Judge James C. Chalfant, Case Number: 23STCP02565, Date: 2023-12-12 Tentative Ruling

John Doe v. Office of Administrative Hearings et al, 23STCP02565

Tentative decision on motion to strike: mostly denied

Real Party-in-Interest Los Angeles Community College District (“District”), erroneously sued as Los Angeles Community College District Board of Trustees (“Board”), moves to strike portions of John Doe’s (“Doe”) First Amended Petition (“FAP”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Doe commenced this action on July 21, 2023. The operative pleading is the FAP filed on October 4, 2023, against Respondent State of California Office of Administrative Hearings (“OAH”) and Real Party-in-Interest District, alleging a cause of action for administrative mandamus. The FAP alleges in pertinent part as follows.

At all relevant times, Doe was an employee of Los Angeles City College (“LACC”). FAP at ¶1. The pertinent issues under CCP section 1094.5 are whether the OAH proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. FAP at ¶9.

Board Rules, Chapter XV, section 15001 (“Chapter XV”) was last amended March 9, 2016. FAP at ¶10. It states that the District’s policy is to provide a safe educational, employment and business environment free from Prohibited Discrimination, Unlawful Harassment, and Sexual Misconduct, as defined in the Administrative Regulations associated with Board Rules. FAP at ¶10. Section 15001(C) empowers the Office for Diversity, Equity and Inclusion (“ODEI”) to investigate all complaints, empowers the site’s Title IX Coordinator to implement temporary sanctions, and empowers the College President or a Deputy Chancellor at the Educational Services Center (“ESC”) to implement permanent sanctions. FAP at ¶11.

District Administrative Regulation C-14 (“Reg. C-14”) defines the terms “Gender-based Harassment,” “Prohibited Discrimination,” “Retaliation,” “Sexual Harassment,” and “Sexual Misconduct.” FAP at ¶¶ 12-16.

As a recipient of federal funds, LACC is bound by Title IX of the Education Amendments of 1972 (“Title IX”) and its regulations. FAP at ¶17. LACC asserts that its grievance procedures and Reg. C-14 procedures for sexual harassment and related offenses comply with Title IX and Education Code (“Educ. Code”) section 67386. FAP at ¶18.

The ODEI Director receives Title IX complaints and assigns each case to a Compliance Officer. FAP at ¶¶ 19-20. The Compliance Officer investigates and refers the matter to the Title IX Coordinator, who oversees the processing of all Sexual Harassment and Sexual Misconduct cases. FAP at ¶¶ 20-21.

Reg. C-14 requires a Compliance Officer to be an impartial resource, factfinder, and investigator and not an advocate for any party. FAP at ¶22. A Compliance Officer must apply the same impartial fact-finding and investigation skills to investigations and reports of alleged Title IX violations as other investigations. FAP at ¶22. This dual or triple role of one person acting as investigator, prosecutor, and judge creates a conflict that deprives complainants and respondents of an adequate, reliable, and impartial investigation. FAP at ¶23. The court in Doe v. Allee (2019) (“Allee”), 30 Cal.App.5th 1036, 1069, found that arrangement unlawful in California. FAP at ¶23.

Under Reg. C-14(VII)(C), complaints not involving Sexual Misconduct must be filed within one year of the date that “the Reporting Individual and/or Alleged Victim knew or reasonably should have known” the facts underlying the complaint. FAP at ¶24. Sexual Misconduct complaints must be filed within 180 days of the alleged discrimination unless the OCR extends the deadline for good cause. FAP at ¶25. Under Reg. C-14(VII)(C), an investigator must complete the investigation within 60 calendar days unless good cause exists for extending the time, in which case all parties must be kept informed. FAP at ¶26.

The investigator meets with the parties separately, gathers evidence, and determines the relevance of witnesses and other evidence. FAP at ¶¶ 27-28. Both parties must have an equal opportunity to meet with the investigator, submit information and evidence, and identify witnesses. FAP at ¶29.

