Judge Mitchell L. Beckloff, Case Number: 22STCP03877, Date: 2023-08-30 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP03877, Date: 2023-08-30 Tentative Ruling

Petitioner, Jane Doe, seeks a writ of administrative mandate directing Respondent, University of Southern California (Respondent or USC), to set aside its administrative decision dismissing her as a student from the Keck School of Medicine (Keck). (Opening Brief 19:27-28.)[1]

Bryce Madgelyn Meck, M.D.’s application for leave to file an amicus brief is denied. Respondent’s objections are sustained. Even assuming the court has discretion to permit an amicus brief to be filed and considered in connection with a petition for administrative mandate, Dr. Meck offers an expert opinion—an opinion not considered by USC during the administrative proceedings. To allow consideration of Dr. Meck’s expert opinion is to effectively augment the administrative record without adhering to applicable law. (Code Civ. Proc.,

§ 1094.5, subd. (e).)[2] The court finds Dr. Meck’s expert opinion is irrelevant because it was not considered by Respondent.

Respondent’s objections to the administrative record at pages 648-650 are overruled. (See Opposition 11:23-12:19.) Page 648 is a one-page document from Respondent’s website related to USC’s Office of Student Accessibility (OSAS) referenced by Petitioner in her administrative appeals (and incorporated by hyperlink). (AR 139, 444, 487.) Page 649-650 sets out the Keck School of Medicine MD Student Official Correspondence Policy. Petitioner referenced the policy in her administrative appeals. Th policy is hyperlinked in the Keck student handbook, part of the administrative record. (AR 36; see Hathaway Decl. ¶¶ 7-10.) Accordingly, the court finds AR 648-650 are written evidence submitted in the administrative proceedings and therefore properly part of the administrative record. (Code Civ. Proc., § 1094.6, subd. (c); Los Angeles County Court Rules, Rule 3.231, subd. (g).)

Respondent’s objections to pages 651-654 to the administrative record are sustained. (See Opposition 11:23-12:19.) Petitioner’s counsel has not demonstrated the relevance of the records—that is, it does not appear the records were submitted as evidence during the administrative proceedings or incorporated by reference in any document considered by Respondent in the administrative proceedings. (Hathaway Decl. ¶¶ 11-12.) Accordingly, the court finds AR 651-654 are not properly included in the administrative record.[3]

Petitioner was a class of 2023 medical student at Keck. Prior to the disciplinary proceedings at issue, Petitioner was on track to complete the academic and clinical requirements to graduate.[4] (See e.g. AR 198, 411-412.)

Petitioner previously attended USC as an undergraduate from August 2010 to May 2014. During her undergraduate years, Petitioner received accommodations for attention deficit hyperactivity disorder and type 1 diabetes through USC’s OSAS. (AR 486.)

In April 2020, after Petitioner started attending Keck, she again registered with OSAS based on the same medical conditions. (AR 486.)

Keck students subscribe to Keck’s Code of Professional Behavior (Code) “in order that [students’] activities reflect the high standards of moral character demanded by the medical profession.” (AR 1.) Among other things, the Code requires Keck students to conduct themselves “with the highest degree of integrity and honesty.” (AR 1.) The Code also requires Keck students to “hold [themselves] accountable to local, state and national laws relevant to learning and healthcare environments and to the policies and procedures of the school and its associated clinical sites.” (AR 2.) In addition, Keck students are “expected to respond to all emails, calls, and other communications from the Keck School of Medicine in a timely and appropriate manner.” (AR 4.)

The Code provides: “If a violation of the Code occurs, the Associate Dean for Student Affairs will be informed. Individuals who have had difficulty adhering to this policy may be referred to the Student Performance Committee. If violations persist, the student may be subject to probation, suspension or dismissal.” (AR 5.) Keck’s dismissal policy also advises students can be dismissed for violations of the Code. (AR 6.)

Student professional conduct is monitored and addressed by USC’s Student Performance Committee (SPC). The SPC is responsible for evaluating student professional conduct, determining eligibility for graduation, and making dismissal decisions. (AR 99-100.)

On May 17, 2021, Petitioner undertook a UWorld sponsored full-length practice examination in preparation for the United States Medical Licensing Examination (USMLE) Step 1. [5] According to Petitioner,[6] she discovered the settings for the UWorld account were restricted and did not reflect her correct accommodations for her medical conditions. (AR 485.) The “correct accommodation timing . . . could only be authorized by USC staff . . . .” (AR 485.) After learning of the issue with the UWorld account, Petitioner sent the following email to USC staff Student Programs Advisor, Ms. Olivia Ann Roussell, and Associate Director of Academic Support Services, Nadia Sellami, Ph.D.—the authorized individuals to adjust Petitioner’s timing accommodation:

I just got off the phone with UWorld and learned that I need you to update my account to have it reflect the timing that I was approved for by NBME (1.5x). I am unable to take my assessment today because my account is inaccurate.

Additionally, I would like to request that in the future, Keck purchase step 1 UWorld subscriptions that do not give the institution authority over all student accounts, and instead allow each student to be their own account administrator. It is disruptive to have to correspond with UWorld to make changes to timed modes, only to learn that we don't have any authority over our accounts because of the arrangements Keck made with their group subscriptions.

Please let me know when my account is updated. I have been on the phone and email with UWorld since 9am when I was trying to take this exam and simulate a real test day.

The following day, on May 18, 2021, Dr. Ranna Nash[7] responded to Petitioner’s email. Dr. Nash advised Petitioner her demand was inappropriate. She also admonished Petitioner: “Again- I understand the stress that you have while in studying for Step 1 and we are here to support you but would appreciate a more respectful email in the future. . . .” (AR 310.)

On July 9, 2021, SPC notified Petitioner it “would like to meet with [her] to discuss [her] professionalism related to communication at its meeting [on] July 14, 2021.” (AR 104.)

After a meeting with Petitioner “to discuss [her] professionalism related to communication,” SPC placed Petitioner “ ‘at risk’ for professional probation.” (AR 105.) SPC advised Petitioner that her “professional behavior will continue to be monitored.” (AR 105.) SPC also assigned a “faculty mentor” to Petitioner to “strengthen [her] professional development.” (AR 105, 485.)[8]

In August and September 2021, after SPC placed Petitioner “ ‘at risk’ for professionalism probation,” Petitioner engaged in a series of communications with Keck staff concerning accommodations for her obstetrics and gynecology (OB/gyn) clerkship. (AR 313-318.)

