Sharif v. The Regents of the University of Cal. CA2/2 ( 2021 )

Filed 12/6/21 Sharif v. The Regents of the University of Cal. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RANA SHARIF, B308941
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV32356)
v.
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Barbara Ann Meiers, Judge. Affirmed in part
and reversed in part with directions.
The Cook Law Firm, Philip E. Cook, Brian J. Wright;
Public Counsel, Jill Thompson and Mallory Sepler-King for
Plaintiff and Appellant.
McCune & Harber, Stephen M. Harber and Amy Arseneaux
Evenstad for Defendant and Respondent.
Plaintiff Rana Sharif was a doctoral candidate at
University of California, Los Angeles (UCLA). After she was
disqualified from her doctoral program for failing to make
progress toward her Ph.D. and for an unsatisfactory dissertation,
she sued defendant Regents of the University of California (the
Regents) for discrimination, breach of an implied-in-fact contract,
promissory estoppel, and violation of her due process rights. The
Regents demurred to Sharif’s complaint on the grounds that she
had failed to exhaust her administrative and judicial remedies
and otherwise failed to state any cause of action. The trial court
sustained the demurrer without leave to amend, and this appeal
followed. Although we agree that the trial court properly
sustained the demurrer as to Sharif’s discrimination and
contract-based causes of action, Sharif may proceed on her due
process and declaratory relief causes of action.
BACKGROUND
I. Sharif is disqualified as a Ph.D. candidate.
According to the allegations of the operative pleading,
Sharif is a woman of color, a mother of young children, the
caretaker of a disabled parent, and a primary source of income
for her family. In 2006, Sharif began pursuing her Ph.D. in
gender studies at UCLA, advancing to a doctoral candidacy in
2012. She gave birth in 2009 and again in 2014, and her oldest
child has a congenital condition that required three surgeries and
ongoing care.
UCLA requires its departments to set a normative time to
degree, meaning the number of quarters in which students
should complete the requirements for a doctorate. The
Department of Gender Studies anticipates it will take six years to
2
achieve a Ph.D., although leaves of absence are permitted.
Despite this normative-time-to-degree policy, Sharif alleged that
the department has never enforced it against anyone except her,
although former and current graduate students have taken more
than six years to complete their degrees.
In September 2016, Sharif’s supervisory doctoral committee
set September 15, 2017 as the deadline for Sharif to complete her
dissertation. Sharif alleged that the committee did not tell her
that failure to meet the deadline would result in her
disqualification as a doctoral candidate or other consequence. In
August 2017, Sharif submitted a “completed draft” of her
dissertation.
On September 11, 2017, the department recommended
terminating Sharif’s status as a doctoral student for two reasons.
First, she had exceeded by five years the normative six years to
complete a Ph.D. Second, Sharif’s dissertation was “not [of] a
sufficient academic quality to pass.” A week later, the graduate
division informed Sharif that it agreed with the department’s
recommendation. At that time, Sharif was given a document,
“Excerpt from Standards and Procedures for Graduate Study at
UCLA.”1 It stated that disqualification of graduate students was
1 The parties have filed separate motions asking us to take
judicial notice of UCLA’s Standards and Procedures for Graduate
Study and UCLA Procedures 230.1 and 230.2. The Regents also
ask us to take judicial notice of UCLA’s Graduate Student
Academic Rights and Responsibilities handbook. We grant the
February 11, 2021 and May 14, 2021 requests for judicial notice.
(See generally Evid. Code, § 451, subd. (a); Campbell v. Regents of
University of California (2005) 35 Cal.4th 311, 320 [Regents
internal policies enjoy status equivalent to state statutes];
3
at the discretion of the dean of the concerned graduate division,
meaning that the dean had “final authority over this decision”
and an “appeal can go no higher.”
Sharif appealed her disqualification to the Interim Chair of
the Department of Gender Studies, arguing that the decision
should be reversed for (1) procedural error and (2) substantial
mitigating circumstances.
First, as to procedural error, Sharif argued: she lacked
notice of the possibility of her disqualification; she had no
opportunity to be heard before the recommendation to disqualify
her was made; and the department’s procedural process was
unclear at best.
Second, as to mitigating circumstances, she identified
personal circumstances that contributed to her prolonged time to
degree: her marital status, in that her 2006 marriage to a
Jordanian citizen involved a longer than anticipated immigration
process; her husband’s underemployment required Sharif to take
additional teaching jobs; her two pregnancies, during which
UCLA did not tell her about benefits to which she was entitled;
caring for her children, one of whom was disabled; caring for her
mother who was on disability; having to adjust her project
apparently because conflict in the Israeli/Palestinian region
affected her ability to do fieldwork for her dissertation; and her
personal disability for which she was treated in fall and summer
2017.