LACC has no evidence that the Title IX investigator and adjudicator presiding over Doe’s case was impartial or unbiased. FAP at ¶30. LACC provided no live evidentiary hearing for Doe to cross-examine the complainant and adverse witnesses so that an independent, neutral adjudicator can evaluate party and witness credibility before making factual findings. FAP at ¶31.

Reg. C-14(VIII)(D) requires the Compliance Officer to submit a report on each completed investigation to the college president or ESC Deputy Chancellor. FAP at ¶33. The college president sends the accused and alleged victim a summary of the report, informs them of and provides them with an opportunity to make an oral statement, and hears the oral statements. FAP at ¶¶ 34-35.

The president then determines if the accused committed the alleged acts, and he sends a written decision on the complaint to the alleged victim and accused. FAP at ¶¶ 33, 35. In cases involving allegations of Sexual Harassment, this written decision must be within 60 days of when the investigation began. FAP at ¶36. Under Reg. C-14(XI)(C), the decision must include specific language that a copy of the written decision will be placed in the accused’s personnel file in a sealed envelope. FAP at ¶37. The accused has the right to submit a response, which will also be added to the file. FAP at ¶37.

Under Reg. C-14(XI)(B), a complainant and respondent have an equal opportunity to appeal the written decision and sanctions thereunder within 15 days of the written decision. FAP at ¶38. The Board shall review the written appeal. FAP at ¶39. If the Board does not act on the appeal within 45 days, the written decision is final. FAP at ¶39.

Reg. C-14(XII)(A) entitles the accused to due process rights defined by law, Board rules, the Personnel Commission, Student Discipline Policy and Procedures, and any applicable collective bargaining agreement or Memoranda of Understanding. FAP at ¶40.

Extended Opportunity Programs & Services (“EOPS”) is a state-funded program to support students who are poor and have fewer educational opportunities. FAP at ¶41.

In 2014, Senate Bill 1023 authorized the California Community Colleges Chancellor’s Office to fund up to ten community college districts to support the postsecondary education of current and former foster youth. FAP at ¶42. Cooperating Agencies Foster Youth Educational Support (“CAFYES”), later renamed NextUp, provides assistance to college-level foster youth. FAP at ¶42. CAFYES/NextUp expands upon the services provided through EOPS and serves a significant governmental and public interest. FAP at ¶43. Various programs and methods identify pre-qualified LACC students for recruitment to CAFYES/NextUp. FAP at ¶44. LACC receives funding for identifying and recruiting additional students to the CAFYES/NextUp program. FAP at ¶45.

Doe is a first-generation immigrant whose mother brought him to the country in the trunk of her car. FAP at ¶49. Doe focused on improving himself and eventually received a PhD in Educational Leadership in 2009. FAP at ¶54. He chose to dedicate his life to helping foster youth through non-profit organizations and educational rights advocacy. FAP at ¶¶ 55-56.

In 2016, he became an LACC CAFYES/NextUp Counselor/Coordinator. FAP at ¶¶ 57-58. He was the first to arrive at the office and the last to leave. FAP at ¶59. He received 100% positive student evaluations in 2016 and 99% in 2017. FAP at ¶60. His positive evaluations earned him a third- and fourth-year contract. FAP at ¶62. He used CAYFES’ gift card incentive program without impropriety or controversy, and the EOPS accountant kept records of the gift cards he awarded. FAP at ¶¶64-67.

In 2018, Doe reported to LACC’s former Community Services Manager that the EOPS/CAFYES Program was being mismanaged and its funding misappropriated. FAP at ¶68. Soon after, six former student workers and students falsely accused Doe of verbal and physical sexual harassment, discrimination based on sex or gender, harassment based on race or ethnicity, and retaliation. FAP at ¶69.

