Opinion
B316038
01-17-2023
SHMUEL LESHEM, Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Respondent.
Shmuel Leshem, self-represented litigant, for Plaintiff and Appellant. Young, Zinn, Pazzani & Sandhu, Julie Arias Young and Karen J. Pazzani for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS167350 Amy D. Hogue, Mitchell Beckloff, and Mary H. Strobel, Judges. Affirmed.
Shmuel Leshem, self-represented litigant, for Plaintiff and Appellant.
Young, Zinn, Pazzani & Sandhu, Julie Arias Young and Karen J. Pazzani for Defendant and Respondent.
KIM, J.
I. INTRODUCTION
Plaintiff and appellant Shmuel Leshem is a former associate law school professor at defendant and respondent the University of Southern California. Defendant denied plaintiff tenure and plaintiff challenged that decision through defendant's internal administrative grievance process. When defendant denied plaintiff's grievance, plaintiff filed a petition for writ of administrative mandamus seeking an order that defendant set aside its grievance decision and reconvene his tenure review using proper policies and procedures. The trial court denied plaintiff's writ petition and entered judgment for defendant. Plaintiff appealed.
On appeal, plaintiff contended that his administrative hearing was unfair; the trial court erred when it denied his motion to compel defendant to produce and augment the administrative record with his tenure dossier as plaintiff's grievance in part concerned the tenure committee's claimed consideration of anonymous referee reports allegedly improperly included in his tenure dossier; substantial evidence did not support the denial of his grievance; and the court erred in sustaining defendant's demurrer to his first and second causes of action. We held the court abused its discretion in denying plaintiff's motion to compel without first reviewing the tenure dossier in camera. Accordingly, we reversed the judgment and remanded the matter with directions that the court (1) order defendant to lodge the tenure dossier under seal with the court and (2) examine the tenure dossier for the inclusion of or reference to referee reports. Following its review, the court found that the tenure dossier did not include referee reports or references to the substance of referee reports and reentered judgment for defendant. Plaintiff again appeals.
Because we held the court erred in failing to review plaintiff's tenure dossier in camera and remanded for in camera review, we did not reach plaintiff's remaining contentions.
In the present appeal, plaintiff contends the trial court erred in failing to review the tenure dossier for references to journal rejections and editors' letters, defendant violated its tenure review policies and procedures and his state constitutional right to privacy when it "misappropriated" his personal and confidential peer review information, and the court failed to exercise its discretion to address defendant's "other violations" of its procedures. Alternatively, plaintiff asks that we address the unaddressed contentions from his first appeal. We affirm.
We deny plaintiff's request that we take judicial notice of certain facts and a proposition "relat[ed] to the ethics and practice of the peer-review publication process" and certain "statements and guidelines of peer-review ethics and process and scholarly articles on peer-review practice" because those materials would not assist our resolution of the issues on appeal. (Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1726 (Pomona College).)
In April 2006, defendant hired plaintiff to serve as an Assistant Professor of Law. Plaintiff's offer letter stated that he was being hired for "a tenure-track, full-time appointment, subject to annual reappointment with a mandatory tenure decision date of May 15, 2012." In 2009, by a vote of the law school faculty, defendant promoted plaintiff to Associate Professor of Law. (Leshem v. University of Southern California (B296102, Jan. 26, 2021) [nonpub. opn.] (Leshem I).)
Around June 2011, defendant began plaintiff's tenure review. Plaintiff's tenure would be voted on by the law school promotions and tenure committee which consisted of the tenured law school faculty. To assist that committee's tenure review, defendant assembled a three-member subcommittee consisting of professors Gillian Hadfield, the subcommittee's chair, Daniel Klerman, and Thomas Griffith. The subcommittee's task was to compile a tenure dossier for plaintiff, prepare a subcommittee report, and discuss plaintiff's tenure candidacy with the promotion and tenure committee. Defendant's University Committee on Appointments, Promotions and Tenure (UCAPT) Manual provides that a tenure dossier "generally consists of the curriculum vitae, bibliography of publications, and statement of support for research . . ., the personal statement . . ., the data in the teaching record . . ., the data in the record of service . . . and the supporting material on scholarship and teaching ...." (Leshem I, supra, B296102.)
Typically, once the tenure dossier and report have been prepared, they are submitted to the promotions and tenure committee. The committee then meets to discuss the matter and votes, by secret ballot, on the tenure candidate. Independently, the law school dean makes a tenure determination. The committee's decision and dean's determination are forwarded to the UCAPT to advise the Provost who makes the ultimate decision. (Leshem I, supra, B296102.)
