2d Civil No. B296102

IN THE

Court of Appeal STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION 5 ____________

SHMUEL LESHEM, Petitioner and Appellant,

v. UNIVERSITY OF SOUTHERN CALIFORNIA,

Respondent. ____________

Appeal from the Superior Court of the State of California for the County of Los Angeles, Case No. BS167350

Hon. Mitchell Beckloff __________

RESPONDENT’S BRIEF

__________

YOUNG & ZINN LLP Julie Arias Young, SBN 168664

jyoung@yzllp.com *Karen J. Pazzani, SBN 252133

kpazzani@yzllp.com 1150 South Olive Street, Suite 1800

Los Angeles, CA 90015 Tel: 213-362-1860 Fax: 213-362-1861

Attorneys for Respondent,

UNIVERSITY OF SOUTHERN CALIFORNIA

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TO BE FILED IN THE COURT OF APPEAL APP-008

COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION FIVE COURT OF APPEAL CASE NUMBER:

B296102 ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO.: 252133 NAME: Karen J. Pazzani, Esq. FIRM NAME: YOUNG & ZINN LLP STREET ADDRESS: 1150 South Olive Street, Suite 1800 CITY: Los Angeles STATE: CA ZIP CODE: 90015 TELEPHONE NO.: 213-362-1860 FAX NO.: 213-362-1861 E-MAIL ADDRESS: kpazzani@yzllp.com ATTORNEY FOR (name): University of Southern California

SUPERIOR COURT CASE NUMBER:

BS167350

APPELLANT/ PETITIONER: Shaine' Leshem

RESPONDENT/ REAL PARTY IN INTEREST: University of Southern California

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one): X INITIAL CERTIFICATE SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.

1. This form is being submitted on behalf of the following party (name )University of Southern California

There are no interested entities or persons that must be listed in this certificate under rule 8.208.

Interested entities or persons required to be listed under rule 8.208 are as follows:

Full name of interested entity or person

Nature of interest (Explain):

Continued on attachment 2.

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date: February 4, 2020

Karen J. Pazzani (TYPE OR PRINT NAME) (SIGNATURE OF APPELLANT OR ATTORNEY)

Page 1 of 1

Form Approved for Optional Use Judicial Council of California APP-008 [Rev. January 1, 2017)

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Cal. Rules of Court, rules 8.208, 8.488 www.courts.ca.gov

Westlaw Doc& Form Builder

2. a.

b.

TO BE FILED IN THE COURT OF APPEAL APP-008COURT OF APPEAL CASE NUMBER:

COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION FIVE B296102ATTORNEY OR PARTY WITHOUT ATTORNEY:

NAME: Karen J. Pazzani, Esq.FIRM NAME: YOUNG & ZINN LLPSTREET ADDRESS: 1150 South Olive Street, Suite 1800CITY: Los Angeles STATE: CA ZIP CODE: 90015TELEPHONE NO.: 213-362-1860 FAX NO.: 213-362-1861E-MAIL ADDRESS: kpazzani@yzllp.comATTORNEY FOR (name): University of Southern California

STATE BAR NO.: 252133 SUPERIOR COURT CASE NUMBER:

BS167350

APPELLANT/ Shmuel LeshemPETITIONER:

RESPONDENT/REAL PARTY IN INTEREST: University of Southern California

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one): X INITIAL CERTIFICATE SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initialcertificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such amotion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You mayalso use this form as a supplemental certificate when you learn of changed or additional information that mustbe disclosed.

1. This form is being submitted on behalf of the following party (name )University of Southern California

2. a.

b.

There are no interested entities or persons that must be listed in this certificate under rule 8.208.

I nterested entities or persons required to be listed under rule 8.208 are as follows:

Full name of interestedentity or person

Continued on attachment 2.

Nature of interest(Explain):

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any otherassociation, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent ormore in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justicesshould consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date: February 4, 2020

Karen J. Pazzani(TYPE OR PRINT NAME) (SIGNATURE OF APPELLANT OR ATTORNEY)

Page 1 of 1

Form Approved for Optional UseJ udicial Council of CaliforniaAPP-008 [Rev. January 1, 2017)

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Cal. Rules of Court, rules 8.208, 8.488www.courts.ca.govWestlaw Doc& Form Builder

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TABLE OF CONTENTS

INTRODUCTION .......................................................................... 11

STATEMENT OF FACTS ............................................................. 14

A. USC’s Tenure Review Process ................................... 14

B. Leshem’s Employment With USC ........................... 16

C. Leshem’s Tenure Review Was Conducted In Compliance With USC’s Policies .......................... 17

D. Leshem Requested Reconsideration ......................... 20

E. Leshem Pursued An Internal Grievance .................. 21

F. A Faculty Panel Heard Leshem’s Grievance .................................................................... 21

G. Leshem’s Grievance Was Denied .............................. 27

PROCEDURAL HISTORY ............................................................ 28

A. The Superior Court Sustained USC’s Demurrer To The First And Second Causes Of Action In Leshem’s Petition With Leave To Amend . .............. 28

B. The Superior Court Sustained USC’s Demurrer To The First And Second Causes Of Action In Leshem’s Amended Petition Without Leave To Amend ........................................................................ 29

C. The Superior Court Denied Leshem’s Motion To Augment The Record With The Confidential Tenure Dossier ........................................................... 30

D. The Superior Court Denied Leshem’s Amended Petition ....................................................................... 31

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STANDARD OF REVIEW ............................................................. 31

A. Standard Of Review Applicable To The Superior Court’s Denial Of Leshem’s Amended Petition ........ 31

B. Standard Of Review Applicable To The Denial Of Leshem’s Motion To Augment The Administrative Record ............................................... 34

C. Standard Of Review Applicable To The Order Sustaining USC’s Demurrer .................................... 34

LEGAL ANALYSIS ....................................................................... 35

I. Leshem Received A Fair Administrative Hearing ............. 35

A. Leshem Was Not Entitled To The Confidential Tenure Dossier; USC Conducted A Fair Grievance Hearing Without Introducing The Confidential Tenure Dossier Into Evidence ................................... 36

1. The Confidential Dossier Was Not Necessary Evidence ......................................... 37

2. The Confidential Tenure Dossier Was Not Introduced As Evidence. ........................... 40

B. The Panel Chair’s Decisions Were Consistent With The Faculty Handbook ............................................. 44

II. The Superior Court Properly Denied Leshem’s Motion To Augment The Administrative Record ................................. 46

III. USC’s Decision Denying Leshem’s Grievance Was Supported By The Evidence ................................................ 49

A. The President’s Decision Denying Leshem’s Grievance On The Grounds That It Was Untimely Is Supported By The Evidence .................................. 51

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B. USC’s Finding That The Referee Reports Did Not Impact The Final Decision-Makers’ Conclusion Is Supported By The Evidence ...................................... 52

1. The Panel Properly Weighed The Evidence And Evaluated Credibility In Reaching Its Recommendation .............................................. 53

2. There Is No Evidence That The Referee Reports Were Incorporated Into The Subcommittee Report. ..................................... 55

3. USC’s Finding That The Subcommittee’s Receipt Of The Referee Reports Did Not Impact The Tenured Faculty’s Deliberations Is Supported By The Evidence ........................ 58

4. The Panel’s Recommendation And The President’s Decision Analyze The Evidence And Explain The Rationale For Their Findings ............................................................ 61

C. Any Purported Failure To Warn Leshem That He May Not Be Awarded Tenure Did Not Justify Granting His Grievance. ........................................... 62

D. Leshem’s Assertions Regarding His Publication Rate And Draft Papers Improperly Seek Judicial Review Of His Academic Credentials And Suitability For Tenure At USC ................................. 65

E. USC’s Finding That Leshem Failed To Carry His Burden Of Demonstrating “Bias Or Prejudice Based On Considerations Prohibited By Law,” Is Supported By The Evidence .................................. 67

F. USC Made Findings On The Arguments Leshem Advanced During The Grievance .............................. 67

IV. The Superior Court Properly Sustained USC’s Demurrer To The First And Second Causes Of Action ....................... 69

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A. USC’s Decision Not To Award Leshem Tenure Was Not A Final Decision Within The Meaning Of Section 1094.5 ............................................................ 71

B. USC’s Tenure Review Process Is Not A Hearing Within The Meaning Of Section 1094.5 ................... 74

C. Leshem’s First And Second Causes Of Action Improperly Sought Judicial Review Of The Basis For USC’s Academic Judgment To Deny Him Tenure ....................................................................... 76

CONCLUSION ............................................................................... 77

CERTIFICATION .......................................................................... 78

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TABLE OF AUTHORITIES

Page(s)

Cases

300 DeHaro St. Inv’rs v. Dep’t of Hous. & Cmty. Dev. (2008) 161 Cal.App.4th 1240 ............................................... 75

Aluisi v. Fresno County (1958) 159 Cal.App.2d 823 .................................................. 48

Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648 .................................................. 35

Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020 ......................................... 35, 69

California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464 ............................................... 72

City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012 ................................................ 69

County of San Diego v. Assessment Appeals Bd. No. 2 (1983) 148 Cal.App.3d 548 ............................................ 47, 53

Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581 .................................................... 70

Doe v. Occidental College (2019) 37 Cal.App.5th 1003 ................................................. 53

Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055 ....................................... 33, 50, 53

Doe v. University of Southern California (2016) 246 Cal.App.4th 221 ................................................. 33

Doe v. University of Southern California (2018) 28 Cal.App.5th 26 ..................................................... 69

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Cases, cont. Du Four v. Unemployment Ins. Appeals Bd.

(1975) 49 Cal.App.3d 863 .................................................... 71 Evans v. City of San Jose

(2005) 128 Cal.App.4th 1123 ......................................... 34, 46 Foster v. Civil Service Com.

(1983) 142 Cal.App.3d 444 .................................................. 47 Gutkin v. University of Southern California

(2002) 101 Cal.App.4th 967 ............................... 32, 73, 74, 76 Honey Springs Homeowners Assn. v. Board of Supervisors

(1984) 157 Cal.App.3d 1122 ................................................ 62 Hongsathavij v. Queen of Angels/Hollywood

Presbyterian Med. Ctr. (1998) 62 Cal.App.4th 1123 ................................................. 71

Kahn v. Superior Court (1987) 188 Cal.App.3d 752 .................................................. 43

Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799 ................................................... 35

Kerr v. U. S. Dist. Court for N. Dist. of California (1976) 426 U.S. 394 .............................................................. 40

King v. Regents of Univ. of California (1982) 138 Cal.App.3d 812 .................................................. 43

Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028 ......................................... 34, 35

Kumar v. Nat’l Med. Enterprises, Inc. (1990) 218 Cal.App.3d 1050 ................................................ 71

Long Beach Unified Sch. Dist. v. State of California (1990) 225 Cal.App.3d 155 .................................................. 71

Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922 .............................................................. 35

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Cases, cont. Lynn v. Regents of Univ. of California

(9th Cir. 1981) 656 F.2d 1337 .............................................. 43 M.N. v. Morgan Hill Unified School Dist.

(2018) 20 Cal.App.5th 607 ................................................... 53 Northern Inyo Hosp. v. Fair Emp. Practice Com.

