Opinion
A165818 A165842
04-27-2023
JOHN M. HEINEKE Plaintiff and Appellant, v. SANTA CLARA UNIVERSITY, Defendant and Respondent. JOHN M. HEINEKE Plaintiff and Appellant, v. SANTA CLARA UNIVERSITY et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Order Filed Date 5/18/23
Santa Clara County Super. Ct. Nos. 18CV332285, 18CV333011
ORDER MODIFYING OPINION AND DENYING REHEARING;
THE COURT:
It is ordered that the opinion filed herein on April 23, 2023, be modified as follows: 1. On page 2, line 4, replace the words "the FJB" with the word "SCU" so that the sentence reads:
In the mandamus action, Heineke contends SCU did not provide him with a fair hearing and failed to adhere to its own procedures governing the hearing process and that there is not substantial evidence to support SCU's or the trial court's findings of fact.
2. On page 2, line 14, replace the words "the FJB" with the word "SCU" so that the sentence reads:
Further, we find there was substantial evidence to support the findings of both SCU and the trial court.
3. On page 46, line 2 of footnote 36, replace the words "the FJB's finding" with the words "SCU's finding" so that the sentence reads:
Our reasoning should not be misconstrued as a conclusion that the judgment in the mandamus proceeding gives SCU's finding of harassment, as affirmed herein, issue-preclusive effect in the civil action.
There is no change in the judgment.
The petition for rehearing is denied.
WHITMAN, J. [*]
Following a series of decisions, culminating in an administrative hearing before the faculty judicial board (FJB) at Santa Clara University (SCU), the FJB upheld the finding that Professor John Heineke had sexually harassed a SCU student (Jane Doe) in 2015. SCU terminated Heineke's tenure and fired him. Heineke filed a petition for administrative mandamus review of the FJB decision and a civil action against SCU and Doe. In the mandamus proceeding, the superior court found that Heineke was not entitled to writ relief. In the civil action, the court granted defendants' motion for summary judgment, disposing of the entire case.
In these consolidated appeals, Heineke challenges both decisions. In the mandamus action, Heineke contends SCU did not provide him with a fair hearing and failed to adhere to its own procedures governing the hearing process and that there is not substantial evidence to support the FJB or the trial court's findings of fact. In the civil action, Heineke contends the trial court erred in denying his motion for continuance to allow additional discovery and briefing and granting summary judgment.
Although SCU's faculty handbook could more clearly set forth the procedural steps for adjudicating student-teacher sexual harassment cases and it is not clear that SCU scrupulously adhered to the letter of its provisions, we conclude that Heineke has not shown he was deprived of a fair hearing or that SCU prejudicially deviated from handbook procedure. Further, we find there was substantial evidence to support the findings of both the FJB and the trial court. In the civil action, we find that the trial court did not err, procedurally or substantively, except as to one count of the defamation cause of action against Doe (for republishing her accusations to an unnamed witness, outside of the litigation context). We thus affirm the order granting summary judgment as to SCU but reverse as to Doe, solely as to the defamation cause of action.
FACTUAL AND PROCEDURAL HISTORY
1. Doe's Sexual Harassment Allegations and Complaint
Heineke became a tenured professor of economics at SCU, a private institution, in 1972. His employment was subject to the faculty handbook, a part of his employment contract with SCU.
In 2015, Jane Doe, a Chinese national and MBA student, enrolled in "Econ 3400," a required graduate course taught by Heineke. During the winter quarter, at her request, she repeatedly met with Heineke in his office, outside regular office hours, for help with the course material. Doe earned an "A" grade and accepted an offer to serve as Heineke's teaching assistant (TA) for the same course in fall 2015. During the spring term (April-June 2015), Doe and Heineke had lunch at off-campus restaurants four times, twice at restaurants she chose.
During the winter and spring 2015 terms, Doe sent Heineke many friendly, complimentary emails requesting and thanking him for help with the class and other matters, and for the TA opportunity. She called him a "very great and responsible professor" who had provided "kind help," referred to him as "sweet" and as a "friend," and used many smiley-face emoji.
While the nature and extent of Heineke's physical contact with Doe in winter and spring 2015 is hotly disputed, he admits having tried to "mentor" her in European/American culture, including once demonstrating the French style of greeting by pressing cheeks and kissing the air and hugging her several times. He claimed this contact was brief, nonsexual, and at her request; as set forth below, Doe described the contact as extreme, extensive, and nonconsensual.
On June 17, Doe emailed Heineke to cancel a lunch. He expressed disappointment, as he had "made many changes" to the Econ 3400 materials that he wanted her to review while he was in Europe for the next several weeks. Doe apologized, writing that she had not realized he wanted to "discuss the TA thing" and had thought "it was just a casual lunch with a friend."
On July 12, Heineke emailed Doe that he would like to meet soon if she had "had a chance to look at the materials for the course." She replied that she had not and proposed meeting after August 11. He replied that he was "disappointed," as he would "have everything finished by then," and had been "hoping to have much more interaction with you as my assistant, [e]specially . . . about additions and changes in the course."
Doe responded that she was unavailable during summer break, as she had said before. She offered to confer by email in late July, adding, "I believe [past TAs] cannot just go to your office at any time you want during summer break. What if they are on a vacation? I don't think you treat me equally as your other assistants." Heineke acknowledged "treating [her] different[ly]" because he believed her to be "exceptionally talented academically" and had planned to give her "far more responsibility than other TAs" so that he could "recommend [her] at a level [he] had . . . seldom [done]." Nonetheless, in view of Doe's schedule, he proposed "redefining [her] position as that of a regular TA" reducing the time commitment, and putting off any meeting until September.
Doe responded, "Every person deserves to be treated equally regardless of his/her race, sex, age, religion." Asked "how much responsibility" she would like, she replied, "I want to be a normal TA, doing all a TA's responsibilities." Heineke assented and, while noting that past TAs who "now have superb jobs" had benefitted from more intensive involvement including regular meetings, offered to "make it work with the least amount of time on your part as possible."
Despite the apparent agreement to defer a meeting until September, Heineke started emailing Doe in late July to see if she was available to discuss the materials sooner. She reminded him she would "not be around until beginning of the fall quarter." He emailed again in August and early September, asking her to review materials and eventually suggesting the need to meet was urgent. He then inquired as to her status on September 4, and again on September 5, asking her if she had received the materials. On September 7, he wrote, "I NEED TO DISCUSS ECON3400 WITH YOU- ASAP. [¶] WHEN ARE YOU AVAILABLE?"
About 50 minutes later, Doe replied she was "in a very intense program now," did not "even have time to sleep and eat," and was, as she had said, unavailable until "after the summer break.... [¶] BTW, I feel VERY VERY UNCOMFORTABLE when somebody touch my body, kiss me in the face and mouth, tell me some sex joke, aka sexual harassment."
Six hours later, Heineke sent a long response (quoted at length in the margin) expressing his disbelief, shock, and devastation, and suggesting his "gestures of friendship" had been misinterpreted by Doe due to cultural differences. He disclaimed any interest in Doe, other than her academic ability and role as a TA and asked again regarding her availability "to discuss the course."
"I am stunned by your remark!! I still cannot believe what you wrote and find it extremely difficult to even answer your email. I am devastated! . . . I have been using student TAs for 30+ years and have NEVER had anything except warm and friendly relations with them, all of them-male and female alike. I help them find jobs, write recommendations and often they remain friends a great many years later. The friendly gestures I made toward you, I do with my sisters, my sister-in-laws. my father-[in]-law!, my brother-in-laws! and friends here at the university and in Europe. I did not realize the extent of the cultural divide between US/European and Chinese customs. I have had many Chinese assistants, many of whom stay in contact with me, and have never heard anything like this before. To make it clear: I have no interest whatsoever in you [-] ZERO!! [-] EXCEPT for your academic ability and your willingness to spend enough time to be an excellent TA. Rest assured our relationship will be as formal as is possible from now on. I will no longer try to mentor you on U.S. culture. All I want from you is a highly effective interaction with students-NOTHING else. How you could think otherwise is deeply troubling. I remain in shock-After all, I am old enough to be your grandfather!!! I am deeply sorry for the way you have misinterpreted my gestures of friendship. [¶] My primary concern with you has been that, unlike any assistant I have ever had, you do not answer emails and do not follow through on things that I have asked every assistant to do, like reading and critiquing the course materials for the coming quarter .... Perhaps I wasn't clear enough about my expectations or I did not properly understand your summer commitments. If so I apologize. I wish you had reminded me of your intensive course, which I now vaguely recollect. [¶] In the past[,] many assistants have provided excellent ideas for homework problems and suggestions about rewording of class materials that will make them easier for students to understand....I need someone I can be in regular contact with-someone who answers email. [¶] So going forward, when are you free to discuss the course? . . . [¶] Please let me know your availability ASAP."
The next day (September 8), Heineke emailed to ask if Doe "would still like to be [his] TA" He said he still believed her to be "eminently qualified" but suggested, "Do what you feel is best for you, but please let me know as soon as you can as it might take some time to find a replacement."
On September 9, Doe wrote, "oh really? this is your country's culture? You put your hands inside my clothes and touch my body, my skin for long long time, you put your hands into the back pocket of my jeans squeezing my butt, you hug me in such a way I can feel your penis while kissing me in the mouth!!!! you ask me to sit with you in the same chair . . . You insisted me having lunch with you nearly every single day in the name of 'discussing class' but doing nothing except touching me!!!!! . . . You asked me many disgusting topic like 'did you get hurt when you first have sex'! YOU DO THIS TO YOUR FAMILY AND AMERICAN STUDENTS???? [¶] You really think people from China are ignorant enough to believe all of those are 'cultural difference' &'mentor on U.S. culture'??!!!" "Maybe I am not a master of other culture but I DID KNOW WHAT IS SEXUAL HARASSMENT SO DOES EVERY GIRL IN MY COUNTRY."
An hour later, Heineke replied that he was "devastated" and denied having done any "of the horrible things" Doe described. "I do not understand how you could possibly say what you have....In my 30+ years of teaching I have not [had] even one complaint. I am very very sad. [¶] Would you like to stop by to talk? Would that help?"
On September 11, Heineke wrote, "Your words haunt me. Is there anything I can do to regain your trust? You are a wonderful student. I want you to TA [Econ] 3400 if you can, and most of all I would like to think of you as a friend when you leave the program. Can we talk next week?" On September 13, and 15, he sent additional urgent inquiries, of which the latter read, "Please let me know if you are going to be my TA. I want you to do it very badly because of your qualifications. Please say yes. You will not be sorry, and will learn a lot."
Doe did not reply. On September 21, she emailed SCU's equal employment opportunity office to report that Heineke "sexual[ly] harassed [her] for half [a] year. [¶] . . . When I asked questions (even some real small ones . . .) he never replied [to] me by email but insisted [I] go to his office"; when she did so, "he always opened a heater before my coming and asked me to take off my outwear. At first he just gave me a little hug and touched my face. [¶] But things got worse and worse."Noting that she had accepted Heineke's offer to be his TA because she considered it "a good opportunity to learn," Doe repeated the allegations in her September 9 email. She rejected Heineke's reference to "cultural differences" and his claim that he behaves similarly with family and friends, adding that his eventual denial left her "very very devastated. I felt disgust[] even think[ing] of his face."
SCU Director of Equal Opportunity and Title IX Coordinator Belinda Guthrie met with Doe about her claim, but Doe did not respond to Guthrie's post-meeting requests for more information and did not pursue her claim. Guthrie did not initiate an investigation or advise Heineke of the complaint. Heineke did not tell anyone at SCU of the emails and deleted them from his account because, he said, they "bothered [him] immensely."
