Filed 9/19/18; Modified and certified for pub. 10/9/18 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION SEVEN

JOHN DOE,                                            B281961

        Plaintiff and Respondent,                    (Los Angeles County
                                                     Super. Ct. No. BS159753)
        v.

UNIVERSITY OF SOUTHERN
CALIFORNIA, et al.,

        Defendants and Appellants.


      APPEAL from the judgment of the Superior Court of
Los Angeles County, Howard L. Halm, Judge. Reversed and
remanded.
      Cole Pedroza, Kenneth R. Pedroza, Maureen M. Home;
Law Offices of Denise Ann Nardi and Denise A. Nardi for
Defendants and Appellants University of Southern California
and Ainsley Carry.
      The Law Offices of John Derrick and John Derrick for
Plaintiff and Respondent.
                       __________________
      The superior court granted former University of Southern
California student John Doe’s petition for writ of administrative
mandamus and ordered USC’s Office of Student Judicial Affairs
and Community Standards (SJACS) to vacate its decision to
discipline Doe for violating the university’s academic integrity
                            1
standards. On appeal USC contends the superior court erred in
concluding there was insufficient evidence to support the
SJACS’s finding that Doe and a second student had cheated on
the final examination in Biology 220. In response Doe asserts,
even if the administrative record contains substantial evidence of
his academic dishonesty, the superior court’s judgment should be
affirmed because USC’s internal discipline and review procedures
as applied in this case lacked fundamental fairness and did not
comply with the university’s own rules, an argument the superior
court rejected.
       Although reasonable factfinders could disagree, substantial
evidence supports USC’s decision that Doe cheated, a
determination reached after a fair, albeit less than perfect,
process. Accordingly, we reverse the judgment and remand with
directions to the superior court to deny the petition for writ of
administrative mandamus.
      FACTUAL AND PROCEDURAL BACKGROUND
    1. The Allegations of Cheating
    On May 27, 2015 the professors and the laboratory
manager for USC’s course BISC 220, General Biology: Cell


1
      Dr. Ainsley Carry, sued in his then-official capacity as
USC’s Vice Provost for Student Affairs, is also an appellant. No
issue raised in the appeal is specific to Dr. Carry. For simplicity,
the opinion refers only to USC.



                                 2
Biology and Physiology, after speaking with Doe about their
concerns, submitted a report of academic integrity violation to
SJACS. The report stated the professors believed Doe and a
second student (identified in the case as Student B) had shared
answers on the final examination through written notes on their
examination booklets and recommended a grade sanction of “F”
for the course.
      According to the report, the belief that cheating had
occurred was based on the following facts: Doe and Student B sat
next to each other and had the same version of the multiple
choice examination although two versions with shuffled questions
were usually distributed in a manner intended to ensure that
                                                   2
adjacent students would receive different versions. Doe’s and
Student B’s Scantron® answer sheets had identical answers for
46 of the 50 questions, the greatest number of identical answers
of all 8,002 pairs of students who took the same version of the
             3
examination. Both Doe and Student B wrote proposed answers
in large letters in the left margin of the examination booklets
that would have been visible to the student seated next to each of
them; Student B had written proposed answers for all 50




2
      The report stated Doe and Student B could have been given
the same version of the examination because the teaching
assistants distributed them from both sides of the row, “which is
not our usual procedure,” but that “the exams could also have
been intentionally swapped during the test distribution.”
3
      The anomalous pairing data were initially identified by a
software program.



                                3
                               4
questions; Doe for 33 questions. Comparison of the proposed
answers to the students’ Scantron® answers indicated a pattern
of sharing answers: On all but one question where Doe wrote a
proposed answer in the margin, Student B filled in the Scantron®
                 5
with that answer. Only two of Doe’s answers on his Scantron®
sheet differed from Student B’s proposed answers for those
questions for which Doe did not write a proposed answer in the
margin. Student B outperformed his historical average (a “C”) by
answering 40 of the questions correctly; Doe maintained his
performance level, answering 42 questions correctly.
      A course professor and the laboratory manager spoke to
Doe and Student B separately about their concerns. Both
students denied any wrongdoing, and each stated he always
writes answers in the margins of multiple choice examinations
before filling in the Scantron® sheet to facilitate checking
answers before completing the test.
      2. USC’s Disciplinary Process and the Finding of Academic
         Dishonesty
          a. The summary administrative review
      Based on the faculty report, Doe was advised he was
accused of violating the university’s Student Conduct Code
sections 11.13.A, which prohibits external assistance during an

4
       Subsequent review of the examination papers showed that
Student B wrote proposed answers for 47 of the 50 questions
although he indicated answers to two additional questions with
circles on the examination, rather than letters in the margin; Doe
wrote proposed answers for 34 questions, not 33.
5
       In fact, two of Student B’s answers on his Scantron® were
different from those proposed answers. The faculty’s initial
analysis transposed the proposed answers to Question 38.



