Judge: Mary H. Strobel, Case: 21STCP02031, Date: 2023-05-04 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP02031    Hearing Date: May 4, 2023    Dept: 82

Petitioner Mollie Vehling (“Petitioner”) moves for reconsideration pursuant to CCP section 1008 of this court’s order dated February 2, 2023, denying her petition for writ of mandate against Respondent the Regents of the University of California (“Respondent”).

Respondent’s Evidentiary Objections

(1)  – (7) Overruled.

      (8) – (10) Sustained.

Relevant Procedural History

            On June 25, 2021, Petitioner filed a petition for writ of administrative mandate against Respondent the Regents of the University of California, as well as UCLA Title IX Office and Adriana Ovalle-Stevenson, in her official capacity as Title IX Complaint Resolution Officer.  In the petition, Petitioner seeks a writ directing Respondent Regents “to set aside the Title IX administrative findings and decision imposed against Petitioner.”  (Pet. Prayer ¶ 1.) 

            Respondent has answered the petition.    

            On June 6, 2022, Petitioner filed her opening brief in support of the petition.  The court has received Respondent’s opposition, Petitioner’s reply, the administrative record, and the joint appendix.

On October 13, 2022, the petition came for hearing before the court.  Prior to the hearing, the court issued a written tentative ruling, which stated in pertinent part:

Because the petition and opening brief discussed not only Ovalle-Stevenson’s findings, but also the CHR investigation and the termination decision, the court requires clarification from Petitioner’s counsel at the hearing what specific administrative action(s) she challenges in this writ action. If Petitioner does not challenge Respondent’s decision to terminate her employment, including the findings made by hearing officer Daugherty (AR 2-24), Petitioner’s counsel should state so clearly on the record. In that event, Petitioner should also clarify whether she is seeking to overturn this finding without contending it has a consequential effect on her termination.

If the challenge is so limited, the court is inclined to authorize Respondent to file a supplemental opposition brief. Petitioner may file a supplemental reply to the supplemental opposition. In the parties’ supplemental brief, the parties should address, among any other relevant issues, whether the investigation findings of Ovalle-Stevenson are a final administrative decision subject to judicial review under CCP section 1094.5.

(McDonough Decl. Exh. B.)

At the October 13, 2022, hearing, the court questioned Petitioner’s counsel concerning the scope of the writ petition.  After discussion of that issue, the court continued the hearing so the parties could address issues related to the redaction of student names from the record. The court issued a minute order on October 13, 2022, stating: “Counsel for petitioner clarifies that he is challenging the termination decision (the final decision after the appeal) made by hearing examiner Dougherty.”  The parties waived notice of the court’s ruling.

            On February 2, 2023, after a hearing, the court denied the petition for writ of mandate and adopted its tentative ruling, which was distributed to counsel prior to the hearing.  In the tentative ruling, the court included a section titled “Scope of Petition: Petitioner Challenges the Termination Decision of Hearing Officer Dougherty.”  This section stated that at the October 13, 2022, hearing, “Petitioner’s counsel clarified that Petitioner is challenging the termination decision (the final decision after the appeal) made by Hearing Officer Dougherty. (Minute Order dated 10/13/22.)”  (Minute Order dated 2/2/23 at 6.) 

After the February 2, 2023, hearing, the court issued a lengthy minute order explaining the court’s reasons for denying the petition.  As relevant to the instant motion, the court concluded as follows:

[S]ubstantial evidence does not support the Hearing Officer’s finding that Petitioner violated the sexual harassment policy…. Nonetheless, the Hearing Officer expressly found that termination was appropriate even if there was no violation of the SVSH Policy. Substantial evidence supports this conclusion. Thus the court’s finding of a lack of substantial evidence that Petitioner violated the SVSH policy does not mean the Hearing Officer’s decision upholding the termination should be overturned. The Hearing Officer’s decision is supported by substantial evidence with respect to his other findings of misconduct, including those related to the Absinthe event.

(Minute Order dated 2/2/23 at 14-15.)

The court’s full discussion from the February 2, 2023, minute order is not repeated here but is incorporated by reference. 

Analysis  

Legal Standard

Code of Civil Procedure section 1008 governs applications to reconsider and provides, in relevant part:

(a)  When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

….[¶]

(e) This section specifies the court's jurisdiction.... No application to reconsider any order … may be considered by any judge or court unless made according to this section.

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law’ which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. . . .A motion for reconsideration will be denied absent a strong showing of diligence.”  (Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202.)

“A trial court may not grant a party’s motion for reconsideration that does not comply with section 1008.’”  (Cox v. Bonni (2018) 30 Cal.App.5th 287, 312.)

