Electronically FILED by Superior Court of California, County of Los Angeles on 06/05/2019 01:49 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by A. Brown,Deputy Clerk

1 ALEC SCOTT ROSE (¹165983)

CERTIFIED CRIMINALLAW SPECIALIST
2 Iaw office of alee rose, pc
12121 Wilshire Blvd. Suite 740
3 Los Angeles, CA 90025
(310) 877-5398
4 (866) 381-6839 fax
alee.rose@me.corn
5
Attorney for PETITIONER, JOHN DOE
6

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES
STANLEY MOSK COURTHOUSE

10

11 JOHN DOE, an Individual, Case No.: BS171416

12 PETITIONER, PETITIONER'S REPLY BRIEF IN SUPPORT

OF PETITION FOR WRIT OF MANDATE
13 vs.
TRIAL DATE: June 20, 2019
14 CALIFORNIAINSTITUTE OF TECHNOLOGY, a TIME: 8:30 a.m.
California Non-Profit Corporation, DEPT.: 82
15 IUDGE: Mary H. Strobel
Respondent. ACTION FILED: 11/13/2017
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PETITIONER'S REPLY BRIEF IN SUPPORT OF LAWOFFlCE OF ALEC ROSE, PC
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 TABLE OF CONTENTS

TABLE OF CONTENTS...

TABLE OF AUTHORITIES.

1. INTRODUCTION

II. CALTECH'S TITLE IX POLICY DEPRIVES STUDENTS FACING SERIOUS DISCIPLINARY

CHARGES WITH A FAIR HEARING ..
7
III. PETITIONER'5 FAILURE TO EXHAUST ADMINISTRATIVEREMEDIES IS EXCUSABLE
8 BECAUSE CALTECH S TITLE IX POLICY FUNDAMENTAILLYFLAWED

IV. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT CALTECH'S DECISION.......

V. CONCLUSION. ..10

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PETITIONER'S REPLY BRIEF IN SUPPORT OF LAWOFFICE OF ALEC ROSE, PC

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 TABLE OF AUTHORITIES

CASES

3
Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280, 29..
4
California Correctional Peace Officers Assn. v, State Personnel Bd. (1995) 10 Cal.4th 1133,

1148.
6
Doe v. Alice (2019) 30 Cal>pp.5th 1036.
7
Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055... .6
8
Doe v. Regents of University of California (Santa Barbara) (2018) 28 Cal.App.5th 44............6, 9
9
Farmer v. City ofInglevvood (1982) 134 Cal>pp.3d 130. .7
10
Lone Star Security & Video (2012) 209 Ca).App.4th 445. .9
11
Public Employment Relations Bd. v. Superior Court (1993) 13 CaLApp.4th 1816..........................7
12
Roth v. City of LosAngeles (1975) 53 Cal.App.3d 679.. .7
13

STATUTES
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Code Civil Procedure section 1094.5 subd. (b... .6

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 2 INTRODUCTION

3 Petitioner John Doe implores this Court to issue a mandate commanding Caltech to

4 set aside Caltech's Title IX determinations and sanctions. In Petitioner's Opening Brief

5 (ePOB"J, Petitioner argued that Caltech's Title IX investigation failed to afford Petitioner a

6 fair process. Caltech's policy deprived Petitioner access to the evidence against him,

7 deprived Petitioner of the opportunity to cross-examine his accusers before impartial

8 factfinders and deprived Petitioner a hearing. Petitioner additionally argued that Caltech'

9 factual determination that Petitioner violated the Sexual Misconduct Policy was not

10 supported by substantial evidence.

11 In their Respondent's Brief ("RB"J, Caltech ignores Petitioner's claims that Caltech'

12 Title IX policy deprives students of a fair process. Rather, Caltech argues that its Title IX

13 determination and sanctions should be upheld because Petitioner failed to exhaust his

14 administrative remedies and because the determinations were supported by substantial

15 evidence. As set forth below, these arguments are unavailing.

16

17 CALTECH'S TITLE IX POLICY DEPRIVES STUDENTS FACING SERIOUS DISCIPLINARY

18 CHARGES WITH A FAIR HEARING

.19 Colleges and Universities must have policies in place that afford its students a fair

20 hearing in Title IX disciplinary proceedings. (Doe v. Alice (2019) 30 Cal.App.5th 1036.J In

21 Petitioner's Opening Brief, Petitioner asserts that Caltech's Title IX policy deprives students

22 facing severe disciplinary sanctions a fair process. Respondent argues that because fair

23

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 1 hearing requirements are "flexible", Caltech's Title IX policy cannot be found to be facially

2 defective. Respondent is incorrect.