                                4
examination, including copying or attempting to copy material
from another student and allowing another student to copy from
an examination or assignment; 11.15.A, which prohibits
attempting to benefit from the work of another; and 11.21, which
prohibits any act that gains or is intended to gain an unfair
academic advantage by an act of academic dishonesty. Doe was
provided with a summary of the student conduct review process
and referred to the portion of the student handbook that
described that process in detail. He was asked to schedule a
                                                              6
meeting with the SJACS review officer assigned to the case.
      Upon receiving notice of the charges of academic
dishonesty, Doe requested a copy of the faculty report that had
been submitted to SJACS. Several days later Doe was provided a
copy of the report itself, but not copies of the examination
booklets with handwritten letters in the margins, the Scantron®
answer sheets or the chart showing the faculty’s comparison of
answers. The review officer advised Doe he was allowed access
to, but not copies of, the examination documents.
      Doe met with the review officer on July 1, 2015 and
described what had happened from his perspective. He insisted
he had not cheated and had no motive to cheat based on his past
performance in the Biology 220 course and his excellent overall
academic standing at USC. As he had when contacted by the
professor who prepared the initial report, Doe explained he wrote
proposed answers for questions he wanted to check—one letter if
he wanted to double check his answer; two letters if he was
unsure of the answer; nothing in the margin if he was sure of the


6
      The initial step in USC’s disciplinary process is identified
as a summary administrative review.



                                 5
answer. Doe said he did not know how he came to have the same
version of the examination as Student B. Doe accused Student B
of cheating, suggesting he had copied from Doe’s papers. Doe
acknowledged he knew Student B, but said the two had not
studied together for the examination.
       The SJACS review officer told Doe, based on the current
information in the case, he would find by a preponderance of the
evidence that Doe had engaged in the charged academic
violations. The review officer, however, intended to meet with
Student B before reaching a final decision.
       The review officer met with Student B several days later.
According to the report ultimately prepared by the review officer,
Student B disputed Doe’s statement that the two had not studied
together for the examination, recalling that they had done so on
one or two occasions and had also communicated about the
upcoming examination via text message and had viewed and
discussed recorded course lectures together.
       On July 15, 2015 Doe was notified that a suspension was
being considered as a sanction because this was his second
                            7
academic integrity violation and was told he could have an
attorney represent him in any further proceedings in the matter.
On July 21, 2015 Doe, accompanied by his mother as his adviser,
reviewed his own examination. Doe sent an email later that day
asking that he be allowed to review both examinations and the
Scantron® answer sheets. Approximately three weeks later, Doe,

7
      During the fall 2014 semester Doe had received a zero on a
chemistry assignment after he submitted a lab report that used
another student’s data and calculations. After initially denying
the misconduct, Doe eventually signed a form acknowledging his
actions had violated the Student Conduct Code.



                                6
accompanied by his father, was allowed to review both
examinations. At that time Doe gave the review officer the
results of a polygraph examination to show he had not shared
answers on the Biology 220 examination. He also submitted a
character reference from one of his professors.
       On August 14, 2015 Doe was given notice of the written
decision from the summary administrative review and advised of
his right to appeal to the Student Behavior Appeals Panel. The
report concluded Doe was “responsible for gaining an unfair
academic advantage during exam 4 in BISC 220 by collaborating
with, providing answers to, and/or receiving answers from a
classmate seated next to him.” This conclusion was based on the
highly unusual statistical similarities in the two students’
examination papers, as described in the faculty report; the fact
that Doe and Student B, although sitting next to each other, had
the same version of the examination; the use by both students of
large letters indicating proposed answers in the examination
margins; and Student B’s improved performance on this
examination compared to his prior grades in the class. Because
this was Doe’s second act of academic dishonesty, the report
imposed as sanctions an “F” grade in the course, a two-semester
suspension and the requirement that Doe attend and successfully
complete an ethics workshop.
           b. Doe’s administrative appeal
       Doe appealed the review officer’s decision to the Student
Behavior Appeals Panel, filing a lengthy document with exhibits
in support of his contentions the review officer’s decision lacked
evidentiary support, the review officer violated the procedural
protections for students set forth in the Student Conduct Code




                                7
                                          8
and the sanctions imposed were excessive. Doe argued
Student B alone had cheated and contended that Student B was
responsible for switching the examination papers so that he and
Doe had the same version of the examination. Doe described his
outstanding academic record and insisted, “The notion that I
would receive help from a student I have historically
outperformed is illogical.” He also presented another faculty
reference and statements from several students confirming that
he had studied alone for the examination. Doe also argued the
two-semester suspension was excessive and asserted the SJACS
decisionmaking process was procedurally unfair.
      The three-member appeals panel denied Doe’s appeal. The
SJACS report and appeals panel decision were then reviewed by
the Vice Provost for Student Affairs, who approved the findings
and sanctions imposed.
      3. The Petition for Writ of Administrative Mandamus and
         the Judgment in Favor of Doe
      Doe filed a petition for writ of administrative mandate in
superior court on January 7, 2016 challenging the SJACS
decision and the appeals panel’s denial of his appeal on both
                                    9
procedural and substantive grounds. The petition requested an