On September 29, 2021, SPC notified Petitioner it “would like to meet with [her] to discuss [her] communications related to site preferences for the Obstetrics and Gynecology clerkship at its meeting on . . . October 13, 2021, . . . .” (AR 106.)

Two days prior to her scheduled meeting with SPC, Petitioner submitted a two-page response to SPC “to response to the committee’s concern that [she] broke protocol by asking clinical faculty for disability accommodations and not going directly through Student Affairs.” (AR 119.)

After Petitioner’s meeting with SPC, SPC placed her on “Professional Behavior Probation (2021-2022 Student Handbook, page 46).” (AR 107.) SPC advised Petitioner she failed to follow protocol “for requesting accommodations . . . .” (AR 107.)

Petitioner appealed SPC’s decision to Dr. Donna D. Elliott, M.D., Vice Dean for Medical Education. Petitioner argued the sanctions imposed were disproportionate to the violation found by SPC. In her appeal, Petitioner discussed the relevant communications about the accommodations at length. (AR 122-130.)

Dr. Elliott granted Petitioner’s appeal, in part, finding the sanctions imposed by SPC “would be grossly disproportionate to the violation found” if Petitioner had merely failed to follow protocol in connection with requesting accommodations. (AR 108.) Dr. Elliot noted, however, she found “potential discrepancies in the information [Petitioner] share with [Keck] faculty.” (AR 108.) After identifying the potential discrepancies in the letter, Dr. Elliott referred the matter back to SPC to reconsider whether Petitioner adhered to the Code with Keck officials. (AR 108-109.)

Pursuant to Dr. Elliot’s instruction, SPC held a second meeting with Petitioner on January 14, 2022. On week prior to the meeting, Petitioner submitted a two-page letter for consideration by SPC. (AR 110, 133-136.) SPC distributed Petitioner’s letter for consideration by all SPC members, reconsidered the matter and ultimately decided to place Petitioner on “Professional Behavior Probation (2021-2022 Student Handbook, page 46).” (AR 112.)

In SPC’s February 11, 2022 decision letter, SPC explained the factual basis for its decision at some length. (AR 111-112.) SPC cautioned Petitioner “any additional evidence of a lack of professional behavior on [her] part may result in the [SPC] convening to consider [her] for dismissal” from Keck. (AR 112.)

Petitioner appealed SPC’s February 11, 2022 decision to Dr. Elliott. (AR 137-147.) Dr. Elliott denied Petitioner’s appeal. (AR 113-115.)

On September 22, 2022, the last week of her LAC+USC Medical Center psychiatric emergency rotation, Petitioner misplaced her medical student hospital identification badge. (AR 488.) As a temporary measure, Petitioner used a printed copy of her badge to access and move throughout LAC+USC Medical Center. (AR 488-489, 256-257.)[9] Petitioner acknowledged in the administrative proceedings that she printed a copy of her “previous blue badge” and “not the new green version.” (AR 405.)

Los Angeles County’s Department of Health Services (County) has a policy concerning identification badges applicable to the LAC+USC Medical Center. The policy provides in relevant part:

It is the responsibility of personnel issued identification badges to wear them in a prominently displayed position at all times while on County premises. Identification badges are to be reissued biennially (every two years) and color coded for easy identification. . . .

Personnel failing to display identification badges shall identify themselves upon request to any employee.

It is the individual's responsibility to report any lost or stolen identification badge within five business days to the law enforcement agency having jurisdiction where the loss or theft occurred.

Each individual must sign an affidavit attesting to the fact that the identification badge was lost or stolen.

A copy of the affidavit along with the copy of the police report will be filed in the individual's official personnel/agency file.

On October 4, 2022, SPC notified Petitioner it “would like to meet with [her] to discuss [her] use of a fraudulent badge at the LAC+USC Medical Center . . . .” (AR 116.) In advance of her meeting with SPC, Petitioner submitted a three-page written statement explaining her conduct related to the badge. (AR 405-407.)

On October 19, 2022, after meeting with Petitioner and considering her written statement, SPC informed Petitioner that they had decided to consider her for dismissal from Keck based on her continued lack of professional behavior. (AR 408.) SPC informed Petitioner that her recent conduct violated the Keck Code of Professional Behavior, including the tenets that “[w]e will conduct ourselves with the highest degree of integrity and honesty” and “[w]e hold ourselves accountable . . . to the policies and procedures of the school and its associated clinical sites.” (AR 408.)

On October 26, 2022, Petitioner filed her original petition for writ of mandate. Respondent answered. The original petition challenged Respondent’s decision to place Petitioner on professional behavior probation.

On February 14, 2023, 10 days in advance of the hearing, Respondent (Student Affairs) provided Petitioner with the relevant policies and a two-page timeline with information Keck received regarding Petitioner’s use of a printed copy of her expired identification badge. (AR 228-257.) On February 21, 2023, after meeting with Petitioner to discuss the procedures for the dismissal hearing, Respondent (Student Affairs) sent Petitioner documents related to SPC’s prior decision to place her “ ‘at risk’ for professional probation” as well as SPC’s decision to place her on “Professional Behavior Probation.” (AR 294-318.)

On February 22, 2023, Petitioner submitted a statement for consideration by SPC at its dismissal hearing. (AR 321-336.)

On February 23 and 24, 2023, Petitioner requested the entire “84-page document” that had been provided to SPC for its dismissal hearing on February 24. (AR 344, 348.) On February 24, 2023, at 12:03 pm, Respondent (Student Affairs) emailed Petitioner “the documents that were sent to the Committee.” (AR 349.)

SPC conducted its dismissal hearing on the afternoon of February 24, 2023. There is no transcript of the SPC hearing in the administrative record. Initially, SPC met without Petitioner present to consider questions to ask of Petitioner. After SPC’s initial discussions, SPC invited Petitioner into the hearing to respond to questions and make a statement. Other than Petitioner, there were no witnesses who spoke at SPC’s dismissal hearing. (AR 341, 475-478.)

On March 1, 2023, SPC advised Petitioner of its decision Petitioner should be dismissed from Keck for her failure to adhere to the Code. SPC’s March 1, 2023 letter discusses, at some length, the rationale for SPC’s dismissal decision. SPC noted a “repeated pattern of unprofessional behavior” beginning with Petitioner’s May 17, 2021 email concerning the UWorld practice examination, continuing through Petitioner’s August through September 2021 communications concerning her OB/Gyn clerkship, and then the September 2022 badge incident. (AR 475-478.) SPC’s decision relied, in substantial part, on Petitioner’s written statements to SPC as well as her oral response to questioning at the dismissal hearing.