3 While the courts have recognized that fair hearing requirements must be "flexible"

4 depending upon the seriousness of the allegations, there still must be policies and

5 procedures in place to ensure student receive a fair hearing. In cases involving allegations

6 of sexual misconduct, where determination pivots on witness credibility and the accused

7 student may face severe consequences, "fundamental fairness requires, at a minimum, that

8 the university provide a mechanism by which the accused may cross-examine those

9 witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by

10 other means (e.gv videoconferencing) before a neutral adjudicator with the power

11 independently to find facts and make credibility assessments." (Doe v. Alice, supra, 30

12 Cal>pp.5th at p. 1069.) As argued in Petitioner's Opening Brief, Caltech's Title IX policies

13 and procedures do not afford students facing severe disciplinary sanctions even the

14 "minimum" of what fundamental fairness requires.

15 A review of Caltech's written Title IX policy document that there are no policies in

16 place to ensure that students receive a fair hearing. Caltech's written Title IX policy does

17 not contain any provisions for conducting a live hearing regardless of the seriousness of the

18 allegations or the severity of the sanctions that could be imposed. The written policy does

19 not contain any procedure for students facing serious disciplinary sanctions Io cross-

20 examine witnesses. There is no written policy permitting students access to all of the

21 evidence to be consider by the adjudicator so that they can fairly mount a defense.

22 (AR0015-AR0021.) Because Caltech's written Title IX policy fails to ensure students facing

23 severe disciplinary sanctions are afforded the "minimum" of what fundamental fairness

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 1 requires, Caltech's Title IX policy is facially defective. (Doe v. Alice, sError! Bookmark not

2 defined.upra, 30 Cal.App.518 at p. 1039.)

3 As detailed in Petitioner's opening brief, Caltech's failure to have policies and

4 procedures in place to protect a student's right to a fair hearing, resulted in Petitioner

5 being deprived of a fair hearing when he was facing severe disciplinary sanctions.

6 Petitioner did not receive a live hearing. He did not receive the opportunity to cross-

7 examine witnesses. The ultimate adjudicator never personally observed witness testimony

8 to independent assess credibility. (See POB pp. 20-24; Doe v. Allee, supra, 30 Cal.App.5th at

9 p 1039 Doe v Claremont wc!fonna College (2018) 25 Cal App 5thsrrort Eoottmarttnotde"nerh

10 1055, 1070.) Petitioner was even denied access to evidence to effectively mount a defense.

11 (See POB p. 25-27; Doe v. Regents of University of California (Santa Barbara) (2018) 28
12 CaLApp.5th 44, 57.)

13 Caltech's failure to afford Petitioner a fair hearing despite the severity of the

14 disciplinary sanctions mandates that Caltech's Title IX determinations and sanctions be set

15 aside. (Code Civil Procedure section 1094.5 subd. (b)

16

17 PETITIONER'S FAILURE TO EXHAUST ADMINISTRATIVEREMEDIES IS EXCUSABLE

18 BECAUSE CALTECH'S TITLE IX POLICY FUNDAMENTAILLYFLAWED

19 In their Respondent's brief, Caltech asserts that Petitioner's claim must be dismissed

20 because Petitioner failed to exhaust his administrative remedies. (RB p. 11.) Respondent

21 correctly notes that, in general, a party must exhaust administrative remedies before

22 resorting to the courts. (Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280, 292; see

23 California Correctional Peace OfficersAssn. v. State Personnel Bd. (1995) 10 Cal.4th

PETITIONER'S REPLY BRIEF IN SUPPORT OF LAW OFFICE OF ALEC ROSE, PC

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 1 113Error! Bookmark not defined.3, 1148.) (RB p. 12.) However, exceptions to the

2 exhaustion rule exist. (Public Employment Relations Bd. v. Superior Court (1993) 13

3 Cal.App.4th 1816.) As detailed in Petitioner's opening brief, the failure to exhaust

4 administrative remedies does not bar petitioner from resorting to the court where the

5 administrative remedies are inadequate. (Farmer v. City of lnglewood (1982) 134

6 Cal,App.3d 130, 137.)

7 Contrary to Respondent's assertion, Petitioner is not arguing that Caltech Title IX

8 violated its own policy in its investigation and determination of facts in Petitioner's case.

9 (RB p. 15.) Rather, Petitioner contends that Caltech's Title IX policy as a whole, including

10 the appeal procedure, denies due process on its face. As argued in the opening brief and

11 above, Caltech's written Title IX policy fails to guarantee that students facing pevere

12 sanctions will receive a fair hearing. Caltech's appeal policy also fails to square with the

13 requirements of due process. The filing of an appeal does not create an opportunity for the

14 student to have a live hearing before a neutral factfinder. The filing on an appeal does not

15 afford the petitioner access to all of the evidence relied upon by the factfinder. And, the

16 filing of an appeal does not afford Petitioner the opportunity to cross-examine witnesses to

17 test witness credibility. As recognized by Respondent, ifa remedy does not osquare with

18 the requirements of due process" the "exhaustion doctrine has no application." (RB p. 16,

19 citing Roth v. City of Los Angeles (1975) 53 Cal.App.3d 679, 688.) Because Caltech's Title IX

20 policy, including their appeal policy, does not afford students like Petitioner a fair hearing,

21 Petitioner failure to exhaust administrative remedies is not fatal to his claim.,

22 Furthermore, Petitioner should be excused from the exhaustion requirement

23 because Petitioner has made a showing that filing an administrative appeal would have

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 1 been futile. Caltech's Title lX policy allows for appeals based on "procedural errors" only,

2 not on the basis that Caltech's policy and procedures on the whole are fundamentally

3 flawed and lacking in due process. (AR0081.) Caltech provides no internal mechanism to

4 challenge the sufficiency of its policy as a whole, making resort to the courts through

5 mandamus necessary.