(1974) 38 Cal.App.3d 14 ...................................................... 50 Ogundare v. Department of Industrial Relations

(2013) 214 Cal.App.4th 822 ................................................. 50 Owen v. Sand

(2009) 176 Cal.App.4th 985 ................................................. 69 Pollock v. University of Southern California,

(2003) 112 Cal.App.4th 1416 ......................................... 32, 76 Pomona College v. Superior Court

(1996) 45 Cal.App.4th 1716 ............ 11, 31, 42, 49, 66, 73, 74, 75, 76, 77

Riverside County Sheriff’s Dep’t. v. Stiglitz (2014) 60 Cal.4th 624 ........................................................... 42

Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250 ............................................... 33

Scharf v. Regents of Univ. of California, (1991) 234 Cal.App.3d 1393 ................................................ 42

Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618 ................................................... 35

Toyota of Visalia, Inc. v. New Motor Vehicle Bd. (1997) 188 Cal.App.3d 872 .................................................. 34

West Chandler Boulevard Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th 1506 ............................................... 50

Williams v. Superior Court, (2017) 3 Cal.5th 531 ............................................................. 43

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Statutes

Code of Civil Procedure section 1094.6 ................................................................. 47, 48

Code of Civil Procedure section 1094.5 ................................... 28, 31, 71, 72, 73, 74, 75

Code of Civil Procedure section 430.10 ....................................................................... 34

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INTRODUCTION

Appellant Shmuel Leshem was not awarded tenure by USC

because he did not meet USC’s demanding standards for

appointment to a lifetime position. Leshem was hired by USC as

a Professor of Law in 2006 and given a mandatory tenure

decision date of May 15, 2012. This provided Leshem

approximately six years to develop a publication history

demonstrating significant and original contribution to the

academic community. He failed to do so.

Leshem’s qualifications for tenure were reviewed by several

academic committees and the Provost; all agreed that his

scholarship did not have an impact on any major field of law and his trajectory of productivity did not warrant tenure. As a

matter of law, USC’s academic judgment regarding

Leshem’s suitability for tenure is not subject to review.

(Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716,

1730 [“absent discrimination, judicial review of tenure decisions

in California is limited to evaluating the fairness of the

administrative hearing in an administrative mandamus action.”])

Nonetheless, Leshem attempts to attack USC’s academic

judgment under the guise of a procedural fairness challenge,

arguing that the internal grievance proceeding that addressed

the tenure review process was procedurally unfair. Leshem also

argues the grievance decision (finding that his tenure review was

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conducted in compliance with USC’s policies) was not supported

by the evidence. Leshem’s arguments are legally flawed and

unsupported by the record.

Leshem asserts the grievance process was unfair because

he was not provided with a copy of the confidential tenure dossier

USC prepared to evaluate his suitability for tenure. Leshem’s

arguments are specious. The confidential tenure dossier was

only relevant to whether, on academic grounds, Leshem should

have been awarded lifetime tenure. It was neither pertinent nor

necessary to the issues in the grievance and was not introduced

as evidence or relied upon by the individuals who adjudicated

Leshem’s grievance: the Grievance Panel and the President.

Accordingly, the Superior Court properly concluded that the

grievance proceeding was fair and denied Leshem’s motion to

augment the administrative record with the confidential tenure

dossier.

As to the merits of the decision denying his grievance,

Leshem principally argues that his grievance should have been

granted because he provided a tenure review subcommittee with

“referee reports” evaluating his unpublished work. The referee

reports were authored by anonymous experts in Leshem’s field

and prepared at the request of journals to which Leshem

submitted his work. Leshem alleges these referee reports were

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improperly considered by USC in evaluating his suitability for

tenure and their content prompted USC to deny him tenure.

The evidence does not support Leshem’s theory. While a

tenure review subcommittee received copies of the referee

reports, the reports were not shared with the actual tenure

decision-makers: the tenured law school faculty, the dean of the

law school, and the Provost. The relevant decision-makers

properly considered Leshem’s publication history, including

works he had in progress which had been rejected by multiple

journals, and determined his publication history did not warrant

an award of tenure. Accordingly, USC denied Leshem’s tenure-

related grievance, finding his tenure review process was

conducted in compliance with USC’s policies. USC’s findings are

supported by the evidence.

Finally, Leshem argues that the Superior Court erred when

it sustained USC’s demurrer to his first and second causes of

action, both of which impermissibly challenged the merits of

USC’s tenure decision. They were properly dismissed because

USC’s tenure decision (as opposed to the grievance decision

addressing alleged process flaws) was not a final decision subject

to distinct judicial review and the Court cannot intrude upon

USC’s academic judgment regarding Leshem’s suitability for

tenure.

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STATEMENT OF FACTS

A. USC’s Tenure Review Process.

Tenure is a lifetime appointment with limited grounds for

termination. (AR474-75.) When a university offers a faculty

member tenure, the university commits to supporting that

faculty member’s research and teaching for the rest of the faculty

member’s academic career. Because this is a significant

commitment, the tenure review process is rigorous and guided by

the particular university’s academic mission, including its

instructional and research priorities. Nationwide, colleges and universities set their own

standards and procedures for evaluating tenure. (AR757.) USC

has benefitted from considering the procedures established by

other institutions; however, USC has established its own unique

multi-step process for evaluating tenure. (AR757.)

Initially, the candidate is evaluated by his or her school or

department. (AR757.) The school or department will prepare a

confidential tenure dossier for the candidate. A typical tenure

dossier includes: (1) the candidate’s curriculum vitae; (2) a

bibliography of publications and a statement of support for

research; (3) the candidate’s personal statement; (4) data

regarding the candidate’s teaching record; (5) data regarding the

candidate’s record of service; and (6) supporting material on

scholarship and teaching. (AR782, 802.) The tenure dossier also

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includes reviews of the candidate’s scholarly record prepared by

referees (external experts in the candidate’s field who are asked

by the university to prepare confidential assessments of the

candidate’s scholarship) and “[a]ll published reviews of books and

artistic performances and ‘pink sheets’ on grant proposals and

readers reports on book manuscripts.” (AR782, 790-91, 802.)

Once the dossier is prepared, the tenured faculty of the

school or department (who are often advised by a subcommittee)

vote on the candidate. The dean then makes an independent

recommendation. (AR374-75, 757, 780.) If the tenured faculty’s

vote and the dean’s recommendation are both negative, the

tenure case goes no further. (AR757, 780.) If one or both are

positive, the candidate’s tenure dossier is provided to a panel of

the University Committee on Appointments, Promotions and

Tenure (UCAPT) for review. (AR756-57, 759, 780.) The UCAPT

panel then advises the Provost, who makes the tenure decision.

(AR756-57, 781.)

At the end of the process, USC awards tenure only to

individuals “who have made an important and original

contribution, who had an impact on the field, who have achieved

independence from their mentors, and whose work has focus.”

(AR773.)

To ensure faculty and referees reviewing a candidate’s

tenure application are free to provide their honest assessments,

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USC’s tenure process is kept confidential. USC’s policies state:

“All USC faculty participating in the process at any stage must

respect its confidentiality, and not reveal votes, the names or

views of referees, the contents of discussions, or the contents of

the dossier to anyone.” (AR780.)

B. Leshem’s Employment With USC.

USC hired Leshem to serve as an Assistant Professor of

Law beginning June 23, 2006. (Appellant’s Appendix, hereafter

AA, Vol. 1, p. 49.) Leshem’s offer letter stated that he was being

hired for “a tenure-track, full-time appointment, subject to

annual reappointment . . .” (Ibid.) Leshem’s offer letter also

stated “[n]either annual reappointment nor tenure is guaranteed;

both are discretionary with the University.” (Ibid.)

In the first few years of Leshem’s employment, he

performed reasonably well. In 2009, he was promoted to

Associate Professor of Law. (AR86, 393-94.) At the time, he had

published three articles, two in well-respected journals. (AR495-

97.) However, the tenured faculty had concerns that he was not

developing a subject matter focus. (AR495-97.) His articles

addressed different subject matters: torts, criminal law

enforcement, and the lawyer-client relationship. (Id.)

While there were concerns about Leshem’s focus, the

concerns were not significant enough to warrant the denial of an

initial promotion to Associate Professor. The tenured faculty Doc

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hoped that Leshem would continue to publish articles at the

same, or an increasing, pace and that he would develop a subject

matter expertise. (Id.) In the years leading up to Leshem’s

tenure review, USC cautioned him that failure to demonstrate

such productivity and an ability to connect with the legal field

could result in the denial of tenure. (AR503-08, 517-26, 557-60,

715-17.)

C. Leshem’s Tenure Review Was Conducted In Compliance With USC’s Policies.

In or around June 2011, USC initiated its review of

Leshem’s candidacy for tenure. (AR401.) A faculty

subcommittee, comprised of Professors Gillian Hadfield, Daniel

Klerman, and Thomas Griffith, was appointed to compile a

tenure dossier and prepare a report regarding the quality of

Leshem’s teaching and writing. (AR373-75, 491-92.) Professor

Hadfield served as the chair of the subcommittee. (AR373.)

Professor Hadfield initially met with Leshem to discuss the

tenure process and compilation of the tenure dossier. (AR373,

401.) During this meeting, Professor Hadfield told Leshem that

she needed to put together a list of external referees to review his

scholarship. (AR408, 421.) She advised Leshem that he could

suggest referees, but she cautioned him not to suggest too many

names because reviews provided by individuals who were

recommended by the candidate were viewed differently than

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reviews independently solicited by the university. (Id.)

Leshem expressed concern regarding how independently

solicited referees would view his work. (AR408-09.) His work

focused on the intersection between law and economics. (AR424.)

He therefore asked Professor Hadfield not to send his file to law

professors who did not appreciate analytical, economic work.

(AR408-09.) He also asked Professor Hadfield not to send his file

to economists who did not have a connection or interest in the

law. (AR408-09.) He shared that economists at standard

economics journals generally did not appreciate his work.

(AR408-09.) In response, Professor Hadfield invited Leshem to

send her the anonymous referee reports that he received when he

submitted his papers to journals for publication. (AR409-10,

433.) Professor Hadfield believed these reports would help her

understand how Leshem’s work was viewed by the academic

community, which would help her tailor a list of external referees

who would be objective and fair to Leshem. (AR408-10, 431-32.)

As Professor Hadfield and the subcommittee began

reviewing Leshem’s file, they were concerned that he had not

published many articles and there was very little evidence of his

impact on the academic legal community. (AR447, 448, 449-50,

477-78.) On September 12, 2011, Dean Robert Rasmussen,

Professor Hadfield, and Professor Gregory Keating met with

Leshem to caution him that he may not be awarded tenure.

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(AR444-46, 453-54.) Leshem decided to proceed with the tenure

review process despite the shortcomings in his file. (AR464-65.)

Thus, the subcommittee completed the tenure dossier and

their report. (AR374-75). At Leshem’s request, the

subcommittee included information in their report about the

articles Leshem had in progress, including a description of a

paper Leshem had recently submitted for publication that

received a “revise and resubmit” response from the editor.

(AR163, 432-34, 437-38, 443-44, 456-57, 647.) A “revise and

resubmit” response means the editor rejected Leshem’s

submission but encouraged him to make revisions and resubmit

it for review. (AR163, 432-34, 437-38.) Leshem provided

information about this article and the editor’s letter to Professor

Hadfield because he believed the information was helpful to him.

(AR647-48.)

Once the tenure dossier and subcommittee report were

complete (neither of which included the referee reports), they

were provided to the tenured law school faculty, who met and

voted on Leshem’s application for tenure. (AR374-75, 432, 468,

470-71, 538, 654.) Thereafter, Dean Rasmussen prepared an

independent recommendation. (AR1.) The faculty vote and the

Dean’s recommendation were both negative. (AR1, 138-39, 658.)

Normally, tenure would be denied at this stage. (AR757,

780.) However, because a faculty member raised a procedural

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concern regarding the anonymous referee reports that Leshem

had provided to Hadfield, in an abundance of caution and to

benefit Leshem, his tenure dossier was sent to a panel of UCAPT

for evaluation. (AR1, 658.) A UCAPT panel reviewed the dossier

and advised the Provost, who made the decision not to award

Leshem tenure. (AR1, 63, 658.) On May 1, 2012, USC advised

Leshem in writing that he would not be awarded tenure because

his work had limited impact on major fields of law and his

trajectory of productivity did not warrant tenure. (AR63.)

