CHRISTOPHER TEACHER v. CALIFORNIA WESTERN SCHOOL OF LAW
D078550
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, STATE OF CALIFORNIA
Filed 4/5/22
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 37-2019-00012661-CU-MC-CTL)
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and Appellant.
Paul, Plevin, Sullivan & Connaughton, Hollis R. Peterson, Camille L. Gustafson and Jeffrey P. Michalowski for Defendant and Respondent.
I. INTRODUCTION
Plaintiff Christopher Teacher filed a complaint seeking a writ of administrative mandate (
The contours of the common law right to “fair process” Doe v. Regents of University of California (2021) 70 Cal.App.5th 494, 513 (UC Davis),4 in private university student disciplinary settings is both unsettled and evolving. (See, e.g., Doe v. Westmont College (2019) 34 Cal.App.5th 622, 634-635 (Westmont) [reviewing case law].)5 However, one component of the right to fair process is well established, commonsensical, and undisputed: “Where student discipline is at issue, [a] university must comply with its own policies and procedures.” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 239 (USC).)
CWSL violated this principle in expelling Teacher. CWSL‘s disciplinary procedures expressly provide, “The student or the student‘s spokesperson shall have the right to cross[-]examine witnesses.” Notwithstanding this provision, CWSL did not afford Teacher the opportunity to cross-examine any of the witnesses on whose statements CWSL relied in reaching its decision to expel Teacher. In light of the fact that CWSL entirely deprived Teacher of this important right guaranteed by its own procedures, we reverse the judgment, emphasizing that we do not reach any conclusion as to Teacher‘s commission of the misconduct that CWSL alleges.6 We remand for further proceedings.7
A. The underlying incidents8
1. The September 30, 2017 incident
On September 30, 2017, “a number of emails were sent from [J.E.‘s] CWSL student account with explicit sexual, racist or inappropriate content. The [person who sent the e-mails] also printed approximately 200 [plus] pages of study material and other various documents.”
2. The January 13, 2018 incident
The Summary describes another incident that occurred on January 13, 2018, in which inappropriate e-mails were sent from the e-mail account of A.F.9 According to the Summary, A.F. had been using a computer in the “350 building student lounge,” on CWSL‘s campus and thought she had logged off, but “computer records show that she did not log off.” The Summary states that various documents were printed from A.F.‘s account.
B. Proceedings at CWSL
1. CWSL‘s Code of Student Professional Conduct
CWSL has adopted a Code of Student Professional Conduct (CSPC). Article II of the CSPC is titled “Standards of Conduct,” and provides:
“CWSL students are truthful, responsible, and professional toward each other and all other members of the CWSL community. They do not take unfair advantage of each other, nor do they engage in dishonesty, fraud, deceit, theft, misrepresentation or harassment. They also must not violate CWSL‘s published policies. Students have an obligation to report known violations of this Code and assist in its enforcement.”
Article III of the CSPC is titled “Procedures for Enforcement,” (Procedures). Section 3 of the Procedures provides for a process of “Informal Administrative Disposition,” which may culminate in an administrative sanction of “suspension for no more than one term, with or without conditions.”
“The Vice Dean for Academic Affairs, Vice President of Student Life, or the Assistant Dean for Student and Diversity Services may, in his or her discretion, directly refer a case for formal hearing to the Professional Responsibility Committee (PRC). A formal PRC hearing shall also be held if requested by an accused student prior to administrative disposition or within 10 days thereafter. The PRC may dispense with a hearing and informally resolve any matter submitted for formal hearing.
“All hearings shall be at the time and place determined by the PRC. The PRC shall appoint the members of the Hearing Panel, which may include members of the PRC. The Hearing Panel shall review all matters de novo.
“The Vice Dean for Academic Affairs, Vice President of Student Life, the Assistant Dean for Student and Diversity Services, or his or her designee shall present relevant evidence to the Hearing Panel. The accused student has the right to be present, to receive a statement of the charges against him or her, to be personally heard, and to present appropriate evidence and arguments. The accused student may also elect to have a spokesperson present during the hearing. The student or the student‘s spokesperson shall have the right to cross[]examine witnesses. The Hearing Panel shall determine the admissibility of evidence without being bound to rules of evidence and/or procedure.”
Section 5 of the Procedures outlines how the Hearing Panel shall resolve matters referred to it and provides, “A majority of the Hearing Panel shall announce its decision and shall prepare a final written report.” In addition, if the Hearing Panel finds that the student has violated the “Standards of Conduct,” the Hearing Panel shall “state the applicable sanction,” including “suspension for more than one term or expulsion from the Law School.” Section 5 further provides that any sanctions shall be imposed as follows:
“The Vice Dean for Academic Affairs, Vice President of Student Life, and the Assistant Dean for Student and Diversity Services, in consultation with the Dean, shall impose all sanctions, as determined by the Hearing Panel. A Hearing Panel Report which imposes a sanction shall become part of the sanctioned student‘s record.”
