Doe v. White CA2/5

Filed 5/17/22 Doe v. White CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

JOHN DOE, B307444

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCP02973)
v.

TIMOTHY P. WHITE, as
Chancellor and Trustee, etc.,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los
Angeles County, Yvette M. Palazuelos, Judge. Affirmed.
Hathaway Parker, Mark M. Hathaway and Jenna E.
Parker for Plaintiff and Appellant.
California State University Office of General Counsel,
Susan Westover and William C. Hsu; O’Melveny & Myers, Apalla
U. Chopra, Adam J. Karr, and Anton Metlitsky for Defendant
and Respondent.
__________________________________
 Petitioner and appellant John Doe appeals from an order
granting a motion to strike class certification allegations that was
entered 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 complaints. On appeal, Doe
contends common issues of law and fact predominate, his claims
and defenses are typical of the class, and a class action is a
superior method to individual litigation. We conclude the trial
court properly struck the class action allegations in this case
because individual issues predominate over common questions.
Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

University Policies

Between July 2015 and July 2019, the University’s policies
governing student complaints about sexual misconduct were
contained in Executive Order 1097, as revised in June 2015 (2015
EO 1097) and in October 2016 (2016 EO 1097). Under both
versions of the policy, after a complaint of sexual misconduct was
filed, a Title IX coordinator conducted an initial intake interview
with the complainant. The coordinator was required to explain
the investigation procedure and inform the complainant of
applicable rights, including the right to have an advisor present,
and discuss interim remedies. The coordinator would inform the

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complainant of the right to file a criminal complaint and offer to
assist with filing a criminal complaint.
Prior to or during the initial interview with the accused,
the coordinator was required to explain the procedure and the
accused’s rights, including the right to have an advisor present.
The coordinator must also provide the accused with a copy of the
University’s policy and a description of the complainant’s
allegations. The coordinator must also provide the accused “a full
opportunity to respond to the allegations, including scheduling
other meeting(s), accepting documentary evidence, and accepting
[the accused’s] list of potential witnesses[.]” With limited
exceptions, information about the complaint could be shared as
necessary with other campus employees and law enforcement;
confidentiality could not be ensured.
After reviewing the complaint and the information received
during the intake interview, the coordinator would make a
determination about whether the complaint fell within the scope
of the policy. If it was within the policy, the coordinator would
promptly investigate the complaint, or assign the investigation to
another investigator. If assigned to another investigator, the
coordinator was to monitor, supervise, and oversee all delegated
tasks, including reviewing investigation reports before they were
final. The policy provided that “The Complainant and [the
accused] shall have equal opportunities to present relevant
witnesses and evidence in connection with the investigation. . . .
[¶] Before reaching a final conclusion or issuing a final
investigation report, the Investigator shall have: a) advised the
Parties, or have offered to do so, verbally or in writing, of any
evidence upon which the findings will be based; and, b) given the
Parties an opportunity to respond to the evidence, including

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presenting further relevant evidence, information or arguments
that could affect the outcome. The Investigator will not reach a
final conclusion or issue an investigation report until giving
careful consideration to any such relevant evidence, information
or arguments provided by the Parties. The Investigator retains
discretion and authority to determine relevance.”
The policy expressly anticipated that a law enforcement
agency could be conducting a criminal investigation into the same
allegations, but stated that the procedures were separate
investigations; the University must complete its investigation as
promptly as possible, rather than wait for the police investigation
to conclude. The investigator was to prepare a report which
included a summary of 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 promptly provided to the coordinator, if
applicable, to review.
The coordinator would inform the complainant and accused
of the outcome of the investigation in writing, including a
summary of the allegations, the investigation process, the
preponderance of the evidence standard, the evidence considered,
the investigator’s findings of fact, a determination as to whether
the University’s policy was violated, and if so, any remedies to be
imposed.
A dissatisfied party could file an appeal with the
Chancellor’s Office on the ground that the outcome was not
supported by the evidence under the preponderance standard,
procedural errors prejudiced the outcome, or new evidence
existed that was not available at the time of the investigation.