D. Leshem Requested Reconsideration.

Leshem sought reconsideration of USC’s tenure decision.

His case was reconsidered by the tenured law school faculty, the

Dean, a different UCAPT panel, and the Provost, and was denied.

(AR1, 64-65.) On April 1, 2013, Leshem was again advised that

“UCAPT expressed concern with the limited demonstrated

impact of [his] scholarship,” as evidenced, for example, by low

citation counts.1 In addition, while Leshem’s work was “well

executed, the assumptions underlying [his] models were

implausible and unsubstantiated.” (AR64-65.) Overall, his

scholarship did not have the significance expected of a tenure

1 To measure a tenure candidate’s impact on his or her field, USC analyzes the candidate’s citation counts, i.e., the number of times the individual’s work is cited by others. (AR765, 770-71.) D

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candidate. (Id.)

E. Leshem Pursued An Internal Grievance.

Pursuant to USC’s Faculty Handbook, Leshem was entitled

to file a grievance regarding the tenure process. (AR732.)

Leshem submitted a Grievance on September 13, 2013 and an

Amended Grievance on or around March 10, 2014. (AR8-25, 29-

131.)

In the Amended Grievance, Leshem alleged that: (1)

Professor Hadfield was biased against him because she

recommended that he withdraw from the tenure review process;

(2) the tenure review subcommittee improperly relied on the

anonymous referee reports he provided to Hadfield; (3) he did not

have adequate notice of the possibility that he might not be

awarded tenure; (4) he was not provided an adequate explanation

for the alleged change in the review of his work between his 2009

promotion and the negative tenure decision; and (5) UCAPT’s

review of his file did not rectify the subcommittee’s alleged

misconduct. (AR29-131.)

F. A Faculty Panel Heard Leshem’s Grievance.

Three faculty members were appointed to serve on a

Grievance Panel, which was vested with responsibility to hear

Leshem’s grievance and make a recommendation to the

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President. (AR736, 738-39.)

On December 8, 2014, the Panel convened a hearing. At

the hearing, Leshem’s counsel asked the Panel to order USC to

provide Leshem with a copy of the confidential tenure dossier

compiled in connection with his tenure review. (AR211-13.) In

response, the Panel Chair, Professor Paul Lerner, stated: “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.”

(AR216-17.) Thereafter, the Panel determined that they would

like to “see the tenure dossier before the hearing continues.”

(AR218.) The Panel then recommended that the tenure dossier be

provided to the Panel and Leshem. (AR222.) The Panel Chair

suggested that the hearing be rescheduled pending a response by

the Provost’s office to the Panel’s request. (AR222-23.)

On December 19, 2014, the Provost responded to the

Panel’s request, stating that the tenure dossier could not be

provided to Leshem due to confidentiality, but could be provided

to the Panel for their in camera review to allow them to

determine whether the dossier was necessary to reach a decision

on Leshem’s grievance. (AR227-29.) The Panel Chair responded:

“The members of the faculty panel are satisfied with this

solution.” (AR227-30.)

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On February 19, 2015, the Provost’s office made the

confidential tenure dossier available to the Panel for their in

camera review. In doing so, the Provost’s office specifically noted:

[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 it contains reference to the anonymous referee reports or other “necessary” evidence pertinent to the grounds Mr. Leshem 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.

(AR357.)

The grievance hearing was then resumed on March 27,

2015. The Panel Chair began the hearing by stating: “Let me

begin by saying that the three panelists conducted… an in

camera review of the documents that were made available to us

by the provost’s office. And we did not find documents that we

believe would alter the course or would be necessary to the exam

[sic] in order to have a fair and reasonable hearing ...” (AR365-

66; see also AR367.)

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After the Panel made its decision regarding the confidential

tenure dossier, six witnesses provided testimony. (AR370-661.)

With respect to the anonymous referee reports, Professor

Hadfield testified that she invited Leshem to share them with her

because she thought they would help her understand the views of

his potential external referees. (AR407-10, 429-32.) Professor

Hadfield testified that she did not plan to, and did not, use the

referee reports to evaluate Leshem’s suitability for tenure.

(AR429-32, 480-82, 669.)

Professor Klerman testified that the referee reports did not

have an impact on his view of Leshem’s tenure file. (AR560-63.)

In fact, Professors Hadfield and Klerman confirmed that the

subcommittee:

• did not include the anonymous referee reports in the

tenure dossier,

• did not reference them in the subcommittee’s report,

• did not provide them to the tenured faculty of the law

school (also referred to as the tenure committee), and

• did not provide them to the external referees who

USC asked to evaluate Leshem’s work.

(AR432, 439-40, 468, 538, 654.)

At Leshem’s request, the subcommittee included

information in their report about the works Leshem had in

progress, including a draft article that received a “revise and

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resubmit” response from an editor. (AR163, 432-34, 437-38, 443-

44, 456-57, 647.)

The professors who testified on Leshem’s behalf, Professor

Andrei Marmor and Professor Michael Shapiro, confirmed these

facts. (AR575-77, 598.) Professor Marmor testified that the

subcommittee report discussed one of Leshem’s unpublished

articles, which had recently received a “revise and resubmit,” and

quoted portions of the revise and resubmit letter. (AR598.)

Professor Marmor also testified that the subcommittee report

included data—not citations—regarding how many of Leshem’s

articles had been rejected. (AR598.)

When the tenure committee met to discuss Leshem’s

candidacy, the only reference to the anonymous referee reports

was made by Professor Klerman, who noted he felt the repeated

rejection of Leshem’s articles by editors and referees carried more

weight than the external referee letters solicited during Leshem’s

tenure review process. (AR440-44, 538-44, 547-48, 551-52, 603-

05.) When Professor Klerman made this comment, he and

Professor Hadfield clarified that the substance of the anonymous

referee reports (which had never been provided to the tenure

committee) was not at issue; rather, it was the repeated rejection

of Leshem’s work that caused concern. (Id.)

Leshem’s witnesses confirmed that Professor Klerman’s

comment did not generate any discussion among the faculty

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regarding the anonymous referee reports. Professor Shapiro

stated he could not recall if Professor Klerman made the

comment at all, and noted that “if he had said that the referee

reports were as reliable as the [external review] letters, no one

would have taken him seriously.” (AR580.) Professor Marmor

testified that the anonymous referee reports were not discussed

other than the “obscure” reference made by Professor Klerman.

(AR603-05.) Professor Marmor did not voice any objections to

Professor Klerman’s statement during the meeting, nor did he

advise the faculty that he believed the subcommittee’s reference

in their report to the revise and resubmit letter (that Leshem

asked the subcommittee to include) was inappropriate. (AR432-

34, 600.)

The witnesses explained that the anonymous referee

reports did not impact the tenured faculty’s vote; rather the

faculty were concerned that Leshem had a low volume of

published papers, his unpublished work had been rejected

multiple times, and his work did not have a significant impact on

his field of study. (AR449-50, 473-78, 480-84, 496-500, 583-84,

651-52.) Issues were also raised regarding Leshem’s

understanding of the law. The criminal law faculty felt that one

of Leshem’s papers did “not properly understand the way in

which the right to silence operates in interrogation in the

criminal law context.” (AR651-52.)

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Even Professor Marmor, one of Leshem’s ardent

supporters, confirmed that the criminal law faculty felt Leshem

did not “get the law right.” (AR614-15.) Professor Shapiro also

acknowledged that the faculty raised concerns about Leshem’s

productivity, citations counts, and failure to develop a particular

subject matter expertise. (AR570-75.)

Leshem himself admitted that it took him a long time to

publish his papers because he “was not well established.”

(AR642-43.) Leshem also admitted that he did not take seriously

the advice he was given on the tenure process. He chose to ignore

advice Professor Klerman gave him to publish in a law review

journal to obtain a wider audience because he disagreed with the

advice. (AR641-42.) He also said he did not spend time focusing

on his citation counts because he was “too absent-minded and

aloof,” and did not realize citations counts would be considered in

his tenure review. (AR641.)

G. Leshem’s Grievance Was Denied.

On April 16, 2015, the Panel recommended that the

President deny Leshem’s grievance. Specifically, the Panel found

the evidence at the hearing “clearly indicates that [asking for

anonymous referee reports] had no effect on the outcome of the

law faculty’s deliberations” and that there was no “persuasive

evidence of bias or of any violations of procedure in this arena.”

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The President considered the evidence presented at the

grievance hearing and the Panel’s recommendation and denied

Leshem’s grievance on June 24, 2015. (AR1-7.) The President

concluded that the grievance was untimely (because it was filed

more than nine months after USC initially denied Leshem tenure

and did not address USC’s later decision on Leshem’s request for

reconsideration). Nonetheless, the President analyzed the merits

of Leshem’s grievance and, like the Panel, found that the

evidence showed the anonymous referee reports “were not before

the decision-makers: the full faculty, the dean, and the Provost

advised by UCAPT.” (AR2.) As a result, he concluded the Panel’s

findings were supported by substantial evidence and denied

Leshem’s grievance. (AR6.)

PROCEDURAL HISTORY

A. The Superior Court Sustained USC’s Demurrer To The First And Second Causes Of Action In Leshem’s Petition With Leave To Amend.

Leshem filed a Petition for Writ of Administrative

Mandamus on January 10, 2017. (AA, Vol. 1, pp. 13-35.) Leshem

asserted five causes of action, all pursuant to California Code of

Civil Procedure Section 1094.5 (hereafter, Section 1094.5). The

first two causes of action challenged USC’s substantive decision

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not to award him tenure and third through fifth causes of action

challenged the fairness of the grievance proceeding and USC’s

decision to deny his grievance. (Id.) USC filed a demurrer to the

first and second causes of action. (AA, Vol. 4, p. 893.)

The Superior Court sustained USC’s demurrer with leave

to amend on June 7, 2017. (AA, Vol. 4, pp. 893-899.)

B. The Superior Court Sustained USC’s Demurrer To The First And Second Causes Of Action In Leshem’s Amended Petition Without Leave To Amend.

Leshem filed an Amended Petition for Writ of

Administrative Mandamus on July 7, 2017. (AA, Vol. 4, p. 901.)

The first two causes of action again challenged USC’s substantive

decision not to award Leshem tenure and the third through fifth

causes of action challenged the fairness of the grievance

proceeding and USC’s decision to deny his grievance. (AA, Vol. 4,

pp. 911-914.)

USC filed a demurrer to the first and second causes of

action on August 18, 2017. (AA, Vol. 4, p. 919.) USC argued that

Leshem’s first and second causes of action were improper and

should be dismissed because they did not challenge a final

administrative decision made after an evidentiary hearing. (AA,

Vol. 4, p. 928.) The Superior Court agreed. On September 26,

2017, the Superior Court sustained USC’s demurrer without

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demonstrating (1) the University’s initial tenure review

procedure required a hearing and the taking of evidence; or (2)

the University’s decision to deny tenure was a final decision.”

(AA, Vol. 4, p. 1035.)

C. The Superior Court Denied Leshem’s Motion To Augment The Record With The Confidential Tenure Dossier.

On April 28, 2017, Leshem filed a motion to compel USC to

produce the administrative record of the tenure review process,

i.e., the confidential tenure dossier, and augment the

administrative record with the confidential tenure dossier. (AA,

Vol. 4, p. 839-891.) USC opposed the motion. (AA, Vol. 4, pp.

1117-1134.)

