Judge Mitchell L. Beckloff, Case 21STCP00249 2022-12-09 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP00249, Date: 2022-12-09 Tentative Ruling

Petitioner, Nikolai Alistair Barron, seeks an order compelling Respondent, University of Southern California (USC), to retract its July 2, 2019 letter purporting to revoke Petitioner’s “offer of admission.” Petitioner also seeks an order compelling USC to refer its disciplinary concerns about Petitioner to its Office of Student Judicial Affairs and Community Standards (SJACS) pursuant to the USC Student Handbook (Handbook).

USC opposes the petition. USC also objects to (1) Petitioner’s submission of an “administrative record” as if the matter were an action for administrative mandamus, and (2) Petitioner’s late filed Reply Brief. (Petitioner did not respond to USC’s objections filed December 6, 2022.)

USC’s objection to the court’s receipt of the “administrative record” is well taken and sustained. As ultimately acknowledged by Petitioner in his Reply Brief, this matter is before the court pursuant to Code of Civil Procedure section 1085. The 161 pages submitted to the court in a binder as “evidence” for this proceeding has not been provided to USC and is inadmissible in this form. The material is untethered to any evidence necessary for foundation and/or authentication. Moreover, at the time USC filed its opposition brief (and apparently to this day), Petitioner has not provided a copy of the purported administrative record that Petitioner lodged with this court to USC.

“In traditional mandamus based on an agency’s ministerial duty or informal action, and in other prerogative writs where no administrative hearing was required by law, the evidence is presented by way of declarations, deposition testimony, and documentary evidence unless a statute expressly provides for a record. . . . The evidence must be attached to the parties’ briefs or filed as a separate appendix. . . .” (Los Angeles County Court Rules, Rule 3.231, subd. (h).)

While not applicable under the circumstances here but nonetheless instructive, the court’s local rules require the parties to “cooperate to ensure timely completion of a record which they agree is complete and accurate.” (Id. at subd. (g).)

USC’s objection and motion to strike Petitioner’s late filed Reply Brief is denied. The court finds USC has identified no prejudice suffered based on the delay.

Petitioner alleges he was a student at USC “and was enrolled and registered to attend classes in USC’s Part-Time MBA Program.” (Pet. ¶ 1.) On July 2, 20219, Petitioner “received a letter from USC purporting to revoke Petitioner’s ‘offer of admission’ but which decision failed to follow USC’s policies and internal regulations.” (Pet. ¶ 1.)

The Handbook provides USC’s Director of Admissions may conduct a special admissions review of a prospective student prior to “enrollment.” (Pet. ¶ 4.) The special admissions review “may result in revocation of admission ‘prior to enrollment’ in situations in which ‘false and/or inaccurate information’ was submitted, or an ‘academic or behavioral violation[]’ has occurred, ‘of if there is a failure to provide all requested information/documents.’ [Handbook at § 14].” (Pet. ¶ 4.) No hearing occurs and no appeal lies from any decision made after a special admissions review. (Pet. ¶ 4.)

The Handbook also specifies if a student is enrolled at USC “when concerns about admissions violations arise, the case will be referred to [SJACS] for review.” (Pet. ¶ 4.) Unlike a special admissions review, a decision made by SJACS is subject to an administrative appeal. (Pet. ¶ 6.)

Petitioner applied for and was “accepted into” the part-time MBA program on April 24, 2019. (Pet. ¶ 7.) “Petitioner’s status changed from simply an admitted student to an enrolled graduate student when he submitted his non-refundable deposit and Statement of Intent, and was welcomed to [USC] as a student, complete with a USC student ID.” (Pet. ¶ 8.)

“By May 14, 2019, Petitioner had completed all of his registration activities, including loading funds into his USCard and signing the 2019 Core Registration Authorization. As such, he was invited to attend and did attend an event for MBA.PM students.” (Pet. ¶ 9.)