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 Executive Order 1098 (EO 1098), effective in June 2015,
provided the University’s student discipline procedures during
the relevant time. The findings of the investigation, after the
appeal process was exhausted, were final. If the appropriate
sanction were not resolved through a conference with the accused
student, a hearing would be held to determine the appropriate
sanction. 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

On November 15, 2016, University student Jane Roe filed a
sexual misconduct complaint against fellow student Doe.
Coordinator Mary Bacerra informed Doe that allegations of
sexual misconduct had been made against him by Roe about an
alleged incident that took place off campus on October 18, 2016.
The charges were governed by 2016 EO 1097 and EO 1098.
The coordinator designated investigator Andy Terhorst to
investigate the allegations and determine whether Doe violated
University policy. Doe denied the allegations. There was no
hearing before an “impartial factfinder.” Terhorst concluded
Roe’s allegations were substantiated. Doe appealed the
determination, but the manager of investigations for the
chancellor’s office denied the appeal, because he had not shown
the determination was unsupported by the evidence under the
preponderance standard, that procedural errors had an impact on

5
the outcome, or any new evidence unavailable at the time of the
investigation.
A hearing officer recommended expulsion, which prevented
admission to any Cal State University and cancelled enrollment
for upcoming semesters. The University expelled Doe on June 8,
2017. Doe appealed, but the University denied his appeal on
June 30, 2017.

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 the policies at
issue. The University filed a motion to strike the class
allegations, which the trial court granted with leave to amend.
On February 14, 2020, Doe filed an amended petition for
writ of administrative mandate. Doe sought a writ of mandate
directing the University to vacate the findings and sanctions
against himself and all members of the class of persons similarly
situated to set aside findings and sanctions imposed under
policies that lacked fairness and due process.
The class was all California State University students
found responsible for sexual misconduct under 2015 EO 1097,
2016 EO 1097, and/or EO 1098, from July 16, 2015 through July
16, 2019. The members of the class were ascertainable from the
University’s internal records and required reports. The persons
in the class are so numerous that joinder is impracticable, and
the disposition of their claims in a class action rather than
individual actions will benefit the parties and the court.

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 A well-defined community of interest in the questions of
law and fact predominated over the interests of individual class
members. The policies, which have been rescinded, denied the
students accused of sexual misconduct the right to a fair hearing,
including access to all of the evidence prior to the adjudicator
making a determination and a hearing with cross-examination of
witnesses before a neutral, independent adjudicator.
The common questions of law and fact to be litigated
include: (1) whether the policies at issue complied with the law;
(2) whether the University failed to implement procedures that
provide adequate due process to students accused of sexual
misconduct at California State Universities; and (3) whether
findings and discipline imposed under the policies must be set
aside and vacated. These questions predominate over questions
that affect individual class members.
Doe’s claims were typical of the class, and he would fairly
and adequately represent the class interest. He did not have any
interests antagonistic to other class members, and the relief he
sought would inure to the benefit of class members generally.
The University was aware of the class of individuals who had
been improperly disciplined since at least September 2018, but
had taken no action to correct the deprivation of their rights.

Proceedings to Strike Class Allegations from Amended
Writ Petition

On May 29, 2020, the University filed a motion to dismiss
the amended writ petition or strike the class allegations. The
University argued that Doe was an inadequate class
representative, because he failed to assert claims that absent

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class members would reasonably expect to be preserved. Each
administrative proceeding was a highly individualized sexual
assault proceeding. The class proceeding would necessarily and
impermissibly waive numerous potentially superior grounds for
recovery that could afford putative class members relief if the
grounds raised in the petition fail, such as lack of jurisdiction or
findings unsupported by evidence.
In addition, even under a facial challenge of the former
policies, the trial court must examine in each case the evidentiary
record, the sanction imposed, and the specific procedures utilized
in order to determine whether a particular class member received
a fair hearing.
A class action was not a superior method of resolving the
dispute, because class members had an adequate incentive to
bring independent actions for equitable relief given the gravity of
the subject matter.
Also, Doe could not proceed anonymously and represent a
class, because he owed a fiduciary duty to absent class members.
The class members had a right to know who was directing their
litigation. And Doe’s individual claim was barred by the doctrine
of laches. Waiting more than two years to file a petition for relief
was unreasonable delay, because relevant witnesses had
graduated and their recollection of events after the lengthy
passage of time would have deteriorated. The University asked
the court to dismiss the amended writ petition entirely, or strike
the class allegations.
In support of the motion to strike, the University filed a
request for judicial notice of several documents, including writ
petitions filed against the University challenging administrative
actions against other individuals based on the sexual misconduct

