Judge Mitchell L. Beckloff, Case 21STCP01434 2022-09-14 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP01434, Date: 2022-09-14 Tentative Ruling

Petitioners, Chad Ayach and Joseph Nofal, seek an order compelling Respondent, University of California, to set aside its decisions expelling both Petitioners as students and barring them as students at any University of California campus. The discipline resulted after an investigation into hazing activities by Phi Gamma Delta fraternity (Fraternity).

Both Petitioners were students at the University of California, Riverside. They both were members of Fraternity. Nofal served as President, and Ayach served as the “Disciplinarian.”[2]

In early 2019, the office for the Student Conduct and Academic Integrity Programs (SCAIP) looked into the health of a pledge class member of the Fraternity after receiving information from a university staff member. (AR 14.)

On March 21, 2019, the Vice Chancellor of Student Affairs issued a notice of interim suspension to the Fraternity. The notice advised the Fraternity and its members SCAIP would be conducting an investigation for violations of the university’s standards of conduct contained in the University of California’s Policies Applying to Campus Activities, Organizations and Students (PACAOS). (AR 12-13.) The notice also advised the Fraternity could not participate in any activities. (AR 12-13.)

On April 26, 2019, SCAIP notified the Fraternity and all its members it had “received a detailed description of the components of [the Fraternity’s] organization’s pledge process, including many activities appearing to meet [the university’s] definition of hazing.” (AR 10.) SCAIP advised the alleged hazing activities included kidnapping, tasing, sale of pledges at an auction, physical exercise, assignment of chores, exposure to the elements, heavy alcohol consumption and dishonesty. (AR 10.)

That same day, SCAIP also notified Ayach (AR 128) and Nofal (AR 293) it was investigating them personally for alleged hazing activities. SCAIP’s notice advised Ayach he had “been identified as the Disciplinarian of [the] organization for the Fall 2018 quarter” (AR 128) while Nofal had “been identified as the President of [the] organization at the time these [hazing] activities occurred.” (AR 293.)

Respondent conducted its administrative review of the allegations on May 7, May 17 and May 24, 2019. (AR 34-39 [Nofal], 96-104 [Nofal], 116 [Ayach incomplete].) The purpose of the administrative review “is to directly discuss the alleged violations.” (AR 30.) It appears (from materials provided to Ayach and Nofal) the SCAIP investigator interviewed four students and received written statements from two others. (AR 1, 166.)

After concluding the investigation, the SCAIP investigator provided case overviews. (AR 117-119 [Fraternity], 133-134 [Ayach], 300-301 [Nofal].) The case overviews set forth applicable policies violated by the Fraternity, Ayach and Nofal as well as a summary of evidence supporting the findings of violations. (AR 117-119.) Based on the findings, SCAIP referred the matter to the student conduct committee for review. (AR 125 [Ayach], 290 [Nofal].)

Respondent scheduled separate student conduct committee reviews for Ayach and Nofal. (AR 124 [Ayach], 289 [Nofal].)

The student conduct committee heard Ayach’s disciplinary matter on October 3, 2019. (AR 136.) Ayach participated in the proceeding. (AR 136-141.) The SCAIP investigator “present[ed] the information gathered by the University” regarding the case against Ayach. (AR 137.) “The committee review was lengthy . . . .” (AR 138.) Ayach spoke on his own behalf and answered questions posed by the committee. (AR 139.)

On November 6, 2019, the committee advised Ayach of its findings he violated three policies set forth in the PACAOS. (AR 136-137.) The committee sanctioned Ayach by immediately expelling him from the university. (AR 141.)

On December 16, 2019, Respondent denied Ayach’s appeal and upheld the student conduct committee’s decision to expel him. (AR 161-164.)

The student conduct committee heard Ayach’s disciplinary matter on September 10, 2019. (AR 303.) Ayach participated in the proceeding. (AR 305-307.) The SCAIP investigator “present[ed] the information gathered by the University” regarding the case against Nofal. (AR 304.) “The committee review was lengthy . . . .” (AR 305.) Ayach spoke on his own behalf and answered questions posed by the committee. (AR 306-307.)

On November 6, 2019, the committee advised Nofal of its findings he violated three policies set forth in the PACAOS. (AR 303-304.) The committee sanctioned Nofal by immediately expelling him from the university. (AR 308.)