2. CWSL‘s letter to Teacher setting a PRC hearing
The administrative record indicates that CWSL conducted an investigation into the incidents described in the Summary. On February 7, 2018, CWSL‘s Vice Dean of Academic Affairs, Donald Smythe, sent Teacher a letter accusing Teacher of committing the following violations of the CSPC:
“1. Obtaining unauthorized access to the accounts of two other [CWSL] students, on September 30th[,] 2017 and January 13th, 2018, and using those accounts to send inappropriate emails to a number of faculty and students as well as one alumnus. These were violations of the CSPC both because of the misrepresentation of the identity of the sender and also because the emails were offensive or abusive in nature. “2. On both occasions using those accounts to print a number of items that were then charged to those students. These were violations of the [CSPC] because they were tantamount to thefts from those other students.”
Dean Smythe informed Teacher that a formal PRC hearing would be held to consider the allegations, as follows:
“Under the Law School‘s Regulations, the Professional Responsibility Committee needs to hold a hearing to consider those charges (a copy of the CSPC is attached). The hearing is scheduled for Monday, February 12th, at 4PM in the Boardroom on the 2nd floor of the 225 Building. It will not be a trial and it will not be similar to a trial. I do not anticipate that there will be any witnesses or other persons who will be present to provide additional information. All of the other information to be considered is in the form of emails and computer logs. You have previously had an opportunity to see those documents and may review them before the scheduled meeting. They are being held at the front desk of the Vice Dean‘s office. Under the Regulations,10 you are entitled to bring a spokesperson to the hearing if you wish to do so.
“If you have any questions about the charges against you or the hearing, please address them to Dean Bashant.”
3. The hearing
On February 12, 2018, a Panel of the Professional Responsibility Committee (Panel) held a hearing to consider the matter.11 There is no verbatim transcript of the hearing. The administrative record contains notes (Notes) summarizing the hearing.12
The Notes state that at the outset of the hearing Dean Bashant indicated that that “Panel has reviewed the packet of info.” Neither the Notes nor any
The administrative record includes the following documents:
- Copies of e-mails allegedly sent during the incidents;
- Copies of e-mails pertaining to the scheduling of interviews between Teacher and CWSL administrators during the investigation;
- Dean Bashant‘s Summary;
- Copies of e-mails allegedly sent during the incidents with annotations apparently written by Dean Bashant;
- Copies of e-mails sent either to or from Dean Bashant pertaining to her investigation, including e-mails from Teacher;14
- A document with the handwritten words “rough timeline” pertaining to the September 30 incident apparently prepared by Dean Bashant;15
- A security official‘s January 14, 2018 incident report pertaining to A.F.‘s disclosure of the January 13, 2018 incident and a supervisor‘s review of the security official‘s incident report;
-
Tables documenting login information for certain CWSL computers on January 13, 2018;16
- A table listing documents printed from various CWSL printers on January 13, 2018;
- A statement from a security guard named Kourtney Brown regarding her observations of individuals on the CWSL campus on the evening of January 13 near the time of the incident;17
4. Teacher‘s posthearing submission
A few days after the hearing, Teacher requested that CWSL allow him to “provide a written response to the matters discussed and the email evidence presented at the [Panel‘s hearing].” The Panel granted Teacher‘s request.
Teacher subsequently sent the Panel an e-mail that stated in relevant part:
“On 1/13/2018 [i]t is highly likely I was in the 350 building to use the bathroom before going to building 290. I do not specifically recollect being in the building but I assume I was to use the bathroom then immediately leaving after doing so.”
Together with the e-mail, Teacher submitted a document to the Panel titled “Computer Incident Timeline,” that summarized computer login information, information concerning e-mails sent and documents printed from J.E.‘s and A.F.‘s accounts, and “[p]ossible [t]heor[ies],” as to the identity of the person or persons who sent the e-mails. For each theory, Teacher proposed a series of questions related to the theory. For example, with respect to the September 30, 2017 incident, Teacher stated:
“Possible Theory
“[J.E.] sent the emails himself and printed the documents himself.
“-Was [user ‘Dj’18] questioned about who was in the library at the time, and who was in the computer lab with them at the time?
“-What time did [J.E.] claim to leave the computer lab?”
