Judge Mitchell L. Beckloff, Case 20STCP01381 2022-08-31 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCP01381, Date: 2022-08-31 Tentative Ruling

Petitioner, David Baron, seeks an order requiring Respondent, Regents of the University of California, to set aside its December 4, 2019 decision denying Petitioner’s appeal. Through his appeal, Petitioner challenged his termination as Chief of Medical Staff at the UCLA-Santa Monica Medical Center and Orthopaedic Hospital (Medical Center). (AR 286.)

On November 17, 2021, after hearing argument, this court issued an interim remand directing Respondent to explain whether it considered Petitioner’s request for an extension in the PPSM 70 Complaint process, whether it has the authority to consider the request under the circumstances presented here, and/or provide an explanation that it did consider the request and the reasons for denying it.

On February 3, 2022, Respondent responded to the court’s interim remand order.

Petitioner’s request for judicial notice filed October 1, 2022 is denied as duplicative. The documents for which judicial notice is sought were all received as exhibits to the Declaration of Petitioner David B. Baron.

Petitioner’s request for judicial notice filed July 27, 2022 (effectively augmenting the record with post-remand documents) is granted.

Evidentiary Objections: As a preliminary matter, in traditional mandate, extra-record evidence is permissible where there is a challenge to “informal administrative actions if the facts are in dispute.” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576.) The court also finds none of the rulings on evidentiary objections determinative here. Nonetheless, Respondent’s objections are overruled except objection numbers 2, 16, 18, 19, 20 and 25 which are sustained.

From 2006 through 2010, Respondent employed Petitioner as Chief of Staff at the Medical Center. (Baron Decl., ¶ 2.) In 2011, Petitioner began serving as the Senior Executive Director of the Arthur Ashe Student Health and Wellness Center (the Ashe Center) on the campus of the University of California, Los Angeles (UCLA). (Baron Decl., ¶ 3.)

On August 9, 2016, a person (identified only as “Witness 3”) reported to UCLA’s Title IX office that “although she was not exactly sure what she saw [on Petitioner’s personal computer], she believed it was ‘porn.’ ” (Baron Decl., ¶ 25.) Five other witnesses (both current and former Ashe Center employees) reported seeing images of a sexual nature on Petitioner’s personal laptop computer during business hours from 2016 to late June 2018. (AR 2.)

On August 25, 2016, UCLA’s Title IX office issued the following guidance to the Ashe Center staff: “while incidental personal use of computers is allowable and even expected (during breaks and lunch), visiting websites that may have content that is offensive to others is not allowed. In other words, if your screen is in a public space, or is visible/may be visible to anyone but you, please refrain from visiting sites that others may find offensive.” (AR 6; Baron Decl., Ex. A.)

On June 5, 2019, UCLA provided Petitioner with a notice of its intent to terminate his employment. (AR 9.) Petitioner submitted a written response to the notice on June 14, 2019. (AR 9.)

On June 26, 2019, Petitioner attended a Skelly meeting with his counsel. (AR 4.) Vina Chin, Assistant Dean for Administration and External Relations at the School of Dentistry, served as the Skelly reviewer. (AR 9.) Chin recommended Petitioner be terminated. (AR 8.)

On July 16, 2019, Vice Chancellor of Student Affairs, Monroe Gorden, issued a notice of termination to Petitioner. (AR 9.) The notice advised Petitioner: “You have the right to a review of this action in accordance with PPSM[1] Policy 70 (Complaint Resolution).[fn] If you have questions regarding your appeal rights, you may contact Ms. Kathleen Shiroma, Employee Relations Consultant, at 310-794-0860 or kshiroma@chr.ucla.edu.” (AR 9.) The notice also contained a footnote reference: “See generally, https://www.chr.ucla.edu/policies-and-labor-contracts/ucla-procedures-for-uc-personnel-policies-for-non-represented-staff-members.” (AR 9.)

On August 27, 2019, Petitioner submitted a PPSM 70 Complaint (an appeal) of UCLA’s July 16, 2019 decision to terminate his employment. Implicitly acknowledging his appeal was untimely, Petitioner’s PPSM 70 Complaint requested an extension of “just 12 calendar days (8 business days) to submit [the] PPSM-70 Complaint.” (AR 60-66.) Petitioner noted his termination notice did not specify the number of days within which his PPSM 70 Complaint “needed to be filed,” Petitioner had not been provided with “a copy of the PPSM-70 policy or Complaint Form,” and the “link included” in the termination notice to the “applicable procedures was a dead link.” (AR 66.) Petitioner also noted he submitted his PPSM 70 Complaint within the 15 days permitted under UCLA’s PPSM 70 procedures to correct a flawed complaint. (AR 66.)

