Filed 9/16/15 Dorfman v. University of California, San Diego CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



JONATHAN DORFMAN,                                                   D065865

         Plaintiff and Appellant,
                                                                    (Super. Ct. No. 37-2012-00101760-
         v.                                                         CU-WM-CTL)

UNIVERSITY OF CALIFORNIA, SAN
DIEGO et al.,

         Defendants and Respondents.


         APPEAL from an order of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Reversed.



         Robert P. Ottilie for Plaintiff and Appellant.

         Charles F. Robinson, Karen J. Petrulakis, Margaret L. Wu and Michael R.

Goldstein for Defendants and Respondents.

         Jonathan Dorfman, an undergraduate student at the University of California, San

Diego (UCSD), was dismissed from the university after he was found to have violated its
Policy on Integrity of Scholarship1 for the second time. Dorfman sought relief in the

superior court and appeals that court's order denying Dorfman's petition for writ of

administrative mandate to compel UCSD to overturn its dismissal. We conclude UCSD

did not provide Dorfman with a fair proceeding and, accordingly, reverse.

                   FACTUAL AND PROCEDURAL BACKGROUND

                                             A

             Alleged Violation of UCSD's Policy on Integrity of Scholarship

       On July 1, 2011, Dorfman was notified by the dean of his college that his CHEM

6B instructor, John Crowell, alleged Dorfman cheated on a midterm exam during the

prior term. The exam in question was given on May 25, 2011, over a month before

Dorfman was notified of Crowell's accusation. Crowell distributed four versions of the

exam, A, B, C, and D. Each of the 618 students who took the exam received one of the

four exam versions and a Scantron test form premarked with the corresponding version

letter in pencil on the front and in permanent ink on the back. Crowell suspected

Dorfman of cheating because after the term had ended he discovered the front of the test

form Dorfman submitted was altered from version D to version A.

       The exam was administered in four different classrooms. Crowell provided

written instructions to the proctors in each classroom that stated the proctors should print

"a condensed version of the [instructions] on the blackboard." (Italics added.) The

instructions included a direction to check the exam version against the test form version

1     The Policy on Integrity of Scholarship is also referred to in this opinion as the
academic integrity policy.
                                           2
and inform a proctor if the version letters did not agree. The instructions also stated in

bold capital letters "DO NOT ALTER YOUR SCANTRON." Crowell stated his practice

was to visit each exam room at the beginning of the test and personally instruct students

to notify someone if there was a discrepancy between the exam booklet and Scantron

version letters.

       Dorfman admitted that the exam and test form he received were mismatched, that

he did not notify anyone of the discrepancy, and that he erased the D marking and

marked A. He did not recall being told to notify anyone if the exam and test form

versions did not agree. Dorfman claimed that if the instruction was provided orally, he

did not hear it because when he arrived at his assigned classroom, the room was full and

he was directed to another classroom causing him to arrive late. Dorfman also did not

recall seeing instructions on the blackboard. No other student or proctor in the classroom

where Dorfman took the test reported observing Dorfman copying from another student

during the exam.

       After the semester ended, Crowell discovered Dorfman and four other students

had altered the version letters on the test form. As a result, on June 29, 2011, Crowell

submitted an instructor report form to the university's Academic Integrity Coordinator,

Tricia Bertram Gallant, Ph.D., alleging Dorfman violated the university's academic

integrity policy by altering the premarked test form. Because Crowell did not collect the

exam booklet and permitted students to take them home for study purposes, he did not

have direct proof that Dorfman was not given a D exam. Dorfman also did not have the


                                              3
booklet, which he kept to study for the final exam then threw away when he moved out of

his apartment after the term ended.

       UCSD's "Instructor's Guide for Preventing and Processing Incidents of Academic

Dishonesty" outlines responsibilities of instructors and students with respect to the

school's academic integrity policy and provides guidance to instructors to prevent

academic misconduct. The guide states students are expected to notify instructors or

other appropriate administrative officers "about any incident of dishonesty they observe."

Instructors are told "[t]he responsibility for enforcing academic honesty rests with" them

and that they should take "every precaution to minimize opportunities for academic

misconduct." The "Tips for Preventing Incidents of Academic Misconduct" section of

the guide suggests precautions that instructors should take to minimize academic

dishonesty during examinations. These tips include asking "students to write their names

in ink on all pages of the exam," asking students "to write on their exam their row

number and the names of students seated to their left and right," and to "[i]mmediately

collect all exam papers . . . ." (Italics added.)