The document that Teacher submitted contained numerous other questions related to this and other theories that Teacher propounded pertaining to the two incidents. Many of the questions are ones that Teacher could have posed during cross-examination of the witnesses on whose statements CWSL relied, if given the opportunity. Teacher also submitted photographs of text messages that he said he had received from one of the students who had allegedly received e-mails sent during the September 30 and January 13 incidents.19
5. The Panel‘s report
In late February 2018, the Panel issued its report. In the report, the Panel explained that Teacher had been accused of accessing the accounts of two CWSL students and sending e-mails and printing documents from those accounts without the other students’ permission. The Panel also outlined the process that it had followed to determine the truth of these allegations:
“On February 12, 2018, the [Panel] held a hearing at which Mr. Teacher was present. Dean Bashant provided the [Panel] and Mr. Teacher with documents20 detailing inappropriate and offensive emails sent on September 30, 2017, between 8:50pm and 9:30pm from the account of [J.E.] (a second-year student) and on January 13, 2018, between 9:00pm and 10:00pm from the account of [A.F.] (a third-year student). In addition[,] a number of documents were printed on both occasions from those students’ accounts. Upon learning of the receipt of one or more of the emails from the recipients, both students immediately reported the incidents to the Law School, stating that their accounts had been wrongfully accessed by an unauthorized person. In both cases, the students had been using [CWSL] [c]omputers for some time prior to the emails and printing, but stated that they had left those computers prior to the time the emails were sent. Attached to this memorandum are copies of those emails, with the names and email addresses of the recipients redacted. Mr. Teacher subsequently asked for permission to provide the [Panel] with an additional written statement and copies of text messages he had received from one of the students who had received emails sent during both incidents. The [Panel] granted Mr. Teacher‘s request and subsequently met again on February 22, 2018, to consider the additional material provided by Mr. Teacher.”
“Using the preponderance of the evidence standard, the [Panel] finds that sufficient evidence was presented to conclude that it is more likely than not that Mr. Teacher is responsible for accessing the accounts of Mr. [E.] and [Ms. F.] without authorization, and for using those accounts to send offensive and inappropriate emails and for printing a number of documents.”
Finally, the Panel stated that it recommended expulsion given the serious nature of Teacher‘s violations of the CSPC.
6. Teacher‘s expulsion
After the Panel issued its report, Dean Smythe sent Teacher a letter informing him that CWSL had expelled him from the law school. CWSL included a copy of the Panel‘s report with the letter.
C. Proceedings in the trial court
1. Teacher‘s complaint
Teacher filed a complaint challenging his expulsion from CWSL. Teacher‘s complaint contained four causes of action styled as: writ of administrative mandate (first cause of action); breach of contract (second cause of action); breach of the covenant of good faith and fair dealing (third cause of action); and declaratory relief (fourth cause of action). In his complaint, Teacher contended that CWSL “failed to follow its own internal procedures relating to the disciplinary procedure and breached its agreement with [Teacher].”
In his cause of action seeking a writ of administrative mandate, Teacher alleged that CWSL had denied him a fair process in expelling him, for numerous reasons, including failing to “provide [him with] the opportunity to confront or cross-examine any witnesses against him at the hearing or at any other time.”
Teacher also claimed that CWSL‘s wrongful expulsion supported his causes of action for breach of contract and breach of the covenant of good faith and fair dealing. In his declaratory relief cause of action, Teacher requested a judicial determination that CWSL had failed to provide him with a fair hearing.
2. CWSL‘s answer
CWSL filed an answer to the cause of action for writ of administrative mandate in which it denied having failed to provide Teacher with a fair
3. The trial court‘s stay of the causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and declaratory relief pending a determination of Teacher‘s request for writ relief
On the same day that CWSL filed its answer to the cause of action for writ of administrative mandate, the trial court entered a stay of the causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and declaratory relief, pursuant to a stipulation of the parties. The order provided in relevant part, “After the Court rules on the writ, if the case has not been dismissed, [CWSL] will have 30 days to answer the verified [c]omplaint as to the second through fourth causes of action.”
4. Teacher‘s opening brief in support of his request for a writ of administrative mandate
Teacher filed an opening brief in the trial court in which he argued that the proceedings by which CWSL expelled him were unfair on numerous grounds, including that CWSL had failed to permit him to cross-examine witnesses as guaranteed by the Procedures.21
5. CWSL‘s opposition
CWSL filed an opposition in which it argued that it had provided Teacher with a fair hearing and that it had complied with the Procedures. With respect to Teacher‘s contention that CWSL had failed to afford him the opportunity to cross-examine witnesses, CWSL argued that Dean Smythe had informed Teacher prior to the disciplinary hearing that the hearing would “‘not be a trial and it will not be similar to a trial.‘” CWSL also noted that Dean Smythe informed Teacher that he did not anticipate that any witnesses would be present at the hearing. CWSL then argued:
“Mr. Teacher did not . . . raise the issue of witness cross-examination at the hearing. [Citation.] Even after the hearing, CWSL provided Mr. Teacher the opportunity to provide additional documents and arguments. Mr. Teacher did so, and the [Panel] considered the additional documents and arguments he submitted. [Citations.] The [Panel] made its determinations based on Mr. Teacher‘s testimony and the documentary evidence. As such, there were no witnesses to cross-examine.”
CWSL also argued that Teacher‘s request for a writ should be denied pursuant to the doctrine of unclean hands based on Teacher‘s providing false
In support of its unclean hands defense, CWSL submitted evidence, including a request that the trial court take judicial notice of a legal opinion pertaining to Teacher,23 and a declaration and accompanying exhibits containing Teacher‘s 2008 and 2013 applications to CWSL.