In plaintiff's case, the law school's promotions and tenure committee, the dean, a UCAPT panel, and the Provost considered plaintiff's tenure dossier and all decided to deny tenure. On May 1, 2012, the law school's dean informed plaintiff that his "limited impact on major fields of law and the trajectory of [his] productivity did not warrant tenure." Further, plaintiff's "scholarship [was] highly skilled technically, but the judgment was that the work, taken as a whole, did not make significant contributions to our understanding of important areas. Additionally, there was concern that [his] earlier years were more productive than [his] more recent ones." (Leshem I, supra, B296102.)
Plaintiff requested reconsideration of defendant's tenure decision. In reconsidering that decision, the tenured law school faculty considered both plaintiff's original dossier and a reconsideration dossier that contained new evidence consisting of additional articles and an editorial board invitation and concluded that the new evidence did not warrant reversing the original tenure decision. The dossiers were then sent to a UCAPT panel for evaluation. That panel's membership was different than the panel that previously recommended against plaintiff's tenure. (Leshem I, supra, B296102.)
The UCAPT panel determined that the new evidence did not meet the concerns held about plaintiff's original dossier. The panel expressed concern about "the limited demonstrated impact of [plaintiff's] scholarship on the field," noting that plaintiff's citation counts were low. The committee members further noted that, "while the models and applications in [plaintiff's] scholarly work were well executed, the assumptions underlying the models were implausible and unsubstantiated, nor was it clear what the outcomes and applicability of the analyses were. It could not be concluded that [plaintiff's] scholarship [had] the significance expected of a candidate for tenure." Accordingly, the panel concluded that "the evidence [did] not meet the established standard for reversing the original negative decision." Based on the panel's evaluation, the Provost decided not to change his original decision to deny plaintiff tenure. (Leshem I, supra, B296102.)
On September 13, 2013, plaintiff submitted a grievance with defendant alleging "exceptional irregularities in [his] tenure review process." On March 10, 2014, plaintiff filed an amended statement of grievance. In his amended grievance, plaintiff claimed that there was "a huge discrepancy between the quality of [his] scholarship and both the process and outcome of [his] tenure review." (Leshem I, supra, B296102.)
Specifically, plaintiff contended that (1) there was bias and prejudgment in evaluating his scholarship and tenure review letters as Hadfield, the subcommittee chair, had "expressed very adamantly a negative opinion of [his] scholarship" at the outset of his tenure review, (2) Hadfield had inappropriately solicited and misused confidential referee reports that had been produced as part of the peer-reviewed publication process-referee reports are not balanced evaluations of scholarly work, but expose and stress errors and weaknesses that can be corrected-and are an inadequate substitute for tenure review letters, (3) defendant failed to provide him with notice that he was at risk of not achieving tenure by alerting him to any significant inadequacies in his scholarship, (4) defendant had not explained the discrepancy between his favorable pre-tenure reviews and his negative tenure review, and (5) UCAPT review was futile as it always deferred to the law school's tenure recommendations and it was not designed to address the tenure committee's misconduct or rectify the substantive and procedural "defects" about which he complained. (Leshem I, supra, B296102.)
On December 8, 2014, plaintiff's grievance hearing commenced. At the beginning of the hearing, plaintiff's counsel stated that plaintiff's request for a copy of his tenure dossier had been denied repeatedly. He moved the grievance panel to order defendant to produce to plaintiff a copy of the dossier. (Leshem I, supra, B296102.)
The panel chair asked defendant's counsel to explain why defendant was unwilling to produce plaintiff's tenure dossier. Counsel responded that "[t]enure dossiers university-wide are confidential, and the UCAPT [M]anual speaks to this at section 1.4." It was not, he explained, the grievance panel's role to review the merits of a tenure decision. Instead, it was to assess whether there had been procedural defects that materially inhibited the review process. Therefore, the dossier's contents were not relevant. (Leshem I, supra, B296102.)
The grievance panel chair stated, "[T]he way in which the dossier was assembled seems to me at the core of the issue that we are dealing with today. And if getting the dossier can shed light on that process, it would be useful for us." He observed, "I don't know if this panel has the power-we may certainly ask for the dossier, but I don't believe we have the power to insist upon it." (Leshem I, supra, B296102.)
After the panel conferred, the panel chair stated, "[W]e have agreed unanimously that we would like to see the tenure dossier before the hearing commences. We agreed that to make the most effective use of the witnesses' times, we would like to examine the document before we hear witness testimony." (Leshem I, supra, B296102.)
Defendant's counsel explained that plaintiff's counsel's request for a copy of plaintiff's tenure dossier previously had gone to the Provost's office and defendant refused to produce the dossier. He stated that he had no reason to believe defendant would change its decision. Counsel added, however, "[I]f that's your instruction, we will certainly take this back. But it is not something that there is going to be a resolution to today." (Leshem I, supra, B296102.)
