied to Becerra that he had received the notice of the investigative outcome alleging "horrendous" findings of fact and was requesting a copy of the full investigation report, which he needed to file an appeal. CSUF provided the investigation report with attachments.
Administrative Appeal
On March 13, 2017, Doe, representing himself, submitted a brief statement and appeal. Doe stated that he was appealing based on the three grounds for appeal: the investigation outcome was unsupported by the evidence; prejudicial procedural errors impacted the investigation outcome to such a degree that the investigation did not comply with EO 1097; and new evidence not available at the time of the investigation. He did not describe any specific procedural error or new evidence or make any further argument on these points. In a single paragraph, Doe asserted that the decision was based on unsubstantiated statements and the situation was causing him a great deal of stress. He listed his achievements, including training with the United States Air Force.
The manager of investigations for the chancellor's office denied the appeal, because Doe had not shown that the determination was unsupported by the evidence, had not identified any prejudicial procedural errors on appeal, and had not offered any new evidence that was not available at the time of the investigation.
On April 12, 2017, the Orange County District Attorney's Office concluded there was insufficient evidence to charge Doe based on Roe's allegations.
After a hearing on the issue of sanctions, the hearing officer recommended expulsion. CSUF expelled Doe on June 8, 2017. Doe appealed the sanction, but the University denied his appeal.
Petition for Writ of Mandate
On July 16, 2019, Doe filed a petition for writ of administrative mandate on behalf of himself and all persons similarly situated who were disciplined under EO 1097 and EO 1098 during a four-year period. On February 14, 2020, Doe filed an amended petition for writ of administrative mandate. The University filed a motion to strike the class allegations, which the trial court granted without leave to amend on August 4, 2020. This court affirmed the order striking the class allegations. (Doe v. White (May 17, 2022, B307444) [nonpub. opn.].)
In Doe's opening brief in the trial court, he sought an order compelling the University to set aside his expulsion on several grounds, including that CSUF did not provide him with a fair hearing. Specifically, he argued that CSUF failed to provide adequate notice apprising him of the factual basis of the allegations against him and failed to provide the evidence against him. In addition, he argued that due process required CSUF to provide an opportunity to cross-examine the complainant and any adverse witnesses in a live, adversarial setting before a neutral finder of fact, rather than a single individual acting as investigator and adjudicator.
The University responded that CSU's policies provided for a fair process, which Doe received. CSUF provided notice of the activity that violated CSU policies, namely sexual misconduct and harassment against Roe on October 14 and 15, 2016, as Terhorst revealed at the initial interview. In addition, by attempting to provide Doe with an opportunity to review and respond to evidence, CSUF satisfied the requirement to provide the names of witness against Doe, an oral or written report of the facts to which each witness testified, and an opportunity to present a defense. By withdrawing and refusing to attend additional interviews, the University argued, Doe rejected CSUF's attempts to share the evidence on which the findings would be made. In addition, Doe did not raise "lack of notice" or "failure to share evidence" as grounds in his appeal, which precluded him from raising it in the trial court. The University also argued that case law examining the single-investigator model and live hearings with cross-examination did not apply retroactively.
Doe filed a reply brief, but did not address the University's argument that he had failed to raise his procedural fairness issues in his administrative appeal. After hearing dates on September 29, 2021, January 26, 2022, and March 16, 2022, the trial court denied the petition. The court found that although CSUF did not provide Doe with specific information about the factual allegations against him, CSUF provided sufficient information of the accusation in the initial notice by stating the nature of Roe's allegations was sexual misconduct. The court found that the University provided Doe with an opportunity to learn the specific factual allegations, but Doe decided not to receive additional information about Roe's allegations by electing not to participate in the investigation. In addition, Doe failed to raise his claim about notice in the administrative proceeding. By failing to raise "lack of notice" as a ground for appeal, he was precluded from raising the issue in the trial court.