2. The 2017 Investigations
Fifteen months later, in January 2017, another female student from China (Student A) complained to Guthrie's office that Heineke had sexually harassed her. Guthrie hired Michael Henry, an investigator with the National Center for Higher Education Risk Management Group (NCHERM), to investigate Student A's claim. According to Henry, Student A said in a March 2017 interview that after she submitted her complaint, a mutual friend had put her in touch with a former student (whose name Student A did not know) who also claimed harassment by Heineke. At Henry's request, Student A texted the former student, who proved to be Doe; she agreed to speak with Henry.
SCU had NCHERM on retainer to provide sexual-harassment and other training, and Guthrie worked as a consultant for the firm.
On the same day, Henry interviewed Heineke about Student A's allegations. Henry asked Heineke, "Has this ever occurred before?" or "Has anything like this ever come up before?" Heineke said no and did not disclose Doe's accusations.
Later that month, Henry interviewed Doe at length; she gave an account consistent with her September 2015 emails. In April 2017, Henry sent Guthrie a memorandum summarizing Doe's accusations, characterizing them as credible and partially corroborated by other witnesses, and noting that he had not yet discussed her allegations with Heineke. Guthrie authorized a separate investigation of Doe's claim.
In May 2017, Henry reinterviewed Heineke and seven other witnesses about Doe's accusations. Before disclosing Doe's allegations, Henry again asked Heineke whether "anything like this" had ever happened to him before, which Heineke again denied..
In May 2017, Henry issued a report concluding that Heineke had not sexually harassed Student A.
In June 2017, Henry issued a 54-page report on his investigation, "conducted pursuant to [SCU]'s . . . [harassment] policy" (appendix F to the faculty handbook, discussed below), finding it more likely than not that Heineke had harassed Doe. The report described Henry's interviews of Heineke, Doe, and seven unnamed acquaintances of Doe and attached copies of emails between Doe and Heineke from 2015, including the above-quoted emails of September 7-15, which Doe had provided.
3. Faculty Handbook Provisions
Because the investigation and ensuing hearing process are governed by the faculty handbook, and Heineke asserts SCU did not follow its provisions, we pause to set forth relevant provisions of the handbook. Three sections are relevant: (a) section 3.9, which defines a procedure for determining whether a tenured faculty member should be terminated for "misconduct"; (b) appendix F (the unlawful sexual harassment policy), which provides a procedure for investigation and adjudication of sexual harassment claims between any two members of the university community; and (c) section 3.10.2, which governs the jurisdiction and procedures of the FJB in many types of cases, including both "misconduct" cases and designated sexual harassment cases. As our summary of these procedures discloses, although the conduct alleged in this case plainly constitutes both "misconduct" and "sexual harassment" and was thus potentially subject to both procedural schemes, the handbook does not set forth any guidance on which of the two procedures to use in such a case.
a. Misconduct Provisions (Section 3.9)
The faculty handbook, subsection 3.9.1, defines "misconduct" as "behavior inconsistent with commonly accepted norms of academic integrity and professional conduct for members of a university faculty, including norms articulated in this handbook." Subsection 3.9.2.2 provides, "When, in the judgment of the Provost, reason exists to dismiss and terminate the tenure of a tenured faculty member, either for misconduct or for cause, the Provost shall first discuss the matter privately with the faculty member, giving the reason(s) for the Provost's judgment." By mutual consent, the matter may be decided by the FJB in the first instance; absent such an agreement, and if the matter is not settled or dropped, the provost decides whether to issue a termination notice. Such a notice must state the reason for termination and an effective date which is, "[e]xcept in the case of gross misconduct," at least one year from the date of notice.
The faculty member is "entitled to prompt reconsideration" of the provost's decision "by the [F]B]," which "shall follow the procedures described in 3.10.2.3" (also referred to as guidelines, discussed below).
b. Policy on Unlawful Harassment and Unlawful Discrimination (Appendix F)
Appendix F of the faculty handbook is the harassment policy, which defines "harassment" and SCU's procedures for handling complaints. It details a different set of procedures than section 3.9 (misconduct) for a different (but, as in this case, potentially overlapping) set of cases-namely, for investigating, hearing, deciding and appealing a claim of harassment between members of the university community. For example, while subsection 3.9.2.2 is silent as to how the provost is expected to evaluate potential misconduct or to reach a "judgment" that misconduct has occurred, appendix F provides that the director of affirmative action (director) initially evaluates the claim, determines whether to pursue an informal resolution, and, failing settlement, must pursue a formal resolution, including an investigation. The investigator must "report in writing to the appropriate university officer" (who is, in a case in which the complainant is a student and the respondent a faculty member, the provost).The report must set forth the investigator's "evidentiary findings of the occurrence or the nonoccurrence of the alleged conduct and the investigator's legal conclusion as to whether the conduct that occurred amounted to unlawful harassment."
While the policy assigns several functions to a "director of affirmative action," Belinda Guthrie, whose title was director of equal opportunity and title IX coordinator, performed those functions in this case. Heineke did not object to this discrepancy.
Upon receiving a report, the provost will "decide upon the resolution, including, if appropriate, . . . corrective action" and "will inform the complainant and respondent(s) in writing of the evidentiary findings of the investigator and the resolution of the matter, including any remedy or corrective action." Next, section III.F provides, "either the complainant or the respondent may appeal the evidentiary findings of the investigator, the remedy or corrective action, if any, ordered by the [provost], or both."
The identity of the "appropriate university officer" to receive an investigator's report in a given case-and, later, of the "appropriate appellate decisionmaker" for any appeal-depends on "the role of the parties in the university community." For clarity and brevity, at each stage we refer to the "appropriate university officer" and "appropriate appellate decisionmaker" by the title of the officer designated to fulfill that role in a case, like this, in which the complainant is a student and the respondent is a faculty member.
In a student/faculty member case, the "appropriate appellate decision maker" is SCU's president. Before deciding an appeal, the president "may consult with any person who participated in the formal resolution process, including the complainant and respondent," and "shall consult" with the "Dean of Student Life and a member of the [F]B] selected by the [p]resident." "If a person appeals an investigator's evidentiary findings, the [president] shall affirm [them] unless it concludes that those findings were clearly erroneous." The selected remedy must be affirmed unless it is "arbitrary or manifestly unreasonable." "In either case, [the president's] decision shall be final."
While appendix F provides for FJB involvement in some types of cases, a complaint like this one-by a student against a respondent who was a faculty member-would not qualify. Rather, pursuant to appendix F, the provost would receive the investigator's report and factual findings and then make the initial decision as to remedy, which could be appealed to the president, whose decision would be final.
c. FJB Jurisdiction and Procedures (Section 3.10.2)
Section 3.10.2 of the faculty handbook governs FJB jurisdiction and procedures. Subsections 3.10.2.2 and 3.10.2.3 confer jurisdiction on the FJB in 10 types of cases, which include "cases of sanction for misconduct, as provided in [section] 3.9" and "cases designated in the [harassment policy]." As we have explained, no party invoked the FJB's jurisdiction to decide a "misconduct" allegation in the first instance, or upon "reconsideration" of a decision by the provost; nor was this a type of case "designated" under appendix F of the handbook to be heard by the FJB. Rather, after the investigator, the provost, and the president had determined that harassment did more likely than not occur, SCU informed Heineke that he could petition the FJB for review of the president's decision. Notwithstanding the lack of authority in the handbook for FJB review, the parties proceeded before the FJB. Before the hearing, the parties appeared to agree that the hearing would be evidentiary in nature and that the FJB's decision would be final; but they did not discuss whether the FJB had become involved pursuant to section 3.9 or appendix F of the handbook. As this distinction bears on Heineke's fair process claim, we also address FJB procedures.
Once the jurisdiction of the FJB is invoked, the FJB "establish[es] a hearing committee of five of its own members," none of whom has "a conflict of interest in the matter." The FJB must "proceed according to the following guidelines (numbered 1-13)."
Because in this case the FJB acted only through the hearing committee, we also refer to the committee, for brevity, as "the FJB."
The guidelines are one of two separate, numbered lists in subsection 3.10.2.3.
The guidelines provide for certain fundamental rights, including the right of each party to present evidence and argument to the FJB; to be represented by counsel at their own expense; to obtain necessary evidence and witnesses (and, to the extent the university is able, to have it secure the cooperation of such witnesses); and to confront and cross-examine witnesses who do appear. The guidelines further provide that the FJB "will not be bound by strict rules of legal evidence" and may admit any evidence it finds probative; and that it will base its findings "solely on evidence received."
Subsection 3.10.2.3 of the guidelines define the "parties" to a proceeding to include "a faculty member whose matter is before the hearing committee," "any person who has made an allegation of sexual harassment . . . under consideration," and "the university."
Importantly, guideline 12 states: "The burden of persuasion in matters before the hearing committee shall be satisfied only by a preponderance of the evidence. In cases governed by 3.9 (misconduct and diminished fitness) the burden rests upon the University. In all other cases, the burden rests upon the party invoking the jurisdiction of the [F]B]."
The 13 FJB guidelines are followed by seven numbered "items" that describe "[t]he nature and effect of decisions of the hearing committee" in seven types of cases. Item 2 states, "Except as provided in item 6 below, in cases of dismissal and termination of tenure of a tenured faculty member for misconduct or cause (3.9), . . . should the hearing committee decide that cause for dismissal and termination of tenure exists, the faculty member shall be dismissed and tenure terminated . . . [,] and the faculty member shall have no further right of review." If the committee finds cause for only a lesser sanction, or no sanction, the provost may, for reasons they find "compelling," appeal to the board of trustees, whose decision "shall be final."
However, item 6 (the identified exception to item 2) states: "In any case heard by the hearing committee pursuant to the [harassment policy], including any case involving dismissal and termination of tenure of a tenured faculty member," "the effect of the hearing committee's decision shall be as provided in the last paragraph of section III.F of the [harassment policy]." As noted, the last paragraph of section III.Fc states that the decision "shall be final."
In summary, under the misconduct procedures, the provost may find reason to terminate a professor's tenure "for misconduct." The provost discusses the matter privately with the professor and then issues a dismissal notice, which the professor can immediately petition the FJB to reconsider under its guidelines, with the burden of persuasion on the university. The FJB is to determine if cause exists for dismissal and termination of tenure. If the FJB finds cause only for a lesser sanction, or for no sanction, SCU may for "compelling" reasons appeal that decision; if, however, the FJB decides that cause for termination exists, its decision is final.
Under the harassment policy, an investigator makes to the provost a written report as to whether the respondent committed harassment. The provost determines whether to take corrective action or impose any remedy. Either the complainant or respondent can appeal the investigator's findings, the provost's remedy, or both, to the president, whose decision "shall be final." In a case such as this, where the complainant was a student and respondent an instructor at the time of the alleged harassment, the Harassment policy does not provide for FJB involvement.
4. SCU's Internal Review of Henry's Report and its Decision
Turning back to the history of this case, consistent with appendix F, Guthrie sent a copy of Henry's investigative report to the provost, Dennis Jacobs, and to Doe and Heineke. Heineke sought to provide, and SCU agreed to accept, a written response to Henry's report, and Heineke indicated that additional, relevant emails that he had previously deleted from his account might exist and urged SCU to consider them. SCU's information technology department retrieved and Henry reviewed additional emails between Heineke and Doe, mostly from the winter and spring of 2015. Henry prepared a 50-page supplemental analysis responding to Heineke's criticisms of his initial report and analyzing the recovered emails. He acknowledged the friendly tone of Doe's emails in the first half of 2015, but concluded this did not shift the preponderance of the evidence to favor Heineke.