8
      Section 15.00 of the USC Student Conduct Code provides
an appeal may be based on new evidence that is sufficient to alter
the decision or the contention that the review officer failed to
follow university rules or that the sanction imposed is excessive.
The appeals panel does not reweigh the evidence.
9
      The remedy of administrative mandamus is available to
review adjudicatory decisions of private organizations, including
universities. (See Doe v. University of Southern California (2016)
246 Cal.App.4th 221, 237 & fn. 9; Gupta v. Stanford University


                                8
immediate stay of all sanctions. The following day the court
stayed Doe’s suspension pending further order of the court.
       Following briefing and oral argument, the court issued a
13-page written decision on February 17, 2017 granting Doe’s
petition, finding SJACS’s decision to impose sanctions was not
supported by substantial evidence. In its amended judgment
entered March 14, 2017 the court ordered USC to vacate the
SJACS administrative decision and the sanctions that had been
imposed on Doe.
       In its statement of decision the court concluded Doe had
been provided a fair administrative hearing as required by Code
                                                10
of Civil Procedure section 1094.5, subdivision (b). “Petitioner
was provided with clear notice of the allegations against him and
was informed of USC’s written policies and procedures related to
the administrative review process. All evidence that SJACS
relied on in making its decision was made available to Petitioner
for review, and Petitioner did in fact review this evidence.
Petitioner had multiple face to face meetings with a
representative of SJACS. At these meetings Petitioner was
afforded the opportunity to object to the charges against him and
explain his version of facts. All indications are that USC fully
complied with its policies and procedures and conducted a fair
hearing.”
       Turning to SJACS’s findings, the court identified the
following undisputed facts: “Petitioner and Student B sat next to
each other during the exam. [¶] Although adjacent students


(2004) 124 Cal.App.4th 407, 411; Pomona College v. Superior
Court (1996) 45 Cal.App.4th 1716, 1722-1723.)
10
     Statutory references are to this code.



                                9
were supposed to have different versions of the exam, Petitioner
and Student B had the same version. [¶] Petitioner and
Student B had the greatest number of identical answers out of
every pair of students with their version of the exam
(46/50 answers were answered identically). [¶] Both Petitioner
and Student B wrote large proposed answers along the left-hand
side of the of their exam question sheets that would be easily
visible to a neighbor.” The court also explained, although
disputed by Doe, “Student B stated that the two of them studied
together for the exam, communicated about the exam via text
message, watched recorded course lectures together, and
discussed the recorded lectures together.”
       Referring to the facts it had just listed, both undisputed
and disputed, and purporting to review the SJACS’s decision for
                      11
substantial evidence, the court found, “Based on this evidence
alone, a reasonable trier of fact could have concluded, as did
SJACS, that Petitioner collaborated with, provided answers to,


11
       The court rejected Doe’s contention an independent
judgment standard of review applied in this case because he
purportedly had a vested contractual right and property interest
in attending USC. (See generally Strumsky v. San Diego County
Employees Retirement Assn. (1974) 11 Cal.3d 28, 34 [“[w]hen an
administrative decision affects a right which has been
legitimately acquired or is otherwise ‘vested,’ and when that right
is of a fundamental nature from the standpoint of its economic
aspect or its ‘effect . . . in human terms and the importance . . . to
the individual in the life situation,’ then a full and independent
 judicial review of that decision is indicated because ‘[the]
abrogation of the right is too important to the individual to
relegate it to exclusive administrative extinction’”].) Doe has
abandoned that argument on appeal.



                                 10
and/or received answers from Student B during the examination.”
Nonetheless, the court stated it could not ignore the fact that 22
of the notations in the margins of the two students’ examination
question sheets were not the same. It asked rhetorically, “If
Petitioner was ‘cheating’ either by receiving answers from
Student B or sending answers to Student B, [USC] fails to
explain how the ‘cheating’ was facilitated when 44% of the
answers in the margins were not the same. How do two students
sitting next to each other each score 92% (46/50 identical
answers),[ ] based on letter answers in the margins of each
          12


student’s exam where 44% of them are not the same?” Implicitly
answering its own question, the court then ruled, “The fact that
44% of the letter answers in the margins were not the same
persuades this Court that there was, in fact, no substantial
evidence to support the administrative body’s determination
because putting letter answers in the margins could not have
caused the students to have 46 of 50 identical answers.”
      4. USC’s Appeal, Doe’s Graduation and the Petition for
         Writ of Supersedeas
      USC filed a notice of appeal on April 10, 2017.
      Because of the superior court’s stay of his suspension
during the pendency of the administrative mandamus
proceedings, Doe was able to complete all necessary coursework

12
      The superior court misunderstood USC’s evidence.
Although Doe and Student B answered 46 of 50 questions
identically, only 42 of Doe’s answers (84 percent) and 40 of
Student B’s answers (80 percent) were correct. This
misunderstanding was also reflected in the court’s order that
USC remove Doe’s grade of “F” in the course and “give Petitioner
the letter grade that a score of 46/50 would achieve.”