8
policies, and Roe’s transcript showing she had graduated and was
no longer a student of the University. The University argued the
writ petitions in other cases illustrated the myriad allegations of
error raised with respect to the unique circumstances of each
disciplinary action. In addition, the University provided
pleadings in a matter filed by Doe’s attorney on behalf of a
different petitioner against the Regents of the University of
California seeking to bring a class action challenging sexual
misconduct policies. The trial court in that case had sustained a
demurrer to the class allegations, ultimately without leave to
amend, on the grounds that the issues were not subject to
common proof and individual questions would predominate.
In June 2020, Doe filed an opposition to the demurrer and
motion to strike. He argued that the class representative was not
required to allege the entire universe of claims that class
members may bring, and he could adequately represent the
interests of the class while using a pseudonym. Common issues
predominated, individualized issues were manageable, and a
class action was the superior means to resolve the cases. In
addition, his claim was not barred by laches. In support of the
opposition, Doe requested the court take judicial notice of
Executive Order 1097, as revised on March 29, 2019, which
superseded the investigation and resolution provisions of the
prior policies as applied in sexual misconduct cases in which a
severe sanction of suspension or expulsion could be imposed and
the credibility of a party or witness was central to the
determination. Doe also filed an objection to the University’s
request for judicial notice. The University filed a reply in support
of the demurrer and motion to strike.

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 After a hearing on July 28, 2020, the trial court issued an
order on August 4, 2020, granting the motion to strike without
leave to amend. The court found Doe was an inadequate
representative for the class, because he had not raised all of the
claims that class members would reasonably expect to be
asserted, such as the claim that the University lacked
jurisdiction over their conduct. In addition, although the
amended petition purported to allege a facial challenge to the
policies, it was more accurately characterized as an as-applied
challenge, because it did not seek prospective relief and required
consideration of the application of the policies in particular
individual circumstances. Doe had not identified any specific
language in the policies that he asserted was facially
unconstitutional. He had not alleged that the provisions
inevitably conflicted with constitutional rights. Fair hearing
requirements were flexible and did not require rigid procedures.
The court also found that there was no community of
interest, because whether witness credibility was a central issue
required an individual determination in every case. The court
found that the need for individual inquiry would not be alleviated
by creating sub-classes. A class action was not superior to
individual litigation, because class members had an adequate
incentive to bring independent actions. Because of the
individualized inquiry required, a class proceeding would not
streamline the process or reduce costs for the parties.
The court overruled the University’s demurrer to the
petition. The writ petition did not appear to be barred by any
applicable statute of limitations. Under the doctrine of laches,
Doe’s 25-month delay in filing the writ petition was
unreasonable, particularly because his current counsel had

10
represented him in the matter as early as June 2017, and ample
legal authority had been issued providing timely guidance. No
prejudice to the University appeared, however, at this stage of
the proceedings. The court granted the parties’ requests for
judicial notice. Doe filed a timely notice of appeal from the order.

DISCUSSION

Standard of Review

“A motion to strike, like a demurrer, challenges the legal
sufficiency of the complaint’s allegations, which are assumed to
be true. [Citation.]” (Blakemore v. Superior Court (2005) 129
Cal.App.4th 36, 53.) We review the ruling on the motion to strike
class allegations de novo. (Id. at p. 54.)

General Law Applicable to Student Discipline
Proceedings

A. Review Available by Writ of Administrative
Mandamus

A student may challenge a disciplinary sanction for sexual
misconduct at a private or public university by way of a petition
for writ of administrative mandate. (Doe v. Allee (2019) 30
Cal.App.5th 1036, 1060 (Allee); Doe v. Regents of University of
California (2021) 70 Cal.App.5th 521, 532–533 (UCSB (1)).) The
student seeking the writ of administrative mandate must show
that the institution: “(1) acted without, or in excess of, its
jurisdiction, (2) deprived the petitioner of a fair administrative

11
hearing, or (3) committed a prejudicial abuse of discretion.
([Code Civ. Proc., ]§ 1094.5, subd. (b); Doe v. University of
Southern California (2016) 246 Cal.App.4th 221, 239 (USC [(1)])
[§ 1094.5’s ‘fair trial’ requirement means there must be a fair
administrative hearing].) ‘“Abuse of discretion is established if
the [agency] 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.; see Clark v.
City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169.)”
(UCSB (1), supra, 70 Cal.App.5th at p. 532, fn. omitted.)
When the administrative decision does not concern a
fundamental vested right, the trial court reviews the
administrative record to determine whether the agency’s findings
and decision are supported by substantial evidence. (JKH
Enterprises, Inc. v. Department of Industrial Relations (2006) 142
Cal.App.4th 1046, 1057.) Where the procedural fairness of the
administrative hearing is at issue, the trial court reviews the
facts related to how the hearing was conducted and exercises its
independent judgment on the basis of the administrative record.
(See Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108
Cal.App.4th 81 [administrative decision was set aside based on
the trial court’s review of administrative hearing procedures
reflected in the administrative record]; City of Fairfield v.
Superior Court (1975) 14 Cal.3d 768, 776.)