On December 16, 2019, Respondent denied Ayach’s appeal and upheld the student conduct committee’s decision to expel him. (AR 329-332.)

Petitioners seek relief from the court pursuant Code of Civil Procedure section 1094.5. Ayach and Nofal contend Respondent denied them due process and a fair hearing in the disciplinary process. They do not mount a challenge to the factual findings made by the university.

The fair trial requirement “is equivalent to a prescription that there be a fair administrative hearing.” (Pomona College v. Superior Court (1997) 45 Cal.App.4th 1716, 1730.) “Issues related to bias of the hearing officer or agency, the admission or exclusion of witnesses and evidence, and hearing procedures have all given rise to fair trial claims.” (CEB, Cal. Administrative Mandamus (3^rd ed. 2018) § 6.35 p. 6-30.)

On the issue of a fair administrative hearing, a petitioner is entitled to an independent judicial determination. (Sinaiko v. Superior Court (2004) 122 Cal.App.4th 1133, 1141; Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) Therefore, the court independently reviews the fairness of the administrative proceedings as a question of law. (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1438.)

Finally, Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) This presumption of correctness includes giving great weight to the agency’s credibility determinations even where the standard of review is independent judgment. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 819.)

An administrative decision rendered without a “fair trial” must be set aside. (Alpha Nu Assn. of Theta Xi v. University of Southern California (2021) 62 Cal.App.5th 383, 417 [Alpha Nu]; Code Civ. Proc. § 1094.5, subd. (b).) A fair trial in the context of administrative mandamus means a fair administrative hearing. (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1059.)

“Disciplinary hearings ‘need not include all the safeguards and formalities of a criminal trial.’ ” (Id. at 1062.) “ ‘[T]he essence of both [the common law and due process] rights is the fairness of the decision-making process, including adequate notice, a reasonable opportunity to respond, and a fair, unbiased decision-maker.’ [Citation.]” (Alpha Nu, supra, 62 Cal.App.5th at 383.) “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections.’ ” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.)

Ayach and Nofal challenge the fairness of Respondent’s disciplinary proceedings on three grounds:

In addition, Ayach contends “although [he] was permitted to have assistance of counsel at his expulsion hearing, his attorney was not permitted to ask questions or otherwise speak.” (Opening Brief 2:26-28.)

Citing Doe v. Allee, supra, 30 Cal. App.5th 1036 and Doe v. Regents of University of California (2018) 28 Cal. App.5th 44, Petitioners argue Respondent violated their fair trial rights by using pseudonyms in the investigative materials used to support the student conduct committee’s findings. (Opening Brief 5:17-19.) While Respondent provided Petitioners with the

investigative report in advance of their disciplinary hearing, they contend the witnesses were “kept secret” through the use of pseudonyms which prevented them from “conducting any meaningful investigation . . . .” (AR 2:15.)

Petitioners submit their own (nearly identical) declarations attesting they did not know the names of witnesses. (Ayach Decl., ¶¶ 2-9; Norfal Decl., ¶¶ 2-8.) Those declarations state:

“The documents that were given to [me] did not have the names of any of these witnesses. Names were redacted and people were identified as ‘Student A,’ ‘Student B,’ etc. I had no way of knowing who these people were. ¶ I was kept in the dark concerning the name[s] of these witnesses all the way up to my expulsion hearing and I was still not given any names.” (Ayach Decl., ¶¶ 3, 4; Norfal Decl., ¶¶ 4, 5.)

“The pre-hearing notice letters described the SCAIP investigation in detail, and the respective hearing packets included reference to the Master Pack for the FIGI investigation. That Master Pack included statements and notes of testimony for several notable fraternity members. The identities of these other fraternity members were well known to Petitioner, so it is not credible for Petitioner’s to argue that the witnesses against them were kept ‘secret.’ ” (Opposition 12:12-18.)

The record supports Petitioners’ statements—Respondent did not provide the names of witnesses who provided information adverse to Petitioners during the investigation. (See e.g., AR 16, 18-20, 181-182, 186-194.) Respondent assigned pseudonyms—Student A, Student C—to each witness. The SCAIP investigator “interviewed approximately thirty people as part of [the] investigation.” (AR 158.)

