Addo v. Regents of Universtity of California, A124028 (Cal. App. 2/11/2010)

• Decision Date: 11 February 2010
• Docket Number: A124028.
• Parties: EMMANUEL ADDO, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSTITY OF CALIFORNIA, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

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EMMANUEL ADDO, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSTITY OF CALIFORNIA, Defendant and Respondent.

A124028.

Court of Appeals of California, First Appellate District, Division Two.

February 11, 2010.

Appeal from the San Francisco County, Super. Ct. No. 468966.

Not to be Published in Official Reports

HAERLE, J.

I. INTRODUCTION

In 2000, appellant, an immigrant from Ghana, enrolled in the University of California San Francisco's School of Pharmacy (hereafter UCSF and School). Due to various and sundry subsequent alleged failings by him regarding examinations, attendance and the like, in 2004 he was excluded from the list of graduating students and, in January 2005, "dismissed" from the school. Several years after all these events, i.e., in July 2008, appellant filed a four-cause-of-action first amended complaint (FAC) against the Regents. The Regents demurred to that complaint, and the matter was briefed and argued to the San Francisco Superior Court (the Honorable Patrick Mahoney). That court granted the Regents' demurrer without leave to amend as to all causes of action because of appellant's failure to exhaust the administrative process. Appellant appeals but we affirm the trial court's order and resulting judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

According to his FAC, appellant began his pharmacy studies at UCSF in 2000. Per that complaint, beginning in at least 2004, appellant encountered a series of difficulties in, e.g., taking a "make-up examination," completing both his required clinical rotations and a required paper. He claims that, starting in 2002, UCSF failed to accommodate his disabilities which included "depression, panic attacks and anxiety disorder." He alleged that, although the school allowed him to take one "make-up exam," it implicitly discriminated against him in that process in that two "non-African American" students were given a "materially different" make-up examination.

According to the FAC, after various and sundry complaints and grievances were asserted and considered by School professors and administrators, pursuant to the university's procedures, appellant was first suspended and later, in January 2005, dismissed from the School.

The trial court took judicial notice of the extensive administrative record, as we have also.

First, however, a word is in order on the procedures adopted—and apparently followed here—by the School regarding student grievances generally. When and where a student cannot resolve a grievance by informal means, he or she may request a hearing before an "Ad Hoc Grievance Committee" (hereafter Grievance Committee), consisting of three faculty members and two students. The grieving student may, of course, attend that hearing and bring an attorney or other representative, present evidence directly or through other witnesses, and examine witnesses provided by UCSF. The committee then prepares a written report of its findings of fact and recommendations, a copy of which is provided to the complaining student. That student is also provided an appeal procedure if he or she is not satisfied with the outcome, but must initiate such an appeal within ten days of receiving an adverse decision.

Appellant filed two separate grievances. The first was regarding his dismissal and was filed via a letter dated January 31, 2005. It alleged general discrimination against him, especially by one professor, Professor Michael Winter. We will not go through the allegations or procedure followed regarding this grievance because, although denied by the Grievance Committee, that denial was subsequently reversed due to an appeal by appellant and a September 22, 2005, ruling by the Grievance Committee's "Review Committee" that nullified the denial on procedural grounds.

Appellant's second grievance was filed on March 15, 2005, and was against three individual professors. It alleged discrimination based on appellant's race, color and handicap or disability, and also alleged retaliation against him by Professor Winter. In January 2006, an official of UCSF's Office of Affirmative Action, Equal Opportunity and Diversity, denied this complaint in its entirety, and also, later that same year, denied appellant's request for reconsideration of that decision. This grievance was, as will be noted, then consolidated with the first grievance.

The first grievance was then reheard by the Grievance Committee on March 23 and 27, 2007. That committee found appellant's complaint—enlarged by agreement to include the claims of discrimination and failure to accommodate of the second grievance—to be without merit. It noted that appellant had testified that he "did not feel that he had been discriminated against based on race or national origin" and that there was, thus, "no evidence presented to support this claim of discrimination." The committee also rejected the retaliation claim of appellant regarding Professor Winter's actions, finding that the latter was actually attempting to help appellant. Finally, it rejected appellant's failure to accommodate claim, noting that appellant had failed to present any evidence to support a claim of disability, and that individuals in the school were, in fact, ready and willing to accept appellant's claims of some disabilities, e.g., anxiety. The committee determined, in conclusion, that "there were non-discriminatory reasons for Mr. Addo's dismissal from the school."