On October 18, 2017, the Superior Court denied Leshem’s

motion, finding the tenure dossier was not part of the

administrative record of the grievance proceeding (because the

Panel reviewed it in camera and did not rely on it) and that

“ordering production of Petitioner’s dossier would run counter to

extensive case law underscoring the need for deference to

universities on the merits of their decisions to grant or deny

tenure.” (AA, Vol. 5, pp. 1169-1177.) D

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D. The Superior Court Denied Leshem’s Amended Petition.

Leshem filed an Opening Brief in support of his Amended

Petition on February 20, 2018. (AA, Vol. 5, pp. 1179-1200.) USC

filed its Opposition Brief on April 4, 2018. (AA, Vol. 5, pp. 1202-

1220.) Leshem filed his Reply Brief on April 25, 2018. (AA, Vol.

5, pp. 1223-1229.) The Superior Court heard argument on

Leshem’s Amended Petition on November 28, 2018 and denied it

on December 10, 2018. (AA, Vol. 5, pp. 1232-1244.)

STANDARD OF REVIEW

A. Standard Of Review Applicable To The Superior Court’s Denial Of Leshem’s Amended Petition.

Administrative mandamus review in California generally

extends to “whether the respondent has proceeded without, or in

excess of, jurisdiction; whether there was a fair trial; and

whether there was any prejudicial abuse of discretion.” (Code

Civ. Proc. § 1094.5, subd. (b).) However, “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.

1727, emphasis added.) In limiting review to the fairness of the

administrative hearing, the Second Appellate District reasoned

that academic peers are the most qualified to evaluate “teaching

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ability, research scholarship, and professional stature . . .” (Id. at

1725.) As the court stated:

Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they can be shown to have been 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. . . . [Academic] peers, unlike non-academics, are equipped to evaluate the candidate’s teaching and research according to their conformity with methodological principles agreed upon by the entire academic community. They also have the knowledge to meaningfully evaluate the candidate’s contributions within his or her particular field of study as well as the relevance of those contributions to the goals of the particular institution.

(Id. at 1725-26 [footnote omitted]; see also Pollock v. University of

Southern California (2003) 112 Cal.App.4th 1416, 1422 [“As they

are not positioned to consider the substantive merits of the

tenure decision, absent discrimination, courts are left only with

reviewing the fairness of the hearing in an administrative

mandamus action.”]; Gutkin v. University of Southern California

(2002) 101 Cal.App.4th 967, 977-78 [“California law [only]

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provides to those who feel wronged by procedural defects in the

tenure process – as opposed to those who disagree with the

substantive evaluations – a remedy.”].)

In light of Pomona College’s holding, this Court should

limit its review to the fairness of the grievance proceeding, which

is reviewed de novo. (Doe v. University of Southern California

(2016) 246 Cal.App.4th 221, 239, hereafter USC(1).)

Even if the Court were to review the merits of USC’s

decision to deny Leshem’s grievance, the review should be

conducted using the substantial evidence standard, as Leshem

concedes, because this case does not affect a fundamental vested

right. (AOB 17-18; Schafer v. City of Los Angeles (2015) 237

Cal.App.4th 1250, 1261.) When the substantial evidence

standard applies, this Court’s function is the same as the

Superior Court—it reviews the administrative record to

determine whether the agency’s decision is supported by

substantial evidence, resolving all conflicts in support of the

agency. (USC(1), supra, 246 Cal.App.4th at p. 239; Doe v.

Regents of the University of California (2016) 5 Cal.App.5th 1055,

1073, hereafter UCSD.) Further, the Court does not weigh the

evidence, consider the credibility of witnesses, or resolve conflicts

in the evidence or in the reasonable inferences that can be drawn

from the evidence. (UCSD, supra, 5 Cal.App.5th at p. 1073.)

Only if no reasonable person could reach the conclusion reached

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by the agency, based upon the entire record before the agency,

will a Court conclude that the agency’s findings are not supported

by substantial evidence. (Ibid.)

B. Standard Of Review Applicable To The Denial Of Leshem’s Motion To Augment The Administrative Record.

It is well-settled that “a hearing on a writ of administrative

mandamus is conducted solely on the record of the proceeding

before the administrative agency.” (Toyota of Visalia, Inc. v. New

Motor Vehicle Bd. (1997) 188 Cal.App.3d 872, 881.) “A court may

exercise its discretion to augment an administrative record if the

evidence is relevant and if it was improperly excluded during the

administrative process or it could not, in the exercise of

reasonable diligence, have been presented before the

administrative decision was made.” (Evans v. City of San Jose

(2005) 128 Cal.App.4th 1123, 1144.)

Where the Superior Court has denied a motion to augment

the administrative record, the Court of Appeal reviews the

Superior Court’s decision for abuse of discretion. (Ibid.)

C. Standard Of Review Applicable To The Order Sustaining USC’s Demurrer.

A demurrer tests the sufficiency of the allegations in the

complaint, and should be sustained where the Court lacks

jurisdiction of the subject of the cause of action or the pleading

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does not state facts sufficient to state a cause of action. (Code

Civ. Proc. § 430.10, subds. (a), (e).) The Superior Court’s order

sustaining USC’s demurrer to Leshem’s first and second causes of

action is reviewed de novo. (Kong v. City of Hawaiian Gardens

Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1038.)

Thus, the Court of Appeal does not review the validity of the

Superior Court’s reasoning. Rather, the order should be affirmed

if it was “correct on any theory.” (Berg & Berg Enterprises, LLC v.

Boyle (2009) 178 Cal.App.4th 1020, 1034–1035, citing Kennedy v.

Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808.)

LEGAL ANALYSIS

I. LESHEM RECEIVED A FAIR ADMINISTRATIVE HEARING

Under California law, a petitioner receives a fair hearing

when he receives “[a]dequate notice of charges and a reasonable

opportunity to respond.” (Applebaum v. Board of Directors (1980)

104 Cal.App.3d 648, 657.)2 The specific requirements of a fair

2 As a private institution, USC’s 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 Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 632 [holding an employee’s removal from a position at a private university does not constitute state action and does not implicate the due process D

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hearing “vary depending upon the situation under consideration

and the interest involved.” (Ibid.)

Leshem alleges the grievance proceeding was unfair

because he was not provided with a copy of the confidential

tenure dossier. (AOB 45-50.) He further alleges the Panel

relinquished its responsibility to rule on evidentiary questions.

(AOB 49-50.) Leshem’s arguments are meritless.

A. Leshem Was Not Entitled To The Confidential Tenure Dossier; USC Conducted A Fair Grievance Hearing Without Introducing The Confidential Tenure Dossier Into Evidence.

Contrary to Leshem’s assertion, he was not entitled to a

copy of the confidential tenure dossier. The Faculty Handbook

states the “grievant shall be given the opportunity to obtain

necessary witnesses and documentary or other evidence.”

(AR737.) The Faculty Handbook also states the grievant “shall

have the right to inspect and respond to all written and

documentary evidence offered.” (Id.) The confidential tenure

dossier does not fall into either category. Additionally, because

the confidential tenure dossier was neither considered nor relied

clause]; Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922, 930 [“[T]he Due Process Clause protects individuals only from governmental and not from private action.”]) D

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on as evidence, USC properly conducted a fair hearing without

providing the confidential tenure dossier to Leshem.

1. The Confidential Dossier Was Not Necessary Evidence.

The confidential tenure dossier was not “necessary”

evidence in Leshem’s grievance proceeding. As described in the

Faculty Handbook, Leshem was entitled to file a grievance on the

grounds that procedural defects materially inhibited the tenure

review process and/or he was not fairly evaluated due to bias

based on considerations prohibited by law. (AR732.) The Panel

was not empowered to reconsider the merits of USC’s tenure

decision. (AR738-39.)

Because the grievance proceeding was limited to evaluating

whether the alleged procedural defects materially inhibited

Leshem’s tenure review process, the confidential tenure dossier,

which included substantive reviews of Leshem’s qualifications

and the confidential letters of external reviewers, was not

necessary evidence.

Indeed, the witnesses testified—and the Panel’s in camera

review confirmed—that the anonymous referee reports were not

in the tenure dossier and were not quoted in the subcommittee’s

report. (AR432-33, 439-40, 468, 538, 577, 581, 598.) Thus,

Leshem did not need the dossier to present his case to the Panel.

To the contrary, Leshem was in possession of the sole documents

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he claimed were erroneously considered (the anonymous referee

reports) and was free to use them (or not) as he wished at the

grievance hearing. (AR141-201.) Leshem was also free to—and

did—question the witnesses about whether the anonymous

referee reports were discussed when the tenured faculty met to

consider his candidacy for tenure. Leshem chose not to make use

of the anonymous referee reports during this questioning, and the

witnesses uniformly testified that the reports were not a subject

of discussion among the tenured faculty (other than an obscure

reference by Professor Klerman, which even Leshem’s witness

admitted no one would have taken seriously.) (AR440-44, 538-44,

547-48, 551-52, 580, 603-05.) The confidential tenure dossier was

not “necessary” evidence to this line of questioning, which

explored the tenured faculty’s oral discussion of Leshem’s

qualifications, not any written documentation in the confidential

tenure dossier.

For the first time, Leshem now argues on appeal that the

confidential tenure dossier was “necessary” evidence because two

witnesses at the grievance hearing could not immediately recall

answers to specific questions. (AOB 47-48.) This argument is a

red herring. First, Professor Hadfield’s testimony regarding the

papers she sent to each external referee was not relevant to the

issues raised in Leshem’s grievance. Leshem did not assert any

claims regarding the solicitation of the external referee letters.

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(AR29-131.) In any event, USC’s written policies do not require a

candidate’s entire body of work to be sent to the external

reviewers. To the contrary, the template for solicitation letters

references the inclusion of “a sample of publications.” (AR797;

see also AR650-51.)

Second, Professor Klerman’s inability to immediately recall

the answers to specific questions did not impact the fairness of

the grievance hearing. Professors Hadfield and Marmor recalled

that the anonymous referee reports were not described in the

subcommittee report. Both confirmed that an editor’s “revise and

resubmit” letter was referenced (at Leshem’s request). (AR432-

34, 598.) Since Professor Hadfield, who authored the

subcommittee report, and one of Leshem’s witnesses provided

clear testimony on this topic, Professor Klerman’s testimony was

not necessary. (AR373.) Additionally, questions related to the

weight the subcommittee gave to Leshem’s limited citation counts

were not a proper procedural challenge to the tenure process.

USC’s written policies require an analysis of citation counts. (AR464, 770-71.) Thus, any such questions could only be relevant

to reconsidering the merits of USC’s academic decision not to

award Leshem tenure, which was not and could not be the

subject of Leshem’s grievance. (AR732, 738-39.)

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2. The Confidential Tenure Dossier Was Not Introduced As Evidence.

Leshem’s argument that the Panel’s in camera review of

the confidential tenure dossier deprived him of the right to know

the evidence on which the panel relied is based on a faulty

premise. (AOB 45-47.) The Panel did not rely on the confidential

tenure dossier in making its recommendation and the President

did not consider the confidential tenure dossier as evidence.

With respect to the tenure dossier, the Panel stated in its

recommendation: “The panelists read over the materials in the

file prior to the resumed hearing on March 27, 2015 and

unanimously agreed that the hearing could resume without the

introduction of the dossier into evidence.” (AR684.) The

President reiterated this point in his final decision, stating:

The Panel did not find that your dossier contained the contested referee reports and “unanimously agreed that the hearing could resume without the introduction of the dossier into evidence.” Its review of the dossier in camera was limited to findings that the dossier did not contain material and relevant evidence. . . . The dossier was never considered as evidence (Report, p. 2) and the Panel did not rely on it in finding facts or reaching its conclusion.

(AR6) (emphasis added.)