The court found the University did not comply with its policy to advise Doe of any evidence upon which the findings would be based. The University conditioned Doe's right to review the evidence upon his participation in an interview. The University did not provide Doe with an opportunity to review the evidence and then decide whether he wished to present further relevant evidence, information, or arguments that could affect the outcome. Instead, the communications suggested that any review of the evidence would require Doe to review it in the context of an interview with a response to the allegations. It was not Doe's obligation to request a review of the evidence. However, Doe did not raise "failure to share evidence" as a ground for his administrative appeal, and therefore, he failed to exhaust the issue with the University.
The court found that credibility was not central to adjudication of Roe's allegations, and therefore, an opportunity for cross-examination, directly or indirectly, was not required. As a result of Doe's refusal to participate in the investigation and provide an explanation, the University had only Roe's account of the incident. The court acknowledged that Terhorst reviewed Doe's statement to the police, but concluded Terhorst was not faced with a credibility determination because Doe did not make the statements to Terhorst.
The court entered judgment in favor of the University on April 18, 2022. Doe filed a timely notice of appeal.
DISCUSSION
General Law Applicable to Student Discipline Proceedings
A. Writ of Administrative Mandate
A student may challenge a disciplinary sanction of suspension or expulsion at a private or public university by way of a petition for writ of administrative mandate. (E.g., Doe v. Regents of University of California (2021) 70 Cal.App.5th 521, 532-533 (UCSB (1)) [public university student petitioner]; Boermeester v. Carry (2023) 15 Cal.5th 72, 79-80 (Boermeester) [private university student petitioner].)
The student seeking a writ of administrative mandate must show that the institution: (1) acted without, or in excess of, its jurisdiction; (2) deprived the student of a fair administrative hearing; or (3) committed a prejudicial abuse of discretion. (Code Civ. Proc., § 1094.5, subd. (b).)
" 'The scope of our review from a judgment on a petition for writ of mandate is the same as that of the trial court.' [Citation.] '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.' [Citation.]" (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1072 (UCSD).) We review a challenge to the procedural fairness of the administrative hearing de novo. (Boermeester, supra, 15 Cal.5th at p. 85.) We also determine de novo whether the doctrine of exhaustion of administrative remedies applies. (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1023 (Foster).)
B. Fair Process
"Generally, a fair process requires notice of the charges and an opportunity to be heard. [Citation.]" (Doe v. Regents of University of California (2021) 70 Cal.App.5th 494, 513 (UC Davis).) "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.' [Citation.]" (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1078 (UCSD).) "Although no particular form of student disciplinary hearing is required under California law, a university is bound by its own policies and procedures." (Ibid.)
The fair trial aspect of section 1094.5 is not equivalent to the common law doctrine of fair procedure or to due process principles, but fair procedure cases are instructive. (Boermeester, supra, 15 Cal.5th at p. 87.) And although the common law doctrine of fair procedure is not identical to due process, the principles are similar, as both are flexible and context specific. (Ibid.)
"Where it applies, the common law doctrine of fair procedure requires private organizations to provide adequate notice of the charges and a meaningful opportunity to be heard. [Citations.] We have never held, however, that any specific or baseline procedures must be followed to satisfy these requirements." (Boermeester, supra, 15 Cal.5th at p. 90.) "Moreover, we have since noted that '[t]he common law requirement of a fair procedure does not compel formal proceedings with all the embellishments of a court trial [citation], nor adherence to a single mode of process. It may be satisfied by any one of a variety of procedures which afford a fair opportunity for an applicant to present his position.' [Citation.] In fact, we have observed that a formal hearing is not required in all circumstances; at times, it may be sufficient for a private organization to allow only a written response to the charges. [Citation.] We have further emphasized that, given 'the practical limitations on the ability of private institutions to provide for the full airing of disputed factual issues' [citation], courts 'should not attempt to fix a rigid procedure that must invariably be observed. Instead, the associations themselves should retain the initial and primary responsibility for devising a method which provides an applicant adequate notice of the "charges" against him [or her] and a reasonable opportunity to respond' [Citation.]" (Id. at p. 90.) Disciplinary hearings "need not include all the safeguards and formalities of a criminal trial" and the university" 'is not required to convert its classrooms into courtrooms.' [Citation.]" (UCSD, supra, 5 Cal.App.5th at p. 1078.)