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

12
Davis).) The university must follow its own policies and
procedures (ibid), and the accused student must have a full
opportunity to present defenses (Doe v. Regents of University of
California (2016) 5 Cal.App.5th 1055, 1104 (UCSD)).
“Beyond these standards, however, it is safe to say the law
is in flux regarding what procedures are required for student
disciplinary proceedings involving allegations of sexual
misconduct at colleges and universities.” (UC Davis, supra, 70
Cal.App.5th at p. 513.) “Fair hearing requirements are ‘flexible’
and entail no ‘rigid procedure.’ [Citations.]” (Allee, supra, 30
Cal.App.5th at p. 1062.) 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.) The formal rules of evidence are not required to be
applied. (Doe v. Regents of University of California (2018) 28
Cal.App.5th 44, 56 (UCSB (2)).) “But the recent trend has been
to expect more adversarial and criminal-trial-like procedures
when a student is accused of sexual misconduct.” (UC Davis,
supra, 70 Cal.App.5th at p. 513.)
In UCSD, the university allowed an accused student to
indirectly cross-examine the complainant by submitting written
questions to the hearing panel before the hearing, which the
panel asked the complainant. (UCSD, supra, 5 Cal.App.5th at p.
1084.) In November 2016, Division One of the Fourth District
held that when “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, . . . a
fair procedure requires a process by which the respondent may
question, if even indirectly, the complainant.” (Ibid.) The court

13
found the method of cross-examination employed by the
institution in UCSD was fair as a procedural matter. (Id. at p.
1085.)
In August 2018, in Doe v. Claremont McKenna College
(2018) 25 Cal.App.5th 1055, 1070, Division One of the Second
District similarly held that “where the accused student faces a
severe penalty and the school’s determination turns on the
complaining witness’s credibility,” “the complaining witness must
be before the finder of fact either physically or through
videoconference or like technology to enable the finder of fact to
assess the complaining witness’s credibility in responding to its
own questions or those proposed by the accused student.”
In January 2019, Division Four of the Second District
imposed procedural requirements in Allee, supra, 30 Cal.Ap.5th
1036, after finding 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 fact finder cannot be a single individual with the divided
and inconsistent roles [of investigator and fact finder].”
(Allee, supra, 30 Cal.App.5th at p. 1069.)

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 C. Effect of Education Code Section 66281.8

Doe alleged a class of California State University students
that were found responsible for sexual misconduct under the
policies at issue from July 16, 2015 through July 16, 2019. Our
resolution of the instant appeal does not require us to determine
any question concerning 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
(2019–2020 Reg. Sess.).) For example, section 66281.8,
subdivision (b)(4)(A)(viii), requires an institution to adopt
grievance procedures that allow the institution to decide whether
a hearing is necessary to determine whether any sexual violence
occurred, including consideration of whether the parties elected
to participate in the investigation and had the opportunity to
suggest questions to be asked of the other party or witnesses
during the investigation. Cross-examination may not be
conducted directly by a party or the party’s advisor. (Ed. Code,
§ 66281.8, subd. (b)(4)(A)(l).)
In addition, subdivision (g) of section 66281.8 enigmatically
provides, “(1) Any case law interpreting procedural requirements
or process that is due to student complainants or respondents
when adjudicating complaints of sexual or gender-based violence,
including dating or domestic violence, at postsecondary
educational institutions in the State of California shall have no
retroactive effect. [¶] (2) Any case law that conflicts with the
provisions of the act that adds this section shall be superseded as
of this statute’s effective date.”

15
 The California Supreme Court is considering the following
questions in Boermeester v. Carry, review granted, September 16,
2020, S263180: (1) whether the common law right to fair
procedure requires a private university to provide certain
procedural processes, such as cross-examination at a live hearing;
(2) whether the student subject to the disciplinary proceeding in
that case waived or forfeited any right to cross-examine witnesses
at a live hearing; 3) assuming it was error not to provide an
opportunity to cross-examine witnesses, was the error harmless;
and (4) the effect, if any, of Senate Bill No. 493 on the resolution
of the issues presented.
We need not determine any question related to application
of section 66281.8, subdivision(g), to resolve this appeal, because
as discussed below, Doe failed to demonstrate that common
questions predominate over individual issues.