By arguing the Panel considered the tenure dossier,

Leshem is attempting to convert an in camera review into

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something it is not. “In 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’ asserted need for the documents is

correctly struck.” (Kerr v. U. S. Dist. Court for N. Dist. of

California (1976) 426 U.S. 394, 405.) It is not a review of the

substance of the documents for the purpose of reaching a decision

on the merits.

Here, there is no evidence that the Panel did anything

other than review the confidential tenure dossier to determine

whether it contained “necessary” evidence as alleged by Leshem.

Finding it did not (because the referee reports about which

Leshem complained were not in the confidential tenure dossier),

it was not admitted as evidence, or otherwise considered, and the

Panel and the President based their respective recommendation

and decision on the evidence presented at the grievance hearing.

(AR1-7, 683-721.)

Unlike the cases Leshem cites, he had access to all of the

documents and information on which the Panel relied to make

their recommendation and on which the President relied to make

his final decision. Leshem and his counsel were present at the

hearing, received all of the documents submitted to the Panel for

their consideration on the merits, and possessed the referee

reports. (AR361-682.)

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Leshem has cited no case law or evidence supporting his

contention that the Panel’s in camera review of the tenure dossier

rendered the hearing unfair. In fact, such a ruling would

effectively preclude in camera review in all administrative

proceedings. This would eliminate a useful mechanism for

resolving disputes regarding confidential documents and conflict

with case law authorizing administrative hearing officers to

conduct an in camera review. (Riverside County Sheriff’s Dep’t. v.

Stiglitz (2014) 60 Cal.4th 624, 648 [holding that when hearing an

administrative appeal from discipline imposed on a correctional

officer, an arbitrator may rule upon a discovery motion for officer

personnel records, including by conducting an in camera review].) The Panel’s decision to review the confidential tenure

dossier in camera to determine whether it contained necessary

evidence was fair, particularly in light of the important public

policy considerations supporting the confidentiality of the tenure

review process. To maintain the integrity of the tenure review

process and to protect the privacy rights of the professors who

evaluate tenure candidates, Courts have repeatedly recognized

that documents and information related to a specific candidate’s

tenure review should be protected from disclosure to the

candidate. (Pomona College, supra, 45 Cal.App.4th at p. 1726, fn.

9 [“The identities of [plaintiff’s] peer reviewers and their candid

views and opinions expressed during the tenure review process

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are protected by the constitutional right to privacy. Allowing this

privacy right to be threatened by the specter of civil discovery

would, in our opinion, be fatal to the proper functioning of this

review process.”]; Scharf v. Regents of Univ. of California (1991)

234 Cal.App.3d 1393, 1408 [“After balancing the interests in

disclosure of particular academic employees against a

university’s interest in confidentiality, courts have relied upon

the right of privacy not to grant but to deny disclosure of

information obtained in the peer review process.”]; Kahn v.

Superior Court (1987) 188 Cal.App.3d 752, 769 disapproved on

other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531

[“Excellence cannot be achieved unless faculty members, without

fear of disclosure, are able to express candid appraisals of the

qualifications of tenure candidates. If evaluators suspect that

their views may be aired in litigation, they unquestionably will be

less than candid in their critiques”]; King v. Regents of Univ. of

California (1982) 138 Cal.App.3d 812, 819–20 [“We conclude the

University’s need to maintain confidentiality outweighs any

marginal benefit to appellant from disclosure of the names of his

evaluators.”].) The public interest in maintaining the integrity of the

tenure review process has only been disturbed when a

countervailing public interest, such as the interest in preventing

unlawful discrimination, outweighs the privacy of the evaluators’

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and the university’s interest in maintaining confidentiality of the

process. (Lynn v. Regents of Univ. of California (9th Cir. 1981)

656 F.2d 1337, 1347 [“When determining whether tenure review

files, including peer review evaluations, are privileged, courts

have balanced the university’s interest in confidentiality, i.e., in

maintaining the effectiveness of its tenure review process, and

the need which Title VII plaintiffs have for obtaining peer

evaluations in their efforts to prove discriminatory conduct.”].) Leshem has not identified a countervailing public interest

that would warrant disclosure of the contents of his confidential

tenure dossier. He did not allege (nor can he) that the decision

not to award him tenure was based on unlawful discriminatory

animus. Thus, the Panel’s decision to review the confidential

tenure dossier in camera to determine whether it included

necessary evidence was fair and appropriate under the

circumstances.

B. The Panel Chair’s Decisions Were Consistent With The Faculty Handbook.

Contrary to Leshem’s assertion, the Panel did not have the

authority to order the production of any documents. Rather, the

Faculty Handbook states the Panel may use “its good offices to

help the grievant obtain pertinent evidence.” (AR737.) This provision does not authorize the Panel to order a university

administrator to produce confidential documents to the grievant.

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Consistent with the Faculty Handbook, the Panel Chair never

ordered the university to produce the confidential tenure dossier to Leshem. Rather, the Panel recommended that the tenure

dossier be provide to the Panel and Leshem. (AR222.)

On December 19, 2014, the Provost responded to the

Panel’s recommendation by stating that the tenure dossier could

not be provided to Leshem due to confidentiality. As a

compromise, the Provost stated the tenure dossier could be

provided to the Panel for their in camera review to allow them to

determine whether the dossier was necessary to reach a decision

on Leshem’s grievance. (AR227-29.)

By conducting an in camera review of the confidential

tenure dossier, the Panel did what it was authorized to do by the

Faculty Handbook. It used its good offices to help Leshem obtain

pertinent evidence, to the extent such pertinent evidence existed.

The Panel did not find that the confidential tenure dossier

included evidence necessary to the grievance proceeding. The

Panel’s conduct did not violate the Faculty Handbook and, as

described above, it did not render the grievance proceeding

unfair. Leshem had access to all of the evidence the Panel relied

on. He also possessed the referee reports about which he

complains, and had the ability to question the witnesses about

their use of the referee reports, although he chose not to do so.

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Thus, Leshem received a fair grievance proceeding and the Court

should affirm the Superior Court’s decision.3

II. THE SUPERIOR COURT PROPERLY DENIED LESHEM’S MOTION TO AUGMENT THE ADMINISTRATIVE RECORD

The Superior Court considered Leshem’s request to

augment the administrative record on two occasions: in

connection with Leshem’s noticed motion, which was heard and

denied on October 18, 2017, and in connection with Leshem’s

renewed request in his briefing on the merits of the Amended

Petition. On both occasions, the Superior Court denied Leshem’s

request because he failed to demonstrate that the confidential

tenure dossier was improperly excluded at the grievance hearing.

(AA, Vol. 5, pp. 1175, 1244.) The Superior Court analyzed the

administrative record demonstrating that the referee reports

were not part of the confidential tenure dossier and the case law

finding universities have a public policy interest in maintaining

3 Leshem also avers that the Panel’s statement that “there were procedural irregularities in the compilation of Professor Leshem’s dossier,” which did not have “any impact on the law school tenure committee’s deliberations and discussion,” deprived him of a fair hearing and violated the Faculty Handbook because the Panel did not specify the nature of the evidence on which it based its conclusion. (AOB 47, citing AR687.) As discussed in Section III(B)(4), infra, this argument is disingenuous. D

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the confidentiality of the tenure review documents. (AA, Vol. 5,

pp. 1175-1177, 1244.)

The Superior Court’s orders denying Leshem’s motion and

renewed request to augment the administrative record can only

be reversed if they are found to be an abuse of discretion. (Evans,

supra, 128 Cal.App.4th at p. 1144.) Leshem has not met (and

cannot meet) this standard.

Leshem’s argument relies exclusively on a

misinterpretation of California Code of Civil Procedure section

1094.6, subdivision (c), which applies to specific decisions made

by local agencies. Section 1094.6 is not applicable here. Section

1094.6(e), limits the application of Section 1094.6 to defined local

agencies, i.e. government entities, and even then, only to certain

“decisions” “‘suspending, demoting or dismissing an officer or

employee, revoking or denying an application for a permit or

license, or denying an application for any benefit or allowance.’”

(County of San Diego v. Assessment Appeals Bd. No. 2 (1983) 148

Cal.App.3d 548, 554); see also Foster v. Civil Service Com. (1983)

142 Cal.App.3d 444, 449-450 [explaining the purpose of Section

1094.6 was to provide a uniform 90-day statute of limitations for

specific decisions made by local agencies].)

USC is a private entity, not a local government agency, and

its decision not to award Leshem tenure was not the type of

“decision” defined in Section 1094.6(e). Thus, Section 1094.6 is

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not applicable and Leshem’s assertion that the confidential

tenure dossier should have been considered a “rejected exhibit,” is

meritless.4 Indeed, if Section 1094.6 were applicable to this case,

Leshem’s action would be untimely. Section 1094.6(b) requires a

petition for writ of mandate to be filed “not later than the 90th

day following the date on which the decision becomes final . . .”

USC’s decision to deny Leshem’s grievance became final on June

24, 2015. (AR1-7.) Leshem’s Petition was not filed until January

10, 2017, more than a year later. (AA, Vol. 1, p. 13.)

In any event, even if Section 1094.6 were applicable to

USC’s decision (which it is not), the confidential tenure dossier

was not rejected as an exhibit. The Panel reviewed the

confidential tenure dossier in camera to determine whether it

included evidence necessary to the grievance hearing. Finding it

did not, the Panel did not ask the Provost to consider producing

any portion of the file to Leshem. Thus, the confidential tenure

dossier was neither produced nor considered and rejected as an

exhibit.

4 Similarly, Aluisi v. Fresno County (1958) 159 Cal.App.2d 823 is inapposite. In Aluisi, an administrative record was found to be inadequate because a shorthand reporter was not available to transcribe the administrative hearing and the audio recording failed to capture the complete hearing. (Id. at 825-26.) Leshem has not alleged that the actual record of the grievance hearing was flawed or inadequate. D

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III. USC’S DECISION DENYING LESHEM’S GRIEVANCE WAS SUPPORTED BY THE EVIDENCE

As set forth above, in light of Pomona College’s holding, the

Court should limit its review to the fairness of USC’s grievance

proceeding. However, even if the Court could review the merits

of USC’s decision to deny Leshem’s grievance, the Superior

Court’s decision should be affirmed. Leshem concedes that the substantial evidence standard of

review applies. However, he misrepresents the breadth of the

Court’s review. As the Court recently explained:

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 findings 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 findings are not supported by substantial evidence.

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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 finder of fact to resolve, and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact.

(UCSD, supra, 5 Cal.App.5th at p. 1073, citations and quotations

omitted, emphasis added; see also West Chandler Boulevard

Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th

1506, 1518, citations and quotations omitted [“neither we nor the

trial court may disregard or overturn the finding for the reason

that it is considered that a contrary finding would have been

equally or more reasonable.”]; Northern Inyo Hosp. v. Fair Emp.

Practice Com. (1974) 38 Cal.App.3d 14, 24 [“Unless the finding,

viewed in the light of the entire record, is so lacking in

evidentiary support as to render it unreasonable, it may not be

set aside.”]; Ogundare v. Department of Industrial Relations

(2013) 214 Cal.App.4th 822, 829–830 [“If the administrative

decision is supported by substantial evidence, we may not

overturn it merely because a contrary finding would have been

equally or more reasonable.”].) Leshem also fails to acknowledge that as the grievant he

bore the burden of persuasion, which could “only be satisfied by a

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clear, persuasive preponderance of the evidence in the record

considered as a whole.” (AR738.) USC’s decision was supported

by substantial evidence, particularly when viewed in light of

Leshem’s burden of persuasion.