The grievance panel chair responded, "We understand that, but that is our instruction. We feel that to adequately hear this case, to understand all of its contours, to represent our-to render our judgment in the most responsible way, we believe we need to see that documentation." Defendant's counsel asked the panel chair if the panel's request was that plaintiff's tenure dossier be produced to plaintiff and the panel or just the panel. The panel chair responded that it was the panel's recommendation that the dossier be turned over to the panel and plaintiff. The panel chair noted that the hearing would have to be continued to a later date, stating, "It's regrettable, but I don't see any other way." (Leshem I, supra, B296102.)
On December 19, 2014, Interim Provost Michael Quick wrote to the panel chair that he would be willing to turn over plaintiff's tenure dossier to the grievance panel for its review on a confidential basis. Quick explained that the integrity of the tenure process-candid evaluations depend on confidentiality- requires that tenure candidates not have access to their tenure dossiers. He stated, "The journal referee reports [plaintiff] complains about are not part of the dossier." (Leshem I, supra, B296102.)
On February 19, 2015, the Provost's office sent an e-mail to the grievance panel chair stating, "[A]t this stage the dossier is not evidence and is not to be relied on in making your ultimate recommendation on the grievance. If, after reading the dossier, the panel believes that it contains references to the anonymous referee reports or other 'necessary' evidence pertinent to the grounds [plaintiff] enumerates in his grievance, you may make a confidential request to the provost to release the specific material you deem 'necessary' to resolve the grievance. Provost Quick would then decide whether (and under what conditions) any portion of the dossier can be released." (Leshem I, supra, B296102.)
Prior to the resumed grievance hearing on March 27, 2015, the grievance panel "unanimously agreed that the hearing could resume without the introduction of the dossier into evidence." When the hearing resumed, plaintiff's counsel stated to the panel chair, "I understand there was an in camera review of certain documents, and I would like to know what happened." The panel chair responded, in part, "[T]he three panelists conducted, as you noted, an in camera review of the documents that were made available to us by the [P]rovost's office. And we did not find documents that we believe would alter the course or would be necessary to the exam in order to have a fair and reasonable hearing about the matters at hand. (Leshem I, supra, B296102.)
"We take the grievance and issues very seriously, and we wish to explore them with the witnesses; but we do not-we concluded that it is not necessary to interrupt the proceedings today and demand for the grievant to have access to the documents." (Leshem I, supra, B296102.)
Plaintiff's counsel reiterated his objection that defendant had not produced plaintiff's tenure dossier in response to his request and to the panel's "order." He further objected that the panel had reviewed the dossier and he had not-a violation of the faculty handbook provision that each party had the right to inspect and respond to all written and documentary evidence offered at a grievance hearing. The panel chair responded, "The panel originally asked for . . . [defendant] to turn over the dossier to us. The terms that . . . [defendant] gave us were that we panelists would gain access to it and we could then, as we understood it, make a ruling about whether this material would be necessary in order to have a reasonable hearing. We have looked at the documents, and we have made our decision. You have noted many times that we are responsible for evidentiary decisions, and this is our decision. And we are ready to proceed and go forward now." (Leshem I, supra, B296102.)
On April 16, 2015, after hearing testimony and taking evidence, the grievance panel unanimously rejected plaintiff's request for a new consideration of his tenure case. In its report and recommendation, the panel addressed plaintiff's contention that Hadfield had improperly solicited and misused the peerreview referee reports. It noted defendant's response that Hadfield requested the reports to help her "'understand and anticipate'" potential critiques in external reviews and, while Hadfield had discussed the referee reports with her fellow subcommittee members, the referee reports played no role in the faculty-wide discussion of plaintiff's tenure candidacy. (Leshem I, supra, B296102.)
The grievance panel found Hadfield's request of plaintiff that he share his referee reports with her "irregular," and "her defense puzzling." Because Hadfield was a highly accomplished scholar in a related field, she should not have had to rely on referee reports to form a judgment about or to anticipate a critique of the merits of plaintiff's work. Defendant had clearly established, however, that the referee reports were not shared with the tenure committee. (Leshem I, supra, B296102.)
The grievance panel noted that Hadfield testified that the subcommittee report merely included a note that one of plaintiff's articles had received a "'revise and resubmit'" response from a journal editor. The grievance committee rejected testimony from plaintiff's witness, University of Southern California law school professor Andrei Marmor, that the referee reports played a role in the tenure committee's discussion of plaintiff's tenure candidacy, and accepted Klerman's and Hadfield's controverting testimony. Klerman testified that during the tenure committee's discussion, he had commented on the "inscrutability of external tenure letters and the fact that referee reports [were] written by experts in a candidate's specific research area, noting therefore that referee reports can be seen as a more useful, more objective standard." Hadfield had confirmed that Klerman made a general point and had not revealed the contents of the referee reports. The panel concluded that there "were in fact procedural irregularities in the compilation of [plaintiff's] dossier, but . . . [those] irregularities did not have any impact on the law school tenure committee's deliberations or conclusions." (Leshem I, supra, B296102.)