On September 4, 2019, UCLA’s Director of Employee & Labor Relations, Anthony Solana, Jr., denied Petitioner's PPSM 70 Complaint on the grounds Petitioner had “untimely filed” his appeal. (AR 58-59.) On September 24, 2019, Petitioner appealed UCLA’s September 4, 2019 decision denying his appeal “for formal processing” because the appeal was untimely to Respondent. (AR 58.) On December 4, 2019, Marie-Ann Hairston, Respondent’s Director, Systemwide Employee Relations, denied Petitioner’s appeal. (AR 110.)

On December 13, 2019, Petitioner requested reconsideration by Hairston. (AR 77.) Petitioner noted Hairston’s decision “fails to explain why a 12 calendar-day filing delay that divests him of rights under the PPSM 70 policy is appropriate, when [Petitioner] was not given proper notice of the policy or the deadline by the UCLA administration.”[2] (AR 77.)

As noted earlier, on November 17, 2021, after hearing argument from the parties, the court issued an interim remand order. The court remanded the matter to Respondent to whether it considered Petitioner’s request for an extension in the PPSM 70 Complaint process, and, if so, the reasons for denying Petitioner’s request.

On February 3, 2022, Respondent, through Solana, issued a response to the court’s interim remand order. Solana responded in a letter to Petitioner. Solana wrote in part:

“The deadline to submit a PPSM 70 complaint is set forth in PPSM Policy 70.III.B.5, which states, in part, "The employee must file a written complaint within 30 calendar days after the date on which the employee knew or could have reasonably be expected to have known of the event or action that gave rise to the complaint, or within 30 calendar days after the date of involuntary separation from the University, whichever is earlier." Accordingly, the deadline to submit a complaint contesting your July 16, 2019 Notice of Termination was Thursday, August 15, 2019, and your August 27, 2019 complaint was filed well after this deadline.” (Hathaway Decl., Ex. 1.)

At issue is UCLA’s PPSM 70 procedure and its provision allowing Solana as Respondent’s Director of Employee and Labor Relations of Campus Human Resources to “extend the deadlines contained in” the procedure. (Hathaway Decl., Ex. 1.) Solana explained as Director, he had applied and interpreted the extension provision in numerous cases since 2014. Solana explained, “UCLA Procedure 70.III.E. only provides [him] authority to grant an extension of the initial filing deadline when the employee both requests an extension prior to the 30-day period expiring and demonstrates good cause for an extension.” (Hathaway Decl., Ex. 1.) Solana also stated he did not have “the authority to consider complaints that are filed after the deadline, regardless of the reason.” (Hathaway Decl., Ex. 1.)

Finally, Solana revealed in the more than seven years he has served as Director, he had never granted a request for a retroactive extension of the PPSM submission deadline after the deadline had passed. (Hathaway Decl., Ex. 1.) Given Petitioner’s untimely request for an extension, Solana had no discretion to extend the 30-day filing deadline. (Hathaway Decl., Ex. 1.)

On February 14, 2022, Petitioner administratively appealed Solana’s response to the court’s interim remand order. (Hathaway Decl., Ex. 2.) On March 4, 2022, Respondent’s Vice President of Systemwide Human Resources advised Petitioner there was “no mechanism for appeal from the recent letter of Mr. Solana . . . .”[3] (Hathaway Decl., Ex. 3.)

The parties agree Petitioner is properly before the court pursuant to Code of Civil Procedure section 1085.[4] “[O]rdinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.” (Bunnett v. Regents of the University of California (1995) 35 Cal.App.4th 843, 848.)

A writ of mandate will lie “to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station” in cases “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc. §§ 1085, 1086.) It does not lie to control discretion conferred upon a public agency. (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491.) “Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citation]. [Citation.]” (Ibid.)

“Although mandate will not lie to control a public agency's discretion, that is to say, force the exercise of discretion in a particular manner, it will lie to correct abuses of discretion.” (Helena F. v. West Contra Costa Unified School Dist. (1996) 49 Cal.App.4th 1793, 1799.) “In determining whether an agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency’s action, its determination must be upheld. [Citation.]’” (Id.)

