YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET SUITE 1800 Los ANGELES. CALIFORNIA 90015 YOUNG, ZINN BATE LLP JULIE ARIAS YOUNG (State Bar No. 168664) jyoung@yzblaw.com KAREN J. PAZZANI (State Bar No. 252133) kpazzani@yzblaw.com 1150 South Olive Street, Suite 1800 Los Angeles, California 90015 Telephone: (213) 362?1860 Facsimile: (213) 362-1861 Attorneys for Respondent UNIVERSITY OF SOUTHERN CALIFORNIA comer-map COPY ORIGINAL FILED Sugenor Court of California ounty of Los Angeles ?2.06 18 201? Sherri R. Caner, Executive Officer/Clerk, By Adrienne Robledo, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES MATTHEW BOERMEESTER, an Case No. individual, UNIVERSITY OF SOUTHERN Petitioner, MEMORANDUM IN OPPOSITION T0 EX V. APPLICATION FOR STAY 0F of?cial capacity as Vice President for OPERATION OF ADMINISTRATIVE AINSLEY CARRY, an individual in his ACTION Student Affairs; THE UNIVERSITY OF [Filed concurrently with Declarations of Karen J. SOUTHERN CALIFORNIA, a California Pazzani and Gretchen Dahlinger Means] Corporation; and DOES 1 to 20 inclusive Date: Respondent, Time: Dept: August 18, 2017 8:30 am. OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET SUITE 1800 Los ANGELES. CALIFORNIA 9001 5 TABLE OF CONTENTS I. INTRODUCTION AND SUMMARY OF ARGUMENT 1 II. STATEMENT OF FACTS 3 A. Petitioner Assaults Jane Roe On January 21, 2017. 3 B. The January 21, 2017 Incident Is Reported To USC Conducts A Detailed Investigation As Required By Title IX. 3 C. During The Investigation Petitioner Was Afforded Substantial Procedural Rights. 6 D. Following Investigation, Petitioner Was Expelled And His Expulsion Was Upheld On Appeal. 7 ARGUMENT 8 A. Petitioner?s Request For A Stay Should Be Denied Because He Cannot Show Any Statutory Basis For Granting Ex Parte Relief. 8 B. Even If Petitioner Could Demonstrate Suf?cient Urgency To Warrant Ex Parte Relief, His Request For A Stay Should Be Denied Because (1) He Cannot Demonstrate That He Is Likely To Succeed On The Merits Of His Petition, And (2) His Request Is Against The Public Interest. 9 1. Petitioner Cannot Demonstrate A Likelihood Of Success On The Merits. 9 a. Petitioner Was Provided With A Fair Trial 10 b. Dr. Carry Did Not Abuse His Discretion; His Decision Is Supported By Substantial Evidence. l2 2. Granting A Stay Is Against The Public Interest And Would Fly In The Face Of The Well-Established Deference That University Disciplinary Decisions Receive 13 IV. CONCLUSION 1 5 i OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN 8: BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 Los ANGELES. CALIFORNIA 90015 \quc?xUI-kb-INb?I TABLE OF AUTHORITIES Pagegs) Cases Agosto v. Bd. of Trustees of the Grossmont-Cuyamaca College Dist, 189 Cal. App. 4th 330 (2010) 12 Applebaum v. Board of Directors, 104 Cal. App. 3d 648 (1980) 10 Banks v. Dominican College, 35 Cal. App. 4th 1545 (1995) 15 City of Vernon v. Cent. Basin Mun. Water Dist, . 69 Cal. App. 4th 508 (1999) 8 Doe v. Regents of the University of California, 5 Cal. App. 5th 1055 (2016) 12, 13 Doe v. University of Southern California, 246 Cal. App. 4th 221 (2016) 10, 12 E. Bay Mun. Util. Dist. v. Cal. Dep ?t of Forestry Fire Prot, 43 Cal. App. 4th 1113 (1996) 8 Gai v. City of Selma, 68 Cal. App. 4th 213 (1998) 12 Gar?nkle v. Superior Court, 21 Cal. 3d 268 (1978) 10 Granowitz v. Redlands Unified School Dist, 105 Cal. App. 4th 349 (2003) 15 Guty?inke'l v. Los Angeles Community College Dist, 121 Cal. App. 3d 1 (1981) 11,12 Hongsathavij v. Queen of Angels/Hollywood Presbyterian Med. Ctr, 62 Cal. App. 4th 1123 (1998) 12 Kaiser Foundation Hospitals v. Sacramento County Superior Court, 128 Cal. App. 4th 85 (2005) 10 Kirk v. Board of Regents, 273 Cal. App. 2d 430 (1969) 12 O?Connell v. Sup. Ct., 141 Cal. App. 4th 1452 (2006) 8 Ogundare v. Dep ?t of Indus. Relations, 214 Cal. App. 4th 822 (2013) 13 ii OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET, SUITE 1800 Los ANGELES. CALIFORNIA 90015 Cases, cont. Paulsen v. Golden Gate Univ., 25 Cal. 3d 803 (1979) 15 Pinsker v. Paci?c Coast Society of Orthodontists, 12 Cal. 3d 541 (1974) 10 Pomona College v. Superior Court, 45 Cal. App. 4th 1716 (1996) 14 Regents of Univ. of Calif v. Superior Court, 3 Cal. 3d 529 (1970) 15 San Francisco Newspaper Printing Co. v. Superior Court, 170 Cal. App. 3d 438 (1985) 9 Shoemaker v. County of Los Angeles, 37 Cal. App. 4th 618 (1995) 10 Smith v. Regents of Univ. of Calif, 4 Cal. 4th 843 (1993) 14 Sweeny v. New Hampshire, 354 US. 234 (1957) 14 Statutes 20 1681 et seq. 2 Cal. Civ. Free. Code 1094.5 9 Cal. Civ. Free. Code 1094.5(b) 10 Cal. Civ. Proc. Code 1094.5(0) 12 Cal. Civ. Free. Code 1094.5(g) 9, 13 Rules Cal. Ct. Rule 3.1202(0) 8 LA. Sup.Ct Rule 9 L.A. Sup.Ct Rule 3.26, Appendix 8 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 LOS ANGELES, CALIFORNIA 90015 \l Li) I. INTRODUCTION AND SUMMARY OF ARGUMENT Petitioner is a former University of Southern California student who was expelled after a detailed investigation revealed that he physically assaulted a fellow student, Jane Roe, with whom he had a romantic relationship. Based on its investigation, USC found that in the early morning hours of January 21, 2017, Petitioner put his hands around Jane Roe?s neck, causing her to cough, and shoved her into a cinder block wall in the alley near her apartment at least twice. Two male students who lived in the area observed the assault and confirmed that