The grievance panel also addressed plaintiff's claim that defendant never warned him that there were serious concerns about his tenure case. It set forth plaintiff's testimony that Hadfield had selected him to present her work to the law faculty in a September 2011 workshop, having told him in June 2011 that he understood her work better than any of their colleagues. Just days after his very successful presentation of Hadfield's work, plaintiff was called into a meeting with the law school dean, the law school vice dean, and Hadfield and advised not to go through the tenure process. The meeting came as a complete shock to plaintiff as his annual reviews had only been positive, and no one had ever urged him to alter his professional course or raised a substantial concern about his achieving tenure. The panel noted that in response, defendant had introduced two memos documenting meetings between Klerman, in his capacity as Associate Dean for Academic Affairs, the law school dean, and plaintiff in 2009 and 2010. The memos express "various concerns about [plaintiff's] work, both its quantity and its relevance to legal scholars." (Leshem I, supra, B296102.)
The grievance panel found that there was a preponderance of evidence that Klerman expressed to plaintiff concerns about the quantity of his published scholarship and its relevance to legal scholars. It found that Hadfield's selection of plaintiff to present her work and her satisfaction with and praise for his presentation did not amount to an endorsement of his case for tenure and were not evidence of irregular conduct by the subcommittee. It concluded that there was no contradiction in finding a colleague intelligent and well-versed in a topic and believing that he did not meet the requirements for tenure. (Leshem I, supra, B296102.)
Further, as to plaintiff's claim that defendant failed to advise him about his tenure prospects, the grievance committee stated that while it found no wrongdoing by the law school, it urged the law school "to take its review process more seriously." Klerman's two documenting memos appeared to be "hastily written to the potential detriment of the candidate. In future cases it would behoove the law faculty to conduct a more thorough and serious review of tenure-track professors' progress in their probationary years. Given, also, the increasing number of scholars who work in 'law and' fields, the panel believe[d] that the law school should develop fair and consistent policies for weighing publications in law reviews and in refereed journals." (Leshem I, supra, B296102.)
In its recommendation rejecting plaintiff's grievance, the grievance panel stated, "Although asking for referee reports on submitted articles does constitute irregular conduct on the part of the tenure subcommittee, the evidence clearly indicate[d] that this conduct had no effect on the outcome of the law faculty's deliberations. Finally, although the panel [found] that [plaintiff] was not terribly well mentored by his senior colleagues in the years between 2009 and 2011 when his career seem[ed] to have veered off track, it [saw] no persuasive evidence of bias or of any violations of procedure in this arena." On June 24, 2015, based upon the record, defendant's president denied plaintiff's grievance. (Leshem I, supra, B296102.)
On July 7, 2017, plaintiff filed his first amended petition for writ of administrative mandamus. The amended petition asserted five causes of action for administrative mandamus as follows: (1) the tenure review committee improperly relied on plaintiff's citation counts in denying him tenure, (2) the tenure review committee improperly relied on his referee reports in denying him tenure, (3) he was not fairly evaluated because of procedural defects in his tenure review-the grievance panel found Hadfield's explanation for the procedural defects not credible and "'puzzling,'" (4) defendant's internal grievance procedures entitled him to a copy of his tenure dossier, and (5) there was a procedural defect in the grievance proceeding because the grievance panel and defendant were able to review and use his tenure dossier, but he was not. (Leshem I, supra, B296102.)
On September 26, 2017, the trial court (the Hon. Amy D. Hogue) sustained without leave to amend defendant's demurrer to the amended petition's first and second causes of action. On December 10, 2018, the trial court (the Hon. Mitchell Beckloff) issued an order denying the remaining causes of action in the amended petition. On January 9, 2019, it entered judgment in defendant's favor. (Leshem I, supra, B296102.)
III. DISCUSSION
A. Plaintiff's Post-Remand Contentions
Plaintiff contends the trial court (the Hon. Mary H. Strobel) erred in failing to review the tenure dossier for references to journal rejections and editors' letters, defendant's use of plaintiff's journal rejections and editors' letters in denying him tenure violated defendant's tenure review policies and procedures and plaintiff's state constitutional right to privacy, and the court failed to exercise its discretion to address defendant's "[o]ther [v]iolations" of its procedures. Because these issues were not within the scope of our remand order, they are not appropriate issues in this appeal.
1. Standard of Review
Whether a trial court correctly interpreted an appellate court's opinion-i.e., the opinion's disposition and remand order-is a legal issue that we review de novo. (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 (Ayyad).) "When . . . the reviewing court remands the matter for further proceedings, its directions must be read in conjunction with the opinion as a whole. [Citation.]" (Ibid.)