                               11
and graduated from USC on May 12, 2017 with a Bachelor of
Science degree in Human Biology. However, USC refused to
issue him a transcript pending resolution of its appeal.
      On June 22, 2017 Doe petitioned Division Eight of this
                                     13
court, then assigned USC’s appeal, for a writ of supersedeas
giving full effect to the superior court’s judgment during the
appeal. Relying on section 1094.5, subdivision (g), which
provides, in part, “If an appeal is taken from the granting of the
writ, the order or decision of the agency is stayed pending the
determination of the appeal unless the court to which the appeal
is taken shall otherwise order,” Doe argued withholding his
degree and his transcript, which he needed to apply to medical
school and to seek employment, violated the automatic stay of the
university’s imposition of disciplinary measures. USC opposed
the petition, contending the superior court had ordered it to give
Doe an “A” in Biology 220, affirmative relief that was not subject
to section 1094.5, subdivision (g)’s provision for an automatic
stay.
       On July 28, 2017 Division Eight granted Doe’s petition and
directed USC, pending resolution of the appeal and until further
order, to “(1) reinstate John Doe as a student in good standing,
(2) issue a transcript showing the grade to which he would
otherwise be entitled absent the allegation of cheating, (3) allow
Doe to register for classes, if he would otherwise be entitled
absent the cheating allegation, and (4) issue Doe a diploma, if he
would otherwise be entitled to it absent the cheating allegation.”


13
      USC’s appeal was transferred to Division Seven pursuant
to California Rules of Court, rule 10.1000(b)(1)(A) on January 29,
2018.



                                12
                           DISCUSSION
       1. Standard of Review
       The question presented by a petition for writ of
administrative mandate is whether the agency or tribunal that
issued the decision being challenged “proceeded without, or in
excess of, jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion.” (§ 1094.5,
subd. (b).) “Abuse of discretion is established if the respondent
has not proceeded in the manner required by law, the order or
decision is not supported by the findings, or the findings are not
supported by the evidence.” (Ibid.)
       On appeal from the judgment on a petition for writ of
administrative mandate in a case not involving fundamental
vested rights, as here, we review the agency’s findings, not the
superior court’s decision, for substantial evidence. (Doe v.
University of Southern California (2016) 246 Cal.App.4th 221,
239; see § 1094.5, subd. (c) [“abuse of discretion is established if
the court determines that the findings are not supported by
substantial evidence in the light of the whole record”]; see also
Doe v. Regents of University of California (2016) 5 Cal.App.5th
1055, 1072 [“‘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.’”].)
       We review the fairness of the administrative proceeding de
novo. (Doe v. University of Southern California, supra,
246 Cal.App.4th at p. 239 [“‘[a] challenge to the procedural
fairness of the administrative hearing is reviewed de novo on




                                 13
appeal because the ultimate determination of procedural fairness
amounts to a question of law’”]; accord, Doe v. Regents of
University of California, supra, 5 Cal.App.5th at p. 1073.)
Section 1094.5, subdivision (b)’s requirement of a “fair trial”
“means that there must have been ‘a fair administrative
hearing.’” (Gonzalez v. Santa Clara County Dept. of Social
Services (2014) 223 Cal.App.4th 72, 96.) “Where student
discipline is at issue, the university must comply with its own
policies and procedures.” (Doe v. University of Southern
California, at p. 239; see Berman v. Regents of University of
California (2014) 229 Cal.App.4th 1265, 1271.)
       2. Substantial Evidence Supports USC’s Finding of
          Academic Dishonesty
       As discussed, it is undisputed that Doe and Student B sat
next to each other during the final examination in Biology 220;
had the same version of the examination although adjacent
students were supposed to have different versions; answered
46 of the 50 examination questions identically, a highly
anomalous statistical result; and wrote large letter answers in
the margins of the examination booklets that would be visible to
the students sitting next to them. Although Doe and Student B
insisted they generally wrote answers in the margins of multiple
choice examinations to facilitate checking their answers, the
laboratory manager who participated in reporting the academic
integrity violation stated in the summary of the incident that
neither of the students had written anything next to the multiple
choice questions on the fall semester Biology 120 final




                               14
             14
examination. In addition, Student B, who performed better on
the Biology 220 final than his “C” academic average, while
denying he had cheated, contradicted Doe’s claim that the two of
them had not studied together for the examination.
       We certainly agree with the superior court that these facts
reasonably support the inference Doe provided answers to
Student B and may have also received answers from him during
the examination. Contrary to the superior court’s analysis,
however, closer review of the pattern of answers by Doe and
Student B, viewed in the context of the facts just recited,
reinforces the conclusion that cheating occurred. Doe wrote a
single letter in the margin for 29 questions; Student B marked 28
of his answers to those questions, all but number 10, with the
same letter. On question 10, Doe wrote a “D” in the margin of his
examination booklet; Student B wrote a large “C” in his margin;
both Doe and Student B marked “C” on their Scantron® answer

14
      Copies of the Biology 120 examination booklets were not
attached to the faculty report of academic integrity violation and
not otherwise made part of the administrative record.
       Doe attempted to augment the administrative record in the
superior court with the booklets from two midterm examinations
in Biology 220 to establish the veracity of his statement that he
normally wrote letters in the margins of multiple choice tests.
Although Doe contends to the contrary, the superior court
ultimately sustained USC’s objection to the requested
augmentation. In any event, as the court noted at the January 4,
2017 hearing before finally ruling on USC’s objection, there were
many fewer letters in the margins of those two tests than in Doe’s
final examination booklet and a number of those were smaller
and less distinct than the handwritten letters at issue in this
case.