As of July 2, 2019, Petitioner had a student identification card, a student email address “and a confirmed seat in the MBA.PM class.” (Pet. ¶ 10.)

On July 2, 2019, USC informed Petitioner it had conducted a special admissions review and revoked Petitioner’s “ ‘offer of admission.’ ” (Pet. ¶ 11.) USC advised Petitioner, as characterized by Petitioner, it took action because “Petitioner had engaged in First Amendment free speech that the USC representative found to be ‘racist.’ ” (Pet. ¶ 11.)

Petitioner alleges he is entitled to relief because USC violated its policies and procedures as specified in the Handbook. Petitioner contends USC did not have the authority to conduct a special admissions review here because “Petitioner was already enrolled . . . .” (Pet. ¶ 12.) Further, Petitioner alleges USC’s special admissions review did not comply with the Handbook because his free speech is not an academic or behavioral violation. (Pet. ¶ 12.) According to Petitioner, as an enrolled student, the allegations made against him required referral to SJACS with its related right for an administrative appeal. (Pet. ¶¶ 13, 14.)

Petitioner’s claims as alleged in his petition concern only USC’s failure to comply with the terms of its Handbook. That is, a claim USC failed to comply with its own rules and regulations when it purported to revoke Petitioner’s admission.

In his Opening Brief, Petitioner seeks relief pursuant Code of Civil Procedure section 1094.5. (Opening Brief 10:7-22.) Petitioner does so despite Petitioner having had “no hearing, no review, nothing. . . .” (Opening Brief 10:9.) As ultimately conceded by Petitioner in his Reply Brief, review here is by Code of Civil Procedure section 1085.[2] (Reply 8:19-9:3.) Code of Civil Procedure section 1094.5 does not apply under these circumstances because the court is not reviewing “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 . . . .” (Code Civ. Proc., § 1094.5, subd. (a).)

“may be issued by any court to any . . . board . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).)

Ordinary mandate under Code of Civil Procedure section 1085 is generally used to review an agency’s ministerial acts, quasi-legislative acts, and quasi-judicial decisions which do not meet the requirements for review under Code of Civil Procedure section 1094.5. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848; Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1264-1265.)

“To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty.” (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 103.)

“A ministerial duty is one that a public functionary is required to perform in a prescribed manner in obedience to the mandate of legal authority, without regard to his or her own judgment or opinion concerning the propriety of such act.” (Association of Deputy District Attorneys for Los Angeles County v. Gascon (2022) 79 Cal.App.5th 503, 528 [cleaned up].) “Mandate will not issue to compel action unless it is shown the duty to do the thing asked for is plain and unmixed with discretionary power or the exercise of judgment.” (Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center (2001) 93 Cal.App.4th 607, 618.) “Mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner.” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 177.)

Where an agency’s ministerial duty is in issue, the appropriate standard of judicial review is whether the agency's action was arbitrary, capricious, entirely lacking in evidentiary support, or whether the agency failed to follow the procedure required by law. (Citizens for Improved Sorrento Access, Inc. v. City of San Diego (2004) 118 Cal.App.4th 808, 814; Heist v. County of Colusa (1984) 163 Cal.App.3d 841, 846.)

Petitioner raises and argues many issues outside the scope of his petition. Instead of confining his arguments to how USC failed to comply with its Handbook and his entitlement to writ relief, Petitioner argues USC violated the Education Code, breached its contract with Petitioner, violated Petitioner’s constitutional rights, violated Petitioner’s rights under the Americans with Disabilities Act, violated title 29 U.S.C. section 794, violated the state’s Unruh Act and failed to provide Petitioner with protections under the Leonard Law. In addition, Petitioner asserts a “fair hearing” claim under Code of Civil Procedure section 1094.5.[3]

The court addresses the single claim raised in the petition—USC failed to comply with its rules and regulations as set forth in its Handbook. While the evidence before the court from Petitioner is limited, there is some evidence available to the court to evaluate Petitioner’s claim.[4]

USC’s Alleged Failure to Comply with the Handbook’s Rules and Regulations:

USC provides a procedure for taking adverse actions against both prospective and enrolled students.