A. The President’s Decision Denying Leshem’s Grievance On The Grounds That It Was Untimely Is Supported By The Evidence.

The President correctly denied Leshem’s grievance as time-

barred. (AR1.) The Faculty Handbook required Leshem to file

his grievance “within nine calendar months of discovery of the

action on which the grievance is based.” (AR733.) Leshem’s

grievance challenged the procedure utilized to review his

candidacy for tenure, not the procedure later utilized to deny his

request for reconsideration. (AR8-25, 29-131.) However, Leshem

filed his grievance in September 2013, more than fourteen

months after the May 1, 2012 decision not to award him tenure.

(AR1, 8-25, 63.)

Leshem does not dispute that his grievance was untimely.

Because the untimeliness alone was sufficient to deny Leshem’s

grievance, the Court should affirm the Superior Court’s decision

denying Leshem’s Amended Petition without considering his

other evidentiary arguments.

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B. USC’s Finding That The Referee Reports Did Not Impact The Final Decision-Makers’ Conclusion Is Supported By The Evidence.

Even if Leshem’s grievance were timely, USC’s finding that

the referee reports did not impact the tenured faculty’s

conclusions is supported by substantial evidence. Professors

Hadfield and Klerman confirmed that the subcommittee did not

include the anonymous referee reports in the tenure dossier, did

not reference them in the subcommittee’s report, did not provide

them to the tenure committee, and did not provide them to the

external referees who USC asked to evaluate Leshem’s work.

(AR432, 439-40, 468, 538, 654.) Professors Shapiro and Marmor,

likewise, confirmed that the tenured faculty did not discuss the

substance of the referee reports when they met to discuss

Leshem’s candidacy for tenure. The consistent testimony

establishes that, at most, Professor Klerman made an obscure

reference to the reports, which no one took seriously. (AR580,

603-05.)

Leshem’s argument to the contrary—that the referee

reports formed the basis for the tenured faculty’s decision to vote

against awarding him tenure—is not supported by the evidence. D

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1. The Panel Properly Weighed The Evidence And Evaluated Credibility In Reaching Its Recommendation.

As an initial matter, Leshem asks this Court to substitute

its judgment for that of the Panel in assessing witness credibility.

Leshem avers the Panel’s reliance on Professor Hadfield’s and

Klerman’s testimony was unreasonable because it purportedly

was not credible. (AOB 54-56.)

However, Leshem confuses the issue of credible (i.e.

competent) evidence with an assessment of witness credibility.

In the sole case Leshem cites, the Court found the administrative

decision was not supported by the evidence because it relied on

evidence that was purely speculative, and therefore not

competent or credible. (County of San Diego, supra, 148

Cal.App.3d at pp. 558-59.)

In contrast, where witnesses testify about events within

their personal knowledge, Courts have found “[c]redibility is an

issue of fact for the finder of fact to resolve . . . .” (UCSD, supra, 5

Cal.App.5th at p. 1073; accord M.N. v. Morgan Hill Unified

School Dist. (2018) 20 Cal.App.5th 607, 616; Doe v. Occidental

College (2019) 37 Cal.App.5th 1003, 1019.) Professors Hadfield,

Klerman, Marmor, and Shapiro testified before the Panel about

matters within their own personal knowledge. Thus, the Court

should defer to the Panel’s assessment of the credibility of the

witnesses who testified before them.

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Even if the Court could make an independent assessment

of witness credibility (which it cannot), the evidence supports the

Panel’s finding that the referee reports did not play a role in the

tenured faculty’s discussion of Leshem’s qualifications for tenure.

Professors Hadfield, Klerman, and Marmor all testified that

Professor Klerman made an “obscure” statement that he felt the

repeated rejection of Leshem’s articles by editors and referees

carried more weight than the external referee letters solicited

from colleagues at other institutions. (AR440-44, 538-44, 547-48,

551-52, 603-05.)

Professors Shapiro and Marmor confirmed that Professor

Klerman’s comment did not generate any discussion among the

faculty regarding the referee reports. (AR580, 605.) In fact,

Professor Shapiro stated he could not recall if Professor Klerman

made the comment at all, and stated that “if [Professor Klerman]

had said that the referee reports were as reliable as the letters,

no one would have taken him seriously.” (AR580.)

The testimony, including Professor Marmor’s own

testimony, contradicted Professor Marmor’s assertion in his letter

to the UCAPT Panel that the referee reports played a crucial role

in the tenured faculty’s deliberations. (AR709.) Because the

witness testimony was internally consistent, and uniformly

confirmed that the referee reports did not play a role in the

tenured faculty’s deliberations, the Panel’s recommendation and

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the President’s decision are supported by the evidence. Further,

the Panel’s recommendation reflects a reasoned weighing of the

evidence, including an assessment of witness credibility, which is

their role.

2. There Is No Evidence That The Referee Reports Were Incorporated Into The Subcommittee Report.

Leshem’s assertion that the contents of the referee reports

were incorporated into the subcommittee’s report is erroneous.

(AOB 54.) Leshem’s argument relies exclusively on Professor

Marmor’s claim that the subcommittee report included a quotation to an editor’s letter and data regarding how many of

Leshem’s articles had been rejected. (AR598.)

Contrary to Leshem’s assertion, Professor Marmor’s statements do not establish that the contents of the referee

reports were incorporated into the subcommittee report. Rather,

Professor Marmor’s comments establish exactly what the Panel

and President found: that at Leshem’s request, the subcommittee

evaluated Leshem’s unpublished work. (AR2, 687.) As part of

that evaluation, the subcommittee referenced a “revise and

resubmit” letter that Leshem received from a journal editor. (Id.)

The subcommittee’s reference to the letter was consistent

with USC’s policies. When evaluating unpublished work or

pending grant applications, the UCAPT Manual permits and

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encourages the review of “[e]valuations of the candidate’s work

from publishers’ reviewers, if available,” and “‘[p]ink sheets’5 of

pending grants.” (AR793, 844.)

Astonishingly, Leshem goes to great lengths to fault USC’s

consideration of an editor’s “revise and resubmit” letter, when Leshem himself specifically asked the subcommittee to consider

the fact that his article received a “revise and resubmit” letter.

(AR61.) To fully evaluate the significance of the letter, the

subcommittee had to review it and evaluate whether it suggested

that Leshem’s work was likely to be published by the journal in

the near future. (AR437-38.)

It defies logic for Leshem to assert that the subcommittee

should have viewed his receipt of a “revise and resubmit” letter

as a positive indication that his work was likely to be published

without considering that editor’s concluding cautionary

statement to Leshem: “I must caution you that we see the bar on

the revision as quite high. Indeed, it is fair to say that a revision

that addressed these concerns would be a fundamentally

different paper than the current submission.” (AR61, 163.)

Finally, Leshem attempts to conflate the subcommittee’s

analysis of his unpublished work—including the pattern of

rejection of his submitted work—with an analysis of the contents

5 A “pink sheet” of a pending grant contains the reviewers’ summary of the merits of the grant. D

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of the referee reports. In assessing the value of Leshem’s

unpublished work, the subcommittee was entitled to consider the

undisputed fact that Leshem’s submissions had been rejected by

multiple journals. The UCAPT Manual does not prohibit this

analysis. To the contrary, it cautions faculty members that

unpublished work is not regarded as finished and does not carry

the same weight as published work. (AR764.)

The portions of the UCAPT Manual that Leshem cites are

inapposite. (AR766, 796.) They do not address unpublished

work. Instead, they address unsolicited letters regarding a

candidate’s qualifications and overall consistency in the tenure

review process. Nothing in these provisions prohibits the use of

data regarding the rejection of a candidate’s submitted,

unpublished work. Indeed, such a prohibition would make no

sense. If a candidate’s work had been rejected by all reputable

journals in the area, that is a factor USC would want to consider

in assessing the likelihood that the work would be published in

the near future. Leshem’s reliance on Good Practice in Tenure Evaluation:

Advice for Tenured Faculty, Department Chairs, and Academic

Administrators is, likewise, unavailing. This guidance is not

USC policy. (AR757.) While USC may have benefitted from

considering it in setting its own policy, USC did not adopt it as its

own. In any event, the guidance does not prohibit the analysis of

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data related to the rejection of unpublished work. (AR126.)

In short, contrary to Leshem’s assertion, the evidence does

not establish that the referee reports were incorporated into the

subcommittee’s report.

3. USC’s Finding That The Subcommittee’s Receipt Of The Referee Reports Did Not Impact The Tenured Faculty’s Deliberations Is Supported By The Evidence.

USC’s finding that the anonymous referee reports did not

impact the tenured faculty’s deliberations is supported by

substantial evidence, particularly when viewed in light of

Leshem’s burden of persuasion. Leshem’s assertions to the

contrary are unavailing and seek to have this Court ignore the

deferential substantial evidence standard of review. (AOB 58-

60.)

Notwithstanding other contradictory evidence, Leshem

argues that Professor Shapiro’s testimony conclusively

established that Professor Hadfield mentioned the referee reports

during the tenured facility’s deliberations. In so doing, Leshem is

again asking the Court to make its own credibility

determinations, rather than deferring to the Panel’s assessment

based on their observations of the witnesses. As described above,

the Panel was entitled to, and did, believe Professor Hadfield’s

testimony over Professor Shapiro’s on this topic.

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Indeed, the Panel’s reliance on Professor Hadfield’s

testimony is reasonable in light of the testimony provided by the

other witnesses. Professor Shapiro is the only witness who

testified that Professor Hadfield made a comment about the referee reports. Professors Hadfield and Marmor testified that

Professor Hadfield did not mention the referee reports during the

tenured faculty’s deliberations. (AR439, 603.) Since Professors

Hadfield’s and Marmor’s statements were consistent, it was

reasonable for the Panel to credit their testimony over Professor

Shapiro’s.

Next, Leshem argues that USC’s finding is not supported

by the evidence because Professor Hadfield shared the referee

reports with the members of the three-person subcommittee and

talked to Professor Marmor about an editor’s review of Leshem’s

work. These allegations, even if true, do not undermine USC’s

finding that the referee reports had no effect on the tenured

faculty’s deliberations and “were not before the decision-makers:

the full faculty, the dean, and the Provost advised by UCAPT.”

(AR2, 687.) As Leshem admitted in his Opening Brief, the

tenured faculty “were not privy to the referee reports.” (AOB 59.)

Thus, the subcommittee’s receipt of the reports, and Professor

Hadfield’s alleged discussion with Professor Marmor, did not

influence the tenured faculty’s deliberations. The tenured faculty

could not be influenced by information they did not have.

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Similarly, Leshem’s assertion that Professor Klerman

encouraged the faculty to rely on the referee reports instead of

the standard external review letters is not supported by the

evidence. As described above, Professor Klerman made a brief

statement that he felt the repeated rejection of Leshem’s articles

by editors and referees carried more weight than the external

referee letters solicited from colleagues at other institutions

during the tenure review process. (AR440-44, 538-44, 547-48,

551-52, 603-05.) Professor Klerman’s comment did not generate

any discussion among the faculty regarding the referee reports.

(AR 580, 605.) Viewing the record as a whole, Professor

Klerman’s brief comment does not constitute persuasive evidence

of a procedural defect that materially inhibited the tenure review

process. (AR732, 738.)

Finally, Leshem again attempts to conflate the

subcommittee’s analysis of his unpublished work—including the

pattern of rejection of his submitted papers—with an analysis of

the contents of the referee reports. As described above, in

assessing the value of Leshem’s unpublished work, the

subcommittee was entitled to consider the undisputed fact that

Leshem’s unpublished work had been rejected by multiple

journals.

In sum, Leshem failed to meet his burden of demonstrating

that a procedural defect materially inhibited the tenure review

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process. The Grievance Panel’s and the President’s conclusions

that the referee reports did not play a role in the tenured

faculty’s discussion are supported by the evidence. (AR2, 687.)