On August 14, Provost Jacobs met privately with Heineke to discuss the matter, a step provided for by the misconduct provisions but not appendix F of the handbook. He also accepted Heineke's lengthy written response to Henry's addendum.
At the FJB hearing, asked why he met privately with Heineke, Jacobs referred to the faculty handbook, paraphrasing section 3.9 of the faculty handbook. By contrast, the harassment policy does not authorize a decisionmaker to meet, ex parte, with one of the parties.
On August 20, Jacobs issued his decision, finding "it is more likely than not" that Heineke violated the harassment policy. He found that "the preponderance of the evidence supported the finding of sexual harassment," quoting the harassment policy's definition thereof. He also noted his "acceptance of the findings of the investigation"; found that Heineke's acts amount to "gross misconduct" (the standard in the misconduct policy governing terminations in less than one year); and imposed a dismissal and termination of tenure effective in two weeks. Finally, paraphrasing appendix F, he advised: "either the complainant or the respondent may appeal the evidentiary findings of the investigator, the remedy or corrective action, if any, ordered by the provost, or both," and that SCU's president "is the designated person [to] handle an appeal."
The provost's "finding" that misconduct occurred is consistent with section 3.9 of the faculty handbook, which requires that the provost form a "judgment" as to whether a faculty member engaged in "misconduct." By contrast, the harassment policy limits the role of the provost to choosing a remedy based on the investigator's findings. When asked at the FJB hearing why he took the steps he did, Jacobs paraphrased obligations found in both policies.
Heineke appealed to SCU's president, Fr. Michael Engh. As provided in appendix F of the handbook, Engh consulted with Doe, Heineke, the dean of students, and a member of the FJB, Professor Lawrence Nelson. Engh ruled, "ln accordance with [the harassment policy], I have reviewed your appeal. [¶] . . . [¶] . . . I affirm the evidentiary findings . . . [and] remedy of termination ...."
Heineke also filed a federal action for injunctive relief to restrain SCU from suspending and terminating him.
Jacobs emailed Heineke, stating, "Pursuant to Sect. 3.10.2.3 . . . you have 30 days . . . to bring a petition to the [F]B]." Jacobs's email did not identify any provision of the handbook authorizing Heineke to petition the FJB to review a decision of the president and, as noted above, we are aware of none (see ante at p. 12 &fn. 6).
5. Prehearing Communications Regarding Appeals Procedure
Heineke petitioned for review, asserting that his "appeal should be heard and decided by the hearing committee of the [F]B]," citing to harassment policy section F.1. The FJB appointed a five-member hearing committee. It included Professor Greg Corning, who handled prehearing communications, and Professor Nelson.
Heineke's attorney cited policy 311, section F.1. Policy 311 was the title of the harassment policy posted on SCU's human resources webpage, substantially identical to the version in appendix F of the faculty handbook.
In December 2017, Corning sought counsel's "view on a possible conflict of interest" for Professor Lawrence Nelson-who before the hearing committee was selected, had provided Fr. Engh "general advice" about "fair appellate procedure"; Corning asked whether Nelson should recuse. The consultation concerned Engh's review of Jacobs's ruling (not the FJB hearing) and did "not concern[] the specific facts of this case." Heineke's counsel responded, "Professor Heineke waives any conflict of interest and does not object to Professor Lawrence Nelson being on the hearing committee."
Corning also inquired regarding an "apparent incongruity" between subsection 3.10.2.3 of the faculty handbook and the harassment policy regarding the "effect" of the hearing committee's decision in this case. The inquiry reflected the FJB's assumption that this case was being heard pursuant to appendix F. SCU responded, explaining why the FJB's decision would be final pursuant to appendix F.Heineke objected that FJB guidelines provide that in section 3.9 misconduct proceedings, the provost-but not a professor-may appeal the FJB's decision to the board of trustees (a sort of "heads I win, tails you lose" provision). To avoid that unjust provision, he argued, the FJB should treat this case as a "sexual harassment case" being heard pursuant to appendix F (at least for purposes of finality), so the decision would be final as to both parties.
In March 2018, a week before the hearing, Corning wrote that the hearing committee would "hear the case under the rules laid out in the faculty handbook and [harassment policy]; it will not consider any objections to, or any form of collateral attack on, these rules. [¶] Per section 3.10.2.3 . . ., the committee will decide whether the petitioner has demonstrated by a preponderance of the evidence that he did not violate the [harassment policy]." Although the burden of persuasion was placed upon Heineke, he did not object or ask the FJB to reconsider its stance.
6. The FJB Hearing
The FJB conducted a three-day hearing at which Guthrie, Henry, Jacobs, Doe, and Heineke testified. Heineke denied Doe's accusations except to admit having demonstrated, at her request, the French method of greeting by pressing cheeks and, when invited by Doe, engaging in platonic hugs. When asked why he kept urging her to be his TA even after she fabricated accusations of gross sexual harassment, he said classes were starting in days and he "had no one to go to." On cross-examination, he admitted to finding a replacement in about two weeks.
Doe repeated her allegations of September 2015. She denied having asked Heineke to show her "how to hug the American way" or "kiss the French way." On cross-examination, she testified that she sent friendly emails and continued to visit Heineke's office because she desired a good grade and had questions only he could answer and that, later, Heineke had offered help with another course in which she had trouble and a job that would look good on her resume. As for her initial failure to answer Heineke's increasingly urgent emails as the fall term drew near, and her eventual reply both stating that she was too busy and accusing Heineke of sexual harassment, Doe testified that she felt "conflicted" and "struggling." She wanted to be a TA, but had felt great when freed from the harassment over the summer; when Heineke began sending her multiple emails, she felt that her "nightmare [was] coming back."
In addition, Henry was examined and cross-examined as to the process of investigating Doe's claim and preparing his report. For the FJB's consideration, both Heineke and SCU submitted, inter alia, copies of Henry's April 2017 memorandum, June 2017 report, and August 2017 addendum, including the attached emails; Heineke also submitted copies of his July 2017 written critiques of the initial report and his August 2017 response to the addendum.
Heineke submitted 52 written exhibits, including several declarations, SCU submitted 32 (albeit with significant overlap between the two sets), and both parties submitted post-hearing briefs.
7. The FJB's Decision and Heineke's Termination
The FJB affirmed SCU's finding of harassment and its decision to dismiss Heineke. It began by summarizing its view of the burden of persuasion: "The Faculty Handbook . . . place[s] the burden of persuasion on the party 'invoking the Board's jurisdiction,' which in this case, is Professor Heineke. Section 3.10.2.2(12) . . . further specifies that this burden 'shall be satisfied only by a preponderance of the evidence.'" Thus, the hearing committee's "task is to . . . determine whether Professor Heineke has demonstrated by a preponderance of the evidence that he did not violate the [harassment policy]." Later in the decision, it observed that "if we were to find Doe and Heineke equally credible, or if we could not determine . . . who was telling the truth, we would be compelled to uphold the provost's finding with respect to liability."
The decision summarized Doe's testimony, finding her to be "articulate, forthright, and confident" and "not . . . difficult to believe," and Heineke's denials of nearly all of Doe's allegations. The FJB then found Doe's testimony to be "compelling and credible" and more convincing than Heineke's testimony, much of which it doubted. By way of example, the FJB cited Heineke's statements and conduct following Doe's purportedly false accusations: "We found it doubtful . . . that a professor confronted with a student making allegations of gross sexual misconduct [that were] completely fabricated [and came] as a total shock . . . would in the immediate aftermath of such allegations continue to urge that student to serve as a [TA]." In addition, "[f]or a professor of Heineke's experience and stature," his claim that he had little choice but to encourage Doe to stay on as TA because he could not find a replacement "beggars credulity." The "more obvious explanation" is that Heineke's conduct was not fabricated by Doe, only that he "interpreted [it] very differently."
The FJB acknowledged two potential sources of ambiguity. First, "over the course of the several months [when Doe] says she was suffering sexual harassment . . . she found disgusting and upsetting, she nevertheless repeatedly sent friendly, convivial e-mail messages to [Heineke], many of which contained 'smiley face' emojis, others of which . . . suggest[ed] meetings . . . in his office, or . . . for lunch at restaurants off-campus." Although the tenor of her emails was surprisingly "affectionate," the FJB credited Doe's explanation that she "wanted to maintain a good relationship with her professor" and "hoped to secure a [TA] position despite the harassment." Thus, in the FJB's view, the emails did not tip the balance in Heineke's favor.
Second, the FJB addressed Heineke's assertion that Doe was impeached by a prior statement that, as reported by Henry, she felt an "erection" when Heineke (who for medical reasons was incapable of an erection) hugged her. As Doe denied using the word "erection" and Heineke could not prove otherwise, the FJB concluded "that likely Henry, not Doe, . . . introduced the term 'erection' into this matter" by inaccurately paraphrasing her interview statement.
The FJB also rejected Heineke's procedural objections. It disagreed that Guthrie's failure to disclose her paid work for Henry's employer, NCHERM was a material conflict of interest. While it "would have been better for Guthrie to have hired a firm with which she had no professional association" or to have disclosed the relationship, the FJB denied that this presented "a genuine problem" because it "heard from [Doe] and Heineke directly, and did not rely substantially on Henry, his findings, or [his] conclusions." The FJB also rejected Heineke's claim that SCU or Guthrie "had [a] pre-existing bias against him."
Two of the five committee members, while "firmly in accord" with the decision, wrote separately to voice "concern with certain aspects of the process" involving an "element of unfairness, or backwardness." Specifically, Heineke was unable to confront or question his accusers while Henry and Jacobs made the findings under review; thus "he has enjoyed those rights. . . only after he has lost the presumption of innocence, and must instead prove that he did not do what [SCU] concluded he did." Because the concurring members did not believe this yielded a "clearly wrongful" outcome, they nonetheless voted to affirm "pursuant to the standards we are duty-bound to apply."
Heineke then objected to the FJB's decision as "fundamentally flawed" as "premised on an incorrect burden of persuasion (proof)," contrary to sections 3.9 (misconduct) and 3.10.2.3 (FJB guidelines) which place the burden on SCU. Corning responded that the FJB had clearly stated where the burden would lie before the hearing, without objection by Heineke, and in any event that the harassment policy placed "the burden . . . upon the party invoking the jurisdiction of the FJB."
In May 2018, SCU terminated Heineke.
8. Civil Litigation
In July 2018, Heineke filed an administrative mandamus petition,followed by a civil action against SCU and Doe for damages and injunctive relief. In the latter action, he asserted three causes of action against SCU, only: wrongful termination in violation of the public policy against age discrimination stated in the Fair Employment and Housing Act (FEHA) (Gov. Code, § 2940, subd. (a)), denial of a state constitutional right to due process (Cal. Const., art. I, § 7), and breach of contract. Against both SCU and Doe, he alleged a cause of action for defamation. And against Doe, alone, he claimed intentional infliction of emotional distress.
a. The Administrative Mandamus Proceeding
The trial court heard argument on the petition in August 2019. Heineke urged the court to review his and Doe's video recorded FJB testimony. After doing so, the court issued an order in January 2020 denying the petition.