“In cases where false and/or inaccurate information is believed to have been submitted by, or on behalf of, a prospective student prior to enrollment, if academic or behavioral violations occur, or if there is a failure to provide all requested information/documents, the Director of Admission will conduct a special admissions review.

This ad hoc review of the case may result in action(s) including a delay of enrollment or revocation of admission from the university. All pertinent documents will be reviewed and the prospective student may be asked to provide additional information regarding their application to the university.

A decision will be reached by the Director of Admission and communicated in writing to the prospective student. There is no appeal of a special admissions review.

Formal hearing procedures and protections cited in the Student Conduct Code do not apply to this review process. If the student is enrolled at the university when concerns about admissions violations arise, the case will be referred to the Office of Student Judicial Affairs and Community Standards for review.” (Pet., Ex. 1; Sañosa Decl., ¶ 6, Ex. 1, Section B.14; Opposition 9:12-18 [emphasis added].)

As USC’s policy makes clear, “If the student is enrolled at the university when concerns about admissions violations arise, the case will be referred to the Office of Student Judicial Affairs and Community Standards for review.” (Sañosa Decl., ¶ 6, Ex. 1, Section B.14; Op. Br. 9:12-18 [emphasis added].)

Resolution of the petition requires the court to address a single foundational issue: Was Petitioner a prospective student or an enrolled student for purposes of the Handbook?

Petitioner argues he had been accepted into the part-time MBA program, he submitted a non-refundable deposit to USC along with a Statement of Intent to enroll, obtained a USCard and loaded funds onto it and obtained a USC student identification card. (Pet. ¶¶ 7, 8, 9.) Petitioner also noted he signed USC’s 2019 Core Registration Authorization. (Pet. ¶ 9.)

USC contends the evidence before the court supports its finding Petitioner was merely a prospective student for whom, consistent with its Handbook, USC could conduct a special admissions review.

On April 24, 2019, USC provided Petitioner with a letter offering to admit Petitioner into USC’s part-time MBA program. (Dhupar Decl., Ex. 1 [Barron Depo., Ex. 5.) The letter states: “It is my distinct honor and pleasure to offer you admission to the Part-Time MBA Program . . . .” It advises: “In order to confirm your seat in the class, you must submit a non-refundable deposit in the amount of $2,500 by May 20, 2019.” (Ibid.) Finally, the letter notes: “For your planning purposes, please be aware that classes begin with two 3-day intensive sessions beginning on August 2^nd – August 4^th and August 16^th – August 18^th, 2019. All entering students must attend these sessions in their entirety in order to matriculate into this Program.” (Ibid. [Emphasis added.])

As noted by USC, the ordinary definition of “matriculate” is “to enroll in a college or university as a candidate for a degree.” (Webster’s Desk Dictionary of the English Language (1983) at p. 559.)[5]

USC’s April 24, 2019 letter advises enrollment (i.e., matriculation) is specifically conditioned upon attendance at two, three-day “intensive sessions.” (Dhupar Decl., Ex. 1 [Barron Depo., Ex. 5.) USC’s letter is clear no student could “matriculate”—that is, enrolled—unless and until he/she attended the identified intensive sessions. Thus, USC advised students offered admission into the part-time MBA program they would not be enrolled until August 18, 2019 after attending the two intensive three-day sessions in their entirety.

Petitioner admits he did not attend the three-day sessions. (Dhupar Decl., Ex. 1 [Barron Depo., p. 114:21-115:10.)