it was violent. One of those observers, Jane Roe?s friend, tried to convince Jane Roe to stay in his apartment away from Petitioner that evening. Jane Roe was crying but decided to return to her own apartment, expressing concern that Petitioner?s conduct would escalate if she did not return to him. Fearing for Jane Roe?s safety, one of the observers reported the altercation to USC later that day. As required by applicable law and its policies, USC began investigating the incident on January 23, 2017. During the investigation, Petitioner was temporarily suSpended from USC. As such, he has not attended classes at USC since January 26, 2017. On May 2, 2017, after a thorough investigation, USC concluded Petitioner?s conduct warranted expulsion. Jane Roe ?s initial statements to USC, the statements of the two male students who observed the assault, the statements of witnesses who observed Jane Roe after the assault, text messages between Jane Roe and her friends, and a surveillance video all supported USC?s?nding. Petitioner himself admitted that he put his hands around Jane Roe?s neck, but dismissed his conduct as mere ?rough housing.? Petitioner was given the opportunity to and did internally appeal his expulsion. That appeal was denied and his expulsion became ?nal on July 7, 2017. Now, by way of this ex parte application, Petitioner is effectively asking the Court to allow him to avoid sanction entirely without affording the Court the opportunity to review the merits of decision. Petitioner needs to complete only two classes to receive a degree from USC. If the Court stays his expulsion now without a complete review of the record against him he will likely graduate before the Court reviews the merits of decision. Thus, a stay would effectively force USC to award Petitioner a degree notwithstanding its well-reasoned decision ?nding him ineligible to complete his undergraduate studies at USC. Granting 1 OPPOSITION TO EXPARTE APPLICATION FOR-STAY YOUNG ZINN BATE LLP 1150 SOUTH OLIVE STREET, SUITE 1800 Los ANGELES, CALIFORNIA 90015 Petitioner?s ex parte- application under these conditions would circumvent thorough investigation and disciplinary proceedings (which comply with Title IX of the Education Amendments of 1972 (?Title 20 USC. 1681 et seq.), undermine the public policy of stated in Title IX, and undermine the well-established deference afforded to university disciplinary decisions. There is no possible ground for a stay of Petitioner?s expulsion pending the Court?s review of the Petition for Writ of Administrative Mandate (?Writ?) and the complete administrative record, particularly on an ex parte basis, for the following reasons: 0 Petitioner cannot show any statutory basis for the granting of ex parte relief. To the contrary, as demonstrated by the fact that Petitioner has not attended classes at USC since January 26, 201 7, Petitioner will suffer no irreparable harm if the expulsion remains in effect while this matter is pending. 0 Petitioner cannot demonstrate a likelihood of success on the merits because he was provided with a fair hearing in conformance with California law and decision to expel Petitioner is supported by substantial evidence. 0 Granting a stay is not in the public interest. Staying Petitioner?s expulsion would undermine the current public pelicy stated in Title IX guidance and the well- established deference afforded to university disciplinary decisions. In addition, issuing a stay would effectively preclude USC from ever disciplining Petitioner for his misconduct because Petitioner only needs to complete two classes to graduate. If USC is ordered to allow him to return to school, he will likely graduate while this matter is pending and USC will be forced to issue him a diploma even though it has already decided that his conduct makes him ineligible for a USC degree. Such action should not be taken and should not be undertaken without a review of the substantial evidence against Petitioner. 2 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, SUITE 1800 LOSANGELES, CALIFORNIA 90015 N'aII. STATEMENT OF FACTS A. Petitioner Assaults Jane Roe On January 21., 2017. Petitioner physically assaulted Jane Roe on January 21, 2017 by placing his hands around her neck and pushing her against a wall at least twice. The assault was observed by two male students. (Declaration of Gretchen Dahlinger Means (?Means Exh. I, pp. 32, 39-40.) Both described hearing screaming from an alley near Jane Roe?s apartment and then looking outside to see Petitioner shoving Jane Roe against a wall with his hands around her neck. (Id) Both described the encounter as aggressive, not playful. (Id) One of the male students went outside to intervene. (Id, p. 32.) He asked Jane Roe and Petitioner how things were going, and he believed that his presence and question broke up the altercation. (Id, p. 32.) The other male student, who was friends with Jane Roe, woke up his roommate and then they both went outside to help Jane Roe. (Id, pp. 34-35, 39-40.) When they encountered Jane Roe, Petitioner was already in her apartment. (Id) They spoke to her alone in their apartment and encouraged her to stay with them, rather than return to her own apartment. (Id) Jane Roe was crying, but stated she would return to her apartment because she did not want to ?make [Petitioner] more mad.? (Id, p. 35, 40.) Fearing for Jane Roe?s safety, one of the