Under an ordinary mandamus action pursuant Code of Civil Procedure section 1085, the authority of the court is limited to determining whether the decision of the agency was arbitrary, capricious, entirely lacking in evidentiary support, or unlawfully or procedurally unfair. To establish entitlement to relief, the moving party must demonstrate the agency's “action was arbitrary, capricious or entirely without evidentiary support, [and/or that] it failed to conform to procedures required by law.” (People for Ethical Operation of Prosecutors and Law Enforcement v. Spitzer (2020) 53 Cal.App.5th 391, 407.)

Petitioner “seeks to overturn UCLA’s arbitrary and capricious decision to deny him a short extension to file a complaint while granting itself hundreds of days of extensions during its own Title IX investigation.” (Opening Brief 5:5-6.) Petitioner contends:

“UCLA’s action in denying [Petitioner’s] reasonable request for an 8-business day extension, after it had granted itself three 60-day extensions was an abuse of discretion, as it was arbitrary and capricious, procedurally unfair, contrary to established policy, and the standard for granting an extension was inconsistently applied to [Petitioner].” (Opening Brief 12:5-8.)

Respondent’s PPSM-70 addresses resolution of “complaints made by employees in the Professional & Support Staff (PSS) and Mangers and Senior Professionals (MSP) personnel groups.” (AR 112, 113.) An employee, of Petitioner’s position, may make a written complaint about a management action “that is alleged to have: adversely affected that employee’s existing terms and conditions of employment in a material way . . . .” (AR 113, 117.)

“The employee must file a written complaint within 30 calendar days after the date on which the employee knew or could reasonably be expected to have known of the event or action that gave rise to the complaint, or within 30 calendar days after the date of involuntary separation from University employment, whichever is earlier.” (AR 117-118.)

The personnel policy specifies “[a] complaint is considered ‘filed’ on the date it is postmarked, personally delivered, faxed or emailed.” (AR 118.)

UCLA terminated Petitioner’s employment on July 16, 2019. UCLA notified Petitioner by email as well as first-class mail of his termination on July 16, 2019 after his Skelly meeting. (AR 19.)

Petitioner appealed the decision on August 27, 2019 by submitting his PPSM-70 Complaint to UCLA. (AR 21.) On that day, he emailed the complaint as instructed by the complaint form. (AR 21, 28.)

There can be no dispute Petitioner did not timely file his complaint (i.e., appeal) under UCLA’s controlling policy, PPSM-70. Petitioner filed his complaint 12 days after the expiration of the personnel policy’s deadline for appeals. Thus, UCLA correctly decided Petitioner did not timely file his PPSM-70 Complaint. UCLA’s decision that Petitioner did not timely file his PPSM-70 Complaint is therefore not arbitrary or capricious; it is consistent with Respondent’s policies.

Petitioner contends, however, UCLA’s procedures implementing PPSM-70 provide no “bright-line deadline” for an appeal. (Reply 8:18.) Petitioner argues UCLA’s policy “specifically provides for the right to extend the deadline.” (Reply 8:19.) Petitioner’s position there is no “bright-line deadline” is premised on UCLA’s PPSM-70 procedures specifying that the Campus Human Resources Employee and Labor Relations Director (Solana) “may extend the deadlines contained in this procedure.” (AR 138.) (Reply 9:8-9.)

Respondent’s PPSM-70 policy when considered in whole does not support Petitioner’s position.

First, Petitioner mischaracterizes PPSM-70 when he argues there is no “bright-line deadline” for an appeal. The personnel policy procedures[5] emphasizes the first step in the appeal process for UCLA is to determine whether the PPSM-70 Complaint was timely filed. (AR 138 [“must be received . . . within thirty (30) calendar days,” “shall determine whether a complaint is timely and qualifies for review”]. See also 146 [requiring timely complaint to allow correction].) An appeal only qualifies for review if it is submitted within 30 days of the employee learning of the adverse employment action. UCLA’s procedures require an initial assessment of timeliness before the appeal may proceed. (AR 138.)

Respondent’s PPSM-70 policy is clear: “If an employee does not appeal by those deadlines [established by local procedures], the complaint will be considered resolved and closed on the basis of the last University response.” (AR 122.) Where the 30-day period for an appeal has run, the matter is concluded “and closed.” (AR 122.)

PPSM-70 does not provide a manner for reopening a concluded and closed matter. There is nothing in the policy allowing for the revival of an appeal period that has expired for consideration of a matter deemed “resolved and closed” under PPSM-70. (AR 122.) While UCLA’s PPSM 70 procedures generally allow for the extension of deadlines in the procedure (AR 138), nothing suggests the deadlines that have already passed and expired may be revived and then extended to open matters deemed resolved.[6] That is, once the clear 30-day deadline has passed, there is nothing in UCLA’s PPSM 70 procedures allowing the appeal period to be revived and a closed matter reopened. (Cf. People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 727. [“[O]nce the period has expired there is nothing left to extend. Common sense compels the conclusion that a trial court cannot extend a time period that has already expired. We must use commonsense when construing a statute.”])