Nonetheless, the court notes Petitioners have not cited any evidence in the administrative record to suggest they requested that they be provided with the names of witnesses after SCAIP referred the matter for a disciplinary hearing. Thus, there is no evidence Respondent hindered any “meaningful investigation” by Petitioners in advance of the student conduct committee hearing. The appeal officers noted Petitioners had the investigative materials prior to the hearing. (AR 163, 332.)

SCAIP’s letter referring the disciplinary matters to the student conduct committee provided contact information for “additional information” or “concerns” regarding the student conduct committee hearing. (AR 127, 294.) The declarations submitted by Ayach and Nofal do not suggest either contacted SCAIP to attempt to obtain additional information about the witnesses. The investigator’s letter to the appeal officer also does not suggest either Petitioner contacted her for more information. (AR 158, 327.) Ayach’s appeal does not suggest he made any efforts to obtain witness identities prior to the student conduct committee hearing. (AR 149.) The same is true for Nofal.[3] (AR 314.) That the investigation materials used pseudonyms for witnesses standing alone does not establish Respondent deprived Petitioners of access to the evidence or hindered Petitioners’ efforts to defend against the allegations. In fact, the evidence suggests Respondent would have provided witness names to Petitioners had they inquired. (AR 163.)

In addition, there is some evidence in the administrative record Petitioners had sufficient contextual information to identify at least some witnesses despite the use of pseudonyms.[4] In fact, during Nofal’s interview with the investigator, when asked about certain witness statements, Nofal responded as if he knew who made the statements. (See e.g., AR 35 [“I know Student A, I want to discredit all of his statements, he thought he was a Navy Seal . . . .”]; See generally AR 34-39, 96-101.) Ayach’s responses were similar. (AR 116 [Student T, Student S].)

The generalized declarations of Ayach and Nofal do not establish Respondent deprived them of a fair hearing by using pseudonyms for witnesses in its investigation materials. The nearly identical declarations lack any detail to support a fair hearing claim. For example, Petitioners do not reveal any effort to learn the identity of the unidentified witnesses or suggest Respondent refused to provide them with the information. Petitioners also do not indicate (with any detail whatsoever) how Respondent impeded their efforts to mount a defense because Respondent identified witnesses with pseudonyms.

Accordingly, the court finds Petitioners have not met their burden of demonstrating an unfair hearing on the grounds Respondent withheld evidence from them and prejudiced their defense. (See Doe v. Occidental College (2019) 37 Cal.App.5th 1003, 1017. [“Therefore, even if the investigative report he received only contained witnesses' initials, Doe failed to demonstrate prejudice. Doe knew the names of all of the witnesses.”])

Petitioners contend they were denied a fair hearing because no witnesses testified thereby depriving them of the right to confront and cross-examine witnesses.

“[T]o comport with due process,” the university's procedures must “ ‘be tailored, in light of the decision to be made, to “the capacities and circumstances of those who are to be heard,” [citation] . . . to insure that they are given a meaningful opportunity to present their case.’ ” (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1078.)

“[A]n accused student has an interest to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. . . . Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process. On the other hand, a formalized hearing process would divert both resources and attention from a university's main calling, that is education. Although a university must treat students fairly, it is not required to convert its classrooms into courtrooms.” (Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1066 [cleaned up].)

“The opportunity for a prompt and fair hearing where the University shall bear the burden of proof, and at which the student shall have the opportunity to present documents and witnesses and to confront and cross-examine witnesses presented by the University; no inference shall be drawn from the silence of the accused . . . .” (AR 162.)

Respondents did not call any witnesses to testify at the student conduct committee hearing. As a result, there was no cross examination to be conducted.[5] Ayach and Nofal therefore contend they were deprived of the right to confront adverse witnesses. (Opening Brief 6:4-8.) Their claim also relates to Respondent’s failure to provide them with the identities of witnesses.

As noted section 103.11.b of the PACAOS permitted Ayach and Nofal to “present documents and witnesses . . . .” (AR 162.) Nothing precluded Ayach and Nofal from calling witnesses and presenting documents on their behalf. Ayach and Nofal “had an equal opportunity to engage with [the investigative] material” prior to the hearing. (AR 163.) Nothing suggests Ayach or Nofal attempted to call witnesses or request their identities prior to the hearing.[6] In fact, as noted earlier, Respondent noted its rules requiring that identities of witnesses be protected did “not equate to their identities remaining hidden or being withheld from” Ayach and Nofal, the subject of the investigation. (AR 163.)