                                15
sheets. Doe wrote two letters in the margins of five additional
questions (for example “A/B” for question 14); Student B marked
one of those two letters as his answer to four of those questions
(all but number 40, which was one of the four questions as to
which Doe and Student B provided different answers). Of the 16
questions for which Doe did not write any letter in the margins of
the examination booklet, Student B wrote an answer for 14. Doe
marked 12 of his answers to those 14 questions with the letter
Student B placed in the margins of his booklet. Neither student
wrote in the margin of questions 18 and 26. However, on
question18 Student B circled “C” in his booklet; both Doe and
Student B marked “C” on their answer sheets. Both students
marked “D” as their answer to question 26. Significantly, for at
least six questions Doe and Student B marked the same incorrect
        15
answer. Although this pattern of cross-identity of proposed and
actual answers between Doe and Student B might have been the
product of independent work, SJACS’s conclusion it was the
result of cheating is a reasonable inference, solidly grounded in
the record.
      In contrast, the superior court’s observation that Doe’s and
Student B’s marginal notes differed on 44 percent of the
questions—the sole basis for its conclusion SJACS’s decision was
not supported by substantial evidence and a point repeated by
Doe on appeal—is of minimal probative value. In fact, Doe and
Student B wrote different letters in the margins of their

15
      Although the answer key is not part of the administrative
record, their test scores equate to eight incorrect answers for Doe
and 10 incorrect answers for Student B. Because 46 of their 50
answers were identical, Doe and Student B necessarily marked
the same incorrect answers on six or seven questions.



                                16
examination booklets in only two instances, questions 10 and 40
(that is, 4 percent of the time, not 44 percent). As to the other
20 questions included in the court’s calculation, either one
student wrote an answer while the other left the margin blank, or
one student wrote two letters, while the other wrote one of those
same two letters in the examination booklet margins. And they
marked identical answers for all but three of those questions, a
result that does nothing to belie the conclusion they were
improperly sharing information during the examination.
        Neither of Doe’s other challenges to the evidence in the
administrative record undermines the sufficiency of that evidence
to support SJACS’s decision. (See Young v. City of Coronado
(2017) 10 Cal.App.5th 408, 431 [applying deferential substantial
evidence standard of review, court will uphold an administrative
decision if there is substantial evidence to support it whether or
not that evidence is contradicted]; California Oaks Foundation v.
Regents of University of California (2010) 188 Cal.App.4th 227,
247 [“[w]here a petitioner’s challenge in a mandamus action rests
on the sufficiency of the evidence, ‘the court does not have the
power to judge the intrinsic value of the evidence or to weigh
it’”].)
        First, Doe points out that the redacted copy of Doe’s
examination booklet in the administrative record has two
different page 9’s, containing questions 34 through 39: On one
version the page number is visible, and a large “C” is written next
to question 36. In the second version there is no page number; at
the bottom of the page there is the legend, “Figure 3 Example
page from [John Doe’s] exam”; and the margin next to
question 36 is blank. In addition, the redactions on the two
pages, apparently made by a dark marker pen, are slightly




                                17
different; and the handwritten letters in the margins next to
questions 34 and 38 are not identical.
       Doe posits that at least one of these two pages is not an
actual photocopy of his examination booklet, but a “re-creation.”
While not suggesting this necessarily demonstrates improper
action by USC officials, Doe argues the unexplained presence of a
false copy calls into question the authenticity of all the pages of
the examination booklet and, as a consequence, the reliability of
SJACS’s finding that cheating occurred, which was largely based
on inferences from the margin notations in Doe’s and Student B’s
examination booklets and their bubbled answers on the
Scantron® answer sheets.
       The existence of two nonidentical versions of the same page
from Doe’s examination booklet is troubling. Because this issue
was not raised during the administrative proceedings or in the
superior court, however, USC did not have an opportunity to
address it; and it would normally be deemed forfeited. (See, e.g.,
Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 587
[issue not raised in administrative proceedings or in the trial
court deemed forfeited]; Owen v. Sands (2009) 176 Cal.App.4th
                 16
985, 995 [same].) In any event, Doe does not dispute he wrote
large letters in the margin next to most, but not all, of the
questions in his examination booklet. Nor does he contend those
handwritten letters were not visible to Student B, who was
sitting next to him. Moreover, whether Doe wrote a “C” next to
question 36 or left that margin blank has no real significance for

16
       Although USC was responsible for preparing the
administrative record, it was provided directly to Doe’s counsel,
who added several documents before lodging it with the superior
court.