The court assessed de novo whether the FJB afforded Heineke a fair trial. (Doe v. Regents of the University of Calif. (2016) 5 Cal.App.5th 1055, 1072-1073.) As for whether the evidence supported its factual findings, although the appropriate standard of review depended on the whether the right at issue was "fundamental" (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1056-1062 (JKH)), the trial court sidestepped this issue by assessing the evidence using its independent judgment (the standard less deferential to the FJB and more favorable to Heineke) and concluded the evidence sufficed under either standard.
Although Heineke's "particular legal claims . . . concerning the failure of SCU to have proceeded in a manner required by law or to have conducted a fair trial" were less than clear, the court pledged to "address the arguments it can discern," starting with Heineke's claim that the FJB erred by placing the burden of persuasion on him. That claim, it found, was limited to an assertion that the FJB proceeding had been governed by section 3.9 "without explaining why." The trial court rejected this argument: after alluding to a possible forfeiture due to Heineke's failure to object until after the FJB hearing, the trial court ruled that it agreed with the FJB's conclusion as to who bore the burden of proof under the handbook's provisions. The court also rejected Heineke's claims of bias (for failure to cite any evidence of bias) and that he was unfairly prevented from examining the unnamed witnesses quoted in Henry's report (as the FJB disclaimed substantial reliance on the report).
Independently weighing the evidence, the court concluded that Heineke had not "carried his burden of showing that the weight of the evidence overcomes the [F]B]'s decision." It found "spot on" the FJB's conclusion Heineke's explanations were not credible. It "independently agree[d]" with the FJB that Doe's reasons for maintaining friendly relations with Heineke in the face of harassment were plausible. Accordingly, the trial court denied Heineke's demand for writ relief. After entry of judgment, Heineke timely appealed.
b. The Civil Action
Heineke filed his civil complaint in August 2018. In May 2019, the civil case was temporarily stayed pending resolution of the mandamus proceeding. Discovery motion practice commenced in November 2019. In February 2021, defendants filed a motion for summary judgment set for hearing on June 17. The motion relied on declarations by Henry, Guthrie, and Vice-Provost Ed Ryan (who described curriculum changes and hiring of new instructors after Heineke's dismissal).
On June 1, Heineke filed an ex parte application for continuance pursuant to section 437c, subdivision (h) to permit further discovery, which was opposed. On June 3-4, Heineke filed his opposition to the motion for summary judgment. On June 8, the court denied the application, finding Heineke did not "adequately explain why the request to continue was not made earlier or specify the exact evidence he believes additional discovery [will] produce or articulate how that evidence will assist him in opposing the pending motion."
On June 9 and 10, Heineke filed various errata. On the hearing date, the court sua sponte issued an order continuing the hearing to July 8. The order did not authorize further briefing but, on June 24, Heineke further "updated" his opposition which defendants moved to strike. On July 2 Heineke renewed his request for continuance.
On July 8, the court heard argument on both the request for continuance, which it denied, and the merits of the motion for summary judgment, which it took under submission. Ultimately, the court declined to consider Heineke's June 24 updates and granted summary judgment. After entry of judgment, Heineke timely appealed.
DISCUSSION
I. Administrative Mandamus Appeal (A165818)
The Code of Civil Procedure permits a superior court to review "any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer." (Code Civ. Proc., § 1094.5, subd. (a).)
Undesignated statutory citations are to the Code of Civil Procedure.
No party disputes that the FJB's decision was subject to such review. (See Anton v. San Antonio Community Hospital (1977) 19 Cal.3d 802, 816 (Anton), superseded in other part by statute as noted in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 678, fn. 11 [section 1094.5 applies to private entities' adjudications if required by law]; Teacher v. California Western School of Law (2022) 77 Cal.App.5th 111, 116, 127-128 (Teacher) [citing authorities assuming that common law fair process doctrine compels private colleges to hold hearings before sanctioning students for misconduct, and that section 1094.5 authorizes review of such hearings].)
A writ may issue upon a showing that the respondent "proceeded without, or in excess of, jurisdiction," failed to provide "a fair trial" (i.e., a fair hearing), or committed a "prejudicial abuse of discretion," which occurs if it "has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (§ 1094.5, subd. (b).) Heineke does not contend that the FJB lacked jurisdiction or that its findings do not support its decision. We review de novo whether SCU provided a fair trial or prejudicially failed to proceed in a manner required by law (Doe v. Regents of University of California, supra, 5 Cal.App.5th at pp. 1072-1073; Schreiber v. City of Los Angeles (2021) 69 Cal.App.5th 549, 554), and we review for substantial evidence whether the evidence supports the challenged factual findings (JKH, supra, 142 Cal.App.4th at p. 1058). This case involves only one challenged finding, namely, that Heineke did sexually harass Doe.
Typically, before reviewing whether the findings in an administrative mandamus appeal are supported by the evidence, we must determine whose findings to review-those of the administrative agency or of the trial court. The answer turns on whether the right at issue is considered "fundamental," and thus, what standard of review the trial court employed. (See JKH, supra, 142 Cal.App.4th at p. 1058 [if right is "fundamental," trial court exercises independent judgment to assess whether weight of evidence in administrative record supports agency's findings, and appellate court reviews trial court's findings for substantial evidence; otherwise, trial court reviews administrative record to determine if substantial evidence supports agency's findings, and appellate court performs identical review of agency's findings].) Here, the trial court declined to decide if Heineke's right to tenure at a private university was "fundamental," instead concluding that, whether it assessed the evidence under the substantial evidence or independent judgment standard, the outcome was the same. Further, SCU and the trial court made the same critical factual finding on the same record, and whether a given record contains substantial evidence to support a finding is a question of law. (Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478, 1516.) Accordingly, whether or not Heineke's right was "fundamental," we need only determine whether the finding that he committed sexual harassment was supported by substantial evidence in the record before the FJB. Heineke, citing Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824, suggests that the trial court used the "wrong burden of proof." He misunderstands Fukuda and the proceedings below, which have nothing to do with one another. Fukuda concerned an error in allocating the burden of persuasion in the trial court, not before the administrative agency. In Fukuda, the Supreme Court clarified that, even when a trial court uses independent judgment to review administrative findings, it still must "afford a strong presumption of correctness concerning the administrative findings, and the party challenging [them] bears the burden of convincing the court that [they] are contrary to the weight of the evidence." (Id. at p. 817.) Here, the trial court properly placed the burden of persuasion in this administrative mandamus proceeding on Heineke, as the petitioner, to show that SCU's findings were against the weight of the evidence. That is what Fukuda unambiguously requires, whether the court reviews the administrative findings for substantial evidence or using its independent judgment. (Ibid.) While Heineke has a colorable argument that the FJB erred in allocating the burden of persuasion, the trial court plainly did not.
A. Procedural Issues (Failure to Provide a Fair Trial and Prejudicial Failure to Proceed in Manner Required by Law)
Heineke identifies a number of purported procedural defects without specifying whether they rendered his hearing "unfair" or constituted a "failure to proceed in the manner required by law" (i.e., to abide by handbook procedure). (§ 1094.5, subd. (b).) Nor do his cited legal authorities clarify his position.
SCU concedes it had to follow the Faculty Handbook in adjudicating this matter. (Cf. Teacher, supra, 77 Cal.App.5th at p. 116 [While the "contours of the common law right to 'fair process' [citation] in private university student disciplinary settings [are] both unsettled and evolving," "one component of the right to fair process is well established . . .: 'Where student discipline is at issue, [a] university must comply with its own policies and procedures.' "].)
As the "fair trial" and "failure to proceed as required by law" claims involve similar legal concepts and common factual issues, we consider them, to the extent Heineke has raised them, together. Importantly, the "fair trial" prong of section 1094.5, subdivision (a) does not appear to be subject to a prejudice requirement.
1. Allocation of Burden of Persuasion
Primarily, Heineke contends the FJB wrongly placed the burden of persuasion on him. As we have noted, however, other than claiming the Handbook provisions required the burden of proof to be placed on SCU, Heineke has not provided reasoned argument or relevant authority to support any "unfair trial" claim. We decline to develop his arguments for him, and deem that contention forfeited. (See, e.g., Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521 (Sviridov) [" '" 'When an appellant [asserts a point] but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeited].'" [Citation.] "We are not bound to develop appellants' arguments for them." '" (Fn. omitted.)].)
In our view, the leading authority on this issue in the "fair trial" context is Anton, supra, 19 Cal.3d 802. Anton involved a doctor's claim that a private hospital violated his common law right to fair process by placing the burden on him to show that charges supporting a suspension of privileges were unfounded. (Id. at pp. 828-830.) A hospital bylaw made it" 'incumbent on the person who requested the hearing [to review the charges] to initially come forward with evidence in support of his position," and stated," 'after all evidence has been submitted by both sides, the [review committee] shall rule against the person who requested the hearing unless it finds that said person has proved, by clear and convincing proof, that the action of the committee or body whose decision prompted the hearing was arbitrary, unreasonable, or not sustained by the evidence.'" (Id. at p. 828.) The Supreme Court held that the bylaw placing the burden of proof on the doctor did not violate the fair procedure doctrine, which is satisfied by any process giving a party a "fair opportunity" to "present [their] position," and observed that the bylaws in that case contemplated a substantial evidentiary showing by the hospital. (Anton, supra, 19 Cal.3d at pp. 829-830 & fn. 28.) Under Anton, a private entity may impose the burden of persuasion on a person facing expulsion so long as its rules do not enable it to level charges unsupported by substantial evidence and rely solely on the burden to prevail. (Ibid.) Heineke challenges the sufficiency of the evidence to support the FJB and trial court's decisions, but he does not argue the faculty handbook's provisions failed to require a substantial showing by SCU, depriving him of a fair trial. And, as discussed in section I.B, post, SCU provided ample evidence to the FJB in support of its contention that Heineke should be terminated, evidence we find qualified as "substantial." The rule of Anton compels us to reject Heineke's argument that allocating the burden of persuasion to him rendered the trial unfair.
Turning to whether the allocation of the burden entailed a failure "to proceed in the manner required by law" (§ 1094.5, subd. (b))-that is, a prejudicial failure to comply with the faculty handbook-we find that the FJB did not commit error by proceeding as if this was a "sexual harassment" case under appendix F; and even if there was some erroneous application of the handbook provisions, Heineke has not demonstrated any resulting prejudice.
First, we address Heineke's contention that, as he was a faculty member whose tenure SCU tried to revoke for "misconduct," this "was clearly a case of dismissal of a tenured faculty member under § 3.9.2.2 for 'misconduct or cause'" and Doe's allegations should have been resolved under, and solely under, the "misconduct" provisions. He is incorrect. Heineke does not cite to any handbook provisions supporting his position. Further, section 3.10.2.3, item 6, which governs the effect of FJB decisions-which Heineke himself invoked to argue that the FJB decision should be final- acknowledges that an FJB hearing committee can adjudicate cases "pursuant to the policy on unlawful harassment and unlawful discrimination, including any case involving dismissal and termination of tenure of a tenured faculty member ...."
Heineke contends that section 3.9 of the faculty handbook applies more "exactly" to this case because it governs only termination of tenured faculty for misconduct, while the harassment policy prohibits non-"terminable" conduct and applies to the entire university community, not just tenured faculty. While we agree that where two contractual provisions conflict, the specific provision controls, California Union Square L.P. v. Saks & Co. LLC (2021) 71 Cal.App.5th 136, 143, this canon of construction could equally or more plausibly lead us to conclude that appendix F more "exactly" fits a sexual harassment case than section 3.9, which broadly applies to any form of misconduct by a tenured faculty member, including academic misconduct, and also to "diminished fitness."