4. The Panel’s Recommendation And The President’s Decision Analyze The Evidence And Explain The Rationale For Their Findings.

Leshem avers that the Panel’s statement that “there were

procedural irregularities in the compilation of Professor Leshem’s

dossier,” which did not have “any impact on the law school tenure

committee’s deliberations and discussion,” is too vague. He

claims this demonstrates an abuse of discretion. (AOB 56-57.)

Leshem’s argument is disingenuous. The sentence Leshem quoted is a concluding sentence. The preceding sentences

explain the evidence the Panel relied on and their analysis of the

evidence. Read as a whole, the Panel’s six page recommendation

letter specifies the alleged procedural irregularities at issue (the

subcommittee’s receipt of the referee reports) and the Panel’s

rationale for finding the procedural irregularities did not impact

Leshem’s tenure review. (AR683-88.) Similarly, the President’s

seven page final decision analyzes the evidence presented at the

grievance hearing and includes citations to specific testimony to

support its finding. (AR1-7.)

Thus, the Panel’s recommendation and the President’s

decision “bridge the analytic gap between the raw evidence and Doc

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the ultimate decision.” (Honey Springs Homeowners Assn. v.

Board of Supervisors (1984) 157 Cal.App.3d 1122, 1151.) They

both explain their analytical route with citations to specific

evidence. Further, as discussed in Sections III(A)-(E), contrary to

Leshem’s assertions, the Panel’s recommendation and the

President’s decision are supported by the evidence and their

conclusions are supported by their findings.

C. Any Purported Failure To Warn Leshem That He May Not Be Awarded Tenure Did Not Justify Granting His Grievance.

Leshem argues that the Panel erred when it found

Professor Klerman cautioned Leshem about the quantity of his

published scholarship and its relevance to legal scholars. (AOB

61-62.) He further argues that his grievance should have been

granted because he purportedly was not well mentored. (AOB

65.) His argument is a red herring.

As the President found, “a claim of no early notice is not

grounds for a grievance challenging a tenure decision under

Faculty Handbook 7-A, and supposed lack of early notice would

not be remedied” by further reconsideration of Leshem’s

qualifications for tenure. (AR3.)

The UCAPT Manual warns candidates that “[n]either

advice nor predictions [regarding a candidate’s tenure prospects]

by any USC official except the Provost are definitive.” (AR762.)

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Thus, any alleged failure by the law school faculty to provide

Leshem with notice that he may not be awarded tenure could not

be considered a procedural defect that materially inhibited the

tenure review process.

In any event, there is ample evidence that Professor

Klerman and the Dean of the law school cautioned Leshem that

failure to demonstrate productivity and an ability to connect with

the legal field could result in the denial of tenure. (AR503-08,

517-26, 557-60, 715-17.) These concerns were communicated to

Leshem orally during review meetings and summarized in

written memoranda that Professor Klerman sent to the Dean.

(AR503-508.)

Leshem attempts to undermine Professor Klerman’s

statements by noting Professor Klerman wrote two memoranda

regarding the same meeting. In doing so, Leshem misconstrues

the record, arguing that Professor Klerman wrote two different

memorandum regarding Leshem’s fifth-year review that took

place at the end of 2010 or the beginning of 2011.6

6 Leshem also mischaracterized Professor Klerman’s statements regarding his practice of retaining records related to the review meetings. In Professor Klerman’s complete testimony, he explained that he tries to keep all of his email and there was a good chance he still had the transmittal emails he sent to the Dean with the memoranda he prepared. He also testified he still had the word versions of the memoranda on his computer. (AR558-60.) D

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In fact, Professor Klerman wrote two memoranda

summarizing an earlier review meeting he had with Leshem at

the end of 2009. (AR716-17 [memoranda dated December 7, 2009

and March 12, 2010].) He wrote a single memorandum regarding

his subsequent review meeting with Leshem at the beginning of

2011. (AR715 [memorandum dated January 26, 2011].)

The memoranda regarding the 2009 meeting are consistent;

however, as Professor Klerman testified, the one dated December

7, 2009 is more detailed because he wrote it when the meeting

was fresher in his memory. (AR507-08, 716-17.)

The detailed memorandum regarding the January 2011

review meeting corroborates Professor Klerman’s testimony that

he told Leshem the faculty had “concerns about quantity of

publication,” and “concerns about connection and knowledge of

the law, including where things were being published,” i.e.,

exclusively in peer reviewed journals rather than law reviews.

(AR504-05, 715.) Professor Klerman’s meetings with Leshem, in

particular the January 2011 meeting, and the Dean’s September

2011 meeting with Leshem establish that the law school advised

Leshem of concerns regarding his tenure prospects and gave him

appropriate advice regarding whether he should proceed with the

tenure review. (AR444-46, 453-54, 504-05, 715.) Leshem simply

chose not to follow the advice he was given. (AR464-65, 641-42.)

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Although the Panel suggested ways to improve the annual

review process, it explicitly found “no wrongdoing on the part of

the law school in this matter.” (AR687.) Accordingly, the Panel

and the President properly concluded that any purported failures

to mentor Leshem did not warrant granting his grievance and

reconsidering his qualifications for tenure (for a third time).

D. Leshem’s Assertions Regarding His Publication Rate And Draft Papers Improperly Seek Judicial Review Of His Academic Credentials And Suitability For Tenure At USC.

Leshem argues the Panel erred when it stated: “testimonies

show that over the next years, concerns grew about the rate in

which Leshem was publishing, where he was trying to publish,

and the establishment of expertise over a particular field of law.

Indeed, between 2009 and 2011 Leshem did not have any

additional article accepted for publication.” (AR687; AOB 62-64.)

Leshem contends this statement is erroneous because his draft

papers were not given appropriate weight during his tenure

review and the evidence does not support viable concerns

regarding Leshem’s qualifications. (AOB 62-64.)

Leshem’s arguments are not supported by the evidence and

improperly seek the Court’s independent review of his

qualifications for tenure. As described at length above, and

evidenced by the record, USC analyzed Leshem’s unpublished

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papers when evaluating his qualifications for tenure. (See

Section III(B)(2).) It just did not place as much value on the

drafts as Leshem believes it should have. However, USC’s

academic judgment regarding Leshem’s “research scholarship,

and professional stature” are not subject to judicial review.

(Pomona College, supra, 45 Cal.App.4th at p. 1725.)

Further, the record provides ample evidence that the

tenured faculty had significant concerns about Leshem’s

qualifications. Professor Shapiro’s testimony (on which Leshem

relies exclusively to support his argument) acknowledges this

fact. While Professor Shapiro may not personally have agreed

with the other faculty members’ concerns and critiques, he

confirms that the criticism did exist. (AR570-75.) Professors

Klerman, Hadfield, Marmor, and Shapiro all provided testimony

substantiating the existence of concerns regarding Leshem’s low

volume of published papers and his failure to establish an area of

expertise, among other issues. (AR449-50, 473-78, 480-84, 496-

500, 570-75, 583-84, 614-15, 651-52.) This testimony, and the

Panel’s reference to it, support USC’s decision to deny Leshem’s

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E. USC’s Finding That Leshem Failed To Carry His Burden Of Demonstrating “Bias Or Prejudice Based On Considerations Prohibited By Law,” Is Supported By The Evidence.

Leshem cites the testimony of Professors Marmor and

Shapiro to argue there was evidence of bias by the subcommittee

members. (AOB 66.) The testimony Leshem cites suggests that

Professors Marmor and Shapiro did not understand the

subcommittee’s criticism of Leshem’s scholarship and therefore

surmised they may have been biased. Such speculation, based on

a difference in opinion among faculty, falls well short of

demonstrating bias based on considerations prohibited by law.

(AR732.) For the reasons set forth in the Panel’s

recommendation and the President’s final decision, Leshem failed

to carry his burden of establishing bias, let alone bias based on

considerations prohibited by law. (AR3-4, 687.)

F. USC Made Findings On The Arguments Leshem Advanced During The Grievance.

In his Opening Brief, Leshem faults USC for not making

certain findings. (AOB 67-68.) However, the Panel’s findings

were based on the arguments Leshem advanced during the

grievance proceeding. Leshem never argued that Dean

Rasmussen violated procedural rules. (AR29-131.) He included a

vague reference to the use of citation counts in his Amended

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Grievance, but abandoned this argument during the grievance

hearing and in his subsequent submissions when the Panel

pointed out that the UCAPT Manual does not prohibit the use of

citation counts. (AR464, 722-27.) In fact, the UCAPT Manual

states citation counts provide “some evidence of the impact of [a

faculty member’s] work” and requires the department to do “a

careful analysis of the citations.” (AR770-71.)

Finally, Leshem did not pursue any claims related to

“procedural irregularities” in the commissioning of external

review letters. During the hearing, Professor Marmor stated his

personal belief that the subcommittee should have sent Leshem’s

entire body of published work, rather than a sample of his

publications, to each referee. However, Leshem did not advance

this argument in his Amended Grievance or in his response to the

Panel’s recommendation, likely because Professor Marmor’s

testimony conflicts with USC’s written policies. (AR610-13, 618,

650-51.) USC’s written policies do not require a candidate’s

entire body of work to be sent to the external reviewers. To the

contrary, the template for solicitation letters references the

inclusion of “a sample of publications,” not the candidate’s entire

body of work. (AR797.)

Leshem cannot fault USC for failing to make findings on

arguments he did not advance. Indeed, the Court of Appeal

recently recognized that a petitioner waives an argument not

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raised in the appeal of an administrative proceeding. (Doe v.

University of Southern California (2018) 28 Cal.App.5th 26, 41-

42; City of Walnut Creek v. County of Contra Costa (1980) 101

Cal.App.3d 1012, 1019-1020, [a party must present all legitimate

issues before the administrative tribunal]; Owen v. Sand (2009)

176 Cal.App.4th 985, 995 [argument not raised in administrative

proceeding or in the trial court is forfeited].)

IV. THE SUPERIOR COURT PROPERLY SUSTAINED USC’S DEMURRER TO THE FIRST AND SECOND CAUSES OF ACTION

Leshem’s emphasis on what he perceives to be errors in the

Superior Court’s rationale for sustaining USC’s demurrer is

misplaced. The Court of Appeal does not review the validity of

the Superior Court’s reasoning. Rather, the order should be

affirmed if it was “correct on any theory.” (Berg & Berg

Enterprises, LLC, supra, 178 Cal.App.4th at pp. 1034–1035.)

Leshem’s first and second causes of action sought to dissect

the tenure review process from the final grievance decision,

improperly asking the Court separately review the fairness of an

interlocutory step in USC’s process rather than a final decision.

For example, in his first cause of action, Leshem asked the Court

to issue a writ because, he alleged, the tenure review committee’s

consideration of citations counts prevented him from receiving

tenure. (AA, Vol. 4, p. 911.) In his second cause of action,

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Leshem asked the Court to issue a writ because, he alleged, the

tenure committee’s consideration of the referee reports prevented

him from obtaining tenure. (AA, Vol. 4, p. 912.) In each cause of

action, Leshem sought to parse USC’s tenure decision from the

final grievance decision and asked the Court to opine on the

validity of USC’s academic judgment regarding Leshem’s

suitability for tenure.7 Accordingly, Leshem’s first and second

causes of action were properly dismissed because they did not

challenge a final administrative decision made after an

evidentiary hearing (as required by Section 1094.5) and USC’s

7 In each cause of action, Leshem included an alternative request for relief, asserting the Court should issue a writ because the Panel failed to grant Leshem relief based on the tenure committee’s purported improper use of citation counts and the referee reports. (AA, Vol. 4, pp. 911-912.) Leshem did not address this alternative request for relief in his Opening Brief. Accordingly, he has waived any argument he could make that USC’s demurrer should have been overruled based on his alternative theory. (Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581, 609 [“A contention made for the first time in an appellant’s reply brief, unaccompanied by any reason for omission from the opening brief, may be disregarded.”]) In any event, Leshem’s alternative request for relief is deficient because it fails to address a final decision. The Panel did not, and was not authorized to, make any final decision on Leshem’s grievance. The Faculty Handbook states: “[a]ll grievance panel decisions are recommendations to the President of the University.” (AA, Vol. 1, p. 271.) D

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substantive decision to deny tenure is not subject to direct

judicial review.