On November 3, 2017, the Interim Chair of the department
informed Sharif that the doctoral committee had discussed her
Bockover v. Perko (1994) 28 Cal.App.4th 479, 486, fn. 5 [granting
judicial notice of UCLA grievance procedure manual].)
4
appeal and found no cause to reverse the decision to disqualify
her. The Interim Chair further informed Sharif that the
recommendation would be forwarded to the graduate division for
a final decision. A week later, the graduate division found no
reason to reverse the recommendation, and therefore the
disqualification decision was final, with no additional avenue for
an appeal.
II. Sharif sues the Regents.
Sharif then sued the Regents. Her operative first amended
complaint alleged causes of action for: (1) discrimination in
violation of Education Code sections 220 and 66270;2
2 Education Code section 220 provides, “No person shall be
subjected to discrimination on the basis of disability, gender,
gender identity, gender expression, nationality, race or ethnicity,
religion, sexual orientation, or any other characteristic that is
contained in the definition of hate crimes set forth in Section
422.55 of the Penal Code, including immigration status, in any
program or activity conducted by an educational institution that
receives, or benefits from, state financial assistance, or enrolls
pupils who receive state student financial aid.”
Education Code section 66270 provides, “No person shall be
subjected to discrimination on the basis of disability, gender,
gender identity, gender expression, nationality, race or ethnicity,
religion, sexual orientation, or any characteristic listed or defined
in Section 11135 of the Government Code or any other
characteristic that is contained in the prohibition of hate crimes
set forth in subdivision (a) of Section 422.6 of the Penal Code,
including immigration status, in any program or activity
conducted by any postsecondary educational institution that
receives, or benefits from, state financial assistance or enrolls
students who receive state student financial aid.”
5
(2) discrimination in violation of Government Code section
11135;3 (3) discrimination in violation of the Unruh Civil Rights
Act, Civil Code section 51 et seq.;4 (4) breach of an implied-in-fact
contract; (5) promissory estoppel; (6) violation of due process; and
(7) declaratory relief.
As to her discrimination causes of action, Sharif alleged the
Regents discriminated against her on the basis of sex, sexual
stereotypes, marital status, pregnancy and associated disability.
As to her implied-in-fact contract cause of action, Sharif
alleged that such a contract was created by, for example, her
matriculation, payment of tuition and fees, completion of her
3 Government Code section 11135, subdivision (a), provides,
“No person in the State of California shall, on the basis of sex,
race, color, religion, ancestry, national origin, ethnic group
identification, age, mental disability, physical disability, medical
condition, genetic information, marital status, or sexual
orientation, be unlawfully denied full and equal access to the
benefits of, or be unlawfully subjected to discrimination under,
any program or activity that is conducted, operated, or
administered by the state or by any state agency, is funded
directly by the state, or receives any financial assistance from the
state.”
4 The Unruh Civil Rights Act provides, “All persons within
the jurisdiction of this state are free and equal, and no matter
what their sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital status,
sexual orientation, citizenship, primary language, or immigration
status are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” (Civ. Code, § 51,
subd. (b).)
6
coursework, teaching, publishing, and progression to complete
her dissertation.
In her promissory estoppel cause of action, Sharif alleged
that by offering a Ph.D. program at UCLA, the Regents promised
to, with adequate notice of all requirements and for no unlawful
purpose, fairly permit her to complete her program. Sharif
further alleged that two weeks before she submitted her draft
dissertation, Dr. Sondra Hale told Sharif that she was eligible for
the fall filing fee, “which ‘is intended for students who are in good
academic standing and who have completed all degree
requirements except for filing their dissertation.’ ”
Her due process violation cause of action alleged she
acquired a property or liberty interest in the opportunity to
complete her Ph.D. program.
Sharif also alleged that she exhausted all administrative
remedies by following UCLA’s Standards and Procedures for
Graduate Study at UCLA (Standards and Procedures).
III. The Regents demur.
The Regents demurred to the first amended complaint.
The Regents asserted that Sharif failed to exhaust her
administrative remedies pursuant to UCLA Procedure 230.2;
Sharif failed to exhaust her judicial remedies, because
administrative mandamus under Code of Civil Procedure5 section
1094.5 was the exclusive remedy for relief; immunity;
uncertainty; and failure to state facts sufficient to constitute any
5
All further undesignated statutory references are to the
Code of Civil Procedure.