As sexual harassment plainly qualifies as "misconduct," and the faculty handbook provides no guidance as to which set of procedures to use, some confusion may have been inevitable, but to the extent there was any error, we find it did not prejudice Heineke.
First, as far as process, Heineke received many of the benefits of both sets of procedures. First, SCU undertook an investigation of Doe's 2015 harassment complaint, as contemplated by the harassment policy, and an investigator made a full written report, which was presented to the designated "appropriate university officer"-that is, Provost Jacobs. Then, Jacobs discussed the matter privately with Heineke, as required by section 3.9 of the faculty handbook but not contemplated in appendix F, and he made a finding or "judgment" as to whether Heineke harassed Doe, also in accord with section 3.9 (but not provided for by the harassment policy). Jacobs also determined whether there was "gross misconduct," as required by section 3.9 for a termination of tenure to take effect within less than one year (which he would not have had to do under appendix F).
In his reply brief, Heineke alludes to an argument he made, in passing, to the FJB-that because Doe did not pursue her 2015 complaint and SCU began its 2017 investigation when she was no longer a student, there was no "claim" or "complainant" under the harassment policy. While this might suggest that SCU deviated from appendix F in some way, Heineke did not raise this theory in his opening brief or develop it adequately in his reply; nor did he ever attempt to connect it to the burden of persuasion issue. (Sviridov, supra, 14 Cal.App.5th at p. 521 [failure to support a point with reasoned argument and citations to authority may result in forfeiture]; accord, Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86, 100 [argument forfeited by not asserting it until reply brief and failing to develop it].)
Consistent with appendix F, Jacobs then identified the president as the appropriate appellate decisionmaker to hear any appeal. After the president heard Heineke's appeal pursuant to the harassment policy, the provost invited Heineke to appeal the president's decision to the FJB-a step unauthorized by appendix F but one Heineke could have requested had the matter been adjudicated as "misconduct" under section 3.9 of the faculty handbook. Thus, Heineke received the benefit of yet another layer of process (essentially, a de novo evidentiary hearing). (See ante at p. 12 &fn. 6, p. 17.) Heineke has not shown he was deprived of any procedural protections or entitled to any additional process.
Section 3.9 of the faculty handbook "misconduct" provisions allow for reconsideration by the FJB, whose decision would be final, but not interim appellate review by the president.
Nor has Heineke shown he was unfairly surprised by the procedural sequence followed by SCU. Once the parties agreed to further review by the FJB, the FJB guidelines plainly became applicable and, to the extent there was a dispute regarding the burden of persuasion, it was aired prior to the hearing, without objection by Heineke. The parties also seemed to agree that Heineke's appeal "should be heard and decided" pursuant to the harassment policy, bringing appendix F into play.
Given (1) Corning's admonition that the FJB would not consider objections to or collateral attacks on the rules laid out in the faculty handbook and harassment policy, (2) the trial court's failure to hold that Heineke forfeited or failed to exhaust administrative remedies on the burden-of-persuasion issue, and (3) SCU's failure to make such an argument on appeal, we do not conclude Heineke forfeited the issue.
Even if Heineke had identified a handbook provision requiring the FJB to proceed under section 3.9 rather than appendix F, so that it erred in allocating the burden of persuasion to him, prejudice would not be presumed. (In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736; Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 393.) Heineke has neither identified the applicable legal standard for prejudice in this context nor explained how that standard is satisfied here. For that reason alone, we must also affirm the judgment on the alternative ground that Heineke has not shown, as an appellant must, that any error was prejudicial. (See, e.g., Conservatorship of Farrant (2021) 67 Cal.App.5th 370, 378-379 [" 'The burden is on the appellant to show prejudice.' [Citation.] . . . Appellant does not discuss the issue of prejudice. Accordingly, appellant has failed to carry his burden of showing that the alleged abuse of discretion prejudiced him."], citing Cal. Const., art VI, § 13 and Code Civ. Proc., § 475; see also Sviridov, supra, 14 Cal.App.5th at p. 521 [failure to support argument with reasoned argument and citations to authority results in forfeiture].)
Were we to disregard Heineke's forfeiture of the issue of prejudice, we would conclude there was none. Where the asserted error is a failure to proceed in the manner required by law, in violation of section 1094.5, we ask whether "a different result would have been probable if such error . . . had not occurred or existed" (§ 475)-or more broadly whether the error resulted in a "miscarriage of justice" (Cal. Const., art. VI, § 13; see also York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1189-1190 [where zoning administrator failed to realize he had authority to grant a permit request in part (rather than simply approve or reject) and, thus, failed to proceed in the manner required by law, such error was reversible only if "it is reasonably probable the appellant would have obtained a more favorable result absent the error"]; accord, e.g., Molina v. Board of Administration, etc. (2011) 200 Cal.App.4th 53, 61, fn. 9, citing § 475).
As we have noted, the FJB did not clearly state that it would have ruled in SCU's favor even had SCU borne the burden of persuasion. However, we have little hesitation in concluding that it is far more likely than not that it would have ruled in SCU's favor, regardless, given its emphatic credibility findings and implicit conclusion that the testimony was not in equipoise, to wit: "If we were to find Doe and Heineke equally credible, or if we could not determine either way who was telling the truth, we would be compelled to uphold the provost's finding with respect to liability. [¶] In fact, [we] found [Doe]'s testimony compelling and credible. Professor Heineke's testimony did not persuade us that it was more likely than not that she was lying. We doubted the credibility of much of Professor Heineke's testimony." (Italics added.) The rhetorical device "in fact" signals that the FJB was "able to determine . . . who was telling the truth" and that the evidence was not in equipoise-it favored Doe.
Indeed, because Heineke had not disputed the FJB's prehearing statement that it would place the burden on him (see ante, p. 18), the FJB had no reason to do so.
Further, while we agree with the FJB that there were some "uncertainties in the factual background" which prevent a "perfectly clear picture of what transpired," its opinion, read as a whole, makes clear that this was not a "tie"-the only circumstance under which the allocation of the burden of persuasion could result in prejudice. (Medina v. California (1992) 505 U.S. 437, 449; accord, Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement Sys. (2021) ___ U.S. ___, ___ [141 S.Ct. 1951, 1963] ["burden of persuasion will have bite only when the court finds the evidence in equipoise-a situation that should rarely arise"].) At oral argument, Heineke likened this case to Fukuda v. City of Angels, supra, 20 Cal.4th 805 (a case he cited for a different purpose in his brief; see fn. 17, ante). In Fukuda, the trial court erroneously imposed the burden of persuasion in court on the administrative agency to prove its findings were correct. (Id. at pp. 808, 817.) The Supreme Court held that it could not find this error harmless because "the trial court relied repeatedly upon the [agency]'s failure to [bear] its burden of proof" and "stressed that, with regard to [a crucial factual issue], the evidence was 'evenly balanced, and the party having the burden of proof loses.'" (Id. at p. 824.) Fukuda was thus the rare case in which the allocation of the burden of persuasion affected the outcome-that is, a case in which the reviewing court concluded that the factfinder found the evidence "evenly balanced," a conclusion we cannot reach here. Thus, the allocation of the burden, if erroneous, did not prejudice Heineke.
In addition to the passage quoted in the preceding paragraph, the FJB described Doe as "articulate, forthright, and confident" and "not . . . difficult to believe." As for Heineke, it described his conduct as difficult to square with his claims of innocence-namely, that immediately after being "confronted with a student making allegations of gross sexual misconduct [that were] completely fabricated [and came] as a total shock," he nonetheless "continue[d] to urge that student to serve as a [TA]"-and found that his explanation that he could not quickly find a replacement "beggars credulity."
As such, there is no basis to conclude that the allocation of the burden of persuasion resulted in any "miscarriage of justice." We do note, however, that even the (nonlawyer) FJB members who concurred in the majority opinion to express their concern regarding the allocation of the burden of persuasion concluded that the procedural sequence did not yield a "clearly wrongful" outcome. We agree.
2. Other Procedural Defects
Heineke's other process-related complaints are likewise unavailing. He claims that Nelson had a "conflict of interest" requiring recusal because he provided Engh with general advice concerning appellate procedure before Engh considered Heineke's appeal. However, after having been advised of this, Heineke affirmatively disclaimed any objection to Nelson's service on the hearing committee. Now, Heineke contends that his waiver was neither "knowing" nor waivable. However, he has not identified (1) facts giving rise to a "conflict," (2) any material omission in SCU's disclosure or (3) authority or a faculty handbook provision barring express waivers of known, potential conflicts. (See Sierra Watch v. County of Placer, supra, 69 Cal.App.5th at p. 100 [undeveloped argument asserted in reply brief is forfeited]; Sviridov v. City of San Diego, supra, 14 Cal.App.5th at p. 521 [point unsupported by reasoned argument or citation to authority is forfeited].)
Heineke also argues that Nelson exhibited bias when he limited Heineke's cross-examination of Doe. Heineke has not, however, pointed to specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias. (Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 741.) He relies upon adverse rulings, in which the chair properly restrained inquiry into matters that were attorney/client privileged, beyond the witness's personal knowledge, or irrelevant. It is well established that adverse rulings alone, even erroneous ones, cannot establish judicial bias (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 673674), particularly in the administrative context (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1027) and even more so in administrative cases involving a common law right to fair process, not a constitutional right to due process (Natarajan v. Dignity Health (2019) 42 Cal.App.5th 383, 390, affd. (2021) 11 Cal.5th 1095).
Equally unavailing are Heineke's contentions that SCU's cooperation with Doe, such as their joint representation before the FJB, prejudiced his right to fair process or violated Handbook provisions. If sharing counsel created a potential conflict, Heineke does not explain how it affected his interests. (See, e.g., Moreci v. Scaffold Solutions, Inc. (2021) 70 Cal.App.5th 425, 435-444.) Nor do we agree that precluding Heineke from examining Doe and Guthrie as to the nature of the attorney-client relationship was unfair, prejudicial, or inconsistent with Handbook provisions. The chair's restrictions prevented undue intrusion into the attorney-client relationship and did not prevent Heineke from conveying his view that joint representation undermined Doe's credibility.
Finally, Heineke objects that he was prevented from examining Engh or the seven unnamed witnesses interviewed by Henry. Heineke does not explain the relevance of Engh's testimony. Engh was not a percipient witness to the harassment or the investigation, and therefore, not a "necessary witness" under section 3.10.2.3 (which SCU might otherwise have had a duty to procure). As for Doe's acquaintances, we agree with the trial court that neither the common law right to fair process nor the faculty handbook mandates a right to cross-examine all witnesses, however peripheral. (See, e.g., Teacher, supra, 77 Cal.App.5th at pp. 131-134 [provision giving accused a "right to cross-examine witnesses," including "any person who makes a statement to those investigating the alleged misconduct on which the [p]anel relies in reaching its determination," is subject to "reasonable restrictions" such as "exceptions based on materiality"]; Doe v. Allee (2019) 30 Cal.App.5th 1036, 1069 (Allee) [when "the credibility of witnesses . . . is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may crossexamine those witnesses" (italics added)].) Here, the FJB relied primarily on its direct assessment of Heineke's and Doe's credibility and disclaimed substantial reliance "on Henry, his findings, or [his] conclusions." Fairness did not require that Heineke be able to cross-examine every individual quoted in Henry's report.