observers reported the assault to a tennis coach, who reported it to Title IX Coordinator. (Id, pp. 1, 35, 40.) B. The anua? 21, 2017 Incident Is ReportedgTo USC Conducts A Detailed Investig ation As Reguired By Title IX. As required by its policies and guidance promulgated by US. Department of Education Of?ce for Civil Rights regarding Title IX, USC investigated the altercation. Jane Roe initially con?rmed the witnesses? account of the events, informing Title IX Investigator Lauren Elan Helsper (?Helsper?) that she and Petitioner had an ?on and off? again relationship. (Id, p. 7.) As of October 2016, they were no longer in a dating relationship but Petitioner continued to sleep at her house. (Id) Jane Roe reported that she often had bruises on her legs or arms from Petitioner because he would hit her or grab her when he was angry. (Id, p. 10.) Jane Roe said she tried to downplay his conduct because she was uncomfortable and when she tried to confront him about it, he did not take her seriously. (Id) She reported that the physical 3 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET, SUITE 1800 Los ANGELES, CALIFORNIA 90015 Contact had become ?more often and more hurtful? and that bruising had become more commonplace recently because Petitioner had become ?more angry.? (Id, pp. 10, 12.) She said that when she did not do what Petitioner wanted, she would get bruised. (Id, p. 10.) As to the January 21, 2017 assault, Jane Roe reported that it was the worst incident she had experienced. (Id, p. 8.) She said the assault began when Petitioner grabbed her hair ?hard? in the alley by her apartment and told her to ?drop the fucking leash,? instructing her to release her dog in the alley. (Id) She refused, so he grabbed her harder, which ?hurt? and caused her to release the dog. (Id) Petitioner then grabbed her by her neck, holding ?tight? and causing her to cough, and pushed her head against a concrete wall. (Id) Petitioner let her go and then grabbed her neck again and hit her head against the wall again. (Id) After the assault, Jane Roe reported that two of her male friends brought her into their apartment and tried to convince her to sleep there for the night. (Id) Jane Roe refused because Petitioner ?wouldn?t understan and he often yells at her so she returned to her house to avoid ?mak[ing] it worse.? (Id) Jane Roe told Helsper that she was afraid of how Petitioner would react when he found out about the investigation. (Id, p. 12.) She also did not want to ?burn? him because she still cared about him. (Id, p. 8, 12.) Jane Roe noted that Petitioner was ?very good at making [her] feel like [she] need[ed] him,? and had torn her down so she felt dependent on him. (Id, p. 11.) Because of her concern about Petitioner?s response to the investigation, Jane Roe asked for an avoidance of contact order directing Petitioner not to contact her and emergency housing when Petitioner was noti?ed of the investigation. (Id, p. 12.) The Title IX Of?ce accommodated these requests, providing ane Roe with emergency housing when she was in town between January 24 and 30, 2017. (Id, p. 12, fn. 18.) Before the Title IX Of?ce, noti?ed Petitioner about the investigation, Jane Roe sent Helsper several text messages continuing to express concern about his possible reaction and stating: ?He can?t know I made a statement. Can you not tell him I made a statement,? and saw him at school and we are on ?ne terms that he knows of and so I just act normal so he doesn?t [get] suspicious. Like most of the time we act totally ?ne even like friends like there haven?t been any problems.? (Id, pp. 70?71.) 4 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG ZINN BATE LLP 1150 SOUTH OLIVE STREET, SUITE 1800 Los ANGEL-ES, 90015 After meeting with Jane Roe, Helsper interviewed Petitioner and an additional sixteen witnesses. Witnesses con?rmed that Jane Roe was close to crying when she initially described the January 21, 2017 altercation and that Jane Roe said Petitioner hurt her when he hit her head against the wall. pp. 24, 25, 29, 33, 35.) Witnesses also described having seen bruising on Jane Roe?s body before and after January 21, 2017, which Jane Roe said was caused by Petitioner. pp. 19, 25, 29.) One witness recalled a prior altercation where Petitioner become angry and threw Jane Roe onto a bed. pp. 25, 33.) Jane Roe tried to laugh off the incident at the time. Witnesses also reported that Jane Roe ?s friends had previously contacted Jane Roe?s father to express concern that Petitioner was abusing her after observing bruising on her body prior to January 21, 2017. pp. 9, 34, 38.) Petitioner himself con?rmed the majority of the witnesses? accounts of the altercation on the night of January 21, 2017. He said he instructed Jane Roe to release her dog?s leash so he could ?watch it run around,? and then put his hands around her neck while she was standing by a wall. p. 16.) Petitioner dismissed his conduct as a ?joke,? and a ?sexual thing,? but said he could understand how it might look. According to Petitioner?s report, an unknown male walked by and asked if he and Jane Roe were okay. (Id) Petitioner claims he and Jane Roe apologized for scaring him. Petitioner further admitted that two of Jane Roe?s neighbors brought her into their apartment to talk to her because they were concerned about her safety. (Id) A surveillance camera near the alley behind Jane Roe?s apartment