6 Similarly, Caltech's limited appeal policy does not provide a mechanism for a

7 student to challenge the sufficiency of the evidence. Caltech's policy only allows for an

8 appeal ifthe student has "new" evidence for the administration to consider. Absent a

9 mechanism for Petitioner to challenge the sufficiency of the evidence in an administrative

10 appeal, Petitioner is forced to seek court intervention.

11 As noted in Petitioner's Opening Brief, throughout the investigation process,

12 Petitioner was not provided access to all the evidence relied upon by the factllnders. He

13 did not have transcripts of the witness interviews, the investigators'eports or notes of the

14 meetings the Title IX Coordinator had with witnesses. (AR0019, 32.j Without access to

15 the evidence considered by the factfinders, it was factually impossible for Petitioner to

16 know ifthere was "new" evidence that could form the basis for an administrative appeal.

17 Because there was no mechanism for Petitioner to pursue an administrative appeal

18 challenging Caltech's Title IX policy as a whole on due process grounds, or to pursue an

19 appeal challenging the sufficiency of the evidence, filing an administrative appeal on these

20 grounds would have been futile. Petitioner's failure to exhaust Caltech's limited

21 administrative remedies should therefore be excused.

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 IV.

2 SUBSTANTIALEVIDENCE DOES NOT SUPPORT CALTECH'S DECISION

3 Ifthis court determines that Petitioner was deprived of a fair hearing, the court does

4 not need to reach the issue of whether the factual findings are supported by the evidence.

5 Doe v. Regents of University of California (Santa Barbara), supra, 28 Cal.App.5th at p. 61.)

6 However, ifa review of the evidence is warranted, Petitioner contends that Caltech'

7 determinations were not supported by the evidence.

8 Petitioner maintains that under either a de novo standard of review or under the

9 more deferential standard of review, the evidence before the Caltech adjudicator was

10 insufficient to support the determinations by a preponderance of the evidence. The

11 allegations against Petitioner were based upon unsupported allegations sexual misconduct

12 involving four students/former students and one employee. While Respondent correctly

13 notes that "the testimony of a witness whom the trier of fact believes, whether contradicted

14 or uncontradicted, is substantial evidence (RB p. 16; citing Lone Star Security & Video v.

15 Bureau ofSec. and investigative Services (2012) 209 CaLApp.4'" 445, 458), the witnesses in

16 this case never testified before the ultimate arbitrator. The credibility of their testimony

17 was never tested or evaluated by the ultimate arbitrator. None of the witnesses were

18 subject to cross-examination. None of the accused acts of sexual misconduct iwere

19 observed by other parties. None of the accusers had any documents in support of their

20 claims. All of the accusations of sexual misconduct were denied by Petitioner.

21 As argued more fully in the opening brief, each of the accounts of sexual misconduct
22 from each of the accusers was problematic. Student 1 had questionable motives for making

23 her allegations 8 months after the alleged misconduct occurred. Student 2 refused to

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 1 participate in the Title IX investigation following an initial interview with the investigation.

2 Student 3 admitted that Petitioner never physically forced her to engage in sex. Student 4

3 gave varying and conflicting accounts of the alleged misconduct and admitted to having no

4 memory of the events. Employee 1 also had gaps in her memory and admitted that she had

5 no memory of the events when Petitioner allegedly engaged in non-consensual sex with

6 her. With regard to each accuser, there was no more evidence in support of the accuser's

7 claims than there was in support of Petitioner's denials. The administrative record simply

8 does not support a finding by a preponderance of the evidence that Petitioner engaged in

9 the sexual misconduct as alleged.

10

CONCLUSION

12 Petitioner was not afforded the fair process that is required in Title IX investigations

13 and related administrative proceedings where a student's educational future and potential

14 livelihood are at stake. Furthermore, the evidence in support of Caltech's determinations is

15 not sufficient to find beyond a preponderance of the evidence that Petitioner engaged in

16 the alleged acts of sexual misconduct.

17 Petitioner respectfully requests this court issue a writ of mandate correcting the

18 outcome of the unfair and incorrect process that let to the deprivation of Petitioner's

19 vested educational interest.

20 LAW SE

21

22
Dated: June 5, 2019 by:
23
PETITIONER'S REPLY BRIEF IN SUPPORT OF
PETITION FOR WRIT OF MANDATE- Page 10
ALEC ROSE
Attorney for PETITIONER, JOHN DOE
LAW OFFICE OF ALEE ROSE, FC
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