7
causes of action.6 In support of the demurrer, the Regents asked
the trial court to take judicial notice of UCLA Procedure 230.2,
regarding the grievance process.
Sharif opposed the demurrer and the request for judicial
notice. She argued that she exhausted her administrative
remedies by following the grievance procedure in the Standards
and Procedures, and she did not have to follow UCLA Procedure
230.2. Alternatively, Sharif urged that the Regents be estopped
from asserting that Sharif had to comply with UCLA Procedure
230.2, and she was not required to seek judicial review by
administrative mandate because no hearing had taken place in
connection with the grievance procedure.
The trial court sustained the demurrer without leave to
amend, finding that Sharif had not pleaded sufficient facts
showing she alleged discrimination or disability during her
appeals process, and her recourse was to seek a writ of mandate
as to all causes of action.
The trial court entered a judgment of dismissal, and this
appeal followed.
DISCUSSION
I. Demurrer standard of review
When a trial court sustains a demurrer, we review the
complaint de novo to determine whether, as a matter of law, it
states facts sufficient to constitute a cause of action. (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Reading the
complaint as a whole and giving it a reasonable interpretation,
6 The Regents also filed a motion to strike portions of the
first amended complaint.
8
we treat all material facts properly pleaded as true. (Ibid.) The
plaintiff has the burden of showing that the facts pleaded are
sufficient to establish every element of the cause of action and
overcome all legal grounds on which the trial court sustained the
demurrer, and if the defendant negates any essential element, we
will affirm the order sustaining the demurrer as to the cause of
action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th
857, 879–880.) We will affirm if there is any ground on which the
demurrer can properly be sustained, whether the trial court
relied on proper grounds or the defendant asserted a proper
ground in the trial court proceedings. (Id. at p. 880, fn. 10.)
Where a trial court has sustained a demurrer without leave
to amend, if the plaintiff demonstrates there is a reasonable
possibility the defect can be cured by amending the pleading, we
will find that the trial court abused its discretion in denying
leave to amend. (Zelig v. County of Los Angeles, supra, 27
Cal.4th at p. 1126.)
II. Sharif failed to exhaust her administrative remedies as to
the discrimination causes of action.
The trial court found that Sharif failed to exhaust her
administrative remedies as to her discrimination causes of action
because she did not comply with UCLA’s internal grievance
procedure. We agree.7
The Regents is a state government entity that administers
the policies of the University of California. (Campbell v. Regents
7The Regents concede that Sharif exhausted her
administrative remedies as to her other causes of action for
implied in fact contract, promissory estoppel, due process, and
declaratory relief.
9
of University of California, supra, 35 Cal.4th at p. 317.) As such,
those policies enjoy a status equivalent to that of state statutes.
(Id. at p. 320.) Hence, where the Regents provide an
administrative remedy via its policies, that remedy must be
exhausted before resorting to the courts. (Id. at p. 321; Gupta v.
Stanford University (2004) 124 Cal.App.4th 407, 411.) The rule
of exhaustion of administrative remedies is a fundamental rule of
procedure and a jurisdictional prerequisite to a court action.
(Campbell, at p. 321; see Westlake Community Hospital v.
Superior Court (1976) 17 Cal.3d 465, 485 [doctor denied hospital
staff privileges had to exhaust internal remedies before
instituting judicial action].) The rule has the important benefits
of mitigating damages, recognizing the quasi-judicial tribunal’s
expertise, and promoting judicial economy by unearthing
relevant evidence and providing a record in case of review.
(Campbell, at p. 322.)
In this case, the parties cite the following UCLA policies
governing how a student may raise allegations of discrimination:
(1) the Standards and Procedures and (2) UCLA Procedure 230.2,
Student Grievances Regarding Violations of Anti-discrimination
Laws or University Policies on Discrimination on Basis of
Disability.8
8 The parties also cursorily cite UCLA Procedure 230.1(II),
which applies to student grievances alleging discrimination on
the basis of race, color, national or ethnic origin, alienage, sex,
religion, age, sexual orientation, gender identity, marital status,
veteran status, or physical or mental disability. The procedure
provides for a hearing and requires a formal grievance that
specifies the grievance and the policy violated.