also captured the assault. The camera was located approximately two buildings away from the incident location, but shows Petitioner making physical contact with Jane Roe near her neck and pushing her into a wall twice. (Id, pp. 43-45.) Jane Roe?s dog can also be seen running loose in the alley near the street. Witnesses reported that Jane Roe is very protective of her dog and would not normally allow it to run free in an alley. (Id, pp. 16, 34, 39.) After her initial interview with Helsper, Jane Roe began to express concern about the possible repercussions of the investigation for Petitioner. She then changed her position and denied that Petitioner ever abused her. (Id, pp. 13-15, 67-69.) Jane Roe?s later denials were contradicted by her own initial statements to Helsper, as well as the weight of the evidence 5 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, Some 1800 Los ANGELES, '9001 5 wm?c?xUI-BMNh-t t?t i?n I?i b?l r? I?l i?d r?t collected during the investigation, including text messages among Jane Roe and her friends, witness accounts, witness statements regarding the nature of Jane Roe?s relationship with Petitioner, and a surveillance video. Further, Jane Roe?s attempts to protect Petitioner were consistent with a recognized pattern of recanting in intimate partner violence that may be motivated by love or fear of reprisal. C. During Thelnvestigation Petitioner Was Afforded Substantial Procedural Rights. During the investigation, Petitioner was afforded substantial procedural rights. For example: 0 He was noti?ed of the charges against him; . 0 He was given the opportunity to meet with Helsper, to share his side of the story, and did so, with an advisor (an attorney) present, on January 30, 2017; 0 He was given the opportunity to submit the names of witnesses and other relevant information; 0 He was given access to all of the information collected by Helsper, including witness interview notes and all documents supplied by Jane Roe and third party witnesses. Speci?cally, over the course of two days, for a total of approximately 3 hours, Petitioner was permitted to and did review the evidence compiled during the investigation. His attorney was physically present during the majority of the evidence review. During the times when Petitioner?s attorney chose not to be physically present, the was permitted to be on the phone with Petitioner while Petitioner reviewed the evidence. 0 After reviewing the evidence, Petitioner was given the opportunity to submit questions for Jane Roe (but chose not to do so) and again given the opportunity to share his side of the story at an evidence hearing (but chose not to do so). 0 He was given the opportunity to submit written statements to the investigator and did so on two occasions, before and after reviewing the evidence. 6 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, SUITE 1800 LOS ANGELES, 90015 D. Following Investigation, Petitioner Was Expelled And His Expulsion Was Upheld On Appeal. After thoroughly investigating the incident, Helsper prepared a detailed report of her factual ?ndings and made ?ndings of policy violations based on her review and analysis of all information collected. (Means Decl., Exh. 1.) In this case, Helsper found that there was suf?cient evidence to conclude that Petitioner violated Section VIE. (intimate partner violence) of the Student Conduct Code.1 pp. 50-54.) Helsper?s ?nal report was then sent to a review panel, the Misconduct Sanctioning Panel (?Review Panel?). The Review Panel met on May 2, 2017 and imposed a sanction of expulsion. After the Review Panel determined the appropriate sanctions, Petitioner was again provided with substantial procedural rights. He was given the opportunity to, and did, appeal the . decision internally to an Appellate Panel. The Appellate Panel is responsible for reviewing the appeal and making recommendations to Ainsley Carry, Vice President for Student Affairs Carry?). While preparing his appeal, Petitioner used an attorney to assist with the appeal. After a careful review of the record and Petitioner?s appeal, the Appellate Panel found the evidence supported Helsper?s ?ndings. However, the Appellate Panel did not believe expulsion was appropriate because Petitioner?s conduct could have been ?reckless? rather than intentional. The Appellate Panel recommended a two~year suspension. In accordance with policies, Dr. Carry reviewed the Appellate Panel?s recommendation and the records in the case before making a ?nal decision on Petitioner?s appeal. Dr. Carry approved the Appellate Panel?s ?nding that Petitioner violated the Student Conduct Code and af?rmed the sanction of expulsion. Petitioner was found responsible for violating a provision of the Student Conduct Code that prohibits ?violence committed against a person . . . with whom they have a previous or current dating, romantic, intimate, or sexual relationship.? ?Violence,? in turn, means ?causing physical harm to the person . . . Intent to cause physical harm is not an element. Thus, Dr. Carry reasoned that expulsion was the apprOpriate sanction, Helsper also found Petitioner violated an avoidance of contact order that directed Petitioner not to contact Jane Roe during the investigation. pp. 53-54.) 