2. Legal Analysis
"'Where a reviewing court reverses a judgment with directions . . . the trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court.' [Citations.]" (People v. Dutra (2006) 145 Cal.App.4th 1359, 1367 (Dutra); Sanchez v. Martinez (2020) 54 Cal.App.5th 535, 549 (Sanchez) ["Because we find both these claims exceeded the scope of our limited remand . . . we reject these contentions"]; Ayyad, supra, 210 Cal.App.4th at p. 863 [a trial court must "adhere strictly to the directions of the reviewing court," its "jurisdiction on remand extends only to those issues on which the reviewing court permits further proceedings"]; Tsarnas v. Bailey (1962) 205 Cal.App.2d 593, 595596 (Tsarnas) ["In view of the precise limitation of the remand . . . these arguments are spurious"].)
Our direction to the trial court on remand was limited as follows: "On remand, the trial court is to order defendant to lodge the tenure dossier under seal with the court. The court is to review the tenure dossier to determine whether it contains referee reports or references to the substance of the referee reports. If the dossier includes such reports or references to the substance of those reports, the court shall exercise its discretion in determining whether additional materials must be produced to plaintiff and thereafter conduct further proceedings as appropriate. If the dossier does not include such reports or references to the substance of those reports, the court is to reenter judgment in defendant's favor." (Leshem I, supra, B296102.)
In post-remand briefing, plaintiff requested the trial court to review the tenure dossier for references to "journal rejections information" and to an editor's letter. Plaintiff also addressed defendant's alleged improprieties in his tenure review process and decision. Plaintiff did not contend the use of the editor's letter or journal rejections information violated his state constitutional right to privacy.
The trial court rejected plaintiff's requests and allegations. It ruled, "The Court of Appeal only ordered, and thereby authorized, this court to 'review the tenure dossier to determine whether it contains referee reports or references to the substance of the referee reports.' [Citation.] In context, the term 'referee reports' in the remand order refers to evaluations of [plaintiff's] unpublished work prepared by anonymous experts at the request of academic journals to which [plaintiff] submitted his work. [Citations.]" It further ruled that plaintiff's allegations of improprieties in his tenure review process and decision "exceed[ed] the scope of the Court of Appeal's remand order."
The trial court correctly interpreted our remand order. Our remand order limited the court's jurisdiction to determining whether the tenure dossier included referee reports or references to the substance of referee reports. It did not give the court jurisdiction to review the tenure dossier for journal rejections or editors' letters, to consider plaintiff's state constitutional privacy claim, or to consider plaintiff's other claims of procedural violations in his tenure process or decision. Accordingly, we reject these contentions on appeal. (Sanchez, supra, 54 Cal.App.5th at p. 549; Ayyad, supra, 210 Cal.App.4th at p. 863; Dutra, supra, 145 Cal.App.4th at p. 1367; Tsarnas, supra, 205 Cal.App.2d at pp. 595-596.)
B. Plaintiff's Pre-Remand Remaining Contentions
1. The Fairness of Plaintiff's Administrative Hearing
Plaintiff contends that his grievance proceeding was procedurally unfair because the grievance panel excluded his confidential tenure dossier from evidence and he was not provided with a copy of the dossier. He further contends that the grievance panel chair relinquished his responsibility to rule on evidentiary questions. We disagree.
a. Standard of Review
Administrative mandamus review under Code of Civil Procedure section 1094.5, subdivision (b) of a university's tenure decision is limited to whether there was a fair trial or administrative hearing. (Pomona College, supra, 45 Cal.App.4th at p. 1726 ["absent discrimination, judicial review of tenure decisions in California is limited to evaluating the fairness of the administrative hearing in an administrative mandamus action"]; see also Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 96, citing Pomona College, supra, 45 Cal.App.4th at p. 1730 [the "fair trial" requirement in section 1094.5, subdivision (b) requires that there be a fair administrative hearing].) We review do novo the fairness of an administrative hearing. (Lateef v. City of Madera (2020) 45 Cal.App.5th 245, 252.)
All further statutory references are to the Code of Civil Procedure.
b. Legal Analysis
i. Production of plaintiff's tenure dossier
Section 7-C(4) of the Faculty Handbook provides:
"Each party shall have the opportunity to present its evidence, including witnesses, and to make an argument to the grievance panel. Each party shall have the right to confront and question witnesses of the other. Each party shall have the right to inspect and respond to all written and documentary evidence offered. Technical rules of evidence are not applicable.
"[¶] . . . [¶]
"The grievant shall be given an opportunity to obtain necessary witnesses and documentary or other evidence. The University shall use its persuasive power and the Hearing Board its good offices to help the grievant obtain pertinent evidence or witnesses, but the University has no obligation to incur undue expense for this purpose." (Leshem I, supra, B296102.)