       The guide also tells instructors it is their responsibility to "[p]romptly confront any

student(s) suspected of academic dishonesty in a manner that respects the student's

privacy and the right to due process" and that this confrontation "will usually involve

meeting with the student to discuss the charges, the evidence, and proposed academic

consequences." Similarly, the guide suggests that "[i]n cases in which the evidence can

be clearly documented, e.g. plagiarism [and] identical answers submitted by two


                                               4
students" the instructor should "[m]eet with the student [who is accused of academic

misconduct] to discuss the charges, the evidence, and possible academic consequences."

                                             B

                                Initial University Proceeding

       After Dorfman received notice of Crowell's allegation he was informed that,

because he was under academic probation for a prior incident of academic misconduct, he

faced possible dismissal from UCSD. When he was notified of the allegation Dorfman

denied any wrongdoing and submitted a request for all documentation supporting

Crowell's allegation. On July 25, 2011, Dorfman requested a hearing before an

Academic Integrity Review Board (AIRB) under the academic integrity policy to dispute

the charge.

       In response to Dorfman's initial request for documentation, UCSD provided him a

copy of his altered test form and a statement that Dorfman was "suspected to have

changed Exam [two] from D to A. The evidence is that your [S]cantron was altered

based on the discrepancy from the front [versus] back of the [S]cantron and the erasure

marks." Dorfman asked if any additional evidence existed and was told he had received

all of the existing documentation related to the allegation against him. The university

also informed Dorfman he would receive a briefing packet at least five days before the

hearing and that under the school's policy, new material could be added at the hearing at

the discretion of the presiding officer.




                                             5
       Dorfman then retained an attorney, Robert P. Ottilie, to assist with his preparation

for the hearing.2 Ottilie requested additional information about the alleged cheating,

including a seating chart and the test forms of students who sat near Dorfman at the

exam. After several additional unsuccessful requests for information about the charges,

and just five days before the scheduled hearing, Ottilie was provided with Crowell's

report for the AIRB hearing. The report indicated for the first time that Dorfman was

accused of copying another student's answers. Crowell stated he had compared

Dorfman's answers to those of the other students in the class and found that Dorfman's

answers on 24 of the 26 exam questions (eight wrong and 16 correct) were the same as

those of another student, referred to as Student X. Student X's test form was marked with

version A and he or she took the exam in the same room as Dorfman. Crowell's report

also asserted that Crowell had consulted with a professor from another university with

experience in statistical analysis. That professor concluded that the chances of Dorfman

and Student X having eight wrong matching answers by coincidence was a billion to one.

       Once Dorfman and Ottilie received Crowell's report, Ottilie immediately and

repeatedly asked Gallant to reveal the identity of Student X and to provide the test form

data Crowell and the consulting professor used to arrive at their conclusion that Dorfman

copied from Student X. Gallant denied Ottilie's requests for the identity of Student X,

taking the position that because Student X was not aware of the allegation against


2      The university did not permit Ottilie to represent Dorfman at the hearing. Under
the academic integrity policy a student accused of academic dishonesty may be
represented only by a student advocate.
                                              6
Dorfman he or she was not a relevant party to the proceeding. Dorfman was provided

with the test form data used by the consulting professor, but only two days before the

hearing. After the hearing, which was conducted in October 2011, the AIRB issued its

decision finding Dorfman violated UCSD's Policy on Integrity of Scholarship. Shortly

after, Dorfman was notified that the Council of Deans, the body responsible for imposing

sanctions under the academic integrity policy, had imposed the sanction of dismissal

from UCSD.

       Dorfman appealed the AIRB's decision and dismissal to UCSD's Council of

Provosts. He contended that altering the version letter on the test form was not a

violation of the university's policy and that there was insufficient evidence to support the

AIRB's finding he had copied from Student X. Dorfman also argued his due process

rights were violated in various ways, including Crowell's failure to raise the cheating

allegation before the end of the semester and the university's refusal to identify Student

X. Dorfman also asserted that Gallant inappropriately assisted Crowell in obtaining

testimony from the consulting professor who had opined on the statistical significance of

Dorfman's and Student X's matching answers.

       The Council of Provosts concluded Gallant had improperly solicited the opinion of

an outside expert and provided him with test form data, in effect assisting Crowell with

his case against Dorfman without being authorized to do so by the Policy on Integrity of

Scholarship. The Council also disapproved of the university's failure to provide Dorfman

with the statistical data used by the expert until just two days before the hearing,


                                              7
concluding that as a result Dorfman was precluded from retaining his own expert or

conducting his own statistical analysis. The Council of Provosts suspended the sanction

of dismissal pending the outcome of a new AIRB hearing.