10
First, Sharif alleged that she relied on and followed the
Standards and Procedures. Those Standards and Procedures
state that lack of progress toward a degree is a ground for
disqualification from a graduate program. The Graduate Dean
has final authority over a disqualification decision, and an
“appeal can go no higher.” A disqualified student may ask the
Dean of the Graduate Division to reconsider the decision, but
“appeals will be considered only if based upon appropriate cause
such as: (a) procedural error, (b) judgments based upon non-
academic criteria, (c) personal bias, (d) specific mitigating
circumstances contributing to performance, or, (e) discrimination
on the basis of race, sex, or handicap not pertaining to required
academic performance.” In cases of appropriate cause, the Dean
of the Graduate Division will refer the appeal to the Graduate
Council Committee on Degree Programs, which will then make a
recommendation to the Dean how to dispose of the case. The
Dean then makes a final decision. Relying on and following
UCLA’s Standards and Procedures, Sharif appealed but the Dean
upheld her disqualification.
Second, UCLA Procedure 230.2(V)(A) applies to grievances
alleging harassment or discrimination based on physical or
mental disability. A student raising such a claim must file a
formal grievance identifying “the facts that the Student believes
demonstrate that Disability Discrimination and/or Retaliation
has occurred. The Student may also identify the law and/or
policy believed to have been violated, and may include the
preferred remedy.” UCLA Procedure 230.2 then details what
happens after a grievance is filed: investigation, a hearing and
decision, and an appeals process.
11
Sharif points out that the Regents argued in its demurrer
that she failed to follow UCLA Procedure 230.2 and did not
address the Standards and Procedures, which is what Sharif
expressly referred to in her operative pleading. On appeal, the
Regents acknowledge that Sharif was entitled to follow the
Standards and Procedures, although they assert that UCLA
Procedure 230.2 was an “alternative” process Sharif could have
followed to exhaust her administrative remedies.
Sharif characterizes the Regents’ position on appeal that
UCLA Procedure 230.2 provided an alternative process as an
“about-face.” Even if it is, it is also a concession. That is, Sharif
alleged that the Regents referred her to the Standards and
Procedures; accordingly, that is what she followed to exhaust her
administrative remedies. The Regents now agree that Sharif
could exhaust her administrative remedies by following the
grievance procedure detailed in the Standards and Procedures.
The disagreement is about how Sharif followed the
grievance procedure and not about what procedure she followed.
Stated otherwise, the dispute about which grievance procedure
Sharif should have followed is largely immaterial. Significantly,
both the Standards and Procedures and UCLA Procedure 230.2
required Sharif to identify the specific grounds for her grievance.
The Standards and Procedures thus required Sharif to identify
an “appropriate cause” for her appeal. The Standards and
Procedures identified five such grounds, which included
procedural error, specific mitigating circumstances contributing
to performance, and discrimination on the basis of race, sex, or
handicap.
Sharif, however, did not identify discrimination on the
basis of sex, marital status, disability, or otherwise in her
12
grievance. She instead alleged there was appropriate cause to
overturn the disqualification decision on only two grounds:
procedural error and mitigating circumstances. Sharif identified
as mitigating circumstances a “number of personal
circumstances” that “contributed to” her prolonged time to
degree. She then listed those personal circumstances: marital
status, family financial responsibilities, pregnancy, child and
parent caregiving responsibilities, adjustments to her project,
and her personal disability. Sharif identified those personal
circumstances as reasons why it was taking her so long to achieve
her degree. She did not identify them as ways in which she had
been discriminated against that prevented her from achieving
her Ph.D. Sharif also suggests that she gave notice to the
Regents that she was claiming discrimination based on disability
by attaching to her appeal a letter from a psychologist attesting
to her disabling condition and recommending accommodation.9
However, telling the Regents she had a disability and requesting
accommodation is not the same as notice of a claim of
discrimination based on a disability. She therefore failed to
exhaust her administrative remedies because she did not alert
the Regents that discrimination was a ground for her
grievance.10
9 Sharif did not attach the letter to her operative complaint.
10 Given the Regents’ concession that Sharif could follow
the Standards and Procedures and our resolution of this issue, we
need not address Sharif’s contention that the Regents should be
estopped from claiming she failed to exhaust her administrative
remedies per UCLA Procedure 230.2. As we have said, the
Regents now agree that Sharif could raise any grievance she had
13
Finally, Sharif appears to make a cursory argument that
she was not required to exhaust her administrative remedies as
to her second cause of action for discrimination (Gov. Code,
§ 11135) and third cause of action for discrimination under the
Unruh Civil Rights Act. However, the cases she cites do not
directly address or hold that such causes of action are exempt
from the exhaustion doctrine. (See, e.g., Donovan v. Poway
Unified School Dist. (2008) 167 Cal.App.4th 567, 594 [plaintiff
may bring private right of action for equitable or injunctive relief
under Gov. Code, § 11135];11 Blumhorst v. Jewish Family
Services of Los Angeles (2005) 126 Cal.App.4th 993, 1002
[addressing standing]; Payne v. Anaheim Memorial Medical
Center, Inc. (2005) 130 Cal.App.4th 729, 732–733, 743–744
[plaintiff did not have to exhaust administrative remedies in
Unruh Civil Rights Act action because defendant’s internal
grievance procedures were inadequate].) We decline to read more
into those opinions than what they directly address. (See, e.g., In
by following the Standards and Procedures or by following UCLA
Procedure 230.2. The Regents simply disagree that she raised
discrimination at all.