6. Teacher‘s reply
Teacher filed a reply brief in which he reiterated the arguments raised in his opening brief, including his contention that CWSL had violated his right to a fair process by denying him the right to cross-examine witnesses. With respect to CWSL‘s argument that there were “no witnesses . . . available for Teacher to cross-examine at the hearing,” Teacher responded, “CWSL misses the whole point of cross-examining witnesses at a hearing, which is to avoid subjecting students to severe disciplinary consequence based solely on circumstantial ‘evidence’ and inference.”
Teacher also claimed that the trial court could not “deny the writ for unclean hands,” (boldface and capitalization omitted) arguing in part, “Teacher denies and contests the allegations and demands a fair hearing on the issue . . . .”
Together with his reply, Teacher filed an objection to CWSL‘s opposition brief, alleging that the brief exceeded the permissible length. Teacher also filed an objection to CWSL‘s request for judicial notice and evidentiary objections to the declaration and accompanying exhibits that CWSL lodged in support of its unclean hands defense.
After holding a hearing and issuing a tentative ruling, the trial court entered a final order denying Teacher‘s request for writ relief.24 With respect to Teacher‘s objection to being denied the opportunity to cross-examine witnesses, the trial court ruled as follows:
“According to the CSPC, at the hearing, the accused student has the right to be present, to receive a statement of the charges against him and to be personally heard and to present appropriate evidence and arguments. The student shall have the right to cross-examine witnesses. With the exception of the right to cross-examine, [CWSL] has complied with its policy and procedure. However, it appears that in this case there were no witnesses as the charges were founded upon computer records, e-mails, [Teacher‘s] classes and circle of professors and acquaintances. While the security guard could have testified and [Teacher] theoretically could have cross-examined her regarding her verification that [Teacher] was present at the time of one of the unauthorized uses occurred [sic], the determination against him was made upon the computer records placing him in the area.”
8. The judgment
The trial court entered a judgment in CWSL‘s favor on all of the causes of action in Teacher‘s complaint in December 2020.
9. The appeal
Teacher filed a timely appeal from the judgment in January 2021.
III. DISCUSSION
A. CWSL violated Teacher‘s right to fair process by denying him the right to cross-examine witnesses as guaranteed by the Procedures
Teacher claims that CWSL failed to provide him with a fair process in expelling him from the law school. Among other arguments in support of this contention,25 Teacher claims that he “was denied the right to cross-examine
1. Governing law and standard of review
a. Section 1094.5‘s fair hearing requirement and the applicable standard of review
“’ “We review the fairness of the administrative proceeding de novo[,] “. . . because the ultimate determination of procedural fairness amounts to a question of law.” [Citation.]‘” (Allee, supra, 30 Cal.App.5th at p. 1059.)
b. The fair hearing requirement in student disciplinary cases
“‘California courts have long recognized a common law right to fair procedure protecting individuals from arbitrary exclusion or expulsion from private organizations which control important economic interests.’ [Citation.] Such a private organization‘s actions must be both substantively rational and procedurally fair. [Citation.]” (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1445; see also Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1722 [“It is now authoritatively established that
More specifically, “the provisions of
“‘Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’ ” (Allee, supra, 30 Cal.App.5th at p. 1062.) Indeed, “[u]ntil recently, few cases had attempted to define ‘fair hearing standards for student discipline at private universities.’ ” (Id. at p. 1061.) However, as outlined in part I, ante, one of the principles that is well established, and that CWSL does not dispute, is that a “university must comply with its own policies and procedures.” (USC, supra, 246 Cal.App.4th at p. 239, citing, Berman v. Regents of University of California (2014) 229 Cal.App.4th 1265, 1271 (Berman).)27
2. CWSL‘s forfeiture argument
Before addressing the merits of Teacher‘s claim, we consider CWSL‘s contention that Teacher‘s “failure to object to [the] lack of cross-examination at [the] administrative hearing forfeited this claim on appeal.” (Citing JMS Air Conditioning & Appliance Service, Inc. v. Santa Monica Community College Dist. (2018) 30 Cal.App.5th 945, 962 & fn. 6 (JMS Air Conditioning).)
As noted in part II.B.2, ante, prior to the disciplinary hearing, CWSL‘S Dean Smythe sent Teacher a letter on February 7, 2018 informing Teacher that a disciplinary hearing had been scheduled. Dean Smythe characterized the hearing as follows:
“It will not be a trial and it will not be similar to a trial. I do not anticipate that there will be any witnesses or other persons who
will be present to provide additional information. All of the other information28 to be considered is in the form of emails and computer logs.”
Thus, as CWSL notes in its brief, “Dean Smythe‘s February 7, 2018 letter informed Mr. Teacher that the hearing would consist of going over the emails and computer logs ....”
The Notes state that, at the outset of the hearing, Dean Bashant outlined the nature of the proceeding:
“Dean Bashant (Bashant): Opened the meeting with introductions and stated purpose - provide you opportunity to be heard on evidence we will consider. Not courtroom - no courtroom procedures apply. Questions can be answered by committee or by you.”