                                             C

                              Second University Proceeding

       After the Council of Provosts issued its decision, Ottilie sent a letter to UCSD

again seeking the identity of Student X. In the alternative, Ottilie sought the exclusion of

Student X's test form from the hearing. Ottilie then submitted a letter to UCSD 's Office

of Student Conduct seeking rulings on three formal motions: a motion in limine to

exclude any reference to Student X or his or her test form; a motion seeking the recusal

of the new presiding officer, Dean Patty Mahaffey; and a motion to exclude any reference

to other students claimed by Crowell to have cheated by altering the version of the test

form they submitted.

       Dorfman's motion with respect to Mahaffey asserted that, as part of the Council of

Deans responsible for determining sanctions for violations of the academic integrity

policy, she had prejudged Dorfman by deciding before the first AIRB hearing that

dismissal was an appropriate sanction for Dorfman's alleged misconduct. The Office of

Student Conduct denied Dorfman's request that Mahaffey recuse herself. It explained

Mahaffey's consultation with the other deans was routine in academic misconduct cases

because the university's policy "imposes an affirmative obligation on the Dean of the




                                             8
accused [s]tudent's [c]ollege" to advise the charged student of the sanction he or she faces

before an AIRB hearing.

       After UCSD denied Dorfman's motion concerning Mahaffey, Mahaffey sent a

letter to Dorfman and Ottilie with her rulings on Dorfman's other motions. With respect

to Student X, she stated she would obtain the identity of the student from Crowell and

contact the student to "judge his/her interest and willingness to either participate in th[e]

review or submit a written statement." Mahaffey granted Dorfman's motion with respect

to other students Crowell alleged had cheated by changing the exam version on their test

forms, agreeing this information was irrelevant and excluding any reference to it from the

hearing.

       In response to Mahaffey's rulings, Ottilie sent a letter to Mahaffey objecting to her

contacting Student X. Ottilie stated the proposal was not authorized by the academic

integrity policy and noted the Council of Provosts' reversal of the dismissal after the first

hearing was based in part on Gallant improperly contacting a witness on behalf of UCSD.

Ottilie stated his concern that Mahaffey's contact would result in the university receiving

information that Dorfman would not have access to and that Mahaffey might influence

Student X's decision whether to participate in the hearing. Rather than contact Student X,

Ottilie requested Mahaffey "make an evidentiary ruling and exclude reference to the

Student X [S]cantron evidence . . . ."

       In response to Ottilie's objection, Mahaffey stated she would not contact the

student, but ruled the test form could still be included in the hearing and Dorfman could


                                              9
raise the issue again at the hearing. Ottilie sent another letter to Mahaffey clarifying that

Dorfman objected to Mahaffey contacting Student X because it was not authorized by

UCSD's policies and that he wanted Mahaffey to make a ruling on that objection. Ottilie

then stated that if Mahaffey ruled the objection was well taken, Mahaffey should then

also rule on the underlying motion to exclude the Scantron test form from the hearing.

Mahaffey responded by repeating her earlier decision to allow the test form and, "per

[Ottilie's] request," not "attempt to contact [Student X] to gather additional information."

       The second review hearing took place on April 27, 2012. Dorfman and Crowell

presented their cases to the panel who asked questions throughout. Without relying on

the statistical analysis prepared by the other professor, Crowell advanced the same basic

case he presented at the first hearing. He argued the chances of Dorfman's answers

matching those of Student X were extraordinarily small and could not have been by

coincidence. He offered no evidence concerning where Dorfman was seated in

relationship to Student X. In his presentation Dorfman refuted the charge that he copied

from another student. In response to Crowell's assertion that the two exams could not

have matched by coincidence, Dorfman said that he found over 40 other instances of

pairs of Scantrons with 23, 24 or 25 matching answers and that half of these pairs

involved students who were sitting in different classrooms.

       On May 2, 2012, the AIRB issued its decision finding Dorfman had changed his

test form from version D to version A, that 24 of 26 answers on Dorfman's test form

matched only one other exam, and that the matching exam was version A and was taken


                                             10
by a student in the same exam room as Dorfman. The panel also found Dorfman had

failed to adequately explain the identical sequences of answers. The panel concluded it

was more likely than not that Dorfman violated the academic integrity policy and found

him responsible for exam misconduct. The following day Dorfman was notified that the

Council of Deans had again imposed dismissal from UCSD as the sanction for the

misconduct.