Plaintiff argues that section 7-C(4) entitled him to a copy of his tenure dossier. By excluding the tenure dossier, plaintiff argues, the grievance panel "effectively establishe[d] that the tenure file did not contain evidence of wrongdoing and thereby form[ed] the basis of the Panel's key determinations adopted by the President. By determining that the file was not necessary for 'a fair and reasonable hearing' . . . without introducing it into evidence, the Panel denied [plaintiff] an opportunity to 'test the sufficiency of the facts [that] support the finding.'"
Quick stated in his letter to the parties that the journal referee reports about which plaintiff complained were not a part of plaintiff's tenure dossier. Nevertheless, he permitted the grievance panel to review the dossier to determine if there were any references to the referee reports. The panel determined the dossier did not contain any documents that were necessary for a fair hearing. The dossier was not admitted into evidence. Because the referee reports were not a part of the confidential tenure dossier, the dossier was not admitted as an exhibit in the grievance proceeding, and the grievance panel did not consider the dossier in making its decision, plaintiff's grievance proceeding was not procedurally unfair.
A copy of the tenure dossier was lodged in the Court of Appeal. We have reviewed the tenure dossier and confirmed that it did not contain referee reports, as that term was correctly defined by the trial court on remand, or references to the substance of referee reports. As the trial court observed, the reconsideration dossier did include a March 1, 2013, e-mail from a journal which referenced a reviewer having further comments. Plaintiff had requested that the e-mail be included in his reconsideration dossier. The e-mail did not include either the review's comments or the substance of the comments.
ii. The grievance panel chair's ruling on plaintiff's request that plaintiff's tenure dossier be produced
Faculty Handbook section 7-C(4) states:
"The chair of the grievance panel shall be responsible for presiding over the hearing and shall rule on all evidentiary questions. The chair shall set the order of argument and of presentation of evidence and may exclude irrelevant or unduly repetitious evidence or argument." (Leshem I, supra, B296102.)
Plaintiff asserts that the grievance panel chair "clearly ordered" defendant to produce to him his tenure dossier. Defendant refused and dictated to the panel chair the terms by which the dossier would be disclosed. The panel chair acquiesced in defendant's decision. In abandoning his responsibility to preside over the hearing, the panel chair "renounce[ed] any notion of independence required to ensure a fair administrative hearing. His ceding to [defendant] the authority to make orders and set terms of discovery and disclosure fundamentally violated [plaintiff's] right to a fair hearing as well as [plaintiff's] right[] 'to obtain necessary . . . documentary . . . or other evidence.'"
Plaintiff's claim is unavailing. First, plaintiff cites no university rule or provision that empowers a grievance panel chair to order defendant to produce confidential documents to a grievant. Faculty Handbook section 7-C(4) does not. It merely provides that the panel chair shall rule on all evidentiary questions. Second, the panel chair did not order defendant to produce plaintiff's tenure dossier to plaintiff, it recommended the dossier be produced. Third, the grievance panel correctly concluded that the dossier did not contain the contested documents or references to those documents.
2. The Sufficiency of the Evidence Supporting Defendant's Denial of Plaintiffs Grievance
Plaintiff contends that substantial evidence did not support the denial of his grievance. We disagree.
a. Standard of Review
"'On substantial evidence review, we do not "weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it."' [Citation.] '"[The administrative agency's] findings come before us 'with a strong presumption as to their correctness and regularity.' [Citation.] We do not substitute our own judgment if the [agency's] decision '"'is one which could have been made by reasonable people....' [Citation.]"'"' [Citation.] 'Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency's findings are not supported by substantial evidence.' [Citations.]
"We are required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict. [Citation.] Credibility is an issue of fact for the finder of fact to resolve [citation], and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact [citation]." (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1073-1074 (Doe).)
b. Legal Analysis
"'[I]t is beyond cavil that generally faculty employment decisions comprehend discretionary academic determinations which . . . entail review of the intellectual work product of the candidate. That decision is most effectively made within the university and although there may be tension between the faculty and the administration on their relative roles and responsibilities, it is generally acknowledged that the faculty has at least the initial, if not the primary, responsibility of judging candidates.' [Citation.] 'Wherever the responsibility lies within the institution, it is clear that courts must be vigilant not to intrude into that determination, and should not substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure. Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they can be shown to have been used as the mechanism to obscure discrimination, they must be left for evaluation by the professionals, particularly since they often involve inquiry into aspects of arcane scholarship beyond the competence of individual judges.' [Citation.]" (Pomona College, supra, 45 Cal.App.4th at pp. 1724-1725.)