Our resolution of the instant appeal does not require us to consider the effect of Education Code section 66281.8. The Legislature adopted section 66281.8 of the Education Code, effective January 1, 2021, providing requirements for sexual harassment grievance procedures. (Senate Bill No. 493 (20192020 Reg. Sess.).) It specifies procedures that public and private universities must implement to address incidents of sexual violence if the university receives state financial assistance and is not exempt. (See generally Ed. Code, § 66281.8.) The incident in this case, as well as the administrative resolution, occurred prior to the effective date of the legislation. Our Supreme Court found it noteworthy, however, that "the statute does not require universities to conduct live hearings featuring cross-examination of the accuser and other witnesses." (Boermeester, supra, 15 Cal.5th at p. 91.)
Exhaustion of Administrative Remedies
The University contends Doe cannot obtain a writ of mandate because he failed to exhaust his administrative remedies by raising his procedural claims in his administrative appeal. Although we disapprove of CSUF's failure to comply with its own notice provisions in this case, we agree that Doe failed to exhaust his administrative remedies to obtain relief.
A. General Law Applicable to Exhaustion Issues
If a statute, ordinance, or regulation provides an administrative remedy, a party must seek relief from the administrative body before requesting judicial relief. (Foster, supra, 61 Cal.App.5th at p. 1023; Tiernan v. Trustees of Cal. State University &Colleges (1982) 33 Cal.3d 211, 216, fn. 5 (Tiernan).) The requirement is based on the theory that the administrative tribunal is created by law to decide the issue being presented to the court. (Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, 453.)
The Trustees of the California State University are required by law to "adopt or provide for the adoption of specific rules and regulations governing student behavior along with applicable penalties for violation of the rules and regulations." (Ed. Code, § 66300.) During the relevant time, EO 1097 provided for administrative appeals to the chancellor's office based on one or more of the following issues: (1) the investigation outcome was not supported by the evidence; (2) prejudicial procedural errors had an impact on the investigation outcome to such a degree that the investigation did not comply with EO 1097; or (3) new evidence that was not available at the time of the investigation.
A party's administrative remedy is considered to have been exhausted at the conclusion of all available, nonduplicative administrative review procedures. (Ibid.) The purpose of the rule is to allow the administrative agency to decide matters within the agency's expertise, respond to objections and develop the administrative record for review, and correct errors before the agency's actions are subjected to judicial review. (Ibid; see Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 322 [exhaustion rule mitigates damages, acknowledges quasi-judicial tribunal's expertise, and promotes judicial economy].) "Additionally, absent an exhaustion rule, a litigant might have an incentive to 'sandbag' - in other words, to 'avoid securing an agency decision that might later be afforded deference' by sidestepping an available administrative remedy." (Hill RHF Housing Partners, L.P. v. City of Los Angeles (2021) 12 Cal.5th 458, 478-479.)
"In order to satisfy the exhaustion of administrative remedies requirement, 'the exact issue raised in the lawsuit must have been presented to the administrative agency so that it will have had an opportunity to act and render the litigation unnecessary.' [Citations.]" (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 441 (Harrington).) Although less specificity is required to preserve an issue for appeal than in a judicial proceeding, the objections must be sufficiently specific to provide the administrative body with the opportunity to evaluate them and respond. (United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074, 1091.) "Generalized objections are not sufficient to preserve specific legal and factual issues for judicial review." (Harrington, supra, 16 Cal.App.5th at p. 441.)