CWSL also asserted in both the trial court and in this court that Teacher‘s right to cross-examine witnesses was not abridged because “there were no witnesses to cross-examine.”
Given CWSL‘s unwavering interpretation of the Procedures as affording Teacher the right to cross-examine witnesses only to the extent that CWSL chose to present witnesses at the disciplinary hearing, and its clear intent not to present any witnesses, any request by Teacher to assert his right to cross-examine would have been futile. Accordingly, we conclude that Teacher has not forfeited his contention that CWSL violated his right to cross-examination by failing to assert his right to cross-examine witnesses at the Panel hearing. (See, e.g., People v. Zaheer (2020) 54 Cal.App.5th 326, 337 [forfeiture is excused when an objection would have been futile].)
Even assuming that Teacher had forfeited his right to cross-examine witnesses, “we exercise our discretion to address [Teacher‘s] argument.” (JMS Air Conditioning, supra, 30 Cal.App.5th at p. 962.) The record recited above indicates that CWSL affirmatively discouraged Teacher, who represented himself throughout the proceedings at CWSL, from seeking to cross-examine witnesses at the Panel hearing by informing him prior to the hearing that the hearing would “not be a trial and it will not be similar to a trial,” and that CWSL did not “anticipate that there will be any witnesses or other persons who will be present to provide additional information.” In addition, at the outset of the hearing, Dean Bashant indicated that “no courtroom procedures apply,” and that “[q]uestions can be answered by committee or by
3. CWSL violated Teacher‘s right to cross-examine witnesses
a. Principles of interpretation
Generally, we defer to an agency‘s interpretation of its own procedures. (Berman, supra, 229 Cal.App.4th at p. 1272, citing Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12 (Yamaha).) One “reason we give weight to the agency interpretation of its own policies and procedures is because the agency has developed a level of ‘expertise’ in light of its familiarity with the legal and regulatory issues.” (Berman, supra, at p. 1272.)
However, in this case, CWSL does not contend that it has expertise with respect to any legal or regulatory issues that might inform our interpretation of the cross-examination provision in the Procedures. Nor does CWSL suggest that it has previously interpreted the Procedures in any particular manner. Indeed, CWSL does not contend that we should defer to its interpretation of the Procedures, nor does CWSL present any developed legal argument as to the scope and meaning of the right to cross-examine witnesses contained in the Procedures to which we could defer, were we to determine that such deference was appropriate.30 Under these circumstances, whatever interpretation CWSL might be said to have of the Procedures does not “merit[] any measure of presumptive deference.” (McHugh v. Protective Life Ins. Co. (2021) 12 Cal.5th 213, 245 [declining to apply Yamaha deference where record did not contain evidence of “official guidance on the agency‘s construction,” of two statutes and party provided no “good reason why [reviewing court] should defer“].)
“Generally, the rules that govern interpretation of statutes also govern interpretation of . . . policies promulgated by administrative bodies ....” (Akella v. Regents of University of California (2021) 61 Cal.App.5th 801, 817, citing Berman, supra, 229 Cal.App.4th at p. 1271.)
b. The Procedures
As outlined in part II.B.1, ante, Article III of the CSPC contains the Procedures. Section 4 of the Procedures provides for a “formal PRC hearing” to be held by a panel of the Professional Review Committee prior to CWSL‘s imposition of severe sanctions based on a student‘s misconduct. The Procedures describe the hearing in relevant part as follows:
“The Vice Dean for Academic Affairs, Vice President of Student Life, the Assistant Dean for Student and Diversity Services, or his or her designee shall present relevant evidence to the Hearing Panel. The accused student has the right to be present, to receive a statement of the charges against him or her, to be personally heard, and to present appropriate evidence and arguments. The accused student may also elect to have a spokesperson present during the hearing. The student or the student‘s spokesperson shall have the right to cross-examine witnesses. The Hearing Panel shall determine the admissibility of evidence without being bound to rules of evidence and/or procedure.” (Italics added.)
c. The Procedures generally grant an accused student the right to cross-examine any person on whose statement the Panel relies in reaching its determination
While CWSL appears to contend that the Procedures provide merely for the right to cross-examine witnesses whom CWSL calls to provide live testimony at a Panel hearing, the Procedures contain no language limiting the witnesses whom the student “shall have the right” to cross-examine. To the extent that CWSL intends to argue that the word “witnesses” in the Procedures refers solely to those individuals whom CWSL elects call to provide live testimony at a Panel hearing, it fails to present any argument as to why the word should be interpreted so narrowly.
Common definitions of the word “witness” reveal that it is not used solely to refer to individuals who provide live testimony at a hearing, but rather, includes those who have firsthand knowledge of material facts and
“witness n. (bef. 12c) 1. Someone who sees, knows, or vouches for something <a witness to a testator‘s signature>. 2. Someone who gives testimony under oath or affirmation (1) in person, (2) by oral or written deposition, or (3) by affidavit <the witness to the signature signed the affidavit.>. • A witness must be legally competent to testify. - witness, vb.