3. Substantial Evidence.
Heineke contends that no substantial evidence supports the finding that he harassed Doe. As explained (see p. 26 &fn. 17, ante), we must determine if the administrative record contains substantial evidence to support the finding. (JKH, supra, 142 Cal.App.4th at p. 1058.) "Substantial evidence" means relevant, credible evidence of "solid value" that "a reasonable mind might accept as adequate to support a conclusion." (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584-585.) For the evidence in support of a finding to qualify as "substantial," it need not amount to a preponderance. (Wollersheim v. Church of Scientology (1999) 69 Cal.App.4th 1012, 1015.) In assessing whether a record contains such evidence, we do not isolate and consider only that which favors the finding; rather, we" 'consider all relevant evidence in the administrative record including evidence that fairly detracts from'" the finding. (California Youth Authority, supra, at p. 585.) But we do not reweigh the evidence (id. at p. 584) or "redetermine the credibility of witnesses." (HPT IHG-2 Properties Trust v. City of Anaheim (2015) 243 Cal.App.4th 188, 202-203 (HPT).)
The record contains substantial evidence to support the finding of harassment. Doe's detailed accounts in her testimony to the FJB and in her 2015 emails to Heineke (and, indeed, his responses), if believed, plainly constitute such evidence. Although we agree with the FJB that the evidence did not definitively weigh in favor of one party, we decline Heineke's invitation to re-weigh the evidence and re-assess credibility, a role reserved to the trier of fact, below. (California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th at p. 584; HPT, supra, 243 Cal.App.4th at pp. 202203.)
II. Civil Action Appeal (A165842)
As to summary judgment, we review the trial court's ruling de novo. (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1107.) Summary judgment is proper "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).) "A defendant may make this showing by demonstrating that the plaintiff cannot establish one or more elements of all of his causes of action." (Marshall, supra, at p. 1107.) "We liberally construe the evidence in support of the plaintiff opposing summary judgment and resolve doubts concerning the evidence in his favor." (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 7.)
Heineke's related request under section 437c, subdivision (h) to continue the hearing to permit further discovery, is reviewed for abuse of discretion. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 639-640.) Because our analysis of the request for continuance requires familiarity with the legal and factual issues presented by the motion for summary judgment, we address the merits, first.
Heineke also contends that the court erred in refusing to consider the "updated" opposition papers he filed after the court continued the summary judgment hearing. While we do not think the court's order continuing the hearing can fairly be read to implicitly authorize further briefing, it is immaterial, as nothing in Heineke's June 24 "updated" opposition papers affects our substantive analysis.
A. The Court Did Not Err as to the Causes of Action Against SCU
The trial court concluded that Heineke established no genuine factual dispute material to any of the three causes of action he asserted solely against SCU: wrongful discharge in violation of the public policy against age discrimination, denial of due process, and breach of contract. For reasons we explain below, we agree.
1. Wrongful Discharge in Violation of Public Policy
Heineke alleged SCU wrongfully discharged him by failing to provide a full and fair investigation in accordance with its own policies and procedures, and because SCU did not meet its burden to prove Doe's "fabricated" harassment claims. In the same cause of action, he alleges this - and SCU's decision to replace him with a younger adjunct professor - violated his right to be free of age discrimination.
While the complaint is ambiguous, the parties appear to assume this section of the complaint alleges both a statutory cause of action for age discrimination under FEHA (Gov. Code, § 12965, subd. (c)(3)) and a common law cause of action for wrongful termination in violation of the public policy against age discrimination. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894-896.) In any event, neither party suggests that the burden-shifting analysis of a pretext claim differs for the two causes of action. (See Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 613-615 & fn. 4 [explaining burden-shifting analysis and stating that analyses of statutory and common law causes of action for wrongful termination were the same].)
In support of summary judgment, SCU argued that Heineke had no evidence that his termination was based on his age or that SCU's stated reason for terminating him (i.e., its conclusion he committed sexual harassment) was pretextual. It cited precedent requiring a plaintiff opposing summary judgment to present "specific, substantial evidence of pretext" (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 46), meaning the decision was not just "wrong, mistaken, or unwise," but that it was so implausible, internally inconsistent, or self-contradictory that a reasonable fact finder could find it "unworthy of credence" (Horn v. Cushman &Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807).
SCU also contended, and the court held, that Heineke failed to offer evidence creating a genuine dispute material to whether he was replaced by significantly younger workers, an asserted element of a prima facie case for age discrimination. As we conclude Heineke failed to provide substantial evidence of pretext or discriminatory animus, we need not decide whether he made out a prima facie case.
In opposition, Heineke mainly argued that evidence controverting the truth of Doe's sexual assault allegations created triable issues as to SCU's stated nondiscriminatory reason for termination. He also asserted SCU had a policy of discrimination against older tenured faculty and that the outcome of Henry's investigation was "predetermined."
He also claimed that "SCU changed its reason for firing [him] from sexual harassment to its proven lie that it fired him due to downsizing ('eliminating' his courses) AFTER firing him." As there is no evidence whatsoever that SCU ever claimed that it terminated Heineke because it planned to eliminate his courses, this cannot be evidence of pretext.
The trial court concluded that SCU had made a prima facie showing of a legitimate basis for termination under the faculty handbook for sexual harassment. Heineke had admitted he had no "objective evidence" he was discriminated against or terminated due to his age, and thus failed to create a triable factual dispute as to pretext. The trial court also found that the veracity of Doe's allegations is immaterial to the dispositive question of whether SCU genuinely believed, after conducting an investigation, that Heineke had harassed Doe.
We agree. (Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 109 (Cotran).) Indeed," '[w]hile an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is . . . whether the given reason was a pretext for illegal discrimination.'" (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344.) To establish pretext, an employee must show"' "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' . . . and hence infer 'that the employer did not act for the [the asserted] non-discriminatory reasons.'" '" (Id. at p. 343.) Alternatively, an employee may defeat summary judgment by offering affirmative evidence of discriminatory animus. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 (Serri).)
Heineke made neither of these showings. His claim that SCU had a "policy" of discriminating against older faculty is entirely unsupported by evidence. He relied, first, on his own testimony that he overheard faculty (not administrators) say an older professor ought to retire because students were ridiculing him for "having a difficult time in his classes." However, he testified this conversation was "not serious," he could not identify the older faculty member, and could not recall any details. Second, Heineke mentioned a lawsuit assertedly alleging age discrimination filed against SCU approximately 20 years prior by another professor who had "mentioned" to Heineke that "derogatory comment[s] about [people's] age" were "common" at SCU. Heineke did not provide any evidence regarding the other lawsuit or demonstrate any nexus with the events or issues in this case. Third, Heineke opined (without any support) that "the data would show" that SCU preferred to hire adjuncts over more tenure track faculty. Lastly, Heineke cited his receipt of what appear to be periodic, routine communications regarding the availability of phased retirement; whether these said anything about university policy, however, he admittedly "ha[d] no idea." These conclusory, speculative opinions, which are based upon hearsay, are not evidence of a policy of discrimination and thus do not create a material factual dispute that age-based animus contributed to SCU's decision to terminate him.
Heineke's opposition memo asserted that SCU "was forced to reinstate" that professor and cited in support of this assertion his abovedescribed deposition testimony and a composite "exhibit" of portions of documents which do not establish that this prior lawsuit involved age discrimination claims or that the plaintiff prevailed on his claims; he also submitted his own testimony to the FJB that it should "google" for confirmation.
Heineke also asserted, below and on appeal, that President Engh "told him to his face that he should retire," but the exhibit he cited says no such thing.
Heineke also asserts that Henry and the SCU decisionmakers were from the beginning determined to terminate him, despite knowing he had not committed harassment. In support of this assertion, he cites evidence that SCU had Henry's employer NCHERM "on retainer" to offer sexual-harassment and other training; however, he fails to explain how this business relationship led Henry to fabricate his factual findings. Heineke also critiques Henry's methods of investigation and analysis, specifically, that the initial finding was based upon incomplete email evidence. However, in response to Heineke's objection, Henry promptly reviewed and analyzed the additional emails procured by SCU's IT department, acknowledged that they offered some support to Heineke's position, and then affirmed his prior conclusions. Further, Heineke does not explain how any defects in Henry's report could show that the decision of the FJB, which conducted its own, independent review of the evidence, including the testimony of numerous witnesses, was "predetermined."
In sum, Heineke's "evidence" of pretext consisted of speculation, hearsay, and conclusory argument. "It is not sufficient for an employee to . . . simply deny the credibility of the employer's witnesses or to speculate as to discriminatory motive. [Citations.] Rather it is incumbent upon the employee to produce 'substantial responsive evidence' demonstrating the existence of a material triable controversy as to pretext or discriminatory animus ...." (Serri, supra, 226 Cal.App.4th at p. 862.) We agree with the trial court that Heineke did not produce such evidence.
2. Denial of Due Process (Cal. Const., Art. I, § 7)
Heineke asserted a cause of action for denial of a state constitutional right to due process, claiming that public funding made SCU a state actor and he had a "property interest" in his tenured position.
SCU sought summary adjudication on the grounds it is not a state actor subject to the due process clause. In opposition, Heineke cited Allee, supra, 30 Cal.App.5th at pages 1063-1064. As the trial court reasoned, however, Allee involved a petition for a writ of administrative mandamus in which the petitioner (a student, not an employee) claimed a denial of the common law right to fair process (not the constitutional right to due process). (Id. at pp. 1039, 1058, 1061, fn. 30.) The court held that SCU was entitled to summary adjudication as a private actor not subject to the due process clause.
On appeal, Heineke implicitly concedes SCU is not a state actor, contending only that if a contract with a private university calls for a fair hearing before dismissal, failure to provide such a hearing violates the "right to due process / right to fair hearing." Essentially, he pivots to a "fair process" claim. We agree that Allee and similar, recent authorities could be read to entitle Heineke to fair process. (Teacher, supra, 77 Cal.App.5th at pp. 127128 [collecting recent authorities assuming that fair process doctrine applies to student discipline at private colleges]; Allee, supra, 30 Cal.App.5th at p. 1061 ["For practical purposes, common law requirements for a fair disciplinary hearing at a private university mirror the due process protections at public universities."].) However, as SCU correctly observes on appeal, Heineke's complaint did not plead a cause of action for denial of a common law right to fair process, as opposed to a constitutional right to due process. (See, e.g., Vulk v. State Farm General Ins. Co. (2021) 69 Cal.App.5th 243, 255 [" 'a defendant moving for summary judgment need address only the issues raised by the complaint' "].) He cannot now, on appeal from a summary judgment, seek to amend his complaint to plead a new cause of action. As such, summary adjudication of this cause of action was proper.
Heineke asserts in a footnote that he pleaded a fair process claim. The footnote quotes two passages from his complaint's purported "first cause of action," titled "Injunctive Relief." Injunctive relief is a remedy, not a cause of action. (See, e.g., Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.) And that cause of action merely sought to stay Heineke's termination, pending the resolution of his civil action in the superior court. In any event, nowhere does Heineke's complaint mention the common law doctrine of fair process (or fair procedure, as it is sometimes called). (Potvin v. Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060, 1066-1069.)
3. Breach of Contract
Heineke's complaint alleged that, "as a tenured professor, . . . he can only be terminated for extraordinary cause," and that SCU's termination of his employment "constituted a breach of the contract."
Heineke also alleged a "cause of action" for breach of the implied covenant of good faith and fair dealing. It is well established that a breach of an express term cannot also constitute a breach of the covenant. (Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1644.) In opposing summary judgment, Heineke did not identify conduct that breached the implied covenant and that was distinct from the conduct allegedly violating an express term, and he conceded that the two causes of action were indistinguishable.