Part-time Student Worker “A.B.” appears to be the start of the allegations. FAP at ¶70. In March 2017, Doe hired A.B. as a CAFYES/NextUp student worker along with “K.S.,” “J.E.,” and “A.P.” FAP at ¶71. A.B. was unproductive, inefficient, and had a negative attitude in her capacity as a student worker. FAP at ¶72. She arrived late at work and complained when asked to do her job. FAP at ¶72. Her rude behavior when Doe tried giving her instruction made her difficult to supervise. FAP at ¶73.

In April or May 2017, Doe informed A.B. that he intended to fire her for poor performance. FAP at ¶74. In May 2017, A.B. reported Doe to LACC Dean and Title IX Coordinator Jeanette Magee for purportedly inappropriate sexual communication and use of profanity. FAP at ¶75.

On June 1, A.B. filed a formal complaint for race, sex, and gender discrimination (“A.B. Complaint”). FAP at ¶77. She listed Guardian Scholars workers “L.B.” and “L.S.” and Guardian Scholars student “C.A.” as witnesses, but not student worker “J.A.” FAP at ¶¶ 77-78.

The A.B. Complaint falsely accused Doe of making her work over 25 hours without pay. FAP at ¶79. All students clock in and out with EOPS, and Doe was not involved in that system or LACC payroll. FAP at ¶79.

On June 28, eight days after A.B. graduated, Compliance Officer Victoria Friedman (“Friedman”) provided Doe notice of the A.B. Complaint. FAP at ¶¶ 80-81. This notice informed Doe that A.B. alleged unlawful discrimination based on race, sex, and gender, plus multiple occasions of racially charged or sexually suggestive comments to her, but the notice provided no details. FAP at ¶82. Without knowledge of its allegations, Doe’s July 12 response assumed the A.B. Complaint was based on his decision to terminate A.B. as a student worker. FAP at ¶83.

While the LACC interviewed A.B. and Doe in August 2017, LACC staff member Veronica Garcia (“Garcia”) recruited students to testify against Doe. FAP at ¶85. LACC did not act on the A.B. Complaint until June 2018. FAP at ¶86.

“I.N.” was recruited to the CAFYES/NextUp program on April 28, 2016, four months before Doe was hired at LACC. FAP at ¶87. They had infrequent contact and no apparent issues through September 28, 2017. FAP at ¶88.

On November 9, 2017, I.N. submitted a complaint (“I.N. Complaint”) alleging unsolicited unprofessional behavior by Doe during September 28 to November 8, 2017. FAP at ¶89. I.N. listed Garcia, J.A., Guardian Scholars program assistant Myra Infante, and Guardian Scholars worker “B.C.” as witnesses. FAP at ¶89.

Beginning late September 2017, Doe repeatedly requested that I.N. provide a State of California Foster Care Verification form. FAP at ¶90. CAFYES/NextUP requires these forms. FAP at ¶90. Nevertheless, the I.N. Complaint alleged this made her feel like the CAFYES/NextUP resources she used were being threatened. FAP at ¶90. I.N. also complained that on October 12, 2017, Doe made her attend a workshop before she could collect a $100 gift card already awarded to her based on academic achievement. FAP at ¶91. Also on October 12, Doe had jokingly asked I.N. in front of her peers if she had been “smoking weed.” FAP at ¶91.

LACC did not initially act on the I.N. Complaint. FAP at ¶92. In Spring 2018, I.N. transferred out of LACC. FAP at ¶92.

On January 11, 2018, Doe informed several LACC directors and officers that CAFYES/NextUp did not comply with the Chancellor’s Office’s rules and regulations. FAP at ¶93. Students in the program were not receiving services to which they were entitled by law. FAP at ¶93. He also noted that despite the current CAFYES/NextUp budget, LACC failed to hire the additional staff the program needed. FAP at ¶94. Doe repeated these concerns multiple times in January 2018. FAP at ¶¶ 95-96.

On January 22, 2018, LACC Dean of Student Services Drew Yamanishi (“Yamanishi”) sought to add a memorandum to Doe’s personnel file with the District Human Resources. FAP at ¶97. These efforts failed. FAP at ¶97.