       Dorfman appealed to the Council of Provosts, asserting his due process rights

were violated by the university's refusal to identify Student X, Crowell's delay in

asserting an allegation against Dorfman, and Mahaffey's role as the hearing officer.

Dorfman also asserted insufficient evidence supported the panel's findings. The appeal

was rejected on June 6, 2012.

                                             D

                                Superior Court Proceedings

       On August 12, 2012, Dorfman filed a petition for writ of mandate in the superior

court against UCSD and the Regents of the University of California. Dorfman again

asserted his procedural due process rights had been violated and insufficient evidence

supported the AIRB's findings. The Regents answered, denying each claim. After full

briefing and a hearing, on February 10, 2014, the court issued a writ of mandate

concluding the AIRB's evidentiary findings did not support the ultimate finding that

Dorfman had cheated on the exam. The court found the university had failed to provide

any evidence to show the matching exams were more than a statistical anomaly. The


                                            11
court rejected Dorfman's contention that he had not been afforded a fair process. The

trial court's order set aside the AIRB's decision and ordered a rehearing at the option of

the Regents.

       Thereafter, the Regents moved for reconsideration or, in the alternative, a new trial

under Code of Civil Procedure, section 657.3 Dorfman also sought reconsideration and

modification of the order to preclude a rehearing by UCSD. After further briefing and

another hearing, the trial court granted the Regent's motion for reconsideration and

reversed its prior ruling setting aside the AIRB's decision. The trial court's new order

concluded sufficient evidence supported the AIRB's finding and again rejected Dorfman's

claims of procedural unfairness.

                                       DISCUSSION

       In this appeal, Dorfman again asserts the university violated his right to a fair

disciplinary proceeding by excluding Student X as a witness and by allowing Mahaffey

to serve as the presiding officer. He also argues Crowell's evidence was insufficient to

support the AIRB's findings. Additionally, Dorfman contends the trial court erred by

considering documentation that was not part of the administrative record and by granting

the Regent's motion for reconsideration. We agree with Dorfman that the university's

refusal to provide him with the identity of Student X violated the Regents' and UCSD's

own policies mandating certain minimum procedural protections in disciplinary



3      All further statutory references are to the Code of Civil Procedure.


                                             12
proceedings. Without this information, Dorfman could not adequately defend himself

against the charge of copying. Because we conclude reversal of the AIRB's decision and

the university's dismissal is warranted on this basis alone, we do not reach Dorfman's

other contentions on appeal. (See In re Marriage of Carlsson (2008) 163 Cal.App.4th

281, 291 [" 'Denying a party the right to testify or to offer evidence is reversible per

se.' "].)

                                              I

        Section 1094.5, subdivision (b) governs our review of an administrative

proceeding. Under this statute, mandamus is required where a party is deprived of a fair

trial or the proceedings are not conducted "in the manner required by law." (§ 1094.5,

subd. (b).) "The ultimate determination whether an administrative proceeding was

fundamentally fair is a question of law to be decided on appeal."

(Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003)

108 Cal.App.4th 533, 542 (Southern Cal. Underground Contractors).) "Thus, we

independently evaluate [Dorfman's] claims that [he] was denied a fair hearing." (Ibid.)

        The university is bound by its own policies and procedures. (Berman v. Regents of

University of California, (2014) 229 Cal.App.4th 1265, 1271-1272 (Berman).)

Additionally, UCSD's "rule-making powers and its relationship with its students are

subject to constitutional guarantees." (Goldberg v. Regents of University of Cal. (1967)

248 Cal. App. 2d 867, 875.) A disciplinary proceeding at a university does not provide

the same due process protections afforded to a defendant in a criminal trial. (Id. at


                                              13
p. 881.) However, "to comport with due process," the university's procedures must " ' be

tailored, in light of the decision to be made, to "the capacities and circumstances of those

who are to be heard," [citation] . . . to insure that they are given a meaningful opportunity

to present their case.' " (Southern Cal. Underground Contractors, supra,

108 Cal.App.4th at p. 545.)

       "[A] court's determination of whether an agency's hearing procedures are in

compliance with relevant statutes and regulations, and with an agency's own policies,

requires application of the rules of statutory interpretation and construction." (Do v.