7 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 LOS ANGELES, CALIFORNIA 90015 NGOOQONUI irrespective of whether Petitioner intended to harm Jane Roe or did so recklessly. Petitioner was noti?ed of Dr. Carry?s ?nal decision on July 7, 2017. ARGUMENT A. Petitioner?s Request For A Stay Should Be Denied Because He Cannot Show Any Statutory Basis For Granting Ex Parte Relief. Ex parte relief should only be afforded on an emergency basis and counsel should only seek such relief where there is a bona ?de emergency, i. where a client will suffer ?irreparable harm [or] immediate danger? without such relief. See Cal. R. Ct. Rule L.A. Sup.Ct Rule 3.26, Appendix Irreparable harm is not speculative or remote; it is clear, impending and immediately likely. See E. Bay Mun. Util. Dist. v. Cal. Dep?t of Forestry Fire Prot., 43 Cal. App. 4th 1113, 1126 (1996); City of Vernon v. Cent. Basin Mun. Water Dist, 69 Cal. App. 4th 508, 518 (1999) (upholding trial court?s conclusion that plaintiff did not meet its burden of proving irreparable harm in a clear, nonremote, nonspeculative manner). Here, Petitioner cannot show that a failure to grant the stay would cause any irreparable harm. Petitioner has not attended classes at USC since January 26, 2017. Thus, allowing his expulsion to remain in effect while this matter is pending simply preserves the status quo. Further, he can present no evidence that he would suffer irreparable harm by taking time off from school while the Court reviews his petition and the complete administrative record. Delay in obtaining a degree is not irreparable harm. See O?Connell v. Sup. Ct., 141 Cal. App. 4th 1452, 1468?70 (2006) (finding delay of receipt of a high school diploma would not cause impacted students harm suf?cient to justify a preliminary injunction). Thus, he cannot Show non?remote, non?speculative irreparable harm and allowing his expulsion to remain in effect while this matter is pending simply preserves the status quo. Additionally, the adage ?delay on your part does not constitute an emergency on my part? applies here. Petitioner was advised that his expulsion was final on July 7, 2017. Petitioner could have ?led a petition and sought a stay of his expulsion anytime in the past month and a half. He did not. Instead, he waited more than a month to ?le a Petition for Writ of Administrative Mandamus. Then, he noticed an ex parte to shorten time on a motion to stay for August 16, 2017, 8 OPPOSITION TO EX PAR APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, 1 800 1.05 CALIFORNIA 90015 . r?t but cancelled it at approximately 3:30 pm. on August 15, 2017. (Declaration of Karen J. Pazzani (?Pazzani 1i 5.) Now, based on his own delay, he is asking the Court to hear his request for a stay on an ex parte basis without providing Respondents a meaningfully opportunity to prepare a complete opposition. (Pazzani Decl., 1i 6.) Petitioner?s delay in pursuing this matter undermines any argument he can make regarding purported urgency. The Court should not reward Petitioner?s dilatory conduct by issuing an order before reviewing the substantial record against Petitioner, which includes, among other things, witness interview notes, an audio recording, text messages, and a surveillance video that could not be attached to this apposition. For these reasons, Petitioner cannot meet his burden for ex parte relief. B. Even If Petitioner Could Demonstrate Suf?cient Urgency To Warrant EX Parte Relief. His Request For A Stav Should Be Denied Because (1) He Cannot Demonstrate That He Is Likely To Succeed On The Merits Of His Petition, And (2) His Request Is Against The Public Interest. In general, a stay of an agency?s decision is governed by principles of inj unctive relief. See L.A. Sup.Ct Rule Thus, a stay ?must not issue unless it is reasonably probable that the moving party will prevail on the merits.? San Francisco Newspaper Printing Co. v. Superior Court, 170 Cal. App. 3d 438, 442 (1985). In addition, on a petition for writ of administrative mandamus, the court is expressly precluded from granting a stay if it would be ?against the public interest.? Cal. Civ. Proc. Code Here, Petitioner cannot demonstrate a reasonable likelihood of success on the merits. Further, a stay of Petitioner?s expulsion due to violations of Student Conduct Code would circumvent the public interest because it would force USC to award Petitioner a degree notwithstanding reasoned and detailed decision justifying his expulsion. This would undermine current public policy and the well-established deference that university disciplinary decisions receiVe and is against the public interest. 1. Petitioner Cannot Demonstrate A Likelihood Of Success On The Main.- On a petition for writ of administrative mandate pursuant to California Civil Procedure section 1094.5, the Court?s inquiry is limited to ?whether the respondent has proceeded without, or 9 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1 150 SOUTH Ouve STREET, SUITE 1800 LOS ANGELES, CALIFORNIA 90015 t?t i?A t?l i?I in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.? Cal. Civ. Proc. Code Petitioner cannot demonstrate a likelihood of success on any of his claims. a. Petitioner Was Provided With A Fair Trial. As a private institution, actions, and the actions of its employees, are not governed by due process under the Fourteenth Amendment of the United States Constitution and article 1, section 7 of the California Constitution. See Gar?nkle v. Superior Court, 21 Cal. 3d 268, 272 (1978) (private actions are ?exempt from the due process