The Motion Seeks Reconsideration of this Court’s October 13, 2022, Ruling and is Untimely

Petitioner seeks reconsideration on the following basis: “The new and different facts and circumstances are that Petitioner’s counsel, caught by surprise at the hearing on the merits of the Petition, has reviewed the Reporter’s Transcript from the October 13, 2022, hearing and has provided his affidavit under Code Civ. Proc., § 473(a) regarding his mistake, inadvertence, surprise, or excusable neglect regarding modification or amendment of the scope of review in the Petition. (Code Civ. Proc., § 473.)”  (Mot. 6.)

Respondent contends that the motion is timely because Petitioner seeks reconsideration of the court’s October 13, 2022, ruling regarding the scope of the petition.  (Oppo. 11.)  The court agrees. 

October 13, 2022, was the initial trial date on the petition for writ of mandate.  At the October 13, 2022, hearing, the court specifically raised questions regarding the scope of the petition “which the court needs to have resolved before [it] can get to the merits.”  (Hathaway Decl. Exh. 1. at 1:25-28.)  Upon questioning from the court, Petitioner’s counsel eventually acknowledged and agreed that Petitioner is challenging the termination decision made by Hearing Officer Dougherty.  (Minute Order dated 10/13/22; see Hathaway Decl. Exh. 1 at 1-12.)  In light of Petitioner’s statements regarding the scope of the petition, the court declined to request supplemental briefing from the parties.  (See Hathaway Decl. Exh. 1 at 9-12.) 

The court specifically decided the scope of the petition, as a threshold issue, on October 13, 2022, and issued a minute order to that effect.  The court needed to rule on that threshold issue before it could rule on the merits of the petition.  For that reason, at the February 2, 2023, hearing, the court stopped Petitioner from making arguments concerning alleged Title IX administrative findings.  Specifically, when Petitioner’s counsel started to argue that the court should “set aside the Title 9 decision,” the court immediately stated:

The Court: Let me just stop you for a moment because we got a hearing on this, Mr. Hathaway, to make it very clear whether you were challenging the Title 9 or the termination or both, and you said you were challenging the termination. And that's in the minute order, we had a hearing on that, and the court continued the writ hearing on that understanding. So what is in front of me is the termination, and what the hearing officer concluded was that the conduct with respect to the Absinthe show constituted misconduct even if it didn't violate the harassment policy.

(Id. Exh. H at 5-6.)

While Petitioner purports to challenge the February 2, 2023, ruling, he really seeks reconsideration of the October 13, 2022, ruling regarding the scope of the petition.  Petitioner did not timely file a motion for reconsideration of that ruling.  Accordingly, the motion under CCP section 1008 must be denied as untimely. 

No Grounds for Reconsideration of February 2, 2023, Ruling

The motion is untimely.  In the alternative, Petitioner also does not satisfy the reasonable diligence requirement of CCP section 1008 for reconsideration. 

When a motion for reconsideration is based on alleged new or different facts, it is not sufficient for the moving party merely to adduce facts not previously presented to the court.  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690.) Facts that were known to a party at the time of the hearing or ruling on the order sought to be reconsidered, by their very nature, are not “new” or “different.”  (Id. at 690.) Furthermore, that party must show that reasonable diligence was used in uncovering all pertinent facts before the original motion was made.  (Forrest v. State of California Dept. of Corporations (2007) 150 Cal.App.4th 183, 202, disapproved of on other grounds by Shalant v. Girardi (2011) 51 Cal.4th 1164.)  The moving party must provide a “satisfactory explanation for the failure to produce [the] evidence at an earlier time.”  (Garcia, supra at 690.)

Petitioner identifies the new or different facts or circumstances as follows: “The new and different facts and circumstances are that Petitioner’s counsel, caught by surprise at the hearing on the merits of the Petition, has reviewed the Reporter’s Transcript from the October 13, 2022, hearing and has provided his affidavit under Code Civ. Proc., § 473(a) regarding his mistake, inadvertence, surprise, or excusable neglect regarding modification or amendment of the scope of review in the Petition. (Code Civ. Proc., § 473.)”  (Mot. 6.)

While Petitioner provides no evidentiary citation for this argument, she appears to  rely on the following statements in the declaration of attorney Mark Hathaway:

11. I do not have a copy of the Reporter’s Transcript from the hearing on February 2, 2023, but my recollection is that, having reviewed the court’s tentative ruling quickly, I began to argue that since the Court found that neither the UCLA Title IX decision nor the final decision of the hearing officer upholding the UCLA Title IX decision were supported by substantial evidence, that the Court must grant the Petition and enter judgment in favor of Petitioner. To my surprise, the Court stated that there had been a hearing and minute order and that I had agreed that the Petition was not seeking review of the UCLA Title IX decision nor of the final decision of the hearing officer upholding the UCLA Title IX decision that Petitioner was responsible for sexual assault, but only the final decision of the hearing officer terminating Petitioner’s employment. I did not believe that to be the case but accepted the Court’s representation and proceeded to argue on the other points in the tentative ruling.