On April 28, 2019, USC sent Petitioner a notification by email entitled, “Your USC Intent to Enroll Confirmation.” (Dhupar Decl., Ex. 1 [Barron Depo., Ex. 6.) The notification advised Petitioner he was “officially certified as a graduate student who will enroll at [USC].” (Ibid.) The notification sent after USC’s April 24, 2019 letter (on which Petitioner relies to support his claim he was enrolled) indicates Petitioner was not yet enrolled but “will enroll” at some future date.

Petitioner’s response to USC’s claim enrollment (i.e. matriculation) could not occur until two three-day intensive sessions had been attended focuses on Petitioner’s subjective understanding:

“Of critical importance here is the fact that Mr. Barron’s subjective understanding of USC’s doublespeak, legalese regarding the distinction between ‘acceptance,’ ‘enrollment,’ and ‘matriculation,’ is legally irrelevant for purposes of this Writ. (See, generally, Opposing Brief at 7:14 – 8:9.) The bottom line is that Mr. Barron believed he was (because he is) entitled to an SJACS hearing and he has diligently, through counsel, pursued every avenue possible to achieve that end.” (Reply 8 fn. 1.)

Even assuming Petitioner’s subjective understanding is relevant to the issue,[6] Petitioner has submitted no evidence to support his claimed subjective understanding—he has simply submitted argument. The court reviewed Petitioner’s deposition transcript excerpts (submitted by USC) in an effort to determine whether any evidence relevant to Petitioner’s subjective understanding is before the court. While there is some testimony about what Petitioner understood the word “matriculate” to mean, the court notes Petitioner conceded that matriculate was “a synonym of ‘enrolled,’ I guess.”[7] (Dhupar Decl., Ex. 1 [Barron Depo., Ex. p. 14, deposition page 114:18-19.)

The court finds on the admissible evidence presented that USC properly treated Petitioner as a “prospective student.” USC did not violate the Handbook when it found Petitioner was not entitled to a referral to SJACS.

The Handbook provides grounds upon which a special admissions review may lead to revocation of admission prior to enrollment. At issue here is the Handbook’s requirement a special admissions review be conducted “if academic or behavioral violations occur, . . . .” (Pet., Ex. 1 p. 2.) Petitioner contends USC had no factual basis under the Handbook to conduct a special admissions review. The court disagrees.

Sometime after Petitioner received USC’s April 24, 2019 letter and before August 18, 2019 (the earliest date the court finds Petitioner could have completed the conditions for enrollment at USC in the part-time MBA program), Petitioner’s Facebook profile was “linked through the USC PM MBA [F]acebook group . . . .” (Prince Decl., Ex. A.) An anonymous tipster advised USC of the link and explained Petitioner’s Facebook profile was “fairly public” and “visible” and caught his/her “attention in a very negative way.” (Prince Decl., Ex. A.) The tipster wrote:

“Long story short, this individual has quite a post history that exhibits a high amount of disdain and makes numerous inflammatory remarks toward Asians and/or females. These are 2 demo groups that make up a noticeable portion of [USC’s] student body. . . . I do have concerns that bigoted view points like the ones being expressed by this individual runs the risk of creating awkward or even volatile situations that are not conducive to higher learning or needed at USC. At the very least, I do think that this one incoming student that should be scrutinized and observed closely moving forward.” (Prince Decl., Ex. A.)

Based on the anonymous tip, USC conducted an investigation. USC’s Associate Vice Provost of Threat Assessment and Management, Patrick Prince, reviewed Petitioner’s public Facebook posts. Prince characterized the posts reflecting Petitioner “engaging in conduct and a pattern of behavior that was very concerning . . . including actively harassing women in public, acting out toward ‘business women’ ‘during [his] rages[,]’ and wanting to see Asian women injured and/or institutionalized.” (Prince Decl., ¶ 9.) Sample posts from Petitioner’s Facebook page support Prince’s characterization.[8] (Prince Decl., Ex. B.) Prince concluded Petitioner “posed a serious risk to the safety of USC’s community.” (Prince Decl., ¶ 12.)