constraints of the federal Constitution? and ?the due process clause of the state Constitution?); Kaiser Foundation Hospitals v. Sacramento County Superior Court, 128 Cal. App. 4th 85, 102 (2005) (holding that private hospitals are not required to provide due process in connection with their peer review process); Shoemaker v. County of Los Angeles, 37 Cal. App. 4th 618, 632 (1995) (holding an employee?s removal from a position at a private university does not constitute state action and therefore does not implicate the due process clause). Nonetheless, consistent with California law, USC has well- established processes for investigating and adj udicating claims of sexual assault which comply both with California?s requirements for a fair trial and federal guidance regarding Title IX. A fair trial requires ?[a]dequate notice of Charges and a reasonable opportunity to respond.? Applebaum v. Board of Directors, 104 Cal. App. 3d 648, 657 (1980). The speci?c requirements of this element ?vary depending upon the situation under consideration and the interest involved? and ?associations themselves should retain the initial and primary reSponsibility for devising a method which provides an [individual] adequate notice of the ?charges? against him and reasonable opportunity to respond.? Id.; Pinsker v. Paci?c Coast Society of Orthodontists, 12 Cal. 3d 541, 555 (1974). In student disciplinary proceedings, a fair trial is provided when there is ?an ?informal give-and-take? between the student and the administrative body dismissing him that would, at least, give the student ?the opportunity to characterize his conduct and put it in what he deems the proper context.?? Doe v. University of Southern California (?Doe v. USC 246 Cal. App. 4th 221, 240 (2016) (citations omitted). 10 OPPOSITION TO EXPARTE APPLICATION FOR YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, SUITE 1800 Los ANGELES, 90015 Here, policies provided Petitioner with notice of the charges against him and a reasonable opportunity to respond. Petitioner received prompt notice of the allegations against him. He had access to all of the evidence against him, including information provided by Jane Roe and the other witnesses, and the opportunity to respond to it. Indeed, Petitioner had multiple opportunities to present his side of the story, and did so in an interview (where he was allowed to and did have an attorney present) and via written statements. He also had the opportunity to share his side of the story at an evidence hearing and submit questions for Jane Roe, but chose not to do so. Finally, he had the opportunity to file an appeal, and did so. That appeal was carefully considered by an independent panel, which made a recommendation to Dr. Carry, who also reviewed the ?ndings and the sanction. If Dr. Carry had felt additional investigation was necessary to reach a fair result, he had the ability to remand the matter to the investigator for further review.? These procedures are fully compliant with California law, particularly in light of the situation under consideration and the interests involved. Signi?cantly, this is a case involving disciplinary action taken by a private educational institution against a student. It is not a criminal matter in which the accused student is at risk of incarceration or losing any fundamental right. See Gur?nkel v. Los Angeles Community College Dist, 121 Cal. App. 3d 1, 5-6 (1981) (dismissing plaintiff? argument that the fundamental interest in education should be extended to postsecondary education). In fact, because accused students in these types of matters are not at risk of losing any fundamental rights,_to protect the interests of the victims of sexual misconduct, including gender-based harassment, and to encourage reporting, federal guidance regarding Title IX encourages universities to use the exact investigatory procedure adopted by USC and used in this matter. Speci?cally, Title IX guidance from OCR ?strongly discourages? any procedures permitting the parties to personally cross~examine one another in sexual misconduct investigations because ?[a]llowing an alleged perpetrator to question a complainant directly may be traumatic or intimidating, and may perpetuate a hostile environmen (Pazzani Decl., Exh. 1, p. 31.) Moreover, it is not the case, as Petitioner will likely argue, that a single investigator acts as ?police, prosecutor, and judge.? Instead, as detailed above, after the investigator makes his or her 1 OPPOSITION TO EX PART APPLICATION FOR STAY YOUNG, BATE LLP 1 150 SOUTH STREET, 1800 LOS ANGELES, 90015 ?ndings of fact and determines policy violations, the Review Panel determines appropriate sanctions, if any. The accused student is also given the opportunity to appeal the Review Panel?s decision. The ultimate decision on appeal is made by Dr. Carry, who considers the recommendation of an Appellate Panel and has the discretion to modify the Review Panel?s decision or remand the case for further investigation if warranted.2 All in all, the decisions in these matters become ?nal only after multiple layers of review of the facts, ?ndings, and sanction. As explained herein, procedures comply with federal guidance on Title IX and provide a fair trial in accordance with California law. Accordingly, Petitioner cannot demonstrate a likelihood of success on the merits of his claim that he did not receive a fair trial. b. Dr. Carrv