On January 25, 2018, Doe filed a grievance (“Doe Complaint”) against Yamanishi and EOPS/CAFYES/NextUp Counselor Araksia Dovlatyan (“Dovlatyan”). FAP at ¶98. He alleged that Dovlatyan had invited him to present the CAFYES/NextUp program at a “Counselor to College Summit” on January 26, 2018. FAP at ¶98. Yamanishi and Dovlatyan then retracted the invitation to compel Doe to attend a seven-hour customer service workshop he had already completed. FAP at ¶98. This decision was discrimination, retaliation, and unfair. FAP at ¶98.

Interim President Mary Gallagher did not address the Doe Complaint or address his concerns about compliance with CAFYES/NextUp. FAP at ¶99. She instead reassigned Doe to split his time between CAFYES/NextUp Counselor and EOPS Counselor. FAP at ¶99. His duties as a CAFYES/NextUp Coordinator were terminated and transferred to Dovlatyan. FAP at ¶¶ 99-100.

On March 20, 2018 the LACC investigator interviewed Boris Lopez (“Lopez”). FAP at ¶101. Lopez was a member of Doe’s evaluation and tenure committees in December 2016 and November 2017. FAP at ¶101. This was the first activity in LACC’s investigation of the A.B. and I.N. Complaints against Doe since November 2017. FAP at ¶101.

On June 20, 2018, Doe received a Notice of Investigation. FAP at ¶102. On June 25, he received notice that he was being placed on paid administrative leave. FAP at ¶102.

Case law such as Allee, supra, 30 Cal.App.5th at 1069-70, holds that the Title IX investigation model used by LACC is fundamentally flawed and lacking in due process. FAP at ¶103. Friedman was the sole investigator and fact finder for the complaints against Doe. FAP at ¶105. Garcia was interviewed over three days as the key witness, whereas Friedman only interviewed one of the 13 witnesses Doe said had specific knowledge about the allegations. FAP at ¶¶ 105-106. Friedman also chose not to consider the Doe Complaint’s allegations of retaliation for protected whistleblower activities. FAP at ¶107. Her investigation lasted 568 days, well over the 60-day limit for such investigations. FAP at ¶108.

Doe denies all the allegations in the complaints against him. FAP at ¶109. He did not engage in sexually inappropriate, discriminatory, and intimidating conduct towards any LACC student, student worker, or staff. FAP at ¶109.

After its investigation, LACC sought to terminate Doe’s employment. FAP at ¶110. On May 10, 2021, LACC served him with a Notice of Intent to Dismiss or Penalize and a Statement Of Charges. FAP at ¶111. Educ. Code section 87675 prohibited the District from presenting testimony or evidence related to matters that occurred over four years before the charges were filed. FAP at ¶112.

An administrative law judge (“ALJ”) heard the matter in 2022. FAP at ¶113. On June 23, 2023, the OAH notified Doe that the ALJ decided to uphold the District’s decision to terminate his employment. FAP at ¶114. Doe has now exhausted his administrative remedies. FAP at ¶115.

The OAH decision was a “rubber stamp” of the District’s invalid actions and decision. FAP at ¶¶ 117-118. Its proceedings were an extended version of the LACC’s one-sided investigation. FAP at ¶119. It included the cross-examination of new witnesses who interacted with the parties daily and never even heard rumors of Doe committing misconduct. FAP at ¶119. The OAH committed an abuse of discretion by ratifying District actions without rational basis. FAP at ¶120.

Doe has a vested right under Title IX to not be deprived of his right to employment via an administrative process that was not fair, impartial, reliable, and equitable. FAP at ¶122. The court must therefore exercise its independent judgment and find an abuse of discretion if the findings are not supported by the weight of the evidence. FAP at ¶123. Doe’s success in this action will result in a substantial non-pecuniary benefit to those subject to Title IX disciplinary processes. FAP at ¶128.