“‘The term “witness,” in its strict legal sense, means one who gives evidence in a cause before a court; and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceeding, and so includes deponents and affiants as well as persons delivering oral testimony before a court or jury.“’ 97 C.J.S. Witnesses § 1, at 350 (1957).”
Similarly, Merriam-Webster‘s online dictionary defines “witness” in relevant part as “one that gives evidence specifically: one who testifies in a cause or before a judicial tribunal,” (Merriam-Webster Dict. Online (2022) <https://merriam-webster.com/dictionary/witness> [as of April 5, 2022], archived at <https://perma.cc/YLK4-7AKC> [definition “2“]), and “one who has personal knowledge of something.” (Ibid. [definition “4“].)
The meaning of “witnesses” as the word is used in the Sixth Amendment also is not limited to those persons who provide live testimony.33 “‘[T]he word “witnesses” in the Sixth Amendment’ is defined as ‘“those who bear testimony.“‘” [Citation.] ‘Testimony,’ in turn, is a ‘“solemn declaration or affirmation made for the purpose of establishing or proving some fact.“’ [Citations.]” (People v. Blacksher (2011) 52 Cal.4th 769, 811.) Thus, it is clear that, for purposes of the Sixth Amendment, the term “witnesses” is not restricted to those persons whom authorities elect to call to provide live testimony at a criminal trial. (See, e.g., Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 311 [forensic analysts who provided written affidavits reporting the results of their analyses that were admitted in evidence “were ‘witnesses’ for purposes of the Sixth Amendment“].)34
“First, the Panel did not hear testimony from three critical witnesses - K.S., M.H., and M.W. - yet it relied on portions of their statements to corroborate Jane‘s account or to impeach the credibility of John and his supporting witnesses.” (Westmont, supra, 34 Cal.App.5th at p. 636.)
Further, to interpret the word “witnesses” in the Procedures to refer solely to those persons who provide live testimony at a CWSL disciplinary hearing would permit CWSL to undermine the very right to cross-examination that it adopted in the Procedures. CWSL points to nothing to support an interpretation of the Procedures that would permit CWSL to condition an accused student‘s right to cross-examine witnesses on whether CWSL chooses to call such persons to provide live testimony at a PRC hearing. Such an interpretation would allow the school to circumvent the accused student‘s right to cross-examination by not presenting witnesses and instead, as it did in this case, expel a student based on the statements of witnesses whom the accused student was not given an opportunity to cross-examine.35
In interpreting the Procedures’ cross-examination provision, we have considered that the Procedures authorize the Panel to “determine the admissibility of evidence without being bound to rules of evidence and/or procedure.” However, that provision cannot reasonably be construed to permit the Panel, in adjudicating whether a student is responsible for alleged misconduct, to rely on witness statements that the accused student has had no opportunity to cross-examine. Rather, we must interpret the provision in light of, and in harmony with, the Procedures’ guarantee of a student‘s right to cross-examine witnesses. (See Akella, supra, 61 Cal.App.5th at p. 818 [in interpreting a provision of law a court is to interpret law “as a whole“]; accord Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1107
In light of the foregoing, and without purporting to interpret the Procedures with respect to every possible scenario concerning the right to cross-examination that might arise, we conclude that the Procedures generally grant an accused student the right to cross-examine any person who makes a statement to those investigating the alleged misconduct on which the Panel relies in reaching its determination. We say “generally,” because we recognize that the Panel may adopt reasonable restrictions with respect to the rule of cross-examination in applying the provision in a particular case (e.g., exceptions based on materiality or unavailability). Further, because we recognize that the Procedures do not authorize a criminal trial (Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1232), to the extent an out-of-court statement would be admissible at a criminal trial, the Panel would almost certainly be allowed to rely on such a statement in an administrative hearing under the Procedures. However, what CWSL may not do is purport to provide an accused student with a right to cross-examination, only to eviscerate that right by holding a hearing without calling any witnesses to provide live testimony and adjudging the accused student guilty of misconduct based in part on summaries of witness statements made to those investigating the misconduct.36
d. CWSL violated Teacher‘s right to cross-examination as guaranteed by the Procedures
CWSL contends that it did not violate Teacher‘s right to cross-examine witnesses as guaranteed by the Procedures. It argues, “In this case, there were no witnesses at the hearing to cross-examine.” (Italics added.) CWSL also argues, “The [Panel] made its determinations based on Mr. Teacher‘s testimony and the documentary evidence. As such, there were no witnesses to cross-examine.” (Italics added.)
For the reasons discussed in part III.A.3.c, ante, a student‘s right to cross-examine witnesses under the Procedures extends to all witnesses on whose statements CWSL relies in adjudicating whether the student is responsible for the misconduct alleged. Thus, the fact that CWSL did not call any
With respect to CWSL‘s contention that the Panel based its decision solely on Teacher‘s testimony and ”documentary evidence,” (italics added) it is clear from the record that many of the documents on which the Panel relied are summaries of witness statements made to those charged with investigating the alleged misconduct.