11 Donovan v. Poway Unified School Dist., supra, 167
Cal.App.4th at pages 592 to 596, considered whether money
damages are available for a violation of Education Code section
220. Donovan, at page 594, noted that Education Code section
220 is similar to Government Code section 11135, which may be
enforced by a civil action for equitable relief, which shall be
independent of other rights and remedies. To the extent
Donovan might support a conclusion that one need not exhaust
administrative remedies before pursuing equitable remedies, it is
dictum.
14
re Chavez (2003) 30 Cal.4th 643, 656 [case is authority only for
proposition actually considered].)
III. Sharif’s contract-based causes of action.
Turning to Sharif’s causes of action for implied-in-fact
contract and promissory estoppel, we now explain why contract
law is an inappropriate context in which to raise her claims in
this case.12
The basic relationship between a student and a university
has been described as contractual in nature. (Kashmiri v.
Regents of University of California (2007) 156 Cal.App.4th 809,
823–824; Zumbrun v. University of Southern California (1972)
25 Cal.App.3d 1, 10; see Paulsen v. Golden Gate University (1979)
25 Cal.3d 803, 811 (Paulsen).) However, courts also have
recognized that contract law should not be strictly applied in this
context due to the uniqueness of that relationship. (Kashmiri, at
p. 824.) In that relationship, universities have the widest range
of discretion in making judgments about their students’ academic
12The Regents urge us not to address the merits of the
individual causes of action because Sharif did not address them
in her opening brief on appeal. Sharif therefore has arguably
forfeited any issue as to the substantive merits of her causes of
action. However, as our review is de novo and requires us to
uphold the sustaining of a demurrer if correct for any reason,
even one not relied on by the trial court, we exercise our
discretion to review whether Sharif stated facts sufficient to
constitute the causes of action.
In their respondent’s brief on appeal, the Regents also ask
to file supplemental briefing if we address the merits of the
causes of action. The request is denied, as the Regents did
address the merits in their brief.
15
performance and entitlement to promotion or graduation, and
judicial review of such a judgment is “a ‘narrow avenue’
restrained by ‘[c]onsiderations of profound importance.’ ”
(Lachtman v. Regents of University of California (2007)
158 Cal.App.4th 187, 203–204 (Lachtman).) Courts therefore
have often declined to strictly apply a contract-based challenge to
universities’ academic and disciplinary decisions because courts
are not qualified to review decisions concerning a student’s
academic qualifications. (Kashmiri, at pp. 824–826.) Still, where
an educational institution has made a specific promise to provide
an educational service, such as certain classes or a promised
number of instructional hours, courts will apply contract law.
(Id. at p. 826.)
Here, Sharif asserted two contract-based causes of action.
The first, implied-in-fact contract, has the same essential
elements as an express contract, namely, mutual assent and
consideration. (Chandler v. Roach (1957) 156 Cal.App.2d 435,
440.) The difference between the two is that in the former, the
promise is implied from the promisor’s conduct, rather than
expressed in words. (Ibid.) Similarly, the elements of her second
cause of action for promissory estoppel are (1) a clear and
unambiguous promise; (2) reliance by the party to whom the
promise is made; (3) reasonable and foreseeable reliance; and
(4) the party asserting the estoppel must be injured by the party’s
reliance. (US Ecology, Inc. v. State of California (2005)