SCU sought summary adjudication on the grounds that it had complied with faculty handbook terms permitting termination for "misconduct, which includes sexual harassment." The court accepted SCU's prima facie showing of compliance and held that Heineke offered no evidence of any breach. Rejecting his contention that subsection 3.9.2.2 of the handbook barred SCU from terminating him" 'unless he actually sexually harassed Jane Doe,'" the court observed that subsection 3.9.2.2 in fact authorizes termination" '[w]hen, in the judgment of the Provost, reason exists to dismiss and terminate the tenure of a tenured faculty [member] . . . for misconduct'" (italics added by trial court). SCU offered evidence "that Provost Jacobs, in his own judgment, found reasons existed to dismiss [Heineke]."
While we conclude in the mandamus appeal that SCU in fact proceeded primarily under the harassment policy (see pp. 9-18, 29-31, ante), here in the civil case, on this motion for summary judgment, Heineke and the trial court evidently assumed that SCU had proceeded under section 3.9 of the handbook's misconduct provisions, or that at a minimum section 3.9 limited SCU's power to terminate a tenured faculty member under either set of procedures. We therefore assume, for purposes of evaluating Heineke's breach of contract claim, that section 3.9 of the handbook has some application.
Heineke contends that the court's interpretation renders the contract's tenure clause illusory because "SCU could, as here, simply have its Provost falsely (and/or in bad faith) claim, in his unfettered, subjective 'judgment,' that [a faculty member] committed misconduct, irrespective of whether he actually did." The Supreme Court has already rejected precisely this theory, however. (See Cotran, supra, 17 Cal.4th at pages 102-103 [rejecting the same illusory "just cause" theory espoused in Toussaint v. Blue Cross &Blue Shield (Mich. 1980) 292 N.W.2d 880 and holding that a jury need evaluate the employer's determination of misconduct only for objective reasonableness].)
Heineke also contends the genuineness of SCU's belief he committed harassment is a jury question, citing Cotran, supra, 17 Cal.4th at page 109. Not so. Cotran's "objective good faith" rule, like other "reasonable person" standards, may frequently evade summary adjudication due to triable factual disputes, but when no such issues exist or the facts "admit of only one conclusion," summary adjudication is proper. (See Serri, supra, 226 Cal.App.4th at p. 873.)
As we have discussed above, the evidence firmly establishes that SCU afforded Heineke all of the "process" to which the faculty handbook entitled him (perhaps more). (See pp. 9-18, 31-32, ante)~ This included a lengthy de novo evidentiary hearing before the FJB, culminating in a thorough written decision in which the FJB made credibility findings and explained its reasoning. In our view this constitutes a prima facie showing that SCU concluded that good cause existed to terminate Heineke in "objective good faith," meaning "fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary, or capricious; unrelated to business needs or goals; or pretextual. A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond." (Cotran, supra, 17 Cal.4th at p. 108.)
Heineke, for his part, did not point to any triable factual dispute material to these issues. Although he claims that SCU did not comply with various aspects of the faculty handbook, these are the same arguments that were properly rejected as unsupported by any evidence in the mandamus proceeding (see pp. 27-36, ante). Heineke does not articulate a legal theory or cite any evidence relating to his breach of contract cause of action that we have not already considered and rejected in the mandamus appeal.
Our reasoning should not be misconstrued as a conclusion that the judgment in the mandamus proceeding gives the FJB's finding of harassment, as affirmed herein, issue-preclusive effect in the civil action. After considering the parties' supplemental briefs on this issue, we agree that there can be no preclusive effect until the mandamus judgment is final on appeal. (See, e.g., Contreras-Velazquez v. Family Health Centers of San Diego, Inc. (2021) 62 Cal.App.5th 88, 103.)
B. The Court Erred in Summarily Adjudicating the Defamation Cause of Action as to Doe, but not as to SCU
Heineke claims both defendants defamed him by publishing "to students and other faculty . . . false accusations of sexual harassment." On appeal, Heineke has narrowed the relied-upon defamatory statements to three: As to SCU, the statements in (1) Henry's report and (2) Jacobs's letter finding it more likely than not that Heineke harassed Doe. And, as to Doe, (3) her telling a friend (identified in Henry's report as "Witness No. 2") in spring or summer 2015 that Heineke had harassed her, and showing that friend her accusatory September 2015 emails to Heineke.
In granting summary judgment on this cause of action, the court ruled that Doe's statements in her complaint, the investigation, and the FJB hearing, and SCU's statements in Henry's report and Jacobs's letter, are subject to the litigation privilege (Civ. Code, § 47, subd. (b)) for statements "made in . . . quasi-judicial proceedings"-an absolute privilege that extends to statements prompting an investigation. Heineke does not challenge that ruling on appeal. Thus, this ruling disposes of all defamation claims except those against Doe for her 2015 republications of her accusations to Witness No. 2, which undisputedly predate any complaint or investigation. On appeal, Heineke limits his defamation cause of action as against Doe to those republications, reiterating the argument he made below that they are not subject to any privilege.
The trial court held in the alternative that Henry's and Jacobs's statements are not potentially defamatory statements of fact, but "subjective impressions and opinions of [the] investigation" that are, as a matter of law, non-defamatory statements of opinion. We agree." 'The dispositive question . . . is "whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion." '" (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 970.) Heineke's claim that the findings are statements of fact rests on the idea that they relate to an underlying question of fact-that is, whether certain acts did or did not occur. Henry and Jacobs were considering a factual issue, but their statements constitute opinions as to whose testimony was more credible.
For her part, Doe implicitly concedes that the litigation privilege does not apply to her republications to Witness No. 2 but asserts that "Heineke did not raise that issue in his opposition to the motion for summary judgment." Doe is incorrect: Heineke's opposition did contend that the 2015 communications, having occurred long before there was any litigation, are not subject to a litigation privilege. (In fairness to Doe's counsel, we note that Heineke made the point not under the "no litigation privilege" heading in his opposition, but under its "no common interest privilege" heading. Still, the point plainly applied to each privilege.)
Doe asserts that the communications to Witness No. 2 are subject to a common-interest privilege, which applies to "a communication, without malice, to a person interested therein . . . by one who is also interested" (Civ. Code, § 47, subd. (c)), on a theory that students have a common interest in whether a professor is sexually harassing students. While we are unaware of any authority supporting her position, see Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1119, cited by Heineke, construing the privilege narrowly, we need not resolve this dispute, for, even if the privilege applied, it could be negated by malice. (Barker v. Fox &Assocs., supra, 240 Cal.App.4th at p. 354 ["malice" negating common-interest privilege is" '" 'established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication'"' "].) And Heineke declared under penalty of perjury and testified before the FJB that Doe's accusations, which she republished to Witness No. 2, were fabricated. This creates a triable issue that Doe not only lacked reasonable grounds for believing them true but personally knew, with certainty, that they were false. (See generally 5 Witkin, Summary of Cal. Law (11th ed. 2022) Torts, § 697 ["The privilege is lost if the defendant knows the statement is false"]; Barker v. Fox &Assocs., supra, 240 Cal.App.4th at p. 354 ["malice" is established by proof of" '" 'motivat[ion] by hatred or ill will . . . or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication'"' "].) Furthermore, on summary judgment, SCU and Doe did not attempt to show the absence of triable issues as to the truthfulness of Doe's allegations. Instead, they insisted that their veracity did not matter. Because there are triable issues as to whether some of Doe's allegedly defamatory statements were privileged, we cannot affirm the judgment in favor of Doe- only SCU.
The trial court concluded, in the alternative, that "Doe's harassment complaint to SCU and its response" are protected by a common-interest privilege. That privilege applies to "a communication, without malice, to a person interested therein . . . by one who is also interested" (Civ. Code, § 47, subd. (c)). (See Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 369 [applying privilege to employee statements made to employer during internal investigation of harassment claim].) The trial court did not address whether the common-interest privilege might cover Doe's republications to Witness No. 2. On appeal, Heineke concedes that a common-interest privilege could apply to Doe's communications with SCU but cites evidence raising a dispute as to whether Doe made her statements with malice, which could defeat this qualified privilege. (See Barker v. Fox & Assocs. (2015) 240 Cal.App.4th 333, 354.) We need not decide this issue because the litigation-privilege and statement-of-opinion rationales discussed above suffice to uphold summary adjudication of the defamation cause of action as to all communications by each defendant except for Doe's communications to Witness No. 2.
Doe's motion did not request summary adjudication of individual defamation "counts" against her. (Cf. Blue Mountain Enterprises, LLC v. Owen (2022) 74 Cal.App.5th 537, 549 [upon request, permitting summary adjudication of one of two factually distinct "counts" alleged in a single cause of action for breach of contract]; Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, 1118 [where each cause of action was based upon defendant's unauthorized processing of multiple checks, summary adjudication on grounds that liability was barred due to statute of limitations for select checks was permitted and consistent with § 437c, subd. (f)].) We thus cannot affirm a partial summary adjudication of that cause of action. However, as our application of the litigation privilege to Doe's communications is essential to our affirmance of the summary adjudication of the cause of action for IIED against Doe (see post, pp. 51-53), it may be entitled to law-of-the-case effect on remand. (Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th 827, 838.)
On appeal, Doe asks us to affirm the judgment, insofar as it encompasses that one overlooked claim, on a theory not raised below- namely, that there are "no conceivable damages to Heineke (and his brief addresses none) that resulted solely from Doe telling her fellow student, separate from . . . the SCU investigation and proceedings" about his alleged harassment. As this was not a basis on which Doe sought summary adjudication, below, and not a proposition set forth in her statement of undisputed material facts or established beyond triable factual dispute by her evidence, we decline to consider it.
C. The Court Did Not Err as to the Intentional Infliction of Emotional Distress Cause of Action
Heineke alleges intentional infliction of emotional distress (IIED) against Doe, based on her allegedly false accusations which caused him "emotional distress, mental anguish, deep depression" and other mental harm. A defendant is liable for IIED if, while acting with an intention of causing or a reckless disregard of the probability of causing emotional distress, the defendant engaged in outrageous conduct that proximately caused the plaintiff to suffer severe emotional distress. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) Doe sought summary adjudication of the IIED claim on several bases, including (1) that her conduct cannot, as a matter of law, be deemed "so extreme and outrageous as to go beyond all possible bounds of decency" (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497-499), (2) that it was not her conduct but the investigation and termination that caused Heineke emotional distress, and (3) that the litigation and common-interest privileges bar the cause of action (Rotham v. Jackson (1996) 49 Cal.App.4th 1134, 1140 [litigation privilege bars claim of IIED as well as defamation]). The trial court did not reach the causation argument and granted the motion on the other two grounds- finding Doe's conduct was not outrageous as a matter of law and is shielded by the litigation privilege.
The court based the latter ruling on a statement that Heineke's opposition "failed to address [Doe's] argument regarding privilege, thereby implicitly conceding its merits." Heineke's opposition did in fact deny that the litigation privilege applies to any of Doe's communications, albeit in a way the court mistakenly (if understandably) perceived as limited to the defamation cause of action. On appeal, Doe defends the applicability of the litigation privilege on the merits but does not defend the trial court's mistaken forfeiture ruling.
As discussed above, Heineke does not dispute that the litigation privilege shields all of Doe's statements except the 2015 publications to Witness No. 2; nor does he dispute that the privilege bars claims of IIED as well as defamation. (Rotham v. Jackson, supra, 49 Cal.App.4th at p. 1140.) Thus, his IIED cause of action (like his defamation cause of action against Doe) is effectively limited to the 2015 statements to Witness No. 2.