While it is true, UCLA’s PPSM 70 procedures allow a 15-day extension to allow an employee to cure technical problems with a PPSM-70 Complaint, UCLA may provide such an extension only when the employee “timely” filed a “technically flawed” appeal. (AR 140, 146.) UCLA’s PPSM 70 procedures specify “[i]f the complaint has been filed within established time limits, the CHR ELR Director or HS ELR Director shall grant up to fifteen (15) calendar days extension of time in order to permit a technically flawed but timely complaint to be corrected and resubmitted.” (AR 140, 146 [emphasis added].) As Petitioner did not timely file his appeal, the 15-day extension period permitted by UCLA’s PPSM 70 procedures is inapplicable.

Finally, Petitioner’s reference to extensions obtained by UCLA during its investigation do not inform on whether UCLA acted arbitrarily in finding Petitioner’s appeal untimely filed. (Opening Brief 10:20-25; see Reply 9:25-28 [Citing AR 45].) The circumstances involving a Title IX investigation are distinct from those issues raised by an untimely appeal. Further, on this record, the court cannot determine the facts involving any Title IX investigation extension, whether such extensions were permissible under applicable policies and procedures, or whether UCLA obtained the extensions prior to the expiration of any relevant deadlines.

In supplemental briefing, Petitioner relies on the plan language of PPSM-70 purportedly allowing the Director (i.e., Solana) the authority to “extend the deadlines contained in this procedure.” (AR 138.) Petitioner argues, based on the Director’s interim remand response, the Director failed to exercise the discretion given to him in the PPSM-70 procedure. Petitioner acknowledges while mandate cannot lie to force discretion to be exercised in any particular manner, mandate can issue to require discretion be exercised.

The Director explains his discretion extends only to those requests made prior to the filing deadline for an appeal. (Hathaway Decl., Ex. 1.) Solana explains he has interpreted PPSM-70 in such a manner for more than eight years. (Hathaway Decl., Ex. 1.)

Respondent’s interpretation of its own rules and regulations is entitled to great weight and deference from the court. “Although statutory construction is ultimately a judicial function, ‘ “ the contemporaneous construction of a statute by an administrative agency charged with its administration and interpretation, while not necessarily controlling, is entitled to great weight and should be respected by the courts unless it is clearly erroneous or unauthorized [citations].” ‘ [Citation.]” (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1087.)[7]

The court also must “where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions.” (In re Marriage of Georgiou & Leslie (2013) 218 Cal.App.4th 561, 574.) Where two provisions within the same scheme can be harmonized, the court should give concurrent effect to both. (In re Greg F. (2012) 55 Cal.4th 393, 407.)

Here, PPSM-70 provides an employee’s failure to submit an appeal within 30 days results in Respondent deeming the matter resolved and closed. (AR 122.) Allowing the Director to extend the time to appeal after the matter has been deemed resolved and closed, undermines the whole of the review process specified in PPSM-70; there would be no finality to the appeal process. To limit the Director’s extension authority to the 30-day appeal period is consistent with PPSM-70’s provision concerning finality. It is also consistent with the PPSM-70 procedure allowing cure for technically defective appeals “filed within the established time limits.” (AR 146.)

Allowing the Director to extend the deadline within the 30-day period is consistent with PPSM-70’s finality provision—an extension granted within the 30-day appeal period precludes Respondent from deeming the matter resolved and closed where an employee has taken no action. Reading the Director’s authority as suggested by Petitioner would eviscerate the policy’s finality provision. Under Petitioner’s view, any untimely appeal—no matter when submitted—would be subject to some consideration (such as whether it should go forward) by UCLA. Petitioner’s view of the Director’s authority cannot be harmonized with UCLA’s finality provision.

Based on the foregoing the court cannot find UCLA acted arbitrarily when it found Petitioner did not timely file his appeal and/or when it did not grant Petitioner’s request to revive the appeal period after the deadline for a PPSM-70 Complaint had already run. The court finds Respondent’s interpretation of the Director’s ability to extend the time deadline to appeal only if the request is made within the 30 days allotted to appeal harmonizes the provisions in the process. Respondent’s interpretation of the Director’s authority is not absurd and is supported when the entire PPSM-70 process is considered.