Individual Issues Predominate

Doe contends the motion to strike should have been denied
because common issues of fact and law predominate over
individual issues. We disagree.
To certify a class under Code of Civil Procedure section 382,
“[t]he party advocating class treatment must demonstrate the
existence of an ascertainable and sufficiently numerous class, a
well-defined community of interest, and substantial benefits from
certification that render proceeding as a class superior to the
alternatives. [Citations.] ‘In turn, the “community of interest
requirement embodies three factors: (1) predominant common
questions of law or fact; (2) class representatives with claims or
defenses typical of the class; and (3) class representatives who

16
can adequately represent the class.”’ [Citation.]” (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021
(Brinker).)
“The ‘ultimate question’ the element of predominance
presents is whether ‘the issues which may be jointly tried, when
compared with those requiring separate adjudication, are so
numerous or substantial that the maintenance of a class action
would be advantageous to the judicial process and to the
litigants.’ [Citations.] The answer hinges on ‘whether the theory
of recovery advanced by the proponents of certification is, as an
analytical matter, likely to prove amenable to class treatment.’
[Citation.] A court must examine the allegations of the complaint
and supporting declarations [citation] and consider whether the
legal and factual issues they present are such that their
resolution in a single class proceeding would be both desirable
and feasible. ‘As a general rule if the defendant’s liability can be
determined by facts common to all members of the class,
a class will be certified even if the members
must individually prove their damages.’ [Citations.]” (Brinker,
supra, 53 Cal.4th at pp. 1021–1022, fn. omitted.)
“To assess predominance, a court ‘must examine
the issues framed by the pleadings and the law applicable to the
causes of action alleged.’ [Citation.] It must determine whether
the elements necessary to establish liability are susceptible of
common proof or, if not, whether there are ways to manage
effectively proof of any elements that may require individualized
evidence. [Citation.]” (Brinker, supra, 53 Cal.4th at p. 1024.)
Doe contends the common questions of law and fact to be
litigated include: (1) whether the policies at issue complied with
the law; (2) whether the University failed to implement

17
procedures that provide adequate due process to students
accused of sexual misconduct at California State Universities;
and (3) whether findings and discipline imposed under the
policies must be set aside and vacated. The common law right to
fair procedure applicable to the claims at issue provided students
accused of sexual misconduct with a right to cross-examine the
complainant and witnesses, directly or indirectly, if the accused
faced severe disciplinary sanctions and the credibility of
witnesses was central to the adjudication of the allegation.
The individual questions that would have to be determined
in the proposed class action far outweigh common issues, making
the claims unsuitable for a class action. The common issues
identified by Doe in this case concerning whether the University’s
policies, in the abstract, failed to provide due process are
relatively simple questions to determine: Doe sets forth a strong
case that the policies at the time provided insufficient protection
when evaluated against our current understanding of the law.
But a ruling on these common issues alone would not establish
that the University failed to provide any student with adequate
due process and would not require the findings or discipline
against any student to be set aside.
Rather, the trial court would need to address far more than
the validity of the prior policies in the abstract. It would need to
examine the unique facts of each individual case to determine
whether the University’s policies as applied denied the accused
student a fair proceeding. For example, the trial court would
need to determine the severity of the sanctions faced by each
student to assess the procedures necessary for a fair hearing
under the circumstances of that student’s case. The court would
need to review the administrative record of each proceeding to

18
determine the process that was actually provided to the accused
student, such as whether the student received all of the evidence
or was allowed any method of cross-examination. Critically, the
court would need to determine in each case whether the result
meaningfully relied on the credibility of a witness or was
established by other evidence, such as the accused student’s own
statements or written communications (e.g. text messages or
emails). We note as well that the court would have to make fact-
specific determinations about the University’s defenses in each
matter, including laches and the statute of limitations. The issue
of laches, for example, requires the University to show prejudice
within the unique circumstances of each proceeding.
Doe does not make any persuasive argument that these
issues are not implicated or significant in determining whether
due process was provided to any given member of the proposed
class. Doe instead suggests that the litigation could be managed
through the creation of subclasses. We disagree. An examination
of the unique facts of each proceeding, such as the import of
credibility, would nevertheless be required on an individualized
basis to create the subclasses. The class action mechanism is not
a suitable vehicle to resolve the claims in this case, because while
common questions concerning the adequacy of the University’s
policies are relatively easily resolved at an abstract level,
establishing the University’s liability would further require a
mini-trial as to each class member to resolve myriad individual
questions. The trial court properly struck the class allegations
from the writ petition in this case.

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 DISPOSITION

The order granting the motion to strike the class
allegations 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.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

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