Did Not Abuse His Discretion; His Decision Is Supported By Substantial Evidence. Petitioner also cannot demonstrate a likelihood of success on his claim that Dr. Carry abused his discretion or that his decision is not supported by substantial evidence. - Importantly, where, as here, the substantial evidence3 standard applies, even ?if reasonable minds may disagree as to the wisdom of the agency?s action, its determination must be upheld.? Agosto v. Bd. of Trustees of the Grossmont~Cuyamaca College Dist?, 189 Cal. App. 4th 330, 336 (2010). A recent Court of Appeal decision addressing student discipline for sexual misconduct explained the 2 To the extent Petitioner attempts to argue he did not receive a fair trial because the investigator was biased, that argument will also fail. Absent allegations that the investigator had a pecuniary or personal interest in the outcome, a showing of actual bias is required. See Gaz? v. City of Selma, 68 Cal. App. 4th 213, 219 (1998) (although the petitioner had established an ?appearance of bias," the ?probability or likelihood of actual bias? must be proven to invalidate an administrative decision). ?[B}ias in an administrative hearing context can never be implied, and the mere suggestion or appearance of bias is not suf?cient.? Hongsathavy' v. Queen of Angels/Hollywood Presbyterian Med. Ctr., 62 Cal. App. 4th 1 123, 1142 (1998). Here, there is not a single allegation of a pecuniary or personal interest or actual bias on the part of Helsper or Dr. Carry. 3 The ?substantial evidence? standard applies in all cases unless the independent judgment standard is ?authorized by law.? Cal. Civ. Free. Code Here, no statute authorizes the Court to review the record using its ?independent judgmen Nor does any case law. While the independentjudgment test may apply when an agency?s action substantially affects a vested, fundamental right, Petitioner does not have a vested, fundamental right to attend USC. See Gur?nkel, 121 Cal. App. 3d at 5-6 (1981) (dismissing plaintiff?s argument that the fundamental interest in education should be extended to postsecondary education); Kirk v. Board of Regents, 273 Cal. App. 2d 430, 440 (1969) (?While we fully recognize the value of higher education, we cannot equate its attainment with food, clothing and shelter.?) Indeed, the two California cases addressing student discipline for sexual misconduct under Title IX have applied the substantial evidence standard of review to the universities? factual ?ndings. See Doe v. Regents of the University of California, 5 Cal. App. 5th 1055, 1073 (2016) (?We review the Panel?s substantive decision for substantial evidence?); Doe v. USC, 246 Cal. App. 4th at 239 (?We review substantive decision [suSpending a student for sexual misconduct] for substantial evidence?). In applying the substantial evidence standard of review, both cases implicitly found that no fundamental, vested right was at issue. 12 OPPOSITION TO EX PART APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET, SUITE 1800 Los ANGELES, 90015 ?extremely deferential? substantial evidence standard of review as follows: 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. The administrative agency?s ?ndings come before us with a strong presumption as to their correctness and regularity. We do not substitute our own judgment if the agency?s decision is one which could have been made by reasonable people. Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency?s ?ndings are not supported by substantial evidence. 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. Credibility is an issue of fact for the ?nder of fact to resolve, and the testimony of a single witness, even that of a party, is suf?cient to provide substantial evidence to support a ?nding of fact. Doe v. Regents of the University of California, 5 Cal. App. 5th at 1073 (citations and quotations omitted). Thus, even if the Court would have reached a different result, the petition should be denied if substantial evidence supports the decision. See Ogundare v, Dep ?t of Indus. Relations, 214 Cal. App. 4th 822, 829-30 (2013) (?If the administrative decision is supported by substantial evidence, we may not overturn it merely because a contrary ?nding would have been equally or more reasonable?). Here, Petitioner is unlikely to prevail on his Writ because the substantial evidence supports Dr. Carry?s decision. The record contains substantial evidence to support the ?nding that Petitioner put his hands around Jane Roe?s neck and pushed her head into a wall at least twice on January 21, 2017. Thus, Dr. Carry?s ?ndings are amply supported by the evidence. 