                                18
the statistical analysis at the heart of this case because question
36 was one of the four questions Doe and Student B answered
           17
differently.
       Next, Doe argues certain evidence that would generally be
expected in an academic cheating case was apparently not
considered during the university’s disciplinary proceedings. As
Doe notes, there was no explanation as to how Doe and
Student B, while seated next to each other, ended up with the
same version of the examination. In addition, there was no
testimony from any of the six proctors who were present in the
examination room or from any of the students seated near Doe
and Student B that indicates they were seen copying from each
other or otherwise engaged in suspicious behavior while taking
the test. Those evidentiary gaps, Doe contends, justify the
conclusion the administrative record is insufficient to support
SJACS’s decision to impose sanctions on Doe.
       There is no question that evidence from proctors or fellow
students concerning distribution of the examination booklets or
Doe and Student B’s behavior in the examination room would
have been material, either to support or contradict the allegation
of cheating. But the absence of that information does not detract
from the reasonableness of the inferences by the SJACS review
officer based on the evidence that was presented to him,
including the statistical analysis of Doe’s and Student B’s

17
      Student B wrote “A/C” in the margin next to question 36.
He then bubbled “C” on the Scantron® answer sheet; Doe
bubbled “A.” The comparison sheet in the initial faculty report
has “C?” next to question 36 in the column indicating Doe’s
margin notes. Apparently unaware of the second version of this
page, the superior court wrote Doe had “C” next to question 36.



                                 19
answers, the fact they had the same version of the examination
while sitting next to each other and their use of large letter
proposed answers in the margins of the examination booklets.
      Finally, conceding the evidence may well be sufficient to
conclude that Student B copied the answers Doe had marked in
                                         18
the margins of the examination booklet, Doe contends the
finding he intentionally facilitated Student B’s cheating is purely
speculative. Doe’s protestation of his noninvolvement in the
cheating that took place, however, was belied by his denial that
he and Student B had studied together for the examination,
which Student B refuted. The SJACS review officer was charged
with the responsibility to determine Doe’s credibility and, having
done so, to weigh all the evidence. (See Doe v. Regents of
University of California, supra, 5 Cal.App.5th at p. 1073.) The
determination Doe and Student B collaborated to share answers
during the Biology 220 final examination is “one which could
have been made by reasonable people.” (Ibid. [internal quotation
marks omitted].)
      3. Doe Was Not Deprived of His Right to a Fair Hearing
      Doe urges us to affirm the superior court’s order granting
his petition for writ of administrative mandamus even if the
administrative record supports the finding of academic
dishonesty because the decisionmaking process used in this case
violated USC’s own procedural rules and was fundamentally



18
     In his written submission to the Student Behavior Appeals
Panel, Doe acknowledged he had “made the mistake of letting my
guard down in not protecting my exam and scantron as well as I
normally would.”



                                20
      19
unfair. (See Doe v. University of Southern California, supra,
246 Cal.App.4th at pp. 245-246 [student disciplinary process
should at least provide the student the names of the witnesses
against him, an oral or written description of the facts as
reported by those witnesses and an opportunity to respond and
characterize his or her conduct and put it in its proper context];
see also Doe v. Regents of University of California, supra,
5 Cal.App.5th at p. 1077 [fair procedure generally requires notice
reasonably calculated to apprise interested parties of the nature
of the charges and an opportunity to respond to them]; see

19
       USC anticipated Doe’s argument concerning procedural
unfairness and asserted in the final section of its opening brief
that Doe could not establish he had been denied a fair hearing.
In its reply brief, however, USC contends, because Doe did not
file a cross-appeal from the superior court’s judgment, that issue
is not properly before us. USC’s belated forfeiture argument
overlooks section 906, which expressly authorizes a respondent,
without appealing from the judgment, to assert grounds rejected
by the trial court that compel affirmance of the judgment in its
favor. (§ 906 [“respondent, or party in whose favor the judgment
was given, may, without appealing from such judgment, request
the reviewing court to and it may review any [order or decision
that involves the merits or necessarily affects the judgment] for
the purpose of determining whether or not appellant was
prejudiced by the error or errors upon which he relies for reversal
or modification of the judgment from which the appeal is taken”];
see Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48, 57
[respondent permitted by section 906 to raise argument without
cross-appeal that trial court reached right result “even if on the
wrong theory”]; California State Employees’ Assn. v. State
Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7
[section 906 “allow[s] a respondent to assert a legal theory which
may result in affirmance of the judgment”].)



                                21
generally Goss v. Lopez (1975) 419 U.S. 565, 579-580 [95 S.Ct.
729, 42 L.Ed.2d 725] [“[a]t the very minimum, therefore, students
facing suspension . . . must be given some kind of notice and
afforded some kind of hearing”].) Specifically, Doe argues USC
failed to timely provide him with his and Student B’s
examination booklets with lettering in the margins, the key
evidence used against him, and chilled his right to gather from
witnesses information relevant to the cheating charge. Neither of
Doe’s contention has merit.
       Shortly after the academic integrity review process began,
Doe was provided a copy of the faculty report sent to SJACS that
triggered the formal proceedings. The report emphasized the
statistically improbable correlation between Doe’s and
Student B’s answers, discussed the fact they had the same
version of the examination while seated next to each other and
analyzed the relationship between the proposed answers written
in the margins of their examination booklets and the Scantron®
answer sheets—that is, the report explained the basis for the
charge of cheating, the evidence supporting the charge, and the
identity of the professors who had initiated the complaint. Doe
was given a summary of the review process that would be
followed, referred to the portion of the student handbook that
detailed the entire process and told he had a right to inspect, but
not copy, the examination papers. Doe exercised his right to
review the examination papers. This procedure complied with
                                           20
USC’s rules governing the review process and satisfied the