A. USC’s Decision Not To Award Leshem Tenure Was Not A Final Decision Within The Meaning Of Section 1094.5.

For the purposes of Section 1094.5, “[a] decision attains the

requisite administrative finality when the agency has exhausted

its jurisdiction and possesses no further power to reconsider or

rehear the claim.” (Long Beach Unified Sch. Dist. v. State of

California (1990) 225 Cal.App.3d 155, 169; Hongsathavij v.

Queen of Angels/Hollywood Presbyterian Med. Ctr. (1998) 62

Cal.App.4th 1123, 1135 [affirming that the court must review the

validity of the final administrative order, not the validity of

interim orders subject to internal appeal to the final adjudicatory

tribunal]; Kumar v. Nat’l Med. Enterprises, Inc. (1990) 218

Cal.App.3d 1050, 1055 [“the report and recommendation of the

AHC [an interim board whose recommendation was subject to

internal appeal] here is not a ‘final’ decision which can be

appealed from separately.”]; Du Four v. Unemployment Ins.

Appeals Bd. (1975) 49 Cal.App.3d 863, 866-67 [rejecting

petitioner’s contention that she was entitled to review of an

interlocutory order that became “final” when her appeal of that

order was denied; the order subject to review was the order

denying her appeal, not the interlocutory order].)

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USC’s 2012 decision to deny Leshem tenure was not a final

decision within the meaning of Section 1094.5. As Leshem

admitted, he first sought reconsideration of the 2012 decision and

then “appealed the tenure [decision] via USC’s internal grievance

process.” (AA, Vol. 1, pp. 45-46, Vol. 4, p. 909.) Leshem’s request

for reconsideration could have resulted in a reversal of the tenure

decision and his grievance could have resulted in a new tenure

review, which could have resulted in the award of tenure. (AA,

Vol. 1, p. 271, Vol. 2, p. 336.) Thus, USC had not exhausted its

jurisdiction or power to reconsider the tenure decision as of May

1, 2012 and the tenure decision was not final within the meaning

of Section 1094.5.

Leshem’s assertion in the Amended Petition that USC’s

2012 decision not to award him tenure was “final” erroneously

relied on the colloquial use of the word “final” rather than the

legal definition of a final decision subject to Section 1094.5

review. A decision can be “final” for the purposes of a certain

department or agency’s review, but if there are avenues for an

administrative appeal or further administrative consideration,

the decision is not “final,” for the purposes of Section 1094.5

review. (California Water Impact Network v. Newhall County

Water Dist. (2008) 161 Cal.App.4th 1464, 1487 [rejecting a

petitioner’s request for review of a “final” decision made by a

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water provider because it was subject to further review by a lead

agency].)

Leshem also argued that case law authorizes judicial

review of the fairness of a tenure review process. However,

nothing in the cases Leshem cited contradicts the express

language of Section 1094.5, which permits judicial review only of a “final administrative order or decision.”

The Court of Appeal’s statement in Pomona College, supra

– that a professor’s “exclusive remedy for any procedural defects

which he believes existed in the tenure review or grievance

processes is administrative mandamus” – does not override the

language of Section 1094.5 and the case law cited above. (Id. at

p. 1729.) In fact, Pomona College did not address the finality of a

tenure decision. Rather, the plaintiff in Pomona College sought

to recover monetary damages based on causes of action for breach

of contract, wrongful termination, and breach of implied

covenants following a university’s denial of tenure. On Pomona

College’s demurrer, the Court of Appeal held that professors who

are denied tenure may not seek monetary damages from a jury

and must instead pursue a writ of administrative mandamus

addressing the fairness (but not the substance) of the

administrative hearing. (Id.) Similarly, in Gutkin, a professor

“brought a civil action for damages to challenge the revocation of

his tenure,” and the Court of Appeal dismissed his claim, finding

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his exclusive remedy was Section 1094.5 review. (Gutkin v.

University of Southern California, supra, 101 Cal.App.4th at pp.

970-71.) Pomona College and Gutkin did not hold—as Leshem

alleges—that a Section 1094.5 claim can be used at a professor’s

discretion to separately challenge the denial of tenure and/or the

denial of a tenure-related grievance. The express language of

Section 1094.5 prohibits Leshem’s request that the Court sever

the interlocutory tenure decision from the denial of his tenure-

related grievance (the final decision). Accordingly, the first and

second causes of action were properly dismissed because they did

not challenge a final decision as required under Section 1094.5.

B. USC’s Tenure Review Process Is Not A Hearing Within The Meaning Of Section 1094.5.

Leshem misrepresents USC’s policies to argue the tenure

review process is a “hearing” within the meaning of Section

1094.5. He claims that the subcommittee was required to meet

with him, discuss the substance of its report with him, obtain his

response, and then share his response with the larger tenure

committee comprised of the tenured law school faculty. (AOB 71-

72.) Not so. While the subcommittee and the Dean meet with

tenure candidates to discuss the subcommittee’s report, there is

no opportunity for the candidate to respond to the report, nor is

there any requirement that the subcommittee share the

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candidate’s response with any other body at USC. (AA, Vol. 2, p.

7.) Instead, the purpose of the meeting is to alert the candidate

to potential issues with his or her tenure prospects so the

candidate can make an informed decision regarding whether to

proceed. Dean Rasmussen and Professor Hadfield had such a

meeting with Leshem, and he chose to proceed with the tenure

review notwithstanding the substantive issues identified by the

subcommittee. (AR444-46, 453-54, 464-65.)

Providing advice to a candidate does not convert USC’s

tenure review process into a hearing. Unlike Pomona College,

there is no administrative body that is tasked with interviewing

the candidate and the relevant faculty to evaluate the evidence

offered by each party. (Pomona College, supra, 45 Cal.App.4th at

p. 1728.) Thus, as the Superior Court found, USC’s tenure review

process is not a hearing—the tenure candidate is not given notice

of potential “charges” and an opportunity to respond. (300

DeHaro St. Inv’rs v. Dep’t of Hous. & Cmty. Dev. (2008) 161

Cal.App.4th 1240, 1250-51 [“even if a ‘purely documentary’

hearing can satisfy Section 1094.5, there must still be something

in the nature of a hearing, i.e., an adversarial process in which

the agency resolves disputed facts after affording interested

parties an opportunity to present evidence.”].)

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C. Leshem’s First And Second Causes Of Action Improperly Sought Judicial Review Of The Basis For USC’s Academic Judgment To Deny Him Tenure.

Even if USC’s decision not to award Leshem tenure was

separately reviewable (which it is not), Leshem’s first and second

causes of action would still fail because they challenge the

substantive basis for USC’s decision. Leshem confirmed in his

opposition to USC’s demurrer that he believed the Court should

use his first and second causes of action to delve into USC’s

substantive decision. (AA, Vol. 4, pp. 988-990.) Case law

expressly precludes this type of review. (Pomona College, supra,

45 Cal.App.4th at p. 1727; Gutkin, supra, 101 Cal.App.4th at pp.

977-978; Pollock, supra, 112 Cal.App.4th at p. 1422.) Indeed,

Pomona College cautioned against allowing professors to pursue

substantive challenges masquerading as procedural claims:

Corin’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’ Corin’s academic qualifications and accomplishments will necessarily require the trier of fact to evaluate de novo Corin’s true abilities as a scholar . . . [thus] judicial review of tenure decisions in California is limited to evaluating the

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fairness of the administrative hearing in an administrative mandamus action.

(Pomona College, supra, 45 Cal.App.4th at p. 1727.)

Leshem’s first and second causes of action presented a

substantive challenge to USC’s tenure decision, masquerading as

a procedural claim. Accordingly, even if Leshem could separately

state a claim for alleged procedural deficiencies in the tenure

review process, rather than the final decision to deny his

grievance (which he cannot), his first and second causes of action

were still properly dismissed on demurrer.

CONCLUSION

For the reasons identified above, the University of

Southern California respectfully requests that the Court affirm

the judgment.

Dated: February 4, 2020 YOUNG & ZINN LLP

By: /s/ Karen J. Pazzani Karen J. Pazzani

Attorneys for Respondent, UNIVERSITY OF SOUTHERN

CALIFORNIA

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CERTIFICATION

Appellate counsel certifies that this document contains

13,822 words. Counsel relies on the word count of the computer

program used to prepare the document.

Dated: February 4, 2020 YOUNG & ZINN LLP

By: /s/ Karen J. Pazzani Karen J. Pazzani

Attorneys for Respondent, UNIVERSITY OF SOUTHERN

CALIFORNIA

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PROOF OF SERVICE

I am a resident of or employed in the County of Los Angeles; I am over the age of eighteen years and not a party to the within action; my business address is: 1150 South Olive Street, Suite 1800, Los Angeles, California 90015.

On this date February 4, 2020, I served the RESPONDENT'S BRIEF on all persons interested in said action in the manner described below and as indicated on the service list:

SEE ATTACHED SERVICE LIST

X By TrueFiling — I electronically transmitted the above-referenced documents pursuant to California Rules of Court, rule 8.71(a) and through the TrueFiling electronic filing system.

X By U.S. Mail as follows: I am "readily familiar" with Young & Zinn LLP's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of party served, service shall be presumed invalid if postal cancellation date or postage meter is more than one (1) day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this 4th day of February, 2020.

79

PROOF OF SERVICE

I am a resident of or employed in the County of LosAngeles; I am over the age of eighteen years and not a party tothe within action; my business address is: 1150 South OliveStreet, Suite 1800, Los Angeles, California 90015.

On this date February 4, 2020, I served theRESPONDENT'S BRIEF on all persons interested in saidaction in the manner described below and as indicated on theservice list:

SEE ATTACHED SERVICE LIST

X By TrueFiling — I electronically transmitted the above-referenced documents pursuant to California Rules of Court, rule8.71(a) and through the TrueFiling electronic filing system.

X By U.S. Mail as follows: I am "readily familiar" with Young& Zinn LLP's practice of collection and processing correspondencefor mailing. Under that practice it would be deposited with theU.S. Postal Service on that same day with postage thereon fullyprepaid at Los Angeles, California, in the ordinary course ofbusiness. I am aware that on motion of party served, serviceshall be presumed invalid if postal cancellation date or postagemeter is more than one (1) day after date of deposit for mailing inaffidavit.

I declare under penalty of perjury under the laws of theState of California that the foregoing is true and correct.

Executed this 4th day of February, 2020.

79

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SERVICE LIST

Wendy Musell, Esq. Maraka L. Willits, Esq. STEWART & MUSELL, LLP 2200 Powell Street, Suite 440 Emeryville, California 94608 Tel.: (415) 374-0916 Fax: (415) 520-0920 Email: wmusell@stewartandmusell.com Email: mwillits@stewartandmusell.com

Counsel for Petitioner and Appellant By TrueFiling

CLERK Los Angeles County Superior Court 111 N. Hill Street Los Angeles, CA 90012 For: Hon. Mitchell Beckloff, Dept. 86

Superior Court Case No. BS167350 By U.S. Mail

CLERK California Supreme Court 350 McAllister Street San Francisco, CA 94102-4797

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