12. Following the hearing on February 2, 2023, I located and reviewed the Reporter's Transcript of Proceedings for Thursday, October 13, 2022….

13. The Court asked me to clarify the scope of the Petition….

14. I did my best to respond to the Court’s inquiry, but the Court did not seem satisfied with my responses ….

15. …. My responses to the Court on October 13, 2022, may not be the model of clarity (at points I do not appear to understand what the Court is asking me to do), but I did not agree nor understand that I was agreeing to amend the relief sought by Mollie Vehling in the prayer of the verified Petition, the Opening Brief, and the Reply Brief. I did not agree then, and do not agree now, nor was I authorized or instructed to change the remedy that Petitioner has sought for four years, to set aside the improper UCLA Title IX finding that she is responsible for sexual harassment.

16. My confusion and surprise on February 2, 2023, is apparent in that regard. My lack of clarity and apparent misunderstanding of the Court’s line of inquiry on October 13, 2023 [sic] were due to my mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473.)

(Hathaway Decl. ¶¶ 11-16.)

Thus, in summary, Petitioner contends that the new or different facts or circumstances are that Petitioner’s counsel was “surprised” to learn on February 2, 2023, that the court interpreted his statements on October 13, 2022, to limit the scope of the petition to the final decision of Hearing Officer Daugherty. 

Assuming, without deciding, that the alleged “surprise” of Petitioner’s counsel is a new or different fact, the reasonable diligence standard is not satisfied.  As discussed, October 13, 2022, was the initial trial date on the petition for writ of mandate.  Prior to the hearing, the court issued a written tentative ruling stating that it sought clarification from the parties regarding the scope of the petition.  After Petitioner’s counsel initially suggested at the October 13, 2022, hearing that Petitioner sought review of Title IX administrative findings, the court pressed Petitioner’s counsel to clarify which steps in the administrative process were being challenged.  Petitioner’s counsel then stated, and agreed with the court, that Petitioner was challenging the final decision of Hearing Officer Daugherty.  (See Oppo. 8 and Hathaway Decl. Exh. 1 at 4-12.)

For purposes of the motion under CCP section 1008, the dispositive fact is that the court clearly ruled at the October 13, 2022, hearing and in a subsequent minute order that Petitioner’s counsel had clarified that the petition is challenging the termination decision made by Hearing Officer Dougherty.  The following discussion between the court and counsel demonstrates this fact:

The Court: “It sounds to me like you’re clarifying that you are – that Petitioner is challenging the termination decision.”

Mr. Hathaway: “Yes –” (Hathaway Decl. Exh. 1 at 4:27-5:1.)

Ms. McDonough, University’s counsel: “The termination decision and nothing past it is subject to a writ.”

The Court: “So Daugherty is the hearing examiner?”

Ms. McDonough: “Yes, your Honor.”

The Court: “And he’s reviewing the termination decision?”

Ms. McDonough: “That’s correct.”

The Court: “Okay. … I think we all agree that’s the subject of the writ. … I just wanted clarity on the decision including the termination of employment being the final decision that the Court is reviewing. I think we’re in agreement on that.”

Mr. Hathaway: “Thank you.” (Id. at 9:16-10:3.)

Mr. Hathaway: “I believe Daugherty is the end of the appeal. … Mr. Solano … sent a letter saying that that’s the final decision, but then Daugherty’s decision is reviewing the agency decision…. I understand --- I understand the position of the court and position of Regents.”

The Court: “Okay. There was a hearing, there was a final decision, it may have been called an appeal of the agency decision, but ultimately that’s the final agency decision that the Court will review. …. If we’re all kind of on the same page here, then I’ll turn to the issue of the record.”

Mr. Hathaway: “So the issue of the record, your honor….” (Id. at 11:28- 12:14 [bold italics added].)

At the close of the hearing, Mr. Hathaway offered to give notice.  (Id. at 17.)  The court issued a written order stating: “Counsel for petitioner clarifies that he is challenging the termination decision (the final decision after the appeal) made by hearing examiner Dougherty.”   (Minute Order dated 10/3/22.)  Ultimately, the parties waived notice of the October 13, 2022, ruling.  (Ibid.)  On November 28, 2022, attorney Hathaway signed a stipulation that quoted part of the October 13, 2022, tentative ruling.  (McDonough Decl. Exh. E.)