On appeal, Doe renews her causation argument, asserting that "Heineke's alleged emotional distress is attributable to his termination . . . not what Doe told an unnamed fellow student two years earlier in 2015." We agree. In opposing summary judgment, Heineke did not articulate any way in which Doe's republication of her allegedly false accusations to Witness No. 2 in 2015 caused him emotional distress. He cited evidence that he had suffered "emotional distress at the destruction of his reputation, . . . the loss of the joy of teaching students and the association of his colleagues and friends and the loss of the financial security his job provided," but no facts attribute these harms to Doe's mere publication to Witness No. 2. Similarly, he contends Doe's accusations "led to SCU suspending him . . . and then firing him, which caused additional emotional distress." But the causal connection between Doe's statements to Witness No. 2 in 2015 and these harms is neither apparent, nor articulated by Heineke. (Indeed, his reputational and employment losses plainly flowed from Doe's (privileged) statements to SCU in her 2015 complaint and in the subsequent investigation and adjudication.)
In his opposition below, Heineke also attributed his distress to "people like [his former colleague] Professor Ram believing [Doe's false] accusations and urging SCU to fire him" and to Doe's 2015 accusatory emails, but none of these claims have any connection to the 2015 publications to Witness No. 2.
Even if Heineke had proffered facts supporting causation, his IIED claim would still fail because there is no evidence of non-privileged conduct satisfying the outrageousness requirement. To qualify, conduct must be "so extreme and outrageous 'as to go beyond all possible bounds of decency.'" (Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d at pp. 497-499 &fn. 5.) The conduct must be"' "of a nature which is especially calculated to cause . . . mental distress," '" and it is" '" 'for the court to determine, in the first instance, whether the . . . conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.'" '" (Chang v. Lederman (2009) 172 Cal.App.4th 67, 86-87.)
Heineke offers only one theory of how Doe's conduct satisfies that demanding standard: Her "fabrications and false accusations of sexual harassment, intended to get him fired," constitute 'outrageous' conduct." One could reasonably infer such intent from making such allegations to SCU, which had the power to "get [Heineke] fired, make him a pariah, and cause him to lose the job he loved," as Heineke asserted. However, Heineke has not identified any evidence, direct or circumstantial, suggesting that in disclosing her accusations to a friend and fellow student with no such power, Doe had such an intent. As Heineke himself observed, "Doe was simply trashing [him] to her friend." Without more, we conclude that, with his IIED claim limited to the statements to Witness No. 2, Heineke has demonstrated no dispute of material fact that the conduct at issue was extreme and outrageous. (Chang v. Lederman, supra, 172 Cal.App.4th at pp. 86-87.)
D. The Court Did Not Abuse Its Discretion in Denying a Continuance
If an affidavit shows "that facts essential to justify opposition [to a summary judgment motion] may exist but cannot, for reasons stated, be presented," the court shall order a continuance to permit discovery or take other appropriate action. (§ 437c, subd. (h).)" '[A] continuance (normally a matter within the court's discretion) is "virtually mandated" where the nonmoving party makes the requisite showing. The party need not show that essential evidence does exist, but only that it may exist.'" (Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 517 (Insalaco).)" 'The purpose of the affidavit required by . . . section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]' [Citation.] However, it 'is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist." '" (Insalaco, supra, at p. 518.)
Primarily, we agree with the trial court that Heineke did not identify evidence that may exist, is ascertainable through discovery, and is essential to opposition. (Insalaco, supra, 49 Cal.App.5th at p. 518.) The affidavit submitted by his attorney stated the need "to depose and obtain documents from Jane Doe . . . to show that [her] accusations were false" because her deposition "will reveal that the events never happened, that she fabricated them, that she is not credible, and that her claims are not believable." This strikes us as wishful thinking, not specific factual matter crucial to opposition, particularly after Doe had already held fast to her account under vigorous if abbreviated cross-examination before the FJB. The affidavit also stated that "[a]ll of SCU's grounds for summary judgment, as to each . . . cause[] of action . . ., are based on Defendants' assertion . . . that [Heineke] sexually harassed Doe," but in fact defendants argued and the court held that the veracity of Doe's underlying accusations was irrelevant.
As noted, that holding was correct as to all claims except the defamation claim based on the 2015 republications to Witness No. 2. Because we reverse the judgment as to the cause of action including that claim (ante, pp. 48-52), any possible abuse in denying a continuance is moot insofar as it might have affected that issue.
Heineke also sought testimony and documents from Doe "about SCU having provided her with its own attorneys," which would assertedly "reveal that her . . . allegations of sexual harassment are fabricated by her[, SCU, and their shared] attorneys" to create a pretext of sexual harassment "to hide the real (age discrimination) reason why SCU fired [him]." The notion that Heineke would be permitted to take discovery into attorney/client communications, let alone that such discovery would ferret out the alleged conspiracy, is, at best, fanciful.
We also agree with the trial court's assessment of Heineke's diligence, or lack thereof, in conducting discovery to support his opposition. Heineke filed this action in August 2018. While it was stayed for six months in 2019 pending resolution of the mandamus proceeding, discovery motions resumed in November 2019-some 15 months before defendants filed the motion for summary judgment and 18 months before the continuance request. Heineke then waited two months after defendants filed the summary judgment motion to serve written discovery, and until three weeks before his opposition was due to notice depositions. There is nothing to suggest any of the asserted bases for summary judgment, or means of opposition, took him by surprise. As to the purported conflict of interest for SCU's attorneys (in also representing Doe), this fact was long known to Heineke.
Heineke also claimed the need to depose and obtain documents from Guthrie, Henry, Jacobs, Engh, and Nelson to test SCU's contentions that it had provided him a fair hearing and that it accepted Henry's finding, as affirmed by the FJB, in "objective good faith." Although Nelson had stated that Engh consulted with him-as the harassment policy required-he stated this was only for procedural advice about Heineke's pending appeal from Provost Jacobs to Engh. Heineke speculated that Engh and Nelson had in fact "discussed [Heineke]'s appeal to the FJB" (italics added), which had not even been filed yet, including the merits and desired outcome of that appeal. His proposed discovery would, he asserted, "show that Nelson was biased and not open-minded about the FJB hearing and that he influenced or dictated the outcome at President Engh's direction" and would probe "whether the 'investigation' was really 'independent,' whether the conclusions were predetermined . . . by Guthrie, Eng and Jacobs . . ., and whether each of them really 'believed' that sexual harassment occurred." A speculative hope that this discovery might yield such admissions is not a showing that specific, relevant facts or evidence may exist.
Heineke had not yet noticed depositions of Henry, Jacobs, Engh, or Nelson. He had noticed one of Ed Ryan, whose declaration supported SCU's argument that it did not replace Heineke with younger employees. Because we affirm the judgment as to the wrongful termination cause of action without regard for that theory (see, fn. 30, ante), the propriety of the request as it related to those issues is moot.
Significantly, by the time of the ex parte application, Heineke had not yet deigned to notice most of these assertedly necessary depositions. And while he had noticed depositions for Guthrie and SCU's person most knowledgeable, he then canceled them for tactical reasons which, under these circumstances, do not justify a continuance. In other words, to the extent he had identified any facts essential to opposition (a dubious premise), they could not be presented due to Heineke's own questionable strategic decisions.
After defendants filed their motion for summary judgment in February 18, 2021, for hearing on 119 days' notice on June 17, Heineke waited 82 days to notice a raft of depositions, beginning with Doe's, to be taken from May 24-31, or 3 to 10 days before his opposition was due. After learning that Doe, for medical reasons, could only sit for 45-60 minutes per day of deposition, and thus could not complete her deposition before that of Heineke's other witnesses, Heineke's counsel abruptly cancelled all but one of the depositions (claiming that deposing these other witnesses first could "result in distorted or false testimony" from Doe) rather than at least pursuing discovery that was then available to him, and timely seeking relief as to Doe.
We recognize that there is a split in authority as to whether, and to what extent, a movant's lack of diligence in discovery may support denial of a motion for continuance under subdivision (h). (Braganza v. Albertson's LLC (2021) 67 Cal.App.5th 144, 155, citing Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255.) "That split . . . continues to this day." (Braganza, supra, at p. 155, citing Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 10381039 [no abuse of discretion in denying continuance request where party 'offered no cogent justification for extreme tardiness' in seeking necessary discovery] and Insalaco, supra, 49 Cal.App.5th at pp. 519-520 [noting that the majority of appellate districts have "upheld denials of continuance requests, at least partly on the ground that the party seeking the continuance had had adequate time to complete the discovery" but holding that lack of diligence alone did not justify denial of continuance].) "Cooksey reasoned that, '[a]lthough [section 437c, subdivision (h)] does not expressly mention diligence, it does require a party seeking a continuance to declare why "facts essential to justify opposition . . . cannot, for reasons stated, then be presented." '" (Braganza, supra, at p. 156, quoting Cooksey, supra, at p. 257.) Thus, there" 'must be a justifiable reason why the essential facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not be a valid reason why the facts cannot then be presented.'" (Ibid.) The Braganza court held that a party seeking a continuance "must show why the discovery necessary to oppose the motion . . . could not have been completed sooner." (Ibid.)
We observe, first, that Heineke's lack of diligence in this case was more extreme and inexcusable than that in Insalaco, supra, 49 Cal.App.5th 506, and the circumstances of the weeks leading up to the hearing are more suggestive of a tactic to delay the hearing than a genuine, good faith effort to obtain needed discovery. However, we need not resolve this issue, because Insalaco distinguished between inexcusable delay in taking necessary discovery that was undisputedly essential to opposition, on one hand, and inexcusable delay that prevented a party from making the showing required to obtain a continuance under subdivision (h), on the other, and held that the latter is a fair basis for denial of the request. (Insalaco, supra, at p. 519 [" 'When lack of diligence results in a party's having insufficient information to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under . . . section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion.' "].) As we have explained, Heineke's attorney may have described legal theories he wished to explore, but he failed to identify any nonspeculative basis for the existence of specific "facts essential to justify opposition" (§ 437c, subd. (h)) or a plausible manner of obtaining them. Thus, Heineke's lack of diligence did not only prevent him from taking purportedly essential discovery, it left him with insufficient information to know-rather than wishfully speculate-if "facts essential to justify opposition may exist," and why they would support his opposition. Thus, even under Insalaco, we cannot conclude the trial court abused its discretion in denying the request for continuance.
We do not question the result our colleagues in Division Two reached in Insalaco. In that case, where the dispute turned on whether a church's surface water-drainage system had damaged neighboring property, the church sought summary judgment based upon the opinions of its experts. (Insalaco, supra, 49 Cal.App.5th at pp. 508-511.) Plaintiffs noticed the experts' depositions and sought a continuance to allow for a property inspection and depositions, clearly identifying numerous facts plaintiffs' experts needed to assess. (Id. at pp. 511-512.) In reversing the trial court's denial of the request for continuance, which was based solely on lack of diligence in taking the discovery, Division Two emphasized that the plaintiffs' "detailed declaration . . . could not have been more clear." (Id. at pp. 518-520.) All other factors weighed heavily in favor of granting the continuance. Moreover, the circumstances there did not suggest any strategic reason for delay.
DISPOSITION
In appeal No. A165818, the judgment is affirmed. SCU shall recover its costs on that appeal.
In appeal No. A165842, the judgment is affirmed insofar as it dismisses all causes of action against defendant SCU but reversed as to defendant Jane Doe with regard only to the seventh cause of action for defamation as asserted against her. The matter is remanded for further proceedings limited to that cause of action. SCU and Doe shall recover their costs on this appeal.
WE CONCUR: BROWN, P. J., GOLDMAN, J.
[*] Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.