California Cases January 26, 2021: Leshem v. Univ. of S. Cal.

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court , rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published , except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BS167350)

APPEAL from a judgment of the Superior Court of Los Angeles County, Amy D. Hogue and Mitchell Beckloff, Judges. Reversed and remanded with directions.

Stewart and Musell, Wendy E. Musell and Maraka L. Willits, for Plaintiff and Appellant.

Young & Zinn, Julie Arias Young and Karen J. Pazzani, for Defendant and Respondent.

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Plaintiff and appellant Shmuel Leshem appeals from the trial court's denial of his first amended petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5. Plaintiff was an associate law school professor at defendant and respondent the University of Southern California. Defendant denied plaintiff tenure and plaintiff challenged that decision internally through defendant's administrative processes which culminated in the denial of plaintiff's grievance. Plaintiff then filed a petition for writ of administrative mandamus seeking an order that defendant set aside its decision denying his grievance and reconvene his tenure review using proper policies and procedures. We reverse and remand with directions.

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.

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,

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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 promotions 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 . . . ."

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.

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.

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Additionally, there was concern that [his] earlier years were more productive than [his] more recent ones."

Plaintiff requested reconsideration of defendant's tenure decision. His request included his original dossier and a reconsideration dossier that contained new evidence consisting of additional articles and an editorial board invitation. The tenured law school faculty evaluated both dossiers 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.

The UCAPT panel determined that the new 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.

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."

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

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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.

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.

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.

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

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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."

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."

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."

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."

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

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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."

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."

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.

"We take the grievance and issues very seriously, and we wish to explore them with the witnesses; but we do not—we

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concluded that it is not necessary to interrupt the proceedings today and demand for the grievant to have access to the documents."

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."

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. As relevant for purposes of this appeal, 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.

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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."

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

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upon the record, defendant's president denied plaintiff's grievance.

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.

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.

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The Trial Court's Denial of Plaintiff's Motion to Compel Defendant to Produce and Augment the Administrative Record With His Tenure Dossier

Plaintiff contends the trial court erred when it denied his motion to compel defendant to produce and augment the administrative record with his tenure dossier under section 1094.6, subdivision (c). We agree in part. We hold that the court abused its discretion in denying plaintiff's motion without first reviewing the tenure dossier in camera and, accordingly, remand for in camera review.

A. Standard of Review

"'The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency. [Citation.]' [Citation.] Augmentation of the administrative record is permitted only within the strict limits set forth in section 1094.5, subdivision (e) which provides as follows: 'Where the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence; or, in cases in

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which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.' [Citations.] In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. [Citation.] Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. [Citation.]" ( Pomona Valley Hospital Medical Center v . Superior Court (1997) 55 Cal.App.4th 93, 101.)

B. Legal Analysis

Plaintiff moved in the trial court to compel defendant to produce and augment the administrative record with his tenure dossier. The trial court denied the motion. In his opening brief on his first amended writ petition, plaintiff renewed his request that the trial court order defendant to produce the tenure dossier.

In its response to plaintiff's motion to compel, defendant stated: "To the extent the Court believes it may need to review the confidential tenure dossier to adjudicate [plaintiff's] claims, to protect the confidentiality of [defendant's] tenure review process and the privacy interests of the professors who provided sincere reviews of [plaintiff's] scholarship based on [defendant's] representations that those reviews would be kept confidential, the Court should review the documents in camera , without requiring [defendant] to produce the documents to [plaintiff] or his counsel, before making any further order." It restated that

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position in its brief in opposition to plaintiff's first amended writ petition. The trial court did not review plaintiff's dossier in camera.

Plaintiff's grievance in part concerned the tenure committee's claimed consideration of the referee reports allegedly contained in his dossier. His writ petition asserted procedural violations in the grievance proceeding centered on the dossier and its contents. Without reviewing the dossier in camera, the trial court found that the evidence established that the referee reports were not included in the tenure dossier or referenced in the subcommittee report. Accordingly, it ruled, the grievance panel properly concluded that the dossier did not contain documents relevant to plaintiff's grievance. Moreover, the court ruled, public policy favors protecting confidential tenure review materials from disclosure.

The trial court abused its discretion in denying plaintiff's motion to compel without first reviewing the tenure dossier in camera. The court could not properly consider plaintiff's procedural unfairness claims without determining, in the first instance, whether the tenure dossier included the referee reports or references to the substance of those reports. (See Pack v . Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 837 ( Pack ) [in camera review "is routinely used when a judicial decision concerns information claimed to be covered by some rule of confidentiality or privilege"]; Kerr v . United States Dist . Court for Northern Dist . (1976) 426 U.S. 394, 405 ( Kerr ) ["[ I ] n camera review of the documents is a relatively costless and eminently worthwhile method to insure that the balance between petitioners' claims of irrelevance and privilege and plaintiffs'

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asserted need for the documents is correctly struck"].) Further, in camera review is a routinely used procedure to protect confidentiality. ( Pack , supra , 89 Cal.App.4th at pp. 837-838 & fn. 14; Kerr , supra , 426 U.S. at p. 405.)

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.

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The judgment is reversed. The trial court is to proceed as set forth above. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.