Regents of University of California (2013) 216 Cal.App.4th 1474, 1488.) Deference is

accorded to the university's interpretation of its own policies and procedures because of

its expertise in the subject. (Berman, supra, 229 Cal.App.4th at p. 1272.)

                                             II

       The Regents' "Policy on Student Conduct and Discipline" requires its universities

to implement certain minimum procedural standards to assure fair hearings in situations

where a formal hearing is deemed appropriate to resolve alleged misconduct. These

minimum requirements specifically include "[t]he opportunity for a prompt and fair

hearing where the University shall bear the burden of proof, and at which the student

shall have the opportunity to present documents and witnesses and to confront and cross-

examine witnesses presented by the University . . . ." UCSD's academic integrity policy,

in turn, provides "the general rules and procedures associated with student integrity of




                                             14
scholarship" and implements the Regents' policy mandating minimum procedural

safeguards in disciplinary proceedings.

       Under UCSD's policy, a student may contest an alleged violation of the academic

integrity policy by submitting "a written request for an Academic Integrity Review to the

appropriate" dean within 12 days of receiving notification of the allegation. An academic

integrity coordinator (AIC) then schedules the review "to explore and investigate the

incident giving rise to the charge and to reach an informed, evidence-based conclusion as

to whether the [academic integrity p]olicy was violated." (Emphasis added.) Once the

student has requested a hearing, section seven of the policy states that "the relevant

documents will be collected, including the facts of the charge by the Instructor and the

Student's dispute of the facts of the charge." Section seven also permits the student and

instructor to submit "additional documents relevant to the charge, or the names and

contact information of any additional people (e.g., classmates, teaching assistants) who

have knowledge relevant to the charge (Relevant Parties)." Section eight of UCSD's

policy gives the instructor and student "the right to present [r]elevant [p]arties and

question all [r]elevant [p]arties present" at the hearing. The provision defines a

"[r]elevant [p]arty" as "one with direct and material understanding of the allegation."

                                             III

       Crowell's allegation was based solely on (1) Dorfman's alteration of the version

letter on his Scantron, which UCSD concedes was insufficient to support the charge, and

(2) Dorfman's answers matching those of Student X. No eye witness evidence showed


                                             15
Dorfman copied from another student. Dorfman may have been able to exonerate

himself completely by showing Student X was not seated near him. Where Student X sat

during the exam was, therefore, "knowledge relevant to the charge" under section seven

of UCSD's academic integrity policy.

       Further, because Crowell did not create a seating chart for the exam or institute

any of the other safeguards specifically suggested by UCSD to prevent this type of

cheating—for example collecting the exam booklets from the students after the exam or

asking students to write their row numbers and names of neighboring students on their

exams—the only avenue available to Dorfman to obtain this information was through

Student X. Crowell's unexplained delay in reviewing the exam materials until after the

term was over and Dorfman had discarded the exam booklet, also contrary to UCSD's

suggested practices, further contributed to Dorfman's inability to defend against the

allegation without Student X's identity. In these circumstances, UCSD's refusal to

provide Student X's identity violated the minimum procedural requirements afforded by

the Regents and UCSD set forth above. Without this information, Dorfman was deprived

of a meaningful "opportunity to present documents and witnesses and to confront and

cross-examine witnesses presented by the University" as required by UCSD's own policy.

       UCSD's assertion that Student X's identity was not relevant because it could prove

its case based on the low probability that Dorfman and Student X had 24 of 26 matched

answers by chance is not well taken. Regardless of how high the odds of the answers




                                            16
matching by coincidence were, the chance existed.4 Since there was no allegation or

showing by UCSD that Dorfman and Student X were cooperating, evidence that Student

X was not seated where Dorfman could see his or her exam could establish the matching

answers were that rare coincidence. Without any ability to determine where Student X

sat, Dorfman's defense was unfairly crippled. (See Andersen v. Regents of University of

California (1972) 22 Cal.App.3d 763, 771 [student facing expulsion from college is

" 'entitled to a "fair hearing," ' " which includes an "opportunity to present his defenses."]

and Fremont Indemnity Co. v. Workers' Comp. Appeals Bd. (1984) 153 Cal.App.3d 965,

971 [" 'All parties must be fully apprised of the evidence submitted or to be considered,

and must be given opportunity to cross-examine witnesses, to inspect documents and to

offer evidence in explanation or rebuttal. In no other way can a party maintain its rights

or make its defense.' "].)