Petitioner appealed SPC’s dismissal decision to Dr. Elliott. (AR 470-474.) Dr. Elliott denied the appeal. (AR 481-483.) Petitioner then appealed the dismissal decision to Keck’s Dean, Dr. Carolyn C. Meltzer. (AR 484-639.) Dr. Meltzer denied the appeal finding Petitioner’s use of a paper badge and her subsequent misrepresentations to security, standing alone, constituted sufficient grounds to dismiss Petitioner from Keck. (AR 646-647.)

On March 9, 2023, after a hearing that included opposition from Respondent, the court granted Petitioner’s ex parte application for a stay of Respondent’s dismissal decision. The court conditioned the stay as follows:

To be clear, the court stay order affects Petitioner’s ability to complete her course of study and clinical rotations only. It does not require Respondent to issue Petitioner a medical doctor degree, deem Petitioner to have graduated from medical school or allow Petitioner to represent she has graduated from medical school when she has not. The court’s order is intended to allow Petitioner to complete her course work in her final semester of medical school—the position she was in before Respondent imposed its discipline. (Minute Order dated 3-9-23 at 2-3.)

On June 22, 2023, Petitioner her FAP. Respondent answered. The parties thereafter briefed the matter for trial.

On August 22, 2023, Dr. Meck filed an application for leave to file amicus brief. Respondent timely objected to the request.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

It is well established that student misconduct proceedings at public and private universities do not involve a fundamental vested right, and the substantial evidence standard applies with judicial review of factual findings from university administrative hearings. (See e.g. Doe v. Occidental College (2019) 40 Cal.App.5th 208, 220-221; Doe v. Allee (2019) 30 Cal.App.5th 1036, 1060; Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 238, 239, 248-249; Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1073-1074; see also Gurfinkel v. Los Angeles Community College Dist. (1981) 121 Cal.App.3d 1, 6 [no fundamental right to a public college education].) Although this matter does not concern sexual harassment or misconduct, it involves alleged violations of the Code. Thus, it is similar to other university misconduct cases. This court is bound by those decisions under principles of stare decisis.

Substantial evidence is relevant evidence a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.) “Courts may reverse an [administrative] decision only if, based on the evidence . . ., a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

“[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.) Petitioner bears the burden of demonstrating, by citation to the administrative record, substantial evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.) When a petitioner challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [her] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“ ‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ . . . Interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner contends—in a brief argument—the administrative proceedings were unfair. (Opening Brief 16:16-17:3.) As the argument is brief, for completeness, the court quotes Petitioner’s fair hearing argument in full:

Jane Doe was facing the severe sanction of dismissal from medical school after she qualified academically and clinically for her medical degree and had incurred almost $1 Million in tuition, costs, and lost income, and was entitled to due process and a fair, live hearing. [Citations.] USC Student Affairs’ conduct of the SPC disciplinary actions against Jane Doe lacks the essential elements of due process required under the circumstances and deprived Jane Doe of a meaningful opportunity to present a full defense.

The various notice letters for Jane Doe to meet with SPC described the purpose of the meetings only in the most general terms without setting forth the alleged conduct that violated any specific [Keck] policy or code. Student Affairs did not provide Jane Doe any of the evidence that had been presented to SPC in 2021 and 2022 until February 14, 2023. (AR 302.) Student Affairs denied Jane Doe any opportunity to confront witnesses against her, did not allow her to hear the presentation of Student Affairs’ case against her at any SPC meeting or hearing, and denied Jane Doe any reasonable opportunity to respond to the charges and allegations in a meaningful way. SPC made decisions against Jane Doe based on evidence, witnesses, and argument that were never shared with Jane Doe. (Opening Brief 16:16-17:3.)

“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.) “A university is bound by its own policies and procedures.” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1078.) As a general rule, the accused “must be permitted to see the evidence against him.” (Doe v. Regents of University of California (2018) 28 Cal.App.5th 44, 57.)

On July 31, 2023, after the parties filed their opening and opposition briefs, the Supreme Court issued its decision in Boermeester v. Carry (2023) ___ Cal.5th ____, 532 P.3d 1084 [Boermeester].[10] In Boermeester, the high court explained:

The principles of common law fair procedure are similar to those of constitutional due process in that they are flexible and context specific. Under either concept, the precise procedures necessary to provide a complainant with a meaningful opportunity to be heard “depend[ ] largely on the nature of the tendered issue.” [Citations.] This is not to say that fair procedure and due process are identical. Due process is a constitutional right designed to protect citizens from abuses of state power, and it does not apply here since no state action is involved. Fair procedure, on the other hand, is a more flexible judicially created concept applicable to private organizations in limited situations. [Citations.] Because this matter involves a private university, no constitutional rights are at stake and a greater degree of flexibility is warranted. (Boermeester, supra, 532 P.3d at 1093.)

Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard before impartial judges.” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)

Petitioner apparently contends she did not receive sufficient notice (that is, sufficiently detailed notice) of the allegations against her before SPC’s meetings of July 14, 2021, October 13, 2021, January 14, 2022, October 12, 2022 and February 24, 2023. (Opening Brief 16:24-25; Reply 11:27-12:5.) Petitioner argues the notice provided was “in the most general terms without setting forth the alleged conduct that violated any specific [Keck] policy or code.” (Opening Brief 16:25-26.)

As a preliminary manner, Respondent’s SPC procedures generally do not require any prehearing notices and/or opportunity to review evidence. (AR 99-103.) Dismissal procedures, however, require a student be given a written statement she is being considered for dismissal at least 10 business days before the SPC dismissal meeting. (AR 6-7.) Keck’s dismissal procedures also states “the student will be provided information relevant to the proposed dismissal upon request including student records, and other documentation used in arriving at the decision.” (AR 7.)[11] In addition to Keck’s own procedures, common law fair procedure rules--briefly summarized above—are relevant to Petitioner’s claim Respondent deprived her of a fair trial.