In a cover letter dated April 30, 2007, accompanying this report, Associate Dean Robert Day of the School advised appellant that, on behalf of the School, he accepted the committee's findings and conclusions, and also specifically advised appellant of his right to appeal, including providing appellant a copy of the provisions of the School's rules regarding the latter. However, per the record provided us—and most importantly—no such second appeal was ever filed by appellant.

Instead, on September 18, 2007, appellant filed a complaint against the Regents. According to the San Francisco Superior Court's website, that complaint was apparently stricken for appellant's failure to pay the required filing fees. The complaint was filed again on November 7, 2007. Respondent demurred on various grounds, including appellant's failure to exhaust his remedies but, via stipulation, that demurrer was taken off calendar and appellant allowed to file his FAC with a fourth cause of action (for administrative mandamus).¹ Such was done, although respondent was apparently not served with the FAC. When respondent's counsel obtained a copy of the FAC, the Regents filed a demurrer and supporting documents on July 21, 2008.

That demurrer was scheduled to be heard on September 11, 2008; on the preceding day, a tentative ruling was issued granting the demurrer without leave to amend. Appellant failed to timely request leave to appear and argue at the scheduled hearing and, thus, on October 3, 2008, the trial court entered its order granting the Regents' demurrer without leave to amend. Although not in the appendices provided us by either party, a judgment was apparently entered in favor of the Regents on December 2, 2008. Appellant filed a timely notice of appeal the following month.

III. DISCUSSION

Just five years ago, our Supreme Court issued a unanimous decision which makes clear that the trial court was correct in sustaining the Regents' demurrer without leave to amend. That decision is Campbell v. Regents of University of California (2005) 35 Cal.4th 311 (Campbell), a case not cited much less discussed in appellant's only brief to us.² In that case, the San Francisco Superior Court dismissed a wrongful termination action brought against the Regents by a former architect employed by UCSF; she sued under provisions of the Government and Labor Codes alleging that she was wrongfully discharged by UCSF because of "whistleblowing," but did not follow the prescribed internal procedures for making such a complaint. After being so advised by the UCSF authorities, instead of refiling her complaint properly, she sued the Regents in San Francisco Superior Court, just as this appellant did. That court sustained the Regents' demurrer to an amended complaint, and then dismissed her action. Division One of this court affirmed, and that opinion was, in turn, affirmed—as noted, unanimously—on March 7, 2005, in an opinion authored by Associate Justice Chin.

Justice Chin first discussed the Regents' constitutional authority in such circumstances: "Because the present action involves the rights of a UCSF employee, we should note the Regents' constitutional status. The California Constitution establishes the Regents as a `public trust . . . with full powers of organization and government.' [Citation.] We have observed that `Article IX, section 9, grants the [R]egents broad powers to organize and govern the university and limits the Legislature's power to regulate either the university or the [R]egents. This contrasts with the comprehensive power of regulation the Legislature possesses over other state agencies.' [Citation.] This grant of constitutional power to the University includes the grant of quasi-judicial powers, a view that is generally accepted in our jurisprudence. [Citations.] [¶] The Regents may also exercise quasi-legislative powers, subject to legislative regulation. Indeed, `policies established by the Regents as matters of internal regulation may enjoy a status equivalent to that of state statutes.' [Citations.] The authority granted the Regents includes `full powers of organization and government, subject only to such legislative control as may be necessary to insure compliance with the terms of the endowment of the University and the security of its funds.' [Citation.] Thus, `[t]he Regents have been characterized as "a branch of the state itself" [citation] or `a statewide administrative agency' [citation]" [citation] and `[i]t is apparent that the Regents as a constitutionally created arm...