After conducting a special admissions review, USC’s Director of Admission advised Petitioner that Petitioner’s public Facebook page “includes a substantial number of posts concerning racial slurs and derogatory generalizations direct against people of Asian descent, particularly Asian women, which reflect a lack of commitment on your part to core principals of our academic community.” (Dhupar Decl., Ex. 1 [Barron Depo., Ex. 14.) The director recited portions of the Handbook indicating “[b]igotry will not go unchallenged within this community,” and “[a]s adults,” members of the USC community “take responsibility for [their] awareness of racism, sexism, ageism, xenophobia, homophobia, transphobia, ableism and other forms of discrimination.” (Dhupar Decl., Ex. 1 [Barron Depo., Ex. 14.) The director noted the USC Code of Ethics states USC “is committed to fostering an environment in which all persons are treated with respect and dignity, and in which ‘[w]e do not harass, mistreat, belittle, harm, or take unfair advantage of anyone.’ ” (Dhupar Decl., Ex. 1 [Barron Depo., Ex. 14.)

“Your racist public posts mentioned above contravene USC’s core values and ethical standards as well as our institution’s commitment to a welcoming, discrimination- and harassment-free environment for all community members, regardless of race, gender, or other protected characteristics . . . .” (Dhupar Decl., Ex. 1 [Barron Depo., Ex. 14.)

The court finds after his admission, but before his enrollment at USC, Petitioner, at the very least, permitted his Facebook posts to be publicly displayed and linked with USC’s part-time MBA Facebook group.[9] The posts conflict with USC’s “core institutional values” and intolerance against “verbal or written abuse, threats, harassment, intimidation, or violence against person or property.” (Dhupar Decl., Ex. 1 [Barron Depo., Ex. 14.) USC’s finding of a behavioral violation is not entirely lacking in evidentiary support.

The court cannot find on the evidence USC’s action was “arbitrary, capricious, entirely lacking in evidentiary support, or whether the agency failed to follow the procedure required by law.” (Citizens for Improved Sorrento Access, Inc. v. City of San Diego, supra, 118 Cal.App.4th at 814.) Therefore, Petitioner is not entitled to writ relief.

[1] The petition is verified. As Petitioner has submitted no additional admissible evidence for consideration, the court relies on the verified petition for evidence to the extent evidentiary facts have been alleged.

[2] The face of the petition indicates the petition has been brought pursuant to Code of Civil Procedure section 1085.

[3] Petitioner’s request the court find in his favor on these claims that exceed the scope of the petition based on USC’s failure to substantively address them is denied. (Reply 9:9-10.) Besides the claims exceeding the scope of the petition, they are all addressed in a largely conclusory and undeveloped manner.

[4] Petitioner’s verified petition attaches the relevant Handbook provisions to it. In addition, USC submitted evidence on the claims. Petitioner has also alleged several evidentiary facts. Therefore, USC’s request to summarily deny the petition is denied.

[5] USC reports “ [t]o ‘matriculate’ means to ‘enroll,’ as defined by Webster’s dictionary. [Merriam-Webster Dictionary Online, []www.merriam-webster.com/dictionary/matriculate (last visited November 9, 2022) (“matriculate: . . . to enroll as a member of a body and especially of a college or university”.)] (Opposition 7:10-13.)

[6] In fact, Petitioner concedes his subjective understanding is “legally irrelevant for purposes of this Writ.” (Reply 8 fn. 1.)

[7] The court acknowledges the statement is somewhat out of context. It appears there was some discussion (or disagreement) between Petitioner and USC’s counsel during the deposition of the meaning of matriculate. Nonetheless, there is no other evidence for the court to consider on the issue.

[8] The court acknowledges the Facebook posts are from 2017, 2018 and 2019. The most recent post (June 9, 2019) pre-dated USC’s April 24, 2019 letter by 10 months.

[9] Alternatively, Petitioner took no action to guard against public display of such posts on and after April 24, 2019.