129 Cal.App.4th 887, 901.)
Both causes of action require a clear and specific
representation, either by conduct or in words. As we understand
the operative complaint, the representation or promise Sharif
contends the Regents made to her is that she would receive a
16
Ph.D. or have the opportunity to receive one. This promise,
Sharif further alleges, arose by virtue of her paying tuition and
fees, matriculating, completing her courses, teaching, remaining
in good standing throughout her graduate studies, and working
on her dissertation. Moreover, two weeks after Sharif submitted
her draft dissertation, a member of Sharif’s doctoral committee
told Sharif that she was eligible for the fall filing fee, which “ ‘is
intended for students who are in good academic standing and
who have completed all degree requirements except for filing
their dissertation.’ ”
To be sure, Sharif’s payment of tuition and work toward
her degree establish that she had a contract-based relationship
with the Regents. (See, e.g., Andersen v. Regents of University of
California (1972) 22 Cal.App.3d 763, 769.) But her allegations do
not establish that any such contract contained a guarantee she
would obtain a Ph.D. Neither Sharif’s normal activities in
pursuit of her doctorate nor the isolated comment about her
eligibility for the fall filing fee constituted a promise—implied or
otherwise—that she would get a doctorate. That Sharif, for
example, paid tuition and was in good standing are things that
she did, not promises the Regents made. As such, they might go
to the existence of a contract and to the reliance element of her
causes of action, but they do not constitute a promise by the
Regents that she would get a Ph.D. All that the allegations
otherwise show is that Sharif had a relationship with the Regents
and that she engaged in those activities that all doctoral students
must do in pursuit of a degree.
Nor does the committee member’s statement that Sharif
was eligible for the fall filing fee constitute a representation that
Sharif would get her doctorate or that her uncompleted
17
dissertation was satisfactory. And insofar as Sharif contends
that she was promised the opportunity to complete her degree,
then her operative pleading establishes she was given that
opportunity for about 10 years.
Moreover, matters judicially noticeable contradict her
allegation that she was promised a degree. The Standards and
Procedures detailed the requirements for a doctoral degree,
including completing an approved dissertation and achieving the
degree within a normative time. Failure to progress toward a
degree is a listed ground for disqualification from a graduate
program. What these judicially noticeable matters establish is
that there were prerequisites to an award of a Ph.D., and Sharif
knew about them. The mere existence of such prerequisites,
including a normative time to degree, undercuts her claim she
was promised a degree.
These allegations thus fall short of creating a contractual
basis for Sharif’s claims. They do not establish either an implied-
in-fact contract that Sharif would receive a Ph.D., or that specific
promises were made to her such that the Regents must be
estopped from disqualifying Sharif. The notion of a promise that
Sharif would receive her Ph.D. is contrary to the very idea of
what it means to pursue and to earn a graduate degree. For
these reasons, Sharif’s allegations do not state the contract-based
causes of action as a matter of law. And, as Sharif has not
addressed the merits of her causes of action and does not state
how she could amend her complaint, the trial court did not abuse
its discretion in denying her leave to amend.
That being said, to the extent Sharif alleges that she had a
contractual right to due process, those allegations are better
addressed in her due process cause of action, to which we now
18
turn. (See, e.g., Award Metals, Inc. v. Superior Court (1991)
228 Cal.App.3d 1128, 1135 [demurrer properly sustained to
duplicative cause of action adding nothing by way of fact or
theory].)
IV. The due process and declaratory relief causes of action
Sharif alleged that the Regents denied her due process
because it unfairly, unreasonably, and for arbitrary reasons
failed to afford her a fair and reasonable opportunity to complete
the Ph.D. program. As we now explain, we agree that she can
proceed on this cause of action.
Although no “United States or California Supreme Court
opinion holds a student has a property or liberty interest in
continued enrollment in good standing in an academic program,”
courts have assumed that students have a protected interest in
maintaining enrollment in an academic program. (Lachtman,
supra, 158 Cal.App.4th at p. 199.) In raising a violation of that
interest, courts have recognized that procedural and substantive
due process protections are afforded to students.
Procedural due process is satisfied if the university informs
the student of its dissatisfaction with the student’s academic
performance, informs the student of the consequences of deficient
performance, and a decision regarding the student’s academic
progress is careful and deliberate. (Lachtman, supra, 158
Cal.App.4th at p. 201.) However, procedural due process does not
require a university to provide a student a formal hearing. (Ibid.)
Substantive due process rights will be violated if the
challenged decision was the product of arbitrary state action
rather than a conscientious, careful, and deliberate exercise of a
professional judgment. (Lachtman, supra, 158 Cal.App.4th at
p. 204; accord, Paulsen, supra, 25 Cal.3d at p. 809; Banks v.
19
Dominican College (1995) 35 Cal.App.4th 1545, 1551 [court may
overturn decision dismissing student for academic reasons
resulting from irrelevant or discriminatory factors]; Shuffer v.
Board of Trustees (1977) 67 Cal.App.3d 208, 219–220; Wong v.
Regents of University of California (1971) 15 Cal.App.3d 823,
830–832.)