2. Granting A Stav Is Against The Public Interest And Would Fly In The Face Of The Well-Established Deference That Universi Disci lina Decisions Receive. On a petition for writ of administrative mandamus, the court is expressly precluded from granting a stay if it would be ?against the public interest.? Cal. Civ. Proc. Code Therefore, even if Petitioner could demonstrate a likelihood of success on the merits (which he cannot) or. if he brought a properly noticed motion to stay pursuant to California Code of Civil Procedure section the Court would still be precluded from issuing a stay because it is 13 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, Sums 1800 Los ANGELES, 90015 QUIAOJN seq against the public interest. See id. Issuing a stay without a review of the vast administrative record would undermine the public interest in ensuring an educational environment free from discrimination and harassment and the well-established deference to university disciplinary decisions. State and federal law con?rm the strong public interest in preventing sexual assault and violence on university campuses. Title IX and the guidance promulgated thereunder require colleges and universities to investigate and remedy complaints relating to sexual misconduct and partner Violence. A stay of expulsion, particularly without a review of the detailed record USC compiled supporting its decision, would undermine ability to enforce the sexual misconduct policies and procedures that it adopted in compliance with Title IX. Thus, a stay is against the public interest stated in the current law. To the extent Petitioner disputes the public policy supporting Title IX and the guidance promulgated thereunder, his remedy is with the legislature, not seeking a Court order that would undermine the current policy stated in the law. Additionally, a stay is against the public interest because it would undermine autonomy and discretion in matters of student discipline. Speci?cally, it would effectively force USC to award Petitioner a degree before the Court has an opportunity to review the merits of decision to expel him. The gravity of this decision cannot be understated. Here, USC determined after a detailed investigation that Petitioner?s misconduct and violation of the Student Conduct Code rendered him ineligible for a USC degree and ineligible to hold himself out as a USC alumni. One of the ?essential freedoms? of a university is to determine for itself ?who may be admitted to study,? and by extension, who may obtain a degree. Pomona College v. Superior Court, 45 Cal. App. 4th 1716, 1722 (1996), quoting SWeeny v. New Hampshire, 354 US. 234, 263 (1957). Courts have repeatedly supported the important public interest in allowing educational institutions the autonomy to set rules and standards of behavior for students. Both public and private universities are afforded almost complete discretion to set student policies and determine discipline. See Smith v. Regents of Univ. of Calif, 4 Cal. 4th 843, 852-53 (1993) (?the Regents, to be effective, must have considerable discretion to determine how best to carry out the University?s educational mission. Indeed, we have said that ?the power of the Regents to operate, control, and administer the l4 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, SUITE 1 800 Los ANGELES, CAUFORNIA 9001 5 ooqcx?mnmmi?cwooqaxmamNi-uo University is virtually exclusive.??) ((quoting Regents of Univ. of Calif v. Superior Court, 3 Cal. 3d 529, 540 (1970) (internal quotation marks omitted)); Banks v. Dominican College, 35 Cal. App. 4th 1545, 1551 (1995) (af?rming college?s dismissal of teaching student from credential program: ?It is well settled that in actions challenging the academic decision of a private university regarding a student?s quali?cations for a degree, we exercise a highly deferential and limited standard of review?); Paulsen v. Golden Gate Univ., 25 Cal. 3d 803, 808 (1979) (af?rming law school?s decision to re-admit former student with certain restrictions: ?There is a widely accepted rule of judicial nonintervention into the academic affairs of schools?). This deference extends to student discipline. See Granowitz v. Redlana?s Unified School Dist, 105 Cal. App. 4th 349, 354 (2003) (?We recognize the deference we must accord to an administrator?s decision to discipline a student?). Granting Petitioner?s stay would seriously impair exercise of this ?essential freedom? with respect to Petitioner because it would force USC to award him a degree before the Court has the opportunity to conduct a complete review of the merits of decision to expel him. IV. CONCLUSION For all of the foregoing reasons, Respondent respectfully requests that Petitioner?s ex parte application for a stay pending petition for writ of administrative mandamus be denied in its entirety. AugUSt 17> 2017 YOUNG, ZINN BATE LLP ?wt-M?J?it" KKREITI J. PAZZANI Attorneys for Respondent UNIVERSITY OF SOUTHERN CALIFORNIA 15 OPPOSITION TO EX PARTE APPLICATION FOR STAY YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET, Sums 1800 LOS ANGELES, CALIFORNIA 9001 5 PROOF OF SERVICE STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the Within action. My business address is 1150 S. Olive Street, Suite 1800, Los Angeles, California 90015. On August 18, 2017, I served the foregoing documents described as UNIVERSITY OF SOUTHERN MEMORANDUM IN OPPOSITION T0 EX PART APPLICATION FOR STAY OF OPERATION OF ADMINISTRATIVE ACTION on the interested parties in this action by sending a true copy thereof to: Mark M. Hathaway, Esq. Representing PetitiOner Jenna E. Eyrich, Esq. MATTHEW BOERMEESTER Werksman Jackson Hathaway Quinn 888 West Sixth Street, Fourth Floor Los Angeles, CA 90017 Tel: (213) 688?0460 Fax: (213) 624-1942 Email: mhathawav@werksmaniackson.com Email: ienna@werksmaniacksoncom On August 18, 2017, I personally delivered the envelope or package to the person(s) at: 111 North Hill Street Los Angeles, CA 90012. I declare under penalty of perjury under the laws of the state of California that the above is true and correct. Executed on August 18, 2017, at Los Angeles, California. f, aren J. Pazzani 16 PROOF OF SERVICE