To begin with, the Panel expressly relied on witness’ statements made to CWSL‘s administrators during the investigation.37 Further, the administrative record includes numerous documents that contain witness statements - or summaries thereof - related to the alleged misconduct, which the Panel appears to have considered.38 For example, the Summary appears to be based, in part, on statements from J.E. and A.F.39 The administrative record also indicates that Dean Bashant interviewed the student that Teacher suggested at the Panel hearing may have been responsible for the incidents.40 In addition, the administrative record includes A.F.‘s report of the January 13, 2018 incident to security personnel.
The Summary also contains an arguably materially inaccurate description of one important witness‘s statement. The Summary states:
“Kortney [Brown], the security guard on duty, identified three students who were in the building at the end of the day[41]: an Asian man, a woman, and Mr. Teacher, whom she said that recognizes him [sic]: He is often in the building from 9:30-9:50. She recognizes him because he has a distinctive gait.” (Italics added.)
“Captain Miller[42] then asked if I had seen a different CWSL student (Caucasian male) enter the building that night and showed me a picture of an individual. The individual is very familiar to me as I see him almost every night, usually between 2130 (9:30 PM) - 2155 (9:55 PM). His walk is very distinctive. He walks in, heads downstairs, and he‘s always out of the building before closing. Often he‘ll leave in just a couple minutes with a bag of popcorn he‘s cooked. I can‘t say for certain if I did see him Saturday night or what time, but I do see him here every weekend when the building is mostly empty and has low foot traffic.” (Italics added.)
In sum, the administrative record unequivocally establishes both that the Panel relied on various witness statements in determining whether Teacher was responsible for the misconduct alleged and that Teacher was not afforded the opportunity to cross-examine these witnesses.
Accordingly, we conclude that CWSL violated Teacher‘s right to cross-examine witnesses, as established in the Procedures.
4. CWSL denied Teacher a fair process in expelling him; CWSL shall ensure that Teacher is afforded a fair process in any future disciplinary hearing
As described in part III.A.3.d, ante, the administrative record establishes that the Panel relied on various witness statements in adjudicating Teacher‘s responsibility for the alleged misconduct. CWSL‘s act in totally depriving Teacher of the right to cross-examine any of these witnesses plainly violated his right to fair process. (See, e.g., Ogden Entertainment Services v. Workers’ Comp. Appeals Bd. (2014) 233 Cal.App.4th 970, 984 [“When, as in this case, a party is completely denied the fundamental right to cross-examine the adverse party, there has not been a fair hearing“].)
We are mindful that the “common law requirements for a fair hearing at a private college . . . are ‘“flexible” and entail no “rigid procedure.“‘” (Westmont, supra, 34 Cal.App.5th at p. 634.) Thus, CWSL maintains wide discretion in how it conducts disciplinary hearings, including any future hearing in this case. However, the disciplinary hearing that CWSL
We have also considered Teacher‘s additional contentions as to CWSL‘S denial of his right to fair process and conclude that they are largely without merit. Specifically, Teacher contends that, “CWSL failed to gather and turn over potentially exculpatory evidence,” listing a number of investigatory steps that CWSL could have undertaken in determining whether he was responsible for the misconduct alleged. (Capitalization, boldface and italics omitted.) While we agree with Teacher that the investigation was far from comprehensive, he fails to demonstrate that any of the shortcomings that he alleges violated the Procedures or his right to fair process. We also reject Teacher‘s contention that the Panel “decided that Mr. Teacher was guilty before the hearing even began, shifting the burden to Mr. Teacher to prove his innocence.” While Teacher supports this claim by contending that he was “bombarded by questions and accusations,” from Panel members at the hearing, he identifies nothing in the Procedures nor principles of fair process that would preclude such questioning.
Teacher also argues, “CWSL did not afford [him] access to all available evidence prior to the hearing” and “the hearing panel improperly relied on information not presented to Mr. Teacher.” (Some capitalization omitted.) The law is clear that a university may not base a decision to expel a student on evidence that the university has not disclosed to the student. (USC, supra, 246 Cal.App.4th at p. 247 [“common law requirements for a fair hearing under . . .
However, we are able to determine the following: (1) Dean Smythe sent Teacher a letter dated February 7, 2018 stating that a disciplinary hearing
Given our reversal of the judgment on the ground that CWSL denied Teacher the right to fair process by violating his right to cross-examination, we need not determine whether Teacher would be entitled to reversal based on CWSL‘s failure to disclose evidence in the administrative proceedings. However, on remand, to the extent that CWSL holds a new hearing with respect to the misconduct alleged in this case (see pt. III.B, post), it shall also ensure that Teacher is timely provided with all of the evidence on which the Panel intends to rely in adjudicating Teacher‘s case.
In summary, we direct the trial court to ensure that any new hearing that CWSL holds in this matter does not violate Teacher‘s right to fair process as outlined in this section.