In its July 9, 2021 letter, SPC advised Petitioner it wished to meet with her to discuss her “professionalism related to communication.” (AR 299.) Petitioner asserts she was “given no documents prior to the hearing.” (Opening Brief 6:22-24 [citing AR 105].) Petitioner’s record citation does not support that assertion. (AR 105.) The record contains several emails between Petitioner and Dr. Raquel Arias suggesting Petitioner was informed, prior to the July 14 meeting, the SPC would discuss Petitioner’s written communications “with the KLASS team.” (AR 311-312.) More specifically, Dr. Arias advised: “You have been asked to appear for conduct related to your interactions with faculty and staff who are here to help you, including the KLASS team. Additionally, they will want to hear about your ‘out of office email’ that was associated with a delay in your response to the Student Affairs office.” (AR 312.) Dr. Arias also told Petitioner: “As you have access to your written communications with the KLASS team (and any other communication with faculty or staff), you have the content to be shared with the committee.” (AR 312.) Finally, as noted earlier, Dr. Nash informed Petitioner the day after Petitioner sent her email to Olivia Ann Roussell and Dr. Sellami that Petitioner’s email was “inappropriate” and that she should be more respectful with her email communications in the future. (AR 310.)

Petitioner has not shown with citations to the administrative record citation she lacked sufficient notice (i.e., sufficiently detailed notice) of the communications at issue for SPC’s July 14, 2021 meeting. Further, SPC did not place Petitioner on probation after its July 14, 2021 meeting with her—she was merely deemed “ ‘at risk’ for professional probation.” (AR 105.) Petitioner received additional notices and had additional meetings with SPC before being placed on probation and later dismissed.

After SPC initially placed Petitioner on “Professional Behavior Probation,” Petitioner successfully appealed the decision. Dr. Elliot ordered SPC to reconsider its decision. Given that Petitioner had previously participated in the October 13, 2021 meeting, Petitioner knew SPC’s concerns.[12] Further, Dr. Elliot’s instruction to SPC to reconsider Petitioner’s disciplinary matter specifically identified concerns she had about possible inconsistencies in Petitioner’s statements. Dr. Elliott explained in detail why she was “referring this matter back to the SPC to reconsider whether [Petitioner] adhered to the [Keck] Code of Professional Behavior in [her] communications with Keck officials.” (AR 303-304.) Dr. Elliott wrote to Petitioner:

Specifically, in an email to Caitlin Mahaffey and Estella Peneyra-Turla on August 24, 2021, you indicated that the Office for Student Accessibility Services (OSAS, formerly known as Disability Services and Programs or DSP) recommended that you reach out to whoever makes rotation schedules within Keck to try to work informally on your rotation accommodations. In a subsequent email on August 26, 2021 to Dr. Stephanie Zia, you again indicated that OSAS instructed you to work with KSOM informally on the process of site selections. Additionally, in an email to the Ob/Gyn clerkship on September 20, 2021 you indicated that OSAS recommended that you reach out to the team responsible for creating student schedules and work with them to form a schedule that meets your health needs.

However, OSAS's records indicate that your approved accommodations as of those dates were restricted to examination accommodations and that you did not discuss accommodations for clinical rotations with OSAS until a Zoom meeting with Assistant Director Kim Nguyen on September 22, 2021 (despite efforts by OSAS to contact you to discuss accommodations for clinical rotations). I also understand from Ms. Nguyen that OSAS's practice is for students to work through their OSAS specialist in implementing accommodations, and that their office would not typically advise a student to work directly on accommodations with the team responsible for rotation schedules. Based on this, I am concerned that the information you shared by email with Dr. Zia, Ms. Mahaffey, Ms. Peneyra-Turla, and the Ob/Gyn clerkship MSE and director was not accurate. (AR 303-304.)

Petitioner has not argued SPC’s January 14, 2022 meeting or SPC’s subsequent probation decision materially deviated from the detailed notice given by Dr. Elliott in her November 18, 2021 letter referring the matter back to SPC for reconsideration. (See e.g., AR 111-112 [SPC probation decision].) Accordingly, Petitioner received adequate and sufficiently detailed notice of the allegations at issue for SPC’s reconsideration meeting on January 14, 2022.

SPC’s October 4, 2022 letter notified Petitioner it “would like to meet with [her] to discuss [her] use of a fraudulent badge at the LAC+USC Medical Center . . . .” (AR 116, 308.)

After SPC’s October 12, 2022 meeting, SPC wrote to Petitioner on October 19, 2022:

The Student Performance Committee met with you on Wednesday, October 12, 2022, to discuss your use of a paper copy of your County badge to enter and move throughout the LAC+USC Medical Center. . . .

After discussion and due deliberation, the Committee decided to consider you for dismissal from the Keck School of Medicine at its next meeting for your continued lack of professional behavior; most recently, your violations of the Code of Professional Behavior, including but not limited to "[w]e will conduct ourselves with the highest degree of integrity and honesty" and "[w]e hold ourselves accountable . . . to the policies and procedures of the school and its associated clinical sites” (Handbook, page 46). (AR 309.)

Although the January 14 and October 19, 2022 letters were not particularly detailed, the letters did advise Petitioner of the central factual allegations (Dr. Elliott’s summary of inconsistent statements made by and Petitioner’s improper use of a fraudulent or paper badge to enter and move through LAC+USC Medical Center) and the provisions of the Code Petitioner allegedly violated. (AR 305 [for July 2022 meeting], 309 for October 12, 2022 hearing].) As discussed below, Petitioner also received the evidence relied upon by SPC prior to its dismissal hearing on February 24, 2023. (AR 228-257, 294-318, 349.) The court concludes that Petitioner received sufficient notice of the allegations and charges related to improper use of a paper badge.

Petitioner has not developed an argument she lacked sufficient notice of the allegations and ultimate findings she was dishonest and made misrepresentations to security personnel regarding her security badge. (See AR 477, 481-482, 645 [discussing “misrepresentations” and “dishonesty” with security personnel by Petitioner’s own account].) Such findings are inherently related to and intertwined with Petitioner’s use of a “fraudulent badge” and were based, at least in part, on Petitioner’s own written statements to SPC. Based on the administrative record and the parties’ arguments in their briefs, the court finds Petitioner received sufficient notice of dishonesty allegations.

Petitioner has not met her burden of demonstrating Respondent deprived her of a fair hearing.

Petitioner contends “Student Affairs did not provide [her] any of the evidence that had been presented to SPC in 2021 and 2022 until February 14, 2023.” (Opening Brief 16:26-27 [citing AR 302].) Petitioner relies on AR 302, a letter dated October 14, 2021, to support her position. The evidence she cites does not support her claim.