       UCSD argues that the definition of relevant parties ("one with direct and material

understanding of the allegation") contained in section eight of its Policy on Integrity of

Scholarship supports its decision to keep Student X's identity secret. Although deference

is afforded to the university's interpretation of its own policies, we do not agree with

UCSD's narrow reading of this provision. As an initial matter, the definition does not

purport to limit the student's ability to investigate the allegations against him. The

provision, titled "Parties Attending the A[cademic] I[ntegrity] R[eview]," on its face

4     At oral argument, Ottilie suggested there was also no reason for Crowell to have
assumed that Dorfman, and not Student X, was the cheater. Dorfman's admitted
modification of the Scantron version letter, however, was a reasonable basis for Crowell's
conclusion that Dorfman and not Student X was the culprit.
                                             17
addresses who may attend the hearing and not what information the university or

accusing instructor must provide to the student.

       Further, section seven (titled "The Review Packet") explains the process of

preparing the compilation of documentation about the charges to be used at a hearing.

This provision suggests a broader scope of relevant evidence. Section seven states that in

addition to the documentation used by the instructor to initiate the charges, the student or

instructor may submit "additional documents relevant to the charge, or the names and

contact information of any additional people (e.g., classmates, teaching assistants) who

have knowledge relevant to the charge (Relevant Parties)." The discovery of the location

of where Student X sat during the exam, or in this case the identity of Student X to seek

that information, falls within the evidence contemplated by this provision. This

information was highly relevant to the allegation against Dorfman regardless of whether

Student X could be excluded from attending the hearing under section eight.5 Indeed, at

oral argument UCSD's counsel conceded that where Student X sat during the exam was

potentially "dispositive."

5       UCSD also argues "there were sound reasons for leaving X out of this, given the
strength of the incriminating evidence" against Dorfman. It quotes Jaska v. Regents of
University of Michigan (E.D.Mich. 1984) 597 F. Supp. 1245 to state that " 'the need for
anonymity of student accusers, who might otherwise be the victim of reprisals from
fellow students, could prevail over the right to confrontation.' " (Id. at p. 1253.) Student
X did not accuse Dorfman of cheating. The accusation stemmed solely from Crowell's
review of the Scantrons after the semester ended. While there may be sound reasons to
protect the identity of students in various circumstances, there was no reason in this case
to believe Dorfman or anyone else would threaten Student X. (See John A. v. San
Bernardino City Unified School District (1982) 33 Cal.3d 301, 308 [school board could
not rely on written statements of witnesses where "there is no showing or finding of a
significant and specific risk of harm."].)
                                              18
       Finally, UCSD contends that even if Dorfman had the right to learn Student X's

identity, he waived that right by objecting to Mahaffey's offer to contact the student to

gauge his or her willingness to participate. As stated, Crowell's case against Dorfman

was based solely on the facts that (1) Dorfman altered the exam version letter on the

Scantron and (2) his answers matched Student X's answers. Where Student X sat was

vital to Dorfman's ability to defend himself against the charges. Ottilie did object to

Mahaffey contacting Student X, but his concern over Mahaffey influencing the student

(consciously or otherwise) was reasonable after the prior Academic Integrity Coordinator

was found to have improperly solicited testimony and evidence on behalf of Crowell for

the first hearing.

       Further, Ottilie clarified the basis for his objection was that it was an ex parte

communication that was not authorized, but that if the Scantron was admitted and

Mahaffey ruled her contact was proper under the academic integrity policy, she should

make contact. There was nothing improper in Ottilie's attempts to preserve Dorfman's

objection to the ex parte communication with Student X. Those attempts did not result in

a waiver of Dorfman's right to assert that UCSD's repeated refusal to provide him with

Student X's identity violated his right to a fair process. (See Rinaker v. Superior Court

(1998) 62 Cal.App.4th 155, 168 ["Waiver is ' " 'the intentional relinquishment of a known

right after knowledge of the facts.' " ' [Citations.] Courts will not presume acquiescence

in the loss of a fundamental constitutional right . . . ; rather, we must indulge in every

reasonable presumption against the waiver of such a right."].)


                                              19
                                     DISPOSITION

       The order denying Dorfman's petition for a writ of mandate is reversed. The trial

court is directed to issue a writ of mandate requiring UCSD to set aside its dismissal and

remanding the matter to UCSD for further proceedings consistent with this opinion.



                                                                 O'ROURKE, Acting P. J.

WE CONCUR:



AARON, J.



IRION, J.




                                            20