1. The trial court shall consider CWSL‘s affirmative defense of unclean hands
a. Procedural history
As noted in part II.C.5, ante, in the trial court, CWSL argued that the court should deny Teacher‘s request for writ relief pursuant to the doctrine of unclean hands. In support of this contention, CWSL claimed that Teacher‘s 2013 application to CWSL contained materially false information. CWSL argued, “Where the ultimate issue before the trial court is whether [Teacher] should be permitted to continue his legal education, the [trial court] can and should exercise its discretion to prevent dishonest individuals from entering the legal profession.” CWSL cited case law and offered evidence in support of its contention.
In his reply brief in the trial court, Teacher stated that he “denies and contests the allegations and demands a fair hearing on the issue.”
The trial court did not address CWSL‘s unclean hands defense in its order denying Teacher‘s request for writ relief.
The parties have not addressed CWSL‘s affirmative defense in their briefs on appeal.
b. Relevant law
In Aguayo v. Amaro (2013) 213 Cal.App.4th 1102 (Aguayo), the court outlined the defense of unclean hands:
“The doctrine of unclean hands . . . rests on the maxim that ‘“he who comes into equity must come with clean hands.“’ [Citation.] ‘The doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim.’ [Citation.] Whether the doctrine of unclean hands applies is a question of fact.” (Id. at pp. 1109-1110.)
A reviewing court “review[s] the trial court‘s decision to apply . . . [an] unclean hands defense for abuse of discretion,” and “review[s] the trial court‘s factual findings under the substantial evidence test.” (Aguayo, supra, 213 Cal.App.4th at p. 1109.)
Because the trial court did not consider CWSL‘s unclean hands defense, there is no ruling on the defense for this court to review.46 On remand, the trial court shall consider CWSL‘s affirmative defense of unclean hands.47
2. Additional further proceedings
If, after considering CWSL‘s affirmative defense of unclean hands as outlined in part III.B.1, ante, the trial court denies Teacher‘s request for a writ of administrative mandate on the basis of this defense, the trial court shall issue a new judgment in favor of CWSL on all of the causes of action in the complaint, including the causes of action for breach of contract (second cause of action), breach of the covenant of good faith and fair dealing (third cause of action), and declaratory relief (fourth cause of action). If, after considering CWSL‘s affirmative defense of unclean hands as outlined in part III.B.1, ante, the trial court concludes that writ relief shall not be denied on basis of this defense, the trial court shall grant the writ of administrative mandate and determine the appropriate relief to award Teacher. Such relief shall include setting aside any sanctions that CWSL imposed as a result of the Panel‘s February 22, 2018 hearing and permitting CWSL to conduct a new hearing that does not violate Teacher‘s right to fair process as outlined in part III.A, ante. In addition, if the trial court grants Teacher‘s request for a writ of administrative mandate, the trial court shall also conduct further proceedings with respect to the remaining causes of action.48
IV. DISPOSITION
The judgment and the order denying Teacher‘s request for a writ of administrative mandate are reversed. The matter is remanded to the trial court
Teacher is entitled to recover his costs on appeal.
AARON, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
Notes
“[J.E.] is here in my office. He has provided the following information:
“Saturday evening, September 30, between 7:00-7:30 p.m. he was in the Student Computer Lab reviewing his CWSL emails and printing outlines. The computer screen went blank and [J.E.] thought he was signed out of his email account. He left around 7:30 p.m.”
“In his 2013 application, Mr. Teacher responded to the question of whether he had previously applied to California Western School of Law with a ‘no.’ However, Mr. Teacher in fact had previously applied to [CWSL] in 2008 and was denied admission.”
“Upon learning of the receipt of one or more of the emails from the recipients, both students immediately reported the incidents to the Law School, stating that their accounts had been wrongfully accessed by an unauthorized person. In both cases, the students had been using [CWSL] [c]omputers for some time prior to the emails and printing, but stated that they had left those computers prior to the time the emails were sent.” (Italics added.)
“Professor Bohrer (Bohrer): Emails sent to professors did not do well with.”
“Professor Campbell (Campbell): You were working on [Professor] Dizon[‘s] assignment?”
“Professor Austin (Austin): . . . My understanding is that you don‘t know [J.E.] You didn‘t respond to [J.E.] or inquire about it. Didn‘t respond to it at all.”
There is nothing in the “emails and computer logs,” that would have supported the Panel members asking any of these questions. Thus, it is clear that the Panel members considered evidence beyond “e-mails and computer logs” prior to the hearing.
“On or about February 8, 2018, [Teacher] spoke with Dean Smythe‘s senior administrative assistant Donna Kelley regarding the hearing. Kelley told [Teacher] he could come to the Dean‘s office to review the evidence gathered by CWSL. The next day, on February 9, 2018, [Teacher] went to the Dean‘s office and spent approximately one hour reviewing the 31 pages of evidence. [Teacher] was not allowed to remove the evidence from the Dean‘s office or take copies of it for further review.”
It is unclear from the administrative record the nature of the “31 pages of evidence,” that Teacher was permitted to review.