20
      Section 10.30 of USC’s Student Conduct Code, Student
Procedural Protections, provides, among other safeguards for a
fair hearing, the right to “[w]ritten notice via email of the
incident report that specifies the nature of the alleged violation


                                 22
rudimentary requirements for a fair hearing. (See Doe v.
University of Southern California, supra, 246 Cal.App.4th at
p. 240 [student facing suspension must be given, at a minimum,
an opportunity to explain his or her version of the facts after first
being informed of the accusation of misconduct and the basis for
it].)
      In addition, although Doe complains he was not allowed to
inspect both sets of examination papers until late in the review
process (two months after the complaint was initiated and only a
few days before the SJACS review officer issued his decision), he
was invited to schedule an appointment to review those
documents more than a month earlier, on July 1, 2015, the same
                                      21
day he met with the review officer. Moreover, Doe does not
indicate how his delay in reviewing the examination papers
prejudiced his case. To the contrary, Doe never argued that the
analysis of the relationship between the handwritten letters in
the margins of the examination booklets and the Scantron®
answer sheets was flawed or disputed that this evidence
convincingly demonstrated Student B had cheated. Rather, he


and the basis for the charge including the date or period of time
and location regarding the alleged incident”;“[t]he right to inspect
documents and/or relevant information on file prior to the
review”; “[t]he opportunity to be present at the review; to inspect
all evidence presented; and to present witnesses and evidence”;
and the right to “[a] fair and impartial review of the incident”
with “a written decision outlining the results of the review . . .
includ[ing] the factual basis for the conclusions drawn.”
21
      The invitation to schedule an appointment to inspect the
examination papers was repeated in an email sent to Doe on
July 15, 2015.



                                 23
challenges only the additional finding that he cooperated with
Student B in the cheating scheme, an inference based primarily
on evidence relating to his credibility, not the information
gleaned from the examination booklets and answer sheets. (Cf.
Doe v. Regents of University of California, supra, 5 Cal.App.5th at
pp. 1085-1093 [court analyzes whether restrictions on cross-
examination of sexual assault victim “rendered the hearing
unfair by prejudicing” the alleged perpetrator].)
      Doe’s second complaint of procedural unfairness—that USC
severely compromised his ability to gather evidence to defend
against the charge of cheating—is based on the review officer’s
admonition when sending Doe a copy of the faculty report not to
engage in inappropriate contact with the reporting individuals or
                 22
other witnesses. Although Doe contends this warning deterred
him from interviewing Student B, the examination proctors and
other students sitting near him during the examination,
cautioning Doe to refrain from improper tactics when speaking to
potential witnesses did not preclude him from reaching out to any

22
       The review officer’s email stated, “Per your request, I have
attached a copy of the [faculty] report for your review. Please
note that documents may include names of reporting individuals
and witnesses. Receipt of this email and included documents
means that you understand that inappropriate contact with these
individuals may be deemed as intimidation or retaliation, a
violation of the Student Conduct Code (11.55).” Section 11.55 of
the USC Student Conduct Code, which had been made available
to Doe, prohibits, in part, “[t]hreatening, attempting, or
committing retaliation against anyone who, in good faith, brings
a complaint under the Student Handbook policy, university
policy, or applicable law; or participates in investigation of such a
complaint . . . .”



                                 24
of those individuals or to have one of his parents, who assisted
him during this process, or a lawyer do so. The decision to
refrain from appropriate contact with potential witnesses was
            23
Doe’s alone.
       In addition, as USC points out, this argument was not
presented during Doe’s administrative appeal and was only
identified in passing in the superior court, as part of Doe’s
contention that USC had improperly imposed on him the burden
to prove his innocence—a claim of procedural unfairness that has
not been raised on appeal. Accordingly, independent of its lack of
merit, the issue whether the review officer’s warning improperly
chilled Doe’s ability to contact potential witnesses has been
forfeited. (See NBS Imaging Systems, Inc. v. State Bd. of Control
(1997) 60 Cal.App.4th 328, 336-337 [review of administrative
proceedings is confined to the administrative record]; Coalition
for Student Action v. City of Fullerton (1984) 153 Cal.App.3d
1194, 1197 [failure to raise a defense before the administrative
body waives the defense]; City of Walnut Creek v. County of
Contra Costa (1980) 101 Cal.App.3d 1012, 1019-1020 [a party
must present all legitimate issues before the administrative
tribunal].)




23
      The review officer’s notes indicate Doe had communicated
with Student B prior to the July 1, 2015 meeting between Doe
and the review officer. In a telephone call following the July 1
meeting, the review officer advised Doe against any further
contact with Student B in response to Doe’s suggestion he could
prove his innocence by obtaining a confession from Student B.