The requirement to exhaust administrative remedies before resorting to the courts is a procedural rule, not a matter of judicial discretion. (Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 677.)" 'Exhaustion of administrative remedies is, in short, "a jurisdictional prerequisite to resort to the courts." [Citation.] Its rationale is the prevention of interference with the jurisdiction of administrative tribunals by the courts, which are only authorized to review final administrative determinations. [Citation.]" (Harrington, supra,16 Cal.App.5th at p. 441.)
California courts have recognized exceptions to the exhaustion doctrine. (Foster, supra, 61 Cal.App.5th at p. 1025.) As relevant in this case, a party is not required to exhaust administrative remedies when: (1) the administrative remedy is inadequate; (2) the administrative remedy is unavailable; or (3) the aggrieved party can state that the administrative agency has declared what its ruling will be, such that the administrative remedy is futile. (Ibid.)
B. Application
In this case, EO 1097 expressly provided that before or during the initial interview, the coordinator was required to provide a description of the allegations against the accused student and a full opportunity to respond to the allegations. In addition, before reaching a final conclusion or issuing a report, the investigator was required to advise the accused student, or at least offer to advise him, of any evidence on which the findings would be based, and provide an opportunity to respond to the evidence. In other words, the policy provided for notice, a right to review the evidence, and a full opportunity to respond to the allegations.
EO 1097 also explicitly authorized an appeal from the investigation report on the ground that prejudicial procedural errors had an impact on the outcome to such a degree that the investigation did not comply with EO 1097. Doe's contentions that he was not provided a fair proceeding because he did not receive adequate notice of the allegations against him, was not provided the evidence relied upon by the factfinder, and was not provided an adequate opportunity to respond to the allegations through cross-examination of witnesses in a live hearing were all procedural errors that he could have raised in his administrative appeal. He did not, however, raise any specific procedural errors in his administrative appeal. We agree with the trial court that Doe failed to exhaust his administrative remedies.
C. Discretion to Consider New Issues on Appeal
Rather than argue that he exhausted his administrative remedies, Doe contends this court should consider his procedural challenges because they involve pure questions of law on undisputed facts. We disagree with his analysis, and to the extent that we have discretion to hear the issues, we decline to do so.
A litigant must make a full presentation of all issues at all stages of the administrative proceedings before seeking judicial review. (Sustainability, Parks, Recycling &Wildlife Defense Fund v. Department of Resources Recycling &Recovery (2019) 34 Cal.App.5th 676, 695 (Sustainability).)"' "The requirement that a litigant present his or her arguments and evidence fully at the administrative hearing level is analogous to the doctrine of exhaustion of administrative remedies, though it is based on different policies." (1 Cal. Administrative Mandamus: Laying the Foundation at the Administrative Hearing (Cont.Ed.Bar 3d ed. ([2015]) § 3.49, p. [3-36] ([Cal.] Administrative Mandamus).))' [Citation.]" (Sustainadi/ity, supra, 34 Cal.App.5th at pp. 695696.)
"Unlike exhaustion of administrative remedies, which is a jurisdictional requirement [citation], forfeiture for failure to preserve issues affords some discretion to the reviewing body. A treatise on administrative hearings notes: 'At the administrative proceeding, a party must preserve all points he or she intends to urge on appeal. Authorities differ on whether this doctrine of preservation of issues is part of the exhaustion of remedies or is a separate but related rule. Professor Pierce includes it in his discussion of exhaustion of administrative remedies. 2 Pierce, Administrative Law Treatise § 15.8 (5th ed 2010). Cooper views it as a separate but related rule. 2 Cooper, State Administrative Law 595 (1965). The preservation of issues doctrine differs from the exhaustion of remedies doctrine. The latter is jurisdictional, while the former does not bar a reviewing court from considering an issue not raised before the agency when circumstances warrant (e.g., when an injustice would result). [Citations.]' (Cal. Administrative Hearing Practice (Cont. Ed. Bar 2d ed. (2013) § 8.108, p. 8-69.))" (Sustainadi/ity, supra, 34 Cal.App.5th at p. 697.)