"California law provides to those who feel wronged by procedural defects in the tenure process-as opposed to those who disagree with substantive evaluations-a remedy. That remedy is administrative mandamus." (Pomona College, supra, 45 Cal.App.4th at p. 1727.) Thus, as we noted above, "judicial review of tenure decisions in California is limited to evaluating the fairness of the administrative hearing in an administrative mandamus action." (Id. at p. 1726.) Accordingly, we reject substantive challenges to tenure decisions cast as procedural challenges. (Id. at p. 1727 [the plaintiff's "assertion that the deficiencies in the tenure review process are procedural rather than substantive is a purely semantic distinction without a difference. Litigating whether Pomona gave appropriate 'weight' to the available evidence and 'improperly evaluated' [the plaintiff's] academic qualifications and accomplishments will necessarily require the trier of fact to evaluate de novo [the plaintiff's] true abilities as a scholar"].)
Plaintiff identifies five areas where he contends insufficient evidence supports the grievance panel's conclusion that "procedural deficiencies" did not impact the tenure decision:
First, plaintiff contends the grievance panel "admitted procedural errors" as follows:
i. Referee reports
Plaintiff argues that Marmor's testimony and January 20, 2012, letter to UCAPT complaining about plaintiff's tenure review established that the content of plaintiff's referee reports was incorporated into the subcommittee's report and therefore shared with the tenure committee. Also, Marmor and plaintiff's witness law school professor Michael Shapiro testified that Hadfield discussed the referee reports at the tenure meeting. Thus, plaintiff concludes, there was no factual basis for the conclusion that the referee reports were not shared with the tenure committee.
Hadfield testified that she did not include the referee reports in plaintiff's tenure dossier (which we have confirmed), refer to them in the subcommittee's report, or discuss them with the tenure committee, and we do not reweigh evidence, consider the witness credibility, or resolve conflicts in the evidence. (Doe, supra, 5 Cal.App.5th at p. 1073.)
ii. The grievance panel's credibility findings
Plaintiff argues that the grievance panel improperly rejected Marmor's assertion in his testimony and January 30, 2012, complaint letter that the referee reports played a role in the tenure committee's discussion based on Hadfield's and Klerman's contrary testimony. He argues that Hadfield was not credible and the panel's characterization and summary of Hadfield's and Klerman's testimony distorted the record. We do not reweigh evidence, including credibility determinations. (Doe, supra, 5 Cal.App.5th at p. 1073.)
iii. The grievance panel's finding that procedural irregularities did not impact the tenure committee's deliberations or conclusions
Plaintiff argues that substantial evidence did not support the grievance panel's conclusion that while there were "'procedural irregularities in the compilation of [plaintiff's] dossier,' . . . [those irregularities did not] have 'any impact on the law school tenure committee's deliberations and discussions'" because the panel failed to "specify the nature and quantity of the 'procedural irregularities.'" Plaintiff's argument is unavailing. The panel's finding that there were "procedural irregularities" is the concluding sentence of a paragraph discussing Hadfield's "irregular" request that plaintiff share his referee reports with her. Thus, the panel did "specify the nature and quantity of the 'procedural irregularities.'" (Leshem I, supra, B296102.)
Second, plaintiff contends there was conflicting evidence about whether Klerman expressed concerns to plaintiff about plaintiff's scholarship-specifically about the quality and relevance of his published articles. Plaintiff's contention concerns claimed substantive inadequacies in the tenure decision rather than claims about procedural deficiencies in the tenure process and is thus beyond our purview. (Pomona College, supra, 45 Cal.App.4th at pp. 1726-1727.) Moreover, even if we were to consider the contention, we do not reweigh evidence, including credibility determinations. (Doe, supra, 5 Cal.App.5th at p. 1073.)
Third, plaintiff contends the grievance panel's finding that there were concerns about plaintiff's publication rate failed to give proper weight to the fact that plaintiff had written several drafts between 2009 and 2011 which he had submitted to "top journals." Also, Shapiro's testimony refuted the existence of any viable concerns about plaintiff's expertise in a particular area of law-apparently based on his low publication rate-or his failure to publish articles in law reviews as opposed to peer-reviewed journals. Plaintiff's contention concerns claimed substantive inadequacies in the tenure decision rather than claims about procedural deficiencies in the tenure process and is thus beyond our purview. (Pomona College, supra, 45 Cal.App.4th at pp. 1726-1727 ["[l]itigating whether Pomona gave appropriate 'weight' to the available evidence and 'improperly evaluated' [the plaintiff's] academic qualifications and accomplishments will necessarily require the trier of fact to evaluate de novo [the plaintiff's] true abilities as a scholar"].)