Doe seeks an order compelling the OAH to set aside its decision, an alternative writ of mandate compelling it to set aside the OAH Decision or show cause as to why a peremptory writ of mandate to that effect should not issue, a peremptory writ of mandate, and reasonable attorney’s fees and costs. FAP Prayer for Relief at ¶¶ 1-5.

On December 7, 2023, the District withdrew a demurrer to the FAP at the court’s suggestion.

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. CCP §435(b)(1). CCP section 436 permits the court to strike out any irrelevant, false, or improper matter, as well as any part of any pleading not in conformity with an order of the court. Irrelevant matters are defined as those allegations that are not essential to the statement of a claim or that are neither pertinent nor supported by an otherwise sufficient claim. CCP §431.10(b).

The notice of motion to strike shall be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and shall be noticed for hearing and heard at the same time as the demurrer. CRC 3.1322(b). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. CRC 3.1322(a).

A motion to strike can serve an important function of deleting matter for which a defendant may not be able to demur but for which the defendant should not have to suffer discovery and navigate the thicket of proceedings for summary adjudication. Ph II, Inc. v. Superior Court (1995) 33 Cal.app.4^th 1680, 1682-83. The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. CCP §437(a). Matter to be judicially noticed shall be specified in the notice of motion. CCP §437(b). When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. Perlman v. Municipal Court, (1979) 99 Cal. App. 3d 568, 575.

The District moves to strike portions of the FAP that discuss the District’s investigation and adjudication policies (FAP at p. 3:16-17, ¶¶ 10-40, 103), Title IX protections (FAP at ¶¶ 122, 128), District programs (FAP at ¶¶ 41-48), Doe’s personal history (FAP at ¶¶ 49-69), and the history of the complaints and the LACC’s investigation (FAP at ¶¶ 70-101). Mot. at 2-3.

The District presents evidence that, on October 26, 2023, it requested via letter that Doe resolve the issues outlined in the motion to strike. Travis Decl., ¶2, Ex. 1. The parties met on October 30, 2023 to discuss the issues in this letter but could not resolve them. Travis Decl., ¶¶ 3-4. The District fulfilled all meet and confer requirements.

The District cites the FAP’s discussion of the District’s “Misconduct and Adjudication Policies”, which allege the process for investigating and disciplining LACC students and staff after a complaint. FAP at ¶¶ 10-40. The District asserts that the court should strike the entire section because “former” or “legacy” policies are not relevant to this matter. Mem. at 6; Reply at 2. It argues that the FAP admits that these policies were amended in 2016 and are illegal, citing Doe v. Allee, supra, 30 Cal.App.5^th at 1036, a decision decided three years after the policies were amended. FAP at ¶¶ 10, 23. Mem at 7.

The District misinterprets the FAP’s allegations. The FAP asserts that Chapter XV was “last” amended in March 2016, meaning that the current version -- presumably the version that was applied to Doe -- is illegal. The FAP does not cite outdated District policies on discrimination and harassment.

The FAP alleges that Doe has a vested right under Title IX not to be deprived of his right to employment via an administrative process that was not fair, impartial, reliable, and equitable. FAP at ¶122. As a recipient of federal funds, LACC is bound by Title IX and its regulations. FAP at ¶17. Doe’s success in this action will result in a substantial non-pecuniary benefit to those subject to Title IX disciplinary processes. FAP at ¶128.

The District argues that Doe’s claim lies in administrative mandamus and does not make a substantive claim of a Title IX violation. Therefore, the portions of the FAP that cite Title IX (¶¶ 122, 128) should be stricken as irrelevant. Mem. at 7.

Doe responds that the FAP seeks relief from the OAH Decision, not the District’s decisions. Opp. at 6. The FAP cites CCP section 1094.5 to identify the pertinent issues to be whether OAH proceeded without jurisdiction, conducted an unfair trial, or committed a prejudicial abuse of discretion. FAP at ¶9.