The same reasoning underlies both doctrines: ensuring the administrative agency has an opportunity to evaluate and respond to articulated factual issues and legal theories before the agency's actions are subjected to review. (Sustainabi/ity, supra, 34 Cal.App.5th at pp. 697-698.)" 'It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or "skeleton" showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. [Citation.] The rule compelling party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadowplay.'" (Harris v. A/coho/ic Beverage Contro/ Appea/s Bd. of Ca/. (1961) 197 Cal.App.2d 182, 187.)
In this case, Doe objected to Terhorst about the lack of notice, but did not raise any issue about his right to review the evidence against him or about cross-examination of witnesses during the investigation process. In Doe's administrative appeal, in which he was authorized to challenge prejudicial procedural errors and could raise new legal issues for the first time based on undisputed facts, he did not raise any specific procedural issue for administrative review. By failing to challenge the administrative procedure during the investigation process or in his administrative appeal, he failed to exhaust his administrative remedies and did not preserve procedural issues for review.
In addition, we disagree that Doe's procedural challenges involve pure questions of law based on undisputed facts. For example, at the core of this appeal is a significant factual dispute between the parties: whether Doe refused to hear the allegations and evidence against him. Even if we had discretion to consider the procedural issues that Doe failed to raise in the administrative proceeding, we would decline to do so. We cannot criticize the University for something that Doe never raised during the investigation or in his administrative appeal, particularly when there are factual matters in dispute.
D. Administrative Remedy was Available
For the first time in his reply brief on appeal, Doe contends that he was excused from exhausting administrative remedies because the administrative remedies were unavailable to him. This is incorrect.
In Foster, supra, 61 Cal.App.5th at pp. 1025-026, the appellate court considered whether an inmate was excused from exhausting administrative remedies through an inmate grievance procedure because the remedies were effectively unavailable to him. The Foster court explained that the ordinary meaning of "available" was that it was accessible and could be used to accomplish a purpose. (Ibid.) The court identified three situations in which an administrative remedy provided in the inmate grievance process could not be used to obtain relief. (Ibid.) "First, an administrative procedure is unavailable when, despite what regulations or guidance materials may promise, it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates. [Citation.] Second, an administrative scheme might be so difficult to understand that no ordinary prisoner can discern or navigate it and, therefore, for practical purposes, the administrative scheme is incapable of use. [Citation.] Third, an administrative procedure is unavailable 'when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.' [Citations.]" (Ibid.)
In this case, the administrative remedy provided in EO 1097 was available to Doe, as Doe filed an administrative appeal that was processed by the chancellor's office. He does not contend that the administrative procedure was effectively a dead end because the University routinely refused to provide any relief, or that the administrative scheme was so difficult to understand that it was incapable of use as a practical matter, or that the administrators thwarted students from using the administrative procedures. Instead, Doe blends legal citations concerning the availability of an administrative remedy with arguments about the adequacy of the administrative remedy in this case. We conclude that Doe was not excused from exhausting his administrative remedies due to unavailability of the administrative remedy.
E. Administrative Remedy was not Inadequate
To the extent that Doe contends for the first time in his reply brief that he was excused from exhausting administrative remedies because they were inadequate, we disagree.
A party is not required to exhaust an available administrative remedy if the remedy is inadequate. (Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 342.) For example, if the administrative remedy does not satisfy due process standards, exhaustion is excused. (KCSFV I, LLC v. Florin County Water Dist. (2021) 64 Cal.App.5th 1015, 1037.) "Due process, though, 'does not require any particular form of notice or method of procedure. If the [administrative remedy] provides for reasonable notice and a reasonable opportunity to be heard, that is all that is required. [Citations.]' [Citation.]" (Bockover v. Perko (1994) 28 Cal.App.4th 479, 486.)