Petitioner also contends UCLA acted arbitrarily when it failed to provide Petitioner with notice of his appeal rights. Petitioner believes UCLA should have properly advised him on the appeal process. Petitioner asserts UCLA did not give him appropriate notice and advise that any requests for extensions would not be granted. The court disagrees.

UCLA provided Petitioner with a notice of termination. The notice expressly advised Petitioner he had a “right to a review of [the] action in accordance with PPSM 70.” (AR 9.) Petitioner therefore knew exactly which policy governed any appeal. UCLA’s notice also provided Petitioner with the name of a specific human resources representative for any questions “regarding [his] appeal rights . . . .” (AR 9.) Thus, to the extent Petitioner did not understand or needed clarification, UCLA had provided him with a single contact for explanation and/or clarification. UCLA also provided Petitioner with an internet address for a link to UCLA’s personnel policies.[8] (AR 9-10.)

Petitioner has not met his burden of showing UCLA acted arbitrarily when it denied his appeal as untimely filed.

Whether UCLA Deprived Petitioner of Due Process and whether the Evidence Supports the Findings:

Petitioner also make several challenges to the substance of UCLA’s decision to terminate him.

Specifically, Petitioner claims UCLA violated Title IX because the resolution of the grievance was not “prompt and equitable.” (34 C.F.R. § 106.8, subd. (b).) Petitioner also argues UCLA’s findings Petitioner viewed pornography on a personal computer while on campus were contrary to the evidence and not a violation of UCLA’s policies. (Opening Brief 13:26-28.) Finally, Petitioner argues UCLA’s procedure was unfair because it did not provide him with a copy of all of the evidence it considered.

“Generally, ‘a party must exhaust administrative remedies before resorting to the courts . . . .’ ” (Hill RHF Housing Partners, L.P. v. City of Los Angeles (2020) 51 Cal.App.4th 621, 631 [citation omitted][rev. granted Sept. 16, 2020].) “ ‘The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).’ ” (Id. at 632 [quoting Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391].)

The exhaustion inquiry looks not just at the concreteness of the controversy, but at whether the parties have proceeded “through the full administrative process ‘to a final decision on the merits.’ ” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489 [citation omitted].) “Under California law, exhaustion of administrative remedies is not a matter of judicial discretion but is a jurisdictional rule of procedure that forecloses judicial review until it is satisfied.” (Public Employees' Retirement System v. Santa Clara Valley Transportation Authority (2018) 23 Cal.App.5th 1040, 1046.)

As discussed on demurrer, Petitioner’s due process issues are not properly before the court.[9] Petitioner failed to exhaust his administrative remedies by failing to timely file an appeal UCLA’s July 16, 2019 termination decision. Petitioner’s arguments tacitly concede the point: Petitioner reports “[i]f [Petitioner] grievance may proceed through the University’s administrative process, he will likely be successful in appealing the determinations and the unjust termination of his employment.” (Opening Brief 15:9-10.) The court may not now address the claims—the issue is jurisdictional.

[1] PPSM is an anacronym for Personnel Policy for Staff Members. (AR 110.)

[2] The administrative record does not establish what, if any, decision Hairston made about reconsideration.

[3] While the March 4, 2022 letter does not explain why there is no mechanism for appeal, the court notes Solana made no new decision on February 3, 2022. Solana merely explained his earlier action—he did not consider the extension request because Petitioner submitted it after his deadline to appeal had run.

[4] The petition seeks relief under Code of Civil Procedure section 1094.5 or Code of Civil Procedure section 1085.

[5] UCLA establishes its own procedures to implement Respondent’s PPSM 70. (AR 122.)

[6] The appeal process sets forth various deadlines. (See AR 141 [20-day decision period], 142 [30 days for fact-finding report].)

[7] “Generally, the rules that govern interpretations of statutes also govern interpretation of administrative regulations.” (Berkely Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1097.)

[8] The court acknowledges Petitioner’s position the link was “dead” and not operating. Of course, UCLA did not have a obligation to provide such an address. Petitioner also asserts: “The reasonable inference is that the University intentionally provided [Petitioner] with a dead internet link and misled him to believe that a hearing would be forthcoming without further action on his part.” (Opening Brief 10:2-3.) Nonetheless, even assuming UCLA provided a “dead” link to Petitioner, there is no evidence Petitioner communicated with his identified contact to resolve the issue.

[9] The introductory paragraph of Petitioner’s Opening Brief recognizes the single issue before the court—did UCLA act arbitrarily when it denied his appeal as untimely filed?