            Petitioner now argues that “[n]either [she] nor her counsel could have foreseen that the Court would amend the relief Petitioner sought all along to deny her writ petition.”  (Reply 7.)  She asserts that “Mr. Hathaway did not represent to the Court on October 13, 2022 that Petitioner’s request for relief was limited to setting aside the termination decision.”  (Ibid.)

However, if Petitioner disagreed with the court’s interpretation of the statements of attorney Hathaway, she could have, with reasonable diligence, raised that issue through her attorney at the October 13, 2022, hearing and certainly prior to or at the hearing on February 2, 2023.  Since Hathaway is Petitioner’s attorney and agent, his knowledge is imputed to Petitioner.  (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 828.)  As shown above, the court made it clear at the October 13, 2022, hearing and in the minute order of that date that attorney Hathaway clarified the scope of the petition to challenge the final decision of Hearing Officer Daugherty. 

The court made it clear in its tentative ruling issued before the October 13, 2022 decision that if Petitioner was intending to limit her challenge to the Title IX findings by Ovalle-Stevenson, the court was inclined to order further briefing on whether the investigation findings were a final administrative decision subject to judicial review under CCP section 1094.5.  Petitioner’s counsel clarified Petitioner was challenging the final agency decision of termination.

Hathaway attended the hearing; responded in the affirmative to the court’s statements that the petition challenged the final decision of Daugherty; stated that he understood the position of the court and Respondent that only Daugherty’s decision was at issue; and offered to give notice of the court’s ruling.  Hathaway later signed a stipulation quoting the court’s tentative ruling for the October 13, 2022, hearing.  Prior to the February 2, 2023, hearing, the court also issued a tentative ruling that expressly stated that, on October 13, 2022, Hathaway had clarified the scope of the petition to challenge only the final decision of Daugherty.  In his declaration, attorney Hathaway gives no satisfactory explanation for his failure to assert prior to or at the hearing on February 2, 2023, that he was surprised by the court’s ruling regarding the scope of the petition.  (Hathaway Decl. ¶¶ 16-17.)  He does not claim to have been unaware of the court’s comments at the October 13, 2022, hearing; the court’s minute order of that date; or the tentative ruling for the February 2, 2023, hearing.  Further, he was present for the court’s comments at the hearing on February 2, 2023, and did not raise any issue of “surprise” about the court’s ruling on the scope of the petition at that time. 

Based on the foregoing, the reasonable diligence requirement of CCP section 1008 has not been met.  Accordingly, the court lacks jurisdiction to grant reconsideration.

Upon Reconsideration, the Court Also Reaches the Same Result

            In the alternative, the court also reaches the same result even if reconsideration is granted.  CCP section 1094.5 authorizes limited trial court review “into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.”  (§ 1094.5(a) [bold italics added].)  “[J]udicial review via administrative mandate is available ‘only if the decision[] resulted from a 'proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency.’”  (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.)

The court is doubtful that the Title IX investigation would be considered a hearing within the meaning of section 1094.5.  However, even if it was, Petitioner cites no authority that the court may separately review an investigation finding, which was one of several grounds for the university’s decision to terminate employment, and where the termination decision was appealed and affirmed in a final decision after an evidentiary hearing before a neutral hearing officer.  The only case Petitioner cites is Doe v. Allee (2019) 30 Cal.App.5th 1036, 1059, a case involving student misconduct and not employment matters, and which does not support Petitioner’s position that Title IX investigation findings against university employees are subject to writ review.  (Reply 8.) 

            Since substantial evidence supports the other findings made by Hearing Officer Daugherty in support of the termination, and since those other findings in themselves supported the termination, there is no basis for the court to issue a writ as to findings made in the Title IX investigation. 

Petitioner Does Not Seek, and Is Not Entitled to, Relief Under CCP Section 473(b)

            Petitioner cites CCP section 473(b) but she does not request relief under that statute.  Indeed, as stated in reply, Petitioner “requests only reconsideration of the Court’s February 2, 2023 order denying Petitioner’s Petition for Writ of Mandate.”  (Reply 8:13-14.)

Further, Petitioner cannot rely on section 473(b) to seek reconsideration.  “To hold, under the circumstances presented in this case, that the general relief mechanism provided in section 473 could be used to circumvent the jurisdictional requirements for reconsideration found in section 1008 would undermine the intent of the Legislature as specifically expressed in section 1008, subdivision (e).”  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1501.)

Conclusion

            The motion is DENIED.