Judge: Curtis A. Kin, Case: 23STCP00224, Date: 2024-01-30 Tentative Ruling

Case Number: 23STCP00224    Hearing Date: January 30, 2024    Dept: 82

            Petitioner John Doe petitions for a writ of mandate directing respondent Fuller Theological Seminary to set aside a decision finding that petitioner engaged in sexual misconduct and suspending petitioner for five quarters.  

I.       Factual Allegations

            This is a sexual misconduct case. Jane Doe and petitioner John Doe were students at respondent Fuller Theological Seminary. (First Amended Petition [“FAP”] at 1:21-23.) According to allegations from Jane, on October 13, 2021, petitioner asked Jane sexual questions and made sexual comments. (FAP ¶ 15.) Petitioner also allegedly showed Jane pornography without her consent. (FAP ¶ 15.)

According to petitioner, Jane brought up topics about her sexuality and that he only asked follow-up questions. (FAP ¶¶ 18, 24.) Petitioner denied showing or attempting to show pornography to Jane. (FAP ¶ 18.)

            On October 23, 2021, Jane alleged that petitioner touched her thigh without her consent at a party. (FAP ¶ 15.) After the party and in Jane’s apartment, petitioner allegedly placed Jane’s hand on his penis and touched her breasts and vagina without her consent. (FAP ¶ 15.)

According to petitioner, Jane prompted petitioner to hold her hand. (FAP ¶ 19.) In Jane’s apartment, Jane purportedly initiated sexual contact between them. (FAP ¶ 19.) Jane placed petitioner’s hand on her breasts. (FAP ¶ 19.) Jane also placed her hand on petitioner’s penis. (FAP ¶ 19.) Petitioner removed her hand, but Jane continued touching him on his penis, including while he was asleep. (FAP ¶¶ 19, 24.)

Petitioner made a complaint with the Office of Student Concerns based on his version of the events of October 23, 2021. (FAP ¶ 16.) On December 2, 2021, respondent notified petitioner of Jane’s allegations and indicated that the Office of Student Concerns would investigate Jane’s claims. (FAP ¶ 12.)

Petitioner was interviewed on December 10, 2021, January 5, 2022, and February 7, 2022. (FAP ¶ 17.) On February 22, 2022, petitioner was provided with the Investigator’s report. (FAP ¶ 22.) Petitioner responded to the report on March 4, 2022. (FAP ¶ 22.) On May 5, 2022, petitioner was provided a copy of the final report. (FAP ¶ 22.)

On May 12, 2022, respondent conducted a hearing. (FAP ¶ 24.) Petitioner testified to his version of the events of October 13, 2021 and October 23, 2021. (FAP ¶ 24.)

On July 1, 2022, the hearing panel issued a report. (FAP ¶ 25.) The hearing panel found that Jane did not violate respondent’s sexual misconduct policy but that petitioner had engaged in non-consensual sexual contact with Jane. (FAP ¶ 25.) Petitioner was removed from student housing, directed to have no contact with Jane, and suspended for five consecutive quarters. (FAP ¶ 26.)

Petitioner appealed the hearing panel’s determination, which was denied. (FAP ¶¶ 28, 29.) Petitioner alleges that the hearing panel ignored exculpatory evidence and inconsistencies in the evidence, having resolved such inconsistencies in favor of Jane. (FAP ¶ 27.)

II.      Procedural History

            On January 26, 2023, petitioner filed a Petition for Writ of Administrative Mandate. On March 22, 2023, petitioner filed a First Amended Petition for Writ of Administrative Mandate. On January 5, 2024, respondent filed a Verified Answer to the First Amended Petition.

            On May 11, 2023, the Court (Hon. Mary H. Strobel) set the hearing on the writ petition for January 30, 2024. (5/11/23 Minute Order.) Judge Strobel ordered petitioner’s opening brief to be filed sixty days prior to the hearing date, i.e., December 1, 2023.  Judge Stroble also ordered that petitioner lodge the administrative record when filing petitioner’s Reply Brief, which was due 15 days prior to the hearing on the writ petition.  (5/11/23 Minute Order.)

No opening brief was filed or served. (See Engstrom Decl. ¶ 3; Ishikawa Decl. ¶ 5 [respondent not served with opening brief].)  Nor has the administrative record been lodged.

III.     Analysis

The petition for writ of mandate is brought pursuant to CCP § 1094.5. (FAP at 3:5, ¶¶ 38, 39; Prayer for Relief at ¶ 3.) Under CCP § 1094.5, “the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “ ‘prejudicial abuse of discretion.’ ” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.)

Petitioner also refers to CCP § 1085 in the operative petition. (FAP at 3:6, ¶¶ 6, 38.) “There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “The petitioner always bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

A memorandum of points and authorities is required for a noticed motion, including for mandamus. (See CRC 3.1113(a); Local Rule 3.231(b) [describing noticed motion procedure for prerogative writs].) The absence of a memorandum is an admission that the motion is not meritorious and may be denied. (CRC 3.1113(a).) “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (CRC 3.1113(b); see also Local Rule 3.231(i)(2) [opening brief must cite to administrative record].)

Rule of Court 3.1113 “rests on a policy-based allocation of resources, preventing the trial court from being cast as a tacit advocate for the moving party’s theories”. (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) The Court cannot evaluate arguments that are not made in the briefs and cannot make the parties’ arguments for them. (Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-63 [argument waived if not raised]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [same].)

As noted above, on May 11, 2023, the Court (Hon. Mary H. Strobel) ordered petitioner to serve and file the opening brief 60 days prior to the hearing date of January 30, 2024. (5/11/23 Minute Order.) Petitioner was ordered to lodge the administrative record on the same day the reply brief was filed. (Ibid.)

No opening brief was filed, timely or otherwise. No administrative record was lodged, timely or otherwise. Accordingly, petitioner fails to meet his burden to demonstrate how he was denied a fair hearing; how respondent failed to proceed in the manner required by law; how respondent’s findings, decision, and sanctions were not supported by the evidence; or how the sanction imposed against petitioner was without legal justification or factual basis. (FAP ¶ 38.)  In addition to affirmatively failing to meet his burden, petitioner’s failure to file an open brief constitutes a admission the petition lacks merit. (CRC 3.1113(a).)

IV.     Conclusion

            The petition is DENIED.