                                25
      4. The Consequences of Our Reversal of the Superior
         Court’s Judgment Are Appropriately Determined by USC
         in the First Instance
       Because Doe graduated and received his degree while
USC’s appeal was pending, we invited the parties to submit
supplemental letter briefs addressing whether his graduation
mooted the appeal and, if not, what effect it might have on
possible academic sanctions that would be available to USC if we
were to reverse the superior court’s judgment granting the
petition for writ of administrative mandamus.
       USC responded that Doe’s graduation does not moot the
case, in whole or in part. Upon reversal, USC asserted, Doe’s
grade in Biology 220 will be changed to an “F”; his diploma will
be invalidated because passing Biology 220 is a requirement for
Doe’s major; and the two-semester suspension will be imposed,
preventing Doe from enrolling in courses at USC during that
       24
period. USC emphasized that in his reply brief in support of his
petition for writ of supersedeas, Doe had argued, “Granting this
petition would not in any way deprive USC of appellate remedies
to which it could be entitled were it to prevail. . . . USC would—if
successful on appeal—be able to rescind or modify whatever
academic recognition it confers . . . .”



24
      While insisting Doe must retake and earn a passing grade
in Biology 220 if the judgment granting the writ of
administrative mandamus is reversed, USC’s supplemental brief
confirms, “Doe may retain credits he earned since the
administrative proceeding during which the suspension was
stayed by order of the trial court and this Court’s writ of
supersedeas.”



                                26
       In his supplemental brief Doe acknowledged that passing
Biology 220 was required for his degree in Human Biology and
that, in general, USC has the power to revoke a degree.
Nonetheless, Doe contends the appeal is now moot, arguing that,
following the filing of its notice of appeal and before the May 12,
2017 graduation ceremony, USC could have asked this court for
discretionary relief under section 1094.5, subdivision (g), to keep
the disciplinary measures in place while the appeal was pending.
USC’s failure to do so, Doe insists, “was surely a waiver.”
Moreover, Doe argues, revoking the degree USC conferred in May
2017 would impose an increased and harsher sanction than
initially ordered by the university, in effect an impermissible
punishment for having challenged the university’s disciplinary
process in court.
       Determining the ultimate effect of our reversal of the
superior court’s judgment, including whether Doe’s degree should
be rescinded or the two-semester suspension imposed nearly
three years after it was ordered, are matters properly entrusted
to USC in the first instance. (See generally Paulsen v. Golden
Gate University (1979) 25 Cal.3d 803, 808 [courts will not
intervene in the academic affairs of schools unless the school
acted arbitrarily or in bad faith]; Lachtman v. Regents of
University of California (2007) 158 Cal.App.4th 187, 203
[“‘“[u]niversity faculties must have the widest range of discretion
in making judgments as to the academic performance of students
and their entitlement to promotion or graduation”’”].)
Accordingly, although we raised the issue with our invitation for
supplemental briefing, we decline to resolve it at this time.




                                27
                            DISPOSITION
      The judgment is reversed and the cause remanded with
directions to deny John Doe’s petition for writ of administrative
mandamus. USC is to recover its costs on appeal.




                                          PERLUSS, P. J.



      We concur:




            ZELON, J.




                        *
            WILEY, J.




*
      Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



                                28
Filed 10/9/18 Order modifying & publishing & denying rehearing
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                             DIVISION SEVEN

JOHN DOE,                                        B281961

       Plaintiff and Respondent,                 (Los Angeles County
                                                 Super. Ct. No. BS159753)
       v.
                                                ORDER MODIFYING
UNIVERSITY OF SOUTHERN                          OPINION AND
CALIFORNIA, et al.,                             DENYING REHEARING,
                                                CERTIFYING OPINION
       Defendants and Appellants.               FOR PUBLICATION
                                                (NO CHANGE IN
                                                JUDGMENT)

      THE COURT:
      It is ordered that the opinion filed herein on September 19,
2018 be modified as follows:
      1. At the top of page 25, after the sentence ending “who
assisted him during this process, or a lawyer do so.” add as
footnote 23 the following footnote, which will require
renumbering of all subsequent footnotes:

       23 Doe v. Claremont McKenna College (2018)
       25 Cal.App.5th 1055, decided by our colleagues in
       Division One of this court shortly before oral argument in
       this case, does not suggest, as Doe has argued, that USC’s
       academic integrity review process was fundamentally
       unfair because Doe was not permitted to question
       Student B before the SJACS review officer. Rather, in the
       context of a sexual misconduct case where the school’s
       determination turned on the complaining witness’s
      credibility, the court held, “the accused student is entitled
      to ‘a process by which the respondent may question, if even
      indirectly, the complainant.’” (Id. at p. 1070.) Student B
      was not the complaining witness, but Doe’s coconspirator in
      the cheating scheme.

      2. There is no change in the judgment.
      3. John Doe’s petition for rehearing is denied.
      The opinion in the above-entitled matter filed on
September 19, 2018 was not certified for publication in the
Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.

____________________________________________________________
                                                       *
  PERLUSS, P. J.           ZELON, J.         WILEY, J.




*
      Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
                                2