Fourth, plaintiff contends there was evidence of bias in the subcommittee members. Marmor testified that over the years Hadfield had been extremely positive about plaintiff and he could not understand why she had changed her mind. Shapiro concluded that members of the subcommittee must have been biased-without identifying any impermissible bias-because there had been a "'turnaround at the end of the five years,'" a "'180 degree turn.'" Effectively, plaintiff's contention is that there was testimony from others who also thought he should have been granted tenure and disagreed with the tenure decision. We do not review claims of substantive inadequacies in a tenure decision. (Pomona College, supra, 45 Cal.App.4th at pp. 17261727.)
Fifth, plaintiff argues the grievance panel failed to make several key findings about law school dean Robert Rasmussen's "violations of tenure review rules and procedures and his responsibility for the integrity of the process," the "irregular use of [plaintiff's] citations counts," and the "irregularities committed by the tenure review subcommittee in commissioning [plaintiff's] external tenure letters." He argues the failure to make such findings hinders judicial review of the administrative decision.
Plaintiff's complaint about Rasmussen's disputed conclusion that the "'[referee] reports were never . . . mentioned to the faculty as a whole'" is a substantive challenge to plaintiff's tenure decision cast as a procedural challenge and is thus beyond our purview. (Pomona College, supra, 45 Cal.App.4th at pp. 1726-1727.) The UCAPT Manual expressly provides that citation counts-the number of times others cite the tenure candidate's written work-should be used in analyzing a candidate's impact on his field. Plaintiff has not claimed on appeal that the trial court should have granted his amended writ because there were "irregularities committed by the tenure review subcommittee in commissioning [plaintiff's] external tenure letters." Thus, any failure by the grievance committee to make a finding concerning the alleged irregularities has not hindered our review and thus was harmless. (12319 Corp. v. Business License Com.(1982) 137 Cal.App.3d 54, 67.)
3. Defendant's Demurrer to Plaintiffs First and Second Causes of Action
Plaintiff contends the trial court erred in sustaining defendant's demurrer to his first and second causes of action. The demurrer was properly sustained.
a. Standard of Review
"On appeal from an order dismissing an action after the sustaining of a demurrer, we independently review the pleading to determine whether the facts alleged state a cause of action under any possible legal theory. [Citations.] We give the complaint a reasonable interpretation, 'treat[ing] the demurrer as admitting all material facts properly pleaded,' but do not 'assume the truth of contentions, deductions or conclusions of law.' [Citations.] We liberally construe the pleading with a view to substantial justice between the parties." (Chang v. Lederman (2009) 172 Cal.App.4th 67, 75-76.)
"On appeal, we will affirm a 'trial court's decision to sustain the demurrer [if it] was correct on any theory. [Citation.]' [Citation.] Accordingly, 'we do not review the validity of the trial court's reasoning but only the propriety of the ruling itself. [Citations.]' [Citation.]" (Berg &Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034-1035.)
b. Legal Analysis
In his first and second causes of action, plaintiff alleged that the tenure review committee improperly relied on his citation counts and the referee reports in denying him tenure. Alternatively, plaintiff alleged that the grievance committee improperly failed to grant him relief based on the tenure review committee's use of citation counts and referee reports.Defendant characterizes these asserted deficiencies as procedural defects.
Plaintiff did not address this alternative theory either in his opening brief or in his reply brief on appeal. Therefore, he has forfeited any claim of error. (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 367.)
In its demurrer, defendant argued (1) its decision to not grant plaintiff tenure was not a final decision within the meaning of section 1094.5, (2) its tenure review process was not a hearing within the meaning of section 1094.5, and (3) plaintiff impermissibly sought review of its substantive decision to not grant plaintiff tenure. The trial court sustained the demurrer agreeing with defendant's first and second arguments. We affirm the trial court's order sustaining defendant's demurrer based on defendant's third argument.
Section 1094.5, subdivision (a) provides, "Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury."
Again, "judicial review of tenure decisions in California is limited to evaluating the fairness of the administrative hearing in an administrative mandamus action" (Pomona College, supra, 45 Cal.App.4th at p. 1726) and we reject substantive challenges to tenure decisions cast as procedural challenges (id. at p. 1727). Although plaintiff casts his first and second causes of action as procedural challenges, they are instead improper substantive challenges to the tenure review committee's decision. Accordingly, the trial court properly sustained the demurrer.
Even if we were to assume the trial court erred in sustaining the demurrer, we would conclude that any error was harmless. (Cohen v. Kabbalah Centre Internat., Inc. (2019) 35 Cal.App.5th 13, 23.) As we discuss above, the UCAPT Manual expressly provides that citation counts should be used in analyzing a candidate's impact on his field. Further, plaintiff's tenure dossier did not include referee reports or references to the substance of referee reports.
IV. DISPOSITION
The judgment is affirmed. Defendant is awarded its costs on appeal.
We concur: RUBIN, P. J. BAKER, J.