An abuse of discretion is established if the OAH has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. CCP §1094.5(c). Doe has alleged that both the LACC’s investigation and the ALJ’s proceedings violated the law for various reasons. For example, LACC extensively interviewed its main witness and excluded most of the witnesses Doe identified. FAP at ¶¶ 105-06. The ALJ’s hearing was an extended version of this one-sided investigation but with new witnesses. FAP at ¶119. The FAP concludes that the OAH committed an abuse of discretion because its hearing did not comply with the procedural requirements of Title IX and due process. FAP at ¶122.

The FAP’s allegations that the District violated Title IX are relevant to judicial review of the OAH decision.

The District’s motion divides the FAP’s assertions of fact into three groups: (a) the A.B. and I.N. Complaints against Doe and the LACC’s investigation into them (FAP at ¶¶ 70-101); (b) background information on LACC programs (FAP at ¶¶ 41-48); and (c) Doe’s personal background (FAP at ¶¶ 49-69). The District argues that none are relevant to a challenge of the OAH decision and the evidence presented in the administrative proceeding. Mem. at 7-8.

Paragraphs 70-101 outline the A.B. and I.N. Complaints underlying Doe’s termination (FAP at ¶¶ 71-92), as well as the Doe Complaint that he alleges the LACC ignored (FAP at ¶¶ 93-100). Doe contests his termination in part because he denies the wrongdoing outlined in the A.B. and I.N. Complaints. FAP at ¶109. The FAP asks the court to review the evidence to determine whether it supports the OAH decision’s factual findings on these complaints. FAP at ¶123.

The District asserts that these allegations are irrelevant because the court’s decision must be based on the administrative record. Mem. at 8; Reply at 2. That fact is not in dispute, but it is not significant for the current issue. The FAP may allege what Doe considers to be the true facts, which the OAH erred in not finding. That is the purpose served by (a) the complaints against and by Doe and the LACC’s investigation into them (FAP at ¶¶ 70-101) and (b) background information on LACC programs (FAP at ¶¶ 41-48). The inclusion of these allegations was proper.

The allegations concerning Doe’s background do not serve this purpose. They detail Doe’s rise from an immigrant in the trunk of his mother’s car to a CAFYES/NextUp Counselor/Coordinator who inspires others. FAP at ¶¶ 49-67. These facts do not affect the merits of the complaints against and by Doe or the lawfulness of the OAH decision. Paragraphs 49-69 are stricken as irrelevant.

A petition for administrative writ of mandate shall be filed not later than 90 days following the date on which the decision becomes final. CCP §1094.6(b).

The District asserts that the allegations of District policies (¶¶ 10-40) and Title IX (¶¶ 122, and 128) are irrelevant because mandamus actions based on District misconduct or Title IX violations are time-barred. Mem. at 8. The FAP asserts that Doe received a Notice of Investigation on June 20, 2018. FAP at ¶102. It alleges the investigation took 568 days. FAP at ¶108. This means the investigation ended on January 9, 2020. Mem. at 8. The statute of limitations for a mandamus action expired 90 days later, on April 9, 2020, and Doe did not file the Petition until July 21, 2023.

The District’s suggestion of untimeliness is based on the incorrect belief that the FAP seeks review of the District’s decisions. Doe was required to exhaust his administrative remedies and he did not do so until the OAH decision upheld his termination. FAP at ¶¶ 114-15. The OAH decision was issued on June 23, 2023. FAP at ¶114. Under CCP section 1094.6(b), he had 90 days to file an administrative mandamus petition. The Petition was filed on July 21, 2023 and is timely.

The FAP may properly allege the District’s misconduct and Title IX violations.

The motion to strike is granted for FAP paragraphs 49-69 and denied for all other paragraphs.

[1] Doe failed to lodge a courtesy copy of his opposition in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. His counsel is admonished to provide courtesy copies in all future filings.