Petitioners’ reliance on Boermeester v. Carry (2020) 49 Cal.App.5th 682 (review granted and ordered not to be published Sept. 16, 2020, S263180), Doe v. Allee, supra, 30 Cal.App.5th at 1036, Doe v. Westmont College (2019) 34 Cal.App.5th 622 and Education Code sections 66262.5 and 66281.8 (Assembly Bill 493) is unavailing. Those cases and statutes all address fair hearing standards in student sexual assault cases under Title IX “where the case often depends on the credibility of the only two people involved . . . .” (Alpha Nu, supra, 62 Cal.App.5th at 422.) Given that the SCAIP investigator interviewed nearly 30 witnesses, “the hazing case here had numerous potential witnesses.” (Ibid.) (AR 158.) The evidence here did not boil down to “competing narratives.” (Opening Brief 5:26.)

The court notes Ayach and Nofal were fully advised of the evidence that would be offered against them at the time of the student conduct committee hearing. Thus, the evidence SCAIP intended to present to the committee could be no surprise. Nonetheless, neither Ayach nor Nofal offered any defense other than their own explanations. Given the number of students in the Fraternity who were likely percipient witnesses to Petitioners’ behavior and the access Petitioners had to the evidence against them, nothing prevented Ayach or Nofal from meaningfully mounting a defense to the charges. (See Doe v. Allee, supra, 30 Cal.App.5th at 1062.) That they could not cross-examine witnesses discussed by the SCAIP investigator in this context did not deprive them of a fair hearing.

The court finds Petitioners failed to carry their burden of demonstrating they were denied a fair trial because Respondent did not call any witnesses to testify.

Ayach acknowledges he had counsel with him at the student conduct committee hearing. He claims, however, Respondent denied him a fair hearing because “his attorney was not permitted to ask questions or otherwise speak.” (Opening Brief 2:26-28.) His argument includes neither legal authority nor citations to the administrative record. He does not raise the issue in his reply papers. (Ayach also does not address the issue in his declaration.)

As Ayach’s argument is completely undeveloped, the court finds he has waived the claim. The court notes in the context of student discipline, a student has no right to have counsel actively participate at a hearing. (Doe v. Regents of University of California, supra, 5 Cal.App.5th at 1082-1083.)

Accordingly, the court finds Ayach has not demonstrated Respondent erred by precluding his attorney from participating at the student conduct committee hearing.

[1] The parties largely failed to cite to the administrative record. The facts concerning the underlying administrative process are scant. The parties also provide no index to the administrative record. The administrative record is broken into two parts. AR 1-165 purportedly is applicable to Ayach while AR 166-334 is applicable to Nofal.

[2] The Disciplinarian “is not an official role within the organization . . . .” (AR 117.)

[3] Nothing suggests Ayach or Nofal attempted to call witnesses or request their identities prior to the hearing. In fact, Respondent noted its rules requiring that identities of witnesses be protected did “not equate to their identities remaining hidden or being withheld from” Ayach and Nofal, the subject of the investigation. (AR 163.)

[4] This is consistent with Respondent’s unsupported argument Petitioners knew the identity of the witnesses from the Fraternity.

[5] The formal rules of evidence do not apply in student discipline matters, and there is no prohibition against the use of hearsay. (See Doe v. Allee, supra, 30 Cal.App.5th at 1062 [cases cited therein].)

[6] As noted earlier, SCAIP’s letter referring the disciplinary matters to the student conduct committee provided contact information for “additional information” or “concerns” regarding the student conduct committee hearing. (AR 127, 294.) The declarations submitted by Ayach and Nofal do not suggest either contacted SCAIP for additional information about the witnesses. The investigator’s letter to the appeal officer does not suggest either Petitioner contacted her for more information. (AR 158, 327.) Ayach’s appeal does not suggest he made any efforts to obtain witness identities prior to the student conduct committee hearing. (AR 149.) The same is true for Nofal. (AR 314.)