EO 1097 provided for administrative appeals based on prejudicial procedural errors, which was an adequate administrative remedy in this case. Doe does not contend the administrative appeal process was unfair or failed to comply with due process. He contends, however, that the administrative appeal process was inadequate because it was limited to errors that resulted in the investigation failing to comply with EO 1097. He also contends that the relief provided by a successful administrative appeal was limited to reopening the campus investigation, whereas in this litigation, he seeks to set aside the findings and sanctions against him. Exhaustion of remedies is required, however, even if the administrative remedy does not dispose of the entire dispute or provide the precise relief sought. (See Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 501; Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 388.)
The errors that Doe alleges in this action are the same procedural errors that he was authorized to raise in his administrative appeal under EO 1097. EO 1097 explicitly provided for Doe to receive a description of the allegations against him and be advised of any evidence on which findings would be based. Had Doe objected in the administrative proceeding, the University could have remedied any defects. Doe asserts that the notice and evidence sharing required under EO 1097 differ from due process requirements, but Doe was required to exhaust his administrative remedies even if those remedies would not provide the precise relief that he sought, and without his exhaustion of his administrative remedies, we cannot evaluate whether the notice and evidence provided would have satisfied due process.
In addition, Doe contends that EO 1097 did not provide for students to cross-examination of witnesses in a live hearing. EO 1097 required, however, that accused students have a full opportunity to respond to the allegations against them. In his administrative appeal, Doe could have objected to the lack of an opportunity to cross-examine witnesses in a live hearing on the ground that he was not afforded an adequate opportunity to respond to the allegations against him as required by EO 1097. We conclude the administrative remedy was adequate to address Doe's procedural challenges.
We note that in Boermeester, supra, 15 Cal.5th 72, the California Supreme Court recently held that "there is no absolute right to a live hearing with cross-examination in administrative proceedings, even where constitutional due process applies." In addition, any failure to provide for direct or indirect cross-examination would have been harmless in this case, because Doe refused to participate in the administrative proceeding beyond the initial interview. While the University could provide notice of Roe's allegations and the evidence against Doe without his participation in the administrative process, cross-examination necessarily requires active participation in the proceeding. Since Doe refused to participate, he was not prejudiced by his inability to cross-examine witnesses.
We conclude that the administrative remedy in this case was not inadequate.
F. Futility
Doe also contends for the first time in his reply brief that he is excused from exhausting his administrative remedies because he can positively state what the administrative agency's decision would have been. This is incorrect.
"The 'futility' exception to the exhaustion of administrative remedies 'is a very narrow one.' [Citation.]' "The futility exception requires that the party invoking the exception 'can positively state that the [agency] has declared what its ruling will be on a particular case.'"' [Citations.]" (Foster, supra, 61 Cal.App.5th at p. 1025.)
Doe's administrative appeal was based in part on asserting that prejudicial procedural errors impacted the investigation outcome to such a degree that the investigation did not comply with EO 1097. Because the appeal was denied, Doe reasons that even if he had objected to the lack of notice, the lack of evidence sharing, and the absence of a live hearing allowing for cross-examination of witnesses, the chancellor's office would have found there were no procedural errors. The decision of the chancellor's office, however, was based on Doe's failure to specifically identify any procedural error; it did not conclude that there were no procedural errors. After setting forth Doe's statements and summarizing the investigation procedure, the chancellor's office concluded Doe had not identified any prejudicial procedural errors on appeal, and therefore, the findings and determinations of the investigation were affirmed. There is no evidence of how the agency would have ruled had Doe raised the specific issues that he challenged in this appeal.
DISPOSITION
The judgment is affirmed. Respondents Timothy P. White, in his capacity as Chancellor of the California State University, and the Board of Trustees of the California State University are awarded their costs on appeal.
We concur: RUBIN, P. J., KIM, J.