As to her procedural due process rights, Sharif does not
appear to contend that a formal hearing was required before she
could be disqualified for failing to complete her degree in the
normative time or for turning in an unsatisfactory dissertation
draft, nor could she. (See, e.g., Lachtman, supra, 158
Cal.App.4th at p. 201.) Instead, a fair reading of her operative
pleading is that her procedural due process rights were violated
because the department did not give her notice it was dissatisfied
with her performance and of the consequences of failing to meet
her dissertation deadline. She alleged that the first time anyone
mentioned her progress was at the September 2016 meeting,
when the deadline to submit her dissertation was established. At
that meeting, nobody mentioned she had exceeded the normative
time to degree or could be disqualified if she failed to meet the
schedule. Instead, she alleged that the department first told her
of its dissatisfaction with her progress in September 2017, when
it simultaneously recommended terminating her doctoral status.
However, the 2003 UCLA Graduate Student Academic
Rights and Responsibilities handbook stated that graduate
students “have the right to know the normative time to degree,
the average time to degree, and the maximum allowed time to
degree within their graduate programs,” and this information
“should be explicitly communicated to newly admitted students.”
It also stated that any intent to dismiss a student from a
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graduate program must be preceded by specific written
performance information, well in advance of actual dismissal.
While the handbook referred to the Standards and Procedures,
the Standards and Procedures did not state that the normative
time for her doctorate was six years. The 2017-2018 Graduate
Handbook did contain this six-year normative time to degree, but
no prior handbook mentioned a maximum time to degree. In
sum, UCLA’s own materials stated that students must be
informed of the normative time to degree; yet Sharif alleged that
she was never told that the normative time was six years.
Also, contrary to the mandate that a student be told of an
intent to dismiss them well in advance of actual dismissal, Sharif
alleged she received no such notice. She alleged, instead, that
she was first told that she was being disqualified as a doctoral
candidate in September 2017, and was actually disqualified two
months later, after exhausting her administrative remedies. The
Regents suggest that Sharif did have such notice; that is, she had
a one year probationary period that began in September 2016
when the executive committee set the dissertation deadline.
However, that is a factual dispute, but we accept the factual
allegations in the operative complaint as true on demurrer. (See,
e.g., Richtek USA, Inc. v. uPI Semiconductor Corp. (2015)
242 Cal.App.4th 651, 659–660.)
Finally, evidence that a student was treated differently
from others in a like situation may be relevant to show the
university acted arbitrarily or in bad faith. (Paulsen, supra,
25 Cal.3d at p. 809.) Sharif alleged that no doctoral candidate
has been disqualified for failing to meet the normative time to
degree, and former and current students have or are taking
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longer to obtain their degrees. In short, Sharif alleged that she
was treated differently from other doctoral candidates.
Based on these allegations, Sharif may proceed on her due
process cause of action, as well as her cause of action for
declaratory relief insofar as it is dependent on and relates to the
alleged due process violations. In so finding, we recognize that
courts will rarely intervene in a university’s academic affairs,
particularly in actions challenging a university’s academic
decisions regarding a student’s qualification for a degree.
(Paulsen, supra, 25 Cal.3d at p. 808; Banks v. Dominican College,
supra, 35 Cal.App.4th at p. 1551.) Still, cases upholding such
refusals to intervene are generally reviewing summary judgment
motions, after the development of evidence. (See, e.g., Lachtman,
supra, 158 Cal.App.4th at p. 192; Banks, at pp. 1547–1548.) Our
review is after the sustaining of a demurrer. Given this
procedural posture, we cannot find at this stage of the
proceedings, when we must view the allegations of the complaint
as true, that Sharif has not stated facts sufficient to constitute
the cause of action.
V. Sharif was not required to pursue an administrative writ.
Having found that Sharif may proceed on her due process
and declaratory relief causes of action, we address the Regents’
argument that those causes of action are nonetheless barred
because Sharif failed to exhaust her judicial remedies. As we
now explain that doctrine does not bar the entire lawsuit.
The doctrine of exhaustion of judicial remedies precludes
an action challenging the result of a quasi-judicial proceeding
unless the plaintiff first challenges the decision via a petition for
writ of mandamus. (Johnson v. City of Loma Linda (2000)
24 Cal.4th 61, 70.) The doctrine accords proper respect to an
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administrative agency’s quasi-judicial procedures by precluding a
party from circumventing the established process for judicial
review of such decisions by means of a petition for administrative
mandate and provides a uniform practice of judicial, rather than
jury, review of quasi-judicial administrative decisions. (Ibid.)
The doctrine thus applies where “there has been an adjudicatory,
quasi-judicial decision in accordance with established public or
private procedures,” and “the prior administrative proceedings
possessed the requisite ‘judicial character’ such that they yielded
decisions or findings that could later be given preclusive effect.”
(Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San
Jose (2009) 174 Cal.App.4th 339, 361.)
The Regents urge us to apply the doctrine and to conclude
that Sharif had to pursue any review of its decision to disqualify
her via an administrative writ, either under section 1094.5 or
1085. Section 1094.5, subdivision (a), provides for the issuance of
a writ of mandate where the writ is issued to inquire into “the
validity of any final administrative order or decision made as the
result of a proceeding in which by law a hearing is required to be
given, evidence is required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal,
corporation, board, or officer.” (Italics added.) Section 1085,
subdivision (a), provides for the issuance of a writ to any inferior
tribunal “to compel the performance of an act which the law
specially enjoins, as a duty resulting from an office, trust, or
station, or to compel the admission of a party to the use and
enjoyment of a right or office to which the party is entitled, and
from which the party” has been unlawfully precluded.
Section 1094.5 does not apply here, because the Standards
and Procedures that Sharif followed did not require or entitle her
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to a hearing; hence, she had none. And, as we have said, the
Regents concede on appeal that Sharif was entitled to follow
those Standards and Procedures. They further concede that
Procedures 230.1 and 230.2, which would have given her the
right to a hearing, offered an “alternative” process. Given these
concessions, the Regents cannot now argue that Sharif had to
bring a petition for a writ of mandate under section 1094.5
merely because she had the opportunity for a hearing under the
alternative process in Procedures 230.1 and 230.2.
Therefore, ordinary mandate under section 1085 is most
applicable because it is used to review adjudicatory decisions
when the agency was not required to hold an evidentiary hearing.
(See generally American Board of Cosmetic Surgery v. Medical
Board of California (2008) 162 Cal.App.4th 534, 547 [mandamus
under § 1085 is used to compel ministerial duty or to correct
abuse of discretion]; Bunnett v. Regents of University of
California (1995) 35 Cal.App.4th 843, 848; Wellbaum v. Oakdale
Joint Union High School Dist. (1977) 70 Cal.App.3d 93, 96 [where
petition challenges agency’s failure to perform act required by
law rather than the conduct or result of an administrative
hearing, remedy is by ordinary mandate].) A ministerial duty is
an act that must be performed in a prescribed manner according
to the mandate of legal authority without the exercise of
discretion or judgment. (Kavanaugh v. West Sonoma County
Union High School Dist. (2003) 29 Cal.4th 911, 916.) To
establish entitlement to relief, the moving party must
demonstrate the agency’s action was arbitrary, capricious or
entirely without evidentiary support, or failed to conform to
procedures required by law. (People for Ethical Operation of
Prosecutors etc. v. Spitzer (2020) 53 Cal.App.5th 391, 407.)
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Although we agree that Sharif could have sought a writ
under section 1085, the Regents have not cited authority holding
that it was her only avenue of relief. Rather, the cases the
Regents cite involved grievance processes in which hearings were
held or were offered. (See, e.g., Gupta v. Stanford University,
supra, 124 Cal.App.4th at p. 409 [where plaintiff had evidentiary
hearing, judicial review had to be pursued under § 1094.5];
Gutkin v. University of Southern California (2002) 101
Cal.App.4th 967, 971, 978–979 [same]; Pomona College v.
Superior Court (1996) 45 Cal.App.4th 1716, 1727–1730 & fn. 10
[same].) Other cases the Regents cite did not expressly hold that
a writ under section 1085 is the exclusive avenue of relief. (See,
e.g., Shuffer v. Board of Trustees, supra, 67 Cal.App.3d at p. 218
[stating only that ordinary mandate is a “proper” remedy, not
only remedy]; Wong v. Regents of University of California, supra,15 Cal.App.3d 823; see Alborzi v. University of Southern
California (2020) 55 Cal.App.5th 155, 162, 176 [doctor did not
have to exhaust judicial remedy under § 1085].) As we have said,
a case is authority only for a proposition actually considered and
decided. (In re Chavez, supra, 30 Cal.4th at p. 656.)
In the absence of clear authority holding that Sharif had to
exhaust her judicial remedies by first seeking a writ of mandate
under section 1085 before filing this action, we conclude that she
may pursue her due process and declaratory relief causes of
action.
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DISPOSITION
The judgment is reversed as to the sixth and seventh
causes of action with the direction to the trial court to overrule
the demurrer as to them. The judgment is affirmed as to the
remaining causes of action. The parties shall bear their own
appellate costs.
NOT TO BE PUBLISHED.
WINDHAM, J.*
We concur:
CHAVEZ, Acting P. J.
HOFFSTADT, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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