Petitioner argues “SPC made decisions against [Petitioner] based on evidence, witnesses, and argument that were never shared with [her].” (Opening Brief 17:2-3.) Petitioner fails to develop the argument with discussion of the administrative record. Accordingly, the court finds the argument to be unpersuasive. (See Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549, 588. [“When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ ”])

Moreover, the court concludes Petitioner had sufficient access to relevant evidence prior to her final dismissal hearing on February 24, 2023 thereby ensuring a fair hearing. On February 14, 2023, 10 days in advance of the hearing, Respondent (Student Affairs) provided Petitioner with the relevant policies and a two-page timeline with information Keck had received regarding Petitioner’s use of a printed copy of her expired blue identification badge. (AR 228-257.) On February 21, 2023, after meeting with Petitioner to discuss the procedures for the dismissal hearing, Respondent (Student Affairs) sent Petitioner documents regarding SPC’s prior decisions place her “ ‘at risk’ for professional probation” and on “Professional Behavior Probation.” (AR 294-318.) These documents by Respondent included a timeline of the information SPC considered for those prior decisions. (See AR 294, 310-318.) Petitioner has not demonstrated—with citations to the administrative record—Respondent omitted any evidence from its email communications with Petitioner on February 14 and 21, 2023.

Primarily in reply, Petitioner suggests Respondent denied her a fair hearing because Respondent “provided the 84-pages [that comprised the entire dismissal record] about four hours before the hearing.” (Reply 12:4-5.) On February 22, 2023, Petitioner submitted a statement for the SPC dismissal hearing. (AR 321-336.) On February 23 and 24, 2023, Petitioner asked Respondent (Student Affairs) for the entire “84-page document” that had been provided to SPC for the dismissal hearing to be held later on February 24. (AR 344, 348.) On February 24, 2023, at 12:03 pm, Respondent (Student Affairs) emailed Petitioner “the documents that were sent to the Committee.” (AR 349-434.) It appears that this “84-page document” includes the documents that had already been produced to Petitioner on February 14 and 21, 2023 as well as Petitioner’s own prior written statements to SPC. Petitioner has not identified any other evidence in the 84-page document she had not previously been provided. Moreover, Petitioner could have been prejudiced by the production of her own written statements previously made to SPC on February 24, 2023.

Petitioner has not demonstrated Respondent violated its own procedures when it produced the relevant evidence to Petitioner prior to the February 24, 2023 dismissal hearing. Respondent’s dismissal procedure provides “[t]he student will be provided information relevant to the proposed dismissal upon request including student records, and other documentation used in arriving at the decision.” (AR 7.) Respondent’s policy does not include a specific time for production. Further, Respondent provided Petitioner with the timeline related to the “fraudulent badge” allegation 10 days prior to the dismissal hearing.

The court finds the 10-day period provided was sufficient for Petitioner to review and respond to the “fraudulent badge” evidence in her statement submitted to SPC on February 22, 2023. Respondent produced the documents related to the May 17, 2021 and August-September 2021 communications on February 21, 2023, four days prior to the dismissal hearing. The evidence produced on February 21 was nothing new—it was well known to Petitioner because she discussed such evidence in her appeal statements dated October 13, 2021, October 27, 2021, and January 7, 2022. (AR 363-364, 453-461, 368-369.) Petitioner has not explained how she could have been prejudiced by Respondent’s production of evidence of her statements three days before the dismissal hearing on February 21, 2023. The court therefore concludes Petitioner had sufficient access to the evidence at issue for SPC’s dismissal hearing on February 24, 2023.

Petitioner also suggests Respondent did not give her sufficient access to evidence for the earlier SPC meetings resulting in SPC’s decisions placing her “ ‘at risk’ for professional probation” as well as on “Professional Behavior Probation.” It is somewhat unclear from the parties’ record citations whether Respondent provided Petitioner with the evidence relied upon by SPC prior to the July 14, 2021, October 13, 2021, January 14, 2022, and October 12, 2022 meetings. (See e.g. AR 104-105, 106-107; see also AR 310-312.) Dr. Price-Johnson’s email dated February 21, 2022 suggests Petitioner may not have been given access to all of SPC’s evidence prior to these meetings. Respondent seemingly acknowledges the evidence used by SPC may not have been disclosed to Petitioner prior to the SPC meetings; Respondent argues a lack of prejudice in response to the claim.

Petitioner argues in response she experienced prejudiced because she “lost each time.” (Reply 12:6-11.) Petitioner does not respond to Respondent’s position that Petitioner’s appeal statements demonstrate she understood the allegations against her at the probation-related meetings. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Further, as discussed earlier, Petitioner had been informed of the relevant email communications by Dr. Arias before the July 14 meeting. (AR 310-312.) The October 13, 2021 meeting became moot after Dr. Elliott vacated the first probation decision; and Dr. Elliott’s November 18, 2021 letter provided Petitioner with a detailed summary of the communications at issue for the second probation-related meeting with SPC on January 14, 2022. Prior to the January 14 meeting with SPC, Petitioner submitted three appeal statements demonstrating familiarity with the communications and the evidence against her. (AR 363-364, 453-461, 368-369.) Finally, the October 12, 2022 meeting determined that SPC should consider Petitioner for dismissal—it was not the dismissal hearing. Thereafter, Respondent provided Petitioner with access to all evidence relied upon by SPC prior to the February 24 2023 dismissal hearing as required by Respondent’s policy. Under the circumstances, Petitioner does not show she suffered any prejudice to the extent Respondent did not provide her with access to all of SPC’s evidence prior to the July 14, 2021, October 13, 2021, January 14, 2022, and October 12, 2022, SPC meetings.

Petitioner contends “Student Affairs . . . did not allow her to hear the presentation of Student Affairs’ case against her at any SPC meeting or hearing, and denied Jane Petitioner any reasonable opportunity to respond to the charges and allegations in a meaningful way.” (Opening Brief 16:27-17:2.) The court disagrees. Respondent’s process provided Petitioner with the opportunity to present her defense in written and oral statements and responses to inquiries made at the SPC meetings as well as her appeal statements. (See e.g., AR 363-364, 453-461, 368-369, 475-478.)

The court finds Petitioner had adequate access to the evidence and a reasonable opportunity to respond to that evidence through Respondent’s process.

Petitioner points out SPC meetings involving Petitioner were not transcribed. (See e.g., Opening Brief 10:12-17; Reply 12:3-4.) Petitioner has not developed an argument SPC was required to transcribe its meetings. Petitioner has also not demonstrated a lack of transcript violates the common law doctrine of fair hearing.[13]

Petitioner asserts “Student Affairs denied Jane Doe any opportunity to confront witnesses against her . . . .” (Opening Brief 16:27-17:1.) Petitioner does not elaborate on her complaint with any discussion of applicable case law or suggesting any “witnesses” Petitioner wished to confront. Given the absence of legal analysis, the court considers the point waived. (Saltonstall v. City of Sacramento, supra, 234 Cal.App.4th at 588.)

As noted earlier, in Boermeester, the Supreme Court held under the common law doctrine of fair procedure, private universities “are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually.” (Boermeester, supra, 532 P.3d at 1088.) “Instead, private organizations should ‘retain the initial and primary responsibility for devising a method’ to ensure adequate notice and a meaningful opportunity to be heard.” (Ibid.)

Without acknowledging Boermeester, Petitioner asserts in her Reply:[14] “Even if a student facing dismissal after having completed medical school were not entitled to a live hearing with evidence, exhibits, witnesses, cross-examination, and impartial adjudicators, the Student Affairs/SPC administrative process falls short in every aspect of fairness.” (Reply 12:12-16.) Other than her argument about when she was given access to SPC’s evidence (discussed earlier), Petitioner provides no legal analysis of how SPC’s process “falls short.” Again, the court must consider the point waived as insufficiently developed.

Moreover, pursuant to Respondent’s published dismissal procedure, Petitioner could have presented affidavits, exhibits, and oral testimony in support of her defense. (AR 7.) Without some discussion by Petitioner of the witnesses she allegedly wished to “confront,” the relevant university procedures for doing so, and how she was prejudiced through a lack of confrontation, even if indirectly, the court finds Petitioner’s arguments unpersuasive.

Further, as discussed infra, SPC’s factual findings were based, at least in part, on Petitioner’s own written and oral statements to SPC. While SPC did rely to some degree on written statements of other persons (e.g. student affairs employee Ronald Rapanot and OSAS employees) (see AR 477, 315-318), Petitioner does not appear to challenge the veracity of those statements. Accordingly, Petitioner has not identified any prejudice she suffered based on a lack of ability to question Rapanot or other witnesses.

In reply, within her discussion of the sufficiency of the evidence, Petitioner succinctly argues: “After [Petitioner] appealed the probation, SPC says it reached out to other departments (AR 112), and apparently spoke to witnesses who were never identified nor their statements provided to Jane . . . .” (Reply 10:9-10.) As Petitioner raised the issue in reply, Respondent has not been provided with an opportunity to respond to it; the argument is improper. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Further, the argument is unpersuasive because it lacks discussion of authority and appropriate legal analysis. (Saltonstall v. City of Sacramento, supra, 234 Cal.App.4th at 588.)[15]

Based on the foregoing, the court finds Petitioner has not demonstrated Respondent denied her a fair hearing based on issues related to witness testimony.

As noted earlier, the substantial evidence standard of review applies to this court’s review of Respondent’s administrative fact finding.

[The court] do[es] not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. The administrative agency’s findings come before [the court] with a strong presumption as to their correctness and regularity. [The court] do[es] not substitute [its] judgment if the agency’s decision is one which could have been made by reasonable people. Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency’s findings are not supported by substantial evidence. (Doe v. Regents of the University of California, supra, 5 Cal.App.5th 1055, 1073 [cleaned up].)

In its March 1, 2023 decision, SPC found “[l]ess than a year after being placed on Probation, [Petitioner] violated the Code of Professional Behavior again related to [her] use of a paper copy of [her] County badge to enter and move throughout the LAC+USC Medical Center on September 23, 2022.” (AR 476.) SPC explained at length the factual basis for its decision. (AR 476-477.) When she denied Petitioner’s appeal of SPC’s decision, Dr. Meltzer found Petitioner’s use of a printed copy of an expired badge and her misrepresentation to security were sufficient, in and of themselves, to justify the dismissal decision. (AR 646-647.) Dr. Meltzer explained: “Professionalism, including honesty and integrity, is an integral part of Keck's curriculum and its expectations of its students.” (AR 646.) Dr. Meltzer expressly disagreed with Petitioner’s position “the dismissal decision was grossly disproportionate to the findings.” (AR 646.)

Under Code of Civil Procedure section 1094.5, “the challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging . . . . And in doing so, the challenger cannot simply ignore the evidence in the record that was relied upon by the board . . . . Rather, the challenger must explain why that evidence is insufficient to support that finding.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513.)

Petitioner identifies a single SPC finding related to the badge incident as unsupported by the evidence: “[B]y reporting to County employees that the Keck School printed a paper copy of your badge ‘for temporary use,’ you implied that Keck granted you permission to use it, which they did not.” (Opening Brief 19:12-15 [citing AR 477].) Without citation to the administrative record, Petitioner argues “[a] fair reading of the record shows that Jane Doe’s statements were intended to be, and are, objective statements of fact.” (Opening Brief 19:15-16.)

Petitioner has failed to address the evidence supporting SPC’s findings. Such evidence constitutes substantial evidence.

The Committee specifically asked you about your communications with security at the LAC+USC Medical Center regarding the paper badge and your decision-making process for using a paper badge. The Committee pointed out that in your written statements to the Committee, you stated that when a security guard told you that you could not use a paper badge, you stated you were "confused, as my school helped me to print the badge for temporary use." (See your October 10, 2022 and February 22, 2023 statements.) As you know, Keck did not print a copy of your badge to allow you to use it to enter the LAC+USC Medical Center. Rather, when you were in the Office of Student Affairs on September 22, 2023, you asked Roland Rapanot to print a copy of your badge for you; however, you did not advise Mr. Rapanot that you had misplaced your official badge or that you intended to use the paper copy to enter the LAC+USC Medical Center.

When the Committee asked you about your statement to security that your "school helped [you] print the badge for temporary use," you responded that you did see how the statement was dishonest. However, by reporting to County employees that the Keck School printed a paper copy of your badge "for temporary use," you implied that Keck granted you permission to use it, which they did not.

When the Committee asked you about your decision-making process in using a paper copy of your badge to access the LAC+USC Medical Center, you pointed out that certain security guards allowed you to use a paper badge at the LAC+USC Medical Center on September 23, 2022. While security should have stopped you the first time you presented a paper badge, the Committee was concerned that you were attempting to shift the blame for your own decisions onto security.

Your response showed a lack of insight into the importance of conducting yourself with integrity and honesty. Your responses to the Committee regarding your interactions with security and your decision-making process in using a paper copy of your badge demonstrated that your response to being confronted with mistakes is to make misrepresentations and shift blame onto others. The Committee found your behavior to be a violation of the Code's Honesty and Integrity tenet: "We will conduct ourselves with the highest degree of integrity and honesty." (AR 477.)

Petitioner does not address SPC’s detailed findings or the evidence upon which they were based. Specifically, Petitioner does not address (1) her own written statements that she told a security guard she was “confused, as my school helped me to print the badge for temporary use” (AR 406, 322); or (2) the statement of Roland Rapanot that Petitioner did not inform him Petitioner had misplaced her official badge and intended to use the paper copy to move through LAC+USC Medical Center (AR 257; see also AR 159-160). A reasonable person could conclude from this uncontroverted evidence that Petitioner was dishonest and falsely implied to County employees Kect staff had granted her permission to use a paper copy of her badge “for temporary use.”

SPC also found Petitioner “violated the Code's Responsibility, Reliability, and Accountability tenet: ‘We hold ourselves accountable . . . to the policies and procedures of the school and its associated clinical sites.’ ” (AR 476.) Substantial evidence supports SPC’s finding. LAC+USC Medical Center’s policies specify personnel are required to prominently display their “official facility identification badges at all times while present” at the facility. (AR 234, 246.) Petitioner admitted she used a printed copy of an expired badge to enter the facility—a violation of the Code. (AR 405.)

SPC also explained “[w]hile security should have stopped [Petitioner] the first time [she] presented a paper badge, the Committee was concerned that [Petitioner was] attempting to shift the blame for [her] own decisions onto security.” (AR 477.) Petitioner may challenge the finding through her report she accurately (“objective statements of fact” [Opening Brief 19:16]) identified herself to security personnel at LAC+USC Medical Center, was “allowed to pass to her job” and complied with the instructions given by security when she was stopped. (Opening Brief 19:9-11.) Petitioner points out the County’s identification badge policy allows “five business days” to report “any lost or stolen identification badge . . . .” (OB 19:7-8, citing AR 72.) Petitioner also notes the County’s identification badge policy requires “Personnel failing to display identification badges [to] identify themselves upon request to any employee.” (AR 72.)

There can be no question a paper copy of an expired badge is not an “official facility identification badge . . .”—the badge required by the County’s policy and the Code. (AR 234.) Petitioner provides no authority (County policy or Code provision) authorizing her use of a printed paper copy of an expired badge to enter the LAC+USC Medical Center. In fact, the County’s policy concerning identification badges requires the use of “laminated” badges and

expressly provides “under no circumstances can these procedures be waived.” (AR 73.) Substantial evidence supports SPC’s finding Petitioner violated the County’s identification badge policy, and Petitioner’s misconduct was not excused by security personnel failing to stop her the first time she used a paper badge.

Petitioner takes exception with Respondent’s claims she used an expired badge (the blue badge) for the paper copy—she argues the blue badge had not expired. (Reply 11:7-8. See AR 645-646.) Petitioner’s own statements, however, recognize her “previous blue badge” had been replaced with a “new green version.” (AR 405.) Personnel do not have two official identification badges. “Identification badges are to be reissued biennially (every two years) and color coded for easy identification.” (AR 72.) Accordingly, substantial evidence supports Respondent’s finding Petitioner used an “old badge that was no longer valid.” (AR 646.)

Based on the foregoing, substantial evidence supports Respondent’s findings Petitioner violated the Code when she used a printed copy of an expired badge to enter the LAC+USC Medical Center. Substantial evidence also supports Respondent’s findings Petitioner misrepresented to security personnel that Keck had printed the badge she was using “for temporary use.” (AR 646.)

Petitioner’s Written Communications Related to USMLE Step 1 Practice Examination and OB/Gyn Clerkship

Dr. Meltzer denied Petitioner’s appeal of SPC’s dismissal decision and found Petitioner’s use of an expired paper badge as well as her subsequent misrepresentations to security, standing alone, would constitute sufficient grounds for dismissal from Keck. (AR 646-647.) As discussed infra, the court cannot find Dr. Meltzer’s decision (as well as that of SPC) concerning penalty constituted a manifest abuse of discretion. Accordingly, SPC’s decision finding Petitioner “ ‘at risk’ for professional probation” (AR 105) and “Professional Behavior Probation” (AR 112) are not central to Respondent’s dismissal decision.

Nonetheless, the court agrees with Respondent that substantial evidence supports those SPC decisions. (See Opposition 17:4-22.) Substantial evidence supports the finding Petitioner’s written communications demonstrate she misrepresented she had been advised by OSAS to work informally with Keck to obtain medical accommodations. (AR 314-318.) The evidence demonstrates OSAS approval for accommodations was required prior to a request to modify her clerkship, and Petitioner had not obtained such OSAS approval when she communicated that OSAS had advised her to work informally with Keck officials. (See e.g. AR 317-318, 315.) Finally, while the May 17, 2021 email related to UWorld may have not warranted discipline on its own, substantial evidence supports a finding it was inappropriate and reflected a lack of professionalism in its tone thereby adding to Petitioner’s “pattern” of unprofessional behavior. Substantial evidence supports SPC’s findings concerning these communications by Petitioner.

The court has considered Petitioner’s arguments about her May 2021 and August-September 2021 communications. (Reply 7:11-15, 10:1-8) Petitioner’s arguments concerning SPC’s initial reasons for imposing probation—failure to follow protocol—are not relevant because Dr. Elliott vacated SPC’s decision by granting Petitioner’s appeal and ordering reconsideration. Contrary to Petitioner’s position, SPC did find Petitioner “misrepresented that accommodations were already established with the Office of Student Accessibility Services (OSAS) and that [Petitioner was] told to reach out directly to the Ob/Gyn clerkship to manage [her] accommodations.” (AR 475 [emphasis added]; see Reply 10:21-24.)

There is no dispute Petitioner made the statements relied upon by SPC in its findings. Rather, Petitioner asks the court to reweigh the evidence and find the May 2021 and August 2021-September 2021 communications did not violate the Code and did not justify dismissal. On substantial evidence review, however, the court does not weigh the evidence or substitute its judgment for that of the agency. (Doe v. Regents of the University of California, supra, 5 Cal.App.5th at 1073.) The evidence supports SPC’s finding Petitioner did not “ ‘conduct [herself] with the highest degree of integrity and honesty’ ” as required by the Code. (AR 475.)

Substantial evidence supports Respondent’s administrative findings. Petitioner did not meet her burden of demonstrating agency error.

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) If reasonable minds can differ about the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.) Importantly, the court cannot substitute its own judgment for that of the agency.

Petitioner asserts “no reasonable mind could consider that the utter loss of Jane Doe’s investment in her education, the loss of her earned medical degree, and the loss of a professional career as a physician is reasonable under the circumstances” to challenge the penalty imposed by Respondent. (Opening Brief 19:23-25.) Relatedly, Petitioner argues:

A fair review of the record shows [Petitioner] to be apologetic, receptive to feedback and criticism, responsive, direct, accepting of direction and instruction, and an able advocate for herself and others. Favorable reviews by physicians, residents, and professors who have worked closely with [Petitioner] in clerkships, in internships, or as mentors, paint a very different picture of [Petitioner] that what [Keck] Student Affairs and the SPC present. (Reply 4:8-12.)

Petitioner’s dismissal from Keck resulted from decision making by eleven different physicians—nine members of SPC, Dr. Elliott and Dr. Meltzer. SCP explained the rationale for its decision to Petitioner:

The Committee expressed concern about your pattern of behavior that violates the professional norms and expectations of the School, your inability to acknowledge how your professional behavior violations could impact your career in medicine, and your lack of accountability for your unprofessional behavior. As the Committee explained to you, a career in medicine is different than a career in any other field. It requires the highest degree of professionalism and integrity because when medical professionals do not comport themselves with professionalism and integrity and hold themselves accountable, patients could be put at risk. (AR 477.)

Respondent has broad discretion to impose a penalty and in determining whether Petitioner’s conduct justified dismissal. While a different penalty may have been possible, a reasonable decisionmaker could conclude that dismissal was the appropriate penalty for the multiple violations of the Code at issue and SPC’s cited pattern of Petitioner’s unprofessional behavior.

The Code and the explanations provided with Respondent’s administrative decisions focus upon the importance of honesty and integrity to the medical profession (see e.g. AR 1-10, 477-478, 645-646), and also the need for Keck students to hold themselves accountable to policies and procedures of associated clinical sites, such as the County’s identification badge policy at LAC+USC Medical Center. (AR 2, 72-73). Moreover, it is apparent the County’s identification badge policy at the medical center is intended, at least in part, as a patient safety measure. (AR 72-73.) Given those factors as well as those identified in SPC’s decision, the court cannot find the penalty imposed by Respondent constitutes a manifest abuse of discretion. This is true even if Petitioner was only found guilty of improperly using a paper copy of an expired identification badge to enter the LAC+USC Medical Center and making misrepresentations to security personnel. Such act and the facts surrounding it, as found by Respondent, demonstrate a lack of insight, blame shifting and misrepresentation in a field that “requires the highest degree of professionalism and integrity because when medical professionals do not comport themselves with professionalism and integrity and hold themselves accountable, patients could be put at risk. (AR 477.)

Petitioner refers to Topanga Assn. for Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515 [Topanga] in her Opening Brief, but she does not otherwise develop an argument Respondent failed to bridge an analytical gap between the raw evidence and the decision thereby impeding judicial review. (Opening Brief 16:4-6.) Petitioner does suggest Respondent’s decision related to Petitioner’s email to Keck staff concerning the UWorld examination failed “to show the ‘analytic route the administrative agency traveled from evidence to action’ linking evidence to specific policy violations.” (Reply 6:14-16.)

While it is not entirely clear to the court that Petitioner actually intends to raise an issue under Topanga, at best, Petitioner raised any claim based on Topanga for the first time in her Reply. The court finds the issue waived as it appears there is no good cause for raising the issue for the first time in her Reply. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) To the extent Petitioner did intend to raise such the issue, she has insufficiently developed it. Moreover, Respondent explained, through Dr. Nash, Petitioner’s email was “inappropriate” and “a more respectful email in the future” was warranted even under frustrating circumstances. (AR 310.)

[1] Petitioner’s first amended petition seeks an “order commanding [USC] to set aside the administrative disciplinary decision to place Petitioner on probation and ultimately dismiss Petition from medical school.” (First Amended Petition [FAP], Prayer ¶ 1.)

[2] Generally, “a hearing on a writ of administrative mandamus is conducted solely on the record of the proceedings before the administrative agency.” (Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881.) Extra-record evidence may be admitted if, in the exercise of reasonable diligence, the relevant evidence could not have been produced or was improperly excluded at the hearing. (Code Civ. Proc., § 1094.5, subd. (e).) The requirements to augment the administrative record are “stringent.” (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 102.)

[3] Petitioner did not file a motion to augment the administrative record pursuant to Code of Civil Procedure section 1094.5, subdivision (e). Petitioner’s briefing also does not demonstrate Petitioner could meet the statutory requirements for augmentation.

[4] As discussed further infra, the court issued an order staying Respondent’s dismissal decision thereby allowing Petitioner to complete necessary course and clinical work to meet the educational requirements for a degree.

[5] The USMLE Step 1 is part of a three-step examination program for medical licensure in the United States. (AR 485.)

[6] Petitioner included the information in appeal of Respondent’s March 1, 2023 dismissal decision. (AR 485.)

[7] According to Petitioner, Dr. Nash is OSAS’s Director of Academic Support Programs. (Opening Brief 7:13.)

[8] Dr. David Diller thereafter served as Petitioner’s faculty mentor. (AR 485.)

[9] Initially, on September 23, 2022, security personnel reported Petitioner had used both a false name and “fake badge.” On September 28, 2022, Keck learned Petitioner signed in using her own name—the false name allegation proved inaccurate. (AR 256-257.)

[10] Having appeared on the matter in the Supreme Court, both counsel are quite familiar with the case.

[11] Although the professionalism rules are mentioned and summarized in the Medical Student Handbook (AR 55-56), the parties have not cited any relevant procedures in the handbook. (AR 10-71.)

[12] If Petitioner contends the notice SPC provided to her prior to the October 13, 2021 meeting was insufficient, her successful appeal of the decision mooted the issue. Petitioner received the benefit of reconsideration with specific instruction from Dr. Elliott.

[13] The court notes there is no suggestion SPC or others inaccurately characterized Petitioner’s statements. Such evidence, of course, would be subject to a motion to augment the administrative record. (AR 475-478; see Code Civ. Proc., § 1094.5, subd. (e).)

[14] The Supreme Court filed its decision on July 31, 2023. Petitioner filed her Reply eight days later on August 8, 2023.

[15] It is unclear to the court whether Petitioner’s claim made in reply is one of fair hearing. If so, without further explanation, the court cannot address it. Moreover, Petitioner cites to SPC’s decision placing her on probation, not the final dismissal decision. (AR 112.) Notably, Petitioner has not challenged the veracity of any witness statements truthfulness of statements, including that of Rapanot advising Petitioner did not inform him she was going to use the printed